# JUSTICE P.T. ASHA. Archives

18 Jul

The court has jurisdiction in letters patent since the suit is filed in the original side of the Court: Madras High Court.

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TITLE: ITC Limited Vs. Britannia Industries Ltd.

Decided On: July 14, 2023.

A.No.3314 of 2023 in C.S.(Comm Div).No.153 of 2023.

CORAM: Hon’ble Ms. Justice P.T. Asha.

Introduction:

The plaintiff has approached this Court with a case that the defendant who was all along wrapping a particular brand of biscuits in a different colour and get up, has now imitated the trade dress of the plaintiff’s brand of biscuits.

Facts:

The plaintiff who has approached this Court contemplating the grant of an urgent interim relief has been checkmated by the defendant, a giant in the consumer market; on a supposed plea that the suit filed requires to be rejected. The Court could apply its mind to the urgency in the application or the need for interim relief, the defendant had sought two adjournments for filing its counter and has then come forward with the application. If the defendant were keen on a settlement, they could have, on the very first hearing, expressed their desire to have the matter sent to the State Legal Services Authority for mediating the dispute. Infact, nowhere in the application has the defendant expressed their desire for settlement. On the contrary, the attempt is to try to have the plaintiff’s case dismissed at the threshold.

Legal Analysis and Decision:

The Defendant ITC Limited, appears to be engaged in marketing of the Impugned Product. The Defendant No. 1 has its office at Virginia House, 37 Jawaharlal Nehru Road Kolkata, West Bengal – 700071 and its office at Number 69, Muthuramalinga Thevar Rd, Austin Nagar, Nandanam, Chennai, Tamil Nadu. The impugned products of the Defendant are available for sale in Chennai, within the jurisdiction of this Hon’ble Court. Copies of the invoice indicating the sale of the infringing products are filed herewith in the present proceedings. The impugned products of the Defendant are also advertised on YouTube, extracts of which are filed herewith in the present proceedings. This Hon’ble Court has the necessary territorial jurisdiction to entertain and try the present action by virtue of Section 134(2) of the Trademarks Act, 1999 and Section 62(2) of the Copyright Act, as the suit is inter alia for infringement of registered trademark, trade dress and Copyright of the Plaintiff, being the registered proprietor of the trademark and as well as its copyright on the artistic work; the plaintiff’s is carrying on business within the jurisdiction of this Hon’ble Court. The Defendant is situated in Chennai and the infringing products are available for sale within the jurisdiction of this Hon’ble Court.

The argument of the defendant that since the suit is not filed under Clause 12 of the Letters Patent, this Court has no jurisdiction has to be repelled on the ground that the original side rules of this Court has been formulated only on the basis of the Letters Patent which has conferred jurisdiction on this High Court. Clause 11 confers the local limits of the ordinary original jurisdiction of the High Court and Clause 12 confers the Court with original jurisdiction as to the suits. The suit is filed under Order IV Rule 1 of the Original Side Rules which emanates from the Letters Pattent.

The below are the grounds on which the suit is challenged.

Failure to comply the pre-mediation settlement contemplated under Section 12 A of the Act.
Suit not instituted by a competent person.
Lack of Jurisdiction.

It is crystal clear that the defendant’s are carrying on business within the jurisdiction of this Court. This coupled with the averments contained in the paragraphs of the plaint extracted supra clearly brings out the plaintiff has pleaded that the defendant is carrying on business within the Jurisdiction of this Court. Therefore, taking note of the fact that the suit is one filed in the original side of this Chartered High Court, which has been conferred with the power under Letters Patent, the argument of the defendant that the suit is not maintainable as it has not been filed invoking the provisions of Clause 12 is not maintainable and has to necessarily be rejected.

Conclusion:

Since the plaintiff has pleaded that the defendant is carrying on business within the Jurisdiction of the court. Therefore, taking note of the fact that the suit is one filed in the original side of this Chartered High Court, which has been conferred with the power under Letters Patent, So the argument of the defendant that the suit is not maintainable as it has not been filed invoking the provisions of Clause 12 is not maintainable and it is rejected.

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JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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10 Jul

₹14 lakh compensation to the minor victim girl orders Madras High Court; criticises Legal Service Authority for seeking dismissal of case.

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Title: T. Kaliammal

Versus

The State of Tamil nadu and Ors.

Date of Decision: 26.06.2023.

Coram: THE HONOURABLE MS. JUSTICE P.T. ASHA.

Citation: W.P.(MD) No.3252 of 2020 and W.M.P.(MD) No.2758 of 2020.

Even though a special court had ended all proceedings in the case when the accused passed away while the trial was still ongoing, the Madras High Court recently awarded compensation of 14 lakh to a minor, mentally challenged rape survivor. Justice PT Asha noted that the local special court had done the physically and mentally handicapped survivor and her family more disservice by dismissing the case.

Introduction:

The petitioner, who is the mother of a mentally challenged daughter, who has been ravaged and impregnated by a “wolf in sheep’s clothing”, old enough to be her father, has knocked at the doors of this Court seeking compensation for this wrong inflicted on her daughter. The family comes from indigent circumstances. The mother is an agricultural coolie and the father works as a Watchman in a private company. They are blessed with two children, a son aged about 18 years, who is undergoing his B.Com course at Mano Arts College in Thoothukudi District and a daughter, who is the victim. The victim is mentally as well as physically challenged. Since the husband is employed at Chennai, the mother and children are living alone. Being an agricultural coolie, the petitioner is forced to leave the daughter alone W.P.(MD) No.3252 of 2020 and go for her work. The accused, who is about 55 years of age and a neighbour, had taken advantage of the victim’s physical and mental disability and has committed aggravated penetrative sexual assault on her not once, but on several occasions. The condition of the victim is such that she was not even in a position to narrate the ordeal to her mother. It was only when she had become pregnant, that the mother came to know about the same and immediately, a complaint was lodged at All Women Police Station, Kadambur, Tuticorin, and an FIR too was registered under the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”). The petitioner has moved this Court for a mandamus to terminate the pregnancy, provide police protection to the petitioner and her family members and to provide reasonable fair and compensation to the victim.

Legal Analysis:

The judge stated that despite the prohibition under Section 362 of the Code of Criminal Procedure (CrPC), the High Court has the authority to right this injustice. “This closure is yet another move that has done the victim significant injustice and, in some ways, demonstrates the indifference shown to the victim’s plight. The bar under Section 362 of the Code of Criminal Procedure would go into effect once the case was closed, making it impossible for the victim to seek additional compensation from the Court. Therefore, the petitioner contacted this Court appropriately. The Court stated that it had the authority to right this mistake. The Thootkudi District Legal Services Authority (DLSA) was also criticised by the court for how it handled its efforts to have the lawsuit dismissed.

The mother of a the victim girl who was discovered to have been regularly raped and impregnated by their 55-year-old neighbour had petitioned the court for just compensation. The case was already concluded by the special court since the defendant passed away while the trial was ongoing. The victim’s pregnancy was ended per the High Court’s directives, and she was given an interim settlement of Rs. 1 lakh. The District Legal Services Authority indicated in a counter-affidavit that the High Court’s request for compensation might be dismissed because the special court had concluded the case. The authority was criticised by the High Court for its callous and insensitive behaviour. “The fifth respondent has washed its hands of the issue and prays that the writ petition be dismissed instead of helping the Court attempt to rehabilitate and recompense the victim, who is a mentally and physically handicapped girl. It’s best to say as little as possible about the counter, said Justice Asha. The Court further determined that the victim was qualified to receive the maximum amount of compensation that may be paid under the various compensation plans. The Protection of Children from Sexual Offences Act (POCSO Act) established the Tamil Nadu Child Victim Compensation Fund, and the court ordered the Thootkudi District Legal Services Authority (DLSA) to pay the victim’s compensation amount from that fund.

Judgement:

This Hon’ble Court by exercising jurisdiction under Article 226 of the Constitution of India directs that a compensation of a sum of Rs.14,00,000/- (Rupees Fourteen Lakhs only) be paid to the victim. This sum shall be deposited in an interest-bearing account with the mother as the guardian. The mother shall be permitted to withdraw interest every month. The said sum shall be utilised only for the up keep and the rehabilitation of the victim. The District Child Protection Officer shall visit the home of the Victim once in three months and submit a report to the District Legal Services Authority, Thoothukudi. The District Legal Services Authority shall ensure compliance of the above. In case, the report would state that the amounts are not being used for the welfare of the victim, then an application shall be made to this Court for modifying the orders by the District Child Protection Officer. In case, the mother requires substantial amount for the benefit of the victim, she can make an application to this Court for appropriate order. The amount of Rs. 14,00,000/- shall be paid from and out of the Tamil Nadu Child Victim Compensation Fund by the fifth respondent within a period of four weeks from the date of receipt of a copy of this order and report compliance to this Court.

Conclusion:

This is a tragic case in which the accused aggravated penetrative sexual assault against the victim, a minor with mental disabilities, not just once, but multiple times. Unfortunately, he had already passed away before he could get any legal penalty. The Special Court closed the matter as charge abated without complying with Section 33(8) of the POCSO Act and Rules 7(1) and 7(2), The judge also directed the DLSA to ensure that the money was used only for the victim’s rehabilitation.

JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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6 Jul

Madras High Court Directs Authorities To Exempt Vehicle Tax, GST For Car Purchased By Visually Challenged Person.

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Case Title: Carunia Seelavathi … Petitioner
Versus

Department of Transport State of Tamil Nadu. … Respondents

Date of Decision: Pronounced On 26.06.2023.

Coram: THE HONOURABLE MR.JUSTICE P.T. ASHA.

Citation: W.P.(MD) Nos.12955 and 13043 of 2023cand W.M.P.(MD) No.11040 of 2023 W.P.(MD) No.12955 of 2023.

Introduction:

Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, to call for the records relating to the impugned email communication dated 04.05.2023 vide his proceedings in registration application MHI- 290423185541-6629 sent by the 4th respondent and quash the same as illegal and consequently for a direction, directing the respondent No.1 to extent the GST, Road Tax, Tool Tax and registration concession to the petitioner for purchasing a four wheeler (TATA NEXON XECar (Petrol) Derik Motors Private Limited ) in the light of the orders passed by the Honble Court of Chief Commissioner for persons with Disabilities (Divyangjan) in Case No.12149/1141/2020 dated 01.12.2020. The relief is sought for on the basis of the order passed by the Court of Chief Commissioner for Persons with Disabilities (Divyangjan) New Delhi in Case No.12149/1141/2020 dated 01.12.2020 and the order passed by this Court in W.P.(MD) No.20511 of 2021 dated 22.12.2021.

Facts:

The petitioner, who is visually handicapped and who holds the unique disability identity card showing that she is a person with 100% physical impairment, has planned to purchase a car for her own use. She is dependent on a third person for her travels. Considering the fact that she is a lady and visually challenged, travelling in the taxies and autos in the present scenario is a scary choice for the petitioner. Therefore, she would try to take advantage of the Government Order in G.O.Ms.No.3352, Home (Transport-T) Department, dated 29.12.1976, which grants exemptions from payment of tax leviable under the Tamil Nadu Motor Vehicles Taxation Act, 1974 for the motor vehicles designed or adapted for the use of disabled persons. She has also relied upon the aforementioned case of the Court of Chief Commissioner for Persons with Disabilities (Divyangjan) as also the order of this Court in W.P.(MD) No.20511 of 2021 dated 22.12.2021. However, her request has been rejected by the authorities by stating that the vehicle of the petitioner would not undergo any change in its form and it cannot be considered as a adapted vehicle, which is the basis of the exemption. Like wise, the request for exemption of GST has been rejected with the one line order that the scheme is only for ortho/locomotory applicants.

Issue:

Whether the petitioner is suffering from any disability?

Legal Analysis:

The petitioner is a person suffering from a disability has not been denied by the respondents. In the order of the Court of the Chief Commissioner for Persons with Disabilities (Divyangjan) New Delhi, the Commissioner was dealing with cases of various kinds of disabilities, like locomotory, hearing impairment, visually handicapped etc. The Commission has held that a personsuffering from complete blindness can never drive the vehicle by himself/herself, which is also the case of hearing impairment. The Commission went on to hold that the person who is visually challenged also belongs to the PwD category (Person with Disability) and the Commission had recommended that the Department of Heavy Industries, Ministry of Heavy Industries and Public Enterprises and Department of Revenue, Ministry of Finance, Union of India should make amendments to their rules to give concession with reference to GST, Road Tax, Toll Tax etc to all these persons. This recommendation of the Commission has been followed by the learned Judge of this Court in the order passed in W.P.(MD) No.20511 of 2021, wherein the learned Judge has relied upon this recommendation and directed the respondents to process the applications at the earliest. This Court on an earlier occasion was dealing with the cases of exemption in respect of the adapted vehicle adapted for the use of a physically challenged person. Relying upon Sections 2(1) and 52(1) of the Act, this Court had directed that the petitioner is entitled to the concession.

Judgement:

Considering the recommendation of the Commission, which is a Commission specifically established for the disabled and taking into consideration the fact that today the visually challenged persons are having more opportunities of employment even in the Government sector and their commuting to the place of work becomes challenging, this Court is of the opinion that the exemption has to be granted to the petitioner and accordingly, the Writ Petitions are allowed. The authority concerned shall ensure that necessary orders exempting the petitioner from the motor vehicle’s tax as well as the GST are passed within a period of four weeks from the date of receipt of a undertaking letter by the petitioner. However, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.

Conclusion:

Justice PT Asha of the Madurai bench took note of the recommendations made by the Chief Commissioner for Persons with Disabilities to Department of Heavy Industries, Ministry of Heavy Industries and Public Enterprises and Department of Revenue, Ministry of Finance for amendments to their rules to give concession with reference to GST, Road Tax, Toll Tax etc to the visually challenged persons.

JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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