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1988 (4) TMI 441
Issues:
1. Setting aside ex parte decree and subsequent applications for review.
2. Allegations of wrong legal advice and application under Section 151 of the Code.
3. Interpretation of "sufficient reason" in Order 47, Rule 1 of the Code.
4. Invocation and scope of inherent powers of the Court.
Analysis:
1. The case involved a partition suit where the petitioner's sister claimed a share in the property. The petitioner failed to appear, resulting in an ex parte decree. Subsequently, the petitioner filed multiple applications through her advocate, seeking to set aside the decree and requesting a new preliminary decree based on a settlement deed. However, due to various misunderstandings and legal missteps, the applications were dismissed, leading to the petitioner's plea for review.
2. The petitioner, citing being illiterate and misled by her former advocate, filed an application under Section 151 of the Code, alleging wrongful advice and seeking to review the previous orders. The Court acknowledged the petitioner's predicament, attributing the confusion to the advocate's erroneous guidance, which led to the dismissal of crucial applications and the subsequent need for review.
3. The Court disagreed with the lower court's interpretation that "sufficient reason" in Order 47, Rule 1 of the Code did not encompass misconceptions of fact or law by an advocate. It emphasized that the Court's inherent powers should be utilized to correct injustices caused by legal misunderstandings or misguidance, especially when a party has been adversely affected by such errors.
4. In exercising its inherent powers, the Court allowed the petitioner's application under Section 151 of the Code, setting aside the order dismissing the Misc. Case and directing the trial judge to proceed with the case. The Court highlighted that the inherent power of the Court should not be restricted by statutory provisions when necessary to rectify legal injustices, ensuring that justice is served and rights are protected, even in complex legal scenarios.
In conclusion, the Court granted the revisional application, emphasizing the importance of upholding justice and correcting legal errors caused by misconceptions or wrongful advice, thereby allowing the petitioner to pursue her case in accordance with the law.
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1988 (4) TMI 440
Issues Involved:
1. Classification of establishments as "commercial consumers" or "non-domestic consumers" for the purpose of enhanced electric tariff.
2. Validity and application of the Government's directive under Section 22-B of the Indian Electricity Act.
3. Jurisdiction and authority of the Kerala State Electricity Board (KSEB) in classifying consumers and levying enhanced tariffs.
4. Specific classification of various establishments such as Churches, Convents, Orphanages, Seminaries, Hospitals, Educational Institutions, Hostels, etc.
Issue-wise Detailed Analysis:
1. Classification of Establishments:
The main question was whether establishments like Churches, Convents, Orphanages, Seminaries, Hospitals, Educational Institutions, and Hostels should be classified as "commercial consumers" liable to pay enhanced electric tariffs or as "non-domestic consumers" paying reduced rates. The petitioners were classified under the LT VI - Non-domestic category by the KSEB's 1985 tariff order, which included various types of non-domestic establishments.
2. Validity and Application of Government's Directive:
The Government of Kerala issued several orders under Section 22-B of the Indian Electricity Act due to power shortages, imposing restrictions and enhanced tariffs on "commercial consumers." The petitioners did not challenge the Board's 1985 tariff order or the Government's directive but contended that their establishments should not be treated as commercial consumers.
3. Jurisdiction and Authority of KSEB:
The court recognized the KSEB's authority to classify consumers and set tariffs. However, it emphasized that the Board must objectively determine whether an establishment is commercial or non-commercial. The Government's power under Section 22-B allows it to make its own classification for tariff purposes, independent of the Board's classification.
4. Specific Classification of Establishments:
- Churches, Temples, Mosques: These are places of worship with a spiritual orientation, not economic activities. They cannot be classified as commercial consumers.
- Convents and Monasteries: These are religious establishments with a focus on spiritual life, not economic activities. They are not commercial consumers.
- Orphanages: Institutions for the care of orphans, not patterned on a commercial basis, and thus not commercial consumers.
- Bishop's House: Primarily a residence for a clergyman with spiritual functions, not a commercial establishment.
- Educational Institutions and Nursing Schools: These involve organized, systematic economic activities and material services to the community. They are correctly classified as commercial consumers.
- Hostels: As part of educational institutions, they take on the same commercial classification.
- Seminaries: Institutions for training clergy, analogous to educational institutions, and thus commercial consumers.
- Hospitals: Provide essential services with systematic economic activities. However, hospitals were exempted from enhanced tariffs due to their essential nature, as previously recognized by the court.
Conclusion:
The court held that the KSEB was wrong in treating Churches, Temples, Mosques, Convents, Monasteries, and Orphanages as commercial consumers. They should be billed at the normal tariff for non-domestic consumers. Educational Institutions, Nursing Schools, Hostels, and Seminaries were correctly classified as commercial consumers. Hospitals, while commercial, should only pay the normal tariff due to their essential service status. The Board was instructed to issue revised bills accordingly and consider reclassification requests from other non-domestic consumers based on the principles stated in the judgment. The judgment also allowed for future reclassification or additional levies by the Government or the Board in accordance with the law.
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1988 (4) TMI 439
Issues Involved:
1. Applicability of Tamil Nadu Shops and Establishments Act, 1947 to Nationalised Banks and State Bank of India.
2. Applicability of Andhra Pradesh Shops and Establishments Act, 1966 to Nationalised Banks.
3. Applicability of Kerala Shops and Commercial Establishments Act, 1960 to Nationalised Banks.
4. Definition and interpretation of "establishments under the Central Government."
Issue-wise Detailed Analysis:
1. Applicability of Tamil Nadu Shops and Establishments Act, 1947 to Nationalised Banks and State Bank of India:
The primary issue was whether the Tamil Nadu Shops Act applied to the Bank of India and State Bank of India. The Bank of India argued that it was exempt under Section 4(1)(c) of the Act, which exempts establishments under the Central Government. The Madras High Court initially accepted this argument, ruling that the Bank of India and State Bank of India were establishments under the Central Government and thus exempt. This decision was challenged, but the Supreme Court upheld the High Court's ruling, stating that due to the deep and pervasive control of the Central Government over these banks, they are indeed establishments under the Central Government.
2. Applicability of Andhra Pradesh Shops and Establishments Act, 1966 to Nationalised Banks:
The case involved employees of Syndicate Bank who were dismissed and subsequently appealed under the Andhra Pradesh Shops Act. The Bank contended that it was exempt under Section 64(1)(b) of the Act, which exempts establishments under the Central Government. The Andhra Pradesh High Court initially ruled against the Bank, but the Supreme Court overturned this decision, emphasizing the deep and pervasive control of the Central Government over nationalised banks, thereby exempting them from the Act.
3. Applicability of Kerala Shops and Commercial Establishments Act, 1960 to Nationalised Banks:
The issue was whether the Kerala Shops Act applied to the Bank of India. The Bank argued that it was exempt under Section 3(1)(c) of the Act, which exempts establishments under the Central Government. The Kerala High Court initially ruled against the Bank, but the Supreme Court overturned this decision, again citing the deep and pervasive control of the Central Government over nationalised banks, thus exempting them from the Act.
4. Definition and interpretation of "establishments under the Central Government":
The Supreme Court analyzed the term "under" in the context of the various Shops Acts. It referred to dictionary meanings and concluded that "under" implies subjugation, regulation, or subordination. The Court examined the statutory provisions governing the State Bank of India and nationalised banks, highlighting the extensive control and supervision exercised by the Central Government. This included the power to appoint directors, control capital structure, issue policy directions, and even liquidate the banks. The Court concluded that the State Bank of India and nationalised banks are establishments under the Central Government due to this deep and pervasive control.
Judgment Summary:
The Supreme Court dismissed the appeals challenging the applicability of the Tamil Nadu Shops Act to the Bank of India and State Bank of India, upholding the Madras High Court's decision. The Court allowed the appeals concerning the Andhra Pradesh Shops Act and Kerala Shops Act, setting aside the judgments of the Andhra Pradesh and Kerala High Courts. The Court ruled that the State Bank of India and nationalised banks are establishments under the Central Government and are exempt from the respective Shops Acts. The employees whose appeals under the Kerala and Andhra Pradesh Shops Acts were dismissed were given the liberty to seek other legal remedies.
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1988 (4) TMI 438
Issues Involved:
1. Petition for winding up under the Companies Act, 1956.
2. Allegations of breach of confidentiality by the bank.
3. Defense and counter-claim by the respondent company.
4. Negligence in servicing loans and issuing bank guarantees.
5. Legal obligations regarding hypothecated goods.
6. Maintainability of the winding-up petition by a secured creditor.
7. Financial viability and substratum of the company.
8. Acknowledgment of liability by the company.
Detailed Analysis:
1. Petition for Winding Up:
The petitioner, a bank, filed a petition under Section 439(1)(b) read with Sections 433(c), (e), and (f) and 434 of the Companies Act, 1956, seeking an order to wind up the respondent company due to its inability to pay debts amounting to Rs. 1,37,12,518.81. The respondent company had ceased business operations since 1984 and failed to repay the loans and credit facilities extended by the petitioner and another bank.
2. Allegations of Breach of Confidentiality:
The respondent company alleged that the petitioner bank breached its duty of confidentiality by leaking information to a rival manufacturer, IDPL, which led to adverse actions by the customs authorities and the Ministry of Chemicals and Fertilisers. The company cited English case law and banking practices to support its claim. However, the court found no prima facie proof of such breach and noted that the allegation was raised for the first time during the proceedings.
3. Defense and Counter-Claim:
The respondent company asserted a counter-claim for damages due to the alleged breach of confidentiality and negligence by the bank. The company contended that the bank's actions led to financial losses and hindered its ability to repay the loans. The court examined whether the defense was genuine or merely a tactic to delay the winding-up proceedings. It concluded that there was no substantial evidence to support the counter-claim and that the defense lacked substance.
4. Negligence in Servicing Loans and Issuing Bank Guarantees:
The company accused the bank of negligence in issuing a bank guarantee in the required format, resulting in the customs authorities refusing to release imported chemicals. The court found that the bank had issued a guarantee, but the customs authorities did not accept it due to format issues. The court held that the bank was not obligated to issue guarantees in specific formats and that the company failed to show any banking practice mandating such compliance.
5. Legal Obligations Regarding Hypothecated Goods:
The company argued that the bank, as the hypothecatee, had an obligation to preserve the value of the hypothecated goods (imported chemicals) and should have sold them to mitigate losses. The court rejected this contention, stating that the bank was not in possession of the goods and had no legal obligation to sell them. The court emphasized that the company retained responsibility for the goods and their clearance from customs.
6. Maintainability of the Winding-Up Petition by a Secured Creditor:
The company challenged the locus standi of the petitioner, a secured creditor, to file a winding-up petition. The court referred to Section 439 of the Companies Act, which explicitly allows secured creditors to present such petitions. The court dismissed the company's argument, affirming the petitioner's right to seek winding up.
7. Financial Viability and Substratum of the Company:
The company claimed that its financial viability was affected by the actions of the banks and that its substratum had not disappeared. The court found that the company had ceased manufacturing activities and was financially unviable. The court noted that no other creditors opposed the winding-up petition, indicating the company's inability to pay its debts.
8. Acknowledgment of Liability by the Company:
The court highlighted a letter from the company acknowledging its liability to the bank and requesting financial assistance for rehabilitation. This acknowledgment undermined the company's contention that certain loans were not due or payable. The court concluded that the company was unable to pay its substantial debts.
Conclusion:
The court overruled the objections of the respondent company and ordered its winding up under the provisions of the Companies Act, 1956. The Official Liquidator was appointed to take charge of the company's assets, books, and records. The petitioner and the second respondent were directed to deposit initial costs for the liquidation process. The court emphasized the need for a winding-up order due to the company's inability to pay its debts and lack of financial viability.
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1988 (4) TMI 437
The Supreme Court substituted an order directing that in cases where notices under Section 11A of the Central Excise and Salt Act have been served but claims do not cover beyond six months, respondents can realize dues. Assistant Collector will decide if there is a dispute on the notice issuance. Respondents can issue notices within six months, and applicants must have eight weeks to make representations. Bank Guarantees can be used for dues, and the Applications for amendment were dismissed.
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1988 (4) TMI 436
Issues:
1. Interpretation of two agreements dated 11th March, 1985, and 19th March, 1983.
2. Validity and enforcement of the arbitration agreement.
3. Revival of the earlier contract dated 19th March, 1983.
4. Compliance with terms of the contract and registration of distributorship.
5. Application of Section 20 of the Arbitration Act, 1940.
Analysis:
Interpretation of Agreements:
The case involved two agreements dated 11th March, 1985, and 19th March, 1983. The court found that the intention of the parties in the 1985 agreement was to supersede the earlier contract. However, the respondent failed to pay the agreed amount of Rs. 6.50 lakhs, leading to the cancellation of the 1985 agreement. The court held that the earlier agreement from 1983 was revived due to the non-payment by the respondent, as evidenced by correspondence and conduct of the parties.
Validity of Arbitration Agreement:
The Division Bench of the High Court confirmed that the arbitration agreement within the 1983 contract was still valid and enforceable. The court emphasized that the existence of a civil suit did not preclude the filing of the arbitration agreement. The court highlighted Section 20 of the Arbitration Act, which provides for the filing of an arbitration agreement before a court, ensuring the parties' rights to arbitration.
Revival of Earlier Contract:
The court determined that the failure to perform the terms of the 1985 contract did not automatically revive the 1983 contract. However, the petitioner's actions and communications indicated a fallback to the original 1983 contract, which was accepted by the respondent. This acceptance led to the revival of the 1983 contract, which contained an arbitration clause.
Compliance and Registration of Distributorship:
The Motion Pictures Association confirmed the registration of the film in the petitioner's name due to the respondent's failure to comply with payment terms. This confirmation was based on the petitioner's reliance on the 1983 contract. The court held that a valid and binding contract existed between the parties, which included the arbitration clause for dispute resolution.
Application of Section 20 of the Arbitration Act:
The court reiterated that the arbitration agreement in the 1983 contract should be filed for proper adjudication of the dispute. The Division Bench upheld the High Court's decision regarding the revival of the 1983 contract and the parties' rights to arbitration. The court dismissed the petition, affirming the correctness of the High Court's decision in the matter.
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1988 (4) TMI 435
Issues Involved:
1. Applicability of Sales Tax to the goods sold.
2. Authority of the Assistant Commissioner, Commercial Taxes, to initiate suo moto revision.
3. Applicability of the Supreme Court decision in Md. Serajuddin v. State of Orissa.
4. Adequacy of steps taken by the plaintiff to dispute Sales Tax liability.
5. Entitlement of the plaintiff to raise a demand for Sales Tax post contract completion.
6. Binding nature of the Order dated November 21, 1977 on the defendant.
7. Plaintiff's entitlement to interest or compensation.
8. Relief entitled to the plaintiff.
Detailed Analysis:
Issue Nos. 1, 2, 3, and 4:
These inter-connected issues were addressed together. The plaintiff initially did not include Sales Tax in the bills, believing the sales were exempt under Section 5(2)(a)(v) of the Bengal Finance (Sales Tax) Act, 1941. Following the Supreme Court's decision in Md. Serajuddin v. State of Orissa, the Assistant Commissioner revised the original assessment, imposing Sales Tax. The plaintiff paid the tax under threat of legal proceedings. The court found the Assistant Commissioner had the authority to revise the assessment, and the plaintiff's acceptance of the revised order and payment did not indicate mala fide intent. Therefore, these issues were resolved in favor of the plaintiff.
Issue No. 6:
The defendant contended that the Order dated November 21, 1977, was not binding. The court noted that the plaintiff's claim was based on Section 64A of the Sale of Goods Act, 1930, which allows recovery of Sales Tax paid by the seller from the buyer. Thus, the binding nature of the order was immaterial, and the issue was resolved in favor of the plaintiff.
Issue No. 5:
The defendant argued that Section 64A of the Sale of Goods Act does not impose an unlimited liability for Sales Tax post-contract completion. The court referenced a Division Bench decision of the Madras High Court, which indicated that the seller's right to recover tax under Section 64A is enforceable. The court concluded that the buyer's liability under Section 64A is not limited to the contract's performance period. Therefore, the defendant could not avoid paying the Sales Tax imposed after the contract's completion, and this issue was resolved in favor of the plaintiff.
Issue No. 7:
The plaintiff sought interest or compensation on the Sales Tax amount. The court denied this claim, noting that the defendant had genuine contentions, and the refusal to pay was not frivolous. Thus, the plaintiff was not entitled to interest or compensation.
Issue No. 8:
The court decreed the plaintiff's suit in part, awarding Rs. 62,021.62 with proportionate costs and 6% per annum interest.
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1988 (4) TMI 434
Issues Involved:
1. Constitutional validity of Sub-section (4) of Section 6 of the U.P. Industrial Disputes Act, 1947.
2. Validity of the Order dated December 5, 1984, passed by the Government of Uttar Pradesh remitting an award for reconsideration.
Summary:
1. Constitutional Validity of Sub-section (4) of Section 6 of the U.P. Industrial Disputes Act, 1947:
The appellant challenged the constitutional validity of Sub-section (4) of Section 6 of the U.P. Industrial Disputes Act, 1947. The Supreme Court analyzed the provisions of the Act and found that Sub-section (4) of Section 6, which allows the State Government to remit an award for reconsideration without providing guidelines or requiring the Government to give reasons or hear the parties, confers wide and arbitrary power on the State Government. The Court observed that such unguided power could be misused, leading to arbitrary decisions, and thus violates Article 14 of the Constitution of India. The Court declared Sub-section (4) of Section 6 unconstitutional and struck it down.
2. Validity of the Order dated December 5, 1984:
The appellant also questioned the validity of the Order dated December 5, 1984, by which the Government of Uttar Pradesh remitted the award passed by the Labour Court, Meerut, for reconsideration. The Supreme Court noted that the State Government did not provide reasons for remitting the award and did not inform the parties about the specific points for reconsideration. The Court held that the order remitting the award was arbitrary and lacked justification, especially since the Labour Court had already provided a detailed award after considering all evidence. Consequently, the Court set aside the Order dated December 5, 1984, and directed the State Government to publish the original award under Section 6(3) of the Act.
Conclusion:
The appeal was allowed, Sub-section (4) of Section 6 was declared unconstitutional, and the order remitting the award was set aside. The State Government was directed to publish the original award, and the parties were allowed to pursue any legal remedies available to them post-publication. There was no order as to costs.
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1988 (4) TMI 433
Issues Involved:
1. Constitutional validity of the Swadeshi Cotton Mills Limited (Acquisition and Transfer of Undertakings) Act, 1986.
2. Compensation for the acquisition of shares.
3. Public purpose of the acquisition.
4. Petitioners' locus standi to challenge the Act.
Summary:
1. Constitutional Validity of the Act:
The petition challenged the constitutional validity of the Swadeshi Cotton Mills Limited (Acquisition and Transfer of Undertakings) Act, 1986, under Article 32 of the Constitution. The petitioners contended that the Act amounted to the confiscation of shares without compensation and imposed liabilities without corresponding assets. The Court referred to its previous judgment in M/s Doypack Systems Pvt. Ltd. v. Union of India, which upheld the vesting of shares and immovable properties in the Central Government and National Textile Corporation (NTC) u/s 3 and 4 of the Act.
2. Compensation for the Acquisition of Shares:
The petitioners argued that the acquisition took away valuable assets without paying any compensation, violating Articles 14 and 19(1)(g) of the Constitution. The Court reiterated that compensation was provided in lump sum u/s 8 of the Act, and it was not calculated as the total value of individual assets but as a whole for the undertakings. The Court cited its previous judgment, noting that the net wealth of the company was negative at the time of takeover, justifying the lump sum compensation.
3. Public Purpose of the Acquisition:
The petitioners claimed that the acquisition lacked a public purpose, as the undertakings produced neither cloth nor yarn, contrary to the preamble of the Act. The Court held that the public purpose was served by ensuring the continued manufacture, production, and distribution of cloth and yarn, which were vital to the country. The Court emphasized that the acquisition aimed to subserve the interests of the general public and secure the principles specified in clauses (b) and (c) of Article 39 of the Constitution.
4. Petitioners' Locus Standi:
The petitioners, as shareholders of Swadeshi Cotton Mills, claimed an interest in the business and properties of the company. They argued that the acquisition damaged their rights as shareholders. The Court, however, found that the petitioners' contentions were not tenable, as the issues had been addressed in the previous judgment. The Court emphasized that the law declared in M/s Doypack Systems Pvt. Ltd. was binding on the petitioners u/s 141 of the Constitution.
Conclusion:
The Supreme Court dismissed the petition, holding that the Act was constitutionally valid, provided for compensation, served a public purpose, and that the petitioners' contentions were no longer open for agitation. The Court reiterated that the acquisition was necessary to ensure the principles of Article 39(b) and (c) and to prevent the company from reaping the fruits of its mismanagement.
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1988 (4) TMI 432
Issues Involved:
1. Revocation of special leave.
2. Validity of transfer order violating Articles 14 and 21.
3. Competence of High Court Judge to try the case.
4. Right of appeal under the Criminal Procedure Code.
5. Speedy trial and Article 14.
6. Heinousness of crime and applicability of Articles 14 and 21.
7. Binding precedent and per incuriam decisions.
8. Remedy for the accused without personal hearing.
9. Appointment of High Court Judge as Special Judge.
10. Liberal interpretation of Article 21.
11. Judicial discipline and reference to larger benches.
12. Effect of unconstitutional proceedings.
Summary:
1. Revocation of Special Leave:
The Court considered the application for revocation of special leave but found no grounds to revoke the special leave already granted.
2. Validity of Transfer Order Violating Articles 14 and 21:
The Court addressed whether an order of transfer of a criminal case, which purportedly violates Articles 14 and 21, can be questioned by an independent petition. It was noted that a review petition is not an adequate remedy as it does not allow for a personal hearing at the admission stage.
3. Competence of High Court Judge to Try the Case:
The Court discussed whether a High Court Judge, who is not a Special Judge appointed u/s 6 of the Criminal Law Amendment Act, 1952, can try the case. It was highlighted that trial by a Special Judge is a sine qua non for a trial under the Act, and a transfer order by the Supreme Court cannot substitute the appointment by the State Government.
4. Right of Appeal Under the Criminal Procedure Code:
The Court examined if the accused has a remedy by way of appeal as of right under the Criminal Procedure Code. It was noted that denial of an appeal as of right might violate Articles 14 and 21.
5. Speedy Trial and Article 14:
The Court considered whether transferring the case to the High Court for speedy disposal violates the principle laid down in Anwar Ali Sarkar's case, thereby resulting in a violation of Article 14.
6. Heinousness of Crime and Applicability of Articles 14 and 21:
The Court questioned if the degree of heinousness of the crime or the status of the accused affects the applicability or construction of Articles 14 and 21.
7. Binding Precedent and Per Incuriam Decisions:
The Court deliberated whether a decision given per incuriam, without considering appropriate legal provisions, can be treated as a binding precedent.
8. Remedy for the Accused Without Personal Hearing:
The Court discussed the accused's right to raise objections to the trial without being heard personally, especially when a review petition is of a restricted character.
9. Appointment of High Court Judge as Special Judge:
The Court considered if the High Court could request the State Government to appoint a High Court Judge as a Special Judge to comply with the Supreme Court's transfer order and the Criminal Law Amendment Act, 1952.
10. Liberal Interpretation of Article 21:
The Court noted the recent liberal interpretation of Article 21 and its applicability to persons accused of criminal offenses.
11. Judicial Discipline and Reference to Larger Benches:
The Court addressed the issue of judicial discipline and the practice of smaller benches referring cases to larger benches when they disagree with earlier decisions.
12. Effect of Unconstitutional Proceedings:
The Court contemplated the effect of a decision declaring the proceedings before the High Court unconstitutional on all subsequent proceedings and decisions.
The Court ultimately decided to refer the case to a larger bench of 7 Judges for further consideration, emphasizing the need for an expeditious trial and rejecting the prayer for vacating the stay.
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1988 (4) TMI 431
Issues Involved:
1. Conviction u/s 302 IPC for murder.
2. Conviction u/s 392 IPC for robbery.
3. Conviction u/s 449 IPC for house trespass.
4. Conviction u/s 212 IPC for harboring the offender.
5. Conviction u/s 411 IPC for dishonestly receiving stolen property.
6. Credibility of witness PW 18.
7. Admissibility of newspaper reports as evidence.
8. Recovery of stolen money.
Summary:
1. Conviction u/s 302 IPC for murder:
Appellant No. 1, Laxmi Raj Shetty, was sentenced to death for the murder of the deceased P.N. Gnanasambandam, Acting Manager of the Karnataka Bank, Main Branch, Madras. The prosecution established that the deceased was last seen alive by PW 18 Smt. Kanaka around 9 p.m. on May 20, 1983. The evidence showed that the accused had the opportunity to commit the crime and was seen leaving the Bank premises with stolen money.
2. Conviction u/s 392 IPC for robbery:
Laxmi Raj Shetty was also convicted for robbing Rs. 13,97,900 from the Bank's strong room. The prosecution established that the accused had knowledge of the strong room's double locking system and the cash balance, which facilitated the robbery. The recovery of Rs. 12,32,000 bearing the Bank seal from the accused further corroborated the robbery charge.
3. Conviction u/s 449 IPC for house trespass:
The accused was found guilty of house trespass with the intent to commit robbery and murder. The evidence showed that he had entered the Bank premises after hours, committed the murder, and robbed the strong room.
4. Conviction u/s 212 IPC for harboring the offender:
Appellant No. 2, Shivaram Shetty, was convicted for harboring his son, Laxmi Raj Shetty, knowing that he had committed the murder and robbery. The prosecution proved that Shivaram Shetty retained possession of Rs. 12,27,500 knowing it to be stolen.
5. Conviction u/s 411 IPC for dishonestly receiving stolen property:
Shivaram Shetty was also convicted for dishonestly retaining Rs. 12,27,500 knowing it to be stolen. The recovery of the stolen amount from his possession was a key piece of evidence.
6. Credibility of witness PW 18:
The Court found PW 18 Smt. Kanaka to be a credible witness. Her testimony that she saw the accused leaving the Bank premises on the night of the crime was corroborated by other evidence, including the purchase of a suitcase and skybag from Burma Bazar and the accused's stay at Hotel Chola Sheraton.
7. Admissibility of newspaper reports as evidence:
The Court held that newspaper reports are hearsay and inadmissible as evidence unless the reporters are examined in Court. The defense failed to produce the reporters to substantiate the news items claiming the recovery of stolen money from Mangalore.
8. Recovery of stolen money:
The prosecution established the recovery of Rs. 4,500 from Laxmi Raj Shetty and Rs. 12,27,500 from Shivaram Shetty at Madras. The Court dismissed the defense's argument based on newspaper reports and the testimony of PW 9 Govindaraj, affirming the credibility of the recovery evidence.
Conclusion:
The Supreme Court upheld the convictions and sentences passed by the Additional Sessions Judge and affirmed by the High Court, with a modification commuting the death sentence of Laxmi Raj Shetty to life imprisonment due to the absence of premeditation and the use of makeshift weapons. The appeal was dismissed, and the sentences were ordered to run concurrently.
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1988 (4) TMI 430
Issues Involved:
The judgment addresses serious allegations of murder by torture against the police, mishandling of investigation, and the need for an independent inquiry.
Allegations and Investigation:
The case involves the death of Gopi Ram, a tonga driver, allegedly due to police brutality. The police officers involved were accused of beating Gopi Ram and another individual, Sudesh Kumar, resulting in Gopi Ram's death in police custody. Despite complaints and a case being registered, no action was taken against the accused officers. The High Court dismissed a writ petition seeking transfer of the investigation to the Central Bureau of Investigation (CBI).
Court Findings and Observations:
The Supreme Court found that the police investigation was not conducted impartially and there were attempts to shield the guilty officers. The Additional Sessions Judge noted discrepancies in the investigation, including the hasty conversion of charges without waiting for the postmortem report. The Court agreed with the Sessions Judge's assessment that the case indicated deliberate murder in police custody and a biased investigation.
Decision and Directions:
In the interest of justice, the Supreme Court ordered a fresh investigation by an independent authority, specifically directing the Central Bureau of Investigation (CBI) to conduct a thorough inquiry. The trial court was instructed to utilize its powers under Section 173(8) of the Criminal Procedure Code to ensure a proper investigation. The CBI was tasked with submitting an additional charge sheet if necessary, following an independent and objective investigation.
Conclusion:
The appeal was disposed of with the directive for a new investigation by the CBI to uncover the truth behind the alleged police brutality and murder, emphasizing the importance of impartiality and justice in such cases.
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1988 (4) TMI 429
Whether the High Court was right in dismissing the application under Section 20?
Held that:- In view of the well-settled principles we are of the view that it will be entirely a wrong to mix-up the two aspects, namely, whether there was any valid claim for reference under Section 20 of the Act and, secondly, whether the claim to be adjudicated by the arbitrator, was barred by lapse of time. The second is a matter which the arbitrator would decide unless, however, if on admitted facts a claim is found at the time of making an Order under Section 20 of the Arbitration Act, to be barred by limitation. In order to be entitled to ask for a reference under Section 20 of the Act, there must be an entitlement to money and a difference or dispute in respect of the same. It is true that on completion of the work, right to get payment would normally arise and it is also true that on settlement of the final bill, the right to get further payment gets weakened but the claim subsists and whether it does subsist, is a matter which is arbitrable. In this case the claim for reference was made within three years commencing from April 16, 1976 and the application was filed on December 18, 1976. We are, therefore, of the view that the High Court was right in this case
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1988 (4) TMI 428
Issues:
1. Challenge to the validity of provisions in the Rajasthan Sales Tax Act and Rules.
2. Request to bring into force the provisions of section 22B of the Act.
3. Interpretation of section 22A in relation to goods in transit.
4. Comparison with previous Supreme Court decisions on similar provisions.
5. Consideration of mandamus for enforcing section 22B of the Act.
Analysis:
The petitioner, a transport corporation, challenged the validity of section 22A of the Rajasthan Sales Tax Act and rules 61 to 63 of the Rajasthan Sales Tax Rules. The petitioner also sought a writ to direct the State of Rajasthan to enforce section 22B of the Act. Previous judgments by the High Court and Supreme Court upheld the validity of the provisions in question. The Supreme Court rulings in Indian Roadways Corporation v. State of Rajasthan and Sanjay Transport Corporation v. State of Rajasthan supported the enforcement of section 22A and related rules, despite section 22B not being in force in Rajasthan. The Court rejected the petitioner's argument that section 22B was essential for dealing with goods in transit, emphasizing that section 22A specifically pertains to the inspection of goods in transit.
Regarding the comparison with earlier Supreme Court decisions like Sodhi Transport Co. v. State of U.P., the Court found them irrelevant to the present case as they did not directly apply to the provisions of section 22A. The Court distinguished cases like Check Post Officer, Coimbatore v. K.P. Abdulla and Bros. and Hansraj Bagrecha v. State of Bihar, which dealt with different statutory provisions. The Court concluded that the previous decisions cited by the petitioner did not impact the validity of section 22A of the Act.
The Court addressed the petitioner's plea to mandate the enforcement of section 22B of the Act. Citing the Supreme Court's ruling in A.K. Roy v. Union of India, the Court explained that a writ of mandamus cannot compel the State to implement a particular provision of an Act. Therefore, the Court dismissed the writ petition challenging the validity of the provisions in question and declined to issue any costs. The judgment affirmed the legality of section 22A and related rules, emphasizing their applicability to goods in transit despite the non-enforcement of section 22B.
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1988 (4) TMI 427
Issues Involved:
1. Reassessment of turnover for the assessment year 1973-74.
2. Addition of turnover based on patties and slips provided by a third party.
3. Examination of additional evidence and opportunity for cross-examination.
4. Addition of specific amounts based on inspections and third-party information for the assessment year 1975-76.
5. Exemption claim for sales of chemical fertilizers.
6. Levy of penalty for the assessment year 1973-74.
Issue-wise Detailed Analysis:
1. Reassessment of turnover for the assessment year 1973-74:
The reassessment proceedings were initiated based on incriminating material found during a search by the Income-tax Department and additional information provided by a third party. The Commercial Tax Officer added a further turnover of Rs. 1,24,428, which was partially upheld by the Tribunal. The Tribunal confirmed the addition of Rs. 52,906.92 and reduced the assessable turnover by Rs. 29,109.70. The High Court upheld the Tribunal's finding, stating it was based on ample evidence and could not be interfered with.
2. Addition of turnover based on patties and slips provided by a third party:
The Tribunal added Rs. 52,906.92 to the turnover based on patties sent by Sri Satti Suri Reddy. The assessee contended that some transactions covered by genuine patties were duly accounted for, and the Tribunal should have remanded the matter for verification. The High Court rejected this contention, stating the Tribunal's finding was based on circumstantial evidence, including the letterheads and signatures on the patties, which matched those in the assessee's accounts.
3. Examination of additional evidence and opportunity for cross-examination:
The assessee argued that they were denied an opportunity to cross-examine Sri Satti Suri Reddy, who had died before the show cause notice was issued. The High Court held that the statement of the deceased was admissible as evidence and that the assessee had the opportunity to rebut it but failed to do so. The Court also found no violation of natural justice principles.
4. Addition of specific amounts based on inspections and third-party information for the assessment year 1975-76:
The Tribunal upheld the addition of Rs. 72,528.96, which included amounts based on an inspection and slips provided by Sri Satti Suri Reddy and the Income-tax Department. The High Court found the Tribunal's findings to be supported by evidence and rejected the assessee's contentions. The Court also upheld the addition of Rs. 14,014 based on an inspection, noting that the assessee had compounded the offence and admitted the transactions.
5. Exemption claim for sales of chemical fertilizers:
The assessee claimed exemption for Rs. 2,28,687, arguing that the Fertiliser Corporation of India (FCI) was the first seller in the State. The Tribunal found that the transactions were inter-State sales, with FCI collecting Central sales tax from the assessee. The High Court agreed, stating that the documents of title were endorsed in favor of the assessee, making them the first seller in the State.
6. Levy of penalty for the assessment year 1973-74:
The penalty was initially set at Rs. 32,485 but was reduced to Rs. 12,994 by the Assistant Commissioner and further to Rs. 4,970 by the Tribunal. The High Court upheld the penalty, stating it was justified based on the suppression of turnover found by the Tribunal.
Conclusion:
The High Court dismissed all three tax revision cases filed by the assessee, upholding the Tribunal's findings and confirming the reassessment of turnover, additions based on patties and slips, denial of exemption for chemical fertilizers, and the levy of penalty. The Court found no errors of law or violations of natural justice principles in the Tribunal's decisions.
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1988 (4) TMI 426
Dispute between the parties is in regard to a flat in a building on Lord Sinha Road, Calcutta - Held that:- As in the interest of justice the prayer made on behalf of the plaintiff before the High Court after the disposal of the appeal for remand and retrial of the suit is fit to be allowed. As nobody is disputing this position before us, we do not consider it necessary to further deal with this aspect. In view of the prayer made by the plaintiff in the High Court and in Civil Appeal No. 4145 of 1986 before this Court and the concession of the defendant no. 3 before us, we hold that the suit should be sent back to the learned Single Judge for retrial.
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1988 (4) TMI 425
The High Court of Andhra Pradesh dismissed a writ petition seeking exemption from sales tax on tarpaulins, canvas cloth, and waterproof cloth, stating that the matter should be decided by tax authorities under the Act. The petition was deemed an abuse of process and aimed to obstruct the functioning of the Tribunal. The petitioner was directed to pay interest on the tax amount from the date it would have been levied.
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1988 (4) TMI 424
Issues Involved:
1. Maintainability of the appeal without the deposit of admitted tax.
2. Interpretation of Section 9 of the U.P. Sales Tax Act before and after its amendment.
3. The legal effect of depositing the full tax during the pendency of the appeal.
Issue-wise Detailed Analysis:
1. Maintainability of the appeal without the deposit of admitted tax:
The assessee did not admit any tax liability on the turnover of imported kerosene oil during the assessment proceedings. The Assistant Commissioner dismissed the appeal on the preliminary ground of non-payment of admitted tax, a condition precedent for the maintainability of the appeal. The Tribunal upheld this dismissal, relying on the fact that the assessee had disclosed the turnover but had not admitted any tax liability. The Tribunal's decision was based on the interpretation that the admitted liability included the amount legally due, not just the amount admitted by the assessee.
2. Interpretation of Section 9 of the U.P. Sales Tax Act before and after its amendment:
Section 9 before amendment required satisfactory proof of payment of the amount of tax admitted by the appellant to be due. After the amendment, the provision required payment of the amount of tax found due under the Act. The court noted that the assessment and the filing of the appeal occurred before the amendment in 1971. The right of appeal is a substantive right and should be considered based on the law as it stood before the amendment. The court referred to the Supreme Court's decision in Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh, which held that an amendment placing a substantial restriction on the right of appeal does not affect proceedings initiated before the amendment.
3. The legal effect of depositing the full tax during the pendency of the appeal:
The assessee contended that the full tax was deposited while the appeal was still pending before the Assistant Commissioner, and therefore, the appeal should not have been dismissed without considering whether there was sufficient cause for the delay in making the deposit. The Tribunal rejected this contention, stating that the appeal's maintainability was irretrievably impaired due to the failure to deposit the admitted tax in time. However, the court disagreed, citing the Supreme Court's decision in Lalta Prasad Khinni Lal v. Assistant Commissioner (Judicial), Sales Tax, which held that an appeal could be entertained when proof of payment of admitted tax is furnished, subject to the condonation of delay by the appellate authority.
Conclusion:
The court found that the Tribunal's decision on the maintainability of the appeal was contrary to the law laid down in Commissioner of Sales Tax, U.P. v. Mangala Emporium, which held that the appeal is maintainable if no tax liability is factually admitted before the assessing officer. The Tribunal's reliance on Kanpur Vanaspati Stores was misplaced, as the decision supported the assessee's case. The court also held that the Tribunal's reasoning regarding the alternative contention was incorrect, as the appeal became entertainable upon the deposit of the full tax, and the assessee was entitled to seek condonation of delay under Section 9(6) of the Act.
Order:
The revision was allowed with costs, and the Tribunal was directed to pass an appropriate consequential order under Section 11(8) of the Act.
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1988 (4) TMI 423
Issues Involved:
1. Whether the sale of gold laces, gold braids, and gold jhallars to the President of India through the Secretary was rightly held as an inter-State sale under Section 3(a) of the Central Sales Tax Act, 1956.
2. Whether the movement of goods was a result of a covenant or incident of the contract of sale.
3. The relevance of the mode of transportation in determining the nature of the sale.
4. The applicability of case laws such as Tata Iron and Steel Co. Ltd. v. S.R. Sarkar, Balabhagas Hulaschand v. State of Orissa, and K.G. Khosla and Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes.
Detailed Analysis:
1. Inter-State Sale Under Section 3(a) of the Central Sales Tax Act, 1956:
The primary issue was whether the sale of gold laces, gold braids, and gold jhallars to the President of India through the Secretary was an inter-State sale as defined under Section 3(a) of the Central Sales Tax Act, 1956. The section states that a sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase occasions the movement of goods from one State to another. The court examined the agreement and found that the movement of goods from the assessee's state to New Delhi was indeed a result of the contract of sale, thus qualifying it as an inter-State sale.
2. Movement of Goods as a Result of Covenant or Incident of Contract of Sale:
The court analyzed whether the movement of goods was due to a covenant or an incident of the contract of sale. The agreement specified that the goods were to be delivered within two months of receiving the order and were subject to approval by the Secretary to the President. The court concluded that the movement of goods was indeed pursuant to the agreement, as the assessee personally carried the goods to Rashtrapati Bhawan, New Delhi, to fulfill the contractual obligation. The court rejected the hypothetical argument that the goods could have been diverted for other purposes, emphasizing that the delivery was intended for the buyer as per the contract.
3. Mode of Transportation and Its Relevance:
The assessee argued that since the goods were personally carried and not dispatched by rail or other means in the buyer's name, it could not be considered an inter-State sale. The court dismissed this argument, stating that the decisive factor was whether the goods were moved in accordance with the contract terms, not the mode of transportation. The court highlighted that the movement of goods was a result of the contractual obligation, irrespective of how they were transported.
4. Applicability of Case Laws:
The court referenced several case laws to support its judgment:
- Tata Iron and Steel Co. Ltd. v. S.R. Sarkar: The Supreme Court held that a sale occasions the movement of goods from one State to another when the movement is a result of a covenant or incident of the contract of sale.
- Balabhagas Hulaschand v. State of Orissa: The court noted that an agreement to sell, even if the property did not pass, is an element of sale under Section 3(a). The Supreme Court's observation that goods move normally in pursuance of a contract between two parties supported the conclusion that the movement of goods in this case was pursuant to the contract.
- K.G. Khosla and Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes: The court found this case particularly relevant, where the Supreme Court held that the movement of goods from Belgium to India was in pursuance of the contract conditions, even though the goods were not consigned in the buyer's name.
The court also referenced Oil India Ltd. v. Superintendent of Taxes, where it was held that the inter-State movement need not be specified in the contract itself but must be incidental to the contract of sale.
Conclusion:
The court upheld the view of the Appellate Tribunal, affirming the concurrent findings of the Sales Tax Officer and the Assistant Commissioner (Judicial). The revision was dismissed, and it was concluded that the sale of goods to the President of India through the Secretary was rightly held as an inter-State sale under Section 3(a) of the Central Sales Tax Act, 1956. The movement of goods was indeed a result of a covenant or incident of the contract of sale, and the mode of transportation did not alter this conclusion. The court's decision was supported by relevant case laws, and the petition was dismissed with no order as to costs.
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1988 (4) TMI 422
Issues:
Petition for directing disposal of petition dated 27th April, 1981 in accordance with law - Quashing order of first respondent dated 3rd August, 1981 and directing disposal of petition dated 27th April, 1981 - Levying penalty for delay in filing annual return - Rectification under section 55 of Tamil Nadu General Sales Tax Act, 1959 - Error apparent on the face of the record - Coercive steps for penalty arrears - Recovery proceedings initiated - Necessity of rectification - Availability of remedies - Ignorance of law - Legal formalities observed in assessments and revisions.
Analysis:
The petitioners sought a direction to dispose of their petition dated 27th April, 1981 in accordance with the law, challenging the order of the first respondent dated 3rd August, 1981. The petitioners were assessees on the files of the Deputy Commercial Tax Officer and faced penalties for delay in filing annual returns for the years 1972-73 and 1973-74. Despite modifications by the first respondent, the petitioners failed to pay the penalties due to financial constraints, leading to coercive recovery proceedings. The petitioners invoked section 55 of the Act for rectification, arguing that penalties were levied without proper assessment. However, the court emphasized that rectification is for errors apparent on the face of the record and not for matters that could have been appealed or revised. The court highlighted the importance of exhausting available remedies before seeking rectification under section 55, dismissing the petitioners' claim due to the absence of any such prior actions.
The respondents contended that no rectification was necessary as there was no apparent error in the records. They argued that the penalties were imposed following legal formalities and that coercive steps for penalty arrears were justified. The court concurred, stating that rectification is limited to clerical or typing errors and cannot be used to challenge orders that could have been appealed or revised. The court rejected the petitioners' argument, emphasizing the need to follow proper legal procedures and exhaust available remedies before resorting to rectification under section 55. Ignorance of the law was deemed not a valid excuse, and the court found no merit in the petition, ultimately dismissing it without costs.
In conclusion, the judgment underscores the importance of adhering to legal procedures and exhausting available remedies before seeking rectification under section 55 of the Act. It clarifies that rectification is not a substitute for appeals or revisions and is limited to correcting clerical errors. The court's decision highlights the significance of timely and appropriate legal actions in addressing grievances related to tax assessments and penalties, emphasizing the need for compliance with statutory provisions and due process.
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