Court : Mumbai
Reported in : AIR1999Bom67; 1998(4)ALLMR464; 1998(4)BomCR867; 1999(1)MhLj629
..... yogesh mehta & others, i have held that in respect of proceedings in arbitration pursuant to bye-laws framed by the bombay stock exchange the procedure under section 10 of the arbitration & conciliation act, 1996 for constitution of the tribunal will be applicable, i have further held that if the tribunal is not properly constituted the award would have to be quashed and set aside in terms of section 34(2)(a)(v). ..... in view of that petition allowed in terms of prayer clause (a).it is made clear that it is always open to the respondents to move a fresh, in which event the provisions of section 43(5) of the arbitration and conciliation act, 1996 would apply.in the circumstances of the case, there shall be no order as to costs. ..... though the procedure under order xvii of the civil procedure code is not applicable, the tribunal after giving notice to the parties and after having adjourned the matter on the request of the petitioner was not supposed to further defer the matter in the absence of any request. ..... a learned single judge of this court has observed as under :-'an inquiry before the arbitrator should be assimilated as near as possible to proceedings in a trial in a court of law, and therefore a party to the arbitration must not only have notice of the time and place of the meeting, but he should be allowed reasonable opportunity of proving his case either by evidence or by arguments or both, and of being fully heard. ..... 1932 bom 68. .....
Tag this Judgment!Court : Mumbai
Reported in : 1998(4)ALLMR115; 1999(5)BomCR124; 1999BomCR(Cri)124; 1999CriLJ4361
..... we see great force in the above submission because once the cheque is issued by the drawer a presumption under section 139 must follow and merely because the drawer issues a notice to the drawee or to the bank for stoppage of the payment it will not preclude an action under section 138 of the act by the drawee or the holder of a cheque in due course. ..... while interpreting section 138 of the act, it firstly observed as under : 'it would thus be clear that when a cheque is drawn by a person on an account maintained by him with the banker for payment of any amount of money to another person out of the account for the discharge of the debt in whole or in part or other liability is returned by the bank with the endorsement like (1) in this case, 'refer to the drawer' (2) 'instructions for stoppage of payment' and stamped (3) 'exceeds arrangement', it amounts to dishonour within the meaning of section 138 of the act. ..... 6 is a partnership firm registered under the indian partnership act, 1932 having its office and place of business at amrut, hansoti road, carna lane, ghatkopar (west), mumbai- 400 086. .....
Tag this Judgment!Court : Mumbai
Reported in : 1998(4)BomCR186
..... godbole placed reliance on the judgment of division bench of the madras high court : air1963mad302 central united bank ltd. ..... the learned trial judge has referred to the provisions of the indian partnership act and since the conclusions of the learned trial judge are based on the interpretation of these provisions, it is necessary to refer to the same. 11. ..... similarly section 45 of the said act makes provision that notwithstanding me dissolution of a firm, the partners continue to be liable as such to third parties for any act done by any of them which would have been an act of the firm, if done before the dissolution, until public notice is given of the dissolution. ..... even otherwise the acknowledgment given by one of the partners was not sufficient to fasten the liability on the other partners in view of the provisions of section 20 of the limitation act. 8. ..... 9 as under : thus the law prior to the enacting of the indian partnership act was the same as in england. ..... sub-section (2) of section 32 makes a provision that a retiring partner may be discharged from the liability to a third party for acts of the firm done before his retirement by an agreement made by him with such third party and the partners of the reconstituted firm. ..... 2 is held to be liable this specific provision of indian limitation act absolves him of the liability and as such learned trial judge was in error in passing a decree against defendant no. 2. .....
Tag this Judgment!Court : Mumbai
Reported in : 1998(2)ALLMR292; 1998(5)BomCR305; (1998)1BOMLR179; 1998(1)MhLj700
..... the high court relying upon proviso (a) to section 35 of the stamp act, held that although the original award cannot be regarded to have been duly stamped, there should not be any serious objection in the circumstances of the case to treat the stamp on the copy of the award as intended to serve as payment of stamp duty and penalty under proviso (a) to section 35 of the stamp act, so as to enable the original award to be admitted in evidence. ..... the question that was urged before the supreme court was the correctness of the stand that want of stamp paper would be an illegality apparent on the face of the award and therefore in exercise of the powers under section 16(1)(c) of the arbitration act, the court would be justified in remitting the award to the arbitrator for reconsideration. ..... 1 and 2 are partnership firms registered under the partnership act, 1932. ..... pathak contended that even if the case did not come within section 16(1)(c) of the arbitration act, the order in the present case can be supported under section 151 of the code of civil procedure, which preserves the inherent power of a court to make such orders as may be necessary for the ends of justice. ..... similar is the view taken by the madras high court in dasaratha rao v. ..... tulzapurkar relied on the decisions of the bombay high court and madras high court reported in purshottamdas v. ..... 1956 madras 134, respectively.7. .....
Tag this Judgment!Court : Mumbai
Reported in : (1998)100BOMLR179
..... that even though the case may not fall within section 16(1)(c) of the arbitration act, such a remitting may be called for and justified by a reference to the inherent powers of the court saved in section 151 of the civil procedure code, dealing with this the supreme court observed that when once the award had been made by the arbitrator, he becomes functus officio and if he wants to be called to re-write the award on a stamp paper it would be calling upon the arbitrator to prepare another award which would ..... the high court relying upon proviso (a) to section 35 of the stamp act, held that although the original award cannot be regarded to have been duly stamped, there should not be any serious objection in the circumstances of the case to treat the stamp on the copy of the award as intended to serve as payment of stamp duty and penalty under proviso (a) to section 35 of the stamp act so as to enable the original award to be admitted in evidence. ..... 1 and 2 are partnership firms registered under the partnership act, 1932. ..... similar is the view taken by the madras high court in dasaratha rao v. ..... tulzapurkar relied on the decisions of the bombay high court and madras high court reported in parshottamdas v. .....
Tag this Judgment!Court : Mumbai
Reported in : 1998(2)ALLMR524; 1998(1)BomCR782
..... he also drew our attention to the decision of the madras high court in : air1983mad150 m/s. ..... parekh urged that admittedly on the date of the suit, the plaintiff firm was not registered under section 59 and, therefore, the suit could not have been instituted against the defendant in view of section 69(2) of the indian partnership act. mr. ..... section 69(2) of the indian partnership act, reads as follows:---'no suit to enforce a right arising for a contract shall be instituted in any court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the register of firms as partners in the firm.'6. in a.l.r. ..... the plaintiff applied for withdrawal of the notice of motion on the ground that the suit is not maintainable in view of section 69(2) of the indian partnership act. ..... in the light of the principle laid down in the aforesaid decisions, it appears that the law is well settled that a firm not registered under section 59 suffers from the legal disability of enforcing a right arising from a contract by instituting a suit against a third party by operation of section 69(2) of the act. ..... the suit was not maintainable in view of the provisions of section 69(2) of the partnership act. ..... in other words, a partner of an erstwhile unregistered partnership firm cannot bring a suit to enforce a right arising out of a contract falling within the ambit of section 69 of the partnership act. .....
Tag this Judgment!Court : Mumbai
Reported in : 1998(1)BomCR437; 1998(1)MhLj333
..... shri dhorde, the learned counsel for the petitioner, further relied on the provisions of section 53 of the bombay prohibition act, 1949 (hereinafter referred to as 'the act' for the purposes of brevity), pointing out that the said license was issued in the name of two as an undertaking was given by the parties to abide by all the conditions of license, permits, passes, or authorizations and the provisions of the act. ..... while dealing with this matter, their lordships of the supreme court, dealt with the provisions of section 5 of the act r/w rule 4 thereunder and the condition 4-a of the licence observing that the same were of regulatory measure and it was well within the powers of the licensing authority to fix the rates of admission and classification of the sitting in the interest of general public. ..... it is further clear from the provisions of section 53 that any license, permit, pass or authorization granted under the provisions of this act and also subject to the conditions that the person applying therefor gives specific undertaking and further that the concerned officer is also of the opinion that the said person shall abide by all the conditions of the permit, pass or authorization is only entitled to get such a licence, permit or pass or authorization. .....
Tag this Judgment!Court : Income Tax Appellate Tribunal ITAT Mumbai
Reported in : (1997)63ITD195(Mum.)
..... we set aside the decision of the allahabad high court and also of the tribunal and answer the question formulated by the revenue under section 256(1) of the act in the negative, in favour of the revenue and against the assessee.14.15 we may once again reproduce the observations of the madras high court (supra) where the distinction between the provisions of development rebate and investment allowance on the concept of the owner of the machinery, use of the machinery by the owner thereof for the business, the machinery being installed at a place other than that of the premises of the owner and used for ..... manufacturing article or thing were clearly brought out - in other words, while the ..... under the indian partnership act, 1932, the partnership firm registered thereunder is neither a person nor a legal entity. .....
Tag this Judgment!Court : Income Tax Appellate Tribunal ITAT Mumbai
Reported in : (1997)60ITD662(Mum.)
..... hills [1932] 16 tax case 430, 447, it was held : "the cardinal requirement is that all the contributors to the common funds must be entitled to participate in the surplus and that all the participators in the surplus must be contributors to the common fund, in other words, there must be complete identity between the contributors and the participators." 6. ..... [1993] 202 itr 198/71 taxman 351 has held : "the cardinal principle to apply the test of mutuality is that all the contributors to the common fund must be entitled to participate in the surplus and that all the participators in the surplus must be contributors to the common fund. ..... moreover, the receipt of this amount by the society, could never be considered as akin to a windfall because the receipt of the amount by the society was in the terms of the contract which had been entered into by the society with its members. ..... briefly the facts : the assessee is a co-operative housing society.it is registered under section 10 of the bombay co-operative societies act, 1925. ..... aiyer's judicial dictionary at page 651, 'mutuality' is defined as reciprocity of obligations, the state of things in which one person, being bound to perform some act, for the benefit of another, that other on his side is bound to do something for the benefit of the former.8. .....
Tag this Judgment!Court : Mumbai
Reported in : (1997)99BOMLR284
..... this clarifies why the power under section 11 is conferred without prejudice to the provisions of section 21 of the general clauses act.thus, on a conjoint reading of section 21 of the general clauses act and section 11 of the act, it becomes clear that the power of revocation can be exercised by three authorities, viz, officer of the state government or the central government, the state government as well as the central government, shri aney has therefore argued that by conjoint reading of section 21 of general clauses act and section 12 of the pitndps act, the power of revocation can be exercised by respondent no. ..... (2) would be exercisable in cases covered by sub-section (1).in para 9 it is held as under:the power conferred under clauses (a) and (b) of sub-section (1) of section 11 is in fact extension of the power recognised under section 21 of the general clauses act and while under the general clauses act, the power is exercisable by the authority making the order, the named authorities under clauses (a) and (b) of section 11(1) of the act are also entitled to exercise the powers of revocation.in para 10, it is observed further:the pronounced judicial view of this court was that repeated orders of detention ..... during the search,(a) 1932 kgs, of mandrax tablets valued at rs. .....
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