LEGAL AID CLINIC

SUBMITTED BY- RITU RAJ

ROLL NO.-55

CLIENT COUNSELLING I
Date of visit: 3/3/2011
Time of Visit: 5:30 p.m.
Name of the Parties: widow of Late Mr. Kishori (Plaintiff) and Government of Bihar

(Defendant)

Detail of the Case: 1. Case No. Jehanabad P.s. Case No. 78/2008

2. Informant Mr. Ramakant Sharma, s/o Late Mr. Ramjatan Sharma,

Village- Parihari, Police Station: Kinjar, Mishra Awas.

Facts:

1. The Incident (carnage) took place on 25/8/2002 at 10:00 o’clock in the night.

2. A group of people were returning home after a spiritual gathering (Bhajan-kirtan).

When the gathering was at the door of the residence of Mr. Ramakant Sharma,
they were attacked by a group of 75-100 terrorist out of which few were in police
uniform.

3. The gathering got scared and ran for their lives. Two sons of Mr. Sharma (Mr.
Ajay and Mr. Mantoo) along with Mr. Kishori went inside the house. They were
followed by the terrorists and ran up to the roof to save their lives.

4. Mr. Ramakant along with his wife was ousted from the house considering their
age.
 5. All the three persons i.e. Mantoo, Ajay and Kishori were killed by the terrorist
group and they came out looting goodies from the house shouting, “PWG
Zindabad” and “Pankaj 1, Pankaj 2”

6. F.I.R. was lodged on 26/8/2002 at 2:00 p.m. by Mr. Ramakant Sharma, s/o Late
Mr. Ramjatan Sharma, Village- Parihari, and Police Station: Kinjar, Mishra
Awas.

7. The government of Bihar after a meeting on 19/12/2003 passed a notification to

the effect granting compensation to the victim’s family who is killed in terrorist
and Maoist attacks.

8. The conditions to be fulfilled to be eligible to get the compensation are as follow

a) the victim should have been killed in terrorist attack or caste or civil war

b) there should be no criminal charges against the person i.e the victim

c) The victim was killed in police firing or other such listed incidents would not
be eligible for the compensation.

9. the benefits provided under the notification were as follows:

a) Compensation of Rs. 50, 000

b) One of the family members would be eligible to get a Grade IV job with the
Government of Bihar

10. Mausmat Ranju Devi, widow of Late Mantoo got a IV grade job under the
scheme of the State Government but the client i.e the widow of Late Kishori was
not given the benefit of the scheme despite being eligible for the same.

11. So, she came seeking advice from the legal aid clinic of Chanakya National Law
University comprising of students of final year.

Question:

Q. Questions asked in relation to the name and basic detail of the client?
Q. When did the incident take place and details of the incident?

Q. when was the F.I.R. lodged and who was the informant?

Q. what is the relief sought?

Q. Whether she has approached authorities for the purpose of seeking relief?

Q. What are her grounds for eligibility for seeking the benefits of the notification?

Issues:

1. Whether the client’s case falls within the ambit of the impugned
notification of State of Bihar?

2. Whether the client’s natural right of reasonable opportunity to be heard

has been violated by State of Bihar by passing ex-parte order against
the client?

Opinion:
The opinion given in the present matter has been given based solely on the facts narrated
by the client and the documents produced by him. The opinion is the outcome of the
single meeting with the client and thus the counsel holds no professional liability.

Considering the above-mentioned details and facts the counsel suggests and advices the
client to file a writ petition of “mandamus” (under article 226) before the Hon’ble High
Court of Patna.

CLIENT COUNSELLING II
Name of the person visiting- Mr. Bipin kumar
Date of visit -14-3-2011
Time of visit -4:00p.m.
Name of the parties- Mr. Bipin Kumar ,S/o Sri Mundrika Thakur, R/o Diyaa Chak,
Budha
Colony, P.S. Budha Colony, D.S. -Patna.
 Vs.
Adico flexione workforce solution Pvt. Ltd.,Patna
Client Details:-
Name- Mr. Bipin Kumar ,S/o Sri Mundrika Thakur, R/o Diyaa Chak, Budha
Colony, P.S. Budha Colony, D.S. -Patna
Status- Employee in Adico Flexione work force solution Pvt. Ltd.
Head office of the company is situated in Bangalore, but he is working in branch
office of
Company, i.e., in Patna.
Facts:-
One Mr. Bipin Kumar has visited the clinic on 14-3- 2011.
He has disclosed his problem
He was working as executive officer in the company since 2005 and looking after the
affairs of the company in Bihar and Jharkhand.
Upon query he disclosed that the said company namely Adico Flexione Private Limited is
a registered company of Karnataka who used to supply the manpower to the different
companies of Bihar and Jharkhand. This company works as a labor contractor.
The Prime work of Vipin is to supervise the work of the employees working in the
different organisation one day. Mr. Bipin was called at Kolkata office. The audit team
has alleged that dere is defalcation of money but no opportunity or any explaination ever
been demanded from him. He has been asked to resume his office at Patna and when he
return Patna. The official has not permitted him to enter the office. When Mr. Vipin has
demanded any letter of the company about stoppage of the Company then after 3 and 4
hours on the same day without serving any show cause, opportunity of hearing , mation
letter was handed over to him.

When he returned at Patna i.e., on 8th March,2011 , the official has not permitted him to
enter the office. When Mr. Bipin has demanded any letter of the company about stoppage
of the Company then after 3 and 4 hours on the same day without serving any show
cause, opportunity of hearing , a termination letter was handed over to him..
He has disclosed his problem
Against his said termination Bipin has come to our clinic.

Against his said termination Mr. Bipin has come to legal aid clinic. We have put the
following questions:-
1) What is the name and address of client?

2) When he joined the company and for which type of work, he was recruited?

3) What is his salary?

4) When he called for audit purpose and which type of inquiries have been made?

5) When the cause of action arose?

6) What was the amount for which he was alleged for defalcation?

7) Which type of remedies he wants?

8) Under which procedure he wants to get relief, i.e. Arbitration/civil court/labor

court?

Issues:-
Whether the impugned agreement entered between my client and the defendant company
is in consonance to “Industrial Dispute Act 1947” or, for that matter, any other labour
legislation?

Opinion:-
The opinion given in the present matter has been given based solely on the facts narrated
by the client and the documents produced by him. The opinion is the outcome of the
single meeting with the client and thus the counsel holds no professional liability.

The relief sought by the client is reinstatement of the service with back wages and
compensation for mental agony as well.

The advice which is rendered to the client is that the proper and the best forum for his
dispute would be a “labour court” and the applicable laws would be “Industrial Disputes
Act, 1947” because the defendant company is an industry within the definition of
industry as provided under Sec. 2(j) of the Act and the dispute is an industrial dispute
within the definition as provided under Sec.2(k) of the Act.

Bihar Shops and Establishemnts Act 2007 is also applicable because the client is an
employee as per Sec. 2(4) and the defendant company is an employer as per Sec. 2(5) of
the Act.

Both the Acts are applicable because they are complementary to each other.

CLIENT COUNSELLING III

Name of the person visiting: Subhash Pandey, Advocate

Date of visit: 17/3/2011

Time of Visit: 6:00 p.m.

Name of the Parties: 1. Union Bank of India, (Munger), represented through Bank
Manager ………………………………………….( Applicant)
v.
1. Goswami Bricks (One who took the loan)
2. Neeraj Kumar Goswami (Partner/Owner)
3. Pankaj Kumar Goswami (Mortgagor)
4. Shailja Devi (Mother of the Goswami brothers)
(Guarantor/Mortgagor)
5. Ashok Kumar Yadav ( Guarantor)……………….(Defendant)
Detail of the Client: Mr. Ashok Kumar Yadav, Police Station In charge, Munger,
relative of the Goswami brothers.
Detail of the Case: 1. Case No. OA No. 44/2010
Facts:
1. Mr. Neeraj Goswami took a loan of R.s 9 lakh from Union Bank of
India, Munger to start a Chimney Bhatta ( where brick is prepared).
 2. The Loan was taken twice, 1st of Rs. 5 lakh for which Mother Mrs.
Shailja stood the guarantor was taken on 18/2/2003 and for the second
one of Rs. 4 lakh , client Mr. Ashok stood the guarantor) which was a
term loan and had to be paid back in 60 installments.
3. The loan for which Mr. Ashok Kumar Yadav was made the guarantor
was taken on 21/12/2004.
4. When the loanee did not pay the installments on time, a notice was
send to him on 6/01/2010
5. On 27/06/2010 1st unit of the firm owned by Goswami brothers was
found closed and the notice regarding the same was sent to them by
the bank.
6. Bank filed a certificate case before the District Magistrate against the
Goswami Brothers for not paying the Installments but they did not
appear for the Hearing and hence an ex parte order to move to Debt
Recovery Tribunal was passed.
7. Goswami Brothers did not appear for the hearing of Tribunal as well
which was scheduled on 11/03/2011. Then on 23/03/2011 the Tribunal
imposed a fine on them for non-appearance. There was even a
notification summoning their presence in tribunal published in Dainik
Jagran (newspaper) on 28/10/2010.
8. Then, Bank sent a notice to Ashok Kumar Yadav to pay the term loan
as guarantor , as Goswami brothers has declared absconder by the
court.
Querries:-
1) What is the name and address of client?

2) From which bank Mr. Goswami took a loan and for what purpose ?

3) What type of loan it is and in how many installment loan has to be paid?

4) For what amount of money he stood as a guarantor?

Issues:-
1) Whether the Bank shall impose the first charge on guarantor, even if the loanee
has sufficient means to pay the bank loan?

Opinion:-
The opinion given in the present matter has been given based solely on the facts narrated
by the client and the documents produced by him. The opinion is the outcome of the
single meeting with the client and thus the counsel holds no professional liability.
According to S.128 of contract Act, the liability of surety is co-extensive with that of
principal debtor, unless it is expressly provided by the contract. The expression ‘co-
extensive with that of principal debtor’ shows the maximum extent of surety’s liability
He is liable for the whole amount of which principal debtor is liable and he is liable for
no more.
In N. Narsimhaihah vs. Karnataka State Financial Corpn. (AIR 2004 Kant 46), it was
held that a suit against surety without even impleading the principal debtor held to be
maintainable.
In Bank of Bihar vs. Damodar Prasad (AIR 1969 SC 297), the court stated that “Solvency
of the principal is not a sufficient ground for restraining execution of the decree against
the surety. It is the duty of the surety to pay the decretal amount. On such payment he
will be subrogated to the rights of the creditors.
In Union Bank of India vs. Manku Narayana ( AIR 1987 SC 1078), the Supreme court
held that creditor must proceed against the mortgaged property and then only against the
surety for the balance.
Therefore, in my opinion, court can impose the first charge on the guarantor. But before
that Bank should first proceed against the mortgaged property of Goswami brothers, then
only it can proceed against the Ashok Kumar Yadav for the balance amount.