Judgments

High Court of Delhi

Louis Vuitton v. Gaurav Bhatia and Ors.

MANU/DE/1443/2017

23.05.2017

Intellectual Property Rights

Damages have to be actual and not superfluous, Courts are not supposed to do guess work and grant damages

Present suit has been filed by Plaintiff seeking permanent injunction against Defendants, restraining them from infringing its trademark, copyright and also from passing off goods of Plaintiff as that of theirs and for rendition of accounts and damages. It is submitted that, act of Defendant offering counterfeit products of Plaintiff which are identical to product of Plaintiff amounts to infringement of its trademark.

Suit has been filed by a duly authorized person. Various documents showing registration of trademark in favour of Plaintiff proves that, Plaintiff is registered owner of trademark Louis Vuitton and logo "Toile Monogram" pattern. Documents on record also conclusively show that, Defendants 1 and 2 have been indulging into supply of counterfeit products of Plaintiff and for that purpose, two FIRs have already been registered. Fact that, they were arrested and remained in judicial custody clearly proves that, Defendants have infringed trademark of plaintiff and also copyright which vest in Plaintiff and is also indulging into business of passing off counterfeit goods as that of Plaintiffs.

There is no doubt that, Plaintiff is entitled for damages because Defendants have infringed his trademark and copyright and has been selling counterfeit products of Plaintiff and has, therefore, caused losses not only in goodwill and reputation, but also financial. However, there is no evidence on record to ascertain actual damages suffered by Plaintiff. Courts are not supposed to do guess work and grant damages for losses suffered by Plaintiff. Damages have to be actual and not superfluous.

Defendants, their partners, officers, servants, agents, distributors, stockists and representatives from manufacturing, selling and offering for sale, advertising, are restrained from directly or indirectly dealing in wallets, handbags, suitcases, luggage, purses, belts, footwear, jewellery or any other goods bearing the plaintiffs trademark "Louis Vuitton" or logo or the "Toile Monogram" pattern. Defendants are also restrained from using the domain name and directed to remove the said website from ISP. Defendants are also directed to render accounts of profit earned by them. However, no damages are granted.

Tags : Trademark Infringement Injunction

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High Court of Sikkim

Ram Narayan Prasad v. Benu Kumar Mukhia

MANU/SI/0018/2017

22.05.2017

Tenancy

Eviction can be claimed on ground of default in payment of rent

Instant appeal is against judgment passed in eviction wherein suit filed by Respondent herein/Plaintiff was decreed holding that, Plaintiff was entitled to a decree for recovery of possession of suit premises from Appellant herein/Defendant. Also a decree for arrears of rent of suit premises to tune of Rs. 2,88,000/- was granted. Issues involved in present case is whether notice was served on Defendant before filing of instant suit for eviction and that whether Defendant defaulted in making payment of rent.

Letting and sub-letting of premises controlling rents in State of Sikkim is regulated by Notification No. 6326-600. H & W-B dated 14th April, 1949, (Rules of 1949) which is saved under Article 371F of Constitution of India. Said notification still governs tenancy in entire State of Sikkim except premises situated in Gangtok, which is regulated under Gangtok Rent Control and Eviction Act 1 of 1956. As per Rules of 1949, landlords can charge rent for premises either for residential or business purposes on basis of rents prevailing in locality in year 1939, plus an increase upto 50 per cent so long as scarcity of housing accommodation lasts. Landlords cannot eject tenants so long as scarcity of housing accommodation lasts, but when whole or part of premises are required for their personal occupation or for thorough overhauling the premises or on failure by tenants to pay rent for four months, landlords may be permitted to evict tenant on due application to Chief Court.

Premises situate in Sikkim are regulated by Rules of 1949, which does not provide for issuance of notice in manner prescribed under Transfer of Property Act. In such view of matter, notice simpliciter satisfy requirement of notice as prescribed under Rules of 1949 read with agreement dated 21st November 1982, executed between parties. On application of well-settled principles to facts of case, it has come on record as averred in plaint that, notice dated 11th June, 2007 was served on Defendant by speed post duly received on 14th June, 2007, as is evident from Exhibit-15. There is no specific denial of receipt of notice. Thus, requirement of issue of notice is satisfied.

Words "lena dena", mentioned in some places, means making payment after adjustment of dues, if any, from landlord. Even after some dues were payable by landlord, Defendant cannot run away from responsibility of making payment regularly. Agreement provides for payment of rent by Defendant (tenant). Thus, it is not obligation of landlord to collect rent but it is for Defendant-tenant to pay rent regularly. Evidences clearly establish fact that, Defendant was in default of payment of rent since December, 2006. Again on 13th November, 2010, an undertaking was given to vacate upper floor of premises, which was not again complied with. Indisputably, an attempt was made by Defendant to make payment after filing of suit on 10th December, 2012, which was never accepted by Plaintiff landlord.

Plaintiff has claimed rent only from December 2009, as according to Plaintiff, his claim for arrear prior to December 2009 was barred by limitation. Trial Court has held accordingly, however, eviction can be claimed on ground of default in payment of rent since December 2006, as held by Supreme Court in Bhimsen Gupta vs. Bishwanath Prasad Gupta. Trial Judge has rightly held that, remedy of eviction on ground of default in payment of arrears is not barred by limitation while not granting arrears of rent prior to December, 2009. There is no infirmity or illegality in judgment and decree sought to be impugned in present appeal.

Relevant

Bhimsen Gupta vs. Bishwanath Prasad GuptaMANU/SC/0107/2004
: AIR 2004 SC 1770

Tags : Rent Payment Default Eviction

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High Court of Delhi

State Vs. Lucky

MANU/DE/1349/2017

17.05.2017

Criminal

Maximum sentence awarded under Section 394 of IPC, would be no ground for not granting benefit of Probation

State has called in question correctness of order of sentence passed by Additional Sessions Judge whereby accused person/Respondent, though has been convicted under Section 394/411 read with Section 34 of Indian Penal Code, 1860 (IPC), but has been let off on probation of good conduct, subject to his furnishing bond in sum of Rs. 25,000/- with one surety of like amount before Probation Officer to appear and receive sentence when called upon during period of probation and in meantime to keep peace and good behaviour for a period of one year from date of furnishing of bond. Respondent has also been directed to pay compensation of Rs. 3000/- each to both victims of case.

Appellant/State has challenged grant of benefit of probation to Respondent on ground that, Sections 4 & 6 of Probation of Offenders Act, 1958 specifically provide that, beneficent provisions could be invoked only under conditions enumerated in Section 4, viz. that conviction is for such offence which is not punishable with death or imprisonment for life. It is submitted that, Section 394 of IPC entails punishment of imprisonment for life or with rigorous imprisonment for a term which may extend to 10 years and accused shall also be liable to fine.

In Arvind Kumar Sinha v. Amulya Kumar Biswas, Supreme Court has held that punishment must be proportioned to offence is or ought to be of universal application save where statute bars the exercise of judicial discretion either in awarding punishment or in releasing an offender on probation in lieu of sentencing him forthwith.

Further, In Rattan Lal v. State of Punjab, Supreme Court handed down philosophy behind grant of probation that, “Act is a milestone in progress of modern liberal trend of reform in field of penology. It is result of recognition of doctrine that, object of criminal law is more to reform individual offender than to punish him. Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in case of offenders who are above age of 21 years, absolute discretion is given to Court to release them after admonition or on probation of good conduct, subject to conditions laid down in appropriate provisions of Act, in case of offenders below age of 21 years an injunction is issued to Court not to sentence them to imprisonment unless it is satisfied that having regard to circumstances of case; including nature of offence and character of offenders, it is not desirable to deal with them under Sections 3 and 4 of Act."

What would control and affect applicability of Probation of Offenders Act, 1961 would not be maximum sentence prescribed for offence, but whether Court has discretion to award a lesser sentence than maximum, without there being any caveat with respect to minimum sentence which has to be awarded for offence. Since, Penal Code does not bar exercise of judicial discretion in matter of award of sentence for offence under Section 394 of IPC, Probation of Offenders Act, 1961 would be applicable.

Any Court while exercising jurisdiction under Sections 4 & 6 of Probation of Offenders Act, 1958 has to keep in view nature of offence and conditions incorporated under the Act. It is only if Court forms an opinion that, it is expedient to release convict on probation for good conduct, regard being had to circumstances of case, then only benefit could be extended. Nature of offence is definitely one of circumstances. Court has the discretion to decide when and how it should form such an opinion. Merely because maximum sentence of life could have been awarded under Section 394 of Indian Penal Code, it would be no ground for not granting benefit of Probation of Offenders Act to Respondent. Court has discretion in matters of sentencing and sentencing process would hinge on nature and circumstances of case.

Though Respondent has been convicted under Sections 394 and 411 of IPC but considering nature of offence, character of offender, report of Probationary Officer and Respondent leading a disciplined life on reformed path, this Court has not been persuaded to differ with order of sentence by trial Court.

Relevant

Arvind Mohan Sinha vs. Amulya Kumar Biswas and Ors. MANU/SC/0099/1974
, Rattan Lal vs. State of Punjab MANU/SC/0072/1964

Tags : Probation Benefit Validity

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High Court of Delhi

Ram Krishan & Sons Charitable Trust v. ILM Consulting Pvt. Ltd.

MANU/DE/1350/2017

17.05.2017

Intellectual Property Rights

Registered proprietor of trademark has exclusive right to use said trademark in relation to goods or services in respect of which trade mark is registered

Case of Plaintiff is that, it is a registered Trust and is engaged in field of providing educational services and running various Senior Secondary Schools, Management Institutes, Engineering College, Pharmacy College etc. Plaintiff set up a school in year 1986 and a management institute by name of "Institute for Integrated Learning in Management" i.e. IILM in year 1993. That Plaintiff is very well known in field of education and has a distinctive name and fame in that field. It has a registered trademark "IILM" and 'IILM Foundation' and also logo of IILM Law School. It has been extensively using said trademark and also advertising under said logo and trade mark. It is contended that, by virtue of extensive sales promotions and activities in respect of its education institutes, "IILM" is synonymous only with the Plaintiff. It has also earned good will, reputation and fame. In year 2013, Plaintiff came to know that, Defendant is using trademark ILM which is identical/deceptively similar to that of Plaintiffs trademark IILM. It is submitted that, since Defendant's academy is also engaged in educational and employment opportunities, public at large feels that, it is extension of Plaintiffs academy/institution. Plaintiff prayed that, Defendant, it's directors, principles, proprietor, partner, employees, agents, distributors, franchisees representatives and assigns be restrained by way of ad-interim injunction from manufacturing, selling, marketing, advertising or using trade mark ILM which is similar to Plaintiffs registered trade mark IILM and also websites www.iilm.edu, www.iilm.in and www.iilm.ac.in.

Plaintiff led ex-parte evidence and examined Mr. Anil Kanodia in order to prove its case. Witness has duly proved on record Trust deed dated 30th October, 1980 and has also proved registration certificates of trademark IILM and its logo vide documents. Witness has also proved on record its brochure and prospectus. He has also proved approval from AICTE vide documents for establishment of plaintiffs College of Engineering and IILM Academy of Higher Learning at Greater Noida and for an integrated course and for College of Management Studies.

Plaintiff has successfully proved that, it is a Charitable Trust and that it is owner of registered trademark IILM and its logo and also running websites and had circulated its brochure and prospectus. Petitioner's witness has also clearly stated that, Plaintiff enjoys goodwill and reputation in educational field and is maintaining a high standard and that is why public at large in India prefers their institution. It qualifies to be well known trademark and as soon as anybody takes name of IILM, it is Plaintiffs institution which comes to mind of public. Witness has also proved that, general public while surfing internet, may come across Defendant's website i.e www.ilmcampus.com which is deceptively similar to that of Plaintiffs websites i.e. www.iilm.edu, www.iilm.in and www.iilm.ac.in and would think that, they are surfing Plaintiffs websites because Defendant is also engaged in an educational field including placement of students and providing them with educational and employment opportunities.

Plaintiffs witness has proved on record that, Defendant is using said websites and also using abbreviation ILM for their academy, both are deceptively similar to that of registered trademark of Plaintiff and its websites. Section 28 of Trademarks Act, 1999 clearly envisages that, registered proprietor of trademark has exclusive right to use said trademark in relation to goods or services in respect of which trade mark is registered. Section 29 (1) of Trademarks Act, 1999 clearly states that, where a person infringes a registered trademark of a proprietor which is identical with, or deceptively similar to, trade mark in relation to services or goods in respect of which trademark is registered, then they are infringing rights of registered owner of said trademark.

Trademark of Plaintiff is "IILM" and one which Defendant is using as "ILM". Court is satisfied that, Defendant is using deceptively similar trademark of Plaintiff and since, it is also in business of education and running an academy for providing students with educational and employment opportunities. Defendant is also using website which is also deceptively similar to that of Plaintiff's websites. Right of Plaintiff has been infringed and therefore, Plaintiff has a right to protect his trademark. Accordingly, suit is decreed and by way of ex-parte order, Defendant, it's directors, principles, proprietors, partners, representative, assigns are restrained from selling, using, manufacturing, advertising the institute under the trade mark ILM or any other identical or deceptively similar name to the plaintiffs institute 'IILM' in respect of providing educational opportunities to students and are also restrained from using website with domain name www.ilmcampus.com.

Tags : Trademark Infringement Injunction Grant

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Central Information Commission

Ashok Kumar v. PIO, Central Social Welfare Board

MANU/CI/0332/2017

17.05.2017

Right to Information

NGOs annual reports, income-expenditure statements and ITRs cannot be considered somebody's 'personal' or 'third' party information

Appellant filed RTI application seeking information about J&K NGO's availing GIA under BAJSS/Centralized System of Rajiv Gandhi National Creche Scheme from Central Social Welfare Board. Deputy Director of Central Social Welfare Board stated that, information sought by Appellant is third party information, hence, cannot be provided. Appellant alleged that, several NGOs in Jammu and Kashmir are not filing IT returns and seeks to know competition assessment including grants, funds that are received by such organisations in light of new amendment in Income Tax Act as per which an organisation cannot receive more than Rs. 2,000 in cash.

Section 138(1)(b) of Income Tax Act, 1961 empowers Commissioner of Income Tax to disclose, "in public interest", any information which comes into hands of public authority. If an NGO registers itself with Income Tax department, it has to tell people that, it has a PAN registration; similarly, if it registers under 12AA or 80G of Income Tax Act, it has to inform same and even should give registration details. In fact, these 3 factors i.e., (1) PAN registration, (2) registration under Section 12AA and (3) registration under Section 80G of Income Tax Act, would give an NGO a credit and credibility to collect donations with information given to donors to secure some rebate in taxation. Hence, these documents cannot be claimed as third party information. Consolidated income and expenditure account of an NGO/political party has to be in public domain are given on demand in interest of transparency and accountability, there is no point in considering this statement as confidential. Central Social Welfare Board being regulatory of social welfare activities has every authority to check whether concerned NGO has registered a PAN card for it, whether they are filing IT returns regularly, what is IT assessment and how much of tax was paid by it, besides, amount of donations and also donors etc. Appellant is interested in knowing these aspects of Jammu & Kashmir NGOs which indicates enormous public interest in disclosure.

Hence, NGO is expected to be transparent. NGOs annual reports, income-expenditure statements and ITRs cannot be considered somebody's 'personal' or 'third' party information. An NGO similarly cannot hide its income tax returns. Hence, Commission directs Respondent authority to provide certified copies of information sought along with PAN number, if not copy of PAN card. In light of above developments, Commission directs Respondent authority to provide complete details regarding Jammu & Kashmir NGOs including certified copies of registration certificate duly attested by Registrar of Societies and the copy of PAN number, within 21 days from date of receipt of this Order. In fact, NGOs in their capacity as public authorities should voluntarily disclose all information sought under Section 4(1)(b) of Act along with their activities report. Respondent authority is under an obligation to disclose this information as mandated under Section 4(1)(b) of R.T.I. Act, 2005.

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High Court of Karnataka

Madhukar G. Angur and Ors. Vs. Madhusudhan Mishra and Ors.

MANU/KA/1086/2017

16.05.2017

Civil

Grant of an injunction is not merely a formality to be performed, but is a serious step to be taken during course of trial

Appellants are aggrieved by order passed by IV Additional City Civil and Sessions Judge, whereby learned Civil has granted a temporary injunction in favour of Respondent No. 1, (Plaintiff), and has debarred Appellants from interfering with administration and management of Alliance University, (University), and Alliance Business School ('Sponsoring Body"), and from entering upon three campuses owned and operated by University. Mr. Madhusudan Mishra, Plaintiff, claims to be the Deputy Registrar and In-Charge Registrar of the University. Appellant pleaded that, since Mr. Madhukar Angur was appointed as Chancellor for life, under Section 15 (2) of Alliance University Act, 2010, he could not be removed by Sponsoring Body.

In case of Lakshminarasimhiah and Others v. Yalakki Gowda, it is observed that, relief should be awarded only in clear cases that are reasonably free from doubt. Court should therefore, be guided by fact that, burden of proof rests upon complainant to establish material allegations entitling him to relief. While dealing with role of trial Court, in case of Maria Margarida Sequeira Fernandes and Others v. Erasmko Jack De Sequeira (Dead) through LR's., Apex Court has opined that, "in a suit for mandatory injunction, it is bounden duty and obligation of Court to critically examine pleadings and documents and pass an order of injunction while taking pragmatic realities in consideration. Court's primary concern has to be to do substantial justice."

It is, indeed, trite to state that, while dealing with an application under Order XXXIX, Rules 1 and 2 of Code of Civil Procedure, 1908 (CPC), trial Court has to examine existence of three factors, namely, existence of a prima facie case, balance of convenience of parties, and if an irreparable loss would be caused to Plaintiff in case temporary injunction were refused by Court. Moreover, it is a settled position of law, that while considering existence of a prima facie case, trial Court has to examine locus standi of Plaintiff, maintainability of suit, cause of action pleaded by Plaintiff, and if there is a trialable case or not.

Since, Appellants have challenged locus standi of Plaintiff, and maintainability of suit, at time of consideration of application for temporary injunction, trial Court was required to deal with both these issues, even on a prima facie basis. Trial court could not have ignored these two issues as these two issues go to the root of case. Despite fact that, said pleas were raised, trial court has failed to consider the same. According to Section 4(4) of Act, University is a body corporate. Section 4(6) of Act provides that, in all suits and other legal proceedings by or against University, pleading shall be signed and verified by, and all processes in such suits and proceedings shall be issued to and be served on Registrar.

Plaint clearly reveals that, all reliefs prayed for are with relation to University. Not a single relief has been prayed for Mr. Madhusudhan Mishra, Plaintiff. Since reliefs relate to University, suit is for University. Yet suit has not been presented by University. Perusal of e-mail, authorisation letter, clearly reveals that, Mr. Madhusudhan Mishra is being authorised to sign documents dealing with legal issues pertaining to University, but with permission and approval of Chancellor. There is not an iota of evidence submitted by Plaintiff even indicating that, he has permission and approval of Chancellor for instituting suit against Appellants. Thus, it is crystal clear that, Mr. Madhusudhan Mishra has no authority to institute suit on behalf of University. Civil Judge has not considered e-mail which is alleged to be authorisation letter. Section 4(6) of Act, clearly reveals that, it does not authorise Registrar to delegate his power to file a suit on behalf of, or to contest case on behalf of University, to any other person. Therefore, said power could not be delegated by Registrar of University to Mr. Madhusudhan Mishra.

Furthermore, although Plaintiff claims to be in-charge of post of Registrar, he has not produced any documentary evidence to establish fact that, he has been appointed as an Officiating Registrar of University. In absence of relevant evidence, affidavit filed by Plaintiff cannot be taken as gospel truth. Even an affidavit has to be corroborated by documentary evidence. However, in present case, relevant documentary evidence is conspicuously missing. Moreover, purported authorisation letter does not even qualify as an authorisation letter for filing civil suit. Therefore, Mr. Madhusudhan Mishra, having no authority from University to file suit, prima-facie could not have filed suit on behalf of University. Thus, prima-facie, he does not have locus standi to file suit. Thus, on a prima-facie basis, suit is not maintainable.

In present case, since University is a body corporate, suit should have been filed by University through its Registrar as required under Section 4(6) of Act. However, suit has not been filed by University through its Registrar. Moreover, as University has not authorised Mr. Madhusudhan Mishra for instituting suit on its behalf. Therefore, it is not a case of mis-description of a party. But, it is clearly a case of mis-joinder of necessary party. Although, under Order 1 Rule 10 of CPC, trial Court has power to strike out any party improperly joined, or to implead a necessary party, but so far, no application under Order 1 Rule 10 of CPC, has been filed by Plaintiff. Therefore, trial Court should have realized that, neither Mr. Madhusudhan Mishra has locus standi to file suit, nor suit is maintainable against Appellants. At relevant time, Mr. Madhusudhan Mishra was pretending to be the authorised Registrar, although he did not possess any authorisation letter in his favour.

It is, indeed, trite to state that, grant of an injunction is not merely a formality to be performed, but is a serious step to be taken during course of trial. Thus, trial Court should be careful and cautious while dealing with an application for temporary injunction. Trial Court is not justified in granting a temporary injunction in favour of Plaintiff. Once neither of these two factors are in favour of Plaintiff, question of irreparable loss caused to Plaintiff would not even arise. Court allowed the appeal and set aside impugned order.

Relevant

Maria Margarida Sequeira Fernandes and Others v. Erasmko Jack De Sequeira (Dead) through LR's. MANU/SC/0225/2012

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