Category: News & Updates

The National Payments Corporation of India (“NPCI“) vide its operating circular dated July 5, 2022 (“Circular“) has issued fresh guidelines in relation to collection and usage of geo-tagging data by Unified Payments Interface (“UPI“) applications and third-party service providers. The Circular is issued in addition to the existing customer data collection guidelines of NPCI in respect to UPI transactions and will come into effect from December 1, 2022. The Circular prescribes the following:​

1. Location and geographic details can only be collected by UPI apps with the customer’s consent and the same cannot be made a mandatory requirement.​

2. The customer should be permitted to revoke the consent granted and the UPI apps shall continue to provide its services even when the customer chooses to revoke the consent earlier granted for sharing the location/geographical details.​

3. Where a customer gives consent to collect location or geographic details, the same must be correctly passed to UPI, failing which shall attract strong action from NPCI.​

4. If the customer has not given consent to share any location or geographic details, no UPI apps shall deny/disable its UPI service.​

5. These guidelines shall only apply to domestic UPI transactions and where the customer (payer) is a person or individual who is initiating the transaction.​

The Supreme Court in the case of Devika Singh v. CAT (C.A. No 5308 of 2022) recently held that existence of spouse’s biological children from his prior marriage would not impinge upon the statutory entitlement for grant of maternity leave.  Moreover, the Court in its judgment made observations with respect to persons to whom maternity benefits shall not be denied due to absence of the traditional concept of ‘family’ The Court observed that-​

1. The purpose behind maternity leave and other facilitative measures extended to women are to ensure that they are remain a part of the work force and are not compelled to leave their workplace.​

2. Child birth has to be construed in the context of employment as a natural incident of life and hence, the provisions for maternity leave must be construed in that perspective and be provided to employees. ​

3. The concept of ‘family’ in law and society has undergone a change form the traditional idea that a family consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children. The Court observed that atypical manifestations of the family unit such as single parent household or unmarried partnerships or queer relationships are equally deserving of protection and benefits under the social welfare legislation shall be provided for. Moreover, the legislation shall not be interpreted to a woman’s disadvantage who undertakes the role of motherhood in ways that may not find a place in the popular imagination.  ​

4. The right to reproduction and child rearing as an important facet of a person’s right to privacy, dignity and bodily integrity under Article 21. Moreover, Article 42 and Article 15 enjoins the State to make provisions for securing just and humane conditions of work and for maternity relief. ​

Service Charge can be defined as the fee collected by the service provider for the services and facilities that are being provided by  them. Service charge is usually charged in the tertiary sector of the economy such as in restaurants, tourism, banking, etc. ​

Take on Service Charge:​

As per the ‘Guidelines to prevent unfair trade practices and protection of consumer interest with regard to levy of service charge in hotels and restaurants’ (“Guidelines”) issues by the Central Consumer protection Authority in 2022 stated that a component of service is inherent in provision of food and beverages ordered by a consumer. The charge without express consent of the consumer would amount to unfair trade practice under the Consumer Protection Act, 2019.​

The Guidelines provided that a tip paid by the consumer towards hospitality received by him, is a separate transaction entered into at the customer’s discretion between the consumer and the staff. The decision of paying a tip is after the consumer has had his meal and is at a position to assess the quality of the service provided to him, hence, there is no implied consent of the consumer to pay for the service when he enters the restaurant.  Therefore, the Guidelines stated that the service charge is voluntary in nature.​

Latest Position:​

The Guideline settles the issue on service charge stating that no hotel/restaurant shall add service charge automatically or by default in the bill and shall not impose service charge on the consumer under any other name as well. Further, the Guideline states that the hotels/restaurants shall inform that the charge is voluntary in nature. ​

The Guideline states that no restriction on entry or provision of services based on collection of service charge shall be imposed on consumers.​

Hence, by the clarification on the position of the service charge the bargaining power of the consumers has been restored back.​

The Plaintiff in the matter of Carlsberg Breweries A/S Vs. Tensberg Breweries Industries Pvt. Ltd.& Ors. [CS (COMM) 646/2022] sought an ad-interim injunction against the Defendant, claiming it to having adopted a deceptively similar mark- ‘Tensberg‘. While the Defendant accused Carlsberg of misrepresentation and argued that they had been marketing their products since 2018, so the Plaintiff had prior knowledge of the same, and further, there were several other marks in the market with the suffix “berg”. Thus, with different prefixes, the marks could not be considered to be deceptively similar.​

The Hon’ble Delhi High Court noted that prima facie, marks of both the parties appeared to be similar, both visually and phonetically. Further, there was no doubt regarding the Plaintiff being a prior adopter of its mark and a registered proprietor of the mark “Carlsberg”, while the Defendant had no registration for its alleged mark ‘Tensberg‘.​

The Court held that delay in prosecution of a claim of infringement, cannot be a ground to allow such infringement to continue. The Court further opined that the use of not only a similar mark, but also a similar get-up (Trade dress) of the product, which included the shape of the bottle, a similar crown mark, and the color combinations of the marks on both – the beer bottle and can, indicated the intent of the Defendants to ride upon the reputation and goodwill of the Plaintiff company, thereby, causing confusion and deception in the minds of unwary consumers. ​

Thus, the Court in this case while granting injunction, applied the test of an unwary consumer with imperfect recollection, and remarked that beer bottles and cans are bought in a casual manner, and not with minute scrutiny. The two marks and their trade dress, prima facie appear to be deceptively similar and are likely to deceive and cause confusion. ​

CONCURRENT PUNISHMENT: When the Accused serves all the sentences in respect of two or more offences at the same time.​

CONSECUTIVE PUNISHMENT: When the Accused has to finish serving the sentence for one offence before it starts to serve the sentence for any other offence.

The Hon’ble Supreme Court in its latest decision in the matter of Malkeet Singh Gill v/s The State of Chhattisgarh, affirmed and upheld the following settled principles of criminal jurisprudence:​

• The High Court in a criminal revision against a conviction sentenced by the lower court(s) is not supposed to exercise the jurisdiction same as that of the Appellate Court, since the scope of interference in revision is extremely narrow. The High Court while exercising its revisional jurisdiction cannot sit as a regular Court of appeal and can only deal with the impugned point of law before it.​

• Further, while upholding the decision of the High Court which affirmed the conviction sentence of the Trial and the Appellate Court against the Appellant, however, directing the same to be run concurrently instead of consecutively, the Apex Court held that Section 31 of Cr.P.C. provides for full discretion to the lower courts for passing orders for concurrent punishment in case of conviction for two or more offences. ​

The Karnataka High Court in the recent case of Amit Garg Vs. State of Karnataka held that the criminal law cannot be set into motion for recovery of money paid under a contract, unless the offence of cheating or even criminal breach of trust is established.​

The Petitioner therein had approached the High Court seeking to quash the FIR registered against him by one Mr. Neeraj Kukreja, the Director of M/s Pegasi Spirits Pvt. Ltd., for allegedly supplying the inferior quality of N 95 Masks.​

The Petitioner contended that the entire issue was in the realm of the contract and there was no cheating or dishonest intention at the inception on the part of the Petitioner.​

The Complainant refuted the submissions of the Petitioner by submitting that though the dispute was in the realm of the contract, the dishonest intention of the Petitioner to cheat was right there from the inception, that is when the supply was made, and therefore, the entire consignment could not be put to use due to its poor quality. ​

The bench relying on Section 415 of Indian Penal Code,1860 held, “In the case at hand, finding of poor quality of masks was at a later point in time. This cannot amount to cheating or deception at the inception of the contract since they were supplied after supplying samples. If the complainant could not wait for the samples to be checked by the appropriate laboratories, the offence of cheating cannot be laid against the petitioner.” Hence the application was thereby disposed of. 

The Reserve Bank of India (“RBI”) in its move towards promotion of digital payments, has allowed foreign inward remittances under the Rupee Drawing Arrangement (RDA) into a KYC compliant bank account of the billers (beneficiary) for various bill payments through Bharat Bill Payment System (“BBPS”) via circular dated September 15, 2022. ​

​BBPS was conceptualized by the RBI and run by the National Payments Corporation of India (“NPCI”) for digitized bill payment experience for various bills like electricity, gas, water, DTH, among others.​

The circular from the RBI comes as a relief for the Non-Resident Indians as it will enable them to undertake the bill payment relating to utility, education etc. on behalf of their families and it will also encourage onboarding of various other billers on the BBPS platform.​

​The RBI had earlier permitted the receipt of foreign inward remittances directly into KYC compliant bank accounts of the beneficiaries through electronic mode, such as, NEFT, IMPS, etc. subject to procedure and condition notified by the RBI on April 10, 2014. ​

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The division bench of the Hon’ble Supreme Court of Hon’ble Justices M. R, Shah and Krishna Murari, passed a judgment on September 16, 2022, in the matter of Sudhamayee Pattnaik and Ors. vs. Bibhu Prasad Sahoo and Ors. [Civil Appeal No. 6370 Of 2022], reiterating the position of the law with respect to Order 1 Rule 10 of the Civil Procedure Code, 1908, which provides for the procedure of adding Defendants to an existing suit. 

The division bench held that no Defendant can file an application to implead additional Defendants against the Plaintiff’s wishes as the position of law is well settled that regards the Plaintiff as dominus litus. The only exception to this rule would be if the Court suo motu directs to join any other person not party to the suit for effective decree and/or for proper adjudication as per Order 1 Rule 10 CPC.

The bench also held that non-impleadment of Defendants would be at the risk of the Plaintiff. For instance, as per the facts of this matter, the Defendants had filed a counter-claim for declaration of their right, title and interest over the suit property in question and permanent injunction against the Palintiffs, and in case the counter-claim is allowed, as the Plaintiffs are opposing to implead the subsequent purchasers as party Defendants, thereafter it will not be open for the Plaintiffs to contend that no decree in the counter-claim be passed in absence of the subsequent purchasers.

• In the peculiar facts of the case of Ravi Kumar Tomar v. Newgen Speciality Plastics Ltd., the Appellant being the Ex-Director of the Corporate Debtor/Respondent No. 2 (M/s Royal Polyurethane (India) Pvt. Ltd.) filed an appeal against the order of admission passed by NCLT, New Delhi Bench, in the Petition filed under Section 9 of the I&B Code by M/s Newgen Speciality Plastic Ltd. (Operational Creditor/Respondent No. 1).

• The Corporate Debtor had placed a purchase order for supply of goods for a sum of Rs. 4,67,98,086/- and paid an advance sum of Rs. 29,51,011/- Allegedly the Operational Creditor supplied the said goods and issued various invoices in respect thereof. The Corporate Debtor accepted the invoices and made part payments and no dispute was raised about the same. Post-delivery of the last order, the Corporate Debtor defaulted payment towards the same and therefore the Operational Creditor issued a notice under section 8 of the I&B Code calling upon the Corporate Debtor to pay a sum of Rs. 27,15,669/-.The Appellant in its reply objected to the said claim for the reason that an advance payment of Rs. 29,51,011/- was made to the Operational Creditor and the goods worth Rs. 27,15,699.11/- only, were supplied by the Operational Creditor under the invoices. Therefore, after adjusting the advance amount of Rs. 29,51,011/- against the invoice of Rs. 27,15,699.11, the Operational Creditor was liable to refund Rs. 2,35,341.89/- but instead of the same, the Operational Creditor sent the said notice alleging outstanding debt of Rs. 27,15,669/- against the Corporate Debtor.

• Admittedly, before all the goods under the purchase order could have been supplied by the Operational Creditor, the CIRP proceedings were initiated against the Operational Creditor in a separate proceeding. According to the Appellant the advance payment made by the Corporate Debtor to the Operational Creditor for the supply of goods under the same purchase order could not be invalidated by mere initiation of CIRP against the Operational Creditor.

• In view of the above facts and circumstances, the Hon’ble Appellate Tribunal observed and held that post initiation of CIRP against the Operational Creditor, the supplies made by it were for creation of liquidity in order to run the Company and the same couldn’t be adjusted with the advance given before the initiation of CIRP against it since that would be transfer of the asset of the Corporate Debtor on account of an antecedent debt to a creditor (Respondent No. 2/Operational Creditor) which shall be a preferential transaction, that has been frowned upon by the NCLAT in the case of Binani Industries Ltd. Vs. Bank of Baroda & Anr. Moreover, once the moratorium kicks in it does not allow to recover any amount from the Corporate Debtor, nor the Corporate Debtor can appropriate any amount towards its own dues. In view thereof, the Appeal of the Appellant in respect of the Corporate Debtor (Respondent No. 2) was dismissed.