|
Advanced Search Options
Case Laws
Showing 1 to 20 of 285 Records
-
1993 (2) TMI 346
Issues Involved:
1. Whether a firm can maintain a writ petition under Article 226 of the Constitution of India.
2. The legal status and capacity of a firm to act as a juristic person.
3. The effect of non-registration of a firm under the Indian Partnership Act, 1932.
Issue-wise Detailed Analysis:
1. Whether a firm can maintain a writ petition under Article 226 of the Constitution of India:
The primary issue addressed in the judgment is whether a firm can maintain a writ petition under Article 226 of the Constitution of India. The court emphasized that only a natural person, juristic person, or corporate entity can approach the court under Article 226. The petitioners failed to disclose whether the firms were registered or unregistered, which is crucial for determining their legal standing. The court held that the submission that firms are persons and thus entitled to maintain the petition was without substance.
2. The legal status and capacity of a firm to act as a juristic person:
The court delved into the nature of a firm under the Indian Partnership Act, 1932, explaining that a partnership is a relationship between persons who have agreed to share the profits of a business. A firm is not a corporation and does not have a separate legal personality distinct from its partners. The Supreme Court in the case of Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. State of Delhi clarified that a corporation is recognized by law as having a distinct personality, which a firm does not satisfy. The court reiterated that a firm is merely a collective name for its partners and does not possess the capacity to act as an individual.
3. The effect of non-registration of a firm under the Indian Partnership Act, 1932:
The court highlighted the implications of non-registration of a firm, referencing Section 69 of the Indian Partnership Act, which restricts an unregistered firm from instituting a suit to enforce a right arising from a contract. The court noted that even if a firm is registered, an individual partner cannot maintain a writ petition in the firm's name; all affected partners must join in the petition. The court cited various judgments, including Dulichand Laxminarayan v. Commissioner of Income Tax, Nagpur, which emphasized that a firm is not a legal entity but a collective name for its partners.
Conclusion:
The court concluded that the writ petitions, as filed in the name of the firms, were incompetent since a firm is neither a natural nor a juristic person. However, in the interest of justice, the court allowed the petitioners an opportunity to amend their petitions within three days to rectify the defects regarding maintainability.
Order:
The petitions were held to be incompetent as they stood but were allowed to be amended within three days to address the maintainability issues.
-
1993 (2) TMI 345
Issues Involved:
1. Role of law courts in cases of corporate fund misappropriation.
2. Admissibility and reliability of witness testimony.
3. Evaluation of evidence and determination of guilt.
4. Sentencing and quantum of punishment.
Issue-Wise Detailed Analysis:
1. Role of Law Courts in Cases of Corporate Fund Misappropriation:
The judgment addresses the dilemma faced by courts when corporate funds are diverted for personal use and criminally misappropriated by management. The court emphasized that justice requires punishing the guilty regardless of the time lapse if legally permissible. The appeal challenged the acquittal of two respondents by a Metropolitan Magistrate in Bombay, despite clear evidence of misappropriation of Rs. 7,00,000 from Turner Morrison and Co. Ltd.
2. Admissibility and Reliability of Witness Testimony:
The key witness, Kashiprasad Kedia, testified about the fraudulent transactions but later disappeared. The court discussed the admissibility of his testimony under Sections 32(3) and 33 of the Evidence Act, supported by previous case law. Despite his absence, the court deemed his initial testimony admissible but approached it with caution. The court noted that the prosecution made reasonable efforts to locate him, and his disappearance did not automatically invalidate his testimony. The court relied on the case of Jose v. State of Kerala, where the Supreme Court held that a witness's evidence could be used substantively if reasonable efforts were made to secure their presence.
3. Evaluation of Evidence and Determination of Guilt:
The court meticulously analyzed the documentary evidence and the testimony of Kashiprasad Kedia. It was established that the amount of Rs. 7,00,000 was channeled through various accounts and ultimately ended up benefiting Mr. Mundhra. Accused No. 1, a Director of Turner Morrison and Co., was found to have orchestrated the diversion of funds through a circuitous route, masking the offense. The court found the explanation provided by Accused No. 1 to be false and incriminating. Accused No. 2, an executive, was acquitted as there was insufficient evidence to prove his conscious involvement in the conspiracy.
4. Sentencing and Quantum of Punishment:
The court convicted Accused No. 1 under Section 406 of the Indian Penal Code for criminal breach of trust and sentenced him to two years of rigorous imprisonment and a fine of Rs. 70,00,000, with a default sentence of nine months. The court emphasized the need for a deterrent sentence to address the serious nature of the offense and the significant financial loss caused to the company. The court granted Accused No. 1 twelve weeks to deposit the fine and stayed the operative part of the order, including the jail sentence, for the same period.
Conclusion:
The judgment highlights the court's role in addressing corporate fund misappropriation, the admissibility of witness testimony despite their absence, the thorough evaluation of evidence to determine guilt, and the imposition of a significant sentence to serve as a deterrent. The conviction and sentencing of Accused No. 1 underscore the seriousness of the offense and the court's commitment to ensuring justice.
-
1993 (2) TMI 344
The Supreme Court set aside the High Court's judgment quashing the prosecution against the respondent for offences under Sections 420, 468, 471, and 120B of the Indian Penal Code. The High Court's exercise of powers under Section 482, Cr.P.C to cut short the criminal trial process was deemed improper. The case will proceed to trial expeditiously. The Court clarified that its observations were limited to the exercise of powers by the High Court and not a determination of the case's merits.
-
1993 (2) TMI 343
Issues Involved:
1. Specific performance of agreements for allotment of flats.
2. Contempt of court for violating an order restraining further allotment of flats.
3. Validity and genuineness of the agreements of sale.
4. Interpretation of the term "allotment" in the court's order.
5. Conduct and compliance of the respondents with court orders.
Detailed Analysis:
1. Specific Performance of Agreements for Allotment of Flats:
The petitioners claimed entitlement to flats being constructed by the respondents based on agreements in their favor. They alleged that the respondents were allotting flats to third parties, thereby defeating their rights.
2. Contempt of Court for Violating an Order Restraining Further Allotment of Flats:
The Supreme Court had issued an order on 1.8.1991 restraining the respondents from making any further allotment of flats. The petitioners filed a Contempt Petition alleging that the respondents violated this order by allotting flats to third parties in January 1992.
3. Validity and Genuineness of the Agreements of Sale:
The respondents claimed that the agreements of sale for the flats were entered into on 26.4.1991, prior to the court's order. The petitioners disputed the genuineness of these agreements, suggesting they could have been fabricated.
4. Interpretation of the Term "Allotment" in the Court's Order:
The respondents argued that "allotment" referred only to the entering into agreements of sale, not the delivery of possession or registration of sale deeds. The court disagreed, interpreting "allotment" to include delivery of possession and registration of sale deeds.
5. Conduct and Compliance of the Respondents with Court Orders:
The court found that the respondents had consistently flouted its orders, showing disregard and disrespect. The respondents' behavior included attempting to transfer the case to another bench and non-cooperation with the Receiver appointed by the court.
Judgment Summary:
The Supreme Court held the respondents in contempt for violating its order dated 1.8.1991, which restrained them from making further allotments of flats. The court interpreted "allotment" to include the delivery of possession and registration of sale deeds, not just the entering into agreements of sale. The court found that the respondents' actions, including delivering possession and registering sale deeds after the order, constituted a brazen violation.
The court rejected the respondents' defense that they misunderstood the order, noting that they did not seek clarification from the court and instead proceeded in a manner that nullified the order. The court also noted the respondents' conduct, including attempts to transfer the case and non-cooperation with the Receiver, as evidence of their disregard for the court's authority.
The court imposed a sentence of one month's imprisonment and a fine of Rs. 2,000 on the second respondent, with additional imprisonment in case of default. The second respondent was also ordered to pay the petitioners' costs assessed at Rs. 5,000.
The second respondent, present in court, was taken into custody to undergo the sentence of imprisonment.
-
1993 (2) TMI 342
Issues Involved:
(a) Whether National Umbrella Factory is a separate and distinct establishment or merely a branch or department of Ebrahim Currim and Sons?
(b) Whether there is a functional integrality between the two units to constitute them as a single composite establishment?
(c) Whether the Respondent No. 1 applied the relevant tests for deciding the above questions, including whether National Umbrella Factory can exist independently if Ebrahim Currim and Sons is closed?
(d) Whether the impugned order suffers from misdirection in law and should be quashed and set aside with liberty to pass a fresh order on remand in accordance with law?
Detailed Analysis:
Issue (a): Separate and Distinct Establishment
The petitioner, a partnership firm engaged in trading activities for about 125 years, set up a factory named National Umbrella in 1940. The factory is registered under the Factories Act and holds separate licenses. The petitioner contends that National Umbrella Factory is a separate establishment and not just a branch or department of Ebrahim Currim and Sons. The factory's manufacturing activities are non-scheduled under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.
Issue (b): Functional Integrality
The Court examined whether there is functional integrality between Ebrahim Currim and Sons and National Umbrella Factory. Functional integrality involves such interdependence that one unit cannot exist conveniently and reasonably without the other. The Supreme Court in Management of Pratap Press, New Delhi v. Secretary, Delhi Press Workers' Union emphasized the importance of functional interdependence and whether the units are kept distinct in matters of finance and employment.
Issue (c): Application of Relevant Tests
The Court noted that Respondent No. 1 failed to apply the relevant tests for determining functional integrality, such as whether National Umbrella Factory can survive independently if Ebrahim Currim and Sons is closed. The Court cited several judgments, including Associated Cement Companies Limited and Kerula Rubber Company Pvt. Ltd., which illustrate the importance of considering factors like unity of ownership, management, control, and the ability of one unit to survive without the other.
Issue (d): Misdirection in Law
The Court found that Respondent No. 1's conclusion that the petitioner was liable to comply with the Act for National Umbrella Factory employees was based on insufficient application of the relevant tests. The impugned order did not adequately consider whether the factory could exist independently of the trading unit. The Court emphasized that mere common ownership or supply of raw materials does not suffice to establish functional integrality.
Conclusion:
The Court set aside the impugned order dated 25th January 1988, and remanded the proceedings to Respondent No. 1 for fresh adjudication. Respondent No. 1 is directed to hold a detailed inquiry, considering all relevant factors and applying the correct tests for functional integrality. The Court also instructed Respondent No. 1 to determine from what date, if any, the petitioner is liable to pay provident funds for National Umbrella Factory employees and whether the liability can be enforced from 1st May 1962, given that the proceedings started in 1985.
The petition succeeds, and the rule is made absolute with no order as to costs. The request for an interim deposit by the petitioner was denied, and all contentions on the main issues remain open for further consideration. The issue of a certified copy is expedited.
-
1993 (2) TMI 341
Issues Involved:
1. Whether it is obligatory to first file an application u/s 438 in the Court of Session before approaching the High Court.
2. The legality of the Registry's practice in returning applications filed u/s 438 on the ground that the Court of Session was not approached first.
3. The interpretation of the concurrent jurisdiction conferred by Section 438 of the Code of Criminal Procedure, 1973.
Summary:
1. Obligation to File Application u/s 438 in the Court of Session First:
The primary issue was whether an application under Section 438 of the Code of Criminal Procedure, 1973, should first be filed in the Court of Session. The Court examined the language of Section 438, which explicitly confers concurrent jurisdiction on both the High Court and the Court of Session for granting anticipatory bail. The provision implies that the affected person has the choice to move either of the two fora. The Court concluded that there is no obligation to approach the Court of Session first, and the High Court can entertain applications under Section 438 directly.
2. Legality of Registry's Practice:
The Registry had been returning applications filed under Section 438 on the ground that the Court of Session was not first approached. The Court found this practice to be illegal, as it contradicts the clear language of Section 438, which does not impose such a requirement. The Court emphasized that the concurrent jurisdiction conferred by the statute cannot be impaired by any restrictive interpretation based on a rule of practice. The existing practice of the Registry was deemed impermissible in law.
3. Interpretation of Concurrent Jurisdiction:
The Court examined the concurrent jurisdiction conferred by Section 438 and concluded that the choice of forum (High Court or Court of Session) is given to the affected person. The Court noted that there is no provision in the Criminal Rules of Practice mandating that the Court of Session should be approached first. Even if such a rule existed, it would not have any legal effect. The Court highlighted that the legislative intent can best be found in the language used in the statute, and any departure from this would be justified only if the literal meaning leads to absurdity or undermines the purpose of the enactment.
The Court also referred to various judgments, including those of the Himachal Pradesh High Court and the Allahabad High Court, which supported the view that a person is not required to move the Sessions Judge first under Section 438. The Court emphasized that any practice contrary to the legislative command cannot be upheld.
Conclusion:
The Court held that it is not obligatory to move the Court of Session first under Section 438. The High Court can entertain applications under Section 438 directly. The existing practice of the Registry in returning such applications was declared illegal. The Court directed the Office to number the petitions if otherwise in order and post them before a learned single Judge for disposal in accordance with law. The valuable assistance rendered by the Amicus Curiae was gratefully acknowledged.
-
1993 (2) TMI 340
Issues Involved:
1. Executability of the Ejectment Decree
2. Validity of the Compromise Decree
3. Satisfaction of Statutory Grounds for Eviction
4. Comparative Hardship
5. Jurisdiction and Nullity of the Decree
Issue-wise Detailed Analysis:
1. Executability of the Ejectment Decree:
The core issue was whether the ejectment decree, based on a compromise, was executable. The trial court had passed an ejectment decree on 21st March 1968, based on a joint compromise petition. The executing court and the lower appellate court dismissed objections to the executability of the decree. However, the High Court found the decree to be a nullity and thus inexecutable.
2. Validity of the Compromise Decree:
The High Court scrutinized the compromise terms and found no express satisfaction of the court regarding the statutory grounds for eviction under Sections 12 or 13 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The High Court held that implied admissions in the decree or other materials on record could be considered to infer the court's satisfaction. The Supreme Court agreed that the satisfaction of the court could be implied from the compromise terms and other materials on record.
3. Satisfaction of Statutory Grounds for Eviction:
The landlord sought possession on grounds of non-payment of rent (Section 12(3)(a)), nuisance, and bona fide personal use (Section 13(1)(g)). The High Court noted that the tenant had admitted arrears of rent but did not explicitly give up the contention of not neglecting to pay. The Supreme Court found that the tenant's admission of arrears in the compromise terms implied a waiver of the plea of tendering rent before the suit. Thus, the statutory ground under Section 12(3)(a) was satisfied.
4. Comparative Hardship:
The High Court held that the landlord had not pleaded comparative hardship in the plaint, which is necessary under Section 13(2) for eviction on the ground of bona fide personal requirement. The Supreme Court clarified that comparative hardship is considered at the stage of the court's satisfaction of the ground for eviction and need not be pleaded in the plaint. The tenant's request for time to vacate implied an admission of the landlord's bona fide requirement and comparative hardship.
5. Jurisdiction and Nullity of the Decree:
The Supreme Court emphasized that a decree is a nullity only if passed by a court lacking inherent jurisdiction. Errors in passing a decree do not render it null and void. The Supreme Court cited precedents (K.K. Chari v. R.M. Sheshadri, Nagindass v. Dalpatram, Roshan Lal v. Madan Lal, and Suleman Noormohammed v. Umarbhai) to support the view that implied admissions and the context of the compromise could suffice for court satisfaction of statutory grounds. The decree was not ultra vires the court's powers and thus was not a nullity.
Conclusion:
The Supreme Court set aside the High Court's judgment, restored the judgments of the lower appellate court and the executing court, and allowed the landlord to execute the decree. The decree was found to be valid and executable based on implied admissions and statutory grounds satisfaction. The appeal was allowed, and the landlord was entitled to costs throughout.
-
1993 (2) TMI 339
Issues Involved:
1. Violation of Articles 14 and 19(1)(g) of the Constitution.
2. Creation of monopoly in favor of handloom industry.
3. Validity of the Handlooms (Reservation of Articles for Production) Act, 1985 in light of the Cotton Textile (Control) Order, 1948.
4. Reasonableness of restrictions imposed by the Act.
5. Adequacy of representation and periodic review by the Advisory Committee.
Detailed Analysis:
1. Violation of Articles 14 and 19(1)(g) of the Constitution:
The petitioners argued that the Act and the impugned order violated Articles 14 and 19(1)(g) of the Constitution. Article 14 ensures equality before the law, and Article 19(1)(g) guarantees the right to practice any profession or carry on any occupation, trade, or business. The court examined whether the Act created a monopoly or imposed unreasonable restrictions.
2. Creation of Monopoly in Favor of Handloom Industry:
The petitioners contended that total reservation of certain textile items for handlooms created a monopoly, citing State of Rajasthan v. Mohan Lal Vyas AIR 1971 SC 2068. The court clarified that no monopoly was created. The reservation aimed to protect the handloom sector, which traditionally manufactured these items, from unequal competition with the powerloom sector. The court noted that the reservation orders had been in place since 1950 and had not hindered the growth of the powerloom sector.
3. Validity of the Handlooms (Reservation of Articles for Production) Act, 1985 in Light of the Cotton Textile (Control) Order, 1948:
The petitioners argued that the Cotton Textile (Control) Order, 1948, and the impugned Act could not operate in the same field. The court examined the relevant legislative entries and concluded that the Handloom Act, traceable to Items 24 and 27 of List II of the 7th Schedule, was distinct from the Cotton Textile Control Order, which dealt with finished products under Entry 33 of List III. The court held that there was no repugnance between the two, as the Handloom Act specifically addressed the protection and development of the handloom industry.
4. Reasonableness of Restrictions Imposed by the Act:
The court assessed whether the restrictions imposed by the Act were reasonable. The Act aimed to protect the handloom weavers, primarily in rural areas, from the powerful mill and powerloom sectors. The court referred to Article 43 of the Constitution, which promotes cottage industries, and found that the restrictions were reasonable and justified. The court also cited Narendra Kumar v. Union of India [1960] 2 SCR 375, emphasizing that even total prohibitions could be upheld if they met the test of reasonableness.
5. Adequacy of Representation and Periodic Review by the Advisory Committee:
The petitioners argued that the Advisory Committee did not meet as required under Rule 3(5), which mandates annual meetings. The court noted that sub-committees had conducted field visits and involved local government representatives. The Advisory Committee had considered various representations before making recommendations. The court found that the interests of the powerloom sector were represented and that periodic reviews were conducted as required.
Conclusion:
The court dismissed the writ petition and connected cases, upholding the validity of the Handlooms (Reservation of Articles for Production) Act, 1985, and the impugned order. The court found that the Act did not violate Articles 14 and 19(1)(g) of the Constitution, did not create a monopoly, and imposed reasonable restrictions in the interest of protecting the handloom industry. The court also confirmed that adequate representation and periodic reviews were conducted by the Advisory Committee.
-
1993 (2) TMI 338
Issues:
1. Appeal against conviction and sentence of accused under Sections 148 and 302 read with 149, I.P.C.
2. Appeal against acquittal of certain accused by the High Court.
3. Special Leave Petitions filed by the State against the judgments.
4. Dismissal of Criminal Misc. Petition under Section 482, Cr.P.C.
5. Examination of evidence and investigation integrity.
Detailed Analysis:
1. The judgment involved the trial of nine accused persons for offenses under Sections 148 and 302 read with 149, I.P.C. in relation to a murder that occurred in a village. The Sessions Judge convicted six accused and acquitted three due to lack of evidence. The convicted individuals filed an appeal in the High Court against their conviction, while the State also appealed against the acquittal of the remaining accused. The High Court acquitted the convicted individuals and dismissed the State's appeal, leading to all accused being acquitted. Subsequently, the State filed Special Leave Petitions in the Supreme Court against the acquittal of certain accused.
2. The Supreme Court examined the reasons for acquittal provided by the High Court and found them to be based on a proper appreciation of evidence. The Court acknowledged the tainted investigation, which affected the reliability of the prosecution's evidence. The prosecution's case relied on witness testimonies and the handling of the first information report (F.I.R.) by the police. The Court highlighted discrepancies in the investigation process, including the delayed registration of the F.I.R. and the questionable preparation of the complaint at the crime scene. Due to these investigative flaws, the Court expressed doubts about the credibility of the evidence presented.
3. The Court emphasized the importance of a lawful and untainted investigation in criminal cases to ensure the reliability of evidence and witness testimonies. The failure to follow proper procedures in recording the F.I.R. and the suspicious circumstances surrounding its preparation raised serious concerns about the integrity of the investigation. The Court noted that the relationship between witnesses and the deceased, while not sufficient on its own to discredit their testimony, coupled with the tainted investigation, cast doubt on the veracity of the evidence presented.
4. After careful consideration of the evidence and the investigative lapses, the Supreme Court upheld the High Court's acquittal of certain accused individuals. The Court found the High Court's findings to be supported by evidence and reasonable, leading to the dismissal of the State's appeal. The judgment highlighted the importance of a fair and transparent investigation process in upholding the principles of justice. Consequently, the State's appeal was rejected, and the acquitted individuals were discharged from their bail bonds.
5. The Court's decision underscored the significance of maintaining the integrity of investigations in criminal cases to ensure the credibility of evidence and uphold the principles of justice. The judgment serves as a reminder of the critical role investigative procedures play in determining the outcome of legal proceedings and safeguarding the rights of the accused and the integrity of the judicial system.
-
1993 (2) TMI 337
Issues Involved:
1. Restoration of the name of the petitioner in the register of members.
2. Allegations of wrongful and fraudulent omission from the register of members.
3. Dispute over the natural guardianship and authority to transfer shares.
4. Jurisdiction of the Company Law Board to decide the matter.
5. Validity of the transfer of shares under Hindu Minority and Guardianship Act, 1956.
6. Applicability of listing guidelines and estoppel against statutory rights.
Detailed Analysis:
1. Restoration of the Name of the Petitioner in the Register of Members:
The petitioner sought restoration of his name in the register of members of the respondent-company as the owner of 22,500 equity shares. The petition was filed under Section 111 of the Companies Act, 1956, by Mr. Hemant Bhutta on behalf of his minor son, Jonas Hemant Bhutta. The petitioner claimed that his name was wrongfully omitted from the register of members in July 1990 and replaced by the name of respondent No. 4, Mrs. Sunita B. Shah.
2. Allegations of Wrongful and Fraudulent Omission from the Register of Members:
The petitioner alleged that the omission of his name from the register was wrongful and fraudulent and that no transfer of shares was authorized by him or his lawful natural guardian. The respondent-company argued that the petition was misconceived, involved highly disputed questions of fact, and should be referred to a civil court. They also claimed that Mr. Hemant Bhutta had made false and misleading statements and had not come with clean hands.
3. Dispute Over the Natural Guardianship and Authority to Transfer Shares:
The core issue revolved around whether Mr. Hemant Bhutta or his wife, Mrs. Vibha H. Bhutta, had the right to act as the natural guardian and transfer the shares. The petitioner cited Sections 6 and 11 of the Hindu Minority and Guardianship Act, 1956, asserting that only the father could act as the natural guardian. Mrs. Vibha H. Bhutta, however, had been acting as the natural guardian and had signed the transfer deeds. The respondents argued that all previous transactions involving the minor's shares were conducted by Mrs. Vibha H. Bhutta, and the petitioner had not objected to this practice earlier.
4. Jurisdiction of the Company Law Board to Decide the Matter:
The respondent No. 4 contended that the Company Law Board lacked jurisdiction to decide the matter in summary proceedings due to the complexity of the issues involved. They argued that the proper forum for resolving the dispute was a civil court, as the principle of guardianship could not be adjudicated by the Company Law Board.
5. Validity of the Transfer of Shares Under Hindu Minority and Guardianship Act, 1956:
The petitioner relied on legal precedents to argue that any transfer of a minor's property by someone other than the father, when the father is alive and not disqualified, is void. The respondents countered that the petitioner had selectively challenged only the transfer of 22,500 shares and not the earlier transfer of 32,000 shares, both of which were signed by Mrs. Vibha H. Bhutta.
6. Applicability of Listing Guidelines and Estoppel Against Statutory Rights:
The petitioner argued that the impugned transfer violated listing guidelines as it was not transacted on the floor of the stock exchange. The respondents maintained that the listing guidelines were not applicable to this transaction. The petitioner also cited judgments to support the plea that there cannot be any estoppel against a statutory right.
Conclusion:
The Board concluded that the dispute primarily concerned the question of natural guardianship and the right to transfer shares, which should be resolved in an appropriate court. The Board noted that all transactions involving the minor's shares were conducted by Mrs. Vibha H. Bhutta as the natural guardian, and the petitioner had not objected to this practice earlier. The Board also observed that there was an inordinate delay in filing the petition without adequate explanation. Consequently, the petition for rectification of the register of members was dismissed.
-
1993 (2) TMI 336
Issues:
1. Rejection of security offered by a third party in a civil suit for attachment before judgment.
2. Interpretation of Order 38, Rules 5 and 6 of the Civil Procedure Code regarding the acceptance of third-party security.
3. Remittance of the matter back to the trial court for reconsideration of the sufficiency of the security offered by the third party.
Detailed Analysis:
The civil revision petition and the civil miscellaneous appeal were filed against the orders passed in a suit and an application for attachment before judgment. The dispute arose when the court rejected the security offered by a third party, leading to the filing of the petitions. The revision petitioners argued that a third party can furnish security as per Order 38, Rules 5 and 6 of the Civil Procedure Code. On the contrary, the respondent contended that the rules do not explicitly permit third-party security. The court was urged to remit the matter back to the trial court for further assessment if the security offered by the third party would be sufficient to discharge any future decree. The judge examined the relevant provisions of Order 38, Rules 5 and 6 of the CPC to determine the legality of rejecting the third-party security. The judge noted that Rule 6 of Order 38 does not specify the nature of security, indicating that third-party security may be permissible. Referring to Form No. 6 in Appendix F of the CPC, the judge concluded that the rejection of third-party security was erroneous. Citing a precedent, the judge supported the acceptance of third-party security. Consequently, the judge decided to remit the matter back to the trial court for a fresh evaluation of the sufficiency of the security offered by the third party to discharge any future decree.
In conclusion, the court allowed both the civil revision petition and the civil miscellaneous appeal, setting aside the lower court's orders. The matters were remitted back to the trial court for reevaluation in accordance with the law and the observations made in the judgment.
-
1993 (2) TMI 335
Issues Involved:
1. Setting aside the ex-parte decree under Order 9 Rule 13 of the Civil Procedure Code (CPC).
2. Application of the Supreme Court's decision in Rafiq v. Munshilal.
3. Conduct and advice of the advocate representing the defendant.
4. The principle of justice concerning the negligence or misdemeanour of an advocate.
Issue-wise Detailed Analysis:
1. Setting aside the ex-parte decree under Order 9 Rule 13 of the Civil Procedure Code (CPC):
The plaintiff filed a suit for ejecting the defendant-tenant on the grounds of default in paying rent and personal use. The suit was posted for final hearing on 9th June 1988, seven years after its institution. The defendant's advocate advised him that he need not be present until the applications under Order 14 Rule 5 and Order 6 Rule 16 CPC were disposed of. Consequently, neither the defendant nor his advocate appeared on 10th June, leading to an ex-parte decree on 13th June 1988. The defendant filed an application to set aside the ex-parte decree, citing the advocate's advice as sufficient cause under Order 9 Rule 13 CPC. The trial court dismissed this application, and the appeal to the Calcutta High Court was initially dismissed but later reopened and allowed based on the principle in Rafiq v. Munshilal.
2. Application of the Supreme Court's decision in Rafiq v. Munshilal:
The High Court reopened and allowed the appeal primarily based on the Supreme Court's decision in Rafiq v. Munshilal, which held that a party should not suffer due to the inaction or misdemeanour of their advocate. The Supreme Court in Rafiq emphasized that under the adversary legal system, the obligation of the party is to select and trust their advocate to handle the proceedings. The High Court applied this principle, considering the defendant's reliance on their advocate's advice.
3. Conduct and advice of the advocate representing the defendant:
The Supreme Court scrutinized the conduct of the defendant's advocate and found several contradictions in his deposition. The advocate had initially requested an adjournment on 9th June 1988 but later advised his client not to participate in the trial. The Division Bench noted the advocate's improper conduct and dereliction of duty, concluding that the story set up by the defendant was a fabrication. The Supreme Court found it difficult to believe that educated businessmen would implicitly trust such advice, knowing the adverse consequences of non-participation in the final hearing.
4. The principle of justice concerning the negligence or misdemeanour of an advocate:
The Supreme Court clarified that while the court may set aside a dismissal order or an ex-parte decree in the interest of justice, there is no absolute rule that a party can disown its advocate at any time and seek relief. The observations in Rafiq must be understood in the context of that specific case and cannot be applied as an absolute proposition. The defendant, being a private limited company managed by educated businessmen, chose to non-cooperate with the court. The Supreme Court concluded that the defendant had no right to ask for the court's indulgence after adopting such a stand.
Conclusion:
For the above reasons, the Supreme Court allowed the appeal, set aside the Division Bench's order dated 3rd March 1992, and restored its order dated 8th July 1991. The defendant-company was ordered to bear the costs of the appellant assessed at Rs. 5,000.
-
1993 (2) TMI 334
Issues Involved:
1. Valuation of shares versus valuation of assets.
2. Procedure followed by the valuers.
3. Independent valuation of properties.
4. Delegation of judicial function.
5. Inclusion of goodwill and tenancy rights in asset valuation.
6. Valuation of the Udyog Nagar plot.
7. Method of share valuation and deduction for capital gains tax.
8. Deduction for restriction on transfer of shares.
9. Interpretation of clause 14 of the settlement.
Detailed Analysis:
1. Valuation of Shares versus Valuation of Assets:
The objection that only assets, and not shares, needed to be valued was dismissed. The court order dated August 9, 1990, explicitly required the valuation of shares of Kidarsons Industries Pvt. Ltd. and its immovable properties. The valuation needed to account for both assets and liabilities, and the objection was deemed misconceived.
2. Procedure Followed by the Valuers:
The court clarified that V. Sankar Aiyar and Co. were appointed as chartered accountants for valuation purposes, not as local commissioners under Order XXVI of the Civil Procedure Code. Therefore, they were not required to give notice or provide an opportunity for oral hearings to the parties. The valuation was based on records maintained by the company, and the objection was rejected.
3. Independent Valuation of Properties:
The valuers accepted the valuations done by other approved valuers close to the relevant date. The MN group had provided these valuations, while the NN group did not offer any counter-suggestions. The court approved the valuation of V. Sankar Aiyar and Co. as correct, and the objection was dismissed.
4. Delegation of Judicial Function:
The court held that the valuation of shares is not a purely judicial function and can be entrusted to an expert like a chartered accountant. The orders dated August 9, 1990, and September 4, 1990, which were not challenged, had become final. Therefore, the objection was considered misconceived and rejected.
5. Inclusion of Goodwill and Tenancy Rights in Asset Valuation:
The valuers did not include the value of goodwill and tenancy rights in the assets. The court agreed with the valuers' reasoning, noting that the company was no longer a viable unit after losing the TSU agency, which constituted 70% of its income. The court also noted that tenancy rights are not owned by the company and are not reflected in its balance sheets. The objection was rejected.
6. Valuation of the Udyog Nagar Plot:
The property was valued at Rs. 40,000. Although the objector argued that this was too low, no alternative value was suggested. The court found no significant impact on the overall valuation of shares and rejected the objection.
7. Method of Share Valuation and Deduction for Capital Gains Tax:
The court directed the valuers to use the value of assets and liabilities for share valuation. The valuers followed this direction and included notional liabilities like capital gains tax and realisation charges. The court found this approach justified and dismissed the objections.
8. Deduction for Restriction on Transfer of Shares:
The valuers made a 20% deduction due to restrictions on the transfer of shares in a private limited company. The court found this deduction well-recognized in law and rules regarding share valuation. The objection was rejected.
9. Interpretation of Clause 14 of the Settlement:
The court interpreted clause 14 as a transitory provision, allowing Narender Nath to continue occupying portions of the Golf Links property until the settlement was fully implemented. The court held that the Golf Links house could not be exclusively allotted to Narender Nath due to its high value and the impracticality of subdividing the property. The objection was rejected, and the court directed the transfer of the Defense Colony property to Narender Nath or his nominees, along with a payment of Rs. 4,45,212 by the company.
Conclusion:
The court rejected all objections raised by the NN group against the report of V. Sankar Aiyar and Co. and accepted the report. The court directed the implementation of the settlement based on the valuers' report, transferring the Defense Colony property to Narender Nath or his nominees and requiring him to vacate the portions of the Golf Links property he occupied. The applications for interim directions were dismissed as they no longer survived.
-
1993 (2) TMI 333
1. ISSUES PRESENTED and CONSIDERED The core legal questions considered in this judgment are: (i) Whether a seat can be earmarked in the Legislature of a State for a representative of a group of religious institutions after its complete merger in India. (ii) Whether seats can be reserved in favor of a particular tribe far in excess of its population. (iii) Whether the provisions for reservation of seats in the Legislative Assembly of Sikkim for Bhutias-Lepchas and Sanghas are unconstitutional as they violate the basic features of democracy and secularism under the Indian Constitution. (iv) Whether the reservation of seats is violative of Articles 14, 15, 325, and 332 of the Constitution. (v) Whether the reservation of seats for Bhutias-Lepchas is ultra vires of clause (f) of Article 371-F. (vi) Whether the reservation of a seat for Sangha, based on religious distinctions, is unconstitutional. 2. ISSUE-WISE DETAILED ANALYSIS (i) Relevant legal framework and precedents: The judgment discusses the historical context of Sikkim's merger with India and the constitutional amendments made to accommodate the unique demographic and political situation of Sikkim. Article 371-F, introduced by the Constitution (Thirty-Sixth Amendment) Act, 1975, provides special provisions for Sikkim. (ii) Court's interpretation and reasoning: The Court examined whether the impugned provisions violated the basic structure of the Constitution, particularly the principles of democracy and secularism. It considered the historical context, the need to protect minority interests, and the unique political situation of Sikkim. (iii) Key evidence and findings: The Court noted the historical agreements and legislative provisions that led to the current reservation system in Sikkim. It emphasized the need to balance representation for different ethnic groups to maintain social stability. (iv) Application of law to facts: The Court applied the principles of constitutional interpretation to determine whether the reservations were justified under Article 371-F and whether they violated fundamental constitutional principles. (v) Treatment of competing arguments: The Court considered arguments regarding the violation of the "one person, one vote" principle and the potential impact on secularism. It also addressed the historical necessity of the reservations to protect minority interests in Sikkim. (vi) Conclusions: The Court concluded that the reservation of seats for Bhutias-Lepchas was justified given the historical context and the need to protect minority interests. However, it found the reservation of a seat for Sangha, based on religious considerations, to be unconstitutional. 3. SIGNIFICANT HOLDINGS The Court held that while the reservation of seats for Bhutias-Lepchas was permissible under Article 371-F, the reservation of a seat for Sangha was unconstitutional as it violated Articles 15(1) and 325 of the Constitution. Core principles established include the recognition of historical and demographic factors in determining the validity of special provisions for newly admitted states, while ensuring that such provisions do not violate the basic features of the Constitution. Final determinations on each issue: - The reservation of seats for Bhutias-Lepchas was upheld as constitutionally valid. - The reservation of a seat for Sangha was struck down as unconstitutional.
-
1993 (2) TMI 332
Issues: Whether gur-lauta, raskat, rab-galawat, and rab-salawat are liable to the levy of market fee under the U.P. Krishi Utpadan Mandi Adhiniyam of 1964.
Summary:
The controversy in the appeals revolved around the classification of gur-lauta, raskat, rab-galawat, and rab-salawat as agricultural produce under the U.P. Krishi Utpadan Mandi Adhiniyam of 1964. The Full Bench of the Allahabad High Court had held that these items were not agricultural produce. The definition of 'agricultural produce' under Section 2(a) of the Act includes items like gur, rab, shakkar, khandsari, and jaggery. The appellants argued that these items, being derived from sugarcane, should be considered agricultural produce. The respondents contended that these items were not agricultural produce as they were derived from molasses, which they argued was not an agricultural product.
The Supreme Court analyzed the definition of 'agricultural produce' under the Act, emphasizing that the inclusion of items like gur and rab indicated a broad interpretation beyond items specified in the Schedule. The Court noted that the Act aimed to benefit both agriculturists and traders by collecting market fees on agricultural produce. It rejected the argument that inferior forms of gur and rab should not be considered agricultural produce, stating that even if not fit for human consumption, they still fell within the definition under the Act.
Referring to previous judgments, the Court highlighted that items produced in mills or factories could still be deemed agricultural produce under the Act. It cited cases where similar items were considered agricultural produce, reinforcing its interpretation. Ultimately, the Court held that gur-lauta, raskat, rab-galawat, and rab-salawat fell within the definition of agricultural produce under the Act and were subject to market fees. The appeals were allowed, the High Court judgments were set aside, and the writ petitions by the respondents were dismissed.
-
1993 (2) TMI 331
Issues involved: Tenancy rights dispute, condonation of delay in filing special leave petitions, effect of dismissal of special leave petitions on civil appeal.
In the present case, the appellant filed an application claiming to be a tenant of certain lands, which was contested by another party leading to multiple revenue cases and subsequent appeals. The Addl. Tahsildar initially accepted the appellant's claim but on appeal, it was held that the ownership belonged to a different party, resulting in the rejection of the appellant's claim. Subsequent revisions and writ petitions were also dismissed by the Revenue Tribunal and High Court respectively.
Regarding the delay in filing special leave petitions challenging the High Court's order, the Supreme Court found no sufficient cause to condone the delay, leading to the dismissal of the special leave petitions as time-barred. This dismissal had a direct impact on the tenability of the Civil Appeal filed by the appellant. The Court noted that since the special leave petitions related to other writ petitions were dismissed, any interference in the Civil Appeal would result in conflicting orders regarding tenancy rights, thus necessitating the dismissal of the Civil Appeal as well.
Ultimately, the Supreme Court dismissed both the special leave petitions and the Civil Appeal due to the lack of grounds for condonation of delay and the potential for conflicting orders on tenancy rights in the disputed lands.
-
1993 (2) TMI 330
Issues:
1. Applicability of Maharashtra Land Revenue Code, 1966 to the land in question.
2. Validity of the non-agricultural assessment rate set by the authorities.
Analysis:
Issue 1:
The petitioner challenged the non-agricultural assessment made under the Maharashtra Land Revenue Code, 1966, arguing that the Code does not apply to the land in question as it falls within the "City of Bombay." The definition of "City of Bombay" under the Bombay General Clauses Act confines it to the area within the local limits of the Bombay High Court's civil jurisdiction before 1945. The land in question was treated as falling outside the City of Bombay by all authorities. As the land did not fall within the defined limits of the City of Bombay, the court held that the Code was applicable to the land situated in village Andheri.
Issue 2:
The petitioner also contested the assessment rate set by the Tahsildar, which was upheld on appeal and revision. The petitioner argued that the revision to &8377; 25/- per 100 sq.mtrs exceeded the limits set by section 116 of the Code for residential purposes. However, the respondent contended that the revision was within the permissible limits as it was based on the revenue payable immediately before the revision. The court found that the revision from &8377; 18/- to &8377; 25/- per 100 sq.mtrs was within the ceiling set by the proviso to section 116, considering the history of revisions and the construction of a new structure on the land. Therefore, the court concluded that there was no justification for interference in the fixation of the assessment rates.
In conclusion, the court dismissed the writ petition, ruling that there was no merit in the petitioner's arguments. The court discharged the rule and made no order as to costs based on the facts and circumstances of the case.
-
1993 (2) TMI 329
Issues involved:
The modification of a scheme regarding the admission of Non-Resident Indian students in professional colleges.
Judgment Summary:
Issue 1: Modification of Admission Scheme
The Supreme Court modified the scheme to allow professional colleges to admit Non-Resident Indian students up to five percent of their total intake for a given year. These students will be admitted on the basis of merit, with the college management judging their merit considering relevant factors. Non-Resident Indian students admitted under this provision are not required to take the entrance examination prescribed for other students. The fees payable by these students will be as prescribed by the Committee mentioned in the scheme.
Issue 2: Admission Process for Non-Resident Indian Students
Non-Resident Indian students can be admitted to professional colleges on payment seats, with five percent of such seats reserved for them. The management of the college will assess the merit of these candidates based on their backgrounds. Non-Resident Indian students can also seek admission to free or payment seats along with other students based on common criteria.
Issue 3: Dismissal of Review Petitions
Subject to the modification regarding Non-Resident Indian student admissions, all review petitions and applications are dismissed by the Supreme Court, with no costs imposed.
-
1993 (2) TMI 328
Issues Involved:
1. Power of the Industrial Tribunal to award relief from a date anterior to the date of raising the dispute.
2. Validity and implications of the demand raised by the Labour Union.
3. Interpretation of prior judicial decisions regarding the Tribunal's power to grant retrospective relief.
Issue-wise Detailed Analysis:
1. Power of the Industrial Tribunal to Award Relief from a Date Anterior to the Date of Raising the Dispute:
The main question in this appeal was whether the Industrial Tribunal had the power to award relief from a date anterior to the date of raising the dispute by the Labour Union. The Tribunal initially awarded relief to the daily-rated workmen from January 1, 1968, despite the dispute being raised on March 19, 1973. The Division Bench of the Bombay High Court held that the Tribunal had no jurisdiction to grant relief from a date prior to the date of raising the dispute, interpreting prior decisions of the Supreme Court to impose such a limitation. However, the Supreme Court disagreed, stating that there was no statutory basis for such a limitation in the Industrial Disputes Act. The Court emphasized that the Tribunal, as a substitute forum to the Civil Court, has broad powers to grant relief, including from an anterior date, if justified by the facts and circumstances of the case.
2. Validity and Implications of the Demand Raised by the Labour Union:
The Labour Union initially raised the demand for dearness allowance on November 2, 1965, seeking parity with monthly-rated employees. This demand was reiterated in a memorandum submitted to the Government on April 26, 1968. The Government referred the dispute to the Industrial Tribunal on July 5, 1968, but this reference was set aside by the Bombay High Court. The Union then raised a fresh demand on March 19, 1973, again seeking the benefit from November 15, 1965. The Supreme Court noted that the demand raised on March 19, 1973, was not a fresh demand but a reiteration of the earlier demand. The Court found no reason why the Tribunal could not grant relief from an earlier date if the demand itself was for such relief and was justified by the facts.
3. Interpretation of Prior Judicial Decisions Regarding the Tribunal's Power to Grant Retrospective Relief:
The respondent-company relied on several Supreme Court decisions to argue that the Tribunal could not grant relief from a date earlier than the date of raising the dispute. The Supreme Court examined these decisions and found that none of them imposed a statutory limitation on the Tribunal's power. The Court clarified that these decisions were context-specific and did not establish a general principle restricting the Tribunal's power. The Court emphasized that the power to grant relief from an anterior date exists and its exercise depends on the facts and circumstances of each case.
Conclusion:
The Supreme Court concluded that the Industrial Tribunal had the power to grant relief from a date anterior to the date of raising the dispute. The Division Bench's interpretation imposing a limitation on the Tribunal's power was incorrect. The appeal was allowed, and the Division Bench's judgment was set aside. The writ petition filed by the Management questioning the Tribunal's award was dismissed. The Tribunal's award granting relief from January 1, 1968, was upheld, and the appeal was allowed without any order as to costs.
-
1993 (2) TMI 327
The Bombay High Court ruled in favor of the assessee regarding the deduction of expenditure made to the Gujarat Electricity Board. However, the Court declined to answer questions regarding other expenditures as they were considered academic due to the passage of time and potential waste of resources.
........
|
9911796707
