Critical Analytical Note

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Legality of Hyperlinks

Legality of Hyperlinks

I, for one, while writing, picture the intended audience and the beneficiaries (wishful thinking). This article talks about the legality of hyperlinks, taking a leap from trademarks we jump to the next but a slightly tangled trajectory of Intellectual property Law. Copyrights are about ideas, they say ideas are bullet proof but with all my […]

Preliminary decree in partition suit and role of Commissioner

Preliminary decree in partition suit and role of Commissioner

In a partition suit, preliminary decree is passed. An execution petition is filed by the plaintiff before the court. Court allows for it and appoints a commissioner in furtherance of the same. However, objections are filed against the execution of the decree and for the recall of preliminary decree, by the defendant. Court allows for […]

Filing for trademark in India

Filing for trademark in India

In today’s materialistic world where intangible standards of quality such as the goodwill and the brand value of a certain product matter than the tangible quality of the product itself, when the common folk, the youth, dances to the tunes of wakhra swag shunning the idea of running after the brand tags but savagely contradicting […]

Material alterations to a Cheque

Material alterations to a Cheque

We received multiple requests to consider doing a post on material alterations to a Cheque than confining ourselves to just alterations in the signature. In this post we look at various issues that arise out of altering a Cheque…let’s get started! What constitutes material alteration of a Cheque once it has been signed? What changes […]

Cheque bounce Case (Altered presumption of acquittal by sessions court)

Cheque bounce Case (Altered presumption of acquittal by sessions court)

Now let’s alter the presumption. Presumption here is that Sessions court has acquitted the individual after he was convicted by the trial court. In case of acquittal by session court, section 378 of CrPC will come into play. Under sub-section 4, a private individual may by an application made to HC ask for grants special leave […]

Legality of Hyperlinks

hyperlink-10864164.jpg

I, for one, while writing, picture the intended audience and the beneficiaries (wishful thinking). This article talks about the legality of hyperlinks, taking a leap from trademarks we jump to the next but a slightly tangled trajectory of Intellectual property Law. Copyrights are about ideas, they say ideas are bullet proof but with all my complacent indignation I beg to differ. Copyrights are as fragile as the fringes on a newly embroidered suit, one won’t even realize while infringing them.

Above is delineated a very broad argument, to narrow it down let’s put things into perspective. In today’s highly advanced technological era every information is available on the net (for free, almost everything). To acquire such information we access the secondary sources on the web for our convenience.

Of late this shiny new concept of hyperlinking is gaining much fanfare being used widespreadly ad nauseam to make information transmission just a click away. While writing a blogpost the author, to give more credibility to its information, leaves a note saying further reading available here. The term “here” is a clickable link which leads you to a third party website and you can access those documents there.

Hyperlinks could be classified into three types for the purposes of this article:

Hyperlink: A clickable term landing the user to a different domain

Deep link: A deep link shifts the traffic from its origin website to a specific content of a third party website. Google flights land you directly to ticket booking page of the selected website. It’s not an infringement but the act of bypassing all the steps on the third party website and landing them directly to the payment page google has led to the loss of revenue which that said ticket booking website would have earned by the advertisements. The website cannot argue copyright infringement here as it would fall under the fair dealings exception under section 52(1) of the Copyrights Act. However, they can argue on the common law grounds that the deep link is causing them economic losses, they might not be able to prove a legal injury but avoiding litigation and the related costs is really desirable.

Hyperlinks to an infringing content: Hyperlinks per se do not constitute copyrights infringement but the particular hyperlink might lead to a page which is infringing some copyright. This would be considered as facilitation of copyright infringement and the author can be held liable for the same. Having delineated the issues let’s look at the precautions to not end up in bad waters while pursuing your hobbies.

It should be fair dealing of the said copyright material. Fair dealing in India is an exhaustive concept enshrined in the section 52 of the copyrights Act. Opposite to the Fair use concept in USA where everything is judged on the pivot of fair use or fairness Indian jurisprudence mostly remains open to wide interpretation concept, courtesy of the magnanimous American jurisprudence.

A best practice task undertaken by most of the cloud storage sharing websites give a notice to the effect that you are now leaving the website and entering a third party webpage. The idea is not to warn the user about the consequences of entering the said website at their own risk but to save themselves some trouble.

The absence of a notice might make the user believe he/she is performing the transactions on the same webpage which falls under unfair trade practices.

Furthermore, such belief won’t render the user an opportunity to read the terms and conditions of the third party webpage (I know :p, but just for the sake of it) and could lead to unfair loss to the user.

It is considered a precautionary practice among blog writers to acknowledge the authors and their credentials while hyperlinking them. It should give a notice to the user about the third party content. Failure to give such a notice might amount to unfair trade practices since the user would be under confusion as to which website they are using. This amounts to misleading conduct under unfair trade practices. Moreover if such a notice is not given the user won’t have the opportunity to view the terms and conditions of the homepage, this might result in a claim that you are authorizing copyright infringement.

It is fine to provide hyperlink to a link but the said link should not contain any infringing material itself.

It is considered a best practice to acknowledge the website owner. For ex: if the website is an online journal, you should write an acknowledgement stating that more info is available on the journal available on this website run by this organization.

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Preliminary decree in partition suit and role of Commissioner

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In a partition suit, preliminary decree is passed. An execution petition is filed by the plaintiff before the court. Court allows for it and appoints a commissioner in furtherance of the same. However, objections are filed against the execution of the decree and for the recall of preliminary decree, by the defendant. Court allows for objections and recall of initial decree. Thereafter commissioner files his report on the basis of first preliminary partition decree. Now court has asked defendants to file objections against the commissioner’s report. Under the given circumstances, what could be the most feasible objections so that the commissioner’s report in furtherance of the partition is not considered by the court?

Sr. No, Event series (Date) Event
1 Plaintiff files partition suit As a consequence of this suit a preliminary decree is passed.
2 Plaintiff files for execution of final decree in 1. Court passes execution decree and establishes a commission for execution.
3 Meanwhile as step 2 was complete, defendant files an objection against the preliminary partition decree passed in 1. Court accepts this objection and passes a decree to modify preliminary decree with respect to partition suit. (as mentioned in 1)
4 In the meantime, after decree in 3 has been passed, commissioner gives his report. Commissioner’s report is relying on the facts in preliminary decree i.e. 1, when they had been changed by a subsequent decree i.e.3.
5 Court asks for defense to file objections with respect to the report of the commission. We have to determine the objections to be filed in this case!

Commissions for assistance in execution of partition deed are established under Order XXVI, Rule 13 and 14 of CPC. Under rule 13, court is vested with the power to issue a commission; whereas rule 14 deals with the procedure to be followed by the commission.[1] In cases of partition suit commission is issued for the actual on ground partition of the properties.[2] Further, commission under these rules is appointed after the preliminary partition decree, and their report is implemented via final partition decree.[3]

Thus commission under order XXVI, Rule 13 and 14 of CPC is set up to analyze the feasibility of award granted in preliminary decree and recommend possible methods of division.[4] Given such circumstance, if the preliminary decree is modified due to objection or by any other reason, report of the commission stands void.

This was witnessed in multiple cases that popped up after the 2005 amendment of the Hindu Succession Act. There were cases in which preliminary decree had been passed and commissions set up. After the amendment was passed, multiple writs were filed for amendment of preliminary decree in such cases. Courts held that partition suit does not attain its finality till final decree and allowed for amendments to preliminary writs and rejected report of the commission.[5] A similar stream of legal reasoning has been applied by the Supreme Court in cases where one or more parties die after preliminary decree is passed.[6]

These judgments include:

  • Prema vs Nanje Gowda and Others [(2011) 6 SCC 462];
  • Gandvri Koteshwaramma and Another vs Chakiri Yanadi and Another [(2011) 9 SCC 788]

Another direct case in this regard will be Karnataka HC’s judgment in Devemma v. Shraddamma.[7] In these cases trial courts did not apply 2005 amendments to the Hindu succession act stating that:

“…The Court cannot alter the preliminary decree and shares allotted by the appellate Court. The principle laid down in the aforesaid judgments is not applicable to the facts of the case on hand. In the present proceedings already Court Commissioner is appointed and he has submitted a report in compliance to the decree. Aggrieved by the said order, the petitioners have preferred the present Writ Petitions….”

Karnataka HC rejected this reasoning and said that any changes could be brought in the preliminary decree before the suit attains finality via final decree. Subsequently modifications in preliminary decree were accepted and commission’s report was rejected.

Conclusion: Until final decree is not passed by the court, preliminary decree can be amended. Further, as the main purpose of commission under Order XXVI, Rule 13 and 14 is to find methods for implementation of preliminary decree, amendments to preliminary decree will render the report of such commission void. Hence, one cannot rely on report of commission set up to assess the feasibility of non-amended preliminary decree to assess the feasibility of on ground implementation once the preliminary decree has been amended.

____________________________________________________________________

[1] Section 54 and Order XX rule 18 CPC to be taken care of. It’s presumed that provisions under the two do not apply in this case. This section applies if revenue is to be collected from a property.

[2] Shub Karan Bubna @ Shub Karan … vs Sita Saran Bubna (Supreme Court of India; Reportable case).

[3] Supreme Court of India in Rachakonda Venkat Rao And Ors vs R. Satya Bai (D) By Lr. And Anr on 11 September, 2003 Appeal (civil) 2508 of 1997; Renu Devi v. Mahendra Singh and Ors., AIR 2003 SC 1608 .

[4] Kishore H. Desai vs Lilawati Virji Chheda And Ors., 1990 (1) BomCR 160.

[5] Ganduri Koteshwaramma & Anr. Versus Chakiri Yanadi & Anr., Available at http://judis.nic.in/supreme court/imgs1.aspx?filename=38736;  Phoolchand v. Gopal Lal; and S. Sai Reddy v. S. Narayana Reddy (Last two cases were with respect to Karnataka and  Andhra Pradesh state acts.

[6] Maddineni Koteswara Rao ..Appellant VERSUS Maddineni Bhaskara Rao & Anr., Available at http://www.harjindersingh.in/home/partition-suit—amendment-of-preliminary-degree

[7] LAWS(KAR)-2014-3-177, Available at http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=014102798000

Filing for trademark in India

trademarks-on-the-street.png

In today’s materialistic world where intangible standards of quality such as the goodwill and the brand value of a certain product matter than the tangible quality of the product itself, when the common folk, the youth, dances to the tunes of wakhra swag shunning the idea of running after the brand tags but savagely contradicting themselves by bragging about their Gant ki chaddi, Armani de noore, preserving one’s business identity becomes a task of top notch priority. It’s more important to preserve your goodwill then persevere to preserve your quality of products.

Let’s take a look at how the process is in a legal context. There are 5 trademark offices in India viz Ahemadabad, Chennai, Kolkata, Mumbai, New Delhi head quartered at Mumbai. The filing of a trademark is a Kafkaesque process entailing the initiation of process by filling an online form marshalling the relevant documents and choosing the appropriate class (see NICE Classification) your product falls in, a job better left for attorneys like us. A business house dealing in several commodities falling in different classes should choose to file the application separately under each relevant class. A major benefit accruing under this method is that rejection of one application won’t hamper the trajectory of other applications though an application for association of all the applications could be filed during the process to avoid any confusion. The only tangible benefit out of filing one single application for all the classes is that you save tiny winy amount on the attorney fee though that is not at all the reason we advise you against one application and opt for multiple applications instead.

After a successful filing the registry either approves the mark and publishes it in the trademark journal where a 4 month period is given to the concerned individuals to oppose the mark if it falls in conflict with their registered mark or objects to the mark on the grounds of any relative or absolute restriction under the trademark Act. The Registry while objecting the mark and the opposing party as the case may be should file a notice circumscribing the reasons for such opposition and a 2 months period is given to the applicant to file their reply to such notice defending their mark. After hearing all the arguments and counter argument the Registry reaches a decision which shall be binding on the parties subject to appeal to the appellate board.

This process can take years at times, to avoid hefty payments in form of attorney fee and litigation costs, below are certain pointers for choosing the business mark.

  1. The mark should not be descriptive of the product class, one cannot file a trademark for the name say whiskey, car, bike etc.
  2. More the arbitrariness, faster the approval. An arbitrary mark, something which you come up with, with no relation to the product itself has higher chances of getting through.
  3. No can monopolies adjectives. If you think you can file a trademark for the term imperial you are being too hard on yourself.
  4. Then how is Imperial blue a trademark??? A mark when compared to other for relative restrictions or when analysed for absolute restriction is taken as a whole. Imperial blue per se does not denote the character of the product so no absolute restriction and when compared as w hole, in its entirety to other mark say Rhizome’s Imperial gold is completely different, so no relative restriction either.
  5. The grounds for testing similarity are Conceptual similarity, Visual similarity and Phonetic similarity.
  6. As common sense dictates marks in contravention of public policy and order are subject to be refused under absolute restrictions and would be objected to by the registry.
  7. An application for a mark already registered but under a different class would be permitted unless the pre-registered mark has a huge reputation and goodwill in market. For instance, no can register trademark for underwear production in the name of Mercedes, it’s supposed to have universal reputation and such an act would be considered passing off if not infringement.

Material alterations to a Cheque

maxresdefault.jpgWe received multiple requests to consider doing a post on material alterations to a Cheque than confining ourselves to just alterations in the signature. In this post we look at various issues that arise out of altering a Cheque…let’s get started!

What constitutes material alteration of a Cheque once it has been signed? What changes on a Cheque are allowed once it has been signed and what are not?

The term ‘material alteration’ is not defined either in the Indian Contract Act, 1872 or in the Negotiable Instruments Act, 1881 or for that matter in any other statute. Hence, we have to look at other legal authorities, perhaps judicial rulings.

2 key authorities with respect to the same are:

  1. Nathu Lal v. Gomti Kuar[1]– In this case Privy Council used a paragraph from the Halsbury’s Laws of England to explain material alteration. It said:

“A material alteration is one which varies the rights, liabilities, or legal position of the parties ascertained by the deed in its original state or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision which was originally unascertained and as such void, or may otherwise prejudice the party bound by the deed as originally executed,”

  1. SC of India in Loonkaran Sethia v. Ivan E. John[2]deliberated upon the issue of material alteration and reached the following conclusion.
  • A material alteration varies the apparent nature of relationship of the parties as it alters rights, liabilities or legal position vis-à-vis what was originally stated in the document.
  • It may also otherwise change the legal character and effect of the document.
  • It may also affect the legal remedies available to the parties.
  • Impact of changes could be that the document becomes void.
  • Consequence of material alteration could be that it may prejudice the party vis-à-vis his interests as determined originally.
  • Material alteration may also remove the unambiguity of the original document and may make it, through alteration, more certain.

Further, specific judgments of courts have considered following to mean material alterations:

  • Amaravathi Chits Investments By … vs T.M. Vaidayanathan[3]: Madras HC Cheque held that changing date after Cheque has been issued, such that law w.r.t. period of limitation does not apply, is a material alteration.[4]
  • Section 87 no NIA read with sections 20, 49, 86 and 125 help us determine exact meaning of material alteration.[5]
  • There is no provision in theNI Act which either defines the difference in the handwriting or the ink pertaining to the material particulars filled up in comparison with the signature thereon as constituting a ‘material alteration’[6]
  • In Lillykutty vs Lawrance Kerela[7] HC held that: “We are of the view, by putting the amount and the name there is no material alteration on the cheque underSection 87 of the Negotiable Instruments Act. In fact there is no alteration but only adding the amount and the date. There is no rule in banking business that payee’s name as well as the amount should be written by drawer himself.”
  • When a cheque is issued for consideration and there is no dispute regarding signature, amount and name, it cannot be said that by putting a date on the cheque by the payee who is the holder of the cheque in due course would amount to material alteration.[8]
  • In Kaithavana v. Subramanian Potti[9] Kerala High court was of the opinion that “Filling up of the blank cheque by the payee is different from committing a material alteration. No material alteration except the fact that the blank cheque which was handed over by the accused to the complainant was filled up by him is alleged to invoke the provisions ofSection 87.”
  • AP HC in Allampati Subba Reddy v. Neelapareddi[10] court was of the opinion that the there was no consent of the defendant to the alteration of the date and therefore in terms of Section 87 of the NI Act it was a material alteration.
  • AP HC in Laxminivas Agarwal vs Andhra Semi Conductors Pvt. Ltd.[11] held that “When a cheque is issued for valid consideration, with no dispute regarding signature, amount and name, it cannot be said that putting a date on the cheque by the payee who is the holder of the cheque in due courses would amount to material alteration rendering the instrument void. In fact, there is no material alteration. When a cheque is admittedly issued with blank date, and when the payee has no objection with regard to the name, amount and signature, it can be presumed that there is an implied consent for putting the date as and when required by the beneficiary, and get it encashed. In other words, when the date is put by the payee, or the drawer on the cheque the presumptions underSection 118 of the Act would arise.”

Conclusion:

Material alteration would include any such alteration made to the Cheque without the consent of the drawer of the Cheque. Further, such alteration ought to bring about some change in the nature of the Cheque and such changes in turn should change legal standing of the Cheque. Thus, changing or altering amount, date, name of payee or Ac payee, without the consent of the drawer, will mean material alteration of the Cheque.

Blank Cheques present an entirely different challenge. As per observations made by different courts, blank Cheque given to an individual, when altered by the holder of such Cheque will not amount to material alteration. This is because drawer issued Cheque to the holder with the intention of holding them as security against him (drawer). This does not fulfill the requirements of material alteration as per the provisions of section 87. It is basically due to the fact that drawer had consented for such alteration by implication. However, under such cases drawer is protected from illegitimate and illegal used of Cheque by the holder.

____________________________________________________________________

[1] AIR 1940 PC 160

[2] AIR 1969 SC 73

[3] 2005 CriLJ 576; available at https://indiankanoon.org/doc/1518742/

[4] K.M. Basappa and Anr. v. Patel Marule Gowda and Anr. AIR (38) 1951 Mysore 102 Page 0668; Vakkalagadda Kondiah v. Channamsetty Pedda Pulliah and Ors.; Allampati Subba Reddy v. Neelapareddi; Jayantilal Goel v. Smt Zubeda Khanum; Bpdl Investments (Pvt.) Ltd. vs Maple Leaf Trading International (129 (2006) DLT 94) —– Also held that alteration of date is material alteration to the Cheque. (Section 87 of NIA was considered).

[5] While it is correct that in terms of the above provision, any material alteration to a cheque without the consent of the drawer unless it is made to carry out the common intention of the original parties thereto renders the cheque void, the expression “material alteration” has not been defined. Held in Ravi Chopra v. State and another.

[6] Ravi Chopra v. State and another.

[7] 2003 (3) KLT 721

[8] Bhaskaran Chandrasekharan v. Radhakrishnan (1998 (1) KLT 881).

[9] II (1996) CCR 106

[10] AIR 1966 AP 267

[11] 2006 CriLJ 2643

Cheque bounce Case (Altered presumption of acquittal by sessions court)

human-hand-writing-on-cheque-cfo_homepageimage_1668x1158px

Now let’s alter the presumption. Presumption here is that Sessions court has acquitted the individual after he was convicted by the trial court. In case of acquittal by session court, section 378 of CrPC will come into play. Under sub-section 4, a private individual may by an application made to HC ask for grants special leave to appeal from the order of acquittal, and if HC allows, the complainant may present such an appeal to the High Court. It is a well-accepted principle and has been observed in multiple cases.

Subhash Chand vs State(Delhi Administration):

In this case court made observation that the “…Whether a case is a case instituted on a complaint depends on the legal provisions relating to the offence involved therein. But once it is a case instituted on a complaint and an order of acquittal is passed, whether the offence be bailable or non-bailable, cognizable or noncognizable, the complainant can file an application under Section 378(4) for special leave to appeal against it in the High Court. Section 378(4) places no restriction on the complainant. So far as the State is concerned, as per Section 378(1)(b), it can in any case, that is even in a case instituted on a complaint, direct the Public Prosecutor to file an appeal to the High Court from an original or appellate order of acquittal passed by any court other than High Court….”

Other cases reiterating the same include (Though it was not the ratio of the case):

 M.Ramamurthy vs N.A.Ramakrishnan

 State Of M.P. vs Chandrabhan Heeralal Yadav

Where to go in cheque bounce after sessions court?

BFA-Cheque.jpg A case was instituted against accuse in the trial court u/s 138 of negotiable instruments act (hereinafter NIA). Trial court acquitted the accused. However he was convicted by the session court. What course of action lies ahead for the complainant?

Proceedings u/s 138 of NIA are quasi criminal in nature.[1] Under 138 both a criminal complaint can be filed for dishonoring of a Cheque and a civil suit for recovery. Here, we are only concerned with the criminal aspect of offence u/s 138 NIA.

Hence, essentially we have to consider difference between revision application and appeal to a HC when criminal cases have been decided in session court. (Only the differences material to determining the issue have been considered)

Revision

  1. It is only a privilege. An aggrieved party may move to the HC for exercising its power to revision. However, the power is discretionary in nature and it’s up to the HC to decide whether it will accept revision petition or not.[2]
  2. Allowing for revision is a discretionary power of the court.[3]
  3. Revision can lie only on the ground of jurisdiction, and the High Court in exercise of its revisional jurisdiction is not a court of appeal on a question of law or fact.[4]
  4. Superior court can suo moto take undertake revision.
  5. In case of a revision, whatever powers the revisional authority may or may not have; it does not have the power to review the evidence unless the statute expressly confers on it that power.[5]

Appeal

  1. It is a substantive right given by a statute. [6]
  2. Appeal only lies in a case if it is explicitly provided for by the statute.[7]
  3. In an appeal the court has the power to decide both questions of fact and law.[8]
  4. Procedure under appeal can only be undertaken after application for the same is made to the court.
  5. An appeal is continuation of the proceedings. In effect, the entire proceedings are before the appellate authority and it has power to review the evidence subject to the statutory limitations prescribed.[9]

Only one of the two is allowed:

The above mentioned distinctions have to be presumed for real and have to be applied. Hence, if legislature has created the two i.e. appeal and revision, and considering the fact that the two are distinct, only one of the two course of actions can be undertaken in a certain case.[10] Further, section 401 (4) of CrPC states that, “Where  under  this  Code an appeal lies  and  no  appeal  is  brought, no proceeding by way of revision shall be entertained at  the  instance of the party who could have appealed.” Hence, only either revision or appeal is allowed. Section 401 (5) of CrPC further supports this notion. Another point to be considered is that revision lies only in cases where appeal does not lie.

Conclusion:

In the current case maximum imprisonment under section 138 of NIA is 2 years. Hence, under section 374 (2) appeal to the HC will not be allowed. This is so because for the appeal to be allowed punishment given by session court has to be more than 7 years. Consequently, this becomes a case for revision under section 397. (Please check whether under which section revision may be asked for. Not sure whether section 397 is the one under which revision may be allowed)

Thus, the accused in this case can file an application for revision in the HC.

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[1] AIR 2007 (DOC) 264 (DEL.) – Delhi HC when it was dealing with whether outside the court settlement should be allowed in cases of Cheque bounce?

[2] State of Kerala v. K.M. Charia Abdullah & Co., (1965) 1 SCR 601, 604 : AIR 1965 SC 1585.

[3] S. 397, s. 398 and s. 401 of CrPC.

[4] Hari Shanker v. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698 : 1962 Supp (1) SCR 933.

[5] State of Kerala v. K.M. Charia Abdidla & Co., A.I.R. 1965 S.C. 1585; Lachhman Dass v. Santokh Singh, (1995) 4 SCC 201.

[6] State of Kerala v. K.M. Charia Abdullah & Co., (1965) 1 SCR 601, 604 : AIR 1965 SC 1585.

[7] S. 372 CrPC. In this case Appeal does not lie because of the provisions of s. 374 (2) CrPC\ as under this section an appeal cannot be made to the HC until punishment given by sessions court is not more than 7years.

[8] Hari Shanker v. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698 : 1962 Supp (1) SCR 933

[9] State of Kerala v. K.M. Charia Abdidla & Co., A.I.R. 1965 S.C. 1585; Lachhman Dass v. Santokh Singh, (1995) 4 SCC 201

[10] State of Kerala v. K.M. Charia Abdullah & Co., (1965) 1 SCR 601, 604 : AIR 1965 SC 1585

Breach of a Construction Contract

construction_0.jpgSome interesting incident happened at a construction site nearby. Turns out there was a contract between the owner of the property and a builder. Under the contract builder was supposed to carry out a construction on the property of the owner and owners were supposed to pay builder for the same. However there were some issues and construction had to be stopped. Here are arguments on behalf of owners of the land. Perhaps we hope you find them useful!

Basic issues can be summarized as follows:

  1. Architect has to supply detailed estimates and bills to show expenses incurred by her.
  2. Is the construction firm entitled to payment for something that is not mentioned under the contract? (w.r.t. construction of 1 ½ floors)
  3. Is the construction firm entitled to payment for something that is per se illegal? (w.r.t. construction of 1 ½ floors)
  4. Can the architect claim architectural fees when she was not even present at the work site?

 

Following arguments can be made with respect to the above issues:

  1. Architect has to supply detailed estimates and bills to show expenses incurred by her.

As per s. 101 and 102 of the Indian Evidence act, burden of proof is upon the individual seeking to assert a right or one who would fail if no evidence is given. Section 73 determines damages in case of breach. Clearly here architect is asserting her right to damage due to breach of contract. Further, her claim will fail if the same is not backed by any evidence. Hence, BoP in this case is on the architect.

Person claiming damage has to back it up with evidences.[1] Further, he has to also prove the quantum of damages. In this case non-payment of expenses is a simple allegation. It has to be backed by proof.

  1. No, construction firm is not entitled to payment for something that is per se illegal.

In this case there is violation of the contract. In Ranbir Singh v. Satya Narayan Sharma and Others,[2] Delhi HC was of the opinion that:

“..If we see the facts of the case. It is the plaintiff who carried out unauthorized construction and in terms of settlement he wants himself to be paid Rs.18,00,000/- towards the cost/part cost of construction and out of that agreement what defendants have got, nothing but a loss of Rs.18,00,000/- and their property is also sealed. In my opinion, plaintiff cannot be allowed to take advantage of his own wrong and rights of defendants cannot be prejudiced in this manner at all…”

This case has similar fact to the case in hand. Court concluded that it was the responsibility of the builder to take all permissions. If permission was not taken and construction carried on, it will be equivalent to misrepresentation. Subsequently contract will be void (u/s 18 rw s 19 of ICA).

Further, SC in Meghmala & Ors. Vs. G. Narasimha Reddy & Ors.[3] Suppression of any material fact/document amounts to a fraud or misrepresentation, as the case maybe. Here, it was a case of misrepresentation as property owners were made to believe that the construction will subsequently become legal. (However, they know that same will not be true)

As per SC’s ruling in Faqir Chand Gulati vs Uppal Agencies Pvt. Ltd. & Anr on 10 July, 2008[4] land owners under this contract will be treated as consumers. Hence, as per s. 1(4) of consumer protection act (hereinafter CoPrA)read with s. 2 (1) (r) (1) (viii) of CoPrA, architect is liable for damages if proceedings are taken to consumer forum. (Separate proceedings allowed)

  1. Architect cannot claim fees when she was not present at the work site.

One of the considerations under this contract was identity and qualification of the individual. Neither the individual architect in question nor any qualified people were present at the construction site. Hence, breach of contract.[5]

As per SC’s ruling in Faqir Chand Gulati vs Uppal Agencies Pvt. Ltd. & Anr on 10 July, 2008[6] land owners under this contract will be treated as consumers. Hence, as per s. 1(4) of consumer protection act (hereinafter CoPrA)read with s. 2 (1) (r) (1) (viii) of CoPrA, architect is liable for damages if proceedings are taken to consumer forum. (Separate proceedings allowed) Further, quality of services was deficient as per s. 2(1)(o) and 2(1)(d) of CoPrA.

Hence because of the above mentioned reasons, Builder in this case is not entitled to any monetary compensation.

__________________________________________________________________

[1] /S.Colgate Palmolive India Ltd vs T.J.George Available at https://indiankanoon.org/doc/1735717/; Also 1991 SCMR 1436; PLD 1973 SC 311; 1995 SCMR 1431.

[2] Available at http://www.delhidistrictcourts.nic.in/SEP14/Ranbir%20Singh%20Vs.%20Satya%20Narain %20Sharma.pdf

[3] Available at https://indiankanoon.org/doc/1329151/

[4] Available at https://indiankanoon.org/doc/1048731/

[5] No specific case in India with respect to the issue. (Or maybe I could not find one!) However, common law principles applicable in India when there is no express legal provision that says otherwise. Article 372(1) of the Indian constitution. Same was also said in the case of Haji Anwar Ahmed Khan Vs. The Punjab Wakf Board and Ors AIR1980P&H306. Hence, one could simply apply basic common law doctrines to this issue and state that identity and qualification of supervisors was important and if architect herself and qualified engineer were not present at the site, it will be in violation of the contract.

[6] Available at https://indiankanoon.org/doc/1048731/

The debate on Uniform Civil Code

1423398961Muslim-women.jpg

Indian media is full of debate about uniform civil code. This debate has in turn been triggered by the law commission’s consultation paper on implementation of uniform civil code in India. In this CAN I will be first addressing the whole idea of personal laws, how did it come into origin and will also explore the origins of Uniform civil code (hereinafter UCC) in India. Thereafter I will look at the current legal paradigm and will trace secular laws in the current system. Lastly, I will focus on major arguments that are being made against and in favour of implementation of UCC in India.

So to begin with, Indians have always been governed by complex laws which had their basis in community’s specific identity. Laws have not only been different for Hindus and Muslims, but there were many differences in laws governing various sub-groups within these communities. While upper casts practiced sati, this was not a common practice in various Dalit communities and some of the north Indian communities like Jats. Further, communal laws did not only govern personal relations, but also governed criminal acts, taxation etc. However when the British arrived in India they were advised on laws by Mullahs and Pundits. This was in turn so because these men appeared to acquire a position of authority in the Indian society. As a consequence they came to perceive entire Indian society from the perspective of this class of people. While they slowly modified other laws governing criminal acts, taxation, trade etc. they did not do the same with personal laws because they had no interactions with locals in that sphere. However the same was not true for other spheres such as criminal acts, taxation and trade. Hence British left personal laws as they were while modifying other laws.

In the initial decades of 20th century, Indian women’s rights movements and liberals in congress started making demands for improving condition of women under personal laws and implementing UCC. Post-independence, prime minister and a bunch of female MPs tried to push for inclusion of UCC in the constitution and also made an attempt to reform personal laws. Consequently UCC was added under article 44 of the constitution and Hindu marriage Act, 1956 was passed. As a consequence of this personal laws were divided into two sub branches. The first was the secular law and much similar to it, the Hindu personal law. These laws covered most of the population but Muslims. Muslims continued to be governed by their uncodified personal law based on sharia. This divide thereafter popped up as a major question of law in the Shah Bano case. The question of Muslim woman’s right to maintenance was under question. The Hon’ble Supreme Court of India ruled in favour of granting the right of maintenance to a Muslim woman after divorce. However, this was quickly reversed by the parliament by passing Muslim Women (Protection of Rights on Divorce) Act, 1986. This in turn was on account of backlash by Muslim community.

Now the issue of UCC has popped up again in the public domain. Things are certainly different from how they looked in 1986. There is a Hindu right government in the centre, women’s rights movements have become more powerful and there is a general consensus to address archaic medieval practices like triple talakh. On the other hand under current political environment Muslim community feel its identity to be threatened more than ever before. Under such circumstances debate is likely to be fierce. God forbid any communal violence.

Understanding transfer and cancellation of FIR

picture-firUlsoor road all women’s police station in Bangalore, with jurisdiction extending to the whole of city was recently closed down. Reason? Because a police station that was meant to protect women and make reporting crimes against them easier indulged in all forms of violation of individual rights. Starting from false FIRs to extraordinarily torturous detention methods during investigation to falsely framing individuals. It was closed down and special all women departments were introduced in all police stations of the city. Consequently FIRs were transferred to other police stations. However in many cases FIRs in Ulsoor road police station continued to be pursued in the form of investigation, hence resulting in having two FIRs being registered in the same case. We look at possibility of such an event in this post!

Whether FIR can be transferred from one police station to another? Once transferred, can the new police station register new FIR? Can the new and old FIRs coexist?

  1. The law laid down in Satvinder Kaur v. state[1] has been followed with approval by the Supreme Court in the matter of Naresh Kavarchand Khatri v. State of Gujrat and another[2] , by holding as under :-

“6. …….The Code of Criminal procedure has conferred power on the statutory authorities to direct transfer of an investigation from one Police Station to another in the event it is found that they do not have any jurisdiction in the matter…..”

  1. Also in Mahindra Kumar Narendra & Ors. v. State & Ors.[3]

In this case a new FIR was registered at a subsequent police station. Court allowed for registration of subsequent FIR at the new police station.

After considering the submissions made by learned counsel for the parties and in view of the judgement of the Apex Court in Satvinder Kaur Vs. State (supra), this Court is of the view that there is no embargo or restriction upon an Investigating Officer in the matter of forwarding an FIR to a Police Station if he comes to the conclusion that the crime was committed within territorial jurisdiction of that Police Station also.  It cannot be held that FIR can be transferred only when it is found that no cause of action had arisen within the area in which FIR was lodged.   In Satvinder Kaur’s case, the quashing of the FIR by the High Court was held improper but it was nowhere stated that when an offence has been committed partly in one area and partly in another area, the I.O. has no powers to forward the case to the Police Station of the area in which the offence appears to have been partly committed.   It is not necessary that Investigating Officer forwarding the case should find that no part of cause of action had taken place within his jurisdiction inasmuch as where an offence is partly committed at one place and partly at another place, the discretion must remain with the Police or complainant to choose the place of trial.  The accused should not have any say in the matter. The only embargo is that FIR cannot be transferred to an area in which no part of offence appears to have been committed.

  1. In Lalita Kumari v. Government of UP[4] it was held by SC that registration of FIR is mandatory in case of cognizable offences. Further, investigation can only be undertaken by police after registration of FIR. (Applies to every police station separately). Hence, in order for a new police station to start investigation, FIR hs to be registered.
  2. It is clear from the above case laws that “administration” (and not necessarily judiciary) can transfer FIR in cases where a police station does not have jurisdiction. Further, new police station has to register a separate (New) FIR in order to start with investigation. Perhaps, question arises whether what happens to the FIR registered in the initially?

What happens to the FIR registered initially?

  1. In Anju Chaudhary Vs. State of U.P. & ANR.[5] SC was of the opinion that more than one FIR (either via private complaint or registered by the police) are not permissible. For the purpose of efficiency, police may carry on with investigation in one of the case and cancel another FIR (perhaps the FIR in Police Station without jurisdiction).
  2. In Ram Lal Narang v. State (Delhi Administration)[6] court was of the opinion that “…occasions may arise when a second investigation started independently of the first may disclose a wide range of offences including those covered by the first investigation. Where the report of the second investigation is submitted to a Magistrate other than the Magistrate who has already taken cognizance of the first case, it is up to the prosecuting agency or the accused concerned to take necessary action by moving the appropriate superior court to have the two cases tried together. The Magistrates themselves may take action suo motu. In the present case, there is no problem since the earlier case has since been withdrawn by the prosecuting agency. It was submitted to us that the submission of a charge-sheet to the Delhi court and the withdrawal of the case in the Ambala court amounted to an abuse of the process of the court. We do not think that the prosecution acted with any oblique motive…”
  3. Hence, first FIR has to be cancelled. If it is not cancelled court has sufficient power (u/s. 482 CrPC) and safeguards within CrPC (for instance provision against double jeopardy) to quash one of the two FIRs.

 

Conclusion:

Hence, FIR can be transferred from one police station to another, particularly on grounds pertaining to jurisdiction. Subsequently, new police station will have to register a new FIR and FIR registered in initial police station will have to be cancelled.

 

[1] (1999) SCC 728.

[2] (2008) 8 SCC 300

[3] Delhi HC WP (Crl) No 77/2004; available at http://delhicourts.nic.in/nov/77.htm

[4] (2012) 4 SCC 1

[5] (2013) 6 SCC 386

[6] (1979) 2 SCC 322

Divorce without stepping in courtroom

There was a report in Times of India about how old parents of young Indians residing outside country have to undergo hardships and undertake a number of court visits seeking divorce for their children. This is primarily because getting divorce in India is far cheaper and particularly working half does not end up with a big hole in the pocket. But is getting divorce that easy? Can an Indian residing outside the country get divorce without even being present in India? Legally speaking can “general power of attorney” holder can institute divorce proceedings in India?

Primary problem with engaging any attorney arises because of the provisions of section 13 of Family Courts Act, 1984. The section makes it mandatory for the parties to personally appear and discourages engaging a lawyer. This also transcends and applies to a general power of attorney holder. However, there is enough law in terms of precedents to suggest otherwise.

However, there are court judgments to suggest that a General Power of Attorney (GPA) holder may not institute divorce proceedings in India. Only specific power of attorney holder, with particular instructions is allowed to undertake such a proceeding.[1] In the case of Harpreet Singh Sekhon vs Rajwant Kaur[2] FAO No.6208 of 2011 Court was of the opinion that the GPA should have specifically authorized father of the appellant, the GPA decree holder in this case, to initiate proceedings. They looked at the language of GPA document and suggested that the document did not say anything specific in furtherance of instituting power to institute suits to the father. Hence, father could not institute suit. The same was re-observed in subsequent divorce case i.e. Harpreet Singh Sekhon vs Rajwant Kaur  FAO NO.5742 of 2010 (O & M)[3] It was a similar case to the case at hand. Son lived in US and was represented by his father GPA holder. Proceedings were initiated by Harpreet singh via his father Dilraj Singh. Court said following:

“Learned counsel for the plaintiff-respondent has also raised an objection that Sh.Dilraj Singh Sekhon GPA for the appellant who claims to have a power of Attorney in his favour does not have a valid power of attorney to represent his son Harpreet Singh Sekhon who is the defendant. In the connected FAO No.6208 of 2011, there was a specific issue in this regard and in the order pronounced today, it has been held that the power of attorney on the basis of which Dilraj Singh Sekhon is litigating on behalf of his son does not give him the necessary power. Therefore indeed the power of attorney executed by Harpreet Singh Sekhon defendant in favour of Dilraj Singh Sekhon on 22.02.2006 does not confer on him any power to pursue litigation on his behalf.”

Hence, we may conclude that until power of attorney document does not expressly mention ability of the GPA holder to institute divorce proceedings, he/she may not do so.

Even if such proceedings are instituted, there is ample of case law to suggest that petitioner has to be present in person to give statements and GPA holder may not do so on his behalf. In Janaki Vasudeo Bhojwani Vs. IndusInd Bank Ltd. AIR 2005 SC 439[4] Supreme Court had held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become witness on behalf of party. He can only appear in his own capacity. Reasoning of this case was used as the basis in Mr. Vinay Jude Dias v. Ms. Renajeet Kaur.[5] Court was of the opinion that GPA is only limited to the stage of initiation of proceedings and could not be witnesses in cases in which only person giving GPA can be a witness.

Legal principles in above mentioned judgments may be used as a basis to ask court to not allow the proceedings without petitioner being present in person. (It is perhaps a delay tactic. This is because objective in many cases is to delay or quash proceedings so as to allow proceedings in another country to come to a conclusion. Thereafter general res judicata principles may be argued!)

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[1] Combined reading of Indian Contract Act, Stamps Act and Power of Attorney Act helps infer the two.

[2] https://indiankanoon.org/doc/56061969/

[3] https://indiankanoon.org/doc/172266062/

[4] The Supreme Court in Janki Vashdeo v. Indusind Bank [2005(2) KLT 265 (SC)] also has reiterated that a power of attorney can give evidence only in respect of acts done by him in the exercise of powers granted by the instrument, but he cannot depose for the principal in respect of the matter on which the principal alone can have personal knowledge. It was also held therein that the power of attorney …”cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.”

[5] http://delhicourts.nic.in/Sep08/Vinay%20Jude%20Dias%20Vs.%20Renajeet%20Kaur.pdf