High Court of Gujarat

Koli Jitubhai Jagubhai Rathod Vs. Koli Kanjibhai Ramshibhai Rathod and Ors.

MANU/GJ/2106/2017

28.12.2017

Property

When there is a conflict between law and equity, it is the law which has to prevail

Instant appeal is filed by the Appellants-original Respondents against an oral order passed by the learned Single Judge in Special Civil Application, by which the learned Single Judge has allowed the petition filed by the present Respondent and Respondent-original Petitioners. The learned Single Judge, by the impugned order, disposed off the petition by observing that, when a civil Court passes a decree of partition of an agricultural land, it is for the Collector to give effect to the same by carrying out all the necessary measure and dividing the land in metes and bounds. It is also observed that, if the private Respondents have any objection in this regard, it shall be open for them to raise it before the Collector and the Collector was directed to undertake the exercise and to complete the same within the stipulated time limit. The Appellants-original private Respondents have therefore preferred the present appeal.

As the declaration of rights or shares is only the first stage in a suit for partition, the preliminary decree does not have the effect of disposing off the suit. The suit continues to be pending until partition i.e. division by metes and bounds, takes place by passing a final decree. An application requesting the Court to take necessary steps to draw up a final decree effecting a division in terms of preliminary decree is neither an application for execution nor an application seeking a fresh relief. An application for taking steps towards passing a final decree is not an execution application. With regard to immovable properties i.e. building, plot etc., or movable properties where the division by metes and bounds cannot be made without further inquiry, the Court will pass a preliminary decree declaring the rights of the parties interested in the property and give further directions as may be required to effect the division. In such cases, normally Commissioner is appointed and after getting the report, Court passes the final decree for division by metes and bounds.

Further, it is clear that, the equity can only supplement the law but it cannot supplant or overwrite it. When there is a conflict between law and equity, it is the law which has to prevail. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. If a party is thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.

In the present case, the final decree was passed on 30th December, 1978 and till date, no execution proceedings are filed by the Petitioners before the competent civil Court. Instead, the Petitioners have submitted an application before the Mamlatdar for execution of the said decree. The said application itself is misconceived. Once the final decree is passed by the competent civil Court which has attained finality, the Petitioners have to approach before the competent civil Court for execution of the said final decree within the prescribed period of limitation.

In the present case, the suit for partition was filed by the Petitioners with regard to agricultural land as well as for three houses situated at Jafrabad. In view of the above, no direction can be given to the Collector to execute a final decree passed by the civil Court and that too after a period of more than 39 years. The Petitioners have not tendered any explanation for not filing execution application before the competent civil Court or for not submitting the application before the Mamlatdar within reasonable time. The impugned order is set aside. Appeal allowed.

Tags : Decree Execution Delay

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High Court of Himachal Pradesh

Pavel Garg Vs. Sunil Sood

MANU/HP/1072/2017

28.12.2017

Arbitration

Once an application under Section 8 of Arbitration and Conciliation Act, 1996 has been filed, Civil Court has no jurisdiction to continue with the suit

Plaintiff has filed a suit for recovery of Rs. 2,31,34,553/- for payment made to Defendant in pursuance to the Commercial Buyers Agreement (Buyer's Agreement) dated 23rd November, 2007 on account of failure of Defendant to handover the possession of shop in question booked by the plaintiff and execution of the title deed thereof. On receiving notice, Defendant, before filing written statement, has moved present application for referring the parties to arbitration.

Plaintiff has objected referring the dispute to the arbitrator on the ground that, Buyer's Agreement is independent of terms and conditions for allotment and sale and there is no arbitration agreement existing between the parties after execution of Buyer's Agreement, as the terms and conditions for allotment and sale has lost their force after allotment of shop, more particularly after execution of Buyer's Agreement, comprehensively dealing with all issues between the parties.

It is undisputed in present case that, the space has been allotted to the applicant and Buyer's Agreement has been executed between the parties on making of payment of earnest money as required according to terms and conditions for allotment and sale. In the present case, arbitration agreement does not exist between the parties and therefore, for want of pre-requisite conditions for invoking Section 8 of the Arbitration and Conciliation Act, 1996, application of Defendant must fail. Section 7 of the Arbitration And Conciliation Act, 1996 says that, arbitration agreement means an agreement by the parties to submit all or certain dispute to arbitration which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not and the said agreement shall be in writing and may be in the form of arbitration clause in a contract or in the form of a separate agreement signed by the parties.

There is no quarrel on the settled position of law that, where arbitration clause exists in the agreement, therefore, Court has a mandatory duty to refer dispute arising between the contacting parties to arbitration and Civil Court has no jurisdiction to continue with the suit, once an application under Section 8 of the Act, 1996 has been filed.

In Buyer's Agreement, it is specifically stated that, proper agreement of sale on standard format of Promoter is being executed now incorporating all the details embodied in the application and terms and conditions for allotment and sale which shall form part and parcel of this Commercial Premises Buyer's Agreement and thereafter terms and conditions agreed by and between the parties have been embodied. Contention of Defendant that, by virtue of this operative clause, all terms and conditions for allotment and sale have automatically become the part of the Buyer's Agreement, even without having specific reference a formal incorporation is not sustainable as language of relevant operative part of Buyer's agreement is unambiguously making it clear that only those details, embodied in the application and terms and conditions of sale, shall form part and parcel of the Buyer's Agreement, which are now being incorporated by executing this proper agreement of sale on standard format of promoter.

In the facts and circumstances of the case, terms and conditions for allotment and sale were alive and applicable till the allotment made by the promoter/Defendant and execution of Buyer's Agreement between the parties, thereafter it is the Buyer's Agreement which is in existence after merging the terms and conditions for allotment and sale in it, as agreed upon between the parties in the Buyer's Agreement. Therefore, arbitration clause of terms and conditions for allotment and sale shall not become part and parcel of the Buyer's Agreement automatically. Therefore, in the Buyer's Agreement, arbitration clause, which is pre-requisite condition for invoking the provisions of Section 8 of the Act, does not exist, therefore, present application filed by Defendant is devoid of merit. Application dismissed.

Tags : Dispute Arbitrator Reference

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High Court of Orissa

Musa Pradhan and Ors. Vs. State of Orissa

MANU/OR/0916/2017

27.12.2017

Criminal

Magistrate can exercise his discretion suo moto or on an application of any of parties

The Petitioners have filed present application under Section 482 of the Criminal Procedure Code, 1973 (CrPC) for quashing the impugned order passed by the learned Magistrate, in taking cognizance of offence under Section 376 of the Indian Penal Code, 1860 (IPC) and also taking recourse to Section 323 of Cr.P.C. for commitment of the case to the Court of Session. The said case arises out of Case in which chargesheet was submitted under Sections 493, 506 read with section 34 of the Indian Penal Code. The case was instituted on the basis of the first information report lodged by the victim girl.

Law is well settled that, the Magistrate has got power under Section 323 of Cr.P.C. to commit a non-Sessions triable case to the Court of Session, if the counter case is triable by Court of Session. The expression "ought to be tried" in Section 323 of Cr.P.C. includes such offences as are not triable exclusively by the Court of Session. Therefore, any relevant or proper ground on the basis of which it could be said that, the case is one which ought to be tried by the Court of Session could be valid ground for the making of an order of committal under section 323 of Cr.P.C. The Magistrate can exercise his discretion suo moto or on an application of any of the parties. If he exercises power under Section 323 of Cr.P.C. and commits the case to the Court of Session, proceeding before him stands terminated.

It was not necessary on the part of the learned S.D.J.M., Bhanjanagar to submit the case to the Chief Judicial Magistrate after taking cognizance of offence under Section 376 of the Indian Penal Code. He has rightly directed personal appearance of the petitioners on the date fixed for commitment of the case to the Court of Session.

Therefore, on the basis of the evidence of chief examination of witness/witnesses adduced during trial, the Magistrate can take action contemplated under Section 323 of Cr.P.C. in directing commitment of the case to the Court of Session provided that it appears to him at that stage that the case is one which ought to be tried by the Court of Session and he need not wait such evidence to be tested by cross-examination. If the Magistrate waits for cross-examination to be over and then assesses the evidentiary value of the witness/witnesses as contended by the learned counsel for the petitioners, it would amount to pre-judge on the merits of the case on the basis of such evidence which is not permissible at that stage.

Thus, when the learned Magistrate has come to the conclusion that, the offence committed by Petitioner was 'rape' under Section 376 of the Indian Penal Code, he had to, and rightly took the decision for commitment of the case to the Court of Session and the formulation of judicial opinion does not suffer from any perversity or illegality.

It cannot be said that, there was no prima facie evidence before the learned Magistrate against the Petitioner for commission of offence under Section 376 of the Indian Penal Code or decision taken by the Magistrate for commitment of the case to the Court of Session is illegal. Law is well settled that, inherent power of the High Court under Section 482 of Cr.P.C. should to be exercised sparingly, with circumspection and in the rarest of rare cases and not according to whims and caprice in a routine manner. When it is brought to the notice of the Court that, grave miscarriage of justice would be committed, if the impugned order is allowed to remain in force and the accused would be harassed unnecessarily, the High Court can invoke the inherent power to prevent abuse of process of any Court or otherwise to secure the ends of justice. There is no illegality in the impugned order. Application dismissed.

Tags : Cognizance Committal Court of Session

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High Court of Jammu and Kashmir

Gautam Singh Vs. State of J&K and Ors.

MANU/JK/0465/2017

26.12.2017

Service

Reputation of public servant cannot be termed as doubtful and his conduct cannot be determined only on spoken words in absence of any material on record

The entire gamut of the controversy raised in instant petition revolves round the plea whether the Order bearing No. 480-GAD of 2005 dated 26th April 2005, issued by the Government of Jammu and Kashmir, in exercise of powers conferred by Article 226(2) of the Jammu and Kashmir Civil Services Regulations, whereby notice was given to the Petitioner, to the effect that he having already attained 48 years of age, shall retire from service with effect from the forenoon of the 26th of April 2005, can withstand the test of judicial scrutiny.

The law is that, the order of compulsory retirement, taken under the safety valve of public interest, could not be treated as a major punishment and that Article 311 (2) of the Constitution could not be invoked, as the employee concerned was no longer fit in the public interest to continue in service and, therefore, he can be compulsorily retired. On an analysis of the principles laid down above, the order of compulsory retirement can be subjected to judicial scrutiny, if the Court is satisfied that the order is passed (a) mala fide; or (b) that it is based on no evidence; or (c) that it is arbitrary - in the sense that, no reasonable and prudent man would form such an opinion on the given material, in which case it falls under the category of an order termed to be perverse in the eyes of law. For framing an opinion to compulsorily retire a public servant, there should be some material on record to support and fortify it, as otherwise, it would amount to arbitrary or colourable exercise of power and, therefore, the order could be challenged on the grounds that, the requisite opinion was based on no evidence or had not been formed or the decision was based on collateral grounds or that is was an arbitrary decision.

In order to attach a semblance of fairness to such an order, the entire service record of a public servant, more significantly the service record of the previous years preceding the decision, has to be assessed and evaluated. These cannot be skipped and shelved in formulating such an opinion by taking umbrage under the plea that the same were not available, as stated in present case. If these are disregarded and omitted in the matter of the accord of consideration to the case of the compulsory retirement of a public servant, the whole exercise will get vitiated under the colour of the non-application of mind. The reputation of a public servant cannot be termed as doubtful and his conduct cannot be determined only on spoken words in the absence of any material on record. This is a fundamental flaw in the order issued against the Petitioner, whereby he has been shown the door.

The impugned order cannot stand the test of law and reason. It is not based on any material, from which a reasonable opinion could be derived to put forth the plea that the Petitioner has outlived his utility as a Government servant or that his conduct was such that his continuance in service would be prejudicial to the public interest. Merely stating that, it is in the public interest and the Petitioner has become deadwood cannot form the baseline of retiring him compulsorily in the absence of any material to substantiate. The impugned order is quashed. The Respondents are directed to reinstate the Petitioner and grant him all consequential benefits.

Tags : Notice Retirement Legality

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Customs, Excise and Service Tax Appellate Tribunal

Fujitsu Ten India Pvt. Ltd. Vs. Commissioner of Customs, New Delhi

MANU/CE/1021/2017

26.12.2017

Customs

When cost of imported goods is included in amount, which is considered for payment of royalty, then such royalty should be added in assessable value of imported goods

In the facts of present case, the Appellant is regularly importing goods from Thailand, China and Philippines. The suppliers of the imported goods viz. parts used in the manufacture of car infotainment systems like semi-conductor components, etc, are related to the Appellants. The foreign suppliers are subsidiaries of same parent entity and are related to the Appellant in terms of Rule 2(2) of Customs Valuation Rules, 2007. The Appellants entered into a license agreement with Fujitsu Ten Limited. The said agreement allowed the Appellant the right to use IPR and know how, for the manufacture of car infotainment system. The valuation of imported goods were examined by the Special Valuation Branch, in terms of Circular dated 23rd February, 2001 of the Board. On completion of verification of various documents, the Original Authority held that, royalty paid by the Appellant to Fujitsu Ten Limited and Patent and Software usage fee paid are required to be added in the assessable value in terms of Rule 10 of Customs Valuation Rules, 2007. The appellants contested the finding before the Commissioner (Appeals). The Commissioner (Appeals) vide the impugned order held that, the above charges are rightly includible in the assessable value and accordingly, rejected the appeal.

"Licensed products", means products in which the foreign company approve the Appellant's use of industrial property rights and know-how for the manufacture and sale by the Appellant. The Appellants are liable to pay royalty on gross sale value of the manufactured goods. Admittedly, such value includes cost of goods imported by the Appellant. The lower authorities held that, there is no provision for exclusion of cost of imported goods in such situation. Reliance was placed on the decision of the Supreme Court in Matsushita Television & Audio Co. When the cost of imported items were included in the net ex factory sale price of the manufactured goods and the importer pays royalty as a percentage of turnover of final product, which included the cost of imported components, it becomes a condition of sale of finished goods. Hence, both the conditions of Rule 9(1)(c) of the Valuation Rules are satisfied. The Tribunal, in the case of Herbalife International India Pvt. Ltd. and Husco Hydraulics Pvt. Ltd., held that when the cost of imported goods is included in the amount, which is considered for payment of royalty, then such royalty should be added in the assessable value of imported goods.

Regarding payment of patent/software fee, the claim of the Appellant is that, they are reimbursing the said fee on behalf of the various patent/software owners for which agreement was entered into with Fujitsu Ten India Ltd., Japan. This is to get volume discount. These software are essentially required to make the imported components integrated and functional as well as for final operation of the manufactured goods. Admittedly, these patent/software are required for the functional utility of the imported items as well as the finished final product. The Appellants are under obligation to pay fee for the said third party patent/software.

Rule 10(1)(e) of the Valuation Rules stipulates that, all other payments actually made are to be made as a condition of sale of the imported goods by the buyer to the seller or by the buyer to the third party to satisfy and obligation of the seller to the extent that such payments are not included in the price actually paid or payable, shall be added to the price actually paid or payable for the imported goods. Explanation to the said rule provides that, whether the royalty, license fee or any other payment for a process, whether partial or otherwise, is includible. There is no infirmity in the impugned order. The appeal is dismissed.

Relevant

Matsushita Television and Audio (I) Ltd. vs. Commissioner of Customs MANU/SC/2030/2007
; Commr. of C. Ex., Mumbai vs. Herbalife International India P. Ltd. MANU/CM/0610/2016
; Husco Hydraulics Pvt. Ltd. vs. Commissioner of Cus. (Import), Mumbai MANU/CM/0608/2016

Tags : Valuation Inclusion Validity

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Supreme Court

Deepak Vs. State of Chhattisgarh

MANU/SC/1635/2017

05.01.2017

Criminal

Presumption under Section 306 of IPC operates only when there was cruelty or harassment, soon before committal of suicide

The Appellant had been convicted for the offences under Sections 302 read with 34, 304-B, 306 and 498 A of the Indian Penal Code, 1860 (IPC). The First Additional Sessions Judge, had convicted the Appellant under Sections 498-A and 304-B of the IPC and sentenced him to undergo rigorous imprisonment for one year with fine of Rs. 1000/-, with default stipulation under Section 498-A of IPC and life imprisonment with fine of Rs. 5,000/- with default stipulation under Section 304B of the IPC. The High Court converted the conviction of the Appellant under Section 304-B of the IPC to one under Section 306 of the IPC.

The Appellant got married on 5th February, 1993. In the intervening night of 5th March, 1995, the wife of the Appellant was found hanging from a ceiling fan in a room. The Appellant was prosecuted under the aforesaid section and convicted. The submission of Appellant is that, a conviction under Section 498-A of the IPC does not necessarily lead to an inference of the commission of an offence under Section 306 of the IPC unless, it is established that alleged cruel treatment which is said to have resulted in the death of the deceased, was meted out soon before the death. In the case of Bakshish Ram and Anr. v. State of Punjab, present Court observed that "the prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case presumption operates".

In the present case, there is a conviction under Section 498-A of IPC, which means that there was cruel treatment to the wife by the husband but there is no credible evidence that, there was cruelty meted out to her soon before her death, so as to make the cruelty cause of her death. It is possible that, the deceased decided to end her life because she was in a depressed state of mind as is apparent from the letter produced in evidence.

Regarding offence under Section 498-A of IPC, the conviction and sentence awarded by the trial Court as affirmed by the High Court is upheld. Since, there is no direct cogent and credible evidence to link the actions of the Appellant to the death of the deceased "soon before the death" as required under Section 306 of IPC, Supreme Court considered it appropriate to acquit the Appellant under Section 306 of IPC. The Appellant is therefore directed to be released forthwith, if already served out the sentence under Section 498-A of the IPC. Bail bonds of the Appellant shall stand discharged. The appeal disposed off.

Relevant

Bakshish Ram and Anr. v. State of Punjab, MANU/SC/0243/2013
: 2013 (3) R.C.R. (Criminal) 924 : 2013 (2)

Tags : Cruelty Conviction Legality

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