[No.212]

Supreme Court

• Ram Prakash Gupta v. Rajiv Kumar Gupta and Ors.

In the present case, the Trial Court dismissed the suit of the Appellant on the basis of limitation holding that since partial rejection of the plaint is not permitted in law, the entire plaint has to be rejected. On appeal by the Appellant, the High Court dismissed the appeal recording that since there cannot be a partial rejection of suit, hence, the entire suit has to be dismissed. Being aggrieved by the Order, the present appeal has been filed by the Appellant. Whether Respondents made out a case for rejection of the plaint under Order VII Rule 11(d) of the Code of Civil Procedure? Prior to passing order on an application for rejection of plaint entire averments raised therein needs to be verified. Few lines or passage should not be read in isolation and the pleadings have to be read as a whole to ascertain its true import. Both the Trial Court as well as the High Court failed to advert to the relevant averments as given in the plaint. Therefore, impugned orders set aside. Appeal is allowed

• Citibank, N.A. v. TLC Marketing PLC and Anr

The Applicant-Citibank is a national banking association duly constituted, registered according to the laws of United States of America. The Respondent No.1- TLC incorporated under the provision of laws of England and Respondent No. 2-WIPL incorporated under Companies Act of 1956. Under a Scheme it was agreed to by the parties to the agreement that the eligible credit card customers of the Applicant-Citibank, having fulfilled certain specific criteria, were entitled to 'Free return flight vouchers' on air routes within India subject to the applicable terms and conditions. As and when, any of the customers of the Applicant-Citibank qualified/fulfilled the eligibility criteria he/she would get a voucher from the Applicant-Citibank. The customers, after the receipt of the vouchers, had the option to voluntarily complete the details required in the voucher including the choice of three destinations and three dates of travel but not earlier than 30 days from the date of signing the voucher and sending the same to the Applicant-Citibank. The Respondent No. 2-WIPL was required to perform various tasks including, but not limited to contacting the customer, checking seat availability, confirming the booking request according to preferences and sending confirmation to customers of their preference of travel date/destination. The Applicant-Citibank and the Respondents - TLC and WIPL agreed to the Scheme called the "Fly for Sure" programme, which was envisaged by the Applicant-Citibank to be effective. The obligations and responsibilities on the part of the parties to the agreement were incorporated in Appendix-I, which inter alia envisaged that Respondent No. 2-WIPL shall be liable and responsible for ensuring that it would provide the required services to the Applicant-Citibank and its eligible customers/card members in accordance with the terms of the agreement. The satisfactory service to be rendered by the Respondents-TLC and WIPL was the material obligation on their part as per the terms of the agreement and it was a pre-requisite condition that the Applicant-Citibank would pay a commission of cost of tickets in terms of Appendix-II to the agreement. Respondent No.1 and 2 failed to perform their part of agreement a dispute arose. Hence, the present petition. Whether in view of the various communications followed by reminders and legal notices sent by the Applicant to the Respondents whereby certain serious instances of complaints having been received from the eligible customers/card members, an arbitration clause could be invoked? Held, in view of the instances of breach of the terms and conditions of the agreement coupled with the breaches of specific obligations and responsibilities agreed upon by way of Appendix(s) and Enclosures as an integral part of the agreement and in Clause 10 of the agreement and having regard to the failure of the parties to determine an even number of Arbitrators, the requirement of Section 10(2) of the Act gets fully attracted in the present proceedings. Sole Arbitrator is accordingly appointed by the Court. Application stands disposed off.

High Courts

Bombay

• Shankar Ramlu Banpalliwar, Ayub Khan Ibrahim Khan Tighale V. State of Maharashtra through Secretary

Petitioners 1 and 2 applied to collector for inclusion of their names as delegates of Respondent Societies. Vice-Chairman of respondent societies then applied to collector stating that the names of petitioners 1 and 2 have been replaced with that of respondent 5 and 6 on basis of a second meeting of Managing Committee of Respondent Societies. However, the original minute book of meetings still contained the names of petitioners as delegates and a new parallel minute book was prepared to include the names of respondents 5 and 6 and permission for same was not sought from Registrar's office. Collector and D.D.R however ruled in favour of respondents. Hence, present writ petition. Held, not more than one minute book of the committee meetings or general meetings or parallel minute books can be prepared and maintained as can be seen from Rule 65. If at all there is any eventuality to do so, permission from the office of Registrar to do so would become imperative, in the light of the provisions wherein the powers of control and supervision are conferred on the Registrar. In the instant case the original proceedings book of the meeting of the Managing Committee i.e. as contemplated by Rule 65 (1) (5) did not contain any such resolutions in respect of both the societies and on the contrary the resolutions in respect of petitioner Nos.1 and 2 choosing them as delegates were the only resolutions to be found in the original minute book. The reports in both cases further show that neither any intimation was given to the office of Assistant Registrar nor any permission was obtained from the said office for holding such meetings or preparing a parallel proceedings book. Therefore, petition allowed.

• Vinod s/o Gulabrao Kinake v. The State of Maharashtra, through P.S.O., P.S., Umarkhed

Appellant was convicted and sentenced to life imprisonment for commission of offence under Section 302 IPC. Appellant challenged his conviction on ground that he was juvenile on the date of commission of offence. However, trial court even though recorded a finding that on the date of incident appellant was less than 18 years of age did not extend the benefits of the provisions of Juvenile Act on ground that the said Act had come into force thereafter. Hence, present appeal. Whether appellant is entitled to benefit of provisions of Juvenile Justice Act? Held, the field covered by the said Act includes a situation leading to juvenile delinquency vis-a-vis commission of offence and, therefore, the date when the delinquency took place would be the relevant date. Therefore, the relevant date for determining the age of juvenile would be one on which offence had been committed and not when juvenile is produced in the Court. In the instant case, appellant though was above the age of sixteen years on the date of occurrence, i.e. 30/3/2000, however, below the age of eighteen years as on 1.4.2001 when the said Act came into force Therefore, finding recorded by the trial Court that appellant was not entitled to get the benefit of the provisions of said Act is wholly unsustainable in law.

Chennai

• Intellectual Property Appellate Board, Chennai

The Himalaya Drug Company V. Lalitkumar Ratilal Fozdar, Alar Laboratories, Gujarat, Registrar of Trade Marks, Mumbai and The Deputy Registrar of Trade Marks, Mumbai 

Respondent No. 1 filed application for registration of trade mark "RUMALAR" in respect of pharmaceutical preparations. Appellant filed opposition application opposing the registration on ground that the impugned trademark is deceptively similar to the registered trademark of the appellant "RUMALAYA" in respect of ayurvedic preparations. However, Respondent No. 3-Registrar dismissed opposition and allowed registration. Hence, present appeal. Held, both marks are nearly similar or nearly confusingly similar and the onus is upon the Respondent No. 1 to show that his trade mark which he seeks to register is not likely to deceive or to cause confusion. The burden of proving that the trade mark which a person seeks to register is not likely to deceive or to cause confusion is upon the applicant and it is for him to satisfy the Registrar of Trade Marks that his trade mark does not fall within the prohibition of Act and therefore it should be registered. This aspect has totally been overlooked by the Respondent No. 3. Therefore, opposition allowed and appeal succeeds.

PIB

• Amendment in the Mines and Minerals Development and Regulation Act, 1957

PIB Dated 15.11.2007: The Union Cabinet gave its approval for introduction of an amendment Bill of the Mines and Minerals ( Development & regulation) Act, 1957 in the Rajya Sabha to introduce auction through competitive bidding as a selection process for allocation of coal blocks for captive mining for specified / notified end uses. This is to ensure allocation of coal blocks not only objective but also transparent.

• Standing Committee on Commerce Invites Suggestions on Trade Marks (Amendment) Bill 2007

PIB Dated 31.10.2007: The Trade Marks (Amendment) Bill, 2007, introduced in the Lok Sabha on the 23rd August, 2007 and pending therein, has been referred to the Department-related parliamentary Standing Committee on Commerce, with Dr. Murli Manohar Joshi, Member, Rajya Sabha, as its Chairman, for examination and report. The Bill seeks to amend the Trade Marks Act, 1999.

Telecom Regulatory Authority of India (TRAI)

• TRAI Issues Guidelines to Telecom Service Providers Prescribing Procedure/Practice and Code of Conduct for Outsourced Agencies Engaged by Them

Press Release No : 94/2007 Dated 16.11.2007: The Telecom Regulatory Authority of India (TRAI) issued guidelines to all Telecom Service Providers to have a transparent policy on mode of recovery of dues from their consumers. The guidelines lay broad parameters and also code of conduct to be adhered to by the service providers in respect of outsourced agencies engaged by them for collection of dues, without affecting the rights of consumer. This step was based on the complaints that TRAI was receiving from consumers about the procedures being adopted by service providers for collection of outstanding dues.

Ministry of Information and Broadcasting

• Appointment of Chairman of the Film Certification Appellate Tribunal

Notification S.O.1582(E) Dated 20.09.2007: The Central Government has appointed Justice Usha Mehra, retired Judge of the Delhi High Court, as Chairperson of the Film Certification Appellate Tribunal for a period of three years from the date of publication of this notification in the Official Gazetteer until further orders, whichever is earlier.

Cases

• Hunter V. State of Texas

In the present case, a jury convicted appellant of capital murder. Trial judge affirmed the jury's decision and sentenced appellant to death. Appellant challenges the sufficiency of the evidence supporting the jury's determination that he is not mentally retarded. Appellant claims that he was entitled to a pretrial determination of mental retardation by the judge or a jury separate from that determining guilt. Held, in Atkins v. Virginia, the United States Supreme Court held that it is unconstitutional to execute one who is mentally retarded. However, the Court left to the individual states the job of establishing the substantive and procedural mechanisms to implement that holding. The Texas Legislature has not yet established a statutory scheme for the presentation and determination of an issue of mental retardation in a capital- murder trial. In the absence of legislative action, the Court has formulated temporary judicial guidelines in the case of Ex parte Briseno wherein Court held that a jury determination of mental retardation is not required. Therefore, in the absence of legislation or a constitutional requirement directing when the determination of mental retardation is to be made or by whom, the trial court committed no error in denying appellant a pretrial determination of mental retardation by a judge or jury separate from that determining guilt. Therefore, judgement of trial court is affirmed.

• The State of Texas V. Nancy N. Neesley

The appellee was involved in a head-on automobile collision and was alleged to have taken alcohol which resulted in the collision. First sample or specimen of blood that was taken to determine whether there was alcohol in the blood of appelle however, got contaminated. Therefore, a second sample of blood was taken. Appelle filed motion to suppress the second sample and trial court granted same. On appeal by state, Court of Appeals affirmed the judgement of trial court. Hence, present appeal. What is the interpretation of the term "specimen" in the context of § 724.012(b) of the Texas Transportation Code and how many specimens are permitted by the statute. Held, one and only one specimen may be taken but the specimen should mean "usable specimen". Therefore, judgment of court of appeals is reversed and matter remanded to trial court for further proceedings.

News

• Federal appeals court rules against Islamic charity in NSA wiretapping lawsuit

The US Court of Appeals for the Ninth Circuit ruled that a defunct Muslim charity cannot use a document turned over to it by the US government as evidence that it was the subject of an illegal wiretap. The court held that a secret call log accidentally given to lawyers for the Al-Haramain Islamic Foundation by the US Treasury Department qualifies as a state secret and cannot be entered into evidence in the foundation's lawsuit against the government because of national security interests. The court sent the lawsuit back to the trial court, but the case is not expected to survive if the foundation cannot rely on the call log. The Oregon lawsuit, filed by the now-defunct foundation in February 2006, claims that the National Security Agency illegally wiretapped several conversations between the charity and its attorneys, having failed to get a court order as required by the Foreign Intelligence Surveillance Act (FISA).

• Pakistan lawyers slam independent TV shutdown as assault on free speech

Pakistani bar leaders have expressed dismay at the shutdown of Geo-TV and another independent Pakistani television channel, declaring the closures an unconstitutional violation of free speech contrary to Article 19 of the now-suspended national charter. Geo and ARY Television which have been beaming their news programs from ground stations in Dubai since local broadcast was blocked in Pakistan after President Pervez Musharraf's November 3 declaration of emergency rule, were asked by the UAE government to suspend their transmissions. Geo risked the wrath of the Musharraf regime earlier this year when it provided extensive coverage of events surrounding the suspension and eventual reinstatement of now-ousted Chief Justice Iftikhar Chaudhry.

• ASEAN urged to put rights component of new charter in separate treaty

Singaporean human rights group SG Human Rights called for the Association of Southeast Asian Nations (ASEAN) to split off the human rights section of its proposed new charter into a separate treaty. Chapter 14 of the draft Charter, which is to be signed early this coming week, aims to deepen the integration of member-states and promote human rights and democracy within the region.

• Iraq parliament orders inquiry into delay in Kirkuk status referendum

The Iraqi parliament ordered an investigation into the delay of a referendum on the future of the Iraqi city of Kirkuk after Kurdish leaders accused the Arab-dominated Iraqi central government of blocking the vote, which could result in the city joining the Kurdish-controlled semiautonomous region in the north of the country, or even declaring its independence. The Iraqi Constitution requires a referendum on Kirkuk's status before the end of the year. The city is highly coveted because of its vast oil wealth. Kurds claim a strong cultural connection with the location, while Arabs and Turkomen in the city are generally united in favor of Baghdad retaining control.

• Zimbabwe publishes electoral reform bill

The Zimbabwean government has introduced a draft bill meant to reform the country's election procedures, the state owned Harare Herald reported. The Electoral Laws Amendment Bill 2007 would combine presidential and legislative elections and allow candidates to demand vote recounts. The bill would also prohibit the military, police, and prison officers, from interfering with elections, require that public broadcasters allow equal airtime to all candidates and report impartiality issues, and compel the state-run electoral commission to confer with parties before drawing constituency and ward boundaries. The bill is the result of an agreement reached in September by President Robert Mugabe's ruling ZANU-PF party and the opposition Movement for Democratic Change (MDC) and is expected to be submitted to parliament within 30 days.