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• 2008 (4) TMI 837
  
  ISSUES PRESENTED and CONSIDERED

  The core legal questions considered in this judgment were:

  • Whether the High Court erred in quashing the First Information Report (FIR) lodged by the appellant against the respondents for alleged offences under Sections 468, 406 read with 120B of the Indian Penal Code (IPC).
  • Whether the dispute between the parties was of a civil nature or if it constituted a criminal offence warranting criminal proceedings.
  • Whether the initiation of criminal proceedings was an abuse of the process of law.

  ISSUE-WISE DETAILED ANALYSIS

  1. Quashing of FIR by the High Court

  Relevant legal framework and precedents: The legal framework involved Section 482 of the Code of Criminal Procedure, which empowers the High Court to quash FIRs to prevent abuse of process or to secure the ends of justice. The appellant argued that the High Court erroneously quashed the FIR, which prima facie disclosed offences under Sections 468, 406 read with 120B, IPC.

  Court's interpretation and reasoning: The Court reasoned that the High Court was correct in quashing the FIR as the dispute was essentially civil in nature, involving settlement of accounts between two partnership firms and a principal company. The Court found no criminal intent or mens rea on the part of the respondents.

  Key evidence and findings: The evidence indicated that the dispute arose from a change in partnership and the subsequent transfer of payments from M/s Johnson & Johnson Ltd. to M/s Mangla Agencies, which the appellant claimed was fraudulent. However, the High Court found that the appellant's claims were primarily related to a civil dispute over partnership and payments.

  Application of law to facts: The Court applied the principles of quashing under Section 482, emphasizing that criminal proceedings should not be used to settle civil disputes or exert pressure for settlements.

  Treatment of competing arguments: The appellant's argument focused on the alleged criminal conduct of the respondents, while the respondents contended that the matter was civil and the criminal proceedings were initiated to exert pressure. The High Court sided with the respondents, finding the appellant's actions to be an abuse of process.

  Conclusions: The Court concluded that the High Court's decision to quash the FIR was justified, as the dispute was civil in nature and did not warrant criminal proceedings.

  2. Nature of the Dispute: Civil vs. Criminal

  Relevant legal framework and precedents: The distinction between civil and criminal liability is crucial in determining the appropriateness of criminal proceedings. The Court considered whether the facts indicated a criminal offence or a civil dispute.

  Court's interpretation and reasoning: The Court interpreted the facts to reveal a civil dispute over partnership and payment issues, rather than a criminal conspiracy or fraud. The High Court noted that the appellant's actions were aimed at using criminal proceedings to resolve a civil dispute.

  Key evidence and findings: The evidence showed that the appellant and Shashi Kant Mangla were partners in M/s K.M. Agencies, and the dispute arose after payments were redirected to M/s Mangla Agencies. The High Court found no evidence of criminal intent or fraud.

  Application of law to facts: The Court applied the principle that criminal law should not be used to settle civil disputes, and found that the appellant's actions constituted an abuse of process.

  Treatment of competing arguments: The appellant argued that the redirection of payments constituted fraud, while the respondents maintained that it was a civil matter. The High Court agreed with the respondents, emphasizing the absence of criminal intent.

  Conclusions: The Court upheld the High Court's finding that the dispute was civil in nature and did not involve criminal liability.

  3. Abuse of Process of Law

  Relevant legal framework and precedents: The Court considered the abuse of process doctrine, which prevents the misuse of legal proceedings for ulterior motives. The appellant's initiation of criminal proceedings was scrutinized under this doctrine.

  Court's interpretation and reasoning: The Court agreed with the High Court's assessment that the appellant's actions were an abuse of process, aimed at pressuring the respondents into a settlement rather than addressing a genuine criminal grievance.

  Key evidence and findings: The evidence indicated a delay in the appellant's actions, with the FIR being lodged long after the alleged fraudulent payments. This delay suggested an ulterior motive rather than a genuine pursuit of justice.

  Application of law to facts: The Court applied the principles of abuse of process, concluding that the appellant's use of criminal proceedings was inappropriate and unjustified.

  Treatment of competing arguments: The appellant argued that the criminal proceedings were justified, while the respondents contended that they were being used as a tool for pressure. The Court found the respondents' argument more persuasive.

  Conclusions: The Court concluded that the appellant's actions constituted an abuse of process, validating the High Court's decision to quash the FIR.

  SIGNIFICANT HOLDINGS

  The Court preserved several significant holdings in its judgment:

  • "The complaint of Suneet Gupta and the steps taken by the police have clearly converted a tripartite civil dispute into a criminal one and have involved the managers of the principals in a dispute between the partners of the firm."
  • The Court emphasized that "criminal proceedings should not be used as a means to settle civil disputes or exert pressure for settlements."
  • The Court affirmed that the High Court's decision to quash the FIR was "in consonance with law and requires no interference."

  The final determination was that the appeals were dismissed, upholding the High Court's decision to quash the criminal proceedings as an abuse of process and affirming the civil nature of the dispute.

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• 2008 (4) TMI 836
  
  In the case cited as 2008 (4) TMI 836 - DELHI HIGH COURT, the Revenue challenged an order by the Income Tax Appellate Tribunal (ITAT), Delhi Bench "A," dated 14th February 2006, concerning the Assessment Year 1998-99. The High Court, comprising Hon'ble Mr. Justice Madan B. Lokur and Hon'ble Mr. Justice Manmohan Singh, considered whether the Tribunal's decision was vitiated by non-application of mind. The Tribunal had remanded the case to the Assessing Officer, directing adherence to orders from ITA No. 2107/D/01 and ITA No. 4156/D/01 for earlier assessment years, which were not pronounced until 31st March 2006. The High Court found this direction illogical, confirming a "complete non-application of mind" by the Tribunal. Consequently, the substantial question of law was resolved in favor of the Revenue. The case was remanded to the Tribunal for reconsideration on merits, with parties instructed to appear on 27th May 2008 for further directions.

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• 2008 (4) TMI 835
  
  Issues Involved:
  
  1. Whether the High Court was justified in reversing the decree of divorce granted by the Family Court.
  2. Whether the Family Court's findings on desertion and cruelty were supported by evidence.
  3. The scope of the appellate court's power in reviewing findings of fact by the trial court.
  
  Issue-wise Detailed Analysis:
  
  1. Justification of High Court's Reversal:
  
  The Supreme Court examined the High Court's decision to reverse the Family Court's decree of divorce, which was granted on grounds of desertion and cruelty. The High Court had set aside the Family Court's decision without adequately addressing the evidence and reasoning provided by the Family Court. The Supreme Court found that the High Court's judgment was "cryptic" and lacked detailed reasoning. It failed to properly consider the evidence and conclusions drawn by the Family Court, which had thoroughly examined the testimonies and circumstances surrounding the case. The Supreme Court emphasized the necessity for the appellate court to provide cogent reasons when overturning a trial court's findings, especially when those findings are based on oral evidence and the trial court had the advantage of observing the demeanor of witnesses.
  
  2. Family Court's Findings on Desertion and Cruelty:
  
  The Family Court had granted a decree of divorce to the husband based on two grounds: desertion and cruelty. The evidence presented showed that the wife left the matrimonial home without just cause, leaving behind her minor daughter, and did not return despite efforts by the husband to reconcile. The Family Court found that the wife's behavior constituted cruelty, as it was hostile towards the husband and his family, and deprived him of conjugal rights. The court also noted the wife's refusal to attend her daughter's marriage, further supporting the claim of cruelty. The Supreme Court agreed with the Family Court's findings, noting that the evidence supported the conclusion that the wife was responsible for creating an intolerable situation for the husband.
  
  3. Scope of Appellate Court's Power:
  
  The Supreme Court reiterated the principles governing the appellate court's review of trial court findings, especially those based on oral evidence. It highlighted that while an appellate court can re-appraise evidence and come to its own conclusions, it must do so with caution, respecting the trial court's advantage of having directly observed the witnesses. The appellate court should not lightly overturn the trial court's findings unless there is a clear error in the trial court's approach or reasoning. The Supreme Court criticized the High Court for not adequately engaging with the Family Court's reasoning and for failing to provide sufficient justification for its decision to reverse the decree of divorce.
  
  Conclusion:
  
  The Supreme Court set aside the High Court's judgment, finding that it did not meet the standards required for reversing the Family Court's findings. The matter was remanded to the High Court for fresh consideration, with instructions to prioritize the case due to the prolonged separation of the parties. The Supreme Court clarified that its observations were limited to the procedural deficiencies in the High Court's judgment and did not express any opinion on the merits of the case, leaving it to the High Court to decide based on the evidence.

  ---

• 2008 (4) TMI 833
  
  Issues Involved
  1. Validity of the Will dated 4.11.1992.
  2. Execution and attestation of the Will.
  3. Suspicious circumstances surrounding the Will.
  4. Applicability of Sections 64, 87, and 103 of the Indian Succession Act.
  5. Impact of incomplete appendices on the Will.
  
  Detailed Analysis
  
  1. Validity of the Will dated 4.11.1992
  The primary issue was whether the Will dated 4.11.1992 was duly executed by the testatrix, Maharani Sharmishthabai Holkar, out of her free will while in a sound disposing state of mind. The High Court refused to grant probate for both Wills dated 23.08.1978 and 4.11.1992, leading to appeals.
  
  2. Execution and Attestation of the Will
  The High Court found that the Will dated 4.11.1992 was not properly executed:
  - The appendices were not signed by the attesting witnesses.
  - The Will remained in the custody of Anil Kak for an extended period.
  - Anil Kak did not testify as a witness.
  - The division of properties in Part B of the Will was unequal, raising suspicions.
  - Anil Kak participated in the preparation of the Will.
  
  3. Suspicious Circumstances Surrounding the Will
  Suspicious circumstances included:
  - One of the executors, Anil Kak, was closely related to the beneficiaries and took an active part in the Will's preparation.
  - The Will was not disclosed to the near relatives for a long time.
  - The appendices, which detailed the distribution of assets, were not present at the time of the Will's execution.
  
  4. Applicability of Sections 64, 87, and 103 of the Indian Succession Act
  - Section 64: Incorporation of papers by reference was discussed. The rule requires the document to be in existence at the time of the Will's execution, which was not the case for the appendices.
  - Section 87: The testator's intention to be effectuated as far as possible. The court held that this section would not apply if the Will was incomplete without the appendices.
  - Section 103: Residuary bequest, which was deemed inapplicable in this case.
  
  5. Impact of Incomplete Appendices on the Will
  The appendices were integral to the Will, specifying the distribution of assets. The High Court noted that:
  - The appendices did not see the light of day when the Will was executed.
  - The distribution of assets was detailed in the appendices, making the Will incomplete without them.
  - The testatrix's intention could not be effectuated without the appendices.
  
  Conclusion
  The Supreme Court upheld the High Court's judgment, dismissing the appeals and concluding that the Will dated 4.11.1992 was not duly executed and was surrounded by suspicious circumstances. The appendices, which were crucial for the execution of the Will, were not present at the time of execution, rendering the Will incomplete. The court emphasized the need for a rational approach and the satisfaction of its conscience in such matters. The appeals were dismissed with costs assessed at Rs. 50,000/-.

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• 2008 (4) TMI 832
  
  Issues Involved:
  1. Ownership of the suit property.
  2. Entitlement to possession of the shop in question.
  3. Validity of the Will dated 25.9.1981.
  4. Entitlement of defendants to the counterclaim of ownership and co-sharership.
  
  Summary:
  
  1. Ownership of the Suit Property:
  The appellants claimed ownership and possession of the suit property, a shop, as co-sharers to the extent of 6 marlas out of the land measuring 3 kanal and one marla. The Trial Court raised the issue of whether the plaintiff is the owner of the suit property (OPP).
  
  2. Entitlement to Possession of the Shop:
  The Trial Court also raised the issue of whether the plaintiffs are entitled to the possession of the shop in question (OPP).
  
  3. Validity of the Will Dated 25.9.1981:
  The core issue revolved around the interpretation of Section 69 of the Evidence Act, 1872, concerning the validity of a Will executed by Ram Bux in favor of the respondent. The Trial Court found the suit bad for non-impleading necessary parties but proceeded to consider the validity of the Will to avoid remand. The Trial Judge opined that the Will was not proved according to Section 68 of the Indian Evidence Act, as the plaintiff failed to examine at least one attesting witness. The First Appellate Court held that the Will was attested by two witnesses, but one had died, and the other had allegedly joined hands with the opposite party and left the country. The High Court dismissed the Second Appeal, stating no substantial question of law arose for consideration.
  
  4. Entitlement of Defendants to the Counterclaim:
  The Trial Court also raised the issue of whether the defendants are entitled to the counterclaim that they are the owners of the shop and co-sharers to the extent of 0-6 marlas of the land detailed in the counterclaim (OPD).
  
  Legal Analysis:
  The Supreme Court emphasized that a Will must be attested by two witnesses as per Section 63(1)(c) of the Indian Succession Act and proved according to Section 68 of the Indian Evidence Act. The Court noted that Section 69 applies when no attesting witness can be found, allowing proof through handwriting evidence. The Court found that the plaintiff failed to exhaust all processes to compel the attendance of the attesting witness, Harnek Singh, and thus could not invoke Section 69. The Court cited precedents emphasizing the necessity of exhausting all legal processes to compel witness attendance before invoking Section 69.
  
  Conclusion:
  The Supreme Court set aside the judgments of the High Court and the First Court of Appeal, allowing the appeal with no order as to costs. The Court held that the plaintiff failed to prove the due execution of the Will as required by law, and the statements made by counsel or the respondent himself could not substitute for evidence warranting the invocation of Section 69 of the Evidence Act.

  ---

• 2008 (4) TMI 831
  
  Issues Involved:
  1. Whether a stranger or third party to an agreement can be added as a party in a suit for specific performance.
  2. Whether the amendment of the plaint to include a declaration that a consent decree is null and void is permissible.
  3. Whether the suit for specific performance was barred by limitation.
  
  Summary:
  
  Issue 1: Addition of a Stranger or Third Party to the Suit for Specific Performance
  The Supreme Court addressed whether a stranger or third party to an agreement could be added as a party in a suit for specific performance. The appellant, who had acquired an independent right in the suit property by way of a separate decree, was not a party to the agreement between the respondent and M/s Modern Development Corporation. The Court held that the appellant, being a third party to the agreement, could not be added as a party in the suit for specific performance. This was supported by the provisions of Section 15 of the Specific Relief Act, 1963, which entitles only parties to the contract to seek specific performance. The Court cited the decision in Kasturi v. Iyyamperumal and Ors., which held that a third party or stranger to the contract could not be added in a suit for specific performance.
  
  Issue 2: Amendment of the Plaint to Include Declaration Against Consent Decree
  The Court examined whether the amendment of the plaint to include a declaration that the consent decree was null and void was permissible. The respondent had sought to amend the plaint to declare the consent decree obtained by the appellant as not binding and null and void. The Court found that allowing such an amendment would completely change the nature and character of the suit from one for specific performance to one for declaration of title and possession. This was not permissible in law, as it would convert the suit into one of a different character. The Court referenced the decision in Anil Kumar Singh v. Shivnath Mishra, which held that a third party to the contract could not be impleaded in a suit for specific performance.
  
  Issue 3: Limitation
  The Court also considered whether the suit for specific performance was barred by limitation. The learned Single Judge of the Bombay High Court had dismissed the Chamber Summons filed by the respondent on the ground of limitation, holding that the relief claimed by way of amendment of the plaint for setting aside the consent decree had its origin in the Agreement dated 1.10.1973 and had not been challenged earlier despite knowledge. The Court agreed with this view, noting that the respondent had knowledge of the earlier Agreement and the consent decree since at least 27.3.1984 but did not take steps to amend the plaint until 5.10.2000.
  
  Conclusion:
  The Supreme Court set aside the order of the Division Bench of the High Court, which had allowed the amendment of the plaint and the impleadment of the appellant. The Court allowed the appeal and directed that the respondent may file a separate suit to challenge the consent decree obtained by the appellant, invoking the relevant provisions of the Limitation Act, 1963, for the period during which the respondent was pursuing his relief against the consent decree in his suit and the appeals arising therefrom. There was no order as to costs.

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• 2008 (4) TMI 830
  
  Issues involved: Application for leave to appeal against acquittal u/s 138 of Negotiable Instruments Act.
  
  Issue 1: Lack of evidence for loan payment
  
  The complainant alleged issuance of a cheque for a loan amount but failed to provide any evidence of the loan payment to the accused. The promissory note presented did not establish the liability of the accused towards the complainant. The absence of documentation or testimony regarding the loan transaction weakened the complainant's case.
  
  Issue 2: Material alteration of the cheque
  
  The complainant admitted to altering the payee name on the cheque without the consent of the accused. The alteration was made based on instructions from an unknown individual, T.K. Agarwal, whose relationship with the accused was not established. This unauthorized alteration constituted a material change in the cheque, rendering it void under Section 87 of the Negotiable Instruments Act. The lack of consent from the accused for the alteration further weakened the case against the accused.
  
  Judgment Summary:
  
  The High Court of Bombay upheld the Magistrate's decision to acquit the accused of the offence u/s 138 of the Negotiable Instruments Act. The court found that the lack of evidence regarding the loan payment and the material alteration of the cheque supported the acquittal. The court emphasized that the Magistrate's decision was reasonable and not perverse, citing legal precedents that discourage interference in such cases where a different opinion could be possible. Consequently, the application for leave to appeal was rejected based on the soundness of the Magistrate's decision.

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• 2008 (4) TMI 829
  
  The Supreme Court dismissed the appeals in the present case based on a previous order in Commissioner of Central Excise, Delhi v. P.R. Packaging (P) Ltd. The Customs, Excise & Gold Appellate Tribunal also accepted the appeal of the assessee in this case.

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• 2008 (4) TMI 828
  
  Issues Involved:
  1. Alleged violation of the Supreme Court's judgment and order dated 19.9.2005.
  2. Payment of rent arrears.
  3. Unauthorized construction on the disputed property.
  4. Interference with the management of the school.
  
  Summary:
  
  Issue 1: Alleged Violation of Supreme Court's Judgment and Order Dated 19.9.2005
  The contempt petitions were filed for the alleged violation of the Supreme Court's judgment and order dated 19.9.2005 in Civil Appeal No. 5807 of 2005. The Court had directed the maintenance of the status quo and restrained the appellant from making any further construction or altering existing structures until the disposal of the suit.
  
  Issue 2: Payment of Rent Arrears
  The petitioner alleged that the respondent had not paid the entire amount of rent for the premises leased out to him. The Supreme Court had directed the respondent to clear all rent arrears within one month. Despite this, the petitioner filed Contempt Petition No. 6 of 2006, claiming non-payment of rent. The Court noted that the respondent had deposited a sum of Rs. 7,00,000/- and another cheque of Rs. 4,31,975/- in compliance with the Court's order.
  
  Issue 3: Unauthorized Construction on the Disputed Property
  The petitioner alleged that the respondent continued to raise constructions despite the Court's order to maintain the status quo. However, the Court found no substantial evidence to support this claim. The photographs provided were insufficient to prove that the respondent had violated the Court's order. The Court emphasized that a proceeding for contempt should be initiated with utmost reservation and only when a clear case for contumacious conduct has been made out.
  
  Issue 4: Interference with the Management of the School
  The respondent filed Contempt Petition No. 79 of 2007, alleging that the petitioner interfered with the management of the school despite the Court's order. The Court found no merit in this petition, stating that the order of injunction related to the existence of the structure and not the recognition/affiliation of the institution.
  
  Conclusion:
  The Supreme Court dismissed all the contempt petitions, stating that no clear case for contempt had been made out. The parties were left to pursue their remedies available in law, with no order as to costs.

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• 2008 (4) TMI 827
  
  Issues Involved:
  1. Maintainability of the company petition.
  2. Legality of the transfer of 23,200 shares to the petitioner.
  3. Petitioner's entitlement to reliefs u/s 397 and 398 of the Companies Act, 1956.
  
  Summary:
  
  1. Maintainability of the Company Petition:
  The petitioner, claiming 40% of the paid-up capital of M/s. Mansani Constructions Private Limited, invoked the jurisdiction of the Company Law Board (CLB) for reliefs u/s 397 and 398 of the Companies Act, 1956, alleging acts of oppression and mismanagement. The petitioner's standing as a shareholder was challenged by the respondents, asserting that the petitioner was never a shareholder and that the board minutes dated 23.01.2007, which purportedly approved the transfer of 23,200 shares to the petitioner, were fabricated.
  
  2. Legality of the Transfer of 23,200 Shares:
  The petitioner claimed to have acquired 23,200 shares through transfers approved by the board on 23.01.2007. However, the respondents contested the validity of these transfers, arguing that the board minutes were fabricated and that the petitioner did not produce original share certificates or evidence of payment for the shares. The CLB scrutinized the articles of association and found that the essential requirements for the transfer of shares, such as the majority board's agreement, fair value payment, written notice of transfer, and determination of fair value, were not met. Consequently, the acquisition of shares by the petitioner was deemed non-compliant with the articles of association and thus invalid.
  
  3. Petitioner's Entitlement to Reliefs u/s 397 and 398:
  Given the invalidity of the share transfers, the petitioner could not claim to be a shareholder and, therefore, had no standing to seek reliefs u/s 397 and 398. The CLB noted inconsistencies in the petitioner's claims, including the absence of any mention of shareholding in police complaints and the lack of original share certificates. As a result, the company petition was dismissed for want of locus standi, and the interim order dated 24.12.2007 was vacated.
  
  Conclusion:
  The CLB dismissed the company petition due to the petitioner's failure to establish valid shareholding, thereby lacking the locus standi to seek reliefs u/s 397 and 398 of the Companies Act, 1956. The application for impleadment of Smt. S. Swetha was also dismissed, and the interim order was vacated.

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• 2008 (4) TMI 826
  
  Issues involved:
  Challenge to judgment of a learned Single Judge of the Delhi High Court dismissing Civil Revision Petition regarding grant of Letters of Administration of a Will dated 9.9.1991. Applicability of Article 137 of the Limitation Act, 1963 and timeliness of the petition.
  
  Factual Position and Legal Analysis:
  
  The appellant contended that the petition for Letters of Administration filed on 7.8.2002, after the death of the testator on 5.10.1995, was time-barred under Section 278 of the Indian Succession Act, 1925. However, the Additional District Judge ruled that the cause of action arose when a previous Probate Petition was withdrawn on 9.8.1999, making the current petition timely.
  
  The High Court upheld the Additional District Judge's decision, stating that Article 137 of the Limitation Act does not apply to Probate/Letters of Administration proceedings. Citing the case of S.S. Lal v. Vishnu Mittal Goel, the High Court emphasized that the right to apply for Letters of Administration is a continuing right, triggered by specific events such as the withdrawal of a previous probate petition.
  
  The appellant argued that Article 137 of the Limitation Act should apply, as the right to apply for Letters of Administration arises when there is a dispute about the genuineness of the Will. Conversely, the respondents contended that the right to apply is event-based, and in this case, it arose after the withdrawal of the previous probate petition.
  
  Legal Precedents and Conclusion:
  
  Referring to The Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, it was established that Article 137 of the Limitation Act applies to any petition or application filed under any Act to a civil court. The nature of the petition seeking Letters of Administration falls within the scope of Article 137, as it is a continuous right seeking recognition from the court to perform a duty.
  
  Additionally, the Bombay High Court's decision in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani highlighted that the right to apply for probate or Letters of Administration is a continuous right that can be exercised any time after the death of the deceased, as long as the right to do so survives. In this case, the right to apply arose on 9.8.1999, making the petition filed on 7.8.2002 within the three-year limitation period.
  
  Therefore, based on the legal analysis and precedents cited, the appeal challenging the timeliness of the petition for Letters of Administration is deemed without merit and is dismissed.

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• 2008 (4) TMI 825
  
  Issues involved:
  The issues involved in the judgment are specific performance of an agreement to sell a property, defense of joint family property, and determination of Mitakashra Coparcenary status.
  
  Specific Performance of Agreement:
  The appellant and the father of the respondents entered into an agreement for the sale of land. The father of the respondents paid a portion of the consideration but the appellant failed to execute a sale deed. A suit for specific performance was filed. The trial court decreed the suit, disbelieving the appellant's defense of forcible execution of the agreement. The appellate court allowed the appeal solely on the ground that the property was a joint family property.
  
  Defense of Joint Family Property:
  The appellant raised the defense that the property was a joint family property. The first appellate court held that jointness in the family was established based on evidence and that the suit property was part of the joint family. However, the court did not determine if the appellant's signatures were forcibly obtained.
  
  Mitakashra Coparcenary Status:
  The distinction between a Mitakashra Coparcenary property and Joint Family property was discussed. The characteristics of a Mitakakashra Coparcenary were highlighted. The court noted that the first appellate court did not establish the appellant's membership in a Mitakashra co-parcenary. The court emphasized that for the purpose of specific performance, a presumption of partition can be drawn based on separate possession admitted by the appellant.
  
  Conclusion:
  The Division Bench of the High Court allowed the appeal of the respondents, upholding the specific performance of the agreement and rejecting the defense of joint family property. The court dismissed the appeal, emphasizing the lack of reason to interfere with the trial court's judgment and decree. The court also discussed the discretionary jurisdiction under the Specific Relief Act but ultimately upheld the decision of the trial court.
  

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• 2008 (4) TMI 824
  
  Issues involved: Appeal against rejection of petition for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure.
  
  The Supreme Court condoned the delay, granted leave, and allowed the appeal against the order passed by the High Court affirming the rejection of the petition for acceptance of additional evidence. The Court held that the appellate Court should have considered the application under Order 41 Rule 27 of the Code of Civil Procedure along with the appeal. The Court set aside the orders of the High Court and the appellate Court, directing the appellate Court to decide the pending appeal along with the application under Order 41 Rule 27 on merits within three months. The Court cited the case of Jaipur Development Authority v. Kailashwati Devi AIR1997SC3243 in support of its decision. The Court clarified that it did not delve into the merits of the application under Order 41 Rule 27, leaving it open to be decided by the appellate court during the appeal process. No costs were awarded in this matter.

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• 2008 (4) TMI 823
  
  Issues Involved:
  1. Non-service of notice to the appellant.
  2. Interpretation and compliance of Rule 6 Chapter 13.
  3. Representation by counsel and the appellant's interest in the proceedings.
  4. Justification for the ex-parte decree.
  
  Summary:
  
  Non-service of notice to the appellant:
  The appellant challenged the orders of the Delhi High Court and Additional District Judge, Tis Hazari Courts, Delhi, dismissing her application u/s Order IX Rule 13 of the Code of Civil Procedure. The appellant argued that she had no opportunity to participate in the proceedings as she was never served notice of the proceedings transferred from the Delhi High Court to the Additional District Judge, Delhi. The courts below failed to recognize that the appellant was not represented by the counsel who appeared for the original defendants 1, 2, and 4, and thus, notice served on that counsel was insufficient.
  
  Interpretation and compliance of Rule 6 Chapter 13:
  The courts below interpreted Rule 6 Chapter 13 to mean that only "interested parties" needed to be informed of the transfer and dates. However, the Supreme Court held that the Rule mandates informing all "parties" of the transfer and the date of appearance, without adding the qualifier "interested." The Rule is mandatory, and non-compliance with it invalidates the proceedings. The appellant was not informed of the transfer date, and the courts below erred in treating her as not required to be informed.
  
  Representation by counsel and the appellant's interest in the proceedings:
  The Supreme Court noted that the appellant was not represented by the counsel who appeared for defendants 1, 2, and 4. The Registrar and the Additional District Judge failed to ensure that the appellant was informed of the transfer and the dates. The courts below wrongly concluded that the appellant was not interested in defending the suit and that notice to the other defendants sufficed for her.
  
  Justification for the ex-parte decree:
  The Supreme Court found that the appellant was never served notice and had no opportunity to participate in the proceedings. The ex-parte decree was unjustified due to the lack of proper service. The courts below erred in rejecting the appellant's application u/s Order IX Rule 13 CPC. The non-service of notice was a sufficient reason to set aside the decree against the appellant.
  
  Conclusion:
  The Supreme Court set aside the orders of the courts below, allowed the application u/s Order IX Rule 13, and fixed the counsel's fee at Rs. 10,000/-.

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• 2008 (4) TMI 822
  
  Issues Involved:
  1. Whether the interest receipts were incidental to the main business and should be treated as capital receipts.
  2. Whether the Tribunal erred in not applying the Supreme Court's decision in Tuticorin Alkali Chemicals & Fertilizers Ltd. v. CIT.
  
  Summary:
  
  Issue I: Incidental Interest Receipts as Capital Receipts
  The Tribunal held that the interest receipts were incidental to the main business of the assessee and should be treated as capital receipts, not as income from an independent source. This decision was based on the Supreme Court's judgment in CIT v. Karnal Co-operative Sugar Mills Ltd., where interest earned on deposits made for opening a letter of credit for purchasing machinery was deemed incidental to the acquisition of assets and thus a capital receipt.
  
  Issue II: Applicability of Tuticorin Alkali Chemicals Case
  The Revenue argued that the Tribunal should have applied the Supreme Court's decision in Tuticorin Alkali Chemicals & Fertilizers Ltd. v. CIT, where interest income from short-term deposits of borrowed funds was held to be taxable as revenue income. The Tribunal, however, distinguished this case by relying on the Supreme Court's decisions in CIT v. Bokaro Steel Ltd. and CIT v. Karnal Co-operative Sugar Mills Ltd., which treated similar interest receipts as capital receipts because they were inextricably linked with the setting up of the plant and machinery.
  
  Court's Analysis and Conclusion
  The High Court noted that both lines of reasoning'treating interest as revenue income (Tuticorin) and as capital receipt (Bokaro Steel and Karnal Co-operative)'have their own logical footing. The Tribunal's decision to follow the latter line of reasoning was found to be justified. The Court emphasized that it was not deciding whether the receipt should be treated as revenue or capital but upheld the Tribunal's decision as legally justified. Consequently, the appeal was dismissed, and the questions were decided in favor of the assessee and against the Revenue.

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• 2008 (4) TMI 821
  
  Issues Involved:
  1. Whether the four petition of complaints were premature.
  2. Interpretation of Clause (c) of Section 138 and Clause (b) of Section 142 of the N.I. Act.
  3. Validity of cognizance taken by the Magistrate on premature complaints.
  
  Summary:
  
  Issue 1: Whether the four petition of complaints were premature.
  The accused issued cheques to the opposite party which were dishonored due to insufficient funds. Statutory notices u/s 138(b) of the N.I. Act were served on 01-12-1997, and complaints were filed on 15-12-1997. The primary question was whether these complaints were premature as they were filed before the expiry of the 15-day period mandated by Clause (c) of Section 138 of the N.I. Act.
  
  Issue 2: Interpretation of Clause (c) of Section 138 and Clause (b) of Section 142 of the N.I. Act.
  Clause (c) of Section 138 mandates that the drawer must be given 15 days from the receipt of the notice to make the payment. Clause (b) of Section 142 stipulates that a complaint must be made within one month of the cause of action arising, which is after the 15-day period. The court held that the cause of action arises only after the expiry of the 15-day period, and any complaint filed before this period is premature and not maintainable.
  
  Issue 3: Validity of cognizance taken by the Magistrate on premature complaints.
  The court referred to several precedents, including *Sil Import, USA v. Exim Aides, Silk Exporter, Bangalore* and *Narsingh Das Tapadia v. Goverdhan Das Partani and Anr.*, which clarified that the offence is completed only after the failure to pay within 15 days from the receipt of the notice. The court concluded that the Magistrate erred in taking cognizance of the complaints before the expiry of the statutory period, rendering the complaints premature and invalid.
  
  Conclusion:
  The revisional applications were allowed, and the criminal proceedings were quashed. The court directed that the accused be discharged from their bail bonds and a copy of the judgment be sent to the concerned Judicial Magistrate for necessary action.

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• 2008 (4) TMI 820
  
  Issues Involved:
  1. Ownership and lease conditions of the land.
  2. Allegations of political vendetta.
  3. Compliance with principles of natural justice.
  4. Public purpose for resumption of land.
  5. Unauthorized subletting and misuse of the land.
  
  Detailed Analysis:
  
  Ownership and Lease Conditions of the Land:
  The Agri Horticultural Society was given land by the Government for maintaining an Agri-Horticultural garden. The Society accepted the Government's title to the land through an agreement dated 28.4.1980, which included conditions allowing the Government to resume the land for public purposes or if lease conditions were violated. The Society's challenge to the Government's title was found to be unsubstantiated, as they never contested the agreement or its conditions legally.
  
  Allegations of Political Vendetta:
  The Society and its Honorary Secretary alleged that the Government's actions were motivated by political vendetta due to the Secretary's association with AIADMK leaders. However, the Court found no substantive proof of mala fide intentions. It was noted that even the AIADMK Government had initiated actions against the Society for similar purposes, and the political landscape had changed with the former AIADMK Minister joining the ruling DMK Government.
  
  Compliance with Principles of Natural Justice:
  The Society argued that the Government did not follow natural justice principles by not allowing them to peruse certain documents. However, the Court noted that the Government provided adequate opportunity for a personal hearing and issued a show-cause notice, which was beyond the requirements of RSO 24. The documents requested were deemed matters of policy, and the Court found no prejudice was caused to the Society by not allowing their perusal.
  
  Public Purpose for Resumption of Land:
  The Government's stated public purposes for resuming the land included developing sports facilities and horticultural research. The Court found these purposes valid and noted that the Government had provided sufficient material to support the public purpose claim. The affidavit from the Chief Secretary further clarified the Government's intention to use the land for a Botanical Garden and Horticultural Research Centre, emphasizing environmental and recreational benefits.
  
  Unauthorized Subletting and Misuse of the Land:
  The Society had sublet the land to Woodlands Drive-in Restaurant without Government approval, violating lease conditions. The Court found that the Society's Honorary Secretary was using the land for personal business ventures, including a car rental service and an advertising agency. These actions justified the Government's decision to resume the land. The Court also directed the Government to recover any rents paid to the Society from unauthorized subletting.
  
  Conclusion:
  1. The political vendetta claim by the Society was unfounded and appeared to be a strategy to gain sympathy from the Court.
  2. The Government's ownership of the land was undisputed, and they had the authority to resume the land for public purposes and due to lease violations.
  3. The Court found that the principles of natural justice were adequately followed by the Government.
  4. The public purposes stated by the Government for resuming the land were valid and well-supported.
  5. The Society's unauthorized subletting and misuse of the land justified the Government's resumption actions.
  
  The Court allowed the Government's appeals, set aside the single Judge's orders, and dismissed the Society's writ petitions. The Government was permitted to proceed with the proposed public purposes for the resumed land.

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• 2008 (4) TMI 819
  
  Issues Involved:
  1. Legally recoverable debt under the cheque.
  2. Proper service of statutory notice on the respondent.
  3. Issuance of cheque as security or for discharge of debt.
  4. Presentation of cheque within the stipulated time.
  5. Burden of proof and presumption under Section 139 of the N.I. Act.
  
  Summary:
  
  1. Legally Recoverable Debt:
  The trial court dismissed the complaint on the grounds that there was no legally recoverable debt under the cheque. The appellant argued that non-denial of the issuance of the cheque by the respondent conclusively establishes the existence of debt. However, the respondent contended that the dishonoured cheque was not in respect of a legally enforceable debt but was issued as a blank cheque for security purposes.
  
  2. Proper Service of Statutory Notice:
  The trial court found that there was no proper service of statutory notice on the respondent. The appellant argued that the notice was served on the respondent's wife, which should be considered sufficient. However, the respondent contended that he had not authorised anyone to receive the notice and that he had not been served with summons. The court concluded that the service of notice was not satisfactorily proved.
  
  3. Issuance of Cheque as Security or for Discharge of Debt:
  The respondent claimed that the cheque was issued as a blank cheque for security and not for the discharge of any legally enforceable debt. The court referred to various decisions, including ICDS Ltd. v. Beena Shabeer and Anr., which held that a cheque issued as security could still attract prosecution under Section 138 of the N.I. Act. However, the court found that the cheque in question was issued as security and not for an existing debt.
  
  4. Presentation of Cheque within the Stipulated Time:
  The respondent argued that the cheque was presented beyond six months from the date of its drawal. The court noted that according to Section 138 of the N.I. Act, the cheque has to be presented to the bank within six months from the date on which it is drawn. The court found that the cheque was issued as security and not for discharge of any existing debt, and thus, the presentation timeline was not a critical factor in this case.
  
  5. Burden of Proof and Presumption u/s 139 of the N.I. Act:
  The appellant argued that the presumption under Section 139 of the N.I. Act is the existence of liability and that the cheque issued is towards discharge of a legally recoverable debt. The court held that the respondent-accused need not disprove the appellant's case in its entirety but can discharge his burden on the basis of preponderance or probabilities through direct or circumstantial evidence. The court found that the respondent had discharged the initial onus of proof, and the appellant failed to produce documentary evidence to support his claim.
  
  Conclusion:
  The court concluded that the appellant failed to discharge his burden of proof and did not provide sufficient documentary evidence. The order of acquittal passed by the trial court was upheld, and the appeal was dismissed.

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• 2008 (4) TMI 818
  
  Issues involved: Allegations of serious injuries and deaths in a land dispute leading to criminal case.
  
  Summary:
  The Supreme Court of India, in a judgment delivered by Justice P.P. Naolekar, addressed the issue of an FIR registered on 12.12.2005 at Turkaulia P.S., District East Champaran, Bihar, based on a complaint by Vinay Kumar Sharma. The complaint alleged that the accused-appellants, along with others, attacked the complainant party with arms and ammunition on family land, resulting in serious injuries and deaths. The accused claimed ownership of the land and contended that the complainant party attempted forcible possession. The appellants were named in the FIR immediately after the incident, leading to their arrest and denial of bail by the High Court and Sessions Court. The Court found no merit in the appeal and dismissed it, upholding the lower courts' decisions based on the FIR evidence.

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• 2008 (4) TMI 817
  
  Issues involved: Interpretation of small scale notification No. 9/2003-C.E. regarding switching options for availing duty exemption within the same financial year.
  
  Summary:
  
  Issue 1: Interpretation of notification regarding switching options for availing duty exemption
  
  The appellants, engaged in manufacturing Organic Chemicals and Optical Brightening Agent, availed the benefit of small scale notification No. 9/2003-C.E. from April '04, paying duty at a concessional rate of 9.6%. However, they opted out of the exemption from May '04 to August '04, paying duty at the full rate of 16%. Subsequently, from September '04 to December '04, they again cleared goods at the concessional rate. The issue arose when proceedings were initiated against the appellants for demanding differential duty for clearances from September '04 to December '04 due to the restriction in the notification against switching options within the same financial year.
  
  Issue 2: Applicability of notification clause on option withdrawal
  
  The notification specified that once the option for availing exemption is exercised, it cannot be withdrawn during the remaining part of the financial year. The Tribunal observed that the appellants, by opting for the notification at the start of the financial year, were not allowed to withdraw from it. The question arose whether the appellants could switch back to the exemption after paying duty at the full rate from May '04 onwards.
  
  Issue 3: Determination of duty liability based on option exercise
  
  The Tribunal concluded that the violation of conditions could not act retrospectively, and duty could not be demanded for the period before opting out of the exemption. While no duty was confirmed for the period before May '04, duty was confirmed for September '04 to December '04 when the appellants reverted to the concessional rate. The Tribunal upheld the duty demand for this period as the appellants were bound to clear goods at the full rate after opting out in May '04.
  
  Conclusion:
  
  The Tribunal confirmed the duty demand for the period September '04 to December '04 but did not impose any penalty as the issue involved a bona fide interpretation of the notification. The appeal was disposed of accordingly on 3-4-2008.

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