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Bombay High Court Weekly Round-Up:...

Bombay High Court Weekly Round-Up: June 17 To June 22, 2024

Amisha Shrivastava

26 Jun 2024 12:45 PM IST

Reports/Judgments

Similar Trademark For Drug Treating The Same Ailment But Having Different Composition From Already Registered Trademark Is Deceptive: Bombay High Court

Case Title: Glenmark Pharmaceuticals Ltd. v. Gleck Pharma (OPC) Pvt Ltd. & Ors.

Citation: 2024 LiveLaw (Bom) 293

A single judge bench of the Bombay High Court comprising of Justice Firdosh P. Pooniwalla, held that structurally & phonetically similar trademark can't be registered for drug treating similar ailment but having different composition from already registered mark, as it may create confusion for consumers leading to potential side effects.

Bombay High Court Grants Temporary Injunction In Favor Of Pidilite In Infringement Suit For Cement Container Design

Case Title: Pidilite Industries Limited v. Astral Limited

Citation: 2024 LiveLaw (Bom) 294

The Bombay High Court granted ad interim injunction in favour of Pidilite Industries Limited (Pidilite) restraining Astral Limited (Astral) from infringing Pidilite's registered design of Coex plastic containers of its M-SEAL PV SEAL products.

Justice Firdosh Pooniwalla held, “the Plaintiff has made out a prima facie case for grant of ad-interim reliefs in terms of prayer (a) of the Interim Application. If the injunction as sought in prayer (a) is not granted, then grave loss, harm and prejudice would be caused to the Plaintiff as the Defendant would then continue to use the impugned container with the design of the Plaintiff.”

The court rejected the Defendant's argument that the Plaintiff's container design is a mere trade variant of a known design and cannot be protected under Section 19(1)(c) of the Designs Act. The court found this argument to be incorrect as the Defendant failed to show any prior design similar to the Plaintiff's design.

The court outlined three factors to determine if an article's design is a trade variant: the nature and size of the article, its utilitarian nature, and whether only minor changes are possible, which may still be substantial enough to render the design novel.

The court found that the Plaintiff's container design was not significantly similar to any known designs or combinations thereof. The features of the Plaintiff's design were substantially different and not minor or inconsequential, the court said. Additionally, the Defendant, being in the same trade, had not produced a container with a similar design until recently, supporting the originality of the Plaintiff's design, the court held. “The Defendant has failed to demonstrate that there is any prior design or one very similar to it that precedes the Plaintiff's design or that the Plaintiff has merely created a trade variant”, the court observed.

Bombay High Court Calls For Robust Mechanism To Impose Costs For Misuse Of Judicial Process In Rape Cases Stemming From Failed Relationships

Case Title: Saket Abhiraj Jha v. State of Maharashtra & Anr.

Citation: 2024 LiveLaw (Bom) 295

Highlighting that rape cases stemming from failed relationships between adults waste the valuable time of both the police and the courts, the Bombay High Court called for a robust mechanism to impose heavy costs on individuals who misuse the judicial process.

Justice Pitale highlighted the recurring nature of such cases in urban areas like Mumbai, which leads to wastage of valuable time which can be otherwise utilized in investigating serious offences.

“With passage of time, the alleged victim and the accused come together, having resolved their differences and then the victim gives consent for grant of bail and even for quashing of such proceedings...This Court is of the opinion that in such cases a robust mechanism ought to be developed for imposing heavy costs on such individuals who end up wasting the time of the Investigating Authority as well as the Court. In an appropriate case, this Court shall proceed to pass such an order”, the court stated.

The court granted bail to one Saket Abhiraj Jha, who was arrested for various alleged offences, including rape, extortion, and defamation under the IPC and the Information Technology Act, 2000 (IT Act).

Indian Succession Act | Bombay High Court Larger Bench To Decide Whether Probate Of Will Can Be Revoked In Cases Not Covered In Section 263

Case Title: Sarwan Kumar Jhabarmal Choudhary v. Sachin Shyamsundar Begrajka

Citation: 2024 LiveLaw (Bom) 296

The Bombay High Court referred to a larger bench the question of whether explanations to Section 263 of the Indian Succession Act, 1925, which deals with the grounds on which probate of a will can be revoked or annulled for “just cause”, are exhaustive or merely illustrative.

Justice Manish Pitale referred the following questions to the larger bench –

“(I) Whether explanations (a) to (e) to Section 263 of the Indian Succession Act, 1925, are exhaustive or illustrative, in the context of “just cause” for revoking or annulling grant of Probate or Letters of Administration?

(II) Whether circumstances not covered under explanations (a) to (e) to Section 263 of the Succession Act, 1925, can become the basis for “just cause” for the Court to revoke or annul grant of Probate or Letters of Administration?

(III) Whether the judgements of learned Single Judges of this Court in the cases of George Anthony Harris vs. Millicent Spencer [AIR 1933 Bom 370] and Sharad Shankarrao Mane and etc vs. Ashabai Shripati Mane [AIR 1997 Bom 275], lay down the correct position of law?”

[Commercial Courts Act] Plaint Can't Be Rejected For Bypassing Pre-Institution Mediation If It Genuinely Seeks Urgent Reliefs: Bombay High Court

Case Title: Chemco Plast Applicant/Defendant In the matter between: Chemco Plastic Industries Pvt. Ltd. v. Chemco Plast

Citation: 2024 LiveLaw (Bom) 297

The Bombay High Court dismissed an application filed under Order VII Rule 11 of the CPC, by defendant Chemco Plast seeking rejection of a trademark infringement suit filed against it by plaintiff Chemco Plastic Industries Pvt. Ltd.

The court observed that the suit is not barred under section 12A of the Commercial Courts Act (mandatory mediation) as it contemplates urgent interim reliefs.

“this Court finds that on the basis of the pleadings in the plaint, the documents filed therewith, as also on the basis of the pleadings in the application for interim reliefs, the plaintiff has indeed made out enough grounds to demonstrate that it does contemplate urgent interim reliefs, thereby showing that the plaint in the present case cannot be rejected as being barred by section 12-A of the aforesaid Act”, the court observed.

Bombay High Court Orders Inquiry Into Functioning Of Juvenile Court After Clerk Allegedly Disobeys HC Orders8

Case Title: XYZ v. State of Maharashtra & Anr.

Citation: 2024 LiveLaw (Bom) 298

The Bombay High Court directed the Principal District Judge, Thane to conduct an inquiry into the functioning of Juvenile court in Bhiwandi, Mumbai after a clerk allegedly refused to accept charge sheet in a case despite HC orders.

A division bench of Justice AS Gadkari and Justice Neela Gokhale was dealing with an application filed by a juvenile accused seeking quashing of the FIR.

“Prima facie, it appears to us that the clerk Mr. Sudhir Pawar attached to Juvenile Court at Bhiwandi has blatantly flouted the Orders passed by this Court. He has displayed total disregard for our Orders. It is unfortunate to note that even the Presiding Officer of that Court namely Smt. Seema Ghute is either oblivious to the orders passed by this Court or has feigned deliberate ignorance thereto. We strongly condemn this conduct of Mr. Pawar and find the conduct of the Registry of the said Court disgraceful. It clearly amounts to interference in the smooth administration of criminal justice. It also appears to us that the Presiding Judicial Officer has no control over her Court and, therefore her role also needs to be examined by the Principal District Judge”, the court observed.

Bombay High Court Allows Release Of Film 'Hamare Baarah' After Makers Agree To Delete Certain Portions & Add Disclaimer

Case Title: Azhar Basha Tamboli v. Ravi S Gupta & Ors.

Citation: 2024 LiveLaw (Bom) 299

The Bombay High Court allowed the release of film "Hamare Baarah", on June 21, 2024 after the makers agreed to make certain changes in the movie.

A division bench of Justice BP Colabawalla and Justice Firdosh Pooniwalla passed the order in a writ petition seeking a ban on the film on the ground that it is derogatory to Islam and married Muslim women in India.

The petitioner agreed to not raise any objection to the release of film after the agreed-upon changes are made to the movie.

The makers agreed to mute certain dialogues and a Quranic verse and put two disclaimers of 12 seconds each in the film.

Bombay HC Confirms Conviction of Teacher for Sexually Assaulting 3 Students

Case Title: Ramesh Ratan Jadhav v. State of Maharashtra & Ors.

Citation: 2024 LiveLaw (Bom) 300

The Bombay High Court upheld the conviction of one Ramesh Ratan Jadhav, a primary school teacher, for sexually assaulting three minor girls in the classroom.

Justice Kishore C Sant observed, “The evidence of the victim girls is found to be reliable. The presence of the accused is not denied. Though the defence is taken of animosity as a motive for false implication, the same does not appear to have been taken from the cross-examination & statement under Section 313.”

The prosecution alleged that Jadhav, while teaching in a primary school, sexually assaulted three girls, who were in the second standard. The incidents occurred in the classroom, where Jadhav allegedly touched the girls' vaginas and chests after making them lie down on the table and floor. An FIR was registered on December 24, 2021, at Ratnagiri Rural Police Station, leading to Jadhav's arrest, charge sheet, and trial.

The court noted that the minor victims' evidence was consistent and corroborated by other witnesses, including the male students who were sent outside the classroom. The defence's argument of a false implication due to school management disputes was not supported by the cross-examination or Jadhav's statement under Section 313 of the CrPC, the court noted.

The court found no reason to interfere with the Trial Court's judgment and dismissed the appeal.

Dress Code Violation: Bombay High Court Orders Bar Council Action Against Lawyer For Attending Without Robes

Case Title: KN Surendran Pillai v. State of Maharashtra & Ors.

Citation: 2024 LiveLaw (Bom) 301

The Bombay High Court directed the Bar Council of Maharashtra and Goa (BCMG) to take action against Advocate Jagdish M. Ahuja for appearing in court without the prescribed attire of bands and Advocate's Gown.

Justice Prithviraj K Chavan noted in his order –

“He is not in proper attire, in the sense, he is without bands and Advocate's Gown as prescribed by the Rules. The Bar Council of Maharashtra and Goa shall initiate appropriate action against him.”

Bombay High Court Upholds Entertainment Duty Demand Of Rs. 71 Lakhs On Film & Television Producers Guild Of India For 2006 APSARA Awards

Case Title: Film & Television Producers Guild of India (FPGI) ) v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 302

The Bombay High Court upheld the state government's demand for entertainment duty of Rs. 71,87,500 on the Film & Television Producers Guild of India (FPGI) for organizing the APSARA Awards Function in 2006.

A division bench of Justice KR Shriram and Justice Jitendra Jain, however, struck down the penalty of the same amount imposed of FPGI.

The petitioner contended that the APSARA award function did not fall within the ambit of "entertainment" as defined under Section 2(a) of the Act, especially considering the amendments introduced in 2010 which specifically included "award function" within the scope of entertainment subject to concessional rates. The petitioner argued that since the function was held prior to 2010, it should not be subjected to entertainment duty.

The court noted that while the definition of "award function" was formally inserted into the Act in 2010, the scope of "entertainment" had always encompassed performances and exhibitions, irrespective of the amendment year.

The court rejected the petitioner's contention that subsequent insertion is to be construed to mean that award function would not fall within the definition of “entertainment” prior to 2010 as “misconceived”.

Bombay High Court Upholds ITAT's Order Directing Vodafone India To Deposit Rs.230 Crores For Staying Income Tax Demand

Case Title: Vodafone India Services Pvt. Ltd. v. Assistant Commissioner of Income Tax

Citation: 2024 LiveLaw (Bom) 303

The Bombay High Court upheld the order passed by the Income Tax Appellate Tribunal (ITAT) directing Vodafone India to deposit Rs. 230 crores for staying income tax demand.

The bench of Justice GS Kulkarni and Justice Somasekhar Sundaresan directed the petitioner, Vodafone India, to deposit an amount of Rs. 230 crore, being the lowest or minimum amount of 20% of the disputed tax demand, which, in our opinion, is clearly in consonance with the provisions of Section 254(2A) of the Income Tax Act.

The first proviso to Section 254 (2A) of the Income Tax Act provides that the ITAT may grant stay under the first proviso, subject to the condition that the assessee deposits not less than 20% of the amount of tax, interest, fee, penalty, or any other sum payable.

Pending Criminal Proceedings Won't Change Nature Of Commercial Dispute: Bombay High Court Declines SBI's Plea To Reject Rs 36 Crore Recovery Suit

Case Title: Bombay Iron And Steel Labour Board v. State Bank of India

Citation: 2024 LiveLaw (Bom) 304

The Bombay High Court dismissed an interim application filed by the State Bank of India (SBI) seeking rejection of a Commercial Summary Suit filed by the Bombay Iron and Steel Labour Board for recovery of deposits worth Rs. 36 crores with interest.

Justice Abhay Ahuja held that the dispute between the parties qualifies as a commercial dispute and is eligible to be tried under the Commercial Courts Act, 2015, as it is a banking transaction.

“the Defendant – bank which is a banking company / banker, has in the ordinary course of its business, accepted the deposits of money from the Plaintiff – Board which is repayable on demand or maturity and issued fixed deposit receipts which are mercantile documents and the suit has been filed for enforcement of the fixed deposit receipts, as the Defendant – bank had failed to repay the amounts payable to the Plaintiff – Board, despite demand / legal notice for recovery, therefore, in my view, the dispute is a commercial dispute, squarely falling within the definition of commercial dispute as defined under Section 2(1)(c)(i) of the Commercial Courts Act.”

The court held that the allegation of fraud, in the plaint would not change the cause of action of the suit, which is a failure of SBI to pay the amount with interest accrued as per the fixed deposit receipts, despite legal notice as well as the pre-institution mediation. The plaintiff claimed that mediation failed as SBI refused to participate.

Non-Communication Of SCN To Call Book Is Fatal; Bombay High Court Quashes SCNs Against ICICI Home Finance

Case Title: ICICI Home Finance Company Ltd. v. UOI

Citation: 2024 LiveLaw (Bom) 305

The Bombay High Court, while quashing show cause notices against ICICI Home Finance Company Ltd., held that non-communication of show cause notices transferred to the call book is fatal.

The bench of Justice K.R. Shriram and Justice Jitendra Jain observed that the reason why the show cause notices were transferred to the call book was because of the SLP pending in the Apex Court in Malabar Management Services Pvt. Ltd. The legality of the issues raised in Malabar Management Services Pvt. Ltd. has attained finality, and in Union of India & Anr. vs. . Intercontinental Consultants & Technocrats Private Limited, the issue is decided in favor of the assessee. Therefore, petitioner's case was kept in abeyance in view of the pending SLP in the Apex Court, and it is accepted that the issue covered the issue in petitioner's case as well. It would, therefore, serve no purpose in adjudicating the show cause notice.

The bench did not accept the suggestion made by the department that they should be permitted to proceed with the adjudication of show cause notices and remarked that it could be nothing but an exercise in futility.

Slump Sale Doesn't Amount To Sale Of Goods Within MVAT Act: Bombay High Court

Case Title: Piramal Enterprises Limited v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 306

The Bombay High Court held that slump sale under the Business Transfer Agreement (BTA) would not amount to sale of goods within the purview of the Maharashtra Value Added Tax (MVAT) Act.

The bench of Justice G. S. Kulkarni and Justice Jitendra Jain observed that it was completely a flawed approach on the part of the reviewing authority to tax part of the BTA considering it to be petitioner's sales/turnover of sales, for the financial year 2010-11 in respect of the amounts of the intangible assets as set out in schedule 3.3 of the BTA. Thus, in the context of the BTA, the reviewing authority could not have regarded the intangible items to be in any manner “sale of goods”, so as to fall within the petitioner's turnover of sales.

The issue raised was whether the department could tax sale of the petitioner's 'Base Domestic Formulation Business' as a “going concern” (slump sale) under the provisions of the Maharashtra Value Added Tax Act, 2002.

Bombay High Court Criticizes Judge For Using “Handicapped” To Express Frustration Over Heavy Caseload

Case Title: Godrej Projects Development and Anr. v. Zakir Ramzan Qureshi and Ors.

Citation: 2024 LiveLaw (Bom) 307

The Bombay High Court criticized an Additional Sessions Judge for using the word “handicapped” to express frustration over heavy case load.

Justice Prithviraj K Chavan observed, “The tone and tenor of the language is unwarranted and unacceptable, in the sense, the Judicial Officer should not have expressed his frustration and inability by using the words “handicapped” as well as non inclination to grant stay.”.

Employee's Conduct Of Filing Petitions Does Not Show Abandonment Of Claim For Reinstatement: Bombay High Court

Case Title: Patil Samgonda Namgonda v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 308

A single judge bench of the Bombay High Court comprising of Gauri Godse, J., while deciding Writ Petition in the case of Shri. Patil Samgonda Namgonda v. State of Maharashtra, held that employee's conduct of filing petitions does not show the abandonment of claim for reinstatement in service.

Employees Once Accepting Promotion On Particular Basis Without Protest, Are Estopped From Challenging The Same: Bombay High Court

Case Title: Shripad Dwarkanath Gupte and Ors v. Union Of India

Citation: 2024 LiveLaw (Bom) 309

A division bench of the Bombay High Court comprising of Devendra Kumar Upadhyaya, CJ. & Arif S. Doctor, J., while deciding Writ Petition in the case of Shri Shripad Dwarkanath Gupte And Ors vs Union Of India, held that employees once accepting the promotions on grade wise basis without protest, are estopped from challenging the same.

Even If Case Doesn't Fall Under Section 36(3) Second Proviso, Court Can Consider Whether To Grant Unconditional Stay: Bombay High Court

Case Title: CFM Asset Reconstruction Pvt. Ltd. and Anr. v. M/s. SAR Parivahan Pvt. Ltd. and Ors.

Citation: 2024 LiveLaw (Bom) 310

The Bombay High Court bench of Justice Firdosh P. Pooniwalla held that even in a case which does not fall under the second proviso of the Section 36(3), by relying on the first proviso, the Court can consider whether to grant unconditional stay of the award or not.

Section 36 of the Arbitration and Conciliation Act, 1996 deals with the enforcement of arbitral awards. It outlines the procedure for enforcing an arbitral award once the time for challenging the award under Section 34 has expired.

Other Developments

Bombay High Court Slams Maharashtra Govt on Living Will Implementation

The Bombay High Court pulled up the state government for not establishing a sufficient mechanism to enforce living wills, highlighting the lack of a secondary medical board necessary for the execution of these directives.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Amit Borkar was hearing a PIL filed by Dr. Nikhil Datar, a Mumbai-based gynaecologist, seeking the proper implementation of the Supreme Court's directive on passive euthanasia.

“This is unfortunate that a person has to file a petition seeking a direction from this court to comply with the directions issued already by the Supreme Court. This judgment is already there. This judgment is to facilitate your functions. Why can't you have a permanent secondary board? What's the difficulty?” Chief Justice Upadhyaya asked the state.

"Even Elon Musk Has Flagged Issues With EVMs": Plea In Bombay HC Challenges Ravindra Waikar's Poll Victory From Mumbai North West Constituency

Bharat Khimji Shah, a candidate who contested the recently held Lok Sabha elections from the Mumbai North West constituency, has filed a writ petition in the Bombay High Court challenging the victory of Shiv Sena's Ravindra Waikar.

The petition, filed through advocate Asim Sarode, seeks to declare Waikar's win null and void, citing multiple concerns about transparency and alleged malpractices during the vote counting process.

“It is the first time that, through this incidence a specific process of fraud through EVM has come to light and hence must be dealt with iron hands. This has become an important issue of discussion not just throughout India but even Mr. Elon Musk has thrown light on the issue of risk involved while using EVMs recently through his post on his X (formerly, twitter) account…”, the petition states.

"We should eliminate Electronic Voting Machines. The risk of being hacked by humans or AI, while small, is still too high," Musk had said in his post.