(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.(b) The answer to question posed in sub-para (b) has to be in negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.(c) The answer to question (c ) has to be in affirmative. The question notes that the Managing Director or Joint Managing Director would be admittedly in charge of the company and responsible to the company for conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as Managing Director or Joint Managing Director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under Sub-section (2) of Section 141.
Monday, December 19, 2016
Grounds for making Directors of Company Liable u/s 141 of NI Act
Act may be declared unconstitutional with passage of time
Saturday, December 17, 2016
Issues regarding BRTS Corridor in Bhopal & Indore
Ravindra Ramchandra Waghmare …. Appellant Vs. Indore Municipal Corporation & Ors. ….Respondents
http://supremecourtofindia.nic.in/FileServer/2016-11-29_1480419496.pdf
Courts cannot legislate and act beyond the lis
CIVIL APPEAL NO.11381OF 2016 (Arising out of S.L.P.(C) No.26961 of 2016)
Supreme Court judgement. (http://supremecourtofindia.nic.in/FileServer/2016-12-08_1481196550.pdf)
"A court cannot take steps for framing a policy. As is evincible, the directions issued by the High Court and the queries made by it related to various spheres which, we are constrained to think, the High Court should not have gone into. It had a very limited lis before it. Be it stated, the directions may definitely show some anxiety on the part of the learned Judges, but it is to be remembered that directions are not issued solely out of concern. They have to be founded on certain legally justifiable principles that have roots in the laws of the country. "
"A Judge should not perceive a situation in a generalised manner. He ought not to wear a pair of spectacles so that he can see what he intends to see. There has to be a set of facts to express an opinion and that too, within the parameters of law.
"Having noted the aforesaid submissions, it is necessary to state that it is expected that the High Courts while dealing with the lis are expected to focus on the process of adjudication and decide the matter. The concept, what is thought of or experienced cannot be ingrained or engrafted into an order solely because such a thought has struck the adjudicator. It must flow from the factual base and based on law. To elaborate, there cannot be general comments on the investigation or for that matter, issuance of host of directions for constituting separate specialized cadre managed by officials or to require an affidavit to befiled whether sanctioned strength of police is adequate or not to maintain law and order or involvement of judicial officers or directions in the like manner. To say the least, some of the directions issued are not permissible and all of them are totally unrelated to the case before the High Court. We are constrained to say that the High Court should have been well advised to restrict the adjudicatory process that pertained to the controversy that was before it."
Tuesday, December 13, 2016
Courts cannot grant relief not prayed for
Bharat Amratlal Kothari vs Dosukhan Samadkhan Sindhi, AIR 2010 SC 475,
Courts cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant relief not even prayed for by the party.
Principles of Anticipatory Bail
Case: Bhadresh Bipinbhai Seth Vs State of Gujarat & Anr.
Supreme Court
Criminal Appeal Nos. 1134-1135 of 2015.
Also discussed: Gurbaksh Singh Sibbia vs State of Punjab (1980) 2 SCC 565
Compromise should be reduced to writing
Court Supreme Court
Citation: (2011)8SCC679
Also discussed the scope of "dismissed as withdrawn"
Review of Order before High Court after dismissal of SLP
Court Supreme Court
Citation: (2011)8SCC679
Factual Scenario: Order of the High Court is challenged before the Supreme Court in an SLP. SLP is dismissed by the SC. Thereafter, party can file a review of the impugned Order before the High Court. Order 41 Rule 1 provides that one of the condition for review is that an appeal is provided by the Act but no appeal has been preferred. Dismissal of SLP comes under no appeal has been preferred, as SLP is the front gate of the Appeal and until and unless leave is granted for appeal, dismissal of SLP will not be construed for res-judicata.
Friday, December 9, 2016
Summary procedure
Order 37 of the Code of Civil Procedure lays down the nature of disputes in which summary suit can be filed. It also provides for the summary procedure.
In summary procedure firstly, plaint is filed then notice is issued. After the defendant enters appearance the plaintiff has to file application for summons for judgment. After which the defendant will file leave to defend. If the plaintiff proves that defendant does not have sufficient means than judgment will be granted then and there by rejecting leave to defend. But if the defendant furnishes proof in the leave to defend and if it/he agrees to deposit the claimed amount before court then leave to defend will be granted.
Wednesday, December 7, 2016
Listing of Cases before ITAT, Delhi
If the demand of tax is less than 50 Lakh Rupees then the matter is listed before a bench of only judicial member. The bench is called SME. SME bench assembles immediately after regular bench finishes up its matter for the day.
If the demand of tax is more than 50 lakh Rupees then the matter is listed before a bench of two members.
Listing of an appeal before an ITAT after filing it with the registry may take more than a year. For example: an appeal filed in June, 2015 was not listed until December 2016 as the bench were hearing appeals of July 2014. In such case an early hearing application can be filed which gets listed before the Head of Department of ITAT and a relief for stay on demand can be prayed, failing which delay in listing may result in increase in demand of tax including the interest and penalty.
Additional evidence in appellate jurisdiction
An application can be filed under order 41 Rule 27 to lead additional evidence in an appeal by stating the reasons for inability to lead the evidence before the lower court.
Appeal before DRAT
An appeal is filed before DRAT against the securitisation proceedings under section 18 of the SARFAESI Act, 2002.
An appeal before DRAT can be filed only after the deposit of 50% of the total amount due. However, DRAT if feels it necessary only after recording reasons can reduce it to 25% but not beyond that.
Original application before DRT
When an application is filed under section 19 of the RDDBFI Act, 1993 following court fee is required to be paid:
¶when amount of debt due is 10 lacs - Rs 12000
¶when amount of debt due is more than 10 lacs- Rs 12000 plus Rs 1000 each on every one lakh rupees subject to a maximum of Rs. 1,50,000/-
WC Appeal
Secrion 30 of the Employees Compensation Act, 1923
An appeal can be filed against the order of Labour Commissioner only if a substantial question of law is involved.
An appeal under section 30 can be filed only after getting the certificate from the commissioner showing the deposit of the entire awarded amount with the commissioner.
Second appeal
Punjab state power corporation vs punjab state electricity regulatory commission (SC), CA 4510 of 2006
In a second appeal court cannot go into fact finding unless there is a prima facie error committed by the courts below.
Section 100 CPC
Per incuriam
Per incuriam- a judgment which is bad in law and cannot be considered as a precedent as it has not referred the existing principles while deciding any issue.
Union of India vs S.K. Kapoor (SC)
CA no. 5341 of 2006
-Prior judgment of co-ordinate bench is binding upon the bench while deciding that particular issue.
-if a judgment of a co-ordinate bench is not referred by the subsequent bench while deciding a particular issue of law then that judgment will become per incuriam.
Tuesday, December 6, 2016
Reply filing in NGT
- Reply to be filed with a CD
- Applicant/appellant + All remaining Respondents to be served
- Proof of service to be attached (Format available at filing counter)
- If matter is listed day after then the last filing will be allowed till tomorrow 12 noon
Conditions of granting of Leave in SLP
Supreme Court
CA No. 4358 of 1990
1991 Supp (1) SCC 191
In what conditions leave can be granted.
Serving of Notice in Winding up Petition
Allahabad High Court,
Company Petition No. 42 of 1995
Date: 24.05.1996
Notice to be served only at the registered address of the company. If notice not served then the pleadings of the petition should show, with sufficient means, that the company was unable to pay its debt.
Winding up petition Vs Arbitration
Case: Ritika Pvt Ltd Vs Omaxe Construction Ltd. DHC. Company Petition No. 441/2009
Winding up is a discretionary remedy.
Sunday, December 4, 2016
Section 100A of the Civil Procedure Code
Section 100A of the CPC prohibits a third appeal to a civil suit when the parties approach the High Court. The recourse to a third appeal is accessed to through Letters Patent Appeal of a High Court which provides for appeal to a division bench against the Order/decree of a single judge.
Initially the section was applicable to writ proceedings also where an appeal against the Order of a single judge to a division bench was prohibited, however by a later amendment the section was amended to exclude writ proceedings.
More to follow...
Welcome Post!
I have started this blog to make a compilation of my daily readings of various subjects of law including judgments, important articles etc. The idea is to make a depository of everyday learning. Doing this will make a record of what I have been reading everyday and I can always make a revision of the same whenever and where ever I want. I have chosen this mode of collecting records as it becomes easier to upload posts and have access to it from anywhere and also to make available the contents to anyone.
Looking forward to a great journey ahead with a promise to self of uploading atleast one post a day.