The Curious Case of Law Schools vs. Bar Council of India

For the uninitiated, there are two modes of access to legal education, namely a 5-year Integrated Dual Degree programme which can be pursued after passing class 12^th and a 3-year full time LL.B degree programme which can be pursued after obtaining Bachelors’ Degree in any field. While there is an age bar of 21 years for the former and has in the recent years gained popularity amongst students, there is no age bar on the latter and is offered by limited Universities, making it less preferable for the students in comparison to the former.

University of Delhi is one of the few Universities in the country which offers 3-year full-time LL.B Degree. University’s Faculty of Law comprises of Campus Law Centre and Law Centre – I which function from the main campus area in New Delhi in the morning and afternoon respectively, and Law Centre – II, which is currently operating in evening from an off-campus college affiliated to University of Delhi. Recently Bar Council of India (BCI), making use of powers conferred to it by the Advocates’ Act, 1961, de-recognised Faculty of Law, University of Delhi, making it incapable of imparting legal education to its students. The grounds of de-recognition were, inter alia, the timings of Law Centre – II, which operated from 5.30 pm to 8.30 pm six days a week. BCI in its adverse report clearly stated that the University has flouted Rule 5, Schedule III of Rules of Legal Education, 2008, (General timing for conduction of courses in Academic Building), which reads as follows :

“Classes may be conducted between 8 a.m. to 7 p.m. in an Institution, which is not fully residential. However the Library may remain open till 10 p.m.”

In interest of students, the University, for the academic batch of year 2016-19 and onwards, has taken note of the same, and has changed the timings of Law Centre – II to 8.30 am to 1.30 pm and also made it function from the newly constructed building of Faculty of Law in the main campus. BCI, in view of above compliance, has provided one-time relaxation for the students for the academic batch of years 2014-17 and 2015-18, meaning thereby that these 2 batches with function from the old off-campus college building and the timings will remain 5.30 pm to 8.30 pm.

While the new arrangement apparently clears the deadlock between the University and BCI, it has created more problems than one for the stakeholders at Law Centre – II. The new batch functions in the morning in the main campus while 2^nd and 3^rd year students still function from off campus building in the evening, making it difficult for the teachers and official staff to manage two places. Even students are left with limited options of interaction and it is still to be seen how extra-curricular activities take place at two places at the same time.

Section 24 of The Advocates Act, 1961, inter alia, states that a person who has obtained a degree in law from any University in India or from any University outside the territory of India, recognised by Bar Council of India, is entitled to be admitted as an advocate, subject to fulfilment of other requirements as laid down in the section. Easily comprehended from the above, valid recognition of a University/College from BCI is the most important requisite for admission of a person as an advocate. However, many renowned Universities and Colleges are now being derecognised by BCI on one pretext or the other, leaving the future of thousands of students in the dark.

It is not only University of Delhi, but also Government Law College and other law schools in Mumbai, Kerala and Chennai which have come under the axe. The news of not just one, but several of them of such high repute getting de-recognised by BCI makes us doubt the autonomy of BCI, and more so because these law schools are functioning from much earlier than when BCI came into existence, and has produced so many eminent personalities which now contribute for the betterment of the nation.

There have been numerous petitions filed in the court of law which question the autonomy of BCI in this regard. Apart from Wali Nawaz Khan and Ors. v. Bar Council of India and Anr.  [W.P. (C) 7650/2016] in the High Court of Delhi, which challenges the constitutional validity of Rule 5, Schedule III of Rules of Legal Education, 2008, there are several other petitions filed before the High Courts of other states which challenge the validity of powers conferred to Bar Council of India with regard to inspection of law schools and other rules laid down by BCI. However, there is still a long time to go before new rules of land are laid in this regard. What was formed to uphold the standard of legal education in India has now become autonomous regulatory body which has been on the de-recognition spree without looking into the ground reality. At time where numerous seats in Judiciary and legal education sector are lying vacant, there is a need to boost the legal education and not demoralise students from pursuing law by putting them in constant fear that the University they are pursuing the law degree from is no more competent enough to impart them education.

It is to be noted that a degree in law is preferred not only by undergraduate students who want to make a career in litigation and judiciary, but also by people who want to complement their already chosen career path. Ignorance of law is no excuse in India, and a lot of engineers, medical practitioners and civil servants choose to study law after they have already graduated in their respective education fields simply to gain knowledge of the law, if not for anything else. Moreover, since there is no upper age bar for an advocate, there shouldn’t be an upper age bar to study law either. People should in fact be encouraged to study law to become aware about the politico-legal scenario prevalent in the country. A 3-year degree in law is essentially a post-graduate degree and while the idea of studying law through correspondence is not propagated, BCI should take note of the fact that like many other post-graduate degrees, people can manage their day jobs and education at the same time. In an era where night schools are opened and promoted to provide easy access to education to even those who are underprivileged, closing down of evening law colleges is against the very vision of India as a superpower.

SOURCES:

The Advocates’ Act, 1961;

Case Material on Jurisprudence – I: Legal Method, Indian Legal System and Basic Theory of Law, Faculty of Law, University of Delhi;

http://barandbench.com/pil-completely-change-bar-council-indias-powers-legal-education/

In a Courtroom: Who does What?

A place where Courts of Law are held are more commonly known as the Courtrooms. Provided hereunder are the people one can find in the Courts, and the work they do.

BENCH 

The panel of Judges in a Court is known as the Bench. The Judge in the Court might preside over the proceedings singly or there may be two or more Judges to look into the matters of the day in the particular Court. There are various types of Benches in the Indian Legal System:

a. Single Bench: As the name suggests, Single Bench comprises of a single Judge who sits to hear a matter in the Court.
b. Division Bench: When two judges jointly sit to preside over the proceedings of the Court, it is known as Division Bench.
c. Full Bench: Full Bench comprises of three or more Judges who jointly sit to decide the matters of the Court.
d. Constitution Bench: The Bench which comprises of five or seven Judges who preside over the matters in a court jointly, is known as Constitution Bench.

In the District-level Courts in India, a Judge sits in singly to preside over the matters.

The Judges in High Courts of respective States usually sit in Single or Division Benches to preside over the matters which comes to the Court, depending upon the importance of the cases. The Chief Justices of respective States, however, usually sit in Division Benches to hear the matters placed before them.

In the Hon’ble Supreme Court of India, the Judges sit in Division, Full and Constitution Benches. The Division Benches comprises of two or three Judges. The Vacation Judge in the Supreme Court, however sits singly to hear the matters.

When the Bench comprises of two or more Judges, the majority opinion counts and judgement of a larger Bench is binding on the smaller Benches of the Courts. An interesting trivia to note here is that the largest Bench constituted in the Hon’ble Supreme Court of India has been of thirteen judges in the case of Kesavananda Bharti v. State of Kerala and others [(1973) 4 SCC 225], the case which is more popularly known as “the case which saved the democracy of India”.

COUNSELS
The Counsels are the Advocates which represent the aggrieved, and Opposite Party in the Courtroom.

Counsel for the plaintiff/Complainant/Appellant: Plaintiff is a term used in Civil Courts for the aggrieved party who has filed a case. Complainant is the synonymous term used for aggrieved in the Criminal Courts. A person who files an appeal in the higher Court against a decision of the Lower Court is more often known as an Appellant.

Counsel for the Defendants/Accused/Respondent: In a Civil Court, a Defendant is the person against whom the case has been filed. The Accused is a synonym for Defendant in a Criminal Court. In an Appellant Court, the person who responds to the question of fact/law is then known as respondent.

Therefore, an Appellant can be either Plaintiff/Complainant or even Defendant/Accused, depending on who files the appeal.

In the District Courts, the Counsel for Plaintiff/Complainant stand towards the RIGHT side of the Bench and the Counsel for Defendant/Accused stand towards the LEFT of the Bench.

In High Courts, however, the Counsel for Plaintiff/Complainant in case of Original Jurisdiction of the Court and Counsel for Appellants/Petitioners in Appellant Jurisdiction of the Court stand towards the LEFT of the Bench and similarly, the Counsel for Defendant/Accused in case of Original Jurisdiction of the Court and Counsel for Appellants/Petitioners in Appellant Jurisdiction of the Court stand towards the RIGHT of the Bench.

There are no restrictions in the Hon’ble Supreme Court of India in this regard. The Counsels of the respective parties can stand anywhere in the Courtroom according to their own convenience.

In Criminal Courts throughout India, it is compulsory for the Complainants/Accused to be present in person in the Court during the proceedings. If the Complainant in person is not present in the Court, the Bench has the power of ordering dismissal of the case. If Accused in person is not present in the Court during the proceeding, the Court may order Bailablle/Non-Bailable warrants against him.

In Civil Courts however, the requirement of Plaintiffs/Defendants to be present before the Court in person is dispensed with. The Counsel of Parties can act in the Court on behalf of them.

COURT STAFF
Apart from the Bench and Counsels in a Courtroom, there is also Court Staff which assist in smooth functioning of the Courts.

a. Reader/Court Master: A Reader in a District Court and a Court Master in the High Courts and Supreme Courts of India, is an officer of the Court who occupies the seat just below the Judges’ Dias and assists in the conduct of Court proceedings.
b. Stenographer: A court reporter or court stenographer also called stenotype operator, is a person who transcribes spoken speech by the Bench into written form, to produce official transcripts of court hearings.
c. Ahlmad: Ahlmad or the File-keeper in common parlance is the person responsible for safe-keeping of files of different cases brought before the Hon’ble Court. An Ahlmad Room is a place where all the files of a particular Court are placed collectively.

NAIB COURT
Apart from the Bench, Counsel and the Court staff in a Courtroom, there also exist a few policemen, also called the Naib Court, to keep a record of the detainees and accused brought before the Court. This is to ensure that any order made by the Bench against the accused/detainees are immediately complied with. 

It is interesting to note that Naib Courts are specialities only of the Criminal Courts. Civil Courts cannot order an arrest of a person and therefore, there is no requirement of a Naib Court is those Courts.

Question: What happens if the Bench is on leave?

When the Judge is on a leave, as it happens often, the matters are adjourned for another day in a Civil Court. 

In case of Criminal Courts, and more specifically at District-level, Link Magistrates preside over the Court proceedings. Link Magistrates are the Judges placed at the same designation as the Magistrate in front of whom the case was originally placed. Criminal cases often involve rights as to life and liberty (art. 21 of Constitution of India) of an accused and therefore the Court does not stop functioning and the matters listed in the Court are automatically transferred to the Link Magistrates, who then decide the matters on behalf of the original Magistrate.

In High Courts and Supreme Court of India, the concept of linking of courts exist, but that is subject to application made by the parties on the basis of importance and the emergency of the case. The Courts can then operate at any time of the day to ensure justice is expediently imparted to the parties concerned. The case of Yakub Abdul Memon v. State of Maharashtra and Ors [W.P. (CRL.) No. 135 of 2015] is a classic example of Courts working even at midnight for ensuring justice to the parties.


SOURCES:

www.delhihighcourt.nic.in
www.indiankanoon.org

Checklist for Cross Border Merger: India & Hong Kong

TRANSFEREE COMPANY (Amalgamated Company): INDIAN HOLDING COMPANY;
TRANFEROR COMPANY (Amalgamating Company): SUBSIDIARY COMPANY SITUATED IN HONG KONG

PREPARATION OF SCHEME OF AMALGAMATION IN NATURE OF MERGER:

INFORMATION REQUIRED BY ADVOCATES:

a. Cross holding of Directors of Transferor and Transferee companies
b. Relationship between transferee and transferor companies
c. Names of authorised signatories
d. Names of newspapers where notice is being published
e. List of creditors and their dues
f. List of chairmen of meetings of transferee and transferor companies

INFORMATION/DOCUMENTS MAY BE REQUIRED BY THE REGIONAL DIRECTOR, MINISTRY OF CORPORATE AFFAIRS:

a. Balance sheets for last 5 years of the Transferor and Transferee companies
b. 2 copies of Valuation Report of Chartered Accountants
c. List of directors of transferor company and their other directorships
d. List of directors of transferee company and their other directorships
e. Rights/Bonus/Debentures Issues made by transferee and transferor companies in the last 5 years

s. 233 read with s. 234 of Companies Act, 2013 provides for fast track merger for small companies and merger between Holding Company and its Wholly Owned Subsidiary Company.

PROCEDURE FOR AMALGAMATION:

a. Scheme approved by BoD to be sent to RoC, Official Liquidator for their suggestions within 30 days of approval of scheme.
b. Scheme along with suggestion from RoC and Official Liquidator to be approved by:

• Shareholders holding 90% of the total number of shares at a general meeting
• Majority creditors (representing nine-tenth in value) in a meeting convened with 21 days’ notice.

c. Approval of RBI also required pursuant to section 234(1) of the Companies Act, 2013.
d. Each of the companies to file Declaration of Solvency with the RoC.
e. Copy of scheme to be filed with RoC, Official Liquidator and Central Government.
f. RoC and Official Liquidator to intimate the suggestions in the scheme to Central Government in writing within 30 days.
g. In absence of no such communication, the scheme shall be deemed to be approved by the RoC and the Official Liquidator and the Central Government shall register the same and issue a confirmation thereof.
h. Tribunal to record the merger pursuant to section 232 of the Companies Act, 2013 if the Central Government feels the merger is against the public interest and the same is intimated to the Tribunal.
i. Registration of the scheme would result in dissolution of Transferor Company without the process of wounding up.
j. Registration of scheme to result in:

• Transfer of property or liabilities of Transferor Company as property and liabilities of Transferee Company
• Charges on the property of Transferor Company to be applicable and enforceable as charges on the property of Transferee Company
• Legal proceedings pending before any court of law to be continued by or against the Transferee Company.
• Purchase of shares by dissenting shareholders and settlement of debt due to dissenting creditors, if the scheme so provides, such amount to the extent that it is unpaid becomes liability of the Transferee Company.

k. All shares held by Transferee Company in its subsidiary to be cancelled and extinguished on merger.
l. Transferee Company to file an application with RoC indicating revised authorised capital along with the requisite fees.

COMPLIANCE BY THE TRANSFEREE COMPANY (HOLDING COMPANY) PURSUANT TO COMPANIES ACT, 2013:

a. EXAMINATION OF OBJECT CLAUSE:

• With regard to power of amalgamation
• With regard to power to carry on the business of transferor company
• With regard to sufficiency of authorised share capital

b. PREPARATION OF SCHEME OF AMALGAMATION:

• Business Valuation
• Consideration paid: According to sub-section 2 of section 234 of the Companies Act, 2013, RBI may provide for the payment of consideration to the shareholders of the transferor company in cash or in Indian Depository Receipts (IDRs), or partly in cash and partly in IDRs.
• Calculation of Swap Ratios

c. BOARD MEETINGS:

• Notice of BM to be sent
• Approval of scheme of amalgamation
• Approval of Swap Ratio
• Directors/Officers to be empowered to make application to the Tribunal

d. APPLICATION TO THE TRIBUNAL:

• Application to be made in Form No. 33 of Companies (Court) Rules, 1959
• Affidavit in support of summons in Form No. 34 of Companies (Court) Rules, 1959
• Order of the Judge in summons convening meeting of the members to approve the scheme for approval in Form No. 35 of Companies (Court) Rules, 1959

e. FILING/ANNEXING:

• Certified copy of Order to be filed with ROC within 30 days
• Form 21- Notice of Court or any competent authority
• MGT 14- Special Resolutions passed
• GNL 1- File an application with RoC
• GNL 2- Submission of documents with RoC
• GNL 3- Particulars of authorised signatories for the purpose.

PROVISIONS FOR TRANSFEROR COMPANY:
a. Companies Ordinance, 2012 provides for an amalgamation of two or more wholly-owned companies within an existing group of companies without the need of court approval.
b. An amalgamation under the Companies Ordinance will not require the amalgamated company to pay any consideration for the acquisition of the business assets and liabilities of the amalgamating companies.

SOURCES:
Companies Act, 2013 (India);
The New Companies Ordinance, 2012 (Hong Kong);
Secretarial Audit and Due Diligence: ICSI

Criminal Procedure Summed Up

The Code of Criminal Procedure, 1973 (the Code), as the name suggests is the law relating to criminal procedure and is applicable to all criminal proceedings in India (except in the States of Jammu and Kashmir, Nagaland and Tribal Areas of Assam). The Code, which first came into being in 1898, was completely revamped in 1973 to simplify procedures and speed up trials as far as possible.

Provided hereunder is an attempt to summarize the vast Code and to provide an outline for procedural formalities in criminal offences.

HIERARCHY OF COURTS:

The Indian Judiciary is active at three distinct levels, a hierarchy of which, in descending order, is provided hereunder: 

1. Supreme Court of India
2. High Courts of concerned states
3. District Courts:

• Civil District Court (civil matters)/Court of Sessions (criminal matters) 
• Chief Metropolitan Courts 
• Court of Metropolitan Magistrate – I (the Magistrate) 
• Court of Metropolitan Magistrate - II 

SOME DEFINITONS:

1. Bailable Offence: According to Section 2(a) of the Code, an offence which is shown as “bailable” in the First Schedule of the Code or any other law in force is a bailable offence. In common parlance, bailable offence means an offence which is generally not of serious nature, in which bail is granted to the accused as a matter of right.

2. Non-Bailable Offence: Section 2(a) of the Code states that a non-bailable offence is any other offence. The Court or the Police Officer in that cases, can even refuse to grant bail to the accused. These offences are generally of a serious nature.

3. Cognizable Offence: According to Section 2(c) of the Code, an offence under which arrest of the accused can be made without a warrant.

4. Complaint: Section 2(d) of the Code defines a complaint as any allegation made orally or in writing to a MAGISTRATE with a view to his taking an action under this Code that some person has committed an offence and it does not include a Police Report or a First Information Report.

5. Inquiry: Section 2(g) of the Code defines inquiry as any inquiry conducted by a Magistrate or Court other than a trial.

6. Investigation: Section 2(h) the Code states that investigation includes all proceedings made for collection of evidence conducted by a Police Officer or any other person who is not a Magistrate.

7. Non-Cognizable Offence: Section 2(l) of the Code describes a non-cognizable offence as an offence in which a Police Officer has no authority to arrest without warrant.

8. Offence: Any act or omission thereof becomes an offence only when the State provides for it in any Act or Statute. There are two types of offences:

• Offences of personal nature: where the parties to a case remain two individual legal persons and it includes an artificial person. 
• Offences against the State: Offences which are of serious nature, which disturb the public order. The State takes over from the complainant/victim and represents the case on their behalf. 

9. Police Report: According to Section 2(r) of the Code, a report forwarded by a Police Officer to a Magistrate. In common parlance, it is also known as a Challan or a Chargesheet.

10. Public Prosecutor: A person who is the Counsel for the State. The Public Prosecutor can never represent a case on behalf of the accused.

11. Summons Case: Section 2(w) of the Code defines summons case as a case relating to an offence which is not a warrants case.

12. Warrants Case: Section 2(x) of the Code states that a warrants case is a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

THE PROCEDURE:

1. Filing of FIR/Complaint

• Initiation of any criminal case begins with filing of an FIR or a Complaint. Sections 154-156 of the Code provides for provisions for filing an FIR with a Police Officer. According to Lalita Kumari v. Govt. of U.P. [2013 (13) SCALE 559], a Police Officer cannot refuse to register a FIR in case the offence is cognizable. Moreover, no preliminary investigation is permitted in such a situation. However, the precedent also provided that in cases of offence against public servants or in relation to medical negligence, corruption, or matrimonial discord a preliminary investigation is must. 
• If a Police Officer refuses to register the FIR, the aggrieved can send such piece of information in writing to the Superintendent of the Police who shall investigate the case himself or order the Police Officer to register an FIR.
• The aggrieved person can also make a complaint to the Magistrate who shall take cognizance of the case by himself or order the Police Officer to investigate the said case.

2. Arrest and Bail

• The arrested person also has rights which are laid down in sections 157, 41A-41D, 46-47, 51-54A, 55A, 56-57 and 60A of the Code.
  
  Provisions of bail are contained in Sections 436-439 of the Code.
• In cases of bailable offence, bail is granted to the accused as a matter of right. Bail in such cases can be granted by both Police Officer and a Magistrate, depending on which stage the case is on. Bail is granted to the accused after he executes a bail bond with surety (guarantee). 
• In case of a non-bailable offence, bail is granted to the accused, either by the Police Officer or by the Magistrate, if he is arrested without a warrant but subject to certain conditions as provided in the Code. 
• If however the offence pertains to an offence against the State, against human body or against property as provided in the Indian Penal Code (IPC), or an offence punishable with imprisonment which may extend to seven years, only the Court has the power to release the accused on bail subject to the conditions prescribed in the Code. 
• Anticipatory Bail: Where a person has a reason to be believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply for bail in the High Court or Court of Sessions for a direction that on his arrest he shall be released on bail on conditions as imposed by the above mentioned Courts. 

3. Pre-Trial Proceedings

• A Magistrate can take cognizance of an offence either on the basis of complaint made to him, FIR or a Police Report or suo moto (upon his own knowledge). 
• Once the Magistrate takes cognizance of the offence, the complainant is examined on oath and substance of such examination is reduced to writing.
• Depending upon the nature of the case, the Magistrate issues a summon or a warrant to the accused, after payment of relevant process fees. The summon or a warrant is accompanied by a copy of the complaint so registered.
• Charge is framed on the accused for the offence committed by him, stating the particulars of the offence he is accused of committing. 

4. Trial: Aquittal or Conviction
A brief outline of a how a case proceeds in a trial is provided hereunder:

• Public Prosecutor/Complainant initiates the trial.
• The accused is produced by way of a summon or a warrant.
• Charge is framed by the Court for the offence committed by the accused.
• If, after production the accused pleads guilty, the Court can pass an order for conviction.
• If the accused does not plead guilty, a date is fixed for examination of witnesses and evidences of the Prosecution.
• The pleaders by due permission of the Court, cross-examines the witnesses. 
• The Counsel for accused then provide their witnesses and evidences.
• After the witnesses are examined, the prosecutor sums up his case by way of arguments to which accused or his pleader is entitled to reply.
• After the arguments, the Court gives a judgement of conviction or acquittal.
• The Code also provides for Summary Trials in Sections 260-265 of the Code, a topic that is vast enough to be covered in subsequent blogs. 

5. Other means of disposal of cases

• Compounding of Offences:
  Compounding of offences means disposing off the case between two parties without any prosecution. Section 320 of the Code calls for compounding of offences. It provides for offences that can be compounded without the permission of the Court, offences which can be compounded only by the permission of the Court and who can compound the said offences. It is to be noted that only those offences mentioned in the Code can be compounded.
• Plea Bargaining:
  Plea Bargaining is one of the means whereby the accused, on conviction can plead for a lesser punishment. The provisions of plea bargaining were added in the Code as a new Chapter XXIA and is applicable in respect of those offences for which punishment is upto a period of seven years. Moreover it does not apply to cases where the offence committed is a socio-economic offence or where the offence committed is committed against a woman or a child below 14 years. Also, once the Court passes an order in this case, no appeal lies to any Court against the order.

6. Inherent powers of High Courts:
Section 482 of the Code provides for inherent powers of the High Court meaning thereby that High Court of the concerned state can be directly approached. The inherent power of High Court may be exercised:

• To give effect to an order under the Court 
• To prevent abuse of the process of Court 
• To secure the ends of justice.

SOURCES:
The Code of Criminal Procedure, 1973
Case Material on Law of Crimes – II, Faculty of Law, University of Delhi

Legal Recourse in Cases of Medical Negligence

Not defined in any Indian Act or Statute per se, medical negligence, in common parlance, is negligence by act or omission by a health care provider in which the treatment provided to a patient falls below the accepted standard of practice in the medical community and causes injury or death to the patient.
Since medical profession is the noblest of all professions, a medical practitioner requires a certain degree of skills and knowledge, due to which the standard of care is generally high. They can only be held liable, when the standard of care is reasonably less than the standard of care that is generally exercised by a competent practitioner.

Provided hereunder is an analysis of medical negligence in India and the legal recourse, both civil and criminal in nature, which can be sought in such cases.

The essential elements in any kind of negligence are:

1. Legal duty of care towards the plaintiff;
2. Breach of that duty;
3. Consequential damage caused to the plaintiff.

Doctors are said to be in a fiduciary relationship with their patients and it is on the basis of this relationship that the doctors can also be accused of negligence, which has now come to be known as medical negligence.

MEDICAL NEGLIGENCE: AS A TORT AND AS AN OFFENCE

The landmark case of Jacob Mathew v. State of Punjab [(2005) 6 SCC 1], provides answers to the two most important issues concerning medical negligence:

1. Whether there is a distinction between civil and criminal laws of negligence?
2. Whether a different standard is applicable for recording a finding of negligence when a medical practitioner in particular is to be held guilty of negligence?

The Apex Court held that it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in Criminal Law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in Civil Law. The essential ingredient of mens rea (the guilty mind) cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence.

Therefore, it is only when a person fails to give any thought to the possibility of there being any such risk, and nevertheless goes on to do it would be considered gross negligence. In other words, it is a complete disregard for possible consequences.
It was also held that the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.

CIVIL RECOURSE:

Civil suits in case of medical negligence can be filed for damages in torts (civil wrong) in the Consumer Disputes Redressal Forums established under the Consumer Protection Act, 1986 (the Act).

Ques: Whether services rendered by a medical practitioner falls within the ambit of service as defined in section 2(1) (o) of the Act?

The Act defines service as following:
Service means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.

The Apex Court in Indian Medical Association v. V.P. Shantha [AIR 1996 SC 550], held that the service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of service as defined in section 2(1) (o) of the Act. Distinguishing between contract of personal service and contract for personal service, the Court held that in absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a contract of personal service and are contracts for personal service and therefore is not covered by exclusionary clause of the definition of service contained in the Act.

The procedure for approaching Consumer Dispute Redressal Forum is mentioned as under:

1. Complaints may be made to:
   District Forums in case of complaints where value of goods or services rendered along with the compensation, if any, claimed does not exceed Rs. 20 lakhs;
   State Commission where value of goods or services rendered along with the compensation, if any, claimed is more than Rs. 20 lakhs but does not exceed Rs. 1 crore, and;
   National Commission where value of goods or services rendered along with the compensation, if any, claimed exceeds Rs. 1 crore.
2. The complaint to these statutory bodies has to be made within 2 years from the date of cause of action.
3. According to section 15 (Appeal) of the Act, any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order. However, State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period.
4. As per provisions laid down in section 19 (Appeals) of the Act, any person aggrieved by an order made by the State Commission in exercise of its powers may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed. However, the National Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period.
5. Further appeal may be made to the Supreme Court within a period of 30 days from the date of order passed by the National Commission.

CRIMINAL RECOURSE:

Any act or omission thereof, becomes an offence only when the State considers it so. Because of the reasons abovementioned, the act done by medical practitioners in course of their duties, is to an extent protected by the Indian Penal Code, 1860 (IPC) under Chapter IV (General Exceptions) in its sections 80 (accident in doing a lawful act), 81 (act likely to cause harm but done without criminal intent), 88 (act not intended to cause death, done by consent in good faith for a person’s benefit), and 92 (acts done in good faith for benefit of a person without consent). The interpretation for above is that if established that the act or omission thereof is falls in the ambit of any of the above sections, then the same is not an offence under IPC.
This does not mean that medical practitioners can never be held criminally liable for any act of negligence committed by them. Grave medical negligence is not protected under IPC and the medical practitioner can be held liable for an offence if his/her act or omission thereof falls under sections 304A (death by negligence), 337 (causing hurt by act endangering life or personal safety of others) and 338 (causing grievous hurt by act endangering life or personal safety of others) of IPC.

The complaint mechanism in cases of criminal offence involves registering a First Information Report in a Police Station and then the Courts taking cognizance of the same. In Lalita Kumari v. Govt. of Uttar Pradesh [2013 (13) SCALE 559], it was held that under section 154 of the Code of Criminal Procedure, 1973, a Police Officer cannot refuse to register a First Information Report in cases concerning cognizable offence. The said judgement however provided exception, inter alia, in cases of medical negligence.

The judgement quoted Jacob Mathew Case and given below are the points for consideration while making a complaint/FIR accusing a medical practitioner of criminal negligence:

1. A professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.
2. No private complaint will be entertained against any medical practitioner for prosecution against offences of which criminal rashness or negligence is an ingredient, unless the complainant has produced prima facie evidence before the Court in the form of credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of accused doctor.
3. FIR can be refused to register till the time a preliminary enquiry is duly conducted and some credible evidence is found for such cases.
4. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.
5. The famous Bolam Test as laid down in Bolam v. Friern Hospital Management Committee, [(1957) 1 W.L.R. 582, 586] would be applied while deciding the culpability of a medical practitioner:
   “The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

SOURCES:

Case Material on Law of Crimes – II, Faculty of Law, University of Delhi;
Case Material on Law of Torts, Faculty of Law, University of Delhi;
The Consumer Protection Act, 1986;
The Indian Penal Code, 1860;
www.indiankanoon.org

Dishonour of cheques: Section 138, Negotiable Instruments Act, 1881

Finding its place in Chapter XVII of Negotiable Instruments Act, 1881 (the Act), Section 138 pertains to dishonour of cheques for insufficiency, etc. of funds in the account. Dishonour of cheques is said to be an offence of private nature (offence between two parties not involving the State) and according to the said section, a person is deemed to have committed an offence if he has drawn a cheque which has been dishonoured due to lack of funds in the bank account.

ESSENTIALS:

Like every offence, the act of dishonour of cheque also has some essential elements. Provided hereinafter are the essential elements of offence as described u/s 138 of the Act:

1. The cheque is drawn by a person on an account maintained him in person;
2. The cheque is drawn in discharge of a legally enforceable debt or liability;
3. The cheque is presented for payment within the limitation period (3 months from the date of cheque); and
4. The cheque is returned by the Bank for want of funds in the bank account.

OBJECTIVE:
The Supreme Court of India in Electronics Trade & Technology Development Corporation Ltd., Secunderabad v. Indian Technologists & Engineers (Electronics) (P) Ltd. [(1996) 2 SCC 739], held that the object of bringing Section 138 on statute appears to be to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. Despite civil remedy, Section 138 intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a book and induce the payee or holder in due course to act upon it. It draws presumption that one commits the offence if he issues the cheque dishonestly.

PROCEDURAL ASPECTS:
1. Once the abovementioned conditions with regards to section 138 of the Act are fulfilled, the payee or holder-in due-course, as the case may be, would demand the payment of the said amount within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.

2. When the drawer of the cheque fails to make payment of the said amount within 15 days of the said notice, such person shall be deemed to have committed an offence and shall, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both.

3. As laid down under section 142 (cognizance of offences) of the Act, no Court shall take cognizance of such offence except on a complaint, in writing, made by the payee or the holder in due course of the cheque, and the limitation period for making the complaint is one month of the date on which the cause of action arises. It is also provided in the said section that the offence is to be originally tried by no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate or a Judicial Magistrate of the First Class. 

With the growing number of cases in the said offence, it was realised by the Courts and Legislature alike that of the Act were found deficient in dealing with dishonour of cheques. Not only the punishment provided in the Act proved to be inadequate, the procedure prescribed for the Courts to deal with such matters was found to be cumbersome. The Courts were unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act. The Supreme Court of India, therefore in Indian Bank Association v. Union of India [2014 (5) SCC 590] laid down the guidelines to adopt necessary policy and legislative changes to deal with cases relating to dishonour of cheques so that the same are expeditiously disposed of in accordance with the intent of the Act.
The Act in view of the above was first amended in 1988 and then again in 2002 whereby sections 143-147 were added in the Act. The new provisions were incorporated with a view to encourage the culture of use of cheques and enhancing the credibility of the instrument. The said sections also intended to ease the procedural aspects and to ensure that genuine and honest bank customers are not harassed or put to inconvenience.

4. The offence, by virtue of section 143 (Power of Court to try cases summarily) of the Act, is now tried summarily and in accordance with sections 262-265 (summary trials) of the Criminal Procedure Code, 1973.
The interesting thing to be noted here is that although the Act provides for punishment of imprisonment up to 2 years or fine of amount double than that mentioned on the cheque, the Magistrate can only pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees in the case of any conviction in a summary trial under this section. But if the Magistrate or the parties feel that the offence should not be tried summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.

5. By virtue of section 145 (Evidence on Affidavit) and 146 (Banks’ slip prima facie evidence of certain facts) of the Act, the evidence for dishonour of cheque can be given on affidavit which can directly be cross-examined by the Counsel of the accused. The Court shall, on production of bank’s slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.

6. Section 147 of the Act is an overriding section and states that the offence of dishonour of cheque is compoundable offence, irrespective of anything mentioned in the Criminal Procedure Code, 1908.



SOURCES:
The Negotiable Instruments Act, 1881;
www.indiankanoon.org

Non-Judicial Grievance Mechanisms at National and International Levels

With legal recourse, anywhere in the world, normally being an expensive, complex and time-consuming means of seeking remedy, the need of the hour is to build a simpler route which caters to the alternate dispute resolution. A Non-Judicial Grievance Mechanism is a formal, non-legal complaint process that can be used by negatively affected individuals, workers, communities and/or civil society organisations.

Provided hereunder are some Non-Judicial Grievance Mechanisms at both national and international level:

NATIONAL:

Gram Panchayat/Nyayalayas
Regulated by the Gram Nyayalaya Act, 2008, Gram Nyayalayas or Gram Panchayats are self-governed bodies established at grass root levels for the purpose of providing access to justice to the citizens at their doorsteps and to ensure that opportunities for securing justice are not denied to any citizen by reasons of social, economic or other disabilities. At the discretion of the State on basis of area of population of a village, there can be one or more Nyayalaya for every village.

The Act states that the Gram Nyayalaya will be the court of Nyayadhikari (Judicial Magistrate of Class I) and he will be appointed by State Government in consultation with High Court.

The Nyayadhikari is required to hold mobile courts and conducts proceedings in villages. Jurisdiction of such Courts is both civil and criminal in nature, although Code of Civil Procedure and Evidence Act does not apply while deciding on the dispute. The disputes are rather resolved on the principles of natural justice. The Code of Criminal Procedure (without or without modifications), however, is applied for deciding criminal matters. The order passed by the Gram Nyayalaya is deemed to be a decree of the court and measures then are taken to execute the said decree summarily.

Appeals in criminal matters lie to the Court of Sessions within a period of 30 days from the date of judgement and appeals in civil cases lie to the District Court within 30 days from the date of judgement.

Lok Adalats/Niti Melas
This form of Alternate Dispute Settlement Mechanism evolved as a part of CILAS (Committee for implementing Legal Aid Schemes) with the objective of taking justice to the doorsteps of the poor and to give speedy and cheap justice to those who cannot afford to fight the costly legal battle.

Lok Adalats treat the issue as differences and not as cases and therefore try to resolve them rather than contest it. A dispute is resolved by discussion in an informal atmosphere in which parties and members of the Lok Adalat participate and a settlement is reached by mutual and free consent. The Lok Adalats are constitutionally valid bodies and every award passed by it is deemed to be a decree of a civil court. The said award is binding and no appeal lies under this award to any Court simply by the virtue of the fact that the award is reached by mutual and free consent of both the parties.

Lok Adalats are regulated by Legal Services Authorities Act, 1987. The Act states that these Adalats may be organised in areas as deemed fit by its authorities for any of the dispute which is not brought before any Court provided that the dispute is not related to any offence not compoundable under any law.

Lok Adalats are not governed by Code of Civil Procedure but by principles of justice, equity and good conscience.

Tribunals

Tribunals are self-governed bodies established outside the judicial hierarchy to decide certain types of disputes between citizens or between the government and the citizens. These are presently established at 2 levels:

1. District Level Tribunals (for e.g. Claims Tribunals under Motor Vehicles Act)

2. High Court Level Tribunals (for e.g. NCLT under Companies Act, 2013)

These are established to provide for speedy disposal of cases and to reduce pressure on the already clogged Civil Courts. Once a Tribunal is established, a Civil Court does not have any jurisdiction to entertain the cases falling within the jurisdiction of the said Tribunal. The establishment of Tribunals however does not exclude the jurisdiction of Supreme Court of India. Tribunals in certain cases can also impose penal sanctions and can try certain categories of criminal offences as provided in the Constitution of India.

Commissions
Commissions are constituted by the Government of India either on ad hoc or permanent basis, to guide, advice or provide solutions to various issues coming under the concerned ministry. Not a Non-Judicial Grievance Mechanism per se, but Commissions formed for various purposes take up complains and issues with Competent Authorities and ensure that the justice is done in an expeditious manner.

INTERNATIONAL:

Compliance Advisor/Ombudsman (CAOs)
Compliance Officer/Ombudsman is an independent recourse mechanism especially for projects supported by the International Finance Corporation and Multilateral Investment Guarantee Agency (MIGA)- the private sector lending arms of the World Bank Group. CAO was established in 1999 and reports directly to the President of the World Bank Group. CAO works to address the concerns of individuals or communities affected by IFC/MIGA projects, enhance the social and environmental outcomes of IFC/MIGA projects, and Foster greater public accountability of IFC and MIGA.

The Office of the CAO is based in Washington, DC.

The Assam Tea Case, which involved TATA Tea and which concerns matters of grave Human Rights violations is referred to CAOs for dispute settlement. The matter is under due process of settlement.

National Contact Points (NCPs)
NCPs are national structures established and financed by governments of the members of Organisation of Economic Co-operation and Development (OECD) and the states voluntarily associated to the framework programme. NCPs give personalised support on the spot and in applicants' own languages. The NCP systems can vary from one country to another from highly centralised to decentralised networks, and a number of very different actors, from ministries to universities, research centres and special agencies to private consulting companies. The network of National Contact Points (NCPs) is the main structure to provide guidance, practical information and assistance on all aspects of participation in various research programmes of European Commission.

SOURCES:
Case Material on Jurisprudence I: Legal Method, Indian Legal System and Basic Theory of Law, Faculty of Law, University of Delhi;
Teachings of Ms. Komala Ramachandra at Summer Course on Business and Human Rights, Indian Law Institute, New Delhi;
www.grievancemechanisms.org;
www.cao-ombusman.org;
www.ec.europa.eu;
www.ncw.nic.in

Right to Water: Onus on State and Business Houses

Water is the essence of life and its importance cannot be undermined in any way. However, it is a fact interesting to note that even after being such an important part of life, no State expressly recognises right to clean water as a fundamental right for its citizens.

Presented hereunder is an analysis of responsibility of States and business enterprises in ensuring clean water to its citizens.

RIGHT TO WATER AS A FUNDAMENTAL RIGHT:

While the 1^st generation Human Rights focusses on the civil and political rights of an individual, the 2nd generation Human Rights pertains to socio-economic rights of an individual which, inter alia, comprise of right to clean environment, right to education and right to adequate standard of living. Therefore, even if no State expressly recognises the right to water as a fundamental right, it remains a basic right of individual and cannot be disregarded. It becomes the duty of every State to ensure clean water for its citizens.

India recognises its right to water in Chapter III, article 21 of the Constitution of India, which is the main pillar providing support to the basic rights of individuals.

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The abovementioned Article has been interpreted in the wider sense and not only includes physical act of breathing, but also includes all other rights of an individual which makes his/her life worth living. Access to clean water is one of the essentials required for decent living of an individual and thus automatically falls under the ambit of ‘right to life’. This ‘right to life’ cannot be revoked under any circumstance and therefore it becomes all the more important for the State to see whether these rights are properly enforced or not.

The current Government of Delhi formed by Aam Aadmi Party (AAP) recognises the importance of this right and provides water for every individual and gives upto 20 KL per month of free water to its domestic consumers having functional water meter.

Even internationally, the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights have duly acknowledged in their declarations that the right to adequate standard of living necessarily includes access to clean water. The United Nations Organisation, in UN Water Conference, resolved back in 1977 that every individual, irrespective of his/her socio-economic status has the right to have access to safe drinking water for fulfilling their basic needs.

ENFORCEABILITY BY THE STATE:

Especially in the Indian perspective, it is not only a responsibility but also a duty of the State to ensure that the right to have access to clean water of every individual is not violated. The Directive Principle of State Policy as regards provision of clean water to its citizens is now brought under the realm of duties of the State. The Supreme Court of India has held in various cases that it is imperative on the State Governments to ensure proper water supply and storage for its citizens. The State List given under Schedule VII of the Constitution of India also provides for the states in India to provide water to its citizens.

Despite all the constitutional provisions, it is rather interesting to note that even though the right to have access to water is an important socio-economic right, many States, including India to an extent, have not been able to fully enforce this right simply because of lack of adequate resources.

ENFORCEABLITY BY THE BUSINESS HOUSES:

The Government of India has delegated some of its responsibilities to business houses under the Companies Act, 2013 (the Act). Although integration of business activities with Human Rights is a concept that has been around for many years, it is only recently that the issue has gained importance with onset of concept of Corporate Social Responsibility by the corporate houses. Schedule VII of the Act mandates the competent companies u/s 135 of the Act to invest certain proportion of its profits, inter alia, towards eradication of hunger, poverty and malnutrition, promotion of preventive health care and sanitation, and availability of safe drinking water.

Apart from this, another emerging trend in the business arena is the enforcement of human rights by body corporates and business enterprises. With privatisation of water becoming a common phenomenon in many countries, it is only justified that the business enterprises along with the States ensure that the right to have access to water is not only enforced, but also not violated.

In the case Perumatty Grama Panchayat v. State of Kerala [2004 (1) KLT 731], Hindustan Coca Cola Beverages Ltd. established a factory in Plachimada in Palakkad district in Kerala and derived large quantities of groundwater for its production purposes. The village Panchayat opposed drawing of ground water in the area and did not renew the license of the factory once it expired. The Kerala High Court, in this case held that the Panchayat was right to not renew the license and thereafter enforced the fundamental right of individuals in the area- the right to have access to clean water. The Court ordered the company to pay compensation for the difficulties faced by the inhabitants of the area due to alarmingly low levels of groundwater in the area.

The Supreme Court, in various other cases, has time and again reiterated the importance of fundamental rights and held that rights of people are and will be important than the financial losses the enterprise suffers.

CONCLUSION:

Even though the question whether business enterprises are liable to ensure socio-economic rights of the people still remains unanswered with too many loose ends, from the above study, it can be conveniently said that the business houses do not only have a moral, but to an extent, also a legal obligation to safeguard the such rights of the individual which essentially includes the right to have access to water. Even though there is a long way to go before business houses are held as liable as the Sate for enforcement of these rights, the integration of human rights with business has already begun and the day is not far away when it will become a reality. Businesses take so much from the society and it is justified that they give it back in some form or another.

SOURCES:

The Companies Act, 2013;

The Practical Lawyer [June 2016 Edition];

Teachings of Prof. Jernej Letnar Cernice, Summer Course on Business and Human Rights, Indian Law Institute, New Delhi;

The Curious Game of Right to Water [(2016) PL HR June 82];

www.delhi.gov.in;

www.business-humanrights.org;

www.mca.gov.in;

www.indiankanoon.com

Supreme Court on General Principles of Contract

Sir William Anson, a noted British jurist, defines a contract as a “legally binding agreement made between two or more persons, by which rights are acquired by one or more to acts or forbearance on the part of other or others”. In India, the contracts are governed by the Indian Contract Act, 1872, most of which has been derived from the British Common Law of Contract or from principles of equity, justice and good conscience accepted in all civilised societies. The first part (sections 1-75) of Indian Contract Act, 1872 (the Act), deals with general principles of contracts and is applicable to all the contracts so formed under the Act.
Despite the fact that the law has been in existence for over 140 years, time and again it comes before the courts for interpretation even on basic ingredients of validity of contract due to the fact, as laid down by M. Hidyatullah, J. in Bhagwandas Goverdhandas Kedia v. M/s Girdharilal Parshottamdas & Co. [AIR 1966 SC 543], that the law was made in time where modern means of formation, execution and discharge of contract were neither available nor anticipated.

Attempt has been made to address the following issues in light of recent Supreme Court judgements:

• Whether a written agreement can be considered valid even if not signed by the parties to agreement?
• How is a consideration different from condition for performance of contract?
• Whether a time-bound contract can be enforced after the expiration of the stipulated time?

To start with, an agreement becomes a valid contract when the conditions as mentioned under section 10 of the Act are duly fulfilled.

• Section 10 of the Act (What agreements are contracts): All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
  Nothing herein contained shall affect any law in force in India, and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents.

Interpretation: On the basis of above, the essentials of a valid contract include:
1. Valid offer and acceptance
2. Intention to create legal relations
3. Competence to contract
4. Lawful consideration
5. Free consent
6. Lawful object
7. Not expressly declared void
It is also to be noted that the Act is not exhaustive for the provisions of law pertaining to contracts. Other Acts such as Specific Relief Act, 1963, Registration Act, 1908, Transfer of Property Act, 1882 or any other Act which contains such provisions as regards a contract can also be relied upon unless the Act expressly repeals provisions of any Statute, Act or Regulation.

Question of law: Whether a written agreement can be considered valid even if not signed by the parties to agreement?

• Section 2(h) of the Act: An agreement enforceable by law is a contract.
• Section 2(e) of the Act: Every promise and every set of promises, forming the consideration for each other, is an agreement.
• Section 2(a) of the Act: When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise.

Interpretation: Based on the abovementioned sections, an agreement requires at least two persons: One who makes the proposal and other who accepts the proposal and both parties must be consensus ad idem (agreeing upon the same thing in the same sense).

Since the Act is silent on the type of documentation of the agreement, it may be oral, written or implied, depending upon the conduct of the parties, unless it is expressly so required by any other law, statute or regulation.

The above mentioned issue was recently adjudged by the Supreme Court of India which held that signature on an agreement is not a formal requirement according to any statute or law. The Supreme Court, in Govind Rubber Ltd. v. Louids Dreyfus Commodities Asia (P) Ltd. [(2015) 13 SCC 477], stated that there may not be any dispute with regard to the settled proposition of law that an agreement even if not signed by the parties can be spelt out from correspondence exchanged between the parties. However, it is the duty of the court to construe correspondence with a view to arrive at the conclusion whether there was any meeting of mind (consensus ad idem) between the parties which could create a binding contract between them. It is necessary for the Court to find out from the correspondence as to whether the parties were ad idem to the terms of contract.

Question of law: How is a consideration different from condition for performance of contract?

• Section 2(d) of the Act: When at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise.

Interpretation: The consideration therefore, must flow at the desire of the promisor, to promise or any other person. It can be a past, present or future consideration and should bear some value.

In the recently decided case of Commissioner of Central Excise v. Indorama Synthetics (I) Ltd. [2015 10 SCC 793], the Supreme Court of India laid down the difference between consideration and condition in a contract. The Court held that distinction between a consideration and condition would depend upon whether a reasonable man would or would not understand that the performance of the condition was requested as the price or exchange for the promise.

Question of law: Whether a time-bound contract can be enforced after the expiration of the stipulated time?

• Section 56 of the Act: Agreement to do impossible act: An agreement to do an act impossible in itself is void.
  Contract to do act afterwards becoming impossible or unlawful: A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.
  Compensation for loss through non-performance of act known to be impossible or unlawful: Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise.

In the recently decided case of State of MP v. M/S Ruchi Printers [2016 SCC Online SC 436], the court held that when time is an essence of the contract, the contract must be honoured within the stipulated time and no payment of any consideration of any kind is to be made in case of non-fulfilment of the contractual liabilities. In the present case, booklets were to be supplied to the State within a stipulated time which was further extended to 31st March, 2008. There was a specific condition in the contract that no booklet were to be received after the stipulated time. The apex court was of the opinion that the printers were very well aware that booklets were required urgently and time was the essence of contract and ample time was given to the printers to supply the booklets. Thus, the order for printing books stood cancelled on failure to supply within the stipulated period, because of which the contract came to an end and therefore no right of payment accrued from such contract.

On the basis of facts of the case, it was then held that the booklets which were printed after the stipulated time were without any work order in existence and no payment for such supply of booklets was necessary. However, payment for booklets which were supplied till the stipulated time ought to be made by the State.


SOURCES:

The Practical Lawyer [June, 2016 and February 2016 edition]
Case Material on Principles of Contract (General Principles), Faculty of Law, University of Delhi
Chartered Secretary [June 2016 edition]
www.scconline.com
www.sci.nic.in
www.indiankanoon.com

Corporate Affairs - An International Perspective

Rapid growth of multinationals and the era of cross border mergers has given rise to complex problems of implementation of international law. Purely national solutions to the problems of corporate control are of no avail. Therefore, the mechanisms and processes by which such international companies are governed becomes an area of vital importance for the nations they function in.

Given hereunder is an international perspective with regards to how the corporate affairs are governed, administered and regulated in the world’s significant economies.

NATION	GOVERNING ACT	ADMINISTRATIVE BODY	ADJUDICATING BODY
India	The Companies Act, 2013	Ministry of Corporate Affairs Registrar of Companies	NCLT
United Kingdom	The UK Companies Act, 2006	Secretary of State	Company Names Tribunal UK Courts of competent jurisdiction
United States of America	State Laws The Federal Constitution The Revised Model Business Corporation Act US Securities Act, 1934	Securities and Exchange Commission Federal Trade Commission	Federal Courts of USA
Australia	The Corporations Act, 2001	Australian Securities and Investments Commission	Federal Circuit Court of Australia Federal Courts of Australia

INDIA:

The Ministry of Corporate Affairs, Government of India is responsible for formulating strategies and policies related to the corporate affairs in the country. Governed by the Companies Act, 2013, the Registrar of Companies acts as the administrative body for the companies in India. Securities and Exchange Board of India (SEBI) acts as the regulatory body for the publically listed companies. The adjudicating authority for matters of corporate affairs lies with the newly constituted NCLT and NCLAT. The jurisdiction of all other civil courts will be dispensed with, once the NCLT becomes fully functional. The Supreme Court of India, subject to certain restrictions, still however remains the court of highest appeal in matters of corporate affairs.

It must also be noted that with the onset of The Insolvency and Bankruptcy Code, 2016, the power of adjudication in matters of bankruptcy and insolvency in companies, which earlier vested with the Debt Recovery Tribunal, will also be shifted over to the National Company Law Tribunal.

UNITED KINGDOM:

The Company Law in UK had undergone a major reform in UK under the Company Law Reforms. The Department of Trade and Industry was responsible for bringing out the new company law, which is now known as the UK Companies Act, 2006. While the Indian Legal System updated itself by constituting a Tribunal which specifically relates to corporate affairs, there is no separate adjudicating body specifically formed for such matters in UK. Usually, the powers of sanctioning the scheme of restructuring or of resolving an application for grievances of the stakeholders are vested with the courts of competent jurisdiction.

However, the Company Names Tribunal is a separate adjudicating body specifically constituted to provide a remedy for parties who are aggrieved by the registration of a company name in which they have a goodwill/reputation; specifically, that they suspect the name has been registered in order to extract money or to prevent the aggrieved party from registering the name.

UNITED STATES OF AMERICA:

There is no federal corporation statute as such in the US. Each state has its own corporate law regime and it provides for wide diversity of legislation and experimentation in the corporate form. However, the Federal Constitution ensures uniformity and harmony across the United States. Another harmonising factor is existence of model statutes which serve as uniform acts or drafting guides which may be customised by individual states. Revised Model Business Corporation Act largely serves as a guide for corporate laws for most of the states in US. Since the US has a long tradition of individual ownership of securities, the most significant of these federal laws applicable to corporations is the federal securities regime. Therefore many matters characterised as company law elsewhere have been characterised in the US as securities law and taken out of the ambit of state legislatures.

There is no special court formed for matters relating to corporate affairs. The Securities and Exchange Commission is the administrative body for corporate affairs in the US. The Federal Trade Commission can be approached when issues related to consumer protection and competition aspects come into question. The rest of the jurisdiction lies in Federal Courts of the US.

AUSTRALIA:

Heavily borrowed from the common law of UK, the Australian companies are governed by Corporations Act, 2001 and administered by a single national regulatory authority, the Australian Securities and Investments Commission.

The adjudicating bodies for corporate affairs include Federal Circuit Court of Australia which hears less complex disputes in matters under family law, administrative, bankruptcy, industrial relations, migration and trade practices law. The Federal Court of Australia hears matters on a range of different subjects including bankruptcy, corporations, industrial relations, native title, taxation and trade practices laws, and hears appeals from decisions (except family law decisions) of the Federal Magistrates Court.

SOURCES:

Advanced Company Law – ICSI;

The UK Companies Act, 2006;

www.nclt.in;

www.mca.gov.in;

www.gov.uk;

www.australia.gov.au;

www.ftc.gov;

www.uscourts.gov