INDIAN LEGAL SYSTEM FOR ENTREPRENEURS <ul><ul><li>by : </li></ul></ul><ul><ul><li>DR. T.K. JAIN </li></ul></ul><ul><ul><li>AFTERSCHO ☺ OL </li></ul></ul><ul><ul><li>centre for social entrepreneurship </li></ul></ul><ul><ul><li>sivakamu veterinary hospital road </li></ul></ul><ul><ul><li>bikaner 334001 rajasthan, india </li></ul></ul><ul><ul><li>FOR – CSE & PGPSE STUDENTS </li></ul></ul><ul><ul><li>(CSE & PGPSE are free online programmes </li></ul></ul><ul><ul><li>open for all, free for all) </li></ul></ul><ul><ul><li>mobile : 91+9414430763 </li></ul></ul>
My words..... <ul><ul><li>My purpose here is to give an introductory lesson on legal system – which will help entrepreneurs. Ideally law should be small & easy to understand – so that people can implement it by heart. Unfortunately, it is written in a verbose and complicated language, that only experts can understand it. It is really unfortunate that some people feel pride on legal terminology (which contains lot of technical & foreign words, which can easily be replaced by simple words) I shall try to present it in simplified form, and let us pray that some person simplifies the Indian legal system. Let us change the society, change the world. Go with positive spirit. Please pass this presentation to all those who might need it. Let us spread knowledge as widely as possible. I welcome your suggestions. I also request you to help me in spreading social entrepreneurship across the globe – for which I need support of you people – not of any VIP. With your help, I can spread the ideas – for which we stand.... </li></ul></ul>
What is a presumption? A presumption is a rule of law that courts or juries may draw a particular inference from a particular fact or from particular evidence unless and untill the truth of such inference is disproved.
How many types of presumptions are possible ? 3 types : 1. presumption of law 2. presumption of facts 3. mixed presumptions
What is factum probandum? There are two types of facts in a case – facts directly related and indirectly related. Directly related facts are called factum probandum
What is Circumstantial evidence? These are indirect facts related to a case.
What are the secondary evidences in Indian Evidence Act (sec. 63)? certified copies of the document copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies (PHOTO COPY ) copies made from or compared with the originalcounterparts of documents Oral account of document by a person who has seen the document
What are the matters, on which you cant ask others to give evidence ? The following : Evidence of a Judge /Magistrate (Section 121) Communications during marriage; (Section 122) Affairs of State; (Section 123) Official communications; (Section 124) Source of information of a Magistrate or Police officer about crime; (Section 125) professional communication (Sections 126 and 129).
What are the cases when opinion of witness on a question whether of fact or law is relevant? 1. opinion of expert (sec. 45) 2. in case of handwriting – the person who knows the handwriting 3. in case of digital signature – the person who has given the digital signature 4. in other cases, where a person has special knowledge of the case
What is the difference between confession and admission? All confessions are admissions but not vice versa
Can confession become an evidence against persons other than confessor? No (exception : as per sec. 30 – co-accused / jointly accused )
What is an admission ? Admission means conceding something against the person making the admission
What is Res gestae ? facts which though not in issue, are so connected with a fact in issue as to form part of the same transaction
Can every fact be considered in evidence ? No no facts other than those having rational probative value should be admitted in evidence
What is fact in issue (law of evidence)? any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceedings, necessarily follows.
What is the effect of acknowledgement on period of limitation? The period of limitation will start from the date of acknowledgement (sec. 18 of law of limitation)
What are the days which are excluded from period of limitation, when we are calculating the period of limitation? 1. time spent in obtaining decree 2. time required to obtain consent of govt / court 3. time spent in a court having no juristidction 4. when the defendent was out of the country – that time is excluded
Can the parties fix two arbitrators for their dispute? No Although Section 10 of the Arbitration Act provides that, the parties are free to determine the number of arbitrators, provided that such number shall not be an even number. If they fail to determine the number of arbitrators, the arbitral tribunal shall consist of a sole arbitrator.
What are essential conditions of an arbitral award? 1. it must be signed 2. it must be dated 3. it must be in writing 4. should contain reasons for the decision
How many parts are there in arbitration & conciliation act 1996? 4 PARTS & 3 SCHEDULES Part one deals with Arbitration (Sections 2 to 43); Part two deals with enforcement of certain Foreign Awards (Sections 44 to 60); Part three deals with conciliation (Sections 61 to 81); and Part four contains supplementary provisions (Sections 82 to 86). Similarly schedule one contains provisions relating to convention on the Recognition and Enforcement of Foreign Arbitral Awards; Schedule two deals with Protocol on Arbitration Clauses and Schedule three contains provisions relating to Execution of Foreign Arbitral Awards.
WHAT ARE THE FEATURES OF AN INJUNCTION ? 1. It is a judicial process. 2. The object of this judicial process is to restrain or to prevent a wrongful act 3. The act restrained or prevented is a wrongful act.
When does the court permit rectification of instrument under specific relief act 1963? Rectification = removing an error / correction it is allowed in the followin cases : 1. both parties agree that the instrument didnt reflect the true intention 2. third party applies for it and both the parties of the instrument were innocent about the mistake (read sec. 26)
When does the court rescind a contract under specific relief act 1963? 1. when the party interested in the contract applies for it 2. when it is a voidable contract, and the party which can cancel it applies for it 3. when it is unlawful contract
Is it necessary to cancel the stamps under Stamp act ? Yes Section 12(1)(a) of Indian Stamp act : any person affixing any adhesive stamp to any instrument chargeable with duty which has been executed by another person MUST when affixing such stamp cancel the same so that it cannot be used again.
What are the modes of cancellation of stamp? As per Indian Stamp act : 1. writing name / signature on stamp 2. writing a line across the stamp
What is instrument under stamps act? Section 2(14) a document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded. instrument includes conveyances, leases, mortgages, promissory notes and wills, but not ordinary letters or memoranda or accounts.
Is an unsigned draft document an instrument? An unsigned draft document is not an “instrument”
What is a bail under Cr. P. C. It is temporary release from prison. It is the release of the accused from the custody of the officers of law and entrusting him to the private custody of persons who are sureties to produce the accused to answer the charge at the stipulated time or date. If a person accused of a non-bailable offence, is arrested or detained without warrant by an officer-in-charge of a police station or is brought before a Court, and is prepared at anytime while in custody or at any stage of the proceedings before such Court to give bail, such person shall be released on bail. Such police officer or the Court if it thinks fit may instead of taking bail from such person discharge him on executing a bond without sureties for his appearance as may be required (Section 436)
What is the difference between complaint & plaint ? Not much A complaint in a criminal case is what a plaint is in a civil case
Is the report by a police officer a complaint ? Generally No However, Section 2(d) : this may be taken as a complaint where after investigation it discloses commission of a non-cognizable offence. Police report means a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173 of Cr. P.C..
Can bail be granted for cognizable offence ? No cognizable offences are generally non-bailable Non cognizable offences are generally bailable
What is a charge under transfer of property act? When immoveable property of A is made a security for the payment of money with B, and the transaction does not amount to a mortgage, B has a charge on the property Charge = a legal right till the loan is paid
What are the various types of charges? A charge may be floating or fixed. A fixed charge is a charge on specific property but a floating charge is an equitable charge on all the assets for time being of a going concern.
What is Lis pendens? It is a a pending suit, action, petition etc.
What is the doctrine of Lis pendens? during the pendency of a suit in a court of law, property which is under litigation cannot be transferred.
What is a fraudulent transfer? Where a person transfers his property so that his creditors shall not have anything out of the property
What is Doctrine of Feeding the Grant by Estoppel If a person fraudulently or erroneously represents that he is authorized to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Example : A is not owner of a building but sells it to B for consideration (B is innocent). Later A actually purchases this building. Now A is bound to give it to B.
What is mens rea? Mens Rea a bad intention or guilt It is the main source of crime a person is punished for mens rea
What is a Complaint "Complaint" means any allegation made orally or in writing to a Magistrate (c(d) of cr.p.c.)
Who is a pleader ? a person who practises in a Court (sec. 2(q))
Who is a public prosecutor? any person appointed under Section 24 of Cr. P.C. ( Section 2(u))
What is the difference between summons and warrant ? Those cases which are punishable with imprisonment for two years or less are summons cases, the rest are all warrant cases. Procedure of warrant cases is given in Chapter 19 of Cr. P.c. But that of summons cases is given in Chapter 20
Mention of 5 types of courts to try criminal cases ? High court court of sessions Judicial magistrate of 1 st class Judicial magistrate of 2 nd class executive magistrate
What punishments can magistrates order under criminal procedure code ? (read sec. 29) : CJM (chief judicial magistrate) can pass an order for imprisonment for 7 years Magistrate of 1 st class can punish for upto 3 years Magistrate of 2 nd class can punish for upto 1 year
How is arrest made ? Sec. 46 authorises the person arresting to confine the body of the person to be arrested and for this the police officer or other person may use all necessary means to effect the arrest if there is forcible resistance.
When does the court issue search warrant ? As per sec. 93, the court issues a search warrant when : where the Court has reason to believe that a person summoned to produce any document or other thing will not produce it where such document or thing is not known to the Court to be in the possession of any person where a general inspection or search is necesary. However, a search warrant may be general or restricted in its scope as to any place or part thereof.
What is summary case ? summary case is a case which can be tried and disposed of at once. It applies to cases which can have imprisonment for a term maximum two years of imprisonment .
What is a cognizable offence? It is the case, where the police officer may conduct investigations without the order of a Magistrate.
What steps can be taken when warrant is not executed ? Action can be taken like : (i) issuing a proclamation (ii) attachment and sale of property of that person, who is absconding
Can a private person arrest another person? Yes, if that person commits a non-bailable and cognizable offence
Can police arrest without warrant ? Yes, in some cases The Cr. P. C. Details the various circumstances under which a police officer may arrest a person without a warrant (these are cognizable offences). Generally, non-cognizable offence requires a warrant before arrest.
What is FIR ? When you want to give information relating to a cognizable offence to a police officer, then the police officer will write down this information and read out it before you. You have to sign this page and it has to be kept in a book kept by such officer in such form as may be prescribed by the State Government, this is called First Information Report (FIR).
Is registration of will compulsory under registration act 1908 ? No. Registration of documents relating to immovable property & some such matters is compulsory (not all cases). But, registration of will is optional.
By what time can I get a document registered under registration act 1908? In four months from date of execution.
When is registration complete under registration act 1908 ? Take the document for registration to the registrar's office. The Registering Officer will endorse the document with the word ‘Registered’, and sign it, after all formalities are complete,. The endorsement will be copied in Register. After registration, the document will be returned back to you.
Is the document effective from the date of registration? No A document takes effect from its date of execution and not from date of registration.
Can I get registration anywhere ? No Documents relating to immovable property should be registered in the office of Sub-Registrar of sub-district within which the whole or some portion of property is situated Other documents can be registered anywhere.
Should I get a document executed out of India for registration ? Yes, A document executed outside India is not valid unless it is registered in India (read sec. 26 & Nainsukhdas v. Gowardhandas, AIR 1948)
Is a lease for 3 months, also required to be registered? No - If a lease is of a very high value but is neither from year to year, nor for any term exceeding one year, nor reserving a yearly rent, it does not require registration under Section 17(1)(d). but if this lease were for more than 1 year, it would require registration.
Who can present a will for registration? The testator, or after his death, any person claiming as executor (sec. 40)
What are the documents that dont require registration? Documents executed in favour of government. (All documents executed in favour of government and government maps shall for the purposes of Sections 48 and 49, be deemed to have been registered as per registration act (Section 90) )
What will happen in case of non-registration? Section 49 of Registration Act :if a document which is rquired to be registered under sec. 17 will not effect transfer of immovable property and will not create any evidence.
Can an unstamped unregistered instrument be used for collateral security? Yes, an unstamped instrument is not at all admissible in evidence even for collateral purpose. But an unregistered instrument originally unstamped, if duly stamped subsequently can be admitted in evidence even though it continues to be unregistered for collateral purpose
How is a will delivered to the registrar ? Any testator (the person making will) may, either personally or through agent, deposit with any Registrar his will in a sealed cover superscribed with the name of the testator and that of his agent, if any, and with a statement of the nature of the document. Registrar will write about it in Book No. 5And keep the sealed cover in fire-proof box. The will can be withdrawn by application (Sections 42 to 46).
Can you demand information from a public servant ? Yes, there is one PIO (public information officer) in every government department, you may demand information from that person. PIO, on receipt of a request, shall as expeditiously as possible, and in any case within 30 days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons mentioned in sec. 8 & 9 under RTI act 2005
Who is a Chief Information Commissioner ? CIC is person of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. CIC shall be appointed for a term of 5 years from date on which he enters upon his office or till he attains the age of 65 years, whichever is earlier. CIC is not eligible for reappointment.
What is a judgement under civil procedure code? (Section 2(9)) of the Civil Procedure Code : it is the statement given by the Judge on the grounds of a decree or order
What is a decree under civil procedure code? "Decree" is defined in Section 2(2) of the Code as (i) the formal expression of an adjudication which, so far as regards the Court expressing it; (ii) conclusively; (iii) determines the rights of the parties; (iv) with regard to all or any of the matters in controversy; (v) in the suit and may be either preliminary or final.
Who is a judgement debtor? any person against whom a decree has been passed or an order capable of execution has been made. [Section 2(10)]
What is an order ? Section 2(14) : the formal expression of any decision of a Civil Court which is not a decree.
What is the the doctrine of Res Judicata ? It puts a bar or restraint on repetition of litigation of the same issues. It is a based on the principle of law that there must be a limit or end to litigation on the same issues.
What is setoff under civil procedure code? Order 8, Rule 6 : It is a reciprocal acquittal of debts between the plaintiff and defendant.
What are interlocutory orders under civil procedure code ? The Court may, on the application of any party to a suit order the sale, by any person, and in such manner as it thinks fit, of any movable property, being the subject-matter suit
What is a suit ? It is a civil action started by presenting a plaint in duplicate to the Court containing concise statement of the material facts, on which the party pleading relies for his claim or defence. The facts must be presented on affidavit
What is cause of action a bundle of essential facts which the plaintiff has to prove in order to sustain his action. There are 2 things : 1. right 2. infringement of right
What is misjoinder of cause of action? If the plaintiffs are not jointly interested in all the causes of action there is misjoinder of causes of action.
What is misjoinder of parties ? There are more than 1 parties as plaintiff or defendants. Thus the following are essential for this : (i) the right to relief must arise out of the same act or transaction brought by the plaintiffs or against the defendants, (ii) there is a common question of law or fact.
What is an affidavit ? It is a written statement of the deponent on oath duly affirmed before any Court or Magistrate or any Oath Commissioner appointed by the Court or before the Notary Public.
In how much time should judgement must be given ? The court should give judgement within a period of 30 days from the date on which the hearing of the case was concluded. However, if it is not practicable to do so on the ground of exceptional and extra ordinary circumstances of the case, the Court must fix a future day which should not be a day beyond sixty days (read Kanhaiyalal v. Anup Kumar, AIR 2003 SC 689)
How many types of appeals are possible in Civil procedure code? 1. Appeals from original Decrees (Sections 96-99-Order 41) 2. Second Appeals (Sections 100-103-Order 42) 3. Appeals from Orders (Sections 104-106, 0.43 r. 1-2) 4. Appeals to the Supreme Court (Sections 109 and 112, Order 45)
What is revision ? Section 115 : The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court
What is a tort? ‘Tort’ means wrong. But every wrong or wrongful act is not a tort. Tort is really a kind of civil wrong as opposed to criminal wrong. Wrongs, in law, are either public or private. Suppose someone abuses you & defame, it is a tort. If some one stabs you, that will not come in Tort, but it will come in criminal laws.
Essential elements of tort A Tort has following : (i) a wrongful act or omission of the defendant; (ii) the wrongful act must result in causing legal damage to another; and (iii) the wrongful act must be of such a nature as to give rise to a legal remedy. All these 3 conditions must be fulfilled
What is a prosecution? To start a criminal suit involving the process of pursuing formal charges against an offender to final judgment example : A procecutes B in the court for embazzlement.
What is malicious prosecution ? It is a type of tort. Prosecution is to file a case against a person. 1. There must have been a prosecution of the plaintiff by the defendant. 2. There is no reasonable and probable cause for that prosecution. 3. The defendant must have acted maliciously 4. The plaintiff must have suffered damages due to prosecution. 5. The prosecution must have terminated in favour of the plaintiff.
What are the types of tort ? Battery (a type of attack) attack / assault bodily harm Malicious prosecution Defamation false imprisonment Nervous shock
What is battery? It is the act of using force againt another person that results in either bodily injury or offensive touching. It is unlawful physical contact – which may or may not result in injury
What is defamation? spoken or written words that falsely and negatively reflect on a living person's reputation
What are the judicial remedies against tort ? (i) Damages (suppose a person defames you, you can file a suit for defamation and ask for Rs. 10 lakhs) (ii) Injunction (iii) Specific Restitution of Property.
What is injunction? It is an order of a court requiring a person, corporation, or government entity to stop doing something and refrain from doing that thing in the future. Suppose Ravi defames you, you can go to the court for injunction and court will order Ravi not to do it in future.
What is the difference between restitution and compensation? Restitution = If you do something wrong and cause damage, you must undo the damage Restitution = gains-based recovery compensation = loss-based recovery
What is Distress Damage Feasant? to distrain things which are doing damage. Suppose cattle comes to your field and are damaging your crop. You can tie these cattle.
What are the extra judicial remedies ? You can take some action to avoid loss from the torts of others : 1. self defence 2. prevent the unlawful trespass (illegal encroachment) 3. stop his own action relating to the tort 4. try to abate (to reduce) the tort
What the ways of presenting evidence? There are 3 methods : 1. oral 2. personal 3. documentary
Example of documentary evidence? Suppose you present a document in the court
What is evidence ? When facts are brought before the court – it is called evidence
What is UNCITRAL? It is an international agency regarding arbitration for international buisness. United Nations Commission on International Trade Laws
What is a specific relief ? a relief in specie. Suppose you made a contract to buy a particular car, the person says he wants to sell another car. But you insist on the car that you had chosen. You go to the court for this, which enforces your contract. This is an example of specific relief
What is arbitration? It is the means by which parties to a dispute get the same settled through the intervention of a third person (or more persons) but without recourse to a court of law. Suppose A and B fight over some matter relating to their contract. They agree that C is a neutral person. They refer their dispute to C, who gives his judgement, and both A and B have to follow the judgement. This is arbitration.
What is the law governing arbitration? The Arbitration and Conciliation Act, 1996
What is the law relating to limitation period? It is a time limit on the period within which a party can commence legal proceedings. Suppose you make a contract with Ravi, who doesnt implement the contract. You can take a legal action against Ravi. But this action has to be taken in a time limit. It cant be that you go to the court after 40 years of the contract. You have to go to the court within a time frame (which is fixed in law of limitation).
Can you still enforce the old contract ? Yes, if the other part agrees. It is not your right to forced the court to order him. If you can use some legal means / judicial process to enforce the contract, go ahead : “Thus if a claim is satisfied outside the Court of law after the expiry of period of limitation, that is not illegal.” (Bombay Dying & Mfg. Co. Ltd. v. State of Bombay, AIR 1958 SC 328.)
What is Doctrine of sufficient cause? In some cases, the period of limitation under the law of limitation may be extended. Section 5 says that except Order XXI of the Code of Civil Procedure, 1908 there are some other matters, (specified in Sec. 5), where limitation period may be extended.
WHAT IS CONTINUOUS RUNNING OF TIME? Time once started cannot stop
What do you understand from Estoppel? one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief example : Ajay shows that he is your agent, while actually he is not your agent. You remain silent and an another party believes that Ajay is your agent and gives some goods, which are swindled by Ajay – thus you are bound here by the act of Ajay.
When the court cant enforce specific relief ? A court cant enforce specific relief in favour of a person : (a) who cant get compensation for the breach of contract (b) who is incapable of performing his own part (c) who fails to ensure that he has performed / is willing to perform his part A court cant enforce specific relief against a person when it is relating to personal service or when personal supervision by court is required
A bequeaths land to B for his life, with remainder to C. A dies, B enters on the land, but C, without B’s consent, obtains possession of the title deeds Solution : B may recover them from C.
A receives a letter addressed to him by B. B gets back the letter without A’s consent. Solution : A can recover it again from B Oliver v. Oliver (1861)
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