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Brief Note on Summary Suits and Summons

Brief Note on Summary Suits and Summons

A Summary suit procedure is provided under Order XXXVII of the Code of Civil Procedure, 1908. It is a procedure that takes place faster compared to the ordinary procedure because in this procedure the court has the right to pass judgments without hearing the defense of the defendant. Even though this may seem like a violation of the rule Audi Alteram Partem which means that the court shall hear the other side as well, this summary procedure is specific to only those cases where the defendant has no defense and applies to only limited subject matters. The main purpose of a summary suit is to ensure that the proceedings and the disposal of the suit are taken place expeditiously to prevent unreasonable delay and obstruction by the defendant who already has no defense.
 
These summary suits are only limited to cases in which the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant which may be with or without interest, or for the recovery of immovable property which may be with or without a claim for rent or mesne profits, by a landlord against a tenant whose term has expired or has been duly determined by notice to quit, or has become liable to forfeiture for non-payment of rent, or against persons claiming under such tenant; and also against documents such as a bill of exchange, hundies, and promissory notes.
 
Such a suit can be instituted in High Courts, City Civil Courts, Courts of Small Causes and any other court notified by the High Court. The high court has the power to vary, enlarge and even restrict the category of suits to be brought under this order. A bill of exchange is a written unconditional order by one party to another to pay a certain amount either immediately or on a fixed date in exchange for goods and services. While hundi is also an unconditional order, it is slightly different from a bill of exchange because here party no.1 directs party no.2 to pay a certain amount to party no.3. It is an order made in writing by party no.1 and given to party no.2. It is usually used for credit purposes. A promissory note is an unconditional written promise to pay a certain amount mentioned to any person presenting the note. A liquidated demand in money is demand for a fixed sum of money.
 
Rule 2 of Order XXXVII mentions the institution while Rue 3 lays down the procedure. Rule 2 specifies the nature of the suit as well as also mentions that The summons of the suit have to be in the way specified in form no. 4 appendix B and the defendant does not have the right to defend himself unless he has made an appearance in the court. The first and foremost procedure after institution of the summary suit is that the defendant is to be served with a copy of the summons and within 10 days of such service the defendant is supposed to make an appearance, either himself or through his advocate, and shall also file a notice of appearance in the court. Further to this step, the plaintiff shall serve the summons of judgment mentioned in Form no. 4A in appendix B along with an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defense to the suit. Within 10 days of service of such summons of judgment, the defendant has to apply for leave to defend the suit. Leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just.
 
The defendant can be granted leave to defend unconditionally if he satisfies the court that he has a substantial defense, if he raises triable issues indicating that he has a fair or reasonable defense, he may be granted conditional leave if the trial judge doubts the defendant’s good faith or if the defendant raises a defense which is plausible but improbable and he will not be granted any leave at all if the defendant has no substantial defense and raises no genuine triable issue or if the amount claimed by the plaintiff is admitted and due by the defendant but has not yet been deposited in the court. And at the time of hearing of such summons for judgments, If the defendant has not applied for leave to defend, or if such an application has been made and refused, the plaintiff becomes entitled to the judgment forthwith. And If the conditions on which leave was granted are not complied with by the defendant then also the plaintiff becomes entitled to judgment forthwith. If the court deems fit, it can grant leave to the defendant and set aside the decree, the court may also ask for the bills, notes, hundis, etc to be deposited with the officer of the court. Further Sub-rule (7) of Order 37 provides that under this order the procedure in summary suits shall be the same as the procedure in suits instituted ordinarily.
 
Rule 17 of Order 5 of The Code Of Civil Procedure, 1908 lays down the procedure when the defendant or his agent refuses to sign the acknowledgment or accept service, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence and there is no other person present to accept service of the summons on his behalf, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business, and shall then return the original summons to the Court attaching a report stating that he has affixed the copy and mention the circumstances under which he did and also the name and address of the person by whom the house was identified and in whose presence the copy was affixed. Then the court shall examine the serving officer on oath, may make such further inquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service up to his discretion. Rule 20 of order 5 speaks about Substituted service. Wherein if the Court is satisfied/believes that the defendant is intentionally avoiding service, or the summons issues cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or in such other manner as the Court thinks fit. If the Court orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided or carried on the business. Service which has been substituted shall be treated as if it had been made on the defendant personally. The court shall also fix a time for the appearance of the defendant as per its discretion. Under rule 21 of order 5 covers service of summons where the defendant resides within the jurisdiction of another Court in which summons may be sent by the Court whether the defendant resides within or without the State, either by one of its officers or by post or by such courier service as may be approved by the High Court or by fax message or by Electronic Mail service or by any other means as may be provided by the rules made by the High Court to any Court having jurisdiction in the place where the defendant resides. By rule 25 of order 5, summons can be sent if the defendant resides out of India and has no agent. The summons shall be addressed to the defendant at the place where he is residing. for example, if the defendant resides in Bangladesh or Pakistan, the summons, together with a copy may be sent to any Court in that country (not being the High Court) having jurisdiction in the place
where the defendant resides.
 
Order 37 of the Code of Civil Procedure, 1908, has elaborately laid down the mechanism for speedy litigation; it enables the plaintiff to recover his money where the defendant has admitted his liability. It makes sure that through this procedure there is no unreasonable delay on the part of the defendant as seen in actual practice that the only notice of the defendant is to prolong the case. The plaintiff is entitled to judgment unless the defendant has a solid reason to defend his case in these matters. In a summary suit, the plaintiff almost immediately receives relief on which he has prayed before the court. Thus, the issuance of summons twice in a summary suit defeats the whole purpose of an expeditious trial by the court.
 
It is very important that a person gets justice and on time. Indian legal mechanism is particularly infamous for this particular aspect of delay in providing justice which ultimately defeats if not fully, at least partially the purpose of the whole trial. If a summary suit trial is not made in a speedy manner, it cannot be deemed as fair. It is unimaginable how much loss our nation and the people are suffering, because of the delay in disposing of the cases. Innocent people are the worst affected, who depend on courts for getting justice, which he can never calculate as to when so-called justice is finally arriving. None can compute his worries and the frustrations. Such sufferings and hardships only conclude that Delayed Justice is Denied Justice. It is obvious to say that inordinate and unnecessary delay defeats the end of justice. Even though The Apex Court in its various landmark judgments held that “right to speedy trial is a fundamental right which is implicit under Art. 21 of the Constitution”, it is hard to see courts actually working for it. While delivering Summons, it is a process to compel the attendance of the defendant in the matter at point to appear and file his answer which generally people try to evade the process of summons just to buy some time. It delays the speedy trial. Even though the whole purpose of a summary suit is to expeditiously complete the process and provide justice, this process of issuing summons twice only delays the process which results in people not believing in our justice system anymore. While the ‘service of summons’ appears to be simple and straightforward in theory, it has in fact turned tedious in practice. The problem of delay and huge arrears stares us all and unless we can do something about it, the whole system would get crushed under its weight. We must guard against the system getting discredited and people losing faith in it and taking recourse to extra legal remedies with all the sinister potentialities. The Indian judiciary is the last hope for citizens of India. There is a need for the judiciary to bring back people’s faith in them, it still has time to make amends for the people of the nation.

Brief Note on MSME

Brief Note on MSME

The Micro, Small, and Medium Enterprises have become the backbone of the Indian economy and play a key role in supporting the manufacturing sector. It contributes substantially as an ancillary unit in the comprehensive development of large industries and the socio-economic development of the country. Both manufacturing enterprises and the service sector are classified under the provisions of MSME. The Micro, Small, and Medium Enterprises Development Act, 2006 is an act to facilitate the promotion and development and enhance the competitiveness of MSMEs’and for matters connected therewith or incidental thereto. A single comprehensive act for development and regulation of small enterprises had been a long outstanding demand of the sector to free it from a plethora of laws and regulations and visits of inspectors, which it had to face with limited awareness and resources. the need has been emphasized from time to time by stakeholders at different fora. in addition, recommendations to provide for a proper legal framework for the small sector to relieve it of the requirements to comply with multiple rules and regulations were made by the committees such as the abid Hussain committee (1997) and study group under Dr. S.P. Gupta (2000). While the small-scale industries continued to be important for the economy, in recent years the small-scale services have also emerged as a significant sector contributing substantially to the economy and employing millions of workers. Therefore, it became necessary, as is the practice worldwide, to address the concerns of both the small-scale industries and services together and recognize them as small enterprises. In a fast-growing economy like ours, the natural mobility of small enterprises to medium ones has to be facilitated through appropriate policy interventions and legal frameworks. With these objectives in view, the government came with exclusive legislation for micro, small and medium enterprises known as the Micro, Small, and Medium Enterprises Development Act, 2006.
 
The provisions of the MSME Act pertaining to payment of consideration and recovery of outstanding dues apply to a transaction for the sale of goods or supply of services between a ‘supplier’ and a ‘buyer’. The term ‘buyer’ is defined under section 2(b) of the MSME Act to mean whoever buys goods from a supplier for consideration. The term ‘supplier’ is defined under section 2(n) of the MEME Act to mean a micro or small enterprise that has filed the entrepreneurs’ memorandum/Udyog aadhar with the concerned authority. It should be noted the term ‘supplier’ does not include medium-scale enterprises within its scope for the MSME Act. Hence, medium-scale enterprises would not be eligible to claim benefits of the provisions of the MSME Act applicable to outstanding dues.
 
To recover your money under MSME the first step is to have proper documentation for all the supplies made by the seller to your buyers, the most important part is to have a written purchase order and an invoice to establish the fact that there is a business relationship between the buyer and the seller or else your ordeal doesn’t get converted into a case by the MSME Samadhan i.e., the application for the delayed payment gets rejected. In such a scenario establishing that the seller company has/had a business relationship with the buyer through presenting documents such as invoice alone or delivery challan or any other document as an alternative doesn’t work as an acceptable document for consideration of the case under MSME Samadhan. Further, it is also mandatory to mention the seller companies’ uan aadhar number and that the payment of money is mandatory within 45 days of delivery.
 
The listed process below shall be approached by MSME Entities before the MSME Samadhan body,:-
 
1. It is mandatory to have registration of company/LLP/partnership etc. as an MSME and obtain an MSME certificate. 
2. It is mandated to record all formal purchase orders from its clients and procure the delivery proofs for all such orders.
3. It is necessary to mention in each invoice, “your entity/establishment name and uan” described with a note that “delayed payments beyond 45 days attract a rate of interest at a current rate three times of the bank rate as per notified by rbi, compounded with a monthly interest”.
 
In case any clients delay your payments unreasonably beyond the specified time of 45 days, you are allowed to directly inform them that you shall be approaching the MSME Samadhan for such pending payments if they do not make the required days payment. And they still are incapable of responding or releasing the payment, you have the right to file a complaint at www.samadhan.MSME.gov.in. The liable client would receive a notice from the Micro and Small Enterprise Facilitation Council (MSEFC) asking them to respond with compliance in a specified period (usually 15~30 days).
 
In the MSME Act, section 15 provides that where any supplier supplies goods or renders services to any buyer, the buyer is obligated to make the payment for such supply on or before the following dates: –

1. Where the date of payment is not agreed between the parties – payment is required to be made within 15 days from
(i) the day of actual delivery of the goods, where no objection in writing is raised by the buyer or
(ii) where any objection is raised by the buyer in writing, then the day on which such objection is removed by the supplier

2. Where the date of payment is agreed in writing between the parties– on the agreed date provided such date shall not exceed 45 days from
(i) the day of actual delivery of the goods, where no objection in writing is raised by the buyer or
(ii) where any objection is raised by the buyer in writing, then the day on which such objection is removed by the supplier.
 
According to section 16 of the act, it is provided that where the buyer fails to make payment to the supplier within the period as stipulated under the provisions of section 15 of the MSME Act, then the buyer shall be liable to pay compound interest to the supplier on the dues, from the date of default. The prescribed rate of such compound interest is three times the bank rate notified by the Reserve Bank of India. The existing bank rate of interest can be checked on the RBI’s website under the policy rates.
According to section 17 of the act, it is provided that for the goods supplied, the buyer shall be liable to pay the amount with interest thereon.
 
Section 18 of the MSME Act provides that where the buyer fails to make the payment of the principal amount of dues or the interest arising thereon as per section 16 of the MSME Act, then the supplier can file its complaint with the micro and small enterprises facilitation council (‘MSEFC’). The government of India has launched the MSME Samadhan portal for ease of filing such complaints. In case of a dispute regarding any claim due as above, an approach shall be made to the Micro and Small Enterprises Facilitation Council (MSME-FC) constituted by the concerned state government. Every request made shall be decided within the 90 days’ time limit.
 
According to section 19, any request to uphold and set aside the arbitration award shall not be entertained and framed by the court of law until the applicant has deposited 75 % of the amount awarded by the MSME Samadhan council.
 
Penalty for non-disclosure in annual accounts or form MSME-1 under the MSME Samadhan council laws. The purchaser should mention the amount overdue for release payment to the MSMEs unit in its annual audited financial statements and shall also file details of such overdue in form MSME-1 for outstanding balances.
 
Any such violation to disclose such amounts shall further be charged a penalty, not less than Rs. 10,000 under the MSMEd act. In addition to the non-compliance penalty imposed by the ROC (MCA) under Section 405(4) of the Companies Act, in case the purchaser is a company.
 
Section 22 of the MSME Act provides that where the buyer is required to get his annual accounts audited under any law, then the buyer is required to furnish in its statement of annual accounts, the details of the principal amount and the interest due to any supplier as at the end of a financial year. Similarly, under the provisions companies act, the buyer (being a company) who has outstanding dues towards a supplier is required to submit form MSME-1, providing details of the outstanding dues and the reasons for the delay in payment of dues. Failure to file the form MSME -1 attracts penal consequences for the buyer.
 
According to section 23 of the act, it provides that the amount of interest payable or paid by a buyer to a supplier under section 16 of the MSME Act shall not be allowed as a deduction for computation of income under the provisions of the income tax act, 1961.
 
Under the act, the dispute resolution mechanism overrides the arbitration clause incorporated in any of the contracts between such MSME and its clients. This overriding effect originates from Section 24 of the act. As a first step, the MSEFC shall initiate conciliation proceedings to resolve the dispute between the buyer and supplier. where the conciliation proceedings fail and there is no settlement between the buyer and seller, then the arbitration proceedings are initiated for the resolution of the dispute. such arbitration proceedings are governed by the provisions of the arbitration and conciliation act, 1996.
 
The MSME department also examines applications filed by MSME units and if the application is complete in all respects then the department will issue directions to the buyer unit for payment of due amount along with interest as per the provisions under the MSMED Act 2006.

Arbitration

Arbitration

What is Arbitration?
 
‘Arbitration is a process in which disputing parties by agreement decide to peacefully resolve their dispute by referring to an arbitrator or the arbitral tribunal. By choosing this mode, one eliminates the traditional Court Procedure and has opted for a way to resolve their dispute alternatively. In this modern world, where time is our priority, Arbitration is the best way to go forward rather than wasting an indefinite amount of time in the courtrooms. Arbitration provides a fair trial to both the parties through mutual agreement without any delay in the process and at the same time without any unnecessary expense. There does prevail a huge misconception that arbitration has replaced the judicial mechanism of litigation but in my opinion, it co-exists with it, arbitration has enhanced and has provided viable options to the parties in an alternative way to settle their disputes out of the court speedily and cost-effectively. The main objective of arbitration is to provide an unprejudiced and impartial settlement of disputes without causing delay or huge expenditure, with the parties willing to agree upon the mode in which their conflicts should be resolved.
 
Types of Arbitration
 
Two forms of arbitration are recognized all over the world, Ad hoc arbitration and Institutional Arbitration and when spoken specifically about India, Ad hoc arbitration has received tremendous amounts of recognition when compared to institutional arbitration. Ad hoc arbitration is the process in which the parties have the liberty to make decisions about the number of arbitrators, how they are appointed, place and seat of the arbitration, clauses of the agreement, the procedure for conducting the arbitration, etc. under the Arbitration and Conciliation Act, 1996 and hence the question whether an association can have their own arbitration rules and also be legal in nature under the arbitration act is in affirmative as the act provides the parties with such power. 
 
All about Ad Hoc Arbitration 
 
The parties who have agreed in a contract to seek ad hoc arbitration after a dispute, have the option to negotiate a completely new set of rules, and procedures as per their requirement and discretion. They can amend provisions for the administration. The parties can adopt a whole set of rules from an arbitral institution, these rules have been drafted specifically for ad hoc arbitral proceedings in the “UNCITRAL Rules” or the “CPR rules” which can be used in domestic as well as international cases. They can adopt these rules without even referring their disputes to that institution. The biggest advantage to parties in ad hoc arbitral proceedings is that they can block dates for hearing as per their schedule, saving their time if going through the normal court proceedings where trials and hearings can go up to years.
 
Furthermore, In ad hoc arbitrations, the fees can be negotiated directly between the parties and the arbitrators giving them the option to negotiate. Fees are generally fixed according to the status of the Arbitral Tribunal. An ad hoc arbitration process does not even charge the administration fees whereas charges levied by an arbitral institution constitute a hue portion of the overall costs. Hence we can conclude that ad hoc arbitration is an easier, cheaper, and speedy process.
 
This procedure gives parties greater control over the arbitration process, the flexibility to decide the procedure provided the parties decide to cooperate, it also requires effort and expertise from the parties to determine the arbitration rules. The arbitral mechanism is structured specifically for a particular agreement or a dispute. If the parties cannot agree on such an arbitral agreement which is laid down by the arbitral tribunal once the arbitration has begun, it will be resolved by the law of the seat of arbitration. Therefore, It is preferable at least to specify the place or ‘seat’ of the arbitration as well since this will have a significant impact on several vital issues such as the procedural laws governing the arbitration and the enforceability of the award. The Commercial Courts Act has set up commercial courts at the district level and commercial divisions in High Courts having ordinary original civil jurisdiction. These commercial courts/divisions hear arbitration matters involving commercial disputes amongst other commercial matters. Parties also have the liberty to initiate court proceedings before, after, or during the arbitral proceedings and can even enforce it at the stage of arbitral awards. One of the many reasons that parties are hesitant to opt for the arbitration process is because of the high pendency of litigation before Indian courts. The major benefit to agreeing to arbitrate after the dispute is because arbitration can be conducted under rules tailored to the dispute rather than under what may have been a ‘one size fits all’ set of rules.
 
All about Institutional Arbitration
 
In an institutional arbitration, the arbitration agreement designates an arbitral institution to administer the arbitration. The parties then submit their disputes to the institution that intervenes and administers the arbitral process as provided by the rules of that institution. It is pertinent to note that these institutions do not arbitrate the dispute, it is the arbitrators who arbitrate and only the rules of the institution apply. And arbitral institutions do not provide the same services. Some institutions of high reputation simply offer a set of rules and guidelines, and no other arbitral services. One such illustration is the London Maritime Arbitrators Association. There are other institutions, which provide rules and a roster of qualified arbitrators but are not involved in the appointment of arbitrators; Certain groups of institutions supervise the whole arbitration process from the notification to the defending party of the claimant’s request for arbitration to, and including, the notification of the arbitral award to the parties. For instance the International Court of Arbitration of The International Chamber of Commerce.
 
In Institutional arbitration, a well-tried and tested set of arbitral rules are set out in a booklet. Parties who agree to submit any dispute to arbitration in accordance with the rules of a named institution effectively incorporate that institution’s book of rules into their arbitration agreement. Automatic incorporation of a book of rules is one of the principal advantages of institutional arbitration.
 
Institutional arbitration refers to settlement of disputes through established institutions where in its rules of procedure are well defined. In other words, an institutional arbitration is the one in which a specialized institution intervenes and takes on the responsibility of administering the arbitration process. Such institutions’ when they come into existence for arbitrating the disputes, help in quickening the process by providing support in the form of appointment of arbitrators, case management services including oversight of the arbitral process, venues for holding hearings etc. Each institution has its own set of rules which provide a framework for the arbitration, and its own form of administration to assist in the process. The institutional arbitration is based on the UNCITRAL model of law.
 
The advantages of institutional arbitration are as follows: Firstly, efficient administration is of paramount element involved in institutional arbitration. Institutions established for the purpose of arbitration consist of experts as well as trained staff. And for the administration of the arbitration process, the parties are allotted such experts who with their expertise and adequate knowledge resolve the disputes adhering to the predefined rules or procedure of the concerned institutional arbitration. It is the duty of the administrative staff to frame rules, ensure that the time limits are being complied to, and the process is going ahead as smoothly as possible. Secondly, the rules and procedure are pre-determined and are fixed by the institution itself. As these institutions have experience of arbitrating numerous matters and are well versed with the eventualities, if any. Hence ambiguity is less likely to occur as procedures are laid down considering all the possibilities of any kind of disagreement during the process of settlement. Thirdly, parties have an autonomy to select an arbitrator possessing necessary skills, expertise and experience to provide a quick and effective dispute resolution process. Moreover, arbitral institutions hire such experts, who specialize in wide areas of law and possess necessary competence. Big institutions like ICC have a network of national committees for appointment of arbitrators to ensure that there is no bias towards the country to which the parties belong. Fourthly, the fee charged by the arbitrators is another vital advantage of this mode of arbitration. The fees or remuneration of the arbitrators under institutional arbitration is already fixed. It avoids disputing parties to quibble with the arbitrators to decide the terms and amount of remuneration. Hence, the terms relating to arbitrators’ fees and related thereto is decided with the disputing parties in the beginning itself. It eases the process of settlement by saving parties time and effort of determining the arbitration procedure. Another merit of institutional arbitration is that the parties and the arbitrators can seek assistance and advice from the institutional staff, responsible for administrating international commercial arbitrations under the institutional rules. Thus, doubts can be clarified or a deadlock can be resolved without court intervention. Whereas in ad hoc arbitration, the parties would be compelled to approach the Court, in order to take the arbitration forward and consequently, the perceived cost advantage of ad hoc arbitration would be negated by the litigation expenses. Also, the institutional staff constantly monitors the arbitration to ensure that the arbitration is completed and an award is made within reasonable time and without undue delay. Further the draft clause is that it is revised periodically by the institution, drawing on experience in conducting arbitrations regularly and approved by arbitration experts, taking account of the latest developments in arbitration practice. This ensures that there is no ambiguity in relation to the arbitration process. On the other hand, ambiguous arbitration clauses in ad hoc arbitration compel parties to seek court intervention in order to commence or continue the arbitration.
 
Many incredible organizations, world-wide, have the capability and the know-how to deliver this service. Within the boundaries of India, to name a few, some of the prominent arbitral institutions are the Indian Council of Arbitration (“ICA”), the Delhi International Arbitration Centre (“DIAC”), the Mumbai Centre for International Arbitration (“MCIA”) and the ICADR. These institutions have their own sets of arbitral rules, panels of arbitrators and offer venues for conducting arbitral proceedings. They offer varying degrees of administrative support for arbitrations. And when talking about international commercial disputes, institutional arbitrations like these mentioned above are more suitable since it provides established and up to date arbitration rules, support, supervision and monitoring of the arbitration, review of the awards and strengthens the awards’ credibility.

Atrocities and POCSO

Atrocities and POCSO

 

 

 

PREVENTION OF ATROCITIES ACT, 1989
 

 

 

 

The Scheduled Castes And The Scheduled Tribes (Prevention Of Atrocities) Act, 1989, is a legislation created with the purpose of prevention of committing atrocities against the members of the Schedules Caste and Scheduled Tribes.

 

Atrocities is defined under Section 2(1)(a) as any offence punishable under section 3 of the Act. Section 3 lays down various acts which count as offences, which are committed by people who are not members of Scheduled Caste or a Scheduled Tribe, on members of Scheduled Caste and Scheduled Tribe.

 

 
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (POCSO) ACT, 2012
 

The POCSO Act, 2012 is a legislation made to protect children from various sexual offences, such as sexual assault and sexual harassment and pornography. This act also aims to ensure that interests of the children are safeguarding throughout the stages of the judicial process, by incorporating child friendly methods and mechanism in every step.

 

 

Both of these legislations have been created to protect the interests and facilitate safety towards different groups of people, one catering to the SC and ST group and another to children. However, sometimes there are acts which can fall simultaneously into both the groups. It is also no secret that someone accused under these acts suffer a severe damage.

 

 
RIGHTS OF THE ACCUSED
 
Right of the accused in criminal offences are commonly as follows, which have been enumerated mainly in the Criminal Procedure Code, 1973.
 
1. An accused is assumed to be innocent until proven guilty, as provided in the Evidence Act.
 
2. An accused has a right to defend himself and present evidence during a trial, and the right to be acquitted when there are no grounds.
 
3. An accused has the right to representation and free legal aid, when he does not have adequate means to represent himself
 
4. The accused also has the right to know the grounds of his arrest
 
5. The accused has a right to be granted bail.
 
6. The accused has the right to have the copy of the police report and other relevant documents
 

7. The accused has the rights provided under article 20 of the Indian Constitution, which includes double jeopardy and self incrimination, along with right to life and personal liberty under article 21.

 

 
PREVENTION OF ATROCITIES ACT, 1989
 

This legislation does not allow the accused to have anticipatory bail, which dilutes the right of bail of the accused. This has been stated in section 18, which states that the provisions of section 438 of the CrPC(which concerns with anticipatory bail), cannot be invoked for offences committed under the current act, however, there have been cases, making this provision slightly more flexible.

 

 
Prathvi Raj Chouhan v. Union of India, (2020) 4 SCC 727
 

The High Court can grant anticipatory bail in the capacity of section 482 of the CrPC in exceptional cases to prevent misuse of provisions on settled parameters.

 

 
Mohandas C. v. Sub Inspector of Police, 2020 SCC OnLine Ker 4783
 

Anticipatory bail can be granted for offences under the Act only in the event of no prima facie case being made out. The Supreme Court has alerted the courts to be cautious while exercising such power.

 

 
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (POCSO) ACT, 2012
 

POCSO Act, carries reverse burden for certain offences, which means that the burden of proof lies on the accused to prove that he is not guilty of committing offences enlisted under sections 3,5,7,9 of the act, which are the offences of penetrative sexual assault, aggravated penetrative sexual assault, sexual assault and sexual harassment. This reverse burden has been stated in section 29 of the Act. Adding to this, section 30 of the Act states that for the offences in the act that required a person to have “culpable mental state”, the Courts will assume that the person has culpable mental state to commit the offence unless he doesn’t prove otherwise.

 

 
SPECIAL COURTS – POCSO VS PREVENTION OF ATROCITIES ACT, 2012
 

Both these Acts establish “Special Courts”, which have the power and authority of for the disposing cases which arise from their respective Acts, and follow the respective procedures entailed in the Acts.

 

 
However, when there are the same set of facts constitute a offence in both the legislations, which is the procedure that should override the other? Both Acts contain non-obstinate clauses, which state that the provisions of the said act will prevail, when there exists a contradiction with other legislations.

 

The Courts have answered this questions in various cases, where the conclusions lies that the POCSO Act jurisdiction prevails over the Prevention of Atrocities Act.

 

 

It was stated in the case of Union of India v. Ranjit Kumar, that when there is a case of conflict between any two laws, the law which came in force later is ordinarily given effect, and due to this reasoning, there must be a presumption in favour of the POCSO Act’s provisions in cases of conflict with the Atrocities Act. This preference has also been given in the case of Pramod Yadav v. The State of Madhya Pradesh.

 

 
WHY IS THE POCSO GIVEN A PREFERENCE OVER THE ATROCITIES ACT?
 

1. Section 28(2) of the POCSO Act, allows the Special Courts to try offences which the accused can be tried under offences other than the ones given in the POCSO Act, however, such power has not been given in the Preventions of Atrocities Act.

 

 

2. Another reason that can be given, the POCSO Act, provides for more detailed procedures and several additional safeguards for the special care of children, which are not present in the Atrocities Act. The purpose of both Atrocities Act an the POSCO Act are to protect vulnerable classes of society, which are more prone to being victims of crime. If in these cases, the Atrocities Act is given preference over the POCSO Act, it will be depriving the children of the SC/ST groups, from getting the additional safeguards that are provided to children, which defeats the very purpose of the act.

 

 
PLIGHT OF THE ACCUSED
 
In the POCSO Act, it is clear that the burden of proving innocence is on the accused, and adding to that, according to section 22 of the POCSO Act, if a child makes a false complaint, they will not be penalised for the same, regardless of the fact that the accused had to face the burden of proving himself innocent.

 
 
While for the Atrocities Act, anticipatory bail is not allowed in most cases. Right of bail is an intrinsic right of an accused provided in the Criminal Procedure Code, 1973, and this is taken away partially, when anticipatory bail is not granted. Adding to this the act has been used multiple times to threaten people, and has been heavily misused.
 

Defamation Decoded

Defamation Decoded

The constitution of India has given every person the right to freedom of speech and expression, it is a fundamental right and hence highly valued but the constitution with all its power also puts some restrictions on it. One has the right to protect his reputation but cant tarnish someone else’s at the same time. This injury to a person’s reputation is called defamation. It is defined under Sec 499 of Indian penal code as Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.
 
Explanation 1
Anything imputed or published against a deceased person shall be derogatory to him and also shall hurt the feelings of his family or other near relatives will amount to defamation
 
Explanation 2
Anything imputed, published against a company or an association or collection of persons as such may amount to defamation.
 
Explanation 3
An imputation in the form of an expression, a remark or a hint typically a disparaging one. If one can prove that even though the statement published does not appear defamatory prima facie but by the circumstances and nature of its publication is derogatory then the offence of defamation may be said to have taken place.
 
Explanation 4
Anything imputed or published which directly or indirectly, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or his credit, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgrace­ful amounts to defamation.
 
Any false and unprivileged statement published or spoken deliberately, intentionally, knowingly to damage someone’s reputation is defamation. It is pertinent to note that defamation is not just a wrong done by a person to another’s reputation by words, written or spoken, but can also be done in signs, or other visible representation.
 
To prove a defamation case, there are three most essentials. The foremost thing is that the statement spoken, written, or intended has caused injury or lowered the other person’s reputation. Secondly, it must prove that the statement thus spoken or published is directed towards the plaintiff. And thirdly, the statement must be published. It must be read by a third party, for, it is the opinion held by the person defamed by others that matters; insults directed to the plaintiff himself do not in themselves constitute defamation, the tort is not primarily concerned with the plaintiff’s wounded feelings.
 
There are two types of defamation under English law, libel, and slander.
Slander is the statement made through some spoken words or some transitory form, whether visible or audible such as gestures, hissing, or such other things. It appears to be a civil wrong but the words made may be blasphemous, seditious or obscene and this is a criminal offence under Section 499 of IPC.
 
Libel is a representation made in some permanent form, for example writing, printing, or statute. In Indian law there is no distinction made between libel and slander; both are treated as criminal offenses under section 499 of IPC. It is a criminal offence as well as a civil wrong.
 
An aggrieved person can avail both the remedies civil and criminal. The party in no way is compelled to choose between the two remedies. And hence there are two types of defamation, civil defamation, and criminal defamation. Let’s go through them in detail.
 
In a Civil Defamation case, monetary compensation can be claimed, provided the statements made are false and without the consent of the alleged defamed person. Mere vague or general statements will not amount to defamation; the injury to one’s reputation should be visible from a common man’s eye. It must be exposed to a third party, either orally or published. And if any statement harming the person’s reputation is made in it, it will constitute defamation even if it was sent as a private letter, since the requirement of a third person is essential to prove a defamation case.
 
Under a Criminal Case, the intention to defame is necessary. There must be malicious intent to put down another person without any reasonable doubt. Section 499 of the Indian penal code defines defamation and also states down its exceptions. While Sec 499 defines Defamation, Section 500 on the other hand provides for the punishment to a person committing the offense. Section 500 of the Code punishes defamation with simple imprisonment which may extend to two years, or fine or both. The Indian Penal Code also punishes printing or engraving matter known to be defamatory or sale of such printed or engraved substance containing defamatory matter about any person in the same manner of punishing defamation. Defamation is a bailable, non-cognizable, and compoundable offence, which means no police can register a case and start an investigation without the court’s permission. If a person is found guilty under sections 499 and 500 of IPC, he could be sent to jail for 2 years. The main difference between criminal and civil defamation is that an accused person can be sentenced to jail under the provisions of criminal defamation but in civil defamation provisions a person can only claim damages from the accused person.
 
Now that we’ve understood what exactly defamation is, let us get an insight into a landmark judgment regarding the same. In the case of Ram Jethmalani v/s Subramaniam Swamy, the defendant i.e Subramaniam Swamy passed a comment which stated that Mr. Jethmalani has been receiving money from the LTTE which is being deposited in his son’s account in Citibank, for such a grave allegation a suit was filed by Mr. Jethmalani, stating that the defendant was guilty of vicious and gross libel. Plaintiff claimed that he has a good reputation in India and also outside, and these types of statements damage the personal, political and professional reputation for which he claimed exemplary damages. Even though the defendant claimed that his statement was not with malicious intent, he could not prove the truthness of it. The Judge declared that this is prima facie defamatory. The statement was irrelevant to the situation, actual malice on part of the defendant was well established which harmed the image of the plaintiff at large and such allegations destroyed the personal and political reputation. Compensation of 5 lacs was awarded.
 
Defamation to one’s reputation can destroy his career, and hence defamation laws have commenced so that these cases can be legally dealt with and one does not misuse his right of freedom of speech and expression. In the case mentioned above, Mr. Ram Jethmalani is a very reputed person in India, he has served as the Law Minister and also the minister of Urban Development, statements made against him are of grave importance and are always to be taken seriously. Remarks made by Subramaniam Swamy were a dagger to his reputation because LTTE is a banned organization and had been declared a terrorist group by many countries. and being associated in any way with a terrorist organization leads to the loss of one’s reputation, even though it is proven false. Hence, Mr. Jethmalani deserved to be rightly compensated. A person takes years of effort and hard work to make a reputation in the society that he lives in, and it is rightly said that a name is built over time but can be very easily damaged and due to this a Court has a huge responsibility to judge the person fairly. The court must watch the thin line between the right to freedom of speech and one’s reputation at harm because to one, his reputation is everything.
 
In another case, Balraj Khanna & Ors. Vs. Moti Ram, the Respondent (Moti Ram) filed a complaint against the Appellant (Balraj Khanna) under section 500 of IPC alleging that appellants made certain defamatory comments regarding his character and working in the government office and that caused the suspension of the respondent. Respondent during December of 1964 was working as the liaison officer in Municipal Corporation in Delhi, appellants were members of the standing committee at that time. Appellants and respondents were not on good terms with each other and appellants many times tried to cause harm to the respondent on many issues. Appellant Balraj Khanna was having major control over the standing committee at that time so he used his influence on the committee against the respondent, calling the committee to pass a resolution for the suspension of the respondent. Meeting held on December 10th of 1964 in which many officers, as well as media personals, were called and appellants made serious allegations against the respondent in front of all those present and passed the resolution for suspension, which decrement the value of the character of the respondent in front of people who were present. The supreme court in agreement with the reasoning of the High Court on this aspect held that the High Court has made a correct approach when it held that the evidence implicates all the members of the Standing Committee, including the appellants in the charge of making the statements alleged to be defamatory. And the question of the application of the Exceptions to Section 499 I. P. C. does not arise at the pretrial stage, it will have to be gone into during the process of trial of the complaint. The appeal failed and was dismissed.
 
Certain exceptions have been provided under Section 499 of the IPC, they are as follows:
 
1. Truth for Public Good
If a statement published or made is true concerning any person and it is for the public good then it would not amount to defamation however derogatory it is.
 
2. Fair Criticism of Public Servants
Every citizen has a legal right to make true and fair statements on the public servants in the interest of the public.
 
3. Fair Comment on Public Conduct of Public Men Other Than Public Servants
A fair, honest and true criticism of servants of the public other than government employees will not amount to defamation rather succeed the test of fair comment.
 
4. Publication of Report of Proceedings of Courts of Justice 
As the Judicial proceedings are a matter of public interest, It is essential that reports of these proceedings are made with utmost honesty, free from malafide, dishonest and incorrect information. It must contain all information precisely how they occurred. This would also not amount to defamation.
 
5. Comment on Cases
It would not amount to defamation if an opinion respecting the merits of any civil or criminal case decided by the court is expressed in good faith. This exception provides Protection to case comments of the decisions that have been adjudicated upon
 
6. Merits of Public Performance/Literary Criticism 
The society must have the opportunity to freely criticise the performances or literary work that is submitted to its judgement. A fair and honest opinion respecting the merits of any performance which the author himself has submitted will not amount to defamation.
 
Ingredients that need to be fulfilled for this exception:
a. An invitation from the author to express your opinions on his work is necessary.
b. The criticisms must be pertinent to the standard of the performance and not on the basis of capability to do the same or not.
c. The statement must be made in good faith.
 
7. Censure by One in Authority
It is not defamation if a person having authority over another, either conferred by law or arising out of a lawful contract, to pass in good faith any censure. Illustration A Judge censuring in good faith the conduct of a witness, a parent censuring in good faith a child in the presence of other children.
 
Ingredients that need to be fulfilled for this exception:
a. The person making the statement must be in a position of authority over whom the statement is made.
b. The statement needs to be made in good faith.
 
8. Complaint to Authority
It would not amount to defamation if a complaint in good faith is made to a person who is in authority to punish the other.
 
Ingredients that need to be fulfilled for this exception:
a. The statement must be made to a person in authority
b. The statement must be made in good faith.
 
9. Imputation for Protection of Interests
This exception is similar to the first exception which deals with the public good. The Supreme Court in the case of Harbhajan Singh v State of Punjab held that this exception has to be applied by keeping in mind the facts and circumstances of each case which includes, the alleged malice, due care and attention where defamation is alleged. It is not enough on the part of the accused that he believed the statement to be true. Under this exception, even if good faith has to be established, the imputation must be made for the protection of interest of the person making it.
 
10. Caution in Good Faith
Under this exception, it is necessary to prove that the imputations were a result of ‘good faith’ and were meant for ‘public good’. One is not supposed to prove the same beyond reasonable doubt and the mere probability that he did not commit the offence is sufficient.

Why do District Court Judgements never get reported Online?

Why do District Court Judgements never get reported Online?

In India, transparency has been upheld as crucial for a smooth functioning of the Government Machinery. Keeping this in mind, it was in the year 2005 Right to Information Act came into force that empowered the citizens, promoted transparency and accountability in the working of the Government, aimed to contain corruption, and make the democracy work for the people in a real sense. But when the topic comes to transparency in the workings of the judiciary, the talks go mum.
 
As far as Indian Judiciary goes only the Supreme Court and High Court judgements are reported. The District Court or Trial Court Judgements can be availed only the party to the case that too only through their Advocates. This one particular fact put forth a question that what might be the reason behind such analogy. The question was partially answered by the Hon’ble Supreme Court in 2020 through the judgement of Chief Information Commissioner Officer v. High Court of Gujarat and Others wherein the issue discussed was whether the copies of a particular case in a District Court of Gujarat be done by filing an RTI. It was held that
 
“when there is an effective machinery for having access to the information or obtaining certified copies which, in our view, is a very simple procedure i.e. filing of an application/affidavit with requisite court fee and stating the reasons for which the certified copies are required, we do not find any justification for invoking Section 11 of the RTI Act and adopt a cumbersome procedure. This would involve wastage of both time and fiscal resources which the preamble of the RTI Act itself intends to avoid.”
 
 
Through this judgement it was very clearly opined that there is no need for the Lower Court judgements to be available to public at large, without a proper intervention and process that mandates the involvement of the Court Staff.
 
A ray of light in this scenario can be the upcoming project of e-filings as started on 31.07.2020 that aims to reduce the dependency of courts on papers and promote the e-filing of not only the cases but also the related replies, affidavits, application and documents as submitted during the course of a case. The process has just begun and only being practiced in selective District Court of States like Delhi, Chhattisgarh. The e-filing portal not only allows the advocate to register themselves but also allows a common man to do the same. Once the registration is reviewed by the admin of the selected High Court/Court Establishment. With a proper set up of the e-filing being done, one can expect the judgements to get uploaded in the database of the District Courts. With just one step of making the database get accessed to all, like the Supreme Court on every District Court’s official website, every person will be able to read the judgements as being passed by any Court in India.
 
This task has been achieved in foreign nations too, like America follows the system of PACER- Public Access to Court Electronic Records. PACER provides the public of America, with instantaneous access to more than 1 billion documents filed at all federal courts. As far as costing goes, access to case information costs $0.10 per page.
 
In New Zealand the judgements of the District Court are also available with a simple research in its database. But to ensure the protection of the privacy of the parties in some specific cases, the real names of the parties are replaced with pseudonyms. This is a very unique approach towards ensuring transparency and privacy at the same time.
 
The reason behind asking for the judgements of the District Courts to be reported online is to help the general public get an easy access to the judiciary and to help the law students understand the process of a case. District Courts are the busiest courts of all because they are the first door to knock when seeking justice. For the general public, to know their case status only two ways are available, first approach the advocate and know the status of case proceedings or try and use the E-Court app themselves. For a novice E-court can get tricky as it requires some crucial details like the court complex and case number to find a case and then even after finding it, the only information available is the stage at which the case is. One cannot access the documents and drafts as submitted by both the parties. Secondly for the law students who are studying, trial courts are the practice areas from where they will be able to understand the actual procedure of civil and criminal cases, application of laws to facts and get an idea about the judicial proceedings. Had the judgements of the District Courts become available online, even this task would have been solved as the students would simply choose a case and follow its proceedings, thereby understanding the process, laws and their application all at the same time.

Why Lawyer and Whether Legal Costing is an Expense or an Asset?

Why Lawyer and Whether Legal Costing is an Expense or an Asset?

A] Why Lawyer?
Some Business persons may have all the luck but most are just good business people. It is a fact that having success in business is not just about doing things but it also about obeying certain business laws and the majority of successful entrepreneurs are well versed with the relevant laws that surround their business market as this actually helps to avoid the potential failure that follows costly litigation. Just a suggestion to the new business persons that they shall visit various websites relating to business law and get basic knowledge of business law to ensure you are aware of something if not all of the business laws.
 
It is a fact that when businesses are starting up, they often overlook the necessity of including legal support in the budget. Legal support is viewed as a luxury, or something not needed unless the business gets into a legal mess. In reality, legal support is especially important for small businesses
 
A.1] Does Law affects businesses?
It is a fact that Government can change the rules and regulations in businesses from time to time and hence it becomes more relevant for you to be updated with the new changed laws as most of the time new changes can do bring or force you to change the operating way of your business. It is here the real fact is that it will not be possible for you to know all the rules and regulations that apply to your business line and hence this calls for getting someone who knows better than you and represent you who else better than a good business lawyer as they are the right person to direct you toward your success and profit without breaking the laws.
 
A.2] What is the importance of having a Legal Attorney/Advisor with you every time?
Working with a trusted Legal Advisor is exceptionally beneficial when the unexpected occurs as one shall not expect to know in advance what things may go wrong or when things go wrong. You shall remember the fact that “The middle of a tailspin is not the best time to find a legal attorney” and this does call for an established relationship with a trusted attorney who can help you with effective guidance when it’s needed most. Further, it is fact that emergencies are not the only situations that call for advice from your legal attorney as things are constantly popping up – from trouble with employees to surprise opportunities to grow, and having a legal partner a phone call away will ensure a quick, decisive response.
 
Please note that MSME/small businesses have the most to lose if things go wrong and, unfortunately, it is impossible to protect a business from every possible legal issue. However, businesses can and should work to minimize their risk of exposure and maximize protection. Dedicating upfront time and a budget line item to finding and working with a trusted attorney is an investment all businesses should make.
 
B] Whether Legal Costing is not Expenses but Assets
The reason I have chosen this topic has been in my mind for many years now and in fact, I have around more than 100 legal case study to share which have always brought me to the question as to “why business entities don’t realize the value of Legal in their business” and when this was asked to those clients who are part of 100 legal case study the reply received was costs attached to Legal but the most important reply was “never thought that getting legal advice will be of any help” and further some of the states that they believed they could handle the issue better on their own without having legal background”. Hence, I thought of penning down my views to readers and business entities of “how to know the value of Legal in their business” or can say “Valuation Statistics in their Business”
 
Case Study
 
Mr. Rahul came to meet us in the Year 2018 for getting certain agreements done for his business as till this time he invested an amount of Rs. 8 Lakhs for forming the company, marketing, structure, employees, social media accounts, server, and all other charges. During the meeting to know the purpose and intention of executing agreements, there was certain question was asked which is as under along with reply:
 
• What is this business is all about – this business is a like to property shareholder where any number of people can become the owner of the property and we will issue Share Certificate
 
• How this will work – We shall inform about the property and call the people to invest jointly and whoever does that will be allotted the Share certificate stating of being the owner of the property
 
• Your income = it was replied by way of an ex, if there is a land worth Rs. 2 Lakhs and there are five owners and if this land is sold for 5 Lakhs, we shall charge a commission of 3% 
 
Once this query session was done, we were confused about the legality of this business and asked the following query:
 
• any prior legal opinion you have taken in this business model = Not required as I am aware of this business model and laws in this regard
 
• what is your income post all legal and taxation compliance – he said around 3%
 
Upon this, our query was as under:
What about the payment of Stamp Duty for the purchase of property which is around 6% = He was surprised and said “is there any Stamp Duty has to be paid” and our Reply was Yes you have to as per Registration Act and Stamp Duty Act. The moment this was informed, the whole business model which had a 3% margin of profit came down in negative and this then discussed from all angles and then after a month, Mr. Rahul dropped the idea of this business and had to incur the loss of around Rs. 10 Lakhs.
 
What Mr. Rahul could have done to avoid Rs. 10 Lakhs loss?
Mr. Rahul could have approached the Legal Advisor and get the opinion and then get the Taxation opinion and then take the second opinion and it would have been on that moment itself could have realized the danger in its business model but instead of doing this, Mr. Rahul preferred to go alone and only at last end preferred coming to Legal Advisor
 
Hence, it is a fact that “Legal Costing is not Expenses but Assets”
 
One has to understand and realize that “LEGAL SPENDING IS ALWAYS EXPRESSED AS A PERCENTAGE OF THE BUSINESS REVENUE”.

Legal Expenses at an Early Stage can be Beneficial to You at Later Stages

Legal Expenses at an Early Stage can be Beneficial to You at Later Stages

The reason I have chosen this topic has been in my mind for many years now and in fact, I have around more than 100 legal case study to share which have always brought me to the question as to “why business entities don’t realize the value of Legal in their business” and when this was asked to those clients who are part of 100 legal case study the reply received was costs attached to Legal but the most important reply was “never thought that getting legal advice will be of any help” and further some of the states that they believed they could handle the issue better on their own without having legal background”. Hence, I thought of penning down my views to readers and business entities of “how to know the value of Legal in their business” or can say “Valuation Statistics in their Business”
 
Case Study No. 2
“A” purchased the Residential House worth “Rs. 28 Crores” at Bandra-Kurla for Flat No. A-24 and without even showing the documents to any Legal Attorney or else executed the Agreement for Sale and got the same Registered. Please note that this was “Under-Construction”. Thereafter, “A” decided to go with upper floors and requested the Builder to change in Flat from A-24 to A-48, and accordingly, the Builder then executed the Cancellation Deed and executed Agreement with Registration for Flat A-48. Before this Agreement for A-48 was done, “A” took the Loan for Flat No. A-24. It is pertinent to note that once the Agreement was signed and Registered for A-48, “A” got the surprise call stating of Flat A-48 being already allotted to the third party as barter system by Builder and then this matter went to court and even after three years there was no resolution and then “
 
A” approached us for legal advice. Upon asking why no legal advice was taken getting into this confusing agreement, “A” state of never thought off and now looking at huge loss of money and no flat. However, due to negotiation at our end and making the case strong to “A”, the matter got settled but “A” had to pay Rs. 7 Crores as Loan to Builder for paying the third party and now though the Flat is in possession with “A”, this deal has been a huge loss.
 
Calculating the Loss:
• Rs. 28 Crores was paid in the year 2017 and no Flat possession was received till the Year 2020
• Rs. 7 Crores additional paid to Builder as interest-free loan to get the possession of Flat
• Rs. 8 Lakhs towards Legal Costs
• Rs. 1.5 Crores to the Society for the Builder not paying the Dues for Flat A-48 and A-24
• Rs. 50 Lakhs as a reserve account
• And a concern all the way if any act of Builder is done in this deal
• Interest @ 15% on Rs. 28 Crores and other payments made
 
This all if could have done with prior Legal Advice, I am pretty much sure this could have not been the case but the habit of avoiding taking legal help out of any reasons are the main reasons for the monetary loss in any dealings.
 
What prior Legal Advice could have done?
• Reading the Builders Agreement for Flat A-24 and A•48
• Ensuring Clauses providing safety to “A”
• Ensuring proper Agreement is executed for Advance Loan to the builder of Rs. 7 Crores
• Ensuring proper documents be done for property purchase
• Take appropriate legal remedy to ensure property safe and secure and money too
 
The above factual story is a very common example of how to avoid spending small legal expenses; a proposed business deal ran into huge losses. One has to understand and realize that “LEGAL SPENDING IS ALWAYS EXPRESSED AS A PERCENTAGE OF THE BUSINESS REVENUE”.

Calculating the “Value Of Legal Expenses” in your Business in this way

Calculating the "Value Of Legal Expenses" in your Business in this way

The reason I have chosen this topic as it has been in my mind for many years now and in fact, I have around more than 100 legal case study to share which have always brought me to the question as to “why business entities don’t realize the value of Legal in their business” and when this was asked to those clients who are part of 100 legal case study the reply received was costs attached to Legal but the most important reply was “never thought that getting legal advice will be of any help” and further some of the states that they believed they could handle the issue better on their own without having legal background”. Hence, I thought of penning down my views to readers and business entities of “how to know the Value of Legal in their business” or can say “Valuation Statistics in their Business”
 
Case Study No. 1
In Year 2019, a referral Client approached our firm (Fireflies Legal LLP) for his business legal issues. During the meeting, it came to know that he is the business of renting out the computer devices and allied goods and there was a customer who was referred to him in networking club and since so, the client executed the order and supplied the order and total invoice generated was around Rs. 7 Lakhs. On questioning, as under, from our firm team end, following reply was received by Client:
 
• Any agreement executed = No
• Why no agreement executed = As someone trusted referred
• Any PO raised = No
• Why = Oral Order
• KYC of your customer = No
• Why no KYC = Never thought it will be required
• Any PDC = No
• Why no Security – trusted referred source
• Any email communication = No
• Any dispute raised by your customer = Yes
• What relevant dispute – Nothing but within 15 days raised
• Now What = no phone calls, no response and hence want to get legal for issuing notices
• Any prior legal advice = Never thought off
• Why never thought off = I heard that getting into legal actually kills business and also costs wise
 
One thing is clear from the above that our Client has been doing business purely on a trust basis and never gave importance to any legal advice or opinion. In fact, most of the Business Entities who does not give importance to the law aspect, look for free advice either on WhatsApp or online searches and if not, then under the shelter of relation approach for free advice but instead of doing so, better is to approach professional and get the work done and to know its value read how DREAM11 Owner have started their business and today it is more than 5000 crores business.
 
Due to this act of our Client, the only Legal Remedy left was and is to issue a legal notice and then wait for their reply which the customer never accepted as they shifted their place of business and now to approach court wherein the total costs will be around Rs. 85,000/- to Rs. 1,00,000/- for claiming recovery case. Upon knowing this, our Client stated that already Rs 7 Lakhs is pending and on that more Rs. 1 Lakhs will be a burden and that to Courts will take around 4 to 5 years, our Client decided to issue notice and wait and watch and post this compliance there was no update and the matter was closed with no further steps
 
Moral: To save small legal costs prior to executing the business deal with a customer, the Client now lost hope in getting the money of Rs. 7 Lakhs and a loss of Rs. 7 Lakhs in a turnover of 3 Crores is a huge loss
 
It is a fact that most of the Business Entities never give respect to “Legal Budget” or atleast getting Legal Advice on their business legal requirements and spending on legal costs and then they are ready to spend lakhs and lakhs on getting the recovery of their claims or else part.
 
What prior Legal Advice could have done? 
• Preparation of Agreement Template with Arbitration Clause
• KYC of Customers with Cross Cheque if no PDC
• Credit History of Customer
• Bank Guarantee, an option
• Invoice with Terms
• PO vetting with Terms
• Email Communication process
• When to trigger the Default Customer
• Getting urgent relief under Section 9 of Arbitration Laws
• How to secure money in the process
 
The above factual story is a very common example of how to avoid spending small legal expenses, a proposed business deal ran into huge losses. One has to understand and realize that “LEGAL SPENDING IS ALWAYS EXPRESSED AS A PERCENTAGE OF THE BUSINESS REVENUE”.

Justice Delayed is Blocking Economy and Growth: Why not 365 Working Days and 24×7 Working of Courts?

Justice Delayed is Blocking Economy and Growth: Why not 365 Working Days and 24x7 Working of Courts?

Court System sucks very badly and in fact the image of Courts especially Civil matters is almost more worse than bad and it is so bad that no one wants to get into legal system and even if they are true and honest, Courts system and its pattern make them run away from achieving the justice and this is where the whole Courts system, no doubt, has failed. It is said that it is better to acquit 100 guilty people rather than holding one honest person guilty as the whole purpose is to ensure an honest person is not convicted, but sadly the truth is far back in terms of reality. 
 
Why Laws?
The sole purpose of Law is that bind all people living in a community and also by way of providing framework and rules which helps in resolving disputes between individuals and in fact the Laws create a system where person/s can bring their disputes before an impartial fact-finder, such as a judge or jury. Laws protect and ensure rights as citizens against abuses by other people, by organizations, and by the government itself and this exist at the local, state and national levels and also at international levels
 
Why Courts?
If Laws are there then Courts act as platforms where disputes or cases are heard and determined and it does acts as a forum to resolve disputes and to test and enforce laws in a fair and rational manner. It can also be said that the Courts actually act as impartial forum, and judges are free to apply the law without regard to the states wishes or the weight of public opinion but in line with human rights as the Court’s decisions are based on what the law says and what the evidence proves and not on suspicion, bias or favouritism basis and this is the reasons as to why justice is often symbolised as a blindfolded figure balancing a set of scales, oblivious to anything that could detract from the pursuit of an outcome that is just and fair.
 
Why Cases Disposal takes time?
There is no doubt the lack of adequate numbers of judges and results being inadequate number of Courts are the main reasons. For ex., Vashi Court, as an example, is a huge jurisdiction, and has several police stations under its jurisdiction. For 25 odd police stations, there are 10 Magistrates. On a calculative basis, the average number of cases listed for trial before each Magistrate per working day might be around 60 cases. That makes 60 X 10 = 600 cases per day. Now, owing to paucity of time, even if the Magistrate sits the entire working day, he or she will be able to have a substantial hearing of not more than 30 cases per day, and even that may be affected if there are other duties that the Magistrate may have to perform, such as hearing bail matters. Thus, each day, about 50 or more cases are adjourned to a later date, adding to the existing backlog. If you count the number of production matters that come up each day and average it at about 80 or so per day, those are 50 new matters per day which have to eventually go to trial…and the same number of Magistrates who will have to share this burden. You understand how backlog starts building? And this is only in criminal cases too! There are places where the Civil Judge and the Judicial Magistrate is the same person owing to lack of manpower…in these districts the situation may be twice as bad!
 
Indian Court working days and hours:
The most common question being raised by the honest litigants is that what are the reasons that the Courts do not work for 365 days like other government bodies do. Well, no doubt will share my views on this later in this Article but as of now just want to clear the myth associated with the Central Government or State Government of working 365 days. To the best I am aware, except for the Police Department, no other government department works for 365 days in a year. 
 
For ex., in case of Central Government services, all Saturdays (52 days in a year) and all Sundays (52 days) are holidays and so, we can exclude these 104 days from the year thereby leaving 261 days to work. Now, in Delhi, for example, the Central Government has 17 holidays in the year for festivals and national days (such as 15 August, 26 January, Diwali, Holi, Id, Muharram, Christmas Day, etc.) which means that after deducting them, the available days left for working is 244 days which can be said as working days in Central Government in Delhi.
 
Now, in case of Metropolitan Magistrate Courts in Delhi, even they are closed for all Sundays (52 days) and only Second Saturdays every month (12 days) and since so, there are 301 days left in the Year and in this there will be a deduction of 24 closed holidays on account of festivals, etc thereby leaving with 277 working days. 
 
So, if one compares Metropolitan Magistrate working days with Central Government working days, Metropolitan Magistrate working days are higher (certain number of days here and there be taken into consideration but in no case lesser than Central Government)
 
However, it is factually true that a High Court usually works for only about 220 days in a year and The Supreme Court usually works for about 190 to 200 days in a year and these numbers keep changing a little from year to year. Hence, I am of the view that the number of vacation days in The Supreme Court and High Courts should be substantially reduced.
 
Let’s know about Strength of Judges
Out of 23000 judges in India, there are only about 1000 High Court judges and 31 Supreme Court judges. This means that about 95% of all judges in India are judges / magistrates in the District Courts and lower courts and out of 23000 judges, still 5500 judges seats are vacant. 
 
Pendency of Cases:
As per the Indian government figures, at the end of 31.08.2020, total pending cases is around more than 4.5 crores are as under:
●62000 = Supreme Court
●51.57 lakhs = High Courts
●3.45 crores = District Courts of India
 
So if one calculates, for 16500 Judges in the District Courts of India, there is a pendency of 3.45 crore cases, i.e. a total of 2000 cases on one single judge! The figures goes till 2000 cases per Supreme Court Judge and 5000 cases per High Court Judge! The pendency seems to be drastically high and time and again have Hon’ble Justices commented on it sharing their concerns. 
 
Justice V D Tulzapurkar of the Supreme Courts has observed 
“If an independent judiciary is regarded as the heart of a republic, then the Indian republic is at present suffering from serious heart ailment. In fact, the superior judiciary of the country has of late been under constant onslaughts, external as well as internal which are bound to cripple the health, welfare and progress of our body politic, as an ailing heart cannot ensure vigorous blood supply for the sound health of its people”
 
Former Chief Justice P N Bhagwati in his Law Day speech in 1985 said 
“I am pained to observe that the judicial system in the country is on the verge of collapse….. Our judicial system is crashing under the weight of arrears. It is trite saying that justice delayed is justice denied. We often utter this platitudinous phrase to express our indignation at the delay in disposal of cases but this indignation is only at an intellectual and superficial level. Those who are seeking justice in our own Courts have to wait patiently for years and years to get justice. They have to pass through the labyrinth of one Court to another until their patience gets exhausted and they give up hope in utter despair…. The only persons who benefit by the delay in our Courts are the dishonest who can with impunity avoid carrying out their legal obligations for years and each affluent person who obtains orders and stays or injunctions against Government and public authorities and then continues to enjoy the benefits of such stay or injunction for years, often at the cost of public interest”
 
Justice P.N. Bhagwati, in his Law Day speech in 1985 addressed the concerns about the judicial system and said that it is presently suffering from an ailment and is on the verge of collapse. So, not only the present generation, but also the past several generations have been suffering from the pace and inefficiencies of the adjudicating authority.
 
So what’s the solution? 
●Increase the number of Courts and judges so that an individual judge is not weighed down by several matters pending in his list. 
●Encourage people to settle disputes out of court
●Change the attitude of litigants. 
●Make Changes to avoid procedural delays, mainly by means of injunction and adjournment.
●To increase number of interlocutory applications filled after the disposal of main case.
●Avoid unnecessary long vacations in Court.
●Avoid laxity in Court work by police personnel and other agencies involved in investigation procedures.
●Lack of quality judges in lower judiciary, administrative glitches and allegations of corruption.
●Upgrade adequate infrastructure, courtrooms.
●Ensure proper implementation/functioning of Alternate Dispute resolution, Lok Adalat etc.
●Remove existing discrepancies in the legislature material i.e Codes, Act.
●Ensure no strike by lawyers
●Making various and possible changes in Judicial reforms to improve the judiciary system:
●Full utilization of court working hours
●Reduce vacation days of court.
●Cases filled on similar contentions and arguments, clubbed together with the help of technology and pass a priority judgement.
●More benches should be created to increase the number of judges.
●Decide a time frame for the oral arguments, unless it is a matter of constitutional interpretation.
●Proper functioning of fast track courts like Lok Adalat, legal aid.
●Removal of archaic and vague laws.
●Better training of judicial officers and judges.
●Effective, Transparent functioning of Bar Council of India.
●Effective management of lower judiciary by their respective high courts in order to curb corruption and nepotism.
 
365 Working Days and 24×7 Working of Courts
Justice Delayed is Justice Denied
This one thought forms the basis of the entire fundamental right of just and speedy trial as guaranteed under the Indian Constitution. But the question to be answered in these Covid times is whether the same fundamental right is being satisfied. Well, an expected answer would be that the Hon’ble Courts are trying their level best by working with limited staff and restrictive timings in order to achieve the goal of the aforementioned thought, but are their efforts enough? Or is there something else that can also be done. The answer is the working of Hon’ble Courts 24 hours a day and 7 days a week.
 
Since December 2018, till April 2021 there has been an increase of 23% in the number of pending cases just at the District Level (Source: National Judicial Data Grid). Such gruesome figures are actually 3.45 crore cases that have been pending due to the pandemic. The big task on the shoulders of our Indian Judiciary is to dispose them off with relatable ease and speed. One probable solution can also be to increase the number of courts but that becomes an expensive solution as a huge amount of capital would be required for construction, furniture, interior and all the other necessary cost for setting up a Court. So instead of doing this, why not to use the already present infrastructure but at a rate more than the current use i.e. Hon’ble Courts working for two shifts, one in the day and other in the night, a 24/7 working concept. 
 
With the addition of a 24 hours working concept one can easily work out a system where the court procedures can be bifurcated based on their lengthiness, procedure, presence of the client and the nature of the proceeding. It might take place like the arguments, cross-examination and submission of evidence can take place in the morning shift and the procedures like summons and submission of applications can take place in the night shift.
 
It’ll be a drastic change for sure, with the very core of functioning of Indian Judiciary being reformed, but it is the need of this hour. Such function will surely help in:
●Creation of opportunities in the legal practice as a separate set of advocates will be required for working for the other shift.
●It’ll reduce the burden on the Courts by allowing them to bifurcate the tiring and lengthy process and conduct the functioning smoothly.
●Suit the working schedule of the night owls who prefer working for late hours than in early morning.
●It’ll also help those civilians who are tired of spending their entire day in the court proceedings.
●Matters of trivial nature could be conducted in the both the shifts so that the case gets disposed off early.
●Better productivity by every single person working in the law courts as the case burden on each one of them would decrease
●Increasing the productivity of the economy as the long and tiring process of courts would now be resolved easily thereby allowing the relief as sought, in less time.
●Increased faith in the power of courts and its proceedings amongst the general public
 
Success is dependent on effort
Having discussed all these facts, figures, situations and suggestions, what really matters at the end is the effort. Effort to make the Indian Judiciary efficient enough to handle the massive numbers of cases it receives. Such efforts have to be made not only by the Bar but also by the Hon’ble Judges, the Advocates and every single person working in this fraternity. The success of this effort will be reflected when a layman would not think thrice before approaching the Hon’ble Courts to seek justice.