Newsletter ARBITRATION AND CONCILIATION ACT, 1996 MARCH, 2022 WHETHER IN THE EVENT OF A CONFLICT BETWEEN THE BIHAR PUBLIC WORKS CONTRACT DISPUTES ARBITRATION TRIBUNAL ACT, 2008 WITH THE ARBITRATION AND CONCILIATION ACT,1996, THE FORMER WILL PREVAIL OVER THE LATTER? Recently, the Supreme Court in Bihar Industrial Area Development Authority v. Rama Kant Singh , observed that in the event of a conflict between the provisions of Bihar Public Works Contract Disputes Arbitration Tribunal Act,2008 (hereinafter referred to as the “2008 Act”) with the provisions of the Arbitration and Conciliation Act,1996, the provisions of the former shall prevail. The division bench of the Hon’ble Supreme Court comprising of Justice Ajay Rastogi and Justice Abhay S. Oka in an appeal filed by the aggrieved parties noted that Section 22 of the 2008 Act comprises of the Non-Obstante Clause which states that notwithstanding anything contained in any other law, rule, order, scheme, or contract, any dispute as defined under sub section (e) of Section 2 shall be regulated by the   provisions   of   the   2008   Act   in   the   absence   of   an arbitration clause in the agreement. The Hon’ble Court further noted that Section 8 of the Act states that if any of the provisions of the 2008 Act are in conflict with the Arbitration and Conciliation Act,1996, the latter shall prevail over the former. It was thus, concluded that the Arbitration and Conciliation act of 1996 shall prevail over the Local Law.  However, since there is no arbitration agreement governing the parties, the Court concluded that the reference to the Arbitration Tribunal will be governed by the 2008 Act. It was further observed that Article 137 of the schedule of the Arbitration and Conciliation Act,1996 will have no application. Read More... INTELLECTUAL PROPERTY RIGHTS WHETHER AN ORDER CAN BE PASSED FOR BLOCKING WEBSITES INFRINGING TRADEMARKS? Recently, the Delhi Court in Dabur India Ltd. v. Ashok Kumar & others while granting an interim relief to the plaintiff has passed a direction for the blocking of certain websites which were found to be operating by illegally using ‘DABUR’ domain name. A single judge bench comprising of Justice Pratibha M Singh observed that a prima facie case for the grant of injunction had been made out by Dabur India Ltd. with the balance convenience being in its favour. The Court while passing a John Doe Order stated that the practice of hiding or masking the details of registrants who hold the domain names results in an impingement upon the owners of trademarks and names. She further noted that “disabling of privacy protect feature may be essential to ensure that the identity of the persons registering domain names is clearly visible on the https://www.whois.com database, as also other such databases." The Court while dealing with the applications under Order XXXIX Rule 1 and 2 acknowledged the popularity and the goodwill of the brand in its area of operation. It further held that resorting to such practices might be detrimental to interests of the general public and also small businesses. On the basis of the aforementioned observations, the Court passed a John Doe direction for immediately blocking the domain name and pulling down the websites using the said domain name. It further restrained the defendant from  allowing any third-party, apart from the Plaintiff, from registering domain names using the mark/name 'DABUR'. Read More... WHETHER AN EX-PARTE INJUNCTION CAN BE GRANTED FOR INFRINGEMENT OF COMMON LAW RIGHTS IN A TRADEMARK INFRINGEMENT SUIT? Recently the Delhi High Court in Aktiebolaget Volvo & Ors. V. Lamina Suspension Products Limited while granting an interim relief to the owners of registered trademarks Volvo and FMX restrained Lamina Suspension Products Limited from using any trademark similar to the trademarks of Volvo and FMX in relation to leaf springs and other parts used in the heavy vehicles or other goods or services. This is also applicable to its websites, social media accounts and other third party websites. A single judge bench comprising of Justice Jyoti Singh while granting the ex-parte ad interim injunction to the plaintiffs made the observation that a prima facie case for the grant of injunction has been made out by the plaintiffs and that the balance of convenience too rests in its favour. The Hon’ble Bench further observed that the act of the defendant of using a mark similar to the trademark of the plaintiffs results in an infringement of the statutory and common law rights of the plaintiff. The Defendants have been further  restrained from disposing off or dealing with its assets in any manner which might me detriment to the Plaintiff’s ability to recover costs and damages or other pecuniary remedies. Read More... INSOLVENCY AND BANKRUPTCY CODE, 2016 WHETHER FAILURE TO REPLY TO DEMAND NOTICE U/S 8(1) WITHIN 10 DAYS OF ITS RECIPT PRECLUDES THE CORPORATE DEBTOR FROM RAISING THE EXISTENCE OF A DISPUTE IN A SECTION 9 APPLICATION? Recently, the NCLAT Principal Bench comprising of Justice Ashok Bhushan, and Dr. Alok Srivastava, Technical Member, in the case of M/s. Brand Realty Services Ltd. v. M/s. Sir John Bakeries India Pvt. Ltd. observed that the mere fact that the Corporate Debtor failed to file a reply to the demand notice by the Operational Creditor u/s 8(1)does not debar or per se preclude the Corporate Debtor from bringing evidence on record to raise the issue of a pre existing dispute and to further seek an order for setting aside an application u/s 9 of IBC. The issue under consideration was whether the fact that the corporate debtor did not file its reply within 10 days from the date of receipt of the notice under section 8 preclude the corporate debtor from raising the issue of a pre existing dispute. On an analysis of the provisions of the Code, it was found that section 8(2) of the Code states that a Corporate Debtor is required to file its reply within 10 days of the receipt of the notice and to bring to the notice of the Operational Creditor the existence of a pre existing dispute. In an event of failure by the Corporate Debtor to file a reply, Section 9(1) empowers the Operational creditor to initiate a CIRP against the Corporate Debtor. However, there is nothing in the Code which indicates that the fact that the corporate debtor did not file its reply within 10 days from the date of receipt of the notice under section 8(1) precludes the corporate debtor from raising the issue of a pre existing dispute. Placing reliance on the judgement titled Neeraj Jain Vs. Cloudwalker Streaming Technologies Private Limited (Company Appeal (AT) Ins. No. 1354 of 2019, the NCLT held that mere fact that reply to notice under Section 8 (1) having not been given within 10 days or no reply to demand notice having been filed by the Corporate Debtor does not preclude the Corporate Debtor to bring relevant materials before the Adjudicating Authority to establish that there are pre-existing dispute which may lead to the rejection of Section 9 application. On the basis of the aforementioned observation, the tribunal set aside the order of the Adjudicating Authority and remitted the case back for fresh consideration. Read More... WHETHER JOURNAL ENTRIES CAN BE SOLELY RELIED UPON TO PROVE THAT THE AMOUNT CLAIMED FALLS WITHIN THE AMBIT OF OPERATIONAL DEBT AS DEFINED IN SECTION 5(21) OF THE IBC? Recently, the National Company Law Appellate Tribunal, in G.L Engineering Industries Pvt. Ltd. Vs Supreme Engineering Ltd. observed that journal entries not supported by any other additional evidence cannot be solely relied upon to prove that the amount claimed solely falls within the ambit of the definition of operational debt as defined in section 5(21) of the IBC. Hence, mere journal entries are not considered sufficient evidence to prove that the Operational Debt is due and payable. Read More... WHETHER A JOINT DEVELOPMENT AGREEMENT BETWEEN A LESEE AND CORPORATE DEBTOR IS VALID? Recently, the National Company Law Appellate Tribunal, New Delhi dismissed the appeal preferred by New Okhla Industrial Development Authority (NOIDA) in  New Okhla Industrial Development Authority  Vs Nilesh Sharma and others against the order of the NCLT, Delhi Bench. The order of the NCLT directed NOIDA to lodge its due claim with the Resolution Professional and to participate in Corporate Insolvency Resolution Process (hereinafter referred to as “CIRP”) through a duly authorised professional and attend all future CoC meetings participate in the discussions/negotiations on the Resolution Plans submitted by prospective Resolution Applicants, and give consent to the Resolution Plan sought to be approved by the CoC. In the present case, land was allotted by NOIDA to Logix, by a lease deed for purpose of developing a group housing project. Thereafter, Logix entered into a Joint Development Agreement (hereinafter referred to as, “JDA”) with a Corporate Debtor for developing the project.  The CIRP was initiated after the Corporate Debtor had completed 80% of the work allotted to him. On the commencement of the CIRP, NOIDA refused to acknowledge the Corporate Debtor as a lawful allottee on the ground that the JDA had been entered into by Logix with the Corporate Debtor without seeking the permission of NOIDA. The Hon’ble NCLAT bench comprising of Justice Anant Bijay Singh(Judicial Member) and Ms. Shreesha Merla (Technical Member) observed that the fact that the project is registered under the UPRERA is proof that NOIDA had knowledge of the project being developed by the Corporate Debtor as under section4 (2) (c) of the RERA Act since it is impossible to register the  project without seeking NOIDA’s permission. Upon a perusal of the terms of the JDA, it is further understood that the JDA is not in conflict with the provisions of the original lease deed and is hence, valid. It was noted by the Tribunal that the CIRP being a time bound process and the interests of the Homebuyers being of paramount importance, the appeal needs to be dismissed. Reliance was placed on the judgement of ‘Ebix Singapore Pvt. Ltd.’ in order to reach the aforementioned conclusion. Read More... The Code of Criminal Procedure, 1973 WHETHER EVIDENCE OF WITNESSES CAN BE DISCARDED ON THE GROUND THAT THEY WERE RELATIVES OF THE DECEASED VICTIM? Recently, the Hon’ble Supreme Court in M. Nageswara Reddy vs State of Andhra Pradesh observed that the mere fact that the witnesses were relatives of the deceased cannot be a ground for discarding their evidence. The appeal arose from a judgement of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh by which the conviction of three accused convicted under sections 148 and 302 IPC was reversed on the ground that the relatives of the deceased were planted witnesses. The division bench of the Hon’ble Supreme Court comprising of Justices MR Shah and BV Nagarathna noted that the High court had erred in discarding the evidence merely on the ground that the witnesses were relatives of the deceased. It was further added that the High Court had attached unnecessary weightage to trivial contradictions. Read More... WHETHER THE PROSECUTION IS REQUIRED TO PROVE ITS CASE BEYOND ALL IOTA OF DOUBT? Recently, the Hon’ble Supreme Court in Karan Singh vs State of Uttar Pradesh Bhardwaj’ observed that it is not incumbent upon the prosecution to prove its case beyond all iota of doubt. In the present case, Karan Singh and others were accused of murdering Brahmapal Singh. On 1st August 1983, the Trial Court convicted the accused persons for murder and sentenced them to undergo life imprisonment. Subsequently, an appeal was filed by Karan Singh along with other convicted persons. While the appeal was pending before the High Court, all accused except Karan Singh died. The High Court dismissed the appeal on 30th July 2018. Thus Karan Singh approached the Hon’ble Supreme Court. The division bench of Hon’ble Supreme Court comprising of Justices Indira Banerjee and V. Ramasubramanian referred to various precedents and observed that omissions, contradictions and discrepancies which do not shake the basic version of the prosecution witness and does not go to the heart of the matter cannot be given undue importance. Drawing a distinction between ‘reasonable doubt’ and ‘iota of doubt’ the Hon’ble Court concluded that the prosecution is only required to prove its case beyond reasonable doubt and not beyond all iota of doubt. Read More... Miscellaneous WHETHER THE POWER TO CONDONE DELAY UNDER SECTION 5 OF THE LIMITATION ACT APPLIES TO SUITS? Recently the Hon’ble Supreme Court in F. Liansanga vs Union of India observed that the power to condone delay under section 5 of the Limitation Act is not applicable on suits. The division bench comprising of Hon’ble Justices Indira Banerjee and JK Maheshwari while upholding the judgement of Gauhati High Court observed that the limitation might harshly affect a party but it has to be applied with all its rigours when it is so prescribed by a statute. Reliance was placed on the judgement delivered in Popat Bahiru Govardhane & Others vs. Special Land Acquisition Officer & Anr. reported in (2013) 10 SCC 765. The Hon’ble Court further added that the Limitation Code has been applicable to the state of Mizoram with effect from 21.01.1972 Read More... WHETHER THERE IS A TIME PERIOD WITHIN WHICH AMMENDMENT TO PLEADINGS CAN BE SOUGHT UNDER THE CODE OF CIVIL PROCEDURE? Recently the Delhi High Court in Jain Mahila Ashram V. Union Of India & Ors observed that the amendment to pleadings should be sought within a reasonable time and not to cause further delay to the trial itself. A single judge bench comprising of Justice Yashwant Verma stated that while it is true that the principles underlying the provisions of the Code of Civil Procedure may be adopted but it has no strict application. Read More... NEW DELHI X -3, Green Park Main, New Delhi, 110016, Telephones: +91 11 2652 0041-42 For further / specific information, please contact us at: info@tandonandco.com Disclaimer: The contents of this newsletter are intended for information purposes only, and parts of this newsletter are based on news reports and have not been independently verified. The newsletter is not in the nature of a legal opinion or advice. 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