SUPREME COURT

• CRIMINAL LAWS

Md. Ankoos and Ors. Vs. The Public Prosecutor, High Court of A.P (Decided on 06.11.2009) MANU/SC/1795/2009

Criminal - Reversal of acquittal by High Court - Whether the High Court was justified in reversing the acquittal and convicting the appellants for the offence punishable under Section 302 read with Section 149 IPC even though appellants have been charged and thereafter, acquitted of the offence under Section 148 IPC?

In a case where the appellants have been expressly charged for the offence punishable under Section 148 IPC and have been acquitted there under, they cannot be legally convicted for the offence punishable under Section 302 read with Section 149 IPC. It is so because the offence of rioting must occur when members are charged with murder as the common object of the unlawful assembly. In view of the aforesaid legal position, the appellants having been acquitted under Section 148 IPC by the Trial Court as well as the High Court, they could not have been legally convicted by the High Court under Section 302 read with Section 149 IPC.

• LABOUR AND INDUSTRIAL

Ashok Kumar Sharma Vs. Oberoi Flight Services (Decided on 06.11.2009) MANU/SC/1794/2009

Labour and Industrial - Compensation - Illegal termination or retrenchment of daily wager in violation of Section 25-F of Industrial Disputes Act - Whether award of monetary compensation in lieu of reinstatement and back wages adequate and in the interest of justice?

Relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement is held to meet the ends of justice. In light of the aforesaid legal position, the view of the High Court that monetary compensation in lieu of reinstatement of the workman would be proper cannot be said to be unjustified.

Dashrath Rao Kate Vs. Brij Mohan Srivastava (Decided on 03.11.2009) MANU/SC/1782/2009

Civil - Determination of legal representative in a suit under Order 22 Rule 5, CPC - Re-agitation of same matter in a subsequent suit whether permissible -When a person has been joined as a legal representative under Order 22 Rule 5, CPC in a suit, whether the matter can be re-agitated in a separate suit?

It has been held in Tarachand v. Mt. Janki that once a person is joined as a legal representative under Order 22 Rule 5, CPC and once it is accepted that that is final so far as that litigation is concerned, then it follows to the decree, and, thereafter, all matters relating to the `execution, discharge or satisfaction' of that decree must be decided under Section 47 and not in a separate suit. Insofar as the suit in the present case is concerned, the question was finally decided under Order 22 Rule 5, CPC and in the same suit, it could not be re-agitated.

HIGH COURT

• ARBITRATION/CIVIL

Oval Investment P. Ltd. and Ors. Vs. Indiabulls Financial Services Ltd. and Ors (Decided on 03.11.2009) MANU/DE/2790/2009

Civil Procedure Code (CPC) - Arbitration and Conciliation Act - Overlapping jurisdiction of civil court and Arbitral Tribunal- Applicability of the Arbitration clause - Issuance of notice invoking the arbitration clause bars the jurisdiction of the Civil Court - Contention being that such notices are the springboard or sine qua non for commencement of arbitration proceedings?

Held, notices if once dispatched, despite the attempts of the parties to avoid service, is deemed to have been served. Service of notice and/or issuance of request for appointment of arbitrator in terms of the arbitration agreement determine the commencement of the arbitral proceedings. The only exception to the general rule that Civil Courts possessed no jurisdiction over arbitral proceedings is applicability of the power conferred by the statute under Section 9 of the Arbitration and Conciliation Act to pass the interim measures.

• BANKING

MADRAS HIGH COURT

R. Lakshmanan, Indian Overseas Bank rep. by its Chief Manager and Vs. Indira Stephen Vs. Indian Overseas Bank Nungambakkam Branch rep. by its Chief Manager and Ors (Decided on 30.10.2009) MANU/TN/2933/2009

Banking - Scope of Jurisdiction of Banking Ombudsman under Banking Ombudsman Scheme 1995 - Bar on jurisdiction - Clause 16(3)(d) of Banking Ombudsman Scheme 1995

In terms of Clause 16(3)(d) of Banking Ombudsman Scheme 1995, no complaint to the Banking Ombudsman shall lie unless the complaint is not the subject matter, for which any proceedings before any Court, Tribunal or Arbitrator or any other forum is pending or a degree or Award or order of dismissal has already been passed. In the instant case, in respect of the same instrument, the petitioner had filed a criminal complaint before the Crime Branch, Chennai before filing complaint before the Ombudsman. Therefore, in such circumstances, by considering the scope of Clause 16(3)(d), the Ombudsman ought not to have proceeded further since the same subject matter was pending before another forum.

• CRIMINAL

GUJARAT HIGH COURT

Kasam Hussain Hathila and Anr. Vs. State of Gujarat and Anr. (Decided on 28.10.2009) MANU/GJ/0594/2009

Criminal - Initiation of Criminal Prosecution with malafide intention - Prosecution used for ulterior motives - Abuse of process of court - Exercise of Inherent Power of Court under Section 482 CrPC

The Apex Court in the case of State of Haryana and Ors. v. Ch. Bhajan Lal and Ors has held that powers under Section 482 can be exercised by the court where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. Therefore, the present complaint cannot be allowed to stand as complainant has tried to falsely implicate the petitioners.

• INTELLECTUAL PROPERTY RIGHTS

DELHI HIGH COURT

Rhizome Distilleries P. Ltd. and Ors. Vs. Pernod Ricard S.A. France and Ors (Decided on 23.10.2009) MANU/DE/2742/2009

Intellectual Property Rights - Trademarks - Suit for passing off and trademark infringement - Exclusive right of a party with respect to a generic word used as part of a Trademark

If a party chooses to use a generic, descriptive, laudatory or common word, it must realize that it will not be accorded exclusivity in the use of such words. At the most, it may bring a challenge in the nature of passing off and in such an event the Court would look at the rival labels/packaging/trade dresses in order to determine whether a customer possessing a modicum memory and ordinary intelligence may be so confused as to purchase one product believing it to be the other. In the present case, no exclusive or proprietary rights can be claimed by either of the parties in respect of the word IMPERIAL which is not only in common parlance to be found in every dictionary, but also is laudatory in nature as it alludes to royalty or grandeur.

• CONSTITUTION

BOMBAY HIGH COURT

Rajkumar S/o Shivlingrao Gaulkar Vs. The State of Maharashtra through Police Station, The Scheduled Castes, Vimukta Jatis, OBCs and Special BCs Welfare Caste Certificate Verification Committee through its Member Secretary and Divisional Social Welfare Officer, Division Aurangabad, The Tahsildar and Taluqa and Navnath S/o Ramrao Kotsulwar (Decided on 16.10.2009) MANU/MH/1249/2009

Constitution - Retrospective operation of  the penal provisions - Conviction thereon - Article 20 of Constitution of India - Whether the conviction based on the retrospective operation of  the penal provisions is justifiable - Whether it is permissible to let penal provisions operate retrospectively ?

Article 20 of the Constitution of India clearly mentions that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence. There is no dispute on the point that prior to the Act of 2000 the petitioner had obtained the caste certificate in the year 1979. The petitioner's said caste certificate was not put to verification. Therefore, there was no occasion for any quasi judicial, judicial or any other forum to verify the caste claim of the petitioner. Penal provisions mentioned in Section 11 of the Act of 2000 cannot be made applicable to the facts of the present case because if it is allowed, then Section 11 of the Act of 2000 would operative retrospectively and penal provisions of statute do not operate retrospectively as it is against the spirit of Article 20 of the Constitution.