Read Order: T.Lakshmi v. M.Vasantha And Ors
Tulip Kanth
Chennai, April 2, 2022: Refusing to condone the delay of over 2,500 days in filing the appeal, the Madras High Court has held that a citizen who “slept over his right” cannot approach the Court after an unacceptable delay for redressal of his grievances.
The Bench of Justice S.M.Subramaniam said, “Uncondonable delay cannot be condoned in a routine manner. Law of limitation is substantive. Litigations / appeals are expected to be filed within the period of limitation as contemplated under the Statutes. Rule is to follow limitation. Condonation of delay is an exception. Exceptions are to be exercised discreetly, if the reasons furnished are genuine and acceptable.”
“Any citizen, who slept over his right, cannot wake up one fine morning and knock the doors of the Court for redressal of his grievances. The person, who slept over his right, has to necessary loose his right on account of efflux of time, which caused expiry of the cause,” the bench said.
The Civil Miscellaneous Petition in question, was filed to condone the delay of 2575 days in filing the second appeal.The petitioner stated that she is a senior citizen and suffering from ailments. Therefore, she could not come over to Madurai and make arrangements for filing appeal.The Counsel from her side stated that the appeal was presented into the Court as early as on July 31, 2008, but the appeal papers could not be traced out in the office of the Court for long years as the papers were returned.
The Bench noted that a perusal of the entire case bundle revealed that there was no proof to establish that the appeal was filed on the said date. Contrarily, one vakalatnama of Sri.M.S.Balasubramania Iyer was available in the case bundle, which showed that the said vakalat was filed on October 16, 2015. However, there was no SR number or other details available in the vakalat to establish that the vakalat was properly filed before the Court.
On this apsect, the Bench stressed on the fact that mere affixing a seal of the Madras High Court was insufficient as such filing of papers must be registered in the appropriate register maintained by the Registry. Even other wise also, the said vakalat was filed in the year 2015 and not in the year 2008. Except this reason, there was no other reason available in the petition.
Expounding the law relating to condonation of delay, the Bench commented, “The Courts are expected not to travel beyond the permissible extent, so as to condone the enormous delay in a routine or mechanical manner. Power of discretion is to be exercised to mitigate the injustice, if any occurred to the litigants.”
Mentioning the important mitigating factors to be considered while condoning the huge delay in instituting the litigations / appeals, the Justice Subramaniam added that the law of limitation has got a definite reasoning and logic.This law has to be followed scrupulously in all circumstances and on exceptional cases, the delay is to be condoned, if the reasons are genuine and acceptable.
According to the Court, once the delay petition is filed, it is to be dealt with independently by considering the reasons furnished by the petitioner. If the reasons are candid and convincing, then the petitions are to be considered. However, condonation of delay cannot be allowed merely based on the merits in the main appeal as it is not a trite law to follow.
However, the Bench affirmed that in certain circumstances, the Courts can take a lenient view if the reasons are genuine and if the delay is about three months or upto five or six months but not in respect of longer delay. Keeping these facets into consideration, the High Court dismissed the Civil Miscellaneous Petition.
Read Order: CHANDRA DARSHAN DEVELOPERS THROUGH PARTNER v. HIRALAL GOPALBHAI
LE Correspondent
Ahmedabad, April 1, 2022: Considering the circumscribed power of the Appellate Court in interfering with the discretionary order of the Trial Court, the Gujarat High Court has confirmed the order passed by the Additional Chief Judicial Magistrate restraining the defendants from selling or mortgaging the suit property.The High Court opined that the Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material.
Being aggrieved with the impugned order passed by the Principal Senior Civil Judge and Additional Chief Judicial Magistrate, Kathor, whereby the defendants had been restrained from selling, transferring, mortgage ng or passing any interest to third party in the suit property, the original defendants (appellants) had preferred this Appeal under Order 43 Rule 1 (r) of Code of Civil Procedure.
In this case, the plaintiff had preferred the aforesaid suit for cancellation of the sale-deed on the ground of non-payment of consideration as well as for declaration of injunction pertaining to the land in question. According to the plaintiff, a sale-deed was registered between the parties for the land in question for consideration of Rs.11,53,27,800 but he did not receive the entire sale consideration and out of the said sale transaction, Rs. 6 crore had already been returned to the defendants as the defendants had some financial difficulties at the relevant time.
The plaintiff mainly contended that since the entire consideration amount was not paid, the title in the property had not been passed in favour of the defendants and they had also committed fraud. It was submitted that the defendant was trying to sell out the property to a third party. An application for interim injunction under Order 39 Rule 1 & 2 read with Section 151 of CPC was also moved by the plaintiff.
The Bench of Justice Dr A.P. Thaker was of the opinion that the object of the interlocutory injunctions is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated.
“The Court must weigh one need against another and determine where the “balance of convenience lies”. The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie”, said Justice Parekh.
Talking on the aspect of the Appellate Court’s power, the Bench noted that Appellate Court may not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions.
The Bench said, “An appeal against exercise of discretion is said to be an appeal on principle. The Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by the court was reasonably possible on the material. The appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion”.
After perusing the facts of the case, the Bench found that all the cheques had been credited in the Account of the plaintiff in the year 2016 and certain cheques had been credited in the year 2018 i.e. after almost 2 years of the execution of the sale deed.
The Bench noted that as the defendants had asserted that there was another transaction between the parties, then it was for the defendants to show that for which transaction Rs 6 crore had been returned back to it. It also appeared from the record that plaintiff was relying upon one Sauda Chithhi, which was unregistered.
Referring to one MOU entered into between the parties during the pendency of the suit, the Bench held that the defendant had accepted by way of MoU that no full consideration was yet paid and sale deed was executed on the trust and for the convenience of the defendants. So, under such circumstances, the title of the defendant was under the cloud.
Considering the facts of the case and especially the MoU entered into between the parties, Justice Parekh concluded that the view taken by the trial Court couldnot be said to be unreasonable or illegal or arbitrary.Thus, this appeal was dismissed.
Read Order: P……… Minor Through Vikram v. State Of Haryana And Others
Monika Rahar
New Delhi, April 1, 2022: While dealing with a batch of protection petitions by minors filed through their live-in-partners (major), the Punjab and Haryana High Court has held that the enunciation of the statutory framework in the nature of the Juvenile Justice (Care and Protection of Children) Act 2015 and Protection of Children from Sexual Offences Act (POCSO Act) do not run contrary to Article 21 of the Constitution of India.
The Bench of Justice Vinod S. Bhardwaj added that the Court cannot be oblivious to the duty cast upon it as a repository of the best interest of the minor and there can be no presumption that once a minor conveys his/her desire to stay with any person and that such person claims to be the next friend/de facto guardian, the same would actually and in reality be in furtherance of the best interest of the minor.
Thus, Justice Bhardwaj termed these minor petitioners as “child(ren) in need of care and protection” and ordered Police protection for them while holding that determination of what would be in the best interest of the minor has to be done by the Court as per the procedure known to law. The Court also directed the aid of machinery set up for such children under the provisions of the JJ Act.
In this batch of petitions, the Court encountered an issue related to striking a balance between the Constitutional right to life as enshrined under Article 21 and statutory obligation as cast under the JJ Act. The minors/ petitioners approached the Court through their “self-proclaimed next friends/ guardians”, after having abandoned their natural guardians.
In one of the petitions, the Court was approached by a minor (aged 16 years and 5 months) through one Vikramaged 28 years, seeking a writ in the nature of Mandamus to protect her life and liberty as also that of her friend Vikram. The petitioner was in a live-in-relationship with the said Vikram and she was aggrieved by her parents’ decision to marry her off to an older boy without her consent. Thus, the petitioners invoked Article 21 of the Constitution of India to seek protection.
The petitioners’ counsel submitted that solemnization of marriage is not a pre-requisite for seeking protection of life and liberty once such an apprehension exists, a person would be entitled to claim the protection of her rights guaranteed under Article 21 of the Constitution of India. It was also added that the said right cannot be confined or denied on the touchstone of the Hindu Marriage Act or the JJ Act.
After considering the rival submissions, the Court opined that the law recognizes the guardians of the following types, namely, natural guardian; testamentary guardian; guardians appointed/declared by the Court; a person empowered to act as such by or under any enactment relating to any Court of Wards; an affinity (pre-1956 Hindu Law- guardian of a minor widow); and a de-facto guardian. Elaborating upon the law governing guardianship, the Court made reference to the relevant provisions of the Hindu Minority and Guardianship Act, 1956 [Sections 4, 6 and 13]; the Guardians and Wards Act 1890 (Sections 4, 7 and 8); the Indian Majority Act 1875 [Sections 2(a), 3]; the JJ Act [Section 2(14)(vii)(xii)].
After having undertaken a perusal of the relevant provisions in these laws, the Court opined that the persons through whom the present petitions were filed did not fall in any of the categories of the guardians recognized under the Hindu Minority and Guardianship Act 1956 or under the Guardian and Wards Act, 1890. Also, the Court added that due to the absence of a long-standing relationship between the minors concerned and their “self-proclaimed” guardians, the Court could not term them as de-facto guardians.
The Court held in this respect,
“Continuity of interest is an essential pre-requisite to be satisfied before a person can be deemed or be termed as a de-facto guardian.”
Next, addressing the inter-place of the framework of special statutes like the JJ Act and the POCSO Act with the Right to Life and Personal Liberty as enshrined under Article 21 of the Indian Constitution, the Court opined that the enunciation of the statutory framework in the nature of the JJ Act and the POCSO Act, do not run contrary to the provisions enshrined under Article 21 of the Constitution of India. The Court asserted that the protection of life and liberty guaranteed to a citizen necessarily ensures that the Court of law, when approached, would step into the shoes of a guardian of such a minor and take all such steps as are essential to protect the life and liberty of such a minor.
“The said Acts are intended to ensure the advancement of Article 21”, opined Justice Bhardwaj.
The Court went on to add that the Court of law, while issuing any directions to follow the procedure provided for under the JJ Act does so with an object to ensure the safety and protection of a minor, who the law does not recognise as having acquired the wisdom and knowledge to take best decisions for himself/herself and it cannot be deemed as violative of Article 21 of the Constitution of India on the ground that such a decision will not be in conformity with the interest which such a minor conceives to be in his/her best interest.
Reflecting on the duty of the Court towards these minor petitioners, the Court opined that the Court cannot be oblivious to the duty cast upon it as a repository of the best interest of the minor and there can be no presumption that once a minor conveys his/her desire to stay with any person and that such person claims to be the next friend/de facto guardian, the same would actually and in reality be in furtherance of the best interest of the minor.
The Court, thus, has to take upon itself the responsibility to ensure that the fundamental right of such a minor to claim the protection of his/her life and liberty is made available and also to ensure that in the said process, the protection of the statute is not violated.
Thus, the Court issued a batch of directions. The SSP/SP of the respective districts were directed to depute a Child Welfare Police Officer to produce the minor/child before the Committee constituted under the JJ Act as the minors concerned fell under the category of children in need of care and protection as provided under section 2(14)(vii)(xii) of JJ Act. The respective Committees were directed to conduct a Section 36 (of JJ Act) inquiry and to pass an appropriate order under section 37 of the JJ Act.
The Child Welfare Committee was directed to ensure proper arrangements for the safety and welfare of the children concerned. Also, during the pendency of the aforesaid inquiry, the Court directed the Welfare Committee to take appropriate interim decisions as regards placement of a child/custody of the child in need of care and protection.
Next, addressing the welfare concerns of the petitioners, the Court directed the concerned SSPs/SPs to take appropriate steps as warranted by law against the threat perception to the minor as well as to their next friends and to ensure that the respective petitioners were protected from any physical harm at the instance of the respondents in respective cases. Lastly, the Court directed the Child Welfare Committee to submit a compliance report before the Court.
Read Order: M/S RAVI RANJAN DEVELOPERS PVT. LTD v. ADITYA KUMAR CHATTERJEE
Mansimran Kaur
New Delhi, April 1, 2022: The Apex Court recently observed that an application under Section 11 (6) of the Arbitration and Conciliation Act for the appointment of an Arbitrator cannot be instituted before any High without considering the fact that the cause of action arose within the territorial jurisdiction of the said High Court
A Bench comprising Justices Indira Banerjee and A S Bopanna was dealing with a Special Leave Petition against an order of the Calcutta High Court, allowing an Arbitration Petition under Section 11 (6) of the Arbitration and Conciliation Act, 1966 for appointment of an Arbitrator.
The question of law raised in the appeal was whether the Calcutta High Court had jurisdiction to entertain the application when no part of the cause of action arose within the jurisdiction of the Calcutta High Court.
In the present case, the Development agreement was executed and registered outside the jurisdiction of the High Court of Calcutta. The agreement was in relation to a development of property in Muzzafarpur which is pertinently outside the Jurisdiction of the Calcutta High Court. Moreover, the Appellant has its registered office in Patna, which is again outside the Jurisdiction of the Calcutta High Court.
The Apex Court outright rejected the submission of the Calcutta High Court stating that it is very well within the jurisdictional limits to entertain the application that was filed before it, reason being that the seat of Arbitration is in Kolkata. The Court observed that parties had no intention to refer their disputes to the jurisdiction of the Courts in Kolkata. Kolkata was not to be even the seat of arbitration for the parties. The fact was simply this that Kolkata was the venue for the arbitration sittings.
Moreover the Respondent approached the Muzzafarpur District Court and not the Court in Kolkata for seeking interim protection. It is also pertinent to note that the Respondent himself invoked the jurisdiction of the District Court at Muzzafarpur and hence by law of estoppels cannot contend that the parties had conceded to the exclusive jurisdiction of the Calcutta High Court. Also no clause in the agreement indicates that the parties had the intention to choose the seat of Arbitration at Kolkata.
Thus the Court was of the view that the Calcutta High Court was vividly beyond the jurisdiction to entertain the application for the appointment of an Arbitrator under Section 11(6) of the Arbitration Act.
“It could never have been the intention of Section 11(6) of the Arbitration and Conciliation Act that arbitration proceedings should be initiated in any High Court of India, irrespective of the fact whether the Respondent resided or carried on business within the jurisdiction of that High Court, and irrespective of whether any part of the cause of action arose within the jurisdiction of that Court, to put an opponent at a disadvantage and steal a march over the opponent,” the bench said.
Read Order: SARANPAL KAUR ANAND v. PRADUMAN SINGH CHANDHOK AND OTHERS
Mansimran Kaur
New Delhi, April 1, 2021: A bench of the Supreme Court recently dealt with an appeal wherein the judges pronounced their respective observations. Justice Sanjiv Khanna and Justice Bela M Trivedi basically lacked consensus – ad idem (meeting of minds) in the matter of rejection of the present appeal under Order VII Rule 11 (d) of the Code of Civil Procedure as the same is barred by time.
A civil suit was instituted by the plaintiff Saranpal Kaur Anand in 2012 with the objective of declaring a sale deed as “sham, illegal, and null and void”.
The proposition of law that was to be decided was “Whether the suit as framed is liable to be rejected under Order VII Rule 11 (d) of the CPC on the ground of limitation”?
By the order of 6 April, 2015, the Single Judge decided the preliminary issue by observing that the suit is barred by time and hence the plaint stands to be rejected. The applications for amendment filed by the plaintiff were also dismissed on the ground of being malafide and not maintainable.
Thereafter the High Court Bench via its order dated 25th April dismissed the appeal preferred by the plaintiff and upheld the order of rejection on the ground that it was filed beyond the period of limitation.
Aggrieved by the same the plaintiff approached the Apex Court as the appellant.
The plaintiff/ appellant produced Section 17 of the Limitation Act, which states that in case of fraud, the limitation period will commence only after the fraud comes to the knowledge of the plaintiff/appellant and therefore contended the plaint is not barred by time.
Justice Khanna was of the view that the plaintiff/appellant had prior knowledge pertaining to the sale deed of 1969 even before 2008. It was further noted that as per the law of pleadings, the plaintiff has to make specific averments concerning fraud with particulars relating to dates.
In the words of Justice Khanna, “It is apparent that the plaintiff was aware and had knowledge in October 2008 about execution and transfer of ownership rights in favor of late Tej Kaur vide sale deed dated 23rd August, 1969 executed by defendant No. 3, Gurdev Singh Anand. Unadorned assertion in the plaint feigning ignorance as to the sale deed would not help, as in the facts as pleaded and accepted in the plaint, the plaintiff was required to state and indicate that ignorance was not due to failure to exercise reasonable diligence”.
On the contrary Justice Trivedi remarked that the application of Section 17 in the present case is a mixed question of law and facts. Referring to plethora of pronouncements, Justice Trivedi observed that “whether a suit is barred by any law or not must be determined from the statements made in the plaint and it is not open to decide the issue on the basis of any other material including the written statement filed in the case”.
Therefore Justice Trivedi ordered for the restoration of the suit after setting aside the impugned judgments.
However Justice Khanna upheld the observations made by the lower courts stating that the present appeal is liable to be rejected under Order VII Rule 11(d) of CPC.
Since the Bench had different findings and made different observations, the matter was referred to the Hon’ble Chief Justice in order to reach to a conclusion.
Read Order: Aruna Sharma v. State of Punjab & Others
Monika Rahar
New Delhi, April 1, 2022: While dealing with a case wherein the petitioner filed a writ petition for claiming interest on delayed payment of arrears of proficiency step-up 12 years after his retirement, the Punjab and Haryana High Court has held that the petitioner is “a fence-sitter who slept over his rights”.
“The benefit of interest as claimed by the appellant who slept over his rights, had been totally indolent, is untenable”, held Justices G. S. Sandhawalia And Vikas Suri. The bench also held that the law is settled that dead issues cannot be allowed to be raked up time and again.
The Court was dealing with the Present letters patent appeal directed against the order of the Single Judge in a Writ Petition denying the benefit of interest on the delayed payment of arrears of proficiency step-up, to the appellant-writ petitioner.
In this case, the petitioner took his retirement in the year 2003 and two years later, in 2005 he served a legal notice upon the respondents asking for the benefit of interest onthe delayed payment of arrears of proficiency step-up. Thereafter, after being indolent for about 10 years, the petitioner filed a writ petition in 2015 seeking the same relief. This Writ led to the issuance of directions to the respondent to decide the legal notice within a period of four months.
While filing the 2015 Writ Petition, the petitioner placed heavy reliance on Varinder Pal Vs. State of Punjab & Others, CWP-6135-2003 (P&H HC) whereby the benefits of proficiency step up after completion of 24/32 years of service under the Assured Career Progression Scheme with all consequential benefits had been granted to the petitioner in that case.
Primarily, the appellant’s counsel relied upon the judgment of the Full Bench in A. S. Randhawa, Supdg. Engineer (Retd.) Vs. State of Punjab to submit that on account of delay the petitioner was entitled to the benefit of interest and thus the Single Judge was not correct in denying the said benefit. Further, while placing reliance on A.S.Randhawa (supra) itself, the counsel contended that the provisions of CPC would not be strictly applicable to the proceedings in the Writ Court. It was further contended that the payment was made only in the year 2016 after directions were issued by the High Court and thus the appellant was entitled to the benefit of interest.
After considering the case advanced by the Petitioner’s counsel, the Court was of the considered opinion that the claim of interest on delayed payment at the cost of the State was totally unjustifiable.
Distinguishing the present case from the case of Varinder Pal (Supra), the Court opined that in Varinder Pal, the petitioner (therein) was well aware of his rights and approached the Court in 2003 immediately after his retirement in 2000, while the present petitioner, the Court held, was a fence sitter who slept over his and rights served the legal notice after a period of 2 years, and then only directions were issued and the amount was disbursed in the year 2016, in compliance of the orders of the Single Judge.
The benefit of interest as claimed by the appellant who slept over his rights had been totally indolent, is untenable, held the Court.
The Court also added that the Apex Court has time and again held that that the filing of representations would not revive the cause of action.
In this respect, the Court adjudged,
“Resultantly, the law is settled that dead issues cannot be allowed to be raked up time and again.”
Coming to the factual situation of the case, the Court noted that the benefits though were granted on directions issued in the earlier litigation filed by the writ petitioner but on account of his conduct, the claim for interest from the time the appellant retired in 2003 was not made but the litigation was thereafter initiated in 2015 and merely seeking the benefits granted to similarly situated person would not entitle him for the said claim.
Read Judgment: PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & ORS
Tulip Kanth
New Delhi, April 1, 2022: Observing that there is no substantial basis for classifying the VanniakulaKshatriyas into one group, to be treated differentially from the remaining 115 communities within the Most Backward Classes (MBCs) and Denotified Communities(DNCs), the Supreme Court has held that the Tamil Nadu Law providing 10.5% Vanniyar reservation quota in educational institutions and appointment in the services under the State, is in violation of Articles 14, 15 and 16 of the Constitution of India.
The Division Bench of Justice L. Nageswara Rao and Justice B.R. Gavai upheld the judgement of the Madras High Court whereby the Tamil Nadu Special Reservation of seats in Educational Institutions including Private Educational Institutions and of appointments or posts in the services under the State within the Reservation for the Most Backward Classes and DenotifiedCommunities Act, 2021, was declared unconstitutional.
The matter emanates from the time when the Madras High Court, in the year 1947, had declared communal representation as unconstitutional. Consequent to this judgment, the State of Madras adopted a 20-point roster, with seats reserved for Scheduled Castes and Scheduled Tribes and Backward Classes. Later in the year 1957, the State Government made a sub-classification amongst Backward Classes. Most Backward Communities were identified and educational concessions were extended to them.
Later, the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in Educational Institutions and of appointments or posts in the Services under the State) Act, 1993 (1994 Act) was enacted on March 21, 2012, the Government prescribed additional terms of reference to the Tamil Nadu Backward Classes Commission, requesting the Commission to examine and recommend upon the demand made by various communities to provide for internal reservation, within the reservation provided to MBCs and DNCs.
On June 13, 2012, a report was submitted by the Tamil Nadu Backward Classes Commission, chaired by Justice M.S. Janarthanam (retd.) of the Madras High Court recommending internal reservation of 10.5 per cent for the Vanniakula Kshatriyas, with the remaining six members of the Commission submitting a dissent note.
Justice M. Thanikachalam eventually recommended sub-categorization amongst the MBCs and DNCs based on the proportion of their population. On February 24, 2021, a bill for special reservation within the 20% reserved for MBCs and DNCs was passed and it received the assent of the Governor on February 26,2021.
By the 2021 Act, reservation of seats in educational institutions, including private educational institutions, and reservation in appointment or posts in the services under the State were provided in the following manner: 10.5 % for Part-MBC (V) Communities, 7% for Part-MBC and DNC Communities and 2.5% for Part-MBC Communities. In terms of the Schedule annexed to the 2021 Act, Part-MBC(V) consists of Vanniakula Kshatriya community (including Vanniyar, Vanniya, VanniaGounder, Gounder or Kander, Padayachi, Palli and Agnikula Kshatriya), Part-MBC and DNC comprise 25 communities from the MBCs and 68 DNCs and the remaining 22 communities of MBCs come under the category of Part-MBC.
Hence, writ petitions were filed in the High Court of Madras assailing the constitutional validity of the 2021 Act and the High Court declared the 2021 Act to be ultra vires the provisions of the Constitution.
The Bench was of the opinion that the object of the 2021 Act is to achieve equitable distribution of the benefit of 20% reservation provided to MBCs and DNCs.At the time of enactment of the 2021 Act, 116 castes were to be found in the cumulative lists of MBCs and DNCs.
The Apex Court observed that choosing a particular caste and providing a special reservation of 10.5% out of the 20% to such caste is discriminatory, in the absence of any sound differentiation from communities who are similarly situated and were, therefore, grouped together for the purposes of receiving the benefits of 20% reservation.
“While the State Government has the competence to classify the Vanniakula Kshatriyas or any other community or group of communities within backward classes as a particular class for the grant of special measures, there should be a reasonable basis for categorising such communities into a different section from the rest of the communities within the MBCs and DNCs, on grounds which cannot be superficial or illusory,” added the Bench.
Holding that the High Court had committed an error in holding that the 2021 Act is violative of Article 342-A., the Bench didn’t agree with the view that determining the extent of reservation for a community amongst the list of Most Backward Classes amounts to identification.
Clarifying that there is no bar to the sub-classification amongst backward classes, the Bench opined that as the 2021 Act dealt with sub-classification and apportionment of certain percentage of reservation for the purpose of determining the extent of reservation of communities within the MBCs and DNCs, it is a permissible exercise of power by the State Government under Article 342-A of the Constitution in terms of the judgment of this Court in Dr Jaishri Laxmanrao Patil v. Chief Minister.
Prior to the 105th Amendment Act, what was prohibited for the State to carry out under Article 342-A is the identification of SEBCs, by inclusion or exclusion of communities in the Presidential list of SEBCs. It is clear that the exercise of identification of MBCs and DNCs had been completed by the State pursuant to the 1994 Act, noticed the Court.
The Bench was also of the view that the 105th Amendment Act being prospective in operation, it wasthe 102nd Amendment Act which held the field at the time of enactment of the 2021 Act.
Affirming that that there is no bar on the legislative competence of the State to enact the 2021 Act, the Bench said, “Legislative competence of the State Legislature can only be circumscribed by express prohibition contained in the Constitution itself and Article 31-B does not stipulate any such express prohibition on the legislative powers of the State.”
Referring to the 1994 Act, the Court observed that detailing the extent of reservation for communities already identified as MBCs and DNCs, which is the thrust of the 2021 Act, cannot be said to be in conflict with the 1994 Act, as determination of extent of reservation for various communities was not the subject matter of the 1994 Act.
As regards the letter of Justice Thanikachalam, Chairman of the Tamil Nadu Backward Classes Commission, which formed the basis of the 2021 Act, the Bench found that the Government had committed an error in accepting the recommendations.
Thus, the Bench concluded the matter by saying, “Finally, on the 2021 Act, we are of the opinion that there is no substantial basis for classifying the VanniakulaKshatriyas into one group to be treated differentially from the remaining 115 communities within the MBCs and DNCs, and therefore, the 2021 Act is in violation of Articles 14, 15 and 16. We uphold the judgment of the High Court on this aspect.”
Concluding that the 2021 Act is ultra vires the Constitution, the Apex Court refrained from delving into the issue of non-compliance by the State Government with the consultation requirement prescribed under clause (9) of Article 338-B at the time of enactment of the 2021 Act.
Read Order: Vijay Kumar v. Union of India & Others
LE Correspondent
Chandigarh, April 1, 2022: While dealing with the grievance that the Tribunal declined the petitioner’sclaim for notional seniority above the fourth respondent, the Punjab and Haryana High Court has dismissed thepetition on the ground that the cause of action arose in 2003 and the first round of litigation was initiated by the petitioner in 2007, yet he raised his grievance of the benefit of notional seniority in 2014 by initiating the second round of litigation.
The High Court held that the principles of Order 2, Rule 2, CPC would kick, to the extent that the said relief (of claiming the benefit of notional seniority) was never claimed for in the earlier OA filed in 2007.
The Division Bench of Justices G. S. Sandhawalia and Vikas Suri held,
“… the cause of action has arisen way-back in 2003 on appointment of Neeraj Kumar and the earlier OA had been filed in the year 2007… At that point of time, the writ petitioner had chosen not to agitate for his grievance of benefit of notional seniority and in such circumstances, allowing the said benefit now would amount to opening up “Pandora’s Box”, as not only interests of one Neeraj Kumar would be involved but also a large number of persons appointed between Neeraj Kumar and the petitioner.”
The present writ petition, filed under Articles 226/227 of the Constitution of India was directed against an order (of 2016) passed by the Tribunal declining the claim of the petitioner for notional seniority above Neeraj Kumar, the fourth respondent, in the cadre of LDC.
In brief, the case of the petitioner was that he was appointed on compassionate grounds on account of his father’s death (dated August 12, 1994) while the death of Neeraj Kumar’s father took place in the year 2002 and thus both of them were placed in the seniority list for an appointment. It was further his case that the petitioner was placed at the third position on the seniority list in the year 2001, whereas Neeraj Kumar was placed at the twenty-second.
It was accordingly contended that Neeraj Kumar was wrongly given a compassionate appointment in 2003 in preference to the petitioner. Aggrieved, the petitioner approached the Tribunal which directed consideration of the petitioner’s case for compassionate appointment. The said order was unsuccessfully challenged by the respondents before the High Court of Jammu & Kashmir and the Supreme Court in form of an SLP.
It was submitted by the counsel for the petitioner that the provisional letter of appointment was offered to him in 2011, subject to the decision of the SLP. After the dismissal of the said SLP, he agitated his grouse by serving a legal notice in 2014 and thereafter, filed an Original Application (OA) in July 2015. It was thus contended that he could not be denied the benefit of notional seniority and the respondents could not take advantage of their own fault.
Here, it is to be noted that the Tribunal passed the impugned order by giving the reasoning that the petitioner was appointed in the year 2011 and therefore, he could be granted seniority from the date of entry in service and the legal notice for grant of the said benefit was filed on September 12, 2014, and as such notional seniority could not be granted in view of the facts of the case. It was also noticed that there was a considerable delay as the cause of action arose when the petitioner was appointed i.e. in the year 2011 and the benefit of notional seniority came to be agitated only by serving legal notice on September 12, 2014, and therefore, the filing of the Original Application was held to be delayed and time-barred.
On the other hand, the case of the respondents’ counsel was that there was a considerable delay to the extent that after his (petitioner’s) appointment in the year 2011 which was offered to him, he never raised the issue of notional seniority though the SLP was dismissed and only after a year later in July 2014 a legal notice was served. It was further submitted that the Tribunal was justified in dismissing the OA on this account also. Apart from that, it was argued that on an earlier occasion when the petitioner approached the Tribunal, the relief of notional seniority was not agitated and the only prayer made was for consideration of the case. It was submitted that once the relief was not claimed in the first instance, it could not be claimed in the second round of litigation.
After considering the rival submissions, the Court found substance in the case advanced by the respondents. On the factual aspects of this case, the Court opined at the outset that when the petitioner approached the Tribunal it was always open to him to seek the relief for appointment on compassionate ground and also the fact that he was entitled to seniority over and above Neeraj Kumar. The said claim, the Court noted, was not agitated in those proceedings and only a simple prayer was made for issuance of directions to consider his case for compassionate appointment.
Thus, the Court opined that the principles of Order 2, Rule 2, CPC shall come into play, to the extent that the said relief was never claimed for in the earlier OA (original application). The Court further added that it would not be proper to allow the petitioner to agitate for the same relief, in the second leg of litigation which he preferred not to claim in the first instance, after having secured the appointment in the year 2011.
Reliance in this regard was placed upon Union of India & others Vs. Major S.P. Sharma & others wherein it was held that sanctity is to be given to finality of judgments and it is not permissible to reopen the concluded judgments of the Court, as it would tantamount to an abuse of the process of the Court and would have an adverse effect on the administration of justice.
Against this backdrop, the Court opined that the cause of action arose way back in 2003 on the appointment of Neeraj Kumar and the petitioner did not agitate his grievance of the benefit of notional seniority for the first time when he filed the earlier Original Application in the year 2007 which was adjudicated in 2008.
Thus, the Court opined that in such circumstances, allowing the said benefit now would amount to opening up “Pandora’s Box”, as not only the interests of one Neeraj Kumar would be involved but also a large number of persons appointed between Neeraj Kumar and the petitioner.
Accordingly, the petition was dismissed.
Read Judgment: SHRIPATI LAKHU MANE v. THE MEMBER SECRETARY, MAHARASHTRA WATER SUPPLY AND SEWERAGE BOARD & ORS
Tulip Kanth
New Delhi, April 1, 2022: Holding that the Bombay High Court was clearly in error in overturning the judgment of the Trial Court with regard to certain claims on a wrong understanding that there was abandonment of contract on the part of the appellant-contractor, the Supreme Court has clarified that a refusal by one party to a contract may entitle the other party either to sue for breach or to rescind the contract and sue on a quantum meruit for the work already done.
The Division Bench of Justice V. Ramasubramanian and Justice Hemant Gupta said, “ It is fundamental to the Law of Contract that whenever a material alteration takes place in the terms of the original contract, on account of any act of omission or commission on the part of one of the parties to the contract, it is open to the other party not to perform the original contract. This will not amount to abandonment.”
The factual background of this case was that the appellant, a registered contractor with the Government of Maharashtra, was issued with a work order for the execution of the work of Regional Rural Piped Water Supply Scheme for Dabhol-Bhopan and other villages in Ratnagiri District, at the cost of Rs.80,45,034. The time for the completion of the work was stipulated as 30 months but the Engineering Works Division issued a letter informing the appellant that the work order was kept in abeyance.Later, the appellant was informed to start the work.
When the Contractor started executing the work, repeated orders were issued by the Superintending Engineer and the Works Division(second & third respondents) asking the Contractor to modify the construction work at various places and also in some instances, to change the place of construction. The bills raised by him were not honored in time due to shortage of funds and the appellant did not proceed with the work.
As a result, the second respondent issued a threat to withdraw the work order and also to levy a fine of Rs 10 per day from March 1, 1988. Ever since then, the parties were at loggerheads, which ultimately led to the appellant filing a suit for recovery of a sum of Rs 51,35,289.This claim for the aforestated sum was made under various heads such as value of the work done, release of the security deposit, compensation, damages etc.
Eventually, the Trial Court, decreed the suit partially, directing the respondents to pay to the appellant, a sum of Rs. 24,97,077 together with interest at 10% per annum from the date of the suit till realization. Aggrieved by the decree so granted, the respondents filed a regular civil appeal under Section 96 of the Code of Civil Procedure, 1908 on the file of the Bombay High Court and the High Court allowed the appeal partially and reduced the decree amount to Rs.7,19,412. Hence, the plaintiff had come up with this appeal.
The appeal in question was actually confined to 3 heads of claims namely, the release of security deposit, over-heads for the period from January 1989 to September 30,1990 and loss of profits, which were disallowed by the High Court.
The only issue that arose for consideration was if there was abandonment of work by the appellant as the main reason why the High Court rejected the claims under the aforesaid 3 heads, was that the appellant had abandoned the work under the main contract.
After considering the entire sequence of events, the Top Court held that the appellant was not guilty of anything including abandonment. Admittedly, Clause 3(a) of the contract enabled the respondents to rescind the contract, forfeit the security deposit and entrust the work to another contractor at the risk and costs of the appellant. This clause was never invoked by the respondents. Therefore, the Court was surprised as to how the High Court could have found the appellant guilty of abandonment, especially in the light of the communications between the parties.
Speaking for the Bench, Justice Subramanian noted that the respondents issued the work order on July 3,1986 but directed the work order to be kept in abeyance by a subsequent letter dated July 28,1986. After this, stalemate was lifted by a letter dated December 17, 1986 and two things happened namely, a change in the diameter of the pipes supplied by the respondents for carrying out the contract and request for the performance of additional work without finalization of the modified rates. So, the respondents could not even accuse the appellant of non-performance of the contract.
Observing that refusal of the Contractor to perform the obligations, can perhaps be termed as breach of contract and not abandonment, the Bench stated, “The refusal of a contractor to continue to execute the work, unless the reciprocal promises are performed by the other party, cannot be termed as abandonment of contract.”
According to the Court, the respondents made it difficult for the appellant to execute the contract as per the terms originally agreed as they did not choose the option of rescinding the contract and suing for damages in terms of clauses 3 (a) and (b) of the Contract.
During the pendency of the first appeal before the High Court, the respondents deposited a sum of Rs.42,98,168 towards the amount decreed by the Trial Court and the amount deposited by the respondents before the High Court was withdrawn by the appellant by furnishing a bank guarantee. Thus, while allowing the Appeal and restoring the decree of the Trial Court, the Bench also discharged this Bank Guarantee.
Read Order: Parmod v. State of Haryana
LE Correspondent
Chandigarh, April 1, 2022: The High Court of Punjab and Haryana has granted bail to a person implicated as an accused in a case registered against him under Sections 306, 498-A, 506 of the Indian Penal Code, 1860, for allegedly harassing his wife, which eventually led her to commit suicide.
The Bench of Justice Suvir Sehgal held,
“… this Court is of the view that complicity of the petitioner in the crime would remain subject matter of debate before the Trial Court and the petitioner, who is in custody for more than 08 months and enjoys an unblemished past, would be entitled to be released on bail as the trial is likely to take time to conclude.”
The instant petition was filed under Section 439 Cr.P.C. seeking grant of regular bail to the petitioner in an FIR registered against the petitioner under Sections 306 (abetment to suicide), 498-A (husband or relative of husband of a woman subjecting her to cruelty.), 506 (criminal intimidation) of Indian Penal Code, 1860.
The present FIR emanated from a complaint lodged by the brother of the deceased alleging that the petitioner was married to his younger sister and he constantly harassed her. It was also alleged that the petitioner was an alcoholic and he also did not have a regular job. It was further stated in the complaint that after being fed up with the maltreatment, the deceased moved a complaint before the police and also filed a case under the Protection of Women from Domestic Violence Act, 2005 (“DV Act”) against Parmod and his parents.
As per the complainant, a panchayat was convened and Seema went back to her parental home about three months back, but the petitioner did not mend his ways thus leading the deceased to commit suicide.
It was the case of the petitioner’s counsel that the petitioner and the deceased were married for 15 years and that the deceased deserted the petitioner and their children in the year 2019. It was also submitted that besides the complaint filed under the DV Act, she also instituted a petition seeking maintenance under Section 125 Cr.P.C. Counsel also submitted that with the intervention of the panchayat, a compromise was effected between the parties in February 2021 as a result of which Seema came back to her matrimonial home and withdrew the cases filed by her.
Counsel stressed the fact that after Seema returned to her matrimonial home till the time she allegedly committed suicide in 2021, the couple had a smooth married life. It was urged that the prosecution did not possess any incriminating material against the petitioner. Lastly, it was argued that the ingredients of Section 107 IPC were not satisfied and offence under Section 306, IPC was not made out.
Per contra, opposing the petitioner’s plea, the State Counsel submitted that there was a history of discord between the petitioner and the deceased. He submitted that even after the deceased came back to her maternal home, she suffered at the hands of the petitioner, though no material to this effect could be pointed out. He also submitted that a final report was submitted and charges were framed but none out of 20 prosecution witnesses, were examined.
After having considered the submissions made by counsel for the parties, the Court was of the view that the complicity of the petitioner in the crime would remain the subject matter of debate before the Trial Court and that the petitioner, who was in custody for more than 08 months, enjoyed an unblemished past.
Thus, without commenting on the merit of the case, the petition was allowed and the petitioner was ordered to be released on bail on furnishing bail/surety bonds to the satisfaction of the Trial Court/Duty Magistrate concerned.
Read Order: Mahant Budh Singh v. Sh. Mahant Resham Singh and Others
Monika Rahar
New Delhi, April 1, 2022: While dealing with a petition impugning the lower court’s order dismissing the petitioner-defendant’s application under Order 7 Rule 11 of the Code of Civil Procedure (CPC) read with 151 CPC for rejection of plaint in a Civil Suit, the Punjab and Haryana High Court has held that the scope of Section 25 of the Societies Registration Act, 1860 is limited in its application only to any dispute that arises regarding the election or continuation of an office-bearer of a registered society.
The Bench of Justice Manjari Nehru Kaul also expounded that Section 10 CPC does not bar the institution of subsequent civil suit and it is only the trial of the subsequent suit, if any, which is not to be proceeded with.
The Court was called upon to decide on a petition filed under Article 227 of the Constitution of India for setting aside the order dated February 10, 2021, whereby the application filed by the petitioner-defendant under Order 7 Rule 11 of CPC read with 151 CPC for rejection of plaint in a Civil Suit was dismissed.
Contesting against the original suit filed by the first Plaintiff-respondent, the petitioner’s counsel contended that the Plaintiff-respondent was not the President of the Society in question and rather it was the first defendant (Mahant Gian Dev Singh), who was the President of the Society. Hence, the respondent (originally plaintiff) was not entitled to call a meeting of the aforementioned Society, argued the counsel. It was also submitted that in the aforementioned background, no cause of action accrued to the respondents to institute the suit for a permanent injunction.
It was further submitted that the suit in question was barred under Section 25 of the Societies Registration Act and deserved to be dismissed under Order 7 Rule 11 CPC sub-clause 11-D. The counsel lastly submitted that the civil suit was also liable to be rejected on the ground of the matter being sub judice as the respondents had also filed a suit involving similar issues, which was still pending adjudication.
At the very outset, adjudicating upon the claim of the petitioner’s counsel on Section 25 of the Registration Act, 1908, the Court opined provisions of Section 25 of the Societies Registration Act are limited in their application only if there is some dispute regarding the election or continuation of an office-bearer of a registered society.
However, in the case in hand, the Court noted that the respondents did not seek any relief much less challenge any election or continuation of the members of the Society in question. Rather, the only relief sought was of permanent injunction, which the Court added, could be sought at any time as and when the civil rights of a person are violated.
Even the next contention of the counsel that the matter was sub judice was also found by the Court to be devoid of merit as he failed to bring on record anything to show that a civil suit involving similar issues was ever filed prior to the instant suit of a permanent injunction.
Further, the Court also added that Section 10 CPC does not bar the institution of subsequent civil suit and it is only the trial of the subsequent suit, if any, which is not to be proceeded with.
Accordingly, the present petition was dismissed.
Time for judiciary to introspect and see what can be done to restore people’s faith – Justice Lokur
Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.
Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?
A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.
Q: So you have had the feeling that the establishment is trying to interfere in the matters?
A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.
Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?
A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.
Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?
A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.
Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?
A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.
Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?
A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.
Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?
A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.
Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?
A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.
Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?
I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.
Q: What kind of technology would you recommend that courts should have?
A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.
Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?
You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.
Q: Do you think law should permit this to death row convicts?
A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.
Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?
A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.
Q: What about capital punishment as a means of punishment itself?
A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.
Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?
A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.
Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?
A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?
Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?
A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).
Q: You think giving proper training to police to prepare a case will make a difference?
A: Yes, it will make a difference.
Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?
A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.
Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?
A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.
Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?
A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.
Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?
A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.
Q: What will happen if in a democracy these rights are controlled by hook or by crook?
A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.
Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?
A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.
Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?
A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.
Q: Is there any other thing you would like to say?
A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.
‘A major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013.’- Aakash Parihar
Aakash Parihar is Partner at Triumvir Law, a firm specializing in M&A, PE/VC, startup advisory, international commercial arbitration, and corporate disputes. He is an alumnus of the National Law School of India University, Bangalore.
How did you come across law as a career? Tell us about what made you decide law as an option.
Growing up in a small town in Madhya Pradesh, wedid not have many options.There you either study to become a doctor or an engineer. As the sheep follows the herd, I too jumped into 11th grade with PCM (Physics, Chemistry and Mathematics).However, shortly after, I came across the Common Law Admission Test (CLAT) and the prospect of law as a career. Being a law aspirant without any background of legal field, I hardly knew anything about the legal profession leave alone the niche areas of corporate lawor dispute resolution. Thereafter, I interacted with students from various law schools in India to understand law as a career and I opted to sit for CLAT. Fortunately, my hard work paid off and I made it to the hallowed National Law School of India University, Bangalore (NSLIU). Joining NLSIU and moving to Bangalorewas an overwhelming experience. However, after a few months, I settled in and became accustomed to the rigorous academic curriculum. Needless to mention that it was an absolute pleasure to study with and from someof the brightest minds in legal academia. NLSIU, Bangalore broadened my perspective about law and provided me with a new set of lenses to comprehend the world around me. Through this newly acquired perspective and a great amount of hard work (which is of course irreplaceable), I was able to procure a job in my fourth year at law school and thus began my journey.
As a lawyer carving a niche for himself, tell us about your professional journey so far. What are the challenges that new lawyers face while starting out in the legal field?
I started my professional journey as an Associate at Samvad Partners, Bangalore, where I primarily worked in the corporate team. Prior to Samvad Partners, through my internship, I had developed an interest towards corporate law,especially the PE/VC and M&A practice area. In the initial years as an associate at Samvad Partners and later at AZB & Partners, Mumbai, I had the opportunity to work on various aspects of corporate law, i.e., from PE/VC and M&A with respect to listed as well as unlisted companies. My work experience at these firms equipped and provided me the know-how to deal with cutting edge transactional lawyering. At this point, it is important to mention that I always had aspirations to join and develop a boutique firm. While I was working at AZB, sometime around March 2019, I got a call from Anubhab, Founder of Triumvir Law, who told me about the great work Triumvir Law was doing in the start-up and emerging companies’ ecosystem in Bangalore. The ambition of the firm aligned with mine,so I took a leap of faith to move to Bangalore to join Triumvir Law.
Anyone who is a first-generation lawyer in the legal industry will agree with my statement that it is never easy to build a firm, that too so early in your career. However, that is precisely the notion that Triumvir Law wanted to disrupt. To provide quality corporate and dispute resolution advisory to clients across India and abroad at an affordable price point.
Once you start your professional journey, you need to apply everything that you learnt in law schoolwith a practical perspective. Therefore, in my opinion, in addition to learning the practical aspects of law, a young lawyer needs to be accustomed with various practices of law before choosing one specific field to practice.
India has been doing reallywell in the field of M&A and PE/VC. Since you specialize in M&A and PE/VC dealmaking, what according to you has been working well for the country in this sphere? What does the future look like?
India is a developing economy, andM&A and PE/VC transactions form the backbone of the same. Since liberalization, there has been an influx of foreign investment in India, and we have seen an exponential rise in PC/VA and M&A deals. Indian investment market growth especially M&A and PE/VC aspects can be attributed to the advent of startup culture in India. The increase in M&A and PE/VC deals require corporate lawyersto handle the legal aspects of these deals.
As a corporate lawyer working in M&A and PE/VC space, my work ranges from drafting term-sheets to the transaction documents (SPA, SSA, SHA, BTA, etc.). TheM&A and PE/VC deal space experienced a slump during the first few months of the pandemic, but since June 2021, there has been a significant growth in M&A and PE/VC deal space in India. The growth and consistence of the M&A and PE/VC deal space in India can be attributed to several factors such as foreign investment, uncapped demands in the Indian market and exceptional performance of Indian startups.
During the pandemic many businesses were shut down but surprisingly many new businesses started, which adapted to the challenges imposed by the pandemic. Since we are in the recovery mode, I think the M&A and PE/VC deal space will reach bigger heights in the comingyears. We as a firm look forward to being part of this recovery mode by being part of the more M&A and PE/VC deals in future.
You also advice start-ups. What are the legal issues or challenges that the start-ups usually face specifically in India? Do these issues/challenges have long-term consequences?
We do a considerable amount of work with startupswhich range from day-to-day legal advisory to transaction documentation during a funding round. In India, we have noticed that a sizeable amount of clientele approach counsels only when there is a default or breach, more often than not in a state of panic. The same principle applies to startups in India, they normally approach us at a stage when they are about to receive investment or are undergoing due diligence. At that point of time, we need to understand their legal issues as well as manage the demands of the investor’s legal team. The majornon-compliances by startups usually involve not maintaining proper agreements, delaying regulatory filings and secretarial compliances, and not focusing on proper corporate governance.
Another major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013. Keeping up with these requirements can be time-consuming for even seasoned lawyers, and we can only imagine how difficult it would be for startups. Startups spend their initial years focusing on fund-raising, marketing, minimum viable products, and scaling their businesses. Legal advice does not usually factor in as a necessity. Our firm aims to help startups even before they get off the ground, and through their initial years of growth. We wanted to be the ones bringing in that change in the legal sector, and we hope to help many more such startups in the future.
In your opinion, are there any specific India-related problems that corporate/ commercial firms face as far as the company laws are concerned? Is there scope for improvement on this front?
The Indian legal system which corporate/commercial firms deal with is a living breathing organism, evolving each year. Due to this evolving nature, we lawyers are always on our toes.From a minor amendment to the Companies Act to the overhaul of the foreign exchange regime by the Reserve Bank of India, each of these changes affect the compliance and regulatory regime of corporates. For instance, when India changed the investment route for countries sharing land border with India,whereby any country sharing land border with India including Hong Kong cannot invest in India without approval of the RBI in consultation with the central government,it impacted a lot of ongoing transactions and we as lawyers had to be the first ones to inform our clients about such a change in the country’s foreign investment policy. In my opinion, there is huge scope of improvement in legal regime in India, I think a stable regulatory and tax regime is the need for the hour so far as the Indian system is concerned. The biggest example of such a market with stable regulatory and tax regime is Singapore, and we must work towards emulating the same.
Your boutique law firm has offices in three different cities — Delhi NCR, Mumbai and Bangalore. Have the Covid-induced restrictions such as WFH affected your firm’s operations? How has your firm adapted to the professional challenges imposed by the pandemic-related lifestyle changes?
We have offices in New Delhi NCR and Mumbai, and our main office is in Bangalore. Before the pandemic, our work schedule involved a fair bit of travelling across these cities. But post the lockdowns we shifted to a hybrid model, and unless absolutely necessary, we usually work from home.
In relation to the professional challenges during the pandemic, I think it was a difficult time for most young professionals. We do acknowledge the fact that our firm survived the pandemic. Our work as lawyers/ law firms also involves client outreach and getting new clients, which was difficult during the lockdowns. We expanded our client outreach through digital means and by conducting webinars, including one with King’s College London on International Treaty Arbitration. Further, we also focused on client outreach and knowledge management during the pandemic to educate and create legal awareness among our clients.
‘It’s a myth that good legal advice comes at prohibitive costs. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.’ – Archana Balasubramanian
Archana Balasubramanian is the founding partner of Agama Law Associates, a Mumbai-based corporate law firm which she started in 2014. She specialises in general corporate commercial transaction and advisory as well as deep sectoral expertise across manufacturing, logistics, media, pharmaceuticals, financial services, shipping, real estate, technology, engineering, infrastructure and health.
August 13, 2021:
Lawyers see companies ill-prepared for conflict, often, in India. When large corporates take a remedial instead of mitigative approach to legal issues – an approach utterly incoherent to both their size and the compliance ecosystem in their sector – it is there where the concept of costs on legal becomes problematic. Pre-dispute management strategy is much more rationalized on the business’ pocket than the costs of going in the red on conflict and compliances.
Corporates often focus on business and let go of backend maintenance of paperwork, raising issues as and when they arise and resolving conflicts / client queries in a manner that will promote dispute avoidance.
Corporate risk and compliance management is yet another elephant in India, which in addition to commercial disputes can be a drain on a company’s resources. It can be clubbed under four major heads – labour, industrial, financial and corporate laws. There are around 20 Central Acts and then specific state-laws by which corporates are governed under these four categories.
Risk and compliance management is also significantly dependent on the sector, size, scale and nature of the business and the activities being carried out.
The woes of a large number of promoters from the ecommerce ecosystem are to do with streamlining systems to navigate legal. India has certain heavily regulated sectors and, like I mentioned earlier, an intricate web of corporate risk and compliance legislation that can result in prohibitive costs in the remedial phase. To tackle the web in the preventive or mitigative phase, start-ups end up lacking the arsenal due to sheer intimidation from legal. Promoters face sectoral risks in sectors which are heavily regulated, risks of heavy penalties and fines under company law or foreign exchange laws, if fund raise is not done in a compliant manner.
It is a myth that good legal advice comes at prohibitive costs. Promoters are quick to sign on the dotted line and approach lawyers with a tick the box approach. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.
Investment contracts, large celebrity endorsement contracts and CXO contracts are some key areas where legal advice should be obtained. Online contracts is also emerging as an important area of concern.
When we talk of scope, arbitration is pretty much a default mechanism at this stage for adjudicating commercial disputes in India, especially given the fixation of timelines for closure of arbitration proceedings in India. The autonomy it allows the parties in dispute to pick a neutral and flexible forum for resolution is substantial. Lower courts being what they are in India, arbitration emerges as the only viable mode of dispute resolution in the Indian commercial context.
The arbitrability of disputes has evolved significantly in the last 10 years. The courts are essentially pro-arbitration when it comes to judging the arbitrability of subject matter and sending matters to arbitration quickly.
The Supreme Court’s ruling in the Vidya Drolia case has significantly clarified the position in respect of tenancy disputes, frauds and consumer disputes. It reflects upon the progressive approach of the court and aims to enable an efficient, autonomous and effective arbitration environment in India.
Law firms stand for ensuring that the law works for business and not against it. Whatever the scope of our mandate, the bottom line is to ensure a risk-free, conflict-free, compliant and prepared enterprise for our client, in a manner that does not intimidate the client or bog them down, regardless of the intricacy of the legal and regulatory web it takes to navigate to get to that end result. Lawyers need to dissect the business of law from the work.
This really involves meticulous, detail-oriented, sheer hard work on the facts, figures, dates and all other countless coordinates of each mandate, repetitively and even to a, so-called, “dull” routine rhythm – with consistent single-mindedness and unflinching resolve.
As a firm, multiply that effort into volumes, most of it against-the-clock given the compliance heavy ecosystem often riddled with uncertainties in a number of jurisdictions. So the same meticulous streamlining of mandate deliverables has to be extrapolated by the management of the firm to the junior most staff.
Further, the process of streamlining itself has to be more dynamic than ever now given the pace at which the new economy, tech-ecosystem, business climate as well as business development processes turn a new leaf.
Finally, but above all, we need to find a way to feel happy, positive and energized together as a team while chasing all of the aforesaid dreams. The competitive timelines and volumes at which a law firm works, this too is a real challenge. But we are happy to face it and evolve as we grow.
We always as a firm operated on the work from anywhere principle. We believed in it and inculcated this through document management processes to the last trainee. This helped us shut shop one day and continue from wherever we are operating.
The team has been regularly meeting online (at least once a day). We have been able to channel the time spent in travelling to and attending meetings in developing our internal knowledge banks further, streamline our processes, and work on integrating various tech to make the practice more cost-effective for our clients.
Right to Disclosure – Importance & Challenges in Criminal Justice System – By Manu Sharma
Personal liberty is the most cherished value of human life which thrives on the anvil of Articles 14 and 21 of the Constitution of India (“the Constitution”). Once a person is named an accused, he faces the spectre of deprivation of his personal liberty and criminal trial. This threat is balanced by Constitutional safeguards which mandate adherence to the rule of law by the investigating agencies as well as the Court. Thus, any procedure which seeks to impinge on personal liberty must also be fair and reasonable. The right to life and personal liberty enshrined under article 21 of the Constitution, expanded in scope post Maneka Gandhi[1], yields the right to a fair trial and fair investigation. Fairness demands disclosure of anything relevant that may be of benefit to an accused. Further, the all-pervading principles of natural justice envisage the right to a fair hearing, which entails the right to a full defence. The right to a fair defence stems from full disclosure. Therefore, the right of an accused to disclosure emanates from this Constitutional philosophy embellished by the principles of natural justice and is codified under the Code of Criminal Procedure, 1973 (“Code”).
Under English jurisprudence, the duty of disclosure is delineated in the Criminal Procedure and Investigations Act, 1996, which provides that the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, except if such disclosure undermines public interest.[2] Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence.[3] The duty of disclosure under common law contemplates disclosure of anything which might assist the defence[4], even if such material was not to be used as evidence[5]. Under Indian criminal jurisprudence, which has borrowed liberally from common law, the duty of disclosure is embodied in sections 170(2), 173, 207 and 208 of the Code, which entail the forwarding of material to the Court and supply of copies thereof to the accused, subject to statutory exceptions.
II. Challenges in Enforcement
The right to disclosure is a salient feature of criminal justice, but its provenance and significance appear to be lost on the Indian criminal justice system. The woes of investigative bias and prosecutorial misconduct threaten to render this right otiose. That is not to say that the right of an accused to disclosure is indefeasible, as certain exceptions are cast in the Code itself, chief among them being public interest immunity under section 173(6). However, it is the mischief of the concept of ‘relied upon’ emerging from section 173(5) of the Code, which is wreaking havoc on the right to disclosure and is the central focus of this article. The rampant misuse of the words “on which the prosecution proposes to rely’ appearing in section 173(5) of the Code, to suppress material favourable to the accused or unfavourable to the prosecution in the garb of ‘un-relied documents’ has clogged criminal courts with avoidable litigation at the very nascent stage of supply of copies of documents under section 207 of the Code. The erosion of the right of an accused to disclosure through such subterfuge is exacerbated by the limited and restrictive validation of this right by criminal Courts. The dominant issues highlighted in the article, which stifle the right to disclosure are; tainted investigation, unscrupulous withholding of material beneficial to the accused by the prosecution, narrow interpretation by Courts of section 207 of the Code, and denial of the right to an accused to bring material on record in the pre-charge stage.
A. Tainted Investigation
Fair investigation is concomitant to the preservation of the right to fair disclosure and fair trial. It envisages collection of all material, irrespective of its inculpatory or exculpatory nature. However, investigation is often vitiated by the tendencies of overzealous investigating officers who detract from the ultimate objective of unearthing truth, with the aim of establishing guilt. Such proclivities result in collecting only incriminating material during investigation or ignoring the material favourable to the accused. This leads to suppression of material and scuttles the right of the accused to disclosure at the very inception. A tainted investigation leads to miscarriage of justice. Fortunately, the Courts are not bereft of power to supervise investigation and ensure that the right of an accused to fair disclosure remains protected. The Magistrate is conferred with wide amplitude of powers under section 156(3) of the Code to monitor investigation, and inheres all such powers which are incidental or implied to ensure proper investigation. This power can be exercised suo moto by the Magistrate at all stages of a criminal proceeding prior to the commencement of trial, so that an innocent person is not wrongly arraigned or a prima facie guilty person is not left out.[6]
B. Suppression of Material
Indian courts commonly witness that the prosecution is partisan while conducting the trial and is invariably driven by the lust for concluding in conviction. Such predisposition impels the prosecution to take advantage by selectively picking up words from the Code and excluding material favouring the accused or negating the prosecution case, with the aid of the concept of ‘relied upon’ within section 173(5) of the Code. However, the power of the prosecution to withhold material is not unbridled as the Constitutional mandate and statutory rights given to an accused place an implied obligation on the prosecution to make fair disclosure.[7] If the prosecution withholds vital evidence from the Court, it is liable to adverse inference flowing from section 114 of the Indian Evidence Act, 1872 (“Evidence Act). The prosecutor is expected to be guided by the Bar Council of India Rules which prescribe that an advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishment of the innocence of the accused shall be scrupulously avoided. [8]
C. Scope of S. 207
The scope of disclosure under section 207 has been the subject of fierce challenge in Indian Courts on account of the prosecution selectively supplying documents under the garb of ‘relied upon’ documents, to the prejudice of the defence of an accused. The earlier judicial trend had been to limit the supply of documents under section 207 of the Code to only those documents which were proposed to be relied upon by the prosecution. This view acquiesced the exclusion of documents which were seized during investigation, but not filed before the Court along with the charge sheet, rendering the right to disclosure a farce. This restrictive sweep fails to reconcile with the objective of a fair trial viz. discovery of truth. The scheme of the code discloses that Courts have been vested with extensive powers inter alia under sections 91, 156(3) and 311 to elicit the truth. Towards the same end, Courts are also empowered under Section 165 of the Evidence Act. Thus, the principle of harmonious construction warrants a more purposive interpretation of section 207 of the code. The Hon’ble Supreme Court expounded on the scope of Section 207 of the Code in the case of Manu Sharma[9] and held that documents submitted to the Magistrate under section 173(5) would deem to include the documents which have to be sent to the magistrate during the course of investigation under section 170(2). A document which has been obtained bona fide and has a bearing on the case of the prosecution should be disclosed to the accused and furnished to him to enable him to prepare a fair defence, particularly when non production or disclosure would affect administration of justice or prejudice the defence of the accused. It is not for the prosecution or the court to comprehend the prejudice that is likely to be caused to the accused. The perception of prejudice is for the accused to develop on reasonable basis.[10] Manu Sharma’s [supra] case has been relied upon in Sasikala [11] wherein it was held that the Court must concede a right to the accused to have access to the documents which were forwarded to the Court but not exhibited by the prosecution as they favoured the accused. These judgments seem more in consonance with the true spirit of fair disclosure and fair trial. However, despite such clear statements of law, courts are grappling with the judicial propensity of deviating from this expansive interpretation and regressing to the concept of relied upon. The same is evident from a recent pronouncement of the Delhi High Court where the ratios laid down in Manu Sharma & Sasikala [supra] were not followed by erroneously distinguishing from those cases.[12] Such “per incuriam” aberrations by High Court not only undermine the supremacy of the Apex Court, but also adversely impact the functioning of the district courts over which they exercise supervisory jurisdiction. Hopefully in future Judges shall be more circumspect and strictly follow the law declared by the Apex Court.
D. Pre-Charge Embargo
Another obstacle encountered in the enforcement of the right to disclosure is the earlier judicial approach to stave off production or consideration of any additional documents not filed alongwith the charge sheet at the pre-charge stage, as the right to file such material was available to the accused only upon the commencement of trial after framing of charge.[13] At the pre-charge stage, Court could not direct the prosecution to furnish copies of other documents[14] It was for the accused to do so during trial or at the time of entering his defence. However, the evolution of law has seen that at the stage of framing charge, Courts can rely upon the material which has been withheld by the prosecutor, even if such material is not part of the charge sheet, but is of such sterling quality demolishing the case of the prosecution.[15] Courts are not handicapped to consider relevant material at the stage of framing charge, which is not relied upon by the prosecution. It is no argument that the accused can ask for the documents withheld at the time of entering his defence.[16] The framing of charge is a serious matter in a criminal trial as it ordains an accused to face a long and arduous trial affecting his liberty. Therefore, the Court must have all relevant material before the stage of framing charge to ascertain if grave suspicion is made out or not. Full disclosure at the stage of section 207 of the code, which immediately precedes discharging or charging an accused, enables an accused to seek a discharge, if the documents, including those not relied upon by the prosecution, create an equally possible view in favour of the accused.[17] On the other hand, delaying the reception of documents postpones the vindication of the accused in an unworthy trial and causes injustice by subjecting him to the trauma of trial. There is no gainsaying that justice delayed is justice denied, therefore, such an approach ought not to receive judicial consent. A timely discharge also travels a long way in saving precious time of the judiciary, which is already overburdened by the burgeoning pendency of cases. Thus, delayed or piecemeal disclosure not only prejudices the defence of the accused, but also protracts the trial and occasions travesty of justice.
III. Duties of the stakeholders in criminal justice system
The foregoing analysis reveals that participation of the investigating agency, the prosecution and the Court is inextricably linked to the enforcement of the right to disclosure. The duties cast on these three stakeholders in the criminal justice system, are critical to the protection of this right. It is incumbent upon the investigating agencies to investigate cases fairly and to place on record all the material irrespective of its implication on the case of prosecution case. Investigation must be carried out with equal alacrity and fairness irrespective of status of accused or complainant.[18] An onerous duty is cast on the prosecution as an independent statutory officer, to conduct the trial with the objective of determination of truth and to ensure that material favourable to the defence is supplied to the accused. Ultimately, it is the overarching duty of the Court to ensure a fair trial towards the administration of justice for all parties. The principles of fair trial require the Court to strike a delicate balance between competing interests in a system of adversarial advocacy. Therefore, the court ought to exercise its power under section 156(3) of the Code to monitor investigation and ensure that all material, including that which enures to the benefit of the accused, is brought on record. Even at the stage of supply of copies of police report and documents under section 207 of the Code, it is the duty of the Court to give effect to the law laid down by the Hon’ble Supreme Court in Manu Sharma (supra) and Sasikala (supra), and ensure that all such material is supplied to the accused irrespective of whether it is “relied upon” by the prosecution or not.
IV. Alternate Remedy
The conundrum of supply of copies under section 207 of the code abounds criminal trials. Fairness is an evolving concept. There is no doubt that disclosure of all material which goes to establish the innocence of an accused is the sine qua non of a fair trial.[19] Effort is evidently underway to expand the concept in alignment with English jurisprudence. In the meanwhile, does the right of an accused to disclosure have another limb to stand on? Section 91 of the Code comes to the rescue of an accused, which confers wide discretionary powers on the Court, independent of section 173 of the Code, to summon the production of things or documents, relevant for the just adjudication of the case. In case the Court is of the opinion that the prosecution has withheld vital, relevant and admissible evidence from the Court, it can legitimately use its power under section 91 of the Code to discover the truth and to do complete justice to the accused.[20]
V. Conclusion
A society’s progress and advancement are judged on many parameters, an important one among them being the manner in which it administers criminal justice. Conversely, the ironic sacrilege of the core virtues of criminal jurisprudence in the temples of justice evinces social decadence. The Indian legislature of the twenty first century has given birth to several draconian statutes which place iron shackles on personal liberty, evoking widespread fear of police abuses and malicious prosecution. These statutes not only entail presumptions which reverse the burden of proof, but also include impediments to the grant of bail. Thus, a very heavy burden to dislodge the prosecution case is imposed on the accused, rendering the right to disclosure of paramount importance. It is the duty of the Court to keep vigil over this Constitutional and statutory right conferred on an accused by repudiating any procedure which prejudices his defence. Notable advancement has been made by the Apex Court in interpreting section 207 of the Code in conformity with the Constitutional mandate, including the right to disclosure. Strict adherence to the afore-noted principles will go a long way in ensuring real and substantial justice. Any departure will not only lead to judicial anarchy, but also further diminish the already dwindling faith of the public in the justice delivery system.
**
Advocate Manu Sharma has been practising at the bar for over sixteen years. He specialises in Criminal Defence. Some of the high profile cases he has represented are – the 2G scam case for former Union minister A Raja; the Religare/Fortis case for Malvinder Singh; Peter Mukerjee in the P Chidambaram/ INX Media case; Devas Multimedia in ISRO corruption act case; Om Prakash Chautala in PMLA case; Aditya Talwar in the aviation scam case; Dilip Ray, former Coal Minister in one of the coal scam cases; Suhaib Illyasi case.
**
Disclaimer: The views or opinions expressed are solely of the author.
[1] Maneka Gandhi and Another v. Union of India, (1978) 1 SCC 248
[2] S. 3 of the Criminal Procedure and Investigations Act, 1996
[3] R v. H and R v. C, 2004 (1) ALL ER 1269
[4] R v. Ward (Judith), (1993) 1 WLR 619 : (1993) 2 ALL ER 577 (CA)
[5] R v. Preston, (1994) 2 AC 130 : (1993) 3 WLR 891 : (1993) 4 ALL ER 638 (HL), R v. Stinchcome,
(1991), 68 C.C.C. (3d) 1 (S.C.C.)
[6] Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another, 2019 SCC Online SC 1346
[7] Sidhartha Vashishth alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1
[8] R. 16, part II, Ch. VI of the Bar Council of India Rules
[9] Manu Sharma, (2010) 6 SCC 1
[10] V.K. Sasikala v. State, (2012) 9 SCC 771 : AIR 2013 SC 613
[11] Sasikala, (2012) 9 SCC 771 : AIR 2013 SC 613
[12] Sala Gupta and Another v. Directorate of Enforcement, (2019) 262 DLT 661
[13] State of Orissa v. Debendra Nath Padhi¸(2005) 1 SCC 568
[14] Dharambir v. Central Bureau of Investigation, ILR (2008) 2 Del 842 : (2008) 148 DLT 289
[15] Nitya Dharmananda alias K. Lenin and Another v. Gopal Sheelum Reddy, (2018) 2 SCC 93
[16] Neelesh Jain v. State of Rajasthan, 2006 Cri LJ 2151
[17] Dilwar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra, (2008) 10 SCC 394
[18] Karan Singh v. State of Haryana, (2013) 12 SCC 529
[19] Kanwar Jagat Singh v. Directorate of Enforcement & Anr, (2007) 142 DLT 49
[20] Neelesh, 2006 Cri LJ 2151
Disclaimer: The views or opinions expressed are solely of the author.
Validity & Existence of an Arbitration Clause in an Unstamped Agreement
By Kunal Kumar
January 8, 2024
In a recent ruling, a seven-judge bench of the Supreme Court of India in its judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, overruled the constitutional bench decision of the Supreme Court of India in N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. and has settled the issue concerning the validity and existence of an arbitration clause in an unstamped agreement. (‘N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III’)
Background to N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
One of the first instances concerning the issue of the validity of an unstamped agreement arose in the case of SMS Tea Estate Pvt. Ltd. v. Chandmari Tea Company Pvt. Ltd. In this case, the Hon’ble Apex Court held that if an instrument/document lacks proper stamping, the exercising Court must preclude itself from acting upon it, including the arbitration clause. It further emphasized that it is imperative for the Court to impound such documents/instruments and must accordingly adhere to the prescribed procedure outlined in the Indian Stamp Act 1899.
With the introduction of the 2015 Amendment, Section 11(6A) was inserted in the Arbitration & Conciliation Act 1996 (A&C Act) which stated whilst appointing an arbitrator under the A&C Act, the Court must confine itself to the examination of the existence of an arbitration agreement.
In the case of M/s Duro Felguera S.A. v. M/s Gangavaram Port Limited, the Supreme Court of India made a noteworthy observation, affirming that the legislative intent behind the 2015 Amendment to the A&C Act was necessitated to minimise the Court's involvement during the stage of appointing an arbitrator and that the purpose embodied in Section 11(6A) of A&C Act, deserves due acknowledgement & respect.
In the case of Garware Wall Ropes Ltd. v. Cosatal Marine Constructions & Engineering Ltd., a divisional bench of the Apex Court reaffirmed its previous decision held in SMS Tea Estates (supra) and concluded that the inclusion of an arbitration clause in a contract assumes significance, emphasizing that the agreement transforms into a contract only when it holds legal enforceability. The Apex Court observed that an agreement fails to attain the status of a contract and would not be legally enforceable unless it bears the requisite stamp as mandated under the Indian Stamp Act 1899. Accordingly, the Court concluded that Section 11(6A) read in conjunction with Section 7(2) of the A&C Act and Section 2(h) of the Indian Contract Act 1872, clarified that the existence of an arbitration clause within an agreement is contingent on its legal enforceability and that the 2015 Amendment of the A&C Act to Section 11(6A) had not altered the principles laid out in SMS Tea Estates (supra).
Brief Factual Matrix – N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.
Indo Unique Flame Ltd. (‘Indo Unique’) was awarded a contract for a coal beneficiation/washing project with Karnataka Power Corporation Ltd. (‘KPCL’). In the course of the project, Indo Unique entered into a subcontract in the form of a Work Order with N.N. Global Mercantile Pvt. Ltd. (‘N.N. Global’) for coal transportation, coal handling and loading. Subsequently, certain disputes arose with KPCL, leading to KPCL invoking Bank Guarantees of Indo Unique under the main contract, after which Indo Unique invoked the Bank Guarantee of N. N. Global as supplied under the Work Order.
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Subsequently, N.N. Global initiated legal proceedings against the cashing of the Bank Guarantee in a Commercial Court. In response thereto, Indo Unique moved an application under Section 8 of the A&C Act, requesting that the Parties to the dispute be referred for arbitration. The Commercial Court dismissed the Section 8 application, citing the unstamped status of the Work Order as one of the grounds. Dissatisfied with the Commercial Court's decision on 18 January 2018, Indo Unique filed a Writ Petition before the High Court of Bombay seeking that the Order passed by the Commercial Court be quashed or set aside. The Hon’ble Bombay High Court on 30 September 2020 allowed the Writ Petition filed by Indo Unique, aggrieved by which, N.N. Global filed a Special Leave Petition before the Supreme Court of India.
N. N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. – I
The issue in the matter of M/s N.N. Global Mercantile Pvt. Ltd. v. M/s Indo Unqiue Flame Ltd. & Ors. came up before a three-bench of the Supreme Court of India i.e. in a situation when an underlying contract is not stamped or is insufficiently stamped, as required under the Indian Stamp Act 1899, would that also render the arbitration clause as non-existent and/or unenforceable (‘N.N. Global Mercantile Pvt. Ltd. v. Indo Flame Ltd. – I’).
The Hon’ble Supreme Court of India whilst emphasizing the 'Doctrine of Separability' of an arbitration agreement held that the non-payment of stamp duty on the commercial contract would not invalidate, vitiate, or render the arbitration clause as unenforceable, because the arbitration agreement is considered an independent contract from the main contract, and the existence and/or validity of an arbitration clause is not conditional on the stamping of a contract. The Hon’ble Supreme Court further held that deficiency in stamp duty of a contract is a curable defect and that the deficiency in stamp duty on the work order, would not affect the validity and/or enforceability of the arbitration clause, thus applying the Doctrine of Separability. The arbitration agreement remains valid and enforceable even if the main contract, within which it is embedded, is not admissible in evidence owing to lack of stamping.
The Hon’ble Apex Court, however, considered it appropriate to refer the issue i.e. whether unstamped instrument/document, would also render an arbitration clause as non-existent, unenforceable, to a constitutional bench of five-bench of the Supreme Court.
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II
On 25 April 2023, a five-judge bench of the Hon’ble Supreme Court of India in the matter of N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. held that (1) An unstamped instrument containing an arbitration agreement cannot be said to be a contract which is enforceable in law within the meaning of Section 2(h) of the Indian Contract Act 1872 and would be void under Section 2(g) of the Indian Contract Act 1872, (2) an unstamped instrument which is not a contract nor enforceable cannot be acted upon unless it is duly stamped, and would not otherwise exist in the eyes of the law, (3) the certified copy of the arbitration agreement produced before a Court, must clearly indicate the stamp duty paid on the instrument, (4) the Court exercising its power in appointing an arbitration under Section 11 of the A&C Act, is required to act in terms of Section 33 and Section 35 of the Indian Stamp Act 1899 (N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II).
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
A seven-judge bench of the Supreme Court of India on 13 December 2023 in its recent judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, (1) Agreements lacking proper stamping or inadequately stamped are deemed inadmissible as evidence under Section 35 of the Stamp Act. However, such agreements are not automatically rendered void or unenforceable ab initio; (2) non-stamping or insufficient stamping of a contract is a curable defect, (2) the issue of stamping is not subject to determination under Sections 8 or 11 of the A&C Act by a Court. The concerned Court is only required to assess the prima facie existence of the arbitration agreement, separate from concerns related to stamping, and (3) any objections pertaining to the stamping of the agreement would fall within the jurisdiction of the arbitral tribunal. Accordingly, the decision in N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II and SMS Tea (supra) was overruled, by the seven-judge bench of the Supreme Court of India.
Kunal is a qualified lawyer with more than nine years of experience and has completed his LL.M. in Dispute Resolution (specialisation in International Commercial Arbitration) from Straus Institute for Dispute Resolution, Pepperdine University, California.
Kunal currently has his own independent practice and specializes in commercial/construction arbitration as well as civil litigation. He has handled several matters relating to Civil Law and arbitrations (both domestic and international) and has appeared before the Supreme Court of India, High Court of Delhi, District Courts of Delhi and various other tribunals.
No Safe Harbour For Google On Trademark Infringement
By Mayank Grover & Pratibha Vyas
October 9, 2023
Innovation, patience, dedication and uniqueness culminate in establishing a distinct identity. A trademark aids in identifying the source and quality, shaping perceptions about the identity's essence. When values accompany a product or service's trademark, safeguarding against misuse and infringement becomes crucial. A recent pronouncement of a Division Bench of the Delhi High Court dated August 10, 2023 in Google LLC v. DRS Logistics (P) Ltd. & Ors. and Google India Private Limited v. DRS Logistics (P) Ltd. & Ors. directed that Google’s use of trademarks as keywords for its Google Ads Programme does amount to ‘use’ in advertising under the Trademarks Act and the benefit of safe harbour would not be available to Google if such keywords infringe on the concerned trademark.
Factual Background
Google LLC manages and operates the Google Search Engine and Ads Programme, while, Google India Private Limited is a subsidiary of Google that has been appointed as a non-exclusive reseller of the Ads Programme in India. The Respondents, DRS Logistics and Agarwal Packers and Movers Pvt. Ltd. are leading packaging, moving and logistics service providers in India.
On 22.12.2011, DRS filed a suit against Google and Just Dial Ltd. under provisions of the Trademarks Act, 1999 (‘TM Act’) inter alia seeking a permanent injunction against Google from permitting third parties from infringing, passing off etc. the relevant trademarks of DRS. The core of the dispute revolved around Google’s Ads Programme. DRS claimed that its trade name 'AGARWAL PACKERS AND MOVERS' is widely recognized and a 'well-known' trademark. Use of DRS’s trademark as a keyword diverts internet traffic from its website to that of its competitors and they were entitled to seek restraint against Google for permitting third parties who are not authorized to use the said trademark. DRS further argued that Google benefits from these trademark infringements. This practice involved charging a higher amount for displaying these ads, constituting an infringement of their trademarks. Whereas, Google contended that the use of the keyword in the Ads Programme does not amount to ‘use’ under the TM Act notwithstanding that the keyword is/or similar to a trademark. Thus, the use of a term as a keyword cannot be construed as an infringement of a trademark under the TM Act, and being an intermediary, it claimed a safe harbour under Section 79 of the Information Technology Act, 2000. (‘IT Act’).
In essence, the dispute between the parties was rooted in DRS’s grievance concerning the Ads Programme. The Learned Single Judge vide judgment dated 30.10.2021interpreted relevant provisions of the TM Act and drew on multiple legal precedents to arrive at the decision that DRS can seek protection of its trademarks which were registered under Section 28 of the TM Act and issued directions to investigate complaints alleging the use of trademark and/or to ascertain whether a sponsored result has an effect of infringing a trademark or passing off.
Being aggrieved, Google LLC and Google Pvt. Ltd. filed appeals before the Division Bench. Google LLC argued that the Single Judge’s findings were erroneous and the directions issued were liable to be set aside. Google India claimed that it doesn’t control and operate the Search Engine and the Ads Programme making it unable to comply with the directions passed in the impugned judgment.
Analysis & Decision of Court
The Division Bench found Single Judge’s rationale for assessing trademark infringement through keywords and meta-tags valid. Meta-tags are a list of words/code in a website, not readily visible to the naked eye. It serves as a tool for indexing the website by a search engine. If a trademark of a third party is used as a meta-tag, the same would serve as identifying the website as relevant to the search query that includes the trademark as a search term. The use of keywords in the Ads Programme also serves similar purpose. The Division Bench was unable to accept that using a trademark as a keyword, even if not visible, would not be considered trademark use under the TM Act.
Google placed heavy reliance on the decisions rendered by Courts across jurisdictions of United Kingdom, United States of America, European Union, Australia, New Zealand, Russia, South Africa, Canada, Spain, Italy, Japan and China; in the cases of Google France SARL and Google Inc. v. Louis Vitton SA & Ors.[1], Interflora Inc. v. Marks & Spencer Plc.[2], and L’Oreal SA v. eBay International AG[3] in support of the contention that the use of trade marks is by the advertiser and not by Google. However, the Division Bench rejected Google’s passive role; highlighting its active involvement in recommending and promoting trademark keywords for higher clicks in its Ads Programme. Division Bench referred to a few judicial decisions rendered in the United States of America that captured the essence of the controversy for perspective, concluding that Google actively promotes and encourages trademarks associated with major goods and services, rather than having a passive role.
It was held that the contention that the use of trademarks as keywords, per se constitutes an infringement of the trademark is unmerited; the assumption that an internet user is merely searching the address of the proprietor of the trademark when he feeds in a search query that may contain a trademark, is erroneous.
The Doctrine of 'Initial Interest Confusion' addresses trademark infringement based on pre-purchase confusion. The doctrine is applied when meta-tags, keywords, or domain names cause initial confusion similar to a registered trademark. If users are misled to access unrelated websites, trademark use in internet advertising may be actionable and reliance was placed on US precedents. Referring to Section 29 of the TM Act, it was directed that Section 29 does not specify the duration for which the confusion lasts but, even if the confusion is for a short duration and an internet user is able to recover from the same, the trade mark would be infringed and would offend Section 29(2) of the TM Act.
It was held that the Ads Programme is a platform for displaying advertisements. Google, being an architect and operator of its own programme makes it an active participant in the use of trademarks and determining the advertisements displayed on search pages. Their use of proprietary software makes them utilize trademarks and control the distribution of information related to potentially infringing links, ultimately leading to revenue maximization. Hence, a substantial link exists between Google LLC and Google India, rendering it impossible for Google India to deny its role in operating the Ads Programme. It was further held that Google sells trademarks as keywords to advertisers and encourages users to use trademarks as keywords for ads. It is contradictory for Google to encourage trademark use while claiming data belongs to third parties for exemption. After 2004, Google changed policies to boost revenue and subsequently, introduced a tool that searches effective terms, including trademarks. Google's active involvement in its advertising business and online nature does not necessarily qualify it for benefits under Section 79 of the IT Act. The Division Bench agreed with the view of the Single Judge that Google would not be eligible for protection of safe harbour under Section 79(1) of the IT Act, if its alleged activities infringe trademarks.
Conclusion
This is a seminal decision governing (and rather, restricting) the operations of intermediaries and redefining the jurisprudence of safe harbour under the IT Act. The decision is well-reasoned and establishes a significant precedent for safeguarding trademarks by uniquely holding Google accountable under its Ads Programme. The same will prevent usage of tradenames as a third-party trademark in keyword search or metatags by advertisers on Google’s search engine. While keywords and meta-tags have different levels of visibility, their purpose is similar i.e. advertising and attracting internet traffic. The use of trademarks as meta-tags by a person who is neither a proprietor of the trademark nor permitted to use the same leads to confusion amongst public at large due to the automated processes of search engines and consequently, constitutes trademark infringement.
About the Authors: Mayank Grover is a Partner and Pratibha Vyas is an Associate at Seraphic Advisors, Advocates & Solicitors
[1] C-236/08 to C-238/08 (2010) [2011] All ER (EC) 41
[2] [2014] EWCA Civ 1403
[3] 2C- 324/09 (2010)
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