Indian legal system for entrepreneurs

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This material is for PGPSE / CSE students of AFTERSCHOOOL. PGPSE / CSE are free online programme - open for all - free for all - to promote entrepreneurship and social entrepreneurship PGPSE is for those who want to transform the world. It is different from MBA, BBA, CFA, CA,CS,ICWA and other traditional programmes. It is based on self certification and based on self learning and guidance by mentors. It is for those who want to be entrepreneurs and social changers. Let us work together. Our basic idea is that KNOWLEDGE IS FREE & AND SHARE IT WITH THE WORLD

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Indian legal system for entrepreneurs

  1. 1. 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>
  2. 2. 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>
  3. 3. What are the main laws relating to weights and measures ? Standards of Weights and Measures (Enforcement) Act, 1985 Standards of Weights and Measures (Packaged Commodities) Rules, 1977
  4. 4. What is legal metrology ? Legal Metrology is the name by which the law relating to weights and measures is known in international parlance. Legal Metrology is very vital for scientific, technological and industrial progress of any country. It includes the establishment of national standards of weights and measures an their proper enforcement
  5. 5. What is the role of OIML ? The International Organization of Legal Metrology (OIML) is an intergovernmental treaty organization consisting of various countries. It was established in 1955 in order to promote the global harmonization of legal metrology procedures.
  6. 6. Who enforces weights and measures under weights and measures act – centre or state? Either can enforce after the 42nd Amendment to the Constitution the enforcement of wights and measures has been placed under the concurrent list to the Constitution.
  7. 7. Which are the bodies under the directorate of weights and measures ? 1. Indian Institute of Legal Metrology; 2. Regional Reference Standard Laboratories, at Ahmedabad and Bhubaneswar, etc. 3. Regional units at Kolkata, Mumbai, Chennai and Delhi.
  8. 8. Which are the apex govt. Bodies for enforcement of wights and measures in India ? <ul><li>Ministry of Consumer Affairs,Food and Public Distribution, </li></ul><ul><li>Directorate of Weights and Measures, New Delhi </li></ul><ul><li>the Controllers of Legal Metrology (in different states) </li></ul><ul><li>The Directorate of Weights and Measures </li></ul>
  9. 9. What is calibration ? section 2(a): it means all the operations which are necessary for the purpose of determining the values of the errors of a weight / measure /to determine the other metrological properties of such weight or measure, and includes fixing of the positions of the guage-marks or scale-marks of a weight or measure, or in some cases, of certain principal marks only, in relation to the corresponding values of the quantity to be measured.
  10. 10. What is reference standard ? the set of standard weight or measure which is made or manufactured by or on behalf of the Central Government for the verification of any secondary standard [Section 2(t)].
  11. 11. What is secondary standard under weights and measures act ? Secondary standard means the set of standard weight or measure which is made or manufactured by or on behalf of the Central or State Government for the verification of any working standard [Section 2(x)]
  12. 12. Is it necessary for importer of weights every person who intends to commence or continue business as an exporter or importer of any weight or measure, such as balances for testing weights, weighing and measuring instruments, shall register himself with the Director of Weights and Measures in the prescribed form together with fee not exceeding ten rupees
  13. 13. What are the main rules relating to STANDARDS OF WEIGHTS AND MEASURES (PACKAGED COMMODITIES) RULES, 1977 Rule 4 :Prepacked packages must contain declarations regarding weights The declarations have to be made on every package (Rule 6) commodities specified in the 3 rd Schedule msut be in standard quantities as are specified in that Schedule..(rule 5)
  14. 14. Are there requirements relating to display size of packaged commodities ? Yes The height of letters in the declaration should not be less than 1mm height. When blown, formed, moulded, embossed or perforated the height of letters should not be less than 2mm. However, the width of the letter or numeral should not be less than one third of its heights, except in the cases of numerals/letters specified under the rule 7 & other provisions
  15. 15. Is it necessary to mention address of manufacturers on packaged commodities ? Yes complete address of the manufacturer, or where the manufacturer is not the packer, the name and address of the manufacturer and the packer and in case of imported packages, the name and address of the importer must be given (rule 10) shorter address is allowed if registered (rule 36)
  16. 16. For whom is registration under weight and measures act necessary ? Every individual, firm, Hindu undivided family, society, company or corporation who or which pre-pack any commodity or imports any commodity for sale, distribution or delivery is required to make an application for registration
  17. 17. Can weights / measures of below standard weight be prepared ? No Manufacture of non-standard weight or measure is prohibited.
  18. 18. What is the meaning of principal display panel ? total surface area of the package where the information is required to be given.
  19. 19. Who is a dealer under weights and measures act ? Sec. 2(c) : the person who is in the business of buying, selling, supplying, importing or distributing any weight or measures
  20. 20. What is working standard under weights and measures act ? set of standard weight or measure which is made or manufactured by or on behalf of Government for the verification of any standard weight or measure, other than a national prototype or national reference or secondary standard [Section 2(ze)].
  21. 21. What is the meaning of stamp in weights and measurea law ? A mark (on weight / measure) (i) certifying that the weight or measure conforms to the standard (ii) indicating that any mark which was previously made thereon has been obliterated.
  22. 22. Are we bound by international systems of wights and measures ? Yes India is a signatory to the Metric Convention of 1895
  23. 23. What is capital account transaction? Any transaction which alters the assets or liabilities including contingent liabilities, outside India of persons resident in India or assets or liabilities in India of person resident outside India and includes (sec. 2e)
  24. 24. What are current account transactions under FEMA? Receipts or payments in connection with foreign trade, other current business, services and short term banking and credit facilities in the ordinary course of business; payments due as interest on loan and as net income from investments; remittances for living expenses of parents, spouse and children residing abroad and expenses in connection with foreign travel, education and medical care of parents, spouse and children (sec. 2j)
  25. 25. What are the regulations on current account transactions ? Current account transactions through authorised dealers are permitted. Rules are : Foreign Exchange Management (Current Account Transactions) Rules, 2000
  26. 26. What is foreign security? shares, stocks, bonds, debentures or any other instrument denominated or expressed in foreign currency (sec 2o)
  27. 27. What is foreign exchange as per sec 2n of FEMA? Foreign currency + deposits, credits, balance payable in foreign currency, drafts, travellers cheques, letters of credit, bills of exchange expressed or drawn in Indian currency but payable in any foreign currency . Any draft, travellers cheque, letters of credit or bills of exchange drawn by banks, institutions or persons outside India but payable in Indian currency are not foreign exchange.
  28. 28. Can you deal in capital account transactions also ? Yes – if it is upto $ 25000 and is for the transactions mentioned in schedule I However, no part this foreign exchange can be used for remittance directly or indirectly to countries notified as non-co-operative countries and territories by Financial Action Task Force (FATF)
  29. 29. What are the permissible foreigh exchange transactions for Indian residents ? 1. investment in foreign securities. 2. foreign currency loans 3. transfer of immovable property outside India 4. guarantees 5. export, import and holding of currency/currency notes 6. loans and overdrafts from a person resident outside India; 7. maintenance of foreign currency accounts ; 8. insurance policy / other remittance 9. loans and overdrafts to a person resident outside India; 10. sale and purchase of foreign exchange derivatives
  30. 30. What are the permissible foreigh exchange transactions by residents outside India ? 1. Investment in Indian securities 2. Acquisition and transfer of immovable property . 3. Guarantee 4. Import and export of currency/currency notes 5. Deposits with / from a person resident in India 6. Foreign Currency accounts 7. Remittance outside India of capital assets
  31. 31. What are the restrictions on ADR / GDR proceeds ? ADRs/GDRs are issued on the basis of the ratio worked out by the Indian company in consultation with the Lead Manager to the issue. The proceeds have to be kept abroad till actually required in India. However, they may be invested in treasury bills / with authorised dealers – foreign branches / specified securities
  32. 32. What are the limits for automatic route for JV / WOS? JV = joint venture WOS = wholly owned subsidiary the limits are : 1. In case of company : not exceeding 300 per cent of the net worth of the Indian party 2. In case of partnership : not exceeding 200 per cent of the net worth of the Indian party
  33. 33. Can Indian company acquire shares of a foreign company in exchange of ADR / GDR ? YES but as per the Scheme for issue of Foreign Currency Convertible Bonds and Ordinary Shares (through Depository Receipt Mechanism) Scheme, 1993,
  34. 34. What are the funds which may be used for JV / WOS abroad ? 1. from AD Bank in India; 2. capitalisation of exports; 3. swap of shares 4. proceeds of External Commercial Borrowings (ECBs) / Foreign Currency Convertible Bonds (FCCBs); 5. in exchange of ADRs/GDRs 6. EEFC account ; 7. from the funds of ADR / GDR issues
  35. 35. What are current account transactions under FEMA ? Section 5 of the FEMA allows any person to sell or draw foreign exchange to or from an authorised person if such sale or drawal is a current account transaction as defined under Section 2(j) of the Act. Drawal includes L/C, international debit / credit card and other such transactions (subject to some restrictions)
  36. 36. What are the cases, when drawals is not permitted ? Drawals from the following are not permitted : 1. From lottery winnings etc 3. for purchase of lottery tickets etc. 4. Payment of commission on exports made towards equity investment in Companies. 5. Commission on exports under Rupee State Credit Route ( except upto 10% of invoice of exports of tea & tobacco). 6. Payment related to ‘call back service’ of telephone. 7. interest income from Non-resident Special Rupee Scheme Account.
  37. 37. When do you need prior approval of central government for foreign exchange transactions ? For all the matters mentioned in Schedule II of FEMA. However, this does not apply to the cases where the payment is made out of funds held in Resident Foreign Currency Account (RFC) of the remitter.
  38. 38. What are the sectors, where FDI funds cannot be used ? 1. Business of chit fund 2. Nidhi Company 3. Agricultural or plantation activities 4. Real estate business, or construction of farm houses (exclusing townships, roads, bridges, etc. ) 5. Trading in Transferable Development Rights (TDRs) 6. lottery / gambling etc. 7. retail trading 8. atomic energy .
  39. 39. What is the limit for FCCB in automatic route ? Foreign Currency Convertible Bonds (FCCBs) not exceeding US$ 500 million (subject to some restrictions)
  40. 40. When do you need prior permission from RBI for foreign exchange drawals? 1. Release of exchange exceeding US$ 10,000 or its equivalent in one calendar year, for one or more private visits to any country (except Nepal and Bhutan). 2. Gift remittances exceeding US$ 5,000 per donor per annum. 3. Donation exceeding US$ 5,000 per remitter/donor p.a. 4. for US$ 5,000 for persons going abroad for employment. 5. for emigration exceeding US$ 5,000 or amount prescribed by country of emigration. 6. Remittance for maintenance of close relatives abroad
  41. 41. Is cartel allowed in India ? Yes – but it is regulated by competition act “Cartel”( Section 33(1)(d)) is an association of producers, sellers or distributors, traders or service providers who, by agreement amongst themselves, limit control or attempt to control the production, distribution, sale or price of or, trade in goods or provision of services.
  42. 42. What is the difference between the meaning of consumer in consumer protection act from competition act ? Under the Competition Act even if a person purchases goods or avails of services for commercial purpose, he will be a Consumer, whereas for purposes of Consumer Protection Act, a person purchasing goods/ availing services for commercial purposes is not a “Consumer” and can not seek relief under consumer protection Act.
  43. 43. Do government companies also come within the purview of competition act ? Yes, although sovereign function of Government are excluded but Government Departments performing non-sovereign functions for consideration are subject to jurisdiction of Competition Commission of India .
  44. 44. What is the difference between the meaning of services in consumer protection act from competition act ? Under the Competition Act, the services of industrial or commercial nature also fall within the scope of the Act whereas under the Consumer Protection Act, the services of commercial nature or for business or industrial purposes are excluded for interpreting deficiency in the supply thereof and for determining compensation, if any, payable to them
  45. 45. Can firms in the same industry make an agreement to limit the production of goods to a certain limit ? No, any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or services, which causes or is likely to cause an appreciable adverse effect on competition is not allowed in competition act 2002. Section 3(2) further declares these agreements, which fall in sec. 3(1) of competition act 2002, to be void (invalid).
  46. 46. What types of agreements can cause adverse impact on competition as per competition act 2002 ? 1. tie-in agreement; 2. exclusive supply agreement; 3. exclusive distribution agreement; 4. refusal to deal; 5. resale price maintenance;
  47. 47. What is tie in agreement? “ tie-in agreement” includes any agreement requiring a purchaser of goods, as a condition of such purchase, to purchase some other goods. Case : a gas distributor required a consumer to buy a gas stove as a pre condition to obtain connection of domestic cooking gas. [Chanakaya and Siddharth Gas company, In-re RTP 11/1985 decided by (MRTP Commission on 27.1.1985)]
  48. 48. What is exclusive distribution agreement ? Requiring a distributor not to sell the goods of the manufacturer beyond the prescribed territory case : Vadilal Enterprise Ltd.(1998 )
  49. 49. What is resale price maintenance ? An agreement to sell goods on condition that the prices to be charged on resale by the purchaser shall be the prices stipulated by the seller (lower price is not allowed) case : -India Cement Ltd. RTP Inquiry 48 /1985
  50. 50. What is “refusal to deal” any agreement, which restricts the persons to whom goods are sold or from whom goods are bought. Case: an agreement which provided that the franchisees will not deal in products or goods of similar nature for a period of three years from the date of agreement within a radius of five kms from showroom was an exclusive dealing agreement. DGIR v. Titan industries (2001)
  51. 51. What is exclusive supply / dealing agreement ? any agreement restricting dealing in any goods other than those of the seller Case : a manufacturer asked a dealer not to deal in similar products of its competitor directly or indirectly and discontinued the supply on the ground that dealer also dealt in product of suppliers’ competitor’s goods [Bhartia Curtec Hammer Ltd.(1997)]
  52. 52. Is predatory pricing allowed in India ? NO (Restricted under competition act 2002) “predatory price” : = sale of goods or services, at a price which is below the cost of production, with a view to reduce competition or eliminate the competitors.
  53. 53. What is the difference between MRTP Act & Competition act ? under the new law (competition act), the combinations are only regulated (restricted under MRTP act) & anti-competitive agreements and abuse of dominance are prohibited (as in MRTP Act). Under the MRTP Act prior to 27.9.91, undertakings of certain size were required to be registered and such undertakings were required to seek prior approval of the Central Government before expansion. In the new law, there is no requirement of registration & there is no need to have prior approval of the Central Government. CCI will only examine whether the combination has an adverse effect on competition.
  54. 54. What is CCI? Earlier this term denoted Controller of capital issues (which has now been abolished). Now this term means competition commission of India. Section 8 : CCI has a Chairperson and not less than two and not more than six other Members
  55. 55. If two MNCs have an agreement in London about their pricing strategy in India -where by they fix a price for India – will it come under competition act ? Yes, it may come The Competition Commission of India will have jurisdiction if agreement / combination entered into by them has an appreciable adverse effect on competition in India.
  56. 56. What are the restrictions on mergers of two large companies in same industry in India – if this results in huge market share for the new company? Competition Act 2002 prohibits any person or enterprise from entering into a combination which causes an adverse effect on competition in India
  57. 58. 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.
  58. 59. How many types of presumptions are possible ? 3 types : 1. presumption of law 2. presumption of facts 3. mixed presumptions
  59. 60. 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
  60. 61. What is Circumstantial evidence? These are indirect facts related to a case.
  61. 62. 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
  62. 63. 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).
  63. 64. 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
  64. 65. What is the difference between confession and admission? All confessions are admissions but not vice versa
  65. 66. Can self exculpatory become a confession? No
  66. 67. Can confession become an evidence against persons other than confessor? No (exception : as per sec. 30 – co-accused / jointly accused )
  67. 68. What is an admission ? Admission means conceding something against the person making the admission
  68. 69. 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
  69. 70. Can every fact be considered in evidence ? No no facts other than those having rational probative value should be admitted in evidence
  70. 71. 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.
  71. 72. 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)
  72. 73. 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
  73. 74. 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.
  74. 75. 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
  75. 76. 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.
  76. 77. 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.
  77. 78. 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)
  78. 79. 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
  79. 80. 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.
  80. 81. 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
  81. 82. 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.
  82. 83. Is an unsigned draft document an instrument? An unsigned draft document is not an “instrument”
  83. 84. 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)
  84. 85. What is the difference between complaint & plaint ? Not much A complaint in a criminal case is what a plaint is in a civil case
  85. 86. 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..
  86. 87. Can bail be granted for cognizable offence ? No cognizable offences are generally non-bailable Non cognizable offences are generally bailable
  87. 88. 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
  88. 89. 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.
  89. 90. What is Lis pendens? It is a a pending suit, action, petition etc.
  90. 91. 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.
  91. 92. What is a fraudulent transfer? Where a person transfers his property so that his creditors shall not have anything out of the property
  92. 93. 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.
  93. 94. 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
  94. 95. What is a Complaint &quot;Complaint&quot; means any allegation made orally or in writing to a Magistrate (c(d) of cr.p.c.)
  95. 96. Who is a pleader ? a person who practises in a Court (sec. 2(q))
  96. 97. Who is a public prosecutor? any person appointed under Section 24 of Cr. P.C. ( Section 2(u))
  97. 98. 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
  98. 99. 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
  99. 100. 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
  100. 101. 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.
  101. 102. 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.
  102. 103. 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 .
  103. 104. What is a cognizable offence? It is the case, where the police officer may conduct investigations without the order of a Magistrate.
  104. 105. 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
  105. 106. Can a private person arrest another person? Yes, if that person commits a non-bailable and cognizable offence
  106. 107. 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.
  107. 108. 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).
  108. 109. 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.
  109. 110. By what time can I get a document registered under registration act 1908? In four months from date of execution.
  110. 111. 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.
  111. 112. 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.
  112. 113. 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.
  113. 114. 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)
  114. 115. 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.
  115. 116. Who can present a will for registration? The testator, or after his death, any person claiming as executor (sec. 40)
  116. 117. 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) )
  117. 118. 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.
  118. 119. 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
  119. 120. 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).
  120. 122. 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
  121. 123. 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.
  122. 124. 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
  123. 125. What is a decree under civil procedure code? &quot;Decree&quot; 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.
  124. 126. 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)]
  125. 127. What is an order ? Section 2(14) : the formal expression of any decision of a Civil Court which is not a decree.
  126. 128. 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.
  127. 129. What is setoff under civil procedure code? Order 8, Rule 6 : It is a reciprocal acquittal of debts between the plaintiff and defendant.
  128. 130. 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
  129. 131. 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
  130. 132. 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
  131. 133. 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.
  132. 134. 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.
  133. 135. 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.
  134. 136. 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)
  135. 137. 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)
  136. 138. 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
  137. 139. 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.
  138. 140. 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
  139. 141. 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.
  140. 142. 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.
  141. 143. What are the types of tort ? Battery (a type of attack) attack / assault bodily harm Malicious prosecution Defamation false imprisonment Nervous shock
  142. 144. 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
  143. 145. What is defamation? spoken or written words that falsely and negatively reflect on a living person's reputation
  144. 146. 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.
  145. 147. 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.
  146. 148. 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
  147. 149. 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.
  148. 150. 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
  149. 152. What the ways of presenting evidence? There are 3 methods : 1. oral 2. personal 3. documentary
  150. 153. Example of documentary evidence? Suppose you present a document in the court
  151. 154. What is evidence ? When facts are brought before the court – it is called evidence
  152. 155. What is UNCITRAL? It is an international agency regarding arbitration for international buisness. United Nations Commission on International Trade Laws
  153. 156. 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
  154. 157. 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.
  155. 158. What is the law governing arbitration? The Arbitration and Conciliation Act, 1996
  156. 159. 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).
  157. 160. 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.)
  158. 161. 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.
  159. 162. WHAT IS CONTINUOUS RUNNING OF TIME? Time once started cannot stop
  160. 163. 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.
  161. 164. 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
  162. 165. 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.
  163. 166. 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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