This article is written by Tejesh Reddy, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy, from Lawsikho, as part of his coursework. He is a BA LLB student at ICFAI Law School, Hyderabad of Batch 2021.

Let me start this Article with a story.

This is the story of great grandfather’s cousin. A long time ago, my great uncle lived in a village in Tamil Nadu. His wife was known to be a harsh and shrewd woman but they were happily married. One day, his wife found out that he had cheated on her with one of the neighbors. So, one night, his wife took some goons to that woman’s house and killed her. After killing her, they wrecked the house and tried to make it look like a robbery.

The police while investing found out that my great uncle’s wife was near that house during the time of the murder. When the police came to their house, realizing that his wife had murdered that woman, he confessed to the crime. And he was, subsequently, convicted for murder.

Is this confession admissible?

What are the laws relating to confessions and self-incriminating acts? What is the protection against self-incrimination acts? Who can record a confession? Are there any provisions related to false confessions? What has the Court decided on such cases?

This article aims to answer these questions.

What is self-incrimination?

According to Black’s Law Dictionary, a declaration or an act that occurs during an investigation where a person or witness incriminates themselves either explicitly or implicitly is known as self-incrimination.

It can also be defined as the act of implicating oneself in a crime or exposing oneself to criminal prosecution, according to the Legal Information Institute, Cornell Law.

Article 20(3) of the Constitution of India deals with self-incrimination.

“No person accused of any offense shall be compelled to be a witness against himself.”

What does being a witness against himself mean? It means that the person accused will give evidence to the Court proving his own guilt in a crime. This Article protects citizens of India from being forced to give evidence against themselves.

Need for law relating to self-incrimination?

The origin of this principle against self-incrimination can be found in the latin maxims “nemo teneturprodereseipsum” which means that no man is bound to betray himself.

In the 16th and 17th century, the English courts of the Star Chamber and the High Commission began to compel suspects to take an oath and to answer questions. These were called “ex-officio oaths”. Dissenters to this practice along with lawyers such as Sir Edward Coke were effectively able to make the Latin maxim of “nemo teneturprodereseipsum” into rule of law which became the privilege against self-incrimination.

English judges began unleashing writs of Habeas Corpus and Prohibition against the High Commission which ended up becoming the first articulation of this principle.

Later on, Article 11.1 of the Universal Declaration of Human Rights, 1948 and Article 14(3)(g) of the International Convention on Civil and Political Rights, 1966 laid down the principles of assumption of innocence and against self-incrimination respectively.

Legislations that have provisions for self-incriminating acts

As stated earlier, Article 20(3) of the Constitution of India gives protection to its citizen against self-incrimination. But are there any other legislation that deals with the same?

Evidence Act

Sections 24-30 of the Evidence Act, 1872 deal with confessions given by a person.

Section 24 of the Evidence Act, 1872 states that

“24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.–– A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.”

A confession, under this section, will be inadmissible as evidence if it is –

1. Made under inducement, threat or promise
2. In reference to an offense or charge
3. Made by the accused and
4. Made the accused think that doing so would give him an advantage or help him avoid evil

Section 25 of the Evidence Act, 1872 states that

“25. Confession to police officer not to be proved. –– No confession made to a police officer shall be proved as against a person accused of any offense.”

Section 26 of the Evidence Act, 1872 states that

“26. Confession by accused while in custody of police not to be proved against him. –– No confession made by any person whilst he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate, shall be proved as against such person.”

Section 27 of the Evidence Act, 1872 states that

“27. How much of information received from accused may be proved. –– Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offense, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

According to this section, any fact may be proved if it was in consequence of information received from the accused. But only if it relates distinctly to the fact discovered

Section 28 of the Evidence Act, 1872 states that

“28. Confession made after removal of impression caused by inducement, threat or promise, relevant. –– If such a confession as is referred to in section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the Court, been fully removed, it is relevant.”.

If the confession under section 24 had been made after the removal of such inducement, threat, or promise, then it is admissible as evidence.

Section 29 of the Evidence Act, 1872 states that

“29. Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc.–– If such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practiced on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him.”

According to this section, if the confession made by the accused was under a promise of secrecy or the accused was tricked into confessing, the confession shall be admissible.

Section 30 of the Evidence Act, 1872 states that

“30. Consideration of proved confession affecting person making it and others jointly under trial for the same offence.  When more persons than one are being tried jointly for the same offense, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.”

When a person confesses to an offense committed by himself and others and that confession is proved, then the Court will consider that confession as evidence against the others accused as well.

Anti-Terrorism Laws

Section 32 of the Prevention of Terrorism Act, 2002 (POTA) states that

“32. Certain confessions made to police officers to be taken into consideration.—

(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer…, shall be admissible in the trial of such person for an offence under this Act or the rules made thereunder.”

Section 15 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 (TADA) states that

“15. Certain confessions made to police officers to be taken into consideration.- (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police… shall be admissible in the trial of such person [or co-accused, abettor or conspirator] for an offence under this Act or rules made thereunder:

[Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused].”

These two counter-terrorism legislations have provisions for confessions taken by Police Officers which will be admissible in Court contrary to the provisions of the Evidence Act.

However, both of these Acts have been repealed and the current counterterrorism Act that is in force is the Unlawful Activities (Prevention) Act, 1967 with its latest amendment in 2012.

Even though many of the provision of POTA were inserted into the Unlawful Activities (Prevention) Act in 2004, the Act does not have any provisions on confessions.

Applicability

Who can commit self-incriminating acts?

According to Article 20(3) of the Constitution and Section 24 of the Evidence Act, it is clear that only the person accused of an offense can commit a self-incriminating act in relation to that offense and hence, needs protection against it.

A confession is a self-incriminating act. But the protection provided by law is only against compulsion to do a self-incriminating act or make a self-incriminating statement.

Who can record self-incriminating acts?

A confession has to be recorded in the manner given under section 164 and 281 of the Code of Criminal Procedure,1973

“164. Recording of confessions and statements.—(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial”

“281. Record of examination of accused.—(1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the Court and such memorandum shall be signed by the Magistrate and shall form part of the record.”

So, only a Magistrate can record a confession in the course of an investigation. And when the Magistrate is examining the person accused, he shall make a memorandum about the examination. This shall, then, be shown or read to the accused. And will be signed by the person accused and the Magistrate.

False Confessions

The concept of False Confessions is not new. The law acknowledges its existence in the fact that a confession is not considered enough to prove guilt and must be corroborated with other evidence.

But why would someone confess to a crime that they did not commit?

There are many reasons that explain why a person would confess to a crime they did not commit, such as:

1. Real or perceived intimidation by the police
2. Use of force by police during the interrogation, or perceived threat of force
3. Compromised reasoning ability due to exhaustion, stress, hunger, substance use, and, in some cases, mental limitations, or limited education.
4. Evil interrogation techniques, such as false evidence about the existence of evidence
5. Fear, that failure to confess will yield a harsher punishment

There are different types of false confession:

1. Voluntary False Confession – When the innocent accused knowingly confesses to the crime with little to no pressure from the police.
2. Complaint False Confession – When the innocent accused knowingly confesses to the crime to put an end to the interrogation or get an anticipated benefit or reward.
3. Persuaded False Confession – When the innocent accused knowingly confesses to the crime who states to doubt his own memory and believes that they committed the crime.

In India, the question of false confession is not adequately debate and there is no proper literature on the subject. This is an important concept because all over the world convicts are being exonerated based on DNA evidence. The Innocence Project states that “Astonishingly, more than 1 out of 4 people wronfully convicted but later exonerated by DNA evidence made a false confession or incriminating statement.”

But there do exist judgments on the subject matter. In Mahesh Ram and Ors v. State of Bihar (2007), a single judge bench of the Patna High Court allowed the writ filed by brothers who were convicted for the murder of woman. The Court observed that the confession recorded by the police was false and concocted and that the accused never even confessed.

Judgements

Let us take a look at the judgments regarding Article 20(3) and confessions in the various High Courts and the Supreme Court.

In M.P. Sharma v. Satish Chandra (1954), an 8 judge bench of the Supreme Court had to deal with the issue of whether search and seizure under section 94 of the CrPC is violative of Article 20(3) of the Constitution. The Court observed that the production of a document under section 139 of the Evidence Act is not being a witness under the meaning of Article 20(3). And that the production of the document would not amount to compelled production.

In State of Bombay v. Kathi Kalu Oghad (1961), an 11 judge bench of the Supreme Court decided on whether giving of signature and fingerprint specimen would to self-incrimination. Both the majority and minority views agreed that a specimen of a fingerprint or a signature cannot be considered as “to be a witness” under Article 20(3). But they came to this conclusion through different reasonings.

In Nandini Sathpathy v. PL Dani (1978), Justice Krishna Iyer held that “compelled testimony” should include psychic torture, environmental coercion, intimidation methods etc. The right against self-incrimination would begin from the time the person is named in the FIR.

In Kartar Singh v. State of Punjab (1994), the Supreme Court considered the validity of section 15 of the TADA Act. The Court held that the section is valid but proposed certain guidelines ensure recording of true and voluntary confessions.

In Selvi v. State of Karnataka (2010), a 3 judge of the Supreme Court dealt with the admissibility of evidence gathered from Narco-Analysis in light Article 20(3). The Court held that a statement of confession must be reliable and voluntary. Narco-Analytic tests such as brain mapping polygraph tests and FMRI were administered forcefully on the accused persons. This compulsory administration of these tests is violative of “right against self-incrimination” under Article 20(3).

Conclusion

The right against self-incrimination is an essential fundamental right that cannot be taken away. Article 20(3) of the Constitution articulates this right. Most nations of the world follow this principle.

Only an accused is given protection under Article 20(3). According to section 164 and 281 of the CrPC, only a Magistrate can record a valid admissible confession. According to section 26 of the Evidence Act, a confession taken by a police officer is inadmissible. But TADA and POTA had provisions where a confession recorded by a police officer would be admissible which have now been repealed and replaced with UAPA.

Through various judgments, the Supreme Court has upheld the right against self-incrimination. In Nandini Sathpathy’s case, it was held that the right begins from the time a person is named in the FIR. In Selvi’s case, it was held compelled narco-analysis test are violative of the right against self-incrimination.

But the literature and precedence on false confessions are still extremely limited in India. We need to create adequate measures to answer the questions raised at the beginning of this article. Whether my great uncle’s confession would be admissible today? Would he still be convicted today? How much has the law advanced over the last century?

How much does the law need to advance to answer these questions?

The post Laws Related to Self-Incriminating Acts and Statements appeared first on iPleaders.

This article is written by Karan Bhutani, here he discusses Real Estate Investment Trust.

India’s Real Estate Investment Trust (REIT) has finally become a reality. The first REIT filed by Embassy Office Parks, a Bengaluru-based real estate developer backed by Blackstone Group LP, a private equity firm was opened for investment from 18-20 May 2019. The IPO was subscribed 2.58 times, with institutional investors subscribing 2.15 times of the portion. Retail investors and HNIs had subscribed 3.1 times.

What is REIT?

A REIT is an investment vehicle that allows investors to invest in real estate and hold properties, and then lease it out to earn rental income. In India, REIT is only allowed for investing and holding commercial properties. In simple terms, REIT works like a mutual fund by pooling investments from domestic and international investors and then investing in income generating properties, mostly commercial assets. The minimum subscription has been reduced to 50,000 from 2 lakhs, helping small investors to participate. The Embassy REIT’s portfolio comprised of 33 million sq ft of office space across seven parks and four prime city-center office buildings. The portfolio has a 95% occupancy rate and more than 160 blue-chip tenants. The office properties that are part of the portfolio include Express Towers in Nariman Point and First International Finance Centre in Mumbai.

It was one of the most awaited events in the real estate industry and the over-subscription is encouraging sign at large, especially for the commercial segment. It will not propel investments in the commercial real estate sector but will pave the way for future investments in the sector, thus giving developers the much-needed liquidity. There is no better time to launch REIT and pumping monies from domestic and international investors in the beleaguered real estate sector.

Also Read: All you need to know about India’s first Real Estate Investment Trust

Minimum Investment required to invest in REIT

As per SEBI rules, the minimum threshold to invest in REIT is INR 2lakhs. However, the issuer should indicate a minimum lot size for investment in the offer document.

Trading on exchange

Once the REIT offer is closed, the investor can sell the units on the exchange. The minimum lot size for exchange is INR 1 lakh.

How REITS are taxed?

The income earned from REIT is subject to tax depending upon the nature and proportion of receipts. The income received in the form of dividends/interest and will be subject to short-term and long-term capital gains depending upon the holding period of the investment.

Commercial office space absorption in India in 2019

As per the industry estimates, the overall absorption has reached 49 million sq ft in 2019. The successful launch of REIT is a reflection of success in the realty sector. There has been immense interest from the NRIs too for large commercial spaces, and have started investing in commercial real estate assets.

Return from REIT/Expected returns

The projected 5-year return from commercial assets is 10-12% percent due to huge investments in Grade A commercial assets. The commercial real estate withstood the declining sales of the residential segment. Apart from the higher yield, there are chances of capital appreciation too.

Should you invest in REIT?

Real estate has always attracted investors, but due to high-ticket size, many investors have stayed away from the sector. Investing in commercial buildings such as Grade A office building is out of the question. REIT can provide an option for retail investors who can invest a portion of their wealth as the minimum investment is low. Commercial real estate has always been a very high capital-intensive affair. REITs can be a viable option for investors to park their wealth in the commercial portfolio after analyzing the profit or risk in the asset class. As Embassy Office Parks has launched first REITs in India, there is no history related to profit or risk associated with it.

There are several stark realities associated with REIT, and many of them are beyond the control of fund managers. The profitability will depend upon the chosen sub-markets, which might face adverse conditions. Tenant leases also face problems such as non-renewals and even premature termination. This can hamper REIT’s income generating ability. Therefore, an investor should weigh the following parameters before investing in REIT:

•    Does the REIT portfolio has a strong profile of tenants?

•    What is the committed occupancy does it enjoy?

•    What is the average lease period?

• Does it offers long-term lease contracts, thus providing earnings stability with minimal chances of default?
• Geographically diversified quality commercial space

These factors will analyze the success of REIT in the years to come. There is no guarantee of returns or profits for the investors. It is only a tool to leverage growth in the realty sector. It more like a fund operated by the asset management company. And one can invest to generate income from such assets. Any gain realized from such investments, of held for more than 36 months will attract capital gain tax at 10 percent, if STT has been paid on the transaction. For the units held less than 36 months, the capital gain tax will be at 15 percent.

One needs to invest for a long-term horizon as similar to other asset classes to generate a decent return. The expectations from the market will be low-to-mid returns. REITs will be less volatile as regulations maintain the more than 80% of the asset should be rent-generating assets. Typically, commercial leases are of long tenure i.e. six or nine years, with a rent escalation clause.  Also, one needs to demat account to invest in REITs. The retail investors need to wait till the time mutual fund managers offer this as a part of their portfolio, which is at least a few years away.

REITs will play an important role in the formalization of the real estate sector. It will offer the beleaguered developers to promote their commercial portfolio via REIT. On the other hand, SEBI must launch an aggressive campaign to promote REIT among retail investors similar to mutual funds. Advisors have to equip themselves with knowledge about the commercial asset class. The listing will be closely watched by all the investors and property market participants.

Shoprwise suggests that retail investors should wait and watch before taking the leap of faith. REITs are a relatively new offering for Indian investors and further iterations by the regulatory can be made in the future. Typically, REITs tenure is 9-15 years, with built-in rent escalations after 3 years. A well-diversified mix of commercial assets is usually beyond the scope of HNIs. REITs give the opportunity to such investors to but premium REIT with quality tenants, high occupancy, and minimal chances of default. For wealth managers, it is a handy hedge tool for wealth diversification.

The post Realty Check: Will Embassy REIT bring more Investment in Commercial Real Estate? appeared first on iPleaders.

This article is written by Deepika Kataria, here she discusses the Hindu Adoption and Maintenance Act.

Introduction

Section 12 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter “Act, 1956”) states that an adopted child from the date of his adoption will be deemed to be the child of his adoptive parents and all his ties with his natural family will be severed. Clause (b) of the proviso in this section has come under judicial interpretation which has led to conflicting decisions by various High Courts.

The Clause states-

“any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth”

The High Court of Bombay and Patna held that with adoption, the adoptee cannot have any vested interest in the Hindu Undivided Family of his natural birth.[1] Some of the judgments taking a contrary view are Yarlagadda Nayudamma v. Govt. Of A.P,  Jadabendra Narayan Choudary v. Shintanshu Kumar Choudary, and Purushottam Dass Bangur, In re.[2] The reasoning of the decisions conflicted with respect to whether an adoptee gets a vested interest in the coparcenary property before the partition of the Hindu undivided family of his natural birth.

Meaning of the term ‘vested interest’

The Supreme Court in P.K Mohan v. B.N Anathachary after considering Section 19 and Section 21 of the Transfer of Property Act, 1882 held that interest can be said to be a vested interest when there is the immediate right of present enjoyment or a present right of future enjoyment. It is on the happening of an event, a contingent interest becomes a vested interest.[3] It is vested when the owner’s title is already perfect and so he owns it absolutely.[4]Therefore, when interest is vested the transferee’s title is already perfect.[5]

Coparcenary consists of fluctuating and not a specific interest

A coparcenary in the Hindu undivided family governed by the Mitakshara law, no individual member of the family while it remains undivided can predicate that he has a definite share in the property of the family. The rights of the coparceners are defined when there is a partition meaning thereby there interest is subject to fluctuation with the deaths and births of other coparceners in the family before partition takes place.[6]Furthermore, in the case of coparcenary property there cannot arise a question of full ownership.[7]

Effect of adoption

Under the classical Hindu law, the adopted son acquires the rights of a son of the adoptive family; he loses all the rights of a son in his natural family, including the right of claiming any share in the estate of his natural father or natural relations, or any share in the coparcenary property of his natural family[8]. Furthermore, the Supreme Court in Basavarajappa v. Gurubasamma and others held that after considering the scheme of Sections 11, 12 and 14 of the Act, 1956 that on adoption the adopted child would become a coparcener in the adopted family after severing all his ties with the family from which he has been adopted.[9]

Therefore, the decisions taken by the Bombay and the Patna High court are based on sound reasoning and proper interpretation of the Act, 1956 wherein the adoptee cannot have any vested interest in the Hindu Undivided Family of his natural birth.[10] The reason being the coparceners have birth interest in the property and not vested and after adoption, he severs all his ties with his natural family because of the principle of fluctuating interest. The interest of the coparcener is contingent on the number of births and deaths in the family before partition. The said interest will be vested to him only after partition.

The contrary judgments interpreted the section in such a manner that it restricted its scope by relying on the texts of Mitakshara law and considered it to be emphatic with regard to the vesting of the property to coparcener.[11] This is clearly contrary to Section 4 of the Act, 1956 wherein it is clearly stated that the Act will have an overriding effect on the Hindu texts, custom or usage. Furthermore, the interpretation of the clause (b) of the proviso by the courts made the main section redundant as the adoptee can have the share of coparcenary of two Hindu undivided families which clearly cannot be the objective of the legislature by drafting Section 12 in the Act, 1956. This kind of interpretation is contrary to the catena of judgments of the Supreme Court wherein it was held that the proper function of the proviso is to except or qualify something enacted in the substantive clause, which but for the proviso would be within that clause.[12]Additionally, in the case of The Administrator, Municipal Committee v. Ramji Lal Bagra, it was held that a provision must be read in the context of the statute.[13] Here, the context of the statute is to allow the adopted son to own the property in which he has vested interest and not birth interest.

The Act, 1956 was enacted to bring clarity and certainty with regard to vesting and diverting of any property of adoptive child so as to reduce voluminous litigation. But unfortunately, the position with respect to Clause (b) of the proviso of Section 12 of the Act, 1956 still remains unclear.

[1] Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, AIR 1992 Bom 189; Santosh Kumar Jalan v. Chandra Kishore Jalan, AIR Pat 125.

[2] Yarlagadda Nayudamma v. Govt. Of A.P, AIR 1981 AP 19; Jadabendra Narayan Choudary v. Shintanshu Kumar Choudary, 2013 (2) CHCN 325; Purushottam Dass Bangur, In re, AIR 2016 Cal 227.

[3]  P.K Mohan v. B.N Anathachary, (2010) 4 SCC 161.

[4] Textbook on Jurisprudence, Dr. Veena Madhav Tonapi, Universal Law Publishing Co.

[5] Dr. S.N. Shukla, The Transfer of Property Act, 28^th Edn., 2014, p.43.

[6] Girijanandini Devi v. Bijendra Narain Choudary, AIR 1967 SC 1124.

[7] Mulla, Hindu Law, 22nd Ed. Vol. 1, at p. 1353.

[8] Manu (IX, Verse 142).

[9] Basavarajappa v. Gurubasamma, (2005) 12 SCC 290.

[10] See Footnote No. 1.

[11] See Footnote No. 2.

[12] Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai, (1966) 1 SCR 367.

[13] The Administrator, Municipal Committee v. Ramji Lal Bagra, AIR1995 SC 2329.

[14] Kesharpal v. the State of Maharashtra, AIR 1981 Bom 115.

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This article is written by Ashish Vishwakarma pursuing a diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho, as a part of his coursework. He is a BA LLB(Hons.) 5th Year Student, School of Law,  Lovely Professional University, Punjab.

Introduction

Stock investing is an important part of the growth of a business as well as a company. It is such an important thing for the investors that it requires cautious examination of monetary information so as to discover the company’s actual worth. This is commonly done by inspecting the company’s benefit and profit and loss account, monetary record and cash flow statement. This can be tedious and bulky. An easier approach to get some answers concerning an organization’s execution is to take a look at its financial ratios.

In spite of the fact that this is certainly not a full proof method, it is a decent method to run a quick check on a company’s wellbeing.

Financial Ratio analysis is critical for venture decisions. It, not just aides in knowing how the organization has been performing but also makes it simple for financial specialists to analyze organizations in a similar industry and focus in on the best venture alternative.

Here are some of the financial ratios that help during the decision making while making the investment in the stock market.

Price to Earnings Ratio or the P/E Ratio

The price-to-earnings, or P/E, the ratio indicates how much stock investors are paying for every rupee of profit. It shows if the market is exaggerating or underestimating the company.

The price/earnings ratio (P/E) is the best known of the investment valuation pointers. The P/E ratio — though it has its flaws — is the most generally revealed and utilized valuation by venture experts and the contributing open. A high P/E proportion implies financial specialists are paying more for the present profit fully expecting future income development

Required:  Income Statement, Most Recent Stock Price

The formula: P/E Ratio = Price per Share / Earnings Per Share

One can know the perfect P/E ratio by looking at the present P/E with the organization’s historical P/E, the average industry P/E and the market P/E. For example, an organization with a P/E of 15 may appear to be costly when contrasted with its historical P/E, however, might be a decent purchase if the business P/E is 18 and the market P/E is 20.

A high P/E ratio may demonstrate that the stock is overrated. A stock with a low P/E may have a more prominent potential for rising. P/E ratios should be used in combination with other financial ratios for informed decision-making.

P/E ratio is normally used to value a mature and stable company that gain benefits. A high PE shows that the stock is either exaggerated (as for history or potentially peers) or the company’s income is expected to grow at a fast rate. In any case, one must remember that a company can help their P/E ratio by including debt. Likewise, as future earnings estimates are subjective, it’s better to use past earnings for calculating P/E ratios.

Price to book Ratio

The price-to-book value (P/BV) ratio is utilized to compare a company’s market cost with its book value. Book value, in straightforward terms, is the sum that will remain if the company liquidated its assets and reimburses every one of its liabilities.

The price-to-book ratio (P/B) compares a stock’s per-share price (market value) to its book value (shareholders’ equity). The price-to-book value ratio, expressed as a multiple ((i.e. how often a company’s stock is exchanging per share contrasted with the company’s book value per share), is an indication of how much investors are paying for the net resources of a company.

“Price-to-book”, provides investors an approach to compare the market value — or what they are paying for each offer — to a preservationist proportion of the estimation of the firm.

Required:     Balance Sheet, Most Recent Stock Price

The formula:   P/B Ratio = Price per Share / Book Value per Share 

P/BV ratio values shares of companies with extensive substantial resources on their monetary records. AP/BV ratio of less than one demonstrates the stock is underestimated (estimation of assets on the company’s books is more than the value the market is assigning out to the company). It demonstrates a company’s inherent value and is helpful in valuing companies whose assets are for the mostly liquid, for example, banks and financial institutions.

Ratio examination is significant for speculation choices. It, not just aides in knowing how the company has been performing yet, in addition, makes it simple for speculators to think about organizations in a similar industry and focus in on the best venture alternative.

Debt to Equity Ratio

The debt-equity ratio is a leverage ratio that looks at a company’s aggregate liabilities to its aggregate investors’ value. This is an estimation of how much suppliers, money lenders, banks and creditors have focused on the company versus what the investors have submitted. A lower number implies that a company is utilizing less leverage and has a stronger value position.

This ratio is certainly not an unadulterated estimation of a company’s obligation since it incorporates operational liabilities in the count of aggregate liabilities. Nevertheless, this simple to-compute ratio gives a general sign of a company’s value risk relationship.

What you need: Balance Sheet

The formula:  Debt-to-Equity Ratio = Total Liabilities / Total Shareholder Equity

It indicates how much a company is utilized, that is, how much obligation is associated with the business vis promoters’ capital (value). A low figure is typically viewed as better. Yet, it must not be found in segregation.

If the company’s profits are higher than its interest cost, the obligation will improve value. In any case, in the event that it isn’t, investors will lose.

“Also, a company with low debt-to-equity ratio can be accepted to have a ton of extension for development because of more raising support choices.

Yet, it isn’t that straightforward. “It is industry-explicit with capital concentrated enterprises, for example, automobiles and manufacturing showing higher figure than others. A high obligation to-value ratio may demonstrate irregular use and, thus, higher danger of credit default, however, it could likewise flag to the market that the company has put resources into some high-NPV ventures.

A high P/E ratio may demonstrate that the stock is overrated. A stock with a low P/E may have more prominent potential for rising. P/E ratios ought to be utilized in the mix with other money-related ratios for educated basic leadership.

The ultimate object of any investment returns. Return on equity, or ROE, measures the return that investors get from the business and overall profit. It enables financial investors to look at the gainfulness of companies in a similar industry. A figure is in every case better. The ratio features the capacity of the administration. ROE is net gain partitioned by investor value.

What you need: Income Statement, Balance Sheet

The formula: Return on Equity = Net Income / Average Stockholder Equity 

ROE of 15-20% is commonly viewed as great, however high-development companies ought to have a higher ROE. The primary advantage comes when profit is reinvested to create a still higher ROE, which thus delivers a higher development rate. However, a rise in debt will also reflect in a higher ROE, which should be carefully noted.

One would expect leverage companies, (for example, those in capital concentrated organizations) to show expanded ROEs as a noteworthy piece of capital on which they produce returns is accounted by debt.

Current Ratio

The present ratio is a famous monetary ratio used to test a company’s liquidity — also alluded to as its current or working capital position — by determining the extent of current resources accessible to cover current liabilities. The idea driving this ratio is to learn whether a company’s momentary resources (money, money reciprocals, attractive securities, receivables, and stock) are promptly accessible to satisfy its transient liabilities (notes payable, current segment of term obligation, payables, gathered costs, and charges). In principle, the higher the present ratio, the better.

What you need: Balance Sheet

The formula: Current Ratio = Current Assets / Current Liabilities  

This demonstrates the liquidity position, that is, the manner by which the company is equipped in meeting its momentary commitments with transient resources. A higher figure flags that the company’s everyday operations won’t get influenced by working capital issues. A current ratio of short of what one involves concern.

The ratio can be calculated by dividing current assets with current liabilities. Current assets include inventories and receivables. Sometimes, companies find it difficult to convert inventory into sales or receivables into cash. This may hit its ability to meet obligations. In such a case, the investor may calculate the acid-test ratio, which is similar to the current ratio but with the exception that it does not include inventory and receivables.

Conclusion

Financial ratios can help understand the mind-boggling amount of data that can be found in a company’s fiscal statements. Realizing how to select little bits of imperative data, join them with other little bits of data and translate the subsequent number is a greater amount of workmanship than a science. Yet, it’s without a doubt a standout amongst the most vital expressions that a financial investor should rehearse.

The post Financial Ratios that are relevant for Investment in a Company appeared first on iPleaders.

This article is written by Gareema Ahuja, an academician based in Delhi and working in LawSikho. Here she discusses the common mistakes made by law students while applying for internships.

We law students spend 5 years or 3 years in law school assuming that we are getting prepared to face the real world. We think that we will work for a law firm and earn lakhs of rupees in the future.

We get inspired by the famous show ‘Suits’ and decide this is what we want to do.

We read about Ram Jethmalani or any famous lawyer and think this is what we want to do.

Then we dream of buying a car, house, expensive clothes, perfumes, watches, shoes, etc. All this is dependent on the five years we are giving to the law school. I call this phase as expectations from life.

Now the next phase is the reality. Where it is difficult to find a  job or even if found you are not paid more than 15000 – 20000 a month. It seems the Uber drivers, chai wallahs, and carpenters are earning more than you!

This is because law school does not teach the practical skills required to actually do the work a lawyer has to do. I was a law teacher myself, and I can assure you that it is not even possible to teach those practical things in a law school that you need to learn because law schools have to follow an archaic syllabus set by a regressive body called BCI. Also, the majority of the law teachers simply do not know what is actually happening in the industry because BCI banned law teachers from practicing law.

How can we teach you out of syllabus things that we do not even know anything about? So you graduate completely unprepared for the real legal industry. You may know some sections and case laws, but you have no idea about how to actually get the work of the client done.

Let’s take an example. We study the law of contract in our first or second year. That’s great. But do we learn how to draft a contract? No law firm is going to hire a person just to know the essentials of a valid contract or some sections or case laws and pay you lots of money for that. One obviously need to know how to draft contracts, and that is what will get you clients and your fees.

How do you plan to learn that? You are left to your own devices by law schools for that.

Let’s take another example. We study CPC in college.  However, is knowing the sections sufficient? Even if you get the highest marks in CPC, do you know how to draft a legal notice or reply to a legal notice or draft an application for the injunction? How are you going to learn these things? On the job? In that case, your salary will reflect your lack of real-life skills.

How do you use your time? You have a lot to do. Most law students fail to capitalize on their time in law school, and while away big opportunities for developing oneself to be a good lawyer.

What are the things you can do to ensure that you are using your time judiciously and when the expectation phase gets over the reality is not harsh?

I recommend writing blogs, internships, doing online courses (where one learns the actual practical skills not just gets a certificate to mention in the CV), dealing with real cases by apprenticing with lawyers round the year, building a network, learning new skills even outside legal skills.

Out of all these things, one critical thing would be internships. A lot depends on the kind of internships you bag and perform well in.

There are 5 years in law college. Or 3 years. It is enough to do all these things if you plan well. Great support could be having a mentor or a coach who is guiding you throughout the ‘expectation from life’ phase. And your chance of getting a mentor from an internship is quite high if you do things right.

The internship is important because it gives exposure and networking opportunity. It helps in choosing the actual area of interest. Sometimes, it can help you to learn practical skills.

Internship teaches us how to behave in an office, teamwork, value of time, reporting to seniors, using important software – basically helps in overall development.

Important factors we should consider while choosing an internship

• whether the internship will give an opportunity to figure out a career choice
• whether you will be able to learn from your supervisors
• will you be making an impact
• will you be enhancing your skills
• will you be experiencing something new

Make a clear plan about what you want to learn from your internship. You should keep revisiting and ticking off what all have you already learned, and ask your mentor or supervisor for support to learn the remaining skills in your list. Remember that a 30-day internship is quite short, and you can learn very few skills in such a short time. Try to go for longer internships.

I am the internship manager at LawSikho, which is one of my many responsibilities. We get over 500 emails asking for internship in busy months. It is difficult to even open all of them, forget replying! Unfortunately, most applications betray a clear lack of understanding of what it takes to get an internship.

Too many applications are full of errors!

As a law teacher and mentor to many law students, I decided to write down about all the mistakes I see very often that frustrates me!

If you are not getting good internships, a big reason could be such mistakes. Please go through the list below and make sure that you never make such mistakes.

What are the common mistakes a person makes while applying for an internship  

#1

Sending the same email to multiple organisations

One should apply to many organisations for an internship. Relying on only one organisation might not be the right approach. But sending the same email to all organisations is not correct. You should customize your mail according to the organization and make sure that you do not send the wrong mail to the wrong organization, and certainly not apply by keeping lots of emails on cc: or bcc:. It just shows that you are lazy, unprofessional and not at all serious for the internship. Also, the organisation you are sending it to will probably not reply back.

Also, the email should not be a forwarded email. For example, I sent an email to XYZ organisation and I am forwarding the same to ABC. This is absolutely not ok.

#2

Sending a resume without a proper professional cover letter, or adding cover letter as an attachment and other oddities

Sending an email without a subject or a cover letter, only attaching your CV doesn’t help. You are sending your CV by email, and if there are mistakes or oddities in the mail, nobody will take your application seriously. Please follow rigorous professional standards while mailing. The language also has to be error-free.

The covering email is very important. It is basically the email that you send with your CV attached. It helps the recipient to decide whether it is worth taking a look at your CV when they are receiving too many CVs. You can highlight your qualifications and skills in the covering email. It might be time-consuming to write a cover letter and most of the law students do not know how to write one. But avoiding the labour of learning how to write one is not good.

The resume should always be shared in the pdf format and the name of the file should be your name. Sharing the resume with a file name ‘document’ or ‘CV’  could be taken as a sign of being ignorant and unprofessional.

The resume should be an updated one. If you are in your third year the resume should not state you are in your first year.

When applying for an internship ensure your username and even the email address is professional. Do not apply from email ids like sweet16allhabad@gmail.com or usernames like Paagal Diwana Rahul etc. This is absolutely not acceptable, still, I see many students making such rookie mistakes.

#3

Not specifying the duration of the internship

Students randomly apply for the internship without specifying the duration they want to intern for. If someone writes the summer internship it could be in the month of May, June or July. An organization might not have available slots in the month of  May or June but might have it for July. Do you think they would respond asking you the duration of the internship and then process your application when they receive at least 50 applications in a day?

Please make it clear during which days you are available to intern.

#4

Forgetting to attach the CV in the email

Some students forget to attach their resume but call to follow up! What are they expecting? A reply from the internship manager stating you forgot to attach your CV. Unfortunately people are busy, and nobody reads your internship applications as a full time job. People will just ignore your mails if you make mistakes and if they get many such mails.

Kindly take responsibility for your application being perfect and something that the internship manager can easily respond to.

#5

Not completing the task on time

When you apply for an internship, you might be expected to perform certain tasks for selection. At LawSikho, we tell students to write an article and give them one week to submit it. Not completing it on time, then calling up at 10 PM in the night or on a festival and asking for an extension is very unprofessional. It shows that you are not serious about the internship or you do not respect the other person or maybe you do not value our time.

There could be genuine reasons due to which you could not submit on time. Ask for an extension on an email stating the reason or call the person on working days during working hours.

#6

Following up at the wrong time

Once you send an application following up is important. But following up every day or following up within 24 hours of sending the application is not good. The person might have other important tasks to complete in office and replying to internship applications is not the priority.,

You could follow up once a week. Find out better ways of following up instead of simply calling, write a follow-up email. It is usually not advisable to follow up on LinkedIn. Please do not follow up for your friends, let them do it themselves. I received a call yesterday from somebody. She said “Ma’am, I have got a reply to my application but my friend did not and we want to intern together.” As an internship manager, this is not something I am concerned about, and such requests show you in poor light.

I would advise that you intern without your friends because you will be able to network more. If you join with a friend you will probably be busy talking to her and not make new friends. You need to step out of your comfort zone.

#7

Making grammatical errors in the application

Another disaster which law students do is making grammatical errors in the cover letter or simply copying it from some website. If you copy a template from some website ensure you are reading it and editing it thoroughly as per your achievements. The font should be uniform throughout and there should not be irregular spacing. If you can’t even write a mail without making a mistake, why would anyone want to take you as an intern?

Also remember the Hindi proverb: Nakal ke liye akal chahiye.

#8

Research about the organization you are applying to

I receive so many applications where iPleaders is spelled as IP leaders or LawSikho is spelled as Law sikho. People write that they want to intern with our non-existent “esteemed law firm”. Do I want to give internships to people who are so careless? If you do not know the name of the organization or the work they do, why do you want to intern there? And why should they give you the internship?

If you can show that you understand what the organization does and if you can state in your covering mail how you can help the organization, that increases your chances by manifold.

The post Common Mistakes Law Students make while Applying for Internships appeared first on iPleaders.

In this article, Colin Fernandes, currently pursuing Lawsikho Diploma in Entrepreneurship Administration and Business Laws discusses crowdfunding.

Are you aware that over 94% of new business fail during their first year of operation and lack of funding is one of the main reason. Crowdfunding is one of the new ways where business like startups can look for funding their operations and expansion.

What is Crowdfunding?

I would like to explain it through a simple example. During the festival of Lord Ganesha (Ganpati) in my hometown in Mumbai, the organizers of the festival (Ganpati Mandal) used to collect chanda (donation) for constructing the Ganpati pandal, organizing events for 9 days, etc. They used to visit each household in the vicinity for collecting the ‘chanda’ that is -donations in small and big amounts. The house owners contributed whatever amount they wished (some would simply refuse). In today’s world, this collection of chanda is called crowdfunding.

Today, crowdfunding is used for various purposes like funding a venture by raising money from a large number of people, especially via internet. The people who contribute are called investors, and they can contribute any amount of money depending on their capabilities. It targets individual donors.

Nonprofits organizations also use crowdfunding to collect donations. They often refer to crowdfunding as “online fundraising,” “social media fundraising” or “peer-to-peer fundraising.”

SEBI in its consultation paper defined “crowdfunding is a collection of funds (small amount) from multiple investors through a web-based platform or social networking site for a specific project, business venture or social cause”.

What are the various forms of Crowdfunding?

Equity-based Crowdfunding

This form of raising fund is illegal in India (more will be explained). In this type of crowdfunding, investors (generally VC’s and angel investors) invest large funds to get a major share of equity in the startup. Normally equity-based crowdfunding is used typically used for the growth of the company.

Reward-based crowdfunding

There is no issue of securities in this form of fundraising. This is very common in the US. As the name suggests, investors will receive a reward (tangible goods) for their investments. For example, if a startup manufacturers phones, the investor will receive phones over a period of time in return for their investment. This form of funding is legal in India.

Donation-based crowdfunding

There is no issue of securities in this form of fundraising.  This type of funding follows a philanthropic approach where donors contribute for a social cause, project or any initiative without expectation of any reward in return. This form of funding is legal in India. Donors are generally provided with the background of the recipient, supporting evidence based on which he can decide to donate. He is always provided with an update.

Peer to Peer (debt) crowdfunding

In debt crowdfunding investors have the option to lend small amounts of money with a goal to earn fixed repayment interest during the term of the loan. Normally borrowers will seek unsecured loans from investors who want to earn higher Interest rates. This form of crowdfunding is regulated by the RBI.

List of Crowdfunding companies operating in India

Equity-based crowdfunding companies in India

1. Angelpaisa.com: commenced operations in July 2010 in collaboration with some of its counterparts in US and local investors by working on projects in the real estate sector and websites
2. Gocrowdera.com: Founded in California by 2 Indians and 1 American. It has global operations and has also established an Indian branch.

• Reward-based crowdfunding platforms

1. Wishberry.in: Founded in 2010 and operating in Mumbai, it is a donations-for-rewards crowdfunding platform and funds only creative projects like film production, design, photography, music, dance, art, etc.
2. Dreamwallets.com: HQ in Jaipur with branches in Mumbai and Pune, DreamWallets is an online reward-based collaboration platform. The people who invest are rewarded in non-monetary way.

• Donation based crowdfunding platforms

1. Milaap.org: HQ in Bengaluru, added donations on its portfolio in 2014. It supports people in need of funds for medical purposes, social projects.
2. Ketto.org: Mumbai-based Ketto supports allows people and NGOs to raise money for social, creative and personal causes

• Peer to Peer crowdfunding platforms:

1. Faircent.com: HQ in Gurgaon, this platform borrowers & lenders to discuss directly the terms of loans including interest rates. It is India’s first peer-to-peer (P2P) lending platform to receive a Certificate of Registration (CoR) as an NBFC-P2P from the Reserve Bank of India (RBI).
2. Rangde.org: Located Bangalore, it helps rural entrepreneurs with low-cost loans across the country.

Is crowdfunding legal in India?

• Reward-based, Donation-based crowdfunding is allowed in India as it does not involve the issue of securities.

• Equity-based crowdfunding

At present, equity crowdfunding is illegal in India.

SEBI had issued a consultation paper in 2014, regarding the regulation of equity-based crowdfunding in India. The concept of crowdfunding, its advantages, risks was analyzed and few guidelines as follows were issued:

• Accredited Investors are allowed to invest;
• Retail Investor contribution (Min  Rs. 20,000 & Max Rs. 60,000)
• Retail investors up to max 200
• QIBs (Qualified Institutional Buyer)must hold at least 5% of issued securities;
• Start-ups less than two years old only eligible
• Disclosure requirements & Registered crowdfunding platform to conduct regulatory checks of start-ups and investors

As a Surprise after issuing the consultation paper in a release in September 2016 SEBI issued a warning to Investors asking them to not participate in equity crowdfunding. In the release, SEBI declared that electronic platforms open to all investors registered with the platform amount to a contravention Securities Contract Act and the Companies Act.

(source https://www.moneylife.in/article/sebi-puts-brake-on-crowdfunding/48150.html)

Currently, SEBI is reportedly in the process of finalizing crowdfunding norms and is working with appropriate authorities.

Peer to Peer crowdfunding

Peer to Peer crowdfunding is legal in India. The RBI regulates all P2P lending platforms. In August 2017, RBI issued a notification and classified P2P lending platforms under the Non-Banking Finance Company (NBFC) category as NBFC-P2P.

(for notification click http://egazette.nic.in/WriteReadData/2017/179038.pdf)

On 4th October 2017, the RBI issued regulations for peer to peer (P2P) lending platforms. (source: https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11137&Mode=0)

Advantages versus disadvantages of raising finance through in crowdfunding:

What are the legal implications of equity crowdfunding (for investors)?

The biggest investor fraud case involves Subroto Roy owned Sahara group. Sahara real estate corporation raised over USD 3 billion from nearly 30 million investors through various means. It argued that the fundraising was not governed by SEBI regulations as it did not issue securities. As a result of the Sahara case, a provision was introduced in the Act which states that irrespective of whether a company intends to list its securities, if an offer to allot securities is made to more than fifty persons, it would be deemed to be an IPO. This will bring crowdfunding under the IPO regulatory umbrella.

(read more details at https://www.firstpost.com/india/how-saharas-subrata-roy-was-smoked-out-by-rbi-sebi-1413273.html)

Still, in its early stages, crowdfunding is set to grow very fast despite no legal frameworks to regulate it. SEBI and RBI are trying to regulate crowdfunding and its legal implication in India, but as the industry size being rather small currently it is a difficult task to draft a standard law or policy.

SEBI  is finalizing the regulatory framework for crowd-funding in consultation with the corporate affairs ministry. It may require all crowd-funding platforms to register with them, fulfill compliance requirements like these platforms will be asked to collect KYC documentation. They will also be required to send reports of all successful fund-raising exercises to the market regulator.

Conclusion

Crowdfunding is modern day term for “chanda”.  In today’s world, it is a market-based platform where investors with funds provide funds to a business in need of fund and all this happens in seconds. It can be distinguished into different types depending on the purpose the crowdfunding serves. There are many crowdfunding platforms operating in India some of which are regulated and some not. Sahara case was the biggest fraud in Indian history and it involved a crowdfunding setup. Due to the risks it possesses for investors and investees, SEBI and RBI are looking at ways to regulate crowdfunding companies as it is expected to grow rapidly.  

 Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.                    

The post What is Crowdfunding? How can you do it? appeared first on iPleaders.

This article is written by Ramanuj Mukherjee, CEO, LawSikho.

#1

Develop your personality

Everybody knows that they have to do it. But where do you start? What are the actions to take?

I have a few personal principles. Number one is to stop trying to impress others.

We are born with the instinct of impressing other people and live with the instinct of making ourselves look good, constantly. We want other people to take interest in us, so we try to be interesting. We do not want to listen to what others have to say, we just want others to listen to us.

The biggest breakthrough is when you understand this and flip it around. Magic happens.

It is much more powerful to be interested than to be interesting. You will get a lot more results if you take a genuine interest in other people.

You will learn to speak, that is the easier part. Learning to listen is even harder. The best leaders do not listen only with their ears. They listen with their whole body, mind, and soul. People, therefore, love to talk to them.

You want to be the boss. You want to be an important person in the room, you want people to come to you. This is much inferior to an approach and the source of poor personality.

If you really want to be a leader, if you really want to develop your personality, do the opposite. Give importance to the other person. Put other people in leadership. True leaders create more leaders, not followers. You go to people and take care of them and talk about their interest.

This is what is at the source of building an amazing personality with charisma that everyone is attracted to.

Charisma is a serene passion. Cultivate your passion and interests. What do you deeply care about? What can you give your life for? When you find that and dedicate your life to that, you become something bigger than just a person.

That is how amazing personalities are born.

#2

Learn to express yourself

Expressing yourself coherently and cogently is difficult. Most people cannot do it. I still struggle to do it sometimes after so many years of training, trying and occasionally succeeding.

At the heart of expressing yourself is sharing your vulnerability. Most people think that showing their vulnerability makes them weak and pathetic. To the contrary, it takes away the only weapons your opponents ever had.

Gandhi wrote about all his misadventures and the bad things he did in his youth. He went to a prostitute, he ate non-veg (against his caste and religious practice), he lied in self-interest – and he wrote about all of it. Baring his soul endeared him to the country and made him the Mahatma.

If you share your weaknesses and you talk about how to redeem yourself, that makes you powerful, not weak.

Being able to speak from your core, being able to share what is really important to you minus all the pretense and drama, to bring out what is the essence of you as a person is something very powerful. All great artists, songwriters, novelists, performers are able to do it. And that is exactly what a lawyer also must learn to do.

It is not taught in law school, it is not taught in a course. You have to learn it yourself. But when you learn to speak your truth, the world will sit up and pay attention.

#3

Identify your niche

You can’t be good at everything.

However, you can be damn good at a handful of things. It is often enough to be great in just one thing.

Law is too vast for you to be good at every branch. It is far easier to be superb at just one subject. If you keep pursuing it further than everyone else, you will reap rich dividends in every way.

Most people take too much time to decide what is their niche, what is the area on which they are going to build their expertise and concentrate effort. This is a huge waste.

Please do not worry about choosing the right subject. Pick something that catches your fancy. And then learn everything that is there to learn about that subject. Learn more than a law firm partner or a lawyer practicing for more than 10 years will know. In that one subject, set the bar very high.

Write articles about it. Visit conferences on that subject. Get to know people in that area of law. Get to know the industry. Try to convince your teachers to write projects about that subject. Do all your internships around that area of law.

Take the example of Ashwin Shankar, a leading shipping lawyer in the country today. He interned with a shipping lawyer in his 2nd year. Then he did all his internships with the same firm and one day he became a partner in that firm. He did all his college projects around some or the other aspect of shipping law. In insurance class, he will write a project about shipping insurance. In contract course, he will write about shipping contracts. In constitutional law class, he would convince his teacher to let him write about admiralty jurisdiction or sovereignty over the continental shelf and sea beds. I am not sure the topics are correct, based on my memory, but you get the drift.

Please pick your specialization as soon as possible and focus all your energies on it!

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The post 3 Amazing Things you Need to Learn to Transform your Career appeared first on iPleaders.

This article is written by Abhilasha Mondal.

A bit about my Law School experience

I went to law school at NLS, Bangalore, and as is the case with most of us, law school was an incredible learning experience in so many ways. Everyone around you is smart, but I learned that only the industrious really differentiate themselves. Further, what I loved most about law school is that I had abundant opportunities to explore activities outside of academics, and I took an active interest in sports, community projects and inorganizing competitions and conferences in law school. In fact, I often reflect on my choice of activities in law school and notice how they have played a crucial role in shaping me as a professional today.

Experience in Khaitan and the Funds Team

After graduating from NLS in 2015, I joined Khaitan & Co as an Associate.

Khaitan was a great place for a fresh graduate such as me, who was looking to explore and understand the various practice areas in a law firm. I am lucky to have worked on a variety of transactions such as mergers and acquisitions, financing transactions, fund formations and investments, and corporate disputes. In fact, I believe that deep within, it is this exposure to multiple transactions, practice areas, and stakeholders, that truly sowed in me, the seeds of aspirations in an alternative career.

I picked the Funds team as my permanent team, where I had the opportunity to work with leading domestic and international banks, financial institutions, and wealth management companies on avant-garde investment structures in the Indian market. I preach this to every junior seeking advice, the Fund’s team at Khaitan is, both, culturally and professionally, one of the best teams to work for, across Tier 1 law firms. I say this not only because it is a prestigious team to be associated with, but because it was a small team which was deeply invested in both the personal and professional development of all its team members, recognizing that this investment in the individual is crucial to the growth of the practice area as a whole. 

Soon after joining the team, I was given complete responsibility to learn and control parts of large transactions – I received the first-hand experience with client management, and also lead my junior colleagues on several projects. In fact, my partners, Siddharth Shah, Bijal Ajinkya, Divaspati Singh, Vivek Mimani, and the other senior colleagues who I worked closely with, were always available, offering guidance and support as and when required. This sort of environment not only allowed to me grow as a funds lawyer, but also inculcated the subtler soft-skills – qualities of team-building, humility, hard work, and most importantly leadership, which has been instrumental in my professional growth.

Why move from legal to consulting?

As a lawyer advising financial services businesses, I would often learn about the business strategies and commercial rationales behind these transactions. I would try to improve my understanding of the transaction by learning more about the business aspects and by building a good rapport with my clients, as I believed that this would make me an effective lawyer. But in this process, I realized that I not only want to advise businesses from a regulatory perspective but also look into the business strategy, state of technology, etc. and basically advise them from a wholistic perspective. So I began researching on parallel opportunities that would allow me to advise business from this multi-dimensional perspective when I came across firms such as Deloitte, that provide business advisory services to financial services firms, and I realized that management consulting was the platform that I was looking for.

I was fortunate to have a great mentor, Sumit Agrawal, an ex-SEBI legal officer and now founder of RegStreet Law Advisors, who I would often discuss my learnings and plans with, and who convinced me to believe in my abilities and pursue my goals. I was also fortunate to have access to the mature networks of NLS, where several alumni were already entrenched and well-established in a variety of alternative professions.

What were the options on my mind?

In terms of alternative career options, I was looking at consulting firms, start-ups, and policy think-tanks – in that order. I was quite focused on working in the financial services industry but since management consulting firms are difficult to break into, I didn’t want to be picky there. However, in terms of start-ups, I was primarily looking into the micro-lending, payments, and investment management space, whereas in policy, I was primarily looking at those specializing in financial regulation. 

Why leave the high paying job?

Once you have made up your mind on an alternative career trajectory, you can only stay motivated in your current role until the learning there is relevant to your alternative plans. That’s what happened to me. I realized that I needed a different set of skills to become an effective management-consultant, and hence I was ready to leave my high paying job, and look for opportunities outside.

At this point, I had two options: 1 – Go down the MBA route and use that as the platform for a career change, or 2 – Look for opportunities in consulting firms right away. In my situation, I got lucky with Deloitte, who gave me a foot in the door in management consulting. I say I got lucky because consulting firms don’t see lawyers or law students as a typical candidate for the role of management consulting. Thus, I took this opportunity with Deloitte without blinking, knowing well that this was exactly where I wanted to be.

Experience in consulting so far? Pros and cons for Consulting?

My experience so far at Deloitte has been as expected – a steep learning curve. Besides huge learning on the technical side of business strategy and economics, there is a considerable difference in the approach towards researching, analyzing data and presenting our findings to the clients. However, having said that, there are significant transferrable soft-skills that lawyers bring to the table as well, which include – effective communication skills, analytical skills, and problem-solving skills, particularly if you are in a client facing role as in the case of law firm lawyers. 

Consulting firms are culturally very similar to law firms, thus the pros and cons are largely similar. The learning curve is steep, and the quality of the teams and the projects are fantastic, which definitely contributes to your personal and professional development. However, the limitations of a client servicing industry prevail ie having to be available at the beck and call of your client. Further, a management consultant may have to travel a fair amount and could be stationed anywhere from a fancy tower in Mumbai’s BKC to an obscure steel plant in Bokaro. 

My advice to others looking to explore alternative careers?

My advice to anybody thinking of careers outside of the law is – don’t think of an alternative career as an escape route from your current role. What you must truly introspect on is the type of work that you wish to pursue. You must ask yourself whether you are willing to let go so many years of legal training, and the credibility that you have built in the legal industry, by virtue of your excellent education and strong professional affiliations. I say this because there are several frustrated lawyers in law firms who seek such alternative options, but who must first consider the various legal opportunities in-house that present great learning and a brilliant alternative to the law firm culture, but which opportunities are often ignored as they are not as “lucrative” or apparently “respectable”. Other options include legal-tech entrepreneurship or public policy, where you can still well leverage your existing reputation and networks in the legal industry. 

However, if you are certain that your professional goals lie outside the law, don’t look back. We have a growing tribe of law graduates in alternative professions (we like to call ourselves Lawyers not Lawyering, read more at – https://medium.com/@subhrosengupta.blr/tl-dr-law-graduates-lawyers-are-slowly-inching-towards-pursuing-careers-other-than-law-5cd831d135b9) who are here to support you through the transition process, with the relevant connects, guidance, internships/ opportunities and even direct job references in certain situations. Don’t hesitate to hit me up if you’re somebody who is considering a career outside of the law – I am always happy to share my experiences and learnings!

The post Why I Left a Big Law Firm job for a Career in Consulting appeared first on iPleaders.

This article is written by Wardah Beg, student, Faculty of Law, Aligarh Muslim University

Introduction

Let us begin this topic by understanding what ‘remedy’ actually means in Law. A party is said to be ‘aggrieved’ when something that they may have been enjoying has been taken away from them by another party. This is an infringement of a party’s rights and it is treatable by law. A legal remedy is one such treatment. When the aggrieved person is taken back to the position that they were enjoying before their rights were infringed, they are said to have been provided with a legal remedy. There are various types of legal remedies. For instance, if something that belongs to you has been taken away from you by a party, the court can either ask them to pay you back in money, or ask them to return your belongings as they were, and may also punish the party in some cases. There are two broad types of remedies in Tort Law.

1. Judicial Remedies
2. Extra-Judicial Remedies

Judicial Remedies

As the term suggests, these are the remedies that the courts of law provide to an aggrieved party. Judicial remedies are of three main types:

1. Damages
2. Injunction
3. Specific Restitution of Property

Extra-judicial Remedies

On the other hand, if the injured party takes the law in their own hand (albeit lawfully), the remedies are called extra-judicial remedies. These are of five main types:

1. Expulsion of trespasser
2. Re-entry on land
3. Re-caption of goods
4. Abatement
5. Distress Damage Feasant

Now, let us discuss both judicial and extrajudicial remedies in some detail.

#1 Damages

Damages, or legal damages is the amount of money paid to the aggrieved party to bring them back to the position in which they were, before the tort had occurred. They are paid to a plaintiff to help them recover the loss they have suffered. Damages are the primary remedy in a cause of action for torts. The word “damages” should not be confused with the plural of the word “damage”, that generally means ‘harm’ or ‘injury’.

Types of damages

Depending upon the ‘objective’ of the compensation, that is, whether the plaintiff is to be compensated or the defendant has to be ‘punished’, there are 4 types of damages:

1. Contemptuous– contemptuous damages are also called ignominious damages. The amount of money awarded by the court in this case is very low, as to show the court’s disapproval, that is, when the plaintiff himself is at some fault and cannot wholly be said to be ‘aggrieved’.
2. Nominal– Nominal damages are awarded when plaintiff’s legal right is infringed, but no real loss has been caused to him. For example, in cases of trespass, when damage has not been caused, a legal right is still infringed. Here, the objective is not to compensate the plaintiff.
3. Substantial-Substantial damages are said to be awarded when the plaintiff is compensated for the exact loss suffered by him due to the tort.
4. Exemplary/Punitive– These are the highest in amount. Punitive damages are awarded when the defendant has excessively been ignorant of the plaintiff’s rights and great damage has been caused to the defendant. The objective here is to create a public example and make people cautious of not repeating something similar.

General and Special Damages:

When there is a direct link between the defendant’s wrongful act and the loss suffered by the plaintiff. For instance, a person A, due to his negligence, collides his car with a person B, who has a rare bone condition. In this case, the actual damage suffered by the plaintiff will be compensated, not taking into account the rare bone condition of the plaintiff. General damages are ascertained by calculating the amount of actual loss suffered by the plaintiff. For e.g, physical pain and loss caused due to it, or if the quality of life of the plaintiff is lowered.

Special damages are awarded by proving special loss. There is no straitjacket formula to derive the actual amount. The plaintiff just has to prove the loss suffered by him/her. For e.g., medical expense, loss of wage (prospective), repair or replacement of lost or damaged goods/property.

Damages for nervous or mental shock:

Nervous shock

When, due to a negligent act or any other tortious act, a plaintiff’s nerves are damaged due to shock and trauma, irrespective of whether a physical harm has also been caused with it, he/she is entitled to be compensated for it. The question before the court of law is whether the nervous shock is actually a resulting consequence of the defendant’s act.  

Mental shock

Mental shock, on the other hand is the shock to a person’s intellectual or moral sense. Mental shock, too, can be compensated for in a suit for damages. Earlier, it was thought that mental shock cannot really be compensated for, because it cannot be measured, but recently the courts have recognized that the damage in case of mental shock is just as real as a physical injury.

Cases:

McLoughlin v O’Brian

The plaintiff’s husband and three children met with an accident with the defendant, due to the defendant’s negligence. After seeing her husband and children grievously injured, and hearing the news of one of her children’s death, the plaintiff suffered nervous and mental shock and went into a state of clinical depression. The House of Lords in this case ruled in favour of the plaintiff, McLoughlin, whereby she recovered damages for her nervous shock too.

Gujarat State Road Transport Corporation, Ahmedabad v. Jashbhai Rambhai

The plaintiffs in this case were relatives (mother and children) of a middle-aged couple who met with an accident when another moving bus drove over them as soon as they deboarded their own. The court delivered a judgement in favour of the plaintiffs, and they received compensation under the heading of ‘Pain, Shock and Sufferings’.

Measurement of Damages

There is no arithmetic formula to decide the quantum of damages. Therefore, a number of factors, including the facts and circumstances of each case are to be considered to ascertain the damages. Damages are therefore awarded at the discretion of the court.

Remoteness of ‘Damage’

As discussed above, the main aim is to bring the aggrieved party back to the status quo, that is, compensating the plaintiff. As a general rule, damage suffered by the plaintiff should be a direct consequence of the defendant’s act. Any action can have multiple following consequences. A person cannot be held accountable for all the consequences resulting from his act. The remoteness of consequences resulting from a person’s act has been an issue of debate in the Law of Torts over the years. Various tests were developed over time to determine what consequences of an act can a person be held liable for. When there is no cause and effect relationship between the defendant’s act and the injury caused to the plaintiff, the damage is said to be too remote to be compensated.

Re Polemis Case (Re Polemis & Furness, Withy & Co Ltd)

In this case, Polemis, the plaintiff owned a cargo ship that they had chartered to the defendants.  While unloading cargo from the ship, the defendant’s employees accidentally knocked a plank into the ship, which caused a spark to ignite, that resulted in an explosion. The question before the court was, whether the damage due to the explosion was a direct result of the act of the defendant’s employee.

Leisboch Case (Liesbosch Dredger v SS Edison)

In this case, the plaintiff’s dredger was damaged and sunk by the defendants (Edison), due to their negligence. The dredger was working under a contract with the terms that some amount had to be paid if the work was not completed on time. The plaintiff did not have enough funds to arrange a new dredger to complete the said work. They claimed all the resulting damages. The court held that the plaintiff’s own lack of funds cannot be compensated by the defendants.

Wagon Mound Case (Overseas Tankship Ltd. v. Morts Docks & Engineering Co.)

In this case, the defendants owned a ship (The Wagon Mound No. 1). The plaintiffs were the owners of a dock named Morts Dock. Due to the defendant’s negligence a spark was ignited that set some floating cotton waste nearby on fire, due to which the plaintiff’s wharfs and their ship, the Wagon Mound was damaged.

Purpose of Damages in Torts

The main object behind remedying by damages is to bring the plaintiff back into the position that he/she was in before the injury due to the tort occurred, or in other words, to bring him back to the position he would have been in, if the tort did not ever occur.

#2 Injunction

Injunction is an equitable remedy available in torts, granted at the discretion of the court. An equitable remedy is one in which the court, instead of compensating the aggrieved party,asks the other party to perform his part of the promises. So, when a court asks a person to not continue to do something, or to do something positive so as to recover the damage of the aggrieved party, the court is granting an injunction. A very simple example is that of a court ordering a company of builders to build on a land near a hospital, for the construction sounds may be creating a nuisance to the hospital.

An injunction is  an order of a court that restrains a person from continuing the commission of a wrongful act, or orders the person to commit a positive act to reverse the results of the wrongful act committed by him, that is, to make good what he has wrongly done. To receive injunction against a party one must prove damage or the possibility of prospective damage (apprehended damage). An injunction can be temporary or permanent, and mandatory or prohibitory. Let us discuss each of them one by one. Law relating to injunctions is found in the Code of Civil Procedure, 1908 and from Section 37 to Section 42 of the Specific Relief Act (henceforth referred to as the Act), 1963.

A suit of injunction can be filed against any individual, group or even the State.

According to the Section 37 of the Act there are two types of injunctions–temporary and perpetual (permanent).

Temporary Injunction

A temporary or interlocutory injunction is granted during the pendency of a case, to maintain the status quo and avoid further damage until the court passes a decree. It prevents the defendant from continuing or repeating the breach that he had been doing. A temporary injunction is granted to prevent the party from suffering through the damages during the court proceedings. They may be granted at any stage during the pendency of the case. Either of the parties can seek an injunction to be granted.The power to grant a temporary injunction is derived from Rule 1 and 2 of Order XXXIX (39) of the Code of Civil Procedure. Certain principles are kept in mind while granting a temporary injunction:

1. There has to be a prima facie case.
2. A balance of convenience has to be maintained. (That is, which party is more at loss, etc.)
3. There has to be an irretrievable damage. (The damage has to be such that cannot be compensated for, in money)

Cases in which temporary injunction is granted

A temporary injunction may be granted in any of the following cases:

• An injunction can be granted in favour of a party and against the government if the government is barring the party from doing a lawful act or freely exercising his rights.
• Under Section 80 of the CPC, an injunction can be granted against an act done by a government/public officer working in his official capacity.
• When the property in dispute is in danger of being damaged or wasted by either of the parties.
• In cases of tenancy. A plaintiff being unjustly removed as a tenant, that is, not through the due legal process, can seek an injunction against his/her landlords.
• In case of a continuing nuisance, where the defendant is asked to discontinue his act of nuisance so as to prevent further damage to the plaintiff while the case is being decided.
• In cases of trademark, copyright infringement, etc.

Permanent Injunction

A perpetual or permanent injunction is granted after the court has heard the case from both sides and passes a decree. Here, since it is a court decree, it is final and perpetually applicable. That is, the defendant cannot continue his wrongful act, or has to do a positive act for perpetuity.

Cases in which permanent injunction is granted

• To avoid multiplicity of judicial proceedings.
• When damages do not adequately compensate the plaintiff.
• When the actual damage cannot be ascertained.

Mandatory Injunction

When the court has asked the party to do something, it is a mandatory injunction. That is, when the court compels a party to perform a certain act so as to bring back the aggrieved party or the plaintiff to the position that he/she was in before the commission of the act of the defendant. For example, the court may ask a party to make available some documents, or to deliver goods, etc.

Prohibitory Injunction

When the court has asked the party to not do something, it is a prohibitory injunction.The court prohibits a person, or refrains them from doing something that is wrongful. For instance, it may ask the party to remove an object of nuisance or to stop his act of nuisance.

When can injunctions not be granted

According to Section 41 of the Specific Relief Act, an injunction cannot be granted:

1. To stop a person from filing a case in the same court in which the injunction suit is sought, unless such an injunction is being asked for, to prevent a multiplicity of proceedings.
2. To restrain or stop a person from filing or fighting a case in a court that is not subordinate to the one in which injunction is being sought.
3. To prevent a person from applying to any legislative body
4. To restrain a person from filing or fighting a criminal case
5. To prevent the breach of contract, performance of which is not enforced specifically
6. To prevent an act that is not a clear act of nuisance
7. To prevent a continuing breach in which the plaintiff has himself acquiesced
8. When an equally effective relief can be obtained in any other way or through any other sort of proceeding
9. When the conduct of the plaintiff (or his agents) has been so wrongful as to disentitle him from the assistance of the court.
10. When the plaintiff has no personal interest in the said matter.

Limitation period

According to Article 58 of the Limitation Act, 1963, the period of limitation for filing an injunction suit is three years from when the ‘right to sue first accrues’, that is, when the right to cause of action commences, not the cause of action itself. It is an important question of law as to when the cause of action actually arises. In the case of Annamalai Chettiar vs A.M.K.C.T. Muthukaruppan Chettiar, it was held that the right to sue accrues “when the defendant has clearly or unequivocally threatened to infringe the right asserted by the plaintiff in the suit”.

Case:

M/S. Hindustan Pencils Pvt. Ltd. vs M/S. India Stationery Products

In this case, the plaintiff filed a suit for perpetual injunction against M/s. India Stationery Products for infringement of their trademark on their product ‘Nataraj’, in respect of pencils, pens, sharpners, erasers, etc, claiming that the trademark was adopted by them in 1961, and that the defendants had wrongly got themselves registered a copyright similar to them. The court ruled in favour of the plaintiff granting the defendant an interim injunction.

#3 Specific Restitution of Property

The third judicial remedy available in the Law of Torts is that of Specific Restitution of Property. Restitution means restoration of goods back to the owner of the goods. When a person is wrongfully dispossessed of his property or goods, he is entitled to the restoration of his property.

Extra-Judicial Remedies

When a person can lawfully avoid or remedy himself without the intervention of courts, the remedies are called extra-judicial remedies. In this, the parties take the law in their own hands. Some examples are:

Expulsion of trespasser

A person can use a reasonable amount of force to expel a trespasser from his property. The two requirements are:

• The person should be entitled to immediate possession of his property.
• The force used by the owner should be reasonable according to the circumstances.

Illustration: A trespasses into B’s property. B has the right to use reasonable force to remove him from his property and re-enter himself.

Re-entry on land

The owner of a property can remove the trespasser and re enter his property, again by using a reasonable amount of force only.  

Re-caption of goods

The owner of goods is entitled to recapture his/her goods from any person whose unlawful possession they are in. Re-caption of goods is different from specific restitution in that it is an extra-judicial remedy, in which the person need not ask the court for assistance, instead, takes the law in his own hands.

Illustration: If A wrongfully acquires the possession of B’s goods, B is entitled to use reasonable force to get them back from A.

Abatement

In case of nuisance, be it private or public, a person (the injured party) is entitled to remove the object causing nuisance.

Illustration: A and B are neighbours. Branches of a tree growing on A’s plot enter B’s apartment from over the wall. After giving due notice to A, B can himself cut or remove the branches if they’re causing him nuisance.

Distress Damage Feasant

Where a person’s cattle/other beasts move to another’s property and spoil his crops, the owner of the property is entitled to take possession of the beasts until he is compensated for the loss suffered by him.

Conclusion

In torts, the object behind remedying a party is to take the aggrieved party back to the status or position that they were enjoying before the occurrence of tort. It is not to punish the defendant, as in crime. Remedies can be judicial and extrajudicial. When due process of law is required for a party to gain remedy, and the courts are involved, the remedies are called judicial remedies. When the law is taken in his/her own hands by the parties, they are called extra-judicial remedies.

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This article is written by Sreejit Nair, pursuing diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho, as a part of his coursework. He is a Partner at S C Legals and deals with IT and Real Estate Laws. 

Introduction

Marine Insurance Contract means an agreement where insurer undertakes to pay to the assured in the manner as agreed between them for the damages occurred during the marine journey. It also includes the incident in which the losses are occurred in inland waters and also on land risk which may be assumed as sea voyage.

The features of Marine Insurance Contract are as follows:-

Insurable Interest

For effecting marine insurance like any other insurance, the assured must have an insurable interest. If there is no such interest, the policy would be a wagering contract and thus it will be void.  Any person does have an insurable interest who is interested in a marine journey or who can get affected due to the losses and damages caused in the marine journey or adventure. The interest must subsist either at the time of effecting the insurance or at the time of loss. Any interest which is defeasible or contingent or partial can be insured. A lender under a bottomry bond or respondentia bond has insurable interest as well as master’s and seamen’s wages, advance freight are insurable, a mortgagee has also insurable interest.

Proposal and Acceptance

A contract of insurance becomes concluded when there is a proposal to the assured and as insurer accepts the contract, irrespective of issue of policy. Though a contract is concluded without issue of policy but it cannot be treated as an evidence if marine policy is not issued with respect to the contract. The policy must specify

1. Name of the assured or of some person who effects the insurance on his behalf
2. Subject matter insured and the risk insured against
3. Voyage or term of policy or both agreed by the parties
4. Sum assured e. Name of the Insurer.

Consideration

Here the premium is called Consideration which is captured in the contract and is computed on the basis of assessment of proposal form and is paid at the time of executing the contract.

Issuance of Policy

Policy can be considered as effective legal evidence in a court of law when it is prepared, stamped and signed and finally issued to the assured party. Although the policy is issued it can be rectified by the order of court to express the intention of parties stated in the contract.

Floating

Marine insurance contract can be a floating policy which means where a policy through which insurance only mentions the general terms and names of the ships are left out and other details to be defined by subsequent declaration to be made by endorsement on the policy or otherwise.

Assignment

It can be transferred by assignment unless there is a term prohibiting transfer and it can be assigned before or after loss. Assignment can be effected through a customary manner or any other manner as agreed between the parties. The party cannot assign the policy after losing interest in the subject matter.

Doctrine of subrogation

This doctrine means that the assured shall not get more amount than the actual loss or damage caused. The insurer has the right to receive compensation from the third party from whom he is actually liable to receive the amount after the payment of the loss/damage amount. In marine insurance the right of subrogation arises only after the payment. The assured shall assist the insurer in every possible manner to receive money from the third party.

Utmost good faith

The doctrine of utmost good faith is covered in section 19, 20, 21 and 22 of the Marine Insurance Act 1963. Contracts regarding insurances are based on the principle of uberrimae fides which means utmost good faith. If any party to the contract fails to comply with this principle then contract can be avoided by the other party.

The duty of the utmost good faith applies also to the insurer. He may not urge the proposer to affect an insurance which he knows is not legal or has run off safely. The obligation of utmost good faith and disclosure of correct facts is more on assured as compared to insurer because he is aware of the material common in other branches of insurance are not used in the marine insurance.The assured shall disclose all the material information which may affect the contract in any manner. Any non-disclosure of a material fact enables the underwriter to avoid the contract, irrespective of whether the non-disclosure was intentional or inadvertent. The assured is expected to know every circumstance which in the ordinary course of business ought to be known by him. He cannot rely on his own inefficiency or neglect.

Doctrine of Indemnity

Marine insurance is an indemnity policy under which an insurer agrees to compensate for losses or damages in consideration of the timely payment of premium. The contract of marine insurance shall cover the clause for indemnity as in no case Assured shall be allowed to make profits out of claim amount. There is a possibility of making profits by the party in the absence of indemnity clause in the marine insurance contract.

The insurer agrees to indemnify the assured only to the extent agreed upon. Marine insurance contract does not often includes complete indemnity due to large and varied nature of the marine voyage.

This value may be either the insured or insurable value. If the value of the subject matter is determined at the time of taking the policy, it is called ‘Insured Value’. When loss arises the indemnity will be measured in the proportion that the assured sum bears to the insured value. Transportation cost and anticipated profits are added to the original value so that in case of loss the insured can recover not only the cost of goods or properties but a certain percentage of profit also.

Indemnity applies where the value of subject-matter is determined at the time of loss.Where the value for the goods has not been fixed in the beginning but is left to be determined the time of loss, the measurement is based on the insurable value of the goods. However, in marine insurance insurable value is not common because no profit is allowed in estimating the insurable value. However Indemnity clause has exceptions which are as follows:

1. Profits Allowed

The market value of the loss should be indemnified and no profit is allowed in general commercial contracts, but in marine insurance contract a certain profit margin is also allowed as covered in the Marine Insurance Act.

2. Insured Value

The doctrine of indemnity covers the insurable value, wherein the marine insurance covers insured value. The purpose of the valuation is to determine the value of insured in advance.

Warranties

A warranty means that assured shall abide by and shall fulfill certain condition as covered in contract. If in case any of the warranty is breached, contract shall stand terminated.

Warranties are of two types: Express Warranties, and Implied Warranties.

1. Express Warranties: It is expressly included in the Marine insurance contract.
2. Implied Warranties: It is not covered in the contract but it is assumed to be binding on the parties.
3. Seaworthiness of Ship – Ship should be seaworthy at the time of the journey of the ship begins, or if the voyage takes place in stages, during the beginning of each stage. Seaworthiness is not calculated on the basis of physical condition of ship, but it is calculated on many other important aspects which includes the suitability and adequacy of the parts of the ship, experience and quality of the officers and crew. At the commencement of the journey, the ship must be take the ordinary strain and stress of the sea on which factors the seaworthiness is calculated and looked upon.
4. Legality of Venture; – This warranty concludes that the journey insured shall be legal and that the assured can control the matter it shall be carried out in a lawful manner of the country. Violation of foreign laws does not necessarily involve breach of the warranty. Implied warranty for the nationality of a ship is not covered in the contract.

 Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.                    

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Introduction

The year 2019 witnessed some big changes to the FDI policy coming in force vis-a-vis the e-commerce sector. These new changes are welcomed mostly by the sellers affiliated to the e-commerce industry but loathed by the two big e-commerce giants, namely, Amazon and Flipkart. To be more compliant with the new rules there are some structural changes that Amazon did.

This article seeks to explain the new changes to the FDI policy, the need behind these changes, and the restructuring done by Amazon to comply with the new rules.

What is an FDI policy?

The word FDI stands for ‘Foreign Direct Investment’. It means that when a firm or a business entity located in one country makes an investment in a business located in another country.

The FDI policy is made and regulated in India by the Department of Industrial Policy & Promotion.

There are currently two ways or two routes through which one can invest in India.
The first is the government route for which prior government approval is needed. The second is the automatic route for which no government approval is needed.

Currently, the FDI policy for the e-commerce sector allows 100% FDI for marketplace model through automatic route. This means that an e-commerce entity does not need prior approval from the government before making any investment in India. However, it does not allow FDI for inventory based model of e-commerce.

Further, the current FDI policy only allows engagement of e-commerce entities in a Business to Business (B2B) e-commerce model and not in a Business to Consumer (B2C) e-commerce model.

A Business to Business (B2B) e-commerce model is a model in which the transaction is between two businesses. This mostly happens at a wholesale level. A common example of a business to a business transaction is of Microsoft providing computers to a law firm.

A Business to Consumer (B2C) e-commerce model is a model in which the transaction is between an online retailer/business entity to a consumer, directly. A common example of this model is a suit retailer selling suits online directly to consumers.

What was the need for these changes?

For long, sellers have been complaining against Amazon and Flipkart for flouting FDI norms and giving preferential treatment to some sellers.

Recently, the All India Online Vendor’s Association (AIOVA) had made a complaint to the Competition Commission of India (CCI) accusing Amazon to give preferential treatment to its own sellers Apario and Cloudtail. Apart from this, there have been Flipkart affiliated sellers earlier that requested the CCI to set-up a fair-trade regulatory body to oversee the sector.

The Government also received continuous complaints that some marketplace entities were violating the FDI policy by influencing the prices of products and indirectly engaging in inventory based model of e-commerce.

This new policy is seen as a protectionist policy that helps offline retailers. Since it is the election year, some people are also seeing this as politically motivated due to its protectionist nature.

FDI policy on e-commerce through the ages

The FDI policy on e-commerce was first pronounced by the Government of India in the year 2000 through Press Note 2 (2000 Series). It permitted 100% FDI in Business to Business (B2B) activities. Then, to further provide clarification to the FDI rules the Government issued Press Note 3 (2016 Series). Then, finally, it issued the new Press Note 2 (2018 Series) for reasons stated above.

What is the new FDI policy on e-commerce?

The Department of Industrial Policy & Promotion introduced certain conditions to the already existing FDI policy on e-commerce through Press Note No. 2 (2018 series) on 28th December 2018. It aimed to amend the paragraph 5.2.15.2 of the consolidated FDI policy of 28th August 2017. The new amendments have taken effect from 1st February 2019. Following this, The Department of Industrial Policy & Promotion also provided clarification to these amendments through a press note released on 4th January 2019.

Before going into the policy I would like to define what e-commerce and e-commerce entity means according to the FDI policy.

1. E-commerce: E-commerce means buying and selling of goods and services including digital products over digital & electronic network.
2. E-commerce entity: E-commerce entity means a company incorporated under the Companies Act 1956 or the Companies Act 2013 or a foreign company covered under section 2 (42) of the Companies Act, 2013 or an office, branch or agency in India as provided in section 2 (v) (iii) of FEMA 1999, owned or controlled by a person resident outside India and conducting the e-commerce business.

The guidelines prior to the aforementioned amendments stated inter alia that:-

• For e-commerce entities engaged in an inventory based model, FDI is not permitted. (Inventory model means a model where an e-commerce entity engages in the selling of goods and services directly to the customers and owning the inventory of the said goods and services.)

• For e-commerce entities engaged in a marketplace model, 100% FDI is permissible. (Marketplace model means a model where an e-commerce entity only engages as a facilitator between buyers and sellers by providing an information technology platform.)

There are five major changes made by the Press Note No. 2 (2018 Series). These five major changes amend clauses 4, 5, and 9 of paragraph 5.2.15.2.4 and add two new clauses that are 11 and 12, to paragraph 5.2.15.2.4 titled “other conditions’’.

These changes are:-

• Clause 4: It says that a marketplace model based e-commerce entity will not exercise ownership or control over the inventory of goods it aims to sell. The ownership or control over such inventory of goods will render it as an inventory based model if more than 25% of sales of such business are coming from a single seller.

• Clause 5: It removed the earlier clause that disallowed an e-commerce entity to have 25% of sales in a financial year coming from one seller or their group companies and replaced it with a clause that prohibits an entity or its group companies to have an equity share in a vendor’s company that intends to sell on the said e-commerce entity.

• Clause 9: It adds to the earlier clause and mandates that services (such as logistics, warehousing, advertisement, payments, financing, etc.) provided by the e-commerce entity to vendors selling on the said entity should be provided at “an arm’s length” and in a fair and non-discriminatory manner. It also mandates that cash-backs provided by the e-commerce entity to buyers should also be in a fair and non-discriminatory manner.
  This means that an e-commerce entity can’t tie-up with vendors for exclusive deals in return of low-profit margins for vendors. The clause also explains fair and non-discriminatory manner as a practice in which the same benefits are offered to different vendors in similar circumstances.

• Clause 11: This is a new clause added to the consolidated FDI policy of 28th August 2017. It expressly prohibits any marketplace entity to have ‘exclusive’ tie-ups with the vendors. This means that an e-commerce entity can’t mandate a vendor to only sell its products on the said marketplace. (No more Oneplus-Amazon or Redmi-Flipkart liaison)

• Clause 12: This is again, a new clause that requires an e-commerce entity to furnish proof of compliance with the FDI guidelines. Such a proof will consist of a certificate and a report of the statutory auditor of the Reserve Bank of India. This clause mandates that such proof has to be submitted for the previous financial year before 30th September of every year.

It is important to shed some light on the clarification issued subsequent to Press Note No. 2 (2018 Series) that delves into the nature of these changes. The Government says in the clarificatory note that these changes are not new but only a reiteration of the Government’s stance on what the FDI policy is. As stated above, the Government kept receiving complaints from sellers and other entities regarding the flouting of norms by the e-commerce entities and hence, to make the e-commerce entities fully compliant with the FDI policy, the government issued Press Note 2 (2018 Series.

What has Amazon done to comply with new changes?

Amazon has a joint venture called Cloudtail with NR Narayana Murthy’s Catamaran Ventures in which Amazon earlier owned a 49% equity stake. To comply with the new guidelines Amazon sold 25% of its own shares to Prione Business Services Pvt., a company that is run by Catamaran Ventures making its stake at 24% in Cloudtail.

What is the effect of rejigging by Amazon?

A company is said to be a ‘group company’ if “two or more enterprises, which, directly or indirectly, are in a position to exercise 26% or more voting rights in the other enterprise or can appoint more than 50% of the members of the board of directors in the other enterprise”.
Hence, by selling 25% of its shares to Catamaran Ventures, Amazon has excluded itself and more precisely Cloudtail from being hit by the aforementioned definition of a group company and hence making it compliant with the new FDI rules.

Is Amazon the only victim of the new FDI policy?

No, Flipkart is the other major ‘victim’ of the new FDI policy of the Government.

In May, last year, Walmart (a US giant) acquired a 77% share in the Indian company Flipkart giving Walmart the controlling stakeholder and hence putting Flipkart under the purview of the new policy.

To comply with the new FDI policy, in particular, the rule that puts a 25% cap on buying directly from one seller, Flipkart has built a ‘layer of B2B entities’. It has built this layer by appointing half a dozen intermediaries whose function is to buy goods from Flipkart wholesale and sell them to the preferred sellers like SuperComNet, Omni-Tech Retail and RetailNet who will, in turn, sell them on Flipkart. This will frustrate the aforementioned 25% rule as buying and selling through intermediaries will not be called ‘direct’ and hence will not be hit by the new policy.

What are the disadvantages to Amazon and Flipkart due to the new FDI policy?

Amazon and Flipkart have been deeply impacted due to the new FDI policy. Firstly, it is reported that Amazon and Flipkart together lost $ 50 Bn. in market capitalization with Amazon’s share price falling by 5.38% on NASDAQ and Flipkart’s by 2.06% on the New York Stock Exchange.

Secondly, online sales worth Rs.35,000 to Rs.40,000 crores, which makes up for 35-40%  of the online retail industry could be impacted through the new policy for the fiscal year 2020.

Thirdly, as a consequence of the new policy, Amazon and Flipkart won’t be able to have exclusive tie-ups with sellers for sales of a particular product, and which in turn will make it difficult for these stores to offer big discounts which were one of the reasons why these stores were preferred by consumers over offline retailers.

What are the benefits to other parties, particularly the brick and mortar stores?

The move has been welcomed by the brick and mortar store owners who have been complaining of deep-discounting done by the big e-commerce entities in India.

Between fiscal years 2014 to 2018, the brick and mortar grew by 13% to 13 lakh crore while the e-commerce in India grew at 40% to a 1 lakh crore industry.

This move will give the offline retailers some ease of pressure that they face from deep-discounting done by the online retailers. Further, it is reported by CRISIL, a rating agency, that in the fiscal year 2020, it is estimated that Brick and Mortar retailers could have gains of about Rs. 10,000-12,000 crores.

Apart from the brick and mortar stores, Snapdeal and the Confederation of All India Traders (CAIT) have also welcomed the new move.

Conclusion

As highlighted above, Amazon has already done rejigging to comply with the new norms while Flipkart has built an intermediary network to bypass the 25% rule, all of this done in a matter of 3 months.

The new FDI policy while it does give the brick and mortar stores a temporary hike, and the foreign investment backed online firms like Amazon and Flipkart a temporary setback, this impact, however, is not permanent.

The post How Amazon has Restructured to Comply with new FDI rules on E-commerce? appeared first on iPleaders.

This article is written by team LawSikho.

How is property as a subject matter covered under the RTI Act?

The real estate sector is plagued with instances ranging from anomalies in the registration of the project to circulation of unaccounted money. The real estate market is becoming a pro buyer market with the advent of Acts like RERA 2016.

The compliances under the act are directed to bring out transparency in the manner in which promoters/builders operate in the real estate ecosystem. Buyers/consumers must also be aware of using RTI in property matters to safeguard themselves from any form of malpractices and corruption in the real estate industry.

How are property matters covered under RTI?

The RTI Act covers ‘any public authority’ except national security authorities for seeking information. Therefore, an RTI application can be filed with regard to all matters except in cases involving national sovereignty. Seeking shelter in any form is a fundamental need in society. Property matters and disputes are the most commonly dealt with by people on a regular basis.

How RTI comes into the picture

The democratic ideal of citizen sovereignty is reflected by the enactment of the Right to Information Act.

Suppose you buy a plot in a registered township. The end use is mentioned as ‘residential’ in the land registry deed. However, your investment in the plot of land is not yielding the expected rate of return prevailing in the industry because there is some confusion regarding permissions or some such other complications.

Lack of appropriate permission like non-clearance of the map, no permission for diversion from the town and planning department, changes in zoning, embargo in new constructions in a certain area can cause erosion of investment value. Most of the time, correct information is not easily accessible to most landowners or prospective buyers. What if the land belongs to the green zone but wrongly mentioned in the registry as residential? Such mysteries can be resolved by using RTI.

Land records are generally maintained by collectorate/municipality for the city area or by gram panchayat for the adjoining tehsils and villages. Filing an RTI can help in uncovering critical information related to your property that may be very hard to get otherwise.

Circumstances warranting the use of RTI

• RTI is a powerful tool when corrupt or inefficient officials deny your legal rights or delay important government services that you may need at a revenue office, land record office or sub-registry.
• It can be resorted to know the reasons for the delay in processing your file and delay in addressing the grievance.
• It can help in verification, diligence and collating useful information about the property which can prove useful in negotiating a property deal in your favor.
• It can also be used as a tool to uncover information post the deal if there is any indication that the builder/seller might have hidden material facts during negotiation which could have substantially affected the buying of the property. for eg: any pending litigation, encumbrance etc over the property.

In such above-mentioned circumstances, An RTI application can be filled with the land records office in the Collectorate or the municipality as the case may be.

Filing an  RTI application

An RTI application can be filled u/s 2(f) of the RTI Act against any public authority to obtain the required information and relevant documentation.

The application must mention the following basic details:

• The name of the relevant public authority from whom the information is sought.
• It must also specify the location and details of the property/land.
• Location of the property is important as it helps in determining the district under which the property falls.

Table for making an RTI application in property matters in Mumbai

To conclude, it is imperative to note that RTI is not a redressal mechanism.

• It is a mechanism to assist in obtaining the necessary Information which can prove beneficial in making your case stronger in redressal proceedings.
• It helps in identifying the reasons owing to which work is not done.  
• Simultaneously the applicant must be aware of the Adjudicating mechanisms available to him like LokShahi Adalats, Cooperative courts, litigation etc to make a substantial case for himself with the useful information received by him.

The post RTI in case of Property Matters in Mumbai appeared first on iPleaders.

This article is written by Wardah Beg, student, Faculty of Law, Aligarh Muslim University.

Through this write-up, I have attempted to clarify what are call detail records, how can they be extracted from network service providers and how can they help you in your case. This article has been written with the view to help an aggrieved party, who could make their case stronger by submitting Call Detail Records to the court, if only such details could be accessed.

Call data records may include information like-

-how many calls a person has made

-to which number

-time and duration of calls

-which tower the person received network from while making the particular call.

The tower is identified by its unique tower number. The location is under a sphere of 500 m, and is not always precise. Though with the introduction of GPS, it is now more possible than ever for law enforcement agencies, in collaboration with network service providers to pin the exact latitude and longitude from where the calls were made, or even to locate the current location of a moving subscriber.

CDRs are different from phone tapping in that they contain information about the results of interaction, rather than the content of the interaction, for example, time, date and duration instead of a recording of what the person talked about on a phone call. Phone tapping is done by both governmental and non-governmental (private) agencies by using equipment. This is mostly done for security purposes, where suspects’ phones are tapped, their exact location tracked and their activities monitored. Private agencies often do it illegally with imported equipment. This, of course, is in violation of the Right to Privacy. On the other hand, Call Detail Records are available with the telecom companies that one is subscribed to. For example, as a user of Vodafone, a person’s CDR will be available with Vodafone only.

Why are CDR details required

CDR details can serve a lot of diverse purposes. They may be required for investigation by law enforcement agencies in solving a particular case, for producing as evidence in the court, for personal use,  such as to keep a track of necessary information so as to save it for prospective complaints, tracing missing persons, retrieving lost or stolen mobile phones etc. Over the years, legal extraction of CDR details has helped solve many cases.

According to the Business Standard, the Crime Investigation Division (CID) Branch of Himachal Pradesh Police solved 203 cases in a year through mobile forensic assistance. This involves data like CDR (Call Detail Records), IMEIs (International Mobile Equipment Identity), tower location, CAF (Customer Application Forms), etc. The technical cell of the said branch of CID reports that it receives around a 100 requests a day from investigating agents and return the required information within 12 hours, as they immediately forward the request to telecom companies. This gives us an estimate of how long it takes, through appropriate agencies to retrieve call detail records, which is not more than 12 hours on an urgent basis.

How long is CDR stored with telecom Companies

(Data Retention)

Call Data is stored by telecom companies for a period of 6 months, in accordance with the government guidelines. We will talk more about these guidelines below. Due to high storage costs for the humongous amount of data that could be accumulated (almost amounting to several Petabytes per year, telecom companies choose to store only a limited amount of data, which is six months, or a year and archive the rest of it to tapes. These archives cannot be easily retrieved except in situations where there is governmental pressure, for example, in high profile cases or cases in which there is an immediate threat to national security.

The law relating to data retention is found in ISP and UASL Licenses. The former will be discussed in part 2 of this write-up.

Unified Access Services License (UASL)

There are, currently, 22 service areas in India, classified into 4 metros: A, B, C, D. Delhi, Mumbai, Kolkata, and Chennai are the four metros. The four wireless networks in India are:

1. Airtel India
2. Reliance (Jio)
3. Vodafone + Idea (merged)
4. BSNL + MTNL

The first three are privately owned, while the fourth one is State owned. These are all licensed operators and are required to pay some License fee based on their revenue share. As per the License Agreement, these cellular operators can provide a range of mobile services as long as they meet the relevant ITU (International Telecommunication Standards). Services range from voice messages, non-voice messages, data services, etc.

According to Clause 41.20 (xv) of the License Agreement, “Complete audit trail of the remote access activities pertaining to the network operated in India should be maintained for a period of six months and provided on request to the licensor or any other agency authorized by the licensor”.

What that technical jargon essentially means is that telecom companies are required to maintain our CDR for a period of six months.

According to Clause 41.10 of this License Agreement, the aforementioned service providers are required to make necessary arrangement for monitoring the telecommunication traffic and reveal to the State or Central Government all the data relating to it. The requirement specified in the clause is of seamless monitoring of at least 210 simultaneous calls for seven security agencies. Along with that, the following data is also required to be maintained:

1. i) Mobile numbers/PSTN numbers of both the parties (the caller and the receiver)
2. ii) Time, date and duration of interception

iii) Location (alongwith Cell ID) of the target subscribers

1. iv) Telephone numbers in case call-forwarding is active on the number
2. v) Data records of failed call attempts

vi)CDR of roaming subscriber

The companies are also required to provide, as is mentioned in Clause 41.20 (x), the exact geographical location (BTS location) of the user of the network, at any given point of time.

This information might be of use to an aggrieved party, because sometimes a service provider may refuse to supply CDR of a certain period citing it too old or irretrievable. Many people have reported their service providers to be reluctant in sharing this data citing the same reasons. In such cases, the service provider can be questioned and the license agreement can be referred to.

What Authorities can extract CDR

Initially, most law enforcement agencies could extract CDR. Some of these were:

• ACP (Additional Commissioner of Police)
• DCP (Deputy Commissioner of Police)
• CID (Crime Investigation Department)
• CBI (Central Bureau of Investigation)
• NIA (National Investigation Agency)
• ATS (Anti-terrorism Squad)
• SEBI (Securities and Exchange Board of India)
• ITD (Income Tax Department), etc.

But due to cases, especially the recent one in which BJP leader Arun Jaitley’s phone was tapped, the government has reissued guidelines regarding extraction of CDR. According to the new guidelines, no officer with rank less than that of a Police Superintendent can obtain CDR from telecom companies.

The amended guidelines essentially are:

• Firstly, as mentioned above, CDR details cannot be accessed by any officer with rank less than that of an SP.
• The concerned officer is required to make a directory of the obtained records and submit it to the District Magistrate every month.
• The DM is then required to send the details to the concerned Chief Secretary so that a state-wide record can effectively be maintained.

Accordingly, every Additional Commissioner of Police (ACP) or Deputy Commissioner of Police (DCP) of the district, the Crime Branch, Economic Wing, Special Cell, IG Airport ACP and Special Cell, Crime Branch have been authorised to obtain CDRs.

How long does the process of extracting CDR take?

Although there is no rule as to how fast the companies are supposed to give the data, as mentioned above, if the matter is urgent, that is, relating to a serious issue like a crime or a terrorist activity, and the information is demanded by a relevant authority, the information is given by telecom companies in not more than a few hours. Otherwise, it can several weeks too.

How can an individual obtain CDR

Unless the matter is in court and CDR needs to be admitted to prove one’s case, an individual cannot obtain CDR.  This needs to be specified, because a lot of people seek CDR details to spy on their spouses, children, etc. or for other personal purposes. Where CDR details are required urgently for producing as evidence, a person can approach any officer above the rank of a Police Superintendent. A step-by-step guideline is given toward the end of this write-up.

Evidentiary Value of CDR

CDR is admissible as secondary evidence in court. With developments in technology, the courts these days are more receptive of different electronic and digital data as evidence. Earlier, it was a necessary requirement for CDR to be accompanied with a certificate as prescribed under Section 65 B (4) of the Indian Evidence Act, 1872. Recently, while interpreting Section 65 B of the Act, the Supreme Court has decided that it is not mandatory to submit such a certificate in the interest of justice. Therefore, giving a second chance to people who might not be able to procure a certificate. Moreover, in case such a certificate is absolutely required by the court, it can be submitted subsequently after the filing of the charge sheet.

Step-by-Step Guidelines

1. If the call or messaging details were in your phone and have accidentally gotten deleted, you can try extracting them yourselves. There are three possible ways to do that. You can either call customer care and find out how much details can be sent to you. Or, you can visit the website and login with your mobile number and click on ‘usage’ option to find a list of all the recent calls that you made, and for what duration. In the case of Vodafone, it shows me my call log of nearly the past 15 days. Thirdly, you can visit the nearest outlet of your network provider and submit a written application with a valid ID proof. I have not verified with my service provider, but it has worked for some people.
2. In case the record you want to find out is older than that, and it is important and urgent for your case to extract these, you can file an application in the court, requesting the court to ask the concerned Police Station to further order the Network Service Provider to provide the details.

You can use this format of CDR preservation application for your client:

—————————————————————————–

           IN THE COURT OF [NAME OF JUDGE], [PLACE]

IN THE MATTER OF

[Name of Complainant]                                          …COMPLAINANT

VERSUS

[Name of Respondent]                                          …RESPONDENT

APPLICATION U/S 91 CR.P.C. ON BEHALF OF RESPONDENT NO. 1 FOR SEEKING THE DIRECTION TO [Name and address of the Telecom Company] TO PRESENT AND PROVIDE THE CALL DETAILS BOTH INCOMING AND OUTGOING [And any other information, as required] OF THE COMPLAINANT FOR THE PERIOD [Mention period here] IN RESPECT OF MOBILE NUMBER [Mention mobile number here]

MOST RESPECTFULLY SHOWETH,

1. That the Complainant’s case [Name of the Case] against the Respondent is based on absolutely false allegations and the present case is pending before this Hon’ble Court and the same is fixed for [Mention the upcoming date of hearing].

2. That the Respondent used to receive calls from [mention number] during the period [Mention period]

3. That the Respondent has strong apprehension and reason to believe that the Complainant is trying to ruin his and his family’s life and peace.

4. That the Respondent has strong apprehension and reason to believe that the Complainant has filed a false case against him in this Hon’ble Court.

5. That the preservation of data of the aforesaid mobile number [Mention Mobile number] is essential and desirable in deciding the matter in issue between the parties effectively, and for a just, fair and equitable decision, and the preservation of this data will prove beyond reasonable doubt that the Complainant has inflicted harm on the Respondent by making calls and ruining the matrimonial life of the Respondent and the preservation of this data will also disclose the actual name, address and other crucial details of the user of the aforementioned mobile number [Mention mobile number].

6. That the preservation of the Call Detail Records will give the details of the incoming and outgoing calls, the frequency of calls, the exact location of the person making incessant phone calls on the mobile number of the Respondent.

7. That according to TRAI Guidelines and UASP License, the telecom companies are required to preserve the data of the past six months of the subscriber, and the period of calls [mention period] received by the Respondent lie in that period.

8. That the Call Detail Records are a material piece of evidence and will help the Respondent bring the conduct of the Respondent before this Hon’ble Court.

9. That if the present application is rejected, it will cause grave injustice to the Respondent, though the data is readily available and is in the custody of the telecom company, and the principle of natural justice also demands that the telecom company provide the data that is asked for, for producing in this Hon’ble court.

10. That there is no alternative and efficacious remedy to this except for moving the present application.

11. That this Hon’ble court has the jurisdiction to try, entertain and adjudicate upon the present matter.

It is, therefore, most respectfully prays that this Hon’ble court may kindly be pleased to:

1. Direct the telecom service provider [Name and address of the telecom] To preserve the call details, both incoming and outgoing details of the complainant for the period [mention period] of the mobile bearing no. [mention number] and to place the same on judicial record.
2. Direct the SP, P.S. [Write the name of the P.S. in whose jurisdiction the case comes] to take the Call Detail Record of the aforementioned mobile number [Mention mobile number] for the period [Mention period].
3. Or pass any other order which the Hon’ble court deems fit in the interest of justice, equity, and good conscience.

[Name of the city]                                                Respondent

[Date]                   Through                                                                                                                                        ADVOCATE

In case of any additional information, clarifications or corrections, drop me a mail on mirzawardahbeg@gmail.com

The post Extracting Call Data Records appeared first on iPleaders.

This article is written by Kaushika, here she discusses the rationale behind fugitive economic offenders Act, 2018

Introduction

The base of any country’s development is its industrial growth, which necessitates huge investments from banks and the financial sector. Howsoever in recent times, there has been a shift from general welfare to individual or family welfare wherein which the bigshots entrepreneurs subsequent to indulging in scam abscond from our country to foreign countries to avoid legal process.T his shift leads to mounting of NPA’s and shake the financial stability  of the country and trusts of the common people . The laws in existence are incapable of effectively resolving this situation. Thus in this high time, Government of India passed Fugitive economic offenders act, 2018, to remedy this evil and the agitation of the common man, besides to uphold investor’s trusts and well-being of the country’s economy.

The objective of this act is to deter fugitive economic offenders who evade legal process in the country, thus to preserve the sanctity of the rule of law and make them subject to Indian Jurisdiction. The act defines fugitive economic offender as a person against whom an arrest warrant has been issued by the special court against a scheduled offence who has left India to avoid criminal prosecution or refuses to return India to face criminal prosecution.

Procedure for Reinstating Rule of Law

For confiscating the properties of a defaulter, an application has to be filed, by director to the special court for declaring an individual to be a fugitive economic offender, stating the reasons for claiming a person to be economic offender; further promulgating the properties or benami properties which he believed to be the proceeds of the crime, in India and outside India. Besides, this act permits provisional attachment of property of the alleged individual by the director either with the prior permission of the special court or attachment of the property can be done prior to filing of application if the director foresee the property will become inappropriable for confiscation in future, howsoever within 30 days of provisional attachment they have to file  an application under section 4.The special court on receiving application, sends notice to individual to appear on specified place and date, further mentioning failure to appear will lead to the declaration of concerned individual   as a fugitive economic offender.  An individual on receiving notice from special court either have to appear in person or through legal counsel. If the individual neglects or fails to appear, the special court on being satisfied and for reasons to be recorded in writing may declare an individual as a fugitive economic offender. On being so declared the properties of the offender in India and abroad stands liable to get confiscated.

Howsoever the act raised a huge cry for passing the test of constitutionality.

Withstanding the constitutionality test

Right to a fair trial being a fundamental norm in every democratic country and international human rights law forbids conviction of an individual violating Audi alteram partem. It finds its base in article 10 of UDHR – “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charge against him. Further in article 14 of ICCPR. In Indian arena this right is strongly imbibed in article 21 of Indian constitution and section 243 of Cr.P.C, which affirms awarding opportunity to alleged individual to defend his case .This act is widely denounced for not in consonance with this norm by drafting section 5(2), section 10(3)(b), section 14.

Section 5(2) is contended to be arbitrary as it stands against the basic doctrine of criminal jurisprudence “presumption of innocence” and “proven beyond reasonable doubt” as it enables the appropriate authorities to search, seize and confiscate the property before commencement of any proceedings on mere suspicion. Rebutting the allegation, it is held the pre-trial attachment is in line with article 54(1) (c) of United Nation Convention against corruption, which was ratified by India in 2011. Further allegation raised regarding fear of abuse of power by authorities.T he Apex court in Mafatlal Industries Ltd v Union Of India, propounded mere possibility of abuse of power is not a prima facie ground to strike down the provision as unconstitutional, in addition, held such order of the concerned authority may be set aside. Further, in J.Sekar and ors v UOI , Delhi H.C upheld the constitutionality of the second proviso of s.5(1) of Prevention of Money Laundering Act which is akin to section 5(2) of the said Act.

Section 10(3) (b) is contested for asserting mere failure to appear on the specified place and time shall result in a declaration of the individual as a fugitive economic offender and confiscation of property under this Act, thus paves the way for ex-parte order. Howsoever this claim can be set aside by professing sufficient time and opportunity is awarded by the special court under section 11(2).

Section 12(2)(b) stands the test of intelligible differentia and rational nexus, thus saved from falling under the ambit of unconstitutionality as the act made a clear distinction between fugitive economic offenders and economic offenders whereby the former evade the rule of law by fleeing to other countries and staying abroad. Further taking of proceeds in excess of claim is justified as it has rational nexus with the object of the act – to deter evading persons from the process of law and subject him to India jurisdiction and to restore the rule of law in India. This rational nexus has the effect of saving from unconstitutionality, some other provisions of the Act including the attachment of properties upon suspicion of them being siphoned off under Section 5.

Section 14 grants discretion to any civil court or tribunal from disallowing fugitive economic offender from contesting –filing or defending any claim or proceeding before it. This bar finds application upon all civil claims, including civil proceedings which have no nexus with the offence in. Further bars LLP or company with which the fugitive offender is connected from proceeding the claim. Thus violated individual’s right to access to justice, leads to ex-parte orders, besides there is no rationale in such measure. Despite, access to justice prima-facie finds no place in part III of the constitution. It is embraced under article 21 by way of judicial activism in Anita Kushwaha vs. Pushap Sudan. Wherein which it becomes a fundamental right. Thus it is contested that section 14 of the said act violates article 21of Indian constitution which is given wide amplitude since passing of Maneka Gandhi case. The Apex court in Justice K S Puttaswamy (Retd.) and Anr. Vs. Union of India and Ors enunciated that while adjudging constitutionality under Article 21, the court must have the view of the reasonable restriction, upon these rights, imposed in pursuance of compelling social, moral, state and public interest. This act intends to remedy the effect of social injustice the fugitive economic offenders have caused. Thus  individual justice, right, liberty have to pay the way for social justice. Accordingly, the act withstands the test of Constitutionality under Article 21 of the Constitution in view of the compelling state and public interest furthered by this law.

Pitfalls in the act that need to be addressed

Regardless of the fact, the said act provides a statutory duration of  90 days for disposal of confiscated property from the date of declaration as a fugitive economic offender, it stands still with respect to the duration of proceedings and finalization of the decision of the special court. This ambiguity let courts consume enormous time. For confiscating properties of the fugitive economic offenders abroad the government should send a letter of request to the foreign contracting states for execution of the order, howsoever at present, the Indian government has not entered into the contract with all states. The threshold of 100 crores can be widely misused by committing multiple small amounts of economic offence. Further, the act is vague regarding the manner of utilization of sale proceeds after confiscation by the central government. The above-said obscurity will let wrongdoer find the loophole for evading the provisions of the act.

Howsoever this non-conviction based asset confiscation Act 2018, acts deterrent to the future economic offender and holds accountable the past economic offender, thus serving or protecting the interests of investors, general public, enhancing the financial stability of financial institutions and cure the general agitation. The Act represents an efficacious venture to curb the scams and economic offences that have an adverse impact on the Indian economy and development. The rationale of the act is to subject the individual to Indian jurisdiction and not adjudicate upon or penalize the offender, thus the act has to be perceived in this perspective. Thus the act stands the test of constitutionality, the words of Piyush Goyal, the central Minister on introducing the bill in the parliament “The bill is an effective, expeditious and constitutional way to stop these offenders from running away” stands justified. The first person to be charged under the new fugitive act is Mr.Vijay Mallaya, the liquor baron by the special court of Mumbai, this warrant Indian government to confiscate his properties for alleged 90000crore default, thus setting the act in right motion.

The post Rationale behind Fugitive Economic offenders Act, 2018 appeared first on iPleaders.

This article is written by Krishnendra Joshi, Research Associate, LawSikho.

I came across an interview on ‘Above The Law’ blog wherein Halen Van spoke about quitting her law firm job to write her first novel – The Partner Track.

There came my eureka moment. I started surfing the net about alternate career opportunities law grads have with a law degree.

After all, not everyone is comfortable slogging it out in law firms.

If you are an aspiring first-generation lawyer, chances are that you may find the court environment daunting.

I remember once a distant uncle telling me litigation is not for the faint-hearted. People’s hair turns grey while building a law practice. Needless to say, this uncle of mine belongs to the category of relatives who will seldom call other than to ask about my grades.

When I was in my final year, my family was charmed by the story of another distant relative’s son cracking the civil services exam. I almost got coaxed into taking a year off to prepare for civil services.

My parents felt civil services is easier to crack if you have a law background. My mother belongs to Bengal so she even made a reference to how Subhash Chandra Bose cracked it at the age of 21.

However, I luckily did not fall into that trap.

Somehow, the mainstream career options never excited me as much. In law school, while some students were genuinely passionate about joining law firms, I found others mostly clueless and following the herd for the sake of it.

In my spare time, I found myself googling on career opportunities for law students that graduates from top law schools are not looking at. I would read superlawyer interviews about unconventional careers. So did I find my sweet spot? Yes, kind of…

Read on…

Professor /Academics

While you may argue that Academics as a career choice is not as lucrative as a law firm job or an in house position, it has its merits too.

There is a dearth of good law professors in the country.

Making a career in academics is a question of your temperament, I would say. If you love reading, writing, researching, academics can be a career option for you. Look at it this way, in law firms, you have to make your client understand the legal issues involved in a particular problem. On the other hand, in teaching and academics, you have to teach law students.

If you are good at your job, you will enjoy a tremendous fan following amongst students. More than that, the satisfaction you will derive by shaping careers is unparalleled.

Law teachers get paid fairly well, and there are thousands of new positions opening up as tons of new law colleges are opening up every year.

Blogging & Content Writer

I was once a part of a yoga retreat in the Himalayas. On weekends, I used to see a batchmate of mine giving consultancy to his clients sitting in China. I envied him. I would often tell him jokingly that I will get a cooler job than you.

I often dreamt of working from a quaint little coffee shop in the Himalayas on a laptop. As luck would have it, I enrolled myself in the 3-month offline dream job boot camp at LawSikho.com. This ended with me bagging a job in the marketing team of LawSikho. It helped me to hone my writing and research skills. Although I am still a work-in-progress yes, the dream of working from anywhere and any time is fulfilled.

Blogging and content writing is really picking up. People and businesses are relying on the internet to find their lawyers. Online presence of lawyers and law firms is very critical these days, and there are lawyers who specialize in that work.

Almost all law firms have been hiring content writers with legal qualifications in business development or communications positions. Law firm marketing is now a real profession. You could even work for one of the many Indian or global legal content or media companies.

Global legal content companies are hiring Indian lawyers to write content or compile databases for them too, and it could be a lucrative work from home job.

JAG Officer

Does olive green attract you? Are you guided by a sense of responsibility towards the nation? Many law grads are unaware of joining the armed forces as an assistant JAG officer. JAG officers play an advisory role in the Indian Army. They are the legal advisors to our commanders in military, discipline and other allied matters. They do not engage in actual combat though.

It is needless to go gaga about the perks and privileges of serving the nation in the capacity of an officer in the armed forces. The pride and respect you will command from your peers, friends, family and aam janta is second to none.

Internet Freelancers

The Internet has made possible for lawyers to find work online. Like blogging and content writing, you can do solid legal work from remote locations, draft contracts, provide consultation and even legal advice on phone sessions. There are websites like Upwork that lists assignments freelance assignments for lawyers too.

You could even get a lot of work from busy lawyers who can use a bit of help. A lot of legal outsourcing work is up for grabs if your network of lawyers is good.

YouTuber

Today, visual content is the king. Many professionals and law graduates have quit their cozy corporate jobs to become Youtubers. And it works for quite a lot of them.

There is tremendous opportunity in taking the law to the common people. There are a lot of YouTube channels on law that attract millions of views. If you are good, you could enjoy a wide reach and a semi-celebrity status.

Corporate Trainer

Do you love collaborating with people? How about a job which has elements of teaching and skill development at its core.

As a corporate trainer, you can venture into training and capacity building of employees.

Training can involve imparting knowledge about business systems. Your work might also involve taking orientation sessions in case the employees need to acquainted with new employment law. Good law graduates with top-notch communication skills can also train employees to enhance their soft skills.

Corporate trainers are really just teachers. Your public speaking and leadership skills go a long way in determining your success as a corporate trainer. A lawyer who has sound business acumen, legal knowledge and interest in the learning process can thrive as a corporate trainer.

The larger point being made…

The world is changing and a lot of new opportunities exist for lawyers. You can find something that you really love. Be open to looking beyond the obvious choices.

Try out a LawSikho course if you have the opportunity. It would not only help with developing new and important legal skills but also open up your mind to the new developments in the legal industry and opportunities that are arising from these trends.

Lastly, if you keep learning, train continuously, move towards your goals with relentless passion, have a good support system, you will be awesome at your work and pretty chilled out too, no matter what exactly you do.

I know many litigators and law firms lawyers who are very, very chilled out as well.

Do check out the courses here:

• Diploma in Companies Act, Corporate Governance and SEBI Regulations | Fee: INR 23,600 | Last date of enrolment: 31st March, 2019 | Course Duration: 1 Year | Seats: 20 | To enroll: click here.

Executive Certificate Courses

• Certificate Course in Real Estate Laws | Fee: INR 10,000 | Last date of enrolment: 31st March, 2019 | Course Duration: 3 months | Seats: 20 | To enroll: click here.

• Certificate Course in Arbitration: Strategy, Procedure and Drafting | Fee: INR 10,000 | Last date of enrolment: 31st March, 2019 | Course Duration: 3 Months | Seats: 20 | To enroll: click here.

Test Preparation

• Judgment Writing and Drafting Course for Judicial Services | Fee: INR 9,900 | Course Duration: 2 Months | To enroll: click here. 

The post 5 chilled out jobs for lawyers appeared first on iPleaders.

This article is written by Jyoti Choudhary, pursuing Diploma in Advanced Contract Drafting, Negotiation and dispute resolution , from Lawsikho. She is a legal associate at John Deere India pvt ltd.

Introduction

The world economy is running through the transactions and trading occurring by modes of oceans, air, railways, and freight.

These transactions shall be done in compliance with rules and regulations laid down by the authorized regulatory in the world. Every company involved international trading has to be sure that they have highly complied are with these regulatory.

More particularly, the shipping industries follow the rules and regulations passed by the International Maritime Organisation (IMO) and laws of respective countries, whilst performing any International transaction through maritime.

The Shipping Industry is the oldest industry in existence and hence, becomes the crucial part of the world economy. In earlier days all the trading, transactions, travelling and transportations were mostly achieved through shipping. There is no denial that it plays a vital role in present economy also.

It is found that Greece and Japan own two largest ships by capacity and China now owns the large numbers of ships.

What is the shipping industry?

International trading usually happens via four major modes of transportations. Shipping Industries being part of the transportation have a vital role to play in the growth of the world economy. Shipping Industry provides facilities of transportation of goods and commodities to domestic and global companies to enter into transaction i.e., sale and purchase and trading. It also provides domestic and international delivery facilities directly to customers.

In recent times, direct customer demands have been raised by electronic commerce businesses. E-commerce is the activity of sale and purchase on the internet. The potential e-commerce companies like Amazon, ebay and many more, providing international trading facilities for customers and seller or importer and exporter, whereby expanding the business of shipping.

How shipping business is significant to Indian Economy?

Like any other country in the world, the shipping Industry has a huge impact on the development of the Indian economy as well. In India, a major part of trading and transportation of goods and commodities is done through shipping.

As per the records, India has 12 major and 200 notified minor and intermediate ports.

As per IBEF, shipping sector in India is mostly involved in external trade. In the financial year 2018, charges of the biggest ports have reached 679.36 million tones and other ports have received the highest growth.

The growth of shipping industry is so prominent that the Government of India is now working on developing policy for shipping by targeting to establish port with capacity of 3200 MMT by 2020.

The Government is also planning to execute the National Maritime Development Programme with a budget of US$ 11.8 billion.

The shipping sector is playing vital role in sustaining growth of India’s trade and commerce.

Further, the Ministry of India has declared to do a massive investment in ports and roads sectors, which aiming at more development of Indian Economy. Also, there are plans to develop 10 coastal economic regions as part of plans to promote country’s Sagarmala project.

What are the regulatory frameworks involved in the shipping business?

Since independence in 1947, shipping industry has played a vital part in the growth of Indian economy. Every big industry comes with their own set of risk and drawbacks which might result in more loss than good to the country. Thus, industry is managed and regulated by Ministry of Shipping and mainly governed by the following Acts:

The Merchant Shipping Act, 1958

The Inland Vessels Act, 1917

The Coasting Vessels Act, 1838

The Multi-modal Transportation of Goods Act, 1993

The Indian Ports Act, 1908  

The Dock Workers (Regulation of Employment) Act, 1948

The Major Ports Trust Act, 1963

The Seamen’s Provident Fund Act, 1966

The Inland Waterways Authority of India Act, 1985

Apart from these agreements, shipping industry is also regulated by the rules and regulations framed by International Maritime Organization (IMO).

What are the 10 most important contracts in the shipping industry?

The shipping industry has a significant role in the development of the economy. The shipping businesses are carried out on cargo ships, container ships, bulk carriers and tankers. For a smooth transition of the business, companies need to be complied with rules and regulations and shall ensure that trading are under the purview of law and not involved in act which is forbidden by the law.

Here, the parties can approach to the attorney, to negotiate and draft agreements in manner that it will serve the purpose of the parties and have legal binding. These are the shipping contracts.

The following are the top 10 important contracts in the shipping industry:

1) Ship or Vessel Sale and Purchase Agreements

The sale and purchase of ship or vessel is one of the important tasks in the shipping industry.

A Ship or Vessel sale and purchase agreements are entering between the seller and buyer of ship or vessel.

To perform such a kind of transactions the parties need to have huge capital, knowledge of a particular kind of ship, legal knowledge and negotiation skills.

In order to minimize the future disputes and have smooth transaction, the parties need to negotiate every term relating to Ship Sale and Purchase Agreement. This means having number of conversations between the parties before finalizing the contracts’ clauses.

The agreement should discuss important clauses like protection of buyer and seller, obligations of buyer and seller, payment terms, termination clause and what are the remedies are provided to buyer and seller in case of breach. Through numerous communications during negotiation process, the parties can finalize the pricing and terms of the contract for sale and purchase of ship.

2) Transportation Services Agreements or Logistic Services Agreement

Transportation Services Agreements are entering between the goods provider and those who offer transportation for those goods. In these types of agreement, the goods provider will agree to pay some amount to the service provider and in return, the service provider will agree to deliver the goods to the vendors or distributors or customers. This agreement the parties shall agree on the delivery date and time, quality standards, obligations of each parties, rights of the parties, terminations and compensation in case of breach. The parties shall also discuss the insurance clause. What will happen if shipped goods get destroyed in the event of force majeure? What are the consequences for delay in delivery of goods because of the event which is uncontrollable? In case of breach of contract, what is the agreed compensation? Who will stand responsible for making good to the loss occurred to the other party?

3) Ship Management Agreements

When the parties enter into a contract to supply the goods and commodities through maritime, they also think about managing the ship for such transactions.

In earlier days, the shipowners used to look at several functions like financial management of vessel, employment of personnel, maintaining the vessel, technical supervision, operation etc. But now, the shipowners usually hire resources to manage the operations carried on ship while supplying goods.

A ship may cost as much as cost of buying a factory. Thus, it is always better to employ professionals to manage the operations of the ship.

Thus, shipowners nowadays delegated their functions in various areas to ship management companies, chartering companies etc.

When ship manager enters into contract with a third party for purchase of goods or services and transport, become obligated as contracting party towards third party.

4) Vessel Lease Agreement or Ship Charter Agreement

A lease agreement is between the shipowner and lessee or charterer. Under this agreement charter party put the vessel on rent, either in full or part, for stipulated period of time.

The terms of this agreement are formed on the basis of shipowner, charterer and the market. The parties will also comply with the laws applicable to the transaction to keep the trading from any legal interference.

There are two types of charter viz., time charter parties and voyage charter parties. In case of voyage charter, the parties can make their own terms of the contract and if possible, make changes in the standard terms to be align with the requirement of the parties and same should be accepted by them.

In time charter, the vessel can be on lease for specified period of time and the time which have been agreed by both the parties. In this kind the charterer controls the ship’s commercial activities. Thus, the terms of contract should explain about fuel consumption, loading capacity, speed of the ship and most importantly the time for usage of the ship should be mention clearly in the agreement.

5) Import and Export Contracts

Import and export contract is a contract between importer and exporter of various countries for selling and purchasing of goods and commodities. The contract is useful for the international trading of certain products like industrial supplies, raw supplies, manufactured goods or e-commerce delivery. These contracts will include the requirements such as quantity order, price per unit, delivery conditions, payment terms, documents and retention of title, etc.

6) Contract of Affreightment

A contract of affreightment is a contract between a ship owner and another person whereby agreeing to transport the goods in a stipulated period of time.

This contract is popular with small coasters employed in short voyages and it is cost effective also.

Contracts of Affreightment are also used by government authorities for international trading.

7) Marine Insurance Contracts

Since ages merchants are engaged in maritime commerce ways to minimize the impact of threats of their trade presented by natural and man-made perils.

Marine insurance covers the loss or damages of ships, cargo, terminals, and other transport by which goods and commodities are transferred, acquired, or held between the points of origin till delivery point.

This is important to protect parties’ goods from any damages or an event which is uncontrollable.

A contract of marine insurance is a contract whereby insurer agrees to compensate or indemnify the aggrieved party against marine losses or damages.

A marine insurance contract shall include elements like features of general contracts, insurable interest, utmost good faith, indemnity, subrogation, warranties, proximate cause, assignment and nomination of the policy and return of premium.

The proposal for marine insurance can be made by broker or insurer itself. The broker can prepare slip wherein all material information is recorded.

8) Seafarer’s Employment Contracts

Seafarer’s employment contracts gained importance since the enforcement of the Maritime Labour Convention (MLC). MLC mandates the shipowner/employer to have written employment agreements with all seafarers working on seagoing ships. The payment of wages of seafarers shall match the standards formed by MLC.

The agreement must be signed by both the parties i.e., the seafarer and the employer/shipowner.

9) Collective Bargaining Agreement

A Collective Bargaining Agreement is an agreement which is made between an employer and a trade union whereby agreeing on terms and obligations of employment relating to rates of pay, hours of work and other conditions of crew employed on the ship.

10) Freight Forwarding Agreements

Freight Forwarding is a service used by companies engaged in import and export of goods. It provides guarantee that the goods will get delivered to proper destination and maintain good condition.

For this purpose, companies enter into an agreement with Freight Forwarder. A Freight Forwarder is a commission agent performing on behalf of the importer and exporter, in activities like loading and unloading, storage of goods, maintaining quality of goods, arranging local transport, collecting payment from customers, etc. In simple words, a freight forwarder will provide services which cover the total transportation and distribution process.

A freight forwarding agreement shall include rights and obligations of the parties, standard quality norms, terms relating to import and export of goods to customers, delivery terms, modes of payment, terminations, indemnity, etc.

What are the risk factors in the shipping industry?

Every industry has their own risk factors, shipping industry is no different. There are numerous factors that must be considered while trading in shipping industry,  which are delivery time, safety of the crew members, etc.

Other major factors are rapid changes in technology, cyber security, technical uncertainty etc.

Conclusion

The Shipping Industry has been in existence for decades. The industry contributes 90% in the development of the world economy. Hence, it is important to understand the consequence of mismanagement of shipping contracts. If not taken care of properly it can cause holdups and delays occurring throughout the process. Therefore, it is essential to properly negotiate the terms and obligations of the parties before signing the contract. Abovementioned are 10 important contracts one must come across when dealing with shipping industry.

 Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.                    

The post 10 Most Important Contracts in the Shipping Business appeared first on iPleaders.

This article is written by Ramanuj Mukherjee, CEO, LawSikho.

Today is the First day of the new financial year. The ides of March is over. Now is the time for powerfully beginning an amazing financial new year.

If the New Year that starts on 1st January is for personal growth and reflections, 1st April, the beginning of the financial new year is for financial growth and thinking about your investments and wealth strategy.

Do you have one in place?

How are you going to increase your income?

If you are young and have not begun earning yet, how will you get started?

Where are you going to invest for long term growth?

My suggestion to you would be to always invest in your skills, personal brand and in other such long term assets.

Recently a friend who is quitting a big law firm job asked me for ideas as to what she can do next. I asked her, how would it be if you did nothing else for a year and just focussed on your personal brand as a lawyer? What kind of return could that provide over the years?

What if you invested a few hours every week for a year towards learning a very valuable skill?

What do you think? I encourage you to share your ideas in the comments. What skills would you like to learn?

I would like to launch those courses in this new financial year.

For now, here are some amazing courses Starting in April:

Diploma:

Diploma in Intellectual Property, Media and Entertainment Laws

Diploma in Cyber Law, Fintech Regulations and Technology Contracts

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution

Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions)

Diploma in Entrepreneurship Administration and Business Laws

Executive certificate course:

Certificate in Labour, Employment and Industrial Laws for HR Managers

Certificate Course in Companies Act

Certificate Course in Insolvency and Bankruptcy Code

Certificate Course in Advanced Corporate Taxation

Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting

Test Preparation

• Judgment Writing and Drafting Course for Judicial Services 

The post First day, Make the first move towards Personal Growth: Invest in yourself appeared first on iPleaders.

This article is written by Jagdish S. Kaisare, pursuing a Diploma in Entrepreneurship Administration and Business Laws, from Lawsikho. He is a fourth-year law student at Alliance School of Law, Alliance University | batch of 2020 | BBA, LLB,  and also a legal intern at Legal Minds LLP since January 2018.

What is Amazon?

Amazon has grown from a mere startup to full-fledged multi-billion dollar online-retailer company. Their innovative business model is fascinating and worth studying. Jeff Bezos began his entrepreneurial journey by launching an online bookstore in 1994 by the brand name “Amazon”. With time, it expanded to an “everything store”. Amazon’s unique selling point is its offering – widest range of high-quality goods and services at low prices! It’s business model is a tech-retail that delivers high-value proposition via its mixture of offerings. Its companies comprise of its online market platform that offers everything from a-z, online video content streaming platform, e-reading platform, podcast platform, cloud infrastructure, and brick and mortar stores. Amazon’s success is defined by its customer experience, vast range, low price, convenience, prompt delivery, and technology infrastructure.   

Amazon’s revenue is the dynamic and great amount of its revenue is derived from fees and commissions from its sellers, affiliate program, advertising, kindle and amazon prime subscriptions. Amazon’s business model is not labour intensive, and, is thus, highly scalable. It’s business model facilitated its vision of being a multi-national giant.  With the thriving technological advancements, Amazon only seems to grow rapidly.  

Amazon’s entry into India

Despite being an acquisitive company by the approach, in 2013, Amazon decided to organically enter the nascent e-commerce Indian market, with the launch of their website. They relied on the data they acquired from junglee.com, a price aggregator venture launched in 2012. Amazon began their innings by offering only books and movies. Within few weeks, they ventured into electronics and as of 2019, they offer everything from A-Z. Amazon’s business model involved “third party” retailers who would offer their products on the Amazon marketplace platform. Upon an order, these retailers would transport their goods to Amazon’s warehouses where the goods were packaged and dispatched. They, however, faced endless challenges like understanding the intricacies of operating in the Indian markets and economy, handling logistics, understanding buyer psychology and the approach of Indians towards online transactions. Furthermore, India’s FDI policy prohibited multi-brand retailers from online selling. Thus, Amazon was prohibited from stocking and selling on its own. 

Amazon’s Business Structure in India prior to the FDI Norms.

Amazon India focused on 8 modules to expand, set-up and dominate the Indian Market. Amazon’s understanding of the market saw an opportunity to target the middle, upper-middle and upper class of the society. They mainly focused on the “busy” Indian and offered a massive platform, amazon.in, that offered the consumer a wide range of goods, and its door-step delivery. In remote areas, they set up facilitation centres, and in urban areas, by its door-step delivery and massive discounts, Amazon offered great value to the consumers. To gain competitive advantage, Amazon acquired many Information Technology and e-commerce startups at low costs and used the data collected to offer customized deals to the consumers. Amazon’s strategy to enter the Indian market involved offering a wide range of goods and services at low prices. 

How was the Amazon India Business Model different to that of the United States?

In the United States of America, Amazon’s business model is that of an inventory based, wherein, the inventory of goods and services is owned by Amazon and is sold to the customers directly. However, the Indian laws are different, and thus, posed a challenge to Amazon.

India’s FDI policy does not permit foreign direct investment in inventory based model of e-commerce business. Therefore, to abide by the Indian laws, Amazon had to shift from an inventory based model to marketplace model. The FDI rules allow 100% foreign direct investment via the automatic route in a marketplace model of e-commerce. The exceptions to this law are that a manufacturer is permitted to sell its products in India via e-commerce retail. Also, a single brand retail business operating through brick and mortar stores is permitted to sell via e-commerce.

Amazon being a multi-brand platform, and a foreign entity, had to face a challenge. Therefore, to comply with the laws, Amazon had to act as a mere facilitator between buyers and sellers, and adapt to a marketplace model of e-commerce.  

Amazon India also faced many other challenges. Among others, the lack of “plastic money” use in India, governments stringent FDI norms, logistics, and delivery. Amazon overcame these challenges innovatively. They launched “cash on delivery”, tied up with local suppliers, courier services,  set up fulfillment centres, etc. Their innovation delivered an effective solution, thus, enabling an ecosystem of business. In my opinion, Amazon’s efforts are absolutely commendable! 

How did Amazon innovate to work around the laws?

Amazon entered into a joint venture with Catamaran Ventures, to launch an entity named “Cloudtail India Pvt. Ltd”. Cloudtail is categorized as an “independent seller”  and is the most dominant sellers on Amazon.in. With this, Amazon successfully mixed their business model with marketplace and inventory. This enabled Amazon to expand its sales while maintaining customer indulgence. Cloudtail has expanded exponentially and acted as a growth driver for Amazon India. Consequently, Amazon stopped abiding by the “guaranteed returns” that it promised to the other third-party sellers.  Likewise, Amazon has also entered into joint ventures with Patni Group, to launch an entity named “Appario Retail”.

Cloudtail contributed the majority of Amazon India’s sales, until, in 2016, the FDI ruled caped the single seller contribution to 25% of the marketplace’s overall business. Thereafter, Cloudtail requested other sellers to list their offerings via its platform, so that they could ensure product availability, faster deliveries, and enhanced customer experience.

FDI Policy 2019

The new rule inserted in the policy prohibits an entity related to the e-commerce marketplace entity, directly or indirectly, by way of equity participation, from selling on that e-commerce marketplace platform. It also prohibits the e-commerce marketplace from sources more than 25% from a particular seller. To strictly interpret this rule with regard to Amazon, Cloudtail would be prohibited from selling on Amazon, because of Amazon’s equity participation in Cloudtail.

Another rule inserted provides that, services like fulfilment, logistics, warehousing, etc., have to be provided to all vendors in a fair and non-discriminatory manner. Further, for related party entities, at arm’s length. The rules also bar exclusivity. 

These rules created havoc for the e-commerce platform and endangered its brands like “Amazon Basics”, “Amazon Echo” etc.  In my opinion, the sole purpose of these amendments was to ensure that the marketplaces are impartial and prices are uninfluenced. The policy aims to create a level playing field, protect the highly unorganized brick and mortal retail sector and generate benefits to the buyers, sellers and the entire e-commerce ecosystem. It also aims to rectify the pricing policies and treat brick and mortar retailers at par. To overcome the hurdles of these regulations, Amazon might have to divest/offload its shares to a completely unrelated entity.

What did Amazon do?

As a result of evaluating and complying with the new FDI Rules, Amazon initially took down the listing of numerous of products, like the amazon basics products, amazon echo speakers, products listed by Cloudtail, Shopper Stop, Appario retail, from its website. They also temporarily pulled the plug on its grocery retailing, and pantry services.

As per the RBI notification, for an entity to be a group company, it has to directly or indirectly, exercise 26% or more voting rights.

Thus, Cloudtail restructured its ownership. In order to comply with the norms, Amazon had to divest some of its equity from Cloudtail. Accordingly, Catamaran Ventures increased its stakes in Cloudtail to 76% from 51% and Amazon’s stakes decreased from 49% to 24%. Thus, Cloudtail ceased to be an Amazon Group Company, and therefore, became eligible to list its products and offering on Amazon.in. As per reports, cloudtail has plans to list on other online market places as well. It would only be logical for Amazon to divest its equity holding in other related entities like Appario, etc.  

Further, as per reports, Amazon has reduced its commission charges to attract more independent sellers to list on their platform. They also intend to introduce rating based commission system. With this, they aim to create a team of sellers in line of Cloudtail and Appario retail, in order to comply with the 25% cap.  

Conclusion 

Despite these developments in the FDI norms, Amazon have been innovative in their approach, and have returned to the battlefield with Cloudtail as its vendor, Pantry services, Amazon Pay Unified Payments Interface (UPI).

As far as the new regulations are concerned, it should be a welcoming move. In my opinion, the rules ought to be more specific with regard to what the e-commerce marketplace entity can do and cannot do. We have previously observed big corporations comply with the mandate of the law despite exploiting the ambiguity in the law. Therefore, the rule out to expressly lay down the do’s and don’t, without leaving any scope for ambiguity.

What has to be taken into consideration is that India, as a market, is very unique. It is dominated by highly unorganized retailers, small traders, brick and mortar traders, mom and pop stores. As a result of the actions of the big giants, this trader community was allegedly, greatly aggrieved. Further, the other third-party retailers listing on Amazon were allegedly enraged with the preferential treatment that Cloudtail, Appario, and other Amazon related entities received.

With these new norms, we can hope for a more level playing field, robust and genuine e-commerce sector.  Amazon would have to rework their strategies and perhaps face competitions from physical retailers like Big Bazaar, Croma. Amazon would also be challenged by its e-counterparts like Tata Cliq, Reliance Industries Limited’s soon-to-be-launched e-commerce platform. Companies like Snapdeal and Paytm have gained from these regulations.

 Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.                    

The post Amazon and India’s FDI Policy appeared first on iPleaders.

This article is written by Mukarram Ali, pursuing Diploma in Entrepreneurship Administration and Business Laws, from Lawsikho. He is a Student of Teerthanker Mahaveer University, Moradabad.

Introduction

A “Managing Director” is somebody who is answerable for each day operations of an entity, association, or corporate division. This place is a part of the executive management of a business who is liable for day to day management of the corporation. Managing Director can be allotted in a corporate company i.e. Limited entity etc. You might have heard about this place from many sources and must have been fascinated by the influential role a Managing Director plays. However, this position has a lot of responsibilities to ejection.

According to Section 2(54) of the Companies Act, 2013, a “Managing Director” signifies a director who, by ethicalness of the articles of a company or concurrence with the company or a goals go in its general meeting, or by its Board of Directors, is depended with significant forces of the board of the undertakings of the company and incorporates a director possessing the position of managing director, by whatever name called.

At the end of the day, the Managing Director is an individual who is depended with generous forces of the executives of the issues of the company. This position falls under the meaning of “Key Managerial Personnel” under the Companies Act, 2013.

In India, the arrangement of Managing Director in a company is done as per the arrangements under section 196 of the Companies Act, 2013.

Expulsion of Managing Director by Shareholders

A company is an artificial individual, it is overseen by the Board of Directors of the Company i.e., in connection to the company, implies the aggregate body of the directors of the company. The Board may comprise of Director including autonomous director, Managing Director, Chairman, and Whole Time Director. A Managing Director can be expelled from his post and he can keep on working as the director. There are no particular grounds given in the Companies Act, 2013 under which a Managing Director can be expelled. Consequently, the choice to expel the Managing Director vests in the investors of the company.

Capacity to evacuate a Managing Director is offered on the investors of a company, as the Managing Director is liable to the investors as it were. Investors can expel a Managing Director before the expiry of his residency, aside from for the situation where a director has been designated by a council for counteractive action of persecution and fumble under section 24 of Indian Company Act, 2013 and Section 163 for proportionate portrayal.

Section 169 of the Company Act, offer capacity to investors to expel the managing director in a general meeting by conventional goals. Anyway it tends to be removed by the Memorandum of Association and Articles of Association or some other understanding of the company.

Methodology to remove a Director

The investors of a company can evacuate any director through customary goals before the expiry of his residency, aside from any director delegated by the Tribunal for avoidance of mistreatment and fumble under Section 242 and a director designated under the standard of relative portrayal under Section 163 of the Companies Act, 2013.

The privilege to evacuate a director vests in the investors of the Company and is the lawful right of the investors. Section 169 and Chapter 7 of the Companies Act, 2013 contain the arrangements identifying with evacuation of a director before his term terminates.

Procedure

1)   A Special Notice according to the provisions of Section 115 of the Companies Act, 2013 of the aim to move a goals for evacuation of the director be outfitted by number of individuals to the company somewhere around 14 days before the meeting at which it is to be moved, selective of the day on which the notice is served and the day of the meeting. (Section 169).

2)  The Company will, following the notice of the aim to move any such goals has been getting by it, give its individuals notice of the goals in an indistinguishable way from it pulls out of the meeting.

3)  In case the company isn’t in a position to pull out to every one of the individuals, it can distribute by the method for an ad in the paper having proper dissemination at the very least 7 days before the meeting.

4)   The Company must give intimation to the concerned director of the intended resolution by sending a copy of the special notice received by it, forthwith on receipt thereof. The Director shall have the right to be heard on the resolution at the meeting.

5)  The Director, who is looked to be expelled, can make a portrayal recorded as a hard copy against his evacuation and demand the Company to inform it to the Company’s individuals. Further, if the director asks for the company to advise the individuals from the company his portrayal against his expulsion and the portrayal is of sensible length and it has been gotten not very late, the company must :

1. Mention in the notice of the goals to be moved at the Annual General Meeting, the reality of the portrayal having been gotten; and
2. Send a duplicate of the portrayal to each part alongside the notice of the meeting if the portrayal has been gotten before sending the notice of the meeting or independently if the portrayal has been gotten in the wake of sending the notice of the meeting.

6)   If the portrayal couldn’t be sent to the individuals since it has gotten past the point of no return or in light of the fact that the company made default in sending it, the company must peruse out the portrayal at the Annual General Meeting, if the director expects it to do as such. Notwithstanding the abovementioned, the director can make oral portrayal at the Annual General Meeting.

7)   Thereafter hold and gather a General Meeting to examine other than different issues, if any of the accompanying issue identifying with the expulsion of director; “To pass an ordinary resolution for the removal of the Director”

8)   If the company is a listed company then it should file a carbon copy of the proceedings of the General meeting earlier than the Stock Exchange(s) where the securities of the entity are scheduled.

9)   The company likewise to document Form DIR-12 in e-structure with the Registrar of Companies inside 30 days of passing the goals alongside confirmed genuine duplicate of Special Notice got from the investors, evidence of conveyance of Special notice to the director concerned, Notice of EGM to different investors and affirmed genuine duplicate of the goals go at EGM for expulsion of the director.

10)   The Company should pay the necessary fees, as approved under the Companies (Registration Offices and Fees) Rules, 2014.

As Per section – 115 of Companies Act, 2013

•      Special notice to Company

There is a criterion, who can send the notice to the Company. Just investor/s holding at least 1% of complete casting a ballot power or holding shares on which a total aggregate of at the very least Rs. 5,00,000 has been paid up as on the date of the notice, can send uncommon notice to the Company for the expulsion of a director. The equivalent ought to be marked by the concerned investor/s.

•          Date of meeting

shareholders reserve the privilege to choose the date of the meeting. In any case, the unique notice will not be sent sooner than three months from the date of the meeting however something like 14 crisp mornings before the date of the meeting, at which the goals is to be moved.

On receipt of notice of goals to expel a director, the company will promptly send a duplicate thereof to the director concerned, and the director, regardless of whether he is an individual from the company, will be qualified for being heard on the goals at the meeting.

•         Intimation to  director

The Company shall immediately send a copy of the notice to the concerned director.

•         Reasonable opportunity of being heard

The director concerned may make portrayal recorded as a hard copy to the company and demands its warning to individuals from the company. The Director may demand to send his portrayals alongside the notice to the individuals and to be heard at the meeting. Be that as it may, the rights may not be accessible, if on the application both of the Company and of whatever another individual who professes to be oppressed.

•        Intimation by the company to all shareholders

1)   The company shall if the time permits it to do so;

1.   The company will find a way to send the notice to its individuals, no less than 7 crisp mornings before the meeting. The notice must be sent in an indistinguishable way from in the event of some other general meeting of the Company; and
2.   Send a copy of the representation to each member of the entity to whom notice of the meeting is sent.

2)   The company shall if the time not permits it to do so;

The notice will be distributed in the English language in English paper and in vernacular language in a vernacular paper, both having a wide course in the State where the enrolled office of the Company is arranged. In the meantime, the notice will likewise be posted on the site, (assuming any). In any case, it will be distributed no less than 7 crisp mornings before the meeting.

The duplicate of the portrayal need not be conveyed and the portrayal need not be perused out at the meeting if, on the application both of the company and of whatever other individuals who profess to be wrong,

The Tribunal is fulfilled that the rights given by this sub-section are being mishandled to verify unnecessary attention for the disparaging issue, and the Tribunal may arrange the company’s expenses on the application to be paid in entire or to a limited extent by the director regardless of that he isn’t involved with it.

Can a Director be eliminated by passing an ordinary resolution?

In the case “Khetan Industries Private Limited Vs. Manju Ravindra Prasad Khetan” it was held by the court that the shareholders have a right to eliminate the directors under section 284 (Corresponding of Section-169 of the Companies Act, 2013) by passing an ordinary resolution and section 284 provides an inbuilt method for the enforcement of the right and civil court has no authority to entertain the suit for elimination of director.

Also, as per a landmark judgment was given in LIC of India v Escorts Ltd. (1986) it was held that it is not essential to give reasons in the explanatory statement for the elimination of a director as desired by section 173(2) (corresponding Section-102), grounds behind this judgment given by the court was that the corporation is acting on the basis of a special notice given by the shareholder u/s 284 and it is not a resolution projected by the company.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.                    

The post How can Shareholders remove a Managing Director? appeared first on iPleaders.

This article is written by Krishnendra Joshi, Research Associate, LawSikho.

Why is it important to talk about stress management for lawyers?

Lawyers handle critical cases for their clients. Very often dignity, honour, life, property, and liberty of clients depend on the efficiency of a lawyer.

Lawyers are like surgeons in this way. One wrong move of the scalpel and the surgeon can end up killing, maiming or irreparably harming the patient. Lawyers are also in a very similar position.

Because of one mistake of a lawyer, someone can go to jail, or lose money or property, or a criminal who deserves to go to jail may be released on the road free to commit more crimes.

Lawyers are under massive performance pressure all the time, that comes with the job.

However, lawyers are not superhuman, they are pretty much made of flesh and blood and nerves. Isn’t it very surprising therefore that lawyers are not taught how to handle this massive mountain of pressure that they carry on their shoulders every single day?

The military is trained on how to handle high pressure situations. Cricketers have psychologists and coaches who work with them to ensure that they can perform well in high pressure situations.

Perhaps it is time to think if lawyers also need the same.

Is there any reliable statistics available about stress level and mental health of lawyers? Are lawyers more stressed than the general populace?

Research around the globe shows that lawyers are significantly more stressed than other professionals. In 2018, a survey done of the Am Law 200 leaders indicated that work stress of lawyers is causing widespread addiction and mental health issues.

An Australian study by Jerome Doraisamy suggested that one out of three young lawyers or law students are battling depression, which is often triggered by excessive stress.

The Indian lawyers experience with stress is not much different. In the last few years, several lawyers have spoken out about depression, mental health and excessive work stress that lawyers have to face every day. Justice DY Chandrachud spoke out about this issue and highlighted the urgency of the situation.

A very important article on the subject was published by Caravan magazine that talked about the stigma and problem around mental health issues of lawyers.

Recently a survey indicated that lawyers are more likely to get divorced, especially if both spouses are lawyers. Lawyers will know very well how family life and leisure goes for a toss due to the constant pressure of delivering work every single day, and the lack of real holidays.

Work stress is probably inevitable for every lawyer. But do you have a strategy to deal with it? Are you prepared? Are there any best practices you can implement to save yourself from the worst of it?

Is there a reason for you to worry?

What is the connection between stress, success, and failure?

Is it possible to succeed without any stress? Stress is inevitable, and an important part of success. Basically, the obstacle itself is the way as far as lawyers are concerned. More stressful a case, more important and desirable it is to get those matters as far as a lawyer is concerned. As your stature grows, you get more such matters.

Interestingly, our brains are hardwired for survival, and not for success. That’s how our hunter ancestors saved themselves from perceived dangers while searching for food in the forest.

I was once listening to Steven Spielberg where he was talking about the movie ‘Jaws’.

He was talking about how music was used to create a strong sense of fear in the minds of the viewers even without there being a shark on screen. That’s how they scare you in horror movies, isn’t it?

It’s important to understand here that our brain’s primordial response to any stressful situation is sensing, feeling and thinking. Stress is deeply embedded in the fight or flight response of the brain to situations of perceived danger.

Now as a lawyer, you will encounter many stressful situations that will trigger the fight or flight mechanism of your brain. As a lawyer your success will often depend on managing that mechanism and dealing with a situation from strategy and well thought out plans rather than sub-optimal fight or flight responses. This is one important part of dealing with stress.

The other very important part is to learn to take stress as a enabler for growth rather than a negative element in everyday life.

Success requires getting outside your comfort zone to achieve your goals. Success requires the need to grow from your present reality to your desired state of resourcefulness.

To outgrow yourself in the profession, challenging situations must be dealt with without invoking fight or flight response, and by embracing the challenge rather than getting suffocated by it. Whether you can succeed in the legal profession, therefore, depends on whether you perceive stress as a desirable element or not.

The question is whether stress is happening to you or whether you are seeking it out as a challenge that would make you grow, and managing it well thereafter.

Using stress as a vehicle for success depends on your attitude and belief system.

While stress can be an elementary reaction in many situations of your career, if you learn to see it as a positive challenge, it can be a game changer.

When is stress detrimental and when is it not?

I remember when I was in school, the notice of the exam time table stressed me a lot because it used to come as a sudden surprise in otherwise routine life of school-tuition-cricket-video games-eat-sleep and repeat.

But ultimately that timetable just a week before exams was my call to action. It suddenly used to make me organized and competitive.

In the professional space too, deadlines are not only important but inevitable from the point of view of getting things done.

Stress makes us accountable towards achieving targets, meeting deadlines and to achieve our goals.

Similarly, for some people, the thrill when pushed against a deadline might be similar to the adrenaline rush they experience when skydiving.

In such cases, the brain feeds our reward centre with performance-boosting endorphins causing a feel-good dopamine rush.

What really determines whether stress is detrimental to you or not is your level adaptiveness to it. Adaptive stress is beneficial as it makes people pumped up for a challenging situation.

Stress can make you accountable and enhance your performance but there are downsides if stress is not managed properly.

While instances of work pressure situations in small doses can make you productive, repeated high-pressure workdays, pulling off all-nighters can be counterproductive and exhaustive.

What if office politics and arguments with colleagues causes emotional stress in you? Unresolved emotional stress weakens your immune system. The fear of losing high stakes matter raises your blood pressure causing anxiety and depression. If your mind and spirit is not robust and you take stress in the wrong way, you will face depression, all around breakdown in performance, and serious health issues.

Let’s just take the impact of stress on our eating habits. Our hunter ancestors would eat as much as was available when they found food in order to compensate for the lean times. Researchers at the University of Miami found out that people are likely to consume 40 percent more food during stressful times. Where does that take your physical and mental fitness?

Similarly, stress that is not managed can cause your immunity to crash and lead to all sorts of horrible and unusual diseases.

From weight gain, high blood pressure, heart diseases, diabetes to poor emotional health, stress can cause a lot of damage to you.

This is why learning stress management is a critical skill for every lawyer. Is stress going to be rocket fuel for your growth, or the lead tied around your feet that makes you sink?

How to tell if you are under too much stress?

The flight or fight survival mechanism is only meant to last long enough to get you out of danger. So long episodes of worrying, belittling thoughts, anxiety can destroy you. Long bouts of stress is an alarming signal.

Are you hitting the snooze button of your morning alarm for too many days in a row? Are you waking up eventually with a feeling of tiredness?

Are you finding it difficult to control your emotions? Is there a constant feeling of inadequacy or an impending sense of worry? Did you have an emotional meltdown or did you find yourself close to one?

You might have some physical symptoms too. Examples are insomnia, troubled breathing, indigestion or chest pain.

Are you withdrawing from your social circle for extended periods? Are you giving into one or other kind of addiction? Addiction may not only be to some drugs, alcohol or cigarettes, it could be even addiction to seemingly harmless things like social media or entertainment.

Watch out. Stress overload is a real thing. Even if you have managed stress very well so far, you need to have a strategy and dedicated time to destress. Without that, you may find yourself in a very dark place eventually.

What will happen if you fail to manage stress?

You will find yourself in a loop of lack of mental and physical wellbeing making you unproductive. Your performance and efficiency might go for a toss which will lead to more stress and anxiety. Failure to manage stress very often leads to depression and various other mental and physical diseases. This would definitely hamper your career in a very big way.

Also too much stress can shut down or weaken your important mental faculties. Stress can cause loss of creativity and ability to connect with people.

A large part of being successful as a lawyer is therefore to learn to manage stress and keeping depression, ill-health and other such side effects of stress at bay.

How to identify what is causing stress for you, and whether it is productive or not?

Your stressors are unique to you and may come from either external or internal sources causing a physical sense of uneasiness. Most of our stressors are a result of our perceptions about various situations happening to us.

Watch out for the physical response when the brain recognizes a stressful situation. Not only does the heart pump more blood, it also releases glucose to the muscles making us physically alert to save ourselves whenever we are stressed.

Many people describe feeling goosebumps in the stomach or a punch in the gut.

Self-awareness is the key to identify stressors

The phone is ringing off the hook. Your inbox is overflowing. You’re 45 minutes late for a deadline and your boss is knocking on your door, asking how your latest project is going. You’re stressed, to say the least.

However, if your life feels like this every day of the week, you may be experiencing long-term or chronic stress. This type of stress can be dangerous to your health if you don’t work to overcome it or cope with its effects.

Big stressors include money troubles, job issues, relationship conflicts, and major life changes, such as the loss of a loved one.

Smaller stressors, such as long daily commutes and rushed mornings, can also add up over time.

You have to determine the right amount of stress that gives you energy, discipline and zeal as opposed to the wrong amount of stress that can potentially harm your health and relationships.

Writing down what’s triggering stressful responses is a great way to start.

How can lawyers manage stress?

First of all, know that it’s not a character flaw.

The next time you feel overwhelmingly stressed out, don’t beat yourself up for it. You don’t need to think that you are a rock of Gibraltar for the client.

You are human so if you feel overwhelmed by a particular situation, talk and seek help from others. In fact, having a relationship with mentors, coaches and peer networks who can support you in such situations is extremely important to have. Without that, you are less likely to go far. Building such community around you is a critical task of yours as a lawyer.

Depression can be caused due to biological reasons. It’s can be just another illness like cough, cold, typhoid, diabetes. Stress, anxiety or depression can be caused by your genetics too. It can be a result of a biochemical imbalance in response to social stressors. So don’t think of it as a weakness or a personality flaw.

It can be worked upon and dealt with just like any other problem. Like many other problems you battle every day and win, you have to learn to deal with it and eventually you will learn how to stay away from it.

Let go of the need for perfection

The nature of the profession is such that it demands attention to detail. Think about it. A lawyer is hired to effectively mitigate all the situations that can go wrong. Basically you get paid to aim for perfection. However, it is important to remember that you are a work-in-progress and not a finished product. Aim for perfection but when you miss it, you have to take it on your stride too and live to fight another day. The battle may be lost but the war is still going on.

Demanding clients, law firm environment, fear of losing that argument can make you feel that you are not good enough, or that you are a failure, etc. This is natural and almost all lawyers experience this. It is important to build a system that keeps you positive through all negativity. You need to have people around you who inspire you and remind you that you are meant for great things. You have to believe in your own potential and greatness and the future that is waiting for you. Without that, you will not survive in this profession.

Surround yourself with positive messages. I listen to affirmation tracks, make sure I follow a lot of positivity channels on Instagram, follow inspiring people on LinkedIn and Twitter and constantly interact with inspiring people in real life also.

You have to design a more positive environment all around you so that you can beat the negativity that is inherent in every human being, and therefore you.

Focus on your inner well being

Stress is a physical reaction to a situation. Taking deep breaths can counteract its effects.

Intellectually we all know the benefits of meditation and exercise but lawyers will be the first ones to find excuses to not do these things. You are keeping busy, crazy work hours and blah blah.

That does not work. Lawyers are at high risk, and you must make time to exercise and meditate. Even if for 10 minutes in a day! If you do not do this, you will find it very difficult to sustain yourself in the long run. It is almost impossible in fact! Most lawyers burn out in a few years and then learn how to workout or meditate despite busy schedule or give up on being successful.

Meditation de-clutters our mind, makes us more mindful and self-aware.

Self-awareness leads to more resilience towards external stressors and problems.

A lot of lawyer’s work is about analyzing and decision making. Your ability to solve people’s problems creatively, take better decisions will increase with a mind centred calmness. I think you deserve a few minutes of self-care for the massive amount of hours you put into your work.

How about Journalising

You keep a diary for keeping track of your cases, dates and appointments. Today we can ask Google or Alexa to notify us about our meetings and schedules too.  

What about keeping track of your thoughts during the day? Writing your thoughts down is a proven way to get rid of your day to day frustrations and stay in good mental health.

You can identify your stressors, analyze your thought and behaviour patterns over a period of time and make a strategy to deal with them.

Once you realize the fleeting nature of thoughts, you will never let your mind fool you into reacting out of proportion in response to a particular situation.

Are you getting enough exercise?

The law firm environment can be demanding. Working for 12-14 hours a day,  especially at a desk job ruins your health. Regular exercise releases endorphins which are natural mood stabilizers.

A sharper mind along with more focused and energized you will respond with increased levels of productivity on the job. Exercise enables you to handle stress much better without killing yourself.

Are you getting enough sleep?

How often have you pulled off all-nighters to prepare for cases listed for the next morning or for drafting a response for the client?

While 3-4 cups of coffee can help you remain focused for the night, repeated episodes of sleep deprivation are counterproductive and unsustainable.  

You surely don’t want to look exhausted before the judge or the client. Apart from that, your creativity and presence of mind will take a hit. Lawyers who succeed in the long run, do not do so by not getting enough sleep.

If you have the option, join the 5 AM club. Join the likes of Richard Branson, Apple CEO Tim Cook, Indira Nooyi, Michelle Obama etc who are all early risers. Waking up early will enable you to set up a morning routine. An early head start to the day is the secret to get more things done throughout the day.

In case you are in one of those law firms where working till 2 AM is a norm, make sure you take breaks in between. Even consider changing your job, there are enough things a lawyer can do that ensures amazing success and lifestyle without compromising your physical and mental health. In any case, you must at least get 6 hours of daily sleep to rejuvenate your mind and body.

Prioritize and organize

As Mark Twain famously said, you must eat the frog first thing in the morning, and the rest of your day will be wonderful.

What he meant was to prioritize your day in such a way that the most important and challenging tasks are finished first.

Avoid the phone and answering emails first thing in the morning.

Nothing is as distracting for a lawyer than getting interrupted by a pushy or demanding client, replying to his WhatsApp messages in the middle of drafting a brief or preparing for an argument.

Schedule your day by making to-do lists and allocating your most productive time to the most demanding work. At the end of each day, plan for the next day. Avoid interruptions as much as possible.

Take small breaks in between demanding schedules.

Learn to say no to unimportant meetings.

Declutter your table, keep only minimal files and papers.

I was once talking on the phone, while simultaneously going through my mailbox, and my senior was asking for a case file from behind. Don’t you think that sort of situation is a recipe for goof up? I hit the ‘reply all’ button while responding to one particular professional communication where I should not have.

Does this sound familiar?

It is not just about making mistakes. When you are juggling too many things at once, it creates massive cognitive stress. This is also very bad for us in the long run. We need to learn to compartmentalize work.

Many lawyers get into a habit of multitasking. We even take pride in it. However, multitasking is a myth and another name for inefficient work by people who fail to organize and prioritize. It is a major impediment to our efficiency and productivity.

Manage your relationship with clients

Clients can be demanding, overbearing, pushy and sometimes even “forget” to pay. You get clients who will email and five minutes later if you haven’t responded, they will call the landline and then try the cellphone, and then start that sequence again.

Technology has made demanding clients a whole lot worse, because they can email, call and text you constantly.

It’s made practicing in general very exhausting; you just can’t escape from it.

In such cases, don’t shy away from having direct conversations with the client, or putting a gatekeeper like a secretary in place to manage such clients. Get a professional to do follow up for fees, documents etc rather than doing everything yourself.

You need to reduce stress so that you can focus on what really matters.

Delegate your work

A solo lawyer’s diary for the day reads 2 matters listed in the district court, 3 in consumer court, one arbitration matter and so on. You can’t be everywhere.

There is commute time to consider also and even if you manage, you can’t perform with the same level of efficiency all throughout the day.

A lawyer can get more done through the art of effective delegation. Focusing on core areas of work takes away the time spent on monotonous routine tasks and improves billable hours too.

Avoid office politics

You have been pulling off all-nighters on a project and one fine day, you find that your senior associate has taken all the credit for your hard work.

What if the promotion you were working so hard for has been given to that favourite employee who knows the art of buttering up your senior just in the right doses.

Office politics is everywhere. Law firms are no exception. Each of us, at some point in our lives, has felt like an outsider.

Agreed, the law firm environment is highly competitive coupled with work pressure. However, negative states of competitiveness and insecurity about the job bring about feelings of jealousy.

The focus shifts from performance to playing politics, spreading rumours, forming groups in office.

Scholars from Florida State University and the University of Wisconsin analyzed office politics by using the game of chess as an analogy.

They depicted employees as players on a chessboard, each of whom is encouraged to exploit opportunities by embarking on clever strategies.

That, apparently, involves being street smart rather than book smart. They add: “Playing office politics, in many respects, is just like any other game: the more you play, the more you tend to improve.” More specifically, they suggest adding the following to your repertoire:

• Focus on the values that guide you rather than other people’s character traits
• Learn how to be a better networker and connect with others in your organization.
• Move beyond superficial conversations and gossips towards developing meaningful and profound relationships.
• Observe the office culture and pay attention to trends, patterns, ideas and systems that could serve you well.
• Avoid taking part in grapevine communication. Say ‘no’ to spreading rumours.
• Be prepared to occasionally give up short-term goals, like in chess where “sometimes you have to sacrifice a pawn in order to take a queen”.

You need to embrace office politics since there is no getting away from it unless you start your own organization or join a very small organization.

Learn new skills

I know lawyers who are very good Yoga experts. I know lawyers who are trained at Neuro-Linguistic Programming or lawyers who are multilingual.

Learning new skills adds another dimension to your persona and keeps your brain cells fresh. It also helps to beat stress.

It is important to detach yourself from the intensive nature of work from time to time. Feeding your creative soul is important. Many lawyers are advised by their doctors to practice a musical instrument for this purpose.

Your work is after all only one part of your life. Don’t get consumed by it. Breaking out of patterns is important in terms of brain development too. If you do not care for any other areas of your life other than work, then it is highly likely that you will also experience crushing stress.

Don’t undermine the value of a social circle

The nature of the legal profession is such that life can get a little isolated.

You are expected to keep confidentiality at all times. It becomes your second nature without you realizing.

You might get consumed in your client’s problems. Client meetings are common on holidays and Sundays.

That’s where the value of family and a social circle comes in. It’s important that you have people around to remind you to keep work at work, take mini vacations, or confide with friends about stressful situations at work.

You are running a marathon, not a sprint. Conserve your energy, health and spirit, because you are going nowhere without these in really good shape.

How do you deal with work stress?

I look forward to hearing from you. What stresses you out? What do you do to stay in good physical and mental health? Are there some good suggestions you want to share with the larger legal community?

One thing that can really help with stress is your competence and training. Good lawyers must continuously train themselves and build their skill sets so that they are prepared to deal with even the most stressful situations.

Being ready is critical. It reduces stress and increases performance. We have a bunch of courses that help lawyers to do just that.

Learn about real life legal situations you will face when you practice, and train yourself so that you can avoid the worst stress.

Here is a list we recommend:

Diploma:

Diploma in Intellectual Property, Media and Entertainment Laws

Diploma in Cyber Law, Fintech Regulations and Technology Contracts

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution

Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions)

Diploma in Entrepreneurship Administration and Business Laws

Executive certificate course:

Certificate in Labour, Employment and Industrial Laws for HR Managers

Certificate Course in Companies Act

Certificate Course in Insolvency and Bankruptcy Code

Certificate Course in Advanced Corporate Taxation

Certificate Course in Advanced Civil Litigation: Practice, Procedure, and Drafting

Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting

Test preparation:

Judgment Writing and Drafting Course for Judicial Services

The post Why Stress Management is Critical for Lawyers to Succeed appeared first on iPleaders.