|
Advanced Search Options
Case Laws
Showing 61 to 80 of 872 Records
-
2009 (4) TMI 1008
Issues involved: Appeal against order for summoning witnesses u/s 391 of the Code of Criminal Procedure.
The appeal was directed against an order passed by the High Court of Judicature at Allahabad in a capital case. The High Court had ordered the summoning of a witness, Kalicharan, and the officer-in-charge of Pushpanjali Hospital for giving evidence during the appeal hearing. The appellant contended that the High Court failed to provide cogent reasons for recording additional evidence at this stage, especially when Kalicharan had already filed an affidavit favoring the convict. The appellant argued that the impugned order was not sustainable.
The Supreme Court examined Section 391 of the Code of Criminal Procedure, which allows the appellate court to record additional evidence if it deems it necessary, provided that reasons are recorded. The Court emphasized that this power should be exercised cautiously to ensure justice is served and not as a routine procedure. Referring to a previous case, the Court highlighted that the purpose of Section 391 is to serve the ends of justice and not to prejudice either the prosecution or the defense. The Court stressed that the discretion granted must be used judiciously, with reasons being a prerequisite for exercising power under this section.
The Supreme Court found that the High Court did not adhere to the essential principles while issuing the directions for summoning witnesses. The Court noted that the issue of summoning Kalicharan for evidence, especially when he had submitted an affidavit contradicting the prosecution's stance, required thorough consideration. The Court concluded that the impugned order lacked proper application of mind and, therefore, set it aside. Consequently, the appeal was allowed, the impugned order was overturned, and the matter was remanded to the High Court for a fresh assessment of the need for additional evidence.
-
2009 (4) TMI 1007
Issues Involved:
1. Jurisdiction of the Revisionary Authority under Section 154 of the Maharashtra Cooperative Societies Act, 1960 (MCS Act).
2. Applicability of Section 154 of the MCS Act to proceedings filed by societies converted into multi-State cooperative societies.
3. Impact of the conversion of a cooperative society into a multi-State cooperative society on pending proceedings.
4. Interpretation of Section 22 of the Multi-State Cooperative Societies Act, 2002 (Multi-State Act).
5. Applicability of Section 84 of the Multi-State Act to disputes involving multi-State cooperative societies.
6. Relevance of Section 126 of the Multi-State Act to pending legal proceedings.
Detailed Analysis:
1. Jurisdiction of the Revisionary Authority under Section 154 of the MCS Act:
The petitioner, initially registered under the MCS Act, filed recovery proceedings under Section 101 of the MCS Act, which were dismissed by the Assistant Registrar. The petitioner then sought revision under Section 154 of the MCS Act. However, during the pendency of this application, the petitioner converted into a multi-State cooperative society. The Divisional Joint Registrar dismissed the revision application citing lack of jurisdiction, based on the petitioner's new status under the Multi-State Act.
2. Applicability of Section 154 of the MCS Act to Proceedings Filed by Societies Converted into Multi-State Cooperative Societies:
The court examined whether the revisionary authority under the MCS Act retained jurisdiction over applications filed before the conversion of the society into a multi-State cooperative society. It was argued that the right to appeal or revision is vested at the time of initiating the proceedings and is governed by the law in force at that time. The court referenced the Supreme Court's judgment in Garikapati Veeraya v. N. Subbiah Choudhry, which established that the right of appeal is a substantive right vested from the date of the institution of the suit.
3. Impact of the Conversion of a Cooperative Society into a Multi-State Cooperative Society on Pending Proceedings:
The court noted that neither the MCS Act nor the Multi-State Act expressly barred the jurisdiction of the MCS Act authorities over proceedings filed before the conversion of the society. The absence of provisions for transferring pending proceedings to the authorities under the Multi-State Act indicated that the legislature did not intend to affect pending proceedings upon such conversion.
4. Interpretation of Section 22 of the Multi-State Act:
Section 22 of the Multi-State Act outlines the process for converting a cooperative society into a multi-State cooperative society. The court highlighted that the conversion and subsequent registration under the Multi-State Act do not inherently nullify or affect proceedings initiated under the MCS Act before the conversion.
5. Applicability of Section 84 of the Multi-State Act to Disputes Involving Multi-State Cooperative Societies:
Section 84 of the Multi-State Act pertains to the arbitration of disputes involving multi-State cooperative societies. The court determined that this section applies to new disputes arising after the conversion and not to proceedings already instituted under the MCS Act. The court emphasized that there was no legislative intent to annul proceedings under the MCS Act upon the conversion of a society.
6. Relevance of Section 126 of the Multi-State Act to Pending Legal Proceedings:
Section 126 of the Multi-State Act addresses the repeal of the Multi-State Cooperative Societies Act, 1984, and includes saving provisions for pending legal proceedings. The court interpreted that this section does not apply to proceedings under the MCS Act that remain unaffected by the conversion of a society into a multi-State cooperative society. The court rejected the argument that Section 126(6) could be construed to include proceedings pending at the time of conversion.
Conclusion:
The court set aside the impugned order dated 14.8.2008, restored the revision application to file, and directed the Divisional Joint Registrar to decide the application on merits. The court concluded that the authorities under the MCS Act retained jurisdiction over proceedings initiated before the conversion of the petitioner into a multi-State cooperative society, and no legislative provision indicated otherwise.
-
2009 (4) TMI 1006
Issues Involved
1. Validity and genuineness of the Hatapatta lease deed dated 25.1.1933.
2. Jurisdiction and power of the OEA Collector and the Board of Revenue under Sections 5(i) and 8(1) of the Orissa Estate Abolition Act, 1951.
3. Classification and possession status of the disputed land.
4. Allegations of fraud and manipulation of documents.
5. Effect of the High Court's order in OJC 2063 of 1992.
6. Applicability of the Orissa Communal Forest and Private Lands (Prohibitions of Alienation) Act, 1948.
Detailed Analysis
1. Validity and Genuineness of the Hatapatta Lease Deed
The disputed lease of 53.95 acres of land was executed by Hatapatta dated 25.1.1933 by erstwhile intermediaries in favor of Kamala Devi. The respondent claimed to be the successor in interest of Kamala Devi. The Hatapatta is an unregistered document. The OEA Collector set aside the lease deed on 6.1.1971, finding it not genuine and created to defeat the Act's purpose. This order was upheld by the Additional District Magistrate, Puri on 28.5.1974. The High Court remanded the matter for fresh examination, but the genuineness of the lease was never conclusively established.
2. Jurisdiction and Power of the OEA Collector and Board of Revenue
The High Court in OJC 2063 of 1992 held that the OEA Collector had no jurisdiction to decide the actual possession and make recommendations to the Board of Revenue, as the lease was executed before 1.1.1946. The Collector's order was quashed, and proceedings before the Board of Revenue were declared non est. The Supreme Court noted that the OEA Collector's order required confirmation by the Board of Revenue, which was not done, making the lease deed non-final.
3. Classification and Possession Status of the Disputed Land
The land was classified as uncultivable Anabadi Land and described as Jhudi jungle (bushy forest) in the 1930-31 records. The OEA Collector found the lands lying fallow without physical possession by any person. Kamala Devi was not cultivating the land, thus not a 'Raiyat' under the Act. The High Court's order in OJC 2063 of 1992 did not address the genuineness of the lease or actual possession.
4. Allegations of Fraud and Manipulation of Documents
The Power of Attorney holder allegedly tampered with documents to alienate the property fraudulently. The Crime Branch CID's interim report indicated manipulation and prima facie offenses under various sections of IPC. The sale deed was impounded for evasion of stamp duty. The Supreme Court emphasized that fraud vitiates every solemn act and highlighted the need for the State to pursue the matter seriously to punish the erring officials and involved parties.
5. Effect of the High Court's Order in OJC 2063 of 1992
The High Court's order was misinterpreted by the respondent, claiming tenancy rights over the entire disputed land. The Supreme Court clarified that the High Court's order only referred to certain inquiries about possession of 7 acres of land, not the entire 53.95 acres. The High Court's order did not establish Kamala Devi or her successors as tenants under Section 8(1) of the Act.
6. Applicability of the Orissa Communal Forest and Private Lands (Prohibitions of Alienation) Act, 1948
The Act prohibits alienation of communal, forest, and private lands without prior sanction. The disputed land, being classified as forest land, falls under this Act. Any transaction without compliance is void. The Supreme Court directed the High Court to re-consider the matter, taking into account the observations and the applicability of this Act.
Conclusion
The Supreme Court allowed the appeals to the extent of directing the High Court to re-hear the matter, considering the observations about fraud, the necessity of confirmation by the Board of Revenue, and the applicability of the Orissa Communal Forest and Private Lands (Prohibitions of Alienation) Act, 1948. The State was urged to take serious actions against fraudulent activities and involved officials.
-
2009 (4) TMI 1005
Issues Involved:
1. Maintainability of the Company Petition under Sections 397 and 398 of the Companies Act, 1956.
2. Qualification of the petitioners under Section 399 of the Companies Act, 1956.
3. Allegations of oppression and mismanagement.
Summary:
1. Maintainability of the Company Petition:
The applicants (respondent No. 1 company M/s. Desh Cam Technological Resources P. Ltd. and Others) challenged the maintainability of Company Petition No. 118 of 2006 filed by the petitioners (Shri Rajendra Keshwani and Others) u/s 397 and 398 of the Companies Act, 1956, alleging oppression and mismanagement. The applicants argued that the petitioners did not fulfill the requisite criteria u/s 399 to maintain the petition as they were not shareholders of the respondent-company and thus had no locus standi.
2. Qualification of the Petitioners under Section 399:
The applicants contended that the petitioners were not holding any shares at the time of filing the petition, as the shares issued to them were canceled by the respondent-company. They argued that the provisions of Section 399 are mandatory, and the jurisdiction u/s 397 and 398 cannot be invoked by shareholders holding less than 10% of the issued shares or one-tenth of the members in the company. The applicants cited several judgments to support their contention that the petitioners lacked the necessary qualification.
3. Allegations of Oppression and Mismanagement:
The petitioners argued that they had acquired 50% of the share capital of the company as per a shareholders' agreement dated January 30, 2006, and that their shares were illegally annulled by the respondents. They contended that the annulment of shares was a serious act of oppression and that the petition could not be dismissed at the threshold. The petitioners cited the decision in Mohinder Singh v. Hoshiarpur Express Transport Co. Ltd. to support their contention that the petition should be examined on merits.
Judgment:
The Board considered the pleadings, arguments, and case law cited by both parties. It was noted that the qualification u/s 399 is mandatory and must be met at the time of filing the petition. However, the Board found that the issue of qualification in this case was a mixed question of fact and law, requiring a hearing on merits. The Board held that the petitioners' stake in the respondent-company was not unarguable and that the petition could not be dismissed at the threshold. Consequently, the Board dismissed C.A. No. 379 of 2008, declaring C.P. No. 118 of 2006 maintainable under Sections 397 and 398 of the Act, and directed the respondents to argue the company petition on merits. No order as to costs was made.
-
2009 (4) TMI 1004
The Supreme Court dismissed the appeal in the case with citation 2009 (4) TMI 1004. Justices S.H. Kapadia and Aftab Alam were involved in the judgment.
-
2009 (4) TMI 1003
Issues Involved:
1. Misappropriation of Rs. 11 lakhs.
2. Fraudulent transfer of 2,170 shares.
3. Removal from directorship.
Detailed Analysis:
1. Misappropriation of Rs. 11 Lakhs:
The petitioner alleged that the second respondent misappropriated Rs. 11 lakhs from the sale of land. The respondents admitted that the land was purchased and later found to be under acquisition by the BDA. The seller issued a cheque for Rs. 16 lakhs, which bounced, leading to a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881. The seller repaid Rs. 9 lakhs and insisted on re-transfer of the land, which the company legally could not do. A memorandum of understanding was signed, agreeing to return Rs. 4 lakhs without re-transferring the land. The respondents provided evidence that the money was deposited in the company's account. The Bench found no misappropriation and negated the allegation.
2. Fraudulent Transfer of 2,170 Shares:
The petitioner claimed the second respondent transferred 2,170 shares without paying consideration. The respondents produced a share transfer form dated March 12, 2005, signed by the petitioner, and board minutes approving the transfer. The petitioner did not dispute the signature but claimed non-payment. The Bench noted that the dispute over consideration is a matter between the parties and not for this forum to decide. The petitioner's reliance on technicalities regarding uncancelled adhesive stamps was dismissed as the transfer was ratified in the board meeting. The Bench concluded that the petitioner is entitled to receive her share certificates for the remaining 2,180 shares within 30 days.
3. Removal from Directorship:
The petitioner alleged her removal from directorship was an act of oppression. The second respondent issued a notice under Section 284 of the Companies Act, 1956, for an extraordinary general meeting to remove the petitioner as a director. The petitioner did not attend or send a representative to the meeting. The Bench found no documentary evidence from either party proving the removal. The Registrar of Companies confirmed no Form No. 32 was filed for the removal. Thus, the Bench presumed the petitioner continues to be a director.
Conclusion:
The Bench dismissed the allegations of misappropriation and fraudulent share transfer but directed the company to return the share certificates for 2,180 shares to the petitioner. The removal from directorship was not substantiated, and the petitioner remains a director. The petition was disposed of with these directions, and any interim orders were vacated.
-
2009 (4) TMI 1002
Issues Involved:
1. Applications for interim relief and amendment of the plaint.
2. Nature of the transaction: loan with shares as security vs. outright sale of shares.
3. Opposition to the amendment of the plaint.
4. Determination of interim relief.
Summary:
1. Applications for Interim Relief and Amendment of the Plaint:
The plaintiffs sought interim relief and amendment of the plaint. The nine plaintiffs instituted a suit against nine defendants for a permanent injunction. The plaintiffs No. 6 & 7 companies, engaged in film production, had their shares pledged as security against a loan of Rs. 1 crore. The plaintiffs claimed that the defendants failed to release the full loan amount and threatened to sell the shares, leading to the present suit.
2. Nature of the Transaction:
The controversy centered on whether the transaction was a loan with shares as security or an outright sale. The plaintiffs argued it was a loan transaction, supported by disclosure letters to the Bombay Stock Exchange u/s Regulation 13(6) of SEBI (Prohibition of Insider Trading) Regulation 1992 and Regulation 7(3) of SEBI (SAST) Regulation 1997. The defendants denied any loan transaction, claiming the shares were sold at agreed prices due to the plaintiffs' urgent need for funds.
3. Opposition to the Amendment of the Plaint:
The defendants opposed the amendment applications, arguing it would change the nature and character of the suit. The court found the amendments necessary for adjudication and allowed them, noting the discrepancy in the names of the companies (plaintiff No. 6 and No. 7) was due to a clerical error.
4. Determination of Interim Relief:
The court considered whether the transaction was a loan with shares as security or an outright sale. The court noted several factors indicating the transaction might not be a simple sale, such as the off-market nature of the transaction and the significant difference between the alleged sale price and the market price. The court found the plaintiffs' case could not be dismissed summarily and required trial. The court directed the plaintiffs to deposit Rs. 75 lacs with interest at 3% per month in the court and file an undertaking to compensate the defendants for any loss due to the interim order. The interim relief was granted, restraining the defendants from dealing with the shares during the pendency of the suit.
Conclusion:
The applications for amendments were allowed, and the interim relief was granted subject to the plaintiffs depositing the due amount and filing an undertaking. The matter required trial to determine the true nature of the transaction.
-
2009 (4) TMI 1001
Issues involved: Jurisdiction of Bombay High Court in an Arbitration Petition where a previous application was filed before Delhi High Court and subsequently dismissed.
Summary:
Background: The case involves a dispute between a Liberian Shipping Company and a government company regarding a charter party for transporting Rock Phosphate. The arbitration clause in the agreement required each party to appoint an arbitrator, with an umpire to be appointed in case of disagreement.
Issue 1 - Jurisdiction of Delhi High Court: The respondent had initially nominated an arbitrator from Delhi High Court, but the appointment was challenged by the appellant. The Delhi High Court dismissed the respondent's petition as infructuous after the nominated arbitrator passed away.
Issue 2 - Appointment of Umpire: The arbitrators appointed an umpire, but the respondent raised objections to the appointment. The umpire suggested approaching the court for further orders.
Issue 3 - Jurisdiction of Bombay High Court: The appellant approached the Bombay High Court for the appointment of the umpire and extension of time for making the award. However, the High Court dismissed the petition citing lack of jurisdiction due to the previous application before the Delhi High Court.
Court's Analysis: The Supreme Court analyzed the provisions of the Arbitration Act, emphasizing that the objective of Section 31 is to vest exclusive jurisdiction in a single court for arbitration matters. The Court clarified that applications under Sections 33 and 34, challenging the validity of the arbitration agreement, fall within the purview of Section 31(4).
Precedents: The Court referred to previous judgments to support its interpretation, highlighting that the court where the arbitration proceedings were initiated retains jurisdiction unless explicitly transferred. The Court differentiated cases where control over proceedings was retained by a specific court.
Decision: The Supreme Court allowed the appeal, setting aside the High Court's order and restoring the application for extension of time for making the award to the Bombay High Court. The High Court was directed to consider the application on its merits within six months. No costs were awarded in the case.
-
2009 (4) TMI 1000
Issues involved: Challenge to the constitutional validity of the Second Proviso to Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 on the ground of violation of Article 14 of the Constitution of India.
Summary:
1. The petitioner challenged the Second Proviso to Section 18 of the Securitisation Act, arguing that requiring a pre-deposit for entertaining an appeal makes the remedy illusory and oppressive. The petitioner contended that such a stipulation is onerous and unreasonable, citing a previous judgment by the Apex Court. The respondent, representing the Union of India, argued that the right of appeal is not inherent but a statutory creation, and conditions can be imposed for its exercise. The respondent highlighted that similar provisions in other enactments have been upheld by the courts.
2. The Court examined the arguments presented by both sides and found that the Second Proviso to Section 18(1) of the Securitisation Act does not create discrimination or violate the principle of equality under Article 14 of the Constitution. The Court emphasized that the right of appeal is a statutory creation, and conditions can be imposed to regulate its exercise and prevent abuse. Referring to the provisions of the Act, the Court noted that the Appellate Tribunal has the discretion to reduce the required deposit to not less than 25% of the debt claimed.
3. The Court further clarified that there is no provision in the statute allowing the secured creditor to appropriate the amount deposited by the borrower for filing an appeal. In case of appeal dismissal, the deposited amount will be refunded to the appellant, ensuring no prejudice. The Court upheld the validity of the Second Proviso to Section 18(1) of the Securitisation Act, citing a previous decision by the Delhi High Court that also supported the provision. Ultimately, the Court dismissed the petitions, finding no merit in the petitioner's contentions regarding discrimination or violation of Article 14.
-
2009 (4) TMI 999
Conspiracy in defrauding the bank - falsification of accounts and forgery of records - Commission of offences u/s 120-B/ 420/467/468 and 471 of the IPC - officers of the Bank had also been prosecuted u/s 13(2) r/w Section 13(1)(d) of the Prevention and Corruption Act, 1988 - Application of the provisions of Section 320 of the Code - Debt recovery Tribunal, appellant and the Bank had entered into a settlement for recovery of loan - C.B.I. had returned the title deeds in respect of the property which were kept as security for obtaining the loan from the bank - Appellant filed an application u/s 239 of the Code for discharge - Before HC, it was argued that further continuation of the criminal proceeding, despite repayment of the amount of loan by the appellant, would amount to an abuse of the process of Court and the same should, therefore, be quashed - CBI contended that the criminal case against the appellant was started not only for obtaining loan but also on the ground of criminal conspiracy with the bank officials - HC dismissed the revision application by the appellant.
HELD THAT:- It is now a well settled principle of law that in a given case, a civil proceeding and a criminal proceeding can proceed simultaneously. Bank is entitled to recover the amount of loan given to the debtor. If in connection with obtaining the said loan, criminal offences have been committed by the persons accused thereof including the officers of the bank, criminal proceedings would also indisputably be maintainable. When a settlement is arrived at by and between the creditor and the debtor, the offence committed as such does not come to an end.
The judgment in the civil proceedings will be admissibile in evidence only for a limited purpose. It is not a case where the parties have entered into a compromise in relation to the criminal charges. In fact, the offence alleged against the accused being an offence against the society and the allegations contained in the FIR having been investigated by the CBI, the bank could not have entered into any settlement at all. The CBI has not filed any application for withdrawal of the case. Not only a charge sheet has been filed, charges have also been framed. At the stage of framing charge, the appellant filed an application for discharge.
One of the main accused is the husband of the appellant. The complicity of the accused persons was, thus, required to be taken into consideration for the purpose of determining the application for discharge upon taking a realistic view of the matter. While considering an application for discharge filed in terms of Section 239 of the Code, it was for the learned Judge to go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made out or not as a strong suspicion in regard thereto shall subserve the requirements of law.
The jurisdiction of the Court under Article 142 of the Constitution of India is not in dispute. Exercise of such power would, however, depend on the facts and circumstance of each case. The High Court, in exercise of its jurisdiction u/s 482 of the Code of Criminal procedure, and this Court, in terms of Article 142 of the Constitution of India, would not direct quashing of a case involving crime against the society particularly when both the learned Special Judge as also the High Court have found that a prima facie case has been made out against the appellant herein for framing charge.
Therefore, we find no merit in the appeal. It is dismissed accordingly.
-
2009 (4) TMI 998
Issues Involved:
1. Interpretation of Section 25-O of the Industrial Disputes Act, 1947.
2. Status of the Government's order under Section 25-O(2) pending adjudication.
3. Scope of the phrase "refer the matter" in Section 25-O(5).
4. Jurisdiction of the Industrial Tribunal under Section 25-O(5).
Issue-Wise Detailed Analysis:
1. Interpretation of Section 25-O of the Industrial Disputes Act, 1947:
The judgment thoroughly examines the provisions of Section 25-O, emphasizing that it is a self-contained code. It outlines the procedure for an employer seeking to close an industrial establishment, including the requirement to apply for prior permission from the appropriate Government, the conduct of an inquiry, and the necessity to provide a reasonable opportunity of being heard to all parties involved. The section mandates that the Government's order, whether granting or refusing permission, is final and binding for one year, subject to review or reference to the Industrial Tribunal.
2. Status of the Government's Order under Section 25-O(2) Pending Adjudication:
The court held that an order passed by the appropriate Government under Section 25-O(2) does not cease to exist or become ineffective pending adjudication by the Industrial Tribunal. The order remains in force unless specifically stayed or altered by a competent forum. The doctrine of eclipse or abeyance does not apply automatically upon invoking the review or reference provisions under Section 25-O(5).
3. Scope of the Phrase "Refer the Matter" in Section 25-O(5):
The phrase "refer the matter" encompasses the application for closure, the proceedings conducted by the Government, and the order passed under Section 25-O(2). It does not empower the Government to refer the legality or validity of its order to the Tribunal. The Tribunal must independently assess the application for closure, considering the entire record and the statutory parameters outlined in Section 25-O(2).
4. Jurisdiction of the Industrial Tribunal under Section 25-O(5):
The Industrial Tribunal does not act as an appellate body over the Government's order. Instead, it conducts a de novo inquiry, allowing parties to present their claims and evidence. The Tribunal must adjudicate the matter afresh, ensuring compliance with the principles of natural justice and the statutory requirements. The Tribunal's award must be based on its independent assessment of the application for closure.
Conclusion:
The judgment clarifies that the Government's order under Section 25-O(2) remains effective pending adjudication by the Industrial Tribunal. The Tribunal's jurisdiction is to conduct a fresh inquiry into the application for closure, not to review the legality of the Government's order. The phrase "refer the matter" includes the entire proceedings before the Government, and the Tribunal must independently determine the merits of the closure application. The court's decision aims to balance the interests of employers and workmen while ensuring adherence to statutory procedures and principles of natural justice.
-
2009 (4) TMI 997
Settlement of disputes by arbitration - Application u/s 20 r/w section 8 for filing the arbitration agreement into court and seeking appointment of an arbitrator - legal misconduct on the part of the arbitrator in making the award - error apparent on the face of the award - pendente lite interest - The contractor's stand was that in the absence of an extension of time for completion by mutual consent before the stipulated date for completion, it was not liable to continue the work on the tendered rates.
HELD THAT- It was well settled that under the Arbitration Act, 1940, an award was not open to challenge on the ground that the arbitrator has reached a wrong conclusion or failed to appreciate facts, as under the law, the arbitrator is made the final arbiter of the dispute between the parties.
When there is no allegation of moral misconduct against the arbitrator with reference to the award, and where the arbitration has not been superseded, there were only two grounds of attack. First was that there was legal misconduct on the part of the arbitrator in making the award. Second was that there was an error apparent on the face of the award.
Keeping the said principles in mind let us examine the various claims.
Loss of profitability due to late release of mobilization advance - HELD THAT:- The Arbitrator committed a legal misconduct by ignoring the terms of contract, that is the agreement dated 11.1.1989,which specifically provided that in addition to the CTR, the work order and amendment to work order dated 8.11.1988 would also form part of the contract. The Arbitrator also overlooked the fact that additional provision regarding mobilization advance was introduced in the agreement itself. Therefore the mobilisation advance was governed by the terms in the CTR, the work order, the amendment to the work order dated 8.11.1988 and agreement dated 11.1.1989 read together. If so read, it was clear that there was no breach on the part of the employer and the contractor was itself responsible for the delay. If so, the question of compensating the contractor on that score does not arise.
There is yet another aspect. The contractor claimed compensation on the basis that he could not do work of the value in view of the delay and he was entitled to 15% as compensation. But the arbitrator made an award in respect of the claim on the ground that there was delay in releasing the mobilization advance and during that period of delay, one third of the contract work could have been done and the value of the work that could have been done and 10% thereof was the loss of profit.
Firstly, there was no such plea. Secondly, we have already held that the delay relating to mobilisation advance, was not on the part of the employer. Thirdly, even if there was delay, it was nobody's case that no work was done or that the contractor had suffered loss for non-execution of the work during the contract period. Therefore we are of the view that the award of compensation towards Loss of profitability due to late release of mobilization advance is liable to be set aside.
Idle charges for machinery, staff etc. - HELD THAT:- The amounts that allegedly became due to the contractor under the award were mostly towards damages and escalation in prices validity of which were under challenge and there was no provision in the contract for payment of interest thereon. As noticed above at best the arbitrator could have directed return of the documents of title to the contractor and could not have directed payment of damages at the rate of ₹ 12072/- per day - We therefore hold that viewed from any angle, awarding ₹ 12,072/- per day as damages, from the date of award under Claim 37A cannot be sustained and the same is liable to be set aside.
Interest (pre-reference, pendent lite and future) Contractor claimed pre-reference interest at 18% per annum on all its claims from the date of claim to date of arbitrator entering upon the reference (18.6.1990 to 15.12.1991), as also pendente lite interest from 16.12.1991 to 21.9.1994 and future interest from the date of award till date of payment or decree whichever was earlier - HELD THAT:- This Court has held that in the absence of an express bar, the arbitrator has the jurisdiction and authority to award interest for all the three periods - pre reference, pendente lite and future (vide decisions of Constitution Bench in Secretary, Irrigation Department, Government of Orissa vs. G. C. Roy [1991 (12) TMI 268 - SUPREME COURT], Executive Engineer, Dhenkanal Minor Irrigation Division vs. N. C. Budharaj [2001 (1) TMI 916 - SUPREME COURT] and the subsequent decision in Bhagawati Oxygen vs. Hindustan Copper Ltd. [2005 (4) TMI 611 - SUPREME COURT]. In this case as there was no express bar in the contract in regard to interest, the Arbitrator could award interest.
Rate of interest - We are of the view that the award of interest at 18% per annum, in an award governed by the old Act (Arbitration Act, 1940), was an error apparent on the face of the award. In regard to award of interest governed by the Interest Act, 1978, the rate of interest could not exceed the current rate of interest which means the highest of the maximum rates at which interest may be paid on different classes of deposits by different classes of scheduled banks in accordance with the directions given or issued to banking companies generally by the Reserve Bank of India under the Banking Regulation Act.
Therefore, we are of the view that pre-reference interest should be only at the rate of 9% per annum. It is appropriate to award the same rate of interest even by way of pendente lite interest and future interest upto date of payment.
Payment for work done by the contractor - release/refund of amounts withheld or excess deductions - escalation in prices - compensation for slow progress due to reduction of width of trench - HELD THAT:- The arbitrator has awarded certain amounts against these claims by examining the material placed before him and the terms of contract. He has also assigned reasons for awarding the amount against these claims. Courts can not sit in judgment over the award of the arbitrator, nor re-appreciate the evidence - The awards on these claims do not suffer from any infirmity which can be the basis for interference either u/s 30 or u/s 16 of the Arbitration Act, 1940. Neither want of jurisdiction, nor legal misconduct, nor any inconsistency nor error apparent on the face of the award are made out in regard to awards made in regard to these claims. The awards in regard to these claims are therefore upheld.
Appeal allowed in part.
-
2009 (4) TMI 996
Issues Involved:
1. Fire Safety in Schools
2. Compliance with National Building Code
3. State and Local Government Responsibilities
4. Training and Emergency Preparedness
5. Legal and Constitutional Obligations
Issue-wise Detailed Analysis:
1. Fire Safety in Schools:
The judgment addresses the tragic fire incident at Lord Krishna Middle School, emphasizing the need for safer school conditions to protect the rights of life and education guaranteed under Articles 21 and 21-A. The petitioner highlighted the poor safety conditions in the school, including inadequate ventilation, thatched roofs, and insufficient emergency exits, which led to the high casualty rate. The Court recognized the necessity of implementing fire safety measures such as fire extinguishers, first aid kits, water tanks, and regular fire drills to prevent such tragedies in the future.
2. Compliance with National Building Code:
The Court stressed the importance of adhering to the National Building Code of India, 2005, particularly Part IV - Fire & Life Safety, and the Code of Practice of Fire Safety in Educational Institutions (IS 14435:1997). The judgment mandates that all schools, both government and private, must comply with these standards. The Court directed that before granting recognition or affiliation, State Governments and Union Territories must ensure that school buildings are constructed according to these safety norms.
3. State and Local Government Responsibilities:
The judgment highlighted the role of State and local governments in enforcing safety standards. It was found that many schools did not meet even the basic safety standards, and the existing laws were not adequately enforced. The Court directed that the Education Secretaries of each State and Union Territory must file an affidavit of compliance, ensuring that fire extinguishing equipment is installed in all schools within six months. The judgment also called for regular inspections and the issuance of safety certificates by certified engineers.
4. Training and Emergency Preparedness:
The Court emphasized the need for training school staff and students in fire safety and emergency procedures. It directed that fire fighting training should be provided to all teachers and students from X to XII standards. Schools must form a Fire Task Force and conduct regular mock drills. Emergency response plans and training in first aid were also mandated to ensure that schools are prepared to handle emergencies effectively.
5. Legal and Constitutional Obligations:
The judgment underscored the constitutional mandate under Article 21A for free and compulsory education in a safe environment. It referenced historical and legal precedents, including the Hunter Commission, the Government of India Act, 1935, and the Kothari Commission, which advocated for universal education. The Court reiterated that the right to education includes the provision of safe schools and that the State has a duty to ensure this. The judgment also highlighted the reciprocal obligation of parents under Article 51A(k) to provide educational opportunities for their children.
Conclusion:
The Supreme Court directed that all schools must comply with the National Building Code and other safety standards, install fire safety equipment, and ensure regular inspections and training. The Court mandated that the Education Secretaries of each State and Union Territory file compliance affidavits and scheduled a follow-up hearing to ensure implementation. The judgment emphasized the fundamental right of children to receive education in a safe environment, free from fear of security and safety.
-
2009 (4) TMI 995
Issues involved: Appeal against rejection of petition u/s 154 by AO, whether AO should have entertained rectification petition, legal issues regarding claim, mistake apparent from record, jurisdiction under s. 154.
Summary:
The appeal was filed by the assessee against the order of the CIT(A)-XV, Mumbai rejecting the petition u/s 154 by the AO. The assessee had initially declared total income for the assessment year 2005-06, including long-term capital gain, which was later sought to be rectified by excluding it from taxation. The AO rejected the rectification application, which was upheld by the CIT(A) on the grounds that no mistake was caused by the AO in the intimation given u/s 154 and that no revised return was filed by the assessee. The assessee contended that the mistake was inadvertent and all details were available with the AO, who should have entertained the petition u/s 154. Legal issues were raised citing relevant case laws to support the claim.
Upon considering the arguments, the Appellate Tribunal found that there was a mistake on the part of the assessee in offering long-term capital gain that was exempt from tax. The Tribunal held that the AO should have excluded the non-taxable amount from the computation of income, as it was the duty of the AO to correct such mistakes and guide the assessee. Citing precedents, the Tribunal emphasized that legitimate taxes should be determined as collectible and relief cannot be denied merely due to omission by the assessee. Therefore, the Tribunal directed the AO to consider the petition, verify the claim, and exclude the non-taxable long-term capital gain. The Tribunal set aside the orders of the AO and CIT(A) and allowed the grounds of the assessee, with a direction to give the assessee an opportunity before passing the order u/s 154.
In conclusion, the appeal was allowed in favor of the assessee, emphasizing the importance of rectifying mistakes apparent from the record and ensuring correct taxation as per the provisions of the Act.
-
2009 (4) TMI 994
Issues Involved:
1. Validity of the compromise decree obtained by Ramdas in Civil Suit No.206/1980.
2. Whether the suit property was partitioned and if Ramdas got title to the suit property.
3. Status of Tarabai's nomination u/s 30 of the Maharashtra Co-operative Societies Act.
4. Rights of Tarabai's children in the suit property.
5. Interpretation of Section 30 of the Maharashtra Co-operative Societies Act regarding succession.
Summary:
Issue 1: Validity of the Compromise Decree
The Trial Court found that the decree obtained by Ramdas in Civil Suit No.206/1980 was collusive and fraudulent, thus not binding on the plaintiff. This finding was upheld by the First Appellate Court, which concluded that the compromise decree does not bind the plaintiff.
Issue 2: Partition and Title to the Suit Property
The Trial Court determined that the suit property was not partitioned and that Ramdas did not acquire title to the suit property under the alleged partition. The First Appellate Court also held that there was no partition effected among the family members and that Ramdas did not get the suit plot as his share.
Issue 3: Status of Tarabai's Nomination u/s 30 of the Maharashtra Co-operative Societies Act
The Trial Court held that Tarabai became the absolute owner of the suit property due to her nomination by her deceased husband Shivram u/s 30 of the Maharashtra Co-operative Societies Act r/w Rule-25 of the Rules framed thereunder. However, the High Court, relying on precedents, concluded that a valid nomination does not confer ownership but only authorizes the nominee to deal with the society. The nominee holds the property in trust for the real owners.
Issue 4: Rights of Tarabai's Children
The Trial Court concluded that Tarabai's children had no right, title, or interest in the suit property due to her nomination. The High Court, however, clarified that Tarabai, along with her four children, were Class-I heirs of Shivram, and thus, Tarabai did not have the authority to alienate the property to the exclusion of the other legal heirs.
Issue 5: Interpretation of Section 30 of the Maharashtra Co-operative Societies Act
The High Court addressed whether Section 30 provides a special rule of succession altering the personal law. It was held that Section 30 does not create a new rule of succession but only specifies who the society should deal with upon a member's death. The nominee does not become the owner but holds the property for the legal heirs.
Conclusion:
The High Court allowed the Second Appeal, setting aside the judgments and decrees of the Trial Court and the First Appellate Court. It was concluded that Tarabai did not become the absolute owner of the suit property by virtue of her nomination, and Section 30 does not alter the rule of succession laid down by personal law. The plaintiff's suit was dismissed with no orders as to costs.
-
2009 (4) TMI 993
The Supreme Court dismissed the appeal in the case with citation 2009 (4) TMI 993. Judges were Mr. S.H. Kapadia and Mr. Aftab Alam.
-
2009 (4) TMI 992
Law relating to the admissibility of a judgment in a criminal proceedings vis-‘-vis the civil proceedings and vice-versa governed by the provisions of the Indian Evidence Act - Whether the admission of guilt in a criminal case would be admissible in evidence in civil case - Period of limitation for institution of a suit for recovery of `pledged ornaments' - Appellant is a money lender - A criminal case for charging excess interest was instituted against him - he pleaded guilty by reason whereof a fine of ₹ 150/- was imposed on him - Respondent served a notice - As neither the said noticed was replied to nor the jewellery was returned, he filed the suit.
HC opined that the suit had been filed within the prescribed period of limitation having been brought within a period of three years from the date of refusal of the demand to return the pledged ornaments. the admission of guilt in a criminal case would be admissible in evidence being relevant to the fact in issue.
HELD THAT:- A civil proceeding as also a criminal proceeding may go on simultaneously. No statute puts an embargo in relation thereto. A decision in a criminal case is not binding on a civil court.
In M.S. Sheriff & Anr. v. State of Madras & Ors.[1954 (3) TMI 76 - SUPREME COURT], a Constitution Bench of this Court was seized with a question as to whether a civil suit or a criminal case should be stayed in the event both are pending. It was opined that the criminal matter should be given precedence.
In regard to the possibility of conflict in decisions, it was held that the law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. It was held that the only relevant consideration was the likelihood of embarrassment.
If a primacy is given to a criminal proceeding, indisputably, the civil suit must be determined on its own keeping in view the evidence which has been brought on record before it and not in terms of the evidence brought in the criminal proceeding.
It is now almost well-settled that, save and except for Section 43 of the Indian Evidence Act which refers to Sections 40, 41, and 42 thereof, a judgment of a criminal court shall not be admissible in a civil suit.
We, therefore, are of the opinion that although the judgment in a criminal case was not relevant in evidence for the purpose of proving his civil liability, his admission in the civil suit was admissible. The question as to whether the explanation offered by him should be accepted or not is a matter which would fall within the realm of appreciation of evidence. The Trial Court had accepted the same. The first appellate court refused to consider the effect thereof in its proper perspective. The appellate court proceeded on the basis that as the judgment of the criminal court was not admissible in evidence, the suit could not have been decreed on the said basis. For the said purpose, the admission made by the appellant in his deposition as also the effect of charge had not been taken into consideration.
We, therefore, are of the opinion that the High Court cannot be said to have committed any error in interfering with the judgment of the first appellate court.
Applicability of the period of limitation - Article 70 of the Limitation Act would be applicable - period of limitation, thus, begins to run from the date of refusal after demand. Appellant did not respond to the notice issued by the respondent asking him to return the pledged jewellery. The date of receipt of such a notice is 14.05.1998. The suit having been filed on 26.06.1998, thus, must be held to have been filed within the prescribed period of limitation.
Having regard to the fact that the averments contained in the plaint were not traversed, the same would be deemed to have been admitted by him in terms of Order VIII, Rule 5 of the Code of Civil Procedure. Gautam Sarup v. Leela Jetly [2008 (3) TMI 681 - SUPREME COURT], this Court held:
"14. An admission made in a pleading is not to be treated in the same manner as an admission in a document. An admission made by a party to the lis is admissible against him proprio vigore."
Therefore, there is no merit in this appeal, which is dismissed accordingly.
-
2009 (4) TMI 991
Issues Involved:
1. Winding up of the respondent company u/s 433 of the Companies Act, 1956.
2. Retention and release of security deposit as per contract clauses.
3. Alleged defects and deficiencies in the work executed by the petitioner.
4. Maintainability of the winding up petition in light of a pending recovery suit.
5. Respondent's ability to pay the debt.
Summary:
1. Winding up of the respondent company u/s 433 of the Companies Act, 1956:
The petitioner sought the winding up of the respondent company u/s 433 of the Companies Act, 1956, on the grounds that the respondent was unable to pay its admitted debts.
2. Retention and release of security deposit as per contract clauses:
The petitioner was awarded two contracts by the respondent, with specific clauses (Clauses 7 and 8) governing the retention and release of security deposits. The petitioner completed the work and claimed that the retention amount of Rs. 13,63,435/- became due after the defect liability period expired. Despite part payments, Rs. 10,40,326/- remained unpaid.
3. Alleged defects and deficiencies in the work executed by the petitioner:
The respondent contended that the petitioner delayed the work and pointed out defects via letters dated 25th June 2007 and 6th August 2007. However, the court found these allegations vague and unsupported by any contemporaneous complaints or communications within the contract period. The court noted that no deficiencies were pointed out during the defect liability period, and the respondent's subsequent payments contradicted their claims of defective work.
4. Maintainability of the winding up petition in light of a pending recovery suit:
The respondent argued that the pending recovery suit filed by the petitioner precluded the winding up petition. The court held that the remedies for recovery of money and winding up of a company are distinct and independent. The filing of a recovery suit does not bar the creditor from filing a winding up petition.
5. Respondent's ability to pay the debt:
The court found no substantial defence from the respondent regarding their ability to pay the debt. The respondent admitted to receiving the statutory notice and making part payments but failed to provide any credible explanation for withholding the balance amount. The court concluded that the dispute raised by the respondent was bogus and sham.
Conclusion:
The petition was admitted, and the court directed the respondent to pay the due amount with interest at 8% per annum within one month. If the respondent failed to comply, the petitioner would be entitled to publish the citation and apply for the appointment of a provisional liquidator. The case was listed for further directions on 20th May 2009. Petition allowed.
-
2009 (4) TMI 990
Issues involved: Interpretation of Exemption notification No. 4/2006 for concessional rate of duties on cement supplies in 50Kgs bags to individual customers, and the filing of multiple appeals against the same order.
Interpretation of Exemption Notification No. 4/2006:
The dispute in this case pertains to a cement manufacturer supplying cement in 50Kgs bags to individual customers under Exemption notification No. 4/2006. The notification prescribes different concessional rates of duties under Serial No. 1A, 1B, and 1C. The Commissioner had allowed the concessional rate for certain categories of institutional customers based on certificates provided by the manufacturer. However, upon examining the conditions of the notification, the findings of the Commissioner, and the submissions made by the Advocate, it was determined that the applicant may not be eligible for the concessional rate of duty for supplies made to individual customers where the Retail Selling Price (RSP) is required to be mentioned on the bags. Consequently, the applicant was directed to deposit the disputed duty amounting to Rs. 7,72,521 within 4 weeks and report compliance by a specified date.
Filing of Multiple Appeals:
The Advocate representing the applicant informed the Tribunal that another appeal had been filed against the same order, contending that the order covered issues arising from two show cause notices despite there being only one order issued. In response, the Registry was directed to return the second appeal to the party for necessary action.
Disposition of Stay Petition:
The Tribunal disposed of the stay petition and ordered that the current appeal would be tagged to Appeal Nos. E/2316-2317/08 for further proceedings.
-
2009 (4) TMI 989
The High Court of Bombay admitted the case for consideration of two substantial questions of law:
1. Whether gutka falls under the Eleventh Schedule as a tobacco preparation, affecting the deduction claimed by the Appellant under sections 80-1 and 80-1A of the Act?
2. Whether the Tribunal's conclusion, based on new arguments not raised earlier, violates the principles of natural justice?
........
|
9911796707
