Lawyer’s Fees: Justifying The UNJUSTIFIABLE?

“Your bill is very escalated.”

“I don’t think you have put in 4 man-hours of your time in this draft.”

“You cannot equate yourself with your ex-firm in billing.”

The list goes on. These are some of the kind words which some people have used for evading, not merely avoiding, payments to their lawyers or cutting their lawyers’ bill to an illogical amount. The peers who are now in private practice routinely share such soothing words from their Clients who suddenly become wiser once they switch from a law firm to a counsel with private practice.

Some of the gems who have used such kind words to their lawyers have, in the course of their lives, worked in law firms and raised such bills to their client. When they join as an in-house counsel, these very bills become objectionable.

Worst case scenario is with some Clients who happily pay law firms for sending a 21 word letter for a routine follow up but will not pay to their counsel who had done substantial amount of work.

When these people use the word that the bill is escalated, I wonder why do they remain silent when their lawyer is revising the draft repeatedly to augment it to make it far better than a Senior Associate in a law firm can prepare. This genre of Client is happy with his lawyer putting in extra effort but will become unhappy if the lawyer is charging 25% less than what he routinely pay to a run-of-the-mill law firm.

To deal with such a Client it simple.

For instance, when a Client gives an example that some lawyers are charging 15% lesser than you, please tell him that he has not done his research, he can very well find people who are charging 50% lesser. By this method, you will make sure that your Client saves 35% more on his billing so that you can focus on real Clients than these gems!

Full Text of Judgment of Delhi High Court on Nursery Admissions

Here is the  full text of judgment of Delhi High Court pronounced today on nursery admission whereby the Bench has held that the Right To Education Act does not apply to nursery schools.

HC Judgement.

Full Text of Justice Verma Committee Report.

The full text of Justice Verma’s report (over 10 MB PDF file) is at the following link: -

Justice Verma Committee Report Dushyant

Though there are voices coming from both sides–in support and against the suggestions–I’m glad that at least a committee showed the resolve to present suggestions to the Govt and that too at such quick speed.

Happy to share that a dear lawyer friend, Shwetasree Majumdar also assisted His Honour Verma in this MASSIVE task.

Hope the law changes after deliberations by all concerned.

Sentencing Order by CBI Judge In Teacher Recruitment Matter.

Following is the order on sentencing by the Special Judge CBI, Mr. Vinod Kumar in the teacher recruitment matter.

Recruitment scam ruling

Not writing anything since a lot has been written already.

Hope the matter reaches finality soon after appeals process.

Court Fee In Delhi: Increased or DECREASED For IP Matters?

A little background:

Government of NCT of Delhi issued a notification on July 23, 2012 bringing into force the Court Fee (Delhi Amendment) Act, 2012. The notification increased the Court Fee applicable in Delhi since August 01, 2012.

In Schedule I dealing with Ad Valorem Fees, few significant changes in the civil suits–for written statements too–and  cheque bouncing cases by the notification are the following: -

1. Upto fifty thousand rupees–two percent on such amount or a thousand rupees as fixed fee, whichever is more;
2. From fifty thousand rupees to twenty lakh–three percent on such amount or value; and
3. Above twenty lakhs–four percent on such amount.

As expected, the fixed fee on the written statements and the fees for the cheque bouncing cases of higher amount were the biggest sufferers. Imagine a situation where a person has bounced cheques worth 4 million. His court fee alone before the Magistrate shall be one hundred and sixty thousands in the notification.

It is true that some fees needs to be increased in some segments but no increase should have happened, as presently, without keeping in mind the paying capacity of a litigant.

Since the notified Schedules increased Court Fee substantially across the board, Delhi High Court Bar Association (DHCBA) filed a writ petition in the High Court of Delhi and obtained a stay on the notification on August 9, 2012. During the course of this writ petition, it came to be known that the Govt approached the Supreme Court by filing a Special Leave Petition against the stay order. Their Honours sitting in the Supreme Court, on September 26, 2012, vacated the stay granted by the High Court. Meaning thereby, the notification would prevail.

However, later on DHCBA appeared before the Supreme Court and apprised the Bench their view. On October 16, SC modified the earlier order dated September 26 only to the extent that the written statements will not have the fixed fee and the cheque bouncing cases would go on with the earlier fees.

The Bench disposed off the SLP on October 30 requesting the High Court to decide the writ petition at the earliest.

With this background, let us see one branch of the civil suits pending in the High Court–intellectual property (IP) matters pertaining to actions for infringement of patent, design, copyright and trademark. In the Schedule II to the notification detailing the fixed fee, at Article 30, following are the charges specifically for the IP suits: -

1.  When filed before a Civil Judge–five hundred rupees;
2. When filed before a District Judge–one thousand rupees; and
3. When filed before the High Court–five thousand rupees.

Though the first entry is GRAVELY flawed since the IP matters can never be filed before a Civil Judge. The District Court is the first instance Court for IP matters.

Coupled with the enhanced fees for the applications, vakalatnama (form of authorisation for an advocate to appear) and other sundry charges–not to forget 4 percent on 2 million (eighty thousand) and five thousand rupees as fixed fee, counsels were affixing fees close to ninety thousands for IP actions. It is not difficult to imagine that fresh filing would have surely taken a beating.

Since the notification came into force and effect from August 01, 2012, the counsels were also required to make up deficient court fee in the suits filed after this date.  Article 30 states that suit and or petitions will require fixed fees of five thousand rupees. The counter claims were always filed with the fees proportionate to the amount claimed. Same is happening as of now too except for the fixed fees.

Last week, on December 7, 2012, to the Author’s knowledge–subject to correction–His Honour Mr. V. K. Jain, in a civil suit admitted a fresh civil action with only ten thousand rupees as court fees. Now, a very seasoned and distinguished intellectual property attorney filed this suit. I’m sure that the ever so generous counsel will share some details to enlighten me. Though I understand that some counsels are now filing suits with only Schedule II fees.

The order is available here.

Following is an extract of the order: -

As per Article 30 of Schedule II to the Court Fee Act, as applicable to Delhi, in any suit or petition under the Intellectual Property Rights, the court fee required to be paid is Rs.5,000/- when the suit or petition is filed before the High Court. Since this is a suit seeking to enforce Intellectual Property Rights of the plaintiff Company, it is clearly governed by the aforesaid Article and accordingly requisite court fee stands already paid.

What I, as a counsel practicing intellectual property law myself, do not understand is how come the ad valorem fee (in Schedule I) gets a waiver. The said Article nowhere says that the counter claims, of whatever amount, shall not require ad valorem fees. Why sudden exemption to plaints then? My limited understanding of the notification and the Schedules nowhere tells me that the Schedule I is, henceforth, inapplicable to IP matters. If it is, then the Govt should rectify it to remove the anomaly since we were, earlier, filing even IP matters with the increased Court fees.

The Schedule II is in addition to or rather an exemption from Schedule I requires clarity.

My senior colleagues in the Bar will agree with me that, invariably, cash rich companies file cases to protect their intellectual property. If the idea of the Government was to give these companies some exemption so to say then same logic should apply to every citizen who is approaching the High Court after, presently, arranging mammoth Court Fees and resources.

I am again stressing everyone to read the increased jurisdiction note and enlighten me with their thoughts for me to gain knowledge on this critically important segment in my area of practice.

I am sure in times to come, I will be able to get more clarity since, as of now, I have very little.

Suggestions welcome.

Sino-Indian Border Dispute: Time To resolve.

Recent coverage of remembering 1962 Indo-China war in newspapers and Mr. A. G. Noorani’s well researched piece in the Frontline (Nov 17-30) has made one thing clear, unless we shed the mindset which resulted from memory of ‘Chinese aggression’ and ‘betrayal’, we cannot solve the border dispute ever.

Brief points made by Mr. Noorani, a veteran journalist, about late Mr. J. L. Nehru’s mistakes are as follows: -

1. Uunilaterally revising the McMahon Line and the maps in 1954;
2. Refusal to negotiate during the period 1954-58;
3. Assertion of a false claim in 1959;
4. Refusal to accept China’s claims in the Aksai Chin.;
5. Rebuff to Pour Tsu-Li in May 1959;
6. More importantly, rejection of Zhou Enlai’s proposal in April 1960 though it accepted the McMahon Line and The Forward Policy

China is not a nation to be forthcoming in taking first steps in maintaining cordial relations with neighbours.

Just today, November 29, 2012, CNN covered the news how China recently released electronics passports showing map of China including regions claimed by India, Philippines, Vietnam, Taiwan and Malaysia. China claimed these territories earlier too but now has introduced them in passports.

So far, only Vietnam and Philippines have lodged diplomatic complaints.

It has far reaching consequences. We do not know India’s position but Vietnam has refused to stamp these passports for visa applications and is issuing visa on separate piece of papers, lest it will interpreted as acquiescence to China’s claim.

In this  day and age, a dispute about few square kms might seem flimsy but just imagine the plight of people living in these territories. South Cina Sea is another such example which is stated to be full of natural resources

But with General Election listed for 2014, I have no clue what the UPA or the future Govt intends to do since they are already occupied in other matters. Maybe we need leaders who are not living with a rear-view mirror mentality and are pragmatic to solve this half a century old dispute.

I reckon China might prove far better neighbour than Pakistan in at least reaching the table for settlement. But for this, we will need to educate our current generation about what really happened leading to 1963 conflict so that there is no instilled-acrimony when the leaders of both sides are negotiating.

Original Jurisdiction of Delhi High Court: Should Be Enhanced?

Been getting few text messages from my brethren that their Honours sitting in the High Court of Delhi in a meeting yesterday have increased the pecuniary jurisdiction from presently Rs. 2 to Rs. 20 million.

Brief point: When a person institutes a civil action, the lawsuit has a basic monetary value attached to it. Like if it is a property matter, then the value of the property–per the circle rate prevailing–or if it is a recovery suit then the amount sought to be recovered becomes the value of the lawsuit. Or the amount of notional/actual damages suffered in intellectual property matters.

Depending on this valuation a litigant in Delhi can file his lawsuit, presently in the District Courts if the value is less than Rs. 2 million; or in the High Court if the value exceeds Rs. 2 million.

The text messages doing the rounds, if confirmed, means that the District Courts will now try and hear the civil suits up to the value of Rs. 20 million. Last time the increase was from Rs. 500,000 to Rs. 20,00,000 in the year 2002. The High Court Registry transferred all the pending civil lawsuits up to the value of Rs. 2 million to the District Court. Same shall happen this time around.

There have always been concerns whether the pecuniary jurisdiction of Delhi High Court should increase or not. In 2002 when the jurisdiction increased from 500,000 to Rs. 2 million, Delhi High Court Bar Association raised a point and there was a strike as well. However, as per Hindu’s article, some legal experts welcomed this decision also. There are arguments on both sides. Many a times, recently, lawyers body has raised the demand of increase in jurisdiction from the present Rs. 2 million.

As a lawyer who has been practicing in Delhi since 2005, it is my experience that if the pecuniary jurisdiction of Delhi High Court is increased, it will be superbly beneficial to people awaiting their pending appeals to be heard in the High Court. There are criminal appeals, matters pertaining to senior citizen category, writ petitions etc which are pending since long. This jurisdiction shall always remain with the High Court.

As on November 22, 2012 there are 35 Judges in Delhi High Court as against the sanctioned strength of 48. Once this figure is achieved, all these 48 judges can bring down the pendency data magnificently down. Presently, out of the 35, only 6 are hearing the matters pertaining to the original jurisdiction. These 6 judges can prove to be a great resource in bringing down pendency level of criminal appeals, bails, writs and so forth.

It is a public knowledge about the delay in judicial disposal. Just google “judicial delay”. The Law Ministry and various Judges have also raised this point many a times.

On Dec 20, 1991 when Rajya Sabha was hearing the motion to increase the jurisdiction from Rs. 100,000 to Rs. 500,000, even then, in 1991, there was an interesting suggestion that the fee should increase to Rs. 5 million! Today, in 2012, when the property prices in Delhi have shot up massively and circle rates of property recently increased again, it will be unfair to burden the High Court with the original jurisdiction for a small amount like Rs. 2 million.

If such an increase happens let it test the water. Maybe in the long run, like earlier examples, it might prove to be a good decision.

(At 6 pm, Delhi High Court Bar Association (DHCBA) has released a Notice saying that the Executive Committee of DHCBA has given a representation to the Chief Justice and other Judges of the High Court for consideration. Following is the notice from DHCBA:)

Importing Contacts From Nokia To Samsung?

Here is a NON-IP post but the labour which I undertook to transfer contacts from Dad’s old Nokia to a newly bought Samsung made me write the instant post.

Gone are the days when a PC Suite software of Nokia could assist us in transferring our data from older Nokia to a new one. Now we have multiple platforms–Blackberry which is my favourite, Andriod, iOS, Windows among others. Since contacts were in Nokia, I first used the latest Nokia Suite and Samsung Kies on my Vaio. It proved to be a futile exercise since Nokia did not export the contacts in a .CSV format which the Kies required.

I turned to the older version of Nokia’s PC Suite program which I used till 2009. This version allowed me to export contacts in a .CSV format. However, Kies was not accommodating enough and imported names but not  the cellphone numbers and email addresses–because of some field conflict I reckon.

Thanks to Javed Anwer of TOI who suggested I try the following route: -

Nokia to PC to Google Contacts to Samsung Galaxy.

I uploaded the .CSV file to dad’s Google Contacts which was a smooth shift. Then came the stage of applying the sync from Google Contacts to Galaxy. After adding the SNS account option in the Contacts main menu, the entire address book got transferred to Galaxy from Google Contacts.

Success! Now dad is only trying to adjust to a newer platform rather than worrying about losing contacts.

Blackberry does its backups in a .bbb file, Nokia as .nbu and so forth. Maybe some day the transition is even smoother than today.

Hope it helps.

Delhi High Court allows appeal by Liv.52. Restrains LIV-T.

A long drawn out legal battle, which started in 1996, has reached some finality on November 9, 2012 when Their Honours Pradeep Nandrajog and Manmohan Singh sitting in the Division Bench of Delhi High Court reversed the judgement by His Honour Dr. S. Muralidhar dismissing civil action by ‘Liv.52′ against ‘LIV-T’.

The judgement by His Honour Dr. Muralidhar is available here. The decision by the Appeals Court is available here.

Brief facts: Plaintiff, Himalaya Drug Co. (HDC), is registered proprietor since 1957–and user since 1955–of trademark ‘Liv.52′ for medicinal preparationn for treatment of disorder of liver. HDC initiated action against LIV-T trademark of SBL Limited (SBL), the Defendant, for using the trademark for the identical medicinal preparation.

Brief legal hisotry of this battle is that HDC sent a legal notice to SBL in March 1996 to cease and desist the usage of the LIV-T trade mark. The notice wasn’t a success and HDC instituted a civil action against SBL in Delhi High Court in the same year claiming damages to the tune of over Rs. 500,000.

The Court granted ex-parte interim relief to HDC on 23rd May, 96 and restrained LIV-T. The Court later, on 12th July, 96, confirmed the interim injunction and restrained SBL. SBL challenged this injunction order in the Appeals Court claiming LIV to be derived from descriptive and generic term liver and used it in reference to it as well.

Their Honours sitting in the Division Bench vacated the injunction on 15 July, 1997 agreeing with SBL’s contentions that the mark Liv.52 and LIV-T are not deceptively similar. The Court further held that the acronym, LIV, has become publici juris and generic by multiple people using LIV to sell their medicinal preparations.

HDC challenged this order in the Supreme Court which remanded the matter again to the Single Judge with a request to decide the matter expeditiously, on 27 February 1998.

The Single Judge framed issues in the matter on 30th November 98 and the trial commenced.

In 2003, due to increase in the pecuniary jurisdiction of Courts, all the civil suits pending in High Court which were of less than 2 million in valuation were transferred to the District Courts. So was also the fate of HDC’s civil suit. After an amendment application which enhanced the valuation of the suit, the matter was again transferred to the High Court in the year 2005.

Both parties led their evidence and after the final arguments, His Honour Dr. Muralidhar decided all the issues. Issue No. 10, which is reproduced herein, was the crux of the lawsuit: -

Whether the use of the trademark “LIV-T” by the Defendant amounts to infringement of trade mark of the Plaintiff?

His Honour dismissed this issue, as also HDC’s suit, primarily, on following grounds:

1) Liv followed by a dot and numerals cannot be similar to LIV written in capital followed by a hyphen and a capital T;

2) The competing marks ‘Liv.52′ and ‘LIV-T’ are not phonetically similar;

3) There was no likelihood of confusion at the end of a pharmacist in comparing the two marks; and

4) HDC had not been able to establish any evidence on actual confusion by a consumer.

HDC’s counsel, Mr. Hemant Singh, one of the best intellectual property litigation lawyer, stressed on the aspect that SBL, all this while, never raised any objection to HDC’s trademarks and never sought rectification as well. HDC also pressed that the marks Liv.52 and LIV-T were overall structurally and phonetically similar. HDC also argued that being medicinal preparations, utmost care should be there in allowing similar sounding brands to compete.

SBL’s primary argument was that the suffix LIV has become common to the trade and there are various manufacturers using LIV to denote their medicines. This argument weighed in with His Honour Dr. Muralidhar in His observation that LIV has indeed become generic and publici juris.

HDC, obviously, carried the judgement in appeal.

The Division Bench (DB), before deciphering the impugned order, observed that since HDC’s trademark ‘Liv.52′ was registered since 1957, under Section 32 of the old Act, the registration was conclusive proof of its validity. Per the Division Bench, this discussion assumed significance since the Single Judge held that ‘LIV’ has become publici juris which is a wrong finding in light of Section 32.

The DB also placed strong reliance on Issue No. 12 which is reproduced here: -

Whether the word mark “LIV” is Publici-Juris and if so, to what effect?

The Appeals Court further held that the competing mark have to be judged in the light of overall similarity and not by placing them next to each other. The DB also observed that it was SBL which had the onus to prove the issue that whether ‘LIV’ has become publici juris or generic and it produced no such evidence.

Moreover, the DB dealt in detail the case laws protecting the marks even though the marks contained component derived from organ / salt. Furthermore, the DB also held that as ‘Liv.52′ was HDC’s registered mark since 1957 and the fact that SBL never applied for the cancellation of these trademarks, in light of Section 32, ‘Liv.52′ enjoys a formidable and enforceable reputation.

Unlike Section 37 of The Lanham Act of the US which is reproduced here: -

§ 37 (15 U.S.C. § 1119). Power of court over registration; certification of decrees and
orders
In any action involving a registered mark the court may determine the right to registration, order the cancellation of registrations, in whole or in part, restore cancelled registrations, and otherwise rectify the register with respect to the registrations of any party to the action. Decrees and orders shall be certified by the court to the Director, who shall make appropriate entry upon the records of the Patent and Trademark Office, and shall be controlled thereby.

there is no such corresponding provision in Trade Marks Act, 1999 to enlarge the scope of an infringement proceeding, as undertaken by His Honour Muralidhar in the impugned judgement.

The DB, therefore, reversed the judgement by His Honour Muralidhar and granted the injunction to HDC’s Liv.52 against SBL’s LIV-T and allowed SBL to exhaust the pending stock within a period of six months.

That this order shall reach the Supreme Court is a but natural consequence. Let us await what finally becomes of this long legal battle.

But the IP jurisprudence should indeed carve out a stricter measure qua the trademarks for medicinal preparations. Here is an example how a wrong medication can be fatal. A 65 years old male in Mumbai died due to consuming wrong medication which the chemist gave to him. But then, is confusion at the end of a pharmacist alone to be blamed? What about few doctors writing the prescription in largely illegible handwriting? I hope the Indian Medical Council has some study for this and is taking some corrective measures.

Let us await if there is any observation by the Supreme Court in the instant matter.

How few restaurants charge service tax. Double check! (Revised)

With the routine increase of number of services in the ambit of service tax regime, it is paramount that we, as taxpayers, are informed about the incidence of tax. The concept of service tax is applicable to a wide variety of services–including legal services in some cases as per the notification by the Government the blog post can be accessed here.

The instant post, which is influenced from the recent queries I received from many people on Twitter and Linkedin and also a notice issued by the Delhi High Court Bar Association (DHCBA) to educate on incidence of service tax, shall examine the practice which many eating joints have adopted in charging service tax.

Following is an example how various eating joints are levying service tax:

1. Rs. 1000 for the food consumed;
2. Rs. 100 service charges on Rs. 1,000;
3. Rs. 54.34 as service tax (@ 4.94% on 1,000+100); and
4. Rs. 145 as VAT (@ 14.5%).
5. Rs. 1,299.34 is the final bill.

As per DHCBA’s notice, the 3rd entry is flawed and instead of Rs. 54.34, the restaurant should have charged only Rs. 4.94 (4.94% on service charge of Rs. 100).

This understanding is contrary to the Notification No. 24/2012 released on June 6, 2012 which can be accessed here. Per the Notification, not only the food and beverages are in the ambit of service tax regime, the abatement of 60% is provided to a restaurant and of 40% to outdoor catering.

Meaning thereby, in the given illustration, on the gross bill of Rs. 1,100 the Service tax will be charged on Rs. 440–after deducting 60% abatement.

However, there have been instances where Service Tax is still charged on take away items, like a pastry for instance. This is an area which needs clarification and DHCBA should indeed release a notice and / circular about such incidence where Service Tax is still charged when not required.

The owner alone can elaborate on the final usage of this excess amount charged. However, the customers need to be careful and scrutinise the bill as well. I really hope that the Tax Department makes sure to tally the figure in entry of service tax corresponding with the service tax deposited by these restaurants.

Most consumers, including your truly, do not pay specific attention to the calculation of the tax and charges. We start calculating the tip amount and leave the joint. It is our right to bring it to the attention of the restaurant that the invoice is flawed and needs rectification. The restaurant cannot refuse correcting the bill and please make sure you point out this mistake to the eating joint.

All the best. Thanks to the Delhi High Court Bar Association in taking this initiative of releasing a notice about this practice.

Thanks to those who commented and helped me revise the post.