Counsel must exhibit circumspection in the number of cases they cite: Supreme Court

Today, a division bench of the Supreme Court of India (“Supreme Court”) has made an important observation (Rashmi Metalinks Ltd. & Ors v.Kolkata Metropolitan Development Authority & Ors.) regarding the plethora of cases cited by the counsels. The Court observed that:

                                       “This Court, and even more so the High Court as well as the subordinate courts have to face lengthy arguments in each case because of the practice of citing innumerable decisions on a particular point of law. The correct approach is to predicate arguments on the decision which holds the field......”

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The problem, according to the bench of Justice T.S. Thakur and Justice Vikramajit Sen, is not with the cases which deal with different questions of law. But, the main problem arises when each of the cited cases deals with the same question of law in the same manner. Senior Advocates K.V. Vishwanathan and A.M. Singhvi had appeared for the appellants and the respondents respectively. Both of them relied heavily on numbers on judgments of the Supreme Court which, in the opinion of the Court, were similar in nature. According to the court:

"Extra-Marital Relationship" may not amount to "Cruelty" under Section 498A, Indian Penal Code, 1860

In an important case (Pinakin Mahipatray Rawal v. State of Gujarat) where the question whether ‘extra-marital relationship’ could be considered as ‘cruelty’ under Section 498A of the Indian Penal Code, 1860 (“Penal Code”) had arisen, the Supreme Court of India (“Supreme Court”) has answered the question in negative. The case involved a situation where the deceased, wife of Accused-1 (“A-1”), had committed suicide following an alleged extra-marital relationship between A-1 and his colleague, Accused 2 (“A-2”). On being tired by the lower court, A-1 was convicted under Section 498A and 306 of the Penal Code. While A-2 and A-3 (‘Mother of A-1”) were acquitted of various alleged offences, A-1 was also acquitted of offence under Section 304B.

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Section 498A provides for the offence of cruelty by the husband or his relatives and Section 306 of the Penal Code provides for the offence of ‘Abetment of Suicide’. It was the case of the prosecution that the deceased had taken the step of committing suicide because of the alleged extra-marital relationship between A-1 and A-2. This relationship, according to the prosecution, had amounted to cruelty under Section 498A of the Penal Code. Though there was no evidence of any physical harm to the deceased, the prosecution rested its case on the basis of mental cruelty, as can be derived from explanation to Section 498A. With respect to the abetment of suicide, prosecution had relied on Section 113A of the Indian Evidence Act, 1872 (“Evidence Act”) where a presumption can be made that the husband or his relatives has abetted the suicide if the same takes place within 7 years of marriage.

Securities Law Amendment Ordinance, 2013: Why SEBI should use its new power with much restraint & caution

As we have already discussed here the wide powers conferred upon SEBI by the virtue of Securities Law Amendment Ordinance 2013, I shall be discussing, in this post, as to why the newly unfettered powers granted to SEBI must be exercised with great caution and restraint. Further, the powers which are handed over to SEBI by way of an Ordinance are sought to be vested permanently by the Parliament. Thus, an analysis of some anomalous amendments emanating in Securities Law Amendment Ordinance 2013 would follow now.

Now the Ordinance has proposed five fundamental and essential changes to the prevailing statutory framework of securities regulations in India. The five changes, as introduced, are listed below-

I.       Giving explicit statutory recognition to the process of Consent Order.

II.    Widening of regulatory net for Collective Investment Schemes (CIS) and Ponzi Schemes

III.  According statutory approval and sanction for taking away fraudulent and ill gotten gains from the violators commonly known as disgorgement.

IV. Granting search and seizure powers to SEBI

V.    Enhancement of power to seek information pertaining to its investigative role.

Section 28(3) of Trade Marks Act Protects Infringement Only for Similar Goods: Delhi High Court

Last week, Delhi High Court had to decide a trade mark dispute where an issue had arisen with respect to the usage of two similar trademarks. In A. Kumar Milk Foods Pvt Ltd. v. Vikas Tyagi& Ors, an injunction had been sought against the defendant for restraining it from using the trade mark which had alleged deceptive similarity with trade mark of plaintiff. The plaintiff, A. Kumar Milk Foods Pvt Ltd., was the proprietor of the registered trade mark, ‘SHRIDHAR’, which had been granted for Class-29 goods such as ghee, edible oils, milk, dairy products etc. The Defendants, Vikas Tyagi and M/s. Shreedhar Dairy Products, were the proprietor of a similar trade mark, ‘SHREEDHAR’, but the same had been granted for the Class-30 Goods, i.e., Atta, Maida and Besan. Though the defendants had also sought registration of ‘SHREEDHAR’ for Class-29 goods, the application is still pending and the same has been opposed by the plaintiff.

(Image Source: Apex Law Group LLP)

In the present case, it had been claimed by the plaintiff that its trade mark had become distinctive and is associated with the above-mentioned Class-29 goods on account of its long, continuous and extensive use. The main problem of the plaintiff is the usage of trade mark, ‘SHREEDHAR’, by the defendant with respect to Class-29 goods since the same Class-29 goods are sold by the plaintiff under the trade mark, ‘SHRIDHAR’. As the impugned Class-29 goods are sold by the defendant under the trademark which is deceptively similar to that of the plaintiff, the same, according to the plaintiff, is the infringement of its trade mark. Further, it was the contention of the plaintiff that such an activity on the part of defendant has also lead to passing-off the impugned Class-29 goods as its goods. On the other hand, it has been the contention of the defendants that they have been using the trade mark, “SHREEDHAR”, since October 2003 and that their use of the trade mark was prior than that of the plaintiff. Contrary to the submissions of plaintiff, defendants submitted that it is the plaintiff which had copied its trade mark.

Bilateral Investment Treaties and their overriding effect over sovereign law

Bilateral Investment Treaties (BIT) are agreements entered into between two sovereigns with the fundamental objective of promoting investments. While such international commitments do ensure an influx of foreign capital, they often undermine the legislative framework of the countries parties to the agreements. 

In an erudite article in the The Hindu, Mr. Deepak Raju and Mr. Prabhash Ranjan have pointed out the danger of entering into such agreements in relation to hazards they pose to public health.

Key Features of The Pension Fund Regulatory and Development Authority Bill, 2013

Recently, Parliament has passed The Pension Fund Regulatory and Development Authority Bill, 2013 (“Pension Bill”) which seeks to provide for the establishment of a statutory Pension Fund Regulatory and Development Authority (PFRDA) to promote old age income security.[1] The Bill, which is divided into 10 chapters and 56 clauses, has the following key features:

Pension Fund Regulatory and Development Authority (Chapter II): The Bill provides for the establishment of the Pension Fund Regulatory and Development Authority (“Authority”) with its head office in the National Capital Region. The members of the Authority will be appointed by the Central Government and there shall be one member each from the field of economics, finance, law or administrative matters. Apart from the Chairperson, there will be three whole-time and three part-time members. While Chairperson and whole-time members will hold the office for a period of five, the tenure of a part-time should not ‘exceed’ five years.

(Image Source: Emirates 24|7)

Clause 6 of the Pension Bill provides for the conditions (five conditions in total) which can lead to the removal of the Chairperson or any other member of the Authority. If sought to be removed for acquiring interest which is prejudicial to the function as a member or for the reason that his continuance in the office is against public interest, the concerned member will be given an opportunity to be heard.

Delhi High Court directs University of Delhi to re-compute marks in LLB Entrance

In yet another case (Ram KumarJha v. University of Delhi & Ors.) of wrong answer key in an entrance exam, Delhi High Court High Court on Monday has directed the University of Delhi, respondent, for re-computing the score of the petitioner-student, Ram Kumar Jha. The petitioner, who had appeared for the entrance test (2013-14) of Faculty of Law, University of Delhi, was not satisfied with his result. On obtaining his answer sheets and copies of questions via an RTI application, the petitioner noted that answer key in respect of two questions were not correct.

(Image Source: University of Delhi Website)

Consequently, the petitioner approached the High Court for directing the respondent to rectify the answer and to take the admission of the petitioner. The High Court, while accepting the contentions of the petitioner, held that it would be failing to discharge its duty if it does not correct answers which are patently wrong:

                                       “It is  true  that ordinarily  the  Courts should  not  interfered  with  the answers  notified  by  the  examiners  but,  where  the  Court  finds  that  the answer  contained  in  the  answer  key  in  respect  of  a  particular  question cannot even be  said one of the possible correct and appropriate answers, not to speak of the most appropriate answer, the Court would be failing in its duty, if it  does not correct such patently wrong answer and leaves a wronged  candidate  remediless,  particularly  when  the  question  under consideration relates to a field of law.”

Hearing Affected Party not Necessary for "Further Investigation" under Section 26(7) of the Competition Act, 2002

Delhi High Court has recently, in South Asia LGP Company Private Limited v. Competition Commission of India & Ors, held that the affected party does not have a right of hearing before the Competition Commission of India (“Commission”) can order a further investigation under Section 26(7) of the Competition Act, 2002 (“Competition Act”).

In the present case, a complaint was made against the petitioner, South Asia LPG Company Private Ltd, by the respondent no.3, East India Petroleum Private Limited. It was alleged in the complaint that the petitioner was misusing its dominant position in the terminaling services at Vishakhapatnam Port. The relevant market under Section 2(r) of the Competition Act, as identified by the Director General, was ‘upstream and downstream terminaling services at the Vishakhapatnam Port’.

The Commission, under Section 19 of the Competition Act, may inquiry to check whether there has a contravention of the provisions contained in subsection (1) of Section 3 or subsection (1) of Section 4. The said inquiry can be initiated by the Commission either suo moto or on a reference by the government/statutory authority or on receipt of information from a person, i.e., complainant. If Commission is of the prima facie opinion that there is an alleged contravention of the provisions, it can then direct the Director General under Section 26(1) to cause an investigation into the matter.[1]In case the Director General comes to the conclusion that no contravention of the impugned provisions have been made, the complainant is provided with an opportunity to rebut such findings of the Director General under Competition Act.

Is there any Right of Representation by Counsel in an Arbitration Proceeding?

In what can be considered as an important issue for arbitration jurisprudence in India, constitutionality of the clause 15.22 of Multi-Commodity Exchange of India Ltd (MCX) has been challenged before the Madras High Court (Source: The Hindu, The Business Standard and The New Indian Express newspapers).[1] The issue is important since the impugned clause prohibits the parties to represent themselves by counsel, attorney or advocate in an arbitration proceeding.[2] Clause 15.22 of the by-law reads as:

“...15.22 Appearance by Counsel, Attorney or Advocate not permitted

In arbitral proceedings, the parties to the dispute shall not be permitted to appear by counsel, attorney or advocate.”

In the present petition, it has been contended that the impugned clause violates the right to avail the legal assistance in an arbitration proceedings. It was further contended that any award, which is made without allowing the petition to appear by a legal counsel before the arbitration proceedings, can be challenged under Section 34 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”). Under Section 34 of the Arbitration Act, an arbitral award may be set aside by the court if the party can show that it could not present the case. This comes down to the question whether, in the absence of a counsel or attorney or advocate, it can be said that the concerned party was not able to present its case before the arbitral tribunal.