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Calcutta High Court

This tag is associated with 37 posts

DRT – Recovery of Debts due to Banks and Financial Institutions Act, 1993 -whether a suit containing a “counter-claim” or claiming a “set-off” filed by a debtor can be heard and tried before the Debt Recovery Tribunal (hereinafter referred to as ‘DRT’) under the RDB Act or must be tried by a Civil Court alone. – Apex court held that there is a difference opinion between several Benches of this court – directed the registry to place the case before CJ = CIVIL APPEAL Nos.8973-8973 OF 2014 (Arising out of Special Leave Petition (C) Nos. 975-976 of 2012) Bank of Rajasthan Ltd. …. Appellant Versus VCK Shares & Stock Broking Services Ltd. …. Respondent = 2014 – Sept.Month – http://judis.nic.in/supremecourt/filename=41930

DRT – Recovery of  Debts  due  to  Banks  and  Financial  Institutions  Act,  1993 -whether a suit containing a  “counter-claim” or claiming a “set-off” filed by a debtor can be heard and tried before  the Debt Recovery Tribunal (hereinafter referred to as ‘DRT’) under the RDB  Act or must be tried by a Civil Court alone. – Apex court held that … Continue reading

Land Acquisition – Sec.4 notifications – Sec.5 A objections – not considered award was passed – other claimants under same notification filed writs – allowed – pending in Apex court no stay – no possession was taken despite of passing of award – all slps were dismissed – Apex court held that A large number of cases filed before this court and particularly SLP (C) Nos. 208, 211 & 212 of 2008 stood dismissed vide order dated 10.12.2008, as the petitioners did not take steps to serve the respondents therein as is evident from the Office Report dated 25.6.2013. In such a fact scenario, where in respect of major chunk of land, the land acquisition proceedings had been quashed long back and which has attained finality, it is beyond our comprehension as to whether the scheme of planned development of Delhi can be executed at such a belated stage in view of the fact that vacant land in continuous stretch may not be available. In view of above, we do not see any force in these appeals even on merit and the same are liable to be dismissed. = Union of India & Ors. ` …. Appellants Versus Shiv Raj & Ors. …. Respondents = 2014 (April.Part) http://judis.nic.in/supremecourt/filename=41528

 Land Acquisition – Sec.4 notifications – Sec.5 A objections – not considered award was passed – other claimants under same notification filed writs – allowed – pending in Apex court no stay – no possession was taken despite of passing of award – all slps were dismissed – Apex court held that A large number  of … Continue reading

Under Art.136 of the constitution – Or.21, rule 89 C.P.C. – Duty of court to determine the amount payable by Jdr after auction done – amount determined belatedly – Jdr is not responsible – giving an opportunity to the Jdr by High court to pay the determined amount to set aside the sale – is not illegal = – SUKUMAR DE ………..PETITIONER(S) VERSUS BIMALA AUDDY & ORS. …………RESPONDENT(S) – http://judis.nic.in/supremecourt/imgst.aspx?filename=40909

Under Art.136 of the constitution – Or.21, rule 89 C.P.C. – Duty of court to determine the amount payable by Jdr after auction done – amount determined belatedly – Jdr is not responsible – giving an opportunity to the Jdr by High court  to pay the determined amount to set aside the sale – is … Continue reading

Sec.138 of Negotiable Instrument Act – court can convert sentence into fine but at the same time no fine should be exceed twice the cheque amount ; Sec.357(3) has no application SOMNATH SARKAR Vs. UTPAL BASU MALLICK & ANR. published in judis.nic.in/supremecourt/filename=40873

As per the Negotiable instrument Act – a penalty should be imposed twice the cheque amount but not more than that. Section 357(3), Cr.P.C no application in cheque bounce case. Court can impose sentence or fine or both. Appellant/ Revision court  has got jurisdiction to convert the sentence into fine = The lower court sentenced 6 months imprisonment … Continue reading

sec. 354 outrage the modesty of women is to be considered stringy, no lenient view – Ajahar Ali … Appellant VERSUS State of West Bengal … Respondent published in judis.nic.in/supremecourt/filename=40857

Sec. 354 outrage the modesty of women is to be considered stringy, no lenient view should be taken while granting punishment – Due to delay of 18 years, the accused is not entitled  to any benefit under the provisions of Probation of Offenders Act, 1958 – No lenient view       The provisions of Section 354 … Continue reading

Company Laws = Whether the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter for short “SICA”) are applicable to the “foreign companies” registered in India under the provisions of Section 591 of the Companies Act, 1956 (hereinafter for short “the Act”) and, therefore, the revival scheme framed by the Board for Industrial and Financial Reconstruction (hereinafter referred to as “BIFR”) in respect of the Baranagore Jute Factory Plc. (hereinafter for short ‘the Respondent Company’) is required to be implemented. Section 3(o) of the Act which defines a sick industrial company in the following terms: “(o) “sick industrial company” means an industrial company (being a company registered for not less than five years) which has at the end of any financial year accumulated losses equal to or exceeding its entire net worth. Explanation.—For the removal of doubts, it is hereby declared that an industrial company existing immediately before the commencement of the Sick Industrial Companies (Special Provisions) Amendment Act, 1993 registered for not less than five years and having at the end of any financial year accumulated losses equal to or exceeding its entire net worth, shall be deemed to be a sick industrial company;”= In the aforesaid situation keeping in view the object and scheme of the Act and the virtual consensus of the contesting parties with regard to the present financial health of the respondent company it is clear that the company can no longer fall within the ambit of the expression “sick industrial company” as defined in Section 3(o) of the Act. Further applicability of SICA to the respondent company, therefore, does not arise.

published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40821      REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.8440-8445 OF 2013 (Arising out of SLP (C) Nos.39005-39010 of 2012)   Yash Deep Trexim Private Limited … Appellant (s)   Versus   Namokar Vinimay Pvt. Ltd. & Ors. … Respondent (s)   With Civil Appeal Nos.8446-8451 … Continue reading

Allowance in lieu of kilometerage (ALK). = whether the respondent, a medically decategorised Driver of the Indian Railways, working as a Crew Controller with stationary duties, is entitled to allowance in lieu of kilometerage (ALK). = only a specific category of employees in the Railways like Drivers, Motormen, Firemen, Guards, Assistant Guards etc. who constitute the running staff and such staff who are directly connected with the movement of trains perform running duties. Running Allowance under the Rules is required to be paid only to the running staff who are engaged in the performance of duties directly connected with the movement of trains and such allowance includes kilometerage allowance or allowance in lieu of kilometerage (ALK). While kilometerage allowance is to be paid for performance of actual running duties, the allowance in lieu of kilometerage (ALK) is to be paid to such members of the running staff who are temporarily required to perform stationary duties. The rules also make it clear that 30% of the basic pay of the running staff is required to be treated as representing the pay element in the Running Allowance. Those members of the running staff who are employed on non-running duties are paid the aforesaid 30% of the basic pay if such non-running duties are performed at the headquarters whereas in case such non-running duties are performed by the running staff at outstations they are required to be paid ALK at the rates prescribed by Rule 907(b). It is thus clear that no Running Allowance i.e. either kilometerage allowance or allowance in lieu of kilometerage is contemplated for any staff, including erstwhile members of the running staff, permanently engaged in performance of stationary duties. Running Allowance of either description is required to be paid only to members of the running staff who are directly engaged in actual movement of trains or such staff who are temporarily assigned stationary duties but who are likely to go back and perform running duties. The respondent does not fall in either of the above two categories.- We, therefore, hold that the High Court was not justified in issuing the impugned directions for grant of ALK to the respondent. The order of the High Court dated 20.06.2011 is therefore set aside and the appeal is allowed.

 published in     http://judis.nic.in/supremecourt/imgst.aspx?filename=40728        REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7298 OF 2013 (Arising Out of SLP (C) No.3446 of 2012) Union of India & Ors. … Appellant(s) Versus B. Banerjee … Respondent(s)   J U D G M E N T RANJAN GOGOI, J. … Continue reading

Promotion by considering the period of service done on adhoc basis = No = whether the applicant has any legal right to be considered for the post of Executive Engineer (Mechanical). It is seen he was an ad-hoc appointee for various periods of time from 23.3.1999 till his regularization as Assistant Engineer on 29.4.2005. His orders on 29.4.2005 appointing him as an Assistant Engineer on regular basis also stipulated that he would be on probation for two years. The applicant at the time of such regularization on 29.4.2005 did not challenge the same nor did he make a representation at that time for treating his previous service on ad-hoc basis from 23.3.99 to 29.4.2005 as regular service. He accepted the order as per Annexure-A/1 together with the probation of two years period. Having done this he cannot now come and make a claim that his entire period from 23.3.99 onwards should be regularized so that he can avail of the recruitment rules for being promoted as Executive Engineer on the promotion quota. As per recruitment of Executive Engineer, the applicant is not eligible since 8 years of regular service is required.”= as per the extant rules for promotion to the post of Executive Engineer (Mechanical) 8 years regular service as Assistant Engineer is imperative. The Rules do not provide for any relaxation in this behalf. This is clear from the reading of the said rules which provide for appointment to the post of Executive Engineer (Mechanical). As per the Recruitment Rules, post of Executive Engineer (Mechanical) is a selection post. The mode of recruitment stated in the Rules is as under: “By promotion failing which by transfer on deputation (including short-term contract) and failing both by direct recruitment.” The Recruitment Rules also stipulate eligibility condition in all the three circumstances, namely, promotion, transfer on deputation as well as direct recruitment. In so far as filling up of this post by way of promotion is concerned, following requirements are stipulated for a candidate to be eligible in that category: “PROMOTION: Assistant Engineer (Mechanical) with 8 years regular service in the grade.”- there are three alternate modes of recruitment to the Post, namely, (1) by promotion, failing which (2) by transfer on deputation (including short term contract) and failing both (3) by direct recruitment. No doubt, if some departmental candidate is available and eligible to be considered, the promotion method is to be resorted to in the first instance. However, no departmental candidate was available. Concededly, the respondent had not completed 8 years regular service as Assistant Engineer. In such circumstances only out of sympathy the High Court could not have given the impugned direction. This judicial sympathy resulting into a right in favour of respondent to appoint him contrary to the recruitment rules framed under proviso to Article 309 of the Constitution of India which are statutory in nature is clearly misplaced and needs to be denounced. Such a direction is clearly unsustainable and is accordingly set aside. As a result, the appeal is allowed restoring the order of the Tribunal dismissing the O.A. filed by the respondent. No costs.

published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40684                                  [REPORTABLE] IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7032/2013 (arising out of S.L.P.(Civil) No. 20506 OF 2011) Union of India & Ors. ….Appellants Vs. Shri G.R.Rama Krishna & Anr. …..Respondents   … Continue reading

service matter – In the absence of public Advertisement, no posts should be filled from the selected list =there was no advertisement for direct recruitment the select list was quashed.the apex court held that There can be no scintilla of doubt that there was requirement of advertisement for inviting the names. However, as we perceive, the present case projects a totally different picture. = sec. “4. Vacancies to be filled up by persons sponsored by employment exchange. – After the commencement of this Act, all vacancies in the posts in any Government establishment or establishment of any public undertaking, statutory body, Government company or local authority shall be filled up by such persons as may be sponsored by an employment exchange.” – sec.6 Employment exchange to submit list of registrants to appointing authority – The employment exchange shall, on receipt of the requisition under section 5, submit to the appointing authority a list of registrants, other than the registrants who belong to the exempted category, in order of seniority determined on the basis of the length of the period of registration in that employment exchange and in accordance with such principle of rotation as the Director of Employment may prescribe from time to time, and also in conformity with the qualification, age, experience or other requirement, if any, as stated in the requisition.”- The Act provides that the persons are to be selected from the candidates sponsored by the employment exchange. It is admitted by the learned counsel for the State that on the basis of the statutory command names were called for from the employment exchange. As stated earlier, he would clarify that though the names were called for from the employment exchange, the process of selection was not restricted to only the sponsored candidates. In essence, the submission of the learned counsel for the appellants and the learned counsel for the State that when thousands of candidates had appeared, though not sponsored by the employment exchange, the panel prepared after following due procedure should not have been quashed. – There can be no scintilla of doubt that there was requirement of advertisement for inviting the names. However, as we perceive, the present case projects a totally different picture. The number of posts available was 1446 in the group ‘D’ category. For the said posts more than 57000 candidates competed. On a querry being made, the learned counsel for the State would admit that the vacancies have not been filled up because of pendency of litigation. Regard being had to the special features of the case, we are inclined to set aside the order of the High Court and that of the tribunal and we so do. We further direct the State Government to fill up the posts available from among the select list. We may hasten to clarify that if any one whose name features in the select list has been appointed in any other department or statutory organization or Government company, he cannot claim an appointment in the Department of Irrigation and Waterways. We further direct the respondent-State and its functionaries to adjust respondents 1 and 2 and extend them the benefit of appointment. The appointees cannot claim any seniority with retrospective effect as that might create cavil amongst the appointees in other departments at earlier point of time. The aforesaid exercise shall be completed within a period of eight weeks from today. 13. The appeals are disposed of in above terms. However, there is no order as to costs.

  published in http://judis.nic.in/supremecourt/filename=40651 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos. 6748-6749 OF 2013 (Arising out of SLP (C) Nos. 6177-6178 of 2012) Buddhadeb Ruidas & ors. etc. etc. … Appellants Versus State of West Bengal and ors. …Respondents With CIVIL APPEAL Nos. 6750-6751 OF 2013 (Arising out of SLP (C) … Continue reading

JURISDICTION = whether, in view of clause 18 of the consignment agency agreement (for short, ‘agreement’) dated 13.10.2002, the Calcutta High Court has exclusive jurisdiction in respect of the application made by the appellant under Section 11 of the Arbitration and Conciliation Act, 1996 (for short, ‘1996 Act’). = Conclusion: 28. For the reasons mentioned above, I agree with my learned Brother that in the jurisdiction clause of an agreement, the absence of words like “alone”, “only”, “exclusive” or “exclusive jurisdiction” is neither decisive nor does it make any material difference in deciding the jurisdiction of a court. The very existence of a jurisdiction clause in an agreement makes the intention of the parties to an agreement quite clear and it is not advisable to read such a clause in the agreement like a statute. In the present case, only the Courts in Kolkata had jurisdiction to entertain the disputes between the parties.

Published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40511 Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5086 OF 2013 (Arising out of SLP(C) No. 5595 of 2012) M/s. Swastik Gases P. Ltd. … Appellant Vs. Indian Oil Corp. Ltd. … Respondent JUDGMENT R.M. LODHA, J. Leave granted. 2. The short question that arises for consideration … Continue reading

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