The appellant started its business in 1967 and has since been using the mark POLO in conjunction with other words/marks in various styles and artistic formats with and without the device of Polo Player, which had been created and were being created over time, namely POLO, POLO RALPH LAUREN.

The appellant claimed that the defendant was in the business of manufacturing, marketing, soliciting, selling, displaying and trading a variety of household products and kitchen utensils, including but not limited to stainless steel vacuum insulated bottles, single wall bottles, trays, cookware, dinnerware and other allied/related products, under the trademarks ‘POLOLIFETIME’, POLO, Device of Polo Player for its products which are identical and deceptively similar to the marks of the plaintiff.

The Appellant/Plaintiff also contended that adding the word ‘LIFETIME’ to the phrase ‘POLO’ did not make it distinctive and identifiable. It was further said that the defendant’s trademark/label was identical and deceptively like the plaintiff’s trademark/label in every way, including phonetically, graphically, and architecturally, in its basic idea and critical elements.

The Appellant/Plaintiff also contended that the appellant/plaintiff’s mark have been declared as ‘Well-known’ by the Hon’ble High Court of Delhi in the year 2011 in another proceedings namely IN CS OS 1763/2005 THE POLO/LAUREN CO. LP. V. ROHIT S. BAJAJ and thus the Appellant/Plaintiff is entitled to better protection. 

Overview of the marks of the Parties: 

DEFENDANT’S TRADEMARKS:

		No trademark application filed.
		Application No. 1537943 Class: 21 Mark type: Word Applied by: the respondent/defendant Date of application: 08/03/2007 Status: Abandoned (Opposed by the Appellant/Plaintiff vide opposition No. 745362 dated 02.06.2009 Abandoned vide order dated 07.03.2016)
		Application No. 3836918 Class:21 Mark type: Device Applied by: the respondent/defendant Date of application: 18/05/2018 Status: Pending (Opposed by the Appellant/Plaintiff vide opposition No. 1067206 dated 17/10/2020)
		TM Registration under No. 2105994 Class: 21 Mark type: Device Applied by: the respondent/defendant Date of application: 25/02/2011 Status: Registered (Rectification filed by the Appellant/Plaintiff dated 21.10.2020)
		TM Registration under No. 2105995 Class: 35 Mark type: Device Applied by: the respondent/defendant Date of application: 25/02/2011 Status: Registered (Rectification filed by the Appellant/Plaintiff)
		Application No. 3836919 Class: 21 Mark type: Word Applied by: the respondent/defendant Date of application: 18/05/2018 Status: Pending (Opposed by the Appellant/Plaintiff vide opposition No. 1067207 dated 17/10/2020)
		Polo player/Polo Rider used by the respondents/defendants on brochures which were seized by the Local Commissioner and were annexed along with the LC Report.
TRADEMARKS OF THE APPELLANT/PLAINTIFF:
	TM Registration under No. 577995 Class: 14 Mark type: Word Applied by: the appellant/plaintiff Date of application: 27.07.1992 Status: Registered
	TM Registration under No. 357142 Class: 25 Mark type: Ralph Lauren with Device of polo player Applied by: the appellant/plaintiff Date of application: 04.01.1980 Status: Registered
	TM Registration under No. 476409 Class: 03 Mark type: Device Applied by: the appellant/plaintiff Date of application: 06.08.1987 Status: Registered
	TM Registration under No. 420657 Class: 25 Mark type: Device Applied by: the appellant/plaintiff Date of application: 12.04.1984 Status: Registered
	TM Registration under No. 674214 Class: 25 Mark type: Device Applied by: the appellant/plaintiff Date of application: 27.07.1992 Status: Registered
Flask sold by Appellant/Plaintiff Appellant’s flask/bottle

The District Court Decision That Was Challenged 

The Ld. District Judge (Commercial Court), Tees Hazari vide an order dated 14.07.2023 while finally deciding the Plaintiff’s application under Order 39 Rule 1&2, vacated the ad-interim injunction restraining the defendant’s M/s Home Needs from using, selling, displaying, advertising and soliciting its products under the marks Polo Lifetime/ Polo/ POLOLIFETIME and any other marks which may be identical and deceptively similar to the said marks of the Plaintiff I.e. the POLO/LAUREN CO. L.P. granted vide order dated 26.11.2020 by the Ld. Predecessor Judge. 

 The Ld. District Judge (Commercial Court), Tees Hazari while vacating the injunction order dated 26.11.2020 recorded certain observations on the basis of which the ld. Judge came to the conclusion that the Plaintiff is not prima-facie entitled for the relief of injunction. The said observations were as follows:

1. In most of the plaintiff’s trademarks besides POLO word, Ralph Lauren is also used along with a Polo Player on Horse whereas in the defendant’s trademark besides Polo, Lifetime is also used hence except for the word POLO there is no similarity between plaintiff’s trademark and defendant’s trademark. 
2. The defendant is in the business of kitchenware products whereas the Plaintiff is in the business of Fashionwear thus, there is very little scope for customers/purchasers of goods to be confused regarding the source of the said products. Also, the plaintiff does not enjoy such a reputation and goodwill in India that it leads the use of the word POLO as an association with the Plaintiff company.
3. The documents reveal that the defendants have started using the trademark POLO since 2005 and obtained registration in 2011 however the plaintiff has not placed on record any document showing sales during the said period.
4. The well-known declaration of the plaintiff’s marks is of no help because the plaintiff has failed to prove that it has become a house-hold name in India, the plaintiff is not in business of multi-fields like TATA and because the defendant started using POLO with suffix LIFETIME much prior to the said well-known declaration.

The Decision by the Delhi High Court

Hon’ble Mr. Justice Yashwant Varma and Hon’ ble Mr. Justice Ravinder Dudeja found that the impugned order passed by the Tis Hazari District Court on 14th July 2023 is prima-facie not sustainable. 

The material produced by Sr. Adv. Sanjeev Sindhwani, Counsel for the Appellant/Plaintiff was considered, and the Court found that the defendant holds a registration for the trademark “POLOLIFETIME”, a composite word, which was registered on 25th February 2011. and on the other hand, the appellant held the registration for the word ‘POLO’ and the mark ‘RALPH LAUREN’ carrying the picture of a polo player as part of the device registration that was registered in India on 04th January 1980.

The high Court took reference from one of the previous cases, The Polo/Lauren Company L.P. vs. Rohit S. Bajaj & Ors, where it was held that the trademark POLO / RALPH LAUREN / POLO PLAYER DEVICE was liable to be recognized as ‘well-known’ marks as defined under Section 2(1) (zg) of the Trademarks Act, 1999.

The Court found merit in the appeal challenging the order passed by the District Court and put a stay on it till the next hearing, i.e. on 01st February 2024.

The post The Polo/Lauren Company L.P. was granted a stay on operation of an order vacating ad-interim injunction of Tis Hazari District Court on 07th November 2023, by the Delhi High Court appeared first on Legal Desire Media and Insights.

Brief Background

Under Armour, Inc, (plaintiff) is a company having its registered office in Maryland USA officially entered Indian Market in 2017. It incorporated its Indian subsidiary under the name “Under Armour India Trading Pvt. Ltd.” in October 2018, and the first physical store opened in India in 2019.

Under Armour holds various registrations under the Trade Marks Act 1999 including the concerned trademarks “UNDER ARMOUR” and “UA” registered under Classes 18, 25 and 28 with effect from 24th February 2009 and 12th January 2011 respectively.

Submissions

Mr. Rishi Bansal, counsel for the plaintiff submitted before the Court the registered marks – UNDER ARMOUR/UA/UNDR ARMR by Under Armour are infringed by Aditya Birla Fashion & Retail Ltd. (defendant) on identical goods, using the marks “STREET ARMO/SA/STRT ARMR”. 

While doing so, it is alleged that the defendant is using, for its ― “ARMOR” part of the mark, a font, style and lettering which is deceptively similar to that used by the plaintiff for ― “ARMOUR”. Even while using ― “STREET ARMOR” as a device, the plaintiff alleges that the defendant uses a similar font and lettering for ― “ARMOR” while using a disproportionately small font and lettering for STREET. 

The similarities are demonstrated in the plaint in the following manner:

Mr. Bansal, counsel for plaintiff (Under Armour) argued that ARMOUR is the primary component of UNDER ARMOUR and that infringement occurred because the defendant’s disputed marks also terminate with ARMOUR. That, however, does not justify the Court limiting the scope of examination to the latter, ARMOUR, part of the plaintiff’s marks, when the entirety is asserted. The Court’s role is to determine whether taken as a whole, the defendant’s marks infringe the plaintiff’s or whether, by using the abovementioned marks, the defendant tried to pass off its goods as those of the plaintiff. 

The defendant’s counsel, Mr. C.M. Lall to support the argument that “ARMOUR” is descriptive, replied on three facts – 

1. The name “Under Armour” was coined in 1996 to be used as a mark on a specific kind of T-shirt made of moisture-wicking synthetic fabric, that conforms to the description of “under armour”.
2. He further stressed the dictionary meaning of “armour”, which is “clothing, often made of metal that soldiers wore in earlier times to protect themselves”.
3. He submitted that the plaintiff while registering the mark “UNDER ARMOUR” mentioned the items in the class as “protective clothing”.

Court’s Verdict

The Court rejected the arguments that the learned Senior Counsel, Mr. Lall on behalf of Aditya Birla (defendant) that the argument did not put much concentration on comparing the complete marks of Under Armourf to those of Aditya Birla. 

The main essence of Under Armour’s submission was that ARMOUR is the dominant part of UNDER ARMOUR and as the defendant’s impugned marks too end with ARMOUR, causing an infringement. Now, the question arises how ARMOUR is making the dominant part of the plaintiff’s mark?

Though it bears no reiteration that while a mark is to be considered in its entirety, it is permissible to accord more or less importance or ‘dominance’ to a particular portion or element of a mark in cases of composite marks. Thus, a particular portion or element of a mark is in cases of composite marks. Thus, a particular element of a composite mark which enjoys greater prominence vis-a-vis other constituent elements may be termed a ‘dominant mark’.

Under this principle, the Court identifies one mark or the other as dominant, and here the Court agreed to the fact that the plaintiff‘s and defendant‘s marks are used for identical goods is of considerable significance in this regard. A customer of average intelligence and imperfect recollection may feel confused or by the defendant, of a closely similar manner of abbreviating the STREET ARMOR mark to STRT ARMR,

The Court admitted that there are chances that a consumer may assume that there is a relationship between the mark of the defendant and the earlier mark of Under Armour, which is a ‘prima facie’ infringement. Moreover, following the ruling by the Supreme Court of India, Under Armour can not claim a monopoly on the suffix ARMOUR, therefore the marks are compared as a whole, instead of in their perspective parts.

The Court did not find any merit to the point raised by Mr. Lall and said that “Armour” when used in the context of clothing, especially of sportswear, can not be treated as descriptive, as sports wears are not armorial. However, considering the complete marks in consideration, both parties are using the respective marks on identical goods, which indicates an infringement.

In the Court’s preliminary opinion, the defendant’s marks are recognised as infringing the plaintiff’s marks under Section 29(2)(b)9 of the Trade Marks Act when evaluated as complete marks.

The Court held that on the aspect of infringement and passing off, in favour of Under Armour on merits, an injunction must follow.

The court restrained the defendant from using the impugned marks and logos mentioned or any other mark which is confusingly or deceptively similar to the said marks of the plaintiff, in respect of apparel or any other goods or services which may be regarded as similar or allied to the goods in respect of which Under Armour uses its marks. 

The Court on the aspect of infringement and passing off, in favour of UnderArmour, allowing an injunction, restraining Aditya Birla from dealing in or using the impugned marks and logos as listed here – STREET ARMOR, STRT ARMR, ARMR, ARMOR, SA, ARMR DEPT, SA DEPT, STREET ARMOR CO., STRT ARMR LAB or any other trademarks/labels that are identical with and/or deceptively similar to plaintiff’s registered UNDER ARMOUR, UNDR ARMR or UA word marks or device marks or any other mark which may confuse the concerned marks registered by Under Armour, for apparel or any other products or services that is similar or allied to the products or services that the plaintiff uses its marks.

The application for an injunction and passing off stands allowed accordingly.

Appellate Order

Aditya Birla requested the Court that the order to bring into effect after two weeks, to avail the appellate remedies, but the Court did not agree as Order XLI Rule 5(2) of the Civil Procedure Code does not allow to put a stay on its own judgement

Aditya Birla Fashion filed an appeal and challenged this Judgment before the Divisional 2 Judge Bench of the Delhi High Court. 

The Appellate Court however, after a hearing, made it clear that there is no case made out on behalf of Aditya Birla. The Court expressed shock at the obvious dishonesty in the adoption of the mark Street Armor by Aditya Birla. The Court believed that Under Armour is a huge international brand having substantial and senior rights in India also and the marks of Aditya Birla should be restrained. 

At this stage, counsel appearing for Aditya Birla informed the court that they have instructions to give an undertaking that they shall cease the brand altogether. The court has given time of 3 weeks to Aditya Birla to file an undertaking in these terms.

The matter has been listed for May 22nd, 2023.

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                         At the very outset, this brief, brilliant and balanced judgment authored by Hon’ble Mr Justice Anish Gupta for a Division Bench of the Delhi High Court comprising of Hon’ble Ms Mukta Gupta and himself sets the ball in motion by first and foremost putting forth in para 1 that, “This appeal assails the impugned judgment dated 10th February, 2011 convicting the appellant for the offence punishable under Section 302/365/392/201 IPC and order on sentence dated 15th February, 2011 sentencing the appellant for imprisonment for life and a fine of Rs. 3000/- (simple imprisonment for six months in default of payment of fine) for offence punishable under Section 302 IPC, simple imprisonment for five years and a fine of Rs. 1000/- (simple imprisonment for one month in default of payment of fine) for offence punishable under Section 365 IPC, rigorous imprisonment for seven years and fine of Rs. 2000/- (simple imprisonment for three months in default of payment of fine) for offence punishable under Section 392 IPC and simple imprisonment for five years and a fine of Rs. 1000/- (simple imprisonment for one month in default of payment of fine) for offence punishable under Section 201 IPC. All sentences were to run concurrently.”

         The Incident

                                          To put things in perspective, the Division Bench then while dwelling on the incident in brief envisages in para 2 that, “As per the case of the prosecution on 28th January, 2004, a complaint Ex. PW-2/A was made by Sh. Charanjit Singh alleging that on 23rd January, 2004 at about 12 : 00 p.m. car No. HR-38FT-3125 (Tata Indica) from his taxi stand was hired by a person stating that he was going to Narora, District Bulandshahr, U.P. and the customer mentioned his address as J-124, Sarita Vihar. The customer mentioned that he would go to National Thermal Plant, Narora and would come back by the evening. The Indica car was driven by Dinesh Sharma (mobile No. 9810623545). The driver and the car did not return back by the evening and upon enquiries by the complainant, it was found that nobody from J-124, Sarita Vihar had hired any vehicle. The complainant suspected that the driver had been kidnapped alongwith the car and said he could identify the customer. On his complaint, an endorsement Ex. PW-7/A was made and FIR No. 55/2004 was registered under Section 365 IPC (Ex. PW-5/A). As per the call details of the driver’s mobile Ex. PW-7/DA, the last call was recorded at 12:44 p.m. and the last location on 25th January, 2004 was found at Sikanderabad, District Aligarh in Alpha Sector. Based on information by the brother of the deceased PW-3, Yagya Dev Sharma from a newspaper regarding the recovery of dead bodies from Hazara Nahar, the police party alongwith PW-2 and PW-3 reached PS Dholna and found two dead bodies recovered on 23rd January, 2004 and one dead body recovered on 25th January, 2004. PW-3 identified the photograph of the dead body recovered on 25th January, 2004 as that of his brother. Post mortem was conducted and a post mortem report Ex. PW-3/A was prepared and the investigation was handed over to S1 Hari Prakash. On 12th March, 2004, PW-2 met the IO and presented a black and white photo of the appellant who had been arrested in FIR No. Nil/04 under Sections 302/201 IPC at PS Atroli, District Aligarh. PW-2 alongwith PW-4 and PW-6, the other witnesses who were at the taxi stand when the Indica had been booked, identified the person in the photograph to be the same as the one who had booked the Indica on 23rd January, 2004. The photograph Ex. P-1 was seized by the police vide seizure memo Ex. PW-2/D and production warrants were issued against the appellant. It was found that appellant Devender was involved in a number of similar cases and despite production warrants, he was not produced. The IO received a letter from the appellant dated 24th April, 2004 Ex. PW-16/F where the appellant expressed to disclose entire facts to the case and requested to send production warrants to Bulandshahr. On 13th June, 2005, the appellant was produced in the Court of learned MM, New Delhi and was arrested vide arrest memo Ex. PW-8/A. Pursuant to his disclosure statements, the appellant also pointed out the place where the dead body was thrown. Even though PW-2 identified the appellant as the person who had taken the Indica car on 23rd January, 2004, the car itself was not recovered. A charge-sheet under Section 365/392/302/201/120B/34 IPC was filed and charges were framed to which the appellant pleaded not guilty and claimed trial. The prosecution examined 16 witnesses in support of their case, statement of the appellant was recorded under Section 313 CrPC and no evidence was led in defence. Since the appellant was involved in several cases, he could not be produced in the Trial Court for more than two years.”

        Analysis

                 Needless to say, the Division Bench then states in para 14 that, “Pursuant to examination of the evidence on record and appreciation of the contentions of the parties, this Court is of the considered view that the prosecution has been able to prove the guilt of the appellant beyond reasonable doubt for inter alia the following reasons.”

                        It is worth mentioning that the Division Bench then lays bare in para 15 that, “The appellant had been identified by three persons as the person who had hired the Tata Indica car HR-38FT-3125 driven by driver Dinesh Sharma (since deceased) on 23^rd January, 2004 at about 12 : 00 p.m. for visiting Narora, District Bulandshahr, U.P. The testimonies of these three witnesses PW-2, the owner of the taxi stand; PW-6, the brother of PW-2 and present at the taxi stand; and PW-4, another driver working at the taxi stand are clear, cogent, consistent and without any material contradictions. All three identified the appellant as the one who had hired the taxi on that day and also that Dinesh Sharma was the driver who had left in that taxi and had not returned on that or ever since. Their testimonies were also consistent regarding the appellant having given his address J-124, Sarita Vihar at the time of booking of the taxi but no one was found of that name or description at that address nor had the occupants of that Sarita Vihar address booked any taxi. It was therefore evident that the appellant while booking the taxi had given a false address thereby attempting to conceal his real identity and location to the owners of the taxi stand. The omission in the booking register Mark 16/X to note the name of the customer hiring the taxi (though the address J-124 Sarita Vihar was noted) would not discredit the otherwise consistent testimonies of three eyewitnesses to the fact of hiring the taxi by the appellant. Further, the identification of the appellant through the photograph by PW-2 at PS Atroli is fully corroborated by the testimony of PW-1, the then SHO at PS Atroli who had investigated the other case in which appellant was apprehended. The appellant’s contention that PW-2’s identification through the photograph lacks particulars and therefore must be discredited is therefore untenable. There is nothing on record to suggest that the witnesses knew the appellant or had any prior connect or enmity or ill-will to accept any suggestion by the appellant of false implication by these witnesses. Hectic and consistent efforts made by PW-2 and his associates, and PW-3 the brother of the deceased was obviously an honest and valiant attempt to locate the car (which belonged to PW-2) and the driver, after both went missing on 23^rd January 2004.”

           Be it noted, the Division Bench then notes in para 16 that, “As per the call detail records, Ex. PW-7/DA the last recorded call on the phone number of the deceased 9810623545 was at 12 : 44 : 01 on 23^rd January, 2004 (outgoing call to a number 9899459385). One other previous call at 12 : 24 : 57 which was also to the same number as an outgoing call were registered after the deceased would have started driving alongwith the appellant post the booking of the taxi at about 12 : 00 noon. As per the testimony of PW-12, the Nodal Officer of Airtel, there was no call detail available of 23^rd January, 2004 after 12 : 44 : 01 which was the last call registered on the mobile number of the deceased. It is evident that the deceased was not in a position to use his mobile thereafter.”

                              Do note, the Division Bench then discloses in para 17 that, “The recovery of the dead body of the deceased victim was on 25th January, 2004 from Hazara Nahar by the police team from PS Bulandshahr as is evident from the testimony of PW-14. The dead body was recovered with a rope around the neck and the photograph of that dead body was shown to the police team from Delhi accompanied by PW-3, the brother of the deceased, who identified the body.”

                     It would be instructive to note that the Division Bench then lays bare in para 18 that, “The post mortem report Ex. PW-13/A dated 25^th January, 2004 clearly shows that the death was due to asphyxia as a result of strangulation and since the time of death was about 4 days. The estimate of 4 days would not be exact or totally accurate since the deceased was clearly alive on 23^rd January, 2004 when the taxi had been hired by the appellant. It would be safe to assume that the murder of the deceased would have taken place on 23^rd January, 2004 itself being approximately 2-3 days prior to the post mortem. It is settled law that the time of death indicated in a post mortem report is only approximate and can have a range of error [refer to inter alia A.N. Venkatesh v. State of Karnataka, (2005) 7 SCC 714, Arvind Singh v. State of Maharashtra, (2021) 11 SCC 1]. PW-13 in his cross examination also states that the time of death in his report is only an approximate estimate.”

                       It is worth noting that the Division Bench then points out in para 19 that, “It is quite evident from the testimony of PW-1, the SHO of PS Atroli that when the appellant was apprehended with another Tata Indica car having a dead body in the rear seat, the body had a rope “fanda” around the neck. The dead body of the deceased as recovered from the Hazara Nahar also had a rope around the neck when found. Notwithstanding that there was an established chain of circumstance by which the prosecution proved the guilt of the appellant, this Court notes their submission that this could indicate a modus operandi of the appellant in hiring cars/taxis, murdering the driver and selling of the cars as noticed throughout these cases.”

                             Most notably, the Division Bench then hastens to add in para 20 that, “Most importantly, the prosecution had been able to present at least three witnesses who were able to give cogent and clear last seen evidence of the hiring of the car by the appellant from the taxi stand of PW-2 viz. PW-2, PW-4 and PW-6. All three had identified the appellant in the Court and PW-2 had originally identified the appellant as the one who had been arrested by PS Atroli, District Aligarh, U.P. This last seen evidence alongwith a lack of explanation by the appellant in his statement recorded under Section 313 Cr.P.C. to present any special circumstances exclusively within his knowledge regarding the fate of the car and the driver which he had hired from PW-2’s taxi stand, on 23rd January, 2004 would clearly inculpate the appellant for the offences for which he is charged by the prosecution.”

                               No less significant is what is then pointed out so usefully in para 21 stating that, “The learned APP has appropriately relied on a decision of this Court in Arvind @ Chhotu v. State, 2009 SCC OnLine Del 2332 where, in Para 103 of the said judgment, it is stated:

“103. We may summarize the legal position as under:—

(i) Last-seen is a specie of circumstantial evidence and the principles of law applicable to circumstantial evidence are fully applicable while deciding the guilt or otherwise of an accused where the last-seen theory has to be applied.

(ii) It is not necessary that in each and every case corroboration by further evidence is required.

(iii) The single circumstance of last-seen, if of a kind, where a rational mind is persuaded to reach an irresistible conclusion that either the accused should explain, how and in what circumstances the deceased suffered death, it would be permissible to sustain a conviction on the solitary circumstance of last-seen.

(iv) Proximity of time between the deceased being last seen in the company of the accused and the death of the deceased is important and if the time gap is so small that the possibility of a third person being the offender is reasonably ruled out, on the solitary circumstance of last-seen, a conviction can be sustained.

(v) Proximity of place i.e. the place where the deceased and the accused were last seen alive with the place where the dead body of the deceased was found is an important circumstance and even where the proximity of time of the deceased being last seen with the accused and the dead body being found is broken, depending upon the attendant circumstances, it would be permissible to sustain a conviction on said evidence.

(vi) Circumstances relating to the time and the place have to be kept in mind and play a very important role in evaluation of the weightage to be given to the circumstance of proximity of time and proximity of place while applying the last-seen theory.

(vii) The relationship of the accused and the deceased, the place where they were last seen together and the time when they were last seen together are also important circumstances to be kept in mind while applying the last seen theory. For example, the relationship is that of husband and wife and the place of the crime is the matrimonial house and the time the husband and wife were last seen was the early hours of the night would require said three factors to be kept in mind while applying the last-seen theory.

The above circumstances are illustrative and not exhaustive. At the foundation of the last-seen theory, principles of probability and cause and connection, wherefrom a reasonable and a logical mind would unhesitatingly point the finger of guilt at the accused, whenever attracted, would make applicable the theory of last-seen evidence and standing alone would be sufficient to sustain a conviction.”(emphasis supplied).”

Conclusion 

As a corollary, the Division Bench then holds in para 22 that, “In light of the above discussion and analysis, this Court finds that the guilt of the appellant for the murder of the deceased has been proved beyond reasonable doubt and duly supported by circumstantial evidence by the prosecution. Consequently, this Court finds no error in the impugned judgment of conviction and order on sentence by the learned Trial Court.”

Further, the Division Bench then directs in para 23 that, “Appeal is accordingly dismissed.”

Finally, the Division Bench then concludes by holding in para 24 that, “Copy of this judgment be uploaded on website and be also sent to Superintendent, Tihar Jail for intimation to the appellant and updation of records.”

             In a nutshell, we thus see that the Delhi High Court has clearly held in no uncertain terms that the guilt of the appellant for the murder of the deceased has been proved beyond reasonable doubt supported by circumstantial evidence that was forwarded by prosecution. So the conviction of the lower court was thus rightly upheld and then finally the Delhi High Court dismissed the appeal that was filed by the appellant! No denying it!

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First Petition: In the matter of Ebix

The Hon’ble National Company Law Appellate Tribunal (“NCLAT”) in its judgement dated 29 July 2020 has set aside an order of the National Company Law Tribunal (“NCLT”) which had inter alia, allowed the withdrawal of a resolution plan on the grounds that an unwilling resolution applicant would not be able to effectively implement a resolution plan. This plan had been proposed by Ebix Singapore Pte. Ltd., was approved by the Committee of Creditors (“CoC”) of Educomp Solutions Ltd., and was pending approval of the NCLT.

The two main prongs of challenge before the NCLAT were on:

 (a) the permissibility of withdrawal; and

 (b) preliminary bar on the application allowed by the NCLT due to principle of Res Judicata, which bars the re-litigation of the same matter between the same parties.

With relation to withdrawal, the NCLAT’s judgement sheds light on the following:

Scope of the NCLT’s Power to allow Withdrawal

The NCLAT held that the NCLT had no jurisdiction to entertain or permit a plea of withdrawal after a resolution plan had been approved by the CoC. The NCLAT also held that the NCLT cannot encroach on the commercial wisdom of the CoC, and can only satisfy itself that the plan complies with the requirements in Section 30(2). Further, given the facts of the case where the Request for Resolution Plans (“RFRP”) had clearly provided that no change in a plan would be permitted after the submission of the resolution plan and that the same was irrevocable, the resolution applicant could not be allowed to withdraw the plan by the NCLT

Period of Validity of a Resolution Plan

The NCLAT held that while the plan would not be binding upon parties till it is approved by the NCLT, the NCLT could only assess compliance with Section 30(2). It also specifically pointed out that in the facts of the case, the Respondents had continued engagement with the CoC and the NCLT for approval of the resolution plan even after the expiry of six months, and subsequent conduct shows that the plea on validity was not well-founded.

Withdrawal on Account of Delays

The NCLAT held that withdrawal of the plan on account of delays in the approval of the application by the NCLT, cannot be allowed. Allowing for withdrawal would permit resolution applicants to take advantage of the situation, and would result in the act of Court harming the stakeholders standing to benefit from the approval of the resolution plan, that could keep the corporate debtor running as a going concern.

Withdrawal due to Subsequent Investigations

The NCLAT held that since all the assets of the debtor would be available to the resolution applicant and the corporate debtor would be granted immunity under Section 32A, subsequent investigations would not change the commercial basis of the resolution plan, and withdrawal on this ground would not be tenable.

 Res Judicata

The NCLAT held that while the relief for withdrawal was not explicitly sought earlier, the new application would be barred by principles of constructive res judicata which requires parties to claim all reliefs as available at the time of filing the first application. The NCLAT also held that the NCLT did not have the power to grant/ reserve liberty to bring a fresh application and so the application would be barred by the principle of ‘res judicata’ notwithstanding such liberty. Finally, the NCLAT also held that it would not be legally tenable to argue that the plea of withdrawal was never considered by the NCLT in its earlier order, since the fact that revaluation was not granted points to the fact that the relief of withdrawal was denied.

Second Petition: In the matter of Kundan Care

The resolution applicant, Kundan Care, approached the NCLT seeking to withdraw its resolution plan approved by the CoC but awaiting approval of AA. It did so on the ground that the resolution plan became commercially unviable and unfit for implementation on account of delay in the conclusion of CIRP. Their plea was denied by NCLT, and further came to be rejected by the NCLAT. The NCLAT emphasized on “maintaining the sanctity of the resolution process” and held that a “Resolution Applicant whose Resolution Plan has been approved by Committee of Creditors cannot be permitted to withdraw its Resolution Plan”. Similarly, the NCLAT had earlier observed in Committee of Creditors of Educomp Solutions Ltd. v. Ebix Singapore Pvt. Ltd. that once the resolution plan is approved by the CoC, the applicant cannot take a “topsy turvy” stance, and hence, cannot withdraw the approved resolution plan. It cannot place reliance on the decision in Metalyst because “in that case, the Resolution Plan approved by the Committee of Creditors was found to be violative of Section 30(2)(e) of the I&B Code.” It held that since in the present case there is no violation under Section 30(2), therefore, it ought not to follow Metalyst as a precedent. The NCLAT held that once a Resolution Plan is approved by the Committee of Creditors, the Resolution Applicant cannot be permitted to withdraw the Plan and the NCLT has no jurisdiction to entertain such a plea of withdrawal in such cases. The Appellate Tribunal had followed its earlier decision in Educomp Solutions while holding so.

Third Petition: In the matter of Seroco Lighting

A Resolution Plan was provided by the Promoters of the Corporate Debtor (an MSME sector) was approved by the CoC, therefore, an Application was filed by the resolution professional u/s 30(6) of IBC, with a prayer to approve the CoC approved Resolution Plan submitted by the Resolution Applicant (Promoters), u/s 31 of the IBC. Subsequently the Resolution Applicant (Promoters) filed an IA seeking the Hon’ble NCLT to permit them to revise their CoC approved Resolution Plan stating reasons that their Resolution Plan was filed based on the Information Memorandum which was published 2 years ago and they were unaware of the corporate debtor’s current financial condition pursuant to Lockdown situation due to Covid-19. The Application filed by the resolution plan was allowed by the Hon’ble NCLT approving the Resolution Plan and the IA filed by the Resolution Applicant (Promoters) to modify/ withdraw their Resolution Plan, was disallowed with cost, by a common order. The IA was disallowed on the basis of Kundan care products vs. Amit Gupta, RP & Ors. The Resolution Applicant (Promoters) filed an Appeal against the order of the Hon’ble NCLT disallowing their prayer to revise their Resolution Plan. The Hon’ble NCLAT upheld the order of the Hon’ble NCLT stating that Successful Resolution Applicant cannot be permitted to withdraw the approved Resolution Plan coupled with the fact that the RA is a Promoter and is well aware of the financial health of the CD.

Submissions Before the Supreme Court

To summarize the arguments of the parties, the contended that Resolution Plans are in the nature of an offer, which becomes binding as a concluded contract only once the Adjudicating Authority has approved the Resolution Plan. Section 7 of the Contract Act,1872 requires the acceptance of offer to be absolute, unconditional and unqualified. Since the approval by the CoC is effectively conditional upon the confirmation of the Plan by the Adjudicating Authority, it cannot be said that there is absolute acceptance of the Resolution Plan. Alternatively, it has been argued that Resolution Plans approved by the CoC are contingent contracts, whose enforceability is conditional upon the approval of the Adjudicating Authority in accordance with Section 32 of the Contract Act.

The Respondents (RPs and the CoCs) have argued that a concluded contract comes into being when the Resolution Plan is approved by the CoC and a successful Resolution Applicant cannot renege from their contractual obligation to implement the Resolution Plan.

Order of the Supreme Court

Resolution Plans are not in a nature of a traditional contract per se, and the process leading up to their formulation and acceptance by the CoC is comprehensively regulated by the insolvency framework. The IBC framework, does not enable withdrawals or modifications of Resolution Plans, once they have been submitted by the RP to the Adjudicating Authority after their approval by the CoC. In any event, and without affecting the legal position formulated above, the Supreme Court dealt with the submissions of the parties that the contractual terms of respective Resolution Plans enabled withdrawal or re-negotiation of terms. The Supreme Court analysed as to whether the individual Resolution Applicants had specifically negotiated with the respective CoCs for a right of modification or withdrawal and are contractually entitled to the same.

The Ebix Appeal

On Res judicata:

Res judicata cannot apply solely because the issue has previously come up before the court. The doctrine will apply where the issue has been “heard and finally decided” on merits through a conscious adjudication by the court. In the present case, the NLCT’s order dismissing the First Withdrawal Application makes it clear that it had only considered only that part of prayer (iv) which related to re-evaluation of the Resolution Plan, possibly because Ebix had hoped to re-evaluate the Resolution Plan on the basis of the information received as a consequence of prayers (i) and (ii) and those prayers were rejected since such information was not available. The finding of the NCLAT on this issue was reversed and held that Ebix’s Third Withdrawal Application was not barred by res judicata.

Analysis of the Resolution Plan of Ebix:

Ebix has alleged that it is entitled to withdraw its Resolution Plan by relying on:

(i) the terms of the RFRP, which indicates that the Resolution Plan is binding on the Resolution Applicant only after approval by the Adjudicating Authority under Section 31;

(ii) the terms of the Resolution Plan which indicate that the Plan was valid for six months; and

(iii) the principles of contract law to urge frustration on account of fraud and erosion of the commercial substratum.

Ebix has also tried to argue that its position has changed manifestly because of new allegations which have come up in relation to the financial conduct of Educomp. Ebix was responsible for conducting their own due diligence of Educomp and could not use that as a reason to revise/ modify their approved Resolution Plan. In any event, Section 32A of the IBC grants immunity to the Corporate Debtor for offences committed prior to the commencement of CRIP and it cannot be prosecuted for such offences from the date the Resolution Plan has been approved by the Adjudicating Authority under Section 31, if the Resolution Plan results in a change of management or control of the Corporate Debtor subject to certain conditions.

Thus, in any case even if it is found that there was any misconduct in the affairs of Educomp prior the commencement of the CIRP, Ebix will be immune from any prosecution or punishment in relation to the same. The submission that Ebix has been placed in a prejudicial position due to the initiation of investigation into the affairs of Educomp by the CBI and SFIO is nothing but a red herring since such investigations have no bearing on Ebix.

Finally, it is also important to note that no clause of Ebix’s own Resolution Plans provides them with a right to revise/ withdraw their Resolution Plan after its approval by the E-CoC, but before its confirmation by the Adjudication Authority. Clause 9.1 permits withdrawal in the event the Resolution Plan is not approved in its entirety by the NCLT, while Clause 9.7 allows for an amendment for the purposes of implementation of the Resolution Plan but only when the E-CoC approves it with a seventy-five per cent vote. Hence, Ebix did not have any right under their own Resolution Plan to revise/ withdraw it. Even if the submitted Resolution Plan was considered as a conditional offer the terms did not enable a withdrawal of the Resolution Plan in the event that the Adjudicating Authority does not approve it under Section 31 within six months of its submission.

Duties of the RP:

Section 29 of the IBC places a duty upon the RP to provide an IM to the Resolution Applicant, containing such information which may be relevant to the Resolution Applicant to draft its Resolution Plan.

Under the IBC, there is a duty upon the RP to collect as much information about the Corporate Debtor as is accurately possible to do. When such information is communicated through an IM to the Resolution Applicant, the RP must be careful to clarify when its information is not comprehensive and what factors may cause a change.

In the present case, Ebix has alleged that the E-RP did not inform it of the financial investigations into the conduct of Educomp in a timely fashion. Ebix cannot dispute that E-RP had provided it the relevant information required under Section 29 to formulate its Resolution Plan. The issues in relation to financial investigations into the conduct of Educomp arose when the two articles were published by The Wire, both of which were after the Approval Application had been filed by the E-RP. Further, Ebix was aware of all the proceedings before the NCLT since the various applications were often listed along with the Approval Application, in which it continued to appear.

The Kundan Care Appeal 

The CIRP of Astonfield commenced on 27 November 2018. On 1 May 2019, GUVNL issued a default notice under Article 9.3.1(e) of the PPA, taking the initiation of the CIRP as an event of default for the termination of the PPA. The validity of the default notice was adjudicated upon by the NCLT in a judgement dated 29 August 2019. The NCLT set aside the default notice on the ground that the termination of the PPA would adversely affect the “going concern” status of Astonfield. On 15 October 2019, the NCLAT dismissed an appeal filed by GUVNL. On 29 October 2019, Kundan Care submitted a Resolution Plan for being considered by the A-CoC, which was followed by a final version on 12 November 2019. On 14 November 2019, the Resolution Plan submitted by Kundan Care was approved by the A-CoC with a vote of 99.28 per cent. On 15 November 2019, a Letter of Award was issued by the A-RP to Kundan Care, and the Resolution Plan was submitted to the NCLT for approval to under Section 31 of the IBC.

On 27 November 2019, GUVNL moved to the Apex Court in appeal against the order of the NCLAT dated 15 October 2019 (which was eventually dismissed). During the pendency of the appeal, the appellant moved an application before the NCLT for withdrawal of its Resolution Plan and for return of its PBG. In view of the pendency of the appeal before this Court, NCLT deferred consideration of the Resolution Plan till the disposal of the appeal. On the request of Kundan Care, their application was listed for hearing and dismissed on 3 July 2020 for want of jurisdiction to enable withdrawals. This decision of the NCLT was confirmed by the NCLAT on 30 September 2020. While Kundan Care’s appeal against this decision of the NCLAT was pending before this Court, Gujarat Urja (supra) was decided by the Apex Court on 8 March 2021.

In view of the above agreement which has been arrived at, the Apex Court exercised jurisdiction under Article 142 of the Constitution of India for a one-time relief and direct that:

• The A-CoC shall convene and take a decision on the proposal submitted by Kundan Care on 5 July 2021, and the response by EXIM Bank and PFCL dated 12 July 2021;
• In the event, that a revised Resolution Plan is agreed upon by the A-CoC, it shall be submitted through the A-RP for the approval of the NCLT within a week thereafter. In the event that a revised Resolution Plan is not agreed upon, the original Resolution Plan, as submitted before the NCLT on 15 November 2019, shall prevail; and
• The NCLT shall dispose of the application with the revised Resolution Plan expeditiously, and preferably within a period of two weeks from the date of receipt of an application from the A-RP for the approval of the revised Resolution Plan.

The Seroco Appeal  

The CIRP of Arya Filaments, an MSME, was instituted on 17 August 2018. Seroco submitted a draft Resolution Plan on 13 March 2019 for an amount of Rs 6.79 crores (approx.). Subsequent to meetings with the Arya-CoC and revisions to the Resolution Plan, Seroco’s plan was approved by the Arya-CoC on 10 May 2019. On 15 May 2019, the Arya-RP filed the Resolution Plan for approval before the NCLT. Form H was filed by Arya-RP on 5 June 2020.

Seroco addressed a letter to Arya-RP and Arya-CoC on 9 June 2020 seeking a modification of the Resolution Plan and the resolution amount to Rs 5.29 crores (approx.) on account of the economic slowdown caused by the COVID-19 pandemic, and subsequently filed applications before the NCLT and an appeal before the NCLAT seeking a modification of the Resolution Plan on account of the original being filed over eighteen months ago.

Seroco has relied on the terms of its Resolution Plan which envisage payment to the Arya-CoC by sale of land and building, and old/ unusable/ spare plant and machineries to urge that there has been a frustration of the contract because of the economic slowdown which must have impacted the value of these assets. The proposed revised solution envisages a further haircut to the Arya-CoC where Rs 1.5 crores less would be paid, over an extended timeline. There are no terms in the Resolution Plan or the Form H submitted by Arya-RP that could provide such a benefit to Seroco. To the contrary, Clause 19(vii) of the Resolution Plan provides that the preliminary approval of the Resolution Plan by the Arya-CoC is binding on Seroco.

Therefore, there is no scope to grant reliefs even on the terms of the Resolution Plan. As held in Section H of the current judgement, common law remedies available under the Contract Act are not available to the parties since a submitted Resolution Plan is not a contract which can be otherwise voidable on account of frustration, force majeure or other such instances. Hence, parties can only seek reliefs that are specifically envisaged in the IBC.

Other Findings:

• The extraordinary circumstance of the COVID-19 pandemic would have had a significant impact on the businesses of Corporate Debtors and upon successful Resolution Applicants whose Plans may not have been sanctioned by the Adjudicating Authority in time, for myriad reasons.
• The legislative intent of the Statute cannot be overridden by the Court to render outcomes that can have grave economic implications which will impact the viability of the IBC.
• The framework, as it stands, only enables withdrawals from the CIRP process by following the procedure detailed in Section 12A of the IBC and Regulation 30A of the CIRP Regulations and in the situations recognized in those provisions.
• Enabling withdrawals or modifications of the Resolution Plan at the behest of the successful Resolution Applicant, once it has been submitted to the Adjudicating Authority after due compliance with the procedural requirements and timelines, would create another tier of negotiations which will be wholly unregulated by the statute.
• Since the 330 days outer limit of the CIRP under Section 12(3) of the IBC, including judicial proceedings, can be extended only in exceptional circumstances, this open-ended process for further negotiations or a withdrawal, would have a deleterious impact on the Corporate Debtor, its creditors, and the economy at large as the liquidation value depletes with the passage of time.
• If the legislature in its wisdom, were to recognize the concept of withdrawals or modifications to a Resolution Plan after it has been submitted to the Adjudicating Authority, it must specifically provide for a tether under the IBC and/ or the Regulations.
• The Supreme Court also took note of thirty-second report of the Ministry of Corporate Affairs’ Standing Committee on Finance (2020-2021) on the ‘Implementation of Insolvency and Bankruptcy Code – Pitfalls and Solutions’ wherein the Committee felt that more than seventy-one per cent cases are pending for more than 180 days and the delays were attributable to: (i) the NCLT taking considerable time in admitting CIRPs; (ii) late and unsolicited bids by Resolution Applicants after the original bidder becomes public upon passage of the deadline for submission of the Plan; and (iii) multiplicity of litigation and the appellate process to the NCLAT and the Supreme Court. Such inordinate delays cause commercial uncertainty, degradation in the value of the Corporate Debtor and makes the insolvency process inefficient and expensive.
• The Apex Court observed that pending resolution plans have to be cleared keeping in view the timelines prescribed.
• Importing principles of any other law or a statute like the Contract Act into IBC regime would introduce unnecessary complexity into the working of IBC and may lead to unprotracted litigation.

Conclusion:

The judgement of Apex Court is noteworthy as it reemphasized that the speed of resolution as contemplated in the IBC is sacrosanct. Further, resolution by itself is not the goal of the IBC but resolution within the specific timeframe is in the essence of the IBC. These are two wheels of a chariot and one aspect cannot be ignored while considering another. Both of these aspects have to go together for a successful resolution. Therefore, endeavour should be made to complete the CIRP within a period of 330 days and the timeline should be treated as a norm and not the exception. The IPs, CoC, Resolution Applicant, NCLT, NCLAT should be sensitive to the effect of such delays and endeavour should be made on a best effort basis to adhere to the timelines stipulated under the IBC. The Apex Court has taken conspectus of the complete law on the aspect and explicitly clarified by the Apex Court that upon the approval of the resolution plan by the COC, the same cannot be withdrawn and hence, it inflicts a mandatory character on the implementation of the approved plan. The judgement once again propounded ‘creditor in control’ regime.

We conclude with the following observations of the Apex Court:

“We urge the NCLT and NCLAT to be sensitive to the effect of such delays on the insolvency resolution process and be cognizant that adjournments hamper the efficacy of the judicial process. The NCLT and the NCLAT should endeavor, on a best effort basis, to strictly adhere to the timelines stipulated under the IBC and clear pending resolution plans forthwith. Judicial delay was one of the major reasons for the failure of the insolvency regime that was in effect prior to the IBC. We cannot let the present insolvency regime meet the same fate”.

Author:

Ravi Charan Pentapati is a Partner at Link Legal. (Views are personal)

[1] COMMITTEE OF CREDITORS OF EDUCOMP SOLUTIONS LTD. VS. EBIX SINGAPORE PTE. LTD. OTHERS (Civil Appeal No. 3224 of 2020 & others)

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a)      Rameshwar Prasad v Union of India,[3] is a landmark case, in this the Supreme Court reviewed the constitutional validity of the centre’s decision of dissolution of Bihar State Legislative Assembly and the validity of the proclamation of President’s Rule under Article 356 of the Constitution. This situation arose because in the State Elections of Bihar in 2005 a fractured verdict was delivered, which resulted the Governor recommending an Emergency in the State. Subsequently, political shuffles ensued between parties and the National Democratic Alliance (NDA) claimed to have the requisite numbers to form a Government. The Governor, however, wrote to the President informing him that financial incentives had made politicians switch their support, and then submitted a final report to the President recommending dissolution of the assembly.[4]  The court’s verdict was, that the dissolution of a state assembly and a proclamation of President’s Rule is unconstitutional, it also said the court has the power to restore a dissolved assembly of any state by the appropriate measures. The court in its verdict stated that an assembly is ‘duly constituted’ when the election commission declared the names, as per Section 73 of the Representation of People’s Act, 1951. This judgement highlights how an executive and legislation comes into existence after an election.

b)      In State of Rajasthan v Union of India[5], initially a question arose in Rao Birinder Singh v Union of India[6], whether the right to declare emergency under Article 356 is with the executive branch of the government and could it be judicially scrutinised. The court in this case held that, courts have no jurisdiction to ask for review of material on which the president has depended his reasons or ‘satisfaction’.

Similarly, in State of Rajasthan v Union of India, the court unanimously declared that the power under Article 356 is out of the scope of review. The court reasoned that any such proclamation of emergency could either be a ‘preventive or a curative action’,[7] so the satisfaction attained would be subjective in nature and could not be assessed through any tests. The court also concluded that the centre can give directions to the state if it is of the opinion that the state government are acting in ways which contravene the provisions of law.

c)      The S.R. Bommai v Union of India [8] case is a very important case, herein the apex court decided the extent and scope of judicial review of president’s reasoning for Proclamation of Emergency under Article 356. It was decided that the power granted by the said article is reviewable on various grounds, such as whether the data provided to the president by the cabinet is relevant and the reasoning for proclamation was justified and not made in bad faith. The court also decide that such proclamation is subject to review so as to ensure that they do not violate the basic structure of the constitution. further such review is permissible and pertinent because if a state has followed the provision in the constitution and there is no probable reason of any proclamation of emergency, it is not justifiable to proclaim on just because there is different political party at centre that at the state.

d)      In U.N.R. Rao v Indira Gandhi[9], the question before the court was whether an executive government could exist even after the dissolution of the legislature. The court interpreted the language of Article 74(1), which states that there “shall” be a council of ministers which assist the president, this council will remain in office even after the dissolution of the legislators or Lok Sabha. The court reasoned that in case of approaching article 74 as merely directory and switching the word “shall” with “may”, it would mean as the president acting independently without any aid from the council of ministers. therefore, even if the Lok Sabha is dissolved a parliamentary form of government requires that a democratically elected branch is present to advise the president.

e)      In Samsher Singh v State of Punjab[10], the issue under question was the Governor’s power which enables him to recruit persons to the judicial services, conferred under Article 234 of the Constitution of India. The contention of the petitioners was that the Governor should act in their personal capacity instead of relying on the aid and advise of the Council of Ministers. Since India follows the example of United Kingdom which is a Parliamentary Form of Government, this implies that the Governor or President is only a nominal head and the real power vests in the prime minister. Hence, it was decided that the Governor should take the advice of the Council before deciding on matters.

f)       In Ram Jawaya Kapur v State of Punjab[11],  this followed the verdict of Samsher Singh, it held that the before the executive can perform its duties it must have the confidence of the legislature and that executive action takes place subject to the control and authority of the legislature.[12]

g)      The Additional District Magistrate Jabalpur v Shivkant Shukla[13], is a very important case, and has been mentioned in many publications, a very crucial precedent for the courts. This was filed in the backdrop of 1975 Proclamation of Emergency, after certain individuals were detained under Maintenance of Internals Security Act, 1971, filed for an issuance of a writ of habeas corpus in several high courts. The proclamation of 1975 had suspended Articles 14, 21 and 22 of the Constitution. Therefore the 1975 Presidential Order was ‘unconditional’, that is, it suspended appeal without reference to any particular statute, leaving the High Courts no standard against which to evaluate detentions.[14] The High Court said that they were empowered to assess the rightness of the detention orders on the grounds of ‘internal disturbance’ therefore, the court decided that ‘no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous consideration’[15].  

h)      In Minerva Mills v Union of India[16], this case was subsequent to the ADM Jabalpur case and it received a similar verdict. The petitioner challenged the constitutionality of legislation passed by the 1976 Parliament, on the grounds that its life had been extended by Proclamations that were unreasonably prolonged (the 1971 Proclamation) or mala fide (the 1975 Proclamation).[17] Confronted with the Attorney General’s claim that a Proclamation was not justiciable because ascertaining whether the country faced a grave emergency was a ‘political question’, PN Bhagwati J responded that it would be improper for the Court to decline to investigate whether the President had failed to abide by the provisions of Article 352.[18]

i)       In Rameshwar Oraon v State of Bihar and Ors.[19], the court held that the State Governments have to necessarily act according to the direction they have given by the Central Government.

j)       In State of Karnataka v Union of India & Another[20], the court stated that the Central Government has the power to give direction to the State Government, doing so not because of geographical or territorial unit reason but because they are constitutionally or legally empowered to do so.

The abovementioned cases are related to various issues that have arisen between the centre and states, the judgements given are not necessarily correct, such as the ADM Jabalpur case and the Minerva Mills case, the obiter has been changed in later cases after much debate and deliberations. These cases have been uses time and again for reference and are some of the very notable pieces of judgements given in the legal history.

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Kunal Saha Vs. AMRI (Advanced Medical Research Institute) –

Anuradha, a child psychologist, she had come to her hometown Kolkata in March 1998 for a summer vacation. She complained to them of her skin rashes on April 25 and had consulted Dr. Sukumar Mukherjee, who, without prescribing any medicine, asked her to take a rest. As rashes appeared more aggressively, on May 7, 1998, Dr Mukherjee prescribed Depomedrol injection 80 mg twice daily, a step that specialists later faulted at the apex court. After administering the injection, Anuradha’s condition worsened rapidly, following which she had to be admitted to AMRI on May 11 under Dr Mukherjee’s surveillance. Saha, in his plea before NCDRC, had necessitated a record of Rs 77 crore as Compensation. While granting Rs 1,72,87,500 as Compensation to Saha for his wife’s death, NCDRC had held the U.S. doctor accountable for contributing to the three Kolkata doctors. The hospital’s negligence ordered a 10 percent reduction in the amount of Compensation, making it Rs 1.55 crore. Another doctor was also involved in Anuradha’s treatment, Abani Roy Chowdhury, had passed away during the case’s pendency. As Anuradha’s condition failed to improve, she flew to Breach Candy Hospital, Mumbai. there she was found to be suffering from a rare and deadly skin disease called Toxic Epidermal Necrolysis (TEN).

She died there on May 28, 1998.

Saha then filed a criminal and a civil case against the doctors and both the hospitals on the grounds that they were grossly negligent in her treatment, leading to her death. In brief, these were the case’s facts and circumstances; in this case, the Supreme court gave the final verdict on October 24, 2013, and Compensation of around  6.08 crore for his wife’s death.

V. Krishan Rao v Nikhil Super Speciality Hospital 2010 –

Krishna Rao, an officer in the malaria department, filed a complaint against the hospital for negligently conducting his wife’s treatment. The hospital treated her for typhoid and giving medication for the same instead of malaria fever. The complainant’s wife complained of respiratory trouble. The complainant also brought forward to the notice of the authorities that, artificial oxygen to the patient. In Accordance to the complainant at that stage, artificial oxygen was not necessary, but without ascertaining the patient’s actual necessity, the same was given.  As the treatment has been given for typhoid, the medicines would have been for the exact cause and cure also has their side effect. They have been very negligent while discharging their sole duty towards their patient.

When the judgement was given, Rao was given a compensation of Rs 2 lakhs. In this case, the principle applied was Res Ipsa Loquitor, which means ‘the thing speaks for itself. Thus, the Compensation was awarded to the plaintiff.

 Samira Kohli vs. Dr. Prabha Manchanda and Ors –

The court held that consent given for diagnostic and operating laparoscopy does not consent for a total hysterectomy with bilateral salpingo-oophorectomy. The appellant was not a minor, neither mentally challenged nor disabled. As the patient was a sane adult, there was no question of someone else giving consent on her behalf. The appellant was under anesthesia, thus unconscious, and as there was no emergency. The respondent should have waited till the appellant regained consciousness and gave proper consent. The question of taking the patient’s mother’s consent does not arise in the absence of an emergency. Consent given by her mother is not valid or accurate consent. The issue was not about the accuracy of removing reproductive organs but the failure to obtain consent for removing the reproductive organs as performing surgery without taking consent amounts to an unauthorized intrusion and interference with the appellant’s body. The respondent was restrained from paying the surgery fee wholly but directed to pay only the Compensation of unauthorized surgery.

Indian Medical Association v. V.P. Shantha –

The supreme court has reiterated that services rendered to a patient by a medical practitioner (except where the doctor cause services free of charge to every patient or under a contract of personal service) by way of consultation, treatment and diagnosis, both surgical and medical, would fall within the service as defined in section 2(1) (o) of the Consumer Protection Act 1986. The judgment has faced a lot of opposition from the people involved in the medical field. However, this judgment has come as a wave of relief for all the consumers. With rampant increase in commercialization of services, including medical services, the patient has now become a mere consumer. This causes deterioration in the fiduciary relationship between a doctor and his/her patient. This judgment that reaches the arms of the Consumer Protection Act, 1986 to the medical profession will undoubtedly enable to keep a check on the doctors to discharge their duties diligently, for it is always the patient’s life at stake. It will make the method of treatment and surgery more transparent. One negative aspect of this judgment is that it does not prescribe any relief or Compensation for free medical services.

Consequently, solely doctors who work in paid hospitals fall under the scanner, while those who work in hospitals giving free medical services will go safe if they perform any error. Also, the burden of proof is upon the patient to prove negligence on the doctor’s part. Somewhat, the burden of proof should be shifted onto the doctor to prove that he was keen enough while performing his duties.

Spring Meadows Hospital v. Harjot Ahluwalia –

In this case Court, held that when a young child was carried to a private hospital by parents and treated by the doctors. Then not only just the child but his parents are also treated as a consumer under the Consumer Protection Act. Hence, a parent can claim the Compensation under the Consumer Protection Act. Therefore, the court ruled in favor of the child’s parents and the child who was the service’s beneficiary. The hospital argued that adequate care had indeed been taken and hence would not be authorized to pay compensation for the mental agony the parents have went through. They disputed that the parents would not come under the definition of consumer in the consumer protection act. The court accurately pointed out that this contention was false since the consumer’s definition under the act includes parents.

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M/S. Super Cassettes Industries Private Limited and Ors vs Nandi Chinni Kumar and Ors 

Bench: Honourable M.S.Ramachandra Rao, Honourable T.Amarnath Goud

Court: High Court of Telangana 

Civil Miscellaneous Appeal Nos.355, 356, 357 and 358 of 2020

CMA.No.355 and 356 of 2020

Date of Judgment:19 October 2020

Act: Copyright Act, 1957

Facts of the case: The plaintiff, a music record label and film production company filed a suit against a former gangster turned football player. The defendant no.1 gave film rights of his story to the plaintiff who registered the film script with the title ‘Slum Soccer’ with the Telangana Cinema Writers’ Association. However, soon after registering the film script for Slum Soccer, the plaintiff read about a film titled ‘Jhund’, which was based on the life story of the defendant no.2 who was defendant no1’s coach. Although the film Jhund was based on the life story of the defendant no.2, the story of the film included the story of the defendant no.1. The plaintiff then informed defendant nos. 1to 12 about the previous agreement and warned them that they would be liable for copyright infringement. The plaintiff filed a suit seeking a perpetual injunction prohibiting defendant nos. 3 to 12 from exhibiting or broadcasting the movie Jhund in all the theatres in India and abroad. In response to the suit, the defendants stated that no case had been made out by the plaintiff for grant of injunction against them and other defendants from proceeding with the release of the film titled ‘Jhund’. Further, defendants 3, 5, 6 and 7 also contended that it is possible to make a movie only on the coach, the 2nd defendant, without having the character of the 1st defendant, the alleged Don turned Footballer who captained the Indian Slum Soccer Team in the Slum Soccer World Cup. 

Judgement: The court observed from the teaser of the film ‘Jhund’ that there are distinct similarities in the plot, depiction and the life and story of the protagonist of the film as with the registered script of ‘Slum Soccer’ of the plaintiff, and that the defendants have not specifically denied any of these aforementioned allegations of the plaintiff with regard to similarities between the film scripts. The court held that there was a strong prima facie case of infringement against the defendants and opined that an  interim injunction should be granted in favour of the plaintiff.

Disney Enterprises, Inc. and Ors. vs. Kimcartoon. to and Ors.

Coram: Honourable Mr Justice Rajiv Shakdher

Court: High Court of Delhi 

CS(COMM) 275/2020 & I.A. No.6089/2020

Date of Judgement: 27/05/2020

Act: Copyright Act, 1957

Facts of the case: The plaintiffs in this matter were companies incorporated in the United States of America involved in the business of creation, production and distribution of motion pictures and cinematograph films. The defendants in this lawsuit included several rogue websites that had provided users with free access to pirated content. The Department of Telecommunications (DoT) and the Ministry of Electronics and Information Technology (MEITY) were also included as co-defendants by the plaintiffs, along with several ISPs (Internet Service Providers). The Plaintiffs filed a law suit against the defendants for streaming original and copyrighted content created by the Plaintiffs, without acquiring any prior authorization from the Plaintiffs. After reviewing the list of the infringing websites submitted by the Plaintiffs and the content made available on those websites, the court opined that the Defendants were infringing on the plaintiffs’ copyrights.

Judgement: The court restrained the Defendants from hosting, streaming, reproducing, distributing, making available to the public and/or communicating to the public, or facilitating the same on their websites through the internet in any manner whatsoever, any cinematograph work, content, program or show in which the Plaintiffs owned copyrights. Further, the court granted an interim injunction in favour of the Plaintiffs to ensure that the original content created by the Plaintiffs was protected, and directed the Plaintiffs to file the necessary applications before the court in case of any further infringement by these websites. The court ordered the Department of Telecommunications (DoT) and the Ministry of Electronics and Information Technology (MEITY) to issue necessary directions/notifications to various ISPs in general to block access to the defendants’ websites.

Vinay Vats vs. Fox Star Studios India Pvt. Ltd. and Ors

Coram: Honourable Mr Justice c. Hari Shankar

Court: High Court of Delhi 

I.A. 6351/2020 in CS(COMM)

Date of Judgement: 29 January 2020

Act: Copyright Act, 1957

Facts of the case: The plaintiff, a writer filed a law suit against a production house claiming to be the original scriptwriter and owner of the copyright of the script of the film titled ‘Tukkaa Fitt’, and alleged that the film ‘Lootcase’ produced by the Defendant had the same story as the film Tukkaa Fitt produced by M/s. AAP Entertainment Limited. Though the production of the film was completed in November 2012, the film got delayed as one of the producers died. The film Lootcase was set to release on 31st July 2020. However, the Plaintiff chose to file a lawsuit for the grant of an interim injunction mere days before the release of the film, despite the film’s trailer launched almost a year before the release date. The Defendants stated that the film’s storyline was a very common one, which had been previously used in several films. Further, the Defendants stated that according to the documents submitted by the Plaintiff, the producers of the film Tukkaa Fitt had paid a certain sum of money to the Plaintiff to purchase the script of the film and all the rights subsisting therein. Due to this, the extent of the Plaintiff’s rights over the film’s script needed to be clarified. 

Judgement: The court observed that copyright can only be granted for the expression of an idea and not for the idea itself, and that an idea can be expressed in several forms. According to the court, the most reliable way to determine whether two films were the same in terms of the execution was to see the audience’s reaction to both the films. If the audience found any similarities between the films, then the next step was to ascertain the extent of such similarity. The court opined that the balance of convenience lay in favour of the Defendant. The court was not convinced with the Plaintiff’s claim of becoming aware of Lootcase’s release only recently, since the media had been covering the film for a year before the release date. Further, the court stated that by filing a lawsuit only a few days before the film’s release, the Plaintiff tried to compel the court to expedite the proceedings to get an interim injunction to halt the film’s release. The court, therefore, decided in favour of the Defendant and dismissed the Plaintiff’s plea for the grant of an interim injunction.

M/s. Indian Record Manufacturing Co. Ltd. vs. Agi Music Sdn Bhd, Illaiyaraja and M/s.Unisys Info Solutions Private Ltd.

Coram: Honourable Dr Justice G. Jayachandran

Court: High Court of Madras 

C.S.No.296 of 2016 & O.A.No.338 of 2010

Date of Judgement: 13/02/2020

Act: Copyright Act, 1957

Facts of the case: The plaintiff in this matter was a renowned music company engaged in the production, distribution and sale of music albums in various forms. Defendant no.2 was a famous music composer, who, over the years, had composed music for several South Indian films. Since this suit was contested solely by Defendant no.2, Defendants no.1 and 3 remained ex-parte. The subject matter of this dispute was the music that Defendant no.2 had composed for many films produced by the Plaintiff, by virtue of which Defendant no.2 claimed to be the author these musical compositions, and was in the process of selling the copyrights to Defendant no.1. The Plaintiff was also made aware of the same, following which it filed a copyright infringement suit against Defendant no.2., claiming that it had acquired the copyright and other rights subsisting in the musical compositions from the respective producers of the films, as they were the first owners of such copyright. The court accepted the Plaintiff’s copyright ownership claims in the musical compositions and stated that, since the producers of the film had commissioned the musical works composed by Defendant no.2, the producers were the first and rightful owners of such compositions. The court emphasized the definition of the term ‘cinematograph film’, as defined in the Copyright Act, and stated that it is the producer who puts together several elements to make a complete film. Therefore, only a producer was legally vested with the authority to assign to third parties, the individual rights in each of these separate elements.

Judgement: The court observed that Defendant no.2 was unable to furnish the necessary evidence to support the claims of authorship and subsequent ownership over the musical compositions. The Plaintiff on the other hand was able to satisfy the court by submitting the agreements between the plaintiff and the respective producers to substantiate the claims of ownership of copyright made by the Plaintiff. As a result of this, the order was decided in favour of the plaintiff, and the claims of Defendant no.2 were dismissed.

Star India Private Limited vs Union Of India 

Coram: Honourable Justice S. Muralidhar

Court: High Court of Delhi 

W. P. (C) 879/2010

Date of Judgement: 30 September 2011

Act: Copyright Act, 1957

Facts of the case: This suit dealt with the issue of copyright infringement by various streaming websites that continue to provide access to illegal content. In this present matter, the Plaintiff, which was in the business of producing and distributing films, filed a copyright infringement suit against multiple defendants, who ran different streaming websites, for illegally streaming the plaintiff’s film ‘Mission Mangal’. The Plaintiff also included as defendants in the suit, those departments of the Government of India, which issue notifications concerning blocking of the impugned websites. Before the release of the Plaintiff’s film ‘Mission Mangal’, the Plaintiff had conducted a private investigation into the Defendants’ websites and submitted the findings of these investigations as evidence before the court. The Plaintiff had confiscated infringing materials, including content which was made available on the Defendants’ websites for downloadingand viewing, without the required authorization from the plaintiff, thereby making such content infringing. The evidence presented to the court contained screenshots of all the Defendants’ websites that showed the Plaintiff’s film being made available on the defendants’ websites for downloading and streaming, before the official release date of the film. The Plaintiff also identified those internet service providers (ISPs), who were providing services to the Defendants’ websites.

Judgement: The Court ordered the internet service providers to block access to the Defendants’ websites and also ordered the suspension of the Defendants’ domain names by the corresponding authority. Further, the court directed the Department of Telecommunications (DoT) and the Ministry of Electronics and Information Technology (MeitY) to issue a notification to any website that the Plaintiff notified to be illegally transmitting or broadcasting the cinematograph film ‘Mission Mangal’ in any manner. Since the court did not receive any response from the majority of the Defendants to its notices, the order was decided in favour of the Plaintiff, granting the injunction along with damages deemed appropriate by the court.

Giant Rocket Media And Entertainment Pvt. Ltd vs Ms Priyanka Ghatak And Ors

Coram: Honourable Mr Justice Rajiv Sahai Endlaw

Court: High Court of Delhi 

IA No.18527/2019 (of plaintiff u/O XXXIX R-1&2 CPC) & IA No.82/2020 (of D-1&2 u/O XXXIX R-4 CPC)

Date of judgement: 7th January 2020.

Act: Copyright Act, 1957

Facts of the case: This case involved three defendants, wherein, Defendant no.1 was a scriptwriter, Defendant no.2 was a production house and Defendant no.3, was a retired Joint Commissioner, Central Bureau of Investigation (CBI) and the author of the book “CBI Insider Speaks: Birlas to Sheila Dikshit”, from which, chapter no.7 was to be adopted by the Plaintiff into a web-series. The Plaintiff claimed that Defendant no.2 along with help of Defendants no. 1 and 3, had infringed upon the Plaintiff’s idea to adapt the aforementioned chapter no.7 into a web-series, for which the Plaintiff had previously sought the rights from Defendant no.3. Chapter no.7 from the book was based on the true story of the murder of Syed Modi, who was an eight-time national badminton champion. The court stated that the primary issue, in this case, was whether the chapter itself, as written by Defendant no.3, fulfilled the originality of expression requirement of the Copyright Act. In the court’s opinion, since the story covered in chapter no.7 was a true story, it was already part of the public domain due to which it may not have qualified as copyrightable work.

Judgement: The court, in this case, held that, since the story mentioned in chapter no.7 was not fictional, and was merely the narration of the crime and its prosecution, the Plaintiff did not have sufficient grounds to claim exclusive rights over the contents of chapter no.7 of the book written by Defendant no.3. Each of the scripts belonging to the Plaintiff and Defendant no.2, respectively, narrated their versions of this true crime story. In light of the aforementioned facts, the court concluded that, while the Plaintiff did not have a prima facie case for interim relief, Defendants no. 1 and 2 also did not act fairly. In addition to this, the evidence provided was insufficient to show that the balance of convenience lay with the Plaintiff. As a result of this, the court dismissed the Plaintiff’s appeal for an injunction against the web-series released by Defendant no.2 and vacated the ex-parte ad-interim order.

Sajeev Pillai vs Venu Kunnapalli

Corum: Honourable Mrs Justice Shircy V.

Court: High Court of Kerala 

FAO. no.191 of 2019 against the order in I.A. no. 6058 of 2019 in OS 9/2019 of II

Date of Judgement: 11 December 2019

Act: Copyright Act, 1957

Facts of the case: The appellant Sajeev Pillai, a film director and a scriptwriter, claimed to have researched the history of the grand festival Mamankam and prepared a script for a movie based on the same epic. He met Venu Kunnapalli and signed an MoU with Kavya Film Company which was associated with Kunnapalli. Sajeev was initially appointed as the director but then his service was terminated and was replaced by someone else. The shooting of the movie was thereafter completed which Sajeev alleged was done by mutilating, distorting and modifying his script. Sajeev in light of that filed a suit seeking various reliefs. An interim injunction application was also filed to restrain the respondents from releasing, publishing, distributing and exploiting the film and issuing pre-release publicity without providing adequate authorship credits to Pillai as per film industry standards.

Judgement: The Kerala High Court in the present case, referred to the relevant sections of the Copyright Act, 1957. Section 57 of the Copyright Act,1957 states the Author’s special right. The High Court in its judgement stated that “What is enshrined in Section 57(1) (a) of the Copy Right Act is that even if the copyright has been assigned, the author of a work shall have the special right to claim the authorship of the work. Section 57 (1) (b) consists of two segments. The first part would entitle the author to restrain the opposite party from making any distortion, mutilation or modification of any other action concerning the said work if it would be prejudicial to his honour or reputation. The second part says that the author is entitled to claim damages in respect of any distortion, mutilation or other modifications in the said work or any other action, concerning the copyrighted work which would be prejudicial to his honour or reputation.” The law is, therefore, clear that even after the assignment the author has the legal right to protect his intellectual property.

The Court refrained from staying the release of the movie.However, it granted relief to the aggrieved script writer by directing that nobody’s name will be exhibited as the script writer or as a writer of the screenplay of the movie ‘Mamankam’ anywhere or in the advertisements till the disposal of the suit by the Trial Court.

Raj Rewal vs Union Of India & Ors

Coram: Honourable Mr Justice Rajiv Sahai Endlaw

Court: High Court of Delhi 

CS(COMM) 3/2018, IA No.90/2018 (u/O XXXIX R-1&2 CPC) & IA No.92/2018 (u/s 80(2) CPC)

Date of judgement: 28 May 2019

Act: Copyright Act, 1957

Facts of the case: The present case talks about one Mr Raj Rewal who designed and Mr Mahendra Raj who was the structural designer of the Hall of Nations building. The said building was hailed as an icon of modernist Indian architecture and was erected in the Pragati Maidan grounds in New Delhi. The ITPO in 2016, proposed to demolish the Hall of Nations complex to build an ‘Integrated Exhibition cum Convention Centre’. Despite several attempts made by the Plaintiff to protect the building from demolition, it resulted in what ITPO desired. Post demolition of the building the Plaintiff instituted a suit against the actions of ITPO by claiming that the actions of demolition had derogated the Plaintiff’s special rights under Section 57.

Judgement: The court observed that the plaintiff, in this case, cannot be allowed to prevent the demolition of the building by the defendant as it would in turn amount to a restriction of the defendant’s right to practice their control over their property and land which is provided to them under Article 300A which is a constitutional right that prevails over the statutory rights of the plaintiff which they claim to exist under Section 57 of Copyright Act, 1957. The court further states that the author’s right under Section 57 to prohibit ‘distortion, mutilation or modification’ of his work does not permit an author to prevent the destruction of their work since “that what cannot be viewed, seen, heard or felt, cannot be imperfect and cannot affect the honour or reputation of the author.” Therefore, the extent to which the right vested in the architect extents to is to prevent the building owner to refrain from making changes in the design made by the architect and passing it off as if the design was made by the architect. The court reasoned that the ‘reconstruction’ envisaged under Section 52(1)(x) could only take place if the building had already been demolished. The court stated that Section 57 could not reasonably contemplate the right to object to the demolition of a building. In conclusion, the court dismissed the suit due to lack of cause of action against the demolition of the Hall of Nations.

Yash Raj Films Pvt Ltd vs Sri Sai Ganesh Productions & Ors

Coram: Honourable Mr Justice Manmohan

Court: High Court of Delhi 

CS(COMM) 1329/2016

Date of Judgement: 08 July 2019 

Act: Copyright Act, 1957

Facts of the case: Yash Raj Films (YRF), a renowned production house and the plaintiff in this matter, was the producer of the Bollywood film Band Baja Baarat which was released on December 10, 2010 in India and other countries. YRF proclaimed through a public notice in May 2011 that it had not sold the copyrights of the film to any third party and was the sole owner of the same. In December 2011, the Plaintiff came to know that Sri Sai Ganesh Productions, one of the defendants in this case, intended to remake the film in Telugu. The plaintiff sent two cease and desist notices to the defendants, one in January 2012 and the other in April 2012 but received no response. The plaintiff issued a third notice when the defendants released a trailer. The defendants ignored the notice and released the film titled Jabardasth in February 2013. The defendants had also sold their rights to a Tamil production house for its remake, which was to be released in April 2013. The plaintiff filed a copyright infringement suit against Sri Sai Ganesh Productions, the director and the distributor of the Telugu film (collectively referred as the ‘defendants’) for blatantly copying the plot, theme and character-sketch of their movie.

Judgement: The court held that copyright exists in the ‘cinematographic film’ independent from other underlying works that come together to constitute it and that there is a requirement of originality to exist in ‘cinematographic films’ which can be read into from Section 13(1)(b) of the Copyright Act, 1957 through Sections 13(3)(a) and 2(d) of the said Act even though it has not been explicitly mentioned.  The court stated that the expression ‘to make a copy of the film’ provided in Section 14(d)(i) of the said Act does not simply mean creating a physical copy of the film by process of duplication. In this case, the court found that the defendants had blatantly copied the fundamental, essential and distinctive features of the plaintiff’s film. Thus, the court decreed the suit in favour of the plaintiff and against the defendants.

Tips Industries Ltd vs Wynk Ltd. And Anr

Bench: Honourable S.J. Kathawalla

Court: High Court of Bombay 

Ordinary Original civil jurisdiction in its commercial division

Notice of motion (l) no. 197 of 2018 in

Commercial IP suit (l) no. 113 of 2018 and

Notice of motion (l) no. 198 of 2018 in

Commercial IP suit (l) no. 114 of 2018

Date of judgement: 7 May 2019

Act: Copyright Act, 1957.

Facts of the case: Tips Industries Ltd (Plaintiff) was an Indian music label that exercised copyright over a significant music repository. In 2016, it granted Wynk Music Ltd (Defendant) license to access this music repository. After the expiry of the license both the parties attempted to renegotiate the licensing conditions but failed to do so following which Wynk took refuge by invoking Section 31D of the Copyright Act. Tips challenged Wynk’s invocation of Section 31D and prosecuted Wynkaccording to Section 14(1)(e) for breach of their exclusive rights of sound recording.

Judgement: The court in this case found Wynk guilty of direct infringement on two grounds. The first was to offer the copyrighted work under section 14(1) (e) (ii) which allowed the users to download and listen to the plaintiff’s work offline. The second was under section 14(1) (e) (iii) for communicating the plaintiff’s works to the users via their streaming service. The Court found Section 31D to be an exception to copyright which ought to be strictly interpreted. The court opined that statutory licensing was intended to cover only radio and television broadcasting but not internet broadcasting, as per the statutory scheme of 31D and the rules accompanying it. The court said that, despite the global existence of internet streaming services,when the Section was inserted through an Amendment Act of 2012, the legislation even though being aware of it omitted to include such services from the ambit of Section 31D. The court held that the plaintiff was entitled to an interim injunction, having regard to the reality that they had made a prima facie case, would suffer irreparable harm in the way of lost revenue.

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INTRODUCTION

The narco-analysis test uses a chemical substance known as sodium pentothal which is intravenously injected into the body of the test-subject. The subject then enters into a state of hypnosis with all inhibitions shed, and responds to all questions put to him, without knowing that such responses may incriminate him. Since the subject remains in a semi-unconscious state, there are good chances that he may reveal every such detail which he may not otherwise.

On the other hand, is the Brain Electrical Activation Profile (BEAP), commonly known as brain mapping. It employs electrodes as a tool which is attached to the scalp of the subject, and records the electrical waves emitting from the subject’s brain. A number of auditory and visual stimuli, ones which are relevant to the facts being investigated (material probes) as well as those which are not relevant (neutral probes) are placed before the subject, and inferences relating to subject’s information of a crime are drawn thereof. The underlying principle is that when exposed to the material probes, the subject will emit the P300 waves as a result of familiarity with those materials. Therefore, this kind of diagnosis is also known as the P300 waves test.

Of the similar kind is the Polygraph Test or the Lie Detection Test. Instruments like the cardiograph, pneumograph, cardio-cuffs, and electrodes are attached to the body of the test subject and physiological reactions namely the pulse rate, blood pressure, respiration rate, etc. to the questions put before him are examined. Fundamentally, the test rests on the theory that when a person gives a false reply to a question put to him, his body produces a reaction different from replies given in a normal circumstance.  

These investigative techniques, however humanitarian as an alternative to physical torture, still raise serious questions of individual rights and liberties.[1] More so because the drugs used in these tests have serious and negative effects on the human body, particularly the brain. A class of drugs, known as the Barbiturates, are used to extract information and detect lie of the concerned person. Some of the drugs under this heading are Scopolamine, Pentothal or sodium thiopental, Amytal, Seconal, Butabarbital, Pentobarbital, Belladona and Phenobarbital. Commonly known as the “truth serum”, the term is a misnomer… the drugs are not sera and they do not necessarily bring forth probative truth.[2] Experts have recorded that the barbiturates generally affect the most advanced brain centers. The cerebral cortex- that region where most complex mental activities occur- yields first to the disturbance caused to the nerve-tissue function. Even the lowest of doses of barbiturates weaken the functioning of the cerebral cortex; the drugs disable the sensory circuits of the human nervous system. The larger doses of barbiturates may even cause death by stopping respiration. It occurs because of the cortex no longer actively integrating information, and the cerebellum, the “lesser brain” sometimes called the great modulator of nervous function, ceases to perform as a control box.[3] Equivalently, some side effects of barbiturates include drowsiness, headache, hypotension, nausea, skin rash, abnormally slow breathing, hallucination, coma, and temporary breathing cessation.[4] More so, experts opine that there is evidence to suggest that individuals with good defenses and emotional control cannot be manipulated or anyone who has who can withstand the stress of competent interrogation in the waking state can do so in narcosis.[5]

THE LAW OF EVIDENCE IN INDIA

The Indian Law of Evidence has no express stand on the issue of admissibility of information procured as a result of narco-analysis test. Although, there are some provisions which entails the position of this law on the technique.

The definition of ‘evidence’ under the Indian Evidence Act, 1872 is as under:

“Evidence” means and includes

(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of act under inquiry; such statements are called oral evidence;

(2) All statements including electronic records produced for the inspection of the Court; Such statements are called documentary evidence.[6]

The question then arises, whether the results derived as a result of the narco-analysis test and the brain mapping can and should be considered as evidence, or not. A combined reading of Ss. 24 to 27[7] of the Act suggest that such statements would be barred from being admissible as evidence and be rendered meaningless in event of even a slimmest hint coercion, intimidation, or any other kind of influence. Confessions caused by inducement, threat or promise are inadmissible under Section 24[8] of the Indian Evidence Act. When an accused undergoes the narco-analysis test, he has no control over his conscious and has to answers questions put to him against his will. Impliedly, such confessions become inadmissible in Court of law. The confessions made in presence of the agency conducting the procedure and the police are also hit by Section 25 of the Act.[9]

THE CASE OF SMT. SELVI V. STATE OF KARNATAKA[10]

The case pertains to the legality of three scientific tests, viz. the narco-analysis, polygraph test, and the Brain Electrical Activation Profile (BEAP) on the touchstone of Arts. 20(3) and 21 of the Constitution of India and under Ss. 161(2) of the Code of Criminal Procedure, 1973. The matter at hand pointed out a need to strike a balance between the increasing need for efficient investigative techniques and upholding the right to personal liberty.

The petition was a criminal appeal challenging the involuntary administration of techniques as violative of the principle of right against self-incrimination as envisaged under Art. 20(3) of the Indian Constitution. The appellant contended that subjecting accused or witnesses to such diagnostic tests without their consent is completely violative of the fundamental rights. It was termed that “these scientific techniques are a softer alternative to the …use of ‘third degree methods’ by investigators.”[11]

The State contended that since it is their obligation to prevent crimes and criminal activities, these tests aid in extracting information and collecting evidence where it is particularly challenging to do so. Since procedural administration of substances into the body does not cause any physical harm, it should not pose any issues whatsoever.

Thus, the issues framed by the Court were as follows:

I.                    Whether the involuntary administration of the impugned techniques violates the ‘right against self-incrimination’ enumerated in Article 20(3) of the Constitution?

I-A. Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject?

I-B. Whether the results derived from the impugned techniques amount to ‘testimonial compulsion’ thereby attracting the bar of Article 20(3)?

II.                 Whether the involuntary administration of the impugned techniques is a reasonable restriction on ‘personal liberty’ as understood in the context of Article 21 of the Constitution?

While dealing with the debate on the issue, the Court placed reliance on various authorities including precedents from the United States and Canada. Also, it perused some of scholarly works on these techniques. It was noted that, the impugned tests are used for various purposes in various fields. Its use particularly in criminal justice system is dichotomous; the need of the hour is that we keep up with the fast pace changes in technology but at the same time no individual can be deprived of his liberty. Thus, the 3-judge Bench held that the involuntary administration of these diagnostic techniques would lead to infringement of ‘right against self-incrimination’. It further elaborated that,

“The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual’s choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible ‘conveyance of personal knowledge that is relevant to the facts in issue’. The results obtained from each of the impugned tests bear a ‘testimonial’ character and they cannot be categorized as material evidence.”[12]

Thus, an individual, whether an accused or a witness, cannot be made to forcefully undergo any of the said techniques to expose him to any consequences either of penal nature or otherwise. No technical justification can be legitimate that permits invasion into a person’s mental privacy. The results inferred from the use of these techniques, due to their limitations, also are in conflict with the principle of ‘right to fair trial’ which the Apex Court has upheld in several of its judgement.

Interestingly, it should be noted that the Court did leave some scope for voluntary administration of the impugned techniques with regards to criminal investigation with proper safeguards in place. Even in such instances, the test results by themselves cannot be admitted as standalone evidence, reason being lack of control of the subject over his responses during the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872.[13]

The Bench also reiterated the Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused’ of 2000 as issued by the National Human Rights Commission and laid strict emphasis for duly following them. Briefly, they are as follows:

1.      An option should be provided to the accused to avail the Lie Detector Tests. Such a test can be administered only after such accused has consented to it.

2.      If the accused opts for the test after such option has been given to him, he should be given access to a lawyer. The lawyer and the police should explain to him the physical, emotional and legal implications of the test.

3.      The consent of the accused should be recorded before a Judicial Magistrate.

4.      The accused having agreed to undergo the lie detection test should be duly represented by a lawyer at the time of hearing before the Magistrate.

5.      The accused person must be explained, at the hearing, in clear terms that statements by him shall not be considered as ‘confessional statements’ made to the Magistrate and shall be regarded as statement made to the Police.

6.      The duty is cast on the Magistrate to consider all the factors relating to the detention of the accused, including the length of such detention and nature of interrogation.

7.      The actual procedure of Lie Detection Test shall be conducted by an independent agency, such as a hospital and shall be duly recorded. The procedure must be carried out in the presence of the lawyer.

8.      The information received, the full medical and factual narration of it must be taken on record.

CONCLUSION

The narco-analysis test, the brain mapping as well as the polygraph test hold a very high value in criminal investigation process. Although the Indian Evidence Act, 1872 is silent on employing these techniques, the constitutional courts have time and again touched upon the issue of whether such methods should be employed or not through its judgments in a selected number of cases. The issue of should these processes be permitted to be used in investigations and interrogations is still widely debated among jurists, scholars and the commoners alike.

The technique of narco-analysis has proved to be valuable and profoundly effective in sensational cases like the Aarushi Talwar murder case, the Nithari killings case, the Telgi scam, and the Mumbai Bomb Blasts case. The powers of the police authorities have been curbed by the provisions of the Constitution as well as other special and local legislations, and act as a bar on the way in which they can be exercised. Though, through the significant judgment in Smt. Selvi, the Supreme Court has cleared the air on when can these techniques are employed and when can they be not, the authorities need to rethink upon the use of these scientific methods of investigation. The side effects placed on record by experts should in no way hamper further investigation and controlled experiments of the said drugs. The tests have the potential to essentially ensure fair and timely justice.

The post Evidentiary value of Narco-Analysis and Brain Mapping in India vis-à-vis Smt. Selvi & Ors. v. State of Karnataka (2010) appeared first on Legal Desire Media and Insights.

• Sales Associates v Forever 21 and Gucci and Sterling jewellers and Wal-Mart

This present case was a collective complaint by the brands of forever 21, Gucci, sterling jewellers and Wal-Mart. The main issue with the case of was of sexual harassment, discrimination and negligence at work place. The initial complaint was made by a forever 21 sales women who allegated that the company had installed CCTV camera within the employee bathrooms. This revelations was only made when the video when viral on internet further casing harassment to the worker. She also added that she had faced frequent sexual taunts from the manager. This was added by a testament by sterling jewellers first female CEO that she had faced on several accounts harassment by the male executives of the company.

It was further added by the court that within The United States of America especially in retail sector majority of the workers were women which amounted to 4.6 million of them thus the court ruled that proper protocol is necessary within these firms for the treatment of women to avoid any kind of harassment and discrimination based on gender.

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• Star Athletica v. Varsity Brands

In this case, the main question before the court was that were two dimensional or 3 dimensional graphics were copyrightable or not if printed on some commodity. As per the facts varsity brands had more than 200 graphic registrations which they used to print on cheerleading costumes. The copyright included various line patterns, colours and shape formations. Star athletica was sued for copyright infringement since they had printed one such design on their cheerleading costumes. The district granted athletica with a judgement which was of the view that design and the product itself could not be separated thus were ineligible for copyright.

Furthermore, it was ruled by the higher court that any kind of two dimensional and three-dimensional graphics can be very well separated and identified thus were eligible to exist independently. The court also mentioned that any such design that was capable to be depicted in a pictorial and sculpture form, when separated from the product, could very well come within the ambits of copyright. 

• Louis Vuitton v. My Other Bag

This is a very interesting case law where the company by the name of “My other bag” made a parody tote bag where the famous picture of Louis Vuitton bags was printed. The court a very important view in the case stating the a parody product must convey two simultaneous and contradictory messages at the same time which are that the product printed is an original but also it is not original but a parody. This case paved the path for all those products and brands which came into the ambits of parodies.

The company of my other bag was sued under the charges of copyright infringement and design theft. It was argued by sued company’s side that Louis Vuitton has continuously acted like a trademark bully within the industry by the looks of their past actions while Louis Vuitton on the other side contended that its actions are in support of the policy of active protection of their intellectual property. The court ruled that such approach cannot be approved every time and their has to be some sort of freedom provided to the brands in context of their products and as in this case the product was a parody so the charges were not approved.

• Puma v. Forever 21

In the present case puma has filed a suit against forever 21 under the charge of copyright and design infringement of the sneakers manufactured by them by the name of Creeper Sneaker, Fur slide and Bow slide which were part of the Fenty collection which was personally designed by celebrity Rihanna Fenty. The fact which differentiated the case from others was that here the issue of copy right infringement was dealt in relationship with the fact that it was specifically designed by a celebrity and was also endorsed within the public through her name. the court observed that within the copyright application Rihanna’s name was nowhere mentioned nor was she being involved within the suit.

Conclusively, it was rued b the court that as far as the plea of trade dress infringement was concerned, it was justifiably denied stating the reason that just because a specific celebrity was related to the product or endorsed it cannot be the reason to be granted the protection of copyright while it was duly granted on the basis of design uniqueness. Further plea regarding the activity infringement was also granted.

• Rajesh Masrani v/s Tahiliani Designs Pvt. Ltd 

In the present case the question arose within the court that does the patterns printed on the fabrics qualifies as artistic work or not and can it be protected under copyright act and design act. It was contended by the respondent that other than the copyright protection granted to the fabric designs which are drawn for production even the patterns printed on the fabric should be protected under the design act. The present case was an appeal as under the previous judgement Rajesh masrani was prohibited from producing, selling or advertising any kind of similar fabric.

The court stated that any such designs only come under the ambit of copyright protection when not more than 50 such commodities are produced for commercial use. While in the present case only 20 pieces with the specific design were created due to which justified protection was granted and any similar printing, selling or advertising of a similar pattern was prohibited.

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