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INDIA CIVIL APPELLATE

This tag is associated with 9 posts

Contempt of court – when apology tendered is a bona fide one , court should not reject the same- All Dismissal main cases should not absolve the liability of contemnor = – T.C. GUPTA … APPELLANT (S) VERSUS BIMAL KUMAR DUTTA & ORS. … RESPONDENT(S) – http://judis.nic.in/supremecourt/imgst.aspx?filename=40900

Contempt of court – when apology tendered is a bona fide one , court should not reject the same-     All Dismissal of main cases should not absolve the liability of contemnor  but it can be considered as mitigating factor =       The explanation to Section 12 of the Contempt of Courts … Continue reading

Service matter = Doctrine of proportionality in punishment= Deputy Commissioner, KVS & Ors. ….Appellants Vs. J.Hussain ….Respondent – published in judis.nic.in/supremecourt/filename=40856

Service matter =  Doctrine of proportionality in punishment –  Enter office forcibly in intoxication mood – removed from service – correct –     the High Court has found the penalty of removal from  service  to   be disproportionate to the nature and gravity of his misconduct.  Thus, –       invoking the doctrine … Continue reading

changing his date of birth = whereby the Division Bench has overturned the judgment and order dated 14.6.2004 passed by the learned single Judge in W.P. No. 5700(W) of 2001 whereunder he had given the stamp of approval to decision dated 26.2.2004 by the General Manager of the appellant-company, who had rejected the objection of the respondent for changing his date of birth as recorded in his service excerpts and Form ‘B’ Register, the appellants have preferred their appeal by special leave.- “Implementation Instruction No. 76” has tried to support the order passed by the Division Bench. Para (A)(i) deals with Matriculation certificate. It reads as follows: – “(i) Matriculates. In the case of appointees who have passed Matriculation or equivalent examinations, the date of birth recorded in the said certificate shall be treated as correct date of birth and the same will not be altered under any circumstances.” Para (A)(v) deals with revision of determination of date of birth in respect of existing employees. Paras (A)(v)(i)(a) and (b) are as follows: – “v) Review determination of date of birth in respect of existing employees. i) (a) In the case of the existing employees Matriculation Certificate or Higher Secondary Certificate issued by the recognized Universities or Board or Middle pass Certificate issued by the Board of Education and/or Department of Public Instruction and admit cards issued by the aforesaid Bodies should be treated as correct provided they were issued by the said Universities/Boards/Institutions prior to the date of employment. (b) Similarly, Mining Sirdarhip, Winding Engine or similar other statutory certificates where the Manager had to certify the date of birth will be treated as authentic. Provided that where both documents mentioned in (i)(a) and (i)(b) above are available, the date of birth recorded in (i)(a) will be treated as authentic.”- It is a well-known principle that one of the ends of equity is to promote honesty and fair play. If a person has taken an undue advantage the court in its extraordinary jurisdiction would be within its domain to deny the discretionary relief. In fact, Mr. Singh, learned senior counsel for the appellants, has basically rested his submission on this axis. In our considered opinion, the Division Bench has erred in extending the benefit to the respondent who had taken undue advantage by not producing the Matriculation Certificate solely on the motive to get an entry into service. In view of our aforesaid premised reasons we are unable to concur with the view taken by the High Court in F.M.A. No. 169 of 2006 and, accordingly, the Judgment dated 17.8.2007 passed by the Division Bench is set aside. 19. Resultantly, the appeal is allowed with no order as to costs.

published in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40832 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8634 OF 2013 (Arising out of S.L.P. (C) No. 22813 of 2007) Eastern Coalfields Ltd. and others … Appellants Versus Bajrangi Rabidas …Respondent         J U D G M E N T   Dipak Misra, J. … Continue reading

Service matter – whether respondent No. 2 is entitled to pension as claimed by him or he is eligible to get his retirement benefits under Contributory Provident Funds Scheme (for short “the C.P.F. Scheme”).= No- as he failed to choose his option with in 3 months of notification – Delay can not be accepted as it carry no value in the eye of law = The appellant-University accepted the option exercised by respondent No. 2 and therefore, it cannot be said that the deeming fiction incorporated in the Notification would help respondent No. 2. For sake of convenience, relevant extract of the Notification dated 17th August, 1991, is reproduced hereinbelow :- “….Thus all employees who were in service on 1.1.1990 shall have to exercise their option in writing, either for the pension scheme under these regulations or for continuance under the existing C.P.F. Scheme, within 3 months from the date of notification of this provision and shall submit the same to the Comptroller, Rajasthan Agriculture University, Bikaner in the prescribed form. The existing employees who do not exercise option within the period specified under these regulations shall be deemed to have opted for the pension scheme. Option once exercised shall be final and irrevocable…” 22. Though, respondent No. 2 did not exercise his option within the period prescribed under the aforestated Notification, when he had exercised the option on 3rd January, 1992, for continuing to be under the C.P.F. Scheme and when the appellant-University had graciously accepted the option exercised by respondent No. 2, he would not get benefit under the deeming fiction incorporated in the Notification. It would be unfair to the University if the submission of respondent No. 2 is accepted. A special favour was done to respondent No. 2 by accepting his option even after the prescribed period was over. Now, at this stage, after his retirement, respondent No. 2 wants to take undue advantage of the favour done to him by the appellant university, which cannot be permitted. Had respondent No. 2 not exercised his option at all, he would have been surely treated to have accepted the Pension Scheme but as he had given his option late, which had been graciously accepted by the appellant-University, it cannot be said that respondent No. 2 should be treated to have accepted the Pension Scheme. 23. All averments pertaining to employees of other universities are not relevant because each employer university would have its own scheme with regard to payment of retirement benefits to its employees. 24. We may add here that respondent No. 2 is a highly literate person and he must have known the consequences, when he had opted for the C.P.F. Scheme under his letter of option dated 3rd January, 1992. It was his conscious effort to see that he continues with the C.P.F. Scheme and the said effort was respected by the appellant- University by showing special favour, as his option was accepted even after the time prescribed in the Notification was over. 25. For the aforestated reasons, we are of the view that the High Court was in error by giving a direction to the appellant- University that respondent No. 2 should be given pension as if he had opted for the Pension Scheme. 26. The appeal stands allowed with no order as to costs.

   published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40698  REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7160 OF 2013 (Arising out of SLP (C) No. 7781 of 2011)     Rajasthan Agriculture University, Bikaner …..Appellant   Versus State of Rajasthan & Ors. …..Respondents       J U D G M E N T … Continue reading

Or. 40, rule 1 CPC – Appointment of interim receiver is not maintainable as the petitioner received the amount from the respondent to put a stop to the litigation and on the other hand the respondent is in possession of property = during the pendency of these proceedings, the second respondent sold the property in favour of respondent nos. 4 and 5 by sale deed dated 11.07.2006. It appears that the Sub-Registrar on inspection of the disputed plot found that there were two constructed duplex and two more near completion as on the date of inspection i.e. on 13.03.2007 of which one was occupied by respondent no.4.= It must be remembered that the instant proceedings arise out of the interlocutory proceedings seeking appointment of the receiver at the instance of the petitioner herein. Having regard to the fact that respondent no.4 was in possession of the property in dispute at least since 13.03.2007 admittedly and also having regard to the fact that the petitioner received an amount of Rs.6,50,000/- we do not see any justification for the appointment of the receiver. We see no reason to interfere with the judgment under appeal. We accordingly dismiss the special leave petition.

PUBLISHED IN http://judis.nic.in/supremecourt/imgst.aspx?filename=40573   NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION(C) NO. 13255 OF 2012 Satya Pal Anand …Petitioner Versus Punjabi Housing Co-operative Society & Others …Respondents J U D G M E N T Chelameswar, J. 1. This petition arises out of the final judgment and order dated 03.08.2011 … Continue reading

A contract for sale of shares is not valid as per sec.13, and 16 of Securities Contracts ( Regulation) Act and as such transfer and registration of shares in the name of purchaser is prohibited and can not be enforced = Armed with the decree, Bhagwati on 12th December, 1994 lodged the transfer deeds in respect of 14120 shares with Peerless for their transfer. Peerless, however, did not accede to the prayer of Bhagwati and by its letter dated 8th February, 1995 refused to register the said shares, inter alia, on the ground that the said transfer of shares by Tuhin in favour of Bhagwati was in violation of the provisions of Securities Contracts (Regulation) Act, 1956; hereinafter to be referred to as ‘the Regulation Act’. According to Peerless, the contract for sale of shares was not a spot delivery contract, signatures of Tuhin differed from the signatures on the record of Peerless and further the stamps affixed on the instruments of transfer had not been cancelled. Bhagwati re-lodged the shares for transfer on 14th February, 1995 with Peerless but again Peerless did not register those shares in the name of Bhagwati.- Bhagwati, aggrieved by that, approached the Company Law Board, Eastern Region by filing an application under Section 111 of the Companies Act, 1956 hereinafter to be referred to as ’the Act’ and the Company Law Board by its judgment and order dated 25th November, 1998 dismissed the said application inter alia holding that transfer of shares in favour of Bhagwati was against the provisions of Sections 13 and 16 of the Regulation Act and as such, illegal. In the opinion of the Company Law Board Peerless rightly refused registration of transfer. While doing so, the Company Law Board further observed that the shares of a public limited company which are not registered in the Stock Exchange also come under the purview of Regulation Act.= the appellant pleaded that the contract in question is a spot delivery contract and, therefore, does not come within the mischief of Section 16 of the Regulation Act.= “16. Power to prohibit contracts in certain cases.- (1) If the Central Government is of opinion that it is necessary to prevent undesirable speculation in specified securities in any State or area, it may, by notification in the Official Gazette, declare that no person in the State or area specified in the notification shall, save with the permission of the Central Government, enter into any contract for the sale or purchase of any security specified in the notification except to the extent and in the manner, if any, specified therein. (2) All contracts in contravention of the provisions of sub- section (1) entered into after the date of the notification issued thereunder shall be illegal.” – According to the definition, a contract providing for actual delivery of securities and the payment of price thereof either on the same day as the date of contract or on the next day means a spot delivery contract. When we consider the facts of the present case bearing in mind the definition aforesaid, we find that the contract in question is not a spot delivery contract. True it is that by letter dated 30th of October, 1987 written by Tuhin to Bhagwati, he had stated that the formal agreement had been executed between them on 10th November, 1986 and as per the agreement he is transferring the entire 3530 shares of Peerless purchased from the loan amount and the transfer is in its repayment. However, the agreement dated 21st November, 1994 between Bhagwati and Tuhin which formed part of the compromise decree provides that the sale of shares took place on 30th October, 1987 and in consideration thereof Bhagwati paid a sum of Rs. 10 lakhs on 21st November, 1994 and further the dividend on the entire shares up to the accounting year 1989-90 amounting to Rs.8,64,850 to be retained by Tuhin. In the face of it, the plea of Bhagwati that the payment of Rs. 10 lakh was made to buy peace, is not fit to be accepted and, in fact, that forms part of the consideration for the sale of shares. Once we take this view, the plea of the appellant that it is a spot delivery contract is fit to be rejected. We agree with the reasoning and conclusion of the Company Law Board and the High Court on this issue. Both the contentions of the appellant having no substance, we do not find any merit in this appeal and it is dismissed accordingly but without any order as to costs.

 published in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40558      REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7445 OF 2004 BHAGWATI DEVELOPERS PVT. LTD. APPELLANT VERSUS PEERLESS GENERAL FINANCE & INVESTMENT COMPANY LTD AND ANR. RESPONDENTS JUDGMENT CHANDRAMAULI KR. PRASAD,J. Appellant aggrieved by the judgment and order dated 30th July, 2003 passed in ACO No.76 … Continue reading

Unauthorized Adjustments not valid – Defendant No. 1, the Hongkong & Shanghai Banking Corporation Ltd., a Company incorporated under the laws of Hong Kong, aggrieved by the judgment and decree dated 30th of June, 2004 passed by the Special Court (Trial of Offences relating to Transaction in Securities), Bombay in Suit No. 11 of 2002 decreeing the plaintiff’s suit for a sum of Rs. 18,59,71,808.22/- along with interest at the rate of 15% has preferred this appeal.= Plaintiff Canbank Financial Services Ltd., respondent no. 1 herein filed the suit seeking a decree directing defendant no. 1 to pay to the plaintiff a sum of Rs.33,13,42,781.62/- with further interest thereon at the rate of 24% per annum compounded quarterly from the date of the suit till realization. It is the assertion of the plaintiff that defendant no. 1 was not justified in adjusting the amount paid by the plaintiff for purchase of bonds towards transactions between defendant no. 1 and Canbank Mutual Fund. The plaintiff has alleged that the transaction between defendant no. 1 and Canbank Mutual Fund are totally unconnected with the transaction between plaintiff and defendant no. 1. Whether Defendant prove that the said pay order for Rs. 18,59,71,808.22 was issued by Plaintiffs on behalf of CMF as alleged in para 8 of Written Statement?” whether defendant no. 1 has established that the payment that was made by the plaintiff to it on 24th of June, 1991 was on behalf of the Canbank Mutual Fund? – It is the specific case of defendant no. 1 that the broker informed it that the plaintiff has made payment on behalf of Canbank Mutual Fund. However, the letter dated 25th of February, 1993 of the broker to defendant no. 1 shows that on 24th of June, 1991 the Coal India bonds were sold by defendant no. 1 to the plaintiff and not to Canbank Mutual Fund. From the aforesaid it is evident that defendant no. 1 has not been able to prove that payment was made by the plaintiff on behalf of Canbank Mutual Fund. The natural corollary thereof is that the payment was made by the plaintiff to defendant no. 1 to purchase the bonds. It is not the case of defendant no. 1 that it had delivered the bonds to the plaintiff. Therefore, we are in agreement with the reasoning and the conclusions arrived at by the trial court and find no reason to interfere with the same.

  published in     http://judis.nic.in/supremecourt/imgst.aspx?filename=40557  NON-REPORTABLE   IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5281 OF 2004     HONGKONG & SHANGHAI BANKING CORPN. LTD. APPELLANT VERSUS CANBANK FINANCIAL SERVICES LTD. & ANR. RESPONDENTS   JUDGMENT   CHANDRAMAULI KR. PRASAD,J.     Defendant No. 1, the Hongkong & Shanghai Banking Corporation … Continue reading

As per Hindu Law and Hindu Succession Act sec.6 – the property lies in the hands of father fell on him during family partition among his brothers, becomes as a joint family property after the birth of the plaintiff and as such, the father has no absolute right and title to dispose the entire property with out consent of plaintiff – so the documents not valid and not binding on the plaintiff = the property received by his father is ancestral property and, therefore, alienation of the same by him is null and void.= Whether the plaintiff is entitled to a decree for declaration to the effect that impugned release deed dt.28.5.2004 and mutation no.3365 entered and attested in lieu of impugned release deed and further two sale deeds dt.19.5.2000 bearing no.272/1 and 273/1 and mutation no.3110 and 3106 entered and attested on the basis of impugned two sale deeds and further revenue entries are wrong, illegal and not binding on the rights of the plaintiff and defendants no. 6 & 7?”= It is now well settled in view of several decisions of this Court that the property in the hands of a sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid.”= A person, who for the time being is the sole surviving coparcener as in the present case Gulab Singh was, before the birth of the plaintiff, was entitled to dispose of the coparcenary property as if it were his separate property. Gulab Singh, till the birth of plaintiff Rohit Chauhan, was competent to sell, mortgage and deal with the property as his property in the manner he liked. Had he done so before the birth of plaintiff, Rohit Chauhan, he was not competent to object to the alienation made by his father before he was born or begotten. But, in the present case, it is an admitted position that the property which defendant no. 2 got on partition was an ancestral property and till the birth of the plaintiff he was sole surviving coparcener but the moment plaintiff was born, he got a share in the father’s property and became a coparcener. As observed earlier, in view of the settled legal position, the property in the hands of defendant no. 2 allotted to him in partition was a separate property till the birth of the plaintiff and, therefore, after his birth defendant no. 2 could have alienated the property only as Karta for legal necessity. It is nobody’s case that defendant no. 2 executed the sale deeds and release deed as Karta for any legal necessity. Hence, the sale deeds and the release deed executed by Gulab Singh to the extent of entire coparcenary property are illegal, null and void. However, in respect of the property which would have fallen in the share of Gulab Singh at the time of execution of sale- deeds and release deed, the parties can work out their remedies in appropriate proceeding.- In the result, we allow this appeal, set aside the judgment and decree of the lower appellate court as affirmed by the High Court and restore that of the trial court with the liberty aforementioned. In the facts and circumstances of the case, there shall be no order as to costs.

published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40554 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5475 OF 2013 (@ SLP (C) No. 22388 of 2011) ROHIT CHAUHAN …APPELLANT VERSUS SURINDER SINGH & ORS. …RESPONDENTS JUDGMENT CHANDRAMAULI KR. PRASAD,J. Sole plaintiff Rohit Chauhan is the appellant before us. His grandfather Budhu had three sons, namely, Gulab … Continue reading

service matter = Application of an erroneous “Model Answer Key” for evaluation of answer scripts of candidates appearing in a competitive examination is bound to lead to erroneous results and an equally erroneous inter-se merit list of such candidates. That is precisely what appears to have happened in the present appeals which arise out of a common judgment delivered by the High Court of Judicature at Patna whereby the High Court has directed the Bihar Staff Selection Commission to conduct a fresh examination and re-draw the merit list on that basis. For those who have already been appointed on the basis of the earlier examination, a fresh examination has been directed by the High Court before they are finally ousted from the posts held by them. The appellants who happen to be the beneficiaries of the erroneous evaluation of the answer scripts have assailed the order passed by the High Court in these appeals – In the result, we allow these appeals, set aside the order passed by the High Court and direct that – (1) answer scripts of candidates appearing in ‘A’ series of competition examination held pursuant to advertisement No. 1406 of 2006 shall be got re-evaluated on the basis of a correct key prepared on the basis of the report of Dr. (Prof.) CN Sinha and Prof. KSP Singh and the observations made in the body of this order and a fresh merit list drawn up on that basis. (2) Candidates who figure in the merit list but have not been appointed shall be offered appointments in their favour. Such candidates would earn their seniority from the date the appellants were first appointed in accordance with their merit position but without any back wages or other benefit whatsoever. (3) In case writ petitioners-respondent nos. 6 to 18 also figure in the merit list after re-evaluation of the answer scripts, their appointments shall relate back to the date when the appellants were first appointed with continuity of service to them for purpose of seniority but without any back wages or other incidental benefits. (4) Such of the appellants as do not make the grade after reevaluation shall not be ousted from service, but shall figure at the bottom of the list of selected candidates based on the first selection in terms of advertisement No.1406 of 2006 and the second selection held pursuant to advertisement No.1906 of 2006. (5) Needful shall be done by the respondents – State and the Staff Selection Commission expeditiously but not later than three months from the date a copy of this order is made available to them. 20. Parties are directed to bear their own costs.

  Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 2525-2516 OF 2013 (Arising out of S.L.P. (C) Nos.5752-53 of 2008 Rajesh Kumar & Ors. etc. …Appellants Versus State of Bihar & Ors. etc. …Respondents With CIVIL APPEAL NO. 2517 OF 2013 (Arising out of SLP (C) No.6456 of 2008) … Continue reading

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