#Report Archives - Prime Legal

4 Jan

The Previous Order Which Is Correct In Law Can Not Be Modified By The Interim Application : Bombay HC

Prime Legal

Blog #Bombay HC, #CPC, #Indian Succession Act, #law, #Report

TITLE : Mangaka Sarosh Bana v Renuka alias Rekha Satish Narwankar

CORAM : Hon’ble Justice Milind N Jadhav

DATE : 3^rd January 2024

CITATION : Testamentary Petition No. 1996 Of 2022

FACTS

This Interim Application is filed by the Applicant – Original Respondent / Caveatrix for seeking modification of the order dated 04.07.2023 passed by the court. Petitioner, married younger daughter of deceased late Kamlakar Dattopant Abhyankar for seeking probate of last Will and Testament of the deceased. The Applicant Caveatrix is the married elder daughter of the deceased. Testamentary Petition 1996 of 2022 was filed on 06.04.2022. Petitioner is the sole executor in the Will. Along with the Petition notarized consent Affidavit dated 09.03.2022 was filed by the Applicant / Caveatrix giving her No- objection and free and full consent for grant of probate of the Will of the deceased in favour of the Petitioner justifying surety for legacy to be dispensed with and waiving service of citation upon her.

However subsequently after 10 months, on 18.01.2023 the Applicant / Caveatrix filed Caveat No. 89 of 2023 to oppose grant of probate in favour of original Petitioner by contending that she was not aware about the Testamentary Proceedings as also disowning her own consent affidavit which was executed and notarized by her. Assets of the deceased comprised of four movable properties and one immovable property. Learned Advocates informed the Court on 04.07.2023 that all movable assets were apportioned and distributed equally between the two legal heirs i.e. daughters of the deceased. They informed the Court that now the only property remains is the immovable flat belonging to the deceased situated at Mumbai Central. after taking instructions from the Caveatrix, learned Advocate agreed for apportionment / distribution of the said flat in equal proportion. Court passed the order in directing issuance and grant of Letters of Administration along with Will.

The present Interim Application is now filed on 28.08.2023 seeking a modification to the effect that if the parties had agreed to claim the legacy in equal proportion i.e. 50% each.

LAWS INVOLVED

Section 2(h) of Inidan Succession Act, 1925 :

(h) “Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.Section 3(5) of The Maharashtra Recognition Of Trade Unions And Prevention Of Unfair Labour Practices Act, 1971.

Section 96 of Code Of Civil Procedure, 1908.: This allows an aggrieved party to appeal a decree passed by a court exercising its original jurisdiction to a higher authority designated for this purpose.

ISSUES

Whether the court needs to alter the older order of the court under section 96 of Code of Civil Procedure; Whether the modification can be granted by the interim application under Section 151 of the Civil Procedure Code of 1908.

JUDGEMENT

By analyzing the witnesses in the proceedings, it was observed that the present Application has been filed by the Applicant / Caveatrix since there is reluctance to communicate and respond by the original Petitioner who is the younger sister of the Applicant Caveatrix. Considering the order passed on 04.07.2023 and the consent recorded there is no error in the judgement passed by the court in the previous order. The said order can’t be corrected in the manner as it is impermissible in law to do so. Once the consent affidavit has been filed by the Applicant / Caveatrix and she having agreed before the Court to apportion the estate of the deceased and distribute the same to the extent of 50% each, modification sought for by the present Interim Application cannot be granted.

“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- Sanjana Ravichandran

Click here to view judgement

28 Dec

The Bombay HC uphelds the decision of the tribunal in reducing the penalty for multiple funds to Jaipur IPL to 15 crores from 98 crores

Prime Legal

Blog #BOMBAY HIGH COURT, #FEMA, #judgement, #Report, Cricket

TITLE : The special director V Jaipur IPL Cricket Pvt. Ltd

CORAM : Hon’ble Justice K.R Shriram and Hon’ble Justice Dr. Neela Gokhale

DATE : 13th December, 2023

CITATION : FEMA Appeal no.1 of 2020

FACTS

These appeals are filed under Section 35 of the Foreign Exchange Management Act, 1999 under the order passed by the authority of FEMA. The quantum of total penalty imposed upon the appellants which was 98.35 crores was reduced to 15 crores only. After receiving certain information, it was observed that the there was large scale irregularities in the conduct and functioning of the IPL and its franchises. In the process of bidding a certain media house submitted a bid of Rs.268 crores for a team at Jaipur and subsequently only 20 crores of it was transferred. The rest was supposed to be paid by a bidder from Mauritius. 9 Cr were transferred through foreign investments by the bidder. On the other hand, RBI refused to transfer shares from to the bidder as the person was outside India. The respondents were held to be violating the provisions of Section 6(3)(b) of FEMA and Regulation 5(1) of the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2000 and paragraph 8 of Schedule I further read with Regulation 5 of Foreign Exchange Management (Permissible Capital Account Transactions) Regulations, 2000.

LAWS INVOLVED

Section 6(3)(b) of FEMA states that the RBI Can restrict the transfer of certain securities and also regulate them.

Regulation 5(1) of the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2000 provides for the permissions that is required to allow a person outside India to make investments.

“A person resident outside India may subscribe, purchase or sell capital instruments of an Indian company in the manner and subject to the terms and conditions specified in Schedule 1.”

ISSUES

Whether the reduction of money to 15 crores valid?

JUDGEMENT

The court dismissed the appeal on the ground that there is nothing perverse in the tribunal order to reduce the amount to Rs.15 cr. By applying the doctrine of proportionality, the court agreed with the order of reducing the penalty amount.

Under Section 35 of the FEMA, an Appeal will lie only in regard to a question of law arising out of such order as appealed against and in the present case the there is no question of law proved by the appellant.

Written by- Sanjana Ravichandran

Click here to view judgement

14 Nov

Merely Because Some Of The Witnesses Are Interested Or Inimical Witnesses, Their Evidence Cannot Be Totally Discarded: Supreme Court Of India

Prime Legal

Blog #law, #Legal News, #Report, #SupremeCourt

Title: Madan v State of Uttar Pradesh

Citation: Criminal Appeal No. 1790 Of 2017

Coram: Justice B.R. Gavai

Decided On: November 09, 2023.

Introduction:

These appeals challenge the judgment and order dated 22nd February 2017, passed by the Division Bench of the High Court of Judicature at Allahabad in Capital Case Nos. 3359 and 3520 of 2015 with Reference No. 9 of 2015 and Criminal Appeal No. 3519 of 2015, thereby dismissing the appeals filed by appellant Madan and another accused Ishwar; whereas, it allowed in part, the appeal filed by appellant Sudesh Pal. By the said judgment, the High Court confirmed the judgment and order of conviction and sentence dated 31st July 2015 passed by the trial court in Sessions Case No. 09/2005 with Sessions Case No. 838 of 2005 and 10/2005, in respect of appellant – Madan, while commuting the sentence of capital punishment to life imprisonment in respect of appellant – Sudesh Pal.

Facts:

The incident took place at 5.30 PM and the FIR came to be registered on the same day at 7.40 PM. According to the FIR, Smt. Vimla Devi, who was the mother of Ram Kishan, cousin of Lokendra (PW-1), was a candidate in the election for Gram Pradhan; whereas the wife of one Arshad was the opposing candidate. On the one hand, Lokendra (PW-1) supported the candidature of Vimla Devi; whereas, the family of appellant Madan and Ram Bhajan supported the candidature of the wife of Arshad. When Vimla Devi came to be elected as Gram Pradhan along with Lokendra (PW-1), who also came to be elected as a member of the Gram Panchayat, appellant Madan and his family members bore a grudge with Lokendra (PW-1) and others on account of the feeling of jealousy.

The FIR states that on 14th October 2003, at about 5.30 PM, when Satendra, the real brother of Lokendra, his nephew Sunil, cousin Ram Kishan s, Sukhpal Singh and his father Jai Singh were going to the house. and had reached the house of Rashid s/o Mustafa, appellant Madan along with Rajveer, Ram Bhajan, Ramveer, and Kanwar Pal who were the sons of Ishwar along with Ishwar himself, who was the brother-in-law (sala) of appellant Madan, also known as Pahalwan, appellant Sudesh Pal, who was the real brother-in-law (sadu) of appellant Madan along with Neetu, who was the nephew of appellant Madan, armed with licensed guns, rifles and country-made pistols came from behind and started firing indiscriminately. As a result of the said firing, Satendra and Sunil fell down on ‘Khadanja’.

Rizwan, Rihan and Masooq Ali succumbed to their injuries and died on the way and their bodies were accordingly kept in their houses. Lokendram1) also reached the place of the incident and witnessed the incident with his own eyes and requested to register the report and take legal action.

Court’s Judgement and Analysis:

It can thus be seen that merely because some of the witnesses are interested or inimical witnesses, their evidence cannot be totally discarded. The only requirement is that their evidence has to be scrutinized with greater care and circumspection. In the present case, both the High Court and the trial court have meticulously scrutinized the evidence and found the testimony of the eye witnesses trustworthy and reliable. Court found that merely because there are certain inconsistencies in the evidence of the witnesses, their evidence cannot be discarded.

Court found that the present case is not a case wherein it can be held that imposition of death penalty is the only alternative. The evidence of witnesses would show that the role attributed is that all the accused persons including both the appellants herein had fired shots and indiscriminately indulged in the said firing.

The trial court imposed capital sentence on appellants Madan and Sudesh Pal. However, insofar as accused Ishwar is concerned, though the evidence against him is on similar lines, he was sentenced to life imprisonment. The High Court, on the basis of the same evidence, though confirmed the death penalty insofar as appellant Madan is concerned, partly allowed the appeal of Sudesh Pal and sentenced him to undergo life imprisonment.

Written by- Sushant Kumar Sharma

Click here to view judgement

9 Nov

Application In The Prescribed Manner Is Required For The Remedy Under Rule 12-B Of Bihar Prohibition & Excise (Amendment) Rules: High Court Of Patna

Prime Legal

Blog #judgement, #Legal News, #Patna HC, #Procedure, #Report

Title: Binod Kumar v State of Bihar

Citation: CWJC No.15688 of 2023

Coram: Honourable Mr. Justice P. B. Bajanthri And Honourable Mr. Justice Ramesh Chand Malviya

Decided On: 08-11-2023

Introduction:

In the instant petition, the petitioner has prayed for the following reliefs:

For issuance of writ/writs, order/orders, direction/directions, commanding the respondents to unseal the petitioner’s Cement Godown situated in the village- Rudahan, Area- 5400 Sq.fit, which has been sealed in connection with Bochahan P.S. Case No. 318/2023, registered for an offence punishable under Section 30(a) of the Bihar Prohibition and Excise Act, 2018.

Facts:

The subject matter of premises, namely, Khata No. 109, Kheshra No. 10 about 5400 Sq. ft., cement godown situated in village – Rudahan, P.S. – Bochahan, District – Muzaffarpur is stated to be involved for the offences under the Bihar Excise Act, 2016. It is reliably learnt that about 279 litres of foreign liquor was seized from the aforementioned godown and it has been seized. The present petition is for de-sealing.

Learned counsel for the State-respondent submitted that having regard to the huge quantity seized and it is not appropriate for this Court to direct for de-sealing the premises. Further, it is also pointed out that confiscation proceedings is under going.

Court’s Judgement and Analysis:

Petitioner has submitted representation on 05.10.2023, there is no action on the part of the concerned respondent. At the same time, petitioner has remedy under Rule 12-B of Bihar Prohibition & Excise (Amendment) Rules, 2022. But the petitioner is required to submit application in the prescribed form in respect of de-sealing of seized premises.

Therefore the petitioner was directed to approach the concerned authority while making application under the Rule 12-B of Bihar Prohibition & Excise (Amendment) Rules, 2022.

Application is to submitted before the competent authority, the competent authority is directed to take note of all the factual materials and proceed to pass order and communicate the same to the petitioner within a reasonable period of three weeks from the date of receipt of petitioner’s application under Rule 12-B of Bihar Prohibition & Excise (Amendment) Rules, 2022.

Written by- Sushant Kumar Sharma

Click here to view judgement