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Showing posts from March, 2015

Section 138 of the Negotiable Instruments Act - Cheque was issued by and on behalf of the firm - Notice issued about the dishonor of cheque - after completion of Trial - pending the case A2 died on 2-12-2006 - Trail court dismissed the complaint against the A1 firm and A2 as abated and after hearing the A 3 and A4 dismissed the case on merits - Whether Firm A1 too abated when it was represented by A3 and A4 other partners ? for the purpose of imposing fine of double the amount, the death of A2 does not abate the firm as other partners can continue the firm on the death of one of the partner as per law - Remanded the matter to decide the case on the point whether the firm dissolved or not with reference to the D-1 partnership deed already exhibited, from death of A-2 one of the partners and if not dissolved for nothing to abate to decide the liability of A-1 firm though not A-3 representing A-1 firm personally liable, to the liability of imposing fine against the firm in the event of the debt is proved legally enforceable - 2015 A.P.msklawreports

the Complainant is a merchant and doing cotton business, A-1 is cotton merchant, A-2 to A-4 are its partners .                                                      they used to purchase cotton from several persons like complainant on credi from 12.06.1998 onwards accused are maintaining khata with the complainant in the course of their business, that the said Khata is running and mutual As per the khata the accused has to pay an amount of Rs.4,89,655/- to the complainant as on 05.12.2000 and the complainant demanded the    accused several times to pay the said amount, that the accused gave cheque for Rs.4,76,552/- and the same was when presented returned  dishonoured.   The complainant issued a statutory legal notice and the accused got issued reply and did not pay the amount, for which the complainant presented t...
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question of jurisdiction = the principal Civil Court locating in Hyderabad cannot be a Court within the meaning of Section 2 (1) (e) of the aforesaid Act as no part of cause of action has arisen nor the respondents are having place of business within the territorial limit of this State. It would appear from said tripartite agreement that the same was executed and entered into at Bangalore. Works in terms of the contract is to be executed at Bangalore. Hence, performance of tripartite agreement has to be done in Bangalore. Nothing has happened in Hyderabad except the 2nd respondent is having his place of business at Hyderabad. It is settled position of law that by agreement of the parties jurisdiction cannot be conferred upon any Court which does not have under law. Admittedly, the agreement has been made and entered into at Bangalore, works which are to be performed in terms of bipartite agreement initially, now tripartite one at Bangalore, and performance and non-performance therefore, necessarily will take place at Bangalore. It is however argued that I can entertain this application by virtue of clause (b) of Section 20 of Code of Civil Procedure as one of the respondents carries on business at Hyderabad. This provision cannot be invoked having regard to approach of the application wherein seat of arbitration being Hyderabad is sought to be asserted, and no leave as required under clause (b) of Section 20 of C.P.C. has been asked for. In view of discussion, as above, no answer is called for as far as third question is concerned. In view of discussion above, I dismiss this application with liberty to file before appropriate Honble Chief Justice or designated Judge, as the case may be, of the High Court.-2015 A.P. MSK LAWREPORTS

The applicant is wholly owned subsidiary of Solentanche-Freyssinet Group, and is dealing in mechanically stabilized Reinforced Earth Retaining Walls/Precast Arch Structures, etc.   The 2nd respondent which was formerly known as Maytas Infra Limited was awarded a contract, dated 29th February, 2008, for construction of boundary walls, roads, drains and earth filling, by Bangalore Metro Rail Project at Bayappanhalli Depot, Bangalore.   Thereafter, on 28th March, 2008, it, having faced difficulties in completing works of the principal contract as per schedule, entered into a sub-contract with the applicant for the works of construction of reinforced earth retaining wall of the main contract on back to back basis.  Thereafter, tripartite agreement was executed on 3.6.2009 amongst the applicant on one hand and   the respondents 1 & 2 on the other hand.    By this tripartite agreement, it was agreed mutually that all t...
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Arbitration and Conciliation Act, 1996 two courts will have jurisdiction to deal with the matter; one is natural forum, which would have jurisdiction under Section 2 (1) (e) of the aforesaid Act, and another one within whose jurisdiction arbitration takes place. - 2015 S.C.(2012) MSKLAWREPORTS

       Section 2(1)(e) of the Arbitration Act, 1996 reads as under:    2. Definitions.(1) In this Part, unless the context otherwise requires     (a)-(d)      *       *       *    (e) Court means the Principal Civil Court of Original Jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such Principal Civil Court, or any Court of Small Causes; We are of the opinion, the term subject-matter of the arbitration cannot be confused with subject-matter of the suit.  The term subject-matter in  Section 2(1)(e) is confined to Part I. It has a reference and connection with the process of dispute resolution. Its purpose is to identi...
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whether the self same order, which has reached its finality can be challanged under writ jurisdiction ? According to us, it is not legally permissible, if it is done the writ court will unsettle a legally settled position.-2015 A.P. msklawreports

whether the self same order, which has reached its finality can be challanged under writ jurisdiction ?  According to  us, it is not legally permissible, if it is done the writ court will unsettle a legally settled position.  when appellate authority has  already decided the matter against the petitioner, the writ Court is debarred from doing so as the same binds the writ Court applying the  principle of res judicata, particularly, when the appellate authoritys orders  are not challenged in the writ jurisdiction.    -2015 A.P. msklawreports
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Expert Opinion - Vs- Positive Evidence "Finally we may point out that the expert admitted in his evidence that it was only by a chemical test that it could be definitely stated whether a particular writing was of a particular year or period. He also admitted that he applied no chemical tests in this case. So his opinion cannot on his own showing have that value which it might have had if he had applied a chemical test. Besides we may add that Osborn on "Questioned Documents" at p. 464 says even with respect to chemical tests that "the chemical tests to determine age also, as a rule, are a mere excuse to make a guess and furnish no reliable data upon which a definite opinion can be based". In these circumstances the mere opinion of the expert cannot override the positive evidence of the attesting witnesses in a case like this where there are no suspicious circumstances".-2015 S.C. (1963) MSKLAWREPORTS

Expert Opinion - Vs- Positive Evidence  "Finally we may point out that the expert admitted in his evidence that it was only by a chemical test that it could be definitely stated whether a particular writing was of a particular year or period.  He also admitted that he applied no chemical tests in this case.  So his opinion cannot on his own showing have that value which it might have had if he had applied a chemical test.  Besides we may add that Osborn on "Questioned Documents" at p. 464 says even with respect to chemical tests that "the chemical tests to determine age also, as a rule, are a mere excuse to make a guess and furnish no reliable data upon which a definite opinion can be based".  In these circumstances the mere opinion of the expert cannot override the positive evidence of the attesting witnesses in a case like this where there are no suspicious circumstances".-2015 S.C. (1963) MSKLAWREPORTS
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శ్రీ రామ నవమి శుభాకాంక్షలు

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  రామా  రావయ్యా మా ఒంటిమిట్టకు  మా ఆనంద భాష్పాలు తప్ప  గోదావరి లేదు నీ కాళ్ళు కడుగ  మా హృదయ పీటం తప్ప భద్రాది లేడు నీకు పీట వేయ  చిరు కానుకలు తప్ప  చింతాకు పతకం తేలేము  నీ నామా  సంకీర్తన తప్ప రామదాసు నగలు చేయించలేము  ఈ ఒంటి మిట్టనే నీ పంచవటి అనుకోని  మా హృదయ రాజ్యాన్ని నీ మహాసామ్రాజ్యం అనుకోని   రామా  రావయ్యా మా ఒంటిమిట్టకు  మీకు మీ కుటుంబానికి  శ్రీ రామ నవమి శుభాకాంక్షలు
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Accident Case - High court enhanced the compensation for Rs.5,35,000/- failed to consider the Medical Bills and other settled laws - Apex court enhanced the compensation to Rs.16,58,600/- under 7 heads with 9% interest and further said though all are equal share - the parents were alloted each one lakh and whereas the rest of their share amount was ordered to be distributed equally to the minor children taking into consideration of their education etc., - 2015 SC MSKLAWREPORTS

whether  the  appellants  are   entitled   for enhancement of compensation amount as prayed in these appeals?  On 27.11.2006, Jhabbu Verman, aged 35 years, was  on  his  way  back  from Tripuri to Garha (Jabalpur) on his motorcycle bearing registration  No.  MP- 20-Y-7669 and met with an accident when a truck bearing registration No. MP- 20-GA-2221 being driven by respondent No.1 rashly and  negligently  collided with the back of his motorcycle. As a result  of  the  same,  Jhabbu  Verman fell towards his right and the wheel of  the  vehicle  ran  over  his  hands which lead to severe damage to his left hand.  Due to the grievous  injuries caused in the said accident, he was immediately  taken  to  the  Mahakaushal College  and  Hospital  and  he  remained  under  medical   t...
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Specific Performance suit Decreed - time granted to deposit balance of sale consideration with in one month from the date of decree failing which the suit shall be deemed to have been dismissed - amount not deposited - time extended - Civil vacation - no deposit on the reopening day - deposit on the next day of re-opening with out obtaining permission for extention of time - without giving notice to the Jdr about the deposit of balance sale consideration - extention petition filed later - Trial court dismissed the E.P. as well as extention petition as the suit was dismissed automatically by efflux of time - High court remanded the case for fresh consideration - Apex court held that the trial rightly dismissed the petition and Execution petition and as such the question of remanding a case for fresh consideration does not arise due efflux of time , the suit was dismissed automatically as there was no any fresh order of extention on a petition filed with in time -2015 S.C. msklawreports

the suit was decreed  on  15.02.2007  and  the Plaintiff-Buyer was directed to deposit the balance  sale  consideration  of Rs.33,60,000/- by way of demand draft, in Court within one  month  from  the date of decree and the Defendant-Seller  was  directed  to  execute  regular sale deed in favour of the  Plaintiff-Buyer, within three  months  from  the date of decree. It was made clear by the Trial Court in the decree  that  if the balance amount of sale consideration is not deposited within  one  month from the date of decree, the suit shall be deemed to have been dismissed. The Plaintiff-Buyer did not deposit the said amount within  one  month as stipulated in the decree but he filed an  application  for  extension  of time for depositing the  amount  of  balance  sale  consideration  and  vide ...
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Economic Offences Special Judge Hyd - A.P. High court quashed the complaint - Apex court held that the Special Court is empowered to try the offences under the Companies Act alongwith other Acts by virtue of a notification issued by the erstwhile Government of Andhra Pradesh dated 13.3.1981 which empowers such special Courts to try offences under specified enactments such as The Companies Act, 1956, The Income-tax Act, 1961, The Wealth-tax Act, 1957 etc., which reads as follows:-"even if such cases include offences punishable under the Indian Penal Code, 1860 and any other enactments, if such offences form part of the same transaction." - Thus, even if a number of persons are accused of offences under a special enactment such as 'the Companies Act and as also the IPC' in respect of the same transaction or facts and even if some could not be tried under the special enactment, it is the special court alone which would have jurisdiction to try all the offences based on the same transaction to avoid multiplicity of proceedings.- We make it clear that in the present case all the accused are liable to be tried by the special court in respect of the offences under the IPC as well as the Companies Act as alleged in the complaint. Appeals are allowed in above terms. 2015 S.C. MSKLAWREPORTS

the High Court of Judicature of Andhra Pradesh at  Hyderabad  in exercise of powers under Section 482  of  the Code of Criminal Procedure (in short Cr.P.C.) quashed the proceedings in  CC No. 37 of 2008 on the file of the court of the Special  Judge  for  Economic Offences at Hyderabad insofar as the accused Nos. A4, A5,  A6,  A9  and  A10 are concerned. the  Special Court is empowered to try the offences under  the  Companies  Act  alongwith other Acts by virtue of a notification issued by  the  erstwhile  Government of Andhra Pradesh dated 13.3.1981 which empowers such special Courts to  try offences under specified enactments such as The  Companies  Act,  1956,  The Income-tax Act,  1961,  The  Wealth-tax  Act,  1957  etc.,  which  reads  as follows:- "even if such cases include  offences ...
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Karnataka Cinemas Regulation Act, 1994 - Rule 35(c) of the Karnataka Cinemas (Regulation) Rules, 1971 - to exhibit the films approved by the Films Division - No Board Constituted - State Govt. can issue orders for Compulsory Certificate from Films Division - Writ - single judge dismissed - Division Bench allowed the writ - again reversed the earlier order on reconsideration and held that "We have already held that the documentary Films referred to supra produced by third respondent are not approved by the State Government 'from time to time' under Section 12(1)(c) of the Act read with relevant Rules and the impugned order and notice in the writ petition are quashed. We also made an observation to constitute the Advisory Board by the State Government under Rule 8 of the Rules. Since this process may take some time, in the meanwhile, it would be just and proper for this Court to give direction to the Licensing Authorities in the Karnataka State to incorporate the terms and conditions in the licenses that would be issued in favour of the licensees stating that the films including documentary which are enumerated under Clauses (a) to (c) of Section 12 of the Act that are produced by third respondent shall be screened in the theatres of licensees on such terms and conditions that may be imposed upon them which are not objectionable to the State Government. Ordered accordingly." - Apex court held that A consideration of the various provisions contained in the Act and the Rules including those extracted above do not indicate the availability of the power to the State Governments to issue any such blanket directions. even the absence of such Board cannot clothe the State with the power to issue the impugned directions inasmuch as in that event the alternative mode of approval under Rule 17 has to be availed of. - So construed, we have no doubt that the initial order passed by the Division Bench allowing the Writ Appeal and setting aside the impugned notice was perfectly justified. The subsequent order passed on 18th November, 2006 virtually reverses the relief granted in the Writ Appeal and once again imposes the requirement on the appellant to exhibit documentary films produced by and procured from the Films Division only. In fact, the said requirement was directed to be made an express condition of the licence to be granted to theater owners including the appellant. We do not find any authority or sanction in any provisions of the Act/Rules to sustain the said later direction of the High Court. -However, as the order of the Division Bench clearly states that the impugned later direction is only during the interregnum i.e. valid till such time that the Advisory Board is constituted, there can be no doubt that if at present there is a Advisory Board functioning the said direction must cease to remain in force and consequently the conditions incorporated in the licence of the appellant to the said effect will have to be deleted. We order accordingly and further direct that if the Advisory Board is functioning as on date it will be open to all concerned including the appellant to seek approval under the provisions of Rules 18, 19 and 20 of the Rules of the documentary films it intends to exhibit. - 2015 S.C. MSK LAW REPORTS

challenging, inter alia, a communication dated 2nd  April,  2005  issued  by the Principal Secretary to Government of Karnataka, Department  of  Internal Administration and Transport, Bangalore to the 2nd respondent informing  the said respondent that theater owners  and  owners  of  M/s  PVR  Cinemas  are required to obtain compulsory certificates from  Films  Division  under  the Karnataka Cinemas Regulation Act, 1994  (hereinafter  referred  to  as  "the Act") and under Rule 35(c) of  the  Karnataka  Cinemas  (Regulation)  Rules, 1971 (hereinafter referred to as  "the  Rules")  framed  thereunder  and  to exhibit the films approved by the  Films  Division.   An  endorsement  dated 28th May, 2005 requiring the appellant  to  obtain  "Compulsory  Certificate...
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Sec.143 (1A) of the Income Tax Act - Constitutional Validity - High court and Division Bench held that the retrospective effect given to amendment would be arbitrary and unreasonable - Apex court set aside the same and held that Section 143 (1A) can only be invoked where it is found on facts that the lesser amount stated in the return filed by the assessee is a result of an attempt to evade tax lawfully payable by the assessee.The burden of proving that the assessee has so attempted to evade tax is on the revenue which may be discharged by the revenue by establishing facts and circumstances from which a reasonable inference can be drawn that the assessee has, in fact, attempted to evade tax lawfully payable by it. Subject to the aforesaid construction of Section 143 (1A), we uphold the retrospective clarificatory amendment of the said Section and allow the appeals - 2015 S.C. MSK LAW REPORTS

the constitutional validity of the retrospective  amendment       to Section 143(1A) of the Income Tax Act, 1961.  Both the Single Judge       and the Division Bench of the Gauhati High Court have  held  that  the       retrospective effect given to the amendment  would  be  arbitrary  and       unreasonable inasmuch as the provision, being a penal provision, would       operate harshly on assessees who have made a loss instead of a profit,       the difference between the loss showed in  the  return  filed  by  the       assessee and the loss  assessed  to  income  tax  having  to  bear  an       additional income tax at the rate of 20%. we  therefore,  hold  that       Section 143 (1A) can only be invoked where it i...
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Plaintiff has to stand on his own legs by proving his case. - Adverse Possession - High Court wrongly shifted the burden of proof on the Govt./Defendant - though the plaintiffs have pleaded that Surjan Singh was granted oral patta by erstwhile Zamindar Srilal, but it has not been averred in the plaint as to in which year or Samvat such an oral patta was given to Surjan Singh (father of plaintiff Nomi Singh).-Though the plaintiffs did file some documentary proof in the form of khasra entry in respect of some of the plots in question, for the period of 1950-1952 ( i.e. when admittedly land was allotted for one year to father of the plaintiff), but the subsequent entries for period Samvat 2013 to Samvat 2018 disclosed that the land in question was part of industrial area and recorded in favour of the Commercial Department of the State.- the plaintiffs should have disclosed and proved as to when the adverse possession started and when it was perfected by them, particularly when they were declared encroachers way back in the year 1978 by theTehsildar. - plaintiffs failed to establish the requisites of adverse possession pleaded in the amended plaint and they cannot be said to have acquired the title of 'Bhumiswami' by virtue of Madhya Pradesh Land Revenue Code. - 2015 SC MSK LAW REPORTS

It is settled principle of law that in respect of relief claimed by a  plaintiff, he has to stand on his own legs by proving  his  case.           Land  in       question bearing survey Nos. 376 to 400 and 401 to 411,  measuring  45       bigha 10 biswa  situated  at  village  Dinapur,  Tehsil  and  District       Gwalior,  was  acquired  by  the  State  Government  for  setting   up       industrial area, in the year 1946.  However, the industrial area could       not be set up and a part of the land appears to  have  been  given  on       lease to plaintiff-respondent Nomi Singh on 11.5.1951 for a period  of       one year. In the year 1978 Tehsildar  (Nazul),  Gwalior,  vide  order ...
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Specific Performance of an agreement of Sale - Lease Hold Rights with out permission of DDA can not be sold - but sold under an agreement of sale - General Power of Attorney was also executed - a collusive specific performance of decree was obtained to avoid stamp duty and Registration charges - Despite of direction in the Decree to deposit stamp duty and registration charges not complied - It is a collusive Decree - confers no title on the person who obtained the same - Scheme for conversion of lease hold rights into free hold rights - by the date of commencement of scheme , he is not power of attorney holder - as per latest judgement of Apex court , no transfers can be effected by GPA sales and the same will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."- High court order is set aside - The respondent is at liberty to pursue the matter with DDA in accordance with law. Respondent is also at liberty to seek for return of money deposited by him/his father-Lekhraj Kukreja and when such application is made for return of money, the appellant/DDA is directed to return the same with 10% interest. - 2015 S.C. MSK LAW REPORTS

DDA executed perpetual sub-lease deed dated 16.08.1967 in respect  of the suit property in favour of one    Sh. Jan Talwar (Defendant No.1 in  the original suit).  Jan Talwar by an agreement to sell dated 10.6.1986,  agreed to sell the suit property to Mrs. Raymen Kukreja for  a  sale  consideration of Rs.20,50,000/-. Jan Talwar, in respect of the same suit  property,  also executed a General Power of Attorney dated 10.06.1986 in favour of Lekh  Raj Kukreja-husband of vendee i.e. Mrs. Raymen Kukreja. The  cause  of  action arose in the year 1989, when Jan Talwar refused to execute  the  sale  deed, even after receiving the complete  sale  consideration. This  led  to  the filing of civil suit being CS (OS) No.2777/1989 for  a  decree  of  specific performance of the aforesaid agreement to sell.  Compromise Decree "There will be a...
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CONSTITUTIONAL VALIDITY - Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2). - Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid. - Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material. Similarly, the Information Technology "Intermediary Guidelines" Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment. Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and not saved by Article 19(2). All the writ petitions are disposed in the above terms.-2015 S.C. MSKLAWREPORTS

 The  immediate cause for concern in these petitions  is  Section  66A  of  the  Information Technology Act of 2000.  This Section was  not  in  the  Act  as  originally enacted, but came into force by virtue of an  Amendment  Act  of  2009  with effect from 27.10.2009.  Since all the arguments raised by  several  counsel for the petitioners deal with the unconstitutionality of this Section it  is set out hereinbelow: "66-A. Punishment  for  sending  offensive  messages  through  communication service, etc.-Any person who sends, by means of a  computer  resource  or  a communication device,- (a) any information that is grossly offensive or has menacing character; or (b) any information which he knows to be  false,  but  for  the  purpose  of causing  annoyance, ...
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Section 302/397/34 IPC -When other four accused were acquitted and in the absence of appeal - his conviction for dacoity with murder punishable under section 391 and 396, IPC, in the facts and circumstances of the case, cannot be sustained in law as the four accused were acquitted and as there is no identification this accused - there is no independent charge under sec.302 of I.P.C. -2015 S.C. MSKLAWREPORTS

 "That you Satnam  Singh,  Sukhwinder  Singh,  Malkiat  Singh,  Manmeet Singh, Balwinder Singh along with Gurcharan Singh (Proclaimed offender  vide Order dt.30.11.2004) on 28.5.2004 in the area of Morinda  agreed  to  do  an illegal act i.e. to commit dacoity or to commit murder and in  pursuance  of that agreement you all the above said accused committed the dacoity  of  Rs. 7,78,156/- and committed the murder of Mohinder Singh and  thereby  you  all committed an offence punishable under Section 120-B of the  IPC  and  within my cognizance.       Secondly, on the same date and time you all the accused namely  Satnam Singh, Sukhwinder Singh, Malkiat Singh, Manmeet Singh, Balwinder  Singh  and Gurbachan Singh were present near  Suburban  Office  PSEB  Morinda  and  you accused Malkiat Singh in furtherance...
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Injunction suit - Or.VII, rule 11 C.P.C - Rejection of plaint - Letter of Credits & it's acceptance - Malayn Bank had forwarded the documents presented by the Synergic Companies to the Allahabad Bank. Out of four Letters of Credit, Allahabad Bank had accepted the presentation of documents in two Letters of Credit with the consultation of the STC. Only one of the presentation was rejected while there is no information with respect to the response of the Allahabad Bank on presentation of documents of the fourth Letter of Credit. - Even on the Letter of Credit for which the presentation was rejected, the response was made after 19 days while UPC-600 provides that rejection or any objection against the presentation must be communicated to the negotiating bank of the beneficiary within 5 days. - Single judge rightly rejected the plaint as It is not enough to allege fraud but there must be clear evidence both as to the fact of fraud as well as to the bank's knowledge of such fraud. - 2015 S.C. MSK LAW REPORTS

The learned Single Judge rejected the plaint  of  the  appellants  herein  under Order VII Rule 11 of the Code of Civil Procedure, 1908. Division  Bench  of the Delhi High Court by which the High Court dismissed the appeals filed  by the appellants.   M/s.  Millenium  Wires  (P) Ltd. (hereinafter referred  to  as  "Millenium  Wires")  and  State Trading Corporation of India Limited (hereinafter  referred  to  as  "STC")   entered into an Associateship Agreement (hereafter referred to as "the  Agreement"), for importing continuous  cast  copper  wire  rods  from  Synergic  Material Services  PTE  Limited,  Singapore   and    Synergic   Industrial   Material Services, Malaysia (hereinafter referred to as  "Synergic,   Singapore"  and "Synergic,  Malaysi...
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