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Execution Petition = The High Court, by an interim order dated 11th May, 1970 gave an opportunity to the appellant/judgment debtor to pay the entire decretal amount within two months from the date of passing of the interim order, failing which it was directed that the said order would stand automatically vacated. 10. The entire decretal amount was admittedly not paid by the judgment debtor and therefore, finally by an order dated 2nd February, 2006, the Execution Second Appeal No. 742 of 1970 has been dismissed by the High Court and being aggrieved by the said order, the judgment debtor has filed this appeal.= It is really deplorable that the heirs of the plaintiff who had filed the original suit somewhere in 1955 are still unable to get the decretal amount. In our opinion, sufficient opportunities had been provided to the judgment debtor to pay the decretal amount but every time the appellant failed to pay the decretal amount within the period prescribed, this matter should have an end at this stage and therefore, we dismiss the appeal and the stay granted by this Court also stands vacated.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40819     NON REPORTABLE   IN THE SUPREME COURT OF INDIA   CIVIL APPELLATE JURISDICTION   CIVIL APPEAL NO. 8398 OF 2013 (Arising out of SLP(C) No. 6094 of 2007)   Manju Swarup (D) through Lrs. …..Appellants       Versus   Bhupenshwar Prasad (D) Through Lrs. & Ors. …..Respondents       … Continue reading

Fire Accident – Insurance = Surveyor’s report has significant and evidentiary value = It is well settled law that a Surveyor’s report has significant and evidentiary value unless it is proved otherwise which the complainants have failed to do so in the instant case. This view finds support from the judgment of this Commission, in D.N.Badoni Vs. Oriental Insurance Co.Ltd, 1 (2012) CPJ 272 (NC). In United India Insurance Co. Ltd., & Ors. Vs. Roshan Lal Oil Mills Ltd. & Ors., (2000) 10 SCC 19, the Hon’ble Apex court was pleased to hold :- “The appellant had appointed joint surveyors in terms of Section 64-UM(2) of the Insurance Act, 1938. Their report has been placed on the record in which a detailed account of the factors on the basis of which the joint surveyors had come to the conclusion that there was no loss or damage caused on account of fire, was given and it was on this basis that the claim was not found entertainable. This is an important document which was placed before the Commission, but the Commission, curiously, has not considered the report. Since the claim of the respondent was repudiated by the appellant on the basis of the joint survey report, the Commission was not justified in awarding the insurance amount to the respondent without adverting itself to the contents of the joint survey report, specially the facts enumerated therein. In our opinion, non-consideration of this important document has resulted in serious miscarriage of justice and vitiates the judgment passed by the Commission. The case has, therefore, to be sent back to the Commission, for a fresh hearing”. He has placed reliance on ‘Panchanama’, prepared at the place of incident by the independent ‘Panchas’. He stated that ‘Panchas’ and Police, have stated that damage in the sum of Rs.76,39,090/- was accrued. It is noteworthy to see that no ‘Pancha’ was produced before this Commission. No affidavit of the ‘Pancha’ saw the light of the day. The said ‘Panchanama’ has an exiguous value. Moreover, in view of the Surveyor’s Report, the ‘Panchanamas’, prepared by self-appointed ‘Panchas’, pales into insignificance. It is, therefore, ordered that rest of the amount in the sum of Rs.2,10,000/-, with interest @ 9% p.a., be paid to the complainant, M/s. Keshav Trading Co., from the date of filing of the claim, till its realization. It may be mentioned here that there is inordinate delay in settling the claim of the complainant. Even if the complainant was not available, the claim should have been settled and the amount should have been sent at the given address. Keeping in view of these facts and circumstances, we also award compensation in the sum of Rs.50,000/-, which be paid within sixty days, by the insurance company, or else, it will carry interest @ 9% p.a. The Original Petition stands disposed of, in above terms.

published in http://164.100.72.12/ncdrcrep/judgement/00130807131226383OP6405.htm NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI            ORIGINAL PETITION NO. 64 OF 2005 Keshav Trading Company Bhilwada Circle, Talati Road Palitana, District Bhavnagar Gujarat Through Attorney, Sh.Nasruddin Bhai S/o Noor Muhammad Sneh Milan, ‘A’ Wing, Ground Floor Room No.1, Dewan Maan Vasai, Mumbai                                                                      … Complainant Versus Divisional Manager United India Insurance Co.Ltd Nava Para, … Continue reading

Sec. 53 of Insolvency Act = Whether the Courts can order adjudicating the transferor as insolvent and ordering to administer schedule property by the official receiver and distribute the sale proceeds among the petitioners is sustainable?

 Whether the Courts can order adjudicating the transferor as insolvent and ordering to administer schedule property by the official receiver and distribute the sale proceeds among the petitioners is sustainable?         On Insolvency petition of the creditors/petitioners under Sections 7 to 9 of the Provincial Insolvency Act, 1920 (for short ‘the Act’) to adjudicate the transferor/debtor … Continue reading

Cheque dishonor case = under Section 138 of the N.I. Act, in case of issuance of cheque from joint accounts, a joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account holder. The said principle is an exception to Section 141 of the N.I. Act which would have no application in the case on hand. The proceedings filed under Section 138 cannot be used as an arm twisting tactics to recover the amount allegedly due from the appellant. It cannot be said that the complainant has no remedy against the appellant but certainly not under Section 138. The culpability attached to dishonour of a cheque can, in no case “except in case of Section 141 of the N.I. Act” be extended to those on whose behalf the cheque is issued. This Court reiterates that it is only the drawer of the cheque who can be made an accused in any proceeding under Section 138 of the Act.

published in http://judis.nic.in/supremecourt/filename=40479 Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 813 OF 2013 (Arising out of S.L.P. (Crl.) No. 9794 of 2010) Mrs. Aparna A. Shah …. Appellant(s) Versus M/s Sheth Developers Pvt. Ltd. & Anr. …. Respondent(s) J U D G M E N T P.Sathasivam,J. 1) Leave … Continue reading

sale with condition to repurchase is not a mortgage = whether it is a mortgage by conditional sale or a sale with an option to repurchase ?. one should be guided by the terms of the document alone without much help from the case law. = No doubt the document is styled as a deed of conditional sale= What does the executant do under the document? He takes a sum of Rs. 5,000/- in cash. The particulars are (a) Rs 2,499/- i.e. Rs 899/- by mortgage of his house on 27-1-1944 and (b) Rs. 1,600 by a further mortgage on 31-5- 1947 totalling to Rs 2,499/-. Thereafter, an amount of Rs 2,501/- in cash was taken from the transferee. The purpose was to repay miscellaneous debts and domestic expenses and business. It has to be carefully noted that this amount of Rs 5,000/- was not taken as a loan at all. As rightly observed by the High Court, by executing this document the executant discharges all the prior debts and outstandings. Where, therefore, for a consideration of a sum of Rs 5,000/- with the conditional sale is executed, we are unable to see how the relationship of debtor and creditor can be forged in. In other words, by reading the documents as a whole, we are unable to conclude that there is a debt and the relationship between the parties is that of a debtor and a creditor. This is a vital point to determine the nature of the transaction.”= the document was not a mortgage by conditional sale, rather the document was transfer by way of sale with a condition to repurchase. =In the instant case, the alleged sale document was executed in the year 1967 transferring the suit property by way of sale subject to one stipulation/condition that on receiving the sale amount of Rs. 3,000/- within five years the land was to be returned to the plaintiff-vendor. It is also not in dispute that after transfer of the land the defendant- respondent No. 1 came in possession and used & enjoyed the suit property as an absolute owner. It was only after 11 years that the plaintiff-appellant filed the suit alleging that the suit property was mortgaged in favour of the defendant/respondent No.1 herein with a condition to reconvey the land. 20. In the aforesaid premises, we do not find any reason to interfere with the findings recorded by the first appellate court. As stated above, the High Court has rightly not interfered with the findings of fact recorded by the first appellate court. 21. For the aforesaid reasons, we do not find any merit in this appeal which is, accordingly, dismissed, but without any costs.

published in http://judis.nic.in/supremecourt/filename=40466 Page 1 ‘REPORTABLE’ IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4833 OF 2013 (Arising out of Special Leave Petition (Civil) No.578 of 2005) VANCHALABAI RAGHUNATH ITHAPE (D) BY LR. Appellant(s) VERSUS SHANKARRAO BABURAO BHILARE (D) BY LRS. AND OTHERS Respondent(s) JUDGMENT M.Y. EQBAL, J. Delay condoned. Leave granted. 2. … Continue reading

LACK OF JURISDICTION = no part of the cause of action had arisen = INFRINGEMENT OF PATENT RIGHTS =The original application, in O.A.No.514 of 2011, in C.S.No.408 of 2011, had been filed praying that this Court may be pleased to grant an order of ad-interim injunction restraining the defendant, its directors, employees, officers, servants, agents, men, representatives and all others acting for and on their behalf, from making, selling, distributing, advertising, exporting, importing, offering for sale and in any other manner, directly or indirectly, dealing in pharmaceuticals or any chemical compound product that infringes the subject matter of Indian Patent No.196774, registered by the plaintiffs, pending disposal of the suit. = the appellants are based in Switzerland and the U.S.A. and the respondent is based in Ahmedabad, Gujarat. It is clear that this Court would not have the territorial jurisdiction to hear the suit filed by the appellants, in C.S.No.408 of 2011, only based on the claim of the appellants that a single sale of the infringing product had taken place, at Chennai. It is also seen that Vitman Pharma Limited, said to be the stockist/distributor/agent of the respondent in the present appeals had not been impleaded as a party to the suit, in C.S.No.408 of 2011, filed by the appellants. As such the suit filed by the appellants is bad in the eye of law for the non-joinder of the necessary party, as per Section 109 of the Patents Act, 1970. Even though certain rights have been conferred upon the patentee, under Section 48 of the Patents Act, 1970, the appellants in the present appeals have not been in a position to show that the respondent had infringed the patent right vested in the appellants, by showing sufficient evidence. The plaintiffs in the suit, in C.S.No.408 of 2011, who are the appellants in the present appeals, had not averred in the plaint that the defendant therein was carrying on the business dealing with the product in question, within the territorial jurisdiction of this Court. The learned single Judge had rightly found that the pleadings in the suit do not disclose any cause of action for the filing of the suit before this Court. Relying on the decision, in Dhodha House Vs. S.K.Maingi, (2006) 9 SCC 41, the learned single Judge had rejected the claims made on behalf of the appellants herein, who were the plaintiffs in the suit, in C.S.No.408 of 2011. In such circumstances, we are of the considered view that the present Original Side Appeals, filed by the appellants, are devoid of merits and hence, they are liable to be dismissed. Accordingly, they stand dismissed. No costs.

  IN THE HIGH COURT OF JUDICATURE AT MADRAS       DATED: -4-2013   CORAM   THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE M.M.SUNDRESH   O.S.A.Nos.36 and 37 of 2012   O.S.A.No.36 of 2012   F.Hoffmann-La Roche Ltd Group Headquarter Grenzacherstrassee 124 CH-4070 Basel Switzerland Represented by its constituted attorney Ms.Sujatha Subramaniam   … Continue reading

SARFAESI Act, verses Official liquidator under companies Act = any sale conducted defraud other secured creditor within one year after the commencement of company petition is void = There cannot be any doubt of the fact from the dates given earlier that the transfer was within a period of six months from the date of presentation of the liquidation proceedings and consequently it is statutorily invalid and the law does not recognize it. In fact, an attempt was sought to be made that there is no reference to sale in either of the Sections and it only refers to transfer and consequently these provisions can have no application. It has to be held that the transfer of interest in immovable property is in consequence of a sale and therefore the word transfer takes in its fold the very act of sale. Therefore, by applying Section 531 it is quite clear that the transfer shall be deemed to be invalid. 12. Even under Section 531-A it is quite clear if the sale was within a period of one year from the date of presentation of the liquidation proceedings as against the Official Receiver who represents the body of the creditors on his appointment after the winding up proceedings, the sale is void. Therefore, by applying Section 531 or 531-A it is quite clear from any angle the sale in this case is hit by the above provisions and when the sale is statutorily invalid or void there is no need for a relief to be asked by the Official Receiver to set aside the sale or approach the Debt Recovery Tribunal, since these two provisions are to be exclusively dealt by the Company Court alone, which is rightly contended by the Official Liquidator. I hold that this Court alone can decide the binding nature of the transactions under Section 531 or 531(A) of the Companies Act. It is to be noted that the powers conferred under the SARFAESI Act for the Bank or the Authorized Officer is only in order to avoid the delay of legal proceedings and it does not give any right or advantage to misuse the power of quasi judicial nature in order to convert a Non Performing Asset and realize the money by adopting improper mode. Therefore, for all the above reasons, I hold that the sale as held by the Authorized Officer on behalf of the Creditor Bank is void and the right of the Official Receiver in the liquidation proceedings cannot be defeated and as the sale is void, it goes to the root of the obligations between the auction purchaser and the Authorized Officer and when once the sale is set aside as void, it is needless to say that the Creditor Bank cannot take advantage of the void sale and the auction purchaser shall be restored to the same position prior to the sale and any amount realized by the Creditor Bank cannot be retained by it. Accordingly, W.P.No.19297 of 2012 is allowed granting the reliefs claimed thereunder. W.P.No.33655 of 2011 and Company Application No.1972 of 2011 are dismissed. Consequent on the orders holding that the sale as void as it comes within the purview of this Court, Company Application No.421 of 2013 is also allowed as a consequence of the sale being held as void under Section 531 and 531 (A) of the Companies Act. No costs.

HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO WRIT PETITION Nos.19297 of 2012 & 33655 of 2011 & COMP.A.Nos.1972 of 2011 & 421 of 2013 in C.P.No.215 of 2010 22.04.2013. M/s. United Steel Allied Industries Private Limited ….Petitioner M/s. Indian Bank, Corporate Office, and others …Respondents Counsel for the Petitioner: Counsel for the Respondents: <Gist : >Head … Continue reading

The Appellate Jurisdiction of this Court guaranteed under Section 15Z of the Securities and Exchange Board of India Act, 1992 (for short ‘SEBI Act’) has been invoked challenging a joint order dated 5.10.2012 passed in Appeal Nos. 28 and 29 of 2012 passed by Securities Appellate Tribunal, Mumbai (for short ‘Tribunal’) upholding the order passed by SEBI dated April 18, 2011 restraining the appellant for a period of two years from buying, selling or dealing in securities and the order passed by the adjudication officer dated July 28, 2011 imposing a monetary penalty of 50 lacs under Section 15HA of SEBI Act.- SEBI, the market regulator, has to deal sternly with companies and their Directors indulging in manipulative and deceptive devices, insider trading etc. or else they will be failing in their duty to promote orderly and healthy growth of the Securities market. Economic offence, people of this country should know, is a serious crime which, if not properly dealt with, as it should be, will affect not only country’s economic growth, but also slow the inflow of foreign investment by genuine investors and also casts a slur on India’s securities market. Message should go that our country will not tolerate “market abuse” and that we are governed by the “Rule of Law”. Fraud, deceit, artificiality, SEBI should ensure, have no place in the securities market of this country and ‘market security’ is our motto. People with power and money and in management of the companies, unfortunately often command more respect in our society than the subscribers and investors in their companies. Companies are thriving with investors’ contributions but they are a divided lot. SEBI has therefore, a duty to protect investors, individual and collective, against opportunistic behavior of Directors and Insiders of the listed companies so as to safeguard market’s integrity. Print and Electronic Media have also a solemn duty not to mislead the public, who are present and prospective investors, in their forecast on the securities market. Of course, genuine and honest opinion on market position of a company has to be welcomed. But a media projection on company’s position in the security market with a view to derive a benefit from a position in the securities would amount to market abuse, creating artificiality. SEBI has the duty and obligation to protect ordinary genuine investors and the SEBI is empowered to do so under the SEBI Act so as to make security market a secure and safe place to carry on the business in securities.

Page 1     1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos.4112-4113 of 2013 (D.No.201 of 2013) N. Narayanan .. Appellant Versus Adjudicating Officer, SEBI .. Respondent J U D G M E N T K. S. Radhakrishnan, J 1. India’s capital market in the recent times has witnessed tremendous … Continue reading

UNFAIR TRADE PRACTICE – QUACK DOCTOR = According to the appellant, she came across an advertisement published in a newspaper ‘Jan Satta’ dated 8.8.1993 offering treatment of the patients having fits with Ayurvedi medicine by Dr. R.K. Gupta­ respondent No.1. The advertisement impressed the appellant as the respondent No.1 claimed total cure of fits. The appellant wrote a detailed letter to respondent No.1 about her son’s fits during high fever. In response, respondent No.1 sent a letter dated 23rd November, 1993 assuring that he had specialised treatment for the problem of Prashant by Ayurvedic medicines. despite medicines being given regularly the condition of Prashant started deteriorating day by day and the fits which were occasional and occurred only during the high fever, started occurring even without fever. = he is a quack and guilty of medical negligence, criminal negligence and breach of duty as he was playing with the lives of innocent people without understanding the disease. He was prescribing Allopathic medicines, for which he was not competent to prescribe. It was, inter alia, prayed that direction be issued to respondents to pay a sum of Rs.20 lakhs as compensation; to refund the charges paid by the appellant to the respondents and to reimburse the expenses incurred by the appellant on travelling to Rishikesh and a sum of Rs.10 lakhs for undergoing termination of pregnancy. = The National Commission has already held that respondent No.1 was guilty of unfair trade practice and adopted unfair method and deceptive practice by making false statement orally as well as in writing. In view of the aforesaid finding, we hold that both Prashant and the appellant suffered physical and mental injury due to the misleading advertisement, unfair trade practice and negligence of the respondents. The appellant and Prashant thus are entitled for an enhanced compensation for the injury suffered by them. Further, we find no reason given by the National Commission for deducting 50% of the compensation amount and to deposit the same with the Consumer Legal Aid Account of the Commission. 16. We, accordingly, set aside that part of the order passed by the National Commission and enhance the amount of compensation at Rs.15 lakhs for payment in favour of the appellant with a direction to the respondents to pay the amount to the appellant within three months. The appeal is allowed but there shall be no separate order as to costs.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8660 OF 2009 BHANWAR KANWAR …. APPELLANT VERSUS R.K. GUPTA & ANR.  ….RESPONDENTS J UD G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. This   appeal   has   been   preferred   by   the complainant­appellant against the order and judgment dated   29th  January,   2009   passed   by   the   National Consumer   Disputes   Redressal   Commission,   New   Delhi (hereinafter   referred … Continue reading

a notification dated July 7, 2005 issued by the Central Government under section 10(1) of the Act. The notification was issued after due consultation with the Central Advisory Central Labour Board with regard to the conditions of work and benefits provided for the contract labour and other relevant factors enumerated in sub-section 2 of section 10 and it prohibited the employment of contract labour “in the works of sleeper renewal of railway Tracks, repairing, restoration and laying and linkage of tracks in the establishment of Kolkata Port Trust, Kolkata” with effect from the date of publication of the notification in the official gazette.= the division bench has carved out an exception in favour of the respondent, Port Trust of Calcutta (hereinafter, “Port Trust”) from a notification issued by the Central Government under section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter “the Act”) and held that the notification “would not in any way affect the right of the Port Trust to assign the work of laying and linkage of railway tracks as one time measure of (sic. to) RITES, another Central Government Organization”. Whether the work of laying and linking of tracks is of perennial nature and whether workers engaged through contractors are employed by the Port trust for that work are pure questions of fact that were investigated by the statutory committee constituted under section 5 of the Act and are covered by the recommendations made both by the Committee and by the Advisory Board. It was, therefore, quite wrong for the division bench of the High Court to completely nullify that part of the notification in a highly casual and off- hand manner and simply on the ipse dixit of the respondent; more so as the division bench did not otherwise find any illegality in the notification in question. In light of the discussion made above, we see no justification for the division bench of the High Court to carve out the exception and to rationalize the assignment of the contract to RITES merely on the ground that it is another Central Government organization. The High Court clearly exceeded its jurisdiction in passing the impugned order. 19. We are, therefore, unable to sustain the impugned order passed by the division bench. The order of the division bench of the High Court is set aside and the order of the learned single Judge is restored.

Page 1 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2771 OF 2013 (ARISING OUT OF SLP (CIVIL) NO.3104 OF 2011) BALESHWAR RAJBANSHI & ORS. … APPELLANTS VERSUS BD. OF TRUSTEES FOR PORT TRUST OF CALCUTTA & ORS. …RESPONDENTS J U D G M E N T Aftab Alam, J. 1. Leave … Continue reading

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