The Trade Marks Act, 1999 [“the Act”] governs the registration of trademarks subject to various conditions enlisted in the provisions of the Act. This article discusses the rights of a prior user of a trade mark against a similar trade mark which is registered as per the provisions of the Act. Before addressing the issue,… Continue reading Rights of Prior User of Trade Mark | Trade Marks Act, 1999
Category: Law
Bar of Jurisdiction under Section 34 of SARFAESI Act
Almost every Special Legislation comes accompanied with a bar of jurisdiction, curtailing the powers of the Civil Courts to entertain the dispute which is determinable by the provisions of the Special Legislation. This article will examine the statutory bar of exclusive jurisdiction contained in Special Legislations with emphasis upon the bar envisaged in Section 34… Continue reading Bar of Jurisdiction under Section 34 of SARFAESI Act
Enforcement of Domestic Arbitral Award in India
Enforcement of a Domestic Arbitral Award is governed by Part 1 of the Arbitration and Conciliation Act, 1996 [“the Act”]. Section 2(2) of the Act clarifies that Part 1 will apply to cases in which the place of arbitration is in India. Section 36 of the Act stipulates that an Arbitral Award shall be enforced… Continue reading Enforcement of Domestic Arbitral Award in India
Blurred Line Between Public Law and Private Law
It is no longer res integra that even in contractual disputes between the State and a Private party, the State has to stand the test of Article 14 of the Constitution which enjoins the state to act in a manner which is fair, just, equitable and devoid of the vice of arbitrariness. The law on… Continue reading Blurred Line Between Public Law and Private Law
Independence and Impartiality of Arbitral Tribunal
The Arbitration and Conciliation Act, 1996 [“the Act”] provides a speedy resolution of disputes to the litigants with minimal judicial interference. These two fundamental features of the Act are reflected in Section 29A of the Act which inter alia enjoins the Arbitral Tribunal to pass the Arbitral Award in a time bound manner i.e. within… Continue reading Independence and Impartiality of Arbitral Tribunal
Validity of Registered Sale Deed despite Non-Payment of Consideration
It is a settled position of law that an Agreement to Sell with respect to an immovable property does not, of itself, transfer rights or ownership in the immovable property in favour of the transferee unless the sale deed is registered in terms of Section 17 of the Registration Act, 1908. Without registration, the Agreement… Continue reading Validity of Registered Sale Deed despite Non-Payment of Consideration
Effect of Moratorium on proceedings initiated by the Corporate Debtor
Section 14 of the Insolvency and Bankruptcy Code, 2016 [“the Code”] proscribes institution of suits or proceedings against the corporate debtor once the adjudicating authority i.e. the National Company Law Tribunal [“NCLT”] admits an application filed under Section 7,9 or 10 of the Code. The objective behind bringing the suit proceedings against the corporate debtor… Continue reading Effect of Moratorium on proceedings initiated by the Corporate Debtor
Judicial Review vis-à-vis Government Contracts/Tenders
Award of Tenders by the Government involves a tedious process undertaken by the Government in strict adherence with the terms/guidelines stipulated in the tender documents which the tenderers are required to strictly follow with no deviations in order to emerge as the successful bidder. More often than not, the unsuccessful bidders who get blacklisted by… Continue reading Judicial Review vis-à-vis Government Contracts/Tenders
Scope of Inherent Powers of NCLT/NCLAT vis-à-vis Section 12A of IBC
The Insolvency and Bankruptcy Code, 2016 [“IBC”] was enacted to bring the insolvency law in India under a single unified umbrella with the object of speeding up of the insolvency process in a time bound manner. Prior to the introduction of IBC, various other Acts, viz. Sick Industrial Companies (Special Provisions) Act, 1985; the Recovery… Continue reading Scope of Inherent Powers of NCLT/NCLAT vis-à-vis Section 12A of IBC
Anti-Suit Injunctions
An injunction is an order of court which may be in the nature of a preventive or a mandatory relief, directing the Defendant to either restrain from performing a certain act or compel the Defendant to perform a certain act so as to prevent an irreparable injury from being caused to the Plaintiff. In India,… Continue reading Anti-Suit Injunctions
Can Time Barred Debts be Revived?
In India, the Limitation period for recovery of money is three years as per the Limitation Act 1963 [“the Act”]. The date from which such period of limitation begins to operate differs from case-to-case basis. For example, Article 19 of the Act stipulates that the limitation period for money lent begins to operate from the… Continue reading Can Time Barred Debts be Revived?
Doctrine of Lis Pendens vis-à-vis Specific Performance
Section 52 of the Transfer of Property Act, 1882 [“the Act”] embodies the doctrine of Lis Pendens which states that during the pendency in any court of any suit in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to… Continue reading Doctrine of Lis Pendens vis-à-vis Specific Performance
Determination of date for conversion of arbitral award expressed in Foreign Currency into Indian Currency
In International Commercial Arbitration between an Indian and Foreign entity, when an arbitral award amount is rendered in foreign currency, the Award debtor, who belongs to a country of another origin, for example, India, is required to convert foreign currency into its domestic currency, in accordance with the prevailing foreign exchange rate, in order to… Continue reading Determination of date for conversion of arbitral award expressed in Foreign Currency into Indian Currency
Admissibility of Unregistered Sale Deed in a Suit for Specific Performance
It is a settled position of law that an agreement to sell, of itself, does not transfer ownership rights or confer title upon someone with respect to an immovable property. Section 54 of the Transfer of Property Act, 1882 very categorically stipulates that a contract for sale, does not, of itself, create any interest in… Continue reading Admissibility of Unregistered Sale Deed in a Suit for Specific Performance
Distinction between Section 11(5) & 11(6) of Arbitration Act
Section 11 of the Arbitration Act [“the Act”] confers power upon the High Court or the Supreme Court, as the case may be, to appoint arbitrator(s) on an application moved by the parties. Section 11(12)(a) & (b) clarifies that in cases pertaining to international arbitration, the arbitrator shall be appointed by the Supreme Court and… Continue reading Distinction between Section 11(5) & 11(6) of Arbitration Act
Validity of Automatic Vacation of Interim Stay Orders and Effect of an Interim Stay
An interim order of stay, staying the proceedings before the lower court between the parties, is passed by applying the following three tests, the onus of which is on the Petitioner to satisfy as to their existence in his case viz. A Prima Facie case, which necessitates that as per the material placed on record, the Petitioner… Continue reading Validity of Automatic Vacation of Interim Stay Orders and Effect of an Interim Stay
Compensation vis-à-vis Section 74 of Contract Act
Section 73 of the Indian Contract Act, 1872 [“the Act”] envisages the general principle of law that a party which has suffered losses in consequence of a breach of contract is entitled to receive compensation for losses incurred by it from the party which has committed the breach. Section 74, on the other hand is… Continue reading Compensation vis-à-vis Section 74 of Contract Act
Arbitrability of Excepted Matters | Arbitration
“Party Autonomy” under the Arbitration and Conciliation Act [“the Act”] is the brooding and guiding spirit in arbitration proceedings. The Act confers upon the parties the power to take decisions upon various key aspects of the reference to arbitration viz. the place of arbitration, the venue, applicable law, the dispute and the procedure. All of… Continue reading Arbitrability of Excepted Matters | Arbitration
Can Arbitral Awards be modified?
Section 34 of the Arbitration and Conciliation Act, 1996 [“the Act”] provides remedy to a party aggrieved by the Award passed by the Arbitrator, to seek a recourse to court for setting aside the Arbitral Award. However, the Award passed by the Arbitrator, under the scheme of the Act is sacrosanct and the courts, as… Continue reading Can Arbitral Awards be modified?
Enforceability of No Damage Clauses in the Contract
Section 73 of the Indian Contract Act, 1872 [“the Contract Act”] embodies the settled principle of law that a party is entitled to receive compensation from the party that has breached the contract on the account of which the innocent party has suffered losses. This position of law is a driving force for the parties… Continue reading Enforceability of No Damage Clauses in the Contract