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• 2007 (8) TMI 832
  
  Issues Involved:
  1. Condonation of delay in filing the appeal.
  2. Jurisdiction of the Civil Court under Section 20A of the SEBI Act.
  3. Validity of ex parte decree and the procedural correctness in the Summary Suit.
  
  Issue-wise Detailed Analysis:
  
  1. Condonation of Delay:
  The appellant sought condonation for a delay of 546 days in filing the appeal against the ex parte decree. The appellant argued that the delay was due to pursuing a remedy for setting aside the ex parte decree, which should be excluded from the limitation period. The appellant's advocate cited the Supreme Court's decision in Collector, Land Acquisition v. Mst. Katiji to argue for a liberal approach in condoning delays, emphasizing that substantial justice should prevail over technicalities. The Court considered the affidavit of the appellant's advocate, who explained that due to unavoidable circumstances, a reply could not be filed, leading to the ex parte decree. The Court found the explanation satisfactory and condoned the delay, emphasizing that litigants should not suffer due to their advocate's inaction.
  
  2. Jurisdiction of the Civil Court:
  The appellant contended that the City Civil Court lacked jurisdiction to entertain the suit due to Section 20A of the SEBI Act, which bars civil courts from adjudicating matters that fall under the purview of the SEBI Act. The appellant argued that disputes related to share transactions should be referred to arbitration or the Securities Appellate Tribunal. The Court noted the appellant's argument but did not provide a definitive ruling on this jurisdictional challenge within the context of the delay condonation application. The focus remained on whether the delay in filing the appeal could be excused.
  
  3. Validity of Ex Parte Decree:
  The ex parte decree was challenged on the grounds that the defendant's advocate failed to appear due to personal reasons, leading to the absence of a defense. The appellant argued that the decree was passed without considering the merits of the defense, and the absence was not deliberate. The Court acknowledged the procedural lapse and the advocate's affidavit explaining the absence. It emphasized that procedural errors by an advocate should not prejudice the client, referencing the Supreme Court's decision in Rafiq v. Munshilal, which highlighted that litigants should not suffer due to their advocate's negligence. The Court concluded that the ex parte decree was passed without a fair opportunity for the defendant to present their case, justifying the condonation of delay to allow an appeal on merits.
  
  Conclusion:
  The Court granted the application for condonation of delay, allowing the appeal to proceed. It emphasized a justice-oriented approach, recognizing the procedural lapses and the jurisdictional challenge under the SEBI Act. The decision underscored the importance of addressing substantive justice over technical procedural defaults, particularly when the litigant's absence was due to their advocate's failure to act. The Court did not stay the order, allowing the appeal process to continue.

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• 2007 (8) TMI 831
  
  Issues:
  - Valuation of imported ungarbled betel nuts
  - Comparison of imported goods with different quantity and quality
  - Application of transaction value
  - Principles of Natural Justice
  
  Valuation of imported ungarbled betel nuts:
  The appeals in this case revolve around the valuation of imported ungarbled betel nuts. The appellants contested the enhancement of valuation by the Commissioner, arguing that the quantity declared in the Bill of Entry was only a portion of the total contracted quantity. They emphasized that the cumulative rate as per the contract was higher than the rate of the Bill of Entry taken for comparison. Despite their arguments, the plea was rejected by the authorities.
  
  Comparison of imported goods with different quantity and quality:
  The appellants contended that the valuation should be considered in the context of the quantity and quality of the imported goods and should not be compared with imports of lesser quantity and quality. They cited a previous case where a similar argument was accepted by the Bench, leading to the re-assessment of the goods. The Bench in that case considered various factors and accepted the valuation of the assessee. The appellants sought a similar consideration in their case.
  
  Application of transaction value:
  The Tribunal examined the records and noted that the Revenue had revalued the imported betel nuts based on data from another importer with significantly lower quantity and quality. The Bench found that the appellants' import volume was substantially higher, at 1200 MT compared to 30 MT by the other importer. The Tribunal held that there was no under-valuation in the appellants' goods, emphasizing the need to consider the quantity, quality, and commercial level of imports for comparison.
  
  Principles of Natural Justice:
  The Tribunal criticized the Revenue for enhancing the value of the goods without proper scrutiny of the contract between the appellants and the foreign supplier. It noted the lack of evidence regarding payments made through separate sources and highlighted the denial of Principles of Natural Justice by not providing copies of relied-upon invoices. The Tribunal ultimately allowed the appeals of the appellants, emphasizing the relevance of the case laws cited and the rational explanations provided for the price differences in imported goods.
  
  In conclusion, the Tribunal applied the ratio from a previous case and set aside the impugned order, allowing the appeals of the appellants and dismissing the appeals of the Revenue. The judgment underscores the importance of considering the specific circumstances of each import transaction, including quantity, quality, and contractual agreements, in determining the valuation of imported goods.

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• 2007 (8) TMI 830
  
  Issues Involved:
  1. Jurisdiction of the M.P. Arbitration Tribunal under the Adhiniyam of 1983 versus the Arbitration and Conciliation Act, 1996.
  2. Definition and scope of "Works Contract" under the Adhiniyam of 1983.
  3. Applicability of arbitration clauses in the contract.
  4. The status of the M.P. Rural Roads Development Authority as a public undertaking.
  
  Issue-wise Detailed Analysis:
  
  1. Jurisdiction of the M.P. Arbitration Tribunal versus the Arbitration and Conciliation Act, 1996:
  The primary issue was whether the dispute should be referred to the M.P. Arbitration Tribunal under the Adhiniyam of 1983 or be resolved under the Arbitration and Conciliation Act, 1996. The non-applicant contended that the M.P. Arbitration Tribunal had exclusive jurisdiction as the contract was a "Works Contract" under the Adhiniyam of 1983. The applicant argued that the arbitration clause in the contract should prevail, invoking the Act of 1996. However, the court held that the Adhiniyam of 1983, having received the President's assent, prevails in the State of M.P. over the Act of 1996 due to Article 254 of the Constitution, which allows state law to prevail when it has received presidential assent.
  
  2. Definition and Scope of "Works Contract":
  The court examined whether the consultancy services provided by the applicant fell under the definition of a "Works Contract" as per Section 2(i) of the Adhiniyam of 1983. The applicant argued that their role was limited to supervision and did not constitute a "Works Contract." However, the court referred to the comprehensive definition of "Works Contract," which includes agreements for supervision and other related activities necessary for the execution of construction works. The court concluded that the consultancy services were indeed part of the "Works Contract" as they were integral to the execution and supervision of the construction project.
  
  3. Applicability of Arbitration Clauses:
  The applicant invoked Clause 8.2 of the special conditions of the contract, which provided for arbitration under the Act of 1996. The court noted that while the contract contained an arbitration clause, the Adhiniyam of 1983 specifically provided for statutory arbitration for disputes arising out of works contracts with the state or its undertakings. The court emphasized that statutory provisions under the Adhiniyam of 1983 could not be overridden by contractual agreements, thus upholding the jurisdiction of the M.P. Arbitration Tribunal.
  
  4. Status of the M.P. Rural Roads Development Authority as a Public Undertaking:
  The non-applicant argued that the M.P. Rural Roads Development Authority was a public undertaking under Section 2(g) of the Adhiniyam of 1983, being fully owned and controlled by the State Government. The court agreed, noting that the Authority was constituted as a society by the state for executing rural road projects, and thus retained the characteristics of a state entity. This status brought the Authority under the purview of the Adhiniyam of 1983, reinforcing the jurisdiction of the M.P. Arbitration Tribunal.
  
  Conclusion:
  The court concluded that the dispute was subject to the jurisdiction of the M.P. Arbitration Tribunal under the Adhiniyam of 1983. The applicant's consultancy services were deemed part of a "Works Contract," and the Authority was recognized as a public undertaking. The court dismissed the petitions, granting the applicant the liberty to file a reference to the Tribunal within sixty days.

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• 2007 (8) TMI 829
  
  Issues:
  Violation of provisions of Foreign Exchange Regulation Act, 1973 - Contravention of sections 18(2) and 18(3) - Penalty imposed on appellant firm and managing partner - Mis-utilization of domestic credit card abroad without RBI permission.
  
  Analysis:
  The judgment pertains to appeals against an Adjudication Order imposing penalties on an appellant firm and its managing partner for contravention of sections 18(2) and 18(3) of the Foreign Exchange Regulation Act, 1973. The penalties were imposed for failure to realize outstanding export dues and misuse of a domestic credit card abroad without RBI permission. The appellant firm was penalized for not repatriating the foreign exchange to India and for transferring goods to an alternate overseas buyer without RBI authorization. The managing partner was penalized for acquiring foreign currency in Italy without RBI permission. The appeals challenged the impugned order on grounds of natural justice violation and discrepancies in the allegations made in the Show-Cause Notice. The appellant argued that penalties were imposed on different grounds than those alleged in the SCN, emphasizing events beyond their control and lack of deliberate action. The respondent contended that the appellants failed to make reasonable efforts to realize outstanding dues and provided evidence of non-compliance with RBI directives.
  
  The Tribunal analyzed the evidence and legal provisions under sections 18(2) and 18(3) of the FER Act, 1973. It highlighted the obligation of exporters to make reasonable efforts to recover export proceeds within prescribed periods and methods. The Tribunal noted that the appellants did not provide evidence of taking reasonable steps or rebutting the presumption of non-receipt of payments within the prescribed period. Consequently, the appellants were found guilty of indifference towards realizing export proceeds, leading to the imposition of penalties. The Tribunal referenced legal precedents emphasizing the need for deliberate action or refraining from steps in contravention cases.
  
  Regarding the quantum of penalty, the Tribunal differentiated between the appellant firm and the managing partner. Citing a Calcutta High Court ruling, it held that both could not be held guilty simultaneously for the same contravention. Therefore, the penalty was imposed only on the appellant firm, absolving the partner from payment. Additionally, the managing partner was penalized for the misuse of a domestic credit card abroad without RBI permission. The Tribunal directed the firm to deposit the penalty amount within a specified period and the managing partner to pay the imposed penalty.
  
  In conclusion, the Tribunal upheld the penalties imposed on the appellant firm and the managing partner for violations of the FER Act, 1973. It emphasized the importance of complying with foreign exchange regulations and the consequences of non-compliance, ensuring accountability and adherence to legal provisions.

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• 2007 (8) TMI 828
  
  Issues:
  Challenge to the constitutionality of Section 6A of the Haryana General Sales Tax Act, 1973 and its legislative competence.
  
  Detailed Analysis:
  
  1. Introduction:
  The judgment addresses seven writ petitions challenging the constitutional validity of Section 6A of the Haryana General Sales Tax Act, 1973, raising common issues. The primary prayer seeks a declaration of Section 6A as ultra vires of the Constitution and beyond the State Legislature's legislative competence, with a further request for the State to levy sales tax based on the actual sale price negotiated between the petitioners and their customers.
  
  2. Facts and Background:
  The petitioners, engaged in cement manufacturing and sales, are registered under the Haryana Act and the Central Sales Tax Act, operating in Haryana. The State amended the Act through the Haryana General Sales Tax (Amendment) Act, 2002, introducing Section 6A. This provision mandates the levy of sales tax on the Maximum Retail Price (MRP) of goods listed in the Schedule, instead of the actual sale price, charged only at the final retail sale point.
  
  3. Legal Arguments:
  Counsel for the petitioners contended that Section 6A is similar to Section 4A of the Rajasthan Sales Tax Act, citing a Rajasthan High Court judgment and subsequent Supreme Court validation. The State counsel attempted to distinguish the provisions but failed to establish significant differences between them.
  
  4. Judicial Analysis:
  After comparing Section 6A of the Act with Section 4A of the Rajasthan Act, the Court found them materially similar. Both provisions start with a non-obstante clause, with minor distinctions in specifying taxable goods. The Court concluded that the Supreme Court's ruling in the Rajasthan Chemists Association case applies to the current dispute.
  
  5. Court's Decision:
  Relying on the Supreme Court precedent, the Court held that tax on the first point sale from manufacturer to retailer cannot be based on the published MRP when it is not actually charged or payable by the retailer. The Court emphasized that the tax rate should not be linked to the MRP, which is not part of the transaction between the parties. Consequently, the writ petitions were allowed, and the Court disposed of the case in line with the Supreme Court's decision.
  
  In conclusion, the judgment critically analyzes the provisions of the Acts, compares them with relevant precedents, and ultimately rules in favor of the petitioners by declaring Section 6A unconstitutional and allowing the petitions based on established legal principles.

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• 2007 (8) TMI 827
  
  Issues:
  1. Whether a private school can be considered a 'State' within the meaning of Article 12 of the Constitution of India.
  2. Maintainability of a writ petition against a private school.
  3. Jurisdiction of the Central Board of Secondary Education (CBSE) in cases involving termination of services by a private school.
  
  Analysis:
  1. The Supreme Court addressed the issue of whether a private school, specifically the Delhi Public School (DPS) in Ghaziabad, could be classified as a 'State' under Article 12 of the Constitution of India. The Allahabad High Court had previously ruled that the DPS school did not fall under this definition. The Court emphasized that the writ petition filed by teachers whose services were terminated was not maintainable against a private body like the DPS school. The judgment highlighted that the teachers should seek recourse through a civil suit for damages if necessary. Ultimately, the Supreme Court held that the direction given by the Allahabad High Court to the CBSE regarding the termination of teachers was unwarranted, and the appeal was allowed, setting aside the direction issued by the High Court.
  
  2. The Court delved into the question of the maintainability of a writ petition against a private school. Despite acknowledging that the DPS school was a private entity and not a 'State' within the meaning of Article 12, the Allahabad High Court had directed the CBSE to intervene in the matter of termination of teachers. The Supreme Court expressed confusion over the rationale behind this direction, stating that involving the CBSE in a private dispute was unnecessary. The judgment emphasized that no writ could be maintained against a private school, and the appropriate legal recourse for the teachers was through a civil suit rather than seeking relief via a writ petition.
  
  3. In examining the jurisdiction of the CBSE in cases involving termination of services by a private school, the Supreme Court overturned the direction given by the Allahabad High Court to the CBSE. The Court emphasized that the CBSE should not have been involved in the dispute between the teachers and the DPS school, especially after establishing that the school was not a 'State' within the constitutional framework. The judgment clarified that the CBSE's role should not extend to interfering in the termination of teachers by a private institution, and the teachers should pursue alternative legal remedies, such as filing a civil suit if necessary. Consequently, the Supreme Court allowed the appeal and set aside the direction issued to the CBSE by the Allahabad High Court.

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• 2007 (8) TMI 826
  
  Issues Involved:
  
  1. Competence to recover liquidated damages.
  2. Delay in execution of the contract.
  3. Time being the essence of the contract.
  4. Justification for imposition of liquidated damages.
  5. Entitlement to interest and refund of retained monies.
  6. Counter-claims by the petitioner.
  
  Detailed Analysis:
  
  Competence to Recover Liquidated Damages:
  The petitioner invoked Clause 4.4.0.0 of the General Conditions of Contract to recover liquidated damages of 10% of the contract value due to delays in execution. The arbitrator ruled that the imposition of these damages was unjustified, leading to the petitioner challenging this decision under Section 34 of the Arbitration and Conciliation Act, 1996.
  
  Delay in Execution of the Contract:
  The arbitrator found that the delay was attributable to both parties. The Engineers India Limited (EIL) committee determined that 5 months and 13 days of delay were beyond the respondent's control and attributable to the petitioner. The remaining delay was attributed to the respondent. This finding was accepted by the court.
  
  Time Being the Essence of the Contract:
  The arbitrator concluded that although time was initially intended to be of the essence, successive extensions granted by the petitioner rendered this condition insignificant. The court agreed, noting that the delay in the pipeline reaching Jodhpur meant that the urgency to complete the terminal within the original timeframe lost its importance.
  
  Justification for Imposition of Liquidated Damages:
  The arbitrator held that to impose liquidated damages under Clause 4.4.0.0, the petitioner needed to prove actual loss due to the delay. Since the terminal could not be used commercially until August 1996, well after its completion in March 1996, the petitioner suffered no loss. The court upheld this finding, emphasizing that liquidated damages require proof of loss, which was not established in this case.
  
  Entitlement to Interest and Refund of Retained Monies:
  The arbitrator awarded the respondent interest at 18% per annum from October 1, 1998, until the date of the award and future interest at the same rate until payment. The court found this rate excessive and modified it to 12% per annum from January 1, 1998, until payment, aligning with prevailing market rates and Supreme Court guidelines.
  
  Counter-Claims by the Petitioner:
  The petitioner's counter-claims for losses due to interest blockage, investment delay, manpower expenditure, and electricity payments were rejected. The arbitrator found no evidence supporting these claims, and the court agreed, noting that the delay in the pipeline reaching Jodhpur negated any alleged losses.
  
  Conclusion:
  The court concluded that no case was made to interfere with the arbitrator's award on merits, except for the reduction of the interest rate to 12% per annum. The challenge to the award was rejected, and the petition was partly allowed only to modify the interest rate. No costs were awarded.

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• 2007 (8) TMI 825
  
  Issues involved:
  The judgment deals with the issue of whether an award passed in Lok Adalat can be considered as an award passed by a Court under Section 3(d) of the Land Acquisition Act, 1894.
  
  Summary:
  
  Issue 1: Jurisdiction of Lok Adalat and interpretation of Section 3(d) of the Land Acquisition Act
  
  The petitioners, owners of lands subject to acquisition for the Upper Krishna Project, did not seek reference for higher compensation initially. However, after a Lok Adalat modified the compensation, they sought re-determination under Section 28A of the Land Acquisition Act. The Land Acquisition Officer rejected their request, stating the Lok Adalat award is not a reference court award. The Court examined Section 3(d) of the Act, which defines 'Court,' and noted that a Lok Adalat award is considered a decree of a civil court. The judgment emphasized that the Lok Adalat award, being binding and passed with parties' consent, falls under Section 28A, entitling the petitioners to higher compensation.
  
  Key Points:
  - Interpretation of Section 3(d) of the Land Acquisition Act regarding the definition of 'Court.'
  - Recognition of Lok Adalat award as equivalent to a civil court decree.
  - Application of Section 28A to provide higher compensation based on Lok Adalat award.
  
  Decision:
  The High Court allowed the writ petitions, setting aside the Land Acquisition Officer's orders and directing re-determination of compensation based on the Lok Adalat award for the acquired lands owned by the petitioners.

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• 2007 (8) TMI 824
  
  Issues Involved:
  1. Publicity and Advertisement for Sale of Property
  2. Restraint Order Against Sale of Assets
  3. Intervention by Appellant
  4. Applicability of SARFAESI Act vs. Companies Act
  5. Safeguarding Interests of Other Secured Creditors and Workmen
  
  Summary:
  
  1. Publicity and Advertisement for Sale of Property:
  The learned Company Judge directed that the applicant/intervener should give more publicity by advertising the sale of the property belonging to Maikal Fibres Ltd. in national newspapers and on the A.R.C. (India) website. Additionally, advertisements should be published in regional language newspapers in Maharashtra, Tamil Nadu, and Gujarat. Intending tenderers who have already collected tender forms will be allowed to submit tenders by the new date published in the advertisement. The intervener/applicant must also get one more valuation done by a reputed Government Valuer and ensure the full safety and preservation of all assets until sold. The intervener is permitted to negotiate with tenderers to fetch the best marketable price, ensuring transparency and equal opportunity for all valid tenders.
  
  2. Restraint Order Against Sale of Assets:
  The respondent No. 1, an unsecured creditor, initiated winding-up proceedings u/s 433 and 435 of the Companies Act, 1956. The learned Company Judge issued a restraint order against the respondent company and its directors from transferring, alienating, or selling any assets. If any secured creditor took possession of the assets, no sale should occur until further orders.
  
  3. Intervention by Appellant:
  The appellant, a registered Securitisation Company u/s 3 of the SARFAESI Act, filed an Interlocutory Application to seek intervention. The appellant argued that the Company Court could not issue directions de-hors the provisions of the SARFAESI Act, which has an overriding effect u/s 35. The appellant contended that the Company Court should only safeguard the dues of other secured creditors and workmen who share Pari Passu.
  
  4. Applicability of SARFAESI Act vs. Companies Act:
  The court acknowledged that the SARFAESI Act has an overriding effect, and other laws should yield to its provisions. However, u/s 529A of the Companies Act, incorporated in Sub-section (9) of Section 13 of the SARFAESI Act, the court can provide for payment of dues to other secured creditors and workmen. The court found that the directions issued by the learned Company Judge were premature as Section 529A becomes operative only when the company is in liquidation.
  
  5. Safeguarding Interests of Other Secured Creditors and Workmen:
  The court held that the power of the appellant company could not be curtailed to render Section 13 of the SARFAESI Act otiose. However, to safeguard the interests of persons covered by Section 529A of the Companies Act, the court issued the following directions:
  1) The appellant shall endeavor to obtain the maximum price for the assets.
  2) Upon realizing the amount, the appellant shall apply to the Company Court to inform about the dues of the workmen.
  3) The appellant shall provide a list of other secured creditors and the amounts due to them.
  4) The appellant shall file an undertaking to abide by the provisions of Section 529A of the Companies Act as incorporated in the SARFAESI Act.
  
  Conclusion:
  The appeal was disposed of with the modification of the directions issued by the learned Company Judge, ensuring compliance with the SARFAESI Act while safeguarding the interests of other secured creditors and workmen. No order as to costs. Certified copy within four days.

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• 2007 (8) TMI 823
  
  The Supreme Court of India dismissed Civil Appeals filed by the Department based on the judgment in Supreme Washers (P) Ltd. v. Commissioner of Central Excise, Pune (2003). No order as to costs was given.

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• 2007 (8) TMI 822
  
  Issues involved:
  The issues involved in this case are the liability of service tax on the storage charges collected by the appellants, the nature of services provided by the appellants, and the applicability of penalties imposed by the adjudicating authority.
  
  Summary:
  
  Liability of Service Tax on Storage Charges:
  The appeal was filed against the Order-in-Original passed by the Commissioner of Service Tax, Bangalore, proposing demand of service tax on the storage charges collected by the appellants. The Revenue contended that the demurrage charges collected by the appellants should be considered as "storage and warehousing services" and hence taxable under the Finance Act, 1994. The appellants argued that they do not render storage services to anyone as they are primarily engaged in purchasing and selling liquor. They hire storage bases to store the liquor purchased, and any demurrage charges collected are not for providing storage services. The Tribunal held that the appellants, as recipients of storage services, are not liable to pay service tax under that category.
  
  Nature of Services Provided:
  The Tribunal observed that the appellants incur expenditure for insuring the goods, security arrangements, electricity charges, and rent for godowns, indicating that they receive these services for their own goods and not for providing services to manufacturers. The demurrage charges collected were found to be related to the detention of rolling stock and not for storage services, as per legal definitions and court precedents cited by the appellants' advocates.
  
  Penalties Imposed:
  The adjudicating authority imposed various penalties on the appellants for non-compliance with service tax provisions. However, the Tribunal found no merit in the penalties imposed, especially considering the nature of the appellant as a State Government Corporation. The appeal was allowed with consequential relief granted.
  
  In conclusion, the Tribunal ruled in favor of the appellants, stating that they are not liable to pay service tax on the storage charges collected, as they are recipients of storage services and not service providers. The penalties imposed were deemed unjustified, and the appeal was allowed with relief granted to the appellants.

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• 2007 (8) TMI 821
  
  Issues Involved:
  1. Power of the Electricity Regulatory Commission to issue general directions.
  2. Jurisdiction of the Commission to adjudicate individual consumer grievances.
  3. Legality of blanket orders for refunding amounts collected through supplementary/amended bills.
  4. Proper forum for redressal of individual consumer grievances under the Electricity Act, 2003.
  
  Issue-wise Detailed Analysis:
  
  1. Power of the Electricity Regulatory Commission to Issue General Directions:
  The Supreme Court examined whether the Maharashtra Electricity Regulatory Commission (the Commission) had the authority to issue general directions to licensees/distribution companies. The Court held that the Commission has the power to issue general directions to ensure compliance with statutory provisions and prevent public harassment. This power is derived from various sections of the Electricity Act, 2003, including Sections 45(5), 55(2), 57, 62, 86, 128, 129, and 181.
  
  2. Jurisdiction of the Commission to Adjudicate Individual Consumer Grievances:
  The Court clarified that the Commission does not have the jurisdiction to adjudicate individual consumer grievances. This power is limited to disputes between licensees and generating companies as specified in Section 86(1)(f) of the Act. Individual consumer grievances should be addressed by the Consumer Grievance Redressal Forum and the Ombudsman as established under Section 42(5) and (6) of the Act.
  
  3. Legality of Blanket Orders for Refunding Amounts Collected Through Supplementary/Amended Bills:
  The Commission had issued a blanket order directing the refund of amounts collected through supplementary/amended bills without conducting a proper investigation. The Supreme Court found this approach unsustainable. The Court emphasized that such directions could only be issued after a thorough investigation and obtaining a report under Section 128 of the Act. The Commission's blanket order for refunds was deemed beyond its jurisdiction.
  
  4. Proper Forum for Redressal of Individual Consumer Grievances Under the Electricity Act, 2003:
  The Supreme Court reiterated that individual consumer grievances should be addressed by the Consumer Grievance Redressal Forum and the Ombudsman as per Section 42(5) and (6) of the Act. The Court directed that licensees/distribution companies should issue public notices inviting consumers to present their grievances. These grievances should be resolved by the licensees/distribution companies, and if consumers are unsatisfied, they can approach the appropriate forum under Section 42(5) and subsequently the Ombudsman under Section 42(6).
  
  Conclusion:
  The Supreme Court upheld the power of the Commission to issue general directions but found the blanket order for refunds without proper investigation unsustainable. The Court directed that individual consumer grievances should be addressed by the appropriate forums established under the Act. The appeal was disposed of with directions for licensees/distribution companies to issue public notices and resolve grievances, with further recourse available to the Consumer Grievance Redressal Forum and the Ombudsman.

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• 2007 (8) TMI 820
  
  Issues involved:
  The issues involved in the judgment are the inadvertent non-impleadment of a Business Manager as a petitioner, liability under Section 138 of the Negotiable Instruments Act 1881 for dishonoring a banker's cheque, and the consideration of negligence in such cases.
  
  Inadvertent Non-Impleadment of Business Manager:
  The counsel for the petitioners acknowledged the mistake of not impleading Karuna Bhatia, the Business Manager, as a petitioner, due to the belief that the petition filed on behalf of Standard Chartered Bank would benefit Karuna Bhatia as well. The court clarified that when a company and the individual in charge are accused, each must seek legal remedy individually. Consequently, an amended memo of parties was accepted, and Karuna Bhatia was impleaded as petitioner No.2.
  
  Liability under Section 138 of the Negotiable Instruments Act:
  The petitioners, Standard Chartered Bank and Karuna Bhatia, were summoned to face trial under Section 138 of the Negotiable Instruments Act 1881 for the dishonor of a banker's cheque issued by Karuna Bhatia, the Manager of the bank's branch. The complaint was based on the dishonor of the cheque due to the attachment of the account of M/s. A.D. Exports Pvt. Ltd. by the income tax authorities, leading to the issuance of the cheque in error.
  
  Consideration of Negligence in Dishonor of Banker's Cheque:
  The court highlighted that the liability under Section 138 of the Act is not based on the tort of negligence. It emphasized that for liability under this section, the cheque must be dishonored due to insufficient funds or exceeding the arranged amount. In this case, the complaint did not establish either ground for action under Section 138. The court noted that the banker had informed the complainant about the reason for dishonor, i.e., the account attachment, which was a mistake. Therefore, the complaint lacked the necessary elements for cognizance, and the tort of negligence is not a component of an offense under Section 138.
  
  Conclusion:
  The petition was allowed, and the summoning order against the petitioners, as well as the criminal complaint under Section 138 of the Negotiable Instruments Act 1881, were quashed by the court.

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• 2007 (8) TMI 819
  
  Issues Involved:
  1. Calculation of registration fee commencement date.
  2. Entitlement to benefit under paragraph 4 of Schedule III.
  3. Contemplation of multiple registrations for stock brokers under the Act.
  4. Proper computation of registration fee by the Board.
  
  Summary:
  
  1. Calculation of Registration Fee Commencement Date:
  The primary question was whether the "block of five financial years" for calculating the registration fee should commence from 17.10.1995, when the appellant was initially registered as a stock broker with the Securities and Exchange Board of India (SEBI) upon becoming a member of the National Stock Exchange (NSE), or from 1.4.1998, when it was registered afresh upon becoming a member of the Calcutta Stock Exchange (CSE). The Tribunal concluded that the block period should commence from the initial registration date of 17.10.1995.
  
  2. Entitlement to Benefit Under Paragraph 4 of Schedule III:
  The appellant claimed exemption from the registration fee for the period for which Srikant Mantri had already paid, asserting compliance with paragraph 4 of Schedule III to the Securities and Exchange Board of India (Stock Brokers and Sub-brokers) Regulations, 1992. The Tribunal upheld the Board's rejection of this claim, noting that Srikant Mantri was not a whole-time director in the company during the requisite period, thus failing to meet the conditions for exemption. The Tribunal emphasized that the benefit under paragraph 4 applies only if an individual or partnership membership is converted into a corporate entity, which was not the case here.
  
  3. Contemplation of Multiple Registrations for Stock Brokers:
  The Tribunal addressed whether the Act contemplates multiple registrations for stock brokers. It referred to a Division Bench of the Delhi High Court in National Stock Exchange Member vs. Union of India & Ors., which held that the Act envisages only one registration even if a broker is a member of several stock exchanges. The Tribunal agreed with this view, stating that each stock broker should be registered with the Board only once, regardless of multiple memberships.
  
  4. Proper Computation of Registration Fee by the Board:
  The Tribunal found that the Board had improperly calculated the registration fee based on two separate registrations of the company. It concluded that the fee should have been computed based on the initial registration date of 17.10.1995. The Tribunal set aside the impugned order and remitted the case back to the Board for fresh computation of the registration fee, emphasizing that the company should have only one block period starting from its initial registration date.
  
  Conclusion:
  The appeal was allowed, and the Board was directed to recompute the registration fee based on the company's initial registration date of 17.10.1995, with no order as to costs.

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• 2007 (8) TMI 818
  
  Issues Involved:
  1. Recall application under section 5 of the Limitation Act read with section 151 of Civil Procedure Code for condonation of delay.
  2. Sufficiency and validity of service of notice.
  3. Application of Chapter VIII, Rule 12 and Chapter XII, Rule 10 of the Allahabad High Court Rules.
  4. Compliance with provisions of Order V of the Code of Civil Procedure.
  5. Presumption of service under section 114 of the Evidence Act, 1872 and section 27 of the Post Office Act, 1998.
  
  Detailed Analysis:
  
  1. Recall Application and Condonation of Delay:
  The petitioner filed a recall application along with an application under section 5 of the Limitation Act and section 151 of the Civil Procedure Code to condone the delay. The recall application sought to recall the judgment and order dated 20.12.2006, arguing that the notices were not properly served on the respondents, leading to an ex parte decision.
  
  2. Sufficiency and Validity of Service of Notice:
  The petitioner contended that the notices were not served on the respondents, as the postman did not attempt to serve the summons properly. The respondents argued that the notices were returned with remarks indicating that the recipients did not claim them despite repeated attempts. The court found that the notices were sent to the correct addresses and the respondents deliberately avoided receiving them. The court relied on the post office remarks such as "Baad Samay Ke Vapas" and "PRAPTKARTA KE PAS BAR BAR JANE VA SUCHANA DENE PAR BHI NAHIN MILE ATHAH PRESHAK KO VAPAS," indicating that the respondents were informed but did not collect the notices.
  
  3. Application of Chapter VIII, Rule 12 and Chapter XII, Rule 10 of the Allahabad High Court Rules:
  The petitioner argued that Chapter VIII, Rule 12, which provides for service of notice by post or publication, was not followed. However, the court noted that Explanation II to Rule 12 states that a notice sent by registered post shall be deemed to have been served unless received back undelivered. Since the notices were not received back undelivered, they were deemed to have been served. Chapter XII, Rule 10, which applies the provisions of Order V of the Code of Civil Procedure to the service of notice, was also discussed. The court found that the service was sufficient under these rules.
  
  4. Compliance with Provisions of Order V of the Code of Civil Procedure:
  The court examined the provisions of Order V, particularly Rules 9, 17, and 20, which deal with the service of summons. The court found that the notices were sent by registered post and the respondents did not claim them despite being informed. The court noted that there was no need for substituted service as the notices were deemed to have been served under the rules. The court also referred to the Supreme Court's decision in Basant Singh v. Roman Catholic Mission, which held that mere irregularities in service do not render the service invalid.
  
  5. Presumption of Service under Section 114 of the Evidence Act, 1872 and Section 27 of the Post Office Act, 1998:
  The court relied on the presumption of service under section 114 of the Evidence Act and section 27 of the Post Office Act. The court cited the Supreme Court's decision in P.T. Thomas v. Thomas Job, which held that if a notice is correctly addressed and not claimed despite intimation, it is presumed to be served. The court found that the respondents did not rebut this presumption and did not provide evidence to show that the addresses were incorrect or that the notices were not properly sent.
  
  Conclusion:
  The court concluded that the recall application was not maintainable as the notices were deemed to have been served. The respondents deliberately avoided receiving the notices, and there was no evidence to rebut the presumption of service. The court rejected the recall application, stating that the order dated 20.12.2006 was passed on merits and could only be reviewed on limited grounds.

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• 2007 (8) TMI 817
  

  Seeking to release and Pay D.A. with arrears along with interest - management of the school is the direct responsibility of the HCL or not? whether a writ of mandamus could be issued against the management of HCL - Difference Of Opinion between Judges - Principle of equal pay for equal work - Fixing Pay scale at par with the pay scale of Government Secondary School teachers or at par with Grade I and II Clerks - HELD THAT:- We are of the view that the view taken by learned Single Judge appears to be correct that there was no relationship of the management of the HCL with that of the management of the school though most of the employees of the HCL were in the managing committee of the school. But by that no inference can be drawn that the school had been established by the HCL. The children of workers of HCL were being benefited by the education imparted by this school. Therefore, the management of HCL was giving financial aid but by that it cannot be construed that the school was run by the management of HCL. Therefore, under these circumstances, we are of opinion that the view taken by the learned Single Judge appears to be correct.

  Next, it was contended that even if the school is not a part of the management of the HCL, yet a direction could be given to the State of Jharkhand under the Act of 1981 to take over the management of the school and in that connection our attention was invited to the definition of proprietary school as defined in Section 2(d) of the Act.

  Therefore, the Government of Jharkhand in order to fulfill the constitutional mandate has got these students admitted to various schools. Therefore, the studies of the students have not been affected. So far as issuance of mandamus to the State Government for taking over of the proprietary school is concerned, that cannot be issued because the proprietary school as defined under section 2(d) read with Section 19 of the Act will have to make a request to the State of Jharkhand that they will bear all the financial responsibilities. If the Managing Committee makes a request to this effect to the State of Jharkhand, then the Government may consider but at present there is no such offer by the Managing Committee and as such no direction can be given to the State of Jharkhand to grant recognition to proprietary school because nobody is prepared to take the financial responsibilities of the management of the school. Hence, no direction can be issued to the State Government to take over the management of the School.

  In this view of the matter, we are of opinion that the view taken by learned Single Judge of the High Court of Jharkhand appears to be correct and there is no ground to interfere with the impugned order. Consequently, the Civil Appeal is dismissed.

  Fixing Pay scale at par with the pay scale of Government Secondary School teachers or at par with Grade I and II Clerks - After going through the order of the Division Bench we are of opinion that the view taken by the Division Bench of the High Court is correct. Firstly, the school is not being managed by the BCCL as from the facts it is more than clear that the BCCL was only extending financial assistance from time to time. By that it cannot be saddled with the liability to pay these teachers of the school as being paid to the clerks working with BCCL or in the Government of Jharkhand. It is essentially a school managed by a body independent of the management of BCCL. Therefore, BCCL cannot be saddled with the responsibilities of granting the teachers the salaries equated to that of the clerks working in BCCL.

  For application of the principle of equal pay for equal work - There should be total identity between both groups i.e. the teachers of the school on the one hand and the clerks in BCCL, and as such the teachers cannot be equated with the clerks of the State Government or of the BCCL. The question of application of Article 39(d) of the Constitution has recently been interpreted by this Court in State of Haryana and Ors. v. Charanjit Singh and Ors. wherein their Lordships have put the entire controversy to rest and held that the principle, 'equal pay for equal work' must satisfy the test that the incumbents are performing equal and identical work as discharged by employees against whom the equal pay is claimed. Their Lordships have reviewed all the cases bearing on the subject and after a detailed discussion have finally put the controversy to rest that the persons who claimed the parity should satisfy the court that the conditions are identical and equal and same duties are being discharged by them. More so, when we have already held that the appellants are not the employees of BCCL, there is no question seeking any parity of the pay with that of the clerks of BCCL.

  Hence, as a result of our discussion, we do not find any merit in these appeals and the same are dismissed with no order as to costs.

  Markandey Katju, J.- HELD THAT:- In our opinion fixing pay scales by Courts by applying the principle of equal pay for equal work upsets the high Constitutional principle of separation of powers between the three organs of the State. Realizing this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an expert committee appointed by the Government instead of the Court itself granting higher pay).

  It is well settled by the Supreme Court that only because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide Government of West Bengal v. Tarun K. Roy and Ors.[2003 (11) TMI 585 - SUPREME COURT].

  Thus, I concur with the conclusion arrived at by my learned brother Hon'ble A.K. Mathur, J. that the appeals preferred by the appellants deserve to be dismissed. Ordered accordingly.

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• 2007 (8) TMI 816
  
  The Delhi High Court dismissed the appeal in favor of the respondent, citing previous decisions in ITA 1280/2006 and ITA No. 1275/2006 involving Commissioner of Interest Tax and M/s G.E. Capital Transportation. The appellant was represented by Ms. Prem Lata Bansal, Advocate, while there was no representation for the respondent.

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• 2007 (8) TMI 815
  
  Issues involved: Challenge to the order directing acquittal based on applicability of Section 201 IPC and consideration of the right of private defence vis-à-vis the deceased.
  
  Applicability of Section 201 IPC:
  The appeal questioned the order of acquittal by the Karnataka High Court based on the interpretation of Section 201 IPC. The High Court held that Section 201 IPC applies only when an offence has occurred, and the accused has taken actions to conceal evidence or tamper with it. The Supreme Court referred to previous cases like V.L. Tresa v. State of Kerala to establish the elements required for a conviction under Section 201 IPC, emphasizing the need for the accused to have knowledge or reason to believe that an offence has been committed, and to have acted with the intention of screening the offender from legal punishment. The Court reiterated that mere suspicion is not enough, and there must be concrete evidence of the accused's actions to hide evidence. The judgment also highlighted the importance of the accused's intention to screen the offender as a crucial element of the offence under Section 201 IPC.
  
  Consideration of Right of Private Defence:
  The issue of the right of private defence concerning the deceased was raised in the context of Section 106 IPC. Section 106 provides for the right of private defence against a deadly assault even if there is a risk of harm to an innocent person. The Court examined the possibility of the right of private defence in relation to the deceased based on the evidence presented. It was noted that the accused individuals were not part of an unlawful assembly, and specific allegations were made against two of them regarding the disposal of the deceased's body. Despite the lack of belief in the testimony of a key witness, PW-26, by both the trial Court and the High Court, the Supreme Court emphasized that Section 201 IPC could still apply even if the main offence was not proven. Ultimately, the Court found no grounds to interfere with the High Court's decision based on the specific findings regarding the involvement of certain accused individuals.
  
  In conclusion, the Supreme Court dismissed the appeal, upholding the High Court's order of acquittal based on the interpretation of Section 201 IPC and the consideration of the right of private defence in the case at hand.

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• 2007 (8) TMI 814
  
  Issues Involved:
  1. Validity of the statutory notice u/s 138 of the Negotiable Instruments Act.
  2. Whether the complainant was the payee of the cheque.
  3. Proof of the advancement of the loan.
  4. Failure of the accused to rebut the presumption u/s 139 of the Act.
  5. Sentencing of the accused.
  
  Summary:
  
  1. Validity of the Statutory Notice:
  The learned Magistrate concluded that the notice was vague and did not appraise the accused of the actual debt or liability. However, the High Court found that the notice dated 9-9-2005 clearly stated the amount owed, the cheque details, and the demand for payment within fifteen days, failing which a criminal case u/s 138 of the Negotiable Instruments Act would be filed. The High Court held that the notice was sufficient to convey the necessary information to the accused.
  
  2. Whether the Complainant was the Payee:
  The Magistrate concluded that the complainant was not the payee as the cheque was issued in the name of "Pavel Hemant Gracias" instead of "Hemant Pavel Gracias." The High Court disagreed, stating that the interchanging of the first and middle name did not make the complainant a different individual. The bank did not consider the names to represent different individuals, and the cheque was dishonored due to insufficient funds, not because of the name discrepancy. The High Court held that the complainant was indeed the payee as contemplated by Clause (a) of Section 142 of the Act.
  
  3. Proof of the Advancement of the Loan:
  The complainant admitted that he did not mention the date or mode of payment of the Rs. 4,00,000/- loan in his complaint. The High Court noted that the burden of proving the non-existence of debt or liability was on the accused, as per M.M.T.C. Ltd. v. Medchl Chemicals and Pharma(P) Ltd. The accused failed to provide evidence to rebut the presumption of debt or liability.
  
  4. Failure of the Accused to Rebut the Presumption:
  The accused claimed that a blank cheque was given to the complainant with a promise of a loan of Rs. 1,00,000/-, which was never advanced. The High Court found this claim improbable, noting that the accused did not react to the statutory notice or take any action against the complainant for misusing the cheque. The High Court held that the accused failed to rebut the presumption u/s 139 of the Act.
  
  5. Sentencing of the Accused:
  The High Court set aside the acquittal and held the accused guilty u/s 138 of the Act. Considering the circumstances, the accused was sentenced to undergo simple imprisonment for four months and to pay a compensation of Rs. 4.60 lakhs, failing which he would undergo further simple imprisonment for six months. The accused was directed to surrender before the trial court within four weeks to undergo the sentence.

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• 2007 (8) TMI 813
  
  Issues Involved:
  1. Unusual movement in share price and volume of DSQ Software Ltd.
  2. Fraudulent allotment and offloading of shares by the company's promoter.
  3. Synchronized and circular trades by associates of the promoter.
  4. Involvement of Accord Capital Markets Ltd. in executing synchronized trades.
  5. Violations of SEBI regulations by Accord Capital Markets Ltd.
  6. Appointment of Enquiry Officer and subsequent proceedings.
  7. Consideration of issues and findings regarding the Broker's conduct.
  8. Imposition of penalty on Accord Capital Markets Ltd.
  
  Detailed Analysis:
  
  1. Unusual Movement in Share Price and Volume of DSQ Software Ltd.
  The shares of DSQ Software Ltd. experienced a significant price increase from Rs. 255 to Rs. 2631 between October 1, 1999, and March 31, 2000, followed by a sharp decline to Rs. 149 by March 31, 2001. This volatility was accompanied by high trading volumes, sometimes reaching 1,000,000 shares daily at NSE and BSE.
  
  2. Fraudulent Allotment and Offloading of Shares by the Company's Promoter
  SEBI's investigation revealed that the promoter fraudulently allotted 1.7 crore shares to group/associate entities, out of which 1.3 crore shares were offloaded in the market before listing. This generated Rs. 630 crores, calculated based on the average share price at the time. The promoter's associates sold these shares through synchronized trades, creating an artificial market.
  
  3. Synchronized and Circular Trades by Associates of the Promoter
  The investigation found that associates of the promoter engaged in synchronized and circular trades, significantly contributing to the trading volumes at NSE, BSE, and CSE. These trades were executed through various stock brokers, creating an artificial market without changing beneficial ownership.
  
  4. Involvement of Accord Capital Markets Ltd. in Executing Synchronized Trades
  Accord Capital Markets Ltd. (the Broker) was found to have executed substantial synchronized trades in the shares of DSQ Software Ltd. for its client Mehta & Ajmera, a partnership firm of its major shareholders and directors. The Broker's proprietary trades also showed synchronization with other brokers, indicating a prior understanding.
  
  5. Violations of SEBI Regulations by Accord Capital Markets Ltd.
  The Broker was alleged to have violated Regulation 4(b), (c), and (d) of the FUTP Regulations, Clauses A(1) to (4) of the Code of Conduct under the Broker Regulations, and SEBI circular dated September 14, 1999. The Broker's trades created a misleading appearance of trading, artificial volume, and price in DSQ Software Ltd.'s shares.
  
  6. Appointment of Enquiry Officer and Subsequent Proceedings
  SEBI appointed an Enquiry Officer to investigate the alleged violations by the Broker. The Enquiry Officer recommended a major penalty of suspension of the Broker's certificate of registration for 24 months. The Broker was issued a show-cause notice and given opportunities to present its case.
  
  7. Consideration of Issues and Findings Regarding the Broker's Conduct
  The Broker's arguments, including the claim that no enquiry could be initiated under the repealed FUTP Regulations, were dismissed. The investigation established the Broker's close business relationship with the promoter and its involvement in synchronized trades. The Broker's trades were found to be executed with prior understanding, contributing to market manipulation.
  
  8. Imposition of Penalty on Accord Capital Markets Ltd.
  Considering the Broker's involvement in creating a misleading market and violating SEBI regulations, a major penalty was imposed. The certificate of registration of Accord Capital Markets Ltd. was suspended for twelve months, effective 21 days from the date of the order.
  
  Conclusion:
  The judgment highlights the fraudulent activities and market manipulation by DSQ Software Ltd.'s promoter and associates, with significant involvement from Accord Capital Markets Ltd. The Broker's synchronized trades were found to violate multiple SEBI regulations, leading to the suspension of its registration. The decision underscores SEBI's commitment to maintaining market integrity and protecting investors.

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