[No.205]

Supreme Court

• Indian Bank and Anr. Vs. N. Venkatramani

Respondent was working with the appellant - Bank. The terms and conditions of grant of pension to the employees of the Bank are governed by the Indian Bank Employee's Pension Regulation 1995. Respondent requested for his voluntary retirement and same was accepted. Respondent then filed an application for grant of pension on the premise that he was eligible therefor. It was rejected on the ground that he had not completed 15 years of service. A writ petition filed by him was dismissed by a learned Single Judge. However, an intra- court appeal filed thereagainst has been allowed by a Division Bench of the High Court. Hence, present appeal. Appellant challenged the decision of the Division Bench of the High Court on ground that the High Court committed a manifest error in coming to the aforementioned conclusion as it failed to take into consideration that qualifying service for obtaining a pension was minimum fifteen years of service and Regulation 18 providing for 'broken period' would not come within the purview thereof. Held, as per Regulation 18, if the period of service of an employee includes broken period of service less than one year, then if such broken period is more than six months, it shall be treated as one year and if such broken period is six months or less it shall be ignored. It is equally well settled that in interpreting a statute, effort should be made to give effect to each and every word used by the Legislature. A literal interpretation should be given to a statute if the same does not lead to an absurdity. Therefore, this is not a case where discretionary jurisdiction under Article 136 of the Constitution of India should be exercised. Therefore, appeal dismissed.

• S.T. Krishnappa V Shivakumar and Ors.

Plaintiff was given in adoption by his genetive parents-Defendant in a ceremony. However, the adoption deed did not contain any clause that the said adoption was "dvyamushyayana" adoption and that the plaintiff would be entitled to a share in his genitive parent's property. Thereafter, plaintiff claimed share in property as one of the coparcener. Trial Court and Appellate Court negatived the claim of plaintiff. Hence present appeal. Whether plaintiff was entitled to share as a coparcener. Held, the Apex Court in Rajgopal (Dead) by LRs. v. Kishan Gopal and Anr. held that in cases of dvyamushyayana form of adoption there must be a agreement stating that the person given in adoption should be the son of both the natural father as well as adoptive father and such an agreement must be proved by the party alleging it. As per Section 483 (3) of the Act where a person gives his only son in adoption to his brother, adoption must be presumed to be in the dvyamushyayana form unless a stipulation is proved that the adoption was in ordinary form. Hence the plaintiff not entitled for share as coparcener. Appeal is dismissed.

High Courts

Gujarat

• Abdul Hannal Abdul Karim Vora v. State Of Gujarat and Anr

Appellant-convict was accused of offences of murder, kidnapping and attempted sodomy of deceased. Trial court convicted appellant for murder and kidnapping of deceased but acquitted him of the alleged offence of Sodomy. Hence, present appeal. Appellant-convict challenged his conviction on ground that at the time of his conviction by Trial Court he was a juvenile and therefore, the trial court could not convict him. Held, the Juvenile Justice (Care and Protection of Children) Act, 2000 has a special provision made in Section 20 in respect of pending cases which provides that notwithstanding anything contained in the Act, all proceedings in respect of a juvenile pending in any Court in any area on the date on which the Act came into force in that area, shall be continued in that Court as if the Act had not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and then instead of passing any sentence in respect of the juvenile, forward the juvenile to the Juvenile Board which shall pass orders in respect of punishment to that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under Act that a juvenile has committed the offence. Therefore, accused referred to the Juvenile Justice Board under Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 for decision in accordance with law.

• The State of Gujarat v. Babarbhai Vechatbhai Vankar and Ors.

Appellant-complainant and respondent-accused were involved in a land dispute. Thereafter, complainant filed a complaint against accused stating that the accused persons entered complainant's house and caused bodily injury to his person and family. Thereafter, complainant modified the complaint stating that the accused robbed him of his belongings along with causing bodily harm. Trial court upon appreciation of evidence acquitted the respondent- accused. Hence, present appeal. Appellant urged appellate court to re-appreciate the evidence as trial court has wrongly appreciated the evidence. Whether an appellate court can re-appreciate the evidence already considered by a Trial Court?. Held, the mere fact that a view other than the one taken by the Trial Court can be legitimately arrived at by the Appellate Court on reappraisal of the evidence, cannot constitute a valid and sufficient ground to interfere with the order of acquittal unless the Appellate Court comes to the conclusion that the entire approach of the Trial Court in dealing with the evidence was patently illegal or the conclusion arrived at by it were wholly untenable. But, on scrutiny of the reasons if it is found by the Appellate Court that the findings of the Trial Court in respect of acquittal are palpably wrong, manifestly erroneous or demonstrably unsustainable, then and then, interference in the order of acquittal is permitted. In the present case, the reasons assigned and findings arrived at by the Trial Court are not manifestly erroneous, palpably wrong or demonstrably unsustainable. Therefore, there is no merit in the present appeal. Appeal dismissed.

Delhi

• Pepsico Inc. and Ors. v. Sunrise Beverages

Plaintiff-Corporation registered in U.S filed suit against defendant for infringement of their trademark 7UP/SEVEN-UP for aerated drinks. Plaintiff alleged that defendant was using a deceptively similar trademark "SEVENth UP/7th UP" in relation to aerated drinks. Hence, present suit. Defendants challenged the suit on the ground that the Delhi High Court has no jurisdiction over the matter as none of the parties were carrying on business in Delhi. Whether the court has territorial jurisdiction to entertain the present suit? Held, plaintiffs pointed out that the damage to the mark of the plaintiffs has occurred all over India including Delhi and that wide sales and manufacture of products including Delhi is the own case of the defendant, therefore, Delhi would certainly be one of the Courts having jurisdiction in this behalf. In Pfizer Products, Inc v. Rajesh Chopra and Ors it was observed that a threat of selling the offending goods in Delhi would in itself confer jurisdiction in the Courts in Delhi to entertain a suit claiming an injunction in respect thereof. In view of the aforesaid legal position and there being absence of any material in support of defendant's case there is no impediment to this court in entertaining the suit.

Press Information Bureau

• Competition Amendment Bill - 2007 introduced in the Lok Sabha after withdrawing the Competition Amendment Bill - 2006 

PIB dated 29.08.2007: The Competition (Amendment) Bill, 2007 was introduced in the Lok Sabha after withdrawing the Competition (Amendment) Bill, 2006. The Government had enacted the Competition Act in 2002 to provide for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets. However, the Competition Commission of India (CCI) could not be made fully functional due to filing of a writ petition before the Hon'ble Supreme Court against certain provisions of the Act, Rules framed there under. The Supreme Court closed the writ petition and left unanswered all the questions regarding validity to be decided after the proposed amendment of the Act. Keeping in view the judgement of the Hon'ble Supreme Court, the Competition (Amendment) Bill, 2006 was introduced in Lok Sabha and the same was referred for examination and report to the Parliamentary Standing Committee on Finance. Taking into account the recommendations of the Committee and the legal challenges and to make the CCI fully operational on a sustainable basis, the Competition (Amendment) Bill, 2007 has been introduced.

• Factories Act, 1948 Amended to Provide Flexibility in the Matter of Employment of Woman During Night

PIB Dated 30.08.2007: The Union Cabinet gave its approval for introduction of official amendments to the Factories (Amendment) Bill 2005 pending in the Lok Sabha since 16.8.2005 to amend section 66 of the Factories Act, 1948. Accordingly, the amendment will provide flexibility in the matter of employment of women during night hours.

SEBI

Press Release

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

Press Release No. PR No.242/2007 Dated 24.08.2007: In an effort to provide a faster and cost effective method of raising capital by listed companies, SEBI has decided to introduce Fast Track Issuance of Securities (FTIs). This mode of issuance was recommended by the Primary Market Advisory Committee (PMAC) and will be available to listed companies who satisfy are listed on BSE or NSE, for at least three years; has excellent track record in redressing Shareholders / Investor Grievances; has an average free float market capitalization of at least Rs.10,000 crore or more during last one year; is compliant with the listing agreement; promoter group shares are necessarily held in dematerialized form; trading on the stock exchanges constituted at least 2% of total listed shares during the previous one year; impact of Auditors Qualifications in the audited accounts, if any, has not to exceeded 5% of the Net Profit / Net Loss after Tax and no prosecution proceedings or show cause notice issued by SEBI is pending against the company / its promoters / whole time directors.

SMD

• Dissemination of Information on Debentures

Circular No. MIRSD/DPS III//Cir 11/07 Dated 06.08.2007: SEBI has notified that the companies issuing debentures and the respective debenture trustees/stock exchanges shall disseminate all information regarding the debentures to the investors and the general public. Debenture trustee shall disclose the information to the investors and the general public by issuing a press release in any of the following events namely default by issuer company to pay interest on debentures or redemption amount; failure to create a charge on the assets and revision of rating assigned to the debentures. Such information shall also be placed on the website of the debenture trustee, the issuer company and the stock exchanges. Further, all information/reports on debentures issued including compliance reports filed by the companies and the debenture trustees shall be made public by disseminating on the websites of the companies and the debenture trustees. The same shall also be submitted to the stock exchanges for dissemination through their websites. The aforementioned requirements are in addition to the requirements specified under SEBI (Debenture Trustees) Regulations, 1993 and also in addition to the requirements mentioned under Listing Agreements for Debentures issued through Public/Rights Issue and for privately placed debentures.

Cases

• Harley-Davidson Motor Company, INC., v. Top Quality Service., Inc

Plaintiff-appellants are owners of registered trademark "HOG" and "H.O.G" in relation to motorcycles and motorcyclist club. Defendants used a similar tradename "HOG ON THE HIGH SEAS" in relation to cruise for motorcyclists. Plaintiffs filed opposition proceedings against defendants for allegedly trying to register the similar trademark "HOG ON THE HIGH SEAS". However, District Court ruled in favour of defendants and held that plaintiff's mark was generic and therefore, could not be protected. Hence, present appeal. Whether plaintiff's tradename is generic? Held, generic term is commonly used as a name for the seller's goods, while a descriptive term names a characteristic of a particular product or service. The word "hog" is not commonly used as a name for a motorcyclist club. It is the name for a motorcycle. As such, plaintiff's use of the word "hog" to refer to the plaintiff's Motorcycle Owners Group is not generic; rather, it is descriptive because it describes the club's members i.e. people who enjoy motorcycles. Defendants argued that it used the word 'hogs' generically and thus cannot be infringing on plaintiff's mark.. However, this argument lacks merit. Though a consumer might conclude that defendant's trade name means "Motorcycles on the High Seas," that is not what plaintiff is selling. Defendant's service does not invite motorcycles to travel on the ocean; it invites motorcyclists to travel on the ocean. As a result, its mark is not generic. Therefore, District Court's ruling is reversed.

• Tiseo Architects, INC . v. B and B Pools Service and Supply Company

Plaintiff-Architects, Inc. alleged that defendant-architect copied a design and site plan that plaintiffs had prepared on the ground that the defendant's construction plans were substantially similar to the design of the plaintiffs. After a bench trial, the district court ruled in favor of the defendants and held that the architectural drawings in question were not substantially similar. Hence, present appeal. Held, it is well established that "originality is a constitutionally mandated prerequisite for copyright protection as per the ruling in Feist Publ'ns, Inc. v. Rural Telephone Serv. Co., Inc. Accordingly, the substantial similarity analysis of a copyright infringement claim is divided into two steps: "the first step requires identifying which aspects of the artist's work, if any, are protectible by copyright; the second involves determining whether the allegedly infringing work is 'substantially similar' to protectible elements of the artist's work." The district court "filtered out" many elements of plaintiff Architects' site plan drawings because they were "unoriginal," having been based on the sketch of another person; and the court identified several elements of the site plan that "possessed no minimal degree of creativity" because they were dictated by zoning regulations or the realities of the existing physical structure. The district court then compared the allegedly infringing building plans to the protectable elements of plaintiff Architects' site plan drawings. In so doing, the district court found "a lot of differences" and no substantial similarity. Therefore, district court applied the correct legal analysis in determining that defendant's work did not infringe plaintiff's copyright. Hence, judgement of district court is affirmed.

News

• Israel Inheritance law Draft Drops Anti-gay Language

Israel's justice minister has dropped language from a proposed amendment to the nation's inheritance law that would define common law marriage to be between a man and a woman, according to a statement made to the Association for Civil Rights in Israel. The minister informed the ACRI that he no longer plans to alter the language of the original bill, which allows "partners who live together in a common household" to legally receive inheritances. The Israeli Succession Law was passed in 1965; in 1999, a commission led by former Supreme Court Justice Jacob Turkel was established to revise the law.

• Arkansas AG Denies Certification of Ballot Measure on Unmarried Adoption Ban

Arkansas Attorney General issued an advisory opinion rejecting certification of a voter-backed ballot proposition that would ban adoptions by unmarried couples. The measure, submitted by the Family Council of Arkansas would prevent unmarried couples, regardless of their sexual orientation, from adopting children or acting as foster parents. The Attorney General cited inconsistencies between the proposed ballot title and language in the text of the measure as the source of his concerns. His opinion also addressed technical faults in the proposed ballot measure. The Attorney General invited the Family Council to resubmit the ballot proposal once corrections are made. Speaking to the AP, McDaniel said that the proposition will likely be certified once it incorporates his suggestions. In 2004, an Arkansas circuit judge struck down a 1999 ban on gay foster parents as unconstitutional. Last year, the Arkansas Supreme Court upheld the decision, finding no connection between homosexuality and child-rearing ability. The Family Council believes that a blanket ban on unmarried couples acting as foster or adoptive parents would be more likely to survive court challenges.

• Rights Groups file Lawsuit over Arizona Illegal Workers Law

The Mexican American Legal Defense and Educational Fund and other civil rights groups filed a lawsuit in federal court against the state of Arizona claiming that the Legal Arizona Workers Act is unconstitutional and could lead to discrimination against minorities, especially Latinos. The lawsuit, filed on behalf of Chicanos Por La Causa and Somos America alleges that the new law, which requires that businesses check their employees' employment eligibility with a federal database or risk having their business license revoked, violates both the 14th Amendment's guarantee of due process and federal immigration law that makes use of the database voluntary.

• UK Judge Says all Citizens and Visitors Should have Samples in DNA Database

UK Lord Justice Stephen Sedley said that all UK citizens and visitors should have their DNA included in the national DNA database because the current repository is insufficient. The Judge said that the UK DNA database, the world's largest at 4 million samples, has a disproportionate amount of samples from ethnic minorities and typically includes only those who have been arrested by police. The DNA database program compiles the DNA of all arrested crime suspects and creates a permanent file, even if a suspect is later cleared of the crime.

• Australia Government Appeals Haneef Visa Reinstatement

An Australian government solicitor filed an appeal contesting last month's Federal Court of Australia decision to reinstate the work visa of Dr. Mohammad Haneef who was detained by Australian authorities last month in connection with July's attempted UK car bomb terror attacks. Australian Immigration and Citizenship Minister Kevin Andrews revoked Haneef's work visa and placed him under "immigration detention" shortly after he was granted bail by a magistrate. Haneef's visa was then reinstated in full by the court, but the minister maintains that his decision to cancel it was in the "national interest" and that the court's ruling was a misinterpretation of the Act.

Haneef, who has not been implicated by UK authorities in the attacks, was detained as a terror suspect for 25 days for allegedly providing reckless material support to the suspected terrorists. The terror charge against him was dropped after the Australian director of public prosecutions reviewed the case and concluded that there was insufficient evidence. Haneef has since been allowed to return to India, but the Australian Federal Police said in August that he is still considered a suspect.