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Showing 1 to 20 of 754 Records
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2020 (5) TMI 755
Assessment of Insurance business - Profit on sale of investment - Profits realized from investments are real and hypothetical - as per HC [2019 (7) TMI 387 - MADRAS HIGH COURT] Prior to 1st April, 2011, there was no provision which required the Revenue to disallow the deduction of loss on sale of investments. In the respondent/assessee's case, identical view was taken by the CIT (Appeals), Large Taxpayer Unit, Chennai, and the order was confirmed by the Tribunal. The finding in favour of the assessee was on the ground that prior to 1st April, 2011, there was no provision which required the Revenue to disallow the deduction of loss on sale of investments.
HELD THAT:- Delay condoned. Leave granted. Tag the matter along with Civil Appeal .
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2020 (5) TMI 754
Condonation of delay in filing appeal - whether period of 730 days including 693 days spent by the Appellant- Informant in seeking remedy before the Hon’ble High Court qua the order impugned dated 28th November, 2017 passed by the Competition Commission of India u/s 26(2) of the Competition Act, 2002 can be condoned?
HELD THAT:- While the Appellant seeks condonation of delay on grounds which are not severable from the merits of the case, it is apt to notice that no reason much less a cogent lawful reason/ excuse has been assigned for a delay of around two years in preferring the statutory appeal under Section 53B of the Act. The Appellant appearing in person filed written submission in support of his oral arguments reiterating the same grounds as were urged in Writ Petitions and Writ Appeals before the Hon’ble High Court. It is canvassed that the Appellant spent 693 days in proceedings before the Hon’ble High Court since there was denial of natural justice by Commission. He continued to lay stress on the proposition that Writ Jurisdiction can be invoked even when alternate remedy is available if there was denial of natural justice and the impugned order was obtained by fraud.
It is indisputable that competition concerns raised with regard to all anti- competitive activities in whatever form or manifestation are effectively dealt with under the Act which provides an efficacious remedy in the form of statutory appeal under Section 53B of the Act. It being the admitted position that efficacious legal remedy in the form of appeal is available within the adjudicatory mechanism under the Act, an unscrupulous litigant aggrieved of any order, direction and decision of the Commission under the Act cannot be allowed to choose the remedies under law and invoke writ jurisdiction of the Hon’ble High Court under the pretext of the impugned order being non est and emanating out of an inquiry, investigation or trial held in breach of the principles of natural justice. Such course, if permitted, would provide leverage to unscrupulous litigants to go for forum shopping. Such practice has to be deprecated.
Having regard to the legislative intent behind the enactment of Act, the provisions of Limitation Act, 1963 stand excluded by necessary implication. Thus, it is not open to Appellant to take recourse to Section 5 of the Limitation Act, 1963 providing for extension of period of limitation prescribed under the Limitation Act, 1963 which has no application to appeal in hand.
Conclusion - The appellant's appeal was barred by limitation due to the lack of sufficient cause for the delay in filing.
Appeal dismissed.
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2020 (5) TMI 753
Anti-competitve action - abuse of dominant position - contravention of the provisions of Sections 3 and 4 of the Competition Act, 2002 - HELD THAT:- The opinion of the Commission in regard to OP-1 holding relatively and comparably an inferior position as compared to giants like Sahara, Parsvanath, Omaxe with bigger projects and better resources knocks the bottom of an argument advanced on behalf of the Informants in regard to the OP-1 holding the dominant position in the relevant geographic market i.e. Lucknow qua the development and sale of residential flats which is the relevant product market in the case. The Informants may have grievances in regard to the deficiency in services in as much as the quality of construction of the project may have been compromised by the Developer i.e. OP-1 and that the area earmarked for providing common facilities was partially utilised for raising more residential towers thereby shrinking the space reserved for common facilities at the cost of comfort of the allottees besides extracting more money in the form of additional charges for maintenance and parking space beyond the stipulations in the Agreement but that would be a breach of the contractual obligation entitling the allottees to claim compensation.
On consideration of the material on record and the reasons assigned by the Commission, there are no doubt that OPs 1 to 4 were not holding dominant position in the relevant market which, being residential apartment project is different from residential plot and commercial building projects, thereby justifying the conclusion that the relevant product market and the relevant geographical market have been flawlessly identified. Once OPs 1 to 4 were not dominant players in the relevant market, question of abuse of dominant position does not at all arise. The Competition concerns raised by the Informants are unfounded though for alleged breach of contractual obligation they may have a cause before the Competent Forum.
There being no legal infirmity in the impugned order, the appeal is dismissed.
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2020 (5) TMI 752
Existence of a Hindu Undivided Family (HUF) - partition based on title documents - Whether the Courts today can permit litigants coming before it to take a stand before the Court different from that they have been taking for long period of time before taxation and other authorities? - HELD THAT:- The Courts, if permit the litigants to, for the purposes of litigation take a different stand from what they have been taking while complying with various laws, would be aiding and abetting such litigants to violate the laws, particularly fiscal laws and would be permitting the litigants to change their face from time to time to their advantage and to the detriment of public exchequer and the public at large. The same cannot be permitted.
The documents executed by the wife and son of J.R. Jain who have now raised the bogey of HUF, belie that the property was ever owned by or dealt with as the property of HUF. Again, no litigant can be permitted to, when faced with litigation, turn turtle and take a stand diametrically opposite with the past dealing with the subject matter of the dispute - It cannot also be forgotten that the initiation of this suit for partition was by none other than the daughter-in-law of J.R. Jain namely Niti, who, it is not as if is estranged from the remaining family of J.R. Jain or from her husband; she and her husband are themselves residing in the subject property.
J.R. Jain representing all the owners of the property created leases of different portions of the property in favour of companies of which also the family members were shareholders, Directors and for the residence of Ramesh and Raj Kumar as tenants therein. J.R. Jain, while so letting out the property, did not create lease on behalf of any HUF and the rentals were not credited to any HUF. The explanation of the same being for taxation purposes cannot be accepted. As aforesaid, what is good for revenue purposes is good for Court purposes also and different stands diametrically contrary to each other cannot be permitted to be taken.
The pleas in the written statements of Ram Kali, Ramesh and Raj Kumar who alone are contesting the suit are not found to be bona fide; the said pleas are vague and without any particulars; they are inconsistent with the past admitted conduct of the family of J.R. Jain to which Ram Kali, Ramesh and Raj Kumar belong and seek to, by way of clever drafting, create an illusion of a defence to this suit for partition, when no such defence exists. Resultantly, as per the law of framing of issues, the same do not constitute raising any material proposition of law or fact - Once the pleas aforesaid are not found to be raising any material proposition of law and fact inviting framing of any issue thereon, the shares are not in dispute and there is no impediment to a preliminary decree for partition being passed.
List before the Roster Bench on 6th August, 2020.
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2020 (5) TMI 751
Suppressed production - manufacturing processes leads to loss of material which depending upon the product is in the range of 3% to 10% - Correctness in the findings of the Tribunal that the books of accounts of the appellant are unreliable and the finding that appellant has claimed a higher processing loss -
As decided by HC [2019 (3) TMI 588 - BOMBAY HIGH COURT] AO had carried out minute examination of the material on record. He had held and established that the sale of finished product was below what the assessee ought to have produced and sold even ignoring the production loss and loss of caustic soda and soda flakes during the chemical process. The entire issue was thus, purely factual in nature based on the evidence on record. CIT(A) and Tribunal confirmed this view of the AO. When two Revenue Authorities and the Tribunal had concurrently decided the issue based on appreciation of evidence on record, we do not find any question of law arising
HELD THAT:- Upon hearing the counsel the Court made the following Learned counsel for the petitioner prays for and is granted permission to withdraw the petition to enable the petitioner to take benefit of the Government scheme.
Accordingly, the petition is dismissed as withdrawn with the aforesaid liberty.
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2020 (5) TMI 750
Initiation of proccedings in respect of agriculture holding - Applicability of the SARFAESI Act, 2002 to agricultural land - order of Chief Metropolitan Magistrate or District Magistrate - remedy to approach the Debt Recovery Tribunal - HELD THAT:- This Court in the case of Anil Karma and another Vs. State of M.P. and another [2019 (9) TMI 1734 - MADHYA PRADESH HIGH COURT] has held 'It is true that there is a remedy available to the petitioners to approach the Debt Recovery Tribunal but the order passed by the District Magistrate is void abnitio in the light of Section 31(i) of SARFAESI Act, 2002 which categorically provides that the provisions of Act of 2002 are not applicable in respect of any security interest created in agricultural land and therefore, once the Act of 2002 was not applicable in respect of the agricultural land, the order passed by the District Magistrate is a nullity and there appears to be no justification in forcing the petitioners to file an appeal.'
The impugned order dated 30.07.2019 is hereby quashed. However, the respondent No.2 / Bank shall be free to take recourse to other remedies available under the law for realisation of debts.
The writ petition stands allowed.
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2020 (5) TMI 749
Seeking for time to deposit the balance auction amount - liability of interest - Lockdown due to COVID-19 infection - HELD THAT:- In view of the suo-motto orders passed by the Hon'ble Supreme Court as well as the Hon'ble NCLAT in relation to the period of COVID-19 Lockdown to be excluded, payment of interest will arise only if there is a delay in depositing the same even after the end of Lockdown due to COVID-19 infection.
In the circumstance, the time period granted for depositing the amount if any and in relation to the consideration of Application in relation to the challenge of the auction of the property stands deferred till the lock-down is lifted by the Central Government/State Government respectively.
Application disposed off.
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2020 (5) TMI 748
Extension of time given to the applicant(s)/auction purchasers to deposit the balance amount till 20.3.2020 - HELD THAT:- The time granted for deposit of the balance amount should be extended in view of the disability caused due to lockdown. The time to deposit the remaining amount extended for two months after lifting of the lockdown. The applicant is directed to pay interest at the lending rate for the period starting from 20.03.2020 till the date of deposit.
Application disposed off.
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2020 (5) TMI 747
Jurisdiction of CCI to examine the issues raised relating to the exercise of rights granted under the Patents Act - Direction to Director General (DG) to investigate the activities of the petitioners and Maharashtra Hybrid Seeds Company (Mahyco) - trait fee charged by MMBL and the other terms and conditions imposed by it for using the technology for manufacturing Bt. Cotton Seeds - HELD THAT:- Section 60 of the Competition Act contains a non obstante provision and expressly provides that the provisions of the Competition Act would have effect notwithstanding anything inconsistent contained in any other law for the time being in force. This Court held that although Section 60 of the Competition Act expressly provided that the Competition Act would be given an overriding effect, the same would not whittle down the provisions of the Patents Act. This Court is of the view that Section 62 of the Competition Act which expressly provides that the Competition Act would be in addition to and not in derogation of the provisions of any other law for the time being in force, clearly expresses the legislative intent that the Competition Act is in addition to other laws and not in substitution thereof.
This Court next examined the issue whether there was any irreconcilable conflict between the Competition Act and the Patents Act and whether both the enactments could be construed harmoniously. This Court had noticed that Chapter XVI and Section 140 of the Patents Act contained provisions the subject matter of which may be common with the Competition Act. Section 84 of the Patents Act provides for grant of compulsory licenses in certain cases where reasonable requirement of public in respect of patented inventions has not been satisfied. Section 85 of the Patents Act provides for revocation of patents if after expiry of two years from the date of grant of compulsory license, the patented invention has not been worked in the territory of India and the reasonable requirements of public with respect to the patent have not been satisfied.
As is apparent from the plain language of sub-section (5) of Section 3 that nothing contained in Section 3 of the Competition Act would restrict the right of a person to restrain any infringement of his IPR or to impose reasonable conditions for protecting them. It recognizes that a person has a right to restrain infringement of IPR granted under the specified statutes and any agreement entered for the aforesaid purpose would fall outside rigors of Section 3 of the Competition Act. However, such rights are not unqualified. Only such agreements that are "necessary for protecting any of his rights which have been or may be conferred upon him under" the specified statutes are provided the safe harbor under Sub-section (5) of Section 3 of the Competition Act and only to such extent.
The question whether an agreement is limited to restraining infringement of patents and includes reasonable conditions that may be necessary to protect such rights granted to a patentee, is required to be determined by the CCI. Subsection (5) of section 3 of the Competition Act does not mean that a patentee would be free to include onerous conditions under the guise of protecting its rights.
It is also relevant to note that the role of TRAI as a regulator is materially different from that of a Controller. Telecom services are regulated and controlled and TRAI has a vital role in regulating the industry - The principal function of the Controller under the Patents Act is to examine the application for grant of patents and grant patents if the applicant is entitled to such rights. Although, the Controller also exercises other powers and performs other functions, including issuance of compulsory licenses in given case. But the Controller does not regulate, in a pervasive manner, the exercise of patent rights or the agreements that are entered into by patentees with third parties. The nature of the role performed by a Controller, thus, cannot be equated to that as performed by the TRAI.
This Court finds no reason to interfere with the impugned order. It is also relevant to note that an order passed by the CCI under Section 26(1) of the Competition Act is an administrative order and, therefore, unless it is found that the same is arbitrary, unreasonable and fails the wednesbury test, no interference would be warranted. A review on merits is impermissible at this stage, and therefore, this court is refraining from examining the merits of the dispute.
The petitioners' challenge to the order dated 18.02.2016 is also not maintainable. By the aforesaid order, the CCI had merely issued notice and afforded the petitioners for an opportunity to be heard before considering the application filed by the informants under Section 33 of the Competition Act. This Court finds no reason whatsoever to interfere with the said order. The petition-W.P.(C) 1776/2916 is unmerited and, therefore, dismissed. All pending applications are also disposed of.
Petition dismissed.
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2020 (5) TMI 746
Unfair price fixation mechanism and abuse of dominant position - Contravention of provisions of Section 3 of the Competition Act, 2002 - alleged collusion on the part of drivers through the cab aggregators App who purportedly used algorithm to fix prices which the drivers were bound to accept - Allegation of hub-and-spoke cartel involving drivers and cab aggregators - price discrimination under Section 4(2)(a)(ii) of the Act - HELD THAT:- It is apt to notice the procedure governing inquiry by the Commission in allegations of anti-competitive agreements, including price fixation, cartelisation and abuse of dominant position. Section 19 of the Act provides for inquiry into certain agreements and dominant position of enterprise.
It is true that the concept of locus standi has been diluted to some extent by allowing public interest litigation, class action and actions initiated at the hands of consumer and trade associations. Even the whistle blowers have been clothed with the right to seek redressal of grievances affecting public interest by enacting a proper legal framework. However, the fact remains that when a statute like the Competition Act specifically provides for the mode of taking cognizance of allegations regarding contravention of provisions relating to certain anti-competitive agreement and abuse of dominant position by an enterprise in a particular manner and at the instance of a person apart from other modes viz. suo motu or upon a reference from the competitive government or authority, reference to receipt of any information from any person in section 19(1) (a) of the Act has necessarily to be construed as a reference to a person who has suffered invasion of his legal rights as a consumer or beneficiary of healthy competitive practices - There is nothing on the record to show that he has suffered a legal injury at the hands of Ola and Uber as a consumer or as a member of any consumer or trade association. Not even a solitary events of the Informant of being a victim of unfair price fixation mechanism at the hands of Ola and Uber or having suffered on account of abuse of dominant position of either of the two enterprises have been brought to the notice of this Appellate Tribunal. We are, therefore, constrained to hold that the Informant has no locus standi to maintain an action qua the alleged contravention of Act.
Admittedly, under the business model of Ola, there is no exchange of information amongst the drivers and Ola. The taxi drivers connected with Ola platform have no inter se connectivity and lack the possibility of sharing information with regard to the commuters and the earnings they make out of the rides provided. This excludes the probability of collusion inter se the drivers through the platform of Ola. In so far as Uber is concerned, it provides a technology service to its driver partners and riders through the Uber App and assist them in finding a potential ride and also recommends a fare for the same. However, the driver partners as also the riders are free to accept such ride or choose the App of competing service, including choosing alternative modes of transport.
Any view taken by the Commission without recording reasons would demonstrate lack of application of mind and exercise of arbitrary power which cannot be supported. In the instant case, the Commission has dealt with the allegations clearly identifying the issues and recording its opinion thereon in the light of law and contemporary decision occupying the field. Nothing to the contrary could be demonstrated by the Informant to warrant interference.
There is no substance in the allegations emanating from the Informant - The opinion of the Commission in regard to non-existence of a prima facie case warranting closure of the information cannot be faulted on any ground - there are no legal infirmity in the impugned order - appeal dismissed.
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2020 (5) TMI 745
Addition in respect of interest on FDs - CIT(A) made deleted addition as relying on caselaw Karnataka State Agricultural Produce Processing and Export Corporation limited [2013 (12) TMI 1668 - ITAT BANGALORE] - HELD THAT:- As DR could not point out about stay of operation or reversal of this judgment of Hon’ble Karnataka High Court rendered in the case of CIT vs. Karnataka State Agricultural Produce Processing and Export Corporation limited for A. Y. 2008-09 and she also could not point out any valid reason because of which the CIT (A) was not correct in following this judgment in the present case. Hence, we decline to interfere in the order of CIT (A) about first issue in respect of interest income as per Grounds 1 to 3.
Expenses incurred on schemes for which grants were received by the assessee from the Karnataka Government - CIT(A) allowed part relief - HELD THAT:- We find that CIT (A) has noted the various schemes for which grants were received by the assessee from the Karnataka Government and break up of the expenses of Rs. 46,63,097/- claimed by the assessee and a categorical finding is given by him that only one item of expenses of Rs. 271,598/- for Belaku Yojana Scheme is in respect of a scheme for which grant is received by the assessee and he has disallowed this amount and in respect of the balance amount allowed by him, he has given a categorical finding that these are business expenses of the assessee and for any scheme for which grant is received by the assessee. These findings of CIT (A) could not be controverted by the learned DR of the revenue and therefore, on this issue also, we decline to interfere in the order of CIT (A).
Revenue appeal dismissed.
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2020 (5) TMI 744
Grant of Anticipatory bail - on the pretext of marriage, alleged rape has been committed by applicant - Whether after being declared as an absconder under Section 82/83 of Cr.P.C. or by police through Farari Panchnama or through declaration of cash award for apprehension of accused, his application under Section 438 of Cr.P.C. seeking anticipatory bail before High Court or Sessions Court is maintainable or not? - HELD THAT:- It is to be kept in mind that Personal Liberty of an individual as ensured by Section 438 of Cr.P.C. is embodiment of Article 21 of Constitution of India in Cr.P.C. Therefore, scope and legislative intent of Section 438 of Cr.P.C. is to be seen from that vantage point.
It appears that on false promise of marriage, initially physical intimacy developed and later on both entered into wedlock but it is grievance of prosecutrix that he is already a married person. Certain bank transactions have already been referred and documented which indicate that they were in proximity. As submitted, both the parties earlier tried to settle the matter by filing petition under Section 482 of Cr.P.C. bearing No.930/2020. Therefore, both matured individuals waited the consequences of their decisions and both lived some days together comfortably.
Consensual proximity of Body and Soul cannot be used as a weapon to wreak vengeance at a later point of time when Body and Soul drift apart.
The bail application is allowed.
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2020 (5) TMI 743
Right of a stranger to challenge a decree passed on a compromise - challenge to the proceedings in a separate suit - restraint from entering into peaceful possession of the suit property - whether the suit filed by the Appellant-Plaintiff in seeking a declaration against the decree of compromise dated 15th September, 1994 passed by the High Court of Patna in Second Appeal was maintainable in view of the provisions of Order 23 Rule 3 and Rule 3A Code of Civil Procedure? - HELD THAT:- By introducing the amendment to the Code of Civil Procedure (Amendment) 1976 w.e.f. 1st February, 1977, the legislature has brought into force Rule 3A to Order 23, which create bar to institute the suit to set aside a decree on the ground that the compromise on which decree is based was not lawful. The purpose of effecting a compromise between the parties is to put an end to the various disputes pending before the Court of competent jurisdiction once and for all.
Rule 3A of Order 23 Code of Civil Procedure put a specific bar that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The scheme of Order 23 Rule 3 Code of Civil Procedure is to avoid multiplicity of litigation and permit parties to amicably come to a settlement which is lawful, is in writing and a voluntary act on the part of the parties. The Court can be instrumental in having an agreed compromise effected and finality attached to the same. The Court should never be party to imposition of a compromise upon an unwilling party, still open to be questioned on an application under the proviso to Rule 3 of Order 23 Code of Civil Procedure before the Court.
In the present case, the partition suit was filed in 1978 and after the decision of the trial Court, the matter went in first appeal and eventually, Second Appeal No. 495/86 before the High Court. During the pendency of first appeal being continuation of the suit as stated, one of the parties to the pending proceedings, namely, Sampatiya allegedly entered into a sale deed with the Appellant on 6th January, 1984.
It is well settled that the compromise decree passed by the High Court in the second appeal would relate back to the date of institution of the suit between the parties thereto. In the suit now instituted by the Appellant, at the best, he could seek relief against Sampatiya, but cannot be allowed to question the compromise decree passed by the High Court in the partition suit - The trial Court in any case would not be competent to adjudicate the grievance of the Appellant herein in respect of the validity of compromise decree dated 15th September, 1994 passed by the High Court in the partition suit.
In the instant case, the suit was instituted in the year 1995 and 25 years have rolled by now and after the finding has been recorded in reference to issue No. 7 regarding the right, title and interest of the suit property against the Appellant by the learned trial Judge devolved on the basis of a stated sale deed dated 6th January, 1984 and not interfered by the Court of Appeal preferred at the instance of the Appellant, in the given circumstances, remitting the matter back to the learned trial Court to examine the suit filed at the instance of the Appellant-Plaintiff independently for protection of his right, title or interest being devolved on the basis of the stated sale deed dated 6th January, 1984 which as alleged to have been executed by one of the party to the compromise (Sampatiya) in the changed circumstances may not serve any purpose more so after the concurrent finding of Courts below have been recorded against the Appellant-Plaintiff.
The appeal is without substance and the same is accordingly dismissed.
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2020 (5) TMI 742
Breach of contractual obligations - Whether COVID-19 can provide succour to a party in breach of contractual obligations? - Whether the invocation of the Bank Guarantees is liable to be injuncted on the ground of occurrence of a force majeure event i.e., COVID-19, if the breach occurred prior to the said outbreak?
Breach of contractual obligations - HELD THAT:- The question as to whether COVID-19 would justify non-performance or breach of a contract has to be examined on the facts and circumstances of each case. Every breach or non-performance cannot be justified or excused merely on the invocation of COVID-19 as a Force Majeure condition. The Court would have to assess the conduct of the parties prior to the outbreak, the deadlines that were imposed in the contract, the steps that were to be taken, the various compliances that were required to be made and only then assess as to whether, genuinely, a party was prevented or is able to justify its nonperformance due to the epidemic/pandemic - It is the settled position in law that a Force Majeure clause is to be interpreted narrowly and not broadly. Parties ought to be compelled to adhere to contractual terms and conditions and excusing non-performance would be only in exceptional situations.
In response to the Force Majeure argument of the Contractor, the Company’s stand is that activity related to petroleum projects were exempted as per the letter of DGH Hydrocarbon dated 26th March, 2020. The Contractor’s stand is that only petroleum production is exempted and not other construction/ project completion activity. However, there is nothing on record to show as to what steps the Contractor took toward mitigation, which was necessary as per the Force Majeure clause.
The past non-performance of the Contractor cannot be condoned due to the COVID-19 lockdown in March 2020 in India. The Contractor was in breach since September 2019. Opportunities were given to the Contractor to cure the same repeatedly. Despite the same, the Contractor could not complete the Project. The outbreak of a pandemic cannot be used as an excuse for nonperformance of a contract for which the deadlines were much before the outbreak itself.
Invocation of Bank Guarantee - HELD THAT:- As far as the Advance Bank Guarantees are concerned, a perusal of Clause 9.2(f) shows that upon termination, the Company would be entitled to draw upon the advance payment bond in the amount of the unrecovered portion of the advance payment. The `unrecovered portion’ is not yet determined. The invocation letters simply state that the amounts of the advance Bank Guarantees are unrecovered. A perusal of the petition shows that as per paragraph 3.23, it is the case of the contractor that approximately 6.6 million dollars has already been invoiced and is yet to be paid by the company - The Contractor has clearly defaulted in performance despite repeated opportunities by the Company. The Bank Guarantees are unconditional and irrevocable. All the Bank Guarantees are valid. The language of the financial and performance Bank Guarantees makes it clear that simply on demand, the bank would have to make payment.
At the time when the ad-interim order was passed by the ld. Single Judge the pleadings between the parties were not complete. In fact, most of the relevant correspondence was not filed by the Contractor and has now come on record by way of the reply and the rejoinder and further submissions filed by the parties. Thus, the submission on behalf of the Contractor that the ad-interim order ought to be continued is not tenable. The said order being ad-interim in nature, was prior to pleadings between the parties and does not deserve to be continued in favour of the Contractor - insofar as the invocation of three sets of Bank Guarantees are concerned, no case is made out for passing of any interim order staying the invocation or encashment thereof.
However, reconciliation of accounts would be required to determine as to what would be the component of the Advance Bank Guarantees recoverable by the Company. There are no pleadings as to what exactly is the amount recoverable. Accordingly, insofar as the Advance Bank Guarantees are concerned, this Court is of the opinion that the amount recoverable by the Company ought to be ascertained. Accordingly, it is directed that the amount of only the Advance Bank Guarantees which have been invoked, upon being encashed, shall be placed in a separate `Joint Account’ which shall be jointly held by the Contractor and the Company.
The ad-interim order dated 20th April, 2020 (as modified on 24th April 2020), stands vacated in the above terms. The present petition and all pending applications are disposed of.
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2020 (5) TMI 741
Gift instrument - Impounding the document treating the same to be as a Gift under Article 33 of Schedule IA of the Indian Stamp Act, 1899 as applicable to the Union Territory of Delhi - Release Deed deficiently stamped - HELD THAT:- In RANGANAYAKAMMA & ANR, VERSUS KS. PRAKASH (D) BY LRS. & ORS. [2008 (5) TMI 635 - SUPREME COURT], the Supreme Court observed that renunciation in the Indian context may be for consideration or may not be for consideration. Whether the instrument amounts to a release document or not is not a pure question of law.
In Chief Controlling Revenue Authority, Referring Officer v. Rustorn Nusserwanji Patel, [1967 (2) TMI 113 - MADRAS HIGH COURT], the Full Bench of the Madras High Court held that the nomenclature given to the instrument is not decisive nor is the language which the parties may choose to employ in framing the document. What is decisive is the actual character of the transaction and the precise nature of the rights created by means of the instrument. It further held that where two parties are co-owners, with a title which cannot be demarcated or fixed and there is joint possession and commonality of title, the documents transferring/releasing the title by one of the co-owners to the other would be a document of release. It further rejected the argument that a releaser cannot validly state in the instrument that he is effacing his rights in the property in favour of another named individual.
A reading of Recitals and Covenants/warranties would clearly show that the Relinquishment Deeds were indeed documents of conveyance and not Release simplicitor - By the order dated 15.05.2013, the respondent no. 2, apart from claiming the deficient Stamp Duty, has imposed a penalty of Rs. 1 lakh on the petitioner. The order does not give any reason for imposition of such penalty and its amount. It is noted that the deceased late Shri Jagdish Prashad Sharma is claimed to have left behind his Will bequeathing his share in the property to the petitioner. The Relinquishment Deeds have also been executed by the sisters in favour of the petitioner. Therefore, an intent to evade Stamp Duty on part of the petitioner is not evident.
The Impugned Order dated 01.03.2013 passed by the respondent no. 3 and the Impugned Order dated 15.05.2013, in so far as it demands deficient Stamp Duty of Rs. 6,60,257/- from the petitioner, are upheld. The Impugned Order dated 15.05.2013, in so far as it levies penalty of Rs. 1 lakh on the petitioner, is set aside - petitioner claims to have deposited the penalty amount with the respondents. The same be refunded to the petitioner along with interest at the rate of 6% per annum from date of deposit till its refund. Such refund shall be made within four weeks.
Petition allowed in part.
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2020 (5) TMI 740
Illegal gratification - Criminal misconduct - sub-clauses (ii) and (iii) of clause (d) of sub-section (1) of section 13 read with sub-section (2) of section 13 of the Prevention of Corruption Act, 1988 - whether it was necessary for the prosecution to establish that the appellant had demanded illegal gratification, for securing the appellant's conviction for committing an offence under section 13(1)(d) of the PC Act? - HELD THAT:- A plain reading of sub clause (ii) and sub-clause (iii) of clause (d) sub-section (1) of section 13 of the PC Act indicates that a public servant would commit an offence of criminal misconduct if he, by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. A plain reading of the sub-clauses of clause (d) of section 13(1) of the PC Act do not indicate that a demand of illegal gratification is a necessary ingredient of the offence of criminal misconduct. Thus, there is no reason to read-in such a condition in the said sub-clauses.
In P. Satyanarayana Murthy v. District Inspector of Police and Anr. [2015 (9) TMI 1666 - SUPREME COURT], the Supreme Court reiterated that the proof of demand of an illegal gratification is the gravamen of an offence under section 7 and sub-clauses (i) and (ii) of section 13(1)(d) of the PC Act.
The legislative intent is not to punish a public servant for any erroneous decision; but to punish him for corruption. The preamble of the PC Act indicates that it was enacted "to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith." Thus, to fall within the four corners of Sub-clause (ii) of clause (d) of Sub-section (1) of Section 13 of the PC Act, the decision/conduct of the public servant must be dishonest amounting to corruption. Transparency International defines corruption as\"the abuse of entrusted power for private gain" - Mens rea, the intention and/or knowledge of wrongdoing, is an essential condition of the offence of criminal misconduct under Section 13(1)(d)(ii) of the PC Act. Section 20 of the PC Act does not apply to offences under Section 13(1)(d) of the PC Act and therefore, mens rea cannot be presumed. It is, thus, necessary for the prosecution to establish the same.
Whether the appellant is liable to be acquitted in view of the enactment of the PC (Amendment) Act, 2018? - HELD THAT:- The provisions of Section 13 of the PC Act were substituted by virtue of the PC (Amendment) Act, 2018. It is well settled that the effect of substitution of a statutory provision by another is that the earlier provision is repealed and is replaced by the provisions so enacted. The provisions existing prior to the substitution cease to exist and the provisions enacted in substitution of the earlier provisions replace the earlier ones. Subject to any savings provision, the effect would be to write down the substituted provision in the Act as originally enacted.
This Court is unable to accept that if it is established beyond reasonable doubt that the appellant had abused his position for securing a pecuniary advantage to VISUL, the benefit of any beneficial construction of the PC (Amendment) Act, 2018 could be extended to him - In the present case, the contention on behalf of the appellant is that the prosecution had failed to establish any relationship between Sh. Vijay Joshi and the appellant and, therefore, the appellant is liable to be acquitted is a matter of evaluating the evidence. Whilst the contention advanced by the appellant is prima facie merited, this Court does not consider it apposite to consider this aspect in any detail at this stage.
Clearly, if the wider opinion is that persons charged with crimes ought to be disqualified from contesting elections to public offices, it would not be apposite for this Court to stay the appellant's conviction to overcome the disqualification incurred by him.
It would not be apposite to facilitate the appellant to contest elections for any public office, till he is finally acquitted - Application dismissed.
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2020 (5) TMI 739
Doctrine of forum non-conveniens - Territorial jurisdiction of this Court - place of cause of action - It was argued that no cause of action or part of cause of action has accrued to the petitioners within the State of U.P. and merely because the appellate and the revisional order had been communicated to them at their respective home districts in the State of Uttar Pradesh, same would not confer jurisdiction upon this Court to entertain the writ petitions.
HELD THAT:- What would constitute a cause of action obviously would depend upon the nature and character of the proceedings under Article 226 of the Constitution. Under Article 226 of the Constitution, the High Court can exercise powers to issue direction, order or writs for enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose. If the cause of action wholly or in part had arisen within the territory in relation to which it exercises jurisdiction, it can entertain the writ petition to pass orders or directions notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within its territories.
'Cause of action' implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitutes the cause of action. It has been interpreted to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. The question as to whether the Court has territorial jurisdiction to entertain a writ petition, has to be decided on the basis of averments in the petition, truth or otherwise thereof, however, would be immaterial.
Mere service of notice would not give rise to a cause of action unless service of notice is an integral part of the cause of action. The answer to the question whether service of notice is an integral part of the cause of action within the meaning of Article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to the cause of action. In order to confer jurisdiction on a High Court to entertain a writ petition, it must be disclosed that the integral fact pleaded in support of the cause of action do constitute a cause so as to empower the Court to decide the matter and the entire or a part of it arose within its jurisdiction - the doctrine "forum conveniens" has a limited application and the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.
The reference itself is not merited as there is no conflict of opinion in the decisions referred by the learned Single Judge - Reference disposed off.
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2020 (5) TMI 738
Rejection of claim for interest on deemed loan component - HELD THAT:- There is no dispute that the PPA which the parties entered into specifically referred to the notification of 30.03.1992 and further went on to state that for the first Kwh/KW, a plant load factor of 68.5% fixed charges and variable charges were deployed. For generation achieved over and above this by the concerned unit – CLP, an incentive @ 5.75% for every 1% increase over and above the fixed and variable charge payable was agreed to. Significantly, the fixed and variable charges are in consonance with the statutory notification of 30.03.1992 (which was also later amended on 17.01.1994). This much is clear from a plain reading of clause 7.1 of the Schedule VII to the PPA itself. In view of the fact that the notification amended on 06.11.1995 was a statutory one, there cannot be any doubt that it was binding upon the parties - the change of law provision (Clause 6.5 of the PPA) clearly contemplated that any amendment to the prevailing tariff notification (dated 30.03.1992) would bind the parties. Since Note (2) was an amendment, which dealt with the issue of incentive, it cannot now be said that it was inapplicable. The findings of the lower authorities, therefore, are correct; no interference is called for.
Whether the GERC and APTEL fell into error in granting restricted refund calculable for the 3 year period prior to Gujarat Urja's application? - HELD THAT:- There was no admission on the part of CLP, at least of the kind, that extended the time for preferring an application for recovery of excess payments. It has been consistently ruled by this court that repeated letters, or exchange of communications, do not extend the period of limitation, provided by law.
Payment of interest on deemed equity - HELD THAT:- The parties did not harbor any doubt about the period for which the specified interest was payable on such deemed loan. The rate of interest was fixed; likewise, the date from which payment obligations were to arise, too were known. Also, the date upto which the interest on such deemed loan payments were to be made, was known and fixed. In these circumstances, CLP's claim that the payment of interest for a prior period was outstanding, and constituted Gujarat Urja's liability, is insubstantial.
In the present case, the clear agreement between the parties was that interest on the sum of ₹ 53.90 crores was payable for the specified period 01.07.2003 to 31.12.2009.Therefore, CLP's claim that any amount was payable, for any period prior to 01.07.2003, was not tenable. Had CLP wished so, nothing prevented it to claim for it during negotiations and have it included as a term of the contract. Once having settled for a specified sum, on an amount (₹ 53.90 crores) that was only fictionally a loan - and treated as such, for purpose of fixing interest payable, considering the equity infused, in excess of the tariff regulations, the absence of any like item, such as interest for prior period, precludes a claim. But it was really part of the equity component. Therefore, interest was per se not payable, but could be paid in terms of the tariff notification or the agreement. No claim on any other legal or equitable considerations could have been made.
Appeal dismissed.
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2020 (5) TMI 737
Seeking cancellation of bail granted - accused/respondent is alleged to have played a major role in fixing the matches - HELD THAT:- While it is no doubt correct that cancellation of bail is no longer limited to the occurrence of supervening circumstances and in the absence of any such supervening circumstances, the court dealing with an application for cancellation of bail is empowered to consider the soundness of the bail order, it should not act capriciously and without good reason to cancel the bail once granted as liberty of an individual is at stake.
The State has every right to be aggrieved with the grant of bail to the accused, particularly when much effort has gone into his production before the court of law. All this seems to be a factor that tilts this case to a degree in favour of the State. The first warrant is stated to have been issued in the year 2004 against the present respondent/accused. 21 days before the FIR was registered, the respondent/accused, who was an Indian Passport holder and an Indian citizen at that time, left for the U.K.. The extradition process took a long time and then the respondent/accused could be extradited only on an assurance given by the Government as to the environment in which the respondent/accused would be detained in Tihar Jail. One cannot therefore doubt the genuineness of the concern of the State that releasing the respondent/accused on bail would lead to a situation where he is able to distance himself and jeopardise trial.
The State has come before this Court for seeking cancellation of bail immediately upon the grant of bail and, therefore, there has been no occasion for a disclosure through action or words, that the respondent/accused has/intends to thwart the process of justice or prevent fair trial. Liberty being precious to human life, bail once granted ought not to be lightly cancelled. The existence of supervening circumstances or other circumstances as listed hereinabove in their absence, must be strictly ascertained by the court before it cancels the bail already granted. The present case is not one such case where these circumstances exist as discussed above. The State has not succeeded in making out a case for cancellation of bail of the respondent/accused.
The present petition for cancellation of bail is accordingly dismissed.
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2020 (5) TMI 736
Recovery with future interest on the basis of written contract and negotiable instrument - It was contended that in view of the commencement of the proceedings under the SARFAESI Act there was a bar to institution of the suit - HELD THAT:- There can be no quarrel with the proposition that once the Pawnee invokes the pledge and sells the security the Pawnee is in law bound to give credit to the Pawner of the value of the sale proceeds. If the value of the sale proceeds exceeds the amount of debt the Pawnee is bound to refund the said excess amount to the Pawner. He would be entitled to institute an action to recover the balance amount of debt only.
During the subsistence of the pledge the voting rights in respect of the pledged securities were to be exercised by Defendant Nos. 4 and 5. However, once the pledge was invoked the voting rights in respect of the pledged securities were to be transferred and exercisable by the Plaintiff. This stipulation by itself does not amount to the sale of the pledged securities. It is nobody’s case that the Plaintiff has in fact sold the pledged securities and realized the value thereof - A mere stipulation in the agreement of pledge that after the invocation of the pledge, the Pawner would exercise the rights in respect of the pledged securities does not ipso facto amount to sale of the pledged securities by the Plaintiff unto itself.
The pronouncement of the Supreme Court in the case of IDBI TRUSTEESHIP SERVICES LTD. VERSUS HUBTOWN LTD. [2016 (11) TMI 1529 - SUPREME COURT], especially the proposition expounded in para 17.6 that, “if any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court” governs the facts of the case - conditional leave to defend the suit granted subject to deposit of the principal amount of Rs. 29 Crore and interest of Rs.3,94,71,781/- at the agreed rate of 13.50% p.a. as of 10th January, 2019.
Summons disposed off.
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