Legal News & Views

In MOHAMMED ZAKIR vs SHABANA & ORS., the appellant is aggrieved since the High Court passed an order under Section 362 Cr.P.C. dated 28.04.2017 recalling its own order dated 18.04.2017. The High Court in its order decided that notwithstanding section 362 of Cr.P.C., the order rendered by this Court earlier on 18.04.2017 is found to be patently erroneous and therefore the order is withdrawn. The petition is restored to file and the registry is directed not to webhost the order passed earlier and to take note of the fact that the order is withdrawn. The Supreme Court  setting aside the order decided that the High Court should not have exercised the power under Section 362 Cr.P.C. for a correction on merits. However patently erroneous the earlier order  be, it can only be corrected in the process known to law and not under Section 362 Cr.P.C. The whole purpose of Section 362 Cr.P.C. is only to correct a clerical or arithmetical error. What the High Court sought to do...

In THE STATE OF BIHAR vs BIHAR RAJYA BHUMI VIKAS BANK SAMIT, the question before the Supreme Court was whether prior notice to the other party before filing an application to set aside an arbitral award is mandatory or directory. By an amendment brought in 2016, a subsection (5) has been inserted to Section 34 of the Act, which states that application to set aside arbitral award shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement. The Bombay and Calcutta high courts held that the provision is directory, largely because no consequence has been provided for breach of the time limit specified. The high courts of Kerala, Himachal Pradesh, Delhi and Gauhati have all taken the view that Section 34(5) is mandatory in nature. The Patna High Court’s view in this regard, which also held that the provision is mandatory, was challenged be...

In Rajendra Kumar Poddar vs M/S. Subham Constructions, the State Commission has dismissed the complaint on the ground of having been filed after two years from the date of cause of action and therefore appeal before NCDRC. Learned counsel stated that the possession was taken on 18.05.2012 and after taking the possession the complainant noticed that there were several defects in the construction and the complainant was pursuing the matter with the opposite parties.  The opposite parties were giving assurance for rectification of the defects, however, when no rectification was done the complaint was filed on 08.01.2015. The State Commission has considered the period of limitation from the date of possession whereas the fact is that complainant was pursuing with the opposite parties and it was continuing cause of action as all the defects were not noticed initially and later on more defects came to the light, therefore, the limitation should be counted from the date of ...

In COMMISSIONER OF CUSTOMS (IMPORT), MUMBAI  vs M/S. DILIP KUMAR AND COMPANY & ORS., the Supreme Court Constitution bench was set up to examine correctness of Judgment in Sun Export Corporation, Bombay v. Collector of Customs case by a three-Judge bench. In the said judgment, it was held that an ambiguity in a tax exemption provision or notification must be interpreted so as to favour the assessee claiming the benefit of such exemption. The five judge bench concluded that the Sun Export judgment created confusion and resulted in unsatisfactory state of law and decided that any ambiguity in a taxing statute should enure to the benefit of the subject/assessee, but any 66 ambiguity in the exemption clause of exemption notification must be conferred in favour of revenue – and such exemption should be allowed to be availed only to those subjects/assesses who demonstrate that a case for exemption squarely falls within the      parameters enumerated i...

In Deepa Sanjeev Pawaskar vs State Of Maharastra, the doctors were accused of criminal negligence due to the death of a pregnant woman at the nursing home run by the doctors. The Bombay High Court held that doctors failure to exercise the degree of care and skill that a physician or surgeon of the medical specialty would use under similar circumstances would amount to malpractice. An error in diagnosis could be negligence and covered under section 304A of the Indian Penal Code.  But this is a case of prescription without diagnosis and therefore, culpable negligence. The element of criminality is introduced not only by a guilty mind but by the practitioner having run a risk of doing something with recklessness and indifference to the consequences. It should be added that this negligence or rashness is gross in nature. Negligence becomes actionable on account of the injury resulting from the act or omission to commit the act amounting to negligence i.e. criminal negligence...

The Supreme Court in Shyam Sunder Agarwal vs. P Narotham Rao has held that clauses inserted in the agreements to prevent disputes from occurring and to ensure smooth implementation of the agreement will not be an arbitration agreement. The court found that the clause in the MOU referred to by the appellant while referring to two persons as Mediators/Arbitrators but the same persons have also been appointed as escrow agents for smooth and successful completion of the transaction. Referring to the the decision of the Supreme Court in Bihar State Mineral Development Corporation vs. Encon Builders (I) (P) Limited wherein it was decided that a clause which is inserted in an Agreement for the purpose of prevention of a dispute will not be an arbitration agreement, the court said that in this MOU it is clear that the wording of the Agreement, as has been held by us above, is clearly inconsistent with the view that the Agreement intended that disputes be decided by arbitration.

In M/S. NANDHINI DELUXE vs M/S. KARNATAKA CO-OPERATIVE MILK PRODUCERS FEDERATION LTD., the dispute before the Supreme Court pertains to the use of mark ‘NANDHINI’.  The respondent adopted the aforesaid mark ‘NANDINI’ in the year 1985 and under this brand name it has been producing and selling milk and milk products. It has got registration of this mark as well under Class 29 and Class 30. The appellant herein, on the other hand, is in the business of running restaurants and it adopted the mark ‘NANDHINI’ for its restaurants in the year 1989 and applied for registration of the said mark in respect of various foodstuff items sold by it in its restaurants. The objections of the respondent on the ground that it is deceptively similar to the mark of the respondent and is likely to deceive  the  public  or  cause confusion were dismissed by the Deputy Registrar of the Trade Mark. The appeal of the respondent was allowed by the Intellectual Property...