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1. Condonation of delay -
High Court is empowered to condone delay in filing the appeals u/s. 35G of the
Central Excise Act, 1944
In view of conflicting
decisions of two Division Benches of Hon’ble Bombay High Court on the issue of
whether this Court is empowered to condone the delay in filing the Appeals
under Section 35G of the Central Excise Act, 1944 which are filed beyond the
prescribed period of 180 days, a Full Bench of three judges was constituted.
The Hon’ble Full Bench after
analysing the aspect in depth, came to a conclusion that in such Appeals, the
High Court is empowered to have recourse to Section 5 of the Limitation Act.
The Full Bench observed that the High Court being the Superior Court, the
power to condone the delay in filing the appeal must be read to be existent,
more so by virtue of Section 29(2) of Limitation Act, unless there is a clear
indication of its exclusion by implication.
The Commissioner of Central
Excise vs. M/s. Shree Rubber Plast Co. P. Ltd. Notice of Motion No. 1485 of
2008 in CEXAL No. 88 of 2008 Bombay High Court (Full Bench) dated 19-12-2008
source itatonline.org
2. Condonation of delay of 4
years – Pendency of representation filed before State Government against the
alleged order, sufficient ground to condone delay: Constitution of India Article
226
The Petitioner had filed a
Writ Petition before the High Court against the decision of the State
Government after 4 years from the date of passing of such order. The High
Court dismissed the petition on ground of delay and laches.
The Hon’ble Supreme Court
observed that the petitioner had filed a representation / review of the
decision of the State Government, and was expecting that an order would be
passed on the said representation. Therefore, the delay in moving the Writ
Petition was sufficiently explained by the Petitioner and the Petition ought
not to be dismissed on the ground of delay and laches. The High Court was
directed to decide Writ Petition on merits in accordance with law.
Ashok Kumar vs. State of
Bihar & Ors. AIR 2008 Supreme Court 2723
3. Succession cannot be
reopened to confer better rights on daughters as per Amendment sec. 6 by
Amendment Act 2005 – Hindu Succession Act, 1956
In the instant case, the
death of the father having taken place in 1975, succession itself opened in
the year 1975 in accordance with the existing provisions contained in s. 6. On
death of the father in 1975, the property had already vested with class-I
heirs including the daughters as contemplated in the unamended S. 6 of the
Act.
On careful reading of s. 6(1)
and read with 6(3) of the Hindu Succession (Amendment) Act clearly indicates
that a daughter can be considered as a coparcener only if her father was a
coparcener at the time of coming into force of the amended provision.
Section 6(1) of the Act is
prospective in the sense that a daughter is being treated as coparcener on and
from the commencement of the Hindu Succession (Amendment) Act, 2005. Even
though the intention of the amended provision is to confer better rights on
the daughters, it cannot be stressed to the extent of holding that the
succession which had opened prior to coming into force of the amended Act are
also required to be reopened. Section 6 as amendment cannot be given
retrospective effect.
Smt. Bagirathi & Ors vs. S.
Manivanan & Anr AIR 2008 Madras 250
4. Daughter of coparcener in
Joint Hindu Family governed by Mitakshara Law gets right of co-parcener from the
year 2005 – Hindu Succession Act, 1956, s. 6 (as amended in 2005) is prospective
The (Amendment) Act, 2005 was
enacted to remove the discrimination as contained in s. 6 of the Hindu
Succession Act, 1956 by giving equal rights and liabilities to the daughters
in the Hindu Mitakshara Coparcenary property as the sons have. The said Act
had come into force with effect from 9-9-2005 and the statutory provisions
create new right. The provisions are not expressly made retrospective by the
legislature. Thus, the Act itself is very clear and there is no ambiguity in
its provisions. Thus, looking into the substance of the provisions and on
conjoint reading of sub-sections (1) and (5) of s. 6 of the said Act, it is
clear and one can come to a conclusion that the Act is prospective. It creates
substantive right in favour of the daughter. The daughter got a right of
coparcener from the date when the amended Act had come into force i.e.,
9-9-2005.
The contention that the
daughters, who were born only after 2005, will be treated as coparceners, is
not accepted. If the provision of the Act is read with the intention of the
legislation, the irresistible conclusion is that S. 6 (as amended by Act 39 of
2005) rather gives a right to the daughter as coparcener, from the year 2005,
whenever they may have been born. The daughters are entitled to a share each
equal with the son as a coparcener.
Pravat Chandra Pattnaik & Ors
vs. Sarat Chandra Pattnaik & Anr AIR 2008 Orissa 133
5. Unregistered and
unstamped sale deed cannot be admitted even as secondary evidence
If the document is properly
stamped and if the original is produced, it can be treated as a document
admissible or in the absence of a copy prepared simultaneously with the
original, a registration extract or a certified copy can be treated as
document admissible in evidence. But, in the absence of such material, the
document cannot be admitted even as secondary evidence on account of improper
stamp duty and non registration.
Manda Laxmi Rajam vs.
Kanaparthi Laxmi Bai & Ors AIR 2008 AP 255
6. Recovery: Loan taken by
co-operative society cannot be recovered from Secretary of the Society: Bihar
Co-op. Societies Act sec. 52.
A co-operative is a body
incorporate and an independent juristic entity. That being so, it is distinct
from not only its member but members elected as office bearers. This
distinction as between the co-operative and its constituents is well
established. That being so, the loan having been taken by the co-operative, it
cannot be recovered from petitioner who was secretary of society.
Jay Mangal Singh vs. Bihar
State Co-op. Bank Ltd. AIR 2008 Patna 192
7. Partners & Directors who
were in charge of and responsible for conduct of business liable for commission
of offence u/s. 138 of the Negotiable Instrument Act, 1881
In terms of section 141 of
the Negotiable Instruments Act only those partners of a firm can be proceeded,
who were in charge of the affairs of the company and responsible to it.
Section 141 of the Negotiable Instruments Act raises a legal fiction in terms
whereof the Directors of a company which would include the partners of a firm
would be deemed to have committed an offence alongwith the company if they are
in charge of the affairs of the company and responsible to it.
Green Earth Asphalt & Power
P. Ltd. vs. State of Maharashtra through PSO and Ors (2008) 8 SCC 278
8. Powers of Revenue
authority – Revenue authority cannot decide question relating to genuineness of
document – Stamp Act, 1899, Sec. 38(2)
When a document is sent for
the purpose of impounding, levying the stamp duty and penalty to Revenue
Authority or District Collector, he is expected to decide the same in
accordance with provisions of Stamp Act and cannot travel beyond thereto by
entering into controversy whether document sent by the Civil Court is genuine
or not. It is for the competent civil Court to decide the question relation to
genuineness or otherwise of document concerned. The authority or jurisdiction
of Revenue Authority-District Collector would be limited for the purpose of
deciding the question of impounding i.e. levying the stamp duty and penalty.
Mohd. Qamruddin & Ors. vs.
Masula Narsimhulu. AIR 2008 Andhra Pradesh 249.
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