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2005 (4) TMI 655
1. ISSUES PRESENTED and CONSIDERED The core legal questions considered in this judgment include: - Whether the applications filed by the landlords for recovery of possession of the demised premises are maintainable before the Company Court, given the provisions of the Delhi Rent Control Act, 1959.
- Whether the Company Court has jurisdiction to entertain applications for eviction and recovery of possession against a company in liquidation.
- Whether the Official Liquidator needs the demised premises for the liquidation process, and if not, whether the landlords are entitled to recover possession of the premises.
- Whether the provisions of the Delhi Rent Control Act, 1959, providing statutory protection to tenants, override the jurisdiction of the Company Court under Section 446 of the Companies Act, 1956.
2. ISSUE-WISE DETAILED ANALYSIS Maintainability of Applications Before the Company Court Relevant Legal Framework and Precedents: The maintainability of the applications hinges on Section 446 of the Companies Act, 1956, which mandates that no suit or legal proceeding can be commenced against a company in winding up without the leave of the Company Court. The Court also considered the Delhi Rent Control Act, 1959, which provides statutory protection to tenants. Court's Interpretation and Reasoning: The Court recognized that once a company is ordered to be wound up, all proceedings against it are to be stayed unless the Company Court grants leave. The Court emphasized that Section 446 aims to protect the company's assets for equitable distribution among creditors and shareholders. Application of Law to Facts: The Court held that the applications for recovery of possession are maintainable before the Company Court, as the proceedings relate to the assets of the company in liquidation. Jurisdiction of the Company Court Relevant Legal Framework and Precedents: The Court referred to the Full Bench judgment in Life Insurance Corporation of India v. Asia Udyog (P) Ltd., which held that the Company Court has jurisdiction to entertain applications for recovery of possession against a company in liquidation. Court's Interpretation and Reasoning: The Court concluded that the Company Court has jurisdiction to entertain such applications, provided it examines whether the premises are needed for the liquidation process. Application of Law to Facts: The Court determined that the premises were not needed by the Official Liquidator for the liquidation process, as the premises were meant for personal use and not used for years. Statutory Protection under the Delhi Rent Control Act Relevant Legal Framework and Precedents: The Delhi Rent Control Act, 1959, provides statutory protection to tenants, allowing eviction only on specific grounds. The Court considered whether this special statute overrides the jurisdiction of the Company Court. Court's Interpretation and Reasoning: The Court held that while the Rent Control Act provides certain protections, the Company Court can still entertain applications for recovery of possession if the premises are not required for the liquidation process. Application of Law to Facts: The Court found that the landlords made a case for recovery of possession, even applying the standards of the Rent Control Act, as the premises were not needed by the company or the Liquidator. 3. SIGNIFICANT HOLDINGS Core Principles Established: The judgment establishes that the Company Court has jurisdiction to entertain applications for recovery of possession against a company in liquidation, even when the premises are covered by a special statute like the Delhi Rent Control Act, provided the premises are not needed for the liquidation process. Final Determinations on Each Issue: The Court concluded that the applications for recovery of possession were maintainable, the Company Court had jurisdiction, and the landlords were entitled to recover possession of the premises, as the premises were not needed by the company or the Official Liquidator. Verbatim Quotes of Crucial Legal Reasoning: "The Company Court can entertain a matter for the realisation of arrears of rent or for the recovery of the premises... these proceedings, which are for recovery of possession or for recovery of damages, are normally and appropriately such which can be determined by the winding up Courts." The Court ordered the Official Liquidator to hand over possession of the demised premises to the landlords, emphasizing that the premises were not required for the liquidation process and that the landlords had established their entitlement to recover possession.
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2005 (4) TMI 654
Issues Involved:
1. Eligibility for SSI exemption under Notification No. 1/93-C.E. as amended by Notification No. 59/94-C.E.
2. Ownership and use of brand names/trade marks.
3. Applicability of para 4 of Notification No. 1/93-C.E. to the respondents' goods.
4. Validity and implications of the Civil Court's decree.
5. Interpretation and application of the High Court's judgments.
Issue-wise Detailed Analysis:
1. Eligibility for SSI Exemption under Notification No. 1/93-C.E. as Amended by Notification No. 59/94-C.E.:
The lower appellate authorities had allowed the benefit of SSI exemption under Notification No. 1/93-C.E. for clearances of aerated waters and other non-alcoholic drinks by the respondents after 1-4-1994. The Revenue challenged this, arguing that the clearances were made under brand names belonging to another person, Shri K.P.R. Sakthivel, which attracted the bar in para 4 of the Notification as amended by Notification No. 59/94-C.E.
2. Ownership and Use of Brand Names/Trade Marks:
The business history revealed that the brand names "KALI," "KALI MARK," "BOVONTO," "TRIO," "SOLO," "KALI COLA," "FRUTANG," and "CAPTAIN" were initially registered in the name of Shri K.P.R. Sakthivel. The respondents were permitted to use these brand names within their respective territories as per a DEED OF MUTUAL AGREEMENT dated 12-3-1993. However, the agreement did not confer ownership of the brand names on the respondents but merely permitted their use.
3. Applicability of Para 4 of Notification No. 1/93-C.E. to the Respondents' Goods:
The amendment to Notification No. 1/93-C.E. by Notification No. 59/94-C.E. introduced para 4, which stated that the exemption would not apply to goods bearing a brand name or trade name of another person. The respondents' goods were cleared under brand names registered in the name of Shri K.P.R. Sakthivel, thus falling under the exception in para 4. The Tribunal held that the respondents could not claim the benefit of the SSI exemption as the brand names belonged to another person.
4. Validity and Implications of the Civil Court's Decree:
The Civil Court's decree, obtained by Shri K.P.R. Dhanushkodi, declared his exclusive right to use the brand names within his territory and restrained others from interfering. However, this decree did not confer ownership of the brand names on him or other respondents. The Tribunal noted that the decree only allowed the use of brand names within specific territories and did not affect the applicability of para 4 of the Notification.
5. Interpretation and Application of the High Court's Judgments:
The High Court's Single Bench judgment, which denied the benefit of the exemption to the respondents, was set aside by the Division Bench for remand to the adjudicating authorities. However, the substantive findings that the brand names belonged to Shri K.P.R. Sakthivel and that the respondents were merely permitted to use them were not interfered with. The Tribunal noted that the Division Bench's remand did not affect the applicability of para 4 of the Notification.
Conclusion:
The Tribunal concluded that the respondents were not eligible for the benefit of the SSI exemption under Notification No. 1/93-C.E. (as amended) for any period from 1-4-94 in respect of goods cleared under brand names belonging to Shri K.P.R. Sakthivel. The impugned orders were set aside, and the appeals were allowed.
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2005 (4) TMI 652
Issues:
Enforcement of guarantees under section 31(1)(aa) of the State Financial Corporation Act; Jurisdiction of the court; Discharge of guarantors under section 139 of the Indian Contract Act; Liability of guarantors independent of principal debtor; Validity of waiver of rights under Indian Contract Act; Consideration for execution of guarantee; Limitation period for invoking guarantee; Rate of interest charged by financial institution; Payment of court fees on the claimed amount; Dispute regarding the quantum of claim.
Analysis:
Enforcement of Guarantees:
The petitions were filed under section 31(1)(aa) of the State Financial Corporation Act against guarantors for the enforcement of their liabilities arising from guarantees provided for a loan disbursed to a company. The guarantors failed to make repayment as per the terms of the loan agreement, leading to the invocation of guarantees by the petitioner.
Jurisdiction of the Court:
The court determined its jurisdiction based on the location of the industrial concern's office and business activities. Since the office and substantial business of the company were within the court's jurisdiction, it had the authority to entertain the claim, supported by clauses in the deed of guarantee specifying Bombay as the exclusive jurisdiction.
Discharge of Guarantors:
The argument that the guarantors were discharged under section 139 of the Indian Contract Act due to the alleged undervalued sale of assets was rejected, as the company had accepted the sale and did not challenge the petitioner's actions under section 29.
Liability of Guarantors:
The court affirmed that the liabilities of principal debtors and guarantors are independent, allowing for the enforcement of guarantees against guarantors without initiating proceedings against the principal debtor.
Validity of Waiver and Consideration:
Contentions regarding the validity of waiver clauses in the guarantee and lack of consideration for executing the guarantees subsequent to financial assistance were dismissed, emphasizing that the guarantees were given in consideration of the loan amount lent and advanced.
Limitation Period and Rate of Interest:
The court rejected claims of limitation and excessive interest rate, citing precedents and agreements between the parties to uphold the invocation of the guarantee within the limitation period and the agreed-upon interest rate.
Payment of Court Fees and Quantum of Claim:
Arguments related to court fees and the quantum of the claim were also addressed, with the court ruling in favor of the petitioner and directing the guarantors to make payment of the outstanding amount along with interest, while rejecting contentions lacking supporting evidence.
Conclusion:
In conclusion, the court allowed the petition, directing the respondents to make payment of the outstanding amount with interest. No costs were awarded in the judgment.
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2005 (4) TMI 651
Issues Involved:
1. Locus standi of the petitioner.
2. Requirement of previous sanction from the Central Government for construction on Class-A(1) land.
3. Environmental and ecological impact of the proposed construction.
4. Availability of alternative sites for the proposed construction.
Summary:
Locus Standi of the Petitioner:
The petitioner, a citizen of Allahabad, filed a writ petition u/s 226 of the Constitution of India, raising concerns about the ecological and environmental impact of the construction of residential buildings on "Polo Ground." The respondents argued that the petitioner had no locus standi, as he neither represented the public nor had a direct interest in the land. The court, however, held that the petitioner had a sufficient interest in the proceedings as he acted bonafide and raised issues of public importance, including the right to a healthy environment under Article 21 of the Constitution of India. The court emphasized that Public Interest Litigation (PIL) is meant to ensure observance of constitutional and legal provisions for the benefit of the community and disadvantaged groups.
Requirement of Previous Sanction:
The court examined the Cantonment Land Administration Rules, 1937, particularly Rules 3, 5, 7, 10, 13, and 14, which mandate that no addition or alteration in the General Land Register or construction on Class-A land can be made without the previous sanction of the Central Government. The court found that the military authorities had not obtained the necessary prior sanction from the Central Government for the proposed construction on the Polo Ground. The court rejected the respondents' argument that no sanction was required as the land use was being changed within the same category of Class-A(1) land. The court held that the construction of duplex units did not fall within the definition of "bungalow" and required prior approval.
Environmental and Ecological Impact:
The court emphasized the importance of maintaining open spaces for ecological balance and public health. It invoked the Public Trust Doctrine, which mandates the government to protect natural resources like air, water, and open spaces for public use. The court cited various Supreme Court judgments underscoring the need to preserve open spaces for recreation and environmental protection. The court noted that the Polo Ground had historical significance and had been used for various public purposes for over a century. The court held that the proposed construction would adversely affect the environment and deprive the citizens of Allahabad of their right to a healthy environment.
Availability of Alternative Sites:
The court observed that the military authorities had other large tracts of open land in the cantonment area that could be used for the proposed construction. The court noted that the respondents had not demonstrated that the Polo Ground was the only available site for the project. The court held that the military authorities should consider alternative sites to avoid compromising the environmental and historical value of the Polo Ground.
Conclusion:
The court issued a writ of mandamus restraining the respondents from making any construction on the Polo Ground and directed them to maintain it as an open piece of land. The court also directed the respondents to restore the land to its original shape within three months. The writ petition was allowed, and no costs were awarded.
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2005 (4) TMI 650
Issues Involved:
1. Determination of Market Value of Acquired Lands
2. Deduction for Development Charges
3. Entitlement to Interest on Solatium
Detailed Analysis:
1. Determination of Market Value of Acquired Lands:
The Government of Gujarat issued a notification for the acquisition of lands in Santrampur town due to submergence from Kadana Dam. The Land Acquisition Officer initially offered compensation ranging from Rs. 35/- to Rs. 60/- per square meter. The claimants sought higher compensation, which led to a series of appeals and references. The Reference Court initially determined the market value at Rs. 225/- per square meter, but upon remand, it was adjusted to Rs. 200/- per square meter based on a deed of sale dated 15th December 1978 (Ex. 145). The High Court later adjusted the compensation to Rs. 180/- per square meter for large areas and Rs. 200/- per square meter for smaller areas.
2. Deduction for Development Charges:
The Reference Court and the High Court both recognized the need to deduct development charges from the market value. The Reference Court deducted 33% for development charges, while the High Court made deductions of 33% for large areas and 25% for smaller areas. The Supreme Court noted that while determining compensation, factors such as the need for roads, electricity, and drainage must be considered, leading to deductions ranging from 20% to 50%. The Court highlighted that the area under acquisition was not fully developed and had limited facilities, thus justifying the deductions.
3. Entitlement to Interest on Solatium:
The High Court initially denied interest on solatium based on the decision in Prem Nath Kapur v. National Fertilizers Corporation of India Limited. However, the Supreme Court overruled this decision, citing the Constitution Bench judgment in Sunder v. Union of India, which affirmed that claimants are entitled to interest on solatium. The Court emphasized that the legislative intent was to ensure that the aggregate compensation amount, including solatium, reaches the claimant without undue delay, and any delay should attract interest.
Conclusion:
The Supreme Court concluded that the compensation should be determined at Rs. 160/- per square meter for large plots and Rs. 175/- per square meter for small plots. Additionally, the claimants were entitled to interest on solatium, aligning with the judgment in Sunder v. Union of India. The appeals were disposed of with these directions, and no costs were awarded.
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2005 (4) TMI 649
... ...
... ... ..... ER Appeal dismissed on the ground of delay.
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2005 (4) TMI 648
The Supreme Court of India allowed the compounding of the offence under Section 500 IPC. The appellants paid a fine of Rs. 8,000, which was given to the respondent. Both parties agreed not to raise further disputes related to the case. The appellants were acquitted, and the appeal was disposed of accordingly. The respondent can withdraw the deposited amount from the court.
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2005 (4) TMI 647
Issues: Bail application under NDPS Act involving ephedrine export to Manila, lack of recovery from petitioner, absence of direct evidence implicating petitioner, identification of witnesses, application of Section 37 of NDPS Act.
In this judgment, the primary issue revolves around a bail application under the NDPS Act concerning the export of ephedrine to Manila. The petitioner's counsel argued that no recovery was made from the petitioner and emphasized that ephedrine, while a controlled substance, is not a drug or psychotropic substance. The prosecution alleged that 1 ton of ephedrine was exported to Manila by a specific concern, implicating individuals associated with it, but not directly linking the petitioner to the offense. The petitioner had been in custody for over a year, and it was contended that Section 37 of the NDPS Act was not applicable in this case.
The State's counsel opposed bail, claiming that the ephedrine export was orchestrated by the petitioner, who allegedly received a consideration for it. However, beyond statements under Section 67, there was a lack of substantial evidence directly connecting the petitioner to the crime. The absence of concrete evidence implicating the petitioner was a significant point of contention during the proceedings.
Additionally, the petitioner's counsel reiterated that key witnesses had not identified the petitioner, further weakening the case against him. Based on the submissions, facts, and circumstances presented, including the petitioner's extended custody period and the inapplicability of Section 37 of the NDPS Act, the court directed the petitioner's release on bail. The bail was granted upon furnishing a personal bond and surety, with the condition that the petitioner must not leave India without prior court permission.
Overall, the judgment carefully considered the lack of direct evidence linking the petitioner to the alleged offense, the absence of recovery from the petitioner, and the specific circumstances of the case to grant bail under the NDPS Act while imposing necessary conditions to ensure the petitioner's availability for further proceedings.
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2005 (4) TMI 646
Issues:
Challenge to legality of proceedings under Sec. 138 of Negotiable Instruments Act, 1881.
Analysis:
The petitioners contested the legality of proceedings initiated based on a complaint alleging a violation of Sec. 138 of the Negotiable Instruments Act, 1881. They argued that the complaint was not maintainable as the essential elements of Ss. 138 and 141 of the Act were not proven even for taking cognizance. The respondent's counsel opposed these submissions, asserting that the dispute required evidence for effective adjudication, indicating that the petition should not be entertained at the current stage.
Analysis:
Mr. U.U. Lalit, as the learned Senior Counsel for the petitioners, raised concerns about the petitioners' difficulty in attending each court date. Considering the nature of the dispute, the court directed that if an application under Sec. 205 of the Code of Criminal Procedure, 1973, is submitted, the trial court should exempt the petitioners from personal attendance. However, the trial court was instructed to establish terms and conditions as per sub-sec. (2) of Sec. 205. Any attempt to prolong the proceedings exploiting the exemption from personal attendance could result in necessary orders from the court.
This comprehensive analysis of the judgment highlights the issues raised by the petitioners regarding the legality of proceedings under the Negotiable Instruments Act, 1881, and the court's directives regarding the petitioners' personal attendance during the trial proceedings.
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2005 (4) TMI 645
Issues:
1. Bail cancellation based on alleged threats to witnesses and suppression of material facts.
2. Consideration of grounds for cancellation of bail.
3. Allegation of absconding and interference in trial by the appellant.
Analysis:
1. The appellant challenged the High Court's order cancelling his bail, citing that the court did not follow established principles for bail cancellation. The complainant alleged that the appellant, an influential figure, had manipulated the investigation and posed a threat to witnesses. However, the complaints of threats were lodged while the appellant was still in custody, undermining their credibility. The appellant also argued that the delay in filing charges against him was due to personal animosity with a police officer, not lack of evidence against him.
2. The High Court's decision to cancel bail was based on the alleged threats and the appellant's failure to disclose the conviction of co-accused in the connected trial. The court also noted that the appellant was described as an active assailant in the trial judgment. However, the appellant contended that he had disclosed the co-accused's conviction in his bail application, shifting the responsibility to the prosecution for not highlighting this fact. The Supreme Court found these grounds insufficient for bail cancellation, emphasizing the need for post-bail conduct to justify such action.
3. The respondent argued that the appellant had been absconding, raising concerns about his potential interference in the trial. Contrary to this claim, records showed that the appellant had been actively participating in legislative activities and had not been listed as an absconder in previous charge-sheets. The Supreme Court dismissed the absconding allegation, highlighting the lack of substantial evidence against the appellant over the years.
In conclusion, the Supreme Court allowed the appeal, setting aside the High Court's bail cancellation order. However, to address concerns of interference, the appellant was restricted from entering a specific jurisdiction except for trial attendance. The Court clarified that its observations were preliminary and should not influence the trial court's proceedings.
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2005 (4) TMI 644
Issues:
Appeal against acquittal under Section 302/34 IPC based on reliability of eyewitnesses' testimonies.
Analysis:
The judgment pertains to an appeal against the acquittal of the appellants under Section 302/34 of the Indian Penal Code. The High Court had acquitted the appellants, who were earlier convicted and sentenced to life imprisonment by the Trial Court. The incident in question occurred on 5.10.1979 in village Vikrampur, P.S. Kishni, where the deceased was allegedly shot and killed by the appellants. The prosecution's case relied on three eyewitnesses: PW1, PW2, and PW3. The Trial Court found the appellants guilty based on the testimonies of these witnesses. However, the High Court, in its impugned judgment, raised doubts about the reliability of the eyewitnesses' testimonies.
The High Court analyzed the evidence of the eyewitnesses in detail. It found discrepancies in the statements of PW2, the deceased's wife, regarding her presence at the time of the occurrence. The medical evidence suggested that the deceased had consumed food a few hours before the incident, which contradicted PW2's statements. Additionally, PW1, who witnessed the incident while returning from the village, was deemed unreliable by the High Court due to his animosity towards the appellants and lack of corroborating evidence. The High Court concluded that the testimonies of these witnesses were not credible, casting doubt on the prosecution's case.
The Supreme Court, after considering the reasons provided by the High Court and the evidence on record, upheld the acquittal. It noted that if two reasonable views exist based on the evidence, the one favoring the accused must be preferred. The Court found no merit in the appeal and dismissed it accordingly. The judgment underscores the importance of assessing the reliability of eyewitness testimonies in criminal cases and the principle of giving the benefit of doubt to the accused in case of uncertainty or conflicting evidence.
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2005 (4) TMI 643
Issues Involved:
1. Entitlement of pensioners to revised pension benefits based on the minimum scale of pay introduced with effect from 01.01.1996.
2. Validity of the office memorandum dated 11.05.2001 clarifying the office memorandum dated 17.12.1998.
3. Application of the pay scale revisions to pensioners who retired before the implementation of the 4th and 5th Pay Commissions.
4. Applicability of pay scales drawn during deputation to the calculation of pension.
5. Retrospective versus prospective application of revised pay scales.
Issue-wise Detailed Analysis:
1. Entitlement of Pensioners to Revised Pension Benefits:
The pensioners sought payment of pension calculated on the minimum scale of pay of Rs. 14,300 - 18,300, introduced with effect from 01.01.1996. The Central Administrative Tribunal (CAT) initially granted this relief, stating that pensions should be calculated based on the revised pay scale. However, the court concluded that the pensioners were not entitled to the revised scale of Rs. 14,300 - 18,300 as they never held the corresponding pre-revised scale of Rs. 2,000 - 2,250 before retirement. The court held that the pensioners' pensions should be fixed based on the revised scale of Rs. 12,000 - 16,500, which corresponded to their last drawn pay scale of Rs. 1,500 - 2,000.
2. Validity of the Office Memorandum Dated 11.05.2001:
The court examined whether the clarification dated 11.05.2001 was an executive action in accordance with Article 77 of the Constitution of India. The court reviewed the file and found that the clarification had been approved by the relevant ministers and the Prime Minister, thus complying with the rules of business. The court concluded that the clarification was valid and formed an integral part of the office memorandum dated 17.12.1998. Consequently, the clarification was binding and valid.
3. Application of Pay Scale Revisions to Pensioners Who Retired Before the Implementation of the 4th and 5th Pay Commissions:
The court found that the communication dated 18.12.1997, which merged the pay scales into a single scale of Rs. 14,300 - 18,300, applied only to those in service as of 01.01.1996 with 13 years of service in Group 'A'. Since the pensioners had retired before this date and were never in the selection grade pay of Rs. 2,000 - 2,250, they were not entitled to the upgraded revised scale of Rs. 14,300 - 18,300. Their pensions were correctly fixed based on the revised scale of Rs. 12,000 - 16,500.
4. Applicability of Pay Scales Drawn During Deputation to the Calculation of Pension:
For the pensioner in W.P.No. 30047/2002, who was on deputation to MTNL and drew a higher pay scale, the court held that the emoluments drawn during foreign service could not be treated as emoluments for pension purposes. The pension should be calculated based on the pay scale of Rs. 3,700 - 5,000 drawn in the parent department, which was revised to Rs. 12,000 - 16,500. The court set aside the CAT's order granting pension based on the higher pay scale of Rs. 4,500 - 5,700.
5. Retrospective versus Prospective Application of Revised Pay Scales:
In W.P.No. 32527/2004, the court addressed the issue of whether the revised pay scale of Rs. 24,050 - 26,000, introduced by the Ministry of Finance on 30.06.1999, applied retrospectively. The court held that the revision was prospective and did not apply to the pensioner who retired before the revision date. The pensioner's pension was correctly fixed based on the pay scale of Rs. 22,400 - 26,000, which was the revised scale applicable at the time of his retirement.
Conclusion:
The court dismissed the petitions of the pensioners seeking higher pension benefits based on the revised pay scale of Rs. 14,300 - 18,300. It upheld the validity of the office memorandum dated 11.05.2001 and clarified that pension calculations should be based on the revised scale corresponding to the last drawn pay scale at the time of retirement. The court set aside the orders of the CAT where they were found to be inconsistent with these principles.
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2005 (4) TMI 642
Issues Involved:
1. Whether the appellants' application under Section 46 of the Trade and Merchandise Marks Act, 1958 for removal of the trade mark of the respondent on account of non-use was within time.
2. Whether non-use by the respondent was on account of restriction on import, constituting special circumstances.
Detailed Analysis:
Issue 1: Timeliness of the Application under Section 46
The appellants' application under Section 46 of the Trade and Merchandise Marks Act, 1958 was dismissed by the learned Single Judge, who held that the application was barred under Section 137 of the Limitation Act, 1963. The appellants contended that non-use is a continuous process, giving them a recurring cause of action for removal of the impugned mark. They argued that Section 46 does not envisage any relief period but only provides for a qualifying period of five years and one month, thus the application was not barred by limitation.
The court noted that the Trade and Merchandise Marks Act, 1958 is both substantive and procedural, and Article 137 of the Limitation Act, 1963 does not apply to applications for rectification under Section 46. The court held that every day of non-use continuing for five years and one month before the institution of the application entitles the appellants to maintain the application. The court concluded that the application was not barred by limitation, setting aside the learned Single Judge's finding on this issue.
Issue 2: Special Circumstances for Non-Use
The respondent contended that the non-use of the trademark was due to special circumstances, specifically restrictions under the Import Policy. The court considered various import policies from different years, which listed consumer goods, including air-conditioners, as banned items. The respondent argued that these restrictions constituted special circumstances under Section 46(3) of the Act.
The court found that the respondent had established an intention to use the trademark but was prevented from doing so due to legal disabilities imposed by the government's import restrictions. The court noted that the respondent had taken steps to protect its trademark, such as filing suits for infringement and passing off, which indicated an intention to use the trademark.
The court held that the existence of special circumstances, such as the import ban, justified the non-use of the trademark by the respondent. The court agreed with the learned Single Judge's finding that the trademark was not liable to be removed on the ground of non-use due to these special circumstances.
Conclusion:
The court concluded that the appellants' application under Section 46 was not barred by limitation, but the respondent's non-use of the trademark was justified due to special circumstances. Consequently, the appeal was dismissed, and the trademark of the respondent was not removed from the register. The parties were left to bear their own costs.
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2005 (4) TMI 641
Issues Involved:
1. Maintainability of a second criminal complaint on the same set of facts and allegations after the first complaint was dismissed for non-appearance of the complainant and acquittal of the accused under Section 256 of the Code of Criminal Procedure (Cr. P.C.).
Detailed Analysis:
Issue 1: Maintainability of the Second Criminal Complaint
The primary legal question addressed was whether a second complaint in a summons case is maintainable when the first complaint was dismissed for non-appearance of the complainant and his counsel, and the accused was acquitted under Section 256 of the Cr. P.C.
Facts of the Case:
- The first complaint was filed on 3-2-1988, alleging defamation under Sections 499/500/501/502 read with Section 34, I.P.C., due to a news item published on 8-12-1987.
- The accused appeared in court on 11-7-1988, but the complainant and his counsel were absent. Consequently, the complaint was dismissed for non-prosecution, and the accused was acquitted.
- The dismissal order was not challenged through appeal, revision, or under Section 482 of the Code, thus attaining finality.
- A second complaint was filed on 18-7-1988, essentially identical to the first, except for an explanation of the non-appearance in paragraph 10.
Legal Provisions and Precedents:
- Section 256, Cr. P.C.: Allows for the dismissal of a complaint and acquittal of the accused if the complainant does not appear.
- Section 300, Cr. P.C.: Prohibits a person from being tried again for the same offense after acquittal or conviction, but the explanation clarifies that dismissal of a complaint or discharge of the accused is not an acquittal for the purpose of this section.
- Relevant Case Law:
- *Pramatha Nath Talukdar v. Saroj Ranjan Sarkar (1962)*: Established that a second complaint can be entertained in exceptional circumstances, such as manifest error, miscarriage of justice, or new facts.
- *Major General A.S. Gauraya v. S.N. Thakur (1986)*: Held that the Magistrate has no inherent power to restore a dismissed complaint.
- *Jatinder Singh v. Ranjit Kaur (2001)*: Clarified that a second complaint is permissible if the first was dismissed for non-appearance, not on merits.
- *Mahesh Chand v. B. Janardhan Reddy (2003)* and *Poonam Chand Jain v. Fazru*: Reiterated that second complaints are permissible only in exceptional circumstances.
Court's Reasoning:
- The court emphasized that once a complaint is dismissed under Section 256 and the accused is acquitted, the Magistrate has no jurisdiction to review or recall such an order.
- The only remedies available to the complainant are to file an appeal, revision, or a petition under Section 482 of the Code.
- The court found that the second complaint, being a verbatim copy of the first, did not fall under any exceptional circumstances justifying its maintainability.
- The court noted that the dismissal of the first complaint and the acquittal of the accused had become final as it was not challenged.
Conclusion:
- The second complaint filed by the respondent was not maintainable as it did not meet the criteria of exceptional circumstances required for entertaining a second complaint.
- The act of summoning the petitioner in the second complaint was deemed an abuse of the process of the court.
- Both petitions were allowed, and the second complaints and subsequent proceedings were quashed.
Final Order:
The second complaints filed by respondent No. 2 and the subsequent proceedings arising therefrom were quashed, reaffirming that a second complaint on the same facts is not maintainable after the first complaint was dismissed for non-appearance and the accused was acquitted under Section 256 of the Cr. P.C.
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2005 (4) TMI 640
Issues:
- Challenge to decree by guarantors on grounds of limitation
- Claim by bank against borrower and guarantors for recovery
- Dispute over the extension of loan period and deposits made
- Burden of proof on bank regarding deposits and limitation
- Examination of evidence and witness testimonies
- Recovery of debt from hypothecated goods
Analysis:
1. The appeal challenges a decree favoring the bank against the borrower and guarantors, primarily on the grounds of limitation. The bank filed a civil suit for recovery against all defendants, seeking repayment of the loan amount and interest. The loan was granted to the borrower, who subsequently passed away, leaving guarantors liable. The guarantors argue that the suit is time-barred, emphasizing the necessity for the bank to prove deposits and extension of the loan period.
2. The guarantors contend that the loan extension was without their consent, and mere deposits by the borrower are insufficient to extend the limitation period. They stress the bank's duty to prove that deposits were made by the borrower or authorized agents. The legal provisions of the Limitation Act and Banker's Books Evidence Act are invoked to support the argument that the burden of proof lies with the bank regarding the deposits and acknowledgment of the loan.
3. The bank, on the other hand, asserts that the suit is within limitation, presuming deposits made by the borrower based on lack of denial. However, the guarantors emphasize the need for the bank to establish the authenticity of deposits, especially in the absence of denial by the deceased borrower. The bank's failure to prove deposits raises questions about the suit's validity within the limitation period.
4. Witness testimonies and evidence examination reveal discrepancies regarding the deposits, loan acknowledgment, and possession of hypothecated goods. The bank's actions in recovering the debt from the borrower and guarantors are scrutinized, with emphasis on the bank's responsibility to auction the hypothecated property for recovery. The court modifies the decree, allowing the bank to recover the debt from the hypothecated goods while dismissing the appeal on cost grounds.
5. In conclusion, the judgment delves into the complexities of proving deposits, extending the limitation period, and recovering debts from guarantors. The legal interpretations of the Limitation Act and Banker's Books Evidence Act play a crucial role in determining the suit's validity. The court's decision balances the rights and obligations of the parties involved, ensuring a fair resolution in light of the legal principles and evidence presented during the proceedings.
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2005 (4) TMI 639
Issues Involved:
1. Constitutionality of Sections 4 and 24 of the U.P. Excise Act, 1910.
2. Legitimacy of Rule 12 of the U.P. Excise Rules.
3. Validity of Notifications No. 6121 and No. 1275 issued by the State Government.
4. Legality of the orders dated 20.5.1995 and 30.5.1995 issued by the Excise Commissioner.
5. Authority of the State Government to recover duty on rectified spirit.
Issue-wise Detailed Analysis:
1. Constitutionality of Sections 4 and 24 of the U.P. Excise Act, 1910:
The petitioner challenged Sections 4 and 24 of the U.P. Excise Act, 1910, asserting that they were ultra vires the Constitution to the extent they classified rectified spirit as foreign liquor. The court examined the legislative competence of the State to regulate and levy duties on rectified spirit. It was established that the State could regulate the use of alcohol to prevent its misuse as intoxicating liquor but could not impose duties on non-potable alcohol, as affirmed in the Synthetics and Chemicals Ltd. case.
2. Legitimacy of Rule 12 of the U.P. Excise Rules:
The petitioner contended that Rule 12 of the U.P. Excise Rules was beyond the rule-making power of the State Government under the U.P. Excise Act, 1910. The court referred to the Synthetics and Chemicals Ltd. case, which clarified that the State could regulate the use of alcohol but could not impose duties on industrial alcohol. The court concluded that Rule 12 could not extend the State's power beyond its constitutional limits.
3. Validity of Notifications No. 6121 and No. 1275 issued by the State Government:
The petitioner sought to declare the notifications issued under Sections 4, 28, and 29 of the U.P. Excise Act as unconstitutional and beyond the jurisdiction of the State Government. The court reiterated the principles from the Synthetics and Chemicals Ltd. case, emphasizing that the State could not impose duties on industrial alcohol. Thus, the notifications were deemed invalid to the extent they imposed such duties.
4. Legality of the orders dated 20.5.1995 and 30.5.1995 issued by the Excise Commissioner:
The petitioner challenged the orders demanding excise duty on rectified spirit lost in transit due to an accident. The court analyzed several precedents, including Modi Distilleries and Deccan Sugar and Abkari Co. Ltd., which held that the State could not levy excise duty on industrial alcohol. The court found that the demand for duty on transit loss was not justified and quashed the orders.
5. Authority of the State Government to recover duty on rectified spirit:
The court examined whether the State had the authority to recover duty on rectified spirit, particularly in cases of transit loss. It was established that rectified spirit, being non-potable, could not be subjected to excise duty by the State. The court relied on the Deccan Sugar and Abkari Co. Ltd. case, which explicitly stated that no duty on wastage of rectified spirit could be levied by the State Government. Consequently, the court concluded that the State lacked the legislative competence to demand such duties.
Conclusion:
The writ petition was allowed, and the impugned demand notices dated 20.5.1995 and 30.5.1995 were quashed. The court reaffirmed that the State Government could not levy excise duty on rectified spirit, as it was not a potable liquor. The judgment underscored the constitutional limitations on the State's power to impose such duties and the necessity of adhering to established legal precedents.
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2005 (4) TMI 638
The Supreme Court granted bail to the petitioner involved in a TADA offence. The petitioner must report to the police weekly, stay within Thane's jurisdiction, and surrender travel documents to the TADA Special Judge.
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2005 (4) TMI 637
Issues Involved:
1. Charges against the accused under various sections of IPC and Arms Act.
2. Conviction and sentencing by the Additional Sessions Judge.
3. Acquittal and re-conviction by the High Court.
4. Prosecution's narrative of events.
5. Injuries sustained by the accused.
6. Police investigation and first information report.
7. Plea of private defense by the accused.
8. High Court's view on private defense.
9. Analysis of the evidence and scene of the offense.
10. Injuries on the accused and their implications.
11. Application of Exception 4 to Section 300 IPC.
Detailed Analysis:
1. Charges against the accused under various sections of IPC and Arms Act:
Four persons, including the two appellants, faced charges under Sections 302/34, 307/34, and Section 326 IPC, and under Section 25(1)(b) and Section 30 of the Arms Act for the fatal assault on Bajirao and Krishna on 18.8.1984 in Walkewadi.
2. Conviction and sentencing by the Additional Sessions Judge:
The Additional Sessions Judge, Kolhapur, convicted accused Nos. 1 to 4 under Section 302 read with Section 34. Accused Nos. 1 & 2 were alternatively convicted under Section 302 IPC individually. Accused Nos. 1 & 2 were also convicted under Section 25(1)(b) and Section 30 of the Arms Act, respectively. A4 was convicted under Section 324 IPC. All were sentenced to life imprisonment.
3. Acquittal and re-conviction by the High Court:
The High Court acquitted accused Nos. 1 to 4 for the offenses under Section 302 read with Section 34. However, appellant No. 2 (A-3) was convicted under Section 302 IPC, and appellant No. 1 (A-1) under Section 304 Part I IPC, sentencing them to life imprisonment and ten years of rigorous imprisonment, respectively. The conviction of accused No. 1 under Section 25(1)(a) of the Arms Act was maintained. The fourth accused's conviction under Section 324 was upheld.
4. Prosecution's narrative of events:
The deceased and the accused belonged to nearby villages. There was a quarrel over grazing cattle on the night of 18th/19th August 1984. The next day, the deceased and their family, armed with axes and sticks, went to Walkewadi for weeding operations. They were attacked by the accused, who were armed with guns, axes, and sticks. Accused No. 1 fired a gun in the air, and accused No. 3 inflicted fatal injuries on Bajirao with an axe. Accused No. 1 then attacked Krishna with an axe, resulting in his death the next day.
5. Injuries sustained by the accused:
Accused Nos. 1, 2, and 3, along with four others, sustained injuries during the incident. The injuries included incised wounds, contusions, and abrasions.
6. Police investigation and first information report:
PW12, a Head Constable, recorded the statement of PW10 at the hospital, which formed the basis of the first information report. The case was transferred to Kodoli police station. PW17, the Sub-Inspector, continued the investigation, seizing weapons and recording witness statements. A counter-complaint was lodged by the second accused, alleging assault by the deceased and their associates.
7. Plea of private defense by the accused:
During examination under Section 313 Cr.P.C., the appellants claimed private defense, stating that the deceased and their associates attacked them first, and they acted to protect themselves. They denied the presence of lady witnesses at the scene.
8. High Court's view on private defense:
The High Court accepted the plea of private defense, concluding that the deceased and their associates were the aggressors. However, it found that accused No. 3 (second appellant) exceeded the right of private defense by inflicting more harm than necessary.
9. Analysis of the evidence and scene of the offense:
The High Court's view on private defense was not supported by the evidence. The incident occurred in a public street, not within the premises of the accused. The trial court's detailed analysis and findings regarding the scene of the offense were not contradicted by the High Court.
10. Injuries on the accused and their implications:
The injuries on the accused were not explained by the prosecution. The incident involved a sudden quarrel and free fight between the parties. The attack by the appellants was not premeditated, and both parties inflicted injuries on each other. The incident was of short duration, and the accused fled the scene immediately after the fight.
11. Application of Exception 4 to Section 300 IPC:
The court considered whether the appellants acted in a cruel or unusual manner. It concluded that accused No. 3 (second appellant) did not act in a cruel manner, despite causing severe injuries. Accused No. 1 (first appellant) was found guilty under Section 304 Part II IPC, as he acted with knowledge that his actions were likely to cause death but without the intention to cause death.
Conclusion:
The Supreme Court modified the judgment of the High Court. Appellant No. 2 (A-3) was convicted under Section 304 Part I IPC and sentenced to eight years of rigorous imprisonment and a fine of Rs. 1,000. Appellant No. 1 (A-1) was convicted under Section 304 Part II IPC and sentenced to five years of imprisonment and a fine of Rs. 1,000. The appeal was partly allowed.
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2005 (4) TMI 636
Issues:
1. Whether an intimation received by the assessee under Section 143(1) of the Income Tax Act, 1961 could be revised by the Commissioner of Income-tax under Section 264 of the Act after 1.6.1999 when the explanation to Section 143 of the Act had been deleted by the Finance Act, 1999 with effect from 1.6.1999.
Detailed Analysis:
The judgment by the Karnataka High Court dealt with the issue of whether an intimation received by the assessee under Section 143(1) of the Income Tax Act, 1961 could be revised by the Commissioner of Income-tax under Section 264 of the Act after 1.6.1999 following the deletion of the explanation to Section 143 of the Act by the Finance Act, 1999. The Court noted that the relevant assessment years were 1998-99, 1999-2000, and 2000-01, where the income tax returns of the assessee were processed under Section 143(1) of the Act, and intimations were sent. The assessee filed revision petitions before the Commissioner of Income Tax under Section 264 of the Act, which were dismissed on the grounds that they were not maintainable due to the deletion of the explanation to Section 143 after 1.6.1999.
The Court referred to the provisions of Section 264 of the Act, which empower the Commissioner to revise orders passed by subordinate authorities. However, the Court highlighted that the explanation to Section 143 deemed the intimation sent to the assessee as an order for the purpose of Section 264. The Court emphasized that the deletion of this explanation by the Finance Act, 1999 meant that the intimation under Section 143 ceased to be an order eligible for revision under Section 264 after 1.6.1999. Consequently, any intimation received by the assessee after this date could not be revised by the Commissioner of Income Tax.
In conclusion, the Court held that the Commissioner was correct in rejecting the revision petitions challenging the intimations received after 1.6.1999 for the relevant assessment years. The judgment allowed the writ appeals, set aside the order of the single Judge, and dismissed the writ petitions, leaving the parties to bear their own costs.
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2005 (4) TMI 635
Power under Order 1 Rule 10 of the CPC - Whether in a suit for specific performance of contract for sale of a property instituted by a purchaser against the vendor, a stranger or a third party to the contract, claiming to have an independent title and possession over the contracted property, is entitled to be added as a party/defendant in the said suit - HELD THAT:- In our opinion, the respondent Nos. 1 and 4 to 11 are not necessary parties as effective decree could be passed in their absence as they had not purchased the contracted property from the vendor after the contract was entered into. They were also not necessary parties as they would not be affected by the contract entered into between the appellant and the respondent Nos. 2 and 3.
It may be reiterated here that if the appellant who has filed the instant suit for specific performance of contract for sale even after receiving the notice of claim of title and possession by the respondent Nos. 1 and 4 to 11 does not want to join the respondent Nos. 1 and 4 to 11 in the pending suit, it is always done at the risk of the appellant because he cannot be forced upon to join the respondent Nos 1 and 4 to 11 as party- defendants in such suit.
In the case of Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and Ors.[1992 (3) TMI 356 - SUPREME COURT], on the question of jurisdiction this Court clearly has laid down that it is always open to the court to interfere with an order allowing an application for addition of parties when it is found that the courts below had gone wrong in concluding that the persons sought to be added in the suit were necessary or proper parties to be added as defendants in the suit instituted by the plaintiff appellant. In that case also this Court interfered with the orders of the courts below and rejected the application for addition of parties. Such being the position, it can no longer be said that this Court cannot set aside the impugned orders of the courts below on the ground that jurisdiction to invoke power under Order 1 Rule 10 of the CPC has already been exercised by the two courts below in favour of the respondent Nos. 1 and 4 to 11.
Thus, in our view, the stranger to the contract, namely, the respondent Nos. 1 and 4 to 11 making claim independent and adverse to the title of respondent Nos. 2 and 3 are neither necessary nor proper parties, and therefore, not entitled to join as party defendants in the suit for specific performance of contract for sale.
The judgments and orders of the High Court and the trial court are therefore liable to be set aside. The impugned orders are thus set aside and the application for addition of parties filed at the instance of respondent Nos. 1 and 4 to 11 stands rejected. The appeal is thus allowed. We, however, make it clear that we have not decided in this judgment as to the title and possession of respondent Nos. 1 and 4 to 11 of the suit property and all such questions are kept open in the event any approach is made either by the respondent Nos. 1 and 4 to 11 or by the appellant in any appropriate court.
There will be no order as to costs.
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