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  Shubham Budhiraja Shubhambudhiraja02@gmail.com Advocate, Delhi High Court A filed suit against B for infringement of his trademark whereas B filed its written statement along-with application under Order 7 Rule 11 for rejection of the plaint for lack of cause of action. B took the plea because he is a prior user of the mark and thus there is no infringement. The Trial court dismissed the application . The Hon’ble High Court under Article 227 confirmed the trial's court order and held that these pleas would be an answer to the suit but not indicative of an absence of cause of action. There can be no confusion between the existence of a cause of action and the absence of merit in the suit. Whether the plaintiff would ultimately succeed or not, cannot dictate the existence of a cause of action .   (I)                  The High Court exercising supervisory jurisdiction does not act as a co...

  SHUBHAM BUDHIRAJA [1] Ms. A (Mother) executed a Will in favor of his elder son Mr. C and died in year 1995. Mr. B (Father) executed the registered will and died in year 2005. The Elder son  Mr. C  died  in the year 2005. The other son Mr. D filed a partition suit to divide the family property whereas wife of elder son Mr. C filed petition to probate the Will of Mother and Father. The Court Probated the Will. The High Court set aside the Will for reason that Will was drafted in suspicious circumstances because (i) Mother and Father were ill during days when they Will was drafted, (ii) Mr. C being direct beneficiary was present at time when will was drafted, (iii) There are contradictory statements regarding timings when will was drafted. The Supreme Court set aside the High Court order and held that Will was not executed in suspicious circumstances because (i) the signatures are not disputed; (ii) the Father was attester in Mother’s will, (iii) Father Will was r...

SHUBHAM BUDHIRAJA [1]   A and B enter into a contract whereby A agreed to complete the project within the timeline, the parties also agreed on a clause that in case there is any delay in completion then other party will not be entitled to any damages. A delayed in completing the project by 3 years. The arbitral tribunal awarded in favor of B including the claim of damages for delay. The Delhi High Court confirmed the arbitrator reasoning that the said clause would not be applicable where the delay is unreasonable and of a long duration. This exclusionary clause would not preclude the B from raising a claim for compensation. The ‘Business Efficacy Test’ is required to be applied while considering the exclusionary clause [2] .   (I)                  It is well settled that the question as to interpretation of a clause of a contract falls within the jurisdiction of an arbitral tribunal. The decision o...

    SHUBHAM BUDHIRAJA [2]   (I)                  Petitioner having knowingly chosen to apply under the reserved category of Scheduled Cast (SC) cannot now be permitted to contend that he had mistakenly failed to mention that he was a CW category candidate. In fact, it appears that the petitioner took his chance as a SC candidate while applying for admission and it is only when he realized that he would not be able to secure admission in the said category that he now wants to be considered under the CW category .   (II)                Such change of category after declaration of the results of the entrance examination would have far reaching repercussions on the entire admission process and would cause grave prejudice to the other students who had applied in the right categories.   (III)  ...

Shubham Budhiraja (LLB, ACS, BCOM(H)) Shubhambudhiraja02@gmail.com The Editor of a newspaper published the news and disclosed the identity of the child victim. The mother of victim filed a criminal complaint under section 23 of POCSO act against the editor. The police investigated and submitted the report to the special court who took cognizance of the same. The editor filed petition under 482 CRPC for quashing the complaint on basis that because section 23 POCSO is a non-cognizable offence and therefore investigation and consequently final report, without prior permission of magistrate under section 155(2) CRPC, is bad in law. The High Court refused to quash on basis that POCSO act prevail over CRPC. The apex court referred the matter of CJI because both judges had conflict of judgments wherein one has allowed the appeal and other has refused the appeal [1] .   Affirmative view : POCSO > CRPC and legislative aim is to protect the identity of the child victim. CRPC Investigatio...

The cultural practice and religious practice are not the same concepts. Wearing Hijab is not mandatory (Farz) but only recommendatory in Islam. Therefore, Wearing Hijab is not an essential religious practice under Islam. The court cannot look beyond the religious doctrines to decide ‘whether a practice amounts to essential religious practice. [1] ’   Personal Views [2] (i)                   This Judgment may soon be challenge in Hon’ble apex court and may get clubbed with Sabrimala case which is already pending before larger bench of Apex court.   (ii)                 There are various ways to look at the proposition cited in this judgment . It is not merely related to Right to perform essential religious practice but also Freedom of conscience and Freedom of expression. The essential religious practice co...

    Shubham Budhiraja [1]   Mr. A, Partner in LLP filed suit against Partner B praying access to the business accounts of few clients. The commercial court rejected Order 7 Rule 11 application challenging jurisdiction. The Delhi High Court under Article 227 set aside the order and held that parties by agreement cannot confer jurisdiction if it inherently lacks. Mere because some of business is in Delhi, that per se will not confer jurisdiction especially when dispute is with regard to business accounts. An LLP may have clients or business in any part of the country. The registered address is not in Delhi and nor the Books of accounts kept in Delhi. Hence, there is no jurisdiction on Delhi court. Also, the NCLT will not have jurisdiction either because matter doesn't relate to merger, etc. under section 61 of LLP Act. Section 9 CPC applies and civil court is competent  to entertain the suit [2] .   (I)         ...

  Shubham Budhiraja [1] Mr. A resigned from the coaching center-I without giving 3 months’ notice and joined coaching center-II. Section 9 petition filed to restrain him to serve the coaching center-II unless 36 months lapsed as per the agreement. The court refused the prayer because the contract is determinable and specific relief of mandatory injunction cannot be allowed. Even, the Interim injunction/ restraint of teacher from working in coaching center-II cannot be allowed because negative clause of contract hit by section 27 of Indian contract act, the only remedy is damage against the teacher. [2]   (I)                  Employees are in the profession of teaching – the sweep and span of the injunction prayed for would render them incapable of employment avenues in their field of expertise viz. teaching/ in the same business as conducted by their former employer.   (II)  ...

Shubham Budhiraja [1] In this case, Ms. A filed writ petition seeking mandamus against Law faculty for reason that admission process was irregular and one question was incorrect and there are vacant seats unadjusted. The High Court refused the Writ and held that (i) even if Question was incorrect, the total marks still less than general list, (ii) seats of SC, ST can be transferred inter-se but not with General, (iii) There is no irregularity in admission process mere because administration allowed payment of fees after due-deadline . [2]   (I)                  In Santosh Kumari v. Union of India , (1995) 1 SCC 269 , the Court made it clear that the allotment of seats should go according to merit and cannot depend upon who comes to court and who does not. The Supreme Court cautioned against directing for further rounds of counselling merely because seats remained unfilled.   (II)   ...