Midas Hygiene Industries (P) Ltd. v. Sudhir Bhatia, (2004) 3 SCC 90

Full Judgment:

IN THE SUPREME COURT OF INDIA
BEFORE S.N. VARIAVA AND H.K. SEMA, JJ.)
MIDAS HYGIENE INDUSTRIES (P) LTD. AND ANOTHER- Appellants;
Versus
SUDHIR BHATIA AND OTHERS – Respondents.
Civil Appeal No. 107 of 2002, decided on January 22, 2004

1. This appeal is against the judgment of the High Court dated 20-9-2001.
2. Briefly stated, the facts are as follows:
   The appellants filed a suit for passing off and for infringement of copyright. In the suit an application for interim injunction under the provision of Order 39 Rules 1 and 2 of the Code of Civil Procedure was filed. A learned Single Judge of the High Court in order dated 31-7-2001 noted the following facts:
   “(i) The defendant admittedly worked with the plaintiff prior to launching its business.
   (ii) The plaintiff’s prior and prominent user of the phrase Laxman Rekha as a part of the description of crazy lines as shown by the documents i.e. advertisements at least of 1991 produced by the plaintiff showing prominent user of the phrase Laxman Rekha.
   (iii) The defendant’s non-denial of the plaintiff’s assertions in the notice dated 28-2-1992 to the effect that the plaintiff used the phrase ‘Laxman Rekha’ on its product.
   (iv) The plaintiff’s assertion of the ownership of copyright in the packaging containing the words ‘Laxman Rekha’.
   (v) The defendant has not chosen to give an explanation why he adopted ‘Magic Laxman Rekha’.
   (vi) The defendant’s averments in Suit No. 1967 of 1996 that the product Magic Laxman Rekha was used by it since 1992.
   (vii) The defendant’s statement in the application made to the Trade Mark Registry on 30-5-1996 for registration of trade mark ‘Magic Laxman Rekha’ claiming continuous user since 1992.”
3. In view of these facts, the learned Single Judge granted an interim injunction preventing the respondents, their servants, agents, distributors, stockists or any other person acting on their behalf from manufacturing, marketing, distributing or selling insecticides, pesticides as well as insect repellent under the name LAXMAN REKHA as well as packing design having similar colour scheme, get-up, background and colour combination as that of the appellants’ copyright.
4. The respondents filed an appeal which has been disposed of by the impugned judgment. The Division Bench in spite of noting the factors which have been set out by the learned Single Judge, has vacated the injunction merely on the ground that there was delay and laches in filing the suit. It has held that such delay and laches disentitled grant of injunction. The respondents were merely directed to file regular accounts of their sales in court.
5. The law on the subject is well settled. In cases of infringement either of trade mark or of copyright, normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction in such cases. The grant of injunction also becomes necessary if it prima facie appears that the adoption of the mark was itself dishonest.
6. In this case it is an admitted position that the respondents used to work with the appellants. The advertisements which had been issued by the appellants in the year 1991 show that at least from that year they were using the mark LAXMAN REKHA on their products. Not only that but the appellants have had a copyright in the marks KRAZY LINES and LAXMAN REKHA with effect from 19-11-1991. The copyright had been renewed on 23-4-1999. A glance at the cartons used by both the parties shows that in 1992 when the respondent first started he used the mark LAXMAN REKHA on cartons containing colours red, white and blue. No explanation could be given as to why that carton had to be changed to look almost identical to that of the appellant at a subsequent stage. This prima facie indicates the dishonest intention to pass off his goods as those of the appellants.
7. In our view on the facts extracted by the learned Single Judge, this was a fit case where an interim injunction should have been granted and should have been continued. In our view the Division Bench was entirely wrong in vacating that injunction merely on the ground of delay and laches. Under the circumstances, the impugned order is set aside and that of the trial court is restored. It is clarified that all observations made by the High Court and by this Court are prima facie and shall not be taken into consideration at the time of the trial of the suit.
8. The appeal stands disposed of accordingly. No order as to the costs.

G.B.Devaraj and others vs State of Karnataka and others.  Writ Petition 8374/2019 decided on 11 December 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/356867/1/WP8374-19-11-12-2020.pdf

Relevant paragraphs: 16. The Conduct Rules of the State defines and regulates the conduct of a Government servant which is hedged by certain conditions with regard to conduct or otherwise and what would amount to misconduct. The conduct Rules being made applicable under Rule 39(b) cannot empower the Corporation to entrust an enquiry to the hands of the Lokayukta as there is no provision in the conduct Rules for such entrustment.

17. The power of entrustment of an enquiry to the hands of the Lokayuka is dealt with under KCS(CCA) Rules which not only contains provision for such entrustment, but also deals with elaborate procedure for conduct of disciplinary proceedings against Government Servant.

Therefore, KCS(CCA) Rules without being specifically adopted cannot and would not mean that the said Rules can be applied, bringing it, within the sweep of Rule 39 of the said Rules of the Corporation, unless KCS(CCA) Rules is specifically adopted by a decision of the Board of the Corporation. In view of the preceding analysis, I hold that power to entrust the enquiry to the hands of the Lokayukta is not available with the Corporation. Therefore, the entrustment of the enquiry to the hands of the Lokayukta by the Managing Director of the Board will have to be held as an act without jurisdiction.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Sree Swayam Prakash Ashramam vs G. Anandavally Amma. Civil Appeal No. 7 of 2010, decided on January 5, 2010. Reported in (2010) 2 SCC 689.

Full Judgment in PDF form. See paragraph 33.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Photo courtesy LiveLaw.

S. Sarojini Amma   vs Velayudhan Pillai Sreekumar

Civil Appeal No. 10785 of 2018†, decided on October 26, 2018. see (2019) 11 SCC 391

See paragraphs: 13, 16 and 17

Full Judgement in PDF format

Hardeo Rai  vs Sakuntala Devi Respondent. Civil Appeal No. 3040 of 2008 decided on April 29, 2008. (2008) 7 SCC 46.

See paragraphs 22 to 26

Full Judgment in PDF format.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Picture courtesy, LiveLaw

Thamma Venkata Subbamma vs Thamma Rattamma . Civil Appeal No. 258 of 1974, decided on May 6, 1987. (1987) 3 SCC 294.

See paragraphs 8 to 18

Full Judgment in PDF format.

The answer is yes. However this comes with a condition which is found in the Rule framed by the Bar Council of India. The same reads thus

SECTION II – DUTY TO THE CLIENT

13.      An Advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an Advocate if he can retire without jeopardising his client’s interests.

At appellate stage this issue will not arise. However, in most of the relatives cases involving matrimonial disputes, partition, domestic violence etc, emotions fly high. If an unsavory comment is made against parents or close relatives it creates emotional turmoil and the possibility of the lawyers getting enraged is common. Hence, it is advisable to engage a friend lawyer in such circumstances.

S. Basavaraj, Member, Karnataka State Bar Council

Geetha vs The Returning Officer. Writ Petition 15005/2020 decided on 17 December 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357013/1/WP15005-20-17-12-2020.pdf

Full Judgment:

The grievance of the petitioner is that her nomination for the election to the Guddekoppa Gram Panchayat, Thirthahalli Taluk, has been rejected by the Returning Officer by order dated 13.12.2020 at Annexure-A. This writ petition is filed seeking a direction or to issue a writ of certiorari to quash the impugned order dated 13.12.2020 at Annexures-A.

2. When this Court called upon the learned counsel for the petitioner to make his submission regarding the maintainability of the writ petition in view of the statutory bar imposed under Section 15 of the Karnataka Grama Swaraj and Panchayat Raj Act, 1993 which provides that no election to fill a seat in the gram panchayat shall be called in question except by an election petition filed before the designated court within whose territorial jurisdiction the panchayat area concerned or the major portion of the panchayat area concerned is constituted by any candidate at said election, learned counsel submits that statutory bar under section 15 does not come in the way of this Court in exercising its extraordinary jurisdiction under Article 226 of the Constitution of India. Learned counsel placed reliance on a decision of the Division Bench in the case of Ramakrishnappa vs./Presiding Officer reported in ILR 1991 KAR 4421.

3. This Court has gone into the decision cited by the learned counsel for the petitioner. The decision rendered by the Division Bench on 06.11.1991 was in the backdrop of there being on express constitutional provision pertaining to the election of Panchayats, Municipalities, Municipal Corporations etc. The judgment was rendered having regard to Article 329 of the Constitution which dealt with the elections to the Parliament and State Legislature. There being no constitutional provisions, the Division Bench proceeded to hold that Article 329 could not be invoked with respect to the election to a Co-operative society.

4. The Constitution of India has undergone substantial change in the year 1993. Provisions covering the elections of Panchayat, Municipalities, Municipal Corporations and Co-operative Societies have been incorporated under separate chapters. Chapter IX which pertains to the panchayats was added into constitution w.e.f., 24.04.1993. Article 243-O clearly bars interference of Court in electoral matters pertaining to the panchayats. Article 243-O (b) provides that no election to any panchayat shall be called in question except by an Election Petition presented to such authority and in any such manner as is provided for by or under any law made by the Legislature of the State.

5. Consequently, the writ petition is not maintainable. If the petitioner is aggrieved by rejection of the nomination, she can proceed to file a Election Petition duly constituted before the designated court as provided under Section 15 of the Act.

Accordingly, the writ petition stands dismissed.

Compiled by S.Basavaraj, Advocate, Daksha Legal.

Electronic Research Private Ltd vs Canara Bank and others. Regular First Appeal 253/2000 decided on 22 December 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357268/1/RFA253-00-22-12-2020.pdf

Held: Para 74. Section 238 of the Indian Contract Act, contemplates that if any misrepresentation is made or fraud committed by agents, acting in the course of their business for their principal, have the same effect of agreements made by the agents as if such misrepresentations or fraud had been made or committed by the principals but misrepresentation  made or frauds committed  by  agents. The misrepresentation and frauds alleged to have been committed by the employees during the course of their action while working on behalf of the company, a principal, it is within their authority while acting upon and therefore such acts binds the principal employer. Master is liable for the fraud committed by the employees whether it was for the benefit of Master or not as held by the Hon’ble Apex Court in State Bank of India vs Smt. Shyama Devi reported in AIR 1978 SC 1263.

76. Plaintiff has to own the responsibility for the fraud committed by its employees. Indisputedly, no amount was credited to the Government revenue towards the customs duty liable to be paid on the imported goods which were cleared on the basis of fake TR-6 challans. The customs duty paid on  demand  made by the department, at any stretch of imagination cannot be held to be double payment. No person can siphon off the  Government money and enrich themselves causing loss to  the  revenue.  Indisputably, no credit is made to the account of the Government revenue. The primary liability is with the plaintiff – company to discharge the same

GOVINDARAJU @ KUTTI vs THE STATE OF KARNATAKA. CRIMINAL APPEAL No.1459/2019. Decided on 23 DECEMBER, 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357186/1/CRLA1459-19-23-12-2020.pdf

Para 22. We have come across several cases, wherein the trial Courts during trial when the accused counsel was absent, closes the cross-examination of the defence as nil and proceed to pass the judgment of conviction and order of sentence against the accused. It is against the fundamental rights guaranteed to the accused persons under Articles 21, 22 and 39A of the Constitution of India as well as the provisions of Sections 303 and 304 of the Code of Criminal Procedure. In case the counsel for the defence was not present on the particular day, when the matter was posted for cross-examination or not at all appeared for ever to cross-examine the prosecution witnesses, it is the duty cast on the Court to ensure that opportunity should be given to the accused to engage the services of counsel or it is the duty of the Court to ensure to provide free legal assistance to the accused by appointing advocate from the Legal Services Authority, in order to provide fair trial.

23. In some of the criminal cases, the accused might be in judicial custody or might be suffering from poverty or similar circumstances and not able to engage counsel on his behalf. In those circumstances, the Court should act as Societal parents and ensure fair trial is provided before passing the judgment of conviction and order of sentence against the accused persons. Because of the mistake committed by the learned counsel for the accused, the accused should not be denied opportunity to cross- examine the prosecution witnesses.  Providing a legal assistance is a constitutional mandate under Articles 21, 22(1) and 39A of the Constitution of India and further, Section 304 of the Code of Criminal Procedure provides for legal assistance to an accused on State expenditure.

24. In view of the above, in the present case, the trial Court is not justified in convicting accused without providing an opportunity to the accused to cross-examine the prosecution witnesses, which is nothing but denial of fair trial.

25. Our view is fortified by the dictum of the Hon’ble Supreme Court in the case of Ashok Debbarma  v.  State  of  Tripura reported in (2014)4 SCC 747, wherein the Hon’ble  Supreme Court held at paragraphs 35 to 38 as under:

“35. Can the counsel’s ineffectiveness in conducting a criminal trial for the defence, if established, be a mitigating circumstance favouring the accused, especially to escape from the award of death sentence. The counsel for the appellant, without causing any aspersion to the defence counsel appeared for the accused, but to only save the accused from the gallows, pointed out that the records would indicate that the accused was not meted out with effective legal assistance. The learned counsel submitted that the defence counsel failed to cross-examine PW 1 and few other witnesses. Further, it was pointed out that the counsel also should not have cross-examined PW 17, since he was not put to chief-examination. The learned counsel submitted that the appellant, a tribal, coming from very poor circumstances, could not have engaged a competent defence lawyer to conduct a case on his behalf. Placing reliance on the judgment of the US Supreme Court in Strickland v. Washington [80 L Ed 2d 674 : 466 US 668 (1984)] , the learned counsel pointed out that, under Article 21 of our Constitution, it is a legal right of the accused to have a fair trial, which the accused was deprived of.

36. Right to get proper and competent assistance is the facet of fair trial. This Court in M.H. Hoskot v. State of Maharashtra [(1978) 3 SCC 544 : 1978 SCC (Cri) 468] , State of Haryana v. Darshana Devi [(1979) 2 SCC 236], Hussainara Khatoon (4) v. State of Bihar [(1980) 1 SCC 98 : 1980 SCC (Cri) 40] and Ranjan Dwivedi v. Union of India [(1983) 3 SCC 307 : 1983 SCC (Cri) 581], pointed out that if the accused is unable to engage a counsel, owing to poverty or similar circumstances, trial would be vitiated unless the State offers free legal aid for his defence to engage a counsel, to whose engagement, the accused does not object. It is a constitutional guarantee conferred on the accused persons under Article 22(1) of the Constitution.  Section 304 CrPC provides for legal assistance to the accused on   State   expenditure.   

38. Right to get proper legal assistance plays a crucial role in adversarial system, since access to counsel’s skill and knowledge is necessary to accord the accused an ample opportunity to meet the case of the prosecution. In Strickland case [Strickland v. Washington, 80 L Ed 2d 674 : 466 US 668 (1984)] , the US Court held that a convicted defendant alleging ineffective assistance of counsel must show not only that counsel was not functioning as the counsel guaranteed by the Sixth Amendment so as to provide reasonable effective assistance, but also that counsel’s errors were so serious as to deprive the defendant of a fair trial. The Court held that the defiant convict should also show that because of a reasonable probability, but for counsel’s unprofessional errors, the results would have been different.

26. For the reasons stated above and in the light of the principles enunciated in the dictums of the Hon’ble Supreme Court stated supra, we answer the point raised in the present criminal appeal in the affirmative holding that the appellant – accused has made out a case to remand the matter to the trial Court for providing an opportunity to him to cross-examine the prosecution witnesses, in order to fulfill the constitutional mandate as provided under Articles 21, 22(1) and Article 39A of the Constitution of India as well as the provisions of Sections 303 and 304 of the Code of Criminal Procedure.

Appeal allowed. Matter remanded to trial court.

Compiled by S. Basavaraj, Advocate, Daksha Legal.