|
Advanced Search Options
Case Laws
Showing 1 to 20 of 148 Records
-
1982 (10) TMI 224
Issues Involved:
1. Conviction under Section 161, IPC and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947.
2. Validity of evidence from the complainant who was deceased at the time of trial.
3. Reliability of witnesses (motbirs) involved in the case.
4. Presence of phenolphthalein powder on the hands of the accused.
5. Demand and acceptance of bribe.
6. Presumption under Section 4(1) of the Prevention of Corruption Act, 1947.
Issue-wise Detailed Analysis:
1. Conviction under Section 161, IPC and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947:
The appellant, serving as a Factory Inspector, was convicted by the Special Judge for demanding and accepting bribes, sentenced to rigorous imprisonment for one year, and fined Rs. 200/-. The High Court upheld this conviction, leading to the appellant filing an appeal by special leave to the Supreme Court.
2. Validity of evidence from the complainant who was deceased at the time of trial:
The complainant, Rajendra Dutt, was deceased by the time the trial commenced. His written complaint (Ext. P-12) was admitted in evidence but could not be used as substantive evidence. The court noted that the complaint could only explain subsequent actions taken by the Dy. SP but not provide direct testimony against the appellant.
3. Reliability of witnesses (motbirs) involved in the case:
The defense argued that the two motbirs, Ram Babu and Keshar Mal, were unreliable as they were petty clerks and possibly under police influence. The court rejected this argument, stating that truth is not the monopoly of affluent or highly placed persons. The court found no reason to disbelieve their testimony solely based on their occupational status.
4. Presence of phenolphthalein powder on the hands of the accused:
The defense suggested that the phenolphthalein powder could have been transmitted to the appellant's hands by the raiding party members. The court found this explanation implausible, as the evidence showed that no other member of the raiding party touched the phenolphthalein powder during the demonstration. This corroborated the prosecution's case that the appellant accepted the marked currency notes.
5. Demand and acceptance of bribe:
The court examined the evidence and circumstances, including the testimony of the motbirs and the sequence of events leading to the trap. The court found that the demand for the bribe on November 20, 1974, and the subsequent acceptance of the bribe on November 22, 1974, were sufficiently proven. The absence of the appellant's name in the initial complaint was deemed insignificant, as the complainant referred to the appellant by his official designation.
6. Presumption under Section 4(1) of the Prevention of Corruption Act, 1947:
The court held that the presumption under Section 4(1) was rightly raised, as the facts showed a demand and voluntary acceptance of the bribe. The appellant's defense that the money was planted was rejected, and the court found no circumstances to impinge upon the prosecution's case.
Conclusion:
The Supreme Court upheld the conviction and sentence, dismissing the appeal. The court found that the prosecution had proven the case beyond a reasonable doubt, and the appellant's defense was not plausible. The bail bond of the appellant was canceled, and he was required to surrender to serve out the sentence.
-
1982 (10) TMI 223
Issues:
1. Liability of a carrier for loss of goods entrusted to them.
2. Extent of liability of a common carrier in India.
3. Exception to absolute liability of carrier - special contract and act of God.
4. Interpretation of exclusion clause in a special contract limiting liability for loss or damage.
Analysis:
1. Liability of a Carrier:
The case involved a firm acting as a carrier for goods entrusted to them by the Plaintiff. The goods were lost in a fire at the Defendant's premises, leading to non-delivery. The Defendant argued that the fire was caused by a short circuit and not due to negligence, therefore claiming they were not liable for the loss. However, the court held that as a carrier, the Defendant was responsible for the loss of goods, even if not due to negligence, based on the concept that carriers are insurers of goods they transport.
2. Extent of Liability of a Common Carrier:
The judgment discussed the liability of a common carrier in India, stating that it is more extensive than that of a bailee under the Indian Contract Act. A common carrier is considered an insurer of goods and is answerable for their loss, except in cases of act of God or King's enemies. The court referred to a previous judgment highlighting the absolute liability of common carriers and the distinction between the liability of carriers under English Common Law and Roman Law.
3. Exception to Absolute Liability:
The absolute liability of a carrier is subject to two exceptions - special contract and act of God. The court clarified that not every inevitable accident can be considered an act of God. The judgment emphasized that only those acts resulting from natural causes, not human agency, can be categorized as acts of God. In this case, the fire at the Defendant's premises was not deemed an act of God, and thus, the carrier could not escape absolute liability.
4. Interpretation of Exclusion Clause in Special Contract:
The Defendant attempted to rely on an exclusion clause in the special contract, which exempted liability for loss due to fire, among other things, provided reasonable precautions were taken. However, the court found that the Defendant had not taken any precautions against fire, such as having fire extinguishers or a watchman on the premises. Therefore, the exclusion clause could not be invoked, and the Defendant was held liable for the loss of goods. The court upheld the trial court's decree in favor of the Plaintiff.
In conclusion, the appeal challenging the decree for damages granted to the Plaintiff was dismissed, and the Defendant was held liable for the loss of goods due to the fire at their premises, as carriers are considered insurers of goods they transport.
-
1982 (10) TMI 222
Issues Involved:
1. Whether the opposite party No. 14 could review his earlier order dated 2-4-66 by invoking the powers under Section 151, C.P.C.
2. Whether the opposite party No. 14 could recall or ignore the order dated 2-4-66 treating the same to be a nullity.
Issue-wise Detailed Analysis:
Issue 1: Whether the opposite party No. 14 could review his earlier order dated 2-4-66 by invoking the powers under Section 151, C.P.C.
The judgment clarifies that the term "review" means a judicial re-examination of the case in certain specified and prescribed circumstances. The power of review is not inherent in a Court or Tribunal; it is a creature of the statute. Courts or Tribunals of limited jurisdiction created under special statutes, like the O.E.A. Collector, do not have inherent power to review their own decisions unless permitted by statute. Section 38-A of the Orissa Estates Abolition Act, which came into force on 2-10-1973, authorizes the O.E.A. Collector to review his decision or order within one year from the date of the decision or order on the ground of clerical or arithmetical mistakes. The application for review in this case was filed on 23-7-74, and none of the grounds for review under Section 38-A existed. Therefore, the O.E.A. Collector could not review his order on grounds not falling within the ambit of Section 38-A, nor could he exercise the power of review after the expiry of the one-year period prescribed by Section 38-A.
Issue 2: Whether the opposite party No. 14 could recall or ignore the order dated 2-4-66 treating the same to be a nullity.
It is well established that if a decree or an order is apparently a nullity, it can be ignored. The judgment cites Kiran Singh v. Chaman Paswan, where it was observed that a decree passed by a Court without jurisdiction is a nullity and its invalidity can be set up whenever and wherever it is sought to be enforced or relied upon. In this case, the contention was that the order dated 2-4-66 was a nullity as the Estate Abolition Collector lacked inherent jurisdiction to entertain an application under Sections 6 and 7 of the Act after the expiry of the period of limitation.
The judgment explains that inherent lack of jurisdiction means a power or jurisdiction that does not at all exist or vest in a Court. If a Court has jurisdiction over the subject matter and the parties, even if it decides wrong, it does not act beyond its jurisdiction. The O.E.A. Collector had jurisdiction to entertain and decide applications under Sections 6 and 7 of the Act in respect of the subject matter of the dispute. Therefore, the order of settlement was not a nullity, even if the application was barred by limitation. The decision on the question of limitation is taken only after the Court or Tribunal has embarked upon an enquiry, and if a decision is taken in a suit or proceeding barred by time, it is not a nullity but an illegality that can only be remedied by an appellate or revisional authority.
The judgment also addresses the contention that the public notice of the claim was not given as required by the first proviso to Sub-section (2) of Section 8-A of the Act. The Estate Abolition Collector observed that the manner of service of the notice was not mentioned in the order-sheet, but the records showed that the notice was duly issued and objections were filed. The onus was on the opposite parties to prove non-compliance with the provisions, and no evidence was adduced to show that there was no proclamation at the locality. The appellate authority did not record a finding that the provisions of Section 8-A (2), first proviso, were not duly complied with.
Finally, the judgment addresses the contention that the petitioner deity was not an ex-intermediary in respect of Khata No. 431 and that the character of some plots of land was not such as could have been settled under Sections 6 and 7 of the Act. This contention was not raised in the application for review, and the Estate Abolition Collector did not take such a ground for granting review. The order of settlement dated 2-4-66 was not reversed by appeal or revision, and the Tribunal could not recall or ignore its own order.
Conclusion:
The writ application is allowed, and the orders in Annexures 1 and 2 are quashed. No order as to costs is made.
-
1982 (10) TMI 221
Issues:
- Bail application under Section 167(2) Proviso of the Code of Criminal Procedure
- Completion of investigation within 90 days from the date of arrest
- Submission of charge-sheet before completion of investigation
- Interpretation of Section 2(r) and Section 173 of the Code of Criminal Procedure
- Difference between a charge-sheet and a preliminary report
- Validity of charge-sheet despite absconding accused
- Consideration of subsequent bail applications based on new events or materials
Analysis:
The judgment deals with a bail application under Section 167(2) Proviso of the Code of Criminal Procedure, contending that investigation was not completed within 90 days from the arrest. The petitioner argued that the charge-sheet filed before completion of investigation entitled him to bail, citing various decisions. The standing counsel argued that the charge-sheet was complete, containing all necessary statements and documents as required by law. The judge examined the relevant provisions of Section 173, emphasizing the requirement of a complete charge-sheet after investigation.
The judge clarified that under the Code of Criminal Procedure, there is no provision for an incomplete or preliminary charge-sheet. The charge-sheet under Section 173(2) must be submitted after the completion of investigation for taking cognizance of the offense. Section 173(8) allows for further investigation and submission of a supplementary charge-sheet, not a preliminary one. The judge emphasized that the substance of the report matters, and merely labeling it as incomplete does not exempt it from the requirements of Section 173(2).
In this case, the judge agreed with the standing counsel that the charge-sheet contained all necessary details and documents, despite some accused being absconding. The judge noted that cognizance was taken promptly after the charge-sheet submission, and previous bail applications did not raise the current contentions. The judge highlighted that subsequent bail applications can be based on new events or materials but found no merit in the current application as investigation had been completed. Consequently, the bail application was rejected, as the petitioner was not entitled to bail under Section 167(2) Proviso.
In conclusion, the judgment clarifies the distinction between a complete charge-sheet and a preliminary report, emphasizing the importance of fulfilling legal requirements for submission. It also underscores the significance of timely completion of investigations and the validity of charge-sheets even in the presence of absconding accused. Subsequent bail applications can be considered based on new grounds, but the court will assess the substance of the case and the completion of investigations before granting bail.
-
1982 (10) TMI 220
Issues Involved:
1. Deletion of the addition of the closing stock.
2. Rate of exchange for the dollar to be adopted for closing stock valuation.
3. Applicability of proviso to section 145(1) of the Income-tax Act, 1961.
4. Weighted deduction under section 35B of the Income-tax Act, 1961.
Analysis of the Judgment:
1. Deletion of the Addition of the Closing Stock:
The revenue contended that the Commissioner (Appeals) erred in deleting the addition of the closing stock. The assessee, a firm dealing in precious and semi-precious stones, valued its closing stock at cost, a method consistently followed over the years. The Income Tax Officer (ITO) observed a disparity rate of 48% between the export value and the actual value shown in the closing stock, resulting in an undervaluation. The ITO considered a disparity rate of 40% reasonable, as held by the Tribunal for the assessment year 1975-76, and made an addition of Rs. 7,17,844 to the declared profits.
The Commissioner (Appeals) upheld the applicability of proviso to section 145(1) but deleted the addition, emphasizing that the gross profit rate should be the sole criterion for valuation. The Commissioner noted that the disparity rate and gross profit rate vary yearly and from exporter to exporter. The Commissioner also observed that the ITO did not provide specific reasons for deviating from the earlier appellate decisions and that the exchange rate adopted by the assessee was nearer to the date of production.
2. Rate of Exchange for the Dollar to be Adopted for Closing Stock Valuation:
The ITO adopted an exchange rate of Rs. 8.95 per dollar for valuing the closing stock, while the assessee used Rs. 7.50 per dollar up to 30-6-1976 and Rs. 8.50 thereafter. The Commissioner (Appeals) held that the exchange rate at the time of making the proforma invoice was more appropriate than the rate on the closing day of the accounting year. The Tribunal agreed with the Commissioner, stating that the scientific approach would be to adopt the exchange rate prevailing on the last day of the accounting period. However, since the ITO did not apply this method to the opening stock, the Tribunal refrained from enhancing the asking price of the closing stock.
3. Applicability of Proviso to Section 145(1) of the Income-tax Act, 1961:
The Tribunal agreed that the proviso to section 145(1) was applicable due to the absence of a day-to-day quality-wise stock tally and a definite method of arriving at the cost of each lot. The Tribunal concluded that the disparity rate and gross profit rate should be the same and that the closing stock must be valued first to arrive at the correct gross profit. The Tribunal emphasized that the correct profits can only be worked out after valuing the closing stock.
4. Weighted Deduction under Section 35B of the Income-tax Act, 1961:
The assessee claimed a weighted deduction on various expenses aggregating to Rs. 69,770. The ITO allowed a weighted deduction on expenses of Rs. 42,425, considering that export sales constituted 50% of the total sales. The Commissioner (Appeals) directed the ITO to modify the computation, treating 75% of the expenses as relating to export since export sales constituted 75% of the total sales. The Tribunal upheld the Commissioner (Appeals)'s direction, noting that the ITO's finding that export sales constituted 50% of the total sales was arithmetically incorrect.
Conclusion:
The appeal was dismissed. The Tribunal upheld the deletion of the addition of Rs. 7,17,844 made by the ITO on account of alleged undervaluation of closing stock. The Tribunal also upheld the direction of the Commissioner (Appeals) to treat 75% of the expenses as relating to export for the purpose of weighted deduction under section 35B. The Tribunal emphasized that the correct valuation of closing stock is essential for arriving at the correct gross profit and that the disparity rate and gross profit rate should be the same.
-
1982 (10) TMI 219
Issues:
1. Validity of termination of service and nature of appointment given to the respondent.
2. Interpretation of the Resolution Ext. 6 and 7 regarding the appointment status.
3. Decision on whether the respondent was a permanent employee and entitled to reinstatement.
4. Consideration of humanitarian aspects and exercise of discretionary jurisdiction under Article 136.
5. Determination of the appropriate relief and modification of the High Court's judgment.
Analysis:
1. The respondent, an Overseer, was initially appointed by the Municipal Board but was later prosecuted and convicted for attempting to accept illegal gratification. The Board terminated his service based on a directive from the Local Self Government Department. The respondent challenged the termination, claiming it was void and sought reinstatement. The trial court and District judge upheld the termination, but the High Court declared it illegal, granting the respondent arrears of salary until reinstatement.
2. The High Court determined that the appointment given to the respondent through Resolution Ext. 6 was a reinstatement after revoking the suspension order, not a fresh appointment as claimed by the Municipal Board. The Resolution Ext. 7 also indicated the rejection of the respondent's request for salary during the suspension period, reinforcing the view of reinstatement rather than a new appointment.
3. The respondent's status as a permanent employee was a key point of contention. The High Court held that the reinstatement did not alter his permanent status, contrary to the Municipal Board's argument that the fresh appointment made him a temporary servant. The Court concluded that the respondent was entitled to arrears of salary and benefits until his reinstatement, emphasizing his permanent employee status.
4. The Supreme Court deliberated on the legal implications of the case and the exercise of discretionary jurisdiction under Article 136. While acknowledging the legal position, the Court considered the humanitarian aspect, citing precedents where equitable considerations influenced judgments despite legal technicalities. The Court emphasized the need to balance the rule of law with equitable outcomes, leading to a modified judgment in favor of the respondent.
5. Ultimately, the Supreme Court allowed the appeal, modifying the High Court's judgment. The respondent was to be treated as in service, disregarding the termination order, but without entitlement to salary during the period of termination. Upon reinstatement, his salary was to be recalculated to include all due increments. The Court set aside the rest of the High Court's judgment, except for a minor amount decreed by the trial court, and ordered the respondent to report for duty within two weeks. No costs were awarded in the circumstances of the case.
-
1982 (10) TMI 218
Issues:
Appeal against dismissal for failure to comply with court's order to supply paper-books within the prescribed time.
Analysis:
The Supreme Court granted special leave in an appeal against the Calcutta High Court's order dismissing the appeal due to non-compliance with the order to prepare and supply paper-books within the specified time frame. The High Court had previously condoned a default but dismissed the appeal upon subsequent non-compliance. The Supreme Court directed notice issuance and stay of dispossession, subject to filing paper-books within four weeks. Another related civil appeal became infructuous due to the withdrawal of an order granting leave to amend the plaint. The Supreme Court disposed of the infructuous appeal and set the present appeal for hearing.
The appellant contended that the present appeal had also become infructuous due to another order, but the Supreme Court found no evidence of the High Court withdrawing the order dismissing the appeal for failure to supply paper-books. Emphasizing the importance of obeying court orders, the Court noted that penalties for non-compliance should be proportionate to the lapse. Quoting Sangram Singh v. Election Tribunal, the Court highlighted that procedural steps should not impede access to justice. The Court criticized the High Court's approach, suggesting that directing the respondents to prepare paper-books and imposing costs on the appellants would have been more effective in expediting the appeal.
The Supreme Court found the High Court's penalty disproportionate and interfered in the matter. The appellants had since supplied the paper-books, leading the Court to allow the appeal, set aside the dismissal order, and remit the case back to the High Court for expeditious disposal. The High Court was given the discretion to handle the appeal as it deemed fit, with no costs imposed on either party.
-
1982 (10) TMI 217
Issues Involved:
1. Transmission of 2% shares held by the late Mr. A.C. Daphtary.
2. Transfer of 9% shares held by the Swedish company to Mr. M.T. Shah.
3. Allegations of oppression and mismanagement under Sections 397 and 398 of the Companies Act, 1956.
4. Compliance with the Foreign Exchange Regulation Act (FERA), 1973.
5. Validity of the board resolutions passed on August 25, 1981.
6. Termination of the sole selling agency agreement.
Issue-wise Detailed Analysis:
1. Transmission of 2% Shares Held by the Late Mr. A.C. Daphtary:
The court examined whether the transmission of shares from the late Mr. A.C. Daphtary to Mrs. Leila Daphtary was valid under the Articles of Association. Article 48 stipulates that only the executor, administrator, or succession certificate holder can be recognized for transmission. The executor, Mr. Jagjit Singh, had not applied for transmission, and no probate had been granted. The court held that Mrs. Daphtary had no locus standi to apply for transmission. Article 49, which allows for transfer upon the death of a member, was also considered. However, the court found that even if Article 49 applied, the transfer to Mr. M.T. Shah violated Articles 34, 35, and 40, which provide pre-emptive rights to existing shareholders.
2. Transfer of 9% Shares Held by the Swedish Company to Mr. M.T. Shah:
The court scrutinized the transfer of 9% shares from the Swedish company to Mr. M.T. Shah, focusing on Article 34, which restricts share transfers without the consent of all shareholders. The court found no evidence of such consent, either written or implied. The court emphasized that consent must be an individual act of each shareholder and cannot be inferred from the presence of a representative at a board meeting. The court also noted that the Swedish company's attempt to transfer shares to Mr. Shah was a circumvention of the FERA, which mandates dilution of foreign equity participation.
3. Allegations of Oppression and Mismanagement:
The petitioners alleged that the Swedish group, with the help of Mr. Shah, was oppressing the Indian group. The court agreed, noting several instances of oppressive conduct, including the manipulation of board resolutions and attempts to terminate the sole selling agency agreement. The court found that the actions of the Swedish group and Mr. Shah lacked probity and fair dealing, thereby justifying relief under Sections 397 and 398 of the Companies Act.
4. Compliance with the Foreign Exchange Regulation Act (FERA), 1973:
The court highlighted that the Swedish company's actions were in clear contravention of the FERA, which requires foreign equity participation to be reduced to 40%. The court emphasized that the provisions of the FERA are intended to ensure effective Indian control of companies with foreign equity participation. The court found that the Swedish company's attempt to transfer shares to Mr. Shah was a deliberate attempt to circumvent these provisions.
5. Validity of the Board Resolutions Passed on August 25, 1981:
The court examined the validity of the board resolutions passed on August 25, 1981, which included the transmission of shares to Mrs. Daphtary and the transfer of shares to Mr. Shah. The court found these resolutions to be void and illegal, as they were not on the agenda and lacked the necessary consent from all shareholders. The court also noted that the resolutions were passed in the absence of the nominee directors of the Singh group, further questioning their validity.
6. Termination of the Sole Selling Agency Agreement:
The court addressed the petitioners' apprehension that the sole selling agency agreement with petitioner No. 5, M/s. B.M. Singh and Sons, would be terminated. The court found that the petitioners' apprehension was justified, given the hostile actions of Mr. Shah and the Swedish group. The court granted an injunction restraining the termination of the agreement, which was valid until May 1983.
Conclusion:
The court declared the resolutions passed on August 25, 1981, void and illegal. It directed the Swedish company to transfer 9% of its shares to existing shareholders other than the Swedish group, in compliance with Article 34 of the Articles of Association. The court also set up a committee of management to oversee the company's affairs until a new board of directors is elected. The petitioners were awarded costs, and the court emphasized the importance of adhering to the FERA and the Articles of Association to ensure fair and lawful management of the company.
-
1982 (10) TMI 216
Issues Involved:
1. Deductibility of expenses for computing the value of goods under Section 4 of the Excise Act before its amendment.
2. Deductibility of expenses after the amendment of Section 4.
3. Inclusion of charges related to primary and secondary packing under amended Section 4.
4. Validity of Section 4(4)(d)(1) in relation to packing material costs.
Detailed Analysis:
I. Deductibility of Expenses Before Amendment of Section 4:
The court examined whether expenses such as publicity, storage, and sales promotion were deductible in computing the value of goods for excise duty purposes under the unamended Section 4 of the Excise Act. The court emphasized that the valuation should be based on the "wholesale price at the factory gate" without any deductions for post-manufacturing expenses. It relied heavily on the Supreme Court's decision in the Voltas Case, which clarified that the excise duty is payable on "manufacturing costs plus manufacturing profits" and not on the wholesaler's profits. The court concluded that there is no provision in Section 4 for making deductions for post-manufacturing expenses, and thus, such deductions are not justified.
II. Deductibility of Expenses After Amendment of Section 4:
The court addressed whether the amendment to Section 4 altered the position regarding the deductibility of expenses. It noted that the amended Section 4 still focuses on the "normal price at which such goods are ordinarily sold in the course of wholesale trade for delivery at the factory gate." The court found that the amendment did not change the fundamental principle that post-manufacturing expenses are not deductible. The court reiterated that the expenses for publicity, storage, and other similar categories are not deductible from the wholesale price at the factory gate, even after the amendment.
III. Inclusion of Charges Related to Primary and Secondary Packing:
The court examined whether charges related to primary and secondary packing are includible under the amended Section 4. The amended provision explicitly includes the cost of packing in the valuation of excisable goods unless the packing is of a durable nature and returnable by the buyer. The court rejected the petitioners' contention that the cost of packing should be excluded from the valuation. It held that the inclusion of packing costs is justified as the goods cannot be sold in a marketable condition without packing, making it an integral part of the manufacturing process.
IV. Validity of Section 4(4)(d)(1):
The court addressed the challenge to the vires of Section 4(4)(d)(1), which includes the cost of packing material in the valuation of excisable goods. The petitioners argued that this provision effectively imposes a sales tax, which is beyond the legislative competence of the Parliament. The court rejected this argument, stating that the levy remains an excise duty linked to the manufacture of the excisable article, not a sales tax. The court emphasized that the inclusion of packing costs in the valuation does not change the nature of the levy, which is still on the manufacture of goods.
Conclusion:
The court found no merit in the petitioners' contentions and ruled that:
1. Expenses for publicity, storage, and sales promotion are not deductible in computing the value of goods for excise duty purposes under both the unamended and amended Section 4.
2. Charges related to primary and secondary packing are includible in the valuation of excisable goods under the amended Section 4.
3. Section 4(4)(d)(1), which includes the cost of packing material in the valuation, is valid and does not constitute a sales tax.
The court dismissed the petitions, discharged the rule, and vacated the interim orders, with no order as to costs.
-
1982 (10) TMI 215
Issues Involved:
1. Admissibility of the unstamped power of attorney.
2. Purpose of letting the premises.
3. Ownership of the property.
4. Bona fide requirement of the respondent for the premises.
Issue-wise Detailed Analysis:
1. Admissibility of the unstamped power of attorney:
The appellant contended that the eviction petition was filed by the respondent's attorney without a duly stamped power of attorney, which was executed in London on 8th November 1977 and not stamped within three months of its receipt in India as required under Section 18(1) of the Indian Stamp Act, 1899. The Additional Controller had impounded the document and directed the respondent to pay the stamp duty and penalty under Section 35 of the Indian Stamp Act. The court opined that upon payment of the stamp duty and penalty, the document became admissible in evidence per Section 35. The argument that payment does not make the document admissible after three months was dismissed, citing that Sections 31 and 32 were not applicable in this context. The court cited precedents supporting the admissibility of such documents upon payment of the required duties and penalties.
2. Purpose of letting the premises:
The respondent claimed the premises were let for residential purposes, while the appellant contended they were not specifically for residential purposes and could be used for all purposes. The court noted that the land was a lease-hold property meant for residential use per the lease deed between the President of India and the respondent. The appellant admitted using the premises for residential purposes since the inception of the tenancy. The court held that the onus was on the appellant to prove the premises could be used for purposes other than residence, which he failed to do. Thus, it was concluded that the premises were let for residential purposes.
3. Ownership of the property:
The appellant disputed the respondent's ownership of the property. The respondent testified that he was the owner and presented the lease deed (Ex. A.W. 1/1) as evidence. The appellant argued that the contents of the lease deed were not proved as the executant was not examined. The court found that the respondent's testimony, coupled with the lease deed in his favor, was sufficient to establish ownership. The appellant did not cross-examine the respondent on this point, effectively admitting the respondent's ownership. The court dismissed the appellant's reliance on case law requiring the executant's testimony for proving document contents, as the facts were not applicable here.
4. Bona fide requirement of the respondent for the premises:
The appellant argued that the respondent's requirement was not bona fide, alleging that the respondent was a British national settled in London. The respondent and his wife, both retired, expressed their desire to live in their own country, India. The court noted that the respondent did not own any other property in Delhi and intended to occupy the suit premises. The court emphasized that Section 19 of the Act provided sufficient protection, ensuring the landlord occupies the premises within two months and retains it for at least three years, failing which the tenant could reclaim possession. The court upheld the concurrent findings of the Controller and the Tribunal that the respondent's requirement was bona fide.
Conclusion:
The court found no infirmity in the Tribunal's judgment and order confirming the eviction against the appellant. Consequently, the appeal was dismissed with no order as to costs.
-
1982 (10) TMI 214
Issues Involved:
1. Legality of charging compound interest with quarterly or monthly rests by the bank.
2. Whether the interest rate of 16.5% per annum, including penal interest and service charges, was excessive and whether the provisions of the Mysore Usurious Loans Act, 1923 could be applied to mitigate the rigour of the loan transaction.
Issue-wise Detailed Analysis:
1. Legality of Charging Compound Interest with Quarterly or Monthly Rests by the Bank:
The appeal raised questions about the constraints on banking institutions to charge interest on loans/advances and the power of courts to examine such transactions. The appellant contended that there was no banking practice to charge interest with quarterly or monthly rests without statutory sanction by the Reserve Bank of India (RBI). The respondent maintained that banking practice accepted by all banking institutions included charging compound interest quarterly or monthly.
The court examined the directives and circulars issued by the RBI, which had a significant bearing on the questions. The RBI's directives and circulars are statutory instruments of national policy, and banks are bound by them. The court found that the ordinary practice or custom of banks was to charge interest with yearly or half-yearly rests, not monthly or quarterly rests. The RBI directives aimed to ensure uniformity in practices among banks, which presupposed that there was no such uniform practice before. The court concluded that charging interest with monthly rests was not a recognized banking practice and was usurious, while quarterly rests were not warranted by the facts and circumstances of the case.
2. Whether the Interest Rate of 16.5% Per Annum, Including Penal Interest and Service Charges, Was Excessive and Whether the Provisions of the Mysore Usurious Loans Act, 1923 Could Be Applied:
The appellant argued that the interest rate of 16.5% per annum, coupled with penal interest and service charges, was excessive and unreasonable, and should be scaled down under the Mysore Usurious Loans Act, 1923. The respondent contended that the interest rate was justified and could not be scaled down by applying the norms under the Mysore Usurious Loans Act.
The court analyzed the provisions of the Mysore Usurious Loans Act, 1923, which empowers the court to reopen transactions and relieve the debtor of all liability in respect of excessive interest if the transaction was substantially unfair. The court found that the interest charged at 16.5% per annum with monthly rests was excessive and not justified by any special circumstances. The court reduced the interest rate to 12.5% per annum with annual rests from the date of the equitable mortgage, aligning with the minimum lending rate prescribed by the RBI. The court also held that the penal interest charged was unauthorized and illegal, as there was no stipulation in the transaction for such penal interest. The service charges were allowed to be recovered as processing fees at the rate prescribed by the RBI, subject to a maximum of Rs. 2,500 once-for-all.
Conclusion:
The court allowed the appeal, reversing the judgment and decree of the lower court, and remitted the matter for disposal on merits in light of the observations made. The court emphasized the need for the RBI to address the issue of banks charging interest in contravention of its directives and suggested remedies to ensure compliance. The request for a certificate for appeal to the Supreme Court was refused, as the case did not involve a substantial question of law of general importance.
-
1982 (10) TMI 213
Issues Involved:
1. Entitlement to interest subsequent to August 1977.
2. Discretion of the court in granting interest under Section 34 of the Civil Procedure Code (CPC).
3. Applicability of provisions of the Transfer of Property Act and the West Bengal Financial Corporation Act, 1951.
Issue-wise Detailed Analysis:
1. Entitlement to interest subsequent to August 1977:
The primary contention in this appeal was whether the petitioner, a secured creditor, was entitled to interest subsequent to August 1977, as per the mortgage deed. The learned trial Judge had directed payment of the principal amount, interest, insurance charges, and consultant fees up to August 1977 but did not grant interest thereafter. The petitioner argued that as a secured creditor, they were entitled to full interest at the rate mentioned in the mortgage deed until payment. The court noted that the learned Judge did not provide any reason for not granting subsequent interest, which was seen as an error.
2. Discretion of the court in granting interest under Section 34 of the Civil Procedure Code (CPC):
The court examined whether it had the discretion to grant or refuse interest under Section 34 of the CPC. The provision allows the court to order interest at a reasonable rate from the date of the suit to the date of the decree and further interest not exceeding six percent per annum from the date of the decree to the date of payment. The court referred to several judgments, including those of the Privy Council and the Federal Court, which indicated that while the court must decree pendente lite interest, it has discretion over the rate of interest. The court concluded that there was no discretion about granting or not granting interest, but discretion existed regarding the rate of interest.
3. Applicability of provisions of the Transfer of Property Act and the West Bengal Financial Corporation Act, 1951:
The petitioner relied on Sections 58, 60, 67, and 68 of the Transfer of Property Act, which establish that a secured creditor is entitled to enforce their rights outside the scope of winding-up proceedings and be paid according to the mortgage deed. The court noted that the petitioner, being a secured creditor, was outside the winding-up proceedings and entitled to enforce their rights. However, the enforcement of these rights must be regulated by the CPC, specifically Section 34 and Order 34. Additionally, the court acknowledged that the West Bengal Financial Corporation Act did not grant the petitioner any greater rights than those available under the law.
Conclusion:
The court modified the order of the learned trial Judge, directing that interest at half percent per annum be granted from August 1977 to December 14, 1978, during the pendency of the litigation, and no interest thereafter. The court emphasized that there was no discretion about granting or not granting interest but discretion regarding the rate of interest. The parties were directed to bear their own costs, with the Official Liquidator retaining costs out of the assets in his hands. The stay requested was refused.
Separate Judgment:
Suhas Chandra Sen, J. concurred with the judgment.
-
1982 (10) TMI 212
The Supreme Court dismissed a petition in a case involving a charge under Section 34(a) of the Andhra Pradesh Excise Act for possession of illicit arrack. The High Court reduced the sentence below the statutory minimum, which was deemed an error by the Supreme Court. The petition was dismissed with this observation.
-
1982 (10) TMI 211
Issues Involved:
1. Transfer of 2% shares held by late Mr. A.C. Daphtary.
2. Transfer of 9% shares held by the Swedish company.
3. Compliance with Articles of Association.
4. Allegations of oppression under Section 397 of the Companies Act.
5. Allegations of mismanagement under Section 398 of the Companies Act.
6. Compliance with Foreign Exchange Regulation Act (FERA).
7. Validity of resolutions passed at the board meeting on August 25, 1981.
8. Appointment of a committee of management.
9. Conduct of the Swedish group and Mr. M.T. Shah.
10. Role of the Reserve Bank of India (RBI).
Issue-Wise Detailed Analysis:
1. Transfer of 2% Shares Held by Late Mr. A.C. Daphtary:
The court examined Articles 48 and 49 of the Articles of Association concerning the transmission of shares. Article 48 applies to the executor or administrator of a deceased member, requiring probate or letters of administration. Article 49 allows a person entitled to shares due to death to be registered as a member with the board's consent. The court found that Mrs. Daphtary lacked the locus standi to apply for the transmission of shares without probate. The transfer of these shares to Mr. M.T. Shah was deemed invalid as it violated pre-emptive rights under Articles 34, 35, and 40.
2. Transfer of 9% Shares Held by the Swedish Company:
The transfer of 9% shares to Mr. M.T. Shah was challenged based on Article 34, which restricts share transfers without the consent of all shareholders. The court held that the transfer violated pre-emptive rights and the provisions of the Foreign Exchange Regulation Act (FERA). The Swedish company's attempt to transfer shares to Mr. Shah without offering them to existing shareholders was invalid.
3. Compliance with Articles of Association:
The court emphasized the importance of complying with Articles 34 to 40, which provide a mechanism for share transfers, including pre-emptive rights for existing shareholders. The court found that the Swedish company's actions violated these provisions, rendering the transfers invalid.
4. Allegations of Oppression Under Section 397:
The court found that the Swedish group's actions, including the transfer of shares and attempts to terminate the sole selling agency, were oppressive to the Indian group of shareholders. The court noted that these actions aimed to oust the Indian group from the management of the company and circumvent FERA provisions, justifying relief under Section 397.
5. Allegations of Mismanagement Under Section 398:
The court did not find substantial evidence of mismanagement but focused on the oppressive conduct of the Swedish group. The court held that the actions of the Swedish group and Mr. Shah were prejudicial to the interests of the company and its shareholders.
6. Compliance with Foreign Exchange Regulation Act (FERA):
The court highlighted the importance of FERA in regulating foreign equity participation. The Swedish company's attempt to transfer shares to Mr. Shah was seen as an attempt to circumvent FERA provisions, which require dilution of foreign equity to 40%. The court held that this was a matter of public interest and national policy.
7. Validity of Resolutions Passed at the Board Meeting on August 25, 1981:
The court declared the resolutions passed at the board meeting on August 25, 1981, invalid due to the lack of agenda and the absence of Indian group nominees. The resolutions concerning the transfer of shares were found to be in violation of the Articles of Association and FERA.
8. Appointment of a Committee of Management:
The court appointed a committee of management consisting of representatives from both the Indian and Swedish groups, with Dr. Monotosh Mukharji as the chairman. This committee was tasked with managing the company until a new board of directors was elected.
9. Conduct of the Swedish Group and Mr. M.T. Shah:
The court found that the conduct of the Swedish group and Mr. Shah lacked probity and fairness. Their actions were aimed at maintaining control over the company and were oppressive to the Indian group. The court emphasized the need for fair dealing and compliance with legal provisions.
10. Role of the Reserve Bank of India (RBI):
The court noted that the RBI had directed the dilution of foreign equity participation and rejected the Swedish company's proposal to transfer shares to Mr. Shah. The court held that the RBI's directives must be followed, and the Swedish company's actions were in violation of these directives.
Conclusion:
The court declared the resolutions passed on August 25, 1981, void and directed the Swedish company to transfer 9% of its shares to existing shareholders, excluding the Swedish group, at Rs. 150 per share. The court also directed compliance with the Articles of Association for the transfer of 2% shares held by late Mr. Daphtary. A committee of management was appointed to oversee the company's operations until a new board of directors was elected. The court emphasized the need for compliance with FERA and fair dealing among shareholders.
-
1982 (10) TMI 210
Issues:
1. Renewal of restaurant license in a residential building.
2. Violation of principles of natural justice in decision-making process.
Analysis:
Issue 1: The petitioners were running a restaurant in a residential building and had applied for the renewal of their license as required by Section 421 of the Delhi Municipal Corporation Act, 1957. The Corporation had accepted the license fee deposits for previous years, indicating a deemed renewal of the license. However, for the period April 1, 1979, to March 31, 1980, the Corporation refused to accept the license fee and subsequently sealed the premises, citing that running a restaurant in a residential building was impermissible. The court found that the Corporation's decision not to renew the license was in violation of natural justice principles as no opportunity was given to the petitioners to represent their case before the decision was made. The court held that such a decision, made without following the principles of natural justice, would be void.
Issue 2: The primary contention raised in the petition was that the decision not to renew the license was made in violation of principles of natural justice, rendering it liable to be quashed. The court agreed with this contention, emphasizing that when a license is required to conduct business, the refusal to renew or revoke such a license should be preceded by a notice and an opportunity for the affected party to present their case. In this case, the Corporation failed to provide such an opportunity before deciding not to renew the license, leading to the court's decision to quash the decision based on this violation of natural justice principles.
In conclusion, the court ruled in favor of the petitioners, holding that the decision not to renew the restaurant license was void due to the Corporation's failure to adhere to the principles of natural justice. The court directed the Corporation to proceed according to law before making any decision regarding the license renewal in the future. The interim order allowing the petitioners to continue operating their business remained in effect until the Corporation made a fresh decision in compliance with the law.
-
1982 (10) TMI 209
Issues involved: Dispute over possession of property between U.P. State Sugar Corporation Ltd. and an individual named Mool Chand Yadav, contempt of court allegations, suspension of court order pending appeal.
Summary:
The Supreme Court granted special leave in a case involving a dispute over the possession of Hari Bhawan between U.P. State Sugar Corporation Ltd. and Mool Chand Yadav. An injunction was granted against the appellants restraining them from occupying Hari Bhawan. Subsequently, an application was made alleging contempt of court by the Corporation and its officers. The Court suspended the operation of the order directing the appellants to hand over possession of a room to the respondents pending the disposal of the first appeal in the High Court of Allahabad. The Court emphasized the need to avoid a swinging pendulum of possession during the appeal process and ordered both appeals to be heard together expeditiously to resolve the situation. The appeal was disposed of with no order as to costs.
-
1982 (10) TMI 208
Issues:
1. Validity of Government Orders (G.O.) Nos. 646 and 647 withdrawing posts from the purview of the Commission and regularizing services of temporary Government servants.
2. Power of Government to withdraw posts from the purview of the Commission.
3. Legality of regularizing services of temporary Government servants contrary to statutory rules.
Analysis:
1. The case involved a challenge to Government Orders (G.O.) Nos. 646 and 647, which withdrew posts from the purview of the Commission and regularized services of temporary Government servants. The appellants contended that the Government lacked the power to withdraw posts already within the Commission's purview and to regularize services contrary to statutory rules.
2. Regarding the withdrawal of posts from the Commission's purview, the Court held that the Government, under the proviso to Clause (3) of Article 320, had the power to make regulations specifying matters where consultation with the Commission was not necessary. The Court noted that the withdrawal of posts did not create a retrospective effect, and candidates had no inherent right to the posts merely by applying. The Government's decision to withdraw posts was justified to regularize services of temporary employees.
3. Concerning the regularizing of services, the Court found that the Government had the authority to make temporary appointments without the Commission's intervention, as per relevant rules. The Court emphasized that the Government's action to regularize services was in line with the rules and necessary for maintaining peace and harmony in service. The Court rejected the contention that the regularizations were in violation of statutory rules.
4. Despite rejecting the contentions, the Court acknowledged the equity aspect of the case. To ensure justice, the Court directed the Commission to finalize the selection list for Junior Engineer posts based on viva voce tests within two months. The Court ordered that the appellants, if falling within the selection zone, must be appointed before any outsider, irrespective of the department, to the Junior Engineer posts. This decision aimed to address the expectations generated by the advertisement and provide opportunities to the fresh engineering graduates.
-
1982 (10) TMI 207
Issues:
Challenge to order of Government of India dismissing revision petition against confiscation of gold under Gold (Control) Act, 1968.
Detailed Analysis:
1. Seizure of Gold and Show Cause Notice:
The officers of Central Excise seized gold and gold ornaments from the petitioner's shop for contravention of provisions of Gold (Control) Act, 1968. A show cause notice was issued to the petitioner and others alleging contravention of Act's provisions.
2. Deputy Collector's Decision:
After a hearing and examination, the Deputy Collector concluded that the seized items were crude gold ornaments in semi-finished condition. He ordered confiscation of specific gold items and imposed penalties on the petitioner and owners.
3. Appeal to Collector of Central Excise:
The petitioner and owners appealed to the Collector, who found the confiscated gold pieces to be unfit as ornaments for children and constituted primary gold. He confirmed the Deputy Collector's order.
4. Government of India's Decision:
The petitioner and owners filed revision applications to the Government of India, which confirmed the Collector's order but set aside the penalties. They were given an option to redeem the gold on payment of a fine.
5. Writ Petition and Legal Arguments:
The petitioner challenged the decision, arguing that the seized gold was ornaments, not primary gold, based on statutory definitions. However, the authorities found the gold pieces did not meet the criteria of commonly used ornaments.
6. Court's Analysis and Decision:
The court upheld the authorities' findings, stating that unless vitiated by illegality or error, the findings cannot be interfered with. As the gold pieces were deemed primary gold, the confiscation order and fine were legal and valid. The writ petition was dismissed.
7. Conclusion:
The court rejected the writ petition, upholding the decision regarding the confiscation of gold under the Gold (Control) Act, 1968. No costs were awarded in the case.
-
1982 (10) TMI 206
Whether such delay was justified by existence of any exceptional circumstances as required by s. 3 (3) of the COFEPOSA for in the absence of exceptional circumstances delay beyond normal period of five days would be a breach of the constitutional as well as the legislative mandate?
Held that:- In the instant case, for instance, if the alleged exceptional circumstances were communicated to the detenu at the time of the delayed supply of the concerned documents and statements in Urdu language he could have satisfied the superior authority or the Advisory Board that the exceptional circumstances did not really obtain in the case and the delay had vitiated his detention. In other words, what he has done before the Court now, he could have done before the superior authorities or the Advisory Board. In our view, therefore, the impugned failure in this case constitutes another breach of the safeguard contained in Art. 22(5) read with s. 3(3) of the COFEPOSA and vitiates the continued detention of the petitioner.
The documents recovered from three flats in three different societies, include, for instance, documents like bills and vouchers showing purchases made from some shops, while a large number of documents are in Hindi and Gujarati and relate to transactions in contraband articles like gold, silver, watches, etc., and comprise accounts of such transactions, the figures as well as recitals pertaining to which are entirely in Gujarati. All these, in our view, are material documents which have obviously influenced the mind of the detaining authority in arriving at its subjective satisfaction and these are all in a script or language not understood by detenu, and, therefore, the non-supply of Urdu translations of these documents has clearly prejudiced the petitioner in the exercise of his right to make an effective representation against his detention and hence the safeguard contained in Art. 22(5) is clearly violated. Having regard to the above discussion it is clear to us that the continued detention of the petitioner would be illegal and we accordingly quash the same and direct him to be released forthwith. Appeal allowed.
-
1982 (10) TMI 205
The High Court of Madhya Pradesh ruled that ice-cream and ice-candy are not considered cooked food under the M.P. General Sales Tax Act, 1958, based on a previous Full Bench decision. The court stated that the items are not covered by item 8 of Part I of Schedule II. Each party will bear their own costs in this reference.
........
|
9911796707
