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RENAISSANCE HOTEL HOLDINGS INC Vs. B. VIJAYA SAI AND OTHERS | Court observed that the grant of injunction becomes necessary if it prima facie appears that the adoption of the mark was itself dishonest. However, the said judgment cannot be used as a ratio for the proposition that, if the plaintiff fails to prove that the defendants use was dishonest, an injunction cannot be granted. On the contrary, the High Court has failed to take into consideration the observations made in the very same paragraph to the effect that in cases of infringement, either of a trade mark or copyright, normally an injunction must follow. 66. Insofar as the reliance placed by the learned counsel for the respondents--defendants on the judgment of this Court in the case of Khoday Distilleries Limited (supra) is concerned, the said case arose out of an application filed by the applicants on 21st April 1986 with regard to rectification of the trade mark. In the said case, the manufacture of the product was started by the company in May 1968. The said company filed an application for registration of its mark before the competent authority. The manufacturer was informed that its application was accepted and it was allowed to proceed with the advertisement and the trade mark was subsequently registered inasmuch as there was only one opposition, and as such, the trade mark came to be registered. The applicants had not filed any opposition application. They came to know of the manufacturers mark on or about 20th September 1974. They filed an application for rectification of the said trade mark on 21st April 1986. The question of acquiescence was considered in the said case since it was noticed that though the product was being manufactured since 1968 and though the applicants who sought rectification application came to know about the same on or around 20th September 1974, the rectification application came to be filed only in the year 1986. The present case arises out of an action for infringement of a trade mark. As such, ratio in Khoday Distilleries Limited (supra), would not be applicable to the present case. It is further to be noted that this Court in paragraph (84) of the said judgment has specifically observed that the said Act had no application in the said case, which reads thus: 84. So far as the applicability of the 1999 Act is concerned, having regard to the provisions of Sections 20(2) and 26(2), we are of the opinion that the 1999 Act will have no application. 67. In that view of the matter, reliance placed by the respondents--defendants on the judgment of this Court in the case of Khoday Distilleries Limited (supra) is misplaced. 68. Insofar as reliance placed on the judgment of this Court in the case of Nandhini Deluxe (supra) is concerned, in the said case, the marks for consideration were Nandhini and Nandini. It will be relevant to refer to the following observations of this Court in the said case: 30. Applying the aforesaid principles to the instant case, when we find that not only visual appearance of the two marks is different, they even relate to different products. Further, the manner in which they are traded by the appellant and the respondent respectively, highlighted above, it is difficult to imagine that an average man of ordinary intelligence would associate the goods of the appellant as that of the respondent. 69. It could thus be seen that in the facts of the said case, not only the visual appearance of the two marks were different, but they even related to different products. As such, the said judgment would also be of no assistance to the case of the respondents--defendants in the present case. 70. Insofar as the reliance placed on the judgment of this Court in the case of Neon Laboratories Limited (supra) is concerned, the said case arose out of the proceedings for grant of temporary injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908. The trial court had granted an injunction in favour of the plaintiff finding that the plaintiff had, with prima facie material, established that it was using their trade mark well before the attempted use of an identical or closely similar trade mark by the appellant-defendant. The said injunction was affirmed by the Single Judge of the High Court. Confirming the concurrent orders, this Court held that the plaintiff would be entitled to a temporary injunction in light of the first in the market test. As such, the said judgment would also not be applicable to the facts of the present case. 71. We are, therefore, of the considered view that the High Court fell in error on various counts. The present case stood squarely covered by the provisions of Section 29(2)(c) read with sub--section (3) of Section 29 of the said Act. The present case also stood covered under sub--sections (5) and (9) of Section 29 of the said Act. The High Court has erred in taking into consideration clause (c) of sub--section (4) of Section 29 of the said Act in isolation without noticing other parts of the said sub--section (4) of Section 29 of the said Act and the import thereof. The High Court has failed to take into consideration that in order to avail the benefit of Section 30 of the said Act, apart from establishing that the use of the impugned trade mark was not such as to take unfair advantage of or is detrimental to the distinctive character or repute of the trade mark, it is also necessary to establish that such a use is in accordance with the honest practices in industrial or commercial matters. As such, we have no hesitation to hold that the High Court was not justified in interfering with the well-reasoned order of the trial court. 72. Therefore, we are of the considered view that the High Court fell in error by interfering with the well-reasoned order of the trial court and so, the present appeal deserves to be allowed. | 1[ds]43. The legislative scheme is clear that when the mark of the defendant is identical with the registered trade mark of the plaintiff and the goods or services covered are similar to the ones covered by such registered trade mark, it may be necessary to prove that it is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark. Similarly, when the trade mark of the plaintiff is similar to the registered trade mark of the defendant and the goods or services covered by such registered trade mark are identical or similar to the goods or services covered by such registered trade mark, it may again be necessary to establish that it is likely to cause confusion on the part of the public. However, when the trade mark of the defendant is identical with the registered trade mark of the plaintiff and that the goods or services of the defendant are identical with the goods or services covered by registered trade mark, the Court shall presume that it is likely to cause confusion on the part of the public.44. Having considered the legislative scheme as has been elaborately provided in the said Act, it will be apposite to refer to the observations of this Court, while considering Section 21 of The Trade Marks Act, 1940 in the case of Kaviraj Pandit Durga Dutt Sharma (supra):28. The other ground of objection that the findings are inconsistent really proceeds on an error in appreciating the basic differences between the causes of action and right to relief in suits for passing off and for infringement of a registered trade mark and in equating the essentials of a passing off action with those in respect of an action complaining of an infringement of a registered trade mark. We have already pointed out that the suit by the respondent complained both of an invasion of a statutory right under Section 21 in respect of a registered trade mark and also of a passing off by the use of the same mark. The finding in favour of the appellant to which the learned counsel drew our attention was based upon dissimilarity of the packing in which the goods of the two parties were vended, the difference in the physical appearance of the two packets by reason of the variation in the colour and other features and their general get-up together with the circumstance that the name and address of the manufactory of the appellant was prominently displayed on his packets and these features were all set out for negativing the respondents claim that the appellant had passed off his goods as those of the respondent. These matters which are of the essence of the cause of action for relief on the ground of passing off play but a limited role in an action for infringement of a registered trade mark by the registered proprietor who has a statutory right to that mark and who has a statutory remedy for the event of the use by another of that mark or a colourable imitation thereof. While an action for passing off is a Common Law remedy being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another, that is not the gist of an action for infringement. The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive right to the use of the trade mark in relation to those goods (Vide Section 21 of the Act). The use by the defendant of the trade mark of the plaintiff is not essential in an action for passing off, but is the sine qua non in the case of an action for infringement. No doubt, where the evidence in respect of passing off consists merely of the colourable use of a registered trade mark, the essential features of both the actions might coincide in the sense that what would be a colourable imitation of a trade mark in a passing off action would also be such in an action for infringement of the same trade mark. But there the correspondence between the two ceases. In an action for infringement, the plaintiff must, no doubt, make out that the use of the defendants mark is likely to deceive, but where the similarity between the plaintiffs and the defendants mark is so close either visually, phonetically or otherwise and the court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiffs rights are violated. Expressed in another way, if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get-up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial; whereas in the case of passing off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff.45. It could thus be seen that this Court has pointed out the distinction between the causes of action and right to relief in suits for passing off and for infringement of registered trade mark. It has been held that the essentials of a passing off action with those in respect of an action complaining of an infringement of a registered trade mark, cannot be equated. It has been held that though an action for passing off is a Common Law remedy being an action for deceit, that is, a passing off by a person of his own goods as those of another; the action for infringement is a statutory right conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive rights to the use of the trade mark in relation to those goods. The use by the defendant of the trade mark of the plaintiff is a sine qua non in the case of an action for infringement. It has further been held that if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get-up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark, would be immaterial in a case of infringement of the trade mark, whereas in the case of a passing off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff.46. Again, while considering the provisions of Section 21 of the 1940 Act, this Court in the case of Ruston & Hornsby Limited (supra), observed thus:4. It very often happens that although the defendant is not using the trade mark of the plaintiff, the get up of the defendants goods may be so much like the plaintiffs that a clear case of passing off would be proved. It is on the contrary conceivable that although the defendant may be using the plaintiffs mark the get up of the defendants goods may be so different from the get up of the plaintiffs goods and the prices also may by so different that there would be no probability of deception of the public. Nevertheless, in an action on the trade mark, that is to say, in an infringement action, an injunction would issue as soon as it is proved that the defendant is improperly using the plaintiffs mark.5. The action for infringement is a statutory right. It is dependent upon the validity of the registration and subject to other restrictions laid down in Sections 30, 34 and 35 of the Act. On the other hand the gist of a passing off action is that A is not entitled to represent his goods as the goods of B but it is not necessary for B to prove that A did this knowingly or with any intent to deceive. It is enough that the get-up of Bs goods has become distinctive of them and that there is a probability of confusion between them and the goods of A. No case of actual deception nor any actual damage need be proved. At common law the action was not maintainable unless there had been fraud on As part. In equity, however, Lord Cottenham, L.C., in Millington v. Fox [3 My & Cr 338] held that it was immaterial whether the defendant had been fraudulent or not in using the plaintiffs trade mark and granted an injunction accordingly. The common law courts, however, adhered to their view that fraud was necessary until the Judicature Acts, by fusing law and equity, gave the equitable rule the victory over the common law rule.6. The two actions, however, are closely similar in some respects. As was observed by the Master of the Rolls in Saville Perfumery Ltd. v. June Perfect Ltd. [58 RPC 147 at 161] :The statute law relating to infringement of trade marks is based on the same fundamental idea as the law relating to passing-off. But it differs from that law in two particulars, namely (1) it is concerned only with one method of passing-off, namely, the use of a trade mark, and (2) the statutory protection is absolute in the sense that once a mark is shown to offend, the user of it cannot escape by showing that by something outside the actual mark itself he has distinguished his goods from those of the registered proprietor. Accordingly, in considering the question of infringement the Courts have held, and it is now expressly provided by the Trade Marks Act, 1938, Section 4, that infringement takes place not merely by exact imitation but by the use of a mark so nearly resembling the registered mark as to be likely to deceive.47. It could thus be seen that this Court again reiterated that the question to be asked in an infringement action is as to whether the defendant is using a mark which is same as, or which is a colourable imitation of the plaintiffs registered trade mark. It has further been held that though the get up of the defendants goods may be so different from the plaintiffs goods and the prices may also be so different that there would be no probability of deception of the public, nevertheless even in such cases, i.e., in an infringement action, an injunction would be issued as soon as it is proved that the defendant is improperly using the plaintiffs mark. It has been reiterated that no case of actual deception nor any actual damage needs to be proved in such cases. This Court has further held that though two actions are closely similar in some respects, in an action for infringement, where the defendants trade mark is identical with the plaintiffs trade mark, the Court will not enquire whether the infringement is such as is likely to deceive or cause confusion.48. In the present case, both the trial court and the High Court have come to the conclusion that the trade mark of the respondents--defendants is identical with that of the appellant--plaintiff and further that the services rendered by the respondents--defendants are under the same class, i.e., Class 16 and Class 42, in respect of which the appellant- plaintiffs trade mark RENAISSANCE was registered. In such circumstances, the trial court had rightly held that the goods of the appellant--plaintiff would be covered by Section 29(2)(c) read with Section 29(3) of the said Act.49. However, the High Court, while reversing the decree of injunction granted by the trial court, has held that the appellant--plaintiff had failed to establish that the trade mark has reputation in India and that the respondents--defendants use thereof was honest and further that there was no confusion likely to be created in the minds of the consumers inasmuch as the class of consumers was totally different. It appears that the High Court has relied only on clause (c) of sub--section (4) of Section 29 of the said Act to arrive at such a conclusion.50. We find that the High Court has totally erred in taking into consideration only clause (c) of sub--section (4) of Section 29 of the said Act. It is to be noted that, whereas, the legislature has used the word or after clauses (a) and (b) in sub--section (2) of Section 29 of the said Act, it has used the word and after clauses (a) and (b) in sub--section (4) of Section 29 of the said Act. It could thus be seen that the legislative intent is very clear. Insofar as sub--section (2) of Section 29 of the said Act is concerned, it is sufficient that any of the conditions as provided in clauses (a), (b) or (c) is satisfied.52. The perusal of sub--section (4) of Section 29 of the said Act would reveal that the same deals with an eventuality when the impugned trade mark is identical with or similar to the registered trade mark and is used in relation to goods or services which are not similar to those for which the trade mark is registered. Only in such an eventuality, it will be necessary to establish that the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark. The legislative intent is clear by employing the word and after clauses (a) and (b) in sub--section (4) of Section 29 of the said Act. Unless all the three conditions are satisfied, it will not be open to the proprietor of the registered trade mark to sue for infringement when though the impugned trade mark is identical with the registered trade mark, but is used in relation to goods or services which are not similar to those for which the trade mark is registered. To sum up, while sub--section (2) of Section 29 of the said Act deals with those situations where the trade mark is identical or similar and the goods covered by such a trade mark are identical or similar, sub--section (4) of Section 29 of the said Act deals with situations where though the trade mark is identical, but the goods or services are not similar to those for which the trade mark is registered.53. Undisputedly, the appellant--plaintiffs trade mark RENAISSANCE is registered in relation to goods and services in Class 16 and Class 42 and the mark SAI RENAISSANCE, which is identical or similar to that of the appellant--plaintiffs trade mark, was being used by the respondents--defendants in relation to the goods and services similar to that of the appellant--plaintiffs.54. In these circumstances, we are of the considered view that it was not open for the High Court to have entered into the discussion as to whether the appellant--plaintiffs trade mark had a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark. We find that the High Court has erred in entering into the discussion as to whether the respondents--defendants and the appellant--plaintiff cater to different classes of customers and as to whether there was likely to be confusion in the minds of consumers with regard to the hotel of the respondents--defendants belonging to the same group as of the appellant--plaintiffs. As held by this Court in the case of Ruston & Hornsby Limited (supra), in an action for infringement, once it is found that the defendants trade mark was identical with the plaintiffs registered trade mark, the Court could not have gone into an enquiry whether the infringement is such as is likely to deceive or cause confusion. In an infringement action, an injunction would be issued as soon as it is proved that the defendant is improperly using the trade mark of the plaintiff.55. It is not in dispute that the appellant--plaintiffs trade mark RENAISSANCE is registered under Class 16 and Class 42, which deals with hotels and hotel related services and goods. It is also not in dispute that the mark and the business name SAI RENAISSANCE, which was being used by the respondents--defendants, was also in relation to Class 16 and Class 42. As such, the use of the word RENAISSANCE by the respondents--defendants as a part of their trade name or business concern, would squarely be hit by sub--section (5) of Section 29 of the said Act.56. It is further to be noted that the words RENAISSANCE and SAI RENAISSANCE are phonetically as well as visually similar. As already discussed hereinabove, sub--section (9) of Section 29 of the said Act provides that where the distinctive elements of a registered trade mark consist of or include words, the trade mark may be infringed by the spoken use of those words as well as by their visual representation. As such, the use of the word SAI RENAISSANCE which is phonetically and visually similar to RENAISSANCE, would also be an act of infringement in view of the provisions of sub--section (9) of Section 29 of the said Act.58. The glaring mistake that has been committed by the High Court is the failure to notice the following part of Section 30(1) of the said Act:(a) is in accordance with honest practices in industrial or commercial matters, and59. The perusal of Section 30(1) of the said Act would reveal that for availing the benefit of Section 30 of the said Act, it is required that the twin conditions, i.e., the use of the impugned trade mark being in accordance with the honest practices in industrial or commercial matters, and that such a use is not such as to take unfair advantage of or be detrimental to the distinctive character or repute of the trade mark, are required to be fulfilled. It is again to be noted that in sub--section (1) of Section 30 of the said Act, after clause (a), the word used is and, like the one used in sub--section (4) of Section 29 of the said Act, in contradistinction to the word or used in sub--section (2) of Section 29 of the said Act. The High Court has referred only to the condition stipulated in clause (b) of sub--section (1) of Section 30 of the said Act ignoring the fact that, to get the benefit of sub--section (1) of Section 30 of the said Act, both the conditions had to be fulfilled. Unless it is established that such a use is in accordance with the honest practices in industrial or commercial matters, and is not to take unfair advantage or is not detrimental to the distinctive character or repute of the trade mark, one could not get benefit under Section 30(1) of the said Act. As such, the finding in this regard by the High Court is also erroneous.60. We find that the High Court has failed to take into consideration two important principles of interpretation. The first one being of textual and contextual interpretation. It will be apposite to refer to the guiding principles, succinctly summed up by Chinnappa Reddy, J., in the judgment of this Court in the case of Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and Others (1987) 1 SCC 424 :33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasonsfor it that the Court construed the expression Prize Chit in Srinivasa [(1980) 4 SCC 507 : (1981) 1 SCR 801 : 51 Com Cas 464] and we find no reason to depart from the Courts construction.The legislative scheme as enacted under the said statute elaborately provides for the eventualities in which a proprietor of the registered trade mark can bring an action for infringement of the trade mark and the limits on effect of the registered trade mark. By picking up a part of the provisions in sub--section (4) of Section 29 of the said Act and a part of the provision in sub--section (1) of Section 30 of the said Act and giving it a textual meaning without considering the context in which the said provisions have to be construed, in our view, would not be permissible. We are at pains to say that the High Court fell in error in doing so.62. Another principle that the High Court has failed to notice is that a part of a section cannot be read in isolation. This Court, speaking through A.P. Sen, J., in the case of Balasinor Nagrik Cooperative Bank Ltd. v. Babubhai Shankerlal Pandya and Others (1987) 1 SCC 606, observed thus:4. …..It is an elementary rule that construction of a section is to be made of all parts together. It is not permissible to omit any part of it. For, the principle that the statute must be read as a whole is equally applicable to different parts of the same section…..This principle was reiterated by this Court in the case of Kalawatibai v. Soiryabai and Others (1991) 3 SCC 410 :6. ….. It is well settled that a section has to be read in its entirety as one composite unit without bifurcating it or ignoring any part of it…..63. Ignoring this principle, the High Court has picked up clause (c) of sub--section (4) of Section 29 of the said Act in isolation without even noticing the other provisions contained in the said sub--section (4) of Section 29 of the said Act. Similarly, again while considering the import of sub- section (1) of Section 30 of the said Act, the High Court has only picked up clause (b) of sub--section (1) of Section 30 of the said Act, ignoring the provisions contained in clause (a) of the said sub--section (1) of Section 30 of the said Act.64. That leaves us with the reliance placed by the High Court on the judgment of this Court in the case of Midas Hygiene Industries (P) Limited (supra). The High Court has relied on the following observations of this Court in the aforementioned case:5. The law on the subject is well settled. In cases of infringement either of trade mark or of copyright, normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction in such cases. The grant of injunction also becomes necessary if it prima facie appears that the adoption of the mark was itself dishonest.[emphasis supplied by me]65. The emphasis has been placed by the High Court on the observations of this Court in the case of Midas Hygiene Industries (P) Limited (supra) to the effect that the grant of injunction also becomes necessary if it prima facie appears that the adoption of the mark was itself dishonest. The High Court has relied upon the said observations to reverse the order of injunction on the ground that there is no dishonesty in the respondents--defendants adoption of the mark and therefore, they cannot be said to have infringed the trade mark. In our considered view, the aforesaid observations are made out of context. In the said case, the suit was filed for passing off or for infringement of the copyright. In the said case, the Single Judge of the High Court had granted injunction in favour of the plaintiff from manufacturing, marketing, distributing or selling insecticides, pesticides as well as insect repellent under the name LAXMAN REKHA. The Division Bench had vacated the injunction on the ground that there was delay and laches. This Court found that at least from 1991, the plaintiff was using the mark LAXMAN REKHA and the plaintiff was having a copyright in the marks KRAZY LINES and LAXMAN REKHA with effect from 19th November 1991. It was also found that the respondent worked with the plaintiff prior to launching his business. In the said case, this Court observed that the grant of injunction becomes necessary if it prima facie appears that the adoption of the mark was itself dishonest. However, the said judgment cannot be used as a ratio for the proposition that, if the plaintiff fails to prove that the defendants use was dishonest, an injunction cannot be granted. On the contrary, the High Court has failed to take into consideration the observations made in the very same paragraph to the effect that in cases of infringement, either of a trade mark or copyright, normally an injunction must follow.66. Insofar as the reliance placed by the learned counsel for the respondents--defendants on the judgment of this Court in the case of Khoday Distilleries Limited (supra) is concerned, the said case arose out of an application filed by the applicants on 21st April 1986 with regard to rectification of the trade mark. In the said case, the manufacture of the product was started by the company in May 1968. The said company filed an application for registration of its mark before the competent authority. The manufacturer was informed that its application was accepted and it was allowed to proceed with the advertisement and the trade mark was subsequently registered inasmuch as there was only one opposition, and as such, the trade mark came to be registered. The applicants had not filed any opposition application. They came to know of the manufacturers mark on or about 20th September 1974. They filed an application for rectification of the said trade mark on 21st April 1986. The question of acquiescence was considered in the said case since it was noticed that though the product was being manufactured since 1968 and though the applicants who sought rectification application came to know about the same on or around 20th September 1974, the rectification application came to be filed only in the year 1986. The present case arises out of an action for infringement of a trade mark. As such, ratio in Khoday Distilleries Limited (supra), would not be applicable to the present case. It is further to be noted that this Court in paragraph (84) of the said judgment has specifically observed that the said Act had no application in the said case, which reads thus:84. So far as the applicability of the 1999 Act is concerned, having regard to the provisions of Sections 20(2) and 26(2), we are of the opinion that the 1999 Act will have no application.67. In that view of the matter, reliance placed by the respondents--defendants on the judgment of this Court in the case of Khoday Distilleries Limited (supra) is misplaced.68. Insofar as reliance placed on the judgment of this Court in the case of Nandhini Deluxe (supra) is concerned, in the said case, the marks for consideration were Nandhini and Nandini. It will be relevant to refer to the following observations of this Court in the said case:30. Applying the aforesaid principles to the instant case, when we find that not only visual appearance of the two marks is different, they even relate to different products. Further, the manner in which they are traded by the appellant and the respondent respectively, highlighted above, it is difficult to imagine that an average man of ordinary intelligence would associate the goods of the appellant as that of the respondent.69. It could thus be seen that in the facts of the said case, not only the visual appearance of the two marks were different, but they even related to different products. As such, the said judgment would also be of no assistance to the case of the respondents--defendants in the present case.70. Insofar as the reliance placed on the judgment of this Court in the case of Neon Laboratories Limited (supra) is concerned, the said case arose out of the proceedings for grant of temporary injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908. The trial court had granted an injunction in favour of the plaintiff finding that the plaintiff had, with prima facie material, established that it was using their trade mark well before the attempted use of an identical or closely similar trade mark by the appellant-defendant. The said injunction was affirmed by the Single Judge of the High Court. Confirming the concurrent orders, this Court held that the plaintiff would be entitled to a temporary injunction in light of the first in the market test. As such, the said judgment would also not be applicable to the facts of the present case.71. We are, therefore, of the considered view that the High Court fell in error on various counts. The present case stood squarely covered by the provisions of Section 29(2)(c) read with sub--section (3) of Section 29 of the said Act. The present case also stood covered under sub--sections (5) and (9) of Section 29 of the said Act. The High Court has erred in taking into consideration clause (c) of sub--section (4) of Section 29 of the said Act in isolation without noticing other parts of the said sub--section (4) of Section 29 of the said Act and the import thereof. The High Court has failed to take into consideration that in order to avail the benefit of Section 30 of the said Act, apart from establishing that the use of the impugned trade mark was not such as to take unfair advantage of or is detrimental to the distinctive character or repute of the trade mark, it is also necessary to establish that such a use is in accordance with the honest practices in industrial or commercial matters. As such, we have no hesitation to hold that the High Court was not justified in interfering with the well-reasoned order of the trial court.72. Therefore, we are of the considered view that the High Court fell in error by interfering with the well-reasoned order of the trial court and so, the present appeal deserves to be allowed. | 1 | 14,050 | 5,903 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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Court observed that the grant of injunction becomes necessary if it prima facie appears that the adoption of the mark was itself dishonest. However, the said judgment cannot be used as a ratio for the proposition that, if the plaintiff fails to prove that the defendants use was dishonest, an injunction cannot be granted. On the contrary, the High Court has failed to take into consideration the observations made in the very same paragraph to the effect that in cases of infringement, either of a trade mark or copyright, normally an injunction must follow. 66. Insofar as the reliance placed by the learned counsel for the respondents--defendants on the judgment of this Court in the case of Khoday Distilleries Limited (supra) is concerned, the said case arose out of an application filed by the applicants on 21st April 1986 with regard to rectification of the trade mark. In the said case, the manufacture of the product was started by the company in May 1968. The said company filed an application for registration of its mark before the competent authority. The manufacturer was informed that its application was accepted and it was allowed to proceed with the advertisement and the trade mark was subsequently registered inasmuch as there was only one opposition, and as such, the trade mark came to be registered. The applicants had not filed any opposition application. They came to know of the manufacturers mark on or about 20th September 1974. They filed an application for rectification of the said trade mark on 21st April 1986. The question of acquiescence was considered in the said case since it was noticed that though the product was being manufactured since 1968 and though the applicants who sought rectification application came to know about the same on or around 20th September 1974, the rectification application came to be filed only in the year 1986. The present case arises out of an action for infringement of a trade mark. As such, ratio in Khoday Distilleries Limited (supra), would not be applicable to the present case. It is further to be noted that this Court in paragraph (84) of the said judgment has specifically observed that the said Act had no application in the said case, which reads thus: 84. So far as the applicability of the 1999 Act is concerned, having regard to the provisions of Sections 20(2) and 26(2), we are of the opinion that the 1999 Act will have no application. 67. In that view of the matter, reliance placed by the respondents--defendants on the judgment of this Court in the case of Khoday Distilleries Limited (supra) is misplaced. 68. Insofar as reliance placed on the judgment of this Court in the case of Nandhini Deluxe (supra) is concerned, in the said case, the marks for consideration were Nandhini and Nandini. It will be relevant to refer to the following observations of this Court in the said case: 30. Applying the aforesaid principles to the instant case, when we find that not only visual appearance of the two marks is different, they even relate to different products. Further, the manner in which they are traded by the appellant and the respondent respectively, highlighted above, it is difficult to imagine that an average man of ordinary intelligence would associate the goods of the appellant as that of the respondent. 69. It could thus be seen that in the facts of the said case, not only the visual appearance of the two marks were different, but they even related to different products. As such, the said judgment would also be of no assistance to the case of the respondents--defendants in the present case. 70. Insofar as the reliance placed on the judgment of this Court in the case of Neon Laboratories Limited (supra) is concerned, the said case arose out of the proceedings for grant of temporary injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908. The trial court had granted an injunction in favour of the plaintiff finding that the plaintiff had, with prima facie material, established that it was using their trade mark well before the attempted use of an identical or closely similar trade mark by the appellant-defendant. The said injunction was affirmed by the Single Judge of the High Court. Confirming the concurrent orders, this Court held that the plaintiff would be entitled to a temporary injunction in light of the first in the market test. As such, the said judgment would also not be applicable to the facts of the present case. 71. We are, therefore, of the considered view that the High Court fell in error on various counts. The present case stood squarely covered by the provisions of Section 29(2)(c) read with sub--section (3) of Section 29 of the said Act. The present case also stood covered under sub--sections (5) and (9) of Section 29 of the said Act. The High Court has erred in taking into consideration clause (c) of sub--section (4) of Section 29 of the said Act in isolation without noticing other parts of the said sub--section (4) of Section 29 of the said Act and the import thereof. The High Court has failed to take into consideration that in order to avail the benefit of Section 30 of the said Act, apart from establishing that the use of the impugned trade mark was not such as to take unfair advantage of or is detrimental to the distinctive character or repute of the trade mark, it is also necessary to establish that such a use is in accordance with the honest practices in industrial or commercial matters. As such, we have no hesitation to hold that the High Court was not justified in interfering with the well-reasoned order of the trial court. 72. Therefore, we are of the considered view that the High Court fell in error by interfering with the well-reasoned order of the trial court and so, the present appeal deserves to be allowed.
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1
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to launching his business. In the said case, this Court observed that the grant of injunction becomes necessary if it prima facie appears that the adoption of the mark was itself dishonest. However, the said judgment cannot be used as a ratio for the proposition that, if the plaintiff fails to prove that the defendants use was dishonest, an injunction cannot be granted. On the contrary, the High Court has failed to take into consideration the observations made in the very same paragraph to the effect that in cases of infringement, either of a trade mark or copyright, normally an injunction must follow.66. Insofar as the reliance placed by the learned counsel for the respondents--defendants on the judgment of this Court in the case of Khoday Distilleries Limited (supra) is concerned, the said case arose out of an application filed by the applicants on 21st April 1986 with regard to rectification of the trade mark. In the said case, the manufacture of the product was started by the company in May 1968. The said company filed an application for registration of its mark before the competent authority. The manufacturer was informed that its application was accepted and it was allowed to proceed with the advertisement and the trade mark was subsequently registered inasmuch as there was only one opposition, and as such, the trade mark came to be registered. The applicants had not filed any opposition application. They came to know of the manufacturers mark on or about 20th September 1974. They filed an application for rectification of the said trade mark on 21st April 1986. The question of acquiescence was considered in the said case since it was noticed that though the product was being manufactured since 1968 and though the applicants who sought rectification application came to know about the same on or around 20th September 1974, the rectification application came to be filed only in the year 1986. The present case arises out of an action for infringement of a trade mark. As such, ratio in Khoday Distilleries Limited (supra), would not be applicable to the present case. It is further to be noted that this Court in paragraph (84) of the said judgment has specifically observed that the said Act had no application in the said case, which reads thus:84. So far as the applicability of the 1999 Act is concerned, having regard to the provisions of Sections 20(2) and 26(2), we are of the opinion that the 1999 Act will have no application.67. In that view of the matter, reliance placed by the respondents--defendants on the judgment of this Court in the case of Khoday Distilleries Limited (supra) is misplaced.68. Insofar as reliance placed on the judgment of this Court in the case of Nandhini Deluxe (supra) is concerned, in the said case, the marks for consideration were Nandhini and Nandini. It will be relevant to refer to the following observations of this Court in the said case:30. Applying the aforesaid principles to the instant case, when we find that not only visual appearance of the two marks is different, they even relate to different products. Further, the manner in which they are traded by the appellant and the respondent respectively, highlighted above, it is difficult to imagine that an average man of ordinary intelligence would associate the goods of the appellant as that of the respondent.69. It could thus be seen that in the facts of the said case, not only the visual appearance of the two marks were different, but they even related to different products. As such, the said judgment would also be of no assistance to the case of the respondents--defendants in the present case.70. Insofar as the reliance placed on the judgment of this Court in the case of Neon Laboratories Limited (supra) is concerned, the said case arose out of the proceedings for grant of temporary injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908. The trial court had granted an injunction in favour of the plaintiff finding that the plaintiff had, with prima facie material, established that it was using their trade mark well before the attempted use of an identical or closely similar trade mark by the appellant-defendant. The said injunction was affirmed by the Single Judge of the High Court. Confirming the concurrent orders, this Court held that the plaintiff would be entitled to a temporary injunction in light of the first in the market test. As such, the said judgment would also not be applicable to the facts of the present case.71. We are, therefore, of the considered view that the High Court fell in error on various counts. The present case stood squarely covered by the provisions of Section 29(2)(c) read with sub--section (3) of Section 29 of the said Act. The present case also stood covered under sub--sections (5) and (9) of Section 29 of the said Act. The High Court has erred in taking into consideration clause (c) of sub--section (4) of Section 29 of the said Act in isolation without noticing other parts of the said sub--section (4) of Section 29 of the said Act and the import thereof. The High Court has failed to take into consideration that in order to avail the benefit of Section 30 of the said Act, apart from establishing that the use of the impugned trade mark was not such as to take unfair advantage of or is detrimental to the distinctive character or repute of the trade mark, it is also necessary to establish that such a use is in accordance with the honest practices in industrial or commercial matters. As such, we have no hesitation to hold that the High Court was not justified in interfering with the well-reasoned order of the trial court.72. Therefore, we are of the considered view that the High Court fell in error by interfering with the well-reasoned order of the trial court and so, the present appeal deserves to be allowed.
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Abdul Waheed Vs. State of Maharashtra | S.M. FAZAL ALI, J.In this appeal by special leave, the appellant has been convicted under S. 302 and sentenced to imprisonment for life and fine of Rs. 100/-. He has also been convicted under S. 324 and sentenced to one years R.I. and fine of Rs. 100/-. We have gone through the judgment of the Sessions Judge and we find that it has given cogent reasons for believing the prosecution case and rejecting the defence version. The High Court dismissed the appeal summarily but as some of the accused had injuries on their persons, prima facie, the matter required further investigation and that is why special leave appears to have been granted by this Court. As this appeal is more than six years old, we have instead of remanding the case examined the evidence ourselves and after examining the same we find ourselves in complete agreement with the view taken by the learned Sessions Judge.2. Mr. Hardev Singh, vehemently, argued that in view of the serious injuries present on the accused persons particularly accused No. 1, the Sessions Judge should have accepted the defence version. The genesis of the defence case was that there was a grazing dispute in the field of the appellant which led the deceased to assault the appellant and in the course of the mutual scuffle, the deceased was given a knife blow which resulted in his death. Although F.I.R. was lodged by the defence, there was nothing to show that the investigating officer was taken to the field to find out whether any grazing incident had taken place or not. Furthermore, P.Ws. 1, 3, 4 and 5 have proved the case against the accused as eye-witnesses and out of them P.W. 1, Shekh Chand, is an absolutely independent witness, hence there is no reason to distrust his evidence. It may be, as the Sessions Judge has pointed out, that after the appellant caused the murder of the deceased, there may have been mutual scuffle by way of reprisal and some of the accused were assaulted in that incident. That is why the appellant lodged his F.I.R. more than an hour after the F.I.R. lodged by the complainant. Having gone through the medical evidence and the defence evidence, we are not satisfied that the defence came out in this case with the true version.3. It was then contended by Mr. Hardev Singh that the case against the appellant was false under S. 304 and not under S. 302. We are however unable to agree with this contention as the nature of the injury inflicted by the appellant on the deceased by a weapon like knife which was as much as 3" deep manifestly and clearly intended to kill the deceased, and that too on some very paltry matter, that is to say, the refusal of the deceased Papa Khan to supply goods to the appellant on credit. In the circumstances, therefore, we think that the Sessions Judge was right in convicting the appellant under S. 302 I.P.C. | 0[ds]3. It was then contended by Mr. Hardev Singh that the case against the appellant was false under S. 304 and not under S. 302. We are however unable to agree with this contention as the nature of the injury inflicted by the appellant on the deceased by a weapon like knife which was as much as 3" deep manifestly and clearly intended to kill the deceased, and that too on some very paltry matter, that is to say, the refusal of the deceased Papa Khan to supply goods to the appellant on credit. In the circumstances, therefore, we think that the Sessions Judge was right in convicting the appellant under S. 302 I.P.C. | 0 | 551 | 128 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
S.M. FAZAL ALI, J.In this appeal by special leave, the appellant has been convicted under S. 302 and sentenced to imprisonment for life and fine of Rs. 100/-. He has also been convicted under S. 324 and sentenced to one years R.I. and fine of Rs. 100/-. We have gone through the judgment of the Sessions Judge and we find that it has given cogent reasons for believing the prosecution case and rejecting the defence version. The High Court dismissed the appeal summarily but as some of the accused had injuries on their persons, prima facie, the matter required further investigation and that is why special leave appears to have been granted by this Court. As this appeal is more than six years old, we have instead of remanding the case examined the evidence ourselves and after examining the same we find ourselves in complete agreement with the view taken by the learned Sessions Judge.2. Mr. Hardev Singh, vehemently, argued that in view of the serious injuries present on the accused persons particularly accused No. 1, the Sessions Judge should have accepted the defence version. The genesis of the defence case was that there was a grazing dispute in the field of the appellant which led the deceased to assault the appellant and in the course of the mutual scuffle, the deceased was given a knife blow which resulted in his death. Although F.I.R. was lodged by the defence, there was nothing to show that the investigating officer was taken to the field to find out whether any grazing incident had taken place or not. Furthermore, P.Ws. 1, 3, 4 and 5 have proved the case against the accused as eye-witnesses and out of them P.W. 1, Shekh Chand, is an absolutely independent witness, hence there is no reason to distrust his evidence. It may be, as the Sessions Judge has pointed out, that after the appellant caused the murder of the deceased, there may have been mutual scuffle by way of reprisal and some of the accused were assaulted in that incident. That is why the appellant lodged his F.I.R. more than an hour after the F.I.R. lodged by the complainant. Having gone through the medical evidence and the defence evidence, we are not satisfied that the defence came out in this case with the true version.3. It was then contended by Mr. Hardev Singh that the case against the appellant was false under S. 304 and not under S. 302. We are however unable to agree with this contention as the nature of the injury inflicted by the appellant on the deceased by a weapon like knife which was as much as 3" deep manifestly and clearly intended to kill the deceased, and that too on some very paltry matter, that is to say, the refusal of the deceased Papa Khan to supply goods to the appellant on credit. In the circumstances, therefore, we think that the Sessions Judge was right in convicting the appellant under S. 302 I.P.C.
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0
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3. It was then contended by Mr. Hardev Singh that the case against the appellant was false under S. 304 and not under S. 302. We are however unable to agree with this contention as the nature of the injury inflicted by the appellant on the deceased by a weapon like knife which was as much as 3" deep manifestly and clearly intended to kill the deceased, and that too on some very paltry matter, that is to say, the refusal of the deceased Papa Khan to supply goods to the appellant on credit. In the circumstances, therefore, we think that the Sessions Judge was right in convicting the appellant under S. 302 I.P.C.
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The Hindustan Forest Company Vs. Lal Chand And Others | A.C.J., transactions on each side creating independent obligations on the other and not merely transactions which create obligations on one side, those on the other being merely complete or partial discharges of such obligations.It is further clear that goods as well as money may be sent by way of payment. We have therefore to see whether under the deed the tea, sent by the defendant to the plaintiff for sale, was sent merely by way of discharge of the defendants debt or whether it was sent in the course of dealings designed to create a credit to the defendant as the owner of the tea sold, which credit when brought into the account would operate by way of set-off to reduce the defendants liability."8. The observation of Rankin C. J, has never been dissented from in our courts and we think it lays down the law correctly. The learned Judges of the appellate bench of the High Court also appear to have applied the same test as that laid down by Rankin C. J. They however came to the conclusion that the account between the parties was mutual for the following reasons :"The point then reduces itself to the fact that the defendant company had advanced a certain amount of money to the plaintiffs for the supply of grains. This excludes the question of monthly payments being made to the plaintiffs. The plaintiffs having received a certain amount of money, they became debtors to the defendant company to this extent, and when the supplies exceeded Rs. 13,000 the defendant company became debtors to the plaintiff and later on when again the plaintiffs supplies exceeded the amount paid to them, the defendants again became the debtors. This would show that there were reciprocity of dealings and transactions on each side creating independent obligations on the other."9. This reasoning is clearly erroneous. On the facts stated by the learned Judges there was no reciprocity of dealings; there were no independent obligations.What in fact had happened was that the sellers had undertaken to make delivery of goods and the buyer had agreed to pay for them and had in part made the payment in advance. There can be no question that in so far as the payments had been made after the goods had been delivered, they had been made towards the price due. Such payments were in discharge of the obligation created in the buyer by the deliveries made to it to pay the price of the goods delivered and did not create any obligation on the sellers in favour of the buyer.The learned Judges do not appear to have taken a contrary view of the result of these payments.10. The learned Judges however held that the payment of Rs. 13,000 by the buyer in advance before delivery had started, made the sellers the debtor of the buyer and had created an obligation on the sellers in favour of the buyer. This apparently was the reason which led them to the view that there were reciprocal demands and that the transactions had created independent obligations on each of the parties. This view is unfounded.The sum of Rs. 13,000 had been paid as and by way of advance payment of price of goods to be delivered. It was paid in discharge of obligations to arise under the contract. It was paid under the terms of the contract which was to buy goods and pay for them. It did not itself create any obligation on the sellers in favour of the buyer; it was not intended to be and did not amount to an independent transaction detached from the rest of the contract. The sellers were under an obligation to deliver the goods but that obligation arose from the contract and not from the payment of the advance alone. If the sellers had failed to deliver goods, they would have been liable to refund the monies advanced on account of the price and might also have been liable in damages, but such liability would then have arisen from the contract and not from the fact of the advances having been made. Apart from such failure, the buyer could not recover the monies paid in advance.No question has, however, been raised as to any, default on the part of the sellers to deliver goods. This case therefore involved no reciprocity of demands. Article 115 of the Jammu and Kashmir Limitation Act cannot be applied to the suit.11.The learned Judges appear also to have taken the view that since the goods were not delivered at the times fixed in the contract, and the prices due were not paid at the end of the months, the parties clearly indicated their intention not to abide by the contract. We are unable to agree with this view. Such conduct only indicated that the parties had extended the time fixed under the contract for delivery of the goods and payment of price, leaving the contract otherwise unaffected.12. The learned Judges also observed that the contract did not provide how the amount advanced was to be adjusted.But it seems clear that when the contract provided that the advance was towards the price to become due, as the learned Judges themselves held, it followed by necessary implication that the advance had to be adjusted against the price when it became due. So there was a provision in the contract for adjusting the advance.13. We think it fit also to observe that it is somewhat curious that any question as to the application of Art, 115 was allowed to be raised. The applicability of that article depends on special facts. No such facts appear in the plaint. There is no hint there that the account was mutual. We feel sure that if the attention of the learned Judges of the High Court had been drawn to is aspect of the matter, they would not have permitted any question as to Art. 115 being raised, and the parties would have saved considerable costs thereby. | 1[ds]9. This reasoning is clearly erroneous. On the facts stated by the learned Judges there was no reciprocity of dealings; there were no independent obligations.What in fact had happened was that the sellers had undertaken to make delivery of goods and the buyer had agreed to pay for them and had in part made the payment in advance. There can be no question that in so far as the payments had been made after the goods had been delivered, they had been made towards the price due. Such payments were in discharge of the obligation created in the buyer by the deliveries made to it to pay the price of the goods delivered and did not create any obligation on the sellers in favour of the buyer.The learned Judges do not appear to have taken a contrary view of the result of these payments.10. The learned Judges however held that the payment of Rs. 13,000 by the buyer in advance before delivery had started, made the sellers the debtor of the buyer and had created an obligation on the sellers in favour of the buyer. This apparently was the reason which led them to the view that there were reciprocal demands and that the transactions had created independent obligations on each of the parties. This view is unfounded.The sum of Rs. 13,000 had been paid as and by way of advance payment of price of goods to be delivered. It was paid in discharge of obligations to arise under the contract. It was paid under the terms of the contract which was to buy goods and pay for them. It did not itself create any obligation on the sellers in favour of the buyer; it was not intended to be and did not amount to an independent transaction detached from the rest of the contract. The sellers were under an obligation to deliver the goods but that obligation arose from the contract and not from the payment of the advance alone. If the sellers had failed to deliver goods, they would have been liable to refund the monies advanced on account of the price and might also have been liable in damages, but such liability would then have arisen from the contract and not from the fact of the advances having been made. Apart from such failure, the buyer could not recover the monies paid in advance.No question has, however, been raised as to any, default on the part of the sellers to deliver goods. This case therefore involved no reciprocity of demands. Article 115 of the Jammu and Kashmir Limitation Act cannot be applied to the suit.11.The learned Judges appear also to have taken the view that since the goods were not delivered at the times fixed in the contract, and the prices due were not paid at the end of the months, the parties clearly indicated their intention not to abide by the contract. We are unable to agree with this view. Such conduct only indicated that the parties had extended the time fixed under the contract for delivery of the goods and payment of price, leaving the contract otherwise unaffected.We think it fit also to observe that it is somewhat curious that any question as to the application of Art, 115 was allowed to be raised. The applicability of that article depends on special facts. No such facts appear in the plaint. There is no hint there that the account was mutual. We feel sure that if the attention of the learned Judges of the High Court had been drawn to is aspect of the matter, they would not have permitted any question as to Art. 115 being raised, and the parties would have saved considerable costs thereby.The learned Judges also observed that the contract did not provide how the amount advanced was to be adjusted.But it seems clear that when the contract provided that the advance was towards the price to become due, as the learned Judges themselves held, it followed by necessary implication that the advance had to be adjusted against the price when it became due. So there was a provision in the contract for adjusting the advance. | 1 | 1,863 | 743 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
A.C.J., transactions on each side creating independent obligations on the other and not merely transactions which create obligations on one side, those on the other being merely complete or partial discharges of such obligations.It is further clear that goods as well as money may be sent by way of payment. We have therefore to see whether under the deed the tea, sent by the defendant to the plaintiff for sale, was sent merely by way of discharge of the defendants debt or whether it was sent in the course of dealings designed to create a credit to the defendant as the owner of the tea sold, which credit when brought into the account would operate by way of set-off to reduce the defendants liability."8. The observation of Rankin C. J, has never been dissented from in our courts and we think it lays down the law correctly. The learned Judges of the appellate bench of the High Court also appear to have applied the same test as that laid down by Rankin C. J. They however came to the conclusion that the account between the parties was mutual for the following reasons :"The point then reduces itself to the fact that the defendant company had advanced a certain amount of money to the plaintiffs for the supply of grains. This excludes the question of monthly payments being made to the plaintiffs. The plaintiffs having received a certain amount of money, they became debtors to the defendant company to this extent, and when the supplies exceeded Rs. 13,000 the defendant company became debtors to the plaintiff and later on when again the plaintiffs supplies exceeded the amount paid to them, the defendants again became the debtors. This would show that there were reciprocity of dealings and transactions on each side creating independent obligations on the other."9. This reasoning is clearly erroneous. On the facts stated by the learned Judges there was no reciprocity of dealings; there were no independent obligations.What in fact had happened was that the sellers had undertaken to make delivery of goods and the buyer had agreed to pay for them and had in part made the payment in advance. There can be no question that in so far as the payments had been made after the goods had been delivered, they had been made towards the price due. Such payments were in discharge of the obligation created in the buyer by the deliveries made to it to pay the price of the goods delivered and did not create any obligation on the sellers in favour of the buyer.The learned Judges do not appear to have taken a contrary view of the result of these payments.10. The learned Judges however held that the payment of Rs. 13,000 by the buyer in advance before delivery had started, made the sellers the debtor of the buyer and had created an obligation on the sellers in favour of the buyer. This apparently was the reason which led them to the view that there were reciprocal demands and that the transactions had created independent obligations on each of the parties. This view is unfounded.The sum of Rs. 13,000 had been paid as and by way of advance payment of price of goods to be delivered. It was paid in discharge of obligations to arise under the contract. It was paid under the terms of the contract which was to buy goods and pay for them. It did not itself create any obligation on the sellers in favour of the buyer; it was not intended to be and did not amount to an independent transaction detached from the rest of the contract. The sellers were under an obligation to deliver the goods but that obligation arose from the contract and not from the payment of the advance alone. If the sellers had failed to deliver goods, they would have been liable to refund the monies advanced on account of the price and might also have been liable in damages, but such liability would then have arisen from the contract and not from the fact of the advances having been made. Apart from such failure, the buyer could not recover the monies paid in advance.No question has, however, been raised as to any, default on the part of the sellers to deliver goods. This case therefore involved no reciprocity of demands. Article 115 of the Jammu and Kashmir Limitation Act cannot be applied to the suit.11.The learned Judges appear also to have taken the view that since the goods were not delivered at the times fixed in the contract, and the prices due were not paid at the end of the months, the parties clearly indicated their intention not to abide by the contract. We are unable to agree with this view. Such conduct only indicated that the parties had extended the time fixed under the contract for delivery of the goods and payment of price, leaving the contract otherwise unaffected.12. The learned Judges also observed that the contract did not provide how the amount advanced was to be adjusted.But it seems clear that when the contract provided that the advance was towards the price to become due, as the learned Judges themselves held, it followed by necessary implication that the advance had to be adjusted against the price when it became due. So there was a provision in the contract for adjusting the advance.13. We think it fit also to observe that it is somewhat curious that any question as to the application of Art, 115 was allowed to be raised. The applicability of that article depends on special facts. No such facts appear in the plaint. There is no hint there that the account was mutual. We feel sure that if the attention of the learned Judges of the High Court had been drawn to is aspect of the matter, they would not have permitted any question as to Art. 115 being raised, and the parties would have saved considerable costs thereby.
### Response:
1
### Explanation:
9. This reasoning is clearly erroneous. On the facts stated by the learned Judges there was no reciprocity of dealings; there were no independent obligations.What in fact had happened was that the sellers had undertaken to make delivery of goods and the buyer had agreed to pay for them and had in part made the payment in advance. There can be no question that in so far as the payments had been made after the goods had been delivered, they had been made towards the price due. Such payments were in discharge of the obligation created in the buyer by the deliveries made to it to pay the price of the goods delivered and did not create any obligation on the sellers in favour of the buyer.The learned Judges do not appear to have taken a contrary view of the result of these payments.10. The learned Judges however held that the payment of Rs. 13,000 by the buyer in advance before delivery had started, made the sellers the debtor of the buyer and had created an obligation on the sellers in favour of the buyer. This apparently was the reason which led them to the view that there were reciprocal demands and that the transactions had created independent obligations on each of the parties. This view is unfounded.The sum of Rs. 13,000 had been paid as and by way of advance payment of price of goods to be delivered. It was paid in discharge of obligations to arise under the contract. It was paid under the terms of the contract which was to buy goods and pay for them. It did not itself create any obligation on the sellers in favour of the buyer; it was not intended to be and did not amount to an independent transaction detached from the rest of the contract. The sellers were under an obligation to deliver the goods but that obligation arose from the contract and not from the payment of the advance alone. If the sellers had failed to deliver goods, they would have been liable to refund the monies advanced on account of the price and might also have been liable in damages, but such liability would then have arisen from the contract and not from the fact of the advances having been made. Apart from such failure, the buyer could not recover the monies paid in advance.No question has, however, been raised as to any, default on the part of the sellers to deliver goods. This case therefore involved no reciprocity of demands. Article 115 of the Jammu and Kashmir Limitation Act cannot be applied to the suit.11.The learned Judges appear also to have taken the view that since the goods were not delivered at the times fixed in the contract, and the prices due were not paid at the end of the months, the parties clearly indicated their intention not to abide by the contract. We are unable to agree with this view. Such conduct only indicated that the parties had extended the time fixed under the contract for delivery of the goods and payment of price, leaving the contract otherwise unaffected.We think it fit also to observe that it is somewhat curious that any question as to the application of Art, 115 was allowed to be raised. The applicability of that article depends on special facts. No such facts appear in the plaint. There is no hint there that the account was mutual. We feel sure that if the attention of the learned Judges of the High Court had been drawn to is aspect of the matter, they would not have permitted any question as to Art. 115 being raised, and the parties would have saved considerable costs thereby.The learned Judges also observed that the contract did not provide how the amount advanced was to be adjusted.But it seems clear that when the contract provided that the advance was towards the price to become due, as the learned Judges themselves held, it followed by necessary implication that the advance had to be adjusted against the price when it became due. So there was a provision in the contract for adjusting the advance.
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RAHUL JAIN Vs. RAVE SCANS PVT. LTD | counsel for the second respondent-Hero, urged that this court should not interfere with the impugned order. He relied on the observations in Swiss Ribbons and Section 30 of the IBC, to say that creditors falling within one description or class cannot be discriminated against. It was pointed out that the PSU banks dues were given primacy, inasmuch as all of them were given a settlement of 45% of their admitted claims; however, the dissenting Financial Creditor (Hero) was provided with 32.34% of its admitted claim which is plainly discriminatory and contrary to the letter and spirit of the IBC. 9. Mr. Sibal relied on the observations of this court in Swiss Ribbons (supra) that: 72. The aforesaid Regulation further strengthens the rights of operational creditors by statutorily incorporating the principle of fair and equitable dealing of operational creditors rights, together with priority in payment over financial creditors. 10. Section 30, which is relied upon by the respondents, and which was interpreted by the NCLAT, reads as follows: 30. (1) A resolution applicant may submit a resolution plan to the resolution professional prepared on the basis of the information memorandum. (2) The resolution professional shall examine each resolution plan received by him to confirm that each resolution plan— (a) provides for the payment of insolvency resolution process costs in a manner specified by the Board in priority to the repayment of other debts of the corporate debtor; (b) provides for the repayment of the debts of operational creditors in such manner as may be specified by the Board which shall not be less than the amount to be paid to the operational creditors in the event of a liquidation of the corporate debtor under section 53; (c) provides for the management of the affairs of the Corporate debtor after approval of the resolution plan; (d) the implementation and supervision of the resolution plan; (e) does not contravene any of the provisions of the law for the time being in force; (f) conforms to such other requirements as may be specified by the Board. (3) The resolution professional shall present to the committee of creditors for its approval such resolution plans which confirm the conditions referred to in sub- section (2). (4) The committee of creditors may approve a resolution plan by a vote of not less than seventy-five per cent. of voting share of the financial creditors. (5) The resolution applicant may attend the meeting of the committee of creditors in which the resolution plan of the applicant is considered: Provided that the resolution applicant shall not have a right to vote at the meeting of the committee of creditors unless such resolution applicant is also a financial creditor. (6) The resolution professional shall submit the resolution plan as approved by the committee of creditors to the Adjudicating Authority. 11. Section 30 lays out the duties of the resolution professional and the various steps that she or he has to take, as well as the considerations that are to weigh, in examining a resolution plan. The principle of fairness engrafted in the provision is that the plan should make a provision for repayment of debts of operational creditors having regard to the value, which shall not be less than what is prescribed by the Board (i.e. the Insolvency Board), repayable in the event of liquidation, spelt out in Section 53. Section 30(3) requires the resolution professional to present the resolution plan to the committee of creditors and Section 30(4) stipulates that approval shall be by a vote not less than 75% of the voting share of the financial creditors. Regulation 38, as it stood before the amendment and its substitution, read as follows: 38. Mandatory contents of the resolution plan.— (1) A resolution plan shall identify specific sources of funds that will be used to pay the- (a) insolvency resolution process costs and provide that the [insolvency resolution process costs, to the extent unpaid, will be paid] in priority to any other creditor; (b) liquidation value due to operational creditors and provide for such payment in priority to any financial creditor which shall in any event be made before the expiry of thirty days after the approval of a resolution plan by the Adjudicating Authority; and (c) liquidation value due to dissenting financial creditors and provide that such payment is made before any recoveries are made by the financial creditors who voted in favour of the resolution plan. 12. After its amendment, Regulation 38 now reads as follows: 38. Mandatory contents of the resolution plan.— (1) The amount due to the operational creditors under a resolution plan shall be given priority in payment over financial creditors. (1-A) A resolution plan shall include a statement as to how it has dealt with the interests of all stakeholders, including financial creditors and operational creditors, of the corporate debtor. 13. In the present case, it is noticeable that no doubt, Hero was provided with 32.34% of its admitted claim as it has dissented with the plan. On the other hand, Tata Capital Financial Services Ltd. was provided with 75.63% of its admitted claim; other financial creditors (Indian Overseas Bank, Bank of Baroda and Punjab National Bank) were provided with 45% of their admitted claims. Given that the resolution process began well before the amended regulation came into force (in fact, January, 2017) and the resolution plan was prepared and approved before that event, the wide observations of the NCLAT, requiring the appellant to match the pay-out (offered to other financial creditors) to Hero, was not justified. The court notices that the liquidation value of the corporate debtor was ascertained at 36 crores. Against the ? said amount, the appellant offered 54 crores. The plan was ? approved and, except the objections of the dissenting creditor (i.e Hero), the plan has attained finality. Having regard to these factors and circumstances, it is held that the NCLATs order and directions were not justified. They are hereby set aside; the order of the NCLT is hereby restored. | 1[ds]13. In the present case, it is noticeable that no doubt, Hero was provided with 32.34% of its admitted claim as it has dissented with the plan. On the other hand, Tata Capital Financial Services Ltd. was provided with 75.63% of its admitted claim; other financial creditors (Indian Overseas Bank, Bank of Baroda and Punjab National Bank) were provided with 45% of their admitted claims. Given that the resolution process began well before the amended regulation came into force (in fact, January, 2017) and the resolution plan was prepared and approved before that event, the wide observations of the NCLAT, requiring the appellant to match the pay-out (offered to other financial creditors) to Hero, was not justified. The court notices that the liquidation value of the corporate debtor was ascertained at 36 crores. Against the ? said amount, the appellant offered 54 crores. The plan was ? approved and, except the objections of the dissenting creditor (i.e Hero), the plan has attained finality. Having regard to these factors and circumstances, it is held that the NCLATs order and directions were not justified. They are hereby set aside; the order of the NCLT is hereby restored. | 1 | 2,598 | 234 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
counsel for the second respondent-Hero, urged that this court should not interfere with the impugned order. He relied on the observations in Swiss Ribbons and Section 30 of the IBC, to say that creditors falling within one description or class cannot be discriminated against. It was pointed out that the PSU banks dues were given primacy, inasmuch as all of them were given a settlement of 45% of their admitted claims; however, the dissenting Financial Creditor (Hero) was provided with 32.34% of its admitted claim which is plainly discriminatory and contrary to the letter and spirit of the IBC. 9. Mr. Sibal relied on the observations of this court in Swiss Ribbons (supra) that: 72. The aforesaid Regulation further strengthens the rights of operational creditors by statutorily incorporating the principle of fair and equitable dealing of operational creditors rights, together with priority in payment over financial creditors. 10. Section 30, which is relied upon by the respondents, and which was interpreted by the NCLAT, reads as follows: 30. (1) A resolution applicant may submit a resolution plan to the resolution professional prepared on the basis of the information memorandum. (2) The resolution professional shall examine each resolution plan received by him to confirm that each resolution plan— (a) provides for the payment of insolvency resolution process costs in a manner specified by the Board in priority to the repayment of other debts of the corporate debtor; (b) provides for the repayment of the debts of operational creditors in such manner as may be specified by the Board which shall not be less than the amount to be paid to the operational creditors in the event of a liquidation of the corporate debtor under section 53; (c) provides for the management of the affairs of the Corporate debtor after approval of the resolution plan; (d) the implementation and supervision of the resolution plan; (e) does not contravene any of the provisions of the law for the time being in force; (f) conforms to such other requirements as may be specified by the Board. (3) The resolution professional shall present to the committee of creditors for its approval such resolution plans which confirm the conditions referred to in sub- section (2). (4) The committee of creditors may approve a resolution plan by a vote of not less than seventy-five per cent. of voting share of the financial creditors. (5) The resolution applicant may attend the meeting of the committee of creditors in which the resolution plan of the applicant is considered: Provided that the resolution applicant shall not have a right to vote at the meeting of the committee of creditors unless such resolution applicant is also a financial creditor. (6) The resolution professional shall submit the resolution plan as approved by the committee of creditors to the Adjudicating Authority. 11. Section 30 lays out the duties of the resolution professional and the various steps that she or he has to take, as well as the considerations that are to weigh, in examining a resolution plan. The principle of fairness engrafted in the provision is that the plan should make a provision for repayment of debts of operational creditors having regard to the value, which shall not be less than what is prescribed by the Board (i.e. the Insolvency Board), repayable in the event of liquidation, spelt out in Section 53. Section 30(3) requires the resolution professional to present the resolution plan to the committee of creditors and Section 30(4) stipulates that approval shall be by a vote not less than 75% of the voting share of the financial creditors. Regulation 38, as it stood before the amendment and its substitution, read as follows: 38. Mandatory contents of the resolution plan.— (1) A resolution plan shall identify specific sources of funds that will be used to pay the- (a) insolvency resolution process costs and provide that the [insolvency resolution process costs, to the extent unpaid, will be paid] in priority to any other creditor; (b) liquidation value due to operational creditors and provide for such payment in priority to any financial creditor which shall in any event be made before the expiry of thirty days after the approval of a resolution plan by the Adjudicating Authority; and (c) liquidation value due to dissenting financial creditors and provide that such payment is made before any recoveries are made by the financial creditors who voted in favour of the resolution plan. 12. After its amendment, Regulation 38 now reads as follows: 38. Mandatory contents of the resolution plan.— (1) The amount due to the operational creditors under a resolution plan shall be given priority in payment over financial creditors. (1-A) A resolution plan shall include a statement as to how it has dealt with the interests of all stakeholders, including financial creditors and operational creditors, of the corporate debtor. 13. In the present case, it is noticeable that no doubt, Hero was provided with 32.34% of its admitted claim as it has dissented with the plan. On the other hand, Tata Capital Financial Services Ltd. was provided with 75.63% of its admitted claim; other financial creditors (Indian Overseas Bank, Bank of Baroda and Punjab National Bank) were provided with 45% of their admitted claims. Given that the resolution process began well before the amended regulation came into force (in fact, January, 2017) and the resolution plan was prepared and approved before that event, the wide observations of the NCLAT, requiring the appellant to match the pay-out (offered to other financial creditors) to Hero, was not justified. The court notices that the liquidation value of the corporate debtor was ascertained at 36 crores. Against the ? said amount, the appellant offered 54 crores. The plan was ? approved and, except the objections of the dissenting creditor (i.e Hero), the plan has attained finality. Having regard to these factors and circumstances, it is held that the NCLATs order and directions were not justified. They are hereby set aside; the order of the NCLT is hereby restored.
### Response:
1
### Explanation:
13. In the present case, it is noticeable that no doubt, Hero was provided with 32.34% of its admitted claim as it has dissented with the plan. On the other hand, Tata Capital Financial Services Ltd. was provided with 75.63% of its admitted claim; other financial creditors (Indian Overseas Bank, Bank of Baroda and Punjab National Bank) were provided with 45% of their admitted claims. Given that the resolution process began well before the amended regulation came into force (in fact, January, 2017) and the resolution plan was prepared and approved before that event, the wide observations of the NCLAT, requiring the appellant to match the pay-out (offered to other financial creditors) to Hero, was not justified. The court notices that the liquidation value of the corporate debtor was ascertained at 36 crores. Against the ? said amount, the appellant offered 54 crores. The plan was ? approved and, except the objections of the dissenting creditor (i.e Hero), the plan has attained finality. Having regard to these factors and circumstances, it is held that the NCLATs order and directions were not justified. They are hereby set aside; the order of the NCLT is hereby restored.
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Jaswant Gir Vs. State of Punjab | of the deceased containing papers like identity card, bus pass, loan documents, etc. were recovered from the possession of the acquitted accused on the basis of his disclosure statement." 4. The High Court was of the view that the above circumstances coupled with the confession of the appellant made before PW 9, would establish the guilt of the appellant beyond reasonable doubt. It may be stated that the bag of the deceased was discovered on the basis of the disclosure made by the accused Sukhwinder Singh under S.27 of the Evidence Act. The said accused as well as the third accused were acquitted mainly on the ground that the alleged confessional statement did not implicate those two persons. 5. Apart from the extra judicial confession which we shall advert to a little later, the main incriminating fact relied upon is that the deceased was last seen by PW 14 in the company of the appellant and the other accused and that he was given a lift in the vehicle belonging to the appellant. In order to establish that the vehicle belonged to or was in de facto possession of the appellant, some evidence has been let in. The "last seen" evidence is sought to be established by the testimony of PW 14. At the outset, we must observe that there is a serious doubt cast on the version of PW 14 about the deceased going in the vehicle of the appellant. The destination of the deceased was Pehowa whereas the vehicle had come from Pehowa and was proceeding towards Devigarh which is in a different direction. Prima facie there is no apparent reason why the deceased would have chosen to go in the vehicle which was proceeding to some other destination. The High Court resorted to a guess that the deceased would have been lured to consume liquor or his relatives might be there at Devigarh. Without probing further into the correctness of the "last seen" version emanating from PW 14s evidence, even assuming that the deceased did accompany the accused in their vehicle, this circumstance by itself does not lead to the irresistible conclusion that the appellant and his companion had killed him and thrown the dead body in the culvert. It cannot be presumed that the appellant and his companions were responsible for the murder, though grave suspicion arises against the accused. There is considerable time gap between the deceased boarding the vehicle of the appellant and the time when PW 11 found the dead body. In the absence of any other links in the chain of circumstantial evidence it is not possible to convict the appellant solely on the basis of the "last seen" evidence, even if the version of PW 14 in this regard is believed. In view of this, the evidence of PW 9 as regards the alleged confession made to him by the appellant assumes importance. 6. We must, therefore, test the veracity of the version of PW 9 in regard to the alleged confession made by the appellant. The following is the relevant portion of the deposition of PW 9 narrating the alleged confession made by the appellant: "I know Jaswant Gir to some extent. About 1 - 1/4 to 1 - 1/2 years back he came to me in the evening in my room of the house. He told that he was having a vehicle. One person in drunken condition sat in his vehicle from Markanda. He was having a bag with him. He took his vehicle towards Devigarh. On the way he got suspicion that the bag of that person was containing money. He put the parna (loose cloth) around the neck of the person and killed him. He further stated that Sukhwinder Singh and Jaspal Singh were also with him in the vehicle." 7. The first and foremost aspect which needs to be taken note of is that PW 9 is not a person who had intimate relations or friendship with the appellant. PW 9 says that he knew the appellant "to some extent" meaning thereby that he had only acquaintance with him. In cross examination, he stated that he did not visit his house earlier and that he met the appellant once or twice at the bus stand. There is no earthly reason why he should go to PW 9 and confide to him as to what he had done. According to PW 9, the appellant wanted to surrender himself to the police. But there is no explanation from PW 9 as to why he did not take him to the police station. He merely stated that the appellant did not turn up thereafter. The circumstances in which PW 9 went to the police station and got his statement recorded by the police on 14-11-1997 are also not forthcoming. In this context the statement of PW 9 towards the close of the cross examination assumes some importance. He stated that he had some cases pending in the courts and that he was seeking the help of the police in connection with those cases and he was often going to Police Station Julkan. Thus, he could be a convenient witness for the prosecution. That apart, the alleged confession made by the appellant, as narrated by PW 9, is not in conformity with the prosecution case. According to the prosecution, all the three accused were involved and PW 9 stated so before the police and as per the statement made by PW 9 to the police, all the three accused made the confession before him but he gave a different version in the court and that is why he was treated as hostile witness and leading questions were put to him by the prosecution. Thus, the credibility of this witness is in doubt. One more point to be noted is that the alleged statement of the appellant that the deceased was in a drunken condition cannot be correct as the doctor found no evidence of consumption of alcohol by the deceased. | 1[ds]6. We must, therefore, test the veracity of the version of PW 9 in regard to the alleged confession made by the appellant. The following is the relevant portion of the deposition of PW 9 narrating the alleged confession made by the appellant:"I know Jaswant Gir to some extent. About 1 - 1/4 to 1 - 1/2 years back he came to me in the evening in my room of the house. He told that he was having a vehicle. One person in drunken condition sat in his vehicle from Markanda. He was having a bag with him. He took his vehicle towards Devigarh. On the way he got suspicion that the bag of that person was containing money. He put the parna (loose cloth) around the neck of the person and killed him. He further stated that Sukhwinder Singh and Jaspal Singh were also with him in the vehicle."7. The first and foremost aspect which needs to be taken note of is that PW 9 is not a person who had intimate relations or friendship with the appellant. PW 9 says that he knew the appellant "to some extent" meaning thereby that he had only acquaintance with him. In cross examination, he stated that he did not visit his house earlier and that he met the appellant once or twice at the bus stand. There is no earthly reason why he should go to PW 9 and confide to him as to what he had done. According to PW 9, the appellant wanted to surrender himself to the police. But there is no explanation from PW 9 as to why he did not take him to the police station. He merely stated that the appellant did not turn up thereafter. The circumstances in which PW 9 went to the police station and got his statement recorded by the police on 14-11-1997 are also not forthcoming. In this context the statement of PW 9 towards the close of the cross examination assumes some importance. He stated that he had some cases pending in the courts and that he was seeking the help of the police in connection with those cases and he was often going to Police Station Julkan. Thus, he could be a convenient witness for the prosecution. That apart, the alleged confession made by the appellant, as narrated by PW 9, is not in conformity with the prosecution case. According to the prosecution, all the three accused were involved and PW 9 stated so before the police and as per the statement made by PW 9 to the police, all the three accused made the confession before him but he gave a different version in the court and that is why he was treated as hostile witness and leading questions were put to him by the prosecution. Thus, the credibility of this witness is in doubt. One more point to be noted is that the alleged statement of the appellant that the deceased was in a drunken condition cannot be correct as the doctor found no evidence of consumption of alcohol by the deceased5. Apart from the extra judicial confession which we shall advert to a little later, the main incriminating fact relied upon is that the deceased was last seen by PW 14 in the company of the appellant and the other accused and that he was given a lift in the vehicle belonging to the appellant. In order to establish that the vehicle belonged to or was in de facto possession of the appellant, some evidence has been let in. The "last seen" evidence is sought to be established by the testimony of PW 14. At the outset, we must observe that there is a serious doubt cast on the version of PW 14 about the deceased going in the vehicle of the appellant. The destination of the deceased was Pehowa whereas the vehicle had come from Pehowa and was proceeding towards Devigarh which is in a different direction. Prima facie there is no apparent reason why the deceased would have chosen to go in the vehicle which was proceeding to some other destination. The High Court resorted to a guess that the deceased would have been lured to consume liquor or his relatives might be there at Devigarh. Without probing further into the correctness of the "last seen" version emanating from PW 14s evidence, even assuming that the deceased did accompany the accused in their vehicle, this circumstance by itself does not lead to the irresistible conclusion that the appellant and his companion had killed him and thrown the dead body in the culvert. It cannot be presumed that the appellant and his companions were responsible for the murder, though grave suspicion arises against the accused. There is considerable time gap between the deceased boarding the vehicle of the appellant and the time when PW 11 found the dead body. In the absence of any other links in the chain of circumstantial evidence it is not possible to convict the appellant solely on the basis of the "last seen" evidence, even if the version of PW 14 in this regard is believed. In view of this, the evidence of PW 9 as regards the alleged confession made to him by the appellant assumes importance. | 1 | 2,044 | 957 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
of the deceased containing papers like identity card, bus pass, loan documents, etc. were recovered from the possession of the acquitted accused on the basis of his disclosure statement." 4. The High Court was of the view that the above circumstances coupled with the confession of the appellant made before PW 9, would establish the guilt of the appellant beyond reasonable doubt. It may be stated that the bag of the deceased was discovered on the basis of the disclosure made by the accused Sukhwinder Singh under S.27 of the Evidence Act. The said accused as well as the third accused were acquitted mainly on the ground that the alleged confessional statement did not implicate those two persons. 5. Apart from the extra judicial confession which we shall advert to a little later, the main incriminating fact relied upon is that the deceased was last seen by PW 14 in the company of the appellant and the other accused and that he was given a lift in the vehicle belonging to the appellant. In order to establish that the vehicle belonged to or was in de facto possession of the appellant, some evidence has been let in. The "last seen" evidence is sought to be established by the testimony of PW 14. At the outset, we must observe that there is a serious doubt cast on the version of PW 14 about the deceased going in the vehicle of the appellant. The destination of the deceased was Pehowa whereas the vehicle had come from Pehowa and was proceeding towards Devigarh which is in a different direction. Prima facie there is no apparent reason why the deceased would have chosen to go in the vehicle which was proceeding to some other destination. The High Court resorted to a guess that the deceased would have been lured to consume liquor or his relatives might be there at Devigarh. Without probing further into the correctness of the "last seen" version emanating from PW 14s evidence, even assuming that the deceased did accompany the accused in their vehicle, this circumstance by itself does not lead to the irresistible conclusion that the appellant and his companion had killed him and thrown the dead body in the culvert. It cannot be presumed that the appellant and his companions were responsible for the murder, though grave suspicion arises against the accused. There is considerable time gap between the deceased boarding the vehicle of the appellant and the time when PW 11 found the dead body. In the absence of any other links in the chain of circumstantial evidence it is not possible to convict the appellant solely on the basis of the "last seen" evidence, even if the version of PW 14 in this regard is believed. In view of this, the evidence of PW 9 as regards the alleged confession made to him by the appellant assumes importance. 6. We must, therefore, test the veracity of the version of PW 9 in regard to the alleged confession made by the appellant. The following is the relevant portion of the deposition of PW 9 narrating the alleged confession made by the appellant: "I know Jaswant Gir to some extent. About 1 - 1/4 to 1 - 1/2 years back he came to me in the evening in my room of the house. He told that he was having a vehicle. One person in drunken condition sat in his vehicle from Markanda. He was having a bag with him. He took his vehicle towards Devigarh. On the way he got suspicion that the bag of that person was containing money. He put the parna (loose cloth) around the neck of the person and killed him. He further stated that Sukhwinder Singh and Jaspal Singh were also with him in the vehicle." 7. The first and foremost aspect which needs to be taken note of is that PW 9 is not a person who had intimate relations or friendship with the appellant. PW 9 says that he knew the appellant "to some extent" meaning thereby that he had only acquaintance with him. In cross examination, he stated that he did not visit his house earlier and that he met the appellant once or twice at the bus stand. There is no earthly reason why he should go to PW 9 and confide to him as to what he had done. According to PW 9, the appellant wanted to surrender himself to the police. But there is no explanation from PW 9 as to why he did not take him to the police station. He merely stated that the appellant did not turn up thereafter. The circumstances in which PW 9 went to the police station and got his statement recorded by the police on 14-11-1997 are also not forthcoming. In this context the statement of PW 9 towards the close of the cross examination assumes some importance. He stated that he had some cases pending in the courts and that he was seeking the help of the police in connection with those cases and he was often going to Police Station Julkan. Thus, he could be a convenient witness for the prosecution. That apart, the alleged confession made by the appellant, as narrated by PW 9, is not in conformity with the prosecution case. According to the prosecution, all the three accused were involved and PW 9 stated so before the police and as per the statement made by PW 9 to the police, all the three accused made the confession before him but he gave a different version in the court and that is why he was treated as hostile witness and leading questions were put to him by the prosecution. Thus, the credibility of this witness is in doubt. One more point to be noted is that the alleged statement of the appellant that the deceased was in a drunken condition cannot be correct as the doctor found no evidence of consumption of alcohol by the deceased.
### Response:
1
### Explanation:
6. We must, therefore, test the veracity of the version of PW 9 in regard to the alleged confession made by the appellant. The following is the relevant portion of the deposition of PW 9 narrating the alleged confession made by the appellant:"I know Jaswant Gir to some extent. About 1 - 1/4 to 1 - 1/2 years back he came to me in the evening in my room of the house. He told that he was having a vehicle. One person in drunken condition sat in his vehicle from Markanda. He was having a bag with him. He took his vehicle towards Devigarh. On the way he got suspicion that the bag of that person was containing money. He put the parna (loose cloth) around the neck of the person and killed him. He further stated that Sukhwinder Singh and Jaspal Singh were also with him in the vehicle."7. The first and foremost aspect which needs to be taken note of is that PW 9 is not a person who had intimate relations or friendship with the appellant. PW 9 says that he knew the appellant "to some extent" meaning thereby that he had only acquaintance with him. In cross examination, he stated that he did not visit his house earlier and that he met the appellant once or twice at the bus stand. There is no earthly reason why he should go to PW 9 and confide to him as to what he had done. According to PW 9, the appellant wanted to surrender himself to the police. But there is no explanation from PW 9 as to why he did not take him to the police station. He merely stated that the appellant did not turn up thereafter. The circumstances in which PW 9 went to the police station and got his statement recorded by the police on 14-11-1997 are also not forthcoming. In this context the statement of PW 9 towards the close of the cross examination assumes some importance. He stated that he had some cases pending in the courts and that he was seeking the help of the police in connection with those cases and he was often going to Police Station Julkan. Thus, he could be a convenient witness for the prosecution. That apart, the alleged confession made by the appellant, as narrated by PW 9, is not in conformity with the prosecution case. According to the prosecution, all the three accused were involved and PW 9 stated so before the police and as per the statement made by PW 9 to the police, all the three accused made the confession before him but he gave a different version in the court and that is why he was treated as hostile witness and leading questions were put to him by the prosecution. Thus, the credibility of this witness is in doubt. One more point to be noted is that the alleged statement of the appellant that the deceased was in a drunken condition cannot be correct as the doctor found no evidence of consumption of alcohol by the deceased5. Apart from the extra judicial confession which we shall advert to a little later, the main incriminating fact relied upon is that the deceased was last seen by PW 14 in the company of the appellant and the other accused and that he was given a lift in the vehicle belonging to the appellant. In order to establish that the vehicle belonged to or was in de facto possession of the appellant, some evidence has been let in. The "last seen" evidence is sought to be established by the testimony of PW 14. At the outset, we must observe that there is a serious doubt cast on the version of PW 14 about the deceased going in the vehicle of the appellant. The destination of the deceased was Pehowa whereas the vehicle had come from Pehowa and was proceeding towards Devigarh which is in a different direction. Prima facie there is no apparent reason why the deceased would have chosen to go in the vehicle which was proceeding to some other destination. The High Court resorted to a guess that the deceased would have been lured to consume liquor or his relatives might be there at Devigarh. Without probing further into the correctness of the "last seen" version emanating from PW 14s evidence, even assuming that the deceased did accompany the accused in their vehicle, this circumstance by itself does not lead to the irresistible conclusion that the appellant and his companion had killed him and thrown the dead body in the culvert. It cannot be presumed that the appellant and his companions were responsible for the murder, though grave suspicion arises against the accused. There is considerable time gap between the deceased boarding the vehicle of the appellant and the time when PW 11 found the dead body. In the absence of any other links in the chain of circumstantial evidence it is not possible to convict the appellant solely on the basis of the "last seen" evidence, even if the version of PW 14 in this regard is believed. In view of this, the evidence of PW 9 as regards the alleged confession made to him by the appellant assumes importance.
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Burn Standard Co. Vs. Dinabandhu Majumdar | or any other instrumentality there is the minimum age of entry prescribed depending on the functional requirements for the post. In order to verify that the person concerned is not below that prescribed age he is required to disclosed his date of birth. The date of birth is verified and if found to be correct is entered in the service record. It is ordinarily presumed that the birth date disclosed by the incumbent is accurate. The situation then is that the incumbent gives the date of birth and the employer accepts it as true and accurate before it is entered in the service record. This entry in the service record made on the basis of the employees statement cannot be changed unilaterally at the sweet will of the employee except in the manner permitted by service conditions or the relevant rules. Here again considerations for a change in the date of birth may be diverse and the employer would be entitled to view it not merely from the angle of there being a genuine mistake but also from the point of its impact on the service in the establishment. It is common knowledge that every establishment has its own set of service conditions governed by rules. It is equally known that practically every establishment prescribes a minimum age for entry into service at different levels in the establishment. The first thing to consider is whether on the date of entry into service would the employee have been eligible for entry into service on the revised date of birth. Secondly, would revision of his date of birth after a long lapse of time upset the promotional chances of others in the establishment who may have joined on the basis that the incumbent would retire on a given date opening up promotional avenues for others. If that be so and if permitting a change in the date of birth is likely to cause frustration down the line resulting in causing an adverse effect on efficiency in functioning, the employer may refuse to permit correction in the date at a belated stage. It must be remembered that such sudden and belated change may upset the legitimate expectation of others who may have joined service hoping that on the retirement of the senior on the due date there would be an upward movement in the hierarchy. In any case in such cases interim injunction for continuance in service should not be granted as it visits the juniors with irreparable injury, in that, they would be denied promotions, a damage which cannot be repaired if the claim is ultimately found to be unacceptable. On the other hand, if no interim relief for continuance in service is granted and ultimately his claim for correction of birth date is found to be acceptable the damage can be repaired by granting him all those monetary benefits which he would have received had be continued in service. We are, therefore, of the opinion that in such cases it would be imprudent to grant interim relief.12. When we turn to the case of respondent-1, he did not object to his date of birth or age entered in his `Service and Leave Record with appellant-1 during 36 years of his service. When the writ application filed by respondent-1 was entertained by the High Court, it is difficult to find that it has used its discretion in the matter either judiciously or reasonably, and for that reason alone the judgment of the Division Bench of the High Court under appeal by which the order of the learned Single Judge has been affirmed calls to be interfered with and set aside.13. Even, on merits, both judgment of the Division Bench of the High Court and the order of a Single Judge of the High Court, cannot be sustained. For correction of respondent-1s date of birth found in his `Service and Leave Record with appellant-1, the Calcutta Universitys copy of the duplicate Admit Card to Matric examination, which purported to show his date of birth as 7th day of July, 1934, could not have been relied upon by the High Court for it was not a Matriculation certificate of respondent-1 where his date of birth had been found for being acted upon as correct date of birth, had been held in a previous Division Bench decision of the High Court vide Pramatha Nath Choudhury v. The State of West Bengal and others, 1981(1) SLR 570.14. Undoubtedly, the claim of appellant-Pramatha Nath Choudhary in the appeal before the Division Bench of the High Court was exactly similar to the claim of respondent-1 in the present appeal. All that the Division Bench has said in its decision is that date of birth of the appellant which was accepted by his employer should be corrected to accord with date of birth found in his Matriculation certificate. No reason is given as to why towards the fag end of the service career of the appellant before it, such correction should have been permitted. Moreover, even though the Matriculation certificate produced by the appellant before the Division Bench for the first time was seriously doubted, no opportunity had been given to the Government to make good the doubt. Having gone through the said judgment of the Division Bench in appeal, we have no hesitation in reaching the conclusion that the Division Bench was wholly unjustified in interfering with the order of the learned Single Judge of the same court whereby it was held, in our view, rightly that the appellants writ application filed for correction of his date of birth at the fag end of his service career for avoiding his superannuation which was due, cannot be entertained.15. Hence, the order of the learned Single Judge of the High Court whereby he allowed the writ application of respondent-1 here and the judgment of the Division Bench of the High Court whereby the order of the learned Single Judge is affirmed, cannot be sustained and call to be interfered with. | 1[ds]7. Having gone through the order of the learned single Judge, we are unable to think that the discretionary extraordinary jurisdiction vested in the High Court under Article 226 of the Constitution has been properly exercised by him in issuing a writ in the nature of mandamus directing appellant-1 to correct the date of birth of respondent-1 in his `Service and Leave Record and allow him to continue in service beyond the date when he should have retired having regard to his age as entered in his `Service and Leave Record. The Division Bench of the High Court also, we are inclined to think has failed to see that the learned single Judge had not properly exercised his writ jurisdiction in granting relief to respondent-1, if regard is had to the nature of relief which he had sought for.8. The importance of the date of birth of an employee given to his employer and accepted as correct by the latter and entered in the `Service and Leave Record of the former, cannot be underestimated. That is so for the reason that the employees service with the employer has to be necessarily regulated according to such date of birth. Therefore, when a person is taken into service on appointment, he would be required by his employer to declare his correct date of birth and support the same by production of appropriate certificates or documents, if any. Even where the persons so appointed fail to produce the certificates or documents in proof of their date of birth, they would be required to affix their thumb impression or signature in authentication of their declared ages or dates of birth. When, on the basis of such declaration made or certificates produced by the employee an entry is made of his date of birth in his `Service and Leave Record to be opened, that will amount to acceptance by the employer of such date of birth, as correct, be it the Government or its instrumentality. When such entry is made in Service Record of the employee the only way in which the employer, Government or its instrumentality can get over such entry, because of subsequent disclosures as to its correctness, is to hold an inquiry into the matter by affording an opportunity to the employee concerned to have his say in the matter. But when once the employer, the Government or the instrumentality concerned accepts the date of birth of an employee as declared by him and supported by certificates or documents produced by him and allows him to enter into its service and continue on such basis, is it open to such employee to claim that the date of birth declared and authenticated by him was incorrect and, therefore, the employer, be it the Government or its instrumentality, should correct his date of birth in his `Service and Leave Record according to what he claims to be true and if the Government or its instrumentality concerned refuses to accept suchNo doubt, there may be special law or rules which permit a person appointed in the service of the Government or its instrumentality to seek correction of his date of birth which might have been accepted by the Government or its instrumentality as the case may be, as correct at the time of his appointment. But, the special law or rules governing the service of an employee if forbids correction of such date of birth of employee after its acceptance by the Government or its instrumentality, its subsequent correction at the instance of such employee, becomes impermissible. However, in the absence of such special law or rules it may be open to the employee concerned to seek correction from the Government or its instrumentality, of the date of birth declared by him and accepted by the Government. Even where such correction is sought, the government or its instrumentality, as the case may be, would be entitled to refuse to correct the date of birth of its employee if the facts in the given case do not warrant such correction. If that be the legal position, can it be said that it is open to a High Court in exercise of its extra-ordinary writ jurisdiction to entertain a writ application of an employee of the Government or its instrumentality, as the case may be, for correction of his date of birth entered in his `Service and Leave Record at the time of his appointment and direct the Government or its instrumentality concerned to correct such date of his birth in his `Service and Leave Record and continue him in service beyond the date of his normal retirement, is the question. It is true that the High Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution can even enter upon disputed questions of fact, if the case in which the extraordinary jurisdiction is invoked warrants adoption of such inevitable course and decide upon the same for giving relief to the concerned party.Entertainment by High Courts of writ applications made by employees of the Government or its instrumentalities at the fag end of their services and when they are due for retirement from their services, in our view, is unwarranted. It would be so for the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications for correction of dates of birth of some employees of Government or its instrumentalities will mar the chances of promotion of his juniors and prove to be an undue encouragement to the other employees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due. Extra-ordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution, in our considered view, is not meant to make employees of Government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employers, placing reliance on the so called newly found material. The fact that an employee of Government or its instrumentality who will be in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his Service Record, the very conduct of non-raising of an objection in the matter by the employee, in our view, should be a sufficient such reason for the High Court, not entertain such applications on grounds of acquiescence, undue delay and laches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ application for no employee, who had grievance as to his date of birth in his `Service and Leave Record could have genuinely waited till the fag end of his service career to get corrected by availing of the extraordinary jurisdiction of a High Court. Therefore, we have no hesitation, in holding, that ordinarily High Courts should not, in exercise of its discretionary writ jurisdiction, entertain a writ application/petition filed by an employee of the Goverment or its instrumentality, towards the fag end on his service, seeking correction of his date of birth entered in his `Service and Leave record or Service Register with the avowed object of continuing in service beyond the normal period of his retirement.11. Prudence on the part of every High Court, should, however, in our considered view, prevent it from granting interview relief in a petition for correction of the date of birth filed under Article 226 of the Constitution by an employee in relation to his employment, because of the well settled legal position, governing such correction of date of birth, which precisely stated, is the following :-When a person seeks employment, he impliedly agrees with the terms and conditions on which employment is offered. For every post in the service of the Government or any other instrumentality there is the minimum age of entry prescribed depending on the functional requirements for the post. In order to verify that the person concerned is not below that prescribed age he is required to disclosed his date of birth. The date of birth is verified and if found to be correct is entered in the service record. It is ordinarily presumed that the birth date disclosed by the incumbent is accurate. The situation then is that the incumbent gives the date of birth and the employer accepts it as true and accurate before it is entered in the service record. This entry in the service record made on the basis of the employees statement cannot be changed unilaterally at the sweet will of the employee except in the manner permitted by service conditions or the relevant rules. Here again considerations for a change in the date of birth may be diverse and the employer would be entitled to view it not merely from the angle of there being a genuine mistake but also from the point of its impact on the service in the establishment. It is common knowledge that every establishment has its own set of service conditions governed by rules. It is equally known that practically every establishment prescribes a minimum age for entry into service at different levels in the establishment. The first thing to consider is whether on the date of entry into service would the employee have been eligible for entry into service on the revised date of birth. Secondly, would revision of his date of birth after a long lapse of time upset the promotional chances of others in the establishment who may have joined on the basis that the incumbent would retire on a given date opening up promotional avenues for others. If that be so and if permitting a change in the date of birth is likely to cause frustration down the line resulting in causing an adverse effect on efficiency in functioning, the employer may refuse to permit correction in the date at a belated stage. It must be remembered that such sudden and belated change may upset the legitimate expectation of others who may have joined service hoping that on the retirement of the senior on the due date there would be an upward movement in the hierarchy. In any case in such cases interim injunction for continuance in service should not be granted as it visits the juniors with irreparable injury, in that, they would be denied promotions, a damage which cannot be repaired if the claim is ultimately found to be unacceptable. On the other hand, if no interim relief for continuance in service is granted and ultimately his claim for correction of birth date is found to be acceptable the damage can be repaired by granting him all those monetary benefits which he would have received had be continued in service. We are, therefore, of the opinion that in such cases it would be imprudent to grant interim relief.12. When we turn to the case of respondent-1, he did not object to his date of birth or age entered in his `Service and Leave Record with appellant-1 during 36 years of his service. When the writ application filed by respondent-1 was entertained by the High Court, it is difficult to find that it has used its discretion in the matter either judiciously or reasonably, and for that reason alone the judgment of the Division Bench of the High Court under appeal by which the order of the learned Single Judge has been affirmed calls to be interfered with and set aside.13. Even, on merits, both judgment of the Division Bench of the High Court and the order of a Single Judge of the High Court, cannot be sustained. For correction of respondent-1s date of birth found in his `Service and Leave Record with appellant-1, the Calcutta Universitys copy of the duplicate Admit Card to Matric examination, which purported to show his date of birth as 7th day of July, 1934, could not have been relied upon by the High Court for it was not a Matriculation certificate of respondent-1 where his date of birth had been found for being acted upon as correct date of birth, had been held in a previous Division Bench decision of the High Court vide Pramatha Nath Choudhury v. The State of West Bengal and others, 1981(1) SLR 570.14. Undoubtedly, the claim of appellant-Pramatha Nath Choudhary in the appeal before the Division Bench of the High Court was exactly similar to the claim of respondent-1 in the present appeal. All that the Division Bench has said in its decision is that date of birth of the appellant which was accepted by his employer should be corrected to accord with date of birth found in his Matriculation certificate. No reason is given as to why towards the fag end of the service career of the appellant before it, such correction should have been permitted. Moreover, even though the Matriculation certificate produced by the appellant before the Division Bench for the first time was seriously doubted, no opportunity had been given to the Government to make good the doubt. Having gone through the said judgment of the Division Bench in appeal, we have no hesitation in reaching the conclusion that the Division Bench was wholly unjustified in interfering with the order of the learned Single Judge of the same court whereby it was held, in our view, rightly that the appellants writ application filed for correction of his date of birth at the fag end of his service career for avoiding his superannuation which was due, cannot be entertained.15. Hence, the order of the learned Single Judge of the High Court whereby he allowed the writ application of respondent-1 here and the judgment of the Division Bench of the High Court whereby the order of the learned Single Judge is affirmed, cannot be sustained and call to be interfered with. | 1 | 4,516 | 2,514 | ### Instruction:
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### Input:
or any other instrumentality there is the minimum age of entry prescribed depending on the functional requirements for the post. In order to verify that the person concerned is not below that prescribed age he is required to disclosed his date of birth. The date of birth is verified and if found to be correct is entered in the service record. It is ordinarily presumed that the birth date disclosed by the incumbent is accurate. The situation then is that the incumbent gives the date of birth and the employer accepts it as true and accurate before it is entered in the service record. This entry in the service record made on the basis of the employees statement cannot be changed unilaterally at the sweet will of the employee except in the manner permitted by service conditions or the relevant rules. Here again considerations for a change in the date of birth may be diverse and the employer would be entitled to view it not merely from the angle of there being a genuine mistake but also from the point of its impact on the service in the establishment. It is common knowledge that every establishment has its own set of service conditions governed by rules. It is equally known that practically every establishment prescribes a minimum age for entry into service at different levels in the establishment. The first thing to consider is whether on the date of entry into service would the employee have been eligible for entry into service on the revised date of birth. Secondly, would revision of his date of birth after a long lapse of time upset the promotional chances of others in the establishment who may have joined on the basis that the incumbent would retire on a given date opening up promotional avenues for others. If that be so and if permitting a change in the date of birth is likely to cause frustration down the line resulting in causing an adverse effect on efficiency in functioning, the employer may refuse to permit correction in the date at a belated stage. It must be remembered that such sudden and belated change may upset the legitimate expectation of others who may have joined service hoping that on the retirement of the senior on the due date there would be an upward movement in the hierarchy. In any case in such cases interim injunction for continuance in service should not be granted as it visits the juniors with irreparable injury, in that, they would be denied promotions, a damage which cannot be repaired if the claim is ultimately found to be unacceptable. On the other hand, if no interim relief for continuance in service is granted and ultimately his claim for correction of birth date is found to be acceptable the damage can be repaired by granting him all those monetary benefits which he would have received had be continued in service. We are, therefore, of the opinion that in such cases it would be imprudent to grant interim relief.12. When we turn to the case of respondent-1, he did not object to his date of birth or age entered in his `Service and Leave Record with appellant-1 during 36 years of his service. When the writ application filed by respondent-1 was entertained by the High Court, it is difficult to find that it has used its discretion in the matter either judiciously or reasonably, and for that reason alone the judgment of the Division Bench of the High Court under appeal by which the order of the learned Single Judge has been affirmed calls to be interfered with and set aside.13. Even, on merits, both judgment of the Division Bench of the High Court and the order of a Single Judge of the High Court, cannot be sustained. For correction of respondent-1s date of birth found in his `Service and Leave Record with appellant-1, the Calcutta Universitys copy of the duplicate Admit Card to Matric examination, which purported to show his date of birth as 7th day of July, 1934, could not have been relied upon by the High Court for it was not a Matriculation certificate of respondent-1 where his date of birth had been found for being acted upon as correct date of birth, had been held in a previous Division Bench decision of the High Court vide Pramatha Nath Choudhury v. The State of West Bengal and others, 1981(1) SLR 570.14. Undoubtedly, the claim of appellant-Pramatha Nath Choudhary in the appeal before the Division Bench of the High Court was exactly similar to the claim of respondent-1 in the present appeal. All that the Division Bench has said in its decision is that date of birth of the appellant which was accepted by his employer should be corrected to accord with date of birth found in his Matriculation certificate. No reason is given as to why towards the fag end of the service career of the appellant before it, such correction should have been permitted. Moreover, even though the Matriculation certificate produced by the appellant before the Division Bench for the first time was seriously doubted, no opportunity had been given to the Government to make good the doubt. Having gone through the said judgment of the Division Bench in appeal, we have no hesitation in reaching the conclusion that the Division Bench was wholly unjustified in interfering with the order of the learned Single Judge of the same court whereby it was held, in our view, rightly that the appellants writ application filed for correction of his date of birth at the fag end of his service career for avoiding his superannuation which was due, cannot be entertained.15. Hence, the order of the learned Single Judge of the High Court whereby he allowed the writ application of respondent-1 here and the judgment of the Division Bench of the High Court whereby the order of the learned Single Judge is affirmed, cannot be sustained and call to be interfered with.
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1
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or any other instrumentality there is the minimum age of entry prescribed depending on the functional requirements for the post. In order to verify that the person concerned is not below that prescribed age he is required to disclosed his date of birth. The date of birth is verified and if found to be correct is entered in the service record. It is ordinarily presumed that the birth date disclosed by the incumbent is accurate. The situation then is that the incumbent gives the date of birth and the employer accepts it as true and accurate before it is entered in the service record. This entry in the service record made on the basis of the employees statement cannot be changed unilaterally at the sweet will of the employee except in the manner permitted by service conditions or the relevant rules. Here again considerations for a change in the date of birth may be diverse and the employer would be entitled to view it not merely from the angle of there being a genuine mistake but also from the point of its impact on the service in the establishment. It is common knowledge that every establishment has its own set of service conditions governed by rules. It is equally known that practically every establishment prescribes a minimum age for entry into service at different levels in the establishment. The first thing to consider is whether on the date of entry into service would the employee have been eligible for entry into service on the revised date of birth. Secondly, would revision of his date of birth after a long lapse of time upset the promotional chances of others in the establishment who may have joined on the basis that the incumbent would retire on a given date opening up promotional avenues for others. If that be so and if permitting a change in the date of birth is likely to cause frustration down the line resulting in causing an adverse effect on efficiency in functioning, the employer may refuse to permit correction in the date at a belated stage. It must be remembered that such sudden and belated change may upset the legitimate expectation of others who may have joined service hoping that on the retirement of the senior on the due date there would be an upward movement in the hierarchy. In any case in such cases interim injunction for continuance in service should not be granted as it visits the juniors with irreparable injury, in that, they would be denied promotions, a damage which cannot be repaired if the claim is ultimately found to be unacceptable. On the other hand, if no interim relief for continuance in service is granted and ultimately his claim for correction of birth date is found to be acceptable the damage can be repaired by granting him all those monetary benefits which he would have received had be continued in service. We are, therefore, of the opinion that in such cases it would be imprudent to grant interim relief.12. When we turn to the case of respondent-1, he did not object to his date of birth or age entered in his `Service and Leave Record with appellant-1 during 36 years of his service. When the writ application filed by respondent-1 was entertained by the High Court, it is difficult to find that it has used its discretion in the matter either judiciously or reasonably, and for that reason alone the judgment of the Division Bench of the High Court under appeal by which the order of the learned Single Judge has been affirmed calls to be interfered with and set aside.13. Even, on merits, both judgment of the Division Bench of the High Court and the order of a Single Judge of the High Court, cannot be sustained. For correction of respondent-1s date of birth found in his `Service and Leave Record with appellant-1, the Calcutta Universitys copy of the duplicate Admit Card to Matric examination, which purported to show his date of birth as 7th day of July, 1934, could not have been relied upon by the High Court for it was not a Matriculation certificate of respondent-1 where his date of birth had been found for being acted upon as correct date of birth, had been held in a previous Division Bench decision of the High Court vide Pramatha Nath Choudhury v. The State of West Bengal and others, 1981(1) SLR 570.14. Undoubtedly, the claim of appellant-Pramatha Nath Choudhary in the appeal before the Division Bench of the High Court was exactly similar to the claim of respondent-1 in the present appeal. All that the Division Bench has said in its decision is that date of birth of the appellant which was accepted by his employer should be corrected to accord with date of birth found in his Matriculation certificate. No reason is given as to why towards the fag end of the service career of the appellant before it, such correction should have been permitted. Moreover, even though the Matriculation certificate produced by the appellant before the Division Bench for the first time was seriously doubted, no opportunity had been given to the Government to make good the doubt. Having gone through the said judgment of the Division Bench in appeal, we have no hesitation in reaching the conclusion that the Division Bench was wholly unjustified in interfering with the order of the learned Single Judge of the same court whereby it was held, in our view, rightly that the appellants writ application filed for correction of his date of birth at the fag end of his service career for avoiding his superannuation which was due, cannot be entertained.15. Hence, the order of the learned Single Judge of the High Court whereby he allowed the writ application of respondent-1 here and the judgment of the Division Bench of the High Court whereby the order of the learned Single Judge is affirmed, cannot be sustained and call to be interfered with.
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General Manager, North East Frontierrailway Vs. Sachindra Nath Sen | Grover, J.1. This is an appeal by special leave from a judgment of the Assam &Nagaland High Court by which a petition under Art, 226 of the Constitution filed by the respondent challenging the termination of his service was allowed.2. The respondent was serving the railways as an Assistant Traffic Superintendent prior to December 2, 1957. His services were terminated by serving on him one months notice under Rule 148 contained in the Indian Railways Establishment Code. The respondent filed an appeal to the General Manager but he was informed by means of a letter dated February 3, 1959 that no appeal was competent. In June 1959 he was offered reemployment as a Statistical Inspector in the scale of Rs. 200 to Rs. 300 plus the usual allowances on terms and conditions applicable to temporary employees. It appears that the respondent accepted the offer and was appointed to the post. He was finally informed by means of a letter dated December 31, 1959 that his representation had been considered by the Railway Board relating to the termination of his services as Assistant Traffic Superintendent but the same had been rejected. On December 5, 1963 this Court decided by majority in Moti Ram Deka etc. v. General Manager. N.E.F. Railways etc.([1964] 5 S.C.R. 683.) that Rules 148 (3) and 149(3) of the Indian Railway Establishment Code were invalid. The respondent made a representation thereafter in 1964 to the General Manager to reconsider the case of the termination of his services in the light of the law declared by this Court. The; General Manager sent a reply dated June 3, 1964 saying that the question of the respondents reinstatement could not be considered as it was not covered by limits of law, i.e. it does not fail within a period of six years from the date of your termination of service". This was followed by another letter dated December 7, 1964 in which it was stated:"It has now been clarified by the Railway Board that the claim for reinstatement of the Ex: Employees whose services were terminated in terms of Rule 148/ 149 within a period of six years prior to 5-12-63 (the date of the Supreme Courts judgment), and whose representation is still pending is only to be considered. Since your services were terminated on 2-12-57 which is more than six years counting backwards from 5-12-63, it is regretted that your request for reinstatement cannot be acceded to".3. Thereupon the respondent filed a petition under Art. 226 of the Constitution in the. High Court. As stated before the petition was allowed principally on the ground that the railway authorities were not legally justified in making a distinction between officers whose services had been terminated within six years prior to the judgment of this. Court in Moti Ram Dekas([1964] 5 S.C.R. 683.) case and the cases of those whose services had been terminated earlier. As pointed out in the judgment of the High Court that respondents services were terminated on December 2, 1957, he was behind time by 3 days only. It was found that such an artificial demarcation between the two kinds of cases was hit by Art. 14 of the Constitution. The other point that the respondent had accepted reemployment and must be deemed to have waived his rights to reinstatement to his original office was also repelled.4. In Moti Ram Dekas([1964] 5 S.C.R. 683.) case this Court held that the termination of the services. of a permanent servant authorised by Rules 148(3) and 149(3) of the Railway Establishment Code was inconsistent with the provisions of Art. 311 (2) of the Constitution. The termination of the services of a permanent servant authorised by those Rules was no more and no less than removal from service and Art. 311(2) was at once attracted. In view of the law laid down by this Court the termination of the services of the respondent in December 1957 was wholly void and illegal. The railway authorities recognised, as indeed they were bound to do, the implications and effect of the judgment of this Court but created a wholly illegal and artificial distinction by saying that only those employees whose services were terminated in terms Rule 148 within a period of six years prior to December 5, 1963 and whose representations were pending were to be considered for reinstatement, whereas the employees like the respondent whose services had been terminated on a date which was more than six years counting backward from December 5, 1963 would not be reinstated. The fixing of the period of six years was on the face of it arbitrary and no valid or reasonable explanation has been given as to why this limit was fixed. If the termination of service of an employee in terms of Rule 148 was wholly illegal and void and was violative of Art. 311 (2) of the Constitution his reinstatement should have followed as a matter of course. The submission of the learned counsel for the appellant that the railway authorities would have found lot of difficulty and inconvenience in reinstating employees without taking into consideration the period which had elapsed is devoid of any merit and cannot be accepted.5. | 0[ds]In view of the law laid down by this Court the termination of the services of the respondent in December 1957 was wholly void and illegal. The railway authorities recognised, as indeed they were bound to do, the implications and effect of the judgment of this Court but created a wholly illegal and artificial distinction by saying that only those employees whose services were terminated in terms Rule 148 within a period of six years prior to December 5, 1963 and whose representations were pending were to be considered for reinstatement, whereas the employees like the respondent whose services had been terminated on a date which was more than six years counting backward from December 5, 1963 would not be reinstated. The fixing of the period of six years was on the face of it arbitrary and no valid or reasonable explanation has been given as to why this limit was fixed. If the termination of service of an employee in terms of Rule 148 was wholly illegal and void and was violative of Art. 311 (2) of the Constitution his reinstatement should have followed as a matter of course. Thesubmission of the learned counsel for the appellant that the railway authorities would have found lot of difficulty and inconvenience in reinstating employees without taking into consideration the period which had elapsedis devoid of any merit and cannot be accepted. | 0 | 974 | 248 | ### Instruction:
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Grover, J.1. This is an appeal by special leave from a judgment of the Assam &Nagaland High Court by which a petition under Art, 226 of the Constitution filed by the respondent challenging the termination of his service was allowed.2. The respondent was serving the railways as an Assistant Traffic Superintendent prior to December 2, 1957. His services were terminated by serving on him one months notice under Rule 148 contained in the Indian Railways Establishment Code. The respondent filed an appeal to the General Manager but he was informed by means of a letter dated February 3, 1959 that no appeal was competent. In June 1959 he was offered reemployment as a Statistical Inspector in the scale of Rs. 200 to Rs. 300 plus the usual allowances on terms and conditions applicable to temporary employees. It appears that the respondent accepted the offer and was appointed to the post. He was finally informed by means of a letter dated December 31, 1959 that his representation had been considered by the Railway Board relating to the termination of his services as Assistant Traffic Superintendent but the same had been rejected. On December 5, 1963 this Court decided by majority in Moti Ram Deka etc. v. General Manager. N.E.F. Railways etc.([1964] 5 S.C.R. 683.) that Rules 148 (3) and 149(3) of the Indian Railway Establishment Code were invalid. The respondent made a representation thereafter in 1964 to the General Manager to reconsider the case of the termination of his services in the light of the law declared by this Court. The; General Manager sent a reply dated June 3, 1964 saying that the question of the respondents reinstatement could not be considered as it was not covered by limits of law, i.e. it does not fail within a period of six years from the date of your termination of service". This was followed by another letter dated December 7, 1964 in which it was stated:"It has now been clarified by the Railway Board that the claim for reinstatement of the Ex: Employees whose services were terminated in terms of Rule 148/ 149 within a period of six years prior to 5-12-63 (the date of the Supreme Courts judgment), and whose representation is still pending is only to be considered. Since your services were terminated on 2-12-57 which is more than six years counting backwards from 5-12-63, it is regretted that your request for reinstatement cannot be acceded to".3. Thereupon the respondent filed a petition under Art. 226 of the Constitution in the. High Court. As stated before the petition was allowed principally on the ground that the railway authorities were not legally justified in making a distinction between officers whose services had been terminated within six years prior to the judgment of this. Court in Moti Ram Dekas([1964] 5 S.C.R. 683.) case and the cases of those whose services had been terminated earlier. As pointed out in the judgment of the High Court that respondents services were terminated on December 2, 1957, he was behind time by 3 days only. It was found that such an artificial demarcation between the two kinds of cases was hit by Art. 14 of the Constitution. The other point that the respondent had accepted reemployment and must be deemed to have waived his rights to reinstatement to his original office was also repelled.4. In Moti Ram Dekas([1964] 5 S.C.R. 683.) case this Court held that the termination of the services. of a permanent servant authorised by Rules 148(3) and 149(3) of the Railway Establishment Code was inconsistent with the provisions of Art. 311 (2) of the Constitution. The termination of the services of a permanent servant authorised by those Rules was no more and no less than removal from service and Art. 311(2) was at once attracted. In view of the law laid down by this Court the termination of the services of the respondent in December 1957 was wholly void and illegal. The railway authorities recognised, as indeed they were bound to do, the implications and effect of the judgment of this Court but created a wholly illegal and artificial distinction by saying that only those employees whose services were terminated in terms Rule 148 within a period of six years prior to December 5, 1963 and whose representations were pending were to be considered for reinstatement, whereas the employees like the respondent whose services had been terminated on a date which was more than six years counting backward from December 5, 1963 would not be reinstated. The fixing of the period of six years was on the face of it arbitrary and no valid or reasonable explanation has been given as to why this limit was fixed. If the termination of service of an employee in terms of Rule 148 was wholly illegal and void and was violative of Art. 311 (2) of the Constitution his reinstatement should have followed as a matter of course. The submission of the learned counsel for the appellant that the railway authorities would have found lot of difficulty and inconvenience in reinstating employees without taking into consideration the period which had elapsed is devoid of any merit and cannot be accepted.5.
### Response:
0
### Explanation:
In view of the law laid down by this Court the termination of the services of the respondent in December 1957 was wholly void and illegal. The railway authorities recognised, as indeed they were bound to do, the implications and effect of the judgment of this Court but created a wholly illegal and artificial distinction by saying that only those employees whose services were terminated in terms Rule 148 within a period of six years prior to December 5, 1963 and whose representations were pending were to be considered for reinstatement, whereas the employees like the respondent whose services had been terminated on a date which was more than six years counting backward from December 5, 1963 would not be reinstated. The fixing of the period of six years was on the face of it arbitrary and no valid or reasonable explanation has been given as to why this limit was fixed. If the termination of service of an employee in terms of Rule 148 was wholly illegal and void and was violative of Art. 311 (2) of the Constitution his reinstatement should have followed as a matter of course. Thesubmission of the learned counsel for the appellant that the railway authorities would have found lot of difficulty and inconvenience in reinstating employees without taking into consideration the period which had elapsedis devoid of any merit and cannot be accepted.
|
M/S. Ivp Limited Vs. Ivp Limited Workers Union & Another | the permission, the company, had without prejudice to its contention that the Award of the Industrial Court was unsustainable had move a second application for closure of the unit. This permission was not granted by the competent authority within the statutory period of 60 days. Thus, as a consequence thereof, the permission would be deemed to have been granted with effect from 24th April, 2008. In the submission of the review petitioner, thus, no order could be passed under section 17(b) as the industry would be deemed to have been closed in terms of the provisions of the Industrial Disputes Act, 1947. Secondly, it is stated that out of 113 workmen, some workmen had retired were covered by the closure and the company paid closure compensation, gratuity etc. in addition to the provident fund and other dues to the workmen which were accepted by them and in all, a sum of Rs.12,27,61,629/- had been paid which was not taken into consideration by the court while passing the order under review. It is also contended that an undertaking had been given by the company not to alienate, transfer or part with possession of the assets of the company, the General Reserves of which according to the workmen are valued at Rs. 216 crores and thus, the interest of the workmen was fully protected and there was no occasion for the court to impose the condition of deposit 50% of the arrears. According to the learned counsel appearing for the non-applicants, it is contended that the grant of present review petition cannot be reheard all over again which is impermissible. Secondly, the amount due and payable to the workmen is much excess than the amount paid to the workmen by the company. Therefore, the condition imposed is valid and proper. The workmen are entitled to the back wages in view of the fact that Award is in their favour, where closure permission was denied. Thus, they would be entitled to all the benefits. The company cannot take any advantage of the alleged deemed closure with effect from 24.4.2008. 2. Having heard the learned counsel appearing for the parties, we are of the view that as far as the first contention is concerned, the company had not even taken up any specific ground in the manner as sought to be argued now in their memorandum of appeal. Furthermore, this is a matter which can, if permitted to be raised in the manner as now raised by the petitioner be considered by the court while dealing with the merits of the appeal. Reliance made by the applicant on the judgment of the learned Single Judge of this court in the case of Hind Rectifiers Limited v. Presiding Officer, 1st Labour Court and another, 2001(1) Bom. C.R. 543 has no application to the present case because the principle stated in that judgment was that the amount payable under section 17(b) of the Act would be extended to an employee for a period subsequent to the superannuation of the said officer. This judgment has hardly any application on facts to the present case. Before the Industrial Court, no such issue has been raised. Thus, the parties are free to take such actions as are permissible to them in accordance with law but the company cannot take any benefit in the present review petition to deprive the workmen of their dues in terms of section 17(b) of the Act. This court has granted stay of operation of the Award on compliance with the conditions of Section 17(b) and we see no reason to take any different view. As already noticed, this is a prima facie view for the purposes of interim application and the order will be controlled by such directions as may be passed by the court at the time of hearing of the appeal finally. 3. There is some merit in the contention raised on behalf of the company that the court has not taken notice of a sum of Rs. 12,27,61,629/- having been paid to the workmen by the company while directing deposit of 50% of the back wages of the workmen to be deposited. This amount as well as the undertaking given by the company and the order of injunction passed in regard to the assets of the company ought to have been considered by this court. It is true that this contention was raised before us. Though by and large it would hardly change the order, the fact of the matter still remains that the court has not noticed and dealt with this contention in some detail. There is no dispute to the fact before us that this amount has been paid to the workmen who have already received closure compensation, gratuity and provident fund etc. but according to the counsel, this amount can easily be set of and even then some dues will be payable for the subsequent period and therefore, the condition would continue. Once it is not disputed that amount has been received by the workmen to the extent of Rs. 12,27,61,629/- in relation to which the order of injunction relates has already been paid by the company. Therefore, the condition of deposit of 50% of the back wages may be harsh and would imbalance the equities between the parties. The estimated value of the assets of the company even according to the workmen are far in excess of their claims. It would cover the entire claim of the workmen despite the fact that they have received a sum of Rs. 12,27,61,629/- as closure compensation, gratuity and dues of the provident fund etc. 4. The provisions of Order 47 Rule 1 have been amended so as to entitle the review applicant to move an application for reviewing the order even where any other sufficient reason is shown to the satisfaction of the court which would satisfy the review of the order. Non-consideration of these pleas would, in our opinion, constitute sufficient and reasonable cause for reviewing the said order. | 1[ds]2. Having heard the learned counsel appearing for the parties, we are of the view that as far as the first contention is concerned, the company had not even taken up any specific ground in the manner as sought to be argued now in their memorandum of appeal. Furthermore, this is a matter which can, if permitted to be raised in the manner as now raised by the petitioner be considered by the court while dealing with the merits of the appeal. Reliance made by the applicant on the judgment of the learned Single Judge of this court in the case of Hind Rectifiers Limited v. Presiding Officer, 1st Labour Court and another, 2001(1) Bom. C.R. 543 has no application to the present case because the principle stated in that judgment was that the amount payable under section 17(b) of the Act would be extended to an employee for a period subsequent to the superannuation of the said officer. This judgment has hardly any application on facts to the present case. Before the Industrial Court, no such issue has been raised. Thus, the parties are free to take such actions as are permissible to them in accordance with law but the company cannot take any benefit in the present review petition to deprive the workmen of their dues in terms of section 17(b) of the Act. This court has granted stay of operation of the Award on compliance with the conditions of Section 17(b) and we see no reason to take any different view. As already noticed, this is a prima facie view for the purposes of interim application and the order will be controlled by such directions as may be passed by the court at the time of hearing of the appeal finally.There is some merit in the contention raised on behalf of the company that the court has not taken notice of a sum of Rs. 12,27,61,629/having been paid to the workmen by the company while directing deposit of 50% of the back wages of the workmen to be deposited. This amount as well as the undertaking given by the company and the order of injunction passed in regard to the assets of the company ought to have been considered by this court. It is true that this contention was raised before us. Though by and large it would hardly change the order, the fact of the matter still remains that the court has not noticed and dealt with this contention in some detail. There is no dispute to the fact before us that this amount has been paid to the workmen who have already received closure compensation, gratuity and provident fund etc. but according to the counsel, this amount can easily be set of and even then some dues will be payable for the subsequent period and therefore, the condition would continue. Once it is not disputed that amount has been received by the workmen to the extent of Rs. 12,27,61,629/in relation to which the order of injunction relates has already been paid by the company. Therefore, the condition of deposit of 50% of the back wages may be harsh and would imbalance the equities between the parties. The estimated value of the assets of the company even according to the workmen are far in excess of their claims. It would cover the entire claim of the workmen despite the fact that they have received a sum of Rs. 12,27,61,629/as closure compensation, gratuity and dues of the provident fund etc.The provisions of Order 47 Rule 1 have been amended so as to entitle the review applicant to move an application for reviewing the order even where any other sufficient reason is shown to the satisfaction of the court which would satisfy the review of the order.of these pleas would, in our opinion, constitute sufficient and reasonable cause for reviewing the said order. | 1 | 1,260 | 704 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
the permission, the company, had without prejudice to its contention that the Award of the Industrial Court was unsustainable had move a second application for closure of the unit. This permission was not granted by the competent authority within the statutory period of 60 days. Thus, as a consequence thereof, the permission would be deemed to have been granted with effect from 24th April, 2008. In the submission of the review petitioner, thus, no order could be passed under section 17(b) as the industry would be deemed to have been closed in terms of the provisions of the Industrial Disputes Act, 1947. Secondly, it is stated that out of 113 workmen, some workmen had retired were covered by the closure and the company paid closure compensation, gratuity etc. in addition to the provident fund and other dues to the workmen which were accepted by them and in all, a sum of Rs.12,27,61,629/- had been paid which was not taken into consideration by the court while passing the order under review. It is also contended that an undertaking had been given by the company not to alienate, transfer or part with possession of the assets of the company, the General Reserves of which according to the workmen are valued at Rs. 216 crores and thus, the interest of the workmen was fully protected and there was no occasion for the court to impose the condition of deposit 50% of the arrears. According to the learned counsel appearing for the non-applicants, it is contended that the grant of present review petition cannot be reheard all over again which is impermissible. Secondly, the amount due and payable to the workmen is much excess than the amount paid to the workmen by the company. Therefore, the condition imposed is valid and proper. The workmen are entitled to the back wages in view of the fact that Award is in their favour, where closure permission was denied. Thus, they would be entitled to all the benefits. The company cannot take any advantage of the alleged deemed closure with effect from 24.4.2008. 2. Having heard the learned counsel appearing for the parties, we are of the view that as far as the first contention is concerned, the company had not even taken up any specific ground in the manner as sought to be argued now in their memorandum of appeal. Furthermore, this is a matter which can, if permitted to be raised in the manner as now raised by the petitioner be considered by the court while dealing with the merits of the appeal. Reliance made by the applicant on the judgment of the learned Single Judge of this court in the case of Hind Rectifiers Limited v. Presiding Officer, 1st Labour Court and another, 2001(1) Bom. C.R. 543 has no application to the present case because the principle stated in that judgment was that the amount payable under section 17(b) of the Act would be extended to an employee for a period subsequent to the superannuation of the said officer. This judgment has hardly any application on facts to the present case. Before the Industrial Court, no such issue has been raised. Thus, the parties are free to take such actions as are permissible to them in accordance with law but the company cannot take any benefit in the present review petition to deprive the workmen of their dues in terms of section 17(b) of the Act. This court has granted stay of operation of the Award on compliance with the conditions of Section 17(b) and we see no reason to take any different view. As already noticed, this is a prima facie view for the purposes of interim application and the order will be controlled by such directions as may be passed by the court at the time of hearing of the appeal finally. 3. There is some merit in the contention raised on behalf of the company that the court has not taken notice of a sum of Rs. 12,27,61,629/- having been paid to the workmen by the company while directing deposit of 50% of the back wages of the workmen to be deposited. This amount as well as the undertaking given by the company and the order of injunction passed in regard to the assets of the company ought to have been considered by this court. It is true that this contention was raised before us. Though by and large it would hardly change the order, the fact of the matter still remains that the court has not noticed and dealt with this contention in some detail. There is no dispute to the fact before us that this amount has been paid to the workmen who have already received closure compensation, gratuity and provident fund etc. but according to the counsel, this amount can easily be set of and even then some dues will be payable for the subsequent period and therefore, the condition would continue. Once it is not disputed that amount has been received by the workmen to the extent of Rs. 12,27,61,629/- in relation to which the order of injunction relates has already been paid by the company. Therefore, the condition of deposit of 50% of the back wages may be harsh and would imbalance the equities between the parties. The estimated value of the assets of the company even according to the workmen are far in excess of their claims. It would cover the entire claim of the workmen despite the fact that they have received a sum of Rs. 12,27,61,629/- as closure compensation, gratuity and dues of the provident fund etc. 4. The provisions of Order 47 Rule 1 have been amended so as to entitle the review applicant to move an application for reviewing the order even where any other sufficient reason is shown to the satisfaction of the court which would satisfy the review of the order. Non-consideration of these pleas would, in our opinion, constitute sufficient and reasonable cause for reviewing the said order.
### Response:
1
### Explanation:
2. Having heard the learned counsel appearing for the parties, we are of the view that as far as the first contention is concerned, the company had not even taken up any specific ground in the manner as sought to be argued now in their memorandum of appeal. Furthermore, this is a matter which can, if permitted to be raised in the manner as now raised by the petitioner be considered by the court while dealing with the merits of the appeal. Reliance made by the applicant on the judgment of the learned Single Judge of this court in the case of Hind Rectifiers Limited v. Presiding Officer, 1st Labour Court and another, 2001(1) Bom. C.R. 543 has no application to the present case because the principle stated in that judgment was that the amount payable under section 17(b) of the Act would be extended to an employee for a period subsequent to the superannuation of the said officer. This judgment has hardly any application on facts to the present case. Before the Industrial Court, no such issue has been raised. Thus, the parties are free to take such actions as are permissible to them in accordance with law but the company cannot take any benefit in the present review petition to deprive the workmen of their dues in terms of section 17(b) of the Act. This court has granted stay of operation of the Award on compliance with the conditions of Section 17(b) and we see no reason to take any different view. As already noticed, this is a prima facie view for the purposes of interim application and the order will be controlled by such directions as may be passed by the court at the time of hearing of the appeal finally.There is some merit in the contention raised on behalf of the company that the court has not taken notice of a sum of Rs. 12,27,61,629/having been paid to the workmen by the company while directing deposit of 50% of the back wages of the workmen to be deposited. This amount as well as the undertaking given by the company and the order of injunction passed in regard to the assets of the company ought to have been considered by this court. It is true that this contention was raised before us. Though by and large it would hardly change the order, the fact of the matter still remains that the court has not noticed and dealt with this contention in some detail. There is no dispute to the fact before us that this amount has been paid to the workmen who have already received closure compensation, gratuity and provident fund etc. but according to the counsel, this amount can easily be set of and even then some dues will be payable for the subsequent period and therefore, the condition would continue. Once it is not disputed that amount has been received by the workmen to the extent of Rs. 12,27,61,629/in relation to which the order of injunction relates has already been paid by the company. Therefore, the condition of deposit of 50% of the back wages may be harsh and would imbalance the equities between the parties. The estimated value of the assets of the company even according to the workmen are far in excess of their claims. It would cover the entire claim of the workmen despite the fact that they have received a sum of Rs. 12,27,61,629/as closure compensation, gratuity and dues of the provident fund etc.The provisions of Order 47 Rule 1 have been amended so as to entitle the review applicant to move an application for reviewing the order even where any other sufficient reason is shown to the satisfaction of the court which would satisfy the review of the order.of these pleas would, in our opinion, constitute sufficient and reasonable cause for reviewing the said order.
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M/s. Neerja Realtors Pvt. Ltd Vs. Janglu (Dead) Thr. Lr | was mentioned in the summons. The report of the bailiff does not indicate that the summons were affixed on a conspicuous part of the house, at the address mentioned in the summons. There was a breach of the provisions of Order V Rule 17. When the application for substituted service was filed before the Trial Court under Order V Rule 20, a cryptic order was passed on 2 September 2011. Order V Rule 20 requires the Court to be satisfied either that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason, the summons cannot be served in the ordinary way. Substituted service is an exception to the normal mode of service. The Court must apply its mind to the requirements of Order V Rule 20 and its order must indicate due consideration of the provisions contained in it. Evidently the Trial Court failed to apply its mind to the requirements of Order V Rule 20 and passed a mechanical order. Besides this, as observed by the learned Single Judge of the High Court, the Trial Judge ignored the provisions contained in Chapter III of the Civil Manual issued by the High Court on its appellate side for the guidance of civil courts and officers subordinate to it. Paragraphs 33 to 36 of Chapter III are extracted below:“33. In addition to the service to be effected through a bailiff, a summons may also be sent to the defendant, to the address given by the plaintiff, by registered post, prepaid for acknowledgement, provided there is a regular daily postal service at such place.34. Rules as to service of summons are contained in rules 9 to 30 of Order V. Care should be taken to see that bailiffs follow those rules as well as the instructions given in the Bailiffs’ Manual.35. It is the duty of the serving officer to follow the procedure and take all the steps laid down in rule 17 of Order V. He has no discretion for not taking the necessary steps, when the conditions laid down in the said rule are fulfilled.36. It is for the Court to determine whether the service is good or bad. In determining whether the service is good or not, the attention of Courts is drawn to the necessity of strictly following the provisions of the Civil Procedure Code as to the service of processes. Ordinarily, service should not be considered sufficient unless all the requirements of the law in that behalf are fulfilled. The object of the service is to inform a party of the proceedings in due time. When from the return of a serving officer it appears that there is no likelihood that a process will come to the knowledge of the party in due time, or a probability exists that it will not so come to his knowledge, the service should not be considered to be proper. The law contemplates that the primary method of service should be tendering or delivering a copy of the process to the party personally, in case in which it may be practicable to do so. It is the duty of the serving officer to make all proper efforts to find the party, with a view to effect personal service. If it be not possible after reasonable endeavour to find the party, then only the service may be made on an adult male member of the family residing with him.”The submission that under Order V Rule 20, it was not necessary to affix a copy of the summons at the court house and at the house where the defendant is known to have last resided, once the court had directed service by publication in the newspaper really begs the question. There was a clear breach of the procedure prescribed in Order V Rule 17 even antecedent thereto. Besides, the order of the Court does not indicate due application of mind to the requirement of the satisfaction prescribed in the provision. The High Court was, in these circumstances, justified in coming to the conclusion that the ex-parte judgment and order in the suit for specific performance was liable to be set aside.16. In Bhanu Kumar Jain v Archana Kumar (2005) 1 SCC 787 ), a Bench of three Judges of this Court has held that :“An appeal against an ex parte decree in terms of Section 96(2) of the Code could be filed on the following grounds:(i) the materials on record brought on record in the ex parte proceedings in the suit by the plaintiff would not entail a decree in his favour; and(ii) the suit could not have been posted for ex parte hearing.”A defendant against whom an ex-parte decree is passed has two options: The first is to file an appeal. The second is to file an application under Order IX Rule 13. The defendant can take recourse to both the proceedings simultaneously. The right of appeal is not taken away by filing an application under Order IX Rule 13. But if the appeal is dismissed as a result of which the ex-parte decree merges with the order of the Appellate Court, a petition under Order IX Rule 13 would not be maintainable. When an application under Order IX Rule 13 is dismissed, the remedy of the defendant is under Order XLIII Rule 1. However, once such an appeal is dismissed, the same contention cannot be raised in a first appeal under Section 96. The three Judge bench decision in Bhanu Kumar Jain has been followed by another bench of three Judges in Rabindra Singh v Financial Commissioner, Cooperation, Punjab (2008) 7 SCC 663 ) and by a two Judge bench in Mahesh Yadav v Rajeshwar Singh (2009) 2 SCC 205 ). In the present case, the original defendant chose a remedy of first appeal under Section 96 and was able to establish before the High Court, adequate grounds for setting aside the judgment and decree.1 | 0[ds]A defendant against whom andecree is passed has two options: The first is to file an appeal. The second is to file an application under Order IX Rule 13. The defendant can take recourse to both the proceedings simultaneously. The right of appeal is not taken away by filing an application under Order IX Rule 13. But if the appeal is dismissed as a result of which thedecree merges with the order of the Appellate Court, a petition under Order IX Rule 13 would not be maintainable. When an application under Order IX Rule 13 is dismissed, the remedy of the defendant is under Order XLIII Rule 1. However, once such an appeal is dismissed, the same contention cannot be raised in a first appeal under Sectionthe present case, the original defendant chose a remedy of first appeal under Section 96 and was able to establish before the High Court, adequate grounds for setting aside the judgment andas the report of the bailiff indicates, he was unable to find the defendant at the address which was mentioned in the summons. The report of the bailiff does not indicate that the summons were affixed on a conspicuous part of the house, at the address mentioned in the summons. There was a breach of the provisions of Order V Rule 17. When the application for substituted service was filed before the Trial Court under Order V Rule 20, a cryptic order was passed on 2 September 2011. Order V Rule 20 requires the Court to be satisfied either that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason, the summons cannot be served in the ordinary way. Substituted service is an exception to the normal mode of service. The Court must apply its mind to the requirements of Order V Rule 20 and its order must indicate due consideration of the provisions contained in it. Evidently the Trial Court failed to apply its mind to the requirements of Order V Rule 20 and passed a mechanical order. Besides this, as observed by the learned Single Judge of the High Court, the Trial Judge ignored the provisions contained in Chapter III of the Civil Manual issued by the High Court on its appellate side for the guidance of civil courts and officers subordinate to it. | 0 | 2,583 | 433 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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was mentioned in the summons. The report of the bailiff does not indicate that the summons were affixed on a conspicuous part of the house, at the address mentioned in the summons. There was a breach of the provisions of Order V Rule 17. When the application for substituted service was filed before the Trial Court under Order V Rule 20, a cryptic order was passed on 2 September 2011. Order V Rule 20 requires the Court to be satisfied either that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason, the summons cannot be served in the ordinary way. Substituted service is an exception to the normal mode of service. The Court must apply its mind to the requirements of Order V Rule 20 and its order must indicate due consideration of the provisions contained in it. Evidently the Trial Court failed to apply its mind to the requirements of Order V Rule 20 and passed a mechanical order. Besides this, as observed by the learned Single Judge of the High Court, the Trial Judge ignored the provisions contained in Chapter III of the Civil Manual issued by the High Court on its appellate side for the guidance of civil courts and officers subordinate to it. Paragraphs 33 to 36 of Chapter III are extracted below:“33. In addition to the service to be effected through a bailiff, a summons may also be sent to the defendant, to the address given by the plaintiff, by registered post, prepaid for acknowledgement, provided there is a regular daily postal service at such place.34. Rules as to service of summons are contained in rules 9 to 30 of Order V. Care should be taken to see that bailiffs follow those rules as well as the instructions given in the Bailiffs’ Manual.35. It is the duty of the serving officer to follow the procedure and take all the steps laid down in rule 17 of Order V. He has no discretion for not taking the necessary steps, when the conditions laid down in the said rule are fulfilled.36. It is for the Court to determine whether the service is good or bad. In determining whether the service is good or not, the attention of Courts is drawn to the necessity of strictly following the provisions of the Civil Procedure Code as to the service of processes. Ordinarily, service should not be considered sufficient unless all the requirements of the law in that behalf are fulfilled. The object of the service is to inform a party of the proceedings in due time. When from the return of a serving officer it appears that there is no likelihood that a process will come to the knowledge of the party in due time, or a probability exists that it will not so come to his knowledge, the service should not be considered to be proper. The law contemplates that the primary method of service should be tendering or delivering a copy of the process to the party personally, in case in which it may be practicable to do so. It is the duty of the serving officer to make all proper efforts to find the party, with a view to effect personal service. If it be not possible after reasonable endeavour to find the party, then only the service may be made on an adult male member of the family residing with him.”The submission that under Order V Rule 20, it was not necessary to affix a copy of the summons at the court house and at the house where the defendant is known to have last resided, once the court had directed service by publication in the newspaper really begs the question. There was a clear breach of the procedure prescribed in Order V Rule 17 even antecedent thereto. Besides, the order of the Court does not indicate due application of mind to the requirement of the satisfaction prescribed in the provision. The High Court was, in these circumstances, justified in coming to the conclusion that the ex-parte judgment and order in the suit for specific performance was liable to be set aside.16. In Bhanu Kumar Jain v Archana Kumar (2005) 1 SCC 787 ), a Bench of three Judges of this Court has held that :“An appeal against an ex parte decree in terms of Section 96(2) of the Code could be filed on the following grounds:(i) the materials on record brought on record in the ex parte proceedings in the suit by the plaintiff would not entail a decree in his favour; and(ii) the suit could not have been posted for ex parte hearing.”A defendant against whom an ex-parte decree is passed has two options: The first is to file an appeal. The second is to file an application under Order IX Rule 13. The defendant can take recourse to both the proceedings simultaneously. The right of appeal is not taken away by filing an application under Order IX Rule 13. But if the appeal is dismissed as a result of which the ex-parte decree merges with the order of the Appellate Court, a petition under Order IX Rule 13 would not be maintainable. When an application under Order IX Rule 13 is dismissed, the remedy of the defendant is under Order XLIII Rule 1. However, once such an appeal is dismissed, the same contention cannot be raised in a first appeal under Section 96. The three Judge bench decision in Bhanu Kumar Jain has been followed by another bench of three Judges in Rabindra Singh v Financial Commissioner, Cooperation, Punjab (2008) 7 SCC 663 ) and by a two Judge bench in Mahesh Yadav v Rajeshwar Singh (2009) 2 SCC 205 ). In the present case, the original defendant chose a remedy of first appeal under Section 96 and was able to establish before the High Court, adequate grounds for setting aside the judgment and decree.1
### Response:
0
### Explanation:
A defendant against whom andecree is passed has two options: The first is to file an appeal. The second is to file an application under Order IX Rule 13. The defendant can take recourse to both the proceedings simultaneously. The right of appeal is not taken away by filing an application under Order IX Rule 13. But if the appeal is dismissed as a result of which thedecree merges with the order of the Appellate Court, a petition under Order IX Rule 13 would not be maintainable. When an application under Order IX Rule 13 is dismissed, the remedy of the defendant is under Order XLIII Rule 1. However, once such an appeal is dismissed, the same contention cannot be raised in a first appeal under Sectionthe present case, the original defendant chose a remedy of first appeal under Section 96 and was able to establish before the High Court, adequate grounds for setting aside the judgment andas the report of the bailiff indicates, he was unable to find the defendant at the address which was mentioned in the summons. The report of the bailiff does not indicate that the summons were affixed on a conspicuous part of the house, at the address mentioned in the summons. There was a breach of the provisions of Order V Rule 17. When the application for substituted service was filed before the Trial Court under Order V Rule 20, a cryptic order was passed on 2 September 2011. Order V Rule 20 requires the Court to be satisfied either that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason, the summons cannot be served in the ordinary way. Substituted service is an exception to the normal mode of service. The Court must apply its mind to the requirements of Order V Rule 20 and its order must indicate due consideration of the provisions contained in it. Evidently the Trial Court failed to apply its mind to the requirements of Order V Rule 20 and passed a mechanical order. Besides this, as observed by the learned Single Judge of the High Court, the Trial Judge ignored the provisions contained in Chapter III of the Civil Manual issued by the High Court on its appellate side for the guidance of civil courts and officers subordinate to it.
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V. Mekala Vs. M. Malathi | by nearly 100%, in Sarla Dixit the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words actual salary should be read as actual salary less tax). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances. Therefore, taking both the aspects into account, the total amount of compensation under this head is calculated as Rs.22,68,000/- [([pic]10,000/-x 70/100 + 10,000 x 70/100 x 50/100) x 12 x 18] 20. The compensation under the head pain & suffering and mental agony was awarded by the High Court after recording concurrent finding with the award passed by the Tribunal. However, the courts below have not recorded the nature of the permanent disablement sustained by the appellant, while awarding [pic]1,00,000/- under this head which is too meager an amount and is contrary to the judgment of R.D. Hattangadi and Govind Yadav cases (supra). The relevant paragraphs of Govind Yadav case read as under: 25. The compensation awarded by the Tribunal for pain, suffering and trauma caused due to the amputation of leg was meager. It is not in dispute that the appellant had remained in the hospital for a period of over three months. It is not possible for the tribunals and the courts to make a precise assessment of the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the tribunals and the courts should make a broad guess for the purpose of fixing the amount of compensation. 26. Admittedly, at the time of accident, the appellant was a young man of 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be met by awarding him a sum of Rs 1,50,000 in lieu of pain, suffering and trauma caused due to the amputation of leg. Therefore, under this head the amount awarded should be enhanced to [pic]2,00,000/- as the Doctor-PW2 has opined that at the time of walking with support of crutches, the claimant-appellant will be suffering pain permanently. Therefore, under this head it has to be enhanced from [pic]1,00,000/- to [pic]2,00,000/-. 21. The loss of amenity and attendant charges awarded by the courts below at [pic]1,00,000/- is also too meager an amount as the appellant has permanently lost her amenity of both the legs. For the purpose of walking, squatting, running and also studying throughout her life and particularly, at the advanced age, she will be requiring the attendant for giving assistance to attend the natures call and also at the time of sitting or moving around. Therefore, the compensation at this head is required to be enhanced from [pic]1,00,000/- to [pic]2,00,000/- based upon the principle laid down by this court in Govind Yadav case (supra), the relevant paragraph of which reads as under: 27. The compensation awarded by the Tribunal for the loss of amenities was also meagre. It can only be a matter of imagination as to how the appellant will have to live for the rest of his life with one artificial leg. The appellant can be expected to live for at least 50 years. During this period he will not be able to live like a normal human being and will not be able to enjoy life. The prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award him a sum of Rs 1,50,000 for the loss of amenities and enjoyment of life. 22. The amount of compensation awarded under the head of Loss of enjoyment of life and marriage prospects at [pic]2,00,000/- is totally inadequate since her marriage prospect has substantially reduced and on account of permanent disablement she will be deprived of enjoyment of life. Therefore, it would be just and proper to enhance the compensation from [pic]2,00,000/- to [pic]3,00,000/-. In so far as, purchase of crutches periodically, it would be just and proper to award a sum of [pic]50,000/-. 23. Further, the accident had taken place on 11.4.2005 and the claimant- appellant, since then has been fighting for justice, first, in the Motor Accident Claim Tribunal, then the High Court and finally before us. Therefore, we consider that she is rightfully entitled to the cost of litigation as per the principle laid down by this Court in the case of Balram Prasad v. Kunal Saha & Ors. [(2014) 1 SCC 384] Therefore, we award a sum of [pic]25000/- under the head of cost of litigation. 24. Thus, the claimant-appellant in this appeal is entitled to a total amount of [pic]30,93,000/- as compensation with an interest @ 9% per annum based on the principle laid down by this Court in Municipal Corporation of Delhi, Delhi v. Uphaar Tragedy Victims Association & Ors. [(2011) 14 SCC 481] from the date of filing of the application till the date of payment. | 1[ds]11. The first question is required to be answered in favour of the claimant-appellant for the following reasons :-Having regard to the nature of following injuries sustained by the appellant in the accident which is an undisputed fact :-Right lower limb: Hypertrophic scar extending from distal thigh to distal 2/3rd of right leg circumferentiallyDecreased sensation over the M/3rd of Right legLeft leg: Hypertrophic scar over middle 3rd to distal 3rd of left leg and with patchy areas decreased sensation over the scarMuscle wasting of both the legs presentRight Ankle: Equinous deformity of Right ankle of 1st present. Fixed Flexim deformity of II Joints of toes about 10th present16. Further, having regard to the undisputed fact that there has been inflation of money in the country since the occurrence of the accident, the same has to be taken into account by the Tribunal and Appellate Court while awarding compensation to the claimant-appellant as per the principle laid down by this court in the case of Govind Yadav which has reiterated the position of Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422] case, the relevant paragraph of which reads as under: 46. In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration19. Therefore, in the light of the principles laid down in the aforesaid case, it would be just and proper for this Court, and keeping in mind her past results we take [pic]10,000/- as her monthly notional income for computation of just and reasonable compensation under the head of loss of income. Further, the High Court has failed to take into consideration the future prospects of income based on the principles laid down by this Court in catena of cases referred to supra. Therefore, the appellant is justified in seeking for re-enhancement under this head as well and we hold that the claimant-appellant is entitled to 50% increase under this head as per the principle laid down by this Court in the case of Santosh Devi (supra).20. The compensation under the head pain & suffering and mental agony was awarded by the High Court after recording concurrent finding with the award passed by the Tribunal. However, the courts below have not recorded the nature of the permanent disablement sustained by the appellant, while awarding [pic]1,00,000/- under this head which is too meager an amount and is contrary to the judgment of R.D. Hattangadi and Govind Yadav cases (supra).22. The amount of compensation awarded under the head of Loss of enjoyment of life and marriage prospects at [pic]2,00,000/- is totally inadequate since her marriage prospect has substantially reduced and on account of permanent disablement she will be deprived of enjoyment of life. Therefore, it would be just and proper to enhance the compensation from [pic]2,00,000/- to [pic]3,00,000/-. In so far as, purchase of crutches periodically, it would be just and proper to award a sum of [pic]50,000/-23. Further, the accident had taken place on 11.4.2005 and the claimant- appellant, since then has been fighting for justice, first, in the Motor Accident Claim Tribunal, then the High Court and finally before us. Therefore, we consider that she is rightfully entitled to the cost of litigation as per the principle laid down by this Court in the case of Balram Prasad v. Kunal Saha & Ors. [(2014) 1 SCC 384] Therefore, we award a sum of [pic]25000/- under the head of cost of litigation | 1 | 5,393 | 758 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
by nearly 100%, in Sarla Dixit the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words actual salary should be read as actual salary less tax). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances. Therefore, taking both the aspects into account, the total amount of compensation under this head is calculated as Rs.22,68,000/- [([pic]10,000/-x 70/100 + 10,000 x 70/100 x 50/100) x 12 x 18] 20. The compensation under the head pain & suffering and mental agony was awarded by the High Court after recording concurrent finding with the award passed by the Tribunal. However, the courts below have not recorded the nature of the permanent disablement sustained by the appellant, while awarding [pic]1,00,000/- under this head which is too meager an amount and is contrary to the judgment of R.D. Hattangadi and Govind Yadav cases (supra). The relevant paragraphs of Govind Yadav case read as under: 25. The compensation awarded by the Tribunal for pain, suffering and trauma caused due to the amputation of leg was meager. It is not in dispute that the appellant had remained in the hospital for a period of over three months. It is not possible for the tribunals and the courts to make a precise assessment of the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the tribunals and the courts should make a broad guess for the purpose of fixing the amount of compensation. 26. Admittedly, at the time of accident, the appellant was a young man of 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be met by awarding him a sum of Rs 1,50,000 in lieu of pain, suffering and trauma caused due to the amputation of leg. Therefore, under this head the amount awarded should be enhanced to [pic]2,00,000/- as the Doctor-PW2 has opined that at the time of walking with support of crutches, the claimant-appellant will be suffering pain permanently. Therefore, under this head it has to be enhanced from [pic]1,00,000/- to [pic]2,00,000/-. 21. The loss of amenity and attendant charges awarded by the courts below at [pic]1,00,000/- is also too meager an amount as the appellant has permanently lost her amenity of both the legs. For the purpose of walking, squatting, running and also studying throughout her life and particularly, at the advanced age, she will be requiring the attendant for giving assistance to attend the natures call and also at the time of sitting or moving around. Therefore, the compensation at this head is required to be enhanced from [pic]1,00,000/- to [pic]2,00,000/- based upon the principle laid down by this court in Govind Yadav case (supra), the relevant paragraph of which reads as under: 27. The compensation awarded by the Tribunal for the loss of amenities was also meagre. It can only be a matter of imagination as to how the appellant will have to live for the rest of his life with one artificial leg. The appellant can be expected to live for at least 50 years. During this period he will not be able to live like a normal human being and will not be able to enjoy life. The prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award him a sum of Rs 1,50,000 for the loss of amenities and enjoyment of life. 22. The amount of compensation awarded under the head of Loss of enjoyment of life and marriage prospects at [pic]2,00,000/- is totally inadequate since her marriage prospect has substantially reduced and on account of permanent disablement she will be deprived of enjoyment of life. Therefore, it would be just and proper to enhance the compensation from [pic]2,00,000/- to [pic]3,00,000/-. In so far as, purchase of crutches periodically, it would be just and proper to award a sum of [pic]50,000/-. 23. Further, the accident had taken place on 11.4.2005 and the claimant- appellant, since then has been fighting for justice, first, in the Motor Accident Claim Tribunal, then the High Court and finally before us. Therefore, we consider that she is rightfully entitled to the cost of litigation as per the principle laid down by this Court in the case of Balram Prasad v. Kunal Saha & Ors. [(2014) 1 SCC 384] Therefore, we award a sum of [pic]25000/- under the head of cost of litigation. 24. Thus, the claimant-appellant in this appeal is entitled to a total amount of [pic]30,93,000/- as compensation with an interest @ 9% per annum based on the principle laid down by this Court in Municipal Corporation of Delhi, Delhi v. Uphaar Tragedy Victims Association & Ors. [(2011) 14 SCC 481] from the date of filing of the application till the date of payment.
### Response:
1
### Explanation:
11. The first question is required to be answered in favour of the claimant-appellant for the following reasons :-Having regard to the nature of following injuries sustained by the appellant in the accident which is an undisputed fact :-Right lower limb: Hypertrophic scar extending from distal thigh to distal 2/3rd of right leg circumferentiallyDecreased sensation over the M/3rd of Right legLeft leg: Hypertrophic scar over middle 3rd to distal 3rd of left leg and with patchy areas decreased sensation over the scarMuscle wasting of both the legs presentRight Ankle: Equinous deformity of Right ankle of 1st present. Fixed Flexim deformity of II Joints of toes about 10th present16. Further, having regard to the undisputed fact that there has been inflation of money in the country since the occurrence of the accident, the same has to be taken into account by the Tribunal and Appellate Court while awarding compensation to the claimant-appellant as per the principle laid down by this court in the case of Govind Yadav which has reiterated the position of Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422] case, the relevant paragraph of which reads as under: 46. In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration19. Therefore, in the light of the principles laid down in the aforesaid case, it would be just and proper for this Court, and keeping in mind her past results we take [pic]10,000/- as her monthly notional income for computation of just and reasonable compensation under the head of loss of income. Further, the High Court has failed to take into consideration the future prospects of income based on the principles laid down by this Court in catena of cases referred to supra. Therefore, the appellant is justified in seeking for re-enhancement under this head as well and we hold that the claimant-appellant is entitled to 50% increase under this head as per the principle laid down by this Court in the case of Santosh Devi (supra).20. The compensation under the head pain & suffering and mental agony was awarded by the High Court after recording concurrent finding with the award passed by the Tribunal. However, the courts below have not recorded the nature of the permanent disablement sustained by the appellant, while awarding [pic]1,00,000/- under this head which is too meager an amount and is contrary to the judgment of R.D. Hattangadi and Govind Yadav cases (supra).22. The amount of compensation awarded under the head of Loss of enjoyment of life and marriage prospects at [pic]2,00,000/- is totally inadequate since her marriage prospect has substantially reduced and on account of permanent disablement she will be deprived of enjoyment of life. Therefore, it would be just and proper to enhance the compensation from [pic]2,00,000/- to [pic]3,00,000/-. In so far as, purchase of crutches periodically, it would be just and proper to award a sum of [pic]50,000/-23. Further, the accident had taken place on 11.4.2005 and the claimant- appellant, since then has been fighting for justice, first, in the Motor Accident Claim Tribunal, then the High Court and finally before us. Therefore, we consider that she is rightfully entitled to the cost of litigation as per the principle laid down by this Court in the case of Balram Prasad v. Kunal Saha & Ors. [(2014) 1 SCC 384] Therefore, we award a sum of [pic]25000/- under the head of cost of litigation
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The Income Tax Officer, Gorakhpur Vs. Ram Prasad & Others | person to whose business this Act applies." 5. There is no provision in the Act similar to Section 25-A of the Indian Income-tax Act, 1922. 6. The learned Counsel for the appellant contended that in the case of Excess Profit Tax, the tax is levied on the business and not on any individual and therefore what is relevant is the continuation of the business and not the continuity of the identity of the assessee. According to him if the business in question continues as in the case before us, then the fact that the identity of the person who is continuing the business has changed is not relevant. In support of this contention be relied on the language of Section 4 of the Act. It will be noticed that the proviso to that section refers to Section 4 (3) of the Indian Income-tax Act, 1922 and the body of the section itself refers to the assessments in respect of any business to which the Act applies, to be charged, levied and paid on the amount by which the profits during any chargeable accounting period exceeds the standard profits. The word "paid" in the context can only refer to the person. That is a clear indication that the Act contemplates assessment of the tax on a person though on the basis of the profits from a business. This conclusion receives support from Section 5 of the Act which states that the Act is to apply to every business of which any part of the profits made during the chargeable accounting period is chargeable to income-tax under the provisions of sub-cl. (1), sub-clause (2) of cl. (b) of sub-section (1) of Section 4 of the Indian Income-tax Act, 1922 or of clause (c) of that sub-section. No doubt the basis of the assessment is not the receipt of the profits but the accrual, whether it accrued to a resident or non-resident and whether the accrual was within or without British India in the same manner as under the Indian Income-tax Act, 1922. As observed by the High Court of Madras in Commr. of Excess Profits Tax, Madras v. Jivraj Topun and Sons, Madras, (1951) 20 ITR 143 (Mad) :"The point however is put beyond doubt by Section 14, sub-sec. (1) of the Act which provides for assessment of the tax after the return is submitted in pursuance of a notice issued under Section 13 of the Act. It requires that the Excess Profits Tax Officer, after completing the assessment should furnish "a copy of such order (that is the assessment order) to the person on whom the assessment has been made". Sub-section (2) of that section imposes the liability to pay on the person carrying on the business in that period. Under sub-section (3) if the business is carried on jointly during the chargeable accounting period, the assessment should be made upon the persons jointly and in the case of a partnership it should be in the name of partnership. Under sub-section (4) if a person could be assessed either solely or jointly with other person or persons, in case of his death, the assessment may be made on the legal representative either solely, or jointly with the other person or persons. The provisions of this section therefore place the matter beyond doubt that the assessment of the tax is on the person in the same manner as under the Income-tax Act. No doubt under the Income-tax Act the computation of the tax is on the basis of the income derived by a person from various sources, while under the Excess Profits Tax Act it is on the profits of a business of the person." 7. We are in agreement with these observations. Consequently we are unable to uphold the contention that so long as the business continues, the change of the person who carries on the business is immaterial. 8. Next Mr. B. Sen, learned Counsel for the appellant sought to seek assistance from Section 44 of the Indian Income-tax Act, 1922 which section is one of the sections mentioned in Section 21 of the Act Section 44 of the Indian Income-tax Act, 1922 reads thus:"Where any business, profession or vocation carried on by a firm or association of persons has been discontinued or where an association of persons is dissolved, every person who was at the time of such discontinuance or dissolution a partner of such firm or a member of such association shall, in respect of the income, profits and gains of the firm or association, be jointly and severally liable to assessment under Chapter IV and for the amount of tax payable and all the provisions of Chapter IV shall, so far as may be, apply to any such assessment." 9. This provision applies only to firms and associations of persons. Hindu undivided family is neither a firm nor an association of persons. It is a separate entity by itself. That is made clear by Section 3 of the Indian Income-tax Act, 1922 which classifies the assessees under the heads "individuals", "Hindu undivided families", "companies"; "local authorities", "firms" and "other associations of persons"...If Hindu undivided family is to be considered as an association of persons, there was no point in making separate provision for the assessment of Hindu undivided family. This conclusion is strengthened by Section 25-A of the Indian Income-tax Act, 1922 which provides for the assessment of Hindu undivided family after its partition. 10.For whatever reason it may be, the legislature did not incude in Section 21 of the Act Section 25-A of the Indian Income-tax Act, 1922 nor did it make any similar provision in the Act. That being so, we agree with the High Court that the impugned notices were invalid. The same view was taken by the Madras High Court in Jivraj Topuns case, (1951) 20 ITR 143 (Mad) (supra) and the Allahabad High Court in Commr. of Income-tax, U. P. v. Neekelal Jainarain, 61 ITR 704 = (AIR 1966 All 338 ). | 0[ds]7. We are in agreement with these observations. Consequently we are unable to uphold the contention that so long as the business continues, the change of the person who carries on the business is immaterial8. Next Mr. B. Sen, learned Counsel for the appellant sought to seek assistance from Section 44 of the Indian Income-tax Act, 1922 which section is one of the sections mentioned in Section 21 of the Act Section 44 of the Indian Income-tax Act, 1922 reads thus:"Where any business, profession or vocation carried on by a firm or association of persons has been discontinued or where an association of persons is dissolved, every person who was at the time of such discontinuance or dissolution a partner of such firm or a member of such association shall, in respect of the income, profits and gains of the firm or association, be jointly and severally liable to assessment under Chapter IV and for the amount of tax payable and all the provisions of Chapter IV shall, so far as may be, apply to any such assessment."9. This provision applies only to firms and associations of persons. Hindu undivided family is neither a firm nor an association of persons. It is a separate entity by itself. That is made clear by Section 3 of the Indian Income-tax Act, 1922 which classifies the assessees under the heads "individuals", "Hindu undivided families", "companies"; "local authorities", "firms" and "other associations of persons"...If Hindu undivided family is to be considered as an association of persons, there was no point in making separate provision for the assessment of Hindu undivided family. This conclusion is strengthened by Section 25-A of the Indian Income-tax Act, 1922 which provides for the assessment of Hindu undivided family after its partition. | 0 | 2,616 | 342 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
person to whose business this Act applies." 5. There is no provision in the Act similar to Section 25-A of the Indian Income-tax Act, 1922. 6. The learned Counsel for the appellant contended that in the case of Excess Profit Tax, the tax is levied on the business and not on any individual and therefore what is relevant is the continuation of the business and not the continuity of the identity of the assessee. According to him if the business in question continues as in the case before us, then the fact that the identity of the person who is continuing the business has changed is not relevant. In support of this contention be relied on the language of Section 4 of the Act. It will be noticed that the proviso to that section refers to Section 4 (3) of the Indian Income-tax Act, 1922 and the body of the section itself refers to the assessments in respect of any business to which the Act applies, to be charged, levied and paid on the amount by which the profits during any chargeable accounting period exceeds the standard profits. The word "paid" in the context can only refer to the person. That is a clear indication that the Act contemplates assessment of the tax on a person though on the basis of the profits from a business. This conclusion receives support from Section 5 of the Act which states that the Act is to apply to every business of which any part of the profits made during the chargeable accounting period is chargeable to income-tax under the provisions of sub-cl. (1), sub-clause (2) of cl. (b) of sub-section (1) of Section 4 of the Indian Income-tax Act, 1922 or of clause (c) of that sub-section. No doubt the basis of the assessment is not the receipt of the profits but the accrual, whether it accrued to a resident or non-resident and whether the accrual was within or without British India in the same manner as under the Indian Income-tax Act, 1922. As observed by the High Court of Madras in Commr. of Excess Profits Tax, Madras v. Jivraj Topun and Sons, Madras, (1951) 20 ITR 143 (Mad) :"The point however is put beyond doubt by Section 14, sub-sec. (1) of the Act which provides for assessment of the tax after the return is submitted in pursuance of a notice issued under Section 13 of the Act. It requires that the Excess Profits Tax Officer, after completing the assessment should furnish "a copy of such order (that is the assessment order) to the person on whom the assessment has been made". Sub-section (2) of that section imposes the liability to pay on the person carrying on the business in that period. Under sub-section (3) if the business is carried on jointly during the chargeable accounting period, the assessment should be made upon the persons jointly and in the case of a partnership it should be in the name of partnership. Under sub-section (4) if a person could be assessed either solely or jointly with other person or persons, in case of his death, the assessment may be made on the legal representative either solely, or jointly with the other person or persons. The provisions of this section therefore place the matter beyond doubt that the assessment of the tax is on the person in the same manner as under the Income-tax Act. No doubt under the Income-tax Act the computation of the tax is on the basis of the income derived by a person from various sources, while under the Excess Profits Tax Act it is on the profits of a business of the person." 7. We are in agreement with these observations. Consequently we are unable to uphold the contention that so long as the business continues, the change of the person who carries on the business is immaterial. 8. Next Mr. B. Sen, learned Counsel for the appellant sought to seek assistance from Section 44 of the Indian Income-tax Act, 1922 which section is one of the sections mentioned in Section 21 of the Act Section 44 of the Indian Income-tax Act, 1922 reads thus:"Where any business, profession or vocation carried on by a firm or association of persons has been discontinued or where an association of persons is dissolved, every person who was at the time of such discontinuance or dissolution a partner of such firm or a member of such association shall, in respect of the income, profits and gains of the firm or association, be jointly and severally liable to assessment under Chapter IV and for the amount of tax payable and all the provisions of Chapter IV shall, so far as may be, apply to any such assessment." 9. This provision applies only to firms and associations of persons. Hindu undivided family is neither a firm nor an association of persons. It is a separate entity by itself. That is made clear by Section 3 of the Indian Income-tax Act, 1922 which classifies the assessees under the heads "individuals", "Hindu undivided families", "companies"; "local authorities", "firms" and "other associations of persons"...If Hindu undivided family is to be considered as an association of persons, there was no point in making separate provision for the assessment of Hindu undivided family. This conclusion is strengthened by Section 25-A of the Indian Income-tax Act, 1922 which provides for the assessment of Hindu undivided family after its partition. 10.For whatever reason it may be, the legislature did not incude in Section 21 of the Act Section 25-A of the Indian Income-tax Act, 1922 nor did it make any similar provision in the Act. That being so, we agree with the High Court that the impugned notices were invalid. The same view was taken by the Madras High Court in Jivraj Topuns case, (1951) 20 ITR 143 (Mad) (supra) and the Allahabad High Court in Commr. of Income-tax, U. P. v. Neekelal Jainarain, 61 ITR 704 = (AIR 1966 All 338 ).
### Response:
0
### Explanation:
7. We are in agreement with these observations. Consequently we are unable to uphold the contention that so long as the business continues, the change of the person who carries on the business is immaterial8. Next Mr. B. Sen, learned Counsel for the appellant sought to seek assistance from Section 44 of the Indian Income-tax Act, 1922 which section is one of the sections mentioned in Section 21 of the Act Section 44 of the Indian Income-tax Act, 1922 reads thus:"Where any business, profession or vocation carried on by a firm or association of persons has been discontinued or where an association of persons is dissolved, every person who was at the time of such discontinuance or dissolution a partner of such firm or a member of such association shall, in respect of the income, profits and gains of the firm or association, be jointly and severally liable to assessment under Chapter IV and for the amount of tax payable and all the provisions of Chapter IV shall, so far as may be, apply to any such assessment."9. This provision applies only to firms and associations of persons. Hindu undivided family is neither a firm nor an association of persons. It is a separate entity by itself. That is made clear by Section 3 of the Indian Income-tax Act, 1922 which classifies the assessees under the heads "individuals", "Hindu undivided families", "companies"; "local authorities", "firms" and "other associations of persons"...If Hindu undivided family is to be considered as an association of persons, there was no point in making separate provision for the assessment of Hindu undivided family. This conclusion is strengthened by Section 25-A of the Indian Income-tax Act, 1922 which provides for the assessment of Hindu undivided family after its partition.
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National Engineering Industries Ltd Vs. Hanuman | terminated when the contingency happens. 7. Reliance in this connection was placed on certain cases and we shall refer to them now. In Chandri Bai Uma v. Elephant Oil Mills Ltd., 1951-1 Lab LJ 370 (LATI-Bom) the standing order provided that a workman would lose his appointment unless he returned within 8 days of the expiry of the leave and gave explanation to the satisfaction of the authority granting leave of his inability to return before the expiry of leave. The Labour Appellate Tribunal held in that case that where a standing order provided for automatic termination of service, Section 23 of the Industrial Disputes (Appellate Tribunal) Act, 1950 would not apply. That decision in our view lays down the correct law. Section 33 of the Act corresponds to Section 23 of the Industrial Disputes (Appellate Tribunal) Act, 1950.The position therefore would be the same under Section 33 of the Act. Where therefore a workmans service terminates automatically under the standing order Section 33 would not apply and so an application under Section 33-A would not be maintainable, as there is no question in such a case of the contravention of Section 33 of the Act.But the words in the standing order, in that case were slightly different, for they specifically provided that the workman would lose his appointment, and it is argued on behalf of the respondent that that case would not in the circumstances apply. But as we have already held there is no difference between saying that the workmans lien would stand, terminated "as" in the present case and that "the workman would lose his appointment "as in that case. 8. The next case to which reference may be made is Raghunath Enamels Ltd v. Sri Surendra Singh, 1953-1 Lab LJ 261 (LATI-Luck). In that case the Labour Appellate Tribunal distinguished its earlier decision in Chandrabai Umas case, 1951-1 Lab LJ 370 (LATI- Bom) because the words in that case were that if a workman remained absent for a certain period he would lose his lien and not that he would lose his appointment. The Labour Appellate Tribunal seems to have held that losing lien is different from losing appointment. With respect it seems difficult for us to appreciate what difference there is, for, we think that once a workman loses his lien on his appointment he loses his appointment. We cannot therefore accept the distinction which was made by the Labour Appellate Tribunal in that case. 9. In Sahajan v. A Firpo Co. Ltd. 1953-2 Lab LJ 686 (LATI-Cal) the words of the standing order provided that "if the workman remains absent beyond the period of leave originally granted or subsequently extended he shall lose Lien on his appointment." In that case the Labour Appellate Tribunal followed the case of Chandrabai Uma and not the case of Raghunath Enamels Ltd., though one of the members of the Tribunal was common to both. This case is on all fours with present case and was in our opinion rightly decided. 10. The next case to which reference may be made is Yeshwant Sitaram Rane v. Goodlass Wall Limited 1954-1 Lab LJ 505 (LATI-Bom). That case was decided on its peculiar facts which have no parallel in the present case. There the employee had applied for such leave which was due to him. But the employer did not grant the leave due and treated the service as automatically terminated as the employee had not joined within 15 days from the expiry of the original leave. It was on these facts that the Labour Appellate Tribunal interfered. That case therefore stands on its own facts. 11. The next case to which reference may be made is Kanaksingh Ramsingh v. Narmada Valley Chemical Industries Ltd., 1956-1 Lab LJ 377 (Ind. Tri. Bom.). There also the words of the standing order were different and it provided for placing the workman on the list of Badlis if he appeared within 15 days of the expiry of his leave. That case therefore has no application to the facts of the present case. 12. The last case to which reference may be made is Buckingham and Carnatic Company Limited v. Venkatayya, 1963-2 Lab LJ 638 = 1964 - 4 SCR 265 = (AIR 1964 SC 1272 ). That case arose under the Employees State Insurance Act (34 of 1948). The words of the standing order there were specific and laid down that "any employee who absents himself for eight consecutive working days without leave shall be deemed to have left the companys service without notice thereby terminating his contract of service. In the face of those words Section 73 of the Employees State Insurance Act was held inapplicable. Though the case is not on all fours with the present case because it deals with a provision of another law, the reasoning in that case would apply in the present case. We are therefore of opinion that Hanuman respondents service stood automatically terminated for he did not appear for eight days after the expiry of his leave on April 9, 1965. In this view of the matter Section 33 cannot be said to have been contravened and Section 33-A will not apply. 13. It is however urged that some difference is made by the existence of another provision in the Standing Orders. In Appendix D of the Standing Orders one of the Major Misdemeanours is "absence without permission exceeding ten consecutive days." That in our opinion is an alternative provision and the appellant in this case was free to resort to any one of the provisions, unless it is shown that resort to one particular provision was due to male fide. This is not the case of the respondent here. In the circumstances the earlier standing order in Section G must be held to have full force and effect and Hanuman respondents service stood automatically terminated when he did not appear within 8 days of the expiry of his leave which was on April 9, 1965. | 1[ds]5. Ordinarily this Court is slow to interfere with findings of fact recorded byl tribunals in an appeal under Article 136 of the Constitution. But this Court does so if it is shown ex facie, that the finding recorded is perverse.It does appear to us in this case that the finding that Hanuman continued ill from April 10 to April 19 1965 is perverse. It is true that Hanuman stated that he had sent the certificate through Prahlad on April 10 1965. In support of his statement he examined Prahlad Singh and Dr. Girraj Prasad who wase of the Dispensary at the time when evidence was given in l966. Prahlad Singh did not support Hanuman and was treated as hostile. Prahlad Singh had given an affidavit in favour of Hanuman but in his statement before the labour court he said that he did not remember the date when Hanuman fell ill and did not know on what date Hanuman had given him the certificate. It may be mentioned that the first medical certificate was sent through Prahlad Singh on April 3, 1965, but Prahlad Singhs evidence does not prove that he gave the second certificate to the foreman of the appellant on April 10 1965. As for Dr. Girraj Prasad he seems to have stated in hisf that Hanuman was under his treatment from April, 3 to April 19, 1965 and was given a fitness certificate to join from April 20, 1965. Inn however, he admitted that he had not issued the three certificates dated April 3, 10 and 19, 1965 and that he had not examined Hanuman on these three dates. He further stated that he had given his evidence on the basis of the record of the Dispensary. But it seems that the record of the dispensary was not before him when he gave the evidence for he admitted that he had not been shown either the original certificate or the copies thereof. His evidence therefore was worthless in so far as corroboration of Hanumans statement was concerned. The doctor who actually gave the certificate was never examined and no reason was given why he could not be examined. It is also remarkable that the fitness certificate which according to Hanuman was taken by him when he appeared on April 20, 1965 to join his duty has not been produced. It is not Hanumans case that he had given that fitness certificate to the appellant and the appellant had suppressed that also. In the circumstances it seems to us that the finding of the labour court that Hanuman continued ill from April 10 to April 19, 1965 is perverse for both the witnesses produced by Hanuman in support of his case had not corroborated his statement. There is nothing on the record besides the mere statement of Hanuman to prove that he continued ill from April 10 to April 19, 1965. Even the fitness certificate was never produced before the labour court and it seems that the record of the dispensary was also never produced before the labour court; further Dr. Girraj Prasad though be stated that be was giving evidence on the basis of the record, did not refer either to the original certificates or the copies thereof before giving his evidence.In these circumstances we cannot accept the finding of the labour court to the effect that Hanuman continued ill from April 10 to April, 19,1965 in the face of the appellants denial that no certificate was sent to the appellant on April 10, 1965There is dispute between the parties as to what these words in the standing order, which evidences the conditions of service, mean. So far as Hanuman is concerned he admitted in his statement inn that under the standing order if a workman remained absent from duty for more than eight days, his service stood terminated. This shows what the workman understood the standing order in question to mean. The standing order is inartistically worded, but it seems to us clear that when "the standing order provides that a workman will lose his lien on his appointment in case he does not join his duty within 8 days of the expiry of his leave, it obviously means that his services are automatically terminated on the happening of the contingency. We do not understand how a workman who has lost his lien on his appointment can continue in service thereafter. Where therefore a standing order provides that a workman would lose his lien on his appointment, if he does not join his duty within certain time after his leave expires, it can only mean that his service stands automatically terminated when the contingency happens7. Reliance in this connection was placed on certain cases and we shall refer to them now. In Chandri Bai Uma v. Elephant Oil Mills Ltd.,1 Lab LJ 370) the standing order provided that a workman would lose his appointment unless he returned within 8 days of the expiry of the leave and gave explanation to the satisfaction of the authority granting leave of his inability to return before the expiry of leave. The Labour Appellate Tribunal held in that case that where a standing order provided for automatic termination of service, Section 23 of the Industrial Disputes (Appellate Tribunal) Act, 1950 would not apply. That decision in our view lays down the correct law. Section 33 of the Act corresponds to Section 23 of the Industrial Disputes (Appellate Tribunal) Act, 1950.The position therefore would be the same under Section 33 of the Act. Where therefore a workmans service terminates automatically under the standing order Section 33 would not apply and so an application under SectionA would not be maintainable, as there is no question in such a case of the contravention of Section 33 of the Act.But the words in the standing order, in that case were slightly different, for they specifically provided that the workman would lose his appointment, and it is argued on behalf of the respondent that that case would not in the circumstances apply. But as we have already held there is no difference between saying that the workmans lien would stand, terminated "as" in the present case and that "the workman would lose his appointment "as in that case8. The next case to which reference may be made is Raghunath Enamels Ltd v. Sri Surendra Singh,1 Lab LJ 261. In that case the Labour Appellate Tribunal distinguished its earlier decision in Chandrabai Umas case,1 Lab LJ 370(LATIBom) because the words in that case were that if a workman remained absent for a certain period he would lose his lien and not that he would lose his appointment. The Labour Appellate Tribunal seems to have held that losing lien is different from losing appointment. With respect it seems difficult for us to appreciate what difference there is, for, we think that once a workman loses his lien on his appointment he loses his appointment. We cannot therefore accept the distinction which was made by the Labour Appellate Tribunal in that case9. In Sahajan v. A Firpo Co. Ltd.2 Lab LJ 686) the words of the standing order provided that "if the workman remains absent beyond the period of leave originally granted or subsequently extended he shall lose Lien on his appointment." In that case the Labour Appellate Tribunal followed the case of Chandrabai Uma and not the case of Raghunath Enamels Ltd., though one of the members of the Tribunal was common to both. This case is on all fours with present case and was in our opinion rightly decided10. The next case to which reference may be made is Yeshwant Sitaram Rane v. Goodlass Wall Limited1 Lab LJ 505. That case was decided on its peculiar facts which have no parallel in the present case. There the employee had applied for such leave which was due to him. But the employer did not grant the leave due and treated the service as automatically terminated as the employee had not joined within 15 days from the expiry of the original leave. It was on these facts that the Labour Appellate Tribunal interfered. That case therefore stands on its own facts12. The last case to which reference may be made is Buckingham and Carnatic Company Limited v. Venkatayya,2 Lab LJ 638 = 19644 SCR 265 = (AIR 1964 SC 1272 ). That case arose under the Employees State Insurance Act (34 of 1948). The words of the standing order there were specific and laid down that "any employee who absents himself for eight consecutive working days without leave shall be deemed to have left the companys service without notice thereby terminating his contract of service. In the face of those words Section 73 of the Employees State Insurance Act was held inapplicable. Though the case is not on all fours with the present case because it deals with a provision of another law, the reasoning in that case would apply in the present case. We are therefore of opinion that Hanuman respondents service stood automatically terminated for he did not appear for eight days after the expiry of his leave on April 9, 1965. In this view of the matter Section 33 cannot be said to have been contravened and SectionA will not apply13. It is however urged that some difference is made by the existence of another provision in the Standing Orders.In Appendix D of the Standing Orders one of the Major Misdemeanours is "absence without permission exceeding ten consecutive days." That in our opinion is an alternative provision and the appellant in this case was free to resort to any one of the provisions, unless it is shown that resort to one particular provision was due to male fide. This is not the case of the respondent here. In the circumstances the earlier standing order in Section G must be held to have full force and effect and Hanuman respondents service stood automatically terminated when he did not appear within 8 days of the expiry of his leave which was on April 9, 1965. | 1 | 2,586 | 1,801 | ### Instruction:
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terminated when the contingency happens. 7. Reliance in this connection was placed on certain cases and we shall refer to them now. In Chandri Bai Uma v. Elephant Oil Mills Ltd., 1951-1 Lab LJ 370 (LATI-Bom) the standing order provided that a workman would lose his appointment unless he returned within 8 days of the expiry of the leave and gave explanation to the satisfaction of the authority granting leave of his inability to return before the expiry of leave. The Labour Appellate Tribunal held in that case that where a standing order provided for automatic termination of service, Section 23 of the Industrial Disputes (Appellate Tribunal) Act, 1950 would not apply. That decision in our view lays down the correct law. Section 33 of the Act corresponds to Section 23 of the Industrial Disputes (Appellate Tribunal) Act, 1950.The position therefore would be the same under Section 33 of the Act. Where therefore a workmans service terminates automatically under the standing order Section 33 would not apply and so an application under Section 33-A would not be maintainable, as there is no question in such a case of the contravention of Section 33 of the Act.But the words in the standing order, in that case were slightly different, for they specifically provided that the workman would lose his appointment, and it is argued on behalf of the respondent that that case would not in the circumstances apply. But as we have already held there is no difference between saying that the workmans lien would stand, terminated "as" in the present case and that "the workman would lose his appointment "as in that case. 8. The next case to which reference may be made is Raghunath Enamels Ltd v. Sri Surendra Singh, 1953-1 Lab LJ 261 (LATI-Luck). In that case the Labour Appellate Tribunal distinguished its earlier decision in Chandrabai Umas case, 1951-1 Lab LJ 370 (LATI- Bom) because the words in that case were that if a workman remained absent for a certain period he would lose his lien and not that he would lose his appointment. The Labour Appellate Tribunal seems to have held that losing lien is different from losing appointment. With respect it seems difficult for us to appreciate what difference there is, for, we think that once a workman loses his lien on his appointment he loses his appointment. We cannot therefore accept the distinction which was made by the Labour Appellate Tribunal in that case. 9. In Sahajan v. A Firpo Co. Ltd. 1953-2 Lab LJ 686 (LATI-Cal) the words of the standing order provided that "if the workman remains absent beyond the period of leave originally granted or subsequently extended he shall lose Lien on his appointment." In that case the Labour Appellate Tribunal followed the case of Chandrabai Uma and not the case of Raghunath Enamels Ltd., though one of the members of the Tribunal was common to both. This case is on all fours with present case and was in our opinion rightly decided. 10. The next case to which reference may be made is Yeshwant Sitaram Rane v. Goodlass Wall Limited 1954-1 Lab LJ 505 (LATI-Bom). That case was decided on its peculiar facts which have no parallel in the present case. There the employee had applied for such leave which was due to him. But the employer did not grant the leave due and treated the service as automatically terminated as the employee had not joined within 15 days from the expiry of the original leave. It was on these facts that the Labour Appellate Tribunal interfered. That case therefore stands on its own facts. 11. The next case to which reference may be made is Kanaksingh Ramsingh v. Narmada Valley Chemical Industries Ltd., 1956-1 Lab LJ 377 (Ind. Tri. Bom.). There also the words of the standing order were different and it provided for placing the workman on the list of Badlis if he appeared within 15 days of the expiry of his leave. That case therefore has no application to the facts of the present case. 12. The last case to which reference may be made is Buckingham and Carnatic Company Limited v. Venkatayya, 1963-2 Lab LJ 638 = 1964 - 4 SCR 265 = (AIR 1964 SC 1272 ). That case arose under the Employees State Insurance Act (34 of 1948). The words of the standing order there were specific and laid down that "any employee who absents himself for eight consecutive working days without leave shall be deemed to have left the companys service without notice thereby terminating his contract of service. In the face of those words Section 73 of the Employees State Insurance Act was held inapplicable. Though the case is not on all fours with the present case because it deals with a provision of another law, the reasoning in that case would apply in the present case. We are therefore of opinion that Hanuman respondents service stood automatically terminated for he did not appear for eight days after the expiry of his leave on April 9, 1965. In this view of the matter Section 33 cannot be said to have been contravened and Section 33-A will not apply. 13. It is however urged that some difference is made by the existence of another provision in the Standing Orders. In Appendix D of the Standing Orders one of the Major Misdemeanours is "absence without permission exceeding ten consecutive days." That in our opinion is an alternative provision and the appellant in this case was free to resort to any one of the provisions, unless it is shown that resort to one particular provision was due to male fide. This is not the case of the respondent here. In the circumstances the earlier standing order in Section G must be held to have full force and effect and Hanuman respondents service stood automatically terminated when he did not appear within 8 days of the expiry of his leave which was on April 9, 1965.
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his appointment in case he does not join his duty within 8 days of the expiry of his leave, it obviously means that his services are automatically terminated on the happening of the contingency. We do not understand how a workman who has lost his lien on his appointment can continue in service thereafter. Where therefore a standing order provides that a workman would lose his lien on his appointment, if he does not join his duty within certain time after his leave expires, it can only mean that his service stands automatically terminated when the contingency happens7. Reliance in this connection was placed on certain cases and we shall refer to them now. In Chandri Bai Uma v. Elephant Oil Mills Ltd.,1 Lab LJ 370) the standing order provided that a workman would lose his appointment unless he returned within 8 days of the expiry of the leave and gave explanation to the satisfaction of the authority granting leave of his inability to return before the expiry of leave. The Labour Appellate Tribunal held in that case that where a standing order provided for automatic termination of service, Section 23 of the Industrial Disputes (Appellate Tribunal) Act, 1950 would not apply. That decision in our view lays down the correct law. Section 33 of the Act corresponds to Section 23 of the Industrial Disputes (Appellate Tribunal) Act, 1950.The position therefore would be the same under Section 33 of the Act. Where therefore a workmans service terminates automatically under the standing order Section 33 would not apply and so an application under SectionA would not be maintainable, as there is no question in such a case of the contravention of Section 33 of the Act.But the words in the standing order, in that case were slightly different, for they specifically provided that the workman would lose his appointment, and it is argued on behalf of the respondent that that case would not in the circumstances apply. But as we have already held there is no difference between saying that the workmans lien would stand, terminated "as" in the present case and that "the workman would lose his appointment "as in that case8. The next case to which reference may be made is Raghunath Enamels Ltd v. Sri Surendra Singh,1 Lab LJ 261. In that case the Labour Appellate Tribunal distinguished its earlier decision in Chandrabai Umas case,1 Lab LJ 370(LATIBom) because the words in that case were that if a workman remained absent for a certain period he would lose his lien and not that he would lose his appointment. The Labour Appellate Tribunal seems to have held that losing lien is different from losing appointment. With respect it seems difficult for us to appreciate what difference there is, for, we think that once a workman loses his lien on his appointment he loses his appointment. We cannot therefore accept the distinction which was made by the Labour Appellate Tribunal in that case9. In Sahajan v. A Firpo Co. Ltd.2 Lab LJ 686) the words of the standing order provided that "if the workman remains absent beyond the period of leave originally granted or subsequently extended he shall lose Lien on his appointment." In that case the Labour Appellate Tribunal followed the case of Chandrabai Uma and not the case of Raghunath Enamels Ltd., though one of the members of the Tribunal was common to both. This case is on all fours with present case and was in our opinion rightly decided10. The next case to which reference may be made is Yeshwant Sitaram Rane v. Goodlass Wall Limited1 Lab LJ 505. That case was decided on its peculiar facts which have no parallel in the present case. There the employee had applied for such leave which was due to him. But the employer did not grant the leave due and treated the service as automatically terminated as the employee had not joined within 15 days from the expiry of the original leave. It was on these facts that the Labour Appellate Tribunal interfered. That case therefore stands on its own facts12. The last case to which reference may be made is Buckingham and Carnatic Company Limited v. Venkatayya,2 Lab LJ 638 = 19644 SCR 265 = (AIR 1964 SC 1272 ). That case arose under the Employees State Insurance Act (34 of 1948). The words of the standing order there were specific and laid down that "any employee who absents himself for eight consecutive working days without leave shall be deemed to have left the companys service without notice thereby terminating his contract of service. In the face of those words Section 73 of the Employees State Insurance Act was held inapplicable. Though the case is not on all fours with the present case because it deals with a provision of another law, the reasoning in that case would apply in the present case. We are therefore of opinion that Hanuman respondents service stood automatically terminated for he did not appear for eight days after the expiry of his leave on April 9, 1965. In this view of the matter Section 33 cannot be said to have been contravened and SectionA will not apply13. It is however urged that some difference is made by the existence of another provision in the Standing Orders.In Appendix D of the Standing Orders one of the Major Misdemeanours is "absence without permission exceeding ten consecutive days." That in our opinion is an alternative provision and the appellant in this case was free to resort to any one of the provisions, unless it is shown that resort to one particular provision was due to male fide. This is not the case of the respondent here. In the circumstances the earlier standing order in Section G must be held to have full force and effect and Hanuman respondents service stood automatically terminated when he did not appear within 8 days of the expiry of his leave which was on April 9, 1965.
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Sales Tax Officer XI, Enforcement Branch, Greater Bombay Vs. Poonnamal and Others | BHAGWATI, J. 1. The only question which arises for determination in this appeal by certificate is whether a dissolved firm can be assessed to sales tax in respect of its pre-dissolution transactions. The respondents were at all material times partners in a firm called M/s. Ardhanari Textiles. This firm commenced business in the year 1959 and was dissolved on June 9, 1965. The appellant who is the Sales Tax Officer XI, Enforcement Branch Bombay, issued a notice dated March 4, 1966, to the dissolved firm under section 33 of the Bombay Sales Tax Act, 1959, in respect of the period January 1, 1960, up to September 30, 1965. The respondents thereupon preferred a writ petition in the High Court of Madras challenging the validity of the notice on the ground, inter alia, that since the firm was dissolved it was not competent to the appellant to initiate any proceedings for assessment of the firm. The writ petition was allowed by the High Court relying on an earlier decision given by it in L. V. Veeri Chettiar v. Sales Tax Officer (XI), Enforcement Branch, Greater Bombay [[1970] 26 S.T.C. 579]. The High Court took the view that once a firm was dissolved, there was no provision in the Bombay Sales Tax Act, 1959, for assessing the dissolved firm to sales tax in respect of its prior transactions. The appellant thereupon preferred the present appeal after obtaining a certificate of fitness from the High Court. 2. The question whether a dissolved firm can be assessed to sales tax in respect of its pre-dissolution transactions under the Bombay Sales Tax Act, 1959, came up for consideration before this Court in Murarilal Mahabir Prasad v. Shri B. R. Vad [[1976] 36 S.T.C. 77 (S.C.); [1976] 1 S.C.R. 689]. This Court by a majority held in that case that the scheme of the Bombay Sales Tax Act, 1959, and particularly sections 18 and 19(3) clearly show that, notwithstanding the dissolution of a firm, it can be assessed to sales tax in respect of its pre-dissolution transactions. In view of this decision, the question no longer survives for consideration and we must hold that the appellant was entitled to initiate proceedings for assessment of the firm of M/s. Ardhanari Textile by issuing notice dated March 4, 1966, under section 33 of the Bombay Sales Tax Act, 1959. | 1[ds]This Court by a majority held in that case that the scheme of the Bombay Sales Tax Act, 1959, and particularly sections 18 and 19(3) clearly show that, notwithstanding the dissolution of a firm, it can be assessed to sales tax in respect of itsn transactions. In view of this decision, the question no longer survives for consideration and we must hold that the appellant was entitled to initiate proceedings for assessment of the firm of M/s. Ardhanari Textile by issuing notice dated March 4, 1966, under section 33 of the Bombay Sales Tax Act, 1959. | 1 | 456 | 114 | ### Instruction:
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BHAGWATI, J. 1. The only question which arises for determination in this appeal by certificate is whether a dissolved firm can be assessed to sales tax in respect of its pre-dissolution transactions. The respondents were at all material times partners in a firm called M/s. Ardhanari Textiles. This firm commenced business in the year 1959 and was dissolved on June 9, 1965. The appellant who is the Sales Tax Officer XI, Enforcement Branch Bombay, issued a notice dated March 4, 1966, to the dissolved firm under section 33 of the Bombay Sales Tax Act, 1959, in respect of the period January 1, 1960, up to September 30, 1965. The respondents thereupon preferred a writ petition in the High Court of Madras challenging the validity of the notice on the ground, inter alia, that since the firm was dissolved it was not competent to the appellant to initiate any proceedings for assessment of the firm. The writ petition was allowed by the High Court relying on an earlier decision given by it in L. V. Veeri Chettiar v. Sales Tax Officer (XI), Enforcement Branch, Greater Bombay [[1970] 26 S.T.C. 579]. The High Court took the view that once a firm was dissolved, there was no provision in the Bombay Sales Tax Act, 1959, for assessing the dissolved firm to sales tax in respect of its prior transactions. The appellant thereupon preferred the present appeal after obtaining a certificate of fitness from the High Court. 2. The question whether a dissolved firm can be assessed to sales tax in respect of its pre-dissolution transactions under the Bombay Sales Tax Act, 1959, came up for consideration before this Court in Murarilal Mahabir Prasad v. Shri B. R. Vad [[1976] 36 S.T.C. 77 (S.C.); [1976] 1 S.C.R. 689]. This Court by a majority held in that case that the scheme of the Bombay Sales Tax Act, 1959, and particularly sections 18 and 19(3) clearly show that, notwithstanding the dissolution of a firm, it can be assessed to sales tax in respect of its pre-dissolution transactions. In view of this decision, the question no longer survives for consideration and we must hold that the appellant was entitled to initiate proceedings for assessment of the firm of M/s. Ardhanari Textile by issuing notice dated March 4, 1966, under section 33 of the Bombay Sales Tax Act, 1959.
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This Court by a majority held in that case that the scheme of the Bombay Sales Tax Act, 1959, and particularly sections 18 and 19(3) clearly show that, notwithstanding the dissolution of a firm, it can be assessed to sales tax in respect of itsn transactions. In view of this decision, the question no longer survives for consideration and we must hold that the appellant was entitled to initiate proceedings for assessment of the firm of M/s. Ardhanari Textile by issuing notice dated March 4, 1966, under section 33 of the Bombay Sales Tax Act, 1959.
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SHANTHI Vs. T.D. VISHWANATHAN AND ORS | 1. This appeal is directed against the judgment dated 22.01.2007, passed by the learned Single Judge of the High Court of Judicature at Madras in C.R.P. (NPD) No. 1829 of 2006. By the impugned judgment, the High Court while dismissing the revision petition has confirmed the orders of the Executing Court dated 1.11.2006 in E.A. No. 3570 of 2006 in E.P. No. 249 of 2006 in O.S. No. 649 of 1977. 2. The suit was filed by the plantiffs/respondents for recovery of possession and arrears of rent against the defendant/appellant herein. The appellant was a tenant of the respondents. The property in question is a residential house. The Trial Court, the first Appellate Court and the High Court have concurrently concluded that the plantiff is entitled to get possession of the suit property and arrears of rent. Thus, the suit was decreed against the tenant by such concurring judgments. Thereafter, an execution petition was filed in 2006 for executing the decree. The only question raised by the learned advocate for the appellant in this appeal is that the execution petition filed in the year 2006 is barred by limitation inasmuch as the same was not filed within 12 years from the date of the judgment of the Trial Court, i.e., dated 14.08.1981. 3. In sum and substance, the case of the appellant is that the execution petition ought to have been filed within 12 years from the date of the judgment of the Trial Court without waiting for the decision of the First Appellate Court or the Second Appellate Court. He has also submitted that there is no interim order granted by the First Appellate Court and the Second Appellate Court. There was no hurdle for the respondents to file the execution petition within the prescribed period of limitation after the judgment of the Trial Court. It is submitted by the decree holder that the decree of the Trial Court and the first Appellate Court have merged in the decree of the High Court passed in second appeal. It is further submitted that the order of stay was operating in favour of the judgment debtor/debtor during the pendency of the appeals and hence the judgment debtor continued in possession. 4. It is not in dispute that the execution petition has been filed within time from the date of the judgment of the High Court. The High Court dismissed the second appeal on 30.12.2003. The execution petition was filed in July 2006. Thus, undisputedly, the execution petition was within the period of limitation from the date of the judgment of the High Court. 5. The aforementioned question raised by the learned advocate for the appellant is no more res-integra, inasmuch as the very question is decided by a Three Judge Bench of this Court, in the case of Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC 724 , wherein it was observed that in terms of Article 136, Limitation Act 1963, a decree can be executed when it becomes enforceable. A decree is defined in Section 2(2) CPC, 1908 to mean the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. A decree within the meaning of Section 2(2) of the CPC would be enforceable irrespective of whether it is passed by the Trial Court, the First Appellate Court or the Second Appellate Court. When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intents and purposes, the suit continues. When a higher forum entertains an appeal and passes an order on merit, the doctrine of merger would apply. The doctrine of merger is based on the principles of the propriety in the hierarchy of the justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time. 6. Since the judgment of the Trial Court was affirmed by the First Appellate Court and was further affirmed by the Second Appellate Court, the decree passed by the High Court becomes enforceable in view of the doctrine of merger. | 0[ds]4. It is not in dispute that the execution petition has been filed within time from the date of the judgment of the High Court. The High Court dismissed the second appeal on 30.12.2003. The execution petition was filed in July 2006. Thus, undisputedly, the execution petition was within the period of limitation from the date of the judgment of the High Court5. The aforementioned question raised by the learned advocate for the appellant is no more res-integra, inasmuch as the very question is decided by a Three Judge Bench of this Court, in the case of Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC 724 , wherein it was observed that in terms of Article 136, Limitation Act 1963, a decree can be executed when it becomes enforceable. A decree is defined in Section 2(2) CPC, 1908 to mean the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. A decree within the meaning of Section 2(2) of the CPC would be enforceable irrespective of whether it is passed by the Trial Court, the First Appellate Court or the Second Appellate Court. When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intents and purposes, the suit continues. When a higher forum entertains an appeal and passes an order on merit, the doctrine of merger would apply. The doctrine of merger is based on the principles of the propriety in the hierarchy of the justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time6. Since the judgment of the Trial Court was affirmed by the First Appellate Court and was further affirmed by the Second Appellate Court, the decree passed by the High Court becomes enforceable in view of the doctrine of merger. | 0 | 814 | 410 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
1. This appeal is directed against the judgment dated 22.01.2007, passed by the learned Single Judge of the High Court of Judicature at Madras in C.R.P. (NPD) No. 1829 of 2006. By the impugned judgment, the High Court while dismissing the revision petition has confirmed the orders of the Executing Court dated 1.11.2006 in E.A. No. 3570 of 2006 in E.P. No. 249 of 2006 in O.S. No. 649 of 1977. 2. The suit was filed by the plantiffs/respondents for recovery of possession and arrears of rent against the defendant/appellant herein. The appellant was a tenant of the respondents. The property in question is a residential house. The Trial Court, the first Appellate Court and the High Court have concurrently concluded that the plantiff is entitled to get possession of the suit property and arrears of rent. Thus, the suit was decreed against the tenant by such concurring judgments. Thereafter, an execution petition was filed in 2006 for executing the decree. The only question raised by the learned advocate for the appellant in this appeal is that the execution petition filed in the year 2006 is barred by limitation inasmuch as the same was not filed within 12 years from the date of the judgment of the Trial Court, i.e., dated 14.08.1981. 3. In sum and substance, the case of the appellant is that the execution petition ought to have been filed within 12 years from the date of the judgment of the Trial Court without waiting for the decision of the First Appellate Court or the Second Appellate Court. He has also submitted that there is no interim order granted by the First Appellate Court and the Second Appellate Court. There was no hurdle for the respondents to file the execution petition within the prescribed period of limitation after the judgment of the Trial Court. It is submitted by the decree holder that the decree of the Trial Court and the first Appellate Court have merged in the decree of the High Court passed in second appeal. It is further submitted that the order of stay was operating in favour of the judgment debtor/debtor during the pendency of the appeals and hence the judgment debtor continued in possession. 4. It is not in dispute that the execution petition has been filed within time from the date of the judgment of the High Court. The High Court dismissed the second appeal on 30.12.2003. The execution petition was filed in July 2006. Thus, undisputedly, the execution petition was within the period of limitation from the date of the judgment of the High Court. 5. The aforementioned question raised by the learned advocate for the appellant is no more res-integra, inasmuch as the very question is decided by a Three Judge Bench of this Court, in the case of Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC 724 , wherein it was observed that in terms of Article 136, Limitation Act 1963, a decree can be executed when it becomes enforceable. A decree is defined in Section 2(2) CPC, 1908 to mean the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. A decree within the meaning of Section 2(2) of the CPC would be enforceable irrespective of whether it is passed by the Trial Court, the First Appellate Court or the Second Appellate Court. When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intents and purposes, the suit continues. When a higher forum entertains an appeal and passes an order on merit, the doctrine of merger would apply. The doctrine of merger is based on the principles of the propriety in the hierarchy of the justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time. 6. Since the judgment of the Trial Court was affirmed by the First Appellate Court and was further affirmed by the Second Appellate Court, the decree passed by the High Court becomes enforceable in view of the doctrine of merger.
### Response:
0
### Explanation:
4. It is not in dispute that the execution petition has been filed within time from the date of the judgment of the High Court. The High Court dismissed the second appeal on 30.12.2003. The execution petition was filed in July 2006. Thus, undisputedly, the execution petition was within the period of limitation from the date of the judgment of the High Court5. The aforementioned question raised by the learned advocate for the appellant is no more res-integra, inasmuch as the very question is decided by a Three Judge Bench of this Court, in the case of Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC 724 , wherein it was observed that in terms of Article 136, Limitation Act 1963, a decree can be executed when it becomes enforceable. A decree is defined in Section 2(2) CPC, 1908 to mean the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. A decree within the meaning of Section 2(2) of the CPC would be enforceable irrespective of whether it is passed by the Trial Court, the First Appellate Court or the Second Appellate Court. When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intents and purposes, the suit continues. When a higher forum entertains an appeal and passes an order on merit, the doctrine of merger would apply. The doctrine of merger is based on the principles of the propriety in the hierarchy of the justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time6. Since the judgment of the Trial Court was affirmed by the First Appellate Court and was further affirmed by the Second Appellate Court, the decree passed by the High Court becomes enforceable in view of the doctrine of merger.
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Kulwant Singh & Others Vs. Oriental Insurance Company Ltd | Adarsh Kumar Goel J. 1. Delay condoned in SLP (C) No………of 2014 [CC. Nos.4232- 4233 of 2014]. 2. Leave granted in all the matters. 3. These appeals have been preferred against common judgment and Order dated 5th August, 2011 in MAC Appeal Nos.70 and 68 of 2011 and dated 8th March, 2013 in Review Petition Nos.793 and 776 of 2011 respectively of the High Court of Delhi at New Delhi. 4. The question raised for consideration is whether the Insurance Company is entitled to recovery rights on the ground of breach of conditions of insurance policy when the driver possesses valid driving licence for driving light vehicle but fails to obtain endorsement for driving goods vehicle. 5. The claim petition was filed before the Motor Accident Claims Tribunal by the dependents of the deceased Rizwan S/o Kadir @ Abdul Kadir who died in a road accident on 8th October, 2005 at about 05.30 A.M. while driving Tempo No.HR-G-5234 which was hit by a Tempo (Tata-407) bearing No.DL-1L-D3186. The Tribunal held that the death was on account of negligence of the driver of the offending Tempo (Tata-407) bearing No.DL-1LD3186 and the claimants were entitled to compensation. The vehicle was insured with the Insurance Company and the driver was having valid driving licence. The offending vehicle was light goods vehicle. The Insurance Company preferred an appeal before the High Court with the plea that it was entitled to recovery rights as the driving licence (Exhibit R3W1) was for driving light motor vehicle. It could not be equated with light goods vehicle. The High Court observed: Driving licence of the driver was for driving a light motor vehicle. In no manner can it be said that a light motor vehicle can be equated with a light goods vehicle. In this scenario, it is clear that there was a breach of the policy condition and driver of the vehicle did not have a valid and effective driving licence at the time of the accident. Recovery rights should have been granted by the Tribunal against the owner. The award is modified. Recovery rights are granted in favour of the Insurance Company. 6. Aggrieved by the Judgment of the High Court, the appellants-the owners of the vehicle in question have come up before this Court. 7. Learned counsel for the appellants submitted that the High Court erred in holding that licence for driving light motor vehicle entitled the driver to drive light goods vehicle. Reliance has been placed on the Judgments of this Court in S. Iyyapan vs. United India Insurance Company Limited and Another (2013) 7 SCC 62 )and National Insurance Company Ltd. vs. Annappa Irappa Nesaria Alias Nesearagi and Others (2008) 3 SCC 464 ). Thus, there was no breach of policy entitling the Insurance Company to recovery rights against the owner. Learned counsel for the Insurance Company supported the view taken by the High Court. 8. We have considered the rival submissions and perused the judgments relied upon. 9. We find the judgments relied upon cover the issue in favour of the appellants. In Annappa Irappa Nesaria (supra), this Court referred to the provisions of Section 2(21) and (23) of the Motor Vehicles Act, 1988, which are definitions of light motor vehicle and medium goods vehicle respectively and the rules prescribing the forms for the licence, i.e. Rule 14 and Form No.4. It was concluded : 20. From what has been noticed hereinbefore, it is evident that transport vehicle has now been substituted for medium goods vehicle and heavy goods vehicle. The light motor vehicle continued, at the relevant point of time to cover both light passenger carriage vehicle and light goods carriage vehicle. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well. 10. In S. Iyyapan (supra), the question was whether the driver who had a licence to drive light motor vehicle could drive light motor vehicle used as a commercial vehicle, without obtaining endorsement to drive a commercial vehicle. It was held that in such a case, the Insurance Company could not disown its liability. It was observed: 18. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment (Civil Misc. Appeal No.1016 of 2002, order dated 31.10.2008 (Mad) is, therefore, liable to be set aside. No contrary view has been brought to our notice. 11. Accordingly, we are of the view that there was no breach of any condition of insurance policy, in the present case, entitling the Insurance Company to recovery rights. | 1[ds]9. We find the judgments relied upon cover the issue in favour of the appellants. In Annappa Irappa Nesaria (supra), this Court referred to the provisions of Section 2(21) and (23) of the Motor Vehicles Act, 1988, which are definitions of light motor vehicle and medium goods vehicle respectively and the rules prescribing the forms for the licence, i.e. Rule 14 and Form No.4. It was concluded :20. From what has been noticed hereinbefore, it is evident that transport vehicle has now been substituted for medium goods vehicle and heavy goods vehicle. The light motor vehicle continued, at the relevant point of time to cover both light passenger carriage vehicle and light goods carriage vehicle. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as wellNo contrary view has been brought to our notice11. Accordingly, we are of the view that there was no breach of any condition of insurance policy, in the present case, entitling the Insurance Company to recovery rights. | 1 | 954 | 206 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
Adarsh Kumar Goel J. 1. Delay condoned in SLP (C) No………of 2014 [CC. Nos.4232- 4233 of 2014]. 2. Leave granted in all the matters. 3. These appeals have been preferred against common judgment and Order dated 5th August, 2011 in MAC Appeal Nos.70 and 68 of 2011 and dated 8th March, 2013 in Review Petition Nos.793 and 776 of 2011 respectively of the High Court of Delhi at New Delhi. 4. The question raised for consideration is whether the Insurance Company is entitled to recovery rights on the ground of breach of conditions of insurance policy when the driver possesses valid driving licence for driving light vehicle but fails to obtain endorsement for driving goods vehicle. 5. The claim petition was filed before the Motor Accident Claims Tribunal by the dependents of the deceased Rizwan S/o Kadir @ Abdul Kadir who died in a road accident on 8th October, 2005 at about 05.30 A.M. while driving Tempo No.HR-G-5234 which was hit by a Tempo (Tata-407) bearing No.DL-1L-D3186. The Tribunal held that the death was on account of negligence of the driver of the offending Tempo (Tata-407) bearing No.DL-1LD3186 and the claimants were entitled to compensation. The vehicle was insured with the Insurance Company and the driver was having valid driving licence. The offending vehicle was light goods vehicle. The Insurance Company preferred an appeal before the High Court with the plea that it was entitled to recovery rights as the driving licence (Exhibit R3W1) was for driving light motor vehicle. It could not be equated with light goods vehicle. The High Court observed: Driving licence of the driver was for driving a light motor vehicle. In no manner can it be said that a light motor vehicle can be equated with a light goods vehicle. In this scenario, it is clear that there was a breach of the policy condition and driver of the vehicle did not have a valid and effective driving licence at the time of the accident. Recovery rights should have been granted by the Tribunal against the owner. The award is modified. Recovery rights are granted in favour of the Insurance Company. 6. Aggrieved by the Judgment of the High Court, the appellants-the owners of the vehicle in question have come up before this Court. 7. Learned counsel for the appellants submitted that the High Court erred in holding that licence for driving light motor vehicle entitled the driver to drive light goods vehicle. Reliance has been placed on the Judgments of this Court in S. Iyyapan vs. United India Insurance Company Limited and Another (2013) 7 SCC 62 )and National Insurance Company Ltd. vs. Annappa Irappa Nesaria Alias Nesearagi and Others (2008) 3 SCC 464 ). Thus, there was no breach of policy entitling the Insurance Company to recovery rights against the owner. Learned counsel for the Insurance Company supported the view taken by the High Court. 8. We have considered the rival submissions and perused the judgments relied upon. 9. We find the judgments relied upon cover the issue in favour of the appellants. In Annappa Irappa Nesaria (supra), this Court referred to the provisions of Section 2(21) and (23) of the Motor Vehicles Act, 1988, which are definitions of light motor vehicle and medium goods vehicle respectively and the rules prescribing the forms for the licence, i.e. Rule 14 and Form No.4. It was concluded : 20. From what has been noticed hereinbefore, it is evident that transport vehicle has now been substituted for medium goods vehicle and heavy goods vehicle. The light motor vehicle continued, at the relevant point of time to cover both light passenger carriage vehicle and light goods carriage vehicle. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well. 10. In S. Iyyapan (supra), the question was whether the driver who had a licence to drive light motor vehicle could drive light motor vehicle used as a commercial vehicle, without obtaining endorsement to drive a commercial vehicle. It was held that in such a case, the Insurance Company could not disown its liability. It was observed: 18. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment (Civil Misc. Appeal No.1016 of 2002, order dated 31.10.2008 (Mad) is, therefore, liable to be set aside. No contrary view has been brought to our notice. 11. Accordingly, we are of the view that there was no breach of any condition of insurance policy, in the present case, entitling the Insurance Company to recovery rights.
### Response:
1
### Explanation:
9. We find the judgments relied upon cover the issue in favour of the appellants. In Annappa Irappa Nesaria (supra), this Court referred to the provisions of Section 2(21) and (23) of the Motor Vehicles Act, 1988, which are definitions of light motor vehicle and medium goods vehicle respectively and the rules prescribing the forms for the licence, i.e. Rule 14 and Form No.4. It was concluded :20. From what has been noticed hereinbefore, it is evident that transport vehicle has now been substituted for medium goods vehicle and heavy goods vehicle. The light motor vehicle continued, at the relevant point of time to cover both light passenger carriage vehicle and light goods carriage vehicle. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as wellNo contrary view has been brought to our notice11. Accordingly, we are of the view that there was no breach of any condition of insurance policy, in the present case, entitling the Insurance Company to recovery rights.
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VIJAY KARIA & ORS Vs. PRYSMIAN CAVI E SISTEMI SRL & ORS | as to shift the valuation date from 30.09.2014 to the date of our judgment must also be rejected given the learned arbitrators finding. Quite apart from this, nothing in Section 48 of the Arbitration Act would permit an enforcing court to add to or subtract from a foreign award that must either be enforced or rejected by reason of any of the grounds under Section 48 being made out to resist enforcement of such foreign award. This Courts power under Article 142 ought not to be used to circumvent the legislative policy contained in Section 48 of the Arbitration Act. XII. Inconsistent Awards 104. Dr. Singhvi then argued that the tribunals ruling in the First and Second Partial Final Award, with regard to the interpretation of clause 21, is inconsistent and irreconcilable. Apart from the fact that we do not find anything in the said two awards with regard to clause 21 being inconsistent and irreconcilable, this ground again does not, in any manner, shock our conscience and is therefore rejected. XIII. Violation of FEMA and the Rules thereunder 105. Dr. Singhvi then argued that in ordering the sale of shares at a 10% discount of the fair market value arrived at by Deloitte, FEMA and the Rules made thereunder would be breached, resulting in the award being contrary to the public policy of India, in that it would be against the fundamental policy of the Indian law. As pointed out hereinabove, for the reasons given in paragraphs 79 to 84 of this judgment, this ground again is bereft of any merit. In fact, the learned arbitrator awarded INR 63.90 per share as per the Deloitte valuation, which was contractually binding under clause 17 of the JVA. Therefore, the lower valuation of INR 16.88 per share as in the M/s Kalyaniwalla & Mistry valuation report dated 04.03.2016 was not accepted. XIV. Bias of the Tribunal 106. Lastly, Dr. Singhvi argued that the learned arbitrator was clearly biased in that the outcome of the Second Partial Final Award was clear to the Respondent No.1, inasmuch as its agent, one M/s Gilbert Tweed Associates, sent out an advertisement for recruiting employees for Ravin, two months before the Second Partial Final Award, thereby showing that this agent was clear as to the outcome of the proceedings. This was strongly refuted by the Respondent, stating that at no time had Gilbert Tweed Associates been retained by them. As a matter of fact, an agency called M/s Key2People was engaged by Respondent No.1 to identify potential candidates who could be recruited for the company in due course. M/s Key2People, in turn, appointed M/s Gilbert Tweed Associates. In any case, the Respondent undertook to terminate the engagement of M/s Key2People by its email of 28.10.2013. The allegation of bias thus made was clearly a desperate afterthought. The contention that the arbitrator was otherwise biased was dealt with in the Final Award as follows: 16. The Respondents have also made a repeated reference to an allegation that the Tribunal lacked independence and that the Respondents have lost faith in the Tribunal continuing to give an impartial determination of the matters which remain in dispute. 17. These allegations have already been raised by the Respondents and rejected by the LCIA Court. Furthermore, the Respondents have not sought to invoke any procedure in the English Court, which is the court of the seat with supervisory jurisdiction. If the Respondents wished to challenge the ruling of the LCIA Court and challenge the further involvement of the Tribunal in the process, the Respondents had to bring a challenge within the strict time limits provided for in the English Arbitration Act 1996, but they have not done so. It is regretted that the Respondents continued to advance this unfounded and unparticularised allegation. The Tribunal has in the past pointed out the distinction between independence and impartiality on the one hand and on the other the role of an arbitrator who has to decide between rival arguments, diametrically opposed and irreconcilable positions adopted before it and direct clash of evidence before it and then apply such findings to the disputes before it. It is an inherent and an inevitable part of the arbitral process that where parties, as indeed has been the case in this arbitration, have taken radically opposing positions on the evidence and the law that multiple decisions will have to be made that will ultimately disappoint one of the parties. This has been exactly such a dispute. It has, however, been a distinct feature of this process that the Respondents have not only voiced their disappointment but have not complied with the orders of the Tribunal to protect the Parties rights during the course of the Arbitration and not complied with the terms of the JVA as has been found and determined by the Tribunal in its prior Awards. In a dispute such as the present where it has been necessary to render a series of Awards, it is necessary for the Tribunal to apply the prior findings in any subsequent Award. 107. Having answered each of the submissions of Dr. Singhvi on behalf of the Appellants, we cannot help but be left with a feeling that the Appellants are indulging in a speculative litigation with the fond hope that by flinging mud on a foreign arbitral award, some of the mud so flung would stick. We have no doubt whatsoever that all the pleas taken by the Appellants are, in reality, pleas going to the unfairness of the conclusions reached by the award, which is plainly a foray into the merits of the matter, and which is plainly proscribed by Section 48 of the Arbitration Act read with the New York Convention. We have read, in detail, the four awards passed by the learned sole arbitrator and are satisfied that he has exhaustively discussed the evidence and arrived at detailed findings for each of the issues, claims and counter-claims, and finally accepted the Respondents case and rejected the Appellants. | 0[ds]46. Thus far, it is clear that enforcement of a foreign award may under Section 48 of the Arbitration Act be refused only if the party resisting enforcement furnishes to the Court proof that any of the stated grounds has been made out to resist enforcement. The said grounds are watertight – no ground outside Section 48 can be looked at. Also, the expression used in Section 48 is may53. When the grounds for resisting enforcement of a foreign award under Section 48 are seen, they may be classified into three groups – grounds which affect the jurisdiction of the arbitration proceedings; grounds which affect party interest alone; and grounds which go to the public policy of India, as explained by Explanation 1 to Section 48(2). Where a ground to resist enforcement is made out, by which the very jurisdiction of the tribunal is questioned - such as the arbitration agreement itself not being valid under the law to which the parties have subjected it, or where the subject matter of difference is not capable of settlement by arbitration under the law of India, it is obvious that there can be no discretion in these matters. Enforcement of a foreign award made without jurisdiction cannot possibly be weighed in the scales for a discretion to be exercised to enforce such award if the scales are tilted in its favour54. On the other hand, where the grounds taken to resist enforcement can be said to be linked to party interest alone, for example, that a party has been unable to present its case before the arbitrator, and which ground is capable of waiver or abandonment, or, the ground being made out, no prejudice has been caused to the party on such ground being made out, a Court may well enforce a foreign award, even if such ground is made out. When it comes to the public policy of India ground, again, there would be no discretion in enforcing an award which is induced by fraud or corruption, or which violates the fundamental policy of Indian law, or is in conflict with the most basic notions of morality or justice. It can thus be seen that the expression may in Section 48 can, depending upon the context, mean shall or as connoting that a residual discretion remains in the Court to enforce a foreign award, despite grounds for its resistance having been made out. What is clear is that the width of this discretion is limited to the circumstances pointed out hereinabove, in which case a balancing act may be performed by the Court enforcing a foreign award76. Given the fact that the object of Section 48 is to enforce foreign awards subject to certain well-defined narrow exceptions, the expression was otherwise unable to present his case occurring in Section 48(1)(b) cannot be given an expansive meaning and would have to be read in the context and colour of the words preceding the said phrase. In short, this expression would be a facet of natural justice, which would be breached only if a fair hearing was not given by the arbitrator to the parties. Read along with the first part of Section 48(1)(b), it is clear that this expression would apply at the hearing stage and not after the award has been delivered, as has been held in Ssangyong (supra). A good working test for determining whether a party has been unable to present his case is to see whether factors outside the partys control have combined to deny the party a fair hearing. Thus, where no opportunity was given to deal with an argument which goes to the root of the case or findings based on evidence which go behind the back of the party and which results in a denial of justice to the prejudice of the party; or additional or new evidence is taken which forms the basis of the award on which a party has been given no opportunity of rebuttal, would, on the facts of a given case, render a foreign award liable to be set aside on the ground that a party has been unable to present his case. This must, of course, be with the caveat that such breach be clearly made out on the facts of a given case, and that awards must always be read supportively with an inclination to uphold rather than destroy, given the minimal interference possible with foreign awards under Section 4877. All the cases cited by Mr. Nakul Dewan are judgments based on the language of the particular statute reflected in each of them – for example, Section 68 of the Arbitration Act, 1996 (U.K), Section 23(2) of the Hong Kong Old Arbitration Ordinance (Cap 391), Section 24(b) of the International Arbitration Act (Singapore) and Section 48(1)(a)(vii) of the Arbitration Act, 2002 (Singapore), all of which are differently worded from Section 48(1)(b). Each of these statutes deal with a breach of natural justice which, as we have seen, is a wider expression than the expression unable to present his case. Thus, it is not possible to hold that failure to consider a material issue would fall within the rubric of Section 48(1)(b)78. Having said this, however, if a foreign award fails to determine a material issue which goes to the root of the matter or fails to decide a claim or counter-claim in its entirety, the award may shock the conscience of the Court and may be set aside, as was done by the Delhi High Court in Campos (supra) on the ground of violation of the public policy of India, in that it would then offend a most basic notion of justice in this countryIt must always be remembered that poorreasoning, by which a material issue or claim is rejected, can never fall in this class of cases. Also, issues that the tribunal considered essential and has addressed must be given their due weight – it often happens that the tribunal considers a particular issue as essential and answers it, which by implication would mean that the other issue or issues raised have been implicitly rejected. For example, two parties may both allege that the other is in breach. A finding that one party is in breach, without expressly stating that the other party is not in breach, would amount to a decision on both a claim and a counter- claim, as to which party is in breach. Similarly, after hearing the parties, a certain sum may be awarded as damages and an issue as to interest may not be answered at all. This again may, on the facts of a given case, amount to an implied rejection of the claim for interest. The important point to be considered is that the foreign award must be read as a whole, fairly, and without nit-picking. If read as a whole, the said award has addressed the basic issues raised by the parties and has, in substance, decided the claims and counter-claims of the parties, enforcement must follow83. This reasoning commends itself to us. First and foremost, FEMA - unlike FERA - refers to the nations policy of managing foreign exchange instead of policing foreign exchange, the policeman being the Reserve Bank of India under FERA. It is important to remember that Section 47 of FERA no longer exists in FEMA, so that transactions that violate FEMA cannot be held to be void. Also, if a particular act violates any provision of FEMA or the Rules framed thereunder, permission of the Reserve Bank of India may be obtained post-facto if such violation can be condoned. Neither the award, nor the agreement being enforced by the award, can, therefore, be held to be of no effect in law. This being the case, a rectifiable breach under FEMA can never be held to be a violation of the fundamental policy of Indian law. Even assuming that Rule 21 of the Non-Debt Instrument Rules requires that shares be sold by a resident of India to a non-resident at a sum which shall not be less than the market value of the shares, and a foreign award directs that such shares be sold at a sum less than the market value, the Reserve Bank of India may choose to step in and direct that the aforesaid shares be sold only at the market value and not at the discounted value, or may choose to condone such breach. Further, even if the Reserve Bank of India were to take action under FEMA, the non-enforcement of a foreign award on the ground of violation of a FEMA Regulation or Rule would not arise as the award does not become void on that count. The fundamental policy of Indian law, as has been held in Renusagar (supra), must amount to a breach of some legal principle or legislation which is so basic to Indian law that it is not susceptible of being compromised. Fundamental Policy refers to the core values of Indias public policy as a nation, which may find expression not only in statutes but also time-honoured, hallowed principles which are followed by the Courts. Judged from this point of view, it is clear that resistance to the enforcement of a foreign award cannot be made on this groundIt is important to note that this Court recognized that FEMA, unlike FERA, does not have any provision for prosecution and punishment like that contained in Section 56 of FERA. The observations as to conservation and/or augmentation of foreign exchange, so far as FEMA is concerned, were made in the context of preventive detention of persons who violate foreign exchange regulations. The Court was careful to note that any illegal activity which jeopardises the economic fabric of the country, which includes smuggling activities relating to foreign exchange, are a serious menace to the nation and can be dealt with effectively, inter alia, through the mechanism of preventive detention. From this to contend that any violation of any FEMA Rule would make such violation an illegal activity does not follow. In fact, even if the reasoning contained in this judgment is torn out of its specific context and applied to this case, there being no alleged smuggling activity which involves depletion of foreign exchange, as against foreign exchange coming into the country as a result of sale of shares in an Indian company to a foreign company, it does not follow that such violation, even if proved, would breach the fundamental policy of Indian lawThese documents were called for in order to buttress the case of the Appellant that the Respondent was in breach of clause 21.1 of the JVA, and to ascertain whether the employees of Jaguar were passing on Ravins confidential information to Jaguar. In response to this request, on 12.10.2012, the Respondent stated that no case of breach of clause 21.1 of the JVA had been pleaded; that Jaguar does not have any business of producing cables; and that it had been set up for the sole purpose of hiring office premises. The Memorandum of Association and the Articles of Association of Jaguar were also handed over to the Appellants. What was stressed is that at no time after 12.10.2012 did the Appellants seek the leave of the tribunal to amend their counter-claim87. It must be remembered that the First Partial Final Award was made only on 15.02.2013. When the Respondent No.1 made its oral submissions and filed written closing submissions on 19.07.2013, the Appellants did not plead any case of breach due to Jaguar. It was only at the fag end, i.e. in the Appellants Responsive Closing Submissions, filed on 20.08.2013, that the tribunal was invited to rule on this breach. Obviously, by this time, the Respondent did not have any opportunity to controvert this case put up for the first time by the Appellants. Since this case had been put up for the first time at the fag end of the proceedings, before passing of the Second Partial Final Award dated 19.12.2013, the arbitrator cannot be faulted for not dealing with this case. In the Second Partial Final Award, the tribunal also recorded that the Appellants case on clause 21.1 was limited to the acquisition of ACPL and direct sales into India. The argument of the Appellant, made at the fag end of the proceedings, that since the Respondent held 99.99 % shares of Jaguar, which is in a similar cable business as Ravin, as evidenced by the Memorandum and Articles of Association of Jaguar, is a case that has never been pleaded. This being the case, it is obvious that the arbitrator was within his jurisdiction not to deal with this so-called counter-claim at all. This objection, therefore, does not fall within any of the grounds mentioned in Section 48 and must, therefore, be rejectedII. The Tribunal failed to make a determination on the Appellants counter-claim concerning ouster of the Appellants89. This being the case, it would be wholly incorrect to state that the tribunal has failed to make a determination on the Appellants counter-claim that the Respondents efforts to oust Appellant No. 1 and his family amounted to a breach of the JVA. While considering the case of the Appellants and the cross-case of the Respondent, the tribunal has adverted to pleadings, evidence and has given detailed findings as to why the Appellants are in material breach of the JVA, as a result of which the Respondent cannot be said to be in material breach of the JVA. This being the case, it cannot be said that this material issue has not been answered by the Second Partial Final Award. This ground, therefore, also does not fall within any of the stated pigeon-holes under Section 48III. The Tribunal failed to make a determination on the Appellants counter-claim concerning registration of the Ravin TrademarkWhen the First Partial Final Award is perused, it becomes clear that what was argued before the arbitrator, and therefore answered by the arbitrator, is whether the tribunal had jurisdiction to go into the Trademark License Agreement91. We have gone through the transcript of the hearings on both 12 th and 13 th December, 2012 before the arbitrator which clearly show that no argument was ever made by the Appellants before the tribunal that the Respondent had surreptitiously attempted to register the Ravin Trademark in its own name, and therefore was in breach of the competition clauses of the JVA. We are thus satisfied that this argument again appears to be an afterthought which has no foundation in the submissions made before the learned arbitrator. This submission does not again fall within any of the grounds referred to under Section 48IV. The Tribunal acted contrary to the Parties expert witnesses and ignored critical evidence with regard to the acquisition of ACPL94. The tribunal then went into the acquisition of ACPL in some detail, from paragraphs 216 to 244 of the Second Partial Final Award, and held that Mr. Karias contemporaneous reaction to the acquisition of Draka, which led to an indirect acquisition of 60 subsidiaries, one of which was ACPL, was that he was very happy that the Respondent No. 1 had so expanded its business. Several congratulatory emails are referred to by the arbitrator. Further, the arbitrator found that Mr. Karias statements in cross-examination showed that he had knowledge of this acquisition way back in November 2010 but never complained of material breach of the JVA. The arbitrator also examined evidence as to serious actual loss or harm, finding no such credible evidence, except occasional instances of both companies tendering for the same business. It was held that there was no reliable evidence that the Ravins business had been lost post the Draka acquisition or that there had been any diversion of business from Ravin to ACPL or vice versa. The arbitrator then held that ACPL is a small specialist cable business and operates principally in the area of instrumentation cables, which is not the area in which Ravin operates. The learned arbitrator also adverted to the evidence of the expert witnesses in arriving at this conclusion. It also made a reference to Mr. Karias cross-examination, stating that Mr. Karia himself considered ACPL to be the 50 th or 60 th competitor given its small business. The finding, therefore, was that the acquisition of ACPL did not in any manner amount to a serious material breach of the JVA95. Insofar as the failure to produce documents by Respondent No.1 with regard to its subsidiary ACPL is concerned, it must be remembered that ACPL is not a direct subsidiary of Respondent No. 1, being an indirect subsidiary of Respondent No.1s parent company consequent upon the acquisition of Draka. It has an independent Board of Directors. Above all, ACPL was not a party to these arbitral proceedings. The tribunal therefore made Procedural Order No. 5 dated 27.11.2012 in which it specifically recorded that if the Appellants wish to pursue their request for disclosure of further documents qua ACPL, they must approach the Courts to do so, as it was not within the arbitrators power to direct a person who is not party to the proceedings to produce documents. At no stage did the Appellants act in compliance of this Procedural Order and approach an English Court to direct ACPL to produce documents within its possession. This being so, as has been held hereinabove, a party cannot complain of breach of natural justice when it was within the control of such party to approach a U.K Court for production of such documents. This not having been done, it is clear that no adverse inference, as has been argued, could have been drawn by the learned arbitrator. This ground also, therefore, does not fall within any of the grounds argued before us under Section 48V. Perverse Interpretation of the JVAAs has been held, referring to some of the judgments quoted hereinabove, in particular Shri Lal Mahal (supra), the interpretation of an agreement by an arbitrator being perverse is not a ground that can be made out under any of the grounds contained in Section 48(1)(b). Without therefore getting into whether the tribunals interpretation is balanced, correct or even plausible, this ground is rejectedVI. The Tribunal ignored critical evidence with regard to the issue of agency agreements and Direct Sales98. Having perused the Award in this behalf, it cannot be said that the tribunal has in any manner ignored admissions or other critical evidence with regard to the issue of direct sales. In any case, if at all, this ground goes to alleged perversity of the award, which as has been held by us hereinabove, is outside the ken of Section 48VII. The Tribunal adopted disparate thresholds in determining material breachAgain, all the allegations made under this ground go to perversity of the award, which is outside the ken of Section 48. That apart, the tribunal indicates in paragraphs 104 to 106 of the Second Partial Final Award, that no disparate thresholds in determining material breach was adoptedVIII. The Tribunals selective consideration of contemporaneous evidenceWithout going into any further details in this ground, this argument must be rejected out of hand, as not falling within the parameters of Section 48. Equally, the tribunals consideration of evidence of key witnesses being selective and perverse, must be rejected on the same groundIX. The Tribunal appointed a conflicted valuerWe are satisfied that the learned arbitrator has considered this point in some detail and dismissed it. This objection again does not fall under any of the grounds mentioned in Section 48X. Valuation ignores Ravins stake in Power PlusX. Valuation ignores Ravins stake in Power PlusConsidering that this aspect was not taken into account by Deloitte, the valuation report ought not to have been accepted by the learned arbitrator, also being contrary to the position taken by both parties. This submission was dealt with by the learned arbitrator in great detail in paragraph 19 of the Final Award dated 11.04.2017. Among other things, the learned arbitrator referred to clause 17 of the JVA and stated that the said clause together with the formula prescribed therein was followed by Deloitte. Since this was done, Deloitte cannot possibly be faulted and cannot further be asked to take into account the stake of Ravin in Power Plus, as that would go outside the JVA. This again is a matter for the arbitrator to determine. This again is a ground wholly outside grounds that can attract challenge to foreign awards under Section 48Having found that the delay in the valuation report was attributable largely to the Appellants and that therefore the agreed date of 30.09.2014 is the correct date, we find nothing in the award which can be said to even remotely shock our conscience. This ground is also therefore rejected. Dr. Singhvis fervent plea to exercise our power under Article 142 of the Constitution of India, so as to shift the valuation date from 30.09.2014 to the date of our judgment must also be rejected given the learned arbitrators finding. Quite apart from this, nothing in Section 48 of the Arbitration Act would permit an enforcing court to add to or subtract from a foreign award that must either be enforced or rejected by reason of any of the grounds under Section 48 being made out to resist enforcement of such foreign award. This Courts power under Article 142 ought not to be used to circumvent the legislative policy contained in Section 48 of the Arbitration ActApart from the fact that we do not find anything in the said two awards with regard to clause 21 being inconsistent and irreconcilable, this ground again does not, in any manner, shock our conscience and is therefore rejectedXIII. Violation of FEMA and the Rules thereunderAs pointed out hereinabove, for the reasons given in paragraphs 79 to 84 of this judgment, this ground again is bereft of any merit. In fact, the learned arbitrator awarded INR 63.90 per share as per the Deloitte valuation, which was contractually binding under clause 17 of the JVA. Therefore, the lower valuation of INR 16.88 per share as in the M/s Kalyaniwalla & Mistry valuation report dated 04.03.2016 was not acceptedXIV. Bias of the TribunalAs a matter of fact, an agency called M/s Key2People was engaged by Respondent No.1 to identify potential candidates who could be recruited for the company in due course. M/s Key2People, in turn, appointed M/s Gilbert Tweed Associates. In any case, the Respondent undertook to terminate the engagement of M/s Key2People by its email of 28.10.2013. The allegation of bias thus made was clearly a desperate afterthought107. Having answered each of the submissions of Dr. Singhvi on behalf of the Appellants, we cannot help but be left with a feeling that the Appellants are indulging in a speculative litigation with the fond hope that by flinging mud on a foreign arbitral award, some of the mud so flung would stick. We have no doubt whatsoever that all the pleas taken by the Appellants are, in reality, pleas going to the unfairness of the conclusions reached by the award, which is plainly a foray into the merits of the matter, and which is plainly proscribed by Section 48 of the Arbitration Act read with the New York Convention. We have read, in detail, the four awards passed by the learned sole arbitrator and are satisfied that he has exhaustively discussed the evidence and arrived at detailed findings for each of the issues, claims and counter-claims, and finally accepted the Respondents case and rejected the Appellants. | 0 | 45,599 | 4,332 | ### Instruction:
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as to shift the valuation date from 30.09.2014 to the date of our judgment must also be rejected given the learned arbitrators finding. Quite apart from this, nothing in Section 48 of the Arbitration Act would permit an enforcing court to add to or subtract from a foreign award that must either be enforced or rejected by reason of any of the grounds under Section 48 being made out to resist enforcement of such foreign award. This Courts power under Article 142 ought not to be used to circumvent the legislative policy contained in Section 48 of the Arbitration Act. XII. Inconsistent Awards 104. Dr. Singhvi then argued that the tribunals ruling in the First and Second Partial Final Award, with regard to the interpretation of clause 21, is inconsistent and irreconcilable. Apart from the fact that we do not find anything in the said two awards with regard to clause 21 being inconsistent and irreconcilable, this ground again does not, in any manner, shock our conscience and is therefore rejected. XIII. Violation of FEMA and the Rules thereunder 105. Dr. Singhvi then argued that in ordering the sale of shares at a 10% discount of the fair market value arrived at by Deloitte, FEMA and the Rules made thereunder would be breached, resulting in the award being contrary to the public policy of India, in that it would be against the fundamental policy of the Indian law. As pointed out hereinabove, for the reasons given in paragraphs 79 to 84 of this judgment, this ground again is bereft of any merit. In fact, the learned arbitrator awarded INR 63.90 per share as per the Deloitte valuation, which was contractually binding under clause 17 of the JVA. Therefore, the lower valuation of INR 16.88 per share as in the M/s Kalyaniwalla & Mistry valuation report dated 04.03.2016 was not accepted. XIV. Bias of the Tribunal 106. Lastly, Dr. Singhvi argued that the learned arbitrator was clearly biased in that the outcome of the Second Partial Final Award was clear to the Respondent No.1, inasmuch as its agent, one M/s Gilbert Tweed Associates, sent out an advertisement for recruiting employees for Ravin, two months before the Second Partial Final Award, thereby showing that this agent was clear as to the outcome of the proceedings. This was strongly refuted by the Respondent, stating that at no time had Gilbert Tweed Associates been retained by them. As a matter of fact, an agency called M/s Key2People was engaged by Respondent No.1 to identify potential candidates who could be recruited for the company in due course. M/s Key2People, in turn, appointed M/s Gilbert Tweed Associates. In any case, the Respondent undertook to terminate the engagement of M/s Key2People by its email of 28.10.2013. The allegation of bias thus made was clearly a desperate afterthought. The contention that the arbitrator was otherwise biased was dealt with in the Final Award as follows: 16. The Respondents have also made a repeated reference to an allegation that the Tribunal lacked independence and that the Respondents have lost faith in the Tribunal continuing to give an impartial determination of the matters which remain in dispute. 17. These allegations have already been raised by the Respondents and rejected by the LCIA Court. Furthermore, the Respondents have not sought to invoke any procedure in the English Court, which is the court of the seat with supervisory jurisdiction. If the Respondents wished to challenge the ruling of the LCIA Court and challenge the further involvement of the Tribunal in the process, the Respondents had to bring a challenge within the strict time limits provided for in the English Arbitration Act 1996, but they have not done so. It is regretted that the Respondents continued to advance this unfounded and unparticularised allegation. The Tribunal has in the past pointed out the distinction between independence and impartiality on the one hand and on the other the role of an arbitrator who has to decide between rival arguments, diametrically opposed and irreconcilable positions adopted before it and direct clash of evidence before it and then apply such findings to the disputes before it. It is an inherent and an inevitable part of the arbitral process that where parties, as indeed has been the case in this arbitration, have taken radically opposing positions on the evidence and the law that multiple decisions will have to be made that will ultimately disappoint one of the parties. This has been exactly such a dispute. It has, however, been a distinct feature of this process that the Respondents have not only voiced their disappointment but have not complied with the orders of the Tribunal to protect the Parties rights during the course of the Arbitration and not complied with the terms of the JVA as has been found and determined by the Tribunal in its prior Awards. In a dispute such as the present where it has been necessary to render a series of Awards, it is necessary for the Tribunal to apply the prior findings in any subsequent Award. 107. Having answered each of the submissions of Dr. Singhvi on behalf of the Appellants, we cannot help but be left with a feeling that the Appellants are indulging in a speculative litigation with the fond hope that by flinging mud on a foreign arbitral award, some of the mud so flung would stick. We have no doubt whatsoever that all the pleas taken by the Appellants are, in reality, pleas going to the unfairness of the conclusions reached by the award, which is plainly a foray into the merits of the matter, and which is plainly proscribed by Section 48 of the Arbitration Act read with the New York Convention. We have read, in detail, the four awards passed by the learned sole arbitrator and are satisfied that he has exhaustively discussed the evidence and arrived at detailed findings for each of the issues, claims and counter-claims, and finally accepted the Respondents case and rejected the Appellants.
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such documents. This not having been done, it is clear that no adverse inference, as has been argued, could have been drawn by the learned arbitrator. This ground also, therefore, does not fall within any of the grounds argued before us under Section 48V. Perverse Interpretation of the JVAAs has been held, referring to some of the judgments quoted hereinabove, in particular Shri Lal Mahal (supra), the interpretation of an agreement by an arbitrator being perverse is not a ground that can be made out under any of the grounds contained in Section 48(1)(b). Without therefore getting into whether the tribunals interpretation is balanced, correct or even plausible, this ground is rejectedVI. The Tribunal ignored critical evidence with regard to the issue of agency agreements and Direct Sales98. Having perused the Award in this behalf, it cannot be said that the tribunal has in any manner ignored admissions or other critical evidence with regard to the issue of direct sales. In any case, if at all, this ground goes to alleged perversity of the award, which as has been held by us hereinabove, is outside the ken of Section 48VII. The Tribunal adopted disparate thresholds in determining material breachAgain, all the allegations made under this ground go to perversity of the award, which is outside the ken of Section 48. That apart, the tribunal indicates in paragraphs 104 to 106 of the Second Partial Final Award, that no disparate thresholds in determining material breach was adoptedVIII. The Tribunals selective consideration of contemporaneous evidenceWithout going into any further details in this ground, this argument must be rejected out of hand, as not falling within the parameters of Section 48. Equally, the tribunals consideration of evidence of key witnesses being selective and perverse, must be rejected on the same groundIX. The Tribunal appointed a conflicted valuerWe are satisfied that the learned arbitrator has considered this point in some detail and dismissed it. This objection again does not fall under any of the grounds mentioned in Section 48X. Valuation ignores Ravins stake in Power PlusX. Valuation ignores Ravins stake in Power PlusConsidering that this aspect was not taken into account by Deloitte, the valuation report ought not to have been accepted by the learned arbitrator, also being contrary to the position taken by both parties. This submission was dealt with by the learned arbitrator in great detail in paragraph 19 of the Final Award dated 11.04.2017. Among other things, the learned arbitrator referred to clause 17 of the JVA and stated that the said clause together with the formula prescribed therein was followed by Deloitte. Since this was done, Deloitte cannot possibly be faulted and cannot further be asked to take into account the stake of Ravin in Power Plus, as that would go outside the JVA. This again is a matter for the arbitrator to determine. This again is a ground wholly outside grounds that can attract challenge to foreign awards under Section 48Having found that the delay in the valuation report was attributable largely to the Appellants and that therefore the agreed date of 30.09.2014 is the correct date, we find nothing in the award which can be said to even remotely shock our conscience. This ground is also therefore rejected. Dr. Singhvis fervent plea to exercise our power under Article 142 of the Constitution of India, so as to shift the valuation date from 30.09.2014 to the date of our judgment must also be rejected given the learned arbitrators finding. Quite apart from this, nothing in Section 48 of the Arbitration Act would permit an enforcing court to add to or subtract from a foreign award that must either be enforced or rejected by reason of any of the grounds under Section 48 being made out to resist enforcement of such foreign award. This Courts power under Article 142 ought not to be used to circumvent the legislative policy contained in Section 48 of the Arbitration ActApart from the fact that we do not find anything in the said two awards with regard to clause 21 being inconsistent and irreconcilable, this ground again does not, in any manner, shock our conscience and is therefore rejectedXIII. Violation of FEMA and the Rules thereunderAs pointed out hereinabove, for the reasons given in paragraphs 79 to 84 of this judgment, this ground again is bereft of any merit. In fact, the learned arbitrator awarded INR 63.90 per share as per the Deloitte valuation, which was contractually binding under clause 17 of the JVA. Therefore, the lower valuation of INR 16.88 per share as in the M/s Kalyaniwalla & Mistry valuation report dated 04.03.2016 was not acceptedXIV. Bias of the TribunalAs a matter of fact, an agency called M/s Key2People was engaged by Respondent No.1 to identify potential candidates who could be recruited for the company in due course. M/s Key2People, in turn, appointed M/s Gilbert Tweed Associates. In any case, the Respondent undertook to terminate the engagement of M/s Key2People by its email of 28.10.2013. The allegation of bias thus made was clearly a desperate afterthought107. Having answered each of the submissions of Dr. Singhvi on behalf of the Appellants, we cannot help but be left with a feeling that the Appellants are indulging in a speculative litigation with the fond hope that by flinging mud on a foreign arbitral award, some of the mud so flung would stick. We have no doubt whatsoever that all the pleas taken by the Appellants are, in reality, pleas going to the unfairness of the conclusions reached by the award, which is plainly a foray into the merits of the matter, and which is plainly proscribed by Section 48 of the Arbitration Act read with the New York Convention. We have read, in detail, the four awards passed by the learned sole arbitrator and are satisfied that he has exhaustively discussed the evidence and arrived at detailed findings for each of the issues, claims and counter-claims, and finally accepted the Respondents case and rejected the Appellants.
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Cholan Roadways Ltd Vs. G. Thirugnanasambandam | who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX, Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly applicable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witnesses who have executed them, if they are alive and can be produced. Again if a party wants an inspection, it is incumbent on the Tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognized and admit of no doubt." 27. The said decision, for the reasons stated hereinabove, cannot have any application to the fact of the present case. 28. The learned Counsel for the respondent also placed reliance upon a decision of this Court in Zunjarrao Bhikaji Nagarkar (supra). In that case, this court was concerned with the charge of misconduct against the appellant therein concerning an allegation that he favoured M/s Hari Vishnu Pakaging Ltd. Nagpur (assessee) by not imposing penalty on it under Rule 173-Q of the Central Excise Rules, 1944 when he had passed an order-in-Original No.20 of 1995 dated 2.3.1995 holding that the assesee had clandestinely manufactured and cleared the excisable goods willfully and evaded the excise duty and had ordered confiscation of the goods. The misconduct was said to have been committed by the appellant while exercising his judicial function. Having regard to the factual matrix obtaining therein, this court observed: "37. Penalty to be imposed has to be commensurate with the gravity of the offence and the extent of the evasion. In the present case, penalty could have been justified. The appellant was, however, of the view that imposition of penalty was not mandatory. He could have formed such a view....." It was further observed: "41. When penalty is not levied, the assessee certainly benefits. But it cannot be said that by not levying the penalty the officer has favoured the assessee or shown undue favour to him. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. The record in the present case does not show if the disciplinary authority had any information within its possession from where it could form an opinion that the appellant showed "favour" to the assessee by not imposing the penalty. He may have wrongly exercised his jurisdiction. But that wrong can be corrected in appeal. That cannot always form a basis for initiating disciplinary proceedings against an officer while he is acting as a quasi-judicial authority. It must be kept in mind that being a quasi-judicial authority, he is always subject to judicial supervision in appeal. 42. Initiation of disciplinary proceedings against an officer cannot take place on information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty." 29. In the aforementioned factual matrix of the case it was held that every error of law would not constitute a charge of misconduct. 30. This decision also has no application to the facts of the present case. In the instant case the Presiding Officer, Industrial Tribunal as also the learned Single Judge and the Division Bench of the High Court misdirected themselves in law insofar as they failed to pose unto themselves correct questions. It is now well-settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. In this case, further more, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of Res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not garmane for determining the issue, namely, the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which in "preponderance of probability" and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out. 31. Errors of fact can also be a subject-matter of judicial review. (See E. vs. Secretary of State for the Home Department (2004 Vol.2 Weekly Law Report page 1351). Reference in this connection may also be made to an interesting article by Paul P. Craig Q.C. titled Judicial Review, Appeal and Factual Error published in 2004 Public Law Page 788. 32. The impugned judgment, therefore, cannot be sustained and, thus, must be set aside. 33. Ordinarily, we would have remitted the matter back to Industrial Tribunal for its consideration afresh but as the matter is pending for a long time and as we are satisfied having regard to the materials placed before us that the Industrial Tribunal should have granted approval of the order of punishment passed by the Appellant herein against the Respondents, we direct accordingly. The Respondents may, however, take recourse to such remedy as is available to in law for questioning the said order of dismissal. | 1[ds]12. It is neither in doubt nor in dispute that the jurisdiction of the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act is a limited one. The jurisdiction of the Industrial Tribunal under Section 33(2)(b) cannot be equated with that of Section 10 of the Industrial Disputes Act. In this case admittedly an enquiry has been held wherein the parties examined their witnesses. The Respondent was represented and assisted by three observers. Shri M. Venkatatesan was the Branch Manager, CRC Tanjore Town Branch, who had submitted his report and proved the same before the Inquiry Officer. He furnished a detailed account of the position of the buss the other bus after the collision took place. He found that there was no brake tyre mark of the bus on the road. All the two seaters seats on the entire left side of the bus were found totally damaged. The left side roof arch angle of the bus was found totally out. Not only 4 persons were found to be dead at the spot, the driver and conductor of the bus and 10 other passengers were also sustained injuries in this accident. Out of the said 10 passengers, 3 subsequently died in the hospital owing to the injuries sustained by them. He further found that on the left side of the road in the earthen margin, there was a tamarind trees protruding branch and which was found to have been already cut and the bottom stump of the branch was found protruding to a length of 3 inches. The bus was found to have been brought to a halt only at a distance of 81 ft. from the place of impact against the tree. He further noticed that even after the impact of the bus against the tree, the delinquent is said to have swerved the bus further to the right side from left side without applying brake and reducing speed and later only be brought the bus to a halt at some distance as a result of which the entire side roof angle of the bus got cut13. The learned Presiding Officer, Industrial Tribunal, as noticed hereinbefore, opined that the passengers of the bus should have been examined. It does not appear from the order dated 29.4.88 passed by the Presiding Officer, Industrial Tribunal that the Respondent herein made any prayer for cross examining the passengers who travelled in thed bus and who were examined by the said Shri M. Venkatesan. It is evident from the order of the learned Tribunal that only in the show cause filed by the Respondent in response to the second show cause notice, such a contention was raised. The learned Presiding Officer, Industrial Tribunal in his impugned judgment further failed to take into consideration that even if the statements of the said passengers are ignored, the misconduct allegedly committed by the Respondent would stand proved on the basis of the evidence adduced by Shri M. Venkatesan together with the circumstantial evidences brought on records. The learned Single Judge of the High Court although referred to the sketch drawn by1 on the site) and 4 photographs) but ignored the same observing that unless witnesses were examined in support of the two exhibits, it is not possible to draw any inference therefrom. The Division Bench of the High Court did not examine the materials on records independently but referred to the findings of the Industrial Tribunal as also the learned Single Judge to the effect that from their judgments it was apparent that the driver had not been driving the bus rashly and negligently14. It is now ad principle of law that the principle of Evidence Act have no application in a domestic enquiry16. There cannot, however, by any doubt whatsoever that the principle of natural justice are required to be complied with in a domestic enquiry. It is, however,n that the said principle cannot be stretched too far nor can be applied in a vacuum17. The jurisdiction of the Tribunal while considering an application for grant of approval has succinctly been stated by this Court in Martin Burn Ltd. vs. R.N. Banerjee (AIR 1958 SC 79 ). While exercising jurisdiction under Section 33(2)(b) of the Act, the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regard the validity or otherwise of the domestic enquiry held against the delinquent, keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act18. It is further trite that the standard of proof required in a domestic enquirys a criminal trial is absolutely different. Whereas in the former preponderance of probability would suffice; in the latter, proof beyond all reasonable doubt is imperative19. The tribunal while exercising its jurisdiction under Section 33(2)(b) of the Industrial Disputes Act was required to bear in mind the aforementioned legal principles. Furthermore, in a case of this nature the probative value of the evidence showing the extensive damages caused to the entire left side of the bus; the fact that the bus first hit the branches of a tamarind tree and then stopped at a distance of 81 ft therefrom even after colliding with another bus coming from the front deserved serious consideration at the hands of the tribunal. The nature of impact clearly demonstrates that the vehicle was being driven rashly or negligently20. Res ipsa loquitur is an principle which is applicable in the instant case. Once the said doctrine is found to be applicable the burden of proof would shift on the delinquent. As noticed hereinabove, the enquiry officer has categorically rejected the defence of the Respondent that the bus was being driven at a slow speedIn the instant case the Presiding Officer, Industrial Tribunal as also the learned Single Judge and the Division Bench of the High Court misdirected themselves in law insofar as they failed to pose unto themselves correct questions. It is nowd that al authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. In this case, further more, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of Res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not garmane for determining the issue, namely, the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which in "preponderance of probability" and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out33. Ordinarily, we would have remitted the matter back to Industrial Tribunal for its consideration afresh but as the matter is pending for a long time and as we are satisfied having regard to the materials placed before us that the Industrial Tribunal should have granted approval of the order of punishment passed by the Appellant herein against the Respondents, we direct accordingly. The Respondents may, however, take recourse to such remedy as is available to in law for questioning the said order of dismissal. | 1 | 6,001 | 1,374 | ### Instruction:
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who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX, Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly applicable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witnesses who have executed them, if they are alive and can be produced. Again if a party wants an inspection, it is incumbent on the Tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognized and admit of no doubt." 27. The said decision, for the reasons stated hereinabove, cannot have any application to the fact of the present case. 28. The learned Counsel for the respondent also placed reliance upon a decision of this Court in Zunjarrao Bhikaji Nagarkar (supra). In that case, this court was concerned with the charge of misconduct against the appellant therein concerning an allegation that he favoured M/s Hari Vishnu Pakaging Ltd. Nagpur (assessee) by not imposing penalty on it under Rule 173-Q of the Central Excise Rules, 1944 when he had passed an order-in-Original No.20 of 1995 dated 2.3.1995 holding that the assesee had clandestinely manufactured and cleared the excisable goods willfully and evaded the excise duty and had ordered confiscation of the goods. The misconduct was said to have been committed by the appellant while exercising his judicial function. Having regard to the factual matrix obtaining therein, this court observed: "37. Penalty to be imposed has to be commensurate with the gravity of the offence and the extent of the evasion. In the present case, penalty could have been justified. The appellant was, however, of the view that imposition of penalty was not mandatory. He could have formed such a view....." It was further observed: "41. When penalty is not levied, the assessee certainly benefits. But it cannot be said that by not levying the penalty the officer has favoured the assessee or shown undue favour to him. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. The record in the present case does not show if the disciplinary authority had any information within its possession from where it could form an opinion that the appellant showed "favour" to the assessee by not imposing the penalty. He may have wrongly exercised his jurisdiction. But that wrong can be corrected in appeal. That cannot always form a basis for initiating disciplinary proceedings against an officer while he is acting as a quasi-judicial authority. It must be kept in mind that being a quasi-judicial authority, he is always subject to judicial supervision in appeal. 42. Initiation of disciplinary proceedings against an officer cannot take place on information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty." 29. In the aforementioned factual matrix of the case it was held that every error of law would not constitute a charge of misconduct. 30. This decision also has no application to the facts of the present case. In the instant case the Presiding Officer, Industrial Tribunal as also the learned Single Judge and the Division Bench of the High Court misdirected themselves in law insofar as they failed to pose unto themselves correct questions. It is now well-settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. In this case, further more, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of Res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not garmane for determining the issue, namely, the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which in "preponderance of probability" and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out. 31. Errors of fact can also be a subject-matter of judicial review. (See E. vs. Secretary of State for the Home Department (2004 Vol.2 Weekly Law Report page 1351). Reference in this connection may also be made to an interesting article by Paul P. Craig Q.C. titled Judicial Review, Appeal and Factual Error published in 2004 Public Law Page 788. 32. The impugned judgment, therefore, cannot be sustained and, thus, must be set aside. 33. Ordinarily, we would have remitted the matter back to Industrial Tribunal for its consideration afresh but as the matter is pending for a long time and as we are satisfied having regard to the materials placed before us that the Industrial Tribunal should have granted approval of the order of punishment passed by the Appellant herein against the Respondents, we direct accordingly. The Respondents may, however, take recourse to such remedy as is available to in law for questioning the said order of dismissal.
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of 3 inches. The bus was found to have been brought to a halt only at a distance of 81 ft. from the place of impact against the tree. He further noticed that even after the impact of the bus against the tree, the delinquent is said to have swerved the bus further to the right side from left side without applying brake and reducing speed and later only be brought the bus to a halt at some distance as a result of which the entire side roof angle of the bus got cut13. The learned Presiding Officer, Industrial Tribunal, as noticed hereinbefore, opined that the passengers of the bus should have been examined. It does not appear from the order dated 29.4.88 passed by the Presiding Officer, Industrial Tribunal that the Respondent herein made any prayer for cross examining the passengers who travelled in thed bus and who were examined by the said Shri M. Venkatesan. It is evident from the order of the learned Tribunal that only in the show cause filed by the Respondent in response to the second show cause notice, such a contention was raised. The learned Presiding Officer, Industrial Tribunal in his impugned judgment further failed to take into consideration that even if the statements of the said passengers are ignored, the misconduct allegedly committed by the Respondent would stand proved on the basis of the evidence adduced by Shri M. Venkatesan together with the circumstantial evidences brought on records. The learned Single Judge of the High Court although referred to the sketch drawn by1 on the site) and 4 photographs) but ignored the same observing that unless witnesses were examined in support of the two exhibits, it is not possible to draw any inference therefrom. The Division Bench of the High Court did not examine the materials on records independently but referred to the findings of the Industrial Tribunal as also the learned Single Judge to the effect that from their judgments it was apparent that the driver had not been driving the bus rashly and negligently14. It is now ad principle of law that the principle of Evidence Act have no application in a domestic enquiry16. There cannot, however, by any doubt whatsoever that the principle of natural justice are required to be complied with in a domestic enquiry. It is, however,n that the said principle cannot be stretched too far nor can be applied in a vacuum17. The jurisdiction of the Tribunal while considering an application for grant of approval has succinctly been stated by this Court in Martin Burn Ltd. vs. R.N. Banerjee (AIR 1958 SC 79 ). While exercising jurisdiction under Section 33(2)(b) of the Act, the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regard the validity or otherwise of the domestic enquiry held against the delinquent, keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act18. It is further trite that the standard of proof required in a domestic enquirys a criminal trial is absolutely different. Whereas in the former preponderance of probability would suffice; in the latter, proof beyond all reasonable doubt is imperative19. The tribunal while exercising its jurisdiction under Section 33(2)(b) of the Industrial Disputes Act was required to bear in mind the aforementioned legal principles. Furthermore, in a case of this nature the probative value of the evidence showing the extensive damages caused to the entire left side of the bus; the fact that the bus first hit the branches of a tamarind tree and then stopped at a distance of 81 ft therefrom even after colliding with another bus coming from the front deserved serious consideration at the hands of the tribunal. The nature of impact clearly demonstrates that the vehicle was being driven rashly or negligently20. Res ipsa loquitur is an principle which is applicable in the instant case. Once the said doctrine is found to be applicable the burden of proof would shift on the delinquent. As noticed hereinabove, the enquiry officer has categorically rejected the defence of the Respondent that the bus was being driven at a slow speedIn the instant case the Presiding Officer, Industrial Tribunal as also the learned Single Judge and the Division Bench of the High Court misdirected themselves in law insofar as they failed to pose unto themselves correct questions. It is nowd that al authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. In this case, further more, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of Res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not garmane for determining the issue, namely, the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which in "preponderance of probability" and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out33. Ordinarily, we would have remitted the matter back to Industrial Tribunal for its consideration afresh but as the matter is pending for a long time and as we are satisfied having regard to the materials placed before us that the Industrial Tribunal should have granted approval of the order of punishment passed by the Appellant herein against the Respondents, we direct accordingly. The Respondents may, however, take recourse to such remedy as is available to in law for questioning the said order of dismissal.
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Commissioner of Income Tax, West Bengal I, Calcutta Vs. Bengal River Steam Service Company Limited, Calcutta | 1946. In that accounting year the Government requisitioned certain boats belonging to the assessee on charter basis. The statement of the vessels so chartered and income received therefrom during the year was placed before the tribunal. But it is not necessary to refer to the same as it has no bearing on the question of law that we are called upon to decide. The asessees registered office was in Calcutta. It is said that during the accounting year in question, the assessee received Rupees 3,43,138/- as Hire for the boats requisitioned by the Government. But the traffic originated in the areas which are now a part of Pakistan. The question for consideration is whether the receipt of Rs. 3,43,138/- can be brought to tax in this country. For deciding then question, it is necessary to refer to a few more facts: In order to avoid Double Taxation of Income, profits and gains because of the partition of India, the Government of India entered into an Agreement with Pakistan in 1947 in exercise of the powers conferred on it by S. 49 (AA) of the Act, Section 11 (A) of the Excess Profits Tax Act, and S. 18A of the Business Profits Act, 1947 as adapted. That Agreement to the extent material for our present purpose reads thus: "Whereas the Government of the Dominion of India and the Government of the Dominion of Pakistan desire to conclude an agreement for the avoidance of double taxation of income chargeable in the two dominions in accordance with their respective laws: Now therefore, the said two Governments do hereby agree as follows: Article I. xx xx xx Article II. xx xx xx Article III. xx xx xx Article IV. Each Domination shall make assessment in the ordinary way under its own laws; and where either Dominion under the operation of its laws charges any income from the sources or categories of transaction specified in column 1 of the Schedule to this Agreement (hereinafter referred to as Schedule) in excess of the amount calculated according to the percentage specified in columns 2 and 3 thereof, that Dominion shall allow an abatement equal to the lower amount of tax payable on such excess in their Dominion provided for in Article VI. Article V xx xx xx Article VI. (a) For the purposes of the abatement to be allowed under Article IV or V, the tax payable in each Dominion on the excess or the doubly taxed income as the case may be, shall be such proportion of the tax payable in each Dominion as the excess or the doubly taxed income bears to the total income of the assessee in each Dominion. (b) xx xx xx Article VII xx xx xx Article VIII xx xx xx Article IX xx xx xx THE SCHEDULE (See Article IV) Source of income or nature of transaction from which income is derived.Percentage of income which each Dominion is entitled to charge under the agreement.Remarks. (1)(2) (3)(4) 1. x x x 2. x x x 3. x x x 4. x x x 5. Income from business or "other sources":- (a) ... ... (b) ... ... (c) ... ... (d) ... ... (e) ... ... (f) ... ... (g) Transport Ships ...100 per cent., by the Dominion in which the traffic originates.Nil by the other. 6. x x x 7. x x x 8. x x x 9. Any income derived from a source or category of transactions not mentioned in any of the foregoing items of the Schedule.100 per cent., by the Dominion in which the income actually accrues or arisesNil by the other. 4. It appears from the statement of the case that the assessee earned Rs. 3,43,138/- in Calcutta and Rs. 7,296/. in Narayan Ganj (now in Pakisthan) from out of the hire received from the Governments in respect of the boats chartered by them. The Income-tax Officer held that the amount of Rs. 3,43,138/- so received was income earned in Indian Dominion and therefore liable to be brought to tax in this country. In so doing he applied the provisions of Item 9 of the Schedule to the Agreement for Avoidance of Double Taxation. According to the assessee his case fell within item 5 (g) and not item 9. The Income-tax Officer did not accept that contention. In appeal the Appellate Assistant Commissioner agreed with the conclusions reached by the Income-tax Officer but the Income-tax Appellate Tribunal differed from the view taken by the Income-tax Officer, and the Appellate Assistant Commissioner. It came to the conclusion that the receipt in question fell within item 5 (g) of the Agreement and therefore it is not liable to be taxed in this country as admittedly the traffic originated in areas which are now part of Pakistan. As mentioned earlier the High Court agreed with the view taken by the tribunal. 5. It was urged on behalf of the Department by the learned Solicitor-General that there is a distinction between the "Hire" and "Freight". According to him item 5 (g) of the Agreement deals only with "Freight" whereas any "Hire" received would come within item 9. We see no basis for this subtlety. Quite plainly item 5 deals with transport by ships, air and road. Herein we are dealing with income realised as a result of the transport by ships. Item 5 (g) does make any distinction between "Hire" and "Freight". It deals with types of transport by ships. Item 9 is a residuary clause. That item will attracted only if the income, profit or gains earned or received cannot come within any other item. As mentioned earlier, the income with which we are concerned in this case plainly comes within item 5 (g). We agree with the Tribunal and the High Court that the receipt with which we are concerned in this case comes within item 5 (g). 6. For the reasons mentioned earlier, we are of opinion that the High Court correctly answered the questions referred to it. | 0[ds]5. It was urged on behalf of the Department by the learnedl that there is a distinction between the "Hire" and "Freight". According to him item 5 (g) of the Agreement deals only with "Freight" whereas any "Hire" received would come within item 9. We see no basis for this subtlety. Quite plainly item 5 deals with transport by ships, air and road. Herein we are dealing with income realised as a result of the transport by ships. Item 5 (g) does make any distinction between "Hire" and "Freight". It deals with types of transport by ships. Item 9 is a residuary clause. That item will attracted only if the income, profit or gains earned or received cannot come within any other item. As mentioned earlier, the income with which we are concerned in this case plainly comes within item 5 (g). We agree with the Tribunal and the High Court that the receipt with which we are concerned in this case comes within item 5 (g)6. For the reasons mentioned earlier, we are of opinion that the High Court correctly answered the questions referred to it. | 0 | 1,385 | 230 | ### Instruction:
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1946. In that accounting year the Government requisitioned certain boats belonging to the assessee on charter basis. The statement of the vessels so chartered and income received therefrom during the year was placed before the tribunal. But it is not necessary to refer to the same as it has no bearing on the question of law that we are called upon to decide. The asessees registered office was in Calcutta. It is said that during the accounting year in question, the assessee received Rupees 3,43,138/- as Hire for the boats requisitioned by the Government. But the traffic originated in the areas which are now a part of Pakistan. The question for consideration is whether the receipt of Rs. 3,43,138/- can be brought to tax in this country. For deciding then question, it is necessary to refer to a few more facts: In order to avoid Double Taxation of Income, profits and gains because of the partition of India, the Government of India entered into an Agreement with Pakistan in 1947 in exercise of the powers conferred on it by S. 49 (AA) of the Act, Section 11 (A) of the Excess Profits Tax Act, and S. 18A of the Business Profits Act, 1947 as adapted. That Agreement to the extent material for our present purpose reads thus: "Whereas the Government of the Dominion of India and the Government of the Dominion of Pakistan desire to conclude an agreement for the avoidance of double taxation of income chargeable in the two dominions in accordance with their respective laws: Now therefore, the said two Governments do hereby agree as follows: Article I. xx xx xx Article II. xx xx xx Article III. xx xx xx Article IV. Each Domination shall make assessment in the ordinary way under its own laws; and where either Dominion under the operation of its laws charges any income from the sources or categories of transaction specified in column 1 of the Schedule to this Agreement (hereinafter referred to as Schedule) in excess of the amount calculated according to the percentage specified in columns 2 and 3 thereof, that Dominion shall allow an abatement equal to the lower amount of tax payable on such excess in their Dominion provided for in Article VI. Article V xx xx xx Article VI. (a) For the purposes of the abatement to be allowed under Article IV or V, the tax payable in each Dominion on the excess or the doubly taxed income as the case may be, shall be such proportion of the tax payable in each Dominion as the excess or the doubly taxed income bears to the total income of the assessee in each Dominion. (b) xx xx xx Article VII xx xx xx Article VIII xx xx xx Article IX xx xx xx THE SCHEDULE (See Article IV) Source of income or nature of transaction from which income is derived.Percentage of income which each Dominion is entitled to charge under the agreement.Remarks. (1)(2) (3)(4) 1. x x x 2. x x x 3. x x x 4. x x x 5. Income from business or "other sources":- (a) ... ... (b) ... ... (c) ... ... (d) ... ... (e) ... ... (f) ... ... (g) Transport Ships ...100 per cent., by the Dominion in which the traffic originates.Nil by the other. 6. x x x 7. x x x 8. x x x 9. Any income derived from a source or category of transactions not mentioned in any of the foregoing items of the Schedule.100 per cent., by the Dominion in which the income actually accrues or arisesNil by the other. 4. It appears from the statement of the case that the assessee earned Rs. 3,43,138/- in Calcutta and Rs. 7,296/. in Narayan Ganj (now in Pakisthan) from out of the hire received from the Governments in respect of the boats chartered by them. The Income-tax Officer held that the amount of Rs. 3,43,138/- so received was income earned in Indian Dominion and therefore liable to be brought to tax in this country. In so doing he applied the provisions of Item 9 of the Schedule to the Agreement for Avoidance of Double Taxation. According to the assessee his case fell within item 5 (g) and not item 9. The Income-tax Officer did not accept that contention. In appeal the Appellate Assistant Commissioner agreed with the conclusions reached by the Income-tax Officer but the Income-tax Appellate Tribunal differed from the view taken by the Income-tax Officer, and the Appellate Assistant Commissioner. It came to the conclusion that the receipt in question fell within item 5 (g) of the Agreement and therefore it is not liable to be taxed in this country as admittedly the traffic originated in areas which are now part of Pakistan. As mentioned earlier the High Court agreed with the view taken by the tribunal. 5. It was urged on behalf of the Department by the learned Solicitor-General that there is a distinction between the "Hire" and "Freight". According to him item 5 (g) of the Agreement deals only with "Freight" whereas any "Hire" received would come within item 9. We see no basis for this subtlety. Quite plainly item 5 deals with transport by ships, air and road. Herein we are dealing with income realised as a result of the transport by ships. Item 5 (g) does make any distinction between "Hire" and "Freight". It deals with types of transport by ships. Item 9 is a residuary clause. That item will attracted only if the income, profit or gains earned or received cannot come within any other item. As mentioned earlier, the income with which we are concerned in this case plainly comes within item 5 (g). We agree with the Tribunal and the High Court that the receipt with which we are concerned in this case comes within item 5 (g). 6. For the reasons mentioned earlier, we are of opinion that the High Court correctly answered the questions referred to it.
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5. It was urged on behalf of the Department by the learnedl that there is a distinction between the "Hire" and "Freight". According to him item 5 (g) of the Agreement deals only with "Freight" whereas any "Hire" received would come within item 9. We see no basis for this subtlety. Quite plainly item 5 deals with transport by ships, air and road. Herein we are dealing with income realised as a result of the transport by ships. Item 5 (g) does make any distinction between "Hire" and "Freight". It deals with types of transport by ships. Item 9 is a residuary clause. That item will attracted only if the income, profit or gains earned or received cannot come within any other item. As mentioned earlier, the income with which we are concerned in this case plainly comes within item 5 (g). We agree with the Tribunal and the High Court that the receipt with which we are concerned in this case comes within item 5 (g)6. For the reasons mentioned earlier, we are of opinion that the High Court correctly answered the questions referred to it.
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Gurcharan Singh & Others Vs. Prithi Singh & Others | not be included in the surplus area of Respondent No. 1, as on the crucial date i.e. 15-4-1953, these lands were in the occupation of tenants whose total holdings did not exceed the permissible limit; (iii) That the Commissioner erred in himself calling and examining the Khasra Girdawri, and then without even examining the Patwari who had made the entries therein, in holding, on mere conjectures, that the record had been tampered with. Hearing at the appellate stage was no substitute for hearing at the original enquiry. The Commissioner ought to have remanded the case to the Collector and thus afforded the appellants an opportunity to lead evidence to "re-but" the erroneous view of the Commissioner endorsed in revision by the Financial Commissioner; (iv) That Resondent 1 had represented that he would get the lands sold to the appellants included in his permissible area which had not been reserved or selected by him within the prescribed period. The Collector therefore should have included these lands in the permissible area of Respondent 1. 3. Mr. Manchanda, appearing on behalf of the appellants does not press grounds (i) and (iv) before us. obviously because there is no substance in them. With regard to ground (iii), however, the learned Counsel has vehemently contended that the Commissioner was wrong in brushing aside the Khasra Girdawri - which would have furnished the factual premises of ground (ii) - merely because the binding of the register was untidy or there were suspicious erasures in some entries which were not relevant to this case. Khasra Girdawri - it is stressed - is a public record prepareed by a public servant in the discharge of his official duties, and as such, carries with it a presumption of correctness. It is urged that the case should be remanded to enable the appellants to produce evidence. 4. We find no merit in this contention. A perusal of the Collectors order would show that Mal Singh, General-Attorney of the appellants was present and heard by the Collector. The Collector noted that Mal Singh "alleged somed......purchases, but he has not produced any proof". The Financial Commissioner was therefore, right in observing that "the petitioners were represented before the Collector but did not raise any objection to the declaration of the surplus area". 5. Further, it is noteworthy that in the memorandum of appeal before the Commissioner (which was filed through the said Mal Singh), all that was alleged, was, that the Collector had not allowed the appellants full opportunity to put their case, that since there was no selection and no reservation in this case, the purchasers were entitled to be fitted in the permissible area of the landlord, and that the accounting was wrong inter alia for the reason that the tenancy areas had not been deducted. The material facts constituting the grounds (i), (ii) and (iv), were not pleaded; yet the main contention canvassed was No. (ii) only. The Commissioner could have dismissed the appeal on the short ground that the pleas had not been raised either, before the Collector or in the memo of appeal. It was only as a matter of grace and caution that be suo motu sent for and examined the Khasra Girdawri the object being to find out if the belated point canvassed before him, had a factual basis. The condition of the record, as observed by the Commissioner raised serious doubts about its authenticity. What was intended to be a concession cannot be allowed to be turned into a grievance, particularly when no request was made that the Patwari should be summoned along with his Roznamcha to explain the suspicious features of the Khasra Girdawri.Though Khasra Girdawri record is admissible under S. 35, Evidence Act, yet it may be remembered that the statutory presumption of correctness that attaches to record of rights and Jamabandis under S. 44 of the Punjab Land Revenue Act, does not extend to the Khasra Girdawri. Nor could the optional presumption under Illustration (c) of Section 114, Evidence Act, be invoked specially when on the face of it the record was suspicious.Appellants did not show before the Commissioner - or even before the Financial Commissioner - any adequate reason why they had failed to set up objections or produce evidence in support of their claim, despite the hearing given by the Collector. There was therefore, no justification whatever for remanding the case for a de novo enquiry by the Collector. 6. Nor do we find any force in the contention that since the sales were made, before the permissible area of the vendor (Respondent) had become fixed by voluntary reservation or selection, the lands sold should have been included by the Collector in the permissible area of the vendor in proceedings under S. 5-B (2) of the Act.While it is true that a landowner who fails to reserve or select his permissible area within the prescribed period, cannot exercise that right subsequently, and thereafter it is for the Collector to determine the defaulters permissible and surplus areas, in exercising this power under S. 5-B, the Collector has to act judicially. He is bound to give notice to the landowner, and the transferees from him, if known. Thereafter he has to hear the parties who appear and to take into consideration their representations and then pass such order as may be just. In so exercising his discretion, the Collector may, subject to the adjustment of equities on both sides, include the transferred area in the permissible area or the surplus area of the land-owner. Thus, in the process the Collector is not to ignore altogether the wishes of the landowner. He may accept them to the extent they are consistent with the equities of the case.In the instant case, the appellants did not furnish even the particulars of the purchases made by them much less did they oppose the preference expressed by the landowner being accepted by the Collector. In the circumstances there was no equity in favour of the transferees. | 0[ds]4. We find no merit in this contention. A perusal of the Collectors order would show that Mal Singh,y of the appellants was present and heard by the Collector. The Collector noted that Mal Singh "alleged somed......purchases, but he has not produced any proof". The Financial Commissioner was therefore, right in observing that "the petitioners were represented before the Collector but did not raise any objection to the declaration of the surplus area"5. Further, it is noteworthy that in the memorandum of appeal before the Commissioner (which was filed through the said Mal Singh), all that was alleged, was, that the Collector had not allowed the appellants full opportunity to put their case, that since there was no selection and no reservation in this case, the purchasers were entitled to be fitted in the permissible area of the landlord, and that the accounting was wrong inter alia for the reason that the tenancy areas had not been deducted. The material facts constituting the grounds (i), (ii) and (iv), were not pleaded; yet the main contention canvassed was No. (ii) only. The Commissioner could have dismissed the appeal on the short ground that the pleas had not been raised either, before the Collector or in the memo of appeal. It was only as a matter of grace and caution that be suo motu sent for and examined the Khasra Girdawri the object being to find out if the belated point canvassed before him, had a factual basis. The condition of the record, as observed by the Commissioner raised serious doubts about its authenticity. What was intended to be a concession cannot be allowed to be turned into a grievance, particularly when no request was made that the Patwari should be summoned along with his Roznamcha to explain the suspicious features of the Khasra Girdawri.Though Khasra Girdawri record is admissible under S. 35, Evidence Act, yet it may be remembered that the statutory presumption of correctness that attaches to record of rights and Jamabandis under S. 44 of the Punjab Land Revenue Act, does not extend to the Khasra Girdawri. Nor could the optional presumption under Illustration (c) of Section 114, Evidence Act, be invoked specially when on the face of it the record was suspicious.Appellants did not show before the Commissioneror even before the Financial Commissionerany adequate reason why they had failed to set up objections or produce evidence in support of their claim, despite the hearing given by the Collector. There was therefore, no justification whatever for remanding the case for a de novo enquiry by the Collector6. Nor do we find any force in the contention that since the sales were made, before the permissible area of the vendor (Respondent) had become fixed by voluntary reservation or selection, the lands sold should have been included by the Collector in the permissible area of the vendor in proceedings under S.B (2) of the Act.While it is true that a landowner who fails to reserve or select his permissible area within the prescribed period, cannot exercise that right subsequently, and thereafter it is for the Collector to determine the defaulters permissible and surplus areas, in exercising this power under S., the Collector has to act judicially. He is bound to give notice to the landowner, and the transferees from him, if known. Thereafter he has to hear the parties who appear and to take into consideration their representations and then pass such order as may be just. In so exercising his discretion, the Collector may, subject to the adjustment of equities on both sides, include the transferred area in the permissible area or the surplus area of thelandowner.Thus, in the process the Collector is not to ignore altogether the wishes of thelandowner.He may accept them to the extent they are consistent with the equities of the case.In the instant case, the appellants did not furnish even the particulars of the purchases made by them much less did they oppose the preference expressed by the landowner being accepted by the Collector. In the circumstances there was no equity in favour of the transferees. | 0 | 1,695 | 767 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
not be included in the surplus area of Respondent No. 1, as on the crucial date i.e. 15-4-1953, these lands were in the occupation of tenants whose total holdings did not exceed the permissible limit; (iii) That the Commissioner erred in himself calling and examining the Khasra Girdawri, and then without even examining the Patwari who had made the entries therein, in holding, on mere conjectures, that the record had been tampered with. Hearing at the appellate stage was no substitute for hearing at the original enquiry. The Commissioner ought to have remanded the case to the Collector and thus afforded the appellants an opportunity to lead evidence to "re-but" the erroneous view of the Commissioner endorsed in revision by the Financial Commissioner; (iv) That Resondent 1 had represented that he would get the lands sold to the appellants included in his permissible area which had not been reserved or selected by him within the prescribed period. The Collector therefore should have included these lands in the permissible area of Respondent 1. 3. Mr. Manchanda, appearing on behalf of the appellants does not press grounds (i) and (iv) before us. obviously because there is no substance in them. With regard to ground (iii), however, the learned Counsel has vehemently contended that the Commissioner was wrong in brushing aside the Khasra Girdawri - which would have furnished the factual premises of ground (ii) - merely because the binding of the register was untidy or there were suspicious erasures in some entries which were not relevant to this case. Khasra Girdawri - it is stressed - is a public record prepareed by a public servant in the discharge of his official duties, and as such, carries with it a presumption of correctness. It is urged that the case should be remanded to enable the appellants to produce evidence. 4. We find no merit in this contention. A perusal of the Collectors order would show that Mal Singh, General-Attorney of the appellants was present and heard by the Collector. The Collector noted that Mal Singh "alleged somed......purchases, but he has not produced any proof". The Financial Commissioner was therefore, right in observing that "the petitioners were represented before the Collector but did not raise any objection to the declaration of the surplus area". 5. Further, it is noteworthy that in the memorandum of appeal before the Commissioner (which was filed through the said Mal Singh), all that was alleged, was, that the Collector had not allowed the appellants full opportunity to put their case, that since there was no selection and no reservation in this case, the purchasers were entitled to be fitted in the permissible area of the landlord, and that the accounting was wrong inter alia for the reason that the tenancy areas had not been deducted. The material facts constituting the grounds (i), (ii) and (iv), were not pleaded; yet the main contention canvassed was No. (ii) only. The Commissioner could have dismissed the appeal on the short ground that the pleas had not been raised either, before the Collector or in the memo of appeal. It was only as a matter of grace and caution that be suo motu sent for and examined the Khasra Girdawri the object being to find out if the belated point canvassed before him, had a factual basis. The condition of the record, as observed by the Commissioner raised serious doubts about its authenticity. What was intended to be a concession cannot be allowed to be turned into a grievance, particularly when no request was made that the Patwari should be summoned along with his Roznamcha to explain the suspicious features of the Khasra Girdawri.Though Khasra Girdawri record is admissible under S. 35, Evidence Act, yet it may be remembered that the statutory presumption of correctness that attaches to record of rights and Jamabandis under S. 44 of the Punjab Land Revenue Act, does not extend to the Khasra Girdawri. Nor could the optional presumption under Illustration (c) of Section 114, Evidence Act, be invoked specially when on the face of it the record was suspicious.Appellants did not show before the Commissioner - or even before the Financial Commissioner - any adequate reason why they had failed to set up objections or produce evidence in support of their claim, despite the hearing given by the Collector. There was therefore, no justification whatever for remanding the case for a de novo enquiry by the Collector. 6. Nor do we find any force in the contention that since the sales were made, before the permissible area of the vendor (Respondent) had become fixed by voluntary reservation or selection, the lands sold should have been included by the Collector in the permissible area of the vendor in proceedings under S. 5-B (2) of the Act.While it is true that a landowner who fails to reserve or select his permissible area within the prescribed period, cannot exercise that right subsequently, and thereafter it is for the Collector to determine the defaulters permissible and surplus areas, in exercising this power under S. 5-B, the Collector has to act judicially. He is bound to give notice to the landowner, and the transferees from him, if known. Thereafter he has to hear the parties who appear and to take into consideration their representations and then pass such order as may be just. In so exercising his discretion, the Collector may, subject to the adjustment of equities on both sides, include the transferred area in the permissible area or the surplus area of the land-owner. Thus, in the process the Collector is not to ignore altogether the wishes of the landowner. He may accept them to the extent they are consistent with the equities of the case.In the instant case, the appellants did not furnish even the particulars of the purchases made by them much less did they oppose the preference expressed by the landowner being accepted by the Collector. In the circumstances there was no equity in favour of the transferees.
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4. We find no merit in this contention. A perusal of the Collectors order would show that Mal Singh,y of the appellants was present and heard by the Collector. The Collector noted that Mal Singh "alleged somed......purchases, but he has not produced any proof". The Financial Commissioner was therefore, right in observing that "the petitioners were represented before the Collector but did not raise any objection to the declaration of the surplus area"5. Further, it is noteworthy that in the memorandum of appeal before the Commissioner (which was filed through the said Mal Singh), all that was alleged, was, that the Collector had not allowed the appellants full opportunity to put their case, that since there was no selection and no reservation in this case, the purchasers were entitled to be fitted in the permissible area of the landlord, and that the accounting was wrong inter alia for the reason that the tenancy areas had not been deducted. The material facts constituting the grounds (i), (ii) and (iv), were not pleaded; yet the main contention canvassed was No. (ii) only. The Commissioner could have dismissed the appeal on the short ground that the pleas had not been raised either, before the Collector or in the memo of appeal. It was only as a matter of grace and caution that be suo motu sent for and examined the Khasra Girdawri the object being to find out if the belated point canvassed before him, had a factual basis. The condition of the record, as observed by the Commissioner raised serious doubts about its authenticity. What was intended to be a concession cannot be allowed to be turned into a grievance, particularly when no request was made that the Patwari should be summoned along with his Roznamcha to explain the suspicious features of the Khasra Girdawri.Though Khasra Girdawri record is admissible under S. 35, Evidence Act, yet it may be remembered that the statutory presumption of correctness that attaches to record of rights and Jamabandis under S. 44 of the Punjab Land Revenue Act, does not extend to the Khasra Girdawri. Nor could the optional presumption under Illustration (c) of Section 114, Evidence Act, be invoked specially when on the face of it the record was suspicious.Appellants did not show before the Commissioneror even before the Financial Commissionerany adequate reason why they had failed to set up objections or produce evidence in support of their claim, despite the hearing given by the Collector. There was therefore, no justification whatever for remanding the case for a de novo enquiry by the Collector6. Nor do we find any force in the contention that since the sales were made, before the permissible area of the vendor (Respondent) had become fixed by voluntary reservation or selection, the lands sold should have been included by the Collector in the permissible area of the vendor in proceedings under S.B (2) of the Act.While it is true that a landowner who fails to reserve or select his permissible area within the prescribed period, cannot exercise that right subsequently, and thereafter it is for the Collector to determine the defaulters permissible and surplus areas, in exercising this power under S., the Collector has to act judicially. He is bound to give notice to the landowner, and the transferees from him, if known. Thereafter he has to hear the parties who appear and to take into consideration their representations and then pass such order as may be just. In so exercising his discretion, the Collector may, subject to the adjustment of equities on both sides, include the transferred area in the permissible area or the surplus area of thelandowner.Thus, in the process the Collector is not to ignore altogether the wishes of thelandowner.He may accept them to the extent they are consistent with the equities of the case.In the instant case, the appellants did not furnish even the particulars of the purchases made by them much less did they oppose the preference expressed by the landowner being accepted by the Collector. In the circumstances there was no equity in favour of the transferees.
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Umrao Singh Ajit Singhji & Anr Vs. Bhagwati Singh Balbir Singh Minor & Ors | shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil natur excepting suits of which their cognizance is either expressly or impliedly barred.Explanation - A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies."6. The learned counsel for the appellants contended that the suit instituted by the plaintiffs being of a civil nature, civil Courts had jurisdiction to entertain it and the District Judge and the High Court were in error in holding that their jurisdiction was either expressly or impliedly barred. In our opinion this contention is not well founded. It is true that there is no. express statutory provision barring the jurisdiction of the civil Courts regarding suits of this nature, but it is equally clear that their jurisdiction to entertain suits of this nature is impliedly barred.7. In para 2 of the plaint it was alleged that in the absence of a real son in the line of succession to the Gaddi of Indergarh, the members of the family of Chhapol, on account of being of the same Gotra as that of the jagirdars of Indergarh, i.e., Bhagatsinghot Gotra, were the nearest of kin to them, and on account of this the ruler of Kotah, who held sovereign powers over Indergrah, had continued to accord his sanction in respect of their succession.In para 3 it was said that the late Maharaja Sumer Singhji himself, from Thikana Chhapol, with the sanction of Maharao Sahib Kotah, was taken as successor to Indergarh, on the death of Maharaja Sher Singh, without a male issue, and that Maharaja Sher Singhji, also in the same manner, on the death of Maharaja Sangram Singhji, dying without a male issue, was taken from Thikana Chhapol, as successor to Indergarh.The plaintiffs case thus is clearly funded on the plea that the succession to the Gaddi of Indergarh was determined by the ruler of Kotah in his capacity as sovereign. It is not even alleged in the plaint that the jagir is hereditary in nature or that the sanction of the Maharao was a mere formality. After the integration of Rajasthan the sovereign right exercised by the Maharao of Kotah in this respect was dealt with by Art. 7(3) of the Covenant entered into between the rules of the different States of Rajasthan including Kotah. This Covenant is in these terms :"Article VII (3) - Unless other provision is made by an Act of the Legislature of the United State, the right to resume jagirs or to recognise succession, according to law and custom, to the rights and titles of the jagirdars shall vest exclusively in the Rajpramukh".The Rajpramukh, in exercise of this power, on 1-12-1949 recognised Maharaja Bhagwati Singhji, second son of Maharaja Balbir Singhji of Khatoli and adopted son of the late Maharaja Sumer Singhji of Indergarh as successor to the later Maharaja Sahib of Indergarh. The words of the Covenant are unambiguous except the Rajpramukh of Rajasthan will be competent to decide the question of succession. That being so, no. suit can be maintained in a civil Court to direct a sovereign to perform his sovereign duties in a particular manner.The power of recognizing an heir to the Gaddi of Indergarh which was one exercised by the Maharao of Kotah and which is now being exercised by the Rajpramukh of Rajasthan, is political in character and is an incident of sovereignty, and a matter that has to be exclusively settled in exercise of such a power cannot possibly be the subject of adjudication in a civil Court.8. As above pointed out, no. averment has been made in the plaint that the jagir was a hereditary one and was not resumable after the death of the last holder. No. facts have been placed on record defining the incidents of this jagir . Ordinarily a jagir is an assignment in land or money for the support of a certain dignity and for the troops annexed thereto. It is either conditional or unconditional.The assignment is for a stated term, and more usually, it is for the lifetime of the holder, lapsing on his death, to the State although no. unusually renewed to his heir, on payment of a nazarana or fine. It is sometimes specified to be a hereditary one. In Gulabdas Jugjivandas v Collector of Surat, 3 Bom 186 (A), their Lordships of the Privy Council held that a jagir must be taken prima facie to be an estate only for life, although it may possibly be granted in such terms as to make it hereditary.In the absence of any evidence to the contrary it has to be assumed that the (Jan). 1956 S. C. /3&4.Indergarh jagir was resumable after the death of the last holder and it was in exercise of sovereign rights that the Maharao of Kotah recognized the adoption of Bhagwati Singh and the Rajpramukh of Rajasthan in exercise of the same right recognized him as an heir to the last Jagirdar. Even if the jagir was of a hereditary nature, it seems clear that the Maharao of Kotah was admittedly the sole arbiter for determining the question of succession to the Gaddi according to law and custom and that exclusive power, by the binding force of the Covenant, has passed to the Rajpramukh of Rajasthan.In this view of the case the rule laid down by their Lordships of the Privy Council in -Sultan Sani v. Ajmodin 20 Ind App 50 (PC) (B) is attracted to this case. Therein their Lordships expressed the opinion that the question to whom a saranjam or jagir shall be granted upon the death of its holder is one which belongs exclusively to the Government, to be determined upon political consideration, and that it is not within them competency of any legal tribunal to review the decision which the Government may pronounce. | 0[ds]6. The learned counsel for the appellants contended that the suit instituted by the plaintiffs being of a civil nature, civil Courts had jurisdiction to entertain it and the District Judge and the High Court were in error in holding that their jurisdiction was either expressly or impliedlybarred. In our opinion this contention is not well founded. It is true that there is no. express statutory provision barring the jurisdiction of the civil Courts regarding suits of this nature, but it is equally clear that their jurisdiction to entertain suits of this nature is impliedlywords of the Covenant are unambiguous except the Rajpramukh of Rajasthan will be competent to decide the question of succession. That being so, no. suit can be maintained in a civil Court to direct a sovereign to perform his sovereign duties in a particular manner.The power of recognizing an heir to the Gaddi of Indergarh which was one exercised by the Maharao of Kotah and which is now being exercised by the Rajpramukh of Rajasthan, is political in character and is an incident of sovereignty, and a matter that has to be exclusively settled in exercise of such a power cannot possibly be the subject of adjudication in a civilthe absence of any evidence to the contrary it has to be assumed that the (Jan). 1956 S. C. /3&4.Indergarh jagir was resumable after the death of the last holder and it was in exercise of sovereign rights that the Maharao of Kotah recognized the adoption of Bhagwati Singh and the Rajpramukh of Rajasthan in exercise of the same right recognized him as an heir to the last Jagirdar. Even if the jagir was of a hereditary nature, it seems clear that the Maharao of Kotah was admittedly the sole arbiter for determining the question of succession to the Gaddi according to law and custom and that exclusive power, by the binding force of the Covenant, has passed to the Rajpramukh of Rajasthan.In this view of the case the rule laid down by their Lordships of the Privy Council inSultan Sani v. Ajmodin 20 Ind App 50 (PC) (B) is attracted to this case. Therein their Lordships expressed the opinion that the question to whom a saranjam or jagir shall be granted upon the death of its holder is one which belongs exclusively to the Government, to be determined upon political consideration, and that it is not within them competency of any legal tribunal to review the decision which the Government may pronounce. | 0 | 1,569 | 449 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil natur excepting suits of which their cognizance is either expressly or impliedly barred.Explanation - A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies."6. The learned counsel for the appellants contended that the suit instituted by the plaintiffs being of a civil nature, civil Courts had jurisdiction to entertain it and the District Judge and the High Court were in error in holding that their jurisdiction was either expressly or impliedly barred. In our opinion this contention is not well founded. It is true that there is no. express statutory provision barring the jurisdiction of the civil Courts regarding suits of this nature, but it is equally clear that their jurisdiction to entertain suits of this nature is impliedly barred.7. In para 2 of the plaint it was alleged that in the absence of a real son in the line of succession to the Gaddi of Indergarh, the members of the family of Chhapol, on account of being of the same Gotra as that of the jagirdars of Indergarh, i.e., Bhagatsinghot Gotra, were the nearest of kin to them, and on account of this the ruler of Kotah, who held sovereign powers over Indergrah, had continued to accord his sanction in respect of their succession.In para 3 it was said that the late Maharaja Sumer Singhji himself, from Thikana Chhapol, with the sanction of Maharao Sahib Kotah, was taken as successor to Indergarh, on the death of Maharaja Sher Singh, without a male issue, and that Maharaja Sher Singhji, also in the same manner, on the death of Maharaja Sangram Singhji, dying without a male issue, was taken from Thikana Chhapol, as successor to Indergarh.The plaintiffs case thus is clearly funded on the plea that the succession to the Gaddi of Indergarh was determined by the ruler of Kotah in his capacity as sovereign. It is not even alleged in the plaint that the jagir is hereditary in nature or that the sanction of the Maharao was a mere formality. After the integration of Rajasthan the sovereign right exercised by the Maharao of Kotah in this respect was dealt with by Art. 7(3) of the Covenant entered into between the rules of the different States of Rajasthan including Kotah. This Covenant is in these terms :"Article VII (3) - Unless other provision is made by an Act of the Legislature of the United State, the right to resume jagirs or to recognise succession, according to law and custom, to the rights and titles of the jagirdars shall vest exclusively in the Rajpramukh".The Rajpramukh, in exercise of this power, on 1-12-1949 recognised Maharaja Bhagwati Singhji, second son of Maharaja Balbir Singhji of Khatoli and adopted son of the late Maharaja Sumer Singhji of Indergarh as successor to the later Maharaja Sahib of Indergarh. The words of the Covenant are unambiguous except the Rajpramukh of Rajasthan will be competent to decide the question of succession. That being so, no. suit can be maintained in a civil Court to direct a sovereign to perform his sovereign duties in a particular manner.The power of recognizing an heir to the Gaddi of Indergarh which was one exercised by the Maharao of Kotah and which is now being exercised by the Rajpramukh of Rajasthan, is political in character and is an incident of sovereignty, and a matter that has to be exclusively settled in exercise of such a power cannot possibly be the subject of adjudication in a civil Court.8. As above pointed out, no. averment has been made in the plaint that the jagir was a hereditary one and was not resumable after the death of the last holder. No. facts have been placed on record defining the incidents of this jagir . Ordinarily a jagir is an assignment in land or money for the support of a certain dignity and for the troops annexed thereto. It is either conditional or unconditional.The assignment is for a stated term, and more usually, it is for the lifetime of the holder, lapsing on his death, to the State although no. unusually renewed to his heir, on payment of a nazarana or fine. It is sometimes specified to be a hereditary one. In Gulabdas Jugjivandas v Collector of Surat, 3 Bom 186 (A), their Lordships of the Privy Council held that a jagir must be taken prima facie to be an estate only for life, although it may possibly be granted in such terms as to make it hereditary.In the absence of any evidence to the contrary it has to be assumed that the (Jan). 1956 S. C. /3&4.Indergarh jagir was resumable after the death of the last holder and it was in exercise of sovereign rights that the Maharao of Kotah recognized the adoption of Bhagwati Singh and the Rajpramukh of Rajasthan in exercise of the same right recognized him as an heir to the last Jagirdar. Even if the jagir was of a hereditary nature, it seems clear that the Maharao of Kotah was admittedly the sole arbiter for determining the question of succession to the Gaddi according to law and custom and that exclusive power, by the binding force of the Covenant, has passed to the Rajpramukh of Rajasthan.In this view of the case the rule laid down by their Lordships of the Privy Council in -Sultan Sani v. Ajmodin 20 Ind App 50 (PC) (B) is attracted to this case. Therein their Lordships expressed the opinion that the question to whom a saranjam or jagir shall be granted upon the death of its holder is one which belongs exclusively to the Government, to be determined upon political consideration, and that it is not within them competency of any legal tribunal to review the decision which the Government may pronounce.
### Response:
0
### Explanation:
6. The learned counsel for the appellants contended that the suit instituted by the plaintiffs being of a civil nature, civil Courts had jurisdiction to entertain it and the District Judge and the High Court were in error in holding that their jurisdiction was either expressly or impliedlybarred. In our opinion this contention is not well founded. It is true that there is no. express statutory provision barring the jurisdiction of the civil Courts regarding suits of this nature, but it is equally clear that their jurisdiction to entertain suits of this nature is impliedlywords of the Covenant are unambiguous except the Rajpramukh of Rajasthan will be competent to decide the question of succession. That being so, no. suit can be maintained in a civil Court to direct a sovereign to perform his sovereign duties in a particular manner.The power of recognizing an heir to the Gaddi of Indergarh which was one exercised by the Maharao of Kotah and which is now being exercised by the Rajpramukh of Rajasthan, is political in character and is an incident of sovereignty, and a matter that has to be exclusively settled in exercise of such a power cannot possibly be the subject of adjudication in a civilthe absence of any evidence to the contrary it has to be assumed that the (Jan). 1956 S. C. /3&4.Indergarh jagir was resumable after the death of the last holder and it was in exercise of sovereign rights that the Maharao of Kotah recognized the adoption of Bhagwati Singh and the Rajpramukh of Rajasthan in exercise of the same right recognized him as an heir to the last Jagirdar. Even if the jagir was of a hereditary nature, it seems clear that the Maharao of Kotah was admittedly the sole arbiter for determining the question of succession to the Gaddi according to law and custom and that exclusive power, by the binding force of the Covenant, has passed to the Rajpramukh of Rajasthan.In this view of the case the rule laid down by their Lordships of the Privy Council inSultan Sani v. Ajmodin 20 Ind App 50 (PC) (B) is attracted to this case. Therein their Lordships expressed the opinion that the question to whom a saranjam or jagir shall be granted upon the death of its holder is one which belongs exclusively to the Government, to be determined upon political consideration, and that it is not within them competency of any legal tribunal to review the decision which the Government may pronounce.
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Gadakh Yashwantrao Kankarrao Vs. E. V. Alias Balasaheb Vikhe Patil & Others | present trend of election campaign and this trend must be reversed to make the democracy more meaningful by ensuring purity of elections which can be achieved only by a shift in the trend towards the right direction.77. Judging by these standards, we are constrained to observe that some of the statements made by Sharad Pawar, the Chief Minister of Maharashtra, even though not amounting to corrupt practice under the enacted law, do not measure up to the desired level of electioneering at the top echelon of political leadership to set the trend for a healthy election campaign. His suggestion to the voters to accept monies etc., if distributed by a candidate, without being influenced thereby as a means of propagating socialism exhibits a bizarre perception of socialism. It is shocking enough that Gadakh said so but far worse to find the Chief Minister endorse that view. Intended as sarcasm it depicts poor taste. If this be the level of election campaign at the top, it is bound to degenerate as it descends to the lower levels. Some portions of the speeches of Sharad Pawar were indeed high precept but the electorate would have benefited more by knowledge of the track record of the preachers practice of the same. There was no such attempt. The degree of responsibility and the level of electioneering expected of the top leadership was wanting in these speeches. If probity in public life is to be maintained and purity of elections is not a myth or mere catch-phrase, a higher level of electioneering is expected at least at the highest level of political leadership.78. It is with this not of caution we say that all the statements attributed to Sharad Pawar and many attributed to Gadakh do not constitute the alleged corrupt practice under Section 123(4) of the R.P. Act. Accordingly, the notice issued under Section 99 to Sharad Pawar should have been discharged by the High Court instead of Sharad Pawar being named for commission of any such corrupt practice. FURTHER RELIEF UNDER SECTION 101(b) OF THE R.P. ACT 79. The further relief granted by the High Court of declaring Vikhe Patil to have been duly elected after declaring the election of Gadakh to be void is clearly unsustainable. This further relief declaring Vikhe Patil to have been duly elected has been granted under Section 101 of the R.P. Act which read as under : "101. Grounds for which a candidate other than the returned candidate may be declared to have been elected. - If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion - (a) that in fact the petitioner or such other candidate received a majority of the valid votes; or (b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the High Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected." * Obviously it is clause (b) of Section 101 under which the further relief in the present case can be justified. To justify this further relief, it must be held that but for the votes obtained by Gadakh by the corrupt practice committed under Section 123(4) of the R.P. Act, Vikhe Patil would have obtained a majority of the valid votes. The High Court has taken the view that the election of Gadakh being void Vikhe Patil who polled the next highest number of votes must be declared to have been duly elected. There is no discernible cogent reason in the High Courts judgment to support this conclusion. 80. In Konappa Rudrappa Nadgouda v. Vishwanath Reddy the Constitution Bench pointed out the cases falling under Section 101(b) in which this further declaration can be made. It was held therein as under : (SCC pp. 95-96). "We are again unable to see any logic in the assumption that votes cast in favour of a person who is regarded by the Returning Officer as validly nominated, but who is in truth disqualified, could still be treated as valid votes, for the purpose of determining whether a fresh election should be held. When there are only two contesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown way, irrespective of whether the voters who voted for him were aware of the disqualification. This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate." * (emphasis supplied) 81. The law applicable being as above, the mere fact that Vikhe Patil secured the next highest number of votes after Gadakh is not sufficient to declare him elected on the conclusion that Gadakhs election is void for commission of a corrupt practice. The High Court proceeded on an erroneous assumption to grant this further relief under Section 101(b) of the R.P. Act declaring Vikhe Patil to have been duly elected. Shri P. P. Rao, with his usual fairness, in our view rightly, did not seriously support the grant of this further relief declaring Vikhe Patil to have been duly elected, on account of the absence of the requisite evidence to support the grant of this further declaration in the present case. No further consideration of this point is, therefore, necessary. | 1[ds]15. In the present case, the larger question posed by Shri Ram Jethmalani does not arise for consideration and, therefore, we need not express herein any concluded opinion thereon. We may only observe that the proposition enunciated by Shri Ram Jethmalani is too wide for acceptance even in the existing political climate adverted to by the learned counsel unless the election law leads to that inevitable conclusion exposing a hiatus in the legislative effort to achieve the avowed object of purity of elections. We would also like to observe that the suggestion of a liberal construction of the election law relating to corrupt practices by appreciation of evidence in the manner suggested in the existing political climate whereinis commonplace, does not commend to us as the proper approach envisaged by the election law. If purity of elections is the essence of democracy and providing for invalidation of an election on the ground of commission of any corrupt practice is the object of enacting these provisions, it cannot be accepted that the election scene having degenerated over the years, appreciation of evidence for determining the commission of a corrupt practice must be made liberally because of the lower values in the arena of elections. If the rule of law has to be preserved as the essence of democracy of which purity of elections is a necessary concomitant, it is the duty of the courts to appreciate the evidence and construe the law in a manner which would subserve this higher purpose and not even imperceptibly facilitate acceptance, much less affirmance, of the falling electoral standards. For democracy to survive, rule of law must prevail, and it is necessary that the best available men should be chosen as peoples representatives for proper governance of the country. This can best be achieved through men of high moral and ethical values who win the elections on a positive vote obtained on their own merit and not by the negative vote of process of elimination based on comparative demerits of the candidates. It is also necessary that the impact of money power which has eliminated from electoral contest many men of undoubted ability and credibility for want or requisite financial support should be able tothe field to make the peoples choice meaningful. This can be achieved only if elections are contested on a positive vote and the comparison is between the merits and abilities of the contestants without the influence of power and pelf and not between their comparative demerits and the support of money power. Apart from the other adverse consequences, the growing influence of money power has also the effect of promoting criminalisation of politics.16. The increasing electoral malpractices, of which some likehave led even to amendment of the election law, make availability of evidence difficult and this cannot be ignored while applying the standard of proof of acharge for the proof of a corrupt practice. The existing law does not measure up to the existing realities. The ceiling on expenditure is fixed only in respect of the expenditure incurred or authorised by the candidate himself but the expenditure incurred by the party or anyone else in his election campaign is safely outside the net of legal sanction. The spirit of the provision suffers violation through the escape route. The prescription of ceiling on expenditure by a candidate is a mereand no practical check on election expenses for which it was enacted to attain a meaningful democracy. This lacuna in the law is, however, for the Parliament to fill lest the impression is reinforced that its retention is deliberate for the convenience of everyone. If this be not feasible, it may be advisable to omit the provision to prevent the resort to indirect methods for its circumvention and subversion of the law, accepting without any qualm the role of money power in the elections. This provision has ceased to be even a fig leaf to hide the reality.17. We are constrained to make these observations on account of the repeated reference made at the hearing to the growing malpractices during elections, even though it was made for the purpose of persuading us not to attach any significance to statements relating to the personal character or conduct of a candidate since they are not taken seriously by the voters due to the falling ethical standard.18. Real education of the electorate contemplates informing them of the past achievements and future plans of the political party on a positive note and its candidates qualifications to serve that purpose compared with those of the other political parties and their candidates and not a projection of the comparative greater demerits of the opponents. This is with a view to emphasise that the functioning of the democracy depends on the quality of the men chosen for the governance of the country. This is the need which the election campaign is meant to serve in an election based on party lines, the qualifications of the candidates being material for this purpose.19. The duty at the top echelons of leadership at the state and national levels of all political parties is to set the trend for giving the needed information to the electorate by adopting desirable standards so that it percolates to the lower levels and provides a congenial atmosphere for a free and fair poll. A contrary trend of speeches by the top leaders tends to degenerate the election campaign as it descends to the lower levels and at times promotes even violence leading to criminalisation of politics. The growth of this unhealthy trend is a cause for serious concern for the proper functioning of the democracy and it is the duty of the top leaders of all political parties to reverse this trend to enable movement of the functioning democracy in the proper direction.20. The lament of Gadakh and Sharad Pawar of despair against the financial might of Vikhe Patil was indeed farcical and sounds comical in view of their own considerable resources including the power of the ruling party and the active support of the Chief Minister of the State. We cannot accept that the alleged offending portions of the speeches of Gadakh and Sharad Pawar were educative of the electorate even if they do not constitute the corrupt practice under Section 123(4) of the R.P. Act. To suggest that the electorate needs to be warned against the purchase of votes by anyone is to insult their intelligence. Past experience has shown that even the illiterate section of the electorate is educated enough to remain uninfluenced by power and pelf. This it has shown more than once by rejecting the high and the mighty in power when it felt that they had failed to discharge their true obligation.21. We must also add that even if we come to the conclusion that these statements or any of them do not constitute the corrupt practice under Section 123(4), it only means that the existing law does not frown upon the same to visit it with any adverse consequence, but that does not mean that it is a desirable practice during the election campaign. It is one thing to say that a statement does not constitute corrupt practice but entirely different to suggest that it is a desirable electoral practice forming a part of the programme for education of the electorate.22. We emphasise this fact on account of the vehemence with which Shri Ram Jethmalani canvassed for acceptance of the view that all these statements are within the permissible electoral practice, necessary for education of the electorate. We are unable to subscribe to this view which can only lead to a further degeneration of the waning morality in the electoral scene, when the felt need is for curbing any such tendency to ensure purity of elections.It is clear that every statement of fact in relation to the personal character or conduct of any candidate does not amount to a corrupt practice under Section 123(4) unless all the requirements of the provision are satisfied, notwithstanding the fact the such a statement may be defamatory in character. The additional requirements to constitute a corrupt practice are obviously to maintain the delicate balance between the freedom of speech of an individual and public interest of giving full information to the electorate of the candidates. There is no presumption of falsity of such a statement of fact for the purpose of Section 123(4) as it is under the law of defamation; and apart from proving the statement of fact to be false, it must also be shown that the maker of the statement either believed it to be false or did not believe it to be true. Irrespective of the quantum of evidence necessary to discharge the initial onus of leading evidence, the burden of proving these requirements on the evidence adduced remains on the person alleging commission of the corrupt practice. The object of making this provision more stringent is to emphasise the significance of freedom of speech in this sphere while prohibiting the making of such statements of fact relating to the personal character or conduct of any candidate which are not merely false but which are also believed to be false or not believed to be true by the maker. The greater latitude in election law is meant to servant the public purpose if the statement found to be false is made with the belief in its truth based on reasonable grounds and it is not intended to be a licence for making a scurrilous attack on the opponents recklessly.30. The primary requirements of Section 123(4) are that the statement should be a statement of fact which is false, and which the maker either "believes to be false" or "does not believe to be true". If these requirements are not satisfied, the further inquiry to ascertain the satisfaction of the remaining requirements of Section 123(4) serves no useful purpose. No doubt, the burden of proving the satisfaction of all these requirements is on him who alleges commission of the corrupt practice. The onus of leading evidence relating to some requirements is however light in view of their nature. Once the initial onus is discharged, the onus shifts to the other side. For proving the statement of fact to be false, the initial onus is discharged and the burden shifts to the other side by assertion of its falsity on oath whereafter it is for other side to rebut the same. Similarly, the nature of belief of the maker being primarily related to the state of mind of the maker, the initial burden is discharged by an assertion on oath to that effect. If there be any circumstances relevant for proving and justifying the belief of the maker, that also would be a matter of evidence. The maker of the statement knows best the material on which his belief was formed and, therefore, it is for him to prove the same. Whether the maker of the statement believed it to be false or did not believe it to be true, is then ordinarily a matter of inference from the facts so proved.31. The meaning of the expression "statement of fact" was a point of considerable debate at the Bar. The true meaning of this expression is of significance because several statements attributed to Gadakh and Sharad Pawar relate to apprehensions about Vikhe Patils likely future conduct and not to his acts done in the past or at the time of making the statement. Itwas contended by Shri Ashok Desai for Gadakh and Shri K. Parasaran for Sharad Pawar that every statement is not a statement of fact and, therefore, a statement made about future apprehension or opinion of the maker, does not fall within the ambit of this expression. It was urged by them that most of the statements attributed to Gadakh and all the statements attributed to Sharad Pawar do not constitute statement of fact within the meaning of this expression in SectionShri P. P. Rao,expression.32. There can be no dispute that the meaning of the expression "statement of fact" used in Section 123(4), must be such which is apposite in the context and even if the meaning of the word fact be wider to include opinion about another person and apprehensions about his future conduct, that is not sufficient to so construe the expression "statement of fact" in this provision unless it fits in the context. A pragmatic test is to examine whether the meaning given to the expression "statement of fact" is capable of satisfying the other requirements of the provision. It is only that meaning of this expression which is capable of satisfying the other requirements of the provision which can be its true meaning in the context.33. For constituting the corrupt practice in Section 123(4), all the requirements thereof must be satisfactorily proved. A statement of fact for the purpose of Section 123(4) can be one which is capable of proof as false and which the maker either believed to be false or did not believe to be true at the time of making it. These further requirements of its falsity and nature of belief of the maker at the time of making the statement of fact are essential requirements without which the statement of fact is not the one contemplated by Section 123(4). It needs no elaboration to say that a statement of fact can be proved to be false only if it relates to an event which has happened and not to a hypothetical future possibility. Similarly, the belief of the maker about its falsity or the lack of belief in its truth relates to an existing fact and not to a hypothetical future apprehension howsoever honestly one may believe in its likelihood. It is clear that any statement made which is a conjecture of a likelihood in future, would not come within the ambit of the expression "statement of fact" used in Section 123(4). This is also supported by the fact that another requirement of Section 123(4) is that the statement of fact made should be "reasonably calculated to prejudice the prospects of that candidates election". This further requirement cannot be satisfied by merely stating a likely apprehension for the future and if the event does not happen, this requirement cannot be tested. It is a different matter if the statement amounts to an opinion relating to the personal character or conduct of any candidate which is based on existing or past acts of the candidate. In other words, if the statement made is that a candidate is a murderer, that would imply that he had committed a murder and that amounts to a statement of fact for the purpose of Section 123(4).The consent of the candidate for the purposes of Section 123(4) when the offending statement of fact which is false is published by any other person may be proved by inference from the circumstances and not necessarily by positive evidence to that effect since positive evidence of consent may not be available. (See B. R. Rao v. N. G. Ranga Narasingh Charan Mohanty v. Surendra Mohanty and Samant N. Balakrishna v. GeorgeTwo statements attributed to Gadakh related to the payments by Vikhe Patil of Rs. 50 lakhs to the Janata Dal election fund and Rs. 20 lakhs to the Janata Dal candidate B. G. Kolse Patil. Gadakh is alleged to have said that Vikhe Patil had paid Rs. 50 lakhs to the Janata Dal election fund for getting the support of that party and Rs. 20 lakhs to the Janata Dal candidate for withdrawing his nomination from this constituency and shifting to another constituency. These statements are alleged to have been made by Gadakh more than once. However, it is sufficient if such a statement is proved to have been made even once and it satisfies all the requirements of Section 123(4). The particulars of these statements have been given earlier.50. The statement alleging payment of Rs. 50 lakhs to the Janata Dal election fund is alleged to have been made in the meetings at Sonai on April 30, 1991 and Ahmednagar on May 2, 1991 as well as in the interview given by Gadakh on May 10, 1991 to Girish Kulkarni (PW 11) which was published in the Maharashtra Times of May 13, 1991. The statement by Gadakh of payment of Rs. 20 lakhs to the Janata Dal candidate B. G. Kolse Patil for withdrawing from this constituency and shifting to another constituency is alleged to have been made in the meeting at Sonai on April 30, 1991 and in the interview given by him to Girish Kulkarni on May 10, 1991 which was published in the Maharashtra Times of May 13, 1991. From the evidence adduced, the making of both these statements is amply proved and we agree with the finding of the High Court to this effect on this point. Shri Ashok Desai took us through the entire evidence on the point and strenuously urged that these statements are not duly proved but we are unable to accept this contention. From the evidence adduced we have no doubt that these statements were made by Gadakh as alleged by Vikhe Patil. Admitted contemporaneous news reports and the conduct of Gadakh after knowing their contents further reassures us that these statements were made by Gadakh. Accordingly, we are referring only to some significant evidence on the point.51. The statement of Gadakh alleging payment of Rs. 50 lakhs by Vikhe Patil to Janata Dal election fund does not necessarily imply that this payment to Janata Dal was for shifting its candidate to another constituency particularly when no other details were given. There is no such clear pleading in the election petition to that effect. This statement has, therefore, to be examined as the allegation of contribution to the election fund of a political party. There is no allegation that this payment was alleged to have been made at any time after Vikhe Patil had become a candidate at the election. In these circumstances, it is doubtful if the mere allegation of contribution to a political partys election fund prior to becoming a candidate can amount to the corrupt practice under Section 123(4) of the R.P. Act.52. The position, however, is different with regard to the allegation of payment of Rs. 20 lakhs to the Janata Dal candidate B. G. Kolse Patil for withdrawing from this constituency and shifting to another constituency. Vikhe Patil has denied on oath the making of any of these payments by him. Each of these statements is undoubtedly a statement of fact which is also proved to be false since there is no attempt made by Gadakh to prove it to be true by rebuttal of the testimony of Vikhe Patil on this point. Obviously Vikhe Patil was not required to examine B. G. Kolse Patil after his own denial on oath. No attempt has been made by Gadakh to even suggest that the allegation is true.Vikhe Patil had denied the payment of Rs. 20 lakhs to B. G. Kolse Patil and also asserted that Gadakh while making the statement did not believe it to be true. This is all that could be done by Vikhe Patil to prove the belief of Gadakh at the time of making the statement since that related to the state of mind of Gadakh which he knew best. Even though the burden on the pleadings to prove the satisfaction of this requirement was throughout on Vikhe Patil, the election petitioner, yet the initial burden of leading evidence of that fact on Vikhe Patil was clearly discharged in this manner shifting the burden of rebutting the same to Gadakh. The evidence of Gadakh has, therefore, to be now examined to see if the burden so shifted to Gadakh had been discharged by his evidence. It is significant that in the deposition of Gadakh, there are statements on this point which provide the best indication of his belief about the truth or falsity of the allegation made. In our opinion, the admission made by Gadakh in his deposition is decisive on the point.It is clear from the above extracts that Gadakh admitted unequivocally in hisin para 222 of his deposition that he did not believe the information given to him by the workers that B. G. Kolse Patil was going to withdraw from South Ahmednagar Constituency having accepted Rs. 20 lakhs from the petitioner. In other words, he did not believe in the truth of the information given to him about the payment of Rs. 20 lakhs by Vikhe Patil to B. G. Kolse Patil and the latter withdrawing from this constituency for that reason. This admission about the kind of belief he had about the truth of this allegation made by Gadakh in hisis notwithstanding a different statement in theand an attempt to resile from that admission in theHis statement inafter being pointed out clearly, the admission made in thethat he did not believe the allegation of payment of Rs. 20 lakhs by Vikhe Patil to B. G. Kolse Patil to be true, does not have the effect of either withdrawing that admission or showing it to be made erroneously. In such a situation, Gadakhs admission in histhat he did not believe the allegation to be true has the effect of reinforcing Vikhe Patils assertion to this effect instead of negativing it.58.Shri Ashok Desai advanced an ingenious argument to avoid the logical adverse effect of this admission made by Gadakh in hisWe have no doubt that nothing better could have been done in this situation. Shri Desai submitted that the belief about the allegation not being true stated by Gadakh in hisrelated to his belief prior to April 29, 1991 on which date B. G. Kolse Patil actually withdrew his candidature from the South Ahmednagar Constituency and not the belief which he entertained later when he made the statement at Sonai on April 30, 1991 and also subsequently. ShriDesai submitted that the admission merely means that when he was given such an information by his workers, he did not believe in the likelihood of B. G. Kolse Patil withdrawing from the South Ahmednagar Constituency which could be only prior to his actual withdrawal on April 29, 1991. The obvious fallacy in the argument is that the admission has to be read in the context of the earlier question and the speeches made by him to this effect which were all subsequent to withdrawal of B. G. Kolse Patil from South Ahmednagar Constituency on April 29, 1991. He was never questioned about his belief on this aspect prior to the making of these statements or prior to the actual withdrawal by B. G. Kolse Patil. It is also significant that the explanation offered by Shri Desai in his arguments is not the explanation given by Gadakh even though he wasy with reference to this admission. It is sufficient to say that the explanation offered by Shri Desai cannot be accepted when even Gadakh does not say so and Gadakhs belief at the time of making the statements subsequent to withdrawal of B. G. Kolse Patil was the only fact in issue.The dispute relating to the statement attributed to Gadakh alleging payment of Rs. 20 lakhs by Vikhe Patil to B. G. Kolse Patil for withdrawing from the South Ahmednagar Constituency and shifting to another constituency is in a limited area. Gadakh says that this was the rumour afloat and his own workers had been repeatedly telling him so pointing out the workers of Vikhe Patil as the source of their information. It is significant that Gadakh has not examined any of his workers who according to him gave this information nor has he named any worker of Vikhe Patil as the source of this information. No circumstance justifying belief in the truth of the allegation has been relied on by Gadakh. There is also no dispute that in the interview which he gave to Girish Kulkarni (PW 11), a specific question to this effect was put to him. Thereporting Gadakhs interview in the Maharashtra Times is Ex. 90 (at pp. 116 to 122 of Vol. II). Thishad appeared in the Maharashtra Times of May 13, 1991 wherein Gadakh was reported to have said as under :"According to my reliable information Shri Vikhe Patil had paid Rs. 50 lakhs to the election fund of the party and Rs. 20 lakhs in order that Shri B. G. Kolse Patil should contest the election from Beed instead of Nagar.60. The"reliable information" mentioned by Gadakh has not been disclosed by specifying the name of anyone supposed to have given the information or by examining him. It is also of significance that Gadakh alleges having sent a letter dated May 16, 1991 under certificate of posting to the Maharashtra Times Office disputing correctness of the(Ex. 90). The receipt of that letter by the addressee is denied and the likelihood of its despatch by Gadakh is extremely doubtful since it was not sent by registered post and a certificate of posting being easy to obtain is not reliable. Expenses being immaterial in that election for both sides, it is extremely unlikely that Gadakh would send such a letter under certificate of posting and not by registered post. In view of the narrow controversy on this point, the criticism levelled against the testimony of Girish Kulkarni is of no practical significance and his version about the interview to the extent it was reported in the(Ex. 90) must be accepted as duly proved. The only significant question on this point is whether Gadakh did not believe this allegation to be true when he made it so that this further requirement to constitute the corrupt practice under Section 123(4) is made out.61. Gadakhs version that he sent the letter dated May 16, 1991 (Ex. Q) under certificate of posting is unbelievable. A certificate of posting is easy to procure and does not inspire confidence. Moreover, the circumstances belie his version. With his considerable means and past experience of elections, he would have sent such a letter by registered post to ensure its delivery and create cogent evidence of its despatch. Moreover, he would not merely send such a letter but have his denial published in newspapers because of its significance during elections. We have no doubt that Gadakhs conduct belies his belated denial at the trial.62. There is, however, another aspect of such a stand taken by Gadakh. Some features are rendered beyond doubt on this point. Gadakh must take the consequence of the contents of the letter which he claims to have sent on May 16, 1991, even though we have rejected his claim of sending such a letter. This letter appears to have been brought into existence later when Gadakh was faced with the consequence of his interview. Admittedly, Gadakh had known prior to May 16, 1991 the contents of the(Ex. 90) published in the Maharashtra Times attributing to him the statement alleging payment of Rs. 20 lakhs by Vikhe Patil to B. G. Kolse Patil but he did not choose to contradict the same by a denial through the Press or in any other authentic manner. Silence of Gadakh at that time reinforces authenticity and the correctness of the(Ex. 90). Another significant feature is that the contents of the letter dated May 16, 1991 indicate at least his doubt in the correctness of the allegation against Vikhe Patil when he said, "it would not be proper on my part to subscribe to those unless I had evidence to that effect". This supports the conclusion that Gadakh did not believe in the truth of that allegation. Absence of a clear denial by Gadakh even therein much less through the Press at that time, in these circumstances, reassures us about the correct reporting of the interview published in the(Ex. 90) in Maharashtra Times of May 13, 1991 in addition to its proof by other evidence supported by conduct of Gadakh himself. The making of the statement of fact alleging payment of Rs. 20 lakhs by Vikhe Patil to B. G. Kolse Patil, its falsity and the want of belief in its truth by Gadakh are proved beyond any doubt.63.Shri Desai also submitted that there were strong reasons for Gadakh to believe in the truth of this allegation. These factors according to Shri Desai are : (1) Vikhe Patil was an important Congressman who was the likely party candidate, earlier having won on the Congress (I) Party ticket five time since 1971 from the adjacent Kopergaon (North Ahmednagar constituency); (2) Vikhe Patil was an extremely influential and affluent person; (3) Vikhe Patil had filed his nominations from both, that is, North and South Ahmednagar Constituencies; (4) Smt Mrinal Gore, President of the State Janata Dal had said on April 28, 1991 that their party would not support Vikhe Patil and B. G. Kolse Patil had already filed his nominations from both, that is, South Ahmednagar and Beed Constituencies; and (5) On April 29, 1991, B. G. Kolse Patil withdrew his candidature from South Ahmednagar Constituency while Vikhe Patil withdrew from Kopergaon (North Ahmednagar Constituency) and Janata Dal declared its support for Vikhe Patil. Shri Desai submitted that these were strong circumstances for Gadakh to reasonably believe in the truth of the rumour that B. G. Kolse Patil had withdrawn from this constituency (South Ahmednagar) on payment of Rs. 20 lakhs by Vikhe Patil to B. G. Kolse Patil. In our opinion, these factors are not necessarily consistent with the truth of the allegation of payment of money by Vikhe Patil to B. G. Kolse Patil inasmuch as they are equally consistent with B. G. Kolse Patil preferring to contest from the other constituency on a full assessment of his prospects in the election from the South Ahmednagar Constituency against Vikhe Patil who even according to Gadakh was a very strong and influential candidate. The mere fact that Smt Mrinal Gore had spoken against the likelihood of withdrawal of B. G. Kolse Patil from South Ahmednagar is not by itself significant since action of politicians contrary to their earlier declaration in such matters is not uncommon. Moreover, in view of the direct evidence in the form of admission by Gadakh of the kind of belief he entertained at the time of making the statement, these circumstances are inconsequential when Gadakh himself does not say so. The direct evidence of Gadakh himself about the kind of belief he entertained at that time is decisive of the matter and conclusive against him on this point.It cannot, therefore, be doubted that Gadakh did not believe in the truth of this allegation made against Vikhe Patil when he said in his speech and interview that Rs. 20 lakhs had been paid by Vikhe Patil to the Janata Dal candidate B. G. Kolse Patil for withdrawing from this constituency and shifting to another constituency. It follows that all the requirements of Section 123(4) are satisfied and the false statement of fact made to this effect by Gadakh in respect of the personal character and conduct of Vikhe Patil amounts to the corrupt practice under Section 123(4) of the R.P. Act. This alone is sufficient for declaring the election of Gadakh to be void. The High Courts conclusion to this effect is, therefore, sustainable only for this reason alone.In our opinion, the statements attributed to Sharad Pawar in the meetings held at Newasa and Srigonda ex facie do not amount to statements of fact relating to the personal character or conduct of Vikhe Patil being only the expression of his opinion based on apprehensions about the likely future conduct of Vikhe Patil or relating only to Vikhe Patils political character which do not fall within the ambit of Section 123(4) of the R.P. Act. For this reason, the remaining submissions of Shri Parasaran do not require consideration. We shall now deal with the statements attributed to Sharad Pawar specified in the notice under Section 99, which alone require consideration. These have been extracted and enumerated earlier.72. The statements made in the meeting at Newasa were these : In the first statement made by Sharad Pawar, he said that Vikhe Patil had filed his nomination from the South constituency instead of the North because it was a poor region and a scarcity area thinking that it was a good circumstance to win easily. It is difficult to appreciate how this statement can relate to the personal character or conduct of Vikhe Patil envisaged by Section 123(4). The second statement was that Vikhe Patil suffered from the illusion that the poor people of South could be purchased with his resources but those people were men possessed of self respect who could not be purchased with anybodys money. The indication was that any such illusion or impression of Vikhe Patil was incorrect and was meant for Vikhe Patil and not the voters. This statement also is not of the kind envisaged by Section 123(4). This statement also is, therefore, of no significance in the present context. The third statement refers to the speech of Gadakh wherein he said : "They will distribute bicycles, distribute dhoties and sarees", and then adds, "I do not have any objection". The statement of Sharad Pawar therein was that he had no objection to acceptance of the articles if they were distributed. For the reason given while dealing with Gadakhs statement to this effect, Sharad Pawars statement that he had no objection to acceptance of the same, does not fall within the net of Section 123(4). The fourth statement again refers to the likelihood in future of distribution of articles and wealth and proceeds to add : "Let them do it at the place and so far diverting the votes on the strength of money, let it be clear to whole of Maharashtra that voters cannot be bought". The emphasis in this statement is on the fact that voters cannot be bought even if such a distribution was made by any candidate and not that any such distribution was being made by the candidate Vikhe Patil. This too does not fall within Section 123(4). The fifth statement also is a general statement to the same effect of the likelihood of corrupting the people and putting pressure on them with the further caution to guard against any such attempt. The sixth and the last statement made at Newasa is an exhortation to the electorate to support morality and honesty to belittle and destroy the force of wealth and ego opposed to it. This was merely an exhortation of the speaker to support morality and honesty against money power and ego. These general statements made by Sharad Pawar at Newasa projecting his partys candidate as the upholder of morality and honesty against the forces guided by money power and ego amounted to his opinion of the kind of representation made by the two candidates irrespective of the correctness or otherwise of that opinion. The exhortation made to the people to vote for his partys candidate as the upholder of morality and honesty cannot be treated as statements of fact relating to the character and conduct of Vikhe Patil amounting to vilification of his character or conduct. Thus, none of the statements of Sharad Pawar at Newasa constitutes the corrupt practice under Section 123(4) of the R.P. Act.73. In the meeting at Srigonda, Sharad Pawar is alleged to have made four statements to which objection is taken by Vikhe Patil. The first statement is similar to the first and second statements made at Newasa wherein he said that Vikhe Patil chose to contest from the South constituency being a famine prone region wherein the people were poor for the purpose of purchasing their self respect. He then added that Vikhe Patil had started activities to win the election by efforts of interested parties by playing their game of purchasing self respect of the poor people. For the reasons already given, this statement does not come within Section 123(4). In the second statement, Sharad Pawar said that money alone cannot be an important motivation in the election and there was need of ideology, policy, programme and morality. He then added that it is wrong to give up morality and leave the party when ones wish is not fulfilled and to join hands with other parties. He added that once the "kum kum" is applied its sanctity must be maintained and there should not be any flirting with a person other than he to whom the "kum kum" is applied. This was in the background of Vikhe Patil leaving the Congress (I) Party when the party ticket was not given to him and he contesting the election with the help of other parties. The suggestion was that abandoning the party and switching of loyalty was not morally and ideologically correct. In the admitted background of Vikhe Patil this comment was on his political morality and character because of his leaving the Congress (I) Party on denial of ticket to him and contesting against the Congress (I) Partys candidate. This statement did not relate to the personal character or conduct of Vikhe Patil but merely to his political character and morality. This does not fall within Section 123(4). The third statement is a repetition of the apprehensions for the future of the likelihood of distribution of the benefits in the constituency coupled with the exhortation that if such a thing has begun or is to happen in future, the same may be accepted without being influenced thereby in the choice of the candidate. For the reasons already given, this too does not come within Section 123(4). The fourth and the last statement at Srigonda made by Sharad Pawar was again an exhortation to act on principle, morality and humanity shunning disloyalty and arrogance of money and power. This is indeed high idealism better practised than preached. This cannot obviously come within Section 123(4).74. These being the only statements attributed to Sharad Pawar, we have no doubt that none of them constitutes the corrupt practice under Section 123(4) of the R.P. Act and, therefore, accepting that these statements were made by Sharad Pawar since there is no attempt by Sharad Pawar to dispute any of them, it must be held that none of them is a statement of fact relating to the personal character and conduct of Vikhe Patil of the kind envisaged by Section 123(4). The question of examining whether the remaining requirements of Section 123(4) including the consent of Gadakh and the reasonable likelihood of its impact on the mind of the electorate are satisfied, does not arise for consideration.75. In the present case, it is unnecessary to deal with the arguments from both sides pertaining to the decision in Manohar Joshi v. Damodar Tatyaba since without going into the arguments relating to the defects in the notice under Section 99 of the R.P. Act issued to Sharad Pawar, we have reached the conclusion that the statements attributed to him of which he was given the notice, do not constitute the corrupt practice under Section 123(4).76. We may, however, observe that the conclusion that these statements do not constitute the corrupt practice under Section 123(4) should not be construed as our opinion that the making of such statements during the election campaign is desirable or that they are necessary for education of the electorate. This caution is necessary in view of the attempt made by Shri Ram Jethmalani to widen the scope by contending that the same is a justified electoral practice for education of the electorate. In our view, the electorate by now is well educated about the justified means desirable during the election campaign and it looks forward to knowing the positive programmes of the candidates together with their comparative merits instead of being left to compare their demerits and choose from amongst them the one with the least demerits. The shift in the election campaign has, therefore, to be in a positive direction to enable the electorate to cast its positive vote instead of the negative vote by rejecting those with greater demerits. This duty is cast more heavily on the senior leaders of all the political parties to ensure that the election campaign does not degenerate into a campaign of vilification, which may tend to promote violence during elections and lead to criminalisation of politics. These are hard realities of the present trend of election campaign and this trend must be reversed to make the democracy more meaningful by ensuring purity of elections which can be achieved only by a shift in the trend towards the right direction.77. Judging by these standards, we are constrained to observe that some of the statements made by Sharad Pawar, the Chief Minister of Maharashtra, even though not amounting to corrupt practice under the enacted law, do not measure up to the desired level of electioneering at the top echelon of political leadership to set the trend for a healthy election campaign. His suggestion to the voters to accept monies etc., if distributed by a candidate, without being influenced thereby as a means of propagating socialism exhibits a bizarre perception of socialism. It is shocking enough that Gadakh said so but far worse to find the Chief Minister endorse that view. Intended as sarcasm it depicts poor taste. If this be the level of election campaign at the top, it is bound to degenerate as it descends to the lower levels. Some portions of the speeches of Sharad Pawar were indeed high precept but the electorate would have benefited more by knowledge of the track record of the preachers practice of the same. There was no such attempt. The degree of responsibility and the level of electioneering expected of the top leadership was wanting in these speeches. If probity in public life is to be maintained and purity of elections is not a myth or merea higher level of electioneering is expected at least at the highest level of political leadership.78. It is with this not of caution we say that all the statements attributed to Sharad Pawar and many attributed to Gadakh do not constitute the alleged corrupt practice under Section 123(4) of the R.P. Act. Accordingly, the notice issued under Section 99 to Sharad Pawar should have been discharged by the High Court instead of Sharad Pawar being named for commission of any such corrupt practice.The law applicable being as above, the mere fact that Vikhe Patil secured the next highest number of votes after Gadakh is not sufficient to declare him elected on the conclusion that Gadakhs election is void for commission of a corrupt practice. The High Court proceeded on an erroneous assumption to grant this further relief under Section 101(b) of the R.P. Act declaring Vikhe Patil to have been duly elected.Shri P. P. Rao,with his usual fairness, in our view rightly, did not seriously support the grant of this further relief declaring Vikhe Patil to have been duly elected, on account of the absence of the requisite evidence to support the grant of this further declaration in the present case. No further consideration of this point is, therefore, necessary. | 1 | 21,810 | 7,810 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
present trend of election campaign and this trend must be reversed to make the democracy more meaningful by ensuring purity of elections which can be achieved only by a shift in the trend towards the right direction.77. Judging by these standards, we are constrained to observe that some of the statements made by Sharad Pawar, the Chief Minister of Maharashtra, even though not amounting to corrupt practice under the enacted law, do not measure up to the desired level of electioneering at the top echelon of political leadership to set the trend for a healthy election campaign. His suggestion to the voters to accept monies etc., if distributed by a candidate, without being influenced thereby as a means of propagating socialism exhibits a bizarre perception of socialism. It is shocking enough that Gadakh said so but far worse to find the Chief Minister endorse that view. Intended as sarcasm it depicts poor taste. If this be the level of election campaign at the top, it is bound to degenerate as it descends to the lower levels. Some portions of the speeches of Sharad Pawar were indeed high precept but the electorate would have benefited more by knowledge of the track record of the preachers practice of the same. There was no such attempt. The degree of responsibility and the level of electioneering expected of the top leadership was wanting in these speeches. If probity in public life is to be maintained and purity of elections is not a myth or mere catch-phrase, a higher level of electioneering is expected at least at the highest level of political leadership.78. It is with this not of caution we say that all the statements attributed to Sharad Pawar and many attributed to Gadakh do not constitute the alleged corrupt practice under Section 123(4) of the R.P. Act. Accordingly, the notice issued under Section 99 to Sharad Pawar should have been discharged by the High Court instead of Sharad Pawar being named for commission of any such corrupt practice. FURTHER RELIEF UNDER SECTION 101(b) OF THE R.P. ACT 79. The further relief granted by the High Court of declaring Vikhe Patil to have been duly elected after declaring the election of Gadakh to be void is clearly unsustainable. This further relief declaring Vikhe Patil to have been duly elected has been granted under Section 101 of the R.P. Act which read as under : "101. Grounds for which a candidate other than the returned candidate may be declared to have been elected. - If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion - (a) that in fact the petitioner or such other candidate received a majority of the valid votes; or (b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the High Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected." * Obviously it is clause (b) of Section 101 under which the further relief in the present case can be justified. To justify this further relief, it must be held that but for the votes obtained by Gadakh by the corrupt practice committed under Section 123(4) of the R.P. Act, Vikhe Patil would have obtained a majority of the valid votes. The High Court has taken the view that the election of Gadakh being void Vikhe Patil who polled the next highest number of votes must be declared to have been duly elected. There is no discernible cogent reason in the High Courts judgment to support this conclusion. 80. In Konappa Rudrappa Nadgouda v. Vishwanath Reddy the Constitution Bench pointed out the cases falling under Section 101(b) in which this further declaration can be made. It was held therein as under : (SCC pp. 95-96). "We are again unable to see any logic in the assumption that votes cast in favour of a person who is regarded by the Returning Officer as validly nominated, but who is in truth disqualified, could still be treated as valid votes, for the purpose of determining whether a fresh election should be held. When there are only two contesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown way, irrespective of whether the voters who voted for him were aware of the disqualification. This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate." * (emphasis supplied) 81. The law applicable being as above, the mere fact that Vikhe Patil secured the next highest number of votes after Gadakh is not sufficient to declare him elected on the conclusion that Gadakhs election is void for commission of a corrupt practice. The High Court proceeded on an erroneous assumption to grant this further relief under Section 101(b) of the R.P. Act declaring Vikhe Patil to have been duly elected. Shri P. P. Rao, with his usual fairness, in our view rightly, did not seriously support the grant of this further relief declaring Vikhe Patil to have been duly elected, on account of the absence of the requisite evidence to support the grant of this further declaration in the present case. No further consideration of this point is, therefore, necessary.
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his political character and morality. This does not fall within Section 123(4). The third statement is a repetition of the apprehensions for the future of the likelihood of distribution of the benefits in the constituency coupled with the exhortation that if such a thing has begun or is to happen in future, the same may be accepted without being influenced thereby in the choice of the candidate. For the reasons already given, this too does not come within Section 123(4). The fourth and the last statement at Srigonda made by Sharad Pawar was again an exhortation to act on principle, morality and humanity shunning disloyalty and arrogance of money and power. This is indeed high idealism better practised than preached. This cannot obviously come within Section 123(4).74. These being the only statements attributed to Sharad Pawar, we have no doubt that none of them constitutes the corrupt practice under Section 123(4) of the R.P. Act and, therefore, accepting that these statements were made by Sharad Pawar since there is no attempt by Sharad Pawar to dispute any of them, it must be held that none of them is a statement of fact relating to the personal character and conduct of Vikhe Patil of the kind envisaged by Section 123(4). The question of examining whether the remaining requirements of Section 123(4) including the consent of Gadakh and the reasonable likelihood of its impact on the mind of the electorate are satisfied, does not arise for consideration.75. In the present case, it is unnecessary to deal with the arguments from both sides pertaining to the decision in Manohar Joshi v. Damodar Tatyaba since without going into the arguments relating to the defects in the notice under Section 99 of the R.P. Act issued to Sharad Pawar, we have reached the conclusion that the statements attributed to him of which he was given the notice, do not constitute the corrupt practice under Section 123(4).76. We may, however, observe that the conclusion that these statements do not constitute the corrupt practice under Section 123(4) should not be construed as our opinion that the making of such statements during the election campaign is desirable or that they are necessary for education of the electorate. This caution is necessary in view of the attempt made by Shri Ram Jethmalani to widen the scope by contending that the same is a justified electoral practice for education of the electorate. In our view, the electorate by now is well educated about the justified means desirable during the election campaign and it looks forward to knowing the positive programmes of the candidates together with their comparative merits instead of being left to compare their demerits and choose from amongst them the one with the least demerits. The shift in the election campaign has, therefore, to be in a positive direction to enable the electorate to cast its positive vote instead of the negative vote by rejecting those with greater demerits. This duty is cast more heavily on the senior leaders of all the political parties to ensure that the election campaign does not degenerate into a campaign of vilification, which may tend to promote violence during elections and lead to criminalisation of politics. These are hard realities of the present trend of election campaign and this trend must be reversed to make the democracy more meaningful by ensuring purity of elections which can be achieved only by a shift in the trend towards the right direction.77. Judging by these standards, we are constrained to observe that some of the statements made by Sharad Pawar, the Chief Minister of Maharashtra, even though not amounting to corrupt practice under the enacted law, do not measure up to the desired level of electioneering at the top echelon of political leadership to set the trend for a healthy election campaign. His suggestion to the voters to accept monies etc., if distributed by a candidate, without being influenced thereby as a means of propagating socialism exhibits a bizarre perception of socialism. It is shocking enough that Gadakh said so but far worse to find the Chief Minister endorse that view. Intended as sarcasm it depicts poor taste. If this be the level of election campaign at the top, it is bound to degenerate as it descends to the lower levels. Some portions of the speeches of Sharad Pawar were indeed high precept but the electorate would have benefited more by knowledge of the track record of the preachers practice of the same. There was no such attempt. The degree of responsibility and the level of electioneering expected of the top leadership was wanting in these speeches. If probity in public life is to be maintained and purity of elections is not a myth or merea higher level of electioneering is expected at least at the highest level of political leadership.78. It is with this not of caution we say that all the statements attributed to Sharad Pawar and many attributed to Gadakh do not constitute the alleged corrupt practice under Section 123(4) of the R.P. Act. Accordingly, the notice issued under Section 99 to Sharad Pawar should have been discharged by the High Court instead of Sharad Pawar being named for commission of any such corrupt practice.The law applicable being as above, the mere fact that Vikhe Patil secured the next highest number of votes after Gadakh is not sufficient to declare him elected on the conclusion that Gadakhs election is void for commission of a corrupt practice. The High Court proceeded on an erroneous assumption to grant this further relief under Section 101(b) of the R.P. Act declaring Vikhe Patil to have been duly elected.Shri P. P. Rao,with his usual fairness, in our view rightly, did not seriously support the grant of this further relief declaring Vikhe Patil to have been duly elected, on account of the absence of the requisite evidence to support the grant of this further declaration in the present case. No further consideration of this point is, therefore, necessary.
|
Firm Madanlal Roshanlal Mahajan Vs. Hukumchand Mills Ltd., Indore | a consideration of the contentions, and submissions of the parties, the arbitrator directed the appellant to pay Rs. 1,17,108-7-9 and to give up its claim to 461/2 bales. As the respondent was allowed to retain the bales, the arbitrator passed a lump sum award for Rs. 1,17,108-7-9 only in respect of both items of the respondents claim. The arbitrator could give a lump sum award. He was not bound to give a separate award for each claim. His award on both fact and law is final. There is no appeal from his verdict. The Court cannot review his award and correct any mistake in his adjudication, unless an objection to the legality of the award is apparent on that face of it. In Champsey Bhara and Co. v. Jivraj Balloo Spinning and Weaving Co. Ltd., 50 Ind App 324 : (AIR 1923 PC 66), the Privy Council stated :"An error in law on the face of the award means, in Their Lordships view, that you can find in the award or a document actually incorporated thereto, as for instance a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous."In the present case, the arbitrator gave no reason for the award. We do not find in the award any legal proposition which is the basis of the award, far less a legal proposition which is erroneous. It is not possible to say from the award that the arbitrator was under a misconception of law. The contention that there are errors of law on the face of the award is rejected.3. Counsel then submitted that by amending an issue behind the back of the appellant, the arbitrator was guilty of misconduct. This contention has no force. The arbitrator had raised two issues. The second issue referred to the respondents claim in respect of 461/2 bales as a claim for loss in respect of the bales. At the time of the writing of the award, the arbitrator corrected this issue so as to show that the claim was for the price of the bales. By this Amendment, the appellant suffered no prejudice. The parties well knew that the respondent claimed the price of 461/2 bales and fought the case before the arbitrator on that footing.4. The last objection to the award is that the arbitrator had no power to award interest during the pendency of the suit. In support of this objection, counsel for the appellant relied upon the following observations of Bose, J., in Thawardas Pherumal v. Union of India, 1955-2 SCR 48 at p. 65: (AIR 1955 SC 468 at p. 478):"It was suggested that at least interest from the date of suit could be awarded on the analogy of S. 34 of the Civil Procedure Code, 1908. But S. 34 does not apply because an arbitrator is not a Court within the meaning of the Code nor does the Code apply to arbitrators, and, but for S. 34, even a Court would not have the power to give interest after the suit. This was, therefore, also rightly struck out from the award."These observations divorced from their context lend colour to the argument that the arbitrator has no power to award pendente life interest. But, in later cases, this Court has pointed out that the observations in Thawardass case, 1955-2 SCR 48 : (AIR 1955 SC 468 ), were not intended to lay down such a broad and unqualified proposition, see Nachiappa Chettiar v Subramaniam Chettiar, 1960-2 SCR 209 at p. 238 : (AIR 1960 SC 307 at p 320), Satinder Singh v. Umrao Singh, 1961-3 SCR 676 at p. 695 : (AIR 1961 SC 908 at p. 916). The relevant facts regarding the claim for interest in Thawardass case, 1955-2 SCR 48 : (AIR 1955 SC 468 ) will be found at pp. 64 to 66 of the Report (SCR) : (at pp. 477 to 478 of AIR) and in Paras. 2, 17 and 24 of the judgment of the Patna High Court reported in Union of India v. Premchand Satram Das, AIR 1951 Pat 201 at pp. 204-205. The arbitrator awarded interest on unliquidated damages for a period before the reference to arbitration and also for a period subsequent to the reference. The High Court set aside the award regarding interest on the ground that the claim for interest was not referred to arbitration and the arbitrator had no jurisdiction to entertain the claim. In this Court, counsel for the claimant contended that the arbitrator had statutory power under the Interest Act of 1839 to award the interest and, in any event, he had power to award interest during the pendency of the arbitration proceedings under S. 34 of the Code of Civil Procedure, 1908. Bose, J. rejected this contention. It will be noticed that the judgment of this Court in Thawardass case, 1955-2 SCR 48 : (AIR 1955 SC 468 ), is silent on the question whether the arbitrator can award interest during the pendency of arbitration proceedings if the claim regarding interest is referred to arbitration. In the present case, all the disputes in the suit were referred to the arbitrator for his decision. One of the disputes in the suit was whether the respondent was entitled to pendente life interest. The arbitrator could decide the dispute and he could award pendente lite interest just as a Court could do so under S. 34 of the Code of Civil Procedure. Though, in terms, S. 34 of the Code of Civil Procedure does not apply to arbitrations, it was an implied term of the reference in the suit that the arbitrator would decide the dispute according to law and would give such relief with regard to pendente life interest as the Court could give if it decided the dispute. This power of the arbitrator was not fettered either by the arbitration agreement or by the Arbitration Act, 1940. | 0[ds]In the present case, the arbitrator gave no reason for the award. We do not find in the award any legal proposition which is the basis of the award, far less a legal proposition which is erroneous. It is not possible to say from the award that the arbitrator was under a misconception of law. The contention that there are errors of law on the face of the award isarbitrator awarded interest on unliquidated damages for a period before the reference to arbitration and also for a period subsequent to the reference. The High Court set aside the award regarding interest on the ground that the claim for interest was not referred to arbitration and the arbitrator had no jurisdiction to entertain the claim. In this Court, counsel for the claimant contended that the arbitrator had statutory power under the Interest Act of 1839 to award the interest and, in any event, he had power to award interest during the pendency of the arbitration proceedings under S. 34 of the Code of Civil Procedure, 1908. Bose, J. rejected this contention. It will be noticed that the judgment of this Court in Thawardass case, 1955-2 SCR 48 : (AIR 1955 SC 468 ), is silent on the question whether the arbitrator can award interest during the pendency of arbitration proceedings if the claim regarding interest is referred to arbitration. In the present case, all the disputes in the suit were referred to the arbitrator for his decision. One of the disputes in the suit was whether the respondent was entitled to pendente life interest. The arbitrator could decide the dispute and he could award pendente lite interest just as a Court could do so under S. 34 of the Code of Civil Procedure. Though, in terms, S. 34 of the Code of Civil Procedure does not apply to arbitrations, it was an implied term of the reference in the suit that the arbitrator would decide the dispute according to law and would give such relief with regard to pendente life interest as the Court could give if it decided the dispute. This power of the arbitrator was not fettered either by the arbitration agreement or by the Arbitration Act, 1940. | 0 | 2,007 | 401 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
a consideration of the contentions, and submissions of the parties, the arbitrator directed the appellant to pay Rs. 1,17,108-7-9 and to give up its claim to 461/2 bales. As the respondent was allowed to retain the bales, the arbitrator passed a lump sum award for Rs. 1,17,108-7-9 only in respect of both items of the respondents claim. The arbitrator could give a lump sum award. He was not bound to give a separate award for each claim. His award on both fact and law is final. There is no appeal from his verdict. The Court cannot review his award and correct any mistake in his adjudication, unless an objection to the legality of the award is apparent on that face of it. In Champsey Bhara and Co. v. Jivraj Balloo Spinning and Weaving Co. Ltd., 50 Ind App 324 : (AIR 1923 PC 66), the Privy Council stated :"An error in law on the face of the award means, in Their Lordships view, that you can find in the award or a document actually incorporated thereto, as for instance a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous."In the present case, the arbitrator gave no reason for the award. We do not find in the award any legal proposition which is the basis of the award, far less a legal proposition which is erroneous. It is not possible to say from the award that the arbitrator was under a misconception of law. The contention that there are errors of law on the face of the award is rejected.3. Counsel then submitted that by amending an issue behind the back of the appellant, the arbitrator was guilty of misconduct. This contention has no force. The arbitrator had raised two issues. The second issue referred to the respondents claim in respect of 461/2 bales as a claim for loss in respect of the bales. At the time of the writing of the award, the arbitrator corrected this issue so as to show that the claim was for the price of the bales. By this Amendment, the appellant suffered no prejudice. The parties well knew that the respondent claimed the price of 461/2 bales and fought the case before the arbitrator on that footing.4. The last objection to the award is that the arbitrator had no power to award interest during the pendency of the suit. In support of this objection, counsel for the appellant relied upon the following observations of Bose, J., in Thawardas Pherumal v. Union of India, 1955-2 SCR 48 at p. 65: (AIR 1955 SC 468 at p. 478):"It was suggested that at least interest from the date of suit could be awarded on the analogy of S. 34 of the Civil Procedure Code, 1908. But S. 34 does not apply because an arbitrator is not a Court within the meaning of the Code nor does the Code apply to arbitrators, and, but for S. 34, even a Court would not have the power to give interest after the suit. This was, therefore, also rightly struck out from the award."These observations divorced from their context lend colour to the argument that the arbitrator has no power to award pendente life interest. But, in later cases, this Court has pointed out that the observations in Thawardass case, 1955-2 SCR 48 : (AIR 1955 SC 468 ), were not intended to lay down such a broad and unqualified proposition, see Nachiappa Chettiar v Subramaniam Chettiar, 1960-2 SCR 209 at p. 238 : (AIR 1960 SC 307 at p 320), Satinder Singh v. Umrao Singh, 1961-3 SCR 676 at p. 695 : (AIR 1961 SC 908 at p. 916). The relevant facts regarding the claim for interest in Thawardass case, 1955-2 SCR 48 : (AIR 1955 SC 468 ) will be found at pp. 64 to 66 of the Report (SCR) : (at pp. 477 to 478 of AIR) and in Paras. 2, 17 and 24 of the judgment of the Patna High Court reported in Union of India v. Premchand Satram Das, AIR 1951 Pat 201 at pp. 204-205. The arbitrator awarded interest on unliquidated damages for a period before the reference to arbitration and also for a period subsequent to the reference. The High Court set aside the award regarding interest on the ground that the claim for interest was not referred to arbitration and the arbitrator had no jurisdiction to entertain the claim. In this Court, counsel for the claimant contended that the arbitrator had statutory power under the Interest Act of 1839 to award the interest and, in any event, he had power to award interest during the pendency of the arbitration proceedings under S. 34 of the Code of Civil Procedure, 1908. Bose, J. rejected this contention. It will be noticed that the judgment of this Court in Thawardass case, 1955-2 SCR 48 : (AIR 1955 SC 468 ), is silent on the question whether the arbitrator can award interest during the pendency of arbitration proceedings if the claim regarding interest is referred to arbitration. In the present case, all the disputes in the suit were referred to the arbitrator for his decision. One of the disputes in the suit was whether the respondent was entitled to pendente life interest. The arbitrator could decide the dispute and he could award pendente lite interest just as a Court could do so under S. 34 of the Code of Civil Procedure. Though, in terms, S. 34 of the Code of Civil Procedure does not apply to arbitrations, it was an implied term of the reference in the suit that the arbitrator would decide the dispute according to law and would give such relief with regard to pendente life interest as the Court could give if it decided the dispute. This power of the arbitrator was not fettered either by the arbitration agreement or by the Arbitration Act, 1940.
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### Explanation:
In the present case, the arbitrator gave no reason for the award. We do not find in the award any legal proposition which is the basis of the award, far less a legal proposition which is erroneous. It is not possible to say from the award that the arbitrator was under a misconception of law. The contention that there are errors of law on the face of the award isarbitrator awarded interest on unliquidated damages for a period before the reference to arbitration and also for a period subsequent to the reference. The High Court set aside the award regarding interest on the ground that the claim for interest was not referred to arbitration and the arbitrator had no jurisdiction to entertain the claim. In this Court, counsel for the claimant contended that the arbitrator had statutory power under the Interest Act of 1839 to award the interest and, in any event, he had power to award interest during the pendency of the arbitration proceedings under S. 34 of the Code of Civil Procedure, 1908. Bose, J. rejected this contention. It will be noticed that the judgment of this Court in Thawardass case, 1955-2 SCR 48 : (AIR 1955 SC 468 ), is silent on the question whether the arbitrator can award interest during the pendency of arbitration proceedings if the claim regarding interest is referred to arbitration. In the present case, all the disputes in the suit were referred to the arbitrator for his decision. One of the disputes in the suit was whether the respondent was entitled to pendente life interest. The arbitrator could decide the dispute and he could award pendente lite interest just as a Court could do so under S. 34 of the Code of Civil Procedure. Though, in terms, S. 34 of the Code of Civil Procedure does not apply to arbitrations, it was an implied term of the reference in the suit that the arbitrator would decide the dispute according to law and would give such relief with regard to pendente life interest as the Court could give if it decided the dispute. This power of the arbitrator was not fettered either by the arbitration agreement or by the Arbitration Act, 1940.
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ANDHRA PRADESH PUBLIC SERVICE COMMISSION Vs. KOTA LINGESWARA RAO & ORS | join duty, and allowed the writ petition filed by Respondent No. 1, directing the Commission to appoint Respondent No.1 to the said post.4. Heard Mr. R. Basant, learned senior counsel appearing on behalf of the appellant/Commission and Mr. J. Sudheer, learned counsel appearing on behalf of Respondent No. 1. Learned counsel for both the parties have taken us through the material on record and the concerned rules.5. It is relevant to note that Rule 6 of the APPSC Rules was amended on 22.02.1997 and a notification was issued for selection to the post of Junior Lecturer in Mathematics on 26.11.2008. Before proceeding further, it is relevant to note the unamended and amended Rule 6 as well as Rule 7 of the APPSC Rules:?Rule -6 (Prior to amendment)- The ranking list prepared by the Commission for selection in a direct recruitment shall remain in force for a period of one year from the date of which the selection list is published on the Notice Board of the Commissioner or till the publication of the new selection list whichever is earlier. The Commission may select candidates from the ranking list in force in place of those who relinquish the selection or who do not join duty within the time given and also new requisitions (sent by appointing authorities). However, the Commission shall have the right to freeze any ranking list for reasons recorded.Rule 6: (After amendment) - The list of the candidates approved/selected by the Commission shall be equal to the number of vacancies only including those for reserved communities/categories notified by the Unit Officers Government. The fallout vacancies if any due to relinquishment and non-joining etc., of selected candidates shall be notified in the next recruitment.Rule 7: Any candidate whose name has been included in a selection list in a direct recruitment prepared by the Commission, on enquiry by the Commission, may relinquish his claim for appointment in writing in the Proforma prescribed by the Commission. The Commission shall there Upon remove the name of such candidate from the selection list and select any other candidate according to rules. The candidate whose name has been so removed from the selection list shall be informed of such removal by the Commission and shall have no right for the said appointment in future with reference to the said selection.? 6. The unamended Rule 6 of the APPSC Rules stated that the ranking list prepared by the Commission for selection in a direct recruitment would remain in force for a period of one year from the date of publication of the selection list, or till the publication of the new selection list, whichever was earlier. It further provided that it would be open for the Commission to select the candidates from the ranking list in place of those who relinquished the selection or who did not join duty within the time given. Thus, the ranking list would in effect function as a waiting list for one year (maximum). After the amendment of Rule 6, such waiting period has been given a go by. The amended Rule 6 of the APPSC Rules specifies that the list of the candidates approved/selected by the Commission shall be equal to the number of vacancies. It further specifies that the fallout vacancies, if any, due to relinquishment and nonjoining etc. of selected candidates shall be notified in the next recruitment, clearly indicating that the process of issuance of waiting list has been discontinued.7. Rule 7 of the APPSC Rules further makes it clear that in case a candidate relinquishes his claim for appointment in writing, the Commission shall remove the name of such candidate from the selection list and select any other candidate according to the Rules. Thus, it is clarified in Rule 7 that selection must be as per the existing Rules.8. In the matter on hand, Respondent No. 1, as mentioned supra, approached the A.P. Administrative Tribunal for appointment four years after the date of relinquishment of the post by Mr. G.V. Ramakrishna Sagar. Firstly, he has to be non-suited due to delay and laches. Secondly, even on merits, we do not find any ground to show leniency in favour of Respondent No.1 inasmuch as the selection, if made in favour of Respondent No. 1, would go against the Rules.9. As discussed above, after the amendment of Rule 6, the system of a waiting list remaining in force for a period of one year has been done away with. The Rule also makes it clear that the fallout vacancies, if any, due to relinquishment and non-joining etc. of the selected candidates shall be notified in the next recruitment. Hence, the Commission does not have the power to invite the next selected candidate if the last selected candidate does not opt to join the post, and must publish the vacant post in the next recruitment only. In view of the same, Respondent No. 1 being a non-selected candidate, cannot urge the Commission to select him based on the unamended Rule 6 of the APPSC Rules. He is bound by the amended Rule 6 of the APPSC Rules, inasmuch as Rule 6 was amended on 22.02.1997.10. In view of the specific mandate of the amended Rule 6 of the APPSC Rules, in our considered opinion, the High Court was not justified in granting relief in favour of Respondent No. 1 ignoring amended Rule 6. Both the Rules i.e. Rule 6 (amended) and Rule 7 have to be read harmoniously. Rule 7 will sub-serve the intention of the amended Rule 6 of the APPSC Rules, since it specifically mentions that selection of a new candidate, after relinquishment of a post by another candidate, shall be done in accordance with the rules, which would mean the rules in force at that time. Furthermore, it has also been brought to our notice that the Commission deleted Rule 7 by G.P. Ms. No. 139 on 28.07.2016, having found that the said rule, to a certain extent, was creating confusion in the selection process. | 1[ds]8. In the matter on hand, Respondent No. 1, as mentioned supra, approached the A.P. Administrative Tribunal for appointment four years after the date of relinquishment of the post by Mr. G.V. Ramakrishna Sagar. Firstly, he has to be non-suited due to delay and laches. Secondly, even on merits, we do not find any ground to show leniency in favour of Respondent No.1 inasmuch as the selection, if made in favour of Respondent No. 1, would go against the Rules9. As discussed above, after the amendment of Rule 6, the system of a waiting list remaining in force for a period of one year has been done away with. The Rule also makes it clear that the fallout vacancies, if any, due to relinquishment and non-joining etc. of the selected candidates shall be notified in the next recruitment. Hence, the Commission does not have the power to invite the next selected candidate if the last selected candidate does not opt to join the post, and must publish the vacant post in the next recruitment only. In view of the same, Respondent No. 1 being a non-selected candidate, cannot urge the Commission to select him based on the unamended Rule 6 of the APPSC Rules. He is bound by the amended Rule 6 of the APPSC Rules, inasmuch as Rule 6 was amended on 22.02.199710. In view of the specific mandate of the amended Rule 6 of the APPSC Rules, in our considered opinion, the High Court was not justified in granting relief in favour of Respondent No. 1 ignoring amended Rule 6. Both the Rules i.e. Rule 6 (amended) and Rule 7 have to be read harmoniously. Rule 7 will sub-serve the intention of the amended Rule 6 of the APPSC Rules, since it specifically mentions that selection of a new candidate, after relinquishment of a post by another candidate, shall be done in accordance with the rules, which would mean the rules in force at that time. Furthermore, it has also been brought to our notice that the Commission deleted Rule 7 by G.P. Ms. No. 139 on 28.07.2016, having found that the said rule, to a certain extent, was creating confusion in the selection process. | 1 | 1,420 | 424 | ### Instruction:
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join duty, and allowed the writ petition filed by Respondent No. 1, directing the Commission to appoint Respondent No.1 to the said post.4. Heard Mr. R. Basant, learned senior counsel appearing on behalf of the appellant/Commission and Mr. J. Sudheer, learned counsel appearing on behalf of Respondent No. 1. Learned counsel for both the parties have taken us through the material on record and the concerned rules.5. It is relevant to note that Rule 6 of the APPSC Rules was amended on 22.02.1997 and a notification was issued for selection to the post of Junior Lecturer in Mathematics on 26.11.2008. Before proceeding further, it is relevant to note the unamended and amended Rule 6 as well as Rule 7 of the APPSC Rules:?Rule -6 (Prior to amendment)- The ranking list prepared by the Commission for selection in a direct recruitment shall remain in force for a period of one year from the date of which the selection list is published on the Notice Board of the Commissioner or till the publication of the new selection list whichever is earlier. The Commission may select candidates from the ranking list in force in place of those who relinquish the selection or who do not join duty within the time given and also new requisitions (sent by appointing authorities). However, the Commission shall have the right to freeze any ranking list for reasons recorded.Rule 6: (After amendment) - The list of the candidates approved/selected by the Commission shall be equal to the number of vacancies only including those for reserved communities/categories notified by the Unit Officers Government. The fallout vacancies if any due to relinquishment and non-joining etc., of selected candidates shall be notified in the next recruitment.Rule 7: Any candidate whose name has been included in a selection list in a direct recruitment prepared by the Commission, on enquiry by the Commission, may relinquish his claim for appointment in writing in the Proforma prescribed by the Commission. The Commission shall there Upon remove the name of such candidate from the selection list and select any other candidate according to rules. The candidate whose name has been so removed from the selection list shall be informed of such removal by the Commission and shall have no right for the said appointment in future with reference to the said selection.? 6. The unamended Rule 6 of the APPSC Rules stated that the ranking list prepared by the Commission for selection in a direct recruitment would remain in force for a period of one year from the date of publication of the selection list, or till the publication of the new selection list, whichever was earlier. It further provided that it would be open for the Commission to select the candidates from the ranking list in place of those who relinquished the selection or who did not join duty within the time given. Thus, the ranking list would in effect function as a waiting list for one year (maximum). After the amendment of Rule 6, such waiting period has been given a go by. The amended Rule 6 of the APPSC Rules specifies that the list of the candidates approved/selected by the Commission shall be equal to the number of vacancies. It further specifies that the fallout vacancies, if any, due to relinquishment and nonjoining etc. of selected candidates shall be notified in the next recruitment, clearly indicating that the process of issuance of waiting list has been discontinued.7. Rule 7 of the APPSC Rules further makes it clear that in case a candidate relinquishes his claim for appointment in writing, the Commission shall remove the name of such candidate from the selection list and select any other candidate according to the Rules. Thus, it is clarified in Rule 7 that selection must be as per the existing Rules.8. In the matter on hand, Respondent No. 1, as mentioned supra, approached the A.P. Administrative Tribunal for appointment four years after the date of relinquishment of the post by Mr. G.V. Ramakrishna Sagar. Firstly, he has to be non-suited due to delay and laches. Secondly, even on merits, we do not find any ground to show leniency in favour of Respondent No.1 inasmuch as the selection, if made in favour of Respondent No. 1, would go against the Rules.9. As discussed above, after the amendment of Rule 6, the system of a waiting list remaining in force for a period of one year has been done away with. The Rule also makes it clear that the fallout vacancies, if any, due to relinquishment and non-joining etc. of the selected candidates shall be notified in the next recruitment. Hence, the Commission does not have the power to invite the next selected candidate if the last selected candidate does not opt to join the post, and must publish the vacant post in the next recruitment only. In view of the same, Respondent No. 1 being a non-selected candidate, cannot urge the Commission to select him based on the unamended Rule 6 of the APPSC Rules. He is bound by the amended Rule 6 of the APPSC Rules, inasmuch as Rule 6 was amended on 22.02.1997.10. In view of the specific mandate of the amended Rule 6 of the APPSC Rules, in our considered opinion, the High Court was not justified in granting relief in favour of Respondent No. 1 ignoring amended Rule 6. Both the Rules i.e. Rule 6 (amended) and Rule 7 have to be read harmoniously. Rule 7 will sub-serve the intention of the amended Rule 6 of the APPSC Rules, since it specifically mentions that selection of a new candidate, after relinquishment of a post by another candidate, shall be done in accordance with the rules, which would mean the rules in force at that time. Furthermore, it has also been brought to our notice that the Commission deleted Rule 7 by G.P. Ms. No. 139 on 28.07.2016, having found that the said rule, to a certain extent, was creating confusion in the selection process.
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### Explanation:
8. In the matter on hand, Respondent No. 1, as mentioned supra, approached the A.P. Administrative Tribunal for appointment four years after the date of relinquishment of the post by Mr. G.V. Ramakrishna Sagar. Firstly, he has to be non-suited due to delay and laches. Secondly, even on merits, we do not find any ground to show leniency in favour of Respondent No.1 inasmuch as the selection, if made in favour of Respondent No. 1, would go against the Rules9. As discussed above, after the amendment of Rule 6, the system of a waiting list remaining in force for a period of one year has been done away with. The Rule also makes it clear that the fallout vacancies, if any, due to relinquishment and non-joining etc. of the selected candidates shall be notified in the next recruitment. Hence, the Commission does not have the power to invite the next selected candidate if the last selected candidate does not opt to join the post, and must publish the vacant post in the next recruitment only. In view of the same, Respondent No. 1 being a non-selected candidate, cannot urge the Commission to select him based on the unamended Rule 6 of the APPSC Rules. He is bound by the amended Rule 6 of the APPSC Rules, inasmuch as Rule 6 was amended on 22.02.199710. In view of the specific mandate of the amended Rule 6 of the APPSC Rules, in our considered opinion, the High Court was not justified in granting relief in favour of Respondent No. 1 ignoring amended Rule 6. Both the Rules i.e. Rule 6 (amended) and Rule 7 have to be read harmoniously. Rule 7 will sub-serve the intention of the amended Rule 6 of the APPSC Rules, since it specifically mentions that selection of a new candidate, after relinquishment of a post by another candidate, shall be done in accordance with the rules, which would mean the rules in force at that time. Furthermore, it has also been brought to our notice that the Commission deleted Rule 7 by G.P. Ms. No. 139 on 28.07.2016, having found that the said rule, to a certain extent, was creating confusion in the selection process.
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State Of Haryana Vs. Inder Prakash Anand H.C.S. & Others | in rank from the High Court and the Governor has been given that special power referred to in Article 311(3).This Court in Shamsher Singh &Anr. v. State of Punjab held that when a case is not of removal or dismissal or reduction in rank any order in respect of exercise of control over the Judicial Officers is by the High Court and no other authority. There cannot be dual control. If State Government is to have the power of deciding whether a Judicial Officer should be retained in service after attaining the age of 55 years up to the age of 58 years that will seriously affect the independence of the judiciary and take away the control vested in the High Court. Compulsory retirement is neither suspension nor removal nor reduction in rank. It is unsound to contend that the Governor and not the High Court has the power to retire a Judicial Officer compulsorily under section 14 of the Punjab General Clauses Act. The suggestion that the High Court recommends and the State Government is to implement the recommendation in the matter of compulsory retirement is to destroy the control of the High Court.The Punjab Civil Service Rules in Rule 3.26(a) deals with compulsory retirement at the age of 58. Rule 5.32(c) deals with retirement at the age of 55.9. Two relevant rules in the Punjab Civil Service Rules in the present case are these. Rule 3.26(a) states that the date of compulsory retirement of a Government servant other than a Class IV Government servant is the date on which he attains the age of 58. Rule 5.32(c) states that a retiring pension is granted to a Government servant who is retired by the appointing authority on or after he attains the age of 55 years by giving him not less than three months notice.10. This Court in Bagchis case (supra) said that control vested in the High Court is over the conduct and discipline of the members of the Judicial Service. Orders passed in disciplinary jurisdiction by the High Court are subject to an appeal as provided in the conditions of service. The High Court further deals with members of the judicial service in accordance with the rules and conditions of service. This Court in Bagchis case (supra ) said that the word "deal" points to disciplinary and not merely administrative jurisdiction. The order terminating the appointment of a member of the service otherwise than upon his reaching the age fixed for superannuation w ill be passed by the State Government on the recommendation of the High Court. This is because the High Court is not the authority for appointing, removing, reducing the rank or terminating the service.It is true that the fixation of the age of superannuation is the right of the State Government. The curtailment of that period under rule governing the conditions of service is a matter pertaining to disciplinary control as well as administrative control. Disciplinary control means no t merely jurisdiction to award punishment for misconduct. It also embraces the power to determine whether the record of a member of the service is satisfactory or not so as to entitle him to continue in service for the full term till he attains the age of superannuation. Administrative, judicial and disciplinary control over members of the Judicial Service is vested solely in the High Court. Premature retirement is made in the exercise of administrative and disciplinary jurisdiction. It is administrative because it is decided in public interest to retire him pre-maturely. It is disciplinary because the decision was taken that he does deserve to continue in service up to the normal age of superannuation and that it is in the public interest to do so.11. This Court held in State of Assam v. Ranga Mahammad and Ors. that the Governor under Article 233 is concerned with the appointment, promotion and posting to the cadre of District Judges but not with the transfer of District Judges already appointed or promoted and posted to the cadre. This Court has held in the Punjab and Haryana case (supra) that the confirmation of District Judges is to be done by the High Court because it fal ls within the control vested in the High Court. The High Court is acquainted with the capacity of work of the members of the Service. In the Punjab &Haryana case (supra) this Court pointed out that if after the appointment of District Judge t ill he is confirmed the State is allowed to control the District Judge there will be dual control. This is not the meaning of "control" in our Constitution.The control vested in the High Court is that if the High Court is of opinion that a pa rticular Judicial Officer is not fit to be retained in service the High Court will communicate that to the Governor because the Governor is the authority to dismiss, remove, reduce in rank or terminate the appointment. In such cases it is the con templation in the Constitution that the Governor as the head of the State will act in harmony with the recommendation of the High Court. If the recommendation of the High Court is not held to be binding on the State consequences will be unfortunate . It is in public interest that the State will accept the recommendation of the High Court. The vesting of complete control over the Subordinate Judiciary in the High Court leads to this that the decision of the High Court in matters within its jurisdiction will bind the State. "The Government will act on the recommendation of the High Court. That is the broad basis of Article 235". See Shamsher Singhs case (supra) at page 841.12. In the present case, the order of the State retiring t he respondent from service after the expiry of three months from the date of the order 20 August, 1971 has been rightly quashed by the High Court. The High Court did not make any recommendation to that effect.13. | 0[ds]The High Court is acquainted with the capacity of work of the members of the Service. In the Punjab &Haryana case (supra) this Court pointed out that if after the appointment of District Judge t ill he is confirmed the State is allowed to control the District Judge there will be dual control. This is not the meaning of "control" in our Constitution.The control vested in the High Court is that if the High Court is of opinion that a pa rticular Judicial Officer is not fit to be retained in service the High Court will communicate that to the Governor because the Governor is the authority to dismiss, remove, reduce in rank or terminate the appointment. In such cases it is the con templation in the Constitution that the Governor as the head of the State will act in harmony with the recommendation of the High Court. If the recommendation of the High Court is not held to be binding on the State consequences will be unfortunate . It is in public interest that the State will accept the recommendation of the High Court. The vesting of complete control over the Subordinate Judiciary in the High Court leads to this that the decision of the High Court in matters within its jurisdiction will bind the State. "The Government will act on the recommendation of the High Court. That is the broad basis of Article 235". See Shamsher Singhs case (supra) at pagethe present case, the order of the State retiring t he respondent from service after the expiry of three months from the date of the order 20 August, 1971 has been rightly quashed by the High Court. The High Court did not make any recommendation to that effect. | 0 | 1,936 | 317 | ### Instruction:
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in rank from the High Court and the Governor has been given that special power referred to in Article 311(3).This Court in Shamsher Singh &Anr. v. State of Punjab held that when a case is not of removal or dismissal or reduction in rank any order in respect of exercise of control over the Judicial Officers is by the High Court and no other authority. There cannot be dual control. If State Government is to have the power of deciding whether a Judicial Officer should be retained in service after attaining the age of 55 years up to the age of 58 years that will seriously affect the independence of the judiciary and take away the control vested in the High Court. Compulsory retirement is neither suspension nor removal nor reduction in rank. It is unsound to contend that the Governor and not the High Court has the power to retire a Judicial Officer compulsorily under section 14 of the Punjab General Clauses Act. The suggestion that the High Court recommends and the State Government is to implement the recommendation in the matter of compulsory retirement is to destroy the control of the High Court.The Punjab Civil Service Rules in Rule 3.26(a) deals with compulsory retirement at the age of 58. Rule 5.32(c) deals with retirement at the age of 55.9. Two relevant rules in the Punjab Civil Service Rules in the present case are these. Rule 3.26(a) states that the date of compulsory retirement of a Government servant other than a Class IV Government servant is the date on which he attains the age of 58. Rule 5.32(c) states that a retiring pension is granted to a Government servant who is retired by the appointing authority on or after he attains the age of 55 years by giving him not less than three months notice.10. This Court in Bagchis case (supra) said that control vested in the High Court is over the conduct and discipline of the members of the Judicial Service. Orders passed in disciplinary jurisdiction by the High Court are subject to an appeal as provided in the conditions of service. The High Court further deals with members of the judicial service in accordance with the rules and conditions of service. This Court in Bagchis case (supra ) said that the word "deal" points to disciplinary and not merely administrative jurisdiction. The order terminating the appointment of a member of the service otherwise than upon his reaching the age fixed for superannuation w ill be passed by the State Government on the recommendation of the High Court. This is because the High Court is not the authority for appointing, removing, reducing the rank or terminating the service.It is true that the fixation of the age of superannuation is the right of the State Government. The curtailment of that period under rule governing the conditions of service is a matter pertaining to disciplinary control as well as administrative control. Disciplinary control means no t merely jurisdiction to award punishment for misconduct. It also embraces the power to determine whether the record of a member of the service is satisfactory or not so as to entitle him to continue in service for the full term till he attains the age of superannuation. Administrative, judicial and disciplinary control over members of the Judicial Service is vested solely in the High Court. Premature retirement is made in the exercise of administrative and disciplinary jurisdiction. It is administrative because it is decided in public interest to retire him pre-maturely. It is disciplinary because the decision was taken that he does deserve to continue in service up to the normal age of superannuation and that it is in the public interest to do so.11. This Court held in State of Assam v. Ranga Mahammad and Ors. that the Governor under Article 233 is concerned with the appointment, promotion and posting to the cadre of District Judges but not with the transfer of District Judges already appointed or promoted and posted to the cadre. This Court has held in the Punjab and Haryana case (supra) that the confirmation of District Judges is to be done by the High Court because it fal ls within the control vested in the High Court. The High Court is acquainted with the capacity of work of the members of the Service. In the Punjab &Haryana case (supra) this Court pointed out that if after the appointment of District Judge t ill he is confirmed the State is allowed to control the District Judge there will be dual control. This is not the meaning of "control" in our Constitution.The control vested in the High Court is that if the High Court is of opinion that a pa rticular Judicial Officer is not fit to be retained in service the High Court will communicate that to the Governor because the Governor is the authority to dismiss, remove, reduce in rank or terminate the appointment. In such cases it is the con templation in the Constitution that the Governor as the head of the State will act in harmony with the recommendation of the High Court. If the recommendation of the High Court is not held to be binding on the State consequences will be unfortunate . It is in public interest that the State will accept the recommendation of the High Court. The vesting of complete control over the Subordinate Judiciary in the High Court leads to this that the decision of the High Court in matters within its jurisdiction will bind the State. "The Government will act on the recommendation of the High Court. That is the broad basis of Article 235". See Shamsher Singhs case (supra) at page 841.12. In the present case, the order of the State retiring t he respondent from service after the expiry of three months from the date of the order 20 August, 1971 has been rightly quashed by the High Court. The High Court did not make any recommendation to that effect.13.
### Response:
0
### Explanation:
The High Court is acquainted with the capacity of work of the members of the Service. In the Punjab &Haryana case (supra) this Court pointed out that if after the appointment of District Judge t ill he is confirmed the State is allowed to control the District Judge there will be dual control. This is not the meaning of "control" in our Constitution.The control vested in the High Court is that if the High Court is of opinion that a pa rticular Judicial Officer is not fit to be retained in service the High Court will communicate that to the Governor because the Governor is the authority to dismiss, remove, reduce in rank or terminate the appointment. In such cases it is the con templation in the Constitution that the Governor as the head of the State will act in harmony with the recommendation of the High Court. If the recommendation of the High Court is not held to be binding on the State consequences will be unfortunate . It is in public interest that the State will accept the recommendation of the High Court. The vesting of complete control over the Subordinate Judiciary in the High Court leads to this that the decision of the High Court in matters within its jurisdiction will bind the State. "The Government will act on the recommendation of the High Court. That is the broad basis of Article 235". See Shamsher Singhs case (supra) at pagethe present case, the order of the State retiring t he respondent from service after the expiry of three months from the date of the order 20 August, 1971 has been rightly quashed by the High Court. The High Court did not make any recommendation to that effect.
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M/s. T.V. Sundram Iyengar & Sons & Another Vs. The State of Madras & Another | ownerships of unfinished bodies in the customers. It may be mentioned that the case of Patnaik and Co., 16 STC 364 = (AIR 1965 SC 1655 ) (Supra) was cited before this Court in the case of Kailash Engineering Co. Shah, J speaking for the Court pointed out the essential differences between the two cases. The case of the assessees in these appeals, as mentioned earlier, falls squarely within the rule laid down in the case of Patnaik and Company. The case of Kailash Engineering Co. cannot, therefore, be of much assistance to the assessees.14. Equally of no assistance to the assessees are the four cases. The State of Madras v. Richardson and Cruddas Ltd., (1968) 21 STC 245 (SC); State of Rajasthan v. Man Industrial Corporation Ltd, 24 STC 349 = (AIR 1969 SC 1245 ); State of Rajasthan v. Nenu ram, (1970) 26 STC 268 (SC) and State of Himachal Pradesh v. Associated Hotels of India Ltd., 29 STC 474 = (AIR 1972 SC 1131 ) to which reference has been made by Mr. Swaminathan on behalf of the assessees. The case of Richardson and Cruddas Ltd. related to a contract for the fabrication, supply and erection of steel structures for a sugar factory. This Court on consideration of the material produced on record held that the contract was for a works contract and not one for sale. The case Man Industrial Corporation Ltd. related to a work for fabrication and fixing certain windows in accordance with specification, designs, drawing and instruction. The windows were to be fixed to the building with rawl plugs in cut stone-works. It was held that the window-leaves did not pass under the terms of the contract as window-leaves and that only on the fixing of the windows as stipulated could the contract be fully executed. The property in the windows, it was observed, passed on the completion of the work and not before, the contract was, therefore, held to be a contract for execution of work and not for sale of goods. Nenu Rams case related to a work of supplying and fixing wooden windows and doors together with frames. The windows had also thereafter to be painted. It was held that under the contract the goods were not sold as movable and that the property therein passed only when the windows and frames were fixed on the site. The liability to pay sales tax was consequently not attracted. The question which arose for determination in the case of Associated Hotels of India Ltd. was whether a hotelier was liable to pay sales tax in respect of meals served to the guest coming there for stay. It was held that the hotelier served meals as part of the amenities incidental to the sevices. The revenue was held not entitled to split up the transaction into two parts one of service and the other of sale of foodstuff. No liability to pay sales tax could consequently be fastened on the hotelier.15. It is plain that there is no parallel between the facts of the present appeals and those of the above mentioned four cases.16. The case of Commissioner of Commercial Taxes, Mysore, Bangalore v. Hindustan Aeronautics Ltd. 29 STC 438 = (AIR 1972 SC 744 ) related to the manufacture and supply of three models of railway coaches to the Railway Board. Advance "on account" payment to the extent of 90 per cent of the material to be use was made to the assessee on production of the inspection certificate. The stores were held as the property of the President and in trust for him on account of the advance. The property in the materials which were used for the construction of the coaches became the property of the President before they were used. The construction was done at a separately located shed and no other construction was undertaken therein. There was no possibility of any material for which advance was not drawn being used for the construction of the coaches. It was held that the transaction for the manufacture and supply of the coaches was a pure works contract. When all the materials used in the construction of a coach belonged to the railway, there could be no sale of the coach itself. The difference between the price of a coach and the cost of material could only be the cost of the services rendered by the assessee. Bare narration of the facts of the above case would show the difference between this case and the cases which are the subject-matter of these appeals.17. Reference has also been made by Mr. Swaminathan to observatiuons on page 167 of Banjamin on Sales (8th Edition) which were based on the case of Anglo-Egyptian Navigation Co. v. Pennie, (1875) 10 CP 271. Those observations were also referred to in the case of Patnaik and Company 16 STC 364 = (AIR 1965 SC 1655 ) (supra) Sikri J. then dealt with the facts of the case of Anglo-Egyptian Navigation Co, and held that case was no authority for the proposition that whenever a contract provides for the fixing of chattel to another chattel, there is no sale of goods. The learned Judge in this connection gave an illustration of a dealer fitting tyres supplied by him to the car of the customer could anyone deny that there had been sale of the tyres by the dealer to the customer, even though the fitting of the tyres was not an easy operation and needed an expert hand?18. It may be mentioned that the Allahabad High Court in the case of Bajoria Halwasiya Service Station v. The State of Uttar Pradesh (1970) 26 STC 108 (All) and Andhra Pradesh High Court in the case of Porthula Subba Rao v. The State of A. P. (1972) 30 STC 69 (Andh Pra) have held that a transaction relating to the construction of the bus bodies by the assessee on chassis supplied by customers constitutes a contract of sale of goods. | 0[ds]6. The return filed by the assessee-firm for the year 1960-61 showed receipt of Rs. 9,74, 460 on account of the bus bodies constructed under the above agreement. The Commercial Tax Officer held that the said amount represented the prices of the bus bodies received by the assessee and included it in the taxable turnover under the Mysore Sales Tax Act, 1957. On appeal the Deputy Commissioner of Commercial Taxes held that the agreement between the assessee and the Government was in the nature of a works contract and as such there was no sale of the bus bodies. The Commissioner in exercise of his revisional power set aside the order of the Deputy Commissioner and restored that of the Commercial Tax Officer. In the opinion of the Commissioner, there was a sale of bus bodies by the assessee. The matter was then taken up by the assessee in appeal to the Mysore High Court. The High Court set aside the order of the Commissioner and restored that of the Deputy Commissioner. In the opinion of the High Court, the agreement between the assessee and the Government was for works contract. The High Court in this context gave certain reasons to which reference would be made at the appropriate stagedistinction between the two contracts is often a fine one. A contract of sale is a contract whose main object is the transfer of the property in, and the delivery of the possession of a chattel as a chattel to the buyer. Where the main object of work undertaken by the payee of the price is not the transfer of a chattel qua chattel, the contract is one for work and labour. The test is whether or not the work and labour bestowed and in anything that can properly become the subject of sale; neither the ownership of the materials, nor the value of the skill labour as compared with the value of the materials, is conclusive, although such matters may be taken into consideration in determining, in the circumstances of a particular case, whether the contract is in substance one for work and labour or one for the sale of anext point to be noticed is that under the contract the property in the bus body does not pass to the Government till the chassis with the bus body in delivered at te destination or destinations to be named by the Controller except in the case contemplated in clause 6 of the agreement. That clause provides that if some work is not satisfactorily done and the Body Builder on receipt of a written order does not dismantle or replace such defective work or material at his own cost within seven days, the Controller would be entitled to get the balance of the work done by another agency and recover the difference in cost from the Body Builder. The Controller is entitled for this purpose to take delivery of the unfinished body. But even in this case the property in the unfinished body would not pass to the Government till the unfinished body is seized.The sailent features of the dealings between the two assessees with whom we are concerned and their customers as they emerge from the facts given above are that the property in the material used by the assessees in constructing the bus bodies never passed to their customers during the course of construction. It was only when the complete bus with the body fitted to the chasssis was delivered to the customer that the property in the bus body passed to the customer. There was nothing to prevent the assessees from removing a plank, or other material after fixing it to a chassis, and using it for a different purpose or for a different bus body. The present is also not the case wherein the assessee undertakes to construct some building or set up a factory plant wherein the material used can be said to become the property of the other party by invoking the theory of ascretion. It is no doubt true that the bus bodies supplied by the assessees were not readymade and had, if necessary to be constructed bit by bit and plank by plank, according to specifications but that fact would not make any amterial difference. | 0 | 5,883 | 754 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
ownerships of unfinished bodies in the customers. It may be mentioned that the case of Patnaik and Co., 16 STC 364 = (AIR 1965 SC 1655 ) (Supra) was cited before this Court in the case of Kailash Engineering Co. Shah, J speaking for the Court pointed out the essential differences between the two cases. The case of the assessees in these appeals, as mentioned earlier, falls squarely within the rule laid down in the case of Patnaik and Company. The case of Kailash Engineering Co. cannot, therefore, be of much assistance to the assessees.14. Equally of no assistance to the assessees are the four cases. The State of Madras v. Richardson and Cruddas Ltd., (1968) 21 STC 245 (SC); State of Rajasthan v. Man Industrial Corporation Ltd, 24 STC 349 = (AIR 1969 SC 1245 ); State of Rajasthan v. Nenu ram, (1970) 26 STC 268 (SC) and State of Himachal Pradesh v. Associated Hotels of India Ltd., 29 STC 474 = (AIR 1972 SC 1131 ) to which reference has been made by Mr. Swaminathan on behalf of the assessees. The case of Richardson and Cruddas Ltd. related to a contract for the fabrication, supply and erection of steel structures for a sugar factory. This Court on consideration of the material produced on record held that the contract was for a works contract and not one for sale. The case Man Industrial Corporation Ltd. related to a work for fabrication and fixing certain windows in accordance with specification, designs, drawing and instruction. The windows were to be fixed to the building with rawl plugs in cut stone-works. It was held that the window-leaves did not pass under the terms of the contract as window-leaves and that only on the fixing of the windows as stipulated could the contract be fully executed. The property in the windows, it was observed, passed on the completion of the work and not before, the contract was, therefore, held to be a contract for execution of work and not for sale of goods. Nenu Rams case related to a work of supplying and fixing wooden windows and doors together with frames. The windows had also thereafter to be painted. It was held that under the contract the goods were not sold as movable and that the property therein passed only when the windows and frames were fixed on the site. The liability to pay sales tax was consequently not attracted. The question which arose for determination in the case of Associated Hotels of India Ltd. was whether a hotelier was liable to pay sales tax in respect of meals served to the guest coming there for stay. It was held that the hotelier served meals as part of the amenities incidental to the sevices. The revenue was held not entitled to split up the transaction into two parts one of service and the other of sale of foodstuff. No liability to pay sales tax could consequently be fastened on the hotelier.15. It is plain that there is no parallel between the facts of the present appeals and those of the above mentioned four cases.16. The case of Commissioner of Commercial Taxes, Mysore, Bangalore v. Hindustan Aeronautics Ltd. 29 STC 438 = (AIR 1972 SC 744 ) related to the manufacture and supply of three models of railway coaches to the Railway Board. Advance "on account" payment to the extent of 90 per cent of the material to be use was made to the assessee on production of the inspection certificate. The stores were held as the property of the President and in trust for him on account of the advance. The property in the materials which were used for the construction of the coaches became the property of the President before they were used. The construction was done at a separately located shed and no other construction was undertaken therein. There was no possibility of any material for which advance was not drawn being used for the construction of the coaches. It was held that the transaction for the manufacture and supply of the coaches was a pure works contract. When all the materials used in the construction of a coach belonged to the railway, there could be no sale of the coach itself. The difference between the price of a coach and the cost of material could only be the cost of the services rendered by the assessee. Bare narration of the facts of the above case would show the difference between this case and the cases which are the subject-matter of these appeals.17. Reference has also been made by Mr. Swaminathan to observatiuons on page 167 of Banjamin on Sales (8th Edition) which were based on the case of Anglo-Egyptian Navigation Co. v. Pennie, (1875) 10 CP 271. Those observations were also referred to in the case of Patnaik and Company 16 STC 364 = (AIR 1965 SC 1655 ) (supra) Sikri J. then dealt with the facts of the case of Anglo-Egyptian Navigation Co, and held that case was no authority for the proposition that whenever a contract provides for the fixing of chattel to another chattel, there is no sale of goods. The learned Judge in this connection gave an illustration of a dealer fitting tyres supplied by him to the car of the customer could anyone deny that there had been sale of the tyres by the dealer to the customer, even though the fitting of the tyres was not an easy operation and needed an expert hand?18. It may be mentioned that the Allahabad High Court in the case of Bajoria Halwasiya Service Station v. The State of Uttar Pradesh (1970) 26 STC 108 (All) and Andhra Pradesh High Court in the case of Porthula Subba Rao v. The State of A. P. (1972) 30 STC 69 (Andh Pra) have held that a transaction relating to the construction of the bus bodies by the assessee on chassis supplied by customers constitutes a contract of sale of goods.
### Response:
0
### Explanation:
6. The return filed by the assessee-firm for the year 1960-61 showed receipt of Rs. 9,74, 460 on account of the bus bodies constructed under the above agreement. The Commercial Tax Officer held that the said amount represented the prices of the bus bodies received by the assessee and included it in the taxable turnover under the Mysore Sales Tax Act, 1957. On appeal the Deputy Commissioner of Commercial Taxes held that the agreement between the assessee and the Government was in the nature of a works contract and as such there was no sale of the bus bodies. The Commissioner in exercise of his revisional power set aside the order of the Deputy Commissioner and restored that of the Commercial Tax Officer. In the opinion of the Commissioner, there was a sale of bus bodies by the assessee. The matter was then taken up by the assessee in appeal to the Mysore High Court. The High Court set aside the order of the Commissioner and restored that of the Deputy Commissioner. In the opinion of the High Court, the agreement between the assessee and the Government was for works contract. The High Court in this context gave certain reasons to which reference would be made at the appropriate stagedistinction between the two contracts is often a fine one. A contract of sale is a contract whose main object is the transfer of the property in, and the delivery of the possession of a chattel as a chattel to the buyer. Where the main object of work undertaken by the payee of the price is not the transfer of a chattel qua chattel, the contract is one for work and labour. The test is whether or not the work and labour bestowed and in anything that can properly become the subject of sale; neither the ownership of the materials, nor the value of the skill labour as compared with the value of the materials, is conclusive, although such matters may be taken into consideration in determining, in the circumstances of a particular case, whether the contract is in substance one for work and labour or one for the sale of anext point to be noticed is that under the contract the property in the bus body does not pass to the Government till the chassis with the bus body in delivered at te destination or destinations to be named by the Controller except in the case contemplated in clause 6 of the agreement. That clause provides that if some work is not satisfactorily done and the Body Builder on receipt of a written order does not dismantle or replace such defective work or material at his own cost within seven days, the Controller would be entitled to get the balance of the work done by another agency and recover the difference in cost from the Body Builder. The Controller is entitled for this purpose to take delivery of the unfinished body. But even in this case the property in the unfinished body would not pass to the Government till the unfinished body is seized.The sailent features of the dealings between the two assessees with whom we are concerned and their customers as they emerge from the facts given above are that the property in the material used by the assessees in constructing the bus bodies never passed to their customers during the course of construction. It was only when the complete bus with the body fitted to the chasssis was delivered to the customer that the property in the bus body passed to the customer. There was nothing to prevent the assessees from removing a plank, or other material after fixing it to a chassis, and using it for a different purpose or for a different bus body. The present is also not the case wherein the assessee undertakes to construct some building or set up a factory plant wherein the material used can be said to become the property of the other party by invoking the theory of ascretion. It is no doubt true that the bus bodies supplied by the assessees were not readymade and had, if necessary to be constructed bit by bit and plank by plank, according to specifications but that fact would not make any amterial difference.
|
M/S EMBASSY PROPERTY DEVELOPMENTS PVT. LTD Vs. THE STATE OF KARNATAKA | Section 18 speaks about the duties of the interim resolution professional and Section 25 speaks about the duties of resolution professional. These two provisions use the word assets, while Section 20(1) uses the word property together with the word value. Sections 18 and 25 do not use the expression property. Another important aspect is that under Section 25 (2) (b) of IBC, 2016, the resolution professional is obliged to represent and act on behalf of the corporate debtor with third parties and exercise rights for the benefit of the corporate debtor in judicial, quasi-judicial and arbitration proceedings. Section 25(1) and 25(2)(b) reads as follows: 25. Duties of resolution professional – (1) It shall be the duty of the resolution professional to preserve and protect the assets of the corporate debtor, including the continued business operations of the corporate debtor. (2) For the purposes of sub-section (1), the resolution professional shall undertake the following actions:- (a)…………. (b) represent and act on behalf of the corporate debtor with third parties, exercise rights for the benefit of the corporate debtor in judicial, quasi judicial and arbitration proceedings. This shows that wherever the corporate debtor has to exercise rights in judicial, quasi-judicial proceedings, the resolution professional cannot short-circuit the same and bring a claim before NCLT taking advantage of Section 60(5). 40. Therefore in the light of the statutory scheme as culled out from various provisions of the IBC, 2016 it is clear that wherever the corporate debtor has to exercise a right that falls outside the purview of the IBC, 2016 especially in the realm of the public law, they cannot, through the resolution professional, take a bypass and go before NCLT for the enforcement of such a right. 41. In fact the Resolution Professional in this case appears to have understood this legal position correctly, in the initial stages. This is why when the Government of Karnataka did not grant the benefit of deemed extension, even after the expiry of the lease on 25.05.2018, the Resolution Professional moved the High Court by way of a writ petition in WP No. 23075 of 2018. The prayer made in WP No. 23075 of 2018 was for a declaration that the mining lease should be deemed to be valid upto 31.03.2020. If NCLT was omnipotent, the Resolution Professional would have moved the NCLT itself for such a declaration. But he did not, as he understood the legal position correctly. 42. After the filing of the first writ petition (WP No. 23075 of 2018), the Government of Karnataka passed an order dated 26.09.2018 rejecting the claim. Therefore the Resolution Professional, representing the Corporate Debtor filed a memo before the High Court seeking withdrawal of the writ petition with liberty to file a fresh writ petition. However the High Court, while dismissing the writ petition by order dated 28.09.2018 was little considerate and it disposed of the writ petition as withdrawn with liberty to take recourse to appropriate remedies in accordance with law. Perhaps taking advantage of this liberty, the Resolution Applicant moved the NCLT against the order of rejection passed by the Government of Karnataka. If NCLT was not considered by the Resolution Professional, in the first instance, to be empowered to issue a declaration of deemed extension of lease, we fail to understand how NCLT could be considered to have the power of judicial review over the order of rejection. 43. The fact that the Government of Karnataka agreed in the second writ petition WP No. 5002 of 2019 to go back to the NCLT and contest the Miscellaneous Application filed by the Resolution Professional, would not tantamount to conceding the jurisdiction of NCLT. In any case a tribunal which is the creature of a statute cannot be clothed with a jurisdiction, by any concession made by a party. 44. A lot of stress was made on the effect of Section 14 of IBC, 2016 on the deemed extension of lease. But we do not think that the moratorium provided for in Section 14 could have any impact upon the right of the Government to refuse the extension of lease. The purpose of moratorium is only to preserve the status quo and not to create a new right. Therefore nothing turns on Section 14 of IBC, 2016. Even Section 14 (1) (d), of IBC, 2016, which prohibits, during the period of moratorium, the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor, will not go to the rescue of the corporate debtor, since what is prohibited therein, is only the right not to be dispossessed, but not the right to have renewal of the lease of such property. In fact the right not to be dispossessed, found in Section 14 (1) (d), will have nothing to do with the rights conferred by a mining lease especially on a government land. What is granted under the deed of mining lease in ML 2293 dated 04.01.2001, by the Government of Karnataka, to the Corporate Debtor, was the right to mine, excavate and recover iron ore and red oxide for a specified period of time. The Deed of Lease contains a Schedule divided into several parts. Part-I of the Schedule describes the location and area of the lease. Part-II indicates the liberties and privileges of the lessee. The restrictions and conditions subject to which the grant can be enjoyed are found in Part-III of the Schedule. The liberties, powers and privileges reserved to the Government, despite the grant, are indicated in Part-IV. This Part-IV entitles the Government to work on other minerals (other than iron ore and red oxide) on the same land, even during the subsistence of the lease. Therefore, what was granted to the Corporate Debtor was not an exclusive possession of the area in question, so as to enable the Resolution Professional to invoke Section 14 (1) (d). Section 14 (1) (d) may have no application to situations of this nature. | 1[ds]12. For finding an answer to the question on hand, the scope of the jurisdiction and the nature of the powers exercised by – (i) the High Court under Article 226 of the Constitution and (ii) the NCLT and NCLAT under the provisions of IBC, 2016 are to be seen24. Therefore in so far as the question of exercise of the power conferred by Article 226, despite the availability of a statutory alternative remedy, is concerned, Anisminic cannot be relied upon. The distinction between the lack of jurisdiction and the wrongful exercise of the available jurisdiction, should certainly be taken into account by High Courts, when Article 226 is sought to be invoked bypassing a statutory alternative remedy provided by a special statute28. Therefore as rightly contended by the learned Attorney General, the decision of the Government of Karnataka to refuse the benefit of deemed extension of lease, is in the public law domain and hence the correctness of the said decision can be called into question only in a superior court which is vested with the power of judicial review over administrative action.The NCLT, being a creature of a special statute to discharge certain specific functions, cannot be elevated to the status of a superior court having the power of judicial review over administrative action29. The NCLT is not even a Civil Court, which has jurisdiction by virtue of Section 9 of the Code of Civil Procedure to try all suits of a civil nature excepting suits, of which their cognizance is either expressly or impliedly barred. Therefore NCLT can exercise only such powers within the contours of jurisdiction as prescribed by the statute, the law in respect of which, it is called upon to administerThough what is found in Sub-section (2) of Section 180 is not found in the corresponding provision in Part II namely, Section 63, a similar provision is incorporated in an unrelated provision namely Section 64, which primarily deals with expeditious disposal of applications. Thus, there appears to be some mix-up. However, we are not concerned about the same in this case and we have made a reference to the same only because of Sub-section (4) of Section 60, vesting upon the NCLT, all the powers of the DRT38. But the said argument cannot be sustained for the simple reason that the duties of a resolution professional are entirely different from the jurisdiction and powers of NCLT. In fact Section 20(1) cannot be read in isolation, but has to be read in conjunction with Section 18(f)(vi) of the IBC, 2016 together with the Explanation thereunder40. Therefore in the light of the statutory scheme as culled out from various provisions of the IBC, 2016 it is clear that wherever the corporate debtor has to exercise a right that falls outside the purview of the IBC, 2016 especially in the realm of the public law, they cannot, through the resolution professional, take a bypass and go before NCLT for the enforcement of such a. In fact the Resolution Professional in this case appears to have understood this legal position correctly, in the initial stages. This is why when the Government of Karnataka did not grant the benefit of deemed extension, even after the expiry of the lease on 25.05.2018, the Resolution Professional moved the High Court by way of a writ petition in WP No. 23075 of 2018. The prayer made in WP No. 23075 of 2018 was for a declaration that the mining lease should be deemed to be valid upto 31.03.2020. If NCLT was omnipotent, the Resolution Professional would have moved the NCLT itself for such a declaration. But he did not, as he understood the legal position correctly42. After the filing of the first writ petition (WP No. 23075 of 2018), the Government of Karnataka passed an order dated 26.09.2018 rejecting the claim. Therefore the Resolution Professional, representing the Corporate Debtor filed a memo before the High Court seeking withdrawal of the writ petition with liberty to file a fresh writ petition. However the High Court, while dismissing the writ petition by order dated 28.09.2018 was little considerate and it disposed of the writ petition as withdrawn with liberty to take recourse to appropriate remedies in accordance with law. Perhaps taking advantage of this liberty, the Resolution Applicant moved the NCLT against the order of rejection passed by the Government of Karnataka. If NCLT was not considered by the Resolution Professional, in the first instance, to be empowered to issue a declaration of deemed extension of lease, we fail to understand how NCLT could be considered to have the power of judicial review over the order of rejection43. The fact that the Government of Karnataka agreed in the second writ petition WP No. 5002 of 2019 to go back to the NCLT and contest the Miscellaneous Application filed by the Resolution Professional, would not tantamount to conceding the jurisdiction of NCLT. In any case a tribunal which is the creature of a statute cannot be clothed with a jurisdiction, by any concession made by a party44. A lot of stress was made on the effect of Section 14 of IBC, 2016 on the deemed extension of lease. But we do not think that the moratorium provided for in Section 14 could have any impact upon the right of the Government to refuse the extension of lease. The purpose of moratorium is only to preserve the status quo and not to create a new right. Therefore nothing turns on Section 14 of IBC, 2016. Even Section 14 (1) (d), of IBC, 2016, which prohibits, during the period of moratorium, the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor, will not go to the rescue of the corporate debtor, since what is prohibited therein, is only the right not to be dispossessed, but not the right to have renewal of the lease of such property. In fact the right not to be dispossessed, found in Section 14 (1) (d), will have nothing to do with the rights conferred by a mining lease especially on a government land. What is granted under the deed of mining lease in ML 2293 dated 04.01.2001, by the Government of Karnataka, to the Corporate Debtor, was the right to mine, excavate and recover iron ore and red oxide for a specified period of time. The Deed of Lease contains a Schedule divided into several parts. Part-I of the Schedule describes the location and area of the lease. Part-II indicates the liberties and privileges of the lessee. The restrictions and conditions subject to which the grant can be enjoyed are found in Part-III of the Schedule. The liberties, powers and privileges reserved to the Government, despite the grant, are indicated in Part-IV. This Part-IV entitles the Government to work on other minerals (other than iron ore and red oxide) on the same land, even during the subsistence of the lease. Therefore, what was granted to the Corporate Debtor was not an exclusive possession of the area in question, so as to enable the Resolution Professional to invoke Section 14 (1) (d). Section 14 (1) (d) may have no application to situations of this nature45. Therefore, in fine, our answer to the first question would be that NCLT did not have jurisdiction to entertain an application against the Government of Karnataka for a direction to execute Supplemental Lease Deeds for the extension of the mining lease. Since NCLT chose to exercise a jurisdiction not vested in it in law, the High Court of Karnataka was justified in entertaining the writ petition, on the basis that NCLT was coram non judice49. The objection of the appellants in this regard is well founded50. Even fraudulent tradings carried on by the Corporate Debtor during the insolvency resolution, can be inquired into by the Adjudicating Authority under Section 66. Section 69 makes an officer of the corporate debtor and the corporate debtor liable for punishment, for carrying on transactions with a view to defraud creditors. Therefore, NCLT is vested with the power to inquire into (i) fraudulent initiation of proceedings as well as (ii) fraudulent transactions. It is significant to note that Section 65(1) deals with a situation where CIRP is initiated fraudulently for any purpose other than for the resolution of insolvency or liquidation51. Therefore, if, as contended by the Government of Karnataka, the CIRP had been initiated by one and the same person taking different avatars, not for the genuine purpose of resolution of insolvency or liquidation, but for the collateral purpose of cornering the mine and the mining lease, the same would fall squarely within the mischief addressed by Section 65(1). Therefore, it is clear that NCLT has jurisdiction to enquire into allegations of fraud. As a corollary, NCLAT will also have jurisdiction. Hence, fraudulent initiation of CIRP cannot be a ground to bypass the alternative remedy of appeal provided in Section 61 | 1 | 10,505 | 1,687 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
Section 18 speaks about the duties of the interim resolution professional and Section 25 speaks about the duties of resolution professional. These two provisions use the word assets, while Section 20(1) uses the word property together with the word value. Sections 18 and 25 do not use the expression property. Another important aspect is that under Section 25 (2) (b) of IBC, 2016, the resolution professional is obliged to represent and act on behalf of the corporate debtor with third parties and exercise rights for the benefit of the corporate debtor in judicial, quasi-judicial and arbitration proceedings. Section 25(1) and 25(2)(b) reads as follows: 25. Duties of resolution professional – (1) It shall be the duty of the resolution professional to preserve and protect the assets of the corporate debtor, including the continued business operations of the corporate debtor. (2) For the purposes of sub-section (1), the resolution professional shall undertake the following actions:- (a)…………. (b) represent and act on behalf of the corporate debtor with third parties, exercise rights for the benefit of the corporate debtor in judicial, quasi judicial and arbitration proceedings. This shows that wherever the corporate debtor has to exercise rights in judicial, quasi-judicial proceedings, the resolution professional cannot short-circuit the same and bring a claim before NCLT taking advantage of Section 60(5). 40. Therefore in the light of the statutory scheme as culled out from various provisions of the IBC, 2016 it is clear that wherever the corporate debtor has to exercise a right that falls outside the purview of the IBC, 2016 especially in the realm of the public law, they cannot, through the resolution professional, take a bypass and go before NCLT for the enforcement of such a right. 41. In fact the Resolution Professional in this case appears to have understood this legal position correctly, in the initial stages. This is why when the Government of Karnataka did not grant the benefit of deemed extension, even after the expiry of the lease on 25.05.2018, the Resolution Professional moved the High Court by way of a writ petition in WP No. 23075 of 2018. The prayer made in WP No. 23075 of 2018 was for a declaration that the mining lease should be deemed to be valid upto 31.03.2020. If NCLT was omnipotent, the Resolution Professional would have moved the NCLT itself for such a declaration. But he did not, as he understood the legal position correctly. 42. After the filing of the first writ petition (WP No. 23075 of 2018), the Government of Karnataka passed an order dated 26.09.2018 rejecting the claim. Therefore the Resolution Professional, representing the Corporate Debtor filed a memo before the High Court seeking withdrawal of the writ petition with liberty to file a fresh writ petition. However the High Court, while dismissing the writ petition by order dated 28.09.2018 was little considerate and it disposed of the writ petition as withdrawn with liberty to take recourse to appropriate remedies in accordance with law. Perhaps taking advantage of this liberty, the Resolution Applicant moved the NCLT against the order of rejection passed by the Government of Karnataka. If NCLT was not considered by the Resolution Professional, in the first instance, to be empowered to issue a declaration of deemed extension of lease, we fail to understand how NCLT could be considered to have the power of judicial review over the order of rejection. 43. The fact that the Government of Karnataka agreed in the second writ petition WP No. 5002 of 2019 to go back to the NCLT and contest the Miscellaneous Application filed by the Resolution Professional, would not tantamount to conceding the jurisdiction of NCLT. In any case a tribunal which is the creature of a statute cannot be clothed with a jurisdiction, by any concession made by a party. 44. A lot of stress was made on the effect of Section 14 of IBC, 2016 on the deemed extension of lease. But we do not think that the moratorium provided for in Section 14 could have any impact upon the right of the Government to refuse the extension of lease. The purpose of moratorium is only to preserve the status quo and not to create a new right. Therefore nothing turns on Section 14 of IBC, 2016. Even Section 14 (1) (d), of IBC, 2016, which prohibits, during the period of moratorium, the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor, will not go to the rescue of the corporate debtor, since what is prohibited therein, is only the right not to be dispossessed, but not the right to have renewal of the lease of such property. In fact the right not to be dispossessed, found in Section 14 (1) (d), will have nothing to do with the rights conferred by a mining lease especially on a government land. What is granted under the deed of mining lease in ML 2293 dated 04.01.2001, by the Government of Karnataka, to the Corporate Debtor, was the right to mine, excavate and recover iron ore and red oxide for a specified period of time. The Deed of Lease contains a Schedule divided into several parts. Part-I of the Schedule describes the location and area of the lease. Part-II indicates the liberties and privileges of the lessee. The restrictions and conditions subject to which the grant can be enjoyed are found in Part-III of the Schedule. The liberties, powers and privileges reserved to the Government, despite the grant, are indicated in Part-IV. This Part-IV entitles the Government to work on other minerals (other than iron ore and red oxide) on the same land, even during the subsistence of the lease. Therefore, what was granted to the Corporate Debtor was not an exclusive possession of the area in question, so as to enable the Resolution Professional to invoke Section 14 (1) (d). Section 14 (1) (d) may have no application to situations of this nature.
### Response:
1
### Explanation:
of such a. In fact the Resolution Professional in this case appears to have understood this legal position correctly, in the initial stages. This is why when the Government of Karnataka did not grant the benefit of deemed extension, even after the expiry of the lease on 25.05.2018, the Resolution Professional moved the High Court by way of a writ petition in WP No. 23075 of 2018. The prayer made in WP No. 23075 of 2018 was for a declaration that the mining lease should be deemed to be valid upto 31.03.2020. If NCLT was omnipotent, the Resolution Professional would have moved the NCLT itself for such a declaration. But he did not, as he understood the legal position correctly42. After the filing of the first writ petition (WP No. 23075 of 2018), the Government of Karnataka passed an order dated 26.09.2018 rejecting the claim. Therefore the Resolution Professional, representing the Corporate Debtor filed a memo before the High Court seeking withdrawal of the writ petition with liberty to file a fresh writ petition. However the High Court, while dismissing the writ petition by order dated 28.09.2018 was little considerate and it disposed of the writ petition as withdrawn with liberty to take recourse to appropriate remedies in accordance with law. Perhaps taking advantage of this liberty, the Resolution Applicant moved the NCLT against the order of rejection passed by the Government of Karnataka. If NCLT was not considered by the Resolution Professional, in the first instance, to be empowered to issue a declaration of deemed extension of lease, we fail to understand how NCLT could be considered to have the power of judicial review over the order of rejection43. The fact that the Government of Karnataka agreed in the second writ petition WP No. 5002 of 2019 to go back to the NCLT and contest the Miscellaneous Application filed by the Resolution Professional, would not tantamount to conceding the jurisdiction of NCLT. In any case a tribunal which is the creature of a statute cannot be clothed with a jurisdiction, by any concession made by a party44. A lot of stress was made on the effect of Section 14 of IBC, 2016 on the deemed extension of lease. But we do not think that the moratorium provided for in Section 14 could have any impact upon the right of the Government to refuse the extension of lease. The purpose of moratorium is only to preserve the status quo and not to create a new right. Therefore nothing turns on Section 14 of IBC, 2016. Even Section 14 (1) (d), of IBC, 2016, which prohibits, during the period of moratorium, the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor, will not go to the rescue of the corporate debtor, since what is prohibited therein, is only the right not to be dispossessed, but not the right to have renewal of the lease of such property. In fact the right not to be dispossessed, found in Section 14 (1) (d), will have nothing to do with the rights conferred by a mining lease especially on a government land. What is granted under the deed of mining lease in ML 2293 dated 04.01.2001, by the Government of Karnataka, to the Corporate Debtor, was the right to mine, excavate and recover iron ore and red oxide for a specified period of time. The Deed of Lease contains a Schedule divided into several parts. Part-I of the Schedule describes the location and area of the lease. Part-II indicates the liberties and privileges of the lessee. The restrictions and conditions subject to which the grant can be enjoyed are found in Part-III of the Schedule. The liberties, powers and privileges reserved to the Government, despite the grant, are indicated in Part-IV. This Part-IV entitles the Government to work on other minerals (other than iron ore and red oxide) on the same land, even during the subsistence of the lease. Therefore, what was granted to the Corporate Debtor was not an exclusive possession of the area in question, so as to enable the Resolution Professional to invoke Section 14 (1) (d). Section 14 (1) (d) may have no application to situations of this nature45. Therefore, in fine, our answer to the first question would be that NCLT did not have jurisdiction to entertain an application against the Government of Karnataka for a direction to execute Supplemental Lease Deeds for the extension of the mining lease. Since NCLT chose to exercise a jurisdiction not vested in it in law, the High Court of Karnataka was justified in entertaining the writ petition, on the basis that NCLT was coram non judice49. The objection of the appellants in this regard is well founded50. Even fraudulent tradings carried on by the Corporate Debtor during the insolvency resolution, can be inquired into by the Adjudicating Authority under Section 66. Section 69 makes an officer of the corporate debtor and the corporate debtor liable for punishment, for carrying on transactions with a view to defraud creditors. Therefore, NCLT is vested with the power to inquire into (i) fraudulent initiation of proceedings as well as (ii) fraudulent transactions. It is significant to note that Section 65(1) deals with a situation where CIRP is initiated fraudulently for any purpose other than for the resolution of insolvency or liquidation51. Therefore, if, as contended by the Government of Karnataka, the CIRP had been initiated by one and the same person taking different avatars, not for the genuine purpose of resolution of insolvency or liquidation, but for the collateral purpose of cornering the mine and the mining lease, the same would fall squarely within the mischief addressed by Section 65(1). Therefore, it is clear that NCLT has jurisdiction to enquire into allegations of fraud. As a corollary, NCLAT will also have jurisdiction. Hence, fraudulent initiation of CIRP cannot be a ground to bypass the alternative remedy of appeal provided in Section 61
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Titanor Components Limited Vs. Commissioner of Income Tax | by calling report from such Assessing Officer. The said provision permits the appellate authority to grant opportunity of hearing to the Assessing Officer. Sub-section (3) requires the appellate authority to pass an order, in writing, admitting the claim of the assessee or then rejecting his claim if it is not so satisfied. Sub-section (4) states that when the claim is admitted, the appellate authority may dispose of the relevant case without awaiting the final decision on the question of law in the other case and the assessee is not entitled to raise, in relation to that case, such question of law in appeal before any appellate authority or the High Court or the Supreme Court.8. Thus, if in the present circumstances the claim of the assessee/present appellant was accepted by the ITAT, its appeals could have been disposed of in terms of Section 158(4)(a) and he would not have been required to file Appeals before this Court as contemplated by clause (b) of sub-section (4). The provisions clearly show that the ITAT is required to pass an order after ascertaining the claim made by the assessee about other case. In the facts before this Court, the ITAT has overlooked the provisions of sub-section (2)(3)(4) and (5) of Section 158A totally and has considered only the following portion of Section 158A(1):a declaration in the prescribed form and verified in the prescribed manner, that if the [Assessing] Officer or the appellate authority, as the case may be, agrees to apply the in the relevant case the final decision on the question of law in other case, he shall not raise such question of law in the relevant case in appeal before any appellate authority or [in appeal before the High Court under section 260A or in appeal before the Supreme Court under section 261].9. Thus salutary provisions made by the Parliament to put an end to unnecessary litigation and to reduce number of cases required to be followed in letter and spirit, have been defeated in the present matter. The word agrees used in Section 158A(1) does not mean that the Assessing Office or the appellate authority has been given any unbridled authority not to agree. The subsequent provisions clearly require the authority to consider the facts and thereafter to either admit the declaration filed by the assessee or then reject it. The appellate authority is therefore required to judicially evaluate the reasons for not agreeing given by Assessing Officer and pass a reasoned Order keeping in mind the design in adding Section 158A to the Act. It is because of this application of mind envisaged by Section 158A that an order passed by the appellate authority or the assessing officer has not been made amenable to further challenge either by way of an appeal or revision or reference. The Parliament expects the authorities empowered under the said provisions to act in accordance with the spirit of the provisions made and, therefore, only after an order is made either way with due application of mind, the order has been made not appealable or not revisable. As already observed above, the ITAT here has failed to apply its mind as required and therefore, the very purpose of putting Section 158A in the statute book has been frustrated.10. Mr. Rivonkar has argued that the order passed under Section 158A(3) is not open to challenge in the present appeals. The learned Senior Advocate has contended that the impugned order is under Section 254(1) of the Act. The scheme of Section 158A clearly shows that after declaration as contemplated by Section 158A(1) is filed either before the Assessing Officer or the appellate authority, a separate order is required to be passed as contemplated under Section 158A(3) either admitting the claim or rejecting the claim. There is no question of hearing the parties on merits, in appeal, at that stage. If arguments on such a declaration and also arguments on appeal are heard together and ultimately, the declaration is accepted as required by Section 158A(3)(i), the arguments on merits heard by the authority would be an exercise into futility. Even the provisions of Section 158A(6) also show that the legislature contemplated passing a separate order either admitting the claim of the assessee or rejecting his claim. In the present circumstances, there is no order passed as required by Section 158A(3). The order passed is only one and under Section 254(1) on 7.4.2006. The said order is a common order in all appeals as mentioned above. As the issue was found to be covered by the order of ITAT, Delhi Bench, the ITAT Panaji Bench has not gone into the merits of the controversy and the appeals filed by the assessee were dismissed straight away. The impugned order, therefore, cannot be read as an order under Section 158A(3) against which no appeal is provided.11. The ITAT, Panaji Bench has not recorded any separate reasons of its own while upholding the orders passed by the Commissioner (Appeals) or the Assessing Officer. The impugned order, therefore, does not reveal why, as contended by the assessee, the actual costs incurred by it for acquisition of relevant assets could not have been accepted as base for computing depreciation. In view of absence of this material on record, it is apparent that the impugned order cannot be sustained. As the ITAT here chose to rely upon the order of Delhi ITAT, it is clear that in view of the scheme of Section 158A, it would have been proper for it to wait till the question of law is adjudicated by the Honble Delhi High Court in the appeals pending before it. In this situation, we find it appropriate to remand the matter to the ITAT, Panaji Bench, before whom declaration under Section 158A was filed by the appellant with direction to admit the claim of assessee in the said declaration and to proceed further as per section 158A(5) of the Act after the Honble Delhi High Court adjudicates the appeals pending before it. | 1[ds]8. Thus, if in the present circumstances the claim of the assessee/present appellant was accepted by the ITAT, its appeals could have been disposed of in terms of Section 158(4)(a) and he would not have been required to file Appeals before this Court as contemplated by clause (b) of(4). The provisions clearly show that the ITAT is required to pass an order after ascertaining the claim made by the assessee about otherParliament expects the authorities empowered under the said provisions to act in accordance with the spirit of the provisions made and, therefore, only after an order is made either way with due application of mind, the order has been made not appealable or not revisable. As already observed above, the ITAT here has failed to apply its mind as required and therefore, the very purpose of putting Section 158A in the statute book has beenis no question of hearing the parties on merits, in appeal, at that stage. If arguments on such a declaration and also arguments on appeal are heard together and ultimately, the declaration is accepted as required by Section 158A(3)(i), the arguments on merits heard by the authority would be an exercise into futility. Even the provisions of Section 158A(6) also show that the legislature contemplated passing a separate order either admitting the claim of the assessee or rejecting his claim. In the present circumstances, there is no order passed as required by Section 158A(3). The order passed is only one and under Section 254(1) on 7.4.2006. The said order is a common order in all appeals as mentioned above. As the issue was found to be covered by the order of ITAT, Delhi Bench, the ITAT Panaji Bench has not gone into the merits of the controversy and the appeals filed by the assessee were dismissed straight away. The impugned order, therefore, cannot be read as an order under Section 158A(3) against which no appeal is provided.11. The ITAT, Panaji Bench has not recorded any separate reasons of its own while upholding the orders passed by the Commissioner (Appeals) or the Assessing Officer. The impugned order, therefore, does not reveal why, as contended by the assessee, the actual costs incurred by it for acquisition of relevant assets could not have been accepted as base for computing depreciation. In view of absence of this material on record, it is apparent that the impugned order cannot be sustained. As the ITAT here chose to rely upon the order of Delhi ITAT, it is clear that in view of the scheme of Section 158A, it would have been proper for it to wait till the question of law is adjudicated by the Honble Delhi High Court in the appeals pending before it. In this situation, we find it appropriate to remand the matter to the ITAT, Panaji Bench, before whom declaration under Section 158A was filed by the appellant with direction to admit the claim of assessee in the said declaration and to proceed further as per section 158A(5) of the Act after the Honble Delhi High Court adjudicates the appeals pending before it. | 1 | 2,564 | 599 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
by calling report from such Assessing Officer. The said provision permits the appellate authority to grant opportunity of hearing to the Assessing Officer. Sub-section (3) requires the appellate authority to pass an order, in writing, admitting the claim of the assessee or then rejecting his claim if it is not so satisfied. Sub-section (4) states that when the claim is admitted, the appellate authority may dispose of the relevant case without awaiting the final decision on the question of law in the other case and the assessee is not entitled to raise, in relation to that case, such question of law in appeal before any appellate authority or the High Court or the Supreme Court.8. Thus, if in the present circumstances the claim of the assessee/present appellant was accepted by the ITAT, its appeals could have been disposed of in terms of Section 158(4)(a) and he would not have been required to file Appeals before this Court as contemplated by clause (b) of sub-section (4). The provisions clearly show that the ITAT is required to pass an order after ascertaining the claim made by the assessee about other case. In the facts before this Court, the ITAT has overlooked the provisions of sub-section (2)(3)(4) and (5) of Section 158A totally and has considered only the following portion of Section 158A(1):a declaration in the prescribed form and verified in the prescribed manner, that if the [Assessing] Officer or the appellate authority, as the case may be, agrees to apply the in the relevant case the final decision on the question of law in other case, he shall not raise such question of law in the relevant case in appeal before any appellate authority or [in appeal before the High Court under section 260A or in appeal before the Supreme Court under section 261].9. Thus salutary provisions made by the Parliament to put an end to unnecessary litigation and to reduce number of cases required to be followed in letter and spirit, have been defeated in the present matter. The word agrees used in Section 158A(1) does not mean that the Assessing Office or the appellate authority has been given any unbridled authority not to agree. The subsequent provisions clearly require the authority to consider the facts and thereafter to either admit the declaration filed by the assessee or then reject it. The appellate authority is therefore required to judicially evaluate the reasons for not agreeing given by Assessing Officer and pass a reasoned Order keeping in mind the design in adding Section 158A to the Act. It is because of this application of mind envisaged by Section 158A that an order passed by the appellate authority or the assessing officer has not been made amenable to further challenge either by way of an appeal or revision or reference. The Parliament expects the authorities empowered under the said provisions to act in accordance with the spirit of the provisions made and, therefore, only after an order is made either way with due application of mind, the order has been made not appealable or not revisable. As already observed above, the ITAT here has failed to apply its mind as required and therefore, the very purpose of putting Section 158A in the statute book has been frustrated.10. Mr. Rivonkar has argued that the order passed under Section 158A(3) is not open to challenge in the present appeals. The learned Senior Advocate has contended that the impugned order is under Section 254(1) of the Act. The scheme of Section 158A clearly shows that after declaration as contemplated by Section 158A(1) is filed either before the Assessing Officer or the appellate authority, a separate order is required to be passed as contemplated under Section 158A(3) either admitting the claim or rejecting the claim. There is no question of hearing the parties on merits, in appeal, at that stage. If arguments on such a declaration and also arguments on appeal are heard together and ultimately, the declaration is accepted as required by Section 158A(3)(i), the arguments on merits heard by the authority would be an exercise into futility. Even the provisions of Section 158A(6) also show that the legislature contemplated passing a separate order either admitting the claim of the assessee or rejecting his claim. In the present circumstances, there is no order passed as required by Section 158A(3). The order passed is only one and under Section 254(1) on 7.4.2006. The said order is a common order in all appeals as mentioned above. As the issue was found to be covered by the order of ITAT, Delhi Bench, the ITAT Panaji Bench has not gone into the merits of the controversy and the appeals filed by the assessee were dismissed straight away. The impugned order, therefore, cannot be read as an order under Section 158A(3) against which no appeal is provided.11. The ITAT, Panaji Bench has not recorded any separate reasons of its own while upholding the orders passed by the Commissioner (Appeals) or the Assessing Officer. The impugned order, therefore, does not reveal why, as contended by the assessee, the actual costs incurred by it for acquisition of relevant assets could not have been accepted as base for computing depreciation. In view of absence of this material on record, it is apparent that the impugned order cannot be sustained. As the ITAT here chose to rely upon the order of Delhi ITAT, it is clear that in view of the scheme of Section 158A, it would have been proper for it to wait till the question of law is adjudicated by the Honble Delhi High Court in the appeals pending before it. In this situation, we find it appropriate to remand the matter to the ITAT, Panaji Bench, before whom declaration under Section 158A was filed by the appellant with direction to admit the claim of assessee in the said declaration and to proceed further as per section 158A(5) of the Act after the Honble Delhi High Court adjudicates the appeals pending before it.
### Response:
1
### Explanation:
8. Thus, if in the present circumstances the claim of the assessee/present appellant was accepted by the ITAT, its appeals could have been disposed of in terms of Section 158(4)(a) and he would not have been required to file Appeals before this Court as contemplated by clause (b) of(4). The provisions clearly show that the ITAT is required to pass an order after ascertaining the claim made by the assessee about otherParliament expects the authorities empowered under the said provisions to act in accordance with the spirit of the provisions made and, therefore, only after an order is made either way with due application of mind, the order has been made not appealable or not revisable. As already observed above, the ITAT here has failed to apply its mind as required and therefore, the very purpose of putting Section 158A in the statute book has beenis no question of hearing the parties on merits, in appeal, at that stage. If arguments on such a declaration and also arguments on appeal are heard together and ultimately, the declaration is accepted as required by Section 158A(3)(i), the arguments on merits heard by the authority would be an exercise into futility. Even the provisions of Section 158A(6) also show that the legislature contemplated passing a separate order either admitting the claim of the assessee or rejecting his claim. In the present circumstances, there is no order passed as required by Section 158A(3). The order passed is only one and under Section 254(1) on 7.4.2006. The said order is a common order in all appeals as mentioned above. As the issue was found to be covered by the order of ITAT, Delhi Bench, the ITAT Panaji Bench has not gone into the merits of the controversy and the appeals filed by the assessee were dismissed straight away. The impugned order, therefore, cannot be read as an order under Section 158A(3) against which no appeal is provided.11. The ITAT, Panaji Bench has not recorded any separate reasons of its own while upholding the orders passed by the Commissioner (Appeals) or the Assessing Officer. The impugned order, therefore, does not reveal why, as contended by the assessee, the actual costs incurred by it for acquisition of relevant assets could not have been accepted as base for computing depreciation. In view of absence of this material on record, it is apparent that the impugned order cannot be sustained. As the ITAT here chose to rely upon the order of Delhi ITAT, it is clear that in view of the scheme of Section 158A, it would have been proper for it to wait till the question of law is adjudicated by the Honble Delhi High Court in the appeals pending before it. In this situation, we find it appropriate to remand the matter to the ITAT, Panaji Bench, before whom declaration under Section 158A was filed by the appellant with direction to admit the claim of assessee in the said declaration and to proceed further as per section 158A(5) of the Act after the Honble Delhi High Court adjudicates the appeals pending before it.
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Jitmal Bhuramal Vs. Commissioner of Income Tax, Bihar and Orissa | section 66(2) of the Income-tax Act. The assessee is the appellant. Messrs. Jitmal Bhuramal (assessee) is a Hindu undivided family consisting of the four sons and grandsons of Bhuramal. We are concerned with the four brothers, whose names are Hiralal, Gulzarilal, Kunjlal and Madanlal, and one Gobhardanlal, son of Gulzarilal. The family does business in grains, kirana etc. at Madhupur, under two names, Jitmal Bhuramal and Bhuramal Hiralal. The family through its karta was also a partner in another firm called Hiralal Gulzarilal, in which the karta had a 12 annas share, and one Rameshwar Lal, a stranger to the family, had the remaining 4 annas share We are concerned with the assessment year, 1953-54. Hiralal, the karta, entered into two agreements with the other members of the family, by which the junior members agreed to serve the Hindu undivided family on monthly payments of Rs. 200 to Gulzarilal, Rs. 150 each to Kunjlal and Madanlal, and Rs. 100 to Gobhardanlal. By the first agreement, Gulzarilal and Madanlal were to look after the interests of the Hindu undivided family in the partnership, and the two others were to look after the business of the Hindu undivided family2. In the year of account relative to the assessment year, 1953-54, Rs. 6, 600 were paid as remuneration to the four junior members. Rs. 3, 850 were paid to Gulzarilal and Madanlal for their services to the partnership and Rs. 2, 750 to Kunjlal and Gobhardanlal for their services to the Hindu undivided family. The Income-tax Officer, Santhal Parganas, by his assessment order dated December 31, 1953, only allowed as expenses a payment of Rs. 50 per month to Gobhardanlal. The rest of the claim made under section 10(2)(xv) of the Income-tax Act amounting to Rs. 6, 000 was disallowed. The order of the Income-tax Officer was confirmed by the Appellate Assistant Commissioner ; but the Income-tax Appellate Tribunal on appeal allowed the deduction of the full remuneration paid to Gobhardanlal and Kunjlal. The Tribunal, however, did not allow the deduction of the amounts paid to Gulzarilal A and Madanlal, which, as already stated, totalled Rs. 3, 850. The assessee maae an application under section 66(1) of the Income-tax Act ; but the Tribunal rejected it. The assessee then applied to the High Court under section 66(2), and obtained a reference on the following question" Whether in the facts and circumstances of the case, the assessee, namely, the Hindu undivided family, who is a partner in the partnership business of Hiralal Gulzarilal, is entitled to a deduction of Rs. 3, 850 from the assessment of income-tax for the relevant year under section 10(2)(xv) of the Income-tax Act ? "3. This question was answered by the High Court against the assessee. The High Court unfortunately erred in apprehending the finding of fact given by the Tribunal, and much is made of this in the appeal before us. The High Court in the course of its judgment observed" We, therefore, proceed upon the footing that the finding of fact of the income-tax authorities in this case is that neither Gulzarilal nor Madanlal has rendered any service to the partnership business nor contributed to the earning of profits to the Hindu undivided family from the share of the partnership business ? "What the Tribunal held was mentioned in the case stated to the High Court. There, the Tribunal observed" The Tribunal by its order dated September 28, 1955 which is annexure B hereto and forms part of the case, held that these payments of salaries to the persons who worked for the Hindu undivided family were admissible but that the payment to Gulzarilal and Madanlal, amounting to Rs. 3, 850, was not, as the members did not render any services to the Hindu undivided familys business but to the firm, which was a separate entity and for services for which the liability was on the firm. "4. In our opinion, this finding of the Tribanal, which has been relied upon by the assessee, makes its case even more difficult. A Hindu undivided family is allowed to deduct salaries paid to members of the family, if the payment is made as a matter of commercial or business expediency ; but the service must be to the family. It was held by this court in Dulichand Laxminarayan v. Commissioner of Income-tax, that " partnership " being the relation between persons, who have agreed to share the profits of a business carried on by all or any of them acting for all, and " persons " who enter into the partnership being called individually " partners " or collectively " a firm " the word " person " contemplates only natural or artificial, i.e., legal persons, and neither a firm nor a Hindu undivided family can be that person. It was again recently emphasised in the case of Charandas Haridas v. Commissioner of Income-tax, that where a Hindu undivided family becomes a partner through its karta, the coparcenary has no place in the partnership but only the karta is everything, and in Commissioner of Income-tax v. Nandlal Gandalal, it was pointed out that both under the Hindu law and under the law of partnership, the Hindu undivided family as such can exercise no control and management over the business of a partnership, of which the coparcenary is a member through the kartaAll these cases show that if the junior members of the coparcenary were serving the partnership, they were serving an entity, which was separate and distinct from the Hindu undivided family. If the coparcenary had no place in the partnership, any service to the partnership cannot be described as service to the Hindu undivided family, sufficient to attract the application of section 10(2)(xv) of the Income-tax Act, because it cannot be said to be wholly and exclusively for the Hindu undivided family5. In our opinion, the answer to the question was rightly stated by the High Court in the negative, though for, reasons which we have indicated here | 0[ds]4. In our opinion, this finding of the Tribanal, which has been relied upon by the assessee, makes its case even more difficult. A Hindu undivided family is allowed to deduct salaries paid to members of the family, if the payment is made as a matter of commercial or business expediency ; but the service must be to the family. It was held by this court in Dulichand Laxminarayan v. Commissioner ofthat " partnership " being the relation between persons, who have agreed to share the profits of a business carried on by all or any of them acting for all, and " persons " who enter into the partnership being called individually " partners " or collectively " a firm " the word " person " contemplates only natural or artificial, i.e., legal persons, and neither a firm nor a Hindu undivided family can be that person. It was again recently emphasised in the case of Charandas Haridas v. Commissioner ofthat where a Hindu undivided family becomes a partner through its karta, the coparcenary has no place in the partnership but only the karta is everything, and in Commissioner ofv. Nandlal Gandalal, it was pointed out that both under the Hindu law and under the law of partnership, the Hindu undivided family as such can exercise no control and management over the business of a partnership, of which the coparcenary is a member through the kartaAll these cases show that if the junior members of the coparcenary were serving the partnership, they were serving an entity, which was separate and distinct from the Hindu undivided family. If the coparcenary had no place in the partnership, any service to the partnership cannot be described as service to the Hindu undivided family, sufficient to attract the application of section 10(2)(xv) of theAct, because it cannot be said to be wholly and exclusively for the Hindu undivided family5. In our opinion, the answer to the question was rightly stated by the High Court in the negative, though for, reasons which we have indicated here | 0 | 1,176 | 383 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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section 66(2) of the Income-tax Act. The assessee is the appellant. Messrs. Jitmal Bhuramal (assessee) is a Hindu undivided family consisting of the four sons and grandsons of Bhuramal. We are concerned with the four brothers, whose names are Hiralal, Gulzarilal, Kunjlal and Madanlal, and one Gobhardanlal, son of Gulzarilal. The family does business in grains, kirana etc. at Madhupur, under two names, Jitmal Bhuramal and Bhuramal Hiralal. The family through its karta was also a partner in another firm called Hiralal Gulzarilal, in which the karta had a 12 annas share, and one Rameshwar Lal, a stranger to the family, had the remaining 4 annas share We are concerned with the assessment year, 1953-54. Hiralal, the karta, entered into two agreements with the other members of the family, by which the junior members agreed to serve the Hindu undivided family on monthly payments of Rs. 200 to Gulzarilal, Rs. 150 each to Kunjlal and Madanlal, and Rs. 100 to Gobhardanlal. By the first agreement, Gulzarilal and Madanlal were to look after the interests of the Hindu undivided family in the partnership, and the two others were to look after the business of the Hindu undivided family2. In the year of account relative to the assessment year, 1953-54, Rs. 6, 600 were paid as remuneration to the four junior members. Rs. 3, 850 were paid to Gulzarilal and Madanlal for their services to the partnership and Rs. 2, 750 to Kunjlal and Gobhardanlal for their services to the Hindu undivided family. The Income-tax Officer, Santhal Parganas, by his assessment order dated December 31, 1953, only allowed as expenses a payment of Rs. 50 per month to Gobhardanlal. The rest of the claim made under section 10(2)(xv) of the Income-tax Act amounting to Rs. 6, 000 was disallowed. The order of the Income-tax Officer was confirmed by the Appellate Assistant Commissioner ; but the Income-tax Appellate Tribunal on appeal allowed the deduction of the full remuneration paid to Gobhardanlal and Kunjlal. The Tribunal, however, did not allow the deduction of the amounts paid to Gulzarilal A and Madanlal, which, as already stated, totalled Rs. 3, 850. The assessee maae an application under section 66(1) of the Income-tax Act ; but the Tribunal rejected it. The assessee then applied to the High Court under section 66(2), and obtained a reference on the following question" Whether in the facts and circumstances of the case, the assessee, namely, the Hindu undivided family, who is a partner in the partnership business of Hiralal Gulzarilal, is entitled to a deduction of Rs. 3, 850 from the assessment of income-tax for the relevant year under section 10(2)(xv) of the Income-tax Act ? "3. This question was answered by the High Court against the assessee. The High Court unfortunately erred in apprehending the finding of fact given by the Tribunal, and much is made of this in the appeal before us. The High Court in the course of its judgment observed" We, therefore, proceed upon the footing that the finding of fact of the income-tax authorities in this case is that neither Gulzarilal nor Madanlal has rendered any service to the partnership business nor contributed to the earning of profits to the Hindu undivided family from the share of the partnership business ? "What the Tribunal held was mentioned in the case stated to the High Court. There, the Tribunal observed" The Tribunal by its order dated September 28, 1955 which is annexure B hereto and forms part of the case, held that these payments of salaries to the persons who worked for the Hindu undivided family were admissible but that the payment to Gulzarilal and Madanlal, amounting to Rs. 3, 850, was not, as the members did not render any services to the Hindu undivided familys business but to the firm, which was a separate entity and for services for which the liability was on the firm. "4. In our opinion, this finding of the Tribanal, which has been relied upon by the assessee, makes its case even more difficult. A Hindu undivided family is allowed to deduct salaries paid to members of the family, if the payment is made as a matter of commercial or business expediency ; but the service must be to the family. It was held by this court in Dulichand Laxminarayan v. Commissioner of Income-tax, that " partnership " being the relation between persons, who have agreed to share the profits of a business carried on by all or any of them acting for all, and " persons " who enter into the partnership being called individually " partners " or collectively " a firm " the word " person " contemplates only natural or artificial, i.e., legal persons, and neither a firm nor a Hindu undivided family can be that person. It was again recently emphasised in the case of Charandas Haridas v. Commissioner of Income-tax, that where a Hindu undivided family becomes a partner through its karta, the coparcenary has no place in the partnership but only the karta is everything, and in Commissioner of Income-tax v. Nandlal Gandalal, it was pointed out that both under the Hindu law and under the law of partnership, the Hindu undivided family as such can exercise no control and management over the business of a partnership, of which the coparcenary is a member through the kartaAll these cases show that if the junior members of the coparcenary were serving the partnership, they were serving an entity, which was separate and distinct from the Hindu undivided family. If the coparcenary had no place in the partnership, any service to the partnership cannot be described as service to the Hindu undivided family, sufficient to attract the application of section 10(2)(xv) of the Income-tax Act, because it cannot be said to be wholly and exclusively for the Hindu undivided family5. In our opinion, the answer to the question was rightly stated by the High Court in the negative, though for, reasons which we have indicated here
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4. In our opinion, this finding of the Tribanal, which has been relied upon by the assessee, makes its case even more difficult. A Hindu undivided family is allowed to deduct salaries paid to members of the family, if the payment is made as a matter of commercial or business expediency ; but the service must be to the family. It was held by this court in Dulichand Laxminarayan v. Commissioner ofthat " partnership " being the relation between persons, who have agreed to share the profits of a business carried on by all or any of them acting for all, and " persons " who enter into the partnership being called individually " partners " or collectively " a firm " the word " person " contemplates only natural or artificial, i.e., legal persons, and neither a firm nor a Hindu undivided family can be that person. It was again recently emphasised in the case of Charandas Haridas v. Commissioner ofthat where a Hindu undivided family becomes a partner through its karta, the coparcenary has no place in the partnership but only the karta is everything, and in Commissioner ofv. Nandlal Gandalal, it was pointed out that both under the Hindu law and under the law of partnership, the Hindu undivided family as such can exercise no control and management over the business of a partnership, of which the coparcenary is a member through the kartaAll these cases show that if the junior members of the coparcenary were serving the partnership, they were serving an entity, which was separate and distinct from the Hindu undivided family. If the coparcenary had no place in the partnership, any service to the partnership cannot be described as service to the Hindu undivided family, sufficient to attract the application of section 10(2)(xv) of theAct, because it cannot be said to be wholly and exclusively for the Hindu undivided family5. In our opinion, the answer to the question was rightly stated by the High Court in the negative, though for, reasons which we have indicated here
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ARUN KUMAR Vs. ANITA MISHRA AND ORS | First Class Narsinghgarh, dated 29.07.2011, refusing to dismiss the Complaint Case No. 547/2009 filed by the Appellant complainant against the accused Respondent Under Section 138 of the Negotiable Instruments Act and the order passed by the Additional District Judge dated 24.08.2012, dismissing the revisional application of the accused Respondent against the said order dated 29.7.2011 of the Learned Judicial Magistrate, being Criminal Revision No. 195/2011. 3. The brief facts are that a complaint Under Section 138 of the Negotiable Instruments Act was filed by the Appellant complainant against the accused Respondent on 02.07.2007. 4. The Judicial Magistrate, First Class, Narsinghgarh sentenced the accused Respondent to six months imprisonment and further imposed a fine of Rs. 3,30,000/- on the accused Respondent. Being aggrieved, the accused Respondent filed a Criminal Appeal No. 231/2007. During the pendency of the criminal appeal, the matter was settled in a compromise before the Lok Adalat on 25.07.2008. 5. In terms of the compromise, the accused Respondent was required to make a payment of Rs. 3,51,750/- which was paid on the same day through a post dated cheque drawn in favour of the Appellant complainant. 6. The said cheque drawn by the accused Respondent in favour of the Appellant complainant as per the compromise arrived at between the Appellant complainant and the accused Respondent before the Lok Adalat, also got dishonoured, whereupon the Appellant complainant filed criminal complaint No. 547/2009 Under Section 138 of the Negotiable Instruments Act, referred to above, against the accused Respondent. 7. The accused Respondent filed an application before the Judicial Magistrate, First Class Narsinghgarh for dismissal of the complaint. The said application was dismissed. A Revisional application against the order of dismissal of the said application, passed by the Judicial Magistrate was also dismissed by the Sessions Court. 8. The accused Respondent, however, approached the High Court Under Section 482 of the Code of Criminal Procedure for quashing the proceedings. The application Under Section 482, as observed above, has been allowed by the High Court by the order impugned. 9. The High Court observed that it was an undisputed fact that in respect of earlier cheque issued by the Respondent accused, a criminal case had been preferred Under Section 138 of the Negotiable Instruments Act and the Respondent accused had also been convicted. A fine was also imposed on the Respondent accused. 10. The High Court proceeded to quash the complaint observing that the question of entertaining the second complaint did not arise, when the cheque was not issued in discharge of any debt or liability of the company. It was issued on account of a settlement. 11. With the greatest of respect, the High Court has misconstrued the judgment of this Court in Lalit Kumar Sharma and Anr. vs. State of Uttar Pradesh and Anr. reported in 2008 : 2008 (5) SCC 638 : (2008 AIR SCW 3503). 12. In Lalit Kumar Sharma (supra), the Supreme Court found that ingredients of Section 138 of the Act were : i) a legally enforceable debt; ii) that the cheque was drawn for discharge in whole or in part of any debt or other liability, which presupposes a legally enforceable debt; and iii) the cheque so issued had been returned due to insufficiency of funds. 13. Lalit Kumars case (2008 AIR SCW 3503) is distinguishable on facts, in that the cheque had not been issued in discharge of any debt or liability of the Company of which the accused were said to be the Directors. The cheque was found to have been issued for the purpose of arriving at a settlement. 14. In the instant case, the Respondent clearly had a liability. As observed above, there was an earlier adjudication which led to the conviction of the Respondent accused. I Thus there was adjudication of liability of the Respondent accused. While the appeal was pending, the matter was settled in the Lok Adalat in acknowledgment of liability of the accused Respondent to the Appellant) complainant. 15. The cheque issued pursuant to the order of the Lok Adalat, was also dishonoured. This clearly gave rise to afresh cause of action Under Section 138 of the Negotiable Instruments Act. 16. In K.N. Govindan Kutty Menon vs. C.D. Shaji reported in (2012) 2 SCC 51 : (AIR 2012 SC 719 , Para 8) cited by the Appellant complainant, this Court held: 11. In the case on hand, the question posed for consideration before the High Court was that when a criminal case referred to by the Magistrate to a Lok Adalat is settled by the parties and an award is passed recording the settlement, can it be considered as a decree of a civil court and thus executable by that court? After highlighting the relevant provisions, namely, Section 21 of the Act, it was contended before the High Court that every award passed by the Lok Adalat has to be deemed to be a decree of a civil court and as such, executable by that court. 23. In the case on hand, the courts below erred in holding that only if the matter was one which was referred by a civil court it could be a decree and if the matter was referred by a criminal court it will only be an order of the criminal court and not a decree Under Section 21 of the Act. The Act does not make out any such distinction between the reference made by a civil court and a criminal court. There is no restriction on the power of Lok Adalat to pass an award based on the compromise arrived at between the parties. 17. Every award of the Lok Adalat is, as held in K.N. Govindan Kutty Menon vs. C.D. Shaji (AIR 2012 SC 719 ) (supra), deemed to be decree of a civil court and executable as a legally enforceable debt. The dishonour of the cheque gave rise to a cause of action Under Section 138 of the Negotiable Instruments Act. The impugned judgment and order is misconceived. | 1[ds]11. With the greatest of respect, the High Court has misconstrued the judgment of this Court in Lalit Kumar Sharma and Anr. vs. State of Uttar Pradesh and Anr. reported in 2008 : 2008 (5) SCC 638 : (2008 AIR SCW 3503).12. In Lalit Kumar Sharma (supra), the Supreme Court found that ingredients of Section 138 of the Act were : i) a legally enforceable debt; ii) that the cheque was drawn for discharge in whole or in part of any debt or other liability, which presupposes a legally enforceable debt; and iii) the cheque so issued had been returned due to insufficiency of funds.13. Lalit Kumars case (2008 AIR SCW 3503) is distinguishable on facts, in that the cheque had not been issued in discharge of any debt or liability of the Company of which the accused were said to be the Directors. The cheque was found to have been issued for the purpose of arriving at a settlement.14. In the instant case, the Respondent clearly had a liability. As observed above, there was an earlier adjudication which led to the conviction of the Respondent accused. I Thus there was adjudication of liability of the Respondent accused. While the appeal was pending, the matter was settled in the Lok Adalat in acknowledgment of liability of the accused Respondent to the Appellant) complainant.15. The cheque issued pursuant to the order of the Lok Adalat, was also dishonoured. This clearly gave rise to afresh cause of action Under Section 138 of the Negotiable Instruments Act.16. In K.N. Govindan Kutty Menon vs. C.D. Shaji reported in (2012) 2 SCC 51 : (AIR 2012 SC 719 , Para 8) cited by the Appellant complainant, this Court held:11. In the case on hand, the question posed for consideration before the High Court was that when a criminal case referred to by the Magistrate to a Lok Adalat is settled by the parties and an award is passed recording the settlement, can it be considered as a decree of a civil court and thus executable by that court? After highlighting the relevant provisions, namely, Section 21 of the Act, it was contended before the High Court that every award passed by the Lok Adalat has to be deemed to be a decree of a civil court and as such, executable by that court.23. In the case on hand, the courts below erred in holding that only if the matter was one which was referred by a civil court it could be a decree and if the matter was referred by a criminal court it will only be an order of the criminal court and not a decree Under Section 21 of the Act. The Act does not make out any such distinction between the reference made by a civil court and a criminal court. There is no restriction on the power of Lok Adalat to pass an award based on the compromise arrived at between the parties.17. Every award of the Lok Adalat is, as held in K.N. Govindan Kutty Menon vs. C.D. Shaji (AIR 2012 SC 719 ) (supra), deemed to be decree of a civil court and executable as a legally enforceable debt. The dishonour of the cheque gave rise to a cause of action Under Section 138 of the Negotiable Instruments Act. The impugned judgment and order is misconceived. | 1 | 1,184 | 627 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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First Class Narsinghgarh, dated 29.07.2011, refusing to dismiss the Complaint Case No. 547/2009 filed by the Appellant complainant against the accused Respondent Under Section 138 of the Negotiable Instruments Act and the order passed by the Additional District Judge dated 24.08.2012, dismissing the revisional application of the accused Respondent against the said order dated 29.7.2011 of the Learned Judicial Magistrate, being Criminal Revision No. 195/2011. 3. The brief facts are that a complaint Under Section 138 of the Negotiable Instruments Act was filed by the Appellant complainant against the accused Respondent on 02.07.2007. 4. The Judicial Magistrate, First Class, Narsinghgarh sentenced the accused Respondent to six months imprisonment and further imposed a fine of Rs. 3,30,000/- on the accused Respondent. Being aggrieved, the accused Respondent filed a Criminal Appeal No. 231/2007. During the pendency of the criminal appeal, the matter was settled in a compromise before the Lok Adalat on 25.07.2008. 5. In terms of the compromise, the accused Respondent was required to make a payment of Rs. 3,51,750/- which was paid on the same day through a post dated cheque drawn in favour of the Appellant complainant. 6. The said cheque drawn by the accused Respondent in favour of the Appellant complainant as per the compromise arrived at between the Appellant complainant and the accused Respondent before the Lok Adalat, also got dishonoured, whereupon the Appellant complainant filed criminal complaint No. 547/2009 Under Section 138 of the Negotiable Instruments Act, referred to above, against the accused Respondent. 7. The accused Respondent filed an application before the Judicial Magistrate, First Class Narsinghgarh for dismissal of the complaint. The said application was dismissed. A Revisional application against the order of dismissal of the said application, passed by the Judicial Magistrate was also dismissed by the Sessions Court. 8. The accused Respondent, however, approached the High Court Under Section 482 of the Code of Criminal Procedure for quashing the proceedings. The application Under Section 482, as observed above, has been allowed by the High Court by the order impugned. 9. The High Court observed that it was an undisputed fact that in respect of earlier cheque issued by the Respondent accused, a criminal case had been preferred Under Section 138 of the Negotiable Instruments Act and the Respondent accused had also been convicted. A fine was also imposed on the Respondent accused. 10. The High Court proceeded to quash the complaint observing that the question of entertaining the second complaint did not arise, when the cheque was not issued in discharge of any debt or liability of the company. It was issued on account of a settlement. 11. With the greatest of respect, the High Court has misconstrued the judgment of this Court in Lalit Kumar Sharma and Anr. vs. State of Uttar Pradesh and Anr. reported in 2008 : 2008 (5) SCC 638 : (2008 AIR SCW 3503). 12. In Lalit Kumar Sharma (supra), the Supreme Court found that ingredients of Section 138 of the Act were : i) a legally enforceable debt; ii) that the cheque was drawn for discharge in whole or in part of any debt or other liability, which presupposes a legally enforceable debt; and iii) the cheque so issued had been returned due to insufficiency of funds. 13. Lalit Kumars case (2008 AIR SCW 3503) is distinguishable on facts, in that the cheque had not been issued in discharge of any debt or liability of the Company of which the accused were said to be the Directors. The cheque was found to have been issued for the purpose of arriving at a settlement. 14. In the instant case, the Respondent clearly had a liability. As observed above, there was an earlier adjudication which led to the conviction of the Respondent accused. I Thus there was adjudication of liability of the Respondent accused. While the appeal was pending, the matter was settled in the Lok Adalat in acknowledgment of liability of the accused Respondent to the Appellant) complainant. 15. The cheque issued pursuant to the order of the Lok Adalat, was also dishonoured. This clearly gave rise to afresh cause of action Under Section 138 of the Negotiable Instruments Act. 16. In K.N. Govindan Kutty Menon vs. C.D. Shaji reported in (2012) 2 SCC 51 : (AIR 2012 SC 719 , Para 8) cited by the Appellant complainant, this Court held: 11. In the case on hand, the question posed for consideration before the High Court was that when a criminal case referred to by the Magistrate to a Lok Adalat is settled by the parties and an award is passed recording the settlement, can it be considered as a decree of a civil court and thus executable by that court? After highlighting the relevant provisions, namely, Section 21 of the Act, it was contended before the High Court that every award passed by the Lok Adalat has to be deemed to be a decree of a civil court and as such, executable by that court. 23. In the case on hand, the courts below erred in holding that only if the matter was one which was referred by a civil court it could be a decree and if the matter was referred by a criminal court it will only be an order of the criminal court and not a decree Under Section 21 of the Act. The Act does not make out any such distinction between the reference made by a civil court and a criminal court. There is no restriction on the power of Lok Adalat to pass an award based on the compromise arrived at between the parties. 17. Every award of the Lok Adalat is, as held in K.N. Govindan Kutty Menon vs. C.D. Shaji (AIR 2012 SC 719 ) (supra), deemed to be decree of a civil court and executable as a legally enforceable debt. The dishonour of the cheque gave rise to a cause of action Under Section 138 of the Negotiable Instruments Act. The impugned judgment and order is misconceived.
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11. With the greatest of respect, the High Court has misconstrued the judgment of this Court in Lalit Kumar Sharma and Anr. vs. State of Uttar Pradesh and Anr. reported in 2008 : 2008 (5) SCC 638 : (2008 AIR SCW 3503).12. In Lalit Kumar Sharma (supra), the Supreme Court found that ingredients of Section 138 of the Act were : i) a legally enforceable debt; ii) that the cheque was drawn for discharge in whole or in part of any debt or other liability, which presupposes a legally enforceable debt; and iii) the cheque so issued had been returned due to insufficiency of funds.13. Lalit Kumars case (2008 AIR SCW 3503) is distinguishable on facts, in that the cheque had not been issued in discharge of any debt or liability of the Company of which the accused were said to be the Directors. The cheque was found to have been issued for the purpose of arriving at a settlement.14. In the instant case, the Respondent clearly had a liability. As observed above, there was an earlier adjudication which led to the conviction of the Respondent accused. I Thus there was adjudication of liability of the Respondent accused. While the appeal was pending, the matter was settled in the Lok Adalat in acknowledgment of liability of the accused Respondent to the Appellant) complainant.15. The cheque issued pursuant to the order of the Lok Adalat, was also dishonoured. This clearly gave rise to afresh cause of action Under Section 138 of the Negotiable Instruments Act.16. In K.N. Govindan Kutty Menon vs. C.D. Shaji reported in (2012) 2 SCC 51 : (AIR 2012 SC 719 , Para 8) cited by the Appellant complainant, this Court held:11. In the case on hand, the question posed for consideration before the High Court was that when a criminal case referred to by the Magistrate to a Lok Adalat is settled by the parties and an award is passed recording the settlement, can it be considered as a decree of a civil court and thus executable by that court? After highlighting the relevant provisions, namely, Section 21 of the Act, it was contended before the High Court that every award passed by the Lok Adalat has to be deemed to be a decree of a civil court and as such, executable by that court.23. In the case on hand, the courts below erred in holding that only if the matter was one which was referred by a civil court it could be a decree and if the matter was referred by a criminal court it will only be an order of the criminal court and not a decree Under Section 21 of the Act. The Act does not make out any such distinction between the reference made by a civil court and a criminal court. There is no restriction on the power of Lok Adalat to pass an award based on the compromise arrived at between the parties.17. Every award of the Lok Adalat is, as held in K.N. Govindan Kutty Menon vs. C.D. Shaji (AIR 2012 SC 719 ) (supra), deemed to be decree of a civil court and executable as a legally enforceable debt. The dishonour of the cheque gave rise to a cause of action Under Section 138 of the Negotiable Instruments Act. The impugned judgment and order is misconceived.
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KUMAR Vs. STATE REP. BY INSPECTOR OF POLICE | their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.” 29. In the case on hand, admittedly, the accused—appellant was also injured in the same occurrence and he too was admitted in the hospital. But, prosecution did not produce his medical record, nor the Doctor was examined on the nature of injuries sustained by the accused. The trial Court, instead of seeking proper explanation from the prosecution for the injuries sustained by the accused, appears to have simply believed what prosecution witnesses deposed in one sentence that the accused had sustained simple injuries only.30. From the evidence of I.O.—PW24 it is apparent that in the scuffle PW2 (Arumugham) received “simple” injuries and he had taken the statement of Dr. Lavanya (PW17) who treated PW2. He had also examined Dr. Illayaraj (PW18) who conducted postmortem on the body of the deceased. But, in the case of accused—appellant, PW24—I.O. admits that he was aware of the fact that the accused-appellant was admitted as in-patient and the accused-appellant had sustained injuries. He further states that neither did he arrest the accused nor he examined the Doctor in regard to the injuries of accused. In the circumstances in which the deceased, accused and also PW-2 (Arumugham) got injuries, it is obligatory on the part of I.O. to examine the Doctor and seek information about the injuries sustained by the accused and the same should have been made part of the record. A duty is cast on the prosecution to furnish proper explanation to the Court how the person who has been accused of assaulting the deceased, received injuries on his person in the same occurrence. We may note that the injuries alleged to have been caused are not properly explained. An alternative story is set up wherein the injuries are attributed to mob justice, such allegations without substantive evidence cannot be accepted.31. Coming to the other aspect of the case, motive of the accused to commit the crime is ascribed to the previous quarrel occasioned between the accused and the deceased during a drama at a village festival. Generally, in case prosecution desires to place motive of the accused as a circumstance, like any other incriminating circumstance, it should also be fully established. We are alive to the fact that if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. But in the case on hand, as we have already discussed in the above paragraphs, the evidence of direct witnesses is not satisfactory and on the other hand, it is demonstrated that the deceased hit the accused on his head with the wooden log besides the testimony from the eye witnesses that there was scuffle. In such a factual situation, certainly motive may act as a double-edged sword.32. In the light of the settled law thus by this Court and also from what is clear from the evidence, there is absence of extreme cruelty, even if it assumed that accused hit the deceased with the log. Had there been a strong motive to do away with the life of deceased, generally there would have been more fatal injuries caused on the deceased not by a log but by utilizing more dangerous weapons. These circumstances would tell us that there is no reason to believe that motive was entertained by the accused in the back drop of quarrel that took place during drama at the village festival, prior to the date of occurrence. In as much as the prosecution laid the foundation for the commission of crime by the accused in the said quarrel as an element of motive, in the absence of positive proof of such motive, prosecution has to face the peril of failure in establishing that foundation.33. Now coming to other charge under Section 324 of IPC, for causing injuries to Arumugham @ Ayyar [PW-2]. In light of the deficiencies noted above, it can be easily said that even the charge under Section 324 of IPC is not established. The aforesaid conclusion is clearly buttressed by the fact that the injured witness himself has attributed the injury on him to the deceased, instead of the accused. In such a situation conviction of the accused on the charge of Section 324 cannot be sustained under law.34. Taking stock of the circumstances and depositions of prosecution witnesses in this case, it would be difficult to hold that prosecution has laid the case on real circumstances and proved its case beyond reasonable doubt. We are surprised at the way in which Courts below have perceived the facts and circumstances of this case. We are not in agreement with the views drawn by the trial Court as well as the High Court while dealing with the matter.35. Normally this Court does not interfere with the concurrent findings recorded by the Courts below, but in this case we find certain exceptional circumstances as narrated above, considering these aspects we feel that this is a fit case for our interference. In our opinion, instead of dealing with the intrinsic merits of the evidence of witnesses, both the Courts below have acted perversely. Once we arrive at the conclusion that we cannot lend credence to the genuineness of the F.I.R. and the prosecution case, there is no need of further enquiry as the assertion made by the prosecution are not proved beyond reasonable doubt. In the peculiar facts and circumstances of the case, definitely the benefit of doubt goes to the accused—appellant. Viewed in that angle, the judgments of the Courts below awarding conviction and sentence to the accused—appellant requires to be set aside. | 1[ds]20. Contrary to what Rajendran—Complainantdeposed, a combined reading of the evidences adduced by PWs 2, 3, 5, 15, 19 and 20 would make it abundantly clear that both the accused and the deceased have participated in the fight with wooden logs, accused has got head injury at the hands of deceased, PW2 (Arumugham) himself also received injury at the hands of accused while he was trying to protect PW1 (Rajendran) from the assault of the accused, police reached the place of occurrence within ten minutes of the occurrence, that is well before the arrival of ambulance and Rajendran—PW1 (complainant), Arumugham @ Ayyar (PW2), Subramanian (PW3) and other witnesses described the incident to the police who then examined the persons present there, rough sketch was prepared and their signatures were also obtained.From the account of eye witness, we may observe that there are at least three different versions which substantially weakens thecase.24. On the point of suppression of genesis of the crime,(head constable) categorically states that he was present before the Ambulance had reached the place. Even though he was extensivelyhe has not budged from his position that there was no recording of any statement before the Ambulance recorded. On the contrarycategorically remarks that a statement was recorded bybefore the ambulance arrived. Although the High Court has discredited the evidence ofas the part which provides the aforesaid details was on recalling after few days, therefore, in light of possibility of being won over, the credibility of the statement made byneeds to be viewed with this background fact. However, we fail to understand internal logic of such assumption, when the prosecution has not declared the witness as hostile and more so, when his narrative is corroborated by other witnesses. Therefore,evidence needs to be taken into fold.25. It is matter of record that the allegedwas arrested in a hurried manner after the day of the incident from the hospital. It is also stated that the police authorities in an unusual manner got the appellant discharged from the hospital and kept him illegally confined for a day. Moreover,has categorically stated the following on the action of the policeThe police enquired me about the incident and I narrated the same. The police and theof Police on suspicion taken myself,(Subramanian) to Keeranur Police Station. I was detained in Keeranur police station during the night and on the next day morning, I was sent to Keeranur Government Hospital for treatment. Before I was examined in chief, they warned me that if I have not deposed as instructed them, they will foist a case against me and only for that reason, I have stated like that. (emphasis supplied)The action of investigating authority in pursuing the case in the manner which they have done must be rebuked. The High Court on this aspect, correctly notices that the police authorities have botched up the arrest for reasons best known to them. Although we are aware of the ratio laid down in Parbhu v. Emperor, AIR 1944 PC 73 , wherein the court had ruled that irregularity and illegality of arrest would not affect the culpability of the offence if the same is proved by cogent evidence, yet in this case at hand, such irregularity should be shown deference as the investigating authorities are responsible for suppression of facts.26. The criminal justice must be above reproach. It is irrelevant whether the falsity lie in the statement of witnesses or the guilt of the accused. The investigative authority has a responsibility to investigate in a fair manner and elicit truth. At the cost of repetition, I must remind the concerned authorities to take up the investigation in a neutral manner, without having regards to the ultimate result. In this case at hand, we cannot close our eyes to what has happened; regardless of guilt or the asserted persuasiveness of the evidence, the aspect wherein the police has actively connived to suppress the facts, cannot be ignored or overlooked.27.Another point put forth by the learned counsel on behalf of the accused—appellant is that the prosecution has not explained the injuries suffered by the accused and hence prosecution case should not be believed.At the outset, it would be relevant to note the settled principles of law on this aspect. Generally failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true [See : Mohar Rai and Bharath Rai v. The State of Bihar, 1968 CriLJ 1479 ].In the case on hand, admittedly, the accused—appellant was also injured in the same occurrence and he too was admitted in the hospital. But, prosecution did not produce his medical record, nor the Doctor was examined on the nature of injuries sustained by the accused. The trial Court, instead of seeking proper explanation from the prosecution for the injuries sustained by the accused, appears to have simply believed what prosecution witnesses deposed in one sentence that the accused had sustained simple injuries only.30. From the evidence of I.O.—PW24 it is apparent that in the scuffle PW2 (Arumugham) receivedinjuries and he had taken the statement of Dr. Lavanya (PW17) who treated PW2. He had also examined Dr. Illayaraj (PW18) who conducted postmortem on the body of the deceased. But, in the case of accused—appellant, PW24—I.O. admits that he was aware of the fact that thewas admitted asant had sustained injuries. He further states that neither did he arrest the accused nor he examined the Doctor in regard to the injuries of accused. In the circumstances in which the deceased, accused and also(Arumugham) got injuries, it is obligatory on the part of I.O. to examine the Doctor and seek information about the injuries sustained by the accused and the same should have been made part of the record. A duty is cast on the prosecution to furnish proper explanation to the Court how the person who has been accused of assaulting the deceased, received injuries on his person in the same occurrence. We may note that the injuries alleged to have been caused are not properly explained. An alternative story is set up wherein the injuries are attributed to mob justice, such allegations without substantive evidence cannot be accepted.31. Coming to the other aspect of the case, motive of the accused to commit the crime is ascribed to the previous quarrel occasioned between the accused and the deceased during a drama at a village festival. Generally, in case prosecution desires to place motive of the accused as a circumstance, like any other incriminating circumstance, it should also be fully established. We are alive to the fact that if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. But in the case on hand, as we have already discussed in the above paragraphs, the evidence of direct witnesses is not satisfactory and on the other hand, it is demonstrated that the deceased hit the accused on his head with the wooden log besides the testimony from the eye witnesses that there was scuffle. In such a factual situation, certainly motive may act as asword.32. In the light of the settled law thus by this Court and also from what is clear from the evidence, there is absence of extreme cruelty, even if it assumed that accused hit the deceased with the log. Had there been a strong motive to do away with the life of deceased, generally there would have been more fatal injuries caused on the deceased not by a log but by utilizing more dangerous weapons. These circumstances would tell us that there is no reason to believe that motive was entertained by the accused in the back drop of quarrel that took place during drama at the village festival, prior to the date of occurrence. In as much as the prosecution laid the foundation for the commission of crime by the accused in the said quarrel as an element of motive, in the absence of positive proof of such motive, prosecution has to face the peril of failure in establishing that foundation.33. Now coming to other charge under Section 324 of IPC, for causing injuries to Arumugham @ AyyarIn light of the deficiencies noted above, it can be easily said that even the charge under Section 324 of IPC is not established. The aforesaid conclusion is clearly buttressed by the fact that the injured witness himself has attributed the injury on him to the deceased, instead of the accused. In such a situation conviction of the accused on the charge of Section 324 cannot be sustained under law.34. Taking stock of the circumstances and depositions of prosecution witnesses in this case, it would be difficult to hold that prosecution has laid the case on real circumstances and proved its case beyond reasonable doubt. We are surprised at the way in which Courts below have perceived the facts and circumstances of this case. We are not in agreement with the views drawn by the trial Court as well as the High Court while dealing with the matter.35. Normally this Court does not interfere with the concurrent findings recorded by the Courts below, but in this case we find certain exceptional circumstances as narrated above, considering these aspects we feel that this is a fit case for our interference. In our opinion, instead of dealing with the intrinsic merits of the evidence of witnesses, both the Courts below have acted perversely. Once we arrive at the conclusion that we cannot lend credence to the genuineness of the F.I.R. and the prosecution case, there is no need of further enquiry as the assertion made by the prosecution are not proved beyond reasonable doubt. In the peculiar facts and circumstances of the case, definitely the benefit of doubt goes to the accused—appellant. Viewed in that angle, the judgments of the Courts below awarding conviction and sentence to the accused—appellant requires to be set aside. | 1 | 5,357 | 1,860 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.” 29. In the case on hand, admittedly, the accused—appellant was also injured in the same occurrence and he too was admitted in the hospital. But, prosecution did not produce his medical record, nor the Doctor was examined on the nature of injuries sustained by the accused. The trial Court, instead of seeking proper explanation from the prosecution for the injuries sustained by the accused, appears to have simply believed what prosecution witnesses deposed in one sentence that the accused had sustained simple injuries only.30. From the evidence of I.O.—PW24 it is apparent that in the scuffle PW2 (Arumugham) received “simple” injuries and he had taken the statement of Dr. Lavanya (PW17) who treated PW2. He had also examined Dr. Illayaraj (PW18) who conducted postmortem on the body of the deceased. But, in the case of accused—appellant, PW24—I.O. admits that he was aware of the fact that the accused-appellant was admitted as in-patient and the accused-appellant had sustained injuries. He further states that neither did he arrest the accused nor he examined the Doctor in regard to the injuries of accused. In the circumstances in which the deceased, accused and also PW-2 (Arumugham) got injuries, it is obligatory on the part of I.O. to examine the Doctor and seek information about the injuries sustained by the accused and the same should have been made part of the record. A duty is cast on the prosecution to furnish proper explanation to the Court how the person who has been accused of assaulting the deceased, received injuries on his person in the same occurrence. We may note that the injuries alleged to have been caused are not properly explained. An alternative story is set up wherein the injuries are attributed to mob justice, such allegations without substantive evidence cannot be accepted.31. Coming to the other aspect of the case, motive of the accused to commit the crime is ascribed to the previous quarrel occasioned between the accused and the deceased during a drama at a village festival. Generally, in case prosecution desires to place motive of the accused as a circumstance, like any other incriminating circumstance, it should also be fully established. We are alive to the fact that if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. But in the case on hand, as we have already discussed in the above paragraphs, the evidence of direct witnesses is not satisfactory and on the other hand, it is demonstrated that the deceased hit the accused on his head with the wooden log besides the testimony from the eye witnesses that there was scuffle. In such a factual situation, certainly motive may act as a double-edged sword.32. In the light of the settled law thus by this Court and also from what is clear from the evidence, there is absence of extreme cruelty, even if it assumed that accused hit the deceased with the log. Had there been a strong motive to do away with the life of deceased, generally there would have been more fatal injuries caused on the deceased not by a log but by utilizing more dangerous weapons. These circumstances would tell us that there is no reason to believe that motive was entertained by the accused in the back drop of quarrel that took place during drama at the village festival, prior to the date of occurrence. In as much as the prosecution laid the foundation for the commission of crime by the accused in the said quarrel as an element of motive, in the absence of positive proof of such motive, prosecution has to face the peril of failure in establishing that foundation.33. Now coming to other charge under Section 324 of IPC, for causing injuries to Arumugham @ Ayyar [PW-2]. In light of the deficiencies noted above, it can be easily said that even the charge under Section 324 of IPC is not established. The aforesaid conclusion is clearly buttressed by the fact that the injured witness himself has attributed the injury on him to the deceased, instead of the accused. In such a situation conviction of the accused on the charge of Section 324 cannot be sustained under law.34. Taking stock of the circumstances and depositions of prosecution witnesses in this case, it would be difficult to hold that prosecution has laid the case on real circumstances and proved its case beyond reasonable doubt. We are surprised at the way in which Courts below have perceived the facts and circumstances of this case. We are not in agreement with the views drawn by the trial Court as well as the High Court while dealing with the matter.35. Normally this Court does not interfere with the concurrent findings recorded by the Courts below, but in this case we find certain exceptional circumstances as narrated above, considering these aspects we feel that this is a fit case for our interference. In our opinion, instead of dealing with the intrinsic merits of the evidence of witnesses, both the Courts below have acted perversely. Once we arrive at the conclusion that we cannot lend credence to the genuineness of the F.I.R. and the prosecution case, there is no need of further enquiry as the assertion made by the prosecution are not proved beyond reasonable doubt. In the peculiar facts and circumstances of the case, definitely the benefit of doubt goes to the accused—appellant. Viewed in that angle, the judgments of the Courts below awarding conviction and sentence to the accused—appellant requires to be set aside.
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should not be believed.At the outset, it would be relevant to note the settled principles of law on this aspect. Generally failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true [See : Mohar Rai and Bharath Rai v. The State of Bihar, 1968 CriLJ 1479 ].In the case on hand, admittedly, the accused—appellant was also injured in the same occurrence and he too was admitted in the hospital. But, prosecution did not produce his medical record, nor the Doctor was examined on the nature of injuries sustained by the accused. The trial Court, instead of seeking proper explanation from the prosecution for the injuries sustained by the accused, appears to have simply believed what prosecution witnesses deposed in one sentence that the accused had sustained simple injuries only.30. From the evidence of I.O.—PW24 it is apparent that in the scuffle PW2 (Arumugham) receivedinjuries and he had taken the statement of Dr. Lavanya (PW17) who treated PW2. He had also examined Dr. Illayaraj (PW18) who conducted postmortem on the body of the deceased. But, in the case of accused—appellant, PW24—I.O. admits that he was aware of the fact that thewas admitted asant had sustained injuries. He further states that neither did he arrest the accused nor he examined the Doctor in regard to the injuries of accused. In the circumstances in which the deceased, accused and also(Arumugham) got injuries, it is obligatory on the part of I.O. to examine the Doctor and seek information about the injuries sustained by the accused and the same should have been made part of the record. A duty is cast on the prosecution to furnish proper explanation to the Court how the person who has been accused of assaulting the deceased, received injuries on his person in the same occurrence. We may note that the injuries alleged to have been caused are not properly explained. An alternative story is set up wherein the injuries are attributed to mob justice, such allegations without substantive evidence cannot be accepted.31. Coming to the other aspect of the case, motive of the accused to commit the crime is ascribed to the previous quarrel occasioned between the accused and the deceased during a drama at a village festival. Generally, in case prosecution desires to place motive of the accused as a circumstance, like any other incriminating circumstance, it should also be fully established. We are alive to the fact that if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. But in the case on hand, as we have already discussed in the above paragraphs, the evidence of direct witnesses is not satisfactory and on the other hand, it is demonstrated that the deceased hit the accused on his head with the wooden log besides the testimony from the eye witnesses that there was scuffle. In such a factual situation, certainly motive may act as asword.32. In the light of the settled law thus by this Court and also from what is clear from the evidence, there is absence of extreme cruelty, even if it assumed that accused hit the deceased with the log. Had there been a strong motive to do away with the life of deceased, generally there would have been more fatal injuries caused on the deceased not by a log but by utilizing more dangerous weapons. These circumstances would tell us that there is no reason to believe that motive was entertained by the accused in the back drop of quarrel that took place during drama at the village festival, prior to the date of occurrence. In as much as the prosecution laid the foundation for the commission of crime by the accused in the said quarrel as an element of motive, in the absence of positive proof of such motive, prosecution has to face the peril of failure in establishing that foundation.33. Now coming to other charge under Section 324 of IPC, for causing injuries to Arumugham @ AyyarIn light of the deficiencies noted above, it can be easily said that even the charge under Section 324 of IPC is not established. The aforesaid conclusion is clearly buttressed by the fact that the injured witness himself has attributed the injury on him to the deceased, instead of the accused. In such a situation conviction of the accused on the charge of Section 324 cannot be sustained under law.34. Taking stock of the circumstances and depositions of prosecution witnesses in this case, it would be difficult to hold that prosecution has laid the case on real circumstances and proved its case beyond reasonable doubt. We are surprised at the way in which Courts below have perceived the facts and circumstances of this case. We are not in agreement with the views drawn by the trial Court as well as the High Court while dealing with the matter.35. Normally this Court does not interfere with the concurrent findings recorded by the Courts below, but in this case we find certain exceptional circumstances as narrated above, considering these aspects we feel that this is a fit case for our interference. In our opinion, instead of dealing with the intrinsic merits of the evidence of witnesses, both the Courts below have acted perversely. Once we arrive at the conclusion that we cannot lend credence to the genuineness of the F.I.R. and the prosecution case, there is no need of further enquiry as the assertion made by the prosecution are not proved beyond reasonable doubt. In the peculiar facts and circumstances of the case, definitely the benefit of doubt goes to the accused—appellant. Viewed in that angle, the judgments of the Courts below awarding conviction and sentence to the accused—appellant requires to be set aside.
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Salig Ram Vs. Munshi Ram And Another | 21, that where, as in the present case, the Riwaj-i-am affects adversely the rights of females who had no opportunity whatever of appearing before the revenue authorities, the presumption would be weak, and only a few instances would suffice to rebut it."As females are not concerned in this case, the entries in the riwaj-i-am of Amritsar district in 1865, if they conflict with para. 48 of Rattigans Digest, should prevail. On that view Munshi Ram would have no right to succeed in the family of his natural father after he was adopted by Ata. The High Court, however, pointed out that there were decisions of courts which did not accept the riwaj-i-am of Amritsar district of 1865 as laying down the correct custom and therefore para. 48 of the Digest by Rattigan would still prevail. In this connection the High Court relied on Majja Singh v. Ram Singh, 43 Pun Re1879. That was however a case of jats and not of Brahmins and the person who was adopted in that case was an only son. That case would not therefore necessarily override the custom so far as it applies to Brahmins. In any case the position is made clear by the Manual of Customary Law prepared in 1911-12 by Mr. Craik. The custom recorded in that compilation is that with the exception of Brahmins and Khatris, an adopted son does not retain his right to inherit from his natural father, even if the latter dies without leaving any other son. The High Court however, pointed out that the Brahmis and Khatris did not accept this custom; but it failed to notice a further paragraph in answer to that very question where it was pointed out that among Brahmins and Khatris the same custom prevailed except that where there was no other son, the son who was adopted in another family would succeed to the property of his natural father. In 1940 the customary law of Amritsar district was again complied and the custom recorded is that an adopted son loses his right to inherit from his natural father but if the latter dies without other sons the adopted son cannot inherit as a son but may inherit collaterally as a successor of his adoptive father.5. The position as it emerges from a comparison of the entries in the riwaj-i-am of 1865. 1911-12 and 1940 is somewhat confused and the High Court therefore thought that the custom recorded in para 48 should be adhered to as Brahmins and Khatris did not accept the extreme position that a son given away in adoption was excluded altogether from succeeding in his natural fathers family as recorded in 1911-12.This conclusion seems to be fortified by the statements of Brahmins and Khatris in 1911-12that a son given away in adoption succeeded in the family of his natural father if he had no brother-though the High Court did not notice this part of the answer in the riwaj-i-am of 1911-12.The conclusion therefore at which we arrive is that amongst Brahmins and Khatris of Amritsar district, a son given away in adoption can succeed to the property of his natural father only if there is no other son of the natural father; if there is another son he cannot succeed.6. Now let us see how this proposition works out in the present case. In this case Munshi Ram was claiming to succeed not to the property of Hans Raj, his natural father, but to the property of Nanak Chand his natural grandfather. If the case was for succession to the property of the natural father, namely, Hans Raj, the custom might have favoured Munshi Ram, for Hans Raj had no other son and Munshi Ram would thus have succeeded to the property of Hans Raj. But Hans Raj, having died in the life time of his father (Nanak Chand), never succeeded to the property of his father. The High Court, however, thought that on the principle of representation Munshi Ram stepped into the shoes of Hans Raj and therefore was entitled to succeed to the estate left by Nanak Chand as his father would have succeeded if he had been alive at the time of the death of Nanak Chand. But if Munshi Ram is to succeed by the application of the principle of representation it would follow that Munshi Ram would really be deemed to be Hans Raj at the time of the death of Nanak Chand. In that case the position would be that Nanak Chand would have died leaving two sons, namely, Salig Ram and Munshi Ram in the guise of Hans Raj. But Munshi Ram having been adopted away and there being another son of Nanak Chand, even the custom recorded in para. 48 would exclude Munshi Ram because then there would be a brother of Munshi Ram alive in the family of Nanak Chand and this brother would succeed in exclusion of Munshi Ram who would be representing his father. The argument on behalf of Munshi Ram is that though for the purpose of representation Munshi Ram would be treated as if he stood in the shoes of his father, the representation could not go further and it could not be held that there were two sons of Nanak Chand living at the time of his death, one of whom in the guise of Munshi Ram was adopted away. We cannot accept this argument: and if Munshi Ram is to succeed on the principle of representation that principle must be fully worked out and he must for all intents and purposes be deemed to be Hans Raj. As the person who is deemed to be Hans Raj was adopted away and has a brother in the shape of Salig Ram he would not succeed even under the custom recorded in para. 48 of Rattigans Digest. The position therefore is that neither under Hindu law nor under the custom recorded in para, 48 can Munshi Ram succeed to the property of Nanak Chand. | 1[ds]It is not dispute before us that para. 48 applies in the case of adoptionappears that in 1865 the riwaj-i-am of Amritsar district stated that "An adopted son will not be a co-sharer amongst his brothers, in the property left by his natural father", i.e., a son given away in adoption will not inherit in the natural fathersHigh Court however, pointed out that the Brahmis and Khatris did not accept this custom; but it failed to notice a further paragraph in answer to that very question where it was pointed out that among Brahmins and Khatris the same custom prevailed except that where there was no other son, the son who was adopted in another family would succeed to the property of his natural father. In 1940 the customary law of Amritsar district was again complied and the custom recorded is that an adopted son loses his right to inherit from his natural father but if the latter dies without other sons the adopted son cannot inherit as a son but may inherit collaterally as a successor of his adoptive father.5. The position as it emerges from a comparison of the entries in the riwaj-i-am of 1865. 1911-12 and 1940 is somewhat confused and the High Court therefore thought that the custom recorded in para 48 should be adhered to as Brahmins and Khatris did not accept the extreme position that a son given away in adoption was excluded altogether from succeeding in his natural fathers family as recorded in 1911-12.This conclusion seems to be fortified by the statements of Brahmins and Khatris in 1911-12that a son given away in adoption succeeded in the family of his natural father if he had no brother-though the High Court did not notice this part of the answer in the riwaj-i-am of 1911-12.The conclusion therefore at which we arrive is that amongst Brahmins and Khatris of Amritsar district, a son given away in adoption can succeed to the property of his natural father only if there is no other son of the natural father; if there is another son he cannot succeed.6. Now let us see how this proposition works out in the present case. In this case Munshi Ram was claiming to succeed not to the property of Hans Raj, his natural father, but to the property of Nanak Chand his natural grandfather. If the case was for succession to the property of the natural father, namely, Hans Raj, the custom might have favoured Munshi Ram, for Hans Raj had no other son and Munshi Ram would thus have succeeded to the property of Hans Raj. But Hans Raj, having died in the life time of his father (Nanak Chand), never succeeded to the property of his father. The High Court, however, thought that on the principle of representation Munshi Ram stepped into the shoes of Hans Raj and therefore was entitled to succeed to the estate left by Nanak Chand as his father would have succeeded if he had been alive at the time of the death of Nanak Chand. But if Munshi Ram is to succeed by the application of the principle of representation it would follow that Munshi Ram would really be deemed to be Hans Raj at the time of the death of Nanak Chand. In that case the position would be that Nanak Chand would have died leaving two sons, namely, Salig Ram and Munshi Ram in the guise of Hans Raj. But Munshi Ram having been adopted away and there being another son of Nanak Chand, even the custom recorded in para. 48 would exclude Munshi Ram because then there would be a brother of Munshi Ram alive in the family of Nanak Chand and this brother would succeed in exclusion of Munshi Ram who would be representing hiscannot accept this argument: and if Munshi Ram is to succeed on the principle of representation that principle must be fully worked out and he must for all intents and purposes be deemed to be Hans Raj. As the person who is deemed to be Hans Raj was adopted away and has a brother in the shape of Salig Ram he would not succeed even under the custom recorded in para. 48 of Rattigans Digest. The position therefore is that neither under Hindu law nor under the custom recorded in para, 48 can Munshi Ram succeed to the property of Nanak Chand. | 1 | 2,404 | 784 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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21, that where, as in the present case, the Riwaj-i-am affects adversely the rights of females who had no opportunity whatever of appearing before the revenue authorities, the presumption would be weak, and only a few instances would suffice to rebut it."As females are not concerned in this case, the entries in the riwaj-i-am of Amritsar district in 1865, if they conflict with para. 48 of Rattigans Digest, should prevail. On that view Munshi Ram would have no right to succeed in the family of his natural father after he was adopted by Ata. The High Court, however, pointed out that there were decisions of courts which did not accept the riwaj-i-am of Amritsar district of 1865 as laying down the correct custom and therefore para. 48 of the Digest by Rattigan would still prevail. In this connection the High Court relied on Majja Singh v. Ram Singh, 43 Pun Re1879. That was however a case of jats and not of Brahmins and the person who was adopted in that case was an only son. That case would not therefore necessarily override the custom so far as it applies to Brahmins. In any case the position is made clear by the Manual of Customary Law prepared in 1911-12 by Mr. Craik. The custom recorded in that compilation is that with the exception of Brahmins and Khatris, an adopted son does not retain his right to inherit from his natural father, even if the latter dies without leaving any other son. The High Court however, pointed out that the Brahmis and Khatris did not accept this custom; but it failed to notice a further paragraph in answer to that very question where it was pointed out that among Brahmins and Khatris the same custom prevailed except that where there was no other son, the son who was adopted in another family would succeed to the property of his natural father. In 1940 the customary law of Amritsar district was again complied and the custom recorded is that an adopted son loses his right to inherit from his natural father but if the latter dies without other sons the adopted son cannot inherit as a son but may inherit collaterally as a successor of his adoptive father.5. The position as it emerges from a comparison of the entries in the riwaj-i-am of 1865. 1911-12 and 1940 is somewhat confused and the High Court therefore thought that the custom recorded in para 48 should be adhered to as Brahmins and Khatris did not accept the extreme position that a son given away in adoption was excluded altogether from succeeding in his natural fathers family as recorded in 1911-12.This conclusion seems to be fortified by the statements of Brahmins and Khatris in 1911-12that a son given away in adoption succeeded in the family of his natural father if he had no brother-though the High Court did not notice this part of the answer in the riwaj-i-am of 1911-12.The conclusion therefore at which we arrive is that amongst Brahmins and Khatris of Amritsar district, a son given away in adoption can succeed to the property of his natural father only if there is no other son of the natural father; if there is another son he cannot succeed.6. Now let us see how this proposition works out in the present case. In this case Munshi Ram was claiming to succeed not to the property of Hans Raj, his natural father, but to the property of Nanak Chand his natural grandfather. If the case was for succession to the property of the natural father, namely, Hans Raj, the custom might have favoured Munshi Ram, for Hans Raj had no other son and Munshi Ram would thus have succeeded to the property of Hans Raj. But Hans Raj, having died in the life time of his father (Nanak Chand), never succeeded to the property of his father. The High Court, however, thought that on the principle of representation Munshi Ram stepped into the shoes of Hans Raj and therefore was entitled to succeed to the estate left by Nanak Chand as his father would have succeeded if he had been alive at the time of the death of Nanak Chand. But if Munshi Ram is to succeed by the application of the principle of representation it would follow that Munshi Ram would really be deemed to be Hans Raj at the time of the death of Nanak Chand. In that case the position would be that Nanak Chand would have died leaving two sons, namely, Salig Ram and Munshi Ram in the guise of Hans Raj. But Munshi Ram having been adopted away and there being another son of Nanak Chand, even the custom recorded in para. 48 would exclude Munshi Ram because then there would be a brother of Munshi Ram alive in the family of Nanak Chand and this brother would succeed in exclusion of Munshi Ram who would be representing his father. The argument on behalf of Munshi Ram is that though for the purpose of representation Munshi Ram would be treated as if he stood in the shoes of his father, the representation could not go further and it could not be held that there were two sons of Nanak Chand living at the time of his death, one of whom in the guise of Munshi Ram was adopted away. We cannot accept this argument: and if Munshi Ram is to succeed on the principle of representation that principle must be fully worked out and he must for all intents and purposes be deemed to be Hans Raj. As the person who is deemed to be Hans Raj was adopted away and has a brother in the shape of Salig Ram he would not succeed even under the custom recorded in para. 48 of Rattigans Digest. The position therefore is that neither under Hindu law nor under the custom recorded in para, 48 can Munshi Ram succeed to the property of Nanak Chand.
### Response:
1
### Explanation:
It is not dispute before us that para. 48 applies in the case of adoptionappears that in 1865 the riwaj-i-am of Amritsar district stated that "An adopted son will not be a co-sharer amongst his brothers, in the property left by his natural father", i.e., a son given away in adoption will not inherit in the natural fathersHigh Court however, pointed out that the Brahmis and Khatris did not accept this custom; but it failed to notice a further paragraph in answer to that very question where it was pointed out that among Brahmins and Khatris the same custom prevailed except that where there was no other son, the son who was adopted in another family would succeed to the property of his natural father. In 1940 the customary law of Amritsar district was again complied and the custom recorded is that an adopted son loses his right to inherit from his natural father but if the latter dies without other sons the adopted son cannot inherit as a son but may inherit collaterally as a successor of his adoptive father.5. The position as it emerges from a comparison of the entries in the riwaj-i-am of 1865. 1911-12 and 1940 is somewhat confused and the High Court therefore thought that the custom recorded in para 48 should be adhered to as Brahmins and Khatris did not accept the extreme position that a son given away in adoption was excluded altogether from succeeding in his natural fathers family as recorded in 1911-12.This conclusion seems to be fortified by the statements of Brahmins and Khatris in 1911-12that a son given away in adoption succeeded in the family of his natural father if he had no brother-though the High Court did not notice this part of the answer in the riwaj-i-am of 1911-12.The conclusion therefore at which we arrive is that amongst Brahmins and Khatris of Amritsar district, a son given away in adoption can succeed to the property of his natural father only if there is no other son of the natural father; if there is another son he cannot succeed.6. Now let us see how this proposition works out in the present case. In this case Munshi Ram was claiming to succeed not to the property of Hans Raj, his natural father, but to the property of Nanak Chand his natural grandfather. If the case was for succession to the property of the natural father, namely, Hans Raj, the custom might have favoured Munshi Ram, for Hans Raj had no other son and Munshi Ram would thus have succeeded to the property of Hans Raj. But Hans Raj, having died in the life time of his father (Nanak Chand), never succeeded to the property of his father. The High Court, however, thought that on the principle of representation Munshi Ram stepped into the shoes of Hans Raj and therefore was entitled to succeed to the estate left by Nanak Chand as his father would have succeeded if he had been alive at the time of the death of Nanak Chand. But if Munshi Ram is to succeed by the application of the principle of representation it would follow that Munshi Ram would really be deemed to be Hans Raj at the time of the death of Nanak Chand. In that case the position would be that Nanak Chand would have died leaving two sons, namely, Salig Ram and Munshi Ram in the guise of Hans Raj. But Munshi Ram having been adopted away and there being another son of Nanak Chand, even the custom recorded in para. 48 would exclude Munshi Ram because then there would be a brother of Munshi Ram alive in the family of Nanak Chand and this brother would succeed in exclusion of Munshi Ram who would be representing hiscannot accept this argument: and if Munshi Ram is to succeed on the principle of representation that principle must be fully worked out and he must for all intents and purposes be deemed to be Hans Raj. As the person who is deemed to be Hans Raj was adopted away and has a brother in the shape of Salig Ram he would not succeed even under the custom recorded in para. 48 of Rattigans Digest. The position therefore is that neither under Hindu law nor under the custom recorded in para, 48 can Munshi Ram succeed to the property of Nanak Chand.
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Pal Vrs Employees Welfare Association Vs. Premier Automobiles Limited & Another | P.C. The members of the appellant association who are ex-employees of the respondent company, voluntarily retired pursuant to the voluntary retirement scheme announced by the company. Under the said scheme, two options were given to the employees, what is known as "Pension Scheme 1A with full pension" and "Pension Scheme B with 1/3rd commutation and balance 2/3rd Pension". The employees resigned from the service in terms of voluntary retirement scheme. They have received payments as per the scheme and they are paid pension as per their option. It was stated in the letter of acceptance issued by the company that employees would cease to be employees in the company with effect from the date mentioned in the acceptance letter. It appears that the employees of the company who were represented by the Association of Engineering Workers, had submitted a charter of demand on 24th April 1991, the previous settlement having expired on 31st December, 1990. On 8th September 1994 the Union and the respondent company arrived at settlement in the course of conciliation proceedings. The said settlement was signed on 8th September 1994. Clause 19 thereof provides that the company shall pay certain additional payment ranging from Rs.26260 to Rs.38715 depending upon the length of service and said payment shall be payable to all permanent workmen who are on the rolls of the company as on the date of signing of the said settlement dated 8th September 1994. Thus, the said settlement was applicable to the workmen in employment as on 8th September, 1994.2.The appellant-association filed an application under S.33-C(2) of the Industrial Disputes Act, 1947 for grant of benefits under the settlement dated 8th September 1994. The claim of the appellant was based on clause 9 of the Voluntary Retirement Scheme, which reads as follows:"(9) Employees opting for VRS will also be eligible for pro-rata arrears payment for the period upto 27th January 1992 arising out of any settlement reached hereafter. Those separated under VRS before 27th January 1992 will also be eligible for this. However, this will have no effect on the lumpsum/ pension amount arrived at on the basis of the formula as mentioned under clause 3 of the Scheme."Relying upon the aforesaid clause 9 it was contended that while entering into settlement, the Association of Engineering Workers conveniently avoided benefits to the V.R.S. employees by inserting clause 16 into the said settlement thereby making the scheme applicable only to the existing employees i.e. employees who were in employment on 8th September, 1994. It was alleged that clause 16 of the said settlement dated 8th September, 1994, designed to defeat the rights of the members of the appellant and demanded that its members be paid additional payment as per the settlement. The Labour Court accepted the appellants claim and directed the management of the company to pay to the employees all the benefits under the settlement dated 8th September 1994. By the impugned order the learned Single Judge set aside the order of the Industrial Court and dismissed the application preferred by the applicant under S.33-C(2). 3.We have heard the learned counsel appearing for both the parties and perused the judgment of the learned single Judge. The real issue is whether the claim set up by the appellant could have been granted under S.33-C(2) of the Act. It is settled position of law that the power of the Labour Court under S.33-C(2) extends to interpretation of the award or settlement on which the workmens right rests, like the executing Courts power to interpret the decree for the purpose of execution, where the basis of the claim is referable to the award or settlement, but it does not extend to determination of the dispute of entitlement or the basis of the claim if there be no prior adjudication or recognition of the same by the employer. Where the very basis of the claim or the entitlement of the workman to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of proceeding under S.33-C(2). The Labour Court has no jurisdiction to first decide the workmens entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under S.33C(2) of the Act. (See Central Bank of India Ltd. & Ors. v. Rajagopalan (P.S.) & Ors. 1964 (3) SCR 140 and Municipal Corporation of Delhi v. Ganesh Razak & Anr. 1995 1 CLR 171). 4.In the instant case, the settlement dated 8th September 1994 on the basis of which claim has been preferred specifically and unambiguously provides that the benefits arising out of the settlement dated 8th September 1994, would be available to the workmen who were on the rolls of the Company as on 1st July 1994. Thus the settlement dated 8th September 1994 does not confer any right on the members of the appellant.As far as clause 9 of the Voluntary Retirement Scheme is concerned, it merely provides that in case there is settlement in the future, the employees opting V.R.S. will also be entitled to pro-rata arrears for the period upto 27th January 1992 arising out of such settlement. It is thus clear that there is no existing right in the employees to claim the additional amount in accordance with the settlement dated 8th September, 1994. The Labour Court had clearly exceeded jurisdiction in granting the claim of the association. The learned single Judge was therefore, justified in setting aside the said order of the Labour Court. | 0[ds]4.In the instant case, the settlement dated 8th September 1994 on the basis of which claim has been preferred specifically and unambiguously provides that the benefits arising out of the settlement dated 8th September 1994, would be available to the workmen who were on the rolls of the Company as on 1st July 1994. Thus the settlement dated 8th September 1994 does not confer any right on the members of the appellant.As far as clause 9 of the Voluntary Retirement Scheme is concerned, it merely provides that in case there is settlement in the future, the employees opting V.R.S. will also be entitled toarrears for the period upto 27th January 1992 arising out of such settlement. It is thus clear that there is no existing right in the employees to claim the additional amount in accordance with the settlement dated 8th September, 1994. The Labour Court had clearly exceeded jurisdiction in granting the claim of the association. The learned single Judge was therefore, justified in setting aside the said order of the Labour Court. | 0 | 1,031 | 190 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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P.C. The members of the appellant association who are ex-employees of the respondent company, voluntarily retired pursuant to the voluntary retirement scheme announced by the company. Under the said scheme, two options were given to the employees, what is known as "Pension Scheme 1A with full pension" and "Pension Scheme B with 1/3rd commutation and balance 2/3rd Pension". The employees resigned from the service in terms of voluntary retirement scheme. They have received payments as per the scheme and they are paid pension as per their option. It was stated in the letter of acceptance issued by the company that employees would cease to be employees in the company with effect from the date mentioned in the acceptance letter. It appears that the employees of the company who were represented by the Association of Engineering Workers, had submitted a charter of demand on 24th April 1991, the previous settlement having expired on 31st December, 1990. On 8th September 1994 the Union and the respondent company arrived at settlement in the course of conciliation proceedings. The said settlement was signed on 8th September 1994. Clause 19 thereof provides that the company shall pay certain additional payment ranging from Rs.26260 to Rs.38715 depending upon the length of service and said payment shall be payable to all permanent workmen who are on the rolls of the company as on the date of signing of the said settlement dated 8th September 1994. Thus, the said settlement was applicable to the workmen in employment as on 8th September, 1994.2.The appellant-association filed an application under S.33-C(2) of the Industrial Disputes Act, 1947 for grant of benefits under the settlement dated 8th September 1994. The claim of the appellant was based on clause 9 of the Voluntary Retirement Scheme, which reads as follows:"(9) Employees opting for VRS will also be eligible for pro-rata arrears payment for the period upto 27th January 1992 arising out of any settlement reached hereafter. Those separated under VRS before 27th January 1992 will also be eligible for this. However, this will have no effect on the lumpsum/ pension amount arrived at on the basis of the formula as mentioned under clause 3 of the Scheme."Relying upon the aforesaid clause 9 it was contended that while entering into settlement, the Association of Engineering Workers conveniently avoided benefits to the V.R.S. employees by inserting clause 16 into the said settlement thereby making the scheme applicable only to the existing employees i.e. employees who were in employment on 8th September, 1994. It was alleged that clause 16 of the said settlement dated 8th September, 1994, designed to defeat the rights of the members of the appellant and demanded that its members be paid additional payment as per the settlement. The Labour Court accepted the appellants claim and directed the management of the company to pay to the employees all the benefits under the settlement dated 8th September 1994. By the impugned order the learned Single Judge set aside the order of the Industrial Court and dismissed the application preferred by the applicant under S.33-C(2). 3.We have heard the learned counsel appearing for both the parties and perused the judgment of the learned single Judge. The real issue is whether the claim set up by the appellant could have been granted under S.33-C(2) of the Act. It is settled position of law that the power of the Labour Court under S.33-C(2) extends to interpretation of the award or settlement on which the workmens right rests, like the executing Courts power to interpret the decree for the purpose of execution, where the basis of the claim is referable to the award or settlement, but it does not extend to determination of the dispute of entitlement or the basis of the claim if there be no prior adjudication or recognition of the same by the employer. Where the very basis of the claim or the entitlement of the workman to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of proceeding under S.33-C(2). The Labour Court has no jurisdiction to first decide the workmens entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under S.33C(2) of the Act. (See Central Bank of India Ltd. & Ors. v. Rajagopalan (P.S.) & Ors. 1964 (3) SCR 140 and Municipal Corporation of Delhi v. Ganesh Razak & Anr. 1995 1 CLR 171). 4.In the instant case, the settlement dated 8th September 1994 on the basis of which claim has been preferred specifically and unambiguously provides that the benefits arising out of the settlement dated 8th September 1994, would be available to the workmen who were on the rolls of the Company as on 1st July 1994. Thus the settlement dated 8th September 1994 does not confer any right on the members of the appellant.As far as clause 9 of the Voluntary Retirement Scheme is concerned, it merely provides that in case there is settlement in the future, the employees opting V.R.S. will also be entitled to pro-rata arrears for the period upto 27th January 1992 arising out of such settlement. It is thus clear that there is no existing right in the employees to claim the additional amount in accordance with the settlement dated 8th September, 1994. The Labour Court had clearly exceeded jurisdiction in granting the claim of the association. The learned single Judge was therefore, justified in setting aside the said order of the Labour Court.
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4.In the instant case, the settlement dated 8th September 1994 on the basis of which claim has been preferred specifically and unambiguously provides that the benefits arising out of the settlement dated 8th September 1994, would be available to the workmen who were on the rolls of the Company as on 1st July 1994. Thus the settlement dated 8th September 1994 does not confer any right on the members of the appellant.As far as clause 9 of the Voluntary Retirement Scheme is concerned, it merely provides that in case there is settlement in the future, the employees opting V.R.S. will also be entitled toarrears for the period upto 27th January 1992 arising out of such settlement. It is thus clear that there is no existing right in the employees to claim the additional amount in accordance with the settlement dated 8th September, 1994. The Labour Court had clearly exceeded jurisdiction in granting the claim of the association. The learned single Judge was therefore, justified in setting aside the said order of the Labour Court.
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State Bank of India & Others Vs. Alstom Power Boilers Limited & Others | message just a day prior stating: "In view of the above, I am directed to inform that the Government of India is not in a position to support the scheme of the proposed merger of APBL and APIL unless steps are taken to safeguard the interest and investments by the Government and financial institutions. It is requested that till then, the proposed merger may be differed." (Underlining supplied) The Government of India did not send its representatives to attend the meeting and voice its concern or oppose the resolution. The underlined portion from the communication of the Government extracted above makes it clear that the Government only thought that the scheme was adverse to the interest and investments by the Government and financial institutions but, did not feel that the scheme was adverse to the interest of the members or creditors or any class of them. The Government of India must be aware of the distinction between the individual interest of the Government and financial institutions as opposed to the interest of the company and its members and creditors and therefore, did not rightly oppose the scheme either in the meetings of the members and creditors nor in this Court. At the time of voting, it did not send its representative to vote at the meeting because, it probably know that in law its individual interest must yield to the greater interest of the company and its members and creditors. (iv) We have also noticed that the business of APBL was in shambles. It is true that it had come out of sickness and was no longer dealt with by the BIFR but that was not on account of any improvement in the business but, on account of huge amount of several hundreds of crores of rupees brought in by ARR/Alstom group by way of additional share capital to make the net worth positive. Even after several hundreds of crores were brought in by way of equity and preference share capital, APBL continued to make loss. its capital was eroded to the extend of about 95%. There was no hope that the APBL would survive on stand alone basis. We have also noted from the letter dated 7th January, 2000 (at page 711 AA of the compilation) by the Country President of ABBL/Alstom Power to the Secretary, Government of India, APBL proposed to the Government to take back APBL under the hold of Ministry of Power, to take back the management of APBL. The very said letter also makes an offer to transfer all its interest to the Government of India. The Alstom group had thus offered to cede the management control and transfer all its interest to the Government of India. We have no doubt in our mind that no person in management having any hope of success in the reasonable future offer would offer to cede the management control to any other person. The very offer to seed the management control itself shows that the management had lost all hopes of APBL being run successfully in any reasonable foreseeable future. It was in this light that the management of APBL decided to merge it with other group company when the Government did not come forward to take the management control. The decision was thus based on commercial wisdom. (v) After the scheme of arrangement was approved in the respective meetings of APBL and APIL, Mr. Praful Kumar Kenia, husband of Ms. Darshana Kenia and son-in-law of Mr. Damji Gala the appellants in the Appeal (Lodging No. 953 of 2002 purchased 100 shares of APIL. If the contention of these appellants that the scheme was harmful to the interest of the members of APIL and reduces the intrinsic value of its equity shares of its equity shares is to be accepted then we fail to see why appellants augmented their holdings and purchased a few more equity shares in APIL knowing fully well that their intrinsic value is going to be reduced by virtue of the scheme of amalgamation. The fact that Mr. kenia, his wife and father-in-law did not attend the meeting of the equity share holders either personally or through proxy to vote against the sanction of the scheme of arrangement and his conduct of purchasing further equity shares after the resolutions were passed leaves no manner of doubt in our minds that commercially, he was satisfied that the scheme was not against the interest of the members of APIL. We are of the view that the present opposition to the scheme is for collateral reasons. In his arguments, Mr. Vasudeo made allegations of threats and also of the inducement made to Kenia to win over their opposition which of course were denied by learned Counsel for the respondent company. It is possible that either because of the offer of inducement of hopes of offer of inducement to withdraw his opposition in the collateral motive. We however, are not obliged to make an inquiry into the real motive but we are certainly satisfied that their conduct shows they did not think that the scheme of arrangement was against the interest of the equity share holders of APIL as a class. (vi) We have also noted that the scheme of arrangement is uniform to all the members of a class.32. Nothing has been shown to us that the scheme of arrangement is in any way unfair and unjust to any class of members of creditors. Even though the Court while sanctioning a scheme must not act merely as a rubber stamp to approve the scheme of enquiry is limited and contours of jurisdiction of the Court are narrow. Court does not scrutinises the scheme as an Appellate Authority and respects the commercial wisdom of the members and creditors, unless the scheme is shown to be unfair and unjust. Even if we were to sit in appeal over the scheme, we would not have come to the conclusion that the present scheme was in any way unjust and unfair. | 0[ds]21. In the present case, we do not see any reason to make any furtherof the preference share holders. The Government of India did not form a separateamongst the class of preference share holders. The rights of the Government of India as a preference share holder were not so different from the other preference share holders namely the Alstom group. The terms offered to both of them were identical, each was to be issued 22 fully paid up equity shares in APIL in lieu of 85 preference shares of Rs. 100/each held by them in ABPL. The preference capital of each of them was going to be eroded to the same extend and their rights were affected similarly. There is nothing on record to show that they could not have consulted together in furtherance of their common interest. We therefore, reject the first contention that the Government of India formed a separatedistinct from other preference share holders.Dividend in respect of preference shares was unpaid for a period of more than two years. Under Clause (b) of(2) of section 87 of the Companies Act, the preference share holders were therefore, entitled to vote on every resolution at any meeting of the company. The Government of India was entitled to vote on the resolution seeking approval of the scheme in any and every meeting of the company including (i) the meeting of the equity shareholders and (ii) the meeting of the creditors. We have no doubt that the meeting of the equity share holders of the company was a meeting of the company and the Government of India was entitled to vote on every resolution placed before that meeting as a preference shareholder to whom dividend was not paid for more than 2 years. The Government of India which was a preference share holder, and an equity shareholder entitled to vote in that capacity also, however did not send its representative to attend either of the meetings of preference share holders or equity share holders. It was never denied the right to vote in the meeting of the equity shareholders. It voluntarily chose not to exercise its franchise by not sending its representative to attend either of the meetings.We are however unable to hold that the Government of India in the capacity of a preference share holder with unpaid dividends for more than two years, had a right to attend and vote at the meeting of the creditors.The right given under Clause (b) of(2) is "to vote on every resolutions placed before the company at any meeting". In our opinion, the words "before the company at any meeting" refer to a meeting of the company i.e. a meeting of the members of the company. A meeting of outsiders like the creditors of the company is not a meeting of the company. It is a special type of meeting of outsiders for a special purpose under section 391 of the Act. Sections 165 to 197 of the Act grouped under the heading. "Meetings and Proceedings" in Chapter I of Part VI of the Act contain certain provisions relating to the meetings. They also regard only the meetings of the members of the company (as opposed to the meetings of outsiders like creditors) as the meetings of the company. Another clue to this interpretation can be found by reference to Clause (c) of(2) of section 87 which lays down that the voting right of a holder of preference share who has a right to vote under(2) shall be in the same proportion as the capital paid up in respect of the preference share bears to the total paid up equity share capital of the company. For the purpose of determining the value of the vote cast by a preference share holder, one has to find its proportion to the total paid up equity capital of the company and not to the total debts of the company. In the meeting of the creditors of the company to be held under section 391 of the Act, the value of creditors vote for ascertaining requisite majority of 3/4th in value has a reference to the total debt of the company and not to the total paid up capital. A preference share is not a debt instrument. Preference share amount is a capital and not a debt. Thus, in the meeting of the creditors, it would not be possible to assign a value to the vote of a holder of preference share. If we were to hold that the preference share holders who are not paid dividend for more than two years are also entitled to attend the meeting of the creditors under section 391 of the Act and vote threat, then it would be impossible to determine what would be the value to their votes vis a vis the value of votes of creditors. It would be wrong to contend that preference share holders have a right to vote but, valuation of their vote is unascertainable. We are therefore of the view that preference share holders are not entitled to attend and vote at the meeting of the creditors convened under section 391 of the Act even though dividend on the preference shares have remained unpaid for more than 2 years.Admittedly, the entire net worth of APBL was eroded and the company was referred to BIFR under SICA. The scheme of Rehabilitation was approved by the BIFR under its order dated 30th May, 1995. Of the Rs. 26 crores owed to the Government of India, an amount of Rs. 4.6 crores was converted into equity share capital and balance of Rs. 21.4 crores was converted into 10% cumulative preference shares. In pursuance of the assurance given by it the ABB/Alstom group brought in money in the form of equity and preference shares capital as also debt. On account of the conversion of the loan by the Government into equity and preference share capital and bringing in of money by the ABB/Alstom group, the net worth of the company became positive, by the end of the year ending 31st March, 1996. The company thus ceased to be a sick company within the meaning of section 3(1)(o) of SICA. The BIFR also passed a formal order to that effect on 7th February, 1997.We express no opinion on the question as to whether it would be legal and valid to implement a scheme under sections 391 to 394 of the Act while the company is sick and governed by SICA or where the scheme of Rehabilitation under SICA is under implementation under the supervision of BIFR. However, as the company had ceased to be a sick company and was no longer monitored by the BIFR, sanction of the BIFR was not necessary for making an application under section 391 of the Act. We are unable to agree with the contention of the learned Advocate General that since the preference shares were issued in pursuance of the BIFR scheme and they were not yet redeemed, the scheme continued to remain in force. The basic purpose of a scheme under the BIFR is to give protection to a sick company against the action by the creditors to enable it to reorganise its affairs and continue to remain in business. The protection would not continue indefinitely till every obligation undertaken by the company under the scheme is fulfilled. If we were to hold that a company continues to be governed by the SICA and the scheme of Rehabilitation continues to be in force till the last preference share is redeemed or till the last debenture/bond issued in pursuance of the scheme is paid off, then a dishonest company may issue preference shares redeemable after a long time and/or may issue Yankee Bonds redeemable after number of years to claim protection and ward of the creditors till the last preference share is redeemed or the last bond holder is paid off. This cannot be the intention of the legislature. After the net worth becomes positive, the company ceases to be a sick company within the meaning of section 3(1)(o) of the SICA. APBL was not a sick company when the scheme under sections 391 to 394 of the Act was proposed and there was no bar for approval of the scheme.In the present case, petitioner companies had initially produced the audited accounts together with the Auditors Report for the year ending 31st March, 2001 both in the case of APBL as well as APIL. Despite the fact that the petitions came up for hearing before the learned Single Judge sometime in the year October, 2002 when the latest audited accounts as well as the auditors report for the year ending 31st March, 2002 were available, they were not produced by the company. We must however, mention that Mrs. Darshana Kenia (appellant in Appeal Stamp No. 981 of 2002) had produced the latest Balance Sheet and financial position of APIL after conclusion of the hearing before the learned Single Judge but, before pronouncing of the judgment. The learned Single Judge however, declined to look into the same for the reasons mentioned in paragraph 39 of its judgment. In the case of In the matter of Scheme of Amalgamation of Zee Interactive Multimedia Limited, Company Petition No. 1096 of 2001 decided on 1st February, 2001 one of us (Karnik, J.) reported in 2002 (4) Bom.C.R. (O.O.C.J.) 137, has clarified that the latest Balance Sheet, Profit and Loss Account and the Auditors Report must be produced up to the date of hearing of the company but, if they are not produced the Court can call for them to obtain the latest possible information even at and during the course of the hearing. We are of the opinion that the learned Single Judge was entitled to call for and look into the said Balance Sheet which were produced before him. The fact that they were not produced by the company but, were produced by Mrs. Kenia was immaterial. They were produced before the Court so that it could look into them and to ascertain the latest financial position. We have perused the latest financial position contained in the Balance Sheet produced before the learned Single Judge. We have also perused further financial results published by the company in newspapers in pursuance of a statutory/ SEBI requirement of publishing the quarterly results (and filed before us by the appellants in the compilation). We do not find anything adverse in them. On the contrary, we notice improvement in the financial position in the post amalgamation results published by the transferee company pending approval of the scheme of amalgamation by this Court.We are of the opinion that the requirement of placing before the Court all material facts relating to the company including latest financial position is satisfied.In the light of the aforesaid legal position, we would now proceed to consider whether the scheme of arrangement as proposed in the present case should have been sanctioned by the learned Single Judge. In doing so, we must take note of the facts mentioned below :(i) In their respective meetings of the equity share holders, preference share holders and creditors of APBL, the scheme was sanctioned almost unanimously. Less than 2% in value as well as in number of the share holders and creditors voted against the scheme in their respective meetings. In the meetings of the equity share holders and secured creditors of APIL also, the scheme was approved almost unanimously. Less than 2% of the members/creditors only opposed theState Bank of India, appellant No. 1 in Appeal No. 1116 of 2002 who was a share holder of APIL as well as creditor of APBL did not oppose the scheme in the respective meetings of the share holders and creditors. It did not attend the meeting of members of APIL. It attended the meeting of the creditors of APBL and voted in favour of the scheme. The IDBI appellant No. 2 in Appeal No. 1116 of 2002 who was an equity share holder of the transferee company also did not oppose the scheme in the meeting of the members of APIL. Thus, at the time of the meetings of the members and creditors, both the appellants in Appeal No. 1116 of 2002 in their commercial wisdom thoughts that the scheme was just and fair and in any event not opposed to the interest of the transferor or transferee company or their members or creditors. It is only later that they think that their individual interest are being harmed. In our opinion, while sanctioning the scheme, the Court has to see the general interest of the transferor and the transferee company as the case may be, and of different classes of their members and creditors in general and not to the interest of a particular member or creditors. The individual interest of a particular member or creditor or a group of members or creditors is to be distinguished from the interest of the class of members or creditors to which such individual or groupThe Government of India which was a preference share holder had sent a fax message just a day priorview of the above, I am directed to inform that the Government of India is not in a position to support the scheme of the proposed merger of APBL and APIL unless steps are taken to safeguard the interest and investments by the Government and financial institutions. It is requested that till then, the proposed merger may be differed." (UnderliningGovernment of India did not send its representatives to attend the meeting and voice its concern or oppose the resolution. The underlined portion from the communication of the Government extracted above makes it clear that the Government only thought that the scheme was adverse to the interest and investments by the Government and financial institutions but, did not feel that the scheme was adverse to the interest of the members or creditors or any class of them. The Government of India must be aware of the distinction between the individual interest of the Government and financial institutions as opposed to the interest of the company and its members and creditors and therefore, did not rightly oppose the scheme either in the meetings of the members and creditors nor in this Court. At the time of voting, it did not send its representative to vote at the meeting because, it probably know that in law its individual interest must yield to the greater interest of the company and its members andWe have also noticed that the business of APBL was in shambles. It is true that it had come out of sickness and was no longer dealt with by the BIFR but that was not on account of any improvement in the business but, on account of huge amount of several hundreds of crores of rupees brought in by ARR/Alstom group by way of additional share capital to make the net worth positive. Even after several hundreds of crores were brought in by way of equity and preference share capital, APBL continued to make loss. its capital was eroded to the extend of about 95%. There was no hope that the APBL would survive on stand alone basis. We have also noted from the letter dated 7th January, 2000 (at page 711 AA of the compilation) by the Country President of ABBL/Alstom Power to the Secretary, Government of India, APBL proposed to the Government to take back APBL under the hold of Ministry of Power, to take back the management of APBL. The very said letter also makes an offer to transfer all its interest to the Government of India. The Alstom group had thus offered to cede the management control and transfer all its interest to the Government of India. We have no doubt in our mind that no person in management having any hope of success in the reasonable future offer would offer to cede the management control to any other person. The very offer to seed the management control itself shows that the management had lost all hopes of APBL being run successfully in any reasonable foreseeable future. It was in this light that the management of APBL decided to merge it with other group company when the Government did not come forward to take the management control. The decision was thus based on commercialAfter the scheme of arrangement was approved in the respective meetings of APBL and APIL, Mr. Praful Kumar Kenia, husband of Ms. Darshana Kenia andof Mr. Damji Gala the appellants in the Appeal (Lodging No. 953 of 2002 purchased 100 shares of APIL. If the contention of these appellants that the scheme was harmful to the interest of the members of APIL and reduces the intrinsic value of its equity shares of its equity shares is to be accepted then we fail to see why appellants augmented their holdings and purchased a few more equity shares in APIL knowing fully well that their intrinsic value is going to be reduced by virtue of the scheme of amalgamation. The fact that Mr. kenia, his wife anddid not attend the meeting of the equity share holders either personally or through proxy to vote against the sanction of the scheme of arrangement and his conduct of purchasing further equity shares after the resolutions were passed leaves no manner of doubt in our minds that commercially, he was satisfied that the scheme was not against the interest of the members of APIL. We are of the view that the present opposition to the scheme is for collateral reasons. In his arguments, Mr. Vasudeo made allegations of threats and also of the inducement made to Kenia to win over their opposition which of course were denied by learned Counsel for the respondent company. It is possible that either because of the offer of inducement of hopes of offer of inducement to withdraw his opposition in the collateral motive. We however, are not obliged to make an inquiry into the real motive but we are certainly satisfied that their conduct shows they did not think that the scheme of arrangement was against the interest of the equity share holders of APIL as aWe have also noted that the scheme of arrangement is uniform to all the members of a class.32. Nothing has been shown to us that the scheme of arrangement is in any way unfair and unjust to any class of members of creditors. Even though the Court while sanctioning a scheme must not act merely as a rubber stamp to approve the scheme of enquiry is limited and contours of jurisdiction of the Court are narrow. Court does not scrutinises the scheme as an Appellate Authority and respects the commercial wisdom of the members and creditors, unless the scheme is shown to be unfair and unjust. Even if we were to sit in appeal over the scheme, we would not have come to the conclusion that the present scheme was in any way unjust and unfair. | 0 | 11,521 | 3,414 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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message just a day prior stating: "In view of the above, I am directed to inform that the Government of India is not in a position to support the scheme of the proposed merger of APBL and APIL unless steps are taken to safeguard the interest and investments by the Government and financial institutions. It is requested that till then, the proposed merger may be differed." (Underlining supplied) The Government of India did not send its representatives to attend the meeting and voice its concern or oppose the resolution. The underlined portion from the communication of the Government extracted above makes it clear that the Government only thought that the scheme was adverse to the interest and investments by the Government and financial institutions but, did not feel that the scheme was adverse to the interest of the members or creditors or any class of them. The Government of India must be aware of the distinction between the individual interest of the Government and financial institutions as opposed to the interest of the company and its members and creditors and therefore, did not rightly oppose the scheme either in the meetings of the members and creditors nor in this Court. At the time of voting, it did not send its representative to vote at the meeting because, it probably know that in law its individual interest must yield to the greater interest of the company and its members and creditors. (iv) We have also noticed that the business of APBL was in shambles. It is true that it had come out of sickness and was no longer dealt with by the BIFR but that was not on account of any improvement in the business but, on account of huge amount of several hundreds of crores of rupees brought in by ARR/Alstom group by way of additional share capital to make the net worth positive. Even after several hundreds of crores were brought in by way of equity and preference share capital, APBL continued to make loss. its capital was eroded to the extend of about 95%. There was no hope that the APBL would survive on stand alone basis. We have also noted from the letter dated 7th January, 2000 (at page 711 AA of the compilation) by the Country President of ABBL/Alstom Power to the Secretary, Government of India, APBL proposed to the Government to take back APBL under the hold of Ministry of Power, to take back the management of APBL. The very said letter also makes an offer to transfer all its interest to the Government of India. The Alstom group had thus offered to cede the management control and transfer all its interest to the Government of India. We have no doubt in our mind that no person in management having any hope of success in the reasonable future offer would offer to cede the management control to any other person. The very offer to seed the management control itself shows that the management had lost all hopes of APBL being run successfully in any reasonable foreseeable future. It was in this light that the management of APBL decided to merge it with other group company when the Government did not come forward to take the management control. The decision was thus based on commercial wisdom. (v) After the scheme of arrangement was approved in the respective meetings of APBL and APIL, Mr. Praful Kumar Kenia, husband of Ms. Darshana Kenia and son-in-law of Mr. Damji Gala the appellants in the Appeal (Lodging No. 953 of 2002 purchased 100 shares of APIL. If the contention of these appellants that the scheme was harmful to the interest of the members of APIL and reduces the intrinsic value of its equity shares of its equity shares is to be accepted then we fail to see why appellants augmented their holdings and purchased a few more equity shares in APIL knowing fully well that their intrinsic value is going to be reduced by virtue of the scheme of amalgamation. The fact that Mr. kenia, his wife and father-in-law did not attend the meeting of the equity share holders either personally or through proxy to vote against the sanction of the scheme of arrangement and his conduct of purchasing further equity shares after the resolutions were passed leaves no manner of doubt in our minds that commercially, he was satisfied that the scheme was not against the interest of the members of APIL. We are of the view that the present opposition to the scheme is for collateral reasons. In his arguments, Mr. Vasudeo made allegations of threats and also of the inducement made to Kenia to win over their opposition which of course were denied by learned Counsel for the respondent company. It is possible that either because of the offer of inducement of hopes of offer of inducement to withdraw his opposition in the collateral motive. We however, are not obliged to make an inquiry into the real motive but we are certainly satisfied that their conduct shows they did not think that the scheme of arrangement was against the interest of the equity share holders of APIL as a class. (vi) We have also noted that the scheme of arrangement is uniform to all the members of a class.32. Nothing has been shown to us that the scheme of arrangement is in any way unfair and unjust to any class of members of creditors. Even though the Court while sanctioning a scheme must not act merely as a rubber stamp to approve the scheme of enquiry is limited and contours of jurisdiction of the Court are narrow. Court does not scrutinises the scheme as an Appellate Authority and respects the commercial wisdom of the members and creditors, unless the scheme is shown to be unfair and unjust. Even if we were to sit in appeal over the scheme, we would not have come to the conclusion that the present scheme was in any way unjust and unfair.
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to which such individual or groupThe Government of India which was a preference share holder had sent a fax message just a day priorview of the above, I am directed to inform that the Government of India is not in a position to support the scheme of the proposed merger of APBL and APIL unless steps are taken to safeguard the interest and investments by the Government and financial institutions. It is requested that till then, the proposed merger may be differed." (UnderliningGovernment of India did not send its representatives to attend the meeting and voice its concern or oppose the resolution. The underlined portion from the communication of the Government extracted above makes it clear that the Government only thought that the scheme was adverse to the interest and investments by the Government and financial institutions but, did not feel that the scheme was adverse to the interest of the members or creditors or any class of them. The Government of India must be aware of the distinction between the individual interest of the Government and financial institutions as opposed to the interest of the company and its members and creditors and therefore, did not rightly oppose the scheme either in the meetings of the members and creditors nor in this Court. At the time of voting, it did not send its representative to vote at the meeting because, it probably know that in law its individual interest must yield to the greater interest of the company and its members andWe have also noticed that the business of APBL was in shambles. It is true that it had come out of sickness and was no longer dealt with by the BIFR but that was not on account of any improvement in the business but, on account of huge amount of several hundreds of crores of rupees brought in by ARR/Alstom group by way of additional share capital to make the net worth positive. Even after several hundreds of crores were brought in by way of equity and preference share capital, APBL continued to make loss. its capital was eroded to the extend of about 95%. There was no hope that the APBL would survive on stand alone basis. We have also noted from the letter dated 7th January, 2000 (at page 711 AA of the compilation) by the Country President of ABBL/Alstom Power to the Secretary, Government of India, APBL proposed to the Government to take back APBL under the hold of Ministry of Power, to take back the management of APBL. The very said letter also makes an offer to transfer all its interest to the Government of India. The Alstom group had thus offered to cede the management control and transfer all its interest to the Government of India. We have no doubt in our mind that no person in management having any hope of success in the reasonable future offer would offer to cede the management control to any other person. The very offer to seed the management control itself shows that the management had lost all hopes of APBL being run successfully in any reasonable foreseeable future. It was in this light that the management of APBL decided to merge it with other group company when the Government did not come forward to take the management control. The decision was thus based on commercialAfter the scheme of arrangement was approved in the respective meetings of APBL and APIL, Mr. Praful Kumar Kenia, husband of Ms. Darshana Kenia andof Mr. Damji Gala the appellants in the Appeal (Lodging No. 953 of 2002 purchased 100 shares of APIL. If the contention of these appellants that the scheme was harmful to the interest of the members of APIL and reduces the intrinsic value of its equity shares of its equity shares is to be accepted then we fail to see why appellants augmented their holdings and purchased a few more equity shares in APIL knowing fully well that their intrinsic value is going to be reduced by virtue of the scheme of amalgamation. The fact that Mr. kenia, his wife anddid not attend the meeting of the equity share holders either personally or through proxy to vote against the sanction of the scheme of arrangement and his conduct of purchasing further equity shares after the resolutions were passed leaves no manner of doubt in our minds that commercially, he was satisfied that the scheme was not against the interest of the members of APIL. We are of the view that the present opposition to the scheme is for collateral reasons. In his arguments, Mr. Vasudeo made allegations of threats and also of the inducement made to Kenia to win over their opposition which of course were denied by learned Counsel for the respondent company. It is possible that either because of the offer of inducement of hopes of offer of inducement to withdraw his opposition in the collateral motive. We however, are not obliged to make an inquiry into the real motive but we are certainly satisfied that their conduct shows they did not think that the scheme of arrangement was against the interest of the equity share holders of APIL as aWe have also noted that the scheme of arrangement is uniform to all the members of a class.32. Nothing has been shown to us that the scheme of arrangement is in any way unfair and unjust to any class of members of creditors. Even though the Court while sanctioning a scheme must not act merely as a rubber stamp to approve the scheme of enquiry is limited and contours of jurisdiction of the Court are narrow. Court does not scrutinises the scheme as an Appellate Authority and respects the commercial wisdom of the members and creditors, unless the scheme is shown to be unfair and unjust. Even if we were to sit in appeal over the scheme, we would not have come to the conclusion that the present scheme was in any way unjust and unfair.
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I.T.C. Ltd Vs. Collector of Central Excise, Patna | consideration of this Court was whether the crude PVC films manufactured by the appellant therein were goods within the meaning of Section 3. The crude PVC films represented an intermediate product used for captive consumption in manufacture of leather cloth, laminated jute mattings and PVC tapes. It was found by the appellate collector on the material produced by the appellants that crude PVC films were not marketable products. The Revenue could not produce any material establishing the contrary. On that basis it was held by this Court that the crude PVC films are not marketable and not being goods known to market, they cannot be treated as goods for the purposes of Section 3. It was observed that marketability is an essential ingredient in order to be dutiable under the Schedule to the Act. It was further observed that excise duty is leviable if the goods are capable of being sold, though its actual sale is not necessary. 16. In the case of Union of India vs. Delhi Cloth & General Mills Co. Ltd. 1997 (92) E.L.T. 315 (SC), reliance whereupon has been heavily placed on behalf of the appellant-Company, question that had arisen was whether excise duty was leviable on calcium carbide that was manufactured by the assessee-company not for its marketing, but for captive consumption, i.e, the same used to be utilised further in the production of acetylene gas for being marketed. On these facts, it was held that excise duty was not leviable on the manufacture of calcium carbide which was manufactured only for the captive consumption as one of the raw materials for production of acetylene gas and the same was leviable on the end product, i.e. acetylene gas which was marketable. This decision cannot be of any avail to the appellant as the same is clearly distinguishable. 17. From a conspectus of the aforesaid decisions, it would be clear that for the purposes of levy of excise duty, the test to be applied is whether the goods manufactured are marketable or not in the present case, the cigarette, which is the end product of tobacco, is fit for consumption before the same is removed for test. Packing of the cigarette cannot be said to be incidental or ancillary to the manufacturing process, but the same may be incidental or ancillary to its sale only. In case it is laid down that packing of cigarette is incidental or ancillary to the completion of manufactured products, the same may result into evasion of excise duty as before packing the cigarettes the same may be regularly supplied to each and every employee for his consumption without payment of excise duty thereon. The definition of manufacture under Section 2(f) very clearly includes process which is incidental or ancillary to the completion of manufactured product. Manufacture of cigarette is completed when the same emerges in the form of sticks of cigarettes which are sent to the laboratory for quality control test. Sticks of cigarettes can be consumed and manufacture of the end-product, i.e., cigarette, which is commercially known in the market as such, is completed before its removal for test and after testing only packing of the same, which is the requirement of rule 93 of the Rules, is done. Thus, we hold that sticks of cigarette which are removed for the purpose of test in the quality control laboratory located within the factory premises of the appellant-Company are liable to excise duty. 18. Coming now to the second question, it may be stated that learned counsel appearing on behalf of the Revenue could not dispute the proposition that the quantity of cigarette sticks that is destroyed in the course of quality control test is not liable to excise duty. He, however, submitted that no evidence whatsoever was adduced on behalf of the appellant-Company either before the assessing authorities or the Tribunal to show that any cigarette stick was destroyed in the process of quality control test, much less cigarette sticks of any particular quantity inasmuch as, undisputedly, for major period no account at all was maintained and for some period, though account was maintained in relation to the quantity of cigarette sticks sent to the laboratory for testing, but no account was maintained as to how much quantity was destroyed during the process of testing. It was pointed out by learned Additional Solicitor General that though in the show cause notice the appellant-Company was specifically called upon to show cause for non-maintenance of account in relation to the sticks of cigarette sent for quality control test, but in spite of that it failed to produce any account whatsoever to show as to how much quantity of cigarette sticks was sent for quality control test during different periods, much less producing any account in relation to the destruction of the cigarette sticks during the course of testing. At this stage, Shri Ganesh submitted that the matter should be remitted either to the Tribunal or the assessing authority for affording opportunity to the appellant to produce the accounts and then record a finding as to how many cigarette sticks were destroyed during the course of testing. In our view, no useful purpose will be served by remitting the matter on this question, firstly, because even according to the show cause reply filed by the appellant-Company before the assessing authorities, it had not maintained any account in relation to the destruction of cigarette sticks during the course of quality control test and, secondly, no reason was assigned for not producing any account either before the assessing authority or before the Tribunal in spite of the fact that it was clearly stated in the show cause notice that the appellant-Company was not maintaining any such account. In view of the non-maintenance and non-production of accounts in relation to the destruction of cigarette sticks during the course of testing, we are of the opinion that excise duty was leviable on the entire stock of cigarette sticks sent to the laboratory for quality control test. | 0[ds]17. From a conspectus of the aforesaid decisions, it would be clear that for the purposes of levy of excise duty, the test to be applied is whether the goods manufactured are marketable or not in the present case, the cigarette, which is the end product of tobacco, is fit for consumption before the same is removed for test. Packing of the cigarette cannot be said to be incidental or ancillary to the manufacturing process, but the same may be incidental or ancillary to its sale only. In case it is laid down that packing of cigarette is incidental or ancillary to the completion of manufactured products, the same may result into evasion of excise duty as before packing the cigarettes the same may be regularly supplied to each and every employee for his consumption without payment of excise duty thereon. The definition of manufacture under Section 2(f) very clearly includes process which is incidental or ancillary to the completion of manufactured product. Manufacture of cigarette is completed when the same emerges in the form of sticks of cigarettes which are sent to the laboratory for quality control test. Sticks of cigarettes can be consumed and manufacture of the end-product, i.e., cigarette, which is commercially known in the market as such, is completed before its removal for test and after testing only packing of the same, which is the requirement of rule 93 of the Rules, is done. Thus, we hold that sticks of cigarette which are removed for the purpose of test in the quality control laboratory located within the factory premises of the appellant-Company are liable to excise duty18. Coming now to the second question, it may be stated that learned counsel appearing on behalf of the Revenue could not dispute the proposition that the quantity of cigarette sticks that is destroyed in the course of quality control test is not liable to excise duty. He, however, submitted that no evidence whatsoever was adduced on behalf of the appellant-Company either before the assessing authorities or the Tribunal to show that any cigarette stick was destroyed in the process of quality control test, much less cigarette sticks of any particular quantity inasmuch as, undisputedly, for major period no account at all was maintained and for some period, though account was maintained in relation to the quantity of cigarette sticks sent to the laboratory for testing, but no account was maintained as to how much quantity was destroyed during the process of testing. It was pointed out by learned Additional Solicitor General that though in the show cause notice the appellant-Company was specifically called upon to show cause for non-maintenance of account in relation to the sticks of cigarette sent for quality control test, but in spite of that it failed to produce any account whatsoever to show as to how much quantity of cigarette sticks was sent for quality control test during different periods, much less producing any account in relation to the destruction of the cigarette sticks during the course of testing. At this stage, Shri Ganesh submitted that the matter should be remitted either to the Tribunal or the assessing authority for affording opportunity to the appellant to produce the accounts and then record a finding as to how many cigarette sticks were destroyed during the course of testing. In our view, no useful purpose will be served by remitting the matter on this question, firstly, because even according to the show cause reply filed by the appellant-Company before the assessing authorities, it had not maintained any account in relation to the destruction of cigarette sticks during the course of quality control test and, secondly, no reason was assigned for not producing any account either before the assessing authority or before the Tribunal in spite of the fact that it was clearly stated in the show cause notice that the appellant-Company was not maintaining any such account. In view of the non-maintenance and non-production of accounts in relation to the destruction of cigarette sticks during the course of testing, we are of the opinion that excise duty was leviable on the entire stock of cigarette sticks sent to the laboratory for quality control test. | 0 | 4,028 | 751 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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consideration of this Court was whether the crude PVC films manufactured by the appellant therein were goods within the meaning of Section 3. The crude PVC films represented an intermediate product used for captive consumption in manufacture of leather cloth, laminated jute mattings and PVC tapes. It was found by the appellate collector on the material produced by the appellants that crude PVC films were not marketable products. The Revenue could not produce any material establishing the contrary. On that basis it was held by this Court that the crude PVC films are not marketable and not being goods known to market, they cannot be treated as goods for the purposes of Section 3. It was observed that marketability is an essential ingredient in order to be dutiable under the Schedule to the Act. It was further observed that excise duty is leviable if the goods are capable of being sold, though its actual sale is not necessary. 16. In the case of Union of India vs. Delhi Cloth & General Mills Co. Ltd. 1997 (92) E.L.T. 315 (SC), reliance whereupon has been heavily placed on behalf of the appellant-Company, question that had arisen was whether excise duty was leviable on calcium carbide that was manufactured by the assessee-company not for its marketing, but for captive consumption, i.e, the same used to be utilised further in the production of acetylene gas for being marketed. On these facts, it was held that excise duty was not leviable on the manufacture of calcium carbide which was manufactured only for the captive consumption as one of the raw materials for production of acetylene gas and the same was leviable on the end product, i.e. acetylene gas which was marketable. This decision cannot be of any avail to the appellant as the same is clearly distinguishable. 17. From a conspectus of the aforesaid decisions, it would be clear that for the purposes of levy of excise duty, the test to be applied is whether the goods manufactured are marketable or not in the present case, the cigarette, which is the end product of tobacco, is fit for consumption before the same is removed for test. Packing of the cigarette cannot be said to be incidental or ancillary to the manufacturing process, but the same may be incidental or ancillary to its sale only. In case it is laid down that packing of cigarette is incidental or ancillary to the completion of manufactured products, the same may result into evasion of excise duty as before packing the cigarettes the same may be regularly supplied to each and every employee for his consumption without payment of excise duty thereon. The definition of manufacture under Section 2(f) very clearly includes process which is incidental or ancillary to the completion of manufactured product. Manufacture of cigarette is completed when the same emerges in the form of sticks of cigarettes which are sent to the laboratory for quality control test. Sticks of cigarettes can be consumed and manufacture of the end-product, i.e., cigarette, which is commercially known in the market as such, is completed before its removal for test and after testing only packing of the same, which is the requirement of rule 93 of the Rules, is done. Thus, we hold that sticks of cigarette which are removed for the purpose of test in the quality control laboratory located within the factory premises of the appellant-Company are liable to excise duty. 18. Coming now to the second question, it may be stated that learned counsel appearing on behalf of the Revenue could not dispute the proposition that the quantity of cigarette sticks that is destroyed in the course of quality control test is not liable to excise duty. He, however, submitted that no evidence whatsoever was adduced on behalf of the appellant-Company either before the assessing authorities or the Tribunal to show that any cigarette stick was destroyed in the process of quality control test, much less cigarette sticks of any particular quantity inasmuch as, undisputedly, for major period no account at all was maintained and for some period, though account was maintained in relation to the quantity of cigarette sticks sent to the laboratory for testing, but no account was maintained as to how much quantity was destroyed during the process of testing. It was pointed out by learned Additional Solicitor General that though in the show cause notice the appellant-Company was specifically called upon to show cause for non-maintenance of account in relation to the sticks of cigarette sent for quality control test, but in spite of that it failed to produce any account whatsoever to show as to how much quantity of cigarette sticks was sent for quality control test during different periods, much less producing any account in relation to the destruction of the cigarette sticks during the course of testing. At this stage, Shri Ganesh submitted that the matter should be remitted either to the Tribunal or the assessing authority for affording opportunity to the appellant to produce the accounts and then record a finding as to how many cigarette sticks were destroyed during the course of testing. In our view, no useful purpose will be served by remitting the matter on this question, firstly, because even according to the show cause reply filed by the appellant-Company before the assessing authorities, it had not maintained any account in relation to the destruction of cigarette sticks during the course of quality control test and, secondly, no reason was assigned for not producing any account either before the assessing authority or before the Tribunal in spite of the fact that it was clearly stated in the show cause notice that the appellant-Company was not maintaining any such account. In view of the non-maintenance and non-production of accounts in relation to the destruction of cigarette sticks during the course of testing, we are of the opinion that excise duty was leviable on the entire stock of cigarette sticks sent to the laboratory for quality control test.
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17. From a conspectus of the aforesaid decisions, it would be clear that for the purposes of levy of excise duty, the test to be applied is whether the goods manufactured are marketable or not in the present case, the cigarette, which is the end product of tobacco, is fit for consumption before the same is removed for test. Packing of the cigarette cannot be said to be incidental or ancillary to the manufacturing process, but the same may be incidental or ancillary to its sale only. In case it is laid down that packing of cigarette is incidental or ancillary to the completion of manufactured products, the same may result into evasion of excise duty as before packing the cigarettes the same may be regularly supplied to each and every employee for his consumption without payment of excise duty thereon. The definition of manufacture under Section 2(f) very clearly includes process which is incidental or ancillary to the completion of manufactured product. Manufacture of cigarette is completed when the same emerges in the form of sticks of cigarettes which are sent to the laboratory for quality control test. Sticks of cigarettes can be consumed and manufacture of the end-product, i.e., cigarette, which is commercially known in the market as such, is completed before its removal for test and after testing only packing of the same, which is the requirement of rule 93 of the Rules, is done. Thus, we hold that sticks of cigarette which are removed for the purpose of test in the quality control laboratory located within the factory premises of the appellant-Company are liable to excise duty18. Coming now to the second question, it may be stated that learned counsel appearing on behalf of the Revenue could not dispute the proposition that the quantity of cigarette sticks that is destroyed in the course of quality control test is not liable to excise duty. He, however, submitted that no evidence whatsoever was adduced on behalf of the appellant-Company either before the assessing authorities or the Tribunal to show that any cigarette stick was destroyed in the process of quality control test, much less cigarette sticks of any particular quantity inasmuch as, undisputedly, for major period no account at all was maintained and for some period, though account was maintained in relation to the quantity of cigarette sticks sent to the laboratory for testing, but no account was maintained as to how much quantity was destroyed during the process of testing. It was pointed out by learned Additional Solicitor General that though in the show cause notice the appellant-Company was specifically called upon to show cause for non-maintenance of account in relation to the sticks of cigarette sent for quality control test, but in spite of that it failed to produce any account whatsoever to show as to how much quantity of cigarette sticks was sent for quality control test during different periods, much less producing any account in relation to the destruction of the cigarette sticks during the course of testing. At this stage, Shri Ganesh submitted that the matter should be remitted either to the Tribunal or the assessing authority for affording opportunity to the appellant to produce the accounts and then record a finding as to how many cigarette sticks were destroyed during the course of testing. In our view, no useful purpose will be served by remitting the matter on this question, firstly, because even according to the show cause reply filed by the appellant-Company before the assessing authorities, it had not maintained any account in relation to the destruction of cigarette sticks during the course of quality control test and, secondly, no reason was assigned for not producing any account either before the assessing authority or before the Tribunal in spite of the fact that it was clearly stated in the show cause notice that the appellant-Company was not maintaining any such account. In view of the non-maintenance and non-production of accounts in relation to the destruction of cigarette sticks during the course of testing, we are of the opinion that excise duty was leviable on the entire stock of cigarette sticks sent to the laboratory for quality control test.
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Radha Kissan Chamria & Others Vs. Keshardeo Chamria & Another | him in cash. For securing these sums he executed a mortgage in favour of Fateh Chand. The mortgage covered other properties besides the shares purchased. Later, Fateh Chand brought a suit on both the mortgages and obtained a decree. Subsequently, in July 1939, he purchased the mortgaged properties in execution of that decree. Thereafter, the Bengal Money Lenders Act was passed and Akimuddin promptly made an application for re-opening the compromise decree and for reliefs under that Act. The question arose whether the second of the two mortgages, (Ex.2) was in respect of a loan. The Court held that that mortgage was in substance a loan. In his Judgment Mitter J., observed as follows : If in a transaction there is no. actual advance but only a notional advance- what a Court of law would deem to be an advance - with a view to earn interest, the transaction would be regarded as loan for the purpose of the Act. A renewed bond where interest is capitalised would thus be a loan although at its execution no. money is actually advanced. In order to determine the question whether a particular transaction amounts to a loan, the substance and not the form must be looked to and the facts and circumstances attending it must be taken into consideration. If the conclusion be that it was really an interest bearing investment it would be a loan."Having set out the tests for determining what made a transaction in substance a loan the learned Judge proceeded to examine the facts of the case to see if the tests were satisfied and observed as follows :"I will now examine the facts of the case we have before us, Fateh Chand Mahersi is admittedly a money lender. The interest which is provided for in Ex.2 (Mortgage for securing Rs. 2, 330) is the interest which he usually charged in money lending transactions. It is 15 per cent. per annum with yearly rests- a rate which he charged in his first mortgage (Ex.1) for Rs. 7000 which admittedly represented a loan transaction. In his books of accounts he entered the transaction as a loan transaction. The unpaid price was shown in these accounts to have been wiped off by the advance from the loan account. In these circumstances I think that it can be held that the price was paid off by a notional advance made by Fateh Chand to Akimuddin, the real intention of the former being investment of money at his usual rate of money-lending. I accordingly hold that the mortgage Ex. 2 amounts in substance to a loan transaction.Mitter J., therefore, was clearly led to the conclusion to which he arrived by consideration of the fact that the parties had treated the moneys secured by the mortgage as a loan and not as unpaid price which they originally were. This was clearly established by the fact that Fateh Chand had made entries in his accounts showing that the purchase money due to him had been paid off and the same amount had become due to him on a loan. It may be that when money is due from one party to another not on an advance actually made but on other accounts a debt comes into existence but, as said by Sen J., in this very case a debt is not necessarily a loan. The parties, however, may agree to treat the money as a loan and then the transaction may in substance be a loan for the purpose of the Bengal Money Lenders Act. But there is no. such agreement here. There is nothing to show that it had been intended that the original character of the moneys, namely, as unpaid price had been changed into a loan. In our view, therefore, Fateh Chands case does not assist the appellants.8. The other case on which Mr. Chatterjee relied, namely, Nimrode Barani Debya v. Sisir Kumar Mukherjee, 47 Cal W N 205 : (A I R 1942 cal 616 ) (B) does not carry the matter further. In that case the petitioners predecessors-in-interest owed some money to the opposite party on account of the price of the sale of some land. The purchase money was discharged partly in cash and partly by a promissory note. The note was renewed from time to time and the last renewal was by the petitioners themselves. The question was whether the last promissory note represented in substance a loan transaction. Hendeson J., who delivered the judgment in this case observed as follows :"The real nature of the present transaction was that the purchase money was paid partly in cash and partly by the hand-note. If the real cause of action in the present case were merely the unpaid purchase money with a reasonable rate of interest, it would have been paid off long ago. It is not the case of the seller being willing to take part payment but the case of a seller insisting upon full payment partly in cash and partly in something else. I am, therefore, of opinion that this transaction was in substance a loan."Here also, therefore, the judgment proceeded on the basis that the original debt was not a loan and was only a part of unpaid purchase money but the parties had treated the purchase money as paid off in its entirety and the amount equivalent to the unpaid purchase money as being due by the purchaser to the vendor by way of a loan. On such basis, the transaction may in substance be a loan. We have already stated that there is no. evidence of such treatment in this case. We find nothing here to show that the moneys originally due as price had come to be treated as a loan. The appellants, therefore, cannot contend that they are "borrowers" or are being made to pay in respect of a "loan" as these terms are defined in the Act. They cannot, therefore, claim any benefit under S. 30 of the Act. | 0[ds]st question is what is the transaction in this case which is in substance a loan?On this question all that Mr. Chatterjee said was that the consent decree was itself such a transaction. He said that what had happened was that there was the agreement for sale under which Durga Prasad as the vendor was entitled to receive the stipulated price from the purchaser Radha Kissen, Moti Lal and Anardeyi and the compromise decree was really a transaction by which Durga Prasad agreed to treat the moneys due to him on account of price as a loan by him to the purchasers and repayable as such at a certain rate of interest and in a certain number of instalments.We agree with the learned Judge of the High Court that there is no. evidence of any agreement between the parties leading to the compromise decree. Both the Courts below have held that there was no. agreement as stated by Mr. Chatterjee. That is a question of fact and we in this Court are unable to disturb such a concurrent finding of fact. The agreement contained in the compromise decree itself is, of course, there. But looking at its terms we are unable to hold, as the High Court was unable to do, that it shows that the price due was by agreement treated as a loan by the vendor to thewe have no. other facts than those appearing on the face of the compromise decree and these facts do not, in our view, amount to an agreement to convert the outstanding purchase money into a loan by the vendor to the purchasers. All that we have here is an agreement by the vendor to accept payment of a portion of the moneys payable under the agreement for sale immediately and the balance in certain instalments and to be paid interest on the purchase money at the same rate which was provided in the agreement for sale. The compromise decree, no. doubt, vested the property agreed to be sold in one of the purchasers and created a charge on it for the purchase money unpaid for the time being. The vendor under the agreement for sale had thus been converted into an unpaid vendor who had conveyed to the purchasers the property agreed to be sold and had been given a charge on the property for the unpaid purchase money. An unpaid vendor who has transferred the property has a similar charge under S. 55 (4) (b) of the Transfer of Property Act. The only thing that was new in the compromise decree was that the moneys were payable in a number of instalments instead of at once. That cannot show that the price due had become a loan. The compromise decree does not in our opinion therefore alter the intrinsic nature of the moneys due to the vendor. They were and remained unpaid purchase moneys and had not at all been converted from that character into an support of his contention Mr. Chatterjee referred us to two decisions of the High Court at Calcutta. The first was Fateh Chand Mahesri v. Akimuddin Chaudhury, 47 Cal W n 52 : (AIR 1943 Cal 108 ) (A).We are unable to see that this case helps Mr.J., therefore, was clearly led to the conclusion to which he arrived by consideration of the fact that the parties had treated the moneys secured by the mortgage as a loan and not as unpaid price which they originally were. This was clearly established by the fact that Fateh Chand had made entries in his accounts showing that the purchase money due to him had been paid off and the same amount had become due to him on a loan. It may be that when money is due from one party to another not on an advance actually made but on other accounts a debt comes into existence but, as said by Sen J., in this very case a debt is not necessarily a loan. The parties, however, may agree to treat the money as a loan and then the transaction may in substance be a loan for the purpose of the Bengal Money Lenders Act. But there is no. such agreement here. There is nothing to show that it had been intended that the original character of the moneys, namely, as unpaid price had been changed into a loan. In our view, therefore, Fateh Chands case does not assist the appellants.8.The other case on which Mr. Chatterjee relied, namely, Nimrode Barani Debya v. Sisir Kumar Mukherjee, 47 Cal W N 205 : (A I R 1942 cal 616 ) (B)does not carry the matteralso, therefore, the judgment proceeded on the basis that the original debt was not a loan and was only a part of unpaid purchase money but the parties had treated the purchase money as paid off in its entirety and the amount equivalent to the unpaid purchase money as being due by the purchaser to the vendor by way of a loan. On such basis, the transaction may in substance be a loan. We have already stated that there is no. evidence of such treatment in this case. We find nothing here to show that the moneys originally due as price had come to be treated as a loan. The appellants, therefore, cannot contend that they are "borrowers" or are being made to pay in respect of a "loan" as these terms are defined in the Act. They cannot, therefore, claim any benefit under S. 30 of the Act. | 0 | 3,579 | 1,012 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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him in cash. For securing these sums he executed a mortgage in favour of Fateh Chand. The mortgage covered other properties besides the shares purchased. Later, Fateh Chand brought a suit on both the mortgages and obtained a decree. Subsequently, in July 1939, he purchased the mortgaged properties in execution of that decree. Thereafter, the Bengal Money Lenders Act was passed and Akimuddin promptly made an application for re-opening the compromise decree and for reliefs under that Act. The question arose whether the second of the two mortgages, (Ex.2) was in respect of a loan. The Court held that that mortgage was in substance a loan. In his Judgment Mitter J., observed as follows : If in a transaction there is no. actual advance but only a notional advance- what a Court of law would deem to be an advance - with a view to earn interest, the transaction would be regarded as loan for the purpose of the Act. A renewed bond where interest is capitalised would thus be a loan although at its execution no. money is actually advanced. In order to determine the question whether a particular transaction amounts to a loan, the substance and not the form must be looked to and the facts and circumstances attending it must be taken into consideration. If the conclusion be that it was really an interest bearing investment it would be a loan."Having set out the tests for determining what made a transaction in substance a loan the learned Judge proceeded to examine the facts of the case to see if the tests were satisfied and observed as follows :"I will now examine the facts of the case we have before us, Fateh Chand Mahersi is admittedly a money lender. The interest which is provided for in Ex.2 (Mortgage for securing Rs. 2, 330) is the interest which he usually charged in money lending transactions. It is 15 per cent. per annum with yearly rests- a rate which he charged in his first mortgage (Ex.1) for Rs. 7000 which admittedly represented a loan transaction. In his books of accounts he entered the transaction as a loan transaction. The unpaid price was shown in these accounts to have been wiped off by the advance from the loan account. In these circumstances I think that it can be held that the price was paid off by a notional advance made by Fateh Chand to Akimuddin, the real intention of the former being investment of money at his usual rate of money-lending. I accordingly hold that the mortgage Ex. 2 amounts in substance to a loan transaction.Mitter J., therefore, was clearly led to the conclusion to which he arrived by consideration of the fact that the parties had treated the moneys secured by the mortgage as a loan and not as unpaid price which they originally were. This was clearly established by the fact that Fateh Chand had made entries in his accounts showing that the purchase money due to him had been paid off and the same amount had become due to him on a loan. It may be that when money is due from one party to another not on an advance actually made but on other accounts a debt comes into existence but, as said by Sen J., in this very case a debt is not necessarily a loan. The parties, however, may agree to treat the money as a loan and then the transaction may in substance be a loan for the purpose of the Bengal Money Lenders Act. But there is no. such agreement here. There is nothing to show that it had been intended that the original character of the moneys, namely, as unpaid price had been changed into a loan. In our view, therefore, Fateh Chands case does not assist the appellants.8. The other case on which Mr. Chatterjee relied, namely, Nimrode Barani Debya v. Sisir Kumar Mukherjee, 47 Cal W N 205 : (A I R 1942 cal 616 ) (B) does not carry the matter further. In that case the petitioners predecessors-in-interest owed some money to the opposite party on account of the price of the sale of some land. The purchase money was discharged partly in cash and partly by a promissory note. The note was renewed from time to time and the last renewal was by the petitioners themselves. The question was whether the last promissory note represented in substance a loan transaction. Hendeson J., who delivered the judgment in this case observed as follows :"The real nature of the present transaction was that the purchase money was paid partly in cash and partly by the hand-note. If the real cause of action in the present case were merely the unpaid purchase money with a reasonable rate of interest, it would have been paid off long ago. It is not the case of the seller being willing to take part payment but the case of a seller insisting upon full payment partly in cash and partly in something else. I am, therefore, of opinion that this transaction was in substance a loan."Here also, therefore, the judgment proceeded on the basis that the original debt was not a loan and was only a part of unpaid purchase money but the parties had treated the purchase money as paid off in its entirety and the amount equivalent to the unpaid purchase money as being due by the purchaser to the vendor by way of a loan. On such basis, the transaction may in substance be a loan. We have already stated that there is no. evidence of such treatment in this case. We find nothing here to show that the moneys originally due as price had come to be treated as a loan. The appellants, therefore, cannot contend that they are "borrowers" or are being made to pay in respect of a "loan" as these terms are defined in the Act. They cannot, therefore, claim any benefit under S. 30 of the Act.
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st question is what is the transaction in this case which is in substance a loan?On this question all that Mr. Chatterjee said was that the consent decree was itself such a transaction. He said that what had happened was that there was the agreement for sale under which Durga Prasad as the vendor was entitled to receive the stipulated price from the purchaser Radha Kissen, Moti Lal and Anardeyi and the compromise decree was really a transaction by which Durga Prasad agreed to treat the moneys due to him on account of price as a loan by him to the purchasers and repayable as such at a certain rate of interest and in a certain number of instalments.We agree with the learned Judge of the High Court that there is no. evidence of any agreement between the parties leading to the compromise decree. Both the Courts below have held that there was no. agreement as stated by Mr. Chatterjee. That is a question of fact and we in this Court are unable to disturb such a concurrent finding of fact. The agreement contained in the compromise decree itself is, of course, there. But looking at its terms we are unable to hold, as the High Court was unable to do, that it shows that the price due was by agreement treated as a loan by the vendor to thewe have no. other facts than those appearing on the face of the compromise decree and these facts do not, in our view, amount to an agreement to convert the outstanding purchase money into a loan by the vendor to the purchasers. All that we have here is an agreement by the vendor to accept payment of a portion of the moneys payable under the agreement for sale immediately and the balance in certain instalments and to be paid interest on the purchase money at the same rate which was provided in the agreement for sale. The compromise decree, no. doubt, vested the property agreed to be sold in one of the purchasers and created a charge on it for the purchase money unpaid for the time being. The vendor under the agreement for sale had thus been converted into an unpaid vendor who had conveyed to the purchasers the property agreed to be sold and had been given a charge on the property for the unpaid purchase money. An unpaid vendor who has transferred the property has a similar charge under S. 55 (4) (b) of the Transfer of Property Act. The only thing that was new in the compromise decree was that the moneys were payable in a number of instalments instead of at once. That cannot show that the price due had become a loan. The compromise decree does not in our opinion therefore alter the intrinsic nature of the moneys due to the vendor. They were and remained unpaid purchase moneys and had not at all been converted from that character into an support of his contention Mr. Chatterjee referred us to two decisions of the High Court at Calcutta. The first was Fateh Chand Mahesri v. Akimuddin Chaudhury, 47 Cal W n 52 : (AIR 1943 Cal 108 ) (A).We are unable to see that this case helps Mr.J., therefore, was clearly led to the conclusion to which he arrived by consideration of the fact that the parties had treated the moneys secured by the mortgage as a loan and not as unpaid price which they originally were. This was clearly established by the fact that Fateh Chand had made entries in his accounts showing that the purchase money due to him had been paid off and the same amount had become due to him on a loan. It may be that when money is due from one party to another not on an advance actually made but on other accounts a debt comes into existence but, as said by Sen J., in this very case a debt is not necessarily a loan. The parties, however, may agree to treat the money as a loan and then the transaction may in substance be a loan for the purpose of the Bengal Money Lenders Act. But there is no. such agreement here. There is nothing to show that it had been intended that the original character of the moneys, namely, as unpaid price had been changed into a loan. In our view, therefore, Fateh Chands case does not assist the appellants.8.The other case on which Mr. Chatterjee relied, namely, Nimrode Barani Debya v. Sisir Kumar Mukherjee, 47 Cal W N 205 : (A I R 1942 cal 616 ) (B)does not carry the matteralso, therefore, the judgment proceeded on the basis that the original debt was not a loan and was only a part of unpaid purchase money but the parties had treated the purchase money as paid off in its entirety and the amount equivalent to the unpaid purchase money as being due by the purchaser to the vendor by way of a loan. On such basis, the transaction may in substance be a loan. We have already stated that there is no. evidence of such treatment in this case. We find nothing here to show that the moneys originally due as price had come to be treated as a loan. The appellants, therefore, cannot contend that they are "borrowers" or are being made to pay in respect of a "loan" as these terms are defined in the Act. They cannot, therefore, claim any benefit under S. 30 of the Act.
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Hindustan Coca Cola Bottling S/W Private Limited & Another Vs. Bhartiya Kamgar Sena & Others | circumstances, no complaint could lie under the Act as is held by the two courts below. We, therefore, find nothing wrong in the decision impugned before us. The workmen have first to establish that they are the workmen of the respondent company before they can file any complaint under the Act, admittedly, this has not been done. It is open for the workmen to raise an appropriate industrial dispute in that behalf if they are entitled to do so before they resort to the provisions of the present Act. 3. The appeals, therefore, stand dismissed with no order as to costs." 16. Mr. Cama also drew our attention to an unreported decision of the learned Single Judge of this Court (Khandeparkar, J.) in (Indian Seamless Metal Tubes Limited v. Sunil Iwale and others)8, Writ Petition No. 1433 of 2000 decided on 5th July, 2001. In that case the learned Judge has not agreed with the view taken by Kochar, J. in the present case and held that in view of the decisions of the Supreme Court in Cipla Ltd. and Kalyani Steels Ltd. that only precondition to seek remedy under the M.R.T.U. & P.U.L.P. Act is necessity of existence of employer-employee relationship between the parties and when its existence is not already established or is disputable, the party has to first seek relief under the Central Act, i.e. the Industrial Disputes Act or the Bombay Act, i.e. the Bombay Industrial Relations Act, and if successful therein to seek remedy under the said Act thereafter. We are in agreement with the observations of the learned Single Judge but with a rider that in cases where the employer-employee relationship was recognised at some stage and thereafter it was disputed, the Industrial Court has jurisdiction to decide this issue as an incidental issue under section 32 of the M.R.T.U. & P.U.L.P. Act. 17. In his judgment Khandeparkar, J., has referred to a judgment of another Single Judge Rebello, J. in Writ Petition No. 1365 of 2001 (Raigad Mazdoor Sangh v. Vikram Bapat)9. Rebello, J., has, inter alia, held that while deciding the question of maintainability of the complaint under M.R.T.U. & P.U.L.P. Act, the Industrial Court is bound to frame an issue as a preliminary issue on that count and after framing the preliminary issue decide the point of jurisdiction. Khandeparkar, J. has, however, disagreed with this view and held that the question of framing such issue does not arise if on a perusal of the complaint under the M.R.T.U. & P.U.L.P. Act it is found that there is no jurisdiction to try the complaint. He observed: "20. It was also sought to be contended that mere denial of status of the complainant as that of employee by the opponent, cannot non-suit the employees and such denial would not oust the jurisdiction to the Industrial Court to ascertain the fact situation by framing issues and asking the parties to lead evidence in that regard, and to decide the same, possibly by summary manner. In fact, similar was the contention sought to be raised in Vividha Kamgar Sabhas case by saying that such denials can be raised in each and every case to defeat the claim of the employee. The contention was rejected by the Apex Court. Indeed, a question of framing of issue or holding of summary inquiry does not arise at all. Once, it is clear that the Industrial Court under the said Act has no jurisdiction to decide the issue relating to employer employee relationship, the occasion for framing of issue on the point which is beyond its jurisdiction cannot arise. Once it is clear that the jurisdiction of the Industrial Court depends upon the fact of existence of employer-employees relationship between the parties which is a jurisdictional fact, which should exist to enable the Industrial Court to assume jurisdiction to entertain the complaint under the said Act, in the absence of the same, any attempt on the part of the Industrial Court to adjudicate upon the issue of such relationship would amount to mistake of fact in relation to jurisdiction." We are in respectful agreement with the above view expressed by Khandeparkar, J. If, on a bare reading of the complaint, the Industrial Court or the Labour Court as the case may be, is satisfied that it has no jurisdiction to decide the complaint as there is no undisputed or indisputable employer/employee relationship, the occasion for framing an issue on that count would not arise. If the Industrial Court or the Labour Court is satisfied that there is no undisputed or indisputable the employer/employee relationship, it cannot assume jurisdiction to entertain the complaint and the complaint will have to be dismissed as not maintainable. 18. In the light of the foregoing discussion, we have no hesitation in holding that in the instant case the complaints filed by the union and the employees are not maintainable and the Industrial Court has no jurisdiction to try these complaints. 19. The next question is what would be the fate of about 400 workers who are involved in the present proceedings. They have been working in the appellants establishment for a period of 2 years to 16 years. Taking into consideration the fact that the employees have been working with the company for long durations and there was interim protection granted to the employees which was also confirmed by this Court and also having regard to the fact that there is no possibility of amicable settlement of the dispute in conciliation, we think that the ends of justice would be better served by directing the State Government to treat the complaints as industrial disputes under section 10 of the Industrial Disputes Act and to make reference to the appropriate Industrial Tribunal accordingly. A similar order passed by the Division Bench in Writ Petition No. 1023 of 2000 (The Federation of Hindustan Lever Ltd. v. The Secretary State Contract Labour Advisory Board)10. and the S.L.P. filed against that order was dismissed by the Supreme Court. | 1[ds]9. In Cipla Ltd., the respondent Union had filed a complaint against the appellant therein under section 28 of the Act alleging that the appellant company has been engaging persons but on paper they are shown as contract workmen working for contractor, that the contractor is only a namelender whereas the appellant is the real employer of the workmen. It was alleged that the appellant company denied the relationship of employer and employee but that such denial of relationship was only to deprive the workmen of permanency in the company and payment of wages as are applicable to the permanent workmen of the company. The company, apart from denying that it is guilty of unfair labour practices, contended that, the employees in question were not the employees of the company, nor were they employed ostensibly through the contractor. The Labour Court came to the conclusion that the contractor was a separate entity and the contract was genuine and therefore dismissed the complaint. This decision of the Labour Court was confirmed by the Industrial Court.In Cipla Ltd., the Supreme Court has categorically held that if the case put forth by the workmen is that they have been employed by the contractor but the contract itself is a camouflage and in fact they are direct employees of the employer, this issue can only be gone into by the appropriate Industrial Tribunal or Labour Court constituted under the Industrial Disputes Act.It would be apparent from the above observations of the Supreme Court that if the employer employee relationship is established by the competent forum, viz. Industrial Tribunal or Labour Court under the Industrial Disputes Act or therelationship is undisputed or indisputable then the complaint under the M.R.T.U.P.U.L.P. Act would be maintainable. We hasten to add that as pointed out by the Supreme Court in Cipla Ltd. if at any time therelationship is recognised by the employer and subsequently it is disputed such a question would be incidental question arising under section 32 of the Act and the Labour Court or the Industrial Court as the case may be would be competent to decide such question. However, in a case where the employer had never recognised the workmen as his employees and throughout treated these persons as employees of the contractors, the Court constituted under section 28 of the M.R.T.U.P.U.L.P. Act will have no jurisdiction to entertain the complaint unless the status of relationship ofis first determined in a proceedings under the Industrial Disputes Act. 14. In Kalyani Steels Ltd. (supra), another two Judges Bench of the Supreme Court has taken an identical view. In fact, the said decision was rendered earlier in point of time and was affirmed in the Cipla Ltd. In Kalyani Steels Ltd., theclaimed that even though the concerned workmen are actually the workmen of the employer, the employer is not treating them at par with other employees but have nationally engaged contractors to run the canteen. This complaint came to be dismissed by the Industrial Court. The appellant union then filed S.L.P. directly to the Supreme Court on the ground that in the case of (Krantikari Suraksha Rakshak Sangathana v. S.V. Naik)7, reported in 1993(I) C.L.R. page 1002 has already held that the Industrial Court cannot in a complaint under M.R.T.U.P.U.L.P. Act to abolish contract labour and treat employees as direct employees of the company.It would also be useful to refer to the decision of the Supreme Court in Ahmedabad Mfg.Calico Printing Co. Ltd. which has been referred to in both Cipla Ltd and Kalyani Steels Ltd. In that case, the complaint of the union was that 21 workmen who were working in one of the canteen of thewere not given the service conditions as were available to the other workmen of the company and there was also a threat of termination of their services. It was an admitted position in that case that the workmen were employed by a contractor who was given a contract to run the canteen in question. The complaint, however, was filed on the footing that the workmen were the employees of the company and, therefore, the breaches committed and the threats of retrenchment were cognizable by the Industrial Court under the M.R.T.U.P.U.L.P. Act. Even in the complaint, there was no case made out that the workmen in question had ever been accepted by the company as its employees. However, the complaint proceeded on the basis as if the workmen were a part of theof the company. The Industrial Court dismissed the complaint holding that since the workmen were not the workmen of the respondent company, the complaint was not maintainable under the M.R.T.U.P.U.L.P. Act. The High Court in writ petition confirmed the said finding and dismissed the petition also on the same ground.Mr. Cama also drew our attention to an unreported decision of the learned Single Judge of this Court (Khandeparkar, J.) in (Indian Seamless Metal Tubes Limited v. Sunil Iwale and others)8, Writ Petition No. 1433 of 2000 decided on 5th July, 2001. In that case the learned Judge has not agreed with the view taken by Kochar, J. in the present case and held that in view of the decisions of the Supreme Court in Cipla Ltd. and Kalyani Steels Ltd. that only precondition to seek remedy under the M.R.T.U.P.U.L.P. Act is necessity of existence ofrelationship between the parties and when its existence is not already established or is disputable, the party has to first seek relief under the Central Act, i.e. the Industrial Disputes Act or the Bombay Act, i.e. the Bombay Industrial Relations Act, and if successful therein to seek remedy under the said Act thereafter. We are in agreement with the observations of the learned Single Judge but with a rider that in cases where therelationship was recognised at some stage and thereafter it was disputed, the Industrial Court has jurisdiction to decide this issue as an incidental issue under section 32 of the M.R.T.U.7. In his judgment Khandeparkar, J., has referred to a judgment of another Single Judge Rebello, J. in Writ Petition No. 1365 of 2001 (Raigad Mazdoor Sangh v. Vikram Bapat)9. Rebello, J., has, inter alia, held that while deciding the question of maintainability of the complaint under M.R.T.U.P.U.L.P. Act, the Industrial Court is bound to frame an issue as a preliminary issue on that count and after framing the preliminary issue decide the point ofare in respectful agreement with the above view expressed by Khandeparkar, J. If, on a bare reading of the complaint, the Industrial Court or the Labour Court as the case may be, is satisfied that it has no jurisdiction to decide the complaint as there is no undisputed or indisputable employer/employee relationship, the occasion for framing an issue on that count would not arise. If the Industrial Court or the Labour Court is satisfied that there is no undisputed or indisputable the employer/employee relationship, it cannot assume jurisdiction to entertain the complaint and the complaint will have to be dismissed as not maintainable.into consideration the fact that the employees have been working with the company for long durations and there was interim protection granted to the employees which was also confirmed by this Court and also having regard to the fact that there is no possibility of amicable settlement of the dispute in conciliation, we think that the ends of justice would be better served by directing the State Government to treat the complaints as industrial disputes under section 10 of the Industrial Disputes Act and to make reference to the appropriate Industrial Tribunal accordingly. | 1 | 6,038 | 1,369 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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circumstances, no complaint could lie under the Act as is held by the two courts below. We, therefore, find nothing wrong in the decision impugned before us. The workmen have first to establish that they are the workmen of the respondent company before they can file any complaint under the Act, admittedly, this has not been done. It is open for the workmen to raise an appropriate industrial dispute in that behalf if they are entitled to do so before they resort to the provisions of the present Act. 3. The appeals, therefore, stand dismissed with no order as to costs." 16. Mr. Cama also drew our attention to an unreported decision of the learned Single Judge of this Court (Khandeparkar, J.) in (Indian Seamless Metal Tubes Limited v. Sunil Iwale and others)8, Writ Petition No. 1433 of 2000 decided on 5th July, 2001. In that case the learned Judge has not agreed with the view taken by Kochar, J. in the present case and held that in view of the decisions of the Supreme Court in Cipla Ltd. and Kalyani Steels Ltd. that only precondition to seek remedy under the M.R.T.U. & P.U.L.P. Act is necessity of existence of employer-employee relationship between the parties and when its existence is not already established or is disputable, the party has to first seek relief under the Central Act, i.e. the Industrial Disputes Act or the Bombay Act, i.e. the Bombay Industrial Relations Act, and if successful therein to seek remedy under the said Act thereafter. We are in agreement with the observations of the learned Single Judge but with a rider that in cases where the employer-employee relationship was recognised at some stage and thereafter it was disputed, the Industrial Court has jurisdiction to decide this issue as an incidental issue under section 32 of the M.R.T.U. & P.U.L.P. Act. 17. In his judgment Khandeparkar, J., has referred to a judgment of another Single Judge Rebello, J. in Writ Petition No. 1365 of 2001 (Raigad Mazdoor Sangh v. Vikram Bapat)9. Rebello, J., has, inter alia, held that while deciding the question of maintainability of the complaint under M.R.T.U. & P.U.L.P. Act, the Industrial Court is bound to frame an issue as a preliminary issue on that count and after framing the preliminary issue decide the point of jurisdiction. Khandeparkar, J. has, however, disagreed with this view and held that the question of framing such issue does not arise if on a perusal of the complaint under the M.R.T.U. & P.U.L.P. Act it is found that there is no jurisdiction to try the complaint. He observed: "20. It was also sought to be contended that mere denial of status of the complainant as that of employee by the opponent, cannot non-suit the employees and such denial would not oust the jurisdiction to the Industrial Court to ascertain the fact situation by framing issues and asking the parties to lead evidence in that regard, and to decide the same, possibly by summary manner. In fact, similar was the contention sought to be raised in Vividha Kamgar Sabhas case by saying that such denials can be raised in each and every case to defeat the claim of the employee. The contention was rejected by the Apex Court. Indeed, a question of framing of issue or holding of summary inquiry does not arise at all. Once, it is clear that the Industrial Court under the said Act has no jurisdiction to decide the issue relating to employer employee relationship, the occasion for framing of issue on the point which is beyond its jurisdiction cannot arise. Once it is clear that the jurisdiction of the Industrial Court depends upon the fact of existence of employer-employees relationship between the parties which is a jurisdictional fact, which should exist to enable the Industrial Court to assume jurisdiction to entertain the complaint under the said Act, in the absence of the same, any attempt on the part of the Industrial Court to adjudicate upon the issue of such relationship would amount to mistake of fact in relation to jurisdiction." We are in respectful agreement with the above view expressed by Khandeparkar, J. If, on a bare reading of the complaint, the Industrial Court or the Labour Court as the case may be, is satisfied that it has no jurisdiction to decide the complaint as there is no undisputed or indisputable employer/employee relationship, the occasion for framing an issue on that count would not arise. If the Industrial Court or the Labour Court is satisfied that there is no undisputed or indisputable the employer/employee relationship, it cannot assume jurisdiction to entertain the complaint and the complaint will have to be dismissed as not maintainable. 18. In the light of the foregoing discussion, we have no hesitation in holding that in the instant case the complaints filed by the union and the employees are not maintainable and the Industrial Court has no jurisdiction to try these complaints. 19. The next question is what would be the fate of about 400 workers who are involved in the present proceedings. They have been working in the appellants establishment for a period of 2 years to 16 years. Taking into consideration the fact that the employees have been working with the company for long durations and there was interim protection granted to the employees which was also confirmed by this Court and also having regard to the fact that there is no possibility of amicable settlement of the dispute in conciliation, we think that the ends of justice would be better served by directing the State Government to treat the complaints as industrial disputes under section 10 of the Industrial Disputes Act and to make reference to the appropriate Industrial Tribunal accordingly. A similar order passed by the Division Bench in Writ Petition No. 1023 of 2000 (The Federation of Hindustan Lever Ltd. v. The Secretary State Contract Labour Advisory Board)10. and the S.L.P. filed against that order was dismissed by the Supreme Court.
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### Explanation:
is established by the competent forum, viz. Industrial Tribunal or Labour Court under the Industrial Disputes Act or therelationship is undisputed or indisputable then the complaint under the M.R.T.U.P.U.L.P. Act would be maintainable. We hasten to add that as pointed out by the Supreme Court in Cipla Ltd. if at any time therelationship is recognised by the employer and subsequently it is disputed such a question would be incidental question arising under section 32 of the Act and the Labour Court or the Industrial Court as the case may be would be competent to decide such question. However, in a case where the employer had never recognised the workmen as his employees and throughout treated these persons as employees of the contractors, the Court constituted under section 28 of the M.R.T.U.P.U.L.P. Act will have no jurisdiction to entertain the complaint unless the status of relationship ofis first determined in a proceedings under the Industrial Disputes Act. 14. In Kalyani Steels Ltd. (supra), another two Judges Bench of the Supreme Court has taken an identical view. In fact, the said decision was rendered earlier in point of time and was affirmed in the Cipla Ltd. In Kalyani Steels Ltd., theclaimed that even though the concerned workmen are actually the workmen of the employer, the employer is not treating them at par with other employees but have nationally engaged contractors to run the canteen. This complaint came to be dismissed by the Industrial Court. The appellant union then filed S.L.P. directly to the Supreme Court on the ground that in the case of (Krantikari Suraksha Rakshak Sangathana v. S.V. Naik)7, reported in 1993(I) C.L.R. page 1002 has already held that the Industrial Court cannot in a complaint under M.R.T.U.P.U.L.P. Act to abolish contract labour and treat employees as direct employees of the company.It would also be useful to refer to the decision of the Supreme Court in Ahmedabad Mfg.Calico Printing Co. Ltd. which has been referred to in both Cipla Ltd and Kalyani Steels Ltd. In that case, the complaint of the union was that 21 workmen who were working in one of the canteen of thewere not given the service conditions as were available to the other workmen of the company and there was also a threat of termination of their services. It was an admitted position in that case that the workmen were employed by a contractor who was given a contract to run the canteen in question. The complaint, however, was filed on the footing that the workmen were the employees of the company and, therefore, the breaches committed and the threats of retrenchment were cognizable by the Industrial Court under the M.R.T.U.P.U.L.P. Act. Even in the complaint, there was no case made out that the workmen in question had ever been accepted by the company as its employees. However, the complaint proceeded on the basis as if the workmen were a part of theof the company. The Industrial Court dismissed the complaint holding that since the workmen were not the workmen of the respondent company, the complaint was not maintainable under the M.R.T.U.P.U.L.P. Act. The High Court in writ petition confirmed the said finding and dismissed the petition also on the same ground.Mr. Cama also drew our attention to an unreported decision of the learned Single Judge of this Court (Khandeparkar, J.) in (Indian Seamless Metal Tubes Limited v. Sunil Iwale and others)8, Writ Petition No. 1433 of 2000 decided on 5th July, 2001. In that case the learned Judge has not agreed with the view taken by Kochar, J. in the present case and held that in view of the decisions of the Supreme Court in Cipla Ltd. and Kalyani Steels Ltd. that only precondition to seek remedy under the M.R.T.U.P.U.L.P. Act is necessity of existence ofrelationship between the parties and when its existence is not already established or is disputable, the party has to first seek relief under the Central Act, i.e. the Industrial Disputes Act or the Bombay Act, i.e. the Bombay Industrial Relations Act, and if successful therein to seek remedy under the said Act thereafter. We are in agreement with the observations of the learned Single Judge but with a rider that in cases where therelationship was recognised at some stage and thereafter it was disputed, the Industrial Court has jurisdiction to decide this issue as an incidental issue under section 32 of the M.R.T.U.7. In his judgment Khandeparkar, J., has referred to a judgment of another Single Judge Rebello, J. in Writ Petition No. 1365 of 2001 (Raigad Mazdoor Sangh v. Vikram Bapat)9. Rebello, J., has, inter alia, held that while deciding the question of maintainability of the complaint under M.R.T.U.P.U.L.P. Act, the Industrial Court is bound to frame an issue as a preliminary issue on that count and after framing the preliminary issue decide the point ofare in respectful agreement with the above view expressed by Khandeparkar, J. If, on a bare reading of the complaint, the Industrial Court or the Labour Court as the case may be, is satisfied that it has no jurisdiction to decide the complaint as there is no undisputed or indisputable employer/employee relationship, the occasion for framing an issue on that count would not arise. If the Industrial Court or the Labour Court is satisfied that there is no undisputed or indisputable the employer/employee relationship, it cannot assume jurisdiction to entertain the complaint and the complaint will have to be dismissed as not maintainable.into consideration the fact that the employees have been working with the company for long durations and there was interim protection granted to the employees which was also confirmed by this Court and also having regard to the fact that there is no possibility of amicable settlement of the dispute in conciliation, we think that the ends of justice would be better served by directing the State Government to treat the complaints as industrial disputes under section 10 of the Industrial Disputes Act and to make reference to the appropriate Industrial Tribunal accordingly.
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P. Rajan Sandhi Vs. Union Of India | 1. Heard the learned Counsel for the parties. This Appeal, by special leave, has been filed against the impugned judgment of the High Court of Kerala dated 29.7.2005 passed in W.A. No. 2131 of 2002. 2. The facts of the case have already been set out in the impugned judgment and hence we are not repeating the same here, except wherever necessary. 3. The appellant herein was an Assistant Editor in Mathrubhumami Printing and Publishing Company Limited, (respondent No. 2 herein) which is a newspaper publishing company. The appellant was charge-sheeted for making false allegations against the Managing Director of respondent No. 2 and of using discourteous language and for other various misconduct. An inquiry was conducted and, after giving him opportunity of hearing, the inquiry office found him guilty. The appellant was ultimately dismissed from service on 20.6.1988. An industrial dispute was raised and the Industrial Tribunal upheld the order of dismissal. The appellant challenged the order of the Industrial Tribunal by filing a Writ Petition which was dismissed. Thereafter, the appellant unsuccessfully challenged the dismissal of the Writ Petition by filing a Writ Appeal which was dismissed. Special Leave Petition filed by the appellant against the dismissal of the Writ Appeal was also dismissed by this Court. 4. In this round of litigation, now the question is about the appellant’s claim for gratuity. 5. The claim of the appellant for gratuity was rejected by the Management of respondent No. 2 against whose order the appellant has filed a Writ Petition which has been allowed by the learned Single Judge of the High Court. However, by the impugned judgment passed in Writ Appeal No. 2131 of 2002 the Division Bench of the High Court set aside the judgment of the learned Single Judge. Hence, this appeal by special leave. 6. The learned Counsel for the appellant relies on Section 4(6) of the Payment of Gratuity Act, 1972 (39 of 1972) which reads as under: “Section 4(6) Notwithstanding anything contained in Sub-section (1),—(a) The gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer shall be forfeited to the extent of the damage or loss so caused;(b) The gratuity payable to an employee may be wholly or partially forfeited—(i) If the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or(ii) If the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.” 7. The learned Counsel further submits that since no damage or loss to, or destruction of, property of the employer was alleged or proved against the appellant nor was he alleged to have committed any riotous or disorderly conduct or any other act of violence or any offence involving moral turpitude, his claim for gratuity could not have been denied. 8. On the other hand, the learned Counsel for respondent No. 2 relies on Section 5(1)(a)(i) of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 [for short ‘the Working Journalists Act’]. The relevant part of Section 5 is as under: “Section 5. Payment of gratuity.—(1) Where—(a) any working journalist has been in continuous service, whether before or after the commencement of this Act, for not less than three years in any newspaper establishment, and—(i) his services are terminated by the employer in relation to that newspaper estab-lishment for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary act, orxxxxxxxxxthe working journalist or, in the case of his death, his nominee or nominees or, if thee is no nomination in force at the time of the death of the working journalist, his family, as the case may be, shall, without prejudice to any benefits or rights accruing under the Industrial Disputes Act, 1947 (14 of 1947), be paid, on such termination, retirement, resignation or death, by the employer in relation to that establishment gratuity which shall be equivalent to fifteen days’ average pay for every completed year of service or any part thereof in excess of six months.” 9. It may be seen that there is a difference between the provisions for denial of gratuity in the Payment of Gratuity Act and in the Working Journalists Act. Under the Working Journalists Act gratuity can be denied if the service is terminated as a punishment inflicted by way of disciplinary act, as has been done in the instant case. We are of the opinion that Section 5 of the Working Journalists Act being a special law will prevail over Section 4(6) of the Payment of Gratuity Act which is a general law. Section 5 of the Working Journalists Act is only for working journalists, whereas the Payment of Gratuity Act is available to all employees who are covered by that Act and is not limited to working journalists. Hence, the Working Journalists Act is a special law, whereas the Payment of Gratuity Act is a general law. It is well settled that special law will prevail over the general law,vide G.P. Singh’s ‘Principles of Statutory Interpretation’, Ninth Edition, 2004 pp. 133, 134.10. The special law, i.e., Section 5(1)(a)(i) of the Working Journalists Act, does not require any allegation of proof of any damage or loss to, or destruction of, property, etc. as is required under the general law, i.e., the Payment of Gratuity Act. All that is required under the Working Journalists Act is that the termination should be as a punishment inflicted by way of disciplinary action, which is the position in the case at hand. Thus, if the service of an employee has been terminated by way of disciplinary action under the Working Journalists Act, he is not entitled to gratuity. | 0[ds]9. It may be seen that there is a difference between the provisions for denial of gratuity in the Payment of Gratuity Act and in the Working Journalists Act. Under the Working Journalists Act gratuity can be denied if the service is terminated as a punishment inflicted by way of disciplinary act, as has been done in the instant case. We are of the opinion that Section 5 of the Working Journalists Act being a special law will prevail over Section 4(6) of the Payment of Gratuity Act which is a general law. Section 5 of the Working Journalists Act is only for working journalists, whereas the Payment of Gratuity Act is available to all employees who are covered by that Act and is not limited to working journalists. Hence, the Working Journalists Act is a special law, whereas the Payment of Gratuity Act is a general law. It is well settled that special law will prevail over the general law,vide G.P.‘Principles of StatutoryNinth Edition, 2004 pp. 133, 134.10. The special law, i.e., Section 5(1)(a)(i) of the Working Journalists Act, does not require any allegation of proof of any damage or loss to, or destruction of, property, etc. as is required under the general law, i.e., the Payment of Gratuity Act. All that is required under the Working Journalists Act is that the termination should be as a punishment inflicted by way of disciplinary action, which is the position in the case at hand. Thus, if the service of an employee has been terminated by way of disciplinary action under the Working Journalists Act, he is not entitled to gratuity. | 0 | 1,173 | 319 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
1. Heard the learned Counsel for the parties. This Appeal, by special leave, has been filed against the impugned judgment of the High Court of Kerala dated 29.7.2005 passed in W.A. No. 2131 of 2002. 2. The facts of the case have already been set out in the impugned judgment and hence we are not repeating the same here, except wherever necessary. 3. The appellant herein was an Assistant Editor in Mathrubhumami Printing and Publishing Company Limited, (respondent No. 2 herein) which is a newspaper publishing company. The appellant was charge-sheeted for making false allegations against the Managing Director of respondent No. 2 and of using discourteous language and for other various misconduct. An inquiry was conducted and, after giving him opportunity of hearing, the inquiry office found him guilty. The appellant was ultimately dismissed from service on 20.6.1988. An industrial dispute was raised and the Industrial Tribunal upheld the order of dismissal. The appellant challenged the order of the Industrial Tribunal by filing a Writ Petition which was dismissed. Thereafter, the appellant unsuccessfully challenged the dismissal of the Writ Petition by filing a Writ Appeal which was dismissed. Special Leave Petition filed by the appellant against the dismissal of the Writ Appeal was also dismissed by this Court. 4. In this round of litigation, now the question is about the appellant’s claim for gratuity. 5. The claim of the appellant for gratuity was rejected by the Management of respondent No. 2 against whose order the appellant has filed a Writ Petition which has been allowed by the learned Single Judge of the High Court. However, by the impugned judgment passed in Writ Appeal No. 2131 of 2002 the Division Bench of the High Court set aside the judgment of the learned Single Judge. Hence, this appeal by special leave. 6. The learned Counsel for the appellant relies on Section 4(6) of the Payment of Gratuity Act, 1972 (39 of 1972) which reads as under: “Section 4(6) Notwithstanding anything contained in Sub-section (1),—(a) The gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer shall be forfeited to the extent of the damage or loss so caused;(b) The gratuity payable to an employee may be wholly or partially forfeited—(i) If the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or(ii) If the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.” 7. The learned Counsel further submits that since no damage or loss to, or destruction of, property of the employer was alleged or proved against the appellant nor was he alleged to have committed any riotous or disorderly conduct or any other act of violence or any offence involving moral turpitude, his claim for gratuity could not have been denied. 8. On the other hand, the learned Counsel for respondent No. 2 relies on Section 5(1)(a)(i) of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 [for short ‘the Working Journalists Act’]. The relevant part of Section 5 is as under: “Section 5. Payment of gratuity.—(1) Where—(a) any working journalist has been in continuous service, whether before or after the commencement of this Act, for not less than three years in any newspaper establishment, and—(i) his services are terminated by the employer in relation to that newspaper estab-lishment for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary act, orxxxxxxxxxthe working journalist or, in the case of his death, his nominee or nominees or, if thee is no nomination in force at the time of the death of the working journalist, his family, as the case may be, shall, without prejudice to any benefits or rights accruing under the Industrial Disputes Act, 1947 (14 of 1947), be paid, on such termination, retirement, resignation or death, by the employer in relation to that establishment gratuity which shall be equivalent to fifteen days’ average pay for every completed year of service or any part thereof in excess of six months.” 9. It may be seen that there is a difference between the provisions for denial of gratuity in the Payment of Gratuity Act and in the Working Journalists Act. Under the Working Journalists Act gratuity can be denied if the service is terminated as a punishment inflicted by way of disciplinary act, as has been done in the instant case. We are of the opinion that Section 5 of the Working Journalists Act being a special law will prevail over Section 4(6) of the Payment of Gratuity Act which is a general law. Section 5 of the Working Journalists Act is only for working journalists, whereas the Payment of Gratuity Act is available to all employees who are covered by that Act and is not limited to working journalists. Hence, the Working Journalists Act is a special law, whereas the Payment of Gratuity Act is a general law. It is well settled that special law will prevail over the general law,vide G.P. Singh’s ‘Principles of Statutory Interpretation’, Ninth Edition, 2004 pp. 133, 134.10. The special law, i.e., Section 5(1)(a)(i) of the Working Journalists Act, does not require any allegation of proof of any damage or loss to, or destruction of, property, etc. as is required under the general law, i.e., the Payment of Gratuity Act. All that is required under the Working Journalists Act is that the termination should be as a punishment inflicted by way of disciplinary action, which is the position in the case at hand. Thus, if the service of an employee has been terminated by way of disciplinary action under the Working Journalists Act, he is not entitled to gratuity.
### Response:
0
### Explanation:
9. It may be seen that there is a difference between the provisions for denial of gratuity in the Payment of Gratuity Act and in the Working Journalists Act. Under the Working Journalists Act gratuity can be denied if the service is terminated as a punishment inflicted by way of disciplinary act, as has been done in the instant case. We are of the opinion that Section 5 of the Working Journalists Act being a special law will prevail over Section 4(6) of the Payment of Gratuity Act which is a general law. Section 5 of the Working Journalists Act is only for working journalists, whereas the Payment of Gratuity Act is available to all employees who are covered by that Act and is not limited to working journalists. Hence, the Working Journalists Act is a special law, whereas the Payment of Gratuity Act is a general law. It is well settled that special law will prevail over the general law,vide G.P.‘Principles of StatutoryNinth Edition, 2004 pp. 133, 134.10. The special law, i.e., Section 5(1)(a)(i) of the Working Journalists Act, does not require any allegation of proof of any damage or loss to, or destruction of, property, etc. as is required under the general law, i.e., the Payment of Gratuity Act. All that is required under the Working Journalists Act is that the termination should be as a punishment inflicted by way of disciplinary action, which is the position in the case at hand. Thus, if the service of an employee has been terminated by way of disciplinary action under the Working Journalists Act, he is not entitled to gratuity.
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Umakant Vishnu Junnarkar Vs. Pramilabai & Another | personal knowledge. It is only necessary to refer to the evidence adduced by the plaintiff himself which, in our opinion, will show that Baburao did not receive any assets from his father which would enable him to acquire the suit properties. 13. There is evidence on record of P.W. 6, the paternal uncle of the appellant. While the appellant claimed that his adoptive father, Baburao, was getting income from a family temple, P.W. 6 has stated that Baburao was in service and was getting salary. He further deposed that Baburao went to Thana in or about 1938 and after that he was not getting any share from the income of the family temple. Even prior to 1939, it is evidence of P.W. 6 that there were several shares in the family who were entitled to share the income from the temple. His evidence clearly shows that the income from the temple was only about 1 to 4 seers of rice and the cash income was about Rs. 100/- or 150/- per year. Even accepting in full the evidence of this witness, it is clear that the finding of the Trial Court that Baburao did not get any assets from his father and that he did not get income from the temple which could have been utilised for the purchase of the plot and building the house is correct. It is significant to note that P.W. 6 admits that the period from 1925 to 1940 was one of a low cost of living and that food stuffs and other articles were available at a very cheap price. 14. We may state that the appellants plea was that Baburao obtained in or about 1922 in the family partition a sum of Rs. 3000/- in the form of ornaments and cash and this according to the plaintiff provided a nucleus for Baburao later on for purchasing the plot and building the house. There was absolutely no evidence which is worth considering led by the plaintiff to sustain this plea. P.W. 6, who is none else than the brother of Baburao, does not at all speak of any sharer having obtained this amount in the family partition. We are of the opinion that the finding that the suit properties were acquired by Baburao from and out of his own earning as an overseer in the Public Works Department is correct. If so, it follows that the claim of the plaintiff that the suit properties were the ancestral properties in the hands of his adoptive father Baburao in which he obtained a right as a consequence of adoption on February 25, 1941, had to be rejected. Inasmuch as the existence of a family nucleus in the hands of Baburao is not accepted by us, the question of Baburao having blended his own income with any ancestral assets in his hands does not survive. 15. The second contention of the plaintiff that the gift deed dated dated 30-3-1943 was executed by Baburao was a sham and nominal transaction does not require, in our opinion, any serious consideration. The plea of the plaintiff-appellant was that he having been admitted in the family in 1941, Baburao would not have had any intention of conferring full title in the first respondent so as to deprive the appellant of his rights in the property. According to the appellant the gift deed was executed only for the purpose of safeguarding the property and to see that the appellant does not behave improperly towards his adoptive mother, the donee. While we do sympathise with this claim made by the appellant, it is, in our opinion, devoid of any merits. One of the circumstances that has been relied upon in support of this contention was that even after the execution of the gift deed, the property stood in the names of both Baburao and the first respondent and that mutation was effected in the name of the first respondent only after 1946 when Baburao died. We are not inclined to accept this contention of Mr. Bal. The plaintiff has no doubt attempted to find support in this regard from the evidence given by the first respondent, the adoptive mother of the appellant. In our opinion the evidence of the mother has to be rejected as she is only trying to help the appellant after a decree had been obtained against her in the specific performance suit by the second respondent. The criticism that has been levelled by Mr. Bal against the judgment of the Trial Court is that it has acted illegally in relying upon the evidence given by the mother in the specific performance suit. We do agree that the evidence given by the first respondent in the specific performance suit is not by itself substantial evidence in the present litigation. The Trial Court has only referred to her evidence in the previous suit to show that she was giving conflicting versions to suit the occasion. But it is pertinent to note that the adoptive mother giving evidence as P.W. 5 in the present litigation has stated that she has executed a registered will on October 20, 1949, in respect of the suit properties. She has further deposed that in the said will she had claimed that the suit properties were acquired by her husband (the adoptive father of the plaintiff) from and out of his salary, supervision work and consultation work. But her evidence before the Court was totally different, namely, that her husband had ancestral assets in his hands which were utilised for the purchase of the plot and construction of house. She has again significantly admitted that in 1949 when she executed her will, she was very friendly with plaintiff. She has also stated that she has a right to dispose of the property, which she had acquired, under the will as she pleases. These answers make it very clear that the plea of the appellant that the gift deed was a sham and nominal transaction cannot be accepted. | 0[ds]9. We felt that in the particular circumstances of this case it was not necessary to consider the larger question raised by Mr. Bal that in no circumstances can a High Court dismiss a first appeal summarily without giving reasons10. It is enough to state that, as pointed out by this court in Mahadev Tukaram Vetale v. Smt. Sugandha, AIR 1972 SC 1932 , an appeal raising triable issues should not be summarily dismissed. Though a fairly large volume of evidence, oral and documentary, had been led by the parties, it was mentioned to us, particularly by the learned counsel for the appellant, that he proposes to rely only on very few items of evidence on record. We also felt that both sides were anxious that a very early end should be given to this litigation and that the matter should be disposed of by this Court itself on merits12. On the question regarding the character of the suit properties in the hands of Baburao, it must be stated at the outset that the plaintiff himself, who was very young on the date of his adoption, had no personal knowledge. It is only necessary to refer to the evidence adduced by the plaintiff himself which, in our opinion, will show that Baburao did not receive any assets from his father which would enable him to acquire the suit properties13. There is evidence on record of P.W. 6, the paternal uncle of the appellant. While the appellant claimed that his adoptive father, Baburao, was getting income from a family temple, P.W. 6 has stated that Baburao was in service and was getting salary. He further deposed that Baburao went to Thana in or about 1938 and after that he was not getting any share from the income of the family temple. Even prior to 1939, it is evidence of P.W. 6 that there were several shares in the family who were entitled to share the income from the temple. His evidence clearly shows that the income from the temple was only about 1 to 4 seers of rice and the cash income was about Rs. 100/or 150/per year. Even accepting in full the evidence of this witness, it is clear that the finding of the Trial Court that Baburao did not get any assets from his father and that he did not get income from the temple which could have been utilised for the purchase of the plot and building the house is correct. It is significant to note that P.W. 6 admits that the period from 1925 to 1940 was one of a low cost of living and that food stuffs and other articles were available at a very cheap price14. We may state that the appellants plea was that Baburao obtained in or about 1922 in the family partition a sum of Rs. 3000/in the form of ornaments and cash and this according to the plaintiff provided a nucleus for Baburao later on for purchasing the plot and building the house. There was absolutely no evidence which is worth considering led by the plaintiff to sustain this plea. P.W. 6, who is none else than the brother of Baburao, does not at all speak of any sharer having obtained this amount in the family partition. We are of the opinion that the finding that the suit properties were acquired by Baburao from and out of his own earning as an overseer in the Public Works Department is correct. If so, it follows that the claim of the plaintiff that the suit properties were the ancestral properties in the hands of his adoptive father Baburao in which he obtained a right as a consequence of adoption on February 25, 1941, had to be rejected. Inasmuch as the existence of a family nucleus in the hands of Baburao is not accepted by us, the question of Baburao having blended his own income with any ancestral assets in his hands does not survive15. The second contention of the plaintiff that the gift deed dated dated3 was executed by Baburao was a sham and nominal transactiondoes not require, in our opinion, any serious consideration. The plea of thet was that he having been admitted in the family in 1941, Baburao would not have had any intention of conferring full title in the first respondent so as to deprive the appellant of his rights in the property. According to the appellant the gift deed was executed only for the purpose of safeguarding the property and to see that the appellant does not behave improperly towards his adoptive mother, the donee. While we do sympathise with this claim made by the appellant, it is, in our opinion, devoid of any merits. One of the circumstances that has been relied upon in support of this contention was that even after the execution of the gift deed, the property stood in the names of both Baburao and the first respondent and that mutation was effected in the name of the first respondent only after 1946 when Baburao died. We are not inclined to accept this contention of Mr. Bal. The plaintiff has no doubt attempted to find support in this regard from the evidence given by the first respondent, the adoptive mother of the appellant. In our opinion the evidence of the mother has to be rejected as she is only trying to help the appellant after a decree had been obtained against her in the specific performance suit by the second respondent.The criticism that has been levelled by Mr. Bal against the judgment of the Trial Court is that it has acted illegally in relying upon the evidence given by the mother in the specific performancesuit.We do agree that the evidence given by the first respondent in the specific performance suit is not by itself substantial evidence in the present litigation. The Trial Court has only referred to her evidence in the previous suit to show that she was giving conflicting versions to suit the occasion. But it is pertinent to note that the adoptive mother giving evidence as P.W. 5 in the present litigation has stated that she has executed a registered will on October 20, 1949, in respect of the suit properties. She has further deposed that in the said will she had claimed that the suit properties were acquired by her husband (the adoptive father of the plaintiff) from and out of his salary, supervision work and consultation work. But her evidence before the Court was totally different, namely, that her husband had ancestral assets in his hands which were utilised for the purchase of the plot and construction of house. She has again significantly admitted that in 1949 when she executed her will, she was very friendly with plaintiff. She has also stated that she has a right to dispose of the property, which she had acquired, under the will as she pleases. These answers make it very clear that the plea of the appellant that the gift deed was a sham and nominal transaction cannot be accepted. | 0 | 2,612 | 1,268 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
personal knowledge. It is only necessary to refer to the evidence adduced by the plaintiff himself which, in our opinion, will show that Baburao did not receive any assets from his father which would enable him to acquire the suit properties. 13. There is evidence on record of P.W. 6, the paternal uncle of the appellant. While the appellant claimed that his adoptive father, Baburao, was getting income from a family temple, P.W. 6 has stated that Baburao was in service and was getting salary. He further deposed that Baburao went to Thana in or about 1938 and after that he was not getting any share from the income of the family temple. Even prior to 1939, it is evidence of P.W. 6 that there were several shares in the family who were entitled to share the income from the temple. His evidence clearly shows that the income from the temple was only about 1 to 4 seers of rice and the cash income was about Rs. 100/- or 150/- per year. Even accepting in full the evidence of this witness, it is clear that the finding of the Trial Court that Baburao did not get any assets from his father and that he did not get income from the temple which could have been utilised for the purchase of the plot and building the house is correct. It is significant to note that P.W. 6 admits that the period from 1925 to 1940 was one of a low cost of living and that food stuffs and other articles were available at a very cheap price. 14. We may state that the appellants plea was that Baburao obtained in or about 1922 in the family partition a sum of Rs. 3000/- in the form of ornaments and cash and this according to the plaintiff provided a nucleus for Baburao later on for purchasing the plot and building the house. There was absolutely no evidence which is worth considering led by the plaintiff to sustain this plea. P.W. 6, who is none else than the brother of Baburao, does not at all speak of any sharer having obtained this amount in the family partition. We are of the opinion that the finding that the suit properties were acquired by Baburao from and out of his own earning as an overseer in the Public Works Department is correct. If so, it follows that the claim of the plaintiff that the suit properties were the ancestral properties in the hands of his adoptive father Baburao in which he obtained a right as a consequence of adoption on February 25, 1941, had to be rejected. Inasmuch as the existence of a family nucleus in the hands of Baburao is not accepted by us, the question of Baburao having blended his own income with any ancestral assets in his hands does not survive. 15. The second contention of the plaintiff that the gift deed dated dated 30-3-1943 was executed by Baburao was a sham and nominal transaction does not require, in our opinion, any serious consideration. The plea of the plaintiff-appellant was that he having been admitted in the family in 1941, Baburao would not have had any intention of conferring full title in the first respondent so as to deprive the appellant of his rights in the property. According to the appellant the gift deed was executed only for the purpose of safeguarding the property and to see that the appellant does not behave improperly towards his adoptive mother, the donee. While we do sympathise with this claim made by the appellant, it is, in our opinion, devoid of any merits. One of the circumstances that has been relied upon in support of this contention was that even after the execution of the gift deed, the property stood in the names of both Baburao and the first respondent and that mutation was effected in the name of the first respondent only after 1946 when Baburao died. We are not inclined to accept this contention of Mr. Bal. The plaintiff has no doubt attempted to find support in this regard from the evidence given by the first respondent, the adoptive mother of the appellant. In our opinion the evidence of the mother has to be rejected as she is only trying to help the appellant after a decree had been obtained against her in the specific performance suit by the second respondent. The criticism that has been levelled by Mr. Bal against the judgment of the Trial Court is that it has acted illegally in relying upon the evidence given by the mother in the specific performance suit. We do agree that the evidence given by the first respondent in the specific performance suit is not by itself substantial evidence in the present litigation. The Trial Court has only referred to her evidence in the previous suit to show that she was giving conflicting versions to suit the occasion. But it is pertinent to note that the adoptive mother giving evidence as P.W. 5 in the present litigation has stated that she has executed a registered will on October 20, 1949, in respect of the suit properties. She has further deposed that in the said will she had claimed that the suit properties were acquired by her husband (the adoptive father of the plaintiff) from and out of his salary, supervision work and consultation work. But her evidence before the Court was totally different, namely, that her husband had ancestral assets in his hands which were utilised for the purchase of the plot and construction of house. She has again significantly admitted that in 1949 when she executed her will, she was very friendly with plaintiff. She has also stated that she has a right to dispose of the property, which she had acquired, under the will as she pleases. These answers make it very clear that the plea of the appellant that the gift deed was a sham and nominal transaction cannot be accepted.
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who was very young on the date of his adoption, had no personal knowledge. It is only necessary to refer to the evidence adduced by the plaintiff himself which, in our opinion, will show that Baburao did not receive any assets from his father which would enable him to acquire the suit properties13. There is evidence on record of P.W. 6, the paternal uncle of the appellant. While the appellant claimed that his adoptive father, Baburao, was getting income from a family temple, P.W. 6 has stated that Baburao was in service and was getting salary. He further deposed that Baburao went to Thana in or about 1938 and after that he was not getting any share from the income of the family temple. Even prior to 1939, it is evidence of P.W. 6 that there were several shares in the family who were entitled to share the income from the temple. His evidence clearly shows that the income from the temple was only about 1 to 4 seers of rice and the cash income was about Rs. 100/or 150/per year. Even accepting in full the evidence of this witness, it is clear that the finding of the Trial Court that Baburao did not get any assets from his father and that he did not get income from the temple which could have been utilised for the purchase of the plot and building the house is correct. It is significant to note that P.W. 6 admits that the period from 1925 to 1940 was one of a low cost of living and that food stuffs and other articles were available at a very cheap price14. We may state that the appellants plea was that Baburao obtained in or about 1922 in the family partition a sum of Rs. 3000/in the form of ornaments and cash and this according to the plaintiff provided a nucleus for Baburao later on for purchasing the plot and building the house. There was absolutely no evidence which is worth considering led by the plaintiff to sustain this plea. P.W. 6, who is none else than the brother of Baburao, does not at all speak of any sharer having obtained this amount in the family partition. We are of the opinion that the finding that the suit properties were acquired by Baburao from and out of his own earning as an overseer in the Public Works Department is correct. If so, it follows that the claim of the plaintiff that the suit properties were the ancestral properties in the hands of his adoptive father Baburao in which he obtained a right as a consequence of adoption on February 25, 1941, had to be rejected. Inasmuch as the existence of a family nucleus in the hands of Baburao is not accepted by us, the question of Baburao having blended his own income with any ancestral assets in his hands does not survive15. The second contention of the plaintiff that the gift deed dated dated3 was executed by Baburao was a sham and nominal transactiondoes not require, in our opinion, any serious consideration. The plea of thet was that he having been admitted in the family in 1941, Baburao would not have had any intention of conferring full title in the first respondent so as to deprive the appellant of his rights in the property. According to the appellant the gift deed was executed only for the purpose of safeguarding the property and to see that the appellant does not behave improperly towards his adoptive mother, the donee. While we do sympathise with this claim made by the appellant, it is, in our opinion, devoid of any merits. One of the circumstances that has been relied upon in support of this contention was that even after the execution of the gift deed, the property stood in the names of both Baburao and the first respondent and that mutation was effected in the name of the first respondent only after 1946 when Baburao died. We are not inclined to accept this contention of Mr. Bal. The plaintiff has no doubt attempted to find support in this regard from the evidence given by the first respondent, the adoptive mother of the appellant. In our opinion the evidence of the mother has to be rejected as she is only trying to help the appellant after a decree had been obtained against her in the specific performance suit by the second respondent.The criticism that has been levelled by Mr. Bal against the judgment of the Trial Court is that it has acted illegally in relying upon the evidence given by the mother in the specific performancesuit.We do agree that the evidence given by the first respondent in the specific performance suit is not by itself substantial evidence in the present litigation. The Trial Court has only referred to her evidence in the previous suit to show that she was giving conflicting versions to suit the occasion. But it is pertinent to note that the adoptive mother giving evidence as P.W. 5 in the present litigation has stated that she has executed a registered will on October 20, 1949, in respect of the suit properties. She has further deposed that in the said will she had claimed that the suit properties were acquired by her husband (the adoptive father of the plaintiff) from and out of his salary, supervision work and consultation work. But her evidence before the Court was totally different, namely, that her husband had ancestral assets in his hands which were utilised for the purchase of the plot and construction of house. She has again significantly admitted that in 1949 when she executed her will, she was very friendly with plaintiff. She has also stated that she has a right to dispose of the property, which she had acquired, under the will as she pleases. These answers make it very clear that the plea of the appellant that the gift deed was a sham and nominal transaction cannot be accepted.
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Union of India and Another Vs. Alok Kumar Dass and Others | Special leave granted.Learned counsel for Respondents 1 and 2 makes a statement that he has instructions to ask for withdrawal of the writ petition in the High Court. In this case, the appellants had granted a licence to Respondent 3 Company which permitted them to provide service of cellular phones. Respondents 1 and 2 herein were stated to be the subscribers. When the licence of Respondent 3 was cancelled because of non-payment of dues of Rs. 61 crores, Respondents 1 and 2 chose to file a writ petition in the High Court saying that the cancellation of the licence would amount to the disconnection of their telephones and, therefore, that licence should not be cancelled without making an alternative arrangement for the writ petitioners. On this, the impugned order was passed by the High Court permitting the Union of India to encash a bank guarantee of Rs. 8.9 crores and directing the appellants herein including the Department of Telecommunications (DoT) to reconnect the connectivity. We are astonished to see such an order being passed which is clearly a device used by the defaulter licensee to get his licence extended without making payment of the amounts due. We are firmly of the opinion that this device should not have been allowed to succeed. The writ petitioners had no locus standi to challenge the action of DoT in cancelling the licence of the licensee on account of non-payment of the licence fee. | 1[ds]We are astonished to see such an order being passed which is clearly a device used by the defaulter licensee to get his licence extended without making payment of the amounts due. We are firmly of the opinion that this device should not have been allowed to succeed. The writ petitioners had no locus standi to challenge the action of DoT in cancelling the licence of the licensee on account ofof the licence fee. | 1 | 257 | 81 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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Special leave granted.Learned counsel for Respondents 1 and 2 makes a statement that he has instructions to ask for withdrawal of the writ petition in the High Court. In this case, the appellants had granted a licence to Respondent 3 Company which permitted them to provide service of cellular phones. Respondents 1 and 2 herein were stated to be the subscribers. When the licence of Respondent 3 was cancelled because of non-payment of dues of Rs. 61 crores, Respondents 1 and 2 chose to file a writ petition in the High Court saying that the cancellation of the licence would amount to the disconnection of their telephones and, therefore, that licence should not be cancelled without making an alternative arrangement for the writ petitioners. On this, the impugned order was passed by the High Court permitting the Union of India to encash a bank guarantee of Rs. 8.9 crores and directing the appellants herein including the Department of Telecommunications (DoT) to reconnect the connectivity. We are astonished to see such an order being passed which is clearly a device used by the defaulter licensee to get his licence extended without making payment of the amounts due. We are firmly of the opinion that this device should not have been allowed to succeed. The writ petitioners had no locus standi to challenge the action of DoT in cancelling the licence of the licensee on account of non-payment of the licence fee.
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We are astonished to see such an order being passed which is clearly a device used by the defaulter licensee to get his licence extended without making payment of the amounts due. We are firmly of the opinion that this device should not have been allowed to succeed. The writ petitioners had no locus standi to challenge the action of DoT in cancelling the licence of the licensee on account ofof the licence fee.
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State of Tamil Nadu Vs. Pyare Lal Malhotra Etc | out of which it is made. each commercial commodity here becomes a separate object of taxation in series of sales of that commercial commodity so long as it retains its identity as that commodity.5. We think that the correct rule to apply in the cases before us is the one laid down by this Court in Devi Dass Gopal Krishan &Ors. v. The State of Punjab &ors.((1967) 20 S.T.C. 430 at 447.) where Subba Rao, C.J. speaking for a Constitution Bench of this Court, said at (p. 447) :"Now coming to Civil Appeals Nos. 39 to 43 of 1965, the first additional point raised is that when iron scrap is converted into rolled steel it does not involve the process of manufacture. It is contended that the said conversion does not involve any process of manufacture, but the scarp is made into a better marketable commodity. Before the High Court this contention was not pressed. That apart, it is clear that scrap iron ingots undergo a vital change in the process of manufacture and are converted into a different commodity, viz, rolled steer sections. During the process the scarp iron loses its identity and becomes a new marketable commodity."The process is certainly one of manufacture.It is true that the question whether goods to be taxed have been subjected to a manufacturing process so as to produce a new market able commodity, is the decisive test in determining whether an excise duty is leviable or not on certain goods. No doubt, in the law dealing with the sales tax, the taxable event is the sale and not the manufacture of goods. Nevertheless, if the question is whether a new commercial commodity has come into existence or not, so that its sale is a new taxable event, in the Sales Tax law, it may also become necessary to consider whether a manufacturing process, which has altered the identity of the commercial commodity, has taken place. The law of sale tax is also concerned with "goods" of various descriptions. It, therefore, become s necessary to determine when they cease to be goods of one taxable description and become those of a commercially different category and description.It appears to us that the position has been simplified by the amendment of the law, as indicated above, so that each of the categories falling under "Iron and Steel" constitutes a new species of commercial commodity more clearly new. It follows that when one commercial commodity is transformed into another, it becomes a separate commodity for purposes of sales tax.6. We think that the Madras High Court had committed an error in applying Hiralals case (supra) to the decision of cases now before us which turns really on a correct interpretation of Section 14 of the Central Act. On the question now before us, we approve of the reasoning adopted by a Division Bench of the Punjab High Court in Devgun Iron &Steel Rolling Mills v. State of Punjab((1961) 12 S.T. C. p. 590).7. Section 15 of the Central Act places certain restrictions and conditions upon State enactments imposing Sales tax. It says:Every sales tax law of a State shall, in so for as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions, namely:"(a) the tax payable under that law in respect of any sale or purchase of such goods inside the State shall not exceed three per cent of the sale or purchase price thereof, and such tax shall not be levied at more than one stage;(b) where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter-State trade or commerce, and tax has been paid under this Act in respect of the sale of such goods in the course of inter State trade or commerce, the tax levied under such law shall be reimbursed to the person making such sale ill the course of inter State trade or commerce in such manner and subject to such condition as may be provided in any law in force in that State". It has not been shown to us that any provision of the Tamil Nadu Sales Tax Act violates Section 15 of the Central Act enacted in accordance with Article 266(3) of the Constitution. Section 3 of the Tamil Nadu Act levies. taxes on sales and purchases of "goods" as defined in Section 2(j) of the Act:"(j) goods, means all kinds of movable property (other than newspapers, actionable claims, stocks and shares and securities) and includes all materials, commodities, and articles (including these to be used in the fitting out, improvement or repair of movable property), and all growing crops grass or things attached to, or forming part of the land which are agree to be severed before sale or under the contract of sale, "8. Section 4 of the Tamil Nadu Act lays down:"4. Tax in respect of declared goods. Notwithstanding anything contained in Section 3, the tax under this Act shall be payable by a dealer or the sale or purchase inside the State of declared goods at the rate and only at the point specified against each in the Second Schedule on the turn over in such good s in each year, whatever be the quantum of turnover in that year".Item 4 of the second schedule specifies the rates of tax in accordance with the Central Act. It reproduces Section 14(iv) of the Central Act. On an amendment of Section 14(iv) of the Central Act, serial No. 4 of the second schedule of the Tamil Nadu Act was also correspondingly amended so as to reproduce the sixteen items found in Section 14(iv) of the Central Act. Hence, the decision of these cases really depends on an interpretation of Section 14 of the Central Act which we have already given above. Other provisions only fortify our conclusion.9. | 1[ds]It is true that the question whether goods to be taxed have been subjected to a manufacturing process so as to produce a new market able commodity, is the decisive test in determining whether an excise duty is leviable or not on certain goods. No doubt, in the law dealing with the sales tax, the taxable event is the sale and not the manufacture of goods. Nevertheless, if the question is whether a new commercial commodity has come into existence or not, so that its sale is a new taxable event, in the Sales Tax law, it may also become necessary to consider whether a manufacturing process, which has altered the identity of the commercial commodity, has taken place. The law of sale tax is also concerned with "goods" of various descriptions. It, therefore, become s necessary to determine when they cease to be goods of one taxable description and become those of a commercially different category and description.It appears to us that the position has been simplified by the amendment of the law, as indicated above, so that each of the categories falling under "Iron and Steel" constitutes a new species of commercial commodity more clearly new. It follows that when one commercial commodity is transformed into another, it becomes a separate commodity for purposes of salesthink that the Madras High Court had committed an error in applying Hiralals case (supra) to the decision of cases now before us which turns really on a correct interpretation of Section 14 of the Central Act. On the question now before us, we approve of the reasoning adopted by a Division Bench of the Punjab High Court in Devgun Iron &Steel Rolling Mills v. State of Punjab((1961) 12 S.T. C. p.15 of the Central Act places certain restrictions and conditions upon State enactments imposing Sales4 of the second schedule specifies the rates of tax in accordance with the Central Act. It reproduces Section 14(iv) of the Central Act. On an amendment of Section 14(iv) of the Central Act, serial No. 4 of the second schedule of the Tamil Nadu Act was also correspondingly amended so as to reproduce the sixteen items found in Section 14(iv) of the Central Act. Hence, the decision of these cases really depends on an interpretation of Section 14 of the Central Act which we have already given above. Other provisions only fortify our conclusion.think that the Madras High Court had committed an error in applying Hiralals case (supra) to the decision of cases now before us which turns really on a correct interpretation of Section 14 of the Central Act. On the question now before us, we approve of the reasoning adopted by a Division Bench of the Punjab High Court in Devgun Iron &Steel Rolling Mills v. State of Punjab((1961) 12 S.T. C. p.is true that the question whether goods to be taxed have been subjected to a manufacturing process so as to produce a new market able commodity, is the decisive test in determining whether an excise duty is leviable or not on certain goods. No doubt, in the law dealing with the sales tax, the taxable event is the sale and not the manufacture of goods. Nevertheless, if the question is whether a new commercial commodity has come into existence or not, so that its sale is a new taxable event, in the Sales Tax law, it may also become necessary to consider whether a manufacturing process, which has altered the identity of the commercial commodity, has taken place. The law of sale tax is also concerned with "goods" of various descriptions. It, therefore, become s necessary to determine when they cease to be goods of one taxable description and become those of a commercially different category and description.It appears to us that the position has been simplified by the amendment of the law, as indicated above, so that each of the categories falling under "Iron and Steel" constitutes a new species of commercial commodity more clearly new. It follows that when one commercial commodity is transformed into another, it becomes a separate commodity for purposes of sales4 of the second schedule specifies the rates of tax in accordance with the Central Act. It reproduces Section 14(iv) of the Central Act. On an amendment of Section 14(iv) of the Central Act, serial No. 4 of the second schedule of the Tamil Nadu Act was also correspondingly amended so as to reproduce the sixteen items found in Section 14(iv) of the Central Act. Hence, the decision of these cases really depends on an interpretation of Section 14 of the Central Act which we have already given above. Other provisions only fortify our conclusion. | 1 | 4,551 | 881 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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out of which it is made. each commercial commodity here becomes a separate object of taxation in series of sales of that commercial commodity so long as it retains its identity as that commodity.5. We think that the correct rule to apply in the cases before us is the one laid down by this Court in Devi Dass Gopal Krishan &Ors. v. The State of Punjab &ors.((1967) 20 S.T.C. 430 at 447.) where Subba Rao, C.J. speaking for a Constitution Bench of this Court, said at (p. 447) :"Now coming to Civil Appeals Nos. 39 to 43 of 1965, the first additional point raised is that when iron scrap is converted into rolled steel it does not involve the process of manufacture. It is contended that the said conversion does not involve any process of manufacture, but the scarp is made into a better marketable commodity. Before the High Court this contention was not pressed. That apart, it is clear that scrap iron ingots undergo a vital change in the process of manufacture and are converted into a different commodity, viz, rolled steer sections. During the process the scarp iron loses its identity and becomes a new marketable commodity."The process is certainly one of manufacture.It is true that the question whether goods to be taxed have been subjected to a manufacturing process so as to produce a new market able commodity, is the decisive test in determining whether an excise duty is leviable or not on certain goods. No doubt, in the law dealing with the sales tax, the taxable event is the sale and not the manufacture of goods. Nevertheless, if the question is whether a new commercial commodity has come into existence or not, so that its sale is a new taxable event, in the Sales Tax law, it may also become necessary to consider whether a manufacturing process, which has altered the identity of the commercial commodity, has taken place. The law of sale tax is also concerned with "goods" of various descriptions. It, therefore, become s necessary to determine when they cease to be goods of one taxable description and become those of a commercially different category and description.It appears to us that the position has been simplified by the amendment of the law, as indicated above, so that each of the categories falling under "Iron and Steel" constitutes a new species of commercial commodity more clearly new. It follows that when one commercial commodity is transformed into another, it becomes a separate commodity for purposes of sales tax.6. We think that the Madras High Court had committed an error in applying Hiralals case (supra) to the decision of cases now before us which turns really on a correct interpretation of Section 14 of the Central Act. On the question now before us, we approve of the reasoning adopted by a Division Bench of the Punjab High Court in Devgun Iron &Steel Rolling Mills v. State of Punjab((1961) 12 S.T. C. p. 590).7. Section 15 of the Central Act places certain restrictions and conditions upon State enactments imposing Sales tax. It says:Every sales tax law of a State shall, in so for as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions, namely:"(a) the tax payable under that law in respect of any sale or purchase of such goods inside the State shall not exceed three per cent of the sale or purchase price thereof, and such tax shall not be levied at more than one stage;(b) where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter-State trade or commerce, and tax has been paid under this Act in respect of the sale of such goods in the course of inter State trade or commerce, the tax levied under such law shall be reimbursed to the person making such sale ill the course of inter State trade or commerce in such manner and subject to such condition as may be provided in any law in force in that State". It has not been shown to us that any provision of the Tamil Nadu Sales Tax Act violates Section 15 of the Central Act enacted in accordance with Article 266(3) of the Constitution. Section 3 of the Tamil Nadu Act levies. taxes on sales and purchases of "goods" as defined in Section 2(j) of the Act:"(j) goods, means all kinds of movable property (other than newspapers, actionable claims, stocks and shares and securities) and includes all materials, commodities, and articles (including these to be used in the fitting out, improvement or repair of movable property), and all growing crops grass or things attached to, or forming part of the land which are agree to be severed before sale or under the contract of sale, "8. Section 4 of the Tamil Nadu Act lays down:"4. Tax in respect of declared goods. Notwithstanding anything contained in Section 3, the tax under this Act shall be payable by a dealer or the sale or purchase inside the State of declared goods at the rate and only at the point specified against each in the Second Schedule on the turn over in such good s in each year, whatever be the quantum of turnover in that year".Item 4 of the second schedule specifies the rates of tax in accordance with the Central Act. It reproduces Section 14(iv) of the Central Act. On an amendment of Section 14(iv) of the Central Act, serial No. 4 of the second schedule of the Tamil Nadu Act was also correspondingly amended so as to reproduce the sixteen items found in Section 14(iv) of the Central Act. Hence, the decision of these cases really depends on an interpretation of Section 14 of the Central Act which we have already given above. Other provisions only fortify our conclusion.9.
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It is true that the question whether goods to be taxed have been subjected to a manufacturing process so as to produce a new market able commodity, is the decisive test in determining whether an excise duty is leviable or not on certain goods. No doubt, in the law dealing with the sales tax, the taxable event is the sale and not the manufacture of goods. Nevertheless, if the question is whether a new commercial commodity has come into existence or not, so that its sale is a new taxable event, in the Sales Tax law, it may also become necessary to consider whether a manufacturing process, which has altered the identity of the commercial commodity, has taken place. The law of sale tax is also concerned with "goods" of various descriptions. It, therefore, become s necessary to determine when they cease to be goods of one taxable description and become those of a commercially different category and description.It appears to us that the position has been simplified by the amendment of the law, as indicated above, so that each of the categories falling under "Iron and Steel" constitutes a new species of commercial commodity more clearly new. It follows that when one commercial commodity is transformed into another, it becomes a separate commodity for purposes of salesthink that the Madras High Court had committed an error in applying Hiralals case (supra) to the decision of cases now before us which turns really on a correct interpretation of Section 14 of the Central Act. On the question now before us, we approve of the reasoning adopted by a Division Bench of the Punjab High Court in Devgun Iron &Steel Rolling Mills v. State of Punjab((1961) 12 S.T. C. p.15 of the Central Act places certain restrictions and conditions upon State enactments imposing Sales4 of the second schedule specifies the rates of tax in accordance with the Central Act. It reproduces Section 14(iv) of the Central Act. On an amendment of Section 14(iv) of the Central Act, serial No. 4 of the second schedule of the Tamil Nadu Act was also correspondingly amended so as to reproduce the sixteen items found in Section 14(iv) of the Central Act. Hence, the decision of these cases really depends on an interpretation of Section 14 of the Central Act which we have already given above. Other provisions only fortify our conclusion.think that the Madras High Court had committed an error in applying Hiralals case (supra) to the decision of cases now before us which turns really on a correct interpretation of Section 14 of the Central Act. On the question now before us, we approve of the reasoning adopted by a Division Bench of the Punjab High Court in Devgun Iron &Steel Rolling Mills v. State of Punjab((1961) 12 S.T. C. p.is true that the question whether goods to be taxed have been subjected to a manufacturing process so as to produce a new market able commodity, is the decisive test in determining whether an excise duty is leviable or not on certain goods. No doubt, in the law dealing with the sales tax, the taxable event is the sale and not the manufacture of goods. Nevertheless, if the question is whether a new commercial commodity has come into existence or not, so that its sale is a new taxable event, in the Sales Tax law, it may also become necessary to consider whether a manufacturing process, which has altered the identity of the commercial commodity, has taken place. The law of sale tax is also concerned with "goods" of various descriptions. It, therefore, become s necessary to determine when they cease to be goods of one taxable description and become those of a commercially different category and description.It appears to us that the position has been simplified by the amendment of the law, as indicated above, so that each of the categories falling under "Iron and Steel" constitutes a new species of commercial commodity more clearly new. It follows that when one commercial commodity is transformed into another, it becomes a separate commodity for purposes of sales4 of the second schedule specifies the rates of tax in accordance with the Central Act. It reproduces Section 14(iv) of the Central Act. On an amendment of Section 14(iv) of the Central Act, serial No. 4 of the second schedule of the Tamil Nadu Act was also correspondingly amended so as to reproduce the sixteen items found in Section 14(iv) of the Central Act. Hence, the decision of these cases really depends on an interpretation of Section 14 of the Central Act which we have already given above. Other provisions only fortify our conclusion.
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Gopal Shrinivasan Vs. National Spot Exchange Limited & Others | In the legal position as a Company stands, the Directors of the Company would have no fiduciary or contractual duty towards a third party who deals with the company. However, as observed by us above,the present case is not a case which merely rests on the contractual terms but according to the plaintiffs, it is a collusion fraud and the defendants becoming beneficiaries of such acts. It is for these reasons, the normal role of a Director in the normal course, as canvassed on behalf of the defendant nos.14 and 15/Appellant would not become applicable in the facts of the present case. In considering such pleas, the facts and circumstances as borne out in the pleadings in each case are required to be considered so as to determine as to whether any cause of action is made out or otherwise before exercising power as conferred under Order 7 Rule 11(a) of C.P.C.45. The Appellants reliance on the decision of the Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. vs Neeta Bhalla & anr., (2005) 8 SCC 89 , is in support of their submission that merely because the Appellants were Directors of Defendant no.4 Company, there cannot be any monetary liability on the Directors and the liability would be of the company. The Supreme court observed that there is no universal rule that a Director of a company would be in-charge of its day-to-day affairs. However, the Supreme Court at the same time observed that as to what was the role of the Director of a Company is a question of fact depending on the peculiar facts in each case. This decision arose out of the proceedings initiated under sections 141, 138 of the Negotiable Instruments Act, 1881 and in that context, the Supreme Court had made these observations that to fasten a criminal liability a specific case should be spelt out in the complaint against the person who has sought to be made liable. Parameters of the pleadings in a criminal complaint case cannot be made applicable to the facts of the present case where the issue is under Order 7 Rule 11(a) and Order 1 Rule 10(2) of the Code of Civil Procedure.46. In the case of Mukesh Hans (supra) the learned Single Judge of the Delhi High Court was considering a case arising out of the decision of the trial Court decreeing a summary Suit against the Directors of a company incorporated under the Companies Act. The Company had failed to redeem the convertible debentures issued to the plaintiffs. The decision to issue these debentures was of the Board of Directors of the Company through whom the Company was acting. In these circumstances, the Court held that the directors cannot be held to be responsible when there was no assertion in the plaint that the Directors had undertaken to make payment to the plaintiffs of the loan amount on behalf of the company. There was no case made out for piercing of the corporate veil. Further if fraud was to be made the basis of the decree when the plaint did not have sufficient particulars in that regard. These being the facts this decision would not be applicable as in the present case there are allegations of fraud and connivance. The facts are peculiar as seen from the plaint. The Court cannot in applying the principles under Order 7 Rule 11(a) and Order 6 Rule 4, be unmindful of the enormity and the complexity of the cause as reflected in the plaint. This would not permit defendant nos.14 and 15 to justify their case under Order 7 Rule 11 to rely on this decision of the learned Single Judge of the Delhi High Court.47. In this context, the reliance on behalf of the learned Counsel for the Plaintiff on the decision of the learned Single Judge of the Delhi High Court in the case of "Deepak Ansal Vs. Ansal Properties and Industries Ltd. & Anr." (supra) and also the decision of the learned Single Judge of this Court in "Clarinda DSouza Vs. Mccann Erickson India Ltd." (supra) is well founded inasmuch as the Court would be required to consider all the averments in the plaint in relation to the reliefs as prayed for in the suit. In the present case as we have noted above there are sufficient averments for us to conclude that interference under the powers of the Court under Order 7 Rule 11(a) read with Order 1 Rule 10(2) is not warranted at this stage.48. In view of our above observations, the reliance in the decision of "Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponnoamman Educational Trust, (2012)8 SCC 706 " would also not assist the Appellants. We are in complete agreement with the contentions as urged on behalf of the Plaintiff/Respondent No.1 that the plaint has made out a cause of action against defendants Nos.14 and 15. The reliance on the part of the Plaintiff on the decision of the Supreme Court in the case "Sopan vs Assistant Charity Commissioner" (supra) in support of the proposition that the intention of the party concerned is to be gathered primarily from its tenor and terms of the pleadings taken as a whole and no pedantic approach should be adopted to defeat justice on hair-spitting technicalities, is well founded.49. We may thus observe that the plaint in the present case contains a statement of all the material circumstances constituting fraud. It is trite law that an application under Order 7 Rule 11 read with Order 1 Rule 10(2) can be moved at any stage of the suit. We are not persuaded to form an opinion at this stage that the averments made in the plaint are thus not sufficient for the purpose of seeking relief as claimed in the suit against Defendant nos.14 and 15. It also cannot be overlooked that some facts are within the special knowledge of these defendants. These facts cannot be expected to be pleaded by the Plaintiffs. | 0[ds]23. Having perused the plaint, we have noted above the relevant averments in the context of the issues as arising in the present appeal. The averments in the plaint indicate that this is a composite suit where the plaintiff has sought reliefs of recovery of the money claimed against the defendants on contract as also by way of damages being a liability under the torts. This is clear from several averments of connivance between the defendants and the joint and several liability arising for payment as claimed by the Plaintiffs in making the suit claim.41. Thus, the approach of the Appellants/defendants in reading of the plaint, in our view, is not correct. As the pleadings are not to be strictly interpreted in the manner in which the each and every allegations is brought out in the plaint, what is necessary is to plead all material and relevant facts on which the case of the Plaintiff would stand. Also in Ramswaroop Gupta Vs. Bishun NarayanAnr., AIR 1987 SC 1242 " (Read) their Lordships have observed that the pleadings should receive a liberal construction, no pedantic approach should be adopted to defeat justice ontechnicalities. It is held that whenever the question about lack of pleadings is raised, the enquiry should not be so much about the form of the pleadings but the endeavour of the Court should be to ascertain the substance of the pleadings. In ascertaining whether the plaint shows cause of action, the Court is not required to elaborate the inquiry in the doubtful or complicated question of law and fact. The endeavour of the Court would be to ascertain whether on the allegations a cause of action is shown and so long as the plaint discloses the same cause of action, and so raises a question, fit to be decided by a Judge. Order 7 Rule 11(a) of C.P.C. though would confer a power on the Court to reject a plaint on failure on the part of the Plaintiff to disclose a cause of action, but such power should not be exercised when averments made in the plaint and the documents upon which the reliance has been placed would disclose a cause of action.42. As regards the contention as urged on behalf of defendant nos.14 and 15 that there is no cause of action against Defendant Nos.14 and 15, inasmuch as this suit is based on a contract between the plaintiff and Defendant Nos.1 and that the relief which is being sought against Defendant Nos.14 and 15 is on tort and that such a relief cannot be claimed against Defendant Nos.14 and 15 in a suit on the basis of a contract. This submission on behalf of the Appellants is not well founded. In our view, the suit is properly framed and there is noof causes of action. On a careful reading of the plaint what we may note that the suit clearly falls within the provisions of Order 1 Rule 3 of C.P.C. as the reliefs arise out of a case of a breach of the contract as against Defendant No.1 and in tort against the other defendants which right to relief was available to the plaintiffs. Order 1 Rule 3 is not confined to joinder of parties above but would also encompass joinder of causes of action. A conjoint reading of Order 1 Rule 3 and Order 2 Rule 3 of C.P.C. would indicate that it is permissible to join different causes of action against the different defendants in one suit. A holistic reading of the plaint in the present case indicate that the plaintiff has sought reliefs against the defendants which arise out of the transaction which would involve not only Defendant Nos.1 to 4 but also the other defendants which includes Defendant Nos.14 and 15 and accordingly, they can be joined, jointly and/or severally in the alternative in one and the same suit. The requirement of Order 1 Rule 3, therefore, would stand satisfied read with the provisions of Order 2 Rule 3 which would permit joinder of causes of action. It was, therefore, permissible for Plaintiffs to join causes of action on the plea of breach of contract which is against Defendant No.1 In taking this view, we are also supported by the decision of the Division Bench of Calcutta High Court in the case "Shew Narayan Singh Vs. Brahmanand SinghOrs., (AIR 1950 Calcutta 479)" in which their Lordships have observed thus:18.The last argument on behalf of the petitioner may be stated thus. The cause of action against the original defendant is based on contract while the cause of action against the other defendants is based on tort. Causes of action so differently based cannot be joined. I am not prepared to accept this view. There is nothing in the provisions of the Code of Civil Procedure which supports it. As pointed out above the Code permits a joinder of different causes of action against different defendants. The fact that so far as the different defendants are concerned, their liability arises out of their different legal relationships with the plaintiff would not, in my opinion, bar this suit and drive the plaintiff to institute separate suits. Order 1 R.3 and O.2 R.4 are directed towards avoiding multiplicity of litigation. What would be the result of giving effect to the view propounded / The plaintiff would first have to institute a suit, against defendant 1 alone and establish a breach of contract. If he succeeded in so doing, he would then have to institute another suit against defendant 1 and the added defendants and again establish, first, the breach of the contract because the other defendants not being parties to first suit would not be bound by any decision arrived at therein; he would also have to establish conspiracy. It may be that in the second suit the added defendants may succeed in showing that there was no breach of contract. This would lead to conflicting decision on the same issue. It is to avoid such anomalies and inconsistencies that the Code has provided that one suit is permissible.It is true that the claim against defendant 1 is based on the breach of a contractual right while the claim against the other defendants is based on the breach of a common law right, but the right to relief is available in respect of both sets of defendants because the contractual right has been infringed. If it had not been infringed no question of tort would arise. In such a case one suit against all is in my opinion permissible. This view has been taken by a Special Bench of the High Court at Rangoon in the case of P.B.Boss V. M.B.N. Chettyar Fir, AIR (25) 1938 Rang 185 at p.188: (1938 Rang LJ 303 S.B.) Dankley,J. Observes :"The learned Judge appears to have thought that there was aof defendants in the original suit, and that a decree based on a breach of contract against one defendant and a decree of damages in tort against another defendant cannot be made in the same suit. With the greatest respect, this is a misconception of the law. There was noof defendants in this case; the provisions of O.1 R.3, Civil P.C., cover the joinder of the three defendants in the suit in the Township Court. There is no reason why a decree for damages for breach of contract against one defendant and a decree for damages in tort against another defendant should not be pased in the same action; in R.T.Grant V. Australian Knitting Mills Ltd., (1936)AC 85 : (AIR (23)1936 PC 34) the Privy Council madea decree against the retailer of the underwear for breach of contract and against the manufacturer of the underwear in tort."The Privy Council decision is R.T. Grant V. Australian Knitting Mills Ltd., and it is also reported in AIR (23) 1936 PC 34. The Privy Council upheld a decision of the Australian Court awarding damages in the same suit against a retailer for breach of contrast and against the manufacturer for the negligence of tort. I would refer to p.39 of the report where the Lordship said:"The liability of each respondent depends on a different cause of action though it is for the same damage. It is not claimed that the appellant should recover his damage twice over."The claim against both retailer and manufacturer was upheld.This principle would apply to the present case.""19. I would also refer to the case of Frankenburg V. Great Horseless Carriage Co. (1900)1 QB 504 at p.509: (69 LJ QB 147) where the Court of Appeal refused to give effect to a similar technical objection. They said:"In substance the shareholder had one grievance. Call its cause of action or what you like, and in substance he has cue complaint and all the persons he sues have, according to him been guilty of conduct which gives him a right to relief in respect of that one thing which they have done, namely, the issuing of a prospectus." The position here is the same. The plaintiff has one grievance viz. That the contract has been broken and he alleges that all the defendants have joined or conspired together in causing this breach. I can see no reason why one suit against all should not be allowed."43. Further in this context on behalf of the Appellants the reliance on the decision in Rajkot Municipal Corporation vs Manjulaben Jayantilal NakumOrs. (1997) 9 SCC 552 , would not assist Defendant Nos.14 and 15. In this case the Respondent Manjulaben had filed a Suit, claiming damages against the Municipal Corporation on the ground that the Municipal Corporation had failed in its statutory duty to check the healthy condition of trees, as her husband had died by falling of a a tree which, according to Majulaben was not maintained in a healthy condition by the Municipal Corporation. It was her claim that the statutory duty of the corporation gave rise to a tortuous liability. In this context, the Suit filed by Manjulaben was decreed by the trial Court for a sum of Rs.The decree was confirmed by the Division Bench in appeal. In this context, the Supreme Court in paragraph 10 of this decision made observations that tort and contract are distinguishable. It was observed that in tort, liability is primarily fixed by law while in contract further observed that if the claim depends upon proof of the contract, action does not lie in tort and if the claim arises, from the relationship between the parties, independent of the contract, an action would lie in tort at the election of the Plaintiff although he might alternatively have pleaded in contract. In our opinion, this decision would certainly not avail to the benefit of the Appellant as these observations of the Supreme Court itself make it clear that even if a claim between the parties arises independent of a contract still an action would lie in tort at the election of the Plaintiff. In the present case, the Plaintiffs suit against Defendant no.1 may be on contract nonetheless, the Plaintiff could very well maintained his suit against the Appellant/Defendant Nos.14 and 15 diverse the contractual relations between the parties.44. This takes us to the other issue as urged on behalf of Defendant Nos.14 and 15 that they do not become personally responsible for the acts of the Company. In this regard reliance is placed on behalf of Defendant Nos.14 and 15 on the decision of the learned Single Judge of Delhi High Court in the case "Tristar Consultants vs Customer Services India Pvt.Ltd.Anr., 2007 Delhi 157". There cannot be a dispute on the proposition as contained in paragraph 19 to 23 of the decision that individual Director would have no power to act on behalf of the company of which he is a Director unless so authorised. In the legal position as a Company stands, the Directors of the Company would have no fiduciary or contractual duty towards a third party who deals with the company. However, as observed by us above,the present case is not a case which merely rests on the contractual terms but according to the plaintiffs, it is a collusion fraud and the defendants becoming beneficiaries of such acts. It is for these reasons, the normal role of a Director in the normal course, as canvassed on behalf of the defendant nos.14 and 15/Appellant would not become applicable in the facts of the present case. In considering such pleas, the facts and circumstances as borne out in the pleadings in each case are required to be considered so as to determine as to whether any cause of action is made out or otherwise before exercising power as conferred under Order 7 Rule 11(a) of C.P.C.45. The Appellants reliance on the decision of the Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. vs Neeta Bhallaanr., (2005) 8 SCC 89 , is in support of their submission that merely because the Appellants were Directors of Defendant no.4 Company, there cannot be any monetary liability on the Directors and the liability would be of the company. The Supreme court observed that there is no universal rule that a Director of a company would beday affairs. However, the Supreme Court at the same time observed that as to what was the role of the Director of a Company is a question of fact depending on the peculiar facts in each case. This decision arose out of the proceedings initiated under sections 141, 138 of the Negotiable Instruments Act, 1881 and in that context, the Supreme Court had made these observations that to fasten a criminal liability a specific case should be spelt out in the complaint against the person who has sought to be made liable. Parameters of the pleadings in a criminal complaint case cannot be made applicable to the facts of the present case where the issue is under Order 7 Rule 11(a) and Order 1 Rule 10(2) of the Code of Civil Procedure.46. In the case of Mukesh Hans (supra) the learned Single Judge of the Delhi High Court was considering a case arising out of the decision of the trial Court decreeing a summary Suit against the Directors of a company incorporated under the Companies Act. The Company had failed to redeem the convertible debentures issued to the plaintiffs. The decision to issue these debentures was of the Board of Directors of the Company through whom the Company was acting. In these circumstances, the Court held that the directors cannot be held to be responsible when there was no assertion in the plaint that the Directors had undertaken to make payment to the plaintiffs of the loan amount on behalf of the company. There was no case made out for piercing of the corporate veil. Further if fraud was to be made the basis of the decree when the plaint did not have sufficient particulars in that regard. These being the facts this decision would not be applicable as in the present case there are allegations of fraud and connivance. The facts are peculiar as seen from the plaint. The Court cannot in applying the principles under Order 7 Rule 11(a) and Order 6 Rule 4, be unmindful of the enormity and the complexity of the cause as reflected in the plaint. This would not permit defendant nos.14 and 15 to justify their case under Order 7 Rule 11 to rely on this decision of the learned Single Judge of the Delhi High Court.47. In this context, the reliance on behalf of the learned Counsel for the Plaintiff on the decision of the learned Single Judge of the Delhi High Court in the case of "Deepak Ansal Vs. Ansal Properties and Industries Ltd.Anr." (supra) and also the decision of the learned Single Judge of this Court in "Clarinda DSouza Vs. Mccann Erickson India Ltd." (supra) is well founded inasmuch as the Court would be required to consider all the averments in the plaint in relation to the reliefs as prayed for in the suit. In the present case as we have noted above there are sufficient averments for us to conclude that interference under the powers of the Court under Order 7 Rule 11(a) read with Order 1 Rule 10(2) is not warranted at this stage.48. In view of our above observations, the reliance in the decision of "Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponnoamman Educational Trust, (2012)8 SCC 706 " would also not assist the Appellants. We are in complete agreement with the contentions as urged on behalf of the Plaintiff/Respondent No.1 that the plaint has made out a cause of action against defendants Nos.14 and 15. The reliance on the part of the Plaintiff on the decision of the Supreme Court in the case "Sopan vs Assistant Charity Commissioner" (supra) in support of the proposition that the intention of the party concerned is to be gathered primarily from its tenor and terms of the pleadings taken as a whole and no pedantic approach should be adopted to defeat justice ontechnicalities, is well founded.49. We may thus observe that the plaint in the present case contains a statement of all the material circumstances constituting fraud. It is trite law that an application under Order 7 Rule 11 read with Order 1 Rule 10(2) can be moved at any stage of the suit. We are not persuaded to form an opinion at this stage that the averments made in the plaint are thus not sufficient for the purpose of seeking relief as claimed in the suit against Defendant nos.14 and 15. It also cannot be overlooked that some facts are within the special knowledge of these defendants. These facts cannot be expected to be pleaded by the Plaintiffs. | 0 | 14,720 | 3,248 | ### Instruction:
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In the legal position as a Company stands, the Directors of the Company would have no fiduciary or contractual duty towards a third party who deals with the company. However, as observed by us above,the present case is not a case which merely rests on the contractual terms but according to the plaintiffs, it is a collusion fraud and the defendants becoming beneficiaries of such acts. It is for these reasons, the normal role of a Director in the normal course, as canvassed on behalf of the defendant nos.14 and 15/Appellant would not become applicable in the facts of the present case. In considering such pleas, the facts and circumstances as borne out in the pleadings in each case are required to be considered so as to determine as to whether any cause of action is made out or otherwise before exercising power as conferred under Order 7 Rule 11(a) of C.P.C.45. The Appellants reliance on the decision of the Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. vs Neeta Bhalla & anr., (2005) 8 SCC 89 , is in support of their submission that merely because the Appellants were Directors of Defendant no.4 Company, there cannot be any monetary liability on the Directors and the liability would be of the company. The Supreme court observed that there is no universal rule that a Director of a company would be in-charge of its day-to-day affairs. However, the Supreme Court at the same time observed that as to what was the role of the Director of a Company is a question of fact depending on the peculiar facts in each case. This decision arose out of the proceedings initiated under sections 141, 138 of the Negotiable Instruments Act, 1881 and in that context, the Supreme Court had made these observations that to fasten a criminal liability a specific case should be spelt out in the complaint against the person who has sought to be made liable. Parameters of the pleadings in a criminal complaint case cannot be made applicable to the facts of the present case where the issue is under Order 7 Rule 11(a) and Order 1 Rule 10(2) of the Code of Civil Procedure.46. In the case of Mukesh Hans (supra) the learned Single Judge of the Delhi High Court was considering a case arising out of the decision of the trial Court decreeing a summary Suit against the Directors of a company incorporated under the Companies Act. The Company had failed to redeem the convertible debentures issued to the plaintiffs. The decision to issue these debentures was of the Board of Directors of the Company through whom the Company was acting. In these circumstances, the Court held that the directors cannot be held to be responsible when there was no assertion in the plaint that the Directors had undertaken to make payment to the plaintiffs of the loan amount on behalf of the company. There was no case made out for piercing of the corporate veil. Further if fraud was to be made the basis of the decree when the plaint did not have sufficient particulars in that regard. These being the facts this decision would not be applicable as in the present case there are allegations of fraud and connivance. The facts are peculiar as seen from the plaint. The Court cannot in applying the principles under Order 7 Rule 11(a) and Order 6 Rule 4, be unmindful of the enormity and the complexity of the cause as reflected in the plaint. This would not permit defendant nos.14 and 15 to justify their case under Order 7 Rule 11 to rely on this decision of the learned Single Judge of the Delhi High Court.47. In this context, the reliance on behalf of the learned Counsel for the Plaintiff on the decision of the learned Single Judge of the Delhi High Court in the case of "Deepak Ansal Vs. Ansal Properties and Industries Ltd. & Anr." (supra) and also the decision of the learned Single Judge of this Court in "Clarinda DSouza Vs. Mccann Erickson India Ltd." (supra) is well founded inasmuch as the Court would be required to consider all the averments in the plaint in relation to the reliefs as prayed for in the suit. In the present case as we have noted above there are sufficient averments for us to conclude that interference under the powers of the Court under Order 7 Rule 11(a) read with Order 1 Rule 10(2) is not warranted at this stage.48. In view of our above observations, the reliance in the decision of "Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponnoamman Educational Trust, (2012)8 SCC 706 " would also not assist the Appellants. We are in complete agreement with the contentions as urged on behalf of the Plaintiff/Respondent No.1 that the plaint has made out a cause of action against defendants Nos.14 and 15. The reliance on the part of the Plaintiff on the decision of the Supreme Court in the case "Sopan vs Assistant Charity Commissioner" (supra) in support of the proposition that the intention of the party concerned is to be gathered primarily from its tenor and terms of the pleadings taken as a whole and no pedantic approach should be adopted to defeat justice on hair-spitting technicalities, is well founded.49. We may thus observe that the plaint in the present case contains a statement of all the material circumstances constituting fraud. It is trite law that an application under Order 7 Rule 11 read with Order 1 Rule 10(2) can be moved at any stage of the suit. We are not persuaded to form an opinion at this stage that the averments made in the plaint are thus not sufficient for the purpose of seeking relief as claimed in the suit against Defendant nos.14 and 15. It also cannot be overlooked that some facts are within the special knowledge of these defendants. These facts cannot be expected to be pleaded by the Plaintiffs.
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which he is a Director unless so authorised. In the legal position as a Company stands, the Directors of the Company would have no fiduciary or contractual duty towards a third party who deals with the company. However, as observed by us above,the present case is not a case which merely rests on the contractual terms but according to the plaintiffs, it is a collusion fraud and the defendants becoming beneficiaries of such acts. It is for these reasons, the normal role of a Director in the normal course, as canvassed on behalf of the defendant nos.14 and 15/Appellant would not become applicable in the facts of the present case. In considering such pleas, the facts and circumstances as borne out in the pleadings in each case are required to be considered so as to determine as to whether any cause of action is made out or otherwise before exercising power as conferred under Order 7 Rule 11(a) of C.P.C.45. The Appellants reliance on the decision of the Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. vs Neeta Bhallaanr., (2005) 8 SCC 89 , is in support of their submission that merely because the Appellants were Directors of Defendant no.4 Company, there cannot be any monetary liability on the Directors and the liability would be of the company. The Supreme court observed that there is no universal rule that a Director of a company would beday affairs. However, the Supreme Court at the same time observed that as to what was the role of the Director of a Company is a question of fact depending on the peculiar facts in each case. This decision arose out of the proceedings initiated under sections 141, 138 of the Negotiable Instruments Act, 1881 and in that context, the Supreme Court had made these observations that to fasten a criminal liability a specific case should be spelt out in the complaint against the person who has sought to be made liable. Parameters of the pleadings in a criminal complaint case cannot be made applicable to the facts of the present case where the issue is under Order 7 Rule 11(a) and Order 1 Rule 10(2) of the Code of Civil Procedure.46. In the case of Mukesh Hans (supra) the learned Single Judge of the Delhi High Court was considering a case arising out of the decision of the trial Court decreeing a summary Suit against the Directors of a company incorporated under the Companies Act. The Company had failed to redeem the convertible debentures issued to the plaintiffs. The decision to issue these debentures was of the Board of Directors of the Company through whom the Company was acting. In these circumstances, the Court held that the directors cannot be held to be responsible when there was no assertion in the plaint that the Directors had undertaken to make payment to the plaintiffs of the loan amount on behalf of the company. There was no case made out for piercing of the corporate veil. Further if fraud was to be made the basis of the decree when the plaint did not have sufficient particulars in that regard. These being the facts this decision would not be applicable as in the present case there are allegations of fraud and connivance. The facts are peculiar as seen from the plaint. The Court cannot in applying the principles under Order 7 Rule 11(a) and Order 6 Rule 4, be unmindful of the enormity and the complexity of the cause as reflected in the plaint. This would not permit defendant nos.14 and 15 to justify their case under Order 7 Rule 11 to rely on this decision of the learned Single Judge of the Delhi High Court.47. In this context, the reliance on behalf of the learned Counsel for the Plaintiff on the decision of the learned Single Judge of the Delhi High Court in the case of "Deepak Ansal Vs. Ansal Properties and Industries Ltd.Anr." (supra) and also the decision of the learned Single Judge of this Court in "Clarinda DSouza Vs. Mccann Erickson India Ltd." (supra) is well founded inasmuch as the Court would be required to consider all the averments in the plaint in relation to the reliefs as prayed for in the suit. In the present case as we have noted above there are sufficient averments for us to conclude that interference under the powers of the Court under Order 7 Rule 11(a) read with Order 1 Rule 10(2) is not warranted at this stage.48. In view of our above observations, the reliance in the decision of "Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponnoamman Educational Trust, (2012)8 SCC 706 " would also not assist the Appellants. We are in complete agreement with the contentions as urged on behalf of the Plaintiff/Respondent No.1 that the plaint has made out a cause of action against defendants Nos.14 and 15. The reliance on the part of the Plaintiff on the decision of the Supreme Court in the case "Sopan vs Assistant Charity Commissioner" (supra) in support of the proposition that the intention of the party concerned is to be gathered primarily from its tenor and terms of the pleadings taken as a whole and no pedantic approach should be adopted to defeat justice ontechnicalities, is well founded.49. We may thus observe that the plaint in the present case contains a statement of all the material circumstances constituting fraud. It is trite law that an application under Order 7 Rule 11 read with Order 1 Rule 10(2) can be moved at any stage of the suit. We are not persuaded to form an opinion at this stage that the averments made in the plaint are thus not sufficient for the purpose of seeking relief as claimed in the suit against Defendant nos.14 and 15. It also cannot be overlooked that some facts are within the special knowledge of these defendants. These facts cannot be expected to be pleaded by the Plaintiffs.
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Tarlochan Dev Sharma Vs. State of Punjab | there was nothing wrong in his asking the Executive Officer not to make the payment unless he was satisfied that the machine was fit for the purpose for which it was being purchased, all the more, when the funds for purchasing the machine were made available to the Municipality by the District Planning Board. Even accepting the allegations made against the appellant, as contained in the show cause notice, to be correct, his decision to withhold the payment may be said to be an erroneous or unjust decision. For this reason alone the appellant cannot be said to be guilty of an abuse of his powers. If any one suffered by delay in payment it was the supplier and not the Municipality. There is nothing in the show cause notice or the ultimate order to hold how the act of appellant had `obstructed the working of Municipal Council or was `against the interest of Council. We are, therefore, clearly of the opinion that not only the principles of natural justice were violated by the factum of the impugned order having been founded on grounds at variance from the one is the show cause notice, of which appellant was not even made aware of let alone provided an opportunity to offer his explanation, the allegations made against the appellant did not even prima facie make out a case of abuse of powers of President. The High Court was not right in forming an opinion that the appellant was persuading the High Court to judicially review like an Appellate Court the finding arrived at by the competent authority. The present one is a case where the impugned order is vitiated by perversity. A conclusion of abuse of powers has been drawn from such facts wherefrom such conclusion does not even prima facie flow. The impugned order is based on non-existent grounds. It is vitiated by colourable exercise of power and hence liable to be struck down within the well settled parameters of judicial review of administrative action. 13. Although the appellant tried to suggest a case of mala fides and colourable exercise of power by stating a few facts and inviting a finding that impugned order was passed with an ulterior motive in as much as the appellants election to the office of the President did not suit the power that be and the political bosses of Shri N.K. Arora, the then Principal Secretary, Department of Local Government, State of Punjab, however, we are not entering into that question as it is unnecessary and also be cause adequate material has not been brought on record and placed before the court so as to undoubtedly arrive at such a finding. However, something has to be said about Shri N.K. Arora, Principal Secretary, who initiated the action, heard the appellant and passed the impugned order of removal dated 1.10.1999. 14. It is interesting to view the present day bureaucrat-politician relationship scenario. A bureaucratic apparatus is a means of attaining the goals prescribed by the political leaders at the top. Like Alladins lamp, it serves the interest of whosoever wields it. Those at the helm of affairs exercise apical dominance by dint of their political legitimacy.,....... The ministers make strategic decisions. The officers provide trucks, petrol and drivers. They give march orders. The minister tells them were to go. The officers have to act upon instructions from above without creating a fuss about it. (Effectiveness of Bureaucracy, The Indian Journal of Public Administration, April-June 2000 at p. 165). 15. In the system of India Democratic Governance as contemplated by the Constitution senior officers occupying key positions such as Secretaries are not supposed to mortgage there now discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja, 1995(5) SCC 302, this court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this court in The Purtabpur Company Ltd., AIR 1970 SC 1896 , are instructive and apposite. Executive officers may in exercise of their statutory discretions take into account considerations of public policy and in some context policy of Minister or the Government as a whole when it is a relevant factor is weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. The manner in which the power under Section 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the least what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave at that and say no more on this issue. | 1[ds]We are, therefore, clearly of the opinion that not only the principles of natural justice were violated by the factum of the impugned order having been founded on grounds at variance from the one is the show cause notice, of which appellant was not even made aware of let alone provided an opportunity to offer his explanation, the allegations made against the appellant did not even prima facie make out a case of abuse of powers of President. The High Court was not right in forming an opinion that the appellant was persuading the High Court to judicially review like an Appellate Court the finding arrived at by the competent authority. The present one is a case where the impugned order is vitiated by perversity. A conclusion of abuse of powers has been drawn from such facts wherefrom such conclusion does not even prima facie flow. The impugned order is based ont grounds. It is vitiated by colourable exercise of power and hence liable to be struck down within the well settled parameters of judicial review of administrative action15. In the system of India Democratic Governance as contemplated by the Constitution senior officers occupying key positions such as Secretaries are not supposed to mortgage there now discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja, 1995(5) SCC 302, this court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this court in The Purtabpur Company Ltd., AIR 1970 SC 1896 , are instructive and apposite. Executive officers may in exercise of their statutory discretions take into account considerations of public policy and in some context policy of Minister or the Government as a whole when it is a relevant factor is weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays uttern of mind to the facts of the case and the relevant law. The manner in which the power under Section 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the least what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave at that and say no more on this issue. | 1 | 4,777 | 631 | ### Instruction:
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### Input:
there was nothing wrong in his asking the Executive Officer not to make the payment unless he was satisfied that the machine was fit for the purpose for which it was being purchased, all the more, when the funds for purchasing the machine were made available to the Municipality by the District Planning Board. Even accepting the allegations made against the appellant, as contained in the show cause notice, to be correct, his decision to withhold the payment may be said to be an erroneous or unjust decision. For this reason alone the appellant cannot be said to be guilty of an abuse of his powers. If any one suffered by delay in payment it was the supplier and not the Municipality. There is nothing in the show cause notice or the ultimate order to hold how the act of appellant had `obstructed the working of Municipal Council or was `against the interest of Council. We are, therefore, clearly of the opinion that not only the principles of natural justice were violated by the factum of the impugned order having been founded on grounds at variance from the one is the show cause notice, of which appellant was not even made aware of let alone provided an opportunity to offer his explanation, the allegations made against the appellant did not even prima facie make out a case of abuse of powers of President. The High Court was not right in forming an opinion that the appellant was persuading the High Court to judicially review like an Appellate Court the finding arrived at by the competent authority. The present one is a case where the impugned order is vitiated by perversity. A conclusion of abuse of powers has been drawn from such facts wherefrom such conclusion does not even prima facie flow. The impugned order is based on non-existent grounds. It is vitiated by colourable exercise of power and hence liable to be struck down within the well settled parameters of judicial review of administrative action. 13. Although the appellant tried to suggest a case of mala fides and colourable exercise of power by stating a few facts and inviting a finding that impugned order was passed with an ulterior motive in as much as the appellants election to the office of the President did not suit the power that be and the political bosses of Shri N.K. Arora, the then Principal Secretary, Department of Local Government, State of Punjab, however, we are not entering into that question as it is unnecessary and also be cause adequate material has not been brought on record and placed before the court so as to undoubtedly arrive at such a finding. However, something has to be said about Shri N.K. Arora, Principal Secretary, who initiated the action, heard the appellant and passed the impugned order of removal dated 1.10.1999. 14. It is interesting to view the present day bureaucrat-politician relationship scenario. A bureaucratic apparatus is a means of attaining the goals prescribed by the political leaders at the top. Like Alladins lamp, it serves the interest of whosoever wields it. Those at the helm of affairs exercise apical dominance by dint of their political legitimacy.,....... The ministers make strategic decisions. The officers provide trucks, petrol and drivers. They give march orders. The minister tells them were to go. The officers have to act upon instructions from above without creating a fuss about it. (Effectiveness of Bureaucracy, The Indian Journal of Public Administration, April-June 2000 at p. 165). 15. In the system of India Democratic Governance as contemplated by the Constitution senior officers occupying key positions such as Secretaries are not supposed to mortgage there now discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja, 1995(5) SCC 302, this court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this court in The Purtabpur Company Ltd., AIR 1970 SC 1896 , are instructive and apposite. Executive officers may in exercise of their statutory discretions take into account considerations of public policy and in some context policy of Minister or the Government as a whole when it is a relevant factor is weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. The manner in which the power under Section 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the least what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave at that and say no more on this issue.
### Response:
1
### Explanation:
We are, therefore, clearly of the opinion that not only the principles of natural justice were violated by the factum of the impugned order having been founded on grounds at variance from the one is the show cause notice, of which appellant was not even made aware of let alone provided an opportunity to offer his explanation, the allegations made against the appellant did not even prima facie make out a case of abuse of powers of President. The High Court was not right in forming an opinion that the appellant was persuading the High Court to judicially review like an Appellate Court the finding arrived at by the competent authority. The present one is a case where the impugned order is vitiated by perversity. A conclusion of abuse of powers has been drawn from such facts wherefrom such conclusion does not even prima facie flow. The impugned order is based ont grounds. It is vitiated by colourable exercise of power and hence liable to be struck down within the well settled parameters of judicial review of administrative action15. In the system of India Democratic Governance as contemplated by the Constitution senior officers occupying key positions such as Secretaries are not supposed to mortgage there now discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja, 1995(5) SCC 302, this court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this court in The Purtabpur Company Ltd., AIR 1970 SC 1896 , are instructive and apposite. Executive officers may in exercise of their statutory discretions take into account considerations of public policy and in some context policy of Minister or the Government as a whole when it is a relevant factor is weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays uttern of mind to the facts of the case and the relevant law. The manner in which the power under Section 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the least what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave at that and say no more on this issue.
|
Sri Dorairaj Spintex Vs. R Chittibabu & Ors | dispute before a tribunal. But it seems to have been felt that Section 33, as it stood before the amendment of 1956, was too stringent for it completely took away the right of the employer to make any alteration in the conditions of service or to make any order of discharge or dismissal without making any distinction as to whether such alteration or such an order of discharge or dismissal was in any manner connected with the dispute pending before an industrial authority. It seems to have been felt therefore that the stringency of the provision should be softened and the employer should be permitted to make changes in conditions of service etc. which were not connected with the dispute pending before an Industrial Tribunal. For the same reason it was felt that the authority of the employer to dismiss or discharge a workman should not be completely taken away where the dismissal or discharge was dependent on matters unconnected with the dispute pending before any tribunal. At the same time it seems to have been felt that some safeguards should be provided for a workman who may be discharged or dismissed during the pendency of a dispute on account of some matter unconnected with the dispute. Consequently Section 33 was redrafted in 1956 and considerably expanded. It is now in five sub-sections while before 1956 it consisted practically of what is now sub-section (1). This decision was also confirmed by a Constitution Bench of this Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd v. Ram Gopal Sharma and Ors. AIR 2002 SC 643 . These provisions have been interpreted in several decisions of this Court including Chartered Bank, Bombay v. Chartered Bank Employees Union (1960) 3 SCR 441 ; Tata Oil Mills Co. Ltd v. Workmen (1964) 7 SCR 555 ; PD Sharma v. State Bank of India (1968) 3 SCR 91 ; Air India Corporation v. Rebellow (1972) 1 SCC 814 ; Workmen of Sudder Office, Cinnamara v. Management of Sudder Office (1972) 4 SCC 746 ; and Mahendra Singh Dhantwal v. Hindustan Motors Ltd (1976) 4 SCC 606 . Where the termination for misconduct is not connected to the industrial dispute, Section 33(2)(b) recognizes the authority of the employer to initiate disciplinary action while at the same time imposing safeguards. They are intended to balance the disciplinary jurisdiction of the employer with the need to ensure that there is no victimization of the workmen. 12. In the present case, the order of the Assistant Commissioner of Labour takes note of the fact that initially a dispute was raised on 4 July 2002 by the workmen under Section 2(k) based on the following demands: 1. Passed (sic) on seniority in the spoiling unit, the workmen should be posted as sider and arya lifters 2. The monthly salary for the workmen working in the factory should be paid before 7th of the month 3. The workmen working in the factory shall be given hygienic drinking water 4. The women workmen working in the factory should be given two protective clothes to protect from the accident in every year. 13. The demand was received in the office of the Conciliation Officer and conciliation proceedings were in progress. The Union commenced a stay-in strike. Another dispute was raised on 1 August 2002 for the grant of permanency to the workmen in the factory and the conciliation proceedings were initiated on the demand. The management convened the disciplinary proceeding on the ground that the workmen had indulged in acts of vandalism involving the property of the employer. The disciplinary proceedings were convened for acts of vandalism involving the property of the employer. The misconduct for which the enquiry was convened had no connect with the demands by the workmen. In the first of the two conciliation proceedings, the demand of the workmen was for promotional avenues, the payment of monthly salary before the seventh day of each month, drinking water and protective clothing. In the second conciliation proceedings, the workmen had claimed the status of permanency. The disciplinary enquiry was held in respect of the acts of misconduct alleged to have been committed by the workmen involving the property of the employer. These dismissal for misconduct cannot be regarded as being connected to the dispute which was raised in conciliation, as noted above. The Assistant Commissioner of Labour came to the conclusion that the enquiry was conducted in accordance with the principles of natural justice and entered a finding of fact that there was no evidence to indicate that some of the workmen were protected workmen. The Assistant Commissioner of Labour also held that on 2 August 2002, a law and order problem had arisen as a result of which the management had initiated disciplinary proceedings. Nonetheless, the Assistant Commissioner of Labour came to the conclusion that once conciliation proceedings were initiated, prior approval under Section 33(1)(b) was necessary and this finding has been confirmed both by the Single Judge and the Division Bench of the High Court. In entering this finding, all the three fora have clearly lost sight of the distinction between sub-Section (1) and sub-Section (2) of Section 33 of the ID Act. The Single Judge noticed that the dismissal was for some other reason, yet held that Section 33 (1)(b) was attracted. There has been no independent application of mind by the Division Bench at all. 14. Once we have come to the conclusion that the action of dismissal for misconduct was not connected with the dispute which was pending in conciliation, the provisions of Section 33(2)(b) of the ID Act would stand attracted. There is no dispute about the fact that there was compliance of the provisions of Section 33(2)(b), nor is there a finding to the contrary. In this view of the matter, the order of the Assistant Commissioner of Labour was contrary to law and there was an error on the part of the Single Judge and the Division Bench in affirming the order. | 1[ds]The impact of the legislative change was noticed in a judgment of three judges of this Court in Strawboard Manufacturing Company Ltd. v. Govind (1962) Supp 3 SCR 618, Justice KN Wanchoo, speaking for the three judge Bench observed :3. Before however we turn to the interpretation of the proviso we may refer to the circumstances in which Section 33(2) came to be enacted. Originally there was no such provision like Section 33(2) in the Act and the only provision to be found therein corresponded to the present Section 33(1). The object behind enacting Section 33 as it was before the amendment of 1956 was to allow continuance of industrial proceedings pending before any authority prescribed by the Act in a calm and peaceful atmosphere undisturbed by any other industrial dispute. The plain object of the section was to maintain the status quo as far as possible during the pendency of any industrial dispute before a tribunal. But it seems to have been felt that Section 33, as it stood before the amendment of 1956, was too stringent for it completely took away the right of the employer to make any alteration in the conditions of service or to make any order of discharge or dismissal without making any distinction as to whether such alteration or such an order of discharge or dismissal was in any manner connected with the dispute pending before an industrial authority. It seems to have been felt therefore that the stringency of the provision should be softened and the employer should be permitted to make changes in conditions of service etc. which were not connected with the dispute pending before an Industrial Tribunal. For the same reason it was felt that the authority of the employer to dismiss or discharge a workman should not be completely taken away where the dismissal or discharge was dependent on matters unconnected with the dispute pending before any tribunal. At the same time it seems to have been felt that some safeguards should be provided for a workman who may be discharged or dismissed during the pendency of a dispute on account of some matter unconnected with the dispute. Consequently Section 33 was redrafted in 1956 and considerably expanded. It is now in five sub-sections while before 1956 it consisted practically of what is now sub-section (1).This decision was also confirmed by a Constitution Bench of this Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd v. Ram Gopal Sharma and Ors. AIR 2002 SC 643 . These provisions have been interpreted in several decisions of this Court including Chartered Bank, Bombay v. Chartered Bank Employees Union (1960) 3 SCR 441 ; Tata Oil Mills Co. Ltd v. Workmen (1964) 7 SCR 555 ; PD Sharma v. State Bank of India (1968) 3 SCR 91 ; Air India Corporation v. Rebellow (1972) 1 SCC 814 ; Workmen of Sudder Office, Cinnamara v. Management of Sudder Office (1972) 4 SCC 746 ; and Mahendra Singh Dhantwal v. Hindustan Motors Ltd (1976) 4 SCC 606 . Where the termination for misconduct is not connected to the industrial dispute, Section 33(2)(b) recognizes the authority of the employer to initiate disciplinary action while at the same time imposing safeguards. They are intended to balance the disciplinary jurisdiction of the employer with the need to ensure that there is no victimization of the workmen.13. The demand was received in the office of the Conciliation Officer and conciliation proceedings were in progress. The Union commenced a stay-in strike. Another dispute was raised on 1 August 2002 for the grant of permanency to the workmen in the factory and the conciliation proceedings were initiated on the demand. The management convened the disciplinary proceeding on the ground that the workmen had indulged in acts of vandalism involving the property of the employer. The disciplinary proceedings were convened for acts of vandalism involving the property of the employer. The misconduct for which the enquiry was convened had no connect with the demands by the workmen. In the first of the two conciliation proceedings, the demand of the workmen was for promotional avenues, the payment of monthly salary before the seventh day of each month, drinking water and protective clothing. In the second conciliation proceedings, the workmen had claimed the status of permanency. The disciplinary enquiry was held in respect of the acts of misconduct alleged to have been committed by the workmen involving the property of the employer. These dismissal for misconduct cannot be regarded as being connected to the dispute which was raised in conciliation, as noted above. The Assistant Commissioner of Labour came to the conclusion that the enquiry was conducted in accordance with the principles of natural justice and entered a finding of fact that there was no evidence to indicate that some of the workmen were protected workmen. The Assistant Commissioner of Labour also held that on 2 August 2002, a law and order problem had arisen as a result of which the management had initiated disciplinary proceedings. Nonetheless, the Assistant Commissioner of Labour came to the conclusion that once conciliation proceedings were initiated, prior approval under Section 33(1)(b) was necessary and this finding has been confirmed both by the Single Judge and the Division Bench of the High Court. In entering this finding, all the three fora have clearly lost sight of the distinction between sub-Section (1) and sub-Section (2) of Section 33 of the ID Act. The Single Judge noticed that the dismissal was for some other reason, yet held that Section 33 (1)(b) was attracted. There has been no independent application of mind by the Division Bench at all.14. Once we have come to the conclusion that the action of dismissal for misconduct was not connected with the dispute which was pending in conciliation, the provisions of Section 33(2)(b) of the ID Act would stand attracted. There is no dispute about the fact that there was compliance of the provisions of Section 33(2)(b), nor is there a finding to the contrary. In this view of the matter, the order of the Assistant Commissioner of Labour was contrary to law and there was an error on the part of the Single Judge and the Division Bench in affirming the order. | 1 | 3,199 | 1,155 | ### Instruction:
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### Input:
dispute before a tribunal. But it seems to have been felt that Section 33, as it stood before the amendment of 1956, was too stringent for it completely took away the right of the employer to make any alteration in the conditions of service or to make any order of discharge or dismissal without making any distinction as to whether such alteration or such an order of discharge or dismissal was in any manner connected with the dispute pending before an industrial authority. It seems to have been felt therefore that the stringency of the provision should be softened and the employer should be permitted to make changes in conditions of service etc. which were not connected with the dispute pending before an Industrial Tribunal. For the same reason it was felt that the authority of the employer to dismiss or discharge a workman should not be completely taken away where the dismissal or discharge was dependent on matters unconnected with the dispute pending before any tribunal. At the same time it seems to have been felt that some safeguards should be provided for a workman who may be discharged or dismissed during the pendency of a dispute on account of some matter unconnected with the dispute. Consequently Section 33 was redrafted in 1956 and considerably expanded. It is now in five sub-sections while before 1956 it consisted practically of what is now sub-section (1). This decision was also confirmed by a Constitution Bench of this Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd v. Ram Gopal Sharma and Ors. AIR 2002 SC 643 . These provisions have been interpreted in several decisions of this Court including Chartered Bank, Bombay v. Chartered Bank Employees Union (1960) 3 SCR 441 ; Tata Oil Mills Co. Ltd v. Workmen (1964) 7 SCR 555 ; PD Sharma v. State Bank of India (1968) 3 SCR 91 ; Air India Corporation v. Rebellow (1972) 1 SCC 814 ; Workmen of Sudder Office, Cinnamara v. Management of Sudder Office (1972) 4 SCC 746 ; and Mahendra Singh Dhantwal v. Hindustan Motors Ltd (1976) 4 SCC 606 . Where the termination for misconduct is not connected to the industrial dispute, Section 33(2)(b) recognizes the authority of the employer to initiate disciplinary action while at the same time imposing safeguards. They are intended to balance the disciplinary jurisdiction of the employer with the need to ensure that there is no victimization of the workmen. 12. In the present case, the order of the Assistant Commissioner of Labour takes note of the fact that initially a dispute was raised on 4 July 2002 by the workmen under Section 2(k) based on the following demands: 1. Passed (sic) on seniority in the spoiling unit, the workmen should be posted as sider and arya lifters 2. The monthly salary for the workmen working in the factory should be paid before 7th of the month 3. The workmen working in the factory shall be given hygienic drinking water 4. The women workmen working in the factory should be given two protective clothes to protect from the accident in every year. 13. The demand was received in the office of the Conciliation Officer and conciliation proceedings were in progress. The Union commenced a stay-in strike. Another dispute was raised on 1 August 2002 for the grant of permanency to the workmen in the factory and the conciliation proceedings were initiated on the demand. The management convened the disciplinary proceeding on the ground that the workmen had indulged in acts of vandalism involving the property of the employer. The disciplinary proceedings were convened for acts of vandalism involving the property of the employer. The misconduct for which the enquiry was convened had no connect with the demands by the workmen. In the first of the two conciliation proceedings, the demand of the workmen was for promotional avenues, the payment of monthly salary before the seventh day of each month, drinking water and protective clothing. In the second conciliation proceedings, the workmen had claimed the status of permanency. The disciplinary enquiry was held in respect of the acts of misconduct alleged to have been committed by the workmen involving the property of the employer. These dismissal for misconduct cannot be regarded as being connected to the dispute which was raised in conciliation, as noted above. The Assistant Commissioner of Labour came to the conclusion that the enquiry was conducted in accordance with the principles of natural justice and entered a finding of fact that there was no evidence to indicate that some of the workmen were protected workmen. The Assistant Commissioner of Labour also held that on 2 August 2002, a law and order problem had arisen as a result of which the management had initiated disciplinary proceedings. Nonetheless, the Assistant Commissioner of Labour came to the conclusion that once conciliation proceedings were initiated, prior approval under Section 33(1)(b) was necessary and this finding has been confirmed both by the Single Judge and the Division Bench of the High Court. In entering this finding, all the three fora have clearly lost sight of the distinction between sub-Section (1) and sub-Section (2) of Section 33 of the ID Act. The Single Judge noticed that the dismissal was for some other reason, yet held that Section 33 (1)(b) was attracted. There has been no independent application of mind by the Division Bench at all. 14. Once we have come to the conclusion that the action of dismissal for misconduct was not connected with the dispute which was pending in conciliation, the provisions of Section 33(2)(b) of the ID Act would stand attracted. There is no dispute about the fact that there was compliance of the provisions of Section 33(2)(b), nor is there a finding to the contrary. In this view of the matter, the order of the Assistant Commissioner of Labour was contrary to law and there was an error on the part of the Single Judge and the Division Bench in affirming the order.
### Response:
1
### Explanation:
:3. Before however we turn to the interpretation of the proviso we may refer to the circumstances in which Section 33(2) came to be enacted. Originally there was no such provision like Section 33(2) in the Act and the only provision to be found therein corresponded to the present Section 33(1). The object behind enacting Section 33 as it was before the amendment of 1956 was to allow continuance of industrial proceedings pending before any authority prescribed by the Act in a calm and peaceful atmosphere undisturbed by any other industrial dispute. The plain object of the section was to maintain the status quo as far as possible during the pendency of any industrial dispute before a tribunal. But it seems to have been felt that Section 33, as it stood before the amendment of 1956, was too stringent for it completely took away the right of the employer to make any alteration in the conditions of service or to make any order of discharge or dismissal without making any distinction as to whether such alteration or such an order of discharge or dismissal was in any manner connected with the dispute pending before an industrial authority. It seems to have been felt therefore that the stringency of the provision should be softened and the employer should be permitted to make changes in conditions of service etc. which were not connected with the dispute pending before an Industrial Tribunal. For the same reason it was felt that the authority of the employer to dismiss or discharge a workman should not be completely taken away where the dismissal or discharge was dependent on matters unconnected with the dispute pending before any tribunal. At the same time it seems to have been felt that some safeguards should be provided for a workman who may be discharged or dismissed during the pendency of a dispute on account of some matter unconnected with the dispute. Consequently Section 33 was redrafted in 1956 and considerably expanded. It is now in five sub-sections while before 1956 it consisted practically of what is now sub-section (1).This decision was also confirmed by a Constitution Bench of this Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd v. Ram Gopal Sharma and Ors. AIR 2002 SC 643 . These provisions have been interpreted in several decisions of this Court including Chartered Bank, Bombay v. Chartered Bank Employees Union (1960) 3 SCR 441 ; Tata Oil Mills Co. Ltd v. Workmen (1964) 7 SCR 555 ; PD Sharma v. State Bank of India (1968) 3 SCR 91 ; Air India Corporation v. Rebellow (1972) 1 SCC 814 ; Workmen of Sudder Office, Cinnamara v. Management of Sudder Office (1972) 4 SCC 746 ; and Mahendra Singh Dhantwal v. Hindustan Motors Ltd (1976) 4 SCC 606 . Where the termination for misconduct is not connected to the industrial dispute, Section 33(2)(b) recognizes the authority of the employer to initiate disciplinary action while at the same time imposing safeguards. They are intended to balance the disciplinary jurisdiction of the employer with the need to ensure that there is no victimization of the workmen.13. The demand was received in the office of the Conciliation Officer and conciliation proceedings were in progress. The Union commenced a stay-in strike. Another dispute was raised on 1 August 2002 for the grant of permanency to the workmen in the factory and the conciliation proceedings were initiated on the demand. The management convened the disciplinary proceeding on the ground that the workmen had indulged in acts of vandalism involving the property of the employer. The disciplinary proceedings were convened for acts of vandalism involving the property of the employer. The misconduct for which the enquiry was convened had no connect with the demands by the workmen. In the first of the two conciliation proceedings, the demand of the workmen was for promotional avenues, the payment of monthly salary before the seventh day of each month, drinking water and protective clothing. In the second conciliation proceedings, the workmen had claimed the status of permanency. The disciplinary enquiry was held in respect of the acts of misconduct alleged to have been committed by the workmen involving the property of the employer. These dismissal for misconduct cannot be regarded as being connected to the dispute which was raised in conciliation, as noted above. The Assistant Commissioner of Labour came to the conclusion that the enquiry was conducted in accordance with the principles of natural justice and entered a finding of fact that there was no evidence to indicate that some of the workmen were protected workmen. The Assistant Commissioner of Labour also held that on 2 August 2002, a law and order problem had arisen as a result of which the management had initiated disciplinary proceedings. Nonetheless, the Assistant Commissioner of Labour came to the conclusion that once conciliation proceedings were initiated, prior approval under Section 33(1)(b) was necessary and this finding has been confirmed both by the Single Judge and the Division Bench of the High Court. In entering this finding, all the three fora have clearly lost sight of the distinction between sub-Section (1) and sub-Section (2) of Section 33 of the ID Act. The Single Judge noticed that the dismissal was for some other reason, yet held that Section 33 (1)(b) was attracted. There has been no independent application of mind by the Division Bench at all.14. Once we have come to the conclusion that the action of dismissal for misconduct was not connected with the dispute which was pending in conciliation, the provisions of Section 33(2)(b) of the ID Act would stand attracted. There is no dispute about the fact that there was compliance of the provisions of Section 33(2)(b), nor is there a finding to the contrary. In this view of the matter, the order of the Assistant Commissioner of Labour was contrary to law and there was an error on the part of the Single Judge and the Division Bench in affirming the order.
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Sait Nagjee Purushotham And Co Vs. Commissioner Of Income-Tax, Madras | document of December 6, 1918 was carried were revoked and not the head agreement to do business in partnership. The fact that an express agreement to carry on the business in partnership was made (for which see the third recital in Annexure C II) further indicates that the agreement to that effect in the instrument December 6, 1918 was no longer subsisting. In this case the term providing for the continuance must refer to the continuance of the business and not to the continuance of the partnership agreement because that was expressly revoked. If this is not the correct view, then Cl. 20 would be inexplicable. That clause states that the partners in their individual capacity would be partners with Hemchand in another business the terms of which partnership appear in another partnership agreement of the same date and which is Annexure C I. This would show that the old partnership of 1918 had given up doing some of its existing businesses and it was decided to carry them on under a new partnership agreement. This would support the view that the old partnership was dissolved for it would not have otherwise given up those businesses.17. The two instruments Annexures C I and C II, therefore, clearly establish that in October/November 1937 the business that was carried on by the firm of Sait Nagjee Purushotham and Co. till that date, was discontinued and its businesses were split up into two and carried on by two independent partnerships then brought into existence. When this happens it is impossible to say that the pre-existing business was continued. This view finds support from S. N. A. S. A. Annamalai Chettiar v. Commissioner of Income-tax, Madras, 1951-20 ITR 238 (Mad), where it was held that when a business carried on in one unit is disintegrated and divided into parts, the parts are not the whole even though all the parts taken together constitute the whole. That was a case of a joint family business which on partition was split up between different members of the family. It was held that as a result of this splitting up there was a discontinuance of the original business at the date of the partition and on such discontinuance the family became entitled to relief under S. 25 (3). It is of some significance to point out that the partners constituting the appellant at the moment of the transfer in 1948 also thought that in 1937 the old firm ceased to exist and its business was carried on thereafter by two independent firms, for the document of October 30, 1943 has referred to Annexures C I and C II as constituting two independent partnerships and proceed to revoke them both and provided that the parties to the instrument "have agreed to carry on and continue as one single partnership business the existing partnership businesses for Sait Nagjee Purushotham and Co., Bankers, Piece-goods and Yarn Merchants, Sait Nagjee Purushotham and Co., Soap and Umbrella Merchants."18. Now when the business on which tax was charged under the Act of 1918 - which, it is not disputed, happened in this case - was discontinued in 1937 it could not have been carried on April 1, 1939. What was then carried on must have been some other business. So one of the conditions on which relief under S. 25 (4) of the Act could be claimed was not satisfied and the claim would not be maintainable.19. Further, more for the reasons earlier stated, it must be held that on April 1, 1939 the business, assuming its identity to have continued in spite of the splitting up, was being carried on by two persons, namely, two firms with different partners. Now the person who transferred the business which caused the succession in 1948 on which the appellant relies for relief under S. 25 (4) was a single firm. This latter firm could not have brought about by a change in the constitution of an existing firm, for there were two existing firms and they could not become one by simple changes in their constitution. Indeed the instrument of October 30, 1943 which brought the transferor firm, the appellant before us, into existence, expressly states that "The Agreements of Partnerships, dated 30th May 1939..........are hereby revoked." It follows that at the date succession relied upon can be said to have taken place, the business was being carried on by a person different from those who carried it on April 1, 1939. So another condition of the applicability (of) S. 25 (4) of the Act is not satisfied. The claim for relief under that Section must fail on this ground also.20. If it were to be said that the partnerships were brought into existence on May 30, 1939, by Annexures C I and C II instead of in October/November 1937 then also the appellants claim must fail. Whenever the new partnerships were brought into existence, the result would, in our view, necessarily be that the business of the old partnership which was taken over by the two new firms must be deemed to have been discontinued. On the principle stated in Annamalai Chettiar case, 1951-20 ITR 238 (Mad), there could not in such a case be succession of a business from one to another. That being so, there can be no question of the succession to business carried on at the commencement of the Indian Income-tax (Amendment) Act, 1939, i.e., April 1, 1939 and on which tax was charged under the Act of 1918 having taken place in 1948 as claimed by the appellant. What was discontinued could not be succeeded to. Even if it was held that on May 30, 1939, there was a succession to the business which we do not think is a correct view to take, that also would disentitle the appellant to relief under sub-s. (4) of S. 25 in the years 1948-1949 and 1949-50, for it should, in such an event, have claimed the relief in the year 1939-40. | 1[ds]20. If it were to be said that the partnerships were brought into existence on May 30, 1939, by Annexures C I and C II instead of in October/November 1937 then also the appellants claim must fail. Whenever the new partnerships were brought into existence, the result would, in our view, necessarily be that the business of the old partnership which was taken over by the two new firms must be deemed to have been discontinued. On the principle stated in Annamalai Chettiar case, 1951-20 ITR 238 (Mad), there could not in such a case be succession of a business from one to another. That being so, there can be no question of the succession to business carried on at the commencement of the Indian Income-tax (Amendment) Act, 1939, i.e., April 1, 1939 and on which tax was charged under the Act of 1918 having taken place in 1948 as claimed by the appellant. What was discontinued could not be succeeded to. Even if it was held that on May 30, 1939, there was a succession to the business which we do not think is a correct view to take, that also would disentitle the appellant to relief under sub-s. (4) of S. 25 in the years 1948-1949 and 1949-50, for it should, in such an event, have claimed the relief in the year 1939-40.Applying this test to the present case, it is quite clear that the identity of the entity was never lost and there was never a succession till the year 1948. It must be remembered that this was initially a business of a family but not in the sense in which a Hindu joint family is said to have a business. From the very start, certain members of the family along with a stranger (Bhagwanjee) carried on the business in piece goods etc. In 1918, and in 1934 different deeds were executed but the basic deed was that of 1918. By that time, Bhagwanjee had retired and the business was in the hands of only the members of the family. Hemchand was then taken on in 1937 and in 1939, the original business was separated from the businesses newly started after 1922. Hemchand was given a share only in the newly started businesses to which S. 25 could not possibly apply. When Hemchand retired, those businesses were also taken over and merged with the original business. In other words, the original business continued till 1943 in the hands of Narayanjee and Maneklal who were partners as for back as 1918 and three younger members of the family. In 1948, Maneklal and those three other members of the family sold this business to the company. It cannot be said these changes were not covered by the expression "a change in the constitution of the firm" and were comprehended in the term succession. No question of the dissolution of the firm Sait Nagjee Purushotham and Co. ever arose. It continued right through; even the newly started businesses were owned by it and though for a time the newly started businesses and the other businesses were kept distinct so that the stranger Hemchand could not get the benefit of partnership in the Head firm, it cannot be said that the old firm had either discontinued or had been succeeded to by another person. Hemchand was merely taken on as a working partner. His rights in the firm were extremely slender; he had to make a deposit of Rs. 15,000/- with the Head Firm and he was to get a remuneration of Rs. 400/- p. m. which was to go up or down according to the profits. | 1 | 5,320 | 674 | ### Instruction:
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document of December 6, 1918 was carried were revoked and not the head agreement to do business in partnership. The fact that an express agreement to carry on the business in partnership was made (for which see the third recital in Annexure C II) further indicates that the agreement to that effect in the instrument December 6, 1918 was no longer subsisting. In this case the term providing for the continuance must refer to the continuance of the business and not to the continuance of the partnership agreement because that was expressly revoked. If this is not the correct view, then Cl. 20 would be inexplicable. That clause states that the partners in their individual capacity would be partners with Hemchand in another business the terms of which partnership appear in another partnership agreement of the same date and which is Annexure C I. This would show that the old partnership of 1918 had given up doing some of its existing businesses and it was decided to carry them on under a new partnership agreement. This would support the view that the old partnership was dissolved for it would not have otherwise given up those businesses.17. The two instruments Annexures C I and C II, therefore, clearly establish that in October/November 1937 the business that was carried on by the firm of Sait Nagjee Purushotham and Co. till that date, was discontinued and its businesses were split up into two and carried on by two independent partnerships then brought into existence. When this happens it is impossible to say that the pre-existing business was continued. This view finds support from S. N. A. S. A. Annamalai Chettiar v. Commissioner of Income-tax, Madras, 1951-20 ITR 238 (Mad), where it was held that when a business carried on in one unit is disintegrated and divided into parts, the parts are not the whole even though all the parts taken together constitute the whole. That was a case of a joint family business which on partition was split up between different members of the family. It was held that as a result of this splitting up there was a discontinuance of the original business at the date of the partition and on such discontinuance the family became entitled to relief under S. 25 (3). It is of some significance to point out that the partners constituting the appellant at the moment of the transfer in 1948 also thought that in 1937 the old firm ceased to exist and its business was carried on thereafter by two independent firms, for the document of October 30, 1943 has referred to Annexures C I and C II as constituting two independent partnerships and proceed to revoke them both and provided that the parties to the instrument "have agreed to carry on and continue as one single partnership business the existing partnership businesses for Sait Nagjee Purushotham and Co., Bankers, Piece-goods and Yarn Merchants, Sait Nagjee Purushotham and Co., Soap and Umbrella Merchants."18. Now when the business on which tax was charged under the Act of 1918 - which, it is not disputed, happened in this case - was discontinued in 1937 it could not have been carried on April 1, 1939. What was then carried on must have been some other business. So one of the conditions on which relief under S. 25 (4) of the Act could be claimed was not satisfied and the claim would not be maintainable.19. Further, more for the reasons earlier stated, it must be held that on April 1, 1939 the business, assuming its identity to have continued in spite of the splitting up, was being carried on by two persons, namely, two firms with different partners. Now the person who transferred the business which caused the succession in 1948 on which the appellant relies for relief under S. 25 (4) was a single firm. This latter firm could not have brought about by a change in the constitution of an existing firm, for there were two existing firms and they could not become one by simple changes in their constitution. Indeed the instrument of October 30, 1943 which brought the transferor firm, the appellant before us, into existence, expressly states that "The Agreements of Partnerships, dated 30th May 1939..........are hereby revoked." It follows that at the date succession relied upon can be said to have taken place, the business was being carried on by a person different from those who carried it on April 1, 1939. So another condition of the applicability (of) S. 25 (4) of the Act is not satisfied. The claim for relief under that Section must fail on this ground also.20. If it were to be said that the partnerships were brought into existence on May 30, 1939, by Annexures C I and C II instead of in October/November 1937 then also the appellants claim must fail. Whenever the new partnerships were brought into existence, the result would, in our view, necessarily be that the business of the old partnership which was taken over by the two new firms must be deemed to have been discontinued. On the principle stated in Annamalai Chettiar case, 1951-20 ITR 238 (Mad), there could not in such a case be succession of a business from one to another. That being so, there can be no question of the succession to business carried on at the commencement of the Indian Income-tax (Amendment) Act, 1939, i.e., April 1, 1939 and on which tax was charged under the Act of 1918 having taken place in 1948 as claimed by the appellant. What was discontinued could not be succeeded to. Even if it was held that on May 30, 1939, there was a succession to the business which we do not think is a correct view to take, that also would disentitle the appellant to relief under sub-s. (4) of S. 25 in the years 1948-1949 and 1949-50, for it should, in such an event, have claimed the relief in the year 1939-40.
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20. If it were to be said that the partnerships were brought into existence on May 30, 1939, by Annexures C I and C II instead of in October/November 1937 then also the appellants claim must fail. Whenever the new partnerships were brought into existence, the result would, in our view, necessarily be that the business of the old partnership which was taken over by the two new firms must be deemed to have been discontinued. On the principle stated in Annamalai Chettiar case, 1951-20 ITR 238 (Mad), there could not in such a case be succession of a business from one to another. That being so, there can be no question of the succession to business carried on at the commencement of the Indian Income-tax (Amendment) Act, 1939, i.e., April 1, 1939 and on which tax was charged under the Act of 1918 having taken place in 1948 as claimed by the appellant. What was discontinued could not be succeeded to. Even if it was held that on May 30, 1939, there was a succession to the business which we do not think is a correct view to take, that also would disentitle the appellant to relief under sub-s. (4) of S. 25 in the years 1948-1949 and 1949-50, for it should, in such an event, have claimed the relief in the year 1939-40.Applying this test to the present case, it is quite clear that the identity of the entity was never lost and there was never a succession till the year 1948. It must be remembered that this was initially a business of a family but not in the sense in which a Hindu joint family is said to have a business. From the very start, certain members of the family along with a stranger (Bhagwanjee) carried on the business in piece goods etc. In 1918, and in 1934 different deeds were executed but the basic deed was that of 1918. By that time, Bhagwanjee had retired and the business was in the hands of only the members of the family. Hemchand was then taken on in 1937 and in 1939, the original business was separated from the businesses newly started after 1922. Hemchand was given a share only in the newly started businesses to which S. 25 could not possibly apply. When Hemchand retired, those businesses were also taken over and merged with the original business. In other words, the original business continued till 1943 in the hands of Narayanjee and Maneklal who were partners as for back as 1918 and three younger members of the family. In 1948, Maneklal and those three other members of the family sold this business to the company. It cannot be said these changes were not covered by the expression "a change in the constitution of the firm" and were comprehended in the term succession. No question of the dissolution of the firm Sait Nagjee Purushotham and Co. ever arose. It continued right through; even the newly started businesses were owned by it and though for a time the newly started businesses and the other businesses were kept distinct so that the stranger Hemchand could not get the benefit of partnership in the Head firm, it cannot be said that the old firm had either discontinued or had been succeeded to by another person. Hemchand was merely taken on as a working partner. His rights in the firm were extremely slender; he had to make a deposit of Rs. 15,000/- with the Head Firm and he was to get a remuneration of Rs. 400/- p. m. which was to go up or down according to the profits.
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Maganlal Etc Vs. Jaiswal Industries Neemach & Ors | holding that the said principle will not be attracted to a sale which has taken place pursuant to an order under Section 32 of the Act insofar as the provisions in the Code with regard to execution of a decree are concerned. Of course, in view of the limited scope of legal fiction as indicated above the provisions in the Code shall be applicable to an order of sale under the Act only with regard to execution of that order as if it was a decree in a suit and the Financial Corporation was a decree holder and the debtor a judgment debtor and this legal fiction will not be capable of being extended so as to treat an order of sale passed under the Act to be a decree in a suit for any other purpose for instance applying Section 34 of the Code as was sought to be done in the case of Everest Industrial Corporation ((1987) 3 SCC 597 ) nor could it be extended for treating the application made under Section 32(1) of the Act as a plaint for purpose of payment of court fee as we sought to be done in the case of Gujarat State Financial Corporation. ((1979) 1 SCC 193 : (1979) 1 SCR 372 : AIR 1978 SC 1765 : (1979) 49 Com Cas 187). 31. That the provisions of the Code with regard to execution of a decree for sale of mortgaged property would apply to execution of an order under Section 32 of the Act is clear from Section 32(8) of the Act and the reasons stated above. It would also be so inasmuch as even otherwise once the order under Section 32 for sale is made executable by a District Judge in his capacity as District Judge and not persona designata the provisions of the Code which are exercisable by the District Judge in execution of a decree for sale of mortgaged property would get attracted. 32. In National Sewing Thread Co. Ltd., v. James Chadwick & Bros. Ltd., (1953 SCR 1028 : AIR 1953 SC 357 ) an appeal was filed before a Single Judge of the Bombay High Court under Section 76(1) of the Trademarks Act, 1940 which provides that an appeal shall lie from any decision of the Registrar under the Act or the rules made thereunder to the High court having jurisdiction. The Trademarks Act, however, did not make any provision with regard to the procedure to be followed by the High court in the appeal or as to whether the order of the High court was appealable. Against the judgment of the Single Judge and appeal was preferred under clause 15 of the letters patent. That appeal was allowed and the judgment of the Single Judge was reversed. Before the Supreme Court an objection was raised that the Letters Patent appeal was not maintainable. While repelling the said objection it was held : (SCR pp. 1033-34) "Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that court and in accordance with the provisions of the charter under which that court is constituted an which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a court already established, then that appeal must be regulated by the practice and procedure of that court. This rule was very succinctly stated by Viscount Haldane L.C. in National Telephone Co., Ltd., v. Postmaster-General (1913 AC 546 : 82 LJKB 1197 : 109 LT 562 HL), in these terms"When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decision likewise attaches. The same view was expressed by their Lordships of the Privy Council in R.M.A.R.A. Adaikappa Chettiar v. Ra. Chandrasekhara Thevar ((1947) 74 IA 264), wherein it was said: "Where a legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal. Again in Secretary of State for India v. Chellikani Ram Rao (1916 ILR 39 Mad 617), when dealing with the case under the Madras Forest Act their Lordships observed as follows: It was contended on behalf of the appellant that all further proceedings in courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships opinion this objection is not well founded. Their view is that when proceedings of this character reach the District Court, that court is appealed to as one of the ordinary courts of the country, with regard to whose procedure, orders, and decrees the ordinary rules of the Civil Procedure Code apply. Though the facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the present case. Section 76 of the Trademarks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by Section 76 it has exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a Single Judge, his judgment becomes subject to appeal under clause 15 of the letters patent there being nothing to the contrary in the Trademarks Act." | 0[ds]We shall first deal with the question with regard to the effect of an appeal being pending against an order dismissing an application under Order XXI, Rule 90 of the Code.In Chandra Mani v. Anarjan Bibi (AIR 1934 PC 134 ) in execution of two final mortgage decrees for sale, the mortgaged properties were sold by auction. The judgment debtors filed applications under Order XXI, Rule 90 of the Code which were dismissed and the sales were confirmed in pursuance of Order XXI, Rule 92 on April 22, 1924. Appeals were filed against this order by some of the judgment debtors in the High Court which were dismissed on March 17, 1927. Sale certificates were thereafter granted to the two auction purchasers on May 19, 1928 and June 1928 respectively, who thereupon applied on September 10, 1928 for possession of the properties purchased by them. These applications were objected to by the judgment debtors on the ground that they were barred by limitation under Article 180 of the Limitation Act, 1908 which provided that such an application must be made within three years from the time when the sale becomesSubordinate Judge overruled the objection on the ground that in view of the pendency of the appeals filed by the judgment debtors against the order dismissing their applications under Order XXI, Rule 90 of the Code time did not begin to run until March 17, 1927 when the said appeals were dismissed by the High Court. On appeal by the judgment debtors the High Court took the view that the sale became absolute on April 22, 1924 when the Subordinate Judge confirmed the sales. On further appeal by the auction purchasers the order of the High Court was reversed by the Privy Council and it was held : (AIR p.consideration of the sections and orders of the Code, their Lordships are of opinion that in construing the meaning of the words when the sale becomes absolute in Article 180, Limitation Act, 1 regard must be had not only to the provisions of Order XXI, Rule 92(1) of the schedule to the Civil Procedure Code, but also to the other material sections and orders of the Code, including those which relate to appeals from orders made under Order XXI, Rule 92(1). The result is that where there is an appeal from an order of the Subordinate Judge, disallowing the application to set aside the sale, the sale will not become absolute of the appeal, even though the Subordinate Judge may have confirmed the sale, as he was bound to do, when he decided to disallow the abovementioned application"Their Lordships therefore are of opinion that on the facts of this case the sales did not become absolute within the meaning of Article 180, Limitation Act, until March, 17, 1927, and that the applications for possession of the properties purchased at the auction sales were not barred by the Limitation Act.A similar view was taken by this Court in Sri Ranga Nilayam Rama Krishna Rao v. Kandokori Chellayamma (1950 SCR 806 : AIR 1953 SC 425 ) where it was held that that when an appeal is filed against an order refusing to set aside an execution sale under Order XXI, Rule 90 of the Code no finality can be attached to the order confirming the sale until the appeal is decided. In S. V. Ramalingam ((1975) 2 Mad LJ 494) the question came up directly in connection with the applicability of Order XXXIV, Rule 5 itself which contemplates payment into court "on to before the day fixed or at any time before the confirmation of a sale". In that case to in pursuance of a final decree passed in this behalf the mortgaged property was sold and the applications made by the mortgagors for setting aside the sale were dismissed and the sale was confirmed and the sale certificate was also engrossed an stamp papers. The mortgagors filed an appeal against that order before the High Court XXXIV, Rule 5 was filed for redemption of mortgage. This application was opposed inter alia on the ground that such an application could not lie after the sale had been confirmed by the lower court. While repelling the objection of the auction purchaser and holding that the judgment debtors were entitled to the benefit of Order XXIV, Rule 5 of the Code it was held by Mr. Justice S. Natarajan (as His Lordship thenconfirmation of sale subsequent to the dismissal of a petition under Order XXI, Rule 90 cannot, in reality, alter the situation when the mortgagor-judgment debtor has preferred within time an appeal against the dismissal of his petition under Order auction-purchaser a step further than before the confirmation of the sale, the confirmation, by itself, is in one sense, inchoate. The confirmation gives that sale only viability but does not render the indefeasible one, till such time as the appeal preferred by the mortgagor against the validity of the sale remains undisposed. In that sense, the confirmation effected by the executing court may become final as far as the executing court is concerned, but it certainly does not stamp the transaction with irrevocable finality when alone the rights of parties get crystallised beyond retracement. Consequently, the appeal preferred by the judgment debtor has the effect of rendering a sale and its confirmation fluidal and nebulous. It, therefore, follows that the finality of the sale is rendered at large before the appellate court in appeal and as such, the petitioners will be entitled to exercise the right conferred on them under Order XXXIV, Rule 5 to redeem the mortgage.The same view was reiterated in almost an identical case by a bench of the Madras High Court in M. Sevugan Chettiar v. V. A. Narayana Raja (AIR 1984 Mad 334 : (1984) 97 Mad L W 328 : (1984) 2 Mad LJ 55). It was held that as long as there is no confirmation of sale in the eye of law and matter was sub judice in appeal time was available for the judgment debtor to make the deposit sunder Order XXXIV, Rule 5 of the Code and the process of deposit could be worked out until the confirmation of sale reaches theIn Gujarat State Financial Corporation v. Natson Manufacturing Co. (P) Ltd.((1979) 1 SCC 193 : (1979) 1 SCR 372 : AIR 1978 SC 1765 : (1979) 49 Com Cas 187), the question as to what was the nature of proceedings under Sections 31 and 32 of the Act came up for consideration before this Court in connection with an objection about payment of court fee on an application under Section 31(1). It was held that the form of the application, the nature of the relief, the compulsion to make interim order, the limited inquiry contemplated by sub-section (6) of Section 32 and the nature of relief that can be granted and the manner of execution clearly show that the application under Section 31(1) is neither a plaint as contemplated by Article 1 of Schedule 1 nor an application in the nature of a plaint as contemplated by Article 7 ofthe Court Fees Act, 1870. It was also held that Section 31(1) of the Act prescribes a special procedure for enforcement of the claims of the Financial Corporation and it is not even something akin to a suit of a mortgage to recover mortgage money by sale of mortgaged property. It was pointed out that the distinguishing features noticeable between a suit for recovery of mortgage money be sale of mortgaged property and an application under Section 31 for one or more reliefs specified therein are that even if the Corporation applicant so chooses it cannot in the application pray for a preliminary decree for accounts or final decree for payment of money nor can it seek to enforce any personal liability even if such one is incurred under the contract of mortgage. The Corporation cannot pray for a decree of its outstanding dues and can make an application for one of the three reliefs mentioned in Section 31(1), none of which if granted results in a money decree or decree for recovery of outstanding loans or advance. It was further held that a substantive relief in an application under Section 31(1) "is something akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree. "With regard to the scope of sub-section (6) of Section 32 it was held that it has to be read in the context in which it is placed and it does not expand the context in the application as if it is a suit between a mortgage and the mortgagor for sale of mortgaged property. The relief claimed under Section 31(1) was held not to be a substantive relief which can be valued in terms of the monetary gain or prevention of monetary loss. It was pointed out that the claim of the Corporation in an application was pointed out that the claim of the Corporation in an application under Section 31(1) was that there is a breach of agreement or default in making repayment of loan or advance or installment thereof and, therefore, the mortgaged property could beIn Everest Industrial Corporation v. Gujarat State Financial Corporation ((1987) 3 SCC 597 ) a question arose as to whether an order under Section 34 of the Code could be passed in proceedings under Section 31(1) of the Act. After referring to the decision in the case of Gujarat State Financial Corporation ((1979) 1 SCC 193 : (1979) 1 SCR 372 : AIR 1978 SC 1765 : (1979) 49 Com Cas 187) it was held that if as held by this Court in that case the proceeding instituted under Section 31(1) of the Act is something akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree no question of passing any order under Section 34 of the Code would arise since that section could be applicable only at the stage of the passing of the decree and not to any posterior to theIn view of these two decision the law seems to be settled that an application under Section 31(1) of the Act cannot be put on par to a suit for enforcement of a mortgage nor the order passed thereon under Section 32 of the Act be put on par as if it was an order in a suit between a mortgagee and the mortgagor for sale of mortgaged property. On the other hand the substantive relief in an application under Section 31(1) is something akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of theIn this connection, it is relevant to note that in neither of the two cases namely, Gujarat State Financial Corporation ((1987) 3 SCC 597 ) sub-section (8) of Section 32 of the Act came up for consideration. Section 46-B of the Act reads asThe provisions of this Act and of any rules or orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the memorandum or articles of association of an industrial concern or in any other instrument having effect by virtue of any law other than this Act, but save as aforesaid, the provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being applicable to an industrial concern.No provision in the Act or any rule or order made thereunder has been brought to our notice stating that the effect of any action taken thereunder including the passing of orders of attachment and sale under Section 31 and 32 thereof, is to extinguish the right of redemption. In other words, there is nothing in the Act or in any rule or order made thereunder which maybe inconsistent with Section 60 of the Transfer of Property Act particularly the proviso thereto. Consequently no provision in the Act can be read "in derogation" of the said SectionIt is true that under the Code it is not necessary to attach the mortgaged property before putting it to sale but Section 31 of the Act contemplates attachment of even the mortgaged property and Section 32 thereof speaks on an order of sale of the attached property, but that alone can by no stretch of imagination have the effect of extinguishing the equity of redemption. Such attachment does not have that effect either under the proviso to Section 60 of the Transfer of Property Act or under any provision of the Act, or rule or order made thereunder. Section 31 and 32 of the Act insofar as they contain requirement of attaching the mortgaged property before its sale and ordering sale of the attached property read with sub-section (8) of Section 32 of the Act will, therefore, have the only effect that the said requirement" shall be in addition to, and not in derogation of" the provisions contained in the Code for sale of mortgagedThe purpose of enacting Sections 31 and 32 of the Act was apparently to provide for a speedy remedy for recovery of the dues of the Financial Corporation. This purpose however was, in cases covered by clause (a) of sub-section (1) of Section 31 confined to the stage of obtaining an order akin to a decree in a suit, in execution whereof "the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation as security for the loan or advance" could be sold. Sections 31 and 32 of the Act cut across and dispense with the provisions of the Code from the stage of filing a suit to the stage of obtaining a decree in execution whereof such properties as are referred to in clause (1) of sub-section (1) of Section 31 could be sold. After this stage was reached sale in execution of an order under Section 32 of the Act was for purposes of execution put at par with the sale in execution of a decree obtained in a suit, by enacting sub-section (8) of Section 32 of the Act. This sub-section as noted earlier provides that an order of attachment or sale of property under this section shall be carried into effect as far as practicable in the manner provided in theCode of Civil Procedure, 1908 for the attachment or sale of property in execution of a decree as if the Financial Corporation were the decreeExpression "as far as practicable" and in execution of a decree as if the Financial Corporation were the decree holder" are the only expressions which qualify the "manner provided" for sale of property in execution of a decree", as contained not only in some specific provision of the code e.g. Order XXI thereof but" in theCode of Civil Procedure, 1908" namely, all the provisions in the Code in this regard wherever they mayIf in its anxiety to ensure speedy recovery of the dues of the Financial Corporation Parliament had intended also to cut across and dispense with the procedure contained in the code for execution of a decree for sale of such properties as are referred to in clause (a) of sub-section (1) of Section 31 of the Act, it would have made some provision analogous to provisions contained in the enactments for revenue recovery. But that was not done. Instead, sub-section (8) was incorporated in Section 32 of the Act. It is in this background that the question whether provisions of Order XXXIV, rule 5 of the code will be attracted or not to the facts of the instant case has to beWe shall first deal with the scope and import of the expression "as far as practicable" and "in execution of a decree as if the Financial Corporation were the decree holder" used in sub-section (8) of Section 32 of the Act. Without anything more the expression "as far as practicable" will mean that the manner provided in the Code for attachment or sale of property in execution of a decree shall be applicable in its entirely except such provision therein which may not be practicable to be applied. It will be for the person asserting that a particular provision with regard to execution of a decree for a sale of an immovable property contained in theCode of Civil Procedure will not apply to execution of an order under Section 32 of the Act on the ground that it was not practicable to show as to how and why it was not practicable. As regards the second expression namely" in execution of a decree as if the Financial Corporation were the decree holder" it may be pointed out that even though an order under Section 32 as seen above is not a decree stricto sensu as defined in Section 2(2) of the Code and the Financial Corporation would not as such be called the decree holder, Section 32(8) of the Act imports a legal fiction whereby the order under Section 32 of the Act for purposes of execution would be a decree and the Financial Corporation a decree holder. Apparently, the person against whom such decree has been executed namely the debtor of the Financial Corporation would be the judgment debtor, InEast End Dwellings Company Limited v. Finsbury Borough Council ((1952) AC 109 : (1950) 2 All ER81) Lord Asquith at page 132you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it..... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.It is also settled law that a legal fiction is to be limited to the purpose for which it was created and should not be extended beyond the legitimate field. Reference for the proposition may be made to the decision of this Court in Bengal Immunity Company Limited v. State of Bihar, ((1955) 2 SCR 603 : AIR 1955 SC 661 : (1955) 6 STC 446 ), C.I.T. v. Amarchand N. Shroff (1963 Supp 1 SCR 699 : AIR 1963 SC 1448 : (1963) 48 ITR 59 ) and C.I.T. v. Vadilal Lallubhai ((1973) 3 SCCAs is apparent from the plain language of Section 32(8) of the Act the legal fiction was created for the purpose of executing an order under Section 32 of the Act for sale of attached property as if such order was a decree in a suit for sale and the Financial Corporation was the decree holder whereas the debtor was the judgment debtor. Consequently, the provisions of theCode of Civil Procedure with regard to execution of a decree for sale of mortgaged property contained in Order XXI of the code including the right to file an appeal against such orders passed during the course of execution which are appealable, shall apply mutatis mutandis to executive of an order under Section 32 of the Act unless some provision is not practicable to be applied. It cannot be disputed that the provisions contained in Order XXXIV, Rule 5 of the Code are attracted as is apparent from the plain language thereof during the proceedings in execution of a final decree for sale and are thus provisions contained in the Code with regard to and having a material bearing on the execution of a decree as aforesaid. As seen above, the provisions contained in Order XXXIV, Rule 5 of the Code in substance permit the judgment debtor to redeem the mortgage even at the stage contemplated by Order XXXIV, Rule 5 of the Code in substance permit the judgment debtor to redeem the mortgage even at the stage contemplated by Order XXXIV, Rule 5 unless the equity of redemption has got extinguished. Since the contingency whereunder an equity of redemption gets extinguished is contained in the proviso to Section 60 of the Transfer of Property Act and since as indicated above, in the instant case the equity of redemption has not extinguished we find no good ground to take the view that even though all the remaining provisions with regard to execution of a decree for sale of mortgaged property will apply to execution of an order under Section 32 of the Act, the provisions contained in Order XXXIV, Rule 5 of the Code shall not apply. Nothing has been brought to our notice as to how and why it is not practicable to apply the said provision. As already pointed out earlier it has been held by this Court in the case of Mhadagonda Ramgonda Patil ((1988) 3 SCC 298 ) that in a suit for redemption of a mortgage other than a mortgage by conditional sale or an anomalous mortgage, the mortgagor has a right of redemption even after the sale has taken place pursuant to the final decree but before the confirmation of such sale and that in view of these provisions the question of merger of mortgage debt in the decretal debt does not at all arise. We again do not find any good ground for holding that the said principle will not be attracted to a sale which has taken place pursuant to an order under Section 32 of the Act insofar as the provisions in the Code with regard to execution of a decree are concerned. Of course, in view of the limited scope of legal fiction as indicated above the provisions in the Code shall be applicable to an order of sale under the Act only with regard to execution of that order as if it was a decree in a suit and the Financial Corporation was a decree holder and the debtor a judgment debtor and this legal fiction will not be capable of being extended so as to treat an order of sale passed under the Act to be a decree in a suit for any other purpose for instance applying Section 34 of the Code as was sought to be done in the case of Everest Industrial Corporation ((1987) 3 SCC 597 ) nor could it be extended for treating the application made under Section 32(1) of the Act as a plaint for purpose of payment of court fee as we sought to be done in the case of Gujarat State Financial Corporation. ((1979) 1 SCC 193 : (1979) 1 SCR 372 : AIR 1978 SC 1765 : (1979) 49 Com CasThat the provisions of the Code with regard to execution of a decree for sale of mortgaged property would apply to execution of an order under Section 32 of the Act is clear from Section 32(8) of the Act and the reasons stated above. It would also be so inasmuch as even otherwise once the order under Section 32 for sale is made executable by a District Judge in his capacity as District Judge and not persona designata the provisions of the Code which are exercisable by the District Judge in execution of a decree for sale of mortgaged property would getIn National Sewing Thread Co. Ltd., v. James Chadwick & Bros. Ltd., (1953 SCR 1028 : AIR 1953 SC 357 ) an appeal was filed before a Single Judge of the Bombay High Court under Section 76(1) of the Trademarks Act, 1940 which provides that an appeal shall lie from any decision of the Registrar under the Act or the rules made thereunder to the High court having jurisdiction. The Trademarks Act, however, did not make any provision with regard to the procedure to be followed by the High court in the appeal or as to whether the order of the High court was appealable. Against the judgment of the Single Judge and appeal was preferred under clause 15 of the letters patent. That appeal was allowed and the judgment of the Single Judge was reversed. Before the Supreme Court an objection was raised that the Letters Patent appeal was not maintainable. While repelling the said objection it was held : (SCR pp.after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that court and in accordance with the provisions of the charter under which that court is constituted an which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a court already established, then that appeal must be regulated by the practice and procedure of that court. This rule was very succinctly stated by Viscount Haldane L.C. in NationalTelephone Co., Ltd., v. Postmaster-General (1913 AC 546 : 82 LJKB 1197 : 109 LT 562in these terms"When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decision likewisesame view was expressed by their Lordships of the Privy Council in R.M.A.R.A. Adaikappa Chettiar v. Ra. Chandrasekhara Thevar ((1947) 74 IA 264), wherein it wasa legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right ofin Secretary of State for India v. Chellikani Ram Rao (1916 ILR 39 Mad 617), when dealing with the case under the Madras Forest Act their Lordships observed aswas contended on behalf of the appellant that all further proceedings in courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships opinion this objection is not well founded. Their view is that when proceedings of this character reach the District Court, that court is appealed to as one of the ordinary courts of the country, with regard to whose procedure, orders, and decrees the ordinary rules of the Civil Procedure Codethe facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the present case. Section 76 of the Trademarks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by Section 76 it has exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a Single Judge, his judgment becomes subject to appeal under clause 15 of the letters patent there being nothing to the contrary in the Trademarks Act." | 0 | 8,655 | 4,950 | ### Instruction:
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holding that the said principle will not be attracted to a sale which has taken place pursuant to an order under Section 32 of the Act insofar as the provisions in the Code with regard to execution of a decree are concerned. Of course, in view of the limited scope of legal fiction as indicated above the provisions in the Code shall be applicable to an order of sale under the Act only with regard to execution of that order as if it was a decree in a suit and the Financial Corporation was a decree holder and the debtor a judgment debtor and this legal fiction will not be capable of being extended so as to treat an order of sale passed under the Act to be a decree in a suit for any other purpose for instance applying Section 34 of the Code as was sought to be done in the case of Everest Industrial Corporation ((1987) 3 SCC 597 ) nor could it be extended for treating the application made under Section 32(1) of the Act as a plaint for purpose of payment of court fee as we sought to be done in the case of Gujarat State Financial Corporation. ((1979) 1 SCC 193 : (1979) 1 SCR 372 : AIR 1978 SC 1765 : (1979) 49 Com Cas 187). 31. That the provisions of the Code with regard to execution of a decree for sale of mortgaged property would apply to execution of an order under Section 32 of the Act is clear from Section 32(8) of the Act and the reasons stated above. It would also be so inasmuch as even otherwise once the order under Section 32 for sale is made executable by a District Judge in his capacity as District Judge and not persona designata the provisions of the Code which are exercisable by the District Judge in execution of a decree for sale of mortgaged property would get attracted. 32. In National Sewing Thread Co. Ltd., v. James Chadwick & Bros. Ltd., (1953 SCR 1028 : AIR 1953 SC 357 ) an appeal was filed before a Single Judge of the Bombay High Court under Section 76(1) of the Trademarks Act, 1940 which provides that an appeal shall lie from any decision of the Registrar under the Act or the rules made thereunder to the High court having jurisdiction. The Trademarks Act, however, did not make any provision with regard to the procedure to be followed by the High court in the appeal or as to whether the order of the High court was appealable. Against the judgment of the Single Judge and appeal was preferred under clause 15 of the letters patent. That appeal was allowed and the judgment of the Single Judge was reversed. Before the Supreme Court an objection was raised that the Letters Patent appeal was not maintainable. While repelling the said objection it was held : (SCR pp. 1033-34) "Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that court and in accordance with the provisions of the charter under which that court is constituted an which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a court already established, then that appeal must be regulated by the practice and procedure of that court. This rule was very succinctly stated by Viscount Haldane L.C. in National Telephone Co., Ltd., v. Postmaster-General (1913 AC 546 : 82 LJKB 1197 : 109 LT 562 HL), in these terms"When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decision likewise attaches. The same view was expressed by their Lordships of the Privy Council in R.M.A.R.A. Adaikappa Chettiar v. Ra. Chandrasekhara Thevar ((1947) 74 IA 264), wherein it was said: "Where a legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal. Again in Secretary of State for India v. Chellikani Ram Rao (1916 ILR 39 Mad 617), when dealing with the case under the Madras Forest Act their Lordships observed as follows: It was contended on behalf of the appellant that all further proceedings in courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships opinion this objection is not well founded. Their view is that when proceedings of this character reach the District Court, that court is appealed to as one of the ordinary courts of the country, with regard to whose procedure, orders, and decrees the ordinary rules of the Civil Procedure Code apply. Though the facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the present case. Section 76 of the Trademarks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by Section 76 it has exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a Single Judge, his judgment becomes subject to appeal under clause 15 of the letters patent there being nothing to the contrary in the Trademarks Act."
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these provisions the question of merger of mortgage debt in the decretal debt does not at all arise. We again do not find any good ground for holding that the said principle will not be attracted to a sale which has taken place pursuant to an order under Section 32 of the Act insofar as the provisions in the Code with regard to execution of a decree are concerned. Of course, in view of the limited scope of legal fiction as indicated above the provisions in the Code shall be applicable to an order of sale under the Act only with regard to execution of that order as if it was a decree in a suit and the Financial Corporation was a decree holder and the debtor a judgment debtor and this legal fiction will not be capable of being extended so as to treat an order of sale passed under the Act to be a decree in a suit for any other purpose for instance applying Section 34 of the Code as was sought to be done in the case of Everest Industrial Corporation ((1987) 3 SCC 597 ) nor could it be extended for treating the application made under Section 32(1) of the Act as a plaint for purpose of payment of court fee as we sought to be done in the case of Gujarat State Financial Corporation. ((1979) 1 SCC 193 : (1979) 1 SCR 372 : AIR 1978 SC 1765 : (1979) 49 Com CasThat the provisions of the Code with regard to execution of a decree for sale of mortgaged property would apply to execution of an order under Section 32 of the Act is clear from Section 32(8) of the Act and the reasons stated above. It would also be so inasmuch as even otherwise once the order under Section 32 for sale is made executable by a District Judge in his capacity as District Judge and not persona designata the provisions of the Code which are exercisable by the District Judge in execution of a decree for sale of mortgaged property would getIn National Sewing Thread Co. Ltd., v. James Chadwick & Bros. Ltd., (1953 SCR 1028 : AIR 1953 SC 357 ) an appeal was filed before a Single Judge of the Bombay High Court under Section 76(1) of the Trademarks Act, 1940 which provides that an appeal shall lie from any decision of the Registrar under the Act or the rules made thereunder to the High court having jurisdiction. The Trademarks Act, however, did not make any provision with regard to the procedure to be followed by the High court in the appeal or as to whether the order of the High court was appealable. Against the judgment of the Single Judge and appeal was preferred under clause 15 of the letters patent. That appeal was allowed and the judgment of the Single Judge was reversed. Before the Supreme Court an objection was raised that the Letters Patent appeal was not maintainable. While repelling the said objection it was held : (SCR pp.after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that court and in accordance with the provisions of the charter under which that court is constituted an which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a court already established, then that appeal must be regulated by the practice and procedure of that court. This rule was very succinctly stated by Viscount Haldane L.C. in NationalTelephone Co., Ltd., v. Postmaster-General (1913 AC 546 : 82 LJKB 1197 : 109 LT 562in these terms"When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decision likewisesame view was expressed by their Lordships of the Privy Council in R.M.A.R.A. Adaikappa Chettiar v. Ra. Chandrasekhara Thevar ((1947) 74 IA 264), wherein it wasa legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right ofin Secretary of State for India v. Chellikani Ram Rao (1916 ILR 39 Mad 617), when dealing with the case under the Madras Forest Act their Lordships observed aswas contended on behalf of the appellant that all further proceedings in courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships opinion this objection is not well founded. Their view is that when proceedings of this character reach the District Court, that court is appealed to as one of the ordinary courts of the country, with regard to whose procedure, orders, and decrees the ordinary rules of the Civil Procedure Codethe facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the present case. Section 76 of the Trademarks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by Section 76 it has exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a Single Judge, his judgment becomes subject to appeal under clause 15 of the letters patent there being nothing to the contrary in the Trademarks Act."
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M/S.L.R.BROTHERS,INDO FLORA LTD. Vs. COMMISSIONER OF CENTRAL EXCISE | the said provision is remedial in nature and not clarificatory, since prior to the amendment, the rights and liabilities accrued were sought to be taken away. Paragraph 24 of the said decision is reproduced below: 24. On a conspectus of the aforesaid decisions, it becomes clear that Section 28, being substantive law, operates prospectively, as retrospectivity is not clearly made out by its language. Being remedial in nature, and not clarificatory or declaratory of the law, by making certain agreements covered by Section 28(b) void for the first time, it is clear that rights and liabilities that have already accrued as a result of agreements entered into between parties are sought to be taken away. This being the case, we are of the view that both the Single Judge and the Division Bench were in error in holding that the amended Section 28 would apply. We are in agreement with the respondent that this decision squarely applies to the present case as prior to the amendment, the DTA sales made by the appellant have already attracted liability at the prescribed charging rate, which in facts of the present case cannot be undone in reference to the subject amendment. 32. It is relevant here to advert to a decision of Constitution Bench of this Court in Commissioner of Central Excise, New Delhi vs. Hari Chand Shri Gopal & Ors. (2011) 1 SCC 236 , wherein it has been held that an exemption clause ought to be strictly construed according to the language employed therein and in case of any ambiguity, benefit must go to the State. It will be useful to reproduce paragraphs 29 and 30 of the aforesaid decision hereunder: 29. The law is well settled that a person who claims exemption or concession has to establish that he is entitled to that exemption or concession. A provision providing for an exemption, concession or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the statute and the object and purpose to be achieved. If exemption is available on complying with certain conditions, the conditions have to be complied with. The mandatory requirements of those conditions must be obeyed or fulfilled exactly, though at times, some latitude can be shown, if there is a failure to comply with some requirements which are directory in nature, the non- compliance of which would not affect the essence or substance of the notification granting exemption. 30. In Novopan India Ltd. this Court held that a person, invoking an exception or exemption provisions, to relieve him of tax liability must establish clearly that he is covered by the said provisions and, in case of doubt or ambiguity, the benefit of it must go to the State. A Constitution Bench of this Court in Hansraj Gordhandas v. CCE and Customs held that (Novopan India Ltd. case, SCC p. 614, para 16) 16. … such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification i.e. by the plain terms of the exemption. Applying the aforequoted dictum to the present case, the appellant was obliged to comply with the conditions prescribed by the EXIM Policy, to avail the exemption under the stated notification; and failure to do so, must denude them of the exemption so granted. Further, since the charging rate prescribed under the exemption notification is under question, any ambiguity in regard to the date of application of the amendment thereto would necessarily have to be construed in favour of the State, unless shown otherwise by judicially acceptable parameters. 33. The next contention of the appellant is that Section 28 of the 1962 Act cannot be invoked to extend the limitation as there was no wilful mis-statement or suppression of facts on behalf of the appellant. The decision of this Court in Uniworth Textiles (supra), has been relied upon by the appellant. The same explains the situations in which Section 28 of the 1962 Act can be invoked. It had been held in the said decision that the extension of limitation for a period of five years can be done only in cases of deliberate default and not inadvertent non-payment. It was further held that the burden for proving mala fide conduct is on the revenue; and specific averments in that regard must find place in the show cause notice. 34. In the fact situation of the present case, the appellant was issued a show cause notice mentioning that it had suppressed the DTA sales of cut flowers to evade payment of duty. Had the appellant in good faith believed that no duty was payable upon the DTA sales of cut flowers, it would have sought prior approval of the Development Commissioner, which it failed to do. Even in the letter seeking ex-post facto approval, the appellant claimed that they had not used any imported input such as fertilizer, plant growth regulations, etc. in growing flowers sold in DTA, despite having imported green house equipment, raw materials like Live Rose Plants and consumables like planting materials and fertilizers. Therefore, it prima facie appeared that suppression by the appellant was wilful. The burden of proving to the contrary rested upon the appellant, which the appellant failed to discharge by failing to establish that the imported inputs were not used in the production of the cut flowers sold in DTA. In view thereof, the authorities below have rightly invoked Section 28 of the 1962 Act and allied provisions. 35. In light of the foregoing discussion and observations, we are of the view that CESTAT has rightly upheld the levy of customs duty. | 0[ds]12. A bare perusal of the above notification would evince that apart from providing for duty free imports of inputs for an 100% EOU in order to export all the goods produced or manufactured by it, in addition, it also gives liberty to the 100% EOUs to clear their goods in DTA to the extent permissible by and in accordance with the EXIM policy. The EXIM policy, at paragraph 9.9 provided that for earning an entitlement to make sales in DTA, the unit has to maintain positive net foreign exchange earning. The calculation of net foreign exchange earning, as defined at paragraph 9.29, is provided for at paragraph 9.5 of the Policy, which had to be done as prescribed in Appendix I of the Policy. In case of cut flowers, it has been fixed at 20% since it would come within the category of Products not covered above.13. On a combined reading of the notification with the conditions laid down in the EXIM policy, it is clear that the fulfilment of the aforesaid conditions is a condition precedent to become eligible to make DTA sales. Resultantly, if goods are cleared in DTA sales in breach of the aforesaid conditions, customs duty would be leviable, as if such goods were imported goods.This ground finds support in the decision of larger bench of the CEGAT in Vikram Ispat (supra), which the appellant relies upon. In paragraph 16 of the said decision, it has been held as under:16. Notification No. 2/95-C.E., dated 4-1-95 provides that the goods manufactured and cleared by a 100% E.O.U. to DTA will be exempted from so much of duty of excise as is in excess of the amount calculated at the rate of 50% of each of duty of customs leviable read with any other notification for the time being in force on the like goods produced or manufactured outside India, if imported into India provided that the amount of duty payable shall not be less than the duty of excise leviable on like goods produced or manufactured by the units in Domestic Tariff Area read with any relevant notification. It is, thus apparent that notification No. 2/95 provides a minimum limit of the rate of duty which has to be paid by the 100% E.O.U. while clearing the goods to DTA and this limit is provided by the duty of excise leviable on like good manufactured outside 100% E.O.U. However, if the aggregate of duty customs leviable on goods cleared by 100% E.O.U. is more than the duty of excise leviable on like goods, a 100% E.O.U. has to pay more duty. The Revenue wants to restrict the availment of Modvat credit to the components of additional duty of customs paid under Section 3 of the Customs Tariff Act by bringing the fiction that 100% E.O.U. is a place which is not in India and the sale therefrom within India is akin to import into India. We do not find any substance in this view of the Revenue. The clearance of the goods by 100% E.O.U. are not import in the terms in which it has been defined under Section 2 (23) of the Customs Act, according to which import, with its grammatical and cogent expression means bringing into India from a place outside India. This is also apparent from the fact that when the goods are cleared from 100% E.O.U. to any place in India, central excise duty under Section 3(1) of the Central Excise Act is levied and not the customs duty under the Customs Act. If it is to be regarded as import, then the duty has to be charged under Section 12 of the Customs Act, read with Section 3 of the Customs Tariff Act. The Revenue, it seems is confusing the measure of the tax with the nature of the tax. The nature of the duty levied on the goods from 100% E.O.U. is excise duty and nothing else, whereas for determining the quantum of duty the measure adopted is duty leviable under Customs Act as held by the Supreme Court in many cases referred to above. The method adopted by the law makers in recovering the tax cannot alter its character. Once it is held that the duty paid by the 100% E.O.U. in respect of goods cleared to any place in India is excise duty, the question of dissecting the said duty into different components of basic customs duty, auxiliary duty, additional duty of Customs or any other customs duty does not arise. The proforma of AR-1A on which the reliance was placed by the learned D.R., cannot change the legal position that the duty levied on 100% E.O.U. is a duty of excise and not customs duty.However, this exposition has no application to the fact situation of the present case, in as much as there had been no contravention of conditions of EXIM Policy and the issue was only about the nature of tax, in case of goods otherwise amenable to excise duty.15. Concededly, the DTA sales pertaining to excisable goods made in conformity with the conditions of the EXIM policy are exigible to excise duty, but once there is contravention of the condition(s) of the EXIM policy, irrespective of the goods produced being excisable or non-excisable, the benefit under the exemption notification is unavailable. In such a situation, the very goods would become liable to imposition of customs duty as if being imported goods.Assuming there was no contravention of the EXIM policy, in case of the goods cleared being non excisable, the Paragraph 3 of the exemption notification would come into play and the duty would be leviable on the inputs used in such goods. It is relevant to bear in mind Section 12 of the 1962 Act here, being the charging sectionIt is clear from the above provision that the goods which are imported shall be charged as specified under the Customs Tariff Act, 1975 or any other law, unless exempted under the 1962 Act or by any other law.17. In the present case, the notification provides for exemption on import of inputs and at the same time prescribes for adherence of certain conditions for availing the exemption. The notification further prescribes the rate at which the customs duty on the inputs used in the production of non-excisable goods sold in DTA is to be charged. Thus, the notification, having been issued in exercise of delegated legislation under Section 25 of the 1962 Act, has to be understood as any other law. Resultantly, the appellant, having availed exemption under the notification, cannot evade customs duty on the imported inputs at the rate prescribed by the notification.18. The show cause notice points out that the appellant imported raw materials like Live Rose Plants and consumables like fertilizers and planting materials, however, the appellant advisedly chose to confine its argument to cut flowers, which, as contended, were grown on Indian soil and thus not amenable to customs duty. However, the demand made in the show cause notice treating cut flowers as deemed to have been imported was only for the purpose of quantification of the customs duty on the imported inputs and not imposition of the customs duty on the domestically grown cut flowers as such.19. The decision of CESTAT in the case of Cosco Blossoms (supra) is of no avail to the appellant. In that case, the tribunal had relied upon the decision in Vikram Ispat (supra) and held that the cut flowers cleared in DTA sales cannot be charged with customs duty, without considering that the goods were non excisable. Notably, the Tribunal had granted liberty to the authorities to charge customs duty upon the imported inputs, if used in production of the goods cleared in DTA, which supports the case of the respondent.20. A priori, the demand in the present case, pertaining to the non-excisable goods has rightly been made under the 1962 Act upon the imported inputs used in the production of goods sold in DTA in violation of condition(s) in the EXIM Policy.21. The decision of CESTAT in Suresh Synthetics (supra) is not applicable to the present case. The goods in that case were Polyster Textured Yarn, which are excisable goods. The investigations were made as per provisions of the Central Excise Act, 1944 (For short, the 1944 Act), however, show cause notice was issued under provisions of the 1962 Act. Thus, it was held that the demand is not maintainable as it was made under a defective show cause notice.22. In case of excisable goods, even the present notification takes resort to Section 3 of the 1944 Act, as can be seen from the Paragraph 3 of the notification extracted above. Whereas, the provisions of the 1962 Act are invoked only when the goods are non-excisable. In the present case, since the cut flowers are non- excisable goods, the demand for payment of customs duty had rightly been made vide show cause notice under the provisions of the 1962 Act.23. Moving to the second question, the show cause notice was issued to the appellant prior to the issuance of the amendment notification.24. As can be seen, the aforesaid notification posits of carrying out amendments and substituting the charging clause of the inputs used in case of non-excisable goods. The language employed in the notification does not offer any guidance on whether the amendments as made were to apply prospectively or retrospectively. It is a settled proposition of law that all laws are deemed to apply prospectively unless either expressly specified to apply retrospectively or intended to have been done so by the legislature. The latter would be a case of necessary implication and it cannot be inferred lightly.26. Upon a bare reading of the circular, it can be noted that it discusses the mechanism in force before the amendment, the reason for bringing in the change and the changes brought in. The circular does not mention that the earlier methodology in force was deficient or devoid of clarity in any manner. It rather says that the same was being disadvantageous to the EOU units as compared to the DTA units due to the difference in charging rates in the respective circulars. Upon considering that, the amendment has been brought in to establish parity with the excise notifications and to vindicate the disadvantage that earlier regime was causing to EOU units. Merely because an anomaly has been addressed, it cannot be passed off as an error having been rectified. Unless shown otherwise, it has to be seen as a conscious change in the dispensation, particularly concerning the fiscal subject matters. The word anomaly has been defined ins New Twentieth Century Dictionary to mean abnormality; irregularity; deviation from the regular arrangement, general rule or the usual method.27. In the context of the subject circular, since it takes note of the previous arrangement and distinguishes it from the excise notifications, the meaning has to be taken as deviation from the regular arrangement, which by no stretch of imagination can be treated as a mere mistake. To call the amendment notification clarificatory or curative in nature, it would require that there had been an error/mistake/omission in the previous notification which is merely sought to be explained.28. To understand if the Government brought in the amendment notification to clarify that the articles were to be charged at the rate of duty provided for inputs and not for the final articles, it would be necessary to analyse the position prior to the amendment and to see if duty on inputs chargeable at the rate of final articles was an error that crept in.The proviso to the charging section of the 1944 Act provides that an EOU making DTA sales shall be charged duty as if the goods were imported into India and in value equal to the customs duty chargeable thereto. No doubt, the said provision applies only in cases of excisable goods, but the exemption notification providing for similar duty by terms thereunder for non-excisable goods, can be understood to have been made to equate the duty in case of excisable as well as non-excisable goods. Therefore, it must follow that the said provision was not an error that crept in but was intentionally introduced by the Government to determine the charging rate, as discussed above. That being the position prior to amendment, the amendment brought in cannot be said to be clarificatory in nature.29. The decision of this Court in Zile Singh (supra) is of no avail to the appellant. In as much as it was a case of poor choice of words by the draftsmen, which led to absurdity in interpretation and a subsequent substitution of such words to make the intention clear. In the present case, as discussed above, there was no error present in the prevailing dispensation and it was a policy decision to give relief to the EOU units from the date of its amendment.30. In Vatika Township (supra), Constitution Bench of this Court has analysed the principle concerning retrospectivity. The appellant heavily relies upon the observation made at paragraph 30 of the decision, which reads thus:30. ... If a legislation confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on the public generally, and where to confer such benefit appears to have been the object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. ….The appellant clearly misinterprets the context of the above observation by reading the same in isolation.Upon reading the observations at Paragraph 30 and juxtaposed with paragraph 32, it is crystal clear that an essential requirement for application of a legislation retrospectively is to show that the previous legislation had any omission or ambiguity or it was intended to explain an earlier act. In absence of the above ingredients, a legislation cannot be regarded as having retrospective effect.31. In IndusInd Bank (supra), this Court, while examining whether the amendment made to Section 28 of the Indian Contract Act, 1872 was prospective or retrospective, has noted that the said provision is remedial in nature and not clarificatory, since prior to the amendment, the rights and liabilities accrued were sought to be taken away. Paragraph 24 of the said decision is reproduced below:24. On a conspectus of the aforesaid decisions, it becomes clear that Section 28, being substantive law, operates prospectively, as retrospectivity is not clearly made out by its language. Being remedial in nature, and not clarificatory or declaratory of the law, by making certain agreements covered by Section 28(b) void for the first time, it is clear that rights and liabilities that have already accrued as a result of agreements entered into between parties are sought to be taken away. This being the case, we are of the view that both the Single Judge and the Division Bench were in error in holding that the amended Section 28 would apply.We are in agreement with the respondent that this decision squarely applies to the present case as prior to the amendment, the DTA sales made by the appellant have already attracted liability at the prescribed charging rate, which in facts of the present case cannot be undone in reference to the subject amendment.32. It is relevant here to advert to a decision of Constitution Bench of this Court in Commissioner of Central Excise, New Delhi vs. Hari Chand Shri Gopal & Ors. (2011) 1 SCC 236 , wherein it has been held that an exemption clause ought to be strictly construed according to the language employed therein and in case of any ambiguity, benefit must go to the State. It will be useful to reproduce paragraphs 29 and 30 of the aforesaid decision hereunder:29. The law is well settled that a person who claims exemption or concession has to establish that he is entitled to that exemption or concession. A provision providing for an exemption, concession or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the statute and the object and purpose to be achieved. If exemption is available on complying with certain conditions, the conditions have to be complied with. The mandatory requirements of those conditions must be obeyed or fulfilled exactly, though at times, some latitude can be shown, if there is a failure to comply with some requirements which are directory in nature, the non- compliance of which would not affect the essence or substance of the notification granting exemption.30. In Novopan India Ltd. this Court held that a person, invoking an exception or exemption provisions, to relieve him of tax liability must establish clearly that he is covered by the said provisions and, in case of doubt or ambiguity, the benefit of it must go to the State. A Constitution Bench of this Court in Hansraj Gordhandas v. CCE and Customs held that (Novopan India Ltd. case, SCC p. 614, para 16)16. … such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification i.e. by the plain terms of the exemption.Applying the aforequoted dictum to the present case, the appellant was obliged to comply with the conditions prescribed by the EXIM Policy, to avail the exemption under the stated notification; and failure to do so, must denude them of the exemption so granted. Further, since the charging rate prescribed under the exemption notification is under question, any ambiguity in regard to the date of application of the amendment thereto would necessarily have to be construed in favour of the State, unless shown otherwise by judicially acceptable parameters.34. In the fact situation of the present case, the appellant was issued a show cause notice mentioning that it had suppressed the DTA sales of cut flowers to evade payment of duty. Had the appellant in good faith believed that no duty was payable upon the DTA sales of cut flowers, it would have sought prior approval of the Development Commissioner, which it failed to do. Even in the letter seeking ex-post facto approval, the appellant claimed that they had not used any imported input such as fertilizer, plant growth regulations, etc. in growing flowers sold in DTA, despite having imported green house equipment, raw materials like Live Rose Plants and consumables like planting materials and fertilizers. Therefore, it prima facie appeared that suppression by the appellant was wilful. The burden of proving to the contrary rested upon the appellant, which the appellant failed to discharge by failing to establish that the imported inputs were not used in the production of the cut flowers sold in DTA. In view thereof, the authorities below have rightly invoked Section 28 of the 1962 Act and allied provisions.35. In light of the foregoing discussion and observations, we are of the view that CESTAT has rightly upheld the levy of customs duty. | 0 | 10,666 | 3,537 | ### Instruction:
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the said provision is remedial in nature and not clarificatory, since prior to the amendment, the rights and liabilities accrued were sought to be taken away. Paragraph 24 of the said decision is reproduced below: 24. On a conspectus of the aforesaid decisions, it becomes clear that Section 28, being substantive law, operates prospectively, as retrospectivity is not clearly made out by its language. Being remedial in nature, and not clarificatory or declaratory of the law, by making certain agreements covered by Section 28(b) void for the first time, it is clear that rights and liabilities that have already accrued as a result of agreements entered into between parties are sought to be taken away. This being the case, we are of the view that both the Single Judge and the Division Bench were in error in holding that the amended Section 28 would apply. We are in agreement with the respondent that this decision squarely applies to the present case as prior to the amendment, the DTA sales made by the appellant have already attracted liability at the prescribed charging rate, which in facts of the present case cannot be undone in reference to the subject amendment. 32. It is relevant here to advert to a decision of Constitution Bench of this Court in Commissioner of Central Excise, New Delhi vs. Hari Chand Shri Gopal & Ors. (2011) 1 SCC 236 , wherein it has been held that an exemption clause ought to be strictly construed according to the language employed therein and in case of any ambiguity, benefit must go to the State. It will be useful to reproduce paragraphs 29 and 30 of the aforesaid decision hereunder: 29. The law is well settled that a person who claims exemption or concession has to establish that he is entitled to that exemption or concession. A provision providing for an exemption, concession or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the statute and the object and purpose to be achieved. If exemption is available on complying with certain conditions, the conditions have to be complied with. The mandatory requirements of those conditions must be obeyed or fulfilled exactly, though at times, some latitude can be shown, if there is a failure to comply with some requirements which are directory in nature, the non- compliance of which would not affect the essence or substance of the notification granting exemption. 30. In Novopan India Ltd. this Court held that a person, invoking an exception or exemption provisions, to relieve him of tax liability must establish clearly that he is covered by the said provisions and, in case of doubt or ambiguity, the benefit of it must go to the State. A Constitution Bench of this Court in Hansraj Gordhandas v. CCE and Customs held that (Novopan India Ltd. case, SCC p. 614, para 16) 16. … such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification i.e. by the plain terms of the exemption. Applying the aforequoted dictum to the present case, the appellant was obliged to comply with the conditions prescribed by the EXIM Policy, to avail the exemption under the stated notification; and failure to do so, must denude them of the exemption so granted. Further, since the charging rate prescribed under the exemption notification is under question, any ambiguity in regard to the date of application of the amendment thereto would necessarily have to be construed in favour of the State, unless shown otherwise by judicially acceptable parameters. 33. The next contention of the appellant is that Section 28 of the 1962 Act cannot be invoked to extend the limitation as there was no wilful mis-statement or suppression of facts on behalf of the appellant. The decision of this Court in Uniworth Textiles (supra), has been relied upon by the appellant. The same explains the situations in which Section 28 of the 1962 Act can be invoked. It had been held in the said decision that the extension of limitation for a period of five years can be done only in cases of deliberate default and not inadvertent non-payment. It was further held that the burden for proving mala fide conduct is on the revenue; and specific averments in that regard must find place in the show cause notice. 34. In the fact situation of the present case, the appellant was issued a show cause notice mentioning that it had suppressed the DTA sales of cut flowers to evade payment of duty. Had the appellant in good faith believed that no duty was payable upon the DTA sales of cut flowers, it would have sought prior approval of the Development Commissioner, which it failed to do. Even in the letter seeking ex-post facto approval, the appellant claimed that they had not used any imported input such as fertilizer, plant growth regulations, etc. in growing flowers sold in DTA, despite having imported green house equipment, raw materials like Live Rose Plants and consumables like planting materials and fertilizers. Therefore, it prima facie appeared that suppression by the appellant was wilful. The burden of proving to the contrary rested upon the appellant, which the appellant failed to discharge by failing to establish that the imported inputs were not used in the production of the cut flowers sold in DTA. In view thereof, the authorities below have rightly invoked Section 28 of the 1962 Act and allied provisions. 35. In light of the foregoing discussion and observations, we are of the view that CESTAT has rightly upheld the levy of customs duty.
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and where to confer such benefit appears to have been the object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. ….The appellant clearly misinterprets the context of the above observation by reading the same in isolation.Upon reading the observations at Paragraph 30 and juxtaposed with paragraph 32, it is crystal clear that an essential requirement for application of a legislation retrospectively is to show that the previous legislation had any omission or ambiguity or it was intended to explain an earlier act. In absence of the above ingredients, a legislation cannot be regarded as having retrospective effect.31. In IndusInd Bank (supra), this Court, while examining whether the amendment made to Section 28 of the Indian Contract Act, 1872 was prospective or retrospective, has noted that the said provision is remedial in nature and not clarificatory, since prior to the amendment, the rights and liabilities accrued were sought to be taken away. Paragraph 24 of the said decision is reproduced below:24. On a conspectus of the aforesaid decisions, it becomes clear that Section 28, being substantive law, operates prospectively, as retrospectivity is not clearly made out by its language. Being remedial in nature, and not clarificatory or declaratory of the law, by making certain agreements covered by Section 28(b) void for the first time, it is clear that rights and liabilities that have already accrued as a result of agreements entered into between parties are sought to be taken away. This being the case, we are of the view that both the Single Judge and the Division Bench were in error in holding that the amended Section 28 would apply.We are in agreement with the respondent that this decision squarely applies to the present case as prior to the amendment, the DTA sales made by the appellant have already attracted liability at the prescribed charging rate, which in facts of the present case cannot be undone in reference to the subject amendment.32. It is relevant here to advert to a decision of Constitution Bench of this Court in Commissioner of Central Excise, New Delhi vs. Hari Chand Shri Gopal & Ors. (2011) 1 SCC 236 , wherein it has been held that an exemption clause ought to be strictly construed according to the language employed therein and in case of any ambiguity, benefit must go to the State. It will be useful to reproduce paragraphs 29 and 30 of the aforesaid decision hereunder:29. The law is well settled that a person who claims exemption or concession has to establish that he is entitled to that exemption or concession. A provision providing for an exemption, concession or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the statute and the object and purpose to be achieved. If exemption is available on complying with certain conditions, the conditions have to be complied with. The mandatory requirements of those conditions must be obeyed or fulfilled exactly, though at times, some latitude can be shown, if there is a failure to comply with some requirements which are directory in nature, the non- compliance of which would not affect the essence or substance of the notification granting exemption.30. In Novopan India Ltd. this Court held that a person, invoking an exception or exemption provisions, to relieve him of tax liability must establish clearly that he is covered by the said provisions and, in case of doubt or ambiguity, the benefit of it must go to the State. A Constitution Bench of this Court in Hansraj Gordhandas v. CCE and Customs held that (Novopan India Ltd. case, SCC p. 614, para 16)16. … such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification i.e. by the plain terms of the exemption.Applying the aforequoted dictum to the present case, the appellant was obliged to comply with the conditions prescribed by the EXIM Policy, to avail the exemption under the stated notification; and failure to do so, must denude them of the exemption so granted. Further, since the charging rate prescribed under the exemption notification is under question, any ambiguity in regard to the date of application of the amendment thereto would necessarily have to be construed in favour of the State, unless shown otherwise by judicially acceptable parameters.34. In the fact situation of the present case, the appellant was issued a show cause notice mentioning that it had suppressed the DTA sales of cut flowers to evade payment of duty. Had the appellant in good faith believed that no duty was payable upon the DTA sales of cut flowers, it would have sought prior approval of the Development Commissioner, which it failed to do. Even in the letter seeking ex-post facto approval, the appellant claimed that they had not used any imported input such as fertilizer, plant growth regulations, etc. in growing flowers sold in DTA, despite having imported green house equipment, raw materials like Live Rose Plants and consumables like planting materials and fertilizers. Therefore, it prima facie appeared that suppression by the appellant was wilful. The burden of proving to the contrary rested upon the appellant, which the appellant failed to discharge by failing to establish that the imported inputs were not used in the production of the cut flowers sold in DTA. In view thereof, the authorities below have rightly invoked Section 28 of the 1962 Act and allied provisions.35. In light of the foregoing discussion and observations, we are of the view that CESTAT has rightly upheld the levy of customs duty.
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Balkrishna Savalram Pujari And Others Vs. Shree Dnyaneshwar Maharajsansthan & Others | their dispossession continued, it cannot be said that the trustees were committing wrongful acts or acts of tort from moment to moment so as to give the appellants a cause of action de die in diem.We think there can be no doubt that where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of S. 23 in such a case.That is the view which the High Court has taken and we see no reason to differ from it.32. We would now like to refer to some of the decisions which were cited before us on this point. The first case which is usually considered in dealing with the application of S. 23 is the decision of the Privy Council in Maharani Rajroop Koer v. Syed Abdul Hossein, 7 Ind App 240. In order to appreciate this decision it is necessary to refer, though briefly, to the material facts. The plaintiff had succeeded in establishing his right to the pyne or an artificial watercourse and to the use of the water flowing through it except that which flowed through the branch channel; he had, however, failed to prove his right to the water in the tal except to the overflow after the defendants as owners of mouzah Morahad used the water for the purpose of irrigating their own land. It was found that all the obstructions by the defendants were unauthorised and in fact the plaintiff had succeeded in the courts below in respect of all the obstruction except two which were numbered No. 3 and No. 10. No. 3 was a khund or channel cut in the side of the pyne at a point below the bridge whereas No. 10 was a dhonga also below the bridge and it consisted of hollow palm bees so placed as to draw off water in the pyne for the purpose of irrigating the defendants lands. It was in regard to these two obstructions that the question about the continuing wrong fell to be considered; and the Privy Council held that the said obstructions which interfered with the flow of water to the plaintiffs mehal were in the nature of continuing nuisance as to which the cause of action was renewed de die in diem so long as the obstructions causing such interference were allowed to continue. That is why the Privy Council allowed the plaintiffs claim in respect of these two obstructions and reversed the decree passed by the High Court in that behalf. In fact the conduct of the defendant showed that whenever he drew off water through the said diversions he was in fact stealing plaintiffs water and thereby committing fresh wrong every time. Thus this is clearly not a case of exclusion or ouster.33. Similarly, in Hukum Chand v. Maharaj Bahadur Singh, 60 Ind App 313: (AIR 1933 PC 193 ), the Privy Council was dealing with a case where the defendants act clearly amounted to a continuing wrong and helped the plaintiff in getting the benefit of S. 23. The relevant dispute in that case arose because alterations had been made by the Swetamvaris in the character of the charans in certain shrines and the Digambaris complained that the said alterations amounted to an interference with their rights. It had been found by the courts in India that the charans in the old shrines were the impressions of the footprints of the saints each bearing a lotus mark. "The Swetambaris who preferred to worship the feet themselves have evolved another form of charan not very easy to describe accurately in the absence of models or photographs which shows toe nails and must be taken to be a representation of part of the foot. This the Digambaris refused to worship as being a representation of a detached part of the human body". The courts had also held that the action of the Swetambaris in placing the charans of the said description in three of the shrines was a wrong which the Digambaris were entitled to complain. The question which the Privy Council, had to consider was whether the action of the Swetambaris in placing the said charans in three of the shrines was a continuing wrong or not; and in answering this question in favour of the plaintiffs the Privy Council referred to its earlier decision in the case of Maharani Rajroop Koer (supra) and held that the action in question was a continuing wrong. There is no doubt that the impugned action did not amount to ouster or complete dispossession of the plaintiffs. It was action which was of the character of a continuing wrong and as such it gave rise to a cause of action de die in diem. In our opinion, neither of these two decisions can be of any assistance to the appellants.34. On the other hand the decision of the Patna High Court in Bibhuti Narayan Singh v. Mahadev Asram, ILR 19 Pat 208: (AIR 1940 Pat 449 ) as well as that of the Full Bench of the Punjab High Court in Khair Mohammad Khan v. Mst. Jannat, ILR (1941) 22 Lah 22: (AIR 1940 Lah 359) support the respondents contention that where the impugned act amounts to ouster there is no scope for the application of S. 23 of the Limitation Act. We are, therefore, satisfied that there is no substance in the appellants contention that S. 23 helps to save limitation for their suits.35. The result no doubt is unfortunate. The appellants have succeeded in both the courts below in proving their rights as hereditary worshippers; but their claim must be rejected on the ground that they have filed their suits beyond time. In this court an attempt was made by the parties to see if this long drawn out litigation could be brought to an end on reasonable terms agreed to by them, but it did not succeed. | 0[ds]The trustees, on the other hand, cannot be said to have taken possession of the office themselves adversely in the appellants. They do not take the profits themselves nor do they perform the duties associated with the said office. They have, in exercise of their authority and power as trustees, dismissed the appellants predecessors from office and have made fresh appointments of servants to perform the worship at the Sansthan; and, in making the said appointments, have in fact destroyed the hereditary character of the office.The dispute in the present appeals is between the worshippers who claim hereditary rights and the trustees of the institution who claim to have validly terminated. the services of some of the predecessors of the appellants and to have made valid appointments to the said officer.It is, therefore, impossible to accept the argument that the claim made by the appellants in their respective suits attracts the provisions of Art. 124. It is conceded by Mr. Rege that if Art. 124 does not apply, the suits would be governed by Art. 120 which is a residuary article. It may prima facie appear somewhat strange that whereas a suit against a person claiming to hold the hereditary office adversely to the plaintiff is governed by a period of twelve years, a claim against the trustees like the respondents in the present appeals who have dismissed the hereditary worshippers should be governed by a period of six years. It may be possible to suggest that there is a substantial difference in the nature of the two disputes; but apart from it, it is well known that the artificial provisions of limitation do not always satisfy the test of logic oris explained to mean that the hereditary office is possessed when the profits thereof are usually received or (if there are no profits) when the duties thereof are usually performed.It is clear that before this Article can apply it must be shown that the suit makes claim for possession of an office which is hereditary; and the claim must be made against the defendant who has taken possession of the said hereditary office adversely to the plaintiff. Unlike Art. 142 the fact that the plaintiff is out of possession of the hereditary office for more than twelve years before the date of his suit would not defeat his claim for possession of the said office. What would defeat his claim is the adverse possession of the said office by the defendant for the prescribed period. As the explanation makes it clear usually the receipt of the profits may amount to the possession of the office; but if the defendant merely receives the profits but does not perform the duties which are usually performed by the holder of the office, the receipt of the profits by itself may not amount to the possession of office. The cause of action for possession in suits falling under Art. 124 is the wrongful dispossession of the plaintiff and the adverse possession by the defendant of the office in question. Claims for possession of hereditary offices which attract the application of this Article are usually made by holders of the said offices against persons who claim adverse possession of the said offices; in other words, in suits of this kind, the contest is usually between rival claimants to the hereditary office in question.Mr. Rege, however, argued that in determining the scope of Art. 124 we need not consider the provisions of col. 3 to the said Article. His contention appears to be that once it is shown that the suit is for possession of an hereditary office, Art. 124 must apply though the claim for possession may not have been made against a person who has taken possession of the office adversely to the plaintiff. He also urged alternatively that the trustees should be deemed to have taken possession of the office adversely to the appellants.We have already held that the conduct of the trustees shows that they have not taken possession of the office adversely within the meaning of col. 3 of Art. 124; and we do not think it is possible to ignore the provision of col. 3 in deciding whether or not Art. 124is true that in Jalim Singh v. Choonee Lall 15 Cal WN 882, while holding that the adjustment on which the plaintiffs claim was based in that case was in time both under Arts. 115 and 120, Jenkins C. J, has observed that the function of the third column of the second schedule is not to define causes of action but to fix the starting point from which the period of limitation is to be counted; but this observation does not support the appellants case that Art. 124 would govern the suit even though the third column is wholly inapplicable to it. That obviously is not the effect of the observations made in Jalim Singhs case (supra).23. The question about the nature and scope of the provisions of Art. 124 has been considered by the Madras High Court in Thathachariar v. Singarachariar, AIR 1928 Mad 377 . "If we take into consideration the terminology used in the three columns of Art. 124", observed Srinivasa Aiyangar J., in that case, "it is clear that the nature of the suit intended to be covered by that article must be a suit filed by a plaintiff who claims the office from a person who at that time holds the office himself." In our opinion this view ismust, therefore, hold that Art. 124 does not apply to the suits filed by the appellants; and as we have already observed, if Art. 124 does apply, Art. 120 does.On these facts the High Court has held in favour of the appellants, and rightly, we think, that it was difficult to accept the respondents contention that the cause of action for the present suits which were expressly based upon the status of the Guravs as hereditary servants arose in 1911. But, the High Court felt no doubt that the cause of action to file the present suits had accrued either on September 12, 1922, when the trustees filed their suit under S. 9 of the Specific Relief Act or in any event on November 4, 1922, when the said suit was decreed and the Guravs were consequently dispossessed. In our opinion this conclusion is also right. One of the Guravs who was examined in the present litigation has stated that, "if in any year when it is the turn of any takshim to serve, if a person outside the Gurav family is appointed by the trustees, all the takshims have a right to object." There is also no dispute that since the dismissal of eleven Guravs in 1911 till the institution of the present suits none from the Gurav family has served the temple except for 3 1/2 months in 1922 when the Guravs had wrongfully obtained possession of the temple. In 1922 the Guravs knew that their claim of ownership had been rejected and that the only right which they could set up was as hereditary worshippers of the temple and not its owners. This right was specifically denied by the trustees in their plaint while it was specifically set up in defence by the Guravs in their written statement; and the decree that followed upheld the trustees case and rejected the defendants claim.On these facts the conclusion is irresistible that the right to sue accrued to the Guravs at the latest on November 4, 1922, when a decree was passed under S. 9 of the Specific Relief Act. If not the plaint in the suit, at least the decree that followed clearly and effectively threatened the Guravs rights as hereditary worshippers and so the cause of action to sue on the strength of the said rights clearly and unambiguously arose at that time. If that be the true position it follows that the present suits which have been filed long after the expiration of six years from 1922 are barred by time under Art.dealing with this argument it is necessary to bear in mind that S. 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that S. 23 can be invoked.Thus considered it is difficult to hold that the trustees act in denying altogether the alleged rights of the Guravs as hereditary worshippers and in claiming and obtaining possession from them by their suit in 1922 was a continuingdecree obtained by the trustees in the said litigation had injured effectively and completely the appellants rights though the damage caused by the said decree subsequently continued. Can it be said that, after the appellants were evicted from the temple in execution of the said decree, the continuance of their dispossession was due to a recurring act of tort committed by the trustees from moment to moment? As soon as the decree was passed and the appellants were dispossessed in execution proceedings, their rights had been completely injured, and though their dispossession continued, it cannot be said that the trustees were committing wrongful acts or acts of tort from moment to moment so as to give the appellants a cause of action de die in diem.We think there can be no doubt that where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of S. 23 in such a case.That is the view which the High Court has taken and we see no reason to differ fromare, therefore, satisfied that there is no substance in the appellants contention that S. 23 helps to save limitation for their suits.35. The result no doubt is unfortunate. The appellants have succeeded in both the courts below in proving their rights as hereditary worshippers; but their claim must be rejected on the ground that they have filed their suits beyond time. In this court an attempt was made by the parties to see if this long drawn out litigation could be brought to an end on reasonable terms agreed to by them, but it did not succeed. | 0 | 8,777 | 1,961 | ### Instruction:
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their dispossession continued, it cannot be said that the trustees were committing wrongful acts or acts of tort from moment to moment so as to give the appellants a cause of action de die in diem.We think there can be no doubt that where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of S. 23 in such a case.That is the view which the High Court has taken and we see no reason to differ from it.32. We would now like to refer to some of the decisions which were cited before us on this point. The first case which is usually considered in dealing with the application of S. 23 is the decision of the Privy Council in Maharani Rajroop Koer v. Syed Abdul Hossein, 7 Ind App 240. In order to appreciate this decision it is necessary to refer, though briefly, to the material facts. The plaintiff had succeeded in establishing his right to the pyne or an artificial watercourse and to the use of the water flowing through it except that which flowed through the branch channel; he had, however, failed to prove his right to the water in the tal except to the overflow after the defendants as owners of mouzah Morahad used the water for the purpose of irrigating their own land. It was found that all the obstructions by the defendants were unauthorised and in fact the plaintiff had succeeded in the courts below in respect of all the obstruction except two which were numbered No. 3 and No. 10. No. 3 was a khund or channel cut in the side of the pyne at a point below the bridge whereas No. 10 was a dhonga also below the bridge and it consisted of hollow palm bees so placed as to draw off water in the pyne for the purpose of irrigating the defendants lands. It was in regard to these two obstructions that the question about the continuing wrong fell to be considered; and the Privy Council held that the said obstructions which interfered with the flow of water to the plaintiffs mehal were in the nature of continuing nuisance as to which the cause of action was renewed de die in diem so long as the obstructions causing such interference were allowed to continue. That is why the Privy Council allowed the plaintiffs claim in respect of these two obstructions and reversed the decree passed by the High Court in that behalf. In fact the conduct of the defendant showed that whenever he drew off water through the said diversions he was in fact stealing plaintiffs water and thereby committing fresh wrong every time. Thus this is clearly not a case of exclusion or ouster.33. Similarly, in Hukum Chand v. Maharaj Bahadur Singh, 60 Ind App 313: (AIR 1933 PC 193 ), the Privy Council was dealing with a case where the defendants act clearly amounted to a continuing wrong and helped the plaintiff in getting the benefit of S. 23. The relevant dispute in that case arose because alterations had been made by the Swetamvaris in the character of the charans in certain shrines and the Digambaris complained that the said alterations amounted to an interference with their rights. It had been found by the courts in India that the charans in the old shrines were the impressions of the footprints of the saints each bearing a lotus mark. "The Swetambaris who preferred to worship the feet themselves have evolved another form of charan not very easy to describe accurately in the absence of models or photographs which shows toe nails and must be taken to be a representation of part of the foot. This the Digambaris refused to worship as being a representation of a detached part of the human body". The courts had also held that the action of the Swetambaris in placing the charans of the said description in three of the shrines was a wrong which the Digambaris were entitled to complain. The question which the Privy Council, had to consider was whether the action of the Swetambaris in placing the said charans in three of the shrines was a continuing wrong or not; and in answering this question in favour of the plaintiffs the Privy Council referred to its earlier decision in the case of Maharani Rajroop Koer (supra) and held that the action in question was a continuing wrong. There is no doubt that the impugned action did not amount to ouster or complete dispossession of the plaintiffs. It was action which was of the character of a continuing wrong and as such it gave rise to a cause of action de die in diem. In our opinion, neither of these two decisions can be of any assistance to the appellants.34. On the other hand the decision of the Patna High Court in Bibhuti Narayan Singh v. Mahadev Asram, ILR 19 Pat 208: (AIR 1940 Pat 449 ) as well as that of the Full Bench of the Punjab High Court in Khair Mohammad Khan v. Mst. Jannat, ILR (1941) 22 Lah 22: (AIR 1940 Lah 359) support the respondents contention that where the impugned act amounts to ouster there is no scope for the application of S. 23 of the Limitation Act. We are, therefore, satisfied that there is no substance in the appellants contention that S. 23 helps to save limitation for their suits.35. The result no doubt is unfortunate. The appellants have succeeded in both the courts below in proving their rights as hereditary worshippers; but their claim must be rejected on the ground that they have filed their suits beyond time. In this court an attempt was made by the parties to see if this long drawn out litigation could be brought to an end on reasonable terms agreed to by them, but it did not succeed.
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provisions of Art. 124 has been considered by the Madras High Court in Thathachariar v. Singarachariar, AIR 1928 Mad 377 . "If we take into consideration the terminology used in the three columns of Art. 124", observed Srinivasa Aiyangar J., in that case, "it is clear that the nature of the suit intended to be covered by that article must be a suit filed by a plaintiff who claims the office from a person who at that time holds the office himself." In our opinion this view ismust, therefore, hold that Art. 124 does not apply to the suits filed by the appellants; and as we have already observed, if Art. 124 does apply, Art. 120 does.On these facts the High Court has held in favour of the appellants, and rightly, we think, that it was difficult to accept the respondents contention that the cause of action for the present suits which were expressly based upon the status of the Guravs as hereditary servants arose in 1911. But, the High Court felt no doubt that the cause of action to file the present suits had accrued either on September 12, 1922, when the trustees filed their suit under S. 9 of the Specific Relief Act or in any event on November 4, 1922, when the said suit was decreed and the Guravs were consequently dispossessed. In our opinion this conclusion is also right. One of the Guravs who was examined in the present litigation has stated that, "if in any year when it is the turn of any takshim to serve, if a person outside the Gurav family is appointed by the trustees, all the takshims have a right to object." There is also no dispute that since the dismissal of eleven Guravs in 1911 till the institution of the present suits none from the Gurav family has served the temple except for 3 1/2 months in 1922 when the Guravs had wrongfully obtained possession of the temple. In 1922 the Guravs knew that their claim of ownership had been rejected and that the only right which they could set up was as hereditary worshippers of the temple and not its owners. This right was specifically denied by the trustees in their plaint while it was specifically set up in defence by the Guravs in their written statement; and the decree that followed upheld the trustees case and rejected the defendants claim.On these facts the conclusion is irresistible that the right to sue accrued to the Guravs at the latest on November 4, 1922, when a decree was passed under S. 9 of the Specific Relief Act. If not the plaint in the suit, at least the decree that followed clearly and effectively threatened the Guravs rights as hereditary worshippers and so the cause of action to sue on the strength of the said rights clearly and unambiguously arose at that time. If that be the true position it follows that the present suits which have been filed long after the expiration of six years from 1922 are barred by time under Art.dealing with this argument it is necessary to bear in mind that S. 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that S. 23 can be invoked.Thus considered it is difficult to hold that the trustees act in denying altogether the alleged rights of the Guravs as hereditary worshippers and in claiming and obtaining possession from them by their suit in 1922 was a continuingdecree obtained by the trustees in the said litigation had injured effectively and completely the appellants rights though the damage caused by the said decree subsequently continued. Can it be said that, after the appellants were evicted from the temple in execution of the said decree, the continuance of their dispossession was due to a recurring act of tort committed by the trustees from moment to moment? As soon as the decree was passed and the appellants were dispossessed in execution proceedings, their rights had been completely injured, and though their dispossession continued, it cannot be said that the trustees were committing wrongful acts or acts of tort from moment to moment so as to give the appellants a cause of action de die in diem.We think there can be no doubt that where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of S. 23 in such a case.That is the view which the High Court has taken and we see no reason to differ fromare, therefore, satisfied that there is no substance in the appellants contention that S. 23 helps to save limitation for their suits.35. The result no doubt is unfortunate. The appellants have succeeded in both the courts below in proving their rights as hereditary worshippers; but their claim must be rejected on the ground that they have filed their suits beyond time. In this court an attempt was made by the parties to see if this long drawn out litigation could be brought to an end on reasonable terms agreed to by them, but it did not succeed.
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The Commissioner Of Income-Tax, Punjab Vs. Shri Thakur Das Bhargava, Advocate, Hissar | appeared for the appellant the proper legal inference is that the amount was received by the assessee as his professional income in respect of which he later created a trust by the deed of trust dated August 6, 1945. He has submitted that there was no trust nor any legal obligation imposed on the assessee by the persons who paid the money, at the time when the money was received which prevented the amount from becoming the professional income of the assessee. He has also contended that even the existence of a trust will make no difference, unless it can be held that the money was delivered to that trust before it could become professional income in the hands of the assessee.7. We think that the question raised in this case can be decided by a very short answer, and that answer is that from the facts found by the Tribunal the proper legal inference is that the sum of Rs. 32,500/- paid to the assessee was his professional income at the time when it was paid and no trust or obligation in the nature of a trust was created at that time, and when the assessee created a trust by the trust deed of August 6, 1945, he applied part of his professional income as trust property.If that is the true conclusion as we hold it to be, then the principle laid down by the Privy Council in Bejoy Singh Dudhurias case, (1933) 1 ITR 135 : (AIR 1933 PC 145 ), has no application. It is indeed true, as has been observed by the High Court, that a trust may be created by any language sufficient to show the intention and no technical words are necessary. A trust may even be created by the use of words which are primarily words of condition, but such words will constitute a trust only "where the requisites of a trust are present, namely, where there are purposes independent of the donee to which the subject matter of the gift is required to be applied and an obligation on the donee to satisfy those purposes". The findings of the Tribunal show clearly enough that the persons who paid the sum of Rs. 32,500/- did not use any words of an imperative nature creating a trust or an obligation. They were anxious to have the services of the assessee in the Farrukhnagar case; the assessee was at first unwilling to give his services and later he agreed proposing that he would himself create a charitable trust out of the money paid to him for defending the accused persons in the Farrukhnagar case. The position is clarified beyond any doubt by the statements made in the trust deed of August 6, 1945.The assessee said therein that he was reserving his professional income as an advocate accruing after June, 1944 for payments of taxes and charity and, accordingly, when he received his professional income in the Farrukhnagar case he created a charitable trust out of the money so received.The clear statement in the trust deed, a statement accepted as correct by the Tribunal, is that the assessee created a trust on certain conditions etc. It is not stated anywhere that the persons who paid the money created a trust or imposed a legally enforceable obligation on the assessee. Even in his affidavit the assessee had stated that "it was agreed that the accused would provide Rs. 40,000/- for a charitable trust which I would create in case I defend them, on an absolutely clear and express understanding that the money would not be used for any private and personal purposes". Even in this affidavit there is no suggestion that the persons who paid the money created the trust or imposed any obligation on the assessee. It was the assessees own voluntary desire that he would create a trust out of the fees paid to him for defending the accused persons in the Farrukhnagar case.Such a voluntary desire on the part of the assessee created no trust, nor did it give rise to any legally enforceable obligation. In the circumstances the Appellate Assistant Commissioner rightly pointed out that "if the accused persons had themselves resolved to create a charitable trust in memory of the professional aid rendered to them by the appellant and had made the assessee trustee for the money so paid to him for that purpose, it could, perhaps, be argued that the money paid was earmarked for charity ab initio but of this there was no indication anywhere".In our opinion the view taken by the Appellate Assistant Commissioner was the correct view. The money when it was received by the assessee was his professional income, though the assessee had expressed a desire earlier to create a charitable trust out of the money when received by him. Once it is held that the amount was received as his professional income, the assessee is clearly liable to pay tax thereon. In our opinion the correct answer to the question referred to the High Court is that the amount of rupees 32,500/- received by the assessee was professional income taxable in his hands.8. Learned counsel for the respondent has referred us to a number of decisions where the principle laid down in Bejoy Singh Dudhurias case, (1933) 1 ITR 135 : (AIR 1933 PC 145 ), was applied, and has contended that where there is an allocation of a sum out of revenue as a result of an overriding title or obligation before it becomes income in the hands of the assessee, the allocation may be the result of a decree of a court, an arbitration award or even the provisions of a will or deed. In view of the conclusion at which we have arrived, the decisions relied upon can hardly help and it is unnecessary to consider them. Our conclusion is that there was no overriding obligation imposed on the assessee at the time when the sum of Rs. 32,500/- was received by him. | 1[ds]7. We think that the question raised in this case can be decided by a very short answer, and that answer is that from the facts found by the Tribunal the proper legal inference is that the sum of Rs. 32,500/- paid to the assessee was his professional income at the time when it was paid and no trust or obligation in the nature of a trust was created at that time, and when the assessee created a trust by the trust deed of August 6, 1945, he applied part of his professional income as trust property.If that is the true conclusion as we hold it to be, then the principle laid down by the Privy Council in Bejoy Singh Dudhurias case, (1933) 1 ITR 135 : (AIR 1933 PC 145 ), has no application. It is indeed true, as has been observed by the High Court, that a trust may be created by any language sufficient to show the intention and no technical words are necessary. A trust may even be created by the use of words which are primarily words of condition, but such words will constitute a trust only "where the requisites of a trust are present, namely, where there are purposes independent of the donee to which the subject matter of the gift is required to be applied and an obligation on the donee to satisfy those purposes". The findings of the Tribunal show clearly enough that the persons who paid the sum of Rs. 32,500/- did not use any words of an imperative nature creating a trust or an obligation. They were anxious to have the services of the assessee in the Farrukhnagar case; the assessee was at first unwilling to give his services and later he agreed proposing that he would himself create a charitable trust out of the money paid to him for defending the accused persons in the Farrukhnagar case. The position is clarified beyond any doubt by the statements made in the trust deed of August 6, 1945.The assessee said therein that he was reserving his professional income as an advocate accruing after June, 1944 for payments of taxes and charity and, accordingly, when he received his professional income in the Farrukhnagar case he created a charitable trust out of the money so received.The clear statement in the trust deed, a statement accepted as correct by the Tribunal, is that the assessee created a trust on certain conditions etc. It is not stated anywhere that the persons who paid the money created a trust or imposed a legally enforceable obligation on the assessee. Even in his affidavit the assessee had stated that "it was agreed that the accused would provide Rs. 40,000/- for a charitable trust which I would create in case I defend them, on an absolutely clear and express understanding that the money would not be used for any private and personal purposes". Even in this affidavit there is no suggestion that the persons who paid the money created the trust or imposed any obligation on the assessee. It was the assessees own voluntary desire that he would create a trust out of the fees paid to him for defending the accused persons in the Farrukhnagar case.Such a voluntary desire on the part of the assessee created no trust, nor did it give rise to any legally enforceable obligation. In the circumstances the Appellate Assistant Commissioner rightly pointed out that "if the accused persons had themselves resolved to create a charitable trust in memory of the professional aid rendered to them by the appellant and had made the assessee trustee for the money so paid to him for that purpose, it could, perhaps, be argued that the money paid was earmarked for charity ab initio but of this there was no indication anywhere".In our opinion the view taken by the Appellate Assistant Commissioner was the correct view. The money when it was received by the assessee was his professional income, though the assessee had expressed a desire earlier to create a charitable trust out of the money when received by him. Once it is held that the amount was received as his professional income, the assessee is clearly liable to pay tax thereon. In our opinion the correct answer to the question referred to the High Court is that the amount of rupees 32,500/- received by the assessee was professional income taxable in his hands.view of the conclusion at which we have arrived, the decisions relied upon can hardly help and it is unnecessary to consider them. Our conclusion is that there was no overriding obligation imposed on the assessee at the time when the sum of Rs. 32,500/- was received by him. | 1 | 2,504 | 845 | ### Instruction:
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appeared for the appellant the proper legal inference is that the amount was received by the assessee as his professional income in respect of which he later created a trust by the deed of trust dated August 6, 1945. He has submitted that there was no trust nor any legal obligation imposed on the assessee by the persons who paid the money, at the time when the money was received which prevented the amount from becoming the professional income of the assessee. He has also contended that even the existence of a trust will make no difference, unless it can be held that the money was delivered to that trust before it could become professional income in the hands of the assessee.7. We think that the question raised in this case can be decided by a very short answer, and that answer is that from the facts found by the Tribunal the proper legal inference is that the sum of Rs. 32,500/- paid to the assessee was his professional income at the time when it was paid and no trust or obligation in the nature of a trust was created at that time, and when the assessee created a trust by the trust deed of August 6, 1945, he applied part of his professional income as trust property.If that is the true conclusion as we hold it to be, then the principle laid down by the Privy Council in Bejoy Singh Dudhurias case, (1933) 1 ITR 135 : (AIR 1933 PC 145 ), has no application. It is indeed true, as has been observed by the High Court, that a trust may be created by any language sufficient to show the intention and no technical words are necessary. A trust may even be created by the use of words which are primarily words of condition, but such words will constitute a trust only "where the requisites of a trust are present, namely, where there are purposes independent of the donee to which the subject matter of the gift is required to be applied and an obligation on the donee to satisfy those purposes". The findings of the Tribunal show clearly enough that the persons who paid the sum of Rs. 32,500/- did not use any words of an imperative nature creating a trust or an obligation. They were anxious to have the services of the assessee in the Farrukhnagar case; the assessee was at first unwilling to give his services and later he agreed proposing that he would himself create a charitable trust out of the money paid to him for defending the accused persons in the Farrukhnagar case. The position is clarified beyond any doubt by the statements made in the trust deed of August 6, 1945.The assessee said therein that he was reserving his professional income as an advocate accruing after June, 1944 for payments of taxes and charity and, accordingly, when he received his professional income in the Farrukhnagar case he created a charitable trust out of the money so received.The clear statement in the trust deed, a statement accepted as correct by the Tribunal, is that the assessee created a trust on certain conditions etc. It is not stated anywhere that the persons who paid the money created a trust or imposed a legally enforceable obligation on the assessee. Even in his affidavit the assessee had stated that "it was agreed that the accused would provide Rs. 40,000/- for a charitable trust which I would create in case I defend them, on an absolutely clear and express understanding that the money would not be used for any private and personal purposes". Even in this affidavit there is no suggestion that the persons who paid the money created the trust or imposed any obligation on the assessee. It was the assessees own voluntary desire that he would create a trust out of the fees paid to him for defending the accused persons in the Farrukhnagar case.Such a voluntary desire on the part of the assessee created no trust, nor did it give rise to any legally enforceable obligation. In the circumstances the Appellate Assistant Commissioner rightly pointed out that "if the accused persons had themselves resolved to create a charitable trust in memory of the professional aid rendered to them by the appellant and had made the assessee trustee for the money so paid to him for that purpose, it could, perhaps, be argued that the money paid was earmarked for charity ab initio but of this there was no indication anywhere".In our opinion the view taken by the Appellate Assistant Commissioner was the correct view. The money when it was received by the assessee was his professional income, though the assessee had expressed a desire earlier to create a charitable trust out of the money when received by him. Once it is held that the amount was received as his professional income, the assessee is clearly liable to pay tax thereon. In our opinion the correct answer to the question referred to the High Court is that the amount of rupees 32,500/- received by the assessee was professional income taxable in his hands.8. Learned counsel for the respondent has referred us to a number of decisions where the principle laid down in Bejoy Singh Dudhurias case, (1933) 1 ITR 135 : (AIR 1933 PC 145 ), was applied, and has contended that where there is an allocation of a sum out of revenue as a result of an overriding title or obligation before it becomes income in the hands of the assessee, the allocation may be the result of a decree of a court, an arbitration award or even the provisions of a will or deed. In view of the conclusion at which we have arrived, the decisions relied upon can hardly help and it is unnecessary to consider them. Our conclusion is that there was no overriding obligation imposed on the assessee at the time when the sum of Rs. 32,500/- was received by him.
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7. We think that the question raised in this case can be decided by a very short answer, and that answer is that from the facts found by the Tribunal the proper legal inference is that the sum of Rs. 32,500/- paid to the assessee was his professional income at the time when it was paid and no trust or obligation in the nature of a trust was created at that time, and when the assessee created a trust by the trust deed of August 6, 1945, he applied part of his professional income as trust property.If that is the true conclusion as we hold it to be, then the principle laid down by the Privy Council in Bejoy Singh Dudhurias case, (1933) 1 ITR 135 : (AIR 1933 PC 145 ), has no application. It is indeed true, as has been observed by the High Court, that a trust may be created by any language sufficient to show the intention and no technical words are necessary. A trust may even be created by the use of words which are primarily words of condition, but such words will constitute a trust only "where the requisites of a trust are present, namely, where there are purposes independent of the donee to which the subject matter of the gift is required to be applied and an obligation on the donee to satisfy those purposes". The findings of the Tribunal show clearly enough that the persons who paid the sum of Rs. 32,500/- did not use any words of an imperative nature creating a trust or an obligation. They were anxious to have the services of the assessee in the Farrukhnagar case; the assessee was at first unwilling to give his services and later he agreed proposing that he would himself create a charitable trust out of the money paid to him for defending the accused persons in the Farrukhnagar case. The position is clarified beyond any doubt by the statements made in the trust deed of August 6, 1945.The assessee said therein that he was reserving his professional income as an advocate accruing after June, 1944 for payments of taxes and charity and, accordingly, when he received his professional income in the Farrukhnagar case he created a charitable trust out of the money so received.The clear statement in the trust deed, a statement accepted as correct by the Tribunal, is that the assessee created a trust on certain conditions etc. It is not stated anywhere that the persons who paid the money created a trust or imposed a legally enforceable obligation on the assessee. Even in his affidavit the assessee had stated that "it was agreed that the accused would provide Rs. 40,000/- for a charitable trust which I would create in case I defend them, on an absolutely clear and express understanding that the money would not be used for any private and personal purposes". Even in this affidavit there is no suggestion that the persons who paid the money created the trust or imposed any obligation on the assessee. It was the assessees own voluntary desire that he would create a trust out of the fees paid to him for defending the accused persons in the Farrukhnagar case.Such a voluntary desire on the part of the assessee created no trust, nor did it give rise to any legally enforceable obligation. In the circumstances the Appellate Assistant Commissioner rightly pointed out that "if the accused persons had themselves resolved to create a charitable trust in memory of the professional aid rendered to them by the appellant and had made the assessee trustee for the money so paid to him for that purpose, it could, perhaps, be argued that the money paid was earmarked for charity ab initio but of this there was no indication anywhere".In our opinion the view taken by the Appellate Assistant Commissioner was the correct view. The money when it was received by the assessee was his professional income, though the assessee had expressed a desire earlier to create a charitable trust out of the money when received by him. Once it is held that the amount was received as his professional income, the assessee is clearly liable to pay tax thereon. In our opinion the correct answer to the question referred to the High Court is that the amount of rupees 32,500/- received by the assessee was professional income taxable in his hands.view of the conclusion at which we have arrived, the decisions relied upon can hardly help and it is unnecessary to consider them. Our conclusion is that there was no overriding obligation imposed on the assessee at the time when the sum of Rs. 32,500/- was received by him.
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Padmakumari Vs. Dasayyan | LR 10 Eq 281] and Charles Rickards Ltd. v. Oppenheim.[ [1950] 1 K.B. 616]." 16. The said legal contention urged on behalf of defendant Nos. 12 to 15 has been strongly rebutted by learned counsel on behalf of the plaintiff contending that the question of payment of balance consideration amount of Rs. 63,000/- within nine months would have arisen after the terms and conditions of the contract agreed upon by defendant Nos. 1 to 11 if they had measured the suit schedule property. They have not discharged their part of the contract stipulated in the agreement to sell, therefore, it is urged by him that time was not the essence of the contract as defendant Nos. 1 to 11 themselves have failed to perform their part of the agreement. 17.The said contention urged on behalf of the plaintiff is unacceptable to us that the question of taking measurement would not arise before the plaintiff perform his part of the contract regarding the balance consideration within the period stipulated in the agreement. Undisputedly, that had not been done by the plaintiff in the instant case within the stipulated time and the notice was issued by the plaintiff only after one year, therefore, the plaintiff has not adhered to the time which is stipulated to pay the balance consideration amount to defendant Nos. 1 to 11 which is very important legal aspect which was required to be considered by the Courts below at the time of determining rights of the parties and pass the impugned judgment. The Courts below have ignored this important aspect of the matter while answering the contentious Issue Nos. 1 and 2 in favour of the plaintiff and granted decree of specific performance in respect of the suit schedule property. The said finding of fact is contrary to the terms and conditions of the agreement, pleadings and the evidence on record. Accordingly, we answer the said issues in favour of defendant Nos. 12 to 15 after setting aside the concurrent finding of fact recorded by the High Court. 18. The second important legal contention raised by defendant Nos. 12 to 15 is that the pleadings of the plaintiff is not in conformity with Order 6 Rule 3 CPC, clause 3 of Form No. 47 in Appendix A, extracted hereinabove. By a careful reading of paragraph 6 of the plaint makes it very clear that the averment as provided under clause 3 is not in stricto sensu complied with by the plaintiff. The same is evidenced from the averments made at paragraph 6 of the plaint which reads thus: ?6. The plaintiff is ready and willing to perform his part of the contract by paying the balance of sale consideration of Rs. 63,000/- and take the sale deed in accordance with the provisions of the agreement deed dated 19.04.1992.? 19. Upon a careful reading of the abovesaid paragraph we have to hold that the plaintiff has not complied with the legal requirement which is mandatory as provided under Section 16 (c) of the Specific Relief Act. Section 16(c) fell for consideration and has been interpreted by this Court in a number of cases, referred to supra, upon which reliance has rightly been placed and the said decisions are applicable to the fact situation in support of defendant Nos. 12 to 15 and, therefore, we have to hold that the concurrent finding of fact recorded by the High Court on Issue No. 1 is erroneous in law and is liable to be set aside. 20. The last contention urged is whether defendant Nos. 12 to 15 (the appellants herein) are protected under Section 19(b) of the Specific Relief Act as they being the bona fide purchasers. Learned counsel for defendant Nos. 12 to 15 has rightly invited our attention that the non-compliance of the contract regarding payment of balance consideration to defendant Nos. 1 to 11 on the part of the plaintiff within nine months is an undisputed fact and further the agreement of sale is not registered, as is evidenced from the encumbrance certificate obtained by defendant Nos. 12 to 15 before they entered into an agreement (Exhibit B-1). Both the Courts below have erroneously recorded an erroneous finding on the non existent fact holding that the agreement of sale in favour of the plaintiff is a registered document which, in fact, is not true. The same is evidenced from the encumbrance certificate. More so, defendant Nos. 12 to 15 before entering into the agreement with defendant Nos. 1 to 11 have made proper verification from the competent authority to purchase the part of the suit schedule property and got the agreement of sale (Exhibit B-1) executed in their favour, from defendant Nos. 1 to 11 and thereafter, they got the sale deed registered by paying sale consideration amount. As could be seen from the agreement of sale and registered sale deed, which is marked as Exhibit B-3, it is very clear that defendant Nos. 12 to 15 have paid the sale consideration amount of the property, therefore, the reliance placed upon Section 19(b) of the Specific Relief Act as they being the bona fide purchasers, the specific performance of contract cannot be enforced against the transferees. Defendant Nos. 12 to 15 being the transferee as they have purchased the suit schedule property for value and have paid the money in good faith and without notice of the original contract. 21. In view of the aforesaid facts, the purchase of the part of the suit schedule property by defendant Nos. 12 to 15 for a valuable consideration is established by the above defendants by adducing evidence on their behalf before the trial court. Both the Courts below have omitted to consider this important piece of pleadings as also the material evidence on record thereby the concurrent finding recorded on the contentious issues has been rendered erroneous in law and is liable to be set aside. Accordingly, we answer the said issues in favour of defendant Nos. 12 to 15. | 1[ds]16. The said legal contention urged on behalf of defendant Nos. 12 to 15 has been strongly rebutted by learned counsel on behalf of the plaintiff contending that the question of payment of balance consideration amount of Rs. 63,000/- within nine months would have arisen after the terms and conditions of the contract agreed upon by defendant Nos. 1 to 11 if they had measured the suit schedule property. They have not discharged their part of the contract stipulated in the agreement to sell, therefore, it is urged by him that time was not the essence of the contract as defendant Nos. 1 to 11 themselves have failed to perform their part of the agreement17.The said contention urged on behalf of the plaintiff is unacceptable to us that the question of taking measurement would not arise before the plaintiff perform his part of the contract regarding the balance consideration within the period stipulated in the agreement. Undisputedly, that had not been done by the plaintiff in the instant case within the stipulated time and the notice was issued by the plaintiff only after one year, therefore, the plaintiff has not adhered to the time which is stipulated to pay the balance consideration amount to defendant Nos. 1 to 11 which is very important legal aspect which was required to be considered by the Courts below at the time of determining rights of the parties and pass the impugned judgment. The Courts below have ignored this important aspect of the matter while answering the contentious Issue Nos. 1 and 2 in favour of the plaintiff and granted decree of specific performance in respect of the suit schedule property. The said finding of fact is contrary to the terms and conditions of the agreement, pleadings and the evidence on record. Accordingly, we answer the said issues in favour of defendant Nos. 12 to 15 after setting aside the concurrent finding of fact recorded by the High Court18. The second important legal contention raised by defendant Nos. 12 to 15 is that the pleadings of the plaintiff is not in conformity with Order 6 Rule 3 CPC, clause 3 of Form No. 47 in Appendix A, extracted hereinabove. By a careful reading of paragraph 6 of the plaint makes it very clear that the averment as provided under clause 3 is not in stricto sensu complied with by the plaintiff19. Upon a careful reading of the abovesaid paragraph we have to hold that the plaintiff has not complied with the legal requirement which is mandatory as provided under Section 16 (c) of the Specific Relief Act. Section 16(c) fell for consideration and has been interpreted by this Court in a number of cases, referred to supra, upon which reliance has rightly been placed and the said decisions are applicable to the fact situation in support of defendant Nos. 12 to 15 and, therefore, we have to hold that the concurrent finding of fact recorded by the High Court on Issue No. 1 is erroneous in law and is liable to be set aside20. The last contention urged is whether defendant Nos. 12 to 15 (the appellants herein) are protected under Section 19(b) of the Specific Relief Act as they being the bona fide purchasers. Learned counsel for defendant Nos. 12 to 15 has rightly invited our attention that the non-compliance of the contract regarding payment of balance consideration to defendant Nos. 1 to 11 on the part of the plaintiff within nine months is an undisputed fact and further the agreement of sale is not registered, as is evidenced from the encumbrance certificate obtained by defendant Nos. 12 to 15 before they entered into an agreement (Exhibit B-1). Both the Courts below have erroneously recorded an erroneous finding on the non existent fact holding that the agreement of sale in favour of the plaintiff is a registered document which, in fact, is not true. The same is evidenced from the encumbrance certificate. More so, defendant Nos. 12 to 15 before entering into the agreement with defendant Nos. 1 to 11 have made proper verification from the competent authority to purchase the part of the suit schedule property and got the agreement of sale (Exhibit B-1) executed in their favour, from defendant Nos. 1 to 11 and thereafter, they got the sale deed registered by paying sale consideration amount. As could be seen from the agreement of sale and registered sale deed, which is marked as Exhibit B-3, it is very clear that defendant Nos. 12 to 15 have paid the sale consideration amount of the property, therefore, the reliance placed upon Section 19(b) of the Specific Relief Act as they being the bona fide purchasers, the specific performance of contract cannot be enforced against the transferees. Defendant Nos. 12 to 15 being the transferee as they have purchased the suit schedule property for value and have paid the money in good faith and without notice of the original contract21. In view of the aforesaid facts, the purchase of the part of the suit schedule property by defendant Nos. 12 to 15 for a valuable consideration is established by the above defendants by adducing evidence on their behalf before the trial court. Both the Courts below have omitted to consider this important piece of pleadings as also the material evidence on record thereby the concurrent finding recorded on the contentious issues has been rendered erroneous in law and is liable to be set aside. Accordingly, we answer the said issues in favour of defendant Nos. 12 to 15. | 1 | 4,298 | 1,015 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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LR 10 Eq 281] and Charles Rickards Ltd. v. Oppenheim.[ [1950] 1 K.B. 616]." 16. The said legal contention urged on behalf of defendant Nos. 12 to 15 has been strongly rebutted by learned counsel on behalf of the plaintiff contending that the question of payment of balance consideration amount of Rs. 63,000/- within nine months would have arisen after the terms and conditions of the contract agreed upon by defendant Nos. 1 to 11 if they had measured the suit schedule property. They have not discharged their part of the contract stipulated in the agreement to sell, therefore, it is urged by him that time was not the essence of the contract as defendant Nos. 1 to 11 themselves have failed to perform their part of the agreement. 17.The said contention urged on behalf of the plaintiff is unacceptable to us that the question of taking measurement would not arise before the plaintiff perform his part of the contract regarding the balance consideration within the period stipulated in the agreement. Undisputedly, that had not been done by the plaintiff in the instant case within the stipulated time and the notice was issued by the plaintiff only after one year, therefore, the plaintiff has not adhered to the time which is stipulated to pay the balance consideration amount to defendant Nos. 1 to 11 which is very important legal aspect which was required to be considered by the Courts below at the time of determining rights of the parties and pass the impugned judgment. The Courts below have ignored this important aspect of the matter while answering the contentious Issue Nos. 1 and 2 in favour of the plaintiff and granted decree of specific performance in respect of the suit schedule property. The said finding of fact is contrary to the terms and conditions of the agreement, pleadings and the evidence on record. Accordingly, we answer the said issues in favour of defendant Nos. 12 to 15 after setting aside the concurrent finding of fact recorded by the High Court. 18. The second important legal contention raised by defendant Nos. 12 to 15 is that the pleadings of the plaintiff is not in conformity with Order 6 Rule 3 CPC, clause 3 of Form No. 47 in Appendix A, extracted hereinabove. By a careful reading of paragraph 6 of the plaint makes it very clear that the averment as provided under clause 3 is not in stricto sensu complied with by the plaintiff. The same is evidenced from the averments made at paragraph 6 of the plaint which reads thus: ?6. The plaintiff is ready and willing to perform his part of the contract by paying the balance of sale consideration of Rs. 63,000/- and take the sale deed in accordance with the provisions of the agreement deed dated 19.04.1992.? 19. Upon a careful reading of the abovesaid paragraph we have to hold that the plaintiff has not complied with the legal requirement which is mandatory as provided under Section 16 (c) of the Specific Relief Act. Section 16(c) fell for consideration and has been interpreted by this Court in a number of cases, referred to supra, upon which reliance has rightly been placed and the said decisions are applicable to the fact situation in support of defendant Nos. 12 to 15 and, therefore, we have to hold that the concurrent finding of fact recorded by the High Court on Issue No. 1 is erroneous in law and is liable to be set aside. 20. The last contention urged is whether defendant Nos. 12 to 15 (the appellants herein) are protected under Section 19(b) of the Specific Relief Act as they being the bona fide purchasers. Learned counsel for defendant Nos. 12 to 15 has rightly invited our attention that the non-compliance of the contract regarding payment of balance consideration to defendant Nos. 1 to 11 on the part of the plaintiff within nine months is an undisputed fact and further the agreement of sale is not registered, as is evidenced from the encumbrance certificate obtained by defendant Nos. 12 to 15 before they entered into an agreement (Exhibit B-1). Both the Courts below have erroneously recorded an erroneous finding on the non existent fact holding that the agreement of sale in favour of the plaintiff is a registered document which, in fact, is not true. The same is evidenced from the encumbrance certificate. More so, defendant Nos. 12 to 15 before entering into the agreement with defendant Nos. 1 to 11 have made proper verification from the competent authority to purchase the part of the suit schedule property and got the agreement of sale (Exhibit B-1) executed in their favour, from defendant Nos. 1 to 11 and thereafter, they got the sale deed registered by paying sale consideration amount. As could be seen from the agreement of sale and registered sale deed, which is marked as Exhibit B-3, it is very clear that defendant Nos. 12 to 15 have paid the sale consideration amount of the property, therefore, the reliance placed upon Section 19(b) of the Specific Relief Act as they being the bona fide purchasers, the specific performance of contract cannot be enforced against the transferees. Defendant Nos. 12 to 15 being the transferee as they have purchased the suit schedule property for value and have paid the money in good faith and without notice of the original contract. 21. In view of the aforesaid facts, the purchase of the part of the suit schedule property by defendant Nos. 12 to 15 for a valuable consideration is established by the above defendants by adducing evidence on their behalf before the trial court. Both the Courts below have omitted to consider this important piece of pleadings as also the material evidence on record thereby the concurrent finding recorded on the contentious issues has been rendered erroneous in law and is liable to be set aside. Accordingly, we answer the said issues in favour of defendant Nos. 12 to 15.
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16. The said legal contention urged on behalf of defendant Nos. 12 to 15 has been strongly rebutted by learned counsel on behalf of the plaintiff contending that the question of payment of balance consideration amount of Rs. 63,000/- within nine months would have arisen after the terms and conditions of the contract agreed upon by defendant Nos. 1 to 11 if they had measured the suit schedule property. They have not discharged their part of the contract stipulated in the agreement to sell, therefore, it is urged by him that time was not the essence of the contract as defendant Nos. 1 to 11 themselves have failed to perform their part of the agreement17.The said contention urged on behalf of the plaintiff is unacceptable to us that the question of taking measurement would not arise before the plaintiff perform his part of the contract regarding the balance consideration within the period stipulated in the agreement. Undisputedly, that had not been done by the plaintiff in the instant case within the stipulated time and the notice was issued by the plaintiff only after one year, therefore, the plaintiff has not adhered to the time which is stipulated to pay the balance consideration amount to defendant Nos. 1 to 11 which is very important legal aspect which was required to be considered by the Courts below at the time of determining rights of the parties and pass the impugned judgment. The Courts below have ignored this important aspect of the matter while answering the contentious Issue Nos. 1 and 2 in favour of the plaintiff and granted decree of specific performance in respect of the suit schedule property. The said finding of fact is contrary to the terms and conditions of the agreement, pleadings and the evidence on record. Accordingly, we answer the said issues in favour of defendant Nos. 12 to 15 after setting aside the concurrent finding of fact recorded by the High Court18. The second important legal contention raised by defendant Nos. 12 to 15 is that the pleadings of the plaintiff is not in conformity with Order 6 Rule 3 CPC, clause 3 of Form No. 47 in Appendix A, extracted hereinabove. By a careful reading of paragraph 6 of the plaint makes it very clear that the averment as provided under clause 3 is not in stricto sensu complied with by the plaintiff19. Upon a careful reading of the abovesaid paragraph we have to hold that the plaintiff has not complied with the legal requirement which is mandatory as provided under Section 16 (c) of the Specific Relief Act. Section 16(c) fell for consideration and has been interpreted by this Court in a number of cases, referred to supra, upon which reliance has rightly been placed and the said decisions are applicable to the fact situation in support of defendant Nos. 12 to 15 and, therefore, we have to hold that the concurrent finding of fact recorded by the High Court on Issue No. 1 is erroneous in law and is liable to be set aside20. The last contention urged is whether defendant Nos. 12 to 15 (the appellants herein) are protected under Section 19(b) of the Specific Relief Act as they being the bona fide purchasers. Learned counsel for defendant Nos. 12 to 15 has rightly invited our attention that the non-compliance of the contract regarding payment of balance consideration to defendant Nos. 1 to 11 on the part of the plaintiff within nine months is an undisputed fact and further the agreement of sale is not registered, as is evidenced from the encumbrance certificate obtained by defendant Nos. 12 to 15 before they entered into an agreement (Exhibit B-1). Both the Courts below have erroneously recorded an erroneous finding on the non existent fact holding that the agreement of sale in favour of the plaintiff is a registered document which, in fact, is not true. The same is evidenced from the encumbrance certificate. More so, defendant Nos. 12 to 15 before entering into the agreement with defendant Nos. 1 to 11 have made proper verification from the competent authority to purchase the part of the suit schedule property and got the agreement of sale (Exhibit B-1) executed in their favour, from defendant Nos. 1 to 11 and thereafter, they got the sale deed registered by paying sale consideration amount. As could be seen from the agreement of sale and registered sale deed, which is marked as Exhibit B-3, it is very clear that defendant Nos. 12 to 15 have paid the sale consideration amount of the property, therefore, the reliance placed upon Section 19(b) of the Specific Relief Act as they being the bona fide purchasers, the specific performance of contract cannot be enforced against the transferees. Defendant Nos. 12 to 15 being the transferee as they have purchased the suit schedule property for value and have paid the money in good faith and without notice of the original contract21. In view of the aforesaid facts, the purchase of the part of the suit schedule property by defendant Nos. 12 to 15 for a valuable consideration is established by the above defendants by adducing evidence on their behalf before the trial court. Both the Courts below have omitted to consider this important piece of pleadings as also the material evidence on record thereby the concurrent finding recorded on the contentious issues has been rendered erroneous in law and is liable to be set aside. Accordingly, we answer the said issues in favour of defendant Nos. 12 to 15.
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State Of M.P Vs. S.B. Johari | working as Medical Officer Incharge of Stores and Mr. Sudhir Pingle (Sole Respondent in SLP No. 2855/99) was working as Accountant in the hospital. It is alleged that all the aforesaid accused entered into criminal conspiracy with some local businessmen of Indore by misusing their posts and also by using some forged documents that caused wrongful loss to the Government. It has been stated that though many of the items have not been purchased, amount is paid on bogus vouchers. On the basis of the material on record, it was pointed out that some medicines were purchased at Jabalpur at lesser price, roughly at half the rate. After considering the material on record, learned Sessions Judge framed the charge as stated above. That charge is quashed by the High Court against respondents by accepting the contention raised and considering details of material produced on record. The same is challenged by filing these appeals. 4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya and others etc. reported in 1999(1) RCR (Crl.) 89 : 1990(4) SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C., Court posed a question, whether at the stage of framing the charge, trial Court should marshal the materials on the record of the case as he would do on the conclusion of the trial ? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh, 1977(4) SCC 39, Union of India v. Prafulla Kumar Samal, 1979(3) SCC 4 and Supdt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, 1979(4) SCC 274, and held thus : "From the above discussion it seems well settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose shift (sift ?) the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case." (emphasis supplied) 5. In the present appeals dealing with the contention of respondent Dr. Johri, Mr. A.P. Acharya and Dr. O.P. Tiwari, the High Court observed that role of Dr. Johari in purchase of the medicines was limited to the extent that he prepared only a comparative statement of tenders and that the other two persons were members of the Purchase Committee. The Court arrived at the conclusion that comparison of different prices at different places at different periods on the basis of different transactions between different persons cannot straightway be made the basis for alleging corruption or corrupt practice on the part of the accused. The Court further observed that the trial Court has not properly appreciated that there is a difference of about 550 miles between Jabalpur and Indore and therefore price difference in purchase of medicines would be there. The Court also held that the medicines were purchased at two places during different periods and therefore also, there would be a price difference. With regard to A.P. Acharya and Dr. O.P. Tiwari the Court observed that they were not shown to have any control over the purchase of the goods and, therefore, they cannot be saddled with the criminal prosecution. The Court further considered that as per the statement of Manufacturing Company the quotations given by the M/s Allied Medicine Agency, Indore were genuine and, therefore, held that charges levelled against the respondents Dr. Johri, Mr. A.P. Acharya and Dr. Tiwari cannot stand for a minute. Similarly, dealing with the contention of respondent Sudhir Pingle in Crl. Revision No. 159 of 1999, the High Court observed that it cannot be disputed that respondent had prepared the bills on account of instructions given to him by superiors, namely, Dr. Johri and Dr. Tiwari and that on his own account he could not have prepared the said bills for making payment to M/s Allied Medical Agency. The Court also observed that he was neither empowered to place orders nor competent to make payment thereof unless the same was approved by the doctors who were actually in charge of the hospital. The Court, therefore, held that there was no sufficient material available for framing the charge against him. 6. | 0[ds]is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence.In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya and others etc. reported in 1999(1) RCR (Crl.) 89 : 1990(4) SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C., Court posed a question, whether at the stage of framing the charge, trial Court should marshal the materials on the record of the case as he would do on the conclusion of the trial ?The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. | 0 | 1,316 | 363 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
working as Medical Officer Incharge of Stores and Mr. Sudhir Pingle (Sole Respondent in SLP No. 2855/99) was working as Accountant in the hospital. It is alleged that all the aforesaid accused entered into criminal conspiracy with some local businessmen of Indore by misusing their posts and also by using some forged documents that caused wrongful loss to the Government. It has been stated that though many of the items have not been purchased, amount is paid on bogus vouchers. On the basis of the material on record, it was pointed out that some medicines were purchased at Jabalpur at lesser price, roughly at half the rate. After considering the material on record, learned Sessions Judge framed the charge as stated above. That charge is quashed by the High Court against respondents by accepting the contention raised and considering details of material produced on record. The same is challenged by filing these appeals. 4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya and others etc. reported in 1999(1) RCR (Crl.) 89 : 1990(4) SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C., Court posed a question, whether at the stage of framing the charge, trial Court should marshal the materials on the record of the case as he would do on the conclusion of the trial ? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh, 1977(4) SCC 39, Union of India v. Prafulla Kumar Samal, 1979(3) SCC 4 and Supdt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, 1979(4) SCC 274, and held thus : "From the above discussion it seems well settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose shift (sift ?) the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case." (emphasis supplied) 5. In the present appeals dealing with the contention of respondent Dr. Johri, Mr. A.P. Acharya and Dr. O.P. Tiwari, the High Court observed that role of Dr. Johari in purchase of the medicines was limited to the extent that he prepared only a comparative statement of tenders and that the other two persons were members of the Purchase Committee. The Court arrived at the conclusion that comparison of different prices at different places at different periods on the basis of different transactions between different persons cannot straightway be made the basis for alleging corruption or corrupt practice on the part of the accused. The Court further observed that the trial Court has not properly appreciated that there is a difference of about 550 miles between Jabalpur and Indore and therefore price difference in purchase of medicines would be there. The Court also held that the medicines were purchased at two places during different periods and therefore also, there would be a price difference. With regard to A.P. Acharya and Dr. O.P. Tiwari the Court observed that they were not shown to have any control over the purchase of the goods and, therefore, they cannot be saddled with the criminal prosecution. The Court further considered that as per the statement of Manufacturing Company the quotations given by the M/s Allied Medicine Agency, Indore were genuine and, therefore, held that charges levelled against the respondents Dr. Johri, Mr. A.P. Acharya and Dr. Tiwari cannot stand for a minute. Similarly, dealing with the contention of respondent Sudhir Pingle in Crl. Revision No. 159 of 1999, the High Court observed that it cannot be disputed that respondent had prepared the bills on account of instructions given to him by superiors, namely, Dr. Johri and Dr. Tiwari and that on his own account he could not have prepared the said bills for making payment to M/s Allied Medical Agency. The Court also observed that he was neither empowered to place orders nor competent to make payment thereof unless the same was approved by the doctors who were actually in charge of the hospital. The Court, therefore, held that there was no sufficient material available for framing the charge against him. 6.
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is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence.In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya and others etc. reported in 1999(1) RCR (Crl.) 89 : 1990(4) SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C., Court posed a question, whether at the stage of framing the charge, trial Court should marshal the materials on the record of the case as he would do on the conclusion of the trial ?The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof.
|
L.K. Verma Vs. H.M.T. Ltd. | SCC 242 , State of H.P. and Others vs. Gujarat Ambuja Cement Ltd. and Another (2005) 6 SCC 499 ].21. In any event, one a writ petition has been entertained and determined on merit of the matter, the appellate court, except in rare cases, would not interfere therewith only on the ground of existence of alternative remedy. [See Kanak (Smt.) and Another vs. U.P. Avas Evam Vikas Parishad and Others. (2003) 7 SCC 693 ]. We, therefore, do not see any justification to hold that the High Court wrongly entertained the writ petition filed by the Respondent.22. So far as the contention as regard quantum of punishment is concerned, suffice it to say that verbal abuse has been held to be sufficient for inflicting a punishment of dismissal.23. Mahindra and Mahindra Ltd. vs. N.N. Narawade etc. [JT 2005 (2) SC 583 : (2005) 3 SCC 134 ] is a case wherein the misconduct against the delinquent was `verbal abuse. This Court held: "It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court cannot by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment. As noticed hereinabove at least in two of the cases cited before us i.e. Orissa Cement Ltd. and New Shorrock Mills this Court held. "Punishment of dismissal for using of abusive language cannot be held to be disproportionate." In this case all the forums below have held that the language used by the workman was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilised society. Use of such abusive language against a superior officer, that too not once but twice, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor referred to hereinabove." 24. In Muriadih Colliery vs. Bihar Colliery Kamgar Union (2005) 3 SCC 331 ), this Court, inter alia, following Mahindra and Mahindra (supra) held: "It is well-established principle in law that in a given circumstance it is open to the Industrial Tribunal acting under Section 11-A of the Industrial Disputes Act, 1947 has the jurisdiction to interfere with the punishment awarded in the domestic inquiry for good and valid reasons. If the Tribunal decides to interfere with such punishment it should bear in mind the principle of proportionality between the gravity of the offence and the stringency of the punishment. In the instant case it is the finding of the Tribunal which is not disturbed by the writ courts that the two workmen involved in this appeal along with the others formed themselves into an unlawful assembly, armed with deadly weapons, went to the office of the General Manager and assaulted him and his colleagues causing them injuries. The injuries suffered by the General Manager were caused by lathi on the head. The fact that the victim did not die is not a mitigating circumstance to reduce the sentence of dismissal." 25. These questions recently came up for consideration in Hombe Gowda Edn. Trust & Anr. vs. State of Karnataka & others (2005 (10) SCALE 307 ); upon considering a large number of cases, this Court held: "Indiscipline in an educational institution should not be tolerated. Only because the Principle of the Institution had not been proceeded against, the same by itself cannot be a ground for not exercising the discretionary jurisdiction by us. It may or may not be that the Management was selectively vindictive but no Management can ignore a serious lapse on the part of a teacher whose conduct should be an example to the pupils.This Court has come a long way from its earlier view points. The recent trend in the decisions of this Court seek to strike a balance between the earlier approach of the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fact industrial growth of the country. In several decisions of this Court it has been noticed that how discipline at the workplaces / industrial undertaking received a set back. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity. Our country is governed by rule of law. All actions, therefore, must be taken in accordance with law. Law declared by this Court in terms of Article 141 of the Constitution of India, as noticed in the decisions noticed supra, categorically demonstrates that the Tribunal would not normally interfere with the quantum of punishment imposed by the employers unless an appropriate case is made out therefor. The Tribunal being inferior to that of this court was bound to follow the decisions of this Court which are applicable to the fact of the present case in question. The Tribunal can neither ignore the ratio laid down by this Court nor refuse to follow the same." (See also State of Rajasthan and another vs. Mohammed Ayub Naz (2006(1) Scale 79). | 0[ds]11. In the departmental proceedings, the Appellant, herein did not deny or dispute that he had used indecent language and also abused the officer.12. The contention of Mr. Desai that the disciplinary proceedings were actuated by malice cannot be accepted for more than one reason. As noticed hereinbefore, the Appellant himself accepted that he was in tense mood while attending the prima facie enquiry. The Enquiry Officer while holding the Appellant guilty of misconduct in respect of Charge No. 2 exonerated him in respect of Charges No. 1 and 3. Had the action of the Management and the disciplinary authority were actuated by malice, the Appellant would not have been exonerated on two very serious charges. Furthermore, when a charge has been proved, the question of exonerating the Appellant on the ground of purported malice on the part of the Management does not arise. Evidently, the disciplinary authority was not biased against the Appellant nor any malice has been attributed to him. The contention is rejected.13. It is true that in terms of sub-rule (3) of Rule 14 of the Rules an appeal was maintainable before the State Government. But it is well settled, availability of an alternative forum for redressal of grievances itself may not be sufficient to come to a conclusion that the power of judicial review vested in the High Court is not to be exercised.14. The Respondents herein filed the writ petition inter alia on the ground that the Labour Commissioner did not give enough opportunity to them to place their case. From the order dated 12th April, 1998 passed by the Labour Commissioner, it appears, he allowed the appeal preferred by the Appellant, herein inter alia on the"... Dismissal from service during the pendency of Appeal against suspension of the petitioner/appellant is against the set rulings & norms, which indicates the malafide intention of the management against petitioner/appellant...(ii) "....Vide letter dated 29.10.1997 of the General Technical Manager of the factory informed the petitioner/appellant that all the charges against him found proved, but no further disciplinary action will be taken during the pendency of writ petition against suspension in the Honble High Court but vide letter 08.01.1998, the Director Personal and occupier Sh. R.A. Sharma informed the petitioner/appellant about proving only one charge & seeking defence/clarification about so-called "show cause notice" and vide letter 21.02.1998, dismissing the service of the petitioner/appellant due to unsatisfactory defence, found against each others verdict and malafidely included..."(iii) "...No evidence has been produced against petitioner/appellant against the charge for which he has been dismissed from services. The management of the factory has suspended the petitioner/appellant and thereafter dismissed from services in violation of the provisions of the Factories Act, 1948 and the UP Factories (Safety Officer) Rules 1984 framed thereunder. Therefore, both the acts of the management of suspension and dismissal found against the rules and also against the evidences produced...The Labour Commissioner, in our considered opinion, misdirected himself in passing the said order. Whereas, on the one hand, he noticed that the Appellant, herein had stated that during the preliminary enquiry he made those utterances owing to tension in his mind, he opined that no evidence had been produced against him for which he has been dismissed from service. It is now well-settled that things admitted need not be proved. [See Vice-Chairman, Kendriya Vidyalaya Sangathan and Another vs. Girdharilal Yadav, (2004) 6 SCC 325 ]16. Once the Appellant accepted that he made utterances which admittedly lack civility and he also threatened a superior officer, it was for him to show that he later on felt remorse therefor. If he was under tension, he, at later stage, could have at least tendered an apology. He did not do so. Furthermore, before the Enquiry Officer, the witnesses were examined for proving the said charges. The officer concerned, namely, Shri Sinha had also submitted a report mentioning the incident of misbehaviour of the Appellant on 18.5.1996. The Enquiry Officer came to the conclusion that both the Management and the witnesses corroborated each others statements and although they had been cross-examined thoroughly, no contradiction was found in their statements in regard to the said charge.17. Suspension is of three kinds. An order of suspension may be passed by way of punishment in terms of the conduct rules. An order of suspension can also be passed by the employer in exercise of its inherent power in the sense that he may not take any work from the delinquent officer but in that event, the entire salary is required to be paid. An order of suspension can also be passed, if such a provision exist in the rule laying down that in place of the full salary, the delinquent officer shall be paid only the subsistence allowance specified therein.18. The Appellant herein admittedly obtained the subsistence allowance offered to him without any demur whatsoever. The order of suspension was not passed as a measure of penalty within the meaning of the Rules. Rightly or wrongly, the Respondent invoked Rule 23.3 of HMT Limited Conduct, Discipline & Appeal Rules. The Appellant did not raise any question about the applicability of the said rule, although such a contention could have been raised.19. In view of the fact that the order of suspension was not passed in terms of Rule 8 of the Rules, the findings of the Commissioner that the said rule will be applicable must be held to be incorrect.20. The High Court in exercise of its jurisdiction under Article 226 of the Constitution, in a given case although may not entertain a writ petition inter alia on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. Despite existence of an alternative remedy, a writ court may exercise its discretionary jurisdiction of judicial review inter alia in cases where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right or if there has been a violation of a principle of natural justice or where vires of the act is in question. In the aforementioned circumstances, the alternative remedy has been held not to operate as a bar. [See Whirlpool Corporation vs. Registrar of Trade Marks Mumbai and Others, (1998) 1 SCC 1 , Sanjana M.Wig (Ms.) vs. Hindustan Petroleum Corpn. Ltd., (2005) 8 SCC 242 , State of H.P. and Others vs. Gujarat Ambuja Cement Ltd. and Another (2005) 6 SCC 499 ].21. In any event, one a writ petition has been entertained and determined on merit of the matter, the appellate court, except in rare cases, would not interfere therewith only on the ground of existence of alternative remedy. [See Kanak (Smt.) and Another vs. U.P. Avas Evam Vikas Parishad and Others. (2003) 7 SCC 693 ]. We, therefore, do not see any justification to hold that the High Court wrongly entertained the writ petition filed by the Respondent.22. So far as the contention as regard quantum of punishment is concerned, suffice it to say that verbal abuse has been held to be sufficient for inflicting a punishment of dismissal.23. Mahindra and Mahindra Ltd. vs. N.N. Narawade etc. [JT 2005 (2) SC 583 : (2005) 3 SCC 134 ] is a case wherein the misconduct against the delinquent was `verbal abuse. This Courtis no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court cannot by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment. As noticed hereinabove at least in two of the cases cited before us i.e. Orissa Cement Ltd. and New Shorrock Mills this Court held. "Punishment of dismissal for using of abusive language cannot be held to be disproportionate." In this case all the forums below have held that the language used by the workman was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilised society. Use of such abusive language against a superior officer, that too not once but twice, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor referred to hereinabove.In Muriadih Colliery vs. Bihar Colliery Kamgar Union (2005) 3 SCC 331 ), this Court, inter alia, following Mahindra and Mahindra (supra)is well-established principle in law that in a given circumstance it is open to the Industrial Tribunal acting under Section 11-A of the Industrial Disputes Act, 1947 has the jurisdiction to interfere with the punishment awarded in the domestic inquiry for good and valid reasons. If the Tribunal decides to interfere with such punishment it should bear in mind the principle of proportionality between the gravity of the offence and the stringency of the punishment. In the instant case it is the finding of the Tribunal which is not disturbed by the writ courts that the two workmen involved in this appeal along with the others formed themselves into an unlawful assembly, armed with deadly weapons, went to the office of the General Manager and assaulted him and his colleagues causing them injuries. The injuries suffered by the General Manager were caused by lathi on the head. The fact that the victim did not die is not a mitigating circumstance to reduce the sentence of dismissal.These questions recently came up for consideration in Hombe Gowda Edn. Trust & Anr. vs. State of Karnataka & others (2005 (10) SCALE 307 ); upon considering a large number of cases, this Courtin an educational institution should not be tolerated. Only because the Principle of the Institution had not been proceeded against, the same by itself cannot be a ground for not exercising the discretionary jurisdiction by us. It may or may not be that the Management was selectively vindictive but no Management can ignore a serious lapse on the part of a teacher whose conduct should be an example to the pupils.This Court has come a long way from its earlier view points. The recent trend in the decisions of this Court seek to strike a balance between the earlier approach of the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fact industrial growth of the country. In several decisions of this Court it has been noticed that how discipline at the workplaces / industrial undertaking received a set back. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity. Our country is governed by rule of law. All actions, therefore, must be taken in accordance with law. Law declared by this Court in terms of Article 141 of the Constitution of India, as noticed in the decisions noticed supra, categorically demonstrates that the Tribunal would not normally interfere with the quantum of punishment imposed by the employers unless an appropriate case is made out therefor. The Tribunal being inferior to that of this court was bound to follow the decisions of this Court which are applicable to the fact of the present case in question. The Tribunal can neither ignore the ratio laid down by this Court nor refuse to follow thealso State of Rajasthan and another vs. Mohammed Ayub Naz (2006(1) Scale 79). | 0 | 3,639 | 2,263 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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SCC 242 , State of H.P. and Others vs. Gujarat Ambuja Cement Ltd. and Another (2005) 6 SCC 499 ].21. In any event, one a writ petition has been entertained and determined on merit of the matter, the appellate court, except in rare cases, would not interfere therewith only on the ground of existence of alternative remedy. [See Kanak (Smt.) and Another vs. U.P. Avas Evam Vikas Parishad and Others. (2003) 7 SCC 693 ]. We, therefore, do not see any justification to hold that the High Court wrongly entertained the writ petition filed by the Respondent.22. So far as the contention as regard quantum of punishment is concerned, suffice it to say that verbal abuse has been held to be sufficient for inflicting a punishment of dismissal.23. Mahindra and Mahindra Ltd. vs. N.N. Narawade etc. [JT 2005 (2) SC 583 : (2005) 3 SCC 134 ] is a case wherein the misconduct against the delinquent was `verbal abuse. This Court held: "It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court cannot by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment. As noticed hereinabove at least in two of the cases cited before us i.e. Orissa Cement Ltd. and New Shorrock Mills this Court held. "Punishment of dismissal for using of abusive language cannot be held to be disproportionate." In this case all the forums below have held that the language used by the workman was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilised society. Use of such abusive language against a superior officer, that too not once but twice, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor referred to hereinabove." 24. In Muriadih Colliery vs. Bihar Colliery Kamgar Union (2005) 3 SCC 331 ), this Court, inter alia, following Mahindra and Mahindra (supra) held: "It is well-established principle in law that in a given circumstance it is open to the Industrial Tribunal acting under Section 11-A of the Industrial Disputes Act, 1947 has the jurisdiction to interfere with the punishment awarded in the domestic inquiry for good and valid reasons. If the Tribunal decides to interfere with such punishment it should bear in mind the principle of proportionality between the gravity of the offence and the stringency of the punishment. In the instant case it is the finding of the Tribunal which is not disturbed by the writ courts that the two workmen involved in this appeal along with the others formed themselves into an unlawful assembly, armed with deadly weapons, went to the office of the General Manager and assaulted him and his colleagues causing them injuries. The injuries suffered by the General Manager were caused by lathi on the head. The fact that the victim did not die is not a mitigating circumstance to reduce the sentence of dismissal." 25. These questions recently came up for consideration in Hombe Gowda Edn. Trust & Anr. vs. State of Karnataka & others (2005 (10) SCALE 307 ); upon considering a large number of cases, this Court held: "Indiscipline in an educational institution should not be tolerated. Only because the Principle of the Institution had not been proceeded against, the same by itself cannot be a ground for not exercising the discretionary jurisdiction by us. It may or may not be that the Management was selectively vindictive but no Management can ignore a serious lapse on the part of a teacher whose conduct should be an example to the pupils.This Court has come a long way from its earlier view points. The recent trend in the decisions of this Court seek to strike a balance between the earlier approach of the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fact industrial growth of the country. In several decisions of this Court it has been noticed that how discipline at the workplaces / industrial undertaking received a set back. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity. Our country is governed by rule of law. All actions, therefore, must be taken in accordance with law. Law declared by this Court in terms of Article 141 of the Constitution of India, as noticed in the decisions noticed supra, categorically demonstrates that the Tribunal would not normally interfere with the quantum of punishment imposed by the employers unless an appropriate case is made out therefor. The Tribunal being inferior to that of this court was bound to follow the decisions of this Court which are applicable to the fact of the present case in question. The Tribunal can neither ignore the ratio laid down by this Court nor refuse to follow the same." (See also State of Rajasthan and another vs. Mohammed Ayub Naz (2006(1) Scale 79).
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### Explanation:
(1998) 1 SCC 1 , Sanjana M.Wig (Ms.) vs. Hindustan Petroleum Corpn. Ltd., (2005) 8 SCC 242 , State of H.P. and Others vs. Gujarat Ambuja Cement Ltd. and Another (2005) 6 SCC 499 ].21. In any event, one a writ petition has been entertained and determined on merit of the matter, the appellate court, except in rare cases, would not interfere therewith only on the ground of existence of alternative remedy. [See Kanak (Smt.) and Another vs. U.P. Avas Evam Vikas Parishad and Others. (2003) 7 SCC 693 ]. We, therefore, do not see any justification to hold that the High Court wrongly entertained the writ petition filed by the Respondent.22. So far as the contention as regard quantum of punishment is concerned, suffice it to say that verbal abuse has been held to be sufficient for inflicting a punishment of dismissal.23. Mahindra and Mahindra Ltd. vs. N.N. Narawade etc. [JT 2005 (2) SC 583 : (2005) 3 SCC 134 ] is a case wherein the misconduct against the delinquent was `verbal abuse. This Courtis no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court cannot by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment. As noticed hereinabove at least in two of the cases cited before us i.e. Orissa Cement Ltd. and New Shorrock Mills this Court held. "Punishment of dismissal for using of abusive language cannot be held to be disproportionate." In this case all the forums below have held that the language used by the workman was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilised society. Use of such abusive language against a superior officer, that too not once but twice, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor referred to hereinabove.In Muriadih Colliery vs. Bihar Colliery Kamgar Union (2005) 3 SCC 331 ), this Court, inter alia, following Mahindra and Mahindra (supra)is well-established principle in law that in a given circumstance it is open to the Industrial Tribunal acting under Section 11-A of the Industrial Disputes Act, 1947 has the jurisdiction to interfere with the punishment awarded in the domestic inquiry for good and valid reasons. If the Tribunal decides to interfere with such punishment it should bear in mind the principle of proportionality between the gravity of the offence and the stringency of the punishment. In the instant case it is the finding of the Tribunal which is not disturbed by the writ courts that the two workmen involved in this appeal along with the others formed themselves into an unlawful assembly, armed with deadly weapons, went to the office of the General Manager and assaulted him and his colleagues causing them injuries. The injuries suffered by the General Manager were caused by lathi on the head. The fact that the victim did not die is not a mitigating circumstance to reduce the sentence of dismissal.These questions recently came up for consideration in Hombe Gowda Edn. Trust & Anr. vs. State of Karnataka & others (2005 (10) SCALE 307 ); upon considering a large number of cases, this Courtin an educational institution should not be tolerated. Only because the Principle of the Institution had not been proceeded against, the same by itself cannot be a ground for not exercising the discretionary jurisdiction by us. It may or may not be that the Management was selectively vindictive but no Management can ignore a serious lapse on the part of a teacher whose conduct should be an example to the pupils.This Court has come a long way from its earlier view points. The recent trend in the decisions of this Court seek to strike a balance between the earlier approach of the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fact industrial growth of the country. In several decisions of this Court it has been noticed that how discipline at the workplaces / industrial undertaking received a set back. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity. Our country is governed by rule of law. All actions, therefore, must be taken in accordance with law. Law declared by this Court in terms of Article 141 of the Constitution of India, as noticed in the decisions noticed supra, categorically demonstrates that the Tribunal would not normally interfere with the quantum of punishment imposed by the employers unless an appropriate case is made out therefor. The Tribunal being inferior to that of this court was bound to follow the decisions of this Court which are applicable to the fact of the present case in question. The Tribunal can neither ignore the ratio laid down by this Court nor refuse to follow thealso State of Rajasthan and another vs. Mohammed Ayub Naz (2006(1) Scale 79).
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CHANDRA MOHAN VARMA Vs. STATE OF UTTAR PRADESH | to have been self-granted. Further extension in service shall only be granted in those special circumstances which are recommended by the State Government… This Court held that in terms of Regulation 21, a person who was in service at the beginning of the academic session on 2 July was entitled to continue to serve until the end of the academic session (30 June) of the following year. In that context, dealing with the case of Ram Vir Sharma, this Court held: Thus, his age of superannuation under Regulation 21, would be deemed to have been extended till 30.06.2008. It is, therefore, clear that the appellant must not be deemed to have been superannuated on 6.8.2007, but he would be deemed to have been superannuated only on 30.06.2008, under Regulation 21, (extracted above). If he was to superannuate on 30.06.2008, naturally, his tenure of Principal would be co-terminus with the date of his superannuation. The above observations of this Court were made specifically in the context of Regulation 21 which envisaged that where the date of superannuation of a principal or a teacher falls between 2 July and 30 June of the following year, the incumbent shall retire at the end of the academic year and the extension shall be deemed to have been granted. The exception, in the nature of an opt-out provision, is where an employee does not desire to continue and issues a notice of two months prior to the date of retirement. The provisions contained in Regulation 21 are materially different from the conditions subject to which the session ending benefit was granted by the GO dated 19 November 2012 to the medical teachers in Government Medical Colleges. A comparison between the two provisions would indicate that Regulation 21 provided for an opt-out provision: in the absence of the exercise of the option, the teacher shall retire at the end of the academic year and an extension would be deemed to be have been… granted. In contrast, the notification dated 6 February 2015 postulates that the grant of a session ending benefit is subject to the fulfillment of stipulated conditions including of the work and conduct of the employee being satisfactory. There is no deeming provision extending the age of retirement. The decision in Ram Vir Sharma is hence distinguishable. 22. The decision of the Division Bench of the Allahabad High Court in Hema Pathak considered whether the teacher was rightly promoted by the Committee of Management on 18 May 2013. The DIOS held that the teacher had already attained the age of superannuation before the date on which a resolution for promotion was passed and was continuing till the end of the session and was hence not entitled to promotion. Dealing with the issue the Division Bench of the High Court held that the extension of service was for all purposes a part of service and the incumbent is treated to have retired at the end of the session. Hence, if before such retirement any benefit including promotion became due, it could not be denied in the absence of a provision to the contrary. The decision in the case of Hema Pathak is distinguishable and has no bearing on the construction of the GO dated 19 November 2012. Similarly, the decision of this Court in Dr Rajendra Chaudhary (supra) dealt with the validity of the deletion of the upper age limit for direct recruitment under the notification dated 6 February 2015. Dealing with this aspect, Mr Justice Nageswara Rao, speaking for this Court in the judgment dated 28 August 2019 observed: 12…The High Court rejected the challenge to the enhancement of upper age limit for direct recruitment to the post of Professor in Dr. Juhi Singhal (supra) by holding that the Regulations framed by the MCI would prevail over the Service Rules. In the said judgment, the High Court was of the view that the Government Order dated 06.02.2015 only supplements the Rules and does not supplant them. The High Court further observed that the relaxation was done in view of the shortage of teachers in Medical Institutions who are qualified for appointment to the posts of Professors. The relaxation of the upper age limit was applicable only to those departments where 25 per cent or more posts were vacant and in respect of other departments, the State Government decided not to fill them up. In Navyug Abhiyan Samiti (supra), the Division Bench of the High Court followed the same logic and reasoning while considering the increase of upper age limit to the post of Principals in Government Medical Colleges. We see no reason to disagree with the said findings recorded by the High court. There can be no manner of doubt that the Regulations framed by the MCI relating to the conditions of service of Professors in Medical Colleges shall prevail over the Service Rules framed by the State of Uttar Pradesh. The Government Order dated 06.02.2015 has not been challenged by the Appellants for which reason they cannot make any grievance about the same. 23. The issue in Dr Rajendra Chaudharys case was distinct from the central point in this case. In the present case the issue is whether the appellant who had already attained the age of superannuation under the prevailing rules and was continuing until the end of the session would be entitled to the benefit of the enhancement of the age of retirement under the notification dated 6 February 2015. The decision in Dr Rajendra Chaudhary is hence distinguishable. 24. For the reasons that we have indicated, we hold that the appellant who attained the age of 60 years – the age of retirement which prevailed at the relevant time – was not entitled to the benefit of the notification dated 6 February 2015. The appellant was continuing until the end of the session (30 June 2015) after retirement, in terms of the decision dated 19 November 2012. He was not entitled to the enhanced age of retirement of 65 years. | 0[ds]14. While considering the rival submissions, it is necessary to clear the ground in regard to Rule 56 of the Fundamental Rules. Rule 56(a) stipulates that (except as otherwise provided in it) every government servant shall retire from service on the afternoon of the last day of the month in which the age of 60 years is attained. The High Court, while placing reliance on Rule 56(a), held that a simple GO extending the age of retirement to 65 years would not alter or modify the age of retirement contained in the Fundamental Rules. Hence, the High Court held that the age of retirement of 60 years which was prescribed in Rule 56(a) could not be altered by the notification dated 6 February 2015. The High Court therefore held that:Thus, even assuming that the aforesaid government order had come during the service of the petitioner it would not have the effect of enhancing the age of superannuation prescribed under Rule 56(a) of the Rules which stands unamendedThe above extract indicates that the High Court noticed(i) The order extending the age of retirement had not come during the service of the petitioner; and(ii) Even if it had, it would not have the effect of enhancing the age of superannuation prescribed in Rule 56(a) which stands unamended15. Rule 26 of the Rules of 1990 makes applicable the rules, regulations and orders applicable generally to government servants serving in connection with the affairs of the state in regard to matters which are not specifically provided in those Rules or in special orders. The notification dated 6 February 2015 enhancing the age of retirement to 65 years for serving members of the faculty working in Government Medical Colleges is a special order within the meaning of Rule 26. That being the position and in terms of the Rules of 1990 which have been framed under the proviso to Article 309, the increased age of superannuation as prescribed in the notification dated 6 February 2015 cannot be regarded as being ultra viresIndeed, as we have noticed, the regulations framed by the MCI contain an enabling provision in pursuance of which it was open to the State Government to provide for an increase in the age of superannuation for faculty working in the Government Medical Colleges. The view of the High Court that the notification dated 6 February 2015 is ultra vires Fundamental Rule 56 is hence erroneousThe above communication shows that the grant of a session ending benefit is for medical teachers working in the State Medical Colleges after retirement on attaining the age of superannuation. The effect is that a person who has retired on attaining the age of superannuation, may continue until the end of the academic session. In the case of the Education department, it was envisaged that a teacher who retired in the midst of the session (1 July to 30 June of the following year) would continue up to the end of the academic session (30 June). While extending this facility to the faculty of Government Medical Colleges, the communication dated 19 November 2012 made it abundantly clear that the extension of service was not automatic but was subject to the fulfillment of stipulated conditions. These were(i) The teacher should be teaching a subject regularly;(ii) The teacher should have been working on the post continuously for the period of three years;(iii) The work and conduct of the teacher should have been satisfactory; and(iv) No departmental or vigilance enquiry should be pending against the teacher. The end of session benefit would not flow as a matter of right but only on fulfilling the above conditions18. The date on which the employee attains the age of superannuation is prescribed by the Fundamental Rules. The decision which was communicated by the State Government on 19 November 2012 does not alter the date of superannuation or retirement. However, what the decision effectuates is to allow the continuance of the employee, after retirement, upon the attainment of the age of superannuation with the salient purpose of preventing a disruption in education instruction prior to the end of the academic session. This view is fortified by the fact that the continuance of the employee until the end of the session is subject to the fulfillment of conditions stipulated, as noticed above19. The notification dated 6 February 2015 provided(i) Enhancing the age of superannuation from 60 to 65 years; and(ii) Abolition of the maximum age limit for appointment of medical teachers through the UPPSC. The increase in the age of superannuation from 60 to 65 years was prospective and would apply to those medical teachers in Government Medical Colleges who had not attained the age of superannuation under the prevailing rules. The State Government, in its counter affidavit, has clarified that it has consistently adopted the position that the notification dated 6 February 2015 increasing the age of retirement for medical teachers from 60 to 65 years is prospective and would not apply to teachers, such as the appellant, who had already crossed the age of superannuation as it then stood prior to the notification dated 6 February 2015. A person who had crossed the age of 60 before the issuance of the notification and attained the age of superannuation but was on an extension until the end of the session would not be entitlement to benefit from the increase in the age of retirement. Moreover, the State Government has specifically stated in its counter affidavit that :…there is no medical teacher who had attained the age of 60 years prior to the issuance of G.O. on 6.2.2015, who has been given the benefit of increase in retirement age of 65 years,The determination of the age of retirement is a matter of executive policy. The appellant attained the age of superannuation prior to the notification dated 6 February 2015 and was not entitled to the benefit of the enhancement of the age of retirement20. The appellant has pleaded a case of discrimination, relying upon the instances of Dr A K Mehrotra, Dr Mangal Singh and Dr Pradeep Bharti. However, it is evident from the details disclosed by the appellant in the Special Leave Petition that each of the three doctors attained the age of 60 years after the date of the notification dated 6 February 2015This Court held that in terms of Regulation 21, a person who was in service at the beginning of the academic session on 2 July was entitled to continue to serve until the end of the academic session (30 June) of the following year. In that context, dealing with the case of Ram Vir Sharma, this Court held:Thus, his age of superannuation under Regulation 21, would be deemed to have been extended till 30.06.2008. It is, therefore, clear that the appellant must not be deemed to have been superannuated on 6.8.2007, but he would be deemed to have been superannuated only on 30.06.2008, under Regulation 21, (extracted above). If he was to superannuate on 30.06.2008, naturally, his tenure of Principal would be co-terminus with the date of his superannuationThe above observations of this Court were made specifically in the context of Regulation 21 which envisaged that where the date of superannuation of a principal or a teacher falls between 2 July and 30 June of the following year, the incumbent shall retire at the end of the academic year and the extension shall be deemed to have been granted. The exception, in the nature of an opt-out provision, is where an employee does not desire to continue and issues a notice of two months prior to the date of retirement. The provisions contained in Regulation 21 are materially different from the conditions subject to which the session ending benefit was granted by the GO dated 19 November 2012 to the medical teachers in Government Medical Colleges. A comparison between the two provisions would indicate that Regulation 21 provided for an opt-out provision: in the absence of the exercise of the option, the teacher shall retire at the end of the academic year and an extension would be deemed to be have been… granted. In contrast, the notification dated 6 February 2015 postulates that the grant of a session ending benefit is subject to the fulfillment of stipulated conditions including of the work and conduct of the employee being satisfactory. There is no deeming provision extending the age of retirement. The decision in Ram Vir Sharma is hence distinguishable22. The decision of the Division Bench of the Allahabad High Court in Hema Pathak considered whether the teacher was rightly promoted by the Committee of Management on 18 May 2013. The DIOS held that the teacher had already attained the age of superannuation before the date on which a resolution for promotion was passed and was continuing till the end of the session and was hence not entitled to promotion. Dealing with the issue the Division Bench of the High Court held that the extension of service was for all purposes a part of service and the incumbent is treated to have retired at the end of the session. Hence, if before such retirement any benefit including promotion became due, it could not be denied in the absence of a provision to the contrary. The decision in the case of Hema Pathak is distinguishable and has no bearing on the construction of the GO dated 19 November 2012. Similarly, the decision of this Court in Dr Rajendra Chaudhary (supra) dealt with the validity of the deletion of the upper age limit for direct recruitment under the notification dated 6 February 2015. Dealing with this aspect, Mr Justice Nageswara Rao, speaking for this Court in the judgment dated 28 August 2019 observed:12…The High Court rejected the challenge to the enhancement of upper age limit for direct recruitment to the post of Professor in Dr. Juhi Singhal (supra) by holding that the Regulations framed by the MCI would prevail over the Service Rules. In the said judgment, the High Court was of the view that the Government Order dated 06.02.2015 only supplements the Rules and does not supplant them. The High Court further observed that the relaxation was done in view of the shortage of teachers in Medical Institutions who are qualified for appointment to the posts of Professors. The relaxation of the upper age limit was applicable only to those departments where 25 per cent or more posts were vacant and in respect of other departments, the State Government decided not to fill them up. In Navyug Abhiyan Samiti (supra), the Division Bench of the High Court followed the same logic and reasoning while considering the increase of upper age limit to the post of Principals in Government Medical Colleges. We see no reason to disagree with the said findings recorded by the High court. There can be no manner of doubt that the Regulations framed by the MCI relating to the conditions of service of Professors in Medical Colleges shall prevail over the Service Rules framed by the State of Uttar Pradesh. The Government Order dated 06.02.2015 has not been challenged by the Appellants for which reason they cannot make any grievance about the same23. The issue in Dr Rajendra Chaudharys case was distinct from the central point in this case. In the present case the issue is whether the appellant who had already attained the age of superannuation under the prevailing rules and was continuing until the end of the session would be entitled to the benefit of the enhancement of the age of retirement under the notification dated 6 February 2015. The decision in Dr Rajendra Chaudhary is hence distinguishable24. For the reasons that we have indicated, we hold that the appellant who attained the age of 60 years – the age of retirement which prevailed at the relevant time – was not entitled to the benefit of the notification dated 6 February 2015. The appellant was continuing until the end of the session (30 June 2015) after retirement, in terms of the decision dated 19 November 2012. He was not entitled to the enhanced age of retirement of 65 years. | 0 | 5,967 | 2,205 | ### Instruction:
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to have been self-granted. Further extension in service shall only be granted in those special circumstances which are recommended by the State Government… This Court held that in terms of Regulation 21, a person who was in service at the beginning of the academic session on 2 July was entitled to continue to serve until the end of the academic session (30 June) of the following year. In that context, dealing with the case of Ram Vir Sharma, this Court held: Thus, his age of superannuation under Regulation 21, would be deemed to have been extended till 30.06.2008. It is, therefore, clear that the appellant must not be deemed to have been superannuated on 6.8.2007, but he would be deemed to have been superannuated only on 30.06.2008, under Regulation 21, (extracted above). If he was to superannuate on 30.06.2008, naturally, his tenure of Principal would be co-terminus with the date of his superannuation. The above observations of this Court were made specifically in the context of Regulation 21 which envisaged that where the date of superannuation of a principal or a teacher falls between 2 July and 30 June of the following year, the incumbent shall retire at the end of the academic year and the extension shall be deemed to have been granted. The exception, in the nature of an opt-out provision, is where an employee does not desire to continue and issues a notice of two months prior to the date of retirement. The provisions contained in Regulation 21 are materially different from the conditions subject to which the session ending benefit was granted by the GO dated 19 November 2012 to the medical teachers in Government Medical Colleges. A comparison between the two provisions would indicate that Regulation 21 provided for an opt-out provision: in the absence of the exercise of the option, the teacher shall retire at the end of the academic year and an extension would be deemed to be have been… granted. In contrast, the notification dated 6 February 2015 postulates that the grant of a session ending benefit is subject to the fulfillment of stipulated conditions including of the work and conduct of the employee being satisfactory. There is no deeming provision extending the age of retirement. The decision in Ram Vir Sharma is hence distinguishable. 22. The decision of the Division Bench of the Allahabad High Court in Hema Pathak considered whether the teacher was rightly promoted by the Committee of Management on 18 May 2013. The DIOS held that the teacher had already attained the age of superannuation before the date on which a resolution for promotion was passed and was continuing till the end of the session and was hence not entitled to promotion. Dealing with the issue the Division Bench of the High Court held that the extension of service was for all purposes a part of service and the incumbent is treated to have retired at the end of the session. Hence, if before such retirement any benefit including promotion became due, it could not be denied in the absence of a provision to the contrary. The decision in the case of Hema Pathak is distinguishable and has no bearing on the construction of the GO dated 19 November 2012. Similarly, the decision of this Court in Dr Rajendra Chaudhary (supra) dealt with the validity of the deletion of the upper age limit for direct recruitment under the notification dated 6 February 2015. Dealing with this aspect, Mr Justice Nageswara Rao, speaking for this Court in the judgment dated 28 August 2019 observed: 12…The High Court rejected the challenge to the enhancement of upper age limit for direct recruitment to the post of Professor in Dr. Juhi Singhal (supra) by holding that the Regulations framed by the MCI would prevail over the Service Rules. In the said judgment, the High Court was of the view that the Government Order dated 06.02.2015 only supplements the Rules and does not supplant them. The High Court further observed that the relaxation was done in view of the shortage of teachers in Medical Institutions who are qualified for appointment to the posts of Professors. The relaxation of the upper age limit was applicable only to those departments where 25 per cent or more posts were vacant and in respect of other departments, the State Government decided not to fill them up. In Navyug Abhiyan Samiti (supra), the Division Bench of the High Court followed the same logic and reasoning while considering the increase of upper age limit to the post of Principals in Government Medical Colleges. We see no reason to disagree with the said findings recorded by the High court. There can be no manner of doubt that the Regulations framed by the MCI relating to the conditions of service of Professors in Medical Colleges shall prevail over the Service Rules framed by the State of Uttar Pradesh. The Government Order dated 06.02.2015 has not been challenged by the Appellants for which reason they cannot make any grievance about the same. 23. The issue in Dr Rajendra Chaudharys case was distinct from the central point in this case. In the present case the issue is whether the appellant who had already attained the age of superannuation under the prevailing rules and was continuing until the end of the session would be entitled to the benefit of the enhancement of the age of retirement under the notification dated 6 February 2015. The decision in Dr Rajendra Chaudhary is hence distinguishable. 24. For the reasons that we have indicated, we hold that the appellant who attained the age of 60 years – the age of retirement which prevailed at the relevant time – was not entitled to the benefit of the notification dated 6 February 2015. The appellant was continuing until the end of the session (30 June 2015) after retirement, in terms of the decision dated 19 November 2012. He was not entitled to the enhanced age of retirement of 65 years.
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by the appellant in the Special Leave Petition that each of the three doctors attained the age of 60 years after the date of the notification dated 6 February 2015This Court held that in terms of Regulation 21, a person who was in service at the beginning of the academic session on 2 July was entitled to continue to serve until the end of the academic session (30 June) of the following year. In that context, dealing with the case of Ram Vir Sharma, this Court held:Thus, his age of superannuation under Regulation 21, would be deemed to have been extended till 30.06.2008. It is, therefore, clear that the appellant must not be deemed to have been superannuated on 6.8.2007, but he would be deemed to have been superannuated only on 30.06.2008, under Regulation 21, (extracted above). If he was to superannuate on 30.06.2008, naturally, his tenure of Principal would be co-terminus with the date of his superannuationThe above observations of this Court were made specifically in the context of Regulation 21 which envisaged that where the date of superannuation of a principal or a teacher falls between 2 July and 30 June of the following year, the incumbent shall retire at the end of the academic year and the extension shall be deemed to have been granted. The exception, in the nature of an opt-out provision, is where an employee does not desire to continue and issues a notice of two months prior to the date of retirement. The provisions contained in Regulation 21 are materially different from the conditions subject to which the session ending benefit was granted by the GO dated 19 November 2012 to the medical teachers in Government Medical Colleges. A comparison between the two provisions would indicate that Regulation 21 provided for an opt-out provision: in the absence of the exercise of the option, the teacher shall retire at the end of the academic year and an extension would be deemed to be have been… granted. In contrast, the notification dated 6 February 2015 postulates that the grant of a session ending benefit is subject to the fulfillment of stipulated conditions including of the work and conduct of the employee being satisfactory. There is no deeming provision extending the age of retirement. The decision in Ram Vir Sharma is hence distinguishable22. The decision of the Division Bench of the Allahabad High Court in Hema Pathak considered whether the teacher was rightly promoted by the Committee of Management on 18 May 2013. The DIOS held that the teacher had already attained the age of superannuation before the date on which a resolution for promotion was passed and was continuing till the end of the session and was hence not entitled to promotion. Dealing with the issue the Division Bench of the High Court held that the extension of service was for all purposes a part of service and the incumbent is treated to have retired at the end of the session. Hence, if before such retirement any benefit including promotion became due, it could not be denied in the absence of a provision to the contrary. The decision in the case of Hema Pathak is distinguishable and has no bearing on the construction of the GO dated 19 November 2012. Similarly, the decision of this Court in Dr Rajendra Chaudhary (supra) dealt with the validity of the deletion of the upper age limit for direct recruitment under the notification dated 6 February 2015. Dealing with this aspect, Mr Justice Nageswara Rao, speaking for this Court in the judgment dated 28 August 2019 observed:12…The High Court rejected the challenge to the enhancement of upper age limit for direct recruitment to the post of Professor in Dr. Juhi Singhal (supra) by holding that the Regulations framed by the MCI would prevail over the Service Rules. In the said judgment, the High Court was of the view that the Government Order dated 06.02.2015 only supplements the Rules and does not supplant them. The High Court further observed that the relaxation was done in view of the shortage of teachers in Medical Institutions who are qualified for appointment to the posts of Professors. The relaxation of the upper age limit was applicable only to those departments where 25 per cent or more posts were vacant and in respect of other departments, the State Government decided not to fill them up. In Navyug Abhiyan Samiti (supra), the Division Bench of the High Court followed the same logic and reasoning while considering the increase of upper age limit to the post of Principals in Government Medical Colleges. We see no reason to disagree with the said findings recorded by the High court. There can be no manner of doubt that the Regulations framed by the MCI relating to the conditions of service of Professors in Medical Colleges shall prevail over the Service Rules framed by the State of Uttar Pradesh. The Government Order dated 06.02.2015 has not been challenged by the Appellants for which reason they cannot make any grievance about the same23. The issue in Dr Rajendra Chaudharys case was distinct from the central point in this case. In the present case the issue is whether the appellant who had already attained the age of superannuation under the prevailing rules and was continuing until the end of the session would be entitled to the benefit of the enhancement of the age of retirement under the notification dated 6 February 2015. The decision in Dr Rajendra Chaudhary is hence distinguishable24. For the reasons that we have indicated, we hold that the appellant who attained the age of 60 years – the age of retirement which prevailed at the relevant time – was not entitled to the benefit of the notification dated 6 February 2015. The appellant was continuing until the end of the session (30 June 2015) after retirement, in terms of the decision dated 19 November 2012. He was not entitled to the enhanced age of retirement of 65 years.
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Raju Vs. The State by Inspector of Police | form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.11. Sir Alfred Wills in his admirable book "Wills Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted". 12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952. 13. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343 ), wherein it was observed thus: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622 ). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or ‘should and not ‘may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180 ), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261 ), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors. v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008). 16. PW-7s evidence is clear and cogent. His presence at the spot has been established. He used to have business transactions with the deceased. He stated about the present appellant holding a handle of soil cutter. Though the deceased and the present appellant were engaged in exchange of hot words, that could not have given an impression to PW-7 that accused would take the life of the deceased. Therefore, the fact that he left the place on being told by the deceased to do so cannot be a ground to dis-believe his evidence. According to him he had seen the deceased and the accused engaged in wordy tussle around 9.00 p.m. The wife of the deceased PW-1 found his dead body at about 9.30 p.m. The time gap when the deceased was last seen alive in the company of the accused and when his dead body was seen is not very large. Admittedly, the bone of contention between the deceased and the accused was non payment of the commission on account of which they were quarreling. The trial Court and the High Court have rightly held the appellant to be the author of the crime. We find no infirmity in the conclusion of the High Court to warrant interference. | 0[ds]12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.PW-7s evidence is clear and cogent. His presence at the spot has been established. He used to have business transactions with the deceased. He stated about the present appellant holding a handle of soil cutter. Though the deceased and the present appellant were engaged in exchange of hot words, that could not have given an impression to PW-7 that accused would take the life of the deceased. Therefore, the fact that he left the place on being told by the deceased to do so cannot be a ground to dis-believe his evidence. According to him he had seen the deceased and the accused engaged in wordy tussle around 9.00 p.m. The wife of the deceased PW-1 found his dead body at about 9.30 p.m. The time gap when the deceased was last seen alive in the company of the accused and when his dead body was seen is not very large. Admittedly, the bone of contention between the deceased and the accused was non payment of the commission on account of which they were quarreling. The trial Court and the High Court have rightly held the appellant to be the author of the crime. We find no infirmity in the conclusion of the High Court to warrant interference. | 0 | 2,883 | 268 | ### Instruction:
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form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.11. Sir Alfred Wills in his admirable book "Wills Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted". 12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952. 13. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343 ), wherein it was observed thus: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622 ). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or ‘should and not ‘may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180 ), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261 ), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors. v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008). 16. PW-7s evidence is clear and cogent. His presence at the spot has been established. He used to have business transactions with the deceased. He stated about the present appellant holding a handle of soil cutter. Though the deceased and the present appellant were engaged in exchange of hot words, that could not have given an impression to PW-7 that accused would take the life of the deceased. Therefore, the fact that he left the place on being told by the deceased to do so cannot be a ground to dis-believe his evidence. According to him he had seen the deceased and the accused engaged in wordy tussle around 9.00 p.m. The wife of the deceased PW-1 found his dead body at about 9.30 p.m. The time gap when the deceased was last seen alive in the company of the accused and when his dead body was seen is not very large. Admittedly, the bone of contention between the deceased and the accused was non payment of the commission on account of which they were quarreling. The trial Court and the High Court have rightly held the appellant to be the author of the crime. We find no infirmity in the conclusion of the High Court to warrant interference.
### Response:
0
### Explanation:
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.PW-7s evidence is clear and cogent. His presence at the spot has been established. He used to have business transactions with the deceased. He stated about the present appellant holding a handle of soil cutter. Though the deceased and the present appellant were engaged in exchange of hot words, that could not have given an impression to PW-7 that accused would take the life of the deceased. Therefore, the fact that he left the place on being told by the deceased to do so cannot be a ground to dis-believe his evidence. According to him he had seen the deceased and the accused engaged in wordy tussle around 9.00 p.m. The wife of the deceased PW-1 found his dead body at about 9.30 p.m. The time gap when the deceased was last seen alive in the company of the accused and when his dead body was seen is not very large. Admittedly, the bone of contention between the deceased and the accused was non payment of the commission on account of which they were quarreling. The trial Court and the High Court have rightly held the appellant to be the author of the crime. We find no infirmity in the conclusion of the High Court to warrant interference.
|
M/s. Shoeline Vs. Commissioner of Service Tax & Others | arise w.e.f. April 18, 2006. Relevant portion of the said order reads as under:"2. In view of the aforementioned judgments of the Honble Supreme Court, the service tax liability on any taxable service provided by a non resident or a person located outside India, to a recipient in India, would arise w.e.f. 18.4.2006, i.e., the date of enactment of section 66A of the Finance Act, 1994. The Board has accepted this position. Accordingly, the instruction F No. 275/7/201 0-CX8A, dated 30.6.2010 stands rescinded.3. Appropriate action may please be taken accordingly in the pending disputes."17. It is clear from the aforesaid circular that in pending disputes, the Government decided not to press for payment of service tax in such cases. Intention was clear, namely, this circular would not apply to those cases which were already over and were not pending on that date. Otherwise, all those persons who had already paid the demand earlier without protesting the same would start claiming refund of those payments. Therefore, this circular would not come to the aid of the appellant.18. Learned counsel for the appellant had relied upon the judgment of this Court in M/s. D. Cawasji & Co. & Ors. v. State of Mysore & Anr., (1975) 1 SCC 636. We have gone through the said judgment minutely. There is no need to discuss the facts of that case in detail. Suffice is to mention that in that case, claim for refund of the tax paid was made which tax was paid by mistake under legislation and was subsequently held to be void. The writ petitions were dismissed on the ground of delay and the Supreme Court upheld the decision of the High Court. We, therefore, fail to understand how this judgment helps the appellant. If at all, ratio of that judgment goes against the appellant.19. As pointed out above, insofar as present case is concerned, the appellant never challenged adjudicating orders dated February 27, 2008 and woke up only after the issue was settled in other cases.20. Having said so, we find one peculiar thing in the instant case. Though the service tax levied for the period in question was to the tune of Rs.11,62,728/- which stands paid by the appellant, liability on account of penalty and interest is also fastened upon the appellant. The legal position which is settled is that this service tax was not payable for the period in question i.e. July 9, 2004 to March 31, 2006 inasmuch as such a liability arises only w.e.f. April 18, 2006 after the insertion of the relevant charging Section 66A in the Finance Act, 1994. This legal position is not confined to only those who approached the Court but is a declaration of law. It can be treated as judgment in rem. We may reproduce following observations from the case of Arvind Kumar Srivastava & Ors.:"22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under."22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.22.2. However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India [K.C. Sharma v. Union of India, (1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.21. In a case like this, equities would be balanced by not insisting on payment of penalty and interest. Thus, when the appellant approached belatedly, it may not be entitled to refund of service tax already paid but at the same time, the appellant should not be called upon to pay any interest and penalty levied on a tax which was not payable at all in law. The High Court, to this extent, committed an error by not dealing with this aspect of the matter and dismissing the writ petition in its entirety. | 1[ds]9. From the aforesaid narration of facts, one thing is clear. The Joint Commissioner had passed the orders on February 27, 2008. No statutory appeal was preferred by the appellant challenging that order. The writ petition was filed only in March, 2012. During this period, the appellant was also making payment towards service tax demanded by the respondents without challenging the order. The appellant now wants to take advantage of other litigation pending in respect of same subject matter. When the appellant had not challenged the demand and was merely sitting on the fence, watching the proceedings in other similar cases, the decision in those cases cannot furnish any cause of action to the appellant to file the writ petition. Law on this behalf is crystal clear.It is clear from the aforesaid circular that in pending disputes, the Government decided not to press for payment of service tax in such cases. Intention was clear, namely, this circular would not apply to those cases which were already over and were not pending on that date. Otherwise, all those persons who had already paid the demand earlier without protesting the same would start claiming refund of those payments. Therefore, this circular would not come to the aid of theis no need to discuss the facts of that case in detail. Suffice is to mention that in that case, claim for refund of the tax paid was made which tax was paid by mistake under legislation and was subsequently held to be void. The writ petitions were dismissed on the ground of delay and the Supreme Court upheld the decision of the High Court. We, therefore, fail to understand how this judgment helps the appellant. If at all, ratio of that judgment goes against the appellant.19. As pointed out above, insofar as present case is concerned, the appellant never challenged adjudicating orders dated February 27, 2008 and woke up only after the issue was settled in other cases.20. Having said so, we find one peculiar thing in the instant case. Though the service tax levied for the period in question was to the tune of Rs.11,62,728/which stands paid by the appellant, liability on account of penalty and interest is also fastened upon the appellant. The legal position which is settled is that this service tax was not payable for the period in question i.e. July 9, 2004 to March 31, 2006 inasmuch as such a liability arises only w.e.f. April 18, 2006 after the insertion of the relevant charging Section 66A in the Finance Act, 1994. This legal position is not confined to only those who approached the Court but is a declaration of law. It can be treated as judgment in rem.In a case like this, equities would be balanced by not insisting on payment of penalty and interest. Thus, when the appellant approached belatedly, it may not be entitled to refund of service tax already paid but at the same time, the appellant should not be called upon to pay any interest and penalty levied on a tax which was not payable at all in law. The High Court, to this extent, committed an error by not dealing with this aspect of the matter and dismissing the writ petition in its entirety. | 1 | 3,975 | 602 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
arise w.e.f. April 18, 2006. Relevant portion of the said order reads as under:"2. In view of the aforementioned judgments of the Honble Supreme Court, the service tax liability on any taxable service provided by a non resident or a person located outside India, to a recipient in India, would arise w.e.f. 18.4.2006, i.e., the date of enactment of section 66A of the Finance Act, 1994. The Board has accepted this position. Accordingly, the instruction F No. 275/7/201 0-CX8A, dated 30.6.2010 stands rescinded.3. Appropriate action may please be taken accordingly in the pending disputes."17. It is clear from the aforesaid circular that in pending disputes, the Government decided not to press for payment of service tax in such cases. Intention was clear, namely, this circular would not apply to those cases which were already over and were not pending on that date. Otherwise, all those persons who had already paid the demand earlier without protesting the same would start claiming refund of those payments. Therefore, this circular would not come to the aid of the appellant.18. Learned counsel for the appellant had relied upon the judgment of this Court in M/s. D. Cawasji & Co. & Ors. v. State of Mysore & Anr., (1975) 1 SCC 636. We have gone through the said judgment minutely. There is no need to discuss the facts of that case in detail. Suffice is to mention that in that case, claim for refund of the tax paid was made which tax was paid by mistake under legislation and was subsequently held to be void. The writ petitions were dismissed on the ground of delay and the Supreme Court upheld the decision of the High Court. We, therefore, fail to understand how this judgment helps the appellant. If at all, ratio of that judgment goes against the appellant.19. As pointed out above, insofar as present case is concerned, the appellant never challenged adjudicating orders dated February 27, 2008 and woke up only after the issue was settled in other cases.20. Having said so, we find one peculiar thing in the instant case. Though the service tax levied for the period in question was to the tune of Rs.11,62,728/- which stands paid by the appellant, liability on account of penalty and interest is also fastened upon the appellant. The legal position which is settled is that this service tax was not payable for the period in question i.e. July 9, 2004 to March 31, 2006 inasmuch as such a liability arises only w.e.f. April 18, 2006 after the insertion of the relevant charging Section 66A in the Finance Act, 1994. This legal position is not confined to only those who approached the Court but is a declaration of law. It can be treated as judgment in rem. We may reproduce following observations from the case of Arvind Kumar Srivastava & Ors.:"22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under."22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.22.2. However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India [K.C. Sharma v. Union of India, (1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.21. In a case like this, equities would be balanced by not insisting on payment of penalty and interest. Thus, when the appellant approached belatedly, it may not be entitled to refund of service tax already paid but at the same time, the appellant should not be called upon to pay any interest and penalty levied on a tax which was not payable at all in law. The High Court, to this extent, committed an error by not dealing with this aspect of the matter and dismissing the writ petition in its entirety.
### Response:
1
### Explanation:
9. From the aforesaid narration of facts, one thing is clear. The Joint Commissioner had passed the orders on February 27, 2008. No statutory appeal was preferred by the appellant challenging that order. The writ petition was filed only in March, 2012. During this period, the appellant was also making payment towards service tax demanded by the respondents without challenging the order. The appellant now wants to take advantage of other litigation pending in respect of same subject matter. When the appellant had not challenged the demand and was merely sitting on the fence, watching the proceedings in other similar cases, the decision in those cases cannot furnish any cause of action to the appellant to file the writ petition. Law on this behalf is crystal clear.It is clear from the aforesaid circular that in pending disputes, the Government decided not to press for payment of service tax in such cases. Intention was clear, namely, this circular would not apply to those cases which were already over and were not pending on that date. Otherwise, all those persons who had already paid the demand earlier without protesting the same would start claiming refund of those payments. Therefore, this circular would not come to the aid of theis no need to discuss the facts of that case in detail. Suffice is to mention that in that case, claim for refund of the tax paid was made which tax was paid by mistake under legislation and was subsequently held to be void. The writ petitions were dismissed on the ground of delay and the Supreme Court upheld the decision of the High Court. We, therefore, fail to understand how this judgment helps the appellant. If at all, ratio of that judgment goes against the appellant.19. As pointed out above, insofar as present case is concerned, the appellant never challenged adjudicating orders dated February 27, 2008 and woke up only after the issue was settled in other cases.20. Having said so, we find one peculiar thing in the instant case. Though the service tax levied for the period in question was to the tune of Rs.11,62,728/which stands paid by the appellant, liability on account of penalty and interest is also fastened upon the appellant. The legal position which is settled is that this service tax was not payable for the period in question i.e. July 9, 2004 to March 31, 2006 inasmuch as such a liability arises only w.e.f. April 18, 2006 after the insertion of the relevant charging Section 66A in the Finance Act, 1994. This legal position is not confined to only those who approached the Court but is a declaration of law. It can be treated as judgment in rem.In a case like this, equities would be balanced by not insisting on payment of penalty and interest. Thus, when the appellant approached belatedly, it may not be entitled to refund of service tax already paid but at the same time, the appellant should not be called upon to pay any interest and penalty levied on a tax which was not payable at all in law. The High Court, to this extent, committed an error by not dealing with this aspect of the matter and dismissing the writ petition in its entirety.
|
Associated Engineering Co Vs. Government Of Andhra Pradesh And Anr | umpire or arbitrator cannot widen his jurisdiction by deciding a question not referred to him by the parties or by deciding a question otherwise than in accordance with the contract. He cannot say that he does not care what the contract says. He is bound by it. It must bear his decision. He cannot travel outside its bounds. If he exceeded his jurisdiction by so doing, his award would be liable to be set aside. As stated by Lord Parmoor : (Attorney-General for Manitoba v. Kelly, 1922 (1) AC 268, 276 : 1922 ALLER 69 (AC p. 276) "It would be impossible to allow an umpire to arrogate to himself jurisdiction over a question which, on the true construction of the submission, was not referred to him. An umpire cannot widen the area of his jurisdiction by holding, contrary to the fact, that the matter which he affects to decide is within the submission of the parties." * Evidence of matters not appearing on the face of the award would be admissible to decide whether the arbitrator travelled outside the bounds of the contract and thus exceeded his jurisdiction. In order to see what the jurisdiction of the arbitrator is, it is open to the court to see what dispute was submitted to him. If that is not clear from the award, it is open to the court to have recourse to outside sources. The court can look at the affidavits and pleadings of parties; the court can look at the agreement itself. Bunge & Co. v. Dewar and Webb (1921 8 L1 L Rep 436) 27. If the arbitrator commits an error in the construction of the contract, that is an error within his jurisdiction. But if he wanders outside the contract and deals with matters not allotted to him, he commits a jurisdictional error. Such error going to his jurisdiction can be established by looking into material outside the award. Extrinsic evidence is admissible in such cases because the dispute is not something which arises under or in relation to the contract or dependent on the construction of the contract or to be determined within the award. The dispute as to jurisdiction is a matter which is outside the award or outside whatever may be said about it in the award. The ambiguity of the award can, in such cases, be resolved by admitting extrinsic evidence. The rationale of this rule is that the nature of the dispute is something which has to be determined outside and independent of what appears in the award. Such jurisdictional error needs to be proved by evidence extrinsic to the award. (See Alopi Parshad & Sons, Ltd. v. Union of India 1960 (2) SCR 793 : 1960 AIR(SC) 588); Bunge & Co. v. Dewar & Webb (1921 8 L1 L Rep 436); Christopher Brown Ltd. v. Genossenschaft Oesterreichischer (1954 1 QB 8 : 1953 (3) WLR 689); Rex v. Fulham (1951 2 QB 1 : 1951 (1) ALLER 482; Falkingham v. Victorian Railways Commission 1900 AC 452 : 69 LJPC 89); Rex v. All Saints, Southampton (1828 7 B&C 785 : 1 Man & Rey KB 663); Laing (James), Sons & Co. (M/C) Ltd. v. Eastcheap Dried Fruit Co. (1961 1 L1 L Rep 142, 145); Dalmia Dairy Industries Ltd. v. National Bank of Pakistan (1978 2 L1 L Rep 223); Heyman v. Darwins Ltd. 1942 AC 356 : 1942 (1) ALLER 337; Union of India v. Kishorilal Gupta & Bros. 1959 AIR(SC) 1362 : 1960 (1) SCR 493 ); Renusagar Power Co. Ltd. v. General Electric Company 1984 (4) SCC 679 : 1985 (1) SCR 432 ); Jivarajbhai v. Chintamanrao 1964 (5) SCR 480 : 1965 AIR(SC) 214); Gobardhan Das v. Lachhmi Ram 1954 AIR(SC) 689, 692); Thawardas Pherumal v. Union of India 1955 (2) SCR 48 : 1955 AIR(SC) 468); Omanhene Kobina Foli v. Chief Obeng Akessee 1934 AIR(PC) 185, 188 : 40 MLW 138); F.R. Absalom, Ltd. v. Great Western (London) Garden Village Society, Limited 1933 AC 592 : 1933 ALLER 616 and M. Golodetz v. Schrier (1947 80 L1 L Rep 647).) 28. In the instant case, the umpire decided matters strikingly outside his jurisdiction. He outstepped the confines of the contract. He wandered far outside the designated area. He digressed far away from the allotted task. His error arose not by misreading or misconstruing or misunderstanding the contract, but by acting in excess of what was agreed. It was an error going to the root of his jurisdiction because he asked himself the wrong question, disregarded the contract and awarded in excess of his authority. In many respects, the award flew in the face of provisions of the contract to the contrary. (See the principles stated in Anisminic Ltd. v. Foreign Compensation Commission 1969 (2) AC 147 : 1969 (1) ALLER 208; Pearlman v. Keepers and Governors of Harrow School (1979 1 QB 56 : 1979 (1) ALLER 365; Lee v. Showmens Guild of Great Britain (1952 2 QB 239 : 1952 (1) ALLER 1175; M.L. Sethi v. R.P. Kapur 1972 (2) SCC 427 : 1973 (1) SCR 697 : 1972 AIR(SC) 2379); Managing Director, J. & K. Handicrafts v. Good Luck Carpets 1990 (4) SCC 740 : 1990 AIR(SC) 864); State of A.P. v. R.V. Rayanim 1990 (1) SCC 433 : 1990 AIR(SC) 626). See also Mustill and Boyds Commercial Arbitration, 2nd edn., Halsburys Laws of England, Vol. II, 4th edn.) 29. The umpire, in our view, acted unreasonably, irrationally and capriciously in ignoring the limits and the clear provisions of the contract. In awarding claims which are totally opposed top the provisions of the contract to which he made specific reference in allowing them, he has misdirected and misconducted himself by manifestly disregarding the limits of his jurisdiction and the bounds of the contract from which the derived his authority thereby acting ultra fines compromissi30. In the circumstances, we affirm the judgment of the High Court under appeals except in respect of claim No. II. | 0[ds]As regards this claim, Mr Dewan reiterates his contention that the award is silent as to the reasons and, therefore, the court should not interfere. Mr Madhava Reddy on the other hand submits that the award speaks as to the reasons for allowing the claim for extra amount towards additional lead for water i.e. for 3 kms. over and above the specified lead of 2 kms. But, counsel says, the agreement provides for no payment at all for any lead and much less for any additional lead. He refers to the specific provision of the agreement regarding water. He says that the Contractor had to make its own arrangements for supply of water at work site for all purposes including quarry. There is no provision in the contract for making any payment to the Contractor for the water brought by it to the site. In the absence of any such provision, counsel says, it is preposterous that the arbitrator should have awarded extra amount for additional lead for water. The contract specifically stated that it was the responsibility of the Contractor to make its own arrangements for the supply of water. The government gave no assurance to the Contractor regarding the availability of water or the prices payable therefor. The umpire, therefore, had no jurisdiction to allow claim No.It is not disputed on behalf of the Contractor that the formula followed by the arbitrator, as seen from the award under claim No. II, is different from the formula prescribed under the contract. But Mr K.R. Chowdhury, one of the counsel appearing for the Contractor, points out that the contract provided for payment of all wages according to the current rates, and, therefore, the arbitrator was well within his jurisdiction to make an award by adopting a formula in keeping with the enhanced rates of wages, and the High Court, he contends, rightly decreed the amounts under that claim in terms of theIn the instant case, the umpire decided matters strikingly outside his jurisdiction. He outstepped the confines of the contract. He wandered far outside the designated area. He digressed far away from the allotted task. His error arose not by misreading or misconstruing or misunderstanding the contract, but by acting in excess of what was agreed. It was an error going to the root of his jurisdiction because he asked himself the wrong question, disregarded the contract and awarded in excess of his authority. In many respects, the award flew in the face of provisions of the contract to the contrary.The umpire, in our view, acted unreasonably, irrationally and capriciously in ignoring the limits and the clear provisions of the contract. In awarding claims which are totally opposed top the provisions of the contract to which he made specific reference in allowing them, he has misdirected and misconducted himself by manifestly disregarding the limits of his jurisdiction and the bounds of the contract from which the derived his authority thereby acting ultra fines compromissi30. In the circumstances, we affirm the judgment of the High Court under appeals except in respect of claim No. II. | 0 | 5,444 | 570 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
umpire or arbitrator cannot widen his jurisdiction by deciding a question not referred to him by the parties or by deciding a question otherwise than in accordance with the contract. He cannot say that he does not care what the contract says. He is bound by it. It must bear his decision. He cannot travel outside its bounds. If he exceeded his jurisdiction by so doing, his award would be liable to be set aside. As stated by Lord Parmoor : (Attorney-General for Manitoba v. Kelly, 1922 (1) AC 268, 276 : 1922 ALLER 69 (AC p. 276) "It would be impossible to allow an umpire to arrogate to himself jurisdiction over a question which, on the true construction of the submission, was not referred to him. An umpire cannot widen the area of his jurisdiction by holding, contrary to the fact, that the matter which he affects to decide is within the submission of the parties." * Evidence of matters not appearing on the face of the award would be admissible to decide whether the arbitrator travelled outside the bounds of the contract and thus exceeded his jurisdiction. In order to see what the jurisdiction of the arbitrator is, it is open to the court to see what dispute was submitted to him. If that is not clear from the award, it is open to the court to have recourse to outside sources. The court can look at the affidavits and pleadings of parties; the court can look at the agreement itself. Bunge & Co. v. Dewar and Webb (1921 8 L1 L Rep 436) 27. If the arbitrator commits an error in the construction of the contract, that is an error within his jurisdiction. But if he wanders outside the contract and deals with matters not allotted to him, he commits a jurisdictional error. Such error going to his jurisdiction can be established by looking into material outside the award. Extrinsic evidence is admissible in such cases because the dispute is not something which arises under or in relation to the contract or dependent on the construction of the contract or to be determined within the award. The dispute as to jurisdiction is a matter which is outside the award or outside whatever may be said about it in the award. The ambiguity of the award can, in such cases, be resolved by admitting extrinsic evidence. The rationale of this rule is that the nature of the dispute is something which has to be determined outside and independent of what appears in the award. Such jurisdictional error needs to be proved by evidence extrinsic to the award. (See Alopi Parshad & Sons, Ltd. v. Union of India 1960 (2) SCR 793 : 1960 AIR(SC) 588); Bunge & Co. v. Dewar & Webb (1921 8 L1 L Rep 436); Christopher Brown Ltd. v. Genossenschaft Oesterreichischer (1954 1 QB 8 : 1953 (3) WLR 689); Rex v. Fulham (1951 2 QB 1 : 1951 (1) ALLER 482; Falkingham v. Victorian Railways Commission 1900 AC 452 : 69 LJPC 89); Rex v. All Saints, Southampton (1828 7 B&C 785 : 1 Man & Rey KB 663); Laing (James), Sons & Co. (M/C) Ltd. v. Eastcheap Dried Fruit Co. (1961 1 L1 L Rep 142, 145); Dalmia Dairy Industries Ltd. v. National Bank of Pakistan (1978 2 L1 L Rep 223); Heyman v. Darwins Ltd. 1942 AC 356 : 1942 (1) ALLER 337; Union of India v. Kishorilal Gupta & Bros. 1959 AIR(SC) 1362 : 1960 (1) SCR 493 ); Renusagar Power Co. Ltd. v. General Electric Company 1984 (4) SCC 679 : 1985 (1) SCR 432 ); Jivarajbhai v. Chintamanrao 1964 (5) SCR 480 : 1965 AIR(SC) 214); Gobardhan Das v. Lachhmi Ram 1954 AIR(SC) 689, 692); Thawardas Pherumal v. Union of India 1955 (2) SCR 48 : 1955 AIR(SC) 468); Omanhene Kobina Foli v. Chief Obeng Akessee 1934 AIR(PC) 185, 188 : 40 MLW 138); F.R. Absalom, Ltd. v. Great Western (London) Garden Village Society, Limited 1933 AC 592 : 1933 ALLER 616 and M. Golodetz v. Schrier (1947 80 L1 L Rep 647).) 28. In the instant case, the umpire decided matters strikingly outside his jurisdiction. He outstepped the confines of the contract. He wandered far outside the designated area. He digressed far away from the allotted task. His error arose not by misreading or misconstruing or misunderstanding the contract, but by acting in excess of what was agreed. It was an error going to the root of his jurisdiction because he asked himself the wrong question, disregarded the contract and awarded in excess of his authority. In many respects, the award flew in the face of provisions of the contract to the contrary. (See the principles stated in Anisminic Ltd. v. Foreign Compensation Commission 1969 (2) AC 147 : 1969 (1) ALLER 208; Pearlman v. Keepers and Governors of Harrow School (1979 1 QB 56 : 1979 (1) ALLER 365; Lee v. Showmens Guild of Great Britain (1952 2 QB 239 : 1952 (1) ALLER 1175; M.L. Sethi v. R.P. Kapur 1972 (2) SCC 427 : 1973 (1) SCR 697 : 1972 AIR(SC) 2379); Managing Director, J. & K. Handicrafts v. Good Luck Carpets 1990 (4) SCC 740 : 1990 AIR(SC) 864); State of A.P. v. R.V. Rayanim 1990 (1) SCC 433 : 1990 AIR(SC) 626). See also Mustill and Boyds Commercial Arbitration, 2nd edn., Halsburys Laws of England, Vol. II, 4th edn.) 29. The umpire, in our view, acted unreasonably, irrationally and capriciously in ignoring the limits and the clear provisions of the contract. In awarding claims which are totally opposed top the provisions of the contract to which he made specific reference in allowing them, he has misdirected and misconducted himself by manifestly disregarding the limits of his jurisdiction and the bounds of the contract from which the derived his authority thereby acting ultra fines compromissi30. In the circumstances, we affirm the judgment of the High Court under appeals except in respect of claim No. II.
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As regards this claim, Mr Dewan reiterates his contention that the award is silent as to the reasons and, therefore, the court should not interfere. Mr Madhava Reddy on the other hand submits that the award speaks as to the reasons for allowing the claim for extra amount towards additional lead for water i.e. for 3 kms. over and above the specified lead of 2 kms. But, counsel says, the agreement provides for no payment at all for any lead and much less for any additional lead. He refers to the specific provision of the agreement regarding water. He says that the Contractor had to make its own arrangements for supply of water at work site for all purposes including quarry. There is no provision in the contract for making any payment to the Contractor for the water brought by it to the site. In the absence of any such provision, counsel says, it is preposterous that the arbitrator should have awarded extra amount for additional lead for water. The contract specifically stated that it was the responsibility of the Contractor to make its own arrangements for the supply of water. The government gave no assurance to the Contractor regarding the availability of water or the prices payable therefor. The umpire, therefore, had no jurisdiction to allow claim No.It is not disputed on behalf of the Contractor that the formula followed by the arbitrator, as seen from the award under claim No. II, is different from the formula prescribed under the contract. But Mr K.R. Chowdhury, one of the counsel appearing for the Contractor, points out that the contract provided for payment of all wages according to the current rates, and, therefore, the arbitrator was well within his jurisdiction to make an award by adopting a formula in keeping with the enhanced rates of wages, and the High Court, he contends, rightly decreed the amounts under that claim in terms of theIn the instant case, the umpire decided matters strikingly outside his jurisdiction. He outstepped the confines of the contract. He wandered far outside the designated area. He digressed far away from the allotted task. His error arose not by misreading or misconstruing or misunderstanding the contract, but by acting in excess of what was agreed. It was an error going to the root of his jurisdiction because he asked himself the wrong question, disregarded the contract and awarded in excess of his authority. In many respects, the award flew in the face of provisions of the contract to the contrary.The umpire, in our view, acted unreasonably, irrationally and capriciously in ignoring the limits and the clear provisions of the contract. In awarding claims which are totally opposed top the provisions of the contract to which he made specific reference in allowing them, he has misdirected and misconducted himself by manifestly disregarding the limits of his jurisdiction and the bounds of the contract from which the derived his authority thereby acting ultra fines compromissi30. In the circumstances, we affirm the judgment of the High Court under appeals except in respect of claim No. II.
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Industrial Development Corporation of Orissa Limited Vs. Union of India and Others | decision in the Indian Metals case, we find that on the issue of the requirement of captive mining, this Court had expressly refrained from giving an opinion on the issue as it did not arise for its consideration; however, it did recommend that chromite ore be supplied to needy applicants in an equitable manner. It must be pointed out that nowhere in the Rao Report nor in the report of the Committee, has the requirement of captive mining been interpreted to mean that every industry within the State would, by reason of its existence, be entitled to a mining lease. The captive requirement of an industry is a factor that has to be kept in mind while granting leases but, it is to be done on a comparative scale. While the Central Government exercises its discretion in granting or renewing a lease, it is clear that the capacity of an industry to effectively exploit the ore, will be a predominant considerations The submission of the learned counsel that none of the other parties before this Court required the mineral ore for captive consumption cannot be accepted. This aspect has bee n specifically examined by the Committee at pages 260-263 of its report. In order to properly appreciate the issue of captive consumption, the Committee examined the needs of the other parties before it. It stated that each of these partie s had manufacturing industries which produce value-added products and earn considerable foreign exchange for the country, and it was therefore of the view that an analysis of their total requirement was necessary in the interests of mineral development as also that of the nation. Based on the information supplied to it, the Committee thereafter made an assessment, for a total period of 50 years, of the captive and net requirements of ICCL, IMFA, FACOR and JSL. At page 349 of its report , the Committee has also taken note of the projected captive and net requirements of Ispat Alloys. This being a finding of fact that has been recorded by the Committee, we have to accept that the argument of captive consumption does have a basis in the facts of the present case. On the issue of the application of the principle of equitable distribution, we are of the view that the Committee had, after having taken note of the prevailing situation and the problems faced by needy manufacturers, taken the correct view in recommending its implementation.We are, therefore, of the view that the Committee had correctly interpreted the relevant material available for appreciating the concept of "mineral development" and adopting the stance that it encompassed the concept of captive mining as well as the principle of equitable distribution. 5. Validity of the Central Governments order dated August 17, 1995 which declared that renewing TISCOs lease over an area of 406 hectares would satisfy its needs and requirements. 30. The Committee made an estimate of the captive mining requirement of each of the parties appearing before it after coming to the conclusion that this was a fundamental guideline to be kept in mind while renewing TISCOs lease. To complete this exercise, it relied upon the submissions of counsel, technical evidence submitted a them and the relevant technical information available. In the case of TISCO, after taking into account all the technical grounds and objections put forth by the learned counsel for TISCO, the Committee came to the conclusion that its lease should be granted renewal for a period of 20 years over a contiguous area of 461 hectares. By its order dated August 17, 1995, the Central Government while endorsing the finding of the Committee recommended to the State Government that TISCOs lease be renewed for 20 years over a reduced area of 406 hectares. The reasons for the reduction were also provided. 31. The decision of the Committee and the consequent order of the Central Government have been assailed by the learned counsel for TISCO on a number or tech nical grounds. Many of these have already been dealt with by the Committee. At this juncture, we think it fit to make a few observations about our general approach to the entire case. This is a case of the type where legal issues a re intertwined with those involving determination of policy and plethora of technical issues. In such a situation, courts of law have to be very wary and must exercise their jurisdiction with circumspection for they must not transgress into the realm of policy making, unless the policy is inconsistent with the constitution and the laws. In the present matter, in its impugned judgment, the High Court had directed the Central to set up a committee to analyses the entire gamut of issues thrown up by the present controversy. The Central Government had consequently constituted a committee comprising high level functionaries drawn from various Governmental/ institutional agencies who were equipped to deal with the en tire range of technical and long-term consideration involved. This Committee, in reaching its decision, consulted a number of policy documents and approached the issue from a holistic perspective. We have sought to give our opinion on the legal issues that arises for out consideration. From the scheme of the Act it is clear that the Central Government is vested with discretion to determine the policy regarding the grant or renewal of leases. On matters affecting policy and those that require technical expertise, we have shown deference to and followed the recommendations of, the Committee which is more qualified to address these issues.We are, therefore, of the view that the Central Government was justified in issuing its order dated August 17, 1995. 32. For the foregoing reasons, we are of the view that the High Court and the Committee were justified in the view they took. Consequently the appeals filed by TISCO stand dismissed. IDCOL has filed the appeals on much the same grounds as TISCO while additionally claiming that the Committee should have heard its claim too while hearing the other parties. | 0[ds]From this, the High Court inferred that the subsequent renewal of lease as envisaged and contemplated under Section 8(3) refers to very rare circumstances which may require renewals to be made. The Court, therefore, held that the conditions which make for the rare cases and diverse circumstances have to be clearly and pointedly articulated, for which the recording of proper and detailed reasons was necessaryWe are of the view, however, that the issue can be decided without locking horn s with the controversy over the situations in which utterances in the legislature are relevant for statutory interpretation. To us, the language of Section 8(3) is quite clear in its import. Ordinarily, a lease is not to be granted beyond the time and the number of periods mentioned in clauses (1)and. If, however, the Central Government is of the view that to allow a lessees lease to be renewed further would be in the interest of mineral development, then, it is empowered to do so, provided there exist on record sound reasons for such an actionandthose reasons are recorded. Since such a measure has been incorporated in the legislative scheme as a safeguard against arbitrariness, the letterandspirit of the law must be adhered to in a strict manner.We have studied the orders of the Central Government dated June 3, 1993andOctober 5, 1993. The order dated June 3, 1993 is a statement which declares the grant of a second renewal to TISCO. It does not profess to give any reasons for such a decision, for that reason, falls foul of the requirement of Section 8(3), as has rightly been pointed out by the High Court. The order dated October 5, 1993 is more generous in terms of the reasons it offers; however, the High Court was of the view that, since it did not take into account the findings of the Rao Report, the decision of this court in the Indian Metals caseandthe National Mineral Policy, it could not have justified its decision as having been made after a proper analysis of the interest of mineral developmentWe are, therefore, of the view that the High Courtandthe Committee were justified in taking note of the findings of the Rao Report as well as the observations of this Court in the Indian Metals case in considering he issue of renewal of TISCOs leaseSince the Order dated October 5, 1993 did not make any reference to the Rao Report or the decision of this Court, we feel that the High Court was justified in striking it down for not having taken into account all t he factors relating to a proper appreciation of the concept of mineral developmentIt must also be noted that in its order dated August 17, 1995, the Central Government had, in exercise of powers conferred on it by Rule 59(2) relaxed the requirement of Rule 59(1) to enable the other parties to be granted leases. We are of the view that the High Court had taken the correct step in allowing the prospective applicants to put forth their points of view with reg rd to the renewal of TISCOs lease. As we have already pointed out, these issues involve considerably high stakes, both in terms of commercial valueandthe effect that such a decision will have on the concept of mineral developmentandthe consequent national interest. To that extent, those likely to be affectedandindeed, those who can legitimately have a stake in the proper formulation of such a vital policy, can be heard. No exception can be taken to the High Court treating them as proper partiesanddirecting the Committee to hear themWe, therefore, hold that both the High Courtandthe Committee were justified in hearing the prospective applicants while considering the issue of renewal of TISCOs leaseFor the foregoing reason, the Committee was the view that the concept of mineral development" under Section 8(3) of the Act requires the assessment of the captive mining requi rement of different industries as also the application of the principle of equitable distribution of mining leasesOn the issue of the application of the principle of equitable distribution, we are of the view that the Committee had, after having taken note of the prevailing situationandthe problems faced by needy manufacturers, taken the correct view in recommending its implementation.We are, therefore, of the view that the Committee had correctly interpreted the relevant material available for appreciating the concept of "mineral development"andadopting the stance that it encompassed the concept of captive mining as well as the principle of equitable distributionOn the issue of the application of the principle of equitable distribution, we are of the view that the Committee had, after having taken note of the prevailing situationandthe problems faced by needy manufacturers, taken the correct view in recommending its implementation.We are, therefore, of the view that the Committee had correctly interpreted the relevant material available for appreciating the concept of "mineral development"andadopting the stance that it encompassed the concept of captive mining as well as the principle of equitable distributionThe decision of the Committeeandthe consequent order of the Central Government have been assailed by the learned counsel for TISCO on a number or tech nical grounds. Many of these have already been dealt with by the Committee. At this juncture, we think it fit to make a few observations about our general approach to the entire case. This is a case of the type where legal issues a re intertwined with those involving determination of policyandplethora of technical issues. In such a situation, courts of law have to be very waryandmust exercise their jurisdiction with circumspection for they must not transgress into the realm of policy making, unless the policy is inconsistent with the constitutionandthe laws. In the present matter, in its impugned judgment, the High Court had directed the Central to set up a committee to analyses the entire gamut of issues thrown up by the present controversy. The Central Government had consequently constituted a committee comprising high level functionaries drawn from various Governmental/ institutional agencies who were equipped to deal with the en tire range oftechnicalandm consideration involved. This Committee, in reaching its decision, consulted a number of policy documentsandapproached the issue from a holistic perspective. We have sought to give our opinion on the legal issues that arises for out consideration. From the scheme of the Act it is clear that the Central Government is vested with discretion to determine the policy regarding the grant or renewal of leases. On matters affecting policyandthose that requiretechnicalexpertise, we have shown deference toandfollowed the recommendations of, the Committee which is more qualified to address these issues.We are, therefore, of the view that the Central Government was justified in issuing its order dated August 17, 1995For the foregoing reasons, we are of the view that the High Courtandthe Committee were justified in the view they took. Consequently the appeals filed by TISCOdismissed. IDCOL has filed the appeals on much the same grounds as TISCO while additionally claiming that the Committee should have heard its claim too while hearing the other parties. | 0 | 10,278 | 1,291 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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decision in the Indian Metals case, we find that on the issue of the requirement of captive mining, this Court had expressly refrained from giving an opinion on the issue as it did not arise for its consideration; however, it did recommend that chromite ore be supplied to needy applicants in an equitable manner. It must be pointed out that nowhere in the Rao Report nor in the report of the Committee, has the requirement of captive mining been interpreted to mean that every industry within the State would, by reason of its existence, be entitled to a mining lease. The captive requirement of an industry is a factor that has to be kept in mind while granting leases but, it is to be done on a comparative scale. While the Central Government exercises its discretion in granting or renewing a lease, it is clear that the capacity of an industry to effectively exploit the ore, will be a predominant considerations The submission of the learned counsel that none of the other parties before this Court required the mineral ore for captive consumption cannot be accepted. This aspect has bee n specifically examined by the Committee at pages 260-263 of its report. In order to properly appreciate the issue of captive consumption, the Committee examined the needs of the other parties before it. It stated that each of these partie s had manufacturing industries which produce value-added products and earn considerable foreign exchange for the country, and it was therefore of the view that an analysis of their total requirement was necessary in the interests of mineral development as also that of the nation. Based on the information supplied to it, the Committee thereafter made an assessment, for a total period of 50 years, of the captive and net requirements of ICCL, IMFA, FACOR and JSL. At page 349 of its report , the Committee has also taken note of the projected captive and net requirements of Ispat Alloys. This being a finding of fact that has been recorded by the Committee, we have to accept that the argument of captive consumption does have a basis in the facts of the present case. On the issue of the application of the principle of equitable distribution, we are of the view that the Committee had, after having taken note of the prevailing situation and the problems faced by needy manufacturers, taken the correct view in recommending its implementation.We are, therefore, of the view that the Committee had correctly interpreted the relevant material available for appreciating the concept of "mineral development" and adopting the stance that it encompassed the concept of captive mining as well as the principle of equitable distribution. 5. Validity of the Central Governments order dated August 17, 1995 which declared that renewing TISCOs lease over an area of 406 hectares would satisfy its needs and requirements. 30. The Committee made an estimate of the captive mining requirement of each of the parties appearing before it after coming to the conclusion that this was a fundamental guideline to be kept in mind while renewing TISCOs lease. To complete this exercise, it relied upon the submissions of counsel, technical evidence submitted a them and the relevant technical information available. In the case of TISCO, after taking into account all the technical grounds and objections put forth by the learned counsel for TISCO, the Committee came to the conclusion that its lease should be granted renewal for a period of 20 years over a contiguous area of 461 hectares. By its order dated August 17, 1995, the Central Government while endorsing the finding of the Committee recommended to the State Government that TISCOs lease be renewed for 20 years over a reduced area of 406 hectares. The reasons for the reduction were also provided. 31. The decision of the Committee and the consequent order of the Central Government have been assailed by the learned counsel for TISCO on a number or tech nical grounds. Many of these have already been dealt with by the Committee. At this juncture, we think it fit to make a few observations about our general approach to the entire case. This is a case of the type where legal issues a re intertwined with those involving determination of policy and plethora of technical issues. In such a situation, courts of law have to be very wary and must exercise their jurisdiction with circumspection for they must not transgress into the realm of policy making, unless the policy is inconsistent with the constitution and the laws. In the present matter, in its impugned judgment, the High Court had directed the Central to set up a committee to analyses the entire gamut of issues thrown up by the present controversy. The Central Government had consequently constituted a committee comprising high level functionaries drawn from various Governmental/ institutional agencies who were equipped to deal with the en tire range of technical and long-term consideration involved. This Committee, in reaching its decision, consulted a number of policy documents and approached the issue from a holistic perspective. We have sought to give our opinion on the legal issues that arises for out consideration. From the scheme of the Act it is clear that the Central Government is vested with discretion to determine the policy regarding the grant or renewal of leases. On matters affecting policy and those that require technical expertise, we have shown deference to and followed the recommendations of, the Committee which is more qualified to address these issues.We are, therefore, of the view that the Central Government was justified in issuing its order dated August 17, 1995. 32. For the foregoing reasons, we are of the view that the High Court and the Committee were justified in the view they took. Consequently the appeals filed by TISCO stand dismissed. IDCOL has filed the appeals on much the same grounds as TISCO while additionally claiming that the Committee should have heard its claim too while hearing the other parties.
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### Explanation:
reasons for such an actionandthose reasons are recorded. Since such a measure has been incorporated in the legislative scheme as a safeguard against arbitrariness, the letterandspirit of the law must be adhered to in a strict manner.We have studied the orders of the Central Government dated June 3, 1993andOctober 5, 1993. The order dated June 3, 1993 is a statement which declares the grant of a second renewal to TISCO. It does not profess to give any reasons for such a decision, for that reason, falls foul of the requirement of Section 8(3), as has rightly been pointed out by the High Court. The order dated October 5, 1993 is more generous in terms of the reasons it offers; however, the High Court was of the view that, since it did not take into account the findings of the Rao Report, the decision of this court in the Indian Metals caseandthe National Mineral Policy, it could not have justified its decision as having been made after a proper analysis of the interest of mineral developmentWe are, therefore, of the view that the High Courtandthe Committee were justified in taking note of the findings of the Rao Report as well as the observations of this Court in the Indian Metals case in considering he issue of renewal of TISCOs leaseSince the Order dated October 5, 1993 did not make any reference to the Rao Report or the decision of this Court, we feel that the High Court was justified in striking it down for not having taken into account all t he factors relating to a proper appreciation of the concept of mineral developmentIt must also be noted that in its order dated August 17, 1995, the Central Government had, in exercise of powers conferred on it by Rule 59(2) relaxed the requirement of Rule 59(1) to enable the other parties to be granted leases. We are of the view that the High Court had taken the correct step in allowing the prospective applicants to put forth their points of view with reg rd to the renewal of TISCOs lease. As we have already pointed out, these issues involve considerably high stakes, both in terms of commercial valueandthe effect that such a decision will have on the concept of mineral developmentandthe consequent national interest. To that extent, those likely to be affectedandindeed, those who can legitimately have a stake in the proper formulation of such a vital policy, can be heard. No exception can be taken to the High Court treating them as proper partiesanddirecting the Committee to hear themWe, therefore, hold that both the High Courtandthe Committee were justified in hearing the prospective applicants while considering the issue of renewal of TISCOs leaseFor the foregoing reason, the Committee was the view that the concept of mineral development" under Section 8(3) of the Act requires the assessment of the captive mining requi rement of different industries as also the application of the principle of equitable distribution of mining leasesOn the issue of the application of the principle of equitable distribution, we are of the view that the Committee had, after having taken note of the prevailing situationandthe problems faced by needy manufacturers, taken the correct view in recommending its implementation.We are, therefore, of the view that the Committee had correctly interpreted the relevant material available for appreciating the concept of "mineral development"andadopting the stance that it encompassed the concept of captive mining as well as the principle of equitable distributionOn the issue of the application of the principle of equitable distribution, we are of the view that the Committee had, after having taken note of the prevailing situationandthe problems faced by needy manufacturers, taken the correct view in recommending its implementation.We are, therefore, of the view that the Committee had correctly interpreted the relevant material available for appreciating the concept of "mineral development"andadopting the stance that it encompassed the concept of captive mining as well as the principle of equitable distributionThe decision of the Committeeandthe consequent order of the Central Government have been assailed by the learned counsel for TISCO on a number or tech nical grounds. Many of these have already been dealt with by the Committee. At this juncture, we think it fit to make a few observations about our general approach to the entire case. This is a case of the type where legal issues a re intertwined with those involving determination of policyandplethora of technical issues. In such a situation, courts of law have to be very waryandmust exercise their jurisdiction with circumspection for they must not transgress into the realm of policy making, unless the policy is inconsistent with the constitutionandthe laws. In the present matter, in its impugned judgment, the High Court had directed the Central to set up a committee to analyses the entire gamut of issues thrown up by the present controversy. The Central Government had consequently constituted a committee comprising high level functionaries drawn from various Governmental/ institutional agencies who were equipped to deal with the en tire range oftechnicalandm consideration involved. This Committee, in reaching its decision, consulted a number of policy documentsandapproached the issue from a holistic perspective. We have sought to give our opinion on the legal issues that arises for out consideration. From the scheme of the Act it is clear that the Central Government is vested with discretion to determine the policy regarding the grant or renewal of leases. On matters affecting policyandthose that requiretechnicalexpertise, we have shown deference toandfollowed the recommendations of, the Committee which is more qualified to address these issues.We are, therefore, of the view that the Central Government was justified in issuing its order dated August 17, 1995For the foregoing reasons, we are of the view that the High Courtandthe Committee were justified in the view they took. Consequently the appeals filed by TISCOdismissed. IDCOL has filed the appeals on much the same grounds as TISCO while additionally claiming that the Committee should have heard its claim too while hearing the other parties.
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Ashok Organic Industries Limited Vs. Asset Reconstruction Company (India) Limited (Arcil) & Another | stage these possibilities would be the spectre of two parallel schemes, potentially in complete conflict with each other, one by the BIFR and the other the revived High Court scheme. No provision has been pointed out, much less under Section 22 (3), which can resolve this conflict -- Section 22(3), therefore, when it uses the term "other instruments in force" could not, in its correct context, be construed as including an order under Section 391-394 of the Companies Act within the meaning of that term. The ordinary meaning of the term instrument is "a formal legal document" [Shorter Oxford English Dictionary, 5th Edition, Vol. I. For the term "instrument" used in Section 17 of the Registration Act, 1908 a Full Bench Mt. Kalawati v. Sri Krishna in AIR 1944 Oudh 49 held that the term "instrument" as used in Section 17 -"cannot be held to include an order of the Court or any proceedings held in a Court" On the other hand in Mt. Savitribai v. A. Radhakrishan Sheocharan AIR 1948 Nagpur 49 the Division Bench held that the term "instrument" in Section 7 was wide enough to cover a decree. What is important, however, is the fact that the Division Bench in AIR 1948 Nagpur 49, came to this conclusion in the context of the broad structure and language of Section 17 i.e. because Section 17(2) (v) expressly excluded any decree or order of a Court from the provisions of Sub-section (1)(b)(c). The Court therefore, held that the word "instrument" as used in sub-section 1(b)(c) was otherwise wide enough to cover decrees. That conclusion at the highest can be reiterated in the context of the expression used in the Rehabilitation Act. The term "instrument" in a statute has necessarily to be understood and interpreted in the absence of any express definition having regard to the context in which the term is used and the object which the Legislature had in mind. See Purshottom H. Judye v. V B. Potdar AIR 1966 SC 856 , Bhagwandas Panchal v. Royal Western India Turf Club Ltd. (1969) 72 Bombay Law Reporter 764. Clearly the context in which the term "instrument" in Section 22(3) is used, given the object of the SICA 1985, cannot include orders made by High Court under Section 391-394 of the Companies Act. Section 32 of the SICA 1985 uses a different and distinct term viz. "other instruments having effect by virtue of any law other than this Act" The latter term could include a scheme under Section 391-394 which has effect by virtue of the provisions of Sections 391-394. In contrast the different expression used under Section 22(3) viz. "instruments in force" clearly cannot extend to such sanctioned orders and schemes; In State of Uttar Pradesh v. Ramkrishan Burman AIR 1971 SC 87 the Supreme Court held that a decree in invitum was not an instrument but that "A consent decree in certain case may be regarded as an instrument securing money or other property, where the decree proceeds upon a contract which had that effect, but that is only because a consent decree is a record of the contract between the parties to which is super added the seal of the Court." A scheme under Sections 391-394, though passed on the basis of the voluntary act of the application to the Court for sanction of the scheme, nevertheless remains a scheme having effect by virtue of the statutory operation of Sections 391-394 and it has statutory force by reason of those provisions. It does not remain a mere agreement. [M/s. J.K. (Bombay) Private Ltd. v. New Kaiser-i-Hind AIR 1970 SC 1041 General Radio and Appliances Co. Ltd. v. M.A. Khader (1 86) 60 Company Cases 1013 [Hindustan Lever (2000) 9 SCC 438. Consequently the term "instrument" in Section 22 (3) cannot be extended to cover a scheme sanctioned by the High Court under Sections 391-394. The aforesaid is also made clear by the fact that whereas Section 22(4) refers to "any decree or order of a Court "..... being overridden by a declaration made under Section 22(3), Section 22(3) itself does not. If the term instrument in Section 22(3) included such decrees or orders, then they would be suspended by virtue of the declaration under Section 22(3) itself and there would be no need for the overriding provision in Section 22(4) mentioning "any decree or order of a Court..." because that decree/order would have itself already been suspended under Section 22(3). This would also support the contention raised by the company that a Scheme framed before the Company went to B.I.F.R., unless there is a power to suspend would continue to operate. Mr. Khambata does not dispute this either. This interpretation is also in consonance with the principles of comity. It is not contemplated that the BIFR can under Section 22(3) sit in appeal over or review the merits or demerits of a scheme already sanctioned by the High Court. Section 22(3) is a provision for facilitation and implementation of schemes sanctioned by the BIFR or which are under preparation by the BIFR. It cannot be construed to permit the sanctioning of a scheme by the High Court which could potentially co-operate with and pre-empt the BIFR scheme. 18. Considering the above we have to hold that once the Industrial Company makes a reference under Section 15 of the SICA, the Company Court would have no jurisdiction for sanctioning the scheme of arrangement of compromise with its creditors and shareholders and neither will it have jurisdiction to take cognisance of such an application during the pendency of the reference.19. In the light of the above we over-rule the judgments in National Organic Chemical Industries Limited and Ors. vs. N.O.C.I.L. Employees Union 2005 (126) Companies Cases 922, Sharp Industries Limited, (2006) 131 Company Cases, 535 (Bom.) and in Pharmaceutical Products of India Ltd. in re (2006) 747 131 Company Cases 747. We approve the view taken by the referral Judge in the light of what we have discussed. | 0[ds]In our opinion after the judgment of the Supreme Court in NGEF Limited it will be clear that to the extent where the net worth of the company has become negative the company by operation of law has to move under the SICA by virtue of Section 15 of the SICA. Once it so moves and the reference is registered it is BIFR which alone will have and continue to exercise jurisdiction to the exclusion of the Company Court in respect of the matters for preparation and sanction of a scheme as set out under Section 18 as also appointment of an agency under Section 16 of the Act.We are, therefore, clearly of the opinion that the ratio of the judgment in NGEF Limited (supra) lays down a proposition that in those matters which ordinarily would be covered by Sections 391 to 394 of the Companies Act once the Company becomes sick and is before B.I.F.R. it is the provisions of SICA which alone would be applicable and to that extent the provisions of the Companies Act being inconsistent would standour opinion what the learned Judge was considering and what has been referred for our consideration is the issue, as to when a company is before B.I.F.R. what scheme can be framed. The learned single Judge was considering the issue in the context ofBenches of this Court having taken a view that the provisions of SICA and the Sections 391 to 394 of the Companies Act are not inconsistent with each other. As we have noted earlier in National Organic Chemicals Limited (supra) which was the earliest judgment and which was subsequently followed by anotherBench the learned Judge has himself noted that the provisions of SICA operate only in those cases where the net worth of the company has become negative whereas the provisions of Sections 391 to 394 would be applicable to all other classes of cases. For the purpose of rehabilitation of "Sick" company all measures necessary can be taken. It is, therefore, not possible to countenance the argument advanced on behalf of the intervenor. Atleast we have no hesitation in understanding the issue and answering it as referred to us. As noted by the learned single Judge in so far as the Company Court is concerned, a scheme of arrangement requires the sanction of a percentage of creditors and shareholders. In so far as the scheme to be framed under BIFR even the objections by a sole financial institution is sufficient for BIFR to reject the scheme. There is, therefore, inconsistency between the provisions of SICA and the Companies Act to that extent. What we are called upon to answer is the question referred for our consideration and the question as referred can bethe matter of interpretation and construction of statute on behalf of Dena Bank their learned Counsel had also sought to apply the test of repugnancy under Article 254. It was submitted on behalf of the company that the test of repugnancy considering the language of Article 254 would only apply when there is a conflict between the Central and State legislation in respect of a law made pursuant to the field of legislation in Part III of the VIIth Schedule.Considering the above, SICA 1985 can be said to be a complete Code intended to be exhaustive in all matters concerning sick industrial companies (whether potentially viable orand the provisions thereof and the objects and reasons thereof clearly indicates the legislative intent that SICA 1985 covers the whole field as regards sick industrial companies. The correct test then to be applied is not whether it is open to or possible for a sick industrial company to present a Scheme under Section 391 even whilst its reference is registered with BIFR. The correct question is whether since the SICA 1985 is a complete and exhaustive Code, an inconsistency is deemed to arise and whether such inconsistency may be resolved by applying the well settled principle that the special and later Act prevails over the general and prior Act.Once SICA 1985 is held to be a complete code, the intent of Parliament is that the subject matter i.e. Sick Industrial company, is covered in all aspects by the provisions of SICA 1985 and by these provisions alone. If the provisions of SICA 1985 do not cover any particular detail or aspect pertaining to schemes of Sick Industrial Companies, it must be concluded that this is because Parliament did not intend such a provision to be available in respect of Sick Industrial Companies. Hence there is no question of adopting an approach of dissection or a microscopic examination of each provision of the SICA 1985 to determine whether any particular types of scheme were available under Sectionbut not under the SICA 1985. The test is do the two Acts substantially provide for the same subject matter. In our opinion the answer is in the affirmative. It is therefore not permissible to have recourse to any provisions other than SICA 1985 to supply any mechanism for sanctioning a scheme impermissible under the SICA 1985 (or indeed even to facilitate a scheme under the SICA 1985) for this would defeat Parliaments intention that the SICA Act alone would completely and exhaustively cover all aspects relating to Sick Industrial Companies including schemes in respect thereof. The Scheme as framed does in fact provide for several matters other than a mere compromise /arrangement by reduction in creditors claims. Hence the submission advanced on behalf of ARCIL that schemes which are simpliciter for reduction of the Companys debts were not covered by the provisions of the SICA 1985, is academic and cannot arise in the present case.Considering the above we have to hold that once the Industrial Company makes a reference under Section 15 of the SICA, the Company Court would have no jurisdiction for sanctioning the scheme of arrangement of compromise with its creditors and shareholders and neither will it have jurisdiction to take cognisance of such an application during the pendency of the reference.19. In the light of the above wethe judgments in National Organic Chemical Industries Limited and Ors. vs. N.O.C.I.L. Employees Union 2005 (126) Companies Cases 922, Sharp Industries Limited, (2006) 131 Company Cases, 535 (Bom.) and in Pharmaceutical Products of India Ltd. in re (2006) 747 131 Company Cases 747. We approve the view taken by the referral Judge in the light of what we have discussed. | 0 | 12,587 | 1,138 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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stage these possibilities would be the spectre of two parallel schemes, potentially in complete conflict with each other, one by the BIFR and the other the revived High Court scheme. No provision has been pointed out, much less under Section 22 (3), which can resolve this conflict -- Section 22(3), therefore, when it uses the term "other instruments in force" could not, in its correct context, be construed as including an order under Section 391-394 of the Companies Act within the meaning of that term. The ordinary meaning of the term instrument is "a formal legal document" [Shorter Oxford English Dictionary, 5th Edition, Vol. I. For the term "instrument" used in Section 17 of the Registration Act, 1908 a Full Bench Mt. Kalawati v. Sri Krishna in AIR 1944 Oudh 49 held that the term "instrument" as used in Section 17 -"cannot be held to include an order of the Court or any proceedings held in a Court" On the other hand in Mt. Savitribai v. A. Radhakrishan Sheocharan AIR 1948 Nagpur 49 the Division Bench held that the term "instrument" in Section 7 was wide enough to cover a decree. What is important, however, is the fact that the Division Bench in AIR 1948 Nagpur 49, came to this conclusion in the context of the broad structure and language of Section 17 i.e. because Section 17(2) (v) expressly excluded any decree or order of a Court from the provisions of Sub-section (1)(b)(c). The Court therefore, held that the word "instrument" as used in sub-section 1(b)(c) was otherwise wide enough to cover decrees. That conclusion at the highest can be reiterated in the context of the expression used in the Rehabilitation Act. The term "instrument" in a statute has necessarily to be understood and interpreted in the absence of any express definition having regard to the context in which the term is used and the object which the Legislature had in mind. See Purshottom H. Judye v. V B. Potdar AIR 1966 SC 856 , Bhagwandas Panchal v. Royal Western India Turf Club Ltd. (1969) 72 Bombay Law Reporter 764. Clearly the context in which the term "instrument" in Section 22(3) is used, given the object of the SICA 1985, cannot include orders made by High Court under Section 391-394 of the Companies Act. Section 32 of the SICA 1985 uses a different and distinct term viz. "other instruments having effect by virtue of any law other than this Act" The latter term could include a scheme under Section 391-394 which has effect by virtue of the provisions of Sections 391-394. In contrast the different expression used under Section 22(3) viz. "instruments in force" clearly cannot extend to such sanctioned orders and schemes; In State of Uttar Pradesh v. Ramkrishan Burman AIR 1971 SC 87 the Supreme Court held that a decree in invitum was not an instrument but that "A consent decree in certain case may be regarded as an instrument securing money or other property, where the decree proceeds upon a contract which had that effect, but that is only because a consent decree is a record of the contract between the parties to which is super added the seal of the Court." A scheme under Sections 391-394, though passed on the basis of the voluntary act of the application to the Court for sanction of the scheme, nevertheless remains a scheme having effect by virtue of the statutory operation of Sections 391-394 and it has statutory force by reason of those provisions. It does not remain a mere agreement. [M/s. J.K. (Bombay) Private Ltd. v. New Kaiser-i-Hind AIR 1970 SC 1041 General Radio and Appliances Co. Ltd. v. M.A. Khader (1 86) 60 Company Cases 1013 [Hindustan Lever (2000) 9 SCC 438. Consequently the term "instrument" in Section 22 (3) cannot be extended to cover a scheme sanctioned by the High Court under Sections 391-394. The aforesaid is also made clear by the fact that whereas Section 22(4) refers to "any decree or order of a Court "..... being overridden by a declaration made under Section 22(3), Section 22(3) itself does not. If the term instrument in Section 22(3) included such decrees or orders, then they would be suspended by virtue of the declaration under Section 22(3) itself and there would be no need for the overriding provision in Section 22(4) mentioning "any decree or order of a Court..." because that decree/order would have itself already been suspended under Section 22(3). This would also support the contention raised by the company that a Scheme framed before the Company went to B.I.F.R., unless there is a power to suspend would continue to operate. Mr. Khambata does not dispute this either. This interpretation is also in consonance with the principles of comity. It is not contemplated that the BIFR can under Section 22(3) sit in appeal over or review the merits or demerits of a scheme already sanctioned by the High Court. Section 22(3) is a provision for facilitation and implementation of schemes sanctioned by the BIFR or which are under preparation by the BIFR. It cannot be construed to permit the sanctioning of a scheme by the High Court which could potentially co-operate with and pre-empt the BIFR scheme. 18. Considering the above we have to hold that once the Industrial Company makes a reference under Section 15 of the SICA, the Company Court would have no jurisdiction for sanctioning the scheme of arrangement of compromise with its creditors and shareholders and neither will it have jurisdiction to take cognisance of such an application during the pendency of the reference.19. In the light of the above we over-rule the judgments in National Organic Chemical Industries Limited and Ors. vs. N.O.C.I.L. Employees Union 2005 (126) Companies Cases 922, Sharp Industries Limited, (2006) 131 Company Cases, 535 (Bom.) and in Pharmaceutical Products of India Ltd. in re (2006) 747 131 Company Cases 747. We approve the view taken by the referral Judge in the light of what we have discussed.
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exercise jurisdiction to the exclusion of the Company Court in respect of the matters for preparation and sanction of a scheme as set out under Section 18 as also appointment of an agency under Section 16 of the Act.We are, therefore, clearly of the opinion that the ratio of the judgment in NGEF Limited (supra) lays down a proposition that in those matters which ordinarily would be covered by Sections 391 to 394 of the Companies Act once the Company becomes sick and is before B.I.F.R. it is the provisions of SICA which alone would be applicable and to that extent the provisions of the Companies Act being inconsistent would standour opinion what the learned Judge was considering and what has been referred for our consideration is the issue, as to when a company is before B.I.F.R. what scheme can be framed. The learned single Judge was considering the issue in the context ofBenches of this Court having taken a view that the provisions of SICA and the Sections 391 to 394 of the Companies Act are not inconsistent with each other. As we have noted earlier in National Organic Chemicals Limited (supra) which was the earliest judgment and which was subsequently followed by anotherBench the learned Judge has himself noted that the provisions of SICA operate only in those cases where the net worth of the company has become negative whereas the provisions of Sections 391 to 394 would be applicable to all other classes of cases. For the purpose of rehabilitation of "Sick" company all measures necessary can be taken. It is, therefore, not possible to countenance the argument advanced on behalf of the intervenor. Atleast we have no hesitation in understanding the issue and answering it as referred to us. As noted by the learned single Judge in so far as the Company Court is concerned, a scheme of arrangement requires the sanction of a percentage of creditors and shareholders. In so far as the scheme to be framed under BIFR even the objections by a sole financial institution is sufficient for BIFR to reject the scheme. There is, therefore, inconsistency between the provisions of SICA and the Companies Act to that extent. What we are called upon to answer is the question referred for our consideration and the question as referred can bethe matter of interpretation and construction of statute on behalf of Dena Bank their learned Counsel had also sought to apply the test of repugnancy under Article 254. It was submitted on behalf of the company that the test of repugnancy considering the language of Article 254 would only apply when there is a conflict between the Central and State legislation in respect of a law made pursuant to the field of legislation in Part III of the VIIth Schedule.Considering the above, SICA 1985 can be said to be a complete Code intended to be exhaustive in all matters concerning sick industrial companies (whether potentially viable orand the provisions thereof and the objects and reasons thereof clearly indicates the legislative intent that SICA 1985 covers the whole field as regards sick industrial companies. The correct test then to be applied is not whether it is open to or possible for a sick industrial company to present a Scheme under Section 391 even whilst its reference is registered with BIFR. The correct question is whether since the SICA 1985 is a complete and exhaustive Code, an inconsistency is deemed to arise and whether such inconsistency may be resolved by applying the well settled principle that the special and later Act prevails over the general and prior Act.Once SICA 1985 is held to be a complete code, the intent of Parliament is that the subject matter i.e. Sick Industrial company, is covered in all aspects by the provisions of SICA 1985 and by these provisions alone. If the provisions of SICA 1985 do not cover any particular detail or aspect pertaining to schemes of Sick Industrial Companies, it must be concluded that this is because Parliament did not intend such a provision to be available in respect of Sick Industrial Companies. Hence there is no question of adopting an approach of dissection or a microscopic examination of each provision of the SICA 1985 to determine whether any particular types of scheme were available under Sectionbut not under the SICA 1985. The test is do the two Acts substantially provide for the same subject matter. In our opinion the answer is in the affirmative. It is therefore not permissible to have recourse to any provisions other than SICA 1985 to supply any mechanism for sanctioning a scheme impermissible under the SICA 1985 (or indeed even to facilitate a scheme under the SICA 1985) for this would defeat Parliaments intention that the SICA Act alone would completely and exhaustively cover all aspects relating to Sick Industrial Companies including schemes in respect thereof. The Scheme as framed does in fact provide for several matters other than a mere compromise /arrangement by reduction in creditors claims. Hence the submission advanced on behalf of ARCIL that schemes which are simpliciter for reduction of the Companys debts were not covered by the provisions of the SICA 1985, is academic and cannot arise in the present case.Considering the above we have to hold that once the Industrial Company makes a reference under Section 15 of the SICA, the Company Court would have no jurisdiction for sanctioning the scheme of arrangement of compromise with its creditors and shareholders and neither will it have jurisdiction to take cognisance of such an application during the pendency of the reference.19. In the light of the above wethe judgments in National Organic Chemical Industries Limited and Ors. vs. N.O.C.I.L. Employees Union 2005 (126) Companies Cases 922, Sharp Industries Limited, (2006) 131 Company Cases, 535 (Bom.) and in Pharmaceutical Products of India Ltd. in re (2006) 747 131 Company Cases 747. We approve the view taken by the referral Judge in the light of what we have discussed.
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Commissioner of Income Tax, Calcutta Vs. Braithwaite and Company Limited | On July 31, 1970 Rs. 12 lakhs 5. On July 31, 1971 Rs. 16 lakhs. 4. The respondent-company included proportionate amount of the Term Loan of Rs. 50, 00, 000 in its capital base and claimed statutory percentage of the said amount as deduction in the calculation of its chargeable profits as sessable for the assessment year 1965- 66. The Income-tax Officer rejected the claim of the respondent-company on the ground that the repayment of the Term Loan was not "during a period of not less than seven years". On appeal the Appellate Assistant Commissioner reversed the findings of the Income-tax Officer and held that the provisions of Rule 1(v) of the Second Schedule to the Act were satisfied and as such the respondent-company was entitled to include the Term Loan for the purposes of computing the chargeable profits. The Department preferred further appeal to the Income-tax Appellate Tribunal. The Tribunal held that only the last instalment of Rs. 16, 00, 000 was payable during a period of not less than seven years" and as such satisfied the requirements of Rule 1(v) but so far as the other four instalments aggregating to Rs. 34, 00, 000 were concerned the Tribunal allowed the appeal of the Department and rejected the claim of the respondent-company. At the instance of the respondent-company the Appellate Tribunal referred the following question for adjudication: "Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that only Rs. 16, 00, 000 out of the loan of Rs. 50, 00, 000 taken from the Bank qualified for inclusion in the capital base under rule 1(v) of the Second Schedule to the Companies (Profits) Surtax Act, 1964?" The High Court answered the question in the negative and in favour of the respondent-company. This appeal by special leave is by the Income tax Department against the judgment of the High Court. 5. Learned counsel for the appellant contended that no part of the Term Loam of Rs. 50, 00, 000 qualified for inclusion in the capital base because the provisions of Rule 1(v) of the Second Schedule to the Act were not satisfied. According to him under the Term Loan-Agreement dated August 1, 1964 the last instalment was to be paid on July 31, 1971 and as such the period of repayment was less than seven years. He further contended that in the context the expression "during a period of not less than seven y ears", means a period or more than seven years. The learned counsel for the respondent, on the other hand, argued that the Term Loan was payable within the period of seven years. According to him the period of seven years is obviously a period which is "not less than seven years". 6. We are of the view that on the plain reading of the proviso to Rule 1(v), Second Schedule to the Act it is clear that in order to claim benefit of the said provision the borrowed money has to be repaid during the period of more than seven years. The only interpretation which can be given to the expression "during a period of not less than seven years" is that the said period should go beyond seven years. The reasoning is simple. The period of seven years would not complete till the last minute or even the last second of the said period are counted. In other words till the last minute of the seven years period is completed the period remains less than seven years. In the present ca se the agreement was entered on August 1, 1964. The last instalment was to be paid on July 31, 1971. The seven years were to complete at 12 a.m. (between the night of July 31, 1971 and August 1, 1971). Even if the loan was paid back at 11.5 9 p.m. on July 31, 1971 the period would be less than seven years by one minute. It is, therefore, obvious that the period of "not less than seven years" can only mean till after the completion of seven years. We, therefore, hold that the repayment of borrowed amount during the period of seven years does not mean repayment "during a period of not less than seven years". To claim the benefit under Rule 1(v) of the Second Schedule to the Act the repayment of the borrowed money must be during a period which is more than seven years.We find support in the view taken by us in the following cases. 7. In Ramanasari v. Muthusami Naik, 30 ILR(Madras) 248, Section 1.8 of the Madras Rent Recovery Act VIII of 1865 required that, in fixing the day of sale, not less than seven days must be allowed from the time of-the public notice and not less than 30 days from the date of distraint. The sale was held on the 13th February, but the notice was published on 6th February. It was held t hat not less than means the same as clear and seven whole days must elapse between the day of the notice and the day fixed for sale. In re 77 The Railway Sleepers Supply Company LJ 1885 (54) Ch 720, the expression not less than given numb er of days means clear days. It was held that the expression not less indicates a minimum. 8. In the present case the whole of the Term Loan was payable within the period of seven years and as such the loan of Rs. 50, 00, 000 taken by the respondent -company from National Grindlays Bank was not qualified for inclusion in the capital base under Rule 1(v) of the Second Schedule to the Act The Tribunal in part and the High Court were not justified in deciding the issue in favour of the respondent- company. Since the order of the Tribunal, granting relief to the respondent-company to the extent of Rs. 16, 00, 000 has become final, no interference is called for to that extent. 9. | 1[ds]In the present case the whole of the Term Loan was payable withinthe period of sevenyearsand as such the loan of Rs. 50,00, 000taken by the respondent -company from National Grindlays Bank was not qualified for inclusion in the capital base under Rule 1(v) of the Second Schedule to the ActTheTribunal in part and the High Court were not justified in deciding the issue in favour of the respondent- company. Since the order of the Tribunal, granting relief to the respondent-company to the extent of Rs. 16,00, 000has become final, no interference is called for to that extent | 1 | 1,647 | 112 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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On July 31, 1970 Rs. 12 lakhs 5. On July 31, 1971 Rs. 16 lakhs. 4. The respondent-company included proportionate amount of the Term Loan of Rs. 50, 00, 000 in its capital base and claimed statutory percentage of the said amount as deduction in the calculation of its chargeable profits as sessable for the assessment year 1965- 66. The Income-tax Officer rejected the claim of the respondent-company on the ground that the repayment of the Term Loan was not "during a period of not less than seven years". On appeal the Appellate Assistant Commissioner reversed the findings of the Income-tax Officer and held that the provisions of Rule 1(v) of the Second Schedule to the Act were satisfied and as such the respondent-company was entitled to include the Term Loan for the purposes of computing the chargeable profits. The Department preferred further appeal to the Income-tax Appellate Tribunal. The Tribunal held that only the last instalment of Rs. 16, 00, 000 was payable during a period of not less than seven years" and as such satisfied the requirements of Rule 1(v) but so far as the other four instalments aggregating to Rs. 34, 00, 000 were concerned the Tribunal allowed the appeal of the Department and rejected the claim of the respondent-company. At the instance of the respondent-company the Appellate Tribunal referred the following question for adjudication: "Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that only Rs. 16, 00, 000 out of the loan of Rs. 50, 00, 000 taken from the Bank qualified for inclusion in the capital base under rule 1(v) of the Second Schedule to the Companies (Profits) Surtax Act, 1964?" The High Court answered the question in the negative and in favour of the respondent-company. This appeal by special leave is by the Income tax Department against the judgment of the High Court. 5. Learned counsel for the appellant contended that no part of the Term Loam of Rs. 50, 00, 000 qualified for inclusion in the capital base because the provisions of Rule 1(v) of the Second Schedule to the Act were not satisfied. According to him under the Term Loan-Agreement dated August 1, 1964 the last instalment was to be paid on July 31, 1971 and as such the period of repayment was less than seven years. He further contended that in the context the expression "during a period of not less than seven y ears", means a period or more than seven years. The learned counsel for the respondent, on the other hand, argued that the Term Loan was payable within the period of seven years. According to him the period of seven years is obviously a period which is "not less than seven years". 6. We are of the view that on the plain reading of the proviso to Rule 1(v), Second Schedule to the Act it is clear that in order to claim benefit of the said provision the borrowed money has to be repaid during the period of more than seven years. The only interpretation which can be given to the expression "during a period of not less than seven years" is that the said period should go beyond seven years. The reasoning is simple. The period of seven years would not complete till the last minute or even the last second of the said period are counted. In other words till the last minute of the seven years period is completed the period remains less than seven years. In the present ca se the agreement was entered on August 1, 1964. The last instalment was to be paid on July 31, 1971. The seven years were to complete at 12 a.m. (between the night of July 31, 1971 and August 1, 1971). Even if the loan was paid back at 11.5 9 p.m. on July 31, 1971 the period would be less than seven years by one minute. It is, therefore, obvious that the period of "not less than seven years" can only mean till after the completion of seven years. We, therefore, hold that the repayment of borrowed amount during the period of seven years does not mean repayment "during a period of not less than seven years". To claim the benefit under Rule 1(v) of the Second Schedule to the Act the repayment of the borrowed money must be during a period which is more than seven years.We find support in the view taken by us in the following cases. 7. In Ramanasari v. Muthusami Naik, 30 ILR(Madras) 248, Section 1.8 of the Madras Rent Recovery Act VIII of 1865 required that, in fixing the day of sale, not less than seven days must be allowed from the time of-the public notice and not less than 30 days from the date of distraint. The sale was held on the 13th February, but the notice was published on 6th February. It was held t hat not less than means the same as clear and seven whole days must elapse between the day of the notice and the day fixed for sale. In re 77 The Railway Sleepers Supply Company LJ 1885 (54) Ch 720, the expression not less than given numb er of days means clear days. It was held that the expression not less indicates a minimum. 8. In the present case the whole of the Term Loan was payable within the period of seven years and as such the loan of Rs. 50, 00, 000 taken by the respondent -company from National Grindlays Bank was not qualified for inclusion in the capital base under Rule 1(v) of the Second Schedule to the Act The Tribunal in part and the High Court were not justified in deciding the issue in favour of the respondent- company. Since the order of the Tribunal, granting relief to the respondent-company to the extent of Rs. 16, 00, 000 has become final, no interference is called for to that extent. 9.
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In the present case the whole of the Term Loan was payable withinthe period of sevenyearsand as such the loan of Rs. 50,00, 000taken by the respondent -company from National Grindlays Bank was not qualified for inclusion in the capital base under Rule 1(v) of the Second Schedule to the ActTheTribunal in part and the High Court were not justified in deciding the issue in favour of the respondent- company. Since the order of the Tribunal, granting relief to the respondent-company to the extent of Rs. 16,00, 000has become final, no interference is called for to that extent
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BHAWNA BAI Vs. GHANSHYAM | comes at the initial stage the duty of the court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If ‘the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing?, as enjoined by Section 227. If, on the other hand, ‘the Judge is of opinion that there is ground for presuming that the accused has committed an offence which — … (b) is exclusively triable by the court, he shall frame in writing a charge against the accused?, as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.?? 15. After referring to Amit Kapoor, in Dinesh Tiwari v. State of Uttar Pradesh and another (2014) 13 SCC 137 , the Supreme Court held that for framing charge under Section 228 Crl.P.C., the judge is not required to record detailed reasons as to why such charge is framed. On perusal of record and hearing of parties, if the judge is of the opinion that there is sufficient ground for presuming that the accused has committed the offence triable by the Court of Session, he shall frame the charge against the accused for such offence. 16. As discussed above, in the present case, upon hearing the parties and considering the allegations in the charge sheet, the learned Second Additional Sessions Judge was of the opinion that there were sufficient grounds for presuming that the accused has committed the offence punishable under Section 302 IPC read with Section 34 IPC. The order dated 12.12.2018 framing the charges is not a detailed order. For framing the charges under Section 228 Crl.P.C., the judge is not required to record detailed reasons. As pointed out earlier, at the stage of framing the charge, the court is not required to hold an elaborate enquiry; only prima facie case is to be seen. As held in Knati Bhadra Shah and another v. State of West Bengal (2000) 1 SCC 722 , while exercising power under Section 228 Crl.P.C., the judge is not required record his reasons for framing the charges against the accused. Upon hearing the parties and based upon the allegations and taking note of the allegations in the charge sheet, the learned Second Additional Sessions Judge was satisfied that there is sufficient ground for proceeding against the accused and framed the charges against the accused- respondent Nos.1 and 2. While so, the High Court was not right in interfering with the order of the trial court framing the charges against the accused-respondent Nos.1 and 2 under Section 302 IPC read with Section 34 IPC and the High Court, in our view, erred in quashing the charges framed against the accused. The impugned order cannot therefore be sustained and is liable to be set aside. | 1[ds]12. Though the circumstances alleged in the charge sheet are to be established during the trial by adducing the evidence, the allegations in the charge sheet show a prima facie case against the accused-respondent Nos.1 and 2. The circumstances alleged by the prosecution indicate that there are sufficient grounds for proceedings against the accused16. As discussed above, in the present case, upon hearing the parties and considering the allegations in the charge sheet, the learned Second Additional Sessions Judge was of the opinion that there were sufficient grounds for presuming that the accused has committed the offence punishable under Section 302 IPC read with Section 34 IPC. The order dated 12.12.2018 framing the charges is not a detailed order. For framing the charges under Section 228 Crl.P.C., the judge is not required to record detailed reasons. As pointed out earlier, at the stage of framing the charge, the court is not required to hold an elaborate enquiry; only prima facie case is to be seen. As held in Knati Bhadra Shah and another v. State of West Bengal (2000) 1 SCC 722 , while exercising power under Section 228 Crl.P.C., the judge is not required record his reasons for framing the charges against the accused. Upon hearing the parties and based upon the allegations and taking note of the allegations in the charge sheet, the learned Second Additional Sessions Judge was satisfied that there is sufficient ground for proceeding against the accused and framed the charges against the accused- respondent Nos.1 and 2. While so, the High Court was not right in interfering with the order of the trial court framing the charges against the accused-respondent Nos.1 and 2 under Section 302 IPC read with Section 34 IPC and the High Court, in our view, erred in quashing the charges framed against the accused. The impugned order cannot therefore be sustained and is liable to be set aside. | 1 | 3,134 | 349 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
comes at the initial stage the duty of the court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If ‘the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing?, as enjoined by Section 227. If, on the other hand, ‘the Judge is of opinion that there is ground for presuming that the accused has committed an offence which — … (b) is exclusively triable by the court, he shall frame in writing a charge against the accused?, as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.?? 15. After referring to Amit Kapoor, in Dinesh Tiwari v. State of Uttar Pradesh and another (2014) 13 SCC 137 , the Supreme Court held that for framing charge under Section 228 Crl.P.C., the judge is not required to record detailed reasons as to why such charge is framed. On perusal of record and hearing of parties, if the judge is of the opinion that there is sufficient ground for presuming that the accused has committed the offence triable by the Court of Session, he shall frame the charge against the accused for such offence. 16. As discussed above, in the present case, upon hearing the parties and considering the allegations in the charge sheet, the learned Second Additional Sessions Judge was of the opinion that there were sufficient grounds for presuming that the accused has committed the offence punishable under Section 302 IPC read with Section 34 IPC. The order dated 12.12.2018 framing the charges is not a detailed order. For framing the charges under Section 228 Crl.P.C., the judge is not required to record detailed reasons. As pointed out earlier, at the stage of framing the charge, the court is not required to hold an elaborate enquiry; only prima facie case is to be seen. As held in Knati Bhadra Shah and another v. State of West Bengal (2000) 1 SCC 722 , while exercising power under Section 228 Crl.P.C., the judge is not required record his reasons for framing the charges against the accused. Upon hearing the parties and based upon the allegations and taking note of the allegations in the charge sheet, the learned Second Additional Sessions Judge was satisfied that there is sufficient ground for proceeding against the accused and framed the charges against the accused- respondent Nos.1 and 2. While so, the High Court was not right in interfering with the order of the trial court framing the charges against the accused-respondent Nos.1 and 2 under Section 302 IPC read with Section 34 IPC and the High Court, in our view, erred in quashing the charges framed against the accused. The impugned order cannot therefore be sustained and is liable to be set aside.
### Response:
1
### Explanation:
12. Though the circumstances alleged in the charge sheet are to be established during the trial by adducing the evidence, the allegations in the charge sheet show a prima facie case against the accused-respondent Nos.1 and 2. The circumstances alleged by the prosecution indicate that there are sufficient grounds for proceedings against the accused16. As discussed above, in the present case, upon hearing the parties and considering the allegations in the charge sheet, the learned Second Additional Sessions Judge was of the opinion that there were sufficient grounds for presuming that the accused has committed the offence punishable under Section 302 IPC read with Section 34 IPC. The order dated 12.12.2018 framing the charges is not a detailed order. For framing the charges under Section 228 Crl.P.C., the judge is not required to record detailed reasons. As pointed out earlier, at the stage of framing the charge, the court is not required to hold an elaborate enquiry; only prima facie case is to be seen. As held in Knati Bhadra Shah and another v. State of West Bengal (2000) 1 SCC 722 , while exercising power under Section 228 Crl.P.C., the judge is not required record his reasons for framing the charges against the accused. Upon hearing the parties and based upon the allegations and taking note of the allegations in the charge sheet, the learned Second Additional Sessions Judge was satisfied that there is sufficient ground for proceeding against the accused and framed the charges against the accused- respondent Nos.1 and 2. While so, the High Court was not right in interfering with the order of the trial court framing the charges against the accused-respondent Nos.1 and 2 under Section 302 IPC read with Section 34 IPC and the High Court, in our view, erred in quashing the charges framed against the accused. The impugned order cannot therefore be sustained and is liable to be set aside.
|
Collector of Customs, Bombay Vs. Messrs Bharat Heavy Electricals Limited, New Delhi | 84.04/05 or any other item heading in chapters falling under Section XVI merely because they are parts of such article. Similarly, Note 2 to Section XVI only makes it clear that even parts of machinery may be assessable under the same heading as the main machinery, provided they form an integral part of the machine and are suitable for use more or less or principally with a particular kind of machine or number of machines falling under a particular heading. But since this note is subject to Note 1(l), it does not alter the position that the parts are assessable under Heading No. 92.04. We do not think it necessary to discuss the contents of these notes more elaborately; it is sufficient to say that they do not advance the first contention urged on behalf of the appellants 8. The second contention of the learned counsel runs thus : the concession or exemption from auxiliary duty under Notification No. 41 of 1980 can be claimed only in respect of goods which are partially or wholly exempt by virtue of Notification No. 35 of 1979. The parts in the present case as well the principal article of which they are part are both assessable to basic duty at the same rate. Since the duty payable on the part, even without invoking the notification, is not in excess of the duty payable on the article, the assessee cannot be said to have got a partial or complete exemption of basics duty by virtue of Notification No. 35 of 1979. Consequently, the assessee cannot claim any benefit under Notification No. 41 of 1980. This interpretation no doubt leads to an anomaly in marginal cases. If the rate of duty on the part had been 41 per cent, the assessee would have been entitled to a complete exemption from auxiliary duty. On the other hand, if the rate of duty on the part had only been 39 per cent or 40 per cent, he would have to pay the auxiliary duty because the notification does not apply to it in terms. Counsel, however, submits that such anomalies are inevitable in the case of provisions of this type and that, in taxing matters, it is imperative to concentrate on the language of the statute or the relevant statutory instrument. If the wording clearly imposes a tax or gives a relief, that should be given effect to. If the wording does not justify either the imposition or the relief, it should not be extended merely on the ground that there may be some unintended anomaly as a consequence of the interpretation or that the equities of the situation require a more liberal interpretation 9. There is, however, another way of reading the notifications before us and it is this which appeals to us as the more reasonable one. On this interpretation, relief under Notification No. 41 of 1980 will not depend upon the actual operation or application of Notification No. 35 of 1979 in the case of a particular item of goods. It is intended for a class of goods. The 1979 notification grants an exemption or concession in respect of the basic duty payable on certain classes of goods viz. parts of articles which fall under one of the specified headings and required for certain purposes. The purport and intention of the 1980 notification is to exempt the class of goods falling under the purview of the 1979 notification from auxiliary duty as well. The exemption under the 1980 notification does not depend, in this view, on the practical effect of the application of the 1979 notification in a particular case. Its applicability should not be confined to items of goods in respect of which a reduction in duty is actually enjoyed under one of the notifications included in the schedule to the 1980 notification. There appears to be no logic in saying that the exemption from auxiliary duty in respect of the same part will be available only where the duty chargeable on the part is more than, but becomes equal to, that on the whole article by applying the 1979 notification but not where the duty on the part is the same as that of the whole even otherwise. Equally, it seems absurd to say that when the part suffers a basic duty of 40 per cent and the whole a duty of 40 per cent, there will be a countervailing duty but that there will be no such duty where the basic duty on the part is 41 per cent or more but reduced to 40 per cent because of the 1977 notification. The correct position appears to be that the purpose and purport of the 1979 notification is to ensure that, in respect of the articles listed therein, the part should not suffer a higher duty than the whole. The 1980 notification likewise exempts this category of articles, which enjoy the benefit of the same or less duty on the part than that on the whole, from auxiliary duty 10. We think that this interpretation not only does not do any violence to the language of the notifications but, on the other hand, gives effect to its true intent and purpose. We, therefore, uphold the view taken by the Tribunal somewhat hesitantly, that the assessee was entitled to exemption from auxiliary duty in respect of the goods in question 11. Shri Murthy, at one stage, pointed out that the claims in the present case also related to consignments imported on or after March 1, 1981. He submitted that the Notification No. 41 of 1980 had ceased to be in force on February 28, 1981 and that the exemption from countervailing duty was not available thereafter. Though this was a new point, we were inclined to consider it. But, after some further research into the terms of the various notifications issued on or after March 1, 1981, he conceded that the exemption continued to be available on the same or similar terms. | 0[ds]7. So far as the first point raised by the learned counsel is concerned, we think it proceeds on a misconception. To get the benefit of Notification No. 35 of 1979 it is not necessary that pressure gauge should be assessable under Item84.04/05. All that is needed is that it should be a part of an article falling, inter alia, underHeading No.84.04/05 and that condition is fulfilled here as the pressure gauges, though assessable underHeading No.92.04, are parts of steam engines which fall under84.04/05. There is no controversy before us that the pressure gauges imported by the assessee are parts of steam turbines manufactured by it and that the parts have been imported for the purpose of initial setting up of the steam engine or for its assembly or manufacture. The provision of the first part of Notification No. 35 of 1979, are, therefore, fulfilled. The contents of the note to which our attention has been drawn are not, in our opinion, of any assistance. Note 1(g) is of no assistance at all. Note 1(l) only makes it clear that pressure gauges will be assessable under ItemHeading No.90.24 and cannot be brought under 84.04/05 or any other item heading in chapters falling under Section XVI merely because they are parts of such article. Similarly, Note 2 to Section XVI only makes it clear that even parts of machinery may be assessable under the same heading as the main machinery, provided they form an integral part of the machine and are suitable for use more or less or principally with a particular kind of machine or number of machines falling under a particular heading. But since this note is subject to Note 1(l), it does not alter the position that the parts are assessable under92.04. We do not think it necessary to discuss the contents of these notes more elaborately; it is sufficient to say that they do not advance the first contention urged on behalf of the appellantsThe parts in the present case as well the principal article of which they are part are both assessable to basic duty at the same rate. Since the duty payable on the part, even without invoking the notification, is not in excess of the duty payable on the article, the assessee cannot be said to have got a partial or complete exemption of basics duty by virtue of Notification No. 35 of 1979. Consequently, the assessee cannot claim any benefit under Notification No. 41 of 1980. This interpretation no doubt leads to an anomaly in marginal cases. If the rate of duty on the part had been 41 per cent, the assessee would have been entitled to a complete exemption from auxiliary duty. On the other hand, if the rate of duty on the part had only been 39 per cent or 40 per cent, he would have to pay the auxiliary duty because the notification does not apply to it in terms. Counsel, however, submits that such anomalies are inevitable in the case of provisions of this type and that, in taxing matters, it is imperative to concentrate on the language of the statute or the relevant statutory instrument. If the wording clearly imposes a tax or gives a relief, that should be given effect to. If the wording does not justify either the imposition or the relief, it should not be extended merely on the ground that there may be some unintended anomaly as a consequence of the interpretation or that the equities of the situation require a more liberal interpretation9. There is, however, another way of reading the notifications before us and it is this which appeals to us as the more reasonable one. On this interpretation, relief under Notification No. 41 of 1980 will not depend upon the actual operation or application of Notification No. 35 of 1979 in the case of a particular item of goods. It is intended for a class of goods. The 1979 notification grants an exemption or concession in respect of the basic duty payable on certain classes of goods viz. parts of articles which fall under one of the specified headings and required for certain purposes. The purport and intention of the 1980 notification is to exempt the class of goods falling under the purview of the 1979 notification from auxiliary duty as well. The exemption under the 1980 notification does not depend, in this view, on the practical effect of the application of the 1979 notification in a particular case. Its applicability should not be confined to items of goods in respect of which a reduction in duty is actually enjoyed under one of the notifications included in the schedule to the 1980 notification. There appears to be no logic in saying that the exemption from auxiliary duty in respect of the same part will be available only where the duty chargeable on the part is more than, but becomes equal to, that on the whole article by applying the 1979 notification but not where the duty on the part is the same as that of the whole even otherwise. Equally, it seems absurd to say that when the part suffers a basic duty of 40 per cent and the whole a duty of 40 per cent, there will be a countervailing duty but that there will be no such duty where the basic duty on the part is 41 per cent or more but reduced to 40 per cent because of the 1977 notification. The correct position appears to be that the purpose and purport of the 1979 notification is to ensure that, in respect of the articles listed therein, the part should not suffer a higher duty than the whole. The 1980 notification likewise exempts this category of articles, which enjoy the benefit of the same or less duty on the part than that on the whole, from auxiliary duty10. We think that this interpretation not only does not do any violence to the language of the notifications but, on the other hand, gives effect to its true intent and purpose. We, therefore, uphold the view taken by the Tribunal somewhat hesitantly, that the assessee was entitled to exemption from auxiliary duty in respect of the goods in questionThough this was a new point, we were inclined to consider it. But, after some further research into the terms of the various notifications issued on or after March 1, 1981, he conceded that the exemption continued to be available on the same or similar terms. | 0 | 2,787 | 1,190 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
84.04/05 or any other item heading in chapters falling under Section XVI merely because they are parts of such article. Similarly, Note 2 to Section XVI only makes it clear that even parts of machinery may be assessable under the same heading as the main machinery, provided they form an integral part of the machine and are suitable for use more or less or principally with a particular kind of machine or number of machines falling under a particular heading. But since this note is subject to Note 1(l), it does not alter the position that the parts are assessable under Heading No. 92.04. We do not think it necessary to discuss the contents of these notes more elaborately; it is sufficient to say that they do not advance the first contention urged on behalf of the appellants 8. The second contention of the learned counsel runs thus : the concession or exemption from auxiliary duty under Notification No. 41 of 1980 can be claimed only in respect of goods which are partially or wholly exempt by virtue of Notification No. 35 of 1979. The parts in the present case as well the principal article of which they are part are both assessable to basic duty at the same rate. Since the duty payable on the part, even without invoking the notification, is not in excess of the duty payable on the article, the assessee cannot be said to have got a partial or complete exemption of basics duty by virtue of Notification No. 35 of 1979. Consequently, the assessee cannot claim any benefit under Notification No. 41 of 1980. This interpretation no doubt leads to an anomaly in marginal cases. If the rate of duty on the part had been 41 per cent, the assessee would have been entitled to a complete exemption from auxiliary duty. On the other hand, if the rate of duty on the part had only been 39 per cent or 40 per cent, he would have to pay the auxiliary duty because the notification does not apply to it in terms. Counsel, however, submits that such anomalies are inevitable in the case of provisions of this type and that, in taxing matters, it is imperative to concentrate on the language of the statute or the relevant statutory instrument. If the wording clearly imposes a tax or gives a relief, that should be given effect to. If the wording does not justify either the imposition or the relief, it should not be extended merely on the ground that there may be some unintended anomaly as a consequence of the interpretation or that the equities of the situation require a more liberal interpretation 9. There is, however, another way of reading the notifications before us and it is this which appeals to us as the more reasonable one. On this interpretation, relief under Notification No. 41 of 1980 will not depend upon the actual operation or application of Notification No. 35 of 1979 in the case of a particular item of goods. It is intended for a class of goods. The 1979 notification grants an exemption or concession in respect of the basic duty payable on certain classes of goods viz. parts of articles which fall under one of the specified headings and required for certain purposes. The purport and intention of the 1980 notification is to exempt the class of goods falling under the purview of the 1979 notification from auxiliary duty as well. The exemption under the 1980 notification does not depend, in this view, on the practical effect of the application of the 1979 notification in a particular case. Its applicability should not be confined to items of goods in respect of which a reduction in duty is actually enjoyed under one of the notifications included in the schedule to the 1980 notification. There appears to be no logic in saying that the exemption from auxiliary duty in respect of the same part will be available only where the duty chargeable on the part is more than, but becomes equal to, that on the whole article by applying the 1979 notification but not where the duty on the part is the same as that of the whole even otherwise. Equally, it seems absurd to say that when the part suffers a basic duty of 40 per cent and the whole a duty of 40 per cent, there will be a countervailing duty but that there will be no such duty where the basic duty on the part is 41 per cent or more but reduced to 40 per cent because of the 1977 notification. The correct position appears to be that the purpose and purport of the 1979 notification is to ensure that, in respect of the articles listed therein, the part should not suffer a higher duty than the whole. The 1980 notification likewise exempts this category of articles, which enjoy the benefit of the same or less duty on the part than that on the whole, from auxiliary duty 10. We think that this interpretation not only does not do any violence to the language of the notifications but, on the other hand, gives effect to its true intent and purpose. We, therefore, uphold the view taken by the Tribunal somewhat hesitantly, that the assessee was entitled to exemption from auxiliary duty in respect of the goods in question 11. Shri Murthy, at one stage, pointed out that the claims in the present case also related to consignments imported on or after March 1, 1981. He submitted that the Notification No. 41 of 1980 had ceased to be in force on February 28, 1981 and that the exemption from countervailing duty was not available thereafter. Though this was a new point, we were inclined to consider it. But, after some further research into the terms of the various notifications issued on or after March 1, 1981, he conceded that the exemption continued to be available on the same or similar terms.
### Response:
0
### Explanation:
There is no controversy before us that the pressure gauges imported by the assessee are parts of steam turbines manufactured by it and that the parts have been imported for the purpose of initial setting up of the steam engine or for its assembly or manufacture. The provision of the first part of Notification No. 35 of 1979, are, therefore, fulfilled. The contents of the note to which our attention has been drawn are not, in our opinion, of any assistance. Note 1(g) is of no assistance at all. Note 1(l) only makes it clear that pressure gauges will be assessable under ItemHeading No.90.24 and cannot be brought under 84.04/05 or any other item heading in chapters falling under Section XVI merely because they are parts of such article. Similarly, Note 2 to Section XVI only makes it clear that even parts of machinery may be assessable under the same heading as the main machinery, provided they form an integral part of the machine and are suitable for use more or less or principally with a particular kind of machine or number of machines falling under a particular heading. But since this note is subject to Note 1(l), it does not alter the position that the parts are assessable under92.04. We do not think it necessary to discuss the contents of these notes more elaborately; it is sufficient to say that they do not advance the first contention urged on behalf of the appellantsThe parts in the present case as well the principal article of which they are part are both assessable to basic duty at the same rate. Since the duty payable on the part, even without invoking the notification, is not in excess of the duty payable on the article, the assessee cannot be said to have got a partial or complete exemption of basics duty by virtue of Notification No. 35 of 1979. Consequently, the assessee cannot claim any benefit under Notification No. 41 of 1980. This interpretation no doubt leads to an anomaly in marginal cases. If the rate of duty on the part had been 41 per cent, the assessee would have been entitled to a complete exemption from auxiliary duty. On the other hand, if the rate of duty on the part had only been 39 per cent or 40 per cent, he would have to pay the auxiliary duty because the notification does not apply to it in terms. Counsel, however, submits that such anomalies are inevitable in the case of provisions of this type and that, in taxing matters, it is imperative to concentrate on the language of the statute or the relevant statutory instrument. If the wording clearly imposes a tax or gives a relief, that should be given effect to. If the wording does not justify either the imposition or the relief, it should not be extended merely on the ground that there may be some unintended anomaly as a consequence of the interpretation or that the equities of the situation require a more liberal interpretation9. There is, however, another way of reading the notifications before us and it is this which appeals to us as the more reasonable one. On this interpretation, relief under Notification No. 41 of 1980 will not depend upon the actual operation or application of Notification No. 35 of 1979 in the case of a particular item of goods. It is intended for a class of goods. The 1979 notification grants an exemption or concession in respect of the basic duty payable on certain classes of goods viz. parts of articles which fall under one of the specified headings and required for certain purposes. The purport and intention of the 1980 notification is to exempt the class of goods falling under the purview of the 1979 notification from auxiliary duty as well. The exemption under the 1980 notification does not depend, in this view, on the practical effect of the application of the 1979 notification in a particular case. Its applicability should not be confined to items of goods in respect of which a reduction in duty is actually enjoyed under one of the notifications included in the schedule to the 1980 notification. There appears to be no logic in saying that the exemption from auxiliary duty in respect of the same part will be available only where the duty chargeable on the part is more than, but becomes equal to, that on the whole article by applying the 1979 notification but not where the duty on the part is the same as that of the whole even otherwise. Equally, it seems absurd to say that when the part suffers a basic duty of 40 per cent and the whole a duty of 40 per cent, there will be a countervailing duty but that there will be no such duty where the basic duty on the part is 41 per cent or more but reduced to 40 per cent because of the 1977 notification. The correct position appears to be that the purpose and purport of the 1979 notification is to ensure that, in respect of the articles listed therein, the part should not suffer a higher duty than the whole. The 1980 notification likewise exempts this category of articles, which enjoy the benefit of the same or less duty on the part than that on the whole, from auxiliary duty10. We think that this interpretation not only does not do any violence to the language of the notifications but, on the other hand, gives effect to its true intent and purpose. We, therefore, uphold the view taken by the Tribunal somewhat hesitantly, that the assessee was entitled to exemption from auxiliary duty in respect of the goods in questionThough this was a new point, we were inclined to consider it. But, after some further research into the terms of the various notifications issued on or after March 1, 1981, he conceded that the exemption continued to be available on the same or similar terms.
|
MAHANAGAR TELEPHONE NIGAM LTD Vs. CANARA BANK | v. Rishabh Enterprises ( (2018) 15 SCC 678 ) invoked the Group of Companies doctrine in a domestic arbitration under Part I of the 1996 Act. 10.7. Coming to the facts of the present case, CANFINA was set up as a wholly owned subsidiary of Canara Bank. This is evident from the Report of the Joint Committee to Enquire into Irregularities in Securities and Banking Transactions, 1993, Report, Presented to the Lok Sabha on 21 st December, 1993 which states as follows :?Canbank Financial Services Ltd. 6.14 CANFINA was set up as a wholly owned subsidiary of Canara Bank and it commenced its operation with its Head Office at Bangalore on 1 st June, 1987. Its authorized and paid up capital are Rs. 50 crores and Rs. 10 crores respectively. It was staffed mostly be personnel from Canara Bank and has branches at Ahmedabad, Bombay, Calcutta, Hyderabad, Madras and New Delhi besides Bangalore. As the Board comprised mostly of senior executives of Canara Bank and its Chief Executive is also a senior official of that bank (on deputation) the company functioned under the umbrella of the parent bank; besides it submits periodical returns on its functioning to the Board of Canara Bank for information. 6.15 The activities authorized to be conducted by the Company are equipment leasing, merchant-banking, venture capital and consultancy services. The Company, initially deployed a major portion of its owned funds and deposits in equipment leasing business and obtained the classification of an ‘Equipment leasing company? from the Department of Finance Companies of RBI; this classification entitles the company to mobilize public deposits to the extent of ten time its owned funds. … 6.25 The Committee hope that the nature and extent of the financial assistance being provided by Canara Bank to its subsidiaries are such as could be justified on prudent commercial norms. Further the parent bank cannot be absolved of the responsibility for various irregularities of its subsidiary. ? (emphasis supplied) 10.8. The disputes between the parties emanated out of the transaction dated 10.02.1992, whereby CANFINA has subscribed to the bonds floated by MTNL. CANFINA subsequently transferred the Bonds to its holding Company 3– Canara Bank. It is the contention of MTNL, that since CANFINA did not pay the entire sale consideration for the Bonds, MTNL eventually was constrained to cancel the allotment of the Bonds. 10.9. It will be a futile effort to decide the disputes only between MTNL and Canara Bank, in the absence of CANFINA, since undisputedly, the original transaction emanated from a transaction between MTNL and CANFINA – the original purchaser of the Bonds. The disputes arose on the cancellation of the Bonds by MTNL on the ground that the entire consideration was not paid. There is a clear and direct nexus between the issuance of the Bonds, its subsequent transfer by CANFINA to Canara Bank, and the cancellation by MTNL, which has led to disputes between the three parties. Therefore, CANFINA is undoubtedly a necessary and proper party to the arbitration proceedings. 10.10. Given the tri-patite nature of the transaction, there can be a final resolution of the disputes, only if all three parties are joined in the arbitration proceedings, to finally resolve the disputes which have been pending for over 26 years now. It is of relevance to note that CANFINA has participated in the proceedings before the High Court, and the Committee on Disputes. CANFINA was also represented by its separate Counsel before the Sole Arbitrator. Canara Bank in CWP No. 560 of 1995 filed before the Delhi High Court, had joined CANFINA as Respondent No. 2, even though it was joined as a proforma party. CANFINA was represented by Counsel in the Writ Proceedings before the Delhi High Court. The Counsel for CANFINA was however not present on two dates i.e. on 16.09.2011 and 21.10.2011, when the High Court recorded the agreement between the parties for reference of disputes to arbitration. MTNL had submitted before the Delhi High Court that Canara Bank should agree to take over the liabilities of CANFINA before the arbitration could commence. The High Court recorded that there was no necessity of requiring Canara Bank to agree to take over the liabilities of CANFINA, prior to the arbitration proceedings. This issue would be decided in the arbitration. 10.11. On the commencement of arbitration proceedings before the Sole Arbitrator, notice was issued by the Sole Arbitrator to all the three parties including CANFINA, which was represented by its Counsel. 10.12. We find that the objection to CANFINA being impleaded as a party to the arbitration proceedings was raised by Canara Bank, and not CANFINA. 10.13. We do not find any merit in the objection raised by Canara Bank opposing the joining of CANFINA as a party to the dispute. Canara Bank vide letters dated 05.03.2009 and 17.03.2010 had enclosed a Draft Arbitration Agreement to MTNL, wherein it has clearly stated that the arbitration would be between three parties i.e. Canara Bank and CANFINA as party of the first part, and MTNL as party of the second part. It is incomprehensible why Canara Bank is now objecting to the impleadment of CANFINA in the arbitration proceedings. There is no justifiable ground advanced by the Counsel for Canara Bank to oppose the impleadment of CANFINA in the arbitration proceedings. 10.14. The present case is one of implied or tacit consent by Respondent No. 2 – CANFINA to being impleaded in the arbitral proceedings, which is evident from the conduct of the parties. We find that Respondent No. 2 – CANFINA has throughout participated in the proceedings before the Committee on Disputes, before the Delhi High Court, before the Sole Arbitrator, and was represented by its separate Counsel before this Court in the present appeal. There was a clear intention of the parties to bind both Canara Bank, and its subsidiary – CANFINA to the proceedings. In this case, there can be no final resolution of the disputes, unless all three parties are joined in the arbitration. | 1[ds]9. THE EXISTENCE OF A VALID ARBITRATION AGREEMENTA valid arbitration agreement constitutes the heart of an arbitration. An arbitration agreement is the written agreement between the parties, to submit their existing, or future disputes or differences, to arbitration. A valid arbitration agreement is the foundation stone on which the entire edifice of the arbitral process is structured. A binding agreement for disputes to be resolved through arbitration is a sine-qua-non for referring the parties to arbitration9.2. The arbitration agreement need not be in any particular form. What is required to be ascertained is the intention of the parties to settle their disputes through arbitration. The essential elements or attributes of an arbitration agreement is the agreement to refer their disputes or differences to arbitration, which is expressly or impliedly spelt out from a clause in an agreement, separate agreement, or documents/correspondence exchanged between the partiesThe agreement between MTNL and Canara Bank to refer the disputes to arbitration is evidenced from the following documents exchanged between the parties, and the proceedings :(i) The Minutes of the Meeting dated 27.03.2001 convened by the Cabinet Secretariat, wherein all three parties were present and participated in the proceedings. The Committee on Disputes, in the Meeting dated 16.12.2008 expressed the view that all the three parties should take recourse to arbitration in view of the different inter-liked transactions between them. Canara Bank suggested that to expedite the arbitration, it should be conducted under the Arbitration & Conciliation Act, 1996. This was accepted by MTNL, and no objection was raised(ii) Pursuant to the proceedings conducted by the Cabinet Secretariat, Canara Bank addressed letters dated 05.03.2009 and 17.03.2010 to MTNL, wherein it enclosed a draft Arbitration Agreements, wherein all three parties i.e. Canara Bank, CANFINA and MTNL would be joined in the arbitration proceedings.(iv) Pursuant thereto, MTNL participated in the proceedings conducted by the Sole Arbitrator, and filed its Claim, and Counter-Claim. No objection was raised before the Sole Arbitrator that there was no arbitration agreement in writing between the parties. The only objection raised was that CANFINA should be joined as a necessary party in the proceedingsIn the present case, Canara Bank had filed its Statement of Claim before the Arbitrator, and MTNL filed its Reply to the Statement of Claim, and also made a Counter Claim against Canara BankThe statement of Claim and Defence filed before the Arbitrator would constitute evidence of the existence of an arbitration agreement, which was not denied by the other party, under Section 7(4)(c) of the 1996 ActIn view of the aforesaid discussion, the objection raised by MTNL is devoid of any merit, and is hereby rejected10. JOINDER OF CANFINA IN THE ARBITRAL PROCEEDINGS10.1. Canara Bank raised an objection to the joinder of Respondent No. 2 – CANFINA as a party to the arbitration proceedings10.2. As per the principles of contract law, an agreement entered into by one of the companies in a group, cannot be binding on the other members of the same group, as each company is a separate legal entity which has separate legal rights and liabilitiesThe parent, or the subsidiary company, entering into an agreement, unless acting in accord with the principles of agency or representation, will be the only entity in a group, to be bound by that agreementSimilarly, an arbitration agreement is also governed by the same principles, and normally, the company entering into the agreement, would alone be bound by it10.3. A non-signatory can be bound by an arbitration agreement on the basis of the ?Group of Companies? doctrine, where the conduct of the parties evidences a clear intention of the parties to bind both the signatory as well as the non-signatory partiesCourts and tribunals have invoked this doctrine to join a non-signatory member of the group, if they are satisfied that the non-signatory company was by reference to the common intention of the parties, a necessary party to the contract10.7. Coming to the facts of the present case, CANFINA was set up as a wholly owned subsidiary of Canara Bank. This is evident from the Report of the Joint Committee to Enquire into Irregularities in Securities and Banking Transactions, 1993, Report, Presented to the Lok Sabha on 21 st December, 199310.8. The disputes between the parties emanated out of the transaction dated 10.02.1992, whereby CANFINA has subscribed to the bonds floated by MTNL. CANFINA subsequently transferred the Bonds to its holding Company 3– Canara Bank10.9. It will be a futile effort to decide the disputes only between MTNL and Canara Bank, in the absence of CANFINA, since undisputedly, the original transaction emanated from a transaction between MTNL and CANFINA – the original purchaser of the Bonds. The disputes arose on the cancellation of the Bonds by MTNL on the ground that the entire consideration was not paidThere is a clear and direct nexus between the issuance of the Bonds, its subsequent transfer by CANFINA to Canara Bank, and the cancellation by MTNL, which has led to disputes between the three partiesTherefore, CANFINA is undoubtedly a necessary and proper party to the arbitration proceedings10.10. Given the tri-patite nature of the transaction, there can be a final resolution of the disputes, only if all three parties are joined in the arbitration proceedings, to finally resolve the disputes which have been pending for over 26 years nowIt is of relevance to note that CANFINA has participated in the proceedings before the High Court, and the Committee on Disputes. CANFINA was also represented by its separate Counsel before the Sole Arbitrator. Canara Bank in CWP No. 560 of 1995 filed before the Delhi High Court, had joined CANFINA as Respondent No. 2, even though it was joined as a proforma party. CANFINA was represented by Counsel in the Writ Proceedings before the Delhi High Court. The Counsel for CANFINA was however not present on two dates i.e. on 16.09.2011 and 21.10.2011, when the High Court recorded the agreement between the parties for reference of disputes to arbitration. MTNL had submitted before the Delhi High Court that Canara Bank should agree to take over the liabilities of CANFINA before the arbitration could commence. The High Court recorded that there was no necessity of requiring Canara Bank to agree to take over the liabilities of CANFINA, prior to the arbitration proceedings. This issue would be decided in the arbitration10.11. On the commencement of arbitration proceedings before the Sole Arbitrator, notice was issued by the Sole Arbitrator to all the three parties including CANFINA, which was represented by its Counsel10.12. We find that the objection to CANFINA being impleaded as a party to the arbitration proceedings was raised by Canara Bank, and not CANFINA10.13. We do not find any merit in the objection raised by Canara Bank opposing the joining of CANFINA as a party to the dispute. Canara Bank vide letters dated 05.03.2009 and17.03.2010 had enclosed a Draft Arbitration Agreement to MTNL, wherein it has clearly stated that the arbitration would be between three parties i.e. Canara Bank and CANFINA as party of the first part, and MTNL as party of the second partIt is incomprehensible why Canara Bank is now objecting to the impleadment of CANFINA in the arbitration proceedings. There is no justifiable ground advanced by the Counsel for Canara Bank to oppose the impleadment of CANFINA in the arbitration proceedings10.14. The present case is one of implied or tacit consent by Respondent No. 2 – CANFINA to being impleaded in the arbitral proceedings, which is evident from the conduct of the parties. We find that Respondent No. 2 – CANFINA has throughout participated in the proceedings before the Committee on Disputes, before the Delhi High Court, before the Sole Arbitrator, and was represented by its separate Counsel before this Court in the present appeal. There was a clear intention of the parties to bind both Canara Bank, and its subsidiary – CANFINA to the proceedings. In this case, there can be no final resolution of the disputes, unless all three parties are joined in the arbitration9.9. The agreement between the parties as recorded in a judicial Order, is final and conclusive of the agreement entered into between the parties.(State of Maharashtra v. Ramdas Shrinivas Nayak (1982) 2 SCC 463. See also Chitra Kumari v. Union of India (2001) 3 SCC 208 ) The Appellant – MTNL after giving its consent to refer the disputes to arbitration before the Delhi High Court, is now estopped from contending that there was no written agreement to refer the parties to arbitration9.10. An additional ground, for rejecting the preliminary objection raised by MTNL is based on Section 7(4)(c) of the Arbitration and Conciliation Act, 199610.4. The doctrine of ‘Group of Companies? had its origins in the 1970?s from French arbitration practice. The ‘Group of Companies? doctrine indicates the implied consent to an agreement to arbitrate, in the context of modern multi-party business transactionsThe ‘Group of Companies? doctrine has been invoked by courts and tribunals in arbitrations, where an arbitration agreement is entered into by one of the companies in the group; and the non-signatory affiliate, or sister, or parent concern, is held to be bound by the arbitration agreement, if the facts and circumstances of the case demonstrate that it was the mutual intention of all parties to bind both the signatories and the non-signatory affiliates in the groupThe circumstances in which the ‘Group of Companies? Doctrine could be invoked to bind the non-signatory affiliate of a parent company, or inclusion of a third party to an arbitration, if there is a direct relationship between the party which is a signatory to the arbitration agreement; direct commonality of the subject matter; the composite nature of the transaction between the partiesA ‘composite transaction? refers to a transaction which is inter-linked in nature; or, where the performance of the agreement may not be feasible without the aid, execution, and performance of the supplementary or the ancillary agreement, for achieving the common object, and collectively having a bearing on the dispute. | 1 | 6,578 | 1,855 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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v. Rishabh Enterprises ( (2018) 15 SCC 678 ) invoked the Group of Companies doctrine in a domestic arbitration under Part I of the 1996 Act. 10.7. Coming to the facts of the present case, CANFINA was set up as a wholly owned subsidiary of Canara Bank. This is evident from the Report of the Joint Committee to Enquire into Irregularities in Securities and Banking Transactions, 1993, Report, Presented to the Lok Sabha on 21 st December, 1993 which states as follows :?Canbank Financial Services Ltd. 6.14 CANFINA was set up as a wholly owned subsidiary of Canara Bank and it commenced its operation with its Head Office at Bangalore on 1 st June, 1987. Its authorized and paid up capital are Rs. 50 crores and Rs. 10 crores respectively. It was staffed mostly be personnel from Canara Bank and has branches at Ahmedabad, Bombay, Calcutta, Hyderabad, Madras and New Delhi besides Bangalore. As the Board comprised mostly of senior executives of Canara Bank and its Chief Executive is also a senior official of that bank (on deputation) the company functioned under the umbrella of the parent bank; besides it submits periodical returns on its functioning to the Board of Canara Bank for information. 6.15 The activities authorized to be conducted by the Company are equipment leasing, merchant-banking, venture capital and consultancy services. The Company, initially deployed a major portion of its owned funds and deposits in equipment leasing business and obtained the classification of an ‘Equipment leasing company? from the Department of Finance Companies of RBI; this classification entitles the company to mobilize public deposits to the extent of ten time its owned funds. … 6.25 The Committee hope that the nature and extent of the financial assistance being provided by Canara Bank to its subsidiaries are such as could be justified on prudent commercial norms. Further the parent bank cannot be absolved of the responsibility for various irregularities of its subsidiary. ? (emphasis supplied) 10.8. The disputes between the parties emanated out of the transaction dated 10.02.1992, whereby CANFINA has subscribed to the bonds floated by MTNL. CANFINA subsequently transferred the Bonds to its holding Company 3– Canara Bank. It is the contention of MTNL, that since CANFINA did not pay the entire sale consideration for the Bonds, MTNL eventually was constrained to cancel the allotment of the Bonds. 10.9. It will be a futile effort to decide the disputes only between MTNL and Canara Bank, in the absence of CANFINA, since undisputedly, the original transaction emanated from a transaction between MTNL and CANFINA – the original purchaser of the Bonds. The disputes arose on the cancellation of the Bonds by MTNL on the ground that the entire consideration was not paid. There is a clear and direct nexus between the issuance of the Bonds, its subsequent transfer by CANFINA to Canara Bank, and the cancellation by MTNL, which has led to disputes between the three parties. Therefore, CANFINA is undoubtedly a necessary and proper party to the arbitration proceedings. 10.10. Given the tri-patite nature of the transaction, there can be a final resolution of the disputes, only if all three parties are joined in the arbitration proceedings, to finally resolve the disputes which have been pending for over 26 years now. It is of relevance to note that CANFINA has participated in the proceedings before the High Court, and the Committee on Disputes. CANFINA was also represented by its separate Counsel before the Sole Arbitrator. Canara Bank in CWP No. 560 of 1995 filed before the Delhi High Court, had joined CANFINA as Respondent No. 2, even though it was joined as a proforma party. CANFINA was represented by Counsel in the Writ Proceedings before the Delhi High Court. The Counsel for CANFINA was however not present on two dates i.e. on 16.09.2011 and 21.10.2011, when the High Court recorded the agreement between the parties for reference of disputes to arbitration. MTNL had submitted before the Delhi High Court that Canara Bank should agree to take over the liabilities of CANFINA before the arbitration could commence. The High Court recorded that there was no necessity of requiring Canara Bank to agree to take over the liabilities of CANFINA, prior to the arbitration proceedings. This issue would be decided in the arbitration. 10.11. On the commencement of arbitration proceedings before the Sole Arbitrator, notice was issued by the Sole Arbitrator to all the three parties including CANFINA, which was represented by its Counsel. 10.12. We find that the objection to CANFINA being impleaded as a party to the arbitration proceedings was raised by Canara Bank, and not CANFINA. 10.13. We do not find any merit in the objection raised by Canara Bank opposing the joining of CANFINA as a party to the dispute. Canara Bank vide letters dated 05.03.2009 and 17.03.2010 had enclosed a Draft Arbitration Agreement to MTNL, wherein it has clearly stated that the arbitration would be between three parties i.e. Canara Bank and CANFINA as party of the first part, and MTNL as party of the second part. It is incomprehensible why Canara Bank is now objecting to the impleadment of CANFINA in the arbitration proceedings. There is no justifiable ground advanced by the Counsel for Canara Bank to oppose the impleadment of CANFINA in the arbitration proceedings. 10.14. The present case is one of implied or tacit consent by Respondent No. 2 – CANFINA to being impleaded in the arbitral proceedings, which is evident from the conduct of the parties. We find that Respondent No. 2 – CANFINA has throughout participated in the proceedings before the Committee on Disputes, before the Delhi High Court, before the Sole Arbitrator, and was represented by its separate Counsel before this Court in the present appeal. There was a clear intention of the parties to bind both Canara Bank, and its subsidiary – CANFINA to the proceedings. In this case, there can be no final resolution of the disputes, unless all three parties are joined in the arbitration.
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wholly owned subsidiary of Canara Bank. This is evident from the Report of the Joint Committee to Enquire into Irregularities in Securities and Banking Transactions, 1993, Report, Presented to the Lok Sabha on 21 st December, 199310.8. The disputes between the parties emanated out of the transaction dated 10.02.1992, whereby CANFINA has subscribed to the bonds floated by MTNL. CANFINA subsequently transferred the Bonds to its holding Company 3– Canara Bank10.9. It will be a futile effort to decide the disputes only between MTNL and Canara Bank, in the absence of CANFINA, since undisputedly, the original transaction emanated from a transaction between MTNL and CANFINA – the original purchaser of the Bonds. The disputes arose on the cancellation of the Bonds by MTNL on the ground that the entire consideration was not paidThere is a clear and direct nexus between the issuance of the Bonds, its subsequent transfer by CANFINA to Canara Bank, and the cancellation by MTNL, which has led to disputes between the three partiesTherefore, CANFINA is undoubtedly a necessary and proper party to the arbitration proceedings10.10. Given the tri-patite nature of the transaction, there can be a final resolution of the disputes, only if all three parties are joined in the arbitration proceedings, to finally resolve the disputes which have been pending for over 26 years nowIt is of relevance to note that CANFINA has participated in the proceedings before the High Court, and the Committee on Disputes. CANFINA was also represented by its separate Counsel before the Sole Arbitrator. Canara Bank in CWP No. 560 of 1995 filed before the Delhi High Court, had joined CANFINA as Respondent No. 2, even though it was joined as a proforma party. CANFINA was represented by Counsel in the Writ Proceedings before the Delhi High Court. The Counsel for CANFINA was however not present on two dates i.e. on 16.09.2011 and 21.10.2011, when the High Court recorded the agreement between the parties for reference of disputes to arbitration. MTNL had submitted before the Delhi High Court that Canara Bank should agree to take over the liabilities of CANFINA before the arbitration could commence. The High Court recorded that there was no necessity of requiring Canara Bank to agree to take over the liabilities of CANFINA, prior to the arbitration proceedings. This issue would be decided in the arbitration10.11. On the commencement of arbitration proceedings before the Sole Arbitrator, notice was issued by the Sole Arbitrator to all the three parties including CANFINA, which was represented by its Counsel10.12. We find that the objection to CANFINA being impleaded as a party to the arbitration proceedings was raised by Canara Bank, and not CANFINA10.13. We do not find any merit in the objection raised by Canara Bank opposing the joining of CANFINA as a party to the dispute. Canara Bank vide letters dated 05.03.2009 and17.03.2010 had enclosed a Draft Arbitration Agreement to MTNL, wherein it has clearly stated that the arbitration would be between three parties i.e. Canara Bank and CANFINA as party of the first part, and MTNL as party of the second partIt is incomprehensible why Canara Bank is now objecting to the impleadment of CANFINA in the arbitration proceedings. There is no justifiable ground advanced by the Counsel for Canara Bank to oppose the impleadment of CANFINA in the arbitration proceedings10.14. The present case is one of implied or tacit consent by Respondent No. 2 – CANFINA to being impleaded in the arbitral proceedings, which is evident from the conduct of the parties. We find that Respondent No. 2 – CANFINA has throughout participated in the proceedings before the Committee on Disputes, before the Delhi High Court, before the Sole Arbitrator, and was represented by its separate Counsel before this Court in the present appeal. There was a clear intention of the parties to bind both Canara Bank, and its subsidiary – CANFINA to the proceedings. In this case, there can be no final resolution of the disputes, unless all three parties are joined in the arbitration9.9. The agreement between the parties as recorded in a judicial Order, is final and conclusive of the agreement entered into between the parties.(State of Maharashtra v. Ramdas Shrinivas Nayak (1982) 2 SCC 463. See also Chitra Kumari v. Union of India (2001) 3 SCC 208 ) The Appellant – MTNL after giving its consent to refer the disputes to arbitration before the Delhi High Court, is now estopped from contending that there was no written agreement to refer the parties to arbitration9.10. An additional ground, for rejecting the preliminary objection raised by MTNL is based on Section 7(4)(c) of the Arbitration and Conciliation Act, 199610.4. The doctrine of ‘Group of Companies? had its origins in the 1970?s from French arbitration practice. The ‘Group of Companies? doctrine indicates the implied consent to an agreement to arbitrate, in the context of modern multi-party business transactionsThe ‘Group of Companies? doctrine has been invoked by courts and tribunals in arbitrations, where an arbitration agreement is entered into by one of the companies in the group; and the non-signatory affiliate, or sister, or parent concern, is held to be bound by the arbitration agreement, if the facts and circumstances of the case demonstrate that it was the mutual intention of all parties to bind both the signatories and the non-signatory affiliates in the groupThe circumstances in which the ‘Group of Companies? Doctrine could be invoked to bind the non-signatory affiliate of a parent company, or inclusion of a third party to an arbitration, if there is a direct relationship between the party which is a signatory to the arbitration agreement; direct commonality of the subject matter; the composite nature of the transaction between the partiesA ‘composite transaction? refers to a transaction which is inter-linked in nature; or, where the performance of the agreement may not be feasible without the aid, execution, and performance of the supplementary or the ancillary agreement, for achieving the common object, and collectively having a bearing on the dispute.
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SSANGYONG ENGINEERING AND CONSTRUCTION CO. LTD Vs. NATIONAL HIGHWAYS AUTHORITY OF INDIA(NHAI) | 34(2)(a)(iii) of the Model Law (PT Asuransi at [57]), with the exception that the courts judicial power to decide what the public policy of Singapore is cannot be abrogated (AJU v AJT [2011] 4 SLR 739 ( AJU v AJT) at [62]). …… xxx xxx xxx 159. …… This balance is generally in favour of the policy of enforcing arbitral awards, and only tilts in favour of the countervailing public policy where the violation of that policy would shock the conscience or would be contrary to the forums most basic notion of morality and justice. In determining whether the balance tilts towards the countervailing public policy, it is important to consider both the subject nature of the public policy, the degree of violation of that public policy and the consequences of the violation. (emphasis supplied) 45. Given these parameters of challenge, let us now examine the arguments of learned counsel on behalf of the appellant. There can be no doubt that the government guidelines that were referred to and strongly relied upon by the majority award to arrive at the linking factor were never in evidence before the Tribunal. In fact, the Tribunal relies upon the said guidelines by itself and states that they are to be found on a certain website. The ground that is expressly taken in the Section 34 petition by the appellant is as follows: It is pertinent to mention here that no such guidelines of the Ministry of Industrial Development had been filed on record by either of the parties and therefore, the Tribunal had no jurisdiction to rely upon the same while deciding the issue before it. Accordingly, the impugned Award is liable to be set aside. 46. Learned counsel for the respondent also agreed that these guidelines were never, in fact, disclosed in the arbitration proceedings. This being the case, and given the authorities cited hereinabove, it is clear that the appellant would be directly affected as it would otherwise be unable to present its case, not being allowed to comment on the applicability or interpretation of those guidelines. For example, the appellant could have argued, without prejudice to the argument that linking is de hors the contract, that of the three methods for linking the New Series with the Old Series, either the second or the third method would be preferable to the first method, which the majority award has applied on its own. For this reason, the majority award needs to be set aside under Section 34(2)(a)(iii). 47. Insofar as the argument that a new contract had been made by the majority award for the parties, without the consent of the appellant, by applying a formula outside the agreement, as per the Circular dated 15.02.2013, which itself could not be applied without the appellants consent, we are of the view that this ground under Section 34(2)(a)(iv) would not be available, given the authorities discussed in detail by us. It is enough to state that the appellant argued before the arbitral tribunal that a new contract was being made by applying the formula outside what was prescribed, which was answered by the respondent, stating that it would not be possible to apply the old formula without a linking factor which would have to be introduced. Considering that the parties were at issue on this, the dispute as to whether the linking factor applied, thanks to the Circular dated 15.02.2013, is clearly something raised and argued by the parties, and is certainly something which would fall within the arbitration clause or the reference to arbitration that governs the parties. This being the case, this argument would not obtain and Section 34(2)(a)(iv), as a result, would not be attracted. 48. However, when it comes to the public policy of India argument based upon most basic notions of justice, it is clear that this ground can be attracted only in very exceptional circumstances when the conscience of the Court is shocked by infraction of fundamental notions or principles of justice. It can be seen that the formula that was applied by the agreement continued to be applied till February, 2013 – in short, it is not correct to say that the formula under the agreement could not be applied in view of the Ministrys change in the base indices from 1993-94 to 2004-05. Further, in order to apply a linking factor, a Circular, unilaterally issued by one party, cannot possibly bind the other party to the agreement without that other partys consent. Indeed, the Circular itself expressly stipulates that it cannot apply unless the contractors furnish an undertaking/affidavit that the price adjustment under the Circular is acceptable to them. We have seen how the appellant gave such undertaking only conditionally and without prejudice to its argument that the Circular does not and cannot apply. This being the case, it is clear that the majority award has created a new contract for the parties by applying the said unilateral Circular and by substituting a workable formula under the agreement by another formula de hors the agreement. This being the case, a fundamental principle of justice has been breached, namely, that a unilateral addition or alteration of a contract can never be foisted upon an unwilling party, nor can a party to the agreement be liable to perform a bargain not entered into with the other party. Clearly, such a course of conduct would be contrary to fundamental principles of justice as followed in this country, and shocks the conscience of this Court. However, we repeat that this ground is available only in very exceptional circumstances, such as the fact situation in the present case. Under no circumstance can any Court interfere with an arbitral award on the ground that justice has not been done in the opinion of the Court. That would be an entry into the merits of the dispute which, as we have seen, is contrary to the ethos of Section 34 of the 1996 Act, as has been noted earlier in this judgment. | 1[ds]11. There is no doubt that the amendments made in Explanations 1 and 2 to Section 34(2)(b)(ii) have been made for the avoidance of any doubt, which language, however, is not found in Section 34(2A). Apart from the anomalous position which would arise if the Section were to be applied piecemeal, namely, that Explanations 1 and 2 were to have retrospective effect, being only to remove doubts, whereas sub-section (2A) would have to apply prospectively as a new ground, with inbuilt exceptions, having been introduced for the first time, it is clear that even on principle, it is the substance of the amendment that is to be looked at rather than the form. Therefore, even in cases where, for avoidance of doubt, something is clarified by way of an amendment, such clarification cannot be retrospective if the earlier law has been changed substantively.12. There is no doubt that in the present case, fundamental changes have been made in the law. The expansion of public policy of India in ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705 [ Saw Pipes] and ONGC Ltd. v. Western Geco International Ltd., (2014) 9 SCC 263 [ Western Geco] has been done away with, and a new ground of patent illegality, with inbuilt exceptions, has been introduced. Given this, we declare that Section 34, as amended, will apply only to Section 34 applications that have been made to the Court on or after 23.10.2015, irrespective of the fact that the arbitration proceedings may have commenced prior to that date23. What is clear, therefore, is that the expression public policy of India, whether contained in Section 34 or in Section 48, would now mean the fundamental policy of Indian law as explained in paragraphs 18 and 27 of Associate Builders (supra), i.e., the fundamental policy of Indian law would be relegated to the Renusagar understanding of this expression. This would necessarily mean that the Western Geco (supra) expansion has been done away with. In short, Western Geco (supra), as explained in paragraphs 28 and 29 of Associate Builders (supra), would no longer obtain, as under the guise of interfering with an award on the ground that the arbitrator has not adopted a judicial approach, the Courts intervention would be on the merits of the award, which cannot be permitted post amendment. However, insofar as principles of natural justice are concerned, as contained in Sections 18 and 34(2)(a)(iii) of the 1996 Act, these continue to be grounds of challenge of an award, as is contained in paragraph 30 of Associate Builders (supra)24. It is important to notice that the ground for interference insofar as it concerns interest of India has since been deleted, and therefore, no longer obtains. Equally, the ground for interference on the basis that the award is in conflict with justice or morality is now to be understood as a conflict with the most basic notions of morality or justice. This again would be in line with paragraphs 36 to 39 of Associate Builders (supra), as it is only such arbitral awards that shock the conscience of the court that can be set aside on this ground25. Thus, it is clear that public policy of India is now constricted to mean firstly, that a domestic award is contrary to the fundamental policy of Indian law, as understood in paragraphs 18 and 27 of Associate Builders (supra), or secondly, that such award is against basic notions of justice or morality as understood in paragraphs 36 to 39 of Associate Builders (supra). Explanation 2 to Section 34(2)(b)(ii) and Explanation 2 to Section 48(2)(b)(ii) was added by the Amendment Act only so that Western Geco (supra), as understood in Associate Builders (supra), and paragraphs 28 and 29 in particular, is now done away with26. Insofar as domestic awards made in India are concerned, an additional ground is now available under sub-section (2A), added by the Amendment Act, 2015, to Section 34. Here, there must be patent illegality appearing on the face of the award, which refers to such illegality as goes to the root of the matter but which does not amount to mere erroneous application of the law. In short, what is not subsumed within the fundamental policy of Indian law, namely, the contravention of a statute not linked to public policy or public interest, cannot be brought in by the backdoor when it comes to setting aside an award on the ground of patent illegality27. Secondly, it is also made clear that re-appreciation of evidence, which is what an appellate court is permitted to do, cannot be permitted under the ground of patent illegality appearing on the face of the award29. The change made in Section 28(3) by the Amendment Act really follows what is stated in paragraphs 42.3 to 45 in Associate Builders (supra), namely, that the construction of the terms of a contract is primarily for an arbitrator to decide, unless the arbitrator construes the contract in a manner that no fair-minded or reasonable person would; in short, that the arbitrators view is not even a possible view to take. Also, if the arbitrator wanders outside the contract and deals with matters not allotted to him, he commits an error of jurisdiction. This ground of challenge will now fall within the new ground added under Section 34(2A)30. What is important to note is that a decision which is perverse, as understood in paragraphs 31 and 32 of Associate Builders (supra), while no longer being a ground for challenge under public policy of India, would certainly amount to a patent illegality appearing on the face of the award. Thus, a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality. Additionally, a finding based on documents taken behind the back of the parties by the arbitrator would also qualify as a decision based on no evidence inasmuch as such decision is not based on evidence led by the parties, and therefore, would also have to be characterised as perverse31. Given the fact that the amended Act will now apply, and that the patent illegality ground for setting aside arbitral awards in international commercial arbitrations will not apply, it is necessary to advert to the grounds contained in Section 34(2)(a)(iii) and (iv) as applicable to the facts of the present case36. Sections 18, 24(3), and 26 are important pointers to what is contained in the ground of challenge mentioned in Section 34(2)(a)(iii). Under Section 18, each party is to be given a full opportunity to present its case. Under Section 24(3), all statements, documents, or other information supplied by one party to the arbitral tribunal shall be communicated to the other party, and any expert report or document on which the arbitral tribunal relies in making its decision shall be communicated to the parties. Section 26 is an important pointer to the fact that when an experts report is relied upon by an arbitral tribunal, the said report, and all documents, goods, or other property in the possession of the expert, with which he was provided in order to prepare his report, must first be made available to any party who requests for these things. Secondly, once the report is arrived at, if requested, parties have to be given an opportunity to put questions to him and to present their own expert witnesses in order to testify on the points at issue37. Under the rubric of a party being otherwise unable to present its case, the standard textbooks on the subject have stated that where materials are taken behind the back of the parties by the Tribunal, on which the parties have had no opportunity to comment, the ground under Section 34(2)(a)(iii) would be made out.39. So far as this defence is concerned, standard textbooks on the subject have held that the expression submission to arbitration either refers to the arbitration agreement itself, or to disputes submitted to arbitration, and that so long as disputes raised are within the ken of the arbitration agreement or the disputes submitted to arbitration, they cannot be said to be disputes which are either not contemplated by or which fall outside the arbitration agreement. The expression submission to arbitration occurs in various provisions of the 1996 Act.42. A conspectus of the above authorities would show that where an arbitral tribunal has rendered an award which decides matters either beyond the scope of the arbitration agreement or beyond the disputes referred to the arbitral tribunal, as understood in Praveen Enterprises (supra), the arbitral award could be said to have dealt with decisions on matters beyond the scope of submission to arbitration43. We therefore hold, following the aforesaid authorities, that in the guise of misinterpretation of the contract, and consequent errors of jurisdiction, it is not possible to state that the arbitral award would be beyond the scope of submission to arbitration if otherwise the aforesaid misinterpretation (which would include going beyond the terms of the contract), could be said to have been fairly comprehended as disputes within the arbitration agreement, or which were referred to the decision of the arbitrators as understood by the authorities above. If an arbitrator is alleged to have wandered outside the contract and dealt with matters not allotted to him, this would be a jurisdictional error which could be corrected on the ground of patent illegality, which, as we have seen, would not apply to international commercial arbitrations that are decided under Part II of the 1996 Act. To bring in by the backdoor grounds relatable to Section 28(3) of the 1996 Act to be matters beyond the scope of submission to arbitration under Section 34(2)(a)(iv) would not be permissible as this ground must be construed narrowly and so construed, must refer only to matters which are beyond the arbitration agreement or beyond the reference to the arbitral tribunal45. Given these parameters of challenge, let us now examine the arguments of learned counsel on behalf of the appellant. There can be no doubt that the government guidelines that were referred to and strongly relied upon by the majority award to arrive at the linking factor were never in evidence before the Tribunal. In fact, the Tribunal relies upon the said guidelines by itself and states that they are to be found on a certain website. The ground that is expressly taken in the Section 34 petition by the appellant is as follows:It is pertinent to mention here that no such guidelines of the Ministry of Industrial Development had been filed on record by either of the parties and therefore, the Tribunal had no jurisdiction to rely upon the same while deciding the issue before it. Accordingly, the impugned Award is liable to be set aside46. Learned counsel for the respondent also agreed that these guidelines were never, in fact, disclosed in the arbitration proceedings. This being the case, and given the authorities cited hereinabove, it is clear that the appellant would be directly affected as it would otherwise be unable to present its case, not being allowed to comment on the applicability or interpretation of those guidelines. For example, the appellant could have argued, without prejudice to the argument that linking is de hors the contract, that of the three methods for linking the New Series with the Old Series, either the second or the third method would be preferable to the first method, which the majority award has applied on its own. For this reason, the majority award needs to be set aside under Section 34(2)(a)(iii)47. Insofar as the argument that a new contract had been made by the majority award for the parties, without the consent of the appellant, by applying a formula outside the agreement, as per the Circular dated 15.02.2013, which itself could not be applied without the appellants consent, we are of the view that this ground under Section 34(2)(a)(iv) would not be available, given the authorities discussed in detail by us. It is enough to state that the appellant argued before the arbitral tribunal that a new contract was being made by applying the formula outside what was prescribed, which was answered by the respondent, stating that it would not be possible to apply the old formula without a linking factor which would have to be introduced. Considering that the parties were at issue on this, the dispute as to whether the linking factor applied, thanks to the Circular dated 15.02.2013, is clearly something raised and argued by the parties, and is certainly something which would fall within the arbitration clause or the reference to arbitration that governs the parties. This being the case, this argument would not obtain and Section 34(2)(a)(iv), as a result, would not be attracted48. However, when it comes to the public policy of India argument based upon most basic notions of justice, it is clear that this ground can be attracted only in very exceptional circumstances when the conscience of the Court is shocked by infraction of fundamental notions or principles of justice. It can be seen that the formula that was applied by the agreement continued to be applied till February, 2013 – in short, it is not correct to say that the formula under the agreement could not be applied in view of the Ministrys change in the base indices from 1993-94 to 2004-05. Further, in order to apply a linking factor, a Circular, unilaterally issued by one party, cannot possibly bind the other party to the agreement without that other partys consent. Indeed, the Circular itself expressly stipulates that it cannot apply unless the contractors furnish an undertaking/affidavit that the price adjustment under the Circular is acceptable to them. We have seen how the appellant gave such undertaking only conditionally and without prejudice to its argument that the Circular does not and cannot apply. This being the case, it is clear that the majority award has created a new contract for the parties by applying the said unilateral Circular and by substituting a workable formula under the agreement by another formula de hors the agreement. This being the case, a fundamental principle of justice has been breached, namely, that a unilateral addition or alteration of a contract can never be foisted upon an unwilling party, nor can a party to the agreement be liable to perform a bargain not entered into with the other party. Clearly, such a course of conduct would be contrary to fundamental principles of justice as followed in this country, and shocks the conscience of this Court. However, we repeat that this ground is available only in very exceptional circumstances, such as the fact situation in the present case. Under no circumstance can any Court interfere with an arbitral award on the ground that justice has not been done in the opinion of the Court. That would be an entry into the merits of the dispute which, as we have seen, is contrary to the ethos of Section 34 of the 1996 Act, as has been noted earlier in this judgment. | 1 | 29,076 | 2,926 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
34(2)(a)(iii) of the Model Law (PT Asuransi at [57]), with the exception that the courts judicial power to decide what the public policy of Singapore is cannot be abrogated (AJU v AJT [2011] 4 SLR 739 ( AJU v AJT) at [62]). …… xxx xxx xxx 159. …… This balance is generally in favour of the policy of enforcing arbitral awards, and only tilts in favour of the countervailing public policy where the violation of that policy would shock the conscience or would be contrary to the forums most basic notion of morality and justice. In determining whether the balance tilts towards the countervailing public policy, it is important to consider both the subject nature of the public policy, the degree of violation of that public policy and the consequences of the violation. (emphasis supplied) 45. Given these parameters of challenge, let us now examine the arguments of learned counsel on behalf of the appellant. There can be no doubt that the government guidelines that were referred to and strongly relied upon by the majority award to arrive at the linking factor were never in evidence before the Tribunal. In fact, the Tribunal relies upon the said guidelines by itself and states that they are to be found on a certain website. The ground that is expressly taken in the Section 34 petition by the appellant is as follows: It is pertinent to mention here that no such guidelines of the Ministry of Industrial Development had been filed on record by either of the parties and therefore, the Tribunal had no jurisdiction to rely upon the same while deciding the issue before it. Accordingly, the impugned Award is liable to be set aside. 46. Learned counsel for the respondent also agreed that these guidelines were never, in fact, disclosed in the arbitration proceedings. This being the case, and given the authorities cited hereinabove, it is clear that the appellant would be directly affected as it would otherwise be unable to present its case, not being allowed to comment on the applicability or interpretation of those guidelines. For example, the appellant could have argued, without prejudice to the argument that linking is de hors the contract, that of the three methods for linking the New Series with the Old Series, either the second or the third method would be preferable to the first method, which the majority award has applied on its own. For this reason, the majority award needs to be set aside under Section 34(2)(a)(iii). 47. Insofar as the argument that a new contract had been made by the majority award for the parties, without the consent of the appellant, by applying a formula outside the agreement, as per the Circular dated 15.02.2013, which itself could not be applied without the appellants consent, we are of the view that this ground under Section 34(2)(a)(iv) would not be available, given the authorities discussed in detail by us. It is enough to state that the appellant argued before the arbitral tribunal that a new contract was being made by applying the formula outside what was prescribed, which was answered by the respondent, stating that it would not be possible to apply the old formula without a linking factor which would have to be introduced. Considering that the parties were at issue on this, the dispute as to whether the linking factor applied, thanks to the Circular dated 15.02.2013, is clearly something raised and argued by the parties, and is certainly something which would fall within the arbitration clause or the reference to arbitration that governs the parties. This being the case, this argument would not obtain and Section 34(2)(a)(iv), as a result, would not be attracted. 48. However, when it comes to the public policy of India argument based upon most basic notions of justice, it is clear that this ground can be attracted only in very exceptional circumstances when the conscience of the Court is shocked by infraction of fundamental notions or principles of justice. It can be seen that the formula that was applied by the agreement continued to be applied till February, 2013 – in short, it is not correct to say that the formula under the agreement could not be applied in view of the Ministrys change in the base indices from 1993-94 to 2004-05. Further, in order to apply a linking factor, a Circular, unilaterally issued by one party, cannot possibly bind the other party to the agreement without that other partys consent. Indeed, the Circular itself expressly stipulates that it cannot apply unless the contractors furnish an undertaking/affidavit that the price adjustment under the Circular is acceptable to them. We have seen how the appellant gave such undertaking only conditionally and without prejudice to its argument that the Circular does not and cannot apply. This being the case, it is clear that the majority award has created a new contract for the parties by applying the said unilateral Circular and by substituting a workable formula under the agreement by another formula de hors the agreement. This being the case, a fundamental principle of justice has been breached, namely, that a unilateral addition or alteration of a contract can never be foisted upon an unwilling party, nor can a party to the agreement be liable to perform a bargain not entered into with the other party. Clearly, such a course of conduct would be contrary to fundamental principles of justice as followed in this country, and shocks the conscience of this Court. However, we repeat that this ground is available only in very exceptional circumstances, such as the fact situation in the present case. Under no circumstance can any Court interfere with an arbitral award on the ground that justice has not been done in the opinion of the Court. That would be an entry into the merits of the dispute which, as we have seen, is contrary to the ethos of Section 34 of the 1996 Act, as has been noted earlier in this judgment.
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as disputes within the arbitration agreement, or which were referred to the decision of the arbitrators as understood by the authorities above. If an arbitrator is alleged to have wandered outside the contract and dealt with matters not allotted to him, this would be a jurisdictional error which could be corrected on the ground of patent illegality, which, as we have seen, would not apply to international commercial arbitrations that are decided under Part II of the 1996 Act. To bring in by the backdoor grounds relatable to Section 28(3) of the 1996 Act to be matters beyond the scope of submission to arbitration under Section 34(2)(a)(iv) would not be permissible as this ground must be construed narrowly and so construed, must refer only to matters which are beyond the arbitration agreement or beyond the reference to the arbitral tribunal45. Given these parameters of challenge, let us now examine the arguments of learned counsel on behalf of the appellant. There can be no doubt that the government guidelines that were referred to and strongly relied upon by the majority award to arrive at the linking factor were never in evidence before the Tribunal. In fact, the Tribunal relies upon the said guidelines by itself and states that they are to be found on a certain website. The ground that is expressly taken in the Section 34 petition by the appellant is as follows:It is pertinent to mention here that no such guidelines of the Ministry of Industrial Development had been filed on record by either of the parties and therefore, the Tribunal had no jurisdiction to rely upon the same while deciding the issue before it. Accordingly, the impugned Award is liable to be set aside46. Learned counsel for the respondent also agreed that these guidelines were never, in fact, disclosed in the arbitration proceedings. This being the case, and given the authorities cited hereinabove, it is clear that the appellant would be directly affected as it would otherwise be unable to present its case, not being allowed to comment on the applicability or interpretation of those guidelines. For example, the appellant could have argued, without prejudice to the argument that linking is de hors the contract, that of the three methods for linking the New Series with the Old Series, either the second or the third method would be preferable to the first method, which the majority award has applied on its own. For this reason, the majority award needs to be set aside under Section 34(2)(a)(iii)47. Insofar as the argument that a new contract had been made by the majority award for the parties, without the consent of the appellant, by applying a formula outside the agreement, as per the Circular dated 15.02.2013, which itself could not be applied without the appellants consent, we are of the view that this ground under Section 34(2)(a)(iv) would not be available, given the authorities discussed in detail by us. It is enough to state that the appellant argued before the arbitral tribunal that a new contract was being made by applying the formula outside what was prescribed, which was answered by the respondent, stating that it would not be possible to apply the old formula without a linking factor which would have to be introduced. Considering that the parties were at issue on this, the dispute as to whether the linking factor applied, thanks to the Circular dated 15.02.2013, is clearly something raised and argued by the parties, and is certainly something which would fall within the arbitration clause or the reference to arbitration that governs the parties. This being the case, this argument would not obtain and Section 34(2)(a)(iv), as a result, would not be attracted48. However, when it comes to the public policy of India argument based upon most basic notions of justice, it is clear that this ground can be attracted only in very exceptional circumstances when the conscience of the Court is shocked by infraction of fundamental notions or principles of justice. It can be seen that the formula that was applied by the agreement continued to be applied till February, 2013 – in short, it is not correct to say that the formula under the agreement could not be applied in view of the Ministrys change in the base indices from 1993-94 to 2004-05. Further, in order to apply a linking factor, a Circular, unilaterally issued by one party, cannot possibly bind the other party to the agreement without that other partys consent. Indeed, the Circular itself expressly stipulates that it cannot apply unless the contractors furnish an undertaking/affidavit that the price adjustment under the Circular is acceptable to them. We have seen how the appellant gave such undertaking only conditionally and without prejudice to its argument that the Circular does not and cannot apply. This being the case, it is clear that the majority award has created a new contract for the parties by applying the said unilateral Circular and by substituting a workable formula under the agreement by another formula de hors the agreement. This being the case, a fundamental principle of justice has been breached, namely, that a unilateral addition or alteration of a contract can never be foisted upon an unwilling party, nor can a party to the agreement be liable to perform a bargain not entered into with the other party. Clearly, such a course of conduct would be contrary to fundamental principles of justice as followed in this country, and shocks the conscience of this Court. However, we repeat that this ground is available only in very exceptional circumstances, such as the fact situation in the present case. Under no circumstance can any Court interfere with an arbitral award on the ground that justice has not been done in the opinion of the Court. That would be an entry into the merits of the dispute which, as we have seen, is contrary to the ethos of Section 34 of the 1996 Act, as has been noted earlier in this judgment.
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S.K.Jain Vs. State Of Haryana | is addressed and what is the implication? The purpose, as we can see, is that though the contract says that supply of additional quota is discretionary, it must be read as obligatory -- at least to the extent of previous years supplies -- by applying the said doctrine. It is submitted that if this is not done, the licensees would suffer monetarily. The other purpose is to say that if the State is not able to so supply, it would be unreasonable on its part to demand the full amount due to it under the contract. In short, the duty to act fairly is sought to be imported into the contract to modify and alter its terms and to create an obligation upon the State which is not there in the contract. We must confess, we are not aware of any such doctrine of fairness or reasonableness. Nor could the learned counsel bring to our notice any decision laying down such a proposition. Doctrine of fairness or the duty to act fairly and reasonably is a doctrine developed in the administrative law field to ensure the rule of law and to prevent failure of justice where the action is administrative in nature. Just as principles of natural justice ensure fair decision where the function is quasi-judicial, the doctrine of fairness is evolved to ensure fair action where the function is administrative. But it can certainly not be invoked to amend, alter or vary the express terms of the contract between the parties. This is so, even if the contract is governed by statutory provisions, i.e., where it is a statutory contract -- or rather more so. It is one thing to say that a contract -- every contract -- must be construed reasonably having regard to its language. But this is not what the licensees say. They seek to create an obligation on the other party to the contract, just because it happens to be the State. They are not prepared to apply the very same rule in converse case, i.e., where the State has abundant supplies and wants the licensees to lift all the stocks. The licensees will undertake no obligation to lift all those stocks even if the State suffers loss. This one-sided obligation, in modification of express terms of the contract, in the name of duty to act fairly, is what we are unable to appreciate. The decisions cited by the learned counsel for the licensees do not support their proposition. In Dwarkadas Marfatia v. Board of Trustees of the Port of Bombay it was held that where a public authority is exempted from the operation of a statute like Rent Control Act, it must be presumed that such exemption from the statute is coupled with the duty to act fairly and reasonably. The decision does not saythat the terms and conditions of contract can be varied, added or altered by importing the said doctrine. It may be noted that though the said principle was affirmed, no relief was given to the appellant in that case. Shrilekha Vidyarthi v. State of U.P. was a case of mass termination of District Government Counsel in the State of U.P. It was a case of termination from a post involving public element. It was a case of non-government servant holding a public office, on account of which it was held to be a matter within the public law field. This decision too does not affirm the principle now canvassed by the learned counsel. We are, therefore, of the opinion that in case of contracts freely entered into with the State, like the present ones, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State), for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the State. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts (which may be statutory in some cases) and the laws relating to contracts. It must be remembered that these contracts are entered into pursuant to public auction, floating of tenders or by negotiation. There is no compulsion on anyone to enter into these contracts. It is voluntary on both sides. There can be no question of the State power being involved in such contracts. It bears repetition to say that the State does not guarantee profit to the licensees in such contracts. There is no warranty against incurring losses. It is a business for the licensees. Whether they make profit or incur loss is no concern of the State. In law, it is entitled to its money under the contract. It is not as if the licensees are going to pay more to the State in case they make substantial profits. We reiterate that what we have said hereinabove is in the context of contracts entered into between the State and its citizens pursuant to public auction, floating of tenders or by negotiation. It is not necessary to say more than this for the purpose of these cases. What would be the position in the case of contracts entered into otherwise than by public auction, floating of tenders or negotiation, we need not express any opinion herein." 15. It has been submitted by learned counsel for the appellant that there should be a cap in the quantum payable in terms of sub-clause (7) of Clause 25-A. This plea is clearly without substance. It is to be noted that it is structured on the basis of the quantum involved. Higher the claim, the higher is the amount of fee chargeable. 16. There is a logic in it. It is the balancing factor to prevent frivolous and inflated claims. If the appellants plea is accepted that there should be a cap in the figure, a claimant who is making higher claim stands on a better pedestal than one who makes a claim of a lesser amount. 17. | 0[ds]A bare perusal of the aforesaid provisions clearly shows that the provision is to operate in the absence of agreement with regard to cost. It cannot be pressed into service to get over sub-clause (7) of Clause 25-A.In addition to the various pleas, the stand taken by the appellant is squarely answered by what has been stated by this Court in Assistant Excise Commissioner and Ors. v. Issac Peter and Ors. (1994 (4) SCC 104 ). At para 26 it has been stated asLearned counsel for respondents then submitted that doctrine of fairness and reasonableness must be read into contracts to which State is a party. It is submitted that the State cannot act unreasonably or unfairly even while acting under a contract involving State power. Now, let us see, what is the purpose for which this argument is addressed and what is the implication? The purpose, as we can see, is that though the contract says that supply of additional quota is discretionary, it must be read as obligatory -- at least to the extent of previous years supplies -- by applying the said doctrine. It is submitted that if this is not done, the licensees would suffer monetarily. The other purpose is to say that if the State is not able to so supply, it would be unreasonable on its part to demand the full amount due to it under the contract. In short, the duty to act fairly is sought to be imported into the contract to modify and alter its terms and to create an obligation upon the State which is not there in the contract. We must confess, we are not aware of any such doctrine of fairness or reasonableness. Nor could the learned counsel bring to our notice any decision laying down such a proposition. Doctrine of fairness or the duty to act fairly and reasonably is a doctrine developed in the administrative law field to ensure the rule of law and to prevent failure of justice where the action is administrative in nature. Just as principles of natural justice ensure fair decision where the function is quasi-judicial, the doctrine of fairness is evolved to ensure fair action where the function is administrative. But it can certainly not be invoked to amend, alter or vary the express terms of the contract between the parties. This is so, even if the contract is governed by statutory provisions, i.e., where it is a statutory contract -- or rather more so. It is one thing to say that a contract -- every contract -- must be construed reasonably having regard to its language. But this is not what the licensees say. They seek to create an obligation on the other party to the contract, just because it happens to be the State. They are not prepared to apply the very same rule in converse case, i.e., where the State has abundant supplies and wants the licensees to lift all the stocks. The licensees will undertake no obligation to lift all those stocks even if the State suffers loss. This one-sided obligation, in modification of express terms of the contract, in the name of duty to act fairly, is what we are unable to appreciate. The decisions cited by the learned counsel for the licensees do not support their proposition. In Dwarkadas Marfatia v. Board of Trustees of the Port of Bombay it was held that where a public authority is exempted from the operation of a statute like Rent Control Act, it must be presumed that such exemption from the statute is coupled with the duty to act fairly and reasonably. The decision does not saythat the terms and conditions of contract can be varied, added or altered by importing the said doctrine. It may be noted that though the said principle was affirmed, no relief was given to the appellant in that case. Shrilekha Vidyarthi v. State of U.P. was a case of mass termination of District Government Counsel in the State of U.P. It was a case of termination from a post involving public element. It was a case of non-government servant holding a public office, on account of which it was held to be a matter within the public law field. This decision too does not affirm the principle now canvassed by the learned counsel. We are, therefore, of the opinion that in case of contracts freely entered into with the State, like the present ones, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State), for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the State. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts (which may be statutory in some cases) and the laws relating to contracts. It must be remembered that these contracts are entered into pursuant to public auction, floating of tenders or by negotiation. There is no compulsion on anyone to enter into these contracts. It is voluntary on both sides. There can be no question of the State power being involved in such contracts. It bears repetition to say that the State does not guarantee profit to the licensees in such contracts. There is no warranty against incurring losses. It is a business for the licensees. Whether they make profit or incur loss is no concern of the State. In law, it is entitled to its money under the contract. It is not as if the licensees are going to pay more to the State in case they make substantial profits. We reiterate that what we have said hereinabove is in the context of contracts entered into between the State and its citizens pursuant to public auction, floating of tenders or by negotiation. It is not necessary to say more than this for the purpose of these cases. What would be the position in the case of contracts entered into otherwise than by public auction, floating of tenders or negotiation, we need not express any opinion herein.It has been submitted by learned counsel for the appellant that there should be a cap in the quantum payable in terms of sub-clause (7) of Clause 25-A. This plea is clearly without substance. It is to be noted that it is structured on the basis of the quantum involved. Higher the claim, the higher is the amount of fee chargeable.There is a logic in it. It is the balancing factor to prevent frivolous and inflated claims. If the appellants plea is accepted that there should be a cap in the figure, a claimant who is making higher claim stands on a better pedestal than one who makes a claim of a lesser amount. | 0 | 3,554 | 1,241 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
is addressed and what is the implication? The purpose, as we can see, is that though the contract says that supply of additional quota is discretionary, it must be read as obligatory -- at least to the extent of previous years supplies -- by applying the said doctrine. It is submitted that if this is not done, the licensees would suffer monetarily. The other purpose is to say that if the State is not able to so supply, it would be unreasonable on its part to demand the full amount due to it under the contract. In short, the duty to act fairly is sought to be imported into the contract to modify and alter its terms and to create an obligation upon the State which is not there in the contract. We must confess, we are not aware of any such doctrine of fairness or reasonableness. Nor could the learned counsel bring to our notice any decision laying down such a proposition. Doctrine of fairness or the duty to act fairly and reasonably is a doctrine developed in the administrative law field to ensure the rule of law and to prevent failure of justice where the action is administrative in nature. Just as principles of natural justice ensure fair decision where the function is quasi-judicial, the doctrine of fairness is evolved to ensure fair action where the function is administrative. But it can certainly not be invoked to amend, alter or vary the express terms of the contract between the parties. This is so, even if the contract is governed by statutory provisions, i.e., where it is a statutory contract -- or rather more so. It is one thing to say that a contract -- every contract -- must be construed reasonably having regard to its language. But this is not what the licensees say. They seek to create an obligation on the other party to the contract, just because it happens to be the State. They are not prepared to apply the very same rule in converse case, i.e., where the State has abundant supplies and wants the licensees to lift all the stocks. The licensees will undertake no obligation to lift all those stocks even if the State suffers loss. This one-sided obligation, in modification of express terms of the contract, in the name of duty to act fairly, is what we are unable to appreciate. The decisions cited by the learned counsel for the licensees do not support their proposition. In Dwarkadas Marfatia v. Board of Trustees of the Port of Bombay it was held that where a public authority is exempted from the operation of a statute like Rent Control Act, it must be presumed that such exemption from the statute is coupled with the duty to act fairly and reasonably. The decision does not saythat the terms and conditions of contract can be varied, added or altered by importing the said doctrine. It may be noted that though the said principle was affirmed, no relief was given to the appellant in that case. Shrilekha Vidyarthi v. State of U.P. was a case of mass termination of District Government Counsel in the State of U.P. It was a case of termination from a post involving public element. It was a case of non-government servant holding a public office, on account of which it was held to be a matter within the public law field. This decision too does not affirm the principle now canvassed by the learned counsel. We are, therefore, of the opinion that in case of contracts freely entered into with the State, like the present ones, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State), for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the State. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts (which may be statutory in some cases) and the laws relating to contracts. It must be remembered that these contracts are entered into pursuant to public auction, floating of tenders or by negotiation. There is no compulsion on anyone to enter into these contracts. It is voluntary on both sides. There can be no question of the State power being involved in such contracts. It bears repetition to say that the State does not guarantee profit to the licensees in such contracts. There is no warranty against incurring losses. It is a business for the licensees. Whether they make profit or incur loss is no concern of the State. In law, it is entitled to its money under the contract. It is not as if the licensees are going to pay more to the State in case they make substantial profits. We reiterate that what we have said hereinabove is in the context of contracts entered into between the State and its citizens pursuant to public auction, floating of tenders or by negotiation. It is not necessary to say more than this for the purpose of these cases. What would be the position in the case of contracts entered into otherwise than by public auction, floating of tenders or negotiation, we need not express any opinion herein." 15. It has been submitted by learned counsel for the appellant that there should be a cap in the quantum payable in terms of sub-clause (7) of Clause 25-A. This plea is clearly without substance. It is to be noted that it is structured on the basis of the quantum involved. Higher the claim, the higher is the amount of fee chargeable. 16. There is a logic in it. It is the balancing factor to prevent frivolous and inflated claims. If the appellants plea is accepted that there should be a cap in the figure, a claimant who is making higher claim stands on a better pedestal than one who makes a claim of a lesser amount. 17.
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purpose for which this argument is addressed and what is the implication? The purpose, as we can see, is that though the contract says that supply of additional quota is discretionary, it must be read as obligatory -- at least to the extent of previous years supplies -- by applying the said doctrine. It is submitted that if this is not done, the licensees would suffer monetarily. The other purpose is to say that if the State is not able to so supply, it would be unreasonable on its part to demand the full amount due to it under the contract. In short, the duty to act fairly is sought to be imported into the contract to modify and alter its terms and to create an obligation upon the State which is not there in the contract. We must confess, we are not aware of any such doctrine of fairness or reasonableness. Nor could the learned counsel bring to our notice any decision laying down such a proposition. Doctrine of fairness or the duty to act fairly and reasonably is a doctrine developed in the administrative law field to ensure the rule of law and to prevent failure of justice where the action is administrative in nature. Just as principles of natural justice ensure fair decision where the function is quasi-judicial, the doctrine of fairness is evolved to ensure fair action where the function is administrative. But it can certainly not be invoked to amend, alter or vary the express terms of the contract between the parties. This is so, even if the contract is governed by statutory provisions, i.e., where it is a statutory contract -- or rather more so. It is one thing to say that a contract -- every contract -- must be construed reasonably having regard to its language. But this is not what the licensees say. They seek to create an obligation on the other party to the contract, just because it happens to be the State. They are not prepared to apply the very same rule in converse case, i.e., where the State has abundant supplies and wants the licensees to lift all the stocks. The licensees will undertake no obligation to lift all those stocks even if the State suffers loss. This one-sided obligation, in modification of express terms of the contract, in the name of duty to act fairly, is what we are unable to appreciate. The decisions cited by the learned counsel for the licensees do not support their proposition. In Dwarkadas Marfatia v. Board of Trustees of the Port of Bombay it was held that where a public authority is exempted from the operation of a statute like Rent Control Act, it must be presumed that such exemption from the statute is coupled with the duty to act fairly and reasonably. The decision does not saythat the terms and conditions of contract can be varied, added or altered by importing the said doctrine. It may be noted that though the said principle was affirmed, no relief was given to the appellant in that case. Shrilekha Vidyarthi v. State of U.P. was a case of mass termination of District Government Counsel in the State of U.P. It was a case of termination from a post involving public element. It was a case of non-government servant holding a public office, on account of which it was held to be a matter within the public law field. This decision too does not affirm the principle now canvassed by the learned counsel. We are, therefore, of the opinion that in case of contracts freely entered into with the State, like the present ones, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State), for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the State. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts (which may be statutory in some cases) and the laws relating to contracts. It must be remembered that these contracts are entered into pursuant to public auction, floating of tenders or by negotiation. There is no compulsion on anyone to enter into these contracts. It is voluntary on both sides. There can be no question of the State power being involved in such contracts. It bears repetition to say that the State does not guarantee profit to the licensees in such contracts. There is no warranty against incurring losses. It is a business for the licensees. Whether they make profit or incur loss is no concern of the State. In law, it is entitled to its money under the contract. It is not as if the licensees are going to pay more to the State in case they make substantial profits. We reiterate that what we have said hereinabove is in the context of contracts entered into between the State and its citizens pursuant to public auction, floating of tenders or by negotiation. It is not necessary to say more than this for the purpose of these cases. What would be the position in the case of contracts entered into otherwise than by public auction, floating of tenders or negotiation, we need not express any opinion herein.It has been submitted by learned counsel for the appellant that there should be a cap in the quantum payable in terms of sub-clause (7) of Clause 25-A. This plea is clearly without substance. It is to be noted that it is structured on the basis of the quantum involved. Higher the claim, the higher is the amount of fee chargeable.There is a logic in it. It is the balancing factor to prevent frivolous and inflated claims. If the appellants plea is accepted that there should be a cap in the figure, a claimant who is making higher claim stands on a better pedestal than one who makes a claim of a lesser amount.
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AMEET LALCHAND SHAH Vs. RISHABH ENTERPRISES | by one of the parties and on that basis that party wants to wriggle out of that arbitration agreement, a strict and meticulous inquiry into the allegations of fraud is needed and only when the Court is satisfied that the allegations are of serious and complicated nature that it would be more appropriate for the Court to deal with the subject- matter rather than relegating the parties to arbitration, then alone such an application under Section 8 should be rejected. 32. While concurring with Justice Sikri, Justice D.Y. Chandrachud pointed out that the duty of the Court is to impartsense of business efficacy to the commercial transactions pointing out that mere allegations of fraud were not sufficient to decline to refer the parties to arbitration. In para (48) of Ayyasamy case, Justice D.Y. Chandrachud held as under:- 48. The basic principle which must guide judicial decision- making is that arbitration is essentially a voluntary assumption of an obligation by contracting parties to resolve their disputes through a private tribunal. The intent of the parties is expressed in the terms of their agreement. Where commercial entities and persons of business enter into such dealings, they do so with a knowledge of the efficacy of the arbitral process. The commercial understanding is reflected in the terms of the agreement between the parties. The duty of the court is to impart to that commercial understanding a sense of business efficacy. (Underlining added) 33. When we apply the aforesaid principles to the facts of the present case, as discussed earlier, both parties have consciously proceeded with the commercial transactions to commission the Photovoltaic Solar Plant at Dongri, Raksa, District Jhansi, U.P. The first respondent has proceeded to procure the materials, entered into agreement with Juwi India for engineering, installation and commissioning and the sale and purchase agreement with Astonfield, were all the conscious steps taken in the commercial understanding to commission the Solar Plant at Dongri, Raksa, District Jhansi, U.P. Even though Juwi India and Astonfield are not parties to the main agreement - Equipment Lease Agreement (14.03.2012), all the agreements/contracts contain clauses referring to the main agreement. It is the duty of the Court to impart the commercial understanding with asense of business efficacyand not by the mere averments made in the plaint. The High Court was not right in refusing to refer the parties on the ground of the allegations of fraud levelled in the plaint. 34. It is only where serious questions of fraud are involved, the arbitration can be refused. In this case, as contended by the appellants there were no serious allegations of fraud; the allegations levelled against Astonfield is that appellant no.1 - Ameet Lalchand Shah misrepresented by inducing the respondents to pay higher price for the purchase of the equipments. There is, of course, a criminal case registered against the appellants in FIR No.30 of 2015 dated 05.03.2015 before the Economic Offences Wing, Delhi. The appellant no.1 – Ameet Lalchand Shah has filed Criminal Writ Petition No.619 of 2016 before the High Court of Delhi for quashing the said FIR. The said writ petition is stated to be pending and therefore, we do not propose to express any views in this regard, lest, it would prejudice the parties. Suffice to say that the allegations cannot be said to be so serious to refuse to refer the parties to arbitration. In any event, the Arbitrator appointed can very well examine the allegations regarding fraud. 35. Main agreement - Equipment Lease Agreement (14.03.2012) for leasing and commissioning of Solar Plant at Dongri, Raksa, District Jhansi, Uttar Pradesh contains arbitration clause (Clause 29). As discussed earlier, other three agreements - two agreements between Rishabh and Juwi India (01.02.2012) and Sale and Purchase Agreement (05.03.2012) between Rishabh and Astonfield are integrally connected with the commercial understanding of commissioning the Solar Project at Dongri, Raksa, District Jhansi, Uttar Pradesh and to resolve the dispute between the parties, they are to be referred to arbitration. The order of the High Court declining to refer the parties to arbitration cannot be sustained and is liable to be set aside. The four agreements namely:- (i) Equipment and Material Supply Contract (01.02.2012) between Rishabh and Juwi India; (ii) Engineering, Installation and Commissioning Contract (01.02.2012) between Rishabh and Juwi India; (iii) Sale and Purchase Agreement (05.03.2012) between Rishabh and Astonfield; and (iv) Equipment Lease Agreement (14.03.2012) between Rishabh and Dante Energy and the parties thereon are referred to arbitration. 36. As per the terms of Equipment Lease Agreement (14.03.2012), appellant No.3 - Dante Energy has to pay lease rentals of Rs.13,67,500/- for the month of March, 2012 and with effect from April, 2012 to pay lease rentals of Rs.28,26,000/- per month for a period of fifteen years. Learned Senior Counsel for respondents, Mr. Sibal has submitted that appellant No.3 - Dante Energy has not paid the rentals as per the terms and conditions of Equipment Lease Agreement. Mr. Sibal has also drawn our attention that Astonfield Solar Rajasthan Pvt. Ltd. has transferred 99.99% of its shares to ARRL (Mauritius) Ltd. (Holding Company) and Ameet Lalchand Shah has only one share (0.01%). Our attention was also drawn to Astonfield Solar Gujarat Pvt. Ltd., which has also transferred 99.99% of its shares to ARRL (Mauritius) Ltd. (Holding Company) and that Ameet Lalchand Shah has only one share (0.01%). It was also submitted that the appellant No.1 - Ameet Lalchand Shah was subsequently removed from the Board of Directors of Astonfield Solar Gujarat Pvt. Ltd. by the shareholders by EGM dated 17.12.2016. We do not propose to go into the merits of this contention; however, keeping in view that Astonfield has transferred its shareholdings qua Rajasthan and Gujarat Solar Power units, in our view, the interest of the respondents is to be protected till the matter is resolved by the arbitrator by directing the appellants to pay the arrears of lease rent and also to pay the future lease rent for the equipments at the rate of Rs.28,26,000/- per month. | 1[ds]A careful perusal of all the four agreements that is:- (i) Equipment and Material Supply Contract; (ii) Engineering, Installation and Commissioning Contract; (iii) Sale and Purchase Agreement; and (iv) Equipment Lease Agreement shows that all the four agreements were for the single purpose to commission 2 MWp Photovoltaic Solar Plant at Dongri, Raksa, District Jhansi, Uttar Pradesh to be purchased by Rishabh and leasing the equipments to Dante Energy.13. The averments in the plaint also prima facie indicate that all the four agreements are inter-connected and that appellant No.1 – Ameet Lalchand Shah is stated to be the promoter and controlling man of both Astonfield as well as Dante Energy.14. The clauses in the Equipment and Material Supply Contract (01.02.2012) between Rishabh and Juwi India clearly indicate that the Rishabh has entered into Lease Agreement with Dante Energy and that the Rishabh proposes to source Photovoltaic products/panels etc. and similar Solar Power generating equipments for onward lease of those goods to Dante Energy. The following clauses in the said Equipment and Material Supply Contract would clearly establish the link of Equipment and Material Supply Contract with the main Lease Agreement with Dante Energy:-This Equipment and Material Supply contract is between M/s Rishabh Enterprises………….. (the Client) AND Juwi India Renewable Energies Private Limited ……..(the Supplier) Whereas:- A. The Client (Rishabh) is entering into Lease Agreement with M/s Dante Energy Pvt. Ltd. (Lessee) and the Lessee (Dante Energy) has necessary authorizations to develop, own, operate and commercially exploit a 2 MWp thin-film photovoltaic solar plant at Dongri, Raksa, District-Jhansi, UP (Plant Site), transmission line from power plant to the Grid Substation, bay extension work at the Grid Substation, including all of the infrastructure and relevant installations required to connect the electricity- producing equipment to the distribution/transmission grid at the Grid Substation in UP, India (the Facility). B. The Client (Rishabh) proposes to source Photovoltaic Products/Panels, Inverters, Transformers and similar solar power generating equipments, etc. for sale of goods to the Client (Rishabh) and the Client (Rishabh) will onward lease these goods to M/s Dante Energy Pvt. Ltd. (Lessee). C. The Client (Rishabh) wishes to engage the Supplier (Juwi India) for supply of Equipment (as defined below) and materials with respect to the development of the Solar Park. D. The M/s Dante Energy Private Limited (Lessee) will have the right to inspect the respective goods to be sourced by the Client (Rishabh) and based on the confirmation from the M/s Dante Energy Private Limited (Lessee), the respective goods will be purchased by the Client (Rishabh) for onward sale to M/s Dante Energy Private Limited (Lessee) and will be consigned to the project site. E. The Supplier (Juwi India) is aggregable to supply the Equipment and Materials to the Client (Rishabh) in accordance with the terms of this Contract.15. Likewise, clauses in the agreement for Engineering, Installation and Commissioning Contract between Rishabh and Juwi India (01.02.2012) also clearly indicate that the agreement was entered into for the purpose of commissioning Photovoltaic Solar Plant at Dongri, Raksa, District Jhansi, Uttar Pradesh. Clause (A) of the agreement that the Rishabh has entered into Equipment Lease Agreement with M/s Dante Energy (Lessee) reiterates that the second agreement with Juwi India for engineering, installation and commissioning is integrally connected with Equipment Lease Agreement (14.03.2012).The above clauses in the very commencement of the agreement with Juwi India dated 01.02.2012 clearly state that the agreement itself was for the purpose of commissioning Photovoltaic Solar Plant at Dongri, Raksa, District Jhansi, Uttar Pradesh for which Dante Energy (Lessee) has necessary authorizations. The above quoted clauses in the Engineering, Installation and Commissioning Contract (01.02.2012) establish that this agreement is inter-connected with Equipment Lease Agreement (14.03.2012) with Dante Energy.16. Equally, the Sale and Purchase Agreement (05.03.2012) between M/s Astonfield and Rishabh is also for the purpose of onward leasing of goods to Dante EnergyThough the Sale and Purchase Agreement (05.03.2012) does not have any arbitration clause, by the above clauses, it is clearly linked with the main agreement - Equipment Lease Agreement (14.03.2012). Sale and Purchase Agreement was entered into between Astonfield and Rishabh only for the purpose of onward transmission of leasing of the goods by Rishabh to Dante Energy. There is no merit in the contention that the Sale and Purchase Agreement is not connected with the Equipment Lease Agreement with Dante Energy.17. Equipment Lease Agreement (14.03.2012) between Rishabh and Dante Energy is only a follow-up of all the above three agreements as is clear from the various clauses in the Equipment Lease Agreement.The above extracted clauses clearly demonstrate that all the four agreements are inter-connected. Clause (v) in Article 4 in the Equipment Lease Agreement that delivery and installation shall be at the cost and risk of Rishabh (Lessor) is clearly linked with the Engineering, Installation and Commissioning Contract between Rishabh and Juwi India.21. In a case like the present one, though there are different agreements involving several parties, as discussed above, it is a single commercial project namely operating a 2 MWp Photovoltaic Solar Plant at Dongri, Raksa, District Jhansi, Uttar Pradesh. Commissioning of the Solar Plant, which is the commercial understanding between the parties and it has been effected through several agreements. The agreement – Equipment Lease Agreement (14.03.2012) for commissioning of the Solar Plant is the principal/main agreement. The two agreements of Rishabh with Juwi India:- (i) Equipment and Material Supply Contract (01.02.2012); and (ii) Engineering, Installation and Commissioning Contract (01.02.2012) and the Rishabhs Sale and Purchase Agreement with Astonfield (05.03.2012) are ancillary agreements which led to the main purpose of commissioning the Photovoltaic Solar Plant at Dongri, Raksa, District Jhansi, Uttar Pradesh by Dante Energy (Lessee). Even though, the Sale and Purchase Agreement (05.03.2012) between Rishabh and Astonfield does not contain arbitration clause, it is integrally connected with the commissioning of the Solar Plant at Dongri, Raksa, District Jhansi, U.P. by Dante Energy. Juwi India, even though, not a party to the suit and even though, Astonfield and appellant No.1 – Ameet Lalchand Shah are not signatories to the main agreement viz. Equipment Lease Agreement (14.03.2012), it is a commercial transaction integrally connected with commissioning of Photovoltaic Solar Plant at Dongri, Raksa, District Jhansi, U.P . Be it noted, as per clause(v) of Article 4, parties have agreed that the entire risk, cost of the delivery and installation shall be at the cost of the Rishabh (Lessor). Here again, we may recapitulate that engineering and installation is to be done by Juwi India. What is evident from the facts and intention of the parties is to facilitate procurement of equipments, sale and purchase of equipments, installation and leasing out the equipments to Dante Energy. The dispute between the parties to various agreements could be resolved only by referring all the four agreements and the parties thereon to arbitration.22. Parties to the agreements namely Rishabh and Juwi India:- (i) Equipment and Material Supply Agreement; and (ii) Engineering, Installation and Commissioning Contract and the parties to Sale and Purchase Agreement between Rishabh and Astonfield are one and the same as that of the parties in the main agreement namely Equipment Lease Agreement (14.03.2012). All the four agreements are inter- connected. This is a case where several parties are involved in a single commercial project (Solar Plant at Dongri) executed through several agreements/contracts. In such a case, all the parties can be covered by the arbitration clause in the main agreement i.e. Equipment Lease Agreement (14.03.2012)23. Since all the three agreements of Rishabh with Juwi India and Astonfield had the purpose of commissioning the Photovoltaic Solar Plant project at Dongri, Raksa, District Jhansi, Uttar Pradesh, the High Court was not right in saying that the Sale and Purchase Agreement (05.03.2012) is the main agreement. The High Court, in our view, erred in not keeping in view the various clauses in all the three agreements which make them as an integral part of the principal agreement namely Equipment Lease Agreement (14.03.2012) and the impugned order of the High Court cannot be sustained. Amendment to Section 8 of the Arbitration and Conciliation Act, 199625.Principally four amendments to Section 8(1) have been introduced by the 2015 Amendments - (i) the relevant party that is entitled to apply seeking reference to arbitration has been clarified/amplified to include persons claiming through or under such a party to the arbitration agreement; (ii) scope of examination by the judicial authority is restricted to a finding whether no valid arbitration agreement exists and the nature of examination by the judicial authority is clarified to be on a prima facie basis; (iii) the cut-off date by which an application under Section 8 is to be presented has been defined to mean the date of submitting the first statement on the substance of the dispute; and (iv) the amendments are expressed to apply notwithstanding any prior judicial precedent. The proviso to Section 8(2) has been added to allow a party that does not possess the original or certified copy of the arbitration agreement on account of it being retained by the other party, to nevertheless apply under Section 8 seeking reference, and call upon the other party to produce the same.(Ref: Justice R.S. Bachawats Law of Arbitration and Conciliation, Sixth Edition, Vol. I (Sections 1 to 34) at page 695 published by LexisNexis).27. The language of amendment to Section 8 of the Act is clear that the amendment to Section 8(1) of the Act would apply notwithstanding any prayer, judgment, decree or order of the Supreme Court or any other Court.31. Under the Act, an arbitration agreement means an agreement which is enforceable in law and the jurisdiction of the arbitrator is on the basis of an arbitration clause contained in the arbitration agreement. However, in a case where the parties alleged that the arbitration agreement is vitiated on account of fraud, the Court may refuse to refer the parties to arbitration.In Ayyasamy case, this Court held that mere allegation of fraud is not a ground to nullify the effect of arbitration agreement between the parties and arbitration clause need not be avoided and parties can be relegated to arbitration where merely simple allegations of fraud touched upon internal affairs of parties is levelled. Justice A.K. Sikri observed that it is only in those cases where the Court finds that there are serious allegations of fraud which make a virtual case of criminal offence and where there are complicated allegations of fraud then it becomes necessary that such complex issues can be decided only by the civil court on the appreciation of evidence that needs to be produced. In para (25) of Ayyasamy case, Justice Sikri held as under:-25…..Therefore, the inquiry of the Court, while dealing with an application under Section 8 of the Act, should be on the aforesaid aspect viz. whether the nature of dispute is such that it cannot be referred to arbitration, even if there is an arbitration agreement between the parties. When the case of fraud is set up by one of the parties and on that basis that party wants to wriggle out of that arbitration agreement, a strict and meticulous inquiry into the allegations of fraud is needed and only when the Court is satisfied that the allegations are of serious and complicated nature that it would be more appropriate for the Court to deal with the subject- matter rather than relegating the parties to arbitration, then alone such an application under Section 8 should be rejected.32. While concurring with Justice Sikri, Justice D.Y. Chandrachud pointed out that the duty of the Court is to impartsense of businesso the commercial transactions pointing out that mere allegations of fraud were not sufficient to decline to refer the parties to arbitration. In para (48) of Ayyasamy case, Justice D.Y. Chandrachud held as under:-48. The basic principle which must guide judicial decision- making is that arbitration is essentially a voluntary assumption of an obligation by contracting parties to resolve their disputes through a private tribunal. The intent of the parties is expressed in the terms of their agreement. Where commercial entities and persons of business enter into such dealings, they do so with a knowledge of the efficacy of the arbitral process. The commercial understanding is reflected in the terms of the agreement between the parties. The duty of the court is to impart to that commercial understanding a sense of business efficacy.33. When we apply the aforesaid principles to the facts of the present case, as discussed earlier, both parties have consciously proceeded with the commercial transactions to commission the Photovoltaic Solar Plant at Dongri, Raksa, District Jhansi, U.P. The first respondent has proceeded to procure the materials, entered into agreement with Juwi India for engineering, installation and commissioning and the sale and purchase agreement with Astonfield, were all the conscious steps taken in the commercial understanding to commission the Solar Plant at Dongri, Raksa, District Jhansi, U.P. Even though Juwi India and Astonfield are not parties to the main agreement - Equipment Lease Agreement (14.03.2012), all the agreements/contracts contain clauses referring to the main agreement. It is the duty of the Court to impart the commercial understanding with asense of business efficacyand not by the mere averments made in the plaint. The High Court was not right in refusing to refer the parties on the ground of the allegations of fraud levelled in the plaint.34. It is only where serious questions of fraud are involved, the arbitration can be refused. In this case, as contended by the appellants there were no serious allegations of fraud; the allegations levelled against Astonfield is that appellant no.1 - Ameet Lalchand Shah misrepresented by inducing the respondents to pay higher price for the purchase of the equipments. There is, of course, a criminal case registered against the appellants in FIR No.30 of 2015 dated 05.03.2015 before the Economic Offences Wing, Delhi. The appellant no.1 – Ameet Lalchand Shah has filed Criminal Writ Petition No.619 of 2016 before the High Court of Delhi for quashing the said FIR. The said writ petition is stated to be pending and therefore, we do not propose to express any views in this regard, lest, it would prejudice the parties. Suffice to say that the allegations cannot be said to be so serious to refuse to refer the parties to arbitration. In any event, the Arbitrator appointed can very well examine the allegations regarding fraud35. Main agreement - Equipment Lease Agreement (14.03.2012) for leasing and commissioning of Solar Plant at Dongri, Raksa, District Jhansi, Uttar Pradesh contains arbitration clause (Clause 29). As discussed earlier, other three agreements - two agreements between Rishabh and Juwi India (01.02.2012) and Sale and Purchase Agreement (05.03.2012) between Rishabh and Astonfield are integrally connected with the commercial understanding of commissioning the Solar Project at Dongri, Raksa, District Jhansi, Uttar Pradesh and to resolve the dispute between the parties, they are to be referred to arbitration. The order of the High Court declining to refer the parties to arbitration cannot be sustained and is liable to be set aside. The four agreements namely:-(i) Equipment and Material Supply Contract (01.02.2012) between Rishabh and Juwi India; (ii) Engineering, Installation and Commissioning Contract (01.02.2012) between Rishabh and Juwi India;(iii) Sale and Purchase Agreement (05.03.2012) between Rishabh and Astonfield; and(iv) Equipment Lease Agreement (14.03.2012) between Rishabh and Dante Energy and the parties thereon are referred to arbitration.36. As per the terms of Equipment Lease Agreement (14.03.2012), appellant No.3 - Dante Energy has to pay lease rentals of Rs.13,67,500/- for the month of March, 2012 and with effect from April, 2012 to pay lease rentals of Rs.28,26,000/- per month for a period of fifteen years.We do not propose to go into the merits of this contention; however, keeping in view that Astonfield has transferred its shareholdings qua Rajasthan and Gujarat Solar Power units, in our view, the interest of the respondents is to be protected till the matter is resolved by the arbitrator by directing the appellants to pay the arrears of lease rent and also to pay the future lease rent for the equipments at the rate of Rs.28,26,000/- per month. | 1 | 9,235 | 3,101 | ### Instruction:
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by one of the parties and on that basis that party wants to wriggle out of that arbitration agreement, a strict and meticulous inquiry into the allegations of fraud is needed and only when the Court is satisfied that the allegations are of serious and complicated nature that it would be more appropriate for the Court to deal with the subject- matter rather than relegating the parties to arbitration, then alone such an application under Section 8 should be rejected. 32. While concurring with Justice Sikri, Justice D.Y. Chandrachud pointed out that the duty of the Court is to impartsense of business efficacy to the commercial transactions pointing out that mere allegations of fraud were not sufficient to decline to refer the parties to arbitration. In para (48) of Ayyasamy case, Justice D.Y. Chandrachud held as under:- 48. The basic principle which must guide judicial decision- making is that arbitration is essentially a voluntary assumption of an obligation by contracting parties to resolve their disputes through a private tribunal. The intent of the parties is expressed in the terms of their agreement. Where commercial entities and persons of business enter into such dealings, they do so with a knowledge of the efficacy of the arbitral process. The commercial understanding is reflected in the terms of the agreement between the parties. The duty of the court is to impart to that commercial understanding a sense of business efficacy. (Underlining added) 33. When we apply the aforesaid principles to the facts of the present case, as discussed earlier, both parties have consciously proceeded with the commercial transactions to commission the Photovoltaic Solar Plant at Dongri, Raksa, District Jhansi, U.P. The first respondent has proceeded to procure the materials, entered into agreement with Juwi India for engineering, installation and commissioning and the sale and purchase agreement with Astonfield, were all the conscious steps taken in the commercial understanding to commission the Solar Plant at Dongri, Raksa, District Jhansi, U.P. Even though Juwi India and Astonfield are not parties to the main agreement - Equipment Lease Agreement (14.03.2012), all the agreements/contracts contain clauses referring to the main agreement. It is the duty of the Court to impart the commercial understanding with asense of business efficacyand not by the mere averments made in the plaint. The High Court was not right in refusing to refer the parties on the ground of the allegations of fraud levelled in the plaint. 34. It is only where serious questions of fraud are involved, the arbitration can be refused. In this case, as contended by the appellants there were no serious allegations of fraud; the allegations levelled against Astonfield is that appellant no.1 - Ameet Lalchand Shah misrepresented by inducing the respondents to pay higher price for the purchase of the equipments. There is, of course, a criminal case registered against the appellants in FIR No.30 of 2015 dated 05.03.2015 before the Economic Offences Wing, Delhi. The appellant no.1 – Ameet Lalchand Shah has filed Criminal Writ Petition No.619 of 2016 before the High Court of Delhi for quashing the said FIR. The said writ petition is stated to be pending and therefore, we do not propose to express any views in this regard, lest, it would prejudice the parties. Suffice to say that the allegations cannot be said to be so serious to refuse to refer the parties to arbitration. In any event, the Arbitrator appointed can very well examine the allegations regarding fraud. 35. Main agreement - Equipment Lease Agreement (14.03.2012) for leasing and commissioning of Solar Plant at Dongri, Raksa, District Jhansi, Uttar Pradesh contains arbitration clause (Clause 29). As discussed earlier, other three agreements - two agreements between Rishabh and Juwi India (01.02.2012) and Sale and Purchase Agreement (05.03.2012) between Rishabh and Astonfield are integrally connected with the commercial understanding of commissioning the Solar Project at Dongri, Raksa, District Jhansi, Uttar Pradesh and to resolve the dispute between the parties, they are to be referred to arbitration. The order of the High Court declining to refer the parties to arbitration cannot be sustained and is liable to be set aside. The four agreements namely:- (i) Equipment and Material Supply Contract (01.02.2012) between Rishabh and Juwi India; (ii) Engineering, Installation and Commissioning Contract (01.02.2012) between Rishabh and Juwi India; (iii) Sale and Purchase Agreement (05.03.2012) between Rishabh and Astonfield; and (iv) Equipment Lease Agreement (14.03.2012) between Rishabh and Dante Energy and the parties thereon are referred to arbitration. 36. As per the terms of Equipment Lease Agreement (14.03.2012), appellant No.3 - Dante Energy has to pay lease rentals of Rs.13,67,500/- for the month of March, 2012 and with effect from April, 2012 to pay lease rentals of Rs.28,26,000/- per month for a period of fifteen years. Learned Senior Counsel for respondents, Mr. Sibal has submitted that appellant No.3 - Dante Energy has not paid the rentals as per the terms and conditions of Equipment Lease Agreement. Mr. Sibal has also drawn our attention that Astonfield Solar Rajasthan Pvt. Ltd. has transferred 99.99% of its shares to ARRL (Mauritius) Ltd. (Holding Company) and Ameet Lalchand Shah has only one share (0.01%). Our attention was also drawn to Astonfield Solar Gujarat Pvt. Ltd., which has also transferred 99.99% of its shares to ARRL (Mauritius) Ltd. (Holding Company) and that Ameet Lalchand Shah has only one share (0.01%). It was also submitted that the appellant No.1 - Ameet Lalchand Shah was subsequently removed from the Board of Directors of Astonfield Solar Gujarat Pvt. Ltd. by the shareholders by EGM dated 17.12.2016. We do not propose to go into the merits of this contention; however, keeping in view that Astonfield has transferred its shareholdings qua Rajasthan and Gujarat Solar Power units, in our view, the interest of the respondents is to be protected till the matter is resolved by the arbitrator by directing the appellants to pay the arrears of lease rent and also to pay the future lease rent for the equipments at the rate of Rs.28,26,000/- per month.
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to arbitration where merely simple allegations of fraud touched upon internal affairs of parties is levelled. Justice A.K. Sikri observed that it is only in those cases where the Court finds that there are serious allegations of fraud which make a virtual case of criminal offence and where there are complicated allegations of fraud then it becomes necessary that such complex issues can be decided only by the civil court on the appreciation of evidence that needs to be produced. In para (25) of Ayyasamy case, Justice Sikri held as under:-25…..Therefore, the inquiry of the Court, while dealing with an application under Section 8 of the Act, should be on the aforesaid aspect viz. whether the nature of dispute is such that it cannot be referred to arbitration, even if there is an arbitration agreement between the parties. When the case of fraud is set up by one of the parties and on that basis that party wants to wriggle out of that arbitration agreement, a strict and meticulous inquiry into the allegations of fraud is needed and only when the Court is satisfied that the allegations are of serious and complicated nature that it would be more appropriate for the Court to deal with the subject- matter rather than relegating the parties to arbitration, then alone such an application under Section 8 should be rejected.32. While concurring with Justice Sikri, Justice D.Y. Chandrachud pointed out that the duty of the Court is to impartsense of businesso the commercial transactions pointing out that mere allegations of fraud were not sufficient to decline to refer the parties to arbitration. In para (48) of Ayyasamy case, Justice D.Y. Chandrachud held as under:-48. The basic principle which must guide judicial decision- making is that arbitration is essentially a voluntary assumption of an obligation by contracting parties to resolve their disputes through a private tribunal. The intent of the parties is expressed in the terms of their agreement. Where commercial entities and persons of business enter into such dealings, they do so with a knowledge of the efficacy of the arbitral process. The commercial understanding is reflected in the terms of the agreement between the parties. The duty of the court is to impart to that commercial understanding a sense of business efficacy.33. When we apply the aforesaid principles to the facts of the present case, as discussed earlier, both parties have consciously proceeded with the commercial transactions to commission the Photovoltaic Solar Plant at Dongri, Raksa, District Jhansi, U.P. The first respondent has proceeded to procure the materials, entered into agreement with Juwi India for engineering, installation and commissioning and the sale and purchase agreement with Astonfield, were all the conscious steps taken in the commercial understanding to commission the Solar Plant at Dongri, Raksa, District Jhansi, U.P. Even though Juwi India and Astonfield are not parties to the main agreement - Equipment Lease Agreement (14.03.2012), all the agreements/contracts contain clauses referring to the main agreement. It is the duty of the Court to impart the commercial understanding with asense of business efficacyand not by the mere averments made in the plaint. The High Court was not right in refusing to refer the parties on the ground of the allegations of fraud levelled in the plaint.34. It is only where serious questions of fraud are involved, the arbitration can be refused. In this case, as contended by the appellants there were no serious allegations of fraud; the allegations levelled against Astonfield is that appellant no.1 - Ameet Lalchand Shah misrepresented by inducing the respondents to pay higher price for the purchase of the equipments. There is, of course, a criminal case registered against the appellants in FIR No.30 of 2015 dated 05.03.2015 before the Economic Offences Wing, Delhi. The appellant no.1 – Ameet Lalchand Shah has filed Criminal Writ Petition No.619 of 2016 before the High Court of Delhi for quashing the said FIR. The said writ petition is stated to be pending and therefore, we do not propose to express any views in this regard, lest, it would prejudice the parties. Suffice to say that the allegations cannot be said to be so serious to refuse to refer the parties to arbitration. In any event, the Arbitrator appointed can very well examine the allegations regarding fraud35. Main agreement - Equipment Lease Agreement (14.03.2012) for leasing and commissioning of Solar Plant at Dongri, Raksa, District Jhansi, Uttar Pradesh contains arbitration clause (Clause 29). As discussed earlier, other three agreements - two agreements between Rishabh and Juwi India (01.02.2012) and Sale and Purchase Agreement (05.03.2012) between Rishabh and Astonfield are integrally connected with the commercial understanding of commissioning the Solar Project at Dongri, Raksa, District Jhansi, Uttar Pradesh and to resolve the dispute between the parties, they are to be referred to arbitration. The order of the High Court declining to refer the parties to arbitration cannot be sustained and is liable to be set aside. The four agreements namely:-(i) Equipment and Material Supply Contract (01.02.2012) between Rishabh and Juwi India; (ii) Engineering, Installation and Commissioning Contract (01.02.2012) between Rishabh and Juwi India;(iii) Sale and Purchase Agreement (05.03.2012) between Rishabh and Astonfield; and(iv) Equipment Lease Agreement (14.03.2012) between Rishabh and Dante Energy and the parties thereon are referred to arbitration.36. As per the terms of Equipment Lease Agreement (14.03.2012), appellant No.3 - Dante Energy has to pay lease rentals of Rs.13,67,500/- for the month of March, 2012 and with effect from April, 2012 to pay lease rentals of Rs.28,26,000/- per month for a period of fifteen years.We do not propose to go into the merits of this contention; however, keeping in view that Astonfield has transferred its shareholdings qua Rajasthan and Gujarat Solar Power units, in our view, the interest of the respondents is to be protected till the matter is resolved by the arbitrator by directing the appellants to pay the arrears of lease rent and also to pay the future lease rent for the equipments at the rate of Rs.28,26,000/- per month.
|
Saurabh Kalani Vs. Tata Finance Limited & Another | been used interchangeably in SICA. Therefore. the reasons which persuaded this Court to give the same meaning to two different words in a statute cannot be applied here." (emphasis supplied)The Court, then, after noticing the judgment in Pandurang vs. Shantibai and certain other decisions observed as follows: "25. Having regard to the judicial interpretation of the word suit, it is difficult to accede to the submission of the appellants that the word suit in section 22(1) of the Act means anything other than some form of curial process." "26. Apart from the semantic difference between the words suit and proceeding there is the absence of expansive words or the like which appear after the expression proceedings, after the word suit. The exclusion of such omnibus expression after the word suit must be given some weight in interpreting the word. As held by this Court in LIC vs. Escorts Ltd. (supra) :"The distinction made by Parliament ....... in the several provisions of the same Act cannot be ignored or strained to be explained away by us. That is not the way to interpret statutes. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act the significance of the use of the qualifying word in one provision and its non-use in another provision may not be disregarded." "27. Since the Legislature has expressly chosen to make a distinction between the suits for recovery of the money and enforcement of guarantees and proceedings for the recovery of money, that must be given effect to." "28. Furthermore, the Parliament must be taken to be aware of the decision in Maharashtra Tubes and the fact that the word proceeding used in Section 22(1) had been widely construed to include proceedings for recovery of dues by State Financial Corporation as arrears of land revenue. The deliberate choice of word suit in the circumstances would indicate that Parliament intended to limit the ambit of the amendment introduced to particular modes for the recovery of money or enforcement of guarantees." (emphasis supplied)23. The Court further observed in Kailash Nath in paragraph 30 of the judgment as follows: "We have been unable to find a corresponding reason for widening the scope of the word suit so as to cover proceedings against the guarantor of an industrial company. The object for enacting the SICA and for introducing the 1994 amendment was to facilitate the rehabilitation or the winding up of sick industrial companies. It is not the stated object of the Act to protect any other person or body. If the creditor enforces the guarantee in respect of the loan granted to the industrial company, we do not see how the provisions of the Act would be rendered nugatory or in any way affected. All that could happen would be that the guarantor would step into the shoes of the creditor vis-a-vis the company to the extent of the liability met." 24. In the light of the decision in Kailash Nath Agarwal (supra), it would be totally impermissible to hold that even proceedings under the Arbitration & Conciliation Act, 1996 would be covered by the provisions of SICA. Mr. Chinoy, however, placed heavy reliance on the decision of the Supreme Court in Patel Roadways (supra). That was the case where the Court was considering the question whether the well established principles of law incorporated in Section 9 of the Carriers Act are applicable in a proceedings before the Consumer Disputes Redressal Agency, particularly the National Commission. The Court noted from the conspectus of views taken in the decisions of different High Courts that the liability of a common carrier under the carriers Act is that of an insurer, and this position is further made clear by provisions of Section 9 in which it is specifically laid down that in a case of claim of damage for loss to or deterioration of goods entrusted to a carrier it is not necessary for the Plaintiff to establish negligence. The Court after noticing the definition of "suit" in P. Ramanatha Aiyars Law lexicon 1997 Edition observed in paragraph 49 as follows: "49. From the above it is clear that the term "suit" is a generic term taking within its sweep all proceedings initiated by a party for realisation of a right vested in him under law. The meaning of the term "suit" also depends on the context of its user which in turn. amongst other things, depends on the Act or the Rule in which it is used. No doubt the proceedings before a National Commission is ordinarily a summary proceeding and in an appropriate case where the Commission feels that the issues raised by the parties are too contentious to be decided in a summary proceeding it may refer the parties to a civil Court. That does not mean that the proceeding before the Commission is to be decided ignoring the express statutory provisions of the Carriers Act (S.9) in a proceedings in which a claim is made against a common carrier as defined in the said Act. Accepting such a contention would defeat the object and purpose for which the Consumer Protection Act was enacted. A proceeding before the National Commission, in our considered view, comes within the term "suit" Accordingly we reject the contention raised by Shri Ashok Desai in this regard." (emphasis supplied)The above observations of the Supreme Court make it clear that the meaning of the term "suit" depends on the context of its user which in turn amongst other things, depends on the Act or the Rule in which it is used. In the context of the provisions of Section 22 of SICA and also keeping in mind the intention of the legislature in amending the Section, it is not possible to accept the submission of Mr. Chinoy that the arbitration proceedings under the Arbitration Act, 1996 are covered by the term "suit" used in Section 22(1) of the SICA. | 0[ds]8.In the light of the decided cases, it is abundantly clear that in considering the question as to whether a Judge or an arbitrator, is liable to be disqualified in the fact of a given case on the ground of bias the test to be applied is whether the circumstances are such as would lead a fair minded and informed observer to conclude that there was a real possibility that the Judge or Tribunal was biased. In the application under Section 12, only allegations that are made against the arbitrator were that the arbitrator was an advocate engaged by the Respondent No.1 or his sister concern in various matters. Then, it is also alleged that the arbitrator has very close relations with the Claimants. The arbitrator has categorically stated that save and except acting as an arbitrator for few matters of Tata Finance Ltd. i.e. Respondent No.1. he had never acted as advocate for the Respondent No.1, in any matter or proceedings. During the course of hearing further affidavit was filed on behalf of the Appellant stating that upon inquiries he has been reliably informed that the arbitrator was originally practising as a Company Secretary to the Company known as Tata International Ltd. This allegation was not made at any stage before the arbitrator. It appears that the learned single Judge called upon the learned Counsel for the Respondent No.1 to take specific instructions and inform the Court whether as a matter of fact the arbitrator had served as a company Secretary of Tata International Ltd. The learned Counsel appearing for the arbitrator has stated before the Court that between the years 1981 to 1987 the arbitrator was the Head of the Legal Department of Tata International Ltd. However, the arbitrator ceased to be in the service of Tata International Ltd. in 1987 and thereafter he has been practising as an advocate before this Court. It is an admitted position that Tata International Ltd. is an independent entity and duly registered under the Companies Act, 1986. Before us the ground that the arbitrator was biased as he had appeared in some of the Tata Group of companies was not even pressed. It is, however, urged that the arbitrator failed in his duty in disclosing the crucial fact that he was in the employment of the Tata Group of companies during the period from 1981 to 1987. The question is whether any right thinking person knowing of the connection of the arbitrator with the Tata International Ltd. would feel that there was any real possibility of bias in his case. The fact that the Arbitrator ceased from the employment of the Tata International Ltd. nearly 15 years back would make an allegation of bias clearly untenable. In Locabails case the Court has observed that "The greater the passage of time between the event relied on a showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection willlearned single Judge has summed up the position in followingam of the view in the present case, there were no justifiable doubts as regards the independence and impartiality of the Arbitrator. The apprehension of bias does not arise out of any alleged connection or interest of the Arbitrator in the affairs of the Claimant. The Arbitrator has had no such affiliation, contact or interest with the Claimant, least of all in the dispute with the Petitioner. The employment of the Arbitrator with Tata International Limited ended over twelve years prior to the reference. Employment in the distant past with another public company, albeit in the same group, was not such as would warrant the invocation of the circumstances spelt out in Section 12. The Arbitrator is a member of the Bar for over fifteen years now since he ceased to be in the service of Tata International Limited. A professional in the legal profession, who discharges the role of an Arbitrator is expected to bring to his task a sense of objectivity and a high degree of dispassionateness. No facts have been placed before the Court in these proceedings which would lead it to believe that this expectation has beenare entirely in agreement with the conclusion of the learned single Judge that no right thinking person knowing of the connection of the arbitrator, would feel that there was any possibility of bias in this case.In our opinion, the issue virtually stands concluded by the recent pronouncement of the Supreme Court in Kailash Nath Agarwalors. Vs. Pradeshiya IndustrialInvestment Corporation of U.P. Ltd.Anr., 2003 (2) SCALE 169. The question which fell for consideration of the Court was whether the word "suit" in Section 22(1) should be understood to include any proceedings including the proceedings under U.P. Public Demands (Recovery of Dues) Act, 1972. The Court noted the distinction between the expression "proceeding" and "suit" in paragraph 20 of theThere is an apparent distinction between the expression "proceeding" and "suit" used in Section 22(1). While it is true that two different words may be used in the same statute to convey the same meaning, that is the exception rather than the rule. The general rule is that when two different words are used by the same statute, prima facie one has to construe these different words as carrying different meanings. In Kanhaiyalal Vishnidas Gidwani (supra) this Court found that words subscribed and signed had been used in the Representation of People Act, 1951 interchangeably and, therefore, in that context the Court came to the conclusion that when the Legislature used the word subscribed it did not intend anything more than signing. The words suit and proceeding have not been used interchangeably in SICA. Therefore. the reasons which persuaded this Court to give the same meaning to two different words in a statute cannot be applied here." (emphasisIn the light of the decision in Kailash Nath Agarwal (supra), it would be totally impermissible to hold that even proceedings under the ArbitrationConciliation Act, 1996 would be covered by the provisions of SICA., however, placed heavy reliance on the decision of the Supreme Court in Patel Roadways (supra).That was the case where the Court was considering the question whether the well established principles of law incorporated in Section 9 of the Carriers Act are applicable in a proceedings before the Consumer Disputes Redressal Agency, particularly the National Commission. The Court noted from the conspectus of views taken in the decisions of different High Courts that the liability of a common carrier under the carriers Act is that of an insurer, and this position is further made clear by provisions of Section 9 in which it is specifically laid down that in a case of claim of damage for loss to or deterioration of goods entrusted to a carrier it is not necessary for the Plaintiff to establish negligence. The Court after noticing the definition of "suit" in P. Ramanatha Aiyars Law lexicon 1997 Edition observed in paragraph 49 asFrom the above it is clear that the term "suit" is a generic term taking within its sweep all proceedings initiated by a party for realisation of a right vested in him under law. The meaning of the term "suit" also depends on the context of its user which in turn. amongst other things, depends on the Act or the Rule in which it is used. No doubt the proceedings before a National Commission is ordinarily a summary proceeding and in an appropriate case where the Commission feels that the issues raised by the parties are too contentious to be decided in a summary proceeding it may refer the parties to a civil Court. That does not mean that the proceeding before the Commission is to be decided ignoring the express statutory provisions of the Carriers Act (S.9) in a proceedings in which a claim is made against a common carrier as defined in the said Act. Accepting such a contention would defeat the object and purpose for which the Consumer Protection Act was enacted. A proceeding before the National Commission, in our considered view, comes within the term "suit" Accordingly we reject the contention raised by Shri Ashok Desai in this regard." (emphasis supplied)The above observations of the Supreme Court make it clear that the meaning of the term "suit" depends on the context of its user which in turn amongst other things, depends on the Act or the Rule in which it is used. In the context of the provisions of Section 22 of SICA and also keeping in mind the intention of the legislature in amending the Section, it is not possible to accept the submission of Mr. Chinoy that the arbitration proceedings under the Arbitration Act, 1996 are covered by the term "suit" used in Section 22(1) of the SICA. | 0 | 7,951 | 1,604 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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been used interchangeably in SICA. Therefore. the reasons which persuaded this Court to give the same meaning to two different words in a statute cannot be applied here." (emphasis supplied)The Court, then, after noticing the judgment in Pandurang vs. Shantibai and certain other decisions observed as follows: "25. Having regard to the judicial interpretation of the word suit, it is difficult to accede to the submission of the appellants that the word suit in section 22(1) of the Act means anything other than some form of curial process." "26. Apart from the semantic difference between the words suit and proceeding there is the absence of expansive words or the like which appear after the expression proceedings, after the word suit. The exclusion of such omnibus expression after the word suit must be given some weight in interpreting the word. As held by this Court in LIC vs. Escorts Ltd. (supra) :"The distinction made by Parliament ....... in the several provisions of the same Act cannot be ignored or strained to be explained away by us. That is not the way to interpret statutes. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act the significance of the use of the qualifying word in one provision and its non-use in another provision may not be disregarded." "27. Since the Legislature has expressly chosen to make a distinction between the suits for recovery of the money and enforcement of guarantees and proceedings for the recovery of money, that must be given effect to." "28. Furthermore, the Parliament must be taken to be aware of the decision in Maharashtra Tubes and the fact that the word proceeding used in Section 22(1) had been widely construed to include proceedings for recovery of dues by State Financial Corporation as arrears of land revenue. The deliberate choice of word suit in the circumstances would indicate that Parliament intended to limit the ambit of the amendment introduced to particular modes for the recovery of money or enforcement of guarantees." (emphasis supplied)23. The Court further observed in Kailash Nath in paragraph 30 of the judgment as follows: "We have been unable to find a corresponding reason for widening the scope of the word suit so as to cover proceedings against the guarantor of an industrial company. The object for enacting the SICA and for introducing the 1994 amendment was to facilitate the rehabilitation or the winding up of sick industrial companies. It is not the stated object of the Act to protect any other person or body. If the creditor enforces the guarantee in respect of the loan granted to the industrial company, we do not see how the provisions of the Act would be rendered nugatory or in any way affected. All that could happen would be that the guarantor would step into the shoes of the creditor vis-a-vis the company to the extent of the liability met." 24. In the light of the decision in Kailash Nath Agarwal (supra), it would be totally impermissible to hold that even proceedings under the Arbitration & Conciliation Act, 1996 would be covered by the provisions of SICA. Mr. Chinoy, however, placed heavy reliance on the decision of the Supreme Court in Patel Roadways (supra). That was the case where the Court was considering the question whether the well established principles of law incorporated in Section 9 of the Carriers Act are applicable in a proceedings before the Consumer Disputes Redressal Agency, particularly the National Commission. The Court noted from the conspectus of views taken in the decisions of different High Courts that the liability of a common carrier under the carriers Act is that of an insurer, and this position is further made clear by provisions of Section 9 in which it is specifically laid down that in a case of claim of damage for loss to or deterioration of goods entrusted to a carrier it is not necessary for the Plaintiff to establish negligence. The Court after noticing the definition of "suit" in P. Ramanatha Aiyars Law lexicon 1997 Edition observed in paragraph 49 as follows: "49. From the above it is clear that the term "suit" is a generic term taking within its sweep all proceedings initiated by a party for realisation of a right vested in him under law. The meaning of the term "suit" also depends on the context of its user which in turn. amongst other things, depends on the Act or the Rule in which it is used. No doubt the proceedings before a National Commission is ordinarily a summary proceeding and in an appropriate case where the Commission feels that the issues raised by the parties are too contentious to be decided in a summary proceeding it may refer the parties to a civil Court. That does not mean that the proceeding before the Commission is to be decided ignoring the express statutory provisions of the Carriers Act (S.9) in a proceedings in which a claim is made against a common carrier as defined in the said Act. Accepting such a contention would defeat the object and purpose for which the Consumer Protection Act was enacted. A proceeding before the National Commission, in our considered view, comes within the term "suit" Accordingly we reject the contention raised by Shri Ashok Desai in this regard." (emphasis supplied)The above observations of the Supreme Court make it clear that the meaning of the term "suit" depends on the context of its user which in turn amongst other things, depends on the Act or the Rule in which it is used. In the context of the provisions of Section 22 of SICA and also keeping in mind the intention of the legislature in amending the Section, it is not possible to accept the submission of Mr. Chinoy that the arbitration proceedings under the Arbitration Act, 1996 are covered by the term "suit" used in Section 22(1) of the SICA.
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"The greater the passage of time between the event relied on a showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection willlearned single Judge has summed up the position in followingam of the view in the present case, there were no justifiable doubts as regards the independence and impartiality of the Arbitrator. The apprehension of bias does not arise out of any alleged connection or interest of the Arbitrator in the affairs of the Claimant. The Arbitrator has had no such affiliation, contact or interest with the Claimant, least of all in the dispute with the Petitioner. The employment of the Arbitrator with Tata International Limited ended over twelve years prior to the reference. Employment in the distant past with another public company, albeit in the same group, was not such as would warrant the invocation of the circumstances spelt out in Section 12. The Arbitrator is a member of the Bar for over fifteen years now since he ceased to be in the service of Tata International Limited. A professional in the legal profession, who discharges the role of an Arbitrator is expected to bring to his task a sense of objectivity and a high degree of dispassionateness. No facts have been placed before the Court in these proceedings which would lead it to believe that this expectation has beenare entirely in agreement with the conclusion of the learned single Judge that no right thinking person knowing of the connection of the arbitrator, would feel that there was any possibility of bias in this case.In our opinion, the issue virtually stands concluded by the recent pronouncement of the Supreme Court in Kailash Nath Agarwalors. Vs. Pradeshiya IndustrialInvestment Corporation of U.P. Ltd.Anr., 2003 (2) SCALE 169. The question which fell for consideration of the Court was whether the word "suit" in Section 22(1) should be understood to include any proceedings including the proceedings under U.P. Public Demands (Recovery of Dues) Act, 1972. The Court noted the distinction between the expression "proceeding" and "suit" in paragraph 20 of theThere is an apparent distinction between the expression "proceeding" and "suit" used in Section 22(1). While it is true that two different words may be used in the same statute to convey the same meaning, that is the exception rather than the rule. The general rule is that when two different words are used by the same statute, prima facie one has to construe these different words as carrying different meanings. In Kanhaiyalal Vishnidas Gidwani (supra) this Court found that words subscribed and signed had been used in the Representation of People Act, 1951 interchangeably and, therefore, in that context the Court came to the conclusion that when the Legislature used the word subscribed it did not intend anything more than signing. The words suit and proceeding have not been used interchangeably in SICA. Therefore. the reasons which persuaded this Court to give the same meaning to two different words in a statute cannot be applied here." (emphasisIn the light of the decision in Kailash Nath Agarwal (supra), it would be totally impermissible to hold that even proceedings under the ArbitrationConciliation Act, 1996 would be covered by the provisions of SICA., however, placed heavy reliance on the decision of the Supreme Court in Patel Roadways (supra).That was the case where the Court was considering the question whether the well established principles of law incorporated in Section 9 of the Carriers Act are applicable in a proceedings before the Consumer Disputes Redressal Agency, particularly the National Commission. The Court noted from the conspectus of views taken in the decisions of different High Courts that the liability of a common carrier under the carriers Act is that of an insurer, and this position is further made clear by provisions of Section 9 in which it is specifically laid down that in a case of claim of damage for loss to or deterioration of goods entrusted to a carrier it is not necessary for the Plaintiff to establish negligence. The Court after noticing the definition of "suit" in P. Ramanatha Aiyars Law lexicon 1997 Edition observed in paragraph 49 asFrom the above it is clear that the term "suit" is a generic term taking within its sweep all proceedings initiated by a party for realisation of a right vested in him under law. The meaning of the term "suit" also depends on the context of its user which in turn. amongst other things, depends on the Act or the Rule in which it is used. No doubt the proceedings before a National Commission is ordinarily a summary proceeding and in an appropriate case where the Commission feels that the issues raised by the parties are too contentious to be decided in a summary proceeding it may refer the parties to a civil Court. That does not mean that the proceeding before the Commission is to be decided ignoring the express statutory provisions of the Carriers Act (S.9) in a proceedings in which a claim is made against a common carrier as defined in the said Act. Accepting such a contention would defeat the object and purpose for which the Consumer Protection Act was enacted. A proceeding before the National Commission, in our considered view, comes within the term "suit" Accordingly we reject the contention raised by Shri Ashok Desai in this regard." (emphasis supplied)The above observations of the Supreme Court make it clear that the meaning of the term "suit" depends on the context of its user which in turn amongst other things, depends on the Act or the Rule in which it is used. In the context of the provisions of Section 22 of SICA and also keeping in mind the intention of the legislature in amending the Section, it is not possible to accept the submission of Mr. Chinoy that the arbitration proceedings under the Arbitration Act, 1996 are covered by the term "suit" used in Section 22(1) of the SICA.
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SAMARESH PRASAD CHOWDHURY Vs. UCO BANK AND OTHERS | 1. Leave granted. 2. The appellant calls in question the order of the High Court, by which the learned single Judge, according to the appellant, has made observations against him which are unwarranted, both on facts and in law. 3. The appellant is a Judicial Member of the State Consumer Disputes Redressal Commission, West Bengal. According to the appellant, in a case filed against the first respondent-bank on account of non-appearance on behalf of the first respondent-bank, the bank came to be proceeded ex-parte. 4. The case of the first respondent was that though it had approached by filing vakalatnama and seeking to set aside the order which was passed ex-parte, it was not being heeded to. 5. The complaint of the appellant is that the learned single Judge without appreciating the true state of facts and law, has made observations against him. The learned counsel would submit that on authorities, such observations were uncalled for. He would submit that the case of the appellant is that there is no power to set aside ex-parte order, as far as the State Commission is concerned. The amendment which was brought about only empowered the National Commission under Section 22A of the Consumer Protection Act, 1986. 6. We have also heard the learned counsel appearing for the first respondent. 7. We are of the view that there is merit in the case of the appellant. The observations which have been made against the appellant herein appear to have been unjustified having regard to the actual statutory provisions contained in the Act in question, as interpreted by this Court in a three-Judge Bench decision in Rajeev Hitendra Pathak vs. Achyut Kashinath Karekar, (2011) 9 SCC 541. | 1[ds]6. We have also heard the learned counsel appearing for the first respondent.7. We are of the view that there is merit in the case of the appellant. The observations which have been made against the appellant herein appear to have been unjustified having regard to the actual statutory provisions contained in the Act in question, as interpreted by this Court in a three-Judge Bench decision in Rajeev Hitendra Pathak vs. Achyut Kashinath Karekar, (2011) 9 SCC 541. | 1 | 318 | 90 | ### Instruction:
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1. Leave granted. 2. The appellant calls in question the order of the High Court, by which the learned single Judge, according to the appellant, has made observations against him which are unwarranted, both on facts and in law. 3. The appellant is a Judicial Member of the State Consumer Disputes Redressal Commission, West Bengal. According to the appellant, in a case filed against the first respondent-bank on account of non-appearance on behalf of the first respondent-bank, the bank came to be proceeded ex-parte. 4. The case of the first respondent was that though it had approached by filing vakalatnama and seeking to set aside the order which was passed ex-parte, it was not being heeded to. 5. The complaint of the appellant is that the learned single Judge without appreciating the true state of facts and law, has made observations against him. The learned counsel would submit that on authorities, such observations were uncalled for. He would submit that the case of the appellant is that there is no power to set aside ex-parte order, as far as the State Commission is concerned. The amendment which was brought about only empowered the National Commission under Section 22A of the Consumer Protection Act, 1986. 6. We have also heard the learned counsel appearing for the first respondent. 7. We are of the view that there is merit in the case of the appellant. The observations which have been made against the appellant herein appear to have been unjustified having regard to the actual statutory provisions contained in the Act in question, as interpreted by this Court in a three-Judge Bench decision in Rajeev Hitendra Pathak vs. Achyut Kashinath Karekar, (2011) 9 SCC 541.
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6. We have also heard the learned counsel appearing for the first respondent.7. We are of the view that there is merit in the case of the appellant. The observations which have been made against the appellant herein appear to have been unjustified having regard to the actual statutory provisions contained in the Act in question, as interpreted by this Court in a three-Judge Bench decision in Rajeev Hitendra Pathak vs. Achyut Kashinath Karekar, (2011) 9 SCC 541.
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U.P.Power Corporation Ltd Vs. National Thermal Power Corp.Ltd | viz., three years. 46. The Government of India issued guidelines for revision for the employees of the Central Public Sector undertakings as far back on 25.09.1999 with effect from 1.04.1997. It has not been denied or disputed that the respondent No. 1 implemented the revision and paid arrears of salaries with effect from 1.04.1997 to executives, workmen and supervisors, respectively during the years 2000-2001 by orders dated 6.07.2000, 2.03.2000 and 19.04.2001, respectively. They were already aware of the impending revision of scale of pay and had implemented in part, albeit, on a provisional basis. We fail to understand as to why it had filed applications for tariff determination for its generating stations at Korba and Dadri on 28.05.2001 and 8.06.2001, respectively. Not only that the amended applications did not contain the details of the prescribed data, a sheet with data of year 2000-2001, which was not a part of Form 16, was inserted at a later stage. Amended applications were filed only on 30.01.2002 and 7.02.2002. The year 2000-01 was not the relevant year for the aforementioned purpose. 47. There cannot be any doubt whatsoever that for the purpose of making tariff the actual costs required for payment to the employees being a part of the operation and maintenance cost including a sum of Rs. 55 crores, which were to be paid by way of extra amount, could fall for determination by the Central Commission. But, such an application ordinarily could have been filed within the period during which the tariff order was in force. 48. It is difficult to agree with the opinion of the appellate tribunal that increase in the salary with retrospective effect could have been a subject matter for determination of tariff in another period. In a fact situation obtaining herein, we are of the opinion that the claim of the respondent - corporation was not justified as the Central Commission should not have been asked to revisit the tariff after five years and when everybody had arranged its affairs. 49. Regulation 2.7 (d)(iv) of the 2001 Regulations clearly provides that applications must be entertained only in the event any situation arose within the purview thereof and not at any point of time. If the respondent No. 1 was aware that they were to incur an additional expenditure of Rs. 55/- crores, they could have preferred an appeal before the Central Commission. We have been informed at the bar that the appeals were preferred on other issues but not on this one.50. Framing of tariff is made in several stages. The generating companies get enough opportunity not only at the stage of making of tariff but may be at a later stage also to put forth its case including the amount it has to spend on operation and maintenance expenses as also escalation at the rate of 10% in each of the base year. It cannot, in our opinion, be permitted to re-agitate the said question after passing of many stages. Furthermore, the direction of the tribunal that the additional costs may be absorbed in the new tariff, in our opinion, was not correct. Some persons who are consumers during the tariff year in question may not continue to be the consumers of the appellant. Some new consumers might have come in. There is no reason as to why they should bear the brunt. Such quick-fix attitude, in our opinion, is not contemplated as framing of forthcoming tariff was put subject to fresh regulations and not the old regulations.51. We are not oblivious of the fact that in the Rihand Case, the Central Commission allowed the application of the respondent, but, therein a provision was made therefore in the original tariff order itself. Respondent No. 1 had filed a separate I.A. claiming the impact of arrears paid by it in 2000-2001 towards the years 1997-1998 to 1999-2000.52. We, therefore, on the aforementioned ground alone are of the opinion that it was not a fit case where the appellate tribunal should have interfered with the order of the Central Commission.53. Although on the question of jurisdiction the Central Commission might not have been correct, before parting with this case, we may, however, also notice a submission of Mr. Gupta that the appellate tribunal should not ordinarily interfere with an order of the Central Commission. We do not agree. The jurisdiction of the appellate tribunal is wide. It is also an expert tribunal and, thus, it can interfere with the finding of the Central Commission both on fact as also on law. Both the Central Commission as also the appellate tribunal being expert, we do not see how the decisions of this Court in Union of India and Another v. Cynamide India Ltd. and Another [(1987) 2 SCC 720] and Shri Sitaram Sugar Company Limited and Another v. Union of India and Others [(1990) 3 SCC 223] would be applicable. In Cellular Operators Association of India and Others v. Union of India and Others [(2004) 8 SCC 524] , this Court held: "TDSAT was required to exercise its jurisdiction in terms of Section 14-A of the Act. TDSAT itself is an expert body and its jurisdiction is wide having regard to sub-section (7) of Section 14-A thereof. Its jurisdiction extends to examining the legality, propriety or correctness of a direction/order or decision of the authority in terms of sub-section (2) of Section 14 as also the dispute made in an application under sub-section (1) thereof. The approach of the learned TDSAT, being on the premise that its jurisdiction is limited or akin to the power of judicial review is, therefore, wholly unsustainable. The extent of jurisdiction of a court or a tribunal depends upon the relevant statute. TDSAT is a creature of a statute. Its jurisdiction is also conferred by a statute. The purpose of creation of TDSAT has expressly been stated by Parliament in the amending Act of 2000. TDSAT, thus, failed to take into consideration the amplitude of its jurisdiction and thus misdirected itself in law." | 1[ds]33. Having regard to the nature of jurisdiction of the Central Commission in a case of this nature, we are of the opinion that even principles of res judicata will have no application.34. There cannot be any doubt whatsoever that while a tribunal or a court exercises adjudicatory power, although provisions of Section 11 of the Code of Civil Procedure are not applicable but the general principles of res judicata may be applicable as has been held by this Court in a consolidation matter in Sri Bhavanarayanaswamivari Temple v. Vadapalli Venkata Bhavanarayana Charyulu [(1970) 1 SCC 673, para 8], in a labour matter in Bharat Barrel and Drum Manufacturing Co. Pvt. Ltd. v. Bharat Barrel Employees Union [(1987) 2 SCC 591, paras 9 to 11], in a rent control matter in Vijayabai and Others v. Shriram Tukaram and Others [(1999) 1 SCC 693, para 14], in a writ petition in Forward Construction Co. and Others v. Prabhat Mandal (Regd.), Andheri and Others [(1986) 1 SCC 100, para 20], and in an arbitration proceeding in K.V. George v. Secretary to Government, Water and Power Department, Trivandrum and Another (1989) 4 SCC 595 , para 16], whereupon strong reliance has been placed by Mr. Gupta, but such a question does not arise herein.Moreover, such a point having never been raised before the Central Commission or the appellate tribunal, we are of the opinion that even otherwise the said argument should not be permitted to be raised before us for the first time.35. The Central Commission, as indicated hereinbefore, has a plenary power. Its inherent jurisdiction is saved. Having regard to the diverse nature of jurisdiction, it may for one purpose entertain an application so as to correct its own mistake but in relation to another function its jurisdiction may be limited. The provisions of the 1998 Act do not put any restriction on the Central Commission in the matter of exercise of such a jurisdiction. It is empowered to lay down its own procedure.36. Regulations 92, 94, 103 and 110 of the 1999 Regulations confer a wide power upon the Central Commission. They are to be exercised in different circumstances. Whereas Regulations 92 and 94 are to be exercised in regard to Chapter V, Regulations 103 and 110 apply in regard to cases where Regulations 92 and 94 would not have any application.Regulations 92 and 94, in our opinion, do not restrict the power of the Central Commission to make additions or alterations in the tariff. Making of a tariff is a continuous process. It can be amended or altered by the Central Commission, if any occasion arises therefor. The said power can be exercised not only on an application filed by the generating companies but by the Commission also on its own motion.37. Assuming that Regulation 103 of the 1999 Regulations would be applicable in a case of this nature, the same also confers a wide jurisdiction. The Commission, apart from entertaining an application for review on an application filed by a party, may exercise its suo motu jurisdiction. While the Central Commission exercises a suo motu jurisdiction, the period of limitation prescribed in Regulation 103 shall not apply. There cannot, however, by any doubt whatsoever that while exercising such jurisdiction, the Central Commission must act within a reasonable time. Furthermore, the statute does not provide for the manner in which a petition is to be filed before the Central Commission or the manner in which the tariff order is to be passed or revision or non-revision thereof.We are unable to accept the contention of Mr. Gupta that the operational and financial norms dated 21.12.2000 were not relevant. The Central Government itself recognized the need to adjust the Operation and Maintenance Expenses based on normative expenses after the actual are available in its order dated 21.12.2000 which was the principal order laying down normswas, thus, in our opinion, enough justification for filing the application for review of the tariff.The concept of regulatory jurisdiction provides for revisit of the tariff. It is now a well-settled principle of law that a subordinate legislation validly made becomes a part of the Act and should be read as such.44. There cannot be any doubt whatsoever that the word `regulation in some quarters is considered to be unruly horse. In Bank of New South Wales v. Commonwealth [(1948) 76 CLR 1] Dixon, J. observed that the word "control" is an unfortunate word of such wide and ambiguous import that it has been taken to mean something weaker than "restraint", something equivalent to "regulation".45. But, indisputably, the regulatory provisions are required to be applied having regard to the nature, textual context and situational context of each statute and case concerned. The power to regulate may include the power to grant or refuse to grant the licence or to require taking out a licence and may also include the power to tax or exempt from taxation. It implies a power to prescribe and enforce all such proper and reasonable rules and regulations as may be deemed necessary to conduct the business in a proper and orderly manner. It also includes the authority to prescribe the reasonable rules, regulations or conditions subject to which the business may be permitted or may be conducted. [See Deepak Theatre v. State of Punjab 1992 Supp (1) SCC 684 at 687]. Even otherwise the power of regulation conferred upon an authority with the obligations and functions that go with it and are incidental to it are not spent or exhausted with the grant of permission. [See State of U.P. v. Maharaja Dharmander Prasad Singh (1989) 2 SCC 505 ] In that sense, the power of Central Commission stricto sensu is not a judicial2001 Regulations, however, show that it had a limited duration, viz., threeRegulation 2.7 (d)(iv) of the 2001 Regulations clearly provides that applications must be entertained only in the event any situation arose within the purview thereof and not at any point of time. If the respondent No. 1 was aware that they were to incur an additional expenditure of Rs. 55/- crores, they could have preferred an appeal before the Central Commission. We have been informed at the bar that the appeals were preferred on other issues but not on this one.50. Framing of tariff is made in several stages. The generating companies get enough opportunity not only at the stage of making of tariff but may be at a later stage also to put forth its case including the amount it has to spend on operation and maintenance expenses as also escalation at the rate of 10% in each of the base year. It cannot, in our opinion, be permitted to re-agitate the said question after passing of many stages. Furthermore, the direction of the tribunal that the additional costs may be absorbed in the new tariff, in our opinion, was not correct. Some persons who are consumers during the tariff year in question may not continue to be the consumers of the appellant. Some new consumers might have come in. There is no reason as to why they should bear the brunt. Such quick-fix attitude, in our opinion, is not contemplated as framing of forthcoming tariff was put subject to fresh regulations and not the old regulations.51. We are not oblivious of the fact that in the Rihand Case, the Central Commission allowed the application of the respondent, but, therein a provision was made therefore in the original tariff order itself. Respondent No. 1 had filed a separate I.A. claiming the impact of arrears paid by it in 2000-2001 towards the years 1997-1998 to 1999-2000.52. We, therefore, on the aforementioned ground alone are of the opinion that it was not a fit case where the appellate tribunal should have interfered with the order of the Centraldo not agree. The jurisdiction of the appellate tribunal is wide. It is also an expert tribunal and, thus, it can interfere with the finding of the Central Commission both on fact as also on law. Both the Central Commission as also the appellate tribunal being expert, we do not see how the decisions of this Court in Union of India and Another v. Cynamide India Ltd. and Another [(1987) 2 SCC 720] and Shri Sitaram Sugar Company Limited and Another v. Union of India and Others [(1990) 3 SCC 223] would be applicable. | 1 | 8,934 | 1,570 | ### Instruction:
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viz., three years. 46. The Government of India issued guidelines for revision for the employees of the Central Public Sector undertakings as far back on 25.09.1999 with effect from 1.04.1997. It has not been denied or disputed that the respondent No. 1 implemented the revision and paid arrears of salaries with effect from 1.04.1997 to executives, workmen and supervisors, respectively during the years 2000-2001 by orders dated 6.07.2000, 2.03.2000 and 19.04.2001, respectively. They were already aware of the impending revision of scale of pay and had implemented in part, albeit, on a provisional basis. We fail to understand as to why it had filed applications for tariff determination for its generating stations at Korba and Dadri on 28.05.2001 and 8.06.2001, respectively. Not only that the amended applications did not contain the details of the prescribed data, a sheet with data of year 2000-2001, which was not a part of Form 16, was inserted at a later stage. Amended applications were filed only on 30.01.2002 and 7.02.2002. The year 2000-01 was not the relevant year for the aforementioned purpose. 47. There cannot be any doubt whatsoever that for the purpose of making tariff the actual costs required for payment to the employees being a part of the operation and maintenance cost including a sum of Rs. 55 crores, which were to be paid by way of extra amount, could fall for determination by the Central Commission. But, such an application ordinarily could have been filed within the period during which the tariff order was in force. 48. It is difficult to agree with the opinion of the appellate tribunal that increase in the salary with retrospective effect could have been a subject matter for determination of tariff in another period. In a fact situation obtaining herein, we are of the opinion that the claim of the respondent - corporation was not justified as the Central Commission should not have been asked to revisit the tariff after five years and when everybody had arranged its affairs. 49. Regulation 2.7 (d)(iv) of the 2001 Regulations clearly provides that applications must be entertained only in the event any situation arose within the purview thereof and not at any point of time. If the respondent No. 1 was aware that they were to incur an additional expenditure of Rs. 55/- crores, they could have preferred an appeal before the Central Commission. We have been informed at the bar that the appeals were preferred on other issues but not on this one.50. Framing of tariff is made in several stages. The generating companies get enough opportunity not only at the stage of making of tariff but may be at a later stage also to put forth its case including the amount it has to spend on operation and maintenance expenses as also escalation at the rate of 10% in each of the base year. It cannot, in our opinion, be permitted to re-agitate the said question after passing of many stages. Furthermore, the direction of the tribunal that the additional costs may be absorbed in the new tariff, in our opinion, was not correct. Some persons who are consumers during the tariff year in question may not continue to be the consumers of the appellant. Some new consumers might have come in. There is no reason as to why they should bear the brunt. Such quick-fix attitude, in our opinion, is not contemplated as framing of forthcoming tariff was put subject to fresh regulations and not the old regulations.51. We are not oblivious of the fact that in the Rihand Case, the Central Commission allowed the application of the respondent, but, therein a provision was made therefore in the original tariff order itself. Respondent No. 1 had filed a separate I.A. claiming the impact of arrears paid by it in 2000-2001 towards the years 1997-1998 to 1999-2000.52. We, therefore, on the aforementioned ground alone are of the opinion that it was not a fit case where the appellate tribunal should have interfered with the order of the Central Commission.53. Although on the question of jurisdiction the Central Commission might not have been correct, before parting with this case, we may, however, also notice a submission of Mr. Gupta that the appellate tribunal should not ordinarily interfere with an order of the Central Commission. We do not agree. The jurisdiction of the appellate tribunal is wide. It is also an expert tribunal and, thus, it can interfere with the finding of the Central Commission both on fact as also on law. Both the Central Commission as also the appellate tribunal being expert, we do not see how the decisions of this Court in Union of India and Another v. Cynamide India Ltd. and Another [(1987) 2 SCC 720] and Shri Sitaram Sugar Company Limited and Another v. Union of India and Others [(1990) 3 SCC 223] would be applicable. In Cellular Operators Association of India and Others v. Union of India and Others [(2004) 8 SCC 524] , this Court held: "TDSAT was required to exercise its jurisdiction in terms of Section 14-A of the Act. TDSAT itself is an expert body and its jurisdiction is wide having regard to sub-section (7) of Section 14-A thereof. Its jurisdiction extends to examining the legality, propriety or correctness of a direction/order or decision of the authority in terms of sub-section (2) of Section 14 as also the dispute made in an application under sub-section (1) thereof. The approach of the learned TDSAT, being on the premise that its jurisdiction is limited or akin to the power of judicial review is, therefore, wholly unsustainable. The extent of jurisdiction of a court or a tribunal depends upon the relevant statute. TDSAT is a creature of a statute. Its jurisdiction is also conferred by a statute. The purpose of creation of TDSAT has expressly been stated by Parliament in the amending Act of 2000. TDSAT, thus, failed to take into consideration the amplitude of its jurisdiction and thus misdirected itself in law."
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application.Regulations 92 and 94, in our opinion, do not restrict the power of the Central Commission to make additions or alterations in the tariff. Making of a tariff is a continuous process. It can be amended or altered by the Central Commission, if any occasion arises therefor. The said power can be exercised not only on an application filed by the generating companies but by the Commission also on its own motion.37. Assuming that Regulation 103 of the 1999 Regulations would be applicable in a case of this nature, the same also confers a wide jurisdiction. The Commission, apart from entertaining an application for review on an application filed by a party, may exercise its suo motu jurisdiction. While the Central Commission exercises a suo motu jurisdiction, the period of limitation prescribed in Regulation 103 shall not apply. There cannot, however, by any doubt whatsoever that while exercising such jurisdiction, the Central Commission must act within a reasonable time. Furthermore, the statute does not provide for the manner in which a petition is to be filed before the Central Commission or the manner in which the tariff order is to be passed or revision or non-revision thereof.We are unable to accept the contention of Mr. Gupta that the operational and financial norms dated 21.12.2000 were not relevant. The Central Government itself recognized the need to adjust the Operation and Maintenance Expenses based on normative expenses after the actual are available in its order dated 21.12.2000 which was the principal order laying down normswas, thus, in our opinion, enough justification for filing the application for review of the tariff.The concept of regulatory jurisdiction provides for revisit of the tariff. It is now a well-settled principle of law that a subordinate legislation validly made becomes a part of the Act and should be read as such.44. There cannot be any doubt whatsoever that the word `regulation in some quarters is considered to be unruly horse. In Bank of New South Wales v. Commonwealth [(1948) 76 CLR 1] Dixon, J. observed that the word "control" is an unfortunate word of such wide and ambiguous import that it has been taken to mean something weaker than "restraint", something equivalent to "regulation".45. But, indisputably, the regulatory provisions are required to be applied having regard to the nature, textual context and situational context of each statute and case concerned. The power to regulate may include the power to grant or refuse to grant the licence or to require taking out a licence and may also include the power to tax or exempt from taxation. It implies a power to prescribe and enforce all such proper and reasonable rules and regulations as may be deemed necessary to conduct the business in a proper and orderly manner. It also includes the authority to prescribe the reasonable rules, regulations or conditions subject to which the business may be permitted or may be conducted. [See Deepak Theatre v. State of Punjab 1992 Supp (1) SCC 684 at 687]. Even otherwise the power of regulation conferred upon an authority with the obligations and functions that go with it and are incidental to it are not spent or exhausted with the grant of permission. [See State of U.P. v. Maharaja Dharmander Prasad Singh (1989) 2 SCC 505 ] In that sense, the power of Central Commission stricto sensu is not a judicial2001 Regulations, however, show that it had a limited duration, viz., threeRegulation 2.7 (d)(iv) of the 2001 Regulations clearly provides that applications must be entertained only in the event any situation arose within the purview thereof and not at any point of time. If the respondent No. 1 was aware that they were to incur an additional expenditure of Rs. 55/- crores, they could have preferred an appeal before the Central Commission. We have been informed at the bar that the appeals were preferred on other issues but not on this one.50. Framing of tariff is made in several stages. The generating companies get enough opportunity not only at the stage of making of tariff but may be at a later stage also to put forth its case including the amount it has to spend on operation and maintenance expenses as also escalation at the rate of 10% in each of the base year. It cannot, in our opinion, be permitted to re-agitate the said question after passing of many stages. Furthermore, the direction of the tribunal that the additional costs may be absorbed in the new tariff, in our opinion, was not correct. Some persons who are consumers during the tariff year in question may not continue to be the consumers of the appellant. Some new consumers might have come in. There is no reason as to why they should bear the brunt. Such quick-fix attitude, in our opinion, is not contemplated as framing of forthcoming tariff was put subject to fresh regulations and not the old regulations.51. We are not oblivious of the fact that in the Rihand Case, the Central Commission allowed the application of the respondent, but, therein a provision was made therefore in the original tariff order itself. Respondent No. 1 had filed a separate I.A. claiming the impact of arrears paid by it in 2000-2001 towards the years 1997-1998 to 1999-2000.52. We, therefore, on the aforementioned ground alone are of the opinion that it was not a fit case where the appellate tribunal should have interfered with the order of the Centraldo not agree. The jurisdiction of the appellate tribunal is wide. It is also an expert tribunal and, thus, it can interfere with the finding of the Central Commission both on fact as also on law. Both the Central Commission as also the appellate tribunal being expert, we do not see how the decisions of this Court in Union of India and Another v. Cynamide India Ltd. and Another [(1987) 2 SCC 720] and Shri Sitaram Sugar Company Limited and Another v. Union of India and Others [(1990) 3 SCC 223] would be applicable.
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Commissioner of Income Tax, Poona Vs. M/s. Manna Ramji & Company | of a business" in respect of a business carried on by him. As the assessee had not carried on any business at all the compensation received by the assessee was held to be not profit of business. This case, in our opinion cannot be of much help to the respondent because in the present case, as observed earlier, the Tribunal has expressly found that the respondent was carrying on the business during the relevant years. 9. Reliance has also been placed by Mr. Hajarnavis upon the decision of House of Lords in the case of the Glenboig Union Fireclay Co. Ltd. , (1922) 12 Tax Cas 427 (supra). The assessee in that case was carrying on business for the manufacturing of fireclay goods and had taken in connection with that business a fireclay field on lease, over part of which ran the lines of the Caledonian Railway. The Railway administration prohibited the assessee from excavating the field within a certain distance of the rails and paid compensation therefor in accordance with the provisions of a statute. It was held by the House of Lords that this was a capital receipt as the compensation was really the price paid "for sterlizing the assets from which otherwise profits might have been obtained". It would follow from the above that the fireclay field was accepted to be a capital asset which was to be utilized for the carrying on of the business of manufacturing fireclay goods. When the assessee was prohibited from exploiting the field, it was considered to be an injury inflicted on his capital asset. The case of Glenboig Union Fireclay Co. Ltd., (1922) 12 Tax Cas 427 (supra) was cited before this Court in Commr. of Income Tax, Nagpur v. Rai Bahadur Jairam Valji, 35 ITR 148 = (AIR 1959 SC 291 ) and in Senairam Doongarmall, 42 ITR 392 = (AIR 1961 SC 1579 ) (supra) and was distinguished on the ground that it related to the sterlization and distruction of a capital asset. In the present case there has been no sterilization and destruction of the capital asset of the respondent firm. As such, the case of The Glenboig Union Fireclay Co. Ltd. cannot afford much assistance in the present case. 10. Reference has also been made by Mr. Hajarnavis to the cases of S. R. Y. Sivaram Prasad Bahadur v. Commr. of Income Tax, Andhra Pradesh, 82 ITR 527 = (AIR 1972 SC 260 ) and Commr. of Income Tax, Punjab, Haryana, Jammu and Kashmir and Himachal Pradesh v. Prabhu Dayal, 82 ITR 804 = (AIR 1972 SC 386 ). Sivaram Prasad Bahadurs case related to interim payments made under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948; of a former holder of an estate which had been abolished during the period between the taking over of the estate and the final determination and deposit of compensation under that Act. It was held to be a capital receipt and not liable to tax. Prabhu Dayals case related to an assessee who had discovered by chance the existence of Kankar in the Jind State. The assessee brought about an agreement between the State and one Shanti Prasad Jain for the acquisition of sole and exclusive monopoly rights for manufacturing cement. Shanti Prasad Jain transferred his rights under the agreement to a company of which the assessee was one of the promoters. For the services rendered by him, the company agreed to pay the assessee a commission of 1 per cent. on the yearly net profits earned by the company. The agreement was acted upon till 1950 whereafter the company did not pay the commission to the assessee. The assessee filed a suit which ended in a compromise. In terms of the compromise, the assessee was paid certain amounts as commission for the years 1951, 1952 and 1953 further sum of Rupees 70,000 by way of compensation for the determination of the agreement between him and the company as from January 1, 1954. Question which arose for determination was whether the sum of Rupees 70,000 was capital receipt in the hand of the assessee. The assessee, it was found, had not engaged either in the business of discovering kankar or any minerals or in the business of bringing about agreement between the parties. There was indeed, no evidence that he was a business man. It was held that none of the activities of the assessee could be considered to be business activity. The compromise, in the opinion of this Court, destroyed an income yielding asset of the assessee and in its place he was given Rupees 70,000 as compensation. The sum of Rupees 70,000 was accordingly held to be capital receipt. It is manifest from the narration of the facts of Sivaram Prasad Bahadur and Prabhu Dayals case that there is no similarity between those cases and the present case. As such, these two decisions cannot be of any avail to the respondent. 11.It may also be mentioned that Mr. Hajarnavis has assailed the findings of fact of the Tribunal. In this respect we are of the view that the Tribunal is the final fact finding authority. It is for the Tribunal to find facts and it is for the High Court and this Court to lay down the law applicable to the facts found. Neither the High Court nor this Court has jurisdiction to go behind or to question the statement of facts made by the Tribunal. The statement of case is binding on the parties and they are not entitled to go behind the facts of the Tribunal in the statement. When the question referred to the Hitgh Court speaks of "on the facts and circumstances of the case", it means on the facts and circumstances found by the Tribunal and not on the facts and circumstances as may be found by the High Court (see Karnani Properties Ltd. v. Commissioner of Income Tax, West Bengal, 82 ITR 547 = (AIR 1972 SC 2315 ). | 1[ds]10. Reference has also been made by Mr. Hajarnavis to the cases of S. R. Y. Sivaram Prasad Bahadur v. Commr. of Income Tax, Andhra Pradesh, 82 ITR 527 = (AIR 1972 SC 260 ) and Commr. of Income Tax, Punjab, Haryana, Jammu and Kashmir and Himachal Pradesh v. Prabhu Dayal, 82 ITR 804 = (AIR 1972 SC 386 ). Sivaram Prasad Bahadurs case related to interim payments made under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948; of a former holder of an estate which had been abolished during the period between the taking over of the estate and the final determination and deposit of compensation under that Act. It was held to be a capital receipt and not liable to tax. Prabhu Dayals case related to an assessee who had discovered by chance the existence of Kankar in the Jind State. The assessee brought about an agreement between the State and one Shanti Prasad Jain for the acquisition of sole and exclusive monopoly rights for manufacturing cement. Shanti Prasad Jain transferred his rights under the agreement to a company of which the assessee was one of the promoters. For the services rendered by him, the company agreed to pay the assessee a commission of 1 per cent. on the yearly net profits earned by the company. The agreement was acted upon till 1950 whereafter the company did not pay the commission to the assessee. The assessee filed a suit which ended in a compromise. In terms of the compromise, the assessee was paid certain amounts as commission for the years 1951, 1952 and 1953 further sum of Rupees 70,000 by way of compensation for the determination of the agreement between him and the company as from January 1, 1954. Question which arose for determination was whether the sum of Rupees 70,000 was capital receipt in the hand of the assessee. The assessee, it was found, had not engaged either in the business of discovering kankar or any minerals or in the business of bringing about agreement between the parties. There was indeed, no evidence that he was a business man. It was held that none of the activities of the assessee could be considered to be business activity. The compromise, in the opinion of this Court, destroyed an income yielding asset of the assessee and in its place he was given Rupees 70,000 as compensation. The sum of Rupees 70,000 was accordingly held to be capital receipt. It is manifest from the narration of the facts of Sivaram Prasad Bahadur and Prabhu Dayals case that there is no similarity between those cases and the present case. As such, these two decisions cannot be of any avail to the respondent11.It may also be mentioned that Mr. Hajarnavis has assailed the findings of fact of the Tribunal. In this respect we are of the view that the Tribunal is the final fact finding authority. It is for the Tribunal to find facts and it is for the High Court and this Court to lay down the law applicable to the facts found. Neither the High Court nor this Court has jurisdiction to go behind or to question the statement of facts made by the Tribunal. The statement of case is binding on the parties and they are not entitled to go behind the facts of the Tribunal in the statement. When the question referred to the Hitgh Court speaks of "on the facts and circumstances of the case", it means on the facts and circumstances found by the Tribunal and not on the facts and circumstances as may be found by the High Court (see Karnani Properties Ltd. v. Commissioner of Income Tax, West Bengal, 82 ITR 547 = (AIR 1972 SC 2315 ). | 1 | 3,620 | 687 | ### Instruction:
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of a business" in respect of a business carried on by him. As the assessee had not carried on any business at all the compensation received by the assessee was held to be not profit of business. This case, in our opinion cannot be of much help to the respondent because in the present case, as observed earlier, the Tribunal has expressly found that the respondent was carrying on the business during the relevant years. 9. Reliance has also been placed by Mr. Hajarnavis upon the decision of House of Lords in the case of the Glenboig Union Fireclay Co. Ltd. , (1922) 12 Tax Cas 427 (supra). The assessee in that case was carrying on business for the manufacturing of fireclay goods and had taken in connection with that business a fireclay field on lease, over part of which ran the lines of the Caledonian Railway. The Railway administration prohibited the assessee from excavating the field within a certain distance of the rails and paid compensation therefor in accordance with the provisions of a statute. It was held by the House of Lords that this was a capital receipt as the compensation was really the price paid "for sterlizing the assets from which otherwise profits might have been obtained". It would follow from the above that the fireclay field was accepted to be a capital asset which was to be utilized for the carrying on of the business of manufacturing fireclay goods. When the assessee was prohibited from exploiting the field, it was considered to be an injury inflicted on his capital asset. The case of Glenboig Union Fireclay Co. Ltd., (1922) 12 Tax Cas 427 (supra) was cited before this Court in Commr. of Income Tax, Nagpur v. Rai Bahadur Jairam Valji, 35 ITR 148 = (AIR 1959 SC 291 ) and in Senairam Doongarmall, 42 ITR 392 = (AIR 1961 SC 1579 ) (supra) and was distinguished on the ground that it related to the sterlization and distruction of a capital asset. In the present case there has been no sterilization and destruction of the capital asset of the respondent firm. As such, the case of The Glenboig Union Fireclay Co. Ltd. cannot afford much assistance in the present case. 10. Reference has also been made by Mr. Hajarnavis to the cases of S. R. Y. Sivaram Prasad Bahadur v. Commr. of Income Tax, Andhra Pradesh, 82 ITR 527 = (AIR 1972 SC 260 ) and Commr. of Income Tax, Punjab, Haryana, Jammu and Kashmir and Himachal Pradesh v. Prabhu Dayal, 82 ITR 804 = (AIR 1972 SC 386 ). Sivaram Prasad Bahadurs case related to interim payments made under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948; of a former holder of an estate which had been abolished during the period between the taking over of the estate and the final determination and deposit of compensation under that Act. It was held to be a capital receipt and not liable to tax. Prabhu Dayals case related to an assessee who had discovered by chance the existence of Kankar in the Jind State. The assessee brought about an agreement between the State and one Shanti Prasad Jain for the acquisition of sole and exclusive monopoly rights for manufacturing cement. Shanti Prasad Jain transferred his rights under the agreement to a company of which the assessee was one of the promoters. For the services rendered by him, the company agreed to pay the assessee a commission of 1 per cent. on the yearly net profits earned by the company. The agreement was acted upon till 1950 whereafter the company did not pay the commission to the assessee. The assessee filed a suit which ended in a compromise. In terms of the compromise, the assessee was paid certain amounts as commission for the years 1951, 1952 and 1953 further sum of Rupees 70,000 by way of compensation for the determination of the agreement between him and the company as from January 1, 1954. Question which arose for determination was whether the sum of Rupees 70,000 was capital receipt in the hand of the assessee. The assessee, it was found, had not engaged either in the business of discovering kankar or any minerals or in the business of bringing about agreement between the parties. There was indeed, no evidence that he was a business man. It was held that none of the activities of the assessee could be considered to be business activity. The compromise, in the opinion of this Court, destroyed an income yielding asset of the assessee and in its place he was given Rupees 70,000 as compensation. The sum of Rupees 70,000 was accordingly held to be capital receipt. It is manifest from the narration of the facts of Sivaram Prasad Bahadur and Prabhu Dayals case that there is no similarity between those cases and the present case. As such, these two decisions cannot be of any avail to the respondent. 11.It may also be mentioned that Mr. Hajarnavis has assailed the findings of fact of the Tribunal. In this respect we are of the view that the Tribunal is the final fact finding authority. It is for the Tribunal to find facts and it is for the High Court and this Court to lay down the law applicable to the facts found. Neither the High Court nor this Court has jurisdiction to go behind or to question the statement of facts made by the Tribunal. The statement of case is binding on the parties and they are not entitled to go behind the facts of the Tribunal in the statement. When the question referred to the Hitgh Court speaks of "on the facts and circumstances of the case", it means on the facts and circumstances found by the Tribunal and not on the facts and circumstances as may be found by the High Court (see Karnani Properties Ltd. v. Commissioner of Income Tax, West Bengal, 82 ITR 547 = (AIR 1972 SC 2315 ).
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10. Reference has also been made by Mr. Hajarnavis to the cases of S. R. Y. Sivaram Prasad Bahadur v. Commr. of Income Tax, Andhra Pradesh, 82 ITR 527 = (AIR 1972 SC 260 ) and Commr. of Income Tax, Punjab, Haryana, Jammu and Kashmir and Himachal Pradesh v. Prabhu Dayal, 82 ITR 804 = (AIR 1972 SC 386 ). Sivaram Prasad Bahadurs case related to interim payments made under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948; of a former holder of an estate which had been abolished during the period between the taking over of the estate and the final determination and deposit of compensation under that Act. It was held to be a capital receipt and not liable to tax. Prabhu Dayals case related to an assessee who had discovered by chance the existence of Kankar in the Jind State. The assessee brought about an agreement between the State and one Shanti Prasad Jain for the acquisition of sole and exclusive monopoly rights for manufacturing cement. Shanti Prasad Jain transferred his rights under the agreement to a company of which the assessee was one of the promoters. For the services rendered by him, the company agreed to pay the assessee a commission of 1 per cent. on the yearly net profits earned by the company. The agreement was acted upon till 1950 whereafter the company did not pay the commission to the assessee. The assessee filed a suit which ended in a compromise. In terms of the compromise, the assessee was paid certain amounts as commission for the years 1951, 1952 and 1953 further sum of Rupees 70,000 by way of compensation for the determination of the agreement between him and the company as from January 1, 1954. Question which arose for determination was whether the sum of Rupees 70,000 was capital receipt in the hand of the assessee. The assessee, it was found, had not engaged either in the business of discovering kankar or any minerals or in the business of bringing about agreement between the parties. There was indeed, no evidence that he was a business man. It was held that none of the activities of the assessee could be considered to be business activity. The compromise, in the opinion of this Court, destroyed an income yielding asset of the assessee and in its place he was given Rupees 70,000 as compensation. The sum of Rupees 70,000 was accordingly held to be capital receipt. It is manifest from the narration of the facts of Sivaram Prasad Bahadur and Prabhu Dayals case that there is no similarity between those cases and the present case. As such, these two decisions cannot be of any avail to the respondent11.It may also be mentioned that Mr. Hajarnavis has assailed the findings of fact of the Tribunal. In this respect we are of the view that the Tribunal is the final fact finding authority. It is for the Tribunal to find facts and it is for the High Court and this Court to lay down the law applicable to the facts found. Neither the High Court nor this Court has jurisdiction to go behind or to question the statement of facts made by the Tribunal. The statement of case is binding on the parties and they are not entitled to go behind the facts of the Tribunal in the statement. When the question referred to the Hitgh Court speaks of "on the facts and circumstances of the case", it means on the facts and circumstances found by the Tribunal and not on the facts and circumstances as may be found by the High Court (see Karnani Properties Ltd. v. Commissioner of Income Tax, West Bengal, 82 ITR 547 = (AIR 1972 SC 2315 ).
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Juggilal Kamlapat, Kanpur Vs. Commissioner Of Income-Tax, Lucknow | of "financial embarrassment" was plainly untrue. The Tribunal, was in our judgment right, in inferring that the "purchase and sale of shares was a business activity which was continuous", and since the firm "had entered upon a well-planned scheme for earning profit and that in furtherance and execution of that profit making scheme they sold the shares at the opportune time" and that "the sale of the shares was not merely on account of pecuniary embarrassment" as claimed, the profit realised by the firm by the sales of shares could not be characterised as a casual receipt nor could it be treated as accretion to a capital asset.6. Strong reliance was, however, placed on a somewhat obscure statement in the order of the Appellate Assistant Commissioner:"In the case of Raymond Woollen Mills shares it is clear beyond doubt that the purchase of the shares was a first rate business deal and that it was motivated by the desire and intention to acquire the Managing Agency of the Mills. If this is not an operation in the scheme of profit-making it is not known what will constitute such a transaction."Apparently there is a typographical error in the second clause of the first sentence, and the word "not" has by inadvertence been omitted otherwise in the context in which it occurs the clause has no meaning whatever. In any event as rightly pointed out by the High Court the reasons given by the Tribunal and the conclusion recorded by it are inconsistent with the finding that the shares were purchased with the sole object of acquiring the Managing Agency of the Raymond Woollen Mills and not with a view to make profits.7. Counsel for the firm invited our attention to the decision of this Court in Ramnarain Sons (P) Ltd. v. Commissioner of Income-tax Bombay, 41 ITR 534 = (AIR 1961 SC 1141 ) in support of his contention that a transaction for purchasing shares with the object of acquiring the managing agency of a company will be regarded as capital investment and not a business in share. In Ramnarain Sons case, 41 ITR 534 = (AIR 1961 SC 1141 ) the appellant Company was a dealer in shares and securities and also carried on business as managing agents of other companies. With a view to acquire the managing agency of a company, the appellant Company purchased from a managing agent a large block of shares at a rate approximately 50 per cent above the ruling market rate. Two months later the appellant Company sold a small lot out of those shares at a loss and claimed the loss as a trading loss. It was found in that case by the Tribunal that the intention of purchasing the shares was not to acquire them as part of the stock-in-trade of tax-payers business in shares, but to facilitate acquisition of the managing agency of the Company which was in fact acquired, and on that account loss incurred by the sale of a small lot could be regarded only as a loss of capital nature. The Court observed in that case that the circumstance that the tax-payer had borrowed loans at interest to purchase the shares or that it was a dealer in shares and was authorised by its memorandum of association to deal in shares was of no effect. On a review of the evidence the Tribunal held that the shares were purchased with the object of acquiring the managing agency and with that view the High Court agreed.8. Whether a transaction is or is not an adventure in the nature of trade is question of mixed law and fact: in each case the legal effect of the facts found by the Tribunal on which the tax-payer could be treated as a dealer or an investor in shares, has to be determined. In the present case the transaction since the inception appears to be impressed with the character of a commercial transaction entered with a view to earn profit. Large block of shares was purchased at the ruling rates with borrowed money, and soon thereafter the shares were disposed of at a profit in small lots. Some of the shares were sold through brokers to strangers. The story of the firm that some or all the shares were merely "distributed" to its associates is not proved. The interest which the firm had to pay for the amount borrowed for purchasing the shares was debited in the revenue account and was claimed as a revenue allowance.9. It was not the case of the firm that Aluminium and J. K. Trust shares were purchased for acquiring the managing agency. It was claimed that the shares were taken over because the public did not accept those shares. It was one of the objects of the firm to finance its allied concerns and in taking over shares which the public did not subscribe the firm was acting in the course of its business. The firm commenced selling the shares soon after they were purchased. Aluminium shares were purchased between January 26, 1945 and April 5, 1946 (except a few which were retained) and sold at profit. Whereas the first lot was purchased on January 26, 1945, the first sale was made on February 1, 1945. It could not be said that this was an investment in shares independent of the trading activity of the firm. The story that the shares had to be sold on account of financial difficulties is plainly belied by the circumstances that the firm went on purchasing and selling the Aluminium shares. J. K. Trust shares were purchased on February 14, 1945 and were sold on August 22, 1945. Aluminium shares as well as J. K. Trust shares were sold at a profit and through brokers. These transactions were also stamped with the character of commercial transactions entered into with a profit motive and were not transactions in the nature of capital investments. The answer recorded by the High Court is therefore correct. | 0[ds]there is a typographical error in the second clause of the first sentence, and the word "not" has by inadvertence been omitted otherwise in the context in which it occurs the clause has no meaning whatever. In any event as rightly pointed out by the High Court the reasons given by the Tribunal and the conclusion recorded by it are inconsistent with the finding that the shares were purchased with the sole object of acquiring the Managing Agency of the Raymond Woollen Mills and not with a view to makethe present case the transaction since the inception appears to be impressed with the character of a commercial transaction entered with a view to earn profit. Large block of shares was purchased at the ruling rates with borrowed money, and soon thereafter the shares were disposed of at a profit in small lots. Some of the shares were sold through brokers to strangers. The story of the firm that some or all the shares were merely "distributed" to its associates is not proved. The interest which the firm had to pay for the amount borrowed for purchasing the shares was debited in the revenue account and was claimed as a revenuewas one of the objects of the firm to finance its allied concerns and in taking over shares which the public did not subscribe the firm was acting in the course of its business. The firm commenced selling the shares soon after they were purchased. Aluminium shares were purchased between January 26, 1945 and April 5, 1946 (except a few which were retained) and sold at profit. Whereas the first lot was purchased on January 26, 1945, the first sale was made on February 1, 1945. It could not be said that this was an investment in shares independent of the trading activity of the firm. The story that the shares had to be sold on account of financial difficulties is plainly belied by the circumstances that the firm went on purchasing and selling the Aluminium shares. J. K. Trust shares were purchased on February 14, 1945 and were sold on August 22, 1945. Aluminium shares as well as J. K. Trust shares were sold at a profit and through brokers. These transactions were also stamped with the character of commercial transactions entered into with a profit motive and were not transactions in the nature of capital investments. The answer recorded by the High Court is therefore correct.Whether a transaction is or is not an adventure in the nature oftrade is question of mixed law and fact: in each case the legal effect of the facts found by the Tribunal on which thecould be treated as a dealer or an investor in shares, has to be determined. Inthe present case the transaction since the inception appears to be impressed with the character of a commercial transaction entered with a view to earn profit. Large block of shares was purchased at the ruling rates with borrowed money, and soon thereafter the shares were disposed of at a profit in small lots. Some of the shares were sold through brokers to strangers. The story of the firm that some or all the shares were merely "distributed" to its associates is not proved. The interest which the firm had to pay for the amount borrowed for purchasing the shares was debited in the revenue account and was claimed as a revenue | 0 | 2,004 | 610 | ### Instruction:
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of "financial embarrassment" was plainly untrue. The Tribunal, was in our judgment right, in inferring that the "purchase and sale of shares was a business activity which was continuous", and since the firm "had entered upon a well-planned scheme for earning profit and that in furtherance and execution of that profit making scheme they sold the shares at the opportune time" and that "the sale of the shares was not merely on account of pecuniary embarrassment" as claimed, the profit realised by the firm by the sales of shares could not be characterised as a casual receipt nor could it be treated as accretion to a capital asset.6. Strong reliance was, however, placed on a somewhat obscure statement in the order of the Appellate Assistant Commissioner:"In the case of Raymond Woollen Mills shares it is clear beyond doubt that the purchase of the shares was a first rate business deal and that it was motivated by the desire and intention to acquire the Managing Agency of the Mills. If this is not an operation in the scheme of profit-making it is not known what will constitute such a transaction."Apparently there is a typographical error in the second clause of the first sentence, and the word "not" has by inadvertence been omitted otherwise in the context in which it occurs the clause has no meaning whatever. In any event as rightly pointed out by the High Court the reasons given by the Tribunal and the conclusion recorded by it are inconsistent with the finding that the shares were purchased with the sole object of acquiring the Managing Agency of the Raymond Woollen Mills and not with a view to make profits.7. Counsel for the firm invited our attention to the decision of this Court in Ramnarain Sons (P) Ltd. v. Commissioner of Income-tax Bombay, 41 ITR 534 = (AIR 1961 SC 1141 ) in support of his contention that a transaction for purchasing shares with the object of acquiring the managing agency of a company will be regarded as capital investment and not a business in share. In Ramnarain Sons case, 41 ITR 534 = (AIR 1961 SC 1141 ) the appellant Company was a dealer in shares and securities and also carried on business as managing agents of other companies. With a view to acquire the managing agency of a company, the appellant Company purchased from a managing agent a large block of shares at a rate approximately 50 per cent above the ruling market rate. Two months later the appellant Company sold a small lot out of those shares at a loss and claimed the loss as a trading loss. It was found in that case by the Tribunal that the intention of purchasing the shares was not to acquire them as part of the stock-in-trade of tax-payers business in shares, but to facilitate acquisition of the managing agency of the Company which was in fact acquired, and on that account loss incurred by the sale of a small lot could be regarded only as a loss of capital nature. The Court observed in that case that the circumstance that the tax-payer had borrowed loans at interest to purchase the shares or that it was a dealer in shares and was authorised by its memorandum of association to deal in shares was of no effect. On a review of the evidence the Tribunal held that the shares were purchased with the object of acquiring the managing agency and with that view the High Court agreed.8. Whether a transaction is or is not an adventure in the nature of trade is question of mixed law and fact: in each case the legal effect of the facts found by the Tribunal on which the tax-payer could be treated as a dealer or an investor in shares, has to be determined. In the present case the transaction since the inception appears to be impressed with the character of a commercial transaction entered with a view to earn profit. Large block of shares was purchased at the ruling rates with borrowed money, and soon thereafter the shares were disposed of at a profit in small lots. Some of the shares were sold through brokers to strangers. The story of the firm that some or all the shares were merely "distributed" to its associates is not proved. The interest which the firm had to pay for the amount borrowed for purchasing the shares was debited in the revenue account and was claimed as a revenue allowance.9. It was not the case of the firm that Aluminium and J. K. Trust shares were purchased for acquiring the managing agency. It was claimed that the shares were taken over because the public did not accept those shares. It was one of the objects of the firm to finance its allied concerns and in taking over shares which the public did not subscribe the firm was acting in the course of its business. The firm commenced selling the shares soon after they were purchased. Aluminium shares were purchased between January 26, 1945 and April 5, 1946 (except a few which were retained) and sold at profit. Whereas the first lot was purchased on January 26, 1945, the first sale was made on February 1, 1945. It could not be said that this was an investment in shares independent of the trading activity of the firm. The story that the shares had to be sold on account of financial difficulties is plainly belied by the circumstances that the firm went on purchasing and selling the Aluminium shares. J. K. Trust shares were purchased on February 14, 1945 and were sold on August 22, 1945. Aluminium shares as well as J. K. Trust shares were sold at a profit and through brokers. These transactions were also stamped with the character of commercial transactions entered into with a profit motive and were not transactions in the nature of capital investments. The answer recorded by the High Court is therefore correct.
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### Explanation:
there is a typographical error in the second clause of the first sentence, and the word "not" has by inadvertence been omitted otherwise in the context in which it occurs the clause has no meaning whatever. In any event as rightly pointed out by the High Court the reasons given by the Tribunal and the conclusion recorded by it are inconsistent with the finding that the shares were purchased with the sole object of acquiring the Managing Agency of the Raymond Woollen Mills and not with a view to makethe present case the transaction since the inception appears to be impressed with the character of a commercial transaction entered with a view to earn profit. Large block of shares was purchased at the ruling rates with borrowed money, and soon thereafter the shares were disposed of at a profit in small lots. Some of the shares were sold through brokers to strangers. The story of the firm that some or all the shares were merely "distributed" to its associates is not proved. The interest which the firm had to pay for the amount borrowed for purchasing the shares was debited in the revenue account and was claimed as a revenuewas one of the objects of the firm to finance its allied concerns and in taking over shares which the public did not subscribe the firm was acting in the course of its business. The firm commenced selling the shares soon after they were purchased. Aluminium shares were purchased between January 26, 1945 and April 5, 1946 (except a few which were retained) and sold at profit. Whereas the first lot was purchased on January 26, 1945, the first sale was made on February 1, 1945. It could not be said that this was an investment in shares independent of the trading activity of the firm. The story that the shares had to be sold on account of financial difficulties is plainly belied by the circumstances that the firm went on purchasing and selling the Aluminium shares. J. K. Trust shares were purchased on February 14, 1945 and were sold on August 22, 1945. Aluminium shares as well as J. K. Trust shares were sold at a profit and through brokers. These transactions were also stamped with the character of commercial transactions entered into with a profit motive and were not transactions in the nature of capital investments. The answer recorded by the High Court is therefore correct.Whether a transaction is or is not an adventure in the nature oftrade is question of mixed law and fact: in each case the legal effect of the facts found by the Tribunal on which thecould be treated as a dealer or an investor in shares, has to be determined. Inthe present case the transaction since the inception appears to be impressed with the character of a commercial transaction entered with a view to earn profit. Large block of shares was purchased at the ruling rates with borrowed money, and soon thereafter the shares were disposed of at a profit in small lots. Some of the shares were sold through brokers to strangers. The story of the firm that some or all the shares were merely "distributed" to its associates is not proved. The interest which the firm had to pay for the amount borrowed for purchasing the shares was debited in the revenue account and was claimed as a revenue
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KALPRAJ DHARAMSHI & ANR Vs. KOTAK INVESTMENT ADVISORS LTD. & ANR | amount of Rs.120.54 crore in addition to Rs.477 crore and deposit the said amount in escrow account within 30 days, the order of approval of the resolution plan was to be treated to be set aside. While allowing the appeal and setting aside the directions of NCLAT, this Court observed thus: 30. The appellate authority has, in our opinion, proceeded on equitable perception rather than commercial wisdom. On the face of it, release of assets at a value 20% below its liquidation value arrived at by the valuers seems inequitable. Here, we feel the Court ought to cede ground to the commercial wis- dom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the adjudicating authority has to be satisfied that the requirement of sub-section (2) of Section 30 of the Code has been com- plied with. The proviso to Section 31(1) of the Code stipulates the other point on which an adjudicating authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the adjudicating authority in limited judicial review has been laid down in Essar Steel [Essar Steel India Ltd. Commit- tee of Creditors v. Satish Kumar Gupta, (2020) 8 SCC 531 ] , the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more funds. In such circumstances, we do not think the appellate authority ought to have interfered with the order of the adjudicating authority in direct- ing the successful resolution applicant to en- hance their fund inflow upfront. 154. This Court observed, that the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. This Court clearly held, that the appellate authority ought not to have interfered with the order of the adjudicating authority by directing the successful resolution applicant to enhance their fund inflow upfront. 155. It would thus be clear, that the legislative scheme, as interpreted by various decisions of this Court, is unambiguous. The commercial wisdom of CoC is not to be interfered with, excepting the limited scope as provided under Sections 30 and 31 of the I&B Code. 156. No doubt, it is sought to be urged, that since there has been a material irregularity in exercise of the powers by RP, NCLAT was justified in view of the provisions of clause (ii) of sub-section (3) of Section 61 of the I&B Code to interfere with the exercise of power by RP. However, it could be seen, that all actions of RP have the seal of approval of CoC. No doubt, it was possible for RP to have issued another Form G, in the event he found, that the proposals received by it prior to the date specified in last Form G could not be accepted. However, it has been the consistent stand of RP as well as CoC, that all actions of RP, including acceptance of resolution plans of Kalpraj after the due date, albeit before the expiry of timeline specified by the I&B Code for completion of the process, have been consciously approved by CoC. It is to be noted, that the decision of CoC is taken by a thumping majority of 84.36%. The only creditor voted in favour of KIAL is Kotak Bank, which is a holding company of KIAL, having voting rights of 0.97%. We are of the considered view, that in view of the paramount importance given to the decision of CoC, which is to be taken on the basis of commercial wisdom, NCLAT was not correct in law in interfering with the commercial decision taken by CoC by a thumping majority of 84.36%. 157. It is further to be noted, that after the resolution plan of Kalpraj was approved by NCLT on 28.11.2019, Kalpraj had begun implementing the resolution plan. NCLAT had heard the appeals on 27.2.2020 and reserved the same for orders. It is not in dispute, that there was no stay granted by NCLAT, while reserving the matters for orders. After a gap of five months and eight days, NCLAT passed the final order on 5.8.2020. It could thus be seen, that for a long period, there was no restraint on implementation of the resolution plan of Kalpraj, which was duly approved by NCLT. It is the case of Kalpraj, RP, CoC and Deutsche Bank, that during the said period, various steps have been taken by Kalpraj by spending a huge amount for implementation of the plan. No doubt, this is sought to be disputed by KIAL. However, we do not find it necessary to go into that aspect of the matter in light of our conclusion, that NCLAT acted in excess of jurisdiction in interfering with the conscious commercial decision of CoC. 158. It is also pointed out, that in pursuance of the order dated 5.8.2020 passed by NCLAT, CoC has approved the resolution plan of KIAL on 13.8.2020. However, since we have already held, that the decision of NCLAT dated 5.8.2020 does not stand the scrutiny of law, it must follow, that the subsequent approval of the resolution plan of KIAL by CoC becomes non-est in law. For, it was only to abide by the directions of NCLAT. We are of the view that nothing would turn on it. The decision of CoC dated 13/14.2.2019 is a decision, which has been taken in exercise of its commercial wisdom. As such, we hold, that the decision taken by CoC dated 13/14.2.2019, which is taken in accordance with its commercial wisdom and which is duly approved by NCLT, will prevail. Further, NCLAT was not justified in interfering with the stated decision taken by CoC. | 1[ds]37. Perusal of the aforesaid would reveal, that though the provisions of the Limitation Act, as far as may be, would apply to the proceedings or appeals before the Adjudicating Authority, NCLAT, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal, where a period of limitation for initiation of proceedings is provided under any special or local law, different from the period prescribed by the Schedule, the provisions of Section 3 shall apply, as if such period were the period prescribed by the Schedule. It would further reveal, that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive), shall apply only in so far, and to the extent to which, they are not expressly excluded by such special or local law.40. In the present case, the dates are not in dispute. The judgment of NCLT is dated 28.11.2019. As such, as per Section 61(2) of the I&B Code, the appeal was required to be filed on or prior to 28.12.2019. The appeal could have been filed within a further period of fifteen days, if NCLAT was satisfied, that there was sufficient cause for not filing the appeal within a period of thirty days. As such, the said period would come to an end on 12.1.2020. The certified copy of the impugned judgment of NCLT was made available on 18.12.2019. If the allowance for the said period is granted, the appeal should have been preferred on or prior to 2.2.2020. However, in the present case, the appeal is filed on 18.2.2020. It is also not in dispute, that immediately after the order was passed on 28.11.2019 by NCLT, KIAL preferred a writ petition being Writ Petition (L) No. 3621 of 2019 before the Division Bench of the Bombay High Court on 11.12.2019. The said writ petition came to be dismissed on 28.1.2020 on the ground, that KIAL had an alternate and efficacious remedy available under Section 61 of the I&B Code and as such, it was relegated to the alternate remedy available in law.45. The conditions that are required to be fulfilled for invoking the provisions of Section 14 of the Limitation Act have been succinctly spelt out in various judgments of this Court including the one in Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department and others (2008) 7 SCC 169 , which read thus:21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service:(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;(2) The prior proceeding had been prosecuted with due diligence and in good faith;(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;(4) The earlier proceeding and the latter proceeding must relate to the same matter in issue; and(5) Both the proceedings are in a court.46. Perusal of the aforesaid conditions would make it amply clear, that one of the conditions that is required to be fulfilled is that both the proceedings are in a court. The question as to whether the provisions of Section 14 of the Limitation Act would also be applicable to the quasi-judicial forums as against the court, fell for consideration before this Court in the case of M.P. Steel Corporation (supra). This Court after an elaborate survey of the various judgments of this Court, including judgment in the cases of Bharat Bank Ltd., Delhi vs. Employees of the Bharat Bank Ltd., Delhi AIR 1950 SC 188 = 1950 SCR 459 , Town Municipal Council, Athani vs. Presiding Officer, Labour Courts, Hubli and others etc. (1969) 1 SCC 873 , Nityananda M. Joshi and others vs. Life Insurance Corporation of India and others (1969) 2 SCC 199 , Commissioner of Sales Tax. U.P., Lucknow vs. Parson Tools and Plants, Kanpur (1975) 4 SCC 22 , Kerala State Electricity Board, Trivandrum vs. T.P. Kunhaliumma (1976) 4 SCC 634 , Officer on Special Duty (Land Acquisition) and another vs. Shah Manilal Chandulal and others (1996) 9 SCC 414 and Consolidated Engineering Enterprises (supra) held, that the word court in Section 14 takes its colour from the preceding words civil proceedings. It was therefore held, that the Limitation Act including Section 14 would not apply to appeals filed before a quasi-judicial Tribunal. It was held, that since the appeal as mentioned in Section 128 of the Customs Act is not before a Court, the provisions of Section 14 would not be applicable.47. All the authorities cited above, including Consolidated Engineering Enterprises (supra), have been elaborately discussed in the judgment of this Court in the case of M.P. Steel Corporation (supra) and therefore, we refrain from burdening the present judgment by reproducing the observations made in those judgments.48. This Court in M.P. Steel Corporation (supra) further observed, that the judgment of this Court in the case of Commissioner of Sales Tax, U.P. vs. Madan Lal Das & Sons, Bareilly(1976) 4 SCC 464 had not considered the law laid down in Parson Tools and Plants (supra) and the other judgments nor the aforesaid decisions were pointed out to the Court and therefore, the said judgment in the case of Madan Lal Das & Sons (supra) was not an authority for the proposition, that the Limitation Act would apply to Tribunals.49. After having held, that the Limitation Act, including Section 14 would not apply to appeals filed before a quasi-judicial Tribunal, this Court in M.P. Steel Corporation (supra) observed thus:….However, this does not conclude the issue. There is authority for the proposition that even where Section 14 may not apply, the principles on which Section 14 is based, being principles which advance the cause of justice, would nevertheless apply. We must never forget, as stated in Bhudan Singh v. Nabi Bux [(1969) 2 SCC 481 : (1970) 2 SCR 10 ] that justice and reason is at the heart of all legislation by Parliament. This was put in very felicitous terms by Hegde, J. as follows (SCC p. 485, para 9)9. Before considering the meaning of the word held in Section 9, it is necessary to mention that it is proper to assume that the lawmakers who are the representatives of the people enact laws which the society considers as honest, fair and equitable. The object of every legislation is to advance public welfare. In other words as observed by Crawford in his book on Statutory Constructions that the entire legislative process is influenced by considerations of justice and reason. Justice and reason constitute the great general legislative intent in every piece of legislation. Consequently where the suggested construction operates harshly, ridiculously or in any other manner contrary to prevailing conceptions of justice and reason, in most instances, it would seem that the apparent or suggested meaning of the statute, was not the one intended by the lawmakers. In the absence of some other indication that the harsh or ridiculous effect was actually intended by the legislature, there is little reason to believe that it represents the legislative intent.39. This is why the principles of Section 14 were applied in J. Kumaradasan Nair v. Iric Sohan [(2009) 12 SCC 175 : (2009) 4 SCC (Civ) 656] to a revision application filed before the High Court of Kerala. The Court held: (SCC pp. 180-81, paras 16-18)16. The provisions contained in Sections 5 and 14 of the Limitation Act are meant for grant of relief where a person has committed some mistake. The provisions of Sections 5 and 14 of the Limitation Act alike should, thus, be applied in a broadbased manner. When sub-section (2) of Section 14 of the Limitation Act per se is not applicable, the same would not mean that the principles akin thereto would not be applied. Otherwise, the provisions of Section 5 of the Limitation Act would apply. There cannot be any doubt whatsoever that the same would be applicable to a case of this nature.17. There cannot furthermore be any doubt whatsoever that having regard to the definition of suit as contained in Section 2(l) of the Limitation Act, a revision application will not answer the said description. But, although the provisions of Section 14 of the Limitation Act per se are not applicable, in our opinion, the principles thereof would be applicable for the purpose of condonation of delay in filing an appeal or a revision application in terms of Section 5 thereof.18. It is also now a well-settled principle of law that mentioning of a wrong provision or non-mentioning of any provision of law would, by itself, be not sufficient to take away the jurisdiction of a court if it is otherwise vested in it in law. While exercising its power, the court will merely consider whether it has the source to exercise such power or not. The court will not apply the beneficent provisions like Sections 5 and 14 of the Limitation Act in a pedantic manner. When the provisions are meant to apply and in fact found to be applicable to the facts and circumstances of a case, in our opinion, there is no reason as to why the court will refuse to apply the same only because a wrong provision has been mentioned. In a case of this nature, sub-section (2) of Section 14 of the Limitation Act per se may not be applicable, but, as indicated hereinbefore, the principles thereof would be applicable for the purpose of condonation of delay in terms of Section 5 thereof.40. The Court further quoted from Consolidated Engg. Enterprises [(2008) 7 SCC 169] an instructive passage: (Iric Sohan case [(2009) 12 SCC 175 : (2009) 4 SCC (Civ) 656] , SCC p. 183, para 21)21. In Consolidated Engg. Enterprises v. Irrigation Deptt. [(2008) 7 SCC 169] this Court held: (SCC p. 181, para 22)22. The policy of the section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying the said section, namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because the court is unable to give him such a trial, would not be applicable to an application filed under Section 34 of the 1996 Act. The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or (sic of) law or defect of procedure. Having regard to the intention of the legislature this Court is of the firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded.See Shakti Tubes Ltd. v. State of Bihar [(2009) 1 SCC 786 : (2009) 1 SCC (Civ) 370] .50. Thus, this Court relying on the earlier judgments in the cases of Bhudan Singh and another vs. Nabi Bux and another (1969) 2 SCC 481 , J. Kumaradasan Nair and another vs. Iric Sohan and others (2009) 12 SCC 175 , and Consolidated Engineering Enterprises (supra) observed, that the object of enacting the legislation is to advance public welfare. The entire legislative process is influenced by considerations of justice and reason. Justice and reason constitute the great general legislative intent in every piece of legislation. It has been held by this Court, that in the absence of some other indication that the harsh or ridiculous effect was actually intended by the legislature, there is little reason to believe, that it represents the legislative intent. It is further observed, that the provisions contained in Sections 5 and 14 of the Limitation Act are meant for grant of relief, where a person has committed some mistake. In J. Kumaradasan Nair (supra), it has been observed, that when sub-section (2) of Section 14 of the Limitation Act per se is not applicable, the same would not mean, that the principles akin thereto would not be applicable.52. An argument similar to the one which is advanced before us, that since the Code is a complete Code in itself, the limitation as provided only under the Code would govern the field and would exclude the application of provisions of Section 14 of the Limitation Act was made in the case of M.P. Steel Corporation (supra). While considering this objection, this Court observed thus:42. However, it remains to consider whether Shri Sanghi is right in stating that Section 128 is a complete code by itself which necessarily excludes the application of Section 14 of the Limitation Act. For this proposition he relied strongly on Parson Tools [(1975) 4 SCC 22 : 1975 SCC (Tax) 185 : (1975) 3 SCR 743 ] which has been discussed hereinabove. As has already been stated, Parson Tools [(1975) 4 SCC 22 : 1975 SCC (Tax) 185 : (1975) 3 SCR 743 ] was a judgment which turned on the three features mentioned in the said case. Unlike the U.P. Sales Tax Act, there is no provision in the Customs Act which enables a party to invoke suo motu the appellate power and grant relief to a person who institutes an appeal out of time in an appropriate case. Also, Section 10 of the U.P. Sales Tax Act dealt with the filing of a revision petition after a first appeal had already been rejected, and not to a case of a first appeal as provided under Section 128 of the Customs Act. Another feature, which is of direct relevance in this case, is that for revision petitions filed under the U.P. Sales Tax Act a sufficiently long period of 18 months had been given beyond which it was the policy of the legislature not to extend limitation any further. This aspect of Parson Tools [(1975) 4 SCC 22 : 1975 SCC (Tax) 185 : (1975) 3 SCR 743 ] has been explained in Consolidated Engg. [(2008) 7 SCC 169] in some detail by both the main judgment as well as the concurring judgment. In the latter judgment, it has been pointed out that there is a vital distinction between extending time and condoning delay. Like Section 34 of the Arbitration Act, Section 128 of the Customs Act is a section which lays down that delay cannot be condoned beyond a certain period. Like Section 34 of the Arbitration Act, Section 128 of the Customs Act does not lay down a long period. In these circumstances, to infer exclusion of Section 14 or the principles contained in Section 14 would be unduly harsh and would not advance the cause of justice. It must not be forgotten as is pointed out in the concurring judgment in Consolidated Engg. [(2008) 7 SCC 169] that: (SCC p. 193, para 54)54. … Even when there is cause to apply Section 14, the limitation period continues to be three months and not more, but in computing the limitation period of three months for the application under Section 34(1) of the AC Act, the time during which the applicant was prosecuting such application before the wrong court is excluded, provided the proceeding in the wrong court was prosecuted bona fide, with due diligence. Western Builders [State of Goa v. Western Builders, (2006) 6 SCC 239 ] therefore lays down the correct legal position.43. Merely because Parson Tools [(1975) 4 SCC 22 : 1975 SCC (Tax) 185 : (1975) 3 SCR 743 ] also dealt with a provision in a tax statute does not make the ratio of the said decision apply to a completely differently worded tax statute with a much shorter period of limitation— Section 128 of the Customs Act. Also, the principle of Section 14 would apply not merely in condoning delay within the outer period prescribed for condonation but would apply dehors such period for the reason pointed out in Consolidated Engg. [(2008) 7 SCC 169] above, being the difference between exclusion of a certain period altogether under Section 14 principles and condoning delay. As has been pointed out in the said judgment, when a certain period is excluded by applying the principles contained in Section 14, there is no delay to be attributed to the appellant and the limitation period provided by the statute concerned continues to be the stated period and not more than the stated period. We conclude, therefore, that the principle of Section 14 which is a principle based on advancing the cause of justice would certainly apply to exclude time taken in prosecuting proceedings which are bona fide and with due diligence pursued, which ultimately end without a decision on the merits of the case.53. Perusal of the aforesaid would therefore reveal, that the Court has clearly rejected the objection raised by the Revenue in M.P. Steel Corporation (supra) which was raised relying on the judgment of this Court in the case ofParson Tools and Plants (supra). This Court observed, that the time during which the applicant was prosecuting such application before the wrong court can be excluded, provided the proceeding in the wrong court was prosecuted bona fide, with due diligence. This Court distinguished the judgment in the case of Parson Tools and Plants (supra) on the ground, that the period provided for filing a revision under the U.P. Sales Tax Act was sufficiently long period of 18 months, beyond which it was the policy of the legislature not to extend limitation any further. Relying on the Consolidated Engineering Enterprises (supra), it has been observed, that there is a vital distinction between extending time and condoning delay. It was further observed, that like Section 34 of the Arbitration Act, the period provided in Section 128 of the Customs Act did not lay down a long period for preferring an appeal. As such, it would be unduly harsh to exclude the principles contained in Section 14 of the Limitation Act. Relying on Consolidated Engineering Enterprises (supra) it was observed, that there is a difference between exclusion of a certain period altogether under principles of Section 14 and condoning the delay. It has been observed, that when a certain period is excluded by applying the principles contained in Section 14, there is no delay to be attributed to the appellant and the limitation period provided by the statute concerned, continues to be the stated period and not more than the stated period. It was therefore held, that the principle of section 14, which is a principle based on advancing the cause of justice would certainly apply to exclude time taken in prosecuting proceedings which are bona fide and pursued with due diligence but which end without a decision on the merits of the case.54. Coming to the facts of the present case, immediately after NCLT pronounced its judgment on 28.11.2019 and even before the certified copy was made available on 18.12.2019, KIAL had filed writ petition before the Division Bench of the Bombay High Court on 11.12.2019 on the principal ground, that the procedure followed by NCLT was in breach of principles of natural justice. Such a ground could be legitimately pursued before a writ court. In that sense, it was not a proceeding before a wrong court, as such. Perusal of the judgment and order dated 28.1.2020, passed by the Division Bench of the Bombay High Court, which dismissed the writ petition on the ground of availability of alternate and equally efficacious remedy would reveal, that the said writ petition was hotly contested between the parties and by an order running into 32 pages, the Division Bench of the Bombay High Court dismissed the petition relegating the petitioner therein (i.e. KIAL) to avail of an alternate remedy available in law.55. Perusal of the memo of the writ petition would reveal, that the petitioner (i.e. KIAL) has specifically averred thus in the petition:2. By way of present Petition seeks to challenge order dated 28th November 2019 passed by Honble National Company Law Tribunal – Bench – II, Mumbai (NCLT) on Misc. Application No.1039 of 2019 filed by the present Petitioner. The NCLT, in gross abuse of process of law and in complete disregard of true and actual circumstances has proceeded to pass the impugned order. The order impugned is passed by bench of two members, Honble M.K. Sharawat (Judicial) and Honble Chandra Bhan Singh (Technical) on 28th November, 2019. However, the matter was heard and reserved for orders on 03rd July, 2019, by Honble Member, Shri M.K. Sharawat (Judicial). At the relevant point of time, when the matter was heard and argued, Honble Chandra Bhan Singh (Technical) was not even appointed as Member of NCLT and never had occasion to hear and adjudicate upon the Application filed by the Petitioner. It is not just the Application filed by the Petitioner but 3 other Applications which are disposed off by the common order were not heard by the bench who has passed the order. This is not just contrary to law but demonstrate that the entire process of passing the orders was in an absolute mechanical manner. Annexed hereto and marked as EXHIBIT A is the copy of the order dated 28th November 2019 passed by NCLT on Miscellaneous Application No. 1039 of 2019.56. It could therefore be seen, that the petitioner KIAL has specifically stated, that though the application of the petitioner was heard by a Member (Judicial), the order was passed by a Division Bench consisting of Member (Judicial) as well as Member (Technical). Perusal of the grounds would further reveal, that a specific ground has been taken, that the procedure adopted by NCLT was in breach of principles of natural justice.58. It could thus clearly be seen, that the petitioner therein i.e. KIAL has specifically stated, that though it had an alternate remedy of filing an appeal before NCLAT, since the petition was not just about the merits of the impugned order, but also in respect of functioning of the Tribunal the petitioner was invoking the writ jurisdiction of the Court.59. By now, it is a settled principle of law, that non- exercise of jurisdiction by the High Court under Article 226 of the Constitution is not a hard and fast rule, but a rule of self-restraint. As early as in 1969, in the case of Babu Ram Prakash Chandra Maheshwari (supra), this Court observed thus:It is a well-established proposition of law that when an alternative and equally effi- cacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the ju-risdiction of the High Court to issue a writ. But, as observed by this Court in Rashid Ahmed v. The Municipal Board, Kairana [(1950) SCR 566] , the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a rem- edy exists it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefore. But it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self imposed limitation, a rule of policy, and discretion rather than a rule of law and the court may therefore in excep- tional cases issue a writ such as a writ of certiorari notwithstanding the fact that the statutory remedies have not been ex- hausted.60. This Court further laid down two well recognized exceptions to the doctrine with regard to the exhaustion of statutory remedies, which reads thus:There are at least two well-recognised exceptions to .the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well-settled that where proceedings are taken before a Tri- bunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the High Court un- der Art. 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course.--(See the decisions of this Court in Carl Still G.m.b.H. v. The State of Bihar [A.I.R. 1961 S.C. 1615] and The Bengal Immunity Co. Ltd. v. The State Bihar [(1955) 2 S.C.R. 603]. In the second place, the doctrine has no appli- cation in a case where the impugned or- der has been made in violation of the principles of natural justice (See The State of Uttar Pradesh v. Mohammad Nooh [(1958) S.C.R. 595].61. It has been clearly held, that when the proceedings invoked before a statutory authority are de hors the jurisdiction or when they are in breach of principles of natural justice, the party would be entitled to invoke the jurisdiction of the High Court under Article 226 of the Constitution.62. Referring to earlier judgments, this Court in the case of Whirlpool Corporation (supra) observed thus:15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.64. In the present case, perusal of the writ petition would reveal, that it was the specific case of KIAL, that its application, objecting to the application of RP for approval of the resolution plan was heard by a Member (Judicial), whereas, the final orders were passed by a Bench consisting of Member (Judicial) and Member (Technical). It has specifically averred, that though an alternate remedy was available to it, it was invoking the jurisdiction of the High Court since the question involved was also with regard to the manner in which the jurisdiction was exercised by NCLT. It could thus be seen, that KIAL was bona fide prosecuting the proceedings before the High Court in good faith. Perusal of the dates referred to herein above would also reveal, that KIAL was prosecuting the proceedings before the High Court with due diligence. Even before the availability of the certified copy, it had knocked the doors of the High Court. The matter before the High Court was hotly contested and ultimately, the petition was dismissed by an elaborate judgment relegating KIAL to the alternate remedy available to it in law. As such, the conditions which enable a party to invoke the provisions of Section 14 of the Limitation Act are very much available to KIAL. If the period during which KIAL was bona fide prosecuting the writ petition before the High Court and that too with due diligence, is excluded applying the principles underlying Section 14 of the Limitation Act, the appeals filed before NCLAT would be very much within the limitation. We find, that KIAL would be entitled to exclusion of the period during which it was bona fide prosecuting the remedy before the High Court with due diligence.66. In the case of Popular Construction Co. (supra) this Court was considering the question as to whether the provisions of Section 5 of the Limitation Act are applicable to an application challenging an award under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Arbitration Act). This Court observed thus:14. Here the history and scheme of the 1996 Act support the conclusion that the time-limit prescribed under Section 34 to challenge an award is absolute and unex- tendible by court under Section 5 of the Limitation Act. The Arbitration and Con- ciliation Bill, 1995 which preceded the 1996 Act stated as one of its main objec- tives the need to minimise the supervi- sory role of courts in the arbitral process [ Para 4(v) of the Statement of Objects and Reasons of the Arbitration and Con- ciliation Act, 1996] . This objective has found expression in Section 5 of the Act which prescribes the extent of judicial in- tervention in no uncertain terms:5. Extent of judicial intervention.— Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.67. It must be noticed, that the judgment in the case of Popular Construction Co. (supra) was considered by this Court by a Bench consisting of three Judges in the case of Consolidated Engineering Enterprises (supra) wherein, the question with regard to applicability of Section 14 of the Limitation Act to an application under Section 34(3) of the Arbitration Act fell for consideration. In Consolidated Engineering Enterprises (supra), the appellant before this Court was an enterprise engaged in civil engineering construction as well as development of infrastructure. It entered into an agreement with the respondent for construction of earthen bund, head sluices and the draft channel of the Y.G. Gudda tank. A dispute arose between the parties and therefore, the appellant invoked arbitration Clause 51 of the agreement. The dispute was referred to the sole arbitrator who passed his award in favour of the appellant. Feeling aggrieved by the said award, the respondents preferred an application to set aside the said award as provided by Section 34 of the Arbitration Act in the Court of the Civil Judge (Senior Division), Ramanagaram, Bangalore Rural District, Bangalore. However, it was realised by the respondents, that an application for setting aside the award should have been filed before the Principal District Judge, Bangalore District (Rural). As such, an application was preferred by the respondents in the Court of the Civil Judge (Senior Division), Ramanagaram with a request to transfer the application made for setting aside the award to the Court of the Principal District Judge (Rural), Bangalore.68. The Civil Judge (Senior Division), Ramanagaram passed an order directing return of the suit records for presentation before the proper court. The respondents therefore collected the papers from the Court of the Civil Judge (Senior Division), Ramanagaram and presented the same in the Court of the Principal District Judge, Bangalore (Rural). The District Court framed a preliminary issue, as to whether the suit was barred by the limitation under Section 34(3) of the Arbitration Act. The District Judge held, the application for setting aside the award to be time-barred. The respondents invoked the appellate jurisdiction of the High Court of Karnataka at Bangalore. The Division Bench of the Karnataka High Court held, that the District Judge, Bangalore had committed an error in holding, that Section 14 of the Limitation Act was not applicable to an application submitted under Section 34 of the Act. It was therefore held, that the time taken during which the respondents had been prosecuting in the Court of the Civil Judge (Senior Division), Ramanagaram was excludable.69. Feeling aggrieved, the appellant had approached this Court. Panchal, J. speaking for himself and Balakrishna, C.J. (as their Lordships then were) observed thus:27. The contention that in view of the decision of the Division Bench of this Court in Union of India v. Popular Construction Co. [(2001) 8 SCC 470] the Court should hold that the provisions of Section 14 of the Limitation Act would not apply to an application filed under Section 34 of the Act, is devoid of substance. In the said decision what is held is that Section 5 of the Limitation Act is not applicable to an application challenging an award under Section 34 of the Act. Section 29(2) of the Limitation Act inter alia provides that where any special or local law prescribes, for any application, a period of limitation different from the period prescribed by the Schedule, the provisions contained in Sections 4 to 24 shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law. On introspection, the Division Bench of this Court held that the provisions of Section 5 of the Limitation Act are not applicable to an application challenging an award. This decision cannot be construed to mean as ruling that the provisions of Section 14 of the Limitation Act are also not applicable to an application challenging an award under Section 34 of the Act. As noticed earlier, in the Act of 1996, there is no express provision excluding application of the provisions of Section 14 of the Limitation Act to an application filed under Section 34 of the Act for challenging an award.28. Further, there is fundamental distinction between the discretion to be exercised under Section 5 of the Limitation Act and exclusion of the time provided in Section 14 of the said Act. The power to excuse delay and grant an extension of time under Section 5 is discretionary whereas under Section 14, exclusion of time is mandatory, if the requisite conditions are satisfied. Section 5 is broader in its sweep than Section 14 in the sense that a number of widely different reasons can be advanced and established to show that there was sufficient cause in not filing the appeal or the application within time. The ingredients in respect of Sections 5 and 14 are different. The effect of Section 14 is that in order to ascertain what is the date of expiration of the prescribed period, the days excluded from operating by way of limitation, have to be added to what is primarily the period of limitation prescribed. Having regard to all these principles, it is difficult to hold that the decision in Popular Construction Co. [(2001) 8 SCC 470] rules that the provisions of Section 14 of the Limitation Act would not apply to an application challenging an award under Section 34 of the Act.70. This Court clearly held, that the decision in the case of the Popular Construction Co. (supra) cannot be construed to mean as a ruling, that provisions of Section 14 of the Limitation Act are also not applicable to an application challenging an award under Section 34 of the Act. It has been held, that in the Arbitration Act, there is no express provision excluding application of the provisions of Section 14 of the Limitation Act to an application filed under Section 34 of the Arbitration Act for challenging the award. It has further been found, that there is fundamental distinction between the discretion to be exercised under Section 5 of the Limitation Act and exclusion of the time provided in Section 14 of the said Act. It was held, that the power to excuse delay and grant an extension of time under Section 5 is discretionary, whereas under Section 14, exclusion of time is mandatory, if the requisite conditions are satisfied. It held, that the effect of Section 14 is that in order to ascertain what is the date of expiration of the prescribed period, the days excluded from operating by way of limitation, have to be added to what is primarily the period of limitation prescribed.71. Raveendran, J. (as His Lordship then was) in his concurring judgment observed thus:54. On the other hand, Section 14 contained in Part III of the Limitation Act does not relate to extension of the period of limitation, but relates to exclusion of certain period while computing the period of limitation. Neither sub-section (3) of Section 34 of the AC Act nor any other provision of the AC Act exclude the applicability of Section 14 of the Limitation Act to applications under Section 34(1) of the AC Act. Nor will the proviso to Section 34(3) exclude the application of Section 14, as Section 14 is not a provision for extension of period of limitation, but for exclusion of certain period while computing the period of limitation. Having regard to Section 29(2) of the Limitation Act, Section 14 of that Act will be applicable to an application under Section 34(1) of the AC Act. Even when there is cause to apply Section 14, the limitation period continues to be three months and not more, but in computing the limitation period of three months for the application under Section 34(1) of the AC Act, the time during which the applicant was prosecuting such application before the wrong court is excluded, provided the proceeding in the wrong court was prosecuted bona fide, with due diligence. Western Builders [(2006) 6 SCC 239] therefore lays down the correct legal position.73. As such, in view of the judgment of three Judges Bench of this Court in the case of Consolidated Engineering Enterprises (supra), the reliance placed by the appellants on the judgment of this Court in Popular Construction Co. (supra) would not be of any assistance.74. Reliance is also placed on the judgment of this Court in the case of Singh Enterprises (supra) wherein, the question raised was with regard to applicability of the provisions of Section 5 of the Limitation Act to an appeal filed under Section 35 of the Central Excise Act, 1944. Again, the said judgment deals with applicability of Section 5 and not of Section 14 of the Limitation Act and therefore would not support the case of the appellants.75. Similarly, reliance placed by the learned counsel for the appellants on the judgment of this Court in the case of Commissioner of Customs and Central Excise vs. Hongo India Private Limited and another (2009) 5 SCC 791, would also not help the appellants inasmuch as, the question, that fell for consideration there was, with regard to the applicability of Section 5 of the Limitation Act to a reference application provided under Section 35-H(1) of the unamended Central Excise Act, 1944.76. For the same reasons, the judgment of this Court in the case of Chhattisgarh State Electricity Board (supra) would also not take the case of the appellants any further inasmuch as, again the question, that fell for consideration was, with regard to applicability of Section 5 of the Limitation Act to an appeal under Section 125 of the Electricity Act, 2003.77. For the same reasons, we find, that the judgment relied on by the appellants in the case of Bengal Chemists and Druggists Association vs. Kalyan Chowdhury (2018) 3 SCC 41 would also not be applicable to the facts of the present case inasmuch as, the said judgment also considered the applicability of Section 5 of the Limitation Act to an appeal to the Appellate Tribunal provided under Section 421(3) and 433 of the Companies Act, 2013.78. The judgment of this Court in the case of Neeraj Jhanji (supra) would not be applicable to the facts of the present case. In the said case, the petitioner had initially filed a writ petition before the Delhi High Court against the order-in-original passed by the Commissioner of Customs, Kanpur. Delhi High Court converted the writ petition into a statutory appeal under the Customs Act, 1962 by order dated 9-11-2009. On 9-9-2010 the Revenue raised an objection about the territorial jurisdiction of that Court. On 5-1-2012 the petitioner withdrew the appeal with liberty to approach the jurisdictional High Court and then filed a statutory appeal before the Allahabad High Court after a delay of 697 days. It will be relevant to refer to the following observations in Neeraj Jhanji (supra):3. The very filing of writ petition by the petitioner in the Delhi High Court against the order-in-original passed by the Com- missioner of Customs, Kanpur indicates that the petitioner took a chance in ap- proaching the High Court at Delhi which had no territorial jurisdiction in the mat- ter. We are satisfied that filing of the writ petition or for that matter, appeal before the Delhi High Court was not at all bona fide. We are in agreement with the obser- vations made by the Allahabad High Court in the impugned order [Neeraj Jhanji v. CCE & Customs, Custom Appeal Defective 16 of 2012, order dated 6-8- 2012 (All)] . The Allahabad High Court has rightly dismissed the petitioners ap-plication of condonation of delay and con- sequently the appeal as time barred.79. It is thus clear, that this Court found, that the petitioner therein had adopted tactics of taking chances by approaching High Court of Delhi, which had no territorial jurisdiction. As such, it was found, that neither the writ petition nor the appeal before the Delhi High Court could be construed to be a bona fide. It was further noticed, that there was an inordinate delay of 697 days. It is thus apparent, that the petitioner therein had not satisfied the necessary conditions for applicability of Section 14.80. In the present case, as already discussed herein above, the petitioner was bona fide prosecuting his remedy before the High Court and that too with due diligence. As such, the said judgment also would be of no avail to the case of the appellants.81. The judgment of this Court in the case of Ketan V. Parekh (supra) is relied upon by both the parties. The question, that arose for consideration in the said case was with regard to applicability of Section 14 of the Limitation Act to an Appeal from Order of an Appellate Tribunal as provided under Section 35 of the Foreign Exchange Management Act, 1999. This Court relying on the earlier judgment in the case of Consolidated Engineering Enterprises (supra) and State of Goa vs. Western Builders (2006) 6 SCC 239 held, that Section 14 can be invoked in an appropriate case for exclusion of the time, during which the aggrieved person may have prosecuted with due diligence a remedy before a wrong forum. However, on facts and on the averments made in the pleadings, this Court came to the conclusion, that there was not even a whisper in the applications filed by the appellants, that they had been prosecuting remedy before a wrong forum i.e. the Delhi High Court with due diligence and in good faith. It will be relevant to refer to the following paragraphs of the said judgment.32. There is another reason why the benefit of Section 14 of the Limitation Act cannot be extended to the appellants. All of them are well conversant with various statutory provisions including FEMA. One of them was declared a notified person under Section 3(2) of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 and several civil and criminal cases are pending against him. The very fact that they had engaged a group of eminent advocates to present their cause before the Delhi and the Bombay High Courts shows that they have the assistance of legal experts and this seems to be the reason why they invoked the jurisdiction of the Delhi High Court and not of the Bombay High Court despite the fact that they are residents of Bombay and have been contesting other matters including the proceedings pending before the Special Court at Bombay. It also appears that the appellants were sure that keeping in view their past conduct, the Bombay High Court may not interfere with the order of the Appellate Tribunal. Therefore, they took a chance before the Delhi High Court and succeeded in persuading the learned Single Judge of the Court to entertain their prayer for stay of further proceedings before the Appellate Tribunal. The promptness with which the learned Senior Counsel appearing for the appellant, Kartik K. Parekh made a statement before the Delhi High Court on 7-11-2007 that the writ petition may be converted into an appeal and considered on merits is a clear indication of the appellants unwillingness to avail remedy before the High Court i.e. the Bombay High Court which had the exclusive jurisdiction to entertain an appeal under Section 35 of the Act.33. It is not possible to believe that as on 7-11-2007, the appellants and their advocates were not aware of the judgment of this Court in Ambica Industries v. CCE [(2007) 6 SCC 769] whereby dismissal of the writ petition by the Delhi High Court on the ground of lack of territorial jurisdiction was confirmed and it was observed that the parties cannot be allowed to indulge in forum shopping. It has not at all surprised us that after having made a prayer that the writ petitions filed by them be treated as appeals under Section 35, two of the appellants filed applications for recall of that order. No doubt, the learned Single Judge accepted their prayer and the Division Bench confirmed the order of the learned Single Judge but the manner in which the appellants prosecuted the writ petitions before the Delhi High Court leaves no room for doubt that they had done so with the sole object of delaying compliance with the direction given by the Appellate Tribunal and by no stretch of imagination it can be said that they were bona fide prosecuting remedy before a wrong forum. Rather, there was total absence of good faith, which is sine qua non for invoking Section 14 of the Limitation Act.82. It is thus clear, that the appellants therein were indulging into a practice of taking chances. They had approached Delhi High Court, which totally lacked territorial jurisdiction and had not approached Bombay High Court though they were residents of Bombay and had been contesting other matters including the proceedings pending before the Special Court at Bombay. It has been observed, that keeping in view their past conduct, Bombay High Court might not have interfered with the order of the Appellate Tribunal. Therefore, they took a chance before Delhi High Court and succeeded in persuading the learned Single Judge of that Court to entertain their prayer for stay of further proceedings before the Appellate Tribunal. This Court further observed, that the promptness with which the statement was made on behalf of the appellants, that the writ petition may be converted into an appeal was a clear indication of the appellants unwillingness to avail remedy before the High Court of Bombay which had the exclusive jurisdiction to entertain an appeal under Section 35 of the Act.83. In the present case, the facts are totally contrary. KIAL had approached the High Court of Bombay making a specific grievance, that NCLT had adopted a procedure which was in breach of the principles of natural justice. It is specifically mentioned in the writ petition, that though an alternate remedy was available to it, it was approaching the High Court since the issue with regard to functioning of NCLT also fell for consideration. The proceedings before the High Court were hotly contested and by an elaborate judgment, the High Court dismissed the writ petition relegating the petitioner therein i.e. KIAL to an alternate remedy available in law. It is thus apparently clear, that KIAL was bona fide prosecuting a remedy before the High Court in good faith and with due diligence. In a given case, the High Court could have exercised jurisdiction under Article 226 of the Constitution inasmuch as, the grievance was regarding procedure followed by NCLT to be in breach of principles of natural justice. That would come within the limited area earmarked by this Court for exercise of extraordinary jurisdiction under Article 226 despite availability of an alternate remedy.84. This Court recently in the judgment of Embassy Property Developments Pvt. Ltd. vs. State of Karnataka and Others 2019 SCC Online 1542 had an occasion to consider a similar issue. We find it apposite to refer to the question framed by this Court, which reads thus:i) Whether the High Court ought to interfere, under Article 226/227 of the Constitution, with an order passed by the National Company Law Tribunal in a proceeding under the Insolvency and Bankruptcy Code, 2016, ignoring the availability of a statutory remedy of appeal to the National Company Law Appellate Tribunal and if so, under what circumstances.85. It will also be apposite to reproduce the answer given by this Court.47. Therefore, in fine, our answer to the first question would be that NCLT did not have jurisdiction to entertain an application against the Government of Karnataka for a direction to execute Supplemental Lease Deeds for the extension of the mining lease. Since NCLT chose to exercise a jurisdiction not vested in it in law, the High Court of Karnataka was justified in entertaining the writ petition, on the basis that NCLT was coram non judice.We therefore have no hesitation to hold, that KIAL was entitled to extension of the period during which it was bona fide prosecuting a remedy before the High Court with due diligence.93. In this respect, it will be relevant to refer to paragraphs 89 and 90 of the judgment of this Court in the case of Central Inland Water Transport Corporation Limited and another vs. Brojo Nath Ganguly and another (1986) 3 SCC 156. 89. Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of 19th century theories? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample underfoot the rights of the weak? We have a Constitution for our country. Our judges are bound by their oath to uphold the Constitution and the laws. The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In todays complex world of giant corporations with their vast infrastructural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances.94. This Court has held, that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It has been held, that this principle will apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be.95. Applying the said principles to the facts of the present case, KIAL had no choice than to accept the terms of the contract. Paragraph 5(b) of the letter is a part of a covering letter format, which is provided in the Process Memorandum itself. The covering letter is in Format I and the party desiring to participate in the Resolution Plan Process has no other option, than to sign the dotted lines. Hence, the parties cannot be said to have equal bargaining power and the applicants have no other choice than to sign on the documents prescribed in the format. Paragraph 5(b) of the covering letter format, requires a party to undertake, that it will accept all the decisions made by CoC, RP and/or the Adjudicating Authority and that the decisions taken will be binding on it. It also requires the applicant, to sign on the document thereby, providing expressly waiving any and all claims with respect to the Resolution Plan Process. In turn, it provides for a party to agree to a stipulation, that even if RP or CoC acts in any manner, which is not permissible in law, still the resolution applicant would be bound by such a decision and shall waive any or all its claims in respect of the Resolution Plan Process.97. No doubt, that this Court in Central Inland Water Transport Corporation Limited (supra) has observed, that the principle laid down therein may not apply where both parties are businessmen and the contract is a commercial transaction. In the first place, RP and the resolution applicant cannot be said to be the contracting parties having equal bargaining power. Secondly, since RP functions under the I&B Code for discharging the duties bestowed upon him and assisting the process for finalization of resolution plan for survival of the Corporate Debtor, it cannot be said that it is a purely commercial transaction between RP and the resolution applicant.98. It may be argued, that the judgment in the case of Central Inland Water Transport Corporation Limited (supra) arose from a case involving a statutory corporation, which was an instrumentality of State within the meaning of Article 12 of the Constitution. However, recently, this Court in the case of Pioneer Urban Land and Infrastructure Limited vs. Govindan Raghavan (2019) 5 SCC 725 while construing the term of contract between a builder and a flat purchaser observed thus:6.8. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the agreement dated 8-5-2012 are ex facie one-sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(1)(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the builder.99. We see no reason, as to why the said principle should not be applicable when RP and CoC are acting under the statutory provisions under the Code.100. We are therefore of the view, in light of the law laid down in Central Inland Water Transport Corporation Limited (supra), KIAL cannot be held to be bound by such unconscionable clause in the letter, which is in a prescribed format.101. The second ground raised, with regard to waiver and acquiescence, is based upon the participation of KIAL in the Resolution Plan Process after Kalpraj was permitted to participate in the proceedings.111. This Court in the case of State of Punjab vs. Davinder Pal Singh Bhullar and others (2011) 14 SCC 770 had an occasion to consider an issue, as to when an issue of bias was not raised by the party at the earliest possible, if it is aware of it and knows its right to raise the said issue, would it amount to waiver or not. This Court while considering the earlier judgments observed thus:II. Doctrine of waiver37. In Manak Lal [AIR 1957 SC 425 ] this Court held that alleged bias of a Judge/official/Tribunal does not render the proceedings invalid if it is shown that the objection in that regard and particularly against the presence of the said official in question, had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of its right to challenge the presence of such official. The Court further observed that: (SCC p. 431, para 8)8. … waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question.38. Thus, in a given case if a party knows the material facts and is conscious of his legal rights in that matter, but fails to take the plea of bias at the earlier stage of the proceedings, it creates an effective bar of waiver against him. In such facts and circumstances, it would be clear that the party wanted to take a chance to secure a favourable order from the official/court and when he found that he was confronted with an unfavourable order, he adopted the device of raising the issue of bias. The issue of bias must be raised by the party at the earliest. (See Pannalal Binjraj v. Union of India [AIR 1957 SC 397 ] and P.D. Dinakaran (1) v. Judges Enquiry Committee [(2011) 8 SCC 380] .)39. In Power Control Appliances v. Sumeet Machines (P) Ltd. [(1994) 2 SCC 448] this Court held as under: (SCC p. 457, para 26)26. Acquiescence is sitting by, when another is invading the rights…. It is a course of conduct inconsistent with the claim…. It implies positive acts; not merely silence or inaction such as involved in laches. … The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the defendant….40. Inaction in every case does not lead to an inference of implied consent or acquiescence as has been held by this Court in P. John Chandy & Co. (P) Ltd. v. John P. Thomas [(2002) 5 SCC 90] . Thus, the Court has to examine the facts and circumstances in an individual case.41. Waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. In fact, it is an agreement not to assert a right. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionallyabandonsthem. (Vide Dawsons Bank Ltd. v. Nippon Menkwa Kabushiki Kaisha [(1934-35) 62 IA 100 : AIR 1935 PC 79 ] , Basheshar Nath v. CIT [AIR 1959 SC 149 ] , Mademsetty Satyanarayana v. G. Yelloji Rao5 SC 1405] , Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh [AIR 1968 SC 933 ] , Jaswantsingh Mathurasingh v. Ahmedabad Municipal Corpn. [1992 Supp (1) SCC 5] , Sikkim Subba Associates v. State of Sikkim [(2001) 5 SCC 629 : AIRC 2062] and Krishna Bahadur v. Purna Theatre [(2004) 8 SCC 229 : 2004 SCC (L&S) 1086 : AIR 2004 SC 4282 ] .)42. This Court in Municipal Corpn. of Greater Bombay v. Dr Hakimwadi Tenants Assn. [1988 Supp SCC 55 : AIR 1988 SC 233 ] considered the issue of waiver/acquiescence by the non- parties to the proceedings and held: (SCC p. 65, paras 14-15)14. In order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case. …15. There is no question of estoppel, waiver or abandonment. There is no specific plea of waiver, acquiescence or estoppel, much less a plea of abandonment of right. That apart, the question of waiver really does not arise in the case. Admittedly, the tenants were not parties to the earlier proceedings. There is, therefore, no question of waiver of rights by Respondents 4-7 nor would this disentitle the tenants from maintaining the writ petition.43. Thus, from the above, it is apparent that the issue of bias should be raised by the party at the earliest, if it is aware of it and knows its right to raise the issue at the earliest, otherwise it would be deemed to have been waived. However, it is to be kept in mind that acquiescence, being a principle of equity must be made applicable where a party knowing all the facts of bias, etc. surrenders to the authority of the Court/Tribunal without raising any objection. Acquiescence, in fact, is sitting by, when another is invading the rights. The acquiescence must be such as to lead to the inference of a licence sufficient to create rights in other party.112. Thus, for constituting acquiescence or waiver it must be established, that though a party knows the material facts and is conscious of his legal rights in a given matter, but fails to assert its rights at the earliest possible opportunity, it creates an effective bar of waiver against him. Whereas, acquiescence would be a conduct where a party is sitting by, when another is invading his rights. The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the defendant. Waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege. It is an agreement not to assert a right. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them. | 1 | 33,290 | 12,089 | ### Instruction:
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amount of Rs.120.54 crore in addition to Rs.477 crore and deposit the said amount in escrow account within 30 days, the order of approval of the resolution plan was to be treated to be set aside. While allowing the appeal and setting aside the directions of NCLAT, this Court observed thus: 30. The appellate authority has, in our opinion, proceeded on equitable perception rather than commercial wisdom. On the face of it, release of assets at a value 20% below its liquidation value arrived at by the valuers seems inequitable. Here, we feel the Court ought to cede ground to the commercial wis- dom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the adjudicating authority has to be satisfied that the requirement of sub-section (2) of Section 30 of the Code has been com- plied with. The proviso to Section 31(1) of the Code stipulates the other point on which an adjudicating authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the adjudicating authority in limited judicial review has been laid down in Essar Steel [Essar Steel India Ltd. Commit- tee of Creditors v. Satish Kumar Gupta, (2020) 8 SCC 531 ] , the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more funds. In such circumstances, we do not think the appellate authority ought to have interfered with the order of the adjudicating authority in direct- ing the successful resolution applicant to en- hance their fund inflow upfront. 154. This Court observed, that the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. This Court clearly held, that the appellate authority ought not to have interfered with the order of the adjudicating authority by directing the successful resolution applicant to enhance their fund inflow upfront. 155. It would thus be clear, that the legislative scheme, as interpreted by various decisions of this Court, is unambiguous. The commercial wisdom of CoC is not to be interfered with, excepting the limited scope as provided under Sections 30 and 31 of the I&B Code. 156. No doubt, it is sought to be urged, that since there has been a material irregularity in exercise of the powers by RP, NCLAT was justified in view of the provisions of clause (ii) of sub-section (3) of Section 61 of the I&B Code to interfere with the exercise of power by RP. However, it could be seen, that all actions of RP have the seal of approval of CoC. No doubt, it was possible for RP to have issued another Form G, in the event he found, that the proposals received by it prior to the date specified in last Form G could not be accepted. However, it has been the consistent stand of RP as well as CoC, that all actions of RP, including acceptance of resolution plans of Kalpraj after the due date, albeit before the expiry of timeline specified by the I&B Code for completion of the process, have been consciously approved by CoC. It is to be noted, that the decision of CoC is taken by a thumping majority of 84.36%. The only creditor voted in favour of KIAL is Kotak Bank, which is a holding company of KIAL, having voting rights of 0.97%. We are of the considered view, that in view of the paramount importance given to the decision of CoC, which is to be taken on the basis of commercial wisdom, NCLAT was not correct in law in interfering with the commercial decision taken by CoC by a thumping majority of 84.36%. 157. It is further to be noted, that after the resolution plan of Kalpraj was approved by NCLT on 28.11.2019, Kalpraj had begun implementing the resolution plan. NCLAT had heard the appeals on 27.2.2020 and reserved the same for orders. It is not in dispute, that there was no stay granted by NCLAT, while reserving the matters for orders. After a gap of five months and eight days, NCLAT passed the final order on 5.8.2020. It could thus be seen, that for a long period, there was no restraint on implementation of the resolution plan of Kalpraj, which was duly approved by NCLT. It is the case of Kalpraj, RP, CoC and Deutsche Bank, that during the said period, various steps have been taken by Kalpraj by spending a huge amount for implementation of the plan. No doubt, this is sought to be disputed by KIAL. However, we do not find it necessary to go into that aspect of the matter in light of our conclusion, that NCLAT acted in excess of jurisdiction in interfering with the conscious commercial decision of CoC. 158. It is also pointed out, that in pursuance of the order dated 5.8.2020 passed by NCLAT, CoC has approved the resolution plan of KIAL on 13.8.2020. However, since we have already held, that the decision of NCLAT dated 5.8.2020 does not stand the scrutiny of law, it must follow, that the subsequent approval of the resolution plan of KIAL by CoC becomes non-est in law. For, it was only to abide by the directions of NCLAT. We are of the view that nothing would turn on it. The decision of CoC dated 13/14.2.2019 is a decision, which has been taken in exercise of its commercial wisdom. As such, we hold, that the decision taken by CoC dated 13/14.2.2019, which is taken in accordance with its commercial wisdom and which is duly approved by NCLT, will prevail. Further, NCLAT was not justified in interfering with the stated decision taken by CoC.
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is shown that the objection in that regard and particularly against the presence of the said official in question, had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of its right to challenge the presence of such official. The Court further observed that: (SCC p. 431, para 8)8. … waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question.38. Thus, in a given case if a party knows the material facts and is conscious of his legal rights in that matter, but fails to take the plea of bias at the earlier stage of the proceedings, it creates an effective bar of waiver against him. In such facts and circumstances, it would be clear that the party wanted to take a chance to secure a favourable order from the official/court and when he found that he was confronted with an unfavourable order, he adopted the device of raising the issue of bias. The issue of bias must be raised by the party at the earliest. (See Pannalal Binjraj v. Union of India [AIR 1957 SC 397 ] and P.D. Dinakaran (1) v. Judges Enquiry Committee [(2011) 8 SCC 380] .)39. In Power Control Appliances v. Sumeet Machines (P) Ltd. [(1994) 2 SCC 448] this Court held as under: (SCC p. 457, para 26)26. Acquiescence is sitting by, when another is invading the rights…. It is a course of conduct inconsistent with the claim…. It implies positive acts; not merely silence or inaction such as involved in laches. … The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the defendant….40. Inaction in every case does not lead to an inference of implied consent or acquiescence as has been held by this Court in P. John Chandy & Co. (P) Ltd. v. John P. Thomas [(2002) 5 SCC 90] . Thus, the Court has to examine the facts and circumstances in an individual case.41. Waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. In fact, it is an agreement not to assert a right. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionallyabandonsthem. (Vide Dawsons Bank Ltd. v. Nippon Menkwa Kabushiki Kaisha [(1934-35) 62 IA 100 : AIR 1935 PC 79 ] , Basheshar Nath v. CIT [AIR 1959 SC 149 ] , Mademsetty Satyanarayana v. G. Yelloji Rao5 SC 1405] , Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh [AIR 1968 SC 933 ] , Jaswantsingh Mathurasingh v. Ahmedabad Municipal Corpn. [1992 Supp (1) SCC 5] , Sikkim Subba Associates v. State of Sikkim [(2001) 5 SCC 629 : AIRC 2062] and Krishna Bahadur v. Purna Theatre [(2004) 8 SCC 229 : 2004 SCC (L&S) 1086 : AIR 2004 SC 4282 ] .)42. This Court in Municipal Corpn. of Greater Bombay v. Dr Hakimwadi Tenants Assn. [1988 Supp SCC 55 : AIR 1988 SC 233 ] considered the issue of waiver/acquiescence by the non- parties to the proceedings and held: (SCC p. 65, paras 14-15)14. In order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case. …15. There is no question of estoppel, waiver or abandonment. There is no specific plea of waiver, acquiescence or estoppel, much less a plea of abandonment of right. That apart, the question of waiver really does not arise in the case. Admittedly, the tenants were not parties to the earlier proceedings. There is, therefore, no question of waiver of rights by Respondents 4-7 nor would this disentitle the tenants from maintaining the writ petition.43. Thus, from the above, it is apparent that the issue of bias should be raised by the party at the earliest, if it is aware of it and knows its right to raise the issue at the earliest, otherwise it would be deemed to have been waived. However, it is to be kept in mind that acquiescence, being a principle of equity must be made applicable where a party knowing all the facts of bias, etc. surrenders to the authority of the Court/Tribunal without raising any objection. Acquiescence, in fact, is sitting by, when another is invading the rights. The acquiescence must be such as to lead to the inference of a licence sufficient to create rights in other party.112. Thus, for constituting acquiescence or waiver it must be established, that though a party knows the material facts and is conscious of his legal rights in a given matter, but fails to assert its rights at the earliest possible opportunity, it creates an effective bar of waiver against him. Whereas, acquiescence would be a conduct where a party is sitting by, when another is invading his rights. The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the defendant. Waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege. It is an agreement not to assert a right. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them.
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Raja Bahadur Kamakhya Narain Singh Vs. Commissioner Of Income-Tax Bihar And Orissa | to 1944. These indicate that the gold price remained steady at Rs. 42 per tola all throughout 1940. There was, however, an upward trend noticeable from about the end of 1941 which went up to Rs. 65 towards the end of 1942. By the middle of 1943 the gold price had risen to Rs. 90 and even more. In October, 1944, when the assessee sold a large bulk of his gold holding, the price was at Rs. 68 per tola. If the idea of the assessee in purchasing the gold was to trade in it, he would not have waited for 4 years without disposing of a particle of it. The price was on the upward trend in 1941 and reached the climax in 1943 when he could have sold the gold and made considerable gain. The fact that he did not do so and waited until October 1944 appears to give credence to his case that by about the end of 1944 the war fortunes were turning in favour of the allies, that confidence had gradually been regained by trading circles and that that was why he thought that it was no longer necessary for him to retain the gold any further and could safely invest his money in income bearing securities. The further fact that he sold practically the whole of his stock of gold in October, l944 instead of selling it bit by bit when the price was rising since about the end of 1942 is inconsistent with the hypothesis that the object with which the gold was purchased was to trade in it.18. Regarding share transactions, we think that the Tribunal placed undue emphasis on the fact that when he opened the bank account in March 1939 with the sale proceeds of Government securities, he did so, firstly, in the name of his wife and secondly, called that account as one of "Rs. 48 lace floating in the share market". The first had no particular significance and the second properly viewed only meant that he wanted to set apart this fund for transactions in shares and securities and not mix up his other capital and the income arising from his estate. The name he gave to this account cannot for that reason only render his dealings with that account into trading transaction, if otherwise, they were not.19. Similarly, the Tribunal was unduly impressed by the fact that he sold away the Victory Bonds within about two months from their purchase. The correspondence produced by the assessee clearly shows that he had bought those Bonds at the pressure of the then Commissioner. The Bonds were not likely to fetch him the yield he desired. His purchase of them had thus served the purpose, viz., his showing to the authorities that his estate had made a war contribution. The sale by him of those Bonds would not affect the Government or its war effort. The fact that he sold them soon after the purchase would not invest it with the stamp of trade or business in Victory Bonds.20. As regards the Karanpura shares, the correspondence between him and the company and the advice he had from his brokers referred to in the Statement of Case show that the assessee did at one time entertain the idea of obtaining control over the companys management by procuring 51 per cent of its total shares. He could do so by purchasing shares in the open market and also by other means. He purchased 7025 shares in the market but that was clearly not enough. There was at that time litigation going on between him and the company and he seems to have hit upon the idea that he would compromise his suit if the managing agents of the company were to sell him shares representing its unissued capital at prices offered by him. The object of his offer was that he would not have to pay the market price of the shares which was 3 times more than the one offered by him. The company did not agree and his move for compromise failed. According to him, there was, therefore, no useful purpose for retaining those shares and he sold 6950 shares leaving only 75 shares with him. On these facts the Tribunal was not right in concluding that the shares which the assessee purchased from the market were not for the purpose of acquiring the major share-holding in the company and that the control over the company was to be obtained only by purchasing shares representing the unissued capital. Both the purchase of shares and the move to obtain shares representing the unissued capital were part of the same design and if the latter failed, his purchase of 7025 shares would obviously not bring him nearer his object. Furthermore the bulk of the sale proceeds of gold went into the purchase of Bokaro Ramgur shares which remained with him till the assessment years in question. The profits made on the sale of shares, acquired with the intention of obtaining control over the companys management and not for dealing in them, would be on the capital and not revenue account.(see Kishan Prasad and Company Limited v. C. I. T. (1955) 27 ITR 49 = (AIR 1955 SC 252 )and C. I. T. v. National Finance Limited, (1962) 44 ITR 788 = (AIR 1963 SC 835 ). The Statement of Case itself set out facts which were consistent with the assessees case.21. In our view the Tribunal misdirected itself in applying the law to the facts found by it both in the matter of gold and shares, and the High Court would have been entitled to interfere with its findings instead of holding that it could not do so as the findings were findings of fact. The questions involved being mixed questions of fact and law, the hypothesis on which the High Court acted that the findings were purely findings of fact and therefore, were unassailable was in our view not correct. | 1[ds]That the question, whether an assessee carries on business or when the certain transactions are in the course of business or whether they amount to adventures in the nature of trade or business, is a mixed question of fact and law is well settled. The decision in Venkataswami Naidu and Co. v. C.I.T. (l959) 35 ITR 594 at pp. 603 to 604 = (AIR 1959 SC 359 at pp. 363, 364) is an instance in point where this Court observed that the expression adventure in the nature of trade appearing in the definition of "business" implies the existence of certain elements in the adventure which in law would invest it with the character of trade and that renders the question whether a transaction is in the nature of trade a mixed question of law and fact and the High Court in such a case would interfere if the Tribunal had misdirected itself in. It is fairly clear that where a person in selling his investment realises an enhanced price, the excess over his purchase price is not profit assessable to tax. But it would be so if what is done is not a mere realisation of the investment but an act done for making profits. The distinction between the two types of transactions is not always easy to make. The distinction whether the transaction is of one kind or the other depends on the question whether the excess was an enhancement of the value by realising a security or a gain in an operation of profitThough the assessee was at the material time a landholder of a large estate, that fact by itself would not mean that his transactions in shares, securities and bullion cannot be transactions in the nature ofhad, therefore, to be examined in the light of all the facts and circumstances to ascertain whether they had been entered into in pursuit of a trading activity. The first relevant fact is that the assessees occupation was that of a landholder, having, on attaining majority, a considerable amount of money available for raising income therefrom. The transactions in question were obviously not in the line of any business or trade carried on bye was nothing on record to show, nor did the Tribunal find, that that was the case with the shares of either of the two companies whose shares the assesses purchased in such large quantity. Prima facie, these transactions would appear in the nature of investments and their conversion into what the assesses believed to be better investments as the circumstances changed from time tocorrespondence lends support to the assessees case inasmuch as he had therein clearly instructed his brokers to invest the sale proceeds of the said Government securities in such a way as to give him an annual yield of net 7 per cent. There can be no doubt that Government securities were sold accordingly and shares of certain companies were purchased from their sale proceeds in accordance with the advice of his brokers and bankers. When it was found that certain shares so purchased were not likely to yield the percentage he desired, they were sold within hardly a month from their purchase. The circumstances in which these transactions were brought about, would disclose as was held by the previous Tribunal in the case of the earlier assessments, that the assessees intention then was to change his investments from Government securities into shares and debentures which, he was advised, would procure him a better yield. This conclusion is consistent with his sale of the entire lot of Government securities at a time, his going in for shares with their sale proceeds and the sale in October 1939 of certain shares which were found incapable of giving the return hethe only new materials pointed out by the Tribunal from which a different conclusion could be arrived at were (1) the sale of gold in 1944 and 1945, (2) the purchase of the said shares from its sale proceeds, and (3) the sale of Karanpurathe only new materials pointed out by the Tribunal from which a different conclusion could be arrived at were (1) the sale of gold in 1944 and 1945, (2) the purchase of the said shares from its sale proceeds, and (3) the sale of Karanpurathe only new materials pointed out by the Tribunal from which a different conclusion could be arrived at were (1) the sale of gold in 1944 and 1945, (2) the purchase of the said shares from its sale proceeds, and (3) the sale of KaranpuraAs regards the Karanpura shares, the correspondence between him and the company and the advice he had from his brokers referred to in the Statement of Case show that the assessee did at one time entertain the idea of obtaining control over the companys management by procuring 51 per cent of its total shares. He could do so by purchasing shares in the open market and also by other means. He purchased 7025 shares in the market but that was clearly not enough. There was at that time litigation going on between him and the company and he seems to have hit upon the idea that he would compromise his suit if the managing agents of the company were to sell him shares representing its unissued capital at prices offered by him. The object of his offer was that he would not have to pay the market price of the shares which was 3 times more than the one offered by him. The company did not agree and his move for compromise failed. According to him, there was, therefore, no useful purpose for retaining those shares and he sold 6950 shares leaving only 75 shares with him. On these facts the Tribunal was not right in concluding that the shares which the assessee purchased from the market were not for the purpose of acquiring the major share-holding in the company and that the control over the company was to be obtained only by purchasing shares representing the unissued capital. Both the purchase of shares and the move to obtain shares representing the unissued capital were part of the same design and if the latter failed, his purchase of 7025 shares would obviously not bring him nearer his object. Furthermore the bulk of the sale proceeds of gold went into the purchase of Bokaro Ramgur shares which remained with him till the assessment years in question. The profits made on the sale of shares, acquired with the intention of obtaining control over the companys management and not for dealing in them, would be on the capital and not revenueStatement of Case itself set out facts which were consistent with the assesseesStatement of Case itself set out facts which were consistent with the assessees | 1 | 6,513 | 1,214 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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to 1944. These indicate that the gold price remained steady at Rs. 42 per tola all throughout 1940. There was, however, an upward trend noticeable from about the end of 1941 which went up to Rs. 65 towards the end of 1942. By the middle of 1943 the gold price had risen to Rs. 90 and even more. In October, 1944, when the assessee sold a large bulk of his gold holding, the price was at Rs. 68 per tola. If the idea of the assessee in purchasing the gold was to trade in it, he would not have waited for 4 years without disposing of a particle of it. The price was on the upward trend in 1941 and reached the climax in 1943 when he could have sold the gold and made considerable gain. The fact that he did not do so and waited until October 1944 appears to give credence to his case that by about the end of 1944 the war fortunes were turning in favour of the allies, that confidence had gradually been regained by trading circles and that that was why he thought that it was no longer necessary for him to retain the gold any further and could safely invest his money in income bearing securities. The further fact that he sold practically the whole of his stock of gold in October, l944 instead of selling it bit by bit when the price was rising since about the end of 1942 is inconsistent with the hypothesis that the object with which the gold was purchased was to trade in it.18. Regarding share transactions, we think that the Tribunal placed undue emphasis on the fact that when he opened the bank account in March 1939 with the sale proceeds of Government securities, he did so, firstly, in the name of his wife and secondly, called that account as one of "Rs. 48 lace floating in the share market". The first had no particular significance and the second properly viewed only meant that he wanted to set apart this fund for transactions in shares and securities and not mix up his other capital and the income arising from his estate. The name he gave to this account cannot for that reason only render his dealings with that account into trading transaction, if otherwise, they were not.19. Similarly, the Tribunal was unduly impressed by the fact that he sold away the Victory Bonds within about two months from their purchase. The correspondence produced by the assessee clearly shows that he had bought those Bonds at the pressure of the then Commissioner. The Bonds were not likely to fetch him the yield he desired. His purchase of them had thus served the purpose, viz., his showing to the authorities that his estate had made a war contribution. The sale by him of those Bonds would not affect the Government or its war effort. The fact that he sold them soon after the purchase would not invest it with the stamp of trade or business in Victory Bonds.20. As regards the Karanpura shares, the correspondence between him and the company and the advice he had from his brokers referred to in the Statement of Case show that the assessee did at one time entertain the idea of obtaining control over the companys management by procuring 51 per cent of its total shares. He could do so by purchasing shares in the open market and also by other means. He purchased 7025 shares in the market but that was clearly not enough. There was at that time litigation going on between him and the company and he seems to have hit upon the idea that he would compromise his suit if the managing agents of the company were to sell him shares representing its unissued capital at prices offered by him. The object of his offer was that he would not have to pay the market price of the shares which was 3 times more than the one offered by him. The company did not agree and his move for compromise failed. According to him, there was, therefore, no useful purpose for retaining those shares and he sold 6950 shares leaving only 75 shares with him. On these facts the Tribunal was not right in concluding that the shares which the assessee purchased from the market were not for the purpose of acquiring the major share-holding in the company and that the control over the company was to be obtained only by purchasing shares representing the unissued capital. Both the purchase of shares and the move to obtain shares representing the unissued capital were part of the same design and if the latter failed, his purchase of 7025 shares would obviously not bring him nearer his object. Furthermore the bulk of the sale proceeds of gold went into the purchase of Bokaro Ramgur shares which remained with him till the assessment years in question. The profits made on the sale of shares, acquired with the intention of obtaining control over the companys management and not for dealing in them, would be on the capital and not revenue account.(see Kishan Prasad and Company Limited v. C. I. T. (1955) 27 ITR 49 = (AIR 1955 SC 252 )and C. I. T. v. National Finance Limited, (1962) 44 ITR 788 = (AIR 1963 SC 835 ). The Statement of Case itself set out facts which were consistent with the assessees case.21. In our view the Tribunal misdirected itself in applying the law to the facts found by it both in the matter of gold and shares, and the High Court would have been entitled to interfere with its findings instead of holding that it could not do so as the findings were findings of fact. The questions involved being mixed questions of fact and law, the hypothesis on which the High Court acted that the findings were purely findings of fact and therefore, were unassailable was in our view not correct.
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trade a mixed question of law and fact and the High Court in such a case would interfere if the Tribunal had misdirected itself in. It is fairly clear that where a person in selling his investment realises an enhanced price, the excess over his purchase price is not profit assessable to tax. But it would be so if what is done is not a mere realisation of the investment but an act done for making profits. The distinction between the two types of transactions is not always easy to make. The distinction whether the transaction is of one kind or the other depends on the question whether the excess was an enhancement of the value by realising a security or a gain in an operation of profitThough the assessee was at the material time a landholder of a large estate, that fact by itself would not mean that his transactions in shares, securities and bullion cannot be transactions in the nature ofhad, therefore, to be examined in the light of all the facts and circumstances to ascertain whether they had been entered into in pursuit of a trading activity. The first relevant fact is that the assessees occupation was that of a landholder, having, on attaining majority, a considerable amount of money available for raising income therefrom. The transactions in question were obviously not in the line of any business or trade carried on bye was nothing on record to show, nor did the Tribunal find, that that was the case with the shares of either of the two companies whose shares the assesses purchased in such large quantity. Prima facie, these transactions would appear in the nature of investments and their conversion into what the assesses believed to be better investments as the circumstances changed from time tocorrespondence lends support to the assessees case inasmuch as he had therein clearly instructed his brokers to invest the sale proceeds of the said Government securities in such a way as to give him an annual yield of net 7 per cent. There can be no doubt that Government securities were sold accordingly and shares of certain companies were purchased from their sale proceeds in accordance with the advice of his brokers and bankers. When it was found that certain shares so purchased were not likely to yield the percentage he desired, they were sold within hardly a month from their purchase. The circumstances in which these transactions were brought about, would disclose as was held by the previous Tribunal in the case of the earlier assessments, that the assessees intention then was to change his investments from Government securities into shares and debentures which, he was advised, would procure him a better yield. This conclusion is consistent with his sale of the entire lot of Government securities at a time, his going in for shares with their sale proceeds and the sale in October 1939 of certain shares which were found incapable of giving the return hethe only new materials pointed out by the Tribunal from which a different conclusion could be arrived at were (1) the sale of gold in 1944 and 1945, (2) the purchase of the said shares from its sale proceeds, and (3) the sale of Karanpurathe only new materials pointed out by the Tribunal from which a different conclusion could be arrived at were (1) the sale of gold in 1944 and 1945, (2) the purchase of the said shares from its sale proceeds, and (3) the sale of Karanpurathe only new materials pointed out by the Tribunal from which a different conclusion could be arrived at were (1) the sale of gold in 1944 and 1945, (2) the purchase of the said shares from its sale proceeds, and (3) the sale of KaranpuraAs regards the Karanpura shares, the correspondence between him and the company and the advice he had from his brokers referred to in the Statement of Case show that the assessee did at one time entertain the idea of obtaining control over the companys management by procuring 51 per cent of its total shares. He could do so by purchasing shares in the open market and also by other means. He purchased 7025 shares in the market but that was clearly not enough. There was at that time litigation going on between him and the company and he seems to have hit upon the idea that he would compromise his suit if the managing agents of the company were to sell him shares representing its unissued capital at prices offered by him. The object of his offer was that he would not have to pay the market price of the shares which was 3 times more than the one offered by him. The company did not agree and his move for compromise failed. According to him, there was, therefore, no useful purpose for retaining those shares and he sold 6950 shares leaving only 75 shares with him. On these facts the Tribunal was not right in concluding that the shares which the assessee purchased from the market were not for the purpose of acquiring the major share-holding in the company and that the control over the company was to be obtained only by purchasing shares representing the unissued capital. Both the purchase of shares and the move to obtain shares representing the unissued capital were part of the same design and if the latter failed, his purchase of 7025 shares would obviously not bring him nearer his object. Furthermore the bulk of the sale proceeds of gold went into the purchase of Bokaro Ramgur shares which remained with him till the assessment years in question. The profits made on the sale of shares, acquired with the intention of obtaining control over the companys management and not for dealing in them, would be on the capital and not revenueStatement of Case itself set out facts which were consistent with the assesseesStatement of Case itself set out facts which were consistent with the assessees
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N.B. Mirzan Vs. Disciplinary Committee of The Bar Council of Maharashtra | respondent No. 2, nor did she read the paper she signed as a witness and further admitted that she was not aware of the contents of that writing. Both the Disciplinary Committees have held that Ext. 2 was not a genuine document and we are satisfied that this finding is correct.9. Corroboration is further found in what happened later in 1964 after disputes started between respondent No. 2 and the appellant. In about October, 1964, the disputes, according to respondent No. 2, were settled in the presence of one Mr. Qureshi and the appellant agreed to pay Rs. 1000/- to respondent No. 2 by instalments of Rs. 150/- per month. Accordingly, the first instalment was sent to respondent No. 2 by money order on 11th October, 1964, and it is admitted by the appellant that he had sent the money order for Rs. 150/-. He, however, explained that respondent No. 2 along with a social worker had seen the appellant on 10th October, 1964 and requested him for a loan. Out of pity, the appellant says, he sent the money order in question by way of loan on 11th October, 1964. The explanation was regarded by both the Committees as false, because, under the circumstances of the case and in view of the bitter disputes between the parties, it was extremely unlikely that the appellant would make any loan to respondent No. 2. On the other hand, Shri Mardan Ali Quereshi has corroborated respondent No. 2 and stated that in his presence the dispute had been settled between the appellant and respondent No. 2 and the appellant had agreed to pay the amount of Rupees 1000/- in instalments of Rupees 150/- per month. The story of the loan has been rejected by both the committees and the evidence of respondent No. 2 and Quereshi has been accepted, in which case it is impossible to believe that the appellant had returned the sum of Rs. 975/- to respondent No 2 as far back as 13th September, 1962.We, therefore agree with the concurrent finding of both the Committees that the appellant had demanded and received Rs. 975/- from respondent No. 2s wife Khurshid Begum on a false representation that the amount was required to be deposited in Court and thereafter misappropriated the same.10. The third item is of rupees 250/-. There is no dispute that this amount was received by the appellant either from respondent No. 2 or his wife. Respondent No. 2 says that it was received from his wife during his absence. The Receipt Ext. B, however, is made in the name of respondent No. 2. The contents of the Receipt themselves go to support respondent No. 2s case that this amount had been paid, because the appellant had represented that the amount was required for transferring the rent bill in respect of the premises in the name of respondent No. 2. The amount was received by the appellant on 16thAugust, 1962, i.e., much before the obstructionist notice had been discharged. The appellant had great difficulty in explaining what this Receipt meant. In the notices exchanged in 1964, the appellant had denied altogether having received this sum of Rs. 250/- for the purpose of the transfer of the rent bill. In the written statement before the State Disciplinary Committee, the appellant did not categorically deny the receipt of Rs. 250/-. He suggested there that he had been instructed by respondent No. 2 to file a declaratory suit for transferring rent bill in his name. One does not know what this really means. The obstructionist proceedings were still pending and one does not know what kind of proceedings could be taken in a court of law for transferring the rent bill. It is not the case that there were any negotiations with the landlord for transferring the rent bill in the name of respondent No. 2. Then again, if any such suit was to be filed, the appellant and his client would have thought about it only after the obstructionist proceedings had come to an end and not in August, 1962. In his evidence, the appellant stated that this amount of Rs. 250/- had been paid to him by respondent No 2 of his own accord and the appellant had never suggested that any declaratory suit was required to be filed. This is rather a tall story. Seeing that the story was unconvincing, the appellant changed his case later and stated that this sum of Rs. 250/- was paid to him towards the court-fees in respect of the intended declaratory suit, his fees and other pocket expenses. That explanation is also false, because it is nobodys case that any such declaratory suit was ever filed. It is, hence, clear that the appellant was not at all able to explain why he demanded this amount of Rs. 250/-. The conclusion is irresistible that he must have represented that this amount was required to pay somebody for the purposes of transferring the bill of the suit premises in the name of respondent No. 2, knowing quite well that it was impossible to secure a transfer of the rent bill in legal proceedings in court. The amount had been screwed out by the appellant on a false representation for the purposes of misappropriation. In our opinion, the findings of both the Disciplinary Committees were right and unexceptionable. Normally this Court does not entertain an appeal from a concurrent finding of facts. We have, however, gone through the facts to satisfy ourselves that no injustice has been done.11. The State Disciplinary Committee had permanently debarred the appellant from practising as an Advocate, but, in appeal, the Disciplinary Committee of the Bar Council of India has taken a more lenient view and suspended the appellant from practice for a period of five years on condition that he pays respondent No. 2 Rs. 850/- within two months. No argument was addressed to us on the question of punishment, Therefore, it is not necessary to consider the point. | 0[ds]Therefore, there was really no occasion at all on 26th April, 1962 for the appellant making a demand for the amount from respondent No. 2s wife and receiving the same for the ostensible purpose of depositing the amount in Court. It is obvious that he obtained this amount on a false pretext and, when such a demand is made on a false pretext, the inference would naturally follow that the demand had been made with a view to misappropriate the amount.The State Disciplinary Committee had permanently debarred the appellant from practising as an Advocate, but, in appeal, the Disciplinary Committee of the Bar Council of India has taken a more lenient view and suspended the appellant from practice for a period of five years on condition that he pays respondent No. 2 Rs. 850/within two months. No argument was addressed to us on the question of punishment, Therefore, it is not necessary to consider the point.Corroboration is further found in what happened later in 1964 after disputes started between respondent No. 2 and the appellant. In about October, 1964, the disputes, according to respondent No. 2, were settled in the presence of one Mr. Qureshi and the appellant agreed to pay Rs. 1000/to respondent No. 2 byinstalments of Rs. 150/per month. Accordingly, the first instalment was sentto respondent No. 2 bymoney order on 11th October, 1964, and it is admitted by the appellant that he had sent the money order for Rs.He, however, explained that respondent No. 2 along with a social worker had seen the appellant on 10th October, 1964 and requested him for a loan. Out of pity, the appellant says, he sent the money order in question by way of loan on 11th October, 1964. The explanation was regarded by both the Committees as false, because, under the circumstances of the case and in view of the bitter disputes between the parties, it was extremely unlikely that the appellant would make any loan to respondent No. 2. On the other hand, Shri Mardan Ali Quereshi has corroborated respondent No. 2 and stated that in his presence the dispute had been settled between the appellant and respondent No. 2 and the appellant had agreed to pay the amount of Rupees 1000/in instalments of Rupees 150/per month. The story of the loan has been rejected by both the committees and the evidence of respondent No. 2 and Quereshi has been accepted, in which case it is impossible to believe that the appellant had returned the sum of Rs. 975/to respondent No 2 as far back as 13th September, 1962.We, therefore agree with the concurrent finding of both the Committees that the appellant had demanded and received Rs. 975/from respondent No. 2s wife Khurshid Begum on a false representation that the amount was required to be deposited in Court and thereafter misappropriated the same.10. The third item is of rupeesThere is no dispute that this amount was received by the appellant either from respondent No. 2 or his wife. Respondent No. 2 says that it was received from his wife during his absence. The Receipt Ext. B, however, is made in the name of respondent No. 2. The contents of the Receipt themselves go to support respondent No. 2s case that this amount had been paid, because the appellant had represented that the amount was required for transferring the rent bill in respect of the premises in the name of respondent No. 2. The amount was received by the appellant on 16thAugust, 1962, i.e., much before the obstructionist notice had been discharged. The appellant had great difficulty in explaining what this Receipt meant. In the notices exchanged in 1964, the appellant had denied altogether having received this sum of Rs. 250/for the purpose of the transfer of the rent bill. In the written statement before the State Disciplinary Committee, the appellant did not categorically deny the receipt of Rs.He suggested there that he had been instructed by respondent No. 2 to file a declaratory suit for transferring rent bill in his name. One does not know what this really means. The obstructionist proceedings were still pending and one does not know what kind of proceedings could be taken in a court of law for transferring the rent bill. It is not the case that there were any negotiations with the landlord for transferring the rent bill in the name of respondent No. 2. Then again, if any such suit was to be filed, the appellant and his client would have thought about it only after the obstructionist proceedings had come to an end and not in August, 1962. In his evidence, the appellant stated that this amount of Rs. 250/had been paid to him by respondent No 2 of his own accord and the appellant had never suggested that any declaratory suit was required to be filed. This is rather a tall story. Seeing that the story was unconvincing, the appellant changed his case later and stated that this sum of Rs. 250/was paid to him towards thein respect of the intended declaratory suit, his fees and other pocket expenses. That explanation is also false, because it is nobodys case that any such declaratory suit was ever filed. It is, hence, clear that the appellant was not at all able to explain why he demanded this amount of Rs.The conclusion is irresistible that he must have represented that this amount was required to pay somebody for the purposes of transferring the bill of the suit premises in the name of respondent No. 2, knowing quite well that it was impossible to secure a transfer of the rent bill in legal proceedings in court. The amount had been screwed out by the appellant on a false representation for the purposes of misappropriation. In our opinion, the findings of both the Disciplinary Committees were right and unexceptionable. Normally this Court does not entertain an appeal from a concurrent finding of facts. We have, however, gone through the facts to satisfy ourselves that no injustice has been done. | 0 | 4,011 | 1,118 | ### Instruction:
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respondent No. 2, nor did she read the paper she signed as a witness and further admitted that she was not aware of the contents of that writing. Both the Disciplinary Committees have held that Ext. 2 was not a genuine document and we are satisfied that this finding is correct.9. Corroboration is further found in what happened later in 1964 after disputes started between respondent No. 2 and the appellant. In about October, 1964, the disputes, according to respondent No. 2, were settled in the presence of one Mr. Qureshi and the appellant agreed to pay Rs. 1000/- to respondent No. 2 by instalments of Rs. 150/- per month. Accordingly, the first instalment was sent to respondent No. 2 by money order on 11th October, 1964, and it is admitted by the appellant that he had sent the money order for Rs. 150/-. He, however, explained that respondent No. 2 along with a social worker had seen the appellant on 10th October, 1964 and requested him for a loan. Out of pity, the appellant says, he sent the money order in question by way of loan on 11th October, 1964. The explanation was regarded by both the Committees as false, because, under the circumstances of the case and in view of the bitter disputes between the parties, it was extremely unlikely that the appellant would make any loan to respondent No. 2. On the other hand, Shri Mardan Ali Quereshi has corroborated respondent No. 2 and stated that in his presence the dispute had been settled between the appellant and respondent No. 2 and the appellant had agreed to pay the amount of Rupees 1000/- in instalments of Rupees 150/- per month. The story of the loan has been rejected by both the committees and the evidence of respondent No. 2 and Quereshi has been accepted, in which case it is impossible to believe that the appellant had returned the sum of Rs. 975/- to respondent No 2 as far back as 13th September, 1962.We, therefore agree with the concurrent finding of both the Committees that the appellant had demanded and received Rs. 975/- from respondent No. 2s wife Khurshid Begum on a false representation that the amount was required to be deposited in Court and thereafter misappropriated the same.10. The third item is of rupees 250/-. There is no dispute that this amount was received by the appellant either from respondent No. 2 or his wife. Respondent No. 2 says that it was received from his wife during his absence. The Receipt Ext. B, however, is made in the name of respondent No. 2. The contents of the Receipt themselves go to support respondent No. 2s case that this amount had been paid, because the appellant had represented that the amount was required for transferring the rent bill in respect of the premises in the name of respondent No. 2. The amount was received by the appellant on 16thAugust, 1962, i.e., much before the obstructionist notice had been discharged. The appellant had great difficulty in explaining what this Receipt meant. In the notices exchanged in 1964, the appellant had denied altogether having received this sum of Rs. 250/- for the purpose of the transfer of the rent bill. In the written statement before the State Disciplinary Committee, the appellant did not categorically deny the receipt of Rs. 250/-. He suggested there that he had been instructed by respondent No. 2 to file a declaratory suit for transferring rent bill in his name. One does not know what this really means. The obstructionist proceedings were still pending and one does not know what kind of proceedings could be taken in a court of law for transferring the rent bill. It is not the case that there were any negotiations with the landlord for transferring the rent bill in the name of respondent No. 2. Then again, if any such suit was to be filed, the appellant and his client would have thought about it only after the obstructionist proceedings had come to an end and not in August, 1962. In his evidence, the appellant stated that this amount of Rs. 250/- had been paid to him by respondent No 2 of his own accord and the appellant had never suggested that any declaratory suit was required to be filed. This is rather a tall story. Seeing that the story was unconvincing, the appellant changed his case later and stated that this sum of Rs. 250/- was paid to him towards the court-fees in respect of the intended declaratory suit, his fees and other pocket expenses. That explanation is also false, because it is nobodys case that any such declaratory suit was ever filed. It is, hence, clear that the appellant was not at all able to explain why he demanded this amount of Rs. 250/-. The conclusion is irresistible that he must have represented that this amount was required to pay somebody for the purposes of transferring the bill of the suit premises in the name of respondent No. 2, knowing quite well that it was impossible to secure a transfer of the rent bill in legal proceedings in court. The amount had been screwed out by the appellant on a false representation for the purposes of misappropriation. In our opinion, the findings of both the Disciplinary Committees were right and unexceptionable. Normally this Court does not entertain an appeal from a concurrent finding of facts. We have, however, gone through the facts to satisfy ourselves that no injustice has been done.11. The State Disciplinary Committee had permanently debarred the appellant from practising as an Advocate, but, in appeal, the Disciplinary Committee of the Bar Council of India has taken a more lenient view and suspended the appellant from practice for a period of five years on condition that he pays respondent No. 2 Rs. 850/- within two months. No argument was addressed to us on the question of punishment, Therefore, it is not necessary to consider the point.
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occasion at all on 26th April, 1962 for the appellant making a demand for the amount from respondent No. 2s wife and receiving the same for the ostensible purpose of depositing the amount in Court. It is obvious that he obtained this amount on a false pretext and, when such a demand is made on a false pretext, the inference would naturally follow that the demand had been made with a view to misappropriate the amount.The State Disciplinary Committee had permanently debarred the appellant from practising as an Advocate, but, in appeal, the Disciplinary Committee of the Bar Council of India has taken a more lenient view and suspended the appellant from practice for a period of five years on condition that he pays respondent No. 2 Rs. 850/within two months. No argument was addressed to us on the question of punishment, Therefore, it is not necessary to consider the point.Corroboration is further found in what happened later in 1964 after disputes started between respondent No. 2 and the appellant. In about October, 1964, the disputes, according to respondent No. 2, were settled in the presence of one Mr. Qureshi and the appellant agreed to pay Rs. 1000/to respondent No. 2 byinstalments of Rs. 150/per month. Accordingly, the first instalment was sentto respondent No. 2 bymoney order on 11th October, 1964, and it is admitted by the appellant that he had sent the money order for Rs.He, however, explained that respondent No. 2 along with a social worker had seen the appellant on 10th October, 1964 and requested him for a loan. Out of pity, the appellant says, he sent the money order in question by way of loan on 11th October, 1964. The explanation was regarded by both the Committees as false, because, under the circumstances of the case and in view of the bitter disputes between the parties, it was extremely unlikely that the appellant would make any loan to respondent No. 2. On the other hand, Shri Mardan Ali Quereshi has corroborated respondent No. 2 and stated that in his presence the dispute had been settled between the appellant and respondent No. 2 and the appellant had agreed to pay the amount of Rupees 1000/in instalments of Rupees 150/per month. The story of the loan has been rejected by both the committees and the evidence of respondent No. 2 and Quereshi has been accepted, in which case it is impossible to believe that the appellant had returned the sum of Rs. 975/to respondent No 2 as far back as 13th September, 1962.We, therefore agree with the concurrent finding of both the Committees that the appellant had demanded and received Rs. 975/from respondent No. 2s wife Khurshid Begum on a false representation that the amount was required to be deposited in Court and thereafter misappropriated the same.10. The third item is of rupeesThere is no dispute that this amount was received by the appellant either from respondent No. 2 or his wife. Respondent No. 2 says that it was received from his wife during his absence. The Receipt Ext. B, however, is made in the name of respondent No. 2. The contents of the Receipt themselves go to support respondent No. 2s case that this amount had been paid, because the appellant had represented that the amount was required for transferring the rent bill in respect of the premises in the name of respondent No. 2. The amount was received by the appellant on 16thAugust, 1962, i.e., much before the obstructionist notice had been discharged. The appellant had great difficulty in explaining what this Receipt meant. In the notices exchanged in 1964, the appellant had denied altogether having received this sum of Rs. 250/for the purpose of the transfer of the rent bill. In the written statement before the State Disciplinary Committee, the appellant did not categorically deny the receipt of Rs.He suggested there that he had been instructed by respondent No. 2 to file a declaratory suit for transferring rent bill in his name. One does not know what this really means. The obstructionist proceedings were still pending and one does not know what kind of proceedings could be taken in a court of law for transferring the rent bill. It is not the case that there were any negotiations with the landlord for transferring the rent bill in the name of respondent No. 2. Then again, if any such suit was to be filed, the appellant and his client would have thought about it only after the obstructionist proceedings had come to an end and not in August, 1962. In his evidence, the appellant stated that this amount of Rs. 250/had been paid to him by respondent No 2 of his own accord and the appellant had never suggested that any declaratory suit was required to be filed. This is rather a tall story. Seeing that the story was unconvincing, the appellant changed his case later and stated that this sum of Rs. 250/was paid to him towards thein respect of the intended declaratory suit, his fees and other pocket expenses. That explanation is also false, because it is nobodys case that any such declaratory suit was ever filed. It is, hence, clear that the appellant was not at all able to explain why he demanded this amount of Rs.The conclusion is irresistible that he must have represented that this amount was required to pay somebody for the purposes of transferring the bill of the suit premises in the name of respondent No. 2, knowing quite well that it was impossible to secure a transfer of the rent bill in legal proceedings in court. The amount had been screwed out by the appellant on a false representation for the purposes of misappropriation. In our opinion, the findings of both the Disciplinary Committees were right and unexceptionable. Normally this Court does not entertain an appeal from a concurrent finding of facts. We have, however, gone through the facts to satisfy ourselves that no injustice has been done.
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State of Gujarat Vs. C.G. Desai & Others | pointed out by this Court in Ganga Rams case. (1970) 3 SCR 481 = (AIR 1970 SC 2178 ) (supra) in applying the wide language of Articles 14 and 16 to concrete cases. doctrinaire approach should be avoided and the matter considered in a practical way. If the claim of the respondents to the counting of their preselection service is conceded, it will create serious complications in running the administration: it will result in inequality of treatment rather than in removing it. If the pre-selection service as Officiating Deputy Engineers of direct recruits having such service, is taken into account for the purpose of promotion, it would create two classes amongst the same group and result in discrimination against those direct recruits who had no such preselection service to their credit.18. The Select-List is prepared on the basis of seniority-cum-merit, and the inter se seniority of the selected officers in the lower rank is ordinarily to be maintained in the promoted rank. Acceptance of the Respondents contention will make the smooth working and uniform application of this principle of seniority-cum-merit difficult. The inter se seniority of the selected officers will be seriously disturbed and the Department will be faced with the anomalous situation of a junior officer, with pre-selection service, becoming eligible to be considered for promotion over the head of his seniors, in the same group, having no such fortuitous pre-selection service to their credit.19. There is nothing in R. 7 (ii) which compels the interpretation that in the case of direct recruits, also, their pre-selection service as Officiating Deputy Engineers, if any, should be counted towards their eligibility service. Rule 7 (ii) is silent with regard to the method of computing the seven years period of eligibility service. 20. The interpretation of this condition of seven years service in Rule 7 (ii) is not res integra. It came up for consideration before this Court the Prabhakar Yeshwant Joshis case, (1970) 2 SCR 615 = (1971 Lab IC (N.) 8) (supra). The petitioners therein were also direct recruits to the posts of Deputy Engineers in B.S.E. Class II. The respondents therein had entered Class II Service by promotion. The petitioners challenged the promotions of the respondents to the posts of Officiating Executive Engineers as being contrary to the principles of natural justice and violative of Arts. 14 and 16 of the Constitution. It was inter alia contended that under the 1960 Rules in force, respondent 2 to 5 therein were only Officiating Deputy Engineers and they had to put in, after confirmation, as Deputy Engineers, seven years of actual service before being eligible for promotion as Officiating Executive Engineer. Speaking for the Court, Jaganmohan Reddy J. negatived this contention in these terms:"Even this Rule 7 (ii) does not indicate that the qualifying service of either of six years or of 7 years specified in the rule has to be permanent service. In cl. (ii) of R. 6 it is provided that 15 years of service in Class II for absorption (which means permanent absorption) as Executive Engineer can be in temporary or permanent capacities. There is nothing in R. (ii) to militate against the interpretation that the service specified there can be the total service of any description whether provisional, temporary or permanent. If promotion from Class II as officiating Executive Engineer can only be made after 7 years of permanent service, then there would be no meaning in including the temporary service in Class II for the purpose of absorption as Executive Engineer. Even R. 6 upon which Shri Gupte has laid great emphasis in support of his contention, does not, in our view, justify an interpretation that 7 years service required to entitle persons in Class II for promotion as an officiating Executive Engineer should be permanent service in Class II........ (within brackets ours) As we have seen earlier, cl. (ii) of R. 7 does not use the word belong but requires only that the person under consideration for promotion should be from Class II service. To be in Class II service the Deputy Engineer promoted from subordinate service has to put in at least 3 years of service as officiating Deputy Engineer before being confirmed and thereafter he can when he is promoted to the next higher rank be confirmed as Executive Engineer if he has put in 15 years in Class II service in temporary or permanent capacities and is holding an officiating divisional rank namely of an Executive Engineer. If temporary service can be taken into account for confirmation as an Executive Engineer, so can officiating service, and if officiating service can be taken into consideration, there is no impediment to a Depty Engineer with 7 years service whether officiating, temporary or permanent, to entitle him for promotion as an Executive Engineer...... We cannot, therefore, accept the contention of Shri Gupte that a promotee officiating Deputy Engineer Class II is not entitled to be considered for promotion under R. 7 to the post of an officiating Executive Engineer unless he has put in 7 years of service from the date of confirmation." 21. What is quoted above, no doubt, pertains to the case of promotees, with which the Bench was mainly concerned. But the observations in the penultimate paragraph of the judgment excerpted below, incidentally cover the issue now before us:"None of the petitioners, it is averred, was included in the Select List of 1964 or 1965 because not only did any of them not have the requisite seven years service as Deputy Engineer at the relevant time ... The petitioners however denied in their rejoinder that the list were prepared keeping the criteria laid down by the rules, but in our view,it is significant that they did not possess the required length of service in Class IIfor them to be entitled to promotion when the respondents were included in the list and promoted as such they cannot challenge the appointments made as being in violation of Art. 14 or Art. 16". (emphasis supplied) | 1[ds]15. After hearing the learned Counsel on both sides, we think, that the contentions of Mr. Bhandare must prevail. It is manifest that direct recruits and promotees in Class II constitute two distinct groups or classes. This classification has a historical background and a rational basis.The promotees from the lower ranks have only one chance of getting into Class II service, as against three available to the direct recruits. Further, for a considerable time, recruitment by promotion from the ranks of Temporary officiating Deputy Engineers etc. to Class II Service remained frozen with consequent stagnation and loss of incentive in the service. Circumstances being what they are, promotees, at the time of their entry into Class II Service, are, broadly speaking, far older than the direct recruits; and, many of the promotees may have less than 7 years to go before attaining the age of superannuation. If in the case of both these groups of promotees and direct recruits, with different background and dissimilar circumstances, the period of seven years eligibility service were to start from the date of their absorption in Class II, then, for most of the promotees there would be a rare chance of ever getting promotion as Officiating Executive Engineer. The classification is thus based on intelligible differentia16. If a person, like any of the respondents, to avoid the long tortuon wait leaves his position in the never ending queue of Temporary Officiating Deputy Engineers etc, looking for promotion, and takes a short cut through the direct channel, to Class II Service, he gives up once for all, the advantages and disadvantages that go with the channel of promotion and accepts all the handicaps and benefits which attach to the group of direct recruits. He cannot, after his direct recruitment claim the benefit of hispreselectionservice and thus have the best of both the worlds. It is well settled that so long as the classification is reasonable and the persons falling in the same class are treated alike, there can be no question of violation of the constitutional guarantee of equal treatment19. There is nothing in R. 7 (ii) which compels the interpretation that in the case of direct recruits, also, theirpreselectionservice as Officiating Deputy Engineers, if any, should be counted towards their eligibility service. Rule 7 (ii) is silent with regard to the method of computing the seven years period of eligibility service20. The interpretation of this condition of seven years service in Rule 7 (ii) is not res integra. It came up for consideration before this Court the Prabhakar Yeshwant Joshis case, (1970) 2 SCR 615 = (1971 Lab IC (N.) 8) (supra). The petitioners therein were also direct recruits to the posts of Deputy Engineers in B.S.E. Class II. The respondents therein had entered Class II Service by promotion. The petitioners challenged the promotions of the respondents to the posts of Officiating Executive Engineers as being contrary to the principles of natural justice and violative of Arts. 14 and 16 of the Constitution. It was inter alia contended that under the 1960 Rules in force, respondent 2 to 5 therein were only Officiating Deputy Engineers and they had to put in, after confirmation, as Deputy Engineers, seven years of actual service before being eligible for promotion as Officiating Executive Engineer22. In the light of the above discussion, we are of the opinion that the learned Judges of the High Court were in error in holding that the impugned action of the Government suffered from the vice of discrimination and as such was violative of Art. 16 of the Constitution. | 1 | 4,121 | 673 | ### Instruction:
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pointed out by this Court in Ganga Rams case. (1970) 3 SCR 481 = (AIR 1970 SC 2178 ) (supra) in applying the wide language of Articles 14 and 16 to concrete cases. doctrinaire approach should be avoided and the matter considered in a practical way. If the claim of the respondents to the counting of their preselection service is conceded, it will create serious complications in running the administration: it will result in inequality of treatment rather than in removing it. If the pre-selection service as Officiating Deputy Engineers of direct recruits having such service, is taken into account for the purpose of promotion, it would create two classes amongst the same group and result in discrimination against those direct recruits who had no such preselection service to their credit.18. The Select-List is prepared on the basis of seniority-cum-merit, and the inter se seniority of the selected officers in the lower rank is ordinarily to be maintained in the promoted rank. Acceptance of the Respondents contention will make the smooth working and uniform application of this principle of seniority-cum-merit difficult. The inter se seniority of the selected officers will be seriously disturbed and the Department will be faced with the anomalous situation of a junior officer, with pre-selection service, becoming eligible to be considered for promotion over the head of his seniors, in the same group, having no such fortuitous pre-selection service to their credit.19. There is nothing in R. 7 (ii) which compels the interpretation that in the case of direct recruits, also, their pre-selection service as Officiating Deputy Engineers, if any, should be counted towards their eligibility service. Rule 7 (ii) is silent with regard to the method of computing the seven years period of eligibility service. 20. The interpretation of this condition of seven years service in Rule 7 (ii) is not res integra. It came up for consideration before this Court the Prabhakar Yeshwant Joshis case, (1970) 2 SCR 615 = (1971 Lab IC (N.) 8) (supra). The petitioners therein were also direct recruits to the posts of Deputy Engineers in B.S.E. Class II. The respondents therein had entered Class II Service by promotion. The petitioners challenged the promotions of the respondents to the posts of Officiating Executive Engineers as being contrary to the principles of natural justice and violative of Arts. 14 and 16 of the Constitution. It was inter alia contended that under the 1960 Rules in force, respondent 2 to 5 therein were only Officiating Deputy Engineers and they had to put in, after confirmation, as Deputy Engineers, seven years of actual service before being eligible for promotion as Officiating Executive Engineer. Speaking for the Court, Jaganmohan Reddy J. negatived this contention in these terms:"Even this Rule 7 (ii) does not indicate that the qualifying service of either of six years or of 7 years specified in the rule has to be permanent service. In cl. (ii) of R. 6 it is provided that 15 years of service in Class II for absorption (which means permanent absorption) as Executive Engineer can be in temporary or permanent capacities. There is nothing in R. (ii) to militate against the interpretation that the service specified there can be the total service of any description whether provisional, temporary or permanent. If promotion from Class II as officiating Executive Engineer can only be made after 7 years of permanent service, then there would be no meaning in including the temporary service in Class II for the purpose of absorption as Executive Engineer. Even R. 6 upon which Shri Gupte has laid great emphasis in support of his contention, does not, in our view, justify an interpretation that 7 years service required to entitle persons in Class II for promotion as an officiating Executive Engineer should be permanent service in Class II........ (within brackets ours) As we have seen earlier, cl. (ii) of R. 7 does not use the word belong but requires only that the person under consideration for promotion should be from Class II service. To be in Class II service the Deputy Engineer promoted from subordinate service has to put in at least 3 years of service as officiating Deputy Engineer before being confirmed and thereafter he can when he is promoted to the next higher rank be confirmed as Executive Engineer if he has put in 15 years in Class II service in temporary or permanent capacities and is holding an officiating divisional rank namely of an Executive Engineer. If temporary service can be taken into account for confirmation as an Executive Engineer, so can officiating service, and if officiating service can be taken into consideration, there is no impediment to a Depty Engineer with 7 years service whether officiating, temporary or permanent, to entitle him for promotion as an Executive Engineer...... We cannot, therefore, accept the contention of Shri Gupte that a promotee officiating Deputy Engineer Class II is not entitled to be considered for promotion under R. 7 to the post of an officiating Executive Engineer unless he has put in 7 years of service from the date of confirmation." 21. What is quoted above, no doubt, pertains to the case of promotees, with which the Bench was mainly concerned. But the observations in the penultimate paragraph of the judgment excerpted below, incidentally cover the issue now before us:"None of the petitioners, it is averred, was included in the Select List of 1964 or 1965 because not only did any of them not have the requisite seven years service as Deputy Engineer at the relevant time ... The petitioners however denied in their rejoinder that the list were prepared keeping the criteria laid down by the rules, but in our view,it is significant that they did not possess the required length of service in Class IIfor them to be entitled to promotion when the respondents were included in the list and promoted as such they cannot challenge the appointments made as being in violation of Art. 14 or Art. 16". (emphasis supplied)
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15. After hearing the learned Counsel on both sides, we think, that the contentions of Mr. Bhandare must prevail. It is manifest that direct recruits and promotees in Class II constitute two distinct groups or classes. This classification has a historical background and a rational basis.The promotees from the lower ranks have only one chance of getting into Class II service, as against three available to the direct recruits. Further, for a considerable time, recruitment by promotion from the ranks of Temporary officiating Deputy Engineers etc. to Class II Service remained frozen with consequent stagnation and loss of incentive in the service. Circumstances being what they are, promotees, at the time of their entry into Class II Service, are, broadly speaking, far older than the direct recruits; and, many of the promotees may have less than 7 years to go before attaining the age of superannuation. If in the case of both these groups of promotees and direct recruits, with different background and dissimilar circumstances, the period of seven years eligibility service were to start from the date of their absorption in Class II, then, for most of the promotees there would be a rare chance of ever getting promotion as Officiating Executive Engineer. The classification is thus based on intelligible differentia16. If a person, like any of the respondents, to avoid the long tortuon wait leaves his position in the never ending queue of Temporary Officiating Deputy Engineers etc, looking for promotion, and takes a short cut through the direct channel, to Class II Service, he gives up once for all, the advantages and disadvantages that go with the channel of promotion and accepts all the handicaps and benefits which attach to the group of direct recruits. He cannot, after his direct recruitment claim the benefit of hispreselectionservice and thus have the best of both the worlds. It is well settled that so long as the classification is reasonable and the persons falling in the same class are treated alike, there can be no question of violation of the constitutional guarantee of equal treatment19. There is nothing in R. 7 (ii) which compels the interpretation that in the case of direct recruits, also, theirpreselectionservice as Officiating Deputy Engineers, if any, should be counted towards their eligibility service. Rule 7 (ii) is silent with regard to the method of computing the seven years period of eligibility service20. The interpretation of this condition of seven years service in Rule 7 (ii) is not res integra. It came up for consideration before this Court the Prabhakar Yeshwant Joshis case, (1970) 2 SCR 615 = (1971 Lab IC (N.) 8) (supra). The petitioners therein were also direct recruits to the posts of Deputy Engineers in B.S.E. Class II. The respondents therein had entered Class II Service by promotion. The petitioners challenged the promotions of the respondents to the posts of Officiating Executive Engineers as being contrary to the principles of natural justice and violative of Arts. 14 and 16 of the Constitution. It was inter alia contended that under the 1960 Rules in force, respondent 2 to 5 therein were only Officiating Deputy Engineers and they had to put in, after confirmation, as Deputy Engineers, seven years of actual service before being eligible for promotion as Officiating Executive Engineer22. In the light of the above discussion, we are of the opinion that the learned Judges of the High Court were in error in holding that the impugned action of the Government suffered from the vice of discrimination and as such was violative of Art. 16 of the Constitution.
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Commissioner of Income Tax, Delhi Vs. Delhi Safe Deposit Company Limited | which the expenditure serves is the same, the mere fact that to some extent the expenditure enures to a third partys benefit, say that of the publican, or that the brewer incidentally obtains some advantage, say in his character of landlord cannot in law defeat the effect of the finding as to the whole and exclusive purpose."5. In British Insulated and Helsby Cables Ltd. v. Atherton Lord Cave observed."It was made clear in the above cit ed cases of Ushers Wiltshire Brewery v. Bruce, [1915] A.C. 433 and Smith v. Incorporated Council of Law Reporting for England and Wales, [1914] 3 K.B. 674 that a sum of money expended, not of necessity and with a view to a direct and immediate benefit to the trade, but voluntarily and on the grounds of commercial expediency, and in order indirectly to facilitate the carrying on the business, may yet be expended wholly and exclusively f or the purposes of the trade."6. Rowlatt, J. in Mitchell v. B.W. Noble Ltd. held that the money spent on getting rid of a director and saving the company from scandal was deductible. Affirming the above view, the Court of Appeal (whose judgment appears at page 731) held that as the payment was not made to secure an actual asset so as effectually to increase the capital of the company but was made in order to enable the directors to carry on the business of the company as they had done in the past unfettered by the presence of the retiring director, which might have had a bad effect on the credit of the company, it must be treated as the income and not as capital expenditure and was deductible as such for income-tax purposes.The true test of an expenditure laid out wholly and exclusively for the purposes of trade or business is that it is incurred by the assessee as incidental to his trade for the purpose of keeping the trade going and of making it pay and not in any other capacity than of a trader. In Commissioner of Income-tax, Kerala v. Malayalam Plantation Ltd. Subba Rao, J. (as he then was) summarised the legal position at page 705 thus:-"The aforesaid discussion leads t o the following result: The expression "for the purpose of the business" is wider in scope than the expression "for the purpose of earning profits". Its range is wide: it may take in not only the day to day running of a business but also the rationalization of its administration and modernization of its machinery; it may include measure for the preservation of the business and for the protection of its assets and property from expropriation, coercive process or assertion of hostile titles; it may also comprehend payment of statutory dues and taxes imposed as a pre- condition to commence or for carrying on of a business; it may comprehend many other acts incidental to the carrying on of a business. However wide the meaning of the expression may be, its limits are implicit in it. The purpose shall be for the purpose of the business that is to say, the expenditure incurred shall be for carrying on of the business and the assessee shall incur it in his capacity as a person carrying on the business."7. In the instant case, the assessee incurred the expenditure in question to avoid any adverse effect on its reputation, to protect the managing agency which was an income earning apparatus and for retaining it with the reconstituted firm in which the interest of the assessee was the same as before. It was likely that but for the expenditure, the fair name of the assessee would have been tarnished or rendered suspicious and the managing agency would have been terminated. The expenditure incurred on the preservation of a profit earning asset of a business has al ways been held to be a deductible expenditure by courts. In the circumstances, it is difficult to hold that the expenditure incurred by the assessee was either gratuitous or one incurred outside the trading activities of the assessee. The expenditure was, therefore, rightly held to be deductible under section 37. We, therefore, reject the contention of the Revenue that the amount in question could not be claimed as a deduction under section 37 of the Act.The next contention of the Department is that the payment in question should have been first assessed as a loss in the assessment proceedings of the firm and in the absence of any claim made in the course of such proceedings by the firm, it was not possible to al low its deduction in the assessment of the assessee. Reliance is placed on sections 187 and 67 of the Act in support of this submission. It is seen that the expenditure in question had not been incurred by the firm. Even if the amount had been paid through the firm by the assessee, it would not be payment of the firms funds. In the accounts of the firm, there would be a credit and debit entry cancelling each other showing a receipt from the assessee and a payment to the managed company, not in any way affecting the capital structure of the firm. If the amount had been paid by the assessee directly to the managed company which appears to be more probable then the expenditure is obviously one incurred by the assessee itself though on account of the firm. In any view of the matter, the fact that the firm has not claimed the expenditure as its own does not affect the right of the assessee to claim deduction in respect of the amount in question in its a ssessment proceedings which it is legitimately entitled to do. It is not shown how in the peculiar circumstances of the case there is any statutory bar to the claim made by the assessee.8. We are satisfied that in the circumstances of the case the decision of the High Court does not call for interference.9. | 0[ds]It is no doubt true that the solution to a question of this nature sometimes is difficult to arrive at. But, however difficult the task may be, a decision on that question should be given having regard to the decisions bearing on the question and ordinary principles of commercial trading and of commercial expediency. The facts found in the present case are that the assessee was carrying on business as a partner of the managing agency firm and it also had other businesses. The managing agency agreement with the managed company was a profitable source of income and that the assessee had continuously earned income from that source. But on account of the negligence on the part of one o f its partners, there arose a serious dispute which could have ordinarily resulted in a long drawn out litigation between the managing agency firm and the managed company affecting seriously the reputation of the assessee in addition to any pecuniary loss which the assessee as a partner was liable to bear on account of the joint and several liability arising under the law of partnership. The settlement arrived at between the parties prevented effectively the hazards involved in any litigation and also helped the assessee in continuing to enjoy the benefit of the managing agency which was a sound business proposition. It also assisted the assessee in retaining the business reputation unsullied which it had built up over a number of years. It is also material to notice here that it was not shown that the settlement was a gratuitous arrangement entered into by the assessee to benefit the defaulting partner exclusively even though he might have been bene fitted to some extent. It is no doubt true that it was voluntary in character but on the facts and in the circumstances of the case whether it would make any difference at all is the point forthe instant case, the assessee incurred the expenditure in question to avoid any adverse effect on its reputation, to protect the managing agency which was an income earning apparatus and for retaining it with the reconstituted firm in which the interest of the assessee was the same as before. It was likely that but for the expenditure, the fair name of the assessee would have been tarnished or rendered suspicious and the managing agency would have been terminated. The expenditure incurred on the preservation of a profit earning asset of a business has al ways been held to be a deductible expenditure by courts. In the circumstances, it is difficult to hold that the expenditure incurred by the assessee was either gratuitous or one incurred outside the trading activities of the assessee. The expenditure was, therefore, rightly held to be deductible under section 37. We, therefore, reject the contention of the Revenue that the amount in question could not be claimed as a deduction under section 37 of the Act.The next contention of the Department is that the payment in question should have been first assessed as a loss in the assessment proceedings of the firm and in the absence of any claim made in the course of such proceedings by the firm, it was not possible to al low its deduction in the assessment of the assessee. Reliance is placed on sections 187 and 67 of the Act in support of this submission. It is seen that the expenditure in question had not been incurred by the firm. Even if the amount had been paid through the firm by the assessee, it would not be payment of the firms funds. In the accounts of the firm, there would be a credit and debit entry cancelling each other showing a receipt from the assessee and a payment to the managed company, not in any way affecting the capital structure of the firm. If the amount had been paid by the assessee directly to the managed company which appears to be more probable then the expenditure is obviously one incurred by the assessee itself though on account of the firm. In any view of the matter, the fact that the firm has not claimed the expenditure as its own does not affect the right of the assessee to claim deduction in respect of the amount in question in its a ssessment proceedings which it is legitimately entitled to do. It is not shown how in the peculiar circumstances of the case there is any statutory bar to the claim made by theare satisfied that in the circumstances of the case the decision of the High Court does not call for interfere | 0 | 2,453 | 806 | ### Instruction:
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which the expenditure serves is the same, the mere fact that to some extent the expenditure enures to a third partys benefit, say that of the publican, or that the brewer incidentally obtains some advantage, say in his character of landlord cannot in law defeat the effect of the finding as to the whole and exclusive purpose."5. In British Insulated and Helsby Cables Ltd. v. Atherton Lord Cave observed."It was made clear in the above cit ed cases of Ushers Wiltshire Brewery v. Bruce, [1915] A.C. 433 and Smith v. Incorporated Council of Law Reporting for England and Wales, [1914] 3 K.B. 674 that a sum of money expended, not of necessity and with a view to a direct and immediate benefit to the trade, but voluntarily and on the grounds of commercial expediency, and in order indirectly to facilitate the carrying on the business, may yet be expended wholly and exclusively f or the purposes of the trade."6. Rowlatt, J. in Mitchell v. B.W. Noble Ltd. held that the money spent on getting rid of a director and saving the company from scandal was deductible. Affirming the above view, the Court of Appeal (whose judgment appears at page 731) held that as the payment was not made to secure an actual asset so as effectually to increase the capital of the company but was made in order to enable the directors to carry on the business of the company as they had done in the past unfettered by the presence of the retiring director, which might have had a bad effect on the credit of the company, it must be treated as the income and not as capital expenditure and was deductible as such for income-tax purposes.The true test of an expenditure laid out wholly and exclusively for the purposes of trade or business is that it is incurred by the assessee as incidental to his trade for the purpose of keeping the trade going and of making it pay and not in any other capacity than of a trader. In Commissioner of Income-tax, Kerala v. Malayalam Plantation Ltd. Subba Rao, J. (as he then was) summarised the legal position at page 705 thus:-"The aforesaid discussion leads t o the following result: The expression "for the purpose of the business" is wider in scope than the expression "for the purpose of earning profits". Its range is wide: it may take in not only the day to day running of a business but also the rationalization of its administration and modernization of its machinery; it may include measure for the preservation of the business and for the protection of its assets and property from expropriation, coercive process or assertion of hostile titles; it may also comprehend payment of statutory dues and taxes imposed as a pre- condition to commence or for carrying on of a business; it may comprehend many other acts incidental to the carrying on of a business. However wide the meaning of the expression may be, its limits are implicit in it. The purpose shall be for the purpose of the business that is to say, the expenditure incurred shall be for carrying on of the business and the assessee shall incur it in his capacity as a person carrying on the business."7. In the instant case, the assessee incurred the expenditure in question to avoid any adverse effect on its reputation, to protect the managing agency which was an income earning apparatus and for retaining it with the reconstituted firm in which the interest of the assessee was the same as before. It was likely that but for the expenditure, the fair name of the assessee would have been tarnished or rendered suspicious and the managing agency would have been terminated. The expenditure incurred on the preservation of a profit earning asset of a business has al ways been held to be a deductible expenditure by courts. In the circumstances, it is difficult to hold that the expenditure incurred by the assessee was either gratuitous or one incurred outside the trading activities of the assessee. The expenditure was, therefore, rightly held to be deductible under section 37. We, therefore, reject the contention of the Revenue that the amount in question could not be claimed as a deduction under section 37 of the Act.The next contention of the Department is that the payment in question should have been first assessed as a loss in the assessment proceedings of the firm and in the absence of any claim made in the course of such proceedings by the firm, it was not possible to al low its deduction in the assessment of the assessee. Reliance is placed on sections 187 and 67 of the Act in support of this submission. It is seen that the expenditure in question had not been incurred by the firm. Even if the amount had been paid through the firm by the assessee, it would not be payment of the firms funds. In the accounts of the firm, there would be a credit and debit entry cancelling each other showing a receipt from the assessee and a payment to the managed company, not in any way affecting the capital structure of the firm. If the amount had been paid by the assessee directly to the managed company which appears to be more probable then the expenditure is obviously one incurred by the assessee itself though on account of the firm. In any view of the matter, the fact that the firm has not claimed the expenditure as its own does not affect the right of the assessee to claim deduction in respect of the amount in question in its a ssessment proceedings which it is legitimately entitled to do. It is not shown how in the peculiar circumstances of the case there is any statutory bar to the claim made by the assessee.8. We are satisfied that in the circumstances of the case the decision of the High Court does not call for interference.9.
### Response:
0
### Explanation:
It is no doubt true that the solution to a question of this nature sometimes is difficult to arrive at. But, however difficult the task may be, a decision on that question should be given having regard to the decisions bearing on the question and ordinary principles of commercial trading and of commercial expediency. The facts found in the present case are that the assessee was carrying on business as a partner of the managing agency firm and it also had other businesses. The managing agency agreement with the managed company was a profitable source of income and that the assessee had continuously earned income from that source. But on account of the negligence on the part of one o f its partners, there arose a serious dispute which could have ordinarily resulted in a long drawn out litigation between the managing agency firm and the managed company affecting seriously the reputation of the assessee in addition to any pecuniary loss which the assessee as a partner was liable to bear on account of the joint and several liability arising under the law of partnership. The settlement arrived at between the parties prevented effectively the hazards involved in any litigation and also helped the assessee in continuing to enjoy the benefit of the managing agency which was a sound business proposition. It also assisted the assessee in retaining the business reputation unsullied which it had built up over a number of years. It is also material to notice here that it was not shown that the settlement was a gratuitous arrangement entered into by the assessee to benefit the defaulting partner exclusively even though he might have been bene fitted to some extent. It is no doubt true that it was voluntary in character but on the facts and in the circumstances of the case whether it would make any difference at all is the point forthe instant case, the assessee incurred the expenditure in question to avoid any adverse effect on its reputation, to protect the managing agency which was an income earning apparatus and for retaining it with the reconstituted firm in which the interest of the assessee was the same as before. It was likely that but for the expenditure, the fair name of the assessee would have been tarnished or rendered suspicious and the managing agency would have been terminated. The expenditure incurred on the preservation of a profit earning asset of a business has al ways been held to be a deductible expenditure by courts. In the circumstances, it is difficult to hold that the expenditure incurred by the assessee was either gratuitous or one incurred outside the trading activities of the assessee. The expenditure was, therefore, rightly held to be deductible under section 37. We, therefore, reject the contention of the Revenue that the amount in question could not be claimed as a deduction under section 37 of the Act.The next contention of the Department is that the payment in question should have been first assessed as a loss in the assessment proceedings of the firm and in the absence of any claim made in the course of such proceedings by the firm, it was not possible to al low its deduction in the assessment of the assessee. Reliance is placed on sections 187 and 67 of the Act in support of this submission. It is seen that the expenditure in question had not been incurred by the firm. Even if the amount had been paid through the firm by the assessee, it would not be payment of the firms funds. In the accounts of the firm, there would be a credit and debit entry cancelling each other showing a receipt from the assessee and a payment to the managed company, not in any way affecting the capital structure of the firm. If the amount had been paid by the assessee directly to the managed company which appears to be more probable then the expenditure is obviously one incurred by the assessee itself though on account of the firm. In any view of the matter, the fact that the firm has not claimed the expenditure as its own does not affect the right of the assessee to claim deduction in respect of the amount in question in its a ssessment proceedings which it is legitimately entitled to do. It is not shown how in the peculiar circumstances of the case there is any statutory bar to the claim made by theare satisfied that in the circumstances of the case the decision of the High Court does not call for interfere
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Fazal Hussain & Another Vs. State of Jammu & Kashmir | Superintendent of Police (C.I.D.), Jammu and September 27, 1967.3. No grounds of detention were served on the detenu, but an order dated October 25, 1967, issued by the Secretary to the Government , Home Department, was served on him informing him that it would be against the public interest to disclose the facts or the grounds of detention to him.4. The learned counsel for the petitioner, Mr. Garg, contends that the order dated October 25, 1967, was served too late and the detention of the petitioner became illegal when the time for serving the grounds of detention had expired.5. Section 8 of the Jammu and Kashmir Preventive Detention Act, 1964, provides that "when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than ten days from the date of detention, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the Government". But the proviso to Section 8 states :"Provided that nothing in this subsection shall apply to the case of any person detained with a view of preventing him from acting in any manner prejudicial to the security of the State, if the authority making the order by same or a subsequent order, directs that the person detained may be informed that it would be against public interest to communicate to him the grounds on which the detention order has been made."6. The learned counsel for the State contends that if an order has been made under the proviso it does not matter whether the order is made and served beyond the ten days time specified in Section 8.7.We are unable to accept this contention. There is no doubt that it is the duty of the detaining authority to communicate the grounds within ten days of the date of detention if the case does not fall within the proviso. If the detaining authority neither communicate the grounds of detention nor informs the detenu under the proviso within 10 days of the detention, the detention would become illegal and a subsequent order under the proviso would not have the effect of rendering the detention legal.8. A similar point arose before this Court in Abdul Jabar Butt v. State of Jammu and Kashmir, 1957 SCR 51 at p. 59 = (AIR 1957 SC 281 at p. 284).This Court was then considering the Jammu and Kashmir Preventive Detention Act (IV of Sambat 2011) and similar provisions contained therein. Das, C. J. observed:"If the grounds are not communicated to the detenu within the period of time prescribed by the expression "as soon as may be" the detenu becomes deprived of his statutory right under sub-section (1) and his detention in such circumstances becomes illegal as being otherwise than in accordance with procedure prescribed by law. In order to prevent this result in certain specified cases the proviso authorises the Government to issue the requisite declaration so as to exclude entirely the operation of sub-section (1). It, therefore, stands to reason and is consistent with the principle of harmonious construction of statutes that the power of issuing a declaration so as to prevent the unwanted result of the operation of sub-section (1) should be exercised before that very result sets in."9. Although there is some charge in the language in the present Act in substance, the provisions are similar as far as the present point is concerned. We are here concerned with the liberty of a subject and we must adopt a construction which would not have the effect of enabling the executive to make an order under the proviso at any time after the lapse of ten days specified in Section 8. Even from the practical point of view we are unable to see that the Government would experience any difficulty in deciding within ten days whether the grounds should be served or not in the public interest. All the material is with the Government when it passes the order of detention and a period of ten days is ample for the Government to make up its mind whether the case falls within the proviso or not.10. In the result we hold that the detention of the petitioner Arshad Ahmad is illegal and he should be released.11. Coming to the case of the second petitioner Fazal Hussain, he was detained by order dated January 3, 1968, passed under Section 3 (1) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964. The order of detention was served on the petitioner in the Central Jail on January 8, 1968, and the same was read out to him. By order dated January 11, 1968, the petitioner was informed that it was against public interest to disclose facts or to communicate to him the grounds on which the detention order was passed. The affidavit stating these facts is sworn to by the Additional Secretary to the Government, Jammu and Kashmir, Home Department, and it is stated in the verification that these facts were stated on the basis of information derived from the record of the case which he believed to be true.12. The learned counsel for the petitioner contends that the Deputy Superintendent, Central Jail, who is alleged to have served the order of detention on the petitioner, should have filed the affidavit. The State has annexed to the affidavit a copy of the Government Detention Order and below the detention order the following endorsement exists :"The notice of this order has been served upon Shri Fazal Hussain, son of Ayub Khan, detenu by reading over the same to him.(Sd.) ------------,Dy. Superintendent,Central Jail, Jammu 8/1."13. In view of this endorsement existing on the order of detention, we do not consider that it was necessary that the Deputy Superintendent, Central Jail should have filed an affidavit to the effect that he had served the order of detention on the detenu Fazal Hussain. | 0[ds]7.We are unable to accept this contention. There is no doubt that it is the duty of the detaining authority to communicate the grounds within ten days of the date of detention if the case does not fall within the proviso. If the detaining authority neither communicate the grounds of detention nor informs the detenu under the proviso within 10 days of the detention, the detention would become illegal and a subsequent order under the proviso would not have the effect of rendering the detention legal.Although there is some charge in the language in the present Act in substance, the provisions are similar as far as the present point is concerned. We are here concerned with the liberty of a subject and we must adopt a construction which would not have the effect of enabling the executive to make an order under the proviso at any time after the lapse of ten days specified in Section 8. Even from the practical point of view we are unable to see that the Government would experience any difficulty in deciding within ten days whether the grounds should be served or not in the public interest. All the material is with the Government when it passes the order of detention and a period of ten days is ample for the Government to make up its mind whether the case falls within the proviso or not.10. In the result we hold that the detention of the petitioner Arshad Ahmad is illegal and he should be released.In view of this endorsement existing on the order of detention, we do not consider that it was necessary that the Deputy Superintendent, Central Jail should have filed an affidavit to the effect that he had served the order of detention on the detenu Fazal Hussain. | 0 | 1,225 | 312 | ### Instruction:
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Superintendent of Police (C.I.D.), Jammu and September 27, 1967.3. No grounds of detention were served on the detenu, but an order dated October 25, 1967, issued by the Secretary to the Government , Home Department, was served on him informing him that it would be against the public interest to disclose the facts or the grounds of detention to him.4. The learned counsel for the petitioner, Mr. Garg, contends that the order dated October 25, 1967, was served too late and the detention of the petitioner became illegal when the time for serving the grounds of detention had expired.5. Section 8 of the Jammu and Kashmir Preventive Detention Act, 1964, provides that "when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than ten days from the date of detention, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the Government". But the proviso to Section 8 states :"Provided that nothing in this subsection shall apply to the case of any person detained with a view of preventing him from acting in any manner prejudicial to the security of the State, if the authority making the order by same or a subsequent order, directs that the person detained may be informed that it would be against public interest to communicate to him the grounds on which the detention order has been made."6. The learned counsel for the State contends that if an order has been made under the proviso it does not matter whether the order is made and served beyond the ten days time specified in Section 8.7.We are unable to accept this contention. There is no doubt that it is the duty of the detaining authority to communicate the grounds within ten days of the date of detention if the case does not fall within the proviso. If the detaining authority neither communicate the grounds of detention nor informs the detenu under the proviso within 10 days of the detention, the detention would become illegal and a subsequent order under the proviso would not have the effect of rendering the detention legal.8. A similar point arose before this Court in Abdul Jabar Butt v. State of Jammu and Kashmir, 1957 SCR 51 at p. 59 = (AIR 1957 SC 281 at p. 284).This Court was then considering the Jammu and Kashmir Preventive Detention Act (IV of Sambat 2011) and similar provisions contained therein. Das, C. J. observed:"If the grounds are not communicated to the detenu within the period of time prescribed by the expression "as soon as may be" the detenu becomes deprived of his statutory right under sub-section (1) and his detention in such circumstances becomes illegal as being otherwise than in accordance with procedure prescribed by law. In order to prevent this result in certain specified cases the proviso authorises the Government to issue the requisite declaration so as to exclude entirely the operation of sub-section (1). It, therefore, stands to reason and is consistent with the principle of harmonious construction of statutes that the power of issuing a declaration so as to prevent the unwanted result of the operation of sub-section (1) should be exercised before that very result sets in."9. Although there is some charge in the language in the present Act in substance, the provisions are similar as far as the present point is concerned. We are here concerned with the liberty of a subject and we must adopt a construction which would not have the effect of enabling the executive to make an order under the proviso at any time after the lapse of ten days specified in Section 8. Even from the practical point of view we are unable to see that the Government would experience any difficulty in deciding within ten days whether the grounds should be served or not in the public interest. All the material is with the Government when it passes the order of detention and a period of ten days is ample for the Government to make up its mind whether the case falls within the proviso or not.10. In the result we hold that the detention of the petitioner Arshad Ahmad is illegal and he should be released.11. Coming to the case of the second petitioner Fazal Hussain, he was detained by order dated January 3, 1968, passed under Section 3 (1) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964. The order of detention was served on the petitioner in the Central Jail on January 8, 1968, and the same was read out to him. By order dated January 11, 1968, the petitioner was informed that it was against public interest to disclose facts or to communicate to him the grounds on which the detention order was passed. The affidavit stating these facts is sworn to by the Additional Secretary to the Government, Jammu and Kashmir, Home Department, and it is stated in the verification that these facts were stated on the basis of information derived from the record of the case which he believed to be true.12. The learned counsel for the petitioner contends that the Deputy Superintendent, Central Jail, who is alleged to have served the order of detention on the petitioner, should have filed the affidavit. The State has annexed to the affidavit a copy of the Government Detention Order and below the detention order the following endorsement exists :"The notice of this order has been served upon Shri Fazal Hussain, son of Ayub Khan, detenu by reading over the same to him.(Sd.) ------------,Dy. Superintendent,Central Jail, Jammu 8/1."13. In view of this endorsement existing on the order of detention, we do not consider that it was necessary that the Deputy Superintendent, Central Jail should have filed an affidavit to the effect that he had served the order of detention on the detenu Fazal Hussain.
### Response:
0
### Explanation:
7.We are unable to accept this contention. There is no doubt that it is the duty of the detaining authority to communicate the grounds within ten days of the date of detention if the case does not fall within the proviso. If the detaining authority neither communicate the grounds of detention nor informs the detenu under the proviso within 10 days of the detention, the detention would become illegal and a subsequent order under the proviso would not have the effect of rendering the detention legal.Although there is some charge in the language in the present Act in substance, the provisions are similar as far as the present point is concerned. We are here concerned with the liberty of a subject and we must adopt a construction which would not have the effect of enabling the executive to make an order under the proviso at any time after the lapse of ten days specified in Section 8. Even from the practical point of view we are unable to see that the Government would experience any difficulty in deciding within ten days whether the grounds should be served or not in the public interest. All the material is with the Government when it passes the order of detention and a period of ten days is ample for the Government to make up its mind whether the case falls within the proviso or not.10. In the result we hold that the detention of the petitioner Arshad Ahmad is illegal and he should be released.In view of this endorsement existing on the order of detention, we do not consider that it was necessary that the Deputy Superintendent, Central Jail should have filed an affidavit to the effect that he had served the order of detention on the detenu Fazal Hussain.
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RAM MANOHAR LOHIA JOINT HOSPITAL AND OTHERS Vs. MUNNA PRASAD SAINI AND ANOTHER | followed. The first respondent has not asserted or claimed that the procedure prescribed was followed for his selection and appointment. On the other hand, the appellant is right in relying upon letter dated 30.03.1999 issued by the Special Secretary, Government of Uttar Pradesh granting permission to appoint 28 workers on contractual basis at the appellant hospital. Thereafter, by another letter dated 29.03.2003, the Assistant Secretary, Government of Uttar Pradesh, had granted approval for 106 posts to be held on contract and creation of 111 posts in the regular pay-scale. With regard to the posts to be filled on contract, fixed salary was payable and no other facility was to be provided to such employees. Before granting further benefits or facilities, approval of the Government was necessary. It is the case of the first respondent that he was appointed on a fixed salary and was neither entitled to nor granted any perks or other facilities. The appellant has placed before us the list of 111 regular posts, which does not include ward boys. On the other hand, the list of 106 contractual posts states that 35 ward boys/maids had to be appointed. 9. Therefore, the appointment of the first respondent was on contractual basis and not to a regular post on proper selection in terms of the rules. Pertinently, the respondent has not indicated his educational qualifications and whether he has necessary qualifications to work as a nurse or a ward boy. It is also obvious that the contractual term was over. In other words, the first respondent had worked with the appellant during the period September, 2003 to June, 2005. He has not worked thereafter. There is nothing on record to show and establish the appellant had not followed the rule last to come, first to go. This is neither alleged nor proved. 10. In Deputy Executive Engineer v. Kuberbhai Kanjibhai, (2019) 4 SCC 307 this Court had referred to several earlier judgments and had quoted with approval the ratio as expounded in Bharat Sanchar Nigam Limited v. Bhurumal, (2014) 7 SCC 177 to the following effect: 33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious. 34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3)]. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose. 35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of lastcome-first-go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied. 11. This dictum was again followed in State of Uttarakhand and Another v. Raj Kumar (2019) 14 SCC 353 and Ranbir Singh v. Executive Eng. P.W.D. 2021 SCC OnLine SC 670. 12. In view of the facts stated above, it is clear that the first respondent was not a permanent employee but a contractual employee. There is no evidence to establish that the appellant had retained junior workers; such unfair trade practice is not alleged or even argued before us. The first respondent having worked for more than 240 days, termination of his services violated the mandatory provisions of Section 25F of the Industrial Disputes Act, 1947. Therefore, in the facts of the present case, we modify the order of the Labour Court by setting aside the direction for reinstatement and would enhance the compensation by awarding a lump sum amount. 13. The High Court had stayed reinstatement of the first respondent but no order under Section 17B of the Industrial Disputes Act was passed. The first respondent has, however, filed an application before this Court under Section 17B to direct the appellant to pay the last drawn wages. | 1[ds]7. We have considered these documents but would not like to interfere with the factual findings recorded by the Labour Court, which has been affirmed by the High Court with respect to the engagement of the first respondent by the appellant hospital. It has been explained to us that the first respondent had impleaded the second respondent as a co-respondent in view of the stand taken by the appellant regarding the first respondents engagement through the second respondent, which factum was disputed by the first respondent. No doubt, the appellant has also placed before us Annexure P-4, an agreement dated 01.04.2003 between the appellant and the second respondent for engaging contractual workers, including 12 ward boys/aya/patient helpers, but this contract states that the payment will be made by the appellant to the second respondent every month within one week from the date of receipt of bill, which if required will be rectified to meet valid objections of the appellant. The reason why we would not like to rely upon the said agreement is that the Labour Court took notice of documents like attendance register/duty chart, copy of the joining report, salary payment register, etc. and then arrived at the conclusion with respect to the employer-employee relationship. The agreement would not by itself be a determinative factor as the first respondent is not a party to the agreement. The factual finding of the Labour Court is comprehensive and requires no interference.Thus, we are unable to accept the first contention of the appellant on the question of employer-employee relationship.8. However, on the question of reinstatement and compensation payable, we are inclined to accept the alternative submissions made by the appellant. The appellant is a hospital run by the State Government which requires approval of the State Government for creation of regular posts and for recruitment and appointment. The procedure as prescribed under the relevant extant rules has to be followed. The first respondent has not asserted or claimed that the procedure prescribed was followed for his selection and appointment. On the other hand, the appellant is right in relying upon letter dated 30.03.1999 issued by the Special Secretary, Government of Uttar Pradesh granting permission to appoint 28 workers on contractual basis at the appellant hospital. Thereafter, by another letter dated 29.03.2003, the Assistant Secretary, Government of Uttar Pradesh, had granted approval for 106 posts to be held on contract and creation of 111 posts in the regular pay-scale. With regard to the posts to be filled on contract, fixed salary was payable and no other facility was to be provided to such employees. Before granting further benefits or facilities, approval of the Government was necessary. It is the case of the first respondent that he was appointed on a fixed salary and was neither entitled to nor granted any perks or other facilities. The appellant has placed before us the list of 111 regular posts, which does not include ward boys. On the other hand, the list of 106 contractual posts states that 35 ward boys/maids had to be appointed.9. Therefore, the appointment of the first respondent was on contractual basis and not to a regular post on proper selection in terms of the rules. Pertinently, the respondent has not indicated his educational qualifications and whether he has necessary qualifications to work as a nurse or a ward boy. It is also obvious that the contractual term was over. In other words, the first respondent had worked with the appellant during the period September, 2003 to June, 2005. He has not worked thereafter. There is nothing on record to show and establish the appellant had not followed the rule last to come, first to go. This is neither alleged nor proved.10. In Deputy Executive Engineer v. Kuberbhai Kanjibhai, (2019) 4 SCC 307 this Court had referred to several earlier judgments and had quoted with approval the ratio as expounded in Bharat Sanchar Nigam Limited v. Bhurumal, (2014) 7 SCC 177 to the following effect:33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3)]. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of lastcome-first-go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.12. In view of the facts stated above, it is clear that the first respondent was not a permanent employee but a contractual employee. There is no evidence to establish that the appellant had retained junior workers; such unfair trade practice is not alleged or even argued before us. The first respondent having worked for more than 240 days, termination of his services violated the mandatory provisions of Section 25F of the Industrial Disputes Act, 1947. Therefore, in the facts of the present case, we modify the order of the Labour Court by setting aside the direction for reinstatement and would enhance the compensation by awarding a lump sum amount.13. The High Court had stayed reinstatement of the first respondent but no order under Section 17B of the Industrial Disputes Act was passed. The first respondent has, however, filed an application before this Court under Section 17B to direct the appellant to pay the last drawn wages. | 1 | 1,992 | 1,399 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
followed. The first respondent has not asserted or claimed that the procedure prescribed was followed for his selection and appointment. On the other hand, the appellant is right in relying upon letter dated 30.03.1999 issued by the Special Secretary, Government of Uttar Pradesh granting permission to appoint 28 workers on contractual basis at the appellant hospital. Thereafter, by another letter dated 29.03.2003, the Assistant Secretary, Government of Uttar Pradesh, had granted approval for 106 posts to be held on contract and creation of 111 posts in the regular pay-scale. With regard to the posts to be filled on contract, fixed salary was payable and no other facility was to be provided to such employees. Before granting further benefits or facilities, approval of the Government was necessary. It is the case of the first respondent that he was appointed on a fixed salary and was neither entitled to nor granted any perks or other facilities. The appellant has placed before us the list of 111 regular posts, which does not include ward boys. On the other hand, the list of 106 contractual posts states that 35 ward boys/maids had to be appointed. 9. Therefore, the appointment of the first respondent was on contractual basis and not to a regular post on proper selection in terms of the rules. Pertinently, the respondent has not indicated his educational qualifications and whether he has necessary qualifications to work as a nurse or a ward boy. It is also obvious that the contractual term was over. In other words, the first respondent had worked with the appellant during the period September, 2003 to June, 2005. He has not worked thereafter. There is nothing on record to show and establish the appellant had not followed the rule last to come, first to go. This is neither alleged nor proved. 10. In Deputy Executive Engineer v. Kuberbhai Kanjibhai, (2019) 4 SCC 307 this Court had referred to several earlier judgments and had quoted with approval the ratio as expounded in Bharat Sanchar Nigam Limited v. Bhurumal, (2014) 7 SCC 177 to the following effect: 33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious. 34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3)]. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose. 35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of lastcome-first-go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied. 11. This dictum was again followed in State of Uttarakhand and Another v. Raj Kumar (2019) 14 SCC 353 and Ranbir Singh v. Executive Eng. P.W.D. 2021 SCC OnLine SC 670. 12. In view of the facts stated above, it is clear that the first respondent was not a permanent employee but a contractual employee. There is no evidence to establish that the appellant had retained junior workers; such unfair trade practice is not alleged or even argued before us. The first respondent having worked for more than 240 days, termination of his services violated the mandatory provisions of Section 25F of the Industrial Disputes Act, 1947. Therefore, in the facts of the present case, we modify the order of the Labour Court by setting aside the direction for reinstatement and would enhance the compensation by awarding a lump sum amount. 13. The High Court had stayed reinstatement of the first respondent but no order under Section 17B of the Industrial Disputes Act was passed. The first respondent has, however, filed an application before this Court under Section 17B to direct the appellant to pay the last drawn wages.
### Response:
1
### Explanation:
the State Government which requires approval of the State Government for creation of regular posts and for recruitment and appointment. The procedure as prescribed under the relevant extant rules has to be followed. The first respondent has not asserted or claimed that the procedure prescribed was followed for his selection and appointment. On the other hand, the appellant is right in relying upon letter dated 30.03.1999 issued by the Special Secretary, Government of Uttar Pradesh granting permission to appoint 28 workers on contractual basis at the appellant hospital. Thereafter, by another letter dated 29.03.2003, the Assistant Secretary, Government of Uttar Pradesh, had granted approval for 106 posts to be held on contract and creation of 111 posts in the regular pay-scale. With regard to the posts to be filled on contract, fixed salary was payable and no other facility was to be provided to such employees. Before granting further benefits or facilities, approval of the Government was necessary. It is the case of the first respondent that he was appointed on a fixed salary and was neither entitled to nor granted any perks or other facilities. The appellant has placed before us the list of 111 regular posts, which does not include ward boys. On the other hand, the list of 106 contractual posts states that 35 ward boys/maids had to be appointed.9. Therefore, the appointment of the first respondent was on contractual basis and not to a regular post on proper selection in terms of the rules. Pertinently, the respondent has not indicated his educational qualifications and whether he has necessary qualifications to work as a nurse or a ward boy. It is also obvious that the contractual term was over. In other words, the first respondent had worked with the appellant during the period September, 2003 to June, 2005. He has not worked thereafter. There is nothing on record to show and establish the appellant had not followed the rule last to come, first to go. This is neither alleged nor proved.10. In Deputy Executive Engineer v. Kuberbhai Kanjibhai, (2019) 4 SCC 307 this Court had referred to several earlier judgments and had quoted with approval the ratio as expounded in Bharat Sanchar Nigam Limited v. Bhurumal, (2014) 7 SCC 177 to the following effect:33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3)]. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of lastcome-first-go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.12. In view of the facts stated above, it is clear that the first respondent was not a permanent employee but a contractual employee. There is no evidence to establish that the appellant had retained junior workers; such unfair trade practice is not alleged or even argued before us. The first respondent having worked for more than 240 days, termination of his services violated the mandatory provisions of Section 25F of the Industrial Disputes Act, 1947. Therefore, in the facts of the present case, we modify the order of the Labour Court by setting aside the direction for reinstatement and would enhance the compensation by awarding a lump sum amount.13. The High Court had stayed reinstatement of the first respondent but no order under Section 17B of the Industrial Disputes Act was passed. The first respondent has, however, filed an application before this Court under Section 17B to direct the appellant to pay the last drawn wages.
|
Dhananjoy Chatterjee Vs. State Of West Bengal | the theft of the watch on the date of occurrence from the flat where the ghastly occurrence took place. The absence of any explanation for possession of the wrist-watch belonging to PW 3 by the appellant is a circumstance which goes against the appellant. 11. All the circumstances referred to above and relied upon by the prosecution have been conclusively established by the prosecution. They are specific and of a clinching nature and all of them irresistibly lead to the conclusion that the appellant alone was guilty of committing rape of Hetal and subsequently murdering her. All the circumstances which have been conclusively established are consistent only with the hypothesis of the guilt of the appellant and are totally inconsistent with his innocence. Not only in the cross- examination of various prosecution witnesses, but even during the arguments, nothing has been pointed out as to why any of the witnesses for the prosecution should have falsely implicated the appellant in such a heinous crime. None of the witnesses had any motive to falsely implicate him. None had any enmity with him. The witnesses produced by the prosecution have withstood the test of cross-examination well and their creditworthiness and reliability has not been demolished in any manner. All the circumstances established by the prosecution, as discussed above, are conclusive in nature and specific in details. They are consistent only with the hypothesis of the guilt of the appellant and totally inconsistent with his innocence. We are therefore in complete agreement with the trial court and the High Court that the prosecution has established the guilt of the appellant beyond a reasonable doubt and we, therefore, uphold his conviction for the offences under Sections 302, 376 and 380 IPC. 12. This now brings us to the question of sentence. The trial court awarded the sentence of death and the High Court confirmed the imposition of capital punishment for the offence under Section 302 IPC for the murder of Hetal Parekh. Learned counsel submitted that appellant was a married man of 27 years of age and there were no special reasons to award the sentence of death on him. Learned counsel submitted that keeping in view the legislative policy discernible from Section 235(2) read with Section 354(3) Cr.P.C., the Court may make the choice of not imposing the extreme penalty of death on the appellant and give him a chance to become a reformed member of the society in keeping with the concern for the dignity of human life. Learned counsel for the State has on the other hand canvassed for confirmation of the sentence of death so that it serves as a deterrent to similar depraved minds. According to the learned State counsel there were no mitigating circumstances and the case was undoubtedly "rarest of the rare" cases where the sentence of death alone would meet the ends of justice. 13. We have given our anxious consideration to the question of sentence keeping in view the changed legislative policy which is patent from Section 354(3) Cr.P.C.. We have also considered the observations of this Court in Bachan Singh case. 14. In recent years, the rising crime rate particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished thereby encouraging the criminal and in the ultimate making justice suffer by weakening the systems credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration. 15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the societys cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment. 16. The sordid episode of the security guard, whose sacred duty was to ensure the protection and welfare of the inhabitants of the flats in the apartment, should have subjected the deceased, a resident of one of the flats, to gratify his lust and murder her in retaliation for his transfer on her complaint, makes the crime even more heinous. Keeping in view the medical evidence and the state in which the body of the deceased was found, it is obvious that a most heinous type of barbaric rape and murder was committed on a helpless and defenceless school-going girl of 18 years. If the security guards behave in this manner who will guard the guards? The faith of the society by such a barbaric act of the guard, gets totally shaken and its cry for justice becomes loud and clear. The offence was not only inhuman and barbaric but it was a totally ruthless crime of rape followed by cold blooded murder and an affront to the human dignity of the society. The savage nature of the crime has shocked our judicial conscience. There are no extenuating or mitigating circumstances whatsoever in the case. | 0[ds]11. All the circumstances referred to above and relied upon by the prosecution have been conclusively established by the prosecution. They are specific and of a clinching nature and all of them irresistibly lead to the conclusion that the appellant alone was guilty of committing rape of Hetal and subsequently murdering her. All the circumstances which have been conclusively established are consistent only with the hypothesis of the guilt of the appellant and are totally inconsistent with his innocence. Not only in the cross- examination of various prosecution witnesses, but even during the arguments, nothing has been pointed out as to why any of the witnesses for the prosecution should have falsely implicated the appellant in such a heinous crime. None of the witnesses had any motive to falsely implicate him. None had any enmity with him. The witnesses produced by the prosecution have withstood the test of cross-examination well and their creditworthiness and reliability has not been demolished in any manner. All the circumstances established by the prosecution, as discussed above, are conclusive in nature and specific in details. They are consistent only with the hypothesis of the guilt of the appellant and totally inconsistent with his innocence. We are therefore in complete agreement with the trial court and the High Court that the prosecution has established the guilt of the appellant beyond a reasonable doubt and we, therefore, uphold his conviction for the offences under Sections 302, 376 and 380 | 0 | 9,048 | 263 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
the theft of the watch on the date of occurrence from the flat where the ghastly occurrence took place. The absence of any explanation for possession of the wrist-watch belonging to PW 3 by the appellant is a circumstance which goes against the appellant. 11. All the circumstances referred to above and relied upon by the prosecution have been conclusively established by the prosecution. They are specific and of a clinching nature and all of them irresistibly lead to the conclusion that the appellant alone was guilty of committing rape of Hetal and subsequently murdering her. All the circumstances which have been conclusively established are consistent only with the hypothesis of the guilt of the appellant and are totally inconsistent with his innocence. Not only in the cross- examination of various prosecution witnesses, but even during the arguments, nothing has been pointed out as to why any of the witnesses for the prosecution should have falsely implicated the appellant in such a heinous crime. None of the witnesses had any motive to falsely implicate him. None had any enmity with him. The witnesses produced by the prosecution have withstood the test of cross-examination well and their creditworthiness and reliability has not been demolished in any manner. All the circumstances established by the prosecution, as discussed above, are conclusive in nature and specific in details. They are consistent only with the hypothesis of the guilt of the appellant and totally inconsistent with his innocence. We are therefore in complete agreement with the trial court and the High Court that the prosecution has established the guilt of the appellant beyond a reasonable doubt and we, therefore, uphold his conviction for the offences under Sections 302, 376 and 380 IPC. 12. This now brings us to the question of sentence. The trial court awarded the sentence of death and the High Court confirmed the imposition of capital punishment for the offence under Section 302 IPC for the murder of Hetal Parekh. Learned counsel submitted that appellant was a married man of 27 years of age and there were no special reasons to award the sentence of death on him. Learned counsel submitted that keeping in view the legislative policy discernible from Section 235(2) read with Section 354(3) Cr.P.C., the Court may make the choice of not imposing the extreme penalty of death on the appellant and give him a chance to become a reformed member of the society in keeping with the concern for the dignity of human life. Learned counsel for the State has on the other hand canvassed for confirmation of the sentence of death so that it serves as a deterrent to similar depraved minds. According to the learned State counsel there were no mitigating circumstances and the case was undoubtedly "rarest of the rare" cases where the sentence of death alone would meet the ends of justice. 13. We have given our anxious consideration to the question of sentence keeping in view the changed legislative policy which is patent from Section 354(3) Cr.P.C.. We have also considered the observations of this Court in Bachan Singh case. 14. In recent years, the rising crime rate particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished thereby encouraging the criminal and in the ultimate making justice suffer by weakening the systems credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration. 15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the societys cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment. 16. The sordid episode of the security guard, whose sacred duty was to ensure the protection and welfare of the inhabitants of the flats in the apartment, should have subjected the deceased, a resident of one of the flats, to gratify his lust and murder her in retaliation for his transfer on her complaint, makes the crime even more heinous. Keeping in view the medical evidence and the state in which the body of the deceased was found, it is obvious that a most heinous type of barbaric rape and murder was committed on a helpless and defenceless school-going girl of 18 years. If the security guards behave in this manner who will guard the guards? The faith of the society by such a barbaric act of the guard, gets totally shaken and its cry for justice becomes loud and clear. The offence was not only inhuman and barbaric but it was a totally ruthless crime of rape followed by cold blooded murder and an affront to the human dignity of the society. The savage nature of the crime has shocked our judicial conscience. There are no extenuating or mitigating circumstances whatsoever in the case.
### Response:
0
### Explanation:
11. All the circumstances referred to above and relied upon by the prosecution have been conclusively established by the prosecution. They are specific and of a clinching nature and all of them irresistibly lead to the conclusion that the appellant alone was guilty of committing rape of Hetal and subsequently murdering her. All the circumstances which have been conclusively established are consistent only with the hypothesis of the guilt of the appellant and are totally inconsistent with his innocence. Not only in the cross- examination of various prosecution witnesses, but even during the arguments, nothing has been pointed out as to why any of the witnesses for the prosecution should have falsely implicated the appellant in such a heinous crime. None of the witnesses had any motive to falsely implicate him. None had any enmity with him. The witnesses produced by the prosecution have withstood the test of cross-examination well and their creditworthiness and reliability has not been demolished in any manner. All the circumstances established by the prosecution, as discussed above, are conclusive in nature and specific in details. They are consistent only with the hypothesis of the guilt of the appellant and totally inconsistent with his innocence. We are therefore in complete agreement with the trial court and the High Court that the prosecution has established the guilt of the appellant beyond a reasonable doubt and we, therefore, uphold his conviction for the offences under Sections 302, 376 and 380
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Vishwamitra Press Karyalaya Vs. The Workers Of Vishwamitra Press.The State Of Uttar Prades | beyond time and invalid and on 18th July 1951 a notification was issued extending the period up to 3rd July 1951. This award was challenged by the appellant before the Labour Appellate Tribunal The Labour Appellate Tribunal negatived the contentions of the appellant.The appellant applied for special leave which was granted by this Court on 21st December1951 limited to the following grounds:"(1) The Government had no power to extend the time of the making of Award after the expiry of the time originally fixed, and the award made by the Adjudicator after such time is illegal, ultra virus, inoperative and void.(2) In any case the state Government had extended the time for making the award till 30th June 1961, and the Adjudicators award made after that dale is void.(3) That the extension of time by the Government on 21st July 1951, after even the time extended previously had expired, was ultra vires and it could not make a void award as a valid award."3. The industrial dispute which arose between the appellant and the respondents was referred by the Uttar Pradesh Government to the Indus, trial Tribunal in exercise of the power conferred by Ss. 3 and 4, Uttar Pradesh Industrial Disputes Act, 1947. The Uttar Pradesh Government had in exercise of the powers conferred by S. 3 (d) of the Act promulgated an order inter alia providing for the adjudication of the industrial disputes referred by it to the Industrial Tribunals. Paragraph 16 of that order ran as under:"The Tribunal or the Adjudicator shall hear the dispute and pronounce its decision within 40 days (excluding holidays observed by Courts subordinate to the High Court) from the date of reference made to it by the State Government, and shall thereafter as soon as possible supply a copy of the same to the parties to the dispute, and to such other Persons or bodies as the State Government may in writing direct :Provided that the State Government may extend the said period from time to time."4. Paragraph 9 which prescribed the powers and functions of Tribunals inter alia provided:"(9) The decision shall be in writing, and shall be pronounced in open Court and dated and signed by the member or members of the Tribunal, as the case may be, at the time of Pronouncing it."5. It was not disputed before us that the original period calculated in accordance with Para 16 above expired on 9th June 1951 and the Uttar Pradesh Government validly extended the period up to 30th June 1951.It was, however, contended first the Industrial Tribunal should have made its award on 30th June 1951 and not on 2nd July 1951 as it purported to do. It was urged that the provision as to excluding holidays observed by Courts subordinate to the High Court which obtained in Para. 16 above did not apply when the period was extended up to a particular date. It would apply only if the period was extended by a particular number of days when for the purpose of the computation of those days the holidays would have to be excluded in the manner therein mentioned. The Utter Pradesh Government having extended the period up to 30th June 1951, it was submitted that the award should have been made by 30th June 1951 and not later and having been made on 2nd July 1951 was, therefore, beyond time and invalid.6. This argument might well have prevailed but for the provisions of S. 10, U. P. General Clauses Act, 1904. That Section provides :"Where, by any United Provinces Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed Period, then, it the Court or office is closed on that day or the Last day of the prescribed period, the act or proceeding shall be considered as done or taken on the next day afterwards on which the Court or office is open."The Industrial Court was closed on 30th June 1951 which was declared a public holiday. 1st July 1951 was a Sunday and it was competent to the Industrial Court to pronounce its decision on the next day afterwards on which the Industrial Court was open, i.e., 2nd July 1951.Prima facie therefore the award which was pronounced on 2nd July 1951 was well within time.7. The only thing which Shri Khaiten counsel for the appellant urged before us, therefore, was that the Industrial Court was not a Court within the meaning of S. 10, U. P. General Clauses Act. The Court according to his submission could only be construed to mean a Court in the hierarchy of the civil Courts of the State and an Industrial court did non fall within that category. We are unable to accept this contention of Shri Khaitan. The Uttar Pradesh Industrial Disputes Act, 1947, was an Uttar Pradesh Act. The General Order dated 15th March 1951 which provided inter alia for the reference of the industrial dispute for adjudication and the manner in which it was to be adjudicated, was promulgated by the U. P. Government in exercise of the powers conferred upon it by S. 3 (d) of the Act.Paragraph 9 (9) of the General Order provided for the decision being pronounced by the Industrial Tribunal in open Court and we fail to understand how it could ever be urged that the Industrial Tribunal was non a Court within the meaning of S. 10, U. P. General Clauses Act. If the Industrial Tribunal was thus a Court within the meaning of S. 10, U. P. General Clauses Act, the Court was closed on 30th June 1951 as also on 1st July 1951 and the decision could be pronounced by the Industrial Court on the next day afterwards on which it was open i.e. on 2nd July 1951. In our opinion, therefore, the decision which was pronounced on 2nd July 1951 was well within time and was valid and binding on the parties. | 0[ds]We are unable to accept this contention of Shri Khaitan. The Uttar Pradesh Industrial Disputes Act, 1947, was an Uttar Pradesh Act. The General Order dated 15th March 1951 which provided inter alia for the reference of the industrial dispute for adjudication and the manner in which it was to be adjudicated, was promulgated by the U. P. Government in exercise of the powers conferred upon it by S. 3 (d) of the Act.Paragraph 9 (9) of the General Order provided for the decision being pronounced by the Industrial Tribunal in open Court and we fail to understand how it could ever be urged that the Industrial Tribunal was non a Court within the meaning of S. 10, U. P. General Clauses Act. If the Industrial Tribunal was thus a Court within the meaning of S. 10, U. P. General Clauses Act, the Court was closed on 30th June 1951 as also on 1st July 1951 and the decision could be pronounced by the Industrial Court on the next day afterwards on which it was open i.e. on 2nd JulyIn our opinion, therefore, the decision which was pronounced on 2nd July 1951 was well within time and was valid and binding on the parties. | 0 | 1,292 | 225 | ### Instruction:
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beyond time and invalid and on 18th July 1951 a notification was issued extending the period up to 3rd July 1951. This award was challenged by the appellant before the Labour Appellate Tribunal The Labour Appellate Tribunal negatived the contentions of the appellant.The appellant applied for special leave which was granted by this Court on 21st December1951 limited to the following grounds:"(1) The Government had no power to extend the time of the making of Award after the expiry of the time originally fixed, and the award made by the Adjudicator after such time is illegal, ultra virus, inoperative and void.(2) In any case the state Government had extended the time for making the award till 30th June 1961, and the Adjudicators award made after that dale is void.(3) That the extension of time by the Government on 21st July 1951, after even the time extended previously had expired, was ultra vires and it could not make a void award as a valid award."3. The industrial dispute which arose between the appellant and the respondents was referred by the Uttar Pradesh Government to the Indus, trial Tribunal in exercise of the power conferred by Ss. 3 and 4, Uttar Pradesh Industrial Disputes Act, 1947. The Uttar Pradesh Government had in exercise of the powers conferred by S. 3 (d) of the Act promulgated an order inter alia providing for the adjudication of the industrial disputes referred by it to the Industrial Tribunals. Paragraph 16 of that order ran as under:"The Tribunal or the Adjudicator shall hear the dispute and pronounce its decision within 40 days (excluding holidays observed by Courts subordinate to the High Court) from the date of reference made to it by the State Government, and shall thereafter as soon as possible supply a copy of the same to the parties to the dispute, and to such other Persons or bodies as the State Government may in writing direct :Provided that the State Government may extend the said period from time to time."4. Paragraph 9 which prescribed the powers and functions of Tribunals inter alia provided:"(9) The decision shall be in writing, and shall be pronounced in open Court and dated and signed by the member or members of the Tribunal, as the case may be, at the time of Pronouncing it."5. It was not disputed before us that the original period calculated in accordance with Para 16 above expired on 9th June 1951 and the Uttar Pradesh Government validly extended the period up to 30th June 1951.It was, however, contended first the Industrial Tribunal should have made its award on 30th June 1951 and not on 2nd July 1951 as it purported to do. It was urged that the provision as to excluding holidays observed by Courts subordinate to the High Court which obtained in Para. 16 above did not apply when the period was extended up to a particular date. It would apply only if the period was extended by a particular number of days when for the purpose of the computation of those days the holidays would have to be excluded in the manner therein mentioned. The Utter Pradesh Government having extended the period up to 30th June 1951, it was submitted that the award should have been made by 30th June 1951 and not later and having been made on 2nd July 1951 was, therefore, beyond time and invalid.6. This argument might well have prevailed but for the provisions of S. 10, U. P. General Clauses Act, 1904. That Section provides :"Where, by any United Provinces Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed Period, then, it the Court or office is closed on that day or the Last day of the prescribed period, the act or proceeding shall be considered as done or taken on the next day afterwards on which the Court or office is open."The Industrial Court was closed on 30th June 1951 which was declared a public holiday. 1st July 1951 was a Sunday and it was competent to the Industrial Court to pronounce its decision on the next day afterwards on which the Industrial Court was open, i.e., 2nd July 1951.Prima facie therefore the award which was pronounced on 2nd July 1951 was well within time.7. The only thing which Shri Khaiten counsel for the appellant urged before us, therefore, was that the Industrial Court was not a Court within the meaning of S. 10, U. P. General Clauses Act. The Court according to his submission could only be construed to mean a Court in the hierarchy of the civil Courts of the State and an Industrial court did non fall within that category. We are unable to accept this contention of Shri Khaitan. The Uttar Pradesh Industrial Disputes Act, 1947, was an Uttar Pradesh Act. The General Order dated 15th March 1951 which provided inter alia for the reference of the industrial dispute for adjudication and the manner in which it was to be adjudicated, was promulgated by the U. P. Government in exercise of the powers conferred upon it by S. 3 (d) of the Act.Paragraph 9 (9) of the General Order provided for the decision being pronounced by the Industrial Tribunal in open Court and we fail to understand how it could ever be urged that the Industrial Tribunal was non a Court within the meaning of S. 10, U. P. General Clauses Act. If the Industrial Tribunal was thus a Court within the meaning of S. 10, U. P. General Clauses Act, the Court was closed on 30th June 1951 as also on 1st July 1951 and the decision could be pronounced by the Industrial Court on the next day afterwards on which it was open i.e. on 2nd July 1951. In our opinion, therefore, the decision which was pronounced on 2nd July 1951 was well within time and was valid and binding on the parties.
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### Explanation:
We are unable to accept this contention of Shri Khaitan. The Uttar Pradesh Industrial Disputes Act, 1947, was an Uttar Pradesh Act. The General Order dated 15th March 1951 which provided inter alia for the reference of the industrial dispute for adjudication and the manner in which it was to be adjudicated, was promulgated by the U. P. Government in exercise of the powers conferred upon it by S. 3 (d) of the Act.Paragraph 9 (9) of the General Order provided for the decision being pronounced by the Industrial Tribunal in open Court and we fail to understand how it could ever be urged that the Industrial Tribunal was non a Court within the meaning of S. 10, U. P. General Clauses Act. If the Industrial Tribunal was thus a Court within the meaning of S. 10, U. P. General Clauses Act, the Court was closed on 30th June 1951 as also on 1st July 1951 and the decision could be pronounced by the Industrial Court on the next day afterwards on which it was open i.e. on 2nd JulyIn our opinion, therefore, the decision which was pronounced on 2nd July 1951 was well within time and was valid and binding on the parties.
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M/S Gangotri Enterprises Ltd Vs. Union Of India | by reason of any existing obligation on the part of the person who has committed the breach. He gets compensation as a result of the fiat of the Court. Therefore, no pecuniary liability arises till the Court has determined that the party complaining of the breach is entitled to damages. Therefore, when damages are assessed, it would not be true to say that what the Court is doing is ascertaining a pecuniary liability which already existed. The Court in the first place must decide that the defendant is liable and then it proceeds to assess what that liability is. But till that determination there is no liability at all upon the defendant.This statement in our view represents the correct legal position and has our full concurrence. A claim for damages for breach of contract is, therefore, not a claim for a sum presently due and payable and the purchaser is not entitled, in exercise of the right conferred upon it under clause 18, to recover the amount of such claim by appropriating other sums due to the contractor. On this view, it is not necessary for us to consider the other contention raised on behalf of the respondent, namely, that on a proper construction of clause 18, the purchaser is entitled to exercise the right conferred under that clause only where the claim for payment of a sum of money is either admitted by the contractor, or in case of dispute, adjudicated upon by a court or other adjudicatory authority. We must, therefore, hold that the appellant had no right or authority under clause 18 to appropriate the amounts of other pending bills of the respondent in or towards satisfaction of its claim for damages against the respondent and the learned Judge was justified in issuing an interim injunction restraining the appellant from doing so.12. We accordingly dismiss the appeals. The appellant in each appeal will pay the costs of the respondent all throughout." 40. In our considered opinion, the case at hand being somewhat identical to this case has to be decided keeping in view the law laid down by this Court in the case of Union of India (DGS&D) (supra). 41. Coming now to the facts of the case at hand, we find that wordings of Clause 62 of the contract in question with which we are concerned is identical to that of Clause 18 of Union of India (DGS&D) (supra). Clause 62 of GCC provides for determination of contract owing to default of contractor. The relevant portion of Clause 62 reads as under: "The amounts thus to be forfeited or recovered may be deducted from any moneys then due or which at any time thereafter may become due to the Contractor by the Railway under this or any other contract or otherwise." 42. On perusal of the record of the case, we find that firstly, arbitration proceedings in relation to the contract dated 22.08.2005 are still pending. Secondly, the sum claimed by the respondents from the appellant does not relate to the contract for which the Bank Guarantee had been furnished but it relates to another contract dated 22.08.2005 for which no bank guarantee had been furnished. Thirdly, the sum claimed by the respondents from the appellant is in the nature of damages, which is not yet adjudicated upon in arbitration proceedings. Fourthly, the sum claimed is neither a sum due in praesenti nor a sum payable. In other words, the sum claimed by the respondents is neither an admitted sum and nor a sum which stood adjudicated by any Court of law in any judicial proceedings but it is a disputed sum and lastly, the Bank Guarantee in question being in the nature of a performance guarantee furnished for execution work of contract dated 14.07.2006 (Anand Vihar works) and the work having been completed to the satisfaction of the respondents, they had no right to encash the Bank Guarantee.43. We have, therefore, no hesitation in holding that both the courts below erred in dismissing the appellants application for grant of injunction. We are indeed constrained to observe that both the courts committed jurisdictional error when they failed to take note of the law laid down by this Court in Union of India (DGS&D) (supra) which governed the controversy and instead placed reliance on Himadri Chemicals Industries Ltd. v. Coal Tar Refining Company, AIR 2007 SC 2798 and U.P. State Sugar Corporation v. Sumac International Ltd., (1997) 1 SCC 568 , which laid down general principle relating to Bank Guarantee. There can be no quarrel to the proposition laid down in those cases. However, every case has to be decided with reference to the facts of the case involved therein. The case at hand was similar on facts with that of the case of Union of India (DGS&D) (supra) and hence the law laid down in that case was applicable to this case. Even in this Court, both the learned counsel did not bring to our notice the law laid down in Union of India (DGS&D) case (supra).44. We are also of the view that the District Judge having decided the injunction application in the first instance in appellants favour vide order dated 04.01.2012 erred in rejecting the application made by the appellant second time vide order dated 12.07.2012. It is not in dispute that the respondents despite having suffered the injunction order dated 04.01.2012 did not file any appeal against this order. Such order thus attained finality and was, therefore, binding on the parties.45. In the light of foregoing discussion, we hold that the appellants have made out a prima facie case in their favour for grant of injunction against the respondents so also they have made out a case of balance of convenience and irreparable loss in their favour as was held by this Court in the case of Union of India (DGS&D) (supra). They are, therefore, entitled to claim injunction against the respondent in relation to encashment of Bank Guarantee no. 12/2006 dated 04.08.2006. | 1[ds]42. On perusal of the record of the case, we find that firstly, arbitration proceedings in relation to the contract dated 22.08.2005 are still pending. Secondly, the sum claimed by the respondents from the appellant does not relate to the contract for which the Bank Guarantee had been furnished but it relates to another contract dated 22.08.2005 for which no bank guarantee had been furnished. Thirdly, the sum claimed by the respondents from the appellant is in the nature of damages, which is not yet adjudicated upon in arbitration proceedings. Fourthly, the sum claimed is neither a sum due in praesenti nor a sum payable. In other words, the sum claimed by the respondents is neither an admitted sum and nor a sum which stood adjudicated by any Court of law in any judicial proceedings but it is a disputed sum and lastly, the Bank Guarantee in question being in the nature of a performance guarantee furnished for execution work of contract dated 14.07.2006 (Anand Vihar works) and the work having been completed to the satisfaction of the respondents, they had no right to encash the Bank Guarantee.43. We have, therefore, no hesitation in holding that both the courts below erred in dismissing the appellants application for grant of injunction. We are indeed constrained to observe that both the courts committed jurisdictional error when they failed to take note of the law laid down by this Court in Union of India (DGS&D) (supra) which governed the controversy and instead placed reliance on Himadri Chemicals Industries Ltd. v. Coal Tar Refining Company, AIR 2007 SC 2798 and U.P. State Sugar Corporation v. Sumac International Ltd., (1997) 1 SCC 568 , which laid down general principle relating to Bank Guarantee. There can be no quarrel to the proposition laid down in those cases. However, every case has to be decided with reference to the facts of the case involved therein. The case at hand was similar on facts with that of the case of Union of India (DGS&D) (supra) and hence the law laid down in that case was applicable to this case. Even in this Court, both the learned counsel did not bring to our notice the law laid down in Union of India (DGS&D) case (supra).44. We are also of the view that the District Judge having decided the injunction application in the first instance in appellants favour vide order dated 04.01.2012 erred in rejecting the application made by the appellant second time vide order dated 12.07.2012. It is not in dispute that the respondents despite having suffered the injunction order dated 04.01.2012 did not file any appeal against this order. Such order thus attained finality and was, therefore, binding on the parties.45. In the light of foregoing discussion, we hold that the appellants have made out a prima facie case in their favour for grant of injunction against the respondents so also they have made out a case of balance of convenience and irreparable loss in their favour as was held by this Court in the case of Union of India (DGS&D) (supra). They are, therefore, entitled to claim injunction against the respondent in relation to encashment of Bank Guarantee no. 12/2006 dated 04.08.2006. | 1 | 5,075 | 607 | ### Instruction:
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by reason of any existing obligation on the part of the person who has committed the breach. He gets compensation as a result of the fiat of the Court. Therefore, no pecuniary liability arises till the Court has determined that the party complaining of the breach is entitled to damages. Therefore, when damages are assessed, it would not be true to say that what the Court is doing is ascertaining a pecuniary liability which already existed. The Court in the first place must decide that the defendant is liable and then it proceeds to assess what that liability is. But till that determination there is no liability at all upon the defendant.This statement in our view represents the correct legal position and has our full concurrence. A claim for damages for breach of contract is, therefore, not a claim for a sum presently due and payable and the purchaser is not entitled, in exercise of the right conferred upon it under clause 18, to recover the amount of such claim by appropriating other sums due to the contractor. On this view, it is not necessary for us to consider the other contention raised on behalf of the respondent, namely, that on a proper construction of clause 18, the purchaser is entitled to exercise the right conferred under that clause only where the claim for payment of a sum of money is either admitted by the contractor, or in case of dispute, adjudicated upon by a court or other adjudicatory authority. We must, therefore, hold that the appellant had no right or authority under clause 18 to appropriate the amounts of other pending bills of the respondent in or towards satisfaction of its claim for damages against the respondent and the learned Judge was justified in issuing an interim injunction restraining the appellant from doing so.12. We accordingly dismiss the appeals. The appellant in each appeal will pay the costs of the respondent all throughout." 40. In our considered opinion, the case at hand being somewhat identical to this case has to be decided keeping in view the law laid down by this Court in the case of Union of India (DGS&D) (supra). 41. Coming now to the facts of the case at hand, we find that wordings of Clause 62 of the contract in question with which we are concerned is identical to that of Clause 18 of Union of India (DGS&D) (supra). Clause 62 of GCC provides for determination of contract owing to default of contractor. The relevant portion of Clause 62 reads as under: "The amounts thus to be forfeited or recovered may be deducted from any moneys then due or which at any time thereafter may become due to the Contractor by the Railway under this or any other contract or otherwise." 42. On perusal of the record of the case, we find that firstly, arbitration proceedings in relation to the contract dated 22.08.2005 are still pending. Secondly, the sum claimed by the respondents from the appellant does not relate to the contract for which the Bank Guarantee had been furnished but it relates to another contract dated 22.08.2005 for which no bank guarantee had been furnished. Thirdly, the sum claimed by the respondents from the appellant is in the nature of damages, which is not yet adjudicated upon in arbitration proceedings. Fourthly, the sum claimed is neither a sum due in praesenti nor a sum payable. In other words, the sum claimed by the respondents is neither an admitted sum and nor a sum which stood adjudicated by any Court of law in any judicial proceedings but it is a disputed sum and lastly, the Bank Guarantee in question being in the nature of a performance guarantee furnished for execution work of contract dated 14.07.2006 (Anand Vihar works) and the work having been completed to the satisfaction of the respondents, they had no right to encash the Bank Guarantee.43. We have, therefore, no hesitation in holding that both the courts below erred in dismissing the appellants application for grant of injunction. We are indeed constrained to observe that both the courts committed jurisdictional error when they failed to take note of the law laid down by this Court in Union of India (DGS&D) (supra) which governed the controversy and instead placed reliance on Himadri Chemicals Industries Ltd. v. Coal Tar Refining Company, AIR 2007 SC 2798 and U.P. State Sugar Corporation v. Sumac International Ltd., (1997) 1 SCC 568 , which laid down general principle relating to Bank Guarantee. There can be no quarrel to the proposition laid down in those cases. However, every case has to be decided with reference to the facts of the case involved therein. The case at hand was similar on facts with that of the case of Union of India (DGS&D) (supra) and hence the law laid down in that case was applicable to this case. Even in this Court, both the learned counsel did not bring to our notice the law laid down in Union of India (DGS&D) case (supra).44. We are also of the view that the District Judge having decided the injunction application in the first instance in appellants favour vide order dated 04.01.2012 erred in rejecting the application made by the appellant second time vide order dated 12.07.2012. It is not in dispute that the respondents despite having suffered the injunction order dated 04.01.2012 did not file any appeal against this order. Such order thus attained finality and was, therefore, binding on the parties.45. In the light of foregoing discussion, we hold that the appellants have made out a prima facie case in their favour for grant of injunction against the respondents so also they have made out a case of balance of convenience and irreparable loss in their favour as was held by this Court in the case of Union of India (DGS&D) (supra). They are, therefore, entitled to claim injunction against the respondent in relation to encashment of Bank Guarantee no. 12/2006 dated 04.08.2006.
### Response:
1
### Explanation:
42. On perusal of the record of the case, we find that firstly, arbitration proceedings in relation to the contract dated 22.08.2005 are still pending. Secondly, the sum claimed by the respondents from the appellant does not relate to the contract for which the Bank Guarantee had been furnished but it relates to another contract dated 22.08.2005 for which no bank guarantee had been furnished. Thirdly, the sum claimed by the respondents from the appellant is in the nature of damages, which is not yet adjudicated upon in arbitration proceedings. Fourthly, the sum claimed is neither a sum due in praesenti nor a sum payable. In other words, the sum claimed by the respondents is neither an admitted sum and nor a sum which stood adjudicated by any Court of law in any judicial proceedings but it is a disputed sum and lastly, the Bank Guarantee in question being in the nature of a performance guarantee furnished for execution work of contract dated 14.07.2006 (Anand Vihar works) and the work having been completed to the satisfaction of the respondents, they had no right to encash the Bank Guarantee.43. We have, therefore, no hesitation in holding that both the courts below erred in dismissing the appellants application for grant of injunction. We are indeed constrained to observe that both the courts committed jurisdictional error when they failed to take note of the law laid down by this Court in Union of India (DGS&D) (supra) which governed the controversy and instead placed reliance on Himadri Chemicals Industries Ltd. v. Coal Tar Refining Company, AIR 2007 SC 2798 and U.P. State Sugar Corporation v. Sumac International Ltd., (1997) 1 SCC 568 , which laid down general principle relating to Bank Guarantee. There can be no quarrel to the proposition laid down in those cases. However, every case has to be decided with reference to the facts of the case involved therein. The case at hand was similar on facts with that of the case of Union of India (DGS&D) (supra) and hence the law laid down in that case was applicable to this case. Even in this Court, both the learned counsel did not bring to our notice the law laid down in Union of India (DGS&D) case (supra).44. We are also of the view that the District Judge having decided the injunction application in the first instance in appellants favour vide order dated 04.01.2012 erred in rejecting the application made by the appellant second time vide order dated 12.07.2012. It is not in dispute that the respondents despite having suffered the injunction order dated 04.01.2012 did not file any appeal against this order. Such order thus attained finality and was, therefore, binding on the parties.45. In the light of foregoing discussion, we hold that the appellants have made out a prima facie case in their favour for grant of injunction against the respondents so also they have made out a case of balance of convenience and irreparable loss in their favour as was held by this Court in the case of Union of India (DGS&D) (supra). They are, therefore, entitled to claim injunction against the respondent in relation to encashment of Bank Guarantee no. 12/2006 dated 04.08.2006.
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PR. COMMISSIONER OF INCOME TAX- I, CHANDIGARH Vs. M/S. ABC PAPERS LIMITED | custody of the new Assessing Officer. It could be argued that the Assessing Officer who exercised the jurisdiction before its transfer will not be in a position to assist the High Court, further, he cannot implement the decision of that High Court, after it decides the question of law as he is no more the Assessing Officer. We will now proceed to deal with these arguments. 29. The binding nature of decisions of an appellate court established under a statute on subordinate courts and tribunals within the territorial jurisdiction of the State, is a larger principle involving consistency, certainty and judicial discipline, and it has a direct bearing on the rule of law. This need for order and consistency in decision making must inform our interpretation of judicial remedies. An important reason adopted in the case of Seth Banarasi Dass Gupta, further highlighted by Justice Lahoti in Suresh Desai, is that a decision of a High Court is binding on subordinate courts as well as tribunals operating within its territorial jurisdiction. It is for this very reason that the Assessing Officer, Commissioner of Appeals and the ITAT operate under the concerned High Court as one unit, for consistency and systematic development of the law. It is also important to note that the decisions of the High Court in whose jurisdiction the transferee Assessing Officer is situated do not bind the Authorities or the ITAT which had passed orders before the transfer of the case has taken place. This creates an anomalous situation, as the erroneous principle adopted by the authority or the ITAT, even if corrected by the High Court outside its jurisdiction, would not be binding on them. 30. The legal structure under the Income Tax Act commencing with Assessing Officer, the Commissioner of Appeals, ITAT and finally the High Court under Section 260A must be seen as a lineal progression of judicial remedies. Culmination of all these proceedings in question of law jurisdiction of the High Court under Section 260A of the Act is of special significance as it depicts the overarching judicial superintendence of the High Court over Tribunals and other Authorities operating within its territorial jurisdiction. 31. The power of transfer exercisable under Section 127 is relatable only to the jurisdiction of the Income Tax Authorities. It has no bearing on the ITAT, much less on a High Court. If we accept the submission, it will have the effect of the executive having the power to determine the jurisdiction of a High Court. This can never be the intention of the Parliament. The jurisdiction of a High Court stands on its own footing by virtue of Section 260A read with Section 269 of the Act. While interpreting a judicial remedy, a Constitutional Court should not adopt an approach where the identity of the appellate forum would be contingent upon or vacillates subject to the exercise of some other power. Such an interpretation will clearly be against the interest of justice. Under Section 127, the authorities have the power to transfer a case either upon the request of an assessee or for their own reasons. Though the decision under Section 127 is subject to judicial review or even an appellate scrutiny, this Court for larger reasons would avoid an interpretation that would render the appellate jurisdiction of a High Court dependent upon the executive power. As a matter of principle, transfer of a case from one judicial forum to another judicial forum, without the intervention of a Court of law is against the independence of judiciary. This is true, particularly, when such a transfer can occur in exercise of pure executive power. This is a yet another reason for rejecting the interpretation adopted in the case of Sahara. 32. For the reasons stated above, we hold that the decision of the High Court of Delhi in Sahara and Aar Bee do not lay down the correct law and therefore, we overrule these judgments. 33. In conclusion, we hold that appeals against every decision of the ITAT shall lie only before the High Court within whose jurisdiction the Assessing Officer who passed the assessment order is situated. Even if the case or cases of an assessee are transferred in exercise of power under Section 127 of the Act, the High Court within whose jurisdiction the Assessing Officer has passed the order, shall continue to exercise the jurisdiction of appeal. This principle is applicable even if the transfer is under Section 127 for the same assessment year(s). 34. We will now deal with the decisions of certain High Court which have taken a view that the jurisdiction of the High Court must be based on the location of the ITAT. These judgments are CIT v. Parke Davis (India) Ltd. (ibid), CIT v. A.B.C. India Ltd. (2003) 126 Taxman 18 (Cal), CIT v. J.L. Marrison (India) Ltd. (2005) 272 ITR 321 (Cal), CIT v. Akzo Nobel India Ltd. (2014) 47 Taxmann.com 372 (Cal), Pr. CIT v. Sungard Solutions (I) Pvt. Ltd. (2019) 415 ITR 294 (Bom) and CIT v. Shree Ganapati Rolling Mills (P) Ltd. (2013) 356 ITR 586 (Gau) We have examined these cases in detail and found that the Assessing Officers in each of these cases were in fact not located within the territorial jurisdiction of these High Courts. For this reason, the aforesaid decisions are correct to the extent of these High Courts not exercising jurisdiction. However, while returning the files to be represented in the appropriate court, certain observations were made stating that the appeals could be filed in the High Court which exercises territorial jurisdiction over the concerned ITAT. These observations are only obiter. In any event they did not preclude the party from filing the appeal before the appropriate High Court where the Assessing Officers exercised jurisdiction. However, we are reiterating for clarity and certainty that the jurisdiction of a High Court is not dependent on the location of the ITAT, as sometimes a Bench of the ITAT exercises jurisdiction over plurality of states. | 0[ds]As Benches of the ITAT are constituted to exercise jurisdiction over more than one state, each state having a separate High Court, question arose as to which of the High Court is the appropriate Court for filing appeals under Section 260A. The question arose because Section 260A is open-textual and does not specify the High Court before which an appeal would lie in cases where Tribunals operated for plurality of States. This question came to be conclusively answered by the High Court of Delhi in the case of Seth Banarsi Dass Gupta v. Commissioner of Income Tax (1978) 113 ITR 817 (Del) , wherein it was held that the appropriate High Court would be the one where the Assessing Authority is situated. This judgment continuous to hold the field.The Punjab & Haryana High Court took the view that such a transfer would not change the principle laid down in Seth Banarasi Dass Gupta. However, the Delhi High Court in CIT v. Sahara India Financial Corporation Ltd. (2007) 294 ITR 363 (Del) and CIT v. Aar Bee Industries Ltd. (2013) 357 ITR 542 (Del) has taken a different view. The Delhi High Court held that an administrative order of transfer of cases will also have the consequence of transferring even the jurisdiction of the High Court. As there is a difference of opinion between the High Court of Punjab & Haryana on the one hand and the High Court of Delhi on the other, we are called upon to determine and declare the appropriate High Court for filing an appeal in such cases.3. Having considered the matter in detail, and while reversing the judgments of the Delhi High Court in Sahara and Aar Bee, we have also held that the appellate jurisdiction of the High Court stands on its own foundation and cannot be subject to the exercise of executive power to transfer a case from one Assessing Officer to another Assessing Officer.We appreciate the approach adopted by the learned Law Officer, as precious time of the Court could be saved by avoiding repetition of arguments. We were greatly benefited by the compilation of the precedents on the subject and the written note of Shri Rohit Jain and his team. We place on record the valuable assistance rendered by them.11.2 There is another aspect. As the High Courts have not pronounced upon the merits of the matter, we will not be entering into the merits of the dispute and our enquiry will be confined to the question as to which is the appropriate High Court for filing an appeal under Section 260A of the Act against a decision of the ITAT. Our enquiry will also extend to determining the appropriate High Court for appeals against order of ITAT where an order of transfer of case(s) from one Assessing Officer to another Assessing Officer even with respect to the same assessment year, has been passed under Section 127 of the Act.17. Keeping the above principle in mind, we will now return to the inquiry into the appropriate High Court for filing an appeal against an order of a bench of the ITAT exercising jurisdiction over more than one state. We notice that the issue has already fallen for consideration before a Division Bench of the High Court of Delhi way back in 1978 in the case of Seth Banarsi Dass Gupta. Having considered the matter in detail, the High Court of Delhi held that the most appropriate High Court for filing an appeal would be the one where the Assessing Officer is located. The decision was followed in Suresh Desai (supra) by Justice Lahoti (as he then was) and provided additional reasons in support of the same view. The interpretative choices are based on the following reasons, which we have reformulated as under:(I) As benches of the ITAT exercise jurisdiction over more than one state, Explanation to Standing Order No. 1 of 1954 and Standing Order No. 1 of 1967 issued under the Rules prescribe that, the jurisdiction of the ITAT should be based on the location of the Assessing Officer. The same principle should apply for determining the jurisdiction of the High Court for an appeal against the decision of the ITAT.(II) It would be appropriate for the ITAT to refer a question of law to the High Court within whose jurisdiction the Assessing Officer or the CIT which has decided the case is located, as these authorities would be bound to follow the decision of the concerned High Court.(III) This interpretation will also be in consonance with the expression in relation with any State, the High Court of that State provided in the definition of the High Court in Section 66(8) (under the present 1961 Act, it is Section 269).(IV) The appeals and references cannot be made to a High Court only on the basis that a bench of the ITAT is located within the jurisdiction of the said High Court, as it will create an anomalous situation for that as well as other High Courts.(V) In view of the doctrine of precedents and the rule of binding efficacy of law laid down by a High Court within its territorial jurisdiction, a question of law arsing for decision in a reference should be determined by the High Court which exercises territorial jurisdiction over the situs of the Assessing Officer (Suresh Desai).18. The principle laid in Seth Banarasi Dass is followed in Suresh Desai & Associates v. Commissioner of Income Tax (1998) 230 ITR 912 (Del) , Birla Cotton Spinning and Weaving Mills Ltd. v. Commissioner of Income Tax (1980) 123 ITR 354 (Del) , Commissioner of Income Tax v. Digvijay Chemicals Ltd. (2007) 294 ITR 359 (Del) and Commissioner of Income Tax v. Motorola India Ltd. (supra (note 7)) It is interesting to note that this basic principle is accepted and abided as a precedent even in the two subsequent judgments of the High Court of Delhi in Sahara and Aar Bee. Thus, it is well-settled that the appellate jurisdiction of a High Court under Section 260A is exercisable by a High Court within whose territorial jurisdiction the assessing officer is located.For example, in this very case, where the assessment order was passed by the Assessing Officer in Ghaziabad, the appeal therefrom was decided by the CIT (Appeals) IV, Kanpur and the appeal to the Tribunal was decided by ITAT, New Delhi, should the Lucknow Bench of the Allahabad High Court have jurisdiction or should the jurisdiction vest with the Punjab & Haryana High Court in whose territorial limits the transferee Assessing Officer is located.20. In Suresh Desai, the question relating to the consequences upon an order of transfer under Section 127 did arise for consideration. Apart from holding that the transfer order did not involve the assessment year with respect to which the appeals are concerned, the High Court of Delhi made an important observation that it is not that the jurisdiction to make assessment in respect of matters arising at Bombay have been conferred or transferred to Delhi by a reference to territory or persons or class of persons or incomes or class of income or cases or class of cases as contemplated by Section 120 of the Act. This view is also in consonance with the four principles laid down in Seth Banarasi Dass and it is further strengthened by the additional reasoning given by Justice Lahoti in Suresh Desai case. The same approach was adopted by the High Court of Delhi in Digvijay Chemicals where despite an order of transfer from Assessing Officer, Bulandshahar, to Assessing Officer, New Delhi, the High Court of Delhi held that it does not have the jurisdiction as the Assessing Officer was situated in Bulandshahar. Pertinently, even in Digvijay Chemicals, the transfer order related to a different assessment year.21. In Motorola India Ltd., a case decided by the High Court of Punjab & Haryana, the assessment year which was the subject of appeal was also the subject of a transfer order passed under Section 127 of the Act. In that case, the assessment took place in Bangalore, the appeal therefrom came to be decided in Bangalore and a further appeal was also decided by the ITAT in Bangalore. At this stage, the case was transferred under Section 127 of the Act from Assessing Officer, Bangalore, to Assessing Officer, Gurgaon. It is in this context that the assessee objected to the appeal filed by the Revenue before the High Court of Punjab & Haryana and the High Court accepted the contention and dismissed the appeal on the ground that Punjab & Haryana High Court has no jurisdiction. It was held that even if it is the same assessment year, the appropriate High Court would be the High Court of Karnataka. Unlike Suresh Desai and Digvijay Chemicals, in this case, the records of the same assessment years were transferred. The revenue relied on the Explanation to Section 127 of the Act to argue that the expression cases in the explanation shall cover proceedings filed/to be filed before a High Court as well. The High Court of Punjab & Haryana negatived this contention by holding that:12. … The reliance of the Revenue on the Explanation to section 127 of the Act with regard to the meaning of the expression case is wholly misplaced and is liable to be rejected because section 120 of the Act does not deal with jurisdiction of the Tribunal or the High Court….13. A conjoint reading of the aforementioned provisions makes it evident that the Director General or Chief Commissioner or Commissioner is empowered to transfer any case from one or more accessing officers subordinate to him to any other Assessing Officer. It also deals with the procedure when the case is transferred from one Accessing Officer subordinate to a Director General or Chief Commissioner or Commissioner to an Assessing Officer who is not subordinate to the same Director General, Chief Commissioner or Commissioner. The aforementioned situation and the definition of the expression case in relation to jurisdiction of an Assessing Officer is quite understandable but it has got nothing to do with the territorial jurisdiction of the Tribunal or High Courts merely because section 127 of the Act dealing with transfer has been incorporated in the same Chapter. Therefore, the argument raised is completely devoid of substance and we have no hesitation to reject the same.22. We will now refer to the decision of the High Court of Delhi in the case of Sahara, where the Court has taken a view that upon an order of transfer under Section 127 of the Act, the case of the assessee would get transferred lock, stock and barrel including the High Court. As per this decision, the High Court having jurisdiction over the situs of the transferee Assessing Officer alone would have jurisdiction.23. The facts involved the case of Sahara are that the assessment order was passed by Assessing Officer, Lucknow. Appeal against that order was decided by CIT (Appeals), Lucknow, and a further appeal was decided by ITAT, Lucknow. Pursuant to the ITAT order, an appeal was filed before the Lucknow Bench of the Allahabad High Court. During the pendency of this appeal, the records of the assessee came to be transferred from Lucknow to New Delhi. Hence, an appeal came to be filed before the High Court of Delhi as well. A preliminary objection was raised that the High Court of Delhi lacks jurisdiction as the Assessing Officer was situated in Lucknow. Departing from the long-standing decisions from Seth Banarasi Dass onwards, the Court rejected the contention and held that the High Court of Delhi had the jurisdiction to entertain the appeal. The relevant portion of the judgment is as under:-13. The order passed under Section 127(2) of the Act clearly relates to the case of the assessee mentioned in the schedule, and by virtue of the Explanation, all future proceedings that may be taken under the Act (obviously including an appeal under section 260A thereof) would now have to be in harmony with the order passed under section 127(2) of the Act. Consequently, the jurisdiction in respect of the case and the assessee having been shifted from Lucknow to Delhi, the Revenue could file the appeal under section 260A of the Act only in Delhi and it could not have filed an appeal in the Lucknow Bench of the Allahabad High Court.17. …. the effect of the transfer of jurisdiction from Lucknow to Delhi specifically arises in the present case and we are of the view that the jurisdiction in respect of the assessee having been transferred to Delhi lock, stock and barrel and all the records of the assessee also having been transferred from Lucknow to Delhi, it is only the High Court in Delhi that can entertain an appeal under section 260A of the Act directed against the order passed by the Tribunal on July 22, 2005. Our conclusion follows from a plain reading of the Explanation to section 127(4) of the Act as well as from the effect of the order dated July 29, 2005, passed by the Commissioner of Income-tax (Central), Kanpur, under section 127(2) of the Act. Consequently, with effect from September 29, 2005, (the date from which the order passed under section 127(2) of the Act is enforced) the jurisdiction in respect of the assessee for future proceedings under section 260A of the Act is with the Delhi High Court. Admittedly, the present appeals have been filed after September 29, 2005, and so they would be maintainable in this court and no other High Court.24. The decision in the case of Sahara is followed by a subsequent Bench of the High Court of Delhi in Aar Bee. In this case, the assessment order was passed in Jammu, an appeal against that order was decided by CIT (Appeals), Jammu, and thereafter, an appeal came to be decided by ITAT, Amritsar. Immediately after the ITAT order, the records of the assessee came to be transferred from Jammu to New Delhi by an order under Section 127 of the Act. Hence, an appeal against the ITAT order was filed before the High Court of Delhi. When the matter came up before the High Court of Delhi, it was contended that the High Court of Delhi did not have jurisdiction to entertain the appeal in as much as the situs of the Assessing Officer was in Jammu. In support, the decision of the High Court of Punjab & Haryana in Motorola, was relied upon. Rejecting the contention, differing with Motorola and following the judgment of its own Court in Sahara, it was held as under: -15. We are afraid and with respect we say so that we are unable to agree with the views expressed by the Punjab & Haryana High Court and are bound to follow the decision of this court in Sahara India (supra). We are not inclined to accept the view taken by the High Punjab & Haryana High Court, because while it is true that the reference to the case is with regard to the jurisdiction of an income-tax authority, it is also true that the jurisdiction of the High Court is determined by the situs of the Assessing Officer. When the Assessing Officer itself has been changed from one place to another, the High Court exercising jurisdiction in respect of the territory covered by the transferee Assessing Officer would be the one which would have jurisdiction to hear the appeal under Section 260-A....25. The reasoning adopted by the High Court of Delhi in Sahara is based only on the meaning that it attributed to the expression cases in the Explanation to Section 127(4) of the Act. The High Court of Delhi was of the view that cases must include within its sweep, not only the cases pending before the Authorities enlisted under Section 116 of the Act, but also the proceedings before the ITAT as well as a High Court. We are of the opinion that the High Court of Delhi has misread the scope and ambit of Section 127.We have no hesitation in our mind that the vesting of appellate jurisdiction has no bearing on judicial remedies provided in Chapter XX of the Act before the ITAT and the High Court. The mistake committed by the High Court was in assuming that the expression case in the Explanation to Sub- Section 4 of Section 127 has an overarching effect and would include the proceedings pending before the ITAT as well as a High Court. This fundamental error has led the Division Bench of the High Court of Delhi to come to a conclusion that an order of transfer made under Section 127 would have the effect of transferring the case lock, stock and barrel not only from the jurisdiction of the ITAT, but also from that of the High Court in which the Assessing Officer was located, and vest it in the High Court having jurisdiction over the transferee Assessing Officer. This erroneous interpretation was in fact advanced before other High Courts as well, but they were rejected straightaway. One instant example is the case of CIT v. Parke Davis (India) Ltd. (1999) 239 ITR 820 (AP), where the Andhra Pradesh High Court held: -…The interpretation sought to be placed on the Explanation to section 127 leads to incongruous results quite contrary to the scheme of the Act and has the effect of investing the prescribed authorities with the power to virtually interfere with the territorial jurisdiction of the concerned High Court. …27. With a slight digression from the main issue, we may note that the Assessee as well as the Revenue are on the same page in these appeals, taking the view that the decision of the High Court of Delhi in Sahara is not correctly decided. They may be right. However, as there was no serious contest at the bar, the principle suggested by the Assessee as accepted by the Revenue did not suffer strict scrutiny as is always the case in any contested case, and therefore, the Court is left to imagine the contrary proposition in support of the view taken in Sahara. We had no difficulty in conceptualising that, since every judge had once been a lawyer. We have raised and dealt with them in the following paragraphs.28. Returning to the analyses in the decision in Sahara, we have noticed that the Division Bench of the High Court of Delhi sought to distinguish the two decisions of the very same High Court in Suresh Desai and Digvijay Chemicals on the ground that those cases did not involve the transfer of cases of the very same assessment year. We will reformulate this as a proposition of law. If it is the accepted principle to determine the jurisdiction of a High Court under Section 260A of the Act on the basis of the location of the Assessing Officer who assessed the case, then, by the strength of the very same logic, upon transfer of a case to another Assessing Officer under Section 127, the jurisdiction under Section 260A must be with the High Court in whose jurisdiction the new Assessing Officer is located.29. The binding nature of decisions of an appellate court established under a statute on subordinate courts and tribunals within the territorial jurisdiction of the State, is a larger principle involving consistency, certainty and judicial discipline, and it has a direct bearing on the rule of law. This need for order and consistency in decision making must inform our interpretation of judicial remedies. An important reason adopted in the case of Seth Banarasi Dass Gupta, further highlighted by Justice Lahoti in Suresh Desai, is that a decision of a High Court is binding on subordinate courts as well as tribunals operating within its territorial jurisdiction. It is for this very reason that the Assessing Officer, Commissioner of Appeals and the ITAT operate under the concerned High Court as one unit, for consistency and systematic development of the law. It is also important to note that the decisions of the High Court in whose jurisdiction the transferee Assessing Officer is situated do not bind the Authorities or the ITAT which had passed orders before the transfer of the case has taken place. This creates an anomalous situation, as the erroneous principle adopted by the authority or the ITAT, even if corrected by the High Court outside its jurisdiction, would not be binding on them.30. The legal structure under the Income Tax Act commencing with Assessing Officer, the Commissioner of Appeals, ITAT and finally the High Court under Section 260A must be seen as a lineal progression of judicial remedies. Culmination of all these proceedings in question of law jurisdiction of the High Court under Section 260A of the Act is of special significance as it depicts the overarching judicial superintendence of the High Court over Tribunals and other Authorities operating within its territorial jurisdiction.31. The power of transfer exercisable under Section 127 is relatable only to the jurisdiction of the Income Tax Authorities. It has no bearing on the ITAT, much less on a High Court. If we accept the submission, it will have the effect of the executive having the power to determine the jurisdiction of a High Court. This can never be the intention of the Parliament. The jurisdiction of a High Court stands on its own footing by virtue of Section 260A read with Section 269 of the Act. While interpreting a judicial remedy, a Constitutional Court should not adopt an approach where the identity of the appellate forum would be contingent upon or vacillates subject to the exercise of some other power. Such an interpretation will clearly be against the interest of justice. Under Section 127, the authorities have the power to transfer a case either upon the request of an assessee or for their own reasons. Though the decision under Section 127 is subject to judicial review or even an appellate scrutiny, this Court for larger reasons would avoid an interpretation that would render the appellate jurisdiction of a High Court dependent upon the executive power. As a matter of principle, transfer of a case from one judicial forum to another judicial forum, without the intervention of a Court of law is against the independence of judiciary. This is true, particularly, when such a transfer can occur in exercise of pure executive power. This is a yet another reason for rejecting the interpretation adopted in the case of Sahara.32. For the reasons stated above, we hold that the decision of the High Court of Delhi in Sahara and Aar Bee do not lay down the correct law and therefore, we overrule these judgments.33. In conclusion, we hold that appeals against every decision of the ITAT shall lie only before the High Court within whose jurisdiction the Assessing Officer who passed the assessment order is situated. Even if the case or cases of an assessee are transferred in exercise of power under Section 127 of the Act, the High Court within whose jurisdiction the Assessing Officer has passed the order, shall continue to exercise the jurisdiction of appeal. This principle is applicable even if the transfer is under Section 127 for the same assessment year(s).34. We will now deal with the decisions of certain High Court which have taken a view that the jurisdiction of the High Court must be based on the location of the ITAT. These judgments are CIT v. Parke Davis (India) Ltd. (ibid), CIT v. A.B.C. India Ltd. (2003) 126 Taxman 18 (Cal), CIT v. J.L. Marrison (India) Ltd. (2005) 272 ITR 321 (Cal), CIT v. Akzo Nobel India Ltd. (2014) 47 Taxmann.com 372 (Cal), Pr. CIT v. Sungard Solutions (I) Pvt. Ltd. (2019) 415 ITR 294 (Bom) and CIT v. Shree Ganapati Rolling Mills (P) Ltd. (2013) 356 ITR 586 (Gau) We have examined these cases in detail and found that the Assessing Officers in each of these cases were in fact not located within the territorial jurisdiction of these High Courts. For this reason, the aforesaid decisions are correct to the extent of these High Courts not exercising jurisdiction. However, while returning the files to be represented in the appropriate court, certain observations were made stating that the appeals could be filed in the High Court which exercises territorial jurisdiction over the concerned ITAT. These observations are only obiter. In any event they did not preclude the party from filing the appeal before the appropriate High Court where the Assessing Officers exercised jurisdiction. However, we are reiterating for clarity and certainty that the jurisdiction of a High Court is not dependent on the location of the ITAT, as sometimes a Bench of the ITAT exercises jurisdiction over plurality of states. | 0 | 7,851 | 4,533 | ### Instruction:
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custody of the new Assessing Officer. It could be argued that the Assessing Officer who exercised the jurisdiction before its transfer will not be in a position to assist the High Court, further, he cannot implement the decision of that High Court, after it decides the question of law as he is no more the Assessing Officer. We will now proceed to deal with these arguments. 29. The binding nature of decisions of an appellate court established under a statute on subordinate courts and tribunals within the territorial jurisdiction of the State, is a larger principle involving consistency, certainty and judicial discipline, and it has a direct bearing on the rule of law. This need for order and consistency in decision making must inform our interpretation of judicial remedies. An important reason adopted in the case of Seth Banarasi Dass Gupta, further highlighted by Justice Lahoti in Suresh Desai, is that a decision of a High Court is binding on subordinate courts as well as tribunals operating within its territorial jurisdiction. It is for this very reason that the Assessing Officer, Commissioner of Appeals and the ITAT operate under the concerned High Court as one unit, for consistency and systematic development of the law. It is also important to note that the decisions of the High Court in whose jurisdiction the transferee Assessing Officer is situated do not bind the Authorities or the ITAT which had passed orders before the transfer of the case has taken place. This creates an anomalous situation, as the erroneous principle adopted by the authority or the ITAT, even if corrected by the High Court outside its jurisdiction, would not be binding on them. 30. The legal structure under the Income Tax Act commencing with Assessing Officer, the Commissioner of Appeals, ITAT and finally the High Court under Section 260A must be seen as a lineal progression of judicial remedies. Culmination of all these proceedings in question of law jurisdiction of the High Court under Section 260A of the Act is of special significance as it depicts the overarching judicial superintendence of the High Court over Tribunals and other Authorities operating within its territorial jurisdiction. 31. The power of transfer exercisable under Section 127 is relatable only to the jurisdiction of the Income Tax Authorities. It has no bearing on the ITAT, much less on a High Court. If we accept the submission, it will have the effect of the executive having the power to determine the jurisdiction of a High Court. This can never be the intention of the Parliament. The jurisdiction of a High Court stands on its own footing by virtue of Section 260A read with Section 269 of the Act. While interpreting a judicial remedy, a Constitutional Court should not adopt an approach where the identity of the appellate forum would be contingent upon or vacillates subject to the exercise of some other power. Such an interpretation will clearly be against the interest of justice. Under Section 127, the authorities have the power to transfer a case either upon the request of an assessee or for their own reasons. Though the decision under Section 127 is subject to judicial review or even an appellate scrutiny, this Court for larger reasons would avoid an interpretation that would render the appellate jurisdiction of a High Court dependent upon the executive power. As a matter of principle, transfer of a case from one judicial forum to another judicial forum, without the intervention of a Court of law is against the independence of judiciary. This is true, particularly, when such a transfer can occur in exercise of pure executive power. This is a yet another reason for rejecting the interpretation adopted in the case of Sahara. 32. For the reasons stated above, we hold that the decision of the High Court of Delhi in Sahara and Aar Bee do not lay down the correct law and therefore, we overrule these judgments. 33. In conclusion, we hold that appeals against every decision of the ITAT shall lie only before the High Court within whose jurisdiction the Assessing Officer who passed the assessment order is situated. Even if the case or cases of an assessee are transferred in exercise of power under Section 127 of the Act, the High Court within whose jurisdiction the Assessing Officer has passed the order, shall continue to exercise the jurisdiction of appeal. This principle is applicable even if the transfer is under Section 127 for the same assessment year(s). 34. We will now deal with the decisions of certain High Court which have taken a view that the jurisdiction of the High Court must be based on the location of the ITAT. These judgments are CIT v. Parke Davis (India) Ltd. (ibid), CIT v. A.B.C. India Ltd. (2003) 126 Taxman 18 (Cal), CIT v. J.L. Marrison (India) Ltd. (2005) 272 ITR 321 (Cal), CIT v. Akzo Nobel India Ltd. (2014) 47 Taxmann.com 372 (Cal), Pr. CIT v. Sungard Solutions (I) Pvt. Ltd. (2019) 415 ITR 294 (Bom) and CIT v. Shree Ganapati Rolling Mills (P) Ltd. (2013) 356 ITR 586 (Gau) We have examined these cases in detail and found that the Assessing Officers in each of these cases were in fact not located within the territorial jurisdiction of these High Courts. For this reason, the aforesaid decisions are correct to the extent of these High Courts not exercising jurisdiction. However, while returning the files to be represented in the appropriate court, certain observations were made stating that the appeals could be filed in the High Court which exercises territorial jurisdiction over the concerned ITAT. These observations are only obiter. In any event they did not preclude the party from filing the appeal before the appropriate High Court where the Assessing Officers exercised jurisdiction. However, we are reiterating for clarity and certainty that the jurisdiction of a High Court is not dependent on the location of the ITAT, as sometimes a Bench of the ITAT exercises jurisdiction over plurality of states.
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the accepted principle to determine the jurisdiction of a High Court under Section 260A of the Act on the basis of the location of the Assessing Officer who assessed the case, then, by the strength of the very same logic, upon transfer of a case to another Assessing Officer under Section 127, the jurisdiction under Section 260A must be with the High Court in whose jurisdiction the new Assessing Officer is located.29. The binding nature of decisions of an appellate court established under a statute on subordinate courts and tribunals within the territorial jurisdiction of the State, is a larger principle involving consistency, certainty and judicial discipline, and it has a direct bearing on the rule of law. This need for order and consistency in decision making must inform our interpretation of judicial remedies. An important reason adopted in the case of Seth Banarasi Dass Gupta, further highlighted by Justice Lahoti in Suresh Desai, is that a decision of a High Court is binding on subordinate courts as well as tribunals operating within its territorial jurisdiction. It is for this very reason that the Assessing Officer, Commissioner of Appeals and the ITAT operate under the concerned High Court as one unit, for consistency and systematic development of the law. It is also important to note that the decisions of the High Court in whose jurisdiction the transferee Assessing Officer is situated do not bind the Authorities or the ITAT which had passed orders before the transfer of the case has taken place. This creates an anomalous situation, as the erroneous principle adopted by the authority or the ITAT, even if corrected by the High Court outside its jurisdiction, would not be binding on them.30. The legal structure under the Income Tax Act commencing with Assessing Officer, the Commissioner of Appeals, ITAT and finally the High Court under Section 260A must be seen as a lineal progression of judicial remedies. Culmination of all these proceedings in question of law jurisdiction of the High Court under Section 260A of the Act is of special significance as it depicts the overarching judicial superintendence of the High Court over Tribunals and other Authorities operating within its territorial jurisdiction.31. The power of transfer exercisable under Section 127 is relatable only to the jurisdiction of the Income Tax Authorities. It has no bearing on the ITAT, much less on a High Court. If we accept the submission, it will have the effect of the executive having the power to determine the jurisdiction of a High Court. This can never be the intention of the Parliament. The jurisdiction of a High Court stands on its own footing by virtue of Section 260A read with Section 269 of the Act. While interpreting a judicial remedy, a Constitutional Court should not adopt an approach where the identity of the appellate forum would be contingent upon or vacillates subject to the exercise of some other power. Such an interpretation will clearly be against the interest of justice. Under Section 127, the authorities have the power to transfer a case either upon the request of an assessee or for their own reasons. Though the decision under Section 127 is subject to judicial review or even an appellate scrutiny, this Court for larger reasons would avoid an interpretation that would render the appellate jurisdiction of a High Court dependent upon the executive power. As a matter of principle, transfer of a case from one judicial forum to another judicial forum, without the intervention of a Court of law is against the independence of judiciary. This is true, particularly, when such a transfer can occur in exercise of pure executive power. This is a yet another reason for rejecting the interpretation adopted in the case of Sahara.32. For the reasons stated above, we hold that the decision of the High Court of Delhi in Sahara and Aar Bee do not lay down the correct law and therefore, we overrule these judgments.33. In conclusion, we hold that appeals against every decision of the ITAT shall lie only before the High Court within whose jurisdiction the Assessing Officer who passed the assessment order is situated. Even if the case or cases of an assessee are transferred in exercise of power under Section 127 of the Act, the High Court within whose jurisdiction the Assessing Officer has passed the order, shall continue to exercise the jurisdiction of appeal. This principle is applicable even if the transfer is under Section 127 for the same assessment year(s).34. We will now deal with the decisions of certain High Court which have taken a view that the jurisdiction of the High Court must be based on the location of the ITAT. These judgments are CIT v. Parke Davis (India) Ltd. (ibid), CIT v. A.B.C. India Ltd. (2003) 126 Taxman 18 (Cal), CIT v. J.L. Marrison (India) Ltd. (2005) 272 ITR 321 (Cal), CIT v. Akzo Nobel India Ltd. (2014) 47 Taxmann.com 372 (Cal), Pr. CIT v. Sungard Solutions (I) Pvt. Ltd. (2019) 415 ITR 294 (Bom) and CIT v. Shree Ganapati Rolling Mills (P) Ltd. (2013) 356 ITR 586 (Gau) We have examined these cases in detail and found that the Assessing Officers in each of these cases were in fact not located within the territorial jurisdiction of these High Courts. For this reason, the aforesaid decisions are correct to the extent of these High Courts not exercising jurisdiction. However, while returning the files to be represented in the appropriate court, certain observations were made stating that the appeals could be filed in the High Court which exercises territorial jurisdiction over the concerned ITAT. These observations are only obiter. In any event they did not preclude the party from filing the appeal before the appropriate High Court where the Assessing Officers exercised jurisdiction. However, we are reiterating for clarity and certainty that the jurisdiction of a High Court is not dependent on the location of the ITAT, as sometimes a Bench of the ITAT exercises jurisdiction over plurality of states.
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V. Venugopal & Others Vs. Siemens Limited | reads thus:-"19. No pension shall be payable except in the event provided as under:1. Benefits on superannuation:a) Subject to the provisions of sub-rule (b) below, a member on superannuation will be entitled to superannuation benefit commencing from the month following superannuation at the rate of 1% of Rs.3500/- per year of contributory service till life, with return of capital to the nominee on the pensioners death.b) To qualify for the benefit on superannuation a member shall have completed a minimum 10 years of continuous service including a contributory service of 5 years from the date of his joining the scheme.c) For employees who are on roll of the company at the effective date of the scheme and are superannuating will receive minimum of Rs.188/- with return of capital to the nominee after the death of a pensioner.d) Clause (b) will not be applicable to those employees who are on roll of the company at the time of introduction of the scheme and superannuating.2. Benefits on death or total permanent disablement while in service:On death or total permanent disablement of a member while in service, the beneficiary will be entitled to benefit at the rate of 1% of Rs.3500/- per year of contributory service of the member of Rs.500/- p.m. in case of death and Rs.1000/- p.m. in case of total permanent disability whichever is higher. The benefit being payable from the month following the date of the death/total permanent disablement of the member till the life time of the beneficiary, with return of capital to the nominee.3. Benefits on Separation:-On separation other than superannuation from service of a member by his registration/termination after completing a minimum of ten years of eligible service including a contributory service of five years from the date of his joining the scheme, the benefit to that member shall be in accordance with rule 19(1)(a) above payable from the month following the date on which the member would have superannuated had he continued in the service of the company i.e. 60 years of age.4. ................................. 5. ................................."6. Returning now to clause 16, it would be seen that superannuation age provided therein is 60 years as it says that every employee shall superannuate on attaining the age of 60 years. The next sentence therein that an employee may, with the consent of the employer, resign from the service of the employer before attaining the age of 60 years, if there is no cause existing at that justifying a dismissal, in our view, gives liberty to the employee to resign from the service of the company before attaining the age of 60 years with the consent of the employer. Nothing more can be read in that expression. Since the employees resigned from service, obviously as permitted under the pension rules with the consent of the employer, they cannot be said to have superannuated as the word "superannuation" is understood. We are benefited by the observations of the Supreme Court in the case of Reserve Bank of India v. Cecil Dennis Solomon, 2004 (100) FLR 441, wherein the Supreme Court stated that in service jurisprudence, the expressions superannuation, voluntary retirement, compulsory retirement and resignation convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation, it can be tendered at any time; but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. The Supreme Court further held that in the case of resignation, normally, retiral benefits are denied but in the case of voluntary retirement, the same is not denied. Clause 16 does not even artificially compare the resignation by an employee with the consent of the employer before attaining the age of 60 years with that of superannuation. The appeal must fail on this count alone.7. Even if we accept the contention of the appellants that clause 16 artificially brings in the separation of service by superannuation on resignation of an employee with the consent of the employer before attaining the age of 60 years, by virtue of clause 16, in view of the admitted fact that the employees had not completed contributory service of five years from the date of joining the scheme, the appellants cannot be held to be qualified for the benefit of superannuation. Clause 19(1)(b) as afore-quoted provides that to qualify for the benefit on superannuation, an employee must have completed minimum of ten years of continuous service including a contributory service of five years from the date of his joining the scheme. That none of the employees is qualified under clause 19(1)(b) is not in dispute. The counsel for the appellants, however, placed heavy reliance on clause 19(1)(d) which provides that clause (b) will not be applicable to those employees who are on the roll of the company at the introduction of the scheme and superannuating. In our considered view, clause (d) is only applicable to a situation where the employees are on the rolls of the employer at the time of introduction of the scheme and they were superannuating also at the time of introduction of the scheme; thereby these persons were not to be considered to be qualified for the benefit of superannuation as provided in clause (b). We fail to understand how clause (d) can be applied to the facts of the present case since admittedly the concerned employees were not superannuating at the time of introduction of the scheme. Admittedly, they resigned from service much after the introduction of the scheme with effect from 1.10.1992. Thus, the employees are not entitled to the benefit of the pension scheme entitled "Siemens Employees Superannuation Fund". The grant of the pension benefit by the Industrial Court, in the circumstances, was grossly erroneous and, therefore, no interference is called for in the impugned order whereby the single Judge set aside the order of the Industrial Court. | 0[ds]6. Returning now to clause 16, it would be seen that superannuation age provided therein is 60 years as it says that every employee shall superannuate on attaining the age of 60 years. The next sentence therein that an employee may, with the consent of the employer, resign from the service of the employer before attaining the age of 60 years, if there is no cause existing at that justifying a dismissal, in our view, gives liberty to the employee to resign from the service of the company before attaining the age of 60 years with the consent of the employer. Nothing more can be read in that expression. Since the employees resigned from service, obviously as permitted under the pension rules with the consent of the employer, they cannot be said to have superannuated as the word "superannuation" is understood. We are benefited by the observations of the Supreme Court in the case of Reserve Bank of India v. Cecil Dennis Solomon, 2004 (100) FLR 441, wherein the Supreme Court stated that in service jurisprudence, the expressionsry retirement andconvey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation, it can be tendered at any time; but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. The Supreme Court further held that in the case of resignation, normally, retiral benefits are denied but in the case of voluntary retirement, the same is not denied. Clause 16 does not even artificially compare the resignation by an employee with the consent of the employer before attaining the age of 60 years with that of superannuation. The appeal must fail on this count alone.7. Even if we accept the contention of the appellants that clause 16 artificially brings in the separation of service by superannuation on resignation of an employee with the consent of the employer before attaining the age of 60 years, by virtue of clause 16, in view of the admitted fact that the employees had not completed contributory service of five years from the date of joining the scheme, the appellants cannot be held to be qualified for the benefit of superannuation. Clause 19(1)(b) asprovides that to qualify for the benefit on superannuation, an employee must have completed minimum of ten years of continuous service including a contributory service of five years from the date of his joining the scheme. That none of the employees is qualified under clause 19(1)(b) is not in dispute. The counsel for the appellants, however, placed heavy reliance on clause 19(1)(d) which provides that clause (b) will not be applicable to those employees who are on the roll of the company at the introduction of the scheme and superannuating. In our considered view, clause (d) is only applicable to a situation where the employees are on the rolls of the employer at the time of introduction of the scheme and they were superannuating also at the time of introduction of the scheme; thereby these persons were not to be considered to be qualified for the benefit of superannuation as provided in clause (b). We fail to understand how clause (d) can be applied to the facts of the present case since admittedly the concerned employees were not superannuating at the time of introduction of the scheme. Admittedly, they resigned from service much after the introduction of the scheme with effect from 1.10.1992. Thus, the employees are not entitled to the benefit of the pension scheme entitled "Siemens Employees Superannuation Fund". The grant of the pension benefit by the Industrial Court, in the circumstances, was grossly erroneous and, therefore, no interference is called for in the impugned order whereby the single Judge set aside the order of the Industrial Court. | 0 | 1,551 | 743 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
reads thus:-"19. No pension shall be payable except in the event provided as under:1. Benefits on superannuation:a) Subject to the provisions of sub-rule (b) below, a member on superannuation will be entitled to superannuation benefit commencing from the month following superannuation at the rate of 1% of Rs.3500/- per year of contributory service till life, with return of capital to the nominee on the pensioners death.b) To qualify for the benefit on superannuation a member shall have completed a minimum 10 years of continuous service including a contributory service of 5 years from the date of his joining the scheme.c) For employees who are on roll of the company at the effective date of the scheme and are superannuating will receive minimum of Rs.188/- with return of capital to the nominee after the death of a pensioner.d) Clause (b) will not be applicable to those employees who are on roll of the company at the time of introduction of the scheme and superannuating.2. Benefits on death or total permanent disablement while in service:On death or total permanent disablement of a member while in service, the beneficiary will be entitled to benefit at the rate of 1% of Rs.3500/- per year of contributory service of the member of Rs.500/- p.m. in case of death and Rs.1000/- p.m. in case of total permanent disability whichever is higher. The benefit being payable from the month following the date of the death/total permanent disablement of the member till the life time of the beneficiary, with return of capital to the nominee.3. Benefits on Separation:-On separation other than superannuation from service of a member by his registration/termination after completing a minimum of ten years of eligible service including a contributory service of five years from the date of his joining the scheme, the benefit to that member shall be in accordance with rule 19(1)(a) above payable from the month following the date on which the member would have superannuated had he continued in the service of the company i.e. 60 years of age.4. ................................. 5. ................................."6. Returning now to clause 16, it would be seen that superannuation age provided therein is 60 years as it says that every employee shall superannuate on attaining the age of 60 years. The next sentence therein that an employee may, with the consent of the employer, resign from the service of the employer before attaining the age of 60 years, if there is no cause existing at that justifying a dismissal, in our view, gives liberty to the employee to resign from the service of the company before attaining the age of 60 years with the consent of the employer. Nothing more can be read in that expression. Since the employees resigned from service, obviously as permitted under the pension rules with the consent of the employer, they cannot be said to have superannuated as the word "superannuation" is understood. We are benefited by the observations of the Supreme Court in the case of Reserve Bank of India v. Cecil Dennis Solomon, 2004 (100) FLR 441, wherein the Supreme Court stated that in service jurisprudence, the expressions superannuation, voluntary retirement, compulsory retirement and resignation convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation, it can be tendered at any time; but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. The Supreme Court further held that in the case of resignation, normally, retiral benefits are denied but in the case of voluntary retirement, the same is not denied. Clause 16 does not even artificially compare the resignation by an employee with the consent of the employer before attaining the age of 60 years with that of superannuation. The appeal must fail on this count alone.7. Even if we accept the contention of the appellants that clause 16 artificially brings in the separation of service by superannuation on resignation of an employee with the consent of the employer before attaining the age of 60 years, by virtue of clause 16, in view of the admitted fact that the employees had not completed contributory service of five years from the date of joining the scheme, the appellants cannot be held to be qualified for the benefit of superannuation. Clause 19(1)(b) as afore-quoted provides that to qualify for the benefit on superannuation, an employee must have completed minimum of ten years of continuous service including a contributory service of five years from the date of his joining the scheme. That none of the employees is qualified under clause 19(1)(b) is not in dispute. The counsel for the appellants, however, placed heavy reliance on clause 19(1)(d) which provides that clause (b) will not be applicable to those employees who are on the roll of the company at the introduction of the scheme and superannuating. In our considered view, clause (d) is only applicable to a situation where the employees are on the rolls of the employer at the time of introduction of the scheme and they were superannuating also at the time of introduction of the scheme; thereby these persons were not to be considered to be qualified for the benefit of superannuation as provided in clause (b). We fail to understand how clause (d) can be applied to the facts of the present case since admittedly the concerned employees were not superannuating at the time of introduction of the scheme. Admittedly, they resigned from service much after the introduction of the scheme with effect from 1.10.1992. Thus, the employees are not entitled to the benefit of the pension scheme entitled "Siemens Employees Superannuation Fund". The grant of the pension benefit by the Industrial Court, in the circumstances, was grossly erroneous and, therefore, no interference is called for in the impugned order whereby the single Judge set aside the order of the Industrial Court.
### Response:
0
### Explanation:
6. Returning now to clause 16, it would be seen that superannuation age provided therein is 60 years as it says that every employee shall superannuate on attaining the age of 60 years. The next sentence therein that an employee may, with the consent of the employer, resign from the service of the employer before attaining the age of 60 years, if there is no cause existing at that justifying a dismissal, in our view, gives liberty to the employee to resign from the service of the company before attaining the age of 60 years with the consent of the employer. Nothing more can be read in that expression. Since the employees resigned from service, obviously as permitted under the pension rules with the consent of the employer, they cannot be said to have superannuated as the word "superannuation" is understood. We are benefited by the observations of the Supreme Court in the case of Reserve Bank of India v. Cecil Dennis Solomon, 2004 (100) FLR 441, wherein the Supreme Court stated that in service jurisprudence, the expressionsry retirement andconvey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation, it can be tendered at any time; but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. The Supreme Court further held that in the case of resignation, normally, retiral benefits are denied but in the case of voluntary retirement, the same is not denied. Clause 16 does not even artificially compare the resignation by an employee with the consent of the employer before attaining the age of 60 years with that of superannuation. The appeal must fail on this count alone.7. Even if we accept the contention of the appellants that clause 16 artificially brings in the separation of service by superannuation on resignation of an employee with the consent of the employer before attaining the age of 60 years, by virtue of clause 16, in view of the admitted fact that the employees had not completed contributory service of five years from the date of joining the scheme, the appellants cannot be held to be qualified for the benefit of superannuation. Clause 19(1)(b) asprovides that to qualify for the benefit on superannuation, an employee must have completed minimum of ten years of continuous service including a contributory service of five years from the date of his joining the scheme. That none of the employees is qualified under clause 19(1)(b) is not in dispute. The counsel for the appellants, however, placed heavy reliance on clause 19(1)(d) which provides that clause (b) will not be applicable to those employees who are on the roll of the company at the introduction of the scheme and superannuating. In our considered view, clause (d) is only applicable to a situation where the employees are on the rolls of the employer at the time of introduction of the scheme and they were superannuating also at the time of introduction of the scheme; thereby these persons were not to be considered to be qualified for the benefit of superannuation as provided in clause (b). We fail to understand how clause (d) can be applied to the facts of the present case since admittedly the concerned employees were not superannuating at the time of introduction of the scheme. Admittedly, they resigned from service much after the introduction of the scheme with effect from 1.10.1992. Thus, the employees are not entitled to the benefit of the pension scheme entitled "Siemens Employees Superannuation Fund". The grant of the pension benefit by the Industrial Court, in the circumstances, was grossly erroneous and, therefore, no interference is called for in the impugned order whereby the single Judge set aside the order of the Industrial Court.
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Jit Singh and Others Vs. State of Punjab and Others | order to be eligible for promotion, the Inspectors should have got six years "continuous" service, including service in an officiating as well as substantive capacity. We are therefore unable to think that an Inspector who had put in six years officiating service was not eligible for promotion as Deputy Superintendent of Police.7. It has next been argued that the requirement of six years service could not be relaxed by the State Government on August 21, 1963, or thereafter in 1965, because Rule 14 of the Rules as it stood until its substitution on Jan. 28, 1969, read as follows, -"Where the Government is satisfied that the operation of any of the rules causes undue hardship in any particular case, it may by order, dispense with or relax the requirement of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner, provided that the case is not dealt with in a manner less favourable to the person concerned than provided by the relevant rule."It has therefore been urged that the relaxation contemplated by that rule was restricted by considerations of "undue hardship", in any "particular case", and that it was not permissible for the State Government to reduce the requirement of continuous service from six years to four years for purposes of eligibility for promotion to the Punjab Police Service. The argument is correct because R. 14 as it stood at the relevant period of time when promotions of respondents (Nos. 4 to 37) were made, did not permit any general relaxation of the nature ordered by the State Government in 1963 or 1965. It is true that Rule 14 was amended and a new rule was inserted on January 28, 1969, to the following effect, -"7. General power to relax rules.- Where the Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons."That was a rule of general application, and it appears that there is justification for the argument of the learned counsel for the respondents that it could authorise the kind of relaxation which was made by the State Government in 1963 and in 1965, but the fact remains that it could not avail the State Government as the new rule came into force much later on January 28, 1969. It would thus follow that the respondents were not eligible for promotion because the relaxation which was ordered in 1963 and 1965 was not warranted by the old R. 14 as it stood at that time. The question however remains whether the appellants could possibly succeed in their appeal before us for that reason.8. While examining this aspect of the matter we shall have regard to the requirement of Rule 6, as it stood before its amendment on Jan. 28, 1969 and disregard the relaxation orders of 1963 and 1965 as they were not warranted by the provisions of that rule. And as that rule made a clear provision that only those Inspectors would be eligible for promotion who had got six years continuous service as Inspectors, it would follow that the appellants were not eligible for promotion until May 21, 1969 as they had been appointed only on May 21, 1963. In other words, they were not eligible for inclusion in list G which was prepared under sub-rule (2) of R. 6, as it was prepared in 1966 on the basis of the State Governments recommendations dated Jan. 7, 1966, and Sept., 29, 1966. It may be recalled that the State Government have categorically stated that they did not send any list thereafter, for the Commissions approval. We have made a reference to the facts and circumstances in which the Commission did not find it possible to finalise list G until 1970, but the fact remains that the list contained names up to the year 1966. In other words, the final list G related only to the year 1966, and as the appellants had not put in even four years of service by then, what to say of six years service in terms of Clause (a) of the proviso to sub-rule (1) of R. 6 of the Rules, their names could not possibly be included in that list. When that was so, they could not have promoted as Deputy Superintendent of Police because that was the basic requirement of sub-rule (2) of that rule. We have made a reference to the circumstances in which the State Government was driven to the necessity of making some ad hoc or temporary promotions because of the extra-ordinary situation which had developed on the border of the State, and as it was the Public Service Commission which delayed the finalisation of list G, it cannot be said that the ad hoc appointments of the respondents were wilfully made in derogation of the requirement of the Rules, or were meant to run down the appellants. In fact, as has been explained above, the appellants were in any view of the matter, not eligible for promotion as their names were not included in list G as it emerged from the Public Service Commission in 1970. The High Court therefore cannot be blamed if it took the view that as the appellants had not qualified for promotion when list G was drawn up by the State Government in 1966, they could not succeed in their claim in the writ petition. Their names did not appear in list G which was approved by the Commission in 1970, whereas the names of respondents Nos. 4 to 37 appeared in it and it is not in dispute that they had all completed 6 years continuous service much before the appellants. The appellants have not therefore been able to show that they had any legal right for promotion before the respondents. | 0[ds]A reading of part (a) of the proviso shows however that it cannot be said to restrict the eligibility for promotion only to the substantive holders of the post of Inspector. All that it permits is that, in order to be eligible for promotion, the Inspectors should have got six years "continuous" service, including service in an officiating as well as substantive capacity. We are therefore unable to think that an Inspector who had put in six years officiating service was not eligible for promotion as Deputy Superintendent ofargument is correct because R. 14 as it stood at the relevant period of time when promotions of respondents (Nos. 4 to 37) were made, did not permit any general relaxation of the nature ordered by the State Government in 1963 or 1965. It is true that Rule 14 was amended and a new rule was inserted on January 28, 1969, to the following effect,General power to relax rules.- Where the Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category ofwas a rule of general application, and it appears that there is justification for the argument of the learned counsel for the respondents that it could authorise the kind of relaxation which was made by the State Government in 1963 and in 1965, but the fact remains that it could not avail the State Government as the new rule came into force much later on January 28, 1969. It would thus follow that the respondents were not eligible for promotion because the relaxation which was ordered in 1963 and 1965 was not warranted by the old R. 14 as it stood at thathave made a reference to the facts and circumstances in which the Commission did not find it possible to finalise list G until 1970, but the fact remains that the list contained names up to the year 1966. In other words, the final list G related only to the year 1966, and as the appellants had not put in even four years of service by then, what to say of six years service in terms of Clause (a) of the proviso to sub-rule (1) of R. 6 of the Rules, their names could not possibly be included in that list. When that was so, they could not have promoted as Deputy Superintendent of Police because that was the basic requirement of sub-rule (2) of that rule. We have made a reference to the circumstances in which the State Government was driven to the necessity of making some ad hoc or temporary promotions because of the extra-ordinary situation which had developed on the border of the State, and as it was the Public Service Commission which delayed the finalisation of list G, it cannot be said that the ad hoc appointments of the respondents were wilfully made in derogation of the requirement of the Rules, or were meant to run down the appellants. In fact, as has been explained above, the appellants were in any view of the matter, not eligible for promotion as their names were not included in list G as it emerged from the Public Service Commission in 1970. The High Court therefore cannot be blamed if it took the view that as the appellants had not qualified for promotion when list G was drawn up by the State Government in 1966, they could not succeed in their claim in the writ petition. Their names did not appear in list G which was approved by the Commission in 1970, whereas the names of respondents Nos. 4 to 37 appeared in it and it is not in dispute that they had all completed 6 years continuous service much before the appellants. The appellants have not therefore been able to show that they had any legal right for promotion before the respondents. | 0 | 2,436 | 725 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
order to be eligible for promotion, the Inspectors should have got six years "continuous" service, including service in an officiating as well as substantive capacity. We are therefore unable to think that an Inspector who had put in six years officiating service was not eligible for promotion as Deputy Superintendent of Police.7. It has next been argued that the requirement of six years service could not be relaxed by the State Government on August 21, 1963, or thereafter in 1965, because Rule 14 of the Rules as it stood until its substitution on Jan. 28, 1969, read as follows, -"Where the Government is satisfied that the operation of any of the rules causes undue hardship in any particular case, it may by order, dispense with or relax the requirement of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner, provided that the case is not dealt with in a manner less favourable to the person concerned than provided by the relevant rule."It has therefore been urged that the relaxation contemplated by that rule was restricted by considerations of "undue hardship", in any "particular case", and that it was not permissible for the State Government to reduce the requirement of continuous service from six years to four years for purposes of eligibility for promotion to the Punjab Police Service. The argument is correct because R. 14 as it stood at the relevant period of time when promotions of respondents (Nos. 4 to 37) were made, did not permit any general relaxation of the nature ordered by the State Government in 1963 or 1965. It is true that Rule 14 was amended and a new rule was inserted on January 28, 1969, to the following effect, -"7. General power to relax rules.- Where the Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons."That was a rule of general application, and it appears that there is justification for the argument of the learned counsel for the respondents that it could authorise the kind of relaxation which was made by the State Government in 1963 and in 1965, but the fact remains that it could not avail the State Government as the new rule came into force much later on January 28, 1969. It would thus follow that the respondents were not eligible for promotion because the relaxation which was ordered in 1963 and 1965 was not warranted by the old R. 14 as it stood at that time. The question however remains whether the appellants could possibly succeed in their appeal before us for that reason.8. While examining this aspect of the matter we shall have regard to the requirement of Rule 6, as it stood before its amendment on Jan. 28, 1969 and disregard the relaxation orders of 1963 and 1965 as they were not warranted by the provisions of that rule. And as that rule made a clear provision that only those Inspectors would be eligible for promotion who had got six years continuous service as Inspectors, it would follow that the appellants were not eligible for promotion until May 21, 1969 as they had been appointed only on May 21, 1963. In other words, they were not eligible for inclusion in list G which was prepared under sub-rule (2) of R. 6, as it was prepared in 1966 on the basis of the State Governments recommendations dated Jan. 7, 1966, and Sept., 29, 1966. It may be recalled that the State Government have categorically stated that they did not send any list thereafter, for the Commissions approval. We have made a reference to the facts and circumstances in which the Commission did not find it possible to finalise list G until 1970, but the fact remains that the list contained names up to the year 1966. In other words, the final list G related only to the year 1966, and as the appellants had not put in even four years of service by then, what to say of six years service in terms of Clause (a) of the proviso to sub-rule (1) of R. 6 of the Rules, their names could not possibly be included in that list. When that was so, they could not have promoted as Deputy Superintendent of Police because that was the basic requirement of sub-rule (2) of that rule. We have made a reference to the circumstances in which the State Government was driven to the necessity of making some ad hoc or temporary promotions because of the extra-ordinary situation which had developed on the border of the State, and as it was the Public Service Commission which delayed the finalisation of list G, it cannot be said that the ad hoc appointments of the respondents were wilfully made in derogation of the requirement of the Rules, or were meant to run down the appellants. In fact, as has been explained above, the appellants were in any view of the matter, not eligible for promotion as their names were not included in list G as it emerged from the Public Service Commission in 1970. The High Court therefore cannot be blamed if it took the view that as the appellants had not qualified for promotion when list G was drawn up by the State Government in 1966, they could not succeed in their claim in the writ petition. Their names did not appear in list G which was approved by the Commission in 1970, whereas the names of respondents Nos. 4 to 37 appeared in it and it is not in dispute that they had all completed 6 years continuous service much before the appellants. The appellants have not therefore been able to show that they had any legal right for promotion before the respondents.
### Response:
0
### Explanation:
A reading of part (a) of the proviso shows however that it cannot be said to restrict the eligibility for promotion only to the substantive holders of the post of Inspector. All that it permits is that, in order to be eligible for promotion, the Inspectors should have got six years "continuous" service, including service in an officiating as well as substantive capacity. We are therefore unable to think that an Inspector who had put in six years officiating service was not eligible for promotion as Deputy Superintendent ofargument is correct because R. 14 as it stood at the relevant period of time when promotions of respondents (Nos. 4 to 37) were made, did not permit any general relaxation of the nature ordered by the State Government in 1963 or 1965. It is true that Rule 14 was amended and a new rule was inserted on January 28, 1969, to the following effect,General power to relax rules.- Where the Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category ofwas a rule of general application, and it appears that there is justification for the argument of the learned counsel for the respondents that it could authorise the kind of relaxation which was made by the State Government in 1963 and in 1965, but the fact remains that it could not avail the State Government as the new rule came into force much later on January 28, 1969. It would thus follow that the respondents were not eligible for promotion because the relaxation which was ordered in 1963 and 1965 was not warranted by the old R. 14 as it stood at thathave made a reference to the facts and circumstances in which the Commission did not find it possible to finalise list G until 1970, but the fact remains that the list contained names up to the year 1966. In other words, the final list G related only to the year 1966, and as the appellants had not put in even four years of service by then, what to say of six years service in terms of Clause (a) of the proviso to sub-rule (1) of R. 6 of the Rules, their names could not possibly be included in that list. When that was so, they could not have promoted as Deputy Superintendent of Police because that was the basic requirement of sub-rule (2) of that rule. We have made a reference to the circumstances in which the State Government was driven to the necessity of making some ad hoc or temporary promotions because of the extra-ordinary situation which had developed on the border of the State, and as it was the Public Service Commission which delayed the finalisation of list G, it cannot be said that the ad hoc appointments of the respondents were wilfully made in derogation of the requirement of the Rules, or were meant to run down the appellants. In fact, as has been explained above, the appellants were in any view of the matter, not eligible for promotion as their names were not included in list G as it emerged from the Public Service Commission in 1970. The High Court therefore cannot be blamed if it took the view that as the appellants had not qualified for promotion when list G was drawn up by the State Government in 1966, they could not succeed in their claim in the writ petition. Their names did not appear in list G which was approved by the Commission in 1970, whereas the names of respondents Nos. 4 to 37 appeared in it and it is not in dispute that they had all completed 6 years continuous service much before the appellants. The appellants have not therefore been able to show that they had any legal right for promotion before the respondents.
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The Hindustan Vidyut Products Ltd Vs. State of Rajasthan | that certain amount of adjusting the cost of raw material had not been awarded in favour of the respondent and it is stated therein that this apparent error should be corrected in the award. The arbitrator acknowledgment the objection having been raised and a letter being sent to him but he expressed his helplessness to consider the same as after pronouncement of the award he had become functus officio. The respondent filed an application in Suit No. 122 of 1979 before the District Judge, Jaipur city, under Sections 15 and 16 of the Arbitration Act, 1940 for correcting the award. The learned Judge rejected the claim made by the respondent and made the award the rule of the court. Against that order an appeal was filed in the High Court and the High Court allowed the appeal and modified the award directing the appellant to pay a further sum of Rs. 11,38,800.48 to the company as the cost of raw material which is stated to have been admitted by the company in the statement of claim. Hence this appeal by special leave. 4. After referring to the decisions of this Court in Hindustan Construction Company Limited v. State of J & K, 1992(4) SCC 217; State of Bihar v. Hanuman Mal Jain, 1997(11) SCC 40; M.C.D. v. Jagannath Ashok Kumar, 1987(4) SCC 497 and Naraindar Lilaram Adnani v. Narsingdas Naraindas Adnani & ors., 1995 Supp. (1) SCC 312. it is submitted that the finding of the High Court that the arbitrator has failed by over-sight to consider the claim of the respondent for a sum of Rs. 11,38,800.48 is not permissible at all and that the award needed modification is not correct and the cope of interference in such matter is very much limited. The learned counsel for the respondents urged that the High Court had correctly given effect to what was obvious from the pleadings and no dispute regarding the same had arisen for adjudication. 5. The arbitrator set out the claims of both the parties and made an award without setting out reasons for making such an award. One of the claims made by the appellant has been referred to by us earlier in the course of this order which excludes one of the amounts, i.e., Rs. 11,38,800.48 thus making a claim after deducting this amount for a sum of Rs. 9,68,149.31 and the respondents had claimed return of left over quantities of aluminium products as its equivalent in money is a sum of Rs. 47,27,771.20. The arbitrator considered this aspect of matter as follows :- "On merits I hold an consideration of the entire evidence including accounts relating to bill sent by the company to the Government that the company refused to supply the remaining 478 kms. of conducts in December 1973 and this refusal had no justification. Thus the company committed breach of contract in December 1973. I compute damages for this breach in December 1973 at Rs. 33,93,800. The Government in its statement of claim and the learned counsel for both the parties during arguments stated that Rs. 19,39,867.40 should be deducted as contract price of 478 kms. of conductor from Rs. 33,93,800 to arrive at the amount of damages payable by the company. Thus the company is liable to Pay Rs. 33,93,800/- to arrive at the amount of damages payable by the company. Thus the company is liable to pay Rs. 14,53,932.60 to he Government. Thus the Government is entitled to recover Rs. 14,53,474.54 from the company. However, the Government on 15.11.75 had recovered Rs. 15,67,278.54 from the company by encashing bank guarantee under orders of the Supreme Court. Therefore, now the Government has to refund Rs. 1,13,804/- to the company. The Supreme Court in its order had also directed that if the Government has to refund any sum from the amount recovered under its order, then the Government will refund the same with interest at the rate that the company paid to its Bankers. The Dena Bank, New Delhi, has certified that it has been charging interest at the rate of 16% per from the company since April 1975. The correctness of this rate has not been challenged on behalf of the Government. Therefore the Government is liable to pay interest @ 16% per annum from 15.11.75 on Rs. 1,13,804.00 till its payment. No other point was argued before us. Accordingly I hold after final adjustment that the company is entitled to recover as refund from the Government Rs. 1,13,804.00 with the interest @ 16% per annum from 15.11.75 till realisation." "The Government claims return of certain amount of aluminium and steel wire quantities specified in its statement of claims. Its claim is that the Government imported aluminium and purchase steel wire through the company exclusively for manufacture of 3130 kms. of Panther conductor. The company failed to supply 478 kms. of Panthan conductor and the said material to that extent is with the company. Accordingly, the company is liable to return the left over quantities or to pay its equivalent amounting to Rs. 47,27,771.20. I fail to see any force in this claim and I reject it." 6. When the claim either for return of the raw material or for its price had been rejected, we fail to see as to how the respondent becomes entitled for adjustment of the amount regarding raw material supplied out it cannot be termed as an inadvertent error of a clerical or arithmetical nature which can be corrected under Section 15 of the Arbitration Act. The High Court has exceeded its jurisdiction in interfering with the award particularly when the award was a non-speaking award and the claims made by the parties have been borne in mind by the arbitrator in passing the award and the arbitrator had not omitted any claim made by any or the parties. Therefore, we think the High Court was not justified in interfering with the award which was made the rule of the court by the District Judge, Jaipur city. | 1[ds]6. When the claim either for return of the raw material or for its price had been rejected, we fail to see as to how the respondent becomes entitled for adjustment of the amount regarding raw material supplied out it cannot be termed as an inadvertent error of a clerical or arithmetical nature which can be corrected under Section 15 of the Arbitration Act. The High Court has exceeded its jurisdiction in interfering with the award particularly when the award was aaward and the claims made by the parties have been borne in mind by the arbitrator in passing the award and the arbitrator had not omitted any claim made by any or the parties. Therefore, we think the High Court was not justified in interfering with the award which was made the rule of the court by the District Judge, Jaipur city. | 1 | 1,285 | 155 | ### Instruction:
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that certain amount of adjusting the cost of raw material had not been awarded in favour of the respondent and it is stated therein that this apparent error should be corrected in the award. The arbitrator acknowledgment the objection having been raised and a letter being sent to him but he expressed his helplessness to consider the same as after pronouncement of the award he had become functus officio. The respondent filed an application in Suit No. 122 of 1979 before the District Judge, Jaipur city, under Sections 15 and 16 of the Arbitration Act, 1940 for correcting the award. The learned Judge rejected the claim made by the respondent and made the award the rule of the court. Against that order an appeal was filed in the High Court and the High Court allowed the appeal and modified the award directing the appellant to pay a further sum of Rs. 11,38,800.48 to the company as the cost of raw material which is stated to have been admitted by the company in the statement of claim. Hence this appeal by special leave. 4. After referring to the decisions of this Court in Hindustan Construction Company Limited v. State of J & K, 1992(4) SCC 217; State of Bihar v. Hanuman Mal Jain, 1997(11) SCC 40; M.C.D. v. Jagannath Ashok Kumar, 1987(4) SCC 497 and Naraindar Lilaram Adnani v. Narsingdas Naraindas Adnani & ors., 1995 Supp. (1) SCC 312. it is submitted that the finding of the High Court that the arbitrator has failed by over-sight to consider the claim of the respondent for a sum of Rs. 11,38,800.48 is not permissible at all and that the award needed modification is not correct and the cope of interference in such matter is very much limited. The learned counsel for the respondents urged that the High Court had correctly given effect to what was obvious from the pleadings and no dispute regarding the same had arisen for adjudication. 5. The arbitrator set out the claims of both the parties and made an award without setting out reasons for making such an award. One of the claims made by the appellant has been referred to by us earlier in the course of this order which excludes one of the amounts, i.e., Rs. 11,38,800.48 thus making a claim after deducting this amount for a sum of Rs. 9,68,149.31 and the respondents had claimed return of left over quantities of aluminium products as its equivalent in money is a sum of Rs. 47,27,771.20. The arbitrator considered this aspect of matter as follows :- "On merits I hold an consideration of the entire evidence including accounts relating to bill sent by the company to the Government that the company refused to supply the remaining 478 kms. of conducts in December 1973 and this refusal had no justification. Thus the company committed breach of contract in December 1973. I compute damages for this breach in December 1973 at Rs. 33,93,800. The Government in its statement of claim and the learned counsel for both the parties during arguments stated that Rs. 19,39,867.40 should be deducted as contract price of 478 kms. of conductor from Rs. 33,93,800 to arrive at the amount of damages payable by the company. Thus the company is liable to Pay Rs. 33,93,800/- to arrive at the amount of damages payable by the company. Thus the company is liable to pay Rs. 14,53,932.60 to he Government. Thus the Government is entitled to recover Rs. 14,53,474.54 from the company. However, the Government on 15.11.75 had recovered Rs. 15,67,278.54 from the company by encashing bank guarantee under orders of the Supreme Court. Therefore, now the Government has to refund Rs. 1,13,804/- to the company. The Supreme Court in its order had also directed that if the Government has to refund any sum from the amount recovered under its order, then the Government will refund the same with interest at the rate that the company paid to its Bankers. The Dena Bank, New Delhi, has certified that it has been charging interest at the rate of 16% per from the company since April 1975. The correctness of this rate has not been challenged on behalf of the Government. Therefore the Government is liable to pay interest @ 16% per annum from 15.11.75 on Rs. 1,13,804.00 till its payment. No other point was argued before us. Accordingly I hold after final adjustment that the company is entitled to recover as refund from the Government Rs. 1,13,804.00 with the interest @ 16% per annum from 15.11.75 till realisation." "The Government claims return of certain amount of aluminium and steel wire quantities specified in its statement of claims. Its claim is that the Government imported aluminium and purchase steel wire through the company exclusively for manufacture of 3130 kms. of Panther conductor. The company failed to supply 478 kms. of Panthan conductor and the said material to that extent is with the company. Accordingly, the company is liable to return the left over quantities or to pay its equivalent amounting to Rs. 47,27,771.20. I fail to see any force in this claim and I reject it." 6. When the claim either for return of the raw material or for its price had been rejected, we fail to see as to how the respondent becomes entitled for adjustment of the amount regarding raw material supplied out it cannot be termed as an inadvertent error of a clerical or arithmetical nature which can be corrected under Section 15 of the Arbitration Act. The High Court has exceeded its jurisdiction in interfering with the award particularly when the award was a non-speaking award and the claims made by the parties have been borne in mind by the arbitrator in passing the award and the arbitrator had not omitted any claim made by any or the parties. Therefore, we think the High Court was not justified in interfering with the award which was made the rule of the court by the District Judge, Jaipur city.
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6. When the claim either for return of the raw material or for its price had been rejected, we fail to see as to how the respondent becomes entitled for adjustment of the amount regarding raw material supplied out it cannot be termed as an inadvertent error of a clerical or arithmetical nature which can be corrected under Section 15 of the Arbitration Act. The High Court has exceeded its jurisdiction in interfering with the award particularly when the award was aaward and the claims made by the parties have been borne in mind by the arbitrator in passing the award and the arbitrator had not omitted any claim made by any or the parties. Therefore, we think the High Court was not justified in interfering with the award which was made the rule of the court by the District Judge, Jaipur city.
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M/S RAMNATH EXPORTS PVT. LTD Vs. VINITA MEHTA & ANR | raised for filing only one appeal and still the said defect was not rectified by the appellant; f. Learned counsel placed reliance on following judgments to substantiate the submissions – i. Sri Gangai Vinayagar Temple & Anr. Vs. Meenakshi Ammal & Ors., (2015) 3 SCC 624 ; ii. V. Natarajan Vs. SKS Ispat & Power Ltd. & Ors., Civil Appeal No.3327 of 2020) iii. B. Santoshamma & Anr. Vs. D. Sarla & Anr., 2020 SCC OnLine SC 756; 8. After having heard learned counsel for parties and on perusal of the material available, we have read the provision of Section 96 of CPC, which provides for filing of an appeal from the decree by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Courts. It is also settled that an appeal is a continuation of the proceedings of the original court. Ordinarily, in the first appeal, the appellate jurisdiction involves a re-hearing on law as well as on fact as invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law are open for consideration by re-appreciating the material and evidence. Therefore, the first appellate court is required to address on all the issues and decide the appeal assigning valid reasons either in support or against by re-appraisal. The court of first appeal must record its findings dealing all the issues, considering oral as well as documentary evidence led by the parties. 9. In the instant case, it is not disputed that appellant herein filed CLMA, i.e., application seeking permission to file single appeal against the common judgment as well as the two separate decrees passed in consolidated suits. Further, as is evident from the record, especially from the order dated 18.07.2008, the High Court at the time of admission of the appeal specifically directed that CLMA be listed for disposal after expiry of four weeks time given to both parties to file counter as well as rejoinder affidavits. The relevant portion of the said order is reproduced for ready reference as under – …….Learned Counsel for the respondent wants to file objection against CLMA No.4365/2008. Two weeks time is given to file objection/counter affidavit. Thereafter two weeks time is given to file rejoinder by the appellant. List this application for disposal after the expiry of aforesaid period……. 10. The contention of the appellant with vehemence is that the application CLMA seeking permission to file joint appeal against common judgment and two decrees has not been decided by the impugned order, though at the time of admitting the appeal and issuing notice, objections were called. In the counter-affidavit filed by the respondent even before this Court, the said fact has not been contested or refuted. In the order, it has also not been mentioned that dismissal of the appeal would lead to decide all pending applications including CLMA. As per record, it is clear that the High Court admitted the appeal on 18.07.2008 and CLMA was awaiting its fate for almost about a decade. By the impugned order passed on 04.07.2018, first appeal was dismissed accepting the preliminary objection regarding maintainability applying the principle of res-judicata. There is not even any without observation that permission as sought to file one appeal cannot be granted. The record indicates that the CLMA filed by the appellant seeking permission to file one appeal was not decided. It is to observe, once at the time of admission of first appeal, despite having objection of maintainability it was admitted asking reply and rejoinder on CLMA, the High Court ought to have decided the said application. Thus, prior to deciding the preliminary objection, the High Court should have decided the said CLMA, either granting leave to file a single appeal or refusing to entertain one appeal against one judgment and two decrees passed in two suits after consolidation. In case, the High Court would have rejected the said CLMA, the appellant could have availed the opportunity to file separate appeal against the judgment and decree passed in Civil Suit No.411 of 1989. Without deciding the CLMA and accepting the preliminary objections, dismissing the appeal as barred by res-judicata, primarily appears contrary to the spirit of its own order dated 18.07.2008. In our considered view also, the approach adopted by High Court is not correct, because on dismissal of the CLMA, the appellant might have had the opportunity to rectify the defect by way of filing separate appeal under Section 96 of CPC challenging the same judgment with separate decree passed in Civil Suit No.411 of 1989. Converse to it, if this Court proceeds to consider the merit of the contentions raised in the said CLMA and record the findings in negative, it would effectively render the appellant remediless, therefore, we refrain ourselves from examining the merits of CLMA. It is a trite law that the procedural defect may fall within the purview of irregularity and capable of being cured, but it should not be allowed to defeat the substantive right accrued to the litigant without affording reasonable opportunity. Therefore, in our considered view, non-adjudication of the CLMA application, and upholding the preliminary objection of non-maintainability of one appeal by High Court has caused serious prejudice to the appellant. 11. In view of the foregoing, this Court is not expressing any opinion regarding correctness of the findings on the applicability of res-judicata, except to observe that those findings as arrived in the impugned order would not sustain because of not deciding the application CLMA filed by appellant seeking permission to file one appeal against a common judgment passed in a consolidated suit with two separate decrees. Therefore, in the light of the preceding discussion, approach adopted by the High Court in dismissing the admitted first appeal after a lapse of decade without deciding the CLMA has effectively deprived the appellant of its right to take its recourse by rectifying the defect and to be heard on merits. | 1[ds]8. After having heard learned counsel for parties and on perusal of the material available, we have read the provision of Section 96 of CPC, which provides for filing of an appeal from the decree by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Courts. It is also settled that an appeal is a continuation of the proceedings of the original court. Ordinarily, in the first appeal, the appellate jurisdiction involves a re-hearing on law as well as on fact as invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law are open for consideration by re-appreciating the material and evidence. Therefore, the first appellate court is required to address on all the issues and decide the appeal assigning valid reasons either in support or against by re-appraisal. The court of first appeal must record its findings dealing all the issues, considering oral as well as documentary evidence led by the parties.9. In the instant case, it is not disputed that appellant herein filed CLMA, i.e., application seeking permission to file single appeal against the common judgment as well as the two separate decrees passed in consolidated suits. Further, as is evident from the record, especially from the order dated 18.07.2008, the High Court at the time of admission of the appeal specifically directed that CLMA be listed for disposal after expiry of four weeks time given to both parties to file counter as well as rejoinder affidavits.In the counter-affidavit filed by the respondent even before this Court, the said fact has not been contested or refuted. In the order, it has also not been mentioned that dismissal of the appeal would lead to decide all pending applications including CLMA. As per record, it is clear that the High Court admitted the appeal on 18.07.2008 and CLMA was awaiting its fate for almost about a decade. By the impugned order passed on 04.07.2018, first appeal was dismissed accepting the preliminary objection regarding maintainability applying the principle of res-judicata. There is not even any without observation that permission as sought to file one appeal cannot be granted. The record indicates that the CLMA filed by the appellant seeking permission to file one appeal was not decided. It is to observe, once at the time of admission of first appeal, despite having objection of maintainability it was admitted asking reply and rejoinder on CLMA, the High Court ought to have decided the said application.Thus, prior to deciding the preliminary objection, the High Court should have decided the said CLMA, either granting leave to file a single appeal or refusing to entertain one appeal against one judgment and two decrees passed in two suits after consolidation. In case, the High Court would have rejected the said CLMA, the appellant could have availed the opportunity to file separate appeal against the judgment and decree passed in Civil Suit No.411 of 1989. Without deciding the CLMA and accepting the preliminary objections, dismissing the appeal as barred by res-judicata, primarily appears contrary to the spirit of its own order dated 18.07.2008. In our considered view also, the approach adopted by High Court is not correct, because on dismissal of the CLMA, the appellant might have had the opportunity to rectify the defect by way of filing separate appeal under Section 96 of CPC challenging the same judgment with separate decree passed in Civil Suit No.411 of 1989. Converse to it, if this Court proceeds to consider the merit of the contentions raised in the said CLMA and record the findings in negative, it would effectively render the appellant remediless, therefore, we refrain ourselves from examining the merits of CLMA. It is a trite law that the procedural defect may fall within the purview of irregularity and capable of being cured, but it should not be allowed to defeat the substantive right accrued to the litigant without affording reasonable opportunity. Therefore, in our considered view, non-adjudication of the CLMA application, and upholding the preliminary objection of non-maintainability of one appeal by High Court has caused serious prejudice to the appellant.11. In view of the foregoing, this Court is not expressing any opinion regarding correctness of the findings on the applicability of res-judicata, except to observe that those findings as arrived in the impugned order would not sustain because of not deciding the application CLMA filed by appellant seeking permission to file one appeal against a common judgment passed in a consolidated suit with two separate decrees. Therefore, in the light of the preceding discussion, approach adopted by the High Court in dismissing the admitted first appeal after a lapse of decade without deciding the CLMA has effectively deprived the appellant of its right to take its recourse by rectifying the defect and to be heard on merits. | 1 | 2,526 | 881 | ### Instruction:
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raised for filing only one appeal and still the said defect was not rectified by the appellant; f. Learned counsel placed reliance on following judgments to substantiate the submissions – i. Sri Gangai Vinayagar Temple & Anr. Vs. Meenakshi Ammal & Ors., (2015) 3 SCC 624 ; ii. V. Natarajan Vs. SKS Ispat & Power Ltd. & Ors., Civil Appeal No.3327 of 2020) iii. B. Santoshamma & Anr. Vs. D. Sarla & Anr., 2020 SCC OnLine SC 756; 8. After having heard learned counsel for parties and on perusal of the material available, we have read the provision of Section 96 of CPC, which provides for filing of an appeal from the decree by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Courts. It is also settled that an appeal is a continuation of the proceedings of the original court. Ordinarily, in the first appeal, the appellate jurisdiction involves a re-hearing on law as well as on fact as invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law are open for consideration by re-appreciating the material and evidence. Therefore, the first appellate court is required to address on all the issues and decide the appeal assigning valid reasons either in support or against by re-appraisal. The court of first appeal must record its findings dealing all the issues, considering oral as well as documentary evidence led by the parties. 9. In the instant case, it is not disputed that appellant herein filed CLMA, i.e., application seeking permission to file single appeal against the common judgment as well as the two separate decrees passed in consolidated suits. Further, as is evident from the record, especially from the order dated 18.07.2008, the High Court at the time of admission of the appeal specifically directed that CLMA be listed for disposal after expiry of four weeks time given to both parties to file counter as well as rejoinder affidavits. The relevant portion of the said order is reproduced for ready reference as under – …….Learned Counsel for the respondent wants to file objection against CLMA No.4365/2008. Two weeks time is given to file objection/counter affidavit. Thereafter two weeks time is given to file rejoinder by the appellant. List this application for disposal after the expiry of aforesaid period……. 10. The contention of the appellant with vehemence is that the application CLMA seeking permission to file joint appeal against common judgment and two decrees has not been decided by the impugned order, though at the time of admitting the appeal and issuing notice, objections were called. In the counter-affidavit filed by the respondent even before this Court, the said fact has not been contested or refuted. In the order, it has also not been mentioned that dismissal of the appeal would lead to decide all pending applications including CLMA. As per record, it is clear that the High Court admitted the appeal on 18.07.2008 and CLMA was awaiting its fate for almost about a decade. By the impugned order passed on 04.07.2018, first appeal was dismissed accepting the preliminary objection regarding maintainability applying the principle of res-judicata. There is not even any without observation that permission as sought to file one appeal cannot be granted. The record indicates that the CLMA filed by the appellant seeking permission to file one appeal was not decided. It is to observe, once at the time of admission of first appeal, despite having objection of maintainability it was admitted asking reply and rejoinder on CLMA, the High Court ought to have decided the said application. Thus, prior to deciding the preliminary objection, the High Court should have decided the said CLMA, either granting leave to file a single appeal or refusing to entertain one appeal against one judgment and two decrees passed in two suits after consolidation. In case, the High Court would have rejected the said CLMA, the appellant could have availed the opportunity to file separate appeal against the judgment and decree passed in Civil Suit No.411 of 1989. Without deciding the CLMA and accepting the preliminary objections, dismissing the appeal as barred by res-judicata, primarily appears contrary to the spirit of its own order dated 18.07.2008. In our considered view also, the approach adopted by High Court is not correct, because on dismissal of the CLMA, the appellant might have had the opportunity to rectify the defect by way of filing separate appeal under Section 96 of CPC challenging the same judgment with separate decree passed in Civil Suit No.411 of 1989. Converse to it, if this Court proceeds to consider the merit of the contentions raised in the said CLMA and record the findings in negative, it would effectively render the appellant remediless, therefore, we refrain ourselves from examining the merits of CLMA. It is a trite law that the procedural defect may fall within the purview of irregularity and capable of being cured, but it should not be allowed to defeat the substantive right accrued to the litigant without affording reasonable opportunity. Therefore, in our considered view, non-adjudication of the CLMA application, and upholding the preliminary objection of non-maintainability of one appeal by High Court has caused serious prejudice to the appellant. 11. In view of the foregoing, this Court is not expressing any opinion regarding correctness of the findings on the applicability of res-judicata, except to observe that those findings as arrived in the impugned order would not sustain because of not deciding the application CLMA filed by appellant seeking permission to file one appeal against a common judgment passed in a consolidated suit with two separate decrees. Therefore, in the light of the preceding discussion, approach adopted by the High Court in dismissing the admitted first appeal after a lapse of decade without deciding the CLMA has effectively deprived the appellant of its right to take its recourse by rectifying the defect and to be heard on merits.
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8. After having heard learned counsel for parties and on perusal of the material available, we have read the provision of Section 96 of CPC, which provides for filing of an appeal from the decree by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Courts. It is also settled that an appeal is a continuation of the proceedings of the original court. Ordinarily, in the first appeal, the appellate jurisdiction involves a re-hearing on law as well as on fact as invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law are open for consideration by re-appreciating the material and evidence. Therefore, the first appellate court is required to address on all the issues and decide the appeal assigning valid reasons either in support or against by re-appraisal. The court of first appeal must record its findings dealing all the issues, considering oral as well as documentary evidence led by the parties.9. In the instant case, it is not disputed that appellant herein filed CLMA, i.e., application seeking permission to file single appeal against the common judgment as well as the two separate decrees passed in consolidated suits. Further, as is evident from the record, especially from the order dated 18.07.2008, the High Court at the time of admission of the appeal specifically directed that CLMA be listed for disposal after expiry of four weeks time given to both parties to file counter as well as rejoinder affidavits.In the counter-affidavit filed by the respondent even before this Court, the said fact has not been contested or refuted. In the order, it has also not been mentioned that dismissal of the appeal would lead to decide all pending applications including CLMA. As per record, it is clear that the High Court admitted the appeal on 18.07.2008 and CLMA was awaiting its fate for almost about a decade. By the impugned order passed on 04.07.2018, first appeal was dismissed accepting the preliminary objection regarding maintainability applying the principle of res-judicata. There is not even any without observation that permission as sought to file one appeal cannot be granted. The record indicates that the CLMA filed by the appellant seeking permission to file one appeal was not decided. It is to observe, once at the time of admission of first appeal, despite having objection of maintainability it was admitted asking reply and rejoinder on CLMA, the High Court ought to have decided the said application.Thus, prior to deciding the preliminary objection, the High Court should have decided the said CLMA, either granting leave to file a single appeal or refusing to entertain one appeal against one judgment and two decrees passed in two suits after consolidation. In case, the High Court would have rejected the said CLMA, the appellant could have availed the opportunity to file separate appeal against the judgment and decree passed in Civil Suit No.411 of 1989. Without deciding the CLMA and accepting the preliminary objections, dismissing the appeal as barred by res-judicata, primarily appears contrary to the spirit of its own order dated 18.07.2008. In our considered view also, the approach adopted by High Court is not correct, because on dismissal of the CLMA, the appellant might have had the opportunity to rectify the defect by way of filing separate appeal under Section 96 of CPC challenging the same judgment with separate decree passed in Civil Suit No.411 of 1989. Converse to it, if this Court proceeds to consider the merit of the contentions raised in the said CLMA and record the findings in negative, it would effectively render the appellant remediless, therefore, we refrain ourselves from examining the merits of CLMA. It is a trite law that the procedural defect may fall within the purview of irregularity and capable of being cured, but it should not be allowed to defeat the substantive right accrued to the litigant without affording reasonable opportunity. Therefore, in our considered view, non-adjudication of the CLMA application, and upholding the preliminary objection of non-maintainability of one appeal by High Court has caused serious prejudice to the appellant.11. In view of the foregoing, this Court is not expressing any opinion regarding correctness of the findings on the applicability of res-judicata, except to observe that those findings as arrived in the impugned order would not sustain because of not deciding the application CLMA filed by appellant seeking permission to file one appeal against a common judgment passed in a consolidated suit with two separate decrees. Therefore, in the light of the preceding discussion, approach adopted by the High Court in dismissing the admitted first appeal after a lapse of decade without deciding the CLMA has effectively deprived the appellant of its right to take its recourse by rectifying the defect and to be heard on merits.
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H. H. Raja Harinder Singh Vs. S.Karnail Singh | anything as election agent". Counsel for the appellant relies on these observations, and argues that on the finding of the Tribunal that the 25 men had been in service for a long time, there could be no question of their having been employed for work in connection with election, and that they were therefore neither election agents nor was the salary paid to them Payment on account of any employment in connection with the election. But then considering the effect of the clerks of the company taking part in the election, Philimore, J. observed:"...... I am certainly inclined to think that if a business man takes his business clerks and employees them for election work which, if he had not business clerks, would be normally done by paid clerks, he ought to return their salaries as part of his expenses".Counsel for respondent strongly relies on these observations. But then, the point was not actually decided by Philimore, J., as the evidence relating to the matter was incomplete, and Piford, J. expressly reserved his opinion on the question. In view of the remarks of Sankey, J. in the Borough of Oxford Case, (1924) 7 OM and 49 at pp. 56-57 (C), in the course of his argument, it is doubtful how far the observations of Philimore, J. quoted above could be accepted as good law. They were, however, adopted in two decisions of the Election Tribunals of this country, to which our attention was invited by Mr. Chatterjee.14. In the Amritsar Case, Hammonds Election Cases 83 (D), the following observation occurs."We also consider that if any men in the service of the respondent were put on election work, their wages for the period should have been shown in the return. (See (1910) 6 OM and H 1 (B))".The words "put on election work", in this passage suggest that the employees had been taken out of their original work. As there is no discussion of the present question, the authority of this decision is, in any event, little. In Farrukhabad Case, Hammonds Election Cases 349 (E), this passage as also the observations of Philimore, J. were quoted, and in accordance therewith, it was held that "the salaries of Tilakdhari Singh, Kundan Singh and Drigpal Singh for the period they worked in connection with the election of the respondent No. 1 should have been shown in the return". It was found in that case that Tilakdhari Singh worked exclusively for 30 days in connection with the election and Kundan Singh and Drigpal Singh would appear to have similarly devoted themselves to election work for certain periods. None of these cases has considered what would amount to employment in connection with election, when the persons had been previously employed on other work; and they throw no light on the present question.15. The position may thus be summed up:(1) For R. 118 to apply, two conditions must be satisfied, viz., there should have been an employment by the candidate of a person in connection with an election, and such employment should have been for payment.(2) Where a person has been in the employment of the candidate even prior to his election and his duties do not include work in election and he takes part in election, whether he is to be regarded as employed in connection with the election will depend on the nature of the work which he performs during the election.(3) When the work which he does in election is casual and is in addition to the normal work for which he has been employed, he is not within R. 118. But if his work in connection with the election is such that he could be regarded as having been taken out of his previous work and put on election work, then he would be within R. 118.(4) Whether a person who has been previously employed by the candidate on other work should be held to have been employed in connection with election is a question of fact to be decided on the evidence in each case.16. In the present case, the finding is that 25 persons belonging to the staff of the appellant had taken part in the election. It has been found that they had been in the service of the appellant for long time and that their appointment was not colourable for election purposes. It has also been found that they were not paid anything extra for what work they might have done in connection with the election. But there is no finding that having regard to the work which they are proved to have done, they must be taken to have been relieved of their original work and put on election work.In the absence of such a finding, it cannot be held that R. 118 had been infringed. It is possible that the Election Tribunal did not appreciate the true legal position and has in consequence failed to record the findings requisite for a decision on R. 118, and that would be a good ground on which we could, if the justice of the case required it, set aside the order and direct the matter to be heard afresh and disposed of by another Tribunal in accordance with law. But we do not consider that this is a fit case for passing such an order. The evidence adduced by the first respondent is very largely to the effect that the appellants men did election work in the morning or in the evening, that is, out of office hours. That shows that the work of the staff was in addition to their normal duties, and on the principles stated above, they could not be held to have been employed in connection with the election. As the first respondent does not appear himself to have understood the true position under R. 118 and has failed to adduce evidence requisite for a decision of the question, he must fail, the burden being on him to establish that that Rule had been infringed. | 1[ds]5. This argument proceeds on an interpretation of S. 10 of the General Clauses Act which, in our opinion, is erroneous. Broadly stated, the object of the section is, to enable a person to do what he could have done on a holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a Court or office, and that period expires on a holiday then according to the section the act should be considered to have been done within that period, if it is done on the next day on which the Court or office is open. For that section to apply, therefore, all that is requisite is that there should be a period prescribed, and that period should expire on a holiday. Now, it cannot be denied that the period of fourteen days provided in R. 119 (a) for presentation of an election petition is a period prescribed, and that is its true character, whether the words used are "within fourteen days" or "not later than fourteen days".That the appellant between these two expressions is without substance will be clear beyond all doubt, when regard is had to S. 81 of the Act. Section 81 (1) enacts that the election petition may be presented "within such time as may be prescribed", and it is under this section that R. 119 has been framed. It is obvious that the rule- making authority could not have intended to go further than what the section itself had enacted, andif the language of the Rule is construed in conjunction with and under the coverage of the section under which it is framed, the words "not later than fourteen days" must be held to mean the same thing as "within a period of fourteen days". Reference in this connection should be made to the heading of R. 119 which is, "Time within which an election petition shall be presented". We entertain no doubt that the Legislature has used both the expressions as meaning the same thing, and there are accordingly no grounds for holding that S. 10 is not applicable to petitions falling within R. 119.6. We are also unable to read in the proviso to S. 37 of the Act an intention generally to exclude the operation of S. 10 of the General Clauses Act in the construction of Rules, as that will be against the plain language of R. 2(6). It should be noted that that proviso applies only to S. 30 (c) of the Act, and it is possible that the Legislature might have considered it doubtful whether S. 30 (c) would, having regard to its terms, fall within S. 10 of the General Clauses Act and enacted the proviso ex abundanti cautela. The operation of such a beneficient enactment as S. 10 of the General Clauses Act is not, in our opinion, to be cut down on such unsubstantial grounds as have been urged before us.We are accordingly of opinion that the petition which the respondent filed on May 18,1954 is entitled to the protection afforded by that section and is in time.7. We should add that the appellant also raised the contention that if we agreed with him that the election petition was not presented in time, we should hold that the order of the Election Commission admitting the petition was not one of condonation within the proviso to, S. 85, because that proceeded on the footing that the petition was in time, and did not amount to a decision that if it was not, there were sufficient grounds for excusing the delay. We are not disposed to agree with this contention; but in the view which we have taken that the petition is in time, it is unnecessary to consider it.In our opinion, neither of these contentions is well-founded. Rule 118 does not require that the person engaged by a candidate to work in the election should have been specially employed for the purpose of the election. It is sufficient, on the wording of the Rule, that that person is employed in connection with the election.In the present case, the finding is that 25 persons belonging to the staff of the appellant had taken part in the election. It has been found that they had been in the service of the appellant for long time and that their appointment was not colourable for election purposes. It has also been found that they were not paid anything extra for what work they might have done in connection with the election. But there is no finding that having regard to the work which they are proved to have done, they must be taken to have been relieved of their original work and put on election work.In the absence of such a finding, it cannot be held that R. 118 had been infringed. It is possible that the Election Tribunal did not appreciate the true legal position and has in consequence failed to record the findings requisite for a decision on R. 118, and that would be a good ground on which we could, if the justice of the case required it, set aside the order and direct the matter to be heard afresh and disposed of by another Tribunal in accordance with law. But we do not consider that this is a fit case for passing such an order. The evidence adduced by the first respondent is very largely to the effect that the appellants men did election work in the morning or in the evening, that is, out of office hours. That shows that the work of the staff was in addition to their normal duties, and on the principles stated above, they could not be held to have been employed in connection with the election. As the first respondent does not appear himself to have understood the true position under R. 118 and has failed to adduce evidence requisite for a decision of the question, he must fail, the burden being on him to establish that that Rule had been infringed. | 1 | 4,497 | 1,115 | ### Instruction:
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anything as election agent". Counsel for the appellant relies on these observations, and argues that on the finding of the Tribunal that the 25 men had been in service for a long time, there could be no question of their having been employed for work in connection with election, and that they were therefore neither election agents nor was the salary paid to them Payment on account of any employment in connection with the election. But then considering the effect of the clerks of the company taking part in the election, Philimore, J. observed:"...... I am certainly inclined to think that if a business man takes his business clerks and employees them for election work which, if he had not business clerks, would be normally done by paid clerks, he ought to return their salaries as part of his expenses".Counsel for respondent strongly relies on these observations. But then, the point was not actually decided by Philimore, J., as the evidence relating to the matter was incomplete, and Piford, J. expressly reserved his opinion on the question. In view of the remarks of Sankey, J. in the Borough of Oxford Case, (1924) 7 OM and 49 at pp. 56-57 (C), in the course of his argument, it is doubtful how far the observations of Philimore, J. quoted above could be accepted as good law. They were, however, adopted in two decisions of the Election Tribunals of this country, to which our attention was invited by Mr. Chatterjee.14. In the Amritsar Case, Hammonds Election Cases 83 (D), the following observation occurs."We also consider that if any men in the service of the respondent were put on election work, their wages for the period should have been shown in the return. (See (1910) 6 OM and H 1 (B))".The words "put on election work", in this passage suggest that the employees had been taken out of their original work. As there is no discussion of the present question, the authority of this decision is, in any event, little. In Farrukhabad Case, Hammonds Election Cases 349 (E), this passage as also the observations of Philimore, J. were quoted, and in accordance therewith, it was held that "the salaries of Tilakdhari Singh, Kundan Singh and Drigpal Singh for the period they worked in connection with the election of the respondent No. 1 should have been shown in the return". It was found in that case that Tilakdhari Singh worked exclusively for 30 days in connection with the election and Kundan Singh and Drigpal Singh would appear to have similarly devoted themselves to election work for certain periods. None of these cases has considered what would amount to employment in connection with election, when the persons had been previously employed on other work; and they throw no light on the present question.15. The position may thus be summed up:(1) For R. 118 to apply, two conditions must be satisfied, viz., there should have been an employment by the candidate of a person in connection with an election, and such employment should have been for payment.(2) Where a person has been in the employment of the candidate even prior to his election and his duties do not include work in election and he takes part in election, whether he is to be regarded as employed in connection with the election will depend on the nature of the work which he performs during the election.(3) When the work which he does in election is casual and is in addition to the normal work for which he has been employed, he is not within R. 118. But if his work in connection with the election is such that he could be regarded as having been taken out of his previous work and put on election work, then he would be within R. 118.(4) Whether a person who has been previously employed by the candidate on other work should be held to have been employed in connection with election is a question of fact to be decided on the evidence in each case.16. In the present case, the finding is that 25 persons belonging to the staff of the appellant had taken part in the election. It has been found that they had been in the service of the appellant for long time and that their appointment was not colourable for election purposes. It has also been found that they were not paid anything extra for what work they might have done in connection with the election. But there is no finding that having regard to the work which they are proved to have done, they must be taken to have been relieved of their original work and put on election work.In the absence of such a finding, it cannot be held that R. 118 had been infringed. It is possible that the Election Tribunal did not appreciate the true legal position and has in consequence failed to record the findings requisite for a decision on R. 118, and that would be a good ground on which we could, if the justice of the case required it, set aside the order and direct the matter to be heard afresh and disposed of by another Tribunal in accordance with law. But we do not consider that this is a fit case for passing such an order. The evidence adduced by the first respondent is very largely to the effect that the appellants men did election work in the morning or in the evening, that is, out of office hours. That shows that the work of the staff was in addition to their normal duties, and on the principles stated above, they could not be held to have been employed in connection with the election. As the first respondent does not appear himself to have understood the true position under R. 118 and has failed to adduce evidence requisite for a decision of the question, he must fail, the burden being on him to establish that that Rule had been infringed.
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the General Clauses Act which, in our opinion, is erroneous. Broadly stated, the object of the section is, to enable a person to do what he could have done on a holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a Court or office, and that period expires on a holiday then according to the section the act should be considered to have been done within that period, if it is done on the next day on which the Court or office is open. For that section to apply, therefore, all that is requisite is that there should be a period prescribed, and that period should expire on a holiday. Now, it cannot be denied that the period of fourteen days provided in R. 119 (a) for presentation of an election petition is a period prescribed, and that is its true character, whether the words used are "within fourteen days" or "not later than fourteen days".That the appellant between these two expressions is without substance will be clear beyond all doubt, when regard is had to S. 81 of the Act. Section 81 (1) enacts that the election petition may be presented "within such time as may be prescribed", and it is under this section that R. 119 has been framed. It is obvious that the rule- making authority could not have intended to go further than what the section itself had enacted, andif the language of the Rule is construed in conjunction with and under the coverage of the section under which it is framed, the words "not later than fourteen days" must be held to mean the same thing as "within a period of fourteen days". Reference in this connection should be made to the heading of R. 119 which is, "Time within which an election petition shall be presented". We entertain no doubt that the Legislature has used both the expressions as meaning the same thing, and there are accordingly no grounds for holding that S. 10 is not applicable to petitions falling within R. 119.6. We are also unable to read in the proviso to S. 37 of the Act an intention generally to exclude the operation of S. 10 of the General Clauses Act in the construction of Rules, as that will be against the plain language of R. 2(6). It should be noted that that proviso applies only to S. 30 (c) of the Act, and it is possible that the Legislature might have considered it doubtful whether S. 30 (c) would, having regard to its terms, fall within S. 10 of the General Clauses Act and enacted the proviso ex abundanti cautela. The operation of such a beneficient enactment as S. 10 of the General Clauses Act is not, in our opinion, to be cut down on such unsubstantial grounds as have been urged before us.We are accordingly of opinion that the petition which the respondent filed on May 18,1954 is entitled to the protection afforded by that section and is in time.7. We should add that the appellant also raised the contention that if we agreed with him that the election petition was not presented in time, we should hold that the order of the Election Commission admitting the petition was not one of condonation within the proviso to, S. 85, because that proceeded on the footing that the petition was in time, and did not amount to a decision that if it was not, there were sufficient grounds for excusing the delay. We are not disposed to agree with this contention; but in the view which we have taken that the petition is in time, it is unnecessary to consider it.In our opinion, neither of these contentions is well-founded. Rule 118 does not require that the person engaged by a candidate to work in the election should have been specially employed for the purpose of the election. It is sufficient, on the wording of the Rule, that that person is employed in connection with the election.In the present case, the finding is that 25 persons belonging to the staff of the appellant had taken part in the election. It has been found that they had been in the service of the appellant for long time and that their appointment was not colourable for election purposes. It has also been found that they were not paid anything extra for what work they might have done in connection with the election. But there is no finding that having regard to the work which they are proved to have done, they must be taken to have been relieved of their original work and put on election work.In the absence of such a finding, it cannot be held that R. 118 had been infringed. It is possible that the Election Tribunal did not appreciate the true legal position and has in consequence failed to record the findings requisite for a decision on R. 118, and that would be a good ground on which we could, if the justice of the case required it, set aside the order and direct the matter to be heard afresh and disposed of by another Tribunal in accordance with law. But we do not consider that this is a fit case for passing such an order. The evidence adduced by the first respondent is very largely to the effect that the appellants men did election work in the morning or in the evening, that is, out of office hours. That shows that the work of the staff was in addition to their normal duties, and on the principles stated above, they could not be held to have been employed in connection with the election. As the first respondent does not appear himself to have understood the true position under R. 118 and has failed to adduce evidence requisite for a decision of the question, he must fail, the burden being on him to establish that that Rule had been infringed.
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SANT LAL GUPTA Vs. UMESH KUMAR JAIN | discussed in the meeting and response of the General Body could be placed on record before the next date of hearing.Learned counsel for the alleged-contemnors shall also file individual affidavits of undertaking on behalf of every single alleged-contemnor indicating his/her willingness to deposit a sum of Rupees thirty lakhs into the account of the Society so that appropriate orders can be passed on the next date of hearing. The affidavit of undertaking must also indicate the time-line within which such deposit can be made.?7. Thereafter, affidavits were filed by all the alleged contemnors indicating their willingness to deposit a sum of Rs.30 lakhs as stated in the order dated 10.01.2019. A General Body meeting was convened on 24.02.2019 which was attended by 73 members including 14 persons who have been litigating and are interested in getting back the possession of the apartments, whereas the alleged contemnors, having lost the status as members, could not vote. 43 members voted against the proposal of having a new building constructed, while 30 members voted in favour of the proposal. Nine Postal ballots received after the meeting showed that all nine members had cast their votes in support of the new construction. Thus, the voting pattern was:- 43 votes against the proposal and 39 votes in favour of the proposal.8. The matter thereafter came up on 28.02.2019 when following order was passed:-" In accordance with the direction issued by this Court on 10.01.2019, a General Body Meeting of the Society was held under the Chairmanship of the Administrator on 24.02.2019. Minutes of the Meeting are enclosed in the Affidavit tendered across the bar by the Administrator. The affidavit is taken on record.Mrs. Kiran Bhardwaj, learned counsel has also filed affidavit on behalf of some of the alleged contemnors pursuant to the directions issued in the order dated 10.01.2019. 11 of the alleged contemnors have thus filed affidavits, which are taken on record. Copies of these affidavits be given to the other side. Further, pursuant to the direction issued on the last occasion, an affidavit has also been filed on behalf of the North Delhi Municipal Corporation, para 3 whereof reads as under:?3. That accordingly, on last date of hearing i.e. on 10.01.2019 this Hon?ble Court has directed the Municipal Corporation of Delhi (North), to file its response as to whether such tower can be constructed and whether it would be within the FAR permissible for the society.In regard to the above order dated 10.01.2019, it is respectfully stated that there is no record pertaining to approved layout that there is no record pertaining to approved layout plan/completion plan of Modern Cooperative Group Housing Society Limited available in the department, so as to ascertain the balance FAR availing for further construction by the society. Further, it is submitted that new tower with 18 dwelling units can be constructed only if balance ground coverage and FAR is available as against permissible ground coverage and permissible FAR prescribed for group housing in MPD-2021 under clause 4.4.3, B- Residential Plot – Group Housing mentioning as below:1. Maxi, Ground Coverage: 33.3% (in case addition of alteration of existing DUs for availing balance FAR ground coverage upto 40% may be allowed.2. Maximum FAR: 2003. Height: NR (Subject to clearance from AAI/Fire Department and other statutory bodies.4. Parking: 2.0 ECS/100 sqm built up area and 0.5 ECS/100 sqm for EWS/Service Personal Housing.?Since the Minutes of the General Body Meeting dated 24.02.2019 has taken a particular stand, we direct the Administrator to place on record, for our perusal, complete record with respect to the said meeting including E-mails and letters received by the Administrator in respect of said meeting.9. We have heard Mr. S.D. Singh, learned Advocate for the contempt petitioners, Ms. Kiran Bhardwaj, learned Advocate for alleged contemnors, Mr. Praveen Swarup, learned Advocate for the Municipal Corporation of Delhi and all other learned Advocates. Mr. S. D. Singh very fairly submitted that if the contempt petitioners were assured of possession of apartments, they would be having no objection to support the cause of the alleged contemnors in having a new building constructed by the society. Consequently, the voting pattern which effectively was 43 votes against the proposal and 39 votes in favour of the proposal would then drastically change and would be 29 votes against the proposal and 53 votes in favour of the proposal.10. Some of the salient features in the matter are:- 1. The alleged contemnors have violated the orders passed by this Court and despite having furnished appropriate undertakings, have failed to vacate and hand over possession. But there are certain equities in their favour; in that they were inducted as members not clandestinely but against the resultant vacancies after expulsion of certain members, that they had paid all the instalments in time, that on the basis of such instalments paid by the members including the alleged contemnors the construction was completed, and that they were put in possession of the apartments soon thereafter.2. It is only as a result of the expulsion orders of the contempt petitioners getting set aside that the alleged contemnors have to vacate their apartments and make way for the contempt petitioners.3. The society had raised amounts and was benefited from two sets of persons that is the alleged contemnors as well as the contempt petitioners and the fact of the matter is that the society is presently having funds to the tune of more than Rs.4 crores.11. Going by the reports made by the Architect a new building can be constructed with 18 apartments, which means that after satisfying the requirements of all the alleged contemnors there will still be some apartments left, from the sale of which money for construction can be garnered.Furthermore, according to the Architect, within the FAR available to it, the society can construct such new building. The Municipal Corporation of Delhi has also in principle agreed that if FAR is available, the authority would not have any objection to grant permission for construction of a new building. | 1[ds]10. Some of the salient features in the matterThe alleged contemnors have violated the orders passed by this Court and despite having furnished appropriate undertakings, have failed to vacate and hand over possession. But there are certain equities in their favour; in that they were inducted as members not clandestinely but against the resultant vacancies after expulsion of certain members, that they had paid all the instalments in time, that on the basis of such instalments paid by the members including the alleged contemnors the construction was completed, and that they were put in possession of the apartments soon thereafter.2. It is only as a result of the expulsion orders of the contempt petitioners getting set aside that the alleged contemnors have to vacate their apartments and make way for the contempt petitioners.3. The society had raised amounts and was benefited from two sets of persons that is the alleged contemnors as well as the contempt petitioners and the fact of the matter is that the society is presently having funds to the tune of more than Rs.4 crores.Going by the reports made by the Architect a new building can be constructed with 18 apartments, which means that after satisfying the requirements of all the alleged contemnors there will still be some apartments left, from the sale of which money for construction can be garnered.Furthermore, according to the Architect, within the FAR available to it, the society can construct such new building. The Municipal Corporation of Delhi has also in principle agreed that if FAR is available, the authority would not have any objection to grant permission for construction of a new building. | 1 | 3,695 | 294 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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discussed in the meeting and response of the General Body could be placed on record before the next date of hearing.Learned counsel for the alleged-contemnors shall also file individual affidavits of undertaking on behalf of every single alleged-contemnor indicating his/her willingness to deposit a sum of Rupees thirty lakhs into the account of the Society so that appropriate orders can be passed on the next date of hearing. The affidavit of undertaking must also indicate the time-line within which such deposit can be made.?7. Thereafter, affidavits were filed by all the alleged contemnors indicating their willingness to deposit a sum of Rs.30 lakhs as stated in the order dated 10.01.2019. A General Body meeting was convened on 24.02.2019 which was attended by 73 members including 14 persons who have been litigating and are interested in getting back the possession of the apartments, whereas the alleged contemnors, having lost the status as members, could not vote. 43 members voted against the proposal of having a new building constructed, while 30 members voted in favour of the proposal. Nine Postal ballots received after the meeting showed that all nine members had cast their votes in support of the new construction. Thus, the voting pattern was:- 43 votes against the proposal and 39 votes in favour of the proposal.8. The matter thereafter came up on 28.02.2019 when following order was passed:-" In accordance with the direction issued by this Court on 10.01.2019, a General Body Meeting of the Society was held under the Chairmanship of the Administrator on 24.02.2019. Minutes of the Meeting are enclosed in the Affidavit tendered across the bar by the Administrator. The affidavit is taken on record.Mrs. Kiran Bhardwaj, learned counsel has also filed affidavit on behalf of some of the alleged contemnors pursuant to the directions issued in the order dated 10.01.2019. 11 of the alleged contemnors have thus filed affidavits, which are taken on record. Copies of these affidavits be given to the other side. Further, pursuant to the direction issued on the last occasion, an affidavit has also been filed on behalf of the North Delhi Municipal Corporation, para 3 whereof reads as under:?3. That accordingly, on last date of hearing i.e. on 10.01.2019 this Hon?ble Court has directed the Municipal Corporation of Delhi (North), to file its response as to whether such tower can be constructed and whether it would be within the FAR permissible for the society.In regard to the above order dated 10.01.2019, it is respectfully stated that there is no record pertaining to approved layout that there is no record pertaining to approved layout plan/completion plan of Modern Cooperative Group Housing Society Limited available in the department, so as to ascertain the balance FAR availing for further construction by the society. Further, it is submitted that new tower with 18 dwelling units can be constructed only if balance ground coverage and FAR is available as against permissible ground coverage and permissible FAR prescribed for group housing in MPD-2021 under clause 4.4.3, B- Residential Plot – Group Housing mentioning as below:1. Maxi, Ground Coverage: 33.3% (in case addition of alteration of existing DUs for availing balance FAR ground coverage upto 40% may be allowed.2. Maximum FAR: 2003. Height: NR (Subject to clearance from AAI/Fire Department and other statutory bodies.4. Parking: 2.0 ECS/100 sqm built up area and 0.5 ECS/100 sqm for EWS/Service Personal Housing.?Since the Minutes of the General Body Meeting dated 24.02.2019 has taken a particular stand, we direct the Administrator to place on record, for our perusal, complete record with respect to the said meeting including E-mails and letters received by the Administrator in respect of said meeting.9. We have heard Mr. S.D. Singh, learned Advocate for the contempt petitioners, Ms. Kiran Bhardwaj, learned Advocate for alleged contemnors, Mr. Praveen Swarup, learned Advocate for the Municipal Corporation of Delhi and all other learned Advocates. Mr. S. D. Singh very fairly submitted that if the contempt petitioners were assured of possession of apartments, they would be having no objection to support the cause of the alleged contemnors in having a new building constructed by the society. Consequently, the voting pattern which effectively was 43 votes against the proposal and 39 votes in favour of the proposal would then drastically change and would be 29 votes against the proposal and 53 votes in favour of the proposal.10. Some of the salient features in the matter are:- 1. The alleged contemnors have violated the orders passed by this Court and despite having furnished appropriate undertakings, have failed to vacate and hand over possession. But there are certain equities in their favour; in that they were inducted as members not clandestinely but against the resultant vacancies after expulsion of certain members, that they had paid all the instalments in time, that on the basis of such instalments paid by the members including the alleged contemnors the construction was completed, and that they were put in possession of the apartments soon thereafter.2. It is only as a result of the expulsion orders of the contempt petitioners getting set aside that the alleged contemnors have to vacate their apartments and make way for the contempt petitioners.3. The society had raised amounts and was benefited from two sets of persons that is the alleged contemnors as well as the contempt petitioners and the fact of the matter is that the society is presently having funds to the tune of more than Rs.4 crores.11. Going by the reports made by the Architect a new building can be constructed with 18 apartments, which means that after satisfying the requirements of all the alleged contemnors there will still be some apartments left, from the sale of which money for construction can be garnered.Furthermore, according to the Architect, within the FAR available to it, the society can construct such new building. The Municipal Corporation of Delhi has also in principle agreed that if FAR is available, the authority would not have any objection to grant permission for construction of a new building.
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10. Some of the salient features in the matterThe alleged contemnors have violated the orders passed by this Court and despite having furnished appropriate undertakings, have failed to vacate and hand over possession. But there are certain equities in their favour; in that they were inducted as members not clandestinely but against the resultant vacancies after expulsion of certain members, that they had paid all the instalments in time, that on the basis of such instalments paid by the members including the alleged contemnors the construction was completed, and that they were put in possession of the apartments soon thereafter.2. It is only as a result of the expulsion orders of the contempt petitioners getting set aside that the alleged contemnors have to vacate their apartments and make way for the contempt petitioners.3. The society had raised amounts and was benefited from two sets of persons that is the alleged contemnors as well as the contempt petitioners and the fact of the matter is that the society is presently having funds to the tune of more than Rs.4 crores.Going by the reports made by the Architect a new building can be constructed with 18 apartments, which means that after satisfying the requirements of all the alleged contemnors there will still be some apartments left, from the sale of which money for construction can be garnered.Furthermore, according to the Architect, within the FAR available to it, the society can construct such new building. The Municipal Corporation of Delhi has also in principle agreed that if FAR is available, the authority would not have any objection to grant permission for construction of a new building.
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Mahasay Ganesh Prasad Ray & Another Vs. Narendra Nath Sen & Others | of reasoning in holding that they are not of such a nature and character as to compel the conclusion which the Subordinate Judge thought he was forced to come to. Exhibit 32 series as noticed by the High Court, consists of loose sheets of papers.They have not the probative force of a book of account regularly kept. Being old documents, naturally, the writer is not called and barring the fact that they were produced from the Receivers possession there is nothing to show their genuineness. Section 90, Evidence Act, does not help the appellants because this is not a case where the signature of a Particular person is in question or sought to be established.6. We do not propose to repeat the reasons given by the High Court to show why these documents are not of that. compelling nature as thought by the Subordinate Judge. They are all well summarized in the judgment of the High Court. In its judgment the High Court has also pointed out the circumstances under which these account sheets, contended to be of the year 1287, were produced and the way in which they came to be noticed in the Receivers possession. Bearing in mind these circumstances and the material fact that the important document is not convincingly proved to be of the year 1287 as the figure 8 appears to be torn, we are unable to consider this document as proved of the year 1287.7. The appellants relied on the account sheets of the year 1297 and the entries therein to support their case that these sheets contained entries of the birth of Indubala. From these sheets it was sought to be argued that they contain entries in respect of the birth of the only two daughters of Govind Ballab, namely Sabitri and Indubala, and therefore Binodini could not be his natural daughter. As pointed out by the High Court, however these account sheets of 1297 have the appearance of fresh ink and are unreliable. No argument could therefore be based on their genuineness.8. As regards the entries in the almanac, it is necessary only to point out, as has been done (by the High Court, that these are again loose sheets of papers with blanks left at different places. The writer is of course not available and therefore the weight which could be attached to documents which on the face of them are regularly kept cannot attach to these papers. The sheets and entries could be substituted or interpolated at different places, if one were so minded. Having regard to these defects therefore it is not possible to say that the entries have been made in the regular course of business and have the necessary probative value. In our opinion therefore the conclusion of the High Court is correct.9. Mr. Umrigar, following the argument of Mr. Chatterjee who argued the main points in the appeal, contended that there was a preliminary objection to the appeal being heard. He argued that after the Subordinate Judge passed the decree in favour of the appellants the respondents filed the appeal, without the necessary court-fees stamp. On the appellants objection the matter was discussed before the Registrar who held that ad valorem court-fee must be paid on the appeal. At that time the prayer in the memorandum of appeal was "The appeal be allowed and the plaintiffs suit be dismissed with costs throughout."10. Following this decision of the Registrar the present respondents prayed for amendment- of their" prayer by adding the following "except delivery of possession of schedules k, kha, ga, except lot No. 7 of the properties mentioned in the plaint." When this application came before the Court a Division Bench of the High Court Permitted the amendment at the appellants own risk. The matter then again came before the Registrar who while doubting the prudence of the respondents in making the amendment, held that as the memo stood the court-fee was properly paid on the footing that the decree under appeal was only a declaratory decree. When the present respondents appeal came for hearing before the High Court, the question of maintainability was argued as a preliminary objection and the High Court held that the objection was sound but allowed the present respondents (who were appellants there) to delete the amendment made by them and gave them time to pay the requisite court-fees.11. Mr. Umrigar argued that this order of the High Court was wrong, particularly. because it took away from the appellants their valuable right to plead the bar of limitation if this appeal was treated as filed on the day the requisite court-fees were paid in the High Court. In our opinion this argument has no substance. In the first place, the decree of the Subordinate Judge, as drafted, is only a declaratory decree and contains no order directing delivery of possession. It is true that in the judgment of the Subordinate Judge there are directions about delivery of possession but they do not appear to have been included in the decree as drawn up.12. Secondly, the power of the High Court to allow an amendment under S. 149, Civil procedure Code is clearly one under which the plea of the bar of limitation may be ignored. There are decisions at very- high authority taking that view. The contention therefore that by allowing the amendment the High Court took away the present appellants valuable right to plead the bar of limitation cannot be accepted. It was a matter of discretion for the High Court and the materials put before us indicate no reason to hold that the discretion was exercised so as to violate any recognised principles of law or that by granting leave to amend any gross injustice has been done. As pointed out by the High Court, the payment of court-fees is a matter primarily between the Government and the present respondents and that was the whole fight in respect of this contention. In our opinion therefore the preliminary objection fails. | 0[ds]6. We do not propose to repeat the reasons given by the High Court to show why these documents are not of that. compelling nature as thought by the Subordinate Judge. They are all well summarized in the judgment of the High Court. In its judgment the High Court has also pointed out the circumstances under which these account sheets, contended to be of the year 1287, were produced and the way in which they came to be noticed in the Receivers possession. Bearing in mind these circumstances and the material fact that the important document is not convincingly proved to be of the year 1287 as the figure 8 appears to be torn, we are unable to consider this document as proved of the year 1287.7. The appellants relied on the account sheets of the year 1297 and the entries therein to support their case that these sheets contained entries of the birth of Indubala. From these sheets it was sought to be argued that they contain entries in respect of the birth of the only two daughters of Govind Ballab, namely Sabitri and Indubala, and therefore Binodini could not be his natural daughter. As pointed out by the High Court, however these account sheets of 1297 have the appearance of fresh ink and are unreliable. No argument could therefore be based on their genuineness.8. As regards the entries in the almanac, it is necessary only to point out, as has been done (by the High Court, that these are again loose sheets of papers with blanks left at different places. The writer is of course not available and therefore the weight which could be attached to documents which on the face of them are regularly kept cannot attach to these papers. The sheets and entries could be substituted or interpolated at different places, if one were so minded. Having regard to these defects therefore it is not possible to say that the entries have been made in the regular course of business and have the necessary probative value. In our opinion therefore the conclusion of the High Court isour opinion this argument has no substance. In the first place, the decree of the Subordinate Judge, as drafted, is only a declaratory decree and contains no order directing delivery of possession. It is true that in the judgment of the Subordinate Judge there are directions about delivery of possession but they do not appear to have been included in the decree as drawn up.12. Secondly, the power of the High Court to allow an amendment under S. 149, Civil procedure Code is clearly one under which the plea of the bar of limitation may be ignored. There are decisions at veryhigh authority taking that view. The contention therefore that by allowing the amendment the High Court took away the present appellants valuable right to plead the bar of limitation cannot be accepted. It was a matter of discretion for the High Court and the materials put before us indicate no reason to hold that the discretion was exercised so as to violate any recognised principles of law or that by granting leave to amend any gross injustice has been done. As pointed out by the High Court, the payment ofis a matter primarily between the Government and the present respondents and that was the whole fight in respect of this contention. In our opinion therefore the preliminary objection fails. | 0 | 1,958 | 616 | ### Instruction:
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of reasoning in holding that they are not of such a nature and character as to compel the conclusion which the Subordinate Judge thought he was forced to come to. Exhibit 32 series as noticed by the High Court, consists of loose sheets of papers.They have not the probative force of a book of account regularly kept. Being old documents, naturally, the writer is not called and barring the fact that they were produced from the Receivers possession there is nothing to show their genuineness. Section 90, Evidence Act, does not help the appellants because this is not a case where the signature of a Particular person is in question or sought to be established.6. We do not propose to repeat the reasons given by the High Court to show why these documents are not of that. compelling nature as thought by the Subordinate Judge. They are all well summarized in the judgment of the High Court. In its judgment the High Court has also pointed out the circumstances under which these account sheets, contended to be of the year 1287, were produced and the way in which they came to be noticed in the Receivers possession. Bearing in mind these circumstances and the material fact that the important document is not convincingly proved to be of the year 1287 as the figure 8 appears to be torn, we are unable to consider this document as proved of the year 1287.7. The appellants relied on the account sheets of the year 1297 and the entries therein to support their case that these sheets contained entries of the birth of Indubala. From these sheets it was sought to be argued that they contain entries in respect of the birth of the only two daughters of Govind Ballab, namely Sabitri and Indubala, and therefore Binodini could not be his natural daughter. As pointed out by the High Court, however these account sheets of 1297 have the appearance of fresh ink and are unreliable. No argument could therefore be based on their genuineness.8. As regards the entries in the almanac, it is necessary only to point out, as has been done (by the High Court, that these are again loose sheets of papers with blanks left at different places. The writer is of course not available and therefore the weight which could be attached to documents which on the face of them are regularly kept cannot attach to these papers. The sheets and entries could be substituted or interpolated at different places, if one were so minded. Having regard to these defects therefore it is not possible to say that the entries have been made in the regular course of business and have the necessary probative value. In our opinion therefore the conclusion of the High Court is correct.9. Mr. Umrigar, following the argument of Mr. Chatterjee who argued the main points in the appeal, contended that there was a preliminary objection to the appeal being heard. He argued that after the Subordinate Judge passed the decree in favour of the appellants the respondents filed the appeal, without the necessary court-fees stamp. On the appellants objection the matter was discussed before the Registrar who held that ad valorem court-fee must be paid on the appeal. At that time the prayer in the memorandum of appeal was "The appeal be allowed and the plaintiffs suit be dismissed with costs throughout."10. Following this decision of the Registrar the present respondents prayed for amendment- of their" prayer by adding the following "except delivery of possession of schedules k, kha, ga, except lot No. 7 of the properties mentioned in the plaint." When this application came before the Court a Division Bench of the High Court Permitted the amendment at the appellants own risk. The matter then again came before the Registrar who while doubting the prudence of the respondents in making the amendment, held that as the memo stood the court-fee was properly paid on the footing that the decree under appeal was only a declaratory decree. When the present respondents appeal came for hearing before the High Court, the question of maintainability was argued as a preliminary objection and the High Court held that the objection was sound but allowed the present respondents (who were appellants there) to delete the amendment made by them and gave them time to pay the requisite court-fees.11. Mr. Umrigar argued that this order of the High Court was wrong, particularly. because it took away from the appellants their valuable right to plead the bar of limitation if this appeal was treated as filed on the day the requisite court-fees were paid in the High Court. In our opinion this argument has no substance. In the first place, the decree of the Subordinate Judge, as drafted, is only a declaratory decree and contains no order directing delivery of possession. It is true that in the judgment of the Subordinate Judge there are directions about delivery of possession but they do not appear to have been included in the decree as drawn up.12. Secondly, the power of the High Court to allow an amendment under S. 149, Civil procedure Code is clearly one under which the plea of the bar of limitation may be ignored. There are decisions at very- high authority taking that view. The contention therefore that by allowing the amendment the High Court took away the present appellants valuable right to plead the bar of limitation cannot be accepted. It was a matter of discretion for the High Court and the materials put before us indicate no reason to hold that the discretion was exercised so as to violate any recognised principles of law or that by granting leave to amend any gross injustice has been done. As pointed out by the High Court, the payment of court-fees is a matter primarily between the Government and the present respondents and that was the whole fight in respect of this contention. In our opinion therefore the preliminary objection fails.
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6. We do not propose to repeat the reasons given by the High Court to show why these documents are not of that. compelling nature as thought by the Subordinate Judge. They are all well summarized in the judgment of the High Court. In its judgment the High Court has also pointed out the circumstances under which these account sheets, contended to be of the year 1287, were produced and the way in which they came to be noticed in the Receivers possession. Bearing in mind these circumstances and the material fact that the important document is not convincingly proved to be of the year 1287 as the figure 8 appears to be torn, we are unable to consider this document as proved of the year 1287.7. The appellants relied on the account sheets of the year 1297 and the entries therein to support their case that these sheets contained entries of the birth of Indubala. From these sheets it was sought to be argued that they contain entries in respect of the birth of the only two daughters of Govind Ballab, namely Sabitri and Indubala, and therefore Binodini could not be his natural daughter. As pointed out by the High Court, however these account sheets of 1297 have the appearance of fresh ink and are unreliable. No argument could therefore be based on their genuineness.8. As regards the entries in the almanac, it is necessary only to point out, as has been done (by the High Court, that these are again loose sheets of papers with blanks left at different places. The writer is of course not available and therefore the weight which could be attached to documents which on the face of them are regularly kept cannot attach to these papers. The sheets and entries could be substituted or interpolated at different places, if one were so minded. Having regard to these defects therefore it is not possible to say that the entries have been made in the regular course of business and have the necessary probative value. In our opinion therefore the conclusion of the High Court isour opinion this argument has no substance. In the first place, the decree of the Subordinate Judge, as drafted, is only a declaratory decree and contains no order directing delivery of possession. It is true that in the judgment of the Subordinate Judge there are directions about delivery of possession but they do not appear to have been included in the decree as drawn up.12. Secondly, the power of the High Court to allow an amendment under S. 149, Civil procedure Code is clearly one under which the plea of the bar of limitation may be ignored. There are decisions at veryhigh authority taking that view. The contention therefore that by allowing the amendment the High Court took away the present appellants valuable right to plead the bar of limitation cannot be accepted. It was a matter of discretion for the High Court and the materials put before us indicate no reason to hold that the discretion was exercised so as to violate any recognised principles of law or that by granting leave to amend any gross injustice has been done. As pointed out by the High Court, the payment ofis a matter primarily between the Government and the present respondents and that was the whole fight in respect of this contention. In our opinion therefore the preliminary objection fails.
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New Prakash Transport Company Limited Vs. New Suwarna Transport Company Limited | the Archbishop of Canterbury reviewing the order of the Bishops refused to approve the clerk presented by the patron to a benefice. Acting under S.3 of the Benefices (Exercise of the Rights of Presentation) Measure, 1931, the Court repe1led the argument on behalf of the disappointed patron that as the decision involved a deprivation of property rights there was an obligation upon the Archbishop to act in a quasi judicial manner. Lord Greene, M.R., who delivered the judgment of the Court, observed that there was no "justification for regarding the matter when it comes before the Archbishop as in any sense, or by any remote analogy, a lis inter partes". Hence the Court on a true construction of S.3 of the Measure came to the conclusion that the, Archbishop was not required to arrive at his decision by conducting a quasi-judicial enquiry. This case, therefore, is an authority for the proposition that simply because property rights are involved, the authorities charged with the duty of deciding claims to such rights are not necessarily, apart from the provisions of the statute, required to function as quasi judicial tribunals.21. As already pointed out, the Appellate Authority had to function in a quasi judicial capacity in accordance with the rules made under the Motor Vehicles Act. That Act has made ample provisions for safeguarding the interests of rival claimants for permits. The provisions of the Act were examined in detail by a Bench of five Judges of this Court in the case of Veerappa Pillai v. Raman and Raman Ltd., l952 SCR 583: (AIR 1952 SC 192 ) (K). This Court examined elaborately the provisions of the Act vis-a-vis the authorities created by the Act to administer its provisions relating to the grant of stage carriage permits. It also examined how far the High Court exercising its special powers to issue writs under Art. 226 of the Constitution could interfere with the orders made by those authorities. In the course of its judgment this Court made the following observations at page 596, which are very relevant to the present purpose:"Thus we have before us a complete and precise scheme for regulating the issue of permits, providing what matters are to be taken into consideration as relevant, and prescribing appeals and revisions from subordinate bodies to higher authorities. The remedies for the redress of grievances or the correction of errors are found in the statute itself and it is to these remedies that resort must generally be had".22. Keeping in view the observation of this Court quoted above and the principles of natural justice discussed in the several authorities of the highest Courts in England, we have to see how far the provisions of the Motor Vehicles Act and the rules framed thereunder justify the criticism of the High Court that the Appellate Authority did not give full and effective opportunity to the first respondent to present his point of view before it.As already indicated, the statutory provisions do not contemplate that either the Regional Transport Authority or the Appellate Authority had to record evidence or to proceed as if they were functioning as a Court of low. They had to decide between a number of applicants as to which of them was suitable for the grant of the fresh permit applied for. They took into, consideration all the relevant matters and came to their decision which has not been attacked as partial or perverse. The only ground which survived before the Appellate Bench of the High Court was that the requirements of natural justice had not been satisfied. The only question that we have to determine is whether the Appellate Authority was justified in using the second report made by the police, though it had not been placed into the hands of the parties. That report did not directly contain any allegations against the first respondent. Hence there was nothing in that report which it, could be called upon to meet. The only effect of that report was that many of the objections raised against the suitability of the appellant had been withdrawn by the police on further consideration of their records. The police report is more for the information of the authorities concerned with the granting of permits than for the use of the several applicants for such permits. In our opinion, therefore, the fact that the Appellate Authority had read out the contents of the police report was enough compliance with the rules of natural justice. We have also pointed out that no grievance was made at the time the Appellate Authority was hearing the appeal by any of the parties, particularly by the first respondent, that the second report should not have been considered or that they wished to have a further opportunity of looking into that report and to controvert any matter contain therein. They did not move the Appellate Authority for the adjournment of the hearing in order to enable it to meet any of the statements made in that report. But the learned counsel for the respondent suggested that the requirements of natural justice could not be waived by any of the parties and that it was incumbent upon the Appellate Authority to observe the so-called rules of natural justice. In our opinion, there is no warrant for such a proposition. Even in a Court of law a party is not entitled to raise the question at the appellate stage that he should have been granted an adjournment which he did not pray for in the Court of first instance. Far less, such a claim can be entertained in an appeal from a tribunal which is not a Court of justice, but a statutory body functioning in a quasi judicial way.23. For the reasons aforesaid, in our opinion, the judgment under appeal is erroneous and must be set aside and we are further of the opinion that the judgment of the learned single Judge of that Court had taken the more correct view of the legal position. | 1[ds]At the outset we may observe that, in our opinion, there is no substance in the second ground sought to be resuscitated in this Court by the learned counsel on behalf of the respondent. Error apparent on the face of the record in the context of this case must mean an assumption of facts which are not borne out by the record. We are not concerned with other grounds which may in the context of each particular case support a contention of error apparent on the face of the record. In this case if there was any such error, it was with reference to the two police reports. As observed by the Appellate Bench of the High Court, though the language used by the Appellate Authority with regard to strict grammatical construction may refer to the first police report, it was difficult to hold that the matters referred to in the order challenged before the High Court were not contained in the subsequent report submitted by the police at the instance of the appellant. The judgement under appeal did not take the view that there was any such mistake apparent on the face of the record as was contended for on behalf of the first respondent. We have been referred to the orders of the Appellate Authority as read by the Appellate Bench of the High Court and, in our opinion, no such mistake has been shown to have vitiated the orders impugned before the Highwill thus be seen that though the substantive section creating the right of appeal does not in terms create any right in a respondent to be heard, the rules framed providing for the procedure before the Appellate Authority contemplate that sufficient notice shall be given to "any other person interested in the appeal" which expression must include persons other than the appellant who may be interested in being heard against the points raised in support of the appeal. Neither the sections nor the rules framed under the Act contemplate anything like recording oral or documentary evidence in the usual way as in courts of law. Besides the parties interested in the grant of stage carriage permits or those interested against it, the police authority of the locality, is also entitled to be heard both at the original stage and at the appellate stage.8. Thus the Motor Vehicles Act and the rules framed thereunder with particular reference to the Regional Transport Authority and the Appellate Authority, do not contemplate anything like a regular hearing in a court of justice. No elaborate procedure has been prescribed as to how the parties interested have to be heard in connection with the question, who is to be granted a stage carriageRegional Transport Authority is charged with the duty of granting or refusing a stage carriage permit, only to mention the matter with which we are immediately concerned. In that connection the statute requires that authority to have regard to the matters set forth in S. 47 of the Act, as already indicated. The police authority within whose local jurisdiction any part of the proposed route lies, has also been given the right to make representations. But the police report submitted to the Regional Transport Authority or to the Appellate Authority, if it requires the police authority to do so, is not intended to be anything more than an expression of opinion by an authority interested in the maintenance of law and order, with particular reference to the question as to whether any of the applicants for a permit had anything to its credit or discredit as supplier of transport facilities. Such a report is meant more for the use of the authority in making or refusing a grant than for the use of the several applicants or any one of them. In other words, it is in the nature of information supplied by the police in order to assist the authority in making up itsour opinion, the High Court has made a number of assumptions in making those observations which do not appear to be justified by the scheme of the legislation we are dealing with or by any a priori considerations of what has been characterised as "natural justice". The Tribunal in question was not administering justice as a court of law, though while deciding as between that rival claims of the applicants for a permit it had to deal with them in a fair and just manner.But a tribunal even acting "judicially" is not obliged to grant an adjournment suo motu without any application on behalf of any of the parties interested. We do not find that any of the parties made at that time any grievance about the procedure adopted by the Appellate Authority. But the question appears to have been raised for the first time before the High Court after the Appellate Tribunal had decided to grant the permit to thein our opinion, there was nothing in the rules requiring a copy of the police report to be furnished to any of the parties, nor was there any circumstance necessitating the adjournment of the hearing of the appeal, particularly when no request for such an adjournment had been made either by the first respondent or by any other party. At that time none of the parties appears to have made any grievance about the police report only being read out by the Chairman, or any request being made for an adjournment in order to adduce evidence pro and con. The rules framed under Chapter IV for "the conduct and hearing of the appeals that may be preferred under this chapter" (S. 68(2)(b)) do not contemplate any such facilities being granted to the parties, though it is open to the Appellate Authority to make any such "further enquiry, if any, as it may deemreport did not directly contain any allegations against the first respondent. Hence there was nothing in that report which it, could be called upon to meet. The only effect of that report was that many of the objections raised against the suitability of the appellant had been withdrawn by the police on further consideration of their records. The police report is more for the information of the authorities concerned with the granting of permits than for the use of the several applicants for such permits. In our opinion, therefore, the fact that the Appellate Authority had read out the contents of the police report was enough compliance with the rules of natural justice. We have also pointed out that no grievance was made at the time the Appellate Authority was hearing the appeal by any of the parties, particularly by the first respondent, that the second report should not have been considered or that they wished to have a further opportunity of looking into that report and to controvert any matter contain therein.For the reasons aforesaid, in our opinion, the judgment under appeal is erroneous and must be set aside and we are further of the opinion that the judgment of the learned single Judge of that Court had taken the more correct view of the legal position. | 1 | 8,330 | 1,267 | ### Instruction:
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the Archbishop of Canterbury reviewing the order of the Bishops refused to approve the clerk presented by the patron to a benefice. Acting under S.3 of the Benefices (Exercise of the Rights of Presentation) Measure, 1931, the Court repe1led the argument on behalf of the disappointed patron that as the decision involved a deprivation of property rights there was an obligation upon the Archbishop to act in a quasi judicial manner. Lord Greene, M.R., who delivered the judgment of the Court, observed that there was no "justification for regarding the matter when it comes before the Archbishop as in any sense, or by any remote analogy, a lis inter partes". Hence the Court on a true construction of S.3 of the Measure came to the conclusion that the, Archbishop was not required to arrive at his decision by conducting a quasi-judicial enquiry. This case, therefore, is an authority for the proposition that simply because property rights are involved, the authorities charged with the duty of deciding claims to such rights are not necessarily, apart from the provisions of the statute, required to function as quasi judicial tribunals.21. As already pointed out, the Appellate Authority had to function in a quasi judicial capacity in accordance with the rules made under the Motor Vehicles Act. That Act has made ample provisions for safeguarding the interests of rival claimants for permits. The provisions of the Act were examined in detail by a Bench of five Judges of this Court in the case of Veerappa Pillai v. Raman and Raman Ltd., l952 SCR 583: (AIR 1952 SC 192 ) (K). This Court examined elaborately the provisions of the Act vis-a-vis the authorities created by the Act to administer its provisions relating to the grant of stage carriage permits. It also examined how far the High Court exercising its special powers to issue writs under Art. 226 of the Constitution could interfere with the orders made by those authorities. In the course of its judgment this Court made the following observations at page 596, which are very relevant to the present purpose:"Thus we have before us a complete and precise scheme for regulating the issue of permits, providing what matters are to be taken into consideration as relevant, and prescribing appeals and revisions from subordinate bodies to higher authorities. The remedies for the redress of grievances or the correction of errors are found in the statute itself and it is to these remedies that resort must generally be had".22. Keeping in view the observation of this Court quoted above and the principles of natural justice discussed in the several authorities of the highest Courts in England, we have to see how far the provisions of the Motor Vehicles Act and the rules framed thereunder justify the criticism of the High Court that the Appellate Authority did not give full and effective opportunity to the first respondent to present his point of view before it.As already indicated, the statutory provisions do not contemplate that either the Regional Transport Authority or the Appellate Authority had to record evidence or to proceed as if they were functioning as a Court of low. They had to decide between a number of applicants as to which of them was suitable for the grant of the fresh permit applied for. They took into, consideration all the relevant matters and came to their decision which has not been attacked as partial or perverse. The only ground which survived before the Appellate Bench of the High Court was that the requirements of natural justice had not been satisfied. The only question that we have to determine is whether the Appellate Authority was justified in using the second report made by the police, though it had not been placed into the hands of the parties. That report did not directly contain any allegations against the first respondent. Hence there was nothing in that report which it, could be called upon to meet. The only effect of that report was that many of the objections raised against the suitability of the appellant had been withdrawn by the police on further consideration of their records. The police report is more for the information of the authorities concerned with the granting of permits than for the use of the several applicants for such permits. In our opinion, therefore, the fact that the Appellate Authority had read out the contents of the police report was enough compliance with the rules of natural justice. We have also pointed out that no grievance was made at the time the Appellate Authority was hearing the appeal by any of the parties, particularly by the first respondent, that the second report should not have been considered or that they wished to have a further opportunity of looking into that report and to controvert any matter contain therein. They did not move the Appellate Authority for the adjournment of the hearing in order to enable it to meet any of the statements made in that report. But the learned counsel for the respondent suggested that the requirements of natural justice could not be waived by any of the parties and that it was incumbent upon the Appellate Authority to observe the so-called rules of natural justice. In our opinion, there is no warrant for such a proposition. Even in a Court of law a party is not entitled to raise the question at the appellate stage that he should have been granted an adjournment which he did not pray for in the Court of first instance. Far less, such a claim can be entertained in an appeal from a tribunal which is not a Court of justice, but a statutory body functioning in a quasi judicial way.23. For the reasons aforesaid, in our opinion, the judgment under appeal is erroneous and must be set aside and we are further of the opinion that the judgment of the learned single Judge of that Court had taken the more correct view of the legal position.
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was any such mistake apparent on the face of the record as was contended for on behalf of the first respondent. We have been referred to the orders of the Appellate Authority as read by the Appellate Bench of the High Court and, in our opinion, no such mistake has been shown to have vitiated the orders impugned before the Highwill thus be seen that though the substantive section creating the right of appeal does not in terms create any right in a respondent to be heard, the rules framed providing for the procedure before the Appellate Authority contemplate that sufficient notice shall be given to "any other person interested in the appeal" which expression must include persons other than the appellant who may be interested in being heard against the points raised in support of the appeal. Neither the sections nor the rules framed under the Act contemplate anything like recording oral or documentary evidence in the usual way as in courts of law. Besides the parties interested in the grant of stage carriage permits or those interested against it, the police authority of the locality, is also entitled to be heard both at the original stage and at the appellate stage.8. Thus the Motor Vehicles Act and the rules framed thereunder with particular reference to the Regional Transport Authority and the Appellate Authority, do not contemplate anything like a regular hearing in a court of justice. No elaborate procedure has been prescribed as to how the parties interested have to be heard in connection with the question, who is to be granted a stage carriageRegional Transport Authority is charged with the duty of granting or refusing a stage carriage permit, only to mention the matter with which we are immediately concerned. In that connection the statute requires that authority to have regard to the matters set forth in S. 47 of the Act, as already indicated. The police authority within whose local jurisdiction any part of the proposed route lies, has also been given the right to make representations. But the police report submitted to the Regional Transport Authority or to the Appellate Authority, if it requires the police authority to do so, is not intended to be anything more than an expression of opinion by an authority interested in the maintenance of law and order, with particular reference to the question as to whether any of the applicants for a permit had anything to its credit or discredit as supplier of transport facilities. Such a report is meant more for the use of the authority in making or refusing a grant than for the use of the several applicants or any one of them. In other words, it is in the nature of information supplied by the police in order to assist the authority in making up itsour opinion, the High Court has made a number of assumptions in making those observations which do not appear to be justified by the scheme of the legislation we are dealing with or by any a priori considerations of what has been characterised as "natural justice". The Tribunal in question was not administering justice as a court of law, though while deciding as between that rival claims of the applicants for a permit it had to deal with them in a fair and just manner.But a tribunal even acting "judicially" is not obliged to grant an adjournment suo motu without any application on behalf of any of the parties interested. We do not find that any of the parties made at that time any grievance about the procedure adopted by the Appellate Authority. But the question appears to have been raised for the first time before the High Court after the Appellate Tribunal had decided to grant the permit to thein our opinion, there was nothing in the rules requiring a copy of the police report to be furnished to any of the parties, nor was there any circumstance necessitating the adjournment of the hearing of the appeal, particularly when no request for such an adjournment had been made either by the first respondent or by any other party. At that time none of the parties appears to have made any grievance about the police report only being read out by the Chairman, or any request being made for an adjournment in order to adduce evidence pro and con. The rules framed under Chapter IV for "the conduct and hearing of the appeals that may be preferred under this chapter" (S. 68(2)(b)) do not contemplate any such facilities being granted to the parties, though it is open to the Appellate Authority to make any such "further enquiry, if any, as it may deemreport did not directly contain any allegations against the first respondent. Hence there was nothing in that report which it, could be called upon to meet. The only effect of that report was that many of the objections raised against the suitability of the appellant had been withdrawn by the police on further consideration of their records. The police report is more for the information of the authorities concerned with the granting of permits than for the use of the several applicants for such permits. In our opinion, therefore, the fact that the Appellate Authority had read out the contents of the police report was enough compliance with the rules of natural justice. We have also pointed out that no grievance was made at the time the Appellate Authority was hearing the appeal by any of the parties, particularly by the first respondent, that the second report should not have been considered or that they wished to have a further opportunity of looking into that report and to controvert any matter contain therein.For the reasons aforesaid, in our opinion, the judgment under appeal is erroneous and must be set aside and we are further of the opinion that the judgment of the learned single Judge of that Court had taken the more correct view of the legal position.
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Smt. Shanti Devi Vs. Amal Kumar Banerjee | address and at his Sainthia address determining the tenancy with the expire of the month of April 1970. The defendant contested the plaintiffs claim on various grounds. The defendant pleaded, inter alia, that no notice under Section 106 of the Transfer of Property Act having been served upon him, the suit was not maintainable The High Court and the courts below have confined their attention to the question whether any valid quite notice had been served on the defendant without entering into the controversy whether such a notice was necessary or not. Both the learned Subordinate Judge as well as the learned District Judge upheld the plaintiffs claim that the lease had been validly determined by service of a quit notice and accordingly decreed his suit. The High Court however, reversed that decision of theirs holding that service of a notice under Section 106 of the Transfer of Property Act on the defendant had not been proved, and therefore, held that the plaintiff suit for ejectment was not maintainable. 3. There can be no doubt that the High Court and the courts below have without applying their mind as to the question whether Section 106 of the Transfer of Property Ct was applicable not, proceeded to deal with the question as to the validity of the notice, on the assumption that the lease was a lease from month to month. They have completely overlooked the fact that the lease was for a term of four years with a covenant for renewal for two terms of three each, i. e., lease for a definite duration of then years. The preamble of the lease deed recites that the lessor, in consideration of the rent reserved, and the conditions contained therein, demises unto the lessee the tenement of the cinema theatre known as Shanti House "for a term of four years", with option on the part of the lessee for renewal and subject to his paying a monthly rent of Rs. 400 as reserved. Clause (g) of the first part which deals with the lessees covenants, provides that the lessee shall at the expiration of the said term or at the expression of the renewed term, if any, peaceably and quietly deliver possession of the cinema theatre to the lessor. Clauses (u) and (vi) of lessors covenants, i. e., the second part of the deed lay down that the lessor in the first instance, at lessees request shall grant a fresh lease for a term of three years and on the expiry of such term, on a similar request, a further fresh lease for another term of three years. 4. The lease deed further provides by clause (6) of the third part, that in the event of the lessees failure to procure a license by April 30, 1956, the demise shall not take effect. The lease was duly effected by a registered instrument. It is not disputed that the defendant secured the licence on January 11, 1960. The period of the lease, therefore, commenced from that date. 5. The courts below have apparently been misled by the averment in paragraph 3 of the plaint that because the defendant could not fulfil the condition regarding obtaining of a licence, the grant made by the indenture of lease did not and could not take effect, as also that in paragraph 7 that the tenancy of lease was from month to month. The parties could not by their pleadings alter the intrinsic character of the lease or bring about a change of the rights and obligations flowing therefrom. The lease was a lease for a definite term and, therefore, expired by efflux of time by reason of Section 111 (a) of the Transfer of Property Act. That being so, the service of a notice under Section 106 of the Transfer Act was not necessary. 6. Undoubtedly, Section 111 (a) of the Transfer of Property Act, which deals with determination of a lease by efflux of time, has to read with Section 116 of the Act. But in the present case there is no allegation by the defendant that he was a tenant holding over within the meaning of Section 116 of the Act. Now, in order that a lease should be deemed to have been continued in favour of the defendant it was necessary to show that he remained in possession of the premises demised after the determination of the lease granted to him and the plaintiff had expressly or by necessary implication assented to his continued possession. There being no such plea of holding over, the matter falls to be governed by Section 111(a) of the Transfer of Property Act. If the period of lease had expired on January 10, 1970, the relationship of landlord and tenant ceased and the defendant became a trespasser. In the present case, the respondent who was the defendant, in Ground 6 of his memorandum of appeal before the High Court urged that the courts below should have held on the basis of the plaintiffs case read with the lease deed that the lease would expire on January 10, 1970. There was, therefore, no question of service of any notice under Section 106 of the Transfer of Property Act. 7. There is also no question of the defendant being a statutory tenant. It is no doubt true that the State Government of West Bengal by Level Self Government Department Notification dated August 10, 1972 constituted Sainthia to the a notified area, but that is of no legal consequence. There is a distinction between a municipality and a notified area. The provisions of the West Bengal Premises tenancy Act, 1956 extend to a municipality and are not applicable to a notified area upon determination of the contractual tenancy, the defendant therefore did not become a statutory tenant. The point was decided against the defendant by the court of first instance and was not pressed into service before the learned district Judge or the High Court. The matter must rest at that. | 1[ds]3. There can be no doubt that the High Court and the courts below have without applying their mind as to the question whether Section 106 of the Transfer of Property Ct was applicable not, proceeded to deal with the question as to the validity of the notice, on the assumption that the lease was a lease from month to month. They have completely overlooked the fact that the lease was for a term of four years with a covenant for renewal for two terms of three each, i. e., lease for a definite duration of then years. The preamble of the lease deed recites that the lessor, in consideration of the rent reserved, and the conditions contained therein, demises unto the lessee the tenement of the cinema theatre known as Shanti House "for a term of four years", with option on the part of the lessee for renewal and subject to his paying a monthly rent of Rs. 400 as reserved. Clause (g) of the first part which deals with the lessees covenants, provides that the lessee shall at the expiration of the said term or at the expression of the renewed term, if any, peaceably and quietly deliver possession of the cinema theatre to the lessor. Clauses (u) and (vi) of lessors covenants, i. e., the second part of the deed lay down that the lessor in the first instance, at lessees request shall grant a fresh lease for a term of three years and on the expiry of such term, on a similar request, a further fresh lease for another term of three years4. The lease deed further provides by clause (6) of the third part, that in the event of the lessees failure to procure a license by April 30, 1956, the demise shall not take effect. The lease was duly effected by a registered instrument. It is not disputed that the defendant secured the licence on January 11, 1960. The period of the lease, therefore, commenced from that date5. The courts below have apparently been misled by the averment in paragraph 3 of the plaint that because the defendant could not fulfil the condition regarding obtaining of a licence, the grant made by the indenture of lease did not and could not take effect, as also that in paragraph 7 that the tenancy of lease was from month to month. The parties could not by their pleadings alter the intrinsic character of the lease or bring about a change of the rights and obligations flowing therefrom. The lease was a lease for a definite term and, therefore, expired by efflux of time by reason of Section 111 (a) of the Transfer of Property Act. That being so, the service of a notice under Section 106 of the Transfer Act was not necessary6. Undoubtedly, Section 111 (a) of the Transfer of Property Act, which deals with determination of a lease by efflux of time, has to read with Section 116 of the Act. But in the present case there is no allegation by the defendant that he was a tenant holding over within the meaning of Section 116 of the Act. Now, in order that a lease should be deemed to have been continued in favour of the defendant it was necessary to show that he remained in possession of the premises demised after the determination of the lease granted to him and the plaintiff had expressly or by necessary implication assented to his continued possession. There being no such plea of holding over, the matter falls to be governed by Section 111(a) of the Transfer of Property Act. If the period of lease had expired on January 10, 1970, the relationship of landlord and tenant ceased and the defendant became a trespasser. In the present case, the respondent who was the defendant, in Ground 6 of his memorandum of appeal before the High Court urged that the courts below should have held on the basis of the plaintiffs case read with the lease deed that the lease would expire on January 10, 1970. There was, therefore, no question of service of any notice under Section 106 of the Transfer of Property Act7. There is also no question of the defendant being a statutory tenant. It is no doubt true that the State Government of West Bengal by Level Self Government Department Notification dated August 10, 1972 constituted Sainthia to the a notified area, but that is of no legal consequence. There is a distinction between a municipality and a notified area. The provisions of the West Bengal Premises tenancy Act, 1956 extend to a municipality and are not applicable to a notified area upon determination of the contractual tenancy, the defendant therefore did not become a statutory tenant. The point was decided against the defendant by the court of first instance and was not pressed into service before the learned district Judge or the High Court. The matter must rest at that. | 1 | 1,316 | 919 | ### Instruction:
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address and at his Sainthia address determining the tenancy with the expire of the month of April 1970. The defendant contested the plaintiffs claim on various grounds. The defendant pleaded, inter alia, that no notice under Section 106 of the Transfer of Property Act having been served upon him, the suit was not maintainable The High Court and the courts below have confined their attention to the question whether any valid quite notice had been served on the defendant without entering into the controversy whether such a notice was necessary or not. Both the learned Subordinate Judge as well as the learned District Judge upheld the plaintiffs claim that the lease had been validly determined by service of a quit notice and accordingly decreed his suit. The High Court however, reversed that decision of theirs holding that service of a notice under Section 106 of the Transfer of Property Act on the defendant had not been proved, and therefore, held that the plaintiff suit for ejectment was not maintainable. 3. There can be no doubt that the High Court and the courts below have without applying their mind as to the question whether Section 106 of the Transfer of Property Ct was applicable not, proceeded to deal with the question as to the validity of the notice, on the assumption that the lease was a lease from month to month. They have completely overlooked the fact that the lease was for a term of four years with a covenant for renewal for two terms of three each, i. e., lease for a definite duration of then years. The preamble of the lease deed recites that the lessor, in consideration of the rent reserved, and the conditions contained therein, demises unto the lessee the tenement of the cinema theatre known as Shanti House "for a term of four years", with option on the part of the lessee for renewal and subject to his paying a monthly rent of Rs. 400 as reserved. Clause (g) of the first part which deals with the lessees covenants, provides that the lessee shall at the expiration of the said term or at the expression of the renewed term, if any, peaceably and quietly deliver possession of the cinema theatre to the lessor. Clauses (u) and (vi) of lessors covenants, i. e., the second part of the deed lay down that the lessor in the first instance, at lessees request shall grant a fresh lease for a term of three years and on the expiry of such term, on a similar request, a further fresh lease for another term of three years. 4. The lease deed further provides by clause (6) of the third part, that in the event of the lessees failure to procure a license by April 30, 1956, the demise shall not take effect. The lease was duly effected by a registered instrument. It is not disputed that the defendant secured the licence on January 11, 1960. The period of the lease, therefore, commenced from that date. 5. The courts below have apparently been misled by the averment in paragraph 3 of the plaint that because the defendant could not fulfil the condition regarding obtaining of a licence, the grant made by the indenture of lease did not and could not take effect, as also that in paragraph 7 that the tenancy of lease was from month to month. The parties could not by their pleadings alter the intrinsic character of the lease or bring about a change of the rights and obligations flowing therefrom. The lease was a lease for a definite term and, therefore, expired by efflux of time by reason of Section 111 (a) of the Transfer of Property Act. That being so, the service of a notice under Section 106 of the Transfer Act was not necessary. 6. Undoubtedly, Section 111 (a) of the Transfer of Property Act, which deals with determination of a lease by efflux of time, has to read with Section 116 of the Act. But in the present case there is no allegation by the defendant that he was a tenant holding over within the meaning of Section 116 of the Act. Now, in order that a lease should be deemed to have been continued in favour of the defendant it was necessary to show that he remained in possession of the premises demised after the determination of the lease granted to him and the plaintiff had expressly or by necessary implication assented to his continued possession. There being no such plea of holding over, the matter falls to be governed by Section 111(a) of the Transfer of Property Act. If the period of lease had expired on January 10, 1970, the relationship of landlord and tenant ceased and the defendant became a trespasser. In the present case, the respondent who was the defendant, in Ground 6 of his memorandum of appeal before the High Court urged that the courts below should have held on the basis of the plaintiffs case read with the lease deed that the lease would expire on January 10, 1970. There was, therefore, no question of service of any notice under Section 106 of the Transfer of Property Act. 7. There is also no question of the defendant being a statutory tenant. It is no doubt true that the State Government of West Bengal by Level Self Government Department Notification dated August 10, 1972 constituted Sainthia to the a notified area, but that is of no legal consequence. There is a distinction between a municipality and a notified area. The provisions of the West Bengal Premises tenancy Act, 1956 extend to a municipality and are not applicable to a notified area upon determination of the contractual tenancy, the defendant therefore did not become a statutory tenant. The point was decided against the defendant by the court of first instance and was not pressed into service before the learned district Judge or the High Court. The matter must rest at that.
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3. There can be no doubt that the High Court and the courts below have without applying their mind as to the question whether Section 106 of the Transfer of Property Ct was applicable not, proceeded to deal with the question as to the validity of the notice, on the assumption that the lease was a lease from month to month. They have completely overlooked the fact that the lease was for a term of four years with a covenant for renewal for two terms of three each, i. e., lease for a definite duration of then years. The preamble of the lease deed recites that the lessor, in consideration of the rent reserved, and the conditions contained therein, demises unto the lessee the tenement of the cinema theatre known as Shanti House "for a term of four years", with option on the part of the lessee for renewal and subject to his paying a monthly rent of Rs. 400 as reserved. Clause (g) of the first part which deals with the lessees covenants, provides that the lessee shall at the expiration of the said term or at the expression of the renewed term, if any, peaceably and quietly deliver possession of the cinema theatre to the lessor. Clauses (u) and (vi) of lessors covenants, i. e., the second part of the deed lay down that the lessor in the first instance, at lessees request shall grant a fresh lease for a term of three years and on the expiry of such term, on a similar request, a further fresh lease for another term of three years4. The lease deed further provides by clause (6) of the third part, that in the event of the lessees failure to procure a license by April 30, 1956, the demise shall not take effect. The lease was duly effected by a registered instrument. It is not disputed that the defendant secured the licence on January 11, 1960. The period of the lease, therefore, commenced from that date5. The courts below have apparently been misled by the averment in paragraph 3 of the plaint that because the defendant could not fulfil the condition regarding obtaining of a licence, the grant made by the indenture of lease did not and could not take effect, as also that in paragraph 7 that the tenancy of lease was from month to month. The parties could not by their pleadings alter the intrinsic character of the lease or bring about a change of the rights and obligations flowing therefrom. The lease was a lease for a definite term and, therefore, expired by efflux of time by reason of Section 111 (a) of the Transfer of Property Act. That being so, the service of a notice under Section 106 of the Transfer Act was not necessary6. Undoubtedly, Section 111 (a) of the Transfer of Property Act, which deals with determination of a lease by efflux of time, has to read with Section 116 of the Act. But in the present case there is no allegation by the defendant that he was a tenant holding over within the meaning of Section 116 of the Act. Now, in order that a lease should be deemed to have been continued in favour of the defendant it was necessary to show that he remained in possession of the premises demised after the determination of the lease granted to him and the plaintiff had expressly or by necessary implication assented to his continued possession. There being no such plea of holding over, the matter falls to be governed by Section 111(a) of the Transfer of Property Act. If the period of lease had expired on January 10, 1970, the relationship of landlord and tenant ceased and the defendant became a trespasser. In the present case, the respondent who was the defendant, in Ground 6 of his memorandum of appeal before the High Court urged that the courts below should have held on the basis of the plaintiffs case read with the lease deed that the lease would expire on January 10, 1970. There was, therefore, no question of service of any notice under Section 106 of the Transfer of Property Act7. There is also no question of the defendant being a statutory tenant. It is no doubt true that the State Government of West Bengal by Level Self Government Department Notification dated August 10, 1972 constituted Sainthia to the a notified area, but that is of no legal consequence. There is a distinction between a municipality and a notified area. The provisions of the West Bengal Premises tenancy Act, 1956 extend to a municipality and are not applicable to a notified area upon determination of the contractual tenancy, the defendant therefore did not become a statutory tenant. The point was decided against the defendant by the court of first instance and was not pressed into service before the learned district Judge or the High Court. The matter must rest at that.
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Manish Maheshwari Vs. Asstt.Commnr.Of Income Tax | been searched or whose documents and other assets had been requisitioned under Section 132A of the Act. 13. A taxing statute, as is well-known, must be construed strictly. In Sneh Enterprises v. Commissioner of Customs, New Delhi [(2006) 7 SCC 714] , it was held: "While dealing with a taxing provision, the principle of Strict Interpretation should be applied. The Court shall not interpret the statutory provision in such a manner which would create an additional fiscal burden on a person. It would never be done by invoking the provisions of another Act, which are not attracted. It is also trite that while two interpretations are possible, the Court ordinarily would interpret the provisions in favour of a tax-payer and against the Revenue." 14. Yet again in J. Srinivasa Rao v. Govt. of A.P. & Another [2006 (13) SCALE 27 ], it was held: "In a case of doubt or dispute, it is well-settled, construction has to be made in favour of the taxpayer and against the Revenue." 15. In M/s. Ispat Industries Ltd. v. Commissioner of Customs, Mumbai [JT 2006 (12) SC 379 : 2006 (9) SCALE 652 ], this Court opined: "In our opinion if there are two possible interpretations of a rule, one which subserves the object of a provision in the parent statute and the other which does not, we have to adopt the former, because adopting the latter will make the rule ultra vires the Act." 16. Law in this regard is clear and explicit. The only question which arises for our consideration is as to whether the notice dated 06.02.1996 satisfies the requirements of Section 158BD of the Act. The said notice does not record any satisfaction on the part of the Assessing Officer. Documents and other assets recovered during search had not been handed over to the Assessing Officer having jurisdiction in the matter.17. No proceeding under Section 158BC had been initiated. There is, thus, a patent non-application of mind. A prescribed form had been utilized. Even the status of the assessee had not been specified. It had only been mentioned that the search was conducted in the month of November 1995. No other information had been furnished. The provisions contained in Chapter XIVB are drastic in nature. It has draconian consequences. Such a proceeding can be initiated, it would bear repetition to state, only if a raid is conducted. When the provisions are attracted, legal presumptions are raised against the assessee. The burden shifts on the assessee. Audited accounts for a period of ten years may have to be reopened. 18. A large number of decisions of various High Courts have been cited at the bar. We would, at the outset, refer to a decision of the Gujarat High Court in Khandubhai Vasanji Desai and Others v. Deputy Commissioner of Income-Tax and Another [(1999) 236 ITR 73]. Therein, it was clearly held: "This provision indicates that where the Assessing Officer who is seized of the matter and has jurisdiction over the person other than the person with respect to whom search was made under s. 132 or whose books of account or other documents or any assets were requisitioned under s. 132A, he shall proceed against such other person as per the provisions of Chapter XIV-B which would mean that on such satisfaction being reached that any undisclosed income belongs to such other person, he must proceed to serve a notice to such other person as per the provisions of s. 158BC of the Act. If the Assessing Officer who is seized of the matter against the raided person reaches such satisfaction that any undisclosed income belongs to such other person over whom he has no jurisdiction, then, in that event, he has to transmit the material to the Assessing Officer having jurisdiction over such other person and in such cases the Assessing Officer who has jurisdiction will proceed against such other person by issuing the requisite notice contemplated by S.158BC of the Act." 19. Similar view has been taken by the Gujarat High Court in Rushil Industries Ltd. v. Harsh Prakash [(2001) 251 ITR 608], Priya Blue Industries P. Ltd. v. Joint Commissioner of Income-Tax [(2001) 251 ITR 615], Premjibhai and Sons v. Joint Commissioner of Income-Tax [(2001) 251 ITR 625], and by Kerala High Court in Commissioner of Income-Tax v. Deep Arts [(2005) 274 ITR 571], Commissioner of Income-Tax v. Don Bosco Card Centre [(2006) 205 CTR 500] and by Madhya Pradesh High Court in Commissioner of Income-Tax v. Smt. Maya Chotrani [(2007) 288 ITR 175] . 20. We may, however, notice that Mr. A.K. Chitale, relied upon a decision of the Delhi High Court in Commissioner of Income Tax v. Pushpa Rani [(2005) 193 CIR (Del) 256] wherein a Division Bench of the said Court held: "The Tribunal on the material placed before it, arrived at a conclusion that there were no search warrants in the name of the assessees and hence it accepted the contention of the learned counsel that the proceedings initiated under s. 158BC in the cases of the assesses were ab initio void and without jurisdiction. The learned counsel for the Department was unable to furnish any clarification and stated before the Tribunal that the facts stated by the assesses regarding non-issuance of the search warrant in the case of the two ladies were correct. It is in view of this that the Tribunal has held that unless a search warrant is issued, the Assessing Officer cannot invoke the provisions of s. 158BC for initiation of block assessment proceedings under Chapter XIV-B. However, so far as the bank locker is concerned, it is submitted that the officer was armed with the search warrant and, therefore, whatever the property was found, namely, jewellery, money and bonds, etc., the assesses ought to have assessed and the Tribunal ought not to have interfered with the order made by the CIT (A)." 21. We are of the opinion that the said decision has no application in the instant case. | 1[ds]12. The conditions precedent for invoking the provisions of Section 158BD, thus, are required to be satisfied before the provisions of the said chapter are applied in relation to any person other than the person whose premises had been searched or whose documents and other assets had been requisitioned under Section 132A of the Act.Law in this regard is clear and explicit. The only question which arises for our consideration is as to whether the notice dated 06.02.1996 satisfies the requirements of Section 158BD of the Act. The said notice does not record any satisfaction on the part of the Assessing Officer. Documents and other assets recovered during search had not been handed over to the Assessing Officer having jurisdiction in the matter.17. No proceeding under Section 158BC had been initiated. There is, thus, a patentof mind. A prescribed form had been utilized. Even the status of the assessee had not been specified. It had only been mentioned that the search was conducted in the month of November 1995. No other information had been furnished. The provisions contained in Chapter XIVB are drastic in nature. It has draconian consequences. Such a proceeding can be initiated, it would bear repetition to state, only if a raid is conducted. When the provisions are attracted, legal presumptions are raised against the assessee. The burden shifts on the assessee. Audited accounts for a period of ten years may have to be reopened. | 1 | 3,534 | 266 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
been searched or whose documents and other assets had been requisitioned under Section 132A of the Act. 13. A taxing statute, as is well-known, must be construed strictly. In Sneh Enterprises v. Commissioner of Customs, New Delhi [(2006) 7 SCC 714] , it was held: "While dealing with a taxing provision, the principle of Strict Interpretation should be applied. The Court shall not interpret the statutory provision in such a manner which would create an additional fiscal burden on a person. It would never be done by invoking the provisions of another Act, which are not attracted. It is also trite that while two interpretations are possible, the Court ordinarily would interpret the provisions in favour of a tax-payer and against the Revenue." 14. Yet again in J. Srinivasa Rao v. Govt. of A.P. & Another [2006 (13) SCALE 27 ], it was held: "In a case of doubt or dispute, it is well-settled, construction has to be made in favour of the taxpayer and against the Revenue." 15. In M/s. Ispat Industries Ltd. v. Commissioner of Customs, Mumbai [JT 2006 (12) SC 379 : 2006 (9) SCALE 652 ], this Court opined: "In our opinion if there are two possible interpretations of a rule, one which subserves the object of a provision in the parent statute and the other which does not, we have to adopt the former, because adopting the latter will make the rule ultra vires the Act." 16. Law in this regard is clear and explicit. The only question which arises for our consideration is as to whether the notice dated 06.02.1996 satisfies the requirements of Section 158BD of the Act. The said notice does not record any satisfaction on the part of the Assessing Officer. Documents and other assets recovered during search had not been handed over to the Assessing Officer having jurisdiction in the matter.17. No proceeding under Section 158BC had been initiated. There is, thus, a patent non-application of mind. A prescribed form had been utilized. Even the status of the assessee had not been specified. It had only been mentioned that the search was conducted in the month of November 1995. No other information had been furnished. The provisions contained in Chapter XIVB are drastic in nature. It has draconian consequences. Such a proceeding can be initiated, it would bear repetition to state, only if a raid is conducted. When the provisions are attracted, legal presumptions are raised against the assessee. The burden shifts on the assessee. Audited accounts for a period of ten years may have to be reopened. 18. A large number of decisions of various High Courts have been cited at the bar. We would, at the outset, refer to a decision of the Gujarat High Court in Khandubhai Vasanji Desai and Others v. Deputy Commissioner of Income-Tax and Another [(1999) 236 ITR 73]. Therein, it was clearly held: "This provision indicates that where the Assessing Officer who is seized of the matter and has jurisdiction over the person other than the person with respect to whom search was made under s. 132 or whose books of account or other documents or any assets were requisitioned under s. 132A, he shall proceed against such other person as per the provisions of Chapter XIV-B which would mean that on such satisfaction being reached that any undisclosed income belongs to such other person, he must proceed to serve a notice to such other person as per the provisions of s. 158BC of the Act. If the Assessing Officer who is seized of the matter against the raided person reaches such satisfaction that any undisclosed income belongs to such other person over whom he has no jurisdiction, then, in that event, he has to transmit the material to the Assessing Officer having jurisdiction over such other person and in such cases the Assessing Officer who has jurisdiction will proceed against such other person by issuing the requisite notice contemplated by S.158BC of the Act." 19. Similar view has been taken by the Gujarat High Court in Rushil Industries Ltd. v. Harsh Prakash [(2001) 251 ITR 608], Priya Blue Industries P. Ltd. v. Joint Commissioner of Income-Tax [(2001) 251 ITR 615], Premjibhai and Sons v. Joint Commissioner of Income-Tax [(2001) 251 ITR 625], and by Kerala High Court in Commissioner of Income-Tax v. Deep Arts [(2005) 274 ITR 571], Commissioner of Income-Tax v. Don Bosco Card Centre [(2006) 205 CTR 500] and by Madhya Pradesh High Court in Commissioner of Income-Tax v. Smt. Maya Chotrani [(2007) 288 ITR 175] . 20. We may, however, notice that Mr. A.K. Chitale, relied upon a decision of the Delhi High Court in Commissioner of Income Tax v. Pushpa Rani [(2005) 193 CIR (Del) 256] wherein a Division Bench of the said Court held: "The Tribunal on the material placed before it, arrived at a conclusion that there were no search warrants in the name of the assessees and hence it accepted the contention of the learned counsel that the proceedings initiated under s. 158BC in the cases of the assesses were ab initio void and without jurisdiction. The learned counsel for the Department was unable to furnish any clarification and stated before the Tribunal that the facts stated by the assesses regarding non-issuance of the search warrant in the case of the two ladies were correct. It is in view of this that the Tribunal has held that unless a search warrant is issued, the Assessing Officer cannot invoke the provisions of s. 158BC for initiation of block assessment proceedings under Chapter XIV-B. However, so far as the bank locker is concerned, it is submitted that the officer was armed with the search warrant and, therefore, whatever the property was found, namely, jewellery, money and bonds, etc., the assesses ought to have assessed and the Tribunal ought not to have interfered with the order made by the CIT (A)." 21. We are of the opinion that the said decision has no application in the instant case.
### Response:
1
### Explanation:
12. The conditions precedent for invoking the provisions of Section 158BD, thus, are required to be satisfied before the provisions of the said chapter are applied in relation to any person other than the person whose premises had been searched or whose documents and other assets had been requisitioned under Section 132A of the Act.Law in this regard is clear and explicit. The only question which arises for our consideration is as to whether the notice dated 06.02.1996 satisfies the requirements of Section 158BD of the Act. The said notice does not record any satisfaction on the part of the Assessing Officer. Documents and other assets recovered during search had not been handed over to the Assessing Officer having jurisdiction in the matter.17. No proceeding under Section 158BC had been initiated. There is, thus, a patentof mind. A prescribed form had been utilized. Even the status of the assessee had not been specified. It had only been mentioned that the search was conducted in the month of November 1995. No other information had been furnished. The provisions contained in Chapter XIVB are drastic in nature. It has draconian consequences. Such a proceeding can be initiated, it would bear repetition to state, only if a raid is conducted. When the provisions are attracted, legal presumptions are raised against the assessee. The burden shifts on the assessee. Audited accounts for a period of ten years may have to be reopened.
|
KIRAN PRAKASH KULKARNI Vs. THE ENFORCEMENT DIRECTORATE & ANR | 1. A First Information Report was registered against the petitioner for offences under Sections 409, 420, 477A and 120B read with 34 IPC on 15.12.2015. Thereafter, Enforcement Case Information Report (ECIR) under the Prevention of Money Laundering Act, 2002 (‘PMLA Act?) was registered against the petitioner on 12.1.2016 in which the charge sheet was filed on 16.4.2016. The petitioner was granted bail in the predicate offences on 10.5.2016 after being in jail for a period of five months. The petitioner was arrested again on 18.6.2018 for the offences under the PMLA Act. The application for bail filed by the petitioner was rejected by the High Court on 22.12.2018.2. On a careful scrutiny of the judgment of the High Court, we find that the law laid down by this Court on the constitutional validity of Section 45(1) of the PMLA Act in ?Nikesh Tarachand Shah versus Union of India? reported in 2018 (11) SCC 1 , has not been taken into account. After a detailed discussion on the facts, the High Court opined that prima facie case was made out against the petitioner and, so, he was not entitled for bail.3. We have considered the material available on record and the submissions made by Mr. Fali S. Nariman, learned senior counsel appearing on behalf of the petitioner and the learned Additional Solicitor General appearing for the respondents. The petitioner was in jail for five months in the predicate offences. A charge sheet has been filed in the case registered under the PMLA Act, though, the learned Additional Solicitor General says that further investigation is in progress. | 1[ds]2. On a careful scrutiny of the judgment of the High Court, we find that the law laid down by this Court on the constitutional validity of Section 45(1) of the PMLA Act in ?Nikesh Tarachand Shah versus Union of India? reported in 2018 (11) SCC 1 , has not been taken into account. After a detailed discussion on the facts, the High Court opined that prima facie case was made out against the petitioner and, so, he was not entitled for bail3. We have considered the material available on record and the submissions made by Mr. Fali S. Nariman, learned senior counsel appearing on behalf of the petitioner and the learned Additional Solicitor General appearing for the respondents. The petitioner was in jail for five months in the predicate offences. A charge sheet has been filed in the case registered under the PMLA Act, though, the learned Additional Solicitor General says that further investigation is in progress. | 1 | 300 | 182 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
1. A First Information Report was registered against the petitioner for offences under Sections 409, 420, 477A and 120B read with 34 IPC on 15.12.2015. Thereafter, Enforcement Case Information Report (ECIR) under the Prevention of Money Laundering Act, 2002 (‘PMLA Act?) was registered against the petitioner on 12.1.2016 in which the charge sheet was filed on 16.4.2016. The petitioner was granted bail in the predicate offences on 10.5.2016 after being in jail for a period of five months. The petitioner was arrested again on 18.6.2018 for the offences under the PMLA Act. The application for bail filed by the petitioner was rejected by the High Court on 22.12.2018.2. On a careful scrutiny of the judgment of the High Court, we find that the law laid down by this Court on the constitutional validity of Section 45(1) of the PMLA Act in ?Nikesh Tarachand Shah versus Union of India? reported in 2018 (11) SCC 1 , has not been taken into account. After a detailed discussion on the facts, the High Court opined that prima facie case was made out against the petitioner and, so, he was not entitled for bail.3. We have considered the material available on record and the submissions made by Mr. Fali S. Nariman, learned senior counsel appearing on behalf of the petitioner and the learned Additional Solicitor General appearing for the respondents. The petitioner was in jail for five months in the predicate offences. A charge sheet has been filed in the case registered under the PMLA Act, though, the learned Additional Solicitor General says that further investigation is in progress.
### Response:
1
### Explanation:
2. On a careful scrutiny of the judgment of the High Court, we find that the law laid down by this Court on the constitutional validity of Section 45(1) of the PMLA Act in ?Nikesh Tarachand Shah versus Union of India? reported in 2018 (11) SCC 1 , has not been taken into account. After a detailed discussion on the facts, the High Court opined that prima facie case was made out against the petitioner and, so, he was not entitled for bail3. We have considered the material available on record and the submissions made by Mr. Fali S. Nariman, learned senior counsel appearing on behalf of the petitioner and the learned Additional Solicitor General appearing for the respondents. The petitioner was in jail for five months in the predicate offences. A charge sheet has been filed in the case registered under the PMLA Act, though, the learned Additional Solicitor General says that further investigation is in progress.
|
All Escorts Employees Union Vs. The State of Haryana and Ors | In view of the aforesaid, it is not necessary to deal with the issue raised in these appeals as the issue does not survive. Civil Appeal Nos. 12843-12844 of 2017 Page 20 of 23 (arising out of SLP (C) Nos. 27020-27021 of 2015) Thus, leaving the question of law open, these appeals are dismissed.4. From the reading of para 24 extracted above, it can be discerned that this Court took the view that since the workers of Yamaha had formed their own separate Trade Union which is also duly registered with the Registrar, Trade Union and stands recognised by the management of Yamaha, the very purpose of amending Clause 4 stands defeated. It is further mentioned that, in any case, Clause 4 was amended in the year 2007 and since that amendment has been approved by the Registrar, Trade Union, the issue of amendment in Clause 4, as carried out in June, 2001, becomes a non-issue and, therefore, it is not necessary to deal with the issue.5. In these applications filed by the Appellant, it is submitted that the observation in para 24 to the effect that amendment to Clause 4 carried out in the year 2007 has been approved by the Registrar, Trade Union is factually incorrect. It is stated that the Additional Registrar, Trade Union, Haryana in his counter affidavit has mentioned that the order dated October 21, 2015 was passed whereby the amendment approved vide letter dated November 24, 2007 was withdrawn/cancelled by invoking Clause 4 of the General Clauses Act, 1897. Therefore, amendment to Clause 4 carried out in the year 2007 also does not exist. On that basis, the prayer made in the applications is that findings given in paragraphs 24 and 25 of the judgment dated September 14, 2017 be recalled and the issue that arises for consideration should be decided on merits.6. Insofar as factual error that has occurred in the judgment dated September 14, 2017 as pointed out in these applications is concerned, the Appellant/applicant is correct in its submission. Though amendment to Clause 4 of the Constitution of the Appellant in November, 2007 was initially approved by the Registrar, however, the said approval was withdrawn by the Registrar vide order dated October 21, 2015. It was stated in the counter affidavit filed by the Additional Registrar that initially the amendment was approved inadvertently, which had occasioned because of the concealment of the material facts about the rejection of the earlier application by the Registrar. However, after this fact came to the notice of the Registrar, the amendment was withdrawn vide order dated October 21, 2015 after following due procedure.7. After hearing counsel for the parties, we are of the opinion that notwithstanding the aforesaid factual error, the end result remains unaltered. In case, the amendment to Clause 4 which was initially approved by the Registrar, but later on withdrawn, vide order dated October 21, 2015, this decision of the Registrar would furnish a fresh cause of action to the Appellant. It has not come on record whether this order was challenged at all or not.8. Be that as it may, main reason in our judgment dated September 14, 2017 to dismiss the appeals was that the workers of Yamaha have formed their own separate Union which is duly registered and also recognised by the management of Yamaha. Therefore, the very purpose of amending Clause 4 stands frustrated.9. In this behalf, it would be pertinent to mention that All India Yamaha Motor Employees Sabha has filed intervention application. In this application, it is, inter alia, stated that intervenor Trade Union is formed for the exclusive benefit for the workmen of Faridabad Plant of Yamaha. It is further stated that all the workers of the said Faridabad Plant are the members of the intervenor Union and they are not being represented by the Appellant-Union. These workers have elected the office-bearers of the intervenor Union and it is this Union which is now representing 100% workers working in the said Union and is negotiating with the employers. Insofar as Appellant-Union is concerned, this Union represents the workers of Escorts Group of Companies. As per Section 6 of the Trade Unions Act, 1926 (hereinafter referred to as the Act), it is necessary for the Trade Union to provide for the matters enumerated in the said Section. Clause (e) thereof deals with admission of ordinary members and provide as under:(e) the admission of ordinary members who shall be persons actually engaged or employed in an industry with which the Trade Union is connected, and also the admission of the number of honorary or temporary members as office-bearers required Under Section 22 to form the executive of the Trade Union;10. As per this clause, ordinary members should be those who are actually engaged or employed in an industry in which the Trade Union is connected. It is also significant to note that a Union in a particular establishment should have representative character. For this reason, Section 9A of the Act, which was inserted by Act 31 of 2001 w.e.f. January 9, 2002 mandates that a registered Trade Union of workmen shall at all times continue to have not less than ten per cent or one hundred of the workmen, whichever is less, subject to a minimum of seven, engaged or employed in an establishment or industry with which it is connected, as its members. Section 22 of the Act contains another stipulation, namely, not less than one-half of the total number of the office-bearers of every registered Trade Union in an unrecognised sector shall be persons actually engaged or employed in an industry with which the Trade Union is connected. Section 22 in the aforesaid form came to be substituted by Act 31 of 2001 w.e.f. January 9, 2002. Once we find that all the workmen of Yamaha are members of the intervenor Union, obviously the Appellant-Union is not in a position to comply with the provisions of Section 9A read with Section 22 of the Act. | 0[ds]6. Insofar as factual error that has occurred in the judgment dated September 14, 2017 as pointed out in these applications is concerned, the Appellant/applicant is correct in its submission. Though amendment to Clause 4 of the Constitution of the Appellant in November, 2007 was initially approved by the Registrar, however, the said approval was withdrawn by the Registrar vide order dated October 21, 2015. It was stated in the counter affidavit filed by the Additional Registrar that initially the amendment was approved inadvertently, which had occasioned because of the concealment of the material facts about the rejection of the earlier application by the Registrar. However, after this fact came to the notice of the Registrar, the amendment was withdrawn vide order dated October 21, 2015 after following due procedure7. After hearing counsel for the parties, we are of the opinion that notwithstanding the aforesaid factual error, the end result remains unaltered. In case, the amendment to Clause 4 which was initially approved by the Registrar, but later on withdrawn, vide order dated October 21, 2015, this decision of the Registrar would furnish a fresh cause of action to the Appellant. It has not come on record whether this order was challenged at all or not8. Be that as it may, main reason in our judgment dated September 14, 2017 to dismiss the appeals was that the workers of Yamaha have formed their own separate Union which is duly registered and also recognised by the management of Yamaha. Therefore, the very purpose of amending Clause 4 stands frustrated10. As per this clause, ordinary members should be those who are actually engaged or employed in an industry in which the Trade Union is connected. It is also significant to note that a Union in a particular establishment should have representative character. For this reason, Section 9A of the Act, which was inserted by Act 31 of 2001 w.e.f. January 9, 2002 mandates that a registered Trade Union of workmen shall at all times continue to have not less than ten per cent or one hundred of the workmen, whichever is less, subject to a minimum of seven, engaged or employed in an establishment or industry with which it is connected, as its members. Section 22 of the Act contains another stipulation, namely, not less than one-half of the total number of the office-bearers of every registered Trade Union in an unrecognised sector shall be persons actually engaged or employed in an industry with which the Trade Union is connected. Section 22 in the aforesaid form came to be substituted by Act 31 of 2001 w.e.f. January 9, 2002. Once we find that all the workmen of Yamaha are members of the intervenor Union, obviously the Appellant-Union is not in a position to comply with the provisions of Section 9A read with Section 22 of the Act. | 0 | 1,662 | 529 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
In view of the aforesaid, it is not necessary to deal with the issue raised in these appeals as the issue does not survive. Civil Appeal Nos. 12843-12844 of 2017 Page 20 of 23 (arising out of SLP (C) Nos. 27020-27021 of 2015) Thus, leaving the question of law open, these appeals are dismissed.4. From the reading of para 24 extracted above, it can be discerned that this Court took the view that since the workers of Yamaha had formed their own separate Trade Union which is also duly registered with the Registrar, Trade Union and stands recognised by the management of Yamaha, the very purpose of amending Clause 4 stands defeated. It is further mentioned that, in any case, Clause 4 was amended in the year 2007 and since that amendment has been approved by the Registrar, Trade Union, the issue of amendment in Clause 4, as carried out in June, 2001, becomes a non-issue and, therefore, it is not necessary to deal with the issue.5. In these applications filed by the Appellant, it is submitted that the observation in para 24 to the effect that amendment to Clause 4 carried out in the year 2007 has been approved by the Registrar, Trade Union is factually incorrect. It is stated that the Additional Registrar, Trade Union, Haryana in his counter affidavit has mentioned that the order dated October 21, 2015 was passed whereby the amendment approved vide letter dated November 24, 2007 was withdrawn/cancelled by invoking Clause 4 of the General Clauses Act, 1897. Therefore, amendment to Clause 4 carried out in the year 2007 also does not exist. On that basis, the prayer made in the applications is that findings given in paragraphs 24 and 25 of the judgment dated September 14, 2017 be recalled and the issue that arises for consideration should be decided on merits.6. Insofar as factual error that has occurred in the judgment dated September 14, 2017 as pointed out in these applications is concerned, the Appellant/applicant is correct in its submission. Though amendment to Clause 4 of the Constitution of the Appellant in November, 2007 was initially approved by the Registrar, however, the said approval was withdrawn by the Registrar vide order dated October 21, 2015. It was stated in the counter affidavit filed by the Additional Registrar that initially the amendment was approved inadvertently, which had occasioned because of the concealment of the material facts about the rejection of the earlier application by the Registrar. However, after this fact came to the notice of the Registrar, the amendment was withdrawn vide order dated October 21, 2015 after following due procedure.7. After hearing counsel for the parties, we are of the opinion that notwithstanding the aforesaid factual error, the end result remains unaltered. In case, the amendment to Clause 4 which was initially approved by the Registrar, but later on withdrawn, vide order dated October 21, 2015, this decision of the Registrar would furnish a fresh cause of action to the Appellant. It has not come on record whether this order was challenged at all or not.8. Be that as it may, main reason in our judgment dated September 14, 2017 to dismiss the appeals was that the workers of Yamaha have formed their own separate Union which is duly registered and also recognised by the management of Yamaha. Therefore, the very purpose of amending Clause 4 stands frustrated.9. In this behalf, it would be pertinent to mention that All India Yamaha Motor Employees Sabha has filed intervention application. In this application, it is, inter alia, stated that intervenor Trade Union is formed for the exclusive benefit for the workmen of Faridabad Plant of Yamaha. It is further stated that all the workers of the said Faridabad Plant are the members of the intervenor Union and they are not being represented by the Appellant-Union. These workers have elected the office-bearers of the intervenor Union and it is this Union which is now representing 100% workers working in the said Union and is negotiating with the employers. Insofar as Appellant-Union is concerned, this Union represents the workers of Escorts Group of Companies. As per Section 6 of the Trade Unions Act, 1926 (hereinafter referred to as the Act), it is necessary for the Trade Union to provide for the matters enumerated in the said Section. Clause (e) thereof deals with admission of ordinary members and provide as under:(e) the admission of ordinary members who shall be persons actually engaged or employed in an industry with which the Trade Union is connected, and also the admission of the number of honorary or temporary members as office-bearers required Under Section 22 to form the executive of the Trade Union;10. As per this clause, ordinary members should be those who are actually engaged or employed in an industry in which the Trade Union is connected. It is also significant to note that a Union in a particular establishment should have representative character. For this reason, Section 9A of the Act, which was inserted by Act 31 of 2001 w.e.f. January 9, 2002 mandates that a registered Trade Union of workmen shall at all times continue to have not less than ten per cent or one hundred of the workmen, whichever is less, subject to a minimum of seven, engaged or employed in an establishment or industry with which it is connected, as its members. Section 22 of the Act contains another stipulation, namely, not less than one-half of the total number of the office-bearers of every registered Trade Union in an unrecognised sector shall be persons actually engaged or employed in an industry with which the Trade Union is connected. Section 22 in the aforesaid form came to be substituted by Act 31 of 2001 w.e.f. January 9, 2002. Once we find that all the workmen of Yamaha are members of the intervenor Union, obviously the Appellant-Union is not in a position to comply with the provisions of Section 9A read with Section 22 of the Act.
### Response:
0
### Explanation:
6. Insofar as factual error that has occurred in the judgment dated September 14, 2017 as pointed out in these applications is concerned, the Appellant/applicant is correct in its submission. Though amendment to Clause 4 of the Constitution of the Appellant in November, 2007 was initially approved by the Registrar, however, the said approval was withdrawn by the Registrar vide order dated October 21, 2015. It was stated in the counter affidavit filed by the Additional Registrar that initially the amendment was approved inadvertently, which had occasioned because of the concealment of the material facts about the rejection of the earlier application by the Registrar. However, after this fact came to the notice of the Registrar, the amendment was withdrawn vide order dated October 21, 2015 after following due procedure7. After hearing counsel for the parties, we are of the opinion that notwithstanding the aforesaid factual error, the end result remains unaltered. In case, the amendment to Clause 4 which was initially approved by the Registrar, but later on withdrawn, vide order dated October 21, 2015, this decision of the Registrar would furnish a fresh cause of action to the Appellant. It has not come on record whether this order was challenged at all or not8. Be that as it may, main reason in our judgment dated September 14, 2017 to dismiss the appeals was that the workers of Yamaha have formed their own separate Union which is duly registered and also recognised by the management of Yamaha. Therefore, the very purpose of amending Clause 4 stands frustrated10. As per this clause, ordinary members should be those who are actually engaged or employed in an industry in which the Trade Union is connected. It is also significant to note that a Union in a particular establishment should have representative character. For this reason, Section 9A of the Act, which was inserted by Act 31 of 2001 w.e.f. January 9, 2002 mandates that a registered Trade Union of workmen shall at all times continue to have not less than ten per cent or one hundred of the workmen, whichever is less, subject to a minimum of seven, engaged or employed in an establishment or industry with which it is connected, as its members. Section 22 of the Act contains another stipulation, namely, not less than one-half of the total number of the office-bearers of every registered Trade Union in an unrecognised sector shall be persons actually engaged or employed in an industry with which the Trade Union is connected. Section 22 in the aforesaid form came to be substituted by Act 31 of 2001 w.e.f. January 9, 2002. Once we find that all the workmen of Yamaha are members of the intervenor Union, obviously the Appellant-Union is not in a position to comply with the provisions of Section 9A read with Section 22 of the Act.
|
Ongc Ltd Vs. M/S. Modern Construction And Co | where the plaintiff brings his suit in the right court, but is nevertheless prevented from getting a trial on merits because of subsequent developments on which a court may loose jurisdiction because of the amendment of the plaint or an amendment in law or in a case where the defect may be analogous to the defect of jurisdiction. 13. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order VII Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the same. 14. There can also be no quarrel with the settled legal proposition that the Executing Court cannot go behind the decree. Thus, in absence of any challenge to the decree, no objection can be raised in execution. (Vide: Bhawarlal Bhandari v. Universal Heavy Mechanical Lifting Enterprises AIR 1999 SC 246 ; Dhurandhar Prasad Singh v. Jai Prakash University & Ors., AIR 2001 SC 2552 ; Rajasthan Financial Corpn. v. Man Industrial Corpn. Ltd., AIR 2003 SC 4273 ; Balvant N. Viswamitra & Ors. v. Yadav Sadashiv Mule (Dead) Thru. Lrs. & Ors., AIR 2004 SC 4377 ; and Kanwar Singh Saini v. High Court of Delhi, (2012) 4 SCC 307 ). 15. In the instant case, a copy of the decree has not been filed by either of the parties. The judgment and order dated 21.9.2006 shows that the plaints were received and registered on 24.3.1986. The respondent cannot be permitted to take advantage of a mistake made by the court and raise a technical objection to defeat the cause of substantial justice. The legal maxim, Actus Curiae Neminem Gravabit i.e. an act of Court shall prejudice no man, comes into play. (See: Jayalakshmi Coelho v. Oswald Joseph Coelho, AIR 2001 SC 1084 ; and Bhagwati Developers Private Ltd. v. Peerless General Finance Investment Company Ltd. & Ors., AIR 2013 SC 1690 ). 16. This Court in Bhartiya Seva Samaj Trust Tr. Pres. & Anr. v. Yogeshbhai Ambalal Patel & Anr., AIR 2012 SC 3285 , while dealing with the issue held: 21. A person alleging his own infamy cannot be heard at any forum, what to talk of a Writ Court, as explained by the legal maxim allegans suam turpitudinem non est audiendus. If a party has committed a wrong, he cannot be permitted to take the benefit of his own wrong…. This concept is also explained by the legal maxims Commodum ex injuria sua non habere debet; and nullus commodum capere potest de injuria sua propria. 17. Thus, the respondent cannot take the benefit of its own mistake. Respondent instituted the suit in Civil Court at Mehsana which admittedly had no jurisdiction to entertain the suit. In spite of the fact that the civil suit stood decreed, the High Court directed the court at Mehsana to return the plaint in view of the provisions of Order VII Rule 10 CPC. Thus, the respondent presented the plaint before the Civil Court at Surat on 3.2.1999. 18. The judgment and decree dated 21.9.2006 clearly provided for future interest at the rate of 12 per cent per annum from the date of filing of the suit till the realisation of the amount. The Executing Court vide judgment and decree dated 28.9.2007 rejected the claim of the respondent observing that the respondent had wrongly filed suit at Mehsana and the said court had no jurisdiction, and the wrong doer cannot get benefit of its own wrong i.e. the benefit of interest on the amount from the date of filing the suit in Mehsana court. The Appellate Court in its order dated 12.3.2010 reiterated a similar view rejecting the appeal of the respondent observing that a public undertaking cannot be penalised for the mistake committed by the plaintiff by choosing a wrong forum. Before the High Court when the matter was taken up on 14.9.2010, a similar view had been reiterated that the respondent cannot be allowed to take advantage of the words from the date of the suit, and conveniently overlook its own wrong of initially filing the suit in 1986 in the court at Mehsana. Though the court did not have jurisdiction, the plaintiff/respondent is now claiming interest for the period from 1986 to 1999 i.e. for 13 years by taking advantage of its own wrong and for that purpose, the plaintiff/respondent is trying to misconstrue the words mentioned by the learned trial court in the operative portion of the judgment dated 21.9.2006, viz., from the date of filing of the suit. However, while passing the impugned order, the High Court has used the language that the case stood transferred from the Mehsana court to the court at Surat and, therefore, interest has to be paid from the date of initiation of the suit at Mehsana i.e. from 1986 and in view thereof, allowed the claim. 19. We are of the considered view that once the plaint was presented before the Civil Court at Surat, it was a fresh suit and cannot be considered to be continuation of the suit instituted at Mehsana. The plaintiff/respondent cannot be permitted to take advantage of its own mistake instituting the suit before a wrong court. The judgment and order impugned cannot be sustained in the eyes of law. 20. | 1[ds]Section 14 of the Limitation Act provides protection against the bar of limitation to a person bonafidely presenting his case on merit but fails as the court lacks inherent jurisdiction to try the suit. The protection also applies where the plaintiff brings his suit in the right court, but is nevertheless prevented from getting a trial on merits because of subsequent developments on which a court may loose jurisdiction because of the amendment of the plaint or an amendment in law or in a case where the defect may be analogous to the defect of jurisdiction13. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order VII Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the sameIn the instant case, a copy of the decree has not been filed by either of the parties. The judgment and order dated 21.9.2006 shows that the plaints were received and registered on 24.3.1986. The respondent cannot be permitted to take advantage of a mistake made by the court and raise a technical objection to defeat the cause of substantial justice. The legal maxim, Actus Curiae Neminem Gravabit i.e. an act of Court shall prejudice no man, comes into playWe are of the considered view that once the plaint was presented before the Civil Court at Surat, it was a fresh suit and cannot be considered to be continuation of the suit instituted at Mehsana. The plaintiff/respondent cannot be permitted to take advantage of its own mistake instituting the suit before a wrong court. The judgment and order impugned cannot be sustained in the eyes of law | 1 | 3,215 | 429 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
where the plaintiff brings his suit in the right court, but is nevertheless prevented from getting a trial on merits because of subsequent developments on which a court may loose jurisdiction because of the amendment of the plaint or an amendment in law or in a case where the defect may be analogous to the defect of jurisdiction. 13. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order VII Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the same. 14. There can also be no quarrel with the settled legal proposition that the Executing Court cannot go behind the decree. Thus, in absence of any challenge to the decree, no objection can be raised in execution. (Vide: Bhawarlal Bhandari v. Universal Heavy Mechanical Lifting Enterprises AIR 1999 SC 246 ; Dhurandhar Prasad Singh v. Jai Prakash University & Ors., AIR 2001 SC 2552 ; Rajasthan Financial Corpn. v. Man Industrial Corpn. Ltd., AIR 2003 SC 4273 ; Balvant N. Viswamitra & Ors. v. Yadav Sadashiv Mule (Dead) Thru. Lrs. & Ors., AIR 2004 SC 4377 ; and Kanwar Singh Saini v. High Court of Delhi, (2012) 4 SCC 307 ). 15. In the instant case, a copy of the decree has not been filed by either of the parties. The judgment and order dated 21.9.2006 shows that the plaints were received and registered on 24.3.1986. The respondent cannot be permitted to take advantage of a mistake made by the court and raise a technical objection to defeat the cause of substantial justice. The legal maxim, Actus Curiae Neminem Gravabit i.e. an act of Court shall prejudice no man, comes into play. (See: Jayalakshmi Coelho v. Oswald Joseph Coelho, AIR 2001 SC 1084 ; and Bhagwati Developers Private Ltd. v. Peerless General Finance Investment Company Ltd. & Ors., AIR 2013 SC 1690 ). 16. This Court in Bhartiya Seva Samaj Trust Tr. Pres. & Anr. v. Yogeshbhai Ambalal Patel & Anr., AIR 2012 SC 3285 , while dealing with the issue held: 21. A person alleging his own infamy cannot be heard at any forum, what to talk of a Writ Court, as explained by the legal maxim allegans suam turpitudinem non est audiendus. If a party has committed a wrong, he cannot be permitted to take the benefit of his own wrong…. This concept is also explained by the legal maxims Commodum ex injuria sua non habere debet; and nullus commodum capere potest de injuria sua propria. 17. Thus, the respondent cannot take the benefit of its own mistake. Respondent instituted the suit in Civil Court at Mehsana which admittedly had no jurisdiction to entertain the suit. In spite of the fact that the civil suit stood decreed, the High Court directed the court at Mehsana to return the plaint in view of the provisions of Order VII Rule 10 CPC. Thus, the respondent presented the plaint before the Civil Court at Surat on 3.2.1999. 18. The judgment and decree dated 21.9.2006 clearly provided for future interest at the rate of 12 per cent per annum from the date of filing of the suit till the realisation of the amount. The Executing Court vide judgment and decree dated 28.9.2007 rejected the claim of the respondent observing that the respondent had wrongly filed suit at Mehsana and the said court had no jurisdiction, and the wrong doer cannot get benefit of its own wrong i.e. the benefit of interest on the amount from the date of filing the suit in Mehsana court. The Appellate Court in its order dated 12.3.2010 reiterated a similar view rejecting the appeal of the respondent observing that a public undertaking cannot be penalised for the mistake committed by the plaintiff by choosing a wrong forum. Before the High Court when the matter was taken up on 14.9.2010, a similar view had been reiterated that the respondent cannot be allowed to take advantage of the words from the date of the suit, and conveniently overlook its own wrong of initially filing the suit in 1986 in the court at Mehsana. Though the court did not have jurisdiction, the plaintiff/respondent is now claiming interest for the period from 1986 to 1999 i.e. for 13 years by taking advantage of its own wrong and for that purpose, the plaintiff/respondent is trying to misconstrue the words mentioned by the learned trial court in the operative portion of the judgment dated 21.9.2006, viz., from the date of filing of the suit. However, while passing the impugned order, the High Court has used the language that the case stood transferred from the Mehsana court to the court at Surat and, therefore, interest has to be paid from the date of initiation of the suit at Mehsana i.e. from 1986 and in view thereof, allowed the claim. 19. We are of the considered view that once the plaint was presented before the Civil Court at Surat, it was a fresh suit and cannot be considered to be continuation of the suit instituted at Mehsana. The plaintiff/respondent cannot be permitted to take advantage of its own mistake instituting the suit before a wrong court. The judgment and order impugned cannot be sustained in the eyes of law. 20.
### Response:
1
### Explanation:
Section 14 of the Limitation Act provides protection against the bar of limitation to a person bonafidely presenting his case on merit but fails as the court lacks inherent jurisdiction to try the suit. The protection also applies where the plaintiff brings his suit in the right court, but is nevertheless prevented from getting a trial on merits because of subsequent developments on which a court may loose jurisdiction because of the amendment of the plaint or an amendment in law or in a case where the defect may be analogous to the defect of jurisdiction13. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order VII Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the sameIn the instant case, a copy of the decree has not been filed by either of the parties. The judgment and order dated 21.9.2006 shows that the plaints were received and registered on 24.3.1986. The respondent cannot be permitted to take advantage of a mistake made by the court and raise a technical objection to defeat the cause of substantial justice. The legal maxim, Actus Curiae Neminem Gravabit i.e. an act of Court shall prejudice no man, comes into playWe are of the considered view that once the plaint was presented before the Civil Court at Surat, it was a fresh suit and cannot be considered to be continuation of the suit instituted at Mehsana. The plaintiff/respondent cannot be permitted to take advantage of its own mistake instituting the suit before a wrong court. The judgment and order impugned cannot be sustained in the eyes of law
|
P.J. Gupta & Company Vs. K. Venkatesan Merchant & Others | referred to as the amending Act) which omits clause (iii) from Section 30 of the Act, the appellant was protected from eviction. He relied strongly on Section 3 of the Amending Act which reads as follows:"3. Certain pending proceedings to abate. Every proceeding in respect of any non-residential building or part thereof pending before any Court or other authority or officer on the date of the publication of this Act in the Fort St. George Gazette and instituted on the ground that such building or part was exempt from the provisions of the principal Act by virtue of clause (iii) of Section 30 of the principal Act shall abate in so far as the proceeding relates to such building or part. All rights and privileges which may have accrued before such date to any landlord in respect of any non residential building or part thereof by virtue of clause (iii) of Section 30 of the principal Act shall cease and determine and shall not be enforceable:Provided that nothing contained in this section shall be deemed to invalidate any suit or proceeding in which the decree or order passed has been executed or satisfied in full before the date mentioned in this section"6. The effect of Section 30 of the Act containing clause (iii) which was omitted by the Amending Act may be set out in the language of Section 30 itself:"30.Nothing contained in this Act, shall apply to:-(i) xxx xxx(ii) xxx xxx(iii)Any non-residential building, the rental value of which on the date of the commencement of this Act as entered in the property tax assessment book of the Municipal Council. District Board Panchayat or Panchayat Union Council or the Corporation of Madras as the case may be, exceeds four hundred rupees per mensem".7. The obvious result of S. 30 (iii) of the Act, as it stood before the amendment was that if the rental value of a non-residential building as entered in the property tax book of the Municipality exceeded Rs. 400/- per mensem a description which applies to the premises under consideration before us, the landlord would have no right to proceed against the tenant for eviction under Section 10(2) (ii) (a) of the Act. Section 3 of the Amending Act on the face of it, applies to two kinds of cases. Its heading is misleading in so far as it suggests that it is meant to apply only to one of these two kinds. It applies: firstly to cases in which a proceeding has been instituted "on the ground" that a non-residential building "was exempt from the provisions of the principal Act" by "virtue of clause (iii) of Section 30 of the principal Act" and is pending and secondly to cases where " rights and privileges which may have accrued before such date to any landlord in respect of non-residential building by virtue of clause (iii) of Section 30 of the principal Act"exist. In the kind of case falling in the first category the amendment says that the pending proceedings shall abate.As regards the second kind of case the amendment says that "the rights and privileges of the landlord shall cease and determine and shall not be enforceable"8. On admitted facts the proceedings under Section 10 (2) (ii) (a) of the proceedings under Section 10(2) (ii) (a) of the Act now before us could not fall under the 1st category of cases contemplated by Section 3. And we have been unable to see how any "rights or privileges of the landlord" in respect of any non-residential building which could have conceivably accrued or existed "by virtue of clause (iii) of Section 30 of the principal Act", are involved here Whatever rights the landlord respondent had acquired, were due to the omission of clause (iii) from Section 30 of the Act by the amending Act of 1964 only. Prior to the amendment, the effect of Section 30, clause (iii) of the Act was that the landlord had no right to proceed under Section 10(2) (ii) (a) of the Act. The effect of the amendment is that the landlord acquires a new right by the removal of this disability. Section 3 of the Amending Act could not possibly be so interpreted as to defeat the object of Section 2 which clearly amplifies the previously limited remedy by removing a restriction upon its use. Hence we fail to see how any argument built around Section 3 of the Amending Act could help the appellant at all. Apparently this is the reason why on such argument was advanced anywhere earlier. It is not necessary for the purposes of the case before us to speculate about the types of cases which may actually fall within the two wings of the obviously unartistically drafted Section 3 of the Amending Act. It is enough for us to conclude as we are bound to on the language of the provision that the case before us falls outside it.9. Learned counsel for the respondent has, quite correctly, contended that the right itself was created by the amendment of 1964 so far as the landlord respondent is concerned. Before that the special remedy provided by the Act was denied to him because of the nature of the premises let and its monthly rent. Its benefit was extended to him in 1964 so that after the amendment he could use the procedure contained in Section 10 of the Act. The amendment received the assent of the President on 5-6-1964 and was published in the State Gazette on 10-6-1964. The proceeding under Section 10 (2) (ii) (a) of the Act was commenced in December 1964. We find no force whatsoever in the appeal before us. The parties agree that the appellants will get six months from today to vacate the premises. Subject to the undertaking by the appellants will get six months from today to vacate the premises. Subject to the undertaking by the appellants and respondent landlord to give effect to this agreement this appeal is dismissed with costs.10. | 0[ds]8. On admitted facts the proceedings under Section 10 (2) (ii) (a) of the proceedings under Section 10(2) (ii) (a) of the Act now before us could not fall under the 1st category of cases contemplated by Section 3. And we have been unable to see how any "rights or privileges of the landlord" in respect of any non-residential building which could have conceivably accrued or existed "by virtue of clause (iii) of Section 30 of the principal Act", are involved here Whatever rights the landlord respondent had acquired, were due to the omission of clause (iii) from Section 30 of the Act by the amending Act of 1964 only. Prior to the amendment, the effect of Section 30, clause (iii) of the Act was that the landlord had no right to proceed under Section 10(2) (ii) (a) of the Act. The effect of the amendment is that the landlord acquires a new right by the removal of this disability. Section 3 of the Amending Act could not possibly be so interpreted as to defeat the object of Section 2 which clearly amplifies the previously limited remedy by removing a restriction upon its use. Hence we fail to see how any argument built around Section 3 of the Amending Act could help the appellant at all. Apparently this is the reason why on such argument was advanced anywhere earlier. It is not necessary for the purposes of the case before us to speculate about the types of cases which may actually fall within the two wings of the obviously unartistically drafted Section 3 of the Amending Act. It is enough for us to conclude as we are bound to on the language of the provision that the case before us falls outside it.9. Learned counsel for the respondent has, quite correctly, contended that the right itself was created by the amendment of 1964 so far as the landlord respondent is concerned. Before that the special remedy provided by the Act was denied to him because of the nature of the premises let and its monthly rent. Its benefit was extended to him in 1964 so that after the amendment he could use the procedure contained in Section 10 of the Act. The amendment received the assent of the President on 5-6-1964 and was published in the State Gazette on 10-6-1964. The proceeding under Section 10 (2) (ii) (a) of the Act was commenced in December 1964. We find no force whatsoever in the appeal before us. The parties agree that the appellants will get six months from today to vacate the premises. Subject to the undertaking by the appellants will get six months from today to vacate the premises. Subject to the undertaking by the appellants and respondent landlord to give effect to this agreement this appeal is dismissed with costs.It is clear from the majority view of this Court in M/s. Raval and Co. v. K.G. Ramachandran, AIR 1974 SC 818 at p. 823 dismissing an appeal from a judgment of the Full Bench of Madras High Court reported in AIR 1967 Mad 57 (FB) that the Act "has a a scheme of its own and it is intended to provide a complete code in respect of both contractual tenancies as well as what are popularly called statutory tenancies". In mother words the special procedure provided by the Act displaces the requirements of the procedure for eviction under the Transfer of Property Act and by an ordinary civil suit. Therefore we need not concern ourselves with the provisions of Transfer of Property Act. We need only determine here whether the landlord respondent satisfied the conditions of Section 10(2) (ii) (a) of the Act set out above. The High had held that ahad undoubtedly taken place in 1957. The Simall Cause Court had considered this fact to be immaterial on the ground that the provisions of the Act did not apply to a case such as the one before us which was in its opinion governed by the provisions of the Transfer of Property Act only. We think that the provisions of the Act must necessarily apply to all tenancies. A tenancy is essentially based on and governed by an agreement or contract even when a statute intervenes to limit the area within which an agreement or contract operates or subjects contractual rights to statutory rights and obligations. In the case before us thewas certainly subsequent to 1945 so that on the plain language of the provision theof 1957 would be covered by section 10 (2) (ii)(a) of the Act.The obvious result of S. 30 (iii) of the Act, as it stood before the amendment was that if the rental value of abuilding as entered in the property tax book of the Municipality exceeded Rs. 400/per mensem a description which applies to the premises under consideration before us, the landlord would have no right to proceed against the tenant for eviction under Section 10(2) (ii) (a) of the Act. Section 3 of the Amending Act on the face of it, applies to two kinds of cases. Its heading is misleading in so far as it suggests that it is meant to apply only to one of these two kinds. It applies: firstly to cases in which a proceeding has been instituted "on the ground" that abuilding "was exempt from the provisions of the principal Act" by "virtue of clause (iii) of Section 30 of the principal Act" and is pending and secondly to cases where " rights and privileges which may have accrued before such date to any landlord in respect ofbuilding by virtue of clause (iii) of Section 30 of the principal Act"exist. In the kind of case falling in the first category the amendment says that the pending proceedings shall abate.As regards the second kind of case the amendment says that "the rights and privileges of the landlord shall cease and determine and shall not be enforceable" | 0 | 2,289 | 1,114 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
referred to as the amending Act) which omits clause (iii) from Section 30 of the Act, the appellant was protected from eviction. He relied strongly on Section 3 of the Amending Act which reads as follows:"3. Certain pending proceedings to abate. Every proceeding in respect of any non-residential building or part thereof pending before any Court or other authority or officer on the date of the publication of this Act in the Fort St. George Gazette and instituted on the ground that such building or part was exempt from the provisions of the principal Act by virtue of clause (iii) of Section 30 of the principal Act shall abate in so far as the proceeding relates to such building or part. All rights and privileges which may have accrued before such date to any landlord in respect of any non residential building or part thereof by virtue of clause (iii) of Section 30 of the principal Act shall cease and determine and shall not be enforceable:Provided that nothing contained in this section shall be deemed to invalidate any suit or proceeding in which the decree or order passed has been executed or satisfied in full before the date mentioned in this section"6. The effect of Section 30 of the Act containing clause (iii) which was omitted by the Amending Act may be set out in the language of Section 30 itself:"30.Nothing contained in this Act, shall apply to:-(i) xxx xxx(ii) xxx xxx(iii)Any non-residential building, the rental value of which on the date of the commencement of this Act as entered in the property tax assessment book of the Municipal Council. District Board Panchayat or Panchayat Union Council or the Corporation of Madras as the case may be, exceeds four hundred rupees per mensem".7. The obvious result of S. 30 (iii) of the Act, as it stood before the amendment was that if the rental value of a non-residential building as entered in the property tax book of the Municipality exceeded Rs. 400/- per mensem a description which applies to the premises under consideration before us, the landlord would have no right to proceed against the tenant for eviction under Section 10(2) (ii) (a) of the Act. Section 3 of the Amending Act on the face of it, applies to two kinds of cases. Its heading is misleading in so far as it suggests that it is meant to apply only to one of these two kinds. It applies: firstly to cases in which a proceeding has been instituted "on the ground" that a non-residential building "was exempt from the provisions of the principal Act" by "virtue of clause (iii) of Section 30 of the principal Act" and is pending and secondly to cases where " rights and privileges which may have accrued before such date to any landlord in respect of non-residential building by virtue of clause (iii) of Section 30 of the principal Act"exist. In the kind of case falling in the first category the amendment says that the pending proceedings shall abate.As regards the second kind of case the amendment says that "the rights and privileges of the landlord shall cease and determine and shall not be enforceable"8. On admitted facts the proceedings under Section 10 (2) (ii) (a) of the proceedings under Section 10(2) (ii) (a) of the Act now before us could not fall under the 1st category of cases contemplated by Section 3. And we have been unable to see how any "rights or privileges of the landlord" in respect of any non-residential building which could have conceivably accrued or existed "by virtue of clause (iii) of Section 30 of the principal Act", are involved here Whatever rights the landlord respondent had acquired, were due to the omission of clause (iii) from Section 30 of the Act by the amending Act of 1964 only. Prior to the amendment, the effect of Section 30, clause (iii) of the Act was that the landlord had no right to proceed under Section 10(2) (ii) (a) of the Act. The effect of the amendment is that the landlord acquires a new right by the removal of this disability. Section 3 of the Amending Act could not possibly be so interpreted as to defeat the object of Section 2 which clearly amplifies the previously limited remedy by removing a restriction upon its use. Hence we fail to see how any argument built around Section 3 of the Amending Act could help the appellant at all. Apparently this is the reason why on such argument was advanced anywhere earlier. It is not necessary for the purposes of the case before us to speculate about the types of cases which may actually fall within the two wings of the obviously unartistically drafted Section 3 of the Amending Act. It is enough for us to conclude as we are bound to on the language of the provision that the case before us falls outside it.9. Learned counsel for the respondent has, quite correctly, contended that the right itself was created by the amendment of 1964 so far as the landlord respondent is concerned. Before that the special remedy provided by the Act was denied to him because of the nature of the premises let and its monthly rent. Its benefit was extended to him in 1964 so that after the amendment he could use the procedure contained in Section 10 of the Act. The amendment received the assent of the President on 5-6-1964 and was published in the State Gazette on 10-6-1964. The proceeding under Section 10 (2) (ii) (a) of the Act was commenced in December 1964. We find no force whatsoever in the appeal before us. The parties agree that the appellants will get six months from today to vacate the premises. Subject to the undertaking by the appellants will get six months from today to vacate the premises. Subject to the undertaking by the appellants and respondent landlord to give effect to this agreement this appeal is dismissed with costs.10.
### Response:
0
### Explanation:
8. On admitted facts the proceedings under Section 10 (2) (ii) (a) of the proceedings under Section 10(2) (ii) (a) of the Act now before us could not fall under the 1st category of cases contemplated by Section 3. And we have been unable to see how any "rights or privileges of the landlord" in respect of any non-residential building which could have conceivably accrued or existed "by virtue of clause (iii) of Section 30 of the principal Act", are involved here Whatever rights the landlord respondent had acquired, were due to the omission of clause (iii) from Section 30 of the Act by the amending Act of 1964 only. Prior to the amendment, the effect of Section 30, clause (iii) of the Act was that the landlord had no right to proceed under Section 10(2) (ii) (a) of the Act. The effect of the amendment is that the landlord acquires a new right by the removal of this disability. Section 3 of the Amending Act could not possibly be so interpreted as to defeat the object of Section 2 which clearly amplifies the previously limited remedy by removing a restriction upon its use. Hence we fail to see how any argument built around Section 3 of the Amending Act could help the appellant at all. Apparently this is the reason why on such argument was advanced anywhere earlier. It is not necessary for the purposes of the case before us to speculate about the types of cases which may actually fall within the two wings of the obviously unartistically drafted Section 3 of the Amending Act. It is enough for us to conclude as we are bound to on the language of the provision that the case before us falls outside it.9. Learned counsel for the respondent has, quite correctly, contended that the right itself was created by the amendment of 1964 so far as the landlord respondent is concerned. Before that the special remedy provided by the Act was denied to him because of the nature of the premises let and its monthly rent. Its benefit was extended to him in 1964 so that after the amendment he could use the procedure contained in Section 10 of the Act. The amendment received the assent of the President on 5-6-1964 and was published in the State Gazette on 10-6-1964. The proceeding under Section 10 (2) (ii) (a) of the Act was commenced in December 1964. We find no force whatsoever in the appeal before us. The parties agree that the appellants will get six months from today to vacate the premises. Subject to the undertaking by the appellants will get six months from today to vacate the premises. Subject to the undertaking by the appellants and respondent landlord to give effect to this agreement this appeal is dismissed with costs.It is clear from the majority view of this Court in M/s. Raval and Co. v. K.G. Ramachandran, AIR 1974 SC 818 at p. 823 dismissing an appeal from a judgment of the Full Bench of Madras High Court reported in AIR 1967 Mad 57 (FB) that the Act "has a a scheme of its own and it is intended to provide a complete code in respect of both contractual tenancies as well as what are popularly called statutory tenancies". In mother words the special procedure provided by the Act displaces the requirements of the procedure for eviction under the Transfer of Property Act and by an ordinary civil suit. Therefore we need not concern ourselves with the provisions of Transfer of Property Act. We need only determine here whether the landlord respondent satisfied the conditions of Section 10(2) (ii) (a) of the Act set out above. The High had held that ahad undoubtedly taken place in 1957. The Simall Cause Court had considered this fact to be immaterial on the ground that the provisions of the Act did not apply to a case such as the one before us which was in its opinion governed by the provisions of the Transfer of Property Act only. We think that the provisions of the Act must necessarily apply to all tenancies. A tenancy is essentially based on and governed by an agreement or contract even when a statute intervenes to limit the area within which an agreement or contract operates or subjects contractual rights to statutory rights and obligations. In the case before us thewas certainly subsequent to 1945 so that on the plain language of the provision theof 1957 would be covered by section 10 (2) (ii)(a) of the Act.The obvious result of S. 30 (iii) of the Act, as it stood before the amendment was that if the rental value of abuilding as entered in the property tax book of the Municipality exceeded Rs. 400/per mensem a description which applies to the premises under consideration before us, the landlord would have no right to proceed against the tenant for eviction under Section 10(2) (ii) (a) of the Act. Section 3 of the Amending Act on the face of it, applies to two kinds of cases. Its heading is misleading in so far as it suggests that it is meant to apply only to one of these two kinds. It applies: firstly to cases in which a proceeding has been instituted "on the ground" that abuilding "was exempt from the provisions of the principal Act" by "virtue of clause (iii) of Section 30 of the principal Act" and is pending and secondly to cases where " rights and privileges which may have accrued before such date to any landlord in respect ofbuilding by virtue of clause (iii) of Section 30 of the principal Act"exist. In the kind of case falling in the first category the amendment says that the pending proceedings shall abate.As regards the second kind of case the amendment says that "the rights and privileges of the landlord shall cease and determine and shall not be enforceable"
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East India Housing and Land Development Trust Limited Vs. Commissioner of Income Tax, West Bengal | SHAH, J.1. This is an appeal with special leave against the judgment of the Income-tax Appellate Tribunal, Calcutta Bench, Calcutta. The appellant is a private company registered under the Indian Companies Act incorporated with the objects, amongst others, (1) to buy and develop landed properties and (2) to promote and develop markets. In 1946 the appellant purchased ten bighas of land in the town of Calcutta and set up a market therein. The appellant constructed shops and stalls on platforms on that land. For the assessment year 1953-54 the appellant received Rs. 53, 145 as income from the tenants of shops and Rs. 29, 721 from the tenants or occupants of stalls. The Income-tax Officer assessed the income derived from shops and stalls under section 9 of the Income-tax Act. The order of assessment was confirmed in appeal by the Appellate Assistant Commissioner and by the Tribunal. The appellant has obtained special leave to appeal against the order of the Tribunal The appellant contends that because it is a company formed with the object of promoting and developing markets, its income derived from the shops and stalls is liable to be taxed under section 10 of the Income-tax Act as "profits or gains of business" and that the income is not liable to be taxed as "income from property" under section 9 of the Act. The appellant is undoubtedly, under the provisions of the Calcutta Municipal Act, 1951, required to obtain a licence from the Corporation of Calcutta and to maintain sanitary and other services in conformity with the provisions of that Act and for that purpose has to maintain a staff and to incur expenditure. But, on that account, the income derived from letting out property belonging to the appellant does not become "profits or gains" from business within the meaning of sections 6 and 10 of the Income-tax Act. By section 6 of the Income-tax Act the following six different heads of income are made chargeable : (1) salaries, (2) interest on securities, (3) income from property, (4) profits and gains of business, profession or vocation, (5) income from other sources and (6) capital gains. This classification under distinct heads of income, profits and gains is made having regard to the sources from which income is derived. Income-tax is undoubtedly levied on the total taxable income of the taxpayer and the tax levied is a single tax on the aggregate taxable receipts from all the sources ; it, is not a collection of taxes separately levied on distinct heads of income. But the distinct heads specified in section 6 indicating the sources are mutually exclusive and income derived from different sources falling under specific heads has to be computed for the purpose of taxation in the manner provided by the appropriate section. If the income from a source falls within a specific head set out in section 6, the fact that it may indirectly be covered by another head will not make the income taxable under the latter headThe income derived by the company from shops and stalls is income received from property and falls under the specific head described in section 9. The character of that income is not altered because it is received by a company formed with the object of developing and setting up markets. In United Commercial Bank Ltd. v. Commissioner of Income-tax this court explained after an exhaustive review of the authorities that under the scheme of the Income-tax Act, 1922, the heads of income, profits and gains enumerated in the different clauses of section 6 are mutually exclusive, each specific head covering items of income arising from a particular source.2. In Fry v. Salisbury House Estates Co. Ltd. a company formed to acquire, manage and deal with a block of buildings, having let out the rooms as unfurnished offices to tenants, was held chargeable to tax under Schedule A to the Income Tax Act, 1918, and not Schedule D. The company provided a staff to operate the lifts and to act as porters and watch and protect the building; and also provided certain services such as heating and cleaning to the tenants at an additional charge. The taxing authorities sought to charge the income from letting out of the rooms as receipts of trade chargeable under Schedule D, but that claim was negatived by the House of Lords holding that the rents were profits arising from the ownership of land assessable under Schedule A and that the same could not be included in the assessment under Schedule D as trade receipts.3. In Commercial Properties Ltd. v. Commissioner of Income-tax income derived from rents by a company whose sole object was to acquire lands, build houses and let them to tenants and whose sole business was management and collection of rents from the said properties, was held assessable under section 9 and not under section 10 of the Income-tax Act. It was observed in that case that, merely because the owner of the property was a company incorporated with the object of owning property, the incidence of income derived from the property owned could not be regarded as altered; the income came more directly and specifically under the head "property" than income from businessThe income received by the appellant from shops is indisputably income from property; so is the income from stalls from occupants. The character of the income is not altered merely because some stalls remain occupied by the same occupants and the remaining stalls are occupied by a shifting class of occupants. The primary source of income from the stalls is occupation of the stalls, and it is a matter of little moment that the occupation which is the source of the income is temporary. The income-tax authorities were, in our judgment, right in holding that the income received by the appellant was assessable under section 9 of the Income-tax Act.4. | 0[ds]The appellant is undoubtedly, under the provisions of the Calcutta Municipal Act, 1951, required to obtain a licence from the Corporation of Calcutta and to maintain sanitary and other services in conformity with the provisions of that Act and for that purpose has to maintain a staff and to incur expenditure. But, on that account, the income derived from letting out property belonging to the appellant does not become "profits or gains" from business within the meaning of sections 6 and 10 of thee income received by the appellant from shops is indisputablyso is the income from stalls from occupants. The character of the income is not altered merely because some stalls remain occupied by the same occupants and the remaining stalls are occupied by a shifting class of occupants. The primary source of income from the stalls is occupation of the stalls, and it is a matter of little moment that the occupation which is the source of the income is temporary. Theauthorities were, in our judgment, right in holding that the income received by the appellant was assessable under section 9 of the | 0 | 1,072 | 203 | ### Instruction:
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SHAH, J.1. This is an appeal with special leave against the judgment of the Income-tax Appellate Tribunal, Calcutta Bench, Calcutta. The appellant is a private company registered under the Indian Companies Act incorporated with the objects, amongst others, (1) to buy and develop landed properties and (2) to promote and develop markets. In 1946 the appellant purchased ten bighas of land in the town of Calcutta and set up a market therein. The appellant constructed shops and stalls on platforms on that land. For the assessment year 1953-54 the appellant received Rs. 53, 145 as income from the tenants of shops and Rs. 29, 721 from the tenants or occupants of stalls. The Income-tax Officer assessed the income derived from shops and stalls under section 9 of the Income-tax Act. The order of assessment was confirmed in appeal by the Appellate Assistant Commissioner and by the Tribunal. The appellant has obtained special leave to appeal against the order of the Tribunal The appellant contends that because it is a company formed with the object of promoting and developing markets, its income derived from the shops and stalls is liable to be taxed under section 10 of the Income-tax Act as "profits or gains of business" and that the income is not liable to be taxed as "income from property" under section 9 of the Act. The appellant is undoubtedly, under the provisions of the Calcutta Municipal Act, 1951, required to obtain a licence from the Corporation of Calcutta and to maintain sanitary and other services in conformity with the provisions of that Act and for that purpose has to maintain a staff and to incur expenditure. But, on that account, the income derived from letting out property belonging to the appellant does not become "profits or gains" from business within the meaning of sections 6 and 10 of the Income-tax Act. By section 6 of the Income-tax Act the following six different heads of income are made chargeable : (1) salaries, (2) interest on securities, (3) income from property, (4) profits and gains of business, profession or vocation, (5) income from other sources and (6) capital gains. This classification under distinct heads of income, profits and gains is made having regard to the sources from which income is derived. Income-tax is undoubtedly levied on the total taxable income of the taxpayer and the tax levied is a single tax on the aggregate taxable receipts from all the sources ; it, is not a collection of taxes separately levied on distinct heads of income. But the distinct heads specified in section 6 indicating the sources are mutually exclusive and income derived from different sources falling under specific heads has to be computed for the purpose of taxation in the manner provided by the appropriate section. If the income from a source falls within a specific head set out in section 6, the fact that it may indirectly be covered by another head will not make the income taxable under the latter headThe income derived by the company from shops and stalls is income received from property and falls under the specific head described in section 9. The character of that income is not altered because it is received by a company formed with the object of developing and setting up markets. In United Commercial Bank Ltd. v. Commissioner of Income-tax this court explained after an exhaustive review of the authorities that under the scheme of the Income-tax Act, 1922, the heads of income, profits and gains enumerated in the different clauses of section 6 are mutually exclusive, each specific head covering items of income arising from a particular source.2. In Fry v. Salisbury House Estates Co. Ltd. a company formed to acquire, manage and deal with a block of buildings, having let out the rooms as unfurnished offices to tenants, was held chargeable to tax under Schedule A to the Income Tax Act, 1918, and not Schedule D. The company provided a staff to operate the lifts and to act as porters and watch and protect the building; and also provided certain services such as heating and cleaning to the tenants at an additional charge. The taxing authorities sought to charge the income from letting out of the rooms as receipts of trade chargeable under Schedule D, but that claim was negatived by the House of Lords holding that the rents were profits arising from the ownership of land assessable under Schedule A and that the same could not be included in the assessment under Schedule D as trade receipts.3. In Commercial Properties Ltd. v. Commissioner of Income-tax income derived from rents by a company whose sole object was to acquire lands, build houses and let them to tenants and whose sole business was management and collection of rents from the said properties, was held assessable under section 9 and not under section 10 of the Income-tax Act. It was observed in that case that, merely because the owner of the property was a company incorporated with the object of owning property, the incidence of income derived from the property owned could not be regarded as altered; the income came more directly and specifically under the head "property" than income from businessThe income received by the appellant from shops is indisputably income from property; so is the income from stalls from occupants. The character of the income is not altered merely because some stalls remain occupied by the same occupants and the remaining stalls are occupied by a shifting class of occupants. The primary source of income from the stalls is occupation of the stalls, and it is a matter of little moment that the occupation which is the source of the income is temporary. The income-tax authorities were, in our judgment, right in holding that the income received by the appellant was assessable under section 9 of the Income-tax Act.4.
### Response:
0
### Explanation:
The appellant is undoubtedly, under the provisions of the Calcutta Municipal Act, 1951, required to obtain a licence from the Corporation of Calcutta and to maintain sanitary and other services in conformity with the provisions of that Act and for that purpose has to maintain a staff and to incur expenditure. But, on that account, the income derived from letting out property belonging to the appellant does not become "profits or gains" from business within the meaning of sections 6 and 10 of thee income received by the appellant from shops is indisputablyso is the income from stalls from occupants. The character of the income is not altered merely because some stalls remain occupied by the same occupants and the remaining stalls are occupied by a shifting class of occupants. The primary source of income from the stalls is occupation of the stalls, and it is a matter of little moment that the occupation which is the source of the income is temporary. Theauthorities were, in our judgment, right in holding that the income received by the appellant was assessable under section 9 of the
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Controller Of Estate Duty, Madras Vs. Parvathi Ammal | this is furnished by the case of Rash Mohan Chatterjee v. Controller of Estate Duty, West [Bengal, (1964) 52 ITR (ED) 1 = (AIR 1964 Cal 160 ). In that case the deceased settled on July 1, 1954 certain premises in trust for the absolute use and benefit of his two sons in equal shares during their lives and upon the death of one or both the sons for the use of the wife or wives of such son or sons with remainder to the male children of the two sons in equal shares per stirpes. The upper portion of the premises was leased to the deceased himself on a rent of Rs. 150 per month for a term of five years with effect from the date of settlement. The lease expired on June 30, 1959 but the deceased continued to occupy that part of the premises for a few days thereafter, until his death on July 11, 1959. The question which arose for determination was whether and to what extent estate duty was chargeable in regard to those premises under Section 10 of the Act. It was held that the lease gave to the donor possession and enjoyment of the property itself and the case fell within the statutory charge under Section 10. As, however, Section 10 provided that such property was chargeable only to the extent that the deceased was not excluded, estate duty was payable by the accountable persons only on that portion of the premises which was in the occupation of the deceased as a lessee.23. The High Court in the judgment under appeal mentioned that Mayavaram Lodge was a bundle of rights of which possession and enjoyment formed a part. We may in this context observe that it was the ownership of the above property which constituted the bundle of rights. The view urged on behalf of the respondent and accepted by the High Court that the estate duty is payable only in respect of the value of the right to possession and enjoyment in the hand of the deceased as a lessee of Mayavaram Lodge runs, in our opinion, counter to the main language of Section 10 of the Act. What the section contemplates is that it would be the property taken under the gift which shall be deemed to pass on the donors death if the bona fide possession and enjoyment thereof was not immediately assumed by the donee and thenceforward retained to the entire exclusion of the donor or of any benefit to him by contract or otherwise. There is noting in the section to indicate that if the donee does not immediately assume bona fide possession and enjoyment of the gifted property and thenceforward retain it to the entire exclusion of the donor, in such an event the right only to possession or enjoyment of the property shall be deemed to pass on the death of the donor. Apart from the case of Rash Mohan Chatterjee, (1964) 52 ITR (ED) 1 = (AIR 1964 Cal 160 ) (supra) to which we have already made a reference, the stand taken on behalf of the respondent cannot be accepted in the face of the decision of this Court in the case of George Da Costa (1967) 63 ITR 497 = (AIR 1967 SO 849) (supra). The deceased in that case had purchased a house in the joint names of himself and his wife in 1940. They made a gift of the house to their sons in October, 1954. The document recited that the donees had accepted the gift and that they had been put in possession. The deceased died on September 30, 1959. The Controller included the value of that house in the principal value of the estate that passed on the deceaseds death under Section 10 of the Estate Duty Act, 1953. The Board found that, though the deceased had gifted the house for four years before his death, he still continued to stay in the house till his death as the head of the family and was also looking after the affairs of the house. It was further found that the property was purchased entirely out of the funds of the deceased, and though the property stood in the joint names of the deceased and his wife, the wife was merely a namelender and the entire property belonged to the deceased. It was held by this Court that the value of the property was correctly included in the estate of the deceased as property deemed to pass on his death under Section 10. If the view propounded on behalf of the respondent were to be accepted, in that case the property which passed on the death of the deceased in the case of George Da Costa could only be the value of the right to possession. In our opinion, the stand taken on behalf of the respondent in this respect is clearly untenable.24. Lastly, it has been argued on behalf of the respondent that we should remand the case to find as to whether the deed of March 11, 1955 constituted deed of partition. We are unable to accede to this submission. The High Court has proceeded upon the basis that the property in question was gifted by the deceased in favour of his sons as a result of that deed. The Board of Direct Taxes found on reference to the aforesaid deed that all the properties mentioned therein were the self-acquired properties of the deceased and there was nothing in any part of the deed to show an intention on the part of the deceased to treat them as properties belonging to the joint family. It was also found that there was no evidence of any clear intention of the deceased to waive his separate rights. Accordingly, the Board came to the conclusion that the said document was not a partition deed relating to the joint family property. In the circumstances, we find no sufficient ground for remanding the case. | 1[ds]15. So far as point No. (4) is concerned, the law was subsequently amended by Section 35 (2) of the Finance Act, 1959. Under that clause, the donors actual occupation of the land, enjoyment of an incorporeal right over the land or possession of the chattels is to be disregarded if for full consideration, e. g., if he paid a full rent to the donee or occupied it under a lease for which he gave full value.The present case, in our opinion, clearly falls within the purview of the dictum laid down by the High Court of Australia m 13 CLR 503 (Aus) (supra) and of the Judicial Committee in the case of John Chick, 1958 AC 435 (supra).As already mentioned, the High Court has found that the property which was the subject-matter of the gift under the deed of March 11, 1955 was the entirety of Mayavaram Lodge with all the rights and that the gift was not subject to any claim or reservation. It has also been found that on the execution of the aforesaid deed the donees assumed possession and enjoyment of the entirety of the house. On June 25, 1955 the donor took the aforesaid on house on lease from the donees. These facts would show that the possession and enjoyment of Mayavaram Lodge was not subsequent to the gift retained by the donees to the entire exclusion of the donor or of any benefit to him by contract or otherwise . Mayavaram Lodge as such shall be deemed to pass on the death of the deceased under Section 10 of the Act. The case of Ramachandra Gounder (1973, 88 ITR 448 = (AIR 1973 SC 1170 = 1973 Tax LR 841) (supra) upon which great reliance has been placed by Mr. Swaminathan can hardly be of much assistance to him because in that case the gifted property was subject to the tenancy-at-will granted to the firm.Ramachandra Gounders case was thus covered by the principle laid down in Munros case 1934 AC 61. The question of invoking that principle does not arise in the present case because the, property which is the subject-matter of the gift was the entirety of Mayavaram Lodge with all the rights and the same were not subject to any right in favour of a partnership.The principle to be kept in view in such cases is to examine the deed of gift and find out as to what is the subject-matter of the gift. If the gift comprises the full ownership of the property not shorn of any right including tenancy right in favour of third parties, in such an event in order to prevent the incidence of estate duty immediate bona fide physical possession and enjoyment of the gifted property must ordinarily be assumed by the donee and retained thereafter to the exclusion of the donor. In case, however, the subject matter of the gift is property shorn of certain rights, in that case the residue of the rights in that property would be the subject-matter of the gift. In such an event it may not sometimes in the very nature of things be possible for the donee to assume physical possession and enjoyment of the property., In such cases the possession and enjoyment of the gifted property which may be assumed by the donee would only be such as is possible under theis, no doubt, true that the words "to the extent" do not find a mention in the statutory provisions which were construed in the cases of John Lang and Chick, but that fact would not materially affect our conclusion. The words "to the extent" connote that if the donee does not assume immediate bona fide possession and enjoyment of a part or fraction of the gifted property and thenceforward retain it to the entire exclusion of the donor or of any benefit to him by contract or otherwise, it shall be that part or fraction of the gifted property which shall be deemed to pass on the death of the donor. Those words thus seek to restrict the liability to pay estate duty in respect of only the aforesaid part or fraction of the property. They underline the intention of the legislature that in the event of the donee not assuming bona fide possession and enjoyment of a part or fraction of the gifted property and thenceforward retaining it to the entire exclusion of the donor or of any benefit to him by contract or otherwise: the estate duty shall be payable not in respect of the whole of the gifted property but only in respect of that part or fraction of the gifted property of which the donee did not assume bona fide possession and enjoyment and thenceforward retain to the entire exclusion of the donor or of any benefit to him by contract orfrom the case of Rash Mohan Chatterjee, (1964) 52 ITR (ED) 1 = (AIR 1964 Cal 160 ) (supra) to which we have already made a reference, the stand taken on behalf of the respondent cannot be accepted in the face of the decision of this Court in the case of George Da Costa (1967) 63 ITR 497 = (AIR 1967 SO 849) (supra). The deceased in that case had purchased a house in the joint names of himself and his wife in 1940. They made a gift of the house to their sons in October, 1954. The document recited that the donees had accepted the gift and that they had been put in possession. The deceased died on September 30, 1959. The Controller included the value of that house in the principal value of the estate that passed on the deceaseds death under Section 10 ofthe Estate Duty Act, 1953. The Board found that, though the deceased had gifted the house for four years before his death, he still continued to stay in the house till his death as the head of the family and was also looking after the affairs of the house. It was further found that the property was purchased entirely out of the funds of the deceased, and though the property stood in the joint names of the deceased and his wife, the wife was merely a namelender and the entire property belonged to the deceased. It was held by this Court that the value of the property was correctly included in the estate of the deceased as property deemed to pass on his death under Section 10. If the view propounded on behalf of the respondent were to be accepted, in that case the property which passed on the death of the deceased in the case of George Da Costa could only be the value of the right to possession. In our opinion, the stand taken on behalf of the respondent in this respect is clearly untenable.24. Lastly, it has been argued on behalf of the respondent that we should remand the case to find as to whether the deed of March 11, 1955 constituted deed of partition. We are unable to accede to this submission. The High Court has proceeded upon the basis that the property in question was gifted by the deceased in favour of his sons as a result of that deed. The Board of Direct Taxes found on reference to the aforesaid deed that all the properties mentioned therein were the self-acquired properties of the deceased and there was nothing in any part of the deed to show an intention on the part of the deceased to treat them as properties belonging to the joint family. It was also found that there was no evidence of any clear intention of the deceased to waive his separate rights. Accordingly, the Board came to the conclusion that the said document was not a partition deed relating to the joint family property. In the circumstances, we find no sufficient ground for remanding the case. | 1 | 8,821 | 1,427 | ### Instruction:
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this is furnished by the case of Rash Mohan Chatterjee v. Controller of Estate Duty, West [Bengal, (1964) 52 ITR (ED) 1 = (AIR 1964 Cal 160 ). In that case the deceased settled on July 1, 1954 certain premises in trust for the absolute use and benefit of his two sons in equal shares during their lives and upon the death of one or both the sons for the use of the wife or wives of such son or sons with remainder to the male children of the two sons in equal shares per stirpes. The upper portion of the premises was leased to the deceased himself on a rent of Rs. 150 per month for a term of five years with effect from the date of settlement. The lease expired on June 30, 1959 but the deceased continued to occupy that part of the premises for a few days thereafter, until his death on July 11, 1959. The question which arose for determination was whether and to what extent estate duty was chargeable in regard to those premises under Section 10 of the Act. It was held that the lease gave to the donor possession and enjoyment of the property itself and the case fell within the statutory charge under Section 10. As, however, Section 10 provided that such property was chargeable only to the extent that the deceased was not excluded, estate duty was payable by the accountable persons only on that portion of the premises which was in the occupation of the deceased as a lessee.23. The High Court in the judgment under appeal mentioned that Mayavaram Lodge was a bundle of rights of which possession and enjoyment formed a part. We may in this context observe that it was the ownership of the above property which constituted the bundle of rights. The view urged on behalf of the respondent and accepted by the High Court that the estate duty is payable only in respect of the value of the right to possession and enjoyment in the hand of the deceased as a lessee of Mayavaram Lodge runs, in our opinion, counter to the main language of Section 10 of the Act. What the section contemplates is that it would be the property taken under the gift which shall be deemed to pass on the donors death if the bona fide possession and enjoyment thereof was not immediately assumed by the donee and thenceforward retained to the entire exclusion of the donor or of any benefit to him by contract or otherwise. There is noting in the section to indicate that if the donee does not immediately assume bona fide possession and enjoyment of the gifted property and thenceforward retain it to the entire exclusion of the donor, in such an event the right only to possession or enjoyment of the property shall be deemed to pass on the death of the donor. Apart from the case of Rash Mohan Chatterjee, (1964) 52 ITR (ED) 1 = (AIR 1964 Cal 160 ) (supra) to which we have already made a reference, the stand taken on behalf of the respondent cannot be accepted in the face of the decision of this Court in the case of George Da Costa (1967) 63 ITR 497 = (AIR 1967 SO 849) (supra). The deceased in that case had purchased a house in the joint names of himself and his wife in 1940. They made a gift of the house to their sons in October, 1954. The document recited that the donees had accepted the gift and that they had been put in possession. The deceased died on September 30, 1959. The Controller included the value of that house in the principal value of the estate that passed on the deceaseds death under Section 10 of the Estate Duty Act, 1953. The Board found that, though the deceased had gifted the house for four years before his death, he still continued to stay in the house till his death as the head of the family and was also looking after the affairs of the house. It was further found that the property was purchased entirely out of the funds of the deceased, and though the property stood in the joint names of the deceased and his wife, the wife was merely a namelender and the entire property belonged to the deceased. It was held by this Court that the value of the property was correctly included in the estate of the deceased as property deemed to pass on his death under Section 10. If the view propounded on behalf of the respondent were to be accepted, in that case the property which passed on the death of the deceased in the case of George Da Costa could only be the value of the right to possession. In our opinion, the stand taken on behalf of the respondent in this respect is clearly untenable.24. Lastly, it has been argued on behalf of the respondent that we should remand the case to find as to whether the deed of March 11, 1955 constituted deed of partition. We are unable to accede to this submission. The High Court has proceeded upon the basis that the property in question was gifted by the deceased in favour of his sons as a result of that deed. The Board of Direct Taxes found on reference to the aforesaid deed that all the properties mentioned therein were the self-acquired properties of the deceased and there was nothing in any part of the deed to show an intention on the part of the deceased to treat them as properties belonging to the joint family. It was also found that there was no evidence of any clear intention of the deceased to waive his separate rights. Accordingly, the Board came to the conclusion that the said document was not a partition deed relating to the joint family property. In the circumstances, we find no sufficient ground for remanding the case.
### Response:
1
### Explanation:
Gounders case was thus covered by the principle laid down in Munros case 1934 AC 61. The question of invoking that principle does not arise in the present case because the, property which is the subject-matter of the gift was the entirety of Mayavaram Lodge with all the rights and the same were not subject to any right in favour of a partnership.The principle to be kept in view in such cases is to examine the deed of gift and find out as to what is the subject-matter of the gift. If the gift comprises the full ownership of the property not shorn of any right including tenancy right in favour of third parties, in such an event in order to prevent the incidence of estate duty immediate bona fide physical possession and enjoyment of the gifted property must ordinarily be assumed by the donee and retained thereafter to the exclusion of the donor. In case, however, the subject matter of the gift is property shorn of certain rights, in that case the residue of the rights in that property would be the subject-matter of the gift. In such an event it may not sometimes in the very nature of things be possible for the donee to assume physical possession and enjoyment of the property., In such cases the possession and enjoyment of the gifted property which may be assumed by the donee would only be such as is possible under theis, no doubt, true that the words "to the extent" do not find a mention in the statutory provisions which were construed in the cases of John Lang and Chick, but that fact would not materially affect our conclusion. The words "to the extent" connote that if the donee does not assume immediate bona fide possession and enjoyment of a part or fraction of the gifted property and thenceforward retain it to the entire exclusion of the donor or of any benefit to him by contract or otherwise, it shall be that part or fraction of the gifted property which shall be deemed to pass on the death of the donor. Those words thus seek to restrict the liability to pay estate duty in respect of only the aforesaid part or fraction of the property. They underline the intention of the legislature that in the event of the donee not assuming bona fide possession and enjoyment of a part or fraction of the gifted property and thenceforward retaining it to the entire exclusion of the donor or of any benefit to him by contract or otherwise: the estate duty shall be payable not in respect of the whole of the gifted property but only in respect of that part or fraction of the gifted property of which the donee did not assume bona fide possession and enjoyment and thenceforward retain to the entire exclusion of the donor or of any benefit to him by contract orfrom the case of Rash Mohan Chatterjee, (1964) 52 ITR (ED) 1 = (AIR 1964 Cal 160 ) (supra) to which we have already made a reference, the stand taken on behalf of the respondent cannot be accepted in the face of the decision of this Court in the case of George Da Costa (1967) 63 ITR 497 = (AIR 1967 SO 849) (supra). The deceased in that case had purchased a house in the joint names of himself and his wife in 1940. They made a gift of the house to their sons in October, 1954. The document recited that the donees had accepted the gift and that they had been put in possession. The deceased died on September 30, 1959. The Controller included the value of that house in the principal value of the estate that passed on the deceaseds death under Section 10 ofthe Estate Duty Act, 1953. The Board found that, though the deceased had gifted the house for four years before his death, he still continued to stay in the house till his death as the head of the family and was also looking after the affairs of the house. It was further found that the property was purchased entirely out of the funds of the deceased, and though the property stood in the joint names of the deceased and his wife, the wife was merely a namelender and the entire property belonged to the deceased. It was held by this Court that the value of the property was correctly included in the estate of the deceased as property deemed to pass on his death under Section 10. If the view propounded on behalf of the respondent were to be accepted, in that case the property which passed on the death of the deceased in the case of George Da Costa could only be the value of the right to possession. In our opinion, the stand taken on behalf of the respondent in this respect is clearly untenable.24. Lastly, it has been argued on behalf of the respondent that we should remand the case to find as to whether the deed of March 11, 1955 constituted deed of partition. We are unable to accede to this submission. The High Court has proceeded upon the basis that the property in question was gifted by the deceased in favour of his sons as a result of that deed. The Board of Direct Taxes found on reference to the aforesaid deed that all the properties mentioned therein were the self-acquired properties of the deceased and there was nothing in any part of the deed to show an intention on the part of the deceased to treat them as properties belonging to the joint family. It was also found that there was no evidence of any clear intention of the deceased to waive his separate rights. Accordingly, the Board came to the conclusion that the said document was not a partition deed relating to the joint family property. In the circumstances, we find no sufficient ground for remanding the case.
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Biju K.K Vs. Cochin University of Science and Technology, Kochi & Ors | M. R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 30.06.2016 passed by the High Court of Kerala at Ernakulam in Writ Appeal No.1593 of 2014 by which the Division Bench of the High Court has dismissed the said appeal and has not interfered with the judgment and order passed by the learned Single Judge dismissing the writ petition preferred by the appellant herein – original writ petitioner, the original writ petitioner has preferred the present appeal. 2. That the appellant herein - original writ petitioner was serving as Technical Assistant Grade-II on daily wages in the School of Engineering under the Cochin University of Science and Technology. That he was continued in service as daily wager by giving periodical breaks. Thereafter he applied for the post of Technical Assistant Grade – II in terms of Notification dated 24.07.2010 issued by the respondent University. He was placed much below in the rank list as he was awarded less marks on experience ignoring his earlier services rendered as daily wagers. Therefore, he approached the High Court by way of Writ Petition No.27538 of 2012. All the other employees in the rank list were also made party to the writ petition. 2.1 By a detailed judgment and order the learned Single Judge specifically observed and held that the original respondent no.5 was given the appointment, and was found at serial no.2 in the merit list, his appointment was absolutely illegal as he was not having the requisite qualification and he was not fulfilling the eligibility criteria. So far as the case of the writ petitioner is concerned, the learned Single Judge was of the opinion that as the Selection Committee has followed certain criteria and forwarded the same in respect of all the candidates awarding the marks on experience, cannot be said to be arbitrary and it is not open for the Court to exercise the power under judicial review and decide otherwise. That it was submitted on behalf of the writ petitioner that even the 6th respondent was not having the requisite qualification and was not fulfilling the eligibility criteria as he was not having the experience in the Computer Science Lab. The learned Single Judge again observed that the Selection Committee found that the experience certificate submitted by respondent no.6 did satisfy the criteria, and there was no reason to interfere with the same. Consequently, the learned Single Judge partly allowed the said writ petition and set aside the appointment of the 5th respondent and directed that the marks of the 5th respondent shall be deleted and fresh rank list be finalized and it shall be open for the respondent to make appointments based on the modified rank list. Appeal against the judgment and order passed by the learned Single Judge has been dismissed by the impugned Judgment and Order passed by the Division Bench of the High Court, hence the present appeal at the instance of the original writ petitioner. 3. Having heard the learned counsel for the respective parties and having gone through the judgment and order passed by the learned Single Judge as well as the Division Bench of the High Court, it appears that when a specific plea was taken before the learned Single Judge that the appellant has been wrongly denied the marks on experience ignoring his earlier service rendered as a daily wager and that the original respondent no.6 was also lacking the eligibility criteria as respondent no.6 was not having the experience in a Computer Science Lab, the learned Single Judge refused to consider the same on merits. This was by observing that as the Selection Committee has taken the decision awarding marks for experience and that the Selection Committee has found that the Experience Certificate produced by respondent no.6 was sufficient and no interference was called for. However, when the aforesaid plea was raised the High Court ought to have considered the same on merits. It is required to be noted that what was challenged was the decision of the Selection Committee and therefore, the High Court was not justified in not deciding the same on merits on the ground that when the Selection Committee has taken a decision, in exercise of powers under judicial review, the High Court is not required to interfere with the same. Under the circumstances to the aforesaid extent the matter has to be remanded to the learned Single Judge. | 1[ds]3. Having heard the learned counsel for the respective parties and having gone through the judgment and order passed by the learned Single Judge as well as the Division Bench of the High Court, it appears that when a specific plea was taken before the learned Single Judge that the appellant has been wrongly denied the marks on experience ignoring his earlier service rendered as a daily wager and that the original respondent no.6 was also lacking the eligibility criteria as respondent no.6 was not having the experience in a Computer Science Lab, the learned Single Judge refused to consider the same on merits. This was by observing that as the Selection Committee has taken the decision awarding marks for experience and that the Selection Committee has found that the Experience Certificate produced by respondent no.6 was sufficient and no interference was called for. However, when the aforesaid plea was raised the High Court ought to have considered the same on merits. It is required to be noted that what was challenged was the decision of the Selection Committee and therefore, the High Court was not justified in not deciding the same on merits on the ground that when the Selection Committee has taken a decision, in exercise of powers under judicial review, the High Court is not required to interfere with the same. Under the circumstances to the aforesaid extent the matter has to be remanded to the learned Single Judge. | 1 | 778 | 258 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
M. R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 30.06.2016 passed by the High Court of Kerala at Ernakulam in Writ Appeal No.1593 of 2014 by which the Division Bench of the High Court has dismissed the said appeal and has not interfered with the judgment and order passed by the learned Single Judge dismissing the writ petition preferred by the appellant herein – original writ petitioner, the original writ petitioner has preferred the present appeal. 2. That the appellant herein - original writ petitioner was serving as Technical Assistant Grade-II on daily wages in the School of Engineering under the Cochin University of Science and Technology. That he was continued in service as daily wager by giving periodical breaks. Thereafter he applied for the post of Technical Assistant Grade – II in terms of Notification dated 24.07.2010 issued by the respondent University. He was placed much below in the rank list as he was awarded less marks on experience ignoring his earlier services rendered as daily wagers. Therefore, he approached the High Court by way of Writ Petition No.27538 of 2012. All the other employees in the rank list were also made party to the writ petition. 2.1 By a detailed judgment and order the learned Single Judge specifically observed and held that the original respondent no.5 was given the appointment, and was found at serial no.2 in the merit list, his appointment was absolutely illegal as he was not having the requisite qualification and he was not fulfilling the eligibility criteria. So far as the case of the writ petitioner is concerned, the learned Single Judge was of the opinion that as the Selection Committee has followed certain criteria and forwarded the same in respect of all the candidates awarding the marks on experience, cannot be said to be arbitrary and it is not open for the Court to exercise the power under judicial review and decide otherwise. That it was submitted on behalf of the writ petitioner that even the 6th respondent was not having the requisite qualification and was not fulfilling the eligibility criteria as he was not having the experience in the Computer Science Lab. The learned Single Judge again observed that the Selection Committee found that the experience certificate submitted by respondent no.6 did satisfy the criteria, and there was no reason to interfere with the same. Consequently, the learned Single Judge partly allowed the said writ petition and set aside the appointment of the 5th respondent and directed that the marks of the 5th respondent shall be deleted and fresh rank list be finalized and it shall be open for the respondent to make appointments based on the modified rank list. Appeal against the judgment and order passed by the learned Single Judge has been dismissed by the impugned Judgment and Order passed by the Division Bench of the High Court, hence the present appeal at the instance of the original writ petitioner. 3. Having heard the learned counsel for the respective parties and having gone through the judgment and order passed by the learned Single Judge as well as the Division Bench of the High Court, it appears that when a specific plea was taken before the learned Single Judge that the appellant has been wrongly denied the marks on experience ignoring his earlier service rendered as a daily wager and that the original respondent no.6 was also lacking the eligibility criteria as respondent no.6 was not having the experience in a Computer Science Lab, the learned Single Judge refused to consider the same on merits. This was by observing that as the Selection Committee has taken the decision awarding marks for experience and that the Selection Committee has found that the Experience Certificate produced by respondent no.6 was sufficient and no interference was called for. However, when the aforesaid plea was raised the High Court ought to have considered the same on merits. It is required to be noted that what was challenged was the decision of the Selection Committee and therefore, the High Court was not justified in not deciding the same on merits on the ground that when the Selection Committee has taken a decision, in exercise of powers under judicial review, the High Court is not required to interfere with the same. Under the circumstances to the aforesaid extent the matter has to be remanded to the learned Single Judge.
### Response:
1
### Explanation:
3. Having heard the learned counsel for the respective parties and having gone through the judgment and order passed by the learned Single Judge as well as the Division Bench of the High Court, it appears that when a specific plea was taken before the learned Single Judge that the appellant has been wrongly denied the marks on experience ignoring his earlier service rendered as a daily wager and that the original respondent no.6 was also lacking the eligibility criteria as respondent no.6 was not having the experience in a Computer Science Lab, the learned Single Judge refused to consider the same on merits. This was by observing that as the Selection Committee has taken the decision awarding marks for experience and that the Selection Committee has found that the Experience Certificate produced by respondent no.6 was sufficient and no interference was called for. However, when the aforesaid plea was raised the High Court ought to have considered the same on merits. It is required to be noted that what was challenged was the decision of the Selection Committee and therefore, the High Court was not justified in not deciding the same on merits on the ground that when the Selection Committee has taken a decision, in exercise of powers under judicial review, the High Court is not required to interfere with the same. Under the circumstances to the aforesaid extent the matter has to be remanded to the learned Single Judge.
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Raghu Raj Singh Rousha Vs. M/S. Shivam Sundaram Promoters(P)L &Anr | complaint. Section 202 says that the Magistrate may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint; in other words, the scope of an inquiry under the section is limited to finding out the truth or falsehood of the complaint in order to determine the question of the issue of process. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial. Section 203, be it noted, consists of two parts: the first part indicates what are the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. Section 204 says that if in the opinion of the Magistrate there is sufficient ground for proceeding, he shall take steps for the issue of necessary process." 15. The question again came up for consideration before this Court recently in Divine Retreat Centre v. State of Kerala & Ors. [AIR 2008 SC 1614 ], wherein this Court opined that the jurisdiction of the High Court even in terms of Section 482 of the Code is not unlimited. It was held that even in a case where no action is taken by the police, the informants remedy lies under Sections 190 and 200 of the Code.Similar view has been expressed by this Court in Sakiri Vasu v. State of Uttar Pradesh and Others [(2008) 2 SCC 409] .16. It is in the aforementioned backdrop the decision of this Court in Chandra Deo Singh (supra) may be considered. Therein, this Court opined that although an accused has no right to participate unless the process is issued, he may remain present either in person or through a counsel or agent with a view to be informed of what is going on. It was held that one of the objects behind the provisions of Section 202 of the Code is to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint but that is not the stage where defence of an accused can be gone into, stating: "...An enquiry under Section 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry. It is true that there is no direct evidence in the case before us that the two persons who were examined as court witnesses were so examined at the instance of Respondent 1 but from the fact that they were persons who were alleged to have been the associates of Respondent 1 in the first information report lodged by Panchanan Roy and who were alleged to have been arrested on the spot by some of the local people, they would not have been summoned by the Magistrate unless suggestion to that effect had been made by counsel appearing for Respondent 1. This inference is irresistible and we hold that on this ground, the enquiry made by the enquiring Magistrate is vitiated..." It was emphasized that the question as to whether a process has to be issued or not lies within the exclusive domain of the Magistrate so as to enable him to arrive at a satisfaction that there is sufficient ground for proceeding but not with a view to see as to whether there is sufficient ground for conviction, stating: "...No doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant." 17. In Mohd. Yousuf (supra), whereupon reliance has been placed by Mr. Jaspal Singh, this Court made a distinction between a pre-cognizance stage and post-cognizance stage. It was opined that an order under Sub-section (3) of Section 156 of the Code need not be passed when the Magistrate intends to take cognizance. Extensively referring to the decisions in Gopal Das Sindhi v. State of Assam [AIR 1961 SC 986 ] and Supdt. and Remembrancer of Legal Affairs v. Abani Kumar Banerjee [AIR 1950 Cal 437 ] as also other decisions, it was held that as in those cases cognizance had not been taken.18. Here, however, the learned Magistrate had taken cognizance. He had applied his mind. He refused to exercise his jurisdiction under Section 156 (3) of the Code. He arrived at a conclusion that the dispute is a private dispute in relation to an immovable property and, thus, police investigation is not necessary. It was only with that intent in view, he directed examination of the complainant and his witnesses so as to initiate and complete the procedure laid down under Chapter XV of the Code. | 1[ds]5. In our opinion, this order of the High Court is ex facie unsustainable in law by not giving an opportunity to the appellant herein to defend his case that the learned Judge violated all principles of natural justice as also the requirement of law of hearing a party before passing an adverse order.We may also notice that this Court in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar and another [AIR 1960 SC 1113 ],The general scheme of the aforesaid sections is quite clear. Section 200 says inter alia what a Magistrate taking cognisance of an offence on complaint shall do on receipt of such a complaint. Section 202 says that the Magistrate may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint; in other words, the scope of an inquiry under the section is limited to finding out the truth or falsehood of the complaint in order to determine the question of the issue of process. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial. Section 203, be it noted, consists of two parts: the first part indicates what are the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. Section 204 says that if in the opinion of the Magistrate there is sufficient ground for proceeding, he shall take steps for the issue of necessary process.The question again came up for consideration before this Court recently in Divine Retreat Centre v. State of Kerala & Ors. [AIR 2008 SC 1614 ], wherein this Court opined that the jurisdiction of the High Court even in terms of Section 482 of the Code is not unlimited. It was held that even in a case where no action is taken by the police, the informants remedy lies under Sections 190 and 200 of the Code.Similar view has been expressed by this Court in Sakiri Vasu v. State of Uttar Pradesh and Others [(2008) 2 SCC 409] .16. It is in the aforementioned backdrop the decision of this Court in Chandra Deo Singh (supra) may be considered. Therein, this Court opined that although an accused has no right to participate unless the process is issued, he may remain present either in person or through a counsel or agent with a view to be informed of what is going on. It was held that one of the objects behind the provisions of Section 202 of the Code is to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint but that is not the stage where defence of an accused can be gone into,enquiry under Section 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry. It is true that there is no direct evidence in the case before us that the two persons who were examined as court witnesses were so examined at the instance of Respondent 1 but from the fact that they were persons who were alleged to have been the associates of Respondent 1 in the first information report lodged by Panchanan Roy and who were alleged to have been arrested on the spot by some of the local people, they would not have been summoned by the Magistrate unless suggestion to that effect had been made by counsel appearing for Respondent 1. This inference is irresistible and we hold that on this ground, the enquiry made by the enquiring Magistrate iswas emphasized that the question as to whether a process has to be issued or not lies within the exclusive domain of the Magistrate so as to enable him to arrive at a satisfaction that there is sufficient ground for proceeding but not with a view to see as to whether there is sufficient ground for conviction,doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant.In Mohd. Yousuf (supra), whereupon reliance has been placed by Mr. Jaspal Singh, this Court made a distinction between a pre-cognizance stage and post-cognizance stage. It was opined that an order under Sub-section (3) of Section 156 of the Code need not be passed when the Magistrate intends to take cognizance. Extensively referring to the decisions in Gopal Das Sindhi v. State of Assam [AIR 1961 SC 986 ] and Supdt. and Remembrancer of Legal Affairs v. Abani Kumar Banerjee [AIR 1950 Cal 437 ] as also other decisions, it was held that as in those cases cognizance had not been taken.18. Here, however, the learned Magistrate had taken cognizance. He had applied his mind. He refused to exercise his jurisdiction under Section 156 (3) of the Code. He arrived at a conclusion that the dispute is a private dispute in relation to an immovable property and, thus, police investigation is not necessary. It was only with that intent in view, he directed examination of the complainant and his witnesses so as to initiate and complete the procedure laid down under Chapter XV of the Code. | 1 | 2,792 | 1,178 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
complaint. Section 202 says that the Magistrate may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint; in other words, the scope of an inquiry under the section is limited to finding out the truth or falsehood of the complaint in order to determine the question of the issue of process. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial. Section 203, be it noted, consists of two parts: the first part indicates what are the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. Section 204 says that if in the opinion of the Magistrate there is sufficient ground for proceeding, he shall take steps for the issue of necessary process." 15. The question again came up for consideration before this Court recently in Divine Retreat Centre v. State of Kerala & Ors. [AIR 2008 SC 1614 ], wherein this Court opined that the jurisdiction of the High Court even in terms of Section 482 of the Code is not unlimited. It was held that even in a case where no action is taken by the police, the informants remedy lies under Sections 190 and 200 of the Code.Similar view has been expressed by this Court in Sakiri Vasu v. State of Uttar Pradesh and Others [(2008) 2 SCC 409] .16. It is in the aforementioned backdrop the decision of this Court in Chandra Deo Singh (supra) may be considered. Therein, this Court opined that although an accused has no right to participate unless the process is issued, he may remain present either in person or through a counsel or agent with a view to be informed of what is going on. It was held that one of the objects behind the provisions of Section 202 of the Code is to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint but that is not the stage where defence of an accused can be gone into, stating: "...An enquiry under Section 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry. It is true that there is no direct evidence in the case before us that the two persons who were examined as court witnesses were so examined at the instance of Respondent 1 but from the fact that they were persons who were alleged to have been the associates of Respondent 1 in the first information report lodged by Panchanan Roy and who were alleged to have been arrested on the spot by some of the local people, they would not have been summoned by the Magistrate unless suggestion to that effect had been made by counsel appearing for Respondent 1. This inference is irresistible and we hold that on this ground, the enquiry made by the enquiring Magistrate is vitiated..." It was emphasized that the question as to whether a process has to be issued or not lies within the exclusive domain of the Magistrate so as to enable him to arrive at a satisfaction that there is sufficient ground for proceeding but not with a view to see as to whether there is sufficient ground for conviction, stating: "...No doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant." 17. In Mohd. Yousuf (supra), whereupon reliance has been placed by Mr. Jaspal Singh, this Court made a distinction between a pre-cognizance stage and post-cognizance stage. It was opined that an order under Sub-section (3) of Section 156 of the Code need not be passed when the Magistrate intends to take cognizance. Extensively referring to the decisions in Gopal Das Sindhi v. State of Assam [AIR 1961 SC 986 ] and Supdt. and Remembrancer of Legal Affairs v. Abani Kumar Banerjee [AIR 1950 Cal 437 ] as also other decisions, it was held that as in those cases cognizance had not been taken.18. Here, however, the learned Magistrate had taken cognizance. He had applied his mind. He refused to exercise his jurisdiction under Section 156 (3) of the Code. He arrived at a conclusion that the dispute is a private dispute in relation to an immovable property and, thus, police investigation is not necessary. It was only with that intent in view, he directed examination of the complainant and his witnesses so as to initiate and complete the procedure laid down under Chapter XV of the Code.
### Response:
1
### Explanation:
cognisance of an offence on complaint shall do on receipt of such a complaint. Section 202 says that the Magistrate may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint; in other words, the scope of an inquiry under the section is limited to finding out the truth or falsehood of the complaint in order to determine the question of the issue of process. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial. Section 203, be it noted, consists of two parts: the first part indicates what are the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. Section 204 says that if in the opinion of the Magistrate there is sufficient ground for proceeding, he shall take steps for the issue of necessary process.The question again came up for consideration before this Court recently in Divine Retreat Centre v. State of Kerala & Ors. [AIR 2008 SC 1614 ], wherein this Court opined that the jurisdiction of the High Court even in terms of Section 482 of the Code is not unlimited. It was held that even in a case where no action is taken by the police, the informants remedy lies under Sections 190 and 200 of the Code.Similar view has been expressed by this Court in Sakiri Vasu v. State of Uttar Pradesh and Others [(2008) 2 SCC 409] .16. It is in the aforementioned backdrop the decision of this Court in Chandra Deo Singh (supra) may be considered. Therein, this Court opined that although an accused has no right to participate unless the process is issued, he may remain present either in person or through a counsel or agent with a view to be informed of what is going on. It was held that one of the objects behind the provisions of Section 202 of the Code is to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint but that is not the stage where defence of an accused can be gone into,enquiry under Section 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry. It is true that there is no direct evidence in the case before us that the two persons who were examined as court witnesses were so examined at the instance of Respondent 1 but from the fact that they were persons who were alleged to have been the associates of Respondent 1 in the first information report lodged by Panchanan Roy and who were alleged to have been arrested on the spot by some of the local people, they would not have been summoned by the Magistrate unless suggestion to that effect had been made by counsel appearing for Respondent 1. This inference is irresistible and we hold that on this ground, the enquiry made by the enquiring Magistrate iswas emphasized that the question as to whether a process has to be issued or not lies within the exclusive domain of the Magistrate so as to enable him to arrive at a satisfaction that there is sufficient ground for proceeding but not with a view to see as to whether there is sufficient ground for conviction,doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant.In Mohd. Yousuf (supra), whereupon reliance has been placed by Mr. Jaspal Singh, this Court made a distinction between a pre-cognizance stage and post-cognizance stage. It was opined that an order under Sub-section (3) of Section 156 of the Code need not be passed when the Magistrate intends to take cognizance. Extensively referring to the decisions in Gopal Das Sindhi v. State of Assam [AIR 1961 SC 986 ] and Supdt. and Remembrancer of Legal Affairs v. Abani Kumar Banerjee [AIR 1950 Cal 437 ] as also other decisions, it was held that as in those cases cognizance had not been taken.18. Here, however, the learned Magistrate had taken cognizance. He had applied his mind. He refused to exercise his jurisdiction under Section 156 (3) of the Code. He arrived at a conclusion that the dispute is a private dispute in relation to an immovable property and, thus, police investigation is not necessary. It was only with that intent in view, he directed examination of the complainant and his witnesses so as to initiate and complete the procedure laid down under Chapter XV of the Code.
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Munja Praveen And Ors. Etc.Etc Vs. State Of Telangana And Ors. Etc.Etc | officers. The fall out vacancies if any due to relinquishment and non joining etc. of selected candidates shall be notified the next recruitment." 11. According to us, the High Court has totally misconstrued the above G.O.Ms. The portion of the G.O.Ms. quoted above clearly lays down that there shall be no waiting list and the selection shall be made equal to the number of posts notified. The purpose was that the vacancies arising due to people leaving the posts must be filled up by subsequent selection and not on the basis of a waiting list. It was clarified that after selection of the candidates and after issue of appointment orders, if the candidate fails to join within the stipulated period, that vacancy should be notified again. This portion of the G.O.Ms. admits of only one interpretation that after appointment order is issued and the person appointed does not join, then the vacancy cannot be filled up on the basis of the waiting list or by operating the merit list downwards. This is also clear from clause 9 of the G.O.Ms., which also clarifies that fall out vacancies due to relinquishment or non-joining of the selected candidates may be notified in the next recruitment. This obviously means that the clause will apply after issue of letter of appointment. There can be no relinquishment and non-joining unless an appointment letter is issued.12. The position before us is totally different. As pointed out earlier, some of the candidates, who got selected in more than one of the Corporations, were called for verification of their certificates. No appointment order had been issued till this stage. In the meantime, the State issued a clarification, as set out in the letter dated 01.06.2016, relevant portion of which reads as under: ".......I am to invite attention to the above subject and reference cited and inform the Government after careful examination of the matter hereby relaxes the provision, as a special case under the circumstances, of calling for the candidate on basis for verification of certificates as contained in their notifications as one time option and permits the TRANSCO, TS SPDCL and TS NPDCL to fill up the left over notified (advertised) vacancies of Assistant Engineers of their respective utility duty operation the merit list downwards for each category by following other rules prescribed in their respective notification...." 13. We see nothing wrong in this letter. In fact, this is in consonance with the G.O.Ms. dated 22.02.1997. The State and the Corporations have supported the case of the appellants. Their stand is that a large number of posts are lying vacant and if fresh selection have to be made, the filling up of the posts shall be delayed. We may also note that the original writ petitioners are obviously below the appellants in the merit list. They cannot be selected in this selection even if the merit list is operated downwards. They cannot be permitted to urge that persons, who are more meritorious than them should not be selected and fresh selection should be made. When the entire G.O.Ms. of 1997 is read as a whole, it is amply clear that it will have application only after appointment orders are issued and the posts not filled up after issue of appointment letters shall be notified in the next recruitment.14. Even otherwise also, we are of the view that this is the only logical way to interpret the G.O.Ms. The G.O.Ms. obviously has been issued, keeping in mind a single selection process. Here, we are dealing with a multiple selection process for different Corporations. The more brilliant candidates were selected in more than one of the Corporations. They obviously cannot join in more than one Corporation. Therefore, if the top four candidates have been selected in all four Corporations, they could only join one of the Corporations and twelve posts would remain vacant, if the interpretation given by the High Court is accepted. This would lead to a position where large number of vacancies would not be filled up.15. On a conjoint reading of clause 8 and 9 of the G.O.Ms. dated 22.02.1997, we are clearly of the view that this was not the purpose of the G.O.Ms. According to us, the G.O.Ms. would come into operation only after appointment letters were issued and, therefore, if a person, who is at number one position, goes to one of the Corporations and is given the appointment letter, he may not go to other three Corporations for verification of the certificate. That does not mean that the first post in all the Corporations should now lie vacant. 16. We may also add that the High Court did not note an earlier Division Bench judgment of the Andhra Pradesh High Court in the case of Government of A.P. & Others v. Ms. Bhagam Dorasanamma & Another (W.P. No.24944 of 2013), wherein the High Court had correctly interpreted the G.O.Ms. in the following manner: "19. The process of recruitment starts from the date of notifying the vacancies and attains finality with the act of issuing appointment order, offering the post to the selected candidate. In the absence of reaching the said finality of issuing appointment order in respect of subject vacancy, the question of either relinquishment or non-filling of the same does not arise. The interpretation sought to be given by the authorities for denying appointment to the applicant/1st respondent herein is contrary to the very spirit and object of service jurisprudence and we find total lack of justification on the part of the petitioner authorities and such action undoubtedly tantamounts to transgression of Part III of the Constitution of India in the event of testing the same on the touchstone of Article 16 of the Constitution of India." 17. Normally, the aforesaid judgment should have been followed, but no reference has been made to the same in the impugned judgments.18. We are also of the view that the Government was justified in issuing the letter dated 01.06.2016 in the larger public interest. | 1[ds]8. We have heard learned senior counsel/learned counsel for the parties. At the outset, it may be noted that TSNPDCL had issued advertisement for filling up 164 vacancies, TSGENCO had issued advertisement for filling up 856 vacancies, TSSPDCL had issued advertisement for 201 vacancies and TSTRANSCO issued an advertisement to fill up 206 posts. The examinations were conducted by these Corporations on 08.11.2015, 14.11.2015, 22.11.2015 and 29.11.2015 respectively. The results were declared almost simultaneously in which many of the candidates got selected in more than one Corporation. This led to a situation where the candidate selected in more than one Corporation exercised his or her prerogative to produce certificates for verification of qualification, caste etc. before one Corporation. Since the applications had been invited online, the certificates had to be produced after the written test was conducted.9. It appears that faced with a situation where many posts would have remained vacant, the Corporations asked for a clarification from the State Government, which resulted in the letter dated 01.06.2016.According to us, the High Court has totally misconstrued the above G.O.Ms. The portion of the G.O.Ms. quoted above clearly lays down that there shall be no waiting list and the selection shall be made equal to the number of posts notified. The purpose was that the vacancies arising due to people leaving the posts must be filled up by subsequent selection and not on the basis of a waiting list. It was clarified that after selection of the candidates and after issue of appointment orders, if the candidate fails to join within the stipulated period, that vacancy should be notified again. This portion of the G.O.Ms. admits of only one interpretation that after appointment order is issued and the person appointed does not join, then the vacancy cannot be filled up on the basis of the waiting list or by operating the merit list downwards. This is also clear from clause 9 of the G.O.Ms., which also clarifies that fall out vacancies due to relinquishment orof the selected candidates may be notified in the next recruitment. This obviously means that the clause will apply after issue of letter of appointment. There can be no relinquishment andunless an appointment letter is issued.12. The position before us is totally different. As pointed out earlier, some of the candidates, who got selected in more than one of the Corporations, were called for verification of their certificates. No appointment order had been issued till this stage. In the meantime, the State issued a clarification, as set out in the letter dated 01.06.2016, relevant portion of which reads asam to invite attention to the above subject and reference cited and inform the Government after careful examination of the matter hereby relaxes the provision, as a special case under the circumstances, of calling for the candidate on basis for verification of certificates as contained in their notifications as one time option and permits the TRANSCO, TS SPDCL and TS NPDCL to fill up the left over notified (advertised) vacancies of Assistant Engineers of their respective utility duty operation the merit list downwards for each category by following other rules prescribed in their respective notification....We see nothing wrong in this letter. In fact, this is in consonance with the G.O.Ms. dated 22.02.1997. The State and the Corporations have supported the case of the appellants. Their stand is that a large number of posts are lying vacant and if fresh selection have to be made, the filling up of the posts shall be delayed. We may also note that the original writ petitioners are obviously below the appellants in the merit list. They cannot be selected in this selection even if the merit list is operated downwards. They cannot be permitted to urge that persons, who are more meritorious than them should not be selected and fresh selection should be made. When the entire G.O.Ms. of 1997 is read as a whole, it is amply clear that it will have application only after appointment orders are issued and the posts not filled up after issue of appointment letters shall be notified in the next recruitment.14. Even otherwise also, we are of the view that this is the only logical way to interpret the G.O.Ms. The G.O.Ms. obviously has been issued, keeping in mind a single selection process. Here, we are dealing with a multiple selection process for different Corporations. The more brilliant candidates were selected in more than one of the Corporations. They obviously cannot join in more than one Corporation. Therefore, if the top four candidates have been selected in all four Corporations, they could only join one of the Corporations and twelve posts would remain vacant, if the interpretation given by the High Court is accepted. This would lead to a position where large number of vacancies would not be filled up.15. On a conjoint reading of clause 8 and 9 of the G.O.Ms. dated 22.02.1997, we are clearly of the view that this was not the purpose of the G.O.Ms. According to us, the G.O.Ms. would come into operation only after appointment letters were issued and, therefore, if a person, who is at number one position, goes to one of the Corporations and is given the appointment letter, he may not go to other three Corporations for verification of the certificate. That does not mean that the first post in all the Corporations should now lie vacant.Normally, the aforesaid judgment should have been followed, but no reference has been made to the same in the impugned judgments.18. We are also of the view that the Government was justified in issuing the letter dated 01.06.2016 in the larger public interest. | 1 | 2,354 | 1,041 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
officers. The fall out vacancies if any due to relinquishment and non joining etc. of selected candidates shall be notified the next recruitment." 11. According to us, the High Court has totally misconstrued the above G.O.Ms. The portion of the G.O.Ms. quoted above clearly lays down that there shall be no waiting list and the selection shall be made equal to the number of posts notified. The purpose was that the vacancies arising due to people leaving the posts must be filled up by subsequent selection and not on the basis of a waiting list. It was clarified that after selection of the candidates and after issue of appointment orders, if the candidate fails to join within the stipulated period, that vacancy should be notified again. This portion of the G.O.Ms. admits of only one interpretation that after appointment order is issued and the person appointed does not join, then the vacancy cannot be filled up on the basis of the waiting list or by operating the merit list downwards. This is also clear from clause 9 of the G.O.Ms., which also clarifies that fall out vacancies due to relinquishment or non-joining of the selected candidates may be notified in the next recruitment. This obviously means that the clause will apply after issue of letter of appointment. There can be no relinquishment and non-joining unless an appointment letter is issued.12. The position before us is totally different. As pointed out earlier, some of the candidates, who got selected in more than one of the Corporations, were called for verification of their certificates. No appointment order had been issued till this stage. In the meantime, the State issued a clarification, as set out in the letter dated 01.06.2016, relevant portion of which reads as under: ".......I am to invite attention to the above subject and reference cited and inform the Government after careful examination of the matter hereby relaxes the provision, as a special case under the circumstances, of calling for the candidate on basis for verification of certificates as contained in their notifications as one time option and permits the TRANSCO, TS SPDCL and TS NPDCL to fill up the left over notified (advertised) vacancies of Assistant Engineers of their respective utility duty operation the merit list downwards for each category by following other rules prescribed in their respective notification...." 13. We see nothing wrong in this letter. In fact, this is in consonance with the G.O.Ms. dated 22.02.1997. The State and the Corporations have supported the case of the appellants. Their stand is that a large number of posts are lying vacant and if fresh selection have to be made, the filling up of the posts shall be delayed. We may also note that the original writ petitioners are obviously below the appellants in the merit list. They cannot be selected in this selection even if the merit list is operated downwards. They cannot be permitted to urge that persons, who are more meritorious than them should not be selected and fresh selection should be made. When the entire G.O.Ms. of 1997 is read as a whole, it is amply clear that it will have application only after appointment orders are issued and the posts not filled up after issue of appointment letters shall be notified in the next recruitment.14. Even otherwise also, we are of the view that this is the only logical way to interpret the G.O.Ms. The G.O.Ms. obviously has been issued, keeping in mind a single selection process. Here, we are dealing with a multiple selection process for different Corporations. The more brilliant candidates were selected in more than one of the Corporations. They obviously cannot join in more than one Corporation. Therefore, if the top four candidates have been selected in all four Corporations, they could only join one of the Corporations and twelve posts would remain vacant, if the interpretation given by the High Court is accepted. This would lead to a position where large number of vacancies would not be filled up.15. On a conjoint reading of clause 8 and 9 of the G.O.Ms. dated 22.02.1997, we are clearly of the view that this was not the purpose of the G.O.Ms. According to us, the G.O.Ms. would come into operation only after appointment letters were issued and, therefore, if a person, who is at number one position, goes to one of the Corporations and is given the appointment letter, he may not go to other three Corporations for verification of the certificate. That does not mean that the first post in all the Corporations should now lie vacant. 16. We may also add that the High Court did not note an earlier Division Bench judgment of the Andhra Pradesh High Court in the case of Government of A.P. & Others v. Ms. Bhagam Dorasanamma & Another (W.P. No.24944 of 2013), wherein the High Court had correctly interpreted the G.O.Ms. in the following manner: "19. The process of recruitment starts from the date of notifying the vacancies and attains finality with the act of issuing appointment order, offering the post to the selected candidate. In the absence of reaching the said finality of issuing appointment order in respect of subject vacancy, the question of either relinquishment or non-filling of the same does not arise. The interpretation sought to be given by the authorities for denying appointment to the applicant/1st respondent herein is contrary to the very spirit and object of service jurisprudence and we find total lack of justification on the part of the petitioner authorities and such action undoubtedly tantamounts to transgression of Part III of the Constitution of India in the event of testing the same on the touchstone of Article 16 of the Constitution of India." 17. Normally, the aforesaid judgment should have been followed, but no reference has been made to the same in the impugned judgments.18. We are also of the view that the Government was justified in issuing the letter dated 01.06.2016 in the larger public interest.
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8. We have heard learned senior counsel/learned counsel for the parties. At the outset, it may be noted that TSNPDCL had issued advertisement for filling up 164 vacancies, TSGENCO had issued advertisement for filling up 856 vacancies, TSSPDCL had issued advertisement for 201 vacancies and TSTRANSCO issued an advertisement to fill up 206 posts. The examinations were conducted by these Corporations on 08.11.2015, 14.11.2015, 22.11.2015 and 29.11.2015 respectively. The results were declared almost simultaneously in which many of the candidates got selected in more than one Corporation. This led to a situation where the candidate selected in more than one Corporation exercised his or her prerogative to produce certificates for verification of qualification, caste etc. before one Corporation. Since the applications had been invited online, the certificates had to be produced after the written test was conducted.9. It appears that faced with a situation where many posts would have remained vacant, the Corporations asked for a clarification from the State Government, which resulted in the letter dated 01.06.2016.According to us, the High Court has totally misconstrued the above G.O.Ms. The portion of the G.O.Ms. quoted above clearly lays down that there shall be no waiting list and the selection shall be made equal to the number of posts notified. The purpose was that the vacancies arising due to people leaving the posts must be filled up by subsequent selection and not on the basis of a waiting list. It was clarified that after selection of the candidates and after issue of appointment orders, if the candidate fails to join within the stipulated period, that vacancy should be notified again. This portion of the G.O.Ms. admits of only one interpretation that after appointment order is issued and the person appointed does not join, then the vacancy cannot be filled up on the basis of the waiting list or by operating the merit list downwards. This is also clear from clause 9 of the G.O.Ms., which also clarifies that fall out vacancies due to relinquishment orof the selected candidates may be notified in the next recruitment. This obviously means that the clause will apply after issue of letter of appointment. There can be no relinquishment andunless an appointment letter is issued.12. The position before us is totally different. As pointed out earlier, some of the candidates, who got selected in more than one of the Corporations, were called for verification of their certificates. No appointment order had been issued till this stage. In the meantime, the State issued a clarification, as set out in the letter dated 01.06.2016, relevant portion of which reads asam to invite attention to the above subject and reference cited and inform the Government after careful examination of the matter hereby relaxes the provision, as a special case under the circumstances, of calling for the candidate on basis for verification of certificates as contained in their notifications as one time option and permits the TRANSCO, TS SPDCL and TS NPDCL to fill up the left over notified (advertised) vacancies of Assistant Engineers of their respective utility duty operation the merit list downwards for each category by following other rules prescribed in their respective notification....We see nothing wrong in this letter. In fact, this is in consonance with the G.O.Ms. dated 22.02.1997. The State and the Corporations have supported the case of the appellants. Their stand is that a large number of posts are lying vacant and if fresh selection have to be made, the filling up of the posts shall be delayed. We may also note that the original writ petitioners are obviously below the appellants in the merit list. They cannot be selected in this selection even if the merit list is operated downwards. They cannot be permitted to urge that persons, who are more meritorious than them should not be selected and fresh selection should be made. When the entire G.O.Ms. of 1997 is read as a whole, it is amply clear that it will have application only after appointment orders are issued and the posts not filled up after issue of appointment letters shall be notified in the next recruitment.14. Even otherwise also, we are of the view that this is the only logical way to interpret the G.O.Ms. The G.O.Ms. obviously has been issued, keeping in mind a single selection process. Here, we are dealing with a multiple selection process for different Corporations. The more brilliant candidates were selected in more than one of the Corporations. They obviously cannot join in more than one Corporation. Therefore, if the top four candidates have been selected in all four Corporations, they could only join one of the Corporations and twelve posts would remain vacant, if the interpretation given by the High Court is accepted. This would lead to a position where large number of vacancies would not be filled up.15. On a conjoint reading of clause 8 and 9 of the G.O.Ms. dated 22.02.1997, we are clearly of the view that this was not the purpose of the G.O.Ms. According to us, the G.O.Ms. would come into operation only after appointment letters were issued and, therefore, if a person, who is at number one position, goes to one of the Corporations and is given the appointment letter, he may not go to other three Corporations for verification of the certificate. That does not mean that the first post in all the Corporations should now lie vacant.Normally, the aforesaid judgment should have been followed, but no reference has been made to the same in the impugned judgments.18. We are also of the view that the Government was justified in issuing the letter dated 01.06.2016 in the larger public interest.
|
R. K. Malhotra, I.T.O. Group Circle II (1), Ahmedabad Vs. Kastur Bhai Lalbhai (H.U.F.) | law would be information under section 147(b). While conceding this position Mr.B. Sen, the learned counsel, submitted that a note by the Audit Department that the I.T.O.s view of law that the assessee is entitled to deduct the municipal taxes is erroneous, would not amount to information especially when the I.T.O. was aware of the fact that the houses were self-occupied. The fact that the I.T.O. was aware of the fact that the houses were self-occupied and that he could have with diligence found that the assessee would not be entitled to the exemption will not preclude the officer from using the auditors note as fresh information. 6. This Court in Commissioner of Income-tax, Gujarat v. A. Raman and Co.(67 I.T.R. 11.), disagreed with the view taken by the High Court of Gujarat that the information in consequence of which proceedings of reassessment were intended to be started could have been gathered by the Income-tax Officer in charge of the assessment in the previous years from the disclosures made by the two Hindu undivided families and would not be information. This court held"Jurisdiction of the Income-tax Officer to reassess income arises if he has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment. That information, must, it is true, have come into the possession of the Income-tax Officer after the previous assessment, but even if the information be such that it could have been obtained during the previous assessment from an investigation of the materials on the record, or the facts disclosed thereby or from other enquiry or research into facts or law, but was not in fact obtained, the jurisdiction of the Income-tax Officer is not affected." The Court further observed that information means instruction or knowledge derived from an external source. But the words "external source" cannot be construed as implying that the source must be outside the record. The information may be gathered from the assessment record itself. 7. The plea of the learned counsel that the audit report is not information remains to be considered. A few decisions of the High Court on this point may now be referred to. In Commissioner of Income-tax, Delhi v. H. H. Smt. Chand Kanwarji(84 I.T.R. 584.), the Delhi High Court held that the scrutiny note of the Revenue Audit and the letter of the Inspecting Assistant Commissioner constituted information within the meaning of section 147(b) from an "external source" and the assessments were, therefore, valid. The Income-tax Officer treated the income derived by way of interest from bank deposits as "earned income" and accepted the assessees claim of expenditure on the salary paid to her daughter-in-law. Subsequently, the revenue audit staff working under the Comptroller and Auditor-General of India, while scrutinising these assessments, brought to the notice of the department that the Income-tax Officer had wrongly treated the "interest income" as "business income" and also that the Income-tax Officer had wrongly allowed the assessees claim with regard to the salary paid to her daughter-in-law. The Income-tax Officer acted upon this note and reopened the original assessment. A Bench of the Delhi High Court relying on the reasoning of this Court in 72 I.T.R. 376 that the opinion expressed by the Central Board of Revenue in appeal under the Estate Duty Act would be "information held that the note of the revenue audit under the Comptroller and Auditor-General of India would be information. The same view was expressed in Commissioner of Income-tax v. Kelukutty(85 I.T.R. 102.) by the Kerala High Court. Mathew J. speaking for the court held that the note put up by the Audit to the effect that the assessment ought to have been made on the reconstituted firm for the entire income of the two periods and therefore the Income-tax Officer committed an error, was instruction or knowledge derived from an external source and would constitute information. In Vashist Bhargava v. Income-tax Officer, Salary Circle, New Delhi(99 I.T.R. 148.), a Bench of the Delhi High Court held that when subsequent to the assessment the Ministry of Law and the Revenue Audit pointed out that as a question of fact the payment of interest by the petitioner was made to his own account in the Provident Fund and as a question of law the money so paid did not vest in the Government but continued to belong to the petitioner, and therefore, the income of the petitioner had escaped assessment, it would be information available to the Income-tax Officer.We feel that the view of the Delhi High Court in 84 I.T.R. 584 and 99 I.T.R. 148 and that of the Kerala High Court in 85 I.T.R. 102 is correct. Ample support is derived for that view from the law laid down by t his Court in Commissioner of Income-tax, Gujarat, v. A. Raman and Co.(67 I.T.R. 11.), where it was held that the expression information in the context would mean instruction or knowledge derived from an external source concerning fact or particulars or as to law relating to a matter bearing on the assessment. It is not disputed that the decisions of courts of law and Income-tax Appellate Tribunal would be information of law. This Court, as already pointed out in 72 I.T.R. 376 has held that the opinion of the Central Board of Revenue as regard the valuation of securities for the purpose of Estate Duty would be information. 8. The Gujarat High Court was correct in its view that it would be information of law if it is stated by a person, body or authority competent and authorised to pronounce upon the law and is invested with authority to do so. In applying this principle the Court erred in holding that Audit department is not an authority competent and authorised to declare the correct state of law or to pronounce upon it. The Audit Department is the proper machinery to scrutinise the assessments of the Income-tax Officer and point out the errors, if any, in law. 9. | 1[ds]The fact that the I.T.O. was aware of the fact that the houses were self-occupied and that he could have with diligence found that the assessee would not be entitled to the exemption will not preclude the officer from using the auditors note as fresh informationThe plea of the learned counsel that the audit report is not information remains to be considered. A few decisions of the High Court on this point may now be referred to. In Commissioner of Income-tax, Delhi v. H. H. Smt. Chand Kanwarji(84 I.T.R. 584.), the Delhi High Court held that the scrutiny note of the Revenue Audit and the letter of the Inspecting Assistant Commissioner constituted information within the meaning of section 147(b) from an "external source" and the assessments were, therefore, valid. The Income-tax Officer treated the income derived by way of interest from bank deposits as "earned income" and accepted the assessees claim of expenditure on the salary paid to her daughter-in-law. Subsequently, the revenue audit staff working under the Comptroller and Auditor-General of India, while scrutinising these assessments, brought to the notice of the department that the Income-tax Officer had wrongly treated the "interest income" as "business income" and also that the Income-tax Officer had wrongly allowed the assessees claim with regard to the salary paid to her daughter-in-law. The Income-tax Officer acted upon this note and reopened the original assessment. A Bench of the Delhi High Court relying on the reasoning of this Court in 72 I.T.R. 376 that the opinion expressed by the Central Board of Revenue in appeal under the Estate Duty Act would be "information held that the note of the revenue audit under the Comptroller and Auditor-General of India would be information. The same view was expressed in Commissioner of Income-tax v. Kelukutty(85 I.T.R. 102.) by the Kerala High Court. Mathew J. speaking for the court held that the note put up by the Audit to the effect that the assessment ought to have been made on the reconstituted firm for the entire income of the two periods and therefore the Income-tax Officer committed an error, was instruction or knowledge derived from an external source and would constitute information. In Vashist Bhargava v. Income-tax Officer, Salary Circle, New Delhi(99 I.T.R. 148.), a Bench of the Delhi High Court held that when subsequent to the assessment the Ministry of Law and the Revenue Audit pointed out that as a question of fact the payment of interest by the petitioner was made to his own account in the Provident Fund and as a question of law the money so paid did not vest in the Government but continued to belong to the petitioner, and therefore, the income of the petitioner had escaped assessment, it would be information available to the Income-tax Officer.We feel that the view of the Delhi High Court in 84 I.T.R. 584 and 99 I.T.R. 148 and that of the Kerala High Court in 85 I.T.R. 102 is correct. Ample support is derived for that view from the law laid down by t his Court in Commissioner of Income-tax, Gujarat, v. A. Raman and Co.(67 I.T.R. 11.), where it was held that the expression information in the context would mean instruction or knowledge derived from an external source concerning fact or particulars or as to law relating to a matter bearing on the assessment. It is not disputed that the decisions of courts of law and Income-tax Appellate Tribunal would be information of law. This Court, as already pointed out in 72 I.T.R. 376 has held that the opinion of the Central Board of Revenue as regard the valuation of securities for the purpose of Estate Duty would be informationThe Gujarat High Court was correct in its view that it would be information of law if it is stated by a person, body or authority competent and authorised to pronounce upon the law and is invested with authority to do so. In applying this principle the Court erred in holding that Audit department is not an authority competent and authorised to declare the correct state of law or to pronounce upon it. The Audit Department is the proper machinery to scrutinise the assessments of the Income-tax Officer and point out the errors, if any, in law. | 1 | 2,785 | 790 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
law would be information under section 147(b). While conceding this position Mr.B. Sen, the learned counsel, submitted that a note by the Audit Department that the I.T.O.s view of law that the assessee is entitled to deduct the municipal taxes is erroneous, would not amount to information especially when the I.T.O. was aware of the fact that the houses were self-occupied. The fact that the I.T.O. was aware of the fact that the houses were self-occupied and that he could have with diligence found that the assessee would not be entitled to the exemption will not preclude the officer from using the auditors note as fresh information. 6. This Court in Commissioner of Income-tax, Gujarat v. A. Raman and Co.(67 I.T.R. 11.), disagreed with the view taken by the High Court of Gujarat that the information in consequence of which proceedings of reassessment were intended to be started could have been gathered by the Income-tax Officer in charge of the assessment in the previous years from the disclosures made by the two Hindu undivided families and would not be information. This court held"Jurisdiction of the Income-tax Officer to reassess income arises if he has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment. That information, must, it is true, have come into the possession of the Income-tax Officer after the previous assessment, but even if the information be such that it could have been obtained during the previous assessment from an investigation of the materials on the record, or the facts disclosed thereby or from other enquiry or research into facts or law, but was not in fact obtained, the jurisdiction of the Income-tax Officer is not affected." The Court further observed that information means instruction or knowledge derived from an external source. But the words "external source" cannot be construed as implying that the source must be outside the record. The information may be gathered from the assessment record itself. 7. The plea of the learned counsel that the audit report is not information remains to be considered. A few decisions of the High Court on this point may now be referred to. In Commissioner of Income-tax, Delhi v. H. H. Smt. Chand Kanwarji(84 I.T.R. 584.), the Delhi High Court held that the scrutiny note of the Revenue Audit and the letter of the Inspecting Assistant Commissioner constituted information within the meaning of section 147(b) from an "external source" and the assessments were, therefore, valid. The Income-tax Officer treated the income derived by way of interest from bank deposits as "earned income" and accepted the assessees claim of expenditure on the salary paid to her daughter-in-law. Subsequently, the revenue audit staff working under the Comptroller and Auditor-General of India, while scrutinising these assessments, brought to the notice of the department that the Income-tax Officer had wrongly treated the "interest income" as "business income" and also that the Income-tax Officer had wrongly allowed the assessees claim with regard to the salary paid to her daughter-in-law. The Income-tax Officer acted upon this note and reopened the original assessment. A Bench of the Delhi High Court relying on the reasoning of this Court in 72 I.T.R. 376 that the opinion expressed by the Central Board of Revenue in appeal under the Estate Duty Act would be "information held that the note of the revenue audit under the Comptroller and Auditor-General of India would be information. The same view was expressed in Commissioner of Income-tax v. Kelukutty(85 I.T.R. 102.) by the Kerala High Court. Mathew J. speaking for the court held that the note put up by the Audit to the effect that the assessment ought to have been made on the reconstituted firm for the entire income of the two periods and therefore the Income-tax Officer committed an error, was instruction or knowledge derived from an external source and would constitute information. In Vashist Bhargava v. Income-tax Officer, Salary Circle, New Delhi(99 I.T.R. 148.), a Bench of the Delhi High Court held that when subsequent to the assessment the Ministry of Law and the Revenue Audit pointed out that as a question of fact the payment of interest by the petitioner was made to his own account in the Provident Fund and as a question of law the money so paid did not vest in the Government but continued to belong to the petitioner, and therefore, the income of the petitioner had escaped assessment, it would be information available to the Income-tax Officer.We feel that the view of the Delhi High Court in 84 I.T.R. 584 and 99 I.T.R. 148 and that of the Kerala High Court in 85 I.T.R. 102 is correct. Ample support is derived for that view from the law laid down by t his Court in Commissioner of Income-tax, Gujarat, v. A. Raman and Co.(67 I.T.R. 11.), where it was held that the expression information in the context would mean instruction or knowledge derived from an external source concerning fact or particulars or as to law relating to a matter bearing on the assessment. It is not disputed that the decisions of courts of law and Income-tax Appellate Tribunal would be information of law. This Court, as already pointed out in 72 I.T.R. 376 has held that the opinion of the Central Board of Revenue as regard the valuation of securities for the purpose of Estate Duty would be information. 8. The Gujarat High Court was correct in its view that it would be information of law if it is stated by a person, body or authority competent and authorised to pronounce upon the law and is invested with authority to do so. In applying this principle the Court erred in holding that Audit department is not an authority competent and authorised to declare the correct state of law or to pronounce upon it. The Audit Department is the proper machinery to scrutinise the assessments of the Income-tax Officer and point out the errors, if any, in law. 9.
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The fact that the I.T.O. was aware of the fact that the houses were self-occupied and that he could have with diligence found that the assessee would not be entitled to the exemption will not preclude the officer from using the auditors note as fresh informationThe plea of the learned counsel that the audit report is not information remains to be considered. A few decisions of the High Court on this point may now be referred to. In Commissioner of Income-tax, Delhi v. H. H. Smt. Chand Kanwarji(84 I.T.R. 584.), the Delhi High Court held that the scrutiny note of the Revenue Audit and the letter of the Inspecting Assistant Commissioner constituted information within the meaning of section 147(b) from an "external source" and the assessments were, therefore, valid. The Income-tax Officer treated the income derived by way of interest from bank deposits as "earned income" and accepted the assessees claim of expenditure on the salary paid to her daughter-in-law. Subsequently, the revenue audit staff working under the Comptroller and Auditor-General of India, while scrutinising these assessments, brought to the notice of the department that the Income-tax Officer had wrongly treated the "interest income" as "business income" and also that the Income-tax Officer had wrongly allowed the assessees claim with regard to the salary paid to her daughter-in-law. The Income-tax Officer acted upon this note and reopened the original assessment. A Bench of the Delhi High Court relying on the reasoning of this Court in 72 I.T.R. 376 that the opinion expressed by the Central Board of Revenue in appeal under the Estate Duty Act would be "information held that the note of the revenue audit under the Comptroller and Auditor-General of India would be information. The same view was expressed in Commissioner of Income-tax v. Kelukutty(85 I.T.R. 102.) by the Kerala High Court. Mathew J. speaking for the court held that the note put up by the Audit to the effect that the assessment ought to have been made on the reconstituted firm for the entire income of the two periods and therefore the Income-tax Officer committed an error, was instruction or knowledge derived from an external source and would constitute information. In Vashist Bhargava v. Income-tax Officer, Salary Circle, New Delhi(99 I.T.R. 148.), a Bench of the Delhi High Court held that when subsequent to the assessment the Ministry of Law and the Revenue Audit pointed out that as a question of fact the payment of interest by the petitioner was made to his own account in the Provident Fund and as a question of law the money so paid did not vest in the Government but continued to belong to the petitioner, and therefore, the income of the petitioner had escaped assessment, it would be information available to the Income-tax Officer.We feel that the view of the Delhi High Court in 84 I.T.R. 584 and 99 I.T.R. 148 and that of the Kerala High Court in 85 I.T.R. 102 is correct. Ample support is derived for that view from the law laid down by t his Court in Commissioner of Income-tax, Gujarat, v. A. Raman and Co.(67 I.T.R. 11.), where it was held that the expression information in the context would mean instruction or knowledge derived from an external source concerning fact or particulars or as to law relating to a matter bearing on the assessment. It is not disputed that the decisions of courts of law and Income-tax Appellate Tribunal would be information of law. This Court, as already pointed out in 72 I.T.R. 376 has held that the opinion of the Central Board of Revenue as regard the valuation of securities for the purpose of Estate Duty would be informationThe Gujarat High Court was correct in its view that it would be information of law if it is stated by a person, body or authority competent and authorised to pronounce upon the law and is invested with authority to do so. In applying this principle the Court erred in holding that Audit department is not an authority competent and authorised to declare the correct state of law or to pronounce upon it. The Audit Department is the proper machinery to scrutinise the assessments of the Income-tax Officer and point out the errors, if any, in law.
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