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

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

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