Juvenile Justice (Care and Protection of Children) Act, 2000
Vimal Chadha Vs.Vikas Choudhary and Anr. (Decided On: 27.05.2008)
Determination of age of a juvenile in delinquency within the meaning of the Juvenile Justice (Care and Protection of Children) Act, 2000
Determination of age of a "juvenile in delinquency" must be determined as and when an application is filed. In view of the decision of the Constitution Bench in Pratap Singh v. State of Jharkhand it is no longer res integra that that the relevant date for determination is the age of the accused would be the date on which the occurrence took place. What would be the date on which offence has been committed in a given case has to be decided having regard to the fact situation obtaining therein. If an offence has been a continuing offence, then the age of the juvenile in delinquency should be determined with reference to the date on which the offence is said to have been committed by the accused.
Yunus Ali (Dead) through his L.Rs. Vs.Khursheed Akram (Decided on 28.05.2008)
Re-appreciation of evidence in Revisional Jurisdiction - Power of High Court under section 115 of the Code of Civil Procedure, 1908 - Finding of the Trial Court and First Appellate Court pertained to determination of provisional rent under Section 13(3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 for the shop in question
In law it is a position well settled that under Section 115 of the Code of Civil Procedure the High Court cannot re- appreciate the evidence and cannot set aside the concurrent findings of the Courts below by taking a different view of the evidence. The High Court is empowered only to interfere with the findings of fact if the findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the courts below. Simply because another view of the evidence may be taken is no ground by the High Court to interfere in its revisional jurisdiction. The High Court in the instant case acted in exercise of its jurisdiction with material irregularity to interfere with the well-merited concurrent findings and reasoning recorded by two Courts below. The High Court, with respect to it, has lost sight of the important fact that it was provisional determination of the amount of rent by the trial court and the eviction suit is still pending before it for final decision.
Intellectual Property Rights
Khoday Distilleries Limited (Now known as Khoday India Limited) v. The Scotch Whisky Association and Ors. (Decided On: 27.05.2008)
Rectification application for trade mark - Whether the delay in filing the application for rectification of trademark would amount to acquiescence and/or waiver?
Acquiescence is a facet of delay. Principle of acquiescence would apply where, sitting by or allowing another to invade the rights and spending money on it and if there is a course of conduct inconsistent with the claim for exclusive rights for trade mark, trade name, etc. If the Plaintiff stood by knowingly and let the Defendants build up an important trade until it had become necessary to crush it, then the Plaintiffs would be stopped by their acquiescence. If the acquiescence in the infringement amounts to consent, it will be a complete defence. And delay would be a valid defence where it has caused a change in the subject matter and action or brought about a situation in which justice cannot be done. Hence, the delay in filing the application for rectification of trademark would amount to acquiescence and/or waiver.
Deceptive similarity - Relevant considerations - Section 11 of the Trade and Merchandise Marks Act, 1958 -- What are the relevant considerations that has to be taken to form an opinion that an impugned Trademark is deceptive or confusing?
Tests of deceptive similarity, required to be applied in each case would be different. Nature and kind of customers who would likely to buy goods and when and how a person would likely to be confused are relevant considerations. Where the class of buyers is quite educated and rich, the test to be applied is different from the one where the product would be purchased by the villagers, illiterate and poor. When, the product is to be purchased both by villagers and town people, the test of a prudent man would necessary be applied. Further, the tests which are to be applied in a country like India is different from the tests either in a country of England, United Sates of America or Australia.
Electricity (Supply) Act, 1948
Kusumam Hotels (P) Ltd. v. Kerala State Electricity Board and Ors. (Decided On: 16.05.2008)
Tariff Concession - Whether the policy decision, which granted tariff concession to certain class of hotels, could be taken away with
retrospective effect by a Government Order
A policy decision can be reviewed from time to time and the concessions granted can be withdrawn in public interest. State is entitled to change or alter the economic policies. And Board would be bound by any direction issued by the State Government on questions of policy. When a policy decision is required to be given a retrospective operation, it must be stated so expressly or by necessary implication. State could not take a unilateral decision to take away the accrued or vested right. Further, 1948 Act does not authorize the State to issue a direction with retrospective effect. Board could only give prospective effect to such directions in absence of any clear indication. Hence, the tariff concession granted in favour of certain class of hotels could not be taken away with retrospective effect by the State.
Recovery of Debts Due to Banks and Financial Institutions Act, 1993
Bank of India vs. Ketan Parekh and Ors. (Decided On: 16.05.2008)
Discharge of liability -- Securities of notified person -- Jurisdiction of Special Court vis-à-vis Debt Recovery Tribunal -- Special Courts (Trial of Offences Relating to Transactions in Securities) Act,1992 -- Recovery of Debts Due to Banks and Financial Institutions Act, 1993 -- Whether the Debt Recovery Tribunal has jurisdiction under Recovery of Debts Due to Banks and Financial Institutions Act, 1993 to grant a declaration that the properties of a notified person under Securities Act,1992 stood discharged -- Whether financial institution would have to move the Special Court in respect of the property attached
Section 9A which has come subsequently in the Act of 1992 i.e. on 25.1.1994 has overriding effect over the Act of 1993 which is a general statute to expedite the recovery of the debts due to the banks and financial institutions. Hence, whatever dues are due to the Banks or the Financial Institutions can be claimed under Section 11(2) of the Act of 1992 which specially empowers that the liabilities can be adjusted out of the securities of the person notified in the manner provided under Section 11(2)(b). Hence, the Bank can certainly make an application before the Special Court under Section 11(2)(b) of the Act of 1992 for discharge of their liabilities against the securities of the notified person.
Special Marriage Act
High Court of Bombay
Mr. Jinu P. Philip Vs. Annie
Varghese W/o Mr. Jinu P. Philip (Decided On: 02.05.2008) MANU/MH/0416/2008
Scope of Decree of conjugal rights under Special Marriage Act, 1954 -Whether consummation of marriage is sin quo non for a decree of restitution of conjugal rights under Section 22 of the Special Marriage Act, 1954
Concise Oxford Dictionary, Ninth Edition defines Conjugal rights as those rights regarded as exercisable in law by each partner in a marriage. Apex court in Smt. Saraj Rani v. Sudarshan Kumar Chadha uphold the constitutional validity of Section 9 of the Hindu Marriage Act, 1955 and held that it must be borne in mind that in India conjugal right i.e. right of the husband or the wife to the society of the other spouse is not merely a creature of the statute but conjugal rights are inherent in a marriage and comes into existence the moment the two tie the knot. The husband and wife are in law entitled to each other's society. If for any reason the husband and the wife do not stay together from the day of the marriage, this right does not cease to exist. The present court held that Section 9 of Hindu Marriage Act, 1955 is in pari materia with Section 22 of the Special Marriage Act, 1954 and thus even if the parties do not live together or the marriage is not consummated, a decree for restitution of conjugal rights can be passed by the court.
The High Court of Delhi
Govind Prajapati Vs. Union of India (UOI) and Ors. ( Decided On: 24.04.2008) MANU/DE/0804/2008
Judicial review -Whether a Central Administrative tribunal or court under writ jurisdiction can proceed with the judicial review of he charges framed in a disciplinary inquiry
It is well settled that in the case of charges framed in a disciplinary inquiry, a Tribunal or Court can interfere only if on the charges framed read with imputation of charges, misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to law. At the stage of issuance of the charge sheet, the Tribunal or Court has no jurisdiction to go into the correctness or the veracity of the charges. The Tribunal or Court cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed even after the conclusion of the disciplinary proceedings, if the matter comes to Court or Tribunal, they have no jurisdiction to reappraise the evidence or substitute the findings of fact recorded by the disciplinary authority by their own.
Apex court in Union of India v. Kunisetty Satyanarayana (2006) 12 SCC 28,held that writ petition should not be entertained against a mere show-cause notice or charge sheet. At that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so.
The High Court
Satish Nambiar Vs. Union of India (UOI) and Anr. ( Decided On: 16.05.2008) MANU/DE/0800/2008
Binding nature of the order by the writ court-Whether an order passed by a writ court can be said to have been effaced by a subsequent order passed by the competent authority in exercise of its powers of review under Section 15A of the Citizenship Act
No, the order passed by the competent authority in review under Section 15A of the Citizenship Act cannot affect the efficacy of the adjudication by a competent court nor does the order in review give to the petitioner a fresh cause of action to challenge the original order the validity whereof is already upheld. The subsequent order passed by the competent authority in exercise of its powers under review under Section 15A of the Act does not affect the binding nature of the said judgment, leave alone efface the judgment itself.
Labour and Industrial
The High Court
Delhi Transport Corporation Vs. Ek Lakh Hussain (Decided On: 21.05.2008) MANU/DE/0795/2008
Whether it is mandatory to direct the workman who was awarded the wages in terms of Section 17-B ID Act to offer a tangible security for restitution to the management in case the award is set aside
As held in the case of DDA v. Smt. Omvati,it is not mandatory to direct the workman who was awarded the wages last drawn in terms of Section 17-B ID Act, to furnish security during the pendency of the petition to meet the eventuality of the employer succeeding in the writ petition. It would be open to the Court to pass appropriate orders depending upon the facts of each case as to in what form restitution has to be secured. If workman has no tangible security to offer a personal bond would do.
of wages-Whether the workman is entitled to the minimum wages or the last drawn
wages under Section 17-B ID Act.
As held by the apex court in Dena Bank (I) v. Kirti Kumar T.Patel and Dena Bank (II) v. Ghanshyam JT, the last drawn wages or the minimum wages whichever is higher is required to be paid from the date of the award to the workmen under Section 17-B ID Act. The import of Section 17-B admits of no doubt that Parliament intended that the workman should get the last drawn wages from the date of the award till the challenge to the award is finally decided which is in accord with the Statement of Objects and Reasons of the Industrial Disputes (Amendment) Act, 1982 by which Section 17-B was inserted in the Act. In Delhi Transport Corporation v. Presiding Officer, Labour Court it was reiterated that the wages in terms of Section 17-B ID Act would be payable from the date of the award. Section 17-B does not preclude the High Courts or this Court from granting better benefits more just and equitable on the facts of a case than contemplated by that provision to a workman.
The High Court
Krishna Texport Industries Ltd. Vs. DCM Limited (Decided On: 23.05.2008)MANU/DE/0787/2008
Power of the company court Under Section 391(6) of the Companies Act, 1956 to stay criminal proceedings-whether Sections 442 and 446, or Section 391 of the Companies Act, can be interpreted in a manner so as to quash the proceedings Under Section 138 of the Negotiable Instrument Act
The company court cannot call before itself the proceedings Under Section 138 of the Negotiable Instrument Act and quash the proceedings. The power to quash those proceedings rests only with the hierarchy of the criminal courts.
Section 138 of the NI Act, a later enactment, envisaged criminal prosecution for the offence of negotiable instruments being dishonored, including cheques with the object to reinforce sanctity of commercial transactions. Once the rigors of the provisions have been complied with, a person/company cannot, as a matter of right, come to the Court to deposit the amount and claim that the prosecution should be brought to an end. The provisions of Sections 442 and 446, or for that matter Section 391 of the said Act, cannot be interpreted in a manner so as to bring the proceedings Under Section 138 of the NI Act to a standstill.
In case of Jose Anthony Kakkad v. Official Liquidator, High Court of Kerela, it was held that the provisions of the special statute namely, the NI Act would have an overriding effect over the general principles of the Companies Act and that criminal proceedings as in the case of Section 138 of the NI Act and that criminal proceedings under Section 138 of the NI Act which are not in respect of the assets of the company would end in the conviction or acquittal of the accused, cannot be stayed under the Companies Act.
Jurisdiction of court
The High Court
of Jammu And Kashmir at Srinagar
Mohammad Hashim Qureshi Vs.State of J and K and Ors. (Decided On: 29.03.2007)
Jurisdiction of court-Whether the present Court is competent to exercise inherent jurisdiction in terms of Section 561-A of the Criminal Procedure Code 1989 (1933 A.D) in the given circumstances of the case- whether Enemy Agents Ordinance Act, 2005 bars the inherent jurisdiction of this Court?
Present Court cannot exercise jurisdiction in terms of Section 561-A of the Code in the present case. As held by the Apex Court in Satya Narayan Sharma v. State of Rajasthan,if any statute or enactment creates a bar for exercise of any jurisdiction, the inherent jurisdiction cannot be exercised to get over that bar. The Apex Court in Special Cell, New Delhi v. Navjot Sandhu reiterated that inherent powers should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code.
In the present case the object of the Ordinance was to create an offence and to provide a mechanism for the punishment for these offences. On conjoint reading of Section 7, 8 and 9 of the Ordinance, we can conclude that the High Court cannot exercise powers as revisional court. It is nowhere provided that the present Court can exercise powers under Section 561-A Code or can hear appeal against conviction in terms of Section 406 in terms of chapter XXXI contained in part-7 of the Code. Section 14 contains words "Exclusion of interference of other Courts" which makes it clear that interference of other courts is expressly barred and no appeal shall lie from any order or sentence made or passed by a Special Judge or reviewing judge under the Ordinance except as provided by the Ordinance. This provision of law specifically excludes jurisdiction of this Court and thus present Court is not competent to exercise inherent jurisdiction in terms of Section 561-A of the Cr P C 1989 (1933 A.D)
Trusts and Societies Laws
The High Court
Ideal Publications Trust Vs. Commissioner of Income Tax (Decided On: 27.02.2008) MANU/KE/0053/2008
Extent of Exemption to Charitable Trust under Income Tax Act-Whether the appellant trust engaged in the business of publication and printing of the newspaper is qualified for exemption as a Charitable Trust under Section 11 of the Income Tax
The appellant is not entitled for exemption as a Charitable Trust under Section 11 of the Income Tax Act because Sub-section (4A) of Section 11 intended that the object of the Trust should be for charitable purpose which includes advancement of object of general public utility and income from any business carried should be incidental to the objectives of the Trust but in the present case, the appellant trust is only engaged in publication of the newspaper, which is run on commercial lines including charging of commercial tariff for advertisements and charging of price for the newspaper at rates comparable to other newspapers run for profit. But the appellant Trust has not utilized or set apart any part of the income for any of the charitable purposes referred to in the object clause, viz. education, medical relief or relief of the poor. The appellant's case is that the business of printing and publication of newspaper itself is an object of general public utility and so much so the income there from is exempt from tax. The Supreme Court in the Asst. Commissioner of Income Tax v. Thanthi Trust, held that publication of newspaper is not education and therefore unless the business of publication of newspaper falls under Clause (4A), exemption cannot be granted.
Kerala High Court
The Kottakkal Co-op. Urban Bank Ltd. Vs. T. Balakrishnan.
(Decided on 25.01.2008) MANU/KE/0049/2008
Whether remedy by way of recourse to Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is available to take actual possession of the secured asset from a secured debtor after completion of sale on the basis of symbolic possession taken on the basis of notice under Section 13(4) of the Act read with Rule 6 of the Rules.
The provision in Section 13(4)(a) is an enabling one and does not preclude symbolic possession being taken, to be followed by sale.Section 13(8) provides that if the dues of the secured creditor are tendered at any time before the date fixed for sale or transfer, the secured assets shall not be sold or transferred by the secured creditor. The Scheme of the Rules and the Act does not preclude a sale before actual physical possession is taken. It is only beneficial to the debtor that actual possession is permitted to continue with him even while proceedings are on, on the strength of constructive possession or symbolic possession in exercise of authority under Section 13(4) of the Act. The Scheme of the Rules and the Act does not preclude a sale before actual physical possession is taken
S.13(6) by operation of law Vest rights exclusively with the transferee under a sale to dispose the secured debtor who continues in defacto possession only by the choice of the secured creditor to take only dejure possession, leaving the secured debtor with actual possession. Therefore, the secured creditor, who has taken over dejure possession continue to be a secured creditor, duty bound to give the transferee defacto possession and such liability of the secured creditor gives sufficient standing to sustain the application for dispossession of the secured debtor, of defacto possession over the security interest, by recourse to Section 14 of the Act.
Intellectual Property Rights
Delhi High Court
India Habitat Centre through its Director Vs. Ms. Sunita Aeren, Ms. Sanjeev J. Aeren, Indirapuram Habitat Centre and Vice Chairman, Ghaziabad Development Authority (Decided On: 26.05.2008) - MANU/DE/0830/2008
Whether there lies trademark in the word 'Habitat Centre' and its usage whether would amount to passing of the services?
Centre' is not a registered trademark of the plaintiff. The word 'Habitat' is a generic word taken from Latin word
'Habitatio' which means the process of inhabiting a house or home. In the field of ecology, the word 'Habitat' has been used in a broader sense as physical condition that surrounds species or species' population or assemblage of species or communities. This being a generic word, exclusivity to its use cannot be claimed by any person nor can be granted. The word
'Centre' is a descriptive word, which indicates the place or the concentration of a thing. No one can claim exclusive use to word
'Centre'. Neither 'Habitat' nor 'Centre' can be allowed to become property of any person singly or jointly, as these are names, which are in public domain and can be used by any person. The word 'Habitat
Centre' only signifies a centre providing services in relation with environment, assembling of people for various kinds of activities and getting together for different purposes. The 'Habitat
Centre', 'Cultural Centre', 'Health Centre', 'Shopping Centre', 'Activity Centre' are names which are in public domain and can be used by any person. The plaintiff does not have a prima facie case for injunction stopping defendant from using
'Indirapuram Habitat Centre' as its name.
Tribunals and Commission
National Consumer Disputes Redressal Commission
Kunj Behari Mehta and Anr. Vs. Ansal Properties and Industries Ltd. (Decided On: 12.05.2008) - MANU/CF/0070/2008
Whether the builder after agreeing to deliver the possession within a stipulated time, can raise a contention that as the price of the flat/property has gone up, it should not be directed to pay any compensation or to pay compensation at reduced rate for delay in delivering the possession of the property
No, such contention of any builder is unjustified and unreasonable because after sale of the property all the benefits accrue to the purchaser and not to the vendor.
The contention that there was increase in the price of the property and, therefore, compensation for such inordinate delay in delivery of possession should not be granted totally misconceived. If the price of an immovable property increases, it cannot be said that the parties are not required to abide by their contractual obligations. In any case, it is the luck of the Complainants that the price of the property has increased and it cannot be said that it is for the benefit of the vendor. The builder/vendor of the property cannot claim advantage on account of increase in price after sale.
Securities Appellate Tribunal
Goldman Sachs Investments (Mauritius) Limited Vs. The Adjudicating Officer, Securities and Exchange Board of India (Decided On 15.05.2008) - MANU/SB/0069/2008
Whether the Securities and Exchange Board of India could ask the Foreign Institutional Investors (FIIs) to furnish an undertaking that they had not dealt in respect of off-shore derivative instruments with Indian residents, non-resident Indians (NRIs), persons of Indian origin (PIOs) or overseas corporate bodies (OCBs) in the absence of a bar on such deals.
The requirement of an undertaking is opposed to all norms of reason and totally devoid of logic and borders on absurdity and is arbitrary. When the FIIs and their subaccounts have not been debarred from dealing in ODIs with Indian residents/ NRIs/ PIOs/ OCBs and many of them would have dealt with the latter, they could not be asked to furnish the undertaking. The requirement of the undertaking by FIIs and their sub-accounts could have been appreciated if they had first been debarred from dealing with the aforesaid persons or in other words, the bar must necessarily precede the undertaking demanded from the FIIs and their sub-accounts.
However, it was clarified that no suggestion was made that that the Board could not have called upon the FIIs to report about their activities or furnish to it the information required of them under the Regulations. It only disapproved the action of the Board requiring them to furnish the undertaking as prescribed for the first time in the revised reporting format in the absence of a bar prohibiting them from dealing in ODIs with Indian residents/ NRIs/ PIOs/