|
Advanced Search Options
Case Laws
Showing 1 to 20 of 243 Records
-
1993 (4) TMI 339
Issues Involved:
1. Legality and validity of the judgment and decree passed in Civil Suit No. 1007 of 1973.
2. Execution and authenticity of the promissory note.
3. Applicability of Section 126 of the Indian Evidence Act, 1872, regarding privileged communication.
Detailed Analysis:
1. Legality and Validity of the Judgment and Decree:
The appellant challenged the judgment and decree passed by the City Civil Court, Ahmedabad, in favor of the respondent (original plaintiff) under Section 96 of the Code of Civil Procedure. The trial court had ruled that the defendant executed the questioned promissory note and was liable to pay the amount with interest at 6% per annum. However, upon examination, the High Court found that the trial court's observations regarding the execution of the promissory note were not proper and sustainable. The trial court had erred in appreciating the evidence on record.
2. Execution and Authenticity of the Promissory Note:
The plaintiff claimed Rs. 5,350 based on a promissory note allegedly executed by the defendant on 16-8-1972. The defendant contended that he had not executed the promissory note and alleged forgery by the plaintiff, who reused signed revenue stamps from a satisfied promissory note. The High Court found that the four revenue stamps on the questioned promissory note were affixed after the defendant's earlier signature, indicating reuse. The evidence, including the testimony of the defendant and advocate Mr. Giriani, supported the defendant's claim that the promissory note was not genuine. The High Court concluded that the plaintiff failed to prove the execution of the promissory note, and the defendant successfully showed its lack of authenticity.
3. Applicability of Section 126 of the Indian Evidence Act, 1872:
The evidence of advocate Mr. Giriani, who testified that the promissory note was blank with reused revenue stamps when shown to him by the plaintiff, was crucial. The High Court examined whether this testimony was protected under Section 126 of the Indian Evidence Act, which deals with privileged professional communications. Section 126 protects communications made in the course of professional employment unless made in furtherance of an illegal purpose or showing that a crime or fraud has been committed since the commencement of employment. The High Court found that the plaintiff approached Mr. Giriani with an intent to obtain a decree based on a non-genuine promissory note, constituting an illegal purpose. Therefore, the protection under Section 126 was lost, and Mr. Giriani's testimony was admissible.
Conclusion:
The High Court quashed and set aside the impugned judgment and decree, allowing the appeal and dismissing the suit with no order as to costs. The plaintiff failed to prove the execution of the promissory note, and the defendant demonstrated its lack of authenticity. The communication between the plaintiff and advocate Mr. Giriani was not protected under Section 126 due to its illegal purpose.
-
1993 (4) TMI 338
Issues:
Recovery of loan advanced for commercial or professional purpose, entitlement of plaintiff-bank for future interest exceeding 6% per annum, interpretation of Section 34 of CPC regarding commercial transactions.
Analysis:
The judgment pertains to a first appeal concerning the recovery of a loan advanced to defendants for construction of a hospital, with defendants 2 and 3 as guarantors. The trial court decreed the suit in favor of the plaintiff-bank, directing defendants to pay the amount due in installments with future interest at 6% per annum. The plaintiff-bank, aggrieved by the interest rate, challenged the decree, arguing for a higher rate of 15% per annum based on Section 34 of CPC for commercial loans. The central issue was whether the plaintiff-bank was entitled to future interest exceeding 6% per annum.
The trial judge found that as per Section 34 of CPC, future interest exceeding 6% can only be granted in commercial transactions, not professional loans. The plaintiff contended that the loan was for a commercial purpose, citing a precedent where a factory loan was considered commercial. However, the court distinguished the present case, emphasizing the hospital construction nature of the loan. The court analyzed the definitions of 'commercial,' 'industry,' 'trade,' and 'business,' concluding that a hospital construction loan is service-oriented, not profit-oriented.
The court delved into the meanings of 'profession' and 'professional,' distinguishing them from industry, trade, and business. It highlighted that the Legislature did not include 'profession' in the context of commercial transactions under Section 34 of CPC. Therefore, the court concluded that a professional loan like one for hospital construction does not fall under commercial transactions warranting interest exceeding 6% per annum. Consequently, the appeal was dismissed, upholding the trial court's decision to award future interest at 6% per annum.
-
1993 (4) TMI 337
Issues:
1. Maintainability of the writ petition challenging the order of the Chief Election Commissioner.
2. Interpretation of Article 329 of the Constitution of India.
3. Validity of Sections 58A and 58A of the Representation of the People Act.
4. Principles of natural justice in passing orders.
5. Jurisdiction of the High Court under Article 226 of the Constitution.
6. Reference to a third judge in case of a difference of opinion.
Issue 1: Maintainability of the Writ Petition:
The petitioner sought a writ to quash the Chief Election Commissioner's order countermanding an election. The Division Bench heard the case, where the Attorney General raised a preliminary objection on the maintainability of the writ petition under Article 329 of the Constitution. Mahinder Narain, J., held the writ petition maintainable, while P. N. Jog, J., dismissed it, stating that the election dispute should be raised through an election petition under Section 100 of the Act. This led to a difference of opinion between the judges, resulting in a reference to a third judge.
Issue 2: Interpretation of Article 329 of the Constitution:
The maintainability of the writ petition hinged on Article 329 of the Constitution, which restricts challenging elections except through election petitions. The judges differed on whether the writ petition was maintainable under Article 226 of the Constitution, leading to a reference to a third judge for resolution.
Issue 3: Validity of Sections 58A and 58A of the Representation of the People Act:
Mahinder Narain, J., held that Sections 58A and 58A of the Representation of the People Act were ultra vires the Constitution. This finding influenced the decision on the maintainability of the writ petition challenging the Chief Election Commissioner's orders.
Issue 4: Principles of Natural Justice in Passing Orders:
The judgment highlighted concerns regarding the order passed by the Chief Election Commissioner, emphasizing the importance of following principles of natural justice in decision-making processes. The lack of a returning officer's report and consideration of material circumstances were raised as issues affecting the validity of the order.
Issue 5: Jurisdiction of the High Court Under Article 226:
The judgment delved into the jurisdiction of the High Court under Article 226 of the Constitution to entertain matters related to election disputes. The differing opinions of the judges underscored the complexity of determining the court's jurisdiction in such cases.
Issue 6: Reference to a Third Judge in Case of a Difference of Opinion:
The disagreement between the judges necessitated a reference to a third judge to resolve the maintainability of the writ petition. The third judge, in this case, highlighted the procedural requirements for such references under the Letters Patent and emphasized the need for clarity in stating the specific points of difference for resolution.
In conclusion, the judgment addressed significant issues related to the maintainability of a writ petition challenging election-related orders, the interpretation of constitutional provisions, and the procedural aspects of referring matters to a third judge in case of a difference of opinion. The decision underscored the importance of adherence to legal principles and procedural requirements in resolving complex legal disputes.
-
1993 (4) TMI 336
Issues Involved:
1. Whether Ishwar Singh was a "child" under the Children Act, 1960 at the time of the commission of the offense.
2. Whether the trial and conviction of Ishwar Singh were conducted without jurisdiction.
3. Whether the principle of finality of judgments applies to habeas corpus petitions.
4. Whether the previous judgment by the Division Bench was per incuriam due to ignoring a binding precedent.
5. Whether the petitioner is entitled to a writ of habeas corpus and subsequent release.
Detailed Analysis:
1. Whether Ishwar Singh was a "child" under the Children Act, 1960 at the time of the commission of the offense:
The petitioner argued that he was a "child" within the meaning of section 2(e) of the Children Act, 1960, at the time of the offense, and thus, should have been tried by the Children Court. The District Judge confirmed that Ishwar Singh was indeed a "child" as defined by the Act. However, upon reviewing the case file, it was found that during the appeal, the Division Bench had already determined that Ishwar Singh was not a "child" based on evidence, including the testimony of Dr. M.C. Bhatia, a Radiologist, and the statements of Ishwar Singh's parents.
2. Whether the trial and conviction of Ishwar Singh were conducted without jurisdiction:
The petitioner contended that his trial and conviction by the Court of Sessions were without jurisdiction as he should have been tried under the Children Act, 1960. The court noted that the trial of a "child" by a Court of Sessions violated Article 21, and also Articles 14 and 19 of the Constitution, as it deprived the petitioner of substantial and valuable privileges. The court initially felt that the trial was without jurisdiction and vitiated.
3. Whether the principle of finality of judgments applies to habeas corpus petitions:
The court discussed the principle of finality of judgments, emphasizing that it should not overshadow the constitutional prohibition against deprivation of personal liberty without due process. The court leaned on the observations of Ranganathan, J. in A.R. Antulay v. R.S. Nayak, emphasizing that the principle of finality should not prevent the correction of a grave mistake.
4. Whether the previous judgment by the Division Bench was per incuriam due to ignoring a binding precedent:
The court examined whether the previous judgment was per incuriam, i.e., delivered by ignoring a binding precedent. The court found that the Division Bench had not considered the Supreme Court's judgment in Jaya Mala v. Home Secretary, Government of Jammu and Kashmir, which acknowledged a margin of error of two years in radiological age determination. The court concluded that the Division Bench's order was per incuriam as it ignored this binding precedent.
5. Whether the petitioner is entitled to a writ of habeas corpus and subsequent release:
The court discussed the nature of the writ of habeas corpus, emphasizing its role in protecting personal liberty and its precedence over the principle of finality of judgments. The court concluded that the petitioner had been deprived of his personal liberty by a procedure not prescribed by law, specifically the Children Act, 1960. Therefore, the court issued a writ of habeas corpus, directing the immediate release of Ishwar Singh.
Conclusion:
The court found that the previous decision regarding Ishwar Singh's age was per incuriam, and his trial and conviction were conducted without jurisdiction, violating Article 21 of the Constitution. Consequently, the court issued a writ of habeas corpus, ordering the immediate release of Ishwar Singh.
-
1993 (4) TMI 335
Issues:
Appeal arising from suit under Order 21, Rule 58, C.P.C. regarding property claimed by son and daughter of judgment-debtor as per sale deed. Contest on benami nature of transaction. Interpretation of Benami Transaction (Prohibition) Act, 1988, Section 4(2) in pending proceedings.
Analysis:
The appeal before the Supreme Court stemmed from a suit filed under Order 21, Rule 58, C.P.C. by the son and daughter of the judgment-debtor, claiming a property based on a sale deed executed in their favor in 1957. The property had been attached and sold in execution of a decree against the judgment-debtor. The contesting parties alleged the sale to be a benami transaction. The trial court dismissed the suit, but the lower appellate court decreed it in favor of the appellants. However, the High Court, in a Second Appeal, reversed the lower appellate court's decision and upheld the trial court's judgment, leading to the current appeal.
During the pendency of the matter in the Supreme Court, the Benami Transaction (Prohibition) Act of 1988 came into force. The appellants sought to rely on this Act, specifically Section 4(2), which prohibits the defense based on a right in respect of any property held benami in any suit. The Supreme Court allowed the appellants to raise this additional ground, as it involved a pure question of law.
Citing the decision in Mithilesh Kumari v. Prem Behari Khare, the Supreme Court clarified that the provisions of the Benami Transaction Act, including Section 4(2), apply to pending proceedings. Therefore, the defense raised by the contesting parties regarding the benami nature of the sale transaction was prohibited under the Act. As the High Court had dismissed the suit based on the benami transaction argument, the Supreme Court set aside the High Court's judgment and restored the lower appellate court's decree in favor of the appellants.
In conclusion, the Supreme Court allowed the appeal, setting aside the High Court's judgment and restoring the decree of the lower appellate court in favor of the appellants. No costs were awarded in this matter.
-
1993 (4) TMI 334
Issues:
1. Speedy trial in a criminal case.
2. Delay in completion of trial.
3. Responsibility of prosecuting agency and police officers.
4. Fundamental right of an accused to a speedy trial.
5. Bail application due to delay in trial.
Analysis:
Issue 1: Speedy trial in a criminal case
The judgment addresses the importance of an early decision in a criminal case, emphasizing the necessity of prosecution witnesses appearing in court on time. It highlights the failure of the prosecuting agency and police officers to take responsibility and show interest in court proceedings, leading to delays in the trial process. The case exemplifies the challenges faced by the Presiding Officer due to the indifference of both wings, namely the Prosecuting Agency and the concerned police officers.
Issue 2: Delay in completion of trial
The case involves the petitioner and 16 others facing trial under Section 302, I.P.C. for an incident that occurred in May 1990, resulting in the death of three individuals. Despite some accused being released on bail, the petitioner has been in custody for over 35 months, with the trial remaining incomplete. The delay is attributed to the lack of cooperation and efforts from the prosecuting agency and police officers in serving witnesses and ensuring their timely appearance in court.
Issue 3: Responsibility of prosecuting agency and police officers
The judgment criticizes the callous behavior and indifference displayed by the prosecuting agency and police officers, particularly the Superintendent of Police and Deputy Inspector General of Police. The court expresses concern over the lack of accountability and responsibility in ensuring the timely presence of prosecution witnesses, essential for the smooth progress of criminal trials. The failure of these agencies to fulfill their duties is highlighted as a significant obstacle to achieving early decisions in criminal cases.
Issue 4: Fundamental right of an accused to a speedy trial
The legal counsel for the petitioner argues that a speedy trial in a criminal case is a fundamental right of the accused, emphasizing that prolonged detention without completion of the trial is unjust. The court references previous judgments, including those by the Apex Court of the country, affirming the fundamental right to a speedy trial. It stresses that the delay in the present case is not the fault of the accused, warranting the consideration of releasing the petitioner on bail if the trial is not completed within a reasonable time frame.
Issue 5: Bail application due to delay in trial
Considering the prolonged detention of the petitioner without the trial's completion, the court orders the release of the accused on bail. The petitioner is required to furnish a personal bond and sureties to ensure appearance in court during the trial proceedings. The court directs the Advisor to the Governor dealing with Law & Justice Department and the Director General of Police to take follow-up action based on the judgment.
In conclusion, the judgment underscores the significance of a speedy trial in criminal cases, the responsibility of prosecuting agencies and police officers, and the fundamental right of an accused to a timely resolution of their case. It highlights the adverse consequences of delays in the trial process and emphasizes the need for accountability and efficiency within the criminal justice system.
-
1993 (4) TMI 333
Issues:
Petition under section 482 of the Criminal Procedure Code for quashing proceedings under section 138 of the Negotiable Instruments Act; Dishonour of 11 cheques leading to a complaint; Jurisdiction of the Metropolitan Magistrate in passing sentence.
Analysis:
1. The petitioners filed a petition under section 482 of the Criminal Procedure Code seeking to quash proceedings in the court of Metropolitan Magistrate based on a complaint under section 138 of the Negotiable Instruments Act. The respondent alleged that the petitioners committed an offense by dishonoring 11 cheques totaling a significant amount. The respondent sent a notice demanding payment within fifteen days, which the petitioners failed to comply with, leading to the complaint.
2. The petitioners argued that the respondent failed to issue a notice within fifteen days of the first default, thereby losing their remedy. They also contended that the Metropolitan Magistrate lacked jurisdiction to entertain the complaint due to the prescribed punishment under section 138 of the Act. However, the court held that the Act allows re-presentation of cheques within the outer limit prescribed, and the complaint was valid as the notice was issued within fifteen days of the last dishonouring of the cheques.
3. The court addressed the jurisdictional issue raised by the petitioners, citing section 325 of the Criminal Procedure Code, which allows for forwarding the accused to a higher authority for a more severe punishment if deemed necessary. Therefore, the contention that the Metropolitan Magistrate lacked jurisdiction to pass sentence was dismissed.
4. The petitioners also raised a concern about the respondent filing a single complaint for the dishonouring of 11 cheques instead of separate complaints for each cheque. The court noted that no prejudice was pointed out by the petitioners due to this consolidation of complaints. The petitioners were advised to raise this issue during the trial before the trial court.
5. After considering all contentions, the court found no merit in the petition and dismissed it, upholding the validity of the proceedings before the Metropolitan Magistrate. The judgment referenced a previous court decision to support its interpretation of the Act regarding the issuance of notices in cheque dishonour cases.
-
1993 (4) TMI 332
Issues Involved:
1. Validity of the resignation tendered by the petitioner.
2. Authority of the Additional Collector to accept the resignation.
3. Applicability of alternative remedies under the Municipalities Act.
4. Interpretation of the term "Collector" under the Municipalities Act.
5. Applicability of Section 10 of the Maharashtra Land Revenue Code, 1966.
6. Timing and effectiveness of the resignation and its withdrawal.
Issue-wise Detailed Analysis:
1. Validity of the resignation tendered by the petitioner:
The petitioner, who was the President of the Municipal Council, Achalpur, tendered his resignation on 15-12-1992, effective from 16-12-1992. The resignation was addressed to the Collector, Amravati, but was handed over to the Additional Collector. The petitioner attempted to withdraw his resignation on 16-12-1992, but the respondents disputed the timing of the receipt of the withdrawal letter. The court found that the resignation became effective from 16-12-1992, and the subsequent withdrawal was not valid as it was submitted after the resignation had already taken effect.
2. Authority of the Additional Collector to accept the resignation:
The petitioner argued that only the Collector, as a persona designata under Section 53 of the Maharashtra Municipalities Act, could accept the resignation. The respondents countered that under Section 13(3) of the Maharashtra Land Revenue Code, 1966, the Additional Collector could exercise the powers of the Collector if a notification was issued by the State Government. The court noted that a notification dated 22-7-1986 allowed Additional Collectors to exercise all the powers of the Collector within their respective jurisdictions. The court held that the Additional Collector was authorized to accept the resignation.
3. Applicability of alternative remedies under the Municipalities Act:
The respondents argued that the petitioner should have challenged the election of the new President through an election petition as provided under the Municipalities Act. The court rejected this preliminary objection, stating that the existence of an alternative remedy does not bar the exercise of jurisdiction under Article 226 of the Constitution. The court also noted that the writ petition was filed before the election of the new President and that the election was subject to the result of the writ petition.
4. Interpretation of the term "Collector" under the Municipalities Act:
The court referred to Section 3(11) of the Bombay General Clauses Act, 1904, which defines "Collector" as the Chief Officer in charge of the revenue administration of a district. The court held that in the absence of a specific definition in the Municipalities Act, the term "Collector" should be understood as defined in the General Clauses Act and the Maharashtra Land Revenue Code, 1966.
5. Applicability of Section 10 of the Maharashtra Land Revenue Code, 1966:
The court considered Section 10 of the Code, which allows the Additional Collector to temporarily succeed to the office of the Collector if the latter is disabled from performing his duties, vacates his office, leaves his jurisdiction, or dies. The court held that the Collector being on casual leave falls within the scope of being "disabled from performing his duties," thus allowing the Additional Collector to function as the Collector.
6. Timing and effectiveness of the resignation and its withdrawal:
The court noted that the resignation became effective from 16-12-1992, which means after the midnight of 15-12-1992. The petitioner's subsequent letter of withdrawal, whether received at 1:05 p.m. or 3:00 p.m. on 16-12-1992, was not valid as the resignation had already taken effect. The court concluded that the resignation was validly accepted, and the writ petition was dismissed.
Conclusion:
The writ petition was dismissed, and the court held that the resignation tendered by the petitioner was valid and effective from 16-12-1992. The Additional Collector was authorized to accept the resignation, and the subsequent withdrawal by the petitioner was not valid. The court also rejected the preliminary objection regarding the alternative remedy and interpreted the term "Collector" in line with the General Clauses Act and the Maharashtra Land Revenue Code.
-
1993 (4) TMI 331
The Supreme Court dismissed the Special Leave Petition (S.L.P.) against the order dismissing the writ petition challenging a show cause notice. The Court held that the proper remedy for the petitioner is to respond to the notice, and the writ petition was premature. The time to reply to the show cause notice was extended by four weeks.
-
1993 (4) TMI 330
The Supreme Court allowed the appeal partly, setting aside the Tribunal's order quashing the charge-sheet but rejecting the challenge to the suspension order of B.C Thakur, a Divisional Forest Officer in Himachal Pradesh.
-
1993 (4) TMI 329
The Supreme Court affirmed the Bombay High Court's judgment that the products are classified as Ayurvedic medicines, agreeing with the Revenue's classification under Tariff Item 68. Refund eligibility depends on whether amounts were passed on to purchasers, subject to Section 11B of the Central Excise and Salt Act. The appeal was disposed of with no costs.
-
1993 (4) TMI 328
Issues:
1. Can a statutory tenant create a license, and can such licensee claim immunity from eviction under Section 15A of the Bombay Rent Hotel and Lodging House Rates Control Act 57 of 1947?
2. Interpretation of statutory tenant rights and interests under various court decisions.
3. Application and interpretation of Section 15A of the Bombay Rent Act.
4. Revocation of a license under Section 62 of the Indian Easements Act.
Analysis:
1. The case involved the question of whether a statutory tenant can create a license and if such a licensee can claim immunity from eviction under Section 15A of the Bombay Rent Act. The High Court held that a license created by a statutory tenant was valid, entitling the licensee to the protection of Section 15A. The Court relied on previous decisions to establish the rights of a statutory tenant and the validity of licenses created by them.
2. The Court referred to previous judgments to define a statutory tenant as a person remaining in occupation of premises after the termination of the tenancy. The rights of a statutory tenant were distinguished from those of a contractual tenant, with the former having no estate or interest in the premises. The Court also discussed the transferability of rights and interests between tenants and the limitations imposed by the statute.
3. Section 15A of the Bombay Rent Act was analyzed to determine its application in the case. The section protected a licensee from eviction if they were in occupation of the premises as a licensee on the specified date. The Court emphasized that the protection under Section 15A applied to valid licenses created by contractual tenants or statutory tenants operating at par with contractual tenants.
4. The Court further examined the revocation of a license under Section 62 of the Indian Easements Act. It was held that a license granted by a contractual tenant, who had become a statutory tenant, was invalid as the grantor had ceased to have any interest in the property. Therefore, the license was deemed revoked, and the respondent could not claim protection under Section 15A.
In conclusion, the appeal was allowed, setting aside the High Court's order and dismissing the writ petition, with no order as to costs. The judgment clarified the rights of statutory tenants, the validity of licenses created by them, and the application of Section 15A of the Bombay Rent Act in such cases.
-
1993 (4) TMI 327
Issues involved: Interpretation of legal precedent regarding the status of employees in railway canteens and the entitlement to be treated as railway employees.
Summary:
The Supreme Court, in a previous case, held that employees in statutory and non-statutory canteens in railway establishments are considered railway employees. However, relief was not granted to non-statutory employees at that time. A petition was filed by an association representing commission vendors on railway platforms seeking parity with railway catering service. The petition was dismissed, and a review was sought based on a previous judgment not brought to the court's attention during the initial case. The court clarified that the precedent set in the earlier case is the prevailing law, and the petitioners are not entitled to the requested parity. The review was denied, and the petition dismissed.
-
1993 (4) TMI 326
Issues involved: Validity of order passed by High Court u/s 492 of CrPC quashing criminal proceeding, application of Section 468 of the Code, interpretation of Section 473 of the Code.
Summary:
1. The appellant filed a complaint against her husband and others, alleging cruelty and abuse. The High Court quashed the criminal proceeding citing Section 468 of the Code, stating that the offence under Section 498A was time-barred as the complaint was filed after three years. However, no mention was made regarding the offence under Section 494, punishable by up to seven years' imprisonment.
2. Section 468 of the Code introduced limitations for taking cognizance of certain offences, considering the lapse of time weakens witness testimony. Section 473 allows the Court to take cognizance after the expiry of the limitation period if necessary in the interest of justice, overriding Section 468. The Court must assess the nature of the offence and the victim's background before deciding on condoning the delay.
3. Courts should not apply the rule of limitation strictly in cases of cruelty against women, as the victim often faces continuous abuse and may delay seeking legal recourse due to various reasons. The interest of justice should prevail over the limitation period, especially in cases of matrimonial offences involving cruelty and assault.
4. Referring to a previous case, the Court emphasized the importance of Section 473 in ensuring justice is served even after the limitation period has expired. In the present case, the High Court failed to consider Section 473 while quashing the complaint under Section 498A, despite the seriousness of the allegations.
5. The Supreme Court allowed the appeal, setting aside the High Court's order and directing the Magistrate to proceed with the case promptly, emphasizing the need to consider the interest of justice over strict adherence to limitation periods in cases involving cruelty and abuse.
-
1993 (4) TMI 325
The Supreme Court granted special leave in the case of Ram Kishan and Prabhawati regarding their son's death in a bus accident. The court allowed the appeal, condoned the delay in filing for compensation, and remanded the case to the Motor Accident Claims Tribunal for a decision on merits.
-
1993 (4) TMI 324
Issues Involved:
1. Approval and publication of the select list of District Munsifs by the Jammu and Kashmir Public Service Commission.
2. Government's power to approve or disapprove the select list.
3. Legal rights of candidates included in the select list.
4. Timeliness and procedural fairness in the government's decision-making process.
Summary:
1. Approval and Publication of the Select List:
The appeals challenge the Division Bench judgment of the Jammu and Kashmir High Court, which overturned a Single Judge's decision directing the State Government to approve and publish the select list of District Munsifs prepared by the Jammu and Kashmir Public Service Commission. The High Court had initially requested the government to select twenty candidates instead of ten, leading to the preparation of a select list by the commission.
2. Government's Power to Approve or Disapprove the Select List:
The Division Bench held that the approval and publication of the select list by the Government u/r 39 of the Jammu and Kashmir Civil Services (Judicial) Recruitment Rules, 1967, is not merely a ministerial act but a meaningful one. The government can examine the select list and approve only those candidates deemed suitable. The government is not bound to fill up existing vacancies within a specific timeframe, and inclusion in the select list does not confer an indefeasible right to appointment.
3. Legal Rights of Candidates Included in the Select List:
The appellants argued that the government must approve the list as recommended by the commission and that the government's action in not approving the remaining seven names was arbitrary and capricious. The government contended that it has the authority to scrutinize the list and approve or disapprove it, either wholly or in part, based on complaints and the availability of vacancies.
4. Timeliness and Procedural Fairness:
The Supreme Court noted that the government must act fairly and cannot nullify the selection process without good and valid reasons. The government should have either approved the entire list of twenty candidates or disapproved it entirely within a reasonable time. However, the court found that no vacancies arose within one year from the date of approval of the thirteen names, and the petitioners delayed approaching the court, which disentitled them from any relief.
Conclusion:
The Supreme Court dismissed the appeals, stating that the government's action in not approving the rest of the seven names in the select list was unsustainable but did not interfere due to the lack of vacancies within the relevant period and the petitioners' delay in seeking relief. The writ petition by a candidate in the waiting list also failed as the main appeals were dismissed.
-
1993 (4) TMI 323
Issues: Disallowance of consultancy charges, disallowance of advertisement expenses, addition of sales-tax liability, disallowance of foreign tour expenses
Consultancy Charges:
The issue pertains to the disallowance of consultancy charges amounting to &8377; 28,000 incurred by the assessee for establishing a laboratory. The assessee argued for the allowance of this expenditure as a revenue expenditure or, alternatively, for depreciation to be granted. The Tribunal acknowledged the capital nature of the expenditure but directed the grant of depreciation as per rules on the said amount to the assessee.
Advertisement Expenses:
The dispute revolves around the disallowance of &8377; 8,451 out of advertisement expenses. The assessee contended that these charges were for advertisements published in various souvenirs and magazines, citing support from a Circular of the Board and a judgment of the Bombay High Court. The Tribunal, after reviewing the details of the advertisement expenses and the supporting circular, directed the ITO to grant deduction for the said expenditure.
Sales-Tax Liability:
The issue concerns the addition of &8377; 51,912 in sales-tax liability. The Tribunal noted that the outstanding sales-tax liability was paid before the prescribed time under the law, referencing a Tribunal decision in favor of the assessee. Consequently, the Tribunal directed the deletion of the addition in sales-tax liability.
Foreign Tour Expenses:
The final contention involved the disallowance of &8377; 20,000 from foreign tour expenses. The assessee argued against the ad hoc disallowance, emphasizing that the foreign tours were for business purposes and no personal expenses were included. The Tribunal, after examining the details of the foreign traveling expenses and tour reports, found no justification for the ad hoc disallowance. Therefore, the Tribunal directed the ITO to delete the entire disallowance of &8377; 20,000.
In conclusion, the Tribunal partially allowed the appeal, directing the grant of depreciation on consultancy charges, deduction for advertisement expenses, deletion of sales-tax liability addition, and the removal of the disallowance on foreign tour expenses.
-
1993 (4) TMI 322
Issues Involved:
1. Conspiracy for illegal control and share acquisition.
2. Mala fide and fraudulent acts by respondents.
3. Mismanagement and personal benefits by respondents.
4. Reliefs for established oppression and mismanagement.
Detailed Analysis:
1. Conspiracy for Illegal Control and Share Acquisition:
The petitioners alleged that respondents Nos. 2 to 6 and 8 engaged in a conspiracy to gain control of RDIL by wrongful and illegal means. The conspiracy involved:
- Non-Convertible Debentures (NCDs) Issue: The board decided on December 20, 1989, to issue NCDs instead of Fully Convertible Debentures (FCDs) approved by shareholders, citing false reasons.
- Excess Subscription and Attractive Terms: Circular resolutions on February 1 and 2, 1990, extended the subscription date and offered incentives to debenture holders, despite poor initial response.
- Allotment of Debentures: In March 1990, 23,000 out of 30,000 debentures were allotted to respondents Nos. 2 to 6 and 8 to 10, including non-shareholders, without board reference.
- Rights Issue of Shares: On August 3, 1990, the board approved a rights issue of 1,80,000 shares citing financial constraints, which was misleading and aimed at gaining control.
- Misleading Shareholders: The explanatory statement for the rights issue was tricky, implying shareholder approval was a formality without disclosing directors' interests.
- Allotment of Shares: In October 1990, 1,36,770 out of 1,80,000 shares were allotted to respondents Nos. 2 to 6 and 8 to 10, violating the terms of the issue.
- Misuse of Funds: RDIL funds were misused via Samrat and Crown to purchase RDIL debentures, enabling the respondents to subscribe to shares and gain control.
2. Mala Fide and Fraudulent Acts by Respondents:
The respondents acted fraudulently and with mala fide intent:
- False Representations: Misleading the board about the impossibility of issuing FCDs and the need for funds.
- Non-Disclosure: Failing to disclose details of debenture and share allotments to the board and shareholders, including directors' interests.
- Violation of Shareholders' Mandate: Allotting shares to non-eligible persons and without a proper scheme for employees.
- Pecuniary Benefits: Issuing shares at par without premium, resulting in financial gain for the respondents at the company's expense.
- Misutilisation of Funds: Using RDIL funds through Samrat and Crown for personal gain, leading to financial loss for RDIL.
3. Mismanagement and Personal Benefits by Respondents:
The respondents mismanaged RDIL and Samrat for personal gain:
- Investments in Aryagene and Crown: Investments made without disclosure, resulting in no returns and potential loss.
- Fabrication of Documents: Inconsistencies in debenture certificates and investment records, indicating fabrication.
- Illegal Appointments: Attempting to appoint an alternate director in violation of the Companies Act and manipulating board minutes.
- Siphoning Funds: Paying Mrs. Dhabhar without work and granting loans to non-directors.
- Conflict of Interest: The company secretary acting on behalf of conflicting interests.
4. Reliefs for Established Oppression and Mismanagement:
The petitioners are entitled to reliefs due to established oppression and mismanagement:
- Setting Aside Allotments: The allotment of shares to debenture-holders and directors/employees is set aside, reducing the subscribed capital of RDIL and Samrat.
- Refunds and Rectification: Refunds to be made to shareholders without interest, and the members' register to be rectified.
- Appointment of Administrators: A committee of administrators is appointed to take charge of RDIL and its subsidiaries, with powers to operate bank accounts and appoint a special auditor.
- Investigation and Action: The committee to investigate allegations against the company secretary and decide on further action.
- Superseding Board: The current board of directors is superseded, and a special meeting of shareholders is to be called for electing new directors.
- Legal Costs: Directors are not entitled to reimbursement of legal costs for defending the petition.
The order emphasizes the need for transparency, fairness, and adherence to fiduciary duties by the directors, ensuring the protection of shareholders' interests and the company's financial health.
-
1993 (4) TMI 321
Issues:
Petition for winding up based on delay in completion of construction work and alleged failure to pay stipulated sum.
Analysis:
1. The petitioner filed a winding-up petition against the builder for delay in completing the construction work as per the agreement. The petitioner claimed the respondent owed a stipulated sum of Rs. 3 lacs due to the delay.
2. The collaboration agreement authorized the respondent to develop the land and share the completed building equally. The petitioner cited clauses 20 and 29, emphasizing that any amendment required written agreement. The respondent referred to a Memorandum of Understanding extending the completion date.
3. The Memorandum mentioned the estimated cost of unfinished work and pending installments from flat buyers.
4. The petitioner did not disclose the Memorandum in the petition.
5. The agreement allowed the petitioner to retain Rs. 7 lacs interest-free until project completion, with the respondent to refund it. The petitioner claimed compensation for delay based on a clause in the agreement.
6. The petitioner was accused of concealing the Memorandum.
7. The clause specified Rs. 50,000 monthly indemnity for delays, with a provision for completion at the builder's cost if not completed within six months.
8. The petitioner argued the clause was for liquidated damages, citing Section 74 of the Indian Contract Act.
9. The court clarified that liquidated damages are pre-estimates of likely loss, with compensation not exceeding the named amount.
10. The respondent disputed the claim, citing incomplete aspects and the petitioner's actions, proposing to complete the project if cooperation was provided.
11. The court noted a genuine dispute between the parties.
12. Details about the constructed flats, pending sales, and ongoing legal matters were presented. Reference to a legal case was made to support the petitioner's claim.
13. The court found the winding-up petition not maintainable due to the unresolved dispute, dismissing it without prejudice to the petitioner's right to seek remedies in a civil court.
-
1993 (4) TMI 320
Issues Involved:
1. Res Judicata
2. Constructive Res Judicata (Order 2 Rule 2(3) CPC)
3. Jurisdiction of Civil Court post Fifth Amendment of the Goa, Daman & Diu Agricultural Tenancy Act, 1964
Summary:
1. Res Judicata:
The High Court dismissed the suit on the ground of res judicata, asserting that the subject matter of the second suit was directly and substantially in issue in the previous suit between the same parties. The Supreme Court found this conclusion difficult to sustain. The first suit was dismissed on a technical ground that a suit for a mere declaration without seeking consequential relief of possession could not lie. The issue regarding the plaintiff's status as a lessee was not settled in the first suit and hence could not be barred by res judicata in the subsequent suit brought by the lessee for possession of the demised property.
2. Constructive Res Judicata (Order 2 Rule 2(3) CPC):
The High Court also held that the suit was barred by Order 2 Rule 2(3) of the Code of Civil Procedure, which requires a plaintiff to include the whole of his claim in the framing of the suit. The Supreme Court disagreed, noting that the first suit was for an injunction, not for possession, and was dismissed on the technical ground that the plaintiff was not in de facto possession. The cause of action for the second suit was distinct, based on the allegation of forcible dispossession, and hence not barred by Order 2 Rule 2(3) CPC.
3. Jurisdiction of Civil Court post Fifth Amendment of the Goa, Daman & Diu Agricultural Tenancy Act, 1964:
The High Court concluded that the Fifth Amendment, which came into force during the pendency of the suit, ousted the jurisdiction of the Civil Court. The Supreme Court examined whether the amendment applied retrospectively to pending litigation. It held that the Civil Court had jurisdiction under section 9 CPC until the Fifth Amendment became effective. Post-amendment, questions of tenancy had to be decided by the Mamlatdar, and the Civil Court's jurisdiction was ousted by section 58(2) of the Act. The Supreme Court suggested that the proper course would be to refer the issue of tenancy to the Mamlatdar and proceed based on his decision.
Conclusion:
The Supreme Court allowed the appeal, set aside the High Court's order, and remitted the matter to the Trial Court to follow the appropriate procedure in light of the observations made. The Trial Court was directed to determine the course of action based on the pleadings and nature of the questions required for the grant or refusal of relief claimed in the suit. No order as to costs was made.
........
|
9911796707
