TaxTMI 
TaxTMI 
2018 (11) TMI 1730
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..... Ironically and incidentally, this termination or this terminating point is the originating point of this entire lis. (b) PSR would go on to say that as a matter of good faith and goodwill gesture, he continued to attend the office of QDS company till 15.7.2017. It is PSR's allegation that QDS company compelled him to sign a job offer letter post aforesaid termination. QDS company would deny this allegation. It may not be necessary to delve further into these factual controversies in the light of the limited and narrow scope of the instant application. (c) It is PSR's case that QDS company sent mails / communications inter-alia alleging that PSR's termination had not been accepted as he was handling sensitive and valuable information relating to copyright and other intellectual properties owned by QDS company. (d) To be noted, copyright and intellectual property rights which are subject matter of this lis are inter-alia constituted by original prototype samples pertaining to either Fall 17 collection, other past season collections and hard copies of the colour print outs for Fall 17 collection, all pertaining to apparel (this shall hereinafte....
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....' and 'junior suit' respectively based on the dates of presentation / filing of the respective suits. (h) In the aforesaid scenario, QDS company has now taken out the instant application in the senior suit with a prayer for dismissal of the senior suit. To be noted, as per judges summons, this application has been filed under Section 151 of 'The Code of Civil Procedure, 1908' ('CPC' for brevity), but at the hearing, it is submitted that dismissal of the senior suit is being sought under proviso to Section 60 of CR Act. In other words, it is the case of QDS company in the instant application that junior suit has been filed with due diligence which in effect is commencement and prosecution of action qua suit copyright and therefore, by operation of proviso to Section 60 of CR Act, the senior suit deserves to be dismissed. According to QDS company, in the instant case, in the light of proviso to Section 60 of CR Act, on presentation and prosecution of junior suit, Section 60 of CR Act is not available for PSR. (i) This submission is resisted by PSR by saying that junior suit has been filed much later in time, senior suit includes a claim f....
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....ment must be instituted within reasonable time. The word 'due diligence' has also been interpreted to be a point in time by the Madras High Court in Mehta Unani Pharmacy & Co., Rajkot and another Vs. Amrutanjan Limited, Madras reported in 2002 (25) PTC 475. (f) Two learned Judges of the Madras High Court in two separate judgments have followed the ratio in Super Cassette Industries. (Polaris Financial Technology Limited Vs. Adobe Systems Incorporated in C.S.No.735 of 2013 and O.A.No.842/2013 and M/s.Zari Vs. M/s. Zari Silk India Pvt. Ltd. in C.S.No.665 of 2013 and O.A.No.744 of 2013). (g) Pendency of the senior suit will prejudice this defendant as laid down by the Supreme Court in Shipping Corporation of India Ltd Vs. Machado Brothers and Others reported in (2004) 11 SCC 168- ex debito justitiae. (h) Ratio in M/s.Purbanchal Cables and Conductors Private Limited Vs. Assam State Electricity Board reported in AIR 2012 SC 3167 has been referred to a Larger Bench owing to divergent views taken by two Judges of the Supreme Court in Shanti Conductors Private Limited Vs. Assam State Electricity Board reported in (2016) 15 SCC 13). Therefore, Purban....
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....es and Conductors Private Limited Vs. Assam State Electricity Board [AIR 2012 SC 3167] in a identical manner. Hence it does not matter that the judgment in Purbanchal Cables and Conductors Private Limited has been referred to a Larger Bench owing to divergence in Shanti Conductors Private Limited Vs. Assam State Electricity Board [(2016) 15 SCC 13]. All these judgments apply the principle of sub silentio by referring to Professor P.J. Fitzgerald, editor of Salmond on Jurisprudence, 12th edn. which explains the concept of sub silentio (at page 153) in the following words: "A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind." (vi) The legal maxim stare decisis is only applicable when the decision/judgment contains concrete reasons and interpretation, hence as a sequitur it will follow that judgments without reasons and interpretation of sub-issues are sub silentio and not binding under Article 141 of the Constitution of India (Municipal Corporation of Delhi Vs. Gurnam Kaur [AIR 1989 SC 38], State of U.P. Vs. ....
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....ngement of copyright is filed, defendant in such an action at law cannot thereafter take recourse to Section 60 of CR Act and file a case of groundless threat of legal proceedings. There can be no two ways about this. The aforesaid proviso to section 60 is clinching and clear in this regard. There can be no two ways about this. (c) However, the moot question is when an action of infringement of copyright is commenced against an entity / person after such entity / person files a case of groundless threat of legal proceedings, will such commencement of action for infringement of copyright render the groundless threat suit infructuous? In other words, when infringement suit is post groundless threat suit, will it render the prior groundless threat suit infructuous is the question. (d) This moot question was answered by Delhi High Court in Super Cassette Industries Ltd. Vs. Bathla Cassettes India (P) Ltd. reported in 50 (1993) DLT 7. In Super Cassette case, Delhi High Court answered this moot question by holding that once a suit is filed for infringement of the copyright by the person who has given the threat, the suit under Section 60 becomes infructuous as the secti....
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....cretion to allow the appeal being filed. Therefore, an order refusing special leave does not stand substituted in place of the order challenged. This means that the doctrine of merger does not operate and apply when Supreme Court refuses to grant leave. After saying so, Supreme Court has clearly referred to two kinds of orders refusing leave to appeal as mentioned supra. One is, speaking order and the other is non speaking order. Though the order is only the one not granting leave to appeal, it is nonetheless a statement of law contained in the order and therefore, it becomes a declaration of law by Supreme Court within the meaning of Article 141. Flowing from this is the position laid down by Supreme Court that such declaration of law by Supreme Court is binding not just the parties thereto, but all Courts, Tribunals or authorities in any proceedings subsequent thereto by way of judicial discipline as the Supreme Court is the Apex Court of the Country. (g) My understanding to Kunhayammed case flows from sub paragraphs (iv) and (v) of paragraph 44 as mentioned supra. I deem it appropriate to extract sub paragraphs (iv) and (v) of paragraph 44 of Kunhayammed case and the sa....
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.... regard to proviso to Section 60 of CR Act and impact on subsequent action for infringement of copyright of a prior suit for groundless threat. Therefore, though MAC Charles is pre leave, in my considered understanding it is a statement of law made by Supreme Court on proviso to Section 60 of CR Act and its impact on prior groundless threat suits when infringement action is instituted subsequent to / pending groundless threat suits. (j) To be noted, there is no dispute or disagreement before me that Super Cassette case of Delhi High Court reported in AIR 1994 Del 237 or the aforesaid MAC Charles order of Supreme Court in SLP(C) No.39994 of 2012 are not distinguishable on facts qua the case on hand. When they are not distinguishable on facts, the question is whether MAC Charles operates as binding precedent. In the light of the Kunhayammed case principle, MAC Charles certainly operates as binding precedent is my considerable view. (k) However, Mr.Anirudh Krishnan, learned counsel submitted that issues pertaining to damages, due diligence and whether the subsequent action for infringement is frivolous have not been examined in MAC Charles or for that matter, in Supe....
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....an authority on point B. Point B is said to pass sub silentio. For example, In Gerard v. Worth of Paris Ltd.[(1936) 2 All ER 905 (CA).] , the only point argued was on the question of priority of the claimant's debt, and, on this argument being heard, the Court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd.[(1941) 1 KB 675 : (1941) 2 All ER 11 (CA).] , the Court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by the counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed. Precedents ....
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....nt when the case law is otherwise not distinguishable either on facts or other aspects. This has been articulated in paragraph 9 of Suganthi Suresh Kumar Vs. Jagdeeshan reported in (2002) 2 SCC 420. Paragraph 9 of the said judgment authored by Hon'ble Mr.Justice K.T.Thomas reads as follows : "9. It is impermissible for the High Court to overrule the decision of the Apex Court on the ground that the Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India, it is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India. It was pointed out by this Court in Anil Kumar Neotia v. Union of India [(1988) 2 SCC 587 : AIR 1988 SC 1353] that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court. " (s) In State of Gujarat Vs. R.A.Mehta case reported in (2013) 3 SCC 1, Hon'ble Dr.Justice B.S.Chauhan writes in paragraph 61 as follows : "61. There can....
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....ce Rules. P.Bhaskaran does not help the plaintiff in the senior suit in the instant case for more than one reason. To mention few reasons, P.Bhaskaran is certainly not an authority for the principle that sub silentio is an exception to Article 141 of Constitution. Secondly, a careful perusal of P.Bhaskaran reveals that appellants therein have pressed into service 5 case laws and only 2 of them are Supreme Court case laws. Others are Madras High Court judgments. From paragraph 27 of P.Bhaskaran, it is not clear if the sub silentio reference is to the Supreme Court case laws. Another most important reason is, a careful reading of paragraph 27 of P.Bhaskaran reveals that case laws cited by appellants therein have been distinguished on facts and thereafter sub silentio qua Rule 35(aa) has been mentioned only as an additional feature, which is not the situation in the case on hand. (v) One more aspect of the matter qua P.Bhaskaran case is, in P.Bhaskaran case, one entire rule, namely Rule 35(aa) had not been brought to the notice of the Court in the case laws cited. That is not the obtaining position in the instant case. It is nobody's case before me that Section 60 of CR A....
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....s to be a declaration of law made by Supreme Court within the meaning of Article 141. 7 Parting observation : (Parting but pertinent - Scenario in England): (i) Before parting with this case, this Commercial Division deems it appropriate to look at a very interesting sequence of some judgments of Courts of Appeal and House of Lords in England. It all started with Broome Vs. Cassell Co. Ltd. {[1971] 2 QB 354}, in which the Court of Appeal was presided over by Lord Denning, Lords Justices Salmon and Phillimore. In this Cassell case, the question arose was whether the Court of Appeal has to follow a previous decision of the House of Lords in Rookes Vs. Barnard {[1964] AC 1129}. The issue pertains to circumstances in which exemplary damages could be awarded. Lord Denning writing for the Court of Appeal in Cassell case, held that Rookes Vs. Barnard rendered by House of Lords is per incuriam as two relevant judgments of House of Lords had been overlooked. Saying that Barnard case is per incuriam, Lord Denning held that it was not binding. To be noted, this Cassell judgment of Court of Appeal was a unanimous judgment made by all the three Judges. Cassell case was carried....
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....le, i.e., rule of House of Lords regarding currency of judgment should be changed. In other words, the view taken by Lord Denning presiding over the Court of Appeal in aforesaid Henning case was approved and they did say that it required a change or in other words, the United Railways principle required a change. Though the House of Lords concurred with the view taken by Lord Denning, it was held by House of Lords in no uncertain terms that such a change should be made by House of Lords themselves and not by the Court of Appeal. House of Lords held that cessante ratione principle had been wrongly applied. It was held that Courts of law which are bound by the rule of precedents are not free to disregard an established rule of law because it was conceived that another devising made by Court of Law in the hierarchy to be more reasonable. (v) Therefore, I have no hesitation in holding that if MAC Charles upholding Super Cassette principle of Delhi High Court is to be revisited and reexamined, the same should be done by Hon'ble Supreme Court and not by High Court. In the light of the narrowed down discussion and deliberations, it is deemed unnecessary to embark upon t....