0

Delhi High Court Dismissed the appeal challenging the order of a district court due to lack of filing of written statement on time.

Blog , , , , , , , , ,

Title: SANTOSH KUMAR AGGARWAL vs M/S ALUCO PANEL LIMITED

Date of Decision: 05th July, 2023

+ RFA(COMM) 131/2023

CORAM: HON’BLE MR. JUSTICE MANMOHAN

HON’BLE MS. JUSTICE MINI PUSHKARNA

Introduction

Delhi High Court Dismissed the appeal challenging the order of a district court due to lack of filing of written statement on time thus defence for lack of territorial jurisdiction could not be raised.

Facts of the case

Present appeal has been filed challenging the order dated 11th November, 2022 passed by the learned District Judge in CS No.1235/2018 whereby the suit was decreed in favour of the respondent-plaintiff.

Analysis and Decision of the case

This Court determines that the appellant-defendant did not file the written statement or raise any defences despite participating throughout the suit processes, having heard the learned appellant’s counsel and having read the paper book. Despite the fact that an application under ruling IX Rule 7 CPC and an application under Order VII Rule 11 CPC were both submitted on October 17, 2019, both on the grounds that the Court lacked geographical jurisdiction, the applications were both rejected by a detailed ruling dated October 13, 2022. It is established law that a written statement cannot be filed more than 120 days after it is due. (See: 2019 SCC 210, SCG Contract (India) Pvt. Ltd. vs. K.S. Chamankar Infrastructure Pvt. Ltd. As a result, the order dated 17th October, 2019 is in accordance with law.

Additionally, this Court believes that the defences of non-delivery of goods against bills nos. 10 and 30 and lack of jurisdiction in the current case are valid arguments. The Trial Court was unable to address the aforementioned defences since, in the current instance, the opportunity to provide a written statement had expired because it had not been submitted within the allotted time frame.

 Additionally, this Court also believes that the decision interpreting Section 12A of the Commercial Courts Act prospectively renders the statute effective as of August 20, 2022. The aforementioned judgement offers no support to the appellant because the lawsuit in the current instance was filed in 2018.

As a result, the current appeal is dismissed together with any pending petitions since it lacks merit.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written By – Shreyanshu Gupta

clcik to view the judgement

0

Delhi High Court dismissed the appeal filed against the judgement passed by the single judge bench upholding the candidature of respondents

Uncategorized , , , , , , , , ,

Title: MR KISHOR BANDEKAR AND ORS vs MR MAHESH CANDOLKAR AND ORS

Reserved on: 03rd July, 2023

Pronounced on: 06th July, 2023

+ LPA 504/2023 & CAV 312/2023, CM APPLs. 32400-32403/2023, 32711/2023

CORAM: HON’BLE THE CHIEF JUSTICE MR. SATISH CHANDRA SHARMA

HON’BLE MR. JUSTICE SANJEEV NARULA

Introduction

Delhi High Court dismissed the appeal filed against the judgement dated 02nd June, 2023 passed by the learned Single Judge in W.P.(C) 15097/2021, upholding the order dated 14th December, 2021 passed by Appellate Authority of All-India Chess Federation, New Delhi [“AICF”].

Facts of the Case

The Goa Chess Association [“GCA”] is a state-level sports organisation that is affiliated with both the AICF and the Sports Authority of Goa. It was established in accordance with the Societies Registration Act, 1860. The GCA’s Memorandum of Association (hence, “MoA”) and Rules and Regulations, all of which have been endorsed by the association’s General Body, serve as the framework for its governance.

A crucial adjustment to the GCA’s constitution was made by the General Body at its meeting on January 8th, 2017, raising the number of elected members of the Executive Committee from seven to twelve.

The GCA announced the elections for the Executive Committee on July 22, 2021. The list of accepted nomination forms was made public on August 5, 2021, and on August 10, 2021, the Presiding Officer (the “PO”) announced the names of the candidates elected to the North and South Goa Taluka Associations. The nomination forms of Respondents Nos. 1 through 4 were also ruled to be invalid, and a number of candidates from the talukas of Barder, Tiswadi, Ponda, and Salcete were found to have won their elections without opposition.

Respondents Nos. 1 to 4 contested the aforementioned PO disqualification of candidature before the AICF Ethics Commission in line with the AICF Code of Ethics. The Commission reversed PO’s decision through an order that was signed on October 19, 2021, and instructed that the voting procedure be completed within two weeks of the day that the order was received. The Appellants filed an appeal against this ruling with the AICF Appellate Authority, but it was denied on December 14 of that year, and the Ethics Commission’s judgement was upheld.

2.5. Invoking Article 226 of the Constitution of India, 1950, the appellants filed W.P.(C) 15097/2021 after being dissatisfied with the Appellate Authority’s ruling.

However, on June 2, 2023, the learned Single Judge dismissed the appeal and upheld Appellate Authority’s decision.

Analysis & Decision of the court

The Delhi high court held that The General Body meeting on January 8, 2017, when it was decided to expand the number of elected members of the GCA’s Executive Committee, is where the dispute’s origins may be found. This choice was made in order to permit additional committee members who might aid in the growth of chess in Goa and broaden the association’s operations. The MoA and GCA Rules and Regulations modifications were authorised by the resolution that came out of this meeting. Twelve elected members and one nominated member from each associated Taluka Chess Association will make up the Executive Committee of the GCA, according to the updated bye-laws and MoA.

 The challenged ruling exhibits a careful consideration of the provisions of the MoA and Rules and Regulations of GCA. The prerequisites for a candidate, the election process, the tenure of the Committee members, and the mechanism for filling any vacancies on the Executive Committee are all outlined in Rule 42(i)(a) (extracted above). Additionally, it describes the election process, including the criteria for nominations, the review of nominations, and the roles of the President, Secretary, and designated Presiding Officer. Contrary to what Mr. Nayyar has emphasised, this clause does not support his allegation. The aim to expand the number of delegates is mentioned in the minutes of the meeting, but it is not stated expressly that these representatives should be equally divided across all talukas. That would imply that it is possible for a taluka to have more than one representative on the Executive Committee.

This viewpoint is reinforced by the modified Clause 13 of the Memorandum of Agreement, which stipulates that one delegate from each associated taluka should be a member of the Executive Committee, however it leaves open the possibility of electing an unlimited number of office holders from each taluka. The number of office bearers who can be chosen from a particular taluka is not limited under Rule 42(i)(a) of the GCA’s Rules and Regulations. The language employed in Rule 42(ii)(a), which requires that candidates for the Executive Committee elections be delegates with voting rights of and sponsored by Taluka Associations, supports the learned Single Judge’s view. According to this regulation, eligibility is dependent on being a delegate and instead of the number of representatives per taluka, voting rights.

Rule 42(i)(a), which is instrumental in the formation of Executive Committee comprising of both elected and nominated representatives, does not impose any limitations as canvassed by the Appellants. There is no requirement to guarantee that each taluka is represented on the Executive Committee under Rule 42(i)(a). This interpretation conforms to the erudite Single Judge’s opinion, which we also agree with.

We see no justification for interfering with the challenged finding relating to the PO’s judgement since we do not think the Appellants’ objection to the interpretation of such regulations has any validity. Therefore, the learned Single Judge’s opinion is still unchallengeable with regard to this matter as well. In conclusion, the erudite Single Judge’s interpretation based on the explicit wording employed in the GCA’s Rules and Regulations as well as the General Body resolution, appears to be accurate. Instead than restricting the number of office bearers per taluka, it appears that the stated requirements’ main goal is to increase representation and guarantee that each taluka has at least one delegate on the Executive Committee.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written By – Shreyanshu Gupta

click here to view the judgement

0

Delhi High Court allowed the writ petition filed and dismissed the order passed by the Container Corporation of India Ltd.

Blog , , , , , , , , ,

Title: Loadstar Equipment Ltd. Vs Container Corporation of India Ltd.

Decision: 04.07.23

W.P.(C) 5040/2023 & CM APPL. 19721/2023

CORAM: HON’BLE THE CHIEF JUSTICE MR. SATISH CHANDRA SHARMA

 HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD

Introduction

Delhi High Court allowed the writ petition filed and dismissed the order passed by the Container Corporation of India Ltd, disqualifying the petitioner from participating in the bidding of tender bearing reference no. CON/AREA1/TECH/FORKLIFT-20/2023, which was floated by Respondent No. 1 on their website vide NIT dated 08.02.2023.

Facts of the Case

The Respondent No. 1 invited applications on the government portal for bids from Original Equipment Manufacturers (OEMs)/authorized dealers through a two packet online open tendering system, at an estimated total cost of Rs. 38,11,40,000/-, for the design, manufacture, supply, and commissioning of 20 forklifts with a capacity of 35 tonnes at a specified terminal. This is the background to the current petition.

Respondent No.1/CONCOR subsequently issued a corrigendum in respect of the part of the NIT document which lays down qualification criterion for bidders. Accordingly, Clause 2.1(b) under Section II “General Instructions to Bidders” was added to the NIT document.

Upon examination of the bid documents in the technical stage, Respondent No.1 issued communications to the bidding parties on 23.03.2023 and again on 24.03.2023, calling upon them to submit additional documents to rectify discrepancies found in the documents, latest by 29.03.2023. and The Petitioner submitted their reply to the aforesaid communication and submitted documents to the Respondent vide emails dated 28.03.2023 and 29.03.2023

On a perusal of the documents submitted by the Petitioner, the Tender Evaluation Committee of Respondent No.1 found the Petitioner to be technically not qualified and rejected the bid of the Petitioner vide impugned communication dated 18.04.2023. The Petitioner thereafter addressed an email to the CMD of Respondent No. 1, stating that no reasons had been assigned for their disqualification, and requested the intervention of CMD of Respondent No. 1 to permit the Petitioner to give further clarifications. However, there was no response to this communication.

Being aggrieved by the decision of the Respondent No.1 dated 18.04.2023, disqualifying the Petitioner from the tender process, the Petitioner has filed the instant petition on 19.04.2023, challenging the impugned communication.

Analysis and Decision of the court

In accordance with Clause 2.1, a qualified bidder must have submitted at least one purchase order for a comparable good to at least one government department, CPSC, SPSC, public limited company, etc. during the previous three years and on or before the last day of the financial year immediately preceding the one for which the bid is being submitted. Additionally, it states that a bidder and an authorised dealer cannot submit separate bids for the same product or item in the same tender.

According to Clause 2.1, the manufacturer or an authorised dealer must demonstrate that they have successfully delivered or completed one purchase order in order to be taken into consideration for the tender. According to the certificate provided by APL Apollo Steel Pipes, M/s Excellent Engineering & Allied Service Private Limited provided the device produced by the petitioner.

The justification offered by Respondent No. 1 was that M/s Excellent Engineering & Allied Service Private Limited was the beneficiary of the certificate issued by APL Apollo Steel Pipes. This justification is inadmissible since the proof demonstrates that M/s Excellent Engineering & Allied Service Private Limited worked with Apollo Steel Pipes to complete the machine the petitioner built.

It is undeniably well established that judicial review of administrative acts, including those involving tenders, is severely constrained. However, judicial review may be used to stop arbitrary, unreasonable, and illogical behaviour.

The fundamental requirement of Article 14 of the Indian Constitution is now well established and has been upheld numerous times by the Apex Court. Non-arbitrariness in substance and essence is the lifeblood of fair play, and State actions are subject to judicial review to the extent that the State must act lawfully for a discernible reason and not arbitrarily. The Court must intervene in order to exercise its authority under Article 226 of the Indian Constitution if the State or an instrumentality of the State fails to behave reasonably or fairly in the awarding of contracts. Vice Chairman & Managing Director, City and Industrial Development Corporation of Maharashtra Ltd. and Others v. Shishir Realty Private Limited and Others, 2021 SCC OnLine SC 1141 a case decided by the Supreme Court, where it was held that “Fairness and the good faith standard ingrained in the contracts entered into by public authorities mandates such public authorities to conduct themselves in a non-arbitrary manner during the performance of their contractual obligations” and “The constitutional guarantee against arbitrariness as provided under Article 14, demands the State to act in a fair and reasonable manner unless public interest demands otherwise. However, the degree of compromise of any private legitimate interest must correspond proportionately to the public interest, so claimed”

Arbitrariness is the antithesis of Article 14 of the Indian Constitution, and the State must operate in a fair and reasonable manner, as has been well-established and stated by the Apex Court. As previously stated, the bidder who is a manufacturer only needed to demonstrate that it has experience supplying at least one single purchase order of government departments, CPSEs, SPSEs, Public Listed Companies, ICD, DCT, MMLP, Ports, CFS, CTOs for similar item during the previous three financial years and current financial year last day of month prior to the one in which tender is invited.

A thorough study of Clauses 2.1, 5.4, and Annexures 10 and 11 of the NIT reveals that the maker must merely demonstrate that it has provided a machine that has been installed satisfactorily. In a similar vein, Annexure-14 stipulates that the maker must also provide the certificate.

Since the Petitioner has demonstrated that it satisfies the qualifying requirements, their bid shouldn’t have been turned down.

The Respondent No. 1 was instructed to open the Petitioner’s financial bid during the hearing, and it turned out that the Petitioner was the lowest bidder.

 Given the foregoing, the writ petition and any pending applications, if any, are approved. It is mandated that the Respondents go forward in line with the law.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written By – Shreyanshu Gupta

Click to view the judgement

0

Delhi High Court dismissed the Regular First appeal filed, seeking partition of the property.

Blog , , , , , , , , ,

Title: Smt. Sarita Dua vs Dr. Gautam Dev Sood & Ors.

Reserved on: 14.03.23

Pronounced on: 04.07.23

+ RFA(OS) 27/2022

CORAM: HON’BLE MR. JUSTICE SURESH KUMAR KAIT

                 HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

Introduction

Delhi high court held that the petition for partition is not maintainable if the cancellation of existing Gift deed is not sought.

Facts of the case

The three plaintiffs, who were sisters, filed a lawsuit against the defendant seeking to divide the property bearing N-32, Greater Kailash, New Delhi (hence referred to as the suit property).

In order to profit himself, the late Dr. Vyas Dev Sood, the parties’ father, acquired the suit property on April 27, 1965, using his own money. He did this in the name of his wife, the late Smt. Raj Kumari Sood, and a two-story home was subsequently built there. He passed away on January 31, 2001, while the parties’ mother, Smt. Raj Kumari Sood, passed away in October 2004. They both passed away intestate, leaving behind two sons and three daughters: Dr. Devashish Kumar Sood, who is being represented by his legal heirs, and the three daughters who are the plaintiffs. The parties’ disagreements led to the filing of the lawsuit for partition and rendition of accounts.

Analysis and decision of the court

The court analysed and stated that the parties have agreed that the suit property was acquired in 1965 under the mother of the plaintiff through a recorded Sale Deed. The appellant/plaintiff asserts that the plaintiff’s father paid all of the money necessary for the acquisition of the suit property out of his own pocket. Therefore, in contrast to the father who was a de jure owner, the mother was just a de facto owner of the property. now the property was benami, the de jure ownership remained with the father until his passing. Thereafter, according to the law of succession, it passed to all of the legal heirs, who have now requested the property’s division. It also held that the basic argument behind the plea of benami transaction is that the father purchased the property out off his own funds and registered it in name of the mother, While the law creates a prohibition against the right to recover property held benami, the law has culled out certain exceptions to benami transactions under Section 3(2) of the Benami Act. the mother’s name was used in the recorded Sale Deed dated 27.04.1965 to acquire the subject property. Both the mother and father have passed away, and the father never asserted ownership of the land throughout his lifetime. The appellants have now contested the Sale Deed as being in violation of the Benami Transaction Act, approximately 50 years after the Sale Deed was executed. A claim of father-owned property that is so nebulous and unsupported by any information, including any explanation of the finances that can be traced to the father, has been rightfully dismissed as unsubstantiated. Section 3(2) of the Act, no doubt creates a presumption if the property is purchased in the name of wife or daughter, but this presumption would have arisen only if there was any basis to establish that father had purchased property benami in the name of his wife. Section 4 of the Act places a complete embargo on claiming any right if the transaction is per se benami i.e. the property is purchased in the name of one while the funds are paid by another. Section 4(2) of the Benami Act prohibits any suit on the basis of such transaction; no person can assert to be the real owner of such property held benami. The Apex Court in the case of R. Rajagopal Reddy (dead) by LRs and Ors vs Radmini Chandrasekaran (dead) by LRs (1995) 2 SCC 630 clarified the retrospective application of Section 4 and observed that Section 4 shall be applicable from the date it came into effect and no claim, suit or action preferred by the real owner, to enforce any right in respect of the property held benami, would lie/be admissible in any court. A Division Bench of this Court in the case of Sanjay Roy Vs. Sandeep Soni, (Supra) followed the judgement of Ramti Devi (Supra) and observed that Section 27 of the Limitation Act, 1963 extinguishes the right in property on expiry of the period of limitation.

The appellants have cited as Manoj Arora v. Mamta Arora (Supra), in which the husband claimed to be the de jure owner of the two and launched a lawsuit against the wife seeking a declaration and an injunction homes that he had bought in the defendant, his wife’s name.

He had provided information on the source of the funds and the sums that he had used to pay for those properties. The Coordinate Bench of this Court noted that the action could not have been dismissed in accordance with Order VII Rule 11 of the CPC where there are explicit allegations in the plaint that the husband acquired the property in the name of his wife.

However, in this instance, neither the mother nor the father ever said that the father had bought the property benami (in the name of) the mother’s. In fact, the parties to the lawsuit did not claim the property was benami in the mother’s name while their parents were alive. Furthermore, neither in this lawsuit nor the prior civil litigation with case number CS (OS) 1912/2009 has any statement been requested in relation to the Sale Deed that was completed on April 27, 1965, in the mother’s name. Additionally, the plaintiffs have not revealed the origin of the cash.

The appellant in Ramti Devi v. Union of India (previous) understood that the Sale Deed had been executed and registered on January 29, 1947. When the appellant gained information that the instrument was being completed, the three-year limitation period outlined in Article 59 of the Schedule to the Limitation Act, 1963, started to run. The 1966 lawsuit was rejected by the Apex Court as being time-barred since the 1959 lawsuit had been withdrawn and replaced by the 1966 lawsuit. This case is similar to the present petition where defendants had countered the claim of appellants for partition with asserting a right in their favour on the basis of two registered Gift Deeds dated 13.03.2000 and 11.03.2002, executed in their favour by the mother. The defendants in the prior litigation had argued for their exclusive claim to the suit property on the basis of the two Git Deeds, according to the appellant’s averments in paragraph 17, which are obviously evident. Therefore, the plaintiffs had knowledge of the two Gift Deeds from at least 2009. The cause of action to dispute the aforementioned Gift Deeds emerged in 2009 when the appellants became aware of the Gift Deeds, and according to Article 59 of the Limitation Act, 1963, the cause of action may only be contested three years after the date of knowledge. Therefore, we concur with the learned Single Judge’s conclusions that the case was barred by limitation.

The defendants, respondents, claimed that the current lawsuit for partition and rendition of accounts could not be maintained without first requesting the cancellation of the two gift deeds as their second defence. In the case of Prem Singh and Ors vs Birbal and Ors. (2006) 5 SCC 353 The Supreme Court established the need for setting aside a registered document and observed thus: “27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption.” The Coordinate Bench of this Court had stated in Anita Anand v. Gargi Kapur, (Supra), that the plaintiff would not be eligible for partition until he challenged the Gift Deed. The determination of the Gift Deed’s illegality would result in relief from division. Similar to this, the Supreme Court ruled in Ramti Devi v. Union of India (Supra) that a document that has been duly completed and registered stays valid and binds the parties unless it is properly revoked by the Court.

Thus, it has been held that the petition for partition is not maintainable if the cancellation of existing Gift deed is not sought.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written By – Shreyanshu Gupta

Click to view the judgement

0

Delhi High court Dismissed the petition filed by TV 18 Broadcast, seeking Interim injunction.

Blog , , , , , , , , ,

Title: TV 18 BROADCAST LTD. Vs BENNETT, COLEMAN AND COMPANY LIMITED

Judgement Delivered: 04.07.23

+ CS(COMM) 279/2022

CORAM: HON’BLE MR. JUSTICE AMIT BANSAL

Introduction

Delhi High Court dismissed the petition filed by TV 18 Broadcast, seeking interim injunction on the use of term “Bhaiyaji” under class 41.

Facts of the case

The plaintiff is a member of the largest media and entertainment conglomerate in India, the Network18 group. The plaintiff’s business operations include managing a number of television networks in India, including CNBC-TV18, CNN News18, and News18, which broadcast in fifteen different languages and 26 states across the nation. Additionally, the company operates entertainment and informational media channels as Colours, Nickelodeon, MTV, and History TV18. In addition of creating TV shows, the plaintiff is also involved in creating TV programme and one such program is named as “Bhaiyaji Kahin” and they adopted the device mark for the same with effect from 29th December 2016 under classes 38 and 41, Since then the show aired 1200 episodes and generated a revenue of Rs.16,26,42,000 alone in the year 2021-22.

The defendants used the trademark to launch “Bhaiya Ji Superhit” in January 2022, which was intended to use comedy and satire to highlight newsworthy topics. Due to the resemblance of the two parties’ trademarks and the nature of their respective shows, the plaintiff sent the defendant with a cease-and-desist letter dated January 10, 2022, ordering them to stop using the contested mark “Bhaiya Ji Superhit” among other things.

However, the defendant asked the plaintiff to drop the stop and desist letter, pointing out that there was no similarity between the defendant’s programme format and the plaintiff’s, nor was there any chance that the impugned mark and the plaintiff’s trademark would be confused.

Reiterating the arguments made in its initial cease and desist letter, the plaintiff once more sent the defendant a legal notice on February 24, 2022. The accusations mentioned in the notifications, however, were disputed by the defendant.

In order to prevent the defendant from violating the plaintiff’s trademarks, passing off, and other ancillary reliefs, the plaintiff brought the current lawsuit.

Analysis and Decision of the Court

The High Court held that, the “Bhaiyaji Kahin” mark used by the plaintiff is registered under classes 38 and 41. In contrast to the registration under class 38, the registration under class 41 contains a disclaimer about the term “Bhaiyaji”. There is no question in my opinion after reading the aforementioned classification that television shows, particularly those relating to news, belong in class 41 and not class 38. In reality, there is a blatant exclusion for television broadcasts in class 38. Telecommunication services, such as television transmission, are also included in class 38.

Therefore, names of television stations like Times Now, CNN News18, News18, and similar ones will be included in class 38. The subject of class 41 would be the titles of the shows that are shown on these networks. Therefore, class 41 would be the applicable class for finding infringement.

The name “Bhaiyaji” is the only commonality between the plaintiff’s and defendant’s marks. The terms “Kahin” used by the plaintiff and “Superhit” used by the defendant are not interchangeable. The plaintiff cannot prevent the defendant from using the term “Bhaiyaji” due to the disclaimer about the term under class 41. This is also made explicit by Section 28(2) of the Trade Marks Act, which states that all restrictions and conditions that are a part of the registration granted apply to the exclusive right to use a trademark.

In spite of this, the term “Bhaiyaji” is a well-known pronoun in several Indian states, such as Uttar Pradesh and Bihar, and it literally means “brother”; as a result, it lacks distinction. The defendant has also provided enough evidence to the court to demonstrate that the term “Bhaiyaji” is commonly used in trade in India and is used in a number of radio and television broadcasts. Thus, in my initial assessment, “Bhaiyaji” is a generic phrase that is in common usage, and nobody has the exclusive right to use such generic words. According to Section 17 of the Trade Marks Act, 1999, the plaintiff is not entitled to exclusive rights over the mark “Bhaiyaji” in light of the aforementioned.

Attention has also been brought to the Plaintiff’s response to the examination report of the registry where they had applied for registration of the mark “Bhaiyaji Kahin” under class 41, while distinguishing it from “Bhaiya Aisa Kyun”, the Plaintiff has clearly taken a stand that their mark is not similar to the said mark and it is to be compared as a whole and cannot be dissected thus they cannot take contrary view on using of term “Bhaiyaji” by the defendant, it is not permissible to approbate and reprobate.

Plaintiff has placed reliance on Shree Nath Heritage Liquor Pvt. Ltd. v. M/s. Allied Blender & Distillers Pvt. Ltd., 2015 OnLine Del 10164,  wherein the court upheld the interim order of the division bench in respect of the defendant using the mark “Collector’s Choice” as against the plaintiff’s registered mark of “Officer’s Choice” in respect of alcoholic beverages, but this reliance is flawed as the dominant word was officer and their was no disclaimer but in the present case the dominant word is “Bhaiyaji” and there is a disclaimer present thus the aforesaid judgement does not advance the case of the plaintiff. Aditya Birla Fashion & Retail Ltd. v. Under Armour, Inc., 2023 SCC OnLine Del 2269, there was no disclaimer included in the registration issued in favour of the plaintiff as there is in the current case. as a result, the abovementioned judgement does not strengthen the plaintiff’s case.

Also, regarding the format of the show, the shows are quite different from each other both in terms of nature as well as the format. Therefore, in my prima facie view there is no likelihood of confusion between the two television shows. In view of the discussion above, the plaintiff has failed to make out a prima facie case for grant of interim injunction. Accordingly, the application is dismissed.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written By – Shreyanshu Gupta

Click to review the judgement

1 … 5 6 7 8 9