#Legal Report Archives - Page 5 of 6

24 Nov

Arbitrator to be appointed if the parties to the agreement do not follow their duties : Patna HC

Uncategorized #Judiciary, #law, #Legal Provisions, #Legal Report

Title: Delco Infrastructures Projects Limited v The Bihar State Education Infrastructure Development Corporation Limited and Ors

Citation: Request Case No.67 of 2023

Coram: Chief Justice K Vinod Chandran

Decided On: 07-10-2023

Introduction:

The application has been made seeking the appointment of an Arbitrator invoking the powers of the court under Section 11(6) of the Arbitration and Conciliation Act, 1996.

Facts:

Petitioner and the respondent entered into an agreement dated 05.02.2014 The said agreement contains an arbitration Clause-25. The petitioner invoked the said arbitration clause vide communication dated 01.05.2023 and also reply dated 03.06.2023 to the show cause notice dated 26.05.2023 but was to no avail. It is claimed that the respondents have not settled the dispute and the dispute is of civil in nature.

Court’s Analysis and Judgement:

The court found that the there is no dispute in the legality, validity and binding effect of the written agreement entered into between the parties, he existence of arbitration clause contained therein, the existence of dispute(s) arising there from, the dispute arising out of the agreement being civil in nature, no legal impediment in the adjudication of the dispute by the learned Arbitrator, Petitioner having exhausted the channel available for resolution of the dispute, the respondent having failed to appoint an Arbitrator pursuant to the invocation of the arbitration clause by the petitioner. After consideration of the aforementioned factors, the court appointed an Arbitrator to solve the dispute.

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Written by- Sushant Kumar Sharma

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22 Nov

Petitioner’s Candidature Was Not Rejected At Its Inception And Despite Her Failure To Produce The Certificate Is Sufficient Compliance Of Guidelines: High Court Of Patna

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Citation: L.P.A No.1414 of 2018

Coram: Honourable Chief Justice And Honourable Mr. Justice Rajiv Roy

Decided On: 03-10-2023

Introduction:

The present appeal is filed against an order in a review, which rejected the same finding the scope of review to be very limited and the invocation of such review jurisdiction possible only on the ground of an error apparent/evident from the face of the record.

Facts:

On 02.04.2018, a writ petition was filed by the petitioner against the rejection of her candidature to the post to Lady Supervisor, which was dismissed. The rejection of her candidature was on account of her not having produced the Non-Creamy Layer Certificate, which she was obliged to produce along with application.

The learned Single Judge found that though it was not produced along with application, she was called for counselling on 14.05.2012, on which date also she had not produced it. The petitioner’s reliance on the guidelines, which speak of an opportunity to submit the required certificate, having not been granted to her was also rejected on the ground that the advertisement clearly spelt out the requirement to produce the certificates along with application.

The advertisement was made for appointment on contractual basis to the post of Lady Supervisor (Mahila Parveyashika) in Katihar district. Even according to the petitioner, the advertisement required that the application should contain the self-attested photograph, the Extremely Backward Class certificate along with the certificate of not coming under creamy layer. Admittedly, the petitioner did not produce the certificate along with the application. In the writ petition also the petitioner had a contention that if her application was defective, she should have been informed.

Court’s Analysis and Judgement:

Petitioner’s candidature was not rejected at its inception and despite her failure to produce the certificate, she was called for the counselling. This was sufficient compliance of the guidelines. The advertisement clearly required the applicants to produce the certificates and the self-attested photograph long with the application itself. If any of the enclosures required are not produced, the application could be rejected in limine, which was not done.

It also have to be noticed that the certificate was issued only on 14.05.2012, on which date the counselling was also carried out. Hence, the petitioner’s contention that the certificate was produced at the time of counselling also cannot be believed. Hence the appeal was dismissed by the court.

Written by- Sushant Kumar Sharma

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22 Nov

Nothing Left To Be Decided As The Subject Matter Advertisement Was 8 Years Old: Patna High Court

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Uncategorized #Jobs, #law, #Legal Report, #Patna HC

Title: Dr. Veena Kumari v The Bihar Agricultural University

Citation: CWJC No.12028 of 2014

Coram: Honourable Mr. Justice Partha Sarthy

Decided On: 04-10-2023

Introduction:

The instant application was filed for quashing the Letter no. 1041 dated 4.7.2014 whereby the letter issued to the petitioner by the University calling the petitioner for interview to the post of Assistant Professor-cum-Junior Scientist for discipline Agriculture Economics vide Advertisement no.06/2013 dated 4.9.2013 was illegally recalled.

Facts:

It is submitted that the call letter for the interview had been held on 15.07.2014 for the post of Agriculture Economics was wrongly due to typographical/technical error. It is mentioned here that the petitioner namely Dr. Veena Kumari earlier moved this Hon’ble Court vide CWJC No. 1415 of 2008 for the same issue, the Hon’ble Court has passed order and rejected the grievance of the petitioner on 04.08.2011 for consideration of her candidature on the basis of her M.Sc. degree without having corresponding degree at the under graduate level on the ground that so long as the eligibility condition prescribed under Para-17.2 of RAU Act & Statute.

Court’s Analysis and Judgement:

the interview which is the subject matter of the instant application having taken place more than 8 years ago. So in present case there is nothing remaining to be decided on, hence the writ application was disposed by the court.

Written by- Sushant Kumar Sharma

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20 Nov

Petition Dismissed On The Ground Of Delay On Account Of Covid 19 Allowed To Be Heard On Merits: High Court Of Patna

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Citation: CWJC No.11704

Coram: Honourable Mr. Justice Mohit Kumar Shah

Decided On: 03-11-2023

Introduction:

The present writ petition has been filed for quashing the order dated 03.03.2021,whereby and whereunder the appeal filed by the petitioner has been rejected by the Deputy Chief Labour Commissioner (Central), Patna i.e. the appellate authority.

Facts:

The appeal of the petitioner has been dismissed on the ground of delay, being time barred, although the petitioner had filed a petition under Section 5 of the Limitation Act, 1963 along with the memo of appeal, for condonation of delay on the grounds stated therein as also on the ground that due to the prevailing circumstances on account of Covid-19 pandemic, the Hon’ble Apex Court had extended the period of limitation.

The learned counsel appearing for the respondent, Sri Jai Prakash Singh, in view of the facts and circumstances of the case, is also of the view that the appeal filed by the petitioner should be heard on merits, hence it is submitted that the matter be remanded back to the appellate authority.

Court’s Analysis and Decision:

Having regard to the facts and circumstances of the case and with the express agreement of the parties, Court deemed it fit and proper to allow the present writ petition and quash the order dated 03.03.2021, passed by the Deputy Chief Labour Commissioner (Central), Patna and remand the matter back to the appellate authority, for consideration on merits. The writ petition was then allowed by the Court.

Written by- Sushant Kumar Sharma

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15 Nov

Using The Colour Combination Of A Well Known Brand With A Mollified Intent Will Amount To Trade Mark: High Court of Madras

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Title: ITC Limited Virginia House v Britannia Industries Ltd.

Citation: O.S.A.(CAD).Nos.134 to 138 of 2023

Coram: The Hon’ble Mr.Sanjay V.Gangapurwala, Chief Justice And The Hon’ble Mr.Justice D.Bharatha Chakravarthy

Decided On: 08.11.2023

Introduction:

In the above applications, the respondent herein has prayed for interim injunction restraining the appellant herein from (i) indulging in unfair competition; (ii) infringement of their registered trademarks, (iii) passing off their goods as that of the plaintiff; (iv) infringement of copyright in the original artistic work in the wrapper; and (v) from diluting the goodwill and reputation of the plaintiff’s trade dress and colour scheme. In this judgment the parties are referred to as per their array in the suit.

Facts:

The plaintiff, Britannia Industries Limited, filed the above suit pleading that it was established in the year 1892, from which date, it has been manufacturing biscuits in India. It’s name itself has gained high reputation and goodwill and it has several products in the market which are very well known among the consuming public. While so, it has also adopted the mark ‘GOOD DAY‘ in the year 1986 and by virtue of continuous extensive use, advertisement and maintenance of high quality, GOOD DAY biscuits is a well known trademark throughout the country. Under the said umbrella mark, they are making and selling Butter Cookies, Cashew Cookies, Nut Cookies, Pista Badam Cookies, Choco Chunkies etc.

As far as the Butter Cookies are concerned, the petitioner uses the trade dress / wrapper in blue colour with the brand name ‘GOOD DAY‘ and the other devices contained therein. The plaintiff’s mark has been registered in different combinations vide Application Nos.4182344, 5186937, 5186938, 5186939, 5186940 in respect of Clause – 30. The plaintiff’s mark, along with colour scheme, getup and style, has been recognised as well known mark by the Intellectual Appellate Board and also by the Delhi High Court in the connected litigations.

The defendant is selling their similar products under their brand name ‘SUNFEAST‘ by adopting the trademark Mom’s Magic. Whileso, with a dishonest intention to cash in on the goodwill and reputation of the plaintiff and to pass off its products as that of the plaintiff, suddenly, in the month of March, 2023, started selling their products also in an identical blue colour trade dress / wrapper. If the products are placed side by side, it would be difficult to differentiate even with a careful observation. It is the case of the defendant that it is one of the India’s leading private sector Companies having formidable presence in diversified fields. Its branded packaged food business is one of the fastest growing food businesses in India and it has several leading brands including that of ‘SUNFEAST ‘.

It has adopted the visual elements and packaging in tune with its consumer preferences over a period of time and such modifications were made lastly in the year 2020. The defendant, with the same visual elements, has been selling the product in red based wrapper from the year 2020. Without altering the lay out or getup and packaging and not modifying the trade dress in any manner whatsoever, the defendant merely and simply changed the packaging colour of Sunfeast Mom’s Magic Butter Cookies to blue in line with the packaging colours of its Butter Cookies.

Judge’s Analysis and Judgment:

The learned Single Judge considered the case of the parties and found that the plaintiff has been using the trade dress with elements and colour combination since 1997 for its Butter Cookies and has built a considerable consumer base. Though the arguments relating to monopoly over a colour are raised by the defendant at the first blush appears to be correct, since the product has been sold in the said colour combination for over two decades, the same has to become associated with that of the plaintiff’s product and therefore, the plaintiff is entitled to protect its trademark. The defendant started selling Butter Cookies in the year 2014, but it has been selling only in red wrapper.

There is no explanation as to why they suddenly adopted the blue colour and the adoption appears to be dishonest with an intention to infringe trade mark of the plaintiff and pass off their goods. The defendant even now continues to pack its product in red wrapper in North India, but, the blue colour has now been introduced only in South India. The argument that the blue colour is common for the trade is not proved by them and the plaintiff has demonstrated that the other popular brands are selling in different shades.

The judge decided that the previous judgement on stopping the Mom’s Magic from packaging blue was right, and in the present appeal the appellant was directed to follow the same, But they were allowed to sell the existing stock of their products packed.

Written by- Sushant Kumar Sharma

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