BPCL’s appeal in arbitration dismissed
The Supreme Court last week dismissed the appeal of public sector oil company BPCL
against the judgment of the Bombay High Court, which had held that the arbitrator had jurisdiction to consider the counter-claim made by Go Airlines (India), relating to CENVAT credit. The HC had set aside the order passed by the arbitrator. The dispute arose over the Aviation Fuel Supply Agreement between the two parties, when BPCL
raised a claim for interest on delayed payments of the fuel supplied. The airlines did not accept any amount payable towards interest. The matter was referred for arbitration by a former Supreme Court judge. She rejected the counter-claim on CENVAT. The HC and the apex court held that rejection of the counter-claim at the threshold, on the ground that the arbitrator has no jurisdiction, would not be proper.
The arbitration will proceed and determine this among other issues.
Rushing to high courts discouraged
In cases where there is a remedy for a litigant under the Code of Civil Procedure and the forum is a civil court, they should not rush to the high court. The latter, on its part, should not entertain such petitions — not merely as a measure of self-imposed restriction but as a matter of discipline and prudence. The apex court observed this in its judgment on the Virudhunagar Hindu Dharma Sabai vs Tuticorin Educational Society case. In this peculiar case, election to the executive committee of a society led to innumerable petitions and appeals in a number of courts, including the Madras HC.
In order to cut short the litigation, the SC appointed a commissioner to conduct the election, according to the court’s guidelines.
IPAB requires emergency treatment: Delhi HC
The Delhi HC last week reiterated its concern over the non-functioning of the Intellectual Property Rights Appellate Board (IPAB), because of the government’s neglect. “The manner in which the IPAB has been functioning during the last 15 years shows that at every stage, there has been delay in appointments made to the IPAB — both of judicial members and technical members,” the HC lamented. It added: “Further, adequate infrastructure and autonomy is also not granted to the IPAB in order to make its functioning efficient and smooth.” These remarks came in an order in the Novartis AG vs Union of India case. The pharma company moved HC, alleging that its patent case was not moving because the working of the board had come to a standstill — given there was no chairman and only one technical member was available. There is no judicial member. Responding to the complaint, the court stated: “Under these circumstances, some emergency steps need to be taken by the government to ensure that the IPAB functions in an efficient and smooth manner, for the purpose it has been constituted.”
Signing order without hearing is unfair: HC
The Bombay HC has set aside an order of the National Anti-Profiteering Authority, constituted under the Goods and Services Tax Act, as one member of the panel did not attend the hearings but only signed the order later. The HC stated that it was in violation of the principle of natural justice. The case arose out of a complaint by a consumer, who alleged that McDonald’s had not passed on the benefit of a lower GST to consumers. The matter was heard by the chairman and two members, who passed an order. The fourth member merely signed the order without hearing the arguments. The firm challenged it before the HC. It stated in the judgment of Hardcastle Restaurants Ltd vs Union of India that as the three members had heard the firm and the fourth member only joined in for signing the order, “it has resulted in violation of the principles of natural justice and fairness, and is liable to be set aside”. The court rejected the argument of the authorities that signing of the order by the fourth member was “superfluous”, when the other three had signed it.
Travel agency restrained in trademark row
In a trademark case, the Delhi HC has passed a permanent injunction against a travel agency. In the order pertaining to the Make My Trip Ltd vs Make My Travel (India) Ltd case, the former complained that the opposite party was using similar names such as ‘Make My Travel’, the MMT logo, and domain name, among other things. The judgement observed that the adoption of the mark by Make My Travel was “without any cogent explanation, and prima facie appeared to be dishonest”. In case the latter was permitted to continue using the infringing marks, grave and serious prejudice was likely to be caused to Make My Trip. The court did not accept the rival’s submission that Make My Trip had acquiesced in the use of the infringing marks and had allowed it to continue its use of the marks. The court emphasised that in order to claim defence of acquiescence, there should be tacit or express assent by the trademark holder to another, and in a way encouraging the opposite party to continue with the business. That was not the case here.