Author Archives: fireflieslegal2022

WAIT, Avoid Handshake Agreement for Growth

WAIT, Avoid Handshake Agreement for Growth

Majority of the SME business entities do not give any attention nor are intended keenly in executing any written contract forget about executing legal documents and most of the business is just done on Trust basis or you can say by keeping it simple by minimising documents at least. Well, trust was earlier had a great role to play in doing business and infact was a great way to deal with but with change in time the nature of doing business have also changed and also the factor which runs the market. It is also a fact that it is not wrong to say that executing legal document does calls for complicated paperwork and most of the SME business entities avoids getting into this complication of legal process. But is this the way to do the business and there is no risk? Well, it is very certain to say that it is a huge risk in doing the business with no written contract and some of the risks which can be discussed are as under:
  • Conflict between two business parties regarding payment method, product specification, service SLA, etc and this basically becomes the majority of times in relationship breakdowns and thereby customers and thereby goodwill and reputation in the market and devalue of brand image;
  • A business done without invoice comes with major risk of non-payment
There is no doubt that business done on Trust and no written contracts are good and simple but in an increasing complex legal environment it’s not worth taking these kinds of risks.
 
An experienced and skilled lawyer will any time provide the business entities with the right kinds of documents and infact can be of huge assistance in taking his guidance to develop the business templates which can be used in business on regular basis. The contracts if used properly can help business entities to minimise risk and maximise profit and also help in anticipating the risk in any business deal. The aim of any good law firm is to allow the business entities to just get on with business, rather than wasting time sorting out messes?
 
Written Contract, But Why?
 
• Two Parties entering into an document containing Terms and conditions gives a certainty of what product or service will be dealt with, how the payment will be taken care off, how to raise the invoices, other modalities of executing the business, raising of dispute, if any and so on. It is important to understand that if there is a terms and conditions being agreed upon for any commercial or non-commercial dealings, it completely set-out the intention and infact satisfy the contractual mindset which is popularly called as consensus-ad-idem and then there is no uncertainty about what the Parties’ rights and obligations are and this only saves a lot of time and cost if there is any conflict arises and having dispute resolution terms agreed upon only resolves the areas of disagreement between Parties if at all it comes up in a very friendly and amicable manner. In brief, having terms and conditions bring CERTAINTY of what to be done and to avoid, timeframes and so forth
 
• Having a clear terms and conditions being agreed upon between the Parties, it only gives a document which makes the Parties bound by such document and this helps majority times of any customers to make a wrong claim against another bound party and in case there is any dispute, Parties can take the assistance of their legal attorneys and take the clarity of their stand against the dispute being aroused and this ensure that no wrong claims are succeeded.
 
• It is widely accepted notion that a Business person has only two work to do in its business, Marketing and Innovation and else be taken care by its made system and hence executing Terms and Conditions only ensure protection of business and once there is a certainly in place and system in place to ensure having certainty, the Business Parties can focus on the doing the work and getting paid on time.
 
• Certainty document only gives the clear reading of various rights and duties as mentioned and agreed and this helps and enable the non-default party to make successful claims or purchase of goods in the event of any breach of agreed business terms.
 
• Having clear terms and conditions helps either parties to comply with Legal Obligations in all aspects and this also takes care of any customer related claims or IPR infringement claims and so on

Know Lok Adalat and its Relevancy

Know Lok Adalat and its Relevancy

1] What is a Lok Adalat?
Lok Adalats are nothing but a part of ADR (Alternate Dispute Resolution) which is organized by the various legal aid authorities like the State Legal Aid Authority, The District Legal Aid Authority, The Supreme Court legal services committee, High Court legal aid committees, Taluk legal aid committee. The Lok Adalats aid the resolution of disputes through conciliatory methods.
 
2] What are the Disputes to be resolved by Lok Adalat?
All disputes except serious criminal offences
 
3] What is the process to refer the case to Lok Adalat?
A case can be referred to a Lok Adalat by: (a) Parties to the Litigation with the permission of the court and by making an application by the Parties with its consent and (b) by the Court, if it is satisfied that the dispute is one that can be resolved by a Lok Adalat
 
4] Is decision arrived in Lok Adalat is valid in court of law?
Yes, the settlement that is arrived in Lok Adalat is deemed to have the status of a Decree under Laws of India. No appeal can be filed in any court against an award that has been given by a Lok Adalat except WRIT.
 
5] What are the Powers given to Lok Adalat?
The following powers have been given to Lok Adalat:
• Summoning (a person being called by an authority such as the Court.)and examining a witness on oath
• The discovery (the act of compelling the opposite side in a case to reveal information.)and production (the creation of utility.) of any document
• Accepting evidence on affidavit (A written declaration on oath which is sworn before a person or body who has the authority to oversee the oath.)
• The requisitioning (the act of requiring something to be furnished.)of any public record or any document or copy of such record or document from any court or public office
• Any other matters that are prescribed rules

Stop, Why Power of Attorney is DANGEROUS if not given thoughtfully?

Stop, Why Power of Attorney is DANGEROUS if not given thoughtfully?

If you have watched shows like “Suits” or “How to get away with murder” or other similar shows, you must have come across the term “Power of Attorney”. A common man’s understanding of power of attorney is different from its legal sense. So, what is Power of Attorney?
 
The definition of power of attorney lies in the “The powers of Attorney Act, 1882”. According to section 1A of the act, “Powers-of-Attorney” include any instrument empowering a specified person to act for and in the name of the person executing it. This means, a legal document which gives a person the power or legal authority to act for another person as their representative for banking, legal, financial investment, business and other purposes. Even though there is a separate central act pertaining to powers of attorney, the basic principles of such documents are governed by the various sections of the Indian Contract Act, 1872.
 
What is the need of Power of Attorney?
Sometimes it becomes almost impossible for a person to look after all its legal and business affairs; That can be a result of old age, poor health, lack of expertise or any other reason. This is when power of attorney comes to picture. It allows you to authorise a person to carry out either a particular act or all acts connected with your trade, business, employment etc. It acts as a helping tool for a person who is incapable of performing those acts due to above mentioned reasons.
 
Why Power of Attorney is dangerous if not given thoughtfully?
Power of Attorney include any instrument empowering a specified person to act for in the name of the person executing it. The concept of Power of Attorney is based on the legal maxim “Qui facit per alium facit per se” which means, he who acts through another does the act himself. It is no doubt that Power of Attorney is an extremely dangerous document which has high risks. Despite it being so dangerous and risky, power of attorney acts as a helping tool for people who cannot execute an act by themselves. This could be because the person is not physically present to execute the act as he lives abroad or is unwell, or that the person lacks the expertise in the area of which the act is to be executed, or it could be many other reasons.
 
To understand the importance of the power of attorney, let’s just assume that you live in USA, and want to sell your apartment which is in Mumbai. Now, it is not possible for you to go to Mumbai yourself and thus appoint your friend to execute the sale of our apartment. Here, you are giving the power of attorney to your friend, to execute the sale of your apartment. Your friend has the authority to sell the apartment to suitable buyers according to his own judgment. So, it would be wise to say that the power of attorney is a document on convenience for people who are old, medically ill, live far away and so on.
 
There are various types of power of attorney such as the General Power of Attorney (GPoA), Special Power of Attorney (SPoA), Durable Power of Attorney, Non-durable Power of Attorney, Revocable Power of Attorney and Irrevocable Power of Attorney. A principal can use any of these types according to his need. A GPoA, also called unlimited power of attorney is where the principal gives wide-ranging powers to the attorney or the agent which authorises them to do all acts connected with a particular trade, business or employment. For example- Z is the manager of B’s firm. Z’s authority extends to the doing of everything necessary for carrying out the business of B’s firm. Similarly, a SPoA is where the principal gives only specific powers to the attorney or the agent which authorises them to do only a single act. For example- A is employed by X, residing in Mumbai to recover a debt due to X in Delhi. A may adopt any legal process necessary for the purpose of recovering debt. Once the debt is recovered, special power of attorney comes to an end.
 
Coming to durable and non-durable power of attorney, a principal gives a durable power of attorney to an agent when he wants the power of attorney deed to continue even after his death. If there is no need for the power of attorney deed to continue after the death of the principal, it’s called non-durable power of attorney. Durable power of attorney is ideal for the elderly who stand a chance to become forgetful or mentally incapable due to illness or old age. Thus, durable and non-durable power of attorney is dependent on the time duration of the power of attorney deed. Lastly, there is revocable and irrevocable PoA. Power of attorney is said to be Revocable if it is revocable at the will of the principal and Irrevocable If it is not revocable at the will of the principal.
 
A busy adult may give someone trustworthy the Power of Attorney to make medical, banking, investment, financial legal decisions. Lawyers always suggest their client to give the power of attorney to someone who is trustworthy and loyal to them. One must give the power of attorney very thoroughly. This is because, the power of attorney deed is one of the most dangerous deed which could turn to a license to steal if the agent starts to act in bad faith and for his own interests. An agent has the ability to do anything that the principal would have and thus can sell a property, buy a property, can handle the bank accounts, can buy stocks and can even sell stocks.
 
Imagine, you give the power of attorney to a relative making him your agent, to make financial decisions on your behalf. If the agent is not trustworthy or loyal, he can go to your bank, withdraw some money and invest it in such place where you’d never approve of investing. Or else, the agent can even transfer the title of a property from your name to his name. Or just imagine what an agent could do if he has the authority to access your bank accounts and take banking decisions! When an agent abuses the power of attorney, it becomes license to steal authorised by you. You can always approach the court for relief, but you must understand, that it could take you years to get relief.
 
Choosing a person to give power of attorney is one of the most risky and important decision for a power of attorney deed as there is no limitations under the law that will restrict you from appointing a specific person as your Attorney. This decision could either make the power of attorney deed a bit in your favour or could be a subject to abuse of Power of Authority. There have been numerous cases where the agent changed colours and started to act against the Principal’s wishes which resulted in heavy loss for the principal. Power of Attorney makes the Principal liable for Agent’s action in the due course of the purpose. Thus, an agent’s fraud committed in the course of the power of attorney is equivalent to fraud committed by his principal.
 
For matters related to transfer of title of immovable property, the Supreme Court of India ruled that “a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property.
 
It all comes down to one question- would you take the odds of giving the power of attorney to a person whom you trust? If yes, then would that person have General Power of Attorney (Unlimited PoA) for your business/trade/financial/legal/medical decisions? If yes, then would that person have the authority to be your agent even after your death? If no, then what should be the time period of your Power of Attorney deed? Answering these questions would give you a clearer idea on who to give power of attorney and what should be the essence of your power of attorney deed.

Understand Levying Of Housing Society Charges

Understand Levying Of Housing Society Charges

Housing societies collect the monthly maintenance from the member of the society to manage the various common expenses of the society like expenses of the security, cleaning of society, lift maintenance expenses, Electricity Expenses, water charges, small event expenses etc. The managing committee of Society has raised the monthly maintenance bill on the name of members and member of society oblige to pay the same maintenance charges. Apart from this monthly maintenance charges society also charged contribution to Repairs fund, sinking fund, parking charges, Non-occupancy charges and so on.
 
Collection of this above charges from the member of the society is quite difficult work for the managing committee of the society because many times what happen some people brought the flat only for the investment purpose and this type of flat remain vacate because Owner/Investor does not rent them out, so owner/investors are reluctant to pay the maintenance charges of such flats to the society. Other side the owner who are actually resides in their flat, many times they also fail to pay such maintenance charges of the society and member who has failed to pay dues for three consecutive months is considered a defaulter. The procedure of recovery of dues from the defaulter member should be follow as per the Maharashtra Co-operative Society Act, 1960.
 
Conflicts on apportion of share of maintenance Charges of the society on the basis of flat wise and Carpet area of flat.
 
There in lots of ambiguity, conflicts on levy of maintenance/Service charges and other society charges.
 
Let’s understand According to Model Bye Laws, the Apportion of the share of each towards the charges of the Society on the following basis
 
Type of Charges Vs Basis of apportion of share
  • Property taxes = As fixed by the Local Authority
  • Water Charges = On the basis of total number and size of inlets provided in each flat.
  • Expenses on repairs and maintenance of the building/buildings of the Society = At the rate fixed at the general body from time to time, subject to the minimum of 0.75 percent per annum, of the construction cost of each flat for meeting expenses of normal recurring repairs
  • Expenses on repairs and maintenance of the lift, including charges for running the lift = Equally by all the Members of the building in which lift is provided, irrespective of the fact whether they use the lift or not.
  • Sinking Fund = At the rate decided at the meeting of the general body, subject to the minimum of 0.25 per cent per annum of the construction cost of each flat incurred during the construction of the building of the Society and certified by the Architect, excluding the proportionate cost of the land.
  • Service Charges/Maintenance Charges = Equally divided by number of flats / units
  • Parking Charges = At the rate fixed by the General Body of the Society at its meeting
  • Interest on the delayed payment of Charges = At the rate fixed under the bye-law.
  • Non-occupancy charges = At the rate fixed under the bye-law.
  • Insurance Charges = The built up area of each flat / unit.
  • Lease Rent = The built up area of each flat / unit.
  • Non-Agricultural tax = The built up area of each flat / unit
  • Education & Training Fund = Rs. 10 per Flat/unit per month.
  • Election Fund = Equally by the Members and as prescribed by the Election Authority in the Rules.
  • Any other charges = As may be decided by the General Body Meeting of the Society
The Society monthly Service/Maintenance charges may include following charges
 
 Salaries of the office staff, lift-men, watchmen, Gardner and any other employees of the Society.
 Where the Society has independent Office, the property taxes, electricity charges, water charges etc. for the same.
 Printing, Stationery and Postage,
 Travelling Allowance and conveyance charges to the staff and the Members of the Committee of the Society.
 Sitting fees paid to the Members of the Committee of the Society,
 Subscription to the Education Fund of the Maharashtra Rajya Sahakari Sangh Ltd.
 Annual Subscription of the Housing Federation and any other co-operative institution to which the Society is affiliated.
 Entrance fees for affiliation to the Housing Federation and any other cooperative institution.
 Audit Fees for internal, Statutory and reaudit, if any.
 Expenses incurred at meetings of the general body, the Committee, the Sub-Committee, if any
 Retainer fees, legal charges, statutory enquiry fees.
 Common electricity charges.
 Any other charges approved by the General Body at its Meeting. However such charges should not contradict the provisions of the Act, Rules and Bye-laws of the Society.
 
Now we have seen the maintenance charges includes above expenses which is incurred on monthly or yearly basis. The question arise that on what basis (i.e. Flat carpet area wise or equal for all types of flat) have to charge to the member of society ??
 
You can see from the above expenses list, it is clear that the apportion of share of charges of this monthly expenditure cannot decide from the size of each flat as all these expenses are related to the cost of keeping the society premises clean or for the security of the society and other charges which are specifically related to whole society. These all expenses are not incurred for particular flat. So, logically, all these society maintenance expenses should be divided same among all member of the society.
 
There is the Bombay High Court judgment in response to a Writ Petition filed by Venus Co-op. Housing Society and another Versus Dr. J.Y. Detwani & others by Justice R.J. Kochar who delivered a 19 page judgment. In this case, the cooperative housing society had 284 flats of 2BHK and 39 flats of 4BHK. A resolution was passed that the monthly maintenance would be switched from flat-wise monthly charges to area-wise monthly charges. Due to this the 39 Flats of 4BHK flat owners had to pay more money per month towards the monthly charges. This gave rise to a controversy between the two groups of flat owners. The Bombay High Court passed the said judgment in this matter upholding the concept of equality and directed the concerned cooperative housing society to levy maintenance charges equally for all members.
 
In the year 2019, a Pune Co-Operative court has temporarily restrain the Karishma Cooperative housing Society in Kothrud from Collecting annual maintenance charges from its member on the basis of area or number of bedroom of flats till the final adjudicating of an ongoing dispute.
 
Even in the Model Bye-Laws of the Maharashtra Co-operative society Act, 1960 states that the Maintenance charges shall be equally divided by number of flats/units.
 
But still many societies’ managing committee charge the maintenance expenses on the basis of size of the flat instead of dividing equally among all flat.

Rights of Women (Hindu, Muslim, and Christian) on Property

Rights of Women (Hindu, Muslim, and Christian) on Property

In our Country many women are unaware about their rights regarding share of family property and even if they know their rights, they don’t know how to avail or enforce them. We have always seen that women are deprived of their rights, Property right is also a part of it. There are many reasons behind keeping women away from property rights, such as less awareness about law relating to property right, parents think that their daughter is going to get married and will go to her In-Laws home so she doesn’t need a property share, the son will going to take care of parents till their last breath so he has a right on the property, Strong patriarchal tradition and so on.
 
Women are not only deprived from their parents Property, but also from their In-Laws Property. If a woman’s husband died, the distribution of his property is decided by the elder member of the family and the same time woman cannot speak about her right of her husband’s property because she doesn’t know enough about her right and it may also happen that there is no one to guide her. But now the time has change and women are come forward to fight for their rights and Right of Property is also one of them. Women have just need to understand how they can avail their rights through legally and how much share will she get from the property of parents as well as from the husband Property and what are the steps required.
 
The following Act/laws are applicable for right on property:
 
  • The Hindu Succession Act, 1956/ 2005 – This Succession law applies on succession without a will i.e. intestate succession among Hindus which is also applicable to Sikhs, Jains and Buddhists.
  • The Indian Succession Act, 1925 – This Succession law is applicable on transfers of property of Hindus by a ‘Will’ i.e. a testamentary succession. Also included right of property of Christians.
  • Muslim Personal Law (Shariat) Application Act, 1937- Laws of succession governing Muslims for non-testamentary (Without Will) succession. Where a Muslim has died with a will, the issue is governed by the Indian Succession Act, 1925.
Hindu Succession Act, 1956
 
Prior to the year 2005, a Hindu Undivided Family (hereinafter called as HUF) was understood as a family with a common ancestor and all lineal male descendants* together with their wives and unmarried daughters. The 2005 Amendment to the Hindu Succession Act, 1956 however brought about a vital change to the concept of an HUF.
 
Prior to the Amendment of 2005, only lineal male descendants were regarded as coparceners (Coparcener means the children who have right on property on their birth) daughters merely attained the status of members (Member of family who doesn’t have right on property they merely treated as member of family) on birth and not coparceners. The Amendment of 2005 in Hindu succession Act has conferred equal rights upon daughters. Daughters, just as sons, become coparceners of their father’s HUFs on birth, with the result that they have equal rights as sons in the properties of the HUF.
 
*lineal male descendants – a male person who was born into or legally adopted into the direct line of individuals decent e.g. Children, grandchildren and great grandchildren
 
Now we will see how women will get property right at their stage of life like Mother Wife, Daughter, Sister and Widow under the Hindu Succession Act 1956 (Amendment Act 2005)
 
Mother:
Mother has right upon property of her predecease Son like other surviving member of the family who is come under the class I heir Categories (Class of Heir mentioned at the end of Article)
 
Sister :
Sister has right on property of her Brother only after there is no one legal heir in class I Heir Categories. Sisters are come under class II heir Categories at the time share of property of brother .
 
Daughter:
Before amendment in Hindu Succession Act 1956, the daughter only treated as member of the family that means she does not have right on property of her father whereas son has right to get share in the father’s property. The father’s property included self-acquire and ancestral property.
 
After Amendment in the Hindu Succession Act in the year 2005, the Daughters also entitled to get the same share as son in the property of the father. If the father died intestate (that means without making Will) the Class I Heir have first right of the property which included Widow, Daughter and Son.
 
Married daughter also have equal right on the father’s Property. Just because of her Marriage, no one can deprive her from right on property of fathers.
 
Condition to get share in property of father under Hindu Succession Act 1956After Amendment in the Act in the year 2005
 
 Father should have alive on date 9th September 2005 (the date of Act amended). If father had died before the 9 September 2005, then the daughter will not entitle get share in the fathers Property. The distribution of the property will be done according to the Hindu Succession Act 1596 (before amended) or as per last Will of the Father.
 Daughter born after or before the date of 9th September 2005 does not matter to get share in the property of the Father. If she died before the amendment in the Act i.e. before 9 September 2005, her children could claim the same.
 
Wife
 
Wife come under the Class I Heir hence, no one can deprive her to get share of her husband property and if she stays in Joint Family then the share from the property of Joint Family. Widow women get equal right of her predecease husband’s Property as share get by the Daughter and son.
If the woman got divorce from her husband then at the time of their divorce, woman got lumpsum amount i.e Alimony or Monthly Maintenance from her husband’s Property. After her divorce, husband died without making “Will” then the wife will not entitle to get share from her husband’s Property.
If the husbands remarry without taking divorce from the first wife then second wife will not have any right on the property of her husband. the second marriage of husband will be void and on this ground second wife will not be entitled to get share but the children of second wife will get share from her husband property as other legal heir of the property.
 
Muslim Women
 
If the husband died without making will, then the share in the property will be given to the wife according to the condition:
 If they have children then the wife will get one-eight(1/8) share in the property
 If they don’t have children then the wife will get one-fourth(1/4) share in the property and
 If there is more than one wife then the wife will get one-sixteen(1/16) share in the property
 
The Mother entitled to get share in property of children if the children are independent. The mother will get share ratio in the property as follows:
 If the son died leaving behind the children then the mother will get one- sixth share in the property of son.
 If the son died without having children then the mother will get one- sixth share in the property of son.
 
Christian Women
 
Christian Women right to get share in Property is governed under the Indian Succession Act 1925.
 
Share of Wife in the Property of Husband:
 
 If the husband died leaving behind children then the wife will get one-third share and remaining two-third share will be distributed among all children.
 If the husband died and they don’t have children then the wife will get half of the share in the property and half share will distributed among the relative.
 If husband died and not having children and any relatives then the whole property will goes to the wife.
 
We have seen the Right of Women on the Property also have seen how much ratio of share they can avail legally from the property.
 
But now question arise how to get physical right on property???
 
To get share in the property after the death of the parents, husband or owner of the property, you have to file Application for Hairship/Succession Certificate in the Court and for that you have to consult the Advocate.
 
Written by: Adv Lalit Jain and Adv. Kalyani Tapal

Understand Relevance of having Website Terms and Conditions

Understand Relevance of having Website Terms and Conditions

Simply put, the Terms and Conditions page sets the rules for using your website i.e., one must agree to in order to use websites, mobile applications, and other online platforms. Website Terms and Conditions is referred by various names such as Terms and Conditions, Terms of Use, and Terms of Service. You may not find direct connection with the mandatory provisions for Website Terms and Conditions but Terms and Conditions shall be present as this acts in your favour more than users or members or visitors. Further having Website Terms and conditions is a smart thing to include for various reasons. Also, in regard to any legal issues comes before the Court, the Court will look at your website terms to determine the contractual terms between you and the customer, you’ll want to take this page seriously enough for it to hold up in court. Website Terms and Conditions acts as a legally binding contract between you and your users/ members/ visitors. In India Information Technology Act makes is relevant to have Website Terms and Conditions and Privacy Policy.
 
Why exactly you need Website Terms and Conditions?
Law is everywhere and the best part is that having website means that you are open to all the public at large and your website is more of a invitation to offer or you can offer and assuming if someone acts based on what you have stated in your website and he or she suffers the damages of any kind, then you shall be ready to get sue in any part of the country as there being no Terms and Conditions is an indication of you not making the users/members/viewers about the restriction and what and not in the website. In brief, Terms of Use helps the users/members/viewers about the purpose of the website, your intention for this website, how this website works and for what, what is the restriction, what are the products being offered, etc. Please note that website Terms and Conditions acts as a legally binding contract between you and users/members/viewers. The more legal bases that you cover on your website, the safer your business is from being woefully wronged
 
Today hardly there is any business which have its presence not on online and if so, then there is also every reasons of your website being viewed by atleast one person in a month assuming your website is very badly active which means that you as one party has created the website offering your products and else and opposite party comes to your website and assuming if opposite party acts on it and then if there is any damage happens to opposite party, then there has to be a blame game and this is where the Terms of Use decides who is responsible and why not, if not and why so, if so. In offline business, no business shall be done without any written contract. You can refer my various articles on why written contract is important for business growth. Written Contract is possible if you have party’s offline and also online but it is not possible to get into written contract with each customer if you are online business persons. Take an example of Amazon online service. It has million and millions of customers and if Amazon start having written contract, then better they shut down the business and hence the Website Terms which in mobile app is called as Browse & Click Wrap Contracts comes into force. The Amazon Terms and Conditions take care of all the business transaction comes into picture. Assume a scenario where there is no refund policy or policy on damage products being given by Amazon, and if a product is damages and supplied to Amazon, then for sure there will be consumer case and million consumer millions case and million case means billion money being paid to lawyer to defend the case. This is nothing but better not doing any business. Having Website Terms and Conditions is a win-win situation. The more legal bases that you cover on your website, the safer your business is from being woefully wronged. From a user’s point of view, a thoughtful and well-planned Website Terms and Conditions page builds trust and confidence. It shows that you’re a serious business owner who handles responsibilities thoughtfully, and takes accountability for your content and online presence. Consider your Terms and Conditions agreement a legally binding contract between you and your users (those can be visitors to your website or registered accounts users) and include all the disclosures you need to keep your website or a mobile app away from abuses or misuse (including spam or other fraudulent activities. In other words, Terms and Conditions tells the user that you’re not responsible for anything bad that happens when using the site. However, you want to make sure you have an agreement in place between you and the visitors of your website to make sure you’re completely protected from any legal issues
 
What does your Website shall contain?
• About You and Your Business
 
• Your Business Details
 
• Goods and/or Services Offered
 
• Privacy Policy
 
• Intellectual Property Rights
 
• Terms and Conditions, brief details as under: 
  • User rights and responsibilities
  • Proper or expected usage of the website and potential misuse
  • Accountability for online actions, behavior, and conduct
  • Privacy policy outlining the use of personal data
  • Payment details such as membership or subscription fees
  • An opt-out policy describing a procedure for account termination
  • Disclaimer and Limitation of Liability clarifying the site’s legal liability for damages incurred by users
  • User notification upon modification of terms
  • Governing Law
  • Dispute Resolution
Does having Website Terms increase Business Growth?
Yes, for reasons as under:
  • Visitor visiting Your website are sure about how their personal information is going to be used and this increase faith and trust in your product and transactions
  • It shows the impression of you being transparent and thus builds trust with your customers and readers
  • This thereby increase the brand value of yours and thereby business. Please note that it is only due to Amazon written assurance of refund that customers all over the world choose Amazon and today they are on top against all competitors.
Why and how you need to update of any changes in Terms or else?
If updates are made to a business terms and usage you shall notify your users in advance of those changes so users are aware of what changes will be made and how the changes may affect them.
 
As already said, it is better to be safe and secure rather than looking for answer later as you never know what cases may be filed against you and by whom and hence you shall ensure all your legal things being done prior to your any business is set-up.

Legal Aid is a Right, Know and Spread its Awareness

Legal Aid is a Right, Know and Spread its Awareness

Indian constitution aims to provide legal aid to all citizens who are not in a position to pay for legal services and with a view to give access to the legal system and also the Supreme Court made its view very clear stating that the right to legal aid is part of the fundamental Right to life of all persons, Legal aid provisions have been included in the constitution. The Legal Aid is administered under the National Legal Services Authority Act, 1987.
 
1] What is Legal Aid?
Purpose of Legal Aid includes the provision of legal assistance in the legal proceeding before any Court or else as constituted under the Laws of India. Broadly Legal Aid would involve the following services:-
o Providing advocates at state expenses.
 
o Paying all applicable courts fees on behalf of persons eligible for legal aid
 
o Paying the expenses incurred in the preparation of documents
 
o Paying expenses for the summoning of witnesses and
 
o Paying all other expenses that are directly connected with litigation.
 
2] Is Legal Aid a fundamental Right ?
Yes, it is your right to claim Legal Aid subject to you coming under the definition of being availer of Legal Aid
 
3] Who are entitled to get Legal Aid?
• A member of a Scheduled Caste or Scheduled Tribe
 
• A victim of trafficking in human beings or forced labour as mentioned in Article 23 of the Constitution.
 
• A woman
 
• A child
 
• A mentally disabled person
 
• A victim of mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake, or industrial disaster
 
• An industrial workman
 
• An Inmate of a protective home, juvenile homes, a patient of a psychiatric hospitals or psychiatric nursing home
 
• A person with an income of less than Rs. 9000/- p.a or (higher amount prescribed by the State Government), if your case is pending before a court other than the Supreme Court.
 
• A person with annual income of less than Rs. 12,000 p.a or higher amount prescribed by the state government if the case is before the Supreme Court.
 
4] Do I have to prove my income to claim my right to Legal Aid?
Yes and for this you need to file an Affidavit and or submit documents proving of you falling for entitlement of Legal Aid
 
5] What is the procedure for accessing Legal Aid?
You need to make an application for legal aid to the concerned legal aid authority in the Appropriate Court in which your case is being fought ad hand over all necessary documents concerning his case to it. The authority after ascertaining your eligibility for legal aid will provide you with all the necessary legal assistance.

Quickly Let’s understand FSSAI, Its Licensing & Registration

Quickly Let's understand FSSAI, Its Licensing & Registration

1. What does mean FSSAI?
FSSAI Stands for FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA which is organisations that monitors and governs the food business in India.
 
2. FSSAI established under which Act?
FSSAI has been established under the Food safety and standards Act, 2006.
 
3. Why Registration/licensing under FSSAI necessary?
It is necessary to registration of FSSAI to avail the following benefit:
  • Ensure FOOD safety
  • Can get legal benefits
  • Build Goodwill
  • Create Consumer Awareness
  • Help to expand the business
4. What are the different categories of licenses?
  • Registration
  • Central licensing
  • State licensing
 
5. Which Food Business are eligible for FSSAI Registration, State Licenses and Central Licenses?
ALL FOOD BUSINESS OPERATOR IN THE COUNTRY REQUIRED FSSAI REGISTRATION/LICENSE.
You have to examine first under which categories of registration/licenses your business falls and accordingly you have to apply for registration/licenses.
 
Following is a list of Food Business Operator falling under different categories.
 
Following Food Business Operator required Registration for FSSAI
 
Petty Food Business Operators (FBO) who himself manufactures or sells any article of food Petty retailer, hawker, itinerant (प्रवासी) vendor or a temporary stall holder or small scale or cottage or such other industries relating to food business or tiny food business operator having annual turnover up to Rs. 12 Lacs and/or whose
i. production capacity of food products does not exceed 100 kg or litres per day, or
ii. procurement or handling and collection of milk is up to 500 litres of milk per day, or
iii. slaughtering capacity is 2 large animals or 10 small animals or 50 poultry birds per day or less
 
Provided that a producer of milk who is a registered member of a dairy Cooperative Society registered under Cooperative Societies Act and supplies or sells the entire milk to the Society shall be exempted from this provision for registration
 
Following Food Business Operator required Central Licensing for FSSAI
 Dairy units including milk chilling units equipped to handle or process more than 50,000 liters of liquid milk/day or 2500 MT of milk solid per annum.
 
 Vegetable oil processing units and units producing vegetable oil by the process of solvent extraction and refineries including oil expeller unit having installed capacity more than 2 MT per day.
 
 All slaughter houses equipped to slaughter more than 50 large animals or 150 or more small animals including sheep and goats or 1000 or more poultry birds per day.
 
 Meat processing units equipped to handle or process more than 500 kg of meat per day or 150 MT per annum.
 
 All food processing units other than mentioned under (I) to (IV) including relabellers and repackers having installed capacity more than 2 MT/day except grains, cereals and pulses milling units.
 
 100 % Export Oriented Units.
 
 All Importers importing food items including food ingredients and additives for commercial use.
 
 All food business operators manufacturing/ processing/ importing any proprietary food for which NOC has been given by FSSAI.
 
 Registered/ Head office of FBOs operating in two or more states.
 
 Food catering services in establishments and units under Central government Agencies like Railways, Air and airport, Seaport, Defence etc.
 
 Hotels with 5 star and above accreditation.
 
 All E-commerce food businesses
 
Following Food Business Operator required State Licensing for FSSAI
 All FBOs except mentioned in categories of business which required registration and Central License.
 All grains, cereals and pulses milling units irrespective of their production capacity.
 
6. What is the maximum period for which FSSAI License/Registration can be applied?
FSSAI license can be applied or renewed for 1 year up to maximum 5 years at a time
 
7. Do I need to mention all food products at the time of registration?
Yes. If you failed to mention all products, then the Licence will be treated as “Conducting business without licenses” and shall be prosecuted under relevant section of the FSS Act, 2006.
 
8. What Document required for the FSSAI licenses/Registration?
You will get the list of document according to kind of your food business and it is available on this link – https://foodlicensing.fssai.gov.in/ under supporting document list.
 
9. What is Fees Structure for registration /Licensing of FSSAI
Fees Structure for Registration and Central Licensing as follows:
 
Fees Structure for State Licence of FSSAI as follows: (For One Year)
 
10. What is improvement notice and who issue improvement notice?
The improvement notice is the notice issued by Designated Officer if FBO fails to comply with the regulations as mentioned in Section 32 of the FSS Act, 2006.
 
11. Is Designated Officer give opportunity to being heard before suspend the licenses/registration?
Yes. Designated Officer issued the show caused notice before suspend or cancellation of registration/license.
 
12. Once the FSSAI license suspended/ cancelled, can Food business operator make fresh application? If yes, when he can make a fresh application for FSSAI licenses?
YES. A food business operator can make fresh application after expiry of 3 months from the date of cancellation of earlier licenses to the concerned authority if all observations made in the improvement notice have been complied with.
 
13. Can I File Appeal Against the order issued by concerned authority regarding registration/licensing?
YES. You can File Appeal before the Commissioner of Food Safety and his decision will be fine.
 
14. Within how much period of time I can file an Appeal?
You have to file appeal within fifteen days from the date of date on which notice of the decision served.
 
15. Is it necessary to apply for renewal of licenses/registration before expiry of existence licenses?
YES.
if it is not applied before the expiry of license/registration. Once the license/registration is expired, the FBO has to apply afresh for a new licenses/ registration.
 
16. In how many days advance, renewal of licenses or registration can be filed ?
A License or registration renewal application can be made as early as 120 days in advance.
 
17. Is there any penalty if not file renewal application in advance ?
Yes . Renewal has to be filed not later than 30 days prior to expiry of License to avoid the late fee. A late fee of Rs. 100/- per day is calculated and added to renewal fee of License. i.e. if you are applying for renewal on last day of expiry, a late fee of Rs. 100 x 30 = Rs. 3000 will be added to the renewal fee of License
 
18. How to identify the category of FSSAI License/Registration by number?
FSSAI License number is of 14 digits and starts with ‘1’ while FSSAI Registration number is also of 14 digits and starts with ‘2’. 
Further, the first three digit pattern of FSSAI Central License out of 14 digit- License number is „100xxxxxxxxxxx‟.
 
19. What is a maximum time limit for the issue of FSSAI registration Certificate after applying?
The registration authority has to issue FSSAI registration within 7 days of the date of making application.
If Registration authority wants to conduct inspection of the premises, it must be done within 30 days of the date of application.
 
20. What is a maximum time limit for the issue of FSSAI LICENSING (Central/State) after applying?
The Licensing authority has to issue FSSAI licensing within 60 days of the date of making application (this period includes scrutinization of application and Inspection of premises)
 
21. If FSSAI registration certificate or licenses not issued within the time limit then what can I do?
You can submit the appeal before the commissioner of food safety.
  
22. Is FOOD license is transferable?
Yes. In the Event of death of the licenses holder, the licenses can be transfer in the name of legal representative or any family member of deceased.
 
23. Within how much period of time the transfer of licences application have to file before the concern authority?
(a) Period of 90 days from the date of death of the holder of a Registration certificate or license; or
(b) Such longer period as the Designated Officer may allow, for reasons to be recorded in writing.
 
24. It is necessary to file Annual return for food business activities? If yes what is a time limit for filing return?
Yes.
 You have to submit you annual return by 31st May of every preceding financial year. (Manufacturing including repacking and manufacturing of food products by third party manufacturer)
 Manufacturer of milk and milk product need to submit half yearly return within one month of completion of previous half year
 Merchant exporter can file annual report through online system.
 
25. What is a Penalty if Annual return for food not filed within given period of time ?
Will attract late fees of Rs. 100/- per day till submission of return
 
26. Do I need registration//Licenses for business Packaging of material for packaging of food?
No.
 
27. Can I file complaint against Food Business Operator (FBO) ? if yes , where I can file ?
YES. You can file complaint against the FBO. You can raise you grievance At FSSAI’s food safety connect portal https://foodlicensing.fssai.gov.in/cmsweb .
 
28. If any Food Business Operator done any offence related the food manufacturing or selling, is Authority imposed any penalties on Food Business Operator? and if then explain the same?
Yes. The Penalty imposed as per the offence done the FBO as follows

What Is Black Warrant (Form No. 42) Under CrPC?

What Is Black Warrant (Form No. 42) Under CrPC?

Black warrant Meaning:- The black warrant is addressed to the office in charge of the jail. It is also known as a death warrant or execution warrant, it identifies the convict who has been sentenced to death, the case, the day of his or her awarded death penalty and the court that confirmed the punishment after review mercy petition. The Black Warrant is titled ‘Warrant of Execution of a Sentence of Death. The family and advocate of accused of the convict are then informed about the execution of warrant.
 
What is Black Warrant ?
There are 56 forms under the CrPC, i.e., In CrPC, there is a form, form number 42. The same form number 42 is called the death warrant.
 
On the top of the Form No.42, it is written – “Warrant of execution of a sentence of death”. It is generally known as Black Warrant. When this warrant is issued by the court then it means that a person is hanged till death.
 
The proceedings for the black warrant/Death Warrant are initiated after all the options of mercy petitions are exhausted by a death row convict. The Union Home Ministry has also sent the file to the President for review the petition and confirmation; the President will decide (Article 72 of Indian Constitution) on it and convey its decision to Jail authorities. If the petition is rejected, the jail authorities will move the court seeking to issue a ‘Black warrant‘ for the convict.
 
In Nirbhaya Rape case 2012 convict, the mercy petition of Vinay Sharma has been rejected by both the Delhi government and Lieutenant Governor. The Delhi High Court issued execution warrants against the rest of the 4 convicts and directed that they be hanged in the Tihar Jail.
 
Form number 42 of the criminal procedure code specifically deals with “Warrant of Execution of a Sentence of Death”
 
Warrant of Execution of a Sentence of Death (Form No. 42)
To the Officer in charge of the Jail at __ (name of jail)
WHEREAS…………… (name of the prisoner, he/she), the _ (1st, 2nd, 3rd, as the case may be) Prisoner in Case Number ………..of the Calendar for 20…….at the Session held before me on the …..Day of ……… 20……. has been by a warrant of the Court, dated the day ………of ………, committed to your custody under sentence of death; and whereas the order of the High Court at (Place of the high Court) …………. confirming the said sentence has been received by this Court;
This is to authorize and require you to carry the said sentence into execution by causing the said ………. to be hanged by the neck until he be dead, at ………… (time and place of execution), and to return this warrant to the Court with an endorsement certifying that the sentence has been executed.
 
Dated, this ……..day of……….. 20…..,
 
(Seal of the Court) (Signature)

Recovery of Dues by Society from Members – Section 101

Recovery of Dues by Society from Members - Section 101

If you live in a co-operative housing society, you must have paid monthly maintenance to society. This maintenance is collected from every member of the society to fulfil various needs of the housing society, such as security dues, lift maintenance, house-keeping, and many other essential things that are important to keep a housing society in liveable and functional condition. But what happens when one of the members of society denies to pay the maintenance bill, be it intentionally or unintentionally? You must know this fact that it is obligatory to take approval as per resolution of general body meeting in the regard of maintenance service and other charges, as per Model bye-laws section 139. Irrespective of the fact whether member is occupying residential or commercial premises, maintenance charges should be same, under rule no 71(A)(7) of Model bye laws. The only difference would be in charges like Property Tax, Water Charges & Insurance. Sunanda J. Rangnekar V/s. Rahul Apartment No. 11 CHS – Bombay High Court on 10 August 2005.
 
According to section 73FF(1)(i)(e) of Maharashtra Cooperative Society Act 1960, a “defaulter” is a member of a society that defaults the payment of dues to the society within three months from the date of service of notice, in writing.
 
Usually, a society overlooks the defaults in the dues if it is of less amount. The problem arises when the due amount enters lakhs, and that’s when the society committee decides to take some serious steps in recovering such dues.
 
In such a situation, there are two courses of action which the managing committee could go for. One process involves lengthy judicial process i.e filing a case against the defaulter in the housing courts and then wait for the judgment, or, to opt for a quasi-judicial process which is much less complex and acts as a quick remedy for the housing societies.
 
Section 101 of the Maharasthra Cooperative Society Act, 1960 provides for a quasi-judicial process which a managing committee of a society can opt for recovering long overdues of a defaulter. Under section 101 of the Maharasthra Cooperative Society Act, 1960, if there is a case where the defaulter is denying the payment of his overlong dues, the managing committee could proceed with the steps listed out in section. Following steps must be followed to recover such overlong dues under section 101 of the act-
 
• The chairman or the secretary of the society should issue a warning notice for the payment of dues (including interest up to 21%) to the defaulter with a warning that on failure to make the payment as per the notice, the society will make an application the registrar under section 101 of the Maharasthra Cooperative Society Act, 1960 (MCS) for recovery of these outstanding dues.
 
• Upon failure of the defaulter to make the payment as mentioned in the warning notice, the managing committee shall pass a resolution to take appropriate action against the defaulter under section 101 of the act.
 
• Subsequently, the society shall issue one last and final notice to the defaulter regarding the issue.
 
• Thereafter, the society committee shall submit an application for recovery of dues under Section 101 of MCS Act’1960, where the secretary or the chairman of the society shall sign all the required documents including the defaulter’s overdue bills and and submit it to the assistant registrar or deputy registrar of the cooperative societies and pay the prescribed fee for such an application.
 
• The application fee is payable through a challan which is payable at the Reserve Bank of India under the head of the account: “0425 Co-operation 800 Other Receipts XVIII Notice & Recovery Fees”. The minimum fee is Rs. 25 and the maximum fee is Rs. 1,000.
 
Dues to be recovered:
a) Up to Rs. 1,000/-
b) Rs. 1001/- to 2000/-
c) Rs. 2,001/- to 5,000/-
d) Rs. 5,001/- & Above
 
Enquiry Fee:
a) 5.5% of the Claim
b) 4.5% of the Claim
c) 3.5% of the Claim
d) 3.0% of the claim but, maximum of Rs. 1,000/-
 
Court Fee Stamp:
a) Rs. 15/-
b) Rs. 20/-
c) Rs. 20/-
d) Rs. 25/-
 
• On receiving the application sent by the society, the assistant registrar or deputy registrar may schedule a hearing with the defaulter and verify the records submitted by the society. After such verification, the assistant registrar/deputy registrar would issue a “recovery certificate” for the outstanding amount due by the defaulter.
 
• After the recovery notice is issued by the registrar, the Recovery office on receipt of the Recovery Certificate shall prepare demand notice which shall be sent to the Sale-Officer for attaching the movable property of the defaulter.
 
• The defaulter member can appeal against the recovery certificate, but first shall make a payment not less than 50% of the total amount due.
 
• The sale officer on receiving the receipt of the recovery papers, shall visit the flat of the defaulter for preparing a list of the movable property and serve demand notice.
 
• If the defaulter still fails to pay the outstanding amount then, the sale officer has the authority to seize the movable property of the defaulter and hand it over to the secretary or the chairman of the society.
 
• Finally, the sale officer would fix a date, time and, place for the auction of the movable property of the defaulter. The money collected from the auction would be used to pay the outstanding money.
 
Recovering dues is made easy by introducing Section 101 under which, the assistant registrar/deputy registrar is authorized to take appropriate actions for recovering the dues in the most efficient and effective way. This method is easy to follow and it acts as a quick remedy for cooperative housing societies who are tired of long overdue of a defaulter.