Tag: #DelhiHighCourt

-Report by Radhika Mittal

The case involves a petitioner who filed two separate refund applications, seeking a refund of the unutilized Input Tax Credit (ITC) amounting to ₹72,03,961/- and ₹12,40,270/-, respectively. The refund was in respect of goods exported by the petitioner. However, the applications were not processed due to allegations that the supplier from whom the petitioner had purchased the goods had received fake invoices from its suppliers.

FACTS :

The petitioner has filed petitions challenging the Order-In-Appeal dated 31.03.2022 which dismissed two separate appeals. The petitioner filed two refund applications, dated 11.09.2020 and 12.09.2020, for the unutilized Input Tax Credit (ITC) amounting to ₹72,03,961/- and ₹12,40,270/-, respectively, in respect of goods exported by the petitioner. Respondent no.2 issued an acknowledgment (in Form GSTRFD-02) dated 27.09.2020, in respect of the petitioner’s refund application for the amount of ₹12,40,270/-. In respect of the first application dated 11.09.2020, respondent no.2 issued a deficiency memo dated 21.09.2020, stating that the supporting documents were not uploaded on the GST portal.

Accordingly, the petitioner filed another application dated 23.09.2020 along with all documents in support of its refund application. The same was acknowledged by the respondent on 01.10.2020. The petitioner’s applications were not processed as the supplier from whom the petitioner had purchased the goods had allegedly received fake invoices from its suppliers. A search was conducted by the officers of Central GST, Anti Evasion Branch, Delhi West Commissionerate in the petitioner’s premises on 21.10.2020. The petitioner (its proprietor) was summoned to the office of respondent no.1 on 23.10.2020 to tender certain documents. The petitioner appeared before the Superintendent, Anti Evasion Branch on 23.10.2020 and furnished documents as sought for. Notwithstanding the same, the petitioner was issued another summons dated 28.12.2020 for furnishing the documents, which, according to the petitioner, had already been submitted.

The petitioner wrote several letters to respondent no.2 requesting early disposal of his refund applications. However, his requests were not acceded to. In the meantime, the petitioner became aware of the allegations that its supplier, M/s Shruti Exports, had issued fake invoices and its ITC was blocked. The said supplier had moved the High Court of Calcutta by filing a writ petition seeking to unblock its Electronic Credit Ledger (ECL).

A show cause notice dated 04.06.2021 was issued by respondent no.2 to the petitioner proposing to reject the petitioner’s refund applications. This show cause notice indicated that respondent no.2 had sought a report regarding the legitimacy and genuineness of the export of goods from the Customs Station, Kolkata, which were purchased by the petitioner from M/s Shruti Exports (proprietor Sh. Vijander Kumar Goel). The petitioner responded to the said show cause notice on 12.06.2021. The petitioner was also afforded a personal hearing by respondent no.2 on 01.07.2021. During the course of the said proceedings, the petitioner also submitted additional documents in support of its refund claim. The petitioner submitted that he was not concerned with any allegation against its supplier M/s Shruti Exports (proprietor Vijander Kumar Goel) as the purchases made by it were genuine and against genuine invoices. 

Plaintiff’s Contentions:

The petitioner contended that it was not concerned with any allegation against its supplier as the purchases made by it were genuine and against genuine invoices. The petitioner further argued that it had submitted all the relevant documents in support of its refund claim, and the delay in processing the refund applications was causing financial hardship.

Defendant’s Contentions:

The respondent argued that the petitioner’s refund applications were rightly rejected as the supplier from whom the petitioner had purchased the goods had allegedly received fake invoices from its suppliers. It was also alleged that the said supplier had availed CGST and SGST amounting to ₹1,35,21,489/- and Cess of ₹21,76,132/- on the strength of fake invoices issued by certain persons. The respondent further contended that the delay in processing the refund applications was due to the investigation into the alleged fake invoices.

Judgment:

The court held that the petitioner’s refund applications could not be rejected merely on the basis of allegations against its supplier. The court further noted that the petitioner had submitted all the relevant documents in support of its refund claim, and the delay in processing the refund applications was causing financial hardship. The court directed the respondent to process the petitioner’s refund applications within a specified time.

READ FULL JUDGEMENT: https://bit.ly/3ZZYaSg

-Report by Anurag Sinha

Regarding Reliance Home Finance Ltd.’s (RHFL) insolvency, the Supreme Court has approved a resolution plan filed by Authum Investments and Infrastructure Ltd (All), a non-banking financing business, to cover RHFL debenture holders. Nevertheless, the scheme excludes holders of dissenting debentures.

A bench comprised of Justices BR Gavai and Aravind Kumar further ruled that the dissenting debenture holders be given the option of accepting the conditions of the Resolution Plan (RP) who advocated such a purchase.

Following the approach followed in the case SEBI vs Rajkumar Nagpal 2022 involving a sister firm of RHFL, Reliance Commercial Finance Ltd, the Court utilised the authorities under Article 142 of the Constitution to give the decision (RCFL).

“We conclude that the facts in the current instance are identical to the facts in the case of SEBI vs Rajkumar Nagpal. In this scenario, we believe that a new voting procedure proposed in the SEBI Circular will further prolong the resolution process and may disrupt the efforts of stakeholders, especially retail debenture holders… We are inclined to grant such instructions to shape the relief in light of the specific facts and circumstances in this instance, which are similar to those in Rajkumar Nagpal (supra), the bench stated.

The panel went on to say that dissenting debenture holders should be given the option of accepting the resolution plan’s conditions or pursuing other legal actions to recover their responsibilities.

FACTS:

In 2018, RHFL issued debentures via private placement, for which it executed several Debenture Trust Deeds. Nine of them were executed with IDBI Trusteeship Services Ltd. It has taken on a sizable loan in the past. the pooling of resources via loans from several financial entities Also, RHFL’s failure affected the issued Debenture Trust Deeds. In accordance with the authorized RHFL RP, all 19,353 holders of minor debentures would get full payment of their principal.Debenture holders’ approval was required per a SEBI circular titled Standardisation of procedure to be followed by Debenture Trustee(s) in event of Default by issuers of listed debt instruments because the RBI Circular only applied to debts owing to Banks/Financial Institutions.

In order to comply with the requirements of the SEBI Circular, debenture holders must cast their votes before. To engage in an ICA, 75% of investors must provide their blessing, on a numerical basis, and 60% must give their blessing, on an ISIN basis. An International Securities Identification Number (ISIN) is a 12-character alphanumeric identifier that may be used to identify a single security. In 2021, a business lawsuit was filed at the Bombay High Court,

Debenture holders’ vote on the RP. The Supreme Court ordered a gathering of the holders of debentures to a meeting and further ordered that the results of the vote be kept secret. The vote tally disclosure was the subject of a separate appeal. According to the results, 94.55% of the debenture holders present (869 out of 919) voted in favour of the RP Le.

The consortium of lenders also accepted a resolution plan for the RCFL that was provided throughout the proceedings. Both RPs share many similarities. Separate actions before the High Court had also required RCFL to call a meeting of debenture holders. The Securities and Exchange Board of India (SEBI) appealed the meeting’s convening before the High Court’s Division Bench on the grounds that the voting mechanism did not comply with the SEBI Circular but instead followed the procedure stipulated in the Debenture Trust Deeds. The Division Bench ruled against the appeal, explaining that the SEBI Circular could not be retroactively implemented. The SEBI was so displeased that it filed a petition with the Supreme Court.

In the case of Rajkumar Nagpal, a three-judge panel of the Supreme Court ruled in favour of the appeal, concluding that the SEBI Circular will be applied retroactively.

Yet, the Court pointed out that debenture holders would greatly benefit from the RCFL’s resolution plan. It then moved to adopt the plan, giving holders of dissenting debentures the choice of accepting the plan or standing outside it and seeking alternative legal measures to collect their dues.

After receiving this ruling, RHFL submitted an Interim Application requesting the resolution plan be approved under the following conditions:

When the High Court heard the interim plea, it rejected it, reasoning that it lacks the authority under Section 151 of the CPC to provide relief and adopt the settlement plan, as it did in the instance of Rajkummar Nagpal. The Supreme Court was primarily concerned with this issue.

JUDGEMENT BY THE COURT:

In the current instance, the Court remarked that small investors with up to Rs 5 lakhs in exposure gain to the tune of 100% of their principal investment. Even debenture holders with more than Rs. 5 lakhs in exposure receive 23.24% of their principal amount, as in Rajkumar Nagpal’s instance.

“In the current instance, such unscrambling of the resolution process will not only be time-consuming, but it may also have a negative impact on the agreed realized benefits to retail debenture holders who have already approved the negotiated settlement before the High Court. We believe that in this situation, too, we should extend the advantage under Article 142 of the Indian Constitution to retail debenture holders. We are inclined to provide such directions to shape the relief in light of the specific facts and circumstances in this instance, which are comparable to those in Rajkumar Nagpal (supra). In any instance, we intend to defend the interests of dissenting debenture holders who are not covered by the proposed RP outlined in the lender’s ICA and to pursue further legal remedies “When accepting the appeals, the Court made the following observation:

Senior Counsel KK Venugopal and Dhruv Mehta intervened on the appellants’ behalf. Senior Counsel KV Viswanathan represented Bank of Baroda and Canara Bank, and Assistant Solicitor General Venkataraman represented SEBI.

READ FULL JUDGMENT: https://bit.ly/3mM6WEQ

-Report by Kanishka

It was held by the Supreme Court of India in the case of ITD CEMENTATION INDIA LIMITED Vs SSJV-ZVS JOINT VENTURE & ORS that a shared interest in the enterprise’s assets or subject matter, as well as contributions of money, supplies, labor, or knowledge from each party, may be necessary for the foundation of a joint venture.

FACTS:

An application has been made to strike Respondent No. 2 from the list of parties in the current petition. The execution proceedings are a result of an Award made on March 9, 2019, according to which the Enforcement Petitioner is now entitled to receive Rs. 6,65,55,228/- plus interest at 12% from November 7, 2013, till the amount is realized, as well as fees.

A joint venture between M/s SSJV Projects Private Limited and M/s Zarubezhvodstroy formed the first respondent. According to the applicant’s own admissions, the aforementioned joint venture was established in order to carry out the contract for the building of a barrage and a desilting chamber for the Tapovan-Vishnugad Hydroelectric Power Project. The documents provided in these proceedings make clear that on February 6, 2009, the Respondent had signed a contract for the building of an upstream cut-off wall. Due to disagreements, the subject was ultimately sent to arbitration. The process eventually resulted in the declaration of an Award, whose enforcement is demanded in the current suit.

The second Respondent, SSJV Projects, was unquestionably a part of the joint venture. The joint venture was represented by an array of respondents before the arbitral tribunal.

The Applicant Respondent No. 2 nevertheless argues that the execution procedures as framed against it are unmaintainable since it was not individually given notice by the Arbitral Tribunal.

The second respondent is a legal entity that has been lawfully incorporated, giving it a separate and distinct character in law, and as such, the counsel representing the applicant would argue that no execution actions may be brought against it.

COURT’S DECISION:

In addition, learned counsel cited a ruling made by the court in Consulting Engineers Group Ltd v. National Highways Authority of India (NHAI) to bolster her arguments. However, it must be made plain right away that Consulting Engineers cannot be taken as an authority defending the claims made on the applicant’s behalf. If a consortium member had been acting alone, might they have requested interim relief or invoked arbitration? Consulting Engineers were debating this issue. The learned Court finally decided that a member of a joint venture could not independently petition for interim measures, although negating the right of an individual member to initiate such a petition. Moreover, the court ruled that a consortium member cannot unilaterally request relief from the court and that only the joint venture has the power to employ the dispute resolution provision. Hence, the ruling in Consulting Engineers actually contradicts the arguments made in favor of the applicant.

When describing the idea of a joint venture, Dr. George initially cited a decision made by the Gujarat High Court Division Bench in the case of Asia Foundations & Constructions Ltd., Bombay v. State of Gujarat. The aforementioned High Court defined the fundamental characteristics of a joint venture when rendering its decision in the context of a contestable tendering procedure.

As may be seen from the remarks made in paragraph 14 of the report, the Gujarat High Court restated the opinions made in Asia Foundations in Continental Construction Ltd. and Ors. v. State of Gujarat & Anr.

Corpus Juris Secundum provides a more thorough explanation of the joint venture idea and provides the following definitions of the nature of such businesses:

An alliance of two or more people to operate a single profitable business company is typically referred to as a joint venture. This legal relationship was established by American courts.

According to the aforementioned, clearly stated concepts, a joint venture may be defined as a quasi-partnership when two or more entities work together to carry out a specific transaction or contract for mutual benefit. In essence, it illustrates the idea that two or more people might jointly assume the responsibility for carrying out a contract or starting a business in order to make money. A joint venture enters into a contract and binds itself to the numerous responsibilities set thereunder and exercises all rights granted therein, even if it is not strictly speaking considered to be a legal person under the law. Another option is a consortium, in which two or more people or businesses band together to fulfill their duties.

Unquestionably, the joint venture itself, acting for and on behalf of all of its members, signed the contract in this case. Respondents Nos. 2 and 3 collaborated on the business endeavor and agreed to split the earnings. It is obvious that the Enforcement Petitioner has the legal right to pursue action against the Respondents jointly and severally. The Court additionally determines that the individual joint venture participants were neither required nor placed under a responsibility to be arrayed as party respondents by the Enforcement Petitioner. For the purposes of deciding the claims that eventually came to be made by the Petitioner, it was evidently sufficient that the joint venture itself was before the Arbitral Tribunal.

The trial of such conflicts cannot be requested by the individual joint venture partners based on their own agreed-upon or imagined personal duties and obligations. They obviously wouldn’t bind other parties. It is obvious that the person granting a contract in favor of a joint venture has the right to continue with the assumption that all of the consortium’s members would be held jointly and severally accountable. Naturally, any contract or agreement to the contrary will apply to this. In any scenario, a joint venture’s member cannot avoid the responsibility that has been raised or resulted from that endeavor. It would still be held jointly and severally accountable, as stated above.

As a result of the aforementioned factors, the Court is unable to uphold the petition as it is stated. The application will be rejected.

READ FULL JUDGMENT: https://bit.ly/3ZQPFZI

-Report by Harsh Singh Rajput

In the case of Annanya Yaduvanshi(Minor) vs Central Board Of Secondary Education & Others, the father (Rajendra Prasad) of the minor (Annanya Yaduvanshi) filed a petition, claiming compensatory time for Writing. As her daughter is suffering from hearing impairment and according to the guidelines of CBSE, she is entitled to such compensation, which CBSE itself fails to provide her.

FACTS:

In this case, Ananya Yaduvanshi is a Minor who was pursuing her class 12 from CBSE Board. She is diagnosed with Sensorineural Hearing Loss. She finds it difficult to complete her exam within the given time due to 77% hearing impairment in both ears. That’s why her father Rajendra Prasad sent an application to CBSE Board through her school regarding extra time to be given to her to write her exam. But that application got rejected by the CBSE Board by issuing a letter on 02-03-2023. Then her father as natural guardian on behalf of her daughter (who was a minor according to law) filed a petition W.P.(C) 2881/2023 and CM APPL.11182/2023 against the CBSE Board.

PLAINTIFF’S CONTENTION:

The father of Ananya (Minor) filed the petition W.P.(C) 2881/2023 and CM APPL. 11182/2023 to dissolvethe letter dated 02-03-2023 to grant the minor necessary compensatory time to write her class 12th exam for the academic session of 2022-23. And her daughter was also suffering from Sensorineural Hearing loss i.e 77% of hearing impairment in both ears as per the rights of a Person With Disability Act, 2016.

As clearly stated in this act, ‘Responsibility has been cast upon the appropriate governments to take effective measures to ensure that the persons with disabilities enjoy their rights equally with others’. That’s why her father filed a petition against the letter issued by the CBSE, which was rejecting thePlaintiff’s application to let her daughter have some extra time while writing in the examination.

Learned Counsel on behalf of the Plaintiff said that as per the guidelines of CBSE dated 12-04-2019, Plaintiff(minor) should be given some extra time for writing inexamination and her father has also given anapplication regarding her impairment to the principalof the respondent of No. 3 school.

RESPONDENT’S CONTENTION:

At first, CBSE itself rejected the application of theminor for granting compensatory time by issuing a letter dated 02-03-2023. It stated that the reason for the rejection of Plaintiff’s application was that the application was not updated by their school on time. And as the application is due by its date it cannot be considered by the respondents.

Learned Counsel for Respondent Mr. Atul Kumar saidthat the impugned letter dated 02-03-2023 was given on basis of technical grounds to Plaintiff for therejection of their application.

JUDGEMENT:

The Delhi High Court said that CBSE by following its guidelines and circulars should accept the request of Plaintiff to provide extra time for writing in the examination. Further that, technical issues in the delay of application before CBSE should not be considered as important in the petitioner’s case, and the Court decided the date for the next exam of the Plaintiff is 11-03-2023 and before that CBSE has to decide the representation of the petitioner.

READ FULL JUDGMENT: https://bit.ly/3JoC0ng

-Report by Atharva Dixit

The judgment of SANDEEP TILWANI Versus STATE OF NCT, by the High Court of Delhi relates to a petition filed by Sandeep Tilwani, the director of J Sai Kripa Import & Export Co. Ltd., seeking regular bail in case FIR No. 220/20 Under Section 420/406/467/468/471/474/120-B IPC registered at Police Station E.O.W. The complaint was filed by Ms. Upma Sharma who is one of the directors of the company “Cargomasters Logistics Pvt. Ltd.”, engaged in the business of freight forwarding and logistics services (International transportation) alleging that the respondent company’s payment for logistical support was not made by the petitioner and when bill of ladings (BLs) was not issued, the petitioner fraudulently sent fake Telegraphic Transfers (TTs) to give the impression that payment from Thai bank has been requested and tricked the respondent in sending the BLs and resulting in clearance for the transported goods without payment being made to the logistics co.

FACTS:

The complainant alleged that in 2018, petitioner assigned 74 bookings of 640 rice containers to the complainant company for freight services (transportation) amounting approximately to the amount of Rs. 11,20,00,000/-. for gaining the confidence of the complainant, petitioner made initial payments to the complainant and he stopped the payment after that the complainant held the release of remaining Bill of Ladings (BLs). The petitioner induced the complainant to release the remaining BLs and to assure her, he sent copies of two Telegraphictransfers (TTs) as proof of payment and promised that he was going to transfer the payment through these TTs from Thailand. The complainant believing these (TTs) to be true released 3 remaining BLs. But neither the due payment nor the payment against these 3 BLs, was transferred by the petitioner. Later on, the complainant came to know that the said (TTs) were never deposited in the concerned bank in Thailand.

PETITIONER’S CONTENTIONS:

It was submitted by the petitioner that a civil dispute is beingconverted into a criminal case in order to recover the money in a commercial transaction. He further submitted that the Petitioner was only a mediator between the seller and the buyer and he is being implicated in a ploy to extort money from the petitioner. He further submitted that no efforts have been made to arrest the co-accused persons and the investigation is now complete and no useful purpose would be served by keeping the petitioner in custody. He also alleged that the respondent concealed material facts and gave false information while registering the FIR.

RESPONDANT’S CONTENTIONS:

The respondent strongly opposed the bail plea by stating that the petitioner is a habitual offender and his passport has been seized by the Thai court in a similar matter. He has also changed his identity and has got four passports issued. In order to gain the confidence of the complainant the petitioner made initial payments to the complainant and thereafter stopped the payment for freight services. He also induced the complainant to release the BLs by showing forged TTs as proof of payment and believing them to be true, the complainant released the BLs and suffered a huge loss. 

JUDGMENT:

Rajnish Bhatnagar, J. while dismissing the bail application held that “the petitioner is a habitual offender having similar cases registered against him in the court of Thailand and he has even got issued 4 passports by changing his identity. So, when such is the position, the petitioner is a flight risk and the allegations against him are severe in nature who has cheated the complainant in a planned manner to the tune of more thanrupees Six Crores. The petitioner has even got 3 Bill of Ladings (BLs) released from the complainant and in order to gain the confidence of the complainant, he sent copies of two Telegraphic Transfers (TTs) as proof of payment and the complainant believing these two TTs to be true released 3 Bill of Ladings (BLs) but neither the due payment nor the payment against these 3 Bill of Ladings (BLs) was transferred by the petitioner and later on it was revealed during the investigation that the TTs were never deposited by the petitioner in the concerned bank at Thailand and the petitioner succeeded in getting 3 Bill of Ladings (BLs) released by the complainant by sending fake TTs.”

READ FULL JUDGMENT: https://bit.ly/3T3X6KX

– Report by Parvati Arun

It was held by the High Court of Delhi in the case of  CAMPUS ACTIVEWEAR LIMITED versus  RAM SHANKAR GARG & ORS. that the plaintiff has failed to prove the criteria for reaching the status of passing off products. The case presented here was the plaintiff’s claim of violation of deceptive business practices through violation of intellectual property rights.

FACTS:

➢ The plaintiff, Campus Active Limited, practices the business of manufacturing footwear of a wide range and has registered proprietorship over the title of “CAMPUS” in various formats ( also referred to as “ registered marks”, which are later made to sell with the same marks. 

➢ The issue here arises due to the use of formative marks by the defendant “impugned marks” ) Ram Krishna Garg’s establishment, M/s Baba Footwear, which is similar to that of the marks used by the plaintiff which are also used for manufacture and sale of footwear.

➢ The plaintiff’s predecessor-in-title adopted the establishment in 1990 and chose to add several variations of a cursive logo( red and grey tones) as a registered mark for Campus Activewear Limited in 1997. The rights over these marks have been allotted to the plaintiff in question and some formalities were launched to change the name in the records of the Trademark Registry. The plaintiff was also said to own a proprietorship over registered logos of blue and greyish tones.

➢ The proprietor, Ram Chandra Garg who has been treated as Defendant no 1 in this matter owns and has sole proprietorship over M/s Baba Footwear, his establishment which has been treated as  Defendant no 2, and also has ownership over the logo “CAMPS” which has a cursive design above the letters which is used on footwear manufactured and produced by the establishment. 

➢ This design was adopted in 1980 and further, in 1996, they modified the logo in a stylized manner which was formed using the first name of the proprietor in Devnagri script “र” by placing it above the word “CAMPS”.

➢ Defendant no 3 has been prosecuted as a dealer of the impugned goods.

PLAINTIFF’S CONTENTIONS:

➢ The Senior Counsel for Plaintiff, Ms. Kirti Uppal claimed that the registered marks of the plaintiff have been in use since 1984 which has also led to the establishment acquiring substantial goodwill.  Moreover, the plan also has obtained protection in foreign countries which lead to the recognition of their registered mark as a well-known trademark.

➢ The Plaintiff obtained their registration for the trademark “CAMPS” on 12^th November 1990 while defendant no 1 and 2 got their registration for the impugned mark only in 2001 thus leading to a huge time difference between both the establishments adopting the registered mark and the impugned mark. The plaintiff also leveled claims stating that their unique logo was imitated by the defendant leading to business losses.

➢ There is also the issue of similarity in terms of pronunciation of “CAMPUS” and “CAMPS” adopted by the plaintiff and defendant respectively with an inverted red double tick on top of the letter ‘M’ hurting the prospects of the plaintiff in conducting business as well as the chances of riding on their previous goodwill as well.

➢ The actions of the plaintiff have led to loss for the plaintiff. The plaintiff’s side presented evidence from the defendants’ website through screenshots showing that they have imitated the registered trademark as well as engaging in the selling of counterfeit goods.

DEFENDANTS’ CONTENTIONS:

➢ Defendants no 1 and 2, were represented by Mr. Avneesh Garg who contended that the defendants were using the trademark “CAMPUS” since 01^st October 1980 despite being registered on 22^nd October 2001. He also further claimed that the plaintiff started using their mark “ CAMPUS” recently and it was only after the registration of their particular mark was done by the defendant.

➢ To counter the claims of similarities between the two marks, the defendants’ side argued that their mark had superior rights because of prior use.

➢ The allegation of infringement which was raised by the plaintiff would be countered by Section 34 of the Trademarks Act, 1999 which states about protection granted due to prior use of a mark, therefore, making the plaintiff’s market share irrelevant. The defendant’s side also presented proof regarding the plaintiff using the mark on a proposed to-be-used basis and also that of a similarly termed mark “ CAMPS” as well further substantiating their arguments of the plaintiff riding on the defendants’ goodwill.

COURT’S DECISION:

The Court has established that the plaintiff has not suffered any damage leading to irreparable harm/injury, therefore, displaying the lack of a prima facie case thus proving that the adoption of the impugned mark was done in good faith and failure on the part of the plaintiff to prove the test of passing off.

READ FULL JUDGMENT: https://bit.ly/3ZQU66x

-Report by Harshit Yadav

The present case of DR. REDDYS LABORATORIES LIMITED versus RIKON PHARMACEUTICALS PVT. LTD. is a legal settlement agreement between two parties regarding a trademark dispute that was settled with the intervention of the Delhi High Court Mediation and Conciliation Centre. The settlement agreement outlines the terms and conditions that both parties have agreed to abide by, and the judgment confirms that the suit is decreed in terms of the settlement agreement, which shall be binding on both parties. The plaintiff is entitled to a refund of court fees, if any, deposited by them.

FACTS:

The parties involved in this case were disputing over the ownership and use of a trademark named “NISE” and “RIKONISE”. The plaintiff was the owner of the trademark “NISE”, which they claimed was being infringed upon by the defendant’s use of the trademark “RIKONISE”. The defendant was manufacturing and using the mark ‘RIKONISE-P’ or ‘NISE-P’ in medicinal and pharmaceutical preparations of suspension syrups for domestic sale in India and for export.

ISSUES RAISED:

Whether the defendant’s use of the mark “RIKONISE-P” infringed upon the plaintiff’s exclusive proprietary rights in the trademark “NISE”.
Whether the defendant’s use of the mark “RIKONISE-P” constituted passing off of their goods as that of the plaintiff’s.
Whether the plaintiff was entitled to damages, the account of profits or any other relief for the alleged infringement and passing off.
Whether the parties could reach a settlement agreement that would resolve the dispute between them.

PLAINTIFF’S CONTENTIONS:

The plaintiff claimed that they had exclusive proprietary rights in the trademark “NISE” and that the defendant’s use of the mark “RIKONISE-P” in medicinal and pharmaceutical preparations of suspension syrups for domestic sale in India and for export was an infringement of their trademark rights. The plaintiff further contended that the defendant’s use of the mark “RIKONISE-P” was likely to cause confusion among consumers and constitute passing off of their goods as that of the plaintiff.

DEFENDANT’S CONTENTIONS:

The defendant, on the other hand, denied that their use of the mark “RIKONISE-P” amounted to infringement of the plaintiff’s trademark rights or passing off. The defendant claimed that the mark “RIKONISE-P” was distinctive and not deceptively similar to the plaintiff’s mark “NISE”. The defendant also argued that they had been using the mark “RIKONISE-P” for a long period of time without any objection from the plaintiff and that their use of the mark was honest and in good faith.
The parties also contested whether the plaintiff was entitled to any damages, the account of profits or any other relief for the alleged infringement and passing off.
Finally, the parties attempted to resolve their dispute through mediation, with the Delhi High Court Mediation and Conciliation Centre intervening to facilitate the settlement agreement. The contention was whether the settlement agreement was acceptable to both parties and could resolve the dispute between them.

JUDGMENT:

The dispute was resolved with the intervention of the Delhi High Court Mediation and Conciliation Centre, and a settlement agreement was reached between the parties. The terms of the settlement agreement were as follows:

1. The defendant acknowledged the plaintiff’s exclusive proprietary rights in the trademark “NISE” and agreed not to challenge the plaintiff’s statutory and proprietary rights directly or indirectly in India or globally.
2. The defendant confirmed that they had stopped manufacturing and using the mark ‘RIKONISE-P’ or ‘NISE-P’, directly or indirectly in medicinal and pharmaceutical preparations of suspension syrups for domestic sale in India or for export, as per the directions passed by the Hon’ble High Court of Delhi vide order dated 22/07/2022 in CS (COMM) No. 495 of 2022.
3. The defendant confirmed that they had manufactured tablets and capsules under the mark ‘RIKONISE-P TABLETS’ for domestic sale in India and that they had agreed to stop the manufacture and use of tablets under the mark ‘RIKONISE-P TABLETS’.
4. The defendant agreed not to manufacture any fresh batch of products bearing the mark ‘RIKONISE-P’ and ‘RIKONISE-P TABLETS’ and declared that any further production would make them liable for cost and damages.
5. The defendant confirmed that they did not have in stock any further products, packaging, or printed material bearing the mark ‘RIKONISE-P TABLETS’ and ‘RIKONISE-P’ in India, and any unused printed material would be destroyed by the defendant at their own cost.
6. The defendant agreed not to use in future any mark containing the mark “NISE” or “NICE”.
   The defendant undertook to apply to cancel their registration for the mark “RIKONISE” in class 5 within 30 days of recording of these settlement terms.
7. The defendant undertook not to adopt any mark in future that is identical or deceptively similar to the plaintiff’s mark “NISE” or carry out any such activities as may be likely to cause confusion or deception amounting to, passing off their goods under captioned Trademark as and for that of the plaintiff.
   

The settlement agreement was binding on both parties, and the Delhi High Court decreed the suit in terms of the mediation settlement agreement. The plaintiff was entitled to a refund of court fees, if any, deposited by them. The settlement agreement resolved the trademark dispute between the parties amicably and avoid prolonged litigation.

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-Report by Harshit Yadav

This judgement concerns a petition filed by M/s InterarchBuilding Products Pvt. Ltd. seeking to quash an order passed by the learned MM (NI Act, Patiala House Courts, New Delhi) in Criminal Complaint bearing number 10567/2020. The complaint was filed by the respondent, alleging that M/s Swift Construction Expert (the accused firm) had approached the respondent in January 2019 for the design, engineering, fabrication, supply, and erection of a pre-engineered steel building. The petitioner is seeking quashing of the complaint and the order taking cognizance of an offence under Section 138 of the Negotiable Instrument Act.

FACTS:

A complaint was filed by M/s Interarch Building Products Pvt.Ltd. against M/s Swift Construction Expert, a partnership firm, for dishonour of two cheques issued towards payment of outstanding dues.

The complainant alleged that after the acceptance of the proposal, the accused firm had issued a revised purchase order and further bills and invoices were raised.

The accused firm released a part payment of Rs. 50,00,000/- through RTGS and asked the complainant to present two post-dated cheques for the balance payment of Rs. 61,00,000/-. However, both cheques were dishonoured.

The complaint was filed under Section 138 of the Negotiable Instrument Act against the accused firm and its partners, including the petitioner, Ridhima Jain, who was shown as Accused No. 3.

Issues:

Whether the petitioner, who is the wife of Accused No. 2 and not a signatory to the cheques, can be made accused and held liable for the dishonour of cheques only for accompanying her husband on a few occasions.

Whether the person who is not a signatory to the cheque can be held liable for its dishonour under Section 138 of the Negotiable Instrument Act.

Whether the petitioner, who actively participated in the execution of the purchase/works order and acted on behalf of the accused firm, can be held liable for the dishonour of cheques.

Whether the petitioner is a partner in the accused firm and responsible for the conduct of its business and can be proceeded against under Section 141 of the Negotiable Instrument Act.

Petitioner’s Contentions:

Petitioner (Ridhima Jain) is not the signatory of the impugned cheques and is not a partner in the accused firm. The account from which cheques were issued was not a joint account.

Petitioner cannot be made accused and liable for the dishonour of cheque only for the reason that she used to accompany her husband on a few occasions.Section 138 of the Negotiable Instrument Act, the person who is not signatory to the cheque cannot be held liable for its dishonour. Even in terms of Section 141 of the Negotiable Instrument Act, it is only the person in charge and responsible for the conduct of the business of the company who shall be deemed to be guilty of the offence and is liable to be proceeded against.

RESPONDENT’S CONTENTIONS:

Arguments raised are a matter of trial and should be addressed before the learned Trial Court.

The petitioner has actively participated in the execution of the purchase/works order, communicated with the respondent company through e-mails, and acted on behalf of the accused firm.

The petitioner is a partner in the accused firm.

The petitioner, having actively participated in the execution of the purchase/work order, was also responsible for the conduct of the business of the firm.

JUDGEMENT:

The petitioner has filed a petition seeking to quash the order passed by the learned Magistrate (NI Act, Patiala House Courts, New Delhi) in a criminal complaint filed by the respondent under Section 138 of the Negotiable Instrument Act. The complaint alleged that the accused firm had issued two cheques which were dishonoured, and the petitioner, who is one of the accused, is also responsible for the same.

The petitioner has submitted that he cannot be held liable for the dishonour of the cheques as he is not a signatory to them. He further submitted that under Section 141 of the Negotiable Instrument Act, only the person in charge and responsible for the conduct of the business of the company can be held liable.

The respondent argued that the petitioner actively participated in the execution of the purchase order, communicated with the respondent company, and acted on behalf of the accused firm. The respondent further denied the fact that the petitioner is not a partner in the accused firm.

The court held that the petitioner’s arguments are matter of trial and should be addressed before the learned Trial Court. The court further noted that the petitioner actively participated in the execution of the purchase order, and was responsible for the conduct of the business of the accused firm. The court also noted that the learned Trial Court had found the petitioner to be a partner in the accused firm.

Therefore, the court rejected the petitioner’s petition seeking to quash the order passed by the learned Magistrate, and held that the matter should be addressed before the learned Trial Court.

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-Report by Arun Bhattacharya

In the matter of M/S WELL PROTECT MANPOWER SERVICES PVT. LTD. versus DELHI DEVELOPMENT AUTHORITY & ANR the High Court of Delhi on Wednesday 22^nd of February, reiterated the fact “it is now well settled that the power to blacklist the contractor is inherent in the party allotting the contract”. 

FACTS:

The petitioners were successful bidders regarding an e-tender floated by the respondent which dealt with engaging security guards and security personals for a period of one year. Agreement was signed between the parties and according to its terms a 2015 work order was to be followed in the present matter too but issue arose when a show cause notice was issued against the petitioners alleging a failure of submission of necessary training certificates thus violating the Private Security Agencies (Regulation) Act, 2005. With such allegations of the forefront, the petitioner had requested back the deposit money from the respondents along with a request to not take any action related to blacklisting or restraining them from further bidding. But the respondents had issued an order thereby blacklisting the petitioners who in turn filed the present writ petition challenging the same. 

PETITIONER’S CONTENTION:

The petitioner primarily highlighted the non-necessity of providing such training certificates with respect to the aforementioned work order and that the principles of Natural Justice was violated by the respondents while debarring the petitioners from further biddings. More so, the petitioner expressed dissatisfaction regarding the arbitrary and disproportionate decision to bar them for a period three years.

RESPONDENT’S CONTENTION:

The respondents while refuting all the claims of the petitioners stated that the requisite of training certificates were mandatory and perfectly in compliance with law prescribed and the work order provided. It was highlighted that the decision of blacklisting was taken on the basis of repeated failures on part of the petitioner who was unable to justify their position even after receiving repeated opportunities. Thus a breach of such contractual obligations was enough to justify their stand of debarring the petitioner.

JUDGEMENT:

The honorable court referring to multiple decisions like M/s Erusian Equipment & Chemicals Ltd. Vs. State of West Bengal and Another (1975) 1 SCC 70 and Joseph Vilangandan v. Executive Engineer (PWD) [(1978) 3 SCC 36] reiterated the stand taken by the Supreme Court that power to blacklist any party remains with the person providing such contract and that such decision of blacklisting shall remain beyond the purview of appellate judicial authorities, except in circumstances when the principles of natural justice are violated. The honoroble  court highlighted the inability or noncompliance on part of the petitioner regarding non submission of certificates which was a requisite according to law prescribed but also pointed out the arbitrariness on part of the respondents regarding the debarment of the petitioners for a period of three years. Such debarment could only have arisen in cases of grievous offences as prescribed by the Ministry of Finance. Therefore referring to certain other judgments by the same court, the Delhi High Court quashed the impugned order and disposed of the petitioner making room for fresh inquiry regarding the same matter. 

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-Report by Shreya Gupta

The petition and respondent in this case is SMT. SUNITA GARG and M/S SCRAFT PRODUCT P LTD respectively. The case arose due to the arbitration clause in the lease agreement.

FACTS:

The present case has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 in order of appointment of an arbitrator. The dispute has risen between them due to a lease deed according to which the petitioner is the owner of the property and the respondent is the tenant. The tenant had approx. 25000 sq. feet on ground floor, 25000 sq. feet on first floor, total area 50000 sq. feet which also included the mezzanine floor sides, washroom and rooms at the back, genset panel and the sundry assets area etc. at a monthly rent of Rs. 8,00,000/- exclusive of all other charges.

PETIONER’S CONTENTION:

The petioner contended that the respondent is a defaulter in payment of rents and he is required to pay arrears of rent amounting to Rs.29,49,350/-.

RESPONDENT’S CONTENTION:

The respondent contends that the clause 25 in the lease deed does not constitutes an arbitration agreement rather it states an alternative to reach to the Delhi high court. He also draws attention to the clause 27 of the agreement. He contends further that when cluse 25 is read with clause 27 it gives the option to either invoke arbitration or to approach a civil court for getting the leased premises vacated in the event of any violation or infringement on the part of the lessee, whereas, for the purpose of the claims of the respondent, no such option has been given. He further takes support of the previous judgements of Wellington Associates Ltd. vs. Kirti Mehta and Shri Chand Construction and Apartments Pvt. Ltd and Ors. Vs. Tata Capital Housing Finance Ltd.

JUDGEMENT:

The court stated that “ the contention of learned counsel for the respondent that Clause-25 in the said lease deed gives an option to the petitioner/lessor to either take recourse to the arbitration or pursue her remedies in a court of law, is misconceived and is based on a misreading of the Arbitration Clause. The clause unambiguously provides that any disputes arising with regard to “interpretation and/or implementation of terms and conditions of this deed the same shall be referred to an arbitrator under the Arbitration and Conciliation Act, 1996, whose decision shall be final and binding on both the parties‖. The later part of the clause i.e., the words “and/or the same may be defended subject to Delhi Court Jurisdictions only”, are evidently, intended to convey that any decision of the arbitrator would be subject to jurisdiction of the Delhi Courts. The Clause cannot be construed as giving an option to any party to either take recourse to arbitration or alternatively, file a civil suit.” The court stated that the reliance placed on the previous judgements is completely misconceived. The court appointed Mr. Vikas Gupta as the sole arbitrator in this case.

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Neutral Citation Number: 2023/DHC/001285