Applicability of foreign law in domestic arbitration
TDM Infrastructure Private Limited Vs. UE Development India Private Limited (Decided On 14.05.2008)
Companies incorporated under the Companies Act, 1956 - Disputes arose between the two and due to subsequent failure in appointing common arbitrator one party approached the Supreme Court seeking appointment of an arbitrator by virtue of Section 11(5) and 11(9) of the Arbitration Act, 1996. Question that arose for consideration was whether an agreement falls within the purview of Section 2(1)(f) of the 1996 Act
The intention of the legislature appears to be clear that Indian nationals should not be permitted to derogate from Indian law. This is part of the public policy of the country.
Once it is held that both the companies are incorporated in India, and, thus, they have been domiciled in India, the arbitration agreement entered into by and between them would not be an international commercial arbitration agreement and, the question of applicability of Clause (iii) of Section 2(1)(f) would not arise.
The Chief Justice of India or his designate, furthermore, having regard to Sub-section (9) of Section 11 of the 1996 Act must bear in mind the nationality of an arbitrator. The nationality of the arbitrator may have to be kept in mind having regard to the nationality of the respective parties.
However, wherever a body corporate, which needs not necessarily be a Company registered and incorporated under the Companies Act, as for example, an association or a body of individuals, the exercise of central management and control in any country other than India may have to be taken into consideration.
When both the companies are incorporated in India, Clause (ii) of Section 2(1)(f) will apply and not the Clause (iii) thereof. Analysis
Swami Shankaranand (D) by
L.R. v. Mahant Sri Sadguru Sarnanand Etc. and Ors. (Decided On: 27.05.2008)
Whether a disciple attached to a Mahant in one of the establishments run by a Religious Trust has a locus standi to move an appeal from the order of the District Judge allowing an application filed by the Trust under Section 92(1)(f) of the Code of Civil Procedure, 1908
Section 92 of the Code provides for special power of the District Judge in regard to Public Trusts both charitable and religious. An application for sale of the Trust property must be filed before the District Judge and only on his approval the same can be affected. In a case of this nature judiciary exercises the jurisdiction of parens patriae and, thus, when an objection is filed for grant of sanction in terms of Section 92(1)(f) of the Code, the same should receive serious consideration. It cannot be said that no person being a third party to the application, would not be a 'person aggrieved', if the Appellant establishes that he is otherwise interested in the welfare of the Trust. Further, even though a person is not a party to the proceedings before the lower Court if in a case a person's right to obtain compensation may be defeated by a judgment passed in a connected matter, he would have a right of appeal. Hence, it cannot be said that a person who was not a party to the proceedings cannot prefer an appeal.
Regional Provident Fund Commissioner v. Bhavani (Decided On: 22.04.2008)
Whether Consumer Protection Act, 1986 is applicable to members of EPF scheme
Consumer Protection Act is applicable to EPF scheme as every employee by becoming a member of the Employees' Family Pension Scheme, 1971 would come within the sweep of 'consumer' under Section 2(1)(d)(ii) and the Scheme was a "service" under Section 2(1)(o) as it is a service giver to all its members. Further, the Regional Provident Fund Commissioner must be held as a 'service giver' within the meaning of Section 2(1)(o). Hence, if there is any deficiency in service provided under the EPF scheme it can be challenged under Consumer Protection Act.
Ponds India Ltd. (Merged with
H.L. Ltd.) vs. Commissioner of Trade Tax, Lucknow (Decided on 16.05.2008)
Whether petroleum jelly is a `drug' or a `cosmetic' within the meaning of the provisions of
U.P. Trade Tax Act, 1948 - Assessment years 1990-91, 1991-92, 1992-93 - 1989
If an entry had been interpreted consistently in a particular manner for several assessment years, ordinarily it would not be permissible for the Revenue to depart therefrom, unless there is any material change. As per Rule 123 of Central Excise Rules, white Jelly IP (non-perfumed) is a drug. The Act and the Rules framed thereunder do not provide that non-perfumed white jelly IP would also be a cosmetic. Cosmetic ordinarily would contain some perfume. Commercial meaning test or the meaning in common parlance test is necessarily to be applied. In any event having regard to the definition of drugs, any product which prevents a disorder of human function would also come within the purview of drug.'
Deepak Agro Solution Ltd. vs. Commissioner of Customs, Maharashtra (Decided on 08.05.2008)
Classification of "Brimstone 90" - Whether "Brimstone 90" contains about 90 per cent of Sulphur and 10 per cent of Bentonite by way of inert filler, used for agricultural purposes classifiable under Chapter Heading 25.03 or under chapter 38.08 of the Customs Tariff Act, 1975
Entry 2503, speaks of Sulphur of all kinds other than those, which are specifically mentioned therein. Moreover, Sulphur does not find place in Chapter 38, which deals with agricultural operation. Since the reference was in regard to the applicability of sub-heading 2503 and/or 3808 30 40, the Tribunal's opinion that it would come within sub-heading. 3808 90 is impermissible in law
Intellectual Property Rights
Entertainment Network (India) Ltd. vs. Super Cassette Industries Ltd. (Decided on: 16.05.2008)
Whether the Copyright Board has jurisdiction under Section 31 to direct the owner of a copyright in any Indian work or a registered copyright society to issue compulsory licenses to broadcast such works when such work is available to public through radio broadcast
By virtue of Section 31 (1)(b) if the owner of copyright refuses to allow communication to the public a sound recording on terms which complainant considers reasonable then a complaint to the board made in this regard for issuance of compulsory license is maintainable as it has jurisdiction to deal with the same. But if it is accepted that voluntary licenses have been entered into by the owners with certain Radio Broadcasters, then Copyright Board can very well deny others compulsory licence. Further it cannot be said that once compulsory license is granted in respect of a sound recording Board loses its significance for all time to come. Complainant can approach the Board and an application of grant of compulsory licence can be entertained if there is any unreasonableness in the terms imposed by the copyright owner.
Whether compulsory license can be issued to more than one broadcaster in the light of Section 31(2)
In view of Section 31 (2) compulsory licenses could be granted to more than one broadcasters. If a compulsory licence is granted only once covering every single part of the country, the same cannot be lead to a conclusion that no other person can approach the Board. Section 31(1)(b) in fact does not create an entitlement in favour of an individual broadcaster. Individual broadcasters have a right to approach the Board when it considers that the terms of offer for grant of license are unreasonable. Hence, grant of licence cannot be said to be limited to one person. Further, a licence may be granted for a limited period. So there is always a chance for other person to make an application for licence. Hence, if Section 31 (2) is read literally it will lead to an anomalous situation and hence it has to be given a purposive interpretation. Giving a purposive construction it can be stated that compulsory license can be issued to more than one broadcaster after proper consideration of each case.
Kabushiki Kaisha Toshiba v. TOSIBA Appliances Co. and Ors. (Decided on: 16.05.2008)
Whether the Register has discretionary power under Section 46 and 56 while deciding a application for rectification of trademark
Section 46(1) confers a discretionary jurisdiction on the Registrar. Once it is found that the application is filed by a person aggrieved in the prescribed manner, the grounds which would be available to the Registrar for exercise of its discretionary jurisdiction are stated in Clauses (a) and (b) of Section 46 (1). Clauses (a) and (b) are disjunctive and not cumulative. Recourse may be taken to either of them or both of them. A combined application even under Section 46 and 56 of the Act is permissible in law as apart from Section 46, power of rectification and correction of register is contained in Section 56 also. If a composite application is preferred under Section 46 and 56 then Registrar exercising its discretionary jurisdiction under Section 46 without exercising the jurisdiction under Section 56.
Section 46 (1)(a) and (b) of Trade and Merchandise Marks Act, 1958 -Distinction amongst the provisions
Section 46 (1)(a) covers a situation where registration has been obtained without any bona fide intention on the part of the registrant to use it and there is no bona fide use. Clause (b) of Section 46(1) applies where for a continuous period of five years or longer, there has been no bona fide use. An exception to Clause (b) is created by Section 46(3). Under Section 46(3), if there are any special circumstances for non-use of trademark and there is no intention to abandon or use the trademark it will not amount to non-use for the purpose of clause (b).
Delhi High Court
Kurup Engineering Company Pvt. Ltd. Vs. Bharat Heavy Electricals Limited and Ors. (Decided on 06.05.2008) MANU/DE/0760/2008
Sole arbitrator failing to act without undue delay - Termination of mandate sought alongwith appointment of substitute arbitrator under the provisions of sections 14 and 15 of the Arbitration and Conciliation Act, 1996
Mandate of an arbitrator would be terminated if he fails to act without undue delay. By virtue of Section 14(2) of the Act, if there is a controversy with regard to this, a party may, unless otherwise agreed by the parties, apply to the court to decide on the termination of the mandate. In the instant case on numerous occasions dates were been fixed and cancelled unilaterally by the arbitrator clearly demonstrate that the said arbitrator has failed to act without undue delay. The whole purpose of arbitration is to provide a quick remedy to the parties to have their disputes adjudicated upon, the objective which was completely obviated by the manner in which the proceedings were conducted
Intellectual Property Rights
Delhi High Court
Schreder S.A and Anr. Vs. Twinkle Luminaries Pvt. Ltd. (Decided on 06.05.2008) MANU/DE/0756/2008
Infringement and sale of identical design - defence of prior publication of the design - Whether the defence of validity of registration can be taken in infringement case of a design?
Taking the reference of the case of Metro Plastic Industries (Regd.) v. Galaxy Footwear, New Delhi 2000, it was held that Section 51-A provides for cancellation of registration on certain grounds. Once an Application for cancellation of registration has been made or filed then the validity of registration itself has been questioned. The defence of prior publication can only be taken in a suit filed under Section 53 of the said Act, when the defendant has already moved an application under Section 51A of the said Act seeking cancellation of the registered design.
Whether design used by the defendant is an imitation of plaintiff's design and accountable for piracy of a registered design?
Defendant could not provide any evidence against plaintiff and could not proof registration of the used by him so the suit is decreed in favour of the plaintiffs.
Delhi High Court
Delhi Metro Rail Corporation Limited Vs. Municipal Corporation of Delhi and Ors. (Decided on 07.05.2008) MANU/DE/0748/2008
Definitions of railways - Whether Delhi Metro Rail Corporation Limited falls under the definition of "railways" within expression "railways administration"?
The meaning of "railway administration" includes both Government as well as Non-Government Railway and exemption granted under Section 184 of 1989 Act will apply to both Governmental Railway as well as Non-Governmental Railway. As earlier agreed and held by Supreme Court in a judgment that Railways means carriage of passengers and goods on iron rails, so the petitioner qualifies and is a Railway within the meaning of Section 2(31) of the 1989 Act as the petitioner s engaged in transportation of passenger on rails.
Delhi High Court
Delhi Metro Rail Corporation Limited Vs. Municipal Corporation of Delhi and Ors. (Decided on 07.05.2008) MANU/DE/0748/2008
Whether Delhi Metro Rail Corporation Limited liable to pay property tax and other taxes under the Section 184 of the Delhi Municipal Corporation Act, 1957.
The respondent can tax under the Delhi Municipal Corporation Act, 1957 all the assets and properties, which do not fall and are not "Railways" within the meaning of Section 2 (31) of the 1989 Act and anything which falls within the definition of term "Railway" cannot be taxed by the respondent under the Delhi Municipal Corporation Act, 1957 in view of Section 184 of the 1989 Act. So, the petitioner is not liable to pay municipal taxes under the Section 184 of the Delhi Municipal Corporation Act, 1957.
Gujarat High Court
Voltamp Transfomers Ltd. Vs. Commissioner of Income Tax (Decided on 30.04.2008) MANU/GJ/0281/2008
Valuation of transformers - Whether the Hon'ble Tribunal has erred in law and on the facts and failed to appreciate the circumstances prevailing on the valuation date for the purpose of valuation of two transformers ordered by Punjab State Electricity Board having regard to the material on record and thereby erred in holding the manner in which the company valued the closing stock of two transformers, and that such market value is not justified?
The Tribunal has committed an error in law and missed the point that it would be wrong to assume that the valuation of the closing stock at market rate has the bringing into charge any appreciation in the value of such stock. As said by the apex court the true purpose of crediting the value of unsold stock is to balance the cost of those goods and not for working out any profit on the basis of such valuation. Determination of the trading profits of the accounting period is done to ensure the expenses which have really been incurred in the production of goods which have remained unsold at the end of the year and then they are squared off to reflect the correct trading profits of the goods which have been sold during the year, so the valuation of unsold stock at the close of accounting period is a necessary requirement of commercial accounting.
Change of method valuating closing stock - Whether it is permissible to change the method of accounting under the guise of substituting the value of closing stock?
The Assessing officer or taxing authority can disturb the valuation on the closing stock by modifying the cost or the market value, which is adopted by the assessee on the basis of facts and evidence on record after recording a clear cut finding that the value adopted by the assessee does not reflect either correct cost or correct market price. But when the assessee has chosen one of the valuations, the Authority cannot discard the same and impose other one.
Rajasthan High Court
Pukhraj Shishodia Murlidhar and Party and Rajendra Kumar v. The State of Rajasthan and Ors. (Decided On: 14.03.2008) MANU/RH/0148/2008
Demand of extra exclusive privilege price by Excise Department for additional shops sanctioned to the petitioners - Whether these shops are 'additional' or not or whether they are in 'substitution' of existing shops on account of 'transfer or relocation'
Excise Department cannot be held to be justified in demanding additional exclusive privilege price for re-location or transfer of shops from one place to another in same city for which the petitioner was authorised to operate such shops without any additional increase in total number of shops because the object of levy of additional exclusive privilege price is only for such additional shops beyond the number of shops for which the licences have already been given to the petitioner against the privilege price already paid by him and not for the transfer or relocation.
Bombay High Court
Navnath S/o Kashinathappa Biradar and Ors. V. The State of Maharashtra and Ors. ( Decided On: 06.05.2008) MANU/MH/0410/2008
Challenge to the acquisition proceedings - Whether the petition challenging proceedings of acquisition after the declaration of award maintainable.
As held by the Apex court, writ petition challenging the acquisition proceedings on the basis that there has been non compliance and violation at the intermediary stages of the acquisition,long after passing of the Award and vesting of the land in the State was not maintainable.
Regarding issuance of declaration under Section 6 of Land Acquisition Act, it is held by the Apex Court that,it is not the publication of the declaration under Section 6 but the issuance of the declaration which is the material event.
Patna High Court
Surendra Prasad Choudhary v. The State of Bihar and Ors. ( Decided On: 27.03.2008)
Intervention of court is sought by a police constable against the order of departmental inquiry on the grounds of bias - Whether the court can interfere with the order of departmental inquiry
As held by apex court in Union of India and Ors. v. Dwarka Prasad Tiwari that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. The scope of juridical review is limited to the deficiency in decision-making process and not the decision. The Supreme Court held that the Courts would not take such matters lightly particularly when it relates to a uniformed force. Indiscipline therein, if it goes unpunished, will vitally affect the discipline of the force.
Allahabad High Court
Tarun Kumar son of Shri Jai Pal Singh v. State of Uttar Pradesh through Principal Secretary, Higher Education, Uttar Pradesh Shashan, Director, Higher Education Uttar Pradesh and Dayanand Shiksha Sansthan through its Secretary (Decided On: 05.03.2008) MANU/UP/0336/2008
Applicability of Article 23 of the Constitution of India in the matter of employment of teachers by Government Order in colleges on mearge salary - Whether payment of less salary to the teachers appointed on per lecture basis than the teachers appointed on full time basis came under 'begar' as per Article 23 of the Constitution of India
Engagement of the petitioners cannot be termed as a 'begar' as the petitioners were not appointed on the full time basis and their remuneration is fixed on per lecture basis. There is no obligation upon such person to remain on job after he has delivered the particular lecture as assigned to him by the authority concerned. The petitioner if feel exploited, is at liberty to approach the Civil Court for damages against the management of the college. However, he cannot be permitted to have any claim against the public exchequer.
First Information Report
Allahabad High Court
Udham Singh S/o Kamal Singh and Ranjeet Yadav S/o Gajraj v. State of U.P. through the Secretary (Home), The Senior Superintendent of Police and Station House Officer (Decided On: 26.03.2008)
Writ for quashing the FIR - Whether registration of FIR Sine qua non to book a criminal under the U.P. Gangster Act and Anti Social Activities (Prevention) Act 1986
Sections 2(b) and (c) of the U.P. Gangster Act and Anti Social Activities (Prevention) Act 1986,does not require the FIR to be registered against the gangster before he is booked under the Act. Sine qua non to prosecute an individual under the Act is commission of an offence as a "gangster". Gang means a group of persons, who acting either signally or collectively, by violence, or threat or show violence or intimidation, or coercion or other wise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person, indulge in anti social activities. It is not the requirement of law that no body can be prosecuted under the Act if no FIR is registered against him. It is the activity of an individual, which is the determinative factor for bringing him under the mischief of the Act and nothing else.
Whether on the basis of the single incident offence can be made under Gangster's Act
Gangster's Act was necessitated with a view to control gangsterism and anti social activities of the Gangster. The vires of the Act has been up held by a Full Bench of this Court in Ashok Kumar Dixit v. State of U.P and Anr. 1987 (24) ACC 164. There need not be any overt of positive act of the person intended to be apprehended at the place. It is enough to prove active complicity, which has a bearing on the crime. It is open to be punished even for a single act, if it is covered by the requirements of law
Jurisdiction of Court - Trial under special enactment
Madhya Pradesh High Court
State of M.P. vs. Radhakrishna son of Ranglal Dubey, Malkhan S/o Rajaram Kachhi and Sagreev Singh S/o Bhuresingh Kushwaha (Decided on 17.04.2008) - MANU/MP/0115/2008
Determination of Jurisdiction - Reference made by the Special Judge of Special Court under the M.P. Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981, under Section 395(2) of the Code of Criminal Procedure, 1973 on the question that where a Special Court constituted under the Adhiniyam and another Special Court has been constituted under the Scheduled Castes/ Scheduled Tribes (Prevention of Atrocities) Act, 1989 and only one charge-sheet is filed for the trial of the offences under the Adhiniyam and the Act, then which Court has jurisdiction to try the case
Where two Special Courts have been constituted by the Government for the trial of offences punishable under different Acts and these Special Courts have no power to try the offences of other Act in view of the provisions of those Acts or the notifications issued, the Special Court constituted under one Act for the purposes of trial of offences of that Act, cannot try the cases of other Acts for which, other Special Court has been constituted. At the most, the Special Court where the charge-sheet is filed, can try the offences punishable under the Adhiniyam for which the Special Court is constituted vide notification issued by the State Government but the same Special Court cannot try the cases punishable under the Act.
Andhra Pradesh High Court
Alli Iylaiah vs. Alli Rajalaxmi and Ors. (Decided on 11.04.2008) - MANU/AP/0090/2008
Condonation of delay - Exclusion of time in certain cases - Interpretation of Section 15 of the Limitation Act, 1963
Section 5 of the Act does not apply to the filing of suits and the execution applications. Therefore, the question of condonation of delay does not arise. It is only when the circumstances mentioned in Section 15 are proved, that the plaintiff or the decree-holder, as the case may be, can avail the benefit of exclusion of the time during which, he was incapacitated from instituting the said proceedings. From a bare reading of the provision, one would gain an impression, that the benefit under Section 15 of the Act can be extended only when the institution of the suit or execution petition, has been stayed through an injunction or order, for the corresponding period. In other words, the stay or order must incapacitate the concerned party from instituting the proceedings.