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Showing 101 to 120 of 355 Records

• 1995 (11) TMI 382
  

  Whether delay itself would be a ground to set aside the award?

  Whether respondent should be compensated considerably by awarding interest thereunder?

  Held that:- If compensation was accepted without protest, it binds such party but subject to Section 28A. Possession of the acquired land would be taken only by way of a memorandum, Panchanama, which is a legally accepted norm. It would not be possible to take any physical possession. Therefore, subsequent continuation, if any, had by the erstwhile owner is only illegal or unlawful possession which does not bind the Government nor vested under Section 16 divested in the illegal occupant. Considered from this perspective, we hold that the High Court was not justified in interfering with the award.

  Delay in making the first award is compensated by award of additional amount under Section 23(1A) and interest under Section 28 of the Act as amended by Act 68 of 1984 which has taken care to set off the delay in making the award. Under these circumstances, the respondents are adequately compensated for loss, if any, for denial of enjoying the lands from the date of taking possession till date of deposit. The appeals are allowed accordingly.

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• 1995 (11) TMI 381
  

  Whether extraordinary discretionary jurisdiction vested in the High Court under Article 226 of the Constitution of India was improperly invoked?

  Held that:- The 1st respondent was unjustified in invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India, without first showing cause against Annexure Ext. P-4 before the 3rd respondent. The appropriate procedure for the 1st respondent would have been to file his objections and place necessary materials before the 3rd respondent and invite a decision as to whether the proceedings initiated by the 3rd respondent under Section 59 of the Bihar State Housing Board Act, 1982, are justified and appropriate. The adjudication in that behalf necessarily involves disputed questions of fact which require investigation. In such a case, proceedings under Article 226 of the Constitution can hardly be an appropriate remedy. The High Court committed a grave error in entertaining the Writ Petition and in allowing the same by quashing Annexure Ext. P-4 and also the Eviction proceedings No. 6/92, without proper and fair investigation of the basic facts. We are, therefore, constrained to set aside the judgment of the High Court of Patna in CWJC NO. 82/93 dated 10.2.1993. We hereby do so. The appeal is allowed with costs.

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• 1995 (11) TMI 380
  
  ... ...
  ... ... ..... contravention of express provisions of the statute. The power of condonation of delay being not there after the expiry of 60 days period we do not have any power to consider this prayer for condonation of delay with reference to an appeal which has been received in the Registry of the Tribunal after the expiry of 60 days of the receipt of the impugned order by the appellant, as per his own showing. We also cannot entertain plea made by Shri Umapathi, for the exercise of inherent power because we are firmly of the view that no inherent power can be invoked in face of or to override the express statutory provisions, as an occasion for considering exercise of inherent power arises only if the statute is silent on a particular point. As already discussed, here in this Act, there is an express limit of sixty days. We are, therefore, constrained to dismiss the application for condonation of delay. The appeal was not admitted for this reason and stands rejected being barred by time.

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• 1995 (11) TMI 379
  

  Whether the order dismissing the appellant from service is invalid in law for non-supply of the inquiry report?

  Whether the charge of being in possession of assets disproportionate to his known source of income is a misconduct?

  Whether the delay in initiating disciplinary proceeding is an unfair procedure depriving the livelihood of a public servant offending Article 14 or 21 of the Constitution?

  Whether the inquiry was held by a competent officer?

  Held that:- The availability of appeal etc. to public servants does not make a real difference, as the appellate/revisional authority is known to have taken a different view on the question of sentence only rarely. I would, therefore, think that but for the self-imposed limitation while exercising power under Article 226 of the Constitution, there is no inherent reason to disallow application of judicial mind to the question of proportionately of punishment/penalty. But then, while seized with this question as a writ court interference is permissible only when the punishment/penalty is shockingly disproportionate.

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• 1995 (11) TMI 378
  

  Scrap manufactured and removed clandestinely - product was fully exempt from duty under Notification No. 180/61 - goods exempted from duty are not includible within the definition of `excisable goods' as defined in clause (d) of Section 2 - appellant says, he was under the bona fide impression that he need not mention the value - Held that: - department was aware of import of input by several importers and large quantities over a period of time - it cannot be said that the department was not aware of its use - levy of duty, is barred by limitation - appeals allowed

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• 1995 (11) TMI 376
  

  Valuation - Contract work

  
  
  ... ...
  ... ... ..... the correct amount. It is for the Department to work out the amount afresh and intimate the same to the appellants. If there are any errors in the demand, it shall be open to the appellants to approach the authority concerned with appropriate submissions to which, no doubt, the authority will give due consideration before taking any final view in the matter. 7. emsp In the result, the impugned orders are modified by holding the appellants are entitled to deduction of additional trade discount given by M/s. Berger Paints (India) Ltd. to its dealers on sale of products manufactured by the appellants as also the cost of secondary packing relating to such products. The demand made by the Supdt. as per letter dated 23-5-91, is also set aside. It is open to the appropriate authority to quantify the amount due in the light of this order and issue a fresh demand in accordance with law and observations contained in this order. The appeals are accordingly, allowed, as indicated above.

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• 1995 (11) TMI 375
  
  ... ...
  ... ... ..... such ex-factory price shall be the basis for determination of value under Section 4 of the CESA, 1944 and the question of transportation charges become irrelevant. 4. emsp Shri Vipin Handa submitted that quantum of percentage of sales at factory gate was negligible compared to the sales at sales depot. 5. emsp On a careful consideration of the submissions made by both sides with reference to the facts, we find that there was no finding by the adjudicating authority regarding the quantum of percentage which took place at the factory gate sales. On the other hand it was clearly admitted by the department that there was a factory gate sales. In the absence of any evidence to show that factory gate sales was not genuine and since the ex-factory price is ascertainable, following the ratio of the decision of the Supreme Court, we uphold the impugned order passed by the Collector (Appeals) in all these appeals and accordingly the appeals filed by the department are hereby dismissed.

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• 1995 (11) TMI 374
  

  Winding up - Suit stayed on winding up order, Custody of company’s property

  
  
  ... ...
  ... ... ..... company (in liquidation) from the receiver. I further direct that it shall be open to the parties concerned to approach the winding up court for further orders, if necessary, after the parties obtain appropriate orders from the Bombay High Court with regard to the continuance of the receiver and the sale of the assets of the company in liquidation. 6. As a result, the application (A-18) is partly allowed in the light of the observations made above and subject to the condition that leave to continue the proceedings of Suit No. 2945 of 1990 pending in the High Court of Judicature at Bombay to the applicant-bank under section 446(1) is granted with this condition that the said applicant will deposit a sum of Rs. 15,000 with the official liquidator within six weeks from today and, further, that the decree, if any obtained by the applicant-bank in the aforesaid suit shall not be executed without obtaining further orders from this court where the winding up proceedings are pending.

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• 1995 (11) TMI 373
  

  Winding up - Circumstances in which a company may be wound up

  
  
  ... ...
  ... ... ..... d. On principle, to permit such defence would only result in encouraging fraudulent preference on the part of the company in paying the dues to its creditors which is contrary to public policy. 22. I am, therefore, satisfied that the petitioner has made out a case for admission of this petition. This petition is, therefore, admitted. 23. Advertisement of this petition shall, however, be deferred till 1-1-1996, to enable the respondent to pay the sum of Rs. 4 crores and Rs. 21.46 lakhs together with interest thereon at 15 per cent from 1-4-1993, as such amounts are due and payable to the petitioner even according to the case set up by the respondent-company. 24. The learned counsel for the parties referred to several rulings which I do not consider it necessary to discuss as, on the facts of this case, I have come to the conclusion that this is a fit case for being admitted, the advertisement of this petition being deferred in the manner indicated above. 25. Petition admitted.

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• 1995 (11) TMI 372
  

  Oppression and Mismanagement, Winding-up - Circumstances in which a company may be wound up

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• 1995 (11) TMI 363
  

  Refund on reconditioning of returned goods

  
  
  ... ...
  ... ... ..... sponding nearly as possible to the state it was in, after manufacture. This would involve removal of the defects and restoration of the wear and tear which would have taken place during use in the exhibition. We consider such a process to be reconditioning. The term is defined in the McGraw Hill Dictionary of Scientific and Technical Terms as restoration of an object to a good condition. Reconditioning is one of the processes specified in Rule 173L. In addition to reconditioning the machines were also been subjected to the processes indicated above. This being the only reason cited by the Collector, benefit of notification under Rule 173L and consequent refund of duty is available in respect of these machines. 4. emsp The first appeal (No. 1674/85-NB) therefore, succeeds and is allowed. It would follow that when the machines were cleared after the reconditioning, duty would be payable on them. Therefore, the second appeal (E/394/91-NB) would not succeed and is thus dismissed.

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• 1995 (11) TMI 358
  

  Exigibility to sales tax on the transactions in question challenged on the ground that the sale was in the course of export.

  Held that:- Appeal allowed. It would not be just and proper to deny relief to the appellant, which is otherwise due, on the ground that earlier it had only assailed the question of exigibility to tax. It is correct that the plea now taken could have been advanced earlier as well, but the fact this was not done, should not be a ground to deny the relief which is otherwise due to the appellant. The technical plea of constructive res judicata should not stand in the way of the appellant in a case of the present nature.

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• 1995 (11) TMI 352
  

  Restrictions on payments, Power to search suspected persons or seize documents, Power to arrest, Power to search premises, Power to summon persons to give evidence and produce documents, Power to adjudicate

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• 1995 (11) TMI 350
  

  Winding up – Suits stayed on winding-up order

  
  
  ... ...
  ... ... ..... ge of the High Court and the sale proceeds be deposited in the court and then distributed in accordance with the directions of the learned company judge. I have considered over the matter. In view of the order passed by the apex court it is directed that the RIICO and RFC shall remain out of winding up proceedings subject to submission of their claims before the official liquidator within one month from today. The RIICO would take appropriate steps for sale by advertisement immediately. The sale proceedings would be conducted in consultation with the official liquidator who would be informed of each date of proceedings. The sale would be subject to confirmation by this court. The final order with regard to total liability and other points would be passed after the sale proceedings are concluded. The amount, if any, realised would be kept by the RIICO in a separate account for which appropriate orders will be passed subsequently. The applications stand disposed of accordingly.

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• 1995 (11) TMI 342
  

  Whether the respondent-unit qualifies as a "new unit" within the meaning of Explanation (i) to sub-section (2) of section 4-A of the U.P Sales Tax Act?

  Held that:- Appeal allowed. There is no room for contention of Sri Dhaon in view of the specific language of clause (a). The clause uses all the three words-machinery, accessories or components. The use of the word "or" indicates that use of either of them, which are already used or acquired for use in any other factory or workshop in India, would disqualify the factory or workshop from being called a "new unit" within the meaning of section 4-A. The clause does not say or indicate in any manner that only where the entire machinery installed in the unit (claiming to the new unit) has already been used or was acquired for use in any other factory or workshop in India, that the disqualification contained therein gets attracted. In the face of the clear language of the clause, it is not possible to entertain the submission of substantial compliance urged by Sri Dhaon.

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• 1995 (11) TMI 339
  

  Whether any penalty has been levied in this case, and if so, on what ground?

  Held that:- Appeal allowed. The two notices/orders impugned in the writ petition are ambiguous and do not make it clear whether the amount of Rs. 5,000 mentioned therein is a tax or a penalty. The impugned notices also speak of fine but do not say, under which provision are they levied. In these circumstances, the proper course is to quash the two orders/notices impugned in the writ petition with a direction to the assessing authority to pass appropriate orders afresh in accordance with law, after hearing the assessee, keeping in view the position of law explained in this judgment. The authority can also ascertain whether the appellant' s case that he has deposited Rs. 10,000 in advance is correct and, if so, what is its effect in law-and its relevance in the matter of levy of penalty, fine or interest.

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• 1995 (11) TMI 331
  
  ... ...
  ... ... ..... Code for permission to conduct the prosecution filed by the original complainant, within a period of six weeks from today. On such application being filed, the learned Magistrate shall permit the said new company to continue the prosecution under section 302, Criminal Procedure Code. The name of the old company shall continue in the cause title of the complaint. But below the name of the complainant, amendment may be made as prosecution permitted to be conducted by the new company by mention- ing the name and address of the new company . 16. In the result, both Criminal Revision Application No. 319 of 1994 and Criminal Application No. 2103 of 1995 are hereby dismissed. The order of framing charges by the learned Magistrate is confirmed, subject to the observations made in para 14. The trial Court is directed to expedite the trial of the case and dispose it of within four months from the date of receipt of the copy of this order. Criminal Revisions dismissed SCL q APRIL, 1997

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• 1995 (11) TMI 330
  
  Issues Involved:
  1. Limitation of the claim.
  2. Acknowledgment of debt.
  3. Bona fide disputed debt.
  4. Just and equitable grounds for winding up.
  
  Summary:
  
  1. Limitation of the Claim:
  The petition for winding up the respondent company was filed u/s 433(e) and (f) read with sections 434(a) and 439(1)(b) of the Companies Act, 1956. The petitioner claimed to have advanced Rs. 71,00,000 to the respondent between July 2, 1985, and March 8, 1990, with interest. The court noted that the petitioner did not take any action within three years from April 2, 1990, to enforce its claim, and there was no acknowledgment of liability for the amount claimed by the petitioner after this date. The court emphasized that claims made beyond the prescribed period of limitation must be dismissed as per section 3 of the Limitation Act.
  
  2. Acknowledgment of Debt:
  The petitioner relied on acknowledgments dated January 21, 1994, and January 24, 1994, which confirmed a sum of Rs. 19,03,500. This amount was paid by the respondent by cheques, and the petitioner's counsel reported the receipt to the court on September 14, 1994. The court held that the petitioner cannot claim to be a creditor for sums barred by limitation and that the acknowledgment of Rs. 19,03,500 does not extend the limitation period for the remaining claim.
  
  3. Bona Fide Disputed Debt:
  The respondent contended that the petitioner's claim was collusive and disputed any amount in excess of Rs. 19,03,500. The court found that the petitioner's failure to produce its documents and the alleged benami accounting indicated that the claim was speculative. The court held that the debt claimed, except for the admitted amount, was a bona fide disputed debt for which the company had a prima facie defense. A winding-up petition for a disputed debt intended to pressurize the company would not lie.
  
  4. Just and Equitable Grounds for Winding Up:
  The petitioner also invoked section 433(f) on just and equitable grounds. The court held that after the petitioner ceased to be a creditor, the winding-up petition on these grounds would not lie. The court noted that a petition on just and equitable grounds would not be entertained when an adequate alternative remedy was available. The court concluded that the petitioner had not made out a case for winding up on just and equitable grounds.
  
  Conclusion:
  The court dismissed the winding-up petition, stating that the petitioner had no enforceable claim within the period of limitation and that the debt claimed was a bona fide disputed debt. The petitioner's application for issuing a subpoena to its auditor was also rejected. The court emphasized that a winding-up order could not be made at the instance of a person who was not a creditor at the time the order was to be made. There was no order as to costs.

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• 1995 (11) TMI 322
  
  ... ...
  ... ... ..... mpanies, the receipt of the actual certified court documents and the RBI approvals for the allotment of shares to NRIs Since the idea of the merger is to amalgamate GAL s technical expertise with GESCO s sound financial strengths we are still in the process of accessing the prospective bids and will accordingly structure investments for the services under GAL, said Mr. Nawre. While he did not deny the earlier investment proposal of around Rs. 150 crores in offshore services, he said that it was too early to quote an investment figure specifically for the activities under GAL. The merger enables the Great Eastern Shipping Company Ltd. to refurbish its offshore activities from the supply of offshore vessels and drilling equipment to advanced technicalities of marine construction. However, GESCO will not lose sight of the core shipping activities , said Mr. Nawre. For this the company has already committed around 300 million for the acquisition of ships in a span of three years.

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• 1995 (11) TMI 321
  

  Enforcement of orders of CLB

  
  
  ... ...
  ... ... ..... asan Projects India Ltd. We are not, however, at this stage going into the issue excepting, however, directing the company to act strictly in accordance with law and the order as passed by the Company Law Board. Mr. Chowdhury, appearing for the company prays for stay of operation of this order. Considering the submissions made on behalf of the parties as noted above we are not inclined to grant an order of stay excepting recording, however, that the time to carry out the order of the Company La.w Board be extended till December 10, 1995. Both Mr. Sarkar and Mr. Gupta, appearing for the respondents, have not used any affidavit in opposition to this stay application and as such the allegations in the petition are not admitted by Mr. Sarkar s client. The matter is treated as on the day s list as adjourned motion and is disposed of accordingly. Let a xeroxed certified copy of this order be made available to the parties with utmost expedition. Ronojit Kumar Mitra J. mdash I agree.

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