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Judgments

(1) Khojeste Mistree of Mumbai Indian Inhabitant; (2) Hoshang N.Wania of Mumbai Indian Inhabitant; (3) Yazdi H.Desai, of Mumbai, Indian Inhabitant; (4) Pervez H.Driver; (5) Freddy Dali Divecha vs (1) Minoo Rustomji Shroff of Mumbai, Indian Inhabitant; (2) Dinshaw K.Tamboly, of Mumbai, Indian Inhabitant; (3) Maneck H.Engineer of Mumbai, Indian Inhabitant; (4) Burjor H.Antia of Mumbai, Indian Inhabitant; (5) Dinshaw R.Mehta, of Mumbai, Indian Inhabitant; (6) Dadi B.Engineer, of Mumbai, Indian Inhabitant; (7) Charity Commissioner, Maharashtra State; (8) Dr.Syrus Darvish Irani of Mumbai, Indian Inhabitant; (9) Dr.Viraf Jehangir Kapadia; (10) Parvez H.Driver; (11) Fali Pocha; (12) Rustom Sheriar Tirandaz; (13) Persi Russa Patel; (14) Zeree B.Jehangirji; (15) Noshir Burjorji Captain; (16) Neville Kersi Mukadam; (17) Freddy Dali Divecha; (18) Phiroze C.Amroliwalla; (19) Zeree B.Jehangir; (20) Dr.Cyrus D.Irani; (21) Khojeste Mistree; (22) Hoshang N.Wania; (23) Yazdi H.Desai  [BOMBAY HIGH COURT, 30 Apr 2008]
Whether High Court had no jurisdiction to modify or sanction the Scheme for the Election of Trustees of the Funds and Immovable Properties of the Parsee Panchayat of Bombay or said power was vested only with the Charity Commissioner under the provisions of Bombay Public Trusts Act, 1950? - Whether petitioners-trustess had no locus-standi to file petition since four of the Petitioners had already resigned? - Held, in Misc.Petition No.270 of 1969 Single Judge had considered the issue in depth and referred to the judgment of the Hon'ble Supreme Court in Raje Anandrao Vs. Shamrao and Ors. and categorically held that this Court has jurisdiction to entertain the Petition and the Charity Commissioner did not have jurisdiction in that behalf - From plain reading of s. 50(a)(iii) of the Bombay Public Trust Act a Charity Commissioner can modify the scheme in respect of the trust which has been framed by him i.e., any scheme framed by this Court in a suit will be outside the purview of powers of the Charity Commissioner u/s 50(a)(iii) of the Act - In Appeal No.167 of 2007 it was held that the resignations of the said four Petitioners were not at all effective in law in the sense, they were no valid resignations in the eye of law thus Petitioners do have locus-standi to file the above petitions for sanction of Scheme - It is in general interest and in fact would further interest of the trustees and incorporate the principle of Universal Adult Franchise of direct election of trustees and the Anjuman Committee has to be dispensed with and there is absolutely nothing malafide in the same - Appeal dismissed.
In Re : Global Securities Limited vs   [CHAIRMAN, SECURITIES EXCHANGE BOARD OF INDIA, 30 Apr 2008]
The Judgment was delivered by : BIJU. S (ADJUDICATING OFFICER)1. Securities and Exchange Board of India (hereinafter referred to as "SEBI") has initiated adjudication proceedings against SMC Global Securities Limited (hereinafter referred to as "the
Nahalchand Laloochand Private Limited vs Panchali Co-Operative Housing Society Limited  [BOMBAY HIGH COURT, 25 Apr 2008]
Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963 - Appeal to challenge order dismissing suit filed for permanent injunction to restrain defendants from encroaching upon/ trespassing on the suit premises and/or in any manner disturbing/ obstructing /interfering with the possession of the plaintiffs in respect of the suit premises - Whether the plaintiff-company has the right to sell the suit parking spaces separately to anyone including the members of the defendant-Society in view of the provisions of the MOFA, the model agreement prescribed by the State Government under the same and the Development Control Regulations, 1991? - Held, stilt car parking spaces is part of the common amenities and it cannot be treated to be a separate premises / garage which could be sold by the Developer to any of the members of the society or to an outsider - MOFA expressly recognises the promoter's right to retain premises which remain unsold - Word "premises" does not include "stilt parking spaces" - Undertakings furnished by the flat purchasers and relied upon by the builder are hit by the provisions of Section 16 of the MOFA and are, therefore, illegal and void ab initio as has been rightly held by the trial Court - Under the MOFA the developer's right is restricted to the extent of disposal of flats, shops and/or garages, which means that any premises which is included in the FSI can be sold by the developer / promoter - Area of the stilt parking space is not included in the FSI nor is it assessable for the Corporation taxes, hence disposal of three stilt parking spaces by the developer even before the occupation certificate was issued by the Corporation or thereafter is per se illegal - Appeal dismissed.
Dr. Rajaram Dhondiba Shingte vs (1) State of Maharashtra, Through Secretary, Education Department, Mantralaya, Mumbai; (2) Secretary, Finance Department Mantralaya, Mumbai; (3) Director of Education, Maharashtra State, Pune; (4) Shivaji University, Kolhapur; (5) Rajaram College, Kolhapur; (6) Yashavantrao Chavan Science College, Kkarad, Satara  [BOMBAY HIGH COURT, 24 Apr 2008]
Writ petition filed under art. 226 of the Constitution of India to seek pension and other pensionery benefits from the respondents - Petitioner, a lecturer and Principal, was forced to resign from service after completing 23 years of continuous service due to critical mental health condition of his mentally challenged son when there was no provision for voluntary retirement in Bombay Civil Services Rules which came into force in 1980 - Court had in writ petition directed State Government to consider the petitioner's case u/r. 23 of the Maharashtra Civil Services (Pension) rules, 1982 and respondent no.1 informed petitioner that since petitioner had resigned from service his case could not be considered u/r. 23 of the MCS Rules - Held, petitioner had resigned so resignation cannot be treated as retirement - Petitioner having resigned he cannot claim any pensionery benefits from the State - Petition dismissed.
Latifkhan vs (1) State of Maharashtra; (2) Nasiroddin; (3) Bismillabi  [BOMBAY HIGH COURT, 23 Apr 2008]
Appeal to challenge order granting bail to respondents on furnishing bail bonds in sum of Rs. 25, 000/- each with one surety - Consistent dying declarations against respondents 2 and 3 - Held, material on record, prima facie, shows that the respondents No. 2 and 3 are involved in a serious offence punishable u/s. 498-A and 302 of the I.P. Code; respondent No. 2 is a Police Constable, his remaining away on bail is likely to influence the prosecution witnesses - Bail order which is rendered in ignorance of basic requirements may be cancelled - While considering bail application, only prima facie assessment of evidence needs to be made - Impugned bail order is unsustainable to the extent of the respondent No. 2; as regards the respondent No. 3, it may be said that she is entitled to benefit of Proviso u/s. 437 of the Criminal Procedure Code being a woman, it is unlikely that she would misuse the liberty, she is not influential so as to tamper with the prosecution evidence - Appeal partly allowed.
Indusind Bank Limited, Through Its Legal Executive, Ravindrakumar Prakash Bhargodev, Aurangabad vs State of Maharashtra, Through Police Station, Kranti Chowk, Aurangabad  [BOMBAY HIGH COURT, 22 Apr 2008]
Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - s. 14 - Petitions to challenge order of CJM rejecting petitioners applications u/s. 14 of the Act - Whether, a creditor requesting assistance u/s. 14(1) of the NPA Act is required to be armed with a decree for recovery of dues from the borrower, from competent court or D.R.T.? - Held, statement of objects and reasons and certain provisions from the NPA Act which clearly indicate that this is a special legislation enabling the creditor to recover his dues by taking measures as provided in the NPA Act and in the manner as prescribed in the said Act, without getting entangled in the legal process and the delay or time consumption that occurs when a party is required to recover its dues through legal proceedings - Secured creditor is not required to obtain a decree from a competent court/DRT, before being entitled to take steps as permitted by NPA Act for the purpose of enforcement of recovery, by taking steps against the secured assets - Authorities referred u/s. 14(1) would be the CMM, so far as metropolitan area is concerned and where there is a CMM appointed and posted; so far as other area is concerned, there being no post and appointment of CMM, secured creditor desirous of availing benefit of s. 14(1), will have to approach DM - CJM could not have rejected assistance to the petitioner, if he (CJM) otherwise had jurisdiction to entertain such a request, on the ground that the secured creditor is required to be armed with a decree from the competent court; assistance cannot be refused either by CMM or DM, on this ground - CMM or DM acting u/s. 14, will not be required to serve a notice upon the borrower or a third party but, the authority will have to verify from the bank/financial institution/secured creditor that the notice u/s. 13(2) of the NPA Act is served; that the secured assets are within territorial jurisdiction of the authority concerned; that the borrower has not discharged liability as indicated in the notice u/s. 13(2) and that the secured creditor has communicated reasons for rejection of representation, if any, of the borrower - Petitions disposed of.
Shridhar Dhondiraj Kelapure vs (1) General Manager, South Eastern Railway, Garden Reach, Calcutta; (2) Divisional Railway Manager, South Eastern Railway, Nagpur; (3) Commissioner, First Labour Court, Nagpur  [BOMBAY HIGH COURT, 21 Apr 2008]
Workmen's Compensation Act, 1923 - s. 3 - Appeal to challenge order dismissing appellant's claim for compensation for suffering disfigurement of face and damage in liver as well as kidney due to allergy of diesel - Appellant worked as Diesel Cleaner with the respondent and claimed compensation of Rs 76, 510/- - Whether allergic condition from which claimant suffered could be said to be occupational disease? - Held, disease becomes an occupational disease when contracting of such peculiar disease could be attributed to a job done by the employee or the material metal etc. used in that factory - A disease could be said to be an occupational diesease, if number of employees suffer from such disease on that establishment; since none else except the claimant, suffers, it cannot be said to be an occupational disease - Contracting of such disease is peculiar to claimant and is not a common phenomena; if it is to become an occupational disease it has to be a common phenomena - Appeal dismissed.
In Re : Kausar India Limited vs   [CHAIRMAN, SECURITIES EXCHANGE BOARD OF INDIA, 21 Apr 2008]
The Order of the Court was as follows :M/s Kausar India Limited, the applicant herein was found to have not complied with Regulation 7 (3) of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations 1997 (hereinafter "Takeover
(1) Abde Musa; (2) Fida-e-Hakim; (3) Adam Bhai, Since Deceased Through Lrs, Sadiquebhai, Yusufbhai; (4) Salim Bhai; (5) Abbas Bhai ; (6) Lilabai vs Lrs of Lalta Prasad. Rukhminibai, Manoj, Santosh, Ajay, Bablu  [BOMBAY HIGH COURT, 15 Apr 2008]
Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 - Second appeal to challenge order holding that suit filed for eviction and recovery of rent ought to have been filed before Small Causes Court, in view of 1984 Amendment to Provincial Small Causes and Presidency Small Cause Courts Act - Appellant contended that Appellate Court erred in not appreciating that clause 13(3)(v) of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949, which deals with the contingency of tenant having found alternate accommodation and, therefore, not needing tenanted premises and change of the original owner or change due to subsequent purchaser having purchased property would make no difference in the situation whatsoever - Held, purchase by appellant No.6 of suit property, after permission granted by Rent Controller had attained finality, cannot be construed as a subsequent event relevant for the purposes of considering the wiping out of bonafide need of appellants No. 1 to 6 i.e. landlords - Consideration of grounds on which the permission came to be granted became insignificant and irrelevant after the suit for eviction was found to have been validly instituted, thus, as notice u/s. 106 of Transfer of Property Act has been found to be validly served and tenancy was found to be validly terminated, it is apparent that the purchase by appellant No.6 during the pendency of Regular Civil Appeal, does not in any way help respondent and the acceptance of said event as subsequent event to nullify the order of Rent Controller by lower appellate Court is, therefore, unsustainable - Appeal allowed with costs.
Taranjit Singh I. Bagga, Amravati vs Maharashtra State Road Transport Corporation, Through Divisional Controller, Amravati  [BOMBAY HIGH COURT, 11 Apr 2008]
Appeal to challenge order holding that in view of the decision of the Apex Court in J.K. Synthetics Ltd. Vs. K.P. Agrawal, Courts below in absence of pleadings and proof of grant of back wages could not have granted back wages - Courts below found that Enquiry Officer had virtually shut out employee's defence and thus held that dismissal of the appellant was thoroughly untenable - Appellant submitted that J.K. Synthetics Vs. K.P. Agrawal, could not at all be interpreted to lay down the law that upon ordering reinstatement of an employee, whose dismissal was found to be illegal, back wages could not have been ordered to be paid - Held, Apex Court has categorically stated that the cases where retrenchment, termination etc. was held to be illegal have to be distinguished from those in which the Court confirms findings of misconduct but only interferes with the punishment; in paragraph 20 the Apex Court has categorically carved out exception of cases where employee was not found guilty of misconduct or is exonerated - Case would fall under the exceptions referred to in paragraph 20 of the J.K. Synthetic Ltd, thus it was not necessary for the learned Judge to interfere with the findings of both the Courts below that the appellant was entitled to full back wages upon his reinstatement - It would be unjust to insist upon a technical requirement of pleading and proof of absence of gainful employment by an employee who is wrongfully dismissed - Appeal allowed.
Central Bank of India, Bombay vs (1) Sion Bakers and Confectioners Private Limited, Bombay; (2) T.N.M. Arunachalam; (3) Keki S. Siganpuria; (4) Taj Mohamed Rahimbux  [BOMBAY HIGH COURT, 11 Apr 2008]
Suit for recovery of plaintiff's-Bank's outstanding dues, due and recoverable from defendants with interest - Plaintiff submitted that defendant no.1-company executed loan documents in respect of Cash Credit (Hypothecation) and term Loan Accounts which defendant no.1 had acknowledged and had informed that prospective buyers of company would deposit consideration amount directly with the plaintiffs but no amount was paid to plaintiff-bank hence suit - Whether plaintiffs proved that defendants were jointly and severally liable to pay a sum of Rs. 77, 071.70 and Rs. 41, 202.00 as claimed in the suit and whether plaintiffs were entitled to decree? - Not a single loan document was proved by the plaintiff-bank through its witness in accordance with the provisions of the Evidence Act - Held, admission is the best evidence against the person giving it - Execution of the loan documents has been admitted and the execution of the agreement of guarantee has also been admitted; defendant no.3 has failed to prove that the said documents were blank documents - Once defendant no.4 has suffered decree on admission that admission binds the defendant No.3 because to that guarantee letter defendant no.3 is also a party and admission of defendant no.4 would very much bind defendant no.3 in view of law laid down in the case of Bhura and another v. Bahadursingh and another - A person having taken guarantee cannot be absolved of his liability as a guarantor unless he makes payment and discharges his liability in toto or claims discharge in accordance with law - A person who signs document which contains a contractual assumption in normal bound by them even though he is not ready, even though he has ignored all the precise legal effect - Suit decreed in toto against defendant No.3 - Application disposed of.
Vishnupant vs State of Maharashtra  [BOMBAY HIGH COURT, 10 Apr 2008]
Appeal to challenge conviction and sentence - Appellant convicted for offence punishable u/ss. 7 and 13 (1)(d) r/w s. 13 (2) of the Prevention of Corruption Act, 1988 - Appellant charged of taking illegal gratification of Rs 500/- for installation of telephone connection - Complainant was persistent in seeking installation and assumed that amount of Rs. 500/- demanded by the appellant was towards illegal gratification notwithstanding the fact that an amount of Rs. 400/-was unpaid by him towards the second demand notice which was in accordance with the official procedure, atleast on two occasions he quarrelled with the appellant, had not ventilated his grievances to the higher officials that appellant was asking for the illegal gratification and he ayed in lodging F.I.R - Held, versions of the panchas do not show that the amount was being demanded towards illegal gratification for doing the work of installation of the telephone connection and that all the other formalities were completed by complainant-Rashid Patel - Two views possible from the circumstances appearing on record, first, the amount was so demanded towards illegal gratification to do the work as alleged by the prosecution, second, complainant PW Rashid Patel did not comply with the second demand notice nor accepted the same and yet, insisted for the installation of the telephone connection at his residence - Conduct of the complainant, smacks of framing appellant in the trap case - Where two views are possible, the view which is favourable to the appellant may be taken - Appeal allowed.
Sanjay Sudhakar Bhosale vs Khristina  [BOMBAY HIGH COURT, 08 Apr 2008]
Revision petition to seek immunity from liability to pay maintenance allowance as per judgment passed in criminal revision petition and to challenge judgment reversing order of dismissal of the respondent's application for maintenance - Wife testified that after six months of the marriage, husband and his relatives started giving cruel treatment to her on account of demand of money and had lodged complaint but her version showed inconsistency in so-called unlawful demand and she also deviated from her pleadings - In suit filed by petitioner for restitution of conjugal rights Judicial Magistrate came to the conclusion respondent was guilty of deserting him without any reasonable excuse - Held, there is no scintilla of evidence to show that really she had lodged a complaint about the matrimonial cruelty, nor her so-called positive statement finds support from her pleadings; her mere statement could not have been taken as gospel truth as regards neglect and refusal of the husband to maintain her; it is overlooked by Sessions Judge that within a short span of the marriage, the wife left his company and no notice was given within a reasonable time by her, seeking restitution of the conjugal rights; inferences drawn by the learned Sessions Judge are improper and incorrect - Petition allowed.
(1) Balaji; (2) Suresh vs State of Maharashtra  [BOMBAY HIGH COURT, 08 Apr 2008]
Appeal to challenge conviction and sentence - Appellants convicted for offence punishable u/s. 376 (2)(g) of IPC - Prosecutrix was rustic, illiterate and inexperienced girl from rural area and she revealed that appellant no.2 forcibly committed sexual intercourse with her and appellant no.1 held her hands, her bangles were broken during the course of such incident, she raised hue and cry and prosecution witnesses reached the place of incident on hearing her cries and she narrated the incident to them and, therefore, both the witnesses had beaten up the appellants and she after returning home narrated the incident to her parents in the evening after they returned to the house from day's work, her version corroborated recitals of the F.I.R. - Medical report showed that there was possibility of sexual intercourse with the prosecutrix because the hymen was found ruptured - Held, once it is found that version of the prosecutrix is worth reliance, then it goes without saying that the offence of rape is duly proved - Father of the prosecutrix consulted other members of the brotherhood because the subject concerned the prestige of the family and marital prospects of the prosecutrix, delay of few hours in lodging the report, under such circumstances is, therefore, not fatal to the case of prosecution -vaginal swab was collected on next day and hence, the finding of the Chemical Analyser cannot be of much significance - Appeal dismissed.
Krishna Sheena Shetty vs (1) Suresh Anant Sawant; (2) Nandkumar Mahadeo Patil  [BOMBAY HIGH COURT, 08 Apr 2008]
Writ petition filed to challenge order impounding documents related to suit property and directing plaintiff to pay deficit stamp duty ten times penalty in suit filed under s. 6 of Specific Relief Act, 1963 - Whether penalty leviable u/s. 34(a)(ii) of the Bombay Stamp Act, 1958 in respect of insufficiently stamped instruments executed prior to 1.5.2005, the date on which the amendment of s. 34(a)(ii) by Maharashtra Act 22 of 2001 came into force, would be u/s. 34(a)(ii) of the Act prevailing before or after the 2001 Amendment? - Held, instruments tendered in evidence, if they are found to be insufficiently stamped, s. 34 of the Act would come into play and in such cases unless the duty with which such instruments are chargeable or in case of the instruments insufficiently stamped the amount required to make up such duty and the penalty, as provided for u/s. 34(a)(ii), is paid such instruments cannot be admitted in evidence - Provisions contained in s. 34(a)(ii), insofar as penalty is concerned, would apply even to the instruments executed prior to 1.5.2001 if such instruments are sought to be produced in evidence after 1.5.2001; penalty cannot be levied on the basis of the provisions of section 34, as applicable prior to 1.5.2001, if the instrument was executed and sought to be produced after this date - Petition allowed.
Commissioner of Wealth Tax, Bombay City-I, Bombay vs Sona Properties Private Limited, Bombay  [BOMBAY HIGH COURT, 07 Apr 2008]
Wealth Tax Act, 1957 - Whether ITAT was justified in holding that the Assessing Officer was not justified in re-opening the Assessment on the basis of the valuation report obtained by him subsequent to the date of completion of assessment? - Can the report called from the DVO before the Assessment order was passed but received after the order was passed, constitute material for "reason to believe" based on which notice u/s. 17, could have been issued for reopening the assessments already completed? - Held, where the report was called for during the pendency of the proceedings but received subsequent to the completion of assessment the law would be that such report/order can be the basis for issuing notice for reopening the assessment under Section 17(1) of the Wealth Tax Act - Appeals disposed of.
Tajuddin M. Somji vs Jivrai Raoji Gandhi and Jivraj Raoji and Another  [BOMBAY HIGH COURT, 07 Apr 2008]
Negotiable Instruments Act, 1881 - s. 138 - Petition to challenge criminal proceedings and order passed rejecting application filed by the accused for recalling process issued under complain u/s. 138 of the Negotiable Instruments Act - Petitioner submitted that it is only after the 15 days' period after receipt of notice as mentioned under section 138 expires that the complaint can be filed by the payee for the dishonour of a cheque - Held, s. 138 of the Negotiable Instruments Act stipulates (i) that the cheque must be presented to the bank within a period of six months from the date on which it is drawn; (ii) that the payee makes a demand of the amount by giving notice in writing to the drawer of the cheque within 30 days of the receipt of information of dishonour of the cheque; & (iii) that the drawer of the cheque fails to make payment within 15 days of the receipt of the notice, it is only when these three conditions are satisfied that the provisions of section 138 would be attracted - Complaint has been filed on 31.1.1991, notice was received on 19.1.1991 by the Petitioner i.e. the drawer of the cheque and, therefore, the complaint itself is not maintainable, Magistrate could not have taken cognisance of the complaint - Petition disposed of.
Valji Mavji Patel vs (1) State of Maharashtra, Through Housing and Special Assistance Department, Mantralaya, Mumbai; (2) Chief Executive Officer, Mumbai; (3) Municipal Corporation of Greater, Mumbai; (4) Gharandaj Builders, Mumbai; (5) Dy. Collector (Enc) and Bsd, Competent Authority, Mumbai; (6) Additional Commissioner (W.S.) and Competent Authority, Bmc, Mumbai; (7) Ward Officer, G/N Ward, Municipal Corporation of Greater Mumbai, Dadar (W), Mumbai; (8) Municipal Commissioner, Mumbai Municipal Corporation, Mumbai; (9) Gana Siddhivinayak Chs Limited, Mumbai  [BOMBAY HIGH COURT, 04 Apr 2008]
Petition filed for issuance of direction to respondents to reconstruct the structures demolished by the respondents and restore possession and to restrain them from further executing the order wherein petition was disposed of on petitioner agreeing to the offer given by developer - Petitioner contended that order was not binding on the petitioner as consent recorded of the parties was not signed by them and therefore, was not in accordance with the provisions of Civil Procedure Code and made serious allegations against his counsel - Held, application is not accompanied by a proper application for condonation of delay; except making a vague plea that the delay in filing the notice of motion be condoned, no reason much less a plausible ground has been stated by the applicant anywhere in the application - No justification of any nature whatsoever for the applicant not to have filed an appropriate application the very next day, after revoking the authority of the counsel who appeared for him; even if some remedy was available to the applicant, he on his own accord has waived the same and has permitted the things to change - It is expected of every litigant to take recourse to the remedy available to him in law as expeditiously as possible and not to wait and watch as to when the other party would act - Petition dismissed.
M.B.Sogaonkar vs Sunita R.Rajput and Others  [BOMBAY HIGH COURT, 04 Apr 2008]
Suit filed for declaration that plaintiff was the owner of suit property, agreement to sale and power of attorney documents were forged and illegal and for injunction restraining defendant from dispossessing plaintiff from suit premises - Defendants had lost interest in suit and court pursued affidavit of evidence and documents on record - Held, all statements made in the plaint as well as in affidavit in lieu of examination in chief have remained uncontroverted; documents produced on record by the plaintiff in support of his suit claim stand admitted; suit deserves to be decreed - Application disposed of.
Manganese Ore (India) Limited, Through Mine Manager, Nagpur vs (1) Commissioner For Workmen