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The Delhi High Court in Review: May, 2020 [Part II]

Review of Judgments and orders passed by the High Court in May.

Amit George

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 over-view 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.

INTELLECTUAL PROPERTY RIGHTS

In Ajanta Pharma Limited v. Zuventus Healthcare Limited, the Court held that even if there was a deceptive similarity between the names of two pharmaceutical products leading to a possibility of confusion, when the plaintiff’s product was not being sold in India but only exported, then no injunction could be granted against defendant’s product being sold in India inasmuch as it could not be said that defendant dishonestly adopted the mark to cash in on the reputation and/or goodwill of the plaintiff’s mark as the plaintiff had no sales in the Indian domestic market, and thus, no corresponding goodwill in India.

In Pfizer Inc. v. Kwality Pharmaceuticals Limited, the Court held that an abbreviation of descriptive words cannot be used as a trademark if it is a generic term with generic connotations, unless the abbreviation itself could be demonstrated to have acquired a secondary meaning.

In Liberty Footwear Company v. Liberty Innovative Outfit Limited, while reiterating that registration of assignment is mandatory in terms of Section 45 of the Trade Marks Act (‘Trademarks Act’), the Court however observed that when the plaintiff had admittedly applied for recording the assignment at the earliest and there was a huge delay on the part of the Trade Marks Registry, this delay could not prejudice the plaintiff, which had every right to protect its right in the concerned trademark. The Court further held that there was no bar in law for a partner initiating litigation to protect the intellectual property rights of the partnership firm.

In Microsoft Corporation v. Satveer Gaur, by relying on the judgment of the Supreme Court in Indian Performing Rites Society vs. Sanjay Dalia wherein the jurisdiction for institution of suits was clarified by the Supreme Court after referring to Section 62 of the Copyright Act, 1957 and Section 134 of the Trade Marks Act, 1999, the Court inter alia held that a suit can be filed at a place where the plaintiff has a principal place of office and not a subordinate office.

In Sungro Seeds Limited v. Dr. S.K. Tripathi, the Court held that prior to obtaining registration under the Protection of Plant Varieties and Farmers’ Rights Act, 2001, the plaintiff cannot maintain a suit to restrain the defendants from infringing the rights which are yet to be conferred on the plaintiff upon potential grant of registration. The Court further observed that an argument centered on the confidentiality and secrecy obligations of the defendants would also fail for the simple reason that such obligations can only be enforced qua a right for which the plaintiff is actually entitled to protection under the law.

LABOUR AND SERVICE

In Rakesh Midha v. Oriental Fire Insurance Company Limited, the Court held that in the case of a domestic enquiry proceeding, the Enquiry Officer (‘EO’) is not ordinarily expected to sit in appeal over the decision of the officer facing disciplinary proceedings regarding the documents which, according to the officer, are required for his/her defense. The Court clarified that ordinarily the document sought by the officer facing disciplinary proceedings, if it is within the power of the management to provide, ought always to be provided to him/her, however, if it does not lie within the province of the management to provide the said documents, or if the request for documents is found to be manifestly unreasonable, or if there is a deliberate attempt to protract or otherwise frustrate the disciplinary proceedings, only then the request for providing the documents may be denied.

In Captain Rajesh Singh Sehgal v. Ministry of Civil Aviation, the Court observed that even if there was a flaw in the procedure of inquiry adopted by the authority concerned, if the impact of the said defect was not substantial and yet further the conduct of the officer facing disciplinary proceedings would also demonstrate acquiescence in the said procedure without protest, then the inquiry could not be interfered with on this short ground.

In Prithvi Singh v. Assistant Commissioner, GNCTD, the Court held that even though principles of criminal law are inapplicable to departmental inquiries, there was no prohibition in attempting to establish guilt through circumstantial evidence.

In Manisha Priyadarshini v. Aurobindo College - Evening, the Court held that even an employee appointed on an ad-hoc basis could not be subjected to rank discrimination in the manner of re-employment as compared to other similarly situated employees who were admittedly much junior to her in length of tenure.

In Dhiraj Milind Dhurve v. Union Public Service Commission, the Court held that it is incumbent for a person who sought to challenge the findings of a review medical board to at least attempt to produce a competing certificate or a record of examination from a reputed medical facility at the contemporaneous time as that of the proceedings before the review medical board.

LIMITATION

In Dr. Ajay Agarwal v. IBNI8 Media & Software Limited, the Court held that while in a simpliciter case for libel the single publication rule would apply and the suit was required to be filed within one year thereof, however, in the case of a suit where the plaintiff also claimed exemplary or punitive damages on account of mental agony, humiliation etc. and a decree for loss of reputation and goodwill, then the residuary clause i.e., Article 113 of the Limitation Act, 1963 (‘Limitation Act’) which provides for a period of three years, would be the applicable provision.

In Rajnish Yadav v. NDMC, the Court held that a suit filed purely on the basis of a contractual obligation between the parties and not in relation to an act done or purported to have been done or in pursuance to the Delhi Municipal Corporation Act, 1957 (‘DMC Act’) or the Rules, would not be an actionable claim within the meaning of Section 478 of the DMC Act and thus would not be subjected to the special limitation of six months as provided for under Section 478(2) of the Act.

MATRIMONIAL DISPUTES, CUSTODY AND MAINTENANCE

In Meena Kapoor v. Ayushi Rawal, the Court reiterated that the claim of a third party to a marriage, including the mother of one of the spouses, cannot be adjudicated upon by a family court and the civil court would continue to have jurisdiction in this regard.

In Faisal Khan v. Humera, while reiterating that in a case involving the custody of a child the sole criteria was the best interest of the child and not the legal rights of the warring parents, the Court further observed that the fact that the mother had gotten remarried would not by itself be a ground for the father to claim a better right to custody.

In Inder Singh v. Savitri Devi, the Court disbelieved the husband who had challenged the rejection of the petition filed by him under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (‘HMA’) primarily on the ground of desertion inasmuch as it found that the couple were blessed with two children whose marriage ceremonies were conducted at the house of the husband in the presence of the wife. The Court further observed that merely staying apart from each other on account of the exigency of a transferable job would not entitle the husband to a decree of divorce on the ground of desertion when it was an admitted fact that the wife would still come over to the matrimonial house on regular occasions.

In Jitender Kumar @ Rajan v. Kamlesh, and in Rajni Kant Srivastava v. Kumudini Srivastava, the Court rejected the contentions of the husband who had challenged the rejection of the petition filed by him under Section 13(1)(i-a) of the HMA primarily on the ground of cruelty. The Court inter-alia observed that even if any misconduct indeed existed on the part of the wife, the action of the husband in filing a petition under Section 9 of the HMA for restitution of conjugal rights would in-fact equate to the husband condoning the alleged past misdemeanors of the wife.

In Venkatesh Narsimhan v. V. Sujatha, while upholding the dissolution of the marriage between the parties, the Court approved the finding of the family court that it was unfair to expect only the working wife to take the entire responsibility of both child rearing as also the running of the household without any support from a recalcitrant husband.

MEDIA LAW, CENSORSHIP AND DEFAMATION

In Ashutosh Dubey v. Netflix, the Court held that a satirical comment with regard to an entire class of persons, in this case lawyers, without reference to any specified or identifiable sub-group, particularly when the comment is intended as a way of exposing a social evil, cannot be restrained inasmuch as it would amount to a violation of the freedom of expression guaranteed under the Constitution.

In Horlicks Limited v. Zydus Wellness Products Limited, the Court held that a disclaimer which has been put in a print advertisement so as to avoid disparagement of the competitor’s goods should be present on screen for a sufficient period of time or, in the alternative, the voice-over of the advertisement should also contain the said disclaimer.

In Experion Developers Private Limited v. UP Television Network Private Limited, while reiterating that a company can sue for defamation, the Court held that a complete failure of the defendant to even attempt to substantiate the contents of its report which levelled serious allegations against the plaintiff would amount to defamation and, therefore, in spite of the inherent constitutional right of free speech, the plaintiff would be entitled to an injunction. The Court further observed that where the defendant is a media concern, then there is a much larger likelihood of the general public unquestioningly believing the contents of such a report.

PERSONAL LAW AND SUCCESSION

In Tripta Kaushik v. Sub-Registrar VI-A, Delhi, the Court, after an extensive review of the applicable precedent, postulated the following tests to determine as to whether an instrument can be considered as a release/relinquishment deed:

a. In determining whether the document is a release or Gift/Conveyance, the nomenclature used to describe the document or the language which the party may choose to employ in framing the document, is not a decisive factor. What is decisive is the actual character of the transaction intended by the executants;

b. Determination of the nature of the document is not a pure question of law;

c. Where a co-owner renounced his right in a property in favour of the other co-owner, mere use of word like “consideration” and “transfer” would not affect the true character of the transaction;

d. What is intended by a Release Deed is the relinquishment of the right of the co-owner; e. Co-ownership need not be only through inheritance, but can also be through purchase;

f. Where the relinquishment of the right by the co-owner is only in favour of one of the co-owner and not against all, the document would be one of Gift/Conveyance and not of “release.”

In Parmod Kumar Jain v. Ram Kali Jain, the Court held that under a family settlement, shares of each of the member of the family in different properties of the family can be modified by increase, decrease or relinquishment in favor of another member already having a share in that property without a registered document. However, even if a family settlement was in writing but not registered, right in immovable property could not be transferred from one family member to another family member who earlier had no right whatsoever in that property. The Court further noted that a plea that the business entity in question was actually a joint Hindu family trading firm was required to be substantiated by reference to the prior and consistent representation of the said entity as a joint Hindu family before the taxation and revenue authorities as well.

RENT CONTROL

In Rajinder Prasad Singhal v. Sharda Devi, the Court held as Section 14(1)(b) of the Delhi Rent Control Act, 1958 (‘DRCA’) provides for the grant of an order for the recovery of possession of any premises in favor of the landlord against the tenant where the tenant has sublet, assigned or otherwise parted with possession of the whole or any part of the premises without obtaining the consent in writing of the landlord, even in the absence of a sub-letting agreement, the proven fact that the sub-tenant was in possession of the premises to the exclusion of the tenant would entitle the landlord to a decree of possession.

In Gauri Shankar v. Rakesh Kumar, the Court held that when the tenancy was surrendered to the landlord by one of the co-lessees, then the said surrender would also bind the other co-lessee, and the same principle as enshrined under Section 43 of the Indian Contract Act, 1872 (‘Contract Act’) by virtue of which one of the two persons who have together taken a premises on rent could by making payment to the landlord discharge the liability of the other tenant also, would apply. The Court, however, observed that such a power to surrender could be circumscribed by a contract to the contrary.

RIGHT TO INFORMATION

In Dr. R.S. Gupta v. GNCTD, in the absence of any demonstrable public interest in their disclosure, the Court held that a request for providing complete copies of school staff attendance registers with salary slips of employees cannot be provided inasmuch as the same represented third-party information under Section 8(i)(j) of the Right to Information Act, 2005 (‘RTI Act’).

In Meena Sharma v. Nand Lal, the Court set aside an order of penalty imposed on a notary-public by the chief information commissioner (‘CIC’) inasmuch as it noted that in the absence of a special procedure provided for the maintenance of records, the justification that a record which pertained to a period almost seven years prior to the date of the RTI application having been damaged by termites could not be said to be completely implausible.

SPECIFIC RELIEF AND PROPERTY

In Ramanand v. Dr. Girish Soni, the Court held that for a lessee to seek protection under sub-section 108(B)(e) of the Transfer of Property Act, 1882 (‘TP Act’), there has to be a demonstrable complete destruction of the property, which is permanent in nature due to the force majeure event. The Court, therefore, surmised that temporary non-use of premises due to the lockdown which was announced due to the COVID-19 outbreak cannot be construed as rendering the lease void under Section 108(B)(e) of the TP Act and accordingly the tenant also could not avoid payment of rent for this period.

In Romi Garg v. Lalit Modi, the Court while reiterating that the grant of specific performance was a discretionary and equitable remedy, held that the fact that the plaintiff had paid nearly 2/3rd of the total bail consideration at the relevant time coupled with a clear demonstration of readiness and willingness would entitle the party to specific performance, and the argument of the defendant that this course should not be adopted inasmuch as the value of the property had risen sky high in the interregnum was rejected.

In Kamla Sharma v. NDMC, the Court held that the general rule which proscribes the filing of a fresh suit when the earlier suit was withdrawn without specific grant of permission by the Court would also apply in the case of a fresh appeal filed before the Appellate Tribunal for Municipal Corporation of Delhi and North Delhi Municipal Corporation when the earlier appeal filed before it was admittedly withdrawn unconditionally and without reservation of liberty.

In Inox Leisure Limited v. PVR Limited, the Court while reiterating that the relief of specific performance can only be claimed against the parties with whom the plaintiff had a contractual relationship further held that the injunction sought for could not be utilized to create a virtual monopoly and violate the fundamental right of other entities to carry on trade and business within the meaning of Article 19(5) of the Constitution.

In Pradeep Kumar Bhatia v. Paramjit Kaur Paintal, the Court observed that when a defendant alleged lack of readiness and willingness on the part of a plaintiff to perform its set of obligations under the concerned agreement, it was simultaneously incumbent on the defendant to, at the outset, demonstrate its own readiness and willingness to perform its part of the bargain. The Court further held that the bare argument that there was a huge rise in property prices on account of the suit having remained pending for more than a decade could not be a ground to deny specific performance especially when the plaintiff had not contributed to the delay in the adjudication of the Suit.

STAMP ACT

In Vandana Farms & Resorts Private Limited v. Shri Colonizer & Developers Private Limited, the Court held that a memorandum of understanding which records a novation of Contract under section 62 of the Indian Contract Act, 1872 whereby the parties agreed to supersede prior agreements by a new agreement would be an agreement within the meaning of the Indian Stamp Act, 1899 (‘ISA’) and would not fall within the definition of bond as provided in section 2(5)(b)& 2(5)(c) of the ISA nor within the meaning of Section 2(5)(a) of the ISA.

TAX, EXCISE AND CUSTOMS

In Sanjay Sawhney v. Principal Commissioner of Income Tax, the Court held that Rule 27 of the Income Tax (Appellate Tribunal) Rules, 1963 (‘Income Tax Appellate Tribunal Rules’) protects the right of a respondent who may not have been aggrieved by an order to still defend the order before the appellate forum on all grounds including grounds which may have gone against the respondent in the impugned order. The Court overruled the view of the Income Tax Appellate Tribunal (‘ITAT’) and held that it was not mandatory that an application in writing was required to be made for availing the benefit offered under Rule 27 of the Income Tax Appellate Tribunal Rules.

In Principal Commissioner of Income Tax-7 v. Open Solutions Software Services Private Limited, the Court held that even while applying the Transactional Net Margin Method (‘TNM Method’), comparables cannot be picked on the basis of broad classification under various heads, and that the actual functional profile of the comparable must be similar, if not identical, to that of the taxpayer-assessee. The Court further observed that in the case of comparability analysis, the business environment; demand and supply of the services; assets employed, and, competence to provide different services are factors which would have a material bearing on the profitability of the entities and, therefore, regard must be had to such factors.

In Brand Equity Treaties Limited v. The Union of India, the Court held that inasmuch as Rule 117 of the Central Goods and Service Tax Rules, 2017 (‘CGST Act’) was intended to allow for a smooth transition from the erstwhile service tax regime to the Central Goods and Services Tax (‘CGST’) Regime, then considering the serious technical and logistical issues which were being encountered in the new regime, the time limit prescribed for transitioning of credit under Rule 117 was required to be read as merely directory in nature, and entities were permitted to avail the benefit within a period of 3 years from the appointed date.

In Bharti Airtel Limited v. Union of India, the Court observed that a rectification/adjustment mechanism which had been introduced through means of a circular would still need to be in conformity with the overall scheme of the CGST Act and could not purport to take away a vested accrued right under the Act.

TENDER AND BLACKLISTING

In PKSS Infrastructure Private Limited v. South Delhi Municipal Corporation, the Court held that though a bidder was entitled to receive the relevant data at the stage of bidding, this privilege could not be extended to compelling the tendering authority to disclose all and sundry information or data which does not even exist.

In China Railway No. 10 Engineering Group Company Limited v. National Highways Authority of India, the Court held that a foreign entity which was bidding for a tender in India was required to ensure that its bid and the accompanying documents were compliant with the specific requirements of the tender, in particular, as also the Indian law, in general.

In Binay Kumar Mishra v. The Director (R.P. Cell), Delhi Urban Shelter Improvement Board, the Court while rejecting a challenge to a tender notification held that the petitioner which was the incumbent entity could not as a matter of right seek a perpetuation of its contract merely because the validity of other contract packages had been extended by the public authority concerned on germane grounds.

Amit George
Amit George

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 Advocates Rishabh Dheer, Amol Acharya, Bharat Rayadurgam and Piyo Harold Jaimon.

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