Court : Mumbai
Decided on : Oct-19-2013
..... the domain of the arbitral tribunal. thirdly, it was submitted that the award of damages could not be challenged under section 34 of the said act as held by the supreme court in mcdermott vs. burn standard (2006 (11) scc 181). the learned senior counsel invited our attention to paras 102, 106, 110 and ..... in respect whereof there was no dispute or difference; or (vi) whether the award is vitiated by internal contradictions. ? thirdly, the apex court in delhi development authority vs. r.s. sharma and co. (2008) 13 scc 80), has observed in paragraph 21 as under:- ??21. from the above decisions, the following principles emerge: (a) an ..... ongc vs. saw pipes (2003) 5 scc 705)(paras 1, 13, 15, 22, 31, 72, 74) (2) delhi development authority vs. r.s. sharma and co. (2008) 13 scc 80)(paras 20, 21) (3) steel authority of india limited vs. gupta brother steel tubes ltd. (2009) 10 scc 63)(paras 17, 18) (4) j.g ..... senior counsel for the parties. this appeal by special leave was filed against order dated 22nd of october, 2008 of the high court of judicature at bombay in appeal no.672 of 2005 whereby the high court had allowed the appeal of the respondent herein and set aside the order dated 3rd august, 2005 passed ..... hence relying upon the case of delhi development authority vs. m/s. r.s. sharma and co. new delhi 2008 11 scale 663 @ 672in paragraph 12 he contended that under section 34 of the act, the award was liable to be set aside. he contended that such an award was contrary to the substantive .....Tag this Judgment!
Court : Mumbai
Decided on : Apr-12-2013
..... had committed breach of the contract is not liable to pay compensation and it would be against the specific provisions of section 73 and 74 of the indian contract act. the supreme court held that in the said clause, it was specifically mentioned that it was agreed genuine pre estimate of the damages duly agreed by the parties. it was also mentioned ..... determined, the party claiming compensation must prove the loss suffered by him. a reading of these two judgments lead to an inevitable conclusion that according to the supreme court section 74 of the contract act has obliterated the distinction between the stipulations providing liquidated damages and stipulations in the nature of penalty, so far as payment of compensation is concerned. reasonable compensation ..... meeting proposed to be held on 11th january, 1985. 5. the dispute arose between the parties. dmk group filed arbitration suit no. 1196 of 1985 in this court under section 20 of the arbitration act, 1940 for seeking appointment of the arbitrator in terms of the arbitration agreement contained in clause 27 of the said mou. by an order dated 8th july ..... that adjudication of a dispute/entitlement is different than assessing the quantum of liquidated damages. both are important. kailash rani dang v. rakesh bala aneja and anr. manu/sc/8396/2008 : (2009) 1 scc 732). even saw pipes (supra) has recognized the importance of leading evidence to prove damages or reasonable compensation 39. in view of above, the findings given by .....Tag this Judgment!
Court : Mumbai
Decided on : Jan-21-2013
..... the witness (xii) the parties, if they want to examine witness, may file a list of witnesses. if necessary, seek order from the court under section 27 of the arbitration act, to call necessary witness with or without documents. the evidence in chief - through affidavits ?? inspection - cross examination ?? re-examination, if necessary ..... other doctrines; ??mitigation of loss ? , ??burden of proof ? , ??onus of proof ? and ??shift of burden ? just cannot be overlooked by the court or the arbitrator, while determining the reasonable compensation. ? 20 it is relevant to note that the learned arbitrators though objected and admittedly the respondent-claimant did not ..... from third person. it is remarked that ??the subject loss also does not fall in any of the exclusions of the policy. ? on 3 june 2008, respondent no.1 therefore, filed claim of rs.1,41,04,600/and odd, together with interest @ 21% p.a. on principal amount of ..... surveyor ultimately submitted a final survey report rejecting the claim of respondent no.1 of rs.95,81,978/. 6. on 22 april 2008, respondent no.1 invoked the arbitration clause. respondent nos. 2 to 4 were appointed as arbitrators. respondent no.1 filed statement of claim before ..... the arbitrators. on 15 july 2008, the petitioner has filed its written statement. on 25 july 2008, respondent no.1 filed a rejoinder to written statement. respondent no.1 reserved the right to adduce the evidence .....Tag this Judgment!
Court : Mumbai Nagpur
Decided on : Sep-17-2013
..... . the division bench found that legislation allowed benefit only on proportionate part of turn over. in earlier challenge, vide the judgment dated 13.10.2008 in case of pee vee textiles, the earlier division bench had found that in absence of rules prescribing the ratio, the deputy commissioner was not ..... while appreciating such schemes. 21. in pepsicoindia holdings (p) ltd. v. state of kerala, (2009) 13 scc 55, at page 77 , hon. apex court has observed : ??53. an exemption notification and a notification withdrawing the benefit granted would, however, stand on different footings. for the said purpose, the industrial ..... 8.6.1995 and it reads:-- ??-section 41c- cancellation of certificate of entitlement (1) notwithstanding anything contained in this act, or in any judgment, decree or order of any court or tribunal to the contrary, the certificate of entitlement issued in favour of an eligible unit by the commissioner in respect of ..... of the provision. ? 22. we find that the division bench of this court considers the original 1979 scheme as also amendment made to it vide gr dated 5.7.1982 in judgment reported at 2008 (12) ljsoft 203-2008(s) bom.c.r. 92- vinods/o ratilal patira vs. commissioner of sales ..... tax and ors. however this judgment considers the position of law prevailing prior to addition of s.41c to the state act. petitioners in this reported judgment had .....Tag this Judgment!
Court : Mumbai
Decided on : May-06-2013
..... is obliged to examine the nature of allegations made in the complaint and then summon the accused. he should not, as emphasized by the honourable supreme court, act as a silent spectator. however, in the facts of this case, to my mind, the learned magistrate has scrutinized the complaint allegations carefully and by ..... the contravention is established then the penalty is to follow. ? 32 in the case of union of india v/s dharmendra textile processors reported in (2008) 13 scc 369, the earlier judgments were referred to and followed in arriving at the conclusion that in interpreting the penal provisions and statutes, considerations ..... circumstances the municipal corporation performed its public duty and filed a criminal complaint. it is not as if the complaint has been filed in criminal court hastily or without application of mind. the officers in the fire department are senior enough and equally matured to understand and appreciate difficulties faced by ..... ) 1998 cr.l.j. 1 (supreme court), m/s pepsi foods ltd. v/s special judicial magistrate. (8) (2010) 3 scc 330, national small ..... n.mehta). (4) 2002 cri.l.j. 4155 (madras high court) s.n.bangurv/s m/s klen and marshalls mrfs. and exporters pvt.ltd.. (5) air 1983 sc 67 (municipal corporation of delhi v/s ram kishan rohtagi and others). (6) (2008) 5 scc 668 (maksudsaiyed v/s state of gujarat). (7 .....Tag this Judgment!
Court : Mumbai
Decided on : May-10-2013
..... senior counsel submits that the impugned award shows patent contradiction and inconsistency and shows the patent illegalities on the face of the award which warrants interference of this court under section 34 of the act. mr. chagla, the learned senior counsel distinguishes various judgments cited by mr.sundaram, the learned counsel appearing for the respondents. 51. section 39 and 56 ..... agarwal and others reported in (2006) 7 scc 470. para 39 of the said judgment reads thus:- ??39. furthermore, section 20 of the specific relief act confers a discretionary jurisdiction upon the courts. undoubtedly such a jurisdiction cannot be refused to be exercised on whims and caprice; but when with passage of time, contract becomes frustrated or in some cases ..... mapa. 30. by an order dated 23rd december 2005 in arbitration petition (434/05) filed by the petitioners under section 9 of the arbitration and conciliation act against the respondents herein, this court passed an ad interim order directing the parties to maintain status-quo in relation to the subject matter of arbitration. by an order dated 24th january 2006, ..... dated 21st december 2007, the petitioners returned the cheques to the respondents' advocate. 39. both the parties came to know subsequently that cbi enquiry was over on 27th february 2008. 40. before the learned arbitrator, both the parties led documentary as well as oral evidence. the arbitral tribunal framed 28 issues. the respondents examined five witnesses. the petitioners .....Tag this Judgment!
Court : Mumbai
Decided on : Oct-29-2013
..... unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no court shall stay the proceedings under this act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other ..... agency of a larger number of officials and authorities. the constitution, therefore, requires and so did the rules of business framed by the rajpramukh of pepsu provide, that the action must be taken by the authority concerned in the name of the rajpramukh. it is not till this formality is observed ..... specific statutory exception. to hold that such an exception exists that a private complaint for offences of corruption committed by public servant is not maintainable, the court would require an unambiguous statutory provision and a tangled web of argument for drawing a far fetched implication, cannot be a substitute for an express statutory ..... sanction for criminal prosecution. mr. setalwad submits that the matters of sufficiency and adequacy of evidence have to be dealt with by the competent criminal courts. at the stage of grant of sanction, the sanctioning authority is not empowered in law to consider as to whether the material collected or gathered ..... scc 527. 5) state of m.p. v/s jiyalal, reported in air 2010 sc 1451. 6) state of karnataka v/s ameer jan, reported in air 2008 sc 108. 7) state of bihar v/s p.p. sharma, ias, reported in 1992 supp. (1) scc 222. 8) r.s. nayak v/s .....Tag this Judgment!
Court : Mumbai
Decided on : Apr-09-2013
..... the company or its directors not to dispose of any assets could be reason enough to urge that the criminal case alleging offences under section 138 of ni act cannot be instituted. beyond that the supreme court has not held that a complaint cannot be continued. it only clarified that there could be a reasonable and possible conclusion, if a cheque was drawn ..... seeking discharge from criminal case was placed before me. what has been urged in that application is that the complainant could not have filed the present complaint on 28th february 2008 and no process could have been issued as accused no.1 company was under bifr, much prior to the said order and also had protection under section 22 and 22a ..... cheques were returned unpaid. therefore and when the endorsement of the bank in the cheque return memo was ??funds insufficient ? that the statutory demand notice was issued on 21st january 2008. this demand notice was issued and duly served. there has been no compliance with the requisitions contained therein namely there has been no payment made. it is in such circumstances ..... that a complaint was filed on 28th february 2008 alleging offences punishable under section 138 read with 141 of ni act. 7] the application for discharge was filed and in which the contention raised is that the accused no.1 company had made a reference to .....Tag this Judgment!
Court : Mumbai
Decided on : Nov-27-2013
..... his jurisdiction. drawing from the case of associated engineering co. vs. government of andhra pradesh (1991) 4 scc 93 : (air 1992 sc 232) the court accepted the contention that the arbitrator who acted in disregard of the contract acted without jurisdiction. this tantamounted to misconduct on his part and vitiated the award. 42. there was no escalation clause in the contract in the ..... the test of the grant in arbitration. 40. it is held in the case of rajasthan state mines and minerals ltd. vs. eastern engineering enterprises and anr., air 1999 supreme court 3627, which dealt with the challenge to an award in a similar contract for excavation as in this case, that the contract had expressed prohibition and stipulation for non payment ..... arisen, an arbitration has been invoked and undertaken. the award is challenged essentially upon the ground that it travels beyond the contract between the parties. 4. in that regard the court would be bound and completely governed by the law laid down in the case of rajasthan state mines and minerals ltd. vs. eastern engineering enterprises and anr., air 1999 supreme ..... case of rajasthan (supra). drawing from the case of continental construction co. vs. state of madhya pradesh, air 1988 sc 1166, the supreme court repelled the contention that .....Tag this Judgment!
Court : Mumbai
Decided on : Apr-02-2013
..... house of the appellant. resultantly, the said evidence considered alongwith the opinion given by doctor who had performed postmortem definitely leads to the conclusion as arrived by the trial court of the prosecution by the said evidence having established the circumstance under consideration of deceased having met with homicidal death. 11. now before taking up the further circumstances established ..... the appellant. in consonance with said conclusion arrived, the trial court convicted and sentenced the appellant as narrated hereinabove. 6. by drawing our attention to various facets from the evidence of each of the witnesses both the sides made elaborate ..... upon the documentary evidence, which was prepared during the course of investigation. 5. the defence of the appellant was that of total denial and false implication. the trial court after appreciation of the prosecution evidence came to the conclusion that the prosecution has established various circumstances forming a formidable chain leading to sole inference of the guilt of ..... embellishment or improvement for not inspiring confidence. such a being test given by the apex court in the decision of state v/s. ramesh (supra), we are unable to find any fault with the trial court in accepting the evidence of pw5 inspiring confidence and acting upon it. we are of such a opinion because we do not find any unnatural .....Tag this Judgment!