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2007 (4) TMI 786
Issues Involved:
1. Jurisdiction and maintainability of the appeal under Section 10F of the Companies Act, 1956.
2. Alleged oppression and mismanagement under Sections 397 and 398 of the Companies Act, 1956.
3. Use of the trade name "Starlinger" and its implications on intellectual property rights.
4. Amendment of the objects clause in the Memorandum of Association.
5. Valuation of shares and the rights of minority shareholders.
Issue-wise Detailed Analysis:
1. Jurisdiction and Maintainability of the Appeal:
The respondent argued that the appeal under Section 10F of the Companies Act is maintainable only on a question of law. It was contended that the issues raised were questions of fact, not law. The Supreme Court's precedent in Meenakshi Mills was referenced, which delineates the distinction between questions of law and fact. The Court held that the construction of a statute or document and the legal effect of facts found are mixed questions of law and fact. The Court concluded that the appeal was maintainable as the issues involved were intertwined with legal interpretations, particularly concerning the alleged oppression and mismanagement.
2. Alleged Oppression and Mismanagement:
The appellant alleged oppression and mismanagement under Sections 397 and 398, claiming that the respondents' actions prejudiced the minority shareholders. The CLB's role in protecting the company's interests was emphasized, but it was argued that the CLB failed to protect the minority shareholder's intellectual property rights. The appellant highlighted the unfair prejudice caused by the respondents' actions, asserting that the CLB's decision was contrary to settled judicial principles. The Court noted that the CLB must consider the broader implications of its decisions, including the rights of minority shareholders, beyond the immediate interests of the company.
3. Use of the Trade Name "Starlinger":
The appellant challenged the respondents' continued use of the trade name "Starlinger" after the termination of the agreement. The Court recognized that the right to use the name was granted under the joint venture agreement, which had expired. Citing precedents, the Court emphasized that the use of the name without permission constituted a violation of the appellant's intellectual property rights. The Court concluded that the respondents' continued use of the name "Starlinger" was unjustified and directed the respondents to cease using the name for products not covered by the original agreement.
4. Amendment of the Objects Clause:
The amendment to the objects clause in the Memorandum of Association was contested by the appellant, who argued that it was passed with the aid of an illegal injunction. The CLB permitted the amendment, allowing the company to commence new business activities. The appellant contended that this amendment was detrimental to its interests, as it allowed the respondents to engage in activities beyond the scope of the original agreement. The Court found that the CLB erred in its decision, failing to protect the appellant's interests adequately.
5. Valuation of Shares and Rights of Minority Shareholders:
The valuation of shares was a significant point of contention, with the appellant seeking a fair valuation based on the agreement. The respondents argued that the share value was negative after adjustments. The Court emphasized the need for a fair valuation process, considering the appellant's contributions to the joint venture. The Court recognized the appellant's right to a fair exit from the joint venture, ensuring that the valuation process reflects the true value of the shares, including the goodwill associated with the trade name "Starlinger."
In conclusion, the Court allowed the appeal, issuing injunctions against the respondents to prevent the use of the trade name "Starlinger" for unauthorized products and restricting the manufacture of goods not covered by the original agreement. The appellant was awarded costs for pursuing the proceedings, and the Court underscored the necessity for a fair valuation of shares to protect the rights of minority shareholders.
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2007 (4) TMI 785
Issues:
Partition and rendition of accounts, Compromise application under Order XXIII Rule 3 CPC, Requirement of stamp duty on decree of partition, Validity of oral family settlement, Registration requirement for decree of partition.
Analysis:
The case involved a suit for partition and rendition of accounts filed by the appellant and five others against other family members. Subsequently, the parties entered into a compromise under Order XXIII Rule 3 of the CPC, detailing the distribution of moveable and immovable properties as part of an oral family settlement. The compromise application was accepted by the court, but the Registry required payment of stamp duty and a valuation report before issuing the decree-sheet.
The appellant's application to waive the stamp duty requirement was dismissed by the Single Judge, who emphasized the need for compliance with stamp duty regulations for instruments of partition. The judgment highlighted the distinction between oral family settlements and formal instruments of partition, stating that stamp duty is not applicable to oral partitions but is mandatory for decrees of partition.
The court referenced various legal precedents to support the distinction between oral family settlements and formal instruments of partition. It clarified that a decree of partition constitutes an instrument of partition under the Stamp Act, necessitating stamp duty payment. However, an oral family settlement, even if recorded in writing, does not require stamp duty.
In this case, the court concluded that the compromise application merely declared the existing oral family settlement without creating a new partition instrument. Therefore, the court's declaration did not amount to a decree of partition requiring stamp duty. The judgment further explained the registration requirements for decrees of partition under the Registration Act, exempting certain court decrees from compulsory registration.
Ultimately, the High Court set aside the Single Judge's order, allowing the appeal and emphasizing that no costs were to be awarded. The judgment provided detailed legal analysis regarding the distinction between oral family settlements and formal instruments of partition, clarifying the stamp duty and registration requirements applicable to each.
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2007 (4) TMI 784
Issues Involved:
1. Regularization of services of daily-rated Malies.
2. Equal pay for equal work.
3. Artificial breaks in service.
4. Creation of posts and payment of regular salaries.
Detailed Analysis:
1. Regularization of Services of Daily-Rated Malies:
The primary issue was whether daily-rated Malies working for Hindustan Aeronautics Ltd. (HAL) should be regularized. The petitioner union argued that their members had worked continuously for more than 240 days each year and were entitled to regularization. The appellant HAL countered that the work was intermittent and not sufficient to justify regular employment. The Supreme Court held that completion of 240 days in a year does not confer a right to regularization under the Industrial Disputes Act. The Court reiterated that regularization can only be done in accordance with statutory rules and not de hors the rules. The Court referenced previous judgments, including *Madhyamik Shiksha Parishad v. Anil Kumar Mishra* and *Indian Drugs and Pharmaceuticals Ltd. v. Workman*, to support this conclusion.
2. Equal Pay for Equal Work:
The petitioner union contended that daily-rated Malies were performing the same duties as regular Malies but were paid less. The Supreme Court did not specifically address this issue in isolation but implied that without regularization, the claim for equal pay could not stand. The Court emphasized that the legal position of an employee in an industrial establishment is different from that of a government servant, who enjoys a status and security of tenure.
3. Artificial Breaks in Service:
The petitioner union claimed that HAL created artificial breaks in service to deprive workers of continuity and regularization. The learned Single Judge initially found merit in this argument, directing HAL to absorb the petitioners as regular employees if perennial work was available. However, the Supreme Court overturned this, stating that the creation and abolition of posts and regularization are purely executive functions. The Court held that judicial directions to absorb employees or pay regular salaries encroach upon executive functions.
4. Creation of Posts and Payment of Regular Salaries:
The High Court had directed HAL to create posts and pay regular salaries to the petitioners. The Supreme Court set aside this direction, emphasizing that the judiciary cannot create posts where none exist. The Court referenced *P.U. Joshi v. Accountant General, Ahmedabad* and *Secretary, State of Karnataka v. Uma Devi* to support its stance that such actions are executive functions and should not be performed by the judiciary. The Court concluded that unless there exists some statutory rule, no direction can be issued for continuation in service or payment of regular salary to a casual, ad hoc, or daily rate employee.
Conclusion:
The Supreme Court allowed the appeals, setting aside the judgments of the learned Single Judge and the Division Bench. The writ petitions filed by the respondents were dismissed. The Court made it clear that any violation of the terms of the settlements by HAL could be addressed in accordance with the law. No costs were awarded.
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2007 (4) TMI 783
Issues Involved:
1. Maintainability of the writ petitions as Public Interest Litigation (PIL) in light of the Supreme Court's judgment in T.N. Godavarman Thirumulpad v. Union of India and Ors.
2. Procedural impropriety in the allotment of land to M/s. Maruti Clean Coal and Power Ltd.
3. Environmental impact and pollution concerns due to the coal washery project.
4. Ownership and jurisdictional issues regarding the land in question.
Summary:
1. Maintainability of the Writ Petitions as PIL:
The Full Bench was constituted to address whether the writ petitions should be dismissed in limine based on the Supreme Court's order in T.N. Godavarman Thirumulpad v. Union of India and Ors. dated 10th April 2006. The Full Bench concluded that the Supreme Court's order did not adjudicate on the bona fides or credentials of the petitioners in these writ petitions, nor did it express any opinion on other aspects except that the land in question is not forest land. Therefore, the writ petitions are not liable to be dismissed in limine without examining the merits of the cases.
2. Procedural Impropriety in Land Allotment:
The writ petitions questioned the allotment of land to M/s. Maruti Clean Coal and Power Ltd. on the grounds of procedural impropriety and violation of mandatory provisions. The petitioners argued that the lease was granted without the necessary permissions and in disregard of established rules and procedures. The Full Bench noted that the Supreme Court had not commented on the procedural aspects of the land allotment in its judgment.
3. Environmental Impact and Pollution Concerns:
The petitioners raised concerns about the environmental impact and increased pollution due to the coal washery project. They argued that the project would adversely affect the environment and the health of the residents in the area. The Full Bench did not delve into these issues as the reference was limited to the maintainability of the writ petitions as PIL.
4. Ownership and Jurisdictional Issues:
The petitioners contended that the land in question belonged to South Eastern Coal Fields Limited (S.E.C.L.) and that the State Government was not competent to lease the land without prior permission from the Central Government. The Full Bench acknowledged that a suit regarding the title of the land was already pending in the Civil Court at Katghora. The Supreme Court had also noted that the title dispute was not an issue before it in the Godavarman case.
Conclusion:
The Full Bench answered the reference in the negative, stating that the writ petitions are not liable to be dismissed in limine based on the Supreme Court's order in the Godavarman case. The matters were directed to be placed before the Chief Justice for further proceedings in accordance with the Supreme Court's order dated 2-2-2007.
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2007 (4) TMI 782
Issues Involved:
1. Legality of investigation by the Bureau of Investigation.
2. Authority and jurisdiction of the Bureau of Investigation.
3. Sanction for prosecution.
4. Involvement and liability of the petitioners.
Detailed Analysis:
1. Legality of Investigation by the Bureau of Investigation:
The petitioners argued that the investigation conducted by the Bureau of Investigation was illegal as it had no authority to investigate offences under the Indian Penal Code (IPC). The FIR was registered under various sections of the West Bengal Sales Tax Act, 1994, and the IPC. The learned Advocate for the petitioners contended that only police officers could investigate offences under the IPC, not the Bureau. The Court agreed with this view, stating that the Bureau could investigate matters related to tax evasion under the Sales Tax Act but had no jurisdiction over IPC offences. The investigation by the Bureau was deemed improper and without jurisdiction.
2. Authority and Jurisdiction of the Bureau of Investigation:
The Court examined the provisions of the Sales Tax Act, particularly Section 7, which outlines the Bureau's powers. The Bureau was established for enforcing provisions related to tax evasion and malpractices connected therewith. The Court clarified that while the Bureau could investigate tax-related offences, it could not investigate IPC offences. The Bureau's officers were not recognized as regular police officers with the power to investigate under the Code of Criminal Procedure (CrPC). The Court emphasized that the Bureau must operate within the confines of the Sales Tax Act and could not extend its jurisdiction to IPC offences.
3. Sanction for Prosecution:
The Court noted that Section 88(12) of the Sales Tax Act requires prior sanction from the Commissioner for prosecuting offences under the Act. The sanction granted by the Commissioner did not include the petitioners, making the prosecution against them invalid. The Court highlighted that the Commissioner could only sanction prosecutions related to the Sales Tax Act, not IPC offences. Consequently, the initiation of proceedings against the petitioners was deemed improper due to the lack of proper sanction.
4. Involvement and Liability of the Petitioners:
The petitioners were not named in the FIR and had no direct involvement in the alleged incident. They were employees of the proprietor and had no responsibility for paying sales tax. The Court found no evidence linking the petitioners to the alleged tax evasion. The continuation of criminal proceedings against them was considered an abuse of the process of law. The Court set aside the chargesheet and the order of cognizance against the petitioners, as well as the warrant of arrest issued against them.
Conclusion:
The Court concluded that the Bureau of Investigation had no authority to investigate IPC offences and that the investigation conducted by the Bureau was illegal. The sanction for prosecution was defective, and the proceedings against the petitioners were improper. The Court partially allowed the revisional application, setting aside the chargesheet and related orders against the petitioners while reserving its opinion on the investigation against other accused persons. The Court directed the Criminal Section to forward copies of the order to relevant judicial authorities for necessary action.
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2007 (4) TMI 781
Issues Involved:
1. Whether the writ petitions should be dismissed due to the existence of an alternative remedy.
2. Whether the scheme of arrangement sanctioned by the court qualifies as an instrument and a conveyance under the UP Stamp Act.
3. Whether such a scheme is covered by Article 23 of Schedule 1-B of the UP Stamp Act.
Detailed Analysis:
Point 1: No Dismissal on Ground of Alternative Remedy
The court addressed whether the writ petitions should be dismissed due to the availability of an alternative remedy. In WP No. 41811 of 2006, the petitioner was not given a reasonable opportunity to present their case due to various procedural lapses, including strikes and lack of proper notice. The court held that the lack of reasonable opportunity made the alternative remedy an inadequate option. For other writ petitions, the court noted that the issue at hand was a common question of law regarding the applicability of stamp duty under Article 23 of Schedule 1-B of the UP Stamp Act, which justified not dismissing the petitions on the ground of alternative remedy.
Point 2: Scheme of Arrangement as a Conveyance
The court examined whether the scheme of arrangement, including demerger and merger, is an instrument and a conveyance under the UP Stamp Act. The petitioners argued that such schemes are orders of the court and not instruments or conveyances. They cited various legal precedents and definitions to support their claim. However, the court referred to the Supreme Court rulings in the Ruby Sales case and the Hindustan Lever case, which held that schemes of amalgamation are instruments and conveyances as they involve the transfer of property based on an agreement between companies, sanctioned by the court. The court concluded that the scheme of arrangement is indeed an instrument and a conveyance under section 2(10) of the UP Stamp Act.
Point 3: Duty Not Chargeable Under Article 23 Schedule 1-B
The court deliberated on whether the scheme of arrangement falls under Article 23 of Schedule 1-B of the UP Stamp Act, which pertains to conveyances of immovable and movable property. The petitioners contended that such schemes are not covered by this article and that no stamp duty should be charged unless explicitly provided for. The standing counsel argued that the scheme could be split into transfers of immovable and movable assets, each chargeable under Article 23(a) and 23(b) respectively. The court, however, held that the scheme of arrangement, which involves the transfer of a going concern including intangible rights and liabilities, cannot be split up as suggested. The court emphasized that such schemes are a class apart and do not fall under Article 23 of Schedule 1-B of the UP Stamp Act. The court noted the absence of any precedent for charging stamp duty on such schemes in the state and highlighted the need for legislative clarity on the matter.
Conclusion:
1. The writ petitions should not be dismissed on the ground of alternative remedy.
2. The scheme of arrangement sanctioned by the court is an instrument and conveyance within the meaning of section 2(10) of the UP Stamp Act.
3. The scheme of arrangement is not covered by Article 23 of Schedule 1-B of the UP Stamp Act.
Separate Opinion:
Hon'ble Ran Vijai Singh, J. agreed with the conclusions on points one and two but differed on point three, holding that the scheme of arrangement is covered by Article 23 of Schedule 1-B of the UP Stamp Act. The matter was referred to Hon'ble the Chief Justice for the nomination of a third judge due to the difference in opinion. The interim order was extended until further court orders.
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2007 (4) TMI 780
Issues involved: Interpretation of Section 139 of the Negotiable Instruments Act in cases of bounced cheques issued to family members.
In the judgment by the Andhra Pradesh High Court, the petitioner, who is the accused in multiple cases under Section 138 of the Negotiable Instruments Act, issued cheques to his wife and sons which were later bounced. The petitioner claimed that the cheques were stolen by the complainants and presented to the bank without his consent. However, the court noted that under Section 139 of the Act, there is a presumption in favor of the holder of a cheque that it was issued for the discharge of a debt or liability. The burden is on the petitioner to rebut this presumption with evidence during the trial, and at the current stage, the proceedings cannot be quashed. The court dismissed the criminal petitions, emphasizing that the issue of how the cheques came into the hands of the complainants is a question of fact to be determined during the trial.
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2007 (4) TMI 779
Issues Involved:
1. Delay Condonation and Leave Granting
2. Appointment of Arbitrator by High Court
3. Compliance with Arbitration Clause 29 of the Contract
4. Furnishing of Security Deposit by Contractor
5. Justification of High Court's Appointment of Arbitrator
6. Examination of Section 11(6)(c) of the Arbitration and Conciliation Act, 1996
Summary:
1. Delay Condonation and Leave Granting:
The Supreme Court condoned the delay and granted leave to appeal against the judgments and final orders dated 29th July 2004 and 8th April 2005 by the High Court of Madhya Pradesh.
2. Appointment of Arbitrator by High Court:
The High Court appointed Mr. Justice B.C. Verma, a retired Chief Justice, as the sole arbitrator to adjudicate disputes between the appellants and the respondent. The appellants' application for review and/or recall of this order was rejected by the High Court.
3. Compliance with Arbitration Clause 29 of the Contract:
Clause 29 of the contract specified that disputes should be referred to the City Engineer first, and if unresolved, to an Arbitration Board constituted by the Corporation. The High Court directed the appellant to invoke the arbitration clause and appoint an arbitrator in compliance with Clause 29.
4. Furnishing of Security Deposit by Contractor:
Clause 29(d) required the contractor to furnish a security deposit before arbitration could proceed. The respondent had not furnished this security deposit, which was a prerequisite for the Corporation's obligation to constitute an Arbitration Board.
5. Justification of High Court's Appointment of Arbitrator:
The Supreme Court held that the High Court was not justified in appointing a retired Chief Justice as the sole arbitrator, as it was contrary to Clause 29 of the contract. The High Court should have ensured compliance with the arbitration agreement, which required the contractor to furnish a security deposit.
6. Examination of Section 11(6)(c) of the Arbitration and Conciliation Act, 1996:
Section 11(6)(c) allows a party to request the Chief Justice to take necessary measures if the agreed appointment procedure is not followed. However, the agreement provided other measures for securing the appointment, which should have been followed.
Conclusion:
The Supreme Court set aside the High Court's order appointing a retired Chief Justice as the arbitrator. The respondent was directed to furnish the security deposit within six weeks, and the Corporation was to constitute an Arbitration Board within three months. The Arbitration Board was to proceed from the stage reached by the previously appointed arbitrator. The appeal was disposed of with no order as to costs.
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2007 (4) TMI 778
Issues involved:
The judgment involves issues related to mutation of land in Revenue Records, validity of a Will, entitlement to compensation under Land Acquisition Act, and dismissal of a civil suit challenging the Will.
Mutation in Revenue Records:
The High Court confirmed the mutation of land in Revenue Records in favor of respondent No. 5, based on a Will purportedly executed by deceased Ratni Devi. The appellants alleged that the mutation was done without notice to them and without following principles of natural justice. Appeals to higher authorities were unsuccessful, leading to a writ petition in the High Court, which was also dismissed. The Supreme Court held that the mutation was done based on the Will and did not find any illegality in the actions of the Revenue Authorities.
Validity of Will:
The main question revolved around the genuineness of the Will dated April 14, 1989, allegedly executed by Ratni Devi in favor of respondent No. 5. The Supreme Court emphasized that the validity and genuineness of the Will should be decided by a competent Civil Court. A civil suit challenging the Will was dismissed on grounds of limitation, with an appeal pending in the High Court. The Supreme Court refrained from expressing any opinion on the validity of the Will, stating that it should be decided by the High Court where the matter is pending.
Entitlement to Compensation:
The appellants, as heirs of Ratni Devi, claimed entitlement to compensation under the Land Acquisition Act, asserting their rights as the real heirs. Despite their claim, a substantial amount was paid to respondent No. 5. The Supreme Court did not delve into the issue of compensation, stating that all questions regarding entitlement would be decided in appropriate proceedings by competent authorities or courts without being influenced by the present judgment.
Dismissal of Civil Suit:
The appellants filed a civil suit challenging the validity of the Will but faced dismissal on the grounds of limitation. An appeal against the dismissal was pending in the High Court. The Supreme Court dismissed the appeal, clarifying that it did not express any opinion on the correctness or genuineness of the Will. The Court maintained that the pending appeal in the High Court would be decided on its own merits without influence from the current judgment. All contentions of the parties were kept open for determination in appropriate proceedings.
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2007 (4) TMI 777
Issues Involved:
1. Whether pre-election disqualification can be adjudicated only in an election petition before the District Judge under Section 43 of the Rajasthan Panchayati Raj Act, 1994 read with rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994.
2. Whether pre-election disqualification can also be adjudicated by the authority under rule 23 of the Rajasthan Panchayati Raj Rules, 1996 read with Section 39 (2) of the Rajasthan Panchayati Raj Act, 1994.
Detailed Analysis:
1. Adjudication of Pre-Election Disqualification through Election Petition:
The court examined whether pre-election disqualification could be challenged exclusively through an election petition under Section 43 of the Rajasthan Panchayati Raj Act, 1994, read with rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994. Section 43 provides that an election under the Act or the rules made thereunder may be called into question by any candidate at such election by presenting a petition to the District Judge having jurisdiction. Rule 80 specifies the grounds for challenging an election, including the disqualification of a returned candidate on the date of election. The court emphasized that Section 117 of the Act, which bars interference by courts in certain matters, reinforces that no election to any Panchayati Raj Institution shall be called into question except by an election petition presented to the prescribed authority. Thus, the court concluded that pre-election disqualification is a ground for challenging the election through an election petition before the District Judge.
2. Adjudication of Pre-Election Disqualification by Authority under Rule 23:
The court analyzed whether pre-election disqualification could also be adjudicated by the authority under rule 23 of the Rajasthan Panchayati Raj Rules, 1996, read with Section 39 (2) of the Rajasthan Panchayati Raj Act, 1994. Section 39 deals with the cessation of membership and includes grounds for ineligibility to continue as a member, such as disqualifications specified in Section 19. Rule 23 outlines the procedure for removal in case of disqualification, including pre-election disqualification. However, the court noted that the rule cannot exceed the scope of the corresponding provision of the Act. The court held that Section 39(2) is limited to post-election disqualifications and does not extend to pre-election disqualifications. Therefore, any enquiry under rule 23 regarding pre-election disqualification would be ultra vires the Act.
Conclusion:
The court concluded that pre-election disqualification can be adjudicated only in an election petition before the District Judge under Section 43 of the Rajasthan Panchayati Raj Act, 1994, read with rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994. It cannot be adjudicated by the authority under rule 23 of the Rajasthan Panchayati Raj Rules, 1996, read with Section 39 (2) of the Rajasthan Panchayati Raj Act, 1994. The court allowed the special appeal by the successful candidate and set aside the order of the learned Single Judge, while dismissing the appeals by the complainant and the State. The writ petitions were directed to be listed before the Single Bench for disposal in accordance with this judgment.
Separate Judgment by Ajay Rastogi, J.:
Ajay Rastogi, J., disagreed with the majority view and delivered a separate judgment. He opined that pre-election disqualification could be examined by the competent authority under Section 39(2) of the Act, 1994, read with rule 23 of the Rules, 1996. He emphasized that the Constitution provides separate remedies for different situations: election disputes under Article 243-O(b) and disqualifications under Article 243F. He argued that pre-election disqualification could be a ground for action under Section 39(2) notwithstanding the remedy of an election petition under Section 43. He concluded that pre-election disqualifications could be examined by the competent authority under Section 39(2) and that the legislative intent to provide such a mechanism should not be frustrated.
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2007 (4) TMI 776
Issues Involved:
1. Ownership of the suit property.
2. Possession of the suit property.
3. Interference with possession by the defendant.
4. Notice under Section 125 of the Karnataka Co-operative Societies Act.
5. Validity of the sale deed in favor of the plaintiff.
6. Unilateral cancellation of the sale deed by the defendant.
7. Barred by limitation.
8. Sufficiency of court fee.
Issue-wise Detailed Analysis:
1. Ownership of the Suit Property:
The plaintiff claimed ownership of the property through a series of registered sale deeds, starting from the defendant to C. Janardhan Rao, then to P. Noorulla Bhasha, and finally to the plaintiff. The Trial Court held that the plaintiff proved his ownership of the suit property. The defendant's contention that the sale deed was void due to non-compliance with the society's bye-laws was dismissed, as the bye-laws do not have the force of law and only govern internal management.
2. Possession of the Suit Property:
The plaintiff demonstrated possession through various documents, including the sale deeds and possession certificates. The Trial Court found that the plaintiff was in lawful possession of the property, which was not effectively challenged by the defendant.
3. Interference with Possession by the Defendant:
The plaintiff alleged that the defendant obstructed his construction activities and claimed that the property was not rightfully his. The Trial Court accepted the plaintiff's evidence of interference by the defendant and granted an injunction restraining the defendant from interfering with the plaintiff's possession.
4. Notice under Section 125 of the Karnataka Co-operative Societies Act:
The plaintiff issued a notice under Section 125 to the Registrar of Co-operative Societies, which the Trial Court found to be in conformity with the law. The defendant's challenge to the notice's validity was rejected.
5. Validity of the Sale Deed in Favor of the Plaintiff:
The defendant argued that the sale deed to C. Janardhan Rao was void as he was not a member of the society. The Trial Court found that the sale deed was executed by authorized office bearers of the society and was valid. The sale to non-members was not expressly prohibited by the bye-laws, making the transaction lawful and enforceable.
6. Unilateral Cancellation of the Sale Deed by the Defendant:
The defendant unilaterally canceled the sale deed to C. Janardhan Rao, claiming it was void. The Trial Court held that such unilateral cancellation was invalid. The proper procedure under Section 31 of the Specific Relief Act requires a court order to cancel a deed. The cancellation deed executed by the defendant was deemed illegal and not binding on the plaintiff.
7. Barred by Limitation:
The defendant contended that the suit was barred by time. The Trial Court found that the suit was filed within the permissible period, and the plaintiff's claim was not barred by limitation.
8. Sufficiency of Court Fee:
The defendant argued that the court fee paid was insufficient. The Trial Court determined that the court fee paid by the plaintiff was adequate and in accordance with the law.
Conclusion:
The High Court upheld the Trial Court's judgment, affirming the plaintiff's ownership and possession of the property, the invalidity of the unilateral cancellation deed by the defendant, and the sufficiency of the court fee. The appeal was dismissed, and the injunction against the defendant was sustained.
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2007 (4) TMI 775
Issues involved: Bail application rejection, consideration of nature and gravity of offence, judicial propriety in bail decision, credibility and reliability of witnesses, sustainability of bail order.
Bail Application Rejection: Respondent No. 3, accused u/s 302/120B IPC, had his bail application rejected by trial Court, High Court, and Supreme Court. Subsequent bail application was also unsuccessful, leading to filing of Misc. Criminal Case No. 850/2006 before the Chief Justice of Chhattisgarh High Court, who granted bail to the accused.
Consideration of Nature and Gravity of Offence: The accused was involved in the murder of a rival political leader during an election campaign. The primary consideration in granting bail for non-bailable offences is the nature and gravity of the offence, which was not adequately considered by the Chief Justice while granting bail.
Judicial Propriety in Bail Decision: The Chief Justice's decision to grant bail seemed to involve a detailed scrutiny of evidence and a determination of the case's merit, which goes against legal principles and judicial propriety. The Chief Justice's observations and findings virtually amounted to acquitting the accused before trial, which could prejudice the prosecution case.
Credibility and Reliability of Witnesses: The Chief Justice's findings on the credibility and evidential value of witnesses during the bail consideration stage were deemed inappropriate. Such assessments should be reserved for the trial stage, and the bail decision should focus on establishing a prima facie case for bail, not on evaluating witness credibility.
Sustainability of Bail Order: The Supreme Court set aside the bail granted by the Chief Justice, canceling the bail bonds and directing the accused to be taken back into custody. The Court clarified that this decision did not reflect on the case's merit or the credibility of prosecution witnesses. The Chief Justice's detailed findings at the bail stage were considered unsustainable in law.
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2007 (4) TMI 774
The Supreme Court of India admitted the appeal in the case. The judges were Justice A.K. Mathur and Justice Dalveer Bhandari. The legal representatives for both the Appellant and the Respondent were present during the hearing.
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2007 (4) TMI 773
Issues Involved: Appeal against order setting aside service tax liability and penalty imposition.
Service Tax Liability Issue:
The appeal was filed by the Revenue against the order setting aside the service tax liability and penalty imposed on the respondents for security services provided to government agencies. The adjudicating authority confirmed a demand of Rs. 3,80,096/- and imposed penalties under Section 78 and Section 76 of the Finance Act, 1994. The respondents presented certificates from Chartered Accountants showing reduced tax liability. The Commissioner (Appeals) reduced the service tax liability stating that the department failed to provide evidence of realization of billed amounts. The Revenue filed an appeal relying on certificates from MSEB and Central Railway Divisional Office, alleging suppression of service value to evade tax. However, these certificates were issued after the adjudication order, which is against the principle that appeals should be based on the same documents available during adjudication. Consequently, the appeal by the Revenue was dismissed solely on this ground.
*(Pronounced and Dictated in Court on 3-4-2007)*
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2007 (4) TMI 772
Issues involved:
The judgment involves the condonation of delay in filing complaints under Section 138 r/w 142 of Negotiable Instruments Act and the legality of the trial court taking cognizance of the alleged offense.
Details of the Judgment:
Issue 1: Condonation of Delay
The respondent filed complaints against the petitioners for dishonored cheques. The respondent sought to condone the delay in filing the complaints. The complaints were filed after the prescribed period of limitation. The petitioners argued that the trial court did not follow the proper procedure for condoning the delay, constituting an abuse of the court process. They cited legal precedents to support their contention.
Issue 2: Legality of Cognizance
The main point in the criminal original petitions was whether the trial court could legally take cognizance of the alleged offense under Section 138 r/w 142 of Negotiable Instruments Act by condoning the delay in filing the complaints. The petitioners contended that the trial court's actions were not legally sustainable, while the respondent argued for the legality of the trial court's actions.
Judgment Summary:
The High Court dismissed the Criminal Original Petitions, stating that the complaints could not be quashed solely based on the absence of an accompanying affidavit stating reasons for the delay. The Court emphasized that the lack of such an affidavit was a curable defect. The Court directed the respondent to file an affidavit explaining the delay, allowing the petitioners to counter the reasons in the affidavit. The Court held that if the reasons were adequate, the delay could be condoned on merits. The judgment highlighted the importance of following proper procedures for condoning delay and stated that the complaints should proceed without being quashed. The petitioners were granted the liberty to present their defenses in the trial court, which was instructed to proceed with the case promptly and in accordance with the law.
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2007 (4) TMI 771
Issues Involved:
The issues involved in this judgment include the liability of a retired partner in a partnership firm for acts done before retirement, the validity of the execution petition against the retired partner, the requirement of public notice upon retirement, and the necessity of an agreement to discharge liability to third parties.
Liability of Retired Partner:
The petitioner, a retired partner, claimed he was not liable for the amount claimed by the respondent as he retired before the suit was filed. However, the court held that even though the petitioner retired after the cause of action arose, he remained liable for acts of the firm before retirement unless discharged through an agreement with third parties and the reconstituted firm partners.
Validity of Execution Petition:
The respondent argued that the suit against the firm and the petitioner was valid as the cause of action arose before the petitioner's retirement. The court noted that the petitioner's retirement notice was sent after the cause of action, and without an agreement with the respondent, the petitioner could not be discharged from liability.
Requirement of Public Notice:
The court examined the mode of giving public notice upon retirement as per Section 72 of the Indian Partnership Act. It was found that the petitioner did not follow the required modes of public notice, such as notifying the Registrar of Firms and publishing in the official gazette, rendering his retirement notice insufficient.
Necessity of Agreement to Discharge Liability:
The judgment emphasized that the petitioner could only be discharged from liability to the respondent through an agreement with the respondent and the reconstituted firm partners. Since no such agreement existed, and the respondent denied receiving the retirement notice, the petitioner could not escape liability.
Conclusion:
The court held that the order of the X Assistant Judge dismissing the petitioner's application did not have any illegality. The petitioner failed to follow the required public notice procedures, did not have an agreement to discharge liability, and raised objections belatedly. Consequently, the Civil Revision Petition was dismissed, confirming the lower court's order without costs.
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2007 (4) TMI 770
Issues involved: Challenge to the order passed by a Single Judge of the Allahabad High Court dismissing a writ petition regarding an Award made by the Industrial Tribunal, Uttar Pradesh, in Adjudication Case No. 168 of 1980.
Background: Respondent Nos. 2 & 3 were appointed as Chowkidars on daily wage basis, terminated due to construction work completion. Dispute referred to Tribunal, which held termination improper u/s 25(F) of the Industrial Disputes Act, 1947 & Section 6N of the U.P. Industrial Disputes Act, 1947. They were reinstated but dispute continued.
Adjudication Cases: Respondent No. 2 raised another dispute claiming to be a Pump Operator cum Electrician, seeking salary adjustment. Tribunal found him working as a casual Chowkidar, not as claimed. Appellants challenged various Awards and directions regarding regularization and payment of wages.
Legal Arguments: Appellants argued High Court's direction for regularization was untenable post the Uma Devi case, emphasizing Industrial Adjudicator's powers. Respondent's counsel argued Industrial Adjudicator can modify employment terms for industrial peace, differing from civil suits or writ petitions.
Court's Decision: Court noted Industrial Adjudicator's power to vary employment terms but not violate Article 14 of the Constitution regarding regularization. Upheld that regularization requires an employee-employer relationship, citing Uma Devi case. Respondent's claim as a Pump Operator was found unsubstantiated, and regularization direction was deemed improper based on Uma Devi case.
Conclusion: The appeal was allowed without costs, finding the direction for regularization untenable in light of legal principles established in the Uma Devi case.
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2007 (4) TMI 769
Issues Involved:
1. Legality of the dismissal of the complaint u/s 256 Cr. P.C.
2. Maintainability of the revision against the order of dismissal.
3. Jurisdiction of the Lower Revisional Court.
Summary:
1. Legality of the dismissal of the complaint u/s 256 Cr. P.C.:
The complaint was dismissed by the Additional Chief Judicial Magistrate (A.C.J.M.), 1st Muzaffarnagar on 5.2.2004 due to the non-appearance of both parties. The court noted that "if the complainant does not appear, the Magistrate has to acquit the accused unless he thinks it proper to adjourn the hearing of the case to some other day." This dismissal amounts to an acquittal of the accused u/s 256(1) Cr. P.C.
2. Maintainability of the revision against the order of dismissal:
The complainant challenged the dismissal in Criminal Revision No. 146/2004 before the Sessions Judge, Muzaffarnagar, which was allowed by the Additional Sessions Judge on 25.4.2005. However, the High Court observed that "against the dismissal of complaint which amounted to acquittal of accused, the complainant had a right to file special leave to appeal u/s 378(4) Cr. P.C. in this Court." Since the complainant did not pursue this route, the revision was not maintainable due to the prohibition contained u/s 401(4) Cr. P.C.
3. Jurisdiction of the Lower Revisional Court:
The High Court concluded that the Lower Revisional Court had no jurisdiction to entertain the revision against the order dated 5.2.2004. The impugned order dated 25.4.2005 was passed "in the teeth of Section 378(4) Cr. P.C. read with Section 401(4) Cr. P.C." and thus, cannot be sustained.
Conclusion:
The High Court quashed the impugned order dated 25.4.2005 passed by the Additional Sessions Judge, Court No. 1, Muzaffarnagar, and allowed the revision, stating that the Lower Revisional Court's order was "de hors the law."
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2007 (4) TMI 768
Validity of Bail granted already in offences u/s 324, 352 and 506 IPC - subsequently Offence converted into one u/s 304 IPC - Special leave filed against the Petition u/s 482 Cr.P.C. before the High Court seeking a direction to the CJM, to permit them to remain on same bail even after conversion of the offence into one u/s 304 IPC - HELD THAT:- Accused respondents could apply for bail afresh after the offence had been converted into one u/s 304 IPC. They deliberately did not do so and filed a petition u/s 482 Cr.P.C. in order to circumvent the procedure whereunder they would have been required to surrender as the bail application could be entertained and heard only if the accused were in custody.
It is important to note that no order adverse to the accused respondents had been passed by any Court nor there was any miscarriage of justice or any illegality. In such circumstances, the High Court committed manifest error of law in entertaining a petition u/s 482 Cr.P.C. and issuing a direction to the subordinate court to accept the sureties and bail bonds for the offence u/s 304 IPC. The effect of the order passed by the High Court is that the accused after getting bail in an offence under Section 324, 352 and 506 IPC on the very day on which they were taken into custody, got an order of bail in their favour even after the injured had succumbed to his injuries and the case had been converted into one u/s 304 IPC without any Court examining the case on merits, as it stood after conversion of the offence. The procedure laid down for grant of bail u/s 439 Cr.P.C., though available to the accused respondents, having not been availed of, the exercise of power by the High Court u/s 482 Cr.P.C. is clearly illegal and the impugned order passed by it has to be set aside.
learned Counsel for the appellant has submitted that charge u/s 302 IPC has been framed against the accused respondents by the trial court and some subsequent orders were passed by the High Court by which the accused were ordered to remain on bail for the offence u/s 302 r/w Section 34 IPC on furnishing fresh sureties and bail bounds only on the ground that they were on bail in the offence u/s 304 IPC. These orders also deserve to be set aside on the same ground.
Thus, the appeal is allowed. The impugned order dated 1.7.2005 passed by the High Court and all other subsequent orders whereby the accused respondents were directed to remain on bail for the offence u/s 302 r/w Section 34 IPC on furnishing fresh sureties and bail bonds are set aside. The accused respondents shall be taken into custody forthwith. It is, however, made clear that it will be open to the accused respondents to apply for bail for the offences for which they are charged before the appropriate Court and in accordance with law.
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2007 (4) TMI 767
Issues Involved:
1. Territorial Jurisdiction
2. Imposition of Penalty u/s 45-A of the Madhya Pradesh Commercial Tax Act, 1994
Summary:
1. Territorial Jurisdiction:
The respondents raised a preliminary objection regarding the territorial jurisdiction of the Gwalior Bench, arguing that the cause of action arose within the jurisdiction of the Indore Bench. The petitioner countered that the adverse effect of the impugned order was felt at their factory in Malanpur, where the penalty amount was deposited. The court referred to the Full Bench decision in K.P. Govil vs. Jawaharlal Nehru Krishi Vishwa Vidyalaya, Jabalpur, which held that the cause of action arises not only where the order is passed but also where its consequences are felt. Consequently, the court overruled the preliminary objection, affirming its jurisdiction to hear the matter.
2. Imposition of Penalty u/s 45-A of the Madhya Pradesh Commercial Tax Act, 1994:
The petitioner argued that the penalty imposed was unsustainable as there was no intention to evade tax. The consignment in question was raw material (LMC) for manufacturing chocolates, not a saleable product. The Form No. 75 was inadvertently left in Mumbai but was submitted within three days. The court noted that the authorities presumed an intention to evade tax without considering that the transported goods were not saleable and were exempt from entry tax. The court emphasized that penalty should not be imposed for technical or venial breaches without dishonest intention or malice, as per the Supreme Court's ruling in M/s Hindustan Steels Ltd. vs. State of Orissa. The court found that the authorities acted mechanically without establishing any mala fides or intention to evade tax. Consequently, the court quashed the impugned orders and directed the refund of the penalty amount deposited by the petitioner.
Conclusion:
The petition was allowed, and the impugned orders imposing the penalty were quashed. The authorities were directed to refund the penalty amount deposited by the petitioner. The case was disposed of without any order as to costs.
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