Civil Suit: Trial has to be de novo after return of plaint

Jurisdiction of Civil Court:

It is no more res­integra that in a dispute between parties where two or more courts may have jurisdiction, it is always open for them by agreement to confer exclusive jurisdiction by consent on one of the two courts. Clause 16B of the agreement extracted above leaves us in no doubt that the parties clearly indicated that it was only the court at Delhi which shall have exclusive jurisdiction with regard to any dispute concerning the franchise agreement and no other court would have jurisdiction over the same. In that view of the matter, the presentation of the plaint at Gurgaon was certainly not before a court having jurisdiction in the matter.

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The Public interest litigator Prashant Bhushan in Contempt cross heir

Scandalizing the Court is contempt:

Prashant Bhushan, the Supreme Court lawyer who is famous for filing public interest litigation in Supreme Court on almost every matter and who has difficulty in hiding his political distaste for present regime has been issued notice of show cause over his two scandalous tweets. Read the full order:

Full Order:

Click to access 14323_2020_33_16_23062_Order_22-Jul-2020.pdf

Is hundred percent reservation in Government service permissible in law?

Validity of 100% reservation to the Scheduled Tribe candidates out of whom 33.1/3% shall be women for the post of teachers in the schools in the scheduled areas in the State of Andhra Pradesh.

(1) What is the scope of paragraph 5(1), Schedule V to the Constitution of India?

The Governor in the exercise of powers under Para 5(1), Fifth Schedule of the Constitution, can exercise the powers concerning any particular Act of the Parliament or the legislature of the State. The Governor can direct that such law shall not apply tothe Scheduled Areas or any part thereof. The Governor is empowered to apply such law to the Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify148in the notification and can also issue a notification with retrospective effect.

2(a) Does the provision empower the Governor to make a new law?

The Governor is empowered under Para 5(1), Fifth Schedule of the Constitution, to direct that any particular Act of Parliament or the Legislature of the State, shall not apply to a Scheduled Area or apply the same with exceptions and modifications.The Governor can make a provision within the parameters of amendment/ modification of the Act of Parliament or State legislature.The power to make new laws/regulations, is provided in Para 5(2),Fifth Schedule of the Constitution for the purpose mentioned therein,not under Para 5(1) of the Fifth Schedule to the Constitution of India.

(b) Does the power extend to subordinate legislation?

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Mismanagement of Company and Oppression of Minority Shareholder: Locus

Family dispute about ownership of shares:

Merely disowning a son by late father or by the family, is not going to deprive him of any right in the property to which he may be otherwise entitled in accordance with the law. The pertinent question needs to be tried in a civil suit and adjudicated finally, it cannot be decided by NCLT in proceedings in question. Hence, we refrain from deciding the aforesaid question raised on behalf of the appellants in the present proceedings. In the facts and circumstances, it would not be appropriate to permit respondent No.1 to continue the proceedings for mismanagement initiated under sections 241 and 242, that too in the absence of having 10% shareholding and firmly establishing his rights in civil proceedings to the extent he is claiming in the shareholding of the companies.

Civil Dispute:

With regard to the dispute as to right, title, and interest in the securities, the finding of the civil Court is going to be final and conclusive and binding on parties. The decision of such a question has to be eschewed in instant proceedings.It would not be appropriate, in the facts and circumstances of the case, to grant a waiver to the respondent of the requirement under the proviso to section 244 of the Act, as ordered by the NCLAT.

We are of the opinion that the proceedings before the NCLT filed under sections 241 and 242 of the Act should not be entertained because of the pending civil dispute and considering the minuscule extent of holding of 0.03%, that too, acquired after filing a civil suit in company securities, of respondent no. 1. In the facts and circumstances of the instant case, in order to maintain the proceedings, the respondent should have waited for the decision of the right, title and interest, in the civil suit concerning shares in question.The entitlement of respondent No.1 is under a cloud of pending civil dispute. We deem it appropriate to direct the dropping of the proceedings filed before the NCLT regarding oppression and mismanagement under sections 241 and 242 of the Act with the liberty to file afresh, on all the questions, in case of necessity, if the suit is decreed in favour of respondent No.1 and shareholding of respondent No.1 increases to the extent of 10% required under section 244.

[Source: Aruna Oswal vs. Pankaj Oswal decided by SC on 6th July 2020]

“Booking” is a generic name which can not be registered as trademark

A generic name is the name of a class of products or services, is ineligible for trademark registration.

Booking.com, a travel-reservation website, sought federal registration of marks including the term “Booking.com.” USA Supreme Court Concluded that “Booking.com” was a generic name for online hotel-reservation services, not eligible to registration as Trademark.

Held: A term styled “generic.com” is a generic name for a class of goods or services only if the term has that meaning to consumers.

(a) Whether a compound term is generic turns on whether that term, taken as a whole, signifies to consumers a class of goods or services. The courts below determined, and the PTO no longer disputes, that consumers do not in fact perceive the term “Booking.com” that way. Because “Booking.com” is not a generic name to consumers, it is not generic.

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How to make a Will

This is a legal guide written in accordance with Indian Law but it may generally be correct for all countries following Anglo-Saxon laws. Further, succession to immovable properties situated in India, shall be regulated by Indian Laws, irrespective of the domicile of such person. In other words, foreigners who own immovable assets in India, shall have to confirm to Indian Laws to make a legally competent and operative Will. This book is intended to act only as a brief introduction to the laws relating to Wills and is not intended to replace legal advice from a competent practitioner of law.
This book is intended to remove doubts and myths about Wills which are compounded by free misinformation available on the Internet either as a web page or guide-lines in pdf format.
The target readers are law students and amateur beginners who wish to draft their own Will. Various specimen of Wills are also included with the book. It is however strongly advised that after drafting a Will in accordance with this book, do consult a Lawyer of your choice and get it vetted from him/her.
Caution: This book is generally applicable to Hindus, Sikh, Jain etc. domiciled in India. Most part of this Book may not be applicable to Indian Christians, Muslims and Parsees who are governed by separate customary law. It also do not apply to armymen, airmen and marines who are entitled to execute privileged (oral) Wills.

This is the self-help book on drafting of Wills:

Click at any of the following links to a free sample of this book on Wills:

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Contemporanea Expositio: Clarification/Circular of Department when not binding

Clarifications/Circulars:

The so-called Clarifications dated 09.11.1989 and 27.12.2000 had not been of explaining the meaning of any doubtful term or expression in the statutory provision nor they were explaining the object and purport of the provision concerned. The said Clarifications/Circulars had merely been the expression of the understanding of the concerned officer, be it SCCT or PCCT, about operation of Section 7-A of the Act vis-à-vis the purchase turnover of the empty bottles purchased by the assessee. However, such understanding of the officer concerned turns out to be a pure misunderstanding, when it stands at contradiction or incongruous to the declaration of law by the Courts; and could only be ignored. The latest Circular of the year 2002, issued after decision of the jurisdictional Tribunal in the case of Appollo Saline Pharmaceuticals (supra) could also be read only to the extent it is in conformity with the decision of the Tribunal (that came to be approved by the High Court) and in any case, even this circular cannot be decisive of the interpretation of Section 7-A of the Act. The decisive interpretation shall only be the one which is rendered in the binding decision/s of the Court. In continuity, we may also observe that various other decisions referred on behalf of the assessee, that modification of any particular circular or guideline or policy decision could only be made effective prospectively, have no application whatsoever to the present case.

Held that the purchase turnover of the empty bottles purchased by the assessee from the unregistered dealers under bought note is exigible to purchase tax under Section 7-A of the Tamil Nadu Act; and the assessee cannot escape such liability on the strength of the Clarifications/Circulars.

[Source: Commercial Tax Officer vs. Mohan Brewries, decided by Supreme Court on 29th June 2020.]

Note: Contemporanea expositio is a well known doctrine of interpreting a statute by reference to the exposition it has received from contemporary authority.

Monthly tenancy with provision for annual increase of rent does not require registration

The rent note contained only monthly rent and payment month by month.

As per law there shall be a presumption that the tenancy in the present case is monthly tenancy.

When the clauses of rent note are cumulatively read, the intention of the tenant is more than clear that tenancy was only monthly tenancy, which could have been terminated on default of payment of rent by 5th day of any month or by notice of one month. The rent deed did not confer any right to tenant to continue in the tenancy for a period of more than one year nor it can be said that tenancy was created for a period of more than one year.

Payment of salary to employees during Corona lock down 2020

Validity of directions given for full payment of wages:

The petitioner’s case is that notifications are arbitrary, illegal, irrational and unreasonable and contrary to the provisions of law including Article 14, Article 19(1)(g). Notifications are unreasonable and arbitrary interference with the rights of petitioner Employers under Article 19(1)(g). Notifications are also contrary to the principles of Equal work Equal Pay and also No work No pay, for it does not differentiate between the workers who are working during the lockdown period in establishment such asthe petitioner who have been permitted to operate during the lockdown period and the workers who had not worked at all. 5.The Home Secretary, Ministry of Home Affairs, Government of India, cannot invoke Section 10(2)(l) or any other provisions of Disaster Management Act, 2005,to impose financial obligations on the private sector such as payment of wages. The Central Government has the power to allocate funds for emergency response, relief, rehabilitation, mitigation of disasters under Disaster Management Act. The ultimate onus for any compensation towards workers shall ultimately be of Government and the said liability cannot be shifted upon the employers in the Private establishment. The impugned notifications have the effect of completely negating the statutory provisions under the Industrial Disputes Act, 1947.

Effect of Lock down:

It cannot be disputed that the lockdown measures enforced by the Government of India under the Disaster Management Act, 2005, had equally adverse effect on the employers as well as on employees. Various Industries,establishments were not allowed to function during the said period and those allowed to function also could not function to their capacity.There can be no denial that lockdown measures which were enforced by the Government of India had serious consequences both on employers and employees.

Paying capacity:

Some of the industries and establishments may bear the financial burden of payment of wages or substantial wages during the lock-down period to its workers and employees. Some of them may not be able to bear the entire burden. A balance has to be struck between these two competitive claims.The workers and employees although were ready to work but due to closure of industries could not work and suffered. For smooth running of industries with the participation of the workforce, it is essential that a via media be found out.

Directions by Supreme Court:

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Income Tax: Commission to Procure Goods from India if exempt?

Difference between Service Rendered from India and in India:

Exemption to Income u/s 80-O of  Income Tax Act, 1961.

The agreements of the appellant with the foreign entities primarily show that the appellant was to locate the source of supply of the referred merchandise and inform the principals; to keep liaison with the agencies carrying out organoleptic/bacteriological analysis and communicate the result of inspection; to make available to the foreign principals the analysis of seafood supply situation and prices; and to keep the foreign principals informed of the latest trends in the market and also to negotiate and finalise the prices. As per the agreements, in lieu of such services, the appellant was to receive the agreed commission on the invoice amounts.

In contrast to what has been observed in the cases of J.B. Boda &Co. (advising on the risk factor related to the proposed insurance/reinsurance) and E.P.W. Da Costa (dealing with statistical analysis of data collected), what turns out as regards the activities/services of the appellant is that the appellant was essentially to ensure supply of enough quantity of good quality merchandise in proper packing and at competitive prices to the satisfaction of the principals. This has essentially been the job of a procuring agent. Though the expressions “expert information and advice”, “analysis”, “technical guidance” etc., have been used in the agreements but, these expressions cannot be read out of context and de hors the purpose of the agreement. All the clauses of the agreements read together make it absolutely clear that the appellant was merely a procuring agent and it was his responsibility to ensure that proper goods are supplied in proper packing to the satisfaction of the principal. All other services or activities mentioned in the agreements were only incidental to its main functioning as agent. Significantly, the payment to the appellant, whatever label it might have carried, was only on the basis of the amount of invoice pertaining to the goods. There had not been any provision for any specific payment referable to the so-called analysis or technical guidance or advice. Viewed from any angle, the services of the appellant were nothing but of an agent, who was procuring the merchandise for its principals; and such services by the appellant, as agent, were rendered in India. Even if certain information was sent by the assessee to the principals, the information did not fall in the category of such professional services or information which could justify its claim for deduction under Section 80-O of the Act. In other words, in the holistic view of the terms of the agreements, we have not an iota of doubt that the appellant was only a procuring agent, as rightly described by the High Court. 33.If at all any doubt yet remains about the nature of services of the appellant, the same is effectively quelled by the default clauses in the agreements in question.

Conclusion:

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