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Delhi High Court dismissed the petition seeking over-rule of the judgement of trial court.

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Title: YASHODA THAKORE versus KUCHIPUDI DANCE CENTRE AND ORS

Decision on: 12.07.23

+ CM(M)-IPD 10/2023 & CM APPL. 27785/2023

CORAM: HON’BLE MR. JUSTICE C.HARI SHANKAR

Introduction

Delhi High Court dismissed the petition seeking over-rule of the judgement of trial court, under article 227 of the constitution of India

Facts of the case

A well-known and reputable dancer named Swapnasundari filed CS (Comm) 671/2021 before the learned District Judge (Commercial Court) (hereinafter referred to as “the learned Commercial Court”) against one of her students named Yashoda Thakore, who had given a dance performance in St. Petersburg, Russia, in the months of January 2012 and 2013. Swapnasundari argued that the aforementioned dance piece was her original work, over which she owned the copyright, and that Ms. Thakore had violated her copyright by performing the dance piece for a profit without her consent or authorization.

The petitioner filed an application with the learned Trial Court pursuant to Order VII Rule 10 of the Code of Civil Procedure, 1908 (CPC), arguing that the lawsuit was defective for lack of territorial jurisdiction and requesting that the respondents return the lawsuit so that it can be filed with a court that has the authority to hear the case.

The aforementioned application was turned down by the learned District Judge (Commercial Court) (“the learned Commercial Court”) in an order dated April 28, 2023. The petitioner has challenged this decision by this current petition, which was filed in accordance with Article 227 of the Indian Constitution.

Analysis of the court

A reading of the impugned order dated 28 April 2023, of the learned Commercial Court, reveals that the learned Commercial Court has essentially proceeded on the basis of the principles enunciated by the Division Bench of this Court in Ultra Home Construction Pvt. Ltd. v. Purushottam Kumar Choubey.

learned the petitioner’s attorney does not contest the decision in Ultra Home Construction relevance to the current case. However, he argues that the decision in Ultra Home Construction4 is per incuriam because it violates the explanation to Section 6 of the Commercial Courts Act, 2015, which it omits to mention and which, in his view, must be given a strict interpretation in accordance with a catena of relevant authorities. He also cited the Supreme Court’s decision in Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. After hearing the petitioner, I’m sorry I can’t support his claim.

Following the Supreme Court’s ruling in Indian Performing Rights Society Ltd. v. Sanjay Dalia, the Division Bench of this Court has unequivocally held in Ultra Home Construction that Section 62 of the Copyright Act provides an additional forum for institution of a suit alleging copyright infringement, over and above the forum which, by operation of Section 20 of the CPC, would have jurisdiction in the matter. (The relevant para referred from Ultra Home Construction  were para 13 to para 22 and para 52.)

Therefore, it is abundantly clear that the non obstante clause, with which Section 62 of the Copyright Act commences, allows a plaintiff to bring a lawsuit where she or he resides or works for pay, in addition to the venue for institution of the suit as contemplated by Section 20 of the CPC. This is supported by both Indian Performing Rights Society6 and Ultra Home Construction4. The sole restriction on this entitlement is that the lawsuit must be filed in the location where the plaintiff’s primary place of employment is located, not in some other remote location where the plaintiff may also maintain a secondary office. This caveat has no application in the present case, on facts.

Therefore, it is impossible to interpret Section 6 of the Commercial Courts Act as a clause that precludes the application of Section 62 of the Copyright Act. When combined with Sections 16 to 20 of the CPC, Section 6 of the Commercial Courts Act operates in a separate domain. That area is unique and different from the area covered by Section 62 of the Copyright Act, as stated by the Supreme Court in Indian Performing Rights Society and the Division Bench of this Court in Ultra Home Construction. Both cases make it clear that a plaintiff desiring to file a lawsuit for copyright infringement may do so within the Court’s territorial jurisdiction or under Section 62 of the Copyright Act or under Section 16 to 20 of the CPC. 

The plea, of petitioner, that Ultra Home Construction is per incuriam is, therefore, completely bereft of merit.

Now that the Supreme Court’s ruling in Solidaire has been brought up, it is clear that the disagreement in that case is fundamentally different from the conflict that emerges in the current case in both contour and complexion. In that instance, the Court was concerned with a scenario in which there were two statutes, each of which was determined to be a special legislation, granting jurisdiction over the same cause of action to two distinct Courts. The Special Court (Trial of Offences Relating to Transactions and Securities) Act, 1992, and the Sick Industrial Companies (Special Provisions) Act, 1985, were found to be in conflict with one another on the issue of territorial jurisdiction, which is a significant finding in the aforementioned decision.

There is undoubtedly no contradiction between Section 62 of the Copyright Act and Sections 16 to 20 of the CPC in light of the Division Bench’s decision in Ultra Home Construction. They complement one another, and neither service displaces the other. Therefore, the petitioner cannot benefit from the ruling in Solidaire.

Petitioner has openly stated that the matter would have been decided by Ultra Home Construction’s ruling had it not been for his claim that it violates Section 6 of the Commercial Courts Act. In light of the aforementioned, the learned Commercial Court’s decision to rule as it did cannot be said to have been factually, legally, or jurisdictionally incorrect.

Because of this, the challenged order does not warrant interference within the narrow scope of this Court’s authority granted by Article 227 of the Indian Constitution. As a result, the petition is denied in part.

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Delhi High Court Dismissed the writ petition and upheld the verdict of the Central Administrative Tribunal, Principal Bench, New Delhi

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Title: Hansraj vs Commissioner of police & Anr.

Judgment delivered on: July 12, 2023

 + W.P.(C) 6490/2021

CORAM: HON’BLE MR. JUSTICE V. KAMESWAR RAO

    HON’BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA

Introduction

Delhi High Court dismissed the writ petition filed against the order of the Central Administrative Tribunal, Principal Bench, New Delhi (‘Tribunal’, for short) in Original Application No.4666/2014 (‘OA’, for short) whereby the Tribunal has dismissed the OA filed by three persons including the petitioner herein.

Facts of the case

The ruling dated March 10, 2014, which allowed the petitioner(s) to argue that their training period should be counted when they were promoted to Head Constable (Assistant Wireless Operator) (‘HC (AWO)’, was challenged in the OA by the petitioner(s) therein was rejected for the purpose of increment(s).

The petitioner Hansraj (who filed this case) was first hired as a constable on August 7, 1991, and on August 7, 2000, he was elevated (absorbed) to the position of HC (AWO) in the Delhi Police’s Communication Unit. The appointment of Radio (Wireless) and MT Staff is governed by Rule 17 of the Delhi Police (Appointment and Recruitment) Rules, 1980 (the “Rules of 1980,” for short), and the appointment of AWOs and Teleprinter Operators (HC) is governed by Rule 17-B(IV). The appointment of Assistant Wireless Operator Grade-III (HC) and Teleprinter Operator Grade-III (HC) in the Delhi Police is covered by Standing Order No. 223/86, which is in line with Rule 17-B(IV) of the modified Rules, 1986, read in conjunction with Rule 13(ii) of the Rules of 1980. Following completion of the VHR R.T. Course Grade-III and six months of radio operator experience, confirmed (Matriculate) Constables were to be given the opportunity to be promoted to the coveted position.

According to the office order, a preliminary selection test was held, and those who received 33% or higher on each paper were chosen to enrol in the AWOs / Teleprinter Operator (HC) programme for a total of nine months, including three months of practical training, in batches. The constables are expected to take a test administered by the Trade Test Board, designated by the Commissioner of Delhi Police, after completing the AWO/TPO Grade-III Course, and they must receive the appropriate score in accordance with Standing Order No. 223/86.

According to Rules from 1980, the names of the constables chosen by the DPC are listed on List B (Technical) in the order of their seniority in the rank of Constable in their respective categories A promotion order is then issued in accordance with Rule 7 of the Rules of 1980.

Analysis of the court

The order dated March 10, 2014, which was based on the petitioner/applicants’ representations on October 8, 2013 and November 27, 2013, was challenged before the Tribunal. In their representations, they requested that the training period for promotion to the post of HC (AWO) be counted for the purpose of increment(s) in the scale of the concerned post.

AWO/Teleprinter Operator (HC) Course for a period of nine months, including three months of practical training in batches according to the merit list, followed by AWO/Teleprinter Operator (HC) Course for a period of nine months, including three months of practical training in batches according to the merit list, which is also followed by a test conducted by the Trade Test Board, may be stated here. According to the respondents’ position, which was noted above, it is clear that the final promotion order to the post

Accordingly, promotion orders are issued and the chosen constables are added to List B (Technical) in the order of their seniority. Direct recruiting does not follow the aforementioned process. There is unquestionably no reason to calculate the training time for the purpose of awarding increment(s), much less on the post of Head Constable, when the constable is still in the training phase and has not been officially or by an order promoted to that position. Only after receiving an order of promotion as HC (AWO) would a constable begin serving in the position of head constable. The petitioner’s claim that the training duration is not taken into account for the purpose of increment(s) in the grade of Constable

In other words, the petitioner was working as a constable during the training period rather than a Head Constable; as a result, the time would only be relevant for the purpose of awarding an increase on the position of Constable and not Head Constable. We previously discussed the respondents’ position on why a directly hired HC (AWO) / Teleprinter Operator is entitled to the scale of Head Constable; specifically, that the straight recruit Head Constable must complete training after being hired as HC (AWO) / Teleprinter Operator.

The Madras High Court’s ruling in Nuclear Power Corporation & Anr. (supra), in which OMs dated October 22, 1990 and March 31, 1992 were mentioned, is not applicable to the facts of this case, especially in light of the position under the Rules of 1980. In the aforementioned instance, the Department of Atomic Energy; Madras Atomic Power Project, an enterprise of the Government of India, issued an invitation for applications to the post of Stipendiary Trainees under several employment categories. A number of applicants were chosen and hired as stipendiary trainees with combined monthly compensation. The trainees were assimilated and assigned to the regular positions of Tradesman-B, bearing the normal time scale of pay, and Apprentice after successfully completing the training term.  In accordance with how well they performed during the training time, they were also granted one or two increments. According to the DoP&T’s OM dated October 22, 1990, a person who is chosen for a regular appointment and who must complete training before officially taking over the post may be treated as working for the purpose of receiving raises during the training period, whether they are receiving pay or a stipend. The benefit in question was given starting on October 1, 1990. A second OM, issued March 31, 1992, extended the same benefit to government employees who had received the training on or after January 1, 1986, with real benefits beginning on October 1, 1990. This OM was the one that came after the first.

Here, it is not the case. As a matter of fact, the aforementioned OMs apply to the position of HC (AWO)/Teleprinter Operator when the appointment is made through direct recruiting, but not to the position of HC (AWO) when the appointment is made through promotion.

 Therefore, we believe that the Tribunal’s decision to dismiss the OA cannot be criticised. We find no justification for interfering with the Tribunal’s contested order. The writ petition is rejected because it lacks any merit.

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Delhi High court Dismissed the appeal against the order of the Income Tax Appellate Tribunal

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Title: THE COMMISSIONER OF INCOME TAX – INTERNATIONAL TAXATION -3 vs SPRINGER NATURE CUSTOMER SERVICES CENTRE GMBH (EARLIER KNOWN AS SPRINGER CUSTOMERS CENTRE GMBH)

Judgment Reserved on: 25.05.2023  

Judgment Pronounced on: 12.07.2023

+ ITA 306/2023

CORAM: HON’BLE MR JUSTICE RAJIV SHAKDHER

   HON’BLE MR JUSTICE GIRISH KATHPALIA

Introduction

Delhi High court Dismissed the appeal against the order of the Income Tax Appellate Tribunal concerning Assessment Year (AY) 2013-14. Via the impugned order, the Tribunal has partly allowed the appeal preferred by the respondent/assessee.

Facts of the case

On March 31, 2015, the respondent/assessee submitted its return of income (ROI) for the pertinent AY, which was 2013–2014. The respondent/assessee originally processed its declaration of “nil” income under Section 143(1) of the Income Tax Act of 1961 through the aforementioned ROI. However, the ROI was chosen for examination, and as a result, the respondent/assessee was served with a notice dated 20.08.2015 issued under Section 143(2) of the Act. Three increases to the respondent’s income were made by the Assessing Officer (AO) through order dated 04.05.2016, which was issued in accordance with Section 143(3) read with Section 144C(3)(a) of the Act.

The first addition dealt with a sum equal to Rs. 24,84,114 being paid to the respondent/assessee by Springer India Pvt. Ltd. (also known as “SIPL”) in India in accordance with a Commissionaire Agreement. This addition was made up of two parts. The second increase, which the AO made, was for Rs. 16,67,83,110. This sum reflected the subscription costs the respondent/assessee had paid to two Indian companies, Informatics Publishing Private Ltd. and ZS Associates, for e-journals. The third increment amounts to Rs. 2,62,85,504 in total. On behalf of SIPL, the respondent/assessee collected this sum from Indian-based third parties whose consumers were purchasing online journals and/or books. The aforementioned sum is listed as “gross proceeds from sale by AE (Associate Enterprise) of Indian journal in printed form” in SIPL’s Form 3CEB report.

The AO saw the aforementioned three additions as royalties, and to that end, it made use of Section 9(1)(vi) of the Act and Article 12 of the Double Taxation Avoidance Agreement between Germany and India (often known as the “DTAA”). The respondent/assessee opted to file an appeal with the Commissioner of Income Tax (Appeals) (abbreviated “CIT(A)”) because it was unhappy with the changes that had been made. In a ruling dated 22.01.2019, the CIT(A) partially upheld the appeal. The second part of the initial addition, which was equal to Rs. 1,94,279 and had been labelled as “service charges” for the sale of “Indian journals in printed form,” was eliminated by the CIT(A). Insofar as the second and third additions were concerned, the CIT(A) confirmed the same, i.e., both with regard to the amount, as well as the treatment accorded to them by the AO. In other words, these amounts were treated as royalty, by the CIT(A) as well.

It is this decision which led to the respondent/assessee preferring an appeal with the Tribunal. As mentioned above, the CIT(A) affirmed the deletion of the first component of the first addition by the Tribunal in the assailed order dated 14.10.2022. The Tribunal cited a ruling issued by its coordination bench in the case of Springer Verlag GmbH v. DCIT in ITA Nos. 434 and 3826/DEL/2019, which was rendered on August 23,2022. The AYs 2014–15 and 2015–16 were covered by the Tribunal’s ruling.

Regarding the second addition, the Tribunal overruled the respondent/assessee’s argument, which claimed that the subscription fee could not be considered a kind of royalty. Regarding this matter, the Tribunal adhered to the ruling made by the Supreme Court in Engineering Analysis Centre of Excellence (P.) Ltd. v. CIT, [2021] 432 ITR 471 (SC).

Analysis of the court

In this case, the Tribunal disagreed with the CIT(A)’s conclusion. There was Rs. 22,89,835 at stake. The services provided by the respondent/assessee must unquestionably come within one or more of the following categories, namely managerial, technical, or consulting services, in order for this addition to be upheld as FTS. This is clear from a straightforward reading of Section 9(1)(vii)(b) of the Act, read with Explanation 2, and Article 12(4) of the DTAA.

Section 9 establishes a deeming fiction for income accruing or generating in India, which includes, among other things, FTS paid by a resident. Explanation 2 to the aforementioned provision defines FTS as any payment (including lump sum payments) for the provision of managerial, technical, or consulting services. Payments for the recipient’s own construction, assembly, mining, or similar projects are not considered to be FTS, nor are payments that would otherwise be considered compensation subject to taxation under the “salaries” heading.

As a result, the services provided by the respondent/assessee under the Commissionaire Agreement must fall under one or more of the aforementioned categories, namely management, technical, or consultant services, in order for the consideration received to be considered FTS. The respondent/assessee received a commission for providing the services at a rate of 9.9% on the net revenue total of “any and all” sales commissioned through the respondent/assessee’s intermediary. The assessor/respondent was authorised to keep the commission while transferring the revenue to SIPL or by any other commission payment arranged between SIPL and itself.

Nothing in the Commissionaire Agreement suggests that the respondent/assessee was required to identify, create, define, or evaluate the goals that SIPL needed to achieve, or even to frame the policies that led to these goals, supervise, carry out, or modify already-adopted policies. In a sense, the respondent/assessee was not carrying out executive or supervisory duties. The respondent/assessee was only required to provide assistance with company operations.

We do not feel motivated to challenge the Tribunal’s judgement on the removal of the added item in the sum of Rs. 22,89,835, on account of commission that the respondent/assessee got. We believe that the CIT(A) erred in concluding that the respondent/assessee’s receipt of the aforementioned sum possessed FTS characteristics.

The coordination bench judgement of this Court in DIT v. Panalfa Autoelektrik Ltd. addressed the characteristics of what constituted FTS in great detail. The coordination bench has addressed the order issued by the Authority for Advance Ruling (AAR) in Wallace Pharmaceuticals (P.) Ltd. in this ruling. Mr. Bhatia’s attempt to separate the ruling in DIT v. Panalfa Autoelektrik Ltd. must fail because it misinterprets the judgment’s real ratio.

The second addition is therefore brought into focus. We must note that Mr. Bhatia stated during the argument that the additional Rs. 16,67,83,110/- that the respondent/assessee received from its affiliates as a subscription fee for e-journals could not be considered a royalty due to the ruling made by the Supreme Court in Engineering Analysis. The idea that the subscription fee should be classified as FTS or, alternatively, as royalty has been raised for the first time in the written submissions, in contrast to the submission.

According to us, the argument that a subscription fee should be classified as FTS cannot be recognised because the appellant and revenue did not take this stance before the Tribunal. This flip-flop was made by respondent/assessee would do well to abjure. 

Considering that there is no evidence on file indicating that the respondent/assessee has granted the right in respect of copyright to the relevant subscribers of the e-journals, we also believe that the subscription fee cannot be classified as royalty. The only thing the respondent/assessee did was sell the publication that was protected by a copyright to the relevant organisations without granting any copyright to the content in question.

Given the ruling issued by the Supreme Court in the instance of Engineering Analysis, we believe the Tribunal acted correctly when it erased the addition made under this heading. For the aforementioned causes, we believe that there isn’t a significant legal issue that warrants our examination. The judgements mentioned above address the problems that were presented.

 As a result, the appeal is dismissed.

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Writ petition filed in contrary to termination of membership in the society – stands dismissed by Punjab High court

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 TITLE: Maninder Pal v Chandigarh Sector 16 Co-operative House Building Society Ltd. and Others

Decided On-: May 17, 2023

CWP No. 11685 of 2009 (O&M)

CORAM: Hon’ble Justice Mr. Jaishree Thakur  

INTRODUCTION-  The current writ petition was submitted in accordance with Articles 226 and 227 of the Indian Constitution, asking that a writ in the nature of a Mandamus be issued, ordering the respondents to permit the petitioner to continue to be a member of the respective society.

FACTS OF THE CASE-

The petitioner was the original member of the first respondent society, Chandigarh Sector 16 Cooperative House Building Society Limited (hereinafter referred to as “the Society”), which was registered under the terms of the Punjab Cooperative Societies Act, 1961, as it applied to the Union Territory of Chandigarh, and which had a share certificate number of 75 dated 28.02.2002 (Annexure P-4). She gave the Society a total deposit of Rs. 7,96,000/- for the purpose of paying the land and building costs for the category “B” flat. She repeatedly contacted the Society to inquire about the status of the apartment and any outstanding debts, but she was ignored. a dated legal notice 07.08.2007 and a reminder dated 27.08.2007 were served to the Society via Regd. A.D., but the petitioner never heard back from the Society. After learning that the Society would begin turning over the possession of flats on September 5, 2007, the petitioner’s husband made a trip to the respondent’s office on September 6, 2007, but that too ended in failure.

The petitioner then filed a revision petition in opposition to the order dated 19.11.2008 (Annexure P/16) expelling him from the respondent Society, which was also denied by the Advisor to the Administrator, U.T. Chandigarh, in an order dated 18.03.2009.

The current petition was submitted out of resentment over the petitioner’s membership in the respondent—Society being terminated.

COURT ANALYSIS AND DECISION

The petitioner’s knowledgeable attorney will argue that the petitioner was one of the Society’s founding members and that he or she actually paid the sum of Rs. 7,96,000/- towards the demand made for the allocation of a B-Category flat in the Society. The petitioner had a membership that included Share Certificate No. 75 and Folio No. 106. Despite the petitioner making several trips to the Society’s office, the flat was not assigned to her. It is argued that the lack of a notice prior to the membership cancellation violates natural justice’s rules and principles.In light of this, a writ petition has been filed, asking that the orders that have been made merit being overturned, restoring the petitioner’s membership, and allowing her to pay the outstanding dues as a result.

Contrarily, knowledgeable counsel representing the respondents would argue that there is no defect with the orders thus passed and that the Society was forced to expel the petitioner from membership in the Society because she was a defaulter because there was no other course of action. She was allegedly given several chances to pay off the Society’s unpaid debts, but she declined to do so. Numerous notices were sent out, and even though they demanded payment of the outstanding balance, the petitioner neglected to respond. As such, the petitioner does not deserve any relief

The court held “In a cooperative society, it is the responsibility and duty of each and every member of the society to contribute his money in time for construction of the dwelling unit and without contributing the amount, a project cannot be completed. The appellant has failed to deposit the amount legally due to her. Thus, the expulsion of the appellant from the society is valid”

Writ petition – dismissed

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No substantial question of law – regular second appeal dismissed by Punjab High Court

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TITLE: Ram Kumar and Others  v Naveen Kumar

Decided On-: March 14, 2023

RSA-867-2022 (O&M)

CORAM: Hon’ble Justice Ms. Alka Sarin

INTRODUCTION-  The Plaintiff-Appellants have filed this regular second appeal in opposition to the concurrent findings of fact that were made by both Courts below and were included in the contested judgment and decrees.

FACTS OF THE CASE-

The plaintiff appellants claimed in their declaration and permanent injunction lawsuit that they were the owners and in possession of Khewat No. 36 Khasra No. 588, measuring 11 Kanals 7 Marlas and located in the revenue estate of Jhajjar, Tehsil and District Jhajjar. These brief facts are pertinent to the current lawsuit. According to an allegation, the plaintiff-appellants’ father built a house, which was later demolished because it was too old. The plaintiff-appellants then built five separate homes, where they have lived for the past 20 years or so. Furthermore, it was argued that the plaintiffs, appellants, owned a 50/227 share of the entire property.

The argument made was that because the agreement was unregistered, it did not grant the defendant-respondents any rights, titles, or interests and that they had no right to interfere with the plaintiff-appellants’ exclusive possession based on any sale deed. In their written statement, defendants Nos. 1 and 2 raised the defences of maintainability, locus standi, cause of action, and concealment of facts. On the merits, it was alleged that the plaintiff appellants own 50 shares out of a total of 227 shares, or 2 Kanals and 10 Marlas, of the total amount of land measuring 11 Kanals and 7 Marlas.

Additionally, it was claimed that the plaintiffs and appellants were Daya Chand’s heirs and that they held more of the suit land than their share of ownership, totaling 50/227 shares, or 2 Kanals and 10 Marlas.

In addition, it was claimed that defendant and respondent No.

agreement to sell relating to the 14 Marlas owned by Mohar Singh, from which some property had been bought in the name of the wife of the defendant-respondent No. 1. The defendant-respondents were further asserted to have limited their activities to his ownership and the scope of his rights under the agreement to sell dated 06.02.2013.

It was not filed a replication.

COURT ANALYSIS AND DECISION

The plaintiff-appellants’ knowledgeable attorney would argue that the lower courts erred in only partially deciding the case, that defendant-respondent No. 3 has no right, title, or interest in the suit property, and that a restraint order should have been issued against her as well.

Heard. The plaintiff-appellants failed to demonstrate their exclusive possession of the suit property, it was concurrently determined. I don’t see any reason to disagree with the concurrent findings of fact made by both courts below given the lack of any evidence demonstrating their exclusive possession over the suit property and the fact that the sale deed Ex.D/1 dated 25.03.2013 was validly executed. The plaintiff appellants have correctly been denied the relief of declaration, and they have additionally correctly only been granted the relief of an injunction against defendant-respondent Nos. 1 and 2. In light of the aforementioned, I do not think the current regular second appeal has any merit. No legal issue, much less any significant legal issue, arises for determination in the present which is wholly devoid of any merit

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