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Judgments
Kunj Behari Mehta and Another vs Ansal Properties and Industries Limited
[NATIONAL CONSUMER DISPUTE REDRESSAL COMMISSION, 12 May 2008]
Can a builder after agreeing to deliver the possession within a stipulated time, raise a contention that as the price of the flat/property has gone up, it should not be directed to pay any compensation or to pay compensation at reduced rate for delay in delivering the possession of the property? - Held, contention that there is increase in the price of the property and, therefore, compensation for such inordinate delay in delivery of possession should not be granted, is totally misconceived - If the price of an immovable property increases, it cannot be said that the parties are not required to abide by their contractual obligations - It is the luck of the Complainants that the price of the property has increased and it cannot be said that it is for the benefit of the vendor - Builder/vendor of the property cannot claim advantage on account of increase in price after sale - Opposite Party is required to pay compensation for unjustifiably not delivering the possession of the flat as per the agreement in October 1998 till December, 2007 - Appeal partly allowed.
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Atul Nanda and Another vs Reserve Bank of India and Others
[NATIONAL CONSUMER DISPUTE REDRESSAL COMMISSION, 12 May 2008]
Application to give Banks opportunity to file necessary affidavits in matter adjourned to 26th May 2008 on question "whether a consumer, who suffers in case when the cheque deposited by him for collection of amount is honoured by the drawer bank and the information is received by the drawee bank, should get interest or whether no interest is payable to him by either of the banks because it is a transit loss?" - Held, Banks are directed to supply a copy of the affidavit to the learned counsel for the RBI at least 2 days in advance - Application allowed.
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Consumer Education and Research Society and Others vs Ahmedabad Municipal Corporation and Others
[NATIONAL CONSUMER DISPUTE REDRESSAL COMMISSION, 30 Apr 2008]
Consumer Protection Act, 1986 - Application with regard to supply of and getting of pure drinking water - Complainants submitted that jaundice epidemic occurred because of the contaminated supply of drinking water by Ahmedabad Municipal Corporation which is responsible for supply of water, repair and maintenance of pipelines and drainage facilities, and epidemics of water borne diseases were regular occurrence in Ahmedabad - Held, higher officers are supervising the pipelines periodically to avoid any contamination and also take remedial steps like washout and flush out and de-silting and curing corrosion from the pipelines - One of the functions of the State Consumer Protection Council is to see that the consumer is informed, inter alia, about the quality, quantity and purity of the water and services rendered by the authority including the AMC and that is not hazardous to life or health - Directions issued that officers of the Municipal Corporation shall comply with the office order for fortnightly inspection of water tanks and file a fortnightly testing report of the water supplied from the source, AMC to adhere to the WHO's guidelines namely preventive management "framework for safe drinking water" - Application disposed of.
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Padma Ramanathan vs National Insurance Company Limited
[NATIONAL CONSUMER DISPUTE REDRESSAL COMMISSION, 29 Apr 2008]
Whether death caused due to drowning in a swimming pool can be considered to be 'accidental death' in terms of the insurance policy, which provides that the Insurance Company will pay to the insured or his LR 'if at any time during the currency of this policy the insured shall sustain any bodily injury resulting solely and directly from accident caused by external, violent and visible means'? - Held, death caused to the insured is an accidental death as it was not natural and that the insured did not intend to die by drowning - Violent means includes any external, impersonal cause, such as drowning or inhalation of gas or even undue exertion on the part of the assured, in such cases, the death is not due to internal cause and that any cause which is not internal must be external, but this does not mean that the injury must be external - Petition allowed.
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Brigadier Sreedharan Vijay Kumar vs Union of India and Others
[DELHI HIGH COURT, 23 Apr 2008]
Petition for issuance of writ of mandamus directing respondents to put up the case of the petitioner before the next Select Board for consideration of promotion to the post of Major General without taking into consideration grading and notings of the RO and if petitioner was found meritorious on comparative merits, he to be made entitled to all the consequential reliefs with continuity of service for the remaining period of service - All gradings of petitioner found to be 8 or above - Held, there is difference in the recording of grading for personnel and demonstrated performance between IO and RO - Period when the concerned officer was examining the case for censure is the same when the CR was being written, both have happened almost simultaneously - It would be natural for the officer concerned who is endorsing a censure to make appropriate gradings while assessing the profile of the officer and that is what appears to have happened whereby the RO has given lower gradings for individual traits of the officer arising from his mental frame where he perceived that the officer deserved the censure - Petition allowed.
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Lal Kanhaiya Lal and Company vs Union of India
[DELHI HIGH COURT, 23 Apr 2008]
Appeal filed u/s. 23 of the Railway Claims Tribunal Act, 1987 to challenge order assessing damages to the appellant as Rs.48, 206/- taking market rate of the Urad dal at the relevant time as Rs.567.50/- per quintal as published in newspaper and holding that appellant was only entitled to balance sum of Rs. 5, 068/- from respondent as he had already a received a sum of Rs.48, 138/- - Held, rates published in the newspapers as adopted by the Tribunal is an extrinsic evidence - Where intrinsic evidence is readily available the Courts should rely upon the intrinsic evidence and eschew extrinsic evidence - Tribunal was not right in adopting the rates published in the newspapers as the market rate of the Urad dal particularly when the testimony of the witness of the appellant and documents proved by him in respect of market rate of the Urad dal at the relevant time has gone unrebutted - Petition allowed.
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Chuni Lal Rajnish Kumar vs Union of India
[DELHI HIGH COURT, 23 Apr 2008]
Appeal to challenge order dismissing claim application - Tribunal noted that in the forwarding note the word 'jawar' was also written in the column when goods were described and that above the word 'jawar' the word 'gram' was written and there was no reason for the railway officials to tamper with the document and that document probablizes that the word 'jawar' was written by the consignor - Appellant contended that forwarding note clearly evidenced that the goods entrusted were gram and somebody had later on interpolated the word jawar on the forwarding note - Recording in RR showed that the goods consigned were gram - Held, a fact is best perceived by the senses - Perusal of forwarding note shows that the word 'jawar' written in Devnagari script is in a completely different handwriting viz-a-viz the handwriting in which the remaining columns of the forwarding note have been filled - Difference in the colour of the ink also shows that the entire forwarding note save and except the word jawar has been filled up by one pen and the word jawar has been written by use of another pen, it is thus obvious that somebody later on interpolated the forwarding note - Tribunal has ignored a material circumstance and has probablized fact ignoring the said material circumstance - Pertaining to appreciation of facts, if the court of original jurisdiction eschews material evidence or ignores a material circumstance, the Appellate Court would be fully justified in taking corrective action - Appeal allowed.
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National Institute of Public Co-Operation and Child Development vs Union of India and Others
[DELHI HIGH COURT, 22 Apr 2008]
Industrial Disputes Act, 1947 - Application filed u/s. 17B of the Act to avail benefits as per rules under the Act - Award directing petitioner's reinstatement with full back wages stayed by order of Court - Management contended that it was not an industry - Whether the award suffered from such jurisdictional error which disentitled applicant for order u/s. 17B of the Act? - Held, statutory provisions provide no inherent right of assailing an order or an award by an industrial adjudicator by way of an appeal - Payment which is required to be made by the employer to the workman has been held to be akin to a subsistence allowance which is neither refundable nor recoverable from a workman even if the Award in his favor is set aside by the High Court - Right of a workman to an amount equivalent to the wages notified under the Minimum Wages Act, 1948 is thus, in fact, recognition of the constitutional mandate; full wages last drawn can therefore only mean all the wages that have fallen due at least from the date of the Award - Relying on the test laid down in Bangalore Water Supply that there is a systematic activity organized by Corporation between the employer and employee for the production and/or distribution of goods and services, calculated to satisfy human wants and wishes, it has been held that the petitioner is an industry thus relief u/s. 17 B of the Act cannot be denied to the applicant/respondent no.4 - Application allowed.
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Swarn Malhotra vs Vishnu Puri and Others
[DELHI HIGH COURT, 22 Apr 2008]
Objections filed to nullify auction sale on ground that auction ordered by Court was not in accordance with law and beyond the jurisdiction of the Court - Plaintiff submitted that auction of the property which was subject matter of partition could be ordered only after final decree of the partition had been drawn and where no final decree of partition had been drawn, an auction cannot be ordered and if it is ordered, it was without jurisdiction and the auction should be declared null and void - Held, after unsuccessful challenge to the order of Division Bench, the property was put to auction; entire process of auction had already taken place at great expense and spending of time by the Court and Court Commissioner - Plaintiff has again raised same objection against the auction sale of the property on the basis of which plaintiff had filed SLP before the Hon'ble Supreme Court and failed - Objections have been filed with malafide intention of dragging the matter - Application dismissed with costs.
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Vanishree Enterprises vs Bses Rajdhani Power Limited
[DELHI HIGH COURT, 22 Apr 2008]
Writ petition to challenge arrears of electricity bill charged by respondent - Respondent submitted that letting out of premises by petitioner amounted to subletting and constituted misused but no show cause notice was issued before bill for misuse charges was raised - Held, levying of charges without issuing show-cause notice would be violative of the principles of natural justice - Use of electricity connection by a tenant has not been designated as misuse in the Clause 3.8.1 of Tariff Schedule of 2001 and Clause 3.9.(ii) do not apply when a property with an electricity connection is rented out to a tenant - Clauses 3.8.1 and 3.9.(ii) of Tariff Schedule of 2001 may not have retrospective effect and do not relate to the entire period for which misuse charges have been claimed - Impugned demand of Rs.1, 38, 558.66 towards misuse charges for the period 4th December, 1998 to 3rd November, 2001 is quashed - Petition disposed of
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Pawan Hans Helicopters Limited vs Aes Aerospace Limited
[DELHI HIGH COURT, 22 Apr 2008]
Arbitration and Conciliation Act, 1996 - Petition filed u/s. 9 of the Act to restrain respondent or its agents from alienating, encumbering suit goods and in allowing the petitioner to remove the said goods from the warehouse of M/s Sagar Warehousing Corporation - Petitioner had agreed to sell its goods to respondent and M/s Fly Jac Forwarders Traders was appointed as the 'approved transporter' by the respondent as per agreement who took delivery from New Delhi from the petitioner for shipment at Mumbai but because of certain delays allegedly on behalf of the respondent, it did not take the goods for shipment at Juhu Airport, Mumbai and temporarily moved the same to a warehouse owned by M/s Sagar Warehousing Corporation - Held, petitioner does not have any privity of contract with either M/s Fly Jac Forwarders Transporters or M/s Sagar Warehousing Corporation therefore question of the petitioner being liable for the charges sought to be raised by M/s Fly Jac Forwarders Transporters and / or by M/s Sagar Warehousing Corporation does not arise - Agreement dated 16.06.1999 alongwith its addenda would only be regarded as an agreement to sell within the contemplation of Section 4 (3) of the Sale of Goods Act, 1930 and not as a sale - No sale has taken place and, therefore, the petitioner continues to have title over the goods in question even though the same are not in its possession - A person cannot have lien on his own goods - Although the petitioner cannot exercise any lien in respect of the said goods, nor can it ask for stopping the goods in transit as contemplated u/s. 46 (1) (b), the petitioner can certainly ask for the return of the goods being the owner thereof because no sale has taken place and the respondent is not interested in completing the sale - Petition disposed of
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Raj Karan vs Cogent Ventures (India) Limited
[DELHI HIGH COURT, 22 Apr 2008]
Application u/s. 8 of the Arbitration and Conciliation Act, 1996 by invoking provisions of O. 7, r. 11 CPC for referring dispute in the suit filed for decree of possession of suit property to arbitration - Defendant submitted that plaintiff had not revealed material facts relating to the lease deed and existence of arbitration clause in it and claimed that the disputes in the suit ought to be referred to arbitration in accordance with the clause 11 of the deed - Plaintiff contended that Court could not refer the disputes to arbitration since the lease deed upon which the defendant-applicant relied was unregistered document - Held, irrespective of clause 11 of the lease deed, which is unregistered in this case, disputes cannot be referred to arbitration - Application dismissed.
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Anant Raj Agencies Private Limited vs Narang Industries Limited
[DELHI HIGH COURT, 21 Apr 2008]
Application under O. I, r. 10 CPC to seek impleadment of a subsequent purchaser of property in a suit for specific performance - Plaintiff, who set up an oral agreement of May, 2000 was made aware about the transaction with the proposed defendant/respondent sometime in January, 2002, yet it chose not to take steps for impeaching the said transaction or to implead the said third party in the suit within reasonable time and after five years application was filed with only explanation that plaintiff had to change its counsel and necessary averments had not been made - Held, explanation can hardly be called sufficient, muchless satisfactory, on an overall conspectus of circumstances, no case has been made out to grant the relief claimed in the application - Application dismissed.
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Nanak Builders and Investors Private Limited vs Lakhbir Sawhney and Others
[DELHI HIGH COURT, 21 Apr 2008]
Application for impleadment filed on behalf of Thomson press (India) Ltd. claiming that applicant is the owner in respect of suit property - Applicant claimed that the suit property was sold to the applicant by the defendants by sale deeds - Division Bench in Sanjay Gupta v. Smt. Kala Wati held that in a suit for specific performance the Court has to decide the existence of an agreement between the parties and if the agreement is found to be valid in law and enforceable, the Court will grant a decree for its performance and since appellant in that case was nowhere mentioned in the agreement which was the subject matter of the suit for specific performance Division Bench observed that third party like the appellant therein need not to be impleaded as a party in a suit for specific performance as such a person was neither a necessary nor a proper party - Held, application is entirely covered by said decision, thus application for impleadment would not be maintainable - Application dismissed.
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Supercassette Industries vs Nirulas Corner House Private Limited
[DELHI HIGH COURT, 17 Apr 2008]
The Judgment was delivered by : HON'BLE JUSTICE S. RAVINDRA BHAT1. This order shall dispose off I.A. No. 10742/2007 preferred under Order VII Rule 11 by the applicant defendant seeking the rejection of the plaint and also I.A. No. 6882/2007 under
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Mani Shandly and Another vs State and Another
[DELHI HIGH COURT, 11 Apr 2008]
Petition filed to challenge order dismissing application filed for cancellation of NBWs and for restoration of the personal bonds and surety bonds - Petitioners charged u/ss. 347/461 of the Delhi Municipal Corporation Act and order passed forfeiting personal bonds and surety bonds and issuing NBWs on ground of non appearance of petitioners on next date of hearing - Trial court held that since accused had come to court knowing that their counsel was out-of-station, the counsel must have informed the petitioners of the next date of hearing and his non-availability and thus it must be implied that they were aware of the next date of hearing - Held, non-presence should not result in issuance of NBWs straightaway when issuance of bailable warrants could secure the presence of the petitioners - Trial court must take into consideration the important aspects such as the past conduct of the accused, the nature of offence or the failure to appear in pursuance to the order of summoning - When issuance of summons or bailable warrants would suffice, there is no necessity to issue NBWs as it involves interference with personal liberties of persons - Trial court in such cases must endeavour to secure presence and issue bailable warrants in case of such one time default before resorting to the process of issuance of non-bailable warrants - Petition allowed.
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Commissioner of Income Tax Delhi-Xiii, New Delhi vs Yogender Sharma, E-34, Krishan Nagar, Delhi
[DELHI HIGH COURT, 11 Apr 2008]
Income-tax Act, 1961 - s. 32A - Whether ITAT was correct in law in directing the ITO to grant investment allowance on purchase of X-ray machine to the assessee, practicing Radiologist, in terms of s. 32A of the Income-tax Act, 1961? - Held, expression industrial undertaking must be read in the context of the Income Tax Act and not in the context of the Industrial Disputes Act - Machinery or plant must be installed first of all in a small scale industrial undertaking and secondly it must be used for the purposes of business of manufacture or production of any article or thing - It may be that a machine or a plant within a clinic or a hospital or a diagnostic centre may manufacture or produce an article or thing; but that would not convert a clinic or a hospital or a diagnostic centre into an industrial undertaking; primary condition is not met inasmuch as the clinic of the Assessee cannot be said to be an industrial undertaking, if that be so, it is of no consequence whether the X-ray machine manufactures or produces an article or a thing - Petition disposed of.
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Harish K. Dogra vs Union of India and Others
[DELHI HIGH COURT, 11 Apr 2008]
Writ petition to seek writ of certiorari for quashing order dismissing original application filed to challenge order recalling petitioner compulsorily from his posting at New Zealand as High Commissioner of India - Tribunal concluded that order of recall was in accordance with para 8(2)(1) of Annexure 12 to the Indian Foreign Service (Pay, Leave and Compulsory Allowances) Rules - Held, decision to recall under para 8(2) (i) of the IFS(PLCA) Rules is a power vested in the Government to be exercised on the Government forming an opinion regarding the existence of the circumstances; said opinion or conclusion reached by the Government is not justiciable as the exercise for power therein is akin to a posting and does not involve any discontinuance or termination of service - Sufficient material exists on record in terms of complaints, grievances, press reports and reports of the Inspection Teams as also the evaluation by the Secretary (East) for the Government to have reached the conclusion that the High Commissioner was not functioning the way he ought to function and the required level of contacts, rapport with the host Government as well as the local population was missing; petitioner had not been able to handle the administrative problems and redress the grievances with regard to issuance of passport, visas etc. ; opinion formed does not appear to be vitiated by malafides or consideration of extraneous or irrelevant factors - Petition dismissed.
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Rajiv Associates Private Limited vs Chief Engineer (Arc) and Others
[DELHI HIGH COURT, 11 Apr 2008]
Arbitration Act, 1940 - Appeal to challenge order dismissing petition filed u/s. 20 of the Act alongwith application u/s. 5 of Limitation Act seeking condonation of delay of 97 days in institution of the appeal - Respondent contended that there was no privity of contract with appellant-M/s Rajiv Associates Pvt. Ltd and appellant submitted that it was successor in interest of M/s Rajiv Construction Company - Held, petition, as filed, is even otherwise not maintainable since the Rajiv Construction Company- did not seek enlargement of time or in the alternative apply for filling up of the vacancy and appellant chose to file a petition u/s. 20 of the Act - Appellant has also failed to produce/prove on record that it is the successor-in-interest of Rajiv Construction Company with whom respondents had an agreement - Appeal is also barred by limitation - Appeal dismissed.
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V. Jayapalan vs Commissioner of Police, Delhi and Others
[DELHI HIGH COURT, 11 Apr 2008]
Delhi Police (Punishment and Appeal) Rules, 1980 - r. 12 - Petition to challenge order imposing forfeiture of five years of approved service permanently for a period of five years but granting subsistence allowance and for issuance of full back wages for the period of suspension with interest - Petitioner, a Constable charged u/s. 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, was acquitted by criminal court but punished after departmental enquiry - Held, Petitioner by way of original application before the Central Administrative Tribunal cannot challenge his dismissal order dated 8th January, 1988 as the same would be barred by limitation -Petitioner was given the right to file a departmental appeal against the order, but the Petitioner failed to do so, at this belated stage it is not open to the Petitioner to challenge his dismissal order, in any event, does not survive as he had been reinstated in service on 26th July, 1996, pursuant to orders passed Central Administrative Tribunal - R. 12 permits the respondent-Police to initiate departmental even action on the same charge even after the Police Officer has been tried and acquitted by a criminal court - Petition dismissed.
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Paramjit Singh vs Charanjit Singh and Others
[DELHI HIGH COURT, 09 Apr 2008]
Suit for partition of suit property as dissolution of the partnership firm had not taken place and rendition of accounts was yet to be done - Plaintiff submitted that he was not liable to pay Court fees since he was in possession of the property under orders of this Court - Held, his possession of the portion in the property on the basis of interim order is merely an interim possession, till the rights of the parties are determined by the Court; on the basis of possession obtained on the basis of an interim order of this Court, during pendency of the suit, Plaintiff cannot avoid making of payment of Court fees on the suit - Suit is not maintainable as the cause of action and substance of the suit is wholly and substantially covered by the earlier suit no. 481/1986 - Suit is also barred by limitation and is liable to be dismissed for want of appropriate Court fees - Application dismissed with costs.
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Rajinder Singh Anand vs Sardar Tarlok Singh Anand and Others
[DELHI HIGH COURT, 09 Apr 2008]
Code of Civil Procedure, 1908 - Application filed by defendant No.2 under O. 8, r. 1 r/w s. 151 CPC for condonation of delay in filing the written statement on ground that he had earlier filed application seeking further and better particulars - Records showed that defendant No.2 filed written statement without leave of the Court after more than one year and two months of the receipt of summons and that too without an application for condonation of delay which written statement was not taken on record and case proceeded further in respect of the pleadings of other defendants and crossed the stage of admission/denial and reached the stage of framing of issues and when matter was fixed for next date of hearing for framing of issues present application was made for condonation of delay in filing the written statement - Held, attitude of the defendant has been of total defiance of the law - departure from the time schedule by O. 8, r. 1 CPC can be allowed only under exceptional circumstances beyond the control of the defendant - Defendant had also not explained the delay in filing of the written statement for one year and 2 months beyond the period of 30 days or 90 days and has given no reason why he did not move an application for filing the written statement on record for 5 years; written statement filed by the defendant on 21.10.2003 was no written statement in the eyes of law since it was filed without leave of the Court - Application dismissed.
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Shaw Wallace and Company Limited vs M.P. Beer Products Private Limited
[DELHI HIGH COURT, 09 Apr 2008]
Application filed under O. 7, r. 11 CPC for rejection of the plaint on the ground that Court had no territorial jurisdiction to entertain the suit filed for injunction and damages for infringement of trade mark, copyright and passing off - Suit filed for decree of permanent injunction against the defendant from using the trade mark '5000' or 'PRESIDENT 5000' which was deceptively similar to the plaintiff's trade mark 'HAYWARDS 5000 SUPER STRONG BEER' in respect of its goods - Registered office of plaintiff company was at Calcutta and business office at Mumbai and plaintiff submitted that since the goods of the plaintiff were sold and offered for sale at various outlets at Delhi, this Court had jurisdiction but no where in plain averred that it was carrying on business in Delhi - Held, only if the goods of a company are sold at a place would not mean that company carries own the business at that place - By giving an address within the jurisdiction of this Court without specifying as to what the address was about, does not entitle a company to file the suit within the jurisdiction of this Court - Plaintiff company is having registered office at Calcutta and the other office at Mumbai, and the defendant is situated in Madhya Pradesh, no reason why the jurisdiction has been invoked of Delhi High Court when no cause of action arose in Delhi - When a Court had no jurisdiction at all in the matter, by consent the parties cannot confer jurisdiction - Delhi High Court has no territorial jurisdiction to entertain the suit - Application dismissed.
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Micrographics India vs (1) Government of Nct of Delhi Through Secretary, Transport, New Delhi; (2) Commissioner, Transport Government of Nct of Delhi
[DELHI HIGH COURT, 08 Apr 2008]
Applications filed under O. 9, r. 13 of CPC for setting aside ex-parte decree and u/s. 5 of Limitation Act, 1963 for condonation of delay - Held, receipt of the summons by Transport Department is an admitted fact, which shows clear negligence on the part of the Department and the Court cannot reward negligence; Defendants have not disclosed to the Court as to what action it has taken against its employees when it is the case of the Defendants that there was negligence and there may be collusion between the staff members and the Plaintiff - Court cannot lose sight of the nature of claim and the contention that a time barred claim was filed by the Plaintiff and decreed by the Court; amount involved in the case is more than Rs.24 lac - There is a delay in filing the applications and there seems to be negligence as well, but considering the peculiar facts and circumstances and the fact that two of the Standing Counsel, who started handling with the matter of the Department got elevated to the Bench and it is only when the office of the third Standing Counsel, took up the matter, the applications could be detected and filed - Applications allowed.
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Kanhiya Lal vs Ramesh Kumar and Others
[DELHI HIGH COURT, 07 Apr 2008]
Motor Vehicles Act, 1988 - Appeal to challenge order dismissing claim petition - Tribunal held that that once the only prosecution witness himself having denied his presence at the spot, mere registration of an FIR against the offender of the vehicle could not have been of any help to the appellant to claim compensation amount - Appellant contended that due to some oversight and inadvertence the word 'not' got inserted in the deposition of the witness and due to error committed by stenographer or due to negligence of counsel representing the appellant, appellant should not be made to suffer - Held, accident cases arising under the Motor Vehicles Act have to be tried not strictly as per the procedure and requirements as laid down in the Cr.P.C. and Evidence Act - Claim petitions filed by the victims of the accidents cannot be thrown or throttled in a hush-hush manner - Considering the cumulative effect of the statement made by the said witness, u/s. 161 CrPC registration of FIR, seizure of the vehicle and registration of the case against the driver mere insertion of word not in the deposition of the said witness, could not have been over- emphasized to dismiss the petition- Justice cannot be denied to the victims of the accidents just for some folly committed by the lawyer or the court steno when all other circumstances support the occurrence of the accident - Matter remanded back to Tribunal - Appeal disposed of.
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