Court : Kolkata
Decided on : Apr-23-1959
Reported in : AIR1959Cal585
K.C. Das Gupta, C.J. 1. The main question for decision in this appeal is whether the plaintiff, who is the appellant before us, should be allowed to raise an issue as regards relief under Section 65 of the Indian Contract Act though the suit as framed was for recovery of a sum of money on the basis of a contract and on an allegation of failure of consideration for the contract. It appears that the plaintiff being in need of a Lancashire Boiler registered its requirement with the Department of Government which had been helping parties in India to obtain such boilers from abroad. By a letter dated 31st of January 1946 addressed to the Assistant Coal Commissioner of the Department of Industries and Supplies. Government of India, the plaintiff requested allocation of 2 Lancashire Boilers including one 'by John Thompson with a working pressure of 150 lbs. per sq. inch complete with fittings, mountings and firebars'. On 19th February 1946 the Assistant Coal Commissioner wrote that one second...
Tag this Judgment!Court : Kolkata
Decided on : Mar-02-1959
Reported in : AIR1959Cal464,63CWN467
Lahiri, J.1. Three questions of some importance arise for consideration in this appeal and before I proceed to consider them on merits I must record my grateful appreciation of the ability with which learned Counsel appearing on both sides have presented their respective cases before the Court. The first question is whether an unsecured Creditor of a limited company has any locus standi in a proceeding for extension of time for registration of a mortgage or charge under Section 120 of the Indian Companies Act, 1913 as amended by Act XXII of 1936. The second question is whether the Court is competent to extend the time under that section for registration of a mortgage or charge in a case which comes under Section 109-A of the Indian Companies Act of 1913, and if the answer to the second question be in the negative, the third question is whether an order of extension actually made by the Court under Section 120 (as amended by Act XXII of 19S6) in a case which comes under Section 109-A, i...
Tag this Judgment!Court : Kolkata
Decided on : Mar-17-1959
Reported in : AIR1959Cal636
Das Gupta, C. J.1. This appeal is against the order of the Deputy Registrar of Trade Marks refusing an application by the appellant, Bengal Immunity Co. Ltd., for registration or the word 'B. I. Phlogiston' in white on a dark background with the name of the appellant, Bengal Immunity Company Ltd., and its address Calcutta below the same as the trade mark for certain medicinal preparation. As originally made the application was for registration only of the word 'B. I. Phlogiston'. The Registrar pointed out the objection to registration of this word 'B. I. Phlogiston' as the word 'B. I.' prefixed to 'Phlogiston' would indicate the presence of double the chemical element 'Phlogiston' and would be likely to cause a confusion. Though at first unwilling to make any modification, the applicant ultimately amended his application by putting full stops after 'B' and 'I' and removing the hyphen before 'P' so that the word as it now stands in the application is, as already indicated, 'B. I. Phlogi...
Tag this Judgment!Court : Kolkata
Decided on : Mar-23-1959
Reported in : AIR1959Cal526
ORDERP.C. Mallick, J. 1. This is an application under Section 33 of the Indian Arbitration Act to determine the existence of an arbitration agreement. 2. The petitioner is a contractor who submitted on 18-7-1952 a tender for the supply of sal and teakwood of twenty different specifications for the supply of which tenders were invited by the Directorate of Supply. The Directorate of Supply purported to accept the tender submitted by the petitioner on 13-11-1952 and an acceptance note was issued on the same date. The petitioner contends that there was no concluded contract on the so-called acceptance of tender on 13-11-1952, firstly because the tender was open to acceptance by the Directorate of Supply till 31-10-1952 and could not be accepted on 13-11-1952 and secondly, because the terms contained in the tender are different from the terms issued in the A/T dated 13-11-1952 and hence the parties were not 'consensus ed idem'. The respondents contend that the A/T dated 13-11-1952 evidence...
Tag this Judgment!Court : Kolkata
Decided on : Mar-25-1959
Reported in : AIR1959Cal500,1959CriLJ965,63CWN628
Das Gupta, C.J. 1. This reference has been made by a Division Bench of this Court as the learned Judges (Guha Ray. J. and N.K. Sen, J.) found themselves in disagreement with the decision of another Division Bench in Bisseswar v Emperor : AIR1924Cal1034 on the important question whether a Court which, has jurisdiction to try an offence of conspiracy having been committed within the local limits of its jurisdiction has also jurisdiction to try offences committed in pursuance of the conspiracy, though, committed outside the local limits of the Court's jurisdiction. The question arose before Guha Ray, J., and N.K. Sen, J. in an application under Section 439 of the Code of Criminal Procedure made by one Jiban Banerjee. Jiban along with 23 other persons were committed to the Court of Sessions, 24 Parganas, by the Police Magistrate, Sealdah, to take their trial on charges under Sections 489-A, 489-B, 489-C and 489-D read with Section 120-B of the Indian Penal Code. Against Jiban there was a c...
Tag this Judgment!Court : Kolkata
Decided on : Apr-22-1959
Reported in : AIR1960Cal258,63CWN711
Lahiri, J.1. This appeal has been referred to tile Division Bench by Banerji J. on account of a conflict oil judicial opinion on the point that arises for consideration in this appeal. That point is whether the appeal filed by the respondent in the lower appellate court was barred by limitation. The plaintiff who is the appellant before us filed a suit for recovery of possession of 1.22 acres of land on declaration of his tenancy right under defendant No. 2. The disputed land was described in two schedules of the plaint, namely, schedules Ka and Chha. The prayer made by the plaintiff in the plaint was to the effect that the plaintiff's tenancy right might be declared under defendant No. 2 in respect of the land described in schedule Ka of the plaint. The second prayer in the plaint was that a permanent injunction might be passed against defendants Nos. 1 and 2 restraining them from exercising any act of possession in respect of the land described in schedule Ka or in the alternative if...
Tag this Judgment!Court : Kolkata
Decided on : Apr-23-1959
Reported in : [1959]36ITR449(Cal)
PRASANTA BEHARI MUKHERJEE, J. - This is an application by John Patterson & Co. (India) Ltd. under article 226 of the Constitution for a writ of certiorari and mandamus challenging certain income-tax assessment orders and certificate proceedings. The dispute arises with regard to the assessment of R. W. Baddley, an employee of the petitioner. He was employed as a sales manager on a monthly salary of Rs 750 and a commission of 1 1/2 per cent. on the total sales.The only point urged by the learned advocate for the petitioner is that the notices of the certificates referred to 'The Principal Officer, M/s. John Patterson and Co. (1) Ltd. (a/c R. W. Baddley)' and was, therefore, bad under section 18(9) of the Indian Income-tax Act, which provided that 'Every person deducting income-tax..... shall at the time of payment of the sum from which tax has been deducted furnish to the person to whom such payment is made a certificate to the effect that income-tax.... has been deducted and specifying...
Tag this Judgment!Court : Kolkata
Decided on : Apr-27-1959
Reported in : AIR1960Cal433,[1960]40ITR155(Cal)
ORDERD.N. Sinha, J.1. The facts in this case are shortly as follows: In the year 1947, the partnership firm of Balmukund Radheshyam came into existence. The petitioner, Shivram poddar was a partner of the said firm. It appears from the returns filed by the Firm for the years 1949-50 and 1950-51, that the principal place of business of the firm was at No. 138, Cross Street, Calcutta, with branches at Ratlam, Indore and 357, Kalbadevi Road, Bombay. The1 firm carried on business as commission agent in cotton, sale and purchase of cotton and cotton piece goods, and speculation in cotton and silver. It is said that the firm was dissolved in February 1950. and that the notice of dissolution of the firm was duly given to the Income Tax Officer, Special Survey Circle III, Calcutta, by March, 1953. This however, is denied by the respondents. On August 20, 1952 a return was filed in respect of the income of the firm before the Income Tax Officer, Special Survey Circle III, Calcutta in respect of...
Tag this Judgment!Court : Kolkata
Decided on : Apr-28-1959
Reported in : AIR1960Cal592
B.N. Banerji, J.1. This appeal, at the instance orthe defendants, is directed against an appellate decree affirming the decree passed by a learned Munsir.2. The suit, out of which this appeal arises, was for declaration of the plaintiff's right of passage over the land described in schedule 'Kha' to the plaint, acquired as an easement and for permanent Injunction restraining the defendants from interfering with that right of passage. The prayers as originally made in the plaint were subsequently amended and over and above the reliefs claimed, the plaintiff further claimed declaration of the plaintiff's right of passage over the disputed land as easement of necessity.3. According to the plaintiff, one Gourhari Das Naskar and certain other persons were owners of three plots of land, namely, c. s. plots Nos. 1518, 1519 and 1522 at Mouza Purba Barisa, within the Jurisdiction of Behala P. S., District 24-Parganas. To the West of c. s. plots Nos. 1519 and 1522, according to the plaintiff, th...
Tag this Judgment!Court : Kolkata
Decided on : Apr-28-1959
Reported in : AIR1959Cal704
Das Gupta, C.J. 1. The orders against which this appeal is directed were made by Sinha J., on an application by the Manager of the Purna Theatre and the executor to the estate of Manomoy Banerjee, who is carrying on business under the name of Purna Theatre. As people who frequent cinema houses are aware, advertisements are displayed on the screen during the usual hours of display of pictures. According to the present appellants, the owners of the theatre are bound in law to take out licenses in respect of the display of such advertisements on payment of money in accordance with the rules made by the Corporation under Section 229 of the Calcutta Municipal Act, 1951. The owners of the Purna Theatre having refused to take out such licenses, the Deputy License Officer of the Corporation wrote to the Manager on 5-1-1956 stating that action would have to be taken within the specified date for enforcement of law in respect of this. On the 2nd of February 1958 the License Inspector issued a no...
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