SUPREME COURT

• CRIMINAL LAWS

Rabindra Kumar Pal @ Dara Singh vs. Republic of India (Decided on 21.01.2011) MANU/SC/0062/2011

Conviction - Triple murder of an Australian Christian Missionary and his two minor sons - Death sentence as awarded by Trial Court commuted into life imprisonment

Held, based on materials clearly available on record, the High Court rightly arrived at its conclusion. There was no material to prove conspiracy charge against any of the accused. However, as pointed out by the High Court, even in the midst of uncertainties, the witnesses have specified the role of (A1) and (A3) and accordingly conviction of the Appellant Dara Singh (A1), Mahendra Hembram (A3) and the sentence of life imprisonment imposed on them maintained. In the same way, in the absence of acceptable materials and in view of the various infirmities in the prosecution case as pointed out by the High Court, the order of acquittal of others who are all poor tribals confirmed.

Manjit Singh @ Mange vs. CBI, through its S.P. (Decided on 25.01.2011) MANU/SC/0067/2011

Appeals against the judgment and order of learned Designated Court (TADA) under Section 19 of the TADA Act -Whether confession of an accused can be used against the Accused as well as other co-accused, even if they are acquitted for offences under the TADA Act - Determination thereof

Held, in the present case, the question that needs to be answered is the admissibility of such confession against the co-accused not charged under the TADA Act. The confessional statement recorded under Section 15 of the TADA Act was admissible against co-accused, abettor or conspirator provided such accused tried with the other co-accused or abettor or conspirator in the same trial in respect of offence under the TADA Act and not otherwise.

The language of Section 12 clearly states that in the course of any trial under the TADA Act of any offence, if it is found that the accused person has committed any other offence either under this Act or any other law, the Designated Court (TADA) may convict such person of such other offence and pass any sentence authorized by this Act or such other law, for the punishment thereof. Section 15 of the TADA Act, after its amendment, authorizes the Designated Court to use the confession statement of one accused against another accused only when the co-accused is charged in the same case along with the confessor and is tried together with the confessor in the same case. The language of these two Sections is clear and unambiguous. In any case, it would lead to absurdity for a court to rely on confessions of the maker against himself, and not against another person, when such other person features prominently in the confessional statement, in a joint trial of offences for the same criminal act, especially in circumstances when there is independent incriminating evidence.

Thus the confessional statement made by a person under Section 15 shall be admissible in the trial of a co-accused for offence committed and tried in the same case together with the accused who makes the confession.

As evident in the instant case the intention of the accused was not to cause terror but to prevent information regarding another crime from being divulged. The TADA Court was justified in dismissing the charges framed under the TADA Act. Therefore, appeals filed by the State for enhancement of sentence was dismissed.

• INDIRECT TAXATION

Customs

Commissioner of Customs (Import) Vs. Stoneman Marble Industries and Ors. (Decided on 21.01.2011) MANU/SC/0063/2011

Confiscation of Goods imported - Redemption fine and penalty imposed under Sections 125 and 112(a) of the Customs Act, 1962 respectively - Amount subsequently reduced by CESTAT - Application by Revenue under Section 130A rejected vide impugned order on the ground that no question of law arose from the orders of the Tribunal

Held, Revenue contended that the Tribunal could not lay down a standard formula for the computation of redemption fine and penalty as facts and circumstances of each case have to be examined independently and it was only required to examine whether or not the Commissioner had exercised his discretion correctly on the facts and circumstances of each of the cases.

As per Section 130A clearly it is for the party applying for reference to clearly state the question of law which he seeks to be referred to the High Court and then it is for the High Court to consider whether any such question of law stated in the application for reference before it should be directed to be referred. As can be seen from the format of the questions proposed by the Revenue for reference, the Revenue did not assail the Tribunal's finding to the effect that the facts in the instant cases were similar to those in the case referred therein. Unless the correctness of facts, on the basis whereof an inference is drawn by the Tribunal, is put in issue, a question of law does not arise from its order.

The only jurisdiction of the High Court in a reference application is to answer the questions of law that are placed before it. It is only when a finding of the Tribunal on fact is challenged as being perverse that a question of law can be said to arise. Thus, the High Court correctly held that the questions raised by the Revenue for reference could not be said to be questions of law.

• SERVICE TAX

Union of India and Ors. Vs. Home Solution Retail India ltd. and Ors. (Decided on 24.01.2011)

Service Tax - Renting of immovable property - Appeal against order of the High Court of Delhi before the Apex Court

Held, the Apex Court has adjourned the matter with direction to list the petition titled as Union of India vs. UTV Software Communications Ltd. moved against the impugned finding of Delhi High Court. The present appeal directed to be heard with all other appeals filed in regard to similar issue. It was mentioned that in some of the matters, pleadings are to be completed and accordingly, the counter affidavit in those cases may be filed within three weeks and rejoinder could be filed within three weeks thereafter. The Transfer petitions seeking for transfer of petitions pending in the various High Courts and writ petition to be re-notified after four weeks.

• CIVIL LAWS

Samittri Devi and Anr. Vs. Sampuran Singh and Anr., (Decided on 21.01.2011) MANU/SC/0064/2011

Recovery of house property - Whether the suit of the first Appellant for the recovery of her house property filed prior to the Benami Transactions (Prohibition) Act, 1988 coming into force could be considered to be prohibited by Section 4 of that Act

Held, as far as the purchase of the suit house by the Appellant No. 1 from her own money is concerned that finding of the Trial Court has remained undisturbed all throughout and cannot be re-opened in this appeal. The Appellant No. 1 led cogent evidence before the Trial Court, and it had been held in her favour that it is out of her funds that she had purchased the suit house.

Once the High Court held that the Appellant had purchased the suit house out of her funds, it ought to have held that it follows that the Defendant No. 2, in the instant case had no right to deal with it or to sell his half share merely because his name was shown as a purchaser alongwith the Appellant No. 2. Consequently the purchase of the share of the Defendant No. 2 by the Respondent No. 1 herein without the consent of the Appellant No. 1 gave him no rights whatsoever. Therefore, the High Court ought to have held that the suit of Appellant No. 1 for declaration of her ownership to be valid and maintainable.

The High Court has clearly erred in ignoring the binding judgment of a Bench of three Judges of this Court in R. Rajagopal Reddy case, whereby it was held that suits filed prior to the application of the Act would not be hit by the prohibition under Section 4 of that act.

The judgment of the High Court, therefore, deserves to be set aside.

• LIMITATION/ CIVIL LAWS

Hari Ram Vs. Jyoti Prasad and Anr., (Decided on 27.01.2011) MANU/SC/0068/2011

Encroachment on public property - Maintainability of Suit challenged on the ground of same being barred by Limitation and also liable to be dismissed on the ground of non-compliance of the provisions of Order 1 Rule 8 of the Code of Civil Procedure, 1908 - Determination thereof - Contentions raised that despite the fact that a specific stand was taken in the written statement with regard to limitation, Trial Court neither framed any such issue nor rendered any decision and High Court also dismissed the plea on the ground that the cause of action is a continuing cause of action

Held, the records placed disclosed that a plea was taken in the written statement that the suit is barred by limitation. However, despite the said fact no issue was framed nor any grievance was made by the Appellant for non-framing of an issue of limitation. Such a plea is seen to have been made before the High Court and the same was considered at length by the High Court, which held that although such a plea was not raised either before the Trial Court or before the Appellate Court, the same could be raised before the High Court in view of the provisions of Section 3 of the Limitation Act which places an obligation upon the Court to discuss and consider such a plea despite the fact that no such plea was raised and argued before the Trial Court as also before the First Appellate Court.

The High Court after considering the aforesaid plea held that the suit cannot be said to be barred by limitation as an encroachment on a public street is a continuing wrong and therefore, there exists a continuing cause of action.

It was further held that the dispute between the parties could be better resolved if a proper civil suit is filed and when evidence is led with regard to the disputed questions of fact. Immediately thereafter the suit was filed seeking issuance of a mandatory injunction. In view of the aforesaid facts and also in view of the fact that encroachment on a public street by any person is a continuing cause of action, contentions raised held to be devoid of merits.

Any act of encroachment is a wrong committed by the doer. Such an encroachment when made to a public property like encroachment to public road would be a graver wrong, as such wrong prejudicially affects a number of people and therefore is a public wrong. So long any obstruction or obstacle is created to free and unhindered access and movement in the road, the wrongful act continues thereby preventing the persons to use the public road freely and unhindered. Therefore, that being a continuing source of wrong and injury, cause of action is created as long as such injury continues and as long as the doer is responsible for causing such injury.

An aggrieved person, who's right to use Public Street of 10 feet width was prejudicially affected, filed the suit. Since affected person himself has filed a suit, therefore, the suit cannot be dismissed on the ground of alleged non-compliance of the provisions of Order I Rule 8 of the CPC.

• SERVICE LAWS

Jiten Kumar Sahoo and Ors. Vs. Chief General Manager Mahanadi Coalfields Ltd. and Ors. (Decided on 27.01.2011) MANU/SC/0069/2011

Appellants preferred the present appeals because consequent upon the judgment and order passed by the High Court of Orissa at Cuttack, they are likely to lose their job of more than 14 years with the Mahanadi Coalfields Limited (MCL), a Government of India undertaking - High Court vide its judgment held that MCL ought to have filled up the newly sanctioned 51 posts of Mazdoor - Category I (I.T.I.) from the merit list prepared earlier strictly in the order of merit and no preference could have been given to those who had undertaken apprenticeship with MCL and accordingly directed MCL to fill up 51 posts strictly in the order of merit as per the select list prepared earlier

Held, the appeals as held by the Apex Court have to be allowed. There was no dispute of fact that the Appellants herein were not initially impleaded as party Respondents in the writ petitions although primary relief in the writ petitions was to quash their selection and appointments. The Appellants were impleaded for the first time after ten years or so. By that time the Appellants got promoted from Mazdoor Category-I to Mazdoor Category-II and then to Mazdoor Category-III and thereafter to the posts of Fitter. In view of these circumstances, the writ Petitioners were not entitled to any discretionary relief by the High Court in exercise of its extraordinary jurisdiction.

The Petitioners though had the knowledge of the appointment, posting, continuance in service and subsequent promotions of the Opposite Parties had not challenged the same for about 10 (Ten) years and have acquiescence their claim and waived their claim if any. The Petitioners were thus estopped by acquiescence, waiver, conduct and by negligence to challenge the appointment of the Opp. Parties who are discharging their duties sincerely to the best satisfaction of the authority being selected and appointed to the post for about ten years.

The High Court unfortunately failed to take into consideration the material aspects stated in the counter affidavit filed by the Appellants. If the order of the High Court is allowed to stand, it would not only affect the Appellants who, during the continuation of their service, had got three promotions, but also will seriously affect the persons who have been appointed in their place and were not impleaded before the High Court.

The appeals are, accordingly, allowed and the impugned judgment set aside.

HIGH COURT

• MOTOR VEHICLE LAWS

DELHI HIGH COURT

National Insurance Company ltd. Vs. Hari Om & Anr. (Decided on 20.01.2011) MANU/DE/0110/2011

Determination of Compensation - Reliability on Disability Certificate - Section 4(1)(c) - Section 2 (1)(I) -Section 4(1)(c) and 4(1)(d) of the Workmen's Compensation Act, 1923 - Whether the Commissioner correctly relied on the disability certificate issued by a medical practitioner unless it is duly proved as per law specifically when the certificate issued by the Medical Board of a Government Hospital was on record according to which the respondent claimant has sustained the disability to the extent of 13 per cent only and Whether the Commissioner could have passed the award for 100 per cent loss of earning capacity, specifically when there was a certificate on record issued by the medical board of a Government Hospital according to which the respondent claimant has sustained the disability to the extent of 13 per cent only?

Held, the certificate issued by the qualified medical practitioner was the only certificate which could have been taken into consideration by the concerned Commissioner and the said certificate has been rightly taken into consideration by the Commissioner for deciding the quantum of disability by the Respondent. Hence, the calculation of the compensation by the Commissioner in this case was appropriate and did not call for any interference.

If the workman is unable to perform his duties as he was performing on the day of accident, his loss of earning capacity should be taken as 100 per cent irrespective of the percentage of disability sustained by the workman. In the instant case applicant sustained injuries out of and during the course of employment and by virtue of injury caused to claimant due to accident, he is incapable of doing the work of driving and assessed as he lost 100 per cent earning capacity by the doctor under the Act. Hence, as per various provisions of the Workmen's Compensation Act, the notification issued by the competent authority regarding Qualified Medical Practitioners, the certificate given in this case by the Qualified Medical Practitioner as noted by the Commissioner, the judgments cited no infirmity in the impugned order passed by the Commissioner. Appeal dismissed

• INTELLECTUAL PROPERTY LAWS

DELHI HIGH COURT

Hindustan Sanitary Ware and Industries Ltd. Vs. Champion Ceramic (Decided on 18.01.2011) MANU/DE/0094/2010

Trade Marks - Infringement of Trade Mark - Suit for injunction on ground of being deceptive similar - Section 17 of the Trade Mark Act along with Section 29 of the Trade Mark Act, 1999 - Whether Himware and and Hindware are deceptively similar hence injunction should be granted to the Appellants

Held, there is some phonetic similarity between Hind ware and Him ware but when the entire trade mark of the Appellant is compared with the trade mark of the Respondent the similarity goes. When the trade marks are put to the test of being considered from point of view of a man with average intelligence and imperfect re-collection, it does not get proved that the trademark of the Respondent is deceptively similar to the trade mark of the Appellant. Appeal dismissed.

• SERVICE LAWS

ALLAHABAD HIGH COURT

Dileep Sharma and Ors. Vs. State of U.P. and Ors. (Decided on 17.01.2011) MANU/UP/0047/2011

Claim of Compassionate Appointment - Denial of - Uttar Pradesh Recruitment of Dependant of Government Servants Dying in Harness Rule, 1974 - Petitioners denied compassionate appointment on the post of Sub-inspector but were appointed as Constables - Hence this appeal

Held, 1974 Rules provides for compassionate appointment to a person against a post available for direct recruitment in class III and Class IV post. The Respondents could not show that the Recruitment Board was competent to take such decision which has the effect of amending the Rules which should be adhered to by the Respondents. In order to deny Petitioners' claim in accordance with 1974 Rules as they stand as on date, unless there is an amendment in the rules, the Respondents cannot proceed only on the proposal. No justification on the part of Respondent No. 3 to refuse to consider Petitioners for appointment directly on the post of S.I./P.C. under 1974 Rules. Respondent No. 3 directed to consider the Petitioners for appointment on compassionate basis in accordance with law. Appeals allowed accordingly.

• CIVIL LAWS

BOMBAY HIGH COURT

Atchut Shirodkar Vs. M/s Dias Luis & Associates, Goa and Ors. (Decided on 19.01.2011) MANU/MH/0048/2011

Recovery Suit by non-partner-Trial Court passed decree in favour of plaintiff-order reversed by lower appellate court-Issues before High Court- Whether Section 69 of the Indian Partnership Act was applicable to the case as the Appellant/plaintiff was neither a partner/ nor he claimed to be a partner of the Respondent/defendant- Whether Lower Appellate Court was right in holding that the declaration cum receipt produced by the Plaintiff was vague and hit by Section 29 of the Indian Contract Act

Held, from the plain reading of the Section 69(1) and (2), it is clear that both subsections of Section 69 are not attracted in as much as the suit was not filed by the Plaintiff claiming to be partner of Defendant No. 1- firm. Therefore, the finding recorded by the Lower Appellate Court that the suit was not maintainable in view of Section 69 of the Act is patently unsustainable in law and is set aside.

The said document can neither be termed as vague and/ or hit by Section 29 of the Indian Contract Act. Terms therein are quite certain and establish the liability of the Defendants to pay an amount of Rs. 20,000 to the Plaintiff. Therefore, the Lower Appellate Court was not justified in reversing the finding of the Trial Court.

• BANKING LAWS

BOMBAY HIGH COURT

Clarity Gold Pvt. Ltd. and Ganga Devi Gupta Vs. State Bank of India and Ors. (Decided on 20.02.2011) MANU/MH/0051/2011

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002- Bank had taken possession of the secured asset under Section 13(4) of the Act- Whether notice under Section 13(2) was validly served-Whether reply to the notice was dealt as per Section 13(3A) of the Act- Whether notice of possession was validly served on the Second Petitioner who is the owner or on the First Petitioner who is the borrower-Whether taking of possession of the bank was contrary to law as Section 14 of the Act which required moving the Chief Metropolitan Magistrate was not met -Debts recovery Tribunal passed an order in favour of the Petitioner which was reserved by the Appellate tribunal

Held, there was valid compliance with the requirement of Section 13(2) and the Rules in regard to the service of notice under Section 13(2) of the Act but the notice of sale was not validly issued. As regards Section 13(3A), every prescription of a period within which an act has to be done does not constitute a prescription of a period of limitation, a failure of compliance with which would render the action invalid. Therefore, failure of the secured creditor to deal with the representation within a period of one week does not render the disposal of the representation invalid.

Further, though Section 14 is an enabling provision, it will be wholly impermissible for a secured creditor to take the law into his own hands and to forcibly evict a borrower from the secured asset. In the instant case, whether the secured creditor took forcible possession is essentially a question of fact to be determined by the Appellate Tribunal that has a fact finding jurisdiction. There being no finding of the Appellate Tribunal in that regard, proceeding remitted back to the Appellate Tribunal.

• LAW OF EVIDENCE

BOMBAY HIGH COURT

Mahadev Sajro Shet Talpy and Ors. Vs. Babaji Sagun Talpy and Ors. (Decided on 12.01.2011) MANU/MH/0022/2011

Non-consideration of documentary evidence - Property Suit-Appeal from Decree or First Appeal - Dismissal of appeal by Lower Appellate Court - Challenge against thereto -Order by lower courts was passed without critically analyzing the documentary evidence submitted by the parties and considering their legal effect-Appeal filed

Held, the Lower Appellate Court while dealing with appeal from a decree, has to critically analyze the evidence, oral and documentary evidence led by both the parties and after considering the reasons given by the Trial Court, arrive at a decision by following the settled principles of interference by the first Appellate Court. In the instant case, indisputably, such an exercise has not been done by the Lower Appellate Court. Therefore, impugned judgment and decree is quashed and set aside and the matter is remanded to the Lower Appellate Court for fresh decision. No order passed on the merits of the case.

TRIBUNALS

• TAXATION LAWS

ITAT, Mumbai

Shri Pawan Kumar Parmeshwarlal Vs. ACIT 4(2), Mumbai (Decided on 11.01.2011) MANU/IU/0009/2011

Disallowance of business expenses in relation to personal income under Income Tax Act- Whether the A.O was justified in (i) applying Sec 14A and Rule 8D in disallowing the expenditure from earning interest from incomes and (ii) disallowing entire claim of bad debts as irrecoverable advances or losses

Held, With respect to issue (i), the CIT(A) accepted the submission of the assessee that earning of dividend and interest did not involve any expenditure and hence there was no need to make a disallowance under section 14A. Just like expenditure of personal nature cannot be disallowed from income from business, the expenditure claimed in business cannot be correlated to incomes earned in personal capacity.

With respect to issue (ii whether the debt is to be claimed as bad debt or not depends upon the satisfaction of the Section 36(2), clause (i). In this case, the amounts advanced by the assessee in the course of business were treated as allowable amount under 36(2). The claim for bad debt was to be allowed. In effect, the appeal of the assessee was allowed.