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  • Delhi High Court Sets Aside Rejection of β€œELMENTIN” Trademark; Says Phonetic Similarity Must Be Assessed by Look, Sound and Surrounding Circumstances

    Delhi High Court Sets Aside Rejection of β€œELMENTIN” Trademark; Says Phonetic Similarity Must Be Assessed by Look, Sound and Surrounding Circumstances

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 17.09.2026

    Delhi High Court Sets Aside Rejection of β€œELMENTIN” Trademark; Says Phonetic Similarity Must Be Assessed by Look, Sound and Surrounding Circumstances

    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 the Trade Marks Registry’s refusal to register the pharmaceutical word mark β€œELMENTIN”, holding that it could not be regarded as phonetically similar to the earlier registered mark β€œELEMENTAL” merely because both marks related to medicinal and pharmaceutical products.

    In Elyon Pharmaceuticals Pvt. Ltd. v. The Registrar of Trademarks, C.A.(COMM.IPD-TM) 153/2021, Justice C. Hari Shankar held that ELMENTIN and ELEMENTAL have distinctly different sounds, syllabic structures and meanings. The Court also observed that differences in the pharmaceutical composition of competing products may constitute an additional mitigating factor while assessing likelihood of confusion.

    Trademark Registry Had Rejected β€œELMENTIN”

    • Elyon Pharmaceuticals Pvt. Ltd. had filed Application No. 2668081 seeking registration of the word mark β€œELMENTIN” for a pharmaceutical composition containing Amoxycillin and Clavulanic Acid.
    • The Examiner of Trade Marks rejected the application by an order dated August 27, 2018, invoking Section 11(1)(b) of the Trade Marks Act, 1999.
    • The objection was based on an earlier registered trademark, β€œELEMENTAL”, registered in favour of Juggat Pharma Pvt. Ltd. for medicinal and pharmaceutical preparations in Class 5. The Registry considered ELMENTIN deceptively similar to ELEMENTAL and found a potential likelihood of confusion.
    • Elyon Pharmaceuticals challenged the rejection before the Delhi High Court.

    Elyon Pharmaceuticals: ELMENTIN and ELEMENTAL Sound Different

    • Counsel for Elyon Pharmaceuticals argued that the two marks could not properly be regarded as phonetically similar and, therefore, the basis for refusing registration was unsustainable.
    • The Registrar defended the decision, arguing that the phonetic difference between the two expressions was minimal and that ELEMENTAL already stood registered for medicinal and pharmaceutical preparations in the same class.
    • After examining the rival contentions, however, the High Court disagreed with the Registry.

    Delhi HC: The Two Words Have β€œDistinctly Different Sounds”

    • Justice Hari Shankar observed that, when properly articulated, ELMENTIN and ELEMENTAL have distinctly different sounds.
    • The Court specifically noted that even the concluding syllables of the two expressions were different.
    • This distinction was important because trademark similarity cannot be determined merely by identifying common letters or portions of competing marks. The marks must be considered from the perspective of their overall visual and phonetic impression and the circumstances in which consumers encounter them.

    Court Applies the Classic β€œPianotist” Test

    • The Delhi High Court relied upon the well-established test laid down in In re Pianotist Co.’s Application, [1906] 23 RPC 774.
    • Under that approach, competing marks must be assessed by considering their look and sound, the goods to which they are applied, the nature of likely consumers, the surrounding circumstances and what is likely to happen if both marks are used normally in the marketplace.
    • The Court noted that the Pianotist test had received approval from the Supreme Court in Amritdhara Pharmacy v. Satya Deo Gupta, AIR 1963 SC 449, and Khoday Distilleries v. Scotch Whisky Association, (2008) 10 SCC 723.

    β€œELMENTIN” Is a Coined Word; β€œELEMENTAL” Is an Ordinary English Expression

    • Applying that test, the Court found substantial differences between the marks.
    • β€œELEMENTAL” was described as a word of common English usageβ€”an adjective associated with β€œelement” and synonymous with β€œfundamental.”
    • β€œELMENTIN,” on the other hand, was a coined expression having no etymological meaning.
    • The Court also compared the syllabic structures. ELMENTIN contains three syllables, while ELEMENTAL contains four. Their concluding syllables were also different.
    • These distinctions led the Court to conclude that it was difficult to sustain the Examiner’s finding that use of the two marks for pharmaceutical preparations was likely to confuse the public.

    Coined and Arbitrary Marks Entitled to Greater Protection

    • The Court further observed that ELMENTIN, being a meaningless, arbitrary and coined word, was entitled to additional trademark protection.
    • For this proposition, the judgment referred to Kirorimal Kashiram Marketing & Agencies Ltd. v. Shree Sita Chawal Udyog Mill, (2010) 44 PTC 293 (DB), and South India Beverages Pvt. Ltd. v. General Mills Marketing Inc., (2015) 61 PTC 231 (DB).
    • The ruling therefore reinforces the significance of invented or arbitrary terminology when examining distinctiveness and competing trademark claims.

    Different Pharmaceutical Compositions Can Reduce Likelihood of Confusion

    • One of the most significant observations in the judgment concerns the composition of pharmaceutical products.
    • The High Court noted that the record did not establish whether the pharmaceutical composition sold under the earlier ELEMENTAL mark was the same as the composition for which Elyon Pharmaceuticals sought registration of ELMENTIN.
    • Justice Hari Shankar observed that if the two pharmaceutical compositions were different, that would constitute an additional mitigating factor against the likelihood of confusion among the public.
    • The observation is important because it indicates that the likelihood-of-confusion inquiry in pharmaceutical trademarks is not necessarily confined to comparing the words in isolation. The nature and composition of the underlying products may also be relevant to the overall factual assessment.

    Section 11(1)(b) Rejection Set Aside

    • Section 11(1)(b) of the Trade Marks Act deals with situations where similarity with an earlier trademark, coupled with identity or similarity of the relevant goods or services, creates a likelihood of confusion on the part of the public, including likelihood of association with the earlier mark.
    • After applying the phonetic, visual and contextual comparison, the High Court held that the Examiner’s conclusion that ELMENTIN was disentitled to registration because of the pre-existing ELEMENTAL mark could not be sustained.
    • The rejection order was accordingly set aside.

    Application Remanded to Trade Marks Registry for Fresh Consideration

    • Importantly, the Delhi High Court did not itself finally order registration of ELMENTIN.
    • Instead, Application No. 2668081 was remitted to the concerned officer of the Trade Marks Registry for de novo consideration.
    • The Registry was directed to consider the application on its own merits, but it was specifically restrained from rejecting the application on the grounds contained in Sections 11(1)(a) or 11(1)(b) of the Trade Marks Act.
    • The appeal was accordingly allowed to that extent, with no order as to costs.

    Cases Referred to by the Delhi High Court

    The judgment expressly refers to four authorities while explaining the applicable principles of trademark comparison:

    1. In re Pianotist Co.’s Application, [1906] 23 RPC 774 β€” the classic test requiring marks to be compared by look, sound, goods, consumers and surrounding circumstances.
    2. Amritdhara Pharmacy v. Satya Deo Gupta, AIR 1963 SC 449 β€” Supreme Court approval of the Pianotist approach.
    3. Khoday Distilleries v. Scotch Whisky Association, (2008) 10 SCC 723 β€” also cited as approving the Pianotist standard.
    4. Kirorimal Kashiram Marketing & Agencies Ltd. v. Shree Sita Chawal Udyog Mill, (2010) 44 PTC 293 (DB), and South India Beverages Pvt. Ltd. v. General Mills Marketing Inc., (2015) 61 PTC 231 (DB) β€” relied upon concerning protection available to arbitrary and coined marks.

    Why the Judgment Matters for Pharmaceutical Trademarks

    • The ruling provides a useful framework for examination of allegedly similar pharmaceutical marks. It indicates that similarity should not be determined simply because two marks share some letters or are registered in the same class.
    • Instead, the decision requires consideration of the overall appearance, pronunciation, syllabic structure, meaning, nature of the products, relevant consumers and surrounding commercial circumstances.
    • It is equally important that the Court did not treat different pharmaceutical compositions as automatically eliminating confusion. Rather, it described such difference as an additional mitigating factor, meaning it forms part of the broader likelihood-of-confusion assessment.

    Key Takeaway

    The Delhi High Court’s ruling establishes that ELMENTIN could not be refused merely on the ground that it was allegedly phonetically similar to ELEMENTAL.

    The Court found meaningful differences in sound, syllables, meaning and overall impression and set aside the Section 11(1)(b) rejection. At the same time, the judgment should not be read as a final grant of trademark registration.

    The application was sent back to the Registry for fresh consideration on its own merits, subject to the Court’s direction that it could not again be rejected under Sections 11(1)(a) or 11(1)(b).

    Connected Matter

    Gujarat High Court: Trademark Application Cannot Be Denied Advertisement Merely Due to Section 11(1) Objection

    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.

    Source: Delhi High Court

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  • CESTAT Mumbai: Vitamin and Enzyme Premixes for Animal Feed Classifiable Under CTH 2309

    CESTAT Mumbai: Vitamin and Enzyme Premixes for Animal Feed Classifiable Under CTH 2309

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 17.09.2026

    CESTAT Mumbai: Vitamin and Enzyme Premixes for Animal Feed Classifiable Under CTH 2309

    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 ruled in favour of DSM Nutritional Products India Pvt. Ltd. in a long-running customs classification dispute, holding that imported vitamin premixes and enzyme preparations meant for use in animal feeding are classifiable under Customs Tariff Heading (CTH) 2309, and not under CTH 2936 or CTH 3507 as contended by Customs.

    A Division Bench comprising S.K. Mohanty, Member (Judicial), and M.M. Parthiban, Member (Technical) set aside the May 8, 2024 order of the Commissioner of Customs (Appeals), JNCH, Nhava Sheva, and allowed Customs Appeal Nos. 87088 to 87126 of 2024 with consequential relief. The final order was pronounced on September 11, 2026.

    The ruling is significant for the tariff classification of feed-grade vitamin and enzyme premixes, particularly where such products contain active ingredients along with carriers, fillers, stabilisers, anti-caking agents and other substances specifically designed for animal-feed applications.

    DSM Imported Vitamin and Enzyme Premixes for Animal Feeding

    • DSM Nutritional Products India imported preparations containing vitamins and enzymes from its related overseas supplier, DSM Nutrients Asia Pacific Private Limited, Singapore.
    • The imports included a range of Rovimix vitamin premixes and Ronozyme enzyme preparations, which were intended for use in preparation of animal feed.
    • DSM classified these products under CTH 2309, covering preparations of a kind used in animal feeding.
    • Because the overseas supplier was a related party, the assessments had remained provisional since October 2010. The Special Valuation Branch subsequently concluded in 2016 that the relationship had not influenced the declared import price.

    Customs Sought Classification Under Chapters 29 and 35

    • The dispute arose after the Central Intelligence Unit and Special Investigation & Intelligence Branch examined the classification adopted by DSM.
    • Customs took the position that the vitamin and vitamin premixes should be classified under CTH 2936, while enzyme preparations should fall under CTH 3507, instead of Heading 2309.
    • Consequently, provisional assessments covering imports from October 2010 to December 2020 remained pending.
    • DSM repeatedly sought finalisation of the assessments and refund of pre-deposits/Extra Duty Deposits. When the matter remained unresolved, it approached the Bombay High Court in Writ Petition No. 3323 of 2021. The High Court directed Customs to finalise the provisional assessments.

    Customs Finalised Assessments Against DSM

    • The Assistant Commissioner of Customs eventually passed an Order-in-Original dated September 22, 2023 rejecting DSM’s classification under CTH 2309.
    • The authority classified the vitamin products under CTH 2936 and enzyme products under CTH 3507, finalised the assessments under Section 18(2) of the Customs Act, 1962, demanded differential customs duty with interest and ordered appropriation against deposits already made by DSM.
    • Interestingly, the Tribunal recorded that the exact amount of duty demanded, confirmed or appropriated was not mentioned in the operative portion of the original order.
    • The Commissioner (Appeals) subsequently upheld the classification adopted by the original authority and dismissed DSM’s appeals, leading to the proceedings before CESTAT.

    DSM: Products Are Exclusively Intended for Animal Feed

    • DSM argued that the disputed vitamin and enzyme premixes were exclusively intended for animal feeding and were not used for human consumption.
    • The preparations contained vitamins or enzymes as active ingredients together with carriers, fillers, anti-caking agents, stabilisers and other additives selected keeping their animal-feed end use in view.
    • DSM further used these imported premixes to manufacture composite premixes containing vitamins, minerals, enzymes and other ingredients, which were also intended exclusively for animal feeding.
    • DSM therefore relied heavily on the Larger Bench decision in Tetragon Chemie (P) Ltd. v. Collector of Central Excise, Bangalore, 2001 (138) E.L.T. 414 (Tri.-LB), which had held that premixes of the relevant nature used in animal feeding fall under the animal-feed heading. That ruling was upheld by the Supreme Court when the Revenue’s appeal was dismissed.

    Earlier Venkateshwara B.V. Bio Corp Ruling Became Crucial

    • A particularly important aspect of DSM’s case was the Tribunal’s earlier ruling in Venkateshwara B.V. Bio Corp Private Limited v. Commissioner of Customs (NS-I), (2025) 26 Centax 283 (Tri.-Bom.).
    • DSM argued that the classification dispute in Venkateshwara was virtually identical, arose from the same investigation and even involved the same overseas supplier, DSM Nutritional Products Asia Pacific Pte. Ltd., Singapore.
    • In that case, CESTAT had classified the imported products under CTI 2309 9090. Customs challenged that ruling before the Supreme Court, but its appeal was dismissed on February 7, 2025.
    • The Supreme Court order reproduced on page 10 of the CESTAT judgment records that it found no good ground to interfere with the Tribunal’s decision, particularly in light of Circular No. 188/22/96-CX dated March 26, 1996, and dismissed the Revenue’s appeal.

    Core Issue Before CESTAT: CTH 2309 vs 2936/3507

    • The Tribunal framed the principal issue as whether the imported vitamin premixes and enzyme preparations for feed/animal grade were classifiable under CTI 2309 9020 as claimed by DSM, or whether vitamins should be classified under CTH 2936 and enzymes under CTH 3507 as determined by Customs.
    • Customs had reasoned that vitamins and enzymes had specific tariff headings and that a specific classification should prevail over what it regarded as the more general or residual animal-feed heading.
    • The Commissioner (Appeals) had relied substantially upon Rule 3(a) of the General Rules for Interpretation and the ingredients of the imported products in concluding that vitamins belonged under 2936 and enzyme preparations under 3507.

    CESTAT Finds Customs Order Legally Deficient

    • The Tribunal was not persuaded by that approach.
    • It observed that neither the Commissioner (Appeals) nor the original authority had undertaken a sufficiently detailed examination of the scope of the competing tariff headings and the relevant HSN Explanatory Notes.
    • According to CESTAT, a comprehensive classification exercise under the Customs Tariff Act, 1975 required proper examination of the competing entries rather than merely proceeding on the premise that Chapters 29 and 35 contained more specific descriptions.
    • The Tribunal therefore found, even at the preliminary level of its analysis, that the impugned appellate order was not sustainable.

    Larger Bench in Tetragon Chemie Supports Heading 2309

    • CESTAT then relied on the Larger Bench ruling in Tetragon Chemie.
    • That decision had considered the specific question whether preparations used in animal feeding consisting of one or more vitamins mixed with diluents should be classified under the vitamin heading or under the animal-feed heading.
    • The Larger Bench concluded that premixes containing mineral substances, vitamins or provitamins, trace elements, appetisers, soya flour or meal, yeast and similar ingredients were covered by Heading 23.09 of the HSN, corresponding to the relevant animal-feed heading in the Central Excise Tariff.
    • The Larger Bench ultimately answered the classification issue in favour of the assessees.
    • CESTAT noted that this decision was upheld by the Supreme Court in 2001 (132) E.L.T. 525 (S.C.).

    Indian Trading Bureau Decision Also Favoured Animal-Feed Classification

    • The Mumbai Bench further referred to Indian Trading Bureau Private Limited v. Commissioner of Customs (Port), Kolkata, 2024 (2) TMI 1030 – CESTAT Kolkata.
    • In that case, vitamins and enzymes used as animal-feed additives were classified under CTH 2309 rather than the competing tariff heading asserted by Revenue.
    • The decision emphasised the product literature showing that the goods were part of animal feed and were not fit for human consumption.
    • The Revenue’s appeal against that decision was also dismissed by the Supreme Court.

    CESTAT: DSM’s Case Identical to Venkateshwara Classification Dispute

    • The Tribunal found the classification dispute in DSM’s appeals to be identical to the issue already considered in Venkateshwara B.V. Bio Corp.
    • It noted that the overseas supplier in the present case was also one of the suppliers involved in that earlier dispute.
    • The Venkateshwara decision had examined the Customs Tariff Act, General Rules for Interpretation, competing tariff headings 2309 and 2936, HSN Explanatory Notes and CBEC Circular No. 188/2/96-CX dated March 26, 1996.
    • That decision had concluded that the disputed goods were classifiable under CTH 2309 and not CTH 2936, and the Supreme Court subsequently declined to interfere with the Tribunal’s decision.

    Vitamin and Enzyme Feed Preparations Classifiable Under CTH 2309

    • On the basis of these authorities and its own analysis, the Mumbai Bench concluded that DSM’s imported goods were properly classifiable under CTH 2309 of the First Schedule to the Customs Tariff Act, 1975.
    • The Tribunal expressly held that the May 8, 2024 appellate order sustaining classification under CTH 2936 and CTH 3507 did not withstand legal scrutiny and was legally unsustainable.
    • This finding resolved the substantive classification dispute in DSM’s favour.

    DSM Nutritional Products Wins 39 Customs Appeals

    • CESTAT accordingly set aside the impugned Order-in-Appeal and allowed DSM Nutritional Products India’s appeals, together with consequential relief, if any, in accordance with law.
    • The ruling therefore represents a substantive victory for DSM on tariff classification: its animal-feed vitamin and enzyme preparations were held classifiable under Heading 2309, rather than being split between the vitamin and enzyme headings in Chapters 29 and 35.

    Key Legal Takeaway

    The decision reinforces an important classification principle for feed-grade preparations: the presence of vitamins or enzymes as active ingredients does not, by itself, necessarily require classification of the finished preparation under the standalone vitamin or enzyme headings.

    The nature of the preparation, its composition, HSN guidance, relevant tariff notes, established judicial precedent and its exclusive design and use in animal feeding must all be considered.

    The ruling is particularly important because CESTAT found the dispute materially covered by previous decisionsβ€”including Tetragon Chemie and Venkateshwara B.V. Bio Corpβ€”whose outcomes had survived Revenue challenges before the Supreme Court.

    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.

    Source: CESTAT Mumbai

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  • Gujarat HC: Dissenting Members Cannot Override Majority Decision on Redevelopment Without Showing Illegality

    Gujarat HC: Dissenting Members Cannot Override Majority Decision on Redevelopment Without Showing Illegality

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 17.09.2026

    Gujarat HC: Dissenting Members Cannot Override Majority Decision on Redevelopment Without Showing Illegality

    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 id amitnaren@outlook.com .  

    The Gujarat High Court has upheld the redevelopment of a 96-unit cooperative housing society, holding that 15 dissenting members cannot be permitted to stall a redevelopment process supported by more than 75% of the members merely on the basis of their suspicions and apprehensions, particularly when no fraud or violation of the prescribed redevelopment procedure has been established.

    A Division Bench comprising Chief Justice Sunita Agarwal and Justice Aniruddha P. Mayee, in Rabari Tejmalbhai Gagabhai & Ors. v. Ratnamani Co-operative Housing Society Ltd. & Ors., Letters Patent Appeal No. 1427 of 2023, dismissed the appeal against the Single Judge’s order permitting the society to proceed with redevelopment subject to compliance with Section 41A of the Gujarat Ownership Flats Act, 1973 and the applicable Rules.

    The ruling is significant for redevelopment disputes involving a small group of dissenting members after the statutory majority has approved redevelopment.

    96-Unit Society Decided to Undertake Redevelopment

    • Ratnamani Co-operative Housing Society Ltd. consisted of 96 residential units, for which development permission had originally been granted on May 21, 1981.
    • The redevelopment process began with a society meeting held on February 25, 2019, where members considered the condition of the structure and modern requirements and resolved that redevelopment was necessary.
    • The society subsequently resolved to invite offers from developers and published an advertisement on May 5, 2019.
    • An offer from Suryam Developers was initially finalised in August 2019. The society thereafter considered another offer from Respondent No. 3, which was considered more favourable.
    • Following discussions and modifications, the final offer of Respondent No. 3 was accepted on March 30, 2021.

    81 Out of 96 Members Ultimately Supported Redevelopment

    • At an Annual General Meeting held on October 19, 2021, the majority decided to enter into a Memorandum of Understanding with the selected developer and consent to redevelopment. Seventy-six members attended and signed the resolution.
    • By December 20, 2021, 72 members had entered into the MOU with the developer. With the passage of time, the number of consenting members increased to 81 out of 96, representing approximately 84.37% of the total membership.
    • This figure was important because Section 41A requires consent of not less than 75% of the flat owners for redevelopment.

    15 Dissenting Members Challenged the Redevelopment

    • The appellants were 15 members of the society who opposed the redevelopment.
    • They contended, among other things, that the building was not actually dilapidated and relied upon an alternative structural engineer’s report. They also questioned the financial capacity of the selected developer and alleged that the redevelopment procedure prescribed under the Gujarat Ownership Flats Act and Rules had not been properly followed.
    • According to them, the Ahmedabad Municipal Corporation had only required repairs and had not specifically directed redevelopment.
    • The society, on the other hand, submitted that the formal Development Agreement had not yet been executed and that any concerns regarding its terms or the developer’s obligations could be addressed at the appropriate stage. It also pointed out that construction would have to comply with applicable laws, including the Real Estate (Regulation and Development) Act, 2016.

    Section 41A Permits Redevelopment With 75% Consent

    • The Division Bench examined Section 41A of the Gujarat Ownership Flats Act, 1973, which governs redevelopment of flats and apartments.
    • Under Section 41A, redevelopment can be undertaken after obtaining consent from not less than 75% of the flat owners, provided the statutory conditions are satisfied.
    • The provision applies where either 25 years have elapsed from the date on which development permission was issued by the concerned authority, or the concerned authority has declared the building ruinous, likely to fall or otherwise dangerous.
    • The Court also examined Rules 18 to 25 of the Gujarat Ownership Flats Rules, 1974, as amended by the December 26, 2019 notification, which prescribe the procedure for carrying out redevelopment.

    Gujarat HC Identifies Three Statutory Conditions for Redevelopment

    • After examining Section 41A and the Rules, the Division Bench identified the relevant conditions governing redevelopment: completion of 25 years from development permission, or the building being declared ruinous/dilapidated or dangerous by the competent authority, together with consent of not less than 75% of the members.
    • On the facts of the case, the Court found that the relevant statutory requirements had been satisfied.
    • The Court specifically recorded that more than 75% of the members had agreed to redevelopment and that there was no dispute regarding the date on which the original development permission had been granted.

    Court Declines to Reassess Competing Structural Reports

    • One of the dissenting members’ principal objections concerned the physical condition of the building.
    • The Single Judge had considered a Civil Engineer’s report dated August 28, 2019 stating that the structure was fragmented and dilapidated. The dissenting members produced another structural engineer’s report to contest that conclusion.
    • The High Court held that it was not appropriate for the Court to enter into the technical domain and function as an appellate authority over competing structural-engineering opinions.
    • The Division Bench agreed with that approach.
    • It further noted that the Ahmedabad Municipal Corporation had issued a notice dated May 19, 2022 directing major repairs after noticing that the building was in a ruinous condition.

    Court Examines Detailed Redevelopment Procedure Under Rules 19–25

    • The judgment also explains the statutory procedure societies must follow before and during redevelopment.
    • Under Rule 19, the Managing Committee must convene a special general meeting and follow the society’s applicable rules and bye-laws concerning notices, agenda circulation, quorum, decision-making and supply of minutes.
    • The special general body must take the redevelopment decision with consent of at least 75% of the total members and select an Architect/Project Management Consultant.
    • Rule 20 requires the Architect or Project Management Consultant to prepare a project report covering matters such as carpet area, alternative accommodation, rent, parking, amenities, corpus fund, bank guarantee, project-completion period and statutory approvals.
    • Rules 21 and 22 govern the processing of offers and selection of the developer.

    No Procedural Illegality Shown by Dissenting Members

    • After considering the redevelopment process undertaken by Ratnamani Society, the Division Bench found that counsel for the appellants was unable to point out illegality in the procedure relating to the policy decision and selection process.
    • The Court noted that the developer’s offer had been discussed by the society on December 31, 2020, modifications were suggested, and the final offer was accepted on March 30, 2021.
    • Importantly, only an MOU had been entered into with the developer at that stage; the final Development Agreement had not yet been executed.
    • This meant that concerns about the final contractual safeguards could still be addressed when the Development Agreement was formulated.

    Rule 23 Protects Members Through Development Agreement

    • The High Court highlighted Rule 23, which prescribes safeguards to be incorporated in a redevelopment agreement.
    • Among other things, the agreement may deal with the project-completion period, bank guarantee as agreed between the parties, alternative accommodation or monetary compensation, registration of the agreement, carpet area to be provided to existing members, allotment procedure, termination for default, corpus fund, shifting charges, common infrastructure and penalties for delay.
    • Rule 24 further prevents the developer from changing the building plan without the written permission of the Managing Committee.
    • The Court therefore found that the statutory framework itself contained safeguards addressing several of the concerns expressed by the dissenting members.

    Minority Members Have Right to Participate, But Cannot Block Redevelopment

    • The most significant observation came while dealing with the rights of the 15 dissenting members.
    • The Division Bench held that the dissenters were entitled to raise concerns regarding the terms of the Development Agreement and could participate constructively in the redevelopment process.
    • However, that participatory right did not translate into a power to indefinitely obstruct a redevelopment approved by the statutory majority.

    The Court held:

    • β€œ15 members out of total 96 members of the society cannot be permitted to stall the process of redevelopment only on their own suspicions and notions.”
    • The Bench further recorded that there were no allegations of fraud or violation of the procedures prescribed under the Rules.
    • This distinction is important: the judgment does not hold that a majority vote automatically cures every illegality. Rather, the Court found that the statutory majority existed and the appellants had failed to establish fraud or procedural violation.

    Gujarat HC Upholds Single Judge’s Redevelopment Order

    • The Letters Patent Appeal arose from the Single Judge’s judgment dated November 9, 2023 in Special Civil Application No. 11314 of 2022.
    • The Single Judge had permitted the petitioner society to proceed with redevelopment after following due procedure and satisfying the requirements of Section 41A. The private respondents were also directed to hand over possession of their flats to facilitate redevelopment.
    • The Division Bench found no error warranting interference with that decision.

    Appeal Dismissed; Dissenting Members Directed to Cooperate

    • The Gujarat High Court ultimately held that the appeal was devoid of merit and dismissed it.
    • The 15 appellants were directed to cooperate with the redevelopment and to provide constructive suggestions while the society entered into the Development Agreement with the selected developer.
    • The connected Civil Application was also disposed of, with no order as to costs.
    • Accordingly, Ratnamani Co-operative Housing Society succeeded before the Division Bench, and the redevelopment process was permitted to proceed subject to compliance with the statutory requirements.

    Key Legal Takeaway

    The judgment establishes an important balance between majority decision-making and minority-member protection in cooperative housing redevelopment.

    Where the requirements of Section 41A of the Gujarat Ownership Flats Act and Rules 18–25 are satisfied and the prescribed 75% consent has been obtained, a small group of dissenting members cannot stall redevelopment merely because they disagree with the majority or harbour apprehensions about the project.

    At the same time, dissenting members retain the right to participate constructively, question the terms of the Development Agreement and object to actual statutory or procedural violations. The decision therefore should not be read as eliminating minority rights; rather, it distinguishes legitimate objections based on legal or procedural violations from obstruction founded merely on suspicions and disagreement.

    Connected Matter

    Gujarat High Court Directs Dissenting Members to Vacate Flats for Society Redevelopment; Holds 75% Consent and Section 41A Requirements Satisfied

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    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.

    Source: Gujarat High Court

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  • Bombay High Court Sets Aside β‚Ή18.95 Crore Arbitral Award; Says Ex Parte Proceedings Cannot Bypass Natural Justice

    Bombay High Court Sets Aside β‚Ή18.95 Crore Arbitral Award; Says Ex Parte Proceedings Cannot Bypass Natural Justice

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 17.09.2026

    Bombay High Court Sets Aside β‚Ή18.95 Crore Arbitral Award; Says Ex Parte Proceedings Cannot Bypass Natural Justice

    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 id shobhit.Ica23@gmail.com .

    The Bombay High Court has set aside an arbitral award directing the legal heirs and guarantors of a deceased borrower to jointly and severally pay more than β‚Ή18.95 crore, holding that the arbitration proceedings suffered from serious violations of natural justice, including failure to supply relied-upon documents, absence of notices for subsequent hearings, and failure to provide notice before proceeding ex parte.

    In Manjula Dinesh Rita & Ors. v. Lokmanya Multipurpose Co-operative Society Ltd. & Anr., Commercial Arbitration Petition No. 239 of 2023, Justice Sharmila U. Deshmukh allowed a petition under Section 34 of the Arbitration and Conciliation Act, 1996 and quashed the arbitral award dated March 7, 2022. The judgment was pronounced on September 16, 2026.

    Dispute Over β‚Ή1.5 Crore Loan and Alleged β‚Ή4.5 Crore Facility

    • The dispute originated from a credit facility obtained by the late Dinesh Shamji Rita. According to the petitioners, a cash-credit facility of β‚Ή1.5 crore had been sanctioned in 2012 for his construction business. Petitioner No. 1 and Respondent No. 2 stood as guarantors, while a Mumbai property was mortgaged as additional security.
    • A dispute subsequently arose over an additional amount of β‚Ή3 crore. The co-operative society’s case was that the total cash-credit facility was β‚Ή4.5 crore, while the petitioners disputed liability beyond the original β‚Ή1.5 crore facility.
    • The controversy ultimately went to statutory arbitration under Section 84 of the Multi State Co-operative Societies Act, 2002 (MSCS Act).
    • On March 7, 2022, the arbitrator directed the petitioners and Respondent No. 2 to jointly and severally pay β‚Ή18,95,34,034.10, along with 18% annual interest, additional penal interest of 2% per annum from October 12, 2020 until realization, and costs.

    Petitioners Challenge Ex Parte Award

    • The petitioners approached the Bombay High Court under Section 34 of the Arbitration and Conciliation Act, 1996.
    • A central grievance was that although they received the statement of claim, the documents relied upon by the co-operative society were not supplied to them.
    • The record showed that approximately 17 documents, including a promissory note concerning β‚Ή3 crore, loan agreement, registered mortgage deed and guarantee documents, were listed with the statement of claim. The petitioners immediately sought copies so that they could prepare their defence. Instead of supplying the documents, the society asked them to obtain the copies from the arbitrator on the scheduled hearing date.

    Bombay HC: Documents Relied Upon Must Be Supplied to Other Side

    • The High Court emphasised Section 24(3) of the Arbitration Act, which requires statements, documents and other information supplied by one party to the arbitral tribunal to be communicated to the other party.
    • The Court held that the duty was upon the party producing documents before the tribunal to supply them to the opposite party. Non-compliance deprived the petitioners of the full opportunity to present their case guaranteed by Section 18 of the Arbitration Act.
    • Relying upon the Supreme Court’s decision in Ssangyong Engineering & Construction Co. Ltd. v. National Highways Authority of India, (2019) 15 SCC 131, the Court linked Sections 18 and 24(3) with the ground for setting aside an award under Section 34(2)(a)(iii) where a party was unable to present its case.

    No Notice of Subsequent Arbitration Hearings

    • The Court found another serious procedural defect.
    • The first hearing was scheduled at Belgaum during the COVID-19 pandemic, although the petitioners were residing in Mumbai. After the first hearing notice, no further notices of the arbitral meetings were issued to them.
    • The award itself recorded five adjournments, excluding the lockdown period. Yet the proceedings were adjourned from time to time without subsequent hearing notices being served upon the petitioners. The arbitrator eventually proceeded ex parte.
    • The affidavit of evidence and documents filed by the society’s witness were also not served upon the petitioners.
    • The High Court therefore held that failure to provide necessary documents, the affidavit of evidence, notices of subsequent hearings and minutes of arbitral meetings amounted to denial of a proper opportunity to present the case and vitiated the award under Section 34(2)(a)(iii).

    Arbitrator Must Give Notice Before Proceeding Ex Parte

    • The judgment also addresses an important procedural question: whether an arbitrator can simply proceed ex parte after a party fails to participate following the first notice.
    • The High Court referred to Sohan Lal Gupta v. Asha Devi Gupta and the Delhi High Court decision in M/s Lovely Benefit Chit Fund & Finance Pvt. Ltd. v. Puran Dutt Sood & Ors., AIR 1983 Delhi 413.
    • The principle discussed was that where a party fails to appear, the arbitrator should give notice of the intention to proceed ex parte on a specified date. Only after such notice, and continued non-participation, may proceedings continue in the party’s absence.
    • Applying that principle, the Bombay High Court found that only the first notice had been issued. Thereafter, there were no subsequent hearing notices, and neither the minutes nor affidavit of evidence was supplied.
    • The Court consequently found a β€œcomplete go-by to the principles of natural justice” in the manner in which the arbitration proceeded ex parte.

    β‚Ή1.5 Crore Guarantee Could Not Mechanically Become Liability for β‚Ή4.5 Crore Facility

    • Apart from procedural violations, the High Court identified serious defects in the reasoning of the award.
    • The letter of guarantee executed by Petitioner No. 1 and Respondent No. 2 was for β‚Ή1.5 crore, and the mortgage deed also referred to an overdraft facility of β‚Ή1.5 crore. Nevertheless, the arbitrator imposed joint and several liability in relation to an alleged β‚Ή4.5 crore credit facility, along with interest and penalty.
    • The Court found that the arbitrator had ignored vital evidence showing that the guarantee, loan application and mortgage security related to the β‚Ή1.5 crore facility.
    • According to the High Court, the award merely restated the contents of the society’s affidavit of evidence and referred to documents without discussing the evidence before accepting a claim exceeding β‚Ή18.95 crore. The Court held that the award suffered from perversity and patent illegality.

    Bombay HC Finds Award Failed Requirement of Reasoned Decision

    • The High Court relied on the Supreme Court’s decision in Dyna Technologies Pvt. Ltd. v. Crompton Greaves Ltd., (2019) 20 SCC 1, concerning the requirement of a reasoned arbitral award under Section 31(3) of the Arbitration Act.
    • The Court noted that arbitral reasoning must be intelligible and adequate, though an award need not resemble an elaborate judicial judgment.
    • In the present case, however, the High Court found that the award failed the requirements of a reasoned award because there was no meaningful discussion or finding on the oral and documentary evidence before the tribunal.

    Mumbai Court Had Supervisory Jurisdiction Despite Arbitration Sittings at Belgaum

    • The judgment also contains an important discussion on the distinction between the β€œseat” and β€œvenue” of arbitration.
    • Although the arbitral sittings took place in Belgaum, Karnataka, the Court observed that the MSCS Act did not designate a statutory territorial seat or venue for the arbitration. Merely stating β€œSitting at Belgaum” in the award did not establish a conscious determination of Belgaum as the juridical seat under Section 20(2) of the Arbitration Act. The Court treated the sittings there as referable to a convenient place of meeting under Section 20(3).
    • The original borrower and guarantors were based in Mumbai, the loan was sanctioned through the Mumbai branch, the relevant loan and mortgage documents were executed in Mumbai, and the mortgaged property was situated in Mumbai. No part of the cause of action arose in Belgaum.
    • Accordingly, the High Court held that the courts in Mumbai had supervisory jurisdiction under Section 2(1)(e) of the Arbitration Act.

    Supreme Court’s BGS SGS Soma Principle Considered

    • While examining territorial jurisdiction, the Court considered BGS SGS Soma JV v. NHPC Ltd., (2020) 4 SCC 234, which explains when a designated venue can operate as the juridical seat of arbitration.
    • The Bombay High Court distinguished the present statutory arbitration because there was neither an express designation of Belgaum as the seat nor a determination under Section 20(1) or Section 20(2) establishing it as such.

    β‚Ή18.95 Crore Award Quashed and Set Aside

    After examining the jurisdictional issue, denial of documents, absence of subsequent hearing notices, ex parte procedure and deficiencies in the reasoning of the award, the Bombay High Court concluded that the award could not survive.

    The Court held:

    β€œThe impugned award is, unsustainable and is hereby quashed and set aside.”

    • The Commercial Arbitration Petition was accordingly allowed, while pending interim applications were disposed of.
    • Thus, Manjula Dinesh Rita and the other petitioners succeeded in their Section 34 challenge, and the β‚Ή18.95 crore arbitral award against them was set aside.

    Key Legal Takeaway

    The judgment reinforces three significant principles in arbitration law. First, an arbitral tribunal cannot treat a party’s absence as a licence to dispense with fair hearing requirements. Documents and evidence relied upon must be communicated to the opposite party, and an adequate opportunity to respond must be provided.

    Second, where an arbitrator intends to proceed ex parte, procedural fairness requires appropriate notice; an award may be vulnerable under Section 34(2)(a)(iii) where a party was effectively prevented from presenting its case. Third, merely conducting arbitral sittings at a particular location does not necessarily make that location the juridical seat, particularly in a statutory arbitration where no seat has otherwise been designated or determined.

    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.

    Source: Bombay High Court

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  • Bombay High Court Lays Down Landmark Principles for Deemed Conveyance and Proportionate Land Division Under MOFA

    Bombay High Court Lays Down Landmark Principles for Deemed Conveyance and Proportionate Land Division Under MOFA

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 17.09.2026

    Bombay High Court Lays Down Landmark Principles for Deemed Conveyance and Proportionate Land Division Under MOFA

    This Short Article has been prepared & written by Advocate Madhumita Jha. The views expressed are based on her interpretation of the law. She can be reached at her email id jhamadhumita27@gmail.com .  

    In a significant judgment affecting cooperative housing societies, developers and redevelopment projects across Maharashtra, the Bombay High Court has laid down detailed principles governing proportionate division and deemed conveyance of land in multi-building layouts, particularly where different buildings have consumed different amounts of base FSI, TDR or additional development potential.

    In Satellite Garden I Cooperative Housing Society Ltd. v. State of Maharashtra & Ors. and connected petitions, Justice Sandeep V. Marne held that a housing society’s entitlement to proportionate layout land crystallises and freezes when the statutory period for conveyance under Section 11 of the Maharashtra Ownership Flats Act, 1963 (MOFA), read with Rule 9 of the MOF Rules, 1964, expires. Subsequent revision of building plans cannot, by itself, reduce that crystallised entitlement.

    The 170-page judgment, pronounced on September 16, 2026, arose from three connected writ petitions concerning societies in a Goregaon, Mumbai layout.

    Bombay HC Addresses Long-Standing Problem of Land Division in Large Layouts

    • At the outset, the Court identified a recurring difficulty in real-estate development: while conveyance of land for a standalone building is relatively straightforward, disputes become considerably more complicated when several housing societies occupy different buildings within a common layout.
    • The problem becomes particularly acute where buildings are constructed at different times, revised plans are sanctioned, TDR is subsequently loaded, or different FSI regimes apply.
    • Justice Marne observed that organisations of flat purchasers in the first building need not indefinitely wait for the developer to complete the entire layout. Their right to obtain conveyance of a proportionate share in the land is recognised in law. The real difficulty is determining how much land should be conveyed to each society.
    • The Court therefore used the three petitions not merely to resolve the individual disputes, but also to formulate broader principles for proportionate land division in layout developments.

    Dispute Involved Four Constructed Buildings and One Proposed Building

    • The case concerned a larger property at A.K. Vaidya Marg, Goregaon (East), Mumbai, originally measuring approximately 55,696.70 sq. metres.
    • Development rights were granted to BPM Industries, later known as Satellite Developers Ltd. The relevant Sub-Plot A was initially approximately 16,855.47 sq. metres and was later realigned to approximately 21,807.18 sq. metres.
    • Satellite Garden I CHSL was formed in respect of the first building in October 2002. Further buildings were subsequently constructed, leading to the formation of Sadguru Complex 1 (AB) CHSL, Sadguru Complex 1 (CD) CHSL and Satellite Tower CHSL. A fifth building was contemplated but remained unconstructed.
    • The societies had significantly different built-up areas. According to the last sanctioned plan referred to in the judgment, Satellite Garden I had BUA of 11,186.41 sq. metres, Sadguru AB 3,936.31 sq. metres, Sadguru CD 3,917.76 sq. metres, and Satellite Tower 20,728.06 sq. metres.

    Competent Authority Applied Different Standards to Different Societies

    • A major reason for the litigation was the lack of a uniform approach in the deemed-conveyance orders.
    • Satellite Tower CHSL had been granted only 4,864.21 sq. metres, corresponding to its building’s plinth area. Sadguru Complex 1 (AB) CHSL was granted just 643.81 sq. metres, even though its plinth itself measured approximately 959.69 sq. metres.
    • In contrast, Sadguru Complex 1 (CD) CHSL was granted 2,134.15 sq. metres, including a proportionate share in the recreational-ground area, after applying a BUA-based calculation.
    • The High Court noted that the Competent Authority had therefore failed to apply a uniform yardstick to societies situated within the same layout.

    TDR Created an Unusual Land-Sharing Problem

    • The case became more complex because TDR had not been uniformly used across the buildings.
    • Satellite Garden I had no TDR loaded on it. Sadguru AB had 720 sq. metres of TDR, Sadguru CD had 3,086.08 sq. metres, while Satellite Tower had a massive 14,949.6 sq. metres of TDR, over its base BUA of 5,778 sq. metres.
    • The Court explained that blindly dividing land according to the final total BUA would create an anomalous result. Satellite Tower, whose base BUA represented only about 25% of the base BUA, could end up receiving more than 50% of the layout land because of the later loading of substantial TDR.
    • The Court described this as a potential windfall and noted that Satellite Garden I, where no TDR had been used, would consequently be disadvantaged.

    Society’s Right to Land Crystallises Four Months After Formation

    • The most important part of the judgment is the set of principles formulated by the High Court for future deemed-conveyance disputes.
    • Justice Marne held that the right to obtain conveyance of land and building accrues to the organisation of flat purchasers upon expiry of the statutory period prescribed by Section 11 of MOFA read with Rule 9 of the MOF Rules.
    • Accordingly, in a layout development, the proportionate land that ought to have been conveyed to a society crystallises and freezes when four months expire from the society’s formation.
    • This means that a developer cannot ordinarily reduce the society’s proportionate land entitlement simply by obtaining revised plans at a later stage.

    Subsequent Revised Plans Cannot Automatically Reduce Earlier Society’s Share

    • The Court held that proportionate land division should ordinarily be determined with reference to either the first sanctioned plan or the plan existing when the society’s right crystallised upon expiry of the Rule 9 period.
    • The Competent Authority must therefore consider the sanctioned plan existing when four months expired from formation of the organisation of flat purchasers.
    • This principle has considerable practical importance in phased developments where developers continue construction for several years and repeatedly revise the sanctioned layout.
    • An earlier society’s entitlement cannot simply continue shrinking every time another building is introduced or additional development potential is subsequently loaded onto the plot.

    Written Consent Can Alter the Position

    • The Court, however, created an important exception.
    • Where flat purchasers of an earlier building or their society have given written consent to modification or revision of the layout plan, proportionate land division may be undertaken by considering the plan carrying such consent.
    • Thus, the Court did not impose an inflexible first-plan rule. The relevant plan would ordinarily be the plan existing when the statutory right crystallised, or a subsequent plan supported by the requisite written consent, whichever is later.

    Developers Must Warn Buyers About TDR and Incentive FSI

    • The judgment also places an important disclosure responsibility on promoters and developers.
    • The Court held that developers and promoters must give adequate notice to flat purchasers where buildings are proposed to be constructed using incentive FSI or TDR, including warning purchasers of the potential risk that the land ultimately conveyed to their society may be less than the BUA consumed by their building.
    • This observation strengthens the importance of disclosures in agreements for sale and sanctioned layout plans in phased developments.

    Use of TDR Does Not Always Mean Conveyance Must Be Restricted to Plinth Area

    • The Court also examined the Maharashtra Government’s GR dated June 22, 2018, which contains guidelines for deemed conveyance.
    • The GR provides, among other things, that where TDR is utilised in a layout, conveyance may be made according to the plinth and appurtenant area.
    • However, the High Court noted that its earlier ruling in Neelkanth Mansion and Infrastructure Pvt. Ltd. had already clarified that use of TDR does not mean that proportionate land division must be abandoned in every case.
    • Where difficulties arise because of unequal TDR loading during an incomplete layout development, plinth-and-appurtenant-area conveyance can operate as a transitional mechanism. It is not necessarily an immutable rule for final division of layout land.

    Deemed Conveyance Is Not Final Determination of Title

    • Another important clarification concerns the jurisdiction of the Competent Authority.
    • The High Court observed that deemed conveyance granted under Section 11 of MOFA is not finally determinative of all competing rights and title claims in the land.
    • If a developer or another society believes that it has an entitlement contrary to the land division determined by the Competent Authority, it can approach the Civil Court.
    • At the same time, a society seeking application of the crystallisation/freezing principle should not itself be forced into civil litigation merely to obtain its proportionate deemed conveyance.

    Court Rejects 2010 Plan as Basis for Land Distribution in Present Case

    • Applying these principles to the societies before it, the High Court held that the land distribution could not properly be based upon the revised sanctioned plan dated July 9, 2010, under which substantial slum TDR had been loaded on Sadguru CD and Satellite Tower.
    • The deemed conveyance granted to Sadguru CD based upon that revised plan was therefore found unsustainable. Similarly, the conveyances restricting Satellite Tower and Sadguru AB merely to plinth areas were also liable to be set aside.
    • Instead, the Court directed that the exercise should be undertaken by reference to the BUA figures reflected in the layout plan dated March 10, 2005.

    Court Identifies BUA Figures for Fresh Land-Division Exercise

    For purposes of the fresh exercise, the High Court identified the following BUA figures:

    • Satellite Garden Phase I β€” 11,186.41 sq. metres
    • Sadguru AB β€” 3,126.32 sq. metres
    • Sadguru CD β€” 830.92 sq. metres
    • Satellite Tower β€” 5,778 sq. metres

    The Court directed that these figures be used as the basis for proportionate division of the entire Sub-Plot A.

    Significantly, the Court explained that this is essentially a notional subdivision of layout land. Physical division may not always be possible because internal roads, amenities and other common spaces are spread across the layout.

    Three Deemed-Conveyance Orders Set Aside

    • The Bombay High Court ultimately set aside all three impugned orders passed by the Competent Authority:
    • the October 31, 2025 order concerning Sadguru Complex 1 (CD) CHSL; the May 16, 2024 order concerning Satellite Tower CHSL; and the March 6, 2025 order concerning Sadguru Complex 1 (AB) CHSL.
    • All three applications were remanded to the Competent Authority for fresh adjudication.
    • The Competent Authority was directed to obtain a fresh certificate from architect Aniket Mathakar showing distribution of the entire 21,807.18 sq. metres of Sub-Plot A on the basis of the BUA figures identified by the Court.
    • The authority must then freshly determine each society’s land entitlement while applying the principles laid down in the judgment.
    • All three writ petitions were accordingly disposed of, with no order as to costs.

    Seven Principles Laid Down by Bombay High Court

    For housing societies, developers and conveyancing authorities, the judgment can be distilled into seven major rules:

    • The right to conveyance accrues upon expiry of the Section 11/Rule 9 period.
    • the society’s proportionate land entitlement then crystallises and freezes
    • later plan revisions cannot ordinarily diminish that entitlement.
    • land division should generally follow the sanctioned plan existing at crystallization.
    • a later plan may be considered where the earlier purchasers or society have given written consent.
    • parties asserting contrary title rights can approach the Civil Court.
    • developers must adequately disclose the use of TDR/incentive FSI and the consequent risk to land entitlement.

    Why the Judgment Matters

    The ruling has potentially wide significance for deemed conveyance and redevelopment of multi-building housing layouts in Maharashtra.

    The central principle is that an earlier society’s land rights cannot remain indefinitely fluid while a developer repeatedly changes plans, introduces new buildings or loads additional TDR over several years.

    By fixing the relevant point at which the society’s proportionate entitlement β€œcrystallises and freezes,” the judgment provides a framework for balancing the rights of earlier flat purchasers against subsequent lawful development within the same layout.

    At the same time, the Court has preserved the jurisdiction of civil courts where complicated questions of title or competing substantive rights require a full evidentiary adjudication.

    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.

    Source: Bombay High Court

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  • Karnataka High Court: Signed Blank Cheque Can Attract Section 138 NI Act; Accused Must Rebut Statutory Presumption at Trial

    Karnataka High Court: Signed Blank Cheque Can Attract Section 138 NI Act; Accused Must Rebut Statutory Presumption at Trial

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 17.09.2026

    Karnataka High Court: Signed Blank Cheque Can Attract Section 138 NI Act; Accused Must Rebut Statutory Presumption at Trial

    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 refused to quash criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881, holding that an accused cannot escape prosecution merely by claiming that a signed blank cheque was originally issued as security and was subsequently filled in by the payee.

    In S. Rohit Chopra v. Housing Development Finance Corporation Ltd. (HDFC Ltd.), Criminal Petition No. 59 of 2019, Justice M.G. Uma held that where the accused admitted the housing loan, default, issuance of the cheque bearing his signature, receipt of the statutory notice and non-payment of the cheque amount, a prima facie case under Section 138 was made out.

    The Court relied principally on the Supreme Court’s decision in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197, concerning the legal effect of voluntarily handing over a signed blank cheque.

    β‚Ή1.15 Crore Housing Loan Led to Cheque Dishonour Proceedings

    • According to HDFC Ltd., the petitioner had availed a housing loan of β‚Ή1.15 crore and executed an on-demand promissory note, loan agreement and connected documents agreeing to repay the facility in instalments.
    • The borrower allegedly defaulted in November 2017 and thereafter issued Cheque No. 000117 dated December 9, 2017 for β‚Ή1.20 crore towards repayment of the outstanding loan.
    • When HDFC presented the cheque, it was returned unpaid for β€œfunds insufficient.” A legal demand notice was subsequently served upon the accused, but according to the complaint, neither a reply nor payment followed.
    • HDFC consequently initiated proceedings under Section 138 of the NI Act.

    Magistrate Took Cognizance After Examining Bank’s Documents

    • Before the Trial Court, HDFC’s authorised officer submitted an affidavit and relied upon documents marked Exhibits P1 to P12.
    • After considering the sworn statement and supporting material, the Magistrate took cognizance on March 8, 2018 and registered C.C. No. 1404/2018, issuing summons to the accused.
    • Rohit Chopra then approached the Karnataka High Court under Section 482 of the Code of Criminal Procedure, seeking quashing of the private complaint and the entire criminal proceedings.

    Accused: Blank Cheque Was Given Only as Security

    • The petitioner’s principal defence was that the cheque relied upon by HDFC had originally been issued as a blank security cheque and was subsequently misused by the lender.
    • However, the High Court noted significant admissions contained in the petition itself.
    • The petitioner admitted that he had approached HDFC and obtained the β‚Ή1.15 crore housing loan on April 30, 2016 after executing the necessary loan documents. He also admitted that instalments had not been paid for a period and that the loan account had been classified as a non-performing asset.
    • Most importantly for the Section 138 proceedings, the petitioner admitted issuance of the cheque and his signature upon it.

    Karnataka HC: Prima Facie Section 138 Offence Complete

    The Court found that the accused had admitted:

    • availing the housing loan;
    • becoming a defaulter;
    • issuance of the cheque bearing his signature;
    • receipt of the legal notice; and
    • failure to pay the amount covered by the cheque.

    In those circumstances, Justice M.G. Uma held that prima facie the offence punishable under Section 138 of the NI Act was complete.

    This did not amount to a final finding that the accused was guilty. Rather, the Court was determining whether the criminal case should be terminated at the threshold under Section 482 CrPC.

    Supreme Court’s Bir Singh v. Mukesh Kumar Applied

    • HDFC relied upon the Supreme Court’s judgment in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197.
    • The Karnataka High Court reproduced the Supreme Court’s principle that when a signed blank cheque is voluntarily handed over to a payee towards payment, the payee may fill in the amount and other particulars. The mere filling of those particulars does not, by itself, invalidate the cheque.
    • The Supreme Court had further held that even a blank cheque leaf, when voluntarily signed and handed over towards a payment, attracts the presumption under Section 139 of the NI Act, unless cogent evidence establishes that the cheque was not issued in discharge of a debt or liability.
    • Applying that principle, the Karnataka High Court rejected the argument that describing the instrument as a β€œblank security cheque” was, by itself, sufficient to justify quashing the prosecution.

    Accused Must Rebut Presumptions Under Sections 118 and 139

    • The High Court emphasised the statutory presumptions operating under Sections 118 and 139 of the Negotiable Instruments Act.
    • Where the foundational circumstances giving rise to the statutory presumption exist, the accused is entitled to rebut it by producing appropriate evidence. But that exercise ordinarily belongs to the trial, rather than to threshold proceedings seeking quashing of the complaint.
    • The Court held that if the accused had a defence concerning the purpose for which the cheque was issued, he could raise and establish that defence before the Trial Court. Success would depend upon rebutting the statutory presumptions under Sections 118 and 139.

    High Court Cannot Conduct β€œMini Trial” Under Section 482 CrPC

    • Another important aspect of the ruling concerns the limits of the High Court’s inherent jurisdiction.
    • Justice M.G. Uma held that while considering a petition for quashing, the High Court cannot act as a Trial Court and conduct a mini trial to determine whether the accused’s defence is factually true.
    • Questions concerning the competing versions of the complainant and accused must ordinarily be decided after evidence is led during a full-fledged trial.
    • At the cognizance stage, the relevant question was whether sufficient prima facie material existed to attract Section 138. The Court found that HDFC had produced adequate material and that there was no illegality or perversity in the Magistrate’s decision to take cognizance.

    β€œSecurity Cheque” Defence Does Not Automatically End Section 138 Proceedings

    • The judgment is significant for cheque-dishonour litigation because it reinforces the distinction between a defence available at trial and a ground capable of terminating prosecution at the outset.
    • An accused may contend that a cheque was issued only as security, was subsequently filled in, or did not represent an enforceable liability. But where signature and issuance are admitted, such contentions may involve factual questions requiring evidence.
    • The Karnataka High Court therefore did not finally determine whether the cheque represented the actual legally enforceable liability of β‚Ή1.20 crore. It held instead that the petitioner’s defence was not sufficient, at the Section 482 stage, to quash the prosecution.

    Criminal Petition Dismissed

    • The High Court ultimately dismissed the criminal petition and directed Rohit Chopra to appear before the Trial Court and cooperate with the proceedings.
    • Since the underlying complaint dated back to 2018, the Court also directed the Trial Court to dispose of the case at the earliest, with cooperation from both the complainant and the accused.
    • Thus, HDFC succeeded in resisting the quashing petition, while the ultimate question of the accused’s guilt or acquittal remained for determination by the Trial Court.

    Key Legal Takeaway

    The ruling reiterates that a signed blank cheque does not become legally ineffective merely because its remaining particulars were filled in later. Where such a cheque has been voluntarily handed over towards payment, the statutory presumption under Section 139 may arise.

    At the same time, this does not mean that every signed blank or security cheque automatically results in conviction. The accused retains the right to rebut the presumptions under Sections 118 and 139 and establish that the cheque was not issued towards a legally enforceable debt or liability. What the Karnataka High Court declined to permit was the conversion of a Section 482 quashing proceeding into a factual trial of that defence.

    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.

    Source: Karnataka High Court

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  • Supreme Court Acquits Two in NDPS Case Over Broken Chain of Custody: Says FSL Report Cannot Survive Serious Gaps in Sample Integrity

    Supreme Court Acquits Two in NDPS Case Over Broken Chain of Custody: Says FSL Report Cannot Survive Serious Gaps in Sample Integrity

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 17.09.2026

    Supreme Court Acquits Two in NDPS Case Over Broken Chain of Custody: Says FSL Report Cannot Survive Serious Gaps in Sample Integrity

    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 Supreme Court has acquitted two persons convicted in a narcotics case after finding serious deficiencies in the prosecution’s evidence concerning the identification, sealing, safekeeping and movement of samples allegedly drawn from the seized contraband.

    In Abdul Rajik v. State of M.P. along with Govind v. State of M.P., 2026 INSC 1001, a Bench of Justice Sandeep Mehta and Justice Manmohan held that the link evidence had been completely breached, undermining the sanctity and integrity of the samples. Once the Forensic Science Laboratory (FSL) report was excluded, there was no legally admissible evidence establishing that the seized substance was charas.

    Background of the NDPS Case

    • The prosecution alleged that on November 29, 2004, police in Jabalpur received information that two persons were carrying charas in bags. A raiding team intercepted Abdul Rajik and Govind at Bandariya Tiraha.
    • According to the prosecution, 1 kilogram of suspected charas was recovered from Abdul Rajik’s bag and 800 grams from Govind’s bag. Samples were drawn and the accused were arrested. The FSL subsequently reported that the samples were charas.
    • The Special NDPS Court convicted both accused. Abdul Rajik was sentenced to 10 years’ rigorous imprisonment with a fine of β‚Ή1 lakh, while Govind was sentenced to eight years’ rigorous imprisonment with a fine of β‚Ή80,000. The Madhya Pradesh High Court dismissed their appeals in November 2010 and affirmed the convictions.
    • The matter ultimately reached the Supreme Court.

    Sections 42 and 50 Not Applicable to Search of Bags in Public Place

    • The accused argued, among other things, that the mandatory requirements of Sections 42, 50 and 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 had not been complied with.
    • The Supreme Court, however, did not accept the challenge based on Sections 42 and 50.
    • It observed that the alleged recovery was from bags being carried by the accused when they were apprehended in an open public place. Consequently, the Court held that neither Section 42 nor Section 50 applied to the search and seizure in the circumstances of the case.
    • The acquittal instead turned principally on the failure to establish reliable link evidence and chain of custody, considered alongside total non-compliance with Section 52A.

    Supreme Court Finds Serious Problems With Identification of Samples

    • The Court closely examined the evidence of the seizure officer regarding the manner in which representative samples were drawn and sealed.
    • It found that the officer did not state that the sample packets themselves had been sealed by him or that identifiable markings β€” such as signatures or thumb impressions of the accused, panch witnesses or seizure officer β€” had been placed on those packets.
    • The sample packets were also not separately produced and exhibited when the muddamal articles were produced before the trial court.
    • The Court further examined the sample panchnamas and found no indication that the packets had been secured with signatures or identifiable chits enabling the samples subsequently tested by the FSL to be correlated with the contraband allegedly recovered from each accused. Even the FSL report did not refer to signatures or thumb impressions on the sample packets.

    Missing Link Between Maalkhana and FSL

    • Another major deficiency concerned the prosecution’s failure to establish the movement and safe custody of the samples.
    • Although the maalkhana register recorded the deposit of samples on November 29, 2004, the Supreme Court noted that there was no corresponding entry recording their exit from the police station for transportation to the FSL.
    • The prosecution also failed to prove documents such as the police station forwarding letter and road certificates that could establish the link between seizure, storage and delivery to the laboratory.
    • The Court stressed that evidence regarding safe custody is crucial because the prosecution must demonstrate that the very samples drawn from the seized substance reached the forensic laboratory without substitution, interference or unexplained gaps.

    Unexplained Five-Day Gap Further Breaks Chain of Custody

    • The Court identified another material discrepancy.
    • The forwarding letter from the Office of the Superintendent of Police was dated December 1, 2004, whereas the FSL report recorded that the samples were received through Constable Ramkrishna on December 6, 2004.
    • The prosecution provided no explanation as to where the samples remained and in whose custody they were kept during this five-day period. The carrier constable was also not examined.
    • The Supreme Court described this unexplained five-day gap as a grave discrepancy that completely breached the link in the chain of custody.

    Chain of Custody Essential Before FSL Report Can Be Relied Upon

    • The Supreme Court laid down an important evidentiary principle for NDPS prosecutions: the prosecution must establish through proper link evidence that samples extracted from the alleged contraband were properly sealed and remained in a safe and secure condition from seizure until receipt by the FSL.
    • For an FSL report to be relied upon, the prosecution must establish through credible oral and documentary evidence a complete chain of custody preserving the integrity and sanctity of the samples.
    • This assumes particular significance in NDPS prosecutions because the chemical analysis ordinarily provides the scientific foundation for establishing whether the recovered material was in fact a prohibited narcotic drug or psychotropic substance.

    Total Non-Compliance With Section 52A

    • The Supreme Court also considered compliance with Section 52A of the NDPS Act, which provides safeguards relating to inventory, photographs and representative sampling of seized narcotic substances.
    • The Court clarified that mere non-compliance with Section 52A or the applicable Standing Orders/Rules does not automatically vitiate every trial or result in acquittal. The relevant question includes whether and to what extent the non-compliance caused prejudice to the accused.
    • However, the Court distinguished minor procedural lapses from complete non-compliance. It found that in the present case no effort whatsoever was made to undertake the Section 52A procedure for drawing representative samples in the presence of a Magistrate, amounting to total non-compliance.

    Supreme Court Relies on Earlier NDPS Precedents

    • The Court referred to Narcotics Control Bureau v. Kashif, (2024) 11 SCC 372, and Bharat Aambale v. State of Chhattisgarh, (2025) 8 SCC 452, while explaining that Section 52A non-compliance does not by itself automatically lead to acquittal and that prejudice and evidentiary consequences must be examined.
    • It also relied upon Nadeem Ahamed v. State of West Bengal, 2025 SCC OnLine SC 1779, where failure to draw representative samples before a Magistrate and absence of a certified inventory were held to undermine the integrity of the seizure and sampling process.
    • The Court further referred to State of Rajasthan v. Tara Singh, (2011) 11 SCC 559, which emphasised the significance of accounting for the custody of seized samples between dispatch and receipt at the laboratory, particularly given the stringent penalties under the NDPS Act.

    FSL Report Discarded

    • Applying these principles, the Supreme Court concluded that the link evidence had been totally breached, resulting in the collapse of the sanctity and integrity of the samples.
    • Consequently, the FSL report could no longer safely be relied upon and had to be discarded.
    • Once the FSL report was excluded, there was no other legally admissible evidence proving that the substance allegedly recovered from Abdul Rajik and Govind was charas within Section 2(iii)(a) of the NDPS Act, an essential foundational fact for attracting penal consequences under Section 20.

    Burning Suspected Substance Is Not Scientific Proof of Charas

    • The Supreme Court also rejected the seizure officer’s assertion that the suspected substance had been tested by burning a portion of it and could therefore be identified as charas.
    • The Court found no scientific material demonstrating that a substance could reliably be identified as charas merely by burning it. Accordingly, such testimony could not substitute for reliable scientific evidence establishing the identity of the alleged contraband.

    Supreme Court Acquits Both Accused

    • The Court ultimately held that the prosecution had failed to prove that the substance recovered from the accused was charas.
    • It therefore found the convictions recorded by the Special NDPS Court and affirmed by the Madhya Pradesh High Court unsustainable in law and extended the benefit of doubt to both appellants.
    • The Supreme Court set aside the conviction and sentence and acquitted Abdul Rajik and Govind of all charges. Since both were already on bail, the Court directed that they need not surrender and discharged their bail bonds. The appeals were accordingly allowed.

    Key Legal Takeaway

    The judgment reinforces that in NDPS prosecutions, an FSL report cannot be viewed in isolation from the evidentiary chain connecting the tested sample with the substance allegedly seized from the accused. While every procedural irregularity under Section 52A does not automatically result in acquittal, total non-compliance coupled with serious defects in identification, sealing, safekeeping and movement of samples can destroy the prosecution’s link evidence.

    Where that breakdown makes it impossible to establish that the substance scientifically tested was the same substance allegedly recovered from the accused, the forensic report may lose its evidentiary foundation.

    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.

    Source: Supreme Court

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  • Gujarat High Court: Raiding Officer Cannot Himself Be the Gazetted Officer Offered for Search Under Section 50 NDPS Act

    Gujarat High Court: Raiding Officer Cannot Himself Be the Gazetted Officer Offered for Search Under Section 50 NDPS Act

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 16.09.2026

    Gujarat High Court: Raiding Officer Cannot Himself Be the Gazetted Officer Offered for Search Under Section 50 NDPS Act

    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 Gujarat High Court has suspended the 15-year rigorous imprisonment imposed on two persons convicted in a commercial-quantity NDPS case and granted them bail pending their criminal appeals, after finding a prima facie issue of non-compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

    A Division Bench comprising Justice Ilesh J. Vora and Justice R.T. Vachhani, in Moneshkumar Sukhenbhai Garange v. State of Gujarat, passed the common interim order on 29 April 2026 in Criminal Misc. Application No. 1 of 2026 in Criminal Appeal Nos. 408 and 685 of 2026.

    The Court found substance, at the prima facie stage, in the contention that the raiding officer could not have offered the accused an option of being searched before himself, in addition to the statutory alternatives of a Magistrate or Gazetted Officer. The Bench accordingly suspended the sentence during pendency of the appeals.

    Importantly, the order is not a final acquittal. The High Court expressly clarified that its observations are tentative and prima facie and will not affect the final hearing of the criminal appeals.

    Two Accused Sentenced to 15 Years in Mephedrone Case

    • The applicants, original Accused Nos. 1 and 2, had been convicted under Sections 8(c), 22(c) and 29 of the NDPS Act by the Additional Sessions Judge, Ahmedabad, in Special NDPS Case No. 42 of 2023.
    • By judgment dated 25 November 2025, they were sentenced to 15 years’ rigorous imprisonment and a fine of β‚Ή2 lakh. They subsequently filed criminal appeals before the Gujarat High Court and sought suspension of sentence and bail during pendency of those appeals.

    Prosecution Alleged 118.240 Grams of Mephedrone Was Recovered

    • According to the prosecution, SOG Ahmedabad received secret information on 5 February 2023 that the accused had travelled to Rajasthan to obtain MD drugs and were returning to Ahmedabad in a Ford car.
    • Police recorded the information, transmitted it to a superior officer and intercepted the vehicle while it was allegedly entering Ahmedabad from the Gandhinagar-Koba Circle side towards Indira Bridge.
    • During the personal search, police claimed to have recovered 59.150 grams of mephedrone from Himesh Garange and 59.090 grams from Monesh Garange, making a total alleged recovery of 118.240 grams.
    • The prosecution examined 15 witnesses and produced 51 documents during trial. Accused Nos. 1 to 3 were eventually convicted under Sections 8(c) and 22(c) read with Section 29 of the NDPS Act.

    Accused Challenge Search Under Section 50 NDPS Act

    • Senior Advocate Yatin Oza, appearing for the applicants, raised several objections to the conviction.
    • A principal contention was that there had been non-compliance with Section 50 of the NDPS Act, which provides safeguards when an authorised officer is about to search a person.
    • The accused had allegedly been told that they could be searched before a Gazetted Officer, the nearest Magistrate, or before PW-8 B.P. Chaudhary himself, who was the raiding officer and a Gazetted Officer.
    • The defence argued that Section 50 does not contemplate such a β€œthird option” and that the raiding officer could not simultaneously offer himself as the Gazetted Officer before whom the accused could choose to be searched.
    • Other arguments were also raised concerning Sections 42 and 43 and the handling and custody of samples, including alleged inconsistencies concerning the colour of the contraband, dispatch particulars and non-examination of the person who carried the samples to the FSL.
    • The High Court, however, primarily focused on the Section 50 issue while considering whether the sentence should be suspended.

    State Invokes Commercial Quantity and Section 37 Rigours

    • The State opposed the applications, arguing that the trial court had correctly convicted the applicants on the basis of the evidence.
    • It maintained that the police officers were duly empowered to conduct the search and seizure and that the accused had been informed of their rights under Section 50 before consenting to the search.
    • The prosecution also relied upon the presumptions under Sections 35 and 54 of the NDPS Act and emphasised that the case involved commercial quantity. It therefore contended that the stringent requirements of Section 37 of the NDPS Act should apply even at the stage of considering suspension of sentence and bail pending appeal.

    Appellate Court Must Examine Whether Conviction Has Fair Chance of Being Set Aside

    • The Gujarat High Court referred to the Supreme Court’s decision in Om Prakash Sahni v. Jai Shankar Chaudhary & Anr., (2023) 6 SCC 123 on the principles governing suspension of sentence pending appeal.
    • The Court noted that, while deciding such an application, the appellate court may examine whether there is something apparent or gross on the face of the record that gives rise to a prima facie conclusion that the conviction may ultimately not be sustainable.
    • The Bench was conscious that the evidence could not be fully re-analysed at the interim stage. However, because the conviction was based upon the contraband allegedly recovered during the applicants’ personal searches, the Court considered compliance with Section 50 to be particularly significant.

    Section 50 Safeguard Must Be Properly Communicated

    • The High Court referred to the Constitution Bench judgment in State of Punjab v. Baldev Singh, (1999) 6 SCC 172.
    • The Constitution Bench had explained that an accused about to be personally searched must be informed of the existence of the right under Section 50(1) to be searched before the nearest Gazetted Officer or Magistrate. Failure to observe the statutory safeguard can render recovery from the personal search suspect and affect a conviction based upon that recovery.
    • The Gujarat High Court then considered the more specific issue of whether the searching officer could introduce a third alternative.

    Supreme Court’s Parmanand Judgment: β€œThird Option” Can Vitiate Section 50 Compliance

    • The Bench placed significant reliance on State of Rajasthan v. Parmanand & Anr., (2014) 5 SCC 345.
    • In Parmanand, the Supreme Court emphasised that communication of the right under Section 50 must be clear, unambiguous and individual, because the safeguard is intended to protect an accused against the possibility of false implication in cases carrying stringent punishments.
    • More importantly, the Supreme Court had disapproved of an accused being told that, besides the nearest Magistrate or Gazetted Officer, he could be searched before a senior police officer who was himself part of the raiding party.
    • The Supreme Court reasoned that the statutory safeguard is intended to give the accused the opportunity of a search in the presence of an independent officer. Providing a third option not contemplated by Section 50 could frustrate that protection.

    Searching Officer Cannot Act in Dual Capacity

    • The Gujarat High Court also discussed State of Rajasthan v. Ram Chandra.
    • The Supreme Court had explained that if the officer proposing to conduct the search is himself a Gazetted Officer and gives the accused the option of being searched in his own presence, the requirement of Section 50 would not be satisfied because the searching officer cannot act in a dual capacityβ€”both as the officer conducting the search and as the Gazetted Officer before whom the accused is offered the statutory choice of search.
    • This distinction became central to the Gujarat High Court’s consideration of the present applications.

    Raiding Officer Offered Himself as an Option: Gujarat High Court

    • On examining the evidence of PW-8 and the written notices at Exhibits 80 and 82, the High Court found that PW-8, who was himself the raiding officer, had informed the accused that they could be searched before him, a Magistrate or any Gazetted Officer.
    • The Bench consequently recorded a prima facie view that the raiding officer could not have given the accused an option to be searched before himself.
    • Relying on Parmanand and the Supreme Court’s decision in State of Himachal Pradesh v. Surat Singh, the High Court held that there was substance in the applicants’ argument concerning non-compliance with Section 50 of the NDPS Act.

    15-Year Sentence Suspended; Accused Granted Bail

    • Without undertaking an extensive examination of the merits, the Division Bench held that the circumstances justified exercise of discretion in favour of the applicants.
    • The Court therefore suspended the 15-year sentence imposed by the Special NDPS Judge during pendency of the criminal appeals and directed that the applicants be released on bail upon furnishing a personal bond of β‚Ή10,000 each with one surety each of the like amount.
    • The accused were directed not to leave India without prior permission of the High Court, to appear when the appeals are taken up for final hearing and to intimate any change in address to the concerned police station and the Court.

    Bail Order Does Not Set Aside NDPS Conviction

    • The legal effect of the order needs to be distinguished from a final decision on the appeals.
    • The Gujarat High Court has not acquitted the applicants or finally declared the search illegal. Their convictions remain under challenge in the pending criminal appeals.
    • The Court specifically stated that the observations in the suspension-of-sentence order are β€œtentative and prima-facie in nature” and shall not come in the way when the appeals are heard finally.

    Why the Order Is Significant

    The order reiterates the importance of strict adherence to procedural safeguards in cases involving personal search under the NDPS Act, particularly where the alleged recovery forms the principal basis of conviction.

    It also highlights a crucial distinction under Section 50: merely informing an accused about a Gazetted Officer or Magistrate may not necessarily cure the process if the notice simultaneously introduces a legally impermissible option that could dilute or confuse the statutory right.

    The Gujarat High Court’s prima facie reasoning therefore reinforces the proposition that the officer proposing to conduct the personal search cannot present himself as the independent Gazetted Officer contemplated by the Section 50 safeguard.

    At the same time, because the present order concerns only suspension of sentence pending appeal, the final determination of the legality of the search, conviction and evidentiary issues remains open.

    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.

    Source: Gujarat High Court

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  • Gujarat High Court: Trademark Application Cannot Be Denied Advertisement Merely Due to Section 11(1) Objection

    Gujarat High Court: Trademark Application Cannot Be Denied Advertisement Merely Due to Section 11(1) Objection

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 16.09.2026

    Gujarat High Court: Trademark Application Cannot Be Denied Advertisement Merely Due to Section 11(1) Objection

    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 Gujarat High Court has allowed an appeal filed by Lincoln Pharmaceuticals Private Limited against the rejection of its trademark application for β€œGLYPANTA”, holding that Section 20 of the Trade Marks Act, 1999 permits advertisement of a trademark application despite objections under Section 11(1).

    Justice Mauna M. Bhatt, by an order dated 20 November 2025 in Lincoln Pharmaceuticals Private Limited v. Registrar of Trade Marks & Anr., R/Civil Appeal No. 7 of 2025, quashed the Trade Marks Registry’s rejection order dated 11 August 2025 and directed the Registry to proceed with advertisement of the application within three months.

    The ruling does not amount to final registration of β€œGLYPANTA.” The Court directed advertisement of the application, leaving any opposition to be considered independently on its merits.

    Lincoln Pharmaceuticals Sought Registration of β€˜GLYPANTA’

    • Lincoln Pharmaceuticals had filed an application on 22 August 2023 under Section 18(1) of the Trade Marks Act, 1999, seeking registration of the mark β€œGLYPANTA.”
    • The application was examined by the Trade Marks Registry, which issued an examination report raising objections. Lincoln Pharmaceuticals responded through a detailed reply dated 30 October 2023, raising various grounds in support of registration.
    • According to the pharmaceutical company, however, the grounds raised in its response were not properly considered before the application was ultimately rejected on 11 August 2025.
    • The rejection prompted Lincoln Pharmaceuticals to approach the Gujarat High Court under Section 91 of the Trade Marks Act.

    Section 11(1) Objection Raised Over Similar Trademark

    • The principal objection before the Registry arose under Section 11(1) of the Trade Marks Act, which deals with relative grounds for refusal of trademark registration, including situations where similarity with an earlier trademark may create a likelihood of confusion.
    • Lincoln Pharmaceuticals argued that the objection was unsustainable and that its detailed response to the examination report had not been properly considered.
    • One of the company’s key arguments was that even where competing pharmaceutical trademarks fall within the same class, differences in the composition of the respective pharmaceutical products may constitute an additional mitigating factor while assessing likelihood of confusion.

    Delhi High Court’s Elyon Pharmaceuticals Decision Cited

    • To support this argument, Lincoln Pharmaceuticals relied upon the Delhi High Court’s decision in Elyon Pharmaceuticals Pvt. Ltd. v. Registrar of Trademarks, C.A. (COMM.IPD-TM) 153/2021, decided on 23 August 2023.
    • In that case, the Delhi High Court had considered the marks β€œELEMENTAL” and β€œELMENTIN” and observed that differences in the pharmaceutical composition of products could provide an additional mitigating consideration when examining the possibility of public confusion.
    • Lincoln Pharmaceuticals relied on this reasoning to argue that the Registry’s Section 11(1) objection against β€œGLYPANTA” should not have resulted in rejection of its application in the manner adopted.

    Company Says β€˜GLYPANTA’ Was Already in Use Since 2023

    • Another argument raised before the High Court was that the Registry had relied upon trademarks that were proposed to be used, whereas Lincoln Pharmaceuticals claimed that β€œGLYPANTA” had been in use since 2023 and had acquired a substantial market for the product.
    • The company also objected to the fact that its application had been rejected before publication in the Trade Marks Journal.
    • Its contention was that publication would enable the statutory process to proceed and, if any third party wished to oppose the application, such opposition could thereafter be considered in accordance with law.

    Section 20 Permits Advertisement Despite Section 11 Objections: Lincoln Pharmaceuticals

    • Lincoln Pharmaceuticals placed particular reliance upon Section 20 of the Trade Marks Act, 1999.
    • It argued that even where objections under Sections 11(1) or 11(2) exist, the statutory framework permits advertisement of a trademark application.
    • The company therefore sought an opportunity for its application to be advertised rather than being rejected outright before publication.
    • The Registry’s counsel also raised an issue concerning non-joinder of the opposition party. Lincoln Pharmaceuticals responded that no private respondent was required at that stage because the challenge concerned rejection of the application before publication.
    • The High Court recorded that counsel appearing for the respondents could not dispute the provisions of Section 20.

    Gujarat High Court Relies on Section 20

    • After considering the submissions, Justice Mauna M. Bhatt noted that Section 20 permits advertisement despite objections under Section 11(1).
    • On that basis, the Court allowed Lincoln Pharmaceuticals’ appeal and quashed and set aside the Trade Marks Registry’s order dated 11 August 2025.
    • The Registry was then specifically directed to proceed with advertisement of the subject trademark application in accordance with the proviso to Section 20 of the Trade Marks Act.
    • The Court directed that the exercise be completed within three months from receipt of its order.

    Any Opposition to β€˜GLYPANTA’ Must Be Decided on Its Own Merits

    • Significantly, the High Court did not direct the Registry to grant final registration of β€œGLYPANTA.”
    • Instead, the Court restored the application to the stage of advertisement. It expressly provided that if any opposition is filed against the trademark application after advertisement, such opposition must be decided on its own merits.
    • Thus, Lincoln Pharmaceuticals succeeded in having the rejection order set aside and obtaining publication of its application, but the ultimate registrability of β€œGLYPANTA” remains subject to the statutory process, including any opposition that may be filed.

    Why the Judgment Matters for Trademark Applicants

    • The order is significant for trademark prosecution because it highlights the distinction between an examination-stage objection and the subsequent advertisement/opposition process.
    • In the circumstances before it, the Gujarat High Court relied on Section 20 to permit the application to proceed to advertisement despite the Section 11(1) objection, rather than allowing the pre-publication rejection to stand.
    • The decision is particularly relevant to pharmaceutical trademark applications, where the Registry frequently examines competing marks closely because of concerns regarding similarity and confusion. The case also demonstrates that factors such as the nature and composition of competing pharmaceutical products may be raised by an applicant while responding to relative-ground objections, though the Gujarat High Court did not finally adjudicate the merits of the β€œGLYPANTA” mark’s registrability in this order.

    Key Legal Takeaway

    The immediate principle emerging from the order is that the existence of a Section 11(1) objection does not, by itself in the circumstances considered by the Court, prevent the application from being advertised under Section 20.

    At the same time, advertisement should not be confused with registration. Publication gives third parties an opportunity to oppose the mark, and the Registry retains the responsibility to determine any such opposition on its merits.

    Connected Matter

    Delhi High Court Sets Aside Rejection of β€œELMENTIN” Trademark; Says Phonetic Similarity Must Be Assessed by Look, Sound and Surrounding Circumstances

    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.

    Source: Gujarat High Court

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  • Gujarat High Court Directs Dissenting Members to Vacate Flats for Society Redevelopment; Holds 75% Consent and Section 41A Requirements Satisfied

    Gujarat High Court Directs Dissenting Members to Vacate Flats for Society Redevelopment; Holds 75% Consent and Section 41A Requirements Satisfied

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 16.09.2026

    Gujarat High Court Directs Dissenting Members to Vacate Flats for Society Redevelopment; Holds 75% Consent and Section 41A Requirements Satisfied

    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 id amitnaren@outlook.com .  

    The Gujarat High Court has directed dissenting members of Amity Co-operative Housing Society Ltd. to hand over peaceful vacant possession of their flats within eight weeks, clearing the way for redevelopment of the nearly five-decade-old residential society in Paldi, Ahmedabad.

    Justice Mauna M. Bhatt, in Amity Co-operative Housing Society Ltd. through its Secretary and Chairman & Ors. v. State of Gujarat & Ors., R/Special Civil Application No. 10596 of 2024, held that the Society had followed the prescribed redevelopment procedure and fulfilled the conditions under Section 41A of the Gujarat Ownership of Flats Act, 1973. The judgment was delivered on 8 April 2025.

    The Court found that 72 out of 81 members had consented to redevelopment, comfortably exceeding the statutory 75% threshold, while the buildings were more than 25 years old and in a dilapidated condition.

    Nearly 50-Year-Old Housing Society Opts for Redevelopment

    • Amity Co-operative Housing Society is a registered society owning approximately 6,825 square yards (5,706.38 sq. metres) of land at Final Plot No. 9/A, Town Planning Scheme No. 6, Paldi, Ahmedabad.
    • A total of 81 flats were constructed on the property during 1974-75, making it one of the older residential societies in the Paldi area.
    • According to the Society, the buildings had deteriorated substantially over time. The record referred to corrosion in RCC slabs, beams, columns and foundations, major structural cracks and bending of balcony slabs, raising concerns over safety.
    • Considering repairs and renovation impracticable, the Society decided to pursue redevelopment. The process had commenced as early as 2016, when an advertisement was published inviting offers from builders and developers.

    Majority Members Approved Redevelopment

    • A General Body Meeting was held on 4 April 2021, followed by another meeting on 26 December 2021, to consider the redevelopment proposal.
    • The Court recorded that 72 out of 81 members consented to redevelopment and accepted the developer’s offer. The consenting members subsequently entered into an MoU with the developer in October 2022.
    • A structural engineer’s report described the buildings as more than 25 years old and unsound, unsafe and unstable.
    • The Ahmedabad Municipal Corporation had also issued a notice dated 1 April 2021 concerning the condition of the buildings. The photographs placed before the Court further supported the Society’s case regarding their dilapidated condition.

    Dissenting Members Object to Developer and MoU Terms

    • Respondent Nos. 6 to 14 opposed the redevelopment.
    • One of their objections was that the General Body meetings had contemplated redevelopment through BTI Infrastructure Developer LLP, whereas the MoU was ultimately entered into with the proprietorship concern Tameer Infrastructure.
    • They also objected to the MoU on the ground that it did not contain provisions for a security deposit and penalty, contending that this was contrary to Rule 23 of the Gujarat Ownership Flats Rules.
    • The developer responded that there had been a change in the constitution of the development entity and that the person undertaking the redevelopment remained connected with the project. It was further argued that neither a security deposit nor a penalty clause was mandatory under Rule 23.

    Section 41A Conditions Fulfilled: Gujarat High Court

    • The High Court found that the statutory requirements for redevelopment had been satisfied.
    • The Court specifically noted that the building was more than 25 years old, its condition was dilapidated, and 72 out of 81 members had consented to redevelopment, thereby satisfying the requirement of consent from not less than 75% of members.
    • The Court also examined the Society’s decision-making process and found that General Body Meetings had been held to discuss redevelopment and the developer’s offer. The majority-approved resolutions were followed by an MoU executed by the consenting members.
    • Accordingly, the Court found no defect in the procedure adopted by the Society for selecting and proceeding with the redevelopment proposal.

    Change in Developer’s Constitution Not Sufficient to Stop Redevelopment

    • The Court was also not persuaded by the dissenting members’ objection concerning the change from BTI Infrastructure Developer LLP to the proprietorship concern undertaking the redevelopment.
    • The judgment records that the Court did not find any material change sufficient to invalidate the redevelopment process and observed that the private respondents had failed to demonstrate a justifiable basis for the objection.

    Bank Guarantee and Penalty Clause Not Mandatory Under Rule 23

    • An important part of the judgment concerns the objections regarding the absence of a bank guarantee/security deposit and penalty clause.
    • The Court relied on an earlier coordinate-bench decision in Ratnamani Co-operative Housing Society Ltd. v. State of Gujarat and observed that providing a bank guarantee is not a mandatory requirement under Rule 23 of the Gujarat Ownership Flats Rules.
    • The MoU in the present case also provided for benefits including accommodation/transport-related arrangements, additional carpet area, gift money and rent.
    • The Court further held that a penalty payment was not mandatory in nature. Concerns relating to the project could also be addressed through project finance requirements and registration with the RERA authority, while the developer had filed an affidavit assuring compliance with the terms and conditions of the MoU.

    Minority Members Cannot Stall Redevelopment Once Statutory Conditions Are Met

    • The High Court referred extensively to the Gujarat High Court’s earlier decision in Rabari Tejmalbhai Gagabhai v. Ratnamani Cooperative Housing Society Ltd..
    • That decision identified the principal requirements under Section 41A for redevelopment, including the age of the building, its ruinous/dilapidated condition where applicable, and consent of at least 75% of members.
    • The earlier Division Bench had also observed that where statutory procedures have been followed, a relatively small group of dissenting members cannot stall redevelopment merely on their own suspicions and notions. Members nevertheless retain the ability to participate constructively and raise legitimate concerns regarding the terms of the Development Agreement.
    • This reasoning supported the Court’s conclusion that the objections of the dissenting members could not prevent redevelopment in the present case after the Society had complied with the statutory framework.

    Article 226 Can Be Used to Facilitate Redevelopment

    • The judgment also referred to Sarojben Kiritbhai Shah v. Ahmedabad Municipal Corporation concerning the High Court’s powers under Article 226 of the Constitution.
    • The precedent rejected the contention that a writ court could not direct non-consenting members to vacate merely because the Gujarat Ownership of Flats Act does not contain a summary eviction mechanism comparable to certain Maharashtra redevelopment laws.
    • Referring to Supreme Court decisions including Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657 and Dwarka Nath v. Income Tax Officer, 1965 3 SCR 536, the earlier decision recognised the wide remedial jurisdiction available to High Courts under Article 226.

    Dissenting Members Given Eight Weeks to Vacate

    • Having examined the redevelopment process, the Gujarat High Court concluded that the petitioners had followed due procedure and satisfied the conditions necessary to bring the redevelopment within Section 41A of the Gujarat Ownership of Flats Act, 1973.
    • Exercising its extraordinary jurisdiction under Article 226, the Court allowed the petition and directed Respondent Nos. 6 to 14 to hand over peaceful vacant possession within eight weeks from receipt of the order.
    • The Court also requested all private respondents to cooperate with the redevelopment of the Society.

    Why the Judgment Matters for Housing Society Redevelopment

    The ruling reinforces an important principle governing redevelopment of co-operative housing societies in Gujarat: once the requirements prescribed under Section 41A and the applicable redevelopment rules are fulfilled, a minority of dissenting members cannot ordinarily bring an otherwise valid redevelopment process to a standstill merely because they disagree with the majority decision.

    At the same time, the judgment does not eliminate the rights of minority members to challenge genuine statutory violations, fraud, procedural irregularities or deficiencies in a Development Agreement. Rather, the decision rests on the Court’s finding that the statutory conditions and redevelopment procedure had been complied with in this particular case. For housing societies, developers and flat owners, the ruling highlights the importance of maintaining a clear documentary record of General Body Meetings, member consent, structural condition, developer selection, resolutions, MoUs and compliance with the Gujarat Ownership of Flats Act and Rules.

    Connected Matter

    Gujarat HC: Dissenting Members Cannot Override Majority Decision on Redevelopment Without Showing Illegality

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    Source: Gujarat High Court

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