Times Internet Ltd. v. M/S Belize Domain Whoise Service Ltd. and Ors.

Citations – CS(OS) No. 1289 of 2008

Date of the Judgement – 10/11/2010

INTRODUCTION 

Cybersquatting can be defined as a process that involves registering, using or selling a particular domain name in order to gain profit from Trademark belonging to someone else. Cyber squatting depends upon the Goodwill associated with other’s Trademark. It is generally a practice of buying of domain names resembling the existing business with the intent to sell the names for profit to that business.

The Facts of the case of Times Internet Ltd. v. M/S Belize Domain Whoise Service Ltd. and ors., Decided on 10th November 2010 by the Delhi High Court is very close to the instance of Cybersquatting. In this case, the Court has reaffirmed the passing off principle. Passing off is the common law tort, used to enforce unregistered trademark rights. The law of Passing off prevents any person from misrepresenting his goods and services as that of another.  

FACTS OF THE CASE

1) The portal named “indiatimes.com” was started by M/s Bennett Coleman and Co. Ltd., and this company offers a wide range of services. The Internet business was assigned by the M/s Bennett Coleman and Co. Ltd. to the plaintiff company in the year 2000. The domain name of the “indiatimes.com” is registered under Network Solutions Inc since 1996.

2) The Trademark “travel.indiatimes.com” was registered in the name of the plaintiff company in June 2020. This service is very popular and provides huge business to the plaintiff company making the business of Rs. 1,335,834,443/- the year preceding the filing of this suit.

3) The defendant was the company named M/s Belize Domain Whoise Service Ltd. Co., which has registered the domain of “indiatimestravel.com” which was very similar to the registered Trademark of the “travel.indiatimes.com” belonging to the plaintiff company and is also deceptively similar to the domain of the plaintiff company “indiatimes.com.”

4) The defendant’s domain was not being used to carry out any real travel services or business but was merely earning profits by taking sponsored links. The plaintiff company claimed that this domain was created to use the popularity and Goodwill of the “indiatimes.com” and earn profits.

ISSUES:

1) Whether the domain registered by the defendant company was to earn profits from the popularity of the Plaintiff’s company and, thus, makes the company liable for passing off?

2) Whether the domain name can be subjected to the legal norms applicable to Trademarks?

REMEDIES SOUGHT BY THE PLAINTIFF

1) The Plaintiff has sought an injunction restraining the defendant from using the domain “indiatimestravel.com” in any manner what so ever.

2) The Plaintiff has also sought injunction seeking direction to transfer domain “indiatimestravel.com” to the plaintiff company.

3) Plaintiff has sought damages of Rs. 20 lakh from the defendants.

4) They also sought delivery of all the documents in possession bearing the name “indiatimestravel.com” or any other deceptively similar mark.

DECISION OF THE COURT:

Justice V.K. Jain referred to the previous case of Delhi High Court CS(OS) No.1108/2006, decided on 29th October 2010, wherein the Court held that it is the duty of the Court to protect the Trademark and Goodwill of the business earned after years of business. No one can imitate or use the name or trademark / similar name or Trademark to earn profits and jeopardize the original business. Even if the person using the name or Trademark is yet to commence the business, the fact that he has used the name is enough to prove his dishonest intentions. This Court held that these observations were made in the case of registered trademarks, but they will also apply in the case of passing off.

Further, in paragraph 11, the Court has cited the case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.[1], wherein it was held that the decisions of the Supreme Court have in the last four decades clearly laid down what has to be in the cases of passing off is similar to competing marks and to determine whether there was a likelihood of deception.

The Court has also referred to the case of Satyam Infoway Ltd. v. Sifynet Solutions Pvt. Ltd.[2], which has similar facts. In the Satyam, Case court held that a domain name is an instrument of commercial enterprise because of two reasons. Firstly a domain helps the consumer in finding the website they are looking for, and secondly, it creates a separate identity for the business itself or its goods and services and also specifies the corresponding location on the internet. Because of this Court they were stated that it is necessary for the domain name to be unique and peculiar to maintain the exclusive identity of the business. The Court held that the Trademark Act, 1999 is not extraterritorial and cannot provide sufficient protection to the domain, as it can be accessed by anyone from any part of the world. However, the legal protection in relation to the passing off will be provided to the extent possible.

 The Delhi High Court, thus, held that the plaintiff company owned the domain “indiatimes.com” way before the defendant created the domain of “indiatimestravel.com.” “India times” was the component that would definitely create deception of the plaintiff company, and the defendant could not justify the use of the same. Instead, it was merely to encash on the Plaintiff’s reputation. This also jeopardizes the reputation of the Plaintiff if the goods and services advertised on the defendant’s domain are of poor quality. The defendant didn’t appear before the Court and contest the claim, and thus, Court was of the opinion that defendant’s intentions were mala fide and they wanted to take undue advantage of the expenditure incurred by the plaintiff company and its predecessors to earn the existing reputation of the “Indiatimes”.  Thus, the Court decided as;

1) The Plaintiff to be the sole owner of “indiatimes”

2) The defendant was not entitled to continue the domain name of “indiatimestravel.com”

3) The defendant was also directed to transfer the domain of “indiatimestravel.com” to the plaintiff company with four weeks of the copy of the judgment being served upon it.

4) The Plaintiff has also sought damages; however, they didn’t put forward any evidence to prove the damage to it, and they also didn’t advance any argument in this behalf, and thus, no damages were awarded.

CONCLUSION AND ANALYSIS

Passing off is a Common Law principle that prevents anyone from misrepresenting their goods and services to be of another person. The essentials of passing off are:

1) There has to be a misrepresentation of defendants goods or services as of Plaintiff,  

2) There has to be Goodwill or reputation attached to goods and services provided by the Plaintiff,

3) And the act of misrepresentation has caused harm or loss to the Plaintiff.[3]

 In this case, by registering a domain with deceptively similar name the defendant has fulfilled the all criteria to constitute the offence of Passing off. 

In the case of Kaviraj Pandit Durga Dutt Sharma v. Navratna Pharmaceuticals[4], the difference between infringement of Trademark and passing off were given by the Supreme Court. The Court held that passing off applies in the cases wherein no Trademark is registered. In the present case a Trademark of “Travel.Indiatimes.com” was registered in India, however the domain created by the defendant could be accessed from anywhere in the world. The Trademark Act, 1999 cannot be sufficient to protect the domain of the Plaintiff and thus, the principle of Passing off was applied.

This case has applied the principle of passing off. This case has been used as a precedent by the Delhi High Court in the case of the plaintiff company itself Times S Internet Ltd. v. Time Broad Band Services Pvt. Ltd.[5], which was decided in the year 2015.


Pragya Jain (Author) is a third year law student from Amity University, Kolkata.


[1]2001 (5) SCC 573 (2001)

[2]2004 (28) PTC 566 (SC) (2004) .

[3]Rickett and Colman Ltd. v. Borden Inc., [1990] 1All E.R. 873 (1990).

[4]1965 AIR 980 (1965).

[5]CS(OS) 2004/2006 (2015). 

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

Carlill v. Smoke Balls Co.

Citation : [1893] 1 QB 256

Bench: Lindley LJ, Bowen LJ, and AL Smith LJ

Date of Judgement: 7 December 1892

Fact:

In this case, a company named Carbolic Smoke Ball Co. released an advertisement, to pay 100 pounds to anyone who suffers from influenza, cold, or any other related disease, and that claims after taking the ball as per the printed directions disease will be diagnosed. To make it more serious, they added that “1000 pounds are deposited with the Alliance Bank showing our sincerity in the manner.” The plaintiff, suffering from influenza, used the ball according to the prescribed manner but her disease was not diagnosed. She filed a suit to claim the reward.

Issue raised : 

1. Whether the language used in the advertisement regarding the offer to pay 100 pounds was really an express promise or rather it was merely a sales puff?

Judgement:

It was held that the plaintiff was entitled to claim the promised amount. The defendant contended that there was no intention to create any legal relationship, and the advertisement was simply a sales puff.

Justice Bowen LJ observed that the advertisement says that 1000 pounds are deposited in the bank for that purpose. So, It cannot be said that the statement of giving a reward of 100 pounds is mere a sale puff and not intended to form a legal relationship. He also said that when an offer is made world at large, can ripen into a contract if anybody who comes forward and performs the conditions. 

The ratio decidendi of this case was that the advertisement published by the Carbolic Smoke Ball company was a unilateral contract, and whoever comes forward and performs the condition of the proposal, converts the offer into a binding contract.

Personal Opinion:

This is a landmark case of a general offer. By this verdict, the court provides a clear picture of a situation which occurs in our daily life. It describes and clears the importance of the acceptance to the offer. Through this decision, we can differentiate between a sales puff and actual offer or proposal as the court has clearly differentiated both. 

Tukaram and Anr. v. State of Maharashtra

Citations – 1979 AIR 185, 1979 SCR (1) 810

Date of Judgement – 15/09/1978

INTRODUCTION

The case in hand is about the rape of a 16-year-old girl named Mathura. Through this case analysis, I intend to highlight the concerns and issues that have not been dealt with in the original judgement given by the Supreme Court. Firstly, I’ll be posing some critical questions with the help of the analysis provided by Dr. Upendra Baxi and others in their open letter to the Chief Justice of India, which the Supreme Court judgement miserably fails to answer in its judgement. Asking these questions is essential to fully comprehend the significant issues which have not been dealt with and contemplate the path the judiciary takes to dispense its so-called textual idea of ‘justice.’ Next, I will present my arguments, which will analyze the various segments of the present case’s judgement, which are distorted and demand explanation. My analysis of the case will include aspects like ‘authority,’ ‘reliability of the victim’s testimony,’ ‘scope of criminal law,’ ‘gender discrimination based on patriarchal norms,’ difference between ‘consent and submission’ and lastly, ‘structure and agency’ followed by the conclusion.

To start with, I firmly believe that the Supreme Court has not provided any valid or consistent reasons to justify its stand about why the High Court’s reasoning lacks conviction for rape. There are many questions which remain unanswered, like why Mathura, a 14-16-year-old, was in the police station in the “dead hour of the night”; and the Supreme Court raised no concerns as to why she was asked to remain in the police station even after her statement was recorded and her relatives were asked to leave. Additionally, the fact that the lights were switched off in the police station when Mathura was inside, and the doors were shut is not considered.

According to the Supreme Court, the absence of physical marks on her body and no screaming connote sexual intercourse in the police station. However, there is not one mention in the judgement that condemns the use of the police station as a place for submission to sexual intercourse. The Supreme Court, while describing the facts of the case, acknowledges that “Tukaram was seated in a cot nearby” and that he was too intoxicated to rape Mathura. Nonetheless, the fact that Tukaram, the head constable, decided to keep mum and not take a single step in furtherance of protecting Mathura from Ganpat and him being intoxicated in the police station, is not considered material enough to be discussed and criticized in the judgement.

I share my opinion with Upendra Baxi and others in their Open letter to India’s Chief Justice of India[1] on some points. For instance, if an inability to cry out for help and raise the alarm was equivalent to having consensual intercourse, what would be the Supreme Court’s reaction and reasoning if the victim were dumb or gagged?’ The Court stoops so low as to expect Mathura to have marks of physical injury over her body as a ‘visible proof’ of all the sexual harassment she went through. Absence of such marks is henceforth equated to absence of stiff resistance, by the Court, and a hasty conclusion is drawn that Mathura was a person of easy virtue due to her liaison with her lover, accepting the assertion made by the Sessions Judge that Mathura was “habituated to sexual intercourse.” The whole incident of rape narrated by Mathura is an impossible event. Thus, instead of questioning the accused, Mathura herself is suspected, it is her morality and virtue, which is doubted. This shows how a woman’s dignity is accorded a basis through certain pre-defined and desirable standards of conduct established by the society.

Argument I- The notion of ‘authority.’

Authority, in its simplest form, means dominance, which is coupled with ‘fear.’ Fear is something that makes a person turn into a ‘subject’ or rather a ‘victim.’ In the present case, the sense of authority exercised by the two policemen was indeed very gruesome. It was more than enough to produce fear in the mind of Mathura, such that her will or voluntariness got diminished to mere compliance. The act of calling Mathura to the police station in the “dead hour of the night” is enough to instill a sense of fear arising from an authority in the mind of the victim of such a grotesque offense of ‘rape’. Thus, a parallel can be drawn with the case of Nandini Satpathy.[2] It was established that “According to section 160(1) of Criminal Procedure Code, a woman shall not be required to attend police investigation at any other place than her residence. The Court then opined that the very act of directing a woman to come to the police station in violation of section 160(1) CrPC might make for tension and negate voluntariness”. Here it can thus be inferred that the Indian Supreme Court puerilely expects a young girl aged 14-16 years to be fearless, have absolutely no fear of authority, and thus scream and fight two well-built, sturdy policemen when forced into having intercourse.

Argument II- The Court’s reliance on the ‘testimony of the victim.’

The whole judgement consists of combinations of some offensive words such as describing the rape as a “story,” “tissue of lies,” “habituated to sexual intercourse.” Yet, the most disturbing one – “Mathura was a person of easy virtue.” The tone adopted by Justice Koshal and his line of reasoning to conclude appear to be quite insensitive not only towards Mathura but to all young girls in general. The point of significance here is that the focus of the judge stands completely deviated, from evaluating the commission of rape to questioning the sanctity and morality of the victim herself.

Argument III- The ‘scope of criminal law’ in determining the guilt-

Indian law has failed indeed to realize the real essence of the doctrine of ‘burden of proof.’ According to this doctrine, the burden of proof is on the victim to convince the Court that the said offense has been committed to them. However, in this case, the Court failed miserably to comply with this doctrine by leading on both the accused persons. The Court labelled the 16-year-old victim as a promiscuous girl who liked engaging in sexual activities, thereby undermining the difference between sexual intercourse versus rape. While the former is a consensual activity, the latter does not involve consent. Therefore, it can be said that the Court engaged in ‘victim-blaming’ instead of determining the guilt of the accused.

Argument IV- Gender discrimination based on patriarchal norms

The laws of our country are formulated such that it is always the woman, who’s sanctity and purity are doubted. These laws are such because of them being formed at the time of extremely regressive and patriarchal times. Hence, it can be ironically seen that the presence of semen marks on Ganpat’s trousers and his sexual habits are considered of little significance by the Supreme Court. It is dreadful when one reflects on the verdict of Justice Koshal, which appears to have been influenced by a strong taboo against pre-marital sex almost as if it provides a permit to all men, including the policemen to commit rape on young and innocent girls.

Argument V- The difference between ‘consent and submission.’

It appears from the facts stated by the Supreme Court and its holding that Mathura had submitted to the rape as there was no stiff resistance. Therefore, the policemen were not found guilty of rape. Surprisingly, Justice Koshal has focused entirely on Section 375 (3) of IPC, stating that the woman passively submits only when her “consent has been obtained by putting her in fear of death or hurt.” The reasoning and the conclusion of the Court in acquitting the two appellants revolve only around this clause, and it pays no heed to the second clause of Section 375 of the IPC that deals with passive submission, where the sexual intercourse is “without consent” of the woman. The Court fails to appreciate the difference between “consent” and “submission.” The core distinction here is that consent involves submission, but the contrary is not always true.

Moreover, the absence of resistance is not equivalent to or indicative of consent. Even if Ganpat were to be charged under the third component of Section 375, the question of whether there was “consent” remains relevant and crucial. Therefore, the argument put forth by the Supreme Court that only “fear of death or hurt” is capable of vitiating consent for sexual intercourse is ‘flawed.’ Thus, it becomes crystal clear to conclude that according to the facts of this case, there was no consent from Mathura but merely a ‘submission.’ 

Additionally, it is somewhat problematic for the Court to expect that a 16-year-old child, who is fending for herself, by doing manual labor, instead of getting the privilege of education, is capable of understanding the concept of ‘consent.’ The wording of the judgement is disturbing when Mathura’s struggle (evidenced in the form of the nail and bite marks on both the accused) is considered a valid consent merely because she could not say no. The Supreme Court could have interpreted the word “consent” better and in a broader term while giving its verdict.

Argument VI- ‘Structure and agency’ as construed within the society –

Since the establishment, the Indian law portrays the position of a rape victim within the society as someone helpless and vulnerable. This powerful dictum is extremely flawed, vile, and repugnant. It not only degrade the status of women in the society but also shows the typical patriarchal view our lawmakers adopt in today’s times.

 The ‘moral aspect’ of the case has been completely sidelined by Justice Kaushal, by condemning the constitutional rights of a woman. The whole idea of ‘structure and agency’ jumps in here. What agency does a woman exercise in such a situation? The societal structure and framework of suppressing and hiding a rape victim from others, doubting if that victim will be able to get married or not, keeping her locked at home, showing pity and sympathy towards her, all contribute towards the diminishing or rather extinct agency of women in the society. The Supreme Court pays no heed at all to the factors associated with the tender aged victim. Mathura hails from a poor socio-economic status. She lacks the knowledge of legal rights and the access to legal services[3] in such a case, her autonomy in exercising her agency is very bleak. 

CONCLUSION

Considering the several factors that are not considered in the Supreme Court judgement, I agree with the verdict of Bombay High Court because I believe that the arguments presented by Justice Koshal are insufficient and unsubstantial to acquit the two appellants. Mathura, a girl between the age of 14-16 years helplessly surrendered her body to Ganpat, who raped her. This amounts to passive submission under section 375 (2) of the IPC, which is not equivalent to consensual sex. This judgement completely degrades the moral rights of a woman. It shows how the Indian law miserably fails to sympathize with the deep agony of all such women, who, like Mathura, have been sexually harassed and raped.

While this judgement was one of the many unfortunate and disturbing precedents, it is essential to realize that reasoning such as the one adopted in this case results from severe flaws in the understanding the root cause behind the commission of crimes such as rape or sexual harassment. Sexual harassment of women results from the ‘sexual objectification’ of women. Objectification reduces women to their biology as if there is nothing to a woman other than her sex (or her body). Sexual objectification can be attributed to the most challenging and ancient social structure, i.e., patriarchy. It would be an understatement to assume that only men are responsible for patriarchy. Women, too, partake in it by abiding gender-roles and regressive notions such as ‘purity’ and ‘virginity.’ Thus, the need of the hour is to detect and destroy patriarchy from our mindsets. In doing so, we would be doing a service to ourselves and our society and our Criminal Justice system that needs to approach Gender-based crimes through the lens of Reformative justice. 


Kanak Mishra (Author) is a Penultimate Year student at Jindal Global Law School, Sonipat.


[1]Upendra Baxi et al., An Open Letter to the Chief Justice of India (Jun. 28, 2020), https://pldindia.org/wp-content/uploads/2013/03/Open-Letter-to-CJI-in-the-Mathura-Rape-Case.pdf.

[2]Nandini Satpathy v. P.L. Dani and Anr., 2 SCC 424 (1978).

[3]Nandini Satpathy v. P.L. Dani and Anr., 2 SCC 424 (1978).

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

Powell v. Lee

“Acceptance is not effective unless it is communicated by the offeree or by a duly authorised agent.”

Citation: – (1908) 99 LT 284 

Bench: – Kings Bench Division 

Facts of the case: –

Powell referred to as the plaintiff applied for the post of headmastership of a school. The manager hereby referred to as the appointing authority passed a resolution of appointing him; however, no formal acceptance was conveyed to him. One of the board members overheard the discussion and, in his individual capacity, informed the same to the plaintiff.

However, later the manager cancelled the resolution, aggrieved by the decision of the authority plaintiff sued the school for breach of contract.      

Issue Raised: –

  1. Whether there was a breach of contract?

Judgment: –

The Hon’ble Court held that there was no breach of contract between the plaintiff and the defendant as the acceptance was never conveyed by someone authorized by the school board; The Hon’ble Court further stated that in order to render a valid acceptance the same must be conveyed to the offeror by the offeree or someone authorized on his behalf. The Hon’ble Court opined, there must be notified of acceptance from the contracting party in some way information by an unauthorized person will not form a valid contract. 

Personal Opinion: –

In case of considering revocation of the contract, the authorization must be checked; the natural principle which should be followed is acceptance must come from a person who has the authority to accept.

Tweddle v. Atkinson

Citation: – [1861] EWHC J57 (QB); (1861) 1 B&S 393 

Date of Judgement: – 7th June 1861

Bench: – Wightman J, Crompton J, Blackburn J 

“A person who has not paid consideration; has no claim on the contract.”

Facts of the Case:

John Tweddle and William Guy mutually decided in writing to pay a sum of (£100 and £200, respectively) to Tweddle’s son William who was about to engage with Miss Guy. Unfortunately, before the fulfilment of the contract, the father of the bride died, and circumstantially, the father of the son died before he could solve the argument between them. As a result of which the groom brought a legal suit against the legal executor of the will made between the parties for its non-fulfillment.  

Issue Raised:

  1. Whether the groom is entitled to take the stand for the enforcement of the contract?
  2. Whether the Doctrine of Privity of Contract is applicable in this case?

Judgment:

The court, after analyzing the fact and the issue raised by the groom, held that the groom is not entitled to claim for the enforcement of the contract. The court said that the groom was neither a party to the contract nor has any consideration in the matter of the promise made by the father’s of the bride; He was solely a third party to the whole agreement entered into by both of the fathers. 

The Court applied the Doctrine of Privity of contract in this regard which clearly specifies that no third party to a contract has the title to claim for its fulfilment in the court of law as being a stranger to the contract; the groom has no legal footing for the enforcement of the contract entered by the other party. Thus, after observing the Doctrine of Privity of Contract in the whole matter court found in favour of the executor of the will.

Personal Opinion: – 

The problem arising out of the Privity of contract is it acts as a bar to the fulfilment of the personal choices of an individual; thus to avoid such complexion following may be adopted for the same:

1. The court should have given thought about the personal choices that both of the fathers had to contribute to the newly married couples in their new life.

2. Being a bar to the personal choices of any individuals, it narrows the definition of Privity of contract.

Madhub Chunder v. Rajcoomar Doss

Citation- (1874) Beng LR 76

Bench- Sir Richard Couch C.J

Facts

In this case, the Defendant faced competition from Plaintiff due to which he incurred a heavy loss. Consequently, both parties entered into an agreement. The terms of the contract state that if the Plaintiff closes his business then the Defendant would pay him the money that Madub Chunder advanced to his workers. Later on, Rajcoomar refused to pay the money as promised in the contract. Both the parties of the present case were involved in businesses established in Calcutta.

As a result, the Plaintiff filed a lawsuit to claim the amount from the Defendant.

Issues

  1. Whether Plaintiff’s lawsuit against the defendant is maintainable?
  2. Whether the Plaintiff was entitled to receive the amount as promised?

Judgement

Sir Richard Couch C.J while referring to the case of Mitchel v. Reynolds laid a distinction between partial and absolute restraints of the trade. He stated that any contract which falls within the ambit of Section 27 of ICA is void unless certain exceptions. 

He also asserted that “The words “restrained from exercising a lawful profession, trade or business” do not mean an absolute restriction and are intended to apply to a partial restriction, a restriction limited to someplace.” 

Further, he cited Section 28 of the Indian Contract Act that has the word ‘absolutely’, proving that the intention of Section 27 is only partial restraint but not an absolute restraint. The agreement entered by both parties in the present case is a complete restraint of trade making it void and not enforceable.

Personal Opinion:

The landmark ruling of the present case protects fair competition. It also broadly elucidated the scope of Section 27 of the Indian Contract act. The doctrine of Restraint of Trade was introduced in India through this judgement. It cleared all the uncertainties and confusion that may arise from the doctrine. 

(By – M. Soujanya)

Bhagwandas Goverdhandas Kedia vs. Girdharilal Parshottamdas & Co. & Ors.

Citation: – 1966 AIR 543 1966 SCR (1) 656

Date of Judgment: – 30/08/1965

Bench: – SHAH, J.C, WANCHOO, K.N, HIDAYATULLAH, M. 

Facts of the Case: – 

Bhagwandas Goverdhandas Kedia, the respondent, came in contract with M/s Girdharilal Parshottamdas & co, the plaintiff, via a telephonic line to supply cotton seed cakes; however, the respondent failed to supply the goods this resulted to the filing of the case in city civil court of Ahmedabad.

The respondent argued that Ahmedabad Civil Court does not have jurisdiction over the matter; however, it was held that City Civil Court had jurisdiction over the matter as the offeror informed about the offer to offeree in Ahmedabad where the contract was made; further, a revision application was filed in Gujarat High Court which was rejected therein finally a special leave petition was filed in the Hon’ble Supreme Court.        

Issue Raised: – 

1. Whether the conversation resulted in contract at Khamgaon or Ahmadabad and did the Ahmedabad City Civil Court had jurisdiction over the matter? 

Judgment: –  

A majority of Judges relied on the English law laid down in the Entores case and saw no reason to extend the post office rule (laid down Adams Case) to telephonic communication. The court stated that the language of the Contract Act cannot be completely ignored. Saha, J stated that when acceptance of the offer was intimated by the offeror the contract becomes complete. The Hon’ble Supreme Court stated that trail court was correct and the decision exercised was rightfully within the jurisdiction of the City Civil court thereby the petition was dismissed with costs.

Personal Opinion: –

The Case has widened the scope of communication of offer since when the law was drafted the legislators have not contemplated telephone, wireless, early bird. When the words of acceptance were spoken in a telephone; they were put into a course of transmission to the offeror and are beyond the power of the acceptor. 

Also, the context of jurisdiction is well explained by the Honorable Court and the said order can be used as mutatis mutandis in a similar situation matrix.  

Kedarnath Bhattacharji v. Gorie Mahomed

Citation- (1887) ILR 14 Cal 64

Date of Judgement- 26 November 1886

Bench – W C Petheram, Beverley

“When at the desire of the promisor, promisee does something then it is a valid consideration under section 2(d) of the ICA.”

Facts:

A Town Hall was planned to build in Howrah. Based on it, all the subscriptions, funds, and interested persons came up for the construction. Municipal Commissioner of Howrah, the Plaintiff entered into an agreement with the contractor and supplied necessary information of the plans.

Later on, with an upswing of subscriptions and plans, there was a rise in the cost of construction making it from Rs.20,000 to Rs.40,000. The defendant made a subscription to pay Rs. 100 for the construction of Town Hall. However, he refused to pay the amount. The Plaintiff commenced an action to claim the amount.

Issues:

  1. Whether the lawsuit initiated by the Plaintiff and all other interested, is maintainable?
  2. Whether the Defendant is liable to pay the amount?

Judgement:

In an ordinary situation, if somebody puts his name for a subscription for a charitable object, it cannot be recovered, as there is no consideration.

However, in this particular case, persons subscribing knew the purpose for which the money was applied and was also aware that on the account of their subscription, the plaintiff entered into the contract. The court considered this a perfectly valid contract and with good consideration.

The Court held that even if the defendant does not benefit from the promise he made for a charitable purpose, he is liable to pay the amount. He was responsible for his promise. A promise once made cannot be taken back after its commencement. It reaffirmed the rule of law by stating that, “Any act done at the will of the promisor’s wish is taken as the fulfillment of consideration of a contract.

Personal Opinion:

This case sets a substantial example that a promisor cannot escape liability from a promise once made. He has to perform obligations under the contract. A consideration, which is an essential element of a contract has to be performed by both parties. The court, with the present case, reaffirmed the importance of promise and consideration.

(By – M. Soujanya)

Mohori Bibi v. Dharmodas Ghosh

Citation– 30 M.I.A 114

Date of Judgement- 04 March 1903

Bench- Lord Macnaughten, Lord Davey, Lord Lindley, Sir Ford North, Sir A. Scoble, and Sir A. Wilson

“This is a famed & benchmark judgement concerning the minor’s capacity to enter into a contract.”

Facts:

The Respondent, who was a minor, owned immovable property, executed mortgage of his property for Rs.20,000 at 12% interest rate per year in favour of Brahmo Dutt, a money lender. 

Though the Attorney of Brahmo Dutt, Kedar Nath, who executed the entire transaction, was completely aware of the incompetency of the Respondent, lent money to the minor. During the agreement, the mother of the Respondent informed Kedar Nath about Dharmodas’s minority and his incapacity to enter into a contract. 

Consequently, Dharmodas and his mother filed a lawsuit to get the mortgage declared as void.

The lower court held in favour of minor. Later, Brahmo Dutt died, and the further appeal was initiated by his representative, Mohori Bibi.

Issues:

  1. Whether the deed was void under section 2, 10[5], 11[6], of Indian Contract Act, 1872 or not?
  2. Whether the executed mortgage was voidable or not?
  3. Whether the money advanced to the defendant must be returned?

Judgement:

According to the verdict of Trial Court, such a mortgage deed or contract that was commenced between the plaintiff and the defendant was void as it was accomplished by the person who was an infant at the time of execution of the mortgage. An appeal was filled in the Calcutta High Court, and it was dismissed. Later, the appeal was made in Privy Council, and the Privy Council also dismissed the appeal and held:

  • Any kind of contract with a minor or infant is void/ void ab-initio (void from beginning).
  • Since minor was incompetent to make such mortgage hence the contact such made or commenced shall also be void and id not valid in the eyes of the law.
  • The minor i.e., Dahrmodas Gosh, cannot be forced to give back the amount of money that was advanced to him because he was not bound by the promise that was executed in a contract.

Personal Opinion:

Prior to this case, there was a lot of confusion regarding contracts with minors. Generally, minors are incapable of understanding the consequences of an agreement they enter into. Many would deceive and take unfair advantage of them. This historical case provided a protection shield to the minors and sets a precedent. It also cleared any ambiguity that may arise from the minor’s agreement. 

(By – M. Soujanya)

Woolmington vs. DPP

Citation: [1935] UKHL J0405-1

Date of Judgement: Friday 5 April 1935

Bench ( House of Lords): Lord Hewart (L.C.J.), Lord Atkin, Lord Tomlin, and Lord Wright.

Facts:

Woolmington’s Case is pre-eminent as far as the burden of proof is concerned. It is said that “the presumption of innocence is like a golden thread in the Criminal Justice System.” 

In this case, Woolmington a 21-year-old farmer from Dorset married Kathleen Woolmington.  On November 22, 1934, Kathleen left for her mother’s house, leaving Woolmington. To get his wife back, Woolmington stole a gun and went to his wife’s house 

In his way, he tried to threaten his wife by saying that he will kill himself, fortuitously he shot his wife, and she died on the spot.

Issue:

1) Whether proving beyond a reasonable doubt is rooted in the Presumption of Innocence?

2) How does the defence of alibi give rise to reasonable doubt?

Held – Swift J. along with other juries held that the onus to prove not guilty should be on the shoulders of the accused, however when Woolmington appealed, Avory J. Stated that Prosecution has to prove that the accused is guilty or not relying on Foster’s Crown Law.

This resulted in the acquittal of Woolmington. 

Personal Opinion: – 

To constitute a Crime, Mens Rea and Actus Reus both are required. In this case, Woolmington claimed that he did not mean to kill his wife rather he was just trying to threaten her at that time and accidentally he shot her. In my view, the decision by Avory J. was appropriately given as the onus always lies with the prosecution to prove beyond a reasonable doubt.

Case analysis by – Sanyogita