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Happy Dasara

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Wish you all a happy and prosperous Dasara with regards
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Trade Mark - Sec.34 and Sec.47 - First User rule & Abandonment of right for not using for a period of 5 years 3 months from the date of registration - Interim Injunction pending suit - Apex court held that since the Plaintiff-Respondents have alleged, and have prima facie supported with proof, that they had already been using their trademark well before the attempted user of an identical or closely similar trademark by the Defendant-Appellant, the former would be entitled to a temporary injunction, in light of the abovementioned ‘first in the market’ test. We find that the Plaintiff-Respondents have made out a prima facie case. The two other factors in an interim injunction, namely the balance of convenience and an irreparable loss, are both in favour of the Plaintiff- Respondents, given the potential loss of goodwill and business they could suffer should an injunction be denied. The Defendant-Appellant has been injuncted from using the mark ROFOL since 2005, after having launched products bearing the mark only in the previous year, so the balance of convenience is in favour of allowing the injunction to continue. - Appeal dismissed-2015 S.C.MSKLAWREPORTS

 Trade Mark - Sec.34 and Sec.47 - First User rule & Abandonment of right for not using for a period of 5 years 3 months from the date of registration - Interim Injunction pending suit - Apex court held that since  the Plaintiff-Respondents have alleged, and  have  prima  facie  supported  with  proof, that they had already been using  their  trademark  well  before  the attempted  user  of  an  identical  or  closely  similar  trademark  by  the Defendant-Appellant,  the  former  would  be   entitled   to   a   temporary injunction, in light of the abovementioned ‘first in the market’  test.   We find that the Plaintiff-Respondents have made out a prima  facie  case.   The two  other  factors  in  an  interim  injunction,  namely  the  balance   of co...
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Suit for Specific Performance of contract - defendant pleaded that it is only executed as security for debt - already executed an agreement of sale infavour of third party - plaintiff never pleaded that he is always ready and willing to perform nor pleaded that he is ready to redeem the mortgage debt nor pleaded that he has got already redeemed the mortgage debt - as per sec.20 (2)(a) of Specific relief Act , the plaintiff is not entitled for specific performance of the contract and on the other hand it is a fit case for refund of the amount of Rs.4 lakhs with 18 % per annum, failing which Trail court decree would be confirmed - 2015 S.C. MSKLAWREPORTS

the suit for specific performance of contract.- in a suit filed by the plaintiff/respondent No.1. -    It  was further agreed between the parties that the land  in  suit,  mortgaged  with defendant No.2/respondent No. 2  Gurgaon  Gramin  Bank,  Nagina,  would  be redeemed by the appellant before execution of the sale deed. -  since the answering defendant was in the need of  money,  he  had  taken  loan  of Rs.1,50,000/- from the plaintiff on 21.06.2004, on interest at the  rate  of 1.5% per month. The appellant specifically denied  having  received  rupees four lacs, as alleged by the plaintiff.  It is  further  pleaded  that  when respondent No. 1 made demand for repayment of Rs.1,50,000/-  with  interest, and created pressure, the answering defendant asked  Pravin  Kumar  to  make payment of Rs.1,80,000/...
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Whether a defendant in a suit for partition can be permitted to withdraw an admission made in the written statement after a pretty long period, is the issue arising for consideration in these cases.?- Admission can not be withdrawn but can be clarified or explained by way of amendment = We agree with the position in Nagindas Ramdas (supra) and as endorsed in Gautam Smiarup (supra) that a categorical admission made in the pleadings cannot be pertted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be withdrawn, as held in Panchdeo Narain Srivastava (supra), does not reflect the correct legal position and it is overruled. However, the admission can be clarified or explained by way of amendment and the basis of admission can be attacked in a substantive proceedings. In this context, we are also mindful of the averment in the application for amendment that: “11. …. Mahabir Prasad Kajaria died at age of 24 years on 7th May, 1949 when the defendant No. 5 was only 2 years and the defendant No. 12 was only 21 years. Till the death of Mahabir and even thereafter, the petitioners had been getting benefits from income of the joint properties. The defendant No.5 and his two sisters, namely, Kusum and Bina were brought up and were maintained from the income of the joint family properties. The petitioners after the death of Mahabir, they continued to live in the joint family as members and till now members of the joint family. In the marriage of the two sisters of the defendant no.5 Kusum and Bina (now after marriage Smt. Kusum Tulsian and Smt. Bina Tulsian) the expenses were wholly borne out from the incomes of the joint family properties. The said facts are well known to all the family members and their relations.” In the counter affidavit filed before this Court, Defendant Nos. 5 and 12 have stated as follows: “The alleged letter of 1956 allegedly issued by the widow of Mahabir Prasad used in the arbitration proceedings where she was not a party admitting relinquishment of the share of her husband and thereafter admitting such letter in the original pleading is not what the answering respondents want to resile and/or withdraw from but by the present amendment had only ought to explain the circumstances in which such letter has been written.” In the above circumstances, we do not intend to make the suit filed in the year 2005 otherwise infructuous. The application for amendment withdrawing the admissions made in the written statement on relinquishment of the claim to the suit property by Defendant Nos. 5 and 12 is rejected. However, we, in the facts and circumstances of the case, are of the view that Defendant Nos. 5 and 12 should be given an opportunity to explain/clarify the admissions made in the written statement. Accordingly, Defendant Nos. 5 and 12 are permitted to file an application within one month from today limiting their prayer only to the extent of explaining/clarifying the disputed admissions in the written statement which will be considered on its merits and in the light of the observations made herein above.-2015 S.C.MSKLAWREPORTS

Whether a defendant in a suit for partition can be permitted to withdraw an admission made in the written statement after a pretty long period, is the issue arising for consideration in these cases.?- Admission can not be withdrawn but can be clarified or explained by way of amendment = We agree with the position in Nagindas Ramdas (supra) and as endorsed in Gautam Smiarup (supra) that a categorical admission made in the pleadings cannot be pertted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be withdrawn, as held in Panchdeo Narain Srivastava (supra), does not reflect the correct legal position and it is overruled. However, the admission can be clarified or explained by way of amendment and the basis of admission can be attacked in a substantive proceedings. In this context, we are also mindful of the averment in the application for amendment that: “11. …. Mahabir Prasad Kajaria died at age of 24 years on 7th May, ...
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The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.-2015 S.C.MSKLAWREPORTS In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas vs. State of Assam (2013)12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of “may be” true but has to upgrade it in the domain of “must be” true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. The materials on record when judged on the touch stone of the legal principles adumbrated hereinabove, leave no manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification and, thus, we are constrained to hold that it would be wholly un-safe to sustain the conviction of the appellant under Section 13(1)(d)(i)&(ii) read with Section 13(2) of the Act as well. In the result, the appeal succeeds. The impugned judgment and order of the High Court is hereby set-aside. The appellant is on bail. His bail bond stands discharged. Original record be sent back immediately. -2015 S,C,MSKLAWREPORTS

         The proof of demand of  illegal  gratification,  thus,  is   the gravamen of the offence under Sections 7 and  13(1)(d)(i)&(ii)  of  the  Act and in absence thereof, unmistakably the charge therefor, would fail.   Mere acceptance of any amount  allegedly  by  way  of  illegal  gratification  or recovery thereof, dehors the proof of demand, ipso facto, would thus not  be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove  the  demand for illegal gratification would be fatal and mere  recovery  of  the  amount from the person accused of the offence under Sections 7 or  13  of  the  Act would not entail his conviction thereunder.-2015 S.C.MSKLAWREPORTS   In reiteration of the golden principle which  runs  through  the web...
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Whether the application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) seeking appointment of a Sole Arbitrator in terms of clause 22.3 of the Supply Contract between the parties which was entered is maintainable without following the procedure of giving notice and without naming the arbitrator by mutual consent when the sole arbitrator recused himself ? - No , the application is a premature one.- 2015 MSKLAWREPORTS Under Section 15(2) of the Act in a situation where the mandate of an arbitrator terminates, a substitute arbitrator is required to be appointed according to the rules that were applicable to the appointment of the arbitrator who is replaced. Clause 22.3 of the Supply Contract contemplates appointment of a sole arbitrator by the parties by mutual consent. In a situation where the original arbitrator i.e. Shri Justice S.K. Dubey had recused himself the substitute or new arbitrator is required to be appointed according to the rules that were applicable to the appointment of the original arbitrator. This is the mandate of Section 15(2) of the Act. It was, therefore, incumbent on the petitioner to give notice and explore the possibility of naming an arbitrator by mutual consent and only on failure thereof the present application under Section 11(6) of the Act could/should have been filed. The above recourse is required to be followed by virtue of the provisions of Section 15(2) of the Act and the decision of this Court in Yashwith Constructions (P) Ltd. (supra). Admittedly, the same had not been followed. In these circumstances, the Court will understand the present application/arbitration petition to be premature. It is accordingly not entertained leaving it open for the petitioner to act appropriately, if so advised, in terms of the present order and thereafter seek its remedies as provided by law. The Arbitration Petition is disposed of in the above terms. 2015 SC MSKLAWREPORTS

 Whether the application under Section  11(6)  of  the  Arbitration  and Conciliation Act, 1996 (hereinafter referred  to  as  “the  Act”)  seeking appointment of a Sole Arbitrator in terms of  clause  22.3  of the Supply Contract between the  parties  which  was  entered  is maintainable without following the procedure of giving notice and without naming the arbitrator by mutual consent when the sole arbitrator recused himself ? - No , the application is a premature one.- 2015 MSKLAWREPORTS           Under Section 15(2) of the Act in a situation where the  mandate of an arbitrator terminates, a  substitute  arbitrator  is  required  to  be appointed according to the rules that were applicable to the appointment  of the arbitrator who is replaced. Clause 22.3 of the Supply Contract contemplates  appointment ...
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Section 157 - A of the U.P Zamindari And Land Reforms Act-"157-A. Restrictions on transfer of land by members of Scheduled Castes. - (1) Without prejudice to the restrictions contained in sections 153 to 157, no bhumidhar or asami belonging to a Scheduled Caste shall have the right to transfer any land by way of sale, gift, mortgage or lease to a person not belonging to a Scheduled Caste, except with the previous approval of the Collector : Provided that no such approval shall be given by the Collector in case where the land held in Uttar Pradesh by the transfer on the date of application under this section is less than 1.26 hectares or where the area of land so held in Uttar Pradesh by the transferor on the said date is after such transfer, likely to be reduced to less than 1.26 hectares. (2) The Collector shall, on an application made in that behalf in the prescribed manner, make such inquiry as may be prescribed." From a perusal thereof, it would be clear that nowhere does the Section restricts itself to agricultural land. On the contrary, the language used is that no Bhumidhar or Asami belonging to a Scheduled Caste Category shall have the right to transfer any land without the approval of the Collector. In the present case, admittedly, no previous approval for transfer has been granted by the Collector though according to petitioner the lease deed was registered without any objection. In our opinion, once an act has to be done by a specific method, it is not possible to accept the contention of the petitioner that because at the time of executing of the lease deed, the said lease deed was registered and that amounts to a transfer granting approval by the Collector under Section 157-A of the Act. We are therefore, clearly of the opinion that the Collector having not granted approval prior to the execution of the lease deed, the respondents were right in not awarding marks to the petitioner under the head of land and infrastructure. 2015 Allahabad High court[2011] MSKLAWREPORTS

Section 157 - A of the U.P Zamindari And Land Reforms Act- "157-A. Restrictions on transfer of land by members of Scheduled Castes. - (1) Without prejudice to the restrictions contained in sections 153 to 157, no bhumidhar or asami belonging to a Scheduled Caste shall have the right to transfer any land by way of sale, gift, mortgage or lease to a person not belonging to a Scheduled Caste, except with the previous approval of the Collector :  Provided that no such approval shall be given by the Collector in case where the land held in Uttar Pradesh by the transfer on the date of application under this section is less than 1.26 hectares or where the area of land so held in Uttar Pradesh by the transferor on the said date is after such transfer, likely to be reduced to less than 1.26 hectares.  (2) The Collector shall, on an application made in that behalf in the prescribed manner, make such inquiry as may be prescribed."  From a perusal thereof, it would be clear that now...
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