Disparagement means, ‘criticizing someone in a wrong way’.1 The New
International Webster Comprehensive Dictionary defines ‘disparagement’ to mean, “To
speak of slightingly, undervalue, to bring discredit or dishonor upon, the act of deprecating,
derogation, a condition of low estimation or valuation, a reproach, disgrace, an unjust
classing or comparison with that which is of less worth”. Whether or not goods of a trader or
manufacturer are disparaged depends upon the facts and circumstances of each case. All that
the court needs to be conscious of is that, while disparagement may be direct, clear and
brazen, it may also be subtle, clever and covert. ‘What is the statement made by the rival
trader’ and ‘how it belittles, discredits or detracts the reputation of another’s property,
product or business’, is the ultimate object of judicial scrutiny in trademark disparagement
cases.2 Section 2 of the Lanham Act (15 U.S.C. 1052) provides that, no trademark should be
refused qua registration, unless it consists of or comprises of immoral, deceptive or
scandalous matter; or matter which disparages or falsely suggests a connection with persons,
institutions, beliefs, or national symbols, or brings them to contempt or disrepute. A vast
majority of matters in U.S. qua disparagement concern ‘scandalous matter’ vis-à-vis Section
2(a) of the Lanham Act.3 The U.S. Federal Trade Commission Act by virtue of Section 52
prohibits the dissemination of false advertisements. In U.K. for long the standard has been
that of ‘honest practices’ in industrial and commercial matters; the same finds mention in
Section 10(6) of the U.K. Trademarks Act, 1994. In India, standard has been that of ‘unfair
trade practice’, which find mention in Section 36A of the Monopolies & Restrictive Trade
Practices Act, 1969 and Section 2(1) (r) of the Consumer Protection Act, 1986.
Jurisprudence emanating from Section 238-A of the Insolvency & Bankruptcy Code, 2016: B.K. Educational Services (P) Ltd. V/s Parag Gupta & Associates (2018)
Section 238-A of the I&B Code, 2016 (hereinafter referred to as the ‘IBC’) was inserted by the Insolvency & Bankruptcy Code (Second Amendment) Act, 2018 with effect from 06.06.2018. Section 238-A of the IBC reads as under:
“238-A. Limitation- The provisions of the Limitation Act, 1963 (36 of 1963) shall, as far as may be, apply to the proceedings or appeals before the Adjudicating Authority, the National Company Law Appellate Tribunal, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal, as the case may be.”
The moot question that arose for adjudication in the matter of: B.K. Educational Services (P) Ltd. (Supra) was:
I. Whether the Limitation Act, 1963 will apply to applications that are made under Section 7 and/or Section 9 of the IBC on and from its commencement on 01.12.2016 till 06.06.2018?
II. Section 238-A of the IBC is prospective or retrospective in nature?
Section 33 of the A & C Act, 1996 is similar to Section 152 of the Code of Civil Procedure, 1908 as the latter provision also speaks of correction of judgments or decrees or orders on account of clerical or arithmetical mistakes or errors arising from accidental slip or omission. Section 33 of the A & C Act essentially is in two parts. One part speaks of and deals with what is known as an additional award on account of the arbitral tribunal omitting to deal with certain claims which have been made before it and which aspect is the subject matter of Section 33(4) of the A & C Act, 1996 with the related sub-sections being sub-sections (5) to (7) of Section 33 of the A & C Act, 1996.
Once there is an additional award, it is considered as a separate award, and there is no merger of the award already passed for some claims with the additional award. The later additional award is given by law a status of an ‘additional award’. When there is correction to the award, arithmetical or clerical, the original award passed merges in the corrected award and hence, the period of limitation necessarily and only starts by applying the doctrine of merger from the receiving of the corrected copy of the corrected/amended award.
This article is in the nature of a case study albeit the decision rendered by the Hon’ble Supreme Court of India in the matter of: Dinesh Singh Thakur v. Sonal Thakur**, whereby the Apex Court in a matter concerning matrimonial discord refused to exercise its power of granting anti-suit injunction to stay the proceedings initiated by the respondent-wife (hereinafter referred to as ‘W’) in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida (USA) for grant of divorce on the ground of irretrievable breakdown of marriage and other reliefs, despite the fact that the appellant-husband (hereinafter referred to as ‘H’) had already filed a petition being HMA No. 601/2016 under Sections 13 and 26 of the Hindu Marriage Act, 1955 in the Family Court (Gurgaon, India).Read More
Doctrine of Part Performance & Specific Performance of Contract: Agreement to Sell, Sale Deed and the Formality of Registration
It is a settled proposition of law that, an agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. It can also be by the vendor executing the document and delivering it to the purchaser who accepts it.
An agreement for sale and purchase simpliciter is a reciprocal arrangement imposing obligations and benefits on both parties and is enforceable at the instance of either. The interpretation of such a contract would be governed by the laws of contract relating to the performance of reciprocal promises. Where under an agreement an option to a vendor is reserved for repurchasing the property sold by him, the option is in the nature of a concession or privilege and it may be exercised on strict fulfillment of the conditions on the fulfillment of which it is made exercisable.
It is important to note that: (a) Execution of sale deed does not need any attesting witness like gift deed which requires at least two attesting witnesses at the time of its execution as per Section 123 of the Transfer of Property Act, 1882; and, (b) Section 68 of the Indian Evidence Act, 1872 which deals with examination of attesting witness to prove the execution of document, does not apply to sale deed which is governed by Section 54 of the Transfer of Property Act, 1882. Moreover, it is intrinsic to note the difference between ‘sale’ and ‘exchange’ of property. If a property is transferred in exchange for something other than money, such a transaction would be called an ‘exchange’; the difference between a sale and an exchange is that, in the former, the price is paid in money, while in the latter it is paid in goods, by way of barter.
Defamation means to take away or destroy the good fame or reputation; to speak evil of; to charge falsely or to asperse. According to Winfield, ‘defamation’ is the publication of statement which tends to lower a person in the estimation of right-thinking members of society generally or which tends to make them shun or avoid that person. It is “libel” if the statement be in permanent form and “slander” if it consists in significant words spoken or gestures. In the matter of: Parmiter V/s Coupland, 1840 (6) MLW 105, it was observed that, defamation means a publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule. Further, in the matter of: Myroft V/s Sleight, 1921 (37) TLR 646, it was observed that, a defamatory statement is a statement concerning any person which exposes him to hatred, ridicule or contempt or which causes him to be shunned or avoided or which has tendency to injure him in his office, profession or trade. In India, by virtue of report in the matter of: Manisha Koirala V/s Shashi Lal Nair & Ors, 2003 (2) BCR 136, following test was laid down in order to determine whether or not a particular statement is defamatory:
A. A statement concerning any person which exposes him to hatred, ridicule, or contempt, or which causes him to be shunned or avoided, or which has tendency to injure him in his office, profession or trade is defamatory;
B. A false statement about a man to his discredit is defamatory; and,
C. Words which tend to lower the plaintiff in the estimation of right-thinking members of society generally, are defamatory.
THE SPECIFIC RELIEF ACT, 1963
Matter in issue means fact in issue, that is, the ultimate fact or state of facts set forth in legal pleadings on which a verdict or finding is predicated as distinguished from the evidentiary facts offered to prove the ultimate fact or facts pleaded.
Mischief Rule of Interpretation of Statutes: The Mischief Rule of Interpretation of Statutes originated in the Heydon’s case (3 Co. Rep. 7a; 76 ER 637) in 1584. In this case it was held that for the sure and true interpretation of all statutes in general (be they penal or beneficial; restrictive or enlarging of the common law) four things are to be discerned and considered:
a. What was the common law before the making of the Act?
b. What was the mischief and defect for which the common law did not provide?
c. What remedy the Parliament had resolved and appointed to cure the disease of the Commonwealth?
d. The true reason of the remedy?
Part I: Introduction: Four decades back, Charles Winick in his work of acclaim, The Lively Commerce, stated that, in a theoretically good society, where sexual fulfillment ought to be possible as other kinds of personal satisfaction, no one would be a prostitute or a client.i Prostitution is often thought of as a threat to the marriage-family institution; law-makers are often afraid that, the delicate threads which binds the society together will be broken if people are free to engage in coitus
for pleasure; laws, it is stated, are often not enforced adequately because the police have too many other things to do; judges also know that incarceration will not rehabilitate a prostitute, nevertheless, laws exist to emphasize that prostitution is not a socially acceptable form of behavior.
A person is said to have become “insolvent” when he becomes incapable of recompensing his debts in the ordinary course of business, or he becomes incapable of disbursing his debts as they become due, whether or not, he has committed an act of insolvency.i However, a debtor who does certain acts,tending to defeat or delay his creditors, may be adjudged bankrupt, and so be made liable to the bankruptcy laws.Read More
The central theme of this prolegomenon is to
answer the following questions of relevance:
(i) What is ‘second instance’ arbitration?
(ii) Is ‘two-tier’ arbitration in consonance
with the brooding spirit of arbitration
mechanism that is to facilitate party
autonomy or is it in conflict with the
public policy of India?
(iii) Can parties to an arbitration
agreement confer upon themselves
‘right to appeal’ from the ‘arbitral
result’ delivered by one arbitrator to
another arbitrator acting as an
(iv) Is there any difference between
‘arbitration decision’ and ‘arbitral