Complaint Of Domestic Violence Can Be Filed Even After Divorce: Supreme Court

A woman can lodge a complaint under the domestic violence law against the excesses committed by her husband even after the dissolution of marriage, the Supreme Court has said.

The top court refused to interfere with the order of the Rajasthan High Court which held that the absence of subsisting domestic relationship in no manner prevents a court from granting relief to the aggrieved woman.

The high court had passed the order while adjudicating a matrimonial dispute.

A bench of justices Ranjan Gogoi, R Banumathi and Navin Sinha dismissed the appeal against the high court verdict, saying it was not inclined to interfere with the order in the facts of the case.

It was contented that husband-wife relationship often ends on an acrimonious note and if the provisions of the Act were allowed to be used retrospectively, then it would further increase the acrimony and rule out the possibility of any compromise.

He said that legislature's purposive interpretation has to be kept in mind while interpreting any provisions of the law.

The bench, however, refused to agree and declined to interfere with the high court order in the facts of the case.

The high court had held on October 30, 2013 that the subsistence of marriage or domestic relationship was not a condition precedent for an aggrieved person to invoke the protection orders and other reliefs under the provisions of the Act.

"If the aggrieved person had been in domestic relationship at any point of time even prior to coming into the force of the Act and was subjected to domestic violence, the person is entitled to invoke the remedial measures provided under the Act,

The high court had said cited an example saying that even after the dissolution of marriage between the parties, if an ex-husband attempts to commit an act of violence such as entering the place of employment of the divorced wife, trying to establish contact with her or causing violence to her dependents or other relatives, she is not precluded from seeking protection orders under the law.

If the divorced husband attempts to dispossess the woman from the shared household or property jointly owned, she can approach a court for appropriate relief.

https://www.ndtv.com/india-news/complaint-of-domestic-violence-cruelty-against-can-be-filed-even-after-divorce-says-supreme-court-1851293

SC stays verdict on pleas challenging validity of Aadhaar: Top 5 points

A five-judge constitution bench of the Supreme Court headed by Chief Justice of India (CJI) Dipak Misra on Thursday reserved its judgement on the Aadhaar matter. Several appeals were filed challenging the constitutional validity of Aadhaar. Supreme Court judge Justice D Y Chandrachud, while hearing the petitions challenging the Aadhaar scheme's constitutional validity, on Wednesday recalled a personal experience of how his mother, who was suffering from Alzheimer's disease, had faced difficulty in authentication to get her pension.

Justice Chandrachud is part of the five-judge Constitution Bench, headed by Chief Justice of India Dipak Misra, which is hearing a batch of petitions challenging the constitutional validity of the Aadhaar scheme and its enabling law of 2016.

A battery of lawyers including Attorney General K K Venugopal, who represented the Centre and senior advocates like Kapil Sibal, P Chidambaram, Rakesh Dwivedi, Shyam Divan, Arvind Datar, Rakesh Dwivedi had appeared for various parties.

The constitution bench also comprised Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan.

During the arguments spread over four months, the Centre had strongly defended its decision to seed Aadhaar numbers with mobile phones, telling the top court that it could have been hauled up for contempt if the verification of mobile users was not undertaken by it.

However, the court had said that the government had misinterpreted its order and used it as a "tool" to make Aadhaar mandatory for mobile users.

Former Karnataka High Court judge Justice K S Puttaswamy and other petitioners had challenged the constitutional validity of Aadhaar.

The court had also not agreed with the government's contention that the Aadhaar law was correctly termed as a Money Bill by the Lok Sabha Speaker as it dealt with "targeted delivery of subsidies" for which funds came from the Consolidated Fund of India.

On May 3, the Centre had strongly defended its decision to seed Aadhaar numbers with mobile phones, telling the top court that it could have been hauled up for contempt if the verification of mobile users was not undertaken by it. However, the court had said that the government had misinterpreted its order and used it as a "tool" to make Aadhaar mandatory for mobile users.

The petitioners had referred to the technical experts' views on the technical aspect of the Aadhaar architecture and said that real-time surveillance of citizens was possible.

Earlier, the court also did not agree with the government's contention that the Aadhaar lawwas correctly termed as a Money Bill by the Lok Sabha Speaker as it dealt with "targeted delivery of subsidies" for which funds come from the Consolidated Fund of India.

Here's what happened in court while the Aadhaar hearing was on:

1) SC reserves judgement on pleas challenging Aadhaar: The Supreme Court on Thursday reserved its verdict on a batch of petitions challenging the constitutional validity of Aadhaar and its enabling 2016 law.

A five-judge constitution bench headed by Chief Justice Dipak Misra directed all the parties concerned to file their written submissions to put forth their case.

The judgement was reserved after a marathon hearing which went on for 38 days spanning four months.

2) Justice Chandrachud's mother had to authenticate ID every month for her pension:Aadhaar authentication failures could create problems for those in need and some solution had to be found to address the issue, said the Bench, also comprising Justices A K Sikri, A M Khanwilkar, and Ashok Bhushan. Recalling his experience, Justice Chandrachud said "my mother, who was suffering from Alzheimer's disease was entitled to family pension being the wife of a former Chief Justice of India (late Justice Y V Chandrachud)".

"She had to give a thumb impression for authentication.

I recall, every month the bank manager or his representative would come home and affix her thumb print on certain documents and only then could she get the pension," Justice Chandrachud said. "So it (authentication) is a serious issue. It's not largesse. It is not charity... we have to find answers for these problems," he said, adding that there was a class of needy people who may not get the benefits due to authentication failures.

3) Senior advocate says 90-year-old woman who is unwell being threatened by bank over Aadhaar: The apex court judge was responding to the arguments of senior advocate Shyam Divan, appearing for former High Court judge Justice (Retd) K S Puttaswamy, who said a 90-year-old woman suffering from various ailments is being threatened that her bank account could be closed for non-authentication by Aadhaar.

Divan said that through that bank account, she was getting her pension and she uses that money for her treatment as she has no one else to look after her.

"There are numerous cases where the Aadhaar authentication failures of the elderly, people suffering from any disease or physical disability, leads to denial of benefits to those otherwise entitled to it," Diwan said.

He said in many villages, young people have now migrated to cities or nearby towns and only the elderly residing there were dependent on their pension or other grants. But due to Aadhaar authentication failure, they were not getting the benefits.

4) Senior advocate tries to poke holes in World Bank report praising Aadhaar: Divan sought to assail a World Bank report which had praised the Aadhaar project and which was relied upon by the government to bolster its case for the 12-digit unique identification number. He said the World Bank had partnered with a private entity for preparing the report titled 'Identification for Development'.

Divan claimed that the same private entity was also the company with which UIDAI had partnered to facilitate Aadhaar.

5) Advocate Divan says Aadhaar authentication should not be made compulsory for certain schemes: Divan told the apex court that there were 144 notifications issued by various ministries and departments of the government which covered 252 schemes. The senior lawyer concluded his rejoinder arguments saying that essential government schemes that apply to children or relate to citizen's rehabilitation, food, health, and nutrition should be excluded from the requirement of Aadhaar authentication.

http://www.business-standard.com/article/current-affairs/aadhaar-case-sc-judge-recounts-ailing-mother-s-pension-hurdles-top-points-118051000187_1.html

Delhi High Court Grants Damages Worth INR 10 Lakhs For Infringement Of The Mark Ferrero Rocher

Delhi High Court in the case Ferrero Spa & Nr vs M/S Ruchi International & Anr [CS(COMM) 76/2018] has ruled in favor of the Ferrero Spa (hereinafter referred to as the 'Plaintiffs'). A suit was filed for permanent injunction and related reliefs against the infringement of the Plaintiff's product and trade dress of FERRERO ROCHER chocolate. Defendant no. 1, who was an importer and marketer of chocolates under the brand name 'Golden Passion' settled the matter amicably outside Court, however, Defendant no. 2, manufacturer of the chocolates under the mark Golden Passion in China, did not appear before the Court, and an ex parte interim order was passed against him. Despite service of the same, Defendant no. 2 had not ceased the sale of the impugned product. The Court found in favor of the Plaintiff and imposed costs and damages worth INR 10 Lakhs (USD 14989 approx.).

Brief Background

In the above case, the Plaintiff is a part of the Ferrero Group, founded in 1946. Being ranked amongst the 4 biggest confectionary producers worldwide, it is the most reputable company in the world, according to the Reputation Institute Survey of 2009, as reported in the Economist and Forbes Magazines. However, the Plaintiffs conduct their business in India officially through Ferrero India Private Limited (hereinafter referred to as Plaintiff No. 2), incorporated in the year 2008.

During the pendency of the suit, there was a settlement reached between the Plaintiff and the Defendant No. 1, an importer and marketer of chocolates under the brand-name Golden Passion in India which are also look-alikes of Plaintiff's chocolates sold under the FERRERO ROCHER trademark. Vide the settlement, a compromise decree was passed vide order dated May 26, 2016. Whereas, none appeared on behalf of Defendant No. 2, which is the entity manufacturing and exporting chocolates under the brand Golden Passion to India, the suit proceeded being treated ex- parte against him.

Major Contentions by the Plaintiffs

1. The Plaintiff's mark FERRERO ROCHER has been declared as a well-known mark by the Delhi High Court vide order dated March 13, 2004 in CS (OS) 404/2012.
2. Further, the Plaintiff's contend that the label, shape and other characteristic features of the packaging of the Plaintiff's 'FERRERO ROCHER' chocolate specialties, which constitute its trade-dress are entitled to protection as being well-known marks as they satisfy the criteria mentioned in Section 11 (6) of the Trade Marks Act, 1999. The chocolate products sold by the Defendants and the packaging in which they are sold are identical to that of the packaging of the Plaintiff's FERRERO ROCHER chocolate specialties and the striking similarity between the Plaintiff's FERRERO ROCHER chocolates and those of the Defendant's has been enumerated in the plaint.
3. Such misuse by the Defendants of the identical and/or deceptively similar trademarks, trade dress creates a mistaken impression in the minds of consumers that:
   
   
   • the Defendants products/services emanate from the Plaintiff's themselves;
   • the Defendants are permitted and authorized users of the Plaintiff's trademark; and
   • there is a nexus between the Defendants and the Plaintiffs.
4. The Court vide order dated March 26, 2014, had restrained the Defendants from
   
   
   • manufacturing, selling, offering for sale, advertising, directly or indirectly, dealing in any manner with the impugned Golden Chocolate product or any other product leading to infringement of the Plaintiff's trademarks and trade-dress;
   • using the trade-dress, packaging, color combination, layout, get-up designed to imitate the Plaintiffs' FERRERO ROCHER trademark and trade-dress leading to dilution of the Plaintiff's trademark and trade-dress and unfair competition vis-avis the Plaintiff's business under the FERRERO ROCHER trademarks and tradedress.
5. Even though, an injunction order was passed against Defendant No.2, it is still continuing to sell its Golden Passion chocolates in India, as is evident from the documents. The Defendant No.2 is continuing to sell numerous products which are a look alike of the FERRERO ROCHER chocolates under the brand ROWANSA and as part of its Golden Series of chocolates.
6. The acts of the Defendants in adopting and using the identical/deceptively similar impugned mark and dress in respect of identical goods has caused and will continue to cause irreparable damage and loss to the Plaintiffs business. Further, the impugned mark which forms a part of their trading name, infringes the rights of the Plaintiffs under Section 29 (5) of the Act. The Defendant No.2 is rather dealing in the goods which are identical to the goods of the Plaintiffs.
7. It was initially submitted by the Plaintiffs that the Court must also grant punitive damages taking into account the mala fide conduct of the Defendants, which is clearly not proportional to the quantum of actual damages that the Plaintiff has proven through documentary evidence filed in the suit on the following factors, i.e., Defendant No.2 despite service, chose not to contest the present proceedings; and it has been in contempt of the injunction order dated May 09, .2014, and has been exporting infringing chocolates to India and making them available for sale through online websites.

Contentions by the Defendants

The Defendants did not file any written statement in the suit. They also failed to admit or deny the documents of the Plaintiffs, and thus the Court proceeded to decide the case ex parte.

Observations by the Court

The Plaintiff has suffered immense loss to goodwill and reputation and hence, is entitled to a grant of damages not only in terms of compensatory damages but also in the form of punitive damages.

Held

The Court held that since Defendant No.2 reclused itself from the proceedings, it cannot be permitted to enjoy the benefits of evasion or covert priorities as they have been selling the goods and continuing to infringe the Plaintiff's mark. The Court passed a permanent injunction in favour of the Plaintiff and awarded damages to the Defendant No.2. where a decree for a sum of INR 10 Lakhs (USD 14989 approx.) was passed against Defendant No.2, on account of infringing the registered marks, trade dress and violating the interim order. The Plaintiffs were also entitled to interest @ 10% per annum on the damages so awarded from the date of filing of the suit till the date of realization. Proportionate costs of the suit were also awarded to the Plaintiffs and against the Defendant No.2.

http://www.mondaq.com/india/x/696092/Trademark/Delhi+High+Court+Grants+Damages+Worth+INR+10+Lakhs+For+Infringement+Of+The+Mark+Ferrero+Rocher

Patanjali Granted Injunction in Trademark Infringement Case by Delhi High Court

Delhi High Court provided some relief to homegrown fast moving consumer goods company Patanjali by passing an injunction order against companies who were wrongfully using their trademark “Patanjali”.

Facts and Proceedings of the case

Patanjali Ayurved Limited the homegrown fast moving consumer goods company is owned by Yoga guru Ramdev. Patanjali was founded in January 2006 and is currently the fastest growing fast moving consumer goods company in India. Its turnover in the financial year 2016-2017 was estimated to be over rupees ten thousand crores. Patanjali creates more than 900 products and claims that they only use natural and Ayurvedic herbs. Baba Ramdev in an interview revealed that entire profit of Patanajli goes to charity. It filed a suit for trademark infringement against four firms and a trust. They contended that four companies and a trust are wrongfully using their registered trademark. Patanjali Ayurved limited through their advocates Simranjeet Singh, Rohan Ahuja and Sonali Dhir of Athena Legal wanted a permanent injunction against the infringers and further claimed that infringers were passing off their product as that of the company and engaging in unfair competition. The plaintiff in its suit also alleged that defendants were claiming to do so under a valid authorization of the trust named Maharishi Patanjali Vedic Foundation.

The decision of the Court

The Four firms namely Karamveer Ayurveda, Dr. Zee Biotech, Dhatri, and Diwai Gramodyog Sewa Sansthan have been prevented from manufacturing, selling or advertising and marketing goods or services bearing the mark or word Patanjali.

Single judge Bench of Delhi High Court comprising of Justice Rajiv Sahai Endlaw passed the injunction order and noted that Patanjali Ayurved has made out a prima facie case for grant of an ex-parte order in its favour restraining the four firms and the trust from infringing its trademark. Court also issued a notice to all the five defendants asking them to file their reply to the plea by 16 May which is also the next date of hearing.

Learning of the case

From this case, we learn that intellectual properties of foreign brands are well protected under the existing Intellectual Property Rights Law of India. Gone are the days when people used to wait for days together for a minor remedy. Courts in India are fully capable of granting quick remedies to the ones in need be it a big multinational or a small organization.

http://libertatemmagazine.com/from-the-courtroom/patanjali-granted-injunction-in-trademark-infringement-case-by-delhi-high-court/

SC stays NGT order on demolition of resorts in Kasauli

Supreme Court on Friday stayed the National Green Tribunal (NGT) order directing demolition of five resorts in Kasauli in Himachal Pradesh, which were either constructed or expanded without adequate approvals from authorities.

Although a bench of Justices R K Agrawal and Sanjay Kishan Kaul said the resort owners had to justify construction without approval from local authorities, but granted interim stay on the NGT order. 

The NGT had on May 30 directed Bird's View Resort, Chelsea Resorts, Hotel Pine View, Narayani Guest House and Nilgiri Hotel to demolish their "unauthorised structures". The tribunal had also directed the resorts to pay up for the environmental destruction caused by them. The Bird's View Hotel was directed to pay an environmental compensation of Rs 5 lakh while Chelsea Resorts, Hotel Pine View, Narayani Guest House were directed to pay Rs 7 lakh each. Nilgiri hotel was directed to pay Rs 10 lakh.

"We direct that the unauthorised and illegal construction raised in violation of the planning laws affecting environment, ecology and natural resources adversely, should be demolished in terms of the provisions of the NGT Act of 2010," the NGT had said.

The tribunal had passed the order on a plea filed by Society for Preservation of Kasauli and its Environs (SPOKE) alleging that Bird's View Hotel added a 3-storey structure adjoining the existing building without obtaining prior approval from Town & Country Planner (TCP) and Chelsea Resorts made four building blocks instead of two approved by the TCP.

It had alleged that Hotel Pine View constructed a 7-storey structure in two inter-connecting building blocks as against only three storey in one block that was approved. Narayani Guest House constructed a 6-storey building as against the approval of three storey, while Nilgiri Hotel constructed four extra storeys, it had contended before the tribunal.

Delhi High Court grants Injunction Against Excel Telesonic

Cloudtail India Pvt. Ltd, the joint venture of Amazon, has received an injunction from the Delhi High Court against telecom technology company Excel Telesonic. Excel Telesonic has been asked to stop using the alleged “deceptively similar name” – ‘Cloudtele.’

Cloudtail had taken the company to court last month and sought damages worth INR 1 Cr.

Cloudtail sought a “decree of permanent injunction restraining the defendant, its directors, officers, servants and agents and all others acting for and on their behalf from using, depicting, displaying in any manner whatsoever, the trademark trade name Cloudtele or any other deceptively similar trademark, as a part of their trading name company name.”

Mumbai-based Excel Telesonic was founded in 2010. It is a telecom service company that provides fibre network services for telecom operators in South Mumbai. The company counts Airtel and Idea as clients.

In the suit, Cloudtail mentioned that its brand is a ‘well-known mark,’ and the use of Cloudtele by Excel Telesonic amounted to an infringement of its registered trademark. The company also asked for either “destruction“ of the domain name ‘http:www.cloudtele.com’ or for a transfer to the ecommerce seller.

Last month, at the last hearing, lawyers for Cloudtele said that the company will stop using the name ‘Cloudtele’ within the next four months. They also said that the company would only retain the word ‘cloud’ but will either prefix or suffix it with any other word and not ‘tail’ or ‘tele.’

In another instance of trademark infringement, US-based Paypal legally opposed Paytm for registering a ‘deceptively similar’ trademark. The filing for trademark opposition states that “the impugned trade mark is deceptively and confusingly similar to the opponent’s earlier trade mark inasmuch as the applicant has slavishly adopted the two-tone blue colour scheme of the opponent in its entirety.” In March 2017, a designer in Bengaluru claimed image copyright infringement of a line art image of Vidhana Soudha by cab aggregator Ola for a citywide billboard campaign promoting Ola Auto.

Cloudtail India Pvt. Ltd is a joint venture between Amazon Asia and Infosys founder NR Narayana Murthy’s private investment fund Catamaran Ventures.

Permitted User Cannot Institute a Suit for Trademark Infringement, Suit Dismissed by Delhi High Court

The plaintiff/respondent no. 1, Exxon Mobile Corporation, is the registered proprietor of the trademark Exxon and does not have an office in India. Plaintiff no. 2, which is a wholly owned subsidiary of Plaintiff no. 1, has an office in Delhi. And is a permitted user of the mark.
A permitted user of the mark is a person who is connected with the goods or services to which the mark relates in the course of trade and is authorized in writing to use the mark.

The defendant is the registered proprietor of the trademark ‘Exon Engineering Corporation’ and has an office in Kolkata.

Relying on Section 134(2) of the Trademarks Act, 1999 (“the Act”), the plaintiff filed the suit in Delhi on the ground that plaintiff no. 2 has an office in Delhi. Since Section 134(2) of the Act empowers a plaintiff to institute a suit for trademark infringement at any place where its office is located, the plaintiffs contended that the Delhi High Court was vested with the jurisdiction to adjudicate upon the matter.

Before the single judge, the Arguments of the plaintiffs were twofold.

First, arguing that Section 52 of the Act empowers a registered user of a mark to institute a suit for infringement, the plaintiffs contended that there was no reason why a permitted user of the mark would not be similarly empowered to institute such a suit.

Second, relying on Section 48(2) of the Act, they contended that the use of a mark by a permitted user would be deemed to be use by the registered proprietor. This being the case, owing to the fact that the permitted user of the mark i.e. plaintiff no. 2 had an office in Delhi, its use of the mark would be deemed to be use of the mark by the first plaintiff in Delhi.

On the other hand, the defendant argued that it was carrying on business in Kolkata, so a court in Delhi would not have jurisdiction to adjudicate upon the matter. Further, in light of the fact that Section 53 of the Act imposes an express embargo on the institution of a suit by a permitted user, plaintiff no. 2 could not have instituted the suit. Finally, since plaintiff no. 1 did not have an office in Delhi, Section 134(2) could not come to its aid.

Ruling in favour of the plaintiffs, the single judge held that the explanation to Section 134(2) of the Act, which delineates the categories of persons who are empowered to institute a suit, must be construed in an inclusive and liberal fashion. This being the case, a permitted user would also fall within the four squares of the term ‘person’ and would, therefore, be empowered to press Section 134(2) into service.
Relying on the apex court’s holding in the case of Exphar SA versus Eupharma Labratories, which involved the interpretation of Section 62(2) of the Copyright Act, the single judge held that, in light of the fact that the person instituting the suit i.e. plaintiff no. 2 had an office in Delhi, the suit could go forward.
Finally, the single judge also accepted the plaintiff’s contention that plaintiff no. 1 would be deemed to use the mark in Delhi owing to its use by its wholly owned subsidiary.

The defendant-Appellant appealed before the Division Bench against this judgment, resulting in the judgment under consideration.

Decision of Court:

The Court commenced its analysis by noting that the single judge’s reliance on the Exphar case was inapposite in light of the fact that there is a critical difference in the principles governing the construction of the term ‘person instituting a suit’ in the Copyright Act and Trademark Act.
More specifically, the terms ‘permitted user’, ‘registered user’, and ‘proprietor of the registered trademark’ are unique to the Trademark Act and are significantly different from and cannot be treated as being on the same footing as an exclusive licensee under the Copyright Act.

Thereafter, on a perusal of the text of Section 53, the Court held that the Section clearly prohibits a permitted user from instituting a suit for infringement.

Noting the difference between a registered user and a permitted user, the Court held that Section 52(1) authorizes a registered user to institute a suit whereas there is no such enabling provision insofar as a permitted user is concerned.

Holding that the term ‘person’ in the explanation to Section 134(2) must be construed as being inclusive, the Court held that it would nonetheless not include a permitted user within its ambit. The opposite conclusion would clearly be contrary to the terms of the enactment, inasmuch as it would authorize the selfsame thing that Section 53 prohibits.

Since plaintiff no. 2 was not legally empowered to institute the suit, the Court next had to decide if it had jurisdiction to adjudicate upon a suit instituted by plaintiff no. 1.

In order to answer this question, the Court relied on its own judgment in the case of Ultra Home Construction versus Purushottam Kumar Chaubey as per which a court has the jurisdiction to adjudicate upon a matter under the special provisions found in Section 134 of the Act and Section 62 of the Copyright Act in 4 different circumstances. Ritvik has covered the ratio of this case here.

Since the plaintiff does not have a principal place of business in India and the cause of action did not arise in Delhi, the Court held that the factual matrix of this case would not fall within the ambit of any of the four circumstances set forth in Ultrahome.
On this basis, the Court reversed the single judge’s decision and rejected the plaint for lack of jurisdiction.

Supreme Court of India held that Only Wakf Tribunal Can Decide Whether A Property Is Wakf Or Not

When the main question involved in the suit is whether the suit land is a Wakf property or not, it can be decided only by the Wakf Tribunal, and not by the civil court, the Supreme Court has held in Rajasthan Wakf Board vs Devki Nandan Pathak.

A bench comprising Justice AM Sapre and Justice RK Agrawal also held that matters falling under Sections 51 and 52 of the Wakf Act are also required to be decided by the tribunal and not by the civil court. The court has now remanded the matter to the high court for deciding the revision afresh on merits.

In the instant case, the Wakf Tribunal, on a plea by Wakf Board, had granted permanent injunction in respect of the property in question and declared the sale deed executed in favour of the other party ‘null and void’. The high court set aside this order holding that the tribunal has no jurisdiction in the matter and on the ground that since no order was made by any authority under the said Act, the applicant before the Wakf Tribunal could not be said to be the person aggrieved also as contemplated in Section 83(2) of the said Act and hence the tribunal would have no jurisdiction to determine the issue involved in the suit.

Relying on an apex court judgment, the high court observed that in so far as the relief of cancellation of sale deed is concerned, it is to be tried by the civil court for the reason that it is not covered by Section 6 or 7 of the Wakf Act.

Supreme Court Limits CCI’s Penalty Powers: “Relevant Turnover” Upheld

upheld the principle of “relevant turnover” for determination of penalties in competition law contraventions; and settled a critical issue in India’s antitrust jurisprudence, which was heavily debated amongst all stakeholders for over five years.

Background

The above ruling arises out of a proceeding involving an alleged contravention of Section 3(3) of the Competition Act, 2002 (Competition Act) in the public procurement of Aluminium Phosphide (ALP) Tablets by the Food Corporation of India (FCI). The Competition Commission of India (CCI) found a violation of Section 3(3) of the Competition Act and imposed a penalty at the rate of 9% of the total turnover of the concerned ALP manufacturers – namely, Excel Corp Care Limited (Excel), United Phosphorus Limited (UPL) and Sandhya Organic Chemicals Private Limited (Sandhya).

The Competition Appellate Tribunal (COMPAT) in its final order upheld the CCI’s order as to the existence of the contravention under the Competition Act. However, it significantly reduced the penalties imposed by the CCI. COMPAT’s modification of penalties was based on the principle that the reference to the term “turnover” in Section 27(b)[1] of the Competition Act would, in the facts and circumstances of the case, mean “relevant turnover”, i.e. turnover derived from the sales of goods or services, which are found to be the subject of contravention.

COMPAT’s order was challenged by the CCI before the Supreme Court. CCI contended that the term “turnover” as used in the Competition Act must always be interpreted as “total turnover” of the enterprise in contravention. The CCI contended that the COMPAT had added words to the Competition Act by inserting the word “relevant” before the term “turnover”. ALP tablets manufacturers, led by Excel, on the other hand, opposed the same by contending that it was the interpretation extended by the CCI, which led to adding the word “total” or “entire” before the term “turnover”.

Key Findings

Ultimately, the Supreme Court held that the imposition of penalty adopting the criteria of “relevant turnover” will be “more in tune with ethos of the Act and the legal principles which surround matters pertaining to imposition of penalties.”

Role of Equity in Penalty Imposition

The Supreme Court held that accepting the CCI’s interpretation of the term “turnover” as “total turnover” in all situations would “bring about very inequitable results”. Relying on various judgments stating that interpretation that brings out inequitable or absurd results has to be eschewed, the Supreme Court held that the interpretation extended by CCI does not commend acceptance.

In this regard, the Supreme Court took note of illustrations demonstrating that imposition of penalty on the basis of “total turnover” in all cases would inequitably discriminate against enterprises committing the same contravention depending on the manner in which their product/business lines are structured.

Strict Interpretation  

The Supreme Court also justified its conclusion and found that the principle postulating strict interpretation of “penal” statutes would also support and supplement the consideration of “relevant turnover” rather than “total turnover”.

In light of the principle of strict interpretation (relying on a recent Constitution Bench decision in Abhiram Singh and Ors v C.D. Commachen (Dead) by L.Rs and Ors[2] ) the Supreme Court held that, “even if two interpretations are possible, the one that leans in favour of infringer has to be adopted” and that there was “no justification for including other products of an enterprise for the purpose of imposing penalty” when the agreement leading to contravention involves one product.

Proportionality and Purposive Interpretation

As regards the arguments of the CCI on the objective to discourage and stop anti-competitive practices, the Supreme Court held, “the penalty cannot be disproportionate and it should not lead to shocking results”. It was held that the aim of deterrence cannot be justified to give an interpretation that may lead to “the death of the entity” itself. The Supreme Court emphasised that the doctrine of proportionality, which is based on equality and rationality, is a “constitutionally protected right which can be traced to Article 14 as well as Article 21 of the Constitution”.

The Supreme Court noticed that the doctrine of purposive interpretation and doctrine of proportionality have certain overlaps. It held that the purpose of the Competition Act cannot be to “finish” certain enterprises. Relying on the South African judgment in Southern Pipelines, the Supreme Court repeated that “there is a legislative link between the damage caused and the profits which accrue from the cartel activity”. Accordingly, the purposive interpretation of the term “turnover”, the Supreme Court found, also favours consideration of “relevant turnover”.

The concurring judgment by Hon’ble Mr. Justice N.V. Ramana held that “proportionality needs to be imbibed into any penalty imposed under Section 27” of the Competition Act. Accordingly, it laid down step-wise methodology to be followed by the CCI in imposing penalties.

Step-wise Methodology for Penalty Imposition

Step 1: Determination of Relevant Turnover

“Relevant turnover” refers to the “entity’s turnover pertaining to products and services that have been affected by such contravention”. The Supreme Court has clarified that the above definition is not exhaustive.

Step 2: Determination of Appropriate Percentage of Penalty Based on Aggravating and Mitigating Circumstances  

The Supreme Court provided an illustrative list of factors to be considered when determining such percentage.

Final Step: The penalty imposed “should not be more than overall cap of 10% of the entity’s relevant turnover”.

Key Takeaways

The Supreme Court’s approach in this judgment indicates a healthy respect for foreign jurisprudence, which is tempered by the motivation to evolve indigenous jurisprudence based on, and appropriate to, the Indian constitutional and legal framework.

• The judgment lays the foundation for penalty imposition under the competition law regime in India, leading to greater certainty and transparency in penalty imposition. The same will benefit all stakeholders functioning within the framework of the Competition Act.
• This judgment, from the highest court of the land, is likely to be followed in all cases where the issue of “relevant turnover” is pending or raised either before the DG/CCI or at the Appellate Stage or even before the Supreme Court itself. 

Supreme Court of India's on Aadhar PAN Link

1.    The Hon’ble Supreme Court of India in its Landmark Judgement has upheld Section139AA of the Income Tax Act,1961 as constitutionally valid which required quoting of the Aadhaar number in  applying for  PAN as well as for filing  of income tax returns.

2.    The Hon’ble Court also held that the “Parliament was fully competent to enact Section 139AA of the Act and its authority to make this law was not diluted by the orders of this Court.” Therefore, no violation of the earlier Supreme Court orders were found in enacting the provision.

3.    The Hon’ble Court has also held that Section 139AA of the Act is not discriminatory nor it offends equality clause enshrined in Article 14 of the Constitution.

4.    Section 139AA is also not violative of Article 19(1)(g) of the Constitution in so far as it mandates giving of Aadhaar number for applying PAN and in the income tax returns and linking PAN  with Aadhaar number. 

5.    Section 139AA(1) of the Income Tax Act,1961 as introduced  by the Finance Act, 2017 provides for mandatory quoting of Aadhaar/Enrolment ID of Aadhaar application form, for filing of return of income and for making an application for allotment of PAN with effect from 1st July, 2017.

6.    Section 139AA(2) of the Income Tax Act,1961 provides that every person who has been allotted PAN as on the 1st day of July, 2017, and who is eligible to obtain Aadhaar, shall intimate his Aadhaar on or before a date to be notified by the Central Government. The proviso to section 139AA (2) provides that in case of non-intimation of Aadhaar, the PAN allotted to the person shall be deemed to be invalid from a date to be notified by the Central Government.

7.    The Hon’ble Supreme Court has upheld Section 139AA(1) which mandatorily requires quoting of Aadhaar for new PAN applications as well as for filing of returns.

8.    The Hon’ble Supreme Court has also upheld Section 139AA(2) which requires that the Aadhaar number must be intimated to the prescribed authority for the purpose of linking with PAN.

         9.    It is only the proviso to Section 139AA(2) where the Supreme Court has granted a partial stay for the time being pending resolution of the other cases before the larger bench of the Supreme Court. The Hon’ble  Supreme Court has unequivocally stated as follows:

      “125. Having said so, it becomes clear from the aforesaid discussion that those who are not PAN holders, while applying for PAN, they are required to give Aadhaar number.  This is the stipulation of sub-section (1) of Section 139AA, which we have already upheld.  At the same time, as far as existing PAN holders are concerned, since the impugned provisions are yet to be considered on the touchstone of Article 21 of the Constitution, including on the debate around Right to Privacy and human dignity, etc. as limbs of Article 21, we are of the opinion that till the aforesaid aspect of Article 21 is decided by the Constitution Bench a partial stay of the aforesaid proviso is necessary.  Those who have already enrolled themselves under Aadhaar scheme would comply with the requirement of sub-section (2) of Section 139AA of the Act.  Those who still want to enrol are free to do so.  However, those assessees who are not Aadhaar card holders and do not comply with the provision of Section 139(2), their PAN cards be not treated as invalid for the time being.  It is only to facilitate other transactions which are mentioned in Rule 114B of the Rules.  We are adopting this course of action for more than one reason.  We are saying so because of very severe consequences that entail in not adhering to the requirement of sub-section (2) of Section 139AA of the Act.  A person who is holder of PAN and if his PAN is invalidated, he is bound to suffer immensely in his day to day dealings, which situation should be avoided till the Constitution Bench authoritatively determines the argument of Article 21 of the Constitution.  Since we are adopting this course of action, in the interregnum, it would be permissible for the Parliament to consider as to whether there is a need to tone down the effect of the said proviso by limiting the consequences.”

10.  Finally the effect of the judgement is as following 

   (i)     From July 1, 2017 onwards, every person eligible to obtain Aadhaar must quote their Aadhaar number or their Aadhaar Enrolment ID number for filing of Income Tax Returns as well as for applications for PAN;

 (ii)  Everyone who has been allotted permanent account number as on the 1^st day of July, 2017, and who has Aadhaar number or  is eligible to obtain Aadhaar number, shall intimate his Aadhaar number to  income tax authorities for the purpose of linking PAN with Aadhaar;

 (iii) However, for non-compliance of the above point No.(ii), only a partial relief  by the Court has been given to those who do not have Aadhaar and who do not wish to obtain Aadhaar for the time being, that their PAN will not be cancelled  so  that other consequences under the Income Tax Act for failing to quote PAN may not arise.