Case BriefsHigh Courts

Madras High Court: Asserting that “Deity” in the temple is a “minor” and the Court should be astute to protect the interests of an idol in any litigation, S.M. Subramaniam, J., held that,

When the trustee or the Executive Officer or the custodian of the idol, temple and its properties, leave the same in lurch, any person interested in respect of such temple or worshipping deity can certainly be clothed with an adhoc power of representation to the protect its interest.

Background

Petitioner submitted that land to an extent of 3227 sq. feet belonged to the 4th respondent temple and the superstructure originally belonged to the father of the petitioner.

Further, it was stated that by a registered sale deed, petitioner’s father had sold the superstructure along with the Lease Hold Rights to his brother. After the death of the father of the petitioner, his brother Mr D. Kumarasamy executed the settlement deed in favour of the petitioner.

Pursuant to the said settlement deed, the petitioner was a permissible tenant and was in continuous possession and enjoyment of the property till date by letting out to tenants. Further, the petitioner claimed that he paid the admitted rent regularly. He requested the 4th respondent for name transfer as he had done some minor repairs to the property.

Adding to the above, it stated that the 4th respondent had been increasing the rent and the same was being paid by the petitioner.

Petitioner submitted that the 4th respondent had terminated the lease deed and thereafter, the suit was filed for injunction not to put up any illegal construction in the temple properties.

In view of the above circumstances, the competent authorities initiated action under Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 and passed the eviction order. An eviction order had been communicated to the petitioner and thereafter an appeal was filed.

In an earlier order, this Court had directed the petitioner to deposit a sum of Rs 10,00,000 before the third respondent temple and the petitioner paid the said amount and thereafter, Court directed respondent 1 to dispose of the appeal.

What is the Grievance of the petitioner?

Petitioner stated that during the pendency of the appeal, respondent was initiating the steps to evict the petitioner as respondent 1 had not granted any interim stay of the eviction order.

Due to the above-stated facts, instant petitioner was moved.

Analysis, Law and Decision

Petitioner claimed to be the authorized leaseholder of the subject temple, though he could not produce any lease deed or documents to establish that his father was a leaseholder recognized by the Temple Authorities.

Bench noted that no one was holding a valid lease document properly executed by the Temple Authorities.

Court opined that the manner in which the temple properties were dealt with by the petitioner, sixth respondent and father of the petitioner were absolutely in violation of the provisions of the Act, and they were not only encroachers and illegal occupants, but utilized the property of the temple in an unlawful manner for their personal and unjust gains.

Bench was shocked to note the above and stated that though the Authorities initiated action, this Court had to record that such actions initiated were not only insufficient but raised a doubt about the active or passive collusion on the part of Competent Authorities of the temple.

Section 34 of the Act enumerates ‘alienation of immovable Trust property’. Sub section (1) of Section 34 stipulates that “Any exchange, sale or mortgage and any lease for a term exceeding five years of any immovable property, belonging to, or given or endowed for the purpose of, any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution”.

Court observed that, the temple property, which is meant for the benefit of the temple, can never be allowed to be encumbered in a different manner and in such circumstances, the Courts are bound to step in and deal with the issues properly

Significant, the Bench observed that where the persons in management of a temple failed to protect the interest of the temple diligently, the Court is empowered to take notice of such facts and deal with the issues in an appropriate manner.

If there are lapses, slackness or negligence on the part of the Executive Officer and the trustees of the temple, “it is the duty of the Court to ensure that the ‘Deity’ does not suffer thereby. The Courts should be astute to protect the interests of an idol in any litigation.”

Continuing to make some very interesting observations, Court added that the temple properties are allowed to be looted by few greedy men and by few professional criminals and land grabbers.

Lapses, negligence, dereliction of duty on the part of public officials are also to be viewed seriously and all appropriate actions in this regard are highly warranted.

High Court also noted that there are many instances where persons entrusted with the duty of managing and safeguarding the properties of temples deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims ownership or tenancy, or adverse possession.

The above is only possible with the passive or active collusion of the authorities concerned.

Such acts of ‘fences eating the crops’ should be dealt with sternly.

In the present matter, Court stated that the petitioner was not only an encroacher but abused the property of the temple for his personal gains. He has been enjoying the temple properties in an illegal manner, but derived profit from the temple properties and the profit gained was running to several lakhs.

In view of the above said, Bench expressed that,

High Court has its constitutional obligation in such circumstances to step-in and protect the interest of the minor idol and issue appropriate orders.

Directions of the Court:

  • Respondents 1 to 5 are directed to complete the eviction in all aspects and take over possession of the temple properties and deal with the same in accordance with the provisions of the Act and more specifically for the benefit of the temple administration;
  • Respondents 1 to 5 are directed to conduct an enquiry and assess the financial loss occurred to the subject temple and initiate all appropriate actions against all the persons concerned for the recovery of the financial loss caused to the temple;
  • Respondents 1 to 5 are directed to look into the active or passive collusion on the part of the Authorities in dealing with the temple properties in such a manner and initiate appropriate action against all those Authorities, who have contributed for the maladministration of the temple properties

[K. Senthilkumar v. Government of Tamil Nadu, WP No. 18190 of 2021, decided on 15-09-2021]


Advocates before the Court:

For Petitioner:G. Devi, For Mr V. Raghupathi

For Respondents: Mr N.R.R. Arun Natarajan, Government Advocate,  [For R1 to R4]

Mr Willson Topaz, For M/s A.S. Kailasam and Associates

Government Advocate [For R5]

Case BriefsSupreme Court

Supreme Court: The bench of L. Nageswara Rao and BR Gavai, JJ has, in two judgments, has held that where the plaintiff’s title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession.

“… if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.”

While where there are necessary pleadings regarding title and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction; such cases are the exception to the normal rule that question of title will not be decided in suits for injunction.

Below are two important rulings on the issue suits for prohibitory injunction relating to immovable property

Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594

(a) Where a cloud is raised over the plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the   finding   on   possession.   But   in   cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.

Jharkhand State Housing Board v. Didar Singh, (2019) 17 SCC 692

“11. It is well settled by catena of judgments of this Court   that   in   each   and   every   case   where   the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.”

[KAYALULLA PARAMBATH MOIDU  HAJI v. NAMBOODIYIL VINODAN, CIVIL APPEAL NOS. 5575­5576 OF 2021 and T.V. RAMAKRISHNA REDDY v. M. MALLAPPA, 2021 SCC OnLine SC 675, decided on 07.09.2021]


*Judgments by: Justice BR Gavai

Know Thy Judge| Justice B.R. Gavai

Appearance in first case:

For appellant/plaintiffs: Senior Advocate P.N. Ravindran

For Respondent/Defendant: Senior Advocate V. Chitambaresh

Appearance in second case:

For appellant/plaintiffs: Senior Advocate Ajit Bhasme

For BDA: Advocate S.K. Kulkarni

For respondent: Senior Advocate Basava Prabhu S. Patil

Case BriefsSupreme Court

Supreme Court: A 3-Judge Bench of N.V. Ramana, CJI and A.S. Bopanna and Hrishikesh Roy, JJ. upheld the judgment of the Madras High Court passed in a second appeal whereby it had reversed the order of the first appellate court granting injunction in favour of the appellant−plaintiff in a property dispute. Rejecting the contentions of the appellant regarding propriety of High Court’s exercise of jurisdiction in second appeal under Section 100 CPC, the Supreme Court observed:

“[M]erely because the High Court refers to certain factual aspects in the case to raise and conclude on the question of law, the same does not mean that the factual aspect and evidence has been reappreciated.”

The Supreme Court was deciding an appeal filed against the judgment of the Madras High Court passed in the second appeal preferred by the respondent−defendant. The plaintiff had filed an original suit seeking perpetual injunction to restrain the defendant from interfering with his peaceful possession and enjoyment of the suit property. The plaintiff claimed that he had been enjoying the suit property for a period of forty years by paying kist. The defendant disputed the right claimed over the suit property by the plaintiff.

The trial court dismissed the suit. The plaintiff preferred a regular first appeal under Section 96 CPC before the first appellant court. Placing much reliance on the kist receipts produced by him, the first appellate court concluded that the plaintiff was in possession of the suit property. Thereafter, the defendant filed a second appeal under Section 100 CPC before the High Court. The High Court framed a substantial question of law, as to whether the suit without the prayer for declaration is maintainable when especially the title of the plaintiff is disputed. Having taken note of rival contentions, the High Court concluded that the substantial question of law had substance, and therefore set aside the judgment of the first appellate court. Aggrieved, the plaintiff approached the Supreme Court.

The appellant contended that the parameter for interference by the High Court in the second appeal under Section 100 CPC is well established and the High Court cannot travel beyond the same and advert to reappreciate the evidence on factual aspects. It was contended that when the first appellate court, which was the last court for appreciated of facts, had recorded its finding, the same could not be interfered by the High Court on reappreciation of evidence.

Summarising the legal position on the subject, the Supreme Court reasserted the position that in a second appeal under Section 100 CPC there is very limited scope for reappreciating the evidence or interfering with findings of fact rendered by trial court or the first appellate court, and therefore it was necessary to see whether the High Court in the instant case breached the settled principle.

The Supreme Court noted that the findings by the trial court and the first appellate court were divergent. The trial court concluded that the kist receipts would not establish plaintiff’s possession, whereas the first appellate court in fact placed heavy reliance solely on the kist receipts. The Court observed:

“When such divergent findings on fact were available before the High Court in an appeal under Section 100 CPC though reappreciation of the evidence was not permissible, except when it is perverse, but it was certainly open for the High Court to take note of the case pleaded, evidence tendered, as also the findings recorded by the two courts which was at variance with each other and one of the views taken by the courts below was required to be approved.”

The Court said that question of law for consideration will not arise in abstract but in all cases will emerge from the facts peculiar to that case and there cannot be a strait jacket formula.

Even otherwise, the Supreme Court found that the plaintiff’s possession of the suit property was not established. Further, the Court was of the view that the first appellate court misdirected itself and proceeded at a tangent by placing burden on the defendant.

In such view of the matter, the Supreme Court held that it would not be appropriate to interfere with the judgment of the High Court which was in consonance with the fact situation in the case. The appeal was dismissed. [Balasubramanian v. M. Arockiasamy, 2021 SCC OnLine SC 655, decided on 2-9-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Jayant Nath, J., did a comprehensive analysis of the matter involving trademark infringement.

Legacy of Rajdhani

Plaintiff had originally conceived and adopted the trademark/label ‘Rajdhani’ for several products. Plaintiff company was formed in 1983 and carried forward the said business under the trademark/label’ Rajdhani’.

Trademarks/Labels are owned by the plaintiff company and ‘Rajdhani Flour Mills Limited’ as a sister concern of the plaintiff company vide an agreement.

Further, it was stated that the plaintiff and Rajdhani Flour Mills have co-existing rights in the trademark/labels in question.

It is stated that the plaintiff came into existence in 1983. Therefore, there is no question of the plaintiff using the composite trade mark ‘Rajdhani’ since 1966 as claimed.

Even if for some reason it was assumed that the plaintiff had been using the trademark since inception, the defendants have been continuously using the trademark ‘Rajdhani’ and its variants since 1965.

Analysis, Law and Decision

Whether plaintiff has any rights to the trade mark RAJDHANI keeping into account the alleged memorandum of family settlement?

It was claimed that the origin of the trade mark in question RAJDHANI was in 1966, present director of the plaintiff conceived and adopted the trade mark/label.

Prima facie, Court opined that the plea of defendants that pursuant to the family settlement, no rights flow to the plaintiff was without merits.

Adding to the above, Bench stated that the said settlement conferred rights on the trade mark RADHANI in favour of the plaintiff/ director of the plaintiff. The mark has also been registered in the name of the plaintiff. Admittedly, no steps have been taken by the plaintiff for registration of the assignment of the trade mark in favour of the plaintiff. However, it was not urged before the court that it was mandatory to register the assignment in favour of the plaintiff under the Trade Marks Act.

Merely because the defendant’s trademark is not registered would not entitle the plaintiff to any interim injunction. Supreme Court’s decision in Neon Laboratories Ltd v. Medical Technologies Ltd., (2016) 2 SCC 672 was relied upon.

From the above decision of the Supreme Court, what follows is that the ‘first in the market’ test has always enjoyed pre-eminence.

The rights of a prior user will normally override those of the subsequent user even though it had been accorded registration of its trademark.

Prima facie the reliance of the defendant on documents to show the date of user of the trademark was misplaced.

In the light of the documents on record, it is difficult to, at this stage, prima facie without leading further evidence to accept the plea of the defendant that it has been using the trademark ‘Rajdhani’ since 1965 as alleged.

Prima Facie the defendant had failed to show prior user of the trademark in question.

With regard to alleged delay in approaching the Court, Bench held that delay per se may not always be sufficient to disentitle the plaintiff to grant of an interim order.

Adding to the above, Court stated that prima facie in view of the registered Memorandum of Family Settlement dated 31-03-2009 filed by the plaintiff, the plaintiff traces its user of the trademark since 1966. The plaintiff had also placed on record invoices starting from the year 2006 pertaining to the said products with the trademark in question.

Hence, High Court held that prima facie, the plaintiff was the first in the market with the trademark ‘Rajdhani’ and was the registered owner of the said trademark.

The defendant was using the trademark ‘Rajdhani’ for allied and cognate goods which was identical as that of the trademark of the plaintiff and prima facie infringing the rights of the plaintiff.

Therefore, an interim injunction was passed in favour of the plaintiff against the defendants restraining defendants its directors, proprietors, etc. from using in any manner the trademark ‘Rajdhani’ or any other trademark which is deceptively similar to the trademark of the plaintiff.

In view of the above application was disposed of. [Victoria Foods (P) Ltd. v. Rajdhani Masala Co., 2021 SCC OnLine Del 4224, decided on 1-09-2021]


Advocates before the Court:

For the Plaintiff: Dayan Krishnan, Sr. Adv. with Rohit Gandhi, Manish Singhal, Adish Srivastava and Sukrit Seth, Advs.

For the Defendants: Kapil Sibal & Chander Lall, Sr. Advs. with Ankur Singhal, Mr.Sajad Sultan and Nancy Roy, Advs.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sunil B. Shukre and Anil S. Kilor, JJ., held that mandate of Section 34 leaves a party aggrieved by the action of the Bank taken under Section 13 of the SARFAESI Act with only one forum to raise its grievance before it. This would further underline the need for any Debts Recovery Tribunal to be careful in denying urgent hearings to the parties.

Petitioner was aggrieved by the notice issued under Section 32 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), whereby two mortgaged properties creating a security interest in favour of respondent 1/Bank towards repayment of a loan granted to petitioner 2/company were put on auction sale.

Petitioners had filed an application under Section 17 of the SARFAESI Act before the Debts Recovery Tribunal, Nagpur questioning the said sale notice.

As per the sale notice, the petitioner had to pay the outstanding dues amounting to Rs 5,87, 10,380.23 together with applicable interest and costs within15 days, failing which the notice informed that the respondent 1/bank would be constrained to sell the secured assets for realization of the dues.

Further, it was noted that the petitioners did not question the said notice for its validity immediately after its receipt and almost about 25 days thereafter, chose to knock at the doors of Debts Recovery Tribunal.

Petitioner’s request for an urgent hearing was also declined by the DRT.

Right of Hearing

Contention of the petitioners was that the petitioners were being denied the right of hearing by the Debts Recovery Tribunal, the only forum available for redressal of grievances arising from the measures taken under Section 12 of the SARFAESI Act which affected the fundamental rights of the petitioners.

There is a difference between refusal to hear a matter on a particular date and refusal to hear the matter at all. 

In the present matter, DRT had not said that it would not hear the application and thus the request for grant of urgent hearing had not been altogether rejected by the DRT, Nagpur. Also, the rejection came from the Registrar of the DRT and not from the Presiding Officer of DRT.

High Court in view of the above facts and circumstances, stated that the Registrar of the Debts Recovery Tribunal, instead of taking a decision himself, ought to have placed the request for urgent hearing before the Presiding Officer of the Debts Recovery Tribunal and allowed the Presiding Officer to take appropriate decision in the matter.

Adding to the above, Bench noted that If the said auction sale was to go ahead and finalization of the sale of the properties in the auction had indeed taken place, it would have resulted into adversely affecting the rights of the petitioners even without hearing the petitioners and the further consequence would have been another grievance of violation of principles of natural justice.

High Court referred to the Supreme Court decision in Mardia Chemicals Ltd. Etc. v. Union of India, (2004) 4 SCC 311, wherein it was held that the central theme of the provisions made in the SARFAESI Act is of fairness and transparency in the procedure adopted while taking such drastic measures as taking over of the possession of the secured assets and they being sold in realization of the dues payable to the banks, without any intervention of any judicial authority.

Section 34 of the SARFAESI Act raises an embargo upon the power of the Civil Court to grant injunction in respect of any action. Taken or to be taken in pursuance of the powers conferred by under this Act or under the Recovery of Debts and Bankruptcy Act, 1993.

Opportunity of Hearing

 Court expressed that the opportunity of hearing is an integral part of our constitutional philosophy and it is well embedded in Articles 14 and 21 of the Constitution of India.

Since the Registrar of the Debts Recovery Tribunal failed to perform his duty in the matter, therefore, the order passed by him denying the hearing would have to be held as illegal.

While partly allowing the petition, Court directed the Debts Recovery Tribunal to hold an urgent hearing. [Aruna DTS Moorthy v. UCO Bank, 2021 SCC OnLine Bom 1537, decided on 30-7-2021]


Advocates before the Court:

S.S.Sanyal, Advocate for the petitioners.

Sau. Supriya Puntambekar, Advocate for respondent 1. Shri C. Deopujari, Advocate h/f Aurangabadkar, ASGI for respondent 2.

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench of Nitin Jamdar and C.V Bhadang, JJ., upheld the order of the District Court refusing to pass injunction against the use of the name “Covishield” by Serum Institute of India for its COVID-19 vaccine.

What is the subject matter of the instant appeal?

Instant appeal is with regard to the trademark ‘Covishield’.

Factual Matrix

Appellant and Respondent applied for registering the above-stated trademark and their application have been pending.

In the present suit, Cutis Biotech sought an interim injunction to restrain Serum Institute from using the trademark ‘Covishield’ and maintain the accounts regarding the sale.

The above stated interim application was rejected by the District Judge/Commercial Court, therefore, Cutis Biotech filed an appeal before this Court under Section 13 of the Commercial Court Act, 2015.

On 29th April, 2020 Cutis Biotech had filed an application for the registration of trademark ‘COVISHIELD’ under Class-5 and the same is pending and in June, 2020 the Serum Institute applied for the registration of trademark ‘Covishield’.

While rejecting the interim application, District Court held that:

The District Court considered the law on the subject and the tests required for grant of injunction in case of passing off. The District Court held that Cutis Biotech had earned no goodwill in a short time. There was no dishonest deception by Serum Institute for passing off or to divert the business of Cutis Biotech.

Analysis, Law and Decision

Bench noted that neither Cutis Biotech nor Serum Institute have a registration for the trademark ‘Covishield’, but as per Section 27(1) of the Trade Marks Act, 1999 it is mandated that no person shall be entitled to institute any proceeding to prevent or recover damages for the infringement of an unregistered trademark. Though sub-section 2 of the above provision, reserves the right to take action against any person for passing off his goods or services as the goods and services of the applicant and preserves the remedies to prevent passing off actions.

Hence in the instant case, Cutis Biotech has based its case on the action of passing off.

Ingredients to grant an injunction 

While granting an injunction in the case of passing off, both ingredients of injunction i.e. prima facie case and balance of convenience should exist in favour of the applicant.

Court must be satisfied that there are serious questions to be tried at the suit, irreparable damage will be caused to the applicant and hardship would be more to the applicant, and therefore an interim injunction is necessary.

Bench remarked that,

“foundation of passing off action is the existence of goodwill. Further as to who conceived and adopted the mark earlier is also relevant.”

 High Court found no prima facie case to be established by Cutis Biotech with respect to the prior user.

On evaluating the evidence on record, Court found that Serum Institute had coined the word ‘Covishield’ and took substantial steps towards its development and manufacture. Thus, the evidence demonstrates the prior adoption of the mark by Serum Institute. Hence, no perversity was found with the finding that Cutis Biotech cannot claim to be a prior user of ‘Covishield’.

Likelihood of deception and Whether the products of Cutis Biotech and Serum Institute are in the common field

To establish the above-stated point, actual confusion is not required to be established and a likelihood of confusion is enough to establish the ingredients of passing off.

In the present matter, a common-sense approach will have to be adopted to find out whether Serum Institute’s conduct was calculated to pass off its goods as that of the Cutis Biotech’s or at least create confusion in the mind of the customers leading to the Serum Institute benefiting at the expense of the Cutis Biotech.

Bench expressed that the vaccine ‘Covishield’ produced by Serum Institute is not available across the counter and is being administered through Government agencies. The buyer of the product ‘Covishield’ of Serum Institute is the Government of India. The administration of the vaccine is through an injection. The sale of disinfectant or hand sanitiser, though it may relate to the same field, that, health care products, cannot be said to cause confusion in the mind of average consumers.

Court remarked that, it would be too farfetched to hold that there will be confusion in the average consumers’ minds between the use of a trademark in a Government administered vaccine at designated places and over the counter sanitizer products.

Adding to the decision, Bench held that Cutis’s contention that people may buy its products of thinking they are protected against coronavirus because of the use of mark ‘Covishield’ is self-destructive and against the concept of passing off.

Cutis Biotech through its submissions could not establish a case of passing off action, whereas the High Court observed that Serum Institute claimed the ingredients of passing off action, yet it had not moved any cause for restraining Cutis Biotech for passing off action.

Regarding maintaining accounts, a direction to maintain accounts is not a routine order and cannot be issued when there is no prima facie case made out by Cutis Biotech.

Balance of Convenience

Vaccine ‘Covishield’ of Serum Institute had started being administrated from 16 January 2021. The Government of India rolled out an extensive vaccine administration programme and identified almost 300 million people for the vaccine in the first round, and the first order for 11 million doses for the ‘Covishield’ vaccine was placed. The second dose would be administered after the stipulated weeks. On 1 March 2021, a vaccination drive for those above the age of sixty and the age of forty-five years with comorbidities was launched. ‘Covishield’ vaccine of Serum Institute was supplied through the States and Union Territories.

Serum Institute has also placed on record that it has spent Rs 28 crore on the development, research and is expected to spend a further Rs 20 crore. With these facts, the balance of convenience is not in favour of Cutis Biotech.

A temporary injunction directing Serum Institute to discontinue the use of mark ‘Covishield’ for its vaccine will cause confusion and disruption in the Vaccine administration programme of the State.

 Hence, grant of an injunction would have large scale ramification traversing beyond the parties to the suit.

Scope of an Appeal

High Court observed that appellate court doesn’t generally interfere if the conclusion arrived at by the trial court is reasonably possible.

A total deference to the discretion by the trial court is not expected from the appellate court if the order is arbitrary or perverse.

 Bench held that, in the present case, discretion used by District Judge in refusing to grant an injunction was not arbitrary or perverse.[Cutis Biotech v. Serum Institute of India (P) Ltd., 2021 SCC OnLine Bom 616, decided on 20-04-2021]


Advocates before the Court:

Mr Abhinav Chandrachud and Mr Aditya Soni with Chetan Alai, Shriniwas Bade and Mr Swaraj Jadhav i/b. White & Brief Advocates & Solicitors for the Appellant.

Dr Birendra Saraf, Senior Advocate with Mr Rohan Savant, Mr Hitesh Jain, Ms Pooja Tidke, Ms Monisha Mane Bhangale and Ms Warisha Parkar i/b. Parinam Law Associates for the Respondent.

Case BriefsSupreme Court

Supreme Court: The Division Bench of Sanjay Kishan Kaul* and Hrishikesh Roy, JJ., has observed that Section 6 of Probation of Offenders Act, 1958 leaves no discretion to the Court as it provides,

“A Court ‘must not’ sentence a person under the age of 21 years to imprisonment unless sufficient reasons for the same are recorded, based on due consideration of the probation officer’s report.”

The appellants were youngsters, aged about 20 and 19 years when they attacked the complainant with dagger and knife and inflicted 11-12 injuries on his forehead, abdomen and neck. The complainant was thrown out of his taxi and the appellants fled with the taxi. In the trial, the appellants were convicted by the Trial Court and sentenced of Rigorous Imprisonment for 7 years was imposed on each of them. The instant special leave petition was filed to challenge the dismissal of their appeal against the Trial Court’s findings.

Contention before the Court was a compromise deed was arrived at between the complainant and the appellants, whereof the complainant had stated that he did not want to pursue any action against the appellants and had no objection to their release on bail or acquittal. However, counsel for the State submitted that the minimum sentence provided by the statute under Section 397 of IPC was 7 years and the same cannot be reduced below that period; to which the appellants sought benefit under Probation of Offenders Act, 1958.

Applicability of Probation of Offenders Act, 1958: Analysis

The Court observed that, statement of Objects and Reasons of the Act explain the rationale for the enactment and its amendments: to give the benefit of release of offenders on probation of good conduct instead of sentencing them to imprisonment. Thus, increasing emphasis on the reformation and rehabilitation of offenders as useful and self-reliant members of society without subjecting them to the deleterious effects of jail life is what is sought to be sub served. Section 6 of the Act, as per its own title, has provided for restrictions on imprisonment of offenders under twenty-one years of age. The said provision reads as under:

“6. Restrictions on imprisonment of offenders under twenty-one years of age.—(1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.

Reliance was placed by the Court on Masarullah v. State of Tamil Nadu, (1982) 3 SCC 485, wherein observations were made that “in case of an offender under the age of twenty one years on the date of commission of the offence, the Court is expected ordinarily to give benefit of the provisions of the Act and there is an embargo on the power of the Court to award sentence unless the Court considers otherwise, ‘having regard to the circumstances of the case including nature of the offence and the character of the offender”. The Court stated, “the underlying purpose of the provision being reformative and Section 6 being a special provision, it was enacted to prevent the confinement of young persons under 21 years of age in jail, to protect them from the pernicious influence of hardened criminals. The Bench, while citing Ishar Das v. State of Punjab, (1973) 2 SCC 65, reiterated that non-obstante clause in Section 4 of the Act reflected the legislative intent that provisions of the Act have effect notwithstanding any other law in force at that time. It was further noticed that the fact that Section 18 of the Act did not include any other such offences where a mandatory minimum sentence has been prescribed suggests that the Act may be invoked in such other offences.

The Bench concluded that the benefit of probation under the said Act was not excluded by the provisions of the mandatory minimum sentence under Section 397 of IPC. Considering the facts that the appellants had served about half of their sentence and the complainant had forgiven them, also that there was no adverse report against the appellants about their conduct in jail, the Court held, it was a fit case that the benefit of probation could be extended to the appellants. Thus, the appellants were ordered to be released on probation of good conduct on their entering into a bond with two sureties each to ensure that they maintain peace and good behaviour. [Lakhvir Singh v. State of Punjab, 2021 SCC OnLine SC 25, decided on 19-01-2021]

*Justice Sanjay Kishan Kaul has penned this judgment.


Kamini Sharma, Editorial Assistant has put this story together

Case Briefs

Calcutta High Court: A Division Bench of Harish Tandon and Hiranmay Bhattacharyya JJ., while allowing the present appeal, discusses upon the essentials of granting an injunction order in light of the settled precedents.

Background

The defendant in a suit for infringement of copyright has preferred the instant first miscellaneous appeal challenging the order dated 20-08-2020, passed by the District Judge at Alipore in Title Suit No. 6 of 2020. The facts leading to the present appeal are categorically mentioned hereunder;

  1. The author who is the appellant herein entered into a publishing and copyright agreement with the publisher being the respondent on 24-11-2017.
  2. The respondent filed a suit alleging illegal termination of the aforesaid agreement by the appellant through an e-mail dated 01-06-2020. It was further alleged that the appellant herein through her advocate’s letter dated 20-07-2020, threatened to institute legal proceedings against the respondent before the appropriate forum.
  3. The respondent further claims that the appellant herein threatened to publish the books through other publishers which compelled the respondent to pray for an order of injunction restraining the appellant from giving any effect to the e-mail dated 01-06-2020 and the letter dated 20-06-2020 by filing an application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure.
  4. The Trial Judge, by the order impugned, restrained the defendant/appellant from taking any steps pursuant to the letter dated 01-06-2020 as well as the letter dated 20-07-2020 till 25-09-2020.
  5. Being aggrieved against the aforesaid order, the instant appeal has been preferred.

 Contentions

Saptansu Basu, Senior Advocate appearing for the appellant assails the impugned order on the following grounds. Firstly, the principles laid down by Supreme Court in the case of Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC 161, has not been followed by the court below while passing the ex-parte order of injunction. Secondly, no order of injunction can be passed restraining a person from instituting a proceeding before a court of law. Lastly, the respondent may, at best, be entitled to damages in the event the court finds that the notice period as mentioned in the termination letter falls short of the required notice period as per the agreement in question. Reliance was further placed on Indian Oil Corporation Ltd. v. Amritsar Gas Service, (1991) 1 SCC 533 in support of such submission.

Aritra Basu, Advocate for the respondent submitted that the agreement dated 24-11- 2017 contains a termination clause which provides that 90 days notice is mandatory before terminating the agreement by the appellant herein. It was further submitted that since the termination letter has been issued by the appellant, in violation of the said agreement, the same cannot be given effect to and the court below was perfectly justified in passing an order of injunction. Furthermore, Section 42 of the Specific Relief Act, 1963, empowers the court to grant an injunction directing the appellant to perform the negative agreement by issuing a 90 clear days notice for termination of the agreement in the instant case even if the court is unable to compel the specific performance of the agreement. Reliance was placed on the judgment of KSL Industries v. National Textiles Corporation Limited, OMP 581 of 2010 decided on 14-08-2012 and Madras High Court judgment in Base International Holdings v. Pallava Hotels Corpn. Ltd., 1998 SCC OnLine Mad 614, so to emphasize that an order of injunction can still be passed in case the notice period mentioned in the termination notice is in violation of the termination clause mentioned in the agreement.

 Observation

The Court, identifying the crux of the matter, said that the agreement shall remain in existence, unless terminated by a specific notice of termination. The bench further remarked that, since the contract is determinable in nature therefore it cannot be specifically enforced in view of Section 14(1) of the Specific Relief Act, 1963.

 “Section 41 of the Specific Relief Act provides that an injunction cannot be granted to prevent the breach of a contract, the performance of which would not be specifically enforced. Since we are of the view that the contract in question is one, the performance of which could not be specifically enforced, the learned judge of the court below erred in law by passing an order of injunction in the instant case which would in effect amount to directing specific performance of the said agreement. Furthermore, no injunction can be passed restraining a party from instituting any proceeding in a court of law. The resultant effect of the order of injunction passed by the learned court below is a restraint upon the appellant from initiating any legal proceedings before a court of law which is not permissible in law.”

Rejecting the submission of the respondent, the Court said, “Section 42 of the Specific Relief Act operates in a totally different field and cannot be applied to the facts of the instant case. In the event the court at the time of trial is of the view that the respondent has suffered any injury due to short notice period, the respondent may be entitled to reliefs in accordance with law but that cannot be a ground for passing an order of injunction.”

With respect to the cases referred by the counsel for the Appellant, the Court agreed that the principles laid down by the Supreme Court in the case of Shiv Kumar Chadha has not been followed as the Trial Court judge did not record reasons for its opinion while passing the order of injunction. Further, it was observed that the ratio of the other two cases, namely, KSL and Base International cannot be applied in the present factual matrix as the circumstances essentially vary.

 Decision

Allowing the present appeal, the Court held that the Trial Judge below erred in law by passing an order of injunction.[Debarati Mukhopadhyay v. Book Farm, FMAT 369 of 2020 with IA No. CAN 1 of 2020 with IA No. CAN 2 of 2020]


Sakshi Shukla, Editorial Assistant ha sput this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ has held that the High Court is not obliged to frame substantial question of law, in case, it finds no error in the findings recorded by the First Appellate Court.

The Court was hearing the case relating to suit for permanent injunction wherein the High had dismissed the second appeal without framing any substantial question of law. It was contended before the Court that framing of substantial question of law is mandatory in terms of Section 100 CPC and hence, the matter should be remitted back to the High Court for determination of the substantial question of law framed by the appellants.

On this, the Court explained that Sub-section (1) of Section 100 CPC contemplates that an appeal shall lie to the High Court if it is satisfied that the case involves a substantial question of law. The substantial question of law is required to be precisely stated in the memorandum of appeal. If the High Court is satisfied that such substantial question of law is involved, it is required to formulate that question. The appeal has to be heard on the question so formulated. However, the Court has the power to hear appeal on any other substantial question of law on satisfaction of the conditions laid down in the proviso of Section 100 CPC.

Therefore, if the substantial question of law framed by the appellants are found to be arising in the case, only then the High Court is required to formulate the same for consideration. If no such question arises, it is not necessary for the High Court to frame any substantial question of law.

“The formulation of substantial question of law or reformulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law.”

It was the case of the appellants that the First Appellate Court had ordered that the question of jurisdiction of Civil Court would be decided first, however the appeal was decided without dealing with the said issue., thereby causing serious prejudice to the rights of the appellants. Similarly, the application under Order XLI Rule 27 of the Code was not decided which was again prejudicial to their rights.

The Court, however, found that such substantial questions of law did not arise for consideration. The issue of jurisdiction was not an issue of fact but of law. Therefore, it could very well be decided by the First Appellate Court while taking up the entire appeal for hearing.

It was noticed that the suit was simpliciter for injunction based upon possession of the property, hence, the said suit could be decided only by the Civil Court as there is no mechanism prescribed under the Land Revenue Act for grant of injunction in respect of disputes relating to possession. The Civil Court has plenary jurisdiction to entertain all disputes except in cases where the jurisdiction of the Civil Court is either expressly or impliedly barred in terms of Section 9 CPC. Since there is no implied or express bar of jurisdiction of the Civil Court in terms of Section 9 CPC, the Civil Court has plenary jurisdiction to decide all disputes between the parties.

Hence, it was held that the High Court did not commit any illegality in not framing any substantial question of law while dismissing the appeal filed by the appellants.

[Kirpa Ram v. Surendra Deo Gaur,  2020 SCC OnLine SC 935, decided on 16.11.2020]


*Justice Hemant Gupta has penned this judgment 

Case BriefsHigh Courts

Bombay High Court: G.S. Patel, J., refused to pass an interim injunction restraining Zee Entertainment from using the word “Plex” in its new pay-per-view channel.

Plaintiff sought restraint against the defendant’s use of the word ‘PLEX’ in an online movie channel service which was to be launched on 2-10-2020. Defendant (Zee) has a number of media channels and services including internet, OTT, DTH, Satellite, cable, etc.

On 1-10 2020, it announced its proposed launch about a month later of a ‘cinema-to-home’ pay-per-view service.

Plaintiff was represented by Tulzapurkar and claimed that it adopted this mark in May, 2008 in the United States. Further, Plex obtained international trademark registrations in several jurisdictions, but not India. It however claims that it had its first registered user in India on 23-07-2008.

Tulzapurkar, Advocate claimed that PLEX had built up a user or subscriber base of 5,50,00 users.

Bench stated it is concerned with domestic sales and these are used to provide prima facie evidence of reputation and goodwill.

Mr Tulzapurkar’s complaint is that despite the two words being used disjunctively in the actual branding Zee seems to have combined the two words into a single unit ‘ZEEPLEX’.

Court stated that the plaintiff had an objection to the use of ‘Plex’ by Zee for any service and in any manner, whether it is combined with Zee as one word or is used in conjunction with Zee as two words.

The question, therefore, is not about the use of Plex as the second of two words.

Question is whether the Plaintiff has been able to show any prima facie case in passing off.

“Passing off” is an action for damages in the tort of deceit, that is to say, deception by Zee in duping or misleading consumers as to the provenance and leading them to believe that Zee has somehow tied up with PLEX.

Plex must establish its reputation and must demonstrate that it has such brand recognition and awareness amongst even Zee’s consumers or digital consumers that such an association at least in India would readily be made.

Bench stated that it does not see sufficient material from Plex to be able to establish its reputation at least within India, whatever may be its reputation, registrations and sales in other jurisdictions.

There is musch greater reputation and standing of Zee amongst subscribers across the length and breadth of the country with a large number of channels in various languages.

Mr Dwarkadas pointed out that the word Plex was being used by Zee to specifically connote the niche or specialized service now being offered, i.e. a variety of regional and other licensed films being streamed on a pay-per-view basis to the subscribers.

To show deception and especially to show deception to obtain a quia timet injunction the Plaintiff must be able to show considerably more.

High Court stated that merely pointing to other established and reputed players in the field is not enough, and it is hardly a credible argument to say that “if Sony provides content and has a reputation, since I, too, provide content, I must be presumed to have an equivalent reputation. So if Sony could maintain such action and get an order, so must I.”

Every claimant in a passing-off action stands or falls on his own merits and case.

“…parties in IPR matters cannot expect Courts to push aside all other cases.”

Court added that it repeatedly happens, whether it is movie releases or otherwise. It must stop. It is unfair to courts and it is unfair to other litigants waiting their turn.

Where a plaintiff has had enough notice and yet chooses to move at the eleventh hour — and makes no allowance at all for any adjustment that may be required — the plaintiff must be prepared to face the consequences.

In the present matter, bench found no prima facie case.

The grant of the injunction Plex sought would cause immense and immediate financial loss and harm to Zee — it says it has already spent more than Rs 11 crores (rather more than Plex’s combined India sales for the last five years) on this new channel.

Hence, the Court found no reason to grant an ad-interim injunction. [Plex, Inc v. Zee Entertainment Enterprises Ltd., 2020 SCC OnLine Bom 989, decided on 01-10-2020]

Case BriefsHigh Courts

Bombay High Court: G.S. Patel, J., while addressing a matter with regard to domain names registrations held that,

Domain name Registrar can’t black list or block list a domain that is registered.

Endurance Domains Technology LLP, an Indian Domain Name Registrar is authorised to function by the National Internet Exchange of India.

Endurance Domains provides inter alia registrations of India-specific domains apart from other more commonly used and known top-level domains such as .com, .net, etc.

Plaintiff, HUL has a registration of a number of valuable trademarks covering a range of products. Plaintiff has the domain name www.hul.co.in. Its global parent is www.unilever.com.

Fake and fraudulent domain names

Defendant 5 and various person and persons unknown have been using variants of HUL’s domain name to register fake and fraudulent domain names and to set up websites. The purpose is to entice and lure the unsuspecting public into parting with significant amounts of money on a completely false promise of being made authorised dealers of HUL products.

Number of fraudulent domain names have been pointed out in the present Interim Application and the said domains name registration have been effected through — Endurance Domains, GoDaddy or Porkbun.

Court stated that it has no doubt that the registration of the said domains is entirely malafide, not in good faith, constitutes an infringement of Plaintiff’s valuable statutory rights.

What form the injunction should take?

Bench stated that, domain names are, typically, never ‘owned’. They are always registered for a fee and for a specified time, typically a one-year minimum. 

There is no human element involved in overseeing or assessing the legitimacy of any chosen domain name. Once the domain name is registered, it must point somewhere to be effective.

A domain name may have its registration suspended, but the domain name registrar cannot ‘block access’ to that domain name.

Dr Saraf stated that Endurance Domains has already substantially complied with the request by HUL in respect of domain name listed, if not, it will do so at the earliest.

Blocking Access

An ‘access blocking’ instructions only serves to block access to a remote website or server (possibly overseas) from an IP address of domestic origin, i.e. from the country ordering the block. Any such ‘block’ is easily circumvented by masking the originating country IP of the user.

Bench stated that, other than lulling an applicant into a completely hollow and faux sense of safety (and conceivably giving some ill-informed government functionary an entirely unwarranted sense of power or authority), blocking access achieves next to nothing.

To ask for the ‘continued suspension’ of domain name registration is also technically incorrect: High Court

Any domain name Registrar can always suspend a domain that is registered, but they can’t put it on a black list or block list.

Hence, a ‘continued suspension’ is therefore not possible or practicable at least in the current technology.

Further, Mr Tulzapurkar on behalf of the plaintiff says that the Plaintiff cannot be expected to constantly make applications every time a new domain name is discovered.

Court for the above stated that, 

I do not see why not. The Plaintiff is not short of resources and skills, even in the legal department; and the Plaintiff is a well-known and well-established litigant.

Another important observation

I do not think it is for any court to come up with mechanisms to protect the Plaintiff’s interest at low or no cost, or by turning a plaintiff into judge, jury and executioner, let alone sub-contracting out what I believe to be a serious judicial function of assessing and balancing rival merits. What should or should not be suspended (or blocked) is for a government to decide, not some litigant. There are no shortcuts. All this: prima facie; two mantra words that seem to have become some sort of balm in the frenzied jurisprudence of interim and ad interim litigation.

Court’s Time

Court permitted HUL as an exceptional case, if it is unable to get the negotiated relief directly from one of the domain name registrars who are already parties to suit, to file an Affidavit listing the domain names in questions and to approach the Court after serving a copy of that affidavit on the domain name registrar in question.

I am doing away only with the requirement of a formal IA, not the requirement of coming to Court; and this is only done to ease the burden on the Court. This part of the order is, obviously, liable to be reviewed, modified or recalled at any time.

[Hindustan Unilever Limited v. Endurance Domains Technology LLP, 2020 SCC OnLine Bom 809 , decided on 12-06-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Manmohan and Sanjeev Narula, JJ., held that neither the finding of judicial adventurism nor imposing costs of Rs 5 lacs is warranted against INOX Leisure Limited.

Issue

The present appeal was filed to challenge the final Judgment and Order passed on 18th May, 2020 wherein the appellant-plaintiff’s suit was dismissed at the pre-trial stage.

Senior Counsel for the appellant-plaintiff, Amit Sibal submitted that the impugned order had erroneously imposed the cost of Rs 5 Lakhs upon the appellant-plaintiff, even when, concept of tortious inducement/ interference of binding agreements is known to constitute a cause of action to file a suit for injunction.

Further he contended that the Single judge had erroneously held that appellant-plaintiff indulged in ‘judicial adventurism’ inasmuch as the said expression is used in respect of judicial overreach by a judicial authority and same cannot be attributed to a litigant.

He lastly submitted that a coordinate Division Bench of this Court in Amazon Seller Services Pvt. Ltd. v. Modicare Ltd., FAO (OS) No. 135/2019 decided on 31st January, 2020 — held that an action for tortiuous interference is a matter of evidence.

Counsel for the respondent-defendant submitted that appellant-plaintiff by filing the present suit cannot seek waiver of cost as well as expunction of the ‘judicial adventurism’ remark.

Court’s Opinion

High Court stated that no plea of tortiuous inducement/ interference of binding agreement is made out in the present suit, yet the concept was well-known in law to constitute a cause of action to file a suit for damages/injunction.

Thus, agreeing with the decision in Modicare Ltd. v. Gautam Bali, 2019 SCC OnLine Del 10511 Court  held that Single Judge did not dismiss the present suit on the ground of suppression of material facts or on the ground that the appellant-plaintiff had filed parallel or multiple proceedings on the same cause of action.

“..neither the finding of ‘judicial adventurism’ nor the imposition of costs is warranted in the present case.”

Hence, the present appeal and application was disposed in view of the aforesaid modification. [INOX Leisure Ltd. v. PVR Ltd., 2020 SCC OnLine Del 673, decided on 24-06-2020]

Case BriefsCOVID 19High Courts

Delhi High Court: Rajiv Shakdher, J. granted injunction relief to the manufacturer of “Corona Beer” while injuncting the defendants from:

reproducing, broadcasting, communicating to the public, screening, publishing and distributing the impugned advertisement (which likens the plaintiff’s product with Coronavirus) on any media or platform including the social media platforms.

Plaintiff is the manufacture of a beer with the registered trademark “CORONA” with a world wide reputation.

The defendant was engaged by the plaintiff as its distributor for the National Capital Territory of Delhi.

Pravin Anand, Advocate who appeared on behalf of the plaintiff informed the Court that the distributorship agreement spanned between 2014-2015.

Grievance of the petitioner

Defendant has taken out advertisements on the social media platform i.e. Facebook which likens the plaintiff’s product with Coronavirus.

Court’s Analysis

Bench stated that the plaintiff has been able to set up a prima facie case in its favour qua disparagement.

Balance of convenience also appears to be in favour of the plaintiff given the extent and nature of its market qua the aforementioned product.

Thus, while issuing summons in the suit and notice, defendant, its employees, agents, officers, affiliated entities and all others acting for and on its behalf are injuncted from reproducing, broadcasting, communicating to the public, screening, publishing and distributing the impugned advertisement on any media or platform including the social media platforms till the next date of hearing.

Matter to be re-notified on 22-07-2020. [Cerveciria Modelo De Mexico, S. De R.L. De C.V. v. Whiskin Spirits (P) Ltd., 2020 SCC OnLine Del 665 , decided on 22-06-2020]

Case BriefsForeign Courts

United States District Court, Columbia: Royce C. Lamberth, J., held that, a mandated pre-publication review process is not an unconstitutional prior restraint.

Bolton has gambled with national security of USA.

Background

John Bolton in the year 2018 had accepted the role as a National Security Advisor and was responsible for directing and supervising the work of National Security Council staff on behalf of the president.

Further in the Year 2019, when he left his post he secured a book deal with publisher Simon and Schuster.

Bolton had accepted the certain conditions in his employment and executed multiple non-disclosure agreements with the government.

In one agreement, Bolton agreed that he would “never divulge classified information to anyone unless: (a) he has officially verified that the recipient has been properly authorized by the United States Government to receive it; or (b) he has been given prior written notice of authorization from the United States Government . . . that such disclosure is permitted.”

In the event Bolton was “uncertain about the classification status of information, [he was] required to confirm from an authorized official that the information is unclassified before he may disclose it.

Violation of the above could result in assigning to the US Government all royalties, remunerations and emoluments.

On June 8, 2020, John Eisenberg, Deputy White House Counsel and Legal Advisor to the NSC, issued a letter to Bolton that claimed the manuscript of the book contained classified information. By that point, Bolton had already delivered a final manuscript to his publisher for printing and shipping, without written authorization and without notice to the government.

What is the government asking this Court to do about the above-stated issue?

Government seeks a Temporary Restraining Order or Preliminary Injunction that would:

  1. Enjoin Bolton from “proceeding with the publication of his book in any form or media without first obtaining written authorization from the United States through the prepublication review process;”
  2. Require Bolton to “ensure that his publisher and resellers receive notice that the book contains classified information that he was not authorized to disclose;”
  3. Require Bolton to “instruct his publisher to delay the release date of the book pending the completion of the prepublication review process and authorization from the United States that no classified information remains in the book;”
  4. Require Bolton to “instruct his publisher to take any and all available steps to retrieve and destroy any copies of the book that may be in the possession of any third party;”
  5. Enjoin Bolton from “taking any additional steps towards publicly disclosing classified information without first obtaining authorization from the United States through the prepublication review process;” and
  6. Require Bolton to “ensure that his publisher and resellers receive notice of the injunction.”

Bolton was the National Security Advisor to the President. He was entrusted with countless national secrets and privy to countless sensitive dealings.

To Bolton, this is a selling point: His book is entitled The Room Where It Happened.

He rushed to write an account of his behind-closed-doors experiences and produced over 500 pages of manuscript for review. Not four months later, Bolton pulled the plug on the process and sent the still-under-review manuscript to the publisher for printing.

Many Americans are unable to renew their passports within 4 months,  but Bolton complains that reviewing hundreds of pages of a National Security Advisor’s tell-all deserves a swifter timetable.

Access to sensitive intelligence is rarely consolidated in individuals, and it comes as no surprise to the Court that the government requested several iterations of review headed by multiple officers. But what is reasonable to the Court was intolerable to Bolton, and he proceeded to publication without so much as an email notifying the government.

Court further added that the NDA’s signed by Bolton barred publication of classified material but he likely published materials.

Government also argued that an injunction would atleast prevent any further spread of the book, such as limiting its audiobook release.

But for the said argument, Court stated that it is unavailing, Bolton has without securing final approval from national intelligence authorities published his book and may indeed have caused irreparable harm to the country.

With hundreds of thousands of copies around the globe—many in newsrooms—the damage is done. There is no restoring the status quo.

Hence, Court while concluding and denying the motion held that,

“.. Bolton has gambled with the national security of the United State and has exposed his country to harm and himself to civil and potentially criminal liability. “

The above facts do not control the motion before the Court and government has failed to establish that an injunction will prevent irreparable harm. [ U.S.A v. John R. Bolton, Case No. 1:20-cv-1580(RCL), decided on 20-06-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Ajay Mohan Goel, J. entertained a writ petition filed under Article 227 of the Constitution of India, where the petitioner had challenged the order passed by the Civil Judge, where the application for appointment of a Revenue Officer as a Local Commissioner under Order 26 Rule 9 CPC was allowed.

Brief facts necessary for the adjudication of the case were, that the respondent/plaintiff had filed a suit against the petitioners/defendants for a decree of an injunction for restraining the defendants from raising any construction, dispossessing, interfering, cutting, felling and removing the trees standing upon the suit land. In an alternative suit, the plaintiff had also prayed for possession of the said suit property. Subsequently, during the pendency of the said suit, the plaintiff had filed an application under Order 26 Rule 9 of the Code for appointment of any Revenue Officer as Local Commissioner for locating the exact nature and extent of encroachment by the defendants and fixing boundaries of the suit land.

The counsel for the plaintiff averred in the application that the parties had strained relation with each other; despite a status quo order was passed, the defendants interfered in the suit land, and they also encroached upon the suit land, hence appointment of a Local Commissioner was necessary for locating the exact nature and extent of encroachment by the defendants.

On the contrary, the counsel for the defendants resisted the application and submitted that it was always open to the plaintiff to have had approached the Revenue Authorities for getting the land demarcated and the Court was not to create evidence for either of the parties. It was further the case of the defendants that they were not interfering in the suit land nor they had any intention to do so and they were in possession of their property pursuant to the recent partition having entered into between the parties and the plaintiff was stopped from filing the application. It was denied by the defendants that they were encroaching upon the suit land, as alleged.

Trial Court allowed the application and held, that as issues were not yet framed in the main suit and as proceedings in the case were at a preliminary stage, therefore, if a Local Commissioner in the case was appointed, no prejudice was to be caused to the defendants, rather it was a help in the proper and final adjudication of the dispute between the parties.

But the defendant was not satisfied by the order of the Trial Court, hence, filed the instant petition, it was argued that the order was not sustainable in the eyes of law as was passed in hot haste as the issues were not framed. It was further argued that there was no necessity of such an application being entertained by the learned Trial Court because it was just a mere allegation of the plaintiff that the suit land stood encroached upon by the defendants, onus was upon him to prove the same and it was not for the Court to create evidence in favour of the plaintiff.

The Court contemplated the arguments of the parties and thus, observed that Order 26 Rule 9 of the Code, inter alia, provided that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit directing him to, make such investigation and to report thereon to the Court. Meaning thereby that it has to be the satisfaction of the Court that a local investigation is necessary or proper for the purpose of elucidating any matter in dispute. Hence the Court held that, “This provision is not a tool which is to be permitted to be used by the parties concerned to create evidence in their favour. This important aspect of the matter has also been lost sight of by the learned Trial Court while passing the impugned order.” Hence the order for appointing a Local Commissioner was set aside.[Naseeb Deen v. Harnek Singh, 2019 SCC OnLine HP 1034, decided on 19-07-2019]

Case BriefsHigh Courts

Madras High Court: M. Govindaraj, J. disposed of a civil miscellaneous appeal, giving the appellant liberty to approach the trial court with appropriate application to vacate the injunction.

The present appeal was filed against the order of Principal District Judge granting an ex-parte injunction, wherein the appellant was directed not to supply the subject material other than to the respondent till the disposal of the suit. After receipt of the order, without approaching the trial court, the appellant preferred the present appeal directly.

The High Court was of the view that the appeal did not disclose any extraordinary circumstance or irreparable loss warranting interference. It was observed: “Normally this Court does not interfere with the discretionary power exercised by the Court unless it is fainted with the arbitrary exercise of such power, patently illegal or capricious. The appellant cannot approach this Court without exhausting the effective remedy available to him.”

Therefore, without going into merits, the Court disposed of the appeal by giving liberty to the appellant to approach the trial court with appropriate application to vacate the injunction.[Selva Spinners (P) Ltd. v. Liberty Clothing Co., 2019 SCC OnLine Mad 1515, decided on 16-04-2019]

Case BriefsHigh Courts

Delhi High Court: Pratibha Singh, J., while allowing the suit brought by Sun Pharma Laboratories Ltd., passed an order injuncting Ajanta Pharma Ltd. from selling any medicinal preparations, nutritional food supplements or any other preparations for human consumption for treating any illnesses or diseases under the trademark GLOTAB or any other mark identical or deceptively similar to the Sun Pharma’s mark GLOEYE.

The dispute between the plaintiff and the defendant was is in respect of two products used by patients of the age-related dimness of vision and diabetic retinopathy. They are sold under the trademarks GLOEYE and GLOTAB, respectively. Both are ocular medicines. Since they contain plant extracts, they are termed as “nutraceuticals” under Section 22 of the Food Safety and Standards Act, 2006.

Plaintiff’s case was that it commenced use of the mark GLOEYE in July 2005 and it was their registered mark. The defendant was also using the mark GLOTAB for the same purpose, i.e. medicine used by patients for the age-related dimness of vision and diabetic retinopathy. Incidentally, defendants mark was also a registered mark. The defendant was using the said trade mark since 2013. The plaintiff filed the present suit for an interim injunction.

Since both the trademarks were registered, the case for infringement of trademark could have been maintainable; thus,  the suit proceeded on the principles of “passing off”, as recognised under Section 27(2) of the Trade Marks Act, 1999. The High Court considered the question — is the test for infringement and passing off for nutraceutical products the same as the test applicable for pharmaceuticals?

Kapil Wadhwa, Devyati Nath and Deepika Pokharia, Advocates representing Sun Pharma, submitted that it was a clear prior user of the said mark by atleast 8 years. Mr Wadhwa submitted that the fact that the composition of two products is different enhances the chances of confusion, especially in products that are consumed for the same ailments. Per contra, Senior Advocate Sandeep Sethi, Jayant Mehta, Afzal B. Khan and Suhrita Majundar, Advocates appearing for Ajanta Pharma, resisted the suit. Mr Mehta submitted that both the products are prescription drugs, and the prefix ‘GLO’ is common to the trade. In addition, Mr Sethi submitted that since there had been no confusion for the last 6 years, this was not a case for grant of interim injunction.

The High Court found that nutritional food supplements and nutraceuticals are akin to medicines and pharmaceutical preparations. Reliance was placed on Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., (2001) 5 SCC 73 for the proposition that — “in respect of medicines and pharmaceuticals deception and confusion need to be avoided.”

Holding that the tests laid down in Cadila case were fully applicable to the present case, the Court observed: “the mere fact that these products are nutritional food supplements or nutraceuticals and are not pharmaceuticals in the strict sense is not convincing enough for adoption of a less stringent test … The mere fact nutraceuticals are termed so, as they contain ingredients derived from plants, does not mean that a lenient test needs to be adopted in respect of these products. The effects of the products and the consumers of the products all being similar in nature, the test applicable to pharmaceutical products would be applicable even to nutraceuticals. The Court, thus, rejected the defendant’s contention that the decision in Cadila case was not applicable.

Comparing the two products, the Court found that while both products are used for similar medical conditions and are anti-oxidant retinopathy drugs, there are marked differences between the two products. The Court was of the view that the two products were used for treating similar medical conditions, and it was not possible to accept the defendant’s explanation that it was a bona fide adopted of the mark GLOTAB. Moreover, the following were the factors which persuaded the Court to hold that the defendant’s mark was deceptively similar to that of the plaintiff’s mark:

a) ‘GLOTAB’ and ‘GLOEYE’ have the same prominent prefix, namely, ‘GLO’;

b) The Plaintiff’s product ‘GLOEYE’ is a tablet. ‘TAB’ is nothing but a short form for ‘tablet’;

c) The composition of these two products is different though both are ocular medicines.

d) The suffixes ‘EYE’ and ‘TAB’ in fact do not sufficiently distinguish the two products – and in fact, enhance the chances of confusion;

e) Both are nutritional food supplements. Both contain bilberry extract, but the remaining ingredients are different;

f) The chances of ‘GLOTAB’ being prescribed in place of ‘GLOEYE’ or a patient being dispensed with ‘GLOTAB’ in place of ‘GLOEYE? is quite high and cannot be eliminated

It was also observed that: “the settled law in passing off is that of probability or likelihood of confusion and not actual confusion. In Cadila, the Supreme Court has warned that in case of products used for the same ailments but with different composition, a more stringent test needs to be adopted.”

Holding that the nutraceuticals ought to be treated on par with pharmaceuticals, and applying the principles laid down in Cadila case, the Court held that Sun Pharma was entitled to an interim injunction. For all the above reasons, Ajanta Pharma was restrained as already mentioned above. Since Ajanta Pharma’s manufacturing license was of 2013, it was permitted to sell existing stock of its products and packaging under the mark GLOTAB subject to filing quarterly accounts of the same.[Sun Pharma Laboratories Ltd. v. Ajanta Pharma Ltd., 2019 SCC OnLine Del 8443, decided on 10-05-2019]

Case BriefsHigh Courts

Uttaranchal High Court: The Bench of Ramesh Ranganathan, C.J. and N.S. Dhanik, J. dismissed a writ petition seeking changes in road alignment and to issue mandamus commanding and directing the respondent to construct the road as per the old survey, the petition further wanted an injunction against the respondent against peaceful possession of irrigated land of the villagers.

The aggrieved petitioner claimed to be a farmer and a duly elected Gram Pradhan of the village. He contended that the roads earlier sanctioned, passed through the Village Panchayat Chamaswada, which would have benefited around 500 families and now the respondent State had shifted the route which now passes through a different village, thereby affected the interests of individuals (villagers). He further contended that Right under Article 300-A of the Constitution, has been violated as per the new layout plan. It drastically affected the interest of several private landholders and they will not get adequate compensation according to Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

The Court opinioned that, petitioner being a Gram Pradhan had a duty towards the people and in any case of grievance may put forward the case to State Government. In this particular case where the main issue was ‘where road should be laid’? or ‘whether the alignment of road should be continued’? is to be decided by Executive and it is out of the purview of Courts to adjudicate upon.

The Court further observed that, all such matters are of Executive realm and even under Article 226 of the Constitution; Courts don’t have the power to take over the functions allocated to Executives and the State agencies. Answering to the issue aforementioned related to violation of private rights of individuals, the Court held, “Needless to state that it is always open to the land-owners, who are aggrieved by the action of the Government in laying a road over their lands, to invoke the jurisdiction of this Court. Leaving it open to those land-owners, who may be aggrieved by the exercise undertaken by the respondents of laying a road without acquisition of their lands, to avail their judicial remedies.” Hence, the writ was dismissed as the petitioner had no locus standi in the relevant issue raised.[Bharat Singh v. State of Uttrakhand, 2019 SCC OnLine Utt 348, Order dated 2-05-2019]

Case BriefsHigh Courts

Bombay High Court: The Division Bench comprising of B.R. Gavai and Riyaz I. Chagla, JJ. partly allowed an appeal filed against the judgment allowing notice of motion restraining appellant from inter alia (i) telecasting or broadcasting or otherwise howsoever communicating to the public or publishing two Television Commercials (impugned TVCs) or any part thereof or any other advertisement of a similar nature in any language or in any manner causing the impugned TVCs or any part thereof or any other advertisement of a similar nature to be telecast or broadcast or communicated to the public or published in any manner and (ii) disparaging or denigrating the plaintiff’s KWALITY WALL’S products or the plaintiff’s business in any manner whatsoever.

Factual matrix of the case states that, plaintiff-Hindustan Unilever Limited (HUL) are one of India’s well-known and reputed company in the FMCG sector. Plaintiff states that “KWALITY” has been a well recognised brand in India, having been in the market for over 70 years and was acquired by the plaintiff before entering into the business of ice creams and desserts in India and KWALITY has been used along with plaintiff’s own global brand WALL’S as KWALITY WALL’S.

“KWALITY” enjoys a special status in the eye of public being a very popular trade mark.

Plaintiff’s state that the two impugned Television Commercials (TVCs) advertised by defendant 1 and 2 had an effect of disparaging the frozen desserts, majority of which are manufactured and marketed by the plaintiff. In the said TVCs, it is shown that the product of Defendant 1 is manufactured by using 100% milk whereas frozen desserts are manufactured by using Vanaspati. The point of concern placed by the plaintiff is that Vanaspati is considered to be having bad effects on the health of the consumers and plaintiff is not using Vanaspati, in fact it uses edible vegetable oil in its products. Further, the plaintiff has stated that as far as frozen desserts are concerned, they contain a small amount of edible vegetable oil. However, the impugned TVCs depict that frozen desserts contain 100% Vanaspati oil. The said TVCs are not permissible in law.

Defendants stand:

According to the defendants, the advertisements did not show product of the plaintiff, however only a comparison between the product of the defendants and the frozen desserts. The contention of the defendants was that at least 30% of the manufacturers of the frozen desserts use Vanaspati.

Learned Single Judge’s decision:

It had granted an order of injunction, due to which the aggrieved filed the present appeal.

Detailed contentions of the parties:

Learned Counsel Mr Kadam on behalf of Appellant/Defendant 1 stated that as far as the first TVC was concerned, the word used by the defendants was ‘Vanaspati’, and since plaintiff had an objection to use the word ‘Vanaspati’, the same was omitted in subsequent advertisement with the word ‘Vanaspati tel’ meaning ‘edible vegetable oil’.

Perusal of the complaint made by the plaintiff to ASCI i.e. Advertisement Standard Council of India would show that the objectionable word for them was ‘Vanaspati’. Therefore, it was submitted that defendants omitted the word ‘Vanaspati’ and substituted the same with ‘Vanaspati tel’, which is in fact used by the plaintiff in its product, the grievance could not survive. To determine whether a particular TVC disparages the product, Court needs to apply the “test of an ordinary person with reasonable intelligence”, but the procedure adopted by learned Single Judge was not permissible in law.

“While considering the advertisement, rival is not expected to be hypersensitive to the advertisement.”

Injunction passed also bars the appellant from even airing similar advertisement without defining the scope thereof. At the most, injunction passed should have been in respect of the TVCs which were impugned in the suit. It has been stated that the learned Single Judge has gone far ahead and granted injunction in the widest possible terms.

Counsel for the respondent Mr Chinoy stated that if TVCs are seen in its entirety, the impression that the ordinary person with reasonable intelligence would get is that, the product of the appellant is manufactured by using only milk whereas, frozen dessert, in which market, the Respondent 1/plaintiff holds majority shares, is manufactured by using ‘Vanaspati’. Further, it was stated that, “Insofar as puffing up of the product of the appellant is concerned, nobody could have objection, even if an untrue statement is made. However, the advertisement carrying the message which disparages the product of the competitors, would not be permissible in law.”

The present appeal is an appeal against the grant of injunction in favour of the plaintiff.

Decision of the High Court in the instant matter with in-depth analysis on the aspect of ‘disparagement’:

The bench stated that first impression upon seeing the advertisement one would get is that the product of the appellant, ice cream is manufactured by using 100% milk, whereas frozen desserts are manufactured by using 100% Vanaspati or Vanaspati tel.

“For deciding the question of disparagement, Court will have to take into consideration intent of the commercial, manner of the commercial and storyline of the commercial and the message sought to be conveyed by the commercial.”

Further, it was noted that it is clear on perusal of the TVCs that the manner in which the advertisement is aired, message that is sought to be given is that the frozen desserts are manufactured by using only Vanaspati tel which is harmful for the health. Therefore, the appellant cannot be permitted to air the advertisement which disparages the product of its competitors.

“While hyped-up advertising may be permissible, it cannot transgress the grey areas of permissible assertion, and if it does so, the advertiser must have reasonable factual basis for the assertion so made.”

Bench opined that the view taken by the learned single judge bench stating the TVCs to be disparaging in nature requires no interference. Though blanket injunction is not required as the entire TVC is not of objectionable nature. The appeal was thus partly allowed. [Gujarat Co-Operative Milk Marketing Federation Ltd. v. Hindustan Unilever Ltd., 2018 SCC OnLine Bom 7265, decided on 13-12-2018]