1. Assessment Records – demand by the Third Party – RTI Act – S. 3, 8, 9

The Appellant, as informer, is assisting the Department by bringing instances of tax evasion to its notice, and if he is using information that he has received through RTI Applications for this purpose, it cannot be considered to be misuse of information in any way, nor can it be considered to be an unwarranted invasion of privacy of the assessee. Accordingly PIO was directed to provide inspection of records and the other information sought by the applicant.

Rakesh Kumar Gupta vs. PIO Source: www.itatonline.org

2. Attachment of Property – Right of Provident Fund Commissioner to attach property of the employer due to non-payment of Provident fund dues

The Appellant Bank had advanced loan to the Respondent and property in question was pledged by the Respondent. The Provident Fund Commissioner attached the said property of the Respondent for non-payment of provident fund dues. The said attachment order was challenged by the appellant bank. The Hon’ble Court held that the deeds of pledge executed by the company as security for repayment of loan did not have the effect of transferring the ownership of the property to the appellant bank. The recovery officer did not commit any illegality by attaching the same.

If any amount payable by the employer becomes due but is not paid within the stipulated time, it creates a first charge on the assets of the establishment payable in priority to all other debts within the meaning of Sec. 11(2) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952.

Maharashtra State Co-operative Bank Ltd. vs. The Asst. Provident Fund Commissioner (2009) Vol. 111 (9) Bom. L.R. 4483

3. Dishonour of Cheque – Territorial Jurisdiction of Court – Negotiable Instrument Act, 1881 – S. 138

The payee or the holder of the cheque can prosecute the drawer for dishonour of the cheque at any of the places i.e. where he either resides or carries on business or works for gain.

Crompton Greaves Ltd. vs. Shivam Traders, Shri Ratanlal Ranasaria & Mrs. Manju Ranasaria (2009) Vol. 111 (10) Bom. L.R. 4669

4. Partition of individually owned property – Hindu Succession Act

Property in question was obtained by defendant’s father Shri Kuppuswamy by a will. Therefore the same was individual property and not Mitakshara Coparcenary Property. Therefore the partition would be in equal shares interim of Sec. 8 of Hindu Succession Act.

G. Varalakshmi and Anr. vs. G. Sirinivasa Rao (dead) through LRs. & Anr. (2009) 9 SCC 48.

5. Labour Law – Words & Phrases ‘Power’

Establishment engaged in making and selling coffee, tea, other beverages, sweets etc. Restaurant employing more than 10 employees, using power for coffee machine, cooler and using LPG for preparation of sweets and savouries.

The Court held that the establishment involved in manufacturing process with the aid of LPG, the use of which satisfies the definition of ‘power’, hence ESI Act was applicable. The definition of power is wide enough to include all forms of energy which is mechanically transmitted.

Bombay Anand Bhavan Restaurant vs. Dy. Director, employees State Insurance Corporation and Anr. (2009) 9 SSC 61

6. Criminal – Penal provision of a statute do not apply Retrospectively

False Caste Certificate was obtained prior to enactment of Maharashtra Caste Certificate Act, 2000 penalizing the same.

The Hon’ble Court held that the petitioner was not liable to be prosecuted under the said Act of 2000 as penal provision of a statute do not apply retrospectively and if tried to be applied then, it would go contrary to the spirit of Article 20 of the Constitution of India.

Rajkumar S/o. Shivlingrao Gaulkar vs. State of Maharshtra (2009) Vol. 111 (10) Bom. L.R. 4679

7. Requirement of a valid will – Succession Act 1925 – S. 63

As per provisions of Sec. 63 of the Succession Act, for the due execution of a will:

1. the testator should sign or affix his mark to the will;

2. the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a will;

3. the will should be attested by two or more witnesses, and

4. each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the presence of the testator.

The attestation of the will is not an empty formality. It means signing a document for the purpose of testifying the signatures of the executant. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. The attesting witness should speak not only about the testators signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator.

Yumnam Ongbi Tampha Ibema Devi vs. Yumnam Joykumar Singh & Ors. (2009) 4 SCC 780

8. Overriding effect of Sick Industrial Companies (Special Provisions) Act, 1985 on other laws – Sec. 32

The order of assessment by the Assessing Officer provided for interest and penalty. Pending appeal before the Tribunal, the applicant which was a sick company had moved the BIFR under the provisions of the Sick Inds. Companies (Special provisions) Act 1985, Board sanctioned the Rehabilitation Scheme.

The Hon’ble Court held that as per of the sec. 32(1) of SICA Act it was clear that once the scheme is sanctioned, the provisions of the section shall have effect notwithstanding anything inconsistent therewith contained in any other law. In other words, even if under the Sales Tax Act it was open to charge interest and impose penalty considering scheme as sanctioned, it would not be open to the authorities including the quasi judicial authorities under the Act to order payment of interest and or penalty which is contrary to the sanctioned scheme.

Vadilal Dairy International Ltd. vs. State of Maharashtra (2009) Vol. 111 (8) Bom. L.R. 3585

9. Unfair Trade Practice – Jeweller – Consumer Protection Act – S. 2(1)(f)(r)

The jeweller sold a gold ring and issued receipt showing a purity of 23 carats. In subsequent test of gold ring in laboratory it was found to have purity of 20.5 carats. On complaint filed by the complainant purchaser, it was held that it was a clear case of gold ring being defective and that jeweller resorted to unfair trade practice. Jeweller was directed to pay compensation of Rs.25000/- to complainant purchaser.

B.S. Sharma vs. M/s. Jwellers Madanlal Chaganlal. AIR 2009 (NOC) 1798 (NCC)

10. Award – Enforcement of Foreign Award

The petition was filed under section 47 of the Arbitration and Conciliation Act, 1996 seeking Enforcement of an Award dated 10th October 1999, made in United States of America.

It was held that for enforcement of foreign award the petition should be accompanied by the Award or a duly authenticated copy thereof. As per Rule 803-C of the Bombay High Court O.S. Rules. Reading section 47(1) so also Rule 803 (C)(c) together all that was required was that the party applying for enforcement of Foreign Award shall at the time of the application produce before the Court, the original Award or copy thereof.

Hugo Neu Corporation vs. M/s. Llyods Steel Inds. Ltd. AIR 2009 (NOC) 2483 (Bom.) 2009 (5) AIR Bom. R. 158

11. Deficiency in Service by Builder – Consumer Protection Act. 1986 – S. 2 (1)(g)

Complainant purchased two shops in commercial complex. The builder instead of providing two lifts as promised in advertisement and brochure provided only one lift and that too was not a glass capsule lift as promised. The reason was stated that glass capsule lift was not approved by local administration. The Hon’ble Commission held that there was false representation for luring complainant to make investment. Even the two shops booked by complainant were changed by builder, without his consent and were allotted to some other party. It was held that the deficiency in service was apparent as builder failed to provide facilities as promised in representation made as per advertisement and brochure. Thus the complainant was entitled to compensation with interest.

Madan Builders vs. R.K. Saxena AIR 2009 (NOC) 2551 (NCC)