• Whether education is a service within the Consumer Protection Act? – In an appeal filed by a Lucknow resident, the Apex Court granted leave in a Special Leave Petition which raised the issue whether education is a service within the Consumer Protection Act, 2019. The Appellant whose son had died due to drowning in the school's swimming pool had filed a consumer complaint in the State Commission alleging negligence and deficiency in service on part of the school authorities. The State Commission, and later the National Consumer Disputes Redressal Commission dismissed the complaint holding that 'educational institutions' do not fall within the ambit of the CP Act, 1986 and 'education' which includes co-curricular activities such as swimming, is not a "service" within the meaning of the aforesaid Act. The bench also noted that a similar issue is pending for consideration in another case titled Manu Solanki vs Vinayaka Mission University.1
  • SC upholds the retrospective application of RERA to real estate projects- taking into account the legislative intent manifested in Section 3 of the RERA, 2016, a bench comprising of Justices Uday Umesh Lalit, Ajay Rastogi and Aniruddha Bose upheld the retrospective application of the Real Estate (Regulation and Development) Act, 2016, to real estate projects which were ongoing at the commencement of the Act and in respect to which completion certificate has not been issued. However, it is to be noted that the RERA Act does not apply to projects which have been already completed or to which the completion certificate has been granted at the commencement of the Act.2
  • 2015 Amendment to Section 34 of the Arbitration and Conciliation Act 1996 will apply only to the applications filed after the date of the amendment- In an appeal against the Single Judge's and Division Bench's judgments of the Bombay High Court, the applicability of Section 34 of the Arbitration and Conciliation Act 1996 to foreign business disputes was questioned. The Appellant contended that the Award could not be challenged under Section 34 of the Act since the award should be scrutinised in a post-amendment scenario, and that both forums erred in applying the patent illegality test, which is only relevant in a pre-amendment scenario. However, the Court noted that the Section 34 proceedings began prior to October 23, 2015, when the Amendment took effect, and hence 2015 amendment will only apply to Section 34 applications filed after the amendment's effective date. Thus, the Court affirmed the Single Judge and Division Bench's judgement to the extend it interfered with the award.
  • Merely having an explicit clause will not be sufficient to make time the essence of the Contract– a division bench comprising of CJI NV Ramana and Justice Surya Kant upheld an order of the Arbitral Tribunal which held that merely having an explicit clause indicating time as the essence would not be a conclusive factor rather an overall reading of the terms of a contract must be undertaken. The Apex Court was hearing an appeal filed against the order of the Uttarakhand High Court which had set aside the arbitral award passed by the Tribunal in a petition filed under Section 34 of the Arbitration and Conciliation Act, 1996. The Court also noted that contracts containing provisions for extension of time or payment of penalty on default would render the clauses having time as essence of a contract, ineffective.
  • Interim relief to alcoholic beverage manufacturer for its product Breezer against allegedly infringing the mark 'FREEZ' – In a trademark infringement suit filed against Bahety Overseas Pvt Ltd, interim relief was granted to the plaintiff company Bacardi and Company Ltd., which is engaged in manufacturing of alcoholic beverage BREEZER, by restraining the defendant company from using the mark till the pendency of the suit. The court held that even though defendant's trademark is FREEZMIX, the suffix "mix" is in such small characters that it's barely noticeable at first glance. The Delhi High Court observed that the two marks were phonetically similar and that the Defendant had consciously attempted at adopting a trade dress so similar to that of the Plaintiff that it would lead an uninformed and unwary customer to justifiably presume an association between the two marks.
  • Proposed shareholder resolution must be legal under Section 100 of the Companies Act, 2013 to hold the EGM: In a suit filed by Zee Enterprises Limited, a public limited and listed company, the single Judge Bench of Justice G.S. Patel of the Bombay High Court, ruled that a shareholder resolution requisitioned under Section 100 of the Companies Act, 2013 must be legal so as to demand the Board of Directors hold an Extraordinary General Meeting. The suit sought an injunction against Invesco from acting in furtherance of a requisition notice because it is illegal, ultra vires, invalid, bad in law, and incapable of implementation. The Court cited Rose vs McGivern and Others [1998] 2 BCLC 593, where it was held that if an EGM called contains only the resolutions that will be ineffective if passed and something that cannot be implemented, then the Directors have the right to refuse to convene such a meeting. The Court rejected Invesco's argument that no injunction could be granted because the NCLT had already been seized of the matter under Section 98, and any injunction granted would effectively be against the NCLT.
  • Arbitral Tribunal cannot pass ex-parte orders without giving the parties an advance notice- In the arbitral proceedings between Godrej Properties Ltd. (Petitioner) and Goldbricks Infrastructure Pvt. Ltd. (Respondent), the Bombay High Court held that an arbitral tribunal cannot pass ex-parte orders on the mere filing of an Application under Section 17 of the Arbitration and Conciliation Act, 1996 without giving the parties an opportunity to be heard. The Respondent, in the present case, had filed the application requesting the Ld. Sole Arbitrator to fix an early date to hear the said Application. However, the Ld. Sole Arbitrator immediately on the next day, without even hearing the Respondent, much less the Petitioner, considered the Respondent's Application suo moto  and passed an ex-parte ad-interim order inter alia  directing the Petitioner to maintain status-quo  until the Respondent's Application is heard on merits. Being aggrieved by the said ex-parte ad-interim Order, the Petitioner filed an Appeal under Section 37 of the Act. The Court set aside the ex-parte order of the Tribunal, and further distinguished the powers of an arbitral tribunal to pass interim orders under the Act from those enjoyed by a Civil Court under the Code of Civil Procedure, 1908 (CPC).
  • Section 25F of the Industrial Disputes Act 1947 will apply to the retrenchment of an employee even if the appointment was irregular: A bench comprised of Justices Ajay Rastogi and Abhay S Oka has held that the standards stipulated in Section 25F of the Industrial Disputes Act 1947 for an employee's retrenchment apply even if the appointment was irregular. The appeal was filed by a group of non-teaching workers of a university whose services were de-regularised. The Labour Court had ruled that the employee's dismissal violated Section 25F of the ID Act, however the Kerala High Court reversed this order on the grounds that Section 25F did not apply to irregular appointments. According to Justice Rastogi's decision, the High Court's position was unsustainable in law and it is not available to Court to investigate the nature of the workman's employment and the manner in which he serviced the employer.
  • Google cannot absolve itself from the liability of ensuring that a keyword is not an infringement of trademark: An application was moved by DR Logistics before the Delhi High Court, seeking an interim ex-parte injunction against Google India, Google LLC and Just Dial, restraining them from using or permitting third parties to use the applicant's registered trademarks DRS LOGISTICS or AGARWAL PACKERS &MOVES either as a keyword or as a meta tag or as a trademark. While dealing with the application the question that arose before the Court was whether "providing a trademark of an owner as a keyword to a third party would amount to infringement of a trademark?" The Hon'ble Court observed that Google cannot absolve itself from the liability of ensuring that the keywords used are not an infringement of a trademark. Moreover, it was held that use of a trademark as keywords amounts to use as provided under the Trade Marks Act.
  • Interim Injunction to Britannia Against Oral Care Seller 'Good Day' In Trademark Infringement Suit- The Delhi High Court granted an ex-parte injunction in favour of Britannia in a case filed by the company alleging infringement of its 'Good Day' trademark. The defendant was restrained from selling (physically or on online platforms), manufacturing, advertising, and marketing goods bearing the 'Good Day' mark acknowledging it to be a well-known trademark of Britannia Industries Ltd. The judge added that the defendants, Good Day Oral Care and other related parties, were unable to convincingly demonstrate how the use of the mark would not amount to infringement of the trademark, the right over which is bestowed with Britannia.

Footnotes

1. https://www.livelaw.in/top-stories/education-service-consumer-protection-act-supreme-court-leave-184872#:~:text=v%20Vinayaka%20Mission%20University%20(2020,meaning%20of%20the%20Consumer%20Protection

2. https://www.livelaw.in/top-stories/supreme-court-upholds-application-of-rera-real-estate-projects-ongoing-at-acts-commencement-185419

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