SENSE OF LAW: Qualities for Young Advocate

An art can be specified as a talent, skill or ability. Advocacy is an art. Every successful lawyer is a good artist of advocacy. Some qualities are by birth and some can be acquired. In my life I lacked many good qualities which were a major setback in my profession. But I learned by my experience in the profession. I took all the good aspects from the profession and applied it.
Some good tips for a starter in the profession while practising in a Court of law are as follows:

Observe and Remove your fears

The first and foremost thing you needed as an advocate is to remove unwanted fears. As a human being you will fear things. You are first to court representing some matter and you don't know how to and the mannerisms. The quality to represent properly comes from observation and learning. Learn by observing other advocates and the mannerisms. The first and foremost thing you will notice in a court is the mannerisms. These are to be learned first. Then you can curb the fears to a great extent. It will be completely removed from your mind by experience. So be an observer.
Communicate properly:Language
Most of the Courts use English as thier language. Local language is also used. Whatever it may be, the command of language is very essential to represent something in court. The object behind language is to communicate. So do not bother what language you are using. Be sure how you communicate things. This communication should be clear and unambiguos.
Good voice and sound
Voice and sound are synonymous. A good sound will show your confidence level. It may happen that your sound level gets lower when you lack confidence. I do admit that most of you cannot fake it. So do observe things and get a great knowledge of law. If you are not sure of a thing, don't hesitate to ask someone you trust. When you ask them don't forget the questions "what", "why", "how", "when" "where" etc. This is a good method of gaining experience and your sound level will automatically rise. And do not forget to keep it medium and audible also. When making long submissions do not be monotonous. There is also a tendency to speed up the words. Keep it slow, steady and you won the race.

Raise questions

'Known is a drop and unknown is an ocean'. This rule you will get familiar with in the first days of practise in court. You should raise questions and formulate your own questions while hearing submissions and arguments. You can later come back and seek advice of seniors or fellow members and also seek help from law texts. Be keen to develop this habit as it will be a great bonus to the future development where you can easily formulate and answer and find out loopholes and solutions to complex situations in cases in your hand in the future.
Don't mess with the bench and bar
The bench and bar are two equal wings of law. But do not mess with anything in your professional life. A starter will find uneasiness by various factors. He will feel humiliated by various circumstance. Take your time and think. You can earn respect only by your knowledge and good mannerisms. You should be grounded. Show the bar and bench that you have the drive to learn things. Do not be oversmart. Be smart and tidy in your manners and submissions.
Learn things which must not be said
The first thing to learn is to get known with things which must not be said or raised during arguments and examinations. I learned it from experience and not by any books. Each time you argue a matter and examine witnesses, take down the matters and discuss it with seniors and other colleagues. Be clear with the provision of law on the aspect. Find similar cases and points of examination conducted by other experienced.
Be a good administrator
Apart from the general tips and experiences discussed above, it is always better to be a good administrator. You have to keep a disciplined time format for your profession. It does not matter under who you are working as a junior or how long you intend to work. The thing which matters is how you work as a junior.
So in concluding the life of an advocate is always of a student. Keep the drive to learn things and be a go-getter. Participate in competitions which are healthy to the profession and form a good caucus of advocate friends. Participate in online forums connected with law. You can even start a blog connected with law where you publish all the useful things which you came across in the profession. GOOD LUCK.

Source:">SENSE OF LAW: Qualities for Young Advocate
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How To Get Speedy Justice From Indian Civil Courts?

Civil Courts – delay:
Many complain that there is so much delay before traditional Civil Courts and I do strongly feel that the possible delay before the Civil Courts and the presumptions makes a person to compromise with his rights too even. It is presumed that the enormous work load before the Civil Courts and the complicated procedures and especially the procedure prescribed under Civil Procedure Code, 1908 is the root cause for the delay. Though it is some extent true, it is not fully correct. Everybody is aware of the Alternative Dispute Resolution Mechanism (ADR) and especially about the Arbitration Mechanism. Arbitrator is a person got appointed by the parties to the dispute pursuant to an agreement or clause in the agreement to decide their disputes. In case if there is no agreement between or among the parties to the Arbitration Agreement or the Agreement which contains an Arbitration Clause, then, the Court is empowered to appoint an Arbitrator under section 11 of the Arbitration and Conciliation Act, 1996. If a dispute is referred to an Arbitrator, he devotes substantial amount of time to decide the dispute and he need not follow the procedure prescribed under the Civil Procedure Code though is guided by the principles of natural justice. There is no appeal provided under the Arbitration and Conciliation Act, 1996. Given the relaxation in the procedure to be followed and the amount of time an Arbitrator can devote on a dispute, the dispute before an Arbitrator is supposed to be disposed of very soon or even within days unless there exist complicated facts and law. But, it is not happening and we have seen many Arbitration Cases where a dispute before an Arbitrator is prolonged for years and very similar to the delay before the traditional Civil Courts. As such, it is not totally true that the work load before the Civil Courts and the procedure to be followed under the Civil Procedure Code, 1908 is the main cause for the delay before the traditional Civil Courts. There are some other reasons too.
Public perception:
But, we can not remain silent without alleging something at the system. The standards are getting degraded in legal profession and as such we may have to see sub-standard judges and advocates and it tend to be there in every profession. But, the standards in the legal profession and its consequences are clearly evident to the general public. I have heard many litigants who express their dismay at the manner in which a case has been dealt with by the Court and I was not in a position to answer the litigant many times when they pose a logical and reasonable question.
Ways adopted to prolong a civil dispute before a Civil Court:
There are certain ways to delay a Civil Case before the traditional Civil Court. If one chooses to drag a civil case before the Traditional Civil Court, then, he keeps filing interim applications knowingfully that those are not maintainable. When an interim application is filed in a suit, then, the Court orders notice to the opposite party. The notice is to be served and the opposite party will take time naturally to file his counter in the matter. Then, there will be arguments in the Interim Application and a judgment finally. An appeal can be preferred against the order in the Interim Application if the order is apeallable and when the interim order is not appeallable, then, a Civil Revision Petition is filed either before the Competent Appellate Court or before the High Court under Article 227 of the Constitution of India. If the Appellate Court grants stay of the further proceedings of the suit pending disposal of the Appeal against the interim order, then, it consumes some time. Likewise, if one chooses to drag a civil suit before the Civil Court, then, it will go for years.
I have only given a simple example as to how a civil case can be prolonged before the Traditional Civil Courts. Even the courts are handicapped at times though they think for the speedy disposal of the matter. In many cases, discretion is given to the Court with the wording ‘may' and an application seeking an interim order can be entertained by the Court and may also be dismissed without ordering any notice. There are many such provisions. What normally litigants or the advocates representing a case do is that when there is no provision for filing an application, then, they invoke section 151 of the Civil Procedure Code, 1908 which confers inherent powers on the Civil Court. It is the discretion of the Civil Court as to whether to exercise its inherent power under section 151 when something is sought, or dismiss the same summarily as not maintainable.
Likewise, there are many complications in the procedure and practice before the traditional Civil Courts. We can not simply say that the law is obsolete and require reforms. It is true that we require some reforms in the process, but, we can not ignore other things as well. If only the Civil Procedure Code, 1908 is the delay in a civil suit before a traditional Civil Court, then, an Arbitration case before an Arbitrator should get disposed of soon. But, it is not happening in many cases.
How to get the speedy justice:
Now the question is, how to get the speedy justice before the traditional Civil Courts?
The straight answer is to engage a competent lawyer who has credentials and all the standards. It is not difficult for a litigant to find a competent lawyer, but, normally, competent lawyers charge more. Thus, the litigant often chooses a lawyer depending upon the fee he charges and it is also true that the fee should be affordable to the litigant. But, even when the litigant is in a position to engage a competent lawyer in view his position and stakes involved, in some cases, the litigant prefers an advocate who charges less and will not concentrate much on the standards of an Advocate. I am sure on onething that a litigant will definitely feel the consequence of not choosing a competent lawyer soon after filing the brief with the Court or in the course.
I have my personal opinion over the rules governing lawyers in charging fees or remuneration and I feel that those are obsolete and require reforms. We have a laudable concept that rendering legal service is a service and should not be seen as a business etc. Looking at the same yardstick, imparting a medial aid to a patient is also a service, but, look at the charges being levied by the doctors both directly and also indirectly. We need a conceptual change in this regard and that is a different issue altogether. Recently, I had the privilege of looking at the schedule of fees can be charged by the Chartered Accountants for rendering para-legal kind of services like drafting agreements and power of attorney etc. and I am shocked to look at the fees. There is so much difference between the fee allowed for the Chartered Accountants for drafting a Power of Attorney and fee allowed for the legal professional for rendering the same service. I just want to give an understanding and don't want to get the reader deviated.
My advice for getting a speedy justice from the Civil Courts is like:
(a)Engage a competent lawyer to the extent possible;
(b)Brief clearly to the lawyer and answer all his queries and don't impose everything;
(c) When something is drafted by an Advocate, to the extent possible go though the draft carefully as many will not look at the draft prepared by the advocates carefully;
(d)Follow-up the each hearing of the case with the office of your advocate and makes it makes the counsel to feel responsible;
(e)Listen to the advice of competent lawyer and provide the required details from time to time.
I have given the above small brief with my experience and the knowledge of law and it is just my opinion.

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What To Do If You Think Your Patent Has Been Infringed�|�� | What To Do If You Think Your Patent Has Been Infringed

What To Do If You Think Your Patent Has Been Infringed

By: Sheryl Sanchez

Patents provide an inventor the authority to stop others from using his or her invention for their own personal profit through unlawful means. They allow the inventor to sue a person or company for trying to make such illegal use of the product or the process. However, you should keep certain essential aspects in mind when going for a legal action to deal with such an infringement.

Firstly, you should ensure that there has been a complete and perceptible infringement of your product protected by patent. This is to say that your product should have been copied in all its features including the apparently minor ones. In some rare cases even if not all these features have been copied by the violating party, the patent can still be treated as having been infringed. However, you will have to prove that the major aspects of the infringing product are same as the patented product in all elements and produce the same outcome as the patented product.

Secondly, you ought to have some kind of legal interest in the patent in order to bring prosecution against the offender. For filing such a suit, you need to be the patent owner or at least a partial or exclusive licensee of the patented product. Further, in order to make sure that your suit will get a court hearing, you need to file the suit within the allotted time under the limitation statute of your country.

You can take legal action against the maker as well as the user of the product that you consider to be an imitation of your product, but you can do so only within the time stipulated for validity of a patent according to the law. Once the span of patent has expired, no legal action can be taken against any infringement.

Last but not the least, though patents are based upon the strict liability principle, you must keep in mind that the use of a patent for conducting research is allowed and it is not considered as tantamount to infringement.

Discover more about trademarks and learn how does an patents protection increase the net worth of your business very fast. Get a totally unique version of this article from our article submission service

categories: IP lawyer,trademarks,patents,ideas protection,copyright,business idea protection,protecting business ideas,business value,Intellectual property

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India: ‘Deceptive Similarity’ - Most Concerned Problem In Trademarks

India: ‘Deceptive Similarity’ - Most Concerned Problem In Trademarks
18 May 2007
Article by Manisha Singh Nair

‘Deceptive similarity’ is one of the vital tribulations that is sought to be resolved by the Trademarks Act, 1999. As per section 2 (h) a mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion and mark as per section 2 (m) includes a device, brand, heading, label, ticket, name signature, word, letter, numerical, shape of goods, packaging or, combination of colors or any combination there of.

In Bombay Metal Works (P) Ltd v. Tara Singh & Ors 2006 (33) PTC (Bom.)(DB), is one such case where even after obtaining an injunction, the plaintiff is forced to make attempts to sustain the protection of marks.

Facts of the case

Tara Sing & Ors were restrained by an injunction order, from manufacturing, selling, offering for sale, advertising directly or indirectly dealing in cycle parts under the impugned Ball Head Racers and Screw Head Racers or any other packing which could be substantially similar to that of Bombay Metal Works Ltd.

Despite the said order, Tara Singh continued the manufacturing and selling of the goods there by violating the said order. Aggrieved by the non-compliance of the order, Bombay Metal Works filed a contempt application under section 2 (a), 11 and 12 of the Contempt of the Court Act. Surprisingly the Judge not only rejected the contempt application, but also gave a finding that the impugned packaging of Tara Singh cannot be considered as deceptively similar to the packing of the Bombay Metal Works. Aggrieved by the said order, Bombay Metal works preferred the appeal.


The main contention of the Tara Singh was that the appeal is not maintainable and that it shall lie to the High Court only if the contemnor has been punished and not in any other case. On the other hand, Bombay Metal Works contented that they have filed the appeal not as contempt appeal but as the First Appeal Order (FAO) and hence it is maintainable.


The Appeal court on perusal of earlier single bench orders found that the parties had virtually settled their dispute and Tara Singh had given an undertaking that they shall change the color scheme and out look of their packaging. The Appellate Court further opined that as Tara Singh had agreed to change the color scheme and design of the packing, there is a prima facie breach of an interim injunction order and hence Tara Singh & Ors are estopped from acting contrary to their undertaking. Holding the above line, the Court upheld the appeal.

This case underlines the difficulty of protecting the marks. The undertaking by the respondents in the case itself proves that they are accepting that their packing is deceptively similar to that of the appellants. One of the significant tactics primarily applied by new manufactures is to pass off their goods as that of another. The trademark holder needs to be alert of the infringements and the prospective infringements. Close monitoring of the developments has emerged as a key factor. Timely judicial intervention is another prime factor that has become inevitable to the protection of a trademark.

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Standard chartered bank

Standard chartered bank


Shri C.Y. Guruprasad
‘YOGA’ No.221, 6th Cross
Mysore Bank Colony
BSK 1st Stage
Bangalore – 560 050


Opposite Party:

India Card Centre
3rd and 4th Floor
Raheja Point
Magarath Road
Bangalore- 560 025



This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the Opposite party (Op in short) for the payment of penalty equivalent to one annual premium with interest, equal amount as damages with costs and for such other reliefs.

The brief facts of the case are that the complainant a senior Citizen holding a Credit Card of the Standard Chartered Bank bearing No.4129-0586-9005-8520 for over seven years. Since the credit card transactions were very highly satisfactory and excellent without a single default, the said bank Viz., S.C.B has consistently kept on increasing the credit limits periodically and the present limit enjoyed by the complainant is @ Rs.2,76,457/- and is valid up to 2010. In view of the excellent conduct of credit card facility, the said bank viz S.C.B. offered yet another credit card bearing No.5543-7441-5785-9568 with a special feature of the dues under this card to be paid in equated monthly installments (EMI) with interest as fixed by the bank from time to time.

The credit card facility has been extended for making all kinds of payments as and when required by the card holder and the said bank will honour such payments immediately on behalf of the card holders and send the statements periodically to the card holders to enable the card holders to remit the money by cash/cheque as per the terms and practice prescribed by the bank. The complainant has taken a Life Insurance Policy for a sum of Rs.2.00 lakhs from M/s TATA AIG Insurance Co. Ltd., in the name of his son Chi. Y.G.Ajay a student, and the annual premium of Rs.13,942/- is payable annually. As per the facility available with M/s. TATA AIG, Insurance Co. Ltd., the complainant has availed the system of payment of the annual premium to the debit of his Credit Card Account No.5543-7441-5785-9568 and accordingly a printed format has been given to M/s. TATA AIG Insurance Co., duly signed and authorizing them to raise the debits to the complainant’s Credit Card Account with the SCB with special scheme to make payments under EMI scheme. In terms of this agreement M/s. TATA AIG Insurance Co. Ltd., would raise debits to his card account with the said bank i.e. Standard Chartered Bank and the said bank would place the said amount to the credit of M/s TATA AIG Insurance Co. Ltd., with their bankers. This has been carried out for payment of the annual premium for the year 2006.

But suddenly, the debit raised by M/s TATA AIG Insurance Co. Ltd., during 2007 for payment of the annual premium for the year 2007, the said bank Viz SCB has dishonored the debit raised by M/s. TATA AIG Insurance Co. Ltd., with the reason “Card Expired” although the said credit card is valid till May 2010. This has rendered the life policy being lapsed and the consequential losses and other issues. The complainant took up the matter with the said bank i.e., SCB in writing and over telephone on several occasions only to get some vague, evasive and irresponsible answers and has not evoked any positive response as remedy to the issue.

The complainant being a resident of Bangalore, upon receipt of the intimation of the policy being lapsed rushed to the Office of M/s. TATA AIG Insurance Co. Ltd., and pleaded with them to revive the policy after arranging funds and remitted the premium amount and got the policy revived amidst physical, financial, emotional stress and loss of reputation etc., From the above it is very clearly evident that although the credit card was and is valid up to 2010, the said bank i.e. SCB has not only acted negligently but also demonstrated its lack of service. Hence the complainant approached this forum.

Op appeared through its counsel, filed its version and also gave evidence by way of affidavit. Complainant gave his evidence by way of affidavit. Heard arguments on both sides and counsels of both parties submitted their written arguments also.

According to learned counsel for complainant, by looking into the excellent conduct of the complainant towards his bank transactions under credit card, add on card was issued by the OP voluntarily. But the learned counsel for Op submitted that on the application made by the complainant only the said card was issued and the same was not issued voluntarily. If the said additional card was issued on the application made by the complainant, the Op should have produced the same before this forum. Admittedly no fee has been collected by the Op for the issue of additional card. When regular card was with the complainant and the credit limit itself is more than Rs.2½ lakhs there was no necessity to the complainant to make an another application for the additional card. After looking into the banking transactions under the credit card, the Op has issued the add on card voluntarily.

Another point for consideration is whether a separate authorization is required to the bank for the debiting of the premium amount claimed by M/s TATA AIG Insurance Company. The add on card under which equivalent monthly installments were debited was expired during the year 2007. The premium was debited by the Op under the said card regularly till 2006. The add on card was renewed by the Op on its own from 2007 to 2010. According to learned counsel for Op when the claim was made by the insurance company due to change of numbers, the computer did not accept it. No where it is mentioned in any of the document, the separate requisition is required after renewal of add on card. If the requisition is required, the OP should have intimated to the complainant to submit the requisition letter for renewal of EMI benefits. But no such intimation was sent to the complainant. The Op has unable to prove that a separate requisition is required after the renewal of the card. Under such circumstances, the rejection of payment of insurance premium for the year 2007 definitely amounts to deficient act of the Op. The complainant has acted immediately and paid the amount by way of cash into the Insurance Company otherwise the policy would have lapsed because of negligent act of the Op. The complainant underwent mental agony and stress for which, Op has to compensate the complainant.

In view of the discussions made above, we are of the opinion that the complainant has proved the deficiency in service on the part of the Op. Accordingly, we pass the following order.

Complaint is allowed. Opposite party is directed to pay an amount of Rs.3,000/- (Rupees Three Thousand only) as compensation to the complainant with cost of Rs.2,000/- and this amount is to be paid to the complainant within 60 days from the date of this order.
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LATEST CONSUMER JUDGMENTS from the website Core Centre



DATE OF DECISION: 24/12/2009.

In the matter of:
Standard Chartered Bank,
H-2, Connaught Circus, New Delhi.



1. Shri D.R.Sood, S/o Shri N.R.Sood,
R/o Uma Niwas, Upper Kaithu, Shimla.,

2. Medicare Services (I) Pvt. Ltd. Kolkata having registered office at Flat No.2 Paul Mansions, 6, Bishop Lefroy Road, Kolkata, 700 020.


Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.
Hon’ble Mrs. Saroj Sharma, Member.
Hon’ble Mr. Chander Shekhar Sharma, Member.

Whether approved for reporting ? No.

For the Appellant: Mr. Ajit Jaswal, Advocate

Vice Mr. Neeraj Gupta, Advocate.
For the Respondent No.1: Present in person.

For the Respondent No.2: None.

O R D E R:

Justice Arun Kumar Goel (Retd.), President.
M.A. No. 172/2007:

1. Appellant is aggrieved from the order dated 20.9.2006 passed by District Forum, Shimla in Complaint No.50/2006. While allowing the complaint ex parte, appellant has been directed to pay sum of Rs.1,06,455/- with interest @ 9% per annum from the date of filing of the complaint, i.e. 17.1.2006 till actual payment was made alongwith Rs.10,000/- as cost of litigation.

2. This appeal is barred by limitation. As such M.A. No. 172/2007 has been filed for condonation of delay. It is admitted by the appellant that copy of the order dated 20.9.2006 was forwarded to it vide letter dated 10.1.2007. Assuming this position to be correct, as alleged by the appellant, as also keeping in view the fact that there were winter vacations, appeal should have been filed on the first opening day before this Commission. That was admittedly not done as is evident from the date of presentation of this appeal as it was presented on 8th March, 2007. Therefore, appeal is patently barred by time.

3. In the light of these facts now we have to deal with this application so far prayer for condonation of delay is concerned. In the aforesaid background it was urged on behalf of the appellant that in the face of the facts detailed in the application deserves to be condoned. For ready reference, contents of this application are extracted here-in-below:-



1. That the appellant has filed the accompanying appeal against the order dated 20th September, 2006 passed in complaint case No.50/2006. The contents of the said appeal and the grounds be read as part of the present application as the contents of the same are not reproduced herein for the sake of brevity.

2. That as disclosed, copy of the impugned order dated 20.9.2006 was forwarded vide letter dated 10.1.2007 of the Consumer Forum. It is the case of the appellant that they were never served and was, therefore, not having any record of the case.

3. That in view of the intimation received vide letter dated 10.1.2007, the appeal was to be filed on/or before 11.2.2007. It is submitted that the Consumer Forum as well as this Hon’ble Commission was closed on account of winter break and it resume functioning on 27.2.2007 and therefore, the appeal was to be filed immediately on the date of opening. However, the appeal could not be filed immediately on the date of opening as the Consumer Forum resume on 27.2.2007, there were some information which was to be collected from the Consumer Forum for which necessary steps were taken by the lawyer. It is further submitted that the appellant bank has no branch in Shimla and the lawyer also who was to conduct the appeal was out of station. Therefore, the appeal could not be filed immediately on the opening and there is a delay of 2-3 days which has taken place in filing the appeal.

4. That it is submitted that the delay which has taken place is bonafide and there exist sufficient reasons for condonation of delay which has taken place in filing the appeal.

5. That it is submitted that appellant has a good case on merits and therefore, the delay of 2-3 days which has taken place in filing the appeal may kindly be condoned and appellant seek indulgence of this Hon’ble Forum for this purpose.


It is, therefore, most respectfully prayed that the delay in filing the appeal against the order dated 20.9.2006 passed by District Consumer Dispute Redressal Forum, Shimla in Complaint Case No.50/06 be condoned.Any other order this Hon’ble Forum may deem fit and proper in the facts and circumstances of the case may also be passed.”

4. When put to notice, respondent seriously contested this application and pointed out that no sufficient cause is made out from the allegations made in the application. Amongst other things, respondent has further mentioned in his reply that application was vague and misconceived. Affidavit of the counsel or his clerk in support of the contents raised in the application was not filed and estoppel was also set up as a ground due to its own wrongful acts, deeds, conduct and acquiescence. It was further pleaded by the respondent that the appellant did not appear despite service during proceedings before District Forum below. With his reply respondent has attached an envelope, that according to him contained notice sent to the appellant by the District Forum below envelop containing the notice is also filled by the respondent. .

5. With a view to get the matter sorted out, number of orders were passed which, for ready reference, are extracted here-in-below:- (i) “30.5.2007:
Present: Mr, Ajeet Jaswal vice Mr. Neeraj Gupta, Advocate for the Appellant.

Sh. D.R. Sood respondent in person. Main thrust of the submission of Mr. Jaswal in this case is that all the appellant has been condemned unheard to its prejudice without their being served. Further, according to him, no notice was ever received of the complaint filed by the respondent. Thus, according to learned counsel, the order is not only illegal, arbitrary, unjust and harsh, but is also opposed to the principles of natural justice and fair play. Therefore, the appeal needs to be allowed and case remanded back to the District Forum below. After setting aside the impugned order with a direction to afford opportunity to the appellants to file their version and then after taking evidence of the parties to dispose of the matter in accordance with law.

2. So far plea based on non-service of the appellant is concerned, it is belied from the two ADs of the notices which were duly served upon opposite parties No.2 & 3. Learned counsel has been confronted these ADs. Before taking into consideration his submission, we may mention that appellant bank has been sued at three addresses. First it has been sued through Manager, N.R. (Northern Region), Standard Chartered Bank, Connaught Circus, New Delhi. Then it has been sued through Area Manager, 23-25, Mahatma Gandhi Road, Fort Mumbai and thirdly, it has been sued through 19 H.R. Benefits and Funds Administration, 19 Netaji Subhash Road, Kolkata. So far service at Mumbai and Kolkata is concerned acknowledgements are there on record. So far service at Delhi office who is the only appellant in this appeal is concerned, registered notice was sent to it on 20.3.2006. Since, the registered Letter was neither received back, either served or un-served and none appeared for the other two parties, therefore, appellant alongwith the other two branches were set ex-parte on 1.5.2006 by the District Forum below. For ascertaining as to when the registered letter was sent to the appellant, we had requisitioned the record of postal receipt which was also shown to the learned counsel and could not controvert the same.
Faced with this situation, Shri Jaswal submitted that this case may be taken up on 1.6.2007 for further hearing. Prayer allowed. Be listed on 1.6.2007.”

(ii) “1.6.2007:
Present: Mr. Janesh Gupta, Advocate vice Counsel for the appellant.

Mr. Deepak Bhasin, Advocate for the respondent.
Heard further.

Before further examining this case, we feel that in the circumstances of this case, let appellant place on record material to show as to how the staff erstwhile ANZ Grindlays Bank which subsequently merged into Standard Chartered Bank is to be dealt with so far payment of their pension, medi-claims and other benefits alike are to be ensured by the appellant-Bank. We may also note that by referring to Annexure-N, Shri Gupta learned Counsel for the appellant submitted that after 31.1.2004, his client is not liable for payment of any amount of compensation, so far reimbursement of medi-claims is concerned. For the present we say nothing in this behalf save and except that in case retired staff of the erstwhile ANZ Grindlays Bank was being reimbursed for their medi-claims, then how and from where they provide, is not the concern of the respondent. Appellant having obtained medi-claim policy if any for the retired staff and its shifting the same from one insurer to another, it is the internal matter of the Bank and it would not in any manner effect the rights of the retired staff of the Bank like the respondent in the present case, in case there is provision for medical reimbursement of the staff of ANZ Grindlays Bank.

In the light of the above facts, prayer of Shri Gupta is allowed. Case be listed for further proceedings on 29.6.2007. Meanwhile we direct that the appellant should re-examine the matter as per rules if any so far claim made in the complaint out of which the present appeal has arisen, is concerned. In case respondent is found eligible for being reimbursed either for the whole amount and/or any part thereof, pendency of this appeal will not come in the way of the appellant-Bank to reimburse after examining the whole case. Reconsideration of the matter will be without prejudice to the rights and contentions of the parties in this appeal. Be listed on 29.6.2007. Dasti copy.”

(iii) “30.7.2007:

Present: Mr. Ajit Jaswal, Advocate vice counsel for the appellant.

Respondent is present in person.

According to learned counsel for the appellant, though they have received a windows live hotmail print message, but complete documents have not been received.

Further according to windows live hotmail print message the staff of ANZ Grindlays Bank is to be dealt with for payment of medical claims, and pensioners settle their dues through hospitals and apply to Medicare for reimbursement. Bank pays premium to Medicare with the list of eligible pensioners and in case of any direct settlement by the latter, bank is not involved. Policy started in case of respondent once he joined ANZ Grindlays Bank, when appellant had tie-up with National Insurance Company Ltd. And in 1999 it was shifted to Medicare Services. Respondent is entitled to Medi Claim upto 31.12.2004. Bank paid premium to Medicare who will directly pay maximum sum of Rs.75,000/- after receiving original papers from him, (i.e. Sh. Dr. Sood) and in this settlement bank was not involved. Respondent was covered under Medicare upto 31.12.2004 and his claim against this date i.e. 2.3.2004 to 16.3.2004 is to be reimbursed by the Medicare.

Whereas stand of the respondent is that so far he is concerned, the amount is to be reimbursed to him by the appellant bank as was being done in the past while he was in service. He further stated that, if any arrangement is made between the bank and the Insurance Company, he has nothing to do with it, save and except that the appellant is entitled to be reimbursed by the bank, how and from where is a matter with which he is not concerned.

In the light of above facts we deem it necessary to direct that some responsible officer of the appellant bank to be present on the next date of hearing well acquainted with the rules and regulations as to what is the position of reimbursement of Medi claim if any, of the respondent and also how the bank proposes to reimburse his claims after 1st January, 2005 onwards and why his Medi claim has not been settled. In the face of the admitted position respondent is entitled to be reimbursed qua his Medi Claims upto a particular amount.

Time for depositing the balance amount in terms of order dated 16.3.2007 is extended as prayed for, which prayer is not opposed. Longer date is given at the request of Mr. Jaswal. It is made clear that in case needful is not done then the stay against execution shall stand vacated automatically, so far amount over and above Rs.25,000/- deposited in this appeal is concerned. And in such a situation the respondent willl be free to execute the order qua the balance amount without any further direction from us. List this case on 11th October, 2007.”
“Copy Dasti”.

(iv) “4.4.2008:

Present: Mr. Neeraj Gupta, Advocate,
Mr. Ajay Monga, Advocate,
Mr. Ajit Jaswal, Advocate,

For Standard Chartered Bank Limited alongwith Ms. Anju Sharma, Officer of the Bank.
Mr. Deepak Bhasin, Advocate for the respondent with
Mr. D.R.Sood, respondent in person.

Though number of pleas were urged in support of this appeal on behalf of the appellant bank. However, its learned counsel on instructions received from the Officer of the bank stated at the Bar that the medical insurance benefits arrangement is made by the appellant with Medicare Services (I) Pvt. Ltd., at its Kolkata office. Further, according to learned counsel to these benefits employees like respondent and their family members are entitled to upto the age of 70 years, and not beyond that. This position was contested by Mr. Bhasin on instructions received from his client. We say nothing in this behalf for the present.

So far the claim made which is subject matter of this appeal is concerned, admittedly it pertains to period prior to 31.12.2004, upto which date respondent is entitled to medical insurance benefit. Earlier it was with NIC Ltd., but after it was changed and now it is with Medicare Services (I) Pvt. Ltd., which is clubbed with General Insurance Co. Ltd.It was further stated that all admissible claims on receipt of original bills will be examined by the said Medicare Services (I) Pvt. Ltd. and within reasonable time, admissible amount will be reimbursed by the said Insurance Company to the respondent.

We feel that for doing complete justice between the parties, Medicare Services (I) Pvt. Ltd., Kolkata having registered office at Flat No.2 Paul Mansions, 6, Bishop Lefroy Road, Kolkata 700020 needs to be added as party in this case, ordered accordingly. Notice be issued to this newly added respondent in this appeal returnable for 25.6.2008.

Meanwhile we feel that in the face of the above noted facts this matter needs to be sorted out without delay, if possible amicably. As such without prejudice to the rights and contentions of the parties in this appeal, as an interim measure we order as under:-

a) that all the original bills and other relevant documents upto 31.12.2004 will be furnished by the learned counsel for the respondent alongwith a list thereof to Mr. Neeraj Gupta during the course of day to day against receipt.

b) After receipt of the originals, those will be forwarded by the appellant to the newly respondent, who shall process the same and release the admissible amount to the respondent, if any by or before 25.6.2008 under intimation to the appellant, as well as to the respondent.

c) Some responsible officer of the newly added respondent will appear in person in case, only if it has any reservation or otherwise in settling the claim. This direction is necessary keeping in view the fact that at least upto 31.12.2004, the respondent is entitled to the medical insurance benefit as admitted by the appellant from the said newly added respondent because premium stands already paid by it (the appellant), to cover such risk.

M.A.No.217 of 2008:

Amount tendered with this application is ordered to be invested with PNB, Kasumpti, Shimla. This application stands disposed of.Since entire amount according to the appellant has been deposited in this appeal, execution and operation of the order passed by District Forum, Shimla in complaint No. 50/2006 decided on 20.9.2006 will remain stayed till the disposal of this appeal.

“Dasti copy to the parties.”
(v) “25.6.2008:

Present: Mr. Ajay Monga, Advocate with Mr. Ajit Jaswal, Advocate for
Standard Chartered Bank Ltd.

Mr. Deepak Bhasin, Advocate for the respondent with his client.

Mr. Sanjay Khanna, Advocate for the newly added respondent i.e. Medicare Services (I) Pvt. Ltd.

When this matter came up for consideration it was stated by Mr. Khanna, that after receipt of papers from the appellant in terms of the order dated 4.4.2008 passed by us alongwith copy of the said order. He further stated that his client had taken up the matter with the Insurance Company i.e./ National Insurance Company Ltd., however till date final decision had not been taken, though as per the order dated 4.4.2008 needful should have been done by now. He prayed for extension of time for complying with the directions issued on 4.4.2008 so far release of admissible amount by the newly added respondent in favour of respondent No.1 Mr. Desh Raj Sood is concerned. There appears to be no justification in allowing this prayer particularly when all the documents were received by respondent No.2 as far back as on 7th May, 2008 from the appellant. Without saying anything further in this behalf, we hereby direct the newly added respondent i.e. Medicare Services (I) Pvt. Ltd., Calcutta shall scrutinize the papers forwarded to it by the appellant and then shall release the admissible amount due and payable on or upto 31.12.2004.

In this behalf we may clarify that Mr. Monga though contested the maintainability of the complaint by Mr. Desh Raj Sood qua his client, but at the same time he fairly stated, that upto 31.12.2004 premium has been paid and respondent No.1 alongwith his family members is entitled for medical reimbursement till he, (the respondent No.1) attains the age of 70 years. This question has been left open as is evident from our earlier order and will be adjudicated upon by us. So far respondent No.2 i.e. Medicare Services (I) Pvt. Ltd., is concerned, it is duty bound in law to consider and to have thereafter released the admissible claim to respondent. Let needful be done and case is ordered to be listed on 1.8.2008.

In case the amount is not released, CMD of Medicare Services (I) Pvt. Ltd., Calcutta will remain present in person, and in case he fails to appear, coercive process may have to be issued against him for procuring his presence. This direction has been necessitated in the face of the order dated 4.4.2008 and having not complied with by the newly added respondent.

“Dasti Copy.”
(vi) “28.8.2008:

Present: Mr. Janesh Gupta, Advocate for the appellant.
Mr. Deepak Bhasin, Advocate for respondent No.1 alongwith his client.

When this case was taken up today, Mr. Gupta prayed for adjournment, as according to him cheque in the sum of Rs.6,458/- dated 24.5.2008 has been sent to him, for what and in which case and against which medi-claim bill of the respondent, has not been informed to him.

While allowing prayer for adjournment of Mr. Gupta now following directions are issued to the appellant;

a) to produce the copy of the Rules and Regulations as ordered on 1.6.2008. In addition to this what were the terms of take over/merger of ANZ Grindlays Bank Limited, with the appellant will also be produced particularly those relating to the retired employees like respondent in this appeal of ANZ Grindlays Bank Ltd;

b) how the matter was dealt with by the appellant to ensure that admissible and due amount upto the period i.e. 31.12.2004 to which the respondent is entitled to be reimbursed by the appellant, after examination of the bills pertaining to this period those were delivered to the appellant by the respondent through its learned counsel;

c) We may clarify that M/s Medicare Services (I) Pvt. Ltd., Kolkata was added as a party with the sole purpose of getting the matter settled. Instead of this being settled we are of the view that it is getting complicated, because the newly added respondent has now applied for adding National Insurance Co. Ltd. as a party. We feel that there is no need of its being added as a party. As such we reject M.A. No.589/2008 filed by the newly added respondent No.2 i.e. Medicare Services (I) Pvt. Ltd. Kolkata.

Learned counsel for the parties are directed to collect copy of this order free of cost from the Reader of the court during the course of this week. Be listed on 1.10.2008.”

6. We must confess that all our efforts failed in getting the dispute resolved, rather the decision got delayed on this count.

7. In the aforesaid circumstances it was prayed on behalf of the respondent that appeal being barred by time and no sufficient cause having been shown, the application may be dismissed and appeal be ordered to be consigned to records. We are alive to the situation that while considering a case for condonation of delay, approach of the Court does not have to be too pedantic or technical. To the contrary, it has always to be justice oriented, aimed at not only minimizing the litigation but also setting the controversy between the parties at rest for all times to come. Another reason to favourably consider an application for condonation of delay, is that no litigant stands to gain by filing a time barred lis. To the contrary, he runs the risk of getting his case dismissed. We are also aware that Courts are respected for doing justice between the parties. Therefore, on facts being there, approach of the Court has to be liberal in favour of an applicant, who applies for condonation of delay.

8. However, at the same time we are also sanguine of the fact that with a view to enable the Court to favourably consider its prayer for condonation of delay, a litigant like appellant in this appeal, is supposed to provide adequate and sufficient material on record, thus enabling the Court to condone the delay. Therefore, the party applying for condonation of delay has always to place sufficient material on record explaining that delay is bonafide. That being the position, we shall now examine whether a case is made out for condonation of delay or not.

9. It was urged on behalf of the appellant that on an overall examination, sufficient cause was made out, therefore, delay needs to be condoned. We have already extracted the contents of the application in preceding paras of this order. We are prima facie satisfied that no case is made out for condonation of delay from the application. To the contrary, if anything is made out from the contents of the application (supra), then it is only unnecessary delay, as also it cannot be said that delay in filing the appeal is bonafide.

10. Even after the appeal etc. with affidavit was prepared and attested on 19.2.2007, it was preferred on 8.3.2007. What the learned Counsel had to say in this context on behalf of the appellant, Shri Jaswal submitted that this is a hard case and according to him this application be allowed, otherwise his client will be condemned unheard. As already discussed, from the contents of the application for condonation of delay its beauty is its brevity and nothing more.

11. In addition to this, sufficient cause is neither shown nor is even made out from the facts detailed in the application. In the absence of material on record, we are unable to interfere with the impugned order. It is also by now well known that sufficient cause is a question of fact to be established by a litigant, like the appellant in this appeal. 12. Faced with the situation Shri Jaswal finally urged that in case the delay is condoned his client would only be heard on merits and nothing more. Therefore, he prayed for allowing this application. This submission on the face of it appears to be very innocuous, but when examined in depth on the facts (supra), its hollowness is exposed. Reason being that a right accrues to the respondent on account of appeal being time barred, therefore, until the appellant satisfies that there is sufficient cause for condonation of delay, prayer made by Shri Jaswal needs to be rejected. Ordered accordingly.

13. For the view we have taken in this case while rejecting the application for condonation of delay, we place reliance on the Four Member Bench of the National Commission in the case of Cativision Products Ltd. vs. Nagpur Entertainment and News Network and Another, 2005 (1) CPC 357 and of Hon’ble Supreme Court in the case of P.K. Ramachandran vs. State of Kerala and Another, AIR 1998 SC 2276.

In the light of the above discussion, no cause much less sufficient cause is made out from the facts detailed in the application as extracted here-in-above, therefore, this application is dismissed.

APPEAL NO. 69/2007.

Since delay in filing the appeal has not been condoned, as such this appeal is ordered to be consigned to record as time barred.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary. A copy of this order also be sent by post to the respondent No.2, free of cost as per rules.


Dated: 24/12/2009.

( Justice Arun Kumar Goel ) (Retd.)

( Saroj Sharma )

( Chander Shekhar Sharma )
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possessory remedies in indian law

Possessory Remedies in the Indian law


Final year, LL.B. (hons.),
National Law University, Jodhpur.
Possession: a brief introduction

The term possession expresses the physical relation of control exercised by a person over a thing. Salmond says- “the continuing exercise of a claim, to the exclusive use of a thing, constitutes the possession of it”. Bentham says defining the concept of possession is like defining the geometric conception of roundness. Absolute roundness cannot be defined and so with this concept. Maine defines possession as physical detention coupled with the intention to hold the thing detained as one’s own. Pollock has given a different view on the meaning of possession. He said: “in common speech, a man is said to possess or to be in possession of anything which he has the apparent control, or from the use of which he has the apparent power of excluding others. The Supreme Court has opined in the case of Superintendent v. Remembrance R [1] that “Possession is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical definition of possession uniformly applicable to all situations in context of all statutes.”

Possession is a conception which is only less important than contract. But the interest attaching to the theory of possession does not stop with its practical importance in the body of English law. The theory has fallen into the hands of the philosophers, and with them has become a corner-stone of more than one elaborate structure. It will be a service to sound thinking to show that a far more civilized system than the Roman is framed upon a plan which is irreconcilable with the a priori doctrines of Kant and Hegel. [2] Those doctrines are worked out in careful correspondence with German views of Roman law. And most of the speculative jurists of Germany, from Savigny to Ihering, have been at once professors of Roman law, and profoundly influenced if not controlled by some form of Kantian or post-Kantian philosophy. Thus everything has combined to give a special bent to German speculation, which deprives it of its claim to universal authority.

Possession can be of various types namely:
1. Immediate possession
2. Mediate possession
3. Representative possession
4. Concurrent possession
5. Derivative possession
6. Adverse possession
7. Duplicate possession

Why possession is protected
Why is possession protected by the law, when the possessor is not also an owner? That is the general problem which has much exercised the minds of jurists. Kant, it is well known, was deeply influenced in his opinions upon ethics and law by the speculations of Rousseau. Kant, Rousseau, and the Massachusetts Bill of Rights agree that all men are born free and equal, and one or the other branch of that declaration has afforded the
answer to the question why possession should be protected from that day to this. Kant and Hegel start from freedom. The freedom of the will, Kant said, is the essence of man. It is an end in itself; it is that which needs no further explanation, which is absolutely to be respected, and which it is the very end and object of all government to realize and affirm. Possession is to be protected because a man by taking possession of an object has brought it within the sphere of his will. [3] He has extended his personality into or over that object. As Hegel would have said, possession is the objective realization of free will. And by Kant's postulate, the will of any individual thus manifested is entitled to absolute respect from every other individual, and can only be overcome or set aside by the universal will, that is, by the state, acting through its organs, the courts.

There are many reasons for protection of possession:

1. Protection of possession aids the criminal law by pre serving the peace. According to Savigny, the protection of possession is a branch of protection to the person. Possession is protected in order to obviate unlawful acts of violence against the person in possession. Interference with possession inevitably leads to disturbance of peace. Order is best secured by protecting a possessor and leaving the true owner to seek his remedy in a court of law. Justice Holmes writes: "Law must found itself on actual facts. It is quite enough therefore for the law that man, by an instinct which he shares with the domestic dog and of which the seal gives the most striking example, will not allow himself to be dispossessed either by force or by fraud, of which he holds, without trying of get it back again. To obviate the violence resulting from this, possession is protected by the law."

According to Ihering, possession is ownership on the defensive. The possessor must be protected and he must not be asked to prove his title. Most of the possessors are the rightful owners and it is desirable that they should be protected. Possession is the evidence of ownership. Possession is patent to all. Possession is the nine points of law and hence protection should be given to possession.

According to Holland: "The predominant motive was probably a regard for the preservation of the peace" ‘The view of Windschield is that protection to possession is given in the same way as protection is given against injuria or the violation of a legal private right

2. Possession is protected as a part of the law of tort. Law protects possession not only from disturbance by force but from disturbance by fraud. The protection thus afforded is a part of the law of tort.

3. According to the philosophical school of jurists, possession is protected because a man by taking possession of an object has brought it within the sphere of his will. The freedom of the will is the essence of personality and has to be protected so long as it does not conflict with the universal will which is the State.
As possession involves an extension of personality over the object, it is protected by law. As the reputation of a person is protected against defamatory attack, his possession is protected as he has projected his personality over the object of possession.

Kant says that men are born free and equal. Freedom of will is the essence of man and it must be recognised, respected, protected and realised by all governments. Possession is the embodiment of the will of man. By taking possession of a thing, a person incorporates his will and personality in that thing. Possession is the objective realisation of free will and the will of a person as expressed in possession must be protected. Puchta writes: "The will which wills itself, that is, the recognition of its own persona lity, is to be protected." The view of Gans is that "the will is of itself a substantial thing to be protected and this individual will have only to yield to the higher common will.

4. Possession is protected as a part of the law of property.
Cairns writes:
"Possession was originally protected to aid the Law of Crime and Tort; it came at length lo be protected in order to aid the law of property." (The Social Sciences, p. 65), In the early stages of the development of the law of property when proof of title to property was difficult, it was considered to be unjust to cast on a person whose possession was disturbed the burden of proving a flawless title. Therefore, the law presumed that the possessor was the owner until a superior title was shown to exist in someone else. In this way, possession came to be protected by law.

The view of Salmond is that distinct possessory remedies are not required and the punishments of criminal law and the sanctions of the Law of Tort are sufficient to prevent the evils of violent self-help. [4] An owner who has dispossessed a trespasser need not be required to deliver possession to the trespasser and recover it back in an independent proprietary action. As for assistance rendered to the law of property, the modern law of evidence can adjust the burden of proof suitably and avoid the duplication of proprietary and possessory remedies.

While these considerations are entitled to great weight, expediency requires that possession as such must be protected. In India, a compromise has been made between proprietary and possessory remedies. If the dispossessed owner brings his suit promptly within six months, he is allowed to succeed merely on proof of possession even against the true owner. If he brings his suit beyond that period, he is non-suited if the defendant proves a superior title in himself.
What is a remedy?

The Black’s law dictionary [5] defines remedy as the means of enforcing a right or preventing or redressing a wrong. The Osborne’s law dictionary [6] defines remedy as the means whereby breach of a right is prevented, or redress is given. Legal or judicial means by which a right or privilege is enforced or the violation of a right or privilege is prevented, redressed, or compensated may be called a remedy. [7]
It is the means by which a contractual right or obligation is enforced or the violation of such a right is prevented, reduced or compensated. [8] Remedies may be defined in the contract, by agreement between the parties such as by accord and satisfaction, by arbitration, by operation of law or judicial remedy such as by action or suit. [9] Remedy is a way of repairing harm or damage (also to one's reputation) suffered, or of improving an unsatisfactory situation. [10]

What are Possessory Remedies & Why are they recognized
Possessory remedies are those which exist for the protection of possession even against ownership. Proprietary remedies are those which are available for the protection of ownership. In many legal systems, possession is provisional or temporary title even against the true owner. Even a wrongful possessor who is deprived of his possession can recover it from any person whatsoever on the ground of his possession. Even the true owner who retakes his own, must first restore possession to the wrongdoer and then proceed to secure possession on the ground of his ownership.

There are many reasons why possessory remedies are recognized [11] –

1. Possession often amounts to evidence of ownership. A finder of goods becomes its owner against the whole world except the true owner. This is on the ground that he is in possession of it. If a person is in adverse possession of a property for 12 or more years, he becomes the legal owner of that property and the right of the original owner is extinguished

2. The evils of violent self-help are very serious and in all civilised countries, those are prohibited. Experience shows that there can be better conditions in society if the use of force is avoided by the real owners. Lawful methods are always to be preferred and no one should take the law into his own hands.

3. Another reason for possessory remedies is to be found in the serious imperfection of early proprietary remedies. Those were cumbersome, dilatory and inefficient. Every claimant had to undergo many hardships. The position of the plaintiff was a very difficult one and no person was to be allowed to occupy the advantageous position of the defendant. 11 was under these
circumstances that it was provided that the original state of affairs must be restored first. Possession mubt be given to him who had it first and then alone the claims of the various persons could be settled. Under the old legal systems, h was extremely difficult to prove one's ownership and recover the property on the ground of title. Very often, small technicalities resulted in the defeat of one's title to property.

4. Another reason for possessory remedies is that it is always more difficult to prove ownership than to prove possession. Hence it is unjust that a person who has taken possession of property by violence should not be allowed to transfer the heavy burden of proof from his own shoulders to that of his opponent. He who takes a thing by force must restore it and he is free to prove that
he is the owner.

Development of the concepts of possession and possessory remedies in Roman law & Common law
The influence of Courts of Law and of their procedure upon Property has been most extensive, but the subject is too large for the dimensions of this treatise, and would carry us further down the course of legal history than is consistent with its scheme. It is desirable, however, to mention, that to this influence we must attribute the importance of the distinction between Property and Possession -- not, indeed, the distinction itself, which (in the language of an eminent English civilian) is the same thing as the distinction between the legal right to act upon a thing and the physical power to do that thing [12] -- but the extraordinary importance which the distinction has obtained in the philosophy of law. Few educated persons are so little versed in legal literature as not to have heard that the language of the Roman jurisconsults on the subject of Possession long occasioned the greatest possible perplexity, and that the genius of Savigny is supposed to have chiefly proved itself by the solution which he discovered for the enigma. Possession, in fact, when employed by the Roman lawyers, appears to have contracted a shade of meaning not easily accounted for.

The word, as appears from its etymology; must have originally denoted physical contact or physical contact resumeable at pleasure; but, as actually used without any qualifying epithet, it signifies not simply physical detention, but physical detention coupled with the intention to hold the thing detained as one's own. Savigny, following Niebuhr, perceived that for this anomaly there could only be a historical origin. He pointed out that the Patrician burghers of Rome, who had become tenants of the greatest part of the public domain at nominal rents, were, in the view of the old Roman law, mere possessors, but then they were possessors intending to keep their land against all comers. They, in truth, put forward a claim almost identical with that which has recently been advanced in England by the lessees of Church lands. Admitting that in theory they were the tenants-at-will of the state, they contended that time and undisturbed enjoyment had ripened their holding into a species of ownership, and that it would be unjust to eject them for the purpose of redistributing the domain. The association of this claim with the Patrician tenancies, permanently influenced the sense of "possession." [13]

Meanwhile the only legal remedies of which the tenants could avail themselves, if ejected or threatened with disturbance, were the Possessory Interdicts, summary processes of Roman law which were either expressly devised by the Praetor for their protection, or else, according to another theory, had in older times been employed for the provisional maintenance of possessions pending the settlement of questions of legal right. It came, therefore, to be understood that everybody who possessed property as his own had the power of demanding the Interdicts, and, by a system of highly artificial pleading, the Interdictal process was moulded into a shape fitted for the trial of conflicting claims to a disputed possession. Then commenced a movement which, as Mr John Austin pointed out, exactly reproduced itself in English law. [14] Proprietors, domini, began to prefer the simpler forms or speedier course of the Interdict to the lagging and intricate formalities of the Real Action, and for the purpose of availing themselves of the possessory remedy fell back upon the possession which was supposed to be involved in their proprietorship.

The liberty conceded to persons who were not true Possessors, but Owners, to vindicate their rights by possessory remedies, though it may have been at first a boon, had ultimately the effect of seriously deteriorating both English and Roman jurisprudence. The Roman law owes to it those subtleties on the subject of Possession which have done so much to discredit it, while English law, after the actions which it appropriated to the recovery of real property had fallen into the most hopeless confusion, got rid at last of the whole tangled mass by a heroic remedy. No one can doubt that the virtual abolition of the English real actions which took place nearly thirty years since was a public benefit, but still persons sensitive to the harmonies of jurisprudence will lament that, instead of cleansing, improving, and simplifying the true proprietary actions, we sacrificed them all to the possessory action of ejectment, thus basing our whole system of land recovery upon a legal fiction.

Also, the learning of possession disguised itself by its very importance. The Common Law never had any adequate process in the case of land or any process at all in the case of goods, for the vindication or ownership pure and simple. So feeble and precarious was property without possession, or rather without possessory remedies, in the eyes of medieval lawyers, that Possession largely usurped not only the substance but the name of Property; and when distinction became necessary in modern times, the clumsy term ‘special property’ was employed to denote the rights of a possessor not being owner.

Some possessory remedies in Indian law
The Indian legislators have taken care of providing possessory remedies and it is reflected in various statutes. Some of the statutory provisions are being discussed below in this chapter.

Specific relief act, 1963
S. 5 of the SRA deals with action for recovery of possession of specific immovable property based on title. The essence of the section is that whoever proves a better title in a person entitled to possession. The title may be on the basis of ownership or possession. The purpose behind s.5 is to restrain a person from using force and to dispossess a person without his consent otherwise than in the due course of law. S.6 of the same act provides that if any person is disposed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may by suit, recover possession thereof.
SS. 5 & 6 give alternative remedies and are mutually exclusive. u/s 5 a person dispossessed can get possession on the basis of title whereas u/s 6 a person dispossessed may recover possession merely by proving previous possession and subsequent wrongful dispossession.
Moving further, SS. 7 & 8 of the same act provide for methods for recovery of possession of some specific movable property.

Code of criminal procedure, 1973
s. 145 [15] of the Cr. P. C. lays down the procedure where a dispute concerning land or water is likely to cause breach of peace. Commenting upon the scheme of s. 146, the Supreme Court has observed [16] that the object of the section no doubt is to prevent breach of the peace and for that end to provide a speedy remedy by bringing the parties before the court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined by a competent court.
s. 456 [17] of the same code provides that when a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation, and by such force or show of force or intimidation, any person has been dispossessed of any immovable property, the court may within one month after the due date of conviction, order that possession of the same be restored to that person.

Sale of Goods Act, 1930
s. 47 of the Act provides for sellers’ lien. Lien is the right to retain possession of goods until certain charges due in respect of them are paid. The unpaid seller has the right to retain the goods until he reserves their price. S. 47 provides that the unpaid seller of goods who is in possession of them is entitled to retain his possession until payment or tender of the price in following cases –

1. where the goods have been sold without any stipulation as to credit,
2. where the goods have been sold on credit, but the term of credit has expired,
3. where the buyer becomes insolvent.

S. 48 of the same act provides for part delivery. It reads –
“48. Part delivery.—Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien on the remainder, unless such part delivery has been made under such circumstances as to show an agreement to waive the lien.”
Thus, where an unpaid seller has delivered a part of the goods, he may exercise his lien on the remainder. The party, who alleges that part delivery was intended to operate as delivery of the whole, has to prove that fact. [18]

Indian Contract Act, 1872
s. 168 of the ICA, 1872 provides for the right of finder of goods. It reads:
“168. Right of finder of goods, may sue for specific reward offered.—The finder of goods has no right to sue the owner for compensation for trouble and expense voluntarily incurred by him to preserve the goods and to find out the owner; but he may retain the goods against the owner until he receives such compensation; and, where the owner has offered a specific reward for the return of goods lost, the finder may sue for such reward, and may retain the goods until he receives it.
Furthermore, s. 169 of the same Act reads:
169. When finder of thing commonly on sale may sell it. — When a thing which is commonly the subject of sale is lost, if the owner cannot with reasonable diligence be found, or if he refuses, upon demand, to pay the lawful charges of the finder, the finder may sell it—
(1) when the thing is in danger of perishing or of losing the greater part of its value, or
(2) when the lawful charges of the finder, in respect of the thing found, amount to two-thirds of its value.

SS. 168 & 169 protect the interest of the finder in 2 ways- s. 168 allows the finder to retain the goods against the owner until he receives compensation for trouble and expense. Further, where the owner has offered a specific reward for the return of the goods lost, the finder may sue for such reward, and may retain the goods until he receive it.
S. 169 allows the finder to sell the goods in certain circumstances. Where the thing found is commonly the subject of sale and if the owner cannot be found with reasonable diligence, or if he refuses to pay the lawful charges of the finder, the finder may sell the goods in the following cases:
1. when the thing is in danger of perishing or of losing greater part of its value,
2. or when the lawful charges of the finder, in respect of te thing found, amount to 2/3 of its value.
For it has been held that, if a stick of timber comes ashore on a man's land, he thereby acquires a "right of possession" as against an actual finder who enters for the purpose of removing it.

Adverse Possession
Adverse possession is a way of acquiring title to real property by physically occupying it for a long period of time. Through this, one may acquire property without the consent of the actual title holder if one possesses it long enough and meet the legal requirements. Adverse possession is one kind of involuntary transfer of ownership rights in real property. [19] Under the doctrine of adverse possession, the true owner of a piece of real property cannot bring an action to eject someone who has actually possessed the property for a certain period of time.

Possessory Remedies and Doctrine of Jus Tertii
Possessory remedies have been rejected by English law but other provisions have been made to protect possession. There are three rules in this connection. Prior possession is prima facie proof of title. He who is in possession first in time has a better title than the one who has no possession. A defendant is always at liberty to rebut that presumption by proving that he has a better title. A defendant who has violated the possession of the plaintiff is not allowed to set up the defence of jus tertii which means that he cannot plead that though neither the plaintiff nor he has the title, some third person is the true owner but the plaintiff is not. This defence is not valid under English law as prior possession is always a prima facie proof of title. Though the title of a third person is not a good defence, English law considers jus tertii as a good defence under the following circumstances:
1. When the defendant defends the action on behalf of and by the authority of true owner,
2. When he committed the act complained of by the authority of the true owner,
3. When he has already made satisfaction to the true owner by returning the property to him.

1. PJ Fitzgerald, Salmond on Jurisprudence, (New Delhi: Universal Law Publications, 2002)
2. VM Shukla, Legal Remedies, (Lucknow: Eastern Book Co., 1998)
3. VD Mahajan, Jurisprudence & Legal Theory, (Lucknow: Eastern Book Co, 2003)
4. Krishna Swamy, Law of Adverse Possession , 13th Edn. 2002

1. Superintendent v. Remembrance R, AIR 1980 SC 52
2. RH Bhutani v MF Desai, AIR 1968 SC 1444
3. Ex.P. Cooper, (1879) 11 Ch. D. 68 CA

1. Specific relief act, 1963
2. Code of criminal procedure, 1973
3. Sale of Goods Act, 1930
4. Indian Contract Act, 1872

1. -
4. cfm?index=forms&filename=Form16402
5. pl?court=ok&vol=/supreme

1. Osborne’ law dictionary
2. Black’s law dictionary

[1] AIR 1980 SC 52
[3] VD Mahajan, Jurisprudence & Legal Theory, (Lucknow: Eastern Book Co, 2003)
[4] PJ Fitzgerald, Salmond on Jurisprudence, (New Delhi: Universal Law Publications, 2002)
[5] Black’ law dictionary
[6] Osborne’s law dictionary
[11] VD Mahajan, Jurisprudence & Legal Theory, (Lucknow: Eastern Book Co, 2003)
[15] 145. Procedure where dispute concerning land or water is likely to cause breach of peace.—(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1).

[16] RH Bhutani v MF Desai, AIR 1968 SC 1444
[17] 456. Power to restore possession of immovable property.—(1) When a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation, and it appears to the Court that, by such force or show of force or intimidation, any person has been dispossessed of any immovable property, the Court may, if it thinks fit, order that possession of the same be restored to that person after evicting by force, if necessary, any other person who may be in possession of the property:
Provided that no such order shall be made by the Court more than one month after the date of the conviction.

[18] Ex.P. Cooper, (1879) 11 Ch. D. 68 CA, cited from, VM Shukla, Legal Remedies, (Lucknow: Eastern Book Co., 1998
[19] Krishna Swamy, Law of Adverse Possession , 13th Edn. 2002

Source:">possessory remedies in indian law
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Read the ebook Jurisprudence by John William Salmond

Please visit the below link to read the ebook of Jurisprudence by John William Salmond

Source:">Read the ebook Jurisprudence by John William Salmond
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10 Commandments of Cross

The title refers to 3 questions you need to ask yourself before cross examining and 10 commandments to follow on cross examination. Just following this simple formula will allow you to be able to conduct a good cross examination or simply say confidently, "no cross, your honor."

3 Questions to ask yourself before cross examining:

Q1. Do I want anything from this witness?
Q2. Can this witness say anything to help my case or client?
Q3. Has this witness said anything to hurt my case or client?

If your answer to Q1 and Q2 is a yes but your answer to Q3 is a no, sit down and shut up after saying "no cross, your honor."

One fundamental truth to remember on cross examination is that the witness is not your witness. Presume that the witness is prepared for your cross; presume that the witness will not be willing to help you; presume that the witness will not willingly admit to lying, especially lying under oath; presume finally that the witness believes that s/he is telling the truth.

Remembering all these things will put in perspective any cross--it is far too dangerous to go fishing for information from a witness whose answers you are not familiar with. So, if the witness has not said anything to hurt your case or client but you simply feel that the witness may help you with information, weigh the risk of the witness being anything but cooperative and take the better part of discretion by shutting up.

But if your answer to Q1 and Q2 is a no but your answer to Q3 is a yes, by all means, cross.

10 Commandments of Cross:

1. Know what you want from the witness.

Among the most painful things to watch in a court room is a counsel cross examining for the sake of cross examination. The questions are frequently 5Ws and 1H questions--yep, direct examination questions. And, of course, we know what the witness on cross will do when you ask for information--s/he will give it to you.

2. Never ask a question you do not know the answer to yourself.
3. Never ask anything but a leading question (well, hardly ever).

The second and third commandments are interrelated. You are allowed to lead on cross examination but you cannot hope to ask a leading question if you do not know the answer yourself. Remember that a leading question is one that contains or suggests the answer. Cross examination is not the time to ask for information from the witness. It is the time to put the answers you want in the mouth of the witness.

Note that the best leading questions are statements. Answers come in the form of statements and so lead the witness by simply putting the statement in the mouth of the witness; if your opponents asks, "is there a question there, your honor?", you may simply repeat the statement and end with a lilt at the end and perhaps a cocked eyebrow.

4. Be brief.
5. Use plain words.

The fourth and fifth commandments are also interrelated. Many a cross has floundered simply because the cross examiner is weighed down by the weight of the words s/he chooses and not by the answer s/he intends to suggest by it. There is no compelling reason to ask long questions nor use words that are complicated or complex. The best leading questions are those that are short and direct to the point. Use words that are one syllable long, two at the most, three on rare instances, four hardly ever. Anything longer and more complicated than this might confuse the witness as to what answer you are suggesting.

6. Listen to the answer.

While you may want to build up a pace or rhythm, it is essential that you listen to the witness. While you may be putting words in the mouth of the witness, you still need to listen to his/her answers. Failure to do this will mean the difference between the witness being led or you being objected to for being argumentative. For instance, "you were there at three pm?" (witness says, yes, which is what you expected) "and you were there with your friends?" (here you might be expecting a yes, but witness says no; but because you're not listening, you ask) "and you and your friends did nothing?" (the objection will be made at this point and it will most likely be sustained).

7. Do not quarrel with the witness.
8. Never answer the witness.

The one thing you want to have on cross examination is control of the witness and the situation simply because the witness is not yours. Many witnesses will engage you in arguments or be openly hostile; or the witness may ask you rhetorical questions. Engaging the witness will distract you and diminish your control of the witness and the situation.

When the witness quarrels with you or asks you questions, stop, take a breath and politely but firmly inform the witness that you are not there to quarrel with him/her or to answer his/her questions and that you would greatly appreciate it if your question could be answered. If the witness continues to quarrel with you or ask you questions, politely but firmly call the Judge's attention.

9. Never allow the witness to explain anything.

Again, remember that the witness is not yours. S/he will have information you do not want; s/he will give answers you do not know or want. So, lead the witness but do not make the witness your own.

10. Avoid unnecessary questions.

Many lawyers succeed in catching the witness in a lie or with inconsistent answers but because of excitement or just plain ignorance, allow the witness to escape by asking totally unnecessary questions. For instance:

"Mr. witness, you said earlier on direct examination that the car you saw was blue?" (yes)
"In your sworn statement, you said under oath that the car you saw was red?" (yes)
"You are referring to the same car?" (yes)

Note that the witness has now been caught with what appears to be a major inconsistency as the car cannot be both red and blue. This is a perfect time to stop but frequently cross examiners, probably in their excitement, proceed to ask the unnecessary question, thus:

"Now, Mr. witness, can you please explain to the court how this same car could be both red and blue?"

Source:">Vinculum Juris: 10 Commandments of Cross
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R. Ayya Nadar Karthik vs P. Iya Nadar Charitable Trust And ... on 3 December, 2004 (rectification of trademark)

Intellectual Property Appellate Board

Equivalent citations: 2005 (31) PTC 105 IPAB
Bench: S Jagadeesan, R Singh
R. Ayya Nadar Karthik vs P. Iya Nadar Charitable Trust And Ors. on 3/12/2004


S. Jagadessan, Chairman

1. The petitioner filed these two petitions for rectification of the registered trade mark label 'CAMEL' bearing registration numbers 109120 and 439372 in class 34 in respect of safety matches and card board safety matches in the name of the first respondent. The case of the petitioner is that one P. Iya Nadar set up a match factory in the year 1945 under the name and style of South Indian Lucifer Match Works for the manufacture of safety matches. He conceived the brand name of 'CAMEL' which was registered in his favour on 4.4.1945 under the Trade Marks Act, 1940 as TM 109120. Originally being a proprietory concern, it was converted into a partnership firm in the year 1955 under a deed of partnership dated 15.12.1955 by which the said P. Iya Nadar had taken his daughters Rajathiammal and Banumathi Raja, respondents 6 and 7 herein as partners. After formation of the partnership firm, a request in form TM-24 was made on 24.6.1959 for effecting an amendment to the Register and the same was carried out. On 12.3.1962 the partnership firm was dissolved and a deed of dissolution was entered into on 4.7.1962 and thereby the South Indian Lucifer Match Works once again became a proprietory concern of the founder P. Iya Nadar. A request in form TM-24 was duly made and accepted. Thereafter, the registered trade marks had been periodically renewed from time to time. In the year 1973 once again the said Iya Nadar converted the business into a partnership and subsequently on 15.10.1974 the 10th respondent herein was readmitted to the benefits of the partnership alongwith respondents 11 to 13 and the petitioner. The petitioner and respondents 11 to 13 were all minors on the date of their induction to the benefit of the partnership firm. The request in form TM-24 was made on 24.5.1975 for including all the new partners of the firm and the same was duly carried out. Once again the partnership firm was dissolved under a dissolution deed dated 31.8.1980 and a deed of settlement dated 1.10.1980 was executed by the said Iya Nadar in favour of the first respondent trust. Again a due request was made in form TM-24 on 12.6.1981 and the same was accepted by the Trade Mark Registry on 2.4.1984. During the process the said Iya Nadar died on 27.12.1982.

2. The second trade mark No. 439372 had been directly applied for in the name of the Trust and the mark is to be treated as an associated trade mark with the earlier registered mark bearing No. 109120 in Part A of the Register. Subsequently the first respondent trust stopped the manufacturing and trading activity in its name and instead started licensing the mark to various other entities including companies owned by the petitioner's father and the petitioners apart from several third parties as well. The first respondent trust also resumed manufacturing and trading activity after passage of several years. The petitioner was a minor at the time when he was inducted for the benefit of the partnership firm as well as the time of dissolution of the partnership firm and the settlement in favour of the first respondent trust. He attained majority only on 5.1.1992. The petitioner was not aware of any of the business matters as he was not involved in the family business due to his concentration on his education. In the year 1995 he took over the management of another family business M/s Janaki Packaging Pvt. Ltd. which was in the business of tin printing and can manufacturing. Though he became a Director in some of his father's match factory units in the year 1996 he was not involved in the match industry. However, he came to know through his father that litigation is pending before the Madras High Court as well as District Court, Virudhunagar between his father and the first respondent trust. Rajapalayam Industries and Commercial Syndicate Ltd., of which the petitioner is also a Director, filed the petition for rectification of the subject mark and for expunging the same which was transferred to this Appellate Board and Numbered as TRA No. 43/2003/TM/CH. The petitioner on independent legal advice now has filed this petition for rectification for the removal of the first respondent trust's name on the ground that the first respondent trust's ownership was entered in the Register without notice to the other partners and consequently direct the reinstatement of the petitioner and respondents 2 to 13 as the co-owners of the registered mark 'CAMEL' on the following grounds:-

(i) When the form TM-24 was accepted by order dated 2.4.1984, no notice was served on the other partners and as such there is procedural irregularity in the entry of the Register while the dissolution of partnership and the settlement in favour of the first respondent trust were entered into.

(ii) The Register had entered in the register the dissolution of the partnership without a valid deed of reconstitution or dissolution. Similarly, the settlement in favour of the first respondent is not enforceable as the trade mark 'CAMEL' became the property of the firm constituted by virtue of deed of partnership dated 1.4.1973 and 5.10.1974.

(iii) The TM-24 ought not to have been acted upon in the absence of joint application by all the partners or in the alternative without any notice to those who have not signed the application.

(iv) The petitioner being minor at the time of dissolution of the firm and the settlement in favour of the first respondent, the minor's interest could not have been dealt with without prior permission of the Court and as such the dissolution of the partnership thereby the petitioner's interest in the business had been deprived is quite invalid.

(v) Even assuming the petitioner was represented by his father or mother as the guardian, it is to be tested whether they have got such authorisation or power to give up the rights of the petitioner.

The petitioner also stated that the present petition is not barred by limitation and he came to know about the dissolution deed and the settlement in favour of the first respondent trust only in August, 2003 and thereafter he has filed this petition.

3. The first and second respondents filed counter. They generally denied the allegations and further added that the founder P. Iya Nadar originally started the business as a proprietory concern and later converted it into a partnership firm and the partnership firm was dissolved and once again the partnership firm was reconstituted and dissolved. The settlement deed dated 1.10.1980 and the dissolution deed dated 31.8.1980 are with the full knowledge of the petitioner's father and as such it is not open now to the petitioner to challenge the same. Moreover, the petitioner after attaining majority in the year 1992 was fully aware about the transactions and he did not propose to challenge the action of his grand father immediately on attaining majority. Except the petitioner the other respondents do not challenge either the dissolution deed or the deed of settlement. In fact the father of the petitioner who filed TRA No. 43/2004 for removal of the trade mark from the Register did not dispute the dissolution deed and also the settlement deed in favour of the first respondent trust. Now the petitioner has challenged the deeds which were executed nearly 24 years back and as such the proceedings are barred by limitation. Further, the petitioner did not attribute any mala fide intention to his parents and as such everything done with the knowledge of his guardian regarding the dissolution deed of partnership must be taken as valid. The inordinate delay in initiating these proceedings clearly establishes that this is only an after thought on the part of the petitioner without any real grievance. The nature of dispute raised by the petitioner can be adjudicated only before a Civil Court and this Board cannot go into such details. The petitions are not maintainable under the provisions of the Act and the same are liable to be dismissed.

4. We have heard the arguments of Shri S. Natarajan and Shri R. Rajaram learned counsel for the petitioner and Shri Madan for R1 and R2 on 13.10.2004 and 14.10.2004.

5. After the matter was argued the learned counsel for the petitioner requested time to produce the original partnership deed and the dissolution deed. Time was granted till 28.10.2004. The petitioner filed those documents on 9.11.04 with a petition for condoning the delay. We perused those documents also.

6. Learned counsel for the petitioner vehemently contended that the petitioner and the respondents 11 to 13 were taken as partners when Iya Nadar converted the business into a partnership firm. At that time the petitioner and others were minors. Subsequently in the year 1980 once again the partnership firm was dissolved and the business was settled in favour of the first respondent trust under a deed of settlement dated 1.10.1980. The minors interest cannot be dealt with even by the natural guardian without the sanction of the Court and as such the dissolution of the partnership by taking away the rights of the minors without any legal sanction from the Court is illegal and as such the said dissolution deed ought not to have been acted upon by the Registrar. He further contended that the other partners were not given any notice before the order was passed on TM-24 filed by the said Iya Nadar. He also contended that the petitioner made an attempt to get the certified copy of deed of dissolution of partnership and the Trade Marks Registry was unable to furnish the same. The certificate obtained from the Registrar of Firms in respect of South Indian Lucifer Match Works reveal the induction of the partners in the year 1973 and induction of the petitioner as partner represented by his father and natural guardian in the year 1974. The certificate is dated 3.9.3003 which do reveal neither the dissolution nor the reconstitution of the firm. In that case there is no dissolution deed and the entry made by the Registrar in the Register on form TM-24 with regard to the dissolution is without any dissolution deed and as such the entry is illegal and the entries cannot be allowed to continue in the Register. Hence, the rectification is to be ordered.

7. On the contrary the learned counsel for the respondent with equal force contended that the petition is barred by inordinate delay. Due to the delay the Registrar of Trade Marks as well as the parties are not in a position to lay their hands on the original documents. There is every possibility that the documents might have been destroyed after lapse of a reasonable time. The non-availability of the dissolution deed after lapse of 25 years cannot be taken for granted that the entry in the Register is without any valid documents. Moreover, the petitioner is challenging the action of his guardian for giving concurrence to the dissolution, assuming if any, and such action cannot be raised before this Appellate Board. It can be gone into only by a Civil Court. Hence, there is absolutely no merit in these petitions.

8. Out of the arguments the questions that arise for consideration are;

(a) Whether the Registrar has made an entry on form TX-24 regarding the dissolution of the partnership firm dated 1.3.1980 on the basis of any valid dissolution deed or in the absence of any dissolution deed?

(b) Whether the action of the guardian of the petitioner in concurring for the dissolution of the partnership firm in which the petitioner was a partner during his minority is binding on the petitioner?

(c) Even assuming that the action of the guardian of the petitioner is binding on the petitioner, whether such entry is bad for want of notice to the petitioner and the other partners?

(d) Whether this Board can direct reinstatement of the petitioner and respondents 2 to 13 as co-owners of the registered marks on the ground that the dissolution deed dated 31.8.80 is illegal?

(e) To what relief the petitioner is entitled, if any?

9. In a nutshell it can be clearly stated that the petitioner's grievance at this stage is that he was taken as a partner in the partnership business South Indian Lucifer Match Works in the year 1974. Consequently the partnership was reconstituted in 1978 and 1979. Thereafter the partnership was dissolved by a dissolution deed dated 31.8.1980 and the business was settled in favour of the first respondent trust under the settlement deed dated 1.10.1980. During the execution of both the deeds the petitioner was a minor and as such the dissolution of the partnership taking away the petitioner's rights without a sanction of the Court is illegal and the entry on TM-24 without notice to the other partners including the petitioner is null and void and consequently such illegal entry cannot be permitted to be continued in the Register. Even if issue by issue the discussion is to be made, these are all the relevant matters to be discussed.

10. The petitioner has filed this application under Section 57 read with Section 125 of the Trade Marks Act, 1999. Section 125 is an enabling provision for filing rectification petition before the Appellate Board. Section 57 which deals with the power to cancel or vary the registration makes it clear, that on an application made to the Appellate Board or to the Registrar by any person aggrieved, the authority can make such order as it may think fit for cancelling or varying the registration of the trade mark on the ground of any contravention, or failure to observe a condition entered on the Register in relation thereto. Sub-section (2) of Section 57 empowers the rectification if a person is aggrieved by the absence or omission from the Register of any entry, or by any entry made in the Register without sufficient cause or by any entry wrongly remaining on the Register or by any error or defect in any entry in the Register. A perusal of the provisions and the plea raised in the petition would lead to the fact that the petitioner is seeking rectification on the ground that the entry made in the Register is without sufficient cause and the same is wrongly remaining on the Register. Without the fear of repetition we have to recall the reasons for such plea.

11. One is the non-availability of the dissolution deed of partnership. Though the said plea was available at the time of argument, in view of the production of the same, no longer the said plea is available to the petitioner. Regarding the question of want of notice is concerned, except the petitioner none of the respondents came forward to support his plea. The respondent No. 5 being father of the petitioner and who is the petitioner in TRA-43/2004 which was also heard on 14.10.2004 did not support the petitioner. Moreover, the petitioner was admittedly a minor on the date of the application, in form TM-24 and as such the petitioner is not entitled for any notice. Section 30 of the Indian Partnership Act deals with the rights of the minors admitted for the benefit of the partnership. With the consent of all the partners a minor can be admitted for the benefit of the partnership. In the case on hand, the petitioner, Ms. Malaraval, R-13 and Thirumagal R-12 were as minors admitted for the benefit of the partnership under the deed dated 3.4.1979 by the then partners Shri Iya Nadar and Mrs. Rajathi Kanagamani R-10. Thereafter, Ms. Thirumagla became major and after her exercising the option under Section 30(5) she was taken as a partner and the other minors Ms. Malaraval R-13, petitioner and one Shri Abiruban who is not a party to this petition were admitted for the benefits of the partnership under the deed dated 1.3.1980. The three partners signed the deed. Similarly the three partners signed the dissolution deed dated 31.8.1980. All these documents were produced by the petitioner. Section 39 of the Indian Partnership Act provides for dissolution of the partnership by consent of all the partners. Since the dissolution deed was signed by all the partners it has to be taken that the dissolution is only with the consent of all the partners. The said deed also mentions about the settlement of the minors' shares. The petitioner who was admitted for the benefit of the partnership cannot challenge the dissolution which is with the consent of all the partners. When once the dissolution had taken place and necessary entries were made in the Register of Trade Marks the request in form TM-24, the same cannot be said to be an entry without sufficient cause. Hence the petitions have to fail.

12. Apart from that the entries regarding dissolution were made in the Register in 1980. A direction for the continuation of partnership cannot be made without the consent of other partners. When the partnership was dissolved during the minority of the petitioner, it is not open to him to seek for such a direction after 24 long years. There is no doubt the petitioner was set up by his father for filing these petitions as alternate for his petition TRA/43/2003/TM/CH and this is clear from the request made by the petitioner to have a joint hearing of all the rectification petitions. The dissolved partnership cannot be revived by a direction of the Court especially when such dissolution is only with the consent of the partners. The relief sought in these petitions is totally a misconceived one.

13. Moreover, the petitioner has now raised the dispute with regard to the assignment of the disputed trade marks in favour of the first respondent trust which was originally owned by the partnership, firm. Section 45 of the Act deal with the registration of assignments and transmissions. Proviso to Sub-section (1) of the Section 45 specifies that where a validity of assignment or transmission is disputed between the parties, the Registrar may refuse to register the assignment or transmission until the rights of the parties have been determined by a competent Court. The proviso makes it clear that such dispute with regard to validity of the assignment of the marks cannot be enquired by the Registrar and it is open to parties to go before a Civil Court, which means such disputes with regard to the validity of the assignment is beyond the scope of this Act and thereby the authorities constituted under this Act has no power to go into the questions or disputes which falls outside the scope of the Act. Moreover, in this case no dispute was raised before Registrar. On this ground also the dispute raised by the petitioner cannot be gone into by this Board.

14. Since, the petitioner has miserably failed to establish that the entries in the Register are without any sufficient cause, we are of the view that these petitions are liable to be dismissed. Hence, the petitions are dismissed with cost of Rs. 5000.

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