The Delhi High Court in Review: August 2019 [Part II]

With its vast and varied case-docket, the High Court of Delhi has occasion to pronounce verdicts on diverse subjects and myriad areas of law. This two-part monthly column attempts to offer a brief overview of the important pronouncements of the High Court of Delhi over the period of the relevant month in review. While an attempt has been made to ensure the widest possible coverage of the various judgments rendered, comprehensive analysis and critique of the individual judgments is eschewed for the sake of brevity.

In continuation of the judgments discussed in Part I of the column, below are the further judgments from the Delhi High Court for the month of August, segregated as per practice areas.

Intellectual Property Rights

In Tata SIA Airlines Ltd. v. M/s. Pilot18 Aviation Book Store & Anr.[1], the High Court held that when a distinctive mark enjoys enormous goodwill and reputation in a specific field or sector, then unauthorized use of the said mark in relation to an unrelated field or sector would be impermissible inasmuch as there would be the possibility of confusion and deception.

In Cargill India Pvt. Ltd v. GATI Ltd.[2], the Court held that long delay in filing an application under Section 124 of the Trademarks Act, 1999 (‘Trademarks Act’) cannot be held to be an act of abandonment, particularly when the Act does not prescribe any time limit for the filing of such an application, and even the time limit of three months prescribed under section 124(1) (b) (ii) of the Act begins only once the court concerned has framed an additional issue as provided thereunder. On a related note, the Court in Argus Cosmetics Ltd. v. Rameshchandra R. Pandey & Ors.[3] observed that even in the absence of specific and clear averments in this regard, if the substance of the pleadings would demonstrate that the plaintiff had challenged the validity of the registrations in favor of the defendant, then the application filed under Section 124 of the Trademarks Act was liable to be allowed.

While examining the contours of prior publication in the context of an application for registration made under the Insecticides Act, 1968, the Court in Shogun Organics Ltd. v. Gaur Hari Guchhait & Ors.[4] held that in terms of Section 30 of the Patents Act, 1970 (‘Patents Act’), a disclosure made to a government department or to any other authority would not constitute prior publication.

The Court in Novartis AG & Anr. v. NATCO Pharma Ltd.[5] held on an examination of Section 62(2) and Section 11A (7) of the Patents Act that no infringement action is maintainable in respect of an unregistered or revoked patent. Further, though a patent may have been published, the Court held that no infringement action could be maintained till the patent is granted, though damages could ultimately be sought from the date of publication.

While testing the nature of the word ‘Pancharishta’, the Court in Emami Ltd. v. Shree Baidyaraj Ayurved Bhawan Pvt. Ltd.[6] held that the same was not generic in nature inasmuch though the word ‘Arishta’ is a term widely in Ayurveda to generally denote a method of preparation of drugs, the word ‘Pancharishta’ was a unique formulation of five different ingredients which was specific to, and prepared by, the plaintiff in the said case, thereby entitling it to protection.

In Amrish Agarwal v. Venus Home Appliances Pvt. Ltd.[7], the Court issued certain practice directions in relation to the trial of trademark infringement matters. It was directed inter-alia that the following documents ought to be necessarily filed along with the plaint viz. Legal Proceedings Certificate of the trademark, a copy of the trademark registration certificate, copy of the trademark journal along with the latest status report from the website of the Trade Mark Registry etc., and it was further directed that parties ought not to be permitted to deny the factum of registration in a cavalier fashion.

In Astrazeneca AB & Ors v. P.Kumar & Anr.[8], the Court while finding a case of evergreening under Section 3(d) of the Patents Act to have been made out, denied an interim injunction to the plaintiff in the said case even though a valid patent had been granted to the said party inasmuch as the defendant was able to make out a strong case as to the invalidity of the patent concerned.

In M/s Ever Bake v. M/s Ever Bake Pvt. Ltd.[9], the Court reiterated that Section 134 of the Trademarks Act confers jurisdiction on the court in addition to the general jurisdiction conferred on a court under Section 20 of the Code of Civil Procedure, 1908 (‘CPC’). 

Labour and Service 

In P. Sree Krishna v. Airports Authority of India & Ors.[10], the Court took serious exception to, and proceeded to quash, an inquiry report whereby in a brief discussion running into just one-and-a-half pages and without any discussion of the evidence on record, statements of witnesses and correlation of exhibits, the charges were held to be proved in gross violation of the principles of natural justice.

While examining the overall scheme of the Indira Gandhi National Open University Act, 1985 in M Rajamannar v. Vice Chancellor IGNOU & Anr.[11], the Court held that there was no provision in the Act that would permit a review of the decision taken by the Board of Management by a subsequent selection committee, and any such action would be illegal. 

In D.P. Sharma v. M/s. BSES Rajdhani Power Limited & Anr.[12]¸ it was held that if the long delay had compromised or was likely to compromise the ability of the charged person in defending himself/herself in the inquiry proceedings, then such a process was liable to be interfered with.

In Rajeev Agarwal v.Union of India & Ors.[13], the Court held that the procedure prescribed under Section 178 of the Companies Act, 2013, is not required to be followed in respect to the initiation of the disciplinary proceedings, and that the same would be applicable only at the stage of the imposition of penalty.

In Suneel Tyagi v. Union of India & Ors[14], it was held that indiscriminate clubbing of benefits in relation to age relaxation for a specially-abled candidate was impermissible when a Memorandum in question already contained an extended date for specially-abled candidate candidates after taking into account all relevant aspects.

The Court in South Delhi Muncipal Corporation v. Om Prakash & Ors.[15] held that payment of higher allowance which is founded on an intelligible differentia having a rational nexus to the nature of work being performed, and the specialized hazards and risks entailed therein, was eminently permissible.

In Bakhtwar lal Nagpal & Anr v. Prabhu Mahto & Ors.[16], the Court held that reinstatement of an employee cannot be ordered when his/her actions are such which have resulted in a loss of confidence by the management, and in such cases only compensation should be awarded.

In M/s Deccan Charters Pvt. Ltd. v. Sarita Tiwari[17], it was reiterated that a probationer is not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (‘IDA’) and termination of such appointment during the period of probation does not amount to retrenchment within the meaning of Section 2 (oo) of the Act.

Even while recognizing that the position in law was well-settled that the burden of proof was on the workman to show that he/she had, in terms of Section 25(B)(2)(a)(ii) of the IDA, worked for 240 days in the last twelve months preceding the alleged retrenchment, the Court in New Delhi Municipal Council v. Subh Narayan Sah & Anr.[18] held that once the workman had come forward and deposed to the said effect, then the burden of proof could be said to have shifted to the employer to demonstrate to the contrary.

In HT Media Ltd. v. Government of NCT of Delhi & Ors.[19], the Court deprecated the undue haste which had been shown in concluding the process of conciliation under Section 12 of the IDA and held that the same would vitiate the order of reference.

The Court in Delhi Public Library v. The Govt. of NCT of Delhi & Anr[20] reiterated the two-step process of scrutiny contemplated under Section 33A of the IDA with an examination in the first instance of the textual compliance of Section 33 of the IDA by the Management, followed by an examination as to whether the charges against the workman had been validly proved.

In G. D. Goenka Public School & Anr v. Vinod Handa & Anr.[21], the Court refused to countenance an alleged ‘oral’ acceptance of resignation and deemed the same to be insufficient in terms of Rule 114A of the Delhi School Education Rules, 1973 which required specific acceptance of the resignation of an employee within 30 days by the Managing Committee with the approval of the Director of Education.

The Court in Sahib Singh v. Union of India & Ors.[22] held that even where the trial court had used the expression ‘benefit of doubt’ to justify an acquittal, when a perusal of the judgment revealed that the employee concerned had in fact been acquitted on merits after a full-fledged trial, there was no justification for reduction in retiral benefits under the Railway Servants (Discipline and Appeal) Rules, 1968.

The Court in Pritika & Ors. v. DSSSB & Ors.[23] held that permitting a roving-and-fishing enquiry into a recruitment process, before the results are even declared, would amount to an exercise in absurdity and would ensure that no process of examination and selection would ever see finality.

In Union of India and Ors. v. S.K. Jain[24], the Court reiterated that there can be no estoppel against the fundament precepts of service law and when pay protection on a post is assured as per the settled law, then the mere terms and conditions of service, even if agreed to by the employee, would not over-ride the law in this regard.

In Krishan Kumar v. Delhi Transport Corporation[25], it was held that the fact that an employee had been punished on multiple occasions in the past, then merely because an inquiry against him had been quashed on account of the violation of the principles of natural justice would be a justifiable ground to refuse the relief of reinstatement, and adequate compensation in lieu thereof would be the correct remedy.

The Court observed in Uma Gayal v. Union of India & Ors.[26] that compassionate appointment is intended to cure the immediate state of penury and helplessness that a government employee’s family is subjected to when the person dies in harness, and allowing an application for compassionate appointment filed several years after the death of the person, when the family in the interregnum had settled its affairs successfully, would be contrary to the very basis of the policy of compassionate appointment.

In Dr. Kavita Gupta v. Secretary, Ministry of Health and Family Welfare[27], the Court held that the purpose of maternity leave as promised under the Maternity Benefits Act, 1961 was not to extend the period of an employment which is otherwise purely contractual in nature and ends on a particular date, and that the maternity leave could be availed of only within the specified period of the contractual appointment.

In Girish Chand & Ors. v. Union of India & Ors.[28], it was held that the booking of tickets through unauthorized agents and claiming of reimbursement against the same would not amount to a misconduct, in itself, under the service rules, nor would the same render the tickets purchased as tampered or manipulated.

In North Delhi Municipal Council & Anr. v. Rajesh Sharma[29], a Division Bench of the High Court held that the Commissioner was the competent authority to take the requisite disciplinary action against municipal officers and other municipal employees under The Delhi Municipal Corporation Act, 1957. In doing so, it over-ruled the Single Judge judgment in G.S. Matharoo v. CBI[30] and held that certain observations in the judgment of another Division Bench of the Court in this regard in MCD v. Ved Prakash Kanoji[31] as obiter-dicta and not constituting binding precedent.

While considering a challenge to an order of suspension, the Court in Tushar Ranjan Mohanty v. Union of India[32] held that in usual circumstances the exercise of discretion in suspending an employee should not be interfered with by the Court inasmuch as it is difficult for the Court to gauge the prevalent situation at the place of work when the suspension is resorted to, and consequently pass any judgment on the necessity or reasonableness of the suspension.

The Court interpreted Rule 13 & 14 of the Punjab National Bank Employees Provident Fund Trust Rules in K.L. Bhasin v. Punjab National Bank & Ors.[33] to hold that the same did not provide for or mandate any further opportunity of being heard to the employee concerned once a finding as to the loss caused to the bank had already been established in a departmental inquiry, and an order to appropriate the bank’s contribution to provident fund can be straightaway passed. While interpreting Regulation 19 of the Punjab National Bank Officers Service Regulations, 1979 in Sudhir Kumar Mehrotra v. Punjab National Bank & Ors.[34], the Court held that the provision does not discriminate between premature retirement and compulsory retirement, and that once it was demonstrated that the petitioner in the said case was compulsorily retired in the public interest, then the said regulation would squarely apply and the benefit thereof would accrue to the petitioner.

Limitation

In Popular Front of India v. Times Now & Ors.[35], it was held that mere issuance of a notice would not extend the period of limitation for a suit for compensation for libel and slander respectively, which would commence under Articles 75 & 76 of the Schedule to the Limitation Act, 1963 (‘Limitation Act’), in the case of the former from the date when libel was published, and for the latter from the date when the words were spoken or when the special damages complained of resulted.

In Surendra Pal & Anr. v. True Zone Buildwell Pvt. Ltd.[36]¸ the Court had occasion to consider the period of limitation for invocation of arbitration proceedings when fraud had been alleged, and it was held that when the cause of action has been articulated as one purely based on the fraud played by the opposite party then the aggrieved party was required, in terms of Article 17 of the Limitation Act, to invoke arbitration within a period of 3 years from discovery of the fraud, and that intervening events would not extend the said period of limitation.

Matrimonial Disputes and Maintenance

In Inder Singh v. Sumitra[37], the Court held that even in the absence of a formal application for interim maintenance, a court that is seized of a petition seeking maintenance under Section 125 of the Code of Criminal Procedure, 1973 would be empowered to grant interim maintenance keeping in view the beneficial nature of the legislation.

In Binita Dass v. Uttam Kumar[38], it was reiterated that the qualifications possessed by the estranged wife and her potential capacity to earn cannot be a ground to deny interim maintenance, when the wife is otherwise demonstrably without any source of income.

Media Law, Censorship and Defamation

In Sai Cine Productions v. Central Board of Film Certification & Ors.[39], the Court considered the provisions of the Cinematograph Act, 1952, and held that the Act did not empower the Chairperson to override the decision of the Revising Committee, nor does it contemplate the issuance of any direction by the Government to the Chairperson of the Central Board of Film Certification.

The Court in Om Prakash Jain v. Smt. Pushpa Jain[40] while dealing with a case of criminal defamation under Section 499 of the Indian Penal Code, 1860 held that when the allegedly defamatory statements only formed part of a formal complaint made to the police and were not otherwise circulated to any other person, then the charge of criminal defamation could not be said to have been proved.

Personal Law and Succession

In Raj Kumar v. Bhaj Bansal &Ors[41], the Court reiterated that there is no presumption of jointness after the coming into force of the Hindu Succession Act, 1956.

In G. S. Agarwal v. State[42], the Court expounded on important principles in relation to a will. It was noted that inasmuch as the entire purpose of making a will is to distribute a share in a manner thought fit by the testator, the mere fact that a will is entirely in favor of one of the heirs would not by itself impugn upon the validity of the will. Further, it was held that there was no such requirement to specify the details of the entire estate in a will, and a general bequeathing of the entire estate is sufficient and discloses definite intention. Lastly, it was noted that merely because the entire property that is the subject matter of the will was not included in the petition for grant of Letters of Administration, would not totally take away the jurisdiction of the court to grant the requisite relief.

In Hardeep Singh v. Wasan Singh & Ors[43]¸the Court observed that public notice of disinheritance cannot be equated to a will, and cannot exclude an otherwise entitled heir from a share in the estate.

Specific Relief and Property

In Hari Ram Nagar & Ors. v. Delhi Development Authority & Ors.[44], the Court propounded an expanded definition of the term ‘contract’ under Section 20A of the Specific Relief Act, 1963 and held that any legal proceeding which would result in the stalling of an infrastructure project would fall within the meaning of the said provision inasmuch as the proceeding would definitely affect the contract under which the said infrastructure project is being executed.

In Dalip Kumar Gupta v. Kushal Chand Garg & Ors.[45], it was held that the mere filing of successive injunction suits, and which suits were dismissed as withdrawn, would not attract the provisions of Section 52 of the Transfer of Property Act, 1882 (‘TPA’) and a sale of the property in the interregnum would not amount to a fraudulent transfer under Section 53 of the TPA.

The Court in Pawandeep Singh v. Gurdeep Singh Virdi[46] reiterated that an unregistered agreement to sell cannot be used to protect possession under Section 53A of the TPA and the party would be required to sue for specific performance, and till such title is perfected pursuant thereto, no vested right to remain in possession exists.

In Karam Chand v. M/s. Cutting Edge Infrastructure Pvt.Ltd.& Anr.[47], it was held that when an agreement to sell is entered into before an order of attachment is passed in relation to a property, then the subsequent conveyance of the said property after the attachment, pursuant to the original agreement to sell, passes on good title inspite of the attachment.

Tax, Excise, and Customs

In Commissioner of Income Tax, Delhi v. Anoop Jain[48], the Court held that before an assessee can be called upon to tender an explanation about the nature and source of acquisition about an amount of money under Section 69A of the Income Tax Act,1961 (‘ITA’), the pre-conditions contained therein have to be fulfilled i.e., the assessee should be the owner of the money, and that such amount of money was not reflected in his/her books of accounts.

In Pr. Commissioner of Income Tax Delhi-21 v. Lalit Bagai[49], the Court held that the re-opening of an assessment by an Assessing Officer purely on the basis of an express instruction issued to him/her by the Additional Commissioner of Income Tax-Audit, and without any independent reasons having been arrived at by the Assessing Officer for re-opening the assessment, would run afoul of Section 147 of the ITA.

The Court in Ankush Jain v. P. Commissioner of Income Tax-4[50] held that the mere issuance of an acknowledgment under Form-4 by the Commissioner of Income Tax-CPC would not operate as a bar against future action against the assessee if it was subsequently found that the declaration itself was contrary to Section 193 of the Finance Act, 2016 which begins with a non-obstante clause.

In GE Energy Parts Inc. v. The Deputy Commissioner of Income Tax-4 & Anr.[51], it was held that the six-month period of limitation in terms of Section 275 (1) (a) of the ITA cannot be said to start from a date fixed as per the ipse-dixit of the Department by deeming it fit to send the copy of the order which is supposed to be acted upon to the officer concerned.

In Rohit Kumar Gupta v. Principal Commissioner of Income Tax Central-II, New Delhi & Anr.[52], it was held that the Income Tax Settlement Commission cannot reject an application for the reason of the failure of the Applicant to make a full and true disclosure, at the stage of the passing of the final order under Section 245D(4) of the ITA.

The Court in Moral Alloys Private Lt. v. Commissioner of Trade & Taxes[53], while distinguishing between ‘reason to believe’ and ‘reason to suspect’, held that it is the existence of the former which would fulfill the statutory requirement under Section 34 (1) (a)of the Delhi Value Added Tax Act, 2004 (‘DVAT Act’).

In ITD-ITD Cem JV v. Commissioner of Trade & Taxes[54]¸the Court held that Section 38(4) of the DVAT Act refers to proceedings which were pending prior to the expiry of the two-month period within which the refund had to be granted, and when a demand is raised beyond the two-month period, the said demand cannot be used to obstruct a refund from being granted. 

In Gunjan Sharma v. Commissioner of Customs[55], the Court held that the scope of a Custom House Agent’s duty is restricted in nature, and cannot, in ordinary circumstances, be said to extend to the power of a Revenue Official to investigate and inquire into aspects such as the genuineness and veracity of documents. On a related note, in Exim Cargo Services v. Commissioner of Customs (General)[56], the Court reiterated that the revocation of a Custom House Agent’s license is permissible only if an element of mens-rea or active knowledge or connivance is established.

Tender

The Court in Rajesh Gupta v. Union of India and Anr.[57] held that when certain clauses in the tender conditions themselves gave the tendering authority the leeway to waive a minor irregularity which did not amount to a major deviation, then the rejection of a tender on the ground that there was a minor textual omission/difference in the wording of an accompanying affidavit cannot be countenanced.

Dr. Amit George is an Advocate practicing before the High Court of Delhi. The author would like to place on record his appreciation for the assistance provided by Mr. Rishabh Dheer, Mr. Amol Acharya and Mr. Bharat Rayadurgam, Advocates and Ms. Ramsha Mubin, Law Intern.

[1] Judgment dated 05/08/2019 in C.S. (Comm.) 156/2019

[2] Judgment dated 29/08/2019 in C.S. (Comm.) 740/2017

[3] Judgment dated 09/08/2019 in C.S. (Comm.) 1147/2016

[4] Judgment dated 14/08/2019 in C.S. (Comm.) 201/2017

[5] Judgment dated 20/08/2019 in C.S. (Comm.) 229/2019

[6] Judgment dated 26/08/2019 in C.S. (Comm.) 275/2019

[7] Judgment dated 27/08/2019 in C.M. (M) 1059/2018

[8] Judgment dated 08/08/2019 in C.S. (Comm.)749/2018

[9] Judgment dated 30/08/2019 in C.R.P. 163/2019

[10] Judgment dated 01/08/2019 in W.P. (C) 9149/2017

[11] Judgment dated 01/08/2019 in W.P. (C) 7697/2016

[12] Judgment dated 13/08/2019 in W.P. (C) 8489/2016

[13] Judgment dated 20/08/2019 in W.P. (C) 89/2019

[14] Judgment dated 20/08/2019 in W.P. (C) 3946/2018

[15] Judgment dated 02/08/2019 in W.P. (C) 9572/2018

[16] Judgment dated 08/08/2019 in W.P. (C) 14301/2005

[17] Judgment dated 27/08/2019 in W.P. (C) 3422/2014

[18] Judgment dated 22/08/2019 in W.P. (C) 6700/2016

[19] Judgment dated 20/08/2019 in W.P. (C)8239/2015

[20] Judgment dated 19/08/2019 in W.P. (C) 6769/2014

[21] Judgment dated 07/08/2019 in W.P. (C) 2275/2016

[22] Judgment dated 23/08/2019 in W.P. (C) 9055/2018 (DB)

[23] Judgment dated 23/08/2019 in W.P. (C) 9119/2019(DB)

[24] Judgment dated 07/08/2019 in W.P. (C) 2932/2003 (DB)

[25] Judgment dated 09/08/2019 in L.P.A. 67/2018 (DB)

[26] Judgment dated 07/08/2019 in W.P. (C) 8580/2019(DB)

[27] Judgment dated 19/08/2019 in W.P. (C) 8884/2019 (DB)

[28] Judgment dated 20/08/2019 in W.P. (C) 8985/2019(DB)

[29] Judgment dated 28/08/2019 in W.P. (C) 3451/2015(DB)

[30] Judgment dated 25/01/2012 in Crl. M.C. 2695/2010

[31] 2013 SCC OnLine Del 791

[32] Judgment dated 20/08/2019 in W.P. (C) 3257/2018 (DB)

[33] Judgment dated 13/08/2019 in W.P. (C) 7518/2018

[34] Judgment dated 01/08/2019 in W.P. (C) 366/2019

[35] Judgment dated 27/08/2019 in C.S. (OS) 427/2019

[36] Judgment dated 07/08/2019 in O.M.P. 11/2018 & O.M.P. 11/2018

[37] Judgment dated 05/08/2019 in Crl. Rev. Pet. 774/2017

[38] Judgment dated 09/08/2019 in Crl. Rev. Pet. 659/2017

[39] Judgment dated 27/08/2019 in W.P. (C) 674/2015

[40] Judgment dated 07.08.2019 in Crl. L.P. 668/2017

[41] Judgment dated 02/08/2019 in C.S. (OS) 2665/2013

[42] Judgment dated 01/08/2019 in Test. Cas. 31/2006

[43] Judgment dated 27/08/2019 in C.S. (OS) 1299/2007

[44] Judgment dated 22/08/2019 in C.S. (OS)423/2019

[45] Judgment dated 14/08/2019 in R.F.A. 569/2019

[46] Judgment dated 02/08/2019 in R.F.A. (OS) 42/2018 (DB)

[47] Judgment dated 28/08/2019 in Ex. F.A. 25/2017

[48] Judgment dated 22/08/2019 in I.T.A. 927/2005 (DB)

[49] Judgment dated 21/08/2019 in I.T.A. 1444/2018 (DB)

[50] Judgment dated 21/08/2019 in W.P.(C) 6541/2017(DB)

[51] Judgment dated 20/08/2019 in W.P.(C) 5577/2018(DB)

[52] Judgment dated 19/08/2019 in W.P.(C) 6054/2017(DB)

[53] Judgment dated 13/08/2019 in W.P.(C) 10153/2018(DB)

[54] Judgment dated 07/08/2019 in W.P.(C) 7842/2018 (DB)

[55] Judgment dated 20/08/2019 in CUSAA 128/2018 (DB)

[56] Judgment dated 23/08/2019 in CUSAA 325/2018 (DB)

[57] Judgment dated 13/08/2019 in W.P.(C) 8783/2019 (DB)