PASSING OFF UNDER INDIAN TRADEMARKS ACT 1999: “A BIRD’S EYE

INTRODUCTION

The passing off action depends upon the principle that nobody has a right to represent his goods as the goods of somebody. In other words a man is not to sell his goods or services under the pretence that they are those of another person.

Passing off is not defined in the Act. It is referred to in section 27(2), 134(1) (c) and 135.Section 27(2) states that the rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. Section 134(1) (c) refers to injunction of courts to try suits for passing off arising out of the use of any trade mark. Section 135 specifies the remedies available in respect of passing off arising from the use of a trademark.

Now the question is arise that why passing off is necessary because already trademark given the protection to goods and services?

The Trademark is providing protection to registered goods and services, but the passing off action is providing a protection to unregistered goods and services. The most important point is that the remedy is same in both the cases but the Trademark is available to only the registered goods and services and passing off is available to unregistered goods and services. To more knowledge of this context we can summaries the case of Durga Dutt vs. Navaratna Pharmaceutical[2]; in this case the Supreme Court is set out the distinction between infringement and passing off. The action for infringement is a statutory remedy conferred on the registered owner of a registered Trade mark and has an exclusive right to the use of the trade mark in relation to those goods. And the passing off is available to the unregistered goods and services.

The second most important point is that the use by the defendant of the trade mark of the plaintiff is not essential in an action for passing off, but in the case of an action for infringement this will not applicable.

The third important distinction between these two is that  if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale marked differences or indicate clearly a trade origin different from that of the registered owner of the mark would be immaterial; but in case of passing off the defendant may escape liability if he can show that the added matter is sufficiently to distinguish his goods from those of the plaintiff.

In the cases of infringement the burden is always lies to the plaintiff. In the case of S.M. Dyechem Ltd. v. Cadbury (India) Ltd. In this case an infringement action is fail where plaintiff cannot prove registration or that its registration extends to the goods or to all the goods in question or because the registration is invalid and yet the plaintiff may show that by imitating the mark otherwise, the defendant has done what is calculated to pass off his goods as those plaintiff.

What the plaintiff must establish in a passing off action?

It is essential for success in a passing off action based on the use of a mark or get up that the plaintiff should show that the disputed mark or get up has become by user distinctive of the plaintiff’s goods so that the use in relation to any goods of the kind dealt in by the plaintiff of that mark or get up will be understood by the trade and the public as indicating the plaintiff’s goods.

When the passing off arise?

The passing off action is arise when there is misrepresentation, when it is harm the existence plaintiff’s goodwill, when it is made by a trader in the course of trade, which is injure the business of another trader and which cause actual damage to the business or goodwill of the trader by the whom action is brought.

But these requirements were reduced to three in Reckitt & Colman Products Ltd. V. Borden Inc.now there are three essential requirements for the passing off action:

v  The Claimant’s Goodwill: Although damage is the gist of an action for passing off, but the plaintiff must show that there is a reasonable reason of his being injured by the defendant’s action, even if the conduct of the defendant might be calculated to deceive the public. A private individual cannot institute a suit for passing off even if the defendant practices deception upon the public, unless it is proved that the defendant’s action is likely to cause damage to the individual.

v  Misrepresentation:  Misrepresentation in the simplest form of passing off. If A says falsely these goods I am selling are B’s goods. It is a clear case of passing off. In simple way we can say that misrepresentation should lead. Or be likely to lead confusion on the part of consumers. In case ofKhemraj v. Garg[8], in this case the defendants had copied the get up, layout, design and colour scheme, etc. and the name “manavpanchang,mani ram panchang” and “shri vallabh Mani Ram panchang” of the plaintiff’s panchang.The court held that it is similar to the plaintiff’s product and Interim injunction was granted.

In the case of Rupa & Co. Ltd v. Dawn Mills Co. Ltd. In this case the defendant manufacture an underwear which named dawn as similar to the plaintiff’s manufactured underwear don, which is creating confusion in the minds of people because the layout, get up and colour combination is same to the plaintiff’s product.

v  Damage: Damages are available in a passing off action. And remedy is available in both cases whether the infringement suit or passing off action in both the cases remedy is given. 

Now the question of how the passing off action arises?

The question of how the passing off action established. I just referred the two cases first case is relating to passing off action in domain name in this regard I just refer the case ofAkash Arora vs. Yahoo Inc, in this case the court held that the yahooindia is creating a confusion in the mind of the people. And the defendant yahooindia is same as the plaintiff’s yahoo. But as a student of law I am not go with the case decision because my views regarding to the case is that his site may be better than his competitors. And second important thing is that those who access the Internet they are capable to distinguish which site is yahoo. in and which one is yahooindia.So the question of confusion is not create when the people are able to distinguish between the sites then there will be no question of passing off arise.

The second case In Reckitt & Colman of India Ltd. vs. M.P. Ramachandran & Anr,Hon’ble Calcutta High Court (Barin Ghosh, J.) laid down five principles for granting an injunction in case of comparative advertising:

i. A tradesman is entitled to declare his goods to be best in the world even though the declaration is untrue;

ii. He can also say that his goods are better than his competitors, even though such statement is untrue;

iii. For the purpose of saying that his goods are the best in the world or his goods are better than his competitors he can even compare the advantages of his goods over the goods of others;

iv. He however, cannot, while saying that his goods are better than his competitors, say that his competitor’s goods are bad. If he says so, he really slanders the goods of his competitors and their goods, which is not permissible.

v. If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the court is also competent to grant an order of injunction restraining repetition of such defamation.

The Hon’ble court also observed in this case that “One can boast about technological superiority of his product and while doing so can also compare the advantages of his product with those which are available in the market. He can also say that the technology of the products available in the market has become old or obsolete. He can further add that the new technology available to him is far more superior to the known technology, but he cannot say that the known technology is bad and harmful or that the product made with the known technology is bad and harmful. What he can claim is only that his product and his technology is superior. While comparing the technology and the products manufactured on the basis thereof, he can say that by reason of the new superior technology available to him, his product is much superior to others. He cannot, however while so comparing say that the available technology and the products made in accordance therewith are bad and harmful.”

CONCLUSION

In the conclusion the researcher concludes that the passing off action is applied in unregistered goods and services, and in infringement of suit and passing off in both the cases the remedy will be same. Then the passing off is arise in three cases first when it is injured the claimants good will, secondly in misrepresentation and thirdly in damages, where the position is same like in infringement suit. And lastly when the concept of passing off is reading with domain name and technological changes then the concept of passing off is in different dimension.

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Struggle of A Lady in Divorce Case

Start with a quote : “Divorce is a game played by lawyers”. -Cary Grant 

I don’t agree with the quotation mentioned above.  The reason of my disagreement is not that I am a lawyer by profession but a complex case which I am sharing  herein. I hope that It will give a good insight in  litigation of a divorce case. It may be helpful to law students and laymen  as well.  Identity and timings are changed for the sake of confidentiality. Any match to any case is just coincident. People is not important at all.  The learning of a case is important for society.

This case is about a boy and a girl  who married happily and enjoyed the marriage life for six years before they entered in  the world of litigation. They had a love marriage. Love was not just a ‘love at first sight’, rather it was a love and probably live- in for six years and thereafter arranged marriage. Lady, hereinafter called ‘wife’ was educated in computers and was running a computer institute. The boy, hereinafter called ‘husband’ was a business man and running private equity holder company. Their love, as is say,  lasted for six years and then marriage and then married life lasted for another six years. No kids. No liabilities. Everything was fine till the  one fine day when  dispute arose on pinpointing each other on a small issue. Small issue turned to ISSUES…BIG ISSUES.  Issues started growing and then turned to suspicion. Suspicion turned to allegations. Allegations turned to heated arguments. Heated arguments lead to threatening and which lead to the forced expulsion of wife from  Husband’s home. Wife was virtually thrown out of house while withholding all the earnings, investments, ornaments, property shares. She was just thrown out with a threat to keep herself from any legal action otherwise be ready for consequence and asked her to arrange a huge sum if she want to return. She was legally not aware and having no idea of what to do. It was passed twelve years with a man whom she relied and trusted the most in the world, he was her husband. She saw the laughing face of her husband on her pain. She felt cheated, betrayed but now, all these words seems to be meaningless.

Afterwards, She returned to her parental home. Parents are parents after all. The happily accepted and supported her. One fine day, She received  a family court summons, intimating her about a divorce petition filed before family court under section 13 of  Hindu Marriage Act filed by her husband. Stunned and hurt…but accepted the  to face the legal battle.  She approached for legal help but can’t afford the fees. She fought the case herself  with the help of her guide, we can better say her legal guide. Then  trial begins in Family case. She learned the fundamentals of law and started gathering information and knowledge  from anywhere and everywhere she could gather. Futhermore, Husband denied any alimony/ ornaments/ clothe/valuable which she was entitle legally.

First provision she learned was section 13 of Hindu marriage Act, 1955. The basis of divorce. There are thirteen grounds given which can be basis of the divorce among Hindu couple. The most common ground “Cruelty” was taken in this case. “Cruelty”. Includes the  physical, emotional and mental.  Wife wanted to live with Husband so for that she had filed case of restitution under section 9 of Hindu Marriage Act. Section 9 of Hindu Marriage Act has a provision of “Restitution of conjugal rights” which means that husband or wife can not live separately without any reasonable cause. So second case filed in the matter.

Since wife was not an earning member so she didn’t had sufficient income to meet out expenses during the pendency of the case so she filed a separate application under section 24 of the Hindu Marriage act (HM Act in Short) before family court. Section 24 of HM Act has provision for pendelite expense and court has ordered 3,000/- on the application.  It was the third case in this matter.

As stated above the wife was asked by her husband to arrange a huge sum of money if she wanted to return the home. This type of demand falls under category of “Dowry” and it is prohibited under law.  She filed a police report  under section 498 A of Indian Penal Code (IPC in short) . Section 498 A of  IPC has provision of punishment for husband and their relatives for cruelty and demand of dowry. Police registered the case and put up before magistrate.This was the forth case in this matter.

During these proceeding, the husband’s sister and brother-in-law has threatened her on the phone to withdraw the cases against her else she would have to face consequences. When it became unbearable then she filed a police report and police has registered a fresh case under 503 IPC. Section 503 IPC had a provision for criminal intimidation which is commonly known as ‘Threatens”.  It was the fifth case in the matter.

The adamant husband has sent few obscene SMSes to her to tease and give a mental agony. She approached the police but police denied to register any case. Aggrieved by this  she filed a private petition under  section IPC 354. IPC 354 has provision for punishment for offense against assault or criminal force to outrage of modesty of a woman. Private petition can be filed under 200 Cr.P.C. Magistrate has order for police inquiry in the matter under section 156 Cr. P.C. On the basis of police report the case of registered and trial begin. It was the sixth case in the same matter.

During the marriage she and her husband together had purchased a flat with joint earnings but her husband and his family was residing in the flat and enjoying it. However, the 50% of sale price was paid by her  bank account but registry was done only on the name of her husband. That was the situation when both were living in love. Now, during litigation, the husband denied her to live in the home and thrown out of flat. So, she filed a suite of title declaration and possession for the flat as half of the sale price was paid from her bank account and she is equal owner of the property being actual buyer. This was the seventh case begin in the matter.

There was a bank fix deposit receipts on joint name of husband and wife. Which had a condition that it can be encash on  the name of ‘either or survivor’. Wife gave instructions to the bank not  to encash the FDR due to on going litigation but bank released the payment upon request made by husband with connivance of bank officials. She got nothing out of her Joint FDR. Bank didn’t respond to her request. A consumer case was filed and police report made against erring bank officials.  This was  the eighth case begin in the matter 

She filed a fresh case under section 125 Cr.P.C. for maintenance. Section 125 Cr.P.C has provision for payment of maintenance by husband to her wife in case she has not any adequate means to meet out expenses. She got relief from magisterial court and she got monthly maintenance of Rs. 1000/- .. This was ninth case in the matter.

There are few other cases filed meanwhile which we have removed to control the length of this article. After long legal battle, husband understood the seriousness of situation. Late but not the least.

Finally, the long legal battle of nine years both the husband and wife arrived to settlement. Wife, though in the stronger legal position, left much of her claim and given consent for settlement halfheartedly.  and she got satisfactory alimony. Husband filed one case on wife and he attracted the nine or more counter cases. It is apparent that lady struggled a lot to reach out justice. Finally, law has helped her a lot to reach the desired results.

I salute to the courage of the lady. It was her courage  in divorce case which lead her to get hold of what was her since the beginning of the first case.  Such courage is rare to find out. I can say that we should educate our daughters and give  them  strength of legal education so that they can stand firmly in the storm of life. So, Divorce is not the game played by lawyers, on the contrary, it is instrument for relief and justice where lawyers assist to aggrieved one.

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International diplomacy causes national shame

The Foreign Minister of India went on an official visit to Malaysia. In its capital Kuala Lumpur he presented a set of silver bowls to his counterpart which was accepted with thanks. However, on a closer examination of the sterling silver presents it came to light that the silver ware was NOT made of silver but of a cheap alloy. On a further examination of records back home in New Delhi, it was discovered that the Ministry of External Affairs had paid a sum of Rs 44,000/- for the fake silver ware whereas the middle man who had facilitated the transaction had actually paid Rs 14,000 or so for the deal. The hell broke loose thereafter and an investigation in depth was ordered. The facts as stated heretofore were found to be true but no responsibility was pinpointed for bringing the Nation into disrepute.

It was further found that the same Foreign Minister, Shri SM Krishna had presented fake silver bowl to foreign ministers of other countries that he had visited. Not only that, it also came to light that the same middle man had been facilitating purchase and delivery of the fake silverware for the last ten years or so. Apparently some senior officers were also recipients of the largesse of these illegal transactions and they kept their mouths shut for a handful of silver and India continued to be put to shame for presenting fake silver ware to the foreign ministers of  other countries with whom it wished to cultivate close friendly relations.

Nevertheless, no official, senior or junior has been punished for these acts and omissions of cheating that brought shame to our country. It is also not clear whether effective steps have been taken to ensure that there are no repetitions of such fake transactions in future. The law of the and may have to be made more stringent so that the cheats well versed in the art of fooling others do not get away with light punishment for serious crimes of this nature that involve reputation and image of the country.

It is rather unfortunate that the Ministry of External Affairs, Government of India is involved in many acts and omissions of cheating directly or indirectly. There have been press reports about empty pass port books being found abandoned in uninhabited places or by the lake side in remote corners. If the blank pass port books are kept in safe custody under lock and key, there is no way of their disappearance surreptitiously. Many foreign terrorists were found in possession of the Indian pass ports seemingly issued through due process sanctioned by law. However, issuance of pass ports was done after palms of officials were greased and a lot of money changed hands elsewhere.

Moral of the story is that the Ministry of External Affairs, Govt of India has to tighten its belt and ensure that its blank documents or forged documents do not change hands and pass on into the hands of terrorists lest the security of our motherland is jeopardised.

Special Psychology lessons for the officers and clerks of the men and women handling sensitive documents have to be conducted to ensure security of sensitive documents. Now terrorism in many forms is on the ascendancy and any loose talk or inappropriate comment may harm us and benefit the enemy. Of course, no patriotic person will like that to happen. If a traitor is up to an act of this nature it is our sacred duty to prevent it.

Let us remember that our Dharma prohibits us from destroying our values of life and helping the enemy across the border for a handful of silver. Passing on fake silver ware as sterling silver and causing its presentation to a minister of a neighbouring country will indeed destroy friendly relationship. Such acts, if repeated every now and then, will damage the credibility of our country and no other country will take our WORD seriously. Indeed the permanent loss in diplomacy will be ours. The damage done will be irreparable and the isolation of India that is Bharat may be in perpetuity.

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No Right to Life

No… this article doesn’t refer to the Right to Life that is guaranteed to each and every person in India, under article 21 of the Constitution of the Republic of India. On the contrary, it refers to the Right to life… or rather, put in better terms, the Right to Existence of the various states of the Union of India, under the federal structure proclaimed by the makers of our Constitution!!

The form of the Indian Constitution is supposedly Federal in nature.

‘The essential characteristics of a Federal Constitution… are present in the Indian Constitution.’

—— Page A-30 of Constitution of India by V.N. Shukla

According to Professor V.N. Shukla, ‘… the nature of our Constitution is Federal and that none of the terms of the Constitution violate the essentials of a federal polity.’

—— Page A-33 of Constitution of India by V.N. Shukla

In the case State of West Bengal v. Union of India, AIR 1963 SC 1241, Justice Subba Rao, in his dissent, had argued strongly treating the Indian Constitution as Basically Federal.

However, some scholar/institutions hesitate to characterise the Indian Constitution as truly federal because according to them, in certain circumstances the Constitution empowers the Centre to interfere in the state matters and thus places the states in a subordinate position which violates the Federal Principle.

For example, in the above mentioned case, i.e. State of West Bengal v. Union of India, the Supreme Court had held by majority, led by Chief Justice Sinha, that the Constitution is not truly federal.

Professor M.P. Singh, through his writing in M.P. Singh: Indian Federalism: Structure and Issues, lays down that he does not accept the stand that the Constitution of India is federal in the sense in which the known federal constitutions are. He follows somewhat of a similar position as has been taken by the Supreme Court, that the Constitution has some federal features but it does not fully accord with any established model of federalism.

There is also, the existence of such views, which question whether the Constitution of India can be said to be a federal Constitution at all ? They are, at best, amenable to the opinion that the Constitution is ‘quasi-federal‘ or ‘unitary with federal features‘ at best.

According to K.C. Wheare, ‘the specific provisions on the basis of which it is asserted that the fundamental postulate of a federal polity that the Central and State Governments functioning under it are coordinate authorities, each independent within its own sphere, is so greatly modified in the relationship between the Union and the State under the Indian Constitution, that the Indian Constitution cannot be called a federal Constitution. Wheare holds that the Constitution establishes a system of Government which is at the most ‘quasi-federal’, almost devolutionary in character, a Unitary State with subsidiary federal features rather than a federal state with subsidiary unitary features.’

—— K.C. Wheare: India’s New Constitution Analysed.48 All LJ 21

A similar view has been put forth by Professor P.K.Tripathi in Federalism: The reality and the Myth, 3J. Bar Council of India,251 (1974).

However, all such evaluations of the degree of federalism enshrined within the Constitution of India has been generally made with reference to the emergency related provisions that have been laid down in it, emergency being such a period, when the normal distribution of power between the Centre and the States undergo a vital change. The Parliament gets empowered to make laws with respect to any matter enumerated in the State List and it also gets empowered to give directions to any State as to the manner in which the State’s executive power is to be exercised. Moreover, Article 356 is cited by the detractors of the view that the Indian Constitution is a federal one, as an example wherein the States are shown to be in a subordinate position to the Centre. Under this Article, if the President is satisfied that the Government of a State cannot be carried on in accordance with the provisions of the Constitution, then he can dismiss the State Ministry and dissolve the Legislature and assume all functions of the State.

It is alleged by the detractors that these provisions enable the Union Parliament to convert the Union into a unitary State, which vitally affects the federal character of the Indian Constitution.

Along with the above mentioned provisions, another provision of the Indian Constitution, which is generally overlooked while discussing the character of the Constitution, can be cited to support the view that not only does the Constitution fail to be ‘truly federal’ in character, but it also goes very close to being a ‘unitary’ Constitution having certain ‘subsidiary federal characters’, in reality.

The provision being talked about in the above paragraph is Article 3 of the Constitution of the Republic of India. Article 3 of the Constitution of India deals with the ‘Formation of new States and alteration of areas, boundaries or names of existing States’.

Quote the section:-

The Indian Constitution, vide Article 3, has empowered the Parliament of India to alter the boundary and/or name of any State/States arbitrarily and unilaterally. In order to do any of the above mentioned work, a Bill to this effect must be compulsorily introduced in the Parliament. The Bill thus introduced, must satisfy at least two conditions.

1. The concerned Bill has to be introduced in either House of the Parliament, only on the recommendation of the President, and

2. If the Bill affects the area, boundaries or name of any State, then the President is required under Article 3, to refer the Bill to the Legislative Assembly/Assemblies of the concerned State/States, so that they can express their views regarding the Bill. The President is compulsorily required to specify in the reference, the period within which the concerned State Legislative Assembly/ Assemblies are supposed to express their views regarding he Bill introduced in the Parliament, under Article 3. The period so specified by the President can be extended by him, for such time as he may deem fit. However, if the opinion of the concerned State Legislature/Legislatures is/are not received within the specified or extended time, then the second condition shall automatically stand fulfilled.Thus, the Bill may be introduced in the Parliament even though the views of the concerned State/States have not been obtained by the President.

Now, what if the concerned State/ States expresses its/their views within the specified time and such views go against the proposal contained in the Bill? Nothing… nothing at all happens. The Parliament can still go ahead with the Bill and pass it, to make it into a law, against the wishes of the State Legislature/Legislatures. It was held in Babulal Parate v. State of Bombay, AIR 1960, SC 51, that if the State Legislature expresses its views within the time so specified and extended, the Parliament is not bound to accept or act upon the views of the State Legislature. It was further stated in the above mentioned case, that a fresh reference to the State Legislature is not necessary for an amendment of the Bill, if the amendment is proposed and accepted in accordance with the rules of procedure of Parliament and is germane to the subject-matter of the original proposal or is not a direct negation of it. The same was upheld in re, Berubari Union, AIR 1960 SC 858 at p. 860, wherein it was stated that it is not necessary to make a fresh reference to the State Legislature every time an amendment to the Bill is proposed and accepted.

Hence, it can clearly be understood from above that it is totally on the whims and fancies of the Centre, that the existence of a State of the Union depends. That the States do not have any right to existence and is subject to the sweet will of the Central Government, for their existence!! Thus, in accordance with the provisions of Article 3 of the Constitution, the Parliament may form a new State or alter the boundaries, name etc. of the existing ones and thereby change the political map of India vide a simple majority in the Parliament and by ordinary legislative process. This Article is merely held to be an example of the flexibility of the Indian Constitution by the proponents of the view that the Constitution is majorly federal in character. But the detractors may pretty well point out that it may be termed as a provision that actually hits the federalism present in the Constitution, where it hurts the most, i.e. by gifting the very life line of the States to the Centre, thereby making their subjugation and subordination at the hands of the Union Government that much more blatant and complete.

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Limitation Bars Suit, Not Defence

A defendant in a suit can raise any legitimate plea in his defence available to him to resist the claim of the plaintiff. Such a plea of the defendant might have been barred by limitation had he raised the same as plaintiff in a suit instituted by him. But limitation does not stand on his way when he raises the very same plea in his defence as defendant in a suit to resist plaintiff”s claim(AIR 1916 P.C. 172,2006(II)CLR 527.

Such an issue came for consideration before Sir Asuthos Mookerjee and Mr. Rankin, two eminent judges of the Calcutta High Court(AIR 1923 Cal 521), and it was held that when an old deed is challenged as fictitious or invalid by a defendant to resist plaintiff’s claim based upon the said deed, it cannot be said that the defence plea has become time-barred. Justice B.K. Mukharjee and Justice Blank later concurred the same view(AIR 1942 Cal 514). The Patna High Court followed this view in its decision reported in AIR 1973 Pat 352.  The Supreme Court later accepted this as the correct view (AIR 1999 S.C. 1441 & AIR 2004 S.C. 2546)

The full bench of Madras High Court held (ILR 30 Mad 169) that where a transaction is voidable at the instance of a defendant, he can, on this ground, defend a suit wherein the plaintiff seeks to enforce the transaction against him, although the period of limitation for a suit to set aside the transaction has expired..

The Allahabad High Court has held (AIR 1927 All 355) that where in a sale deed the property intended to be sold is by mistake wrongly described, but the Vendee gets into possession of the right property and the Vendor subsequently sues to eject him from such property on the ground of the said property not having been sold to him according to the sale deed, the Vendee can show that the said property was really intended to be conveyed under the deed and that by mistake it was wrongly described in the deed, although a suit by him for rectification of the deed has become time barred.

An intended Vendee entered into possession of a land in part performance of contract with the true owner complying all the requirements of sec. 53-A of the T.P. Act and remain in such possession for 60 years. The true owner then filed a suit against him for declaration of title and recovery of possession. The High Court decreed the suit as the possession of the defendant was all along permissive in character and he did not file any suit in time against the plaintiff for specific performance of contract enforcing him to execute a regular sale deed in his favour conveying title to him thereunder. The supreme Court reversed the finding of the High Court accepting the defendants plea that though such a suit by the defendant has become time-barred, his resistance of possession (without title) is a good defence against plaintiff’s claim (1997 (I) O.L.R.(S.C.)1]. The full bench of Bomaby High Court (AIR 2004 Born 378)later concurred this view.

Where a tenant is dispossessed by the landlord of a portion of the tenanted holding, he can set up such dispossession in his defence in a suit for rent by the landlord although a suit by the tenant for recovery of possession of the dispossessed protion has become time barred(AIR 1926 Pat. 513)

In a suit for redemption of mortgage against a mortgagee in possession, the mortgagee-defendant can claim the mortgage money from the plaintiff although a suit for such money would have been barred by limitation. (AIR 1967 Raj 258)

Although the period of limitation for a suit to set aside a decree obtained by fraud has expired, still then the fraudulent character of the decree can be set up in defence when the decree is sought to be enforced.(I.L.R.27 Cal 11, AIR 1928Cal.810)

Thus the defendant stands in a privileged position than the plaintiff in the setting up his plea in the context of the law of limitation. This is however subject to the accuracy in the drafting of the Supreme Court the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the document in question, the evidence led by the parties in the suit and other attending circumstances. (AIR 1999 S.C. 1441).

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Simultaneous Proceedings against the Borrower and the Guarantor in the DRT is Illegal

The scheme of Indian Contract Act, 1872 on the subject of a Contract of Guarantee may be summarized as follows:

(a) A contract of guarantee is a tripartite agreement which contemplates the principal debtor, the creditor and the surety {Punjab National Bank v. Sri Vikram Cotton Mills, (1970) 1 SCC 60; AIR 1970 SC 1973; (1970) 2 SCR 462; 40 Comp Cas 927}. The purpose of a guarantee being to secure the repayment of a debt, the existence of a recoverable debt is necessary. It is of the essence of a guarantee that there should be someone liable as a principal debtor and the surety undertakes to be liable on his default. If there is no principal debt, there can be no valid guarantee. This was so held by the House of Lords in the Scottish case of Swan v. Bank of Scotland {(1836) 10 Bligh NS 627} decided as early as 1836.

(b) Implied promise to indemnify surety.—In every contract of guarantee there is an implied promise by the principal debtor to indemnify the surety, and the surety is entitled to recover from the principal debtor whatever sum he has rightfully paid under the guarantee (section 145).

(c) Rights of surety on payment or performance.—Where a guaranteed debt has become due, or default of the principal debtor to perform a guaranteed duty has taken place, the surety, upon payment or performance of all that he is liable for, is invested with all the rights which the creditor had against the principal debtor (section 140). A surety is entitled to the benefit of every security which the creditor has against the principal debtor at the time when the contract of suretyship is entered into (section 141).

(d) In essence, ultimately the debt is to be recovered from the principal debtor, either primarily by the creditor or finally by the surety. Certainly, there is no mandate of Contract Act that finally the principal debt is to be recovered from the surety.

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Steps To Surrendering PAN CARD

Step 1:- If you have been allotted an additional Permanent Account Number (PAN) which you wish to voluntarily surrender, you need to visit the Income Tax (I-T) departments website -incometaxindia.gov.in. Click on the icon surrender Duplicate PAN.

Step 2 :- To be doubly sure that your request for surrender has been registered, also write a letter to this effect to the assessing officer under whose jurisdiction you have been filing your returns. The letter must contain details such as your name, contact details, details of the PAN card to be retained, details of the duplicate PAN card(s) which you need to surrender, etc.

Step 3 :- Maintain the acknowledgement copy of the letter that you have filed with the I-T department, stating that you are surrendering your additional PAN. That is sufficient as proof of surrender and no additional confirmation from the I-T authorities is required.

Step 4 :- On receipt of the acknowledgement, there is no need for you to wait for intimation from the income tax department considering that the PAN submitted has now been cancelled by them. The acknowledgment copy of the letter submitted will more than solve the purpose.

Step 5 :- Make sure that you surrender your additional PAN card before December 31, 2006 as there will be a penalty of Rs 10,000 levied per instance for quoting the wrong PAN.

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