|
Advanced Search Options
Case Laws
Showing 1 to 20 of 650 Records
-
2007 (5) TMI 698
The Appellate Tribunal (CESTAT Bangalore) granted condonation of a 30-day delay in filing the appeal due to the applicant's illness, acknowledging the delay was "beyond his control." Regarding the stay application, the applicant sought waiver of the pre-deposit of Service Tax amounting to Rs. 23,520/-, contending he was not a Cable Operator but merely an agent collecting dues for M/s. Asianet Satellite Communication Ltd. The Tribunal found that "prima facie, in view of the evidence produced, the appellant has a strong case on merits," and accordingly allowed the stay application, ordering "no recovery during the pendency of the appeal." Both the condonation and stay applications were allowed.
-
2007 (5) TMI 697
The Bombay High Court disposed of an appeal under Section 10F of the Companies Act, 1956 arising from an interlocutory order by the Company Law Board. The parties agreed to set aside the order dated 6th June 2005 without expressing any final opinion. They will appear before the CLB for early disposal of the Company Petition, with a request for completion within four months. All rights and contentions regarding inspection are kept open for arguments before the CLB. No further interlocutory application shall be filed for four months. The appeal was disposed of with no costs.
-
2007 (5) TMI 696
Issues:
Professional misconduct under Chartered Accountants Act - Sections 21(5) and Chapter 7-F of Delhi High Court Rules.
Analysis:
1. The judgment pertains to a reference made to the High Court under Section 21(5) of the Chartered Accountants Act regarding allegations of professional misconduct against Respondent No. 1.
2. Despite multiple attempts at serving Respondent No. 1, including through publication in a newspaper, he failed to appear, leading to proceedings against him ex-parte.
3. The allegations against Respondent No. 1 involved facilitating a loan sanction based on forged documents and providing false certificates, indicating potential professional misconduct.
4. The allegations were assessed in light of Clause (5) and (7) of the Second Schedule to the Chartered Accountants Act, relating to failure to disclose material facts and gross negligence in professional duties.
5. Respondent No. 1 submitted a written statement denying the allegations but was found guilty of "other misconduct" by the Council, leading to a recommendation for his removal from the register of members for one month.
6. The defense put forth by Respondent No. 1 highlighted his role in providing services for obtaining financial assistance, denying the allegations against him.
7. The judgment emphasized the significance of the certificate issued by Respondent No. 1, which influenced the bank's decision to disburse the loan, indicating a lack of responsibility on his part.
8. The Court agreed with the Council's conclusion that Respondent No. 1's actions constituted "other misconduct" under the Act, justifying the recommended penalty of removal from the register for one month.
9. The Court deliberated on the severity of the punishment, considering the expectations of integrity and probity from Chartered Accountants involved in financial transactions, ultimately upholding the Council's recommendation.
10. Consequently, the Court accepted the Council's recommendation for the removal of Respondent No. 1's name from the register of members for one month, emphasizing the need for accountability in professional conduct.
11. The judgment concluded by disposing of the reference, affirming the decision to remove Respondent No. 1's name from the register for the specified period.
-
2007 (5) TMI 695
The Appellate Tribunal CESTAT Bangalore granted interim stay in the case based on the opinion that the appellants were not conducting hire purchase business but only lending business. The stay application was allowed, waiving pre-deposit and staying recovery of the service tax. The appeal is set for final hearing on 16-7-07.
-
2007 (5) TMI 694
Issues Involved:
1. Validity of ad-hoc appointments.
2. Right to regularization of services.
3. Applicability of the Constitution Bench decision in Umadevi.
4. Interpretation of "irregular" vs. "illegal" appointments.
5. Principle of "equal pay for equal work."
Comprehensive, Issue-wise Detailed Analysis:
1. Validity of Ad-hoc Appointments:
The Appellant, an autonomous body, governed by the Appointment, Promotion, Security, etc., Rules, 1971, appointed teachers on an ad-hoc basis due to exigencies of work. These appointments were made without following the regular selection process and were clearly stipulated as temporary with no right to claim regular appointment. The Tribunal acknowledged that these appointments were ad-hoc and did not confer any right to the post.
2. Right to Regularization of Services:
The High Court directed the regularization of the respondents' services, stating that they had worked continuously despite being appointed on an ad-hoc basis. The respondents argued that their long-term service and requisite qualifications entitled them to regularization. However, the Supreme Court emphasized that regularization does not equate to permanence and must comply with established rules and procedures. The Court highlighted that the respondents' continued service was due to interim orders and not through a regular selection process.
3. Applicability of the Constitution Bench Decision in Umadevi:
The Supreme Court referred to the Constitution Bench decision in Secretary, State of Karnataka v. Umadevi, which clarified that regularization is not a mode of recruitment and cannot confer permanence. The decision emphasized that only irregular appointments, not illegal ones, could be regularized if they met certain conditions, such as working for ten years or more without court intervention. The Court found that the respondents' appointments did not meet these criteria as they were continued in service due to court orders.
4. Interpretation of "Irregular" vs. "Illegal" Appointments:
The Court distinguished between "irregular" and "illegal" appointments, stating that irregular appointments could be regularized if they were made in sanctioned posts and the appointees were qualified. However, appointments made in violation of constitutional provisions or rules are illegal and cannot be regularized. The respondents' appointments were deemed illegal as they did not follow the prescribed selection process and were made to meet temporary needs.
5. Principle of "Equal Pay for Equal Work":
The High Court had applied the principle of "equal pay for equal work" to the respondents. However, the Supreme Court reiterated that this principle does not justify regularization or conferment of permanence. The Court held that the principle of equal pay cannot lead to treating temporary or ad-hoc appointments as permanent, as it would violate the constitutional requirement of equal opportunity in public employment.
Conclusion:
The Supreme Court set aside the High Court's judgment, holding that the respondents' ad-hoc appointments did not entitle them to regularization. The Court emphasized adherence to constitutional provisions and established rules for public employment. The appeals were allowed, and no costs were imposed.
-
2007 (5) TMI 693
Issues Involved:
1. Construction/interpretation of a Will vis-`a-vis Sections 113, 116, and 129 of the Indian Succession Act.
2. Validity of the bequest to the University of Calcutta.
3. Whether the respondents had the locus to file the suit.
4. Effect of Clauses 5, 6, and 7 of the Will and Clause 12 of the Codicil.
5. Impact of non-compliance with Clause 6 of the Will.
6. Applicability of Section 88 of the Indian Succession Act.
Detailed Analysis:
Construction/Interpretation of the Will vis-`a-vis Sections 113, 116, and 129 of the Indian Succession Act:
The primary issue was the interpretation of the Will executed by Nerode Chandra Vasu Mullick, particularly Clauses 5, 6, and 7, in light of Sections 113, 116, and 129 of the Indian Succession Act. The Court examined whether the bequest to the unborn son of Hamir Chandra Vasu Mullick was valid and whether the subsequent bequest to the University of Calcutta was enforceable.
Validity of the Bequest to the University of Calcutta:
The Court held that the bequest to the University of Calcutta was valid. Clause 12 of the Codicil provided that if the legatee, Hamir Chandra Vasu Mullick, had no issue, the estate would go to the University of Calcutta. The intention of the testator was to perpetuate the memory of his ancestors, and the bequest to the University was meant to achieve this purpose.
Whether the Respondents Had the Locus to File the Suit:
The Court affirmed the respondents' locus to file the suit, stating that the University of Calcutta was entitled to proceed with the suit. The preliminary issue raised by the appellants regarding the respondents' locus was answered in the negative.
Effect of Clauses 5, 6, and 7 of the Will and Clause 12 of the Codicil:
The Court analyzed Clauses 5, 6, and 7 of the Will and concluded that Clause 12 of the Codicil did not substitute these clauses but was to be read as part of the Will. Clause 5 provided a life estate to Hamir Chandra Vasu Mullick, and upon his death without issue, the property would vest in the University of Calcutta. Clause 6 allowed the legatee to sell the property but required reinvestment in immovable properties in Calcutta. Clause 7 was interpreted as a directory clause expressing the testator's desire rather than a dispositive provision.
Impact of Non-Compliance with Clause 6 of the Will:
The Court noted that non-compliance with Clause 6, which required reinvestment of sale proceeds in immovable properties, would not invalidate the transfer but might render it voidable. The High Court was directed to consider the validity of the sale and lease transactions executed by the legatee.
Applicability of Section 88 of the Indian Succession Act:
The Court held that Clause 7 of the Will, which provided for a bequest to an unborn person, was not inconsistent with Clause 5. Therefore, Section 88, which states that the last of two irreconcilable clauses shall prevail, was not applicable. The Court emphasized the need to reconcile the clauses to give effect to the testator's intention.
Conclusion:
The Supreme Court dismissed the appeal, upholding the validity of the bequest to the University of Calcutta and affirming the respondents' locus to file the suit. The Court requested the High Court to expedite the disposal of the pending suits. The decision was based on a thorough interpretation of the Will, the Codicil, and relevant provisions of the Indian Succession Act, ensuring that the testator's intentions were honored.
-
2007 (5) TMI 692
Issues Involved:1. Applicability of Section 22 of the Sick Industrial Companies (Special Provisions) Act (SICA) to security deposits. 2. Whether the judgment of the Division Bench operates as constructive res judicata. Issue 1: Applicability of Section 22 of SICA to Security Deposits1. The primary issue is whether the security deposit given by the tenant to the company, which is before the Board for Industrial and Financial Reconstruction (BIFR)/Appellate Authority for Industrial and Financial Reconstruction (AAIFR), is covered by Section 22 of the SICA, precluding the tenant from filing suit/proceedings or execution petition to recover this security amount. 11. The court concluded that Section 22 would not cover proceedings where execution of refund of security is sought. The relevant portion of Section 22 of the SICA reads: "...no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of industrial company or for the...." 12. The Supreme Court in Shree Chamundi Mopeds Ltd. v. Church of SIT Asson. [1992]2SCR999 held that eviction proceedings initiated by a landlord against a tenant company (which has gone sick and proceedings pending before the BIFR/AAIFR) would not fall under Section 22 of the SICA. The Court opined that three kinds of proceedings were contemplated under that provision, namely, (a) proceedings for winding up of the industrial company; (b) proceedings for execution, distress or the like against the properties of the sick industrial company; (c) proceedings for the appointment of receiver. 13. The Court held that the premises leased out to the sick industrial company would not become the property of the sick industrial company and proceedings for eviction instituted by the landlord against the tenant, who happens to be a sick industrial company, could continue. The sustenance drawn from this judgment is that if the security deposit given by the tenant to the landlord, which is a company and has become a sick industrial company now, does not become the property of the sick company, the bar under Section 22 of the SICA would not apply. 14. The Division Bench of Madhya Pradesh High Court in NEPA Ltd. v. Manoj Kumar (2002) (1) MPHT 125 held that security deposit was not the 'property' of the landlord, being held in trust by the said landlord/JD. The Court referred to the Oxford Shorter English Dictionary and Law Lexicon to find the meaning of 'Security'. 15. Karnataka High Court in Deepak Insulated Cable Corporation Ltd. v. Union of India and Ors. [2001] 106 CC 380 held that a deposit by the depositor is not a sum lent to the company but is a sum deposited with the company to be held in trust by the company till the time of maturity. It is not a loan in the strict sense of the term. Therefore, any claim for return of a deposit made with the company cannot be termed as a suit for recovery of money due. 16. The court agreed with the views taken by Madhya Pradesh and Karnataka High Courts. 17. The learned Single Judge's judgment, which is impugned in this appeal, noted the question of whether the security deposit is not to be treated as an asset or property of the sick company but did not answer this question. The order of the learned Single Judge is set aside on this ground. Issue 2: Constructive Res Judicata10(a). The appellant argued that JD No. 1 had not taken up the plea of Section 22 of the SICA before the learned Single Judge, who tried the suit and ultimately even the decree came to be passed on merits. This plea was subsequently raised before the Division Bench, which proceeded to decide the case on merits and dismissed the appeal. Therefore, the JD was estopped from raising the same plea in the execution proceedings, and the judgment of the Division Bench operated as constructive res judicata. 17. The court did not need to go into the other contention raised by the learned Counsel for the decree holder in this appeal based on constructive res judicata, as the appeal was allowed on the ground that Section 22 would not cover the proceedings where execution of refund of security is sought. Conclusion18. The appeal is accordingly allowed. The execution petition shall proceed on merits. 19. No costs.
-
2007 (5) TMI 691
Issues Involved:
1. Dismissal of bail petitions.
2. Validity and admissibility of confessional statements.
3. Application of precedents and legal principles regarding bail under TADA.
Summary:
Issue 1: Dismissal of Bail Petitions
The appeals arise from the judgments and orders dated 8.9.2006 and 10.8.2006 by the High Court of Gujarat at Ahmedabad, which dismissed the bail petitions of the appellants. The appellants were implicated in an FIR lodged on 4.4.2003 for offences u/s 120(B), 121, 121(A), 122, and 123 of the IPC and Sections 25(1)(b), 25(1)(c), 27, and 29 of the Arms Act. The appellants were arrested based on allegations of conspiracy and involvement in terrorist activities post-Godhra massacre.
Issue 2: Validity and Admissibility of Confessional Statements
The chargesheets were filed against the first appellant on 10.9.2003 and the second appellant on 21.1.2004. Confessional statements of various accused, including the appellants, were recorded, leading to the recovery of arms from the first appellant. The appellants argued that no overt act was attributed to them, confessions were obtained post-arrest, and the recovery of weapons alone would not lead to a conviction under TADA. They also contended that the confessions were recorded in similar language, raising doubts about their credibility.
The court referred to precedents such as Simon and Ors. v. State of Karnataka (2004) 1 SCC 74 and S.N. Dube v. N.B. Bhoir 2000 CriLJ 830, emphasizing the importance of voluntary and properly recorded confessions. The court noted that irregularities in recording confessions might be curable and admissible in evidence, as seen in State of Tamil Nadu through Superintendent of Police CBI/SIT v. Nalini and Ors. 1999 CriLJ 3124.
Issue 3: Application of Precedents and Legal Principles Regarding Bail Under TADA
The appellants cited various judgments, including Shaheen Welfare Association v. Union of India and Ors. 1996 CriLJ 1866 and State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru 2005 CriLJ 3950, to argue for bail. The court acknowledged that detailed reasons should be avoided in bail orders to prevent prejudice but emphasized that bail applications involving state security should ordinarily be rejected.
The court highlighted the classification of undertrials in Shaheen Welfare Association and noted that a strong prima facie case existed against the appellants, involving allegations of training in Pakistan, monetary support, and possession of arms. The court concluded that releasing the appellants could hamper the trial and securing their presence might be challenging.
Conclusion:
The Supreme Court dismissed the appeals, directing the Designated Judge to conclude the trial expeditiously, preferably within six months, emphasizing the strong prima facie case and potential risks to the trial process if the appellants were released on bail.
-
2007 (5) TMI 690
Issues Involved:
1. Jurisdiction of the Chief Metropolitan Magistrate, Calcutta.
2. Transfer of Investigation from West Bengal to Uttar Pradesh.
3. Validity of the High Court's directions.
4. Compliance with Section 181(4) of the Code of Criminal Procedure.
5. Allegations of fraudulent misrepresentation and criminal conspiracy.
Detailed Analysis:
1. Jurisdiction of the Chief Metropolitan Magistrate, Calcutta:
The appellant filed a complaint under Section 156(3) of the Code of Criminal Procedure, alleging criminal conspiracy, cheating, forgery, and breach of trust by the respondents. The complaint was directed to the Officer-in-Charge of Shakespeare Sarani Police Station, Kolkata, for investigation. The Chief Metropolitan Magistrate issued non-bailable warrants of arrest. The appellant argued that the court had jurisdiction under Section 181(4) CrPC, as the property was to be accounted for within its jurisdiction. The respondents contended that the complaint did not disclose any cause of action within the jurisdiction of the Chief Metropolitan Magistrate, Calcutta.
2. Transfer of Investigation from West Bengal to Uttar Pradesh:
The respondents filed a criminal writ petition before the Allahabad High Court, seeking to quash the FIR and transfer the investigation to Uttar Pradesh. The High Court allowed the writ petition in part, directing the FIR to be transmitted to the appropriate police station in Uttar Pradesh. The appellant argued that the High Court had no jurisdiction to transfer the investigation, as the Chief Metropolitan Magistrate had already exercised judicial power. The respondents argued that the major part of the cause of action arose in Uttar Pradesh, justifying the transfer.
3. Validity of the High Court's Directions:
The Allahabad High Court directed the FIR to be transferred to Uttar Pradesh and restrained the arrest of the respondents until the submission of the chargesheet. The appellant contended that the High Court's direction was erroneous as it did not consider the jurisdictional provisions of Section 181(4) CrPC. The respondents argued that the High Court had the authority to transfer the investigation to ensure a fair and thorough investigation.
4. Compliance with Section 181(4) of the Code of Criminal Procedure:
Section 181(4) CrPC provides that an offence of criminal misappropriation or breach of trust can be tried by the court within whose jurisdiction the property was to be accounted for. The appellant argued that the accused were bound by contract to account for the property in Calcutta, giving the Chief Metropolitan Magistrate jurisdiction. The respondents argued that the requirement to account must arise by law or contract, and no such averment was made in the complaint.
5. Allegations of Fraudulent Misrepresentation and Criminal Conspiracy:
The complaint alleged that the respondents committed various acts of breach of trust, cheating, forgery, and criminal conspiracy, including misappropriation of funds and fraudulent preparation of documents. The appellant argued that fraudulent misrepresentation and conspiracy were essential ingredients of the offences, giving rise to a cause of action within the jurisdiction of the Chief Metropolitan Magistrate. The respondents argued that the representations made were not fraudulent from the beginning and that the complaint was filed to harass them.
Conclusion:
The Supreme Court held that the Chief Metropolitan Magistrate, Calcutta, had jurisdiction to entertain the complaint under Section 156(3) CrPC as part of the cause of action arose within its jurisdiction. The High Court of Allahabad should not have interfered with the investigation. The investigation was to be carried out by the C.B.C.I.D. of Uttar Pradesh, and the report was to be forwarded to the Chief Metropolitan Magistrate, Calcutta, who would determine the question of jurisdiction. The appeal was disposed of with specific directions to ensure a fair and thorough investigation.
-
2007 (5) TMI 689
Issues Involved:
1. Legality of the prosecution and trial under Section 364A IPC.
2. Sufficiency of evidence to establish the charges under Sections 364A, 365, 343 read with 120B, and 346 read with 120B IPC.
3. Legality of the conviction of Suman Sood under Section 364A read with 120B IPC.
4. Validity of the extradition process and its implications on the charges.
Issue-wise Detailed Analysis:
1. Legality of the prosecution and trial under Section 364A IPC:
The appellants contended that the Extradition Treaty between the USA and Great Britain in 1931 did not include the offence of kidnapping for ransom under Section 364A IPC, rendering their prosecution under this section illegal. The court rejected this argument, stating that the Extradition Treaty of 1931 was still in force and included offences of kidnapping and abduction. Furthermore, the Final Judgment of Certification of Extraditability explicitly mentioned Section 364A IPC, thereby validating the prosecution under this section.
2. Sufficiency of evidence to establish the charges under Sections 364A, 365, 343 read with 120B, and 346 read with 120B IPC:
The court found substantial evidence supporting the charges against Daya Singh and Suman Sood. Testimonies from multiple witnesses, including the victim Rajendra Mirdha, corroborated the kidnapping and detention. The prosecution established that Daya Singh and Suman Sood were involved in the conspiracy and execution of the kidnapping. The evidence showed that Daya Singh was directly involved in the abduction and detention, and Suman Sood was aware of and participated in the conspiracy by providing food and medicine to the victim.
3. Legality of the conviction of Suman Sood under Section 364A read with 120B IPC:
The trial court acquitted Suman Sood of the charge under Section 364A IPC, but the High Court reversed this acquittal. The Supreme Court found no direct or indirect evidence linking Suman Sood to the demand for ransom. It was noted that Suman Sood was not part of the kidnapping team and had not made any ransom demands. The court upheld her conviction for the lesser offences under Sections 365/120B, 343/120B, and 346/120B IPC but set aside her conviction under Section 364A read with 120B IPC, restoring the trial court's acquittal on this charge.
4. Validity of the extradition process and its implications on the charges:
The court addressed the appellants' challenge to the extradition process, noting that the 1931 Extradition Treaty was applicable and included offences of kidnapping and abduction. The extradition orders explicitly mentioned Section 364A IPC, validating the prosecution under this section. The court also clarified that under the amended Section 21 of the Extradition Act, 1962, a person extradited for a higher offence could be tried for a lesser offence disclosed by the facts proved. Therefore, Suman Sood's prosecution under Section 365 IPC, a lesser offence than Section 364A IPC, was lawful.
Final Judgment:
The Supreme Court dismissed Daya Singh's appeal, upholding his conviction and sentence for the offences under Sections 364A, 365, 343 read with 120B, and 346 read with 120B IPC. For Suman Sood, the court upheld her conviction and sentence for the offences under Sections 365/120B, 343/120B, and 346/120B IPC but set aside her conviction under Section 364A read with 120B IPC, restoring her acquittal on this charge by the trial court.
-
2007 (5) TMI 688
Issues involved: Interpretation of Central Subsidy under 10% Central Outright Grant Scheme 1971 for calculating investment allowance.
Summary:
Issue 1: Central Subsidy and Investment Allowance Calculation
The High Court was tasked with determining whether the Central Subsidy received by the assessed under the 10% Central Outright Grant Scheme 1971 in relation to the backward area of Parwanoo in Himachal Pradesh should reduce the cost of plant & machinery for calculating the allowable investment allowance. The Supreme Court precedent in Commissioner of Income Tax v. P.J. Chemicals Ltd. [1994]210 ITR 830(SC) was considered, where it was established that the expression "actual cost" should be interpreted liberally. The subsidy, being an incentive and not intended to meet the actual cost directly or indirectly, was deemed not deductible from the actual cost of assets. Consequently, the High Court ruled in favor of the assessed, aligning with the Supreme Court decision.
In conclusion, the High Court answered the question in the affirmative, supporting the assessed and ruling against the Revenue.
-
2007 (5) TMI 687
Issues Involved:
1. Legality of the Drainage Development Fees imposed by the Kolkata Municipal Corporation.
2. Authority of the Kolkata Municipal Corporation under the Kolkata Municipal Corporation Act and related rules to levy such fees.
3. Refund of Drainage Development Fees collected by the Corporation.
4. Limitation period for claiming the refund of the fees.
5. Applicability of Article 265 of the Constitution of India regarding unauthorized tax collection.
Detailed Analysis:
1. Legality of the Drainage Development Fees:
The primary issue was whether the Kolkata Municipal Corporation (KMC) had the legal authority to impose Drainage Development Fees as a condition for sanctioning building plans. The court noted that the KMC did not have any statutory provision under the Kolkata Municipal Corporation Act, 1980, or the rules and regulations framed thereunder to levy such fees. The learned single judge had previously declared the circular imposing these fees as ultra vires the Constitution and the Act.
2. Authority of the Kolkata Municipal Corporation:
The KMC argued that sections 289(2), 290, 293, 307, and 543(2) of the Kolkata Municipal Corporation Act, along with specific rules, provided the authority to levy Drainage Development Fees. However, the court found no explicit provision in the Act, rules, or regulations authorizing the imposition of such fees. The court emphasized that a statutory corporation has no power to do anything unless explicitly authorized by statute, citing the principle that delegated authorities must act strictly within the parameters of their delegated powers.
3. Refund of Drainage Development Fees:
The court addressed the issue of refunding the fees collected by the KMC. It was argued that the fees were collected under a circular later declared ultra vires, and thus, the money should be refunded. The court held that once a statutory authority's action is declared illegal, the refund of money collected under such action is a matter of course. The court directed the KMC to refund the collected fees with interest.
4. Limitation Period for Claiming Refund:
The KMC contended that the claim for refund was barred by limitation. However, the court held that the limitation period for claiming a refund begins from the date the action is declared illegal by a competent court. Therefore, the writ petitioners' claim for refund was not barred by limitation as the right to claim the refund accrued only after the declaration of the circular's illegality.
5. Applicability of Article 265 of the Constitution:
The court reiterated the principle under Article 265 of the Constitution, which states that no tax shall be levied or collected except by the authority of law. Since the KMC had no legal authority to impose the Drainage Development Fees, the collection of such fees was in violation of Article 265.
Conclusion:
The court dismissed the appeals filed by the Kolkata Municipal Corporation, upholding the learned single judge's decision that the imposition of Drainage Development Fees was unauthorized and illegal. The court also directed the KMC to refund the collected fees with interest to the writ petitioners. The judgment emphasized the necessity for statutory authorities to act within their expressly conferred powers and reinforced the constitutional mandate against unauthorized tax collection.
-
2007 (5) TMI 686
Issues Involved:
1. Whether the foreign judgment was given "on the merits of the case" and thus executable in India.
2. Applicability of permission from RBI under FERA for the execution of the decree.
Detailed Analysis:
Issue 1: Whether the foreign judgment was given "on the merits of the case" and thus executable in India
1. Background: The decree holder obtained a decree from the Queens Bench Division of the High Court of the United Kingdom against the judgment debtor. The decree was based on a suit for recovery of a sum of lb5,470,212 along with interest, filed under Order 14 RSC, akin to Order 37 of the Indian Code of Civil Procedure, providing for summary procedure. The judgment debtor had initially participated but later failed to appear or file a supporting affidavit for the leave to defend application.
2. Judgment by the Queens Bench Division: The foreign court examined the judgment debtor's plea extensively but rejected it, holding that the plea of fraud and undue influence did not hold water. No appeal or revision was filed against this judgment, making it final.
3. Execution Petition in India: The decree holder filed an execution petition in the Delhi High Court under Order XXI Rule 22 CPC. The judgment debtor objected, claiming the foreign judgment was not on merits and thus unexecutable under Section 13(b) CPC. The learned Single Judge rejected this objection, holding that the foreign judgment was on merits.
4. Legal Framework: Section 44A CPC allows for the execution of decrees from foreign courts in reciprocating territories as if passed by an Indian District Court, provided a certified copy of the decree and a certificate of satisfaction or adjustment are filed. Section 13 CPC lists exceptions where a foreign judgment is not conclusive, including judgments not given on merits.
5. Judgment Debtor's Argument: The judgment debtor argued that the foreign judgment was not on merits as it was rendered under summary procedure without recording evidence. The debtor cited several judgments to support this claim.
6. Learned Single Judge's Rationale: The learned Single Judge distinguished between judgments given by default and those given after considering the merits. The judge noted that the foreign court had examined the defense and found it untenable, thus rendering a judgment on merits. The judgment was not ex-parte or by default but was based on a detailed analysis of the defense.
7. Supreme Court Precedent: The case of International Woollen Mills v. Standard Wool (U.K.) Ltd. was discussed, where the Supreme Court held that a judgment is on merits if it involves judicial consideration of the plaintiff's claim, even if ex-parte. The judgment debtor's defense was considered, and the decree was not passed merely due to non-appearance.
8. Conclusion: The Delhi High Court agreed with the learned Single Judge that the foreign judgment was on merits, as the defense was scrutinized and found unworthy of trial. The appeal was dismissed, and the execution was allowed to proceed.
Issue 2: Applicability of permission from RBI under FERA for the execution of the decree
1. Secondary Objection: The judgment debtor also raised an objection regarding the need for RBI permission under FERA for executing the decree.
2. Court's Approach: The learned Single Judge did not decide on the applicability of FERA in the impugned judgment but issued notice to RBI for determining this question.
Summary:
The Delhi High Court upheld the execution of a foreign judgment from the Queens Bench Division of the High Court of the United Kingdom, ruling that it was given on merits. The court distinguished between judgments given by default and those involving judicial consideration of the defense. The secondary issue of RBI permission under FERA was not decided and was left for determination by the RBI. The appeal by the judgment debtor was dismissed, and the execution was allowed to proceed on merits.
-
2007 (5) TMI 685
Issues Involved:
1. Power of the Corporation under Section 29 of the State Financial Corporation Act, 1951.
2. Requirement of proper notice to the guarantor before taking possession of mortgaged property.
3. Legality of the public notice for auction/sale of the mortgaged property without prior notice to the guarantor.
4. Liability of the guarantor in relation to the borrower's default.
Detailed Analysis:
1. Power of the Corporation under Section 29 of the State Financial Corporation Act, 1951:
The central issue was whether the Corporation could take possession of the mortgaged property of the guarantor under Section 29 of the SFC Act, 1951, without issuing proper notice. The petitioner argued that Section 29 only empowers the Corporation to act against the borrower, not the guarantor. The Corporation contended that it has the right to take over and sell the mortgaged property of both the borrower and the guarantor if the borrower defaults.
2. Requirement of proper notice to the guarantor before taking possession of mortgaged property:
The Court emphasized the importance of issuing proper notice to the guarantor before taking any action on the mortgaged property. The petitioner claimed that no notice was given before the Corporation attempted to take possession of the property. The Court referred to the principles of natural justice and fair play, which necessitate informing the guarantor of the intended actions and providing an opportunity to fulfill the obligations.
3. Legality of the public notice for auction/sale of the mortgaged property without prior notice to the guarantor:
The Court found the public notice for auction/sale of the mortgaged property without prior notice to the guarantor to be unjust, unreasonable, and arbitrary. The Corporation's action was deemed violative of the principles of natural justice, as the guarantor was not given a fair chance to repay the loan or address the default before the public notice was issued.
4. Liability of the guarantor in relation to the borrower's default:
The Court discussed the difference between a surety and a guarantor, noting that a guarantor's liability is secondary and contingent upon the default of the borrower. The guarantor is only liable when the borrower fails to repay the loan. The Court cited the Black Law Dictionary to highlight that a guarantor's contract is a separate undertaking from the borrower's contract. The Court also referred to various judgments, including the Full Bench decision of the Allahabad High Court in Munna Lal Gupta v. U.P. Financial Corporation, and the Supreme Court's ruling in Delhi Financial Corporation v. Rajiv Anand, to support its findings.
Conclusion:
The Court concluded that the Corporation's actions were unfair, unjust, unreasonable, and arbitrary. The impugned letter dated 23-12-1997 and the public notice dated 8-5-1998 were set aside and quashed. The Corporation was directed to restore possession of the mortgaged property to the petitioner and proceed de novo in accordance with the law for the realization of its dues.
-
2007 (5) TMI 684
Issues Involved:
1. Preliminary objections regarding the maintainability of the petition.
2. Allegations of oppression and mismanagement by the respondents.
3. Validity of the share allotment and increase in share capital.
4. Legality of the removal of the petitioners as directors.
5. Sale of time shares without informing the petitioners.
Detailed Analysis:
Preliminary Objections
The respondents raised two preliminary objections: (1) the petitioner holding only 8% shares was not entitled to file the petition under Sections 397 and 398 of the Companies Act, 1956, and (2) the petition was not instituted by a person duly authorized to represent the petitioner. The petitioner countered that she initially held more than 10% shares and challenged the further allotment of shares that reduced her shareholding. The Board found these objections untenable, stating that if the shareholding is reduced below 10% due to further issue of shares, and if such issue is challenged, the petition is maintainable. The Board also dismissed the objection regarding the Power of Attorney, emphasizing substantial justice over technicalities.
Allegations of Oppression and Mismanagement
The petitioner alleged various acts of oppression and mismanagement, including the purported increase in capital reducing her shareholding from 30% to 8%, unauthorized removal as a director, and sale of time shares without her knowledge. The respondents failed to provide sensible responses to these allegations, relying on mere denials and unsubstantiated claims.
Validity of Share Allotment and Increase in Share Capital
The petitioner argued that the increase in share capital from Rs. 10 lakhs to Rs. 40 lakhs and the subsequent allotment of shares were illegal and intended to reduce her shareholding. The Board found that the respondents did not follow due procedure and failed to justify the necessity for the increase in capital. The respondents' claim that the increase was to pay off a loan was contradicted by the fact that the loan was paid off before the share allotment monies were collected. The Board declared the increase and allotment of shares null and void, recognizing it as an act of continuous oppression.
Legality of Removal as Directors
The petitioner and her husband were allegedly removed as directors under Section 283(1)(g) of the Companies Act. The Board found contradictions in the respondents' statements and noted that the removal was not conducted according to the due procedure. The Form 32 filed after the petitioner's husband's death indicated resignation, not removal. The Board deemed the removal illegal and directed that the petitioner's son be placed as a director in place of her deceased husband.
Sale of Time Shares
The petitioner alleged that the respondent No. 2 sold time shares in the hotel property without informing her, for a consideration of 93,000 pounds sterling. The absence of respondent No. 8, who initially intended to represent before the Board, strengthened the petitioner's contention. The Board granted the petitioners liberty to review the transaction and take appropriate steps in the company's interest.
Conclusion
The Board granted the petitioner's prayers, directing the respondent company to implement the orders forthwith. The petition was disposed of with all interim orders vacated and no order as to costs. The Board recognized the petitioner's entitlement to 50% shareholding and declared the increase and allotment of shares in March 2003 null and void due to continuous oppression and illegal acts by the respondents.
-
2007 (5) TMI 683
Issues involved: Validity of auction sale of appellant's property under the Maharashtra Co-operative Societies Act, 1960 and Rules framed thereunder.
Summary:
The Supreme Court heard appeals against the Bombay High Court's judgment regarding a loan default case involving a cooperative bank under the Maharashtra Co-operative Societies Act, 1960. The appellant's property was put up for auction under Rule 107 of the Rules, where the auction purchaser failed to pay the remaining 85% of the purchase money within 15 days as required by Rule 107(11)(g). Citing precedents like Manilal Mohanlal Shah v. Sardar Sayed Ahmed Sayed Mahmad and Balram v. Ilam Singh, the Court emphasized that non-compliance with the mandatory requirement of depositing the full purchase money within the stipulated time renders the sale proceedings null and void, not merely irregular. Consequently, the Court held that the auction sale of the appellant's property was invalid and directed a fresh auction after proper advertising and compliance with Rule 107 procedures. The appeals were allowed, the impugned judgment was set aside, and no costs were awarded.
-
2007 (5) TMI 682
Issues Involved:
1. Equivalence of the posts of Assistant Mill Manager (AMM) and Assistant Conservator of Forests (ACF).
2. Eligibility of AMM for promotion to Deputy Conservator of Forests (DCF) under the relevant Recruitment Rules.
3. Jurisdiction and authority of the Tribunal in declaring equivalence of posts and reviewing its own judgment.
4. Applicability of 1963, 1973, and 1991 Recruitment Rules and Indian Forest Service (IFS) Regulations.
5. Connection of AMM post with forestry for inclusion in the State Forest Service.
Issue-wise Detailed Analysis:
1. Equivalence of AMM and ACF Posts:
The appellant argued that the post of AMM was equivalent to ACF and hence should be considered for promotion to DCF. The 1963 and 1973 Recruitment Rules were cited to support this claim. However, the High Court found that the Tribunal had no authority to declare these posts equivalent, especially when the Recruitment Rules did not provide such equivalence. The High Court emphasized that the channels of promotion for ACF and AMM were different, with AMM being a technical post not connected with forestry, unlike ACF.
2. Eligibility of AMM for Promotion to DCF:
The appellant claimed eligibility for promotion to DCF based on the 1963/1973 Rules and IFS (Appointment by Promotion) Regulations, 1966. The State opposed this, stating that AMM was part of a technical channel with no claim to forestry posts like ACF and DCF. The Tribunal initially rejected the appellant's claim, stating that AMM was not part of the State Forest Service and not connected with forestry. The High Court upheld this view, noting that the post of AMM lacked the necessary forestry connection and qualifications required for ACF.
3. Tribunal's Jurisdiction and Authority:
The Tribunal initially rejected the appellant's claim but later reversed its decision in a review, which the High Court found unjustified. The High Court stated that the Tribunal overstepped its jurisdiction by rewriting Recruitment Rules and failed to point out any apparent error on the record to justify the review. The Tribunal's action was deemed as sitting as an appellate authority over its own judgment, which was impermissible.
4. Applicability of Recruitment Rules and IFS Regulations:
The appellant's claim was based on the 1963 and 1973 Rules, which were argued to be still in vogue. However, the High Court and the State pointed out that the 1991 Rules created a new service excluding AMM from the Andaman & Nicobar Islands Forest Service. The High Court concluded that the 1963 Rules were impliedly repealed by the 1991 Rules, which only included ACF for promotion to DCF. The High Court also noted that the post of DCF was now part of the IFS cadre, governed by IFS (Recruitment) Rules, 1966, and related regulations.
5. Connection of AMM Post with Forestry:
The appellant argued that the post of AMM was connected with forestry and thus should be included in the State Forest Service. The High Court rejected this, stating that AMM's duties were technical and not related to forestry management or policy. The qualifications for AMM were also different from those required for ACF, further supporting the view that AMM was not connected with forestry. The High Court upheld the Tribunal's initial finding that AMM was not a forestry post and thus not eligible for promotion to DCF.
Conclusion:
The appeals were dismissed, with the High Court affirming that the Tribunal exceeded its jurisdiction in reviewing its own judgment and declaring equivalence of posts. The post of AMM was found to be a technical position, not connected with forestry, and thus not eligible for promotion to DCF under the relevant Recruitment Rules and IFS Regulations. The 1991 Rules were held to have created a new service structure, excluding AMM from the Andaman & Nicobar Islands Forest Service.
-
2007 (5) TMI 681
Issues involved:
The judgment involves charges under Section 120-B of the IPC and other related sections against the petitioner, challenging the order on charge dated 22-03-2006 and charge dated 04-04-2006.
Charge under Section 120-B of the IPC:
The trial court charged the petitioner for offenses punishable under Section 120-B read with Sections 409, 419, 420, 467, 468, and 471 of the Indian Penal Code, 1860, and Sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, along with other co-accused. The prosecution alleged that the petitioner, as an abettor and conspirator, was involved in dishonestly misappropriating money at the instance of other accused, resulting in undue pecuniary benefit to the tune of Rs. 596.11 lakhs from the bank. The defense argued that the charges lacked essential ingredients to hold the petitioner guilty and failed to establish a vital link between the petitioner and other accused, emphasizing the absence of any dishonest intention or motive on the petitioner's part.
Sustainability of Charges under Other Sections:
The judgment also considered the charges framed under Sections 409, 419, 420, 467, 468, and 471 of the Indian Penal Code, 1860, and Sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 against the petitioner. The defense contended that the circumstances against the petitioner were solely based on her relationship with one of the main accused and her involvement in opening bank accounts used by her father to siphon off funds, which were insufficient to establish a grave suspicion warranting charges against her. The court referred to legal precedents emphasizing the need for a clear case and active role in inducement to sustain charges under relevant sections.
Conclusion:
The court found that no prima facie case was made out against the petitioner, as the allegations in the chargesheet failed to establish a grave suspicion of her involvement in the offenses. The court concluded that the trial court's order charging the petitioner could not be sustained based on the available materials and allegations. Consequently, the petition was allowed, and the charges framed against the petitioner-accused were set aside.
-
2007 (5) TMI 680
Issues involved: Challenge to order directing insurance company to deposit T.D.S. deducted from compensation u/s 194-A of Income Tax Act.
Summary:
The petitioner insurance company challenged the order of the Seventh Motor Accidents Claims Tribunal directing the deposit of T.D.S. deducted from compensation. The petitioner contended that the deduction was proper as per Section 194-A of the Income Tax Act, citing precedents from Gujarat High Court and the High Court of Madhya Pradesh. The respondents supported the tribunal's order, but the court held that the deduction of income tax under Section 194-A was justified based on previous judgments. The court quashed the tribunal's order directing the payment of the deducted sum of Rs. 12,800 to the claimants, allowing the petition and disposing of the matter accordingly.
-
2007 (5) TMI 679
Issues involved: Interpretation of notice of demand u/s 138 of the Negotiable Instruments Act regarding the timeline for receipt of the notice by the drawer.
1. Notice of Demand Timeline: The case deliberates on whether the notice under proviso (b) to Sec. 138 of the Negotiable Instruments Act must be received by the drawer within 30 days or if it suffices for the notice to be dispatched within the stipulated period. The court examines if the expression "by giving a notice in writing...within thirty days of the receipt of information" necessitates the notice to ensure receipt within 30 days. Reference is made to the Madhu v. Omega Pipes Ltd. case where it was discussed if the notice must be dispatched reasonably ahead of the expiry of fifteen days to comply with the statutory requirement. The facts of the case involve a dishonored cheque and the issuance of a notice of demand, raising questions about the sufficiency of the notice sent on 1/6/05 and received on 4/6/05.
2. Legal Provisions: Provisos (b) and (c) to Sec. 138 of the Negotiable Instruments Act are highlighted, emphasizing the requirements for the payee or holder to demand payment from the drawer within specific timelines. The clauses outline the conditions for the notice of demand and the subsequent failure of the drawer to make payment within the stipulated period.
3. Interpretation of "Giving Notice": The judgment references the Madhu v. Omega Pipes Ltd. case to analyze the distinction between "giving notice" and the actual receipt of the notice by the drawer. The court discusses the practical interpretation of the expression "giving notice" in the context of dispatching the notice within the statutory period, as opposed to ensuring its receipt within the same timeframe.
4. Conclusion: The court concludes that under proviso (b) to Sec. 138 of the Negotiable Instruments Act, the notice must be dispatched within 30 days, and if sent before the expiry of this period via post or courier, it fulfills the legal requirement. It is emphasized that the date of giving the notice is crucial, not the date of receipt, in determining compliance with the statutory provisions. Consequently, the petition to quash the prosecution under Sec. 482 of the Cr.P.C. is dismissed based on the interpretation of the notice timeline requirements.
........
|
9911796707
