24 February 2020


Judgments

Supreme Court

Sanjeev Kapoor v. Chandana Kapoor

MANU/SC/0209/2020

19.02.2020

Criminal

A Magistrate who passes an order on settlement under Section 125 of CrPC has power to recall or set aside the Order, if terms of the same are violated

Present appeal has been filed against the judgment of the High Court filed by the Appellant for setting aside the order passed by the Additional Principal Judge, Family Court. The High Court dismissed the petition filed under Section 482 of Code of Criminal Procedure, 1973 (CrPC) by the Appellant.

The Appellant submits that, the application under Section 125 of CrPC filed by Respondent No.1 having been finally decided by order by the learned District Judge, Family Court, Family Court had no jurisdiction to set aside the order. The impugned order is without jurisdiction and is in the teeth of provision of Section 362 of CrPC. Whether the embargo contained in under Section 362 of CrPC prohibiting the Court to alter or review its judgment or final order disposing the case applies to order passed under Section 125 of CrPC is the question to be answered in the present case.

Section 125 of CrPC is a social justice legislation which order for maintenance for wives, children and parents. Maintenance of wives, children and parents is a continuous obligation enforced. The closer look of Section 125 of CrPC itself indicates that, the Court after passing judgment or final order in the proceeding under Section 125 of CrPC does not become functus officio. The Section itself contains express provisions where order passed under Section 125 of CrPC can be cancelled or altered.

Magistrate does not become functus officio after passing an order under Section 125 Cr.P.C., as and when occasion arises the Magistrate exercises the jurisdiction from time to time. By Section 125(5) CrPC, Magistrate is expressly empowered to cancel an order passed under Section 125(1) of CrPC on fulfilment of certain conditions.

It has come on the record that after passing of the order on settlement, the Appellant according to his own case has paid only an amount of One Lakh Rupees, i.e. maintenance of four months after May 2017. The arrears from July, 2015 to April 2017 has not been paid by the Appellant within six months which was time allowed by the Court. The Appellant did not honour its commitment under settlement. wife cannot be left in lurch by not able to press for grant of maintenance on non-compliance by the Appellant. Section 125 of CrPC has to be interpreted in a manner as to advance justice and to protect a woman for whose benefit the provisions have been engrafted.

The order passed in present case by Family Court reviving the maintenance application of the wife under Section 125 of CrPC by setting aside order passed on settlement is not hit by the embargo contained in Section 362 of CrPC. The submission of learned senior counsel for the Appellant that Section 362 of CrPC prohibit the Magistrate to pass the order cannot be accepted.

The High Court did not commit an error in rejecting the application filed by appellant under Section 482 of CrPC. The inherent powers of the High Court given under Section 482 of CrPC are to be exercised to secure the ends of justice. The Family Court in passing order has done substantial justice in reviving the maintenance application of the wife which needs no interference by the High Court. The appeal is dismissed.

Tags : Maintenance application Revival Validity

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Supreme Court

Assistant Engineer (D1), Ajmer Vidyut Vitran Nigam Limited & Anr. V. Rahamatullah Khan alias Rahamjulla

MANU/SC/0203/2020

18.02.2020

Electricity

Licensee company cannot take recourse to coercive measure of disconnecting electricity supply for recovery of additional demand raised after expiry of two years limitation period

In the present case, for the period July, 2009 to September, 2011, the Respondent along with other consumers were billed by the licensee company (the Appellant herein) under Tariff Code, 4400 @Rs.1.65 per unit. During the course of a regular audit being conducted by the Internal Audit Party, it was discovered that in 52 cases, including that of the Respondent, the bills were raised under the wrong Tariff Code 4400, instead of Tariff Code 9400, under which the prescribed tariff rate was Rs.2.10p. per unit.

The licensee company issued a show cause notice to various consumers, including the Respondent, raising an additional demand for consumption of electricity for the past period from July, 2009 to September, 2011. On 25th May, 2015, the licensee company raised a bill demanding payment of Rs.29, 604 from the Respondent under Tariff Code 9400 for the period July, 2009 to September, 2011. Aggrieved by the said demand, the Respondent filed a Consumer Complaint before the District Consumer Forum, Ajmer.

The District Forum vide Order allowed the Consumer Complaint, and held that the additional demand was time-barred. Thereafter, the State Commission vide Order allowed the Appeal of the licensee company, and set aside the Order passed by the District Forum. In the Revision Petition filed by the Respondent before the National Commission, the Order passed by the State Commission was set aside. The National Commission held that, the additional demand was barred by limitation under Section 56(2) of the Electricity Act, 2003. The licensee company has filed the present Civil Appeals before present Court to challenge the final judgment passed by the National Commission.

The proviso to Section 56(1) of Act, carves out an exception by providing that, the disconnection will not be effected, if the consumer either deposits the amount “under protest”, or deposits the average charges paid during the preceding six months. Sub-section (2) of Section 56 of Act by a non obstante clause provides that, notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, shall be recoverable under Section 56 of Act, after the expiry of two years from the date when the sum became “first due”, unless such sum was shown continuously recoverable as arrears of charges for the electricity supplied, nor would the licensee company disconnect the electricity supply of the consumer.

Electricity charges would become “first due” only after the bill is issued to the consumer, even though the liability to pay may arise on the consumption of electricity. Section 56(2) of Act however, does not preclude the licensee company from raising a supplementary demand after the expiry of the limitation period of two years. It only restricts the right of the licensee to disconnect electricity supply due to non-payment of dues after the period of limitation of two years has expired, nor does it restrict other modes of recovery which may be initiated by the licensee company for recovery of a supplementary demand.

The licensee company raised an additional demand on 18.03.2014 for the period July, 2009 to September, 2011. The licensee company discovered the mistake of billing under the wrong Tariff Code on 18th March, 2014. The limitation period of two years under Section 56(2) of Act had by then already expired.

Section 56(2) of Act did not preclude the licensee company from raising an additional or supplementary demand after the expiry of the limitation period under Section 56(2) of Act in the case of a mistake or bona fide error. It did not however, empower the licensee company to take recourse to the coercive measure of disconnection of electricity supply, for recovery of the additional demand. As per Section 17(1)(c) of the Limitation Act, 1963, in case of a mistake, the limitation period begins to run from the date, when the mistake is discovered for the first time. The present Civil Appeals are accordingly disposed of.

Tags : Electricity supply Additional demand Recovery

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National Consumer Disputes Redressal Commission

YASH RAJ FILMS PVT. LTD. V.AFREEN FATIMA ZAIDI & ANR.

MANU/CF/0180/2020

18.02.2020

Consumer

Exclusion of song from movie which was included in trailer amounts to unfair trade practice

The complainant, who is a teacher by profession, on watching the promos of the film, namely, “Fan” decided to watch the said film with her family members. When the complainant and her family members watched the movie, the song “Jabra Fan” was missing from the said movie. Feeling cheated and deceived, the complainant approached the concerned District Forum by way of a consumer complaint seeking compensation, alongwith a direction to the Petitioners to air the promos and song with a caveat that, the said song was not included in the film.

The complaint having been dismissed by the District Forum, the complainant approached the concerned State Commission by way of an appeal. The appeal was resisted by the Petitioner who submitted that, the complainant cannot be said to be a consumer. On merits, it was submitted that the song “Jabra Fan” was shown on TV Channels as a promotional trailer of the film and it had been disclosed to the public at large by way of press interviews that the said song will not be a part of the movie.

The State Commission, vide impugned order directed the Petitioner to pay compensation quantified at Rs.10, 000 to the complainant alongwith cost of litigation. Being aggrieved, the petitioner is before this Commission.

Consumer means a person who buys goods or hires or avails services for a consideration. The complainant having paid the price of the tickets of the movie “Fan” to the Exhibitor (Cinema Hall), for watching the said movie, it cannot be disputed that the consideration was duly paid by her though she may not have paid it directly to the petitioner which is the producer of the film “Fan”. However, it is not necessary that the consideration for purchasing goods or hiring or availing services must necessarily be paid directly to the person who sells the goods or renders services to the consumer. The consideration may also flow to the seller of the goods or the service provider as the case, may be through an intermediary. The complainant paid the price of the ticket to the Exhibitor. The price of the ticket received by the Exhibitor, after excluding the tax component, is shared between the Exhibitor, Distributor and Producer of the movie. Therefore, it cannot be accepted that the complainant was not a consumer of the petitioner.

The term deficiency has been defined as under in Section 2(1)(g) of the Consumer Protection Act, 1986. "Deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

When the producer of a movie shows the promos of the said movie on TV Channels, etc. and such promos include a song, any person watching the promo would be justified in believing that the movie would contain the song shown in the said promos, unless the promo itself contains a disclaimer that the song will not be a part of the movie. If a person likes the song shown in the promo and based upon such liking decides to visit a cinema hall for watching the said movie for a consideration, he is bound to feel deceived, disappointed and dejected if the song shown in the promo is not found in the film. The practice of including a song in the promo of a film shown widely on TV Channels but excluding the said song while exhibiting the movie, constitutes an unfair trade practice. The exclusion of the song from the movie will also constitute a deficiency, as defined in Section (1)(g) of the C.P. Act, if the song is impliedly promised, but is later omitted while exhibiting the movie.

There is no justification to interfere with the impugned order in exercise of the revisional jurisdiction of this Commission. The revision petition is, therefore, dismissed.

Tags : Compensation Direction Validity

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High Court of Bombay

The State of Maharashtra V. Ashishkumar Dineshkumar Patel

MANU/MH/0248/2020

17.02.2020

Criminal

When accused secures acquittal, presumption of his innocence is further reinforced

Present is an appeal filed by the State impugning an order and judgment passed by the Chief Judicial Magistrate, acquitting accused of charges under Section 7 (i) read with Section 2 (ia) (a), 2 (ia) (m) punishable under Section 16 (Penalties) of Prevention of Food Adulteration Act 1954 (PFA).

The learned Amicus for Respondent submitted that, the Court need not go into the facts of the case because it is settled law that the Food Inspector should take the samples in clean and dried containers or bottles. Further, the Respondent, relied on a judgment of this Court in B.A. Samant V/s. The State of Maharashtra and submitted that, the failure on the part of PW-1, the Food Inspector, to take samples in clean and dried bottles, which to his knowledge were clean and dried, would certainly affect the credibility of prosecution's case.

In State of Maharashtra V/s. Vilas Madhavrao Tundulwar, the Court has held that the provisions under Rule 14 of PFA Rules 1955 are mandatory and the non compliance of the said rule will vitiate the prosecution.

There is an acquittal and therefore, there is double presumption in favour of accused. Firstly, the presumption of innocence available to accused under the fundamental principle of criminal jurisprudence that, every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, accused having secured acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court. For acquitting accused, the Trial Court observed that the prosecution had failed to prove its case.

In the circumstances, the opinion of the Trial Court cannot be held to be illegal or improper or contrary to law. The order of acquittal cannot be interfered with. Appeal dismissed.

Tags : Acquittal Legality

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Customs, Excise and Service Tax Appellate Tribunal

Texmo Pipes and Products Ltd. Vs. Commissioner of Central Goods & Service Tax and Central Excise

MANU/CE/0037/2020

14.02.2020

Excise

For minor procedural lapse, substantial benefit cannot be denied

The Appellant is a manufacturer of dutiable goods-HDPE Pipes/LLDPE Pipes. PVC Moldings, fittings, etc. which are dutiable and also manufacturer of exempt products i.e. Drip Irrigation System and Sprinkler systems. The Appellant was operating or keeping their cenvat account under Rule 6(2) of Cenvat Credit Rules, 2004 maintaining separate accounts of inputs and input services used in dutiable and exempted goods.

The officers of the Department visited the Appellant. During the verification of the goods, it appeared that the Appellant had, including other goods, cleared exempted goods viz. HDPE Sprinkler and Drip irrigation System during the period April, 2015 to March, 2016 without payment of duty/amount under Rule 6(3) of Cenvat Credit Rules. Further, it appeared that the appellant is availing cenvat credit on inputs, input services and capital goods. Pursuant to investigation, it appeared that the appellant has not paid amount equivalent to 6% (reversal of credit) of the value of the exempted goods cleared during 2015-2016, as required under Rule 6(3) (1) of Cenvat Credit Rules.

Accordingly, show cause notice was issued. Show cause notice was adjudicated on contest and the proposed demands were confirmed and appropriated as proposed. Further, equal amount of penalty was imposed for all the three proposals, under Section 11 AC of Central Excise Act, 1944 read with Rule 15 of Cenvat Credit Rules. Being aggrieved, the Appellant is in appeal before present Tribunal.

It is an admitted fact that, the Appellant has kept separate records, as required under Rule 6(2) of inputs and capital goods. Further, the admitted fact is that the Appellant has kept common records of only few common input services, which is of negligible amount and further, the turnover of exempted goods is also negligible as compared to dutiable goods. Further, the Appellant has reversed cenvat credit, on being so advised by the Department of the credit attributable to the exempted goods, under intimation to the Department. Thus, it amounts to not taking of cenvat credit at all with respect to the exempted goods as held by the Hon'ble Supreme Court in the case Chandrapur Magnet Wires (P) Ltd., Nagpur vs. Collector of Central Excise.

So far the amount of Rs. 7,52,318 is concerned, admittedly, the same has been taken by the appellant on the original documents in their possession, but it appeared that the same have been mis-placed and could not be produced by the Appellant during investigation. Cenvat credit cannot be denied as it is held that the substantial benefit should not be denied for small procedural lapse. Further, it has been repeatedly held that, Rule 6(2) read with Rule 6(3) is not the charging section or provision, it is only the mechanism to reverse the cenvat credit involved in the exempt out (finished goods) by way of a convenient formula. Accordingly, the impugned order suffers with impropriety and the same is mis-conceived. Accordingly, this appeal is allowed. The impugned order is set aside. The Appellant is entitled to consequential benefit in accordance with law.

Relevant

Chandrapur Magnet Wires (P) Ltd., Nagpur vs. Collector of Central Excise, Central Excise Collectorate, Nagpur MANU/SC/1061/1996

Tags : Demand Confirmation Legality

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

Saurav Mukherjee and Ors. Vs. Oriental Bank of Commerce and Ors.

MANU/NL/0116/2020

14.02.2020

Insolvency

If acknowledgement is made before expiry of period of limitation, then a fresh period of limitation shall be computed from time, when acknowledgement was signed

Present two Appeals emanates from the common order passed by the Adjudicating Authority/National Company Law Tribunal, whereby the Application filed by the Oriental Bank of Commerce - Financial Creditors under Section 7 of the Insolvency and Bankruptcy Code ("I&B Code') for initiation of Corporate Insolvency Resolution Process ('CIRP') against the 'Corporate Debtor' - RDH Technologies Private Limited is admitted. Being aggrieved by the said order, the Appellants have filed present Appeal.

The Appeal has been filed mainly on the ground that Adjudicating Authority erred in admitting the Application of the Respondent, even though no debt was payable in law. It is further contended that the alleged default was hopelessly barred by time and no right accrued in favour of the Respondent.

Therefore, it is clear that, a limitation can be extended based on acknowledgement in writing, provided the said acknowledgement is made before the expiration of the prescribed period of limitation for a suit or application in respect of any property or right. An acknowledgement of liability in respect of such property or right has been made in writing, signed by the party, against whom such property or right is claimed, or by any person through whom he derives his title or liability, if the acknowledgement is made before the expiry of the period of limitation, then a fresh period of limitation shall be computed, from the time, when the acknowledgement was so signed.

Admittedly, in present case, the account of the Corporate Debtor was classified as NPA on 15th December 2012. The Financial Creditor has also admitted that, date of default of the Corporate Debtor account is on 16th September 2012. Therefore, any acknowledgement of liability could only be made within a period of limitation; i.e. three years.

Hon'ble Supreme Court has laid down the law that, Article 137 of Limitation Act, 1963 providing three years limitation period, while Article 62 of the Limitation Act, for recovery of debts secured with immovable property, provides 12 years period for limitation, but Article 137 will apply to the Application filed under Section 7 of the I&B Code, even when the debt is secured by mortgaged or otherwise charged upon movable property.

On perusal of the above document, it is clear that the Financial Creditor entered into an agreement stipulating liquidation of claims whereby the Financial Creditor revised the original sanction plan of Rs. 23 crores at the request of the Corporate Debtor, and it was agreed to release the residual portion of the term loan sanctioned to the Respondent herein. It is stated in the said agreement that, the Corporate Debtor RDH Technologies (P) Limited has utilized the loan only to the extent of Rs. 7,38,61,086, against the sanctioned limit of Rs. 23 crores. After the modification revised sanctioned plan is being approved and the bank has agreed to release the residual portion of the term loan. It is also stated in the said agreement that the lending bank has agreed to release 1 to 9 floors in favour of the borrower to repay the lending bank proportionately from the outcome of the sale proceeds thereof and complete the unfinished portion of the building. This agreement has been executed by both parties.

The acknowledgement mentioned above has been signed by the Financial Creditor and the Corporate Debtor on 04th March 2015. Therefore, the limitation period to claim its right, was up to 14th December 2015 as per provision of Article 137 of Limitation Act. But by implication of Section 18 of the Limitation Act, and by acknowledgement signed by the Corporate Debtor on 04th March 2015, a fresh period of limitation started from 04th March 2015. Therefore, the limitation period was available up to 03rd March 2018 to claim its right.

By implication of Section 18 of the Limitation Act, a fresh period of limitation of three years started from 01st August 2017 and this petition has been filed on 08th December 2018, which is within limitation. The Corporate Debtor has also filed the certified copy of the bank statement with a certificate of the bank under Bankers Book of Evidence Act, 1891. On perusal of the bank relating to the loan account to the Corporate Debtor, it is clear that the Corporate Debtor made the part payment against the said loan on different dates.

In this case, it is clear that on the day of filing the petition under Section 7 of the Code, there was a subsisting liability on the corporate debtor, and due to the acknowledgement of debt in writing, though the account of the corporate debtor which was classified as NPA on 15th Dec 2012, its validity got extended from time to time by acknowledgement of debt in writing and a fresh period of limitation started after the acknowledgement of debt as per provision of Sec 18 of the Limitation Act. The petition filed by the Respondent Oriental Bank of Commerce is not barred by limitation. Hence Appeals are rejected.

Tags : Application Maintainability Time Extension

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