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1985 (9) TMI 360
Issues:
Application for interim stay of operation of a court order granting temporary mandatory injunction for restoration of possession. Jurisdiction of the court to grant temporary mandatory injunction under Section 151 of the Civil Procedure Code (CPC) in violation of interim injunction. Interpretation of Order 39, Rule 2A of CPC. Court's inherent power to grant immediate relief in cases of dispossessions despite interim injunction. Applicability of Section 151 of CPC for granting temporary mandatory injunction.
Analysis:
1. Jurisdiction to Grant Temporary Mandatory Injunction: The case involved an application for interim stay of a court order granting a temporary mandatory injunction for restoration of possession. The petitioner challenged the court's jurisdiction to entertain an application under Section 151 of the CPC for a temporary mandatory injunction. The petitioner contended that Order 39, Rule 2A provides the only remedy for violation of temporary or interim injunctions. However, the court held that in cases of serious injury or dispossessions despite interim injunctions, the court has inherent power to grant immediate relief to prevent injustice.
2. Interpretation of Order 39, Rule 2A: The petitioner argued that Order 39, Rule 2A is a provision for execution of orders for temporary injunctions and that Section 151 of the CPC has no application in cases of violation of temporary injunctions. The court, however, emphasized that when the injury is grave and immediate relief is necessary, the court's inherent power can be invoked to grant a temporary mandatory injunction for restoration of possession.
3. Court's Inherent Power: The court relied on precedents to establish that the court's inherent power under Section 151 of the CPC allows it to grant relief beyond the specific provisions of the Code. The court highlighted that technicalities should not prevent the court from delivering justice, especially in cases where immediate relief is essential to prevent further harm or injustice.
4. Precedents and Legal Interpretations: The court cited various legal precedents, including decisions from the Supreme Court and other High Courts, to support its interpretation of the court's inherent power to grant temporary mandatory injunctions in cases of dispossessions despite interim injunctions. The court emphasized that the purpose of such injunctions is to prevent injustice and restore the aggrieved party's rights.
5. Final Decision: Ultimately, the court affirmed the impugned order of the learned Judge, dismissing the appeal, the alternative application under Section 115 of the CPC, and the application for interim stay. The court concluded that the learned Judge was justified in passing the mandatory injunction under Section 151 of the CPC to restore possession to the opposite party. No costs were awarded, and the prayer for stay of operation was disallowed.
This detailed analysis showcases the court's interpretation of legal provisions, precedents, and the exercise of inherent powers to grant relief in cases of dispossessions despite interim injunctions. The judgment emphasizes the court's duty to prevent injustice and deliver immediate relief when necessary.
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1985 (9) TMI 359
Issues Involved:
1. Whether the shares in the company standing in the names of the various members of the family are joint family properties?
2. Whether the commission received by the two members of the family from the managing agency firm belongs to the joint family?
3. Whether the remuneration received by the plaintiff as managing agent is personal property or joint family property?
4. Whether the remuneration paid to the plaintiff as managing director is personal income or joint family property?
5. Whether there was any amount in cash in Mahalaxmi room belonging to the family and if so, how much?
6. Whether there were any ornaments and jewelry belonging to the joint family, and if so, in whose possession and custody are such ornaments lying and what is the value of such ornaments?
Detailed Analysis:
1. Shares in the Company:
The court determined that 200 shares in the name of defendant No. 2, 125 shares in the name of the plaintiff, 79 shares subsequently acquired by the plaintiff, and 4 shares in the name of defendant No. 1 were purchased with joint family funds and thus belong to the joint family. Each branch of the family has an equal 1/3 share in these 408 shares. Shares purchased by the parties after the disruption of the joint family status were not considered joint family property.
2. Commission from Managing Agency Firm:
The court held that the commission received by the plaintiff and defendant No. 2 from the managing agency firm belongs to the joint family. The entire income earned by them on the basis of the managing agency agreement was considered joint family property. The plaintiff is required to render accounts of all such amounts received and pay each of the other branches their 1/3 share.
3. Remuneration as Managing Agent:
The court concluded that the remuneration received by the plaintiff as managing agent on the basis of the managing agency agreement is joint family property. The plaintiff's claim that this remuneration should be apportioned for services rendered by him was rejected. The court emphasized that the income earned by the plaintiff as managing agent was for and on behalf of the joint family and thus forms part of the joint family property.
4. Remuneration as Managing Director:
The court found that the remuneration received by the plaintiff as managing director, appointed in 1957, is his personal income and does not belong to the joint family. The court noted that at the time of his appointment, the joint family had already disrupted, and the appointment was made for services to be rendered by the plaintiff, not as a return on the investment of the joint family.
5. Cash in Mahalaxmi Room:
The court acknowledged that there was some cash money belonging to the joint family in the Mahalaxmi room, but it was difficult to ascertain the exact amount. The plaintiff claimed there was approximately a lakh of rupees, while the receiver found over Rs. 21,000. The court decided to consider a reasonable amount while passing the final decree.
6. Ornaments and Jewelry:
The court held that there was no proper evidence to establish that any ornaments, jewelry, or utensils belonging to the joint family were in the possession of any particular party. It concluded that these movables had already been partitioned, and whatever ornaments, jewelry, and utensils are in the possession of any of the parties now belong to them individually.
Final Decree:
1. The plaintiff will pay Rs. 2 lakhs to the defendants, divided equally between the two branches.
2. The payment must be made within two months, failing which interest at 13.9% per annum will be applied from December 1, 1985.
3. The 408 shares will be divided equally among the three branches, with each branch receiving 136 shares.
4. The plaintiff's son, Mr. S.B. Sulakhe, is appointed Commissioner to divide the shares without remuneration.
5. The amount payable to the plaintiff from the cash in Mahalaxmi room is considered in the decree for Rs. 2 lakhs.
6. No party has any claim against the other for any joint family ornaments, jewelry, and utensils.
7. There are no other joint family properties for which any claims can be made.
8. Costs already paid by the plaintiff to the defendants will not be recoverable, and the parties will bear their own costs.
The court set aside any contrary findings or directions of the High Court and allowed the appeals to that extent.
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1985 (9) TMI 358
Issues Involved:
1. Maintainability of the suit.
2. Extension of the lease deed dated 1st Feb. 1955 for a period of 25 years.
3. Entitlement of the defendant to the benefit of such extension.
4. Entitlement of the plaintiff to a decree for recovery of khas possession of the suit property and for damages.
5. Reliefs to which the plaintiff is entitled.
Issue-wise Detailed Analysis:
1. Maintainability of the Suit:
The trial court found the suit maintainable as the issue was not pressed during the trial. The court observed that the suit was in proper form and there was no defect in the same.
2. Extension of the Lease Deed:
The lease deed dated 1st Feb. 1955, granted for 25 years, expired on 31st Jan. 1980. The plaintiffs argued that the lease was not extended as the defendants failed to exercise the renewal option per Clause 10 of the lease. The defendants claimed that they had exercised the renewal option through a letter dated 9th Oct. 1979 (Ext. 3), but the court found this letter insufficient as it did not comply with all the terms of Clause 10, particularly regarding payment of mesne profits and addressing the proper authority.
3. Entitlement of the Defendant to the Benefit of Extension:
The court held that the defendants were not entitled to the extension of the lease. The defendants' argument that the lease was automatically renewed under Sections 5 and 7 of the ESSO (Acquisitions of Undertakings in India) Act, 1974, was rejected. The court found no evidence that the flat was used for business purposes of ESSO in India, which was necessary for the application of the said Act. The flat was used for residential purposes for the officers of the defendants, which did not meet the criteria of "appertaining to the business carried on by ESSO in India."
4. Entitlement of the Plaintiff to a Decree for Recovery of Khas Possession and Damages:
The court ruled in favor of the plaintiffs, granting them recovery of khas possession and damages. It was observed that the lease had expired and was not duly renewed. The defendants' continued occupation was deemed unauthorized.
5. Reliefs to which the Plaintiff is Entitled:
The court decreed the suit in favor of the plaintiffs, granting them the reliefs sought, including recovery of possession and damages. The defendants were not entitled to any protection against eviction as they failed to properly exercise the renewal option and their occupation was unauthorized post-expiry of the lease.
Additional Considerations:
- Automatic Renewal Argument: The defendants' claim of automatic renewal under the ESSO Act was dismissed. The court emphasized that any renewal had to be explicitly requested and properly executed, which was not done in this case.
- Addressing Proper Authority: The court noted that the renewal request (Ext. 3) was addressed to a minor who had no authority to grant the renewal, further invalidating the defendants' claim.
- Additional Evidence: An application to admit additional evidence (two letters) was allowed, as it was found necessary for a just determination of the case and did not prejudice the defendants.
Conclusion:
The appeal was dismissed, and the trial court's judgment in favor of the plaintiffs was upheld. The plaintiffs were entitled to recover possession of the property and damages, while the defendants' claims for lease renewal and protection against eviction were rejected.
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1985 (9) TMI 357
Issues Involved:
1. Declaration of title over B, C, and D schedule lands.
2. Validity of deeds of gift and sale deed.
3. Allegations of fraud and deception.
4. Suit barred by the law of limitation.
5. Burden of proof regarding execution of deeds by an illiterate lady.
Detailed Analysis:
1. Declaration of Title Over B, C, and D Schedule Lands:
The deceased respondent Champa Dibya, represented by her successor Bhabani Dei, sought a declaration of her title over the B, C, and D schedule lands. The trial court accepted Champa's case and declared her title over the suit properties. It was held that Champa and defendant 1 were each entitled to an eight-annas share out of Schedule 'A' properties. The court ordered a partition if no amicable settlement was reached within a month.
2. Validity of Deeds of Gift and Sale Deed:
Champa claimed that the deeds of gift and the sale deed were executed by her under fraud and deception. The trial court found these deeds invalid and set them aside. The gift deeds (Exts. A and A/1) in favor of defendants 2 and 4 and the sale deed in favor of defendant 5 were declared invalid. The appellate court upheld this finding, emphasizing that Champa was an illiterate lady and the deeds were executed without her understanding the nature of the transactions.
3. Allegations of Fraud and Deception:
Champa alleged that appellant 2, taking advantage of her illness and illiteracy, fraudulently obtained her signatures on the deeds by misrepresenting them as a power-of-attorney. The trial court found that Champa was unaware of the true nature of the transactions and that the deeds were executed under undue influence. The appellate court agreed, noting that Champa was under the care of appellant 2, who exploited her vulnerability.
4. Suit Barred by the Law of Limitation:
The appellants attempted to argue that the suit was barred by the law of limitation, citing Article 59 of the Limitation Act. However, this ground was not raised in the written statement or the memorandum of appeal. The appellate court refused to entertain this contention, stating that the date of knowledge regarding the execution of deeds is a question of fact and should have been raised earlier to allow proper evidence to be led.
5. Burden of Proof Regarding Execution of Deeds by an Illiterate Lady:
The court emphasized that the burden of proof lies on the person transacting with a pardanashin or illiterate lady to show that the terms are fair and equitable and that she had independent advice. The appellate court cited precedents, including the Privy Council and the Supreme Court, to affirm that the onus is on the person relying on the deed to prove that the lady understood the nature and effect of the transaction. The court found that the appellants failed to discharge this burden, as there was no evidence that Champa had independent advice or understood the contents of the deeds.
Conclusion:
The appellate court upheld the trial court's findings, maintaining the judgment and decree. The appeal was dismissed with costs to respondent 1/a. The court reiterated the principles protecting illiterate and pardanashin ladies in property transactions, emphasizing the need for independent advice and a clear understanding of the transaction.
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1985 (9) TMI 356
Issues Involved
1. Prosecution Version of the Occurrence
2. Motive
3. Dying Declarations
4. Medical Evidence
5. Conduct of the Accused
6. Investigation
7. Conclusion
Detailed Analysis
1. Prosecution Version of the Occurrence
The prosecution alleged that Sudha was set on fire by her mother-in-law, Shakuntala, with kerosene, and that her husband, Laxman, and brother-in-law, Subhash, were complicit. The trial court accepted this version, convicting the accused and sentencing them to death. However, the High Court acquitted the accused, questioning the reliability of the prosecution witnesses and the lack of direct evidence.
2. Motive
The prosecution argued that Sudha was subjected to harassment and demands for dowry by her in-laws, which led to her murder. The High Court, however, found that the relationship between Sudha and her in-laws was not strained, citing letters that showed cordial relations. The Supreme Court disagreed, noting evidence of demands for dowry and mistreatment, especially during Sudha's pregnancy.
3. Dying Declarations
Sudha made several oral dying declarations implicating her mother-in-law and husband. The High Court questioned the consistency and reliability of these declarations. A written dying declaration was also recorded by a police officer, but its authenticity was doubted due to procedural lapses. The Supreme Court found the oral declarations credible for corroborative purposes but rejected the written declaration due to inconsistencies and lack of proper attestation.
4. Medical Evidence
The medical evidence confirmed that Sudha suffered 70% burns. The prosecution argued that the burns were consistent with kerosene being poured on her and set alight. The defense claimed it was an accidental fire from a kerosene stove. The Supreme Court found the prosecution's version more plausible, noting that Sudha's advanced pregnancy made it unlikely she would squat to light a stove, and there was no evidence the gas stove was not functional.
5. Conduct of the Accused
The conduct of the accused at the time of the incident was scrutinized. The prosecution witnesses testified that the accused were indifferent and did not help extinguish the fire. The High Court questioned the credibility of these witnesses, but the Supreme Court found their testimonies trustworthy, noting that the neighbors' spontaneous response was inconsistent with any alleged animosity towards the accused.
6. Investigation
The High Court criticized the investigation, particularly the recording of the dying declaration by a police officer instead of a magistrate or doctor. The Supreme Court agreed that the investigation had procedural flaws but emphasized that the oral dying declarations and other evidence were sufficient to establish guilt.
7. Conclusion
The Supreme Court concluded that the relationship between Sudha and her in-laws was strained due to dowry demands and mistreatment. It found that Sudha's death was not accidental but a result of intentional burning by her mother-in-law and husband. While the High Court's acquittal of Subhash was upheld due to insufficient evidence of his direct involvement, Shakuntala and Laxman were convicted of murder and sentenced to life imprisonment instead of the death penalty, considering the time elapsed since their acquittal and other mitigating factors.
Separate Judgments
The judgment does not indicate separate judgments by different judges; hence, it is presented as a unified decision by the Supreme Court.
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1985 (9) TMI 355
Issues Involved:
1. Whether the contract was for the sale of specific goods in a deliverable state.
2. Whether the property in the goods passed to the plaintiff upon acceptance of the tender.
3. Whether the cancellation of the sale order by the defendants was lawful.
4. Whether the plaintiff was entitled to a declaration of title and permanent injunction.
Issue-wise Detailed Analysis:
1. Whether the contract was for the sale of specific goods in a deliverable state:
The plaintiff argued that the contract was for the sale of specific goods in a deliverable state, and thus the property in the goods passed to him upon acceptance of the tender. The defendants contended that the contract was merely an agreement to sell and not for specific goods in a deliverable state. The High Court concluded that the goods in question were specific goods in a deliverable state as the defendant had nothing to do before delivery was taken by the plaintiff. The measurement in accordance with the sectional weight chart was for the satisfaction of the plaintiff, and the goods were identified and agreed upon at the time of the sale.
2. Whether the property in the goods passed to the plaintiff upon acceptance of the tender:
The plaintiff claimed that the property in the goods passed to him when the contract was made, as it was an unconditional contract for the sale of specific goods in a deliverable state. The defendants argued that the property did not pass to the plaintiff as the contract was conditional upon the fulfillment of certain terms. The High Court held that under Section 20 of the Sale of Goods Act, where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made. The High Court accepted the plaintiff's contention that the property in the goods passed to him upon acceptance of the tender.
3. Whether the cancellation of the sale order by the defendants was lawful:
The plaintiff contended that the cancellation of the sale order by the defendants was illegal, invalid, and without jurisdiction as the property in the goods had already passed to him. The defendants argued that they had the right to cancel the contract as the plaintiff failed to fulfill his obligations within the stipulated time. The High Court found that since the property in the goods had already passed to the plaintiff, the defendants were not entitled to cancel the contract and resell the balance of the articles. The cancellation of the sale order by the defendants was thus held to be unlawful.
4. Whether the plaintiff was entitled to a declaration of title and permanent injunction:
The plaintiff sought a declaration of his title to the remaining 250 Metric Tonnes of M. S. Rounds of 28 dia and a permanent injunction restraining the defendants from removing and reselling the goods. The High Court concluded that the plaintiff had valid and legal title to the goods in dispute and was entitled to the declaration of title and permanent injunction. The decision of the Trial Court, which granted the plaintiff the declaration of title and permanent injunction, was restored by the High Court.
Conclusion:
The High Court allowed the appeal, set aside the judgment and decree of the learned Additional District Judge, and restored the decision of the learned Subordinate Judge. The plaintiff was declared to have valid and legal title to the goods in dispute, and the defendants were restrained from removing and reselling the same. The appeal was allowed without any order as to costs.
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1985 (9) TMI 354
Issues:
1. Whether the loan interest rate of 121/1% p.a. and 21% p.a. in case of default is excessive and usurious under the Usurious Loans Act 10 of 1918.
2. Adjustment of a fixed deposit amount towards the debt due.
3. Legality of the interest rate of 21% p.a. in case of default.
4. Applicability of the Banking Laws (Amendment) Act 1983 and S. 21-A of the Banking Regulation Act 10 of 1949.
Analysis:
1. The appeal questioned if the loan interest rate of 121/1% p.a. and 21% p.a. in case of default was excessive and usurious under the Usurious Loans Act 10 of 1918. The Court referred to the Madras Amendment Act 8 of 1937, which introduced provisions presuming a transaction unfair if the interest is excessive. The Court held that the Usurious Loans Act empowered relief if interest was found excessive and the transaction unfair, with criteria to determine excessiveness. The Madras Amendment eased the provision's rigour by adding presumptions and privileges for agriculturists.
2. The appellant contended that a fixed deposit amount of Rs. 10,000 in the plaintiff-bank should adjust towards the debt due, but the Court rejected this, stating that without a specific agreement or instructions, adjustment was not permissible. The absence of any agreement or instructions between the parties led to the dismissal of this contention.
3. The appellant argued that the interest rate of 21% p.a. in case of default was illegal, penal, usurious, and against public policy. The Court considered past cases where compound interest rates of 18% and 24% were deemed reasonable. However, the Banking Laws (Amendment) Act 1983 inserted S. 21-A in the Banking Regulation Act 10 of 1949, making the Usurious Loans Act inapplicable to transactions between banking companies and debtors. As the debtor was not an agriculturist, S. 21-A governed the debt, rendering the Usurious Loans Act irrelevant.
4. S. 21-A of the Banking Regulation Act 10 of 1949 stated that the rate of interest charged by a banking company in a transaction with its debtor could not be scrutinized by courts for excessiveness, overriding the Usurious Loans Act. This provision made it clear that the Usurious Loans Act no longer applied to debts owed to banking companies. Consequently, the Court dismissed the appeal as the Usurious Loans Act was no longer relevant due to the Banking Laws Amendment Act 1983 and S. 21-A.
In conclusion, the Court dismissed the appeal based on the inapplicability of the Usurious Loans Act to debts owed to banking companies under the Banking Laws (Amendment) Act 1983 and S. 21-A of the Banking Regulation Act 10 of 1949.
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1985 (9) TMI 353
Issues Involved:
1. Applicability of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 to home workers in the beedi industry.
2. Implementation challenges of the Employees' Provident Funds Act and Scheme for home workers.
3. Alleged violation of Fundamental Rights due to financial burden on the beedi industry.
Summary:
1. Applicability of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 to home workers in the beedi industry:
The primary issue was whether home workers in the beedi industry are "employees" u/s 2(f) of the Employees' Provident Funds Act. The Court held that home workers, by rolling beedis, are involved in activities connected with the work of the factory and thus fall within the definition of "employee." The Court rejected the narrow interpretation that the term "in connection with" should be confined to work performed within the factory premises. The right of rejection of sub-standard beedis by the manufacturer was considered sufficient evidence of supervision and control, establishing a master-servant relationship.
2. Implementation challenges of the Employees' Provident Funds Act and Scheme for home workers:
The petitioners argued that the Scheme could not be applied to home workers due to the absence of a fixed retirement age. The Court clarified that the law does not require a predetermined age of superannuation for the Scheme to be applicable. The term "retirement" was interpreted broadly to include normal cessation of service by either the employer or the worker after attaining the age of 55 years. The Court found no substantial reason why the provisions of the Act and Scheme should not apply to home workers where their terms permit such application.
3. Alleged violation of Fundamental Rights due to financial burden on the beedi industry:
The petitioners contended that the financial burden imposed by extending the Employees' Provident Funds Act and Scheme to the beedi industry was excessive and violated their Fundamental Rights u/s Article 14, sub-cl. (g) of cl. (1) of Article 19, and Article 31 of the Constitution. The Court found no adequate material to support this submission and rejected the contention.
Conclusion:
The Court dismissed the writ petitions and connected special leave petitions, upholding the applicability of the Employees' Provident Funds Act and Scheme to home workers in the beedi industry. There was no order as to costs.
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1985 (9) TMI 352
Issues Involved:
1. Constitutional validity of Section 1(3) of the Haryana Urban (Control of Rent and Eviction) Act, 1973.
2. Retrospective operation of the amended provision and its impact on vested rights.
Summary:
Issue 1: Constitutional Validity of Section 1(3)
The primary issue in these writ petitions is the constitutional validity of Section 1(3) of the Haryana Urban (Control of Rent and Eviction) Act, 1973, as amended by the Amending Act of 1978. The petitioners argue that the provision is arbitrary and violative of Article 14 of the Constitution. They contend that the provision discriminates between buildings constructed before and after the commencement of the Act, thereby creating an invidious distinction between landlords and tenants based on the time of completion of the buildings. The petitioners assert that this classification has no reasonable nexus with the object of the Act, which is to afford protection to tenants.
The Court, however, finds no merit in these contentions. It holds that the classification of buildings based on the date of commencement of the Act is rational and has a clear nexus with the object to be achieved, which is to encourage the construction of new buildings to mitigate the hardship of tenants caused by the scarcity of accommodation. The Court refers to previous decisions, including Motor General Traders v. State of Andhra Pradesh and Punjab Tin Supply Co. Chandigarh v. Central Government, to support its conclusion that the exemption provided in Section 1(3) is neither arbitrary nor violative of Article 14.
Issue 2: Retrospective Operation and Vested Rights
The petitioners also argue that the amended provision operates retrospectively and seeks to take away their vested rights under the Act. They claim that the tenants had acquired a vested right to be governed by the Act prior to its amendment. The Court rejects this argument, stating that the provision is not retrospective in operation. It clarifies that the provision operates prospectively from the date of its incorporation in the Act by the amendment, even though it applies to buildings completed on or after the commencement of the Act in 1973.
The Court further explains that the original provision, which might have been constitutionally invalid due to the indefinite period of exemption, did not confer any vested rights on the tenants. It emphasizes that the Legislature has the authority to remove any defects or lacunae in the law by passing a validating Act, which can be done with retrospective effect, provided it is within the competence of the Legislature.
Conclusion:
The writ petitions challenging the constitutional validity of Section 1(3) of the Haryana Urban (Control of Rent and Eviction) Act, 1973, and its retrospective operation are dismissed. The Court finds that the provision is neither arbitrary nor violative of Article 14 and that it does not operate retrospectively to take away any vested rights of the petitioners. There is no order as to costs.
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1985 (9) TMI 351
Issues Involved:
1. Whether the tenancies created by Brig. Bhawani Shanker are binding on the decree-holder.
2. Whether the tenancies created during the pendency of the suit are hit by Section 52 of the Transfer of Property Act.
3. Whether the decree-holder is estopped from challenging the right of the objectors to hold possession.
4. Whether the decree-holder is entitled to actual possession or merely symbolic possession.
5. Whether the sale deed executed and registered in favor of the decree-holder is a nullity.
Issue-wise Detailed Analysis:
Issue 1: Binding Nature of Tenancies Created by Brig. Bhawani Shanker
The court held that Brig. Bhawani Shanker had no title or right with respect to the property in question. Since he had no right or title, he could not create any valid tenancies. The court cited Rentala Lachaiah v. Chimmapudi Subrahmanyam, where it was held that tenancy rights could not be created by a person who had no title in the property. Thus, the tenancies created by Brig. Bhawani Shanker were not binding on the decree-holder.
Issue 2: Tenancies and Section 52 of the Transfer of Property Act
The court noted that according to Section 52 of the Transfer of Property Act, any transfer of property during the pendency of a suit is not binding on the decree-holder. The tenancies in favor of SMS Corporation and Batliboi were created after the Transfer of Property Act came into force in Delhi (December 1, 1962) and during the pendency of the suit. Therefore, these tenancies were invalid. The court also emphasized that the principles underlying Section 52, which are based on justice, equity, and good conscience, would apply even if the Act were not in force.
Issue 3: Estoppel and Waiver
The court examined the letter dated February 23, 1983, and the application filed by the decree-holder in the Supreme Court. The court concluded that neither the letter nor the application constituted an acceptance of the objectors as tenants. The letter explicitly stated that the decree-holder did not recognize the objectors as tenants and demanded possession from them. The court held that there was no waiver or estoppel, and the objectors did not become tenants under the decree-holder.
Issue 4: Entitlement to Physical Possession
The court rejected the argument that the decree-holder was only entitled to symbolic possession. It relied on the Supreme Court judgment in Babu Lal v. Hazari Lal Kishori Lal, which held that possession is inherent in a decree for specific performance. The court noted that the suit for specific performance was brought before the Specific Relief Act, 1963 came into force, and the decree-holder had complied with the decree by depositing the purchase money. Thus, the decree-holder was entitled to physical possession of the property.
Issue 5: Validity of the Sale Deed
The court addressed the objections regarding the procedure followed in executing the sale deed. It held that the sale deed was executed in accordance with the decree, which provided that the Registrar of the court should execute the sale deed if the judgment-debtors failed to do so within two months. The omission to obtain objections from the judgment-debtors regarding the draft of the sale deed was deemed a technical and formal defect that did not prejudice the judgment-debtors. Therefore, the sale deed was not a nullity and was binding.
Conclusion:
The court dismissed all objection petitions and held that the decree-holder was entitled to physical possession of the property. The objectors were given 15 days to vacate the premises and hand over possession to the decree-holder. If they failed to do so, the court directed the issuance of warrants of possession and authorized the use of police aid to deliver possession.
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1985 (9) TMI 350
Issues Involved:
1. Validity of Dismissal Orders without Inquiry.
2. Applicability of Clause (b) of the Second Proviso to Article 311(2) and Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.
3. Allegations of Mala Fide Actions and Practicality of Holding Inquiry.
4. Departmental and Judicial Remedies Available to Civil Servants.
Summary:
1. Validity of Dismissal Orders without Inquiry:
The appellants, employed in the Research and Analysis Wing (RAW) of the Cabinet Secretariat, Government of India, were dismissed from service without serving any charge-sheet or holding an inquiry, invoking clause (b) of the second proviso to Article 311(2) of the Constitution of India and Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The Delhi High Court dismissed their writ petition challenging the dismissal orders, leading to the present appeals.
2. Applicability of Clause (b) of the Second Proviso to Article 311(2) and Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965:
The Supreme Court referred to the decision in Union of India v. Tulsiram Patel [1985] 3 S.C.C. 398, which interpreted Articles 309, 310, and 311 of the Constitution, particularly the second proviso to Article 311(2). The Court noted that the second proviso to Article 311(2) becomes applicable in cases where it is not reasonably practicable to hold an inquiry. The conditions precedent for applying clause (b) are the existence of a situation making the holding of an inquiry not reasonably practicable and the disciplinary authority recording its reasons in writing.
3. Allegations of Mala Fide Actions and Practicality of Holding Inquiry:
The appellants contended that the dismissal orders were mala fide and that an inquiry was reasonably practicable. They argued that the suspension orders indicated a contemplated disciplinary inquiry and that nothing had changed to make the inquiry impracticable. However, the Court found that the situation had deteriorated after the suspension orders, with an all-India pen-down strike spreading, leading to complete insubordination and a breakdown of discipline. The affidavits filed showed that the atmosphere was so tense that no witness would cooperate with any proceedings. The Court held that the disciplinary authority was justified in concluding that an inquiry was not reasonably practicable.
4. Departmental and Judicial Remedies Available to Civil Servants:
The Court emphasized that civil servants dismissed under the second proviso to Article 311(2) have the right to a full and complete inquiry in a departmental appeal or revision unless a situation envisaged by the proviso is prevailing at the time of the hearing. The Court directed the appellants to file departmental appeals by October 31, 1985, and instructed the appellate authority to condone the delay and dispose of the appeals expeditiously.
Final Orders:
The Supreme Court dismissed both appeals, vacated the interim orders, and allowed the appellants to retain any payments made under interim orders. The appellants were granted time to file departmental appeals, with directions for the appellate authority to condone the delay and dispose of the appeals in accordance with the principles laid down in Tulsiram Patel's case. No order as to costs was made.
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1985 (9) TMI 349
Issues Involved:
1. Whether the activity of electroplating constitutes "manufacture" under Section 32A of the Income-tax Act, 1961.
2. Whether the assessee is entitled to investment allowance for job works in electroplating.
3. Whether the ownership of raw materials impacts the eligibility for investment allowance.
Issue-wise Detailed Analysis:
1. Whether the activity of electroplating constitutes "manufacture" under Section 32A of the Income-tax Act, 1961:
The assessee, engaged in electroplating various items, claimed investment allowance under Section 32A. The Commissioner argued that electroplating is akin to galvanizing, which the Calcutta High Court in CIT v. Hindusthan Metal Refining Works (P.) Ltd. [1981] held does not constitute "manufacture." The assessee countered with technical opinions and case law, asserting that electroplating involves complex processes and results in a commercially different product. The Tribunal noted that electroplating involves multiple stages (degreasing, pickeling, polishing, etc.) and transforms items into commercially different products with improved qualities. The Tribunal distinguished electroplating from galvanizing, emphasizing that electroplating adds new qualities to the product, thus constituting "manufacture."
2. Whether the assessee is entitled to investment allowance for job works in electroplating:
The departmental representative argued that job works do not qualify for investment allowance, citing the Tribunal's decision in ITO v. Ahura Shipping & Engg. Co. (P.) Ltd. [1984]. The Tribunal, however, referred to a Special Bench decision in Thiagaraja Industries v. ITO [1983], which held that the ownership of raw materials is not a statutory requirement for claiming investment allowance. The Tribunal emphasized that the machinery must be owned by the assessee and used for its business. Electroplating, involving a transformation of the product, meets these criteria, making the assessee eligible for investment allowance.
3. Whether the ownership of raw materials impacts the eligibility for investment allowance:
The Tribunal clarified that Section 32A does not mandate the ownership of raw materials by the assessee. The focus is on the ownership of machinery and its use in the business. The Tribunal cited the Special Bench decision in Thiagaraja Industries, which supported the view that the statutory requirements are satisfied as long as the machinery is owned by the assessee and used for manufacturing or production. Therefore, the ownership of raw materials is irrelevant to the eligibility for investment allowance.
Separate Judgments Delivered:
The Judicial Member disagreed with the Accountant Member, arguing that electroplating does not result in a commercially different product and that the assessee, engaged in job works, does not qualify for investment allowance. The Judicial Member relied on the Tribunal's decision in Deepak Galvanising & Engg. Industries v. ITO and the Madras High Court decision in CIT v. Buhari Sons (P.) Ltd.
Third Member's Decision:
The Vice President, acting as the Third Member, resolved the difference by agreeing with the Accountant Member. The Third Member emphasized that electroplating involves various processes resulting in a commercially different product, thus constituting "manufacture." The Third Member also supported the view that the ownership of raw materials is not a requirement for investment allowance, aligning with the Special Bench decision in Thiagaraja Industries.
Conclusion:
The Tribunal, by majority decision, allowed the appeal, holding that the assessee engaged in electroplating is entitled to investment allowance under Section 32A. The order of the Commissioner was set aside, and the ITO's order allowing the investment allowance was restored.
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1985 (9) TMI 348
Issues Involved:
1. Legality of the Transport Authority's resolution dated 16th October 1981.
2. Jurisdiction of the Transport Authority in modifying the route without formal applications.
3. Defective publication of applications for route inclusion.
Summary:
1. Legality of the Transport Authority's Resolution:
The petitioners challenged the legality of an order dated 18th May 1982 by the State Transport Appellate Tribunal, which set aside a resolution dated 16th October 1981 by the Regional Transport Authority, Moradabad. The Tribunal found that the proceedings of 16th October 1981 were invalid as one of the members, Sri Janardan Prasad, participated without any legal authority. The Tribunal held that the Transport Authority constituted by the notification dated 29th July 1981 ceased to exist upon the issuance of a new notification on 14th October 1981, making any decisions taken thereafter void.
2. Jurisdiction of the Transport Authority:
The Tribunal ruled that the Transport Authority acted without jurisdiction by including a portion of the route between Bhootpuri and Jaspur in the permits without formal applications for modification. The Tribunal directed that the petitioners should make formal applications for the amendment of the route. The court upheld this view, emphasizing that the Transport Authority must follow the procedural requirements as mandated by law.
3. Defective Publication of Applications:
The Tribunal found the publication of the applications defective as the corrigendum was issued long after the 15-day period for filing objections had expired, depriving intending objectors of their statutory right. The court agreed with this finding, noting that the defective publication invalidated the process.
Conclusion:
The petition was dismissed, and the order of remand by the Appellate Tribunal was maintained, except for the modification that the petitioners need not make formal applications for route modification as previously directed by the Tribunal. The court emphasized the importance of following statutory procedures and the legal effect of notifications.
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1985 (9) TMI 347
Issues Involved:
1. Constitutional validity of the Election Symbols (Reservation and Allotment) Order, 1968.
2. Power of the Election Commission to issue the Symbols Order.
3. Impact of the Symbols Order on the emergence of political parties and alleged malpractices.
Summary:
1. Constitutional Validity of the Symbols Order:
The petitioner challenged the constitutional validity of the Election Symbols (Reservation and Allotment) Order, 1968 (Symbols Order) issued by the Election Commission (Commission) u/s Article 32 of the Constitution. The principal contention was that the Symbols Order, being legislative in character, could not have been issued by the Commission as it is not entrusted by law with the power to issue such an order.
2. Power of the Election Commission to Issue the Symbols Order:
The Court examined the relevant provisions of law, including Articles 324, 327, and 328 of the Constitution, and the Representation of the People Act, 1951 (the Act). It was noted that Article 324 vests the superintendence, direction, and control of elections in the Commission. The Court held that the Commission is empowered to issue the Symbols Order under Article 324 of the Constitution, read with rules 5 and 10 of the Conduct of Elections Rules, 1961. The Court cited previous judgments, including *Sadiq Ali v. Election Commission of India* and *All Party Hill Leaders' Conference, Shillong v. Captain M.A. Sangma*, which upheld the Commission's power to issue the Symbols Order.
3. Impact of the Symbols Order on the Emergence of Political Parties and Alleged Malpractices:
The petitioner argued that the emergence of numerous political parties and the resultant malpractices were due to the provisions of the Symbols Order. The Court dismissed this contention, stating that the existence of political parties is implicit in the democratic form of government adopted by the country. The Court emphasized that political parties are necessary for the functioning of a Westminster-type democracy. The Court also noted that the Tenth Schedule to the Constitution, added by the Constitution (Fifty-Second Amendment) Act, 1985, acknowledges the existence of political parties.
The Court concluded that the Symbols Order does not suffer from a lack of authority on the part of the Commission and dismissed the petition, stating that the alleged evils and malpractices are not due to the Symbols Order but can be addressed by appealing to the conscience of the nation.
Conclusion:
The petition challenging the constitutional validity of the Election Symbols (Reservation and Allotment) Order, 1968, was dismissed. The Supreme Court upheld the power of the Election Commission to issue the Symbols Order and found no merit in the contention that the Order was responsible for the emergence of political parties and alleged malpractices.
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1985 (9) TMI 346
Issues Involved:1. Whether the Gujarat Housing Board is a necessary and proper party to be added in the suit. 2. Interpretation of conflicting decisions of the Supreme Court regarding the status of the acquiring body as an interested party. Summary:Issue 1: Necessary and Proper PartyThe Gujarat Housing Board filed a Civil Revision Application against the order of the Civil Judge (S.D.), Bhavnagar, which rejected their application to be added as a party-defendant in a suit challenging notifications u/s 4 and 6 of the Land Acquisition Act. The Board argued that it is a body corporate involved in constructing residential buildings for weaker sections and that the land in question was acquired for its benefit. The Civil Judge, referencing Mahuva Municipality v. Mehra Kiritkumar Umedchand, held that the acquiring body is not a necessary or proper party and rejected the application. Issue 2: Conflicting Supreme Court DecisionsThe matter was referred to a larger Bench due to conflicting views in Mahuva Municipality v. Mehta Kiritkumar Umedchand and Municipal Corporation of the City of Ahmedabad v. Chandulal Shamaldas Patel, which held that the acquiring body is not a necessary party, and Himalaya Tiles and Marble (P) Ltd. v. Francis Victor Coutinho, which held that the acquiring body is a necessary party. The larger Bench, after considering various decisions and the provisions of the Land Acquisition Act, concluded that the acquiring body is indeed an interested party. The Bench highlighted the inclusive definition of "person interested" u/s 3(b) of the Land Acquisition Act and emphasized the acquiring body's stake in the compensation and the outcome of the litigation. The Bench noted that when there are conflicting decisions of the Supreme Court by co-equal Benches, the later decision should prevail. Therefore, the decision in Himalaya Tiles and Marble (P) Ltd. v. Francis Victor Coutinho was followed, establishing that the Gujarat Housing Board is an interested party whose presence is necessary to effectually and completely decide the issues in the suit. Conclusion:The reference was answered by declaring that the person for whose benefit the land is acquired is an interested party and has the right to be added as a party-defendant. The Civil Revision Application was allowed, setting aside the trial Judge's order and granting the Gujarat Housing Board's application to be added as a party-defendant in the suit.
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1985 (9) TMI 345
Issues involved: Appeal challenging the legality of the order of the Foreign Exchange Regulation Appellate Board, failure to deal with appellant's applications to summon witnesses for cross-examination, misapplication of mind resulting in miscarriage of justice.
Issue 1: Challenge to the order of the Foreign Exchange Regulation Appellate Board
The appeal was made under Section 54 of the Foreign Exchange Regulation Act, 1973, contesting the order of the Appellate Board upholding the Director of Enforcement's finding of contravention of Section 5(1)(aa) and Section 5(1)(c) of the Foreign Exchange Regulation Act, 1947. The appeal was based on the failure of the authorities to address the appellant's applications to summon witnesses for cross-examination during the appeal process.
Issue 2: Failure to deal with applications to summon witnesses
The appellant had applied to summon witnesses for cross-examination, including individuals from whom compensatory amounts were alleged to have been received. Despite the appellant's repeated requests, the authorities did not address these applications properly. The failure to summon these witnesses for cross-examination was deemed a misapplication of mind, leading to a miscarriage of justice.
Conclusion:
The High Court allowed the appeal, setting aside the impugned order and remanding the case to the Appellate Board for a fresh decision in accordance with the law. The court directed that the application to summon witnesses be decided after giving the parties an opportunity to be heard. The record of the Appellate Board was to be returned promptly.
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1985 (9) TMI 344
Issues Involved:
1. Validity of the Municipal Octroi Rules and Bye-laws, 1965 due to lack of exemption from the Saurashtra Terminal Tax and Octroi Ordinance No. 47 of 1949.
2. Effect of the repeal of the Bombay District Municipal Act, 1901 by the Gujarat Municipalities Act, 1963 on the Municipal Octroi Rules and Bye-laws, 1965.
3. Validity of the corrigendum issued by the Gujarat Government on 10.3.1965.
Detailed Analysis:
Issue 1: Validity of the Municipal Octroi Rules and Bye-laws, 1965 due to lack of exemption from the Saurashtra Terminal Tax and Octroi Ordinance No. 47 of 1949
The appellant contended that since the exemption from the operation of the Octroi Ordinance No. 47 of 1949 was not granted by the State Government, the Municipal Octroi Rules and Bye-laws, 1965 could not come into force, rendering the levy at the enhanced rate illegal. The Court rejected this contention, stating that the principle of implied repeal applies. The Court noted that both the Ordinance and the Municipal Rules dealt with the same subject matter-levy and collection of octroi duty. When two pieces of legislation are so inconsistent that they cannot operate simultaneously, the later enactment impliedly repeals the former. The Court emphasized that the Ordinance was a stop-gap measure intended to cease operation once municipalities enacted their own rules. Therefore, the Municipal Rules and Bye-laws, 1965, validly made and brought into force, impliedly repealed the earlier Government Rules under the Ordinance.
Issue 2: Effect of the repeal of the Bombay District Municipal Act, 1901 by the Gujarat Municipalities Act, 1963 on the Municipal Octroi Rules and Bye-laws, 1965
The appellant argued that since the Bombay Act was repealed by the Gujarat Act with effect from 1.1.1965, and the Octroi Rules and Bye-laws were not in force immediately before this date, they were not saved under the Gujarat Act. The Court rejected this contention, explaining that the Divisional Commissioner's order sanctioning the Rules and Bye-laws, dated 22.4.1964, was saved under clause (vi) of sub-s. (2) of s. 279 of the Gujarat Act, which preserved any order in force immediately before the commencement of the Gujarat Act. The Court further clarified that the order of sanction and the Rules and Bye-laws sanctioned thereby are part and parcel of a single instrument, thus saved in their entirety. Additionally, the Court referenced s. 7(b) of the Bombay General Clauses Act, 1904, which preserves "anything duly done" under the repealed enactment, encompassing the Rules and Bye-laws.
Issue 3: Validity of the corrigendum issued by the Gujarat Government on 10.3.1965
The appellant contended that the corrigendum issued by the Gujarat Government on 10.3.1965 was not merely a correction of typographical errors but amounted to a modification of the Rules and Bye-laws without following the required procedure. The Court found no merit in this contention, noting that the corrigendum was issued to rectify typographical errors and inadvertent omissions in the typed copies of the Rules and Bye-laws forwarded to the Divisional Commissioner. The High Court had also rejected this contention, holding that even if the corrigendum amounted to a modification, it was within the powers of the Government. Therefore, the Court dismissed this contention.
Conclusion:
The Supreme Court dismissed the appeal, rejecting all three contentions raised by the appellant. The Municipal Octroi Rules and Bye-laws, 1965 were held to be valid and enforceable, with the enhanced levy of octroi duty upheld. The Court found no substance in the arguments regarding the lack of exemption from the Ordinance, the effect of the repeal of the Bombay Act, and the validity of the corrigendum. The appeal was dismissed with no order as to costs.
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1985 (9) TMI 343
Issues involved: Challenge against the detention order u/s 3(2) of the National Security Act, 1980, based on grounds of detention and legality of the order.
Summary:
1. The petitioner challenged the detention order u/s 3(2) of the National Security Act, 1980, issued while the petitioner was already in jail as an under trial prisoner. The grounds of detention were served, and despite a representation made by the petitioner, the detention was confirmed by the State Government, leading to the filing of a writ petition.
2. The detaining authority justified the order, noting a previous detention that was quashed by the High Court. Five grounds were cited to support the detention, including incidents of dacoity and involvement in criminal activities, leading to the current detention order.
3. The grounds of detention included specific incidents of dacoity and criminal activities, along with the detenu's association with a known gang. However, some incidents were deemed stale and not relevant for the 1984 detention order, while another incident in 1983 resulted in acquittal after trial, making it an invalid ground for detention.
4. The order of detention was primarily based on the apprehension that the detenu, if released on bail, would resume criminal activities, which the court found insufficient to justify preventive detention under the National Security Act. The court agreed with the petitioner's counsel that the order was unsustainable and contrary to established principles of preventive detention, leading to the quashing of the detention order.
5. The writ petition was allowed, directing the immediate release of the petitioner unless held in lawful detention for other reasons.
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1985 (9) TMI 342
Issues:
Classification of Varnished Fibre Glass Cloth and Varnished Sleevings under Central Excise Tariff.
Analysis:
1. The case involved a dispute over the classification of Varnished Fibre Glass Cloth and Varnished Sleevings under the Central Excise Tariff. The Assistant Collector initially classified the products under Tariff Item 22B and Tariff Item 68, respectively. The Appellate Collector later classified both products under Tariff Item 68. The Central Government proposed to revise the classification back to Tariff Item 22B, leading to a Show Cause Notice to the respondents.
2. The respondents argued that the Show Cause Notice was time-barred, as it was issued after six months from the date of the order-in-appeal. However, the Tribunal held that the one-year limitation period applied for review notices related to classification disputes, not the six-month period for demands for payment of duty.
3. The Central Government, in the Show Cause Notice, referenced additional test reports conducted after the Appellate Collector's order. The Tribunal ruled that for initiating review proceedings, the government should consider only the records available at the time of the original order, not new materials. The absence of disclosure of the subsequent report to the respondents rendered the notice invalid.
4. The Tribunal examined the classification criteria for Varnished Sleevings and Varnished Fibre Glass Cloth. Varnished Sleevings, being tubular and not traditional fabrics, did not fall under Tariff Item 22B. The respondents argued for classification under Tariff Item 22F for Varnished Fibre Glass Cloth, emphasizing the predominance of mineral fibres. However, the government contended that the fibre content was less than 50%, not meeting the requirements of Tariff Item 22F(4).
5. The Tribunal referenced a Gujarat High Court decision emphasizing that once mineral fibres predominate, Tariff Item 22F should apply over other textile fabric entries. Following this precedent, the Tribunal concluded that the Varnished Textile Fabrics did not qualify under Tariff Item 22F and should be classified under Tariff Item 68.
6. Ultimately, the Tribunal upheld the Appellate Collector's classification decision, rejecting the Review Show Cause Notice. The Varnished Fibre Glass Cloth and Varnished Sleevings were deemed to fall under Tariff Item 68 of the Central Excise Tariff.
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1985 (9) TMI 341
Issues:
1. Disallowance of credit by the Assistant Collector of Central Excise.
2. Applicability of Section 11A of the Central Excises and Salt Act, 1944.
3. Interpretation of Notification No. 201/79 regarding recouping of credits.
Analysis:
The judgment deals with the appeal against the order of the Collector of Central Excise (Appeals) disallowing a credit taken by the appellant in the R.G. 23 - Part II Register. The credit was disallowed by the Assistant Collector of Central Excise as the appellant failed to follow the procedures outlined in Notification No. 201/79. The appellant had taken the credit after Shriram Rayons, the supplier, paid duty on the goods received by the appellant. The Assistant Collector observed that the necessary procedures, such as giving intimation to the Department and verifying the goods, were not followed due to the absence of an effective levy of excise duty on tyre cord fabrics at that time.
The appellant cited a decision of the West Regional Bench of the Tribunal in a similar case, but the basis of the decision was not elaborated. The Tribunal, consisting of Members C.T.A. Pillai and S. Kalyanam, analyzed the applicability of Section 11A of the Central Excises and Salt Act, 1944. They noted that Section 11A pertains to duty of excise that has not been levied, paid, short levied, short paid, or erroneously refunded. In this case, the issue was the recoupment of credits taken wrongly, not a duty that was not levied or paid. The Tribunal also compared the provisions of Rule 56A of the Central Excise Rules, which specify a time limit for recouping credits allowed wrongly, unlike Notification No. 201/79.
The Tribunal concluded that Section 11A did not seem to apply to the situation at hand, as the notification provided for recouping credits taken by a manufacturer wrongly without specifying a time limit. Despite a previous decision by the West Regional Bench suggesting otherwise, the Tribunal directed the papers to be placed before the President to consider forming a larger Bench to hear the appeal, indicating a divergence in interpretation within the Tribunal.
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