SUPREME COURT

• CRIMINAL

Sukhwant Singh v State of Punjab (Decided on 18.05.2009) MANU/SC/0866/2009

The petitioner's application under Section 438 of the Cr.P.C. for grant of anticipatory bail was dismissed by a single judge of the High Court of Punjab & Haryana - Whether a Court hearing a regular bail application has got inherent power to grant interim bail pending final disposal of the bail application?

That in the power to grant bail there is inherent power in the court concerned to grant interim bail to a person pending final disposal of the bail application. Of course, it is in the discretion of the court concerned to grant interim bail or not but the power is certainly there. In the present case, if the petitioners surrender before the Court concerned and makes a prayer for grant of interim bail pending final disposal of the bail application, the same shall be considered and decided on the same day.

• SERVICE

Eastern Coalfields vs Anil Badyakar (Decided on 15.5.2009) MANU/SC/0805/2009 

An appeal is filed in response to the judgment of a Division Bench of High Court of Calcutta rejecting the appeals filed by the appellant - Whether the appointment made in respect of respondent, who is the son-in-law of the deceased after 12 years, would negate the very object of compassionate appointment?

The compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.

HIGH COURT

• PROPERTY LAW

CALCUTTA HIGH COURT

Sasanka Sekhar Bhattacharyya v Surajit Mohan Bardhan (Decided on 31.3.2009) MANU/WB/0071/2009 

A decree for recovery of possession of Schedule 'A' property, as mentioned in the counterclaim, in favour of the defendant was passed by the Assistant District Judge, Ninth Court, Alipore, District-South 24-Parganas - The plaintiffs were to hand over possession in favour of the defendant within three months from the date of passing of decree. Being dissatisfied, the plaintiffs have come up with the present first appeal?

It was found that there is no formal counterclaim within the meaning of Order VI Rule 8A of the Code. The counterclaim was not registered as a separate proceeding nor was any court-fee paid thereon. Even no statement was made regarding accrual of cause of action. It is well settled that in the counterclaim, the ingredients of Order VII Rule 1 must be established. In this case, the application for amendment of the written statement introducing the alleged counterclaim was made at the time of trial and it appears that no issue was even framed by the Trial Court for such counterclaim. Not a sentence has been pleaded showing the accrual of cause of action nor has any such date disclosed in the evidence of the defendant indicating accrual of such cause of action. Unless such date is disclosed the Court is not in a position to ascertain whether such cause of action arose before the filing of the written statement or before the time of filing written statement expired. In the absence of any such averments, evidence and finding of the Trial Court holding that the cause of action for counterclaim arose within the time mentioned in Order VIII Rule 6A of the Code, the Court below could not pass a decree on the purported counterclaim even if we ignore the defect of non-registration of the counterclaim as a mere technical mistake. Therefore, the learned Trial Judge erred in law in passing decree on counterclaim which was non est in the eye of law. We, accordingly, set aside the decree on counterclaim.

• CRIMINAL

HIGH COURT OF RAJASTHAN

Vishal Chaudhory vs State of Rajasthan (Decided on 11.5.2009) MANU / RH / 0118 / 2009

The petitioner detained under Section 3(2) of the National Security Act, 1980 for one year has filed a habeas corpus - Being aggrieved and dissatisfied with the order which has been approved by the state government the present habeas corpus petition has been preferred by the accused-petitioner on the ground that the detention order has been passed by the respondent No. 2 in mechanical manner without applying mind and before framing grounds, no enquiry was conducted. The impugned orders are further challenged on the ground that as per the provisions of Article 21 of the Constitution of India, a person cannot be wrongfully detained and his liberty cannot be curtailed without giving him opportunity to defend himself?

It is admitted fact that the representation of the petitioner dated 21.08.2008 was received by the State Government on 27.09.2008 from the Office of Her Excellency the President of India and the same was decided by the State Government vide order dated 09.04.2009, but the inordinate delay of about 6-1/2 months in disposing of the representation of the detenue has not been explained and the detenue is having every right of protection against arrest and detention under Article 22 of the Constitution of India. All the above facts make it clear that the representation was made by the petitioner on 21.08.2008 and the said representation was disposed of by the State Government on 09.04.2009. Thus, the representation of the petitioner has been decided by the State Government after an inordinate delay of about 6-1/2 months which makes the continued detention of the accused-petitioner illegal and deserves to be quashed. In the light of the aforesaid observations, the present petition is allowed and the impugned detention order of the petitioner dated 07.08.2008 is hereby set-aside. The petitioner shall be released forthwith, if not required to be detained in any other case.

• SERVICE

HIGH COURT OF RAJASTHAN

Vijay Kumar Juneja and S L Mahna v Rajasthan Non-Governmental Educational Institutions Tribunal & Ors (Decided on  18.05.2009) MANU/RH/0120/2009

The petitioners preferred separate applications under Section 21 of the Rajasthan Non-Government Educational Institutions Act, 1989 challenging the action of respondents thereby retiring the petitioners from service on attaining age of 58 years and praying for a direction to the respondents to allow them to continue in service upto the age of 60 years - Whether Ordinance 67-A of the Rajasthan University Ordinances will prevail or the employees will be governed by the Rajasthan Non- Government Educational Institutions Act, 1989 and the Rajasthan Grant-in- Aid to Educational and Cultural Institutions Rules, 1963?

The Act of 1989 and the Rules of 1993 prescribe the age of superannuation for teachers as 58 years. Since the petitioners have opted to accept new/revised pay scale which came into effect w.e.f. 01.01.1986 and the respondents have accepted the same, therefore, Ordinance 67- A is not relevant in the present case, and as per provisions of the Act of 1989 and the Rules of 1993, the petitioners were rightly retired by the respondents at the age of 58 years. After considering the case of both the parties and the judgment of the Non-Government Educational Institutions Tribunal, it is clear that the question involved in the present writ petitions has been answered by the Full Bench in Shri Vishwanath Sharma's case (Supra) and both the writ petitions are fully covered by the said decision and, in view thereof, I do not find any merit in these writ petitions and the same are accordingly dismissed but with no order as to costs.

• INTELLECTUAL PROPERTY RIGHTS

MADRAS HIGH COURT

TVS Motor Company vs Bajaj Auto Limited (Decided on 18.5.2009) MANU/TN/0976/2009

An appeal has been filed by the appellant in response to the Appellant's application for an order of interim injunction restraining the Respondent herein from in any way interfering with the manufacturing and marketing of the Appellant's products using Internal Combustion (IC) engine with 3 valves and 2 spark plugs pending the disposal of C.S. No. 979 of 2007 was rejected - The dispute involved in this litigation pertains to the patent right of the Respondent bearing Patent No. 195904 of 16.07.2002, granted by the Patent Office with its sealing dated 07.07.2005 - Under the said patent, the Respondent got the exclusive right to prevent third parties from making, using, offering for sale, selling or importing for those purposes 'An improved internal combustion engine working on four stroke principle' - The said patent also places restriction for grant of such patent to any one else for a period of 20 years from 16.07.2002 - Whether there is prima facie case of infringement as against the Appellant

While on the one hand the Respondent's patent having been granted is to be accepted prima facie as a valid one, in the same breath, it will have to be held that merely because such a valid patent is existing in favour of the Respondent, that by itself, it cannot be held that the Respondent has made out a strong prima facie case of infringement as against the Appellant. We say so because we too find a distinctive feature of a different operation in the Appellant's technology with three valve provision with twin plugs operation and the said three valves operation of the engine produce distinctively different result in its operation. To be more precise, while the twin plug operation in the Respondent's internal combustion engine may have resulted in improved internal combustion, the three valve technology of the Appellant also with twin plug provision produce a distinctive product of its own, different from the claimed invention of the Respondent. Such a distinction as between the patented claim and the infringed product is well protected under the provisions of the Patents Act.

• CUSTOMS

MADRAS HIGH COURT

M/s. Tanfac Industries Ltd., Cuddalore v. The Assistant Commissioner of Customs, Cuddalore (Decided on 20.04.2009) Manu/TN/1029/2009

Customs – DEPB/ DEEC - Bills of Entry - Interest - Section 61(2) of Customs Act, 1962 - There was delay in clearance from warehouse - Importers had effected clearance by utilising the DEPB scrip . The  B/E were assessed under Section 18 of the Customs Act - There were three Bills of Entries, only one of them was goods exported under DEEC Scheme and other two were under the DEPB Scheme – Whether interest was to be paid, since Appellant had effected clearance beyond the interest free ware housing period of 90 days as per Section 61 - Whether the debits under DEPB is equivalent to payment of duty in cash?

Held, under the DEEC Scheme, the clearance is allowed duty free, whereas under DEPB Scheme, the exporters are issued DEPB scrip which allows them specific amounts to be utilised for payment of customs duty . Therefore, the importers, who use DEPB scrip, pay duty not by cash but only by way of credit. The debit of any amount under the DEPB Scheme is a mode of payment of duty on the imported goods and cannot be treated as exempted goods, unlike the goods under DEEC Scheme. Therefore, the goods cleared under DEPB Scheme cannot be treated an exempted goods, but they can only be treated to be duty-paid goods and therefore, the interest is payable as per Section 61(2).