Delhi High Court Weekly Round Up: August 22 To August 28, 2022

NOMINAL INDEX

Citations 2022 LiveLaw (Del) 792 TO 2022 LiveLaw (Del) 805

AUSTIN NICHOLS & CO INC & ANR v. GWALIOR DISTILLERIES PRIVATE LTD 2022 LiveLaw (Del) 792

FIJA & ANR. v. State 2022 LiveLaw (Del) 793

ZAHOOR AHMAD SHAH WATALI v. NATIONAL INVESTIGATION AGENCY 2022 LiveLaw (Del) 794

KAILASH SEWANI v. MANISH KUMAR CHAUDHARY 2022 LiveLaw (Del) 795

Kapri International Pvt. Ltd. versus Commissioner of Income Tax 2022 LiveLaw (Del) 796

MEHTA TEACHER TRAINING COLLEGE v. NATIONAL COUNCIL FOR TEACHER EDUCATION & ANR. and other connected petitions 2022 LiveLaw (Del) 797

Ernst and Young U.S. LLP versus Assistant Commissioner of Income Tax 2022 LiveLaw (Del) 798

Whatsapp LLC v. CCI, Facebook v. CCI 2022 LiveLaw (Del) 799

Jahid v. State 2022 LiveLaw (Del) 800

Overnite Express Ltd v. DMRC 2022 LiveLaw (Del) 801

Case Title: DEVASRI BALI v. CENTRAL BOARD OF SECONDRY EDUCATION & ANR 2022 LiveLaw (Del) 802

Baba Alexander v. Delhi Transport Corporation & Anr. 2022 LiveLaw (Del) 803

Diageo Brands BV & Anr. v. Great Galleon Ventures Ltd. 2022 LiveLaw (Del) 804

Commissioner of CGST Delhi East Versus Anand and Anand 2022 LiveLaw (Del) 805

1. Royal Stag v. Royal Champ: Delhi HC Decrees Alcohol Brand Seagram's Trademark Infringement Suit, Awards ₹20 Lakhs Damages

Case Title: AUSTIN NICHOLS & CO INC & ANR v. GWALIOR DISTILLERIES PRIVATE LTD

Citation: 2022 LiveLaw (Del) 792

Ruling in favour of Seagram's alcohol brand, the Delhi High Court has awarded Rs. 20 lakhs damages and cost in its favour in a suit alleging trademark infringement in respect of Royal Stag whiskey by a company manufacturing Royal Champ whiskey.

Justice Navin Chawla permanently restrained Gwalior Distilleries Private Limited, engaged in sale of Royal Champ whiskey observing that the impugned label was a "colourable and slavish imitation" of ROYAL STAG label.

The Court also said that the same amounted to copyright infringement under sec. 51 read with sec. 55 of the Copyright Act.

2. [Muslim Law] Minor Girl Can Marry Without Parents' Consent On Attaining Puberty, Has Right To Live With Husband Even When Below 18 Yrs: Delhi HC

Case Title: FIJA & ANR. v. State

Citation: 2022 LiveLaw (Del) 793

The Delhi High Court has observed that as per Mohammedan Law, a minor girl who had attained the age of puberty can marry without consent of her parents and has a right to reside with her husband even when she is less than 18 years of age.

Justice Jasmeet Singh made the observation while granting protection to a muslim couple who got married in March this year as per Muslim rites and rituals. The plea was moved by the couple seeking directions to ensure that nobody separates them.

The parents of the girl opposed the marriage and registered an FIR under sec. 363 of IPC against the husband. Subsequently sec. 376 and sec. 6 POCSO were added.

3. Terror Funding Case: Delhi High Court Dismisses Zahoor Watali's Appeal Against Denial Of Bail On Ground Of Covid-19

Case Title: ZAHOOR AHMAD SHAH WATALI v. NATIONAL INVESTIGATION AGENCY

Citation: 2022 LiveLaw (Del) 794

The Delhi High Court has dismissed the appeal filed by Kashmiri businessman Zahoor Ahmad Shah Watali challenging the Trial Court order denying him bail last year on the ground of COVID-19, in connection with a terror funding case.

Watali had challenged the order passed by Trial Court dated 15th May 2021 wherein it was concluded that there was no question of granting bail to him only on the ground of spread of COVID-19 pandemic. The Trial Court also took note of his medical condition as he was suffering from various ailments including diabetes, hyperthyroidism, piles etc.

Thereafter, on January 31, 2022, the Trial Court had, till further orders, directed Watali to be kept under house arrest at his Gurugram residence for his medical treatment.

4. Article 227 Not Mercy Jurisdiction, Litigants Casually Prosecuting Proceedings Before Lower Courts Can't Expect Sanctuary From High Court: Delhi HC

Case Title: KAILASH SEWANI v. MANISH KUMAR CHAUDHARY

Citation: 2022 LiveLaw (Del) 795

Litigants cannot be casual about prosecuting the proceedings before the Court below and expect sanctuary from the High Court under Article 227, the Delhi High Court has observed.

Justice C Hari Shankar added that the jurisdiction vested in High Court by Article 227 is not expected to be used as an avenue for a party "to tide over the negligence exhibited by it before the Court below."

"Nor is Article 227 in the nature of mercy jurisdiction," the Court added.

The Court made the observation in a plea filed challenging an order dated 11th July 2022 passed in a civil suit wherein the petitioner was the defendant in. By the impugned order, the Civil Judge had rejected the petitioner's request to have the written statement taken on record.

5. Application Under Companies Act Against Order Rejecting Waiver Of Interest; Dispute Falls Within Scope Of VSV Act: Delhi High Court

Case Title: Kapri International Pvt. Ltd. versus Commissioner of Income Tax

Citation: 2022 LiveLaw (Del) 796

The Delhi High Court has ruled that where an application under the Companies Act has been filed by a company in liquidation against the order of the revenue authorities rejecting the application for waiver of interest for delay in payment of tax dues, the said dispute would fall within the scope of Direct Tax Vivad Se Vishwas Act, 2020 (VSV Act).

The Bench consisting of Justices Mukta Gupta and Anish Dayal ruled that the VSV Act is not a taxing statute but one which provides a dispute resolution scheme for tax disputes and hence, it would be amenable to a purposive construction. The Court held that it was the intent of the legislature to include all sorts of disputes under the VSV Act, even if they were pending before the Commissioner of Income Tax or the courts.

6. Article 19(1)(g) | Citizens' Right To Establish Educational Institution Can Be Restricted Only By Legislative Enactment, Not Mere Circulars: Delhi HC

Case Title: MEHTA TEACHER TRAINING COLLEGE v. NATIONAL COUNCIL FOR TEACHER EDUCATION & ANR. and other connected petitions

Citation: 2022 LiveLaw (Del) 797

The Delhi High Court today accepted an argument that a citizen cannot be deprived of the right to establish and administer an educational institution, unless the legislature in its wisdom decides to impose a reasonable restriction in general public interest on exercise of this fundamental right.

Justice Rekha Palli observed that any restriction on the exercise of the right under Article 19(1)(g) of the Constitution of India can only be by law and anything short of law would fall foul of the power under Article 19(6).

The Court thus agreed with the contention that the requirement under clause Article 19(6) can be met only by introduction of a statutory provision either in the Act or in the Regulation and not merely by the issuance of a circular or a policy decision taken by an authority, howsoever high.

7. Order Passed Under Section 143(1) Is Not An Assessment; Delhi High Court Dismisses Ernst And Young's Writ Petition

Case Title: Ernst and Young U.S. LLP versus Assistant Commissioner of Income Tax

Citation: 2022 LiveLaw (Del) 798

The Delhi High Court has ruled that the order passed under Section 143(1) of the Income Tax Act, 1961 is not an assessment for the purposes of Section 147 and hence, it is not necessary for the Assessing Officer to come across some fresh tangible material to form a belief that the income of the assessee has escaped assessment in order to reopen assessment.

The Bench of Justices Manmohan and Manmeet Pritam Singh Arora held that no opinion is formed by way of the order passed under Section 143(1), and that only an intimation is issued to the assessee when the return initially filed by it is processed; thus, the doctrine of change of opinion is not attracted.

8. WhatsApp's New Privacy Policy Shares Sensitive Data With Facebook, Forces Users Into Agreement By Providing Mirage Of Choice: Delhi HC

Case Title: Whatsapp LLC v. CCI, Facebook v. CCI

Citation: 2022 LiveLaw (Del) 799

"The 2021 Policy places its users in a "take-it-or-leave-it" situation, virtually forcing its users into agreement by providing a mirage of choice, and then sharing their sensitive data with Facebook Companies envisaged in the policy," the Delhi High Court has observed while upholding the proposed investigation of Competition Commission of India (CCI) into WhatsApp's privacy policy.

A division bench comprising of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad dismissed the appeals filed by WhatsApp and its parent company Meta (formerly Facebook) against a single bench order declining to interfere with CCI's investigation into the 2021 privacy policy.

Noting that WhatsApp occupies a dominant position in the relevant product market, the Court observed that there exists a strong "lock-in effect" which renders its users incapable of shifting to another platform "despite dissatisfaction with the product" which is exemplified by how, despite an increase in the downloads of other applications like Telegram and Signal when the 2021 Policy was announced, the number of users of WhatsApp remained unchanged.

Also Read: Delhi High Court Dismisses Appeals By Whatsapp, Meta Against CCI Investigation

9. Delhi High Court Grants Bail To Ragpicker Accused In Jahangirpuri Riots Case

Case Title: Jahid v. State

Citation: 2022 LiveLaw (Del) 800

In a first, the Delhi High Court has granted bail to one Jahid, a rag picker, arrested in connection with the clashes that broke out in city's Jahangirpuri area during a Hanuman Jayanti procession.

Jahid, an 18 to 19 year old man, was in custody since April 17, 2022.

Justice Yogesh Khanna was of the view that Jahid was not identified in any of the CCTV footages. The Court also observed that investigation against him was completed as chargesheet stood filed in the matter.

"Looking at his period of custody; the investigation being complete, and the petitioner being no more required for the purpose of investigation, is admitted to bail on his executing a personal bond of Rs.20,000/- with one surety of the like amount to the satisfaction of the learned Trial Court/Duty MM," the Court ordered.

10. Unilateral Constitution Of A Narrow Panel Of Arbitrators Violates Impartiality : Delhi High Court

Case Title: Overnite Express Ltd v. DMRC

Citation: 2022 LiveLaw (Del) 801

The High Court of Delhi has held that the power conferred on one party to unilaterally choose names from a panel of arbitrators and forwarding it to the other party to select its arbitrator from those names is violative of principle of impartiality in arbitration.

The Bench of Justice Neena Bansal Krishna held that such a unilateral exercise of power creates space for suspicion regardless of the merit of the selected arbitrators who happens to be retired District Judges.

The Court took a divergent view of its judgment in IWorld Business Solutions v. DMRC, wherein similar panel of five Members who were all retired District Judges was considered and it was held that considering that they were all retired Addl. District Judges/ District Judges, their impartiality and neutrality could not be questioned and the panel was held to be valid for nomination of any one as an Arbitrator.

11. 12th Board Result| CBSE's Caution Must While Taking Decisions Affecting Lakhs Of Students, Legitimate Expectation Doctrine Attracted: Delhi HC

Case Title: DEVASRI BALI v. CENTRAL BOARD OF SECONDRY EDUCATION & ANR

Citation: 2022 LiveLaw (Del) 802

The Delhi High Court has observed that a greater degree of care and caution, as well as due diligence is required on part of the functionaries and office bearers of Central Board of Secondary Education (CBSE) to ensure that due process is not violated at the higher echelons while taking decisions that affect the lives of lakhs of students.

Justice Chandra Dhari Singh added that while the Board's dedication and efforts to undertake continuous and comprehensive reforms and innovations in education is commendable, the responsibility vested and the trust reposed in the Board is also magnified.

The Court was dealing with a plea filed by a student aged 18 years who had appeared in the Class XII CBSE Board Examination for the Academic Session 2021-2022.

12. "Frivolous": Delhi High Court Dismisses PIL Against Withdrawal Of DTC Bus Service From Private Schools

Case Title: Baba Alexander v. Delhi Transport Corporation & Anr.

Citation: 2022 LiveLaw (Del) 803

Calling it a frivolous petition, the Delhi High Court has recently dismissed a public interest litigation seeking directions to the Delhi Transport Corporation (DTC) to reconsider its decision of withdrawing DTC bus services to private schools in the city.

A division bench headed by Chief Justice Satish Chandra Sharma added that it is always open to the DTC to review its decision as and when it feels that there are enough buses with it to be given to schools for the purpose of carrying children from their residences to schools and vice versa.

"Though this Court finds that the present petition is a frivolous petition, however, this Court is not inclined to impose costs on the Petitioner," the Bench also comprising of Justice Subramonium Prasad added.

13. Yardstick For Determining Infringement Of Trade Dress Is Overall Impression Of Design, Subtle Dissimilarities Irrelevant: Delhi High Court

Case Title: Diageo Brands BV & Anr. v. Great Galleon Ventures Ltd.

Citation: 2022 LiveLaw (Del) 804

The Delhi High Court has held that that yardstick for determining infringement of a registered design is 'visual effect' and 'ocular impression' of the product as a whole.

The test is not to look out for subtle dissimilarities, but rather, to see if there is substantial and overall similarity in the two designs.

" Impugned design need not be an exact replica to constitute infringement. Minor changes in size are insignificant as the overall and substantial similarity is glaring and undeniably apparent to the naked eye," a single bench of Justice Sanjeev Narula observed.

The observation was made while deciding a suit filed by Diageo Brands, manufacturer of famous whisky brand 'Black Dog' against another alcohol manufacturer Great Galleon Ventures.

14. Assessee Entitled To Refund Of Unutilized CENVAT Credit On Account Of Export Of Legal Services: Delhi High Court

Case Title: Commissioner of CGST Delhi East Versus Anand and Anand

Citation: 2022 LiveLaw (Del) 805

The Delhi High Court has held that the assessee is entitled to a refund of unutilized CENVAT credit under the CENVAT Credit Rules, 2004 on account of the export of legal services under rule 5 of the CENVAT Credit Rules, 2004.

The division bench of Justice Rajiv Shakdher and Justice Tara Vitasta Ganju observed that, as per Rule 5, as long as the service provider provides an output service which is exported without payment of service tax, such a service provider will be eligible for a refund of CENVAT credit.

The respondent/assessee is a firm of legal practitioners, which renders legal services to its clients both in India and outside India. The assessee specialises in rendering services in the field of intellectual property rights and, as per a finding of fact returned by the Tribunal, 75-80% of its receipts are from the export of legal services. The assessee has sought a refund of unutilized CENVAT credit on account of the export of legal services under Rule 5.