India: Special Officer, Commerce, North Eastern Electricity Company Of Orissa (NESCO) & Anr. Vs. M/S Raghunath Paper Mills Private Limited & Anr. [MANU/SC/0962/2012]

Last Updated: 7 April 2013

Supreme Court Of India Cases:

The question which came before the Hon'ble Supreme Court in the present case was whether a Company, which purchased the property of another Company under liquidation through auction, is liable to pay the arrears of electricity dues outstanding against the erstwhile Company. The Hon'ble Supreme Court held that the supply of electricity by a distributor to a consumer is "sale of goods". The distributor as the supplier, and the owner/occupier of a premises with whom it enters into a contract for supply of electricity are the parties to the contract. A transferee of the premises or a subsequent occupant of a premises with whom the supplier has no privity of contract cannot obviously be asked to pay the dues of his predecessor-in-title or possession, as the amount payable towards supply of electricity does not constitute a "charge" on the premises.

A purchaser of premises cannot be foisted with the electricity dues of any previous occupant, merely because he happens to be the current owner of the premises. The supplier can therefore neither file a suit nor initiate revenue recovery proceedings against a purchaser of a premises for the outstanding electricity dues of the vendor of the premises in the absence of any contract to the contrary.

Indra Kumar Patodia & Anr. Vs Reliance Industries Ltd. and Ors. [MANU/SC/1012/2012]

The question that came before the Court was whether a complaint under Section 138 of the Negotiable Instruments Act, 1881 (in short "the Act") without signature is maintainable when such complaint was subsequently verified by the complainant. The important question in the instant case is what is meant by 'complaint in writing'. Whether complaint should be in writing simpliciter or complaint being in writing requires signature below such writing. The Court held that if the legislature intended that the complaint under the Act, apart from being in writing, is also required to be signed by the complainant, the legislature would have used different language and inserted the same at the appropriate place. The requirements of Section 142(a) of the Act is that the complaint must necessarily be in writing and the complaint can be presented by the payee or holder in due course of the cheque and it need not be signed by the complainant.

M/s Laxmi Dyechem Vs State of Gujarat & Ors. [MANU/SC/1030/2012]

The question that came up in the present case was whether cheques that were dishonored on account of the signatures not being complete' or 'no image found' complete' or 'no image found' would amount to a dishonor that could constitute an offence under Section 138 of the Negotiable Instrument Act. The Court held that the two contingencies envisaged under Section 138 of the Act must be interpreted strictly or literally. The expression "amount of money ............. is insufficient" appearing in Section 138 of the Act is a genus and dishonour for reasons such "as account closed", "payment stopped", "referred to the drawer" are only species of that genus. So long as the change is brought about with a view to preventing the cheque being honoured the dishonour would become an offence under Section 138 subject to other conditions prescribed being satisfied.

It is only when the drawer despite receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount that the dishonour would be considered a dishonour constituting an offence, hence punishable.

COMPETITION LAW

Ajay Devgan Films V. Yash Raj Films Private Limited and others

Case No. 66 of 2012 Dated: 05/11/2012

Held : As per the scheme of the Competition Act, tie-in arrangements per se are not violated of section 3(4)(a) of the Act. Whether such an agreement is prohibited under the Act depends upon its actual or likely appreciable adverse effect on the competition in India. The governing principle under section 3(4) is 'appreciable adverse effect on Competition in India'. The guiding factors are stated under section 19(3) to assess whether any agreement is causing or likely to cause an appreciable adverse effect on competition.

It further held that no enterprise can be considered dominant on the basis of big name. Dominance has to be determined as per law on the basis of market share, economic strength and other relevant factors stated under section 19(4) of the Act. The Commission is unable to accept such a narrow approach while determining the relevant market.

Shri Kaushal K. Rana v. DLF Commercial Complexes Ltd

Case No. 50 of 2012 Dated: 13.12.2012

Held :The Competition Commission in view of the allegations of contravention of section 4 of the Act observed, that, despite DLF being a major real estate player with a PAN India presence, the geographic conditions prevailing in different parts of the country require determination of relevant geographic market in context of that area. Gurgaon and Delhi are different relevant geographic markets vis a vis whole of India real estate market for the purposes of case at hand. In Delhi, DLF is just one of the real estate developers. Since the informant in the present case was desirous of booking an office space, the relevant market for this is 'market for development of commercial/office space in the region of Delhi'. Presence of other real estate developers offering commercial office space also indicates that the informant was not dependent upon the DLF for provisioning of an office space. None of the factors stated under section 19(4) of the Act supported the informant's plea of dominance of DLF in the relevant market.

The allegations related to unfair trade practices, deficiency in services etc. may be pleaded at other appropriate forums because these are not within the ambit and jurisdiction of the Commission.

TRADE MARK CASE LAW

IPAB Judgement

Ilango v. Rank Xerox Ltd. & Ors., delivered on September 21, 2012

Order (No.229/2012)

The IPAB stated that though the public had been using the word 'Xerox' in a loose manner, it clearly knew that the owner of the trade mark was the respondent's. The IPAB further pointed that the mark was registered since the 1960s, and the same was continuously renewed by the proprietor without any opposition from its competitors. The fact that an alternative word, that is, photocopy, existed and was used by competitors weighed against the argument of the applicant.

Accordingly, the IPAB concluded that the word 'Xerox' was not generic and dismissed the plea for rectification against the said trade mark in Classes 1, 7 and 9. However, rectification against three applications was allowed as the respondent failed to prove the user of the same.

Delhi High Court

Exide Industries Limited v. Exide Corporation, U.S.A. & Ors.

MANU/DE/4642/2012

The issue in the present case centres on the ownership of trademark 'EXIDE'. The defendant was undisputedly the owner of the 'EXIDE' marks in several countries.. The defendant claimed that being the prior user worldwide and due to its transnational/spill over reputation in India, it is the owner of the said mark even in India.

It is the case of the plaintiff that CESCO started selling batteries in India under the name 'EXIDE' from U.K. and subsequently it applied for and was granted registration of the same in India.

In examining whether the defendant company did in fact give a common law license to the plaintiff, and if whether the plaintiff's rights were relatable to the defendant, the Court considered relevant commercial scenarios viz., the defendant did not have any controlling stake over the plaintiff or its predecessors after the split between the UK and US companies and that the defendant never received any consideration from the plaintiff as royalty. The Court observes that the American company would not have allowed its most valuable property to vest with the plaintiff without any control, and therefore there can be no common law license inferred. In deciding on special circumstances, the Court observed that there were no direct or indirect bars to import of batteries, and neither was the same demonstrated by the defendant for the purpose of qualifying as 'special circumstances'. The Court also held that there was no question of acquiescence by the plaintiff, as the defendant did not sell any goods in India nor did any special circumstances exist.

The Court held the plaintiff to be the registered proprietor of the trademark 'EXIDE' and therefore the defendant cannot infringe the trademark of the plaintiff and sell its goods or have a trade name with having the trademark 'EXIDE' of the plaintiff or any other name/mark deceptively similar thereto. The Court also stated that the plaintiff was the prior user of the trademark in India and, therefore, owner of the said trademark in India as defendant failed to plead and prove the existence of special circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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