#bombayhighcourt Archives - Page 9 of 10

8 Aug

The litigant should not suffer for want of necessary prayers for condonation of delay: Bombay HC

Prime Legal

Blog #bombayhighcourt, #delay, #sec.138NIAct

Title: Praveen Otarmal Parmar v. M/s. Abhiroop Associates and Mr. Uday Raghunath Manerikar

Decided on: 7^th AUGUST 2023

+ CRIMINAL APPEAL NO. 1045 OF 2006

CORAM: S. M. MODAK, J.

Facts of the Case:

The Court of 11th Jt. Judicial Magistrate First Class, Pune acquitted the respondent for the offence punishable under Section 138 of Negotiable Instruments Act vide judgment dated 23rd March, 2006 in Case No.298 of 2003. The complaint was not filed in time and hence respondent was acquitted. It was the complainant who has preferred this Appeal.

The appellant had first sent a notice on 31^st Mar, 2006 and received no response from the firm or the partner. Notice was sent again on 16^th April and 21^st April to the firm and the partner respectively. Finally, he filed a complaint on 5^th June. The trial court held that there was a delay of 4 days (time period calculated from 31 March) and therefore, the accused were acquitted.

Issues

a) When the complainant filed the complaint on the basis of notice posted on second occasion, whether it was proper for the trial court to dismiss the complaint as time barred?
b) Whether trial Court ought to have given an opportunity to the complainant to explain delay occurred?

Contentions

The appellant claimed that when the process was issued and when case has proceeded it was not proper for the trial Court to dismiss the complaint. It was obligatory on the trial Court either to condone delay on its own or ought to have given an opportunity to offer an explanation. They explained that the notices sent were not registered and were returned to him for being not claimed, which is why he sent fresh claims in the month of April. Thus, he explained this to be the right date from which the period of limitation should be calculated and also that the complaint was filed on the basis of second notice.

The Respondents supported the order and submitted that there is no duty cast upon the trial Court to condone the delay particularly when the complainant has not prayed for condonation of delay. The Respondents presented evidence that the notices were returned with the mark “intimation delivered.”

Decision

The Court held that since the prosecution under Negotiable Instruments Act is quasi-civil. The notices came back with the mark “unclaimed” and thus, the appellant needs to be given an opportunity to pray for condonation of delay. The Court added that the litigant should not suffer for want of necessary prayers for condonation of delay. Hence, the appeal was allowed.

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Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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7 Aug

Bombay High Court upholds challenge on the orders by Deputy Commissioner of Sales Tax under Sec. 25 of MVAT Act, 2002

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Uncategorized #bombayhighcourt, #MVAT

Title: Kalpataru Power Transmission Ltd. v. State of Maharashtra & Ors.

Decided on: 3^rd AUGUST, 2023

WRIT PETITION NO.4505 OF 2022

CORAM: G. S. KULKARNI & JITENDRA JAIN, J.J

Facts of the Case

During the financial year 2006-07, the Petitioner executed two projects of electricity distribution line for Maharashtra State Electricity Distribution Company Limited (MSEDCL) and one works contract project for Gas Authority of India Limited (GAIL) for laying down the pipeline of gas between Dabhol to Panvel. The Petitioner with respect to two contracts with MSEDCL claimed deduction from the contract price @ 25% as per Table prescribed in Rule 58 of the MVAT Rules for arriving at value of transfer of property in goods. However, with respect to contract with GAIL, the Petitioner claimed deduction under Rule 58(1)(a)-(h) on actual basis aggregating to Rs.30,59,93,405/-.

The Deputy Commissioner of Sales Tax issued a notice for verification of the books of account, to which the petitioner duly replied and submitted all the documents. In an order by him in 2018, it was mentioned that tax deduction on account of profit on supply of labour & service was not allowable. Profit on sale of labour only permissible. The Petitioner further submitted that for turnkey projects, there cannot be two separate agreements, one for sale of the goods and another for supply of labour and services.

DCST in the said order held that since the Petitioner had failed to submit correct amount of deduction of profit, they were not eligible to get the deductions provided under Rule 58(1)(a) to (h) and, therefore, the Petitioner would be allowed to claim deduction only as per Table under Rule 58(1) of the MVAT Rules. DCST, therefore, allowed deduction not on the actual basis with respect to GAIL project, but by applying a rate of 20% as per Serial No.11 of Table to Rule 58(1)

Issues

Whether the impugned orders by the Deputy Commissioner of Sales Tax to initiate proceedings under Section 25 of the MVAT Act were valid?

Decision

Held that the impugned order is without jurisdiction. In the show cause notice, jurisdiction is sought to be assumed on the premise that for claiming deduction of profit on sale of labour, there has to be two contract agreements by the dealer for the work with principal. In the present case, it was an indivisible contract without bifurcation of the goods and the service component which goes in for execution of the work awarded to the contractor.

Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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4 Aug

The right to sue does not devolve to the legal heirs of deceased appellant in the appeal for enhancement of maintenance under the Hindu Adoption And Maintenance Act: Bombay High Court

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Blog #bombayhighcourt, #Maintenance

Title: Jayshree @ Pushpa and Anr. v. Satyendra

Decided on: 18th JULY, 2023

+ FAMILY COURT APPEAL NO. 35 OF 2021

CORAM: RAVINDRA V. GHUGE, & Y. G. KHOBRAGADE, JJ..

Facts of the Case:

The applicant who is married daughter of the original Appellant and Respondent has filed present application seeking permission to bring her on record being legal heir of her deceased mother-appellant in an appeal for enhancement of maintenance.

Her mother (now deceased) was living away from her father and had therefore, applied for maintenance of 1.5 lakhs p.m. and was receiving Rs. 10,000 p.m. Dissatisfied by the amount of compensation, she appealed again, but during the pendency, the mother died. Therefore, the cause of action survives and the applicant is having right to continue with the appeal. Hence, it is prayed for bringing the applicant on record being legal heir of the original appellant.

Issues

Whether the right to sue survives/lies with the legal heirs of deceased appellant in the appeal for enhancement of maintenance under the Hindu Adoption And Maintenance Act?

Contentions

The appellants prayed that the right would continue.

The Respondents contended that the right to claim maintenance is in the personal nature and cause of action comes to an end on the death of the said person who had claimed maintenance under the statute. Therefore, in present case cause of action ceases on death of the original Appellant (wife) and no right accrues to the applicant-married daughter to continue with the cause for enhancement of the maintenance. The “right to claim maintenance” is not a proprietary right which devolves to the legal heirs of the wife or the husband. Order 22 Rule 1 provides that death of the plaintiff or defendant would not cause the suit to abate, if right to sue survives.

Decision

The Court held that the present applicant was not minor and she was not dependent on income of the Appellant. Therefore, taking into consideration of provisions of Order 22 Rule 1 & 2 of C.P.C., no right to sue survives to the married daughter to claim for enhancement of maintenance in respect of deceased Appellant.

However, the applicant being a legal heir of the deceased appellant, therefore, she has right to recover arrears of maintenance granted under Judgment and Order dated 4th February, 2021 against her father/ Respondent after obtaining succession certificate from the competent court of law.

Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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4 Aug

Bombay High Court dismisses challenge on the Mahalunge-Maan Preliminary Town Planning Scheme for being premature.

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Uncategorized #bombayhighcourt, #mahalungemaantownplanningscheme, #premature

Title: Chandrakant Uttam Kolekar and Ors. v. State of Maharashtra & Ors.

Decided on: 2nd AUGUST, 2023

WRIT PETITION NO. 10899 OF 2022

CORAM: G. S. KULKARNI & R. N. LADDHA, JJ.

Facts of the Case

The petitioners seek to challenge the Mahalunge-Maan Preliminary Town Planning Scheme No.1 sanctioned under Section 86(1)(a) of the Maharashtra Regional and Town Planning Act, 1966. The villagers of Mahalunge and Maan region vehemently opposed the town planning scheme.

Issues

Whether the Mahalunge-Maan Preliminary Town Planning Scheme No.1 sanctioned under Section 86(1)(a) of the Maharashtra Regional and Town Planning Act, 1966 is valid?

Contentions

The petitioners claim that the authorities offered them FSI instead of monetary compensation, which they weren’t ready to accept. The villagers were also told that they would be given developed plots for the 50% of their land. Moreover, they were not even given adequate details regarding the time of completion of the project or whatsoever. Because the Authorities wanted to make a 32m wide road, they wanted to acquire and merge the land, while the villagers were against it for it would affect their create disputes and affect their livelihood. When the matter was referred to PMRDA they made the town-planning scheme without considering these objections. The petitioners have expressed concerns that the draft Scheme does not include provisions for the acquisition of final plots designated for local society amenities development, as required by Section 64(a) of the Act. Moreover, police were brought by the respondents to threaten the villagers to surrender their lands. The government had not appointed an appellate Tribunal to address their concerns.

Decision

The Court pointed out that the petitioners would have an opportunity to echo all their grievances, if any, in a manner known to law at the appropriate time, including before the Arbitrator, after the final Scheme is notified. Thus, it refrained from expressing its opinion on the merits of any of their contentions as being canvassed in the present proceedings, or in respect of any grievances/issues the petitioners may have in future.

Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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3 Aug

Bombay High Court acquits a man convicted for murder for lack of evidence

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Blog #bombayhighcourt, #lackofevidence, #murder, acquittal

Title: Suresh v. The State of Maharashtra and Ors.

Decided on: 18th JULY, 2023

+ Cri.Apeal.513/2016

CORAM: SMT. VIBHA KANKANWADI AND ABHAY S. WAGHWASE, JJ.

Facts of the Case:

Appellant had illicit relations with one Shobhabai. Deceased Anil desisted appellant from maintaining and continuing such relations. Therefore, according to prosecution, deceased was viewed as obstruction and to eliminate him, appellant called him near the water tank and by use of knife he stabbed him to death and thereafter threw the body in the well for causing disappearance of evidence. Hence, he convicted for offences under IPC Sec. 302 and 201. This was challenged by him in this appeal.

Issues

Was the conviction of the appellant valid?

Contentions

The appellants claimed that the conviction was wrong for there was no incriminating evidence proving his guilt; The conviction was based only on circumstantial evidence and not any direct evidence. The prosecution was not able to prove beyond reasonable doubt and therefore, the accused must be given the benefit of doubt.

The Respondents contented that the appellant was rightly contended as there was enough incriminating evidence. The appellant being the last person in the company of deceased, he is rightly arrested, tried and rightly held guilty. As per the statement of the deceased’s wife he went to the tank (place where he was found dead) only after receiving a call from the appellant. The appellant was also seen purchasing a knife. All the evidence directly points to his involvement in the death and therefore, he is rightly convicted.

Decision

The evidence presented by the Respondents is not direct evidence. None of the circumstances firmly and cogently proved beyond reasonable doubt. The chain of circumstances is not getting complete. Therefore, case of prosecution cannot be said to be proved beyond reasonable doubt.

Therefore, the appellant was acquitted and the previous order of the Court was set aside.

Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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