Court : Mumbai
Decided on : Jul-14-1977
Reported in : AIR1978Bom119; (1977)79BOMLR499
..... capacity as owners or as persons having proprietary interest in the produce and not as traders and as such the effect of the acquisition on their trade is secondary and mediate and not direct or immediate. in our view, the position arising under the acquisition act would be comparable to a couple of instances which would be in pari materia. suppose ..... rigorous test has been laid down by our supreme court, namely the effect or impact of the restriction on free trade, must be direct or immediate and not indirect or mediate and in the context of such test the object or purpose for which the acquisition or expropriation is authorised by the enactment would be relevant and material. 52. having regard ..... free flow or movement of trade and that if the impact or effect of the impugned restrictions on trade and commerce is direct and not remote and immediate and not mediate, such restrictions would offend the freedom guaranteed by article 301.45. in the automobile case : 1scr491 the constitutional validity of rajasthan motor vehicles taxation act, 1951 and the provisions ..... that would fall within the purview of article 301. the argument that all taxes should be governed by article 301 whether or not their impact on trade is immediate or mediate, direct or remote, adopts, in our opinion, an extreme approach which cannot be upheld. if the said argument is accepted it would mean, for instance, that even a legislative enactment .....Tag this Judgment!
Court : Mumbai
Decided on : Dec-02-1977
Reported in : (1978)80BOMLR280
naik, j.1. this is an appeal against the order of the learned judge of the city civil court, bombay, dated april 14, 1977 making the defendant-appellant's notice of motion dated march 31, 1977 absolute and setting aside the ex parte decree passed against the defendant on march 2, 1977 on condition that the defendant deposits the decretal amount in court within a week and that on defendant's failure to deposit the decretal amount in court the said notice of motion to stand dismissed without further express orders of court.2. the facts giving rise to this appeal which are not in dispute are briefly these: summary suit no. 634 of 1972 was filed by the plaintiff respondent on the strength of a pro-note dated january 16, 1969 for rs. 3,400 alleged to have been executed by the defendant-appellant. it appears that at the summons stage there was an ex parte decree on june 4, 1972. that ex pane decree was set aside and unconditional leave to defend was in fact granted to the defendant. the defendant filed his, written-statement. the suit was transferred to the list of long causes on march 24, 1975. on march 2, 1977 the suit was taken up by mr. thakkar, the additional principal judge of the city civil court who was taking commercial causes and it was decreed ex pane. thereafter one praveen patel, the clerk of defendant's advocate mr. narayanan, who was entrusted to watch the daily boards of long causes, learnt on enquiries that the suit was placed on board before mr. thakkar who was .....Tag this Judgment!
Court : Mumbai
Decided on : Aug-25-1977
Reported in : (1978)80BOMLR343; 1978MhLJ565
chandurkar, j.1. certain disputes arising out of partnership business carried on by the petitioner along with respondents nos. 3, 4, 5 and 6 were referred for decision to five arbitrators viz. respondents nos. 1, 2 and 7 to 9. the arbitrators are said to have made an award on june 6, 1974 and two of the arbitrators viz. respondents nos. 1 and 2 filed on july 4, 1974 an application for filing of the award. the arbitrators themselves have prayed in that application that judgment and decree be passed in terms of the award. the other three arbitrators were shown as opponents in this application under section 14(2) of the arbitration act. notices of this application were issued to the petitioner and the other partners. according to the petitioner, the notice was served on him on september 11, 1974. it appears that on october 9, 1974 the petitioner filed an application for taking the case on board along with a written-statement. on october 9, 1974 the suit was not fixed for hearing, it having been fixed earlier for october 1, 1974 and then adjourned to october 23, 1974. the contents of the application and the written-statement filed by the petitioner are slightly relevant in the context of the question which arises in this petition. in his application dated october 9, 1974 (exh. 2) which is made by the petitioner for taking the suit on board on that day the petitioner has referred to the fact that the notice of the application was served on him on september 11, 1974 and 'the .....Tag this Judgment!
Court : Mumbai
Decided on : Apr-26-1977
Reported in : (1979)81BOMLR110; 1978MhLJ561
chandurkar, j.1. the only question raised in this appeal is whether the city civil court at bombay has jurisdiction to execute a money decree transferred to it for execution by another court when the total decretal amount to be recovered in execution exceeds the amount of rs. 25,000 which is the pecuniary jurisdiction of the city civil court.2. in civil suit no. 7b of 1952 decided by the civil judge no. i, yeotmal, the plaintiff decree-holder obtained a decree for payment of rs. 17,118-90 on august 22, 1956. the amount was payable with interest at 12 per cent, per annum from november 4, 1952 till realisation. the figure of the amount due from the defendants ultimately swelled to rs. 35, 763.31 p. and under section 39 of the code of civil procedure the decree was transferred to the city civil court at bombay by the yeotmal court.3. an objection was taken in executing court to the maintainability of the execution on the ground that since the amount due and payable to the decree-holder exceeds the sum of rs. 25,000 which is the limit of pecuniary jurisdiction of the city civil court, the court will have no jurisdiction to entertain the execution proceedings. the city civil court took the view that having regard to the provisions of section 3 of the bombay city civil court act, 1948 (hereinafter referred to as 'the act') when dealing with the execution proceedings, the city civil court was dealing with the proceedings of civil nature and since the jurisdiction of the city civil .....Tag this Judgment!
Court : Mumbai
Decided on : Nov-01-1977
Reported in : AIR1978Bom356
order1. this election petition arises out of the election in respect of the seat for the lok sabha from bombay north-west constituency no. 18 in the election held in march 1977. there were six contesting candidates including the petitioner and respondents nos. 1 and 2 in respect of this seat. as per the results declared by the returning officer, respondent no. 1, ram jethmalani secured 2,46,446 votes, respondent no. 2, h.r. gokhale secured 1,52,947 votes and the petitioner secured 1,721 votes. the other candidates secured a smaller number of votes than these three. the returning officer, therefore, declared respondent no. 1 to have been duly elected. in this petition, the petitioner has prayed, inter alia, that the election of respondent no. 1 be declared to be null and void, that respondent no. 2 be declared as disqualified and the petitioner be declared to have been duly elected and returned to the parliament from the bombay north-west constituency no. 8 (hereinafter referred to as 'the said constituency').2. as the petition is being disposed of on a preliminary issue, it will be sufficient to set out only such averments in the petition and the written statements and such facts as are relevant for determination of the preliminary issue. in the petition it has been, inter alia, alleged by the petitioner that respondents nos. 1 and 2 have filed statements of account of election expenses incurred or authorised by them or by their election agents in the sums of rs. 14,169.08 .....Tag this Judgment!
Court : Mumbai
Decided on : Jan-11-1977
Reported in : AIR1978Bom177; 1977MhLJ61
tulzapurkar, ag. c. j.1. by this writ petition filed under arts. 228 and 227 of the constitution the petitioner (babasaheb dnyanu patil of bhuye, taluka karvir, district kolhapur) is seeking to challenge the legality of the order passed by respondent no, 4 (commissioner, poona division) on 11th august 1976, whereby the learned commissioner rejected his request that he be declared to have been elected to the board of directors of respondent no. 2bank (kolhapur district central cooperative bank ltd., kolhapur),2. a few facts giving rise to this petition may be stated. respondent no. 2 bank 13 a specified society within the meaning of section 73-g of the maharashtra co-operative societies act, 1960, the elections to the board of directors of which were required to be held through the collector. it appears that the board of directors of respondent no. 2 bank consisted of 18 directors 17 elected and one nominee of the financing bank. the triennial elections to the board of directors for the three years 1973-74, 1974-75 and 1975-76 were held in the month of november 1973. the last date for filing the nomination papers was 23rd oct. 1973 and after scrutiny of the nominations was over the last date for withdrawal of nomination papers was fixed as 1st nov. 1973. in all seven candidates had filed their nomination papers, but with the withdrawal of five nomination papers, which was done before 1st nov. 1973, only two candidates remained in the field, viz. the petitioner and respondent .....Tag this Judgment!
Court : Mumbai
Decided on : Dec-05-1977
Reported in : (1979)81BOMLR265; 1978MhLJ773
vaidya, j.1. the above first appeal is directed against the judgment and decree, dated november 7, 1969, passed by the civil judge, senior division, bhir, decreeing the suit, filed by respondent no. 1, against the appellant, who was defendant no. 1; and his father, defendant no. 2, for declaring that the sale-deed, dated march 8, 1965, executed by defendant no. 2, in favour of defendant no. 1, was ineffective and not binding on the plaintiff, to the extent of his interest in the property; and that the plaintiff should be put in possession of the suit-land, to the extent of half, bearing s- no. 104, measuring 19 acres 16 gunthas, assessed at rs. 39.64 p., situated in village pimpalner, taluka bhir, district bhir, partition in respect of which had to be made by the collector, or his gazetted subordinate, under section 54 of the civil procedure code; and directing further an inquiry under order xx, rule 12(i)(c) of the civil procedure code, for mesne profits, from the date of the suit, till delivery of possession; and to pay costs.2. the sale was set aside, on the ground that the consideration of rs. 15,000, paid by defendant no. 1 to defendant no. 2, was tainted by imorality, inasmuch as defendant no. 2 had sold the suit-land, for the purpose of paying the amount embezzled by him in respect of the seva sahakari society, pimpalner, while he was the chairman of that society. the learned judge, in arriving at the conclusion, followed the decision in bai mani v. usajali : .....Tag this Judgment!
Court : Mumbai
Decided on : Dec-03-1977
Reported in : 41STC274(Bom)
madon, j.1. these are three references made by the sales tax tribunal at the instance of the commissioner of sales tax. the respondents in all these references are the same and two identical questions have been referred to us in each of these references. the material facts necessary for deciding these references are also the same, the only difference being that sales tax reference no. 100 of 1976 is under the central sales tax act, 1956, in respect of the assessment period 1st april, 1958, to 31st march, 1959; sales tax reference no. 101 of 1976 is under the bombay sales tax act, 1953, in respect of the assessment period 1st april, 1959, to 31st december, 1959; and sales tax reference no. 102 of 1976 is under the central sales tax act, 1956, in respect of the assessment period 1st april, 1959, to 31st december, 1959. sales tax reference no. 101 of 1976 is made under section 34(1) of the bombay sales tax act, 1953, while the other two references are made under the said section 34(1) read with section 9(2) of the central sales tax act, 1956. as this, however, makes no difference to the decision of these reference, it will be convenient to dispose of these by a common judgment. 2. the respondents were registered as dealers both under the bombay sales tax act, 1953, and the central sales tax act, 1956. they carry on business as manufactures, inter alia, of rexine cloth and bookbinding cloth. in respect of their assessments both under the bombay act and the central act in respect .....Tag this Judgment!
Court : Mumbai
Decided on : Mar-17-1977
Reported in : (1977)6CTR(Bom)368
madon, j. 1. this is a group of eight references under s. 34(1) of the bombay sales tax act, 1953 (hereinafter referred to as 'the said act'), which can conveniently be disposed of by a common judgment. 2. the assessees, who are the respondents before us in all these eight references, are a partnership firm. the assessee-firm was registered as a dealer under the said act. the place of business of the respondents was situate within the jurisdiction of the sales tax officer, licence circle, iii division, bombay. at the relevant time, the sales tax, officer, licence circle, iii division, bombay, was one v. s. nadkarni. accordingly, the respondents were filing their quarterly returns before the said nadkarni. on october 28, 1955 the place of business of the respondents was raided by one v. s. deshpande, who was the sales tax officer (iii), enforcement branch, bombay, and certain books of account were seized. thereafter in respect of the assessment year 1953-54, that is, april 1, 1953 to march 31, 1954, two assessment orders were made by the said nadkarni, both dated october 31, 1955, one in respect of the general tax payable by the respondents and the other in respect of the special tax payable by respondents. on december 16, 1955 a notice was issued to the respondents by the said deshpande in which it was stated that it was revealed from the inspection of the respondents' books of account that they had not kept a true account of the goods bought and sold by them and had thus .....Tag this Judgment!
Court : Mumbai
Decided on : Apr-04-1977
Reported in : AIR1978Bom106; (1979)81BOMLR49
order1 to 23 ..... 24. shri m.h. shah the learnedcounsel for the defendants,contends that the agreements betweenthe plaintiffs and the defendants are theagreements which come within the purview of the 1961 act and that the claimsof the plaintiffs in the suit are matterswhich have been agreed to be referred toarbitration by virtue of and under thearbitration clauses contained in the saidagreements. consequently, the learnedcounsel claims that under section 3 of the1961 act the suit is liable to be stayed.the learned counsel emphasises the peremptory character of the legislative injunction in section 3 and submits that thecourt has no option but to grant stay ofthe proceedings. shri. a.k. sen, thelearned counsel for the plaintiffs, arguesthat the provisions of section 3 of the 1961act are not attracted in the present case.the conflict will have to be resolved withreference to the relevant provisions oflaw seen in the context of the facts ofthe present case.25. the 1961 act gives effect to the convention on recognition and enforcement of arbitral awards adopted at new york on 10th june 1958. the said convention was verified by india and deposited with the secretary general of the united nations on 13th july 1960. the 1961 act is intended inter alia to provide for speedy settlement of disputes through arbitration by removing the constraints to which such settlements were subjected to by the provisions of the indian law. section 2 of the 1961 act by its material provision defines .....Tag this Judgment!