SUPREME COURT

• FAMILY

Dr. V. Ravi Chandran Vs. Union of India (UOI) and Ors. Decided on 17.11.2009 (MANU/SC/1826/2009)

Family - Legal battle for custody of child - Child in custody removed by a parent from one country to another in contravention of orders of Foreign Court where parties set up matrimonial home - Matters to be considered by Court in the country to which child has been removed

Held, while dealing with a case of custody of a child removed by a parent from one country to another in contravention to the orders of the court where the parties had set up their matrimonial home, the court in the country to which child has been removed must first consider the question whether the court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to child's welfare be investigated in a court in his own country. Should the court take a view that an elaborate enquiry is necessary, obviously the court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of child including stability and security, loving and understanding care and guidance and full development of the child's character, personality and talents. While doing so, the order of a foreign court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case. However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the jurisdiction of the Court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspects relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interest of the child.

• SERVICE

Rajendra Kumar Srivastava and Ors Vs. Samyut Kshetriya Gramin Bank and Ors. Decided on 17.11.2009 (MANU/SC/1825/2009)

Service - Promotion in service - Guidelines/rules prescribing minimum necessary merit for promotion - Guidelines/rules alleged to be arbitrary - Interference by Court

Held, whether the guidelines/rules adopted for assessing the minimum necessary merit by prescribing marks under several heads or by prescribing a specific minimum mark, is reasonable or arbitrary, would depend upon the facts of each case. If it is demonstrated that the minimum marks were fixed with the intention of favouring someone or to specifically exclude someone, the courts may interfere. Similarly, where the minimum marks are shown to have been fixed to defeat or nullify the mode of seniority-cum-merit for promotion, there may be a cause for interference. In other cases, there is very little scope to interfere with the procedure adopted to ascertain the minimum required merit

Pleasantime Products and Anr. Vs. Commissioner of Central Excise, Mumbai-I Decided on 12.11.2009 (MANU/SC/1814/2009)

Excise - Exemption of excise duty on toys - Classification of "Junior Scrabble" under sub-heading 9503.00 or sub-heading 9504.90 of the First Schedule to the Central Excise and Tariff Act for exemption of excise duty - Whether " Junior Scrabble" a game or an educational toy

Held, going by the dictionary meanings of the word "educational toy" one finds that "educational toys" remain today tools of amusement. They remain an object for a child to play with. One needs to apply the predominant test in such cases. Applying these tests, even a "Junior Scrabble" will not fall in the category of "educational toys" as the two main elements of "Scrabble" are - chance and skill. These elements are absent in a toy. Hence even a "Junior Scrabble" is not an educational toy. It is a game. It remains a board game and will come under Chapter Heading 95.04 of Central Excise and Tariff Act, 1985 and therefore not exempted from excise duty.

HIGH COURT

• COMPANY

KARNATAKA HIGH COURT

Indo Swiss Jewels Ltd. Vs. HMT Watches Ltd. Decided on 21.10.2009 (MANU/KA/0533/2009)

Company - Winding up - Winding up petition for realization of debts due - Whether winding up petition can be filed for realization of debts?

Held, winding up petition is not a legitimate means of seeking to enforce payment of a debt which is bonafide disputed by the company as in such a case the petition filed would be only to exercise pressure upon the company to settle the matter which would have to be dismissed by the court

Company - Winding up - Refusal for winding up by court - Exercise of discretion by court - Whether court can exercise discretion in refusing winding up despite a presumption of commercial insolvency?

Held, despite a presumption of commercial insolvency against a company there is scope for exercise of discretion to refuse winding up under exceptional circumstances such as where a debt is bonafide disputed by the company or the company has paid or tendered the petitioner's payment of debts

• INTELLECTUAL PROPERTY RIGHTS

MADRAS HIGH COURT

Future Logistics Pvt. Ltd. rep. by its Director Mr. S. Edwin Rajamohan Vs. Future Logistics Solutions Pvt. Ltd Decided on 08.06.2009 (MANU/TN/1255/2009)

Intellectual Property Rights - Trademarks - Infringement of trademark - Suit for passing off - Delay or acquiescence in filing suit - Whether relief of interim injunction can be rejected on ground that there is delay in filing the suit?

Held, even if there is inordinate delay in approaching the Court seeking the relief, the Applicant can very well explain the delay to the satisfaction of the court. If the delay in approaching the Court is found convincing, the question of rejecting the plea for interim injunction does not arise for consideration

Intellectual Property Rights - Trademarks - Infringement of trademark - Suit for passing off - Rights of prior user of trademark

Held, irrespective of the extent of trade, the person, who gets into the business first in point of time, acquires right to use the trade mark. The priority in use of the trade mark by the Applicant will have to be recognized by the Court when it is established prima facie.

• CRIMINAL

BOMBAY HIGH COURT

Shri Atul Naik Son of Madhukar Naik Vs. State through Public Prosecutor Decided on 30.09.2009 (MANU/MH/1093/2009)

Criminal - Offence of bribery - Alleged demand and acceptance of bribe - Presumption as acceptance of bribe by accused - Section 20 of Prevention of Corruption Act, 1988

Held, the premise to be established on facts for drawing a presumption is that there was payment or acceptance of gratification and once that premise is established, the inference to be drawn is that the gratification was accepted as the motive or reward for doing or attempting to do any official act.