Monday, June 11, 2018

NGT orders closure of 8 industrial units in Uttarakhand's Sitarganj industrial area

 The National Green Tribunal has ordered closure of eight industrial units in Uttarakhand's Sitarganj area after the Central Pollution Control Board found them violating pollution norms.
A bench headed by Justice Raghuvendra S Rathore asked the authorities to shut down Gujarat Ambuja Exports Limited, Fleetguard Filters Pvt Ltd, Speciality Industrial Polymers & Coatings Pvt Ltd, Henken Chembond Surface Ace Tech Ltd, Western Consolidated Pvt Ltd, Balaji Action Buildwell Pvt Ltd, Reckitt and Benkiser Unit 1, and Reckitt and Benkiser Unit 2.
"We order that all these industries shall be shut down immediately. The Collector, Uddam Singh Nagar and Superintendent of Police as well as Member Secretary state pollution control board shall ensure that all these industries are shut down forthwith," the bench said.
The tribunal also directed the CPCB to submit a report with respect to the remaining industries which they have already inspected and submit the analysis report by June 18.
It had earlier directed the CPCB to inspect and take samples from industries located in the vicinity of Uttarakhand village of Siddh Garbyang so that the polluting units can be shut.
The tribunal had earlier appointed senior advocate Raj Panjwani and advocate Meera Gopal to assist it on a complaint of the residents of the Uttarakhand village, alleging discharge of untreated chemical effluents in drains by industries located in the vicinity.
The villagers had contended that there was complete violation of environmental laws and pollution norms by a large number of industries at the SIDCUL industrial park, located in the vicinity of Siddh Garbyang.
Terming the situation as alarming, the bench had directed its registry to register the villagers' letter as a petition and asked the Uttarakhand state pollution control board to inspect the industrial units around the village.
The NGT had issued notices to the Uttarakhand government, District Magistrate of Udham Singh Nagar, state pollution control board, and Managing Director of SIDCUL, and sought their responses.
The state pollution board was directed to identify the industries which were discharging untreated effluent and causing air and ground water pollution. It had also been asked to inform the tribunal on whether the industries were complying with the conditions of environment clearance.
The complainants had said the industrial units were spewing black soot which deposited black dust on the village houses, especially in the morning and evening hours due to which it was difficult for the residents to sit outside their houses or do any work.
"During rainy season, the effluent spread over the agriculture fields and even the tube wells of the village are having coloured water which is not fit for human or animal consumption,"

Sunday, June 10, 2018

NCLT admits SBI’s plea against Videocon Telecommunications

The National Company Law Tribunal (NCLT) has admitted the insolvency petition filed by State Bank of India (SBI) against Videocon Telecommunications Ltd. This is the second firm promoted by Venugopal Dhoot to be admitted to the insolvency resolution process after the flagship company Videocon Industries.
On Friday, the division bench of NCLT Mumbai, presided over by B.S.V. Prakash Kumar and Ravikumar Duraisamy, admitted the petition by the country’s largest lender and also approved Anuj Jain as the interim resolution professional (IRP).
Animesh Bisht, counsel for the bank, argued that the company had defaulted in the payment of ₹234 crore to SBI and three of its associate banks (now merged with SBI). Of this, Videocon Telecommunications owes ₹193 crore to SBI alone in principal and interest.
A consortium of 18 banks has an exposure of ₹1,700 crore to Videocon Telecommunications, which defaulted on loans and bank guarantees in January 2018.
Zal Andhyarujina, counsel for Videocon Telecommunications, argued that the bank’s petition is defective, as it has not furnished the record of default by the company and that it should be dismissed on technical grounds. “The debt that is claimed by the bank is not the debt at all,” he said. “No notice was given to the company regarding the default and there was no crystallization of the dues by the bank.”
On Wednesday, NCLT admitted Videocon Industries’ case, also approving Jain as IRP. In February, Videocon had filed a writ petition in the Bombay high court asking for a stay on bankruptcy proceedings initiated by SBI in NCLT. It had moved the high court against the Reserve Bank of India’s decision not to extend the timeline as requested by SBI and the Joint Lenders’ Forum to rerate Videocon’s restructuring proposal following changes in cash flows after subsequent changes in the import duty policy.
As per Videocon’s FY17 annual report, it is liable to repay the liability of other group firms to the extent of ₹5,082 crore as of 31 March 2017. Its total debt was ₹19,506 crore as of March last year.

https://www.livemint.com/Companies/19avCLGjeDeidnyFL7IucO/NCLT-admits-SBIs-plea-against-Videocon-Telecommunications.html

Govt to launch fresh drive against shell companies

Over 225,000 companies and 7,000 limited liability partnerships (LLPs) face the threat of being struck off official records, with the government launching a fresh drive against companies defaulting on filing statutory returns.
The identified companies include entities with no economic activity, called defunct companies, as well as those used for financial irregularities, or shell companies.
A total of 225,910 companies and 7,191 LLPs have been identified for regulatory action due to non-filing of financial statements for the two years starting FY16, the corporate affairs ministry said in a statement. The fresh crackdown will be launched this financial year.
The identified entities will be given an opportunity to be heard and action will be taken after considering their response, said the statement.
In an earlier drive launched in the last financial year, the Registrar of Companies (RoCs) had struck off a total of 226,000 companies for having failed to file their financial statements or annual returns for a period of two or more successive financial years.
More than 300,000 directors were also disqualified for non-filing of annual returns by the companies for three years. Disqualified directors will not be in a position to sit on the boards of other companies.
About 14,000 companies got relief under the ‘condonation of delay scheme, 2018’ which was in force for four months from 1 January for regularization of returns.
The removal of the large number of defaulting entities from the records will clean up the system. However, only a small part of the entities struck off from records may have actually been involved in financial fraud.
A task force set up in 2017 to identify shell companies listed 16,537 entities as “confirmed shell companies”. It also listed 16,739 other entities having common directorships with the confirmed shell companies. The task force has also zeroed in on more than 80,000 suspected shell companies. The agencies use certain parameters to identify shell firms, including identifying persons of no means sitting on the board of directors and finding discrepancies between the volume of transactions done by a company and the profits reported.
Regulatory agencies will pursue cases against officers who are in default of statutory obligations even if the company is no longer in existence.
The crackdown highlights the importance of closing down a company as per law as many defaulting firms may actually be cases of entrepreneurs abandoning their venture and not bothering to close down the company as per law, which makes them defaulters for not filing returns in subsequent years. Also, many entrepreneurs open new companies just to hold their intellectual property rights such as trade marks but miss filing the annual returns as such companies have no operations.
“The government expects that its efforts to clean up the registry will create a transparent and compliant corporate ecosystem in India, promote the cause of ‘ease of doing business’ and enhance the trust of the public,” the official statement explained.
Pavan Kumar Vijay, founder of consulting firm Corporate Professionals, said that entities that are in default should be granted the opportunity to rectify the omissions through a simple procedure. This would ensure that struck off entities will not approach company law tribunals which are already overburdened, Vijay added.
The exercise of combing through records to find defaulters as well as those resorting to suspicious transactions has been a key part of the authorities’ strategy to identify instances of black money generation and money laundering.
According to industry observers, businesses often under-report their income or inflate expenses through bogus transactions involving companies that exist only on paper.
Over the last few years, successive governments have taken steps to curb tax evasion as well as funds that are moved out of the country coming back in the form of foreign direct investment. One key step in this regard is the renegotiation of India’s tax treaty with Mauritius.

Thursday, June 7, 2018

China vs China: Coolpad may take Xiaomi to court in India


Chinese smartphone maker Coolpad is open to moving Indian courts against IPO-bound rival Xiaomi over patent infringement, after the company filed seven such cases in China in two different courts since January this year.

Coolpad’s chief intellectual property officer told ET that Indian laws protected patent holders’ interest, which made the South Asian nation’s courts a strong option for litigation, citing the example of Ericsson suing Xiaomi in a local court which lead to an interim bar on sales of specific Xiaomi phones.

“India is one of the key markets, and India has the reputation for protecting intellectual property rights, has better laws and systems to protect patent holders.

As we saw in the Ericsson-Xiaomi case, we feel that India is a good ground for protecting patents,” Zhang said when asked whether the company would file a lawsuit here.

“Because our products are sold in India and we’re a company focused on protecting our IP assets, we will file a case in any country where we have a good chance to get good remedies,” she added.

Coolpad Group’s subsidiary, Yulong Computer Telecommunication Scientific, has filed six cases in Shenzen Intermediate People’s Court, Guangdong province, in January, and one in Nanjing Intermediate People’s Court, Jiangsu province, in May, against Xiaomi Telecom, Xiaomi Technology and Mi Home Business, citing patent infringement and has sought immediate bar on production and sale of certain mobile phone models.

Yulong claims that models including Xiaomi Mi Max 2, Xiaomi Note 3, Xiaomi Mi 5X, Xiaomi Redmi Note 4X and Mi Mix 2, use three patents on interface, applications, icon configuration and dual-SIM card and dual-stand-by technologies, which enable basic communication, display and interaction functions that belong to the company. The first hearings are expected in September.

Xiaomi, which has maintained its No 1 position in the Indian smartphone market since December 2017, said that it was aware of the motion filed by Coolpad’s subsidiary in China, but has sought that the patent rights be declared invalid.

“Xiaomi understands that the filing has yet to be accepted by the court. Xiaomi has requested the Patent Reexamination Board of SIPO to declare the invalidation of the three patent rights regarding the above-mentioned patent infringement law suit,” it said in response to ET’s queries.

With the strong growth in smartphone sales, India has become a battleground for lawsuits alleging patent infringement.


A key player in this field is Sweden’s Ericsson which has taken several mobile phone companies including Xiaomi, Micromax, Gionee and iBall to court seeking royalties for using its standard essential patents (SEPs) on 2G and 3G technologies, since 2015.


In the specific case of Xiaomi, the Swedish gear maker got an interim injunction against sale of models using Chinese chipmaker Mediatek’s chipsets in India, which forced Xiaomi to sell only those with chipsets from Qualcomm.


Xiaomi eventually entered into an agreement with the US-based chipmaker, but its lawsuit with Ericsson remains pending in the Delhi High Court.


But not all have been as successful. Indian brands like iBall and Micromax have settled with Ericsson, with Micromax taking a global patent license from Ericsson, under which it will pay royalties on every phone sold in India and overseas which uses 2G or 3G technology.

Supreme Court refuses to stay CLAT counselling process

THE SUPREME Court gave a go-ahead for counselling for students who have cleared the Common Law Entrance Admission Test (CLAT), 2018, for admissions to the country’s top law universities. A bench of Justices Adarsh Kumar Goel and Ashok Bhushan refused to stay the counselling but clarified that “any further steps in the matter would be subject to further orders” of the court. “We cannot stop it,” the bench said.
Meanwhile, the report of the Grievance Redressal Committee, set up by National University of Advanced Legal Studies (NUALS), Kochi, to look into complaints about technical glitches during the exam held on May 13, was placed before the court Wednesday.
The bench directed that copies of the same be supplied to the parties. “In the meanwhile, the registry may furnish copies of the report of the Grievance Redressal Committee, appointed vide order dated May 25, to the counsel appearing for the parties,” it said.
The court had directed formation of the committee after some students approached it complaining about glitches in the test held on May 13 causing loss of crucial time.

whether the NCLAT can dismiss a statutory appeal?

 On 18 May 2018, in M/s B Himmatlal Agrawal (Appellant) v Competition Commission of India (CCI) and Anr. [Civil Appeal No. 5029 of 2018], the Supreme Court of India (Supreme Court) distinguished the decision of the National Company Law Appellate Tribunal (NCLAT) while disposing of a statutory appeal under the Competition Act, 2002 (Competition Act).

The issue before the Supreme Court was whether the NCLAT can dismiss a statutory appeal for non-compliance of its interlocutory direction to deposit a portion of the penalty as a condition for grant of interim relief. In this instant case, the Supreme Court set aside part of the NCLAT's order and restored the appeal that had been dismissed by the NCLAT. 

Background

The CCI found the Appellant guilty of rigging the bids for tenders floated by Western Coalfields Limited and correspondingly imposed a penalty of INR 3,61,00,000, which was ordered to be deposited within 60 days (CCI Order). The Appellant filed an appeal before the NCLAT against the CCI Order, seeking inter alia a stay of the penalty deposit. In response, the NCLAT granted a stay against the CCI Order (NCLAT Stay Order), with a condition that the Appellant was to deposit a sum equal to 10% of the total penalty (Deposit). However, the Appellant was unable to execute the Deposit due to financial distress. Consequently, the NCLAT dismissed the appeal on the ground of non-compliance with the NCLAT Stay Order. Being aggrieved, the Appellant filed an appeal against the NCLAT's decision before the Supreme Court.

Decision of the Supreme Court

The Supreme Court recognised that the right to appeal is provided under Section 53B of the Competition Act and that the said provision does not require any pre-deposit of penalty for entertaining an appeal. The Supreme Court held that the right to appeal granted by a statute cannot be curtailed by imposing a condition of pre-deposit of penalty, which can result in the dismissal of the appeal, if such deposit is not satisfied.
The Supreme Court declared that non-compliance of the NCLAT Stay Order will not impact the substantive appeal. As the condition of deposit was attached to the NCLAT Stay Order, any non-compliance would result in the NCLAT Stay Order ceasing to operate, as the pre-condition is not fulfilled. However, the substantive appeal would have to be decided on merits after giving the involved parties an opportunity to be heard.
As a result, the Supreme Court set aside part of the NCLAT Stay Order and directed that the appeal be restored and decided on merits. The stay order remained vacated on ground of the non-compliance.

http://www.mondaq.com/india/x/707524/Antitrust+Competition/Supreme+Court+Clarifies+NCLATs+Powers+In+Appeal

Saturday, May 26, 2018

Intellectual Property Markets


Patents, trademarks, and copyrights are hardly new. Trademarks came first, in the 1200s in England. Patents were next, in the 1400s in Italy. Copyrights emerged in the early 1700s in England. For the United States, laws passed in the 1790s protected patents and copyrights. Trademark laws arrived in the 1870s following legislative activity throughout Europe. These are the three primary types of intellectual property (IP) that can be “registered” with governments for protection. Each are made public, and available statistics for all countries make it possible to track global activity.

Registered IP Boom: What is happening is not a surprise. There are several factors, besides globalization and competitiveness, that fuel the growth. First is the ability to monetize IP. IP used to be part of the price of a product. It still is, but it can also be sold or licensed or bartered in an increasingly liquid marketplace. Transactable IP, which began in the early 2000s, increased the size of the available market. Providers of software and services could now create many more capabilities than simply IP inventory management systems for companies.

Open innovation came of age a few years later, spurred by giants such as Procter & Gamble that set a goal to in-source 50% of their innovations from other companies. As the internet increasingly enabled global connectivity, big data and algorithmic analytics came of age. All the pieces were now in place to take a company’s IP portfolio and compare it to any company or set of global statistics.

Finally, coming full circle, this easily comparative global information spurred further growth as analysts warned companies about not keeping up with the Joneses. Geometric growth has been going on for the past five to seven years.

IP Networks: Another important growth driver are IP organizations that are not the actual governmental registration bodies. Western economic zones have assembled neighboring countries into consortiums and/or empowered agencies that oversee activities and influence country policies and legislation, such as Europe, Eurasia, the Arab States, and Africa. Asian countries appear to be taking a more solo approach.

On a larger scale, the World Intellectual Property Organization has become an increasingly important player. It was established in 1967 by the United Nations as a self-funding agency. It is located in Geneva, Switzerland, and represents 191 of 195 countries. WIPO, as it is known, is the global forum for IP services, policy, information, and cooperation. It is a great source of information on all registered IP. Get on their e-mail list and you will have your finger on the pulse.

Patents & Trademarks: There will always be regional, vertical, and other types of segment competitors, but a look at several WIPO’s global services likely portends the future of IP. WIPO offers three global registration platforms: for utility patents (PCT), design patents (Hague), and trademarks (Madrid). Users file a single “international application” directly with WIPO, which then handles the various country filings. This is a great assist for emergent countries and regions, and is also increasingly used by industrialized nations which already have plenty of infrastructure for registration and enforcement.

Copyrights: Copyrights are also increasingly being monetized. After the “free thinking” period when the internet boom began, the realization that content has value started to return. Giant companies and organizations around the globe now compete to gather and charge for access to their content. The list is long. Copyrights have a couple interesting twists. First is the ability to digitally identify every single publication, a systems capability that has been evolving since 1998.

Does it sound to you like the future of registered IP is headed to be a transactable commodity?

Friday, May 25, 2018

With IBC norms changed, Jaypee homebuyers to rerun case


Hopeful of getting a fair treatment after reclassification as financial creditors, the homebuyers of Jaypee Infratech are planning to approach the court to rerun the ongoing resolution process under the amended Insolvency and Bankruptcy Code (IBC).

The government on Wednesday approved changes in the IBC through an ordinance that gives homebuyers the status of financial creditors at par with banks in the insolvency resolution process. "Once the ordinance is promulgated upon getting President's assent, we will approach the National Company Law Tribunal (NCLT) to rerun the resolution process,".

Jaypee has failed to deliver 25,000 flats to the buyers citing lack of funds. The realtor had raised around Rs 12,000 crore from the buyers for its Wishtown housing project in Noida in the National Capital Region.

Rerunning the case would mean starting the process from the stage of invitation of fresh bids and reconstitution of the Committee of Creditors (CoC). So, even if the changes are prospective, it would not matter in this case, Rai said.

Currently, the resolution process is heavily tilted in favour of banks, whereas homebuyers have little say in it, homebuyers and lawyers feel.

Even as their contribution in most real estate projects is more than that of banks, homebuyers are unable to participate equitably, leave aside preferential treatment, rue lawyers and homebuyers.

Jaypee raised about Rs 12,000 crore from homebuyers in instalments and booking amount which was much higher than Rs 8,276 crore raised by it from the banks. However, homebuyers were offered only 30% as compared to banks which were offered 70% of the bid price of around Rs 10,000 crore earlier quoted by a company during the resolution process.

With better representation on the CoC, homebuyers hope to get this order reversed.

"This is likely to get reversed if the new bids are invited. Given that Rs 3,500 crore is required to complete the remaining 60% construction in the project, the homebuyers are likely to get 4-5% of the principal amount as delay compensation," Rai said.

However, even in this scenario, the homebuyers are looking at 20% haircut on an average instead of 42% expected earlier, experts point out.

Classification as financial creditors will allow homebuyers to have a greater say in the resolution process and protect their rights. Homebuyers will have voting rights and can now participate in the CoC meetings. Till now, they had no voting rights and were sitting outside the CoC.

A total of 66% members of the CoC can decide on a resolution process. This will allow homebuyers to insist the bidders to include delay compensation in the resolution plan.

However, "placing thousands of homebuyers on CoC could be tricky. Some of them may not come to vote, while others may have a different opinion,", one of Jaypee homebuyers.

Homebuyers will be treated at par with banks during the insolvency resolution process. However, if the resolution process fails and the company is forced into liquidation, homebuyers will be placed after the banks as realtor has given land assets as collateral.

http://www.dnaindia.com/business/report-with-ibc-norms-changed-jaypee-homebuyers-to-rerun-case-2618540

NCLAT admits banks’ petition over Jaypee Infratech land

The National Company Law Appellate Tribunal on Thursday admitted a petition filed by banks against the NCLT order which had directed Jaiprakash Associates to return nearly 760 acres of land to its subsidiary Jaypee Infratech.

A two-member bench headed by Chairman Justice S J Mukhopadhaya also issued notices to the resolution professional (RP) of the company over the petition filed by three lenders -- Axis Bank, Standard Chartered Bank and ICICI Bank. The bench fixed July 13 as the next date of hearing.

During the proceedings, the appellate tribunal observed that the adjudicating authority (NCLT) does not have jurisdiction to declare any instrument illegal.

NCLAT was hearing the appeal over the order of the Allahabad bench of the National Company Law Tribunal (NCLT), which had asked debt-ridden Jaiprakash Associates Ltd to return nearly 760 acres of land to its subsidiary Jaypee Infratech, declaring the transfer of the land as “fraudulent” and “undervalued”.

NCLT had directed JP Group’s flagship firm Jaiprakash Associates Ltd (JAL) to release and discharge interest created over the land to lenders including ICICI Bank.

The order had come on a petition filed by Jaypee Infratech’s resolution professional (RP) Anuj Jain in the NCLT seeking direction over transactions entered into by the company’s promoters creating mortgage on 858 acres of land to secure debt for JAL.

Thursday, May 24, 2018

CLAT 2018- SC Suggests To Form Nodal Agency To Examine The Grievances Of Candidates, Asks NUALS To Reply

The Supreme Court today asked Common Law Admission Test (CLAT) 2018 convenor Nuals Kochi to appoint an expert committee at the earliest to individually look into at least 251 CLAT 2018 candidates’ grievances with the conduct of the entrance exam this year.

Justices AM Khanwilkar and Navin Sinha heard senior advocate Salman Khurshid for CLAT 2018 candidate Disha Panchal and five other petitioners who had challenged the exam and asked for a stay on the results and for a fresh exam, on the ground that they suffered from precious time lost in answering the paper due to technical glitches in the conduct of the exam.

Senior advocate V Giri appeared for Nuals today and placed on record the computer “log reports” of the petitioners claiming that each of the six petitioners was compensated with extra time for the exact time lost on account of technical glitches.

Nuals also submitted that out of over 59,300 candidates who appeared for the CLAT 2018 LLB and LLM entrance exams, it has received 251 representations so far from aggrieved candidates claiming that they had suffered on account of errors and glitches in the exam, the petitioners’ counsel Anand Shankar Jha told us.

This leaves out possibly up to 2,120 other potentially aggrieved candidates, according to a Google form that had been opened up to responses by a free CLAT tutorial service.

Jha said that the court was of the prima facie view that there were indeed many glitches in the conduct of the exam and that Nuals should appoint a mechanism or constitute a committee to look into each individual grievance.

The judges asked Nuals to propose before the court tomorrow as to how soon it can constitute such a committee and what procedure the committee would follow to address candidates’ grievances.

The court also ordered a stay on the writ proceedings on before five other benches of various high courts by several CLAT 2018 candidates, i.e. before Rajasthan - Jodhpur and Jaipur, Punjab & Haryana, Madhya Pradesh and Delhi, making their outcome subject to the decision of the Supreme Court.

Additional solicitor general appeared for the ministry of human resource development (MHRD), which was also made a respondent in the case.

Jha said that the hearings in the matter will now proceed on a day to day basis and the next hearing is tomorrow.



https://www.legallyindia.com/pre-law-student/clatinsc-nuals-to-propose-mechanism-to-look-into-251-candidates-complaints-as-2000-other-unrepresentated-sc-stays-clat-2018-proceedings-in-all-hcs-20180524-9366

Supreme Court: No relief to LLB Student Short Of Attendance Due To Pregnancy.


The Supreme Court on Wednesday refused to grant attendance relaxation to a second-year student of the LL.B course of Faculty of Law, University of Delhi (DU) who had missed college due to her pregnancy.

The Petitioner, Ms. Ankita Meena had sought a direction to DU to permit her to appear in the IV semester LL.B Examination. She could not meet the requisite 70% attendance criteria, having missed almost 2 months of the semester due to her pregnancy.

The Supreme Court vacation bench of Justices A. M. Khanwilkar and Navin Sinha declined interim relief of being permitted to sit for her fourth semester examination scheduled at 2 PM on Wednesday.
The bench was hearing the SLP preferred by Ms. Meena against the May 15 judgment of the Delhi High Court, wherein the Single Judge had placed reliance on University of Delhi v. Vandana Katari and Sukriti Upadhyay v. University of Delhi, besides Rule 12 of the BCI Rules of Legal Education, in refusing to grant her attendance relaxation.

Dismissing the SLP, the bench on Wednesday noted, “even maternity leave was not applied for… the objective of stipulating rules is to secure a sense of discipline…we cannot direct at 1 PM that a candidate may be allowed to take the examination at 2 PM...”

The bench, however, granted liberty to the petitioner to approach the Division Bench of the Delhi High Court. At an earlier stage, the bench had signified its consent to an arrangement that may be effected in this behalf with the acquiescence of the Respondent University.

In her petition, Ms. Meena had claimed a contravention of Rule 2(9)(d) of Ordinance VII of Chapter III of Delhi University Act of 1922, of her Fundamental Rights under Articles 19(1)(g), 14 and 21, her DPSP under Article 42 and the State’s Fundamental Duty under Article 51(c) [in the light of India being a signatory to the Convention on the Elimination of All Forms of Discrimination against Women], besides the provisions of the Maternity Benefit Act.

She also referred to the landmark judgment in Air India v. Nargesh Meerza. The relevant extract of the said Rule 2(9)(d) reads as follows:

“In the case of a married woman student who is granted maternity leave, in calculating the total number of lectures delivered in the College or in the University, as the case may be, for her course of study in each academic year, the number of lectures in each subject delivered during the period of her maternity leave shall not be taken into account:”

The High Court had, however, noted that the position had been settled by a decision by the Division Bench of the Court in the case of University of Delhi & Anr. v. Vandana Kandari & Anr., wherein the Court had held that maternity leave cannot be put in a different compartment for the purposes of relaxation of attendance. The Court had further highlighted the fact that LL.B. is a “a special professional course where no relaxation can be granted contrary to the Bar Council of India Rules, which specifically governs the field.” It had then dismissed the Petition, observing, “In my considered view, once Rule 12 of Rules of Legal Education of the Bar Council of India prescribes a mandatory attendance of 70% in each semester of LLB, no reliance can be placed on Rule 2 (9) (d) of Ordinance VII of Chapter III of Delhi University, which is a general provision that does not deal with a professional course like LLB.”

Wednesday, May 23, 2018

Understanding Intellectual Property Rights


Anyone involved in software development today must have a keen understanding of the ins and outs of intellectual property rights, including copyright laws and patent development. But the area is so vast that it can be difficult to narrow down the most important points to start with.

Here we’ll outline five key areas that developers and others in the software industry should have a clear understanding of. This list may be especially useful for independent entrepreneurs who are focused on developing their own products or who are newcomers to the tech industry in general.

1. Trademarks
Trademarks protect your name, domain, images, and everything related to product design. You must register your trademark to ensure full and complete legal protection of your brand.

Quite simply, anyone who develops a piece of software should put in place the protection mechanisms that will solidly protect your brand name even before they go into the development process and especially before they partner with anyone else.

It’s important that software developers have a contemporary understanding of how trademarks work— not only to protect themselves but also to be aware of the rights and responsibilities of others that you may end up working with.

2. Open Source Agreements
One of the areas that can get particularly sticky when it comes to intellectual property is in the realm of purposefully shareable intellectual property like open source code. The main thing to know is that this type of software is actually copyrighted and developers are required to use it in accordance with specific licensing.

If a developer releases the finished work as open-source, there are different types of open source licenses, which the developer should be familiar with ahead of time. Depending on the license, there will be different permissions granted to the users of the software. However, developers that are creating software programs with the intention of having it end up as a part of an open source platform don’t need to abide by licensing rules.

3. Author Versus Owner
Ownership determination can be complex and especially in the case of open source software. However, in terms of employee-employer relationships, so long as someone is an employee, anything that they develop is not their own – the employer will always have the copyright, and this is the case no matter what role the developer plays in the development process.

If the developer is an independent contractor, they may be considered the owner unless there is a legally binding contract outlining other terms.

4. Trade Secrets
It may seem unethical to some who are focused on knowledge-sharing for the benefit of innovation to keep things a secret but sometimes it’s necessary since other forms of copyright will be both public and have certain limitations.

If a developer finds themselves with a highly original and valuable idea, it may be that they want to keep it a secret in order to maintain full control over the source code without risk of anyone copying it. A protection program will include confidentiality agreements, password protection and the like.

Trade secrets can be kept in perpetuity, but they do require that extensive steps be taken to ensure privacy – which of course gets more complicated depending on the size of a team.

5. Patents
A patent typically is in place for 20 years. Developers can get patents on software, but only if the invention is extremely original – in the software space this will pertain to the software itself (e.g., applications) and/or the algorithm incorporated in the design. Patents also require that you make the details of your invention public.

In Conclusion
All developers need to have a clear understanding of their rights in relation to any partnership employment scenario before they actually enter into a work agreement or even start developing their own unique product line.


https://www.lianapress.hk/releases/biotech/5-things-every-developer-must-know-about-intellectual-property-rights.html

Trademark Law - No confusion between words ‘Blacksmith’ and ‘Goldsmith’

Finding no case of infringement and passing off of mark ‘Blacksmith’ by mark ‘Goldsmith’, Delhi High Court has dismissed the suit for permanent injunction. It noted that dictionary meanings of words were different and they were unlikely to be remembered by breaking into two parts, i.e. Black and Smith or Gold and Smith.
The Court in the case of Jaideep Mohan v. Hub International Industries it was held that a consumer of the products of the plaintiff and the defendants was likely to remember the said products by the meaning thereof, i.e. of the composite word – ‘Blacksmith’ and ‘Goldsmith’, which translate in Hindi language to ‘Lohar’ and ‘Sunar’, respectively.
Distinguishing a number of judgments, it held that it was highly unlikely that a consumer of alcoholic beverage in Hindi speaking belt would get confused. Court in this regard also noted that there was no confusion on account of packaging or shape of bottle/container.
Dismissing the suit, the Court was of the opinion that the suit was not required to be put through the rigmarole of trial, when no case of infringement or passing off was found even at that stage.


Sunday, May 13, 2018

Jaypee Group Offers 2,000 Shares For Free To Each Homebuyer

Jaypee group has offered 2,000 equity shares of Jaypee Infratech Ltd. for free to each homebuyer as part of its Rs 10,000 crore proposal to revive the bankruptcy-hit real estate firm, sources said.
Earlier this week, Jaypee group promoter Manoj Gaur made an offer of over Rs 10,000 crore before the lenders of Jaypee Infratech to protect the interest of all stakeholders including financial creditors, homebuyers and minority shareholders.
Jaypee Infratech, a subsidiary of Jaypee group’s flagship firm Jaiprakash Associates, had in 2007 started development of about 32,000 flats in Noida, of which it has delivered 9,500. It has applied for occupancy certificates to hand over 4,500 flats more.
According to sources, Jaypee group in its fresh proposal has offered 2,000 shares each to every homebuyer on first registration. About 4.5 crore shares are estimated to be offered at nil consideration. That apart, the group proposed to bear 50 percent of stamp duty on behalf of the home buyers on first registration, they said adding the company plans to deliver all apartments in the next 42 months.
Jaypee Infratech will also pay penalty to homebuyers as per the agreement and India’s new real estate law RERA, sources said.
Jaiprakash Associates has already deposited Rs 750 crore with the Registry of the Supreme Court and the amount would be utilised for refund to home buyers.
Yesterday, lenders of Jaypee Infratech rejected a Rs 7,350 crore bid by Lakshadweep, the highest bidder for the company, as they found it inadequate. The decision was taken at a meeting of the committee of creditors that was called to decide on the bid received from Lakshadweep, whose offer was ranked higher than the one presented by Adani Group.
Last year, the National Company Law Tribunal had admitted the application by an IDBI Bank-led consortium, seeking resolution for Jaypee Infratech under the Insolvency and Bankruptcy Code.
The tribunal had appointed Anuj Jain as Interim Resolution Professional to manage the company’s business.
Later, Jain invited bids from investors interested in acquiring Jaypee Infratech and completing the stuck real estate projects in Noida and Greater Noida. 
Consequently, Lakshadweep emerged as a front runner to acquire Jaypee Infratech with Rs 7,350 crore bid.

NCLT suggests IBBI review insolvency code regulations


The National Company Law Tribunal (NCLT) has suggested to IBBI that there is a need to review the insolvency code regulations to ensure that they are not "misused or misinterpreted". 

It also said that the resolution professional (RP) should be competent and independent so that there are no interruptions in the process which lead to delays in disposal of insolvency cases. 

Besides, it has said the claims of operational creditors are neglected or ignored as the Committee of Creditors (CoC) has supremacy of the financial creditors (banks and financial institutions) who have control over the entire process. 


Nobody is taking care of operational creditors' claim, said the NCLT Kolkata Bench in its order passed last week on the Binani Cement.

"It is time to recognise their voice also in the committee of creditors," it said, suggesting changes to the Insolvency and Bankruptcy Board of India (IBBI). 

In the 60-page order, the tribunal has also raised concern about the functioning of RPs, saying it has been receiving several pleas from stakeholders on issues such as transparency, arbitrariness and delays in the process. 


"The adjudicating authority (NCLT) is facing too much interruption from various stakeholders. Till date we have never come across any frivolous application. All come with a genuine grievance. All challenge the independence of the resolution professional and lack of transparency, competency and arbitrariness in the matter of resolution process," said NCLT. 

While citing Binani Cement case, the tribunal said: "In the case in hand, 12 applicants came forward ...for not following the process mandated under the code by the resolution process. The arbitrary way of dealing with the cases has always led to interruptions and also caused delay in disposal of cases." 

According to NCLT, while there is a need for reforming the regulations of the insolvency code to ensure that it is not misused or misinterpreted, there can not be any question that independence and competency of RPs are essential for preserving the objective of the code in a transparent manner leaving no room for interruption from any corner. 

The NCLT Bench of Member-Judicial Madan B Gosavi and Jinan K R said: "Hopefully, we believe that IBBI take note of all the above observations and do the needful review of the code and regulation." 

Referring to the Binani Cement case, NCLT said here the RP is a CA by profession and he failed to take business decisions to run the corporate debtor on his own. He managed to run the company by appointing about 22 representatives, who are from his own partnership. 


A resolution professional, like the RP in a case of this nature, needs some basic training for handling the resolution independently, efficiently and tackle the multiple questions from different stakeholders, said NCLT order, passed on May 2. 

"Whenever a question arises, even if answerable by the RP independently or with advice from his advisors, he comes to adjudicating authority... He shifts that burden too to the adjudicating authority," the bench said. 

https://economictimes.indiatimes.com/news/economy/policy/nclt-suggests-ibbi-review-insolvency-code-regulations/articleshow/64052545.cms

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

Friday, May 11, 2018

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 was 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.
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 headed by Chief Justice 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: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 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 failures of the elderly, people suffering from any disease or physical disability, leads to 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 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 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