| Appeal asked to be moved to another court | |
| BS Reporter / New Delhi February 08, 2010, 0:20 IST | |
The Supreme Court (SC) has quashed the judgement of the Delhi high court and ruled that an appeal against the decision of the Controller of Designs and Patents, Kolkota, should be moved before the Calcutta high court, and not the Delhi high court. The judgement was delivered in a dispute between Godrej Sara Lee Ltd and Reckitt Benckiser Australia PTY Ltd over the design of certain insecticide sprays to kill cockroaches and mosquitoes.
Reckitt filed a suit against Godrej in the Delhi high court alleging infringement of its registered design. Godrej filed a statement the designs of Reckitt were liable to be cancelled under the Designs Act. Godrej also filed a petition for cancellation of designs standing in the name of Reckitt. The controller accepted the latter petition and cancelled three designs. Reckitt moved the Delhi high court. It held it has jurisdiction to hear the dispute. Godrej moved against the high court stand and the SC allowed its appeal.
Partner’s death is death of firm
When there are two partners, and one of them dies, the firm is automatically dissolved even if there is clause in the partnership deed that the firm will continue in existence. In the case, Mohd Laiquiddin vs Kamala Devi one party claimed that the partnership continued though one partner had died. The court rejected this contention explaining that the firm is deemed to have been dissolved despite the existence of the clause. Upholding the view of the Andhra Pradesh high court, the SC said partnership is not a matter of heritable status; it is purely one of contract under Section 4 of the Contract Act.
Will is only expression of wish, not arbitration agreement
A person who writes a will cannot provide that if there was a dispute among the successors, it should be resolved through arbitration. “It would be merely an expression of a wish by the testator that the dispute should be settled by arbitration and cannot be considered as an arbitration agreement among the legatees,” the SC stated in the case, Vijay Kumar Sharma vs Raghunandan Sharma. In this case, two sons of the testator sued each other over the will, one of them alleging it was a fake.
The executors filed an application under the Arbitration and Conciliation Act stating that in view of the arbitration clause in the will, it should be resolved by the arbitrator named in the will. The trial court dismissed the suits. On appeal, the Rajasthan high court appointed an arbitrator. This was appealed against in the SC. It set aside the high court order observing that “a unilateral declaration by a father that any future disputes among the sons should be settled by an arbitrator named by him, by no stretch of imagination, be considered as an arbitration agreement among his children.”
Revenue dept’s appeal dismissed
The SC last week dismissed the appeal of the revenue department in the case, Asst Commissioner of IT vs Hotel Blue Moon and others, and ruled that service of notice to the assessee is mandatory for framing block assessment under Chapter XIV-B of the Income Tax Act. Arguing in the appeal against the judgement of the Gauhati high court in a batch of cases, the government contended that Chapter XIV-B provided for a special procedure for search cases and was a complete code. Therefore, notice under Section 143(2) of the Act was not necessary. The court rejected this contention and accepted the argument of the firms that block assessments could not be made without issuing notice. For the determination of undisclosed income for a block period, no assessment could be made without notice, the judgement clarified.
‘One illegality cannot justify another’
“If an appointment is made illegally or irregularly, the same cannot be the basis of further appointment. An erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section of the public,” the SC observed while allowing the appeal, Union of India vs Kartick Chandra Mondal. In this case, some persons who were casual employees working in a government department between 1981 and 1983 were ordered to be re-engaged by the administrative tribunal.
The Calcutta high court upheld the order. The central government appealed to the Supreme Court arguing that they were not recruited through the employment exchange. The workers contended that several persons who had not come through the exchange were regularised.The SC stated that one illegality is not justification for another and it cannot be perpetuated.
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