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Judgments

(1) Vijayan; (2) Ponraj; (3) Aruldass @ Gurusamy; (4) Sivasankar; (5) Alagarsamy vs State, Through Inspector of Police, Pudur Police Station, Tuticorin  [MADRAS HIGH COURT, 17 Jul 2008]
Appeal to challenge conviction and sentence - Appellants accused of offences punishable u/ss. 148. 147, 302, 302 r/w 149 and 332 - FIR was found to be beyond belief as in crowd, confusion and disturbance, the agitated atmosphere and the violence that ensued, prosecution witness would have remembered the names of 53 persons, discrepancy regarding the time when the deceased left his home, delay in lodging the F.I.R and in reaching court, recovery part of the case of the prosecution very fragile - Appeal allowed.
J.Balamurugan vs (1) Union of India, Represented By Ministry of Finance, New Delhi; (2) Branch Manager, State Bank of India, Periakulam Branch, Theni  [MADRAS HIGH COURT, 16 Jul 2008]
Whether petitioner belonging to Schedule Caste and having worked in Indian Army for 47 days and having not obtained the required percentage of marks was entitled to obtain educational loan? - Held, it may not be a fundamental right on the part of the petitioner to obtain a loan but it remains the fact that the constitution has given a protection for the people to have the right of education - When the policy of the Government on one hand is to encourage people from downtrodden community to come in the educational level, it is not open to the second respondent/bank to take such a stand saying as if the petitioner has obtained less than 65% of marks in bachelor degree and therefore, there may not be a possibility for the petitioner to complete his M.B.A. degree which may result in non-repayment of the loan - If the bank has decided against the petitioner on the basis that the petitioner has got no repaying capacity even that is against the norms fixed by the Government as it is seen in the public media - Petition allowed.
Revenue Divisional Officer, Chidambaram vs (1) Uthrapathi; (2) Pandian  [MADRAS HIGH COURT, 16 Jul 2008]
Land Acquisition Act, 1894 - Whether the enhanced compensation of Rs 4, 000/- per cent from Rs 300/- per cent for acquisition of land on ground that similar land was sold at the rate of Rs.4, 000/- per cent, justifiable? - Held, since the lands acquired under sale deed and the lands acquired are similar in all aspects having the same potentiality, the Land Acquisition Tribunal has enhanced the compensation of Rs.300/- per cent fixed by the Land Acquisition Officer to that of Rs.4, 000/- per cent - Appeals dimissed.
P.A.Inaythulla vs (1) District Collector, Tirunelveli; (2) Commissioner of Police, Tirunelveli; (3) Inspector of Police, Melappalayam Police Station, Tirunelveli  [MADRAS HIGH COURT, 15 Jul 2008]
Petition for direction to prevent elephants from being taken on road and stop bursting of crackers and beating drums affecting public peace during religious festival - Sub-Inspector submitted that every year the festival was being conducted during that period and he would take steps to see that there was not any bursting of crackers or beating of drums through en-route which would take place only at the starting of the procession - Held, it is open to them to start the procession with bursting of crackers and beating of drums at the initial stage and at en-route they should not burst crackers and beat drums - Direction issued third respondent to permit to carry on the festival, without causing any public nuisance - Petition disposed of.
V.Kaliamoorthy vs Principal District Judge, Nagapattinam  [MADRAS HIGH COURT, 15 Jul 2008]
Petition to challenge order inflicting punishment of stoppage of two increments with cumulative effect on grounds that order of punishment had been passed without giving opportunity to defend his case, as the copies of documentary evidence were not supplied prior to filing of written statement - Held, records were shown to the delinquent; allegations as were levelled against him relates to endorsement made by him in one or other judicial records, which he had perused, therefore, it cannot be held that the delinquent was not given proper opportunity to file effective written statement - Petition dismissed.
Kotak Mahindra Bank Limited, Represented By Its Deputy Vice-President, Chennai vs (1) Kothari Industrial Corporation Limited, Represented By Its Chairman, Chennai; (2) Kothari (Madras) International Limited, Represented By Its Director, Chennai  [MADRAS HIGH COURT, 15 Jul 2008]
Whether the order without determining the question relating to substitution before determining the legality and propriety of transfer of mortgaged property was proper? - Held, issue whether the transfer of mortgaged property as alleged to have been effected by the 1st respondent in violation of the order of status quo, is proper or not and whether such transfer should be approved by allowing the 1st respondent to do so cannot be determined at the stage of final disposal of the original application, which requires determination prior to the same - In case the original application is allowed and the question of recovery of debt arises, it will be difficult for the Recovery Officer to recover the amount due on the mortgaged property, if such determination is not made prior to the decision in the original application - Without determination of the question of substitution of the petitioner, in place of original applicant, it is not desirable to decide the question of transfer on the basis of a petition filed by petitioner - Petition disposed of.
(1) K.Rajagopal; (2) K.Alagirisami vs (1) Jayalakshmi Ravindran; (2) Rajagopal Thamban; (3) Gayathri  [MADRAS HIGH COURT, 15 Jul 2008]
CPC, 1908 - Limitation Act, 1963 - Whether trial court had rightly rejected the suit on ground that suit was barred by limitation? - Held, Court can exercise its power under O. 7, r. 11(d) of CPC only if the plaint pleading appears to show that the plaint is barred by limitation or under any law in force - Without giving an opportunity to the parties to let in evidence on the basis of their pleadings, the trial Court ought not to have rejected the plaint without even numbering the same at the threshold - Whether the parties have considered the time as essence of contract in the case or not is a matter to be proved only by evidence - Appeal allowed.
(1) Ponnupandian; (2) Subramanian; (3) Chelladurai; (4) Krishnasamy Thevar; (5) Murugan; (6) Periyamari; (7) Chinnamari; (8) Sangilipandi; (9) Periyasamy vs State, Represented By Inspector of Police, Kayathar Police Station, Tuticorin  [MADRAS HIGH COURT, 11 Jul 2008]
Indian Penal Code, 1860 - Appeal against conviction and sentence - Appellants convicted for offences punishable u/ss. 148, 302, 302 r/w 149, 201 IPC, 1860 - Held, when ocular testimony of prosecution witnesses are available on record to convince court to confirm the conviction, mere delay in launching the First Information Report cannot at all be a ground to reject the case of the prosecution - Where the ocular testimonies are available on record, the steps taken by the Investigating Officer to summon the Finger Print Expert to rule out all the possibilities cannot be a ground for rejection of the case of the prosecution - Appeal dismissed.
George D.Corneelius vs Rinku A.Shah  [MADRAS HIGH COURT, 11 Jul 2008]
Application filed for sending pronote to Forensic Sciences Laboratory for opinion regarding the age of the signatures and the date found on the front page of pronote dismissed - Whether trial court rightly dismissed the application holding that the alteration could be proved by evidence and therefore, verification of age and alteration in the year need not be proved by expert opinion? - Held, revision Petitioner/Defendant at the earliest point of time has disputed the genuineness of the pronote and has filed necessary application before the commencement of evidence on his side and had admitted his signature in the pronote and therefore, s. 118 of the NIA, 1881 will come into operation, therefore, in order to dislodge the presumption cast upon him, it is absolutely necessary on the part of the Revision Petitioner/Defendant to take out such application to send pronote for expert opinion - It is open to the Revision Petitioner/Defendant to summon the expert to the Court to have the documents examined and to have photocopies of the same for the purpose of investigation - Petition allowed.
R. Balaiya vs Chairman Common Cadre Authority, Joint Registrar of Co-Operative Societies, Cuddalore  [MADRAS HIGH COURT, 11 Jul 2008]
Constitution of India, 1950, art. 21 - Subsistence allowance - Whether respondent can refuse to pay subsistence allowance on ground that there is want of fund in the bank and the petitioner having committed misappropriation, falsification of accounts and fraud subsistence allowance could not be paid to the petitioner? - Held, when a person is placed under suspension, subsistence allowance is bound to be paid to the suspended employee - Allegations against the petitioner can be a reason for initiating disciplinary action and for placing the petitioner under suspension, but the same cannot be the reason to deny subsistence allowance - Want of finance cannot be a reason to deny subsistence allowance as the principle behind the payment of subsistence allowance is to pay some amount for the sustenance of petitioner's life, which is guaranteed u/art. 21 of the Constitution - Petition disposed of.
M.Ramiah vs (1) Commissioner, Tirunvelveli Corporation, Tirunvelveli; (2) Mayor Administrative Counsel Tirunelveli Corporation  [MADRAS HIGH COURT, 11 Jul 2008]
Tamil Nadu Municipal Service (Disciplinary and Appeal) Rules, 1970 - Whether delay can be a ground to quash charge memo and whether Bill Collector cannot be saddled with the liability for non-collection of tax due? - Held, delay by itself cannot be a ground to quash the said charge memo - It is one thing to state that the Bill Collector cannot be saddled solely with the responsibility for non-collection of dues by the Corporation, but, it is an other thing to say that even if there was any negligence on his part for not collecting the due amount, still he is not liable for any disciplinary action - While an employee working in a Corporation cannot escape from his accountability, at the same time, the entire loss cannot be saddled on one person, as if he alone is responsible for such a loss; it is after conducting an enquiry, even under the TNMS Rules, 1970 for causing loss, consequential recovery can be made which considered as a major penalty thus respondent, merely because the petitioner had not sent a reply, cannot pass a final order, without fixing the liability on the petitioner - Petition disposed of.
T.Jayaprakash vs (1) 1 Director, Treasuries and Accounts Department, Madras; (2) Treasury Officer, Treasury  [MADRAS HIGH COURT, 10 Jul 2008]
Petition for direction to first respondent to dispose of petitioner's representation within specified time - Direction issued - Petition disposed of.
P.K.Pandian vs Komala  [MADRAS HIGH COURT, 10 Jul 2008]
Indian Evidence Act, 1872, s. 76 - Whether certified copy of power of attorney can be admitted in evidence? - Held, certified copy of the power of attorney produced by the petitioner is a public document within the meaning of s. 74(2) of the IEA, 1872 and the same is admissible in evidence as provided under s. 76 of IEA, 1872 - Petition allowed.
A.Elangovan vs (1) District Registrar, Thiruvannamalai; (2) Inspector General of Registration, Madras; (3) Secretary To Government, Commercial Taxes and Religious Endowments Department, Madras  [MADRAS HIGH COURT, 10 Jul 2008]
Petition for direction to third respondent to dispose of petitioner's representation within specified time - Direction issued - Petition disposed of.
Managing Director, Tamil Nadu State Transport Corporation, (Madurai Division V), Limited, Virudhunagar vs (1) Ramaraj; (2) Vanaja; (3) Renukadevi (Minor)  [MADRAS HIGH COURT, 10 Jul 2008]
Whether accident occurred due to negligent driving by driver of appellant Corporation? - Held, evidence of P.W.2, friend of the deceased, assumes vital significance and he has given a clear account about the manner and mode of happening of the occurrence lucidly and the fact that he informed the police belatedly one month after the occurrence when he was examined by them, will not affect the claim of compensation in any way - Accident has taken place due to the rash and negligent driving of the bus belonging to the appellant/State Transport Corporation by its driver - Appeal dismissed.
A.Panneerselvam vs State, Through Inspector of Police, C.B.I./Scb, Chennai  [MADRAS HIGH COURT, 09 Jul 2008]
Whether the polygraph (Lie Detection) test and the brain mapping examination as ordered by the learned Chief Judicial Magistrate, Madurai is essentially necessary for further investigation and if so, is it harmful to the health condition of the person subjected to such test and examination? - Held, authenticity of the reports given out of the polygraph test and the brain mapping examination could be ascertained only with the other evidence by the trial Court at the time of trial - Polygraph and brain mapping tests are like taking MRI or CT Scan and the scientific value of such tests and credibility thereof can be evaluated only during course of trial and it is high time for the Investigating Agency to take recourse to scientific methods of investigation and therefore it has become necessary for this Court to permit the Investigating Agency to take reports through scientific methods of investigation - Petition dismissed.
M.A.Mohamed Thameem vs F.M.Bilal  [MADRAS HIGH COURT, 08 Jul 2008]
Tamil Nadu Buildings (Lease & Rent Control) Act, 1960, s. 7(3); Negotiable Instruments Act, 1881, s. 138 - Whether tenant can be held liable u/s. 138 NI Act, 1881 for dishonour of cheques which were issued to pay advance rent to landlord which was more than legally permissible amount i.e, more than a month? - Held, landlord shall not demand more than a month's rent as advance and the same cannot be enforced legally in view of the provisions contained in s. 7(3) of the Act since any stipulation in contravention of sub-section (1) or sub-section (2) shall be null and void - Two cheques in question came to be issued only towards the balance of the advance amount and such amount was not legally payable by the tenant / petitioner herein as per s. 7(2) of the Act, therefore it has to be held that the cheques have been issued by the petitioner in respect of a legally unenforceable liability - When that being so, there was no legal duty cast on the tenant / petitioner to comply with the demand made by the landlord in his legal notice which was sent pursuant to the dishonour of the said cheques - Petition allowed.
R.Bakthavathasalam vs (1) Tamil Nadu Government, Represented By Its Secretary Department of Education, Madras; (2) Director of School Education, Madras; (3) Chief Educational Officer, Tiruvannamalai; (4) A.Arockiyasamy; (5) D.Gopalakrishnan  [MADRAS HIGH COURT, 07 Jul 2008]
Permission sought to make representation to second respondent with regard to the reliefs sought for in the writ petition - Permission granted - Direction issued - Petition disposed of.
(1) S.Parvathi; (2) Muthukumar; (3) M.Gunaseeli vs (1) Collector, Chennai District, Singaravelar Maligai, Chennai; (2) District Revenue Officer, Singaravelar Maligai, Chennai; (3) J.Inder Chand Nahar  [MADRAS HIGH COURT, 07 Jul 2008]
Revenue Standing Order 31(8)(A); Tamil Nadu Patta Pass Book Act, 1986 - Whether District Revenue Officer is the competent authority to proceed with the enquiry regarding cancellation of patta? - Held, under Standing Order 31(8), against the orders of the Tahsildar, the affected person may file an appeal to the Revenue Divisional Officer or the Collector, since there is no Revenue Divisional Officer in Chennai District Revenue Unit, the District Revenue Officer is the appellate authority to receive the appeal from the affected person - Either under the Revenue Standing Orders or under the TNPPBA, 1986, the appropriate authority to decide against the order of the Tahsildar is the District Revenue Officer as far as Chennai District is concerned - Petitions dismissed.
R.Ganesan vs (1) Arunachalam; (2) United India Insurance Company Limited, Represented By Its Manager, Thoothukudi  [MADRAS HIGH COURT, 07 Jul 2008]
Whether Tribunal was justified in awarding a sum of Rs.13, 000/- for the injury and disability sustained by holding that the assessment of the disability at 60% by doctor, was on the higher side? - Held, Tribunal on a vacuum and void, cannot substitute its views to that of the Doctor (an expert) and determine the compensation amount - Tribunal cannot determine the compensation of Rs.13, 000/- unilaterally in regard to the injury and disability sustained by the appellant/claimant ignoring the medical practitioner's evidence and certificate - Appeal allowed.
(1) City Theatres Private Limited, Represented By Its Managing Director, S.Subramaniam, Karthikeyan (Alias) Mani; (2) S.Subramaniam Karthikeyan vs Sureshkumar G.Nichani  [MADRAS HIGH COURT, 07 Jul 2008]
Code of Civil Procedure, 1908, s. 34 - Appeal to challenge order directing the defendants/appellants to pay the principal amount together with interest at 24% per annum and further interest at 24% per annum on Rs.30, 000/- and holding that suit was not barred by limitation - Defendants submitted that the amount of Rs 30, 000 advanced by the plaintiff was not a loan and hence they were not liable to pay any interest towards the same - Held, though the defendants have pleaded so, they have no proof to that effect, as such they have failed to establish the same before the Trial Court with proper material documents - As per the provisions u/s. 34 of the CPC, 1908 further interest modified to 12 % per annum and 6% per annum on the principal amount - Appeal disposed of.
(1) P.Mahalingam; (2) Usha Mahalingam vs (1) Registrar of Documents, Registration Office, Thirumangalam, Madurai; (2) Sub Registrar of Documents, Registration Office, Thirumangalam, Madurai; (3) District Registrar (Registration), Madurai; (4) Tamil Nadu Government Industries and Commerce Department, Represented By Its Director of Industries and Commerce, Chepauk, Chennai  [MADRAS HIGH COURT, 07 Jul 2008]
Indian Stamp Act, 1899, s. 47(A)(1) - Whether valuation of the properties has to be taken as on the date of allotment of plots or at the time when the sale deeds executed and presented for registration? - Held, execution means signature; signature made by the executant for the purpose of sale is at time when the stamp duty is attracted; mere allotment of plots by the third respondent Government subject to certain conditions cannot be termed as conveyance or sale - It is not mere payment of price alone or delivery of possession that completes the conveyance but it is the intention of the parties to transfer ownership from vendor to the purchaser that completes the sale, therefore, by applying s. 17 of the Indian Stamp Act, the stamp duty attracted in respect of these documents can be only at the time of execution of the sale deed and not at the time of allotment of plots - Intention of the party in deliberate suppression itself is not a ground for invoking the jurisdiction of the registering authority u/s. 47-A(1) of the ISA, 1899 - Petitions disposed of.
A.Gunasekaran vs K.Damayanthi  [MADRAS HIGH COURT, 07 Jul 2008]
Whether time was the essence of contract where as per the said agreement, the sale had to be completed before the end of the Tamil month 'Aavani' 1987 by paying the balance sale consideration? - To pay the balance amount respondent had sent a notice to appellant much before appellant sent notice to her - Held, when a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract - It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time; an intention to make time the essence of the contract must be expressed in unequivocal language - Appeal dismissed.
F.Sheik Hussain vs Faridha Banu  [MADRAS HIGH COURT, 04 Jul 2008]
Muslim Women (Protection of Rights on Divorce) Act, 1986; Code of Criminal Procedure, 1973, s. 125 - Whether divorced muslim woman is entitled to maintenance from the husband only for the three Iddat periods or more? - Constitution Bench of Apex Court in the case of Danial Latifi and Anr. v. Union of India held that a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well, such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3 (i)(a) of the Act and liability of the Muslim husband to his divorced wife arising under Section 3(i)(a) of the Act to pay maintenance is not confined to the iddat period - Petition filed by muslim women u/s. 125 of CrPC, 1973 is maintainable - Petition dismissed.
Naseer vs (1) Balaji; (2) Suresh  [MADRAS HIGH COURT, 04 Jul 2008]
Negotiable Instruments Act, 1881, s. 138; Code of Criminal Procedure, 1973, s. 178 - Whether court situated on a place from where the legal notice has been issued will have territorial jurisdiction in a complaint filed u/s. 138 of NI Act, 1881? - Apex Court has pointed out that complainant can choose any one of those Courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done viz., drawing of the cheque, presentation of the cheque to the bank, returning the cheque unpaid by the drawee bank, giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, failure of the drawer to make payment within 15 days of the receipt of the notice - Held, decision of the Apex Court covers the issue that arises for consideration - Merely because the parties to the criminal complaint lodged by the respondents will be put to hardship, that cannot be a ground for quashing the proceedings but it may be a good ground to seek transfer of the cases to some other competent Court which will be convenient for the parties to attend - Petition dismissed.


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