FAQ’s on Consumer Court

FAQ's on Consumer Court

Who is Consumer under Consumer Protection Act?

A Consumer is a person who purchases a product or avails a service for a consideration, either for his personal use or to earn his livelihood by means of self-employment. The consideration may be:

  • Paid
  • Promised
  • Partly paid and partly promised.
Who is not consumer?

A person is not a consumer if he/she:

  • Purchase any goods for resale or for any commercial purposes.
  • purchases any goods or avails any service free of charge;
  • Purchases a good or hires a service for commercial purpose
Who can made Consumer Case under Consumer Protection Act?

A consumer as defined under Consumer Protection Act, 1986

  • Any voluntary consumer association;
  • Central Government or any State Government;
  • One or more consumers, where there are numerous consumers having same interest
  • In case of death of a consumer, his legal heir or representative.
Where to file a Complaint?
  • District Consumer Forum: for a claim of Compensation up to Rs.20 lakhs
  • State Commission: for a claim of Compensation above Rs.20 lakhs and up to Rs.1 crore
  • National Commission: for a claim of Compensation above Rs.1 crore
When the complaints can be made?
  • the article purchased by a consumer is defective
  • the services availed of by a consumer suffer from any deficiency
  • When the price paid by a consumer is in excess of the price displayed on the goods or when the price is in excess of the price fixed under any law in force
  • Goods, which will be hazardous to life and safety, when used, are being offered for sale to the public in contravention of the provisions of any law.
How to register the complaints?
  • The complaint can be filed on a plain paper
  • Stamp paper is not required for declaration
  • Complaint can be registered, in person, by the complainant or through his authorized agent or by post addressed to the Redressal Agency
  • The fees charged are very nominal according to the value of the claim
  • It should contain the details of the complainant and the opposite party
Is there any time limit for file a consumer complaint?

Complaint can be registered within 2 years from the date on which the cause of action has arisen

What are the reliefs provided under the Consumer Protection Act?

To remove the defects in the goods pointed out.

To replace the goods.

To return to the complainant the price of the goods

To pay such amount of compensation for the loss or injury suffered by the consumer.

To remove the defects or deficiency in the services.

To discontinue the unfair trade practice or not to repeat it.

To withdraw the hazardous goods from being offered for sale.

To provide the cost of expenditure incurred by the complainant

What is Unfair Trade Practice?
An “unfair trade practice” means a trade practice, which, for the purpose of promoting any sale, use or supply of any goods or services, adopts unfair method, or unfair or deceptive practice.
Do you know?
  • “Goods once sold will not be taken back” or
  • “No exchange”, or
  • “No refund under any circumstances”
It amounts to Unfair Trade Practice and does not carry any legal weight.
What is Restrictive Trade Practice?

Manipulation of price or conditions of delivery or to affect flow of supplies in the market relating to goods or services in such a manner as to impose on the consumers unjustified costs or restrictions

What are goods?

“Goods” means every kind of movable property other than actionable claims and money, and includes stock and shares, growing crops, grass and things attached to or forming part of the land, which are agreed to be severed before sale or under the contract of the sale.

What are services?

Service” means service of any description which is made available to potential users and include, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal services.

FAQ’s on Business Lawyer

FAQ’s on Business Lawyer

Why does a Business need a Commercial Lawyer?

A Commercial Lawyer assists with the legal aspects of running a business and provides expert advice on all your legal issues and infact it also helps in updating you of any commercial legal compliance in all aspects.

The reason why one must shall take the assistance of the Commercial Lawyer is as under:
1] Setting up a Business Entity
2] Reviewing a Founders Agreement / Shareholders Agreement / Co-Founders Agreement
3] Purchasing or selling a business
4] Purchasing, leasing or selling of any property
5] Legal issues for Online Businesses
What is the best Business Entity for You?
Once you have a Business Idea and Business Plan, the next step is to pick a business entity structure. There are many different types of businesses available to owners, and choosing the right one depends on the number of individuals, if any, who will co-own the business with you, your tax preferences, and any liability concerns. This is where the assistance of experience accountant and commercial lawyer comes into picture
Following are the types of Business Entity:
• Sole Proprietorship Firm
• Partnership Firm
• Limited Liability Partnership
• Private Limited Company
• Public Limited Company (Unlisted)
• Public Limited Company (Listed)
• One Person Company (Pvt) Ltd
• Association of Persons (AOP)
• Body of Individuals (BOI)
How do I start my own business?
Starting your own business can be a risky affair specially in today’s time and it requires careful thought and preparation and infact it is suggested of taking guidance and or opinion from all seniors or you feel mentors who has this experience for starting their own business. Being your own business owner, however, can also lead to a great deal of personal satisfaction and success.
Once you have determined an initial idea for your business, it is important to thoroughly evaluate the market in which you will be operating and determine how you can best contribute through your original or innovative business idea.
Once your original or innovative business idea is ready then the next steps comes of preparing the comprehensive business plan which will take care of your business structures, it’s operational set-up, how you will market, and what your expenses and revenue, etc. This will help you to evaluate whether you can be financially successful and also will allow you to attract potential investors or apply for loans.
What exactly is Business Law?

Business law main purpose is to ensure fairness and protection of the Parties entering into any contract

When dealing with anything that falls under ‘business law,’ is it important to have an attorney?

Yes, for the reasons that the Business attorneys know the in depth details of business laws aspects.

How much does Arbitration cost?

There is difference of fee and costs in terms of Arbitration proceedings in Ad-hoc Arbitration and Institutional Arbitration. Ad-hoc Arbitration costs includes venue costs, food costs, steno costs and of course Arbitrator fees. The fee towards an Arbitrator has been defined and is taken care by the same but the Arbitrator fees can also be decided mutually between the Parties and the Arbitrator. In Institutional Arbitration, the best part is that their costs are covered in all aspects and the costs are very less compared to Ad-hoc arbitration.

Is it important to consult a business law attorney for the starting of a new business?

Yes, it is.

FAQ’s on Property

FAQ’s on Property

What is property?
The word “property” has been derived from a Latin word “properietate” which means a thing that is owned. The term property has been defined in numerous legislative acts according to their uses and requirements, and thus there is no uniform definition of property. In a general sense, property means any tangible or intangible thing of which one has ownership rights. Thus, a property includes money, land, virtual entity, profits arising from a land, etc. The basic idea behind the concept of property is to show some control of an individual (can also be a company) over a particular thing.
The term property has been defined in various acts such as:
1] Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 defines property as: “Property” means property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property.
2] Section 2(11) of the Sale of Good Act,1930 defines property as:
“Property” means general property in goods, and not merely a special property.
What are the various laws related to property?
Following are the various laws related to property:
A] Transfer of Property Act, 1882: this is a central act which provides for general principles of immovable property such as their sale, exchange, gift, lease, mortgage etc. This act also lists who can transfer and what is transferable under the scope of this act.
B] The Indian Easements Act, 1882: this is a central act which provides for general principles of easementary rights of immovable property.
C] Registration Act, 1908: the act regulates the procedure and lists the documents required for registration of the movable and immovable property.
D] Indian Stamp Act 1889: This Act imposes obligation to pay stamp duty on certain and precise documents. Indian Stamp Act acts as fiscal legislation.
E] The Real Estate (Regulation and Development) Act, 2016 (RERA): this is a central act which list out various regulations for the real estate sector for its development and promotion.
F] Specific Relief Act, 1963: this act provides methods of recovery of possession of movable and immovable property.
What is movable and immovable property?
In simple words, movable property means a property which can be moved from one place to another. Just like property, movable property has not been defined clearly in any act.
Section 3(36) of the General Clauses Act defines movable property as: “Movable Property shall mean property of every description, except immovable property’’
Section 2(9) of the Registration Act, 1908 defines Movable property as: “Movable Property includes standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property”.
Section 22 of the Indian Penal Code, 1860 defines movable property as: “The words Movable property are intended to include corporeal property of every description, except, land and things attached to the earth or permanently fastened to anything, which is attached to the earth”.
The term “immovable property” has been defined in various central acts, but none of those acts categorically define the term. The most important act which deals with immovable property i.e Transfer of Property Act, 1882 has defined Immovable property as: “immoveable property” does not include standing timber, growing crops or grass; “instrument”, means a non-testamentary instrument.
Section 3(26) of the general clauses act, 1897 defines immovable property as: “immovable property” shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth. Similarly, Section 2(6) of the Indian Registration Act, 1908 defines the term immovable Property as: “Immovable Property” includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass.
The supreme court of India has held- A right to collect rent, life interest in the income of the immovable property, right of way, a ferry, fishery, a lease of land as “immovable property”.
On combining the various acts and supreme court judgements, immovable property also includes- Land as well as benefits arising out of the land and things that are attached/rooted in the earth. Things which can be extracted from the earth or can be detached from the earth are considered as movable property and not immovable property. Thus, wild crops, plants, trees, grass etc are considered as immovable till they are attached to the ground. Once they are removed, they become movable property.
To sum up, it would be safe to say that a property which cannot be moved from one place to another is immovable property.
What can be registered?
Section 17 of the Indian Registration Act,1908 provides for mandatory registration of certain documents. They are-
a) Instruments of gift of immovable property;
b) Non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property. This means that all transactions that involve the sale of an immovable property for a value exceeding Rs 100, must be registered;
c) Leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
d) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882.
The Act also provides for documents of which registration is optional (Section 18). They are-
• Adoption Deed
• Instrument relating to shares in joint stock company
• Debentures issued by joint stock company
• Will
• Lease of immovable property not exceeding 1 year
• Document of a past transaction
• Power of Attorney with respect to movable property
• Decree or order of court comprising an immovable property valued below Rs. 100
• Certificate of Sale granted
• Agreement of Mortgage
• Promissory note
• Instrument of partition by Revenue Officer
• Grant of immovable property by Government
When can one register documents? That is stated in Section 23 of The Registration Act, 1908, all documents except a ‘Will’ have to be presented for registration within 4 months from the date of execution. If a document is executed by several persons at different times then that document has to be presented for registration and re-registration within 4 months from the date of each execution.
Intellectual property can also be registered but that is governed under various IPR laws such as Patents Act, 1970; Indian Trademarks Act, 1999; Indian Copyright Act, 1957 and more. However, such registration is not mandatory.
What are various types of transfer of property? What is its feature and uses?
Transfer of property means an act by which a living person conveys property, in present or in future, to one or more than one living persons, or to himself. The phrase “to transfer property” means to perform such act. According to the Transfer of Property Act, 1882, there are mainly six types of transfers. They are-
• Sale (Section 54): “Sale” is a transfer of ownership in exchange for a price paid or promised or partly paid or partly promised. Thus, a sale involves transfer of ownership and some monetary consideration for the same. It is to note that this section only deals with the sale of immovable property. Section 54 also lays down how a sale shall be made. In the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, it can be made only by a registered instrument. If the tangible immoveable property is less than a value of one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Registration of sale deed- Section 17 of the Indian Registration Act, 1908 has made it mandatory to get the registration done for the documents related to sale, purchase, transfer or ease of property. Law doesn’t recognize the unregistered properties and no legal remedies are available for unregistered properties in case of any default.
• Mortgage (Section 58): A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.
There are six different types of mortgage defined in the Transfer of Property Act. They are-
a) Simple Mortgage: Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage. This type of mortgage can be seen when people apply for loans in a bank against some mortgage.
b) Mortgage by Conditional Sale: In a mortgage by conditional sale the mortgagor sells the mortgaged property to the mortgagee on a condition that if the mortgagor fails to pay the mortgage money on a certain date then the sale shall become absolute. But, if the payment is made by the terms agreed, then the sale shall become void. This is a type of mortgage where there is an ostensible sale which gets converted into an absolute sale if the ostensible seller is unable to repay the loan.
c) Usufructuary mortgage: the mortgagor delivers possession of the mortgaged property whether expressly or impliedly to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and also authorizes him to receive the rents and profits accruing from the property in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest or partly on the payment of the mortgage-money, the transaction is called an usufructuary mortgage.
d) English mortgage: Where the mortgagor binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.
e) Mortgage by deposit of title-deeds: where a person who live in Calcutta, Madras, Bombay or in any other town as specified by the government, delivers to a creditor or his agent documents of title to immoveable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.
f) Anomalous mortgage: A mortgage which is not a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of section 54 of the act is called an anomalous mortgage.
Registration of mortgage- registration of agreement of mortgage is optional. It is not mandatory to register the agreement of mortgage.
• Lease (Section 105): A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Lease is not the transfer of ownership, but is a transfer of possession for a specified period of time. Lease can only be of an immovable property and not movable. For example- X allows Z to use his apartment for living for a time period of 1 year and 5 months against a monetary consideration of 20,000 per month payable by Z to X. This agreement is a lease.
How is a lease made- A lease of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
Registration of a lease- it is mandatory to register leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent. It is not mandatory to register a lease deed which is less than one year.
• Exchange (Section 118): When two persons mutually transfer the ownership of one thing for the ownership of another neither thing or both things being money only, the transaction is called an “exchange”. A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale. Thus, an exchange is the same as sale but it differs in consideration. It is to note that exchange is not limited just to immovable property. This is a classic example of barter system. For example- X transfers his apartment worth Rs. 1,00,000 to Z. Z in exchange of that property, transfers his land worth Rs. 95,000 plus 5,000 cash, this mutual exchange of ownership is called exchange.
Registration of deed of exchange: according to section 23 of The Registration Act, 1908, all documents except a ‘Will’ have to be presented for registration within 4 months from the date of execution. Hence, it is mandatory to register a deed of exchange if the value of the immovable property exceeds the value of Rs. 100. For movable property, the registration is optional.
• Gift (Section 122): “Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the done.
Registration of gift of immovable property- As mentioned above, gift can be of immovable as well as movable property. However, in the case of immovable property it is mandatory to register the instrument of the gift deed. Two witnesses have to be present during registration at the sub-registrar’s office to attest the deed. Once the registration process is complete, transfer of title can be made. Stamp duty of recommended value has to be paid for registration of Gift Deed. The Stamp duty charges differ from state to state and is also based on gender. Few states offer a concession in stamp duty if the property is gifted to family member.
Registration of gift of movable property- Registration of gift deed for movable property is optional. Thus, a simple letter drafted by the donor describing the gift deed and an acceptance letter by the done would be sufficient to make the transfer of movable property valid. The Gift of movable property can be made by a registered deed or by mere delivery of the property.
Time limit for registration of a gift deed- a gift deed has to be presented for registration within 4 months from the date of execution. If a gift deed is executed by several persons at different times then that document has to be presented for registration and re-registration within 4 months from the date of each execution.
Gift to minors- a minor can accept a gift; however, the legal guardian would be in control of the gift until the minor attains the age of 18. It is to note that a minor cannot be a donor i.e a minor cannot gift a property to anyone.

FAQ’s on Employee Agreements

FAQ's on Employee Agreements

What is Employment Agreement?

An employee agreement is the traditional document used in relationships between employees and employers for the purpose of laying out the rights, responsibilities, and obligations of both parties during the employment period. Given its purpose, an employee agreement can be one of those vital documents utilized by an employer. Also referred to as employment contracts, they are often executed for a specified period of time.

The Employment Agreement may include the following information:
• Compensation
• Job duties and descriptions
• Vacation time
• Confidentiality duties
• Probationary periods
• Termination procedures
• Details about employee and employer
Why execution of Employment Agreement is necessary?

An employment contract sets the terms of the relationship between the employee and the employer. If an employer decides to have an employee sign a contract, it should include the job description, the duration of the job, benefits, grounds for termination, protection against company secrets, ownership to an employee’s work products, and limitations for the employee to compete with the company once he or she leaves.

What are the advantages of execution of Employment Agreement?

• Control the employee’s ability to leave the business
• Prevents the employee from competing against the company
• Prevents the employee from revealing company secrets
• Gives the employer more control over the employee

What is the difference between Employees and Independent Contractors?

In addition to employees, your business may engage independent contractors to handle certain tasks. Determining who is an employee and who is an independent contractor is not always as easy as it sounds. Moreover, misclassifying an independent contractor as an employee can have grave repercussions for your business. You may need to pay taxes, interest, and penalties to Government even if the misclassification was inadvertent. Independent contractors retain control over how their work is done and usually run their own separate business. They might include painters, lawyers, IT consultants, and other people in specialized fields whom you might not need to keep permanently on your staff but only retain from time to time. The main test for determining whether an individual is an independent contractor or an employee is the amount of control that the employer has over the individual. If the employer can only control the result of the work, such as the ultimate article that is created, the individual is probably an independent contractor. Conversely, employers are more likely to have behavioral control and financial control over individuals who are employees. This means that they can control the method by which the employee works, such as setting office hours or requiring a worker to use certain equipment. They also control the financial nature of the work, such as how a worker is reimbursed or whether they are allowed to seek outside competing business opportunities.

Do I need an employee handbook?

No matter how small your business, it can be a good idea to have an employee handbook. A document of this nature can clearly establish rules, rights, and expectations for employees. Having these policies memorialized can increase efficiency, and also serve to protect you from litigation. Keep in mind that employee handbooks should be worded carefully, as a badly drafted policy can expose you to legal liability. For example, employee handbooks can be construed as employment contracts in some states (even if you don't intend to establish an employment or contractual relationship), and this can provide the basis for a number of legal claims against you. It is a good idea to regularly review and update your employee handbook to ensure compliance with current employment laws.

FAQ’s on Commercial Contracts

FAQ's on Commercial Contracts

What is Force Majeure clause in Contract?
A Force Majeure clause (French for "superior force") is a contract provision that allows a party to suspend or terminate the performance of its obligations when certain circumstances beyond their control arise, making performance inadvisable, commercially impracticable, illegal, or impossible. The provision may state that the contract is temporarily suspended, or that it is terminated if the event of force majeure continues for a prescribed period of time.
The list of events to be included is a matter of negotiation between the parties. A typical list of force majeure events might include war, riots, fire, flood, hurricane, typhoon, earthquake, lightning, explosion, strikes, lockouts, slowdowns, prolonged shortage of energy supplies, and acts of state or governmental action prohibiting or impeding any party from performing its respective obligations under the contract. So if, for example, a hurricane occurred that shut down a port, the seller planning to ship its goods through that port would not be liable for late delivery of the goods.
As such, the following elements should be addressed in a force majeure clause:
• Definition of force majeure events
• What happens when an event occurs
• Who can suspend performance; and
• What happens if the force majeure event continues for more than a specified period of time
Why the Force Majeure Clause is important in Contract?

The phrase force majeure literally translates as a “greater force.” This clause should always be included in commercial contracts, as it can protect parties from circumstances that arise that are beyond anyone’s control. For example, in the event of a natural catastrophe, such as an earthquake or hurricane, a shipment schedule may be unavoidably disrupted. In general, the definition of force majeure is rather broad, with many contracts including wording about things like terrorist attacks and even acts of God. This clause is important to include to ensure that any failure to perform due to such an unforeseeable disruption is not considered a breach.

What is the importance of Business Contracting?

• Provides proof of what was agreed between you and the other party
• Helps to prevent future misunderstandings or disputes by making the agreement clear from the beginning
• Gives you security and peace of mind by having the terms of the agreement down on paper which the terms do not change
• Reduce the risk of a dispute regarding payments, responsibilities, and timeframes that the service to be performed under the contract
• Sets how disputes will be resolved
• Specifies how either party can end the contract before the work is completed
• It’s key for both parties to have a valid and enforceable contract in case the contract needs to be enforced in court

What is the importance of Legal Audit?

• Legal Audit reduces the risk of a company getting penalized, prosecuted or barred due to any drawback in the documents, policies or operations. It will give an insight into how much a company is following the company laws set by the government and is it safe from any legal allegation.
• It helps the company to revise the records, licenses, registrations so that the company escapes from the risks of inaccuracy in the documents, helps claim compensations (if any).
• Let the company become aware of the changing laws of the government related to land acquisition, documents, employee management and lot more.
• Legal Audit is also beneficial when it comes to clearing the dues of the borrowers. The audit helps in clearing the dues without any visit to court.
• A legal audit is important because legal audit a review of the internal legal and administrative structure of business, how this operates and inter-connects with the external environment surrounding the company or firm.
• Several issues of employees related to legal compliance can be sorted, monetary grants for overtime, compensation claims, reimbursements, unfair labor practices, salary issues and lot more.
• Eliminates other issues related to Wills, Trusts, payment of compensations, legal proceedings in case of death, divorce, cancellation of partnership in the company, winding up of company and lot more.
• The process of going through a legal audit isn't easy, but the risks associated with avoiding the issue are too high for any company to bear. Doing so is not only necessary, but beneficial. It is the entrepreneurial company's reality check.

How the Legal Audit reduces the time & cost of litigation?

One of the Prominent reason for conducting Legal Audit is that it saves the company from getting fined, sued or prosecuted due to non-adherence of government law. Hence litigation cost of the company can saved. A Company hereby comes to know that what all laws of government it is violating unknowingly. Legal Audit directly/indirectly eliminates the chance of legal actions taken by the government due to deficiencies in the documents, undertakings or laws followed by the companies.

What is NDA (Non-Discloser Agreement)?

A contract by which one or more parties agree not to disclose confidential information that they have shared with each other as a necessary part of doing business together
If an NDA is breached by one party, the other party may seek court action to prevent any further disclosures and may sue the offending party for monetary damages.

What is the role of the confidentiality clause in NDA (Non-Discloser Agreement)?

• A confidentiality clause is generally set forth in many agreements, especially confidentiality agreements. Such agreements, also known as nondisclosure agreements (NDAs), are legal agreements between parties that state information to be kept confidential, thus barring the receiving party from disclosing the information.
• Protection from disclosure of intellectual property (including trade secrets, proprietary information, and other confidential information)
• In order to protect idea of company and the confidential information behind it, a confidentiality agreement clause necessary in the NDA Agreements. In times of competition in today’s market missing out on these small precautions can jeopardize the confidential information.
• Employers entering into NDA agreements with the employees of the company can really benefit from the Confidentiality clause as they are the only people, who are working with that information day in and day out.
• Every NDA agreement must have Confidentiality clause that in the case of breach of this agreement the primary party will have the right to proceed legally in a certain prescribed manner.

What is the importance of durability (period)/Time of the contract?

• A Time is of the Essence clause may mean that one party to the contract must perform its contractual obligations at a specific date and time as required in order to compel performance by the other party to the contract. A failure to perform by the time specified will be a material breach of the contract.
• If a contract contains a valid time is of the essence clause, it must be followed strictly. If a party fails to abide by provisions regarding the essence of time, it could result in several legal consequences, such as:
• Being held liable for losses caused by the delay
• If the party has refused to continue or render performance, they could face an injunction, which is a court order instructing them to fulfill their remaining contractual duties
• If the delay was intentional or involved tortious actions, they may be held liable for punitive damages.

What is Termination clause?

The Termination clause details the circumstances under which the parties may end their legal relationship and discontinue their obligations under the agreement. Under common law, the parties may terminate the agreement for material or fundamental breach of the agreement. The termination clause may set out how, why, and even when a contract may be terminated.

There are generally two types of termination clauses:
(1) Termination for Cause (also known as Termination for Default), and
Termination for default occurs because one of the parties to the contract “defaulted.” These clauses create situations where the contract may be terminated for a failure to perform specific or general duties under the contract.
(2) Termination for Convenience
Termination for convenience takes place when one party decides, through no fault of the other party, not to go through with a deal. A contract clause that covers termination for convenience often establishes a way to calculate how much the cancelling party owes the innocent party, and it limits the cancelling party's liability to that amount. For example, in a construction contract, a client who cancels for convenience may pay a contractor for the work that was done before the cancellation, including a reasonable profit, but the client ordinarily would not have to pay for work not done yet or for business opportunities the contractor lost because of the deal.
What is the importance of the Termination clause?

In business, things often do not occur as planned, and thus parties must be able to cut and run as necessary. For contracts, this usually involves the inclusion of a termination clause. This section of the contract must clearly lay out the circumstances under which one or both parties may terminate the contract, irrespective of the time left under the agreement. For example, if one of the parties is acquired by another entity, the other party to the contract may reserve the right to terminate the agreement.

What is the importance of Jurisdiction clause in Franchisee agreement?

Jurisdiction refers to the authority of a court to adjudicate upon a dispute. Generally jurisdiction is of three types:
• Territorial or activity-based jurisdiction i.e. relating to activities within the territorial limits ascribed to the court

• Personal jurisdiction i.e. based on the persons who are parties to a dispute

• Subject-matter jurisdiction i.e. based on the location of the subject matter that forms the essence of the dispute.

If both parties to the agreement were based in the same territory, then it would be rational to subject any disputes out of the agreement to courts in that territory. However, if the parties were based in different territories, the choice of jurisdiction becomes a point of negotiation.

What is Property Ownership Audit?

Property Ownership Audit means an inspection of title deeds, agreements or other ownership documents of property before its purchasing and preparation of Audit report of the same. Audit of Property helps in knowing about present status of Property regarding its encumbrance, whether it is mortgaged or free from any claims.

What is the benefit of Property Ownership Audit?

Audit of specific Property help to traces the history of a property like who was the original owner of the property and how it has moved hands over a period of time before reaching the present seller. This is an important part of a housing loan process. Audit Report can acts as a security for the purchase of a property. The Audit Report gives comfort to the purchaser that the title of the property he is planning to purchase is good and he will not face any problems at a later stage due to some pre-existing charges or encumbrance, or legal dispute on the property. Audit Report gives a buyer the confidence that he is undertaking a transaction with a genuine party.

What are the benefits of Property Audit?

• Enlightens the buyer about the property history / third party interfering (if any)
• Acquires complete details of the original owner and previous owners
• Checks for the rights of easements involved and the minor’s rights (if any)
• Checks for the Encumbrances (if any)
• Current property status / encroachments on the property
• Checks for the property revenue records such as Patta (A Patta is a legal document issued by the Government in the name of the actual owner of a particular plot of land.)/ Khata (Account) / Tax records
• Checks for property disputes / court involvements / pathways disputes / violations on the property
• Provides complete transparency in property buying

How do I protect my business ideas?

Depending on what is at stake, there are several options available for protecting your business ideas from being stolen or copied by others. If you would like to ensure that your business partners or employees do not share important business ideas or information with others, your best bet may be to create a non-disclosure or non-compete agreement that employees can be required to sign. These types of agreements help to ensure confidentiality among employees and other individuals associated with your business, and they also protect against their leaving your company to create a competing business nearby that utilizes your ideas. If your business idea is revolutionary or has required extensive money and time on your part, you may wish to seek a patent or trademark to protect your idea. These are legal protections offered by the government and typically require a fee to obtain. If your idea or trademark is complex, or similar to those already registered by others, it may also require the assistance of an attorney in order to navigate the patent and trademark registration process.

What do you mean by Non-Compete Agreements?

Many employers ask or require employees to sign non-compete agreements in addition to an employment contract. These are contracts, governed by state law, in which an employee promises not to work for a direct competitor for a specific period of time after leaving the employer. Non-compete agreements are valuable to employers not only because they protect against the loss of employees, but also because they may provide added protection for a company’s confidential information, such as client lists or trade secrets. Client lists and trade secrets can give companies competitive advantages. Trade secrets are formulas, patterns, compilations, programs, devices, methods, techniques, or processes that a business has made reasonable efforts to keep secret from others. Employees who leave one job for another or who are laid off or fired, may take these secrets to be used for personal advantage. For example, when an employee is laid off and faced with unemployment, he or she may want to open a competing business. A non-compete agreement prevents this possibility.

Whether the Non-Compete Agreements are Enforceable?

The extent to which a non-compete agreement is enforceable varies depending on the jurisdiction. Courts value an individual’s right to earn a living, and non-compete agreements may have to pass certain criteria to be enforceable. While the criteria and analysis differ from state to state, non-compete agreements usually need to be “reasonable,” supported by a good business reason, and meet the requirements that all contracts must meet to be enforceable. In order to be enforceable, a non-compete agreement must include an offer, acceptance, intent, and a benefit or “consideration” to the employee in exchange for his or her promise. The benefit could be as simple as getting the job or, for an existing employee, getting a promotion or raise. What do courts consider “reasonable”? While there are differences among the states, it is generally established that non-compete agreements should not violate public policy. They cannot last for an overly long time period, cover too wide a geographic area, or prevent a former employee from working in many different types of businesses. For example, a non-compete agreement that prohibits a doctor from engaging in medical practice indefinitely anywhere in the United States is not likely to be found reasonable in most jurisdictions. Similarly, a non-compete agreement that prohibits a software engineer from working at any software or hardware company in the state for 20 years is not likely to be found reasonable in most jurisdictions. When a non-compete agreement lasts for more than two years, it is likely to receive closer examination by a court and less likely to be considered reasonable. However, there is no set rule, so it is better to consult an attorney before signing an agreement like this in any state except those that usually void non-compete agreements. Generally, a business should have a good business reason for asking an employee to sign one of these agreements. It should not use it to punish the employee for leaving. Also, these agreements are more likely to be enforceable in instances when employees truly do acquire a company’s trade secrets or client lists. In some states, such as California, non-compete agreements are not legally enforceable except under very limited circumstances. In those states, employers may use other agreements, such as non-solicitation agreements or nondisclosure agreements, to protect client lists, employees, and trade secrets when an employee leaves the company.

FAQ’s on Trademark

FAQ’s on Trademark

What is a Trademark?
A trademark may be a word, symbol, logo, slogan, or any combination thereof that is used to identify and distinguish one person’s goods or services from the goods or services of another, and serves as an indicator of source of the goods or services.
A trademark (popularly known as brand name) in layman’s language is a visual symbol which may be a word signature, name, device, label, numerals or combination of colours used by one undertaking on goods or services or other articles of commerce to distinguish it from other similar goods or services originating from a different undertaking.
Below are some examples of Trademarks:
• Distinctive General Word: Apple
• Fanciful designation: Kodak
• Distinctive Personal Names: Ford
• Slogan: Drink it to believe it (Pepsi), Hum hain na! (ICICI bank limited)
• Device:
• Number: the 4711 cologne
• Picture: (Lacoste logo)
In Trademark is used to indicate that the trademark is unregistered but this mark is used for promote goods. can be used even for trademarks for which registration is not applied to claim use over it.
is used to represent a registered trademark/ service mark that provides the applicant complete ownership and legal rights over the trademark/ service mark.
Use of "TM", "SM" and R notation with Trademark

The "TM" or “SM” notation is merely a means of informing third parties that the person claims trademark rights to the word, slogan, or phrase associated with "TM" or "SM" notation. The same can be used once the application is made for registration of a Trademark. After the grant the symbol "R" is used.

What is a Service Mark?

A service mark is any symbol, word, device or name, or any combination, used, or intended to be used, in business, to distinguish and identify the services and the source of services you provide to those provided by others.

Why the trademark is important?
• It identifies the goods / or services and its origin.
• It guarantees its unchanged quality
• It advertises the goods/services
• It creates an image for the goods/ services.
The Trademark makes a distinction between the goods provided by a specific manufacturer or trade person from other comparable goods. The main agenda behind a trademark is to safeguard the interest of traders as well as the consumers. It comprises of a mechanism that represent the impression of human beings, letters, signature, animal, numerals and more. A trademark plays an interesting role in promoting the goods and provides information about the quality of the product. It enables an enterprise to acquire individual rights to utilize, distribute or assign mark. This can be done by registering its trademark. A trademark is designed to present an organization or merchandise, which may belong to an individual, an enterprise or any other establishment. Trademark can also be denoted as Service marks.
What are the types of trademark?
• Any name (including personal or surname of the applicant or predecessor in business or the signature of the person), which is not unusual for trade to adopt as a mark.
• An invented word or any arbitrary dictionary word or words, not being directly descriptive of the character or quality of the goods/service.
• Letters or numerals or any combination thereof.
• The right to proprietorship of a trademark may be acquired by either registration under the Act or by use in relation to particular goods or service.
• Devices, including fancy devices or symbols
• Monograms
• Combination of colors or even a single color in combination with a word or device
• Shape of goods or their packaging
• Marks constituting a 3- dimensional sign.
• Sound marks when represented in conventional notation or described in words by being graphically represented.
What are the benefits of registering the trademarks?
• Registering a trademark protects a company's name or logo, which is often a company's most valuable asset.
• Once the trademark is registered you can use the ® symbol on your logo stating that it is a registered trademark and no one can use the same trademark. It is exclusive of all types of usages as well as rights. If someone else use the trademark then you can also sue the party if the trademark is registered.
• Registering a trademark established quality of product and services are known by everyone through the trademark and which establishes trust and goodwill among the customers in market. It helps in creating permanent customers who are loyal and always opt for the same brand.
• Registering a trademark provides official notice to others that a trademark is already taken; consequently, a company that later adopts a confusingly similar trademark cannot claim ignorance of the mark
• By registering a trademark the trademark owner receives the presumption of being the valid owner of the mark
• Registering a trademark increases the likelihood of the successful filing of a dispute resolution policy for an infringing Internet domain name
• Registering a trademark gives the trademark owner an automatic right to sue in court.
• Registering trademark is a privilege made which can be sold, assigned, franchised or economically contracted. Additionally, the Trademark is an invisible asset which gives the preferred benefit to the association.
• Trademark registered in India is valid for ten years from the date of filing of an application. However, the trademark can be further renewed
Who can file the Trademark Application?

A person or an individual, any form of institution e.g. Proprietary Concern, Partnership Firm, Pvt. Ltd. Company, LLP (Limited Liability Partnership), Public Ltd. Company, Trust etc. any one of the above can file the Trademark Application in their name. so in short a person or an institution who is holding and or using the trademark can apply for the same.

Can an Individual file a Trademark in his/her name?

Yes, an Individual can file a Trademark in his or her name, provided that person should be holding and/or using the trademark.

Is it compulsory to carry out the search before filing the Trademark Application?

No, carrying out the search before filing the application is not compulsory, but it is preferable and suggested to carry out the same, which will help you to find the similar mark, if any.

How doing the search helps to Applicant before filing the Trademark Application? give up any rights by agreeing to Binding Arbitration?

Carrying out the search before filing the Trademark Application helps the Applicant to find out the presence of same and similar Trademarks in TM database, which will minimize the possibility of getting the application, objected.

What is the next step after filing the Trademark Application

After filing the Trademark Application with the Trademark Registry, the Application goes for examination. The dedicated examiners examine the Application and send the Application for next step.

Which type of marks cannot be registered under the Trademark Act?

The marks which are generic in nature, that means the words which are commonly use in day to day language. The marks with the obscene meanings and figures, well-known marks, marks which express quality, quantity, intended values, geographical origin cannot be registered as trademarks.

Can I file the logo and the word mark together?

Yes, you can file the logo and the word mark together. But if the word mark gets objection, then in that case the whole application along with the logo will get the objection.

What is the validity of Trademark?

The Validity of the Trademark is for 10 years and you can renew the same for next 10 years.

When can I renew the Trademark?

You can renew the Trademark before 6 months from the date of expiry. Or you can renew the trademark within the period of one year after expiry of the trademark, but in that case you need to pay the additional charge for the same.

Can I file the trademark online?

Yes, you can file your trademark online. Rather it is advisable to file the trademark online. The Govt. fee fo online filing is less and filing is smooth and fast.

Do I need to file the Trademark Application through the Attorney?

It is not compulsory to file your trademark application through attorney but it is always preferable to do so, as attorney can help you search the similar marks before filing the application, can draft the exact required service description and can also handle the objections and oppositions, if any.

What is the Examination Report?

Examination Report is the report issued by the Examiner after examining the application.

What contents in Examination Report?

Examination Report mention whether the mark has been accepted or it has been objected.

What is the next step after issue of Examination Report?

If the mark has been objected in the Examination Report then the Applicant has to reply to the same within the period of one month after the issuance of Examination Report.

How to resolve the objection raised in Examination Report?

You can draft the appropriate reply to the objection raised by the registry and can file the same through your Attorney. It is always advisable to get the reply draft by the attorney, as manier times there is a legality involve in the objection.

What is famous/Well-Known trademark?

Famous/Well-Known marks are those which has immediate connection with public at large. In short it is a mark which creates the immediate connection in the minds of customers with the particular product and/or service. The moment you see or read the mark you can easily and flawlessly connect the particular product with that mark. These are some best examples of famous and/or well-known marks: McDonalds, Apple, COCA-COLA, Google, 7-O’Clock, Nestle, Bisleri, Canon etc. Famous or Well-Known marks gets a broad legal; protection as they directly connect the customers with the particular products or you may say that the particular products are known by that famous marks.

Can we remove the Trademark from the Trademark Register

Yes, you can remove the trademark from the Trademark Registry by following the requisite procedure for the same.

FAQ’s on Copyright

FAQ’s on Copyright

What is Copyright?

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity.

What is the scope of protection in the copyright Act, 1957?

The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses.

Can ideas, procedures, methods of operation or mathematical concepts be protected under the Copyright Act, 1957?

Ideas, procedures, methods of operation or mathematical concepts cannot be copyrighted.

Does copyright apply to titles & names?

Copyright does not ordinarily protect titles by themselves or names, short word combinations, slogans, short phrases, methods, plots or factual information. To get the protection of copyright the work should be original.

Is it necessary to register the work to claim copyright?

Acquisition of copyright is automatic and it does not require any formality. Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright. However, certificate of registration of copyright and the entries made therein serve as prima facie evidence in a court of law with reference to dispute relating to ownership of copyright.

Where can I file application for registration of copyright for a work?

You can file the copyright registration application with the help of the IPR attorney. It benefits you to get the copyright application filled properly.

Can Fireflies Legal LLP assist me to file the copyright registration application?

The Legal Desk has a team of well-versed IPR attorneys who will assist you and consult you for the copyright registration.

Whether unpublished works are registered?

Both published and unpublished work can be registered.

Whether computer software or Computer Programme can be registered?

A computer programme or software can be registered under the Copyright Act as a “literary Work” it includes: computer programmes, source code, object code, tables, compilations and also includes computer database.

How can I get the copyright registration for my website?

Website as a whole is not subject to copyright protection. You can get the protection for the component parts of the website separately; e.g. digital files: compute database, computer programmes (literary work), charts, photographs, paintings (artistic work), musical notes etc. (musical work). It is very important to note that the Applicant is required to submit a separate application for each component work appearing on website.

How long I have to wait to get my work registered by the copyright office?

After you file your application and receive diary number there is a mandatory period of 30 days so that no objection is filed in the Copyright office against your claim. In case any objection is filed, the Registrar of Copyrights after giving an opportunity of hearing to both the parties, may decide to register the work or otherwise. If no objection is filed the application is examined by the examiners. If any discrepancy is found the applicant will be given 45 days’ time to remove the same. Therefore, it may take around 2 to 3 months’ time for registration of any work in the normal course.

How can I get the copyright registration for the App?

An App is a complete self-contained computer programme, which is designed to perform a specific task. Therefore the App can be register under the copyright Act as literary work. It may be register as the computer programme. It is important to note that the registration will cover any screen displays generated by that programme, provided that screen display is submitted by the Applicant. Mere snapshots of screen displays of app are not eligible for copyright protection.

FAQ’s on Patent

FAQ’s on Patent

What is Patent?

Patent enables its owners to exclude from making, using and selling its inventions.

Term of Patent

The term of patent is for twenty years (20), provided the maintenance fee is paid at the end of every year.

Territorial Scope

Patent laws are territorial, a separate patent must be obtained in each country. Indian patent office protects invention only filed in India.

What is patentable?

Only inventions are patentable. An invention must be new, useful and must involve inventive steps compared to closest prior art. A new and unobvious product, process, apparatus or composition of matter will generally be patentable.

Patentability searches

Patentability search is a search for invention in hope of not finding the invention. The patentability search is an universal concept since inventions cannot be boundary constraint. But it is to be noted that the patent laws are territorial. Computer databases search is quick and relatively inexpensively. Database searches are most useful in searching sophisticated inventions, which can be described by precise, well-known terms of art. They are much less useful in searching mechanical gadget type inventions. No search will "guarantee" the patentability of any invention. The object is to make a reasonable assessment of the prospects for obtaining worthwhile patent protection. Search results are also useful in preparing a patent application.

Information required for conducting search

To conduct a search the description, drawings or photographs of the invention, showing how it is made, operated and used would be helpful. Further details of any known prior art; a summary of the prior art's shortcomings; an explanation of how these are overcome by the invention; a list of any other advantages of the invention; and, details of any possible variants or modifications that could be made without departing from the general concept of the invention.

Who can apply for a patent?

An application for obtaining a patent can be made by a true and first inventor who holds the rightful ownership in the invention due to fact that he invented the same or by any person who is an assignee/legal representative of the first and true inventor. Also a legal heir of the first and true inventor can apply for patent in case of the death of the true and first inventor.

What is not patentable invention?
1. an invention which is frivolous or which claims anything obviously contrary to whole established natural laws.
2. an invention the primary or intended use or commercial exploitation of which could be contrary to public.
3. the mere discovery of a scientific principle or the formulation of an abstract theory.
4. the mere discovery of any new property or new use for known substance or of the mere use of known process, machine or apparatus unless such known process result in a new product or employ one new reactant.
5. a substance obtained from mere admixture resulting into aggregation of properties.
6. mere arrangement or re-arrangement or duplication of known devices each functioning independently.
7. a method of agriculture or horticulture.
8. any process for the medicinal, surgical, curative, prophylactic or other treatment of human beings or animals.
9. plants and animals in whole or any part in whole or any part thereof other than micro organism but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals
10. computer programme per se other than its technical application to industry or combination with hardware
11. mathematical method or business method or algorithms
12. Literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions.
13. a mere scheme or rule or method of performing mental act or method of playing game.
14. a presentation of information
15. topography of integrated circuits
16. an invention which, in effect is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.
17. invention relating to atomic energy
What are the documents required for filling a patent application?
1. Application Form (form 1),
2. Specification (Provisional/Complete) [Form 2],
3. Drawings (if any),
4. Undertaking under section 8 (form 3), and
5. Power of Authority (if the patent application is filed through a patent attorney)
What is patent specification?
A patent specification discloses the details of the invention for which the patent protection is sought. The legal rights in a patent are based on the disclosures made in the specification. Specifications are of two kinds:
• Provisional: A provisional specification discloses incomplete invention or inventions requiring time to develop further. The provisional specification is filed to claim the priority date of an invention.
• Complete: The document, containing the detailed description of invention along with the drawings and claims is called as the complete specification. Also the description regarding prior art is included in the complete specification
What is the date of priority?

The date of priority is the date on which the patent application either with provisional specification or with complete specification is filed at the patent office.

What happens to the application after filing?

Initially, a patent examiner examines the patent applications and then communicates the objections, if any, to the applicant via first examination report. The applicant has to meet up with the compliance of the patent office within specific time frame, if the applicant fails in doing so the application shall be abandoned. Otherwise the application is published in the patent gazettes issued by the patent office. The said published application is open public perusal and opposition. If there is no opposition the patent shall be granted.

What is Prior Inform Consent (PIC)?

Prior Informed Consent is a consent sought from the innovator and/or inventor and/or knowledge holder to develop, protect, explore, commercialized ones innovation. PIC document may be of different types each defining the scope of rights imparted to exploit the innovation.

What is a PCT?

PCT abbreviated, from the Patent Cooperation Treaty. PCT is an International treaty, which provides facility to the applicant to file a single patent application and designate the countries in which he/she wants to protect his IP rights. Thus a single patent application is filed for the purpose of an international search report and to claim the priority date in all the designated countries. After receiving the international examination report, the applicant has to file a request in each designated country to take on record his/her application and this is called national phase of a patent application. A PCT application also provides an international filing date through a single patent application. India is a member country to PCT.

FAQ’s on Section 138 Criminal Complaints

FAQ’s on Section 138 Criminal Complaints

What is Cheque Bouncing under section 138 of the Negotiable Instrument Act, 1881?

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the Bank unpaid, because of insufficient fund, such person shall deemed to have committed an offence and shall be punishable under section 138 of the Negotiable Instrument Act, 1881.

In which court do I need to file the complaint case under Section 138 N.I. Act in case drawer did not pay after receiving notice?

The place where the Complainant has its main bank operating account. Other points are not relevant as for all the Complainant it shall be the nearest place to fight and let the accused come to your place

What can I do if it has been more than 30 days since I received information of dishonour of cheque?

If the cheque is still valid i.e. 3 months from the date of the cheque you can represent the cheque again to your banker as there is no restriction regarding the number of times a cheque can be presented and that every subsequent representation and dishonour gives rise to fresh cause of action for filing complaint. It may be noted that once a notice for payment is given then the holder must file a complaint under Section 138 N.I. Act within 30 days from expiry of notice period as a fresh cause of action will not arise if the cheque is presented again and it is dishonoured and failure to file complaint will lead to loss of remedy available under Section 138 N.I. Act.

How long after notice has been served can I file a case against the drawer?

After giving notice you need to file a complaint case against drawer under Section 138 N.I. Act within 30 days from the expiry of notice period i.e. 15 days. In other words you need to file complaint case against drawer within 45 days (15+30) from the date of issue of notice. Failure to do so will lead to loss of remedy under Section 138 N.I. Act; however, you can file a summary suit for recovery of money and initiate criminal proceedings under Section 420 I.P.C. within 3 years from date of issue of cheque and or initiate MSME Arbitration proceedings

What can I do if I do not have the drawer's address?

You need the address of the drawer of cheque to issue notice as contemplated under provisions of N.I. Act; also the address is necessary if you wish to avail other legal remedies available to you. You can send the notice to the last known address. In case the address of the drawer has changed and the drawer has not left a forwarding address and the notice is returned with the noting that addressee is not available at the address or addressee has left without leaving a forwarding address then you need to file a complaint case after 15 days (notice period) of receipt of such information or returned notice and within 30 days from expiry of notice period. Failure to do so will lead to loss of remedy under Section 138 N.I. Act; however, you can file a summary suit for recovery of money and initiate criminal proceedings under Section 420 I.P.C. within 3 years from date of issue of cheque.

What should I do if the notice is returned and could not be served to the drawer?

When a notice is returned to the sender as unclaimed or with the noting that addressee is not available at the address or addressee has left without leaving a forwarding address then the date of receipt of such information or returned notice would be the commencing date for the notice period of 15 days. Complaint case under Section 138 N.I. Act must be filed within 30 days from expiry of notice period. Such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address or previous address.

Can The Legal Desk assist in drafting of legal notice as required by Section 138 of N.I. Act.?

Yes, The Legal Desk can assist in drafting the legal notice by section 138 of NI Act, 1881. We can also consult in the best way of recovering your dues in legal way from the payer.

FAQ’s on Arbitration

FAQ’s on Arbitration and its Working Concepts

What is Arbitration?
Binding arbitration is a means of resolving a dispute that is private, less formal, less costly and less time-consuming than traditional litigation. The parties agree to submit their dispute to an impartial arbitrator authorized to resolve the controversy by rendering a final and binding award. A matter may proceed to arbitration usually in a matter of months, instead of the several years it may take to have a case heard in court. The matter is heard in a conference room, as opposed to a courtroom. Courtroom rules of evidence are not strictly applicable, and there is usually no significant motion practice. Formal rules of discovery do not apply, although the arbitrator may allow for some discovery, such as production of relevant documents and depositions under oath. There is no requirement of written transcripts of the proceedings.
What is Arbitration clause in Agreement?

Dispute settlement is a primary feature of any legal system and one of the major requisites of a peaceful society or group is that the resolution of trouble cases by processes which are non-violent in character and arbitration is one such key to resolve disputes. Arbitration is the most comprehensive and cooperative way for resolving disputes arising from the domestic and international commercial relationships whereby the parties mutually agrees to reconcile the dispute by entering into an agreement. The parties have an option to incorporate the separate agreement or as a clause within the contract defined as “Arbitration Clause” which binds a party to a type of resolution outside the court. Most contract arbitration takes place since the parties included an arbitration clause obliged them to arbitrate any disputes "arising under or related to" the contract. If a provision like this isn't included in the contract, the parties can still arbitrate if they both agree to it.

Why the Arbitration clause is important in Agreement?
The primary importance of including an arbitration clause in a contract before the dispute arises is that once the dispute does arise, one can force the dispute out of the court system, and so that can force the other side to arbitrate. It saves time, cost, and unnecessary harassment of the parties. Thus having a proper arbitration clause in a contract is very important. An arbitration clause is an essential part of a contract which states that all disputes between two parties who entered into a contractual relationship will be settled through the process of arbitration, rather than in the courts. This is very helpful for both the businesses and consumers by ensuring a cost-effective solution for dispute resolution. Businesses include arbitration clauses because it allows them to settle disputes quickly and quietly, without going through the often expensive and time-consuming legal system.
What is the Role of the Arbitral Tribunal?
The arbitrator acts as a private judge, and will make a ruling that is binding on the parties. Any award or order as passed by the Arbitral Tribunal is enforceable in a court of competent jurisdiction.
What is the role of Litigant Parties during Arbitration Proceedings?

You will be required to present your case by calling witnesses and presenting documentary evidence, and making arguments to persuade the arbitrator that he or she should rule in your favour.

How much does Arbitration cost?

There is difference of fee and costs in terms of Arbitration proceedings in Ad-hoc Arbitration and Institutional Arbitration. Ad-hoc Arbitration costs includes venue costs, food costs, steno costs and of course Arbitrator fees. The fee towards an Arbitrator has been defined and is taken care by the same but the Arbitrator fees can also be decided mutually between the Parties and the Arbitrator. In Institutional Arbitration, the best part is that their costs are covered in all aspects and the costs are very less compared to Ad-hoc arbitration.

Is there any time limit to complete Arbitration Proceedings?

The Arbitration and Conciliation Act has made it mandatory to complete all the Arbitration proceedings within 12 months from the date of its initiation and if not done, then by mutual consent the arbitration proceedings can be extended by 6 months but not thereafter as thereafter the approval of the Chief Justice is required or Court who has been given the power to do so.

Is the Arbitration proceedings and its process are confidential in nature unlike Courts?

The proceedings are private and not open to the public. There is no transcript of the proceedings unless one party chooses to incur the expense of obtaining a transcript. All persons permitted to be present, such as the parties and their representatives, and witnesses who have completed their testimony, are allowed to hear the testimony of other witnesses, which is given under oath. The final decision of the arbitrator is confidential, unless a party finds it necessary to enforce the decision in court.

Do I need a lawyer?

There is no mandate to have a lawyer but even arbitration proceedings is like a legal proceedings where the Statement of Claim is filed, Defence is Filed, Interim Order applications and replies are filed and argument takes place, cross examination is done, evidence is filed and all this though it is simple but it is always better and advisable to have a lawyer to ensure you are read with the strategy to fight your case. Please note for any fight or project you have to prepare your strategy and each project requires expert.

Do I give up any rights by agreeing to Binding Arbitration?

Yes, you give up the right to have your dispute heard by a judge via Court once you agree to contractual arbitration. However, now a days even if there is no contractual arbitration and the aggrieved party is an MSME registered, then arbitration proceedings can be started which is termed as Statutory Arbitration.

Who will the Arbitrator be?

The Arbitrator will be someone that both parties agree to or as per the terms being agreed between the Parties. If the agreement gives any right to sole party to appoint arbitrator, then only that party can appoint arbitrator subject to compliance of Arbitration and Conciliation Act and if the agreement gives both the parties right to appoint the arbitrator or it is silent, then the arbitrator will be appointed as per the provisions of Arbitration and Conciliation Act. [Here, we prefer that during drafting of any contract, take the help of Lawyer to ensure the clause on agreement is fair].

How do I initiate arbitration proceedings?

If you have signed a contract already containing an arbitration clause, you should read and follow the requirements in the contract. Please note that issuance of Section 21 under the Arbitration and Conciliation Act is mandatory.

What if I am unhappy with the Arbitrator's Award OR Is there any appeal process?

You can file an appeal before the competent court subject to the deposit of money if ordered against the person who was defendant or opposite party in the arbitration proceedings.

Can the Sole Arbitrator or Panel of Arbitrators grant an adjournment of hearing?

Yes, if either of the Parties wants an adjournment of hearing, they should make an application in writing to the Arbitral Tribunal giving reasons for seeking adjournment in advance of the dates as agreed to act upon to enable the Arbitral Tribunal to act on it. The Arbitral Tribunal at its discretion may grant the adjournment subject to such conditions as deemed fit by the Arbitral Tribunal.

Can the Award be given on agreed terms?

Yes, if after the appointment of an arbitrator, the Parties settle the dispute amicably then the Arbitrator will record the settlement of the dispute in the form of an arbitration award on agreed terms.

How is an award made by the Sole Arbitrator/Panel of Arbitrators?

An Award shall be given in writing and made in three originals duly dated and signed by the Sole Arbitrator or in case of a Panel of Arbitrators by all the three arbitrators.

Can the Parties to the dispute request for interest on the claim amount?

The arbitrator may include interest on the claim amount for which the award is made at a particular rate of interest and period as the arbitrator deems reasonable.

Is there any appeal provision for Award passed in arbitration proceedings?

Yes, the aggrieved party can make an application to the appropriate court to set aside the award given by a Sole Arbitrator or Panel of Arbitrators, under the provisions of the Arbitration and Conciliation Act, 1996.

When does the Award become a decree?

The award becomes a decree when the time for making an application to set aside the award has expired i.e. after expiry of 3 months from the date of receipt of award or the application for setting aside the Award having been made, has been refused by the appropriate court. In such a case the award shall be enforced as if it were a decree of the Court under the provisions of the Arbitration and Conciliation Act 1996.

How is mediation different from arbitration?

A mediator normally has no authority to render a decision. It's up to the parties themselves -- with the mediator's help -- to work informally toward their own agreement. An arbitrator, on the other hand, conducts a contested hearing between the parties and then, acting as a judge, rends a legally binding decision. Arbitration resembles a court proceeding: Each side calls witnesses, presents evidence and makes arguments. Although arbitration has traditionally been used to resolve labor and commercial disputes, it is growing in popularity as a quicker and less expensive alternative to going to court.

What are the Arbitrators duties?

It is the duty of the arbitrators to appoint a time and place for hearing the parties and making their award. They must give the parties three days’ notice and if no cause is shown for a continuance, they must proceed to hear and determine the matters referred to them and make their award in writing. The arbitrator must sign this document with a copy thereof delivered to each of the parties, their agents, or attorneys and the fact and date of such delivery endorsed on the original.

Is a foreign arbitral award valid in India? What conditions are necessary for a foreign arbitral award to be valid in India?

Yes foreign award is valid in India and binding upon the persons between whom it is made. The foreign award has to satisfy the following conditions as provided under Section 44 of the Arbitration and Conciliation Act, 1996 to be acceptable in India:-

  • The legal relationship between the parties must be commercial;
  • There must be an agreement providing for arbitration between the parties; and
  • The award must be made in a convention country. A convention country is one which has been notified by the government of India as such and to which the New York Convention applies. New York Convention is an agreement between countries for the recognition and enforcement of foreign awards made in the signatory country
When can enforcement of a foreign award be refused by an Indian court even though the award is issued by an Arbitration Panel in a convention country?

There can be various reasons for refusal to enforce a foreign award even though it is from a convention country. Some of the reasons for the refusal are as follows: a) The award is on a matter which is not commercial under the laws of India. b) The arbitration agreement entered between the parties is invalid under the law of the country where it was made. c) The parties to the arbitration were under some incapacity while entering into the agreement. d) The defendant was not given notice of the appointment of arbitrator or was unable to present his case. e) The matter sought does not fall within the scope of submission to the arbitration. f) The composition of the arbitral tribunal was not in accordance with the agreement. g) The award was suspended by competent authority of the country where it was made. h) The subject matter of arbitration is not capable of settlement under the Indian law. i) The enforcement of the award would be opposed to public policy of India.

Can all valid foreign arbitral awards be executed in India?

Any foreign award which passes the test as provided under Section 44 of the Arbitration and Conciliation Act, 1996 (the Act) is considered to be valid as per Indian law and is eligible for being executed by Indian Courts subject to satisfaction of the appropriate Court. Once the court is satisfied that the award fulfils the conditions as laid down in the Act, the award is deemed to be a decree of the Court and can be put into execution directly