Ajay Singh
Advocate

1. Deficiency in Service by Bank : Consumer Protection Act, sec. 2(1)(g)

Amount deposited by a customer in PPF account in excess of ceiling prescribed in the scheme. The Bank refused to pay interest on the excess deposits made in PPF account.

The Hon’ble Commission, Delhi held that once bank accepted the deposit made in excess of ceiling prescribed, it would be liable to pay interest on such deposit. Non payment of interest would amount to deficiency in service by the bank.

State Bank of India vs. B.V. Ramana Murthy AIR 2008 NOC 394 (NCC)

2. Domestic enquiries

The Respondent workman was show caused for various acts of misconduct. Domestic enquiry was conducted and the workman was represented by a defence representative of the union. The Enquiry Officer has submitted report stating that the charge levelled against the workman are proved and he was later dismissed from the service. The workman appealed before the Labour Court stating that the enquiry conducted was not proper and fair because the enquiry was not conducted in the language know to him. The labour court accepted his contention and set aside the dismissal on the ground that enquiry was not proper and fair and against the principle of natural justice.

On further appeal it was observed that where the workman is represented by a defence representative who is well versed in the English language it could not be said that a workman has been prejudiced by recording the enquiry proceedings in English. Secondly the defence representative is expected to take care of the interests of the workman he defends at the enquiry. If the enquiry officer does not perform his duty of explaining the contents of the enquiry proceedings which are recorded by him, it is expected by the defence representative to explain the contents of the same to the delinquent workman.

In the facts of the present case, the workman was present at the domestic enquiry throughout and he was also represented by a defence representative who was well versed in English who by his conduct had agreed that the proceedings of the enquiry could be conducted in English. There was no word of protest from the defence representative or the workman against the procedure adopted at the enquiry. Therefore, it cannot be said that the workman had been caused any prejudice by recording the statements and the testimony of the witnesses in English.

Relying on the judgments in the case of K.L. Tripathi vs. State Bank of India AIR 1984 SC 273 and in the case of P.D. Agrawal vs. State Bank of India (2006) 8 SCC 776 it was observed that before a domestic enquiry is set aside, the workman must plead and prove prejudice. In the present case, there is no dispute that the recording of the enquiry proceedings was done in the English language. However, there was no material on record to indicate that this had caused any prejudice to the workman.

M/s. Advani Oerlikon Ltd vs. Shashikant M. Sable & Anr (2007) Vol 109 (4) Bom L.R. 2751

3. Res Judicata – Tax matters

In the present case, in earlier litigation, the court had considered the evidence of Quality control Manager who was described as “expert” on the point and accepting his evidence, the court held that the goods imported by the company were ferrous in nature and not non ferrous and the company was right in paying octroi under item 71. It was thus a “fundamental factor” and the nature of goods imported by the company was directly and substantially in issue, on the basis of which the decision was taken. The Hon’ble Supreme Court observed that In taxation matters, the strict rule of res judicata as envisaged by section 11, CPC 1908 has no application. As a general rule, each year assessment is final only for that year and does not govern later years, because it determines the tax for a particular period.

The Hon’ble Supreme Court further observed that in facts of present case it was not possible to hold that the earlier decision would not continue to operate in subsequent years unless it is shown that there are changed circumstances or the goods imported by the company in subsequent years was different than the one which was imported earlier and in respect of which decision had been arrived at by the court. Therefore, it was held that the Revisional Court as well as the High Court were right in giving benefit of the decision in the earlier litigation to the respondent company.

The Hon’ble Supreme Court in para 24 of the order approved the following observation of Ranganath Misra C.J. in Radhasoami Satsang vs. CIT 193 ITR 321 (SC)

“16. We are aware of the fact that strictly speaking res judicata does not apply to income tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year”.

Municipal Corpn. of City of Thane vs. Vidyot Metallics Ltd & Anr. (2007) 8 SCC 688

4. Insufficiently stamped Document: Admissibility in evidence

The mortgage deed is a document which has to be compulsorily registered under sec. 17 of the Registration Act. Yet, the said deed could be admitted in evidence to establish possession only if the same is properly stamped.

Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence, the trial court can make a note of such objection and mark the objected documents tentatively as an exhibit in the case subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable, the judge or magistrate can keep such evidence excluded from consideration. However, if the objection relates to deficiency of stamp duty of a document, the court has to decide the objection before proceeding further. For all other objections, the procedure suggested above, can be followed.

Therefore, the trial court should consider whether the documents require stamp duty and penalty or not, before allowing the documents to be admitted, in evidence, for collateral purposes, which must be followed.

Thus it is now settled that no document shall be admitted in evidence if it is not properly stamped, and if not stamped, then stamp duty should be paid with penalty as prescribed by the authority.

Jagadeesh vs. B.M. Billan AIR 2007 Madras 334

5. Writ maintainable against show cause notice which is issued either without jurisdiction or in an abuse of process of law

The Respondent had challenged the show cause notice issued by the Commissioner of Customs and Central Excise, on the ground that the Commissioner was seeking to re-open and re-litigate the issues which have been finally concluded by the decision of the High Court and the Supreme Court in favour of the Petitioner and, therefore, the said show cause notice was without jurisdiction and had been issued in arbitrary exercise of power and that it is an abuse of process of law.

The Hon’ble Court observed that the case of the Respondent in respect of classification of the products had attained finality pursuant to the decision of this Court, therefore the appellants have no jurisdiction to issue impugned show cause notice on the ground on which it has been issued and it virtually amounts to re-opening of the issue which stands concluded by the decision of this Court, and that, it is also an abuse of process of law.

The impugned show cause notice was nothing but a repetition of the earlier show cause notices with slight variations

which in no way was relatable to any different test.

The Hon’ble Court held that where a Show Cause Notice is issued either without jurisdiction or in an abuse of process of law, certainly in that case, the writ court would not hesitate to interfere even at the stage of issuance of show cause notice. The interference at the show cause notice stage should be rare and not in a routine manner. Mere assertion by the petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out.

In view of the above legal principle the appeal of the department was dismissed.

UOI & Anr vs. Vicco Laboratories (2007) Vol 109 (4) BLR 35 (SC)