Orders and Judgments Duration November 23, 2019 – December 07, 2019

ond-nov23-dec7

Injustice anywhere is a threat to justice everywhere.

DR. MARTIN LUTHER KING, JR., AMERICAN CLERGYMAN AND CIVIL RIGHTS LEADER

ALTERNATIVE DISPUTE RESOLUTION

  • Dr S J Rajalakshmi & Dr S Sobha v. The Manager Customer Services Air India Limited & Ors
    Karnataka High Court (HC) asks Air India to pay ₹ 20-lakh relief to physically challenged doctor-25 September 2019 (KARNATAKA HIGH COURT JUDGEMENT)
    The Karnataka High Court (HC) directed Air India to pay ₹ 20 lakh as compensation to a physically challenged doctor and her mother for a missing wheelchair at London airport, which not only caused inconvenience but also caused mental agony to them during their Europe tour in July 2016. Partly allowing a Petition filed by Dr SJ Rajalakshmi and her 63-year-old mother Dr S Shobha, the Court observed that Air India's conduct violated the fundamental rights of Petitioners apart from the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full participation) Act and it needs to compensated.
    The Judgement can be accessed at:
    http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/299829/1/WP2432-17-25-09-2019.pdf
  • Kapilaben & Ors v. Ashok Kumar Jayantilal Sheth through POA Gopalbhai Madhusudan Patel & Ors
    Assignment of interest is not valid merely because it was not expressly prohibited in Contract -25 November 2019 SUPREME COURT JUDGEMENT)
    The Supreme Court (SC) has observed that assignment of contractual interest cannot be held to be valid merely because there is no express bar against assignability stipulated in the contract. The bench observed that to examine whether an interest is assignable, it has to be seen whether the terms of the contract, and the circumstances in which the contract was entered into, lead to an inference that the parties did not intend to make their interest therein assignable.
    The Judgement can be accessed at:
    https://main.sci.gov.in/supremecourt/2014/30654/30654_2014_12_1501_18474_Judgement_25-Nov-2019.pdf
  • Hindustan Construction Company Limited & Anr v. Union of India & Ors
    Supreme Court (SC) strikes down Section 87 of Arbitration & Conciliation Act inserted by 2019 Amendment-27 November 2019 (SUPREME COURT JUDGEMENT)
    In a significant judgment, the Supreme Court (SC) struck down Section 87 of the Arbitration and Conciliation Act 1996, which was inserted through the 2019 Amendment Act. The bench held the provision to be "manifestly Arbitrary". The provision sought to nullify the effect of 2018 judgment of the Supreme Court in BCCI v Kochi Cricket Private Ltd case which decided the prospective application of automatic stay provision in the Act. In that case, the SC had decided whether the 2015 Amendments made to Section 36 of the Act were retrospective or prospective. The 2015 Amendment made to Section 36 clarified that mere filing of appeal would not amount to stay of enforcement proceedings, and further introduced a provision that stay will be only conditional on furnishing security if the award relates to payment of money. Before the Amendment, one could get a stay of enforcement of award by mere filing of appeal even without any security.
    The bench had held in Kochi Cricket Pvt Ltd case that the 2015 Amendment to Section 36 will apply only to: (a) arbitral proceedings commenced on or after October 23, 2015 (date of commencement of the Amendment Act); and (b) Arbitration-related court proceedings filed on or after October 23, 2015, even where the arbitral proceedings had been commenced before the Amendments came into force. Section 87 of the Act, inserted by 2019 Amendment Act, states that the 2015 Amendment will not apply to Court proceedings arising out of or in relation to arbitral proceedings irrespective of whether such court proceedings are commenced prior to or after the commencement of the Arbitration and Conciliation (Amendment) Act, 2015.
    The Judgement can be accessed at:
    https://main.sci.gov.in/supremecourt/2019/29540/29540_2019_4_1501_18556_Judgement_27-Nov-2019.pdf
  • S Satyanarayana & Co v. West Quay Multiport Private Limited
    Arbitration Agreement not exempt from Stamp Duty even if contract and work is executed outside the State-22 November 2019 (BOMBAY HIGH COURT JUDGEMENT)
    The Bombay High Court (HC) has held that even if a contract is executed outside the State of Maharashtra and the work is also carried outside the State but Arbitration of any contractual dispute is to be held within the State (in this case Mumbai), stamp duty will be payable under the Maharashtra Stamp Act, 1958.
    The Judgment can be accessed at:ReadMore
  • Perkins Eastman Architects DPC & Anr v. HSCC (India) Ltd
    Person interested in outcome of decision of the dispute must not have power to appoint Sole Arbitrator-26 September 2019 (SUPREME COURT JUDGEMENT)
    A person who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole Arbitrator, the Supreme Court has reiterated in a judgment. In Perkins Eastman Architects DPC v. HSCC (India) Ltd., Clause 24 of the Agreement empowered the Chairman and Managing Director of the company to make the appointment of a sole Arbitrator and said Clause also stipulates that no person other than a person appointed by such Chairman and Managing Director of the respondent would act as an Arbitrator.
    The Judgement can be accessed at:ReadMore

CORPORATE

  • Oriental Bank of Commerce v. Sikka Papers Ltd & Ors
    National Company Law Tribunal (NCLT) directs that Ministry of Corporate Affairs (MCA) be made a party in all IBC cases and Company Petitions-22 November 2019 (NCLT ORDER)
    The National Company Law Tribunal (NCLT), Principal Bench has directed that Secretary, Ministry of Corporate Affairs (MCA), Government of India shall be made a party to all the cases under the Insolvency & Bankruptcy Code as well as the Company Petitions before the Tribunals. The direction is applicable not only to the Principal Bench at New Delhi but all the Benches of the National Company Law Tribunal in India. The Deputy Registrars of all National Company Law Tribunals have been directed to ensure that the order is complied with. The NCLT has stated that making the Ministry of Corporate Affairs as a party would facilitate the availability of authentic record for the proper appreciation of the matters being contested before it.
    The Order can be accessed at:ReadMore
  • Asset Reconstruction Company (I) Limited (ARCIL) v. Mr Koteswara Rao Karuchola & others
    Creditor facing PMLA investigation cannot be part of Committee of Creditors-18 November 2019 (NCLAT JUDGEMENT)
    The National Company Law Appellate Tribunal (NCLAT) has held that a creditor against whom a money laundering case has been initiated cannot be allowed to be a member of the Committee of Creditors for a corporate insolvency resolution process.
    The Judgement can be accessed at:
    https://nclat.nic.in/Useradmin/upload/10686012375dd3a4359690f.pdf
  • Parsoli Motors Works Pvt Ltd v. BMW India Private Limited, BMW India Financial Services Private Limited & Competition Commission of India
    Non-renewal of dealership Agreement does amount to abuse of dominant position-25 November 2019 (NCLAT JUDGEMENT)
    The National Company Law Appellate Tribunal (NCLAT) has held that non-renewal of a dealership Agreement after its expiry would not amount to an abuse of dominant position in terms of Section 4 of the Competition Act, 2002.
    The Judgement can be accessed at:
    https://nclat.nic.in/Useradmin/upload/10179876045ddcbaeacc21a.pdf
  • Sesh Nath Singh & Akhsar Kumar Singh v. Baidyabati Sheoraphuli Cooperative Bank Ltd & Animesh Mukhopadhyay
    Time spent for SARFAESI proceedings can be excluded for computing Limitation Under IBC-22 November 2019 (NCLAT JUDGEMENT)
    While computing the limitation period in respect of the section 7 application (for initiating insolvency proceedings) under the Insolvency and Bankruptcy Code, 2016 (IBC), the NCLAT has excluded the time during which the financial creditor had proceeded against the corporate debtor under SARFAESI Act, 2002 for the same relief.
    The Judgement can be accessed at:
    https://nclat.nic.in/Useradmin/upload/7867624225dd7d5465376e.pdf

COMPETITION

  • Competition Commission of India (General) Amendment Regulations, 2019-20 November 2019 (GAZETTE NOTIFICATION)
    The Competition Commission of India (CCI) has notified the above Regulations further to amend the Competition Commission of India (General) Regulations, 2009. They shall come into force on the date of their publication in the Official Gazette i.e 20 November 2019. The CCI will now be able to reveal the identity of informants who have filed information in a case before it, even if they have sought confidentiality, according to the new Regulations. Earlier, the identity of informants who had requested confidentiality could not be disclosed.
    Where it is expedient to disclose the identity of the informant for the purposes of the Act, the Commission shall do so after giving an opportunity to the informant of being heard,” the Competition Commission of India said.
    The Gazette Notification can be accessed at:
    http://egazette.nic.in/WriteReadData/2019/214225.pdf
  • Competition Commission of India (CCI) investigation finds units of SKF, Schaeffler, Tata Steel colluded on bearings prices-26 November 2019 (CCI UPDATE)
    An anti-trust probe has found that units of Tata Steel Ltd, Sweden's AB SKF and Germany's Schaeffler AG colluded on the pricing of bearings, according to an investigation report seen by Reuters. The Competition Commission of India (CCI) began an investigation in 2017 after receiving allegations of five companies colluding on bearings prices from 2009-2014 to pass higher raw material costs onto customers in the auto sector. CCI's investigations arm, in a report dated May 6 which has not been made public, said it analysed company emails, call records and executive testimonies and concluded that SKF India Ltd, Schaeffler India Ltd, National Engineering Industries and Tata Steel's bearings division contravened antitrust law by discussing and agreeing prices. The investigations arm said it found no evidence against the fifth firm, ABC Bearings, part of U.S. firm Timken Co, the report showed. ABC Bearings declined to comment. The report also showed the investigations arm considered the collusion lasted through the financial year to March 2011 but found no evidence to indicate when it actually ended. The four firms, “through personal meetings of key persons, on two occasions shared the strategic information regarding their future efforts to seek price increase from” auto sector companies, the investigations arm said in its 106-page report.
    The full text of the article can be accessed at:ReadMore

INFORMATION TECHNOLOGY

  • Decide mobile tower issue in 2 months -4 September 2019 (MADHYA PRADESH HIGH COURT ORDER)
    The High Court (HC) has directed Indore Municipal Corporation (IMC) to act according to law within two months, while disposing a Petition filed against installation of a 4G mobile tower in a residential area. The Petition against the mobile tower in Ward 78 of Bijalpur was filed by Makhan Choudhary before division bench of Justice SC Sharma and Justice Shailendra Shukla. The Petitioner’s counsel said the tower was installed in a densely populated area which is near to a Government Girls Secondary School and Aganwadi. It is against MP Land Development Regulations, 2012 which prohibits installation of towers in residential areas, argued the counsel. He also told the court that IMC, while replying to an RTI application filed to seek information about permission for tower installation, had revealed that no documents related to the tower were found in the records. The Order can be accessed at:ReadMore
  • Make My Trip (India) Private Limited v. Make My Travel (India) Private Limited
    Delhi High Court (HC) restrains MakeMytravel from using similar trade name as that of MakeMyTrip-18 October 2019 (DELHI HIGH COURT JUDGEMENT)
    Make My Trip (India) Private Limited (Plaintiff), incorporated in the year 2000 and one of the largest travel companies in the country sought permanent injunction restraining Make My Travel (India) Private Limited (Defendant) from adopting and using the similar trade name, tag line, and the MakeMyTravel Logo including their domain name makemytravelindia.com. The Plaintiff submitted that it is the registered proprietor of the MakeMyTrip Word Mark and MakeMyTrip Logo Marks. The Plaintiff came to know about the defendant and its Infringing Marks in the year 2017. On further investigation, the plaintiff found out that the defendant was also in the business of travel tours and packages and was offering services identical to that of the Plaintiff. According to the Plaintiff, due to extensive use spanning almost 17 years, the MakeMyTrip Word Mark is synonymous with high standards of quality in respect of services provided by the Plaintiff. In this case before the Delhi High Court, MakeMyTrip sought for permanent injunction restraining infringement of trademarks and passing off. The Defendant set up the plea of acquiescence, alleging that since the Plaintiff had previously not objected to the use of the name MakeMyTravel (India) Pvt. Ltd by the Defendant, it cannot now be permitted to object to the use of the said name. It had been further contended that Plaintiff and its officials were aware of the use of the letter mark MMT and the tagline ‘Dreams Unlimited’ and MakeMyTravel Logo by the Defendants since the year 2011 and thus the Plaintiff has acquiesced to the use of trademark/trade name MakeMyTravel, MMT and tagline ‘Dreams Unlimited’ and MakeMyTravel Logo for a continuous period of five years and cannot object to the use of the said marks. The Delhi High Court ruled that on comparison of the Defendant’s marks with those of the Plaintiff, one can easily notice that the same are phonetically, visually, structurally and conceptually identical/deceptively similar to the Plaintiffs MakeMyTrip Marks. The Defendant has not offered any plausible explanation for adoption of the infringing marks. The mark MakeMyTrip and MakeMyTravel are combination of three words where the two words are identical and the last word travel and trip convey the same meaning, idea and concept. The Court was of the opinion that in case the Defendant is permitted to continue to use infringing marks, grave and serious prejudice is likely to be caused to the Plaintiff. Further, the adoption of the mark by the Defendants did not have any cogent explanation, and prima facie appeared to be dishonest. Therefore, it the Court was not ready to accept that the Plaintiff had acquiescenced the use of the infringing mark by the Defendant. Further, the Court held that acquiescence is sitting by when another invades your rights and spends money in the doing of it. It is conduct incompatible with claims of exclusivity, but it requires positive acts, not mere silence or inaction. Acquiescence is not mere negligence or oversight. There must be the abandonment of the right to exclusivity. The High Court thus allowed the Petition and upheld the injunction order dated 17th May 2018.
    The Order can be accessed at:
    http://lobis.nic.in/ddir/dhc/SVN/judgement/19-10-2019/SVN18102019SC8892018.pdf
  • K N Govindacharya v. Union of India & Ors
    WhatsApp surveillance spyware: Supreme Court (SC) refuses to entertain Petition by RSS ideologue-2 December 2019 (SUPREME COURT ORDER)
    The Supreme Court (SC) asked former RSS ideologue KN Govindacharya to withdraw his Petition seeking perjury action against WhatsApp after the NSO Group surveillance scandal surfaced. The Petition had sought action against the Facebook subsidiary for perjury on the grounds that WhatsApp claims that there is end-to-end encryption in the app which protects the same from being breached. A Court monitored SIT to look into the matter was also prayed for by Petitioner. Senior Counsel, representing the respondent, told the Court that a number of matters concerning Facebook and WhatsApp already stood transferred to the Supreme Court. The Supreme Court, however, was not inclined to entertain the Petition on account of mistakes in the same. It thus asked Govindacharya to withdraw the Petition. Counsels for the Petitioner. withdrew the Petition and sought liberty to file an amended Petition. The Petition had been moved last month calling for a National Investigation Agency (NIA) probe in the wake of the recent NSO Group snooping scandal. The plea further contends that WhatsApp is liable for perjury, in view of its earlier submissions before Court that the content exchanged on its platform is secure owing to its end to end encryption policy. The scandal relates to claims that several mobile users were surveilled after a spyware - Pegasus – was activated on their phones through WhatsApp. The targeted persons could be tracked through the data on their phone, including location services, camera and audio facilities, WhatsApp content, emails etc.
    The Order can be accessed at:ReadMore

 

Disclaimer “This information has been gathered from various sources. Nothing herein is or may be construed as legal advice”.