Legal News & Views

Citation : M.S. Viswanathan, Liquidator of Gemini Communication Limited vs Pixtronic Global Technologies Pvt. Ltd,  IA/1215/CHE/2021 in CP/699/IB/2017 Date of Judgment/Order : 15/2/22 Court/Tribunal : National Company Law Tribunal, Division Bench I, Chennai Corum : R. Sucharitha, Member (Judicial), Sameer Kakar, Member (Technical) Background Application was filed by the Liquidator under Regulation 32(e) of the IBBI (Liquidation Process) Regulations, 2016 seeking approval from the Tribunal for sale of the Corporate Debtor as a going concern. Order Allowing the application, the NCLT went into an elaborate but useful explanation of the entire law behind the term 'Going Concern'. NCLT observed that  the term 'going concern' means all such assets and the liabilities, which constitute an integral business or the Corporate Debtor, that must be transferred together, and the consideration must be for the business or the Corporate Debtor. The buyer of the assets and liabilitie...

Citation : Smt. Sashi Jain @ Shashi Jain v. Sandip Sarkar, F.A. 55 of 2017 Date of Judgment/Order : 02-03-2022 Court/Tribunal : High Court Of Calcutta - Appellate Side Corum: Soumen Sen & Ajoy Kumar Mukherjee J. Background The plaintiff/respondent being the landlord had filed a suit for eviction of the defendant/appellant before the Small Causes Court at Calcutta. During the pendency of the suit, the appellant agreed buy the said floor for a consideration of Rs.13 lakhs. The parties thereafter executed an agreement for sale wherein it was agreed th Rs.13 lakhs shall be paid in instalments within November, 2008 and a sum of Rs.5 lakhs shall be paid within March 2007 as a condition precedent. Till the entire consideration money is paid and the sale agreement is registered, the tenant had agreed to pay ‘occupancy charges’ at the rate of Rs. 2,000/- per month on and from January 2007 until payment of Rs.5 lakh and thereafter the ‘occupancy charges’ would get reduced by Rs.150/- per lak...

Citation : Amar Nath v. Gian Chand And Anr, Civil Appeal No. 5797 Of 2009  Date of Judgment/Order : 28-01-2022 Court/Tribunal : Supreme Court Of India Corum: K.M. Joseph, J. Background The Appellant claimed that a power of attorney (POA) was issued by him for sale of a property. The deed was registered and then subsequently cancelled by writing "Cancelled" on the POA in the presence of the Respondent and the Attorney and the Attorney had returned the POA back to him. He claimed that inspite of that, the Attorney sold the property to the Respondent. However, he admitted that the cancellation of the POA was not registered nor was the Respondent or the Attorney informed officially. The Respondent as well as the Attorney claimed that the POA was never cancelled and the transaction was within the knowledge of the Appellant. Trial court ruled against the Appellate which on appeal was overturned by the High Court and finally reached the Supreme Court. Judgment The Supreme Court agre...

Citation : Shobha vs Chairman, Vithalrao Shinde Sahakari Sakhar Karkhana Ltd. , CA 1860 OF 2022  Date of Judgment/Order : 11 March 2022 Court/Tribunal : The Supreme Court Corum: M.R. Shah, J. Background A sugarcane cutting labourer while engaged as a labourer by the Labour Contractor for cutting the sugarcane, which was to be supplied to the sugar factory (Respondent) died from snake bite. The appellants herein – heirs of the deceased filed a claim petition before the Commissioner Workmen’s Compensation when Neither the sugar factory nor the contractor paid the compensation due and payable under the Employee’s Compensation Act, 1923. The Commissioner on 25.01.2017, allowed the said application and directed the respondent Nos. 1 to 3 herein jointly and severally to pay the compensation amount of Rs.3,06,180/- alongwith simple interest @ 12% p.a. from the date of accident, i.e., 29.11.2009 till its full realization. The Commissioner also imposed the penalty of 50%...

Citation : Tedhi Singh Versus Narayan Dass Mahant, Criminal Appeal No.362 Of 2022 (Arising Out Of Slp (Crl) No.1963 Of 2019) Date of Judgment/Order : 7.3.2022 Court/Tribunal : The Supreme Court Corum: K.M. Joseph; Hrishikesh Roy, JJ. Background The Accused/Appellant and the Complainant were known to each other. The Complainant alleged the a loan was Rs. 7 lakhs was given by him and the cheque issued by the Accused was dishonored. The  High Court dismissed the appeal against the order of the Sessions Judge by which the Court in turn affirmed the order passed by the Chief Judicial Magistrate, all of them finding the Accused guilty and had order simple imprisonment of 1 year with fine. Judgment Observing that the lower courts have not fully appreciated the defence of the accused and partially allowing the appeal held that the Trial Court and the First Appellate Court have noted that in the case under Section 138 of the N. I. Act the complainant need not show in the first instance...

Citation : Avijit Dewanjee vs The Deputy Commissioner of Income Tax, ITA No.3249/Bang/2018 Date of Judgment/Order : 23.02.2022 Court/Tribunal : Income Tax Appellate Tribunal “B” Bench : Bangalore Corum: Shri Chandra Poojari, Accountant Member And Smt. Beena Pillai, Judicial Member Background In this case, the assessee claimed a sum of Rs.2,46,36,701 as loss on account of embezzlement of cash which was done by one of the employees of the assessee. The contention of the Appellant was that the cashier while working in the assessee’s firm embezzled cash on day to day basis which came to be known in the assessment year under consideration against which assessee lodged a FIR and also charge sheet is filed and the case is pending before the Court. the loss by embezzlement by employee should be treated as incidental to the business and this loss should be allowed as deduction in the year in which it is discovered.  Judgment Even if the cash is kept for business purposes, the assessee shoul...

In Shri Nikhil Garg vs Vs ITO (ITAT Jaipur), appeal was filed before the ITAT against the order of the CIT(A). Background The Audit Party of I.T. Department observed a difference of Rs. 66,35,957/- between the total turnover declared in the Profit & Loss Account and Sales Tax Assessment Order and the AO completed the impugned reassessment u/s 143(3)/263 of the Act vide order dated 05.03.2015 by making addition of Rs.66,35,957 (difference in turnover).  ld. CIT(A), who after considering the submissions of both the parties and material placed on record, dismissed the appeal filed by the assessee. Against which, the assessee has preferred the present appeal before the ITAT on the grounds mentioned above. The Appellant submitted that the assessee has manifestly proved on record that the difference between the declared sales and the sales as per VAT return was “consignment sale” made by the assessee on behalf of the consigner (an independent party), therefore, the addition...

In DARSHAN KAUR BHATIA VERSUS RAMESH GANDHI & ANR., suit for declaration of title inter alia pleading that adverse possession on the suit property filed by the Appellant was rejected by the lower court as well as the High Court. The High Court had opined that the appellant as plaintiff cannot seek a declaration based on adverse possession having matured into ownership on the premise that the plea of adverse possession was only a plea of defence and not of establishing rights as a plaintiff though injunction suit would be maintainable. The Supreme Court setting aside the order of the High Court reiterated that legal position in this behalf now stands enunciated to the contrary in terms of the judgment of this Court in Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors.- 2019 (8) SCC 729 wherein it has been held that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over...

In Sumit Bansal, Insolvency Professional vs Committee Of Creditors Of Jp Engineers Pvt. Ltd. & Ors, filed an Application before the Adjudicating Authority claiming the payment of fees @ Rs.2 Lakh per month on which Application the Adjudicating Authority took a decision to refer the matter to the Insolvency and Bankruptcy Board of India (IBBI) to examine the claim of Ex-IRP vis-à-vis his agreement with the CoC and to submit their specific recommendations and thereafter the matter be directed to be listed again before the Adjudicating Authority. Appellant challenging the order submits that IBBI has no jurisdiction to decide the question of payment of fees of the Appellant. He further submits that the Adjudicating Authority ought not to have asked for recommendation of the IBBI with regard to fee of the Appellant. He submits that the Adjudicating Authority ought to have itself decided the matter regarding fee. Judgment The NCLAT disagreeing with the Appellant observed that IBBI till n...

Rajendra K. Bhutta Versus Maharashtra Housing and Area Development Authority & Anr. Court / Forum : Supreme Court of India Citation : Civil Appeal No. 12248 of 2018  Coram : Justice R.F. Nariman, Justice S. Ravindra Bhat, Justice V. Ramasubramanian  Subject : Section 14 of the Insolvency and Bankruptcy Code, 2016  Date of Decision : February 19, 2020 Background Appeal was filed the IRP against judgment of the NCLAT confirming the order NCLT, rejecting application of the IRP seeking a direction from the NCLT to restrain MHADA from taking over possession of the land till completion of the CIRP, contending that such a recovery of possession was in derogation of the moratorium imposed under Section 14 of the Code. The NCLAT agreeing with NCLT had held that pursuant to the ‘Joint Development Agreement’ the land of the ‘Maharashtra Housing and Area Development Authority’ was handed over to the ‘Corporate Debtor’ and ‘except for development work’ the ‘Corporate Debtor’ has n...

In STATE OF UTTAR PRADESH & ORS. VERSUS PREM KUMAR SHUKLA & ANR, appeal was filed before the Supreme Court against the judgment of the Division Bench of Allahabad High Court dismissing the appeal filed by the State against the order of the single judge bench of Allahabad High Court. The Supreme Court quashed and set aside the judgment of the Division Bench objecting to the fact that except, reproducing paras 7 to 15 from the judgment of the learned Single Judge, there is no independent application of mind at all by the Division Bench. The Supreme Court also held that this is not the manner in which the Division Bench should have decided and disposed of the writ appeal. The Division Bench of the High Court has not exercised the appellate jurisdiction vested in it. There must be an independent application of mind and at least some independent reasoning to be given by the appellate Court while deciding and disposing of the writ appeal.  The court held that the impugn...

In SHAPOORJI PALLONJI FINANCE PRIVATE LIMITED vs REKHA SINGH, three separate  applications was filed before NCLT Jaipur by the Applicant as Financial Creditor under under Section 60 & 95 of IBC read with Rule 7(2) of Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtor) Rules, 2019 to initiate insolvency resolution process against Rekha Singh,  Ajay Kumar Singh and Siddharth Singh (hereinafter referred to as the Personal Guarantors / Applicants).  Background According to the Applicant, the Personal Guarantors had through a personal guarantee secured repayment of a term loan of Rs. 25,00,00,000/- advanced by the petitioner to Jumbo Finvest (India) Limited, an NBFC , under facility agreement dated 27.03.2018. However, the Debtor had failed to make payment of interest amounts for the months of September 2020 & October & October 2020 and also failed to repay the principa...