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service matter = The doctrine of waiver was also invoked in Vijendra Kumar Verma v. Public Service Commission, Uttarakhand and others (2011) 1 SCC 150 and it was held: “When the list of successful candidates in the written examination was published in such notification itself, it was also made clear that the knowledge of the candidates with regard to basic knowledge of computer operation would be tested at the time of interview for which knowledge of Microsoft Operating System and Microsoft Office operation would be essential. In the call letter also which was sent to the appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction.” having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents. We are also prima facie of the view that the learned Single Judge committed an error by holding that despite the non obstante clause contained in Rule 2 of the General Rules, the Special Rules would govern recruitment to the post of Physiotherapist. However, we do not consider it necessary to express any conclusive opinion on this issue and leave the question to be decided in an appropriate case. 26. In the result, the appeals are allowed, the impugned orders as also the one passed by the learned Single Judge are set aside and the writ petition filed by the private respondents is dismissed. Parties are left to bear their own costs.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 2802-2804 OF 2013 (Arising out of SLP(C) Nos. 30581-30583 of 2012) Ramesh Chandra Shah and others … Appellants versus Anil Joshi and others … Respondents J U D G M E N T G.S. SINGHVI, J. 1. Leave granted. 2. In … Continue reading

Customs Act,- “28. Notice for payment of duties, interest, etc. = whether duty on the supply and receipt of furnace oil and electricity respectively was required to be paid. The Development Commissioner, referring to a circular dated 12.10.1999 of the Ministry of Commerce, said as follows: – “They are procuring surplus power from their sister concern M/s. Uniworth Ltd. (Unit- 1, LOP dated 31.01.1989) under Permission No. 248(93) dated 01.11.1994 and the unit transferred 2590.30 KL of furnace oil to M/s. Uniworth Ltd. (Unit- 1) for their captive power consumption. No permission is required from this office for duty free import/ procurement of POL products for captive power consumption. It is further to clarify as per the Exim Policy provision, one EOU may sell/ transfer surplus power to another EOU duty free in terms of Ministry of Commerce Letter No. 1/1/98-EP dated 12.10.1999 (sic)” [Emphasis supplied] The relevant portion of the Ministry of Commerce Letter No.1/98-EP is extracted below: “2. No duty is required to paid (sic) on sale of surplus power from an EOU/EPZ unit to another EOU/EPZ unit. Development Commissioner of EPZ concerned would be informed in writing for such supply and proper account of consumption of raw material would be maintained by the supplying unit for calculation of NFEP.” = Yet, the appellant received a show cause notice from the Commissioner of Customs, Raipur, demanding duty for the period during which the appellant imported furnace oil on behalf of Uniworth Ltd. = in order to attract the proviso to Section 11- A(1) it must be alleged in the show-cause notice that the duty of excise had not been levied or paid by reason of fraud, collusion or willful misstatement or suppression of fact on the part of the assessee or by reason of contravention of any of the provisions of the Act or of the Rules made thereunder with intent to evade payment of duties by such person or his agent. There is no such averment to be found in the show cause notice. There is no averment that the duty of excise had been intentionally evaded or that fraud or collusion had been practiced or that the assessee was guilty of wilful misstatement or suppression of fact. In the absence of any such averments in the show-cause notice it is difficult to understand how the Revenue could sustain the notice under the proviso to Section 11- A(1) of the Act.’ = the show cause notice must put the assessee to notice which of the various omissions or commissions stated in the proviso is committed to extend the period from six months to five years. That unless the assessee is put to notice the assessee would have no opportunity to meet the case of the Department. It was held: …There is considerable force in this contention. If the department proposes to invoke the proviso to Section 11-A(1) , the show-cause notice must put the assessee to notice which of the various commissions or omissions stated in the proviso is committed to extend the period from six months to 5 years. Unless the assessee is put to notice, the assessee would have no opportunity to meet the case of the department. The defaults enumerated in the proviso to the said sub-section are more than one and if the Excise Department places reliance on the proviso it must be specifically stated in the show-cause notice which is the allegation against the assessee falling within the four corners of the said proviso….” = the burden of proof of proving mala fide conduct under the proviso to Section 28 of the Act lies with the Revenue; that in furtherance of the same, no specific averments find a mention in the show cause notice which is a mandatory requirement for commencement of action under the said proviso; and that nothing on record displays a willful default on the part of the appellant, we hold that the extended period of limitation under the said provision could not be invoked against the appellant. 27. In view of the afore-going discussion, the appeal is allowed and the decisions of the authorities below are set aside, leaving the parties to bear their own costs.


But if the presence of the complainant on that date was quite unnecessary, then resorting to the step of axing down the complaint may not be proper exercise of power envisaged in the Section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.”= “256. Non-appearance or death of complainant. (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. ” Considering the above decision along with Section 256 Cr.P.C., it is a discretion of the Magistrate to adjourn the matter or dispose of the matter, the Magistrate has to exercise his discretion judicially. Since it is a matrimonial dispute and the complainant is residing away from her matrimonial home, the learned Magistrate has to give one more opportunity to put forth her case. But the discretion exercised by the learned Metropolitan Magistrate is not legally sustainable. But however, the matter is pending in the matrimonial Court (i.e.) Sub-Court Tambaram in respect of divorce petition filed by the husband under Section 13(1)(i)(a) of the Hindu Marriage Act. Considering the gravity of the complaint and relationship between both sides, I am of the view, the order passed by the learned XV Metropolitan Magistrate is liable to be set aside and hence, it is hereby set aside.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:25.06.2012 CORAM: THE HONOURABLE MS. JUSTICE R. MALA Criminal Appeal No.709 of 2010 K.Niranjani .. Appellant/Complainant v. 1.R.T.Dinesh 2.R.T.Giri 3.T.Amsa .. Respondents Prayer:Criminal appeal filed under Section 378 of Cr.P.C., against the judgment dated 19.10.2010, in M.P.No.5872 of 2010 in D.V.C.No.1 of 2010, on the file of … Continue reading

The visa card carried a personal accident cover, with risk coverage of Rs.4 lakhs.= even though the visa card was issued, however till declaration of assignment was not filled in, the deceased cannot be regarded as their customer. Therefore the question of payment of any amount does not arise. ? = it is clearly stated that the card issued only with personal accident benefit and he is entitled to the amount for an accident on road or in air travel. Therefore on reading the instruction under “Insurance benefit on you card” it cannot be said that the benefit commences only after filling of declaration of assignment. The evidence put before us do not show that such a condition was put forth by the opponent that the benefit under the card will not be available unless declaration cum undertaking was filled in.”

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI     REVISION PETITION NO. 1902 OF 2011 (Against the order dated 16.09.2010 in  Appeal No.1297/2006 of the State Commission, Gujarat)   Standard Chartered Bank 5th Floor, Sakar -3, Income Tax, Ashram Road Ahmedabad                                                                                                                                             ……….Petitioner   Versus Mr. Naran Bhai ShamjiBhai Bhandari R/o Tarwade, TA Distt. Amreli, Ahmedabad, Gujarat                                                                                                                                  …..Respondent     BEFORE HON’BLE MR. JUSTICE  J. M. MALIK,                               PRESIDING MEMBER HON’BLE MR. VINAY KUMAR, MEMBER … Continue reading

16. Power of Controller to make orders respecting division of application.– A person who has made an application for a patent under this Act may, at any time before the grant of the patent, if he so desires, or with a view to remedy the objection raised by the Controller on the ground that the claims of the complete specification relate to more than one invention, file a further application in respect of an invention disclosed in the provisional or complete specification already filed in respect of the first mentioned application. (2) The further application under sub-S. (1) shall be accompanied by a complete specification, but such complete specification shall not include any matter not in substance disclosed in the complete specification filed in pursuance of the first mentioned application. (3) The Controller may require such amendment of the complete specification filed in pursuance of either the original or the further application as may be necessary to ensure that neither of the said complete specifications includes a claim for any matter claimed in the other. Explanation.– For the purposes of this Act, the further application and the complete specification accompanying it shall be deemed to have been filed on the date on which the first mentioned application had been filed, and the further application shall be proceeded with as a substantive application and be examined when the request for examination is filed within the prescribed period.

INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex, Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai – 600 018   (CIRCUIT BENCH SITTING AT DELHI)   OA/18/2009/PT/DEL MONDAY  THIS, THE 29th DAY OF OCTOBER,  2012 HON’BLE SMT. JUSTICE PRABHA SRIDEVAN   —  CHAIRMAN HON’BLE SHRI D.P.S. PARMAR                            —  TECHNICAL MEMBER BAYER ANIMAL HEALTH GMBH                          —       Appellants D-51368,  LEVERKUSEN … Continue reading

The competent authority in the present case, issued a caste certificate dated 19.10.1989, after following due procedure, in favour of the appellant stating that he does in fact, belong to Bhil Tadvi (Scheduled Tribes). On the basis of the said certificate, the appellant was appointed as Senior Clerk in the Municipal Corporation of Aurangabad (hereinafter referred to as the, ‘Corporation’) on 6.2.1990, against the vacancy reserved for persons under the Scheduled Tribes category. = Section 114 Ill.(e) of the Evidence Act provided for the court to pronounce that the decision taken by the Scrutiny Committee has been done in regular course and the caste certificate has been issued after due verification. A very strong material/evidence is required to rebut the presumption = “We must now deal with the question of locus standi. A special leave petition ordinarily would not have been entertained at the instance of the appellant. Validity of appointment or otherwise on the basis of a caste certificate granted by a committee is ordinarily a matter between the employer and the employee. This Court, however, when a question is raised, can take cognizance of a matter of such grave importance suo motu. It may not treat the special leave petition as a public interest litigation, but, as a public law litigation. It is, in a proceeding of that nature, permissible for the court to make a detailed enquiry with regard to the broader aspects of the matter although it was initiated at the instance of a person having a private interest. A deeper scrutiny can be made so as to enable the court to find out as to whether a party to a lis is guilty of commission of fraud on the Constitution. If such an enquiry subserves the greater public interest and has a far- reaching effect on the society, in our opinion, this Court will not shirk its responsibilities from doing so.” = Affidavit – whether evidence within the meaning of Section 3 of the Evidence Act, 1872: It is a settled legal proposition that an affidavit is not evidence within the meaning of Section 3 of the Indian Evidence Act, 1872 (hereinafter referred to as the ‘Evidence Act’). Affidavits are therefore, not included within the purview of the definition of “evidence” as has been given in Section 3 of the Evidence Act, and the same can be used as “evidence” only if, for sufficient reasons, the Court passes an order under Order XIX of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’). Thus, the filing of an affidavit of one’s own statement, in one’s own favour, cannot be regarded as sufficient evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as regards a particular fact-situation. (Vide: Sudha Devi v. M.P. Narayanan & Ors., AIR 1988 SC 1381; and Range Forest Officer v. S.T. Hadimani, AIR 2002 SC 1147).

REPORTABLE IN THE SUPREMECOURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7728 OF 2012   Ayaaubkhan Noorkhan Pathan … Appellant Versus The State of Maharashtra & Ors. … Respondents     J U D G M E N T DR. B.S. CHAUHAN, J.:   1. This appeal has been preferred against the impugned judgment … Continue reading

Section 52 opposition: amendment to Notice of Opposition considered and allowed – ss 58, 44 and 60 considered – Applicant’s claim to ownership not displaced – Trade Mark not deceptively similar to Opponent’s trade mark – reputation of Opponent’s trade mark not shown – opposition not established. Costs awarded against the Opponent. = The Applicant has “[s]ince around March 2007…been a rice importer and trader in Australia”. He says that he “created” the Trade Mark in around February 2008 and that in around May that year he “began using [it] in partnership with Liberty Impex [Pty Ltd]”, a company that he and a Mr Mohammed Moten had incorporated on 20 May 2008, “in connection with rice and the supply of rice in Australia”. He says he had a verbal agreement with Mr Moten at the time to license the company to use the Trade Mark and that, “It was always understood by [the company and Mr Moten] that I was the sole owner of the Trade Mark and that neither [the company nor Mr Moten] had any rights in [it] other than those under licence from me”. – Section 60 of the Act is reproduced below: Trade mark similar to trade mark that has acquired a reputation in Australia 60. The registration of a trade mark in respect of particular goods or services may be opposed on the ground that: (a) another trade mark had, before the priority date for the registration of the first-mentioned trade mark in respect of those goods or services, acquired a reputation in Australia; and (b) because of the reputation of that other trade mark, the use of the first-mentioned trade mark would be likely to deceive or cause confusion.

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS Re: Opposition by Taj Food Sales Pty Ltd to registration of trade mark application 1313229 (30, 35) – GRAND TIGER Label – in the name of Gerson Rangel DELEGATE: Michael Kirov REPRESENTATION: Opponent: Carmen Champion of Counsel, instructed by Matthews Folbigg Lawyers Applicant: Matthew Hall, Legal Practitioner, … Continue reading

INTELLECTUAL PROPERTY – whether appellant’s copyright in building plan for project home infringed by respondents – where opportunity for access established – where striking similarities between copyright work and putative infringement – whether requirement of causal connection between copyright work and putative infringement satisfied – whether inference of copying should be drawn – whether onus of proof shifted to respondents – whether proven or admitted facts not explained justified drawing inference of copying – significance of expert evidence concerning similarities in project home designs – significance of appellant’s delay in commencing proceedings against respondents – whether refusal of primary judge to draw inference of copying open on the evidence – decision of primary judge open on the evidence and not shown to be wrong – appeal dismissed.

Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd [2012] FCAFC 4 (17 February 2012) Last Updated: 17 February 2012 FEDERAL COURT OF AUSTRALIA   Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd [2012] FCAFC 4   Citation: Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd [2012] FCAFC 4 Appeal … Continue reading

CRYSTAL”-Application for removal of the trade mark “CRYSTAL” registered under No.1213531 in Class 23 under the provisions of the Trade Marks Act, 1999 (‘Act’ in short= application has been filed on 11.07.2003 claiming user since 16.03.1998. The respondents have not filed their counter statement denying the applicants use nor have they filed any evidence of their user at least since 1998. The respondent’s trade mark is neither distinctive nor capable of being distinguished and therefore is in contravention of the provisions of Section 9 of the Act. The respondent has obtained registration in bad faith. The respondent has not used the trade mark and the mark therefore deserves to be removed for non-use.The main ground of the rectification petition is that the respondents have not used the trade mark after registration. The respondents are aware of the proceedings and had in fact filed their reply to the Miscellaneous Petition No.61 of 2010 for substituted service. The respondents probably are not using the trade mark and that could be the reason for them not filing their counter statement as well for their non appearance. 14. The applicant’s trade mark “CRYSTAL” has been on the register since 1991 for identical goods even before the respondent adopted and used the trade mark. We therefore think that the impugned trade mark is wrongly remaining on the register. 15. Accordingly, ORA/204/2007/TM/AMD is allowed with a direction to the Registrar of Trade Marks to remove the trade mark “CRYSTAL” registered under No.1213531 in Class 23 from the register of Trade Marks. There shall be no order as to costs.

INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018     (CIRCUIT SITTING AT AHMEDABAD)     ORA/204/2007/TM/AMD    MONDAY, THIS THE 25th DAY OF JUNE, 2012     Hon’ble Ms.S. Usha                                            …  Vice Chairman Hon’ble Shri V. Ravi                                           …  Technical Member                                                                                                                                                 Crystal Knitters 4/688, Nochipalayam … Continue reading

The INTEL trade mark has an undeniable reputation in respect of computer processors, and as stated previously is one which I consider extends at least as far as being in respect of information technology in general. This reputation in information technology lends itself to an association with the online nature of the Applicant’s financial services[6]. I consider that a significant number of Australian consumers would at the very least entertain a reasonable doubt[7] as to whether the Opponent had developed information technology products for use in the financial services industry and had associated its product with the Applicant in order to provide financial services. This is further supported by the Opponent’s evidence its technology is used in a wide range of industries. The Opponent’s evidence in respect of its financial services provided by way of ‘Intel Capital’, ‘Intel Solution Services’, and the ‘Financial Services Engineering Software and Solutions Group’ is not in itself determinative, in particular because there is little information regarding the provision of such services in Australia. However it does indicate that an assumption by the purchasing public in Australia that the Opponent provides financial services, or is associated with the provision of financial services, would not be entirely misplaced. I am satisfied that the potential user of the Applicant’s services would, at least, reasonably be caused to wonder whether use of the ‘bellintell’ trade mark indicated that the Opponent’s INTEL technology was used in the provision of those services. Therefore the Opponent has established a ground of opposition under the provisions of section 60. As the Opponent has established one of the grounds it is pressing, it is not necessary to consider the grounds pursuant to sections 43 and 44, although these grounds or any others in the Act may be relied upon in the event of an appeal from this decision. Decision and costs Section 55 of the Act relevantly provides: Decision Unless the proceedings are discontinued or dismissed, the Registrar must, at the end, decide: (a) to refuse to register the trade mark; or (b) to register the trade mark (with or without conditions or limitations) in respect of the goods and/or services then specified in the application; having regard to the extent (if any) to which any ground on which the application was opposed has been established. Note: For limitations see section 6. I find that the Opponent has met the onus upon it in terms of the ground of opposition under section 60. I refuse to register trade mark application 1315445. It is usual for costs to follow the event, and I see no reason to depart from the usual rule here. I award costs, in accordance with the official scale in Schedule 8 of the Trade Mark Regulations 1995, against the Applicant.

Intel Corporation v Third Party Platform Pty Ltd [2012] ATMO 57 (20 June 2012) Last Updated: 9 July 2012 TRADE MARKS ACT 1995 DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS   Re: Opposition by Intel Corporation to registration of trade mark application 1315445(36) – BELLINTELL – filed in the name of Third … Continue reading

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