The article has been written by Ayush Verma, a 2nd-year student at RMLNLU, Lucknow. It discusses various provisions relating to the delivery of property under CPC.

Introduction

When a decree is passed by a Court in the favour of a decree-holder, he needs to apply to the court for execution of the decree. Execution of a decree means the implementation of a judgement given by the Court. The decree is executed against the judgement-holder who has to satisfy the decree when the court orders for such execution. There are many ways through which a decree can be executed. One such way is by the delivery of property.

Section 51(1) of the CPC says that the Court has the power to order execution of the decree, on the application of the decree-holder, by delivery of any property specifically decreed. Provisions in Order XXI provide for delivery of property under CPC.

It is said that justice must not only be done but it must appear to have been done. Therefore, granting a decree is not enough, but the Court has to make sure that such a decree should be properly enforced. Keeping in mind these words, when a Court asks for delivery of a property, it must be enforced properly and the decree-holder has the right to move to the Court where the property has not been delivered to him.

Kinds of property and its mode of delivery

There are two kinds of property:

• Movable; and
• Immovable Property.

There are different modes of delivery depending on the kinds of property.

Movable property

Movable property refers to assets that can be moved from one place to another like vehicles, jewellery etc.

Order XXI Rule 79 reads that where a moveable property is to be sold, of which actual seizure has been made, it shall be delivered to the purchaser. Where a moveable property is in the possession of some person other than the judgement-debtor, the delivery to the purchaser shall be made after giving the notice to the person in possession prohibiting him to deliver the property to any other person except the purchaser.

Order XXI Rule 31 provides that where the decree is for any specific moveable property or for any share in such property, it may be executed by the seizure of that property or share and by delivery to the party to whom it has been adjudged, or to such person who is appointed for receiving delivery on his behalf.

Immovable property

Immovable property refers to real estate property that cannot be displaced like house, factory etc. Order XXI Rule 35 states that where the decree is for delivery of any immoveable property, possession of such property shall be delivered to the party to whom it has been adjudged, or to the person who has been appointed by that party to receive the delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the land. And, where a decree is for the joint possession of immoveable property, it shall be delivered by affixing a copy of the warrant in some conspicuous place of the property and proclamation by beating of drums, or other customary mode, the substance of the decree at some convenient place. Lastly, where possession of any building or enclosure is to be delivered and the person in possession who is bound by the decree does not give access to that property, the Court may, through its officers, after giving reasonable warning and facility to any woman not appearing in public due to the customs of the country, to withdraw, remove or open any lock or bolt or by breaking the door or any other act to put the decree-holder in possession of the property.

Order XXI Rule 36 states that where a decree is for delivery of any immovable property that is in the occupancy of a tenant or any other person who is entitled to occupy such property and is not bound by the decree to relinquish such occupancy, the Court shall make an order for delivery by affixing a copy of the warrant in some conspicuous place on the property, and by proclamation to the occupancy by beating of the drums or any other customary mode at some convenient place, the substance of the decree in regard to the property.

In the case of Mumtaz Jehan v. Insha Allah, it was held that under Rule 35(1) actual possession is delivered by removing all persons bound by the decree and Under Rule 36, symbolic possession is delivered where the property is in occupancy of the tenants entitled to occupy and not bound by the decree to deliver possession.

In the case of Ratan Lal Jain v. Uma Shankar Vyas, it was held that the former is actual or physical delivery of the possession while the latter is delivery of formal or symbolic possession.

The case of Shamsuddin v. Abbas further cleared the difference between the two. It held that the person in actual possession is not physically dispossessed from the property given to him in execution of the decree. While delivery in Rule 36 remains delivery of formal or symbolic possession so far as the person in actual possession is concerned but as against the person bound by such decree, it amounts to delivery to possession.

Resistance to delivery of possession

A situation may arise where the judgement debtor or any other party may resist or obstruct to deliver the decretal property. The decree-holder, in such a case, can move to the court for enforcement of his decree by removal of such obstruction. The provisions related to resistance or obstruction to delivery of possession has been given from Rule 97 to Rule 103 of Order XXI.

Scope of inquiry

The inquiry needs to be done regarding the possession of the decree by a third party or the judgement debtor. If the person resisting to deliver the possession is judgement debtor or any other person claiming through him, then the scope of inquiry would be of summary nature. However, if a third person is claiming his independent right, title or interest in the immoveable property, then the scope of inquiry would be wider. The executing Court can frame the issues and call upon the parties to lead the evidence in their favour.

Nature of Inquiry

When there is a resistance from a stranger to deliver the possession, and which is recognised by the Executing Court as well as by the decree­ holder, the only remedy available to the decree-holder is to move against such stranger under Order XXI Rule 97 sub­rule (1) and he cannot by­-pass such obstruction caused by the stranger and insist on re­issuance of warrant for possession by the help of police force under Order XXI, Rule 35, as that course would amount to by-passing and dodging the procedure laid down under Order XXI Rule 97 for removal of obstruction of purported strangers to the decree. When the Executing Court recognises such obstruction by a stranger to the decree, it is difficult to appreciate how the Executing Court can tell such stranger that he must first lose possession and then only remedy available to him is to move an application under Order XXI Rule 99 and pray for the restoration of possession.

Application by decree-holder or auction-purchaser

Where a decree-holder is resisted or obstructed in execution of the decree for possession and as a result of which, the decree for such possession cannot be executed in the manner as specified under Order XXI Rule 35, then the decree-holder can move an application under Order XXI Rule 97 for removal of the obstruction. The Court in the case Brahma Deo Chaudhary v. Rishikesh Prasad Jaiswal held the same.

And, the Court after hearing both the parties (i.e decree-holder and obstructionist) can pass an order that it finds appropriate, after adjudicating the matter between the parties as given in sub-rule (2) of Rule 97 of Order XXI.

Application by another person

Order XXI Rule 99 states that where a person other than the judgement-debtor is dispossessed of any immovable property by the decree-holder in whose favour the decree was passed, or where such property has been sold in order to execute the decree, by the purchaser, such a person who has lost his property may make an application before the court complaining of such dispossession. The Court has to adjudicate upon the matter between the parties under sub-rule (2) of Order XXI Rule 99.

Hearing of application

Order XXI Rule 105 deals with the provision relating to hearing of application. It states that:

• The Court before which an application is made under any of the foregoing rules of this Order (i.e Order XXI) is pending, may fix a day for the hearing of the application.
• If the applicant does not appear on the day fixed by the Court or any other date to which the hearing may be adjourned, when called for the hearing of the application, the Court may make an order for dismissal of his application.
• Where the applicant appears before the Court but the opposite party against whom the notice has been issued by the Court, it may hear the application ex-parte and pass an order that it thinks fit.

Questions to be determined by the Court

Order XXI Rule 101 states that all the questions (including those related to the right, title or interest in the property) arising between the parties to a proceeding on an application made under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application must be determined by the Court dealing with the application. It further states that these questions shall not be determined by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to be vested with the jurisdiction to decide such questions.

Adjudication by the Court

Where an application has been made by an applicant under Order XXI Rule 97, the Court has the power to pass such orders as given in Rule 98 of Order XXI. It states that the Court shall, upon the determination of the questions given in Rule 101, in accordance with such determination and subject to the provisions of sub-rule (2) –

• Make an order allowing the application and directing that the applicant be put in the possession of the property.
• Make an order dismissing such an application.
• Pass such order as it thinks fit keeping in mind the circumstances of the case.

Sub-rule (2) of Rule 98 states that where the Court, after determination of questions as given in Rule 101, is satisfied that the resistance or obstruction was occasioned without any just cause by the judgement-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant to be put in the possession of the property. And, if the restriction or obstruction still exists in obtaining possession by the applicant, the Court may also, at the instance of the applicant, order that the judgment-debtor or any other person acting at his instigation or on his behalf be detained in the civil prison for a term which may extend up to thirty days.

Under Rule 100, similar orders (as given in sub-rule (1) of Rule 98) can be passed by the court, where an application is made complaining dispossession.

Transferee pendente lite

Rule 102 of Order XXI talks about “Rules not applicable to transferee pendente lite. It states that nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of any immovable property by a person to whom the property was transferred by the judgement-debtor after the institution of the suit in which the decree was passed or to the dispossession of any such person.

Orders to be treated as decrees

Rule 103 of Order XXI states that where an application has been adjudicated upon under Rule 98 and 100, the order made by the Court shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.

Subject to the result or pendency of a suit

Order XXI Rule 104 states that every order made under Rule 101 or 103 shall be subject to the result of a suit that may be pending in the Court on the date of commencement of the proceeding in which such order is made if in that suit the party against whom the order under Rule 101 or 103 is made has sought to establish a right which he claims to the present possession of the property.

Conclusion

Delivery of property is an important way of satisfying the decree that is passed in favour of a decree-holder. A decree for delivery of movable property is granted under Rule 31 while Rule 35 and 36 deals with decree granting immovable property. However, a situation may arise where resistance or obstruction is caused in delivery of those properties. In such situations, the provisions given under Rule 97 to 103 can be utilised.

References

• http://mja.gov.in/Site/Upload/GR/Title%20NO.146(As%20Per%20Workshop%20List%20title%20no146%20pdf).pdf
• https://lawtimesjournal.in/delivery-property-takes-place/

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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This article is written by Atul Agarwal, pursuing a Certificate Course in Arbitration: Strategy, Procedure and Drafting from Lawsikho.com. Here he discusses “What are the 5 most important arbitration destinations around the world?”. 

Introduction

Arbitration is the settling of legal disputes privately and behind closed doors outside the public court hearing system. The improvements are that parties can decide the location and the language used for the hearings as well as choose the arbitrators. In international trade, arbitration is the preferred method of dispute settlement over litigation, since it is faster and easier to enforce an arbitral award than a court decision, in a foreign State. 

Multilateral conventions and bilateral treaties among countries facilitate enforcement of foreign arbitral awards in an effective manner. Enforcement of arbitral awards is easier, because of the prescribed nature of the arbitration process itself. It is easier for a court to enforce the consequence of an agreement between two parties than a decision representing the authority of a foreign State (in the form of a court decision). The tendency in the international convention is to facilitate enforcement of arbitral awards for faster resolution.

Foreign Awards

A foreign award means an arbitral award on disputes arising between parties belonging to different nationalities, whether in a contractual or non-contractual relationship.

Top Five Destinations

The top five foreign destinations preferred are :

1. Singapore
2. Hong Kong
3. London
4. Paris
5. Geneva

Singapore

Most of Asia is still a developing region in the world. And in this region, Singapore and Hong Kong have emerged as one of the prominent economies. It is usually known that every venture faces the risk of execution and effective enforcement comes when there is an operative dispute resolution machinery in place. Singapore has maintained a steady path to promote its jurisdiction as an arbitration-friendly and pro-business community. In 2008, the International Court of Arbitration of the International Chamber of Commerce (ICC) decided to establish its Asian offices in Singapore.

Singapore is challenging the established centres for arbitration such as London, Paris and Stockholm. According to a Financial Times report dated 03.06.2016, case filings at the Singapore International Arbitration Centre (SIAC) have increased by more than 300 percent in the past 15 years. In 2000, Singapore handled fifty-eight cases however numbers rose dramatically in the years to come. In 2015 there were 271 filings. By distinction, the London Court of Arbitration had 326 arbitrations referred to it in 2015, up 10 percent in 2014.1

One of the important contributing factors for Singapore emerging as an attractive arbitration destination is its geographical location and trade links – at the crossroads of South East Asia, and in between the sea lanes of communication that are located across China and India.

The Business Inc. perceives Singapore as a neutral venue for arbitration, and the strong ranking of the country in corruption indices (ranked third) reinforces the legislative environment. In turn, Singapore’s legal regime is supported by a world-class arbitration infrastructure.

The attraction of arbitration in international business transactions in Singapore is attributable to the following: 

1. Strong rule of law,
2. Arbitration legislation based on the UNCITRAL Model Law on International Commercial Arbitration 1985 (UNCITRAL Model Arbitration Law),
3. Supportive judiciary,
4. Confidentiality of arbitration proceedings, and
5. Cutting-edge arbitration facilities at Singapore’s Maxwell Chambers

Hong Kong

Most reasons given above to explain why Singapore is an important arbitration destination would apply to Hong Kong as well. 

Till the recent past, there was no specific legislative provision addressing the arbitrability, or otherwise, of an IPR related dispute in Hong Kong. The Arbitration (Amendment) Bill 2016, introduced into the Legislative Council on 14 December 2016, sought to insert such provisions by way of a new chapter which define terms relating to IPR disputes, confirm that such disputes may be arbitrated, clarify the status of licensees who are not party to the arbitration and provide that an arbitral award may not be set aside, or refused enforcement, only because the award involves an IPR.

Further, on 1st November 2018, the Hong Kong International Arbitration Centre’s new administered arbitration rules came into effect. The 2018 HKIAC Rules introduced impactful changes that improved the efficiency with which disputes were resolved and added flexibility and cost management to parties engaged in increasingly complex transactions.

The highlights of the aforesaid rules were:

• a refinement to emergency arbitration procedure;
• new early determination procedure;
• the requirement to disclose third party funding;
• more encompassing provisions for bringing a single arbitration under multiple contracts, concurrent proceedings and HKIAC’s role in joinder applications; and
• deadline for the delivery of awards.

The 2018 HKIAC Rules apply to all or any arbitrations during which a notice of arbitration is submitted on or after 1st November 2018, where the arbitration agreement provides for HKIAC administered arbitration.

Also, the median duration of an HKIAC arbitration is of less than a year, and is broadly comparable to that of the SIAC, but compares favourably to the figures of the London Court of International Arbitration. Median tribunal fees for HKIAC arbitrations (US$19,587.63) are approximately US$7,300 lower than those for the SIAC.2

London

The nature of English law and the common law traditions make London an important destination for hosting arbitrations. A specific component that has specific attractiveness to businesses is that the general importance connected to English law to the principle of freedom to contract. Furthermore, arbitration in London is preferred by many parties because of the discretion advantages that are provided. English Law, in general, attaches significance to the confidentiality of attempts to resolve arbitration disputes.

A further advantage of arbitrating in London is the knowledge and skill of many legal professionals and arbitral bodies in dealing with international matters. Half of the world’s leading law firms are based in London. England, and more importantly London, has been a centre for international trade for many centuries.

The UK is a party to the New York Convention 1958 which assists the enforcement in the 140 other party states of arbitration decisions made in London. 

London continues to receive competition from New York, Dubai, Singapore and Hong Kong yet the advantages of English law with its domestic traditions and international capabilities make it a rather lucrative destination for parties to resolve matters by way of arbitration.

Paris

France has developed a legal system favouring arbitration, particularly in the case of international arbitration. The system has been set up through various reforms and case law creating a solid tradition of judicial non-interference of French courts in the arbitral process.

The country is a party to many international and European conventions aiming to simplify the recognition and enforcement of foreign arbitral awards and prohibits any challenge on merits against such awards. 

Click Above

Except for exceptional situations, it is very difficult, in France, to prevent arbitration proceedings from taking place or to set aside an arbitral award. The enforcement of arbitral awards is easily facilitated in France. Recourses against arbitral awards or against decisions granting enforcement are not suspensive and said recourses seldom forestall the enforcement of the arbitrational awards they challenge.

From a logistical standpoint, Paris provides numerous hotels and conference centers, close to international hubs (airports and stations), where the parties, their counsels, arbitrators, court reporters and interpreters can meet with ease. 

Geneva

Switzerland’s multi-lingual and federal nature, its geographical position in the center of Europe and its small size encourages Switzerland’s lawyers to develop cross-cultural skills to find mutually acceptable solutions for all types of disputes and to act for parties belonging to different countries involved in disputes. The ability to deal with different legal problems including the aforesaid characteristics has led to the development of a sophisticated arbitration bar comprising many of the world’s best-known arbitrators.

Geneva has long been at the forefront in the development of international law and arbitration. As an example, in 1872 the governments of the United States and Britain decided to settle a dispute over the U.S.’s claims for damages against the UK arising from the British role in building the Confederate warship, by arbitration in Geneva rather than resorting to war. Since then Geneva has been taking part in a number one role as a current hub of international arbitration.

Further, the Swiss Chambers of Commerce (“SCC”) has been offering arbitration services for more than 150 years. And with the Swiss Rules of International Arbitration, they offer a uniform, efficient and cost effective methods of binding dispute resolution based on finest practices and international standards. Arbitration under the Swiss Rules is administered by the Swiss Chambers’ Arbitration Institution (SCAI), a body comprised of experienced international arbitration practitioners who act in complete independence.

Even more, contrary to state court judgments, arbitral awards rendered under the Swiss Rules are confidential. Owing to a variety of international conventions they are easier to enforce on a worldwide basis than court judgments. Swiss Rules arbitration can be customized according to any budget and type of dispute, and can even be combined with conciliation or mediation.

Conclusion

It is generally seen that India is not most favored as an International Arbitration destination principally due to reasons like time, judicial intervention, costliness, struggle in enforcing both domestic and international awards, and the independent grounds for appeal based on public policy. These are major issues that deter foreign investors and parties from picking India. Research and preparation are required to be done before arbitration. If the government is willing to work on the problems, then India can emerge as a leading target for international arbitration.

Endnotes

1. https://www.ft.com/content/704c5458-e79a-11e5-a09b-1f8b0d268c39
2. Matthew Townsend, ‘Arbitration in Hong Kong: The Year of the Monkey in Hindsight’, Kluwer Arbitration Blog, February 25 2017, http://arbitrationblog.kluwerarbitration.com/2017/02/25/arbitration-in-hong-kong-the-year-of-the-monkey-in-hindsight

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 are the 5 Most Important Arbitration Destinations Around the World? appeared first on iPleaders.

This article is written by Gauraw Kumar, a 2nd-year student of BVP-New Law College, Pune. In this article, he covers “Commercial Courts” and tries to discuss scope and jurisdiction related to the Commercial Courts Act, 2015.

Introduction

‘Commerce’ refers to business matters such as contract, export or import, financing agreements, trade etc. Thus, Commercial Courts are made to resolve business issues such as fraud, breach of contract, unfair trade practices etc. Commercial Courts have jurisdiction to solve the issues arising in businesses. In simple words, we can say that when any business suffers a loss due to injustice in a transaction, then he can knock the door of a commercial court.

More than 3 crores cases are pending throughout the country as per the latest reports. India is the largest country by landmass and is the most populous country after China having a population of approximately 1.3 billion. Government has also given the freedom to do any type of business (some exceptions) in India. At the same time, it is also important to solve the issue raised in the business field. As per the report of The Times of India, the pendency of commercial disputes in courts have risen from day by day. It is very important that the government create a sound business environment throughout the country to attract both domestic as well as foreign investors. One of the steps, which the government can take to ensure the creation of a sound business environment is by bringing clarity to the legal regime governing the conduct of business in the country and also at the same time ensuring that the litigation process is smooth, fair and bound.

The State and Central government, have from time to time seek to amend the existing law and pass new legislation to ensure that the whole process of litigation becomes smoother and less protracted.

Thus, the Government has introduced The Commercial Court Act 2015 to resolve the issues or problems of business smoothly and quickly.

Commercial Disputes

Dispute means some type of disagreement. If it is related to the commercial matter, then we will say that it is a disagreement arising in the business where one party is not able to fulfil his promise for which he was legally bound and other parties suffer loss.

A Commercial dispute is a business dispute. It means a dispute between two businesses or dispute between business and customer/clients. A dispute is some disagreement such as infringement of contract, not deliver expected things which are mentioned in clauses of the contract, delivery of bad quality of products, invalid price, parties not filing obligation in some way etc.

Section 2(c) of the Commercial Courts Act, 2015 defines “Commercial dispute” as it is a dispute arises out of the following matters:

1. The dispute in enforcement and interpretation of documents in ordinary transactions of merchants, bankers, financiers and traders.
2. Export or import of merchandise or services.
3. Issues in admiralty and maritime law.
4. The transaction relating to aircraft, aircraft engines, aircraft equipment and helicopters, including sales, leasing and financing of the same.
5. Carriage of goods.
6. Contract related to construction and infrastructure, including tenders.
7. Agreements relating to immovable property used in commerce.
8. Franchising agreements.
9. Distribution and licensing agreements.
10. Management and consultancy agreements.
11. Joint venture agreements.
12. Shareholders agreements.
13. Subscription and investment agreements pertaining to the services industry including outsourcing and financial services.
14. Mercantile agency and mercantile usage.
15. Partnership agreements.
16. Technology developments agreements.
17. Intellectual property rights relating to trademarks, copyright, patent, domain names, geographical indications and semiconductor integrated circuits.
18. Agreements for the sale of goods or provision of services.
19. The exploitation of oil and gas reserves or other natural resources including the electromagnetic spectrum.
20. Insurance and reinsurance.
21. Contract of agency related to any of the above.
22. Other commercial disputes notified by the Central Government.

Types of Commercial Disputes

Commercial Disputes can be of two types:

• The dispute between two businesses

In this type of Commercial dispute, there is a dispute between two businesses. Like- both engage in some type of contractual relationship with each other and breach of contract by one party, do something which is not in the contract and ignores clauses of the contract which is expected to do.

• The dispute between business and clients/customers

In this type of Commercial dispute, there is a dispute between business and clients/customers. Like- customers dissatisfied with the product or services of a business, or customers suffer from unfair trade practices.

Commercial courts

Commercial Courts are defined in Section 2(b) of the Commercial Courts Act, 2015. Any court for the purpose of exercising the powers under the Commercial Courts Act, 2015 which is constituted by State Government at the district level, may after consultation with the concerned High Court by notification.

Section 3(3) of the Act, the State governments with the concurrence of the Chief Justice of the High Court appoint one or more persons having experience in commercial disputes to be the judges of Commercial court.

How can we file a case in Commercial Courts? (Disclosure, Discovery and Inspection)

• The Plaintiff shall file a list of all documents and photocopies in its power, possession, control or custody pertaining to the suit, specifying whether such documents are original, office copies or photocopies and must state in brief, details of the parties to each document, mode of execution, issuance or receipt and line of custody of each document.
• The Plaintiff shall submit a Statement of Truth from the plaintiff that all documents in the power, possession, control or custody pertaining to the facts and circumstances of the proceedings have been disclosed and copies thereof annexed with that the plaintiff does not have any other documents in its possession.
• In the case of urgent filings, the plaintiff may seek to leave to rely on additional documents and shall file them within 30 days of filing the suits, along with a declaration on oath.
• No plaintiff will be allowed to rely on documents which were not disclosed, save and except by leave of Court and such leave shall be granted only upon the plaintiff establishing reasonable cause for such non-disclosure.
• The plaint shall set out details of documents which the plaintiff believes to be in its power, possession, control or custody of the defendant and which the plaintiff wishes to rely upon and seek leave for production thereof.
• The same rule applies to the defendants in relation to the written statement/ counterclaim.
• The duty to disclose documents continues till the disposal of the suit.
• The plaint shall set out details of documents which the plaintiff believes to be in its power, possession, control or custody of the defendant and which the plaintiff wishes to rely upon and seek leave for production thereof.
• Parties have the option to, with the leave of the court, deliver interrogatories in writing for the examination of opposite parties.
• Parties must complete inspection of documents within 30 days of filing written statement. This time limit may be extended by the court.
• A party may seek direction at any stage, for the inspection/production of documents by the other party of which inspection has been refused or documents have not been produced despite notice to produce. Such an application must be disposed within 30 days of its filing.
• If such an application is allowed, inspection and copies of documents must be provided within 5 days of such order.
• Every party, within 15 days of completion of inspection must file a statement of admission and denial pertaining to the correctness of contents, existence issuance/ receipt and custody of the document, along with an affidavit in support thereof.
• Reasons for denial of a document must be provided by a party.
• In the case of disclosures and inspection of Electronic Records (as defined in the Information Technology Act, 2000), furnishing of printouts shall be sufficient compliance. At the discretion of parties, copies of electronic records may even be furnished in electronic form in lieu of or additional to printouts.
• Where electronic documents form part of documents on record, the declaration of oath by the party must specify:

1. Parties to the electronic record;
2. The manner in which such record was produced and by whom;
3. Date and time preparation/ storage/ issuance/ receipt of such record;
4. Source of such record and date and time when the record was printed;
5. In case of email ids, details of ownership, custody and access to such email ids;
6. In case of the document stored on computer/ computer resource, details of ownership, custody and access to such computer/ computer resources;
7. Deponent’s knowledge of contents and correctness of contents;
8. Whether the computer or computer resource used for preparing or receiving or storing such document or data was functioning properly or in case of a malfunction that such malfunction did not affect the contents of the documents stored.

Jurisdiction of Commercial Courts

Section 6 deals with the Jurisdiction of Commercial courts. The Commercial courts are made to resolve all suits and applications relating to the commercial dispute arising out of the entire territory of the State over which it has been vested territorial jurisdiction. A commercial dispute shall be related to provisions of Section 16, 17, 18, 19 and 20 of the Code of Civil Procedure 1908.

Jurisdiction of commercial divisions of High courts

Section 7 deals with the Jurisdiction of commercial divisions of High Courts. All suits and applications relating to commercial disputes of particular values filed in the High Court having original civil jurisdiction to hear and resolved by commercial division of High courts.

Commercial Division of the High Court has jurisdiction to hear all suits and applications relating to commercial disputes, specified by an act to lie in a court (not inferior to a District court) and pending on original side of High court.

All suits and applications transferred to the High Court under Section 22(4) of the Design Act, 2000 or Section 104 of the Patents Act, 1970 shall be heard and resolved by the Commercial Division of the High Court.

Bar of Jurisdiction of Commercial Courts and Commercial divisions

Section 11 provides for bar jurisdiction of Commercial Court and Commercial divisions and provides that they shall not be empowered to decide any suit, application or proceeding related to any commercial disputes in respect of which the jurisdiction of the Civil Court is either expressly barred under any other law for the time being in force.

Concept of ‘Mediation and Settlement’

Section 12A deals with “Pre-institution Mediation and Settlement”. Mediation means resolving the dispute outside the commercial court with the help of specific authorities appointed by the Central Government under the Legal Services Authorities Act 1987. As per amendment of this Act in 2018, pre-institution mediation and settlement are essential for knocking the door of the commercial court. It means, it is mandatory to involve in mediation before knocking on the door of Commercial court.

According to Section 12A(1), a suit which does not require any urgent remedies shall not be instituted unless the plaintiff involves in remedies of pre-institution mediation in such a manner prescribed by the Central Government. Section 12A(2) states that the central government authorised authorities constituted under the Legal Services Authorities Act 1987. According to Section 12A(3), the time taken for resolving the dispute by mediation should be 3 months from the date of application made by the plaintiff. Provided that time period can be extended to 2 months with the consent of the parties. The period under proceeding of mediation will not be considered as limitation under the Limitation Act, 1963. According to Section 12A(4), when commercial dispute came to a solution or settlement, then it should be signed by both the parties along with mediator.

Appeals from decrees of Commercial Courts and Commercial Divisions

Chapter IV, Section 13(1) of the Commercial Courts Act 2015 deals with Appeals. 

• Appeal from an order of Commercial Court below District level Judge will lie before the Commercial Appellate Division and must be filed within 60 days.
• Appeal from an order of Commercial court at District Judge level exercising original civil jurisdiction or as the case may be, Commercial Division of the High Court will lie before Commercial Appellate Division of that High Court be filed within 60 days of such order.
• No appeal shall lie from any order/ decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of the Act.

According to Section 14, ‘The Commercial Appellate Court and the Commercial Appellate Division shall try to dispose of appeals filed within a period of six months from the date of filing of such appeal’.

Transfer of Pending Suits

Section 15 deals with the transfer of pending cases and the proviso to section 15(2) of the Act clearly provides that no suit or application wherein the final judgements has been reserved by the Court prior to the Commercial Division or Commercial Court shall be transferred.

The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act, 2018

The amendment of 2018 sought to achieve the following objectives:

• to reduce the specified value of commercial disputes from Rs. One Crore to Rs. Three Lacs, and to enable parties to approach the lowest level of subordinate courts for a speedy resolution of commercial disputes;
• To enable the State Governments, with respect to High Courts having ordinary original civil jurisdiction, to constitute commercial courts at the district level and to specify such pecuniary value of commercial disputes which shall not be less than Rs. three lacs and not more than the pecuniary jurisdiction of the district courts;
• to enable the State Governments, except the territories over which High Courts have ordinary original civil jurisdiction, to designate such number of Commercial Appellate Courts at District level to exercise appellate jurisdiction over the commercial courts below the district judge level; and
• to promote for compulsory mediation before institution of a suit, where no urgent relief is contemplated and for this purpose, to introduce Pre-Institution Mediation and Settlement Mechanism and to enable State Governments to authorise authorities constituted under the Legal Services Authorities Act, 1987 for this purpose.

Conclusion

Commercial Courts are courts for resolving commercial disputes arising in the business field. Government has introduced the Commercial Courts Act 2015 to establish a special type of court for business issues on the district level. In 2018, the amendment of the Commercial Courts Act 2015 Act came into existence in which various changes are made in the Act for the smooth functioning of commercial courts with minimum pending cases.

References

• Bare act of Commercial Court Act 2015

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This article is written by Shivangi Tiwari, a second-year student pursuing B.A. LL.B. from Hidayatullah National Law University, Raipur. This is an exhaustive article dealing with Lapse of Offer.

Introduction

The Indian Contract Act defines the meaning of the term “contract” under Section 2(h). According to the Section, a contract is an agreement enforceable by law. Thus there are two essentials to be fulfilled for the formation of a binding contract. Firstly, there should be an agreement between two or more contracting party and secondly, the agreement should have legal enforceability. The term “agreement” has been defined as every promise or every set of promises in exchange for each other which form a set of consideration for each other. Section 2(b) defines the term “promise” as a proposal or offer which is accepted by the offeree.

Every contract is an agreement but not every agreement is a contract. An agreement becomes a contract when the following conditions are fulfilled:

• There should be some consideration in exchange for both the offer and acceptance by the parties to the contract;
• The parties entering into a contract must be competent to enter into it. The competency of parties to enter into parties has been discussed under Section 11 and Section 12;
• The consent of the parties to the contract should be free and should not be vitiated by any of the vitiating factors mentioned under Section 19;
• The object of entering into the contract should be lawful.

The dictionary meaning of “Revocation” is annulling any work which was previously done. In the law of contract, a contract is entered into between two or more parties when one party makes an offer to another with a view to obtaining the assent of the other party to the offer and once the offer of the person is accepted a valid contract is entered. However, the parties to a contract are at the liberty of revoking both offer and acceptance at a later point of time. The procedure and the rules of revocation are laid down under Section 5 of the Contract Act. Revocation is a way of termination of the offer. There are three ways of termination of an offer, the three of them are mentioned below:

• Revocation;
• Rejection; or
• Lapse of the offer.

In this article different ways of termination of the contract have been dealt with in detail.

Notice of revocation

Section 5 of the Indian Contract Act, 1872 provides that any proposal can be revoked by the offeree at any time before the communication of acceptance is complete as against the offeror and not afterwards. The communication of acceptance is complete as against the offeror or the proposer when the acceptance is put in the course of transmission to him and it becomes out of the control of the acceptor. Therefore, in case of communication of acceptance by electronic mail, the communication of revocation to have the effect must reach the offeree before he mails his acceptance thus making it out of his control. It is important that the revocation in order to be effective should be brought into the notice of the person to whom it is made.

In Henthorn v. Fraser, Mr Fraser who was the defendant handed over a note to the complainant which detailed an option for the sale of the property at 750 euros with the condition that the acceptance should be conveyed within fourteen days of such offer. While this offer was considered another buyer approached the defendant and the defendant concluded the contract with him instead. The very next day the defendant informed the plaintiff about the withdrawal of the offer. The note reached the plaintiff after 5 pm and by that time Mr Henthorn had already responded positively to the offer unconditionally at the price which was offered by the defendant. However, the acceptance did not reach the defendant until the next morning and the defendant did not read the acceptance till the very next day when the acceptance reached the defendant. The court, in this case, held that the postal rule laid down by the court in Adam v. Lindsell will apply according to the rule it is reasonable for the offer to take place by post. However, this rule is inapplicable to revocation of the offer. The post was a way to communicate the offer to the offeree but the acceptance is completed at the moment it is posted so as to be out of the control of the offeree. Practically the rule was a reasonable one keeping in view the fact that the two parties stayed at different towns.

Thus, it is a settled principle that the notice of revocation by the offeror should reach the offeree before he has put the acceptance into the course of transmission which shall then become out of his power. The above principle is further clarified by the illustration which is attached to Section 5. ‘A’ by means of a letter proposes ‘B’ his house which was for sale. B accepts the proposal by the means of acceptance sent through a post. In this case, A can revoke his offer at any time before or at the time when B posts his letter of acceptance.

Section 4 and 5 contains the provisions related to the communication of proposal, acceptance and revocation. Section 4 of the Indian Contract Act states the following with respect to the time when communication is complete:

• The communication of a proposal is complete when the same comes to the notice of the person to whom it is addressed to;
• The communication of acceptance as against the proposer is complete when it is put in the course of transmission addressed to him;
• The communication of acceptance as against the acceptor or the offeree is complete when the acceptance comes to the knowledge of the offeror or proposer;
• The communication of revocation is complete as against the person who makes such revocation when it is out in the course of transmission to the person to whom it is addressed so as to be out of the power of the person making such revocation;
• The communication of revocation is complete as against the person to whom it is made when such communication comes to his knowledge.

Section 5 of the Indian Contract Act contains provisions regarding the revocation of proposals and acceptance. The Section states that the revocation of the proposal can be made at any time before the communication of acceptance is complete as against the proposer but not afterwards. While acceptance may be revoked anytime before the completion of communication of acceptance as against the acceptor but the same can not be done afterwards.

Withdrawal before the expiry of a fixed period

In a case where the offeror prescribes a certain time period to the offeree within which the offeree can accept the offer. The offeror has the authority to withdraw the offer even before the expiry of the prescribed time period. In Alfred Schonlank And Anr. vs A. Muthunayana Chetti, the defendant offered the plaintiff a proposal for sale of indigo and told the plaintiff that he can answer to his proposal within a period of eight days. However, on the fourth day from making the offer the defendant revoked the offer. The plaintiff, on the fifth day from the day when a proposal was made to him, accepted the offer. The Madras High Court held that the acceptance was of no use in the eyes of laws as it can be made clear both on principle and authority that in a case where there is no consideration for the promise to keep the offer open for a certain time period is nothing but nudum pactum or a bare promise.

When the notice of revocation reaches the offeree’s address it is deemed to be complete. In Tenax Steamship Co v Owners of the Motor Vessel Brimnes, the defendant company owned a ship called Brimnes. The defendants agreed to sell the ship Brimnes to the complainants on the condition that a charter party agreement will take place between them. The hire payment was made a period later than which was agreed between the parties under the terms of the contract. On one fine day, the complainant during the normal office hours gave the defendant a notice for the withdrawal of the ship from services through telex. However, the defendant read the letter on a later period and by that time he had already made the payment for the ships. The question before the appellate court was whether notice of withdrawal of service had effect before the defendant made the payment of hire of ships. The court held that the withdrawal was effective when the telex message was received by the defendant and not when the defendant read the message. Therefore, this case became the authority for the reasoning that in the case where the revocation is sent through instantaneous means like telex, the revocation becomes effective from the time on which the revocation could have been read and not the time when it was actually read by the person to whom it was addressed to. 

Acceptance of proposal under the voluntary retirement scheme

Under the Voluntary Retirement scheme, the employees were given the right to apply for voluntary retirement by requesting the same in writing to the authorities. However, the authorities in these cases had the complete discretion to accept or reject these requests. The requirement of the employee who requested under the scheme could take place only once the request has been accepted by the authorities in writing. The scheme was only an invitation to offer and the application made by the employee was an offer made to the authorities who were therefore offeree. The employee being the offeror could withdraw the offer anytime before the same is accepted by the offeree. The term in the scheme preventing the employee from the withdrawal of the proposal was held to be non-binding.

In Shashikala Parashar vs State Of Goa & Another, the employee first made the request for his voluntary transfer but later on, he requested that the request made by him should be suspended for some time. The Government, however, accepted the resignation. The employee aggrieved by the government’s decision moved to the court and the court held that the request made by the employee was a mere assertion without having any backing of proof or an affidavit. The order of Government was like an acceptance which was made after the revocation of the proposal was made and the request to keep the proposal in suspension was not the same as withdrawal of the proposal.

In K. Appa Rao v. M/s Tungabhadra Steel Products Ltd. & Others, the plaintiff submitted his resignation which was accepted on 31 March 2003 the resignation was accepted. However, the resignation offer was to take effect from 23 June 2003 which is after the expiry of the three months of the notice period. The question before the court was that which date should be considered as the effective date of resignation. The court held that the effective date of resignation will be the date on which the employee will be released and not the date of acceptance of the request made by the employee. Meanwhile, the employee is free to withdraw his resignation.

The employer is under no obligation to accept the proposal of premature retirement and therefore no action could lie in any court of law where the employee has refused to accept such proposal. In Visakhapatnam Port Trust & Others v/s T.S.N. Raju & Another, a large number of employees in a company filed an application for voluntary retirement. However, the company decided that it would not entertain all the application as the number of retirements that the company could afford had already been exhausted. The Court held that the employer could not be necessarily bound to accept all the application for resignation.

In New India Assurance Co. Ltd vs Raghuvir Singh Narang & Anr, the general principles of contract provided that once an employee has made an application for the resignation under the voluntary retirement scheme he could not withdraw the same at any time afterwards. The court held that the terms of the statutory scheme guaranteeing voluntary retirement would prevail over the general principles of law.

Agreement to keep the offer open for a specified period

Where the offeror proposes an offer to be open for a specified period of time and it is accompanied by a consideration. The offeror has no discretion to withdraw the offer before the completion of the specified period. In Mountford and another v.Scott, the owner of the house who was the defendant is essential that the communication of revocation should be made by the offeror himself or any agent who is duly authorized by him. This rule does not apply in England. In England, Dickinson v. Dodds is the authority on this matter, in this case, the defendant made an offer to the plaintiff for the sale of the property at a fixed price and the terms of the proposal also made it clear that the offer could be accepted by the plaintiff within a specified time period. However, before the expiration of the specified time, the plaintiff was informed by a party that the offer has already been revoked as the defendant has already sold the property to some other person. Despite knowing the fact that the property which was offered to him the plaintiff before the expiration of the offer gave a letter of acceptance of an offer to the defendant. The court, In this case, the court held that the offer can be revoked anytime before the acceptance by the offeree is made and that the sale to the third party was already in knowledge of the plaintiff and so the plaintiff already knew that the defendant was not minded to sell the property to him and therefore the acceptance by the plaintiff at a later point of time when the property had already been transferred to the other party has no value in the eyes of law.

The defendant in the present case made an offer to the plaintiff for the sale of his house for ten thousand pound and the offer was made for specified time and was backed by consideration according to which the plaintiff had the option of paying one pound to keep the offer of the defendant open for a specified time period. The court, in this case, held that after the plaintiff deposited one pound to the defendant, the defendant was not allowed to revoke the offer before the expiry of the specified period as the effect of the offer made it irrevocable for the specified time and therefore the offeree is free to accept the offer within the specified time notwithstanding the offerors purported revocation.

In State Of Haryana & Ors vs M/S Malik Traders, the bid security was accompanied with a condition that the bid security can not be forfeited by the bidders in case of withdrawal of the bid before the expiry of its validity period. However, the court rejected the conditions put by the authorities organizing the bid by holding them to be invalid and held that the withdrawal of bid before the end of the validity period even before the acceptance did not put an end to the right of the offeree to forfeit the bid security.

Communication of revocation of the offer

In India, as suggested by Pollock and Mulla, this rule has no applicability and reason behind it is the Section 6(1) of the Indian Contract Act, 1872 which mandates that the revocation could be made only by the offeror and no other person. 

Revocation of the general offer

In the case where the offer of general nature is made known to the people through any media, the withdrawal of the offer should be conveyed through the same media. The revocation so made would be effective even where any person in ignorance of the revocation subsequently performs the term of the offer which has already been withdrawn.

In Shuey v. United States, an announcement was published in the newspaper announcing reward for the person who reports certain criminals. However, this announcement was subsequently withdrawn by publishing a subsequent notification. The plaintiff in this case, after the notification was revoked reported the criminals in ignorance of the subsequent publication in the newspaper. The person reporting the crime was held not to be eligible for the reward price as the announcement was withdrawn through the same channel through which it was published.

Superseding proposal by a fresh proposal

In a case where the proposal is renewed not in entirety but in some parts before the acceptance is made to the original offer and the latter appears to supersede the earlier proposal. Then such a proposal will no longer be available for acceptance by the offeree. The acceptance could only be of the renewed part which has superseded the earlier or original proposal.

Cancellation of allotment of land

In Rochees Hotels Pvt. Ltd. And Anr. vs Jaipur Development Authority, under the order of a Development Authority, an allotment of land was made. The people to whom the allotment was made deposited the money and signed the agreement as a result of which a concluded came into effect between the allottees and the authorities who made the allotment of the land. The subsequent cancellation made by the authorities was challenged by the allottees in the court. The court held the subsequent cancellation of the allotment as improper and arbitrary. It was held that the authorities were bound by the obligation to approve building plans for the land. The pending criminal investigations regarding the allotment of land were irrelevant.

Revocation of bid

In a case where the agreement is entered into by auction. The acceptance to the agreement is signified by knocking down the hammer by the seller. A bid can be withdrawn before the hammer is knocked down by the seller. In The Rajah Of Bobbili vs Akella Suryanarayana Rao Garu, the petitioner at an auction made the highest bid. But before the hammer was knocked down he withdrew his bid on finding that the property was subject to a mortgage. But even after the retraction was made by the bidder the auctioneer knocked down the offer signifying the assent to the offer made by the plaintiff. Later on, the owner of the property sued the bidder. The court, in this case, held that the bid made by the plaintiff was nothing more than an offer and he had the discretion of withdrawing the same before his offer was accepted by the auctioneer.

The principle laid down in the above-mentioned case has been significantly extended by the High Courts in the subsequent cases which included even those cases where the bid was provisionally accepted and was subjected to further confirmation by the higher authorities.

In Union Of India & Ors vs M/S. Bhim Sen Walaiti Ram, in a public auction the highest bid was made by the plaintiff and therefore he got the liquor shop which was there for auction. The bid was subject to the consideration of the Chief Commissioner who had the duty to inquire into the financial condition of the bidder before granting him the license. According to the rules of the auction which was conducted the bidder was under the obligation to immediately pay the one-sixth price of the liquor shop immediately. If he defaults in paying the said amount, the Government had the power to can such bid and re-auction the shop. In this case, the plaintiff was unable to pay the amount which was specified and as a result of which the Chief Commissioner ordered the resale. The subsequent resale proved to be a loss for the Government since the price bidding realized in resale was much less than the original bidding. The authorities decided to make the defendant liable for making good the losses suffered by the authorities. The court, in this case, held that the defendant is not liable to make good of the losses suffered due to the resale of the shop as the Chief Commissioner had disapproved the bid made by the defendant.

In Haridwar Singh vs Bagun Sumbrui, a forest by way of the auction was given to the bidder even below its minimum price. The confirmation of the bill was still in the process while the bidder offered to pay the minimum value. The authorities who were holding the bill accepted it and by the way of telegram sent their acceptance to the forest officers for carrying on further transactions. The foreign officer due to some reasons never received the said telegram. Meanwhile, another person offered a higher price for the forest and the same was accepted by the authorities holding the auction. Later on, the authorities informed the forest officials about the acceptance. The acceptance reached the forest officer this time and he passed on the bid to the new bidder. The earlier bidder challenged the passing of bid. The court held that there was no concluded contract from the original bid since the acceptance which was made by the authorities on the earlier bill will be considered to be still present within the authorities as no communication as to their acceptance was ever made to the earlier bidder.

The auctioneer has the authority to specify the manner in which the bids can be revoked by the bidders.

In M. Lachia Setty & Sons Ltd. Etc. Etc vs The Coffee Board, Bangalore, one of the auction rules in the present case specified that any instructions or bids by means of telegraph will not be accepted. The defendant made his bid on the spot by filing the bid form. However, before the result of the bid were to announce the defendant revoked his bid by means of telegraphic communication. But the bid by the defendant was accepted by the auctioneer. The defendant later refused to perform the bid on the grounds that he had already communicated his revocation. The court, in this case, held that the express mentioning by the auctioneer of no entertainment of any telegraphic communication with respect to instruction or anything pertaining to bidding was wide enough to include within its ambit revocation as well. Therefore, the revocation made by the defendant is not a good revocation under law. 

Lapse of time

Where time is prescribed

Where in a contract, a fixed time has been prescribed to the offeree to communicate the acceptance, the offeree is bound to accept the offer within the fixed time so prescribed because after the expiry of the fixed time the offer lapses. With regard to this facet of contract law, the Calcutta High Court has suggested that in a case where the offeree has to communicate his acceptance within a specified time and he posts his acceptance within the stipulated time period, a binding contract will be held to have taken place between the parties. The validity of the offer by the offeree would not be affected if the letter of acceptance so posted within the stipulated time reaches the offeror after the completion of the specified time.

In the case of Bruner v. Moore, the offer was stipulated to last till the end of March. The offeree posted his letter to the offeror on 28th March which reached the offeree on 30th March. The court, in this case, held that the acceptance was valid.

In R. Vinoth Kumar vs The Secretary, the institution invited the applications for admission into the institution for a prescribed time by sending the same either through post or in-person to the institution. The candidate sent the application through the post before four days of the last date of the stipulated date but the same reached the institute after the stipulated time period was over. The court, in this case, held that the candidate was too late in sending the application. The rationale of the majority of the two judges in the case was that where the mode of communication can be decided by the acceptor at his free will, the agency whom the acceptor chooses acts as the agent of the sender, whereas in cases where the delivery is made through the mode which has been prescribed by the person to whom the delivery is addressed to, then the agency so prescribed by the addressee acts as agent of the addressee. In the former case, the delivery to the agency does not tantamount to delivery to the addressee. But in the latter case the delivery to the agency tantamounts to the delivery to the addressee. The dissenting judge, in this case, upheld that when the candidate selects any of the mode prescribed by the addressee, then the agency which is prescribed by the addressee would act as the agent of the addressee.

Where no time is prescribed

In the contracts where no time is specified within which the offer should be accepted it is a settled principle that the offer must be accepted within a reasonable time. In Shree Jaya Mahal Co-operative Housing Society Ltd. v. Zenith Chemical Works Pvt. Ltd. and others, the court held that the determination as to what will be considered as a reasonable time would be decided by the courts on a case to case basis keeping in view the facts and circumstances of the case. The definition of “reasonable period” is a question of facts and it depends upon the circumstances and the situation in which the agreement was entered into.

Contracts which involve precious materials like gold and other precious metals which are prone to high fluctuating price then in those cases the reasonable period would be a very short span of time. However, in contracts involving land the reasonable time period will not be the same as the time period regarded reasonable in the contracts the precious metals.

By failure to accept a condition precedent

Where the offer is subject to conditions precedent that is some preconditions have to be complied with before the acceptance is made. If the acceptance is made without fulfilment of the condition precedent then the offer lapses then and there.

In the State of West Bengal v. Mahendra Chandra Das, a salt lake was offered by way of a lease with a condition precedent which mandated that the person accepting the lease has to deposit a certain sum of money within the specified time. The defendant who was the intended lessee, in this case, did not deposit the amount of money even after the expiration of the stipulated time. The court held that the conduct of the defendant clearly indicated that the allotment stood cancelled. 

Conclusion

The Contract Act is the primary legislation in the country which deals with the contractual obligations between the parties. The Act not only contains the provisions related to entering into the contract but also the provisions related to the termination of the contract which is entered into by the parties. The parties to a contract are at the liberty of revoking both offer and acceptance at a later point of time. The procedure and the rules of revocation are laid down under Section 5 of the Contract Act. revocation is a way of termination of the offer. There are three ways of termination of an offer, the three of them are Revocation, Rejection or Lapse of the offer.

References

• https://blog.ipleaders.in/contract-postage-telephone/
• https://blog.ipleaders.in/rescission-of-a-contract/
• https://blog.ipleaders.in/contract-discharge/
• https://blog.ipleaders.in/forms-of-acceptance-to-an-offer/
• https://chestofbooks.com/business/law/Law-Of-Contracts-4-1/When-Communication-By-Mail-Or-Telegraph-Is-Proper-Theories-Continued.html

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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This article is written by Atul Agarwal, pursuing a Certificate Course in Arbitration: Strategy, Procedure and Drafting from Lawsikho.com. Here he discusses “Impact of Recent Amendments in Arbitration Law in India”.

Introduction

Arbitration in India is governed by the Arbitration and Conciliation Act, 1996 (“the 1996 Act“). The Act is centred on the UNCITRAL Model Law on International Commercial Arbitration, 1985 and the UNCITRAL Arbitration Rules, 1976. The UNCITRAL Model Law was embraced in 1985 with the unbiased to assist contracting states in upgrading and streamlining their laws on arbitral means to reflect on the needs of International Commercial Arbitration. The Indian Legislature enacted the Arbitration and Conciliation Act in 1996 with the object to unite and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards to define the law relating to conciliation and for matters connected therewith or incidental thereto. 

Since the time of enactment, the Act has gone a couple of amendments, the newest being published only recently. The Arbitration and Conciliation (Amendment) Act, 2019 (“the 2019 Amendment“) postulates significant modifications to the 1996 Act while meaningfully modifying some of the proposals introduced by the Arbitration and Conciliation (Amendment) Act, 2015 (“the 2015 Amendment“). 

Retrospective nature of the 2015 Amendment

The retrospective nature of the 2015 Amendment as it related to the court proceedings had further been conclusively determined by the Hon’ble Supreme Court by way of its judgments in two matters in the context of Section 36 of the 1996 Act1and in the context of Section 34 of the 1996 Act2.

The Hon’ble Supreme Court had also expressed its discontent with the then pending proposal to render the 2015 Amendment prospective in nature and had advised re-evaluation in this regard. However, the Parliament has explicitly overlooked the advice of the Hon’ble Supreme Court, and through the 2019 Amendment explicitly made the 2015 Amendment prospective in nature i.e. the provisions of the 2015 Amendment would only apply to cases where the arbitration was raised post 23.10.2015. The language makes the applicability of the 2019 Amendment perspective not only to arbitration proceedings but also related court proceedings.

Click Above

Timeline

The 2019 Amendment relaxes the strict time-period for the conclusion of arbitration proceedings as suggested by the 2015 Amendment to a certain extent.

The 2019 Amendment releases international commercial arbitrations from a pre-determined time-period, although retaining a provision for completion thereof within a period of 12 months from the date of completion of pleadings. 

In the case of domestic arbitration, the time period of 12 months (extendable by 6 months subject to consent by the parties) for the conclusion of the proceedings is now to be calculated from the date of completion of pleadings instead of the date of constitution of the arbitral tribunal.

Further, a period of six months’ time has been prescribed for the filing of the Statement of Claim and Defence. But it is uncertain as to what are the consequences of a breach of the six-month period by the parties.

Mandate of the Arbitrator(s)

The 2019 Amendment stipulates that when the parties have approached the Court with an application under Section 29A for extension of time for the conclusion of the arbitration proceedings, then the mandate of the arbitrator(s) shall continue till the disposal of the said application.

This guarantees the continuation of the arbitration proceedings for the period when the said application is pending before the Court, whereas previously the arbitrator could only revive the proceedings once the court would allow such application. Till that time, the period during which the application is pending would be a complete waste of time. 

Yet further, it has also been provided in the 2019 Amendment that if a Court deems it fit to effect a reduction in the fees of the arbitrator(s) while considering such an application, it shall do so only after giving the arbitrator(s) concerned an opportunity of being heard in the matter. 

Confidentiality of Arbitration Proceedings

The 2019 Amendment incorporates a precondition for the arbitrator, the arbitral society involved and the parties themselves to maintain the confidentiality of all arbitration proceedings, except where disclosure of the award is necessary for the purpose of its implementation and enforcement.

Interference with an Award under Section 34:

A modification brought about by the 2019 Amendment is in relation to the manner of substantiating the pre-requisites for intervention with an award under Section 34. Whereas the provision in the 1996 Act required a party to ‘furnish proof’ of the existence of conditions that would validate an interference with the award, the 2019 Amendment elucidates that the said circumstances have to be established on the basis of the record of the arbitral tribunal. Not only does this removes the ambiguous requirement of furnishing proof, yet it expressly clarifies that the demonstration must be made by the party concerned based on the record of the arbitral tribunal alone.

Power of Arbitrators to make orders under Section 17

The 2015 Amendment had permitted the parties to obtain interim procedures from an arbitral tribunal under Section 17 of the 1996 Act during the pendency of the arbitration proceedings or at any time after the making of the award, but before it was enforced in accordance with Section 36.

This period for which the arbitral tribunal can order interim relief has now been reduced in the 2019 Amendment, by the removal of the said power after the making of the arbitral award. This means that after the making of an award and before its enforcement, it is the concerned Court only which can be approached for interim measures under Section 9 of the 1996 Act. This ties in with the general prescription that the arbitral tribunal is by and large functus-officio after the passing of the award except for certain limited functions such as those mentioned in Section 33 of the 1996 Act.

Protection for Arbitrators

The 2019 Amendment also gives security for arbitrators and elucidates that no legal proceeding shall lie against an arbitrator for anything done in good faith or intended to be done under the 1996 Act. 

Arbitral Institutions and Delegation of Crucial Functions

The 2019 Amendment executes the idea initiated by the 2015 Amendment towards setting up and establishing arbitral institutions in the country. The 2019 Amendment expressly empowers the Supreme Court and the High Courts to appoint arbitral institutions for performing critical functions, including the appointment of arbitrators.

The function of appointing arbitrators has now by the 2019 Amendment been permitted to be delegated to an institution to be so elected by the Court concerned. The applications for an appointment which were up till now to be filed before the Supreme Court, in the case of international commercial arbitration, and the High Court, in the case of domestic arbitration, are now to be filed before the institution designated by the Supreme Court and the High Court respectively.

An arbitral institution is required to dispose of the application within a period of 30 days from the date of service of notice on the opposite party, though there is no clarity on the mandatory enforceability of this provision. If the High Court concerned is unable to designate an arbitral institution for lack of availability, then the High Court shall maintain a panel of arbitrators for discharging the functions and duties of the arbitral institution and any reference thereof would be deemed to be an arbitral institution. 

Applicability of the Fee Provisions

The 2019 Amendment proposes that in the absence of a designated arbitral institution, the High Court is required to maintain a panel of arbitrators and if a party were to appoint an arbitrator from such a panel then the fee as stipulated in the Fourth Schedule shall be applicable to the arbitrator appointed.

Establishment of the Arbitration Council of India

With the introduction of arbitral institutions, another provision is the creation of the Arbitration Council of India which has been moulded as an arbitration regulator performing various functions for promoting, improving and progressing the practice of arbitration in the country. To achieve this goal, the Arbitration Council of India has been given powers for grading arbitral institutions, recognizing professional institutes providing accreditation of arbitrators, maintaining a database of arbitral awards made in India etc.

The central government has been given the power to constitute the Arbitration Council of India. It needs to be seen what the relevant regulations in this regard would be set up for clarity on the scope of powers and functions of the council. 

Specific Qualifications

Until now, there were no specific qualifications prescribed for being appointed as an arbitrator, apart from the general requirements of independence and impartiality. The 2019 Amendment has introduced the Eighth Schedule which provides that only a certain specific class of persons holding certain qualifications would be qualified as an arbitrator including advocates, chartered accountants, cost accountants and company secretaries [all with 10 years of experience] or officers of the Indian legal service, or officers with a law degree or an engineering degree [both in the government and in the private sector with 10 years of experience], officers having senior level experience of administration [both in the government and in the private sector with 10 years of experience], or a person having educational qualification at the degree level with 10 years of experience in a technical or scientific stream in the fields of telecom, information technology, intellectual property rights or other specialized areas [both in the government and in the private sector].

The ability to be an arbitrator is expressly tied-in with qualification and experience. Further, any person having been convicted of any offence involving moral turpitude or an economic offence would fall afoul of these norms. However, both these qualifications and norms, are introduced by the 2019 Amendment in relation to Section 43J which pertains to accreditation of arbitrators by the Arbitration Council of India. 

Conclusion

While the aim of the 2019 Amendment Act is to promote arbitration, and strengthen institutional arbitration in India, the proposed changes to the Act may force India to take two steps back as an arbitration-friendly jurisdiction. Some of these issues may be resolved over time through judgments of the court. Foreign parties may not be inclined to seat their arbitrations in India, till such time that these issues are resolved.

Endnotes

1. Board of Control for Cricket in India v. Kochi Cricket (P.) Ltd., [(2018) 6 SCC 287]

2.  SsangYong Engineering and Construction Co. Ltd. v. National Highways Authority of India, [2019 (3) Arb. LR 152 (SC)]

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 Impact of Recent Amendments in Arbitration Law in India appeared first on iPleaders.

This article is written by Shivangi Tiwari, a second-year student pursuing B.A. LL.B. from Hidayatullah National Law University, Raipur. This is an exhaustive article dealing with Offer of Performance.

Introduction

The term “offer” has been defined under Section 2(a) of the Indian Contract Act, 1872. An offer is an expression of willingness made by a person to do or abstain from doing any act or omission with a view to obtaining the assent of the person to whom such an offer of act or abstinence is made. 

The term performance in its literal sense means the performance of a task or action. In its legal sense “performance” means the fulfilment or the completion of the obligations which they have towards the other party by virtue of the contract entered into by them. For example, ‘A’ and ‘B’ enter into a contract, the terms of the contract state that A has to deliver a book to B on payment of the consideration of five hundred rupees. Here, B pays to A rupees five hundred and as stipulated in the contract, A delivers him the book.

Section 37 of the Contract Act talks about performance. According to the Section, there are two types of performance which are:

• Actual performance: Actual performance of the contract means the actual discharge of the liability or obligation which a person has undertaken to perform and there remains no other task which he is obliged to discharge under the promise. He is said to have made the actual performance of the promise.
• Attempted performance: At times when the performance becomes due. The promisor is not able to discharge his obligation or perform his duty because he is prevented by the promisee in doing so. This situation where the promisor actually intended to perform his obligation or discharge his duty but is prevented from doing so by an intervening disability is known as the attempted performance of a promise. 

Attempted performance is also known as Tender. A tender can be of two types:

• Tender of goods and services: The discharge of the contract to deliver goods and services is completed when the goods are tendered for acceptance in accordance with the terms of contact. If the goods and services so tendered are not accepted they are to be taken back by the offeror and he is discharged from his liability.
• Tender of money: where the debtor tenders the money which is to be paid to the creditor but the debtor refuses to accept the money. The debtor is not discharged from the lability to pay back the money. Therefore, a tender of money can never result in the discharge of debt. 

This article exhaustively deals with the tender of performance and its different aspects, the performance of a contract and joint promises and joint liabilities arising thereto.

Tender of performance

Section 37 to Section 39 specifically deals with the performance of the contract by the parties thereto. According to Section 37 of the Indian Contract Act, 1872 the parties to a contract are under the obligation to either perform or offer to perform the promises which have been agreed upon under the contract. Section 2(b) of the Indian Contract Act defines the meaning of promise as a proposal made by the offeror which has been accepted by the offeree. Thus, each party is under a legal obligation to perform his obligation which has been agreed upon under the terms of the contract. Unless the terms of contract expressly exempts or dispenses the performance of obligation upon the person. 

The promises made by the parties to the contract after their death binds their representatives provided that no contrary intention appears from the terms of the contract. For example, if there is a contract between two persons ‘A’ and ‘B’ in which A promises to deliver to B some goods on the payment of a certain amount of money by B on a particular day. However, if A dies before the completion of contract, in that case, A’s representative will be bound by the promise made by him and therefore they are under the obligation to deliver goods to B and B is also under the obligation to pay the specified amount to A’s representative.

However, in the case where the promise is made with regards to the personal skills and art of the person then his representative will not be bound by the promise made by him. For example, in the case where A promised B to make him painting on a specified day for a certain price. A dies before the performance of the contract. Neither the representatives of A are not bound by the promise made by A nor B can compel the representative for the specific performance of the promise made by A.

The obligation of parties to perform

The obligations in a contract are those duties by which the parties to the contract have to abide by. In a contract, the parties to the contract usually exchange something of value in the eyes of the law. The thing which is decided to exchange can be the product, services, money, etc. An example of contract obligations is with the sale of a product such as an automobile. One party has the obligation to transfer ownership of the car, while the other has the obligation to pay for it. The contract will specify the terms that regulate the obligations, such as the method and amount of payment, and the time or place of delivery.

In the case of M. Kamalakannnan v. M. Manikanndan, there was a contract between the plaintiff and the defendant for the sale of the property. The plaintiff, in this case, retained some part of the money which was stipulated under the terms of the contract in order to compel the defendant for the performance of some of the obligations like vacating the property which was occupied by the tenants and handing over the vacant property to the plaintiff. The contention by the defendant was that non-payment of some part of the consideration resulted in the infringement of the terms of the contract.

In Geo-Group Communications INC v. IOL Broadband Ltd, the parties to the contract signed an agreement and they fully acted the terms of the agreements so much so that there arose no further need for the documents to be executed any further. The agreement was described as one of the preliminary and tentative drafts made for the purpose of discussion and deliberation only. When the contract was challenged in the court of law, the court held that the agreement was valid and it entitles the claimant for relief. 

Submission of tender tantamounts to a proposal

When in response to an invitation a lender is submitted it is considered to be a proposal to contract and not the contract itself. In M/S Great Eastern Energy vs M/S Jain Irrigation Systems Ltd, the tender specified the validity period for four months. The court held that after the expiry of the period of tender, no acceptance could be made. The forfeiture of the security deposit amount by acceptance of the tender after the expiry of its validity period and failure of performance by the tenderer was not improper.

Promises bind the representatives of the promisor

The proviso attached to Section 37 of the Act provides that in case of the death of the promisors the representative of such promisors would be bound by the promises made by them unless a contrary intention appears from the terms of the contract. In the case of Basanti Bai vs Sri Prafulla Kumar Routrai, that in case a person dies without leaving behind any legal representative, then, in that case, the liability to perform the promise on his behalf would fall upon the person who acquires interest over the subject matters of the contract through that deceased party. The Cuttack High Court, however, held that in the present case, the plaintiff was not able to enjoy the above mentioned legal proposition as she was unable to prove the existence of the agreement which was alleged by her.

Clause for renewal

The Clause for renewal is the provision by which the terms of the contract initially agreed upon are renewed or recommenced.

In Hardesh Ores Pvt. Ltd vs M/S. Hede And Company, the terms of the contract contained a renewal clause. The party which have the authority in accordance with the terms of the contract to renew the same exercised it. However, the other party refused to accept the new terms caused by renewal. The Supreme Court held that in such a case the best course of action for the party who is empowered by the terms of the contract to renew the terms of the contract is to get the renewal declared and enforced by the court of law or to get the declaration of renewal of contract by the court.

Tender of performance

The offeror should offer the performance of an obligation under the contract to the offeree. The offer is made is called the “tender of performance”. It is the discretion of the promisee to accept the offer. In case the promisee chooses not to accept the offer then neither the offeror could be held liable for the non-performance of the terms of the contract nor he loses his rights under the terms of the contract. Therefore, it is a settled principle that non-acceptance of the tender of performance would result in the exclusion of the promisor from further performance of the terms of the contract and he is also entitled to sue the other party for not performing the terms of the contract. Section 38 of the Contract Act makes it clear that a tender of performance tantamounts to performance. Every tender of performance must fulfil a certain essential condition:

• Section 38(1): The offer should be unconditional;
• Section 38(2): The offer must be made at a proper time and place so as to allow the party to have a reasonable time for ascertaining that the person who is making the offer to him is competent to enter into a contract;
• Section 38(3): If the offer to the offeree is such as to deliver some goods addressed to the offeree then it is the duty of the offeror to provide reasonable time to the offeree in which he can ascertain that the goods offered to him is the same by which the offeror is bound under the terms of the contract.

Tender of performance should be unconditional

Subsection 1 of Section 38 states that a tender to valid must be unconditional which means that it should not be accompanied with any clause, provision or condition precedent or subsequent. In Haji Abdul Rehman Haji Mahomed, the court, in this case, explained the situations in which the tender becomes conditional. According to the court, when a tender does not follow the terms of the contract which were originally drafted and agreed upon by the parties, the tender becomes conditional. The reason for making it a necessary is because of the fact that it is not reasonable to compel a party to accept the modified or altered terms of contract which were not initially agreed upon by the parties. For example, if A offers to pay B a certain sum of money if B agrees to sell certain goods to him. It is a conditional tender and therefore it is invalid. Similarly in a case where A sent a single cheque for two items, only one of which was due at the time, while the other was payable after some time. The cheque being one and indivisible could be accepted as whole or not at all. It was held that the promisee was within his right in rejecting cheque.

The tender of performance must be made at a proper time and place

Section 38(2) of the Act mandates that the tender of performance should necessarily be made at a time and place and under such circumstances so as to afford the person to whom the offer is made a reasonable opportunity to ascertain that the offeror is able and bound to do whatever he has promised under the terms of contract to do.

In P.L.S.A.R.S., Sabapathi Chetty (Deceased) Vs. Krishna Aiyar, the court held that generally, the parties to the tender of performance fix the time and place. The tender of performance should mandatorily be made at the time and place stipulated under the contract. If the performance is made within the stipulated time and place then the promisor is under no further obligations.

In Startup v. Macdonald, the defendant purchased ten tons of linseed oil to be delivered to the plaintiff within the last fourteen days of the month of March. The plaintiff tendered the defendant at night on the fourteenth day. The defendant however citing the lateness of the tender rejected the acceptance of the tender. The court, in this case, held that the defendant should be held liable for the breach of the terms of the contract and the contention made by him that the late acceptance of the tender was made could not be entertained because, although the acceptance was made lately still the acceptance, was made before midnight.

In Afovos shipping co. v. R Pagnan, an international contract was entered into by the plaintiff and defendant. The term of the contract provided that the payment which formed the consideration of the contract should reach on the 14th day of the month, however, the defendant repudiated the contract before the 14th day of the month. The court held that the defendant should have delayed the repudiation of the contract till 14th of the month.

Section 138(2) of the Act also provides that the tender must be made under such circumstances so as to allow the other party to get reasonable opportunity to ascertain that the person who is making the tender is capable and willing to fulfil all the conditions mentioned under the contract. Section 138(3) of the Act provides that the goods which are subjected to tender must be same as mentioned under the description of the tender otherwise the tender will be invalid.

In Dixon v. Clark the court held that the fact that payment was tendered and refused in no ways discharges the debtor from his liability to make good of the payment of a debt.

In Vidya Vati vs Devi Das, the principle of old standing which was given in the above-mentioned case was endorsed. In the debtor was under the obligation of paying back his loan in order to recover the vacant possession of his premises and his tender was also rejected. However, the court held that debtor was not released from the obligation to pay prior to his recovery of the possession. 

By whom contracts must be performed

Section 40 of the Contract Act contains provisions regarding the performance of the contract. The Section provides that if by the terms of the contract it appears that the intention of the parties to the contract was such that any promise contained in it must essentially be performed by the promisor himself and no other person on his behalf can perform his promise. In all the other contracts the terms of which do not indicate any similar intention then in the absence of the promisor for the performance of the promise any other competent person can perform the promise on his behalf. For example where A promises to B a certain sum of money. The money could be paid to B by A personally or by any other authorized person authorized by A on his behalf. If in the above case A dies without authorizing the person who can make the payment on his behalf. Then his representative will be bound to make the payment on his behalf or they can appoint any other person to do so.

Effect of accepting performance by the third party

Section 41 of the Contract Act contains provisions regarding the effect of acceptance of performance of promise by the third party. The Section provides that where the promisee agrees to performance of a promise which is made to him by the offeror, by the third party. He can not at a later point of time enforce the contract against the promisor who initially promised to perform the promise.

If the terms of the contract indicate that from the very beginning of entering into the contract the parties to the contract intended specific performance of the promise by the promisor himself. The effect of reflection of such intention would be that the promise should essentially be performed by the promisor himself and the promise can not be enforced against his legal representative nor can his legal representatives can enforce the promise. This type of situation can usually be seen in cases which involve the personal skills of the promisor himself.

Generally, the rules laid down under Section 37 is that the promises of the deceased promisor will bind his representatives. Therefore, the general principle of the law of contract is that unless there appears a contrary intention in the terms of the contract. The representatives of a deceased promisor are bound by the promise of the deceased and the promises of the deceased are enforceable against his representatives.

In the case of Kapur Chand Godha vs Mir Nawab Himayatalikhan Azamjah, the court declared that the English and the Indian law differs substantially on the point of performance of the contract by the representatives of the deceased promisor, in the British law system, the rule is that the third party or the representatives of the deceased promisor could discharge his obligations only in the cases where it is clearly evident from the promise that it was the intention of the parties while the formation of the promise to bind their representatives in case any of the promisors dies, in Indian law, however, the position with respect to the performance of the promise by the representatives of the deceased on contrary to the English law and the same could be inferred from the words of Section 41 of the Indian Contract Act, which leave no ray of doubt that in cases where the appellants expressly declare the intention of the performance of their promise from the third party, they can not afterwards enforce the promise against the promisor. 

Joint promises

Section 42 of the Indian Contract Act talks about the joint promises. When two or more promisors agree to perform the terms of the promise together they are said to have made a joint promise and the people who jointly agreed to perform the promise are called the joint promisors. The section provides that the promisors are jointly liable to fulfil the promise until the terms of the contract provide anything to the contrary. The Section also provides that in case of death of any one of the joint promisors his legal representatives will be bound by the obligation under which the promisor was in his lifetime.

Performance of joint promises

According to English law, in a case where one of the several joint promisors dies. The surviving joint promisor would be bound by the rights and liabilities of the deceased joint promisors until a single joint promisor is alive the representatives of the promisor will not acquire any rights or liabilities. This rule is sometimes considered to put the creditor in the loss as he has no security of solvency of the creditors. This lacuna of the rule is filled by Section 42 of the Indian Contract Act. 

Devolution of joint liabilities

Section 42 of the Indian Contract Act deals with the devolution of joint liabilities. According to the Section in case, there are several joint promisors involved in a contract by making a promise then during the joint lives of the promisors they must fulfil the promise jointly. In case of death of any of the joint promisor, the representatives of the deceased promisor along with the surviving promisors should strive to fulfil the promise. On the death of the last surviving promisor, the representatives of all the deceased promisors would be jointly liable for fulfilment of the promise. However, this legal proposition is subject to any private arrangement between the parties to the contract.

Devolution of joint liabilities

When two or more persons enter into a joint promise then unless a contrary intention appears by the contract all promisors during their joint lives and after the death of any of them their representatives will be bound jointly along with the surviving promisor or promisors. After the death of all the promisors, the representatives of all the promisors will be bound by the promise jointly entered into by the deceased promisors.

This Section provides security to the promisee by assuring him that the promisors would be bound by the promise made by them during their joint life and after the death of either of the promisor, their representatives will be bound by the promise made by the deceased promisor. 

In Gannmani Anasuya & Ors vs Parvatini Amarendra Chowdhary, the court held that Section 42 shifts the burden of the fulfilment of the promise on the representatives of the deceased promisors. However, this liability is subject to the express or implied prescription of such provision by the promisors. Such prescription by the promisors could be inferred expressly or impliedly. 

Joint and several liability

Subsection 1 of section 43 of the Indian Contract Act contains the important facets of the joint promises. According to the Section when two or more persons jointly make a promise. The promisee has the authority to compel any of such joint promisors in the absence of the contract expressly prohibiting the promisee to do so.

Each promisor may compel contribution

Subsection 2 of Section 43 provides that each of the promisors in a joint promise may compel the other promisors to contribute equally with him in the performance of the promise unless a contrary intention appears from the terms of the contract.

Sharing of loss by default in contribution

Subsection 3 of Section 43 provides that in the case where any two or more joint promisors makes default in making a contribution in the promise, then the burden of loss must be borne by the remaining promisors and should make good the loss suffered by the other party by contributing in equal shares.

The explanation attached to the Section provides that nothing contained under Section 43 of the Indian Contract Act shall prevent the surety, from recovering the money which he has paid on behalf of the principal nor the Section empowers the principal from recovering anything from the surety on account of the surety’s payment made on behalf of the principal.

Illustrations

Below are the different illustrations provided under Section 43 of the Indian Contract Act:

• A, B and C jointly promised D to pay him 3000 rupees. D has the authority to compel either A, B or C to make payment of 3000 rupees to him.
• A, B and C jointly made a promise to D to pay him 3000 rupees. D compels C to make complete payment of 3000 rupees. Initially when A, B and C made the promise jointly each of them was liable to pay D 1000 rupees. However, in the event of the complete payment by C, C is entitled to recover from the other joint promisors, the amount which he paid to D. here in this case, A is insolvent but he is capable of making payment of half of what he was liable to pay to D therefore, A is obliged to pay 500 rupees to C whereas B would be liable to pay C, the share which was stipulated under the promise which was 1000 rupees and half of the sum which was defaulted by A that is half of 500 rupees. Therefore, B has to make payment of rupees 1250 to C.
• A, B, and C jointly promise to D to pay him 3000 rupees. A is compelled to pay the entire sum of 3000 to D. C is not in the position to pay anything to A in order to make him recover the sum which he alone has to pay to D. in this case B has to pay the amount of sum which he was under the obligation to pay to D along with that B also has to pay half of the sum which C has defaulted to pay A, that is why B has to pay to A rupees 1000 and rupees 500 which equals to rupees 1500.
• A, B, and C jointly promise to pay D rupees 3000. A and B are the sureties to C, in case of inability of C to pay D which he owed to him, A and B made the payment on his behalf. Here A and B can recover the amount paid by them on behalf of C.

Section 43 of the Indian Contract Act lays down the following three rules:

• Rule 1: When a joint promise without any express agreement to the agreement, the promisee has the discretion of specifically making only one of the joint promisors to pay the amount which was jointly promised by the promisors to pay him. A, B, and C jointly promise to pay D rupees 3000. A can compel either of the three promisors to pay him the amount stipulated in the promise.
• Rule 2: Where a specific joint promisor was compelled to pay the entire promised sum. Then he may compel the other joint promisors to pay him the amount which they were obliged to pay to the person to whom they had promised to pay the stipulated amount.
• Rule 3: Where one of the joint promisors due to his inability to make payment defaults in making a contribution to pay the stipulated amount, the remaining joint promisors must bear the cost in equal shares. For example, A, B and C promise D to pay him rupees 3000. In case C is unable to pay anything to D then the amount owed by C must be borne in equal share by A and B. in case C is able to pay half of what he is obliged to pay to D, the remaining amount must be paid by A and B in equal shares to the person whom they promised to pay the amount.

Release of one joint promisor

Section 44 of the Contract Act grants the Right to release to the creditor under which he may release either of the joint promisors from liability. The section provides that where the creditor has released either of the joint promisors from the liability. The other joint promisors are not discharged from their liabilities and they are still bound to fulfil the promise which they have made to the person. The release of the promisor from his liability towards the promisee, however, does not result in his release from the liability which he has towards the other joint promisors.

Section 44 of the Indian Contract Act marks a departure from the common law principle in which the release of one of the promisors from liability tantamounts to the release of the other promisors from their liability towards the promisee. Unless the promisee expressly provides for the preservation of rights against them.

Conclusion

The term “offer” has been defined under Section 2(a) of the Indian Contract Act, 1872. An offer is an expression of willingness made by a person to do or abstain from doing any act or omission with a view to obtaining the assent of the person whom such an offer of act or abstinence is made. 

The term performance in its literal sense means the performance of a task or action. In its legal sense performance means the fulfilment or the completion of the obligation of the parties which they have towards the other party by virtue of the contract entered into by them. For example, A and B enter into a contract the terms of the contract states that A has to deliver a book to B on payment of the consideration of five hundred rupees. Here, B pays to A rupees five hundred and as stipulated in the contract, A in return delivers him the book. Section 37 of the Contract Act talks about performance.

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

Lawyers are known to be naysayers. Professional sceptics, they are often paid to find faults.

Once the father of a friend who was starting a new business shared an idea of a business with me. Asked for legal advice. I told him 20 potential legal problems with his business plan. I took pride in my knowledge of law, but I never thought how all the doomsday predictions I made, made the entrepreneur feel!

He got pissed off. He never spoke to me again. 

Damn. I had a crush on that friend, and she was nice enough to introduce me to her dad. All I did was piss him off. Not a good move. 

Another lawyer friend was telling me a story today, which reminded me of this old incident. 

My friend was asked for advice about a property lease deal. He told all the problems with the deal to his client, especially advised against issuing post-dated cheques for rent. The other side refused to sign the deal without post-dated cheques. Then the deal fell through as both parties took an intransigent stance. 

If your friend is going to get married, are you going to tell him about how many ways his wife could misuse the law and take all his money and property and divorce him?

A wife can file a case under Section 377 against the husband. It’s wicked but possible. It happens a lot these days. You can’t file a marital rape case, but you can file a complaint alleging “unnatural sex”.

Should you tell this to your friend who is planning to say yes to the love of his life for getting married? Or even saying yes to an arranged marriage for that matter?

Not the greatest thing to do you see.

So what do we do?

As lawyers, we see lots of dangers ahead, as we should. That is our training, that is our superpower, but that can also be our liability.

Imagine that you work in a company. For the marketing team or the sales team, you may look like a roadblock. The guys who shoot down brilliant ideas, make doing business harder, put in crazy legal terms in contracts that make it harder to sell products or services.

You can’t be that person. You cannot stop at foreseeing problems and being the Cassandra, but you have to be the person who also gives the solution and the assurance that if push comes to shove you can handle it.

We are your lawyer. We have your back. You don’t need to be people being wicked, we will give it back to them. We are here to protect you.

We will tell you how to stay on the right path, and if people are still trying to screw around, we are here to ensure you prevail. 

We are here for you, so you can take that little bit of risk.

That’s the kind of lawyer people love.

You should tell your friend planning to get married: hey, yes there are a lot of ways a wicked bride can file false cases against you, but if such a thing happens I will be there to save your ass. Just do these couple of things and keep me updated if you ever think that things are going south. I know there may be people who will scare you, but you have nothing to worry about because I am your friend.

Click Above 

If you are an in-house counsel, you have to make sure that long term interests of the company are secure, that you do not land in legal soup, but you also have to come up with ideas that enable the business team to get what they want to get. Innovation cannot be sacrificed at the altar of legality all the time. That would turn your company into a failure, a laggard. 

You need to be the in-house legal genie, who grants people their wishes, with clever legal tricks, not that in-house legal ghoul who is always raining on everyone’s parade with legal objections.

It’s not so different if you are a law firm lawyer or the litigator. People would pay you for solutions, not for identifying problems and telling them the provisions of law. 

And that is why you need to be a legal engineer, a legal innovator. 

Tell your client the risks of issuing a post-dated cheque to the landlord, but also tell them that I will be there if you face such a situation to get out of that tricky situation with clever legal manoeuvres, and I will draft a contract now that would make it hard for those people to do any such things. You need to help to get that deal done, otherwise, nobody makes money, and what kind of legal advisor are you?

A solution-oriented lawyer will always beat the lawyers who have not learned to invent solutions but only go by the black and white text written in law books.

We teach solution-oriented lawyering in all our courses. Check them out:

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This article is written by Tanya Gupta, a 2nd-year law student, from BVP-New Law College, Pune. In this article, the author has discussed the concept of “False evidence and offences against crime”.

Introduction 

Evidence is every type of proof legally presented at trial (allowed by the judge) which is intended to convince the judge and/or jury of alleged material facts of the case. Evidence is any statement required or permitted by the court on oath and any document which is produced by the court’s instruction. As per Section 3 of the Indian Evidence Act, the evidence is of two types;

1. Oral 
2. Documentary Evidence

A statement or documentary evidence presented to the court when known to be false or is believed not to be true is false evidence. Criminal evidence is any physical or verbal evidence that is presented for the purpose to prove a crime.

False Evidence 

Section 191 of the Indian Penal Code explains that giving false evidence means a person bound by oath or express provision of law, to tell the truth, makes a false statement or a statement that he doesn’t believe to be true or believes to be false. False statement or evidence given by a person can be in written form or otherwise (oral or indicative). Section 191 is also known as Perjury under English Perjury Act 1911. For example, a matter concerning the handwriting of Z for which Z’s son is called to test the handwriting that whether it is of his father or not. Even after knowing it is not the handwriting of Z he states the opposite in court stating that it is the handwriting of Z. It is a typical offence called perjury. Taking up the same scenario of Z’s handwriting, where his son is called to testify his handwriting but this time his son is not confident and states that although I am not confident that it was not the handwriting of Z; in this situation, his son cannot be held liable under Section 193 of Indian Penal Code because his intention is not to lie. A copy of the sales deed shown in the court which is edited or fabricated is known as false evidence. Perjury is all about giving false evidence. Lets us take a classic example in which X is bound under oath that he will speak only the truth in respect to a case in which Y is suspect for the charge of murder that took place in Delhi. Now X says that Y was with me in Shimla on 20th May 2019( the date when the murder was committed). But X lies and gives false evidence. It is a clear example of perjury.

Essential Ingredients of False Evidence

False evidence made by a person who is:

1. Bound by oath, or 
2. By an express provision of law, or 
3. A declaration which a person is bound by law to make on any subject, and 
4. Which statement or declaration is false and which he either knows or believes to be false or does not believe to be true.

Three essential prerequisite condition for the application of Section 191:

1. A legal obligation to state the truth,
2. Making of a false statement or declaration, and 
3. Belief in its falsity. 

Differences vis-a-vis the English Law of Perjury

Perjury has been kept at the position of criminal form under English Law of Perjury because a person is at the guilt by the statutory obligation of crime if lawfully sworn as a witness or as an interpreter in a judicial proceeding where he lawfully makes a statement material in that proceeding which is known to be false or does not believe it to be true. 

The violation of oath is a condition prerequisite. Under Indian law, a statement contrary to oath /declaration requires an express provision to state the truth.

Under the English Law, the false statement is a statement or a declaration falsely made only in a judicial proceeding whereas, under Indian law false evidence is a statement when given to a public servant would also be classified as Perjury. 

Legally Bound by Oath or Law to Say the truth 

1. A Person is legally bound by oath if;

a) A Person should be bound by oath- Section 8 of the Oath act defines it that it is a duty to state the truth.

b) By an express provision of law to state the truth.

c) Or bound by law to make a declaration.

2) Legal obligation to speak the truth in view of the oath administered.

3) Express Provision of law which binds him to speak the truth.

4) Irregularity in the administration of the oath- There is some irregularity in administration on oath by officers i.e oath is not signed properly or there is some procedural irregularity. Now if there is any irregularity will Section 191 be applicable or not? It is immaterial. The person who takes the oath knows that he is lying will be punished under section 191 of the Indian Penal Code.

5) No application to advocates.

Fabricating False Evidence

Section 192 of the Indian Penal Code defines fabricating false evidence. Whoever causes any circumstances to exist or makes any false entry in any book or record or electronic record or makes any document or electronic record containing a false statement, intending that such circumstances, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such or before an arbitrator and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding to form is to form an opinion upon an evidence, to entertain an erroneous proceeding touching any point material to the result of such proceeding is said to fabricate false evidence.

Essentials of fabricating false evidence

1. Cause any circumstances to exist; or 
2. Makes any false entry in any book or record etc containing a false statement ;
3. Intending that such circumstances, false entry or false statement may appear in evidence in a:

a) Judicial proceeding, or 

b) In a proceeding taken by law before a public servant,

c) Before an arbitrator; and 

 4) Helps form an opinion upon the evidence, to entertain an erroneous opinion; 

 5) Touching any point material to the result of such proceeding. 

These essentials can be easily understood by a given example. There is a shopkeeper ‘X’ whose shop is in Lucknow and he pretends that his shop was open on 20th May 2019 although his shop was closed. He shows in his book entry that his shop was open. However, on that day ‘X’ went to Delhi and committed the crime of extortion. When Police investigates about it he shows his book entry as evidence. This would qualify as fabricating false evidence. 

An intention that Fabricated Evidence May Appear as evidence in a judicial proceeding

Intention plays a very vital role in Section 192. False document so made should appear in evidence in a judicial proceeding or before a public servant or arbitrator. 

Punishment for False Evidence 

The person who gives false evidence in the court can get imprisonment up to 7 years and also fine, whereas outside the court where the person has given false evidence can get imprisonment up to 3 years and fine. Giving false evidence is a non-cognizable offence i.e police cannot arrest the person who gives false evidence without an arrest warrant. It is a type of bailable offence i.e a person can get bail from the court. He can claim bail as a matter of right. It is non-compoundable means the person who has given false evidence against a person cannot compromise with him and the case can’t be closed and Section 194 to 195A of Indian Penal Code deals with the aggravated form of offences. Aggravate form means serious form. For example, Under Section 302 of Indian Penal Code someone is charged for murder and the person is giving false evidence due to which accused is convicted to a death sentence so this is a form of aggravated form of offence. There are different forms of punishment under Section 194 as:

1) When someone is convicted.

2) When someone is convicted and executed.

Section 195: giving or fabricating false evidence with an intention/knowledge for an offence punishable with imprisonment for seven years or more or life imprisonment. He will be punished as a person convicted of that offence would be liable to be punished. For example, Person X who is accused of dacoity and a person A gives false evidence due to which X is convicted of dacoity. The punishment of dacoity is life imprisonment or rigorous imprisonment of ten years and now if it has been proved that A has given false evidence or fabricated false evidence so he (accused of Section 195) would also get the same punishment that a person who is convicted of dacoity.

Section 195A of Indian Penal Code is added by Amendment Act, 2006. The act must amount to threatening another with an injury to his person, reputation or property or to the person or reputation of anyone in whom that person is interested (eg. family, friends). The intention of the accused person should be to give false evidence. Punishment is imprisonment of either description for a term which may extend to seven years, or with fine, or with both. 

In the case of Santokh Singh vs Izhar Hussain, it was held that test identification of parade is mainly used in rape cases to identify the accused by the victim and if the victim had lied and given a false statement that he was the accused then it is an offence under Section 192 and Section 195. 

Offences Punishable in the Same Way as Giving or Fabricating False Evidence 

Using False Evidence 

A person when uses evidence which he knows it to be false comes under Section 196. Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be fabricated or false evidence.

Meaning of ‘Corruptly’ 

The intention which does not fall in dishonestly or fraudulently but against the spirit of criminal law then it comes under the category of corruptly.

Dr S Dutt Vs State of UP

There was a doctor S Dutta who specialized in the field of medicine and he was called for an expert witness where he was asked to furnish the certificate as he was an expert. Now he had furnished certificate but after some time in enquiry, it was found that it was false. Now the court enquires under which section the accused must be charged. Section 465 talks about dishonesty and Section 471 talks about fraudulently but the conduct of Dr Dutta did not come under dishonestly or fraudulently. Supreme Court held that the conduct of Dr Dutta should be covered under Section 196 under a phrase corruptly. Corruptly is a term (long) which is different from fraudulently and intention.

False Certificate 

Section 197 deals with issuing or signing the false certificates and signing that certificate issued or signed must be one which is required by law. Required by law means through any statutory obligation. The essence of this requirement should be any statute to give a certificate and that certificate which is issued or signed in spite of knowledge of falsity. Medical certificate does not come under the ambit of Section 197. It must be one which is admissible as evidence. The certificate must be false in any material point and knowledge of falsity by the accused should be there.

Using of False Certificate 

Introduction: Section 198 states using a true certificate which is known to be false. Ingredients of section 197 must be fulfilled. A Person who corruptly uses or attempts to use any such certificate as a true certificate, knowing the same to be false in a material point. Section 197 is about to issue or signed the false certificate whereas section 198 is to use the certificate as a true certificate which is false. 

False Declaration 

Section 199 states about a false statement made in declaration which is receivable by law as evidence. A person who gives the statement or declaration should be false. A document making the declaration should be received as evidenced by a court of justice or public servant or other person authorised by law. The intention behind giving a false declaration is that the accused was aware of falsity or he has knowledge that the statement is false. The declaration is not limited to oath/ affirmation.

Dy.GM, ISBT Vs Sudarshan Kumari 

An oath was taken in this case which was taken on the name of a notary which does not exist so it was said that it was a clear violation of Section 199 of Indian Penal Code.

Use of False Declaration

A Declaration or statement which a person gives in front of the court is false or believes not to be true is punished Section 200. A person who corruptly uses or attempts to use as true any such declaration, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence. 

Offences Against Public Justice

Section 201 to 229A explains offences against public justice which is described further.

Causing the Disappearance of Evidence

There are two categories: 

1. Causing disappearance 
2. False information

There both intentions are to screen the offender. Suppose there are two friends A and B. A has committed the murder of X and to hide the body of X and to protect A from the charges B helps him so it falls under Section 201 because of causing the disappearance of evidence. B has the intention to screen the offender.

Section 201 deals with two aspects: 

1. Causing disappearance of evidence.
2. Giving false information about the offence.

Ingredients of Section 201

1. The offence must have committed.
2. Accused must cause the disappearance of the evidence with respect to the offence committed.
3. Gives false information about the offence( accused knowns this to be false).
4. Intention- to screening the offender from legal punishment.

Commission of Offence

Commission of offence is sine non qua that is it is an essential condition or a thing which is necessary.

Palvinder Kaur vs the State of Punjab– In this case, the wife committed the murder of the husband with her boyfriend due to her extramarital affair with him. So the wife and her boyfriend have put husband’s body in the trolley and throw it into the well. After one month when his body was found in post mortem only Potassium cyanide is found and nothing else. They both are charged under Section 302 and 201. But there was no evidence which can prove the prosecution that the murder is done by wife with the help of his boyfriend. So the outcome was that as the principal offence under Section 302 was unable to establish due to which consequently under Section 201 was not establish either because the commission of an offence is sine non qua( essential condition). 

Giving False Information

Kodali Puran Chandra Rao vs Public Prosecutor, Andhra Pradesh There was a river in a village in which floating dead body of a woman was found and 2 km away from that river there was a lake in which another body was found. The Investigation officer whose duty was there made a story that two prostitutes came in the village and they both were raped due to which they committed suicide and without post mortem, he had made the report of the case and made criminate both of them. When he has to report to higher authorities he had made false information and when the matter is referred to the Supreme Court, it was held that although there is no definite evidence on investigating authorities it can be said that they have given false information and a prima facie is established based on the facts and therefore the police officer is held guilty under Section 201 for giving false information. 

Omission to Give Information 

Section 202 states that Intentional omission to give information of offence by a person bound to inform. For example, a police officer is going for his duty from his home to the police station. On his way, he saw that there was a crowd and they all were beating a person. When he inquired he comes to know that the person has stolen something from a shop so that’s why they all were beating but he did not take any action and went away so he would be charged under section 202 because it was his responsibility, legal duty, statutory obligation under Criminal Procedural code, to report any cognizable offence when it comes under his knowledge and he should take any action. 

Ingredients of Omission to give information

1) There should be knowledge or reasons to believe that an offence has been committed.

2) The person should intentionally omit to give any information regarding that offence. 

3) The person is legally bound to give still he omits to give information.

4) He shall be punished with imprisonment of either description for a term which may extend to six months or with fine or with both.

Intentional Omission to Give Information 

There are many times Bonafide mistakes are done that are with utmost good faith. So at that time, the intentional omission is avoided if they are committed with a bonafide mistake.

Harishchandra Singh Sajjan Singh Rathod Vs State of Gujarat

It was a case related to Judicial torture in which a police officer has kept a person in judicial custody and had given torture due to which he has got many injuries so police office has sent him to a nearby hospital but till the time the person could reach the hospital. He died and the case was charged under 304(2) i.e culpable homicide not amounting to murder but Supreme Court held that culpable homicide is not applicable because of two reasons first is a commission of offence has not been established and a second the legal duty to report the offence and intentional omission were not there. 

Legal Obligation to Give Information 

There should be a legal obligation to give information then only Section 202 will be a trigger. Until and unless there is no legal obligation to give information a person cannot fall under Section 202.

Giving False Information About an Offence 

Section 203 is giving false information respected an offence committed that is: 

1) Whoever knowing or having reason to believe that an offence has been committed. 

2) Gives any information respecting that offence.

3) Which he knows or believes to be false.

4) Shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.

For example, A person ‘X’ has made complain in a police station that in his house 10 lakh of jewellery, TV and any other movable property had been stolen although TV and other property were stolen he had given false information related to 10 lakh jewellery. He will be charged under Section 203.

Ingredients of Section 203 

1) The offence has been committed.

2) Accused know or he had reason to believe that such an offence has been committed.

3) He gave the information to that offence.

4) The information so given was false and 

5) When he gave such information he knew or believed it to be false.

The offence under Section 203 is non-cognizable, but warrant may issue in the first instance. It is bailable but not compoundable and triable by any Magistrate. Sections 201, 202 and 203 are related but different. All these three sections deal with various aspects of offences dealing with the conduct of a person after the commission of the offence.

Impersonation Abuse of Process of Court of Justice 

It is related to the procedural aspect of a criminal proceeding. Section 206 to 210 deals with limited things only. For example, your home in Delhi and the court had given orders to seize the property so to save your home you have agreed with a third party X and sell it to X with the intention that court cannot seize your home and you can say that it is not your property and it belongs to X, then the person will be liable under Section 206.

Now if in the same example X had taken Dhruv’s property so that he can save his property from fortified seizure and he can return his property after some time then X will be charged under Section 207 and Dhruv will be charged under Section 206.

Section 208: Fraudulently suffering decree for sum not due. Suppose there is the movable property of 10 lakh that is car and anubhav had taken a loan from a bank to buy a car and now he is unable to pay EMI of the car and therefore the company had sent notice to him that either he pays EMI to them or his car would be seized. but anubhav had refused to pay so the company had taken notice from the court of justice. Now anubhav said to her friend Simran to file a case against him of Rs 11 lakh and anubhav fraudulently lost the case and asked that Simran can take her car and she took it so that it can be saved from the company and after sometime when the case would be closed he will take his car and give some money to her, therefore, anubhav will be charged under section 208.

Section 210 Fraudulently obtaining a decree for a sum not due. In the above example, Simran will be charged under section 210.

Section 209 Dishonesty making a false claim in court. Whoever making fraudulently or dishonestly a false claim in court to injure or annoy a person. The punishment is imprisonment of two years and shall also be liable to fine. 

Conclusion

False evidence is information given by a person to divert the verdict in a court case. False evidence is also known as forged, fabricated, tainted evidence. The intention to give false evidence is to procure the conviction and to make the innocent guilty. Section 191 explains about giving false evidence and section 192 explains about fabricating false evidence. Chapter 11 of the Indian Penal Code has set out the provision relating to giving and fabricating false evidence and offences against public justice. 

References

Indian Penal Code, 1860

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This article is written by M.S.Sri Sai Kamalini, a fourth-year student currently pursuing B.A.LLB (Hons) from School of law, SASTRA. This is an exhaustive article which deals with the various features of a fair trial.

Introduction

“Lex uno ore omnes alloquitur” which means that everyone is equal before the eyes of the law which is an important principle which forms the basis of judicial proceedings across the world. The law treats everyone equally and this principle is enshrined in various provisions of the Indian Constitution. Article 14 of the Indian Constitution exclusively deals with the Right to Equality. Trials are an indispensable part of any proceeding. Conducting fair trails is an important aspect of the law which ensures equality.

Concept of a fair trial

The concept of a fair trial is not just a right provided in our country but it is also guaranteed by various other legislations all over the world. Article 6 of the European Convention on Human Rights deals with the Right to a fair trial. According to this Article, everyone is entitled to a fair and public hearing within a reasonable time. The trial must be conducted by an independent and impartial tribunal established by law. The African Charter of Human Rights protects the dignity of humans and prevents exploitation under Article 5. Article 6 of the African Charter of Human Rights guarantees individual liberty and security to a person. The right to a fair trial is guaranteed under Article 7 which includes various rights like:

• Right to appeal to the competent jurisdiction.
• Right to defence.
• Right to be tried.
• Right to be presumed innocent until proven otherwise.

Article 14 of the International Convention on Civil and Political Rights (ICCPR) guarantees the right to a fair trial and Article 16 provides a right to recognition everywhere as a person before the law. Article 10 of the Universal Declaration of Human Rights (UDHR), which guarantees the right to a fair trial. The provisions related to a fair trial in the International Convention on Civil and Political Rights (ICCPR) is more exhaustive and detailed than the provisions in the Universal Declaration of Human Rights (UDHR).

Adversary system

The Court proceedings in the countries which follow common law are adversarial in nature. The right to equality is protected in this system as both parties have an equal voice of representation. In this system, the counsels of both the parties defend their parties and establish the facts which are supporting them. The Judge decides on the behalf of the facts mentioned, whereas in the inquisitorial system the involvement of judges are more. The court is actively involved in collecting evidence. In the inquisitorial system, the judges themselves might conduct the investigation and in certain scenarios, sometimes it can be biased. The inquisitorial system is mostly used in the civil legal systems like France and Italy.

Trials

Trials are an inevitable aspect to bring out justice. Trials have to be conducted properly following all the procedures and steps so that it would be fair and free from influences. There is no proper definition of the term trial in the Code of Criminal Procedure,1973. Trials are an examination of offence by the judicial bodies which have jurisdiction over it. Section 225 of the Code of Criminal Procedure,1973 mandates that in every trial before the Court of Session, the Public Prosecutor will conduct the prosecution. Section 304 of the Code of Criminal Procedure,1973 deals provides that it is the duty of the State to provide legal assistance to an accused if the Court feels that the accused has no sufficient means to appoint a pleader for his defence. The Court itself will appoint a pleader in that case at the expense of the State. This provision ensures that the trial is not biased as there is equal representation from both sides. The High Court with the previous approval of the State Government makes rules under various aspects for:

• The mode of selecting pleaders for defence;
• The facilities to be allowed to such pleaders by the Courts;
• The fee which is payable to such pleaders by the Government.

Presumption of Innocence

Presumption of innocence is an important factor to conduct a fair trial as it prevents wrongful convictions. This presumption of innocence is based on the Blackstone’s ratio, which is the idea that “It is better that ten guilty persons escape than that one innocent suffer”. This concept of presumption of innocence is also derived from the Latin term ‘Ei incumbit probatio qui dicit, non qui negat’, which basically means the burden of proof is on the one who declares, not on the one who denies. It is the duty of the prosecution to prove that the accused is guilty with proper evidence beyond any reasonable doubts.

Article 14(2) of the International Convention on Civil and Political Rights also provides that everyone who is accused is presumed to be innocent as long as it is proved otherwise. Article 11 of the Universal Declaration of Human Rights, also deals with the presumption of innocence.

The same principle is also enshrined under Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

This principle is also followed in various cases decided by the Indian Courts, in the case of Dataram Singh v State of Uttar Pradesh, it was held that the individual freedom cannot be cut off for an infinite period as long as the person is proved guilty. This freedom can only be affected when the guilt is proved. There are certain provisions in the Indian Evidence Act like Section 111A which acts as an exception for this presumption of innocence. According to this Section, if a person has tampered the peace and security in certain places, or if they commit any offences under Section 121, Section 121 A, Section 122 and Section 123 of the Indian Penal Code, then they are not presumed to be innocent. Section 121 of the Indian Penal Code deals with the offence of waging war or planning to war against the Government of India. Section 121A of the Indian Penal Code punishes the person who conspires to commit the offence of war against the Government. Section 122 deals with the offence of collecting arms with an intention to wage war against the Government. Section 123 deals with the offence of concealing certain facts which would facilitate the waging of war. There is also an exception to the presumption of innocence in offences like dowry death. 

Independent, Impartial and Competent Judges

The independence of the judiciary is an indispensable aspect of every fair trial. The separation of powers protects the independence of the judiciary. The competency of judges is an important factor that will decide the fate of the judiciary. If the judges appointed are incompetent then the whole process of trial is damaged. Article 217 of the Indian Constitution deals with the appointment of the Judges of the High Court. According to this article, there are various qualifications that have to be followed while appointing the Judges like,

• The Judges of the High Court are appointed by the President after consultation with the Chief Justice of India.
• The person appointed has to be a Citizen of India.
• The person must have held a judicial office for at least ten years in India.
• The person has to be an advocate of a High Court or of two or more such Courts in succession for at least ten years.

There were recommendations to form the National Judicial Appointments Commission under the 99th amendment by bringing in a new Article 124A and the main functions of the commission would be,

• To recommend persons for an appointment for the post of Chief Justice of India and Judges of various courts in India.
• To ensure that the person recommended has all the eligibility and integrity.
• To recommend persons for transfer from one Court to another Court.

The Supreme Court struck down the amendment and held it to be unconstitutional and thus the old collegium system of appointing the Judges was retained. The Supreme Court later brought in new developments to bring transparency in the collegium system like the Central Government will not prepare a draft memorandum for judicial appointment.

Venue of Trial

The venue of the trial also plays an important role in ensuring the fairness of the trial. The Court has to be competent to deal with the cases. Section 177 of the Code of Criminal Procedure,1973 provides that the ordinary place of enquiry or trial would be the Court within whose local jurisdiction it was committed. Section 178 of the Code of Criminal Procedure,1973 deals with the place of trial. According to this Section, the jurisdiction can be changed in certain situations like when it is uncertain in which of several local areas an offence is completed or when an offence is committed partly in one place and partly in another place and when an offence is a continuing one. According to Section 181 of the Code of Criminal Procedure, 1973 sometimes the place of a trial depends on certain types of offences, for example, offences like kidnapping or abduction can be tried by the Court where the person was kidnapped or abducted.

Right of the Accused to Know the Accusation

Article 22 of the Indian Constitution provides that no person can be detained in custody without giving proper information. The Sixth Amendment of the Constitution of the United States also provides this right of the accused to know the accusation. The accused should be aware of the reason why he is being detained. Section 50 of the Code of Criminal Procedure also provides that it is the right of every accused to be informed about the various grounds of arrest. The police officer has to inform the person of the various reasons for arrest if the arrest is done without a warrant.

Accused Person to be tried in his Presence

It is necessary for the accused to be tried in his presence, however, there are certain situations where the magistrate can dispense the attendance after considering relevant factors. Section 317 of the Code of Criminal Procedure,1973 grants the Magistrate this power. The Magistrate can only dispense the attendance only if it does not affect the process of the trial in any manner. This principle is also supported by Article 14 of the Indian Constitution which guarantees equality.

Evidence to be taken in the Presence of Accused

Section 273 of the Code of Criminal Procedure,1973 provides that the evidence should be taken in the presence of the accused. This provision should not be followed only in rare situations like cases relating to the rape of a minor woman. Section 299 of the Code of Criminal Procedure,1973 provides the conditions to record evidence in the absence of the accused.

Right of accused person to cross-examine prosecution witnesses and to produce evidence in defence

The accused person has the right to cross-examine any number of witnesses so that it would ensure the fairness of the trial. In the case of  Mohd. Hussain Julfikar Ali v. The State (Govt. of NCT) Delhi, the appellant was not provided with an opportunity to cross-examine the fifty-six witnesses. Only one witness was cross-examined to complete the formality. Hence the appellant’s conviction and sentence was set aside for the same reasons.

Right of the Accused Person to have an Expeditious Trial

The concept of speedy trial increases the public confidence in the judiciary. The concept of speedy trial is enshrined in Article 21 of the Indian Constitution. In the case of Babu Singh v State of Uttar Pradesh, it was said that the speedy trial is also part of the fair trial. In the case of Kartar Singh v State of Punjab, it was declared that the speedy trial is a part of the right to life and personal liberty. The same principle is also enforced in various other cases like Husainera Khatoon and others v. Home Secretary, State of Bihar. The undue delay must be avoided and it must be also ensured that all the proceedings of the trial are followed properly.

The doctrine of “Autrefois Convict” and “Autrefois Acquit”

The principle autrefois convict means ‘formerly convicted’ and the principle autrefois acquit means ‘formerly acquitted’.The same principle is also accepted by the various Australian courts by the name “issue-estoppel”.Autrefois convict is a defence plea that is followed and accepted by the common law countries. This plea ensures that no person is convicted twice for the same offence. This plea will stop the entire proceeding. The concept of double jeopardy is also prevented by our Indian Constitution. Section 300 of the Code of Criminal Procedure,1973 provides that the person once convicted or acquitted not to be tried for the same offence. There are certain exceptions to the above-mentioned rule in subsection (2) and (4) of Section 300 of the Code of Criminal Procedure,1973. According to this section the person acquitted or convicted can be tried again if the prior trial was not done by a competent court. The person acquitted or convicted can be tried again with the consent of the State Government for any different offence for which a separate charge has been made against the accused in the formal trial.

Conclusion

The Right to get a fair trial is an essential right of every accused. The concept of fair trial brings confidence in the public and the people start to believe in the judiciary. It is necessary to follow every above-mentioned aspect in order to ensure that the trial is free from biases. These rights are not just domestic rights but also the various international conventions guarantee these rights. Thus the concept of a fair trial is an essential aspect of every proceeding.

References

• https://blog.ipleaders.in/trial-before-a-cour-of-session/
• http://devgan.in/crpc/index.php?q=300&a=2
• https://www.echr.coe.int/Documents/Convention_ENG.pdf

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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This article is written by Akella Poornima, a 2nd-year law student of LL.B 3 yrs, Symbiosis Law School, Pune. This article talks about the landmark case of Maneka Gandhi and its impact on law and society.

Summary of Facts

The petitioner (Maneka Gandhi) was a journalist whose passport was issued on June 1, 1976, under the Passport Act, 1967. Later on July 2nd, 1977, the Regional Passport Officer, New Delhi, had ordered the petitioner to surrender her passport by a letter posted.

On being asked about the reasons for her passport confiscation, The Ministry of External Affairs declined to produce any reasons “in the interest of the general public.”

Therefore, the petitioner had filed a writ petition under Article 32 of the Constitution of India stating the seize of her passport as the violation of her fundamental rights; specifically Article 14 (Right to Equality), Article 19 (Right to Freedom of Speech and Expression) and Article 21 (Right to Life and Liberty) guaranteed by the Constitution of India.

The respondent counterfeited stating that the petitioner was required to be present in connection with the proceedings which was going on, before a Commission of Inquiry.

Identification of Parties (including the name of the judges)

• Petitioner: Maneka Gandhi
• Respondent: Union Of India And Other
• Date Of Judgment: January 25, 1978
• Bench: Before M.H. Beg, C.J., Y.V. Chandrachud, V.R. Krishna Iyer, P.N. Bhagwati, N.L. Untwalia, S. Murtaza Fazal Ali and P.S Kailasam.

Issues before the Court

• Whether the Fundamental Rights are absolute or conditional and what is the extent of the territory of such Fundamental Rights provided to the citizens by the Constitution of India?
• Whether ‘Right to Travel Abroad’ is protected under the umbrella of Article 21.
• What is the connection between the rights guaranteed under Articles 14, 19 and 21 of the Constitution of India?
• Determining the scope of “Procedure established by Law”.
• Whether the provision laid down in Section 10(3)(c) of the Passport Act, 1967 is violative of Fundamental Rights and if it is, whether such legislation is a concrete Law?
• Whether the Impugned order of Regional Passport Officer is in contravention of principles of natural justice?

Contentions by Parties on issues

• Petitioner’s Contention

1. The ‘Right to Travel Abroad’ is a derivative of the right provided under ‘personal liberty’ and no citizen can be deprived of this right except according to the procedure prescribed by law. Also, the Passports Act, 1967 does not prescribe any procedure for confiscating or revoking or impounding a passport of its holder. Hence, it is unreasonable and arbitrary. 
2. Further, The Central Government acted in violation of Article 21 of the Constitution of India by not giving an opportunity to the petitioner to be heard. Hence, the true interpretation of Article 21, as well as its nature and protection, are required to be laid down. 
3. Any procedure established by law is required to be free of arbitrariness and must comply with the “principles of natural justice”.
4. To upkeep the intention of the Constituent Assembly and to give effect to the spirit of our constitution, Fundamental Rights should be read in consonance with each other and in this case, Articles 14, 19 and 21 of the Constitution of India must be read together.
5. Fundamental rights are entitled to every citizen by virtue of being a human and is guaranteed against being exploited by the state. Hence, these fundamental rights should be wide-ranged and comprehensive to provide optimum protection.
6. To have a well-ordered and civilized society, the freedom guaranteed to its citizens must be in regulated form and therefore, reasonable restrictions were provided by the constitutional assembly from clauses (2) to (6) in Article 19 of the Constitution of India. But, the laid restrictions do not provide any ground to be executed in this case.
7. Article 22 confers protection against arrest and detention in certain cases. In this case, the government by confiscating the passport of the petitioner without providing her any reasons for doing so has illegally detained her within the country.
8. In Kharak Singh v. the State of U.P, it was held that the term “personal liberty” is used in the constitution as a compendium including all the varieties of rights in relation to personal liberty whether or not included in several clauses of Article 19(1).
9. An essential constituent of Natural Justice is “Audi Alteram Partem” i.e., given a chance to be heard, was not granted to the petitioner.
10. Passports Act 1967 violates the ‘Right to Life and Liberty’ and hence is ultra virus. The petitioner was restrained from traveling abroad by virtue of the provision in Section 10(3)(c) of the Act of 1967.

• Respondents contentions

1. The Attorney General of India argued that the ‘Right to Travel Abroad’ was never covered under any clauses of article 19(1) and hence, Article 19 is independent of proving the reasonableness of the actions taken by the Central Government. 
2. The Passport Law was not made to blow away the Fundamental Rights in any manner. Also, the Government should not be compelled to state its grounds for seizing or impounding someone’s passport for the public good and national safety. Therefore, the law should not be struck down even if it overflowed Article 19.
3. Further, the petitioner was required to appear before a committee for an inquiry and hence, her passport was impounded.
4. Reiterating the principle laid down in A.K Gopalan, the respondent contended that the word law under Article 21 cannot be comprehended in the light fundamental rules of natural justice.
5. Further, the principles of natural justice are vague and ambiguous. Therefore, the constitution should not refer to such vague and ambiguous provisions as a part of it.
6. Article 21 is very wide and it also contains in itself, the provisions of Articles 14 & 19. However, any law can only be termed unconstitutional to Article 21 when it directly infringes Article 14 & 19. Hence, passport law is not unconstitutional.
7. Article 21 in its language contains “procedure established by law” & such procedure need not pass the test of reasonability.
8. The constitutional makers while drafting this constitution had debated at length on American “due process of law” & British “procedure established by law”. The conspicuous absence of the due process of law from the Constitutional provisions reflects the mind of the framers of this constitution. The mind and spirit of the framers must be protected and respected.

Difference between “procedure established by law” and “due process of law”

A.K. Gopalan’s case has been the primer case where the Supreme Court declined to consider “procedure established by law” in consonance with “due process of law”. But, in 1978 this case was turned down in Maneka Gandhi where the Supreme  Court itself stated the act of confiscating her passport as arbitrary. Justice Kania referring to A.K Gopalan had said that the term “due process” mentioned in the article had limited the powers of the judiciary, to interpret it further and seek its reasonableness. But, through Maneka Gandhi a new precedent was set by broadening the vision of these two phrases.

“Procedure established by Law”

Inlay man’s terms it is defined as a law that is duly enacted by the legislature to be held valid and be mandated to be followed, provided if it affirms correct procedure. This doctrine has the power to withdraw from any person of his life or personal liberty according to the procedure established by law.  In short, it means that any law duly enacted is valid even if it is contrary to the principles of justice and equity.

“Due Process of Law”

It is a doctrine that requires to check the efficiency of it as well as fairness and non-arbitrariness. Apex court can declare any law null and void if it is not just, fair and arbitrary. This doctrine safeguards all kinds of individual rights. 

Judgment (Ratio and Obiter)

The judgment expanded the scope of Article 21 exponentially and became a landmark case in the legal world. The majority judgment was written by Justice Bhagwati, Untwalia & Fazl Ali JJ. while Chandrachud, Iyer & Beg (CJ) wrote separate but concurring statements.

It was held that:

1. 1. Before the enactment of the Passport Act 1967, there was no law regulating the passport whenever any person wanted to leave his native place and settle abroad. Also, the executives were entirely discretionary while issuing the passports in an unguided and unchallenged manner. In Satwant Singh Sawhney v. D Ramarathnam, the SC stated that – “personal liberty” in its ambit, also includes the right of locomotion and travel abroad. Hence, no person can be deprived of such rights, except through procedures established by law. Since the State had not made any law regarding the regulation or prohibiting the rights of a person in such a case, the confiscation of the petitioner’s passport is in violation of Article 21 and its grounds being unchallenged and arbitrary, it is also violative of Article 14.
   2. Further, clause (c) of section 10(3) of the Passports Act, 1967 provides that when the state finds it necessary to seize the passport or do any such action in the interests of sovereignty and integrity of the nation, its security, its friendly relations with foreign countries, or for the interests of the general public, the authority is required to record in writing the reason of such act and on-demand furnish a copy of that record to the holder of the passport. 
   3. The Central Government never did disclose any reasons for impounding the petitioner’s passport rather she was told that the act was done in “the interests of the general public” whereas it was found out that her presence was felt required by the respondents for the proceedings before a commission of inquiry. The reason was given explicit that it was not really necessarily done in the public interests and no ordinary person would understand the reasons for not disclosing this information or the grounds of her passport confiscation. 
   4. “The fundamental rights conferred in Part III of the Constitution are not distinctive nor mutually exclusive.” Any law depriving a person of his personal liberty has to stand a test of one or more of the fundamental rights conferred under Article 19.  When referring to Article 14, “ex-hypothesi” must be tested. The concept of reasonableness must be projected in the procedure.
   5. The phrase used in Article 21 is “procedure established by law” instead of “due process of law” which is said to have procedures that are free from arbitrariness and irrationality.
   6. There is a clear infringement of the basic ingredient of principles of natural justice i.e., audi alteram partem and hence, it cannot be condemned as unfair and unjust even when a statute is silent on it. 
   7. Section 10(3)(c) of the Passports Act 1967, is not violative of any fundamental rights, especially Article 14. In the present case, the petitioner is not discriminated in any manner under Article 14 because the statute provided
   8. unrestricted powers to the authorities. the ground of “in the interests of the general public” is not vague and undefined, rather it is protected by certain guidelines which can be borrowed from Article 19.
   9. It is true that fundamental rights are sought in case of violation of any rights of an individual and when the State had violated it. But that does not mean, Right to Freedom of Speech and Expression is exercisable only in India and not outside. Merely because the state’s action is restricted to its territory, it does not mean that Fundamental Rights are also restricted in a similar manner.
   10. It is possible that certain rights related to human values are protected by fundamental rights even if it is not explicitly written in our Constitution. For example, Freedom of the press is covered under Article 19(1)(a) even though it is not specifically mentioned there.
   11. The right to go abroad is not a part of the Right to Free Speech and Expression as both have different natures and characters. 
   12. A.K Gopalan was overruled stating that there is a unique relationship between the provisions of Article 14, 19 & 21 and every law must pass the tests of the said provisions. Earlier in Gopalan, the majority held that these provisions in itself are mutually exclusive. Therefore, to correct its earlier mistake the court held that these provisions are not mutually exclusive and are dependent on each other.

Critical Analysis of the Judgement

Overruling A.K Gopalan’s decision was appreciated nationwide and this case had become a landmark case in history since it broadened the scope of fundamental rights.

The respondent’s contention that any law is valid and legit until it is repealed was highly criticized by judges.

Also, by providing a liberal interpretation to Maneka Gandhi, the courts had set a benchmark for coming generations to seek their basic rights whether or not explicitly mentioned under part III of the constitution.

Today, the courts have successfully interpreted different cases in order to establish socio-economic and cultural right under the umbrella of Article 21 such as –  Right to Clean Air, Right to Clean Water, Right to freedom from Noise Pollution, Speedy Trial, Legal Aid, Right to Livelihood, Right to Food, Right to Medical Care, Right to Clean Environment, etc.as a part of Right to Life & Personal liberty.

The judgment opened new dimensions in the judicial activism and PIL’s were appreciated and judges took interests in liberal interpretation wherever it was needed in the prevailing justice.

Conclusion

After this case, the Supreme court became the watchdog to protect the essence of the constitution and safeguard the intention of the constitutional assembly who made it. The majority of judges opined that any legislation or section should be just, fair and reasonable and in its absence even the established or prevailed law can be considered arbitrary. 

The judges mandated that any law which deprives a person of his personal liberty should stand the test of Article 21, 14 as well as 19 of the constitution. Also, principles of natural justice are sheltered under article 21 and therefore, no person is deprived of his voice to be heard inside the court. Further, to declare any state action or legislation invalid, the “golden triangle” i.e, articles 14, 19 and 21 must be invoked.

References

1. https://lawyersnotes.com/blog/maneka-gandhi-vs-union-of-india/
2. http://lawtimesjournal.in/maneka-gandhi-vs-union-of-india/
3. Scc online
4. https://indiankanoon.org/doc/1857950/

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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This article is written by M.S.Sri Sai Kamalini, a fourth-year student currently pursuing B.A.LLB (Hons) from School of law, SASTRA. This is an exhaustive article which deals with the various provisions relating to punishment for committing murder.

Introduction

Murder is one of the heinous crime which shocks the entire human race. It affects the various aspects of society irrespective of gender. Murder is considered as “malum in se” that is the act that is evil within itself. According to the statistics, 371 people were known to be under death sentence at the end of the year 2018.

Scope of Section 302

Section 302 of the Indian Penal Code provides the punishment for murder. According to this Section whoever commits murder is punished with:

• Death;
• Life imprisonment;
• The convict shall also be liable to fine.

Section 300 of the Indian Penal Code defines murder. According to this section, culpable homicide is considered murder:

• If the act is done with an intention to cause death.
• If it is done with the intention of causing bodily injury which the offender has the knowledge that it would cause death.
• If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be in­flicted is sufficient in the ordinary course of nature to cause death.
• If the person committing the act has that knowledge that it is very dangerous and it might cause death or bodily injury but still commits the act that would amount to murder.

Section 300 also provides exceptions to situations where the culpable homicide is not considered as the murder in certain situations like:

• When the act is done due to grave and sudden provocation, causes the death of another person who gave the provocation;
• When the act is done by the public servant who is authorized to do the act in order to promote public justice;
• When the act is done for defending himself from further harm(right to private defence);
• When the act is done with the consent of the victim;
• When the act is a result of a sudden fight.

 If the action does not come within the exception provided under Section 300, then it would be punished according to Section 302. 

Life Imprisonment Rule, Death Sentence an Exception

This celebrated rule was brought after Bachar Singh’s case. In this case, it was mandated that the death sentence can only be awarded for the rarest of rare cases. This principle was again considered in the case of Raju Jagdish Paswan v. The State of Maharashtra. In this case, the appellant was awarded death sentence by the trial court for committing rape of nine-year old kid. The High Court also awarded the same sentence and on appeal, the Supreme Court reduced the punishment since the death sentence can be awarded only on the rarest scenarios. The Supreme Court held that life Imprisonment is a rule whereas the death sentence is an exception. The Supreme Court did not award the death penalty in this case for various reasons such as: 

• The murder was not pre-planned.
• The person was not a continuous threat to society.
• There was no evidence by the State to prove that the person cannot be reformed and 
• rehabilitated.
• The appellant was very young and was only 22 years old while committing the crime.

The basic principle is that human life is very valuable and the death sentence has to be awarded only when it is mandatory and there is no other choice of punishment and also in cases where the range of crime committed is very heinous.

Choice of Sentence

The Court considers various factors before deciding the choice of sentences. The Court chooses the mode of punishment like the death penalty or life imprisonment only after proper investigation and after the crime is proved beyond any reasonable doubts. There are no separate sentencing guidelines in India and the need for the guidelines is mentioned in various cases. In the case of State of Punjab v. Prem Sagar & Ors, it was noted that there is no judiciary driven guidelines for awarding sentences. In the State of Madhya Pradesh v. Bablu Natt, it was said that the choice of sentences depends on the facts and circumstances of the case.

Death Sentence: Legislative Mandate 

The first case which questioned the constitutional validity of the death penalty in the case of Jagmohan Singh v State of Uttar Pradesh where the death penalty was challenged for various reasons like:

• The death penalty is violative of right to life guaranteed under Article 21.
• It affects the right to equality guaranteed under Article 14 since awarding the death penalty is in the complete discretion of the Judges.
• It also affects the various freedoms guaranteed under Article 19.
• It was also opposed as the law does not provide any mandate to award death sentences.

In the case of Rajendra Prasad v. State of Uttar Pradesh, it was discussed what are the special situations to be considered before awarding the death penalty. The Court held that we should not just consider the nature of the crime but also importance must be given to various factors of criminals in order to award the death penalty. The case of Bachan Singh v State of Punjab, questioned the constitutional validity of Section 302 as it was violative of Article 19. The Court held that it is not violative of Article 19 as there is no freedom to commit murder. In the Bachan Singh case, the court introduced the “rarest of the rare” guidelines. The court quoted that “the expression ‘special reasons‘ in the context of this provision, obviously means ’exceptional reasons‘ founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal”.

Awarding Death Sentence: General Guidelines and Principles provided by the law commission reports

The death sentences are usually awarded to the capital offenses. There are various capital offenses mentioned under the Indian Penal Code, under various sections like:

The death sentence if awarded should be executed properly after following various procedures mentioned in the Code of Criminal Procedure and the prison manuals. The Court will consider various factors to decide the sentence like:

• Chance of reformation;
• Age of accused;
• The mental unsoundness of the accused;
• The chance of threat to society in the future because of the accused;
• The provocation of another person due to which the accused committed the crime;
• Coercion of another person due to which the accused committed the crime.

Delay in Execution of Death Sentence—An Extenuating Factor

The delay in the execution of death sentence poses a lot of issues in various aspects as it affects the entire process of justice as it affects both the accused and the victim. The Supreme Court in the case of Triveniben v. the State of Gujarat held that only executive delay can be considered violative of Article 21 of the Indian constitution but the judicial delay cannot be considered as violative of Article 21. In the case of T.V Vatheeswaran v. State of Tamil Nadu, the Court held that a delay in the execution of the sentence that exceeded two years would be a violation of procedure guaranteed by Article 21.

However, in the case of Sher Singh v State of Punjab, it was held that the delay can be a ground for invoking Article 21, but there is no binding rule that delay would entitle a prisoner to quash the sentence of death. In the case of Shatrughan Chauhan v Union of India, it was held that various guidelines should be brought out to save the interest of the death row convicts. If there is an inordinate delay in execution, the condemned prisoner is entitled to approach the court requesting to examine whether it is just and fair to allow the sentence of death to be executed.

Conviction of a Pregnant Woman 

Section 416 of the Code of Criminal Procedure, 1973 deals with the postponement of the capital sentences on the pregnant woman. According to this Section, if a woman convicted is found to be pregnant, the High Court can:

• Postpone the execution of the sentence;
• The High Court can also reduce the sentence to imprisonment for life.

The rights of the unborn child are protected under this Section. The main logic behind this Section is that the child who did not make any mistake shouldn’t be killed. The pregnancy should be proved with proper medical reports and examinations.

Conviction of a Minor

The children are the future of every nation, so it has to be carefully evaluated before providing them major punishments like the death penalty and life imprisonment for heinous crimes. The conviction should be based on the principles of law of evidence. Justice Lokur, who is the head of the chairman of the Supreme Court Juvenile Justice Committee, stated that “Every as said that juvenile convicts cannot be handed down capital punishment in every case pertaining to heinous crimes such as rape and murder. He stated that every person who is of around 17 years or close to 18 years cannot be awarded the death penalty just because they committed a heinous crime, a proper conclusion must be achieved after going through all the evidence which are related to the case”.

According to the Juvenile Justice (Care and Protection of Children) Act 2000, the individuals who were under the age of 18 at the time of the crime cannot be executed. The Juvenile Justice Act of 2015 replaced the act that was in 2000. The act which was amended allows the persons of the age group from 16 years to 18 years can be tried as adults if they commit any heinous crimes like rape and murder. The main reason for passing the bill was the Delhi rape case, where one of the accused was 17 years old when committing the offence. He was tried separately by the juvenile court and was awarded only three years of imprisonment. This raised a lot of controversies and mandated there should be an amendment in the age of the juveniles who are committing heinous crimes.

Sentence to Co-accused

The persons who are accused of the same crime will be awarded the same amount of punishment. The confession of the co-accused is provided under Section 30 in the Indian Evidence Act. The confession made by the co-accused has a proper evidentiary value and it affects himself and also the other accused. The parity principle ensures that a sentence should be similar to the same offenders or persons convicted of the same crime. This principle ensures fairness and equality while awarding the sentences.

Imprisonment for Life

There are three types of imprisonment namely solitary, rigorous and simple imprisonment. The imprisonment for life means the person is imprisoned for his lifetime. Section 53 of the Indian Penal Code provides that there can be certain types of punishments where imprisonment for life is also an accepted form of punishment. The term transportation for life was replaced with the term imprisonment for life in the year 1955. According to Section 302, imprisonment for life is also a punishment for committing murder. The imprisonment for life is not a violent punishment like the death penalty but it still affects the accused and the society. 

Section 55 of the Indian Penal Code deals with the commutation of sentences in cases of imprisonment for life. According to this Section, it is mentioned that the term of imprisonment must not less than fourteen years or it can be any other term that has to be decided by the appropriate government. There is a misconceived idea that imprisonment for life is only for fourteen years but it is not true in every case. There are certain special situations where the convict is released after fourteen years after proper consideration by the appropriate government, or else his term of imprisonment extends for life.

Punishment for Murder by a Life-Convict

Section 303 of the Indian Penal Code provides that any person who is sentenced with life imprisonment commits murder then the person shall be punished to death. The constitutional validity of this Section was questioned in the case of Mithu v. State of Punjab. This Section was held to be unconstitutional in this case as the court  held that awarding mandatory death penalty for a life convict is unreasonable and arbitrary, for various reasons like:

• The life convict is already exposed to a lot of stress in the jail premises;
• There is no justification and intelligible differentia for prescribing a mandatory sentence of death for the offence of murder committed inside or outside the prison by a person who is under the sentence of life imprisonment;
• A standardised mandatory sentence and that too in the form of a sentence of death fails to take into account the facts and circumstances of each particular case.

Punishment for Culpable Homicide

Culpable homicide is different from murder and the difference is enumerated in the Indian Penal Code. The Indian Penal Code considers the culpable homicide to be genus whereas the murder is a species. To put it in a nutshell, “all murders are culpable homicide but not all culpable homicide are murders”. The intention to cause death is the main difference between murder and culpable homicide. Culpable homicide is not considered as the murder if it comes under any one of the five exceptions mentioned under Section 300. Section 304 of the Indian Penal Code provides various punishments for culpable homicide not amounting to murder. The various punishments provided for culpable homicide not amounting to murder are:

• Imprisonment for life;
• Imprisonment of either description which may be extended up to ten years;
• Fine.

Proposals for Reform

There are various reforms which need to be done in order to make these provisions more effective like:

• There have to be proper uniform judicial guidelines that would make the process of deciding the sentences.
• The trial can be expeditious also but it has to be noted that all the procedures of the Code of Criminal Procedure are followed.
• There have to be proper guidelines for awarding death penalty.
• Various new provisions have to be brought out which would deal with the reformative form of punishments.
• Section 303 is held to be unconstitutional but still, it is not removed from the act, so there needs to be a necessary amendment in that aspect.

Conclusion

The Court understands the value of life and there are only three executions in recent times. The Court has to award the death penalty only in rare situations if the accused is a threat to the society or else the Court has all the rights to reduce the punishment. It would also be a great advancement if various Courts try to bring out uniform guidelines to award punishment.

References

• https://blog.ipleaders.in/death-penalty/
• https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf
• http://lawcommissionofindia.nic.in/cpds1.pdf
• http://lawcommissionofindia.nic.in/reports/report262.pdf

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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This article is written by Sahitya Gali, pursuing a Certificate Course in Advanced Corporate Taxation from LawSikho.com. Here she discusses “How do Proceedings before Settlement Commission Work?”.

What is Settlement Commission? 

The Department of Revenue introduces the Settlement Commission as a statutory body established by not one statute but two provisions i.e. Section 245 B of the Income-tax Act, 1961 (Chapter XIX-A), and Section 22B of the Wealth Tax Act, 1957. These provisions are an effect of the Wanchoo Committee Report which aimed at full disclosure of income and immunity against criminal proceedings for prompt and fair settlements in tax-related applications. Therefore, the Settlement Commission is supposed to address and set terms of settlement for both income tax and wealth tax-related matters. 

The establishment took place in and is as old as 1976. Therefore it is a statutory body as identified by the Department of Revenue on its website.

The Department of Revenue has introduced the Settlement Commission on its website, to fail to explain the duties and powers of the Settlement Commission in detail. It has listed Settlement Commission with other kinds of statutory bodies those which prescribes terms of settlement of similar tax-related aggrieved applications i.e. the Customs & Central Excise Settlement Commission, and the Income Tax Ombudsman 2006, although their functions and duties vary from the Settlement Commission.

Constitution

Delhi has the principal bench constituted with several other additional benches. Mumbai has two additional benches while Kolkata and Chennai constitute a bench in each. Therefore, in total, four main cities have managed to establish a Settlement Commission i.e. New Delhi, Mumbai, Kolkata, and Chennai. The Bench consists of Vice Chairman and two members in each of the additional benches, however, the principal bench of New Delhi is constituted by the Chairman of the Settlement Commission and two members.  

Procedure

The Department of Revenue has made it clear on the website that only the assessee under the Income-tax Act, 1961, or the Wealth Tax Act, 1957, can approach the Settlement Commission. The chapter which establishes the Commission has laid down the powers and functions of the same. 

Application

The assessee can approach the Commission even when a case is pending before the Assessing Officer or even during the proceedings before the Assessing Officer. However, the applicant or the assessee must approach the Assessment Officer first to approach the Settlement Commission. 

According to Section 245C of the same chapter i.e. Chapter XIX, clearly lays down the essentials content of the application made by an assessee. It provides with an obligation of an assessee to disclose assessee’s income which has not been disclosed before the Assessing Officer. The manner and additional taxes to be paid and other such particulars worth mentioning shall be included in the application before the Settlement Commission. 

Such additional income tax shall be paid with the interest and disclosed before the applicant assessee approaches the Settlement Commission. 

Hence it is Section 245C that gives an assessee the right to approach the Settlement Commission in the prescribed procedure, however, the matter of the case i.e. the income tax and the interest paid by the assessee must be more than Rs. 3 lakhs.

Procedure followed by Settlement Commission 

The main function of the Settlement Commission is to prescribe the terms of the settlement or resolve the applicant’s application. Section 245D of Chapter XIX lays down all the duties, or we can say, the procedure after the application of an assessee is received by the Settlement *Commission. Within seven days of receiving the application from the assessee that the Settlement Commission must issue a notice to the applicant assessee as to why the application is meant to proceed. In case of rejecting the application, the Settlement Commission shall pass an order stating the same with reasons within 14 days from the date of hearing the application. In case there is no such order passed, then the application is assumed to be proceeded further for resolving to settle by the Settlement Commission. 

The second step to be taken by the Settlement Commission is to call for a report from the Commissioner. The Commissioner will have to furnish all the details and make 7 copies of such reports, one which is to be given to the assessee, within 30 days from the date of the receipt of such communication from the Settlement Commission. 

If the Commissioner does not submit the report before the prescribed period, the Settlement Commission proceeds with the matter without the report. 

The Settlement Commission declares the report submitted by the Commissioner either invalid or not declared invalid. In case the Settlement Commission declares the report to be valid or doesn’t declare the report to be invalid, the Settlement Commission has the option to direct the Commissioner to produce records and investigate further to furnish the report more within 90 days from the receipt of such communication from the Commission. 

In the case where the Settlement Commission declares the report submitted by the Commissioner to be invalid after the applicant is given an opportunity to be heard, then such order shall be sent to the applicant as well as the Commissioner. 

If there is not such furnishing done within the prescribed time, the Settlement Commission may pass an order without the report. 

After giving an opportunity to be heard to both the applicant and the Commissioner, when the Settlement Commission considers the furnished report by the Commissioner after examination, the Settlement Commission may pass an order which may fall under the purview of the subject matter of the application or even subject matter not covered in the application based on the report submitted by the Commissioner. 

Click Above

The main function of the Settlement Commission is to pass an order to fix the terms of the settlement. If the settlement turns out to be void because of misrepresentation or fraudulent facts, then the proceeding begins with the stage of the application again. Such matter can be taken by the Income Tax Authority and settle within 2 years of the financial year at which the settlement became void. 

During the pendency of the cases, the Settlement Commission has the power to attach the property of the applicant assessee for not more than 6 months, if the Commission thinks that the attachment of property is necessary, in terms of revenue. The 6-month period might be extended by a written order by the Settlement Commission with justified reasons. 

The Commission has also a power to make an assessee immune from any other prosecution or penalty as prescribed in any other law like Indian Penal Code or any Central Act based on the assessee’s behaviour and conduct throughout the proceedings. Though it may even withdraw the same immunity of the Commission is in the opinion that the applicant assessee has not stuck to the conduct like non-disclosure of records.

Conclusion

One of the main aims of establishing the Settlement Commission is to establish a separate body for tax-related cases so that such cases are settled expeditiously and fairly. However, in recent times, the Settlement Commission has received high criticism in the news. There is dissatisfaction spread as the Settlement Commission failed to yield desired results even after 30 years of establishment and operations. One of the reasons why is that the powers of the Settlement Commission though are provided by the Act, yet it is still not clear as to how much power does it share with the Income Tax Authority or how much not. 

The Act has clearly provided the Commission with the same powers as the Income Tax Authority, yet nowhere are the limitations mentioned or provided. Also, there are many cases where the jurisdiction of the Settlement Commission was questioned due to unclear character of taxation laws and statutes. For example, recently in the case of Principal Commissioner of Income Tax, Central V. Income Tax Settlement Commission (22/10/2019), the Gujarat High Court in the month of June, had to make it clear that assets outside India do not fall under the heading Income outside India. The bench dug deep into the meaning and definitions and held that the Settlement Commission does not have jurisdiction to give an order as to fully disclose assets earned outside of India. It specifically mentioned that the undisclosed assets earned outside India pertains to Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015, therefore the case should be in the jurisdiction of the Income Tax Department. However, in a similar natured case in the state of West Bengal, the High Court went in favour of the Settlement Commission. 

Similarly, the Delhi High Court, in the case of Sonepat & Ors. V. Amit Decorative Plywoods Pvt. Ltd. & Ors. (19/11/2019), clearly expressed disappointment with the nature of jurisdiction exercised by the Settlement Commission. The bench made it clear that the Settlement Commission is not an alternative available to an applicant or, in this case, assessee. It emphasized on the fact that the Settlement Commission is not a ‘parallel body’ available to replace the regular adjudicating authorities. In this case of tax evasion by manipulating records and modifying the data, the Respondent moved to the Settlement Commission without responding to the Show Cause Notice issued to the respondents by the actual adjudicatory body. The Delhi High Court was disappointed with the fact that the Settlement Commission accepted such Show Cause to settle the case and made it very clear that a Show Cause notice is completely out of the Settlement Commission’s jurisdiction. 

The Settlement Commission was criticized for accepting gold smuggling cases even though the Settlement Commission was clearly prohibited from accepting applications related to gold smuggling. Even the Centre was questioned through many applications as to why is there confusion when there is a clear provision of the prohibition of Settlement Commission from accepting gold smuggling cases.

Considering the unclear laws, the power of granting immunity to the assessee applicant against any prosecution is only restricted to the Central Acts, therefore, the Settlement Commission may not have the power to grant immunity to any assessee applicant from prosecution according to any State laws. 

The Commission has completely failed to settle the cases before it in low cost. Yet the Settlement Commission is highly appreciated for its ability to solve the most complex tax-related cases. Settlement Commission needs to nourish its functioning. 

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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This article is written by Nishtha Pandey (batch 2023), from Dr. Ram Manohar Lohiya National Law University. In this article basic aspects of the Appropriation of payment and the Discharge by agreement, have been discussed in detail. 

Introduction 

Appropriation means ‘application’ of payments. In case of a creditor and a debtor, Section 59 to 61 of the Indian Contract Act, 1872, lay down certain rules regarding the Appropriation of payments. When a debtor pays an amount to the creditor, the creditor is to take note of these sections before applying the payment to a particular debt, because the creditor would be inclined to appropriate payments to the debt which is not likely to be realized easily. In case both parties do not specify the appropriation then the law would take the responsibility and appropriate accordingly.

A discharge of a contract by agreement, on the other hand, is when the contract is ended because the conditions are not fulfilled. However, the involved parties can also terminate a contract when the primary terms and conditions of the said contract have not been fulfilled. Essentially, the difference between a discharge of a contract and terminating contract is the reasons why the contract is coming to an end.

 Appropriation by debtor

Under Section 59 of the Indian Contract Act, 1872, it is stated that if the debtor owes several debts to the creditor, and makes a payment to any of them and later requests the creditor to apply the payment to the discharge of a particular debt. If the creditor agrees to this request, he is bound by such appropriation. This section applies to several distinct debts and not to a single debt, or to various heads of one debt. This is not applicable where the debt has merged into a decree. The appropriation may be implied or expressed by the creditor. The basic idea is that “When money is paid, it is to be applied according to express the will of the payer and not the receiver. If the party to whom the money is offered does not agree to apply it according to the will of the party offering it, he must refuse it and stand upon the rights which the law has given him”

Clayton’s Case

In England, it has been considered a basic rule since the case of Devaynes vs Noble, also known as Clayton’s case. In this, it was held that the debtor can request the creditor to appropriate the amount to any of the debt in case he owes to the creditor several and distinct debts, if the creditor agrees to it, then he is bound by it. 

Several and Distinct Debts

Section 59 applies to the debt which is several and distinct and does not apply in the cases where there is only one debt even if it is to be paid in installments. The test to know whether the debts are distinct is the person can sue for it separately. 

Intimation by the Debtor

The debtor must at the time of the payment of the debt, must intimate the creditor that the amount must be paid for the liquidation of a certain debt, and the creditor has to appropriate it accordingly. The creditor has the right to refuse any conditions made by the debtor during the payment of the debt. Once appropriation has been accepted, then the creditor cannot alter the terms of the appropriation, without the consent of the debtor. 

The debtor should communicate his appropriation either expressly or impliedly, through the circumstances indicating such intention.

Proof of Intention

Intention about the appropriation of the payment by the debtor must be proved by circumstances. Where the debtor alleges appropriation in a particular manner then he must prove it. Moreover, entries in the book of the creditor could be considered for the proposed appropriation by the debtor.

Contract of Guarantee

The right to appropriate is available to the debtor and not the surety. A surety is also bound by the creditor’s appropriation. Also, the surety has no right to insist on the appropriation of any payment to the guaranteed debt, unless the circumstances of the case are such that they show such intention.

Appropriation by creditor 

Under Section 60, the creditor is also competent for appropriation. If the debtor makes any payment without any appropriation then the creditor can use his discretion to wipe out any debt which is due. He may use it for the payment of a time-barred debt or wipe out the debt which is carrying a lower interest rate. The right of appropriation lies with the creditor until the last moment, even when he is examined at the trial or before any act which renders him inequitable for him to exercise this right. The creditor, in this case, has a lot of scope for exercising his right, he can put himself in the most advantageous position. Moreover, he need not express himself in express terms while doing so. As long as notice has not been given in respect of the appropriation of any amount, the creditor can change it and can appropriate some other claim.

Lawful Debts

The creditor must establish the existence of a lawful debt actually due. Under this section, the appropriation cannot be made against any unlawful debt. In several cases, it was held by the court that a creditor can even appropriate towards an unenforceable debt due to some defect.

Time-Barred Debts

The creditor, in the absence of any appropriation by the debtor, can appropriate the amount of a debt barred by the Limitation Act,1963. This usually happens as the creditor appropriate the amount to a time-barred debt and sue the debtor for the ones not barred. However, the amount cannot be appropriated to a debt barred by a statute after an action has been brought and judgment has been delivered. 

Principal and Interest on Single Debt

There is a lot of conflict amongst the opinion of the court as to whether the provisions of this Section would apply to the principal and interest of the debt or not. In the case of Jia Ram vs Sulakhan Mal (Air 1941 Lahore 386), it was held that the principal and the interest would not be applicable under this. 

As under the common law, the rule that applies is that where the principal and interest has accrued on a debt, sums paid where interest has accrued must be applied first to the interest. This rule is based on “common justice” else it would deprive the creditor of the benefit to which he is entitled under his contract and would be most unreasonable for him.

Appropriation by law 

Section 61 is applied in a situation when neither of the parties makes the appropriation. To settle this deadlock, then the law gets the right to appropriate. In such cases, the debt is settled in accordance with the order of the time they have incurred. In case all the debts are of the same time then the debts would be discharged proportionately. Under this Section not only the express agreement but also the mode of dealing between the parties.

Assignment of contracts 

Assignment of contract means the transfer of the contractual rights or liabilities by a party of the contract to some other person who is not a party to the contract. For Example- A owes B debt and B owes to C. B can ask A to directly pay the amount to C, and if A agrees to this, then this will be an assignment of a contract. 

Assignment of liabilities 

In an assignment of the contract, it is important to note that the liabilities cannot be assigned. The promisor has to insist that the responsibility of the performance of the contract lies on the promisor himself. It becomes more important when the work is of personal nature and demands personalized skills like painting, singing. The promisor, in that case, can object to the performance of the contract which is done by some other person who is not a party to the contract.

The contractual liabilities may be assigned in the following two ways:

By the act of the party

• Assignment with the consent of the other party and the assignee;

For Example- novation of a contract. 

• Assignment with the consent of other parties, but without the consent of the assignee. 

For Example- A and B are party to a contract, they both decided to assign the liabilities on C, who is a stranger to a contract.

• The assignment without the consent of the other party but with the consent of the assignee i.e. a voluntary assignment.

For Example- A and B are party to a contract, B assigns the liabilities of the contract to C, who is a stranger to contract, with his consent but without the permission of A.

By operation of law

The operation of law is another mode of a valid assignment of any contractual liabilities to a stranger. Such assignment is also called an ‘involuntary assignment’ or an ‘automatic assignment’ of contractual burdens or obligations. Such assignment may take place in the following circumstances:

1. On the death of the promisor.
2. On the retirement of a partner.
3. On insolvency of the promisor.
4. On winding up of a company.

Assignment of rights 

The rights are assignable under a contract unless the contract is personal in nature or the rights are incapable to be assigned either by law or under any contract that is entered by the parties. The intention regarding the assignment of the rights needs to be gathered from the nature of the agreement or from the prevailing circumstances. 

Even when there is no prohibition as to the assignment of the rights, but if the court from the facts of the case determines that there are various personal obligations under the contract, hence the rights under this cannot be assigned. 

One of the leading authorities is the decision of the Supreme Court in the case of Khardah vs Raymon, in this case, it the dispute arose because of a contract for the purchase of mill by a Pakistani jute dealer who failed to supply the goods as agreed. The court held that the contract for the purchase of the foreign jute was not assignable because the goods had to be imported from under the license which was not transferable. The other question which was put up was whether the dealer could assign his rights to that price on the delivery of the goods. The court accepted that there is nothing personal about the sale of goods. Moreover, it is established that the arbitration clause does not take away the right of the party to assign if it is otherwise assignable. In fact, the rights of the seller also do not obstruct the assignability of the contract. In the case, there was no provision in the contract which prohibits the assignment. The court stated that in the law there is a clear distinction between the assignment of the rights under a contract by the party who has performed the contract and his obligations, and the assignment of a claim for compensation which one party has against the other party for the breach of contract. The latter is just a claim of damages that can not be assigned in law, the former is the benefit under the agreement, which is capable of assignment.

Personal Nature of the Contract

The contract of personal nature involved the personal creditworthiness of the buyer even in the case of the mode of payment, which was not capable of being assigned. This was held in the case of SAIL vs State of MP in which the central government assigned a piece of land to its own corporate undertaking with rights, liberties and privileges, one of which was the exemption from tax. The court rules that the assignee became entitled to the exemption as the successor.

Unilateral cancellation of the sale deed

It is not possible for the vendor to make a deed of cancellation of the sale deed made, even if the ground is full of consideration was not received by the vendor. Such a deed would result in the revocation of the contract and would require the order of the court. Moreover, a deed of cancellation of a sale unilaterally executed by the transferor does not create, assign, limit or extinguish any right, title or interest in the property and is of no effect. Hence such a deed could not be accepted for registration.

Effect and formalities of assignment

Consideration 

The assignment requires some form of consideration from the assignor to the assignee. In the absence of any consideration between them, the assignment will be revocable. But when an assignment is made by way of gift, by following all the essential conditions of a gift, then it can not be revoked. In order to make a voluntary settlement valid, the settlor must do everything, which according to the nature of the property was necessary to do in order to transfer the property.

Subject to equities 

The title of the assignee is subject to all the equities that exist or arise up to the time when the notice of assignment is given to the debtor. (for instance, A is the assignor, B is the assignee and C is the debtor).The assignee would not be affected by the equity of personal nature between the assignor and the assignee. For example, the right to claim damages for the fraud committed by the assignor cannot be used to defeat the right of the assignee. 

Notice of assignment 

Notice of assignment should be given to the debtor. This is very useful as it binds the debtor. If the notice is not given then the debtor could make the payment of the assignor himself and will get discharged. Moreover, if notice is given then the assignment would not be affected by any equity that may arise. Moreover, if the notice is paid to the assignor who has many assignments then, in that case, the notice is given to him at that point of time, then that assignment will have priority over others even if it was received later.

Discharge by agreement

Discharge of a contract means to end a contract. Discharge of the contract can take place through:

• By Performance;
• By agreement or by consent;
• By promise failing to offer facilities for performance;
• By breach of contract;
• By impossibility of performance;
• By death;
• By refusing tender of performance;
• By unauthorized material alteration of the contract;
• Discharge by lapse of time;
• By operation of law.

The parties to a contract are free to alter or rescind the entire term of the contract. Novation or modification can happen in the same manner as that of the conclusion of the contract. If one party proposes a novation and the other party accepts it but in a qualified manner, then it will not amount to novation. A mutual abandonment, cancellation, or rescission must be clearly expressed. Novation or modification is effected only when all the parties agree to it. The substituted contract need to be enforceable just like the original contract. In case the new contract is not enforceable then the original contract would be operative. In such cases, the consideration would be the release of the existing contract for a promise to undertake a new contract. 

Contracts which need not be performed 

Under Section 62 of the Indian Contract Act, 1872, it is given that if the parties to a contract agree to substitute a new contract for the earlier contract or rescind it all together then the original contract need not be performed.

Novation 

The word “novation” is not used in the section per se but is present in the marginal notes. It is defined that a contract that is already in existence is substituted by a new contract and the consideration mutually discharged of the old debt. The outline principle of novation is “discharge of one debt or debtor and substitution of one debt or debtor”. Novation cannot be done unilaterally, it has to be with the consent of both the parties. Novation is the complete substitution of the old contract with the new contract and not mere variation in the terms of the original contract. Novation would come into effect when the terms of the new contract are so inconsistent with the former, that it is impossible to perform the former. In the case of Vishram Arjun vs Irakulla Shankaraiha, the court held that the essence of novation does not lie in the complete dissimilarity of the terms but in the intention of the parties to substitute the original contract with the new one. 

A common instance of the novation of the contract is in the case of a partnership where on the dissolution if some partners continue to do business and undertake between themselves and the retiring partner that they will assume and discharge the liabilities of the business. They give this notice to the creditor and if he gives his asset to it then a contract and a new firm is formed.

Hence novation of a contract is of two kinds:

• Novation involving a change of the party.
• Novation involving the substitution of a new contract in place of the old.

A novation usually takes place:

• When a new partner is admitted,
• When a partner retires,
• The new firm is constituted after the admission or retirement and it accepts the liabilities of the old firm.

Change of parties 

The substituted contract would subsist between the parties of the original contract. The novation cannot be forced on a party. It has to be considered in every case not only whether the new debtor has accepted the liability but also if the creditor has agreed to accept his liabilities in substitution of the original debtor. The discharge of the original debtor must precede and is distinct from the acceptance of the creditor. The statutory novation is usually comprised in a single statue or decree of practical purposes, they function simultaneously but has a distinct legal identity of its own. 

Substitution of a new agreement

If A is a debtor, and the creditor agrees to accept B in the place of A as a debtor, then the previous contract between A and the creditor comes to an end.

For the novation of the contract, the original contract must be substituted by a new contract and the original contract is now discharged and need not be performed. It is important that the original contract must be subsisting and unbroken. The substitution of the contract can not take place if the original contract is breached.

In the case of Koyal vs Thakur Das Naskar, the plaintiff sued to recover a sum owed to the defendant. After the due date, the plaintiff agreed to accept a particular amount in cash and the rest by way of the bond, which was to be paid on the installment basis. However, the defendant neither paid the bond nor the cash. The plaintiff subsequently sued him for the original bond. The court held that the original bond is discharged by the breach and not by novation, hence the plaintiff has to sue on the basis of breach of contract.

The Supreme Court in Lata Construction vs Rameshchandra Ramniklal stated that one of the essential conditions of the novation of the contract is that there should be a complete substitution of the new contract in place of the earlier contract. In this situation, the original contract need not be performed. Substitution of the new contract in place of the old which would have the effect of completely rescinding or altering the terms of the original contract has to be an agreement between the parties. The substituted contract should extinguish the previous contract. 

It is further necessary that the new agreement should be valid and enforceable. Thus where an existing mortgage is replaced by a new agreement of mortgage and the new agreement is not enforceable because of lack of registration, in this case, it is held that the original contract is still functional.

It is obvious that the presence of consideration in these cases is mandatory, as unilateral alteration of terms is permissible. The promise of a fresh contract in place of the original one is also a sufficient consideration in these cases. 

Effect of Novation

After a novation, when a new contract is enforceable, then the relationship between the parties would be governed by the new contract and the obligor will be relieved of all his pre obligations. The substituted agreement gives rise to a cause of action and limitation would be counted on the basis of a new promise. Where the parties release each other from the mutual obligation of each other, then at that point of time at which such settlement was made would be the time at which the contract terminates.

No Novation

However, where the parties had the option to terminate the contract and the parties by subsequent contract postponed the termination of the contract, then this will not amount to novation of a contract. Even if the terms of the old contract are kept alive, even then, it would not amount to proper substitution and hence no novation will take place. It is important to note that if in the original contract the provision of arbitration is present then the novation of the contract will have no effect on the arbitration clause and it would not get discharged.

There would be no novation where the contract itself contains a provision for the payment by one party of the enhanced rates dependent upon a contingency. Moreover, to secure a debt by a deed, which will operate only as a mortgage and would not replace the existing personal liability, then such is not a novation of a contract.

Formality

A subsequent contract substituting the original contract or rescinding it or altering it, may be oral or written or even be implied from the conduct of the parties. Section 92 of the Indian Evidence Act 1872, excludes the oral evidence from the purpose of varying, adding or subtracting from the terms of the contract or any matter required by law to be in writing. However, the proviso four of that section provides that the existence of any distinct subsequent oral agreement to rescind or modify such contract, grant or disposition of property may be proved. But where the original contract is of such a nature as that the law requires to be in writing or where its execution has been followed by registration, the only way of proving the modification the original contract will be by proof of an agreement with a like formality.

What do a novation contract consist of?

Release Clause

It is important that a clause in the novation deed outlines the discharge of both rights and obligations from the outgoing party. It is important to ensure that the clause is clear and concise so that there is no scope for confusion.

Representations and Warranty Provisions

The deed should also outline that both the outgoing and continuing party have the full legal capacity to proceed with business, including relevant authorisation. It should also evidence that both parties have taken all actions to the best of their abilities to finalise the novation deed.

Insurance/Indemnity Clause

If one is the incoming third party, he or she may want to have an indemnity clause. This can protect him or her from being liable for the work completed before the novation date. This again can help to reduce the chances of a conflict.

Costs

For various transactions like novated leases etc., parties should calculate and include the agreed costs.

Conclusion 

Under the appropriation of a contract, the debtor has the first right to intimate appropriation of a debt at the time of payment if he fails to exercise his right, this right then goes on the creditor and if the creditor also fails to exercise his right the appropriation will be done in order of time by the law itself. In case of debts of equal standing, each will be appropriated proportionately. 

The discharge of the contract involves the novation of the contract. In novation, the whole contract is substituted by a new contract. This substitution takes place mutually by both parties. The parties could communicate their opinions expressly or it could be implied due to the circumstances.

References 

• Avtar Singh, the law of contract
• Pollock and Mulla, The Indian Contract Act,1872
• https://lawpath.com.au/blog/what-is-novation
• https://blog.ipleaders.in/contract-discharge/

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 Appropriation of payments and Discharge by agreement appeared first on iPleaders.

The article is written by Ayush Verma, a student of RMLNLU, Lucknow. This article deals with the provisions relating to receipt of stolen property under IPC.

Introduction

Receiving a property that a person knows to be a stolen one is a crime. Such property may have been stolen by way of theft, extortion, or by any other way. It is considered a crime because buying of such property would encourage crimes like theft, robbery etc as the person stealing such property would get money after selling the stolen property. Therefore, receiving of stolen property is a crime to prevent the selling of stolen property which may reward thieves for their criminal acts. It also prevents concealing of property by a person who knows that such property is obtained by an illegal way. There are various provisions related to the receiving of stolen property in IPC. These are given under Section 410 to 414 of the IPC.

Stolen Property

Section 410 states that a property whose possession has been transferred by theft, extortion, or robbery and which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is considered a “stolen property”, where the transfer of it has been made, or its misappropriation or breach of trust has been committed, within or without India. It further states that if the property subsequently comes into the possession of a person who is legally entitled to possess that, it then ceases to be stolen property.

Essential Ingredients

Property should be Stolen Property

The property being received by a person must be a stolen property to constitute an offence of receiving stolen property under the provisions of the Code. Property whose possession is transferred by the five ways given in Section 410 is considered a stolen property. Those are:

1. By theft;
2. By extortion;
3. By robbery;
4. By criminal misappropriation; and
5. By criminal breach of trust.

Ownerless Property

It is based on the concept of res nullius which means that a property which has no owner or which has been abandoned by its actual owner. A property which has no owner cannot be subject to theft and hence, receiving it would not lead to receipt of stolen property. For e.g- a bull which has been abandoned by its owner and belongs to no one, taking it would not amount to receiving of stolen property.

‘Within or Without India’

Section 410 says that it is immaterial to consider whether the transfer has been made, or criminal misappropriation, or breach of trust has been committed, within or outside India. The transfer of such property can be made within or without India to qualify it as “stolen property”.

Property Obtained Otherwise

It must be noted that a property obtained by cheating or forgery is not called a stolen property.

Property exchanged or converted

A property which is obtained by exchanging or converting stolen property is not stolen property in itself. For e.g. if some amount of cash is obtained by selling a stolen property then that cash would not be called stolen property. However, if an ingot is made by melting a stolen jewellery or ornament, then that ingot would be stolen property as it is the same in substance, though altered in appearance.

Dishonestly Receiving or Retaining Stolen Property

Section 411 proposes that whoever dishonestly receives or retains a stolen property, knowing or having reason to believe that such property is a stolen one, shall be imprisoned for a term which may extend up to three years, or with fine, or both. Therefore any person having belief or knowledge about any stolen property must not receive or retain it. 

The liability under Section 411 arises not only for dishonest “reception” but also for dishonest “retention”. The difference between the two is that in the former, the person has received the property dishonestly but may not necessarily retain it dishonestly. However, in the latter, there is a change in the mind of the person from “honest” to “dishonest” and he then retains that property dishonestly with himself.

Following are the ingredients that need to be established to prove the guilt of the accused:

• That the accused had possession of the stolen property.
• That before the accused got the possession of the property, the property was in some other person’s possession.
• That the accused had knowledge and reason to believe that the property was a stolen one.
• That the accused had intent to deprive the owner of his or her property by keeping or selling it to another party.

Offence under Section 411 is cognizable and warrant should be issued in the first instance. The offence is non-bailable and compoundable with the permission of the Court. The offence is tried under the Magistrate.

Receiving or Retaining Stolen Property with Knowledge

The offence under Section 411 is not made punishable just for receiving a stolen property from any person for any particular reason. The offence is made punishable only when someone buys such property with the knowledge or having reason to believe that it was stolen property.

The word “believe” involves the necessity of establishing that the circumstances were such that a reasonable person would be convinced that the property he is purchasing or dealing with, is stolen.

If a person has obtained a property that he does not know to be stolen, it is not sufficient to show that the accused was careless, or he had reason to suspect that the property was stolen or he did not make sufficient enquiry to ascertain the status of that property. It is immaterial whether the person receiving it knows or not who stole it. Initial possessing of that property is not a crime but if the person retains it after knowing that it was stolen property, then the person is liable.

In the case of Bhanwarlal v. State of Rajasthan, the accused purchased 9kgs of silver for a paltry sum, having knowledge that it was stolen property. The person was not considered a bona-fide purchaser by the Court. Silver ingots were recovered from many persons at his instance and his conviction was held to be sustainable.

In the case of Nagappa Dhondiba v. State, here the stolen ornaments of a deceased person which she had been wearing when she was alive were discovered, from the information given by the accused, within thirty days of the murder of the deceased. It was held by the Court that the accused can only be made liable under Section 411 and not under Section 302 for murder or Section 394 for voluntarily causing hurt in pursuance of robbery as there was no evidence to establish the liability of the person on those grounds.

In the case of State of Karnataka v. Abdul Gaffar, a copper pot containing Rs. 200 in it was stolen from the temple. The presumption was made that the person in whose possession the pot was found must have committed theft. The property was worth Rs. 600. A fine of Rs. 200 was imposed under Section 411 considering the fact that it was stolen from a temple.

Possession

It is not necessary to establish that the stolen goods should have been produced from the actual possession of the accused. It should be shown that the accused after believing that the property is a stolen one held that property in his possession with a dishonest intent. Therefore the “possession” must be a conscious one, that the person having knowledge about the stolen property held the same, in order to charge him with criminal liability. 

The criminal liability for possession of stolen property must be actual and exclusive. It must not lead to constructive possession i.e. a person who is the superior person in a joint family is presumed to have possession of the entire family property, and if one of the members of his family commits such a crime, that supreme person cannot be held to be liable for the possession of stolen property by that member. Only that person shall be exclusively made liable who was in actual possession of the stolen property with a dishonest intention and having knowledge or reason to believe that such property was a stolen one.

An accused would only be held liable for the property that has been recovered from him and not for the rest of the property that may be connected with it. The fact that the rest of the property is not recovered from him does not change his liability. Also, mere knowledge about the whereabouts of the property does not make a person liable under Section 411.

In the case of Trimbak v. State, the place from which the property was taken was in open and easily accessible to all sundry and that in these circumstances it was not safe to hold that the place was in the possession of the accused, or that the property was recovered from his possession. The fact that the recovery is done from accused is compatible with the circumstance that somebody else having placed the articles there and that resulted in accused acquiring the knowledge about their whereabouts and the case being so, the fact of discovery cannot be regarded as a conclusive proof that the accused was in possession of these articles. Based on the reasons given above, the Supreme Court ordered the acquittal of the accused.

Receiving Property Stolen in the Commission of a Dacoity

Section 412 says that any person who dishonestly receives or retains any stolen property, the possession of which, after having knowledge and reason to believe, has been transferred by the commission of dacoity, or has dishonestly received from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, a property which he has knowledge or has reason to believe that the property is a stolen one, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend up to ten years and shall also be liable for a fine.

Following ingredients must be satisfied to make a person liable under Section 412:

• That the property is stolen property;
• That such property was concerned with dacoity;
• That the accused dishonestly received it; and
• That accused had knowledge or reason to believe that the said property was stolen in dacoity.

The offence under Section 412 is cognizable, non-bailable and non-compoundable and triable by a Court of session.

Habitually Dealing in Stolen Property

Section 413 states that any person who habitually receives or deals in a stolen property, having knowledge or reason to believe that the property is a stolen one, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend upto ten years, and shall also be liable for fine.

Following ingredients shall be satisfied for making a person liable under Section 413:

• That the property in question is a stolen property;
• That the accused received that property;
• That the accused habitually deals in such property; and
• That the person did so having knowledge or reason to believe that the property was stolen property.

The offence under this Section is cognizable, non-bailable and non-compoundable and it is triable be a Court of session.

Concealing and Disposing of Stolen Property

Section 414 deals with concealing and disposing of stolen property. It states that any person who voluntarily assists in concealing or disposing of that property or making away of that property which he has knowledge of or reasons to believe to be stolen property, shall be punished with imprisonment of either description for a term which may extend up to three years, or with fine, or both.

Following ingredients need to be satisfied before making a person liable under Section 414:

• That the property in question is a stolen property;
• That the accused had knowledge or reasons to believe that the property was stolen property; and
• That the accused voluntarily assisted in concealing or disposing of or making away with such property.

The offence under Section 414 is cognizable, non-bailable and non-compoundable and triable by a Magistrate.

Conclusion

The provision seeks to protect the crimes like theft, robbery as receiving of stolen property would encourage such acts. A person engaging in obtaining of stolen property commits a crime of receiving stolen property. However, there must be a dishonest intention and knowledge or reason to believe that the property being received is a stolen one to establish the guilt of the person. 

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 Receipt of Stolen Property under IPC appeared first on iPleaders.

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

This week I have been interviewing some lawyers for some roles across sales, marketing, and course creator roles. I am interviewing lawyers who have worked in big law firms in the past, and those who have spent many years in litigation. A few of them were in-house counsels too. One interview particularly left an impact on me. 

It was with a lawyer who works in an in-house legal role. 

In job interviews, I always ask questions about what one does or did in the last job, and check whether the interviewee understands the business where he or she is operating or operated in the past. 

If you do not know much about the business model in which you played a part, that says volumes about you. 

I meet law firm associates all the time who do not understand the business model of their law firms where they spend years working or the positioning of the practices they help to build. Even if they know their law well, they tend to have very little business acumen, perhaps by design as it prevents them from growing wings and flying away from the nest.

Most litigators have no clear understanding of the legal industry or any economic hypothesis about how they can build their careers. They are just blindly following the footsteps of the lawyers that have succeeded in the past, without accounting for the myriad ways in which the practice of law has completely changed. 

However, in-house counsels, in my experience, tend to have a much better understanding of the businesses they are hired to help. 

This gentleman, in particular, had none of the usual brands on his CV that would indicate that he is a top performer. He graduated from a college with an unrecognizable name. He worked in three different tech companies and could explain why each one is succeeding, and why they may fail someday. He had a complete grasp on each one’s business model, and he could explain how the legal department of each was different, and why that was the case.

In a 15 mins conversation, he taught me a lot of new things about in-house legal departments in tech companies.

That kind of clarity in lawyers about business and the role of lawyers in the same is a great sign. It is a sign of you being involved and clued in. It shows that you are not just some random cog in the wheel or a paper pusher, but someone truly adding value, having thought things through and involved in your job. 

It shows you are not just surviving your job, but actually enjoying it, and had the intelligence to think about the critical stuff.

It shows your ability to navigate upwards in your career. If you know what the system is and where you belong in the scheme of things, you can also figure out how to add more value to the system and therefore climb up further along. 

That is exactly what an entrepreneur does as well. It is a quality that I highly value in any lawyer, and it is quite rare.

But in-house counsels are way more likely to develop that quality than any other lawyers. And I believe that this alone gives them a massive advantage over other lawyers.

Law firm lawyers do not even begin to worry about this stuff until they make partner, or open their own firm in most cases. Many litigators do not develop it at all.

However, in the legal industry, if there is one skill we need more, that is this exact ability. We need more lawyers who do not only know the law but get how to make the business side of things work and can figure out how to step up their level of contribution. 

In this regard, in-house counsels have an unfair advantage, and they are, for this reason, often far more satisfied with their jobs.

No wonder that many lawyers want to shift to in-house legal from law firms and litigation. However, there are some other reasons too. Let’s explore them.

Why in-house counsel jobs are becoming highly attractive

Higher job satisfaction

Not all lawyers want to live in a world of arguments, precedences and pleasing judges. Some draw satisfaction from being involved in a business, by investing in a growing organization through their skills, and by helping a business to grow.

I know a lawyer who reduced the costs of pending litigations in a certain company by 30% in 3 months by installing an MIS system that did not exist before.

He had to learn excel and management skills he never had before that, and he went out of the way to acquire the right skills to be able to pull this off. He takes immense pride in that fact.

He did not have to wait to become the General Counsel or Legal Head to do so. He submitted a proposal and it was accepted. He was then given the opportunity to work on the same. He would rarely get the opportunity to do such things in a law firm even if he was a partner. 

Click Above

Your job satisfaction is likely to increase if you can see your work helping the organization to grow, and when you get praised for your out-of-the-box thinking and execution. This happens a lot more in in-house legal teams than anywhere else.  

In-house teams are better managed

Many things that are par for the course in large law firms or litigation chambers are totally unacceptable in companies around the world. 

A massive problem that junior lawyers in law firms complain about is a weird culture of spending nights in the office. In the morning they are not given work, or if they submit work in the morning, they are made to wait the entire day for the work to get reviewed. Then, they would be asked to stay back in the office until the wee hours to finish the last moment’s work. 

I am yet to see a legal team in a company that could pull this off on a regular week. It is not that they never spend the night in the office, but there has to be some earth-shattering emergency, not a regular Tuesday in the office. If the legal head begins to call employees to the office every Sunday, it would not be seen as a great commitment to the firm, but frowned upon and explanation will be demanded by other senior leaders. 

I was called a slur by a lawyer I reported to while I was working in a law firm. The reason was that he was angry that I did not agree with his interpretation of a certain law.

When I reported to the HR, I did not get an apology, but the senior and his other reportees turned completely vindictive from that day.

It could happen in a company too, but companies are usually much better at managing such things. Toxic people do not get as long a leash in most companies. 

There are law firm partners whose entire team quit en masse every year, but they are still retained in the firm because of their billables. There are senior partners in law firms known to have molested or taken advantage of young women, and the firm would rather pay people off and hush up things rather than clean up the mess and kick such people out of the firm. 

You are far more likely to encounter a better work culture in a world-class company rather than in a top law firm.

Another area in which in-house legal teams lead law firms is the adoption of technology. In-house legal teams use cutting edge tech that makes their work more efficient, and digital transformation is a no brainer because the law cannot lag behind when all other parts of the business are adopting technology rapidly. That’s not the case with law firms. They believe that the value of legal services does not come from technology and therefore they are quite skeptical and often reluctant to change things from the way things used to be.

I hear that it is the case not just in India either. A law firm with the toxic work culture and tech phobia is probably a global phenomenon. 

Legal jobs are moving in-house

Recently a friend who runs a company came to me for some advice. His company enters into 20-30 contracts every month in different jurisdictions that require vetting and negotiation. When he realized he is paying too much to outside lawyers, he wanted to know how he can reduce his legal bills.

He was asking if he should hire someone on a retainership. I suggested to him to hire a full time in-house legal counsel. He did so. I helped him to pick a suitable lawyer with the right skillset. It worked out really well for him because the lawyer does not merely negotiate a few contracts, but also looks into his compliance which apparently needed urgent attention. 

There are two reasons why legal work is moving to in-house teams. One is definitely cost. It is far cheaper to do the regular legal work in-house and only outsource super-specialized once-in-a-while kind of work to law firms or outside lawyers who specialize in the same.

The other and the bigger reason is that outside lawyers do not take a wholesome view of the legal needs of a company. They are paid on a per assignment basis and they look only into a specific matter that they get paid for. Long term planning and risk management require a different kind of involvement. 

In-house counsels add value by apprehending the problems that may arise in the future and by nipping them in the bud or by reducing the risks as far as possible. 

Also, the business people in every company needs a reliable guide and advisor they can always turn to for ingenious solutions for their legal problems. 

This is making investing in in-house legal teams more attractive to businesses, and it is a better long term solution. 

For this reason, a lot of the new jobs that are getting created in the legal industry and not being created in law firms, but in in-house legal teams.

In-house counsels do more cutting edge work

There used to be a notion that in-house counsels are mere conduits between the company and the smarter lawyers working for law firms or arguing in the court. In-house counsels were mere managers. Not any more.

In most in-house legal teams, lawyers are doing heavy lifting and outsourcing very little to outside lawyers. For example, in-house lawyers cannot appear before courts. Earlier they will just hire a good lawyer and hand over the matter to a solicitor or a good arguing counsel. 

Now, they will not only research the law, draft the matter but also come up with a strategy, and merely ask the arguing counsel to implement the strategy they are providing and use the drafts they have come up with. 

In-house lawyers are also upgrading their knowledge to a level that they are giving law firm lawyers a run for their money. And they can afford to do so because they spend way more time on a given problem than a law firm lawyer ever can, given financial constraints.

In-house counsel salaries are rising

There was a time when law firms paid way more than anyone else. Companies did not even try to match law firm salaries.

Corporations have realized that having a good in-house legal team is a competitive advantage in business, and they are not shying away from allocating good budgets to their legal teams. They would rather pay their in-house teams well and prevent problems from arising rather than pay through the nose to outside law firms for an avoidable crisis.

They are hiring top law firm partners and giving them even better packages. Salaries in many in-house teams are now more attractive than even top law firms. 

Here is something for you to do, just visit Naukri.com and check out how much people are getting paid for legal manager roles in companies.

Interestingly, most jobs pay above 6 lakhs, and more than 30% jobs available there pay above 10 lakhs.

Let me also point out that I do not expect most of the top jobs to be even get posted in Naukri.com. Law recruiters rarely post in Naukri.com. This is just to show you the kind of demand there is for in-house legal experts at any given moment and that there are more well-paid jobs than poorly paid ones, even in naukri.com. 

How to get the most attractive in-house legal jobs

I am going to tell you more in the coming days about in-house legal jobs and how to get one if you are interested. So keep reading these emails. Here is a course where we help lawyers to prepare for in-house legal roles, and we have helped hundreds of in-house lawyers already to rapidly acquire skillsets that help them to stand out and outperform their competition.

Here are other courses you can enroll in at present, definitely check them out:

DIPLOMA 

Diploma in Business Laws for In House Counsels

Diploma in Companies Act, Corporate Governance and SEBI Regulations

EXECUTIVE CERTIFICATE COURSES

Certificate Course in Advanced Corporate Taxation

Certificate Course in Insolvency and Bankruptcy Code

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

Certificate Course in National Company Law Tribunal (NCLT) Litigation

Certificate Course in Arbitration: Strategy, Procedure and Drafting

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 Why in-house counsel jobs are becoming very attractive appeared first on iPleaders.

This article is written by LawSikho.

The number one concern of many aspiring POSH consultants we speak to every day is – How can they get new clients? 

What makes a client decide to go ahead with a particular consultant for POSH implementation? 

How can they convince clients to pay a premium for their services? 

After working with several Fortune 500 companies, technology startups, construction and infrastructure companies, industry bodies and government departments on POSH implementation and training other POSH consultants on obtaining consultancy work, we have identified three major barriers which come up for POSH consultants-

1.Absence of a Structured Engagement Plan

A client, usually a company with 10+ employees that approaches a POSH Consultant has few pointers or necessities with respect to the kind of consultancy in the arena of the prevention of sexual harassment at the workplace which it requires, specifically. 

As already stated, the number of such POSH Consultancy firms has grown immensely with the change in times and the market need. Now how would an organization be willing to take the expertise of a POSH consultant mostly depends on the value they are going to offer them on the basis of their requirement. 

Does the POSH consultant simply undertake basic POSH compliance or are they able to create value in the process, apply customization to the way POSH is implemented in the organization depending on the different work environments is what would be the tipping point in hiring the services?

So, how does a POSH Consultant demonstrate that value to the organization that seeks his/her expertise in the entire process?

The answer is very simple. 

A structured engagement plan is to be created that would ensure a deeper engagement, instead of a mere surface-level plan that matches the necessities and the working environments of specific organizations.

Components of a structure engagement plan could include a process detailed for engagement. For example, a predetermined list of questions can be sent to the organization to identify the details of the requirements and nuances. This list is to be consciously thought out for each type of client. We call this a ‘requirement analysis form’.  It forms the basis for preparing a watertight proposal as the next step. 

When you send the requirement analysis form, it can be coupled with a profile, but not a specific proposal, until you have the requirements in.  

Next, a process for starting the engagement is necessary. Some consultants have a minimum charge, let’s say of INR 50,000 for a particular kind of work. They refuse to work if they are paid anything less than that. 

This leads to failure of a lot of prospective deals. 

Instead, you can have a phased engagement plan so that you can commence work for different types of clients in a small way. This format helps in building trust. Once the client experiences your service and is satisfied, he or she may move to the next phase and rope you in for a larger engagement. 

The key here is to be able to identify the different aspects of implementation and the challenges which the client will face beforehand and map it into the proposal document, which is why the requirement analysis process is very crucial. 

If you have done a thorough job, the client will realize the difference in value which you provide in comparison to other consultants sooner or later. 

2. Rigidity

No matter how experienced or successful you are, you will always find situations you have not faced earlier. Clients will come up with the most unique kinds of scenarios. 

New situations and new client demands will arise and you will need to cater to them.

You may need to revamp your entire engagement plan and brochure from time to time. It is literally a continuously evolving document for you. 

You cannot be rigid about how you render your service. 

You cannot blindly implement the text of the law. You will need to identify how it applies to specific situations, especially those which are not directly covered under the law. Many lawyers hesitate to risk into this territory, but as a consultant, you need to identify creative ways for the organization to move forward after highlighting the risks.

You also cannot hope to standardize your entire service offering. There is a limit to the amount of standardization possible. A product company will want to standardize everything, but as a consultant, if you want to earn more, you will have to be flexible and focus on customization and experience. A consultant earns a premium because of the customization and the client’s satisfaction and experience.

Let me share another example of being rigid. Some consultants refuse to cooperate with the company’s HR if it organizes software-based training from third party vendors and does not engage them for training.

They have an all or none approach – either engage them fully or not at all.

These are not win-win scenarios and can damage your prospects.

Instead, why not deliver the greatest experience to a client in whatever they ask you to do, so that they come back to you for more?   

If you win their trust, you can do a lot more work for them and even earn referrals. 

Let us take another example of rigidity. A few companies will come up with the specific requirements to the POSH consultants like holding separate sessions for men and women employees while some would want a joint session. in most cases, a POSH consultant, given the sensitive nature of the provisions of the act can try to explain the company for the pros of holding a session together for both male and female employees, but in cases where the workplace doesn’t agree, it is for the POSH consultant to leverage their training session in such a way that the employees are able to accrue maximum value out of it instead of declining the project straightaway. Flexibility and adaptability are a sine qua non for POSH consultants.

3. Vague Proposals

Several POSH consultants do not have a brochure they can send a prospective client quickly, or it is a one-size-fits-all brochure/ PPT which does not attract the imagination of the client to the document.

A client cannot appreciate the value of the service or its relevance after going through the proposal. 

Before POSH Consultants can secure a project from companies, the scope of what the organization expects out of the consultant is necessary. 

Click Above

Second, any specific modifications that may be needed based on the organization’s nature of work and industry sector must be pre-identified. This is your greatest opportunity to identify new areas of value addition.

Maybe the client wants a specific module for what are the do’s and don’ts for interacting with work-from-home consultants.  

Maybe the client needs specific training for staff which is customer-facing.  

Maybe factory-workers need a different kind of training than employees working from the corporate office and the branch office. 

Maybe the sensitization program needs some translations.

Maybe the ICC needs a specific standard operating procedure to deal with complaints. 

The ability of a POSH consultant is put to the test here. 

Have you faced any of the situations above? Did you have a good deal fall through because of any of the above scenarios?

Comment below and let us know.   

How can you address the barriers above?

You will notice that it requires a high level of exposure and practical skills, along with some practice on how to render services and pitch to a client. You can find more about it in this course. 

Please note that if you’ve been our student for the Certificate Course in POSH earlier (Self-paced course), you can upgrade to the Executive Certificate course in POSH which also has online live classes, live doubt clearing sessions and practical exercises. 

You can comment below and tell us how can you do the same or if you’re still confused, schedule a call with our career counsellors.

P.S. Before we sign off, we want to share a free e-book prepared by our team on sexual harassment at work in India HERE. 

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 Why do POSH Consultants Struggle to Get New Clients? appeared first on iPleaders.

So today is the day! We are finally announcing the winner of our Blog Writing Competition of 2nd week of December 2019 (From 9th December 2019 To 15 December 2019) 

We’d like to say a big thanks to everyone for participating! It has been a great pleasure receiving your articles on a different legal topic, they were all amazing! 

And now we’d like to congratulate our top 5 contestants who become the undoubted winners. They will receive Prize money of Rs 2000, LawSikho store credits worth Rs. 1000 and a Certificate of Merit from team LawSikho.

They will also get an opportunity to intern at LawSikho under the direct mentorship of Ramanuj Mukherjee, Abhyuday Agarwal, Harsh Jain and Komal Shah. Their articles got published on iPleaders blog (India’s largest legal blog). Click here to see other perks available to them.

Their entries (see below) received maximum marks based on the average marks given by the panel of editors, and has been crowned the winners!

Meet our next 5 contestants who made it to top 10 here. They will receive a Certificate of Excellence from team LawSikho.

They will also get an opportunity to intern at LawSikho under the direct mentorship of Ramanuj Mukherjee, Abhyuday Agarwal, Harsh Jain and Komal Shah. Their articles got published on iPleaders blog (India’s largest legal blog). Click here to see other perks available to them.

Click here to see all of the contest entries. Click here to see our previous week’s winners.

Our panel of judges, which included editors of iPleaders blog and LawSikho team, choose the winning entry based on how well it exemplified the entry requirements.

The contestants have to claim their prize money by sending their account details at uzair@ipleaders.in within 1 month (30 days) of the date of declaration of results and not afterwards. Certificates will be sent on the email address given by the contestant while submitting the article. For any other queries feel free to contact Uzair at 8439572315 LawSikho credits can be claimed within three months from the date of declaration of the results (after which credits will expire).

Congratulations all the participants!

Regards,

Team LawSikho

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 Blog Competition Winner Announcement (Week 2 December 2019) appeared first on iPleaders.

This article is authored by Miran Ahmed who is a student of BBA.LLB(H) at Amity Law School, Kolkata; and deals with the essentials and fundamentals of contract under the Indian Contract Act, 1872.

Introduction

Criminal cases can be divided into two types: Summons Case and Warrant Case. A summons case relates to an offence not being in a warrant case. Warrant cases are those that include offences punishable with death penalty, imprisonment for life or imprisonment exceeding more than two years. The criteria that differ a summons case from a warrant case is determined by the duration of punishment in any offence. The case of Public Prosecutor V. Hindustan Motors, Andhra Pradesh,1970, is a summons case as the convicted is sentenced to pay a fine of Rs. 50. The issue of summons or warrant, in any case, does not change the nature of the case, for instance, a warrant issued in a summons case does not make it a warrant case as observed in the case of Padam Nath V. Ahmad Dobi, 1969. A trial in a warrant case begins by either filing a First Information Report or FIR in a Police Station or filing it directly before the Magistrate.

Section 238 to 250 of the Criminal Procedure Code, 1973 (CrPC) deals with the trial of warrant cases by magistrates. Trial of warrant cases are of two types:

1. By a police report- Section 173 of CrPC mentions a police report as a report forwarded by a police officer to the Magistrate. In this case, the accused appears or is brought before a magistrate at the commencement of trial. Section 173(2)(i) mentions that as soon as the police investigation is completed, the police station must forward it to the Magistrate empowered to take cognizance of the offence.
2. By other than a police report- The complaint is filed directly with the Magistrate in this case.

The procedure of trial in warrant cases by magistrates in the following way:

1. Compliance with Section 207;
2. When accused shall be discharged;
3. Framing of charge;
4. Conviction on a plea of guilty;
5. Evidence for Prosecution;
6. Evidence for Defence Side;
7. Evidence for Prosecution;
8. When accused shall be discharged;
9. Again Evidence for Defence;
10. Acquittal or conviction;
11. Absence of Complaint;
12. Compensation for accusation without a reasonable cause.

Scope

The Magistrates’ Court forms the bedrock of the legal system in India and the process of trial of warrant cases conducted by magistrates. This is explained in the Criminal Procedure Code, 1973, which classifies warrant cases as those that involve offences punishable with death penalty, imprisonment for life and imprisonment exceeding more than two years. Warrant case proceedings can begin by filing an FIR in the police station. In this case, the police conduct an investigation and forward the report to the Magistrate. The Magistrate then furthers the proceedings under the procedure established by law and the offender is brought before the Magistrate or appears voluntarily. Or the complaint can be filed directly with the Magistrate to initiate the proceedings against an offender.

Cases instituted on a police report

This type of case is filed as an FIR in the police station and is the first step in the process of warrant cases instituted on a police report. The case is then forwarded to the Magistrate. When any case is instituted on a police report, and the accused is brought or appears voluntarily before the Magistrate, the Magistrate shall satisfy himself for complying with the provisions of Section 207. And Section 238 to 243 of CrPC lays down the procedure of trial of warrant cases instituted on a police report and the steps are mentioned below.

Initial steps in the trial

The initial steps involve the filing of an FIR. Once the FIR is filed in the police station, an investigation is conducted to discover the facts and relevant details of the case. Once the investigation is completed, a charge-sheet is filed and the documents are forwarded by the police station to the Magistrate. The steps in warrant cases instituted on police report are:

1. Supply of copy of police report to accused in compliance with Section 207. (Section 238)
2. Discharge of accused on baseless charges. (Section 239)
3. Framing of charges. (Section 240)
4. Conviction on a guilty plea. (Section 241)
5. Evidence for the prosecution. (Section 242)
6. Evidence for defence. (Section 243)

Supply of copies to the accused

A copy of the police report and other documents relevant to the case should be supplied to any person or persons who appears or is brought before a magistrate at the commencement of the trial. And the Magistrate shall satisfy himself in complying with the provisions of Section 207. This is to ensure that the accused are aware of the charges against him and can prepare for defence under fair trial by law.

Discharge of accused if allegations against him are baseless

Once the Magistrate receives the police report and other relevant documents and provides them to the accused, the Magistrate shall consider each report. A hearing shall be convened and a reasonable opportunity shall be provided for both the accused prosecution to present their case. The Magistrate examines the accused if necessary. If the charge against the accused is discovered to be baseless and lacking in substance, the accused shall be discharged under Section 239. The prima facie of the case is also considered.

In the case of State vs Sitaram Dayaram Kachhi, 1957, the accused, Sitaram was acquitted under Section 239.

In the case of State of Himachal Pradesh V. Krishan Lal Pradhan, 1987, the Supreme Court held that there was sufficient relevant material on record and the prima facie of the case was established by one judge. But the succeeding judge came to the decision on the same materials that no charge could be established and therefore, an order of discharge was passed. But it was held by the Supreme Court that no succeeding judge can pass an order of discharge.

Framing of charge

Section 240 of CrPC authorises the Magistrate to consider the police report and even to examine the accused if he feels the need to. If the Magistrate feels the presence of valid grounds to presume that the accused has committed the offence and is capable of committing such an offence, and he is competent to try the offence to adequately punish the accused in his opinion. Then the written charge is framed against the accused and the trial is conducted after the charge is read and explained to the accused. Framing of the charge is a duty of the court and the matter must be considered judiciously.

In the case of Lt. Col. S.K. Kashyap V. The State Of Rajasthan, 1971, the accused files an appeal challenging the authority of the special judge appointed to hear the case. The appeal is failed and dismissed and the case proceedings are continued.

Explaining the charge to the accused

Clause 2 of Section 240 describes that the charge against the accused shall be read and explained to the accused. Once the accused understands the charges against him, he shall be asked whether he pleads guilty of the offence or wishes to challenge the charge by a fair trial under the law.

Conviction on a guilty plea

The accused can plead guilty to cut short the procedure of law and reduce the punishment for his offence. The Magistrate records the guilty plea and convicts the accused on his discretion. (Section 241)

Evidence for prosecution

Section 242 of CrPC defines the procedure with regards to the gathering of evidence against the offender and recording the evidence after examination and cross-examination to acquit or convict an accused individual. In a criminal trial, the case of the state is presented first. The burden of proving the accused guilty is on the prosecution and the evidence must be beyond a reasonable doubt. The prosecution can summon witnesses and present other evidence in order to prove the offence and link it to the offender. This process of proving an accused individual guilty by examining witnesses is called examination in chief. The Magistrate has the power to summon any person as a witness and order him to produce any document. State vs Suwa, 1961 is a case where the orders of the Magistrate to acquit the accused were set aside and a retrial was ordered by sending the case to a District-Magistrate who sent them for a trial to a Magistrate other than the one that tried the case originally.

Steps in evidence presentation of prosecution

Fixing date for the examination of witnesses

Section 242(1) declares that once the charge is framed and read to the accused and he does not plead guilty and wishes to proceed with the trial, the Magistrate shall fix a date for the examination of witnesses.

Examination of witnesses

According to Section 242(2), the Magistrate, on the application of the prosecution, has the authority to issue summons to any witnesses and direct them to attend or produce any document or thing relevant to the case. The cross-examination by the defence is allowed by the Magistrate before some other witness has been examined. This is done to ensure that no perjury is committed and the prosecuting witness does not vilify the accused and gets him convicted on false information. And that the relevant information can be refuted by the defence or further explained in a defensive manner.

Presentation of evidence

The testimonies of witnesses once they are cross-examined by the defence are considered evidence. And other documents or relevant things are brought to the Magistrate to link the accused to the offence. The defence is informed of the evidence presented and may challenge the evidence as may be deemed necessary.

Record of the evidence

Section 242(3) declares that on the date fixed, the Magistrate shall proceed to take all pieces of evidence produced in support of the prosecution and record them based on their relevance to the case. The testimonies of witnesses and any evidence provided to prove the accused had committed the offence by the prosecution is recorded by the Magistrate. The Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination by the defence.

Evidence for the defence

Section 243 of CrPC describes the procedure with regards to collecting and presenting evidence in the defence of the accused. After the prosecution is finished with the examination of the witness, the accused may enter his defence in a written statement and the Magistrate shall file it with the record. Or defence can be produced orally. After the accused has entered his defence, an application may be put to the Magistrate to perform cross-examination of any witness presented by the prosecution. The Magistrate may then summon any witness under Sub-section 2 to be cross-examined by the defence. The prosecution must establish the case beyond a reasonable doubt and if the defence can prove a reasonable doubt then the evidence submitted by the prosecution is not valid and cannot be recorded in court against the accused.

Written statement of accused

Section 243(1) declares that the accused shall be called upon to enter his defence and produce relevant evidence. Any written statement presented by the defence shall be recorded by the Magistrate and filed. Under Section 313(1), the accused shall have the opportunity to be heard and explain any circumstances appearing against him or other facts and circumstances of the case that are relevant. This may be done by a written statement or orally.

Examination of witnesses for the defence

Section 243(2) describes the process of examination of witnesses for defence of the accused. An application can be made by the defence to the Magistrate to compel the attendance of a witness for the purpose of examination or cross-examination, or for the production of any relevant documents or other things. The Magistrate shall issue such directions unless he feels the application has been put for the purpose of delay or vexation or defeats the ends of justice and refuse the application on those grounds. The grounds of refusal of the application by defence shall be recorded by the Magistrate in writing. However, if the accused has had an opportunity to cross-examine a witness presented by the prosecution, or has already cross-examined a witness, then the attendance of such witness shall not be compelled under this section; unless the Magistrate feels such attendance is necessary for justice. Sub-section 3 mentions that the reasonable expenses incurred by the witness in attending the Court for the purpose of the trial must be deposited in Court.

Record of the evidence

CrPC declares that any evidence or witness testimonies shall be filed by the Magistrate with the record. The evidence submitted can be in the form of a written statement or orally submission which the Court shall record. The evidence submitted is recorded to prevent tampering by an interested party to further their agenda and prevent justice from being served to the accused. Any written statement submitted by the accused is also filed with the record by the Magistrate.

Steps in evidence presentation of defence

Court witness

The defence shall have an opportunity to present witnesses to defend the accused. This may include an alibi or individuals that can point out that the accused was present elsewhere from where the offence was committed. The witnesses presented by the defence can be cross-examined by the prosecution and their testimonies challenged. The purpose of defence witness is to create a reasonable doubt to point out that the accused may not have been the exact individual that committed the offence. However, the prosecution can challenge the testimony of said witnesses and isolate the accused to prove beyond a reasonable doubt that the offence was committed by him.

Arguments submitted on behalf of defence

After the closing of evidence, the defence may produce an oral argument and submit a memorandum to the Court. A copy of this memorandum should be supplied to the prosecution. The court possesses the power to interfere if the oral arguments are not to the point and irrelevant to the case and made to waste the time of the court and delay the delivery of justice. The memorandum of argument must be submitted before the closing of oral delivery. Section 313(3) is a rule against self-incrimination and declares that the accused shall not render himself liable to punishment if he refuses to answer any question when examined by the prosecution, or gives false answers.

Judgement

The Magistrate holds the authority to judge the evidence provided by the defence and its relevance. If any evidence or testimony is in his opinion irrelevant or lacks substance, it may be thrown out and not filed with the record and shall no longer be considered in the case. The relevance of the evidence and testimony can be challenged by the opposing party but only the Magistrate has the authority to decide whether it shall be filed with the record or thrown out of the case.

Cases instituted otherwise than on a police report

A warrant case instituted otherwise than on a police report begins when a complaint is filed directly with a magistrate. The accused is brought or appears before a magistrate. The Magistrate begins the proceedings of the case by initiating the hearing process and files all the evidence received with the record. Sections 244, 245, 246 and 247 of CrPC sets the procedure of a warrant case instituted otherwise than on a police report and brought directly to a magistrate by filing a complaint.

Initial steps in the trial

The initial steps involve filing a complaint with a magistrate. Once the complaint is filed in the Magistrate, the accused is brought before the Magistrate or appears voluntarily. A hearing is conducted to determine the facts of the case. The prosecution begins the steps to prove that the accused has committed the offence beyond a reasonable doubt. And the defence can take the necessary steps to challenge the accusations and prove that the accused did not commit the offence. The steps in warrant cases instituted otherwise than on a police report are:

1. The preliminary hearing of the prosecution’s case.
2. Discharge of accused if the accusation is baseless. (Section 245)
3. Framing of charge. (Section 246)
4. Explaining charge to the accused. (Section 246(2))
5. Conviction on a guilty plea. (Section 246(3))
6. Choice of the accused to recall prosecution’s witness. (Section 246(5))
7. Evidence for Prosecution. (Section 244)
8. Evidence for Defence. (Section 247)

The preliminary hearing of the prosecution case

This is the first step in the proceedings of the case after the accused is brought or appears before a magistrate. The Magistrate considers the accusations and determines if the accusations have any base and a case can be made out against the accused. If the Magistrate determines that no case has been made out as the accusations lack substance and are groundless than the case will be dismissed and the accused shall be discharged.

Discharge of accused

Section 245 of CrPC states that the accused shall be discharged by the Magistrate if no case has been made out against him by the prosecution, which if unchallenged would warrant his conviction. And nothing can prevent the Magistrate from discharging the accused at any previous stage if the accusations presented by the prosecution is considered baseless by the Magistrate.

Framing of charge

Once all the evidence is presented to the Magistrate by the prosecution and after the examination of said evidence is conducted by him, the Magistrate is of the opinion that there is a reasonable ground for the accusations mentioned in the complaint and the accused is capable of committing the offence; a charge is framed and a fair trial is conducted. The accused is given an opportunity to defend himself. In the case of Ratilal Bhanji Mithani vs The State Of Maharashtra, 1978, it was determined that there were reasonable grounds to believe the accused had committed the offence, and the Magistrate began the trial proceedings by rejecting the dismissal of the case under Section 246(1).

Explaining the charge to the accused

Section 246(2) states that the charge against the accused should be read and explained to him, and he shall be asked whether he wishes to plead guilty to the charges or contest the said charges by proceeding with a trial.

Conviction on a guilty plea

Section 246(3) gives the accused an opportunity to plead guilty and present himself in mercy of the court. The Magistrate has the authority to record the guilty plea, convict and punish the accused as he sees fit. If the accused does not plead guilty, a subsequent hearing shall be held and the accused will be granted a fair trial. The Magistrate may state in writing, the reasons he thinks fit for recalling any witnesses for a cross-examination and if so, which witnesses of the prosecution, whose evidence has been recorded. The same reasons are recorded and prosecution’s witnesses are recalled for cross-examination by the Magistrate.

Choice of the accused to recall prosecution witnesses

Sub-section (5) and (6) under Section 246 empowers the accused to recall any witness named by the accused and perform a cross-examination or re-examination, after which they are discharged. The evidence of remaining witnesses provided by the prosecution is taken and they shall be discharged after cross-examination and re-examination as seen necessary. The application of this can be observed in the case of Varisai Rowther And Anr. V. Unknown, 1922.

Evidence for prosecution

Section 244 states that in warrant cases instituted otherwise than a police report and filed directly with the Magistrate, the accused is presented before the Magistrate who begins the hearing process by summoning the witnesses named by the prosecution and taking all the pieces of evidence produced as such. All evidence must be taken into consideration as under Section 138 of the Indian Evidence Act and filed with the record by the Magistrate.

Steps in evidence presentation of prosecution.

The accused cannot be charged by the Magistrate until the prosecution names witnesses or presents evidence in relation to the case. All the important evidence is collected after the witnesses are examined and the Magistrate determines if there is enough substance to frame a charge against the accused. The case cannot proceed further until the prosecution names witnesses and evidence is collected, examined and recorded as can be seen in Gopala Krishnan V. State Of Kerala. The magistrate is not obligated to file summons for the presence of a witness, but it is the responsibility of the prosecuting party to file an application with the Magistrate to request the summons of witnesses who shall present themselves before the court on a specified date and time as seen in Parveen Dalpatrai Desai V. Gangavishindas Rijharam Bajaj.

Summoning witnesses

The application is made to the Magistrate by the prosecution to summon any witnesses and the Magistrate issues the order to summon any witnesses or produce any document or thing in relation to the case as seen in Jethalal V. Khimji. 

In the case of P.N. Bhattacharjee V. Shri Kamal Bhattacharjee, 1994, the Gauhati High Court observed that the complainant was making extra efforts to order a summons to the witnesses and it was the duty of the Magistrate to order a summon to all witnesses before giving the order of dismissal just because the witnesses do not turn up. 

The Magistrate can also deny to examine witnesses whose names were not mentioned under the list provided by the prosecution initially by rejecting the application. However, a second application can be made to summon more witnesses other than the ones mentioned in the list and the Court is bound to issue summons to them as seen in Jamuna Rani vs S. Krishna Kumar, 1992.

Absence of complainant

Section 249 states that when the proceedings have been instituted upon complaint directly with the Magistrate, and the complainant is absent on the date and time of the proceedings set by the Magistrate; and the offence may be compoundable and non-cognizable, the Magistrate may at any time before the charges are framed against the accused, discharge him. It is the discretion of the Magistrate to discharge the accused or proceed with the case. But such a discharge is not considered judgement as observed in the case of Banta Singh V. Gurbux Singh, 1966. The accused cannot be discharged after the charges against him are framed despite the default of appearance by the complainant.

In course of trial, if the complainant dies, the Magistrate need not discharge the accused but rather continue the trial.

Examination of witnesses

The Magistrates examines the witnesses after summoning them to the Court. The law provides the accused to re-examine or cross-examine any witnesses produced by the prosecution after the charges against him are framed. However, this is not the same as an opportunity given for examination before the charges are framed. The witnesses are examined and the Magistrate collects testimonies and pieces of evidence and files them with the record based on their relevance to the case. The Magistrate may throw aside any baseless or irrelevant testimonies and pieces of evidence as he sees fit and orders the re-examination of any witness as seen necessary for the service of justice.

Record of evidence

All evidence brought before the court that holds relevance to the case and can link the accused to the offence committed beyond a reasonable doubt or any evidence which can get him acquitted is filed with the record by the Magistrate. Recorded evidence is secured away from parties that may be interested in tampering with them to gain the upper hand and prevent the application of justice.

Evidence for defence

The defence has the opportunity to present his side of the case and defend himself against the accusations of the prosecution, as mentioned under Section 247. A written statement may be put forwarded and the Magistrate shall record it. The accused can issue an application requesting the Magistrate to summon witnesses or the production of any document or thing with relevance to the case. And the Magistrate must issue such summons unless he feels they are baseless, irrelevant and done for the purpose of vexation and delay of the delivery of justice. The reasons for rejection of application must be recorded in writing by the Magistrate. Any witness that has already been cross-examined by the accused or had the opportunity to be cross-examined by the accused cannot be summoned again unless the Magistrate deems it necessary for the delivery of justice.

Conclusion of the trial

The trial can only end in either a conviction or acquittal of the accused. The decision of the Court with regards to the conviction or acquittal of an accused is known as judgement. If the accused is acquitted of the offence, the prosecution is given time and an opportunity to appeal the Court against the order of acquittal. If the accused is convicted after observing the evidence and judged to be guilty of committing the offence, both sides are given an opportunity to give arguments on punishment to be served. This can be often observed in conviction cases of life imprisonment or death penalty.

Judgement and connected matters

Judgement of acquittal or conviction

Section 248 states that once the decision is made after the Magistrate examines the evidence, the judgement is delivered. If the accused is not found guilty, an order of acquittal shall be recorded by the Magistrate under as stated under Section 248(1). If the accused is found guilty, the Magistrate after hearing the accused shall pass the sentence if he does not proceed in accordance with the provisions of Section 325 or Section 360. And this order of conviction shall be recorded as under Section 248(2).

Procedure in case of previous conviction

In a case where there is a previous conviction under the provisions of Section 211(7), and the accused does not admit that he has been convicted previously as alleged in the charge; the Magistrate may, after the conviction of accused shall collect evidence with respect to the alleged previous conviction and record that finding. However, no charge shall be read by the Magistrate, the accused shall not be asked to plead and the previous conviction shall not be referred to by the prosecution or adduced by it unless the accused has been convicted under Section 248(2).

Compensation for accusation without a reasonable cause

Section 250 discusses the procedure related to cases where a case is instituted on complaint to a magistrate or police officer and the Magistrate finds that there is no ground against the accused person. The accused shall be discharged immediately. The complainant shall be summoned to justify his complaint and explain why he should not pay compensation to the person against whom the complaint was made. The Magistrate shall then order to pay a particular amount of compensation not exceeding the amount of fine to the accused if he is satisfied that the reasons for filing the complaint are baseless and lacks ground.

If there is more than one accused person, the Magistrate shall order the complainant to pay compensation to all the accused. This can be observed in the case of Valli Mitha V. Unknown, 1919.

In the case of Abdur Rahim V. Syed Abu Mahomed Barkat Ali Shah, 1927, it was declared by the Court that the amount of compensation will only be paid to the accused and not his relatives or any other person.

Failure in payment of compensation amount by the complainant will result in simple imprisonment not exceeding 30 days. If the person is already in imprisonment then Section 68 and 69 of the Indian Penal Code will be applied. And a person who has been directed to pay compensation amount will be exempted from any criminal or civil liability in respect of the complaint. 

Section 250(6) states that a complainant or informant ordered by a Magistrate of second class to pay compensation exceeding one hundred rupees under Sub-section (2) can be appealed as seen in the case of A.M. Pereira vs D.P. Demello, 1924.

The compensation amount shall not be paid before the period of appeal lapses or after the decision of the appeal is given by the Court. And in cases where there is no relation to appeal, the amount will be paid after one month from the date the order was passed.

Conclusion

The Court decides if there is ground against the accusations of the complainant and the proceedings are initiated under the Magistrate’s discretion. Furthermore, we discussed that the evidence and witnesses presented by both the prosecution and defence are essential in determining the facts of the case and declare judgement. The judgement is taken by the Magistrate after both sides have presented their arguments. And if the accused is acquitted of the charges, the case is dismissed but the prosecution can file an appeal to challenge the decision of the court. But if the accused is convicted, both sides are allowed to present their arguments as to the extent of punishment which shall be inflicted on the convict. But the final decision as to the punishment lies with the Magistrate.

References

1. https://blog.ipleaders.in/difference-between-session-trial-and-warrant-trial/
2. https://blog.ipleaders.in/all-about-the-various-stages-of-criminal-trial-in-india/
3. https://www.lawnotes4u.in/2018/12/stage-of-criminal-trial-in-warrant-case.html
4. https://indiankanoon.org/doc/445276/
5. https://indiankanoon.org/doc/1953529/
6. https://indiankanoon.org/doc/1569253/

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 Trial of Warrant Cases by Magistrates Under Indian Contract Act, 1872 appeared first on iPleaders.

This article is written by Avni Kaushik. Here she discusses offer and acceptance under Indian Contract Act. 

Introduction

Contracts play an important role in our everyday life ranging from insurance policies to employment contracts. In Fact, we enter into contracts even without thinking, for example, while buying a movie ticket or downloading an app. The contract is oral or written agreements between two or more parties. Parties entering into a contract might include individual people, companies, non-profits or government agencies. The whole process of entering into a contract starts with an offer by one party, an acceptance by another party, and an exchange of consideration (something of value). Let us take a look at the aspect of offer and acceptance.  

Proposal or offer

• The entire process of entering into a contract begins with the proposal or an offer made by one party to another. The proposal must be accepted to enter into an agreement.
• According to the Indian Contract Act 1872, proposal is defined in Section 2(a)  as “when one person will signify to another person his willingness to do or not do something (abstain) with a view to obtain the assent of such person to such an act or abstinence, he is said to make a proposal or an offer.”

Features of a valid offer

The person making the offer/proposal is referred to as the “promiser” or the “offeror”. And the person who accepts an offer is referred to as “promisee” or the “acceptor”.

• The offeror must express his willingness to do or abstain from doing an act. Only willingness is not adequate. Or just an urge to do something or not to do anything will not be an offer.
• An offer can either be positive or negative. It can be a promise to do some act, and can also be a promise to abstain from doing any act/service. Both are valid offers.

The element of a valid offer

Here are some essentials which make the offer valid

There must be two parties 

There have to be at least two parties a person making the proposal and the other person agreeing to it. All the persons are included i.e, Legal persons as well as artificial persons.

Every proposal must be communicated

Communication of the proposal is mandatory. An offer is valid if it is conveyed to the offeree. The communication can either be express or implied. It can be communicated by terms such as word of mouth, messenger, telegram, etc. Section 4 of the Indian Contract Act says that the communication of a proposal is complete when it comes to the awareness of the person to whom it is made.

Example

 ‘A’ proposes, to sell a car to ‘B’ at a certain price. Once ‘B’ receives the letter, the proposal communication is complete.

It must create Legal Relations

An offer must be such that when accepted it will result in a valid contract. A mere social invitation cannot be regarded as an offer, because if such an invitation is accepted it will not give rise to any legal relationship.

Example

‘A’ invited ‘B’ to dinner and ‘B’ accepted the invitation. It is a mere social invitation. And ‘A’ will not be liable if he fails to provide dinner to B.

It must be Certain and definite

The terms of the offer must be certain and clear in order to create a valid contract, it must not be ambiguous.

It may be specific or general

 The specific offer is an offer that is accepted by any specific or particular person or by any group to whom it is made. Whereas, The general offers are accepted by any person.

Classification of offer

Some types of offers can be based on the design, timing, purpose, etc. Let us look at the offer’s classification.

Express Offer 

An offer may be made by express words, spoken or written. This is known as Express offer.

Example

When ‘A’ says to ‘B’, “will you purchase my car for Rs 2,00,000”?

Implied Offer  

An offer may be derived from the actions or circumstances of the parties.

This is known as Implied offer.

Example

There is an implied offer by the transport company to carry passengers for a certain fare when a transport company operates a bus on a particular route.

General Offer

A general offer is not made by any specified party. It is one that is made by the public at large. Any member of the public can, therefore, accept the offer and have the right to the rewards/consideration.

Example

‘A’ advertises in the newspaper that whosoever finds his missing son would be rewarded with 2 lakh. ‘B’ reads it and after finding the boy, he calls ‘A’ to inform about his missing son. Now ‘A’ is entitled to pay 2 lakh to ‘B’ for his reward.

 Specific Offer

It is the offer made to a specific person or group of persons and can be accepted by the same, not anyone else.

Example

‘A’ offers to sell his house to ‘B’. Thus, a specific offer is made to a specific person, and only ‘B’ can accept the offer.

Difference between General Offer and Specific Offer

Cross offer

Two parties make a cross-offer under certain circumstances. It means that both make the same offer at the exact time to each other. However, in either case, the cross-offer will not amount to accepting the offer.

Example

‘A’ and ‘B’ both send letters to each other offering to sell and buy B’s house at the same time. This is the cross offer made where one party needs to accept the offer of another.

Counter-offer

A counter-offer is an answer given to an initial offer. A counter-offer means that the original offer has been refused and replaced by another. The counteroffer offers three choices to the original offerer; accept, refuse, or make another offer.

Lapses and revocation of an offer 

• An offer lapses after a defined or reasonable time.
• An offer lapse by not being accepted in the specified mode
• An offer lapses by rejection. 
• An offer lapses by the offeror or the offeror’s death or insanity until acceptance.
• An offer lapses by revocation before acceptance.
• An offer lapses by subsequent illegality or destruction of the subject matter.

When communication is complete

• Communication of offer (section 4)

The communication of the offer is complete when it comes to the knowledge of the person to whom it is made.

Time of revocation of an offer

• Revocation of the offer (Section 4)

A proposal can be revoked at any time before the communication of its acceptance is complete as against the proposer but not afterward.

Revocation of the offer by the offeror

The offeror can withdraw his offer before it is accepted “the bidder can withdraw (revoke) his offer at an auction sale before being accepted by any auctioneer using any of the customary methods.

Example

‘A’ agreed to sell the property to ‘B’ by a written document which stated “this offer to be left over until Friday 9 AM”. on Thursday ‘A’ made a contract to sell the property to ‘C’. ‘B’ heard of this from ‘X’ and on Friday 7 AM he delivered to ‘A’ acceptance of his offer. Held ‘B’ could not accept A’s offer after he knew it had been revoked by the sale of the property to C. 

Acceptance

The Indian Contract Act 1872 defines acceptance in Section 2 (b) as “When the person to whom the proposal is made signifies his assent thereto, the offer is said to be accepted. Thus the proposal when accepted becomes a promise.” An offer can be revoked before it is accepted.

As specified in the definition, if the offer is accepted unconditionally by the offeree to whom the request is made, it will amount to acceptance. When the offer is accepted it becomes a promise.

Example

‘A’ offer to buy B’s house for rupees 40 lacs and ‘B’ accepts such an offer. Now, it has become a promise.

When an offer is accepted and it becomes promise it also becomes irrevocable. No legal obligation created by an offer.

Types of Acceptance

• Expressed Acceptance

If the acceptance is written or oral, it becomes an Expressed Acceptance.

Example

‘A’ offers to sell his phone to ‘B’ over an email. ‘B’ respond to that email saying he accepts the offer to buy.

• Implied Acceptance

If the acceptance is shown by conduct, It thus becomes an Implied acceptance.

Example

The Arts Museum holds an auction to sell a historical book to collect charity funds. In the media, they advertise the same. This says that a Mere Invitation to an Offer as per Indian Contract Act, 1872.

The invitees offer for the same. Offer is expressed orally, so the offer to buy is an Express Offer, but by striking the hammer thrice the final call is made by the auctioneer. This is called Implied Acceptance.

• Conditional Acceptance

A conditional acceptance also referred to as an eligible acceptance, occurs when a person to whom an offer has been made tells the offeror that he or she is willing to accept the offer provided that certain changes are made to the condition of the offer. This form of acceptance operates as a counter-offer. The original offeror must consider a counter-offer before a contract can be established between the parties.

Legal Rules and Conditions for Acceptance

• Acceptance must be absolute and unqualified 

The offeree’s approval cannot be conditional.For example, ‘A’ wants to sell her car to ‘B’ for Rs 2 lakh, ‘B’ can’t come back and says that she accepts the offer but will buy the same for Rs. 1 lakh.

• Acceptance must be told to the offeror

If the acceptor just accepts the offer in his head and he does not mention the same to the offeror, it can not be called an Acceptance, whether in an express manner or an implied manner.

• Acceptance must be recommended in the following mode

Acceptance is sometimes required in a prescribed/specified communication mode.

• In a reasonable amount of time, the acceptance is given

It’s very rare that an offer is always to get acceptance at any time and at all times. Therefore, the offer defines a time limit. If it does not, it should not be acknowledged forever.

Mere silence is not acceptance

If the offeree fails to respond to an offer made to him, his silence can not be confused with acceptance. But, there is an exception to this rule. It is stated that, within 3 weeks of the date on which the offer is made, the non-acceptance shall be communicated to the offeror. Otherwise, the silence shall be communicated as acceptance.

When communication is complete?

• Communication of acceptance (Section 4)

Communication of acceptance is complete when it is put in the course of transmission to him as to be out of the power of the acceptor to withdraw the same and when it comes to the knowledge of the proposer.

Time of revocation of acceptance

An acceptance may be revoked at any time, but not afterward, before the communication of the acceptance is complete as against the acceptor.

Conclusion

Examination of offer and acceptance is a standard contract law method used to assess whether a two-party arrangement exists. An offer is a sign of their willingness to agree on certain terms from one person to another. If there is an express or implied agreement, a contract will then be formed. A contract is said to come into being when the acceptance of an offer has been told to the offeror by the offeree. 

The communication of the offer shall be complete when it comes to the knowledge of the person to whom the offer is made and the communication of the acceptance shall be complete when the acceptance is put in a course of transmission to the offeror. Therefore, offer and acceptance are the essential elements of a contract and in either case, it should be done on the basis of one’s free will and with the intention of concluding a legally binding agreement.

References

1. https://blog.ipleaders.in/definition-essentials-offer-acceptance/

2. https://thefactfactor.com/facts/law/civil_law/contract_laws/indian_contract_act/communication-of-acceptance/2575

3. https://law.freeadvice.com/general_practice/contract_law/kind_acceptance.htm

4. https://www.toppr.com/guides/business-laws/indian-contract-act-1872-part-i/acceptance/

5. https://www.legalbites.in/offer-and-acceptance/

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 Offer and Acceptance Under Indian Contract Act, 1872 appeared first on iPleaders.

This article is written by Sanjana Sen, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from Lawsikho.com. Here she discusses “Constitutionality of the Provisions on Compulsory and Statutory Licensing in the Copyright Act”.

Introduction

• Intellectual Property Rights (IPR) is a right given to the creator for a creation, who enjoys exclusivity over such creation for a specified period of time or as mentioned in the respective laws under which such product falls. The laws that govern IPR in India are as follows: (i) Trade Marks Act, 1999 (ii) The Patents Act, 1970  (iii) The Copyright Act, 1957 (iv) The Designs Act, 2000 (v) The Geographical Indication of Goods (Registration and Protection) Act, 1999 (vi) The Protection of Plant Varieties and Farmers Rights Act, 2001 (vii) The Information Technology Act, 2000 and the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement which is administered by World Trade Organization (WTO).
• Copyright Act was enacted with the intention to protect the original works of a person. Such original work shall relate to literary, artistic, dramatic, musical works, sound recording & cinematographic films. To motivate creation and make use of such creativity, Copyright Act gave rights in toto to the owner/ author of the work.
• These rights are transferable and assignable. Once the owner/ author assigns, transfers or license his right to any person, such person is deemed to have rights to make copies of the original work, reproduce the work in any material form, perform the work in public/ communicate to the public, to make any translation or adaptation of the work and so on.
• However, with the growth of Intellectual Property Rights, the complexities also tend to increase. When a default takes place, we not only look into the law that governs the defaulting issue but also other related laws from where we can either sue or get relief from. One such topic that has been making news nowadays is with regards to the Constitutionality of the provisions relating to Compulsory and Statutory Licensing in the Copyright Act, 1957.
• Constitution is the supreme law in India and all the Acts (Central or State) falls under the purview of the Constitution. 
• Let us discuss in detail how and why the provisions of Compulsory and Statutory Licensing under the Copyright attracted the constitutionality aspect.

Distinguishing Compulsory Licensing from Statutory Licensing

• Licensing a work means the Licensor (owner) giving rights to the Licensee to use his work by following a procedure and paying a statutorily prescribed fee.
• There is however no proper distinction between Compulsory and Statutory License. Both the terms are often used interchangeably in various jurisdictions. However, the Indian Copyright Act tries to make a slight difference between them in terms of fee. In case of Compulsory Licensing, the royalty is kept to be negotiated by the parties whereas in Statutory Licensing, the royalty is prescribed by the Copyright Board. In Statutory Licensing, no permission is required to be taken from the owner to use his work as the permission is given by the Statute unlike in Compulsory Licensing.
• This can be derived from the Act itself under sections 31 to 31 D.

Provisions Relating To Compulsory And Statutory Licensing Under Copyright Act

• Chapter VI of the Copyright Act covers the provisions relating to Licensing. Let us discuss the provisions in order to understand the difference between statutory and compulsory licensing.
• Section 30 deals with Licenses by owners of copyright
• The owner of any existing or future work may grant any interest to another person by way of licensing, made in writing by him or his duly assigned agent.
• If the license related to future work then the interest is deemed to be granted only when the work comes into existence.
• Further, if the licensee dies before the interest is granted to him (in case of future works), then his legal representative shall, in absence of any provision contrary in the license, be entitled to any benefit arising out of the license. For example: A, the Licensor contracts with B, the Licensee for a future work i.e. B can commercially exploit A’s work for a specified period and give a certain amount of royalty to A as agreed between them after A’s work has been in public for a period of 2 years. After 1 year of the contract, B dies. The work will then be taken care by the legal representative and the contract shall be performed in the same way as it would be performed by B if would be alive.

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Compulsory Licenses

• Section 31 deals with compulsory license in works withheld from public
• Meaning – Compulsory license means that the use of owner’s rights against payment is either set by law or determined through some form of adjudication or arbitration. In other words, prior permission from the right owner is not required if the mandate provided by law is met with.
• The section states that if the owner of the rights has refused to republish or allow republication or allow performance or allow communication by way of broadcast to the public, the aggrieved person may reach out to the Appellate Board. The Appellate Board, after giving reasonable opportunity of being heard to the owner, may hold an inquiry. If the Board is satisfied that the grounds put by the owner are not reasonable then it shall direct the Registrar of Copyrights to grant the license to the complainant upon payment of such fees to the owner.
• Section 31 A deals with compulsory license in unpublished or published works
• In case any (i) unpublished work, (ii) published work or (iii) work communicated to the public is withheld from public in India and; the author/ owner is (i) dead, (ii) unknown or (iii) cannot be traced, any person shall approach the Appellate Board for a license to publish or communicate to the public such work or a translation in any language.
• Section 31 B deals with compulsory license for benefit of disabled
• Any person working for the benefit of disabled persons on a profit basis or for business may apply to the Appellate Board in such form and manner as prescribed in the Act and rules, for a compulsory license to publish any work in which copyright subsists for the benefit of such persons.

Statutory Licenses

• Section 31 C deals with statutory licensing to make cover versions 
• A person desirous of making cover versions, being a sound recording in respect of any literary, dramatic or musical work, where the sound recording of that work has been made by or with the license or with the consent of the owner, may do so in accordance of the provisions of the Act and rules 23 – 28 of the Copyright Rules, 2013 that talks about the procedure which needs to be followed to get the license.

For example: If S is desirous of making cover version of a musical work with the license of the owner, he may do so by following the procedure. He has to first serve a notice mentioning the intention of his work, provide copies of all the covers and labels with which such sound recording will be sold, shall pay in advance to the owner(s) of the copyright the fee as prescribed by the Appellate Board. The cover version shall not be changed to such an extent where the original meaning or composition is lost in entirety. S has to also follow all such procedures as mentioned in the Act and Rules. 

• Section 31 D deals with broadcasting of literary, musical works and sound recording
• Any broadcasting organization desirous of communicating to the public by way of broadcast or by way of performance of sound recording, musical or literary works, which has already been published may do so by giving prior notice of its intention to broadcast such work and by paying royalty fee to the copyright owners at the rate fixed by the Intellectual Property Appellate Board (IPAB).

Case Studies

• • Petitions have been filed challenging the constitutionality of section 31 D of the Copyright Act as per which a broadcasting organization desirous of communicating any sound recording to the public, may obtain  statutory license to do so, provided royalty is paid to the copyright owner(s) at the rate fixed by the Intellectual Property Appellate Board (IPAB).
  • With the ever-increasing growth of digital world, lot of aspects of legality relating to online streaming, broadcasting and rights of the owners are coming in picture. This attracted more news due to the “Office Memorandum” issued by the Department of Industrial Policy and Promotion (DIPP), Ministry of Commerce and Industry (Government of India) on 5th September 2016 which created a controversy.
  • It stated that “the words ‘any Broadcasting Organization desirous of communicating to the public..’ may not be restrictively interpreted to be covering only Radio and TV broadcasting as definition of ‘Broadcast” read with ‘communication to the public’ appears to be including all kinds of broadcast, including Internet Broadcasting. Thus Section 31 D not only covers Radio and TV Broadcasting but also Internet Broadcasting.”
  • The Hon’ble Supreme Court has made certain observations in Entertainment Network (India) Limited vs Super Cassette Industries Limited (2008) SCC 30 as under:
  • “The Copyright Act seeks to provide a balance between the rights of the owners to protect their original works and interest of the public at large to have access to the works.
  • The freedom to contract is the basic element of economic activity and an essential aspect of several Constitutional rights including The Freedom to Carry on Trade or Business (Art 19 (1)(g)) and Right to Property (Art 300 A) of the Constitution of India. But the said rights are not absolute; they are subjected to reasonable restrictions.” 
  • Hence, on the above mentioned ground, the Supreme Court held that various steps and principles have been laid down in order to strike a balance between the rights of the owners and the interest of the public; the interpretation of the statute should include the doctrine of “Purposive Construction” i.e. the law should be read keeping the purpose in the mind and thus, Section 31 and 31 D of the Copyright Act is not unconstitutional. 
  • This has been reiterated by the Bombay High Court in Tips Industries Ltd vs Wynk Music Ltd. Commercial Suit (L) no. 113 & 114 of 2018 Bom High Court. Justice Kathawalla has given a detail clarification pertaining to online streaming and statutory licensing and has ascertained that Section 31 D does not include Internet Broadcasting.

The case background is as follows

• Tips Industries Ltd. (Plaintiff), a music label in India, which controls copyright over a significant storehouse of popular music. In 2016, such storehouse was licensed to Wynk Music Ltd. (Defendant), an online music streaming service launched by Airtel. After expiry of the license in 2017, both parties attempted to renegotiate licensing terms for allowing Wynk to offer downloading and streaming of musical works owned by Tips. After negotiations broke down, Wynk took refuge by invoking Section 31D of the Copyright Act. 
• As such, Section 31D has been much a point of friction between online music service providers and music publishers and labels and in view of this, Tips challenged Wynk’s invocation of Section 31D and sued Wynk for infringement of their exclusive copyrights in sound recordings under Section 14(1)(e). 

Judgement

• Justice Kathawalla systematically knocked down defendant’s defenses to the claim for infringement and prima facie found Wynk to be guilty of direct infringement on two counts – 

1. for ‘selling’ works under Section 14(1)(e)(ii), for allowing downloading and offline listening of the plaintiff’s works; and 
2. under Section 14(1)(e)(iii) for communicating the plaintiff’s works to the public through their streaming service.

• The Bombay High Court clarified certain ambiguities pertaining to online streaming and statutory licensing under section 31 D. They are as under:

1. Section 31 D does not cover ‘downloading/ purchase’ of works – The court stated that Wnyk’s feature of allowing users to download songs and store it for unlimited period constitutes “sale” and not “communication to the public” and hence does not constitute “broadcast” under section 31 D of the Act. If it is streamed without an option to download, only then it will refer to be as broadcast.
2. Section 31 D does not cover internet broadcasting – Wynk contended that Wynk’s streaming services get subsumed under ‘radio broadcasting’ and very confidently stated that internet broadcasting is included under section 31 D upon relying on Department of Industrial Policy and Promotion (DIPP) Memorandum of 2016.
   The court rejected the above contention and stated that section 31 D was an exception to copyright and must be strictly interpreted. Section 31 D (3) and the rules framed thereunder specifically covers statutory licensing for radio and television broadcasting and not internet broadcasting. The court further relied on Rajya Sabha Parliamentary Committee on Copyright Amendment Act, 2012 and stated that the committee was well aware of internet streaming but it intentionally chose to cover only radio and television broadcasting under the scope of section 31 D.
3. Section 31 D cannot be invoked without prior fixation of royalty rates by IPAB – the Court firstly negated the powers of IPAB in fixing royalty rates for internet broadcasting as the section provides for only radio and television broadcasting. Secondly, the court indicated that according to section 31 D and the rules 29 – 31, fixation of rates by IPAB is necessary before invoking this section. Hence, the defendants don’t have a substantial case.

• Justice Kathawalla awarded Injunction to Tips Industries Ltd and ascertained that Section 31 D does not cover internet broadcasting.

Conclusion

The Owners and the public, both have their own interests and rights because of which the Copyright Act has been implemented but it won’t serve the purpose if the statutes are not interpreted correctly. Different lawyers will have different view but food for thought is that in the end, both the owner and the public get to such an understanding whereby they both get to enjoy their interest. It’s not that the Owner does not get his royalty or someone is not able to view certain works; it’s just the tendency of getting more which has led to such a debate.

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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