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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.

Procedure laid down under NI Act for trial of 138 cases and Supreme Courts directions

Procedure laid down under NI Act for trial of 138 cases and Supreme Courts directions

Indian Banks Association filed a PIL in Supreme court for issuance of directions to all courts in the country for mandatory compliance of Section 143 of Negotiable Instruments Act, 1881(Referred as NI Act) read with provisions of Section 261 -265 of Code of Criminal Procedure and for framing procedure to be followed uniformly by all courts for speedy and expeditious disposal of 138 cases. A bench consisting of Justices K S Radhakrishnan and Vikramjit Sen delivered a judgment in the said PIL giving directions to all criminal courts to follow summary trial procedure in 138 cases as mentioned in its judgment.
 
For better understanding of the procedure laid down by the Apex court, it is necessary to refresh the memory of the readers about the ingredients of offence u/s 138 of NI Act and procedure laid down for filing of complaints under the NI Act.
 
When an offence under the Act is deemed to have been committed?
An offence under the NI Act shall be deemed to have been committed, if the following conditions are satisfied (Section 138):
– Cheque must have been drawn by the drawer in favour of a payee on his bank account for payment of a legally enforceable debt either in full or partly
 
– Cheque must have been returned by the Banker to the payee or holder in due course due to insufficient balance in the account of the drawer or it exceeds the arrangement he had with the bank,
 
Proviso requires fulfillment following additional conditions
a. Cheque must be presented within its validity period.
 
b. Written Notice must be given demanding payment of the cheque amount within 15 days from the date of receipt of notice. Such notice must be issued within 30 days from the date of receipt of intimation of dishonour memo from bank and
 
c. drawer fails to pay dishonored cheque amount within 15 days from the date of receipt of the notice
 
When Cause of action arises?
Cause of action arises only on failure of the drawer to pay demanded sum within the notice period and on expiry of notice period.
 
What is the Procedure for filing a complaint?
Let us now see the procedure mandated by the NI, Act for filing a complaint for prosecution of the accused. Complaint u/s 138 of NI, Act has to be filed within 30 days from the date of cause of action i.e. not before expiry of notice period nor after 30 days from the date of cause of action. The Apex court in the case of MSR Leathers V S planniappan & Anr, reversed its earlier judgment in Sadanandan Bhadran v. Madhavan Sunil Kumara and held that a payee or holder of a cheque can now issue a statutory notice to the drawer each time the cheque is dishonoured on subsequent presentations and institute proceedings on the basis of a second or successive statutory notice as well. Thus there is a trend in recent judgments of Supreme Court in interpreting the law relating to Cheque bouncing cases more in favour of the complainant. Similarly other recent judgments expressed a view that strict interpretation should not help dishonest drawers of cheque.
 
Cognizance of offence:
Section 142 of Act starts with “Notwithstanding any thing contained in Code of Criminal Procedure, 1973” and mandates that no court shall take cognizance of the offence unless a complaint in writing is given by the payee or holder in due course as the case may be and such complaint has to be made within one month from the date of cause of action.
 
The effect of this non obstante clause is that NI Act overrides the provisions of CrPC to the extent as stated in the NI Act. This section also permits belated complaints filed after prescribed period provided the complainant satisfies the court with sufficient grounds for late filing.
 
Summary Trial:
Section 143 permits summary trial and it also starts with a non obstante clause. The contents can be summarized as follows:
 
a. It gives power to judicial magistrate of First class or a Metropolitan Magistrate to try 138 cases summarily.
 
b. It specifies that provisions of Section 262- 265 of CrPC shall apply, as far as may be, to summary trials. In other words discretion has been given to the Magistrate to apply or not to apply provisions of CrPC depending on the facts of the case. However in practice it is not exercised.
 
c. Trial shall be conducted from day to day until its conclusion, unless the Court finds justifiable reasons for the adjournment of the trial beyond the following day. Courts must record reasons in writing for adjourning to a later date. Further courts shall make an endeavor to conclude the trial within 6 months.
 
Mode of service of summons:
Section 144 deals with mode of service of summons on the accused. It specifies that:
a. Summons may be served at the place where the accused or witness ordinarily resides or carries on its business or personally works for gain.
 
b. Summons can be served by speed post or such courier service authorised by the court of sessions and in case of refusal/receipt by any authorized person, court may declare it is duly served.
 
Evidence on affidavit:
Section 145 provides that complainant can give evidence on affidavit. Even though the NI act specifically provides for this, some Magistrates mechanically follow strict compliance of the provisions of section 261- 265 of CrPC. This is one of the main causes for abnormal delay in completion of trial. The complainant is made to appear twice at the pre-summoning stage and post summoning stage for cross examination or re-examination which really does not serve any meaningful purpose in 138 cases but contributes to the delay in the conclusion of trial. It is the accused who takes the maximum benefit out of such procedural delays.
 
Supreme Court in “Indian Banks Association Vs Union of India”
After referring the objects of Section 138 of NI Act, Section 262- 265 of CrPC and its past judgments in Mandvi Cooperative Bank Limited v. Nimesh B. Thakore (2010) 3 SCC 83, and Radhey Shyam Garg v. Naresh KumarGupta (2009) 13 SCC 201 on interpretation of Section 145 of NI, Act, it has drawn the following conclusions at Para 16 of the judgment:
a. Evidence by way of an affidavit can be given and complainant is not required to examine himself twice i.e. once after filing the complaint and another time after summoning of the accused.
 
b. There is no necessity to recall and re- examine the complaint after summoning of accused, unless the Magistrate passes a specific order as to why the complainant is to be recalled.
 
c. In summary trial, after the accused is summoned, his plea is to be recorded under Section 263(g) Cr.P.C. and his examination, if any, can be done by a Magistrate and a finding can be given by the Court under Section 263(h) Cr.P.C. and the same procedure can be followed by a Magistrate for offence of dishonour of cheque since offence under Section 138 of the Act is a document based offence.
 
Procedure framed by the Supreme Court:
The Apex Court appreciating the efforts of Bombay and Kolkata high courts for speedy disposal of 138 cases, finally laid down the following procedure to be observed by all criminal courts in the country for speedy and expeditious disposal of 138 cases. The essence of these procedures can be summarized as follows:
a. Metropolitan Magistrate/Judicial Magistrate e (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint. If the complaint is accompanied by the affidavit and the documents are found in order, must take cognizance of the offence and direct issuance of summons on the same day.
 
b. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date is fixed. If the summons is received back un-served, immediate follow up action be taken.
 
c. Court may indicate in the summon itself that if the accused makes an application for compounding of offences at the first hearing of the case, it may pass appropriate orders at the earliest.
 
d. Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial. On the day of appearance, Court may ask him to take notice under Section 251Cr.P.C to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for re- calling a witness for cross-examination.
 
e. The Court concerned must ensure that examination-in-chief, cross- examination and re-examination of the complainant are conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court.

Non-Compete Agreement = Known its Importance and Restrictions

Non-Compete Agreement = Known its Importance and Restrictions

A lot of cases have been heard where an employee left his job and took all the important information of the office with him and after a few days Employer found out that his ex-Employee has started his own business. Going forward, employer realizes that his employee has turned his clients towards himself (Employee).
 
Now, you may be wondering why the employer is not taking action against his employee for act done by him? I have a counter question against your question that if you want to take action against an employee, on what basis you will take action? Do you have any strong evidence which will help to take action against the employee?
 
Did you have any agreement with the employee when you appoint him at your workplace? Even if you had made agreement with the employee at the time of his appointment, was there a non-competitive clause in it? Or was there any separate agreement which is called as “Non-Compete Agreement”
 
Let’s Understand the Non-Compete Agreement concept and why it is important as any other agreement which is required while dealing with business activities.
 
The Non-Complete Agreement are that agreement where the Employees are enter into a contract with an employer may agree to neither compete with the employer nor join a competitor during their term of the employment and/or a period after and also agree for will not share the secrets, Know-How and other confidential information of the organisation with the rival company during the employment or after the employment period over.
 
Most of the time we have seen that the employees were took a specific training in the some organisation after joining the organisation and resigned the said job before the employment period has over and join the rival organisation only for getting the higher salary. We have also seen that employee use the technics and share the confidential information of ex-organisation with the rival organisation. Therefore the Ex-Organisation may suffer huge loss in the market. Hence, to avoid the consequences in the future the employer should have to make the Non-Compete Agreement with the employee at the time of joining the organisation by the employee.
 
Now the question arise about is it valid in the eyes of law? Because Non-Compete Agreements are seems like it is against Public interest and it is violet the right of the person who want to start his individual business after he/she resigned the organisation or want to join rival organisation.
 
Yes I agree. It is violet the rights of the individual who want to start his business or want to join the rival business but at the same time we also have to consider the situation of employment, fairness to both parties and Protection of employer and right of employee.
 
Section 27 of the Contract Act, 1872 states that every agreement by which anyone is restrained from exercising a lawful profession or trade or business of any kind, is to that extent void. But further also restraint the person from doing the business only when it meet the conditions to be considered as an exceptions to the section 27 of the Indian contract Act, 1872. Courts are also taking into consideration and assess the various cases of the Non-Compete Agreement on the basis of their reasonableness, nature and relation of the parties in the organisation.
 
The legal position of the Non-Compete Agreement in India in accordance with the Indian Contract Act, 1872, is that the provisions of restriction imposed on employees during employment are reasonable but restriction imposed after employment period over is void. Hence, Non-Compete Agreements are always useful and in favor of the employer when the employee resigned the job before the completion of tenure of the employment. In the case of Niranjan Shankar Golikari v. The Century Spinning And Mfg. Company in the 1976, it was held by the court that non-compete clauses are not to be considered as ‘restraint of trade’ if they operate during the time period of employment. This was largely due to the apprehension of the employer of the possibility of the employee disclosing confidential information throughout the time of employment. It was held to be valid.
 
Points should be cover to validate the Non-Compete Agreements
The following point must be cover to validate the Non-Compete Agreement or to impose restriction on the employee:
 
A. Time period: Means while making the Non-Compete Agreement the employer have to specified time period. During that time period the employee cannot start the same business after his resignation from the organisation. The time period may be for the one period or which is decided between employer and employee.
 
B. Confidential information or secrets: the employee cannot share the confidential information or trade secrets with the rival organisation or any other person during the employment or after the employment period has over.
 
C. Distance: if the Employee wants to start the business after his resignation from the ex-organisation then he cannot start the business within specified territory which is decided by the employer to protect his business/ organisation.
 
D. Work With rival Organisation: Once the Employee give his resignation from the organisation he is free to join any other organisation but what happened if the employee join the rival organisation, there is chances of reveal the secrets of the Ex-organisation and leak confidential information of the Ex-Organisation and ex-organisation can suffer the huge lose so to prevent the same or to protect the goodwill, the employer can restrict the employee from joining of the rival organisation.
 
Importance of the Non-Compete Agreement
  • Protect the confidential information and secret data of the company
  • Protect the unfair competition
  • Protect the Good will of the organisation
  • Prevent from the huge lose which can suffer by the employer due to employee.
  • It can also help to retain the employee if you put the clause of employee cannot join the rival organisation. Employee may be think hat it is better not to leave the organisation.
  • Helps to take legal action against the employee if the employer has suffered any loss due to any wrong action taken by the employee.
We will always recommend to the company./organisation take a best advice and draft the Non-Compete agreement from the lawyer who are dealing with the matter of business. So in future you will not face any problems regarding the Non-compete Agreement. It is necessary to draft the Non-Compete Agreement after considering the all fact which is related to public interest, protection of right of employee and employee in the employment.

Bail, Meaning And Factors

Bail, Meaning And Factors

Justice V. R. Krishna Iyer: ‘judges should be more inclined towards bail and not jail’
 
Bail is a kind of security which is given by the accused to the court that he will attend the proceedings against the accusation made upon him. The primary objective of arrest to the accused is to ensure that the accused in a criminal case appears before the court for the conveyance of justice. However, if the person’s presence can be guaranteed for the court trial without putting the person in a jail, it would unfair and unjust to violate a person’s liberty. Thus, bail can be granted as conditional liberty to the accused. In the matter of Sanjay Chandra vs. CBI (AIR 2012 SC) held that the principal purpose of bail is to ensure that the accused person will return for trial if he is released after arrest.
 
In the matter of State of Rajasthan vs. Bal Chand (AIR 1977 SC 224) held that the provision of bail restores the liberty of the arrested person without jeopardizing the object of the arrest. The general rule of bail is not jail
 
The procedure of Bail is provided under Section 436 in the Criminal Proceeding Code. Bail has not been defined in the Criminal Proceeding code although the offences are classified as bailable and Non-Bailable.
 
What is a Bailable offence and Non-Bailable offence?
In a simple word:
 
 Bailable offence means a Non Cognizable offence (अदखलपात्र गुन्हा) which is punishable with imprisonment for less than 3 years.
 
 Non Bailable offence means cognizable offence (दखलपात्र गुन्हा) which is punishable with imprisonment for more than 3 years.
 
Factor Consider at the time grant or denial of Bail Application in Non-Bailable offence.
 
At the time of grant or denial of Bail Application in respect of Non Bailable offence, the primary consideration is the nature and gravity of the offence. While passing the order on bail applications, the Court cannot go into the question of credibility and reliability of the witness which is put up by the prosecution. These factors only tested during the trial of the matter. The Hon’ble Supreme Court in the matter of State of Maharashtra vs. Sitaram Popat Vital has stated few factors to be taken into consideration, before granting bail, namely:
 
1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
3. Prima facie satisfaction of the Court in support of the charge.
 
Other factors considered by the Court at the time of granting the Bail
1. Whether there is or is not a reasonable ground for believing that the accused has committed the offence alleged against him.
2. The nature and gravity of the offence.
3. The severity of the punishment which might fall in the particular circumstances in case of a conviction.
4. The likelihood of the Accused absconding, if released on bail.
5. The character, means, standing and status of the Accused.
6. The likelihood of the offence being continued or repeated on the assumption.
7. That the accused is guilty of having committed that offence in the past.
8. The likelihood of the witnesses being tampered with.
9. The opportunity of the Accused to prepare his defence on merits.
10. Previous conduct and behaviour of the accused in the Court,
11. The period of detention of the accused
12. Health, age and sex of the accused
 
The Hon’ble Supreme Court in the matter of Prahlad Singh Bhati vs. N.C.T. Delhi and Others, has held that, “the condition of not releasing the person on bail charged with an offence punishable with death or imprisonment for life shall not be applicable if such person is under the age of 16 years or is a woman or is sick or infirm, subject to such conditions as may be imposed.”
 
Anticipatory Bail
In case a person is of the apprehension that he might be arrested on the accusation of a non-Bailable offence, he can apply to the High Court or Court of Session for Bail.
 
Conditions for granting Anticipatory Bail
1. Make himself (Accused) available for interrogation by a police officer as and when required.
2. Not make any inducement, threat or promise to any person so as to prohibit him from disclosing any material facts to the Court or any Police officer.
3. Not leave India without prior permission of the Court.
 
Grounds for Cancellation of Bail by the Court
As the court has the power to grant bail, the same way the court has the power to cancel the bail. On following grounds Court can cancel the Bail:
1. Accused Misused Liberty
2. Interfere with the course of the investigation
3. Attempt to tamper with evidence
4. Threaten witnesses
5. Try to shift in another Country
6. Attempt to make himself scary by going underground grave offence
 
In the case of Dolat Ram vs. State of Haryana (1995), the Supreme Court held that in this case the following situations as supervening factors that may justify the cancellation of the bail:
 
1. Interference or attempt to interfere with the due course of administration of justice;
2. Evasion or attempt to evade the due course of justice;
3. Abuse of the concession granted to the accused;
4. Possibility of the accused absconding;
5. Likelihood of/actual misuse of bail.
6. Likelihood of the accused tampering with the evidence or threatening witnesses;
7. Other supervening circumstances, which have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by being on bail.

Litigant cannot blame lawyer for losing case

Litigant cannot blame lawyer for losing case

There is a rising tendency on the part of litigants who lose their cases to blame their own advocates, hoping to earn sympathy of the appellate court. Such sympathy used to be granted, as a litigant should not suffer for the fault of an advocate. The ploy was successful till judges realized how it was being misused. The national commission, in its decision on November 11 last year came down heavily on a litigant and penalized him for making wild allegations against his advocate.
 
Case Study:
Noor Isam Mondal purchased a gold testing machine from Anklist Exim Inc. A payment of Rs 13,72,750 was made by availing a loan under the Prime Minister’s Employment Generation Programme 2010-2011. Mondal found that the machine did not give the right gold clarity reading. Though he asked the manufacturer to remove the defects, the company did not respond. Ultimately, he sent a legal notice, through his advocate, demanding that the defect be removed, but no heed was paid even then. So, Mondal filed a complaint before the Hooghly district forum, but it was rejected due to lack of territorial jurisdiction. The complaint was then filed before the Howrah district forum.
 
The manufacturer contested, pointing out inconsistencies in the notice and complaint. While the notice stated Mondal had not received the machine, the complaint said the machine had been received but was not working properly. The firm argued that the complaint was false and vexatious and ought to be dismissed.
 
The forum directed the company to replace the defective machine with a new one having the same model number and specifications, along with a six-month guarantee, or alternatively refund the entire amount of Rs 13,72,750. The company was also ordered to pay a compensation of Rs 50,000, of which half should be paid to Mondal and the balance to the Consumer Welfare Fund. Additionally, costs of Rs 5,000 were also granted. In appeal, the West Bengal state commission modified the order by holding that the entire compensation of Rs 50,000/ should be paid to Mondal.
 
Mondal filed a revision before the national commission, as he was not satisfied with the compensation and wanted a refund of Rs 13,72,750. Mondal blamed his earlier lawyer for having made false statements before the state commission, resulting in conflicting statements. The commission observed that Mondal had admitted in the complaint the machine had been received by him on March 22, 2011. Yet in the subsequent notice of May 18, 2011, he said the machine had not been delivered. These averments were contradictory. If the lawyer was at fault, appropriate action ought to have been taken against him. But without doing so, it would not be right to blame the lawyer. The commission concluded that such an allegation is an after-thought, and not acceptable.
 
The national commission observed that Mondal was trying to mislead the consumer fora. It held that any litigant who makes false assertions is not entitled to any equitable relief, and such a complaint must be rejected at the threshold.
 
By its November, 2014, order, delivered by Justice V B Gupta along with member Suresh Chandra, the commission dismissed the complaint, directing Mondal to pay punitive damages of Rs 50,000 to legal aid.