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[No.114]
March 02,
2005 |
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International Legal
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Cases
Source:
Westlawinternational.com
An alleged agreement
between a financial services firm and one or more competitors of the plaintiff
automobile dealers not to enter into dealer agreements with the dealers was not
a per se group boycott in violation of the Maryland Antitrust Act. There was no
group boycott because there was no horizontal agreement between direct
competitors, either between the firm and other firms offering credit options, or
the between dealers' competitors.
Southern Volkswagen,
Inc. v. Centrix Financial, LLC
The statute
governing the surname of a child born outside of marriage did not violate the
equal protection clause, in a proceeding in which the father filed a petition
for a change of the name of the child, who was born outside marriage. The mother
argued the statute was unconstitutional since the alleged paternal preference
expressed in the statute denied her equal protection under law. However, due to
the large number of children born outside of marriage in the state and the cost
incurred by the state in establishing paternity and collecting child support,
the state had an important interest in increasing the number of fathers who
acknowledged and supported their children, thus reducing the costs borne by the
state. And, the statutes's requirement that a father of a child born outside of
marriage acknowledge the child and agree to a plan of support before being
listed on the birth certificate and giving the child his last name substantially
furthered that interest.
Sanders v.
Silverthorn
Quantum meruit
recovery was proper under Maine law where the parties continued to work together
to complete a website development project after a material breach of their
underlying contract. The jury was entitled to find that the parties' dealings
were extra-contractual during the period relevant to the developer's quantum
meruit claim, given the apparent impossibility of completing the website during
the "cure" period and the immediate, intense negotiations for a new,
modified contract.
Uncle Henry's Inc.
v. Plaut Consulting Co., Inc.
The plaintiff in a
products liability action against a pharmaceutical company could assert a loss
of consortium claim for latent injuries discovered after she was married but
caused by her pre-marriage exposure to DES. The plaintiff had not suffered
ascertainable injuries at the time of her marriage. Moreover, although she
apparently suffered substantial injury in utero when she was exposed to the
drug, she may have suffered additional injuries when she attempted to become
pregnant.
Baughn v. Eli Lilly
and Co.
An investor's
failure to timely file suit to vacate part of National Association of Securities
Dealers arbitration award could not be excused under New York law on grounds of
excusable neglect or because he was proceeding pro se. However, if pro se office
of court refused to accept the investor's timely filed suit because it had not
yet been served, then the untimely filing would have been a product of patently
erroneous instructions by a member of the court's staff, and consequently a
question would arise whether complaint would be barred under New York law by
statute of limitations.
Hakala v. J.P.
Morgan Securities, Inc.
Separate convictions
and sentences for leaving the scene of a single accident that resulted in the
death of two victims violated the prohibition against double jeopardy. The unit
of prosecution for the offense was the act of leaving the scene of the accident
without stopping, and not the number of victims killed.
Com. v. Constantino
A wife married her
husband after he was retired on a disability pension, and thus was not entitled
to survivor's benefits under the Pension Code. The husband resigned from the
police department days after applying for disability benefits, and prior to
marrying the wife, and the Pension Code did not distinguish between permanent
retirement on account of age or service and retirement on account of a
disability.
Stec v. Board of
Trustees of Oak Park Police Pension Fund
A permit issued by
the Environmental Protection Division (EPD) to a county that allowed the county
to discharge treated wastewater into a lake, which discharge degraded the water
quality of the lake, did not require the county to utilize the highest and best
practicable level of treatment under the existing technology as required by the
regulations for the issuance of such a permit. The permit contained an
engineering safety buffer that was designed to protect the county from fines
associated with permit violations. However, the evidence indicated that the
treatment plant was capable of removing more pollutants from the discharged
water than was required under the permit. Any fear the county had of future
regulatory violations did not justify greater water degradation than was
necessary.
Hughey v. Gwinnett
County
Under Florida law,
in the insureds' action against their automobile insurer for bad-faith failure
to settle a negligence claim against them stemming from an automobile accident
involving the insured vehicle, the jury was entitled to infer bad faith from the
insurer's delay in initiating settlement negotiations with the family of a man
who was injured in the accident. Liability was clear from the outset and known
to the insurer. The severe scope of the injuries was also known to the insurer.
Snowden ex rel.
Estate of Snowden v. Lumbermens Mut. Cas. Co.
In order for the
preservation and advancement of universal service, the Telecommunications Act
did not mandate that states replace existing implicit subsidies with explicit
support mechanisms. Congress intended that the states retain significant
oversight and authority and did not dictate an arbitrary time line for
transition from one system of support to another and Congress did not expressly
foreclose the possibility of the continued existence of state implicit support
mechanisms that functioned effectively to preserve and advance universal
service.
Qwest Communications
Intern., Inc. v. F.C.C.
News
A bill, proposed to
be introduced in the Chinese parliament in the next session commencing on
Saturday, has sparked off widespread protests in Taiwan. According to the Chinese
government, the Anti Secession bill is aimed at peaceful unification with
Taiwan. The Taiwanese government fears that the move spells a threat to regional
stability. The Taiwan Solidarity Union is planning to table a draft
anti-annexation law in parliament next month to counter China's anti-secession
law
In an incident where
a parish-group volunteer caused an accident due to which an 84-year-old man became a
quadriplegic, the jury delivered a verdict that the parish support group could
not be separated from the parish as such the church and so the church is
responsible for the action of the parish group volunteer. In a previous
decision, about a decade now, a Wisconsin Supreme Court decision has been used
to head off any church responsibility for the misconduct of clergy in sexual
abuse cases. The Supreme Court has decided to review that decision. It is a moot
question, how churches are responsible in cases of accidents whereas they are not
in the case of molestation.
The Home Secretary
of UK has indicated that he will amend the Prevention of Terrorism Bill, so that
the government would have to apply to a judge before detaining terror suspects
under house arrest without trial. According to the amendments sought to be
introduced through the bill, the home secretary would have to apply to a High
Court judge for a control order who would then have 48 hours to decide whether
to grant the order. The Home secretary is seeking house arrest and other powers
to replace indefinite jail terms for foreign terror suspects which the UK law
lords found breached human rights.
A local judge ruled
that the seizure of drugs worth $10 million, was not done in a legal
manner. Prosecutors say they will seek a lesser charge against the accused
charged with narcotics smuggling. A team of Law enforcement officials with a
drug dog team had recovered 94 kilos of coke inside the vehicle of the accused.
It was ruled that the 40 minute detention of the accused on a deserted stretch
was too long and too intrusive. While declaring the traffic stop as
unconstitutional, it was observed that trooper also lacked cause to search for
narcotics. Laying down a test for legal detention - there must be a reasonable
suspicion of criminal activity, like weaving or careless driving in this case; a
reasonable purpose for the intrusion; and third, a sound connection between the
objective of the stop and the intrusion, which also must be narrow and brief,
the judge remarked that the authorities did not have reason to suspect the
accused carried drugs.
The Israeli army has
been ordered by the Israeli Supreme Court, to reopen its investigation of the
shooting of a US peace activist in April 2003. The military has been given 90
days to interview six witnesses to the shooting incident, that left a US peace
activist with severe facial disfigurement after a violent altercation between
Palestinian protestors and Israeli soldiers. After the original inquiry, the
army announced that it had no knowledge of the shooting and declined to pursue
an official investigation. The orders were passed by the Supreme Court, on being
petitioned by a non-violent pro-Palestinian activist group for which he was
working at the time of the shooting.
A referendum on the
new EU charter, to be held in France in the month of May or June, will be
announced shortly. The path the holding of the referendum was cleared after the
French Parliament (the National Assembly and the Senate), in joint sitting
approved an amendment to the 1958 constitution that would permit the nation to
hold a referendum on approving the proposed European Constitution. The amendment
was made necessary after the French Constitutional Court held that the nation's
current constitution could not legally coexist under the proposed EU
constitution. Parliament voted for the amendment 730 to 66, with 96 abstentions.
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| DGFT
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Policy Circular No:
20/2004-2009 Dated 23.02.2005: The Directorate General of Foreign Trade had
issued Policy Circular No. 19 dated 11.11.2003 under which it was clarified that
Second Hand Photocopiers, Air Conditioners, Diesel Generating Sets, etc. will
not be permitted to be imported under EPCG Scheme of the Exim Policy 2002-2007
even if these are less than 10 years old. The intention of this Circular was to
restrict the import of such items under EPCG Scheme which are in the nature of
Consumer goods. The DGFT vide Policy Circular No. 20/2004-2009 Dated 23.02.2005
further clarifies that Second Hand Diesel Generating Sets of 10 KVA and above
have industrial application and import of second hand capital goods without any
age restriction is permitted under EPCG Scheme in the Foreign Trade Policy
2004-09 and so the same shall be allowed to be imported under EPCG Scheme
without any age restriction. However, second hand photocopiers, air conditioners
and diesel generating sets (below 10 KVA) etc. are covered under the definition
of 'second hand goods', therefore their import shall not be permitted.
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| Insurance Regulatory and Development
Authority
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Circular No.: IRDA/Life/R&SOs/076/2004-05
Dated: 23.02.2005: The Insurance Regulatory and Development Authority vide the
above circular clarifies the obligations of insurers to Rural or Social Sectors
in compliance with the IRDA (Obligations of Insurers to Rural or Social Sectors)
Regulations, 2002 and IRDA (Obligations of Insurers to Rural or Social Sectors)
(Amendment) Regulations, 2004. The circular clarifies that as per sub regulation
3 (b) of the IRDA (Obligations of Insurers to Rural or Social Sectors)
Regulations, 2002 the obligations of insurers towards social sector is (I) Five
thousand lives in the first financial year;(II) Seven thousand five hundred
lives in the second financial year;(III) Ten thousand lives in the third
financial year;(IV) Fifteen thousand lives in the fourth financial year; and (V)
Twenty thousand lives in the fifth year. The term “lives” refers to new
lives insured during the financial year and in force as on 31st March of the
year. This will come in force in the financial year 2005-2006.
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RBI |
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Circular No:
A.P.(DIR Series) Circular No.34 Dated 18.02.2005: The Reserve Bank of India vide
its circulars A.D. (G.P. Series) Circular No.7 dated March 6, 1998 and A.P. (DIR
Series) Circular No.2 dated July 9, 2004 had allowed nominated agencies,
approved banks, Export Oriented Units and Units in Special Economic Zones to
import gold under different arrangements. Para 4.77.2 and 4.77.3 of the Foreign
Trade Policy 2004-09 of the Government provides that the exporter shall have the
flexibility to fix the price and repay the gold loan within 60 days from the
date of export. This period of 60 days stipulated in the foreign trade policy
has been enhanced by which the period for fixing the price and repayment of the
Gold Loan has been increased to 180 days from the day of the export. As a
result, the maximum period of gold loan becomes 240 days. The Reserve Bank in
line with the foreign trade policy of the government has issued guidelines vide A.P.(DIR Series) Circular No.34 Dated 18.02.2005. As per the
guidelines, Nominated agencies / approved banks can import gold on a loan basis
for lending to exporters of jewellery under the above scheme but EOUs and units
in SEZ who are in the Gem and Jewellery sector can import gold on loan basis for
manufacturing and export of jewellery on their own account only. Accordingly,
the maximum tenor of gold loan would be as per the Foreign Trade Policy
2004-2009, or as notified by the Government of India from time to time in this
regard. Authorised Dealers may open Standby Letters of Credit (SBLC), for import
of gold on loan basis as per FEDAI guidelines. The tenor of the SBLC should be
in line with the tenor of the gold loan and it can be opened only on behalf of
entities permitted to import gold on loan basis. Further, the SBLC should be in
favour of internationally renowned bullion banks only. Also authorized dealers
are required to maintain adequate documentation with them to uniquely link all
imports with the SBLC issued for the import of gold on loan basis.
Circular No:
RPCD.AML.BC.NO.80/07.40.00/2004-05 Dated 18.02.2005: The National Bank for
Agriculture and Rural Development had issued guidelines known as ‘Know Your
Customer’ (KYC) guidelines for banks to follow a systematic customer
identification procedure in the matter of opening of accounts and monitoring
transactions of a suspicious nature. The RBI vide Circular No.
RPCD.AML.BC.NO.80/07.40.00/2004-05 Dated 18.02.2005 issued guidelines under
Section 35A of the Banking Regulation Act, 1949 advising Banks to ensure that a
proper policy framework on ‘Know Your Customer’ and Anti-Money Laundering
measures are formulated and put in place with the approval of the Board within
three months of the date of the above circular and that the provisions of the
above circular are fully compliant before December 31, 2005. Accordingly, Banks
are advised to treat the information collected from the customer for the purpose
of opening of account as confidential and not divulge any details for cross
selling or any other purposes. Banks should continue to ensure that any
remittance of funds by way of demand draft, mail/ telegraphic transfer or any
other mode and issue of travelers’ cheques for value of Rupees fifty thousand
and above is effected by debit to the customer’s account or against cheques
and not against cash payment and that the provisions of Foreign Contribution and
Regulation Act, 1976 wherever applicable are adhered to strictly.
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| Telecom
Regulatory Authority of India (TRAI)
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Circular No.:
310-7(2)/2004-Eco. Dated: 18.02.2005: The Telecom Regulatory Authority of India
had issued a directive to M/s Bharti Cellular Ltd. (Airtel) on 26/10/2004 that
it shall stop the levy of Rs.50/- and Rs.200/- in the case of prepaid and
postpaid customers and that it shall also refund the one time charge levied from
the existing customers since the launch of the new tariff plans. The Authority
had directed Bharti Cellular Ltd that in the process of refund it shall give
wide publicity in the media and newspapers and its own websites so as to enable
all the customers to avail the benefit of refund. M/s Bharti Cellular Ltd. filed
the compliance report on 15/11/2004 and furnished detailed
information/clarifications on the refund process. The Authority after
considering the submissions of M/s Bharti Cellular Ltd. arrived at the
conclusion that the compliance by Airtel was incomplete because 1,15,652
customers who had left the Airtel network are yet to be provided with the refund
and no steps have been taken to reach out to these customers who are eligible
for refund. In the case of eligible customers, the service provider has made the
refund conditional by urging them to rejoin the network if they want to claim
the refund. Apart from the press release issued on 26/10/2004, Airtel has not
taken any steps to give wide publicity in the media/newspapers for the benefit
of the subscribers. Therefore, the Authority vide the above circular directed
M/s Bharti Cellular Ltd to give wide publicity so as to enable the customers to
avail the benefit of the refund and the refund offered to the customers shall be
unconditional without any pre-requisite that they rejoin the Airtel network for
claiming the refund. Also, the subscribers eligible shall be given a reasonable
time (one month from the date of Advertisement) to claim the refund.
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| SEBI |
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Secondary Market Division
Circular No: MRD/DoP/SE/Cir-07/2005
Dated 23.02.2005: The Advisory Committee of Derivatives and Market Risk
Management of SEBI (RMG) with the objective of streamlining the risk management
framework across the cash and derivatives markets and consolidating all the
existing circulars on risk management for the cash market has recommended a
comprehensive risk management framework for the cash market. SEBI vide Circular
No. MRD/DoP/SE/Cir-07/2005 Dated 23.02.2005 issues guidelines on the above to
all stock exchanges that they shall put in place the necessary systems to ensure
the operationalization of the comprehensive risk management framework with
effect from May 18, 2005 and that the same shall be in line with the relevant
provisions. Further, the stock exchanges shall take adequate steps to make
necessary amendments to the relevant bye-laws, rules and regulations for the
implementation of the above decision. The stock exchanges shall also bring the
provisions of this circular to the notice of the member brokers/clearing members
of the Exchange and also to advertise the same on the website. They shall also
communicate to SEBI, the status of the implementation of the provisions of this
circular in the Monthly Development Report.
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| Supreme
Court |
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Husband of
the respondent herein had submitted his resignation from service, however a
month later. He sought to withdraw it, on the ground, that he had submitted his
resignation at a time when he was mentally disturbed as he was under heavy
medication, owing to a medical ailment. The Bank relieved him from service since
he had not submitted any document in support of his claim.
The High
Court, ruled that since resignation had been withdrawn before it was accepted,
the order of release from service was illegal. The Petitioner herein challenged the order of
the High Court on the ground that, after having withdrawn the retiral benefits
the order releasing him from service could not have been challenged
The Apex Court
allowed the appeal, it was held that since the withdrawal of resignation could
not be justified, the appellant was right in having acted upon the resignation
The appellant
herein, along with 5 others was convicted by the trial court for an offence of
having committed rioting and murder, being a part of an unlawful assembly, they
was sentenced to life imprisonment. In appeal, the High Court acquitted 3 of the
accused, however conviction of the appellant was maintained.
An appeal was
preferred before the Supreme Court on the ground that in view of the
inconsistencies in the evidence of the prosecution, they had failed to prove
their case beyond reasonable doubt.
The Apex Court
dismissed the appeal, it was observed that since two courts below had
concurrently accepted the evidence to sustain the charge, meticulous analysis of
the evidence was not called for.
The respondent
herein, was terminated from service on the allegations that he had used abusive
and filthy language against his supervisor. A charge sheet was issued and after
disciplinary inquiry, the workman was dismissed from services. The Labour Court
decided the industrial dispute with the finding that the punishment imposed was
disproportionate, therefore it was set aside. The management moved the High
Court, which refused to interfere in the matter.
An appeal was
preferred before the Supreme Court on the ground that the Labour Court had
exceeded its jurisdiction. It was contended that the orders of the court below
would undermine discipline in the industry.
The Apex Court
disposed of the appeal with the observations that the use of abusive language
against a superior officer, in the presence of his subordinates, can not be
termed to be an indiscipline calling for lesser punishment.
The government had
issued a notification aimed at encouraging the manufacture of sugar during lean
period. On the basis of the said notification, the appellant herein, claimed
rebate in excise duty. The rebate was to be calculated on the excess of average
production during the lean period in the last three years.
Since there had been no production during the last two years, the appellant took
the production in the current year as the average, the revenue disputed this
method of calculation.
The Apex Court,
decided the dispute in favour of the revenue. It was observed that the keeping
in view the object of the notification, benefit could not have been extended to
those factories, which had nil production during previous years.
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| High Courts |
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Andhra
Pradesh
The minor son of the
respondent had died in an accident. The claim for compensation was opposed by
the insurance company, stating that the incident had occurred solely due to the
negligence of the respondent herein. The Tribunal awarded a compensation of Rs
1,50,000/- to the Tribunal awarding an amount exceeding the claim so long as the
evidence in support was sufficient. claimants.
The appellant
challenged the correctness of the verdict, on the ground that the compensation
granted, was actually higher than the compensation claimed.
The Andhra Pradesh
High Court, dismissed the appeal with remarks that there was no bar on the
Delhi
Petitioners husband,
had purchased a life insurance policy from the respondent. After his death, the
claim of the petitioner was declined, on the ground that the insured had
suppressed the fact, that he had failed to disclose that he had been operated
for a tumour. The district forum and the state commission dismissed the
complaint.
In a revision
petition, it was contended on behalf of the petitioner that since the insured
had died of cardiac arrest and not tumour, the non-disclosure should be of no
consequence.
The National
Consumer Disputes Redressal Forum, New Delhi, disposed of the petition with the
observations that suppression of material facts would fatal to the claim of the
petitioner.
Rajasthan
The respondent
herein , the assessee, claimed deduction under section35(1)(iv) of the Income
Tax Act 1961 for the expenditure incurred on research and development. The claim
was rejected by the Assessing Officer on the ground that the assessee has not fulfilled the
conditions of the Department of Scientific and Industrial Research and hence
deduction cannot be allowed.
On appeal the Commissioner of Income
Tax (Appeals)
set aside the order and held that the assessee is entitled for deduction under
section 35(1)(iv) of the Income Tax Act ,1961. The Research &Development unit of the assessee
is recognized by the prescribed authority, as such was covered under the
head 'business expenditure'. Against this revenue preferred an
appeal.
The ITAT ,Jodhpur
Bench dismissed the appeal. The Tribunal held that under section 35(1)(iv) of
the Income Tax Act, 1961, it is not mandatory that the plant and machinery must
be put to use. It is enough if the expenditure is incurred on purchase of plant
and machinery to be used in the R&D unit.
The Tribunal had passed an
order against the assessee, an application was
filed seeking amendment of the order. It was contended, that the order had
been passed ignoring specific documents submitted by the assessee, and
that some material had been considered by the tribunal without providing the
assessee access to the same. This amounts to error apparent on the face of the
record
The Income Tax Appellate
Tribunal, Jaipur Bench, disposed of the application with the remarks that, since bulky materials were
supplied by the parties, it is neither possible nor feasible to mention
everything contained in it, in the order nor is it possible to record every
proceeding of the court. Even if there is an oversight of fact it cannot
constitute an apparent mistake. This principle finds support from the maxim de
minimis non curat lex which means law takes no account of very trifling
action.
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