0

Bombay High Court: A child cannot be utilized as a toy, rather must be considered as a human being

Blog , , , , ,

Bombay High Court: A child cannot be utilized as a toy, rather must be considered as a human being

Background

The couple, who were both US citizens, was married in California. The infant was born in Paris in February of 2019. But shortly afterward, their relationship soured, and the father moved the child to Goa after receiving an ex-parte custody order from a Californian court. The mother then arrived in India, and the divorced couple proceeded to seek for custody before the family court in Mapusa.  In its ruling, the High Court stated that it had changed a family court’s June 2023 ruling in October 2023, giving the father visitation rights while maintaining the child’s mother’s custody.  However, because of the child’s illness, the father was unable to use his visitation rights. As a result, the father submitted a second application to the family court in Mapusa asking for custody of the child throughout the summer break from school. In an order issued on May 8 of this year, the family court stated that the child’s illness precluded the father from obtaining visitation rights. As a result, it gave him seven weeks of summer break custody of the child while giving the mother only five. In opposition, the mother then filed a move with the High Court.  The father was appropriately given extra time by the family court since the High Court rejected his argument that he may receive compensation for his lost visitation privileges.

Matter of concern

It is to be decided to whom the child should be attributed custody.

Court’s observation and decision

The father was appropriately given extra time by the family court since the High Court rejected his argument that he may receive compensation for his lost visitation privileges. The judge declared that it was not in the best interests of the five-year-old child for the family court to have granted the father seven weeks of custody of the youngster. A mother’s presence is extremely important for a child at this vulnerable age. But the father’s requirements must also be taken into account while determining custody and visitation privileges, the court stated. The solitary court stated that the child’s best interests must be taken into account and that he has the right to spend the holiday with both of his parents. The Court concluded that it would be reasonable to distribute the vacation time equally amongst parents. In order to preserve and strengthen the relationship between family members, parents and children have the right to use such vacation time to spend quality time with their respective mothers, fathers, and relatives. The order stated that the child should have the chance to get to know both the mother’s and father’s family. Therefore, the Court held that the vacation of 11 weeks could be divided equally between mother and father. It, therefore granted five weeks’ custody to each of the parents. The court observed that, in a child custody case that a child involved in a custody dispute cannot be utilised as a toy by his parents but rather must be considered as a human being and his interests must be given primary significance.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written By- Shreyasi Ghatak

 

 

0

Bombay HC holds MBBS degree valid even though the reservation certificate is proven to be fraudulent.

Blog , , , , , , ,

CASE TITLE – Miss. Lubna Shoukat Mujawar v. State of Maharashtra

CASE NUMBER – Writ Petition No. 132 of 2017

DATED ON – 09.05.2024

QUORUM – Justice A.S. Chandurkar and Justice Jitendra Jain

FACTS OF THE CASE

The Petitioner had in the year 2012-13, enrolled herself for the MBBS course at the Lokmanya Tilak Municipal College and Hospital, who is the Respondent No.4 in this case. She had opted to enroll under the OBC category on the basis of Non-Creamy Layer, for which she had provided certificates. In 2012, a Writ Petition, numbered as 7456, was filed by an aspiring medical student seeking inquiry with respect to admission to the MBBS course through the OBC category based on the Non-Creamy Layer Certificate, due to which an enquiry was conducted against all the students that were enrolled at the college who obtained the admission on the basis of the said Certificate. The Petitioner’s father who had obtained the said Certificate was called for hearing by the Enquiry Committee in the month of April and October 2013. The Enquiry Committee came to the conclusion that the Petitioner’s father has misrepresented to the Authorities while making an application for the said Certificate. The Petitioner’s father stated that he gave Talaq on 9th October, 2008 to his wife and, therefore, the income of the wife was not shown while making the application but at the same time in his statement stated that for the betterment of the children, he used to stay along with his wife. Due to which, The Committee began to doubt the documents based on which the Talaq was granted. The Committee, therefore, concluded that the Petitioner’s father has obtained the said Certificate by giving false information.

On the basis of the above Enquiry Report, the Collector of the Mumbai Suburban District, Respondent No.3, on 8th October, 2013 cancelled the said Certificate and consequently, The College too, through a communication, dated 1st February, 2014, cancelled the admission of the Petitioner to the MBBS course. It is on this backdrop that the present petition was filed before this Court on 5th February, 2014 challenging the cancellation of the admission and the said Certificate.

ISSUES

  1. Whether the Petitioner has proven that she could be provided admission under the OBC category on the basis of Non-Creamy Layer Certificate?

  1. Whether the Petitioner’s father has procured the Non-Creamy layer Certificate rightfully?

  1. Whether the College is justified in cancelling the admission and preventing the Petitioner from further continuing her MBBS course?

CONTENTIONS BY THE PETITIONER

The Petitioner submitted that since her father had given Talaq to her mother on 9th October, 2008, the income of the mother was not mentioned by her father while making the application for the said Certificate. The Petitioner submitted that her parents were staying together for the sake of the Petitioner and, therefore, merely because they were staying together, the income of both the parents should not be considered for the said Certificate, since they had already obtained Talaq in 2008. The Petitioner further submitted that if the income of her father is considered then the Certificate has been correctly issued as per the Government Resolution dated 14th October 2008, wherein the upper limit of annual income prescribed for obtaining the said Certificate was Rs.4,50,000/-, which was more than what her father was earning. The Petitioner submitted that there is no false information given by her father and, therefore, the action of Respondent Nos.3 and 4 cancelling the Certificate and the admission is illegal and bad in law. The Petitioner had also filed notes of arguments giving dates and events up to 2022. The Petitioner submitted that on 25th July 2017, she completed her MBBS course and the passing certificate was issued to that effect. The Petitioner had also completed her internship as well as served as a Medical Officer in Kolhapur District during the period 22nd January 2022 to 11th October 2022.

CONTENTIONS BY THE RESPONDENT

The Respondents have relied upon the Enquiry Report and submitted that the Petitioner’s father had given false information with respect to the Talaq and also falsely stated that the Petitioner’s parents were staying separately when in fact they were staying together. The Respondents further submitted that such a course of action adopted by the Petitioner’s father to obtain admission is improper and would set a wrong precedent if the same is accepted. Furthermore, they informed that till today, the income of the Petitioner’s mother is not disclosed although, she was working with the Corporation. The learned Senior Counsel strongly opposed the petition and the prayers sought therein and justified the action of cancellation of the admission.

COURT ANALYSIS AND JUDGEMENT

The Petitioner’s father in his application dated 25th June, 2012 for obtaining Non-Creamy Layer Certificate has stated that his wife is a housewife and her income is Nil. This statement is found to be incorrect since his wife was working with the Corporation as stated by the petitioner as Class-III employee. Therefore, the statement made in the application was found to be incorrect. If the income of the wife had been given then the total income of the family would have exceeded Rs.4,50,000/- since the Petitioner in the said application has stated that his income was Rs.4,37,815/- for the financial year 2011-12. The Court believed that it is for this purpose that the Petitioner’s father, to circumvent the upper limit specified by Government Resolution had made a false statement. In the application, the Petitioner’s father stated that Afroz Jahan, a housewife was having no income whereas, before the Enquiry Committee, he stated that on 9th October, 2008, he had given Talaq to his wife. If that be so then there was no need for the Petitioner’s father in the application made for the certificate to state that Afroz Jahan is his wife. This lead the Court to conclude that either the document dated 9th October, 2008 giving Talaq is not genuine or the information provided in the application dated 25th June, 2012 is incorrect. Which in either case, the application is based on incorrect, wrong, and false information. The Petitioner’s father sought to justify that although he had given Talaq, he was staying with his wife for the betterment of the children when confronted by the Enquiry Committee. Which was in the eyes of the Court, self-contradictory and an afterthought, and therefore, the Enquiry Committee was justified in rejecting such a contention. From any angle, there was no doubt that the basis of cancelling the certificate and the admission was justified since the same was based on false, incorrect, and suppression of information. Therefore, the Petitioner’s prayer to quash the communication dated 8th October, 2013 was rejected. However, since the Petitioner had completed the MBBS course and was also qualified as a Doctor, the Court did not see it as necessary to deprive the country of a qualified doctor as it would be a loss, since the nation already had a very low ratio of doctors to population. The court then held that Respondent No.3 was justified in cancelling Non-Creamy Layer Certificate of the Petitioner dated 8th October 2013 based on which the admission was obtained in the College. But since the Petitioner was qualified, the College and the University were then directed to confer the degree to her. The admission of the Petitioner in the College right from year 2012 till completion of the MBBS course would be considered in the “Open Category” and the Petitioner was instructed to pay the difference in the fees which an Open Category Candidate was required to pay for the entire course, within 12 weeks from the date of the order. The Petitioner was also directed to pay the cost of Rs.50,000/- to the Hospital within the same time period.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Judgement Reviewed by – Gnaneswarran Beemarao

0

Bombay High court: Rejects Custody of child to her Father facing violence charges not safe

Blog, Bombay HC , , ,

Bombay High court: Rejects Custody of child to her Father facing violence charges not safe

Case title: The state of Maharashtra & ANR Vs Siddhesh Bhole& ANR
Case no.: CRIMINAL WRIT PETITION NO. 341 OF 2024
Dated on:7th May 2024
Quorum: Justice Hon’ble Mr. Justice A.S. Gadkari and Mr. Justice Shyam C. Chandak.

FACTS OF THE CASE
This is a Writ Petition under Article 226 of the Constitution of India. Since the Petition is concerning a girl child aged about 7 years as of date; to respect her anonymity, we deem it appropriate to refer her as Miss ‘R’ for the purpose of our decision. This Hon’ble Court be pleased to issue an appropriate writ, order or direction in the nature Habeas Corpus to the Respondents and more particularly Respondent No.2 to produce the minor daughter Miss ‘R’ before this Hon’ble Court and deliver her custody to the Petitioner Father so as to repatriated her to the U.S.A in compliance of the order passed by the U.S court dated 14/12/2023 and 12/01/2024. The husband’s case is that, since 2007, he has been working and residing in the United States of America. He is having an Indian passport. The husband and the wife are Indian Citizens by birth. Their marriage was solemnized on 16th January, 2015 at Pune, India. On 09th February 2015, the couple shifted to the USA. On 24th June 2016, the couple was blessed with Miss ‘R’. She is a citizen of the USA and holds a passport thereof. It is alleged that, meanwhile the husband was subjected to physical, mental, social, emotional and financial harassment by the wife.
The husband and the wife, therefore, fallen apart on 05th September 2023 itself, the husband filed a Motion before the District Court of Mecklenburg County, in the States of North Carolina, the USA (‘The Mecklenburg Court’, for short), seeking for Miss ‘R’s custody, child support and equitable distribution. The wife appeared in the said case and filed her verified Answers-cum-Counter-claims for post separation support, alimony, child custody, equitable distribution, Motion for Temporary Parenting Arrangement, child support and Attorney fees. It was followed by the husband’s verified defence, reply and responsive pleadings. During the hearing for ‘Temporary Parenting Arrangement’, it was confirmed that, till final hearing, the parties would continue to exercise joint physical custody on a week on-week off basis. One Lynna Moen was appointed as a Parenting Co-ordinator. It is averred that, on 06th December 2023, suddenly the wife withdrew Miss ‘R’ from her School. On 07th December 2023, she flew to India along with Miss ‘R’ but without intimation to and consent of the husband. Thus, the wife flouted the temporary arrangement of Miss ‘R’s custody and the Orders of the competent Court. Thereafter, the wife was non-communicating. It is stated that, after coming to India, the wife filed a report bearing F.I.R.No.567/2023 with Nerul Police Station, Navi Mumbai against the husband and his relatives alleging offences punishable under Sections 323, 406, 498-A, 504, 506 read with Section 34 of the Indian Penal Code, 1860 (‘I.P.C.’, for short). The husband also filed a report dated 09th January 2024 with Nerul Police Station, Navi Mumbai against the wife alleging offences punishable under Sections 361 and 363 of I.P.C By its Order dated 19th January 2024, the Mecklenburg Court permanently granted the sole custody of Miss ‘R’ to the husband. The said Court also issued a suo moto Order to the wife to show cause as to why she be not held in willful civil/criminal contempt of the Court for violating the terms of Temporary Parenting Arrangement dated 06th December 2023 as well as fleeing the jurisdiction of said Court etc. In the backdrop, custody of Miss ‘R’ with the wife is illegal. The wife filed a Custody Petition D. No.03/2024, under Section 7 of The Guardians and Wards Act, 1890 with the Family Court, at Pune claiming permanent custody of Miss ‘R’. Hence, the Petition. The wife filed her Affidavit-in-Reply and resisted the Petition. The wife contended that, the husband and his family members subjected her to cruelty, therefore, on 12th December 2023, she filed the F.I.R. alleging cruelty. On 05th January 2024, she filed the Custody Petition in which the husband recorded his appearance and opted for mediation. On 05th February 2024, she filed a petition for domestic violence against the husband at District Court, Pune. It is contended that, on 06th September 2023, the husband through his attorney, blackmailed the wife saying that, the only way for her to see Miss ‘R’ again is if she agrees to equal visits of Miss ‘R’ over the week. The husband restricted all her access to Miss ‘R’ until she agrees to equal custody. Trapped in this critical situation, she agreed for that arrangement with the husband through their lawyers. The USA Court was not involved in determination of the custody schedule till the wife traveled back to India. It is contended that, the husband was packing stale-food and uncooked sausages in Miss R’s lunch box for school and sending her without proper clothing and It is contended that, the lifestyle of the husband is unsuitable for Miss ‘R’. He has been leading an immoral life. He has an anxiety issues. His smoking habit has taken heavy toll on Miss ‘R’s health. In contrast, the wife was and has been taking every good care of Miss ‘R’. There is good physical and emotional bond between the two. It is contended that, now, Miss ‘R’ is going to Universal Wisdom School, Pune, from 08th January, 2024. Miss ‘R’ is settled in the said school environment and enjoying the care and attention from the wife and her family members. Miss ‘R’ has been taking child therapy from Ms. Nisrin Poonawala, Pune. It is contended that, the wife has been employed since last two years, therefore, she is able to meet the financial needs of Miss ‘R’. In the backdrop, the best interest of Miss ‘R’ can be achieved if she remains in the wife’s custody only. And this is possible as Miss ‘R’ holds an ‘Overseas Citizenship of India’ Card (OCI) and she can have Indian citizenship after she becomes major. Hence the Petition be dismissed.

CONTENTIONS OF THE APPELLANT
The learned Advocate for the wife pointed that, being concerned for Miss ‘R’s health, the wife took her to a Child Therapist Nisrin Poonawala for psychological assessment and therapy. It immensely helped improving Miss ‘R’s mental well-being. However, we restrict ourselves from relying on the assessment/therapy report given by said Poonawala, because she has done just Master of Arts (Psychology), as informed by learned Advocate for the wife. Secondly, the health issues with which Miss ‘R’ encountered with as demonstrated by the wife, were of greater magnitude, as on multiple occasions Miss ‘R’ stated that, ‘I hate myself; I wish I was dead’. In our considered view, such a state of mind is medically better handled and treated by specially qualified child psychiatrists, who are easily available in Pune. Nevertheless, instead of first taking Miss ‘R’ directly to such a scientific expert after returning to India on 07th December 2023, the wife caught up with her Advocate and engaged in filing F.I.R. of cruelty and domestic violence case.

CONTENTIONS OF THE RESPONDENTS
Mr. Siddhesh Bhole, learned counsel for the respondent submitted that, the cruelty to the husband by the wife caused a separation between them. Since birth, Miss ‘R’ was ordinarily residing at North Carolina, the USA. She, therefore, was used to the living conditions there. She was studying in a school. She had developed good friendship with children there. During this time, Miss ‘R’ was comfortable and safe in the company of the husband as he showered upon her the best love and affection. The certificate issued by Miss ‘R’s School Authority shows that, she has no health issues and on the contrary, she is a normal and a bright student. Even after separation between the husband and the wife, the former took every best possible care of Miss ‘R’. The claim made in that Motion that, said Court has jurisdiction to adjudicate all the issues between the parties, has been conceded by the wife in her Answer-cum-Counter claims. However, when the said case was scheduled for hearing on 06th December 2023, suddenly, the wife moved to India along with Miss ‘R’, but without bothering about the ill-effects of such uprooting on Miss ‘R’. The learned counsel submitted that, the ground of cruelty raised by the wife is an afterthought. The wife’s allegation that, the husband was intending to withhold her documents of immigration to make her stay in the USA illegal, is not only baseless but also false. Said ground has been taken just to entangle the husband in the litigation in India and deny him the child’s custody. Lastly, learned Advocate submitted that, the husband is fit in all respects i.e., physically, mentally, financially and socially to look after Miss ‘R’ and raise her as a respectable member of the society. Absolutely, there is no harm to Miss ‘R’ if she resides with the husband in the USA. If Miss ‘R’ resides and grows in the USA, she will have good prospects. As such, repatriation of Miss ‘R’ to the USA would serve her best interest, which should be a primary consideration in such litigation. Learned counsel submitted that, financially, the wife is stable. She is capable to provide every financial support to Miss ‘R’.

LEGAL PROVISIONS
Article 226 of the Constitution of India: clearly states that every High Court shall have the powers throughout the territories in relation to which it exercised jurisdiction to issue writ or orders to any person or authority.
Sections 498-A of the Indian Penal Code, 1860: Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Section 506 of the India Penal Code,1860: Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt.
Sections 361 and 363 of I.P.C.: Kidnapping from India and Kidnapping from a legal guardian, as described in Sections 360 and 361 of the Code, are punishable under Section 363 of the Code. A Magistrate of First Class may try it since it is a bailable, cognizable, and non-compoundable offense.
Section 7 of The Guardians and Wards Act, 1890: Power of the Court to make orders as to guardianship.

COURT’S ANALYSIS AND JUDGEMENT
The aforesaid principles of law, every Court is well aware of the role of a mother in the life of a child of tender age and in particular, a girl child. Describing a mother’s role in similar situation, in the case of Vivek Singh vs. Romani Singh: (2017) 3 SCC 231, the Hon’ble Supreme Court observed that, “The role of the mother in the development of a child’s personality can never be doubted. A child gets the best protection through the mother. It is a most natural thing for any child to grow up in the company of one’s mother. The company of the mother is the most natural thing for a child. Neither the father nor any other person can give the same kind of love, affection, care and sympathies to a child as that of a mother. The company of a mother is more valuable to a growing up female child unless there are compelling and justifiable reasons, a child should not be deprived of the company of the mother. The company of the mother is always in the welfare of the minor child ” It is admitted fact that, Miss ‘R’ was born in the North Carolina, USA and she is a citizen thereof. Initially, Miss ‘R’ resided with both parents in New Jersey, 07071 until August 2020, after which she enjoyed the love and care in the company of both the parents under a common roof in North Carolina, 5924, Cactus Valley Road, 28277, until 5th September 2023. Following her parents’ separation, she has resided separately with each parent in different locations i.e. 5304, Rock Hill Lane, Charlotte and 5924, Cactus Valley Road, North Carolina, 28277. Thus, Miss ‘R’ has spent her entire life in the USA only. In her answer to the Motion of the husband filed before the Mecklenburg Court, the wife has stated that, the husband is employed by Zelis as a Data Scientist and earns a base salary of US$ 1,65,000 per year. Additionally, he gets yearly bonuses, investment income and rental income from a property at New Jersey. No doubt, in the F.I.R.No.567/2023 the wife alleged that, immediately after the marriage, the husband and his relatives treated her with cruelty. However, even though the wife was in India during the Ganesh Festival of 2018, she did not try to file the report of cruelty then and there. The F.I.R. does not mention that, after December 2018, the husband caused any specific cruelty. Therefore, veracity of the F.I.R. is subject to trial. Therefore, it was highly probable that, said Court would have passed an Order giving visiting and custody rights of Miss ‘R’ to her both parents. During the hearing of this Petition, on instructions from and in presence of the Petitioner-husband, his learned counsel made a statement that, the husband is ready and willing to give the entire joint house property of the parties in the USA, including his share, for Miss ‘R’ and the wife’s stay there. Besides that, the husband will happily provide all the financial support which Miss ‘R’ and his wife need to reside there. The Writ Petition is allowed with following directions. The wife shall handover custody of Miss ‘R’ to the husband with passport of Miss ‘R’ in presence of the learned Advocate for the husband on 10th May, 2024 at 11:30 a.m. In the same manner, the wife shall handover necessary school documents of Miss ‘R’ to the husband till 04:00 p.m. of 14th May, 2024. Thereafter, the husband shall make necessary arrangements for taking Miss ‘R’ to the USA accompanied by atleast his one close relative. In case the wife is willing to go back to the USA along with Miss ‘R’ but is not willing to live with the husband, we direct that, the husband shall make alternative arrangements for his own stay and handover possession of the joint house property of the parties to the wife namely 5924, Cactus Valley Road, Charlotte, North Carolina 28277 in conformity with his aforenoted statement made through his Advocate. The Writ Petition is disposed off in aforesaid terms. Rule is made absolute. Hence, we are not inclined to grant stay to the impugned Judgment and Order.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Judgement Reviewed by – HARIRAGHAVA JP

Click here to read the judgement

 

 

0

Maximum Stamp Duty of Rs. 25 lakhs is applicable only as a one-time measure and not on each subsequent increase in the share capital of a company: Supreme Court

Blog , , , , , , , , , , ,

Case title: State of Maharashtra & Anr. Vs National Organic Chemical Industries Ltd.

Case no.: Civil Appeal No. 8821 of 2011

Decision on: April 5th, 2024

Quoram: Justice Sudhanshu Dhulia and Justice Prasanna B. Varale

Facts of the case

The respondent company was incorporated with an initial share capital of Rs. 36 crores and in 1992, it increased its share capital to Rs. 600 crores and accordingly paid a stamp duty of Rs.1,12,80,000/- as per Article 10 of Schedule-I of the Bombay Stamp Act, 1958. The State/appellant amended Article 10 and introduced a maximum cap of Rs. 25 lakhs on stamp duty which would be payable by a company. Subsequently, the respondent passed a resolution for a further increase in its share capital to Rs. 1,200 crores and paid Rs. 25 lakhs as stamp duty. However, according to the respondent, this was done inadvertently as it was soon realized that stamp duty was not liable to be paid by them since the maximum stamp duty which was of Rs. 25 lakhs payable on Articles of Association (AOA) as per the provisions of the Stamp Act, had already been paid by them in 1992.

Consequently, the respondent wrote a letter seeking a refund of the payment of Stamp Duty of Rs. 25 lakhs but this request was turned down stating that whenever the authorized share capital of a company is increased, the stamp duty is payable on each such occasion at the time of filing of Form No. 5 and it is not a one-time measure. Aggrieved by the same, the respondent filed a writ petition before the High Court seeking a refund of Stamp Duty of Rs. 25 lakhs with interest, paid by them inadvertently. The High Court ruled in favor of the respondent and held that Form No.5 is not an instrument as defined by Section 2 of the Stamp Act and that stamp duty can only be charged on AOA, where the maximum duty (Rs.25 Lakhs), payable as per the amendment has already been paid. An appeal contesting the same was preferred before the Apex Court.

Submissions on behalf of the Appellants/State

The Counsel submitted that every time a company increases its share capital, it is a separate taxing event and stamp duty is liable to be paid irrespective of whether the maximum amount payable under the section has previously been paid. Further, he relied on Section 14 A of the Stamp Act and contended that any material or substantial alteration in the character of an instrument requires a fresh stamp duty according to its altered character. Hence, the maximum cap of Rs. 25 lakhs which was introduced after the payment of Stamp Duty of Rs.1,12,80,000/- cannot be taken into consideration in any case.

Submissions on behalf of the Respondents

The Counsel submits that it is only the Articles of Association of a company which are chargeable to Stamp Duty under Article 10. The Form No.5 which is being contended by the appellants to be a separate instrument is completely alien to the Stamp Act as it serves a very limited purpose of giving notice to the Registrar that a company has increased its share capital beyond the authorised share capital. She further submitted that increase in the share capital of a company does not materially or substantially alter the character of the Articles of Association so as to fall within Section 14A of the Stamp Act. Thus, the counsel through a catena of judgement contended that the fiscal statutes have to be construed strictly

Court’s Analysis and Judgement

The Court examined the relevant provisions of Stamp Duty Act and quoted the definition of instrument. The first question before the Court was whether the notice sent to the Registrar in Form No.5 is an “instrument” as defined under Section 2(l). On perusal of the provisions of Companies Act noted that it is the Registrar who is the custodian of the articles of a company and not the company. Thus, when a company has to alter the same or modify its share capital as recorded therein, it has to pass a resolution and file its Form No. 5. It relied on the decision of Allahabad High Court in New Egerton Woollen Milthels, In re, where the Court answered the above question in negative. The Court noted that filing of Form No. 5 is only a method prescribed, whereby “notice” of increase in share capital has to be sent to the Registrar, within 30 days of passing of such resolution. It further emphasized that it is only the articles which are an instrument within the meaning of Section 2(l) of the Stamp Act and not the Form No. 5.

Further, the Court addressed the question on whether the increase in share capital of the respondent would mandate the payment of Stamp Duty on the materially alters the character of the instrument, i.e., Articles of Association or whether the same could be considered as a part of and valid according to Section 31(2) of the Companies Act. The Court asserted that it is a settled position of law that in case of conflict between two laws, the general law must give way to the special law. A conjoined reading of the Stamp Act and the Companies Act would show that while the former governs the payment of stamp duty for all manner of instruments, the latter deals with all aspects relating to companies and other similar associations. Hence, stated that the Companies Act which is the special law overrides the General Law (Stamp Act) and thereby, any increase in the share capital of the company also shall be valid as if it were originally there when the Articles of Association were first stamped.

Secondly, on the question of whether the maximum cap on stamp duty is applicable every time there is an increase in the share capital or it is a one-time measure. The Court ruled that the Maharashtra Stamp (Amendment) Act, 2015 which amended the charging section for Articles of Association i.e., Article 10 of the Stamp Act fortifies on the fact that the maximum cap of Rs. 25 lakhs would be applicable as a one-time measure and not on each subsequent increase in the share capital of a company.

The Court rejected the contention of appellant that the stamp duty paid before the amendment cannot be taken into account and held that it is true that the amendment does not have retrospective effect, however since the instrument ‘Articles of Association’ remains the same and the increase was initiated by the respondent after the cap was introduced, the duty already paid on the same very instrument will have to be considered and that it is not a fresh instrument which has been brought to be stamped, but only the increase in share capital in the original document, which has been specifically made chargeable by the Legislation.

The Apex Court therefore, dismissed the appeal and upheld the order of the Bombay High Court. Accordingly, it directed the appellants to refund Rs. 25 lakhs paid by the respondent.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Judgement Reviewed by – Keerthi K

Click here to view the Judgement

0

The Court must first ascertain the bona fides of the explanation offered by the party for condonation of delay and cannot allow it as a matter of generosity: Supreme Court

Blog , , , , , ,

Case title: Union of India & Anr. Vs Jahangir Byramji Jeejeebhoy

Case no.: S.L.P. (Civil) No. 21096 of 2019

Decision on: April 3rd, 2024

Quoram: Justice Aniruddha Bose and Justice J.B. Pardiwala

Facts of the case

The suit property situated at Staveley Road, Pune was leased by the respondent in favour of the appellants (Centre) in 1951. The appellants however, breached the terms of the lease deed, which led to the institution of civil suit by the respondents. The Court ruled in favour of the respondents allowing them to recover the possession of their suit property & arrears towards the rent. Subsequently, the plea challenging the judgement was dismissed by the Appellant Court.

The appellants contested the same before the High Court of Bombay invoking its supervisory jurisdiction under Article 227 of the Constitution of India. But, it was dismissed for non-prosecution. In 2019, the appellants through a Civil Application sought for restoration of the said petition and prayed for condonation of 12 years and 158 days delay in preferring such restoration application. However, a Single Judge Bench of this Court through an impugned order declined the plea. Consequently, it was presented the Apex Court

Submissions on behalf of the Appellants

The Counsel for the State submitted that the appellants were entitled to the condonation of 12 years and 158 days delay in accordance with the merits of the case. In light of the fact, that that the suit property being under the ownership of the Union of India and the same held by the respondent on old grant lease, he emphasized that it shall not permit the respondent in his capacity as a private party to deprive the Government of its land after having admitting that the super structure alone belongs to him and not the land.

Submissions on behalf of the Respondents

The Counsel submitted that the High Court was correct in passing the impugned order and contended that there was no sufficient ground to grant condonation for such a long and inordinate delay in filing the restoration application. Thereby, he contended that there is no merit in entertaining the present plea.

Issue – Whether the High Court has committed erred in passing the impugned order and are the appellants entitled to condonation for the delay in filing the restoration application?

Court’s Analysis and Judgement

The Court on perusal of the materials on record highlighted the suggestion given by this Court to the appellants. It stated that if the possession of the suit property is handed over to the respondent, then the Court might consider the restoration of the petition, despite of a long and inordinate delay. But however, non-compliance on the same led to the dismissal of appellants’ plea. It noted that the fact whether the litigant is a private party or a State or Union of India is irrelevant when condoning the gross delay of more than 12 years. The Court asserted that while considering the plea for condonation of delay it must first ascertain the bona fides of the explanation offered by the party seeking condonation. Further, it stated that only if there sufficient cause established by the litigant and is equally balanced between the parties the court might proceed with the merits of the matter.

It noted that the question of limitation is not merely a technical consideration and should be based on the principles of sound public policy and principles of equity thus, cannot be determined at the whims and fancies of the appellants. The Court further, referring to various authorities noted that the High Court has not erred in passing the impugned judgement. It held that the appellants have failed to satisfy the vital test for condoning the delay and hence, stated that the same cannot be allowed as a matter of generosity. Accordingly, it dismissed the instant appeals. The Court through the Judgment has laid down a clear cut legal framework on allowing for condonation of delay and reiterated the settled law of bonfide explanation in seeking the same.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Judgement Reviewed by – Keerthi K

Click here to view the Judgement

1 2 3 … 10