Q.1 What do you mean by free consent? Under what circumstances consent is considered
as free? Explain.
One of the essential of a valid contract is free consent. Sec. 13 of the act defense consent has
two or more persons are said to consent where they agree upon think in the same sense.
There should be consents at the ad idem or identity of minds.
The validity of consent depends not only on consents parties but their consents must also be free.
According to section 14, consent is said to be free when it is not caused by
1) Coercion has defined under sec.15 or
2) Undue influence as defined under sec. 16 or
3) Fraud has defined under sec. 17 or
4) Mis-representation or defined under sec. 18 or
5) Mistake subject to the probations of sec. 21& 22.
1) Coercion:
Sec. 15 “coercion is the committing or threatening to commit any act forbidden by the Indian
penal code or the unlawful detaining or threatening to detain any property, to the prejudice of any
person whatever, with the intention of causing any person to enter into an agreement. “ It is
immaterial weather the Indian penal code is or is not in force in the place where the coercion is
employed
Under English Law, coercion must be applied to one’s person only whereas under Indian Law it
can be one’s person or property.
So also under English Law, the subject of it must be the contracting party himself or his wife,
parent, child or other near relative. Under Indian Law, the act or threat may be against any
person. It is to be noted that he act need not be committed in India itself. Unlawful detaining or
threatening to detain any property it also coercion.
While threat to sue does not amount to coercion threat to file a false suit amounts to coercion
since Indian Penal Code forbids such an act.
2) Undue influence:
In the words of Holland,” Undue influence refers to “the unconscious use of power over another
person, such power being obtained by virtue of a present or previously existing dominating
control arising out of relationship between the parties.”
According sec. 16(1) “ A contract is said to be induced by undue influence where the relation
subsisting between the parties are such that one of the parties is in a position to dominate the will
of the other and uses that position to obtain an unfair advantage over the other.”
A person is deemed to be in a position to dominate the will of other.
(a) Where he holds a real or apparent authority over the other or where he stands in a
fiduciary relation to the other; or
(b) Where he makes a contract with a person whose mental capacity is temporarily or
permanently affected by reason of age, illness or mental or bodily distress:
(c) Where a person, who is in a position to dominate the will of another, enters into a
contract with him and the transaction appears to be unconscionable. The burden of
proving that such contract was not by undue influence shall lie upon the person in a
position to dominate the will of the other.
Both coercion and undue influence are closely related. What contributes coercion or undue
influence depends upon the facts of each case.
Sec. 16(i) provides that two elements must be present. The first one is that the relations
subsisting between the parties to a contract are such that one of them is in a position to dominate
the will of the other.
Secondly, he uses that position to obtain unfair advantage over the other. In other words, unlike
coercion undue influence must come from a party to the contract and not a stranger to it. Where
the parties are not in equal footing or there is trust and confidence between the parties, one party
may be able to dominate the will of the other and use the position to obtain an unfair advantage.
However, where there is no relationship shown to exit from which undue influence is presumed,
that influence must be proved.
3) Fraud:
A false statement made knowingly or without belief in its truth or recklessly careless whether it be
true or false is called fraud.
Sec. 17 of the act instead of defining fraud gives various acts which amount to fraud.
Sec. 17: Fraud means and includes any of the following acts committed by a party to a contract or
with his connivance or by his agent to induce him to enter into contract:
1) The suggestion that a fact is true when it is not true by one who does not believe it to be
true. A false statement intentionally made is fraud. An absence of honest belief in the
truth of the statement made is essential to constitute fraud. The false statement must be
made intentionally.
2) The active concealment of a fact by a person who has knowledge or belief of the fact.
Mere non-disclosure is not fraud where there is no duty to disclose.
3) A promise made without any intention of performing it.
4) Any other act fitted to deceive. The fertility of man’s invention in devising new schemes of
fraud is so great that it would be difficult to confine fraud within the limits of any
exhaustive definition.
5) Any such act or omission as the law specially declares to be fraudulent.
4) Misrepresentation:
Before entering into a contract, the parties will may certain statements inducing the contract.
Such statements are called representation. A representation is a statement of fact made by one
party to the other at the time of entering into contract with an intention of inducing the other party
to enter into the contract. If the representation is false or misleading, it is known as
misrepresentation. A misrepresentation may be innocent or intentional. An intentional
misrepresentation is called fraud and is covered under section 17 sec. 18 deals with an innocent
misrepresentation.
5) Mistake:
Usually, mistake refers to misunderstanding or wrong thinking or wrong belief. But legally, its
meaning is restricted and is to mean “operative mistake”. Courts recognize only such mistakes,
which invalidate the contract. Mistake may be mistake of fact or mistake of law.
Sec. 20”Where both parties to an agreement are under a mistake as to a matter of fact essential
to the agreement, the agreement is void”.
Sec.21” A contract is not voidable because it was caused by a mistake as to any law in force in
India: but a mistake as to a law not in force in India has the same effect as a mistake of fact”.
Bilateral mistake: Sec.20 deals with bilateral mistake. Bilateral mistake is one where there is no
real correspondence of offer and acceptance. The parties are not really in consensus-ad-item.
Therefore there is no agreement at all.
A bilateral mistake may be regarding the subject matter or the possibility of performing the
contract.
Q.2 Define negotiable instrument. What are its features and characteristics? Which are the
different types of negotiable instruments? If Mr. A is the holder of a negotiable instrument,
under what situations
i. Will he be the Holder in due course?
ii. He has the right to discharge?
iii. He can make endorsements?
Five months after date pay Tarn or (to his) order the sum of Rupees Ten Thousand
only for value received.
To Accepted Stamp
Sameer Sameer S/d
Address Rajeev
iii. Cheques
Cheque is a very common form of negotiable instrument. If you have a savings bank account or
current account in a bank, you can issue a cheque in your own name or in favour of others,
thereby directing the bank to pay the specified amount to the person named in the cheque.
Therefore, a cheque may be regarded as a bill of exchange; the only difference is that the bank is
always the drawee in case of a cheque.
The Negotiable Instruments Act, 1881 defines a cheque as a bill of exchange drawn on a
specified banker and not expressed to be payable otherwise than on demand. Actually, a cheque
is an order by the account holder of the bank directing his banker to pay on demand, the specified
amount, to or to the order of the person named therein or to the bearer.
iv. Hundis
A Hundi is a negotiable instrument by usage. It is often in the form of a bill of exchange drawn in
any local language in accordance with the custom of the place. Some times it can also be in the
form of a promissory note. A Hundi is the oldest known instrument used for the purpose of
transfer of money without its actual physical movement. The provisions of the Negotiable
Instruments Act shall apply to hundis only when there is no customary rule known to the people.
Types of Hundis
There are a variety of hundis used in our country. Let us discuss some of the most common ones.
Shah-jog Hundi: one merchant draws this on another, asking the latter to pay the amount to a
Shah. Shah is a respectable and responsible person, a man of worth and known in the bazaar. A
shah-jog Hundi passes from one hand to another till it reaches a Shah, who, after reasonable
enquiries, presents it to the drawee for acceptance of the payment.
Darshani Hundi: This is a Hundi payable at sight. The holder must present it for payment within a
reasonable time after its receipt. Thus, it is similar to a demand bill.
Muddati Hundi: A Muddati or miadi Hundi is payable after a specified period of time. This is
similar to a time bill.
There are few other varieties like Nam-jog Hundi, Dhani-jog Hundi, and Jawabee Hundi, Jokhami
Hundi, Fireman-jog Hundi, etc.
Features of Negotiable Instruments
After discussing the various types of negotiable instruments let us sum up their features as under.
A negotiable instrument is freely transferable. Usually, when we transfer any property to
somebody, we are required to make a transfer deed, get it registered, pay stamp duty, etc.
But, such formalities are not required while transferring a negotiable instrument. The ownership is
changed by mere delivery (when payable to the bearer) or by valid endorsement and delivery
(when payable to order). Further, while transferring it is also not required to give a notice to the
previous holder.
ii. Negotiability confers absolute and good title on the transferee. It means that a person who
receives a negotiable instrument has a clear and undisputable title to the instrument. However,
the title of the receiver will be absolute, only if he has got the instrument in good faith and for a
consideration. Also the receiver should have no knowledge of the previous holder having any
defect in his title. Such a person is known as holder in due course. For example, suppose Rajeev
issued a bearer cheque payable to Sanjay. A person, who passed it on to Girish, stole it from
Sanjay. If Girish received it in good faith and for value and without knowledge of cheque having
been stolen, he will be entitled to receive the amount of the cheque. Here Girish will be regarded
as ‘holder in due course’.
iii. A negotiable instrument must be in writing. This includes handwriting, typing, computer print
out and engraving, etc.
iv. In every negotiable instrument there must be an unconditional order or promise for payment.
v. The instrument must involve payment of a certain sum of money only and nothing else. For
example, one cannot make a promissory note on assets, securities, or goods.
vi. The time of payment must be certain. It means that the instrument must be payable at a time
which is certain to arrive. If the time is mentioned as ‘when convenient’ it is not a negotiable
instrument. However, if the time of payment is linked to the death of a person, it is nevertheless a
negotiable instrument as death is certain, though the time thereof is not.
vii. The payee must be a certain person. It means that the person in whose favour the instrument
is made must be named or described with reasonable certainty. The term ‘person’ includes
individual, body corporate, trade unions, even secretary, director or chairman of an institution.
The payee can also be more than one person.
viii. A negotiable instrument must bear the signature of its maker. Without the signature of the
drawer or the maker, the instrument shall not be a valid one.
ix. Delivery of the instrument is essential. Any negotiable instrument like a cheque or a
promissory note is not complete till it is delivered to its payee. For example, you may issue a
cheque in your brother’s name but it is not a negotiable instrument till it is given to your brother.
x. Stamping of Bills of Exchange and Promissory Notes is mandatory. This is required as per the
Indian Stamp Act, 1899. The value of stamp depends upon the value of the promote or bill and
the time of their payment.
Persons other than the original obligor and obligee can become parties to a negotiable
instrument. The most common manner in which this is done is by placing one's signature on the
instrument (“indorsement”): if the person who signs does so with the intention of obtaining
payment of the instrument or acquiring or transferring rights to the instrument, the signature is
called an indorsement. There are four types of indorsements contemplated by the Code:
1. in good faith;
2. for value;
3. without notice of any defenses to payment,
the transferee is a holder in due course and can enforce the instrument without being subject to
defenses which the maker of the instrument would be able to assert against the original payee,
except for certain real defenses. These real defenses include (1) forgery of the instrument; (2)
fraud as to the nature of the instrument being signed; (3) alteration of the instrument; (4)
incapacity of the signer to contract; (5) infancy of the signer; (6) duress; (7) discharge in
bankruptcy; and, (8) the running of a statute of limitations as to the validity of the instrument.
The holder-in-due-course rule is a rebuttable presumption that makes the free transfer of
negotiable instruments feasible in the modern economy. A person or entity purchasing an
instrument in the ordinary course of business can reasonably expect that it will be paid when
presented to, and not subject to dishonor by, the maker, without involving itself in a dispute
between the maker and the person to whom the instrument was first issued (this can be
contrasted to the lesser rights and obligations accruing to mere holders). Article 3 of the Uniform
Commercial Code as enacted in a particular State's law contemplate real defenses available to
purported holders in due course.
The foregoing is the theory and application presuming compliance with the relevant law.
Practically, the obligor-payor on an instrument who feels he has been defrauded or otherwise
unfairly dealt with by the payee may nonetheless refuse to pay even a holder in due course,
requiring the latter to resort to litigation to recover on the instrument.
Ans.:
Indemnity Guarantee
Comprise only two parties- the There are three parties namely
indemnifier and the indemnity the surety, principal debtor and
holder. the creditor
Where several persons are bound together in any bond, bill or other writing as joint debtors or
as joint sureties, in any sum of money made payable to any person, his/her executors,
administrators, order or assign and such bond, bill, or other writing shall be paid by any of such
joint debtors or joint sureties, the creditor shall assign such bond, bill, or other writing, to the
person paying the same; and such assignee shall, in his/her own name, as assignee, or
otherwise, have such action or remedy as the creditor himself/herself might have had against the
other joint debtors, or sureties, or their representatives, to recover such proportion of the money,
so paid, as may be justly due from the defendants.
Where several persons are bound together in any bond, bill or other writing or judgment as
joint debtors or as joint sureties, in any sum of money, made payable to any person or
corporation, the executors, administrators, successors, order or assigns, and 1 or more of such
persons was, at the time of making, signing or executing the same, or at the time of the rendition
of such judgment, an infant, such fact shall be no defense in any action, proceeding or suit for the
enforcement of the liability of those bound there under, excepting as regards the person who was
an infant at the time of making, signing or executing such bond, bill or other writing, or who was
an infant at the time such judgment was rendered.
(a) If a judgment recovered against principal and surety shall be paid by the surety, the
creditor shall mark such judgment to the use of the surety so paying the same; and the transferee
shall, in the name of the plaintiff, have the same remedy by execution or other process against
the principal debtor as the creditor could have had, the transfer by marking to the use of the
surety being first filed of record in the court where the judgment is.
(b) Where there is a judgment against several debtors or sureties and any of them shall pay
the whole, the creditor shall mark such judgment to the use of the persons so paying the same;
and the transferee shall, in the name of the plaintiff, be entitled to an execution or other process
against the other debtors or sureties in the judgment, for a proportion able part of the debt or
damages paid by such transferee; but, no defendant shall be debarred of any remedy against the
plaintiff or the plaintiff's representatives or assigns by any legal or equitable course of proceeding
whatever.
Q.4.a. Mention the remedies for breach of contract. How will the injured party claim it?
The doctrine of privity in contract law provides that a contract cannot confer rights or impose
obligations arising under it on any person or agent except the parties to it.
The premise is that only parties to contracts should be able to sue to enforce their rights or claim
damages as such. However, the doctrine has proven problematic due to its implications upon
contracts made for the benefit of third parties who are unable to enforce the obligations of the
contracting parties.
Third-party rights:
Privity of contract occurs only between the parties to the contract, most commonly contract of
sale of goods or services. Horizontal privity arises when the benefits from a contract are to be
given to a third party. Vertical privity involves a contract between two parties, with an independent
contract between one of the parties and another individual or company.
If a third party gets a benefit under a contract, it does not have the right to go against the parties
to the contract beyond its entitlement to a benefit. An example of this occurs when a
manufacturer sells a product to a distributor and the distributor sells the product to a retailer. The
retailer then sells the product to a consumer. There is no privity of contract between the
manufacturer and the consumer.
This, however, does not mean that the parties do not have another form of action e.g. Donoghue
v. Stevenson – here a friend of Ms. Donoghue bought her a bottle of ginger beer, which was
defective. Specifically, the ginger beer contained the partially decomposed remains of a snail.
Since the contract was between her friend and the shop owner, Mrs. Donoghue could not sue
under the contract, but it was established that the manufacturer has a duty of care owed to their
consumers and she was awarded damages in tort.
Privity is the legal term for a close, mutual, or successive relationship to the same right of
property or the power to enforce a promise or warranty.
Ans.: Company:
The term ‘company’ implies an association of a number of persons for some common objective
e.g. to carry on a business concern, to promote art, science or culture in the society, to run a
sport club etc. Every association, however, may not be a company in the eyes of law as the legal
import of the word ‘company’ is different from its common parlance meaning. In legal terminology
its use is restricted to imply an association of persons,’ registered as a company' under the law of
the land. The following are some of the definitions of the company given by legal luminaries and
scholars of law.
“Company means a company formed and registered under this Act or an existing company.
Existing company means a company formed and registered under the previous company laws.”
Companies Act, 1956 Sec. 3(i & ii)
A joint stock company is an artificial person invisible, intangible and existing only in the eyes of
law. Being a mere creature of law, it possesses only those properties which the charter of its
creation confers upon it, either expressly or as incidental to its very existence.” – Justice Marshall
From the above definitions it is clear that a company has a corporate and legal personality. It is
an artificial person and exists only in the eyes of law. It has an independent legal entity, a
common seal and perpetual succession.
Sometimes, the term ‘corporation’ (a word derived from the Latin word ‘corpus’ which
means body) is also used for a company.
At present the companies in India are incorporated under the Companies Act, 1956.
1. Artificial Person: A company is an association of persons who have agreed to form the
company and become its members or shareholders with the object of carrying on a lawful
business for profit. It comes into existence when it is registered under the Companies Act. The
law treats it as a legal person as it can conduct lawful business and enter into contracts with other
persons in its own name. It can sell or purchase property. It can sue and be sued in its name. It
cannot be regarded as an imaginary person because it has a legal existence. Thus company is
an artificial person created by law.
3. Perpetual existence: The attribute of separate entity also provides a company a perpetual
existence, until dissolved by law. Its life remains unaffected by the lunacy, insolvency or death of
its members. The members may come and go but the company can go on forever. Law creates it
and the law alone can dissolve it.
4. Separate property: A company, being a legal entity, can buy and own property in its own
name. And, being a separate entity, such property belongs to it alone. Its members are not the
joint owners of the property even though it is purchased out of funds contributed by them.
Consequently, they do not have even insurable interest in the property of the company. The
property of the company is not the property of the shareholders; it is the property of the company.
5. Limited liability: In the case of companies limited by shares the liability of every member of
the company is limited to the amount of shares subscribed by him. If the member has paid full
amount of the face value of the shares subscribed by him, his liability shall be nil and he cannot
be asked to contribute anything more. Similarly, in the case of a company limited by guarantee,
the liability of the members is limited up to the amount guaranteed by a member. The Companies
Act, however, permits the formation of companies with unlimited liability. But such companies are
very rare.
6. Common seal: As a company is devoid of physique, it can’t act in person like a human being.
Hence it cannot sign any documents personally. It has to act through a human agency known as
Directors. Therefore, every company must have a seal with its name engraved on it. The seal of
the company is affixed on the documents, which require the approval of the company. Two
Directors and the Secretary or such other person as the Board may authorize for this purpose,
witness the affixation of the seal. Thus, the common seal is the official signature of the company.
7. Transferability of shares: The shares of a company are freely transferable and can be sold or
purchased through the Stock Exchange. A shareholder can transfer his shares to any person
without the consent of other members. Under the articles of association, even a public limited
company can put certain restrictions on the transfer of shares but it cannot altogether stop it. A
shareholder of a public limited company possessing fully paid up shares is at liberty to transfer his
shares to anyone he likes in accordance with the manner provided for in the articles of
association of the company. However, private limited company is required to put certain
restrictions on transferability of its shares. But any absolute restriction on the right of transfer of
shares is void
8. Capacity to sue and be sued: A company, being a body corporate, can sue and be sued in its
own name.
Ans.: There are many types of businesses, and because of this, businesses are classified in
many ways. One of the most common focuses on the primary profit-generating activities of a
business:
• Agriculture and mining businesses are concerned with the production of raw material,
such as plants or minerals.
• Financial businesses include banks and other companies that generate profit through
investment and management of capital.
• Information businesses generate profits primarily from the resale of intellectual property
and include movie studios, publishers and packaged software companies.
• Manufacturers produce products, from raw materials or component parts, which they then
sell at a profit. Companies that make physical goods, such as cars or pipes, are
considered manufacturers.
• Real estate businesses generate profit from the selling, renting, and development of
properties, homes, and buildings.
• Retailers and Distributors act as middle-men in getting goods produced by manufacturers
to the intended consumer, generating a profit as a result of providing sales or distribution
services. Most consumer-oriented stores and catalogue companies are distributors or
retailers. See also: Franchising
• Service businesses offer intangible goods or services and typically generate a profit by
charging for labor or other services provided to government, other businesses, or
consumers. Organizations ranging from house decorators to consulting firms,
restaurants, and even entertainers are types of service businesses.
• Transportation businesses deliver goods and individuals from location to location,
generating a profit on the transportation costs
• Utilities produce public services, such as heat, electricity, or sewage treatment, and are
usually government chartered.
There are many other divisions and subdivisions of businesses. The authoritative list of business
types for North America is generally considered to be the North American Industry Classification
System, or NAICS. The equivalent European Union list is the Statistical Classification of
Economic Activities in the European Community (NACE).
Management
The efficient and effective operation of a business, and study of this subject, is called
management. The main branches of management are financial management, marketing
management, human resource management, strategic management, production management,
operation management, service management and information technology management.
In recent decades, assets and enterprises that were run by various states have been modeled
after business enterprises. In 2003, the People's Republic of China reformed 80% of its state-
owned enterprises and modeled them on a company-type management system.[2] Many state
institutions and enterprises in China and Russia have been transformed into joint-stock
companies, with part of their shares being listed on public stock markets.
Most legal jurisdictions specify the forms of ownership that a business can take, creating a body
of commercial law for each type.
Many businesses are operated through a separate entity such as a corporation or a partnership
(either formed with or without limited liability). Most legal jurisdictions allow people to organize
such an entity by filing certain charter documents with the relevant Secretary of State or
equivalent and complying with certain other ongoing obligations. The relationships and legal
rights of shareholders, limited partners, or members are governed partly by the charter
documents and partly by the law of the jurisdiction where the entity is organized. Generally
speaking, shareholders in a corporation, limited partners in a limited partnership, and members in
a limited liability company are shielded from personal liability for the debts and obligations of the
entity, which is legally treated as a separate "person." This means that unless there is
misconduct, the owner's own possessions are strongly protected in law, if the business does not
succeed.
Where two or more individuals own a business together but have failed to organize a more
specialized form of vehicle, they will be treated as a general partnership. The terms of a
partnership are partly governed by a partnership agreement if one is created, and partly by the
law of the jurisdiction where the partnership is located. No paperwork or filing is necessary to
create a partnership, and without an agreement, the relationships and legal rights of the partners
will be entirely governed by the law of the jurisdiction where the partnership is located.
A single person who owns and runs a business is commonly known as a sole proprietor, whether
he or she owns it directly or through a formally organized entity.
1. General partners in a partnership (other than a limited liability partnership), plus anyone
who personally owns and operates a business without creating a separate legal entity,
are personally liable for the debts and obligations of the business.
2. Generally, corporations are required to pay tax just like "real" people. In some tax
systems, this can give rise to so-called double taxation, because first the corporation
pays tax on the profit, and then when the corporation distributes its profits to its owners,
individuals have to include dividends in their income when they complete their personal
tax returns, at which point a second layer of income tax is imposed.
3. In most countries, there are laws which treat small corporations differently than large
ones. They may be exempt from certain legal filing requirements or labor laws, have
simplified procedures in specialized areas, and have simplified, advantageous, or slightly
different tax treatment.
4. To "go public" (sometimes called IPO) -- which basically means to allow a part of the
business to be owned by a wider range of investors or the public in general—you must
organize a separate entity, which is usually required to comply with a tighter set of laws
and procedures. Most public entities are corporations that have sold shares, but
increasingly there are also public LLCs that sell units (sometimes also called shares), and
other more exotic entities as well (for example, REITs in the USA, Unit Trusts in the UK).
However, you cannot take a general partnership "public."
Conduct of Arbitral Proceedings: The Arbitral Tribunal should treat the parties equally and
each party should be given full opportunity to present his case [Section 18]. The Arbitral Tribunal
is not bound by Code of Civil Procedure, 1908 or Indian Evidence Act, 1872 [Section 19(1)]. The
parties to arbitration are free to agree on the procedure to be followed by the Arbitral Tribunal. If
the parties do not agree to the procedure, the procedure will be as determined by the arbitral
tribunal.
Law of Limitation Applicable: Limitation Act, 1963 is applicable. For this purpose, date on
which the aggrieved party requests other party to refer the matter to arbitration shall be
considered. If on that date, the claim is barred under Limitation Act, the arbitration cannot
continue [Section 43(2)]. If Court sets Arbitration award aside, time spent in arbitration will be
excluded for purpose of Limitation Act. So that case in court or fresh arbitration can start.
Flexibility in respect of procedure, place and language: Arbitral Tribunal has full powers to
decide the procedure to be followed, unless parties agree on the procedure to be followed
[Section 19(3)]. The Tribunal also has powers to determine the admissibility, relevance,
materiality and weight of any evidence [Section 19(4)]. Place of arbitration will be decided by
mutual agreement. However, if the parties do not agree to the place, the same will be decided by
tribunal [Section 20]. Similarly, language to be used in arbitral proceedings can be mutually
agreed. Otherwise, Arbitral Tribunal can decide [Section 22].
Submission of statement of claim and defense: The claimant should submit statement of
claims, points of issue and relief or remedy sought. The respondent shall state his defense in
respect of these particulars. All relevant documents must be submitted. Such claim or defense
can be amended or supplemented any time [section 23].
Hearings and Written Proceedings: After submission of documents and defense, unless the
parties agree otherwise, the Arbitral Tribunal can decide whether there will be oral hearing or
proceedings can be conducted on the basis of documents and other materials. However, if one of
the parties requests the hearing shall be oral. Sufficient advance notice of hearing should be
given to both the parties [Section 24]. [Thus, unless one party requests, oral hearing is not
compulsory].
Settlement during Arbitration: It is permissible for parties to arrive at mutual settlement even
when arbitration is proceeding. In fact, even the Tribunal can make efforts to encourage mutual
settlement. If parties settle the dispute by mutual agreement, the arbitration shall be terminated.
However, if both parties and the Arbitral Tribunal agree, the settlement can be recorded in the
form of an arbitral award on agreed terms. Such Arbitral Award shall have the same force as any
other Arbitral Award [Section 30].
Arbitral Award: Decision of Arbitral Tribunal is termed as 'Arbitral Award'. Arbitrator can decide
the dispute ex aqua ET bono (In justice and in good faith) if both the parties expressly authorize
him to do so [Section 28(2)]. The decision of Arbitral Tribunal will be by majority. The arbitral
award shall be in writing and signed by the members of the tribunal [Section 29]. The award must
be in writing and signed by the members of Arbitral Tribunal [Section 31(1)]. It must state the
reasons for the award unless the parties have agreed that no reason for the award is to be given
[Section 31(3)]. The award should be dated and place where it is made should be mentioned.
Copy of award should be given to each party. Tribunal can make interim award also [Section
31(6)].
Cost of Arbitration- Cost of arbitration means reasonable cost relating to fees and expenses of
arbitrators and witnesses, legal fees and expenses, administration fees of the institution
supervising the arbitration and other expenses in connection with arbitral proceedings. The
tribunal can decide the cost and share of each party [Section 3 1(8)]. If the parties refuse to pay
the costs, the Arbitral Tribunal may refuse to deliver its award. In such case, any party can
approach Court. The Court will ask for deposit from the parties and on such deposit, the Tribunal
will deliver the award. Then Court will decide the costs of arbitration and shall pay the same to
Arbitrators. Balance, if any, will be refunded to the party [Section 39].
Intervention by Court - One of the major defects of earlier arbitration law was that the party
could access court almost at every stage of arbitration - right from appointment of arbitrator to
implementation of final award. Thus, the defending party could approach court at various stages
and stall the proceedings. Now, approach to court has been drastically curtailed. In some cases,
if the party raises an objection, Arbitral Tribunal itself can give the decision on that objection. After
the decision, the arbitration proceedings are continued and the aggrieved party can approach
Court only after Arbitral Award is made. Appeal to court is now only on restricted grounds. Of
course, Tribunal cannot be given unlimited and uncontrolled powers and supervision of Courts
cannot be totally eliminated.
Arbitration Act has Over-Riding Effect: Section 5 of Act clarifies that notwithstanding anything
contained in any other law for the time being in force, in matters governed by the Act, the judicial
authority can intervene only as provided in this Act and not under any other Act.
Modes of Arbitration
(a) Arbitration without the intervention of the court. [Sec.3 to 19]
(b) Arbitration with the intervention of the court when there is no suit pending [Sec.20]
(c) Arbitration with the intervention of the court where a suit is pending. [Sec.21 to 25]
b. What do you mean by mediation?
Ans.: Meditation is a holistic discipline during which time the practitioner trains his or her mind in
order to realize some benefit.
Meditation is generally an internal, personal practice and most often done without any external
involvement, except perhaps prayer beads to count prayers. Meditation often involves invoking or
cultivating a feeling or internal state, such as compassion, or attending to a specific focal point.
The term can refer to the state itself, as well as to practices or techniques employed to cultivate
the state.
There are hundreds of specific types of meditation. The word, 'meditation,' means many things
dependent upon the context of its use. People practice meditation for many reasons, within the
context of their social environment. Meditation is a component of many religions, and has been
practiced since antiquity, particularly by monastics. A 2007 study by the U.S. government found
that nearly 9.4% of U.S. adults (over 20 million) have used meditation within the past 12 months,
up from 7.6% (more than 15 million people) in 2002.
To date, the exact mechanism at work in meditation remains unclear, while scientific research
continues.
Ans.: Consumer right is defined as 'the right to be informed about the quality, quantity, potency,
purity, standard and price of goods or services, as the case may be, so as to protect the
consumer against unfair trade practices'
Even though strong and clear laws exist in India to protect consumer rights, the actual plight of
Indian consumers could be declared as completely dismal. Very few consumers are aware of
their rights or understand their basic consumer rights. Of the several laws that have been
enacted to protect the rights of consumers in India, the most significant is the Consumer
Protection Act, 1986. Under this law, everyone, including individuals, a Hindu undivided family, a
firm, and a company, can exercise their consumer rights for the goods and services purchased
by them. It is important that, as consumers, we know at least our basic rights and about the
courts and procedures that deal with the infringement of our rights.
* The right to be protected from all types of hazardous goods and services
* The right to be fully informed about the performance and quality of all goods and services
* The right to free choice of goods and services
* The right to be heard in all decision-making processes related to consumer interests
* The right to seek redressal, whenever consumer rights have been infringed
* The right to complete consumer education
The Consumer Protection Act, 1986 and various other laws like the Standards, Weights &
Measures Act have been formulated to ensure fair competition in the market place and free flow
of true information from the providers of goods and services to those who consume them.
However, the success of these laws would depend upon the vigilance of consumers about their
rights, as well as their responsibilities. In fact, the level of consumer protection in a country is
considered as the correct indicator of the extent of progress of the nation.
The production and distribution systems have become larger and more complicated today. The
high level of sophistication achieved by the providers of goods and services in their selling and
marketing practices and various types of promotional activities like advertising resulted in an
increased need for higher consumer awareness and protection. In India, the government has
realized the plight of Indian consumers and the Ministry of Consumer Affairs, Food and Public
Distribution has established the Department of Consumer Affairs as the nodal organization for
the protection of consumer rights, redressal of all consumer grievances and promotion of
standards governing goods and services offered in India.
A complaint for infringement of consumer rights could be made under the following
circumstances in the nearest designated consumer court:
* The goods or services bought by a person or agreed to be bought by a person suffer from one
or more deficiencies or defects in any respect
* A trader or a service provider resorting to restrictive or unfair trade practices
* A trader or a service provider charging a price in excess of the price displayed on the goods or
the price that had been agreed upon between the parties or the price that had been stipulated
under any law in force
* Goods or services that pose a hazard to the safety and life of a person offered for sale,
knowingly or unknowingly, causing injury to health, safety or life.
Consumerdaddy.com is India's only online consumer protection site offering consumer report,
consumer review and different opinions on different products and companies.
The memorandum of association of a company, often simply called the memorandum (and
then often capitalised as an abbreviation for the official name, which is a proper noun and usually
includes other words), is the document that governs the relationship between the company and
the outside. It is one of the documents required to incorporate a company in the United Kingdom,
Ireland and India, and is also used in many of the common law jurisdictions of the
Commonwealth.
Requirements
It is basically a statement that the subscribers wish to form a company under the 2006 Act, have
agreed to become members and, in the case of a company that is to have a share capital, to take
at least one share each. It is no longer required to state the name of the company, the type of
company (such as public limited company or private company limited by shares), the location of
its registered office, the objects of the company, and its authorised share capital.[1]
Companies incorporated prior to 1 October 2009 are not required to amend their memorandum.
Those details which are now required to appear in the Articles, such as the objects clause and
details of the share capital, are deemed to form part of the Articles.
Capacities
The memorandum no longer restricts what a company is permitted to do. Since 1 October 2009, if
a company's constitution contains any restrictions on the objects at all, those restrictions will form
part of the articles of association.
The Companies Act 2006 relaxed the rules even further, removing the need for an objects clause
at all. Companies incorporated on and after 1 October 2009 without an objects clause are
deemed to have unrestricted objects. Existing companies may take advantage of this change by
passing a special resolution to remove their objects clause.
If the company is to be a non-profit making company, the articles will contain a statement saying
that the profits shall not be distributed to the members.
Articles of association:
The following is largely based on British Company Law, references which are made at the end of
this Article.
The Articles can cover a medley of topics, not all of which is required in a country's law. Although
all terms are not discussed, they may cover:
• the issuing of shares (also called stock), different voting rights attached
to different classes of shares
• valuation of intellectual rights, say,the valuations of the IPR of one
partner and,for example,the real estate of the other
• the appointments of directors - which shows whether a shareholder
dominates or shares equality with all contributors
• directors meetings - the quorum and percentage of vote
• management decisions - whether the board manages or a founder
• transferability of shares - assignment rights of the founders or other
members of the company do
• special voting rights of a Chairman,and his/her mode of election
• the dividend policy - a percentage of profits to be declared when there is
profit or otherwise
• winding up - the conditions, notice to members
• confidentiality of know-how and the founders' agreement and penalties
for disclosure
• first right of refusal - purchase rights and counter-bid by a founder.
A Company is essentially run by the shareholders, but for convenience, and day-to-day working,
by the elected Directors. Usually, the shareholders elect a Board of Directors (BOD) at the Annual
General Meeting (AGM), which may be statutory (e.g. India).
The number of Directors depends on the size of the Company and statutory requirements. The
Chairperson is generally a well-known outsider but he /she may be a working Executive of the
company, typically of an American Company. The Directors may, or may not, be employees of
the Company.
3. Write a short note on unfair trade practices and Restrictive trade practice.
Although the law of unfair competition helps protect consumers from injuries caused by deceptive
trade practices, the remedies provided to redress such injuries are available only to business
entities and proprietors. Consumers who are injured by deceptive trade practices must avail
themselves of the remedies provided by state and federal Consumer Protection laws. In general,
businesses and proprietors injured by unfair competition have two remedies: injunctive relief (a
court order restraining a competitor from engaging in a particular fraudulent or deceptive practice)
and money damages (compensation for any losses suffered by an injured business).
General Principles
The freedom to pursue a livelihood, operate a business, and otherwise compete in the
marketplace is essential to any free enterprise system. Competition creates incentives for
businesses to earn customer loyalty by offering quality goods at reasonable prices. At the same
time, competition can also inflict harm. The freedom to compete gives businesses the right to lure
customers away from each other. When one business entices enough customers away from
competitors, those rival businesses may be forced to shut down or move.
The law of unfair competition will not penalize a business merely for being successful in the
marketplace. Nor will the law impose liability simply because a business is aggressively
marketing its product. The law assumes, however, that for every dollar earned by one business, a
competitor will lose a dollar. Accordingly, the law prohibits a business from unfairly profiting at a
competitor's expense. What constitutes unfair competition varies according to the Cause of Action
asserted in each case. These include actions for the infringement of Patents, Trademarks, and
copyrights; actions for the wrongful appropriation of Trade Dress, trade names, trade secrets, and
service marks; and actions for the publication of defamatory, false, and misleading
representations.
Restrictive trade practice:
The restrictive trade practices, or antitrust, provisions in the Trade Practices Act are aimed at
deterring practices by firms which are anti-competitive in that they restrict free competition. This
part of the act is enforced by the Australian Competition and Consumer Commission (ACCC).
The ACCC can litigate in the Federal Court of Australia, and seek pecuniary penalties of up to
$10 million from corporations and $500,000 from individuals. Private actions for compensation
may also be available.
• Exclusive dealing – an attempt to interfere with freedom of buyers to buy from other
suppliers, such as agreeing to supply a product only if a retailer does not stock a
competitor’s product. Most forms of exclusive dealing are only prohibited if they have the
purpose or likely effect of substantially lessening competition in a market.
• Third-line forcing: A type of exclusive dealing, third-line forcing involves the supply of
goods or services on the condition that the acquirer also acquires goods or services from
a third party. Third-line forcing is prohibited per se.
• Resale price maintenance – fixing a price below which resellers cannot sell or advertise
A priority of ACCC enforcement action in recent years has been cartels. The ACCC has in place
an immunity policy, which grants immunity from prosecution to the first party in a cartel to provide
information to the ACCC allowing it to prosecute. This policy recognizes the difficulty in gaining
information/evidence about price-fixing behaviours.
- Applicable to all persons employed in an establishments with or without wages, except the
members of the employer's family.
- State government can exempt, either permanently or for a specified period, any establishments
from all or any provisions of this Act.
Main Provisions
- Compulsory registration of shop/establishment within thirty days of commencement of work.
- Communications of closure of the establishment within 15 days from the closing of the
establishment.
- Lays down guidelines for spread-over, rest interval, opening and closing hours, closed days,
national and religious holidays, overtime work.
- Rules for annual leave, maternity leave, sickness and casual leave, etc.
- Obligations of employers.
- Obligations of employees.
About What:
1. To regulate conditions of work and employment in shops, commercial establishments,
residential hotels, restaurants, eating houses, theatres, other places of public
entertainment and other establishments.
2. Provisions include Regulation of Establishments, Employment of Children, Young
Persons and Women, Leave and Payment of Wages, Health and Safety etc.
Applicability & Coverage:
1. It applies to all local areas specified in Schedule-I
2. Establishment means any establishment to which the Act applies and any other such
establishment to which the State Government may extend the provisions of the Act by
notification
3. Employee means a person wholly or principally employed whether directly or through any
agency, whether for wages or other considerations in connection with any establishment
4. Member of the family of an employer means, the husband, wife, son, daughter, father,
mother, brother or sister and is dependent on such employer
Returns:
1. Form-A or Form-B (as the case may be) {Section 7(2)(a), Rule 5}
Before 15th December of the calendar year, i.e. 15 days before the expiry date
The employer has to submit these forms to the authority notified along with the old
certificate of registration and the renewal fees for minimum one year’s renewal and
maximum of three year’s renewal
2. Form-E (Notice of Change) {Rule 8}
Within 15 days after the expiry of the quarter to which the changes relate in respect of
total number of employees qualifying for higher fees as prescribed in Schedule-II and in
respect of other changes in the original statement furnished within 30 days after the
change has taken place. (Quarter means quarter ending on 31st March, 30th June, 30th
September and 31st December)
Registers:
1. Form-A {Rule 5}
Register showing dates of Lime Washing etc
2. Form-H, Form-J {Rule 20(1)} (if opening & closing hours are ordinarily uniform)
Register of Employment in a Shop or Commercial Establishment
3. Form-I {Rule 20(3)}, Form-K (if opening & closing hours are ordinarily uniform)
Register of Employment in a Residential Hotel, Restaurant, Eating-House, Theatre, or
other places of public amusement or entertainment
4. Form-M {Rule 20(4)}
Register of Leave – This and all the above Registers have to be maintained by the
Employer
5. Visit Book
This shall be a bound book of size 7” x 6” containing at least 100 pages with every
second page consecutively numbered, to be produced to the visiting Inspector on
demand. The columns shall be:
i. Name of the establishment or Employer
ii. Locality
iii. Registration Number
iv. Date and
v. Time
Cyber stalking: The Internet is a wonderful place to work, play and study. The net is merely a
mirror of the real world, and that means it also contains electronic versions of real life problems.
Stalking and harassment are problems that many persons especially women, are familiar within
real life. These problems also occur on the Internet, in the form of “cyber stalking” or “online
harassment”.
2. Cyber crimes against property: The second category of Cyber crimes is Cyber crimes
against all forms of property. These crimes include unauthorized computer trespassing through
cyberspace, computer vandalism, and transmission of harmful programs and unauthorized
possession of computerized information.
3. Cyber crimes against Government: The third category of Cyber crimes is Cyber crimes
against Government. Cyber Terrorism is one distinct kind of crime in this category. The growth of
Internet has shown that individuals and groups to threaten international governments as also to
terrorize the citizens of a country are using the medium of cyberspace. This crime manifests itself
into Cyber Terrorism when an individual “cracks” into a government or military maintained
website, for the purpose of perpetuating terror.
Since Cyber crime is a newly emerging field, a great deal of development has to take
place in terms of putting into place the relevant legal mechanism for controlling and preventing
cyber crime. The courts in United States of America have already begun taking cognizance of
various kinds of fraud and cyber crimes being perpetrated in cyberspace. However, much work
has to be done in this field. Just as the human mind is ingenious enough to devise new ways for
perpetrating crime, similarly, human ingenuity needs to be canalized into developing effective
legal and regulatory mechanisms to control and prevent cyber crimes. A criminal mind can
assume very powerful manifestations if it is used on a network, given the reachability and size of
the network.
Legal recognition granted to Electronic Records and Digital Signatures would certainly
boost E – Commerce in the country. It will help in conclusion of contracts and creation of rights
and obligations through electronic medium. In order to guard against the misuse and fraudulent
activities over the electronic medium, punitive measures are provided in the Act. The Act has
recognized certain offences, which are punishable. They are: -
- Is punishable with imprisonment up to three years, or with fine, which may extend up to two lakh
rupees, or with both.
Publishing of information which is obscene in electronic form (Sec 67): Whoever publishes
or transmits or causes to be published in the electronic form, any material which is lascivious or
appeals to prurient interest or if its effect is such as to tend to deprave and corrupt persons who
are likely, having regard to all relevant circumstances, to read, see or hear the matter contained
or embodied in it shall be punished on first conviction with imprisonment for a term extending up
to 5 years and with fine which may extend to one lakh rupees. In case of second and subsequent
conviction imprisonment may extend to ten years and also with fine which may extend up to two
lakh rupees.
Failure to comply with orders of the controller by a Certifying Authority or any employee of
such authority (Sec 68):
Failure to comply with orders of the Controller by any Certifying Authority or by any employees of
Certifying Authority is a punishable offence. Such persons are liable to imprisonment for a term
not exceeding three years or to a fine not exceeding two lakh rupees or to both.
Fails to assist any agency of the Government to decrypt the information (Sec 69):
If any subscriber or any person-in-charge of the computer fails to assist or to extend any facilities
and technical assistance to any Government agency to decrypt the information on the orders of
the Controller in the interest of the sovereignty and integrity of India etc. is a punishable offence
under the Act. Such persons are liable for imprisonment for a term, which may extend to seven
years.
Ans.: IT Act:
Ans.: Redressal forum: Twenty-five years ago, consumer action in India was virtually unheard
of. It consisted of some action by individuals, usually addressing their own grievances. Even this
was greatly limited by the resources available with these individuals. There was little organized
effort or attempts to take up wider issues that affected classes of consumers or the general
public.
All this changed in the Eighties with the Supreme Court-led concept of public interest litigation. It
gave individuals and the newly formed consumer groups, access to the law and introduced in
their work the broad public interest perspective.
Telepress Features
Several important legislative changes took place during this period. Significant were the
amendments to the Monopolies and Restrictive Trade Practices Act (hereafter "MRTP Act") and
the Essential Commodities Acts, and the introduction of the Environment Protection Act and the
Consumer Protection Act. These changes shifted the focus of law from merely regulating the
private and public sectors to actively protecting consumer interests.
The Consumer Protection Act, 1986 (hereafter "the Act") is a remarkable piece of legislation for
its focus and clear objective, the minimal technical and legalistic procedures, providing access to
redressal systems and the composition of courts with a majority of non-legal background
members.
The Act establishes a hierarchy of courts, with at least one District Forum at the district level
(Chennai has two), a State Commission at the State capitals and the National Commission at
New Delhi. The pecuniary jurisdiction of the District Forum is up to Rs. one lakh and that of the
State Commission is above Rs. one lakh and below Rs. 10 lakhs. All claims involving more than
Rs. 10 lakhs are filed directly before the National Commission. Appeals from the District Forum
are to be filed before the State Commission and from there to the National Commission, within
thirty days of knowledge of the order.
This section explains how to make a complaint using our Complaints Registration Form. It tells
you what information you need to include on the form, and where you need to send your
completed form.
Definition of a complaint
The UK Border Agency defines a complaint as “any expression of dissatisfaction about the
services provided by or for the UK Border Agency and/or about the professional conduct of UK
Border Agency staff, including contractors.”
• Letters relating to the decision to refuse a UK visa. Visa applicants are expected to raise
this using the existing appeal channels.
• Letters-chasing progress on an application unless it is outside our published processing
times.
You should make your complaint using our Complaints Registration Form.
It is important that you give as much information about yourself as possible. The Complaints
Registration Form tells you the type of information we need. This will help us to find the
information relevant to your case and to contact you about it. If possible you should also include:
• Full details about the complaint (including times, dates and locations);
• The names of any UK Border Agency / Visa Application Centre staff you have dealt with;
• Details of any witnesses to the incident (if appropriate);
• Copies of letters or papers that are relevant; and
• Any travel details that relate to your complaint.