Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 11.09.2026
Delhi High Court Sets Aside Refusal of βHEALTHSKOOLβ Trademark; Holds Suggestive Marks Are Inherently Distinctive and Registrable
This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .
The Delhi High Court has set aside an order of the Trade Marks Registry refusing registration of the mark βHEALTHSKOOLβ for medical and allied products in Class 10, holding that the Senior Examiner had applied an incorrect legal standard while examining the distinctiveness of the mark.
Justice Prathiba M. Singh allowed the appeal filed by Disruptive Health Solutions Private Limited under Section 91 of the Trade Marks Act, 1999 and directed the Registrar of Trade Marks to proceed with advertisement of the mark, subject to a disclaimer that the proprietor would have no exclusive rights over the word βHealthβ independently.
Trademark Registry Refused βHEALTHSKOOLβ as Descriptive
The dispute arose from Trade Mark Application No. 3942420, filed for the word mark βHEALTHSKOOLβ on a βproposed to be usedβ basis in Class 10.
The application covered products including bandages, condoms, surgical, medical, dental and veterinary apparatus and instruments, artificial limbs, orthopaedic articles, suture materials and other medical products.
The Senior Examiner rejected the application under Section 9(1)(b) of the Trade Marks Act, reasoning that βHEALTHSKOOLβ indicated the purpose or use of the goods and was therefore descriptive.
Appellant Already Held βHEALTHSKOOLβ Registrations in Other Classes
Before the High Court, Disruptive Health Solutions pointed out that βHEALTHSKOOLβ had been adopted in 2015 for medicinal and other products and e-pharmacy activities.
The company already held registrations for the mark in Classes 3, 5 and 44, including both word and logo registrations. The Registrar’s counsel also confirmed before the Court that registrations for the same mark had been granted in other classes.
The Court further noted that the Registry’s examination report had not cited any identical or deceptively similar trademark. The only objection raised against the application was under Section 9(1)(b).
Delhi High Court Explains βSpectrum of Distinctivenessβ
The High Court found that the Senior Examiner had βerred in lawβ in applying the standard for registration of trademarks.
The Court explained that trademarks broadly fall across a spectrum comprising arbitrary/fanciful/invented marks, suggestive marks, descriptive marks and generic marks.
Relying on Bata India Limited v. Chawla Boot House, (2019) 259 DLT 292, the Court reiterated the spectrum of trademark distinctiveness:
While generic expressions enjoy the least distinctiveness and descriptive marks generally require secondary meaning, suggestive marks are inherently distinctive and do not require proof of secondary meaning.
How to Distinguish a Suggestive Mark From a Descriptive Mark
The judgment provides an important test for determining whether a mark is descriptive or merely suggestive.
Referring to Bata India, the Court noted that the inquiry can involve two considerations: the degree of imagination required to connect the mark with the product, and the competitor’s need to use the mark.
The Court also relied on the Bombay High Court’s judgment in People Interactive (India) Private Limited v. Vivek Pahwa, 2016 (68) PTC 225 (Bom), which explains that suggestive words merely hint at a feature or speciality of the goods and require the consumer to make a mental connection between the expression and the product. Such marks do not require proof of secondary meaning before registration.
Descriptive Element Does Not Automatically Make Entire Mark Unregistrable
The High Court further clarified that a mark can obtain protection either because it is inherently distinctive or because it has acquired distinctiveness through secondary meaning.
Importantly, the Court held that merely because some portion of a trademark has a reference or indication concerning the goods or services, the entire mark cannot automatically be rejected.
The Registry must examine the mark on its merits, the extent of its use and other registrations held by the applicant. The Court also recognised that a trademark owner is entitled to expand into additional goods and services as a natural consequence of business expansion.
βHEALTHSKOOLβ Distinctive Enough to Proceed for Advertisement
Applying these principles, the Court noted that βHEALTHSKOOLβ had been used by the appellant since 2015 and was already protected through several registrations in other classes.
The company had also recorded sales of approximately βΉ23 crore during 2020-21.
Significantly, the appellant informed the Court that it was not claiming exclusive rights over the word βHealthβ per se.
Considering these circumstances, the High Court concluded that βHEALTHSKOOLβ was sufficiently distinctive at that stage to proceed for advertisement.
Registry Directed to Advertise Mark Within Two Months
The Delhi High Court consequently held that the Senior Examiner’s refusal order was unsustainable and liable to be set aside.
The Court directed that the trademark application proceed for advertisement in the Trade Marks Journal with the condition:
βNo exclusive rights in the word βHealthβ.β
The Registrar was directed to advertise the mark within two months. The Court, however, clarified that its decision would not bind any opposition proceedings that might subsequently be initiated by a third party. The appeal was accordingly allowed.
Key Legal Takeaway
The judgment reinforces that the Trade Marks Registry cannot treat every mark having some connection with the relevant goods as automatically descriptive. The proper inquiry requires consideration of the spectrum of distinctiveness.
In particular, suggestive marks are inherently distinctive, whereas descriptive marks ordinarily require secondary meaning. The degree of imagination required by a consumer to connect a mark with the product remains an important test in drawing that distinction.
The decision also recognises that the presence of a potentially descriptive component within a composite trademark does not necessarily justify rejection of the entire mark, particularly where an appropriate disclaimer can protect the public interest.
Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.
Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.
Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 10.09.2026
CESTAT Mumbai Sets Aside Customs Duty Demand Under EPCG Scheme; Delay in EODC Issuance by DGFT Held Beyond Exporterβs Control
This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .
The Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Mumbai has granted significant relief to CEAT Limited in an EPCG dispute, setting aside a customs duty demand of βΉ1.79 crore, along with redemption fine and penalty, after finding that the company had fulfilled its export obligations and that the delay in issuance of the Export Obligation Discharge Certificate (EODC) by DGFT was beyond its control.
The Regional Bench comprising Judicial Member Ajay Sharma and Technical Member M.M. Parthiban allowed CEATβs appeal against the Order-in-Original dated 22 May 2025 passed by the Commissioner of Customs (Export), Mumbai.
Background of the EPCG Dispute
CEAT, engaged in the manufacture of automobile tyres, had obtained six EPCG authorisations in 2013 for importing capital goods against the export of tyres. The capital goods imported under these authorisations were valued at approximately βΉ7.76 crore, involving customs duty foregone of βΉ1,79,12,579. CEAT had executed bonds undertaking fulfilment of its export obligations.
Customs subsequently alleged that CEAT had failed to produce the required Capital Goods Installation Certificates and had also not submitted the EODC as required under the applicable EPCG exemption notification.
Accordingly, a show cause notice dated 7 October 2024 proposed recovery of the entire duty foregone amount of βΉ1.79 crore with interest, confiscation of the imported capital goods under Section 111(o) of the Customs Act, 1962, and penalty under Section 112(a). The Commissioner confirmed the proposals through the Order-in-Original dated 22 May 2025.
CEAT Had Already Applied to DGFT for EODC
Before CESTAT, CEAT contended that it had fulfilled the prescribed export obligation and had already approached the DGFT authorities for issuance of the EODC.
Significantly, the application seeking the discharge certificate had been submitted to DGFT on 13 January 2020, well before the Customs adjudication. The EODC, however, remained pending with the licensing authority when the Commissioner passed the impugned order.
CEAT also produced installation certificates issued by the jurisdictional Central Excise authorities covering the imported capital goods. Subsequently, the EODC covering all six EPCG authorisations was issued by DGFT, and Customs itself accepted the discharge certificate and cancelled the bonds executed under the six EPCG authorisations.
Delay by DGFT Was Beyond Exporterβs Control: CESTAT
The Tribunal found that the requisite conditions concerning installation of the imported capital goods had been fulfilled.
More importantly, CESTAT noted that CEAT had submitted the necessary details to DGFT for obtaining the EODC as early as 13 January 2020, whereas the certificate was ultimately issued only later by the DGFT authorities.
The Tribunal therefore held that non-production of the EODC during adjudication was beyond CEATβs control, since the competent authority had not issued the certificate despite CEAT having completed the exports necessary for fulfilment of its export obligation and submitted the requisite documents.
This finding is particularly important for EPCG disputes where an importer/exporter has completed the substantive export obligation but faces Customs proceedings merely because the formal discharge certificate remains pending before DGFT.
Customs Should Not Prematurely Decide EPCG Compliance While EODC Is Pending
CESTAT relied upon its earlier decision in Alca Technologies v. Commissioner of Customs, Nhava Sheva-IV, reported at 2019 (369) E.L.T. 1447 (Tri.-Mumbai).
In that case, the Tribunal had held that where an application for EODC remained pending before the licensing authority, the proper course for Customs was to keep the show cause notice pending until the licensing authority took a decision, rather than independently proceeding to conclude that the conditions of the exemption notification had not been fulfilled.
The principle assumes importance because determination of whether the export obligation under an EPCG authorisation has been discharged substantially falls within the framework administered by DGFT.
CESTAT Notes Contradictory Stand Taken by Customs
One of the strongest observations in the order concerned the contradictory positions adopted within the Customs Department itself.
After DGFT issued the EODC, the Customs authorities accepted the certificate and cancelled the bonds relating to all six EPCG licences. At the same time, the impugned adjudication order continued to demand customs duty on the premise that CEAT had failed to submit the EODC.
CESTAT observed that, on one hand, Customs had confirmed the duty demand for non-production of the EODC, while on the other hand, authorities of the same Commissionerate had subsequently accepted the EODC and cancelled the bonds.
The Tribunal therefore found no merit in sustaining the demand merely on the ground of non-submission of the documents during the original adjudication.
Duty Demand, Redemption Fine and Penalty Set Aside
In light of CEAT’s fulfilment of the EPCG conditions, issuance of the EODC by DGFT, production of installation certificates and subsequent cancellation of the bonds by Customs itself, CESTAT held that the impugned order could not legally survive.
The Tribunal accordingly held that the order, insofar as it confirmed the customs duty demand along with redemption fine and penalty, was legally unsustainable.
The impugned order was therefore set aside and CEAT’s appeal was allowed.
Key Legal Takeaway
The ruling reinforces an important principle in EPCG and export-promotion disputes: where an exporter has completed the substantive export obligation and has timely approached DGFT for an EODC, it should not ordinarily suffer adverse customs consequences merely because issuance of the formal certificate remains pending with the licensing authority.
The decision also underlines the need for coordination between DGFT and Customs. Where the licensing authority is still considering an EODC application, Customs should avoid prematurely concluding that the export obligation has not been fulfilled.
Once DGFT subsequently certifies fulfilment and Customs itself accepts that certificate by cancelling the corresponding bonds, maintaining a duty demand based solely on earlier non-production of the EODC becomes untenable.
Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.
Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.
Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 10.09.2026
Delhi High Court Grants Bail Under NDPS Act Over 51-Day Delay in Sampling
This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .
In a significant ruling concerning the sampling and preservation of seized narcotic drugs under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the Delhi High Court held that an application under Section 52A of the NDPS Act for drawing samples before a Magistrate must be made within a reasonable time and that an unexplained delay of 51 days could not be regarded as reasonable.
In Kashif v. Narcotics Control Bureau, BAIL APPLN. 253/2023, Justice Jasmeet Singh held that violation of Section 52A in the facts of the case vitiated the sample-collection procedure and that the resulting benefit must accrue to the accused. The Court consequently granted bail to the applicant, who had been in custody since 7 March 2022.
The judgment is particularly important because the Court addressed a recurring question under the NDPS Act: where Section 52A does not prescribe a specific numerical deadline, how quickly must the investigating agency approach the Magistrate for sampling and certification?
The Delhi High Court answered that, taking guidance from Standing Order 1/88, it is desirable that the Section 52A application be made within 72 hours or near about that timeframe, while also recognising that what constitutes a reasonable time ultimately depends upon the facts and circumstances of each case.
Background of the Case
The prosecution case originated from information received by a Junior Intelligence Officer of the Narcotics Control Bureau (NCB) concerning a suspicious parcel lying at the DHL Express office at Rama Road, Kirti Nagar, New Delhi.
An NCB team reached the premises and examined the parcel. According to the prosecution, it contained 11 lace rolls and three pieces of cloth. Upon checking one lace roll, officers allegedly found 120 strips of Tramadol tablets, with ten tablets in each strip. Examination of the remaining rolls ultimately led to the alleged discovery of 13,200 strips of Tramadol tablets. The contraband was seized on 24 February 2022.
The investigation subsequently led to further seizures. On 28 February 2022, 15,000 Zolpidem tablets were allegedly recovered at Terminal 3, IGI Airport, while another 19,440 Tramadol tablets were recovered from packages at Global India Express Pvt. Ltd., Mahipalpur.
The prosecution alleged that co-accused Tamir Ali disclosed the involvement of Kashif and other persons in sending NRx tablets to the United States. Kashif was thereafter arrested near Jewar Toll Plaza on 7 March 2022.
Applicantβs Principal Challenge: Defective and Delayed Sampling
The bail application raised serious objections concerning the manner in which the seized substances were sampled.
The applicant argued that the procedure prescribed by Standing Order 1/88 had not been followed. In particular, it was contended that sampling had not been carried out on the spot in accordance with Clause 1.5 of the Standing Order.
Reliance was placed upon Basant Rai v. State, 2012 SCC OnLine Del 3319, to challenge the procedure of mixing tablets recovered from different strips/packages rather than following the prescribed representative sampling procedure.
The applicant also relied upon the Supreme Court decision in Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji, Goa, AIR 1993 SC 1456, contending that proper sampling was required from the individual packets and that the procedure followed by the NCB was deficient.
However, the issue that ultimately assumed central importance before the High Court was the delay in approaching the Magistrate under Section 52A of the NDPS Act.
Section 52A of the NDPS Act: Why Is Magistrate-Supervised Sampling Important?
Section 52A lays down the statutory mechanism concerning disposal and evidentiary documentation of seized narcotic drugs and psychotropic substances.
Under Section 52A(2), the authorised officer is required to prepare an inventory and may approach the Magistrate for, among other things:
certification of the correctness of the inventory;
taking and certification of photographs; and
drawing representative samples in the presence of the Magistrate and certification of the correctness of the list of samples.
Importantly, Section 52A(4) gives evidentiary significance to the inventory, photographs and list of samples certified by the Magistrate by providing for their treatment as primary evidence.
The integrity of this process therefore assumes considerable importance in an NDPS prosecution.
Standing Order 1/88 and the 72-Hour Requirement
The Court also examined Clauses 1.5 and 1.13 of Standing Order 1/88.
Clause 1.5 provided for samples to be drawn at the spot of recovery, in duplicate, in the presence of panch witnesses and the person from whose possession the substance was recovered.
Clause 1.13 provided that samples should be dispatched to the laboratory within 72 hours of seizure to avoid legal objections.
The Court noted that a notification published on 23 December 2022 repealed Standing Orders 1/88 and 1/89 and clarified the sampling mechanism by requiring sampling to be undertaken in accordance with Section 52A(2). However, the Court held that this subsequent notification could not be applied retrospectively to the case before it.
Supreme Court in Mohanlal: Section 52A Does Not Brook Delay
A central precedent considered by the Delhi High Court was Union of India v. Mohanlal, (2016) 3 SCC 379.
The Supreme Court had recognised the conflict between the statutory mechanism under Section 52A and the Standing Orders relating to sampling. Nevertheless, it stressed that once contraband is seized, the authorised officer should approach the Magistrate for sampling and certification without loss of time.
The Delhi High Court extracted the Supreme Court’s conclusion that although there was no basis for reading an exact statutory timeframe into Section 52A, an application for sampling and certification should nevertheless be made without undue delay.
This distinction became crucial.
The absence of a fixed number of days in Section 52A did not, according to the Delhi High Court, give the investigating agency unlimited discretion regarding when to approach the Magistrate.
Court: Reasonable Time Must Be Read Into Section 52A
The High Court framed the central question as:
What constitutes a reasonable time for making an application to the Magistrate under Section 52A, and what is the effect of delay?
After examining the statute, Standing Orders and Supreme Court jurisprudence, the Court held that a reasonable timeframe must be read into Section 52A(2).
The Court rejected the proposition that because the legislation does not expressly specify a deadline, investigating authorities could take an indefinite amount of time to initiate the statutory sampling process.
It observed that the seizure, quantity and quality of contraband constitute crucial evidence in NDPS proceedings and that drawing and certification of samples in the presence of a Magistrate are of utmost importance.
Delhi High Court Suggests 72 Hours or Near About as Desirable Period
One of the most significant aspects of the judgment appears in paragraph 28.
The Court recognised that what constitutes reasonable time will depend upon the circumstances of each case. Nevertheless, taking guidance from Standing Order 1/88, Justice Jasmeet Singh held that:
it is desirable that an application under Section 52A should be made within 72 hours or near about the said timeframe.
The Court was careful not to convert this observation into an inflexible statutory deadline. Rather, it used the Standing Order as a guide for assessing whether the delay was reasonable.
This makes the judgment important for both prosecution agencies and defence lawyers dealing with NDPS cases involving delayed sampling.
Why Delay in Sampling Matters
The Court’s concern was fundamentally linked to the integrity of physical evidence.
Where seized narcotic substances remain in the custody and control of the prosecuting agency for an extended period before the statutory sampling process is completed, questions may arise regarding preservation and the possibility of tampering.
The Court relied upon Rishi Dev @ Onkar Singh v. State, 2008:DHC:1513, where the Delhi High Court had stressed the importance of sending samples for testing promptly because delay can create the possibility of interference with material kept in the police malkhana.
In Kashif, the Court concluded that non-compliance with Section 52A within a reasonable time could create an apprehension that the sample may have been tampered with. It further observed that where a sample is wrongly drawn, the benefit of doubt must accrue to the accused, while the prosecuting agency would have to establish at trial that the sample remained immune from tampering.
51-Day Delay Held Clearly Unreasonable
Applying these principles to the facts, the High Court noted that the last seizure was made on 2 March 2022, whereas the application under Section 52A for drawing samples and certification was filed only on 22 April 2022.
The delay was therefore 51 days.
The Court held categorically that:
βA period of 51 days, by no stretch of imagination, can be called a reasonable periodβ
for filing a Section 52A application.
The Court also found it significant that the NCB had furnished no reasons explaining the 51-day delay.
Investigating Agency Must Explain Delay
The Court further observed that an application under Section 52A for sample collection is not a highly technical proceeding requiring elaborate factual or legal pleadings.
It characterised it as being more in the nature of a clerical application and held that it should mandatorily be moved within a reasonable time.
The Court stated that the application must be moved at the earliest, and if it is not, the authorities must explain the reasons for the delay.
This aspect of the judgment is particularly significant because it places an evidentiary and procedural burden upon investigating agencies to account for unexplained delay.
Standing Orders Cannot Be Blatantly Flouted
The judgment also relies significantly upon the Supreme Court’s decision in Noor Aga v. State of Punjab & Anr., (2008) 16 SCC 417.
The Supreme Court in Noor Aga had emphasised that guidelines issued under legal authority cannot simply be ignored and that substantial compliance with such guidelines is important, particularly in penal proceedings.
The Delhi High Court noted that NDPS punishments are punitive and stringent, making procedural safeguards particularly important in balancing the rights of an accused.
The Court further referred to its earlier decision in Laxman Thakur v. State, BAIL APPLN. 3233/2022, 2022/DHC/005591, where Standing Order 1/88 had been treated as mandatory.
Earlier Delhi High Court Decisions Considered
The Court examined several earlier decisions concerning NDPS sampling.
In Amani Fidel Chris v. Narcotics Control Bureau, 2020 SCC OnLine Del 2080, bail had been granted where the sampling procedure followed by the investigating agency conformed neither to Section 52A nor to the relevant Standing Orders.
The NCB, on the other hand, relied upon Arvind Yadav in JC Through His Pairokar v. Govt. of NCT Delhi Through Standing Counsel, BAIL APPLN. 1416/2021, 2021:DHC:1965, where a coordinate Bench had declined to grant bail merely because samples had been drawn without the Magistrate’s presence, leaving the effect upon the sanctity of the samples to be examined at trial.
The Court distinguished the issue before it by focusing upon the reasonable apprehension regarding preservation or tampering arising from prolonged delay.
Section 52A Violation Held to Vitiate Sample Collection Procedure
After considering the entire statutory and judicial framework, the Court reached a clear conclusion:
Violation of Section 52A vitiated the sample collection procedure, and the benefit had to accrue to the applicant.
The Court also rejected the contention that the applicant could not raise the objection because he had failed to object when the Section 52A application was eventually moved.
Justice Jasmeet Singh held that since the objection was a legal objection, it could be raised at any stage.
Section 37 Embargo Held Inapplicable to the Applicant
The Court also considered the stringent bail restrictions contained in Section 37 of the NDPS Act.
It noted that Kashif had been in custody since 7 March 2022, no further custodial interrogation was required, and no recovery had been made from the applicant or at his instance.
On these facts, the Court held that the embargo under Section 37 was not applicable to the applicant.
Bail Granted Subject to Stringent Conditions
The High Court ultimately allowed the bail application.
Kashif was directed to furnish a personal bond and surety bond of βΉ25,000 each, subject to the satisfaction of the Trial Court.
Among other conditions, he was required to appear before the Court when required, keep his mobile number operational, join investigation when called, inform the authorities of any change of address, refrain from leaving the country and surrender his passport, if any.
He was also prohibited from engaging in criminal activity, contacting prosecution witnesses or tampering with evidence.
The Court expressly clarified that its observations were made only for deciding the bail application and would have no bearing on the merits of the case at trial.
Key Case Laws Referred to in the Judgment
Case
Citation
Principle/Context
Tofan Singh v. State of Tamil Nadu
Criminal Appeal No. 152/2013, decided 29.10.2020
Admissibility of statements under Section 67 NDPS Act
Basant Rai v. State
2012 SCC OnLine Del 3319
Sampling procedure
Gaunter Edwin Kircher v. State of Goa
AIR 1993 SC 1456
Sampling from seized packets
Union of India v. Mohanlal
(2016) 3 SCC 379
Section 52A sampling/certification without undue delay
Noor Aga v. State of Punjab & Anr.
(2008) 16 SCC 417
Substantial compliance with Standing Orders
Chief Information Commissioner v. State of Manipur
(2011) 15 SCC 1
Statutory interpretation/procedure
Arvind Yadav v. Govt. of NCT Delhi
2021:DHC:1965
Effect of Section 52A non-compliance at bail stage
Amani Fidel Chris v. NCB
2020 SCC OnLine Del 2080
Bail and defective NDPS sampling
Laxman Thakur v. State
2022/DHC/005591
Mandatory character of Standing Order 1/88
Rishi Dev @ Onkar Singh v. State
2008:DHC:1513
Delay, sample preservation and possibility of tampering
The judgment also reproduces, through Chief Information Commissioner, references to Taylor v. Taylor, (1875) 1 Ch D 426 (CA); Nazir Ahmad v. Emperor, AIR 1936 PC 253 (2); Deep Chand v. State of Rajasthan, AIR 1961 SC 1527; and State of U.P. v. Singhara Singh, AIR 1964 SC 358, on the principle that where law prescribes a particular manner of doing something, the prescribed procedure should be followed.
Key Legal Takeaways from Kashif v. NCB
The judgment establishes several important propositions for NDPS proceedings.
First, the mere fact that Section 52A does not prescribe an express numerical deadline does not permit indefinite delay in approaching the Magistrate.
Second, an application for sampling and certification must be made at the earliest and within a reasonable period.
Third, taking guidance from Standing Order 1/88, the Delhi High Court considered 72 hours or near about that period desirable for making a Section 52A application. This should, however, be understood in the context of the Court’s simultaneous observation that reasonableness depends upon the facts and circumstances of each case.
Fourth, unexplained delay can raise legitimate concerns regarding preservation and possible tampering of the seized material.
Fifth, where delay occurs, the investigating agency should provide an explanation.
Sixth, procedural safeguards assume heightened significance under the NDPS Act because of the severity of the punishments and stringent statutory regime.
Why This Judgment Matters
Kashif v. NCB is significant not merely because bail was granted, but because it attempts to give practical meaning to the Supreme Court’s requirement in Mohanlal that Section 52A proceedings be initiated βwithout undue delay.β
The Delhi High Court did not formally rewrite Section 52A by inserting a rigid statutory limitation period. Instead, it harmoniously read Section 52A with the applicable Standing Order and concluded that the absence of an express deadline cannot allow the prosecution to keep seized contraband under its exclusive custody indefinitely before seeking Magistrate-supervised sampling.
For investigating agencies, the ruling underlines the importance of prompt Section 52A applications, proper sampling, preservation of the chain of custody and documentation of reasons for any unavoidable delay.
For accused persons, it reinforces the proposition that procedural safeguards relating to the integrity of seized narcotic substances are not merely technical formalities, particularly where the prosecution’s case depends upon the identity, quantity and chemical composition of the alleged contraband.
Conclusion
The Delhi High Court’s judgment in Kashif v. Narcotics Control Bureau, BAIL APPLN. 253/2023, is an important authority on the relationship between Section 52A of the NDPS Act, Standing Order 1/88 and timely Magistrate-supervised sampling. The Court found that the NCB had approached the Magistrate only 51 days after the last seizure, without furnishing reasons for the delay.
Such a period, the Court held, could not be considered reasonable. It consequently held that the Section 52A violation vitiated the sample-collection procedure and that the benefit should accrue to the applicant.
Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.
Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.
Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 10.09.2026
Failure to Register Project Under Section 3 Does Not Oust RERAβs Adjudicatory Jurisdiction Under Section 31
This Short Article has been prepared & written by Advocate Narendra Singh. The views expressed are based on his interpretation of the law. He can be reached at his email idamitnaren@outlook.com.
In an important ruling concerning the jurisdiction of the Real Estate Regulatory Authority (RERA) and the rights of homebuyers, the Punjab & Haryana High Court has held that a promoter cannot defeat an allotteeβs remedy under the Real Estate (Regulation and Development) Act, 2016 merely by contending that the concerned project was not registered with RERA.
A Division Bench comprising Justice Sureshwar Thakur and Justice Vikas Suri rejected the jurisdictional challenge raised by M/s Ramprastha Developers Pvt. Ltd. and others against an order passed by the Haryana Real Estate Regulatory Authority, Gurugram. The Court ultimately dismissed the writ petition and held that the petitioners could pursue the statutory appellate remedy available under the RERA Act.
Background of the Dispute
The writ petition challenged an order dated 26 July 2024 passed by the Haryana Real Estate Regulatory Authority, Gurugram on complaints instituted by Yuvraj Arora and Vivek Arora.
An important document before the Court was a receipt issued by Ramprastha Developers recording payment of βΉ2,49,37,500 in connection with a request for tentative registration of 6,500 square yards in its future potential projects.
The developers principally argued that RERA lacked jurisdiction because the subject project had not been registered under Section 3 of the RERA Act. According to them, registration of the project was a mandatory prerequisite before the provisions of the RERA Act could apply.
Developers Challenge RERAβs Jurisdiction
The petitioners contended that the RERA order suffered from an inherent jurisdictional defect and was effectively coram non judice.
Their argument was that no requisite registration/licence existed in respect of the project and, therefore, RERA could not entertain the complaints. They also questioned whether a payment relating to a prospective or future project could confer enforceable rights upon the complainants under the RERA Act.
The respondents, on the other hand, raised a preliminary objection to the maintainability of the writ petition because Section 43(5) of the RERA Act provides a statutory appeal before the Real Estate Appellate Tribunal against an order of the Authority or adjudicating officer.
High Court Examines Section 3 of the RERA Act
The Court considered Section 3, which generally prohibits a promoter from advertising, marketing, booking, selling or offering property in a real estate project without registration with the Real Estate Regulatory Authority.
The High Court, however, rejected the proposition that the promoterβs failure to secure the relevant registration could itself extinguish the rights of homebuyers to approach RERA.
The Court observed that non-issuance or absence of the relevant registration does not restrict the right of homebuyers to access remedies contemplated under the RERA Act.
This distinction became central to the judgment: the promoterβs statutory obligation to register a project cannot be converted into a jurisdictional defence against an aggrieved allottee.
Section 31 Is the Source of RERAβs Adjudicatory Jurisdiction
The High Court placed considerable emphasis on Section 31 of the RERA Act.
Section 31 permits any aggrieved person to file a complaint before the Authority or adjudicating officer for violation or contravention of the Act, rules or regulations against a promoter, allottee or real estate agent.
The Court held that the question of RERA’s adjudicatory jurisdiction is more directly governed by this statutory right to file a complaint than by whether every requirement relating to project registration under Section 3 had first been fulfilled.
The Court consequently reasoned that compliance with Section 3, or even action by the competent authority under the provisos to Section 3, is not a statutory precursor to the vesting of adjudicatory jurisdiction in RERA.
Promoter Cannot Benefit From Non-Registration
The judgment has an important consumer-protection consequence.
If non-registration of a project were treated as sufficient to oust RERA jurisdiction, a promoter could potentially rely upon its own failure to comply with registration requirements to prevent an aggrieved purchaser or allottee from approaching the regulatory authority.
The High Court’s interpretation avoids such a result.
The Court read the provisions of the RERA Act harmoniously and concluded that the statutory framework confers adjudicatory competence upon RERA to entertain complaints concerning alleged violations by promoters.
It therefore held that neither the filing of the complaints nor RERA’s exercise of jurisdiction suffered from an inherent jurisdictional defect or the vice of coram non judice.
RERAβs Powers Under Section 37
The Court also referred to Section 37 of the RERA Act, which authorises the Regulatory Authority to issue directions to promoters, allottees and real estate agents for the purpose of discharging its functions under the Act, Rules and Regulations.
The provision states that such directions are binding on all concerned.
This reinforced the Court’s conclusion regarding the breadth of RERA’s regulatory and adjudicatory authority.
Prospective Allottee Can Also Have Locus to Approach RERA
Another significant issue concerned the complainants’ status as allottees.
The developers argued that the complainant had merely paid money in respect of prospective projects and that no such project had actually been floated at the relevant stage. On this basis, they questioned whether any cause of action or locus standi existed.
The High Court rejected this contention.
It reasoned that the statutory concept of an allottee could encompass potential or prospective allottees in relation to projects proposed to be undertaken in the future, and considered the receipt/documentary arrangement sufficient in the circumstances to reject the challenge to the complainants’ locus.
This aspect of the judgment may have particular significance in cases involving advance bookings, pre-launch payments, tentative registrations and payments made for future projects.
Alternative Remedy Under Section 43(5)
Having concluded that RERA had not exercised jurisdiction that was inherently non-existent, the High Court addressed the developers’ attempt to invoke writ jurisdiction directly.
The Court found no merit in the argument that the statutory appellate remedy was ineffective merely because the petitioners alleged that RERA’s original order was without jurisdiction.
Since the jurisdiction assumed by RERA was neither non-est nor coram non judice, the developers were required to pursue the statutory remedy of appeal against the impugned order.
Section 43(5) is particularly significant for promoters because an appeal by a promoter is subject to the statutory pre-deposit requirement prescribed by the proviso to that provision.
Relief Regarding Limitation for Statutory Appeal
While dismissing the writ petition, the High Court provided an important procedural safeguard.
It observed that if the statutory appeal filed by the petitioners was time-barred, they could file an application under Section 14 of the Limitation Act, 1963.
The appellate body was directed to pass a reasoned decision on such application and thereafter, where appropriate, register and decide the appeal after hearing all affected parties.
Key Principles Emerging From the Judgment
The judgment establishes several important propositions for RERA disputes:
First, non-registration of a real estate project does not, by itself, deprive an aggrieved homebuyer or allottee of the statutory remedy available under RERA.
Second, the promoter’s obligation to register a project under Section 3 must be distinguished from RERA’s adjudicatory jurisdiction under Section 31.
Third, failure to comply with project-registration requirements cannot automatically be used by the promoter to defeat a complaint brought by an aggrieved person.
Fourth, RERA enjoys statutory powers under Section 37 to issue binding directions to promoters, allottees and real estate agents.
Fifth, the Court recognised, in the factual setting before it, the standing of a person who had paid substantial consideration towards a prospective project to pursue remedies under the Act.
Sixth, where RERA possesses jurisdiction, a promoter challenging its order should ordinarily pursue the statutory appeal under Section 43(5) instead of bypassing that remedy through a writ petition.
Significance for Homebuyers and Developers
The ruling strengthens the remedial character of the RERA framework.
For homebuyers, it indicates that a developer’s failure to complete statutory registration formalities does not necessarily leave purchasers without a remedy under RERA. This is especially relevant to disputes involving pre-launch bookings, tentative allotments, advance payments and projects whose regulatory status is disputed.
For developers, the judgment highlights that non-registration cannot safely be treated as a jurisdictional shield. The obligation to register and the jurisdiction of RERA to address grievances operate within the broader statutory framework and must be interpreted harmoniously.
Conclusion
In M/s Ramprastha Developers Pvt. Ltd. & Ors. v. State of Haryana & Ors., the Punjab & Haryana High Court rejected the developers’ contention that absence of RERA registration deprived the Authority of jurisdiction over the homebuyers’ complaints.
The Court held that the statutory right of an aggrieved person to approach RERA under Section 31 is central to the Authority’s adjudicatory competence, while non-compliance with Section 3 does not automatically extinguish that remedy. Finding no inherent jurisdictional defect in the proceedings before Haryana RERA, the High Court dismissed the writ petition, leaving the developers to pursue their statutory appellate remedy. It also permitted them to seek the benefit of Section 14 of the Limitation Act if limitation became an issue before the appellate forum.
Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.
Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.
Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 10.09.2026
Bombay High Court Clarifies Scope of Arbitration Against Non-Signatories
This Short Article has been prepared & written by Arbitrator Shobhit Mallik. The views expressed are based on his interpretation of the law. He can be reached at his email idshobhit.Ica23@gmail.com.
In an important ruling on the binding effect of arbitration agreements upon non-signatories and subsequent holders of property rights, the Bombay High Court has held that a person does not become bound by an arbitration clause contained in an earlier development agreement merely because that person subsequently acquires leasehold rights or an interest in the property.
Justice Amit Borkar, while deciding an application under Section 11 of the Arbitration and Conciliation Act, 1996, drew a clear distinction between an assignment of property rights and an assignment of contractual rights and obligations. The Court held that a subsequent lessee can be brought within an arbitration agreement only where there is sufficient material demonstrating assignment, incorporation, consent, acceptance of contractual obligations, or unequivocal conduct adopting the underlying agreement and its arbitration clause.
At the same time, the Court held that disputes between the applicants and the original contracting Respondent Nos. 2 to 4 could proceed to arbitration. Their objection that the claims were barred by limitation was left for determination by the Arbitral Tribunal under Section 16 of the Arbitration Act.
Background of the Dispute
The dispute arose from a registered Assignment of Development Agreement dated 12 November 2007.
Shree Satguru Developers and the other applicants were appointed as developers by the owners of the land. Under the agreement, development rights in the subject property were assigned to the applicants and an irrevocable Power of Attorney was also executed in their favour.
The consideration payable to the owners was fixed at βΉ5.5 crore, of which βΉ2.25 crore had already been paid at the relevant stage. The applicants claimed that they ultimately paid approximately βΉ5.21 crore to the owners.
The agreement also contained Clause 39, providing a dispute-resolution mechanism culminating in arbitration.
The controversy became complicated when the development arrangement was subsequently terminated and rights in the property underwent further transactions.
Termination of Development Rights
The applicants were served with a notice dated 18 December 2015, whereby Respondent Nos. 3 and 4 purported to terminate the Assignment of Development Rights.
The applicants disputed the termination and replied on 16 January 2016, maintaining that the delays in redevelopment were attributable to various external issues and failures on the part of the owners.
According to the applicants, discussions nevertheless continued. In 2017, the applicants requested recall of the termination and subsequently paid another βΉ10 lakh, which was accepted by Respondent Nos. 3 and 4.
These later events eventually became important to the question of limitation.
Subsequent Assignment of Leasehold Rights
A major issue arose after Respondent No. 1 acquired leasehold rights in the property under an Indenture of Assignment dated 13 August 2024.
The applicants contended that Respondent No. 1, being an assignee of Respondent Nos. 3 and 4, should also be treated as bound by the arbitration clause contained in the 2007 Development Agreement.
Respondent No. 1 disputed this contention.
His case was that he had acquired only the leasehold rights in the land and had never taken an assignment of the Development Agreement itself. It was argued that the Development Agreement created personal contractual rights and obligations between its parties and that those contractual obligations did not automatically travel with the land.
This raised the central legal question before the Bombay High Court:
Can a subsequent acquirer of leasehold/property rights be treated as an assignee of an earlier development agreement and thereby be compelled to arbitrate under its arbitration clause?
Arbitration Invoked in April 2026
The applicants issued a notice dated 30 April 2026, invoking arbitration.
Respondent No. 1 replied on 7 May 2026 and denied the existence of any arbitration agreement between himself and the applicants.
Respondent Nos. 2 to 4, meanwhile, contended that the applicants’ appointment had already been terminated and that the claims sought to be raised were barred by limitation.
The applicants thereafter approached the Bombay High Court seeking appointment of an arbitrator under Section 11.
Scope of Inquiry Under Section 11
The High Court first examined the extent of judicial scrutiny permissible while deciding a Section 11 application.
Relying upon the Supreme Court’s decision in Ajay Madhusudan Patel v. Jyotrindra S. Patel, (2025) 2 SCC 147, the Court reiterated the restricted scope of a referral court after insertion of Section 11(6-A).
The Court noted that the statutory enquiry is principally directed towards the existence of an arbitration agreement, rather than a full-scale adjudication of the underlying dispute.
The judgment also referred to the Supreme Court authorities in:
National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267; and
Duro Felguera S.A. v. Gangavaram Port Ltd., (2017) 9 SCC 729.
However, the Court recognised that a distinct question arises when arbitration is sought against a person who never signed the underlying agreement.
What Did Clause 39 Provide?
Clause 39 of the Development Agreement referred specifically to disputes βbetween the parties hereto.β
It initially contemplated reference of disputes to a three-member committee consisting of representatives from the assignors, developers and owners/confirming parties. If the committee failed to resolve the dispute, the matter was to be referred to a sole arbitrator jointly nominated by the βparties hereto.β
The language of this clause became decisive.
The High Court found nothing in Clause 39 indicating that every subsequent person obtaining an interest in the property would automatically become a party to the arbitration agreement.
Bombay High Court: Property Interest Is Not the Same as Contractual Assignment
The Court drew an important distinction between acquiring an interest in property and acquiring contractual rights and obligations.
It held that where a person is actually assigned the rights and obligations of a contracting party, that person mayβdepending upon the terms of the assignmentβbecome bound by the arbitration agreement forming part of that contract.
But the position is different where the person merely acquires some interest in the property that formed the subject matter of the original contract.
The Court held that this fact, by itself, does not make the subsequent acquirer an assignee of the Development Agreement.
This distinction has considerable significance for property-development transactions involving multiple successive developers, lessees, assignees and transferees.
A Lessee Does Not Automatically Become an βAssigneeβ
The Court explained that a lease or sub-lease gives the lessee a right to occupy or use property. It does not, merely by its existence, transfer the earlier Development Agreement or the arbitration clause contained in it.
Therefore, a person seeking to rely uponβor sought to be bound byβan arbitration clause as a subsequent lessee must demonstrate something more, such as:
contractual privity;
a valid assignment of the relevant agreement;
express incorporation of the earlier agreement;
written consent accepting the arbitration clause;
acceptance of the contractual obligations; or
unequivocal conduct demonstrating adoption of the Development Agreement and its arbitration clause.
The Court therefore treated the expressions βlesseeβ and βassigneeβ as describing legally distinct relationships, even though a particular transaction may, depending upon its terms, produce both effects.
Non-Signatories Can Still Be Bound in Appropriate Cases
Importantly, the Bombay High Court did not hold that a non-signatory can never be referred to arbitration.
The Court considered the Supreme Court’s landmark decision in Cox & Kings Ltd. v. SAP India Pvt. Ltd., (2024) 4 SCC 1.
Cox & Kings recognises that whether a non-signatory has become a genuine party to an arbitration agreement may involve complex factual and legal questions. The referral court must examine whether there is at least a prima facie basis for treating the non-signatory as a party; complex questions may thereafter appropriately be determined by the Arbitral Tribunal.
Thus, the decisive consideration is not simply whether the person physically signed the original contract.
The real question is whether there is a legally sustainable basis for concluding that the non-signatory became a party to or accepted the arbitration agreement.
No Prima Facie Material Against Respondent No. 1
On the facts before it, the Court found no such material.
Respondent No. 1 had obtained an assignment of lease/leasehold rights, but the applicants could not demonstrate a corresponding assignment of the Development Agreement dated 12 November 2007.
There was also no subsequent agreement under which Respondent No. 1 accepted Clause 39.
The fact that Respondent No. 1 had acquired leasehold rights and subsequently submitted a redevelopment proposal was insufficient to establish an agreement to arbitrate.
Similarly, knowledge of the applicants’ claimed development rights could not be equated with consent to arbitration.
The Court therefore declined to treat Respondent No. 1 as a party to Clause 39.
Knowledge of an Arbitration Clause Is Not Consent to Arbitration
One of the judgment’s particularly useful commercial propositions is the distinction between knowledge and consent.
A subsequent purchaser, lessee or developer may know that another party claims rights under an earlier agreement. That knowledge does not mean that the subsequent party has accepted the arbitration clause contained in that agreement.
Arbitration is fundamentally consensual.
Accordingly, the existence of a property dispute between two persons cannot, by itself, create an arbitration agreement between them.
This distinction is particularly relevant in redevelopment projects where multiple layers of title, leasehold rights, development rights, assignments and tenant agreements coexist.
Limitation: Referral Court Should Not Conduct Intricate Evidentiary Inquiry
The second major issue concerned limitation.
Respondent Nos. 2 to 4 argued that the Development Agreement had been terminated in December 2015, whereas arbitration was invoked only on 30 April 2026.
The applicants relied upon subsequent negotiations, the payment of βΉ10 lakh in 2017, redevelopment-related activities and later conduct to contend that their rights and disputes continued.
The Bombay High Court relied upon the Supreme Court’s decision in SBI General Insurance Co. Ltd. v. Krish Spinning, (2024) 12 SCC 1.
The Supreme Court had clarified that, at the Section 11 stage, the referral court should not undertake an intricate evidentiary enquiry into whether the substantive claims are time-barred. Such questions should ordinarily be left to the arbitrator.
The judgment also referred to Arif Azim Co. Ltd. v. Aptech Ltd., (2024) 5 SCC 313 and In Re: Interplay Between Arbitration Agreements under the Arbitration Act, 1996 & the Stamp Act, 1899, (2024) 6 SCC 1 in explaining the limited enquiry permissible at the referral stage.
Ten-Year Gap Did Not Lead Court to Decide Claim Limitation at Section 11 Stage
The High Court acknowledged that there was a substantial period between the termination of the agreement and invocation of arbitration.
Nevertheless, the applicants relied on subsequent events and conduct, including negotiations and payment.
The Court therefore declined to finally determine whether those circumstances extended, revived, acknowledged or otherwise affected the applicants’ claims.
It held that these questions required consideration by the Arbitral Tribunal under Section 16.
This is an important distinction: the Court was not holding that the claims were within limitation. Rather, it held that the substantive limitation objection remained open for adjudication by the arbitrator.
Arbitration Allowed Against Original Contracting Parties
As regards Respondent Nos. 2 to 4, there was no dispute about the existence of Clause 39 between the contracting parties.
The High Court therefore found that the applicants had established a case for appointment of an arbitrator against those respondents.
The limitation objection was expressly preserved for determination by the Arbitral Tribunal.
The Court accordingly partly allowed the arbitration application and referred the disputes between the applicants and Respondent Nos. 2 to 4 arising from the Assignment of Development Agreement dated 12 November 2007 to arbitration.
Sole Arbitrator Appointed
The Bombay High Court appointed Mr. Amrut Joshi, Advocate, as the Sole Arbitrator to adjudicate the disputes between the applicants and Respondent Nos. 2 to 4.
The appointment was made subject to the statutory disclosure requirements under Section 12 of the Arbitration and Conciliation Act, 1996, and absence of circumstances giving rise to justifiable doubts concerning the arbitrator’s independence or impartiality.
The Court also directed the arbitrator to forward the statutory disclosure under Section 11(8) read with Section 12(1), and directed the parties to appear before the arbitrator for further procedural directions. The arbitration costs and tribunal fees were to be borne equally in the first instance, subject to the final award on costs.
Key Legal Principles Emerging from the Judgment
The Bombay High Court’s ruling provides useful guidance on three interrelated areas of arbitration law.
First, acquisition of property rights does not automatically amount to assignment of contractual rights. A subsequent lessee does not become an assignee of a development agreement merely because it acquires leasehold rights in the property covered by that agreement.
Second, arbitration remains consent-based. A non-signatory may be bound in appropriate circumstances, but there must be at least prima facie material showing assignment, incorporation, acceptance, consent or conduct sufficient to connect that person with the arbitration agreement.
Third, knowledge is not consent. Awareness of an earlier development agreement or of another person’s claimed rights cannot by itself make a subsequent property-holder a party to its arbitration clause.
Fourth, the Section 11 enquiry remains limited. The referral court should determine whether the requisite arbitration agreement exists, but ordinarily should not conduct an intricate evidentiary trial on the substantive limitation of individual claims.
Fifth, limitation remains fully open before the tribunal. Referral to arbitration does not amount to a judicial finding that the claims are within limitation.
Important Supreme Court Authorities Referred to
The judgment considers a substantial line of Supreme Court authority governing Section 11 and non-signatories, including:
Judgment
Citation
Relevance
SBI General Insurance Co. Ltd. v. Krish Spinning
(2024) 12 SCC 1
Scope of limitation enquiry under Section 11
Ajay Madhusudan Patel v. Jyotrindra S. Patel
(2025) 2 SCC 147
Limited scope of Section 11 enquiry
Cox & Kings Ltd. v. SAP India Pvt. Ltd.
(2024) 4 SCC 1
Non-signatories and arbitration agreements
Duro Felguera S.A. v. Gangavaram Port Ltd.
(2017) 9 SCC 729
Existence of arbitration agreement under Section 11
SBP & Co. v. Patel Engineering Ltd.
(2005) 8 SCC 618
Historical scope of referral-court enquiry
National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd.
(2009) 1 SCC 267
Pre-amendment Section 11 jurisprudence
Arif Azim Co. Ltd. v. Aptech Ltd.
(2024) 5 SCC 313
Limitation concerning Section 11 proceedings
In Re: Interplay Between Arbitration Agreements under the Arbitration Act, 1996 & the Stamp Act, 1899
(2024) 6 SCC 1
Referral-stage principles
The Court specifically relied upon Cox & Kings while considering when a non-signatory can be regarded as a party to an arbitration agreement.
Commercial Significance for Real Estate and Redevelopment Transactions
The ruling has implications extending beyond arbitration law.
Development projects frequently involve a succession of transactionsβdevelopment agreements, conveyances, leases, assignments, redevelopment proposals, permanent alternate accommodation agreements and transfers of ownership or leasehold rights.
Parties should therefore avoid assuming that an arbitration clause automatically βruns with the land.β
If parties intend a subsequent purchaser, lessee, transferee, successor or assignee to be bound by an existing dispute-resolution mechanism, transaction documents should expressly address:
assignment of contractual rights and obligations, assumption of liabilities, incorporation of the original agreement, succession provisions and express adoption of the arbitration clause.
Clear drafting at the transactional stage can significantly reduce jurisdictional disputes when arbitration is later invoked.
Conclusion
The Bombay High Court’s ruling in Shree Satguru Developers & Ors. v. Chandrashekhar Champalal Hingarh & Ors., 2026:BHC-OS:19815, provides an important clarification on the relationship between property rights, contractual assignment and arbitration agreements. The case was decided by Justice Amit Borkar on 7 September 2026 in an application seeking appointment of an arbitrator under Section 11.
The Court’s central message is that mere acquisition of leasehold rights in a property does not make the subsequent lessee an assignee of an earlier development agreement or bind it to the arbitration clause contained therein. There must be a demonstrable legal connection to the contractual rights and obligations themselves.
Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.
Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.
Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 10.09.2026
Karnataka High Court Upholds POCSO Conviction but Modifies Juvenileβs Sentence; Compensation Enhanced to βΉ3 Lakh
This Short Article has been prepared & written by Advocate G Sridharamurthy. The views expressed are based on his interpretation of the law. He can be reached at his email id sriadv3@gmail.com.
The Karnataka High Court has upheld the conviction of a person who was a juvenile at the time of the offence in a case involving allegations under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the Indian Penal Code, while modifying the custodial sentence and enhancing the compensation payable to the victim from βΉ1 lakh to βΉ3 lakh.
The matter was decided by Justice H.P. Sandesh in Criminal Revision Petition No. 1262 of 2018. The revision challenged the appellate order dated 20 August 2018 and the Juvenile Justice Boardβs order dated 26 April 2018.
Background of the Case
The prosecution alleged that the petitioner, who was a juvenile at the relevant time, had sexually abused a four-year-old child. The case was registered after the childβs mother lodged a complaint, and the prosecution examined 12 witnesses, including the victim, her mother and medical witnesses.
The Juvenile Justice Board had convicted the petitioner under multiple provisions of the POCSO Act read with Sections 375 and 376 of the IPC and sentenced him to three years in a juvenile home, along with payment of βΉ1 lakh to the victim.
Contradictory Medical Evidence Considered
A major argument raised in revision concerned differences in the medical evidence.
One doctor who examined the child shortly after the incident reportedly noticed swelling, while another doctor at Vanivilasa Hospital, who examined the child later, did not find such swelling or injury. The defence relied on this discrepancy to argue that the prosecution case was doubtful.
The State, however, contended that the discrepancy was minor and that the immediate complaint, the testimony of the victim and her mother, and the first medical examination supported the prosecution case.
The Court also noted that the FSL report did not detect seminal stains. However, the allegation itself was not one of penile penetration.
Court Finds No Evidence of Penetrative Sexual Activity
While examining the evidence, the High Court observed that the medical and forensic materials did not suggest penetrative sexual activity.
The Court also took into account the petitionerβs status as a juvenile at the time of the offence, as well as the fact that he was by then married and had two children.
Instead of re-appreciating the entire evidence to disturb the conviction, the Court considered it appropriate to modify the sentence.
Sentence Modified; Compensation Increased to βΉ3 Lakh
The High Court modified the original sentence of three years.
The petitioner had already undergone 117 days in custody, and the Court gave him set-off for that period. In lieu of the remaining custodial sentence, the Court enhanced the compensation from βΉ1 lakh to βΉ3 lakh, while expressly confirming the conviction.
The petitioner had already deposited βΉ1 lakh before the Trial Court and was directed to deposit the balance βΉ2 lakh before the High Court.
Compensation to Be Secured for the Victim
The High Court further directed that both the existing βΉ1 lakh and the additional βΉ2 lakh be placed in fixed deposits in the name of the victim girl for three years or until she attained majority, whichever was earlier.
The victimβs mother was permitted to withdraw the quarterly interest on the fixed deposits for the childβs education.
Key Legal Takeaway
The decision is significant because the Court adopted a balanced approach: it did not overturn the conviction, but modified the sentence in view of the petitionerβs juvenile status and the evidentiary circumstances, while strengthening the compensatory relief available to the victim.
The judgment also shows that in revision proceedings involving juvenile offenders, courts may consider the rehabilitative dimension of juvenile justice while ensuring that the victimβs interests remain protected.
Conclusion
In Arunachalam @ Arun v. State of Karnataka & Anr., the Karnataka High Court confirmed the conviction but modified the sentence imposed upon the juvenile offender. The Court took note of the medical evidence, the absence of proof of penetrative sexual activity, the petitionerβs juvenile status and the period of custody already undergone.
The final result was that the custodial sentence was modified, 117 days of custody were given set-off, and compensation was enhanced from βΉ1 lakh to βΉ3 lakh, with the amount secured in fixed deposit for the victimβs benefit and education.
Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.
Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.
Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 10.09.2026
Delhi HC Ruled βONE FOR ALLβ Trademark Registrable for Books; Common Words Can Be Distinctive When Unconnected with the Goods
This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .
The Delhi High Court has ruled in favour of Oswaal Books and Learnings Private Limited, holding that its mark βONE FOR ALLβ is capable of registration for educational books and allied publications under Class 16 of the Trade Marks Act, 1999.
A Division Bench comprising Justice C. Hari Shankar and Justice Om Prakash Shukla set aside the orders of both the Registrar of Trade Marks and the Single Judge which had refused registration on the ground that βONE FOR ALLβ was a common, laudatory and non-distinctive expression.
Trademark Registry Had Refused βONE FOR ALLβ
Oswaal Books, engaged in the publication and sale of educational books and academic material, claimed to have adopted the mark βONE FOR ALLβ from 20 August 2020 for its educational publications.
It filed Trade Mark Application No. 4711190 on 20 October 2020 for registration in Class 16. The Registry raised an objection under Section 9(1)(a) of the Trade Marks Act, requiring Oswaal to establish that the mark was capable of distinguishing its goods from those of other traders.
The application was ultimately refused on 14 December 2023 on the ground that βONE FOR ALLβ was a common and non-distinctive expression and that Oswaal had failed to establish acquired distinctiveness or secondary meaning.
Single Judge Also Found the Mark Descriptive
Oswaal challenged the Registry’s decision before the Delhi High Court under Section 91 of the Trade Marks Act.
The Single Judge, however, upheld the refusal, reasoning that βONE FOR ALLβ was a common laudatory phrase suggesting that Oswaal’s books constituted a universal or βone-stopβ solution for students across different examinations and boards.
The Single Judge further found that the evidence produced by Oswaal largely related to its house mark βOSWAAL BOOKSβ, rather than establishing βONE FOR ALLβ as an independent source identifier.
Oswaal then preferred the Letters Patent Appeal before the Division Bench.
Distinctiveness Must Be Examined in Context of the Goods
The Division Bench clarified an important principle of trademark law: a mark cannot be declared non-distinctive merely because it consists of ordinary or commonly used words.
Distinctiveness has to be assessed in relation to the particular goods or services for which registration is sought.
The Court relied on its earlier decision in Leayan Global Pvt. Ltd. v. Bata India Ltd. and reiterated that even a common dictionary word can acquire distinctive character when used for goods or services with which the expression has no immediate connection.
The test, therefore, is not simply whether the words are commonly used in the English language, but whether consumers would immediately associate those words with the nature, quality, characteristics or purpose of the relevant goods.
Slogans and Taglines Can Function as Trademarks
The judgment also contains an important observation regarding the modern commercial significance of slogans and taglines.
The High Court held that slogans are capable of constituting trademarks within the meaning of Sections 2(m) and 2(zb) of the Trade Marks Act where they are capable of distinguishing one person’s goods from those of another.
The Court particularly noted the increasing importance of slogans in the modern digital marketplace. With the rapid expansion of digital marketing, slogans and taglines can perform a source-identifying function and may, in some cases, become even more readily recognised than the brand or trade name itself.
This observation could have wider significance for businesses seeking trademark protection for advertising slogans and brand taglines.
βONE FOR ALLβ Has No Immediate Connection With Books: Delhi High Court
The Division Bench expressly disagreed with the Single Judge’s conclusion that βONE FOR ALLβ was descriptive of Oswaal’s books.
According to the Court, the expression cannot naturally or immediately be associated with books or other goods falling within Class 16.
The phrase ordinarily conveys the idea of a single solution capable of replacing multiple alternatives. That meaning, the Court found, does not directly describe books, printed material or other Class 16 goods.
The Court further observed that βONE FOR ALLβ was not shown to be a common expression used in Class 16 to describe the relevant goods.
No Identical or Deceptively Similar Commercial Use Shown
Another factor weighing in Oswaal’s favour was the absence of evidence showing commercial use of an identical or deceptively similar mark in Class 16.
The Court noted that the Registrar had failed to demonstrate such use and that the Examination Report itself contained no objection under Section 11 of the Trade Marks Act, which deals with relative grounds for refusal based, among other things, on conflict with earlier trademarks.
βONE FOR ALLβ Is Suggestive, Not Descriptive
The Division Bench ultimately held that the mark did not evoke an immediate connection with books.
βONE FOR ALLβ could communicate the broader idea of universality or comprehensive coverage, but it did not directly and unequivocally describe books.
The Court therefore concluded that the expression was, at the highest, suggestive rather than descriptive.
Even if Oswaal intended to project its publications as a universal solution for different academic needs, some degree of mental process was still necessary to connect the phrase with educational books. This was insufficient to render the mark descriptive.
Accordingly, the Court held that βONE FOR ALLβ satisfies the statutory requirement of distinctiveness and is capable of registration.
High Court Sets Aside Refusal of Trademark
The Division Bench consequently set aside both the Single Judge’s judgment and the Registrar of Trade Marks’ refusal order.
Oswaal’s trademark application was restored to the stage at which it stood when the refusal order was passed, with directions that the application proceed further from that stage.
The appeal was accordingly allowed with no order as to costs.
Key Legal Takeaway
The judgment reinforces that the use of common English words does not automatically make a trademark non-distinctive. The correct inquiry under Section 9(1)(a) is whether the mark, considered as a whole and in the context of the goods or services concerned, is capable of distinguishing one trader’s goods from another’s.
It also draws an important distinction between descriptive and suggestive marks. Where the connection between a phrase and the goods is not immediate and requires imagination or mental association, the mark may merely be suggestiveβand therefore capable of registration.
The ruling is particularly relevant to businesses using slogans, taglines and common-word combinations as sub-brands, especially in digital marketing, publishing and consumer-facing industries.
Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.
Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.
Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 09.09.2026
Punjab & Haryana High Court Clarifies RERA Jurisdiction: Non-Registration Does Not Defeat Homebuyersβ Remedies
This Short Article has been prepared & written by Advocate Narendra Singh. The views expressed are based on his interpretation of the law. He can be reached at his email idamitnaren@outlook.com.
The Punjab and Haryana High Court, in Parveen Gambhir and Others v. Union of India and Others, has delivered an important judgment examining the interface between the Real Estate (Regulation and Development) Act, 2016 (βRERAβ), the Haryana real-estate regulatory framework, town-planning legislation and apartment-ownership law.
The Division Bench comprising Justice Sureshwar Thakur and Justice Vikas Suri dismissed the writ petition and affirmed the impugned governmental directions and approval. The judgment is significant for three propositions: non-registration of a project under RERA does not by itself extinguish the remedies available to homebuyers; RERA authorities do not possess an independent statutory power to order demolition merely because construction deviates from sanctioned plans; and overlapping State and Central statutes can continue to operate in their respective fields unless there is a genuine inconsistency attracting Section 89 of RERA.
Background of the Dispute
The controversy concerned the group-housing project βWindchantsβ, situated in Sector 112, Gurugram. According to the petitioners, the project originally covered approximately 23.43 acres and was developed pursuant to licences obtained under the Haryana Development and Regulation of Urban Areas Act, 1975. The petitioners had purchased flats after relying upon advertisements, marketing material and representations concerning the project.
The dispute subsequently developed around, among other things, the treatment of the project as different phases, the applicability of RERA to portions of the development, occupation certificates, alleged deviations from sanctioned plans and the construction of additional EWS dwelling units.
An additional 1.19 acres was subsequently purchased and a further licence was issued in September 2019. The petitioners alleged that the developer sought to avoid the consequences of RERA by treating portions of the development as separate phases even though occupation/completion certificates had not been obtained when the RERA regime became applicable.
The controversy also had an earlier consumer-law dimension. An allottee had challenged an additional demand arising from an alleged increase in sale area before the National Consumer Disputes Redressal Commission. The NCDRC quashed that demand in August 2020, and the developer’s civil appeals were subsequently dismissed by the Supreme Court in January 2021.
What Was Challenged Before the High Court?
The petitioners principally sought quashing of:
1. Directions dated 25 January 2021, issued by the State Government purportedly under Section 83 of RERA; and
2. An in-principle approval dated 4 March 2021 relating to the fourth Occupation Certificate.
They additionally sought directions for a fresh site inspection, compliance with sanctioned plans and quashing of amendments to the project alleged to be contrary to RERA. The judgment records that the petition was directed against the Section 83 directions as well as the in-principle approval.
The controversy therefore went considerably beyond an ordinary builder-buyer dispute. It required the High Court to determine the respective regulatory fields occupied by RERA, the Haryana Development and Regulation of Urban Areas Act, 1975, the Haryana Apartment Ownership Act, 1983, and the applicable Haryana regulatory framework.
The Controversial Haryana Government Directions
One of the central challenges concerned the State Government’s directions of 25 January 2021.
Those directions prescribed a procedure for proposed additions or alterations to sanctioned layout/building plans. Among other things, the mechanism contemplated inviting objections from existing allottees, publication of proposed revisions, availability of original and revised plans for inspection, consideration of objections and hearings before the competent authority.
The directions also dealt with community and commercial facilities in licensed colonies. Importantly, they stated that, where the definition of βcommon areasβ under RERA conflicted with the Haryana Apartment Ownership Act, 1983, the definition under the State legislation would govern and contradictory provisions under RERA would be treated as redundant.
This became one of the principal constitutional and statutory issues before the Court.
Petitionersβ Case: RERA Must Prevail
The petitioners argued that the State Government had effectively accorded primacy to Haryana legislation over the Central RERA framework and thereby diluted the safeguards available under Section 14(2) of RERA.
They further argued that Section 83 merely empowers the appropriate Government to issue policy directions to the RERA Authority and cannot be employed to supplant the statutory authority or assume functions specifically entrusted to it.
Reliance was also placed on the Supreme Court’s decision in Forum for People’s Collective Efforts (FPCE) v. State of West Bengal, (2021) 8 SCC 599, and on Sections 88 and 89 of RERA, read with Article 254 of the Constitution.
Section 89 provides RERA with overriding effect where another law contains provisions inconsistent with it. The petitioners consequently argued that Haryana legislation could not be given precedence over the Parliamentary enactment.
Section 14 RERA: Promoters Must Adhere to Sanctioned Plans
The Court closely examined Section 14 of RERA.
Section 14 requires a promoter to develop and complete a project in accordance with sanctioned plans, layout plans and specifications approved by the competent authority.
For material alterations to sanctioned plans, layout plans or common areas, Section 14(2) requires the previous written consent of at least two-thirds of the allottees, excluding the promoter.
The statutory protection is important because βminor additions or alterationsβ do not extend to significant structural modifications. The provision excludes matters such as additions to area, changes in height, removal of part of a building and specified structural changes from the concept of minor alterations.
The High Court accordingly recognised a peremptory statutory requirement that promoters adhere to sanctioned plans, subject only to the limited alterations contemplated by Section 14.
This is an important protection for allottees: promoters cannot treat sanctioned plans as merely indicative documents capable of unilateral alteration.
Major Finding No. 1: Non-Registration of a Project Does Not Take Away a Homebuyer’s RERA Remedy
One of the most consequential portions of the judgment concerns the relationship between Section 3 and Section 31 of RERA.
Section 3 imposes the registration obligation upon promoters. Broadly, a promoter cannot advertise, market, book, sell or offer a real-estate project for sale without registration, subject to statutory exceptions. Ongoing projects for which completion certificates had not been issued were also brought within the registration mechanism.
But what happens if the promoter itself fails to register the project?
Can the promoter rely upon its own failure to argue that RERA has no jurisdiction over a homebuyer’s complaint?
The High Court’s answer is important: No.
Relying upon its earlier decision in Ramprastha Developers Pvt. Ltd., the Court held that the effect of non-registration under Section 3 would not be to bar homebuyers/allottees from invoking the remedy contemplated under Section 31 of RERA.
Section 31 grants an aggrieved person a statutory right to complain to the Authority or adjudicating officer regarding violations of RERA or the rules and regulations framed under it. The Court emphasised that adjudicatory competence is rooted more directly in this statutory remedy than in the promoter’s complianceβor non-complianceβwith Section 3.
Why this finding matters
This interpretation prevents an anomalous result.
If non-registration deprived RERA of jurisdiction, a promoter could potentially benefit from its own statutory default: the very failure for which RERA provides penalties could become a defence against proceedings initiated by an allottee.
The Court’s interpretation avoids that consequence.
Indeed, the judgment notes that Section 59 separately provides consequences for non-registration, including monetary penalties and further consequences for continuing violations.
Thus:
Failure to register is a statutory breach by the promoter; it is not ordinarily a jurisdictional shield against an aggrieved homebuyer.
Major Finding No. 2: RERA Has Broad Adjudicatory and Direction-Giving Powers
The judgment also refers to Section 37 of RERA.
Section 37 empowers the Authority, for discharging its statutory functions, to issue directions from time to time to promoters, allottees and real-estate agents, and such directions are binding upon those concerned.
Read together with Section 31, this reinforces the regulatory reach of RERA over complaints concerning statutory violations.
The Court therefore treated the homebuyer’s remedial rights and the Authority’s adjudicatory competence as distinct from the question whether the promoter had properly fulfilled the project-registration obligation.
Major Finding No. 3: RERA Authorities Cannot Themselves Order Demolition Under Section 14
This is perhaps the most practically important limitation identified in the judgment.
While Section 14 imposes a clear obligation upon promoters to adhere to sanctioned plans, the High Court held that the provision does not itself confer a power upon RERA authorities to order demolition of constructions that deviate from those plans.
The Court observed that even where gross deviations or excess construction are alleged, there must be a statutory source of authority empowering the particular regulator to order demolition. It found no such demolition power vested in the RERA authorities merely through Section 14.
This distinction is critical:
RERA can regulate the promoter’s obligations and adjudicate violations, but every remedial power cannot automatically be inferred merely from the existence of the underlying statutory obligation.
Who, Then, Can Order Demolition?
The High Court explained that the power to demolish construction deviating from sanctioned plans may lie with the Municipal Corporation, Town and Country Planning Department or another authority under the applicable functional statute, depending upon the location and statutory framework governing the construction.
The competent authority must therefore be identified by examining the statute governing planning, construction and municipal control over the particular property.
This creates an important jurisdictional distinction for litigants.
A homebuyer may have a valid grievance under RERA concerning deviations from sanctioned plans, but the specific relief of physical demolition may need to be pursued before the authority statutorily empowered to order demolition.
Major Finding No. 4: Sections 88 and 89 Must Be Read Together
Another important aspect of the decision is the Court’s interpretation of Sections 88 and 89 of RERA.
Section 88 provides that RERA operates in addition to and not in derogation of other laws.
Section 89 gives RERA overriding effect where there is an inconsistency with another law.
The Court therefore rejected an approach under which RERA would automatically displace every other statute touching upon real estate.
According to the judgment, overriding effect arises where there is an actual inconsistency. If another enactment operates in a separate regulatory field, both statutory regimes can coexist.
This is an application of the principle of harmonious statutory construction: the first task is to determine whether the statutes can operate together before resorting to the overriding provision.
RERA and Consumer Protection Remedies
The Court also addressed the relationship between RERA and the Consumer Protection Act, 2019.
It observed that Section 88 permits homebuyers to access remedies under RERA as well as under consumer law because the statutory frameworks can operate complementarily.
The judgment, however, states that the remedies are to be exercised before one or the other forum and not simultaneously before both. That proposition should be read in the specific context of the Court’s reasoning and the nature of the relief pursued.
The broader significance remains that RERA was not interpreted as automatically extinguishing other statutory remedies available to purchasers of real estate.
Major Finding No. 5: Different Statutes Occupy Different Regulatory Fields
The High Court ultimately concluded that the relevant legislative regimes did not necessarily suffer from repugnancy merely because they all touched upon aspects of real-estate development.
The Court identified different statutory fields: licensing and consequences of licensing breaches, regulation of land use and urban development, apartment ownership and transferability, and the separate protections and regulatory mechanisms created by RERA.
Accordingly, the Court reasoned that each legislation should be enforced within the field that it occupies, without one authority encroaching upon powers specifically vested in another.
This distinction explains why the Court simultaneously recognised strong RERA protections for homebuyers while declining to treat RERA authorities as universal authorities for every planning, licensing, demolition and ownership dispute arising from a real-estate project.
Occupation Certificates: Separate Statutory Remedy
The petitioners had also challenged matters relating to occupation certificates.
The Court held that if the petitioners were aggrieved by orders granting occupation certificates to the builder, they could pursue an appeal before the competent authority.
This again illustrates the jurisdictional approach adopted by the Court: the existence of RERA does not absorb every function of town-planning, licensing and building-control authorities.
Final Decision
Ultimately, the Division Bench found no merit in the writ petition.
The petition was dismissed, and the impugned annexures were maintained and affirmed.
Thus, despite the Court’s important exposition of homebuyer remedies, Section 14 compliance, non-registration and the limits of RERA’s demolition jurisdiction, the petitioners did not succeed in obtaining the quashing relief sought.
Key Legal Principles Emerging from the Judgment
Issue
Punjab & Haryana High Court’s finding
Non-registration under Section 3
Does not by itself deprive an aggrieved homebuyer/allottee of the remedy under Section 31.
Promoter’s duty under Section 14
Sanctioned plans must be followed; material changes are subject to statutory consent requirements.
Two-thirds consent
Section 14(2) requires previous written consent of at least two-thirds of the allottees for specified alterations/additions.
Power of RERA to order demolition
Section 14 does not itself confer demolition powers upon RERA authorities.
Unauthorised/deviating construction
Demolition may fall within the jurisdiction of municipal, town-planning or another statutorily empowered authority.
Sections 88 & 89
Must be harmoniously read; RERA overrides another law where there is actual inconsistency.
State laws and RERA
Can coexist where they occupy distinct regulatory fields.
Occupation Certificate challenge
Appropriate statutory appellate remedy before the competent authority remains available.
Final outcome
Writ petition dismissed; impugned annexures maintained and affirmed.
Practical Impact on Homebuyers
The judgment is particularly significant because it prevents the statutory registration requirement from being turned against homebuyers.
A developer’s alleged failure to register a project cannot automatically be used to say:
βBecause the project was never registered, RERA has no jurisdiction over the buyer’s grievance.β
The Court’s approach treats registration principally as a regulatory obligation imposed upon the promoter, while Section 31 provides the aggrieved person with the statutory route for complaining about violations.
At the same time, homebuyers must carefully identify the correct forum for the particular relief they seek. A claim for compensation, enforcement of RERA obligations or other statutory relief may properly fall within the RERA framework, whereas actual demolition of construction contrary to sanctioned plans may require proceedings before the competent municipal or town-planning authority.
Practical Impact on Developers and Promoters
The judgment should not be understood as diluting the obligation to register projects.
On the contrary, non-registration remains independently punishable under the RERA framework. More importantly, the judgment indicates that a promoter cannot necessarily rely on its own non-registration to defeat an allottee’s statutory remedy.
Developers must therefore separately ensure compliance with:
RERA registration requirements; sanctioned plans and Section 14; consent requirements for alterations; planning and licensing legislation; occupation/completion certificate requirements; and obligations imposed by municipal and town-planning authorities.
Compliance with one regulatory regime cannot automatically cure non-compliance with another where each statute occupies a separate field.
Significance of the Judgment for RERA Jurisprudence
Parveen Gambhir is significant not because it gives unlimited jurisdiction to RERA, but because it attempts to draw the boundaries of RERA jurisdiction.
The judgment essentially establishes a two-way principle.
On one side, the protective jurisdiction of RERA cannot easily be defeated by a promoter’s failure to register a project. On the other, RERA cannot be treated as an all-purpose planning and municipal authority merely because the dispute concerns a real-estate project.
That distinction is important for future litigation involving unregistered projects, deviations from sanctioned plans, occupation certificates, project alterations, common areas, planning permissions and overlapping regulatory statutes.
Conclusion
The Punjab and Haryana High Court’s decision in Parveen Gambhir & Others v. Union of India & Others reinforces an important feature of India’s real-estate regulatory framework: RERA is a protective and remedial statute, but its authorities must operate within the powers actually conferred by Parliament.
The judgment recognises that non-registration of a project does not automatically deprive homebuyers of their remedy under Section 31. At the same time, it distinguishes between RERA’s power to regulate and adjudicate promoter obligations and the statutory power to physically demolish unauthorised construction, which may vest in municipal or town-planning authorities.
Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.
Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.
Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 09.09.2026
Supreme Court Refuses Appointment of Arbitrator Where Claims Were Hopelessly Time-Barred: Bilateral Negotiations Cannot Indefinitely Extend Limitation
This Short Article has been prepared & written by Arbitrator Shobhit Mallik. The views expressed are based on his interpretation of the law. He can be reached at his email idshobhit.Ica23@gmail.com.
The Supreme Court in M/s B and T AG v. Ministry of Defence delivered an important ruling on the interplay between limitation, pre-arbitration negotiations and the Courtβs jurisdiction under Section 11(6) of the Arbitration and Conciliation Act, 1996.
The case arose from a defence procurement contract between a Swiss arms manufacturer and the Ministry of Defence. The petitioner sought appointment of an arbitral tribunal in relation to disputes concerning the encashment of a warranty bank guarantee and deduction of liquidated damages. The Supreme Court, however, declined to refer the dispute to arbitration, holding that the claim was βhopelessly barredβ because the petitioner had slept over its rights for more than five years.
The judgment is significant for commercial parties because it makes clear that mere negotiations, correspondence or repeated requests for reconsideration do not indefinitely postpone the accrual of a cause of action or extend the limitation period for invoking arbitration.
Background of the Dispute
The petitioner, M/s B and T AG, was a Swiss company engaged in the manufacture of arms. It had entered into a contract dated 27 March 2012 with the Government of India through the Ministry of Defence pursuant to an urgent tender for procurement of sub-machine guns under the Fast Track Procedure.
The dispute arose after the Ministry of Defence directed encashment of a warranty bank guarantee and recovery of liquidated damages on account of delay in supply.
The respondent issued instructions on 16 February 2016 to encash the warranty bank guarantee for Euro 201,793.75. Subsequently, sanction was accorded for recovery of liquidated damages, and on 26 September 2016 the relevant amount was deducted and credited into the Government account.
According to the petitioner, however, bilateral discussions continued between the parties in an attempt to amicably resolve the dispute.
Arbitration Clause Under Article 21
The contract contained a detailed dispute resolution mechanism under Article 21.
Article 21.1 required all disputes or differences arising out of or in connection with the contract to first be settled through bilateral discussions.
If the dispute could not be settled amicably, Article 21.2 contemplated reference to a three-member arbitral tribunal within the prescribed contractual framework. The seat of arbitration was to be New Delhi or another place in India mutually agreed between the parties, and the proceedings were to be governed by the Arbitration and Conciliation Act, 1996.
The petitioner relied heavily on this mandatory pre-arbitration negotiation clause to argue that limitation could not begin running until the bilateral discussions had effectively broken down.
Petitionerβs Case: Limitation Began Only When Negotiations Reached a βBreaking Pointβ
The petitioner contended that the contractual dispute resolution clause required the parties to attempt settlement through bilateral discussions before arbitration could be invoked.
It argued that although the bank guarantee was encashed in 2016, discussions continued thereafter, including communications and meetings, and that the real βbreaking pointβ occurred only later.
The petitioner relied on Geo Miller & Co. Pvt. Ltd. v. Chairman, Rajasthan Vidyut Utpadan Nigam Ltd. to contend that the period spent in bona fide settlement negotiations could, in an appropriate case, be excluded while calculating limitation.
The petitioner further argued that the Ministry of Defence’s communication dated 22 September 2017, declining reconsideration of its position, could be treated as the breaking point.
After the COVID limitation-extension orders were taken into account, the petitioner argued that its arbitration notice dated 8 November 2021 was still within time.
Ministry of Defenceβs Stand: Cause of Action Crystallised in September 2016
The Ministry of Defence opposed the petition on limitation.
Its position was that the dispute concerned deduction of liquidated damages through encashment of the bank guarantee and that the last deduction was made on 26 September 2016.
Accordingly, the cause of action arose on that date.
The petitioner, however, issued the arbitration notice only on 8 November 2021, more than five years later. The respondent therefore contended that both the underlying claims and the attempt to invoke arbitration were hopelessly time-barred.
Question Before the Supreme Court
The Court framed the central issue in substance as:
Can claims which are barred by limitation still be treated as βlive claimsβ capable of being referred to arbitration under Section 11(6)?
This required the Court to examine two distinct, though related, limitation questions:
limitation governing the underlying substantive claim; and
limitation governing the Section 11 application for appointment of an arbitrator.
The Court emphasised that these two questions should not be mixed up.
Section 11(6) Application and Article 137 of the Limitation Act
The Supreme Court noted that the Arbitration and Conciliation Act itself does not prescribe a specific limitation period for filing an application under Section 11(6).
Because such an application is filed before a High Court or the Supreme Court, the residual Article 137 of the Limitation Act, 1963 applies.
Article 137 prescribes a limitation period of three years from the date when the right to apply accrues.
The Court therefore reiterated that a Section 11 application must ordinarily be filed within three years from the point at which the right to seek appointment of an arbitrator first arises.
At the same time, the Court separately examined whether the underlying claim itself had already become dead or stale before arbitration was validly invoked.
Distinction Between Limitation of the Claim and Limitation of the Section 11 Petition
One of the most useful aspects of the judgment is its clear recognition that these are two separate legal questions.
The Supreme Court observed that there is a βfine distinctionβ between:
a plea that the claims themselves are barred by limitation; and
a plea that the application seeking appointment of an arbitrator is barred by limitation.
For practitioners, this distinction is essential.
A Section 11 application may technically be filed within three years of failure to appoint an arbitrator, yet the underlying substantive claims may already have become time-barred before the notice invoking arbitration was even issued.
In such cases, the Court is not necessarily bound to appoint an arbitrator merely because the Section 11 application itself was filed promptly.
Cause of Action and βCause of Arbitrationβ
The Court examined the concept of cause of action in detail.
It observed that the relevant question is when the claimant first acquired a legally enforceable right and could have successfully maintained an action.
For arbitration, the same principle applies: the cause of arbitration arises when the claimant acquires the right to require the dispute to be referred to arbitration.
The Court noted that an arbitration clause does not ordinarily postpone the substantive accrual of the cause of action. The limitation period runs from the point at which the underlying claim would have arisen had there been no arbitration clause.
Important Principle: A Party Cannot Revive a Dead Claim Through Correspondence
The Supreme Court reiterated a long-standing principle from Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority.
A dispute ordinarily arises when a claim is asserted by one party and denied or repudiated by the other. However, once the cause of action has accrued, a party cannot postpone limitation simply by continuing to write letters, representations or reminders.
The Court summarised the principle in clear terms: repeated correspondence and indefinite bilateral discussions do not save limitation once the cause of action has already arisen.
This is one of the most commercially important propositions in the judgment.
The βBreaking Pointβ Test from Geo Miller
The petitioner placed considerable reliance on Geo Miller, where the Supreme Court had recognised that in appropriate circumstances the time spent in bona fide settlement negotiations may be relevant to determining when limitation begins.
Under that line of reasoning, courts may examine the βbreaking pointβ at which a reasonable party would have abandoned settlement efforts and contemplated arbitration.
But the Supreme Court stressed that the benefit of this principle is not automatic.
The party relying on negotiations must specifically plead and place the entire negotiation history on record so that the Court can determine the actual breaking point.
A bare assertion that negotiations continued is insufficient.
Supreme Court Finds 2016 to Be the Real Breaking Point
On the facts of the case, the Supreme Court rejected the petitionerβs contention that negotiations in 2017 or 2019 postponed limitation.
The Court found that the decisive event was the actual encashment of the bank guarantee and recovery of liquidated damages in 2016.
It observed that the amount was finally deducted on 26 September 2016 and credited into the Government account. According to the Court, that was effectively βthe end of the matter.β
The Court therefore treated the 2016 action as the true breaking point for limitation.
It further observed that the respondent’s communication showed that the petitionerβs justification had already been considered and a final decision had been taken regarding encashment and liquidated damages.
Negotiations for 10 or 20 Years Cannot Suspend Limitation
The Court made a particularly strong observation on prolonged settlement discussions.
It held that negotiations may theoretically continue for ten years or even twenty years after a cause of action has arisen, but this does not mean limitation remains suspended throughout.
The statutory limitation period cannot be defeated merely because parties continue talking after the dispute has already crystallised.
This principle is especially relevant in commercial and government contracts, where parties frequently continue exchanging letters and attending meetings long after a final decision has been taken.
Reliance on BSNL v. Nortel Networks
The Supreme Court also relied significantly on Bharat Sanchar Nigam Ltd. v. Nortel Networks India Pvt. Ltd.
In Nortel, the Court had held that where claims are ex facie time-barred, a referral court may decline to appoint an arbitrator under Section 11.
The Court reiterated that mere correspondence or settlement discussions do not extend limitation where the claim had already been finally rejected or deductions had been made.
A valid Section 21 notice must therefore be issued within the applicable limitation period.
βEye of the Needleβ Test at the Section 11 Stage
The Court also discussed the narrow but meaningful scrutiny that a referral court may undertake under Section 11.
Referring to NTPC Ltd. v. SPML Infra Ltd. and Vidya Drolia v. Durga Trading Corporation, the Court noted that ordinarily the arbitral tribunal is the first authority to decide questions of non-arbitrability.
However, the referral court may reject a claim where it is manifestly and ex facie non-arbitrable, including where the claim is plainly dead or hopelessly barred by limitation.
The Court described this as the limited βeye of the needleβ scrutiny.
The Court should not conduct a full trial at the Section 11 stage, but neither should it mechanically send obviously dead disputes to arbitration.
Why Courts Need Not Refer Every Dispute to Arbitration
The judgment reiterates that the principle of minimal judicial interference does not mean that courts must automatically appoint arbitrators whenever an arbitration agreement exists.
Where there is not even a vestige of doubt that the claim is dead and non-arbitrable, the court can refuse reference.
The purpose is to avoid forcing parties into unnecessary arbitration where the outcome is foreclosed by a fundamental legal bar such as limitation, thereby saving both private and public resources.
Final Findings of the Supreme Court
The Supreme Court ultimately concluded that the claim had become hopelessly time-barred.
The key findings were:
the dispute had crystallised no later than 2016;
the bank guarantee had been encashed and the liquidated damages finally deducted;
continued negotiations thereafter did not suspend or restart limitation;
the petitioner had failed to establish a later legally relevant breaking point;
the arbitration notice was issued only in November 2021;
the petitioner had therefore slept over its rights for more than five years.
The Court accordingly rejected the arbitration petition.
Key Legal Principles Emerging from the Judgment
Issue
Supreme Court’s ruling
Section 11(6) limitation
Governed by Article 137 of the Limitation Act in the absence of a specific statutory period
Period under Article 137
Three years from when the right to apply first accrues
Underlying claim limitation
Separate from limitation governing the Section 11 petition
Cause of arbitration
Arises when the claimant acquires the right to require arbitration
Repeated letters/reminders
Do not postpone limitation once cause of action has accrued
Bilateral negotiations
Do not automatically stop or extend limitation
Geo Miller βbreaking pointβ
May be relevant only where the negotiation history is specifically pleaded and genuinely shows continuing bona fide settlement efforts
Final deduction / encashment
Can crystallise the dispute and cause of action
Court’s Section 11 scrutiny
Narrow, but it can reject manifestly dead or ex facie time-barred claims
Outcome
Arbitration petition rejected as hopelessly barred
Practical Impact on Commercial Contracts
The judgment carries an important warning for parties involved in long-running negotiations.
A party should not assume that limitation is protected merely because discussions are continuing.
Where a counterparty has already taken a final adverse step β such as:
rejecting a monetary claim;
deducting liquidated damages;
invoking or encashing a bank guarantee;
rejecting a final bill;
terminating a contract; or
unequivocally denying liability,
the cause of action may already have crystallised.
Parties should therefore calculate limitation independently of ongoing commercial discussions.
Practical Impact on Government Contracts
The decision is particularly relevant in public procurement, defence contracts, infrastructure contracts and EPC arrangements.
Government contracts often contain multi-tier dispute resolution mechanisms requiring negotiations before arbitration.
This judgment demonstrates that such clauses do not necessarily permit parties to keep limitation open indefinitely.
Where the Government has already taken a final and unequivocal action affecting the contractor’s rights, later representations to ministries or departments may not revive limitation.
Importance for Drafting Arbitration Clauses
The ruling also has implications for contract drafting.
Parties should clearly specify:
whether pre-arbitration negotiations are mandatory;
how long those negotiations may continue;
when the negotiation phase is deemed exhausted;
the time within which arbitration must be invoked thereafter; and
whether any internal decision is treated as final for triggering arbitration.
Vague clauses requiring βamicable discussionsβ without a defined timeline create uncertainty and litigation over when limitation actually began.
A properly drafted escalation clause can significantly reduce disputes over the breaking point.
Strategic Lesson for Claimants
Once a claim is denied or a significant adverse contractual action is taken, the safest approach is not to rely exclusively on commercial negotiations.
A claimant may continue settlement efforts while simultaneously protecting limitation by issuing a properly drafted notice invoking arbitration under Section 21 of the Arbitration and Conciliation Act, 1996, where appropriate.
The Supreme Courtβs judgment demonstrates the danger of assuming that repeated correspondence will keep the claim alive.
Conclusion
The Supreme Court’s judgment in M/s B and T AG v. Ministry of Defence reinforces a fundamental principle of arbitration law: arbitration is not a mechanism for reviving claims that have already become dead by limitation.
Although bona fide pre-arbitration negotiations may, in an appropriate factual situation, be relevant to determining when a dispute reached its breaking point, the mere continuation of discussions cannot suspend limitation indefinitely.
Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.
Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.
Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 09.09.2026
Delhi High Court Sets Aside Trademark Refusal: Composite Marks Containing Geographical Names Are Not Automatically Barred from Registration
This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .
The Delhi High Court in Abu Dhabi Global Market v. Registrar of Trade Marks, Delhi delivered an important ruling on the registrability of composite trademarks containing geographical names, while also strongly criticising the manner in which the Trade Marks Registry had dealt with the applicantβs response to the examination objections.
Justice C. Hari Shankar set aside the order of the Assistant Registrar refusing registration of the appellantβs device mark and remanded the application to the Trade Marks Registry for advertisement and further proceedings in accordance with law.
The judgment is especially significant for three propositions: a trademark need not be βcoinedβ or βinventiveβ to qualify for registration; evidence of prior use is not necessary to establish distinctiveness where an application is filed on a βproposed to be usedβ basis; and Section 9(1)(b) does not automatically prohibit registration of a composite mark merely because one element of the mark contains a geographical name.
Background of the Case
Abu Dhabi Global Market had filed Application No. 3184380 seeking registration of a composite device mark incorporating its logo together with the words βABU DHABI GLOBAL MARKET.β
The Assistant Registrar of Trade Marks rejected the application by order dated 9 December 2022.
The refusal was broadly based on three objections:
the mark was allegedly neither βcoinedβ nor βinventedβ;
the applicant had not established distinctiveness by filing an affidavit evidencing use of the mark; and
βAbu Dhabiβ was a geographical name and the mark as a whole was allegedly non-distinctive and incapable of monopolisation.
The appellant challenged these findings before the Delhi High Court.
Appellantβs Case
Counsel for Abu Dhabi Global Market argued that none of the grounds relied upon by the Trade Marks Registry could survive either on facts or in law.
One important submission was that the appellantβs logo already stood registered in its favour. According to the appellant, this demonstrated that the Registry had itself recognised the distinctiveness of the device element.
The appellant argued that the mark could not suddenly lose its distinctiveness merely because the words βABU DHABI GLOBAL MARKETβ were placed beneath the logo.
The appellant also explained that the trading name βAbu Dhabi Global Marketβ was not an arbitrary descriptive expression. It had been adopted under Federal Decree No. 15 of 2013 dated 11 February 2013, issued in the name of the President of the United Arab Emirates, which provided for establishment of a financial free zone under the name βAbu Dhabi Global Market.β
Can a Trademark Be Refused Merely Because It Is Not βCoinedβ or βInventiveβ?
The Delhi High Court emphatically answered this question in the negative.
The Court observed that the grounds for refusal of registration are contained in Sections 9 and 11 of the Trade Marks Act, 1999, and these provisions are comprehensive in that regard.
The Court found no statutory requirement that a trademark must necessarily be βcoinedβ or βinventiveβ in order to qualify for registration.
Justice Hari Shankar drew an important conceptual distinction:
Distinctiveness is required for trademark registration; inventiveness is not.
Inventiveness is a concept associated with patent and design law, whereas trademark law focuses upon whether a mark is capable of distinguishing the goods or services of one person from those of another.
The Court therefore held that the Assistant Registrar could not lawfully refuse registration simply because the mark was allegedly not coined or inventive.
Trademark Law Is About Distinctiveness, Not Inventiveness
This aspect of the judgment is commercially important.
A business does not need to create a completely new word in order to obtain trademark protection.
Many trademarks are made up of ordinary words, surnames, geographical references, symbols, logos or combinations of these elements.
What matters under Section 9(1)(a) is whether the mark is capable of functioning as a badge of origin β that is, whether it can distinguish the applicantβs goods or services from those of other traders.
The Court therefore rejected an approach that imported patent-law concepts of novelty or inventiveness into trademark examination.
Trade Name Was Backed by UAE Federal Decree
The Court additionally found that even factually the objection regarding the name being neither coined nor invented was unjustified.
The appellant had specifically explained that the name βABU DHABI GLOBAL MARKETβ had been adopted pursuant to Federal Decree No. 15/2013.
The Court noted that this explanation had already been placed before the Trade Marks Registry in the appellantβs reply to the First Examination Report, but the impugned order made no reference to it.
This omission later became part of the Courtβs wider criticism concerning non-application of mind by the Registry.
No Affidavit of Use Required for a βProposed to Be Usedβ Application
The second major ground of refusal was the absence of an affidavit establishing use of the mark.
The Delhi High Court rejected this objection as well.
The appellantβs application had been filed on a βproposed to be usedβ basis.
The Court observed that there was no lawful basis for linking distinctiveness with evidence of actual prior use in such circumstances.
Justice Hari Shankar stated that the Assistant Registrar had confused distinctiveness with actual user of the mark.
The Court went further and explained that if evidence of use were always required to establish distinctiveness, it would become impossible to register any trademark on a proposed-to-be-used basis.
Such an interpretation would directly conflict with the statutory scheme.
What Does βDistinctivenessβ Mean Under Section 9(1)(a)?
Section 9(1)(a) concerns marks which are devoid of distinctive character, namely marks that are not capable of distinguishing the goods or services of one person from those of another.
The High Court stressed that the proper legal inquiry is therefore:
Is the mark capable of distinguishing the applicantβs goods or services from those of another person?
It is not enough merely to say that a mark has not yet been used.
The Court found that the impugned order contained no finding that the Abu Dhabi Global Market mark was actually incapable of performing this distinguishing function.
Existing Registration of the Logo Was Relevant
The Court also noted that the logo forming part of the composite mark already stood registered in favour of the appellant.
This meant that the Registry had already recognised the distinctiveness of the logo.
The Court accepted the appellantβs contention that adding the words βABU DHABI GLOBAL MARKETβ beneath an already distinctive logo did not, by itself, destroy the distinctiveness of the mark.
Geographical Names and Section 9(1)(b)
The third major issue concerned the presence of the words βAbu Dhabiβ.
The Trade Marks Registry had treated the expression as problematic because Abu Dhabi is the capital of the United Arab Emirates and therefore a geographical name.
The Delhi High Court closely analysed Section 9(1)(b) of the Trade Marks Act.
The provision bars registration of marks which consist exclusively of signs or indications which may serve in trade to designate, among other things, the geographical origin of goods or services.
The word βexclusivelyβ became decisive.
Composite Marks Are Outside the Automatic Bar of Section 9(1)(b)
The Court held that Section 9(1)(b) does not automatically prohibit every mark containing a geographical reference.
The statutory prohibition applies where the mark consists exclusively of matter indicating geographical origin.
A composite mark incorporating other elements stands on a different footing.
The Court held that:
Composite marks are ipso facto outside the scope of Section 9(1)(b) merely on the basis that one component may refer to geographical origin.
In the present case, the mark was not simply the geographical expression βAbu Dhabi.β
It consisted of the words βABU DHABI GLOBAL MARKETβ together with a distinctive logo.
The Court therefore concluded that Section 9(1)(b), by its very terms, could not automatically apply to such a composite mark.
βDominant Partβ Test Has No Role Under Section 9(1)(b)
The Registrar attempted to argue that βAbu Dhabiβ was the dominant part of the mark, and therefore the Section 9 objection should still survive.
The Court rejected this argument in categorical terms.
Justice Hari Shankar held that the βdominant partβ principle is alien to Section 9(1)(b).
That doctrine may be relevant in infringement litigation when courts compare competing trademarks and determine whether the dominant components are deceptively similar.
But Section 9(1)(b) contains the statutory word βexclusively.β
Accordingly, the Court held that the dominant-part doctrine could not override the express statutory requirement of exclusivity.
This is one of the strongest doctrinal aspects of the ruling.
Registration Proceedings and Infringement Proceedings Are Different
The judgment usefully distinguishes between two trademark-law exercises:
Registration analysis under Section 9, and infringement analysis involving comparison of rival marks.
In infringement cases, courts may examine dominant or essential features of rival marks.
But while applying Section 9(1)(b), the focus is on whether the mark as a whole consists exclusively of prohibited descriptive or geographical matter.
The two tests cannot be indiscriminately mixed.
Court Criticises the Trade Marks Registry for Non-Application of Mind
The judgment also contains unusually strong observations regarding administrative decision-making by the Trade Marks Registry.
The Court first referred to one sentence in the refusal order stating:
βThe attorney failed to establish the Identity of the mark in applied class.β
Justice Hari Shankar observed that the sentence was incomprehensible and that even counsel appearing for the Registrar was unable to explain what it meant.
The Court therefore held that an incomprehensible sentence could obviously not constitute a lawful ground for rejecting a trademark application.
Detailed FER Replies Cannot Simply Be Ignored
The Court noted that after issuance of the First Examination Report dated 16 September 2016, the appellant had filed an extensive response consisting of 11 pages and 23 paragraphs, which together with accompanying documents ran into more than 100 pages.
Yet the impugned order appeared not to have considered that response meaningfully.
Justice Hari Shankar strongly observed that applicants do not file detailed responses to examination reports βfor the sake of fun.β
The Court stated that the least expected from the quasi-judicial officer deciding the application is to read the response and apply their mind to the submissions.
Trade Marks Registrar Exercises Quasi-Judicial Functions
The Court characterised the manner in which the application had been decided as a complete abdication of quasi-judicial functions vested under the Trade Marks Act and Rules.
It further observed that the impugned decision effectively reduced Section 18(5) of the Trade Marks Act to redundancy.
This aspect of the judgment has significance beyond the particular mark involved.
Trademark examination and hearing orders must be:
reasoned;
intelligible;
responsive to the applicantβs submissions; and
based on the statutory grounds actually available under the Trade Marks Act.
A formulaic refusal unsupported by reasoning is vulnerable to challenge.
Delhi High Courtβs Final Order
The High Court ultimately held that none of the grounds relied upon by the Assistant Registrar could survive.
The order dated 9 December 2022 was consequently quashed and set aside.
The Court remanded Application No. 3184380 dated 11 February 2016 to the Trade Marks Registry with a direction that it proceed to advertisement and subsequent proceedings in accordance with the Trade Marks Act and the Trade Marks Rules.
Importantly, therefore, the High Court did not itself finally register the mark. It removed the unlawful refusal and directed the application to proceed through the statutory registration process.
Key Legal Principles Emerging from the Judgment
Issue
Delhi High Courtβs Finding
Must a trademark be βcoinedβ?
No
Must a trademark be βinventiveβ?
No
Relevant trademark requirement
Distinctiveness, not inventiveness
Proposed-to-be-used application
Prior-use affidavit is not necessary merely to establish distinctiveness
Meaning of distinctiveness
Capability of distinguishing one personβs goods/services from anotherβs
Geographical name in a mark
Does not automatically bar registration
Section 9(1)(b)
Applies to marks consisting exclusively of prohibited descriptive/geographical indications
Composite geographical mark
Not automatically barred merely because one part is geographic
Dominant-part doctrine
Not applicable to overcome the word βexclusivelyβ in Section 9(1)(b)
Registryβs duty
Must meaningfully consider replies and give reasoned decisions
Final result
Refusal quashed; application remanded for advertisement and further proceedings
Why This Judgment Matters for Trademark Applicants
The ruling is particularly useful for businesses seeking protection for marks containing:
city names;
country names;
regional names;
geographical references;
institutional names; or
combinations of geographical words with logos or other distinctive elements.
The mere presence of a geographical expression does not necessarily make a mark unregistrable.
The correct analysis must examine the mark as a whole and the exact language of Section 9(1)(b).
Importance for International Businesses Entering India
The judgment is also relevant for foreign governmental bodies, free zones, financial centres, international institutions and multinational enterprises seeking trademark protection in India.
Names of foreign institutions frequently incorporate geographical identifiers.
If every composite institutional mark containing a city or country name were automatically rejected, many established global trade names would face unnecessary barriers in India.
The decision confirms that Indian trademark law requires a more nuanced statutory analysis.
Important Distinction: βAbu Dhabiβ Versus βAbu Dhabi Global Market + Logoβ
The judgment can be understood through a simple distinction.
A mark consisting solely of a geographical expression such as βABU DHABIβ may raise a different Section 9(1)(b) analysis.
But the application before the Court was for a composite device mark, consisting of:
a logo + the words βABU DHABI GLOBAL MARKET.β
The Court was therefore required to examine the entire composite mark rather than isolate one component and treat that isolated component as determinative.
This is why the statutory word βexclusivelyβ assumed such importance.
Practical Takeaways for Trademark Practitioners
For trademark attorneys and applicants, the judgment offers several useful lessons.
When responding to an examination report involving Section 9 objections, the response should clearly demonstrate:
the composite nature of the mark;
the distinctive graphical or device elements;
whether any existing registrations already recognise distinctiveness;
the factual origin of the trade name;
whether the application is on a proposed-to-be-used basis;
why proof of prior use is therefore unnecessary;
why the mark does not consist exclusively of geographical or descriptive matter; and
why the mark as a whole is capable of distinguishing the applicantβs goods or services.
The decision also provides a strong basis for challenging refusals that mechanically invoke Section 9 without examining the statutory wording.
Administrative Law Significance of the Judgment
Beyond trademark law, the decision reflects fundamental principles of administrative and quasi-judicial decision-making.
Where a statutory authority receives a detailed reply, it must meaningfully engage with the response.
A decision should demonstrate:
application of mind, intelligible reasoning, consideration of relevant material and reliance upon legally recognised grounds.
An authority cannot simply reproduce objections from an examination report and reject an application without addressing the applicantβs answers.
This aspect of the judgment strengthens procedural fairness in intellectual-property administration.
Broader Impact on Section 9 Jurisprudence
The ruling provides useful clarity on the relationship between Sections 9(1)(a) and 9(1)(b).
Section 9(1)(a) deals with lack of distinctive character.
Section 9(1)(b) addresses marks consisting exclusively of descriptive or geographical indications.
The two provisions should not be conflated.
A geographical component does not automatically establish lack of distinctiveness, particularly where the mark contains other distinctive features.
Similarly, absence of prior use does not establish non-distinctiveness in a proposed-to-be-used application.
Conclusion
The Delhi High Courtβs judgment in Abu Dhabi Global Market v. Registrar of Trade Marks, Delhi is an important authority on the registration of composite trademarks under the Trade Marks Act, 1999.
The Court clarified that trademarks need not be coined or inventive, that actual use is not a prerequisite to distinctiveness in a proposed-to-be-used application, and that a composite mark containing a geographical name is not automatically barred under Section 9(1)(b).
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