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indlaw updates
Judgments
Tarakanath Kar vs Lipika Kar
[SUPREME COURT OF INDIA, 07 May 2008]
CrPC, 1973, s. 125 - SDJM dismissed application u/s. 125 filed by Applicant-Respondent holding that Chandana is the legally married wife of Appellant and Respondent is not legally married of the appellant - Single Judge set aside the order and given certain directions in revision for initiation of departmental proceedings- Application to clarify the order dismissed - Appeal against - Held, direction is beyond the scope of revisional jurisdiction under the Code - High Court was clearly in error in directing initiation , while dealing with an application for revision in the matter relating to s. 125 - Appeal partly allowed.
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Lachhman Singh (Deceased) Through Legal Representatives and Others vs Hazara Singh (Deceased) Through Legal Representatives and Others
[SUPREME COURT OF INDIA, 06 May 2008]
What would be the period of limitation in a suit for redemption of mortgage in the factual matrix? - Held, High Court was wrong in holding that the onus to prove that the suit was beyond the period of limitation was on the defendants - Limitation is a question of jurisdiction - S. 3 of the Limitation Act puts an embargo on the court to entertain a suit if it is found to be barred by limitation - No order was passed in application for adduction of additional evidence - Remitted the matter back to the High Court directing it to take the additional evidence on record either allowing the parties to adduce evidence before it or to prove the said documents by the trial judge in terms of O. 41 r. 28 - Appeal partly allowed.
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National Insurance Company Limited vs Yellamma and Another
[SUPREME COURT OF INDIA, 06 May 2008]
Motor Vehicles Act, 1988, s. 166 - Award for a sum of Rs.43, 000/- was made by tribunal - High Court enhanced the amount of compensation to a sum of Rs.1, 50, 000/- - Appeal against by Insurance Company - Held, a contract of insurance like any other contract, is a contract between the insured and the insurer - Amount of premium is required to be paid as a consideration for arriving at a concluded contract - If the insurer insists that a cheque should be issued only by the insured and not by a third party, no exception thereto can be taken - Fact remains that the cheque was not encashed - No privity of contract came into being between the appellant and the second respondent and as such the question of enforcing the purported contract of insurance did not arise - Directed that the awarded amount be paid by the appellant to the first respondent with liberty to it to recover the same from the second respondent - Appeal partly allowed.
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Sudhir Kumar Rana vs Surinder Singh and Others
[SUPREME COURT OF INDIA, 06 May 2008]
Motor Vehicles Act, 1988, s. 166 - Tribunal opined that as the appellant did not possess a driving licence, he must be held to have contributed to the accident found to be entitled to a sum of Rs. 12, 000/- only - Whether the appellant can be said to have guilty of contributory negligence? - Held, appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently - If he was not driving rashly and negligently which contributed to the accident, fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence - Appeal allowed.
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Lalit Kumar Sharma and Another vs State of Uttar Pradesh and Another
[SUPREME COURT OF INDIA, 06 May 2008]
Negotiable Instruments Act, 1881, s. 138 - Application for setting aside the order summoning appellants dismissed - Appeal against - Held, second cheque was issued in terms of the compromise - It did not create a new liability - As the compromise did not fructify, the same cannot be said to have been issued towards payment of debt - There was only one transaction between Directors of the Company and the complainant and they have already been punished - Question of entertaining the second complaint did not arise - Appeal allowed.
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Commissioner of Income Tax, Thiruvanathapuram vs Joseph Valakuzhy
[SUPREME COURT OF INDIA, 06 May 2008]
Income Tax Act, 1961, s. 260 - Assessee claming benefit of carry forward of Rs.39, 43, 830/- as amortization expenses - Held, r. 9A provides for deduction of expenditure incurred on production of feature films - R. 9A would appropriately be applicable to the present case, as the respondent is doing the business of producing feature films - Deduction for expenditure incurred on production of feature films is appropriately governed by r. 9A - If a film is not released for exhibition on a commercial basis at least 180 days before the end of such previous year, the cost of production of the film insofar as it does not exceed the amount realized by the film producer by exhibiting the film on a commercial basis, is to be allowed as a deduction in computing the profits and gains of such previous year and the balance, if any, is to be carried forward to the next following previous year and allowed as a deduction in that year - Appeal dismissed.
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Inspector Hem Chander, Delhi vs (1) Government of Nct of Delhi Through Commissioner of Police; (2) Special Commissioner of Police/Vigilance, Through Commissioner of Police; (3) Additional Deputy Commissioner of Police, Economic Offences Wing, Crime Branch, Through Commissioner of Police, New Delhi
[CENTRAL ADMINISTRATIVE TRIBUNAL, 06 May 2008]
Administrative Tribunals Act, 1985, s. 19 - Application for quashing of summary of allegations - Held, correctness of the charges made in the summary of allegation cannot be gone into by a judicial forum at its very threshold - Where appeal is filed even on one ground, it would always be open for the State to challenge the judgment on all counts - If the findings of trial court, by virtue of which alone the applicant is being departmentally tried, are set aside, the applicant would, by that time, lose immensely in his service graph, which is not equitable - Departmental proceedings stayed against the applicant till appeal preferred by the State is decided - Application disposed of.
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Kuldeep Kumar, Delhi vs (1) Government of Nct of Delhi Through Chief Secretary; (2) Commissioner of Police, Delhi; (3) Joint Commissioner of Police (Crime), Police Headquarters, New Delhi
[CENTRAL ADMINISTRATIVE TRIBUNAL, 06 May 2008]
Whether the Tribunal can judicially review, by evaluation of the role of a Police Officer for grant of out of turn promotion, by comparing the same with another officer similarly placed and if so, to what extent? - Held, evidence leads to an inference that the role played by the applicant and another officer was the same - In Nasib Singh & Another v Union of India & Others, Tribunal held it cannot be said that even on the ground of discrimination or arbitrariness the question of out of turn promotion cannot be dealt with and scope of judicial review would be limited only to find out discrimination which may be writ large on the face of it; if in a given case, if it is stated by the respondents that the case of a person for out of turn promotion is not comparable with that of a person demanding such reward of out of turn promotion, it will not be permissible for the Court to embark upon and enter into the controversy and to return a finding of its own, unless reasons making out a distinction may be totally perverse or absurd on the very face of it - Impugned orders have been passed by Deputy Commissioner of Police and Joint Commissioner of Police, whereas, the competent authority to pass the same is the Commissioner of Police, therefore matter may be re-considered by the Commissioner of Police only - Application disposed of.
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Commissioner of Trade Tax, Uttar Pradesh vs Associated Distributors Limited
[SUPREME COURT OF INDIA, 05 May 2008]
UP Sales Tax Act - Rate of tax applicable on the sales of Bubble-gum - Held, High Court came to the specific finding that the Bubble-gum cannot be treated as a sweetmeat but it is certainly an item of confectionery but gave no reasons for its finding - Bubble-gum can not be considered as mithai in the State of Uttar Pradesh is taxable as an unclassified good - Appeals allowed.
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Union of India vs Prabhakaran Vijaya Kumar and Others
[SUPREME COURT OF INDIA, 05 May 2008]
Railways Act - Railway Claims - Claim petition by the husband, mother and minor son of deceased who died on 23.5.1996 in a train accident disallowed by tribunal - Compensation of Rs. 2 lacs with interest @ 12% from the date of the petition till the date of payment was granted by High Court - Appeal against - Held, s. 124A lays down strict liability or no fault liability in case of railway accidents - If a case comes within the purview of s. 124A it is wholly irrelevant as to who was at fault - Plea that there was no fault on the part of the Railways, or that there was contributory negligence, is based on a total misconception and hence has to be rejected - Appeal dismissed.
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Ashok Kumar Chaudhary and Others vs State of Bihar
[SUPREME COURT OF INDIA, 05 May 2008]
Indian Penal Code, 1860, ss. 324 and 307 r/w 34 - Appeal against conviction and sentence - Held, it will be erroneous to lay down as a rule of universal application that non examination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise credit-worthy, cannot be relied upon unless corroborated by public witnesses - Merely because a witness happens to be a relative of the victim of the crime, he/she cannot be characterized as an "interested" witness - Mere delay in lodging the first information report is not by itself fatal to the case of the prosecution - It is a relevant factor of which the Court is obliged to take notice and examine whether any explanation for the delay has been offered and if offered, whether it is satisfactory or not - Nothing substantial has been shown to persuade us to interfere with the conviction of the appellants - Sentences awarded to the appellants reduced - Appeal partly allowed.
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Madhuban vs State of Uttar Pradesh
[SUPREME COURT OF INDIA, 05 May 2008]
Indian Penal Code, ss. 302, 323 and 394 r/w 34 - Appeal against conviction and sentence - Held, appellant was unable to argue the case due to swelling on vocal cord infected with influenza - An affidavit in support of such assertion was also filed in the High Court and it is very much there in the record and proceedings - Set aside the order passed by the High Court and remit the matter to the High Court for fresh disposal in accordance with law - Order accordingly.
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M.V. Janardhan Reddy vs Vijaya Bank and Another
[SUPREME COURT OF INDIA, 02 May 2008]
Whether action of Recovery Officer in confirming sale was contrary to law when Company proceedings were pending before Company Judge and Company was ordered to be wound up and when Official Liquidator appointed to take charge of the assets of the Company was not taken in confidence and when he was not associated with the auction of assets and properties of the Company in liquidation? - Held, in view of condition imposed by the Company Court, Recovery Officer did not have the power to confirm sale - An order passed by an officer having no authority of law has no effect; it neither creates any right in favour of a party for whom such order is made nor imposes any obligation on the opposite party against whom it was passed - If the Recovery Officer could not have confirmed the sale, obviously all actions taken in pursuance of confirmation of sale, such as, issuance of sale certificate, registration of documents, etc., would be of no consequence - Since the Company was in liquidation and Official Liquidator was in charge of the assets of the Company, he ought to have been associated with the auction proceedings, which was not done thus the auction sale was liable to be set aside - Appeal partly allowed.
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(1) Harendra Sarkar; (2) Kailash Gour and Others vs State of Assam
[SUPREME COURT OF INDIA, 02 May 2008]
Murder - Appeal against conviction and sentence - Held, in view of the difference of opinion matter referred to larger bench.
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(1) Krishna; (2) Shrawan; (3) Parvati vs (1) Bhagwan Natthu Kale, Legal Representatives, Santosh, Vilas, Leelabai, Ku.Manju, Sheela, Sharda Sdatpute, Varsha; (2) Vithobaji, Legal Representatives, Dhananjay, Purushottam, Rekha, Avinash, Sonu, Ashwini, Meera, Kanta
[BOMBAY HIGH COURT, 02 May 2008]
Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 - Whether obtaining permission u/s 89 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 for purchase of agricultural land is prerequisite condition for passing a decree of specific performance of contract? - Held, Tenancy Law does not prohibit from entering into a contract of sale - If the law does not prohibit entering into the contract then there is really no reason not to enforce such contract - Granting of decree does not mean that the sale-deed will necessarily be executed - Even if a decree would have been passed, that would have been and could have been executed on production of certificate or permission only - If the plaintiff is ready to have a decree for specific performance and wait for such permission being granted or refused, there is no law which comes in the way - Appeal allowed.
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Man Singh vs State of Haryana and Others
[SUPREME COURT OF INDIA, 01 May 2008]
Whether orders of appellate and revisional authorities confirming order of the disciplinary authority imposing punishment upon the appellant for exhibiting slackness in the discharge of duties but at the same time releasing appellant's co-accused, was unfair, arbitrary, unreasonable, unjustified and also against the doctrine of equality - Held, any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have made it Orders of the appellate and revisional authorities confirming the said order are unfair, arbitrary, unreasonable, unjustified and also against the doctrine of equality - Appellant deserves to be treated equally in the matter of departmental punishment initiated against him for the acts of omissions and commissions the driver of the vehicle - Appeal allowed.
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Jagdish and Others vs State of Uttar Pradesh
[SUPREME COURT OF INDIA, 01 May 2008]
Appeal to challenge conviction and sentence - Appellants convicted for offences u/ss 304 Part-II/149 of IPC, 1860 and sentenced to undergo rigorous imprisonment for a period of ten years and further convicted u/ss 147 and 148 IPC, 1860 for which no separate sentence awarded - All appellants except appellant no.4 had remained in custody for 4 years whereas appellant no.4, aged 70 years had been in custody for 2 years - Held, ends of justice would be met in case the sentence of imprisonment awarded against the appellants is reduced to the period already undergone and each one of them is directed to pay fine of Rupees ten thousand - Appeal disposed of.
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Bharat Sanchar Nigam Limited vs Bharti Televentures Limited
[SUPREME COURT OF INDIA, 01 May 2008]
Telecom - Held, Tribunal considered only the undertaking by the respondent dated 25.12.2001 in the impugned judgment - However, the Tribunal failed to consider the undertaking by the respondent dated 24.12.2001 - Matter is remanded to the Tribunal to consider both the undertakings - Appeal allowed.
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K. Jayasekhar vs Secretary To Government Agri. and Coop. Department and Another
[SUPREME COURT OF INDIA, 01 May 2008]
Andhra Pradesh (Agricultural Produce and livestock) Market Service Rules 1969 - Plea that appellant belonged to Scheduled Castes and hence he is entitled to be considered from the 15% reservation as contained in r. 22(a) - Held, question of application of r. 6 r/w r. 22 of the general Rules has not been considered by the High Court - Matter remitted to High Court.
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Sudhir Kumar Bhalla vs Jagdish Chand, Etc
[SUPREME COURT OF INDIA, 01 May 2008]
Negotiable Instruments Act, 1881 - s. 138 - Whether order of High Court could be set aside on ground that the legal questions raised were not answered? - Held, Single Judge of HC has not addressed himself on the legal question raised before him by the appellant that the criminal liability of the appellant under the provisions of s. 138 of the NI Act, 1881 are attracted only on account of the dishonour of the cheques issued in discharge of liability or debt, but not on account of issuance of security cheques - Single Judge has also not given cogent, satisfactory and convincing reasons for disbelieving and discarding the pre-charge evidence of the appellant corroborated by the evidence of the expert opinion in regard to the interpolation in and fabrication of the cheques by adding one more figure '0' to make Rs.30, 000/- to Rs.3, 00, 000/- and similarly adding one more figure '0' to make Rs.40, 000/- to Rs.4, 00, 000/- - Judgments and orders of the HC cannot be sustained on the premise that the HC has not addressed itself on the above-said two legal questions raised by the appellant and, therefore, the impugned judgments and orders are set aside - Appeal disposed of.
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Ila Vipin Pandya vs Smita Ambalal Patel and Another
[SUPREME COURT OF INDIA, 01 May 2008]
Bombay High Court (Original Side) Rules, 1980 - rr. 267 and 268 - Appeal to challenge order wherein it was held that respondent no.1-caveator was entitled to have copy of Miscellaneous Application filed by respondent no.2-advocate representing appellant, against appellant for action to be taken for alleged perjury - Appellant had filed Testamentary Petition for issuance of Letters of Administration in respect of the estate of her late husband, in which respondent no.1 had filed a caveat and eventually the Testamentary Petition came to be converted into Testamentary Suit - Whether a caveator is entitled to have copy of miscellaneous application alleging perjury filed by the advocate of petitioner in testamentary petition which eventually got converted into Testamentary Suit? - Held, even if it is held that respondent no.1 was not a party to the matter, i.e., Miscellaneous Application No.1 of 2004, since she was a party to the suit out of which the Miscellaneous Application No.1 of 2004 emanated and as such the same could be treated as record of that suit, she was entitled to the certified copies - Mere grant of certified copies in favour of the respondent no.1 itself would not entitle her to take part in the proceeding under perjury application - Appeal dismissed.
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Bharat Glass Tube Limited vs Gopal Glass Works Limited
[SUPREME COURT OF INDIA, 01 May 2008]
Whether a design having been carved out of rollers purchased from German Company which could have been used on glass sheet, rexin or leather, when used for glass sheet was new or original design? - Held, design has been reproduced in the article like glass which is registered, its could have been registered with rexin or leather - For registration of a particular configuration or particular shape of thing which is sought to be reproduced on a particular article has to be applied - Design sought to be reproduced on a glass-sheet has been registered and there is no evidence to show that this design was registered earlier to be reproduced on glass in India or any other part of the country or in Germany or even for that matter in United Kingdom, therefore, it is for the first time registered in India which is new and original design which is to be reproduced on glass sheet - No evidence to show that German Company had manufactured this design in glass sheet or not; it is only a design downloaded from the website of the Patent office in U.K. and it is not known whether it was reproduced on glass-sheet in U.K. or not - Visual effect and/or appeal of a pattern embossed into glass sheets by use of embossing rollers could be different from the visual effect of the same pattern etched into glass sheets manually - Appeal dismissed.
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Mahant Dooj Das (Dead) Through Lr vs Udasin Panchayati Bara Akhara and Another
[SUPREME COURT OF INDIA, 01 May 2008]
Whether the land in suit would be covered and governed under the U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 so as to apply the provisions of s. 331 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 to oust the jurisdiction of the civil court? - Held, there is no evidence led by the defendants that the suit land had been declared as a demarcated area and the suit area being declared to be such has vested with the State government under s. 8 of the 1956 Act - Unless and until it is shown that the land in suit has been declared as a demarcated area or falls within the demarcated area, exercising the powers under s. 5, it cannot be said that it has been vested in the State by virtue of notification issued under s. 8; by notification, it is only the demarcated area under s. 5 which has been vested in the State, that does not necessarily means that the suit lands have been vested in the State - It is only after the area is declared as demarcated area, s. 8 will be attracted and the notification to that effect would be issued in regard to and in respect of such declared demarcated area to be vested in the State Government; unless the land is vested in the State Government, the provisions of s. 331 of the 1956 Act would have no application to oust the jurisdiction of the civil court - Appeal allowed.
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Guruswamy Nadar vs P.Lakshmi Ammal (D) Through Lrs. and Others
[SUPREME COURT OF INDIA, 01 May 2008]
Transfer of Property Act, 1888 - s.52 - Specific Relief Act, 1963 - s.19 - Appeal to challenge order dismissing appeal which was filed to challenge order decreeing suit for specific performance - Suit was filed on 3.5.1975 for specific performance of the agreement and the second sale took place on 5.5.1975 - What is the effect of the lis pendens on the subsequent sale of the same property by the owner to the second purchaser? - Whether the principle of lis pendens will be applicable or s. 19 of the Specific Relief Act will have overriding effect? - Held, suit was filed before the second sale of the property, therefore, the principle of lis pendens will govern and the second sale cannot have the overriding effect on the first sale - Appellant who is a subsequent purchaser of the same property, has purchased in good faith but the principle of lis pendens will certainly be applicable notwithstanding the fact that u/s. 19(b) of the Specific Relief Act his rights could be protected - Appeal dismissed.
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Eastern Equipment and Sales Limited vs Ing. Yash Kumar Khanna
[SUPREME COURT OF INDIA, 30 Apr 2008]
Code of Civil Procedure, 1908 - O.41, r.27 - Whether application for acceptance of additional evidence under O.41, r.27 of CPC, 1908 filed in pending appeal was rightly rejected by the Appellate Court as well as by the High Court? - Held, in order to decide the pending appeal in which the application under O.41, r.27 of CPC, 1908 was filed ought to have been taken by the appellate Court along with the application for acceptance of additional evidence under O.41, r.27 of CPC, 1908 - Without going into the merits, order is set aside of the HC as well as of the appellate Court rejecting the application under O.41, r.27 of CPC, 1908 - Appeal disposed of.
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