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Judgments
J.Balamurugan vs (1) Union of India, Represented By Ministry of Finance, New Delhi; (2) Branch Manager, State Bank of India, Periakulam Branch, Theni
[MADRAS HIGH COURT, 16 Jul 2008]
Whether petitioner belonging to Schedule Caste and having worked in Indian Army for 47 days and having not obtained the required percentage of marks was entitled to obtain educational loan? - Held, it may not be a fundamental right on the part of the petitioner to obtain a loan but it remains the fact that the constitution has given a protection for the people to have the right of education - When the policy of the Government on one hand is to encourage people from downtrodden community to come in the educational level, it is not open to the second respondent/bank to take such a stand saying as if the petitioner has obtained less than 65% of marks in bachelor degree and therefore, there may not be a possibility for the petitioner to complete his M.B.A. degree which may result in non-repayment of the loan - If the bank has decided against the petitioner on the basis that the petitioner has got no repaying capacity even that is against the norms fixed by the Government as it is seen in the public media - Petition allowed.
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Kotak Mahindra Bank Limited, Represented By Its Deputy Vice-President, Chennai vs (1) Kothari Industrial Corporation Limited, Represented By Its Chairman, Chennai; (2) Kothari (Madras) International Limited, Represented By Its Director, Chennai
[MADRAS HIGH COURT, 15 Jul 2008]
Whether the order without determining the question relating to substitution before determining the legality and propriety of transfer of mortgaged property was proper? - Held, issue whether the transfer of mortgaged property as alleged to have been effected by the 1st respondent in violation of the order of status quo, is proper or not and whether such transfer should be approved by allowing the 1st respondent to do so cannot be determined at the stage of final disposal of the original application, which requires determination prior to the same - In case the original application is allowed and the question of recovery of debt arises, it will be difficult for the Recovery Officer to recover the amount due on the mortgaged property, if such determination is not made prior to the decision in the original application - Without determination of the question of substitution of the petitioner, in place of original applicant, it is not desirable to decide the question of transfer on the basis of a petition filed by petitioner - Petition disposed of.
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Atul Nanda and Another vs Reserve Bank of India and Others
[NATIONAL CONSUMER DISPUTE REDRESSAL COMMISSION, 14 Jul 2008]
Plea , that there is deficiency in service by various banks in giving credit to the payee when the cheque is encashed and there is large float, which is enjoyed by the Banks for their benefits - Held, for the collection of outstation cheques, various banks have framed their own policies on the basis of the directions issued by this Commission and after reviewing their respective cheque collection policies - Directions issued.
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State of Maharashtra and Others vs Zubair Haji Qasim
[SUPREME COURT OF INDIA, 11 Jul 2008]
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act of 1974, s. 3(1) - Detention order - High Court quashed the detention order holding that prayer of the detenu for permission to be represented by a legal practitioner was rejected with out proper consideration and on erroneous grounds - Appeal against - Held, although, a detenu has no right under s. 8(e), to legal assistance in proceedings before the Advisory Board, he is entitled to make such a request to the Board and the Board is bound to consider such request when made - no reason to interfere - Appeal dismissed.
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(1) "Awaz", Punita Society, Ahmedabad; (2) "Jagrut Nagrik", Gujarat; (3) Pradeep Kumar Thakur; (4) Dcm Financial Services Limited, New Delhi vs (1) Reserve Bank of India, Mumbai; (2) Hong Kong and Shanghai Banking Corporation Limited, Mumbai; (3) American Express Bank Limited; (4) Citibank, N.A., Chennai; (5) Standard Chartered Bank, New Delhi; (6) Mukesh Rajput; (7) Chhabiram Singh Dhakad, Prop. Vikram Financial Services, Madhya Pradesh
[NATIONAL CONSUMER DISPUTE REDRESSAL COMMISSION, 07 Jul 2008]
Consumer Protection Act, 1986; Banking Regulation Act, 1949 - Alleged deficiency in service - Whether the Reserve Bank of India is required to issue any circular or guidelines prohibiting the Banks / Non-Banking Financial Institutions / money lenders from charging interest above a specific rate; Whether banks can charge the credit card users interest at rates ranging from 36% to 49% per annum if there is any delay or default in payment within the time specified; Whether interest at the above-stated rates amounts to charging usurious rates of interest - Held, if the service provided by the bank in connection with banking facilities is deficient, then it would be 'service' as contemplated under the Act and any dispute pertaining to such service would be governed under the Consumer Protection Act, 1986 - If the Banking Regulation Act, 1949 requires that the RBI shall discharge certain functions in the public interest and the RBI does not discharge such functions, it would amount to unfair trade practice - Permitting the banks to charge excessive/usurious rates of interest would be quite different and it would be in clear violation of public policy - No justifiable ground for not controlling the banks which exploit the borrowers by charging exorbitant rates of interest varying from 36% to 49% p.a., in case of default by the credit card holders to pay amount before the due date - Penal interest can be charged only once for one period of default and shall not be capitalized - Complaint allowed.
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Bharat Carpets vs Director, Enforcement Directorate
[SUPREME COURT OF INDIA, 07 Jul 2008]
Foreign Exchange Regulation Act, 1973, ss. 18(2), 18(3) - Alleged violation - Held, without general or special permission of the Reserve Bank of India, the exporter is required to repatriate the sale proceeds within the prescribed period of six months - S. 18(3) creates a rebutable legal presumption against the exporter whenever the prescribed period expires without repatriation of the export proceeds to the effect that exporter had not taken requisite steps to obtain repatriation of the payment - Appeal dismissed.
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(1) City Theatres Private Limited, Represented By Its Managing Director, S.Subramaniam, Karthikeyan (Alias) Mani; (2) S.Subramaniam Karthikeyan vs Sureshkumar G.Nichani
[MADRAS HIGH COURT, 07 Jul 2008]
Code of Civil Procedure, 1908, s. 34 - Appeal to challenge order directing the defendants/appellants to pay the principal amount together with interest at 24% per annum and further interest at 24% per annum on Rs.30, 000/- and holding that suit was not barred by limitation - Defendants submitted that the amount of Rs 30, 000 advanced by the plaintiff was not a loan and hence they were not liable to pay any interest towards the same - Held, though the defendants have pleaded so, they have no proof to that effect, as such they have failed to establish the same before the Trial Court with proper material documents - As per the provisions u/s. 34 of the CPC, 1908 further interest modified to 12 % per annum and 6% per annum on the principal amount - Appeal disposed of.
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(1) Shahaji Alloys Steel Private Limited, Aurangabad; (2) Shahaji Ramrao Nandure; (3) Shrimant Ramrao Nandure vs (1) Sicom Limited; (2) Meghraj Baburao Deshmukh; (3) Suryawant Ramrao Nandure
[BOMBAY HIGH COURT, 04 Jul 2008]
State Financial Corporation Act, 1951, s. 31(1)(aa); Code of Civil Procedure, 1908 - Whether provisions of the CPC, 1908, particularly amended provisions of CPC, are not applicable to the proceedings initiated under the provisions of the SFCA, 1951 and particularly the proceedings u/s. 31 of SFCA, 1951 for enforcing the liability under the agreement i.e. Contract of Guarantee and Mortgage? - Held, claim involved in the petition is for recovery of amount to the tune of Rs.1, 53, 00, 000; Interest of the SICOM may be served by giving time bound programme for expeditious hearing of the proceedings; petitioners and resp.no.2 can be asked to pay cost instead of penalizing them by throttling the litigation by not accepting the Written Statement - Petition allowed.
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Naseer vs (1) Balaji; (2) Suresh
[MADRAS HIGH COURT, 04 Jul 2008]
Negotiable Instruments Act, 1881, s. 138; Code of Criminal Procedure, 1973, s. 178 - Whether court situated on a place from where the legal notice has been issued will have territorial jurisdiction in a complaint filed u/s. 138 of NI Act, 1881? - Apex Court has pointed out that complainant can choose any one of those Courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done viz., drawing of the cheque, presentation of the cheque to the bank, returning the cheque unpaid by the drawee bank, giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, failure of the drawer to make payment within 15 days of the receipt of the notice - Held, decision of the Apex Court covers the issue that arises for consideration - Merely because the parties to the criminal complaint lodged by the respondents will be put to hardship, that cannot be a ground for quashing the proceedings but it may be a good ground to seek transfer of the cases to some other competent Court which will be convenient for the parties to attend - Petition dismissed.
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Hinganghat Nagri Sahakari Path Sanstha Maryadit, Hinganghat, Through Its Manager Keshav Narayan Kumbhare, Wardha vs Gulab
[BOMBAY HIGH COURT, 01 Jul 2008]
Negotiable Instruments Act, 1881 - Appeal to challenge order on ground that complainant was not given an opportunity - Held, complainant has been taken by surprise as to the point on which the case was being defended by the accused in absence of reply to the notice u/s. 138 of the NI Act, 1881 - Loan given by a Society to a non-member is an illegality and such amount would not be recoverable in law, is an inference drawn by the Trial Court without any support of mandatory legal provision to that effect - Complainant did not get a fair and reasonable opportunity - Appeal allowed.
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Muthulakshmi, Through Her Power Agent, P.Sakthivel vs K.Padmanabhan
[MADRAS HIGH COURT, 24 Jun 2008]
Negotiable Instruments Act, 1881, s. 138 - Appeal against acquittal - Whether the cheques in question have been issued only for the purpose of discharging a legally enforceable debt or other liability - Held, after sale agreement, the cheques in question have lost its legal force and the amounts mentioned in the cheques have merged with sale consideration and after merger, no legally enforceable debt is in existence between the complainant and accused, and since no legally enforceable debt is in existence between them, it is needless to say that the accused has not committed offence u/s. 138 of the NI Act, 1881 - Appeal dismissed.
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(1) T.N.Ramkumar; (2) T.N.Gowri Shankar vs (1) Competent Authority and Additional Commissioner (Cinema and Irrigation), Land Administration Dept, Chepauk, Chennai; (2) District Collector, Salem; (3) Revenue Divisional Officer, Salem; (4) Inspector of Police, Economic Offence - Ii, Salem
[MADRAS HIGH COURT, 18 Jun 2008]
Tamil Nadu Protection of Interests of Depositors (in Financial establishments) Act 1997 - Financial establishments, in which wives of petitioners were the partners, had failed to repay deposits of depositors and Government passed order of attachment - Petitioner submitted that interim order of attachment having passed against items belonging to petitioners was not lawful and in spite of the passage of 6 or 7 years, no steps had been taken by the competent authority to make any application to the Civil Court, and therefore the interim attachment was liable to set aside - Respondent submitted that O.A. was pending before special Court for the purpose of making the interim order of attachment absolute - Direction issued to the Special Court to take up the application and decide the same in accordance with law - Petition disposed of.
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S.Suresh vs M.C.Subramanian
[MADRAS HIGH COURT, 17 Jun 2008]
Negotiable Instruments Act, 1881, s. 138, 141; Code of Criminal Porcedure, 1973, s, 357(3) - Whether Courts below had rightly directed the accused to pay twice the cheque amounts by way of compensation to the complainant? - Supreme Court in Sivasuriyan Vs. Thangavelu held that where fine already forms part of the sentence, the Court cannot direct payment of compensation in exercise of power under sub-s. 3 of s. 357 of CrPC, 1973 - Held, judgment of the first appellate Court is totally against the dictum given by Apex Court and the same is liable to be modified - Since the cheque amount is Rs.7, 00, 000/- and since the accused paid only part of that amount to the complainant and the same has also been returned to the accused, the Court cannot come to a conclusion that mere payment of Rs.2, 50, 000/- by the accused to the complainant, would absolve his liability - Fine imposed of Rs.7, 00, 000/- on accused to be given as compensation to the complainant - Petition disposed of.
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S.Subramanian vs (1) Authorised Officer, State Bank of India, Karur; (2) Debt Recovery Tribunal, Kalani Towers, Madurai
[MADRAS HIGH COURT, 13 Jun 2008]
Securtisation and Reconstruction of Financial Assets and Enforcement of Secured Interest Act, 2002 - Writ petition filed for prohibition against the respondents from including certain items u/s. 13 (4) of SARFAESI Act, 2002, which according to the petitioner were agricultural lands, exempted u/s. 31 (i) of the SARFAESI Act, 2002 - Petitioner had approached DRT u/s. 17(1) of the SARFAESI Act, 2002 and had raised issue of want of jurisdiction on the part of the bank in invoking s. 13 of the SARFAESI Act, 2002 but submitted that Tribunal had been simply adjourning the matter - Direction issued to Tribunal to decide matter expeditiously - Petition disposed of.
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(1) Government of Tamil Nadu, Represented By Its District Collector, Salem; (2) Rasipuram Muncipality, By Its Commissioner, Rasipuram, Salem vs K.S.R.Murugesan
[MADRAS HIGH COURT, 13 Jun 2008]
Interest Act, 1978, s. 3; Code of Civil Procedure, 1908, s. 34 - Whether the trial Court was justified in awarding 10% interest p.a. with effect from 06.11.1991 till the date of decree and 6% interest p.a. from the date of decree till realization when there was no stipulation for payment of interest in the agreement? - Held, under Ex.B.1 agreement, there is no reference to any payment of interest and in such a case, by virtue of sub-cl. (b) of sub-s. (1) of s. 3, interest has to be calculated only from the date of notice. Failing to take note of the same, the trial Court awarded interest from the date on which the last supply was made - As per s. 34 of the CPC, 1908, no doubt, the contractual rate of interest could be awarded upto the date of decree relating to commercial transaction; under Ex.B.1, there is no contractual rate of interest contemplated much less any interest payable at all is contemplated hence, the award of 10% interest should have been restricted upto the date of filing of the suit; from the date of the suit till realisation, awarding of 6% interest would be legal - Appeal disposed of.
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(1) G.Soundararajan; (2) P.K.Mani vs (1) K.Vijayakumar; (2) State, Represented By Inspector of Police, Cciw, Salem
[MADRAS HIGH COURT, 12 Jun 2008]
Negotiable Instruments Act, 1881 - Whether revision petitioner petitioners had bonafide reason to prefer revision petition against acquittal of respondents who had been acquitted on ground of benefit of doubt? - Held, any aggrieved party can prefer appeal or revision, in case of acquittal recorded against their interest, however, there should be bonafide grounds for preferring such appeal or revision - As per s. 20 of the NI Act, 1881, where a person signs and delivers to another a paper stamped in accordance with law relating to negotiable instruments, either wholly blank or having written therein an incomplete negotiable instrument, he has thereby given prima facie authority to the holder thereof to make or complete the instrument; same analogy is applicable for handing over a signed blank cheque - Revision petitioners have taken contradictory stand, one before the Enquiry Officer and another before the Trial Court, according to them, they had admitted the signatures before the enquiry officer, in order to protect the first respondent, however, no threat or coercion has been attributed by them against the first respondent; there is no bonafide reason given by them to prefer this revision, even in the absence of an appeal by the State - Petition dismissed.
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K. Sagar, M.D., Kiran Chit Fund, Musheerabad vs A. Bal Reddy and Another
[SUPREME COURT OF INDIA, 11 Jun 2008]
Whether Consumer Forums established under the Act have jurisdiction to entertain dispute between the chit fund and one of its prized subscriber or between the subscribers? - Held, issue relating to jurisdiction has to be decided by the forums first - Matter remitted to State Commission to consider the question of jurisdiction - Appeal disposed of.
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Reserve Bank of India vs Sahara India Financial Corporation Limited and Another
[SUPREME COURT OF INDIA, 09 Jun 2008]
Interim order passed staying the operation and enforcement of order restraining respondent no.1 from accepting deposits from the existing depositors and fresh depositors on ground that respondent no.1 did not get a fair opportunity to present its case - Appeal against - Held, it would be appropriate for the appellant Reserve Bank of India to give an opportunity of hearing to Respondent No.1 so that it can, if so advised, place materials to substantiate its stand taken in the reply to the show cause notice - Appeal disposed of.
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Krishna Texport Industries Limited vs DCM Limited
[DELHI HIGH COURT, 23 May 2008]
The Judgment was delivered by : HON'BLE JUSTICE SANJAY KISHAN KAUL1. A conflict of judicial view between the Bombay High Court and the Gujarat High Court in respect of the power of the company court Under Section 391(6) of the Companies Act,
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S.Mohan vs Central Bureau of Investigation
[SUPREME COURT OF INDIA, 16 May 2008]
Special Court (Trial of Offences relating to Transactions in Securities) Act, 1992; Indian Penal Code, ss. 409, 411 r/w 120B; Prevention of Corruption Act, ss. 13(1) (c ), 13(1) (d) r/w 13(2) - Appeal against conviction and sentence - Held, no ingredient of criminal breach of trust is made out against either of the appellants - Prosecution also could not prove any conspiracy by these accused persons to commit any criminal acts - So long as there was no such evidence, the offence of conspiracy is not proved against these appellants - CANFINA did not file any complaint alleging any unauthorized transaction carried out by him - It has been held by this Court that the entire transaction was legal and the CANFINA was entitled to the proceeds of these CANCIGO Units and not the "Custodian" - Appeals allowed.
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Mallavarapu Kasivisweswara Rao vs Thadikonda Ramulu Firm and Others
[SUPREME COURT OF INDIA, 16 May 2008]
Negotiable Instruments Act, 1881, s. 118 - Banking and Finance – Promissory Notes – Suit for recovery of its amounts with interest - Fact that the promissory note was for consideration, not denied – Appellant’s evidence inconsistent with presumption u/s. 118 of the Act – Courts below refused to pass decree on basis of presumption - Burden of proof - Held, if defendant have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who would be obliged to prove it - Mere denial would not have been sufficient to prove the non-existence of consideration - Appeal Allowed.
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Bank of India vs Ketan Parekh and Others
[SUPREME COURT OF INDIA, 16 May 2008]
Whether decree passed by the Debts Recovery Tribunal under Recovery Officer under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 will prevail over the property attached under the provisions of Special Courts( Trial of Offences Relating to Transactions in Securities) Act, 1992? - Held, where both the enactments have the non-obstante clause then in that case, the proper perspective would be that one has to see the subject and the dominant purpose for which the special enactment was made and in case the dominant purpose is covered by that contingencies, then notwithstanding that the Act might have come at a later point of time still the intention can be ascertained by looking to the objects and reasons - S. 9-A of the Act of 1992 was amended on 25.1.1994 whereas the Act of 1993 came in 1993, therefore, the Act of 1992 as amended to include s. 9-A in 1994 being subsequent legislation will prevail and not the provisions of the Act of 1993 - Appeal dismissed.
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Paresh P.Rajda vs State of Maharashtra and Another
[SUPREME COURT OF INDIA, 16 May 2008]
Negotiable Instruments Act, 1881, s. 141 - Whether for purposes of s. 141 of the NI Act, 1881, it is sufficient if the substance of the allegation read as a whole fulfill the requirements of the said section and it is not necessary to specifically state in the complaint that the person accused was in charge of, or responsible for, the conduct of the business of the company? - Whether a director of a company would be deemed to be in charge of, and responsible to, the company for conduct of the business of the company and, therefore, deemed to be guilty of the offence unless he proves to the contrary? - Even if it is held that specific averments are necessary, whether in the absence of such averments the signatory of the cheque and or the managing directors or joint managing director who admittedly would be in charge of the company and responsible to the company for conduct of its business could be proceeded against? - Held, it is necessary to specifically aver in a complaint u/s. 141 that at the time offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company, without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied - Requirement of s. 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases - By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company, therefore, they get covered under s. 141; so far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-s. (2) of s. 141 - Appeals dismissed.
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Indian Bank vs Godhara Nagrik Cooperative Credit Society Limited and Another
[SUPREME COURT OF INDIA, 16 May 2008]
Question regarding power of judicial review of a Superior Court - Whether Single Judge, despite holding that the writ petitions were not maintainable, could have issued direction for constitution of the Committee - Held, a writ court exercising the power of judicial review has a limited jurisdiction - A writ petition would lie against a State within the meaning of art. 12 of the Constitution of India - Exercise of jurisdiction by the High Court is permissible in a case where action of the State is found to be unfair, unreasonable or arbitrary - Question which should have been posed by the High Court was as to whether the action of the bank was so arbitrary so as to invoke the public law jurisdiction - In the absence of any categorical finding that it was the officers of the Banks alone who were liable, no direction as has been done in the instant case should have been issued - Directions issued.
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Bakemans Industries Private Limited vs New Cawnpore Flour Mills and Others
[SUPREME COURT OF INDIA, 16 May 2008]
Whether power of a Company Court to sell the property of a company vis-a-vis the power of the Financial Corporation can be merged - Held, if the property which has been put to auction was the prime property over which the fate of the creditors depended, be they secured or non-secured ones, the company court, in exercise of its equity jurisdiction could not have obliterated it from its mind the cases of the others - Company Judge was not correct in its view and passed the impugned judgments only having regard to the wrongful conduct on the part of the appellant in obtaining an award from the conciliation tribunal or failure to bring a better offer from another bidder - Appeals partly allowed.
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