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Sunday, March 28, 2010

2010(1) LAW HERALD (P&H) 136 (SC)
IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice J.M.Panchal
The Hon’ble Mr. Justice Surinder Singh Nijjar
Civil Appeal No. 829 of 2003
Haryana Financial Corporation
v.
Rajesh Gupta
{Decided on 15/12/2009}
Transfer of Property Act, 1882, Section 55(1)(a)(b)--Forfeiture of earnest money-Sale of various units of a sick industry by way of auction--Respondent succeeded in the bid--Amount of Rs.2.5 lakhs, deposited by the respondent by way of earnest money--Respondent informed that the selling units did not have any independent passage--There was no independent approach road to the Unit--Appellant asked respondent to deposit 25% of bid amount-Respondent did not deposit the amount-Appellant forfeited respondent's earnest money and issued advertisement inviting fresh tenders-Writ petition, seeking refund of earnest money--HC allowed writ petition--Appeal against-- SC observed--Appellants failed to disclose the material defect about the non-existence of independent passage--Without any independent passage the plot of land would be not more than an agricultural plot, not suitable for development as a manufacturing unit--Appellants/ Corporation clearly acted in breach of Section 55 (1) (a) and (b) of The Transfer of Property Act, 1882--Corporation not selling the property as an official liquidator--Respondent has not failed to comply with the conditions of sale--Direction issued to appellant to pay the earnest money--Appeal dismissed. (Paras 19 to 23)
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Pradeep Kumar v. Vijay Kumar Sharma
907 - 2010(1) LAW HERALD (P&H) 142
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Sham Sunder
C.M. No. 9066-C of 2009 in RSA No. 3518 of 2008
Pradeep Kumar
v.
Vijay Kumar Sharma
{Decided on 14/09/2009}
For the Appellant: Mr. V.B. Aggarwal, Advocate.
For the Appellant No. 1: Ms. Puja Chopra, Advocate.
For the Respondent No.1: Mr. G.S. Bhatia, Advocate.
For the Respondent No.2: Mr. V.B. Aggarwal, Advocate.
For the Respondent No.3: Mr. Narinder Singh Panwar, Advocate.
IMPORTANT POINT
Legal Representative--Impleadment--Applicant can be made a party on basis of registered Will to represent estate of deceased person or as an intermeddler.
Legal Representative--Means a person who in law represents estate of deceased person and where a party sues or is sued in representative character the person on whom estate devolves on death of party of suing or sued.
(A) Civil Procedure Code, 1908, O.22, R.4--Legal Representative--Impleadment--Applicant can be made a party on basis of registered Will to represent estate of deceased person or as an intermeddler --From copy of Will Court could be satisfied that applicant is necessary party to represent estate of deceased--Legality and validity of Will may be got decided by applicant in appropriate forum--No inquiry is essential in the matter at this stage--Application for impleadment of legal representation on basis of will of deceased allowed. (P.7)
(B) Civil Procedure Code, 1908, S.2(11)--Legal Representative--Meaning of--Legal representative means a person who in law represents estate of deceased person and where a party sues or is sued in representative character the person on whom estate devolves on death of party of suing or sued. (P.7)
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Pawan Mandal & Anr. v. State of Punjab
908 - 2010(1) LAW HERALD (P&H) 143 (DB)
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice Jasbir Singh
The Hon’ble Mrs. Justice Daya Chaudhary
Crl. Appeal No. 41 DB of 2004
Pawan Mandal & Anr.
v.
State of Punjab
{Decided on 30/10/2009}
For the Appellants: Ms. Sumanjit Kaur, Advocate.
For the Respondent-State: Mr. D.S. Brar, Deputy Advocate General, Punjab.
(A) Indian Penal Code, 1860, S.364/34 & 302--Murder--Blind Murder--Circumstantial Evidence--Last seen evidence--Dead body found in deserted well wrapped in gunny bag--Delay of 9 days in lodging FIR not explained--No evidence that on which day deceased was last seen in company of accused and upto which time they remained together--Motive put up by prosecution that there was some dispute with regard to amount of Rs.5,000/- spent on purchasing rickshaw had already settled between parties--Weapon of offence not recovered at instance of accused-appellants--Prosecution failed to prove case against accused-appellants--Appellants acquitted. (P.9)
(B) Indian Penal Code, 1860, S.364/34 & 302--Murder--Blind Murder--Circumstantial Evidence--Last seen evidence--Dead body found in deserted well wrapped in gunny bag--Chain of prosecution story is incomplete--Link evidence missing--Material contradictions and discrepancies in statements of prosecution witnesses--Without conclusive evidence appellants cannot be convicted on basis of ‘last seen’ evidence--Disclosure statement made not proved by prosecution--Accused acquitted.
(C) Indian Penal Code, 1860, S.364/34 & 302--Murder--Blind Murder--Circumstantial Evidence--Last seen evidence--Dead body found in deserted well wrapped in gunny bag--When case rests upon circumstantial evidence such evidence must satisfy following tests:
“(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime
was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” (P.17)
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