[No.204]

Supreme Court

• Bal Ram Bali and Anr. Vs. Union of India (UOI)

Petitioners filed the present petition for issuing a writ of mandamus for directing the respondent government for ensuring and guaranteeing a total ban on slaughter of animals like cows, buffaloes and horses as the slaughter of said animals reflects anti-Hindu sentiments. Held, it is not within the domain of the Court to issue a direction for ban on slaughter of cows, buffaloes and horses as it is a matter of policy on which decision has to be taken by the Government. That apart, a complete ban on slaughter of cows, buffaloes and horses, as sought in the present petition, can only be imposed by legislation enacted by the appropriate legislature. Courts cannot issue any direction to the Parliament or to the State legislature to enact a particular kind of law. Therefore, court cannot grant any relief as prayed for by the petitioners. Petition is dismissed.

• M.C. Chamaraju V Hind Nippon Rural Industrial (P) Ltd.

Appellant employee was working with respondent company and was transferred to its different units located at different places. However, for some relevant period as appellant - employee was neither paid his salary nor served with any order of termination or dismissal, the appellant addressed a letter asking the respondent -management to settle his dues and to pay gratuity under the Act. But it was not paid. Appellant therefore, approached the Controlling Authority which held that the appellant was entitled to gratuity. Being aggrieved by the order of the Controlling Authority, the respondent-Company filed an appeal before the Appellate Authority which dismissed the appeal. The respondent then challenged the said order by filing a writ petition in the High Court but the learned Single Judge also dismissed the petition. Therefore, the respondent filed an intra court appeal which was allowed by the Division Bench and it held that the application filed by the workman was liable to be dismissed. Hence, present appeal. Appellant contended that the Division Bench had virtually re-appreciated the evidence which could not have been done and therefore, the impugned judgment deserves to be set aside. It was further submitted that a finding of fact was recorded by the Authorities that the different units of the respondent where the appellant had worked, were 'one' and there was 'functional unity' and as such appellant was entitled to gratuity since he had worked for more than five years. Such finding could not have been disturbed by the Division Bench. Held, the question which was raised before the Authorities under the Act was whether the appellant had completed five years' continuous service so as to be eligible to claim gratuity under the Act. The Authorities on the basis of the evidence adduced before them, held that various units where the appellant had worked were "one and the same" and hence the entire service of the workman ought to be considered and taken into account for the purpose of computation of benefit of gratuity. On the basis of the above reasoning, the Controlling Authority as well as the Appellate Authority held that the appellant was qualified and entitled to gratuity under the Act. However, on appeal the Division Bench re-visited the evidence taken by the Controlling Authority as also by the Appellate Authority which should not have been done. The High Court was exercising power of 'judicial review' which, in its inherent nature, has limitations. Therefore, the Division Bench was wrong in setting aside all the orders and in allowing the appeal of the Management and in dismissing the application filed by the workman.

High Courts

Bombay

• Charak Pharmaceuticals (India) Limited and Anr v. Glenmark Pharmaceticals Limited

Plaintiffs, owners of registered trademark "EVANOVA" filed suit for trademark infringement against defendants. Plaintiffs claimed that defendants allegedly infringed plaintiff's registered trademark "EVANOVA" by using a deceptively similar trademark " ECONOVA" in respect of similar product and prayed for ad interim relief. Defendants challenged same on ground that the plaintiffs had not approached court with due diligence as there was delay in filing suit. Hence, present suit. Held, in the present case it is seen that in spite of knowledge of infringement in June 2006, the plaintiffs have chosen to file the present suit only in June 2007 and that too without offering any explanation as to what prevented the plaintiffs to institute the suit in earlier point of time. It is therefore, a clear case of inaction on the part of plaintiffs. In as much as, request for ad-interim relief ought to be considered only if the plaintiffs had approached the Court with utmost dispatch. If the plaintiffs fail to show any urgency, as in this case for almost a year, will not be entitled for the discretionary relief. Therefore, prayer for ad interim relief is rejected.

Madras

• Philip Manovan Jebaraj v. State rep. by its Secretary to Government, Prohibition & Excise Department, Chennai and The Commissioner of Police, Greater Chennai, Egmore, Chennai

Petitioner-detenu was detained under the provisions of the Tamil Nadu Act 14 of 1982. Allegedly, the detenu along with other accused had tried to cheat the public by collecting money from several people on the pretext of constructing houses for the poor by forming a Trust. Detenu challenged his detention on the ground that the respondent authorities had not considered his representation against detention within reasonable time. Hence, present petition. Whether the order of detention is liable to be quashed on ground that there was considerable delay in disposing off the representation made by the detenu against his detention? Held, it has been laid down in the decisions of the Hon'ble Supreme Court as well as by this Court that the representation made on behalf of the detenu is required to be disposed of expeditiously, without any delay and if there is any delay at any stage, there should be proper explanation for such delay. In the present case, even though admittedly, remarks had been received on 11th December, 2006, the file was submitted only on 18th December, 2006, after one week. There is no explanation forthcoming, explaining this delay. Therefore, in view of the unexplained delay, the detention order is liable to be quashed. Petition is allowed.

• P. Subramaniam v. K. Naravana Bhat

Appellant-complainant filed suit against dishonour of cheques provided by respondent-accused on account of insufficient funds. Trial Court after considering the evidence on record held that the respondent- accused was not guilty under Section 138 read with 142 of Negotiable Instruments Act and accordingly, acquitted the accused. Appellant contended that the Trial Court failed to note that Section 139 of Cr.PC creates a statutory presumption that the cheque is always issued in discharge of debt or other liability and that the Trial Court wrongly shifted the burden of proof on the appellant-complainant. Hence, present suit. Respondent -accused however challenged same on ground that after dishonour of the cheque the appellant had not issued a proper legal notice of the same. Held, it is mandatory on the part of the complainant to issue proper legal notice as contemplated under the Section so as to maintain the complaint under Section 138 of Negotiable Instruments Act. In the instant case the respondent-accused had clearly stated that he had received only an empty cover sent by registered post with acknowledgement as legal notice. In such circumstance, the burden is upon the appellant /complainant to prove that proper notice was served on the respondent / accused and not empty cover. The mandatory provision of Section 138(b) of Negotiable Instruments Act has not been complied with by the appellant / complainant. Therefore, there is no error or perverse finding in the judgment of acquittal recorded by the Trial Court and hence the appeal fails.

Press Information Bureau

• Reverse Mortgage Scheme for Senior Citizens

PIB dated 21.08.2007: The "National Housing Bank will introduce a novel financial product for senior citizens i.e. a 'reverse mortgage' under which a senior citizen who is the owner of a house can avail of a monthly stream of income against the mortgage of his/her house, while remaining the owner and occupying the house throughout his/her lifetime, without repayment or servicing of the loan". The Reverse Mortgage Loans are to be extended by Primary Lending Institutions (PLIs) viz. Scheduled Banks and Housing Finance Companies (HFCs) registered with NHB. The main features of the RML are it aims at partially meeting the financial needs of Senior Citizens who may, otherwise be not eligible for availing any kind of financial assistance under conventional bank loan schemes. RML enables monthly payments that supplement the income of senior citizens during their lifetime when their income sources are generally restricted or limited. It obviates the need for senior citizens to meet emergent financial needs by selling their house and perhaps moving to a smaller house possibly located far away, to raise money. It helps in unlocking the wealth otherwise locked in a residential asset. Expenses like health care and other needs which are generally expected to rise with ageing can be met from the payments received under RML.

• BIS Certification mandatory for 11 food articles under the PFA Rules, 1955

PIB dated 22.08.2007: It is notified that the Ministry of Health & F.W. has made BIS Certification mandatory in respect of 11 food articles under the PFA Rules, 1955. Under Section 33 of the BIS Act, 1996, the BIS can take action in case of violations of provisions under Section 11 & 12 of the BIS Act, 1996. The list of products covered under PFA Act, 1954 requiring BIS Mandatory Certification include Milk Powder, Condensed milk, partly skimmed and skimmed condensed milk, Milk-cereal based wearing foods, Processed cereal based complementary foods for infants, Sweetened ultra high temperature treated condensed milk, Skimmed milk powder, standard grade, Skimmed milk powder, extra grade, Partly skimmed milk powder, Infant milk substitute, milk protein based, Packaged Natural Mineral Water and Packaged Drinking Water (Other than Packaged Natural Mineral Water).

• Merchant Shipping Amendment Bill

PIB dated 22.08.2007: The Merchant Shipping (Amendment) Bill, 2004 further to amend the Merchant Shipping Act, 1958 and Indian Ports Act, 1908 was introduced in the Lok Sabha on 14th August, 2007 and the Bill was passed by the House.The International Maritime Organisation (IMO) has introduced new Maritime Security Regulations - International Code for the Security of Ships and of Port facilities (ISPS Code) from 1st July, 2004. India also implemented ISPS Code from this date. Enforcement of ISPS Code requires legislative measures which have necessitated amendments in certain provisions of the Merchant Shipping Act and Indian Port Act to incorporate safety related provisions.

RBI

DBOD

• Guidelines on Fair Practices Code for Lenders - Furnishing Copy of Loan Agreement

Notification No. DBOD.Dir.(Leg).BC.No. 28/09.07.005/2007-08 dated 22.08.2007: The Reserve Bank in terms of Circular DBOD. Leg. No.BC. 104 /09.07.007/2002-03 dated May 5, 2003 had issued guidelines issued to banks / FIs for framing the Fair Practices Code for Lenders. In terms of the above Circular, banks / FIs were advised that terms and conditions and other caveats governing credit facilities given by banks/ financial institutions arrived at after negotiation by lending institution and the borrower should be reduced in writing and duly certified by the authorised official. Banks / FIs were further advised that a copy of the loan agreement along with a copy each of all enclosures quoted in the loan agreement should be furnished to the borrower. However, it is understood that some banks are furnishing a copy of the loan agreement only on request made by the borrowers. Therefore, RBI directs that not furnishing a copy of the loan agreement or enclosures quoted in the loan agreement is an unfair practice and this could lead to disputes between the bank and the borrower with regard to the terms and conditions on which the loan is granted. Banks / FIs are therefore advised to invariably furnish a copy of the loan agreement along with a copy each of all enclosures quoted in the loan agreement to all the borrowers at the time of sanction / disbursement of loans.

Cases

• Tsai-Vi Yang v. Fu-Chiang Tsui

Plaintiff-mother and defendant-father were living separately in Canada and US respectively. The child was being brought up the plaintiff-mother in Canada. Plaintiff-mother then fell ill and requested the defendant-father to take care of the child until she recovered from her health problems. However, upon recovery of the plaintiff-mother, defendant-father refused to part with the custody of the child. Therefore, plaintiff-mother filed a suit for custody of the child. The District Court held that the overwhelming evidence in the case demonstrated that the parties only intended for the child to stay with the father for two or three months until the mother recovered. The parents actually only intended for US to become the child's home only if the mother passed away because of her illness. Based on these facts, the District Court determined that Canada was the child's habitual Residence. The District Court also found that the mother was exercising her custody rights at the time of retention. Therefore, the District Court held that the mother had satisfied her burden under the Hague Convention of proving that the child was wrongfully retained and ruled in favour of the plaintiff mother. Hence, present appeal. Held, a person claiming that a child has been wrongfully removed to or retained in the United States can commence judicial proceedings under the Convention by filing a petition for the return of a child in a state or federal court which has jurisdiction where the child is located. 42 U.S.C. § 11603(b). In order for the petition to be granted, the petitioner must prove by a preponderance of the evidence that the removal or retention was wrongful. In this case it is undeniable that Canada was the child's habitual residence before she went to stay with the father in the United States. As there was no shared mutual intent by the parents for the child to abandon that prior residence, the District Court's determination that Canada was the child's habitual residence immediately before she was retained by the father is correct. Therefore, the mother met her burden of proving the child's habitual residence. Therefore, judgement of lower court is affirmed.

• Central Manufacturing, Incorporated v. George brett and brett brothers Sports International, Incorporated

Defendants were engaged in manufacture and marketing of different models of baseball bats for amateur and professional level of baseball. Plaintiff Corporation also involved in similar business filed a trademark application for the using the word "Stealth" mark on its bats and entered into licensing agreement with another company for use of the said word. Thereafter, plaintiffs came to know that defendants were already using said name in regard to similar products and so filed suit for trademark infringement and unfair competition against defendants. However, trial court ruled in favour of defendants on ground that plaintiffs had not submitted enough convincing evidence to establish bonafide prior use of the mark "Stealth" on their bats. Hence, present appeal. Held, An action for trademark infringement can only succeed if, among other things, the plaintiff owns the mark. Registration provides prima facie evidence of ownership, but this can be rebutted by competent evidence as per U.S.C. § 1115(a). In this plaintiffs filed an infringement lawsuit without evidence of any sales of baseballs or baseball bats to support its claim to rights in the "Stealth" mark for such products and had not be able to produce evidence to substantiate its claim. Therefore, judgement of lower court is affirmed.

News

• Proposed control orders for violent offenders violate civil liberties: UK judges

Senior judges on the UK Council of HM Circuit Judges have warned UK lawmakers that the judiciary may balk at a plan to add new control orders to a draft criminal justice and immigration bill. Lawmakers have proposed adding a violent offender order, which would impose tough restrictions on the activities of released offenders for at least two years, with no statutory endpoint. While no specific restrictions have been set, the judges said that the proposed orders, which could mandate compulsory mental health treatment or ban contact with the offender's family, unduly restrict former offenders' civil liberties. The judges argued that professional full-time judges rather than magistrates should determine when to impose the violent offender order, and complained that the proposal does not guarantee legal representation for offenders. Control orders were first introduced by the Tony Blair government in 2005, and apart from being politically controversial have already run into repeated problems in the courts.

• Pakistan reaffirms rejection of nuclear weapons treaty after latest missile test

The government of Pakistan has reiterated its refusal to sign the Nuclear Non-Proliferation Treaty in the wake of its latest test of a nuclear-capable missile, saying that nuclear arms are vital to a stable balance of power. Pakistan Ministry of Foreign Affairs spokeswoman said that India - Pakistan's bitter adversary since partition of the subcontinent in 1949 - had rebuffed numerous appeals to sign the treaty, and that Pakistan was not obligated to become a party since India refused. She added that Pakistan's nuclear program was intended as deterrence against attack, and cited this as the primary reason that the country had begun conducting nuclear tests in 1998 after India tested its own nuclear bomb. She did, however, support a suggestion by the head of the International Atomic Energy Agency that the NPT should be adjusted to take into account "ground realities." Pakistan test-fired its new air-launched Hatf-8 "Ra'ad" cruise missile.

• Federal appeals court orders re-sentencing of former Wal-Mart exec

The US Court of Appeals for the Eighth Circuit ordered former Wal-Mart vice chairman Tom Coughlin to face a new sentencing hearing, holding that his sentence was too lenient and improperly departed from the punishment prescribed by the Federal Sentencing Guidelines. Coughlin was sentenced to five years probation, including 27 months of house arrest, in August 2006 after pleading guilty to six felony fraud and tax charges in January 2006 for stealing money, merchandise and gift cards from the store and filing a false tax report. Wal-Mart lawyers referred Coughlin to federal prosecutors after they uncovered $500,000 in losses due to store vouchers that Coughlin used to purchase items and funds he embezzled to pay for the care of his hunting dogs, an upgrade to his truck, and the lease for a private hunting area.

• Bangladesh Supreme Court orders former PM Hasina to be held without bail

The Bangladesh Supreme Court has overturned a court order granting bail to former Bangladeshi Prime Minister Sheikh Hasina Wajed ruling that she should remain in prison as she awaits trial on extortion charges. Earlier this month, the Appellate Division of the Supreme Court ruled Hasina could be detained and prosecuted under emergency laws declared by the interim emergency government, overturning the High Court Division's ruling that suspended Hasina's extortion trial. Hasina's lawyers had argued that she cannot be charged under the new laws because her alleged offenses originate from circumstances dating over eight years ago, before the government came to power in January. The interim emergency government, which has the backing of the military, has used its anti-corruption campaign to justify the emergency laws, and has also filed tax evasion charges against Hasina's rival, former Prime Minister Begum Khaleda Zia.

• China legislature considering tougher fines for water polluters

Chinese state media reported that the National People's Congress is considering new legislation that would increase penalties for companies that pollute the nation's waterways. The new law would remove present pollution fine caps and allow the government to fine companies 20-30 percent of the direct financial loss caused by their polluting. China's population amounts to 22 percent of the world population, but the country holds only 8 percent of the world's water making water pollution a growing concern. China has recently committed itself to reducing major pollution by 10 percent between 2006 and 2010.