The Transfer of Property Act 1882
The Transfer of Property Act 1882
IMPORTANT DEFINITIONS
Absolute interest
Reversion
The residue of an original interest which is left after the granter has granted the lessee a small
estate. Example If a property has given on lease for 5 years, after the period of 5 years, the
‘property which reverts back to him is called the reversion or reversionary interest.
Remainder
When the owner of the property grants a limited interst in favour of a person or persons and
gives the remaining to others, it is called a "remainder". For instance, A the owner of a land
transfers property to B for life and then to C absolutely. Here the interest in favour of B is a
limited interest, so after B’s death the property will go to C, interest is called a remainder.
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Example:
• Property is given to A for life with a remainder to B, A’s right is vested in
possession; B’s right is vested in interest.
• Vested interest is transferable and heritable.
• If transferee dies before taking possession of property, such property passes
to his legal representative.
Contingent interest
• Contingent interest means interest, created in favour of person, which will
take effect on happening or non-happening of specified uncertain event
• Example A transfer property to B until B marries, and after marriage of B, to
C. C has contingent interest in property.
Movable property
• Movable property is not defined under Transfer of Property Act.
• As per General Clauses Act, 1897 Movable property means “property of every
description except immovable property”.
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Immovable Property
• Not defined under Transfer of Property Act. As per Section 3, immovable property
does not include standing timber, growing crop and grass.
Standing timbers are tree fit for use for building or repairing houses. This is an
exception to the general rule that growing tree are immovable property.
(1) Growing Grass:- It includes all vegetables growths which have no existence apart
from their produce such as pan leave, sugarcane etc
(2) Grass:- Grass is an movable property, but if it is right to cut grass it would be an
interest in land and hence forms immovable property.
• As per Section 3(25), General Clauses Act, 1 897 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.
• The Indian Registration Act expressly includes under to immovable property the
benefits to arise out of land, hereditary allowances, rights of way, lights, ferries and
fisheries.
• In the case of Sukry Kurdepa v. Goondakull (1872) court has explained that
movability may be defined to be a capacity in~ a thing of suffering alteration. On the
other hand, if a thing cannot change its place without injury to the quality it is
immovable.
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Tranfer may be gift, sale, mortgage, pledge, charge, lease, actionable claims.
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• Transfer of easement.
• Restricted interest.
• Right to future maintenance.
• Right to sue.
• Transfer of public office, salary and pension
• Immovable property
Tangible
o Value of 100 Rs. or above (Registration mandatory)
o Value of less than 100 Rs. (Registartion optional)
Intangible
o Registration compulsory
General Rule: Every kind of property can be transferred. But following properties cannot be
transferred:
Transfer of easement
• An easement means an interest in land owned by another that entitled his holdersto
a specific limited use or enjoyment. An easement cannot be transferred.
• Example: If A, the owner of a house X, has a right of way over an adjoining plot of
land belonging to B, he cannot transfer this right of way to C. But if A transfers the
house itself to C, the easement is also transferred to C.
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Restricted interest
• Certain rights enjoyment of which is reserved for certain person. If it is so, it is
known as restricted interest. Restricted interest can’t be transferred to another
person. It includes ‘religious office’.
• Example: The right of PUJARI in a temple to receive offering.
The right of WIDOW under Hindu law to residence.
Right to sue
• A mere right to sue cannot be transferred. The right refers to a right to damages
arising both out of contracts as well as torts.
• Example: A commits an assault on B. B can file a suit to obtain damages; but he
cannot assign the right to C and allow him to obtain damages.
Occupancy Rights
• Transfer of occupancy rights of a tenant is prohibited.
• Example:- Tenant can’t transfer his right of tenancy and farmer can’t transfer his right to
land if he himself is a lease.
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• In case of lease transition, lessor can impose condition that the lessee shall not sub
lease it.
• In case of married woman, a condition that she will not have right during her
marriage, to transfer the property.
Exception to Section 11:- If a person transfers a property to another keeping some other
property for himself, he can impose certain condition which may interfere with the rights of
enjoyment of the transferee.
Example:- A person has 2 adjoining houses, one of which is transferred, he may impose a
condition not to construct a second floor on a property because transferor will not able to
enjoy sunlight.
Section 17 does not allow accumulation of income from the land for an unlimited period
without the income-being enjoyed by the owner of the property. The laws allow accumulation
of income for certain period only. The period for which such accumulation is valid is:-
The life of the transferor; or period of eighteen years from the date of transfer.
Any direction to accumulate the income beyond the period mentioned above is VOID.
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• The payment of the debts of the transferor or any other person taking any interest
under the transfer, or
• The provisions of portions for children or any other person taking interest in the
property under the same transfer, and
• The preservation or maintenance of the property transferred.
Example : A settles the sum of Rs. 5, 000 for the benefit of B on 1st January, 1979 and directs
the trustee to invest the money in units of the Unit trust of India and to deliver the total
accumulated income and the units to B on the turn of the century. B would be entitled to the
accumulated income and the units before the stipulated period, i.e. on 1st January, 1997 i.e. 18
years after 1st January, 1979. The accumulation of incomes is valid up to 31st December, 1996
and would be void beyond the period.
Generally property can only be transferred to living person, as on date of transfer, i.e property
cannot be directly transferred to unborn person. However there are certain exception to this
rule.
Example: Where A transfers property, of which he is the owner to B, in trust for A and his
intended wife, successively for their lives, and, after the death of the survivor, for the eldest son
of the intended marriage for life, and after his death for A’s second son, the interest so created
for the benefit of the eldest son does not take effect, because it does not extend to the whole
of A’s remaining interest in the property.
Example 1:
• A transfers a piece of land to his friend B for life, and
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In case of such disposition of the land, B cannot alienate the property, because he has
only a life interest therein. For the same reason, neither C nor D, nor the sons of B and C
can alienate the property.
When the property finally vests in D’s son, only he will be entitled to alienate the
property. This would be certainly a restraint on the free alienation of the piece of land
for a considerable long period. Section 14 prevents this and lays down that one can tie
up property and stop it’s free alienation only for one generation, because all friends of
A, now living must die within that time, as they are all candles lighted together.
Exampe2:- A child is 10 year old and he will become owner of property at 18 years of
age. So the perpetuity is 8 years
Conditional Transfer
Meaning
• When an interest is created on the transfer of property but is made to depend on
the fulfillment of a condition by the transferee, the transfer is known as a
conditional transfer.
• Such a transfer may be subject to a condition precedent or a condition subsequent.
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condition.
Rights Acquisition of an estate is Retention of the estate is affected in the
affected affected in the condition condition subsequent.
precedent.
Validity In condition precedent the In condition subsequent the condition’s
condition must be valid in the invalidity will be ignored.
eyes of law.
Example A transfers Rs. 5,000 to B on A transfer his house property to B with
condition that he shall marry condition that if he let it out on rent, the
with the consent of C, D and E. transfer shall cease to have any effect. B let
But E dies and B marries with out property on rent. He loose his interest in
the consent of C and D. B is property.
deemed to have fulfilled the
condition. This condition is
called a condition precedent.
Doctrines of Election
Meaning
Election means “choice". A person can’t accept part of agreement which is
beneficial and reject other part which is burdensome. He can either accept
agreement entirely or reject entirely.
Person taking benefit of instrument must also bear the burden.
The doctrine of election is based on the principle of equity.
The principle of the doctrine of election was explained by the House of Lords in
the leading case of Cooper vs. Cooper.
Election may be express or implied by conduct.
Example: A transfers to you his land, and in the same deed of transfer asks you
to transfer your house to C. Now, if you want to have the land, you must transfer
your house to C, because the transferor is transferring to you his land on the
condition that you give your house to C. Here, either you take the land and part
with your house or do not take it at all. This is called the doctrine of election.
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Example
A made a gift of property to B but continued in possession of the gifted property. He
purported to exercise a power of revocation and then transferred the property to
the C. The gift, however, was not revocable as it was an unconditional gift. B seeks to
recover possession from the C. C can get protection under Section 41.
Example
A, a Hindu, who has separated from his father B, sells to C three fields, X, Y and Z,
representing that he (i.e. A) is authorized to transfer the same. Of these fields Z does not
belong to A, it having been retained by B on the partition, but on B’s dying, A as heir
obtains Z. C not having rescinded the contract of sale, may require A to deliver Z to him.
Exception
Doctrine of lis pendens is not applicable when the property has been transferred by
stranger. (i.e. a person who is not party to litigation)
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For Example:- suits is pending two brothers and father has transferred property to
another person.
Example
A takes a loan from the C and fails to pay the loan. C sues him in a Court to get back
his debt. A knows that his property will be applied by court for repayment of his
loan. Meantime, he transfers his property to a friend who simply holds the property
on behalf of the transferor. Here, property is transferred to his friend with
fraudulent intention.
Conditions
• Contract for transfer of property should be for consideration.
• Terms necessary to constitute transfer must be ascertainable with reasonable
certainty from contract.
• Transferee should have taken possession of property in part performance of
contract.
• Transferee must have already fulfilled or ready to fulfilled his obligation under
contract.
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Procedure
• By registered instrument if it is of value of Rs. 100 or more.
• By registered instrument or by delivery of property when it is less than Rs. 100 in value.
Example:- A document is excuted by the donor who make a gift of immovable property and the
deeds are delievered to done. The done accepts the gift but the document is not registered.
Will the gift be valid?
Meaning
“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."
Example:- Exchange of a car for two scootors or exchange of a house for 10 hectares of land.
Essentials of exchange
• Both parties must be competent to contract.
• Exchange should be with mutual consent of parties.
• There must be mutual transfer of property.
• Neither party has paid any money .
Essentials of gift:
• Transfer of ownership from donor to donee.
• Transfer must be made voluntarily and without consideration.
• Transfer must be accepted by donee. Acceptance by donee should be during his
lifetime.
• Subject matter should be existing property. It may be movable or immovable property.
Procedure
• A gift of immovable property must be effected by a registered instrument signed by or
on behalf of the donor,
• And attested by at least two witnesses.
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Essentials of lease:
• Transfer of a right to enjoy immovable property.
• Transfer is for specific time or for perpetuity.
• There must be consideration which is paid or promised to be paid. Here premium or
rent is known as consideratlon.
• Transfer must be accepted by transferee.
Meaning of licence
Licence means right granted in respect of immovable property to enjoy certain benefits on land
in some way or other while it remains in the possession and control of owner.
Lease Licence
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Example
A borrows Rs 5000/- from B at 12% per annum interest on 1st April ,2016 and promise to pay
back the amount with interest on 1st july 2016. Till Ist july 2006 the debt is an accuring debt and
is an actionable claims.
The partner’s right to sue for accounts of dissolved partnership is an actionable claims being a
beneficial interest in movable property not in possession. (Thakardas Vs Vishindas)
Essentials of mortgages
• There must be transfer of an interest in immovable property.
• Property must be specific
• Transfer is for securing payment of loan or debt
Types of Mortgage
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Mortgagor gives personal undertaking to the mortgagee to repay amount due under the
mortgage, without delivering possession of mortgaged property, then it is called as
simple mortgage.
Essential elements
• There should be a personal obligation on the part of the mortgagor to pay the debt.
• An express or implied power is given to the mortgagee to cause the Property to be
sold through the intervention of the Court.
• There is no transfer of ownership.
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• Section 60 of the Transfer of Property Act, 1882 authorise mortgagor to get his property
back from the mortgagee on paying the amount borrowed from him.
• Clog on a right means the insertion of any clause or any provision under the mortgaged
deed which would alienate mortgagor of his property under certain circumstances.
• As per Act, such provisions would not be able to alienate a mortgagor of his “Right of
Redemption", and such provisions would be void-ab initio.
• Right of redemption shall remain effective unless the property has been sold off or
under any statutory provision.
• Even if mortgagee has went to the court for the foreclosure of the property mortgaged,
mortgagor can redeem his property by paying off the full amount in the court.
Fixed Charge
• When charge is created on Specific property, it is known as fixed charge.
• Example: Charge created on office building situated in particular locality.
• Fixed charge can't be converted into floating charge.
Floating Charge
• When charge is created not on specific property but class of property, it is known as
floating charge.
• Floating charge is charge on class of assets both present and future. In ordinary course
of business, it is changing from time to time.
• In case of floating charge, person can deal with property in ordinary course of business.
Here, deal with property means, person may use its assets charged.
• Floating charge can be converted into fixed charge.
• Example: Charge created on plant and machinery of factory.
A floating charge was created by a mortgage of book and other debts which shall become due
during the continuance of this security.( Reyork shive Wool Combers Association, Supra).
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Mortgage Charge
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Meaning
Proceeds of crime
Scheduled offence
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Important Definitions
Property
Any property or assets of every description, whether movable or immovable, tangible or
intangible and includes deeds and instruments evidencing title to, or interest in, such property
or assets, wherever located.
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Stage (1) Placement Money launderer invest his illegal profit into
financial system by breaking up large amount
into smaller amount.
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Establishment
Central Government has authority to establish an Appellate Tribunal to hear appeals
against the orders of the Adjudicating Authority.
Tribunal consists of a Chairperson and two other Members.
Appeal to Tribunal
Any person aggrieved by an order made by the Adjudicating Authority under this Act
may prefer an appeal to the Appellate Tribunal within a period of 45 days.
Tribunal may accept the appeal even after 45 days, if it is satisfied about delay after
giving an opportunity of being heard to the party.
Special Court
CG in consultation with the Chief Justice of high court designated one or more Court of Session
for trial of offence of money laundering.
Initiatives in prevention of
Money Laundering
Global level
Domestic level
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indian Initiative
Every banking company, financial institutions and intermediaries requires maintaining a record
of all transaction.
The nature and value
Whether such transaction comprises single (or) series of transaction
connected to each other.
Whether such transactions take place within a month.
Verify and maintain the records of identity of all its clients.
Record maintained above shall be kept for a period of (10) years at least
from the date of cessation of account/services.
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The Indian Stamp Act, 1899 is the law relating to stamps which consolidates and amends
the law relating to stamp duty.
It is a fiscal legislation envisaging levy of stamp duty on certain instruments.
The Act is divided into eight Chapters and there is a schedule which contains the rates of
stamp duties on various instruments.
(a) Union List
Power of the Union Legislature to levy stamp duty with regard to certain instruments
(mostly of a commercial character).
They are bill of exchange, cheques, promissory notes, bill of lading, letters of credit, and
policies of insurance, transfer of shares, debentures, proxies and receipt.
(b) The State Legislature
Power of State to prescribe the rates of stamp duties on other instruments.
Important Definitions
Bill of Lading [Section 2(4)]
A bill of lading is a receipt by the master of a ship for goods delivered to him for delivery
to X or his assigns.
When goods are delivered on board a ship, the receipt is given by the person incharge at
that time. This receipt is known as the mate’s receipt.
The shipper of the goods returns this receipt to the master before the ship leaves and
receives from him bill of lading for the goods, signed by the master.
Three copies are made, each signed by the master. One is kept by the consignor of the
goods, one by the master of the ship and one is forwarded to X, the consignee, who, on
receipt of it, acquires property in the goods. It is a written evidence of a contract for the
carriage and delivery of goods by sea.
“Bill of Lading does not include a mate’s receipt.
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Executed / Execution
The words “executed” used with reference to instruments, means “signed” and
“execution” “means “signature”.
Signature includes mark by an illiterate person.
An instrument which is chargeable with stamp duty only on being “executed” is not
liable to stamp duty until it is signed.
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2. “I have received a sum of Rs 20 which I borrowed from you and I have to be accountable
for the sum with interest” held not to be a promissory note.
Receipt [Section 2(23)]
“Receipt” includes any note, memorandum or writing:
Whereby any money or any bill of exchange, cheque or promissory note is
acknowledged to have been received; or
Whereby any other movable property is acknowledged to have been received in
satisfaction of a debt; or
Whereby any debt or demand, is acknowledged to have been satisfied.
Example: letter acknowledging the receipt of money or cheque is a receipt. A document
merely saying that the signatory has received a sum of Rs. 500 is a receipt.
Stamp
“Stamp” means any mark, seal or endorsement by any agency or person duly authorized by the
State Government and includes an adhesive or impressed stamp for the purposes of duty
chargeable under this Act.
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Methods of stamping
There are two types of stamping:
Adhesive stamping, and
Impressed stamping.
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Instruments Stamped
Every instrument written upon paper stamped with an impressed stamp shall be written
in such manner that the stamp may appear on the face of instrument and can not be
used for any other instrument.
No second instrument chargeable with duty shall be written upon piece of stamp paper
upon which an instrument chargeable with has already been written.
Adjudication as to Stamps
When the document or any draft of the document is produced to the Collector he shall
determine the proper stamp duty on payment of a nominal fee.
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The Collector shall not make any endorsement on any instrument under Section 32, where –
any instrument is first executed in India and brought to him after the expiration of one
month from the date of its execution or first execution, as the case may be;
any instrument is first executed out of India and brought to him after the expiration of
three months after it has been first received in India; or
any instrument chargeable with a duty not exceeding 10 naya paise or any bill of
exchange or promissory note, is brought to him after the drawing or execution thereof,
on paper not duly stamped.
Instruments not duly stamped – treatment and consequences (impounding)
where any person from whom a stamped receipt could have been demanded has given
an unstamped receipt and such receipt, if stamped, would be admissible in evidence
against him, on payment of a penalty of Re. 1/- by the person tendering it;
where a contract or agreement of any kind is affected by the correspondence consisting
of two or more letters and any one of the letters bears the proper stamp, the contract
or agreement shall be deemed to be duly stamped;
Where an unstamped instrument is lost, the party relying on it is helpless and no
payment of penalty can enable admission of secondary evidence.
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TIME LIMITS
in the case of a stamped paper on which no instrument has been executed by any of the
parties thereto, within six months after the stamp has been spoiled;
in the case of a stamped paper in which an instrument has been executed by any of the
parties thereto, within six months after the date of the instrument, or if it is not dated,
within six months after the execution thereof by the person by whom it was first or
alone executed:
when the spoiled instrument has been for sufficient reasons sent out of India, the
application may be made within six months after it has been received back in India.
when, from unavoidable circumstances, any instrument for which another instrument
has been substituted, cannot be given up to be cancelled within the aforesaid period,
the application may be made within six months after the date of execution of the
substituted instrument.
MISUSED STAMPS
Instruments not duly stamp inadmissible in evidence.
An insufficiently stamped instrument can be admitted in evidence on payment of
penalty.
If a person, of his own motion bring it to the collector’s notice that the instruments is
not duly stamped. In such case if collector is satisfied, that the omission to pay proper
duty was due to mistake, he may receive the deficit amount and certify by endorsement
on the instrument that the proper duty has been levied.
* Such instrument must be produced before the collector within (1) year of the date of
its execution.
When any person has inadvertently charged with a stamp of greater value than was, the
collector may on application within (6) months of the date if instrument can allow to
receive excess amount paid.
CRIMINAL OFFENCES
Drawing, making, issuing, endorsing, transferring, any bill of exchange (payable
otherwise than on demand) or promissory note without the same being duly stamped;
or
Executing or signing otherwise than as a witness any other instrument chargeable with
duty without the same being duly stamped; or
Voting under any proxy not duly stamped shall
If any person appointed to sell stamps who disobeys and any person not so appointed
who sells any
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E-STAMPING
E-Stamping is a computer based application and a secured way of paying Non-Judicial stamp
duty to the Government.
Benefits of e-Stamping
e-Stamp Certificate can be generated within minutes;
e-Stamp Certificate generated is tamper proof;
Easy accessibility and faster processing;
Security;
Cost savings and
User friendly.
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Importanat Definitions
“Developer” means
“Co-Developer” means
“Export” means—
taking goods, or providing services, out of India, from a Special Economic Zone, by
land, sea, air or by any other mode, whether physical or otherwise; or
supplying goods, or providing services, from the Domestic Tariff Area to a Unit or
Developer; or
supplying goods, or providing services, from one Unit to another Unit or Developer,
in the same or different Special Economic Zone.
“Import” means—
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Establishment of SEZ
SEZ may be established by
Any person SG CG
After identifying After identifying
Has been
the area make the area make empowered to set
proposal to SG the proposal up and notify the
concern for the directly to SEZ without
purpose of Board of consulting the
setting up SEZ concerned SG,
Approval
without referring
the proposal to the
SG may forward Board of Approval.
this proposal to
Board of
Approval
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Central Government may demarcate the areas falling within the Special Economic Zones as -
the processing area for setting up Units for activities, being the manufacture of
goods, or rendering of services;
the area exclusively for trading or warehousing purposes; or
the non-processing areas for activities other than those specified above.
All goods or services exported out of, or imported into, or procured from the
Domestic Tariff Area, by a Unit or Developer in a Special Economic Zone from the
payment of taxes, duties or cess under all enactments specified in the First
Schedule.
The enactments specified in the First Schedule generally relate to levy and
payment of cess.
Board of Approval
Duties / powers/ function of Board of Approval
Granting of approval/ rejecting proposal/ modifying proposal
for establishment of SEZ.
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Suspension of letter of approval and transfer of Special Economic Zone in certain cases
Board of approval may suspend approval and appoint an administrator for a period maximum
for 1 year to discharge the function of developer in following situations :-
Development commissioner
CG appoints development commissioner for one or
more SEZ and other officers to assist development
Commissioner.
Functions of the Development Commissioner
Guide the entrepreneurs for setting up of units in
SEZ.
Ensure and take suitable steps for effective
promotion of export from SEZ.
Ensure the performance of the developer and units
in SEZ.
Discharge any other function as may assigned by CG.
Any other function as may be delegated to him by
board of approval.
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Approval Committee
CG may notify a committee for every SEZ.
Powers / function of Approval Committee
Approval Committee
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The Approval Committee may cancel the letter of approval of an entrepreneur after
reasonable opportunity of being heard has been given to the entrepreneur.
The Approval Committee may, at any time, cancel the letter of approval if it has any
reason to believe that the entrepreneur has persistently contravened any of the
terms and conditions or its obligation subject to which the letter of approval was
granted to the entrepreneur.
If the letter of approval has been cancelled, the Unit shall not, from the date of such
cancellation, be entitled to any exemption, concession, benefit or deduction available
to it.
Any person aggrieved from an order of the Approval Committee to make an appeal to
the Board of Approval.
The concerned State Government, in which SEZ is situated, with the concurrence of
the Chief Justice of the High Court of that State, one or more Courts to try all suits of
a civil nature arising out of offences committed in the Special Economic Zone.
No court, other than the designated court shall try any suit or conduct the trial of any
notified offence.
Any person aggrieved by any decision of the designated Court can appeal to the High
Court within 60 days from the date of communication of the decision.
The High Court can allow further period of maximum 60 days if it is satisfied
that the appellant was prevented by sufficient cause.
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The Central Government may constitute by notification in the Official Gazette, an Authority
for every SEZ to exercise powers conferred on and discharge the functions assigned to it.
Functions of Authority
Identity Card
employed or
residing or
required to be present
in a Special Economic Zone be provided an identity card by every
Development Commissioner.
Central Government has power to modify provisions of the Act or other enactments in
relation to Special Economic Zones.
Provisions of this Act shall have effect notwithstanding anything inconsistent therewith
contained in any other law.
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Foreign Contribution
Means
• Donation
• Delivery
• Transfer
of
• Any article
(except gift for personal use
≤ Rs. 25,000
having value in India
• Any foreign securities
• Any currency
BY
Foreign Source
Foreign Source
United Nation
World Bank
• Govt of any Foreign Country IMF
• Any International Agency {except any other Notified by CG
• Foreign company and any subsidiary of foreign company.
• MNC
• Any company in which > 50% of nominal share capital held by any of
person mentioned below singly (or) jointly
– Govt. Of foreign country
– Citizen of foreign country
– Trust / Societies etc. Registered in Foreign Country
– Company Incorporated outside India
• A trade union of Foreign Country
• A Foreign Trust of Foreign Country
• A society, club etc. Registered in Foreign Country
• A citizen of Foreign Country
2
“Candidate for election” means a person who has been duly nominated as a candidate
for election to any Legislature.
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“Foreign hospitality” means any offer, not being a purely casual one, made in cash or kind
by a foreign source for providing a person with the costs of travel to any foreign country
with free boarding, lodging, transport or medical treatment.
“Person” includes—
an individual;
a Hindu undivided family;
an association;
a company
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• Member of legislature
• Office bearer of political party
• Judge, Govt. servant, employee of any corporation.
Prior permission of CG is required
*Exception
No prior permission is required in case of emergency
medical aid / help on account of sudden illness.
Intimation of such hospitality shall be given to CG
within (one) month from the date of receipt of such
hospitality.
Every person, who is registered and granted a certificate or given prior permission
and receives any foreign contribution,
shall utilise such contribution for the purposes for which the contribution has been
received.
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Any foreign contribution or any income arising out of it shall not be used for
speculative business.
shall not defray more than 50% of such contribution, received in a financial year,
to meet administrative expenses.
Administrative expenses exceeding 50% of such contribution may be defrayed with
prior approval of the Central Government.
The Central Government prescribes the elements which shall be included in the
administrative expenses and the manner in which the administrative expenses shall
be calculated.
Power to prohibit payment of currency received in contravention of the Act (Section 10)
Where the Central Government is satisfied, after making inquiry, that any person has in his
custody any article/ currency/ security, whether Indian or foreign, which has been accepted
by such person in contravention of any of the provisions of this Act, it may, by order in
writing, prohibit such person from paying, delivering, transferring or otherwise dealing with,
such article or currency or security.
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in case the person being other than an individual, any of its directors or office bearers
has neither been convicted under any law for any offence is pending against him;
the acceptance of foreign contribution is not likely to affect prejudicially—
the sovereignty and integrity of India; or
the security, strategic, scientific or economic interest of the State; or
the public interest; or
friendly relation with any foreign State; or
harmony between religious, racial, social, linguistic, regional groups, castes or communities;
Suspension of certificate
The Central Government may by order in writing, suspend the certificate for a period
not exceeding 180 days.
Every person whose certificate has been suspended shall not receive any foreign
contribution during the period of suspension of certificate.
Every person whose certificate has been suspended shall utilise, the foreign
contribution in his custody with the prior approval of the Central Government.
The Central Government may, if it is satisfied after making inquiry, cancel the certificate if —
the holder of the certificate has made a statement in relation to the application for
the grant of registration is incorrect or false; or
the holder of the certificate has violated any of the terms and conditions of the
certificate or renewal thereof; or
CG thinks, it is necessary in the public interest to cancel the certificate; or
the holder of certificate has violated any of the provisions of this Act or rules or
order made there under; or
if the holder of the certificate has not been engaged in any reasonable activity in its
chosen field for the benefit of the society for two consecutive years or has become
defunct.
Before passing an order of cancellation of certificate, the person concerned would be given
a reasonable opportunity of being heard.
Renewal of certificate
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Every person who has been granted a certificate shall have such certificate renewed within
6 months before the expiry of the period of the certificate.
The application for renewal of the certificate shall be made to the Central
Government.
The Central Government shall renew the certificate, ordinarily within 90 days from
the date of receipt of application for a period of 5 years.
In case the Central Government does not renew the certificate within 90 days, it
shall communicate the reasons.
If no communication from CG within (90) days, shall be considered as deemed
approval.
CG may intimate about further time extension within (90) days
If no communication in further (30) days shall be considered a deemed approval.
Every person who has been granted a certificate or given prior permission shall
receive foreign contribution in a single account only through one of the branches of a
bank as he may specify in his application for grant of certificate.
Such person may open one or more accounts in one or more banks for utilising the
foreign contribution received by him.
No funds other than foreign contribution shall be received or deposited in such
account or accounts.
Every bank or authorised person in foreign exchange shall report about amount of
foreign remittance; the source and maner in which the foreign remittance was
received.
.
Order for Audit of accounts
If any person who has been granted a certificate or given prior permission,
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If, after inspection of an account or record, the inspecting officer has any reasonable
cause to believe that any provision of the Act is being, contravened, he may seize such
account or record and produce the same before the court, authority or tribunal in
which any proceeding is brought for such contravention.
The authorised officer shall return such account or record to the person from whom it
was seized if no proceeding is brought within 6 months from the date of such seizure
for the contravention disclosed by such account or record.
Appeal
Any person aggrieved by any order may prefer an appeal, within one month from the
date of communication of the order.
The appellate court may, if it is satisfied that the appellant was prevented by sufficient
cause from preferring the appeal within one month, allow such appeal to be preferred
within a further period of one month, but not thereafter.
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Important Definitions
Cash in the form of coins, bank notes, money, bank notes, other paper money as are
authorised by law and circulate from hand to hand as a medium of exchange.
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Corporate Bodies (OCBs) ) Regulations, 2003 (the Regulations) and immediately prior to
such commencement was eligible to undertake transactions pursuant to the general
permission granted under the Regulations.
An Indian company:
whose shares are not listed in a recognised stock exchange in India;
which is engaged in the business of providing services, production or manufacture
of articles or things, but does not include such activities or sectors which are
specified in the negative list by the SEBI, with approval of Central Government, by
notification in the Official Gazette in this behalf.
Certificates issued in respect of category of land acquired for public purposes either by
the Central or State Government in consideration of surrender of land by the owner
without monetary compensation, which are transferable in part or whole.
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***Date
Date of coming and going In India/outside India shall be counted as resided in India.
Question 1.
Mr. ’A’ a foreign citizen comes to India on employment visa on 25th Oct 2002 and he left
India permanently on 10th Aug 2003. What is his status in FY 2002
2002-03, 2003-04,
04, 2004-05?
2004
Question 2.
Mr. ’A’ an Indian citizen going out of India on employment on visa on 10th Nov 2004. What is
his status on 2004-05, 2005-06?
06?
Question 3.
Mr. ’B’ an Indian citizen going out of India on education VISA for 2 years. He leaves India 10th
Nov’ 2004 and returns on 10th Nov 2006. Find the status of Mr. ‘B’ in FY 2004-05,
2004 2005-06,
2006-07, and 2007-08.
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For Individuals
Any additional remittance in excess of USD 2,50,000 in a year for the following purposes shall
require prior approval of the Reserve Bank of India:-
Private visits to any country (except Nepal and Bhutan)
Gift or donation.
Going abroad for employment
Emigration
Maintenance of close relatives abroad
Travel for business, or attending a conference or specialised training
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For meeting expenses for meeting medical expenses, check-up abroad, for
accompanying as attendant to a patient going abroad for medical treatment/
check-up.
Expenses in connection with medical treatment abroad
Studies abroad
Any other current account transaction
Commission, per transaction, to agents abroad for sale of residential flats or commercial
plots in India exceeding USD 25,000 or 5% of the inward remittance whichever is more.
Remittances exceeding USD 10,000,000 per project for any consultancy services in
respect of infrastructure projects and USD 1,000,000 per project, for other consultancy
services procured from outside India.
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EXPORT
PORT OF GOOD AND SERVICES
Export
xport of Goods or Services without Declaration
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goods sent outside India for testing subject to re-import into India.
defective goods sent outside India for repair and re-import
export permitted by RBI.
POSSESSION AND RETENTION OF FOREIGN CURRENCY / COINS
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LLPs with FDI will not be allowed to operate in agricultural/plantation activity, print
media or real estate business.
Foreign Capital participation in LLPs will be allowed only by way of cash consideration,
received by inward remittance, through normal banking channels or by debit to
NRE/FCNR account of the person concerned, maintained with an authorized
dealer/authorized bank.
FDI-Prohibited Sectors
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E-commerce
commerce activities
Single Brand product retail trading
Multi Brand Retail Trading
Railwayy Infrastructure
Asset Reconstruction Companies
Banking- Private Sector
Banking- Public Sector
Commodity Exchanges
Credit Information Companies (CIC)
Infrastructure Company in the Securities Market
Insurance
Non-Banking
Banking Finance Companies (NBFC)
Pharmaceuticals
Power Exchanges.
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Conditions
Method of Funding
Investment in an overseas JV/WOS may be funded out of one or more of the following sources:
drawal of foreign exchange from an AD Bank in India;
capitalisation of exports;
swap of shares;
utilisation of proceeds of External Commercial Borrowings (ECBs)/Foreign Currency
Convertible Bonds (FCCBs);
in exchange of ADRs/GDRs issued in accordance with the scheme for issue of Foreign
Currency Convertible Bonds and Ordinary Shares (through Depository Receipt
Mechanism) Scheme, 1993,
balances held in EEFC account of the Indian party; and
utilisation of proceeds of foreign currency funds raised through ADR/GDR issues
Conditions:
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Indian parties may also disinvest without prior approval of the Reserve Bank, in the
following categories:
the JV/WOS is listed in the overseas stock exchange;
the Indian party company is listed on a stock exchange in India and has a net worth of
not less than 100 crore;
the Indian party is an unlisted company and the investment in overseas venture does
not exceed USD 10 million.
the Indian Party is a listed company with the net worth of less than 100 crore but
investment in an overseas JV/WOS does not exceed USD 10 million.
The Indian entity is required to submit details of the disinvestment through its
designated Authorised Dealer bank within 30 days from the date of investment.
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Adjudicating Authority
Director of Enforcement
Special Director of Enforcement
Additional Director of Enforcement
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Appeal
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ITC (HS)
Refers to Indian Trade Classification (Harmonized System) at 8 digits.
“SCOMET”
Is the nomenclature for dual use items of Special Chemicals, Organisms, Materials, Equipment
and Technologies (SCOMET). Export of dual-use items and technologies under India’s Foreign
Trade Policy is regulated. It is either prohibited or is permitted under an authorization.
The following categories of importers or exporters are exempted from obtaining IEC.
Ministries /Departments of Central or State Government
Persons importing or exporting goods for personal use not connected with trade or
manufacture or agriculture.
Persons importing/exporting goods from/to Nepal, Myanmar through Indo-Myanmar
border areas and China (through Gunji, Namgaya Shipkila and Nathula ports),
provided CIF value of a single consignment does not exceed Indian Rs.25,000. In case of
Nathula port, the applicable value ceiling will be Rs. 1,00,000/-.
For export of Special Chemicals, Organisms, Materials, Equipments and Technologies
(SCOMET).
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PRINCIPLES OF RESTRICTIONS
DGFT may, through a Notification, impose restrictions on export and import, necessary for: -
Protection of public morals;
Protection of human, animal or plant life or health;
Protection of patents, trademarks and copyrights,;
Protection of national treasures of artistic, historic or archaeological value;
Conservation of exhaustible natural resources;
Prevention of traffic in arms, ammunition and implements of war.
Nature of Rewards
Duty Credit Scrips shall be granted as rewards under MEIS and SEIS.
The Duty Credit Scrips can be used for:
Payment of Customs Duties for import of inputs or goods.
Payment of excise duties on domestic procurement of inputs or goods,
Payment of service tax on procurement of services.
Payment of fee as per Foreign Trade Policy.
Merchandise Exports from India Scheme (MEIS)
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The objective of Merchandise Exports from India Scheme (MEIS) is to offset infrastructural
inefficiencies and associated costs involved in export of goods/products, which are
produced/manufactured in India, especially those having high export intensity, employment
potential and thereby enhancing India’s export competitiveness.
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If the IEC holder is a manufacturer of goods as well as service provider, then the
foreign exchange earnings and Total expenses/payment/remittances shall be
taken into account for service sector only.
STATUS HOLDER
For granting status, export performance is necessary in at least two out of three years.
Status Category Export Performance
FOB/FOR (as converted) Value in US $ million)
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Objection is to neutralize
Duty free import of input, incidence of custom duty
which are physically on import content of
incorporated/used in export product .
Component of custom
export product
duty on fuel shall also be
+ allowed in this scheme.
Fuel, oil, energy, catalysts Neutralization shall be
are consumed to obtain provide by way of CENVAT
export product credit and others.
Eligible Applicant
Advance Authorisation can be issued either to a manufacturer exporter or merchant
exporter tied to supporting manufacturer.
Advance Authorisation for pharmaceutical products manufactured
Validity period for import of Advance Authorisation shall be 12 months from the date of
issue of Authorisation.
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CIF value of imports shall be upto 300% of the FOB value of physical export in preceding
financial year or Rs 1 crore, whichever is higher
Minimum Value Addition
Minimum value addition required to be achieved under Advance Authorisation is 15%.
Export Products where value addition could be less than 15% are given Aayat Niryat
Forms.
In case of Tea, minimum value addition shall be 50%.
Export Obligation
Period for fulfilment of export obligation under Advance Authorisation shall be 18
months from the date of issue of Authorisation or as notified by DGFT.
Export Obligation for items falling in categories of defence, military store, aerospace and
nuclear energy shall be 24 months from the date of issue of authorization.
EPCG Scheme
The objective of the Export Promotion Capital Goods (EPCG) Scheme is to facilitate
import of capital goods for producing quality goods and services to enhance India’s
export competitiveness.
EPCG Scheme allows import of capital goods for pre-production, production and post-
production at Zero customs duty.
Import under EPCG Scheme shall be subject to an export obligation equivalent to 6
times of duty saved on capital goods, to be fulfilled in 6 years reckoned from date of
issue of Authorisation.
Authorisation shall be valid for import for 18 months from the date of issue of
Authorisation. Revalidation of EPCG Authorisation shall not be permitted.
Second hand capital goods shall not be permitted to be imported under EPCG Scheme.
Authorisation under EPCG Scheme shall not be issued for import of any Capital Goods
(including Captive plants and Power Generator Sets of any kind)
Import of items which are restricted for import shall be permitted under EPCG Scheme
only after approval from Exim Facilitation Committee (EFC) at DGFT Headquarters.
In case of indigenous sourcing of Capital Goods, specific EO shall be 25% less than the
EO stipulated in EPCG scheme.
For unit located in Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland,
Sikkim, Tripura and Jammu & Kashmir, specific Export obligation shall be 25% of the
Export Obligation.
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Where Authorisation holder has fulfilled 75% or more of specific export obligation and
100% of Average Export Obligation till date, upto half of the original export obligation
period specified, remaining export obligation shall be condoned
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Functions of CQCTD
The Committee (CQCTD) will be responsible for enquiring and investigating into
all Quality related complaints and other trade related complaints falling under the
jurisdiction of the respective RAs.
It will take prompt and effective steps to redress the grievances of the importers,
exporters and overseas buyers, within 3 months of receipt of the complaint.
Wherever required, the Committee (CQCTD) may take the assistance of the Export
Promotion Councils or any other agency as considered appropriate for settlement of
these disputes.
CQCTD proceedings are only reconciliatory in nature and the aggrieved party is free to
pursue any legal recourse.
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WIPO serves as a forum for its Member States to establish and harmonize rules and
practices for the protection of intellectual property rights.
WIPO also services global registration systems for trademarks, industrial designs and
appellations of origin, and a global filing system for patents.
WIPO promotes the development and use of the international Intellectual Property system
through Services Law, Infrastructure and Development.
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Copyright
Similar to property rights in movable and The inventions are exploited in industrial
immovable property, intellectual property is plants while the trademarks are concerned
also characterised by certain rights as well as with both the commerce as well as industry.
limitations such as right to use and licence
and also limited duration in the case of copy
right and patents.
Industrial property right is a collective name
for rights referring to the commercial or
industrial activities of a person.
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Means Means
A feature that
makes the invention Invention is capable
not obvious to a of being made (or)
person skilled in used in the industry.
that.
Important Definitions
Assignee {Section 2(1) (a)}
Include the legal representative of a deceased assignee, and assignee of the legal
representative or assignee of that person.
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Method of agriculture.
Any process of medical, surgical, diagnostic.
Literary, dramatic, musical (or) artistic work.
A mathematical (or) computer programs.
Presentation of information.
Invention based on traditional knowledge.
It is a documents , which
contains It is a document which contains
Provisional Specification
A provisional specification is a document, which contains the description regarding the
nature of an invention.
The description however does not contain the details regarding the invention. Also it
does not contain the claims.
The provisional specification is filed to claim the priority date of an invention. The
advantages of a provisional specification is that it can be filed as soon as the patent is
conceived and for the recorded of priority date. But the application is only examined
after the complete specification has been filed.
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Complete Specification
Complete specification is the document, which contains the detailed description of invention
along with the drawings and claims.
Every complete specification is required to -
fully and particularly describe the invention and its operation or use and the method by
which it is to be performed;
disclose the best method of performing the invention which is known to the applicant
and for which he is entitled to claim protection;
end with a claim defining the scope of the invention for which protection is claimed; and
be accompanied by an abstract to provide technical information on the invention.
Is it possible to file international application under Patent Cooperation Treaty (PCT) in India?
It is possible to file an international application known as PCT application in India in the
Patent Offices located at Kolkata, Chennai, Mumbai and Delhi.
All these offices act as Receiving Office (RO) for International application.
Residents not to apply for patents outside India without prior permission of CG and at
least 6 weeks of application made in India.
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Controller of patent shall publish it in official journal for any objection/ comment/ opposition
Maximum (3) months
Any person can make comment/objection/opposition to controller of patent
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Rights of patentees of lapsed patents which have been restored { Section 62}
Where a patent is restored, the rights of the patentee shall be subject to such conditions
as the Controller thinks fit to impose
No suit or other proceeding shall be commenced in respect of an infringement of a
patent committed between the date on which the patent ceased to have effect and the
date of the publication of the application for restoration of the patent.
Surrender of Patents
A patentee can surrender his patent by giving notice to controller of patent.
Controller of patent advertises the application and invites the objections.
Controller of patent hears the concerned parties.
Controller of patent accepts the surrender of patent and revokes the patent.
Revocation of Patents
A patent can be revoked by HC on the following grounds:
If patentee fails to comply with the request of CG to make/use/exercise patented
invention for the purpose of CG.
If patent is not reasonably worked within 2 years after compulsory licensing.
If it is exercised in mischievous mode to the country (or) prejudicial to public interest.
CG can also remove the patent in the interest of security of India
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In considering the application of compulsory licence, the Controller is required to take into
account —
the nature of the invention
the capacity of the applicant
Whether the applicant has made efforts to obtain a licence from the patentee on
reasonable terms and conditions and such efforts have not been successful.
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prices;
the licence granted is a non-exclusive licence;
the right of the licencee is non-assignable;
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Author is on
Located the date of
The author is on
the date of in India making the
publication work citizen
citizen of India of India
Important Definitions
"Adaptation" means,-
in relation to a dramatic work, the conversion of the work into a non-dramatic work;
in relation to a literary work or an artistic work, the conversion of the work into a
dramatic work by way of performance in public or otherwise;
in relation to a literary or dramatic work, any version of the work in which the story is
conveyed mainly by means of pictures in a form suitable for reproduction in a book,
newspaper, magazine etc;
in relation to a musical work, any arrangement or transcription of the work; and
in relation to any work, any use of such work involving its re-arrangement or alteration;
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"Author' means,-
in relation to a literary or dramatic work, the author of the work;
in relation to a musical work, the composer;
in relation to an artistic work other than a photograph, the artist;
in relation to a photograph, the person taking the photograph;
in relation to a cinematograph or sound recording the producer; and
in relation to any literary, dramatic, musical or artistic work which is computer-
generated, the person who causes the work to be created
"Broadcast" means
communication to the public-
by any means of wireless diffusion, whether in any one or more of the forms of signs,
sounds or visual images; or
by wire, and includes a re-broadcast;
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"Reprography" means
The making of copies of a work, by photo-copying or similar means.
Register of Copyrights
The Register of Copyrights is to be kept in Six parts –
Part I - Literary works other than computer programmes;
Part II - Musical works;
Part III - Artistic works;
Part IV - Cinematograph films;
Part V - Sound Recording; and
Part VI - Computer programmes.
Registration of Copyright
Author of the work shall make application To Registrar of
+ copyright
Application fee
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Term of Copyright
Normal term of copyright Lifetime of author + (60) years thereafter
In case of joint authorship (60) Years from the year of publication of
work
In case of pseudonymous work (60) Years from the year of publication of
(under assumed name) work
In case of posthumous work (60) Years from the year of publication of the
(author has died) work
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Voluntary Compulsory
licensing of licensing of
copyright copyright
Compulsory license
In case of In case of
published unpublished work In case of literary
work and sound (or) dramatic
recording, films, work for
musical, artistic translation
Copyright after providing
work
ROOBH to copyright
owner. May provide
compulsory license to Before making an Any person can apply
other on the terms and application to copyright board for
conditions mentioned The applicant shall production of any
that time (i.e. amount of publish his proposal in translation of work after
royalty, area, period etc.) one daily English a period of (7) years from
newspaper.
the date of publication
Other things same
License can be given
only after (9) months
*copyright board can terminate the license after
notice to the author
giving (3) months notice, if the copyright owner is Other things same
able to make/translation
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elected from among the members of the society consisting of equal number of authors
and owners of work for the purpose of the administration of the society.
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International Copyright
Copyright Protection to Foreign Works
The Copyright Act applies only to works first published in India, irrespective of the
nationality of the author.
The benefits granted to foreign works will not extend beyond what is available to the
works in the home country i.e. the foreign country must grant similar protection to
works entitled to copyright under the Act.
The term of Copyright in India to the foreign work, will not exceed that conferred by the
foreign country.
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Infringement of Copyright
Does anything for which exclusive right is conferred upon to copyright owner
Permits for profit any work comes under copyright in any form.
Makes (or) sale (or) hire any work comes under copyright.
Consequences
Injunction, damage, share of profit
(Copyright owner)
However, import of one copy of any work is allowed for private and domestic use of the
importer.
Statutory Exceptions
A fair dealing with any work, not being a computer programme, for the purposes of-—
private or personal use, including research;
criticism or review, whether of that work or of any other work;
reporting of current events and current affairs, including the reporting of
a lecture delivered in public.
the reproduction of any work for the purpose of a judicial proceeding.
the reproduction of any work—
by a teacher or a pupil in the course of instruction; or
as part of the questions to be answered in an examination; or
the performance of a literary, dramatic or musical work by an amateur club or
society, if the performance is given to a non-paying audience, or for the benefit of a
religious institution.
the reproduction in a newspaper, magazine or other periodical of an article, unless the
author of such article has expressly reserved to himself the right of such reproduction.
the storing of a work in any medium by electronic means by a non commercial public
library, for preservation if the library already possesses a non-digital copy of the work.
the making of not more than three copies of a book by a non-commercial public library for
the use of the library if such book is not available for sale in India;
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A trade mark 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.
A trade mark performs four functions
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.
Important Definitions
Trade mark {Section 2(1)(zb)}
Means a mark capable of being represented graphically and which is capable of distinguishing
the goods or services of one person from those of others and may include shape of goods, their
packaging and combination of colours; and includes a certification trade mark or collective
mark.
Collective Marks
A collective trademark distinguishing the goods/services of members of an
Association of persons from those of others.
All members of that class / group are allowed to use that trademarks.
Example:- members of ICSI/ICAI/ICMAI /Bar council etc.
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Registration of Trademark
Products/Goods Services
34 classes 11 classes
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Infringement of Trademark
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Deceptive Similarity
Case:- Mahendra and Mahendra Paper Mills Ltd. Vs. Mahindra and Mahindra Ltd.
Supreme Court broadly stated, in an action for passing – off on the basis of unregistered trade
mark generally for deciding the question of deceptive similarity the following factors are to be
considered—
The nature of the marks i.e word marks or labels marks or both.
The degree of resembleness between the marks, phonetically similar.
The similarity in nature, character and performance of the goods of the rival traders
Class of purchasers who are likely to buy the goods and degree of care they are likely to
exercise in purchasing.
The mode of purchasing the goods or placing orders for the goods.
Any other surrounding circumstances which may be relevant in the extant of
dissimilarity between the competing marks.
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even prior sales of goods though small in size with the mark are sufficient to
establish priority,
the test being to determine continuous prior user and the volume of sale or the
degree of familiarity of the public with the mark.
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Important Definition
Article { Section 2(a) }
Article means any article of manufacture and any substance, artificial, or partly artificial and
partly natural; and includes any part of an article capable of being made and sold separately.
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Copyright on Registration
When a design is registered, the registered proprietor of the design shall, subject to the
provisions of this Act, have copyright in the design during 10 years from the date of
registration.
However, before the expiration of the said 10 years, application for the extension of the
period of copyright is made to the Controller, the Controller shall, on payment of the
fee, extend the period of copyright for a second period of 5 years.
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Important Definitions
Geographical indication [Section2(e)]
In relation to goods means an indication which identifies such goods as agricultural
goods, natural goods or manufactured good as originating / manufactured in the
territory of country / region / locality, where a given quality, reputation or other
characteristic of such goods is essentially attributable to its geographical origin.
Examples of Indian Geographical Indications are Darjeeling Tea, Kanchipuram Silk Saree,
Alphanso Mango,Nagpur Orange, Kolhapuri Chappal etc.
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The Act extends to the whole of India except the State of Jammu and Kashmir and applies to all goods
and services unless otherwise notified by the Central Government.
the right to be protected against marketing of goods and services which are hazardous to life
and property;
the right to be informed about the quality, quantity, potency, purity, standard and price of
goods, or services so as to protect the consumer against unfair trade practices;
the right to be assured, wherever possible, access to variety of goods and services at
competitive prices;
the right to be heard and to be assured that consumers interests will receive due consideration
at appropriate forums;
the right to seek redressal against unfair trade practices or restrictive trade practices or
unscrupulous exploitation of consumers; and
right to consumer education.
This is based on the basic rights of consumers as defined by the International Organisation of Consumers
(IOCU).
a consumer, or
any voluntary consumer association registered under the Companies Act, or under any other
law for the time being in force; or
the Central Government or any State Government, who or which makes a complaint; or
one or more consumers where there are numerous consumers having the same interest;
in case of death of a consumer, his legal heir or representative; who or which makes a complaint
Any allegation in writing made, with a view to obtaining any relief, by a complainant that
an unfair trade practice or a restrictive trade practice has been adopted by any trader or service
provider;
the goods bought by him or agreed to be bought by him suffer from one or more defects;
the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency
in any respect;
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a trader or the service provider, as the case may be, has charged for the goods or for the
services mentioned in the complaint, a price in excess of the price—
fixed by or under any law for the time being in force;
displayed on the goods or any package containing such goods;
displayed on the price list exhibited by him by or under any law for the time
being in force
agreed between the parties.
goods which will be hazardous to life and safety when used are being offered for sale to the
public,—
in contravention of any standards relating to safety;
if the trader could have known that the goods so offered are unsafe to the
public.
services which are hazardous or likely to be hazardous to life and safety of the public when
used.
buys any goods for a consideration which has been paid or promised or partly paid and partly
promised, or under any system of deferred payment and includes any user of such goods other
than the person who buys such goods for consideration paid or promised or partly paid or partly
promised, or under any system of deferred payment when such use is made with the approval
of such person, but does not include a person who obtains such goods for resale or for any
commercial purpose; or
hires or avails of any services for a consideration which has been paid or promised or partly paid
and partly promised, or under any system of deferred payment and includes any beneficiary of
such services other than the person who hires or avails of the services for consideration paid or
promised, or partly paid and partly promised, or under any system of deferred payment, when
such services are availed of with the approval of the first mentioned person but does not include
a person who avails of such services for any commercial purpose.
Commercial purpose does not include use by a consumer of goods bought and used by him exclusively
for the purpose of earning his livelihood by means of self-employment.
A purchase of goods can be said to be for a ‘commercial purpose only if the goods have been purchased
for being used in some profit making activity on a large-scale, and there is close and direct nexus
between the purchase of goods and the profit-making activity.
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Service of any description which is made available to potential users and includes, 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 service.
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A contract for service implies a contract whereby one party undertakes to render services e.g.
professional or technical services to or for another in the performance of which he is not subject
to detailed direction and control but exercises professional or technical skill and uses his own
knowledge and discretion.
A contract of service on the other hand implies relationship of master and servant and involves
an obligation to obey orders in the work to be performed and as to its mode and manner of
performance.
Service rendered by a medical practitioner or hospital/nursing home can not be regarded as service
rendered free of charge, if the person availing the service has taken an insurance policy for medical care
where under the charges for consultation, diagnosis and medical treatment are borne by the insurance
company and such service would fall within the ambit of ‘service’ as defined in Section 2(1)(o).
Similarly, where as a part of the conditions of service, the employer bears the expenses of medical
treatment of an employee and his family members dependent on him, service rendered to such an
employee and his family members would not be free of charge and would constitute ‘service’ under
Section 2(1)(o) of the Act.
The Supreme Court held that in a country where the population has been increasing rapidly and the
Government has taken up the family planning as an important programme, the medical officer as also
the State Government must be held responsible in damages if the family planning operation is a failure
on account of the medical officers negligence because this has created additional burden on the parents
of the child.
(NCDRC) the National Commission has held that the University in conducting examination, evaluating
answer sheets and publishing the result was not performing any service for consideration and a
candidate who appeared for the examination cannot be regared as a consumer.
A dispute where the person against whom a complaint has been made, denies or disputes the allegation
contained in the complaint.
Means
a trade practice which tends to bring about manipulation of price or its 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
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delay beyond the period agreed to by a trader in supply of such goods or in providing the
services which has led or is likely to lead to rise in the price;
any trade practice which requires a consumer to buy, hire or avail of any goods or, as the case
may be, services as condition precedent to buying, hiring or availing of other goods or services.
Any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard
which is required to be maintained by or under any law for the time being in force or under any
contract, express or implied, or as is claimed by the trader in any manner whatsoever in relation
to any goods
Non-fulfilment of any of the standards or requirements laid down under any law for the time
being in force or as claimed by the trader in relation to any goods fall under the ambit of defect.
Any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of
performance which is required to be maintained by or under any law for the time being in force
or has been undertaken to be performed by a person in pursuance of a contract or otherwise in
relation to any service.
Failure to maintain the quality of performance required by the law or failure to provide services
as per warranties given, by the provider of the service would amount to ‘deficiency’.
Case:- Divisional Manager, LIC of India v. Bhavanam Srinivas Reddy, The National Commission
observed that default or negligence in regard to settlement of an insurance claim (on allegation of
suppression of material facts, in this particular case) would constitute a deficiency in service on the part
of the insurance company and it will be perfectly open for the aggrieved consumer to approach the
Redressal Forums to seek appropriate relief.
The National Commission held that a reading of Section 2(1)(g) of the Act shows that deficiency must
pertain to the ‘performance’ in terms of quality, nature and manner to be maintained or had been
undertaken to be performed in pursuance of a contract.
Ornaments kept in the banks locker were found lost though the certificate recorded by the custodian of
the bank on the day the customer operated the locker stated that all lockers operated during the day
have been checked and found properly locked. The National Commission unholding the decision of the
State Commission, held the bank guilty of negligence and therefore, liable to make good the loss.
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Failure to provide nursing and financing facilities to a small scale industry which consequently became
sick cannot be said to constitute ‘deficiency in service’ as in matters of grant or withholding of further
advances and insisting on margin money, banks may exercise their discretion and act in accordance with
their best judgement after taking into account various relevant factors. Therefore, the proper forum to
agitate such grievances is a civil court.
It has also been held by National Commission that the financial institutions have every right to protect
their interests by taking conscious decisions. There shall be no deficiency in service where the bank
takes conscious decision to adjust the fixed deposit of the joint holders against the loan taken by a third
party when the FDR has been mortgaged as guarantee for loan.
Case:- Lucknow Development Authority v. Roop Kishore Tandon Failure of a Housing Board to give
possession of the flat after receiving the price and after registering it in favour of the allottee was held
to be ‘deficiency in service.
Case:- Dainik Rail Yatri Sangh (Regd.) v. The General Manager, Northern Railway
Cancellation of train services by the railways due to disturbance involving violence so as to safeguard the
passengers as well as its own property was held by the National Commission as not constituting
‘deficiency in service’ on the part of the Railway.
Case:- N. Prabhakaran v. General Manager, Southern Railway, Madras Failure of the Railways to
provide cushioned seats in the first class compartments as per specifications laid down by the Railway
Board and to check unauthorised persons from entering and occupying first class compartments was
held to be ‘deficiency’.
The Supreme Court held that delay in payment of an unconditionally guaranteed amount by a bank in
India to a non-resident in Finland in foreign currency can not be attributed to any deficiency in the
service of the bank when the banks stand is that the delay is caused by the failure of a bank in Finland,
to which the remittance was to have been made under the non residents instructions to reply to the
Indian Banks valid query in this connection and the RBI took time to grant the necessary permission to
make the remittance.
The interests of consumers are sought to be promoted and protected under the Act by establishment of
Consumer Protection Councils at the Central, State and District Levels.
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The Central Government can establish a Council to be known as the Central Consumer Protection
Council consisting of
the Minister in charge of Consumer Affairs in the Central Government, as its Chairman,
and such number of other official or nonofficial members representing such interests as may
be prescribed.
The Consumer Protection Rules, 1987 restrict the number of members of the Central Council to 150
members.
Section 5 of the Act requires the Central Council to meet as and when necessary, but atleast once in
every year.
Any State Government can establish State Consumer Protection Councils by (by notification) to be
known as Consumer Protection Council for that State.
The State Council shall consist of
a Minister incharge of Consumer Affairs in the State Government as its Chairman and
such number of other official or non-official members representing such interests as may be
prescribed by the State Government and
such number of other official or non official members, not exceeding ten, as may be nominated
by the Central Government.
The State Council shall meet as and when necessary but not less than two meetings shall be held every
year.
In order to promote and protect the rights of the consumers within the district in every district a council
shall be established, to be known as the District Consumer Protection Council.
It shall consist of
the Collector of the district, who shall be its Chairman and
such number of other official and non-official members representing such interests as may
be prescribed by the State Government.
The District Council shall meet as and when necessary but not less than two meetings shall be held every
year.
The Act provides for a three-tier quasi-judicial redressal machinery at the District, State and National
level for redressal of consumer disputes and grievances.
The District Forum has jurisdiction to entertain complaints where the value of goods/services
complained against and the compensation, if any claimed, does not exceed Rs.20 lakhs,
the State Commission for claims exceeding Rs. 20 lakhs but not exceeding Rs. 1 crore; and
the National Commission for claims exceeding Rs.1 crore.
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The jurisdiction of the District Forum under two criteria pecuniary and territorial.
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Case:- Dynavox Electronic Pvt. Ltd. v. B.J.S. Rampuria Jain College, Bikaner
In this case it was held that where in a contract, the machinery was supplied and installed at a particular
place, a part of cause of action would be deemed to have arisen at that place, therefore, the complaint
could be instituted in the District Forum within whose jurisdiction that place falls.
The State Government can establish the State Consumer Disputes Redressal Commission consisting of:
a person who is or has been a judge of a High Court appointed by the State Government (in
consultation with the Chief Justice of the High Court) who shall be its President.
not less than two and not more than such number of members, as may be prescribed, one of whom
shall be a woman,
Every member of the State Commission shall hold office for a term of 5 years or upto the age of 67years,
whichever is earlier and shall be eligible for reappointment.
The State Commission can entertain complaints where the value of the goods or services and
the compensation, if any claimed exceed rupees twenty lakhs but does not exceed rupees one
crore;
The State Commission also has the jurisdiction to entertain appeals against the orders of any
District Forum within the State.
However, no appeal by a person, who is required to pay any amount in terms of an order of the District
Forum, shall be entertained by the State Commission unless the appellant has deposited in the
prescribed manner 50% of the amount or rupees 25000, whichever is less;
The State Commission’s jurisdiction may be original, appellate or revisional.
The State Commission may reverse the orders passed by the District Forum on any question of fact or
law or correct any error of fact or of law made by the Forum.
The State Commission on the application of the complainant or of its own motion can transfer, at any
stage of the proceeding any complaint pending before the District Forum to another District Forum
within the State if the interest of justice so requires.
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a person who is or has been a judge of the Supreme Court, to be appointed by the Central
Government (in consultation with the Chief Justice of India), who sshall
hall be its President;
not less than four and not more than such number of members as may be prescribed one of
whom shall be a woman,
Every member of the National Commission shall hold office for a term of 5 years or upto 70 years of age,
whichever is earlier
lier and shall be eligible for reappointment.
to entertain complaints where the value of the goods or services and the compensation, if any,
claimed exceeds rupees one crore;
to entertain appeals against the orders of any State Commission.
However no appeal by a person, who is required to pay any amount in terms of an order of the State
Commission, shall be entertained by the National Commission unles
unlesss the appellant has deposited in the
prescribed manner fifty percent of the amount or rupees thirty
thirty-five
five thousands, whichever is less; and
to call for the records and pass appropriate orders in any consumer dispute which is pending
before, or has been decided by any State Commission where it appears to the National
Commission that such State Commission has exercised a jurisdiction not vested in it by law, or
has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction
jurisdictio
illegally or with material irregularity.
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The District Forum, the State Commission, or the National Commission shall not admit a complaint
unless it is filed within 2 years from the date on which the cause of action has arisen.
However, where the complainant satisfies the Forum/Commission as the case may be, that he had
sufficient cause for not filing the complaint within two years, such complaint may be entertained by it
after recording the reasons for condoning the delay.
the summoning and enforcing attendance of any defendant or witness and examining the
witness on oath;
the discovery and production of any document or other material object producible as evidence;
the reception of evidence on affidavits;
the requisitioning of the report of the concerned analysis or test from the appropriate
laboratory or from any other relevant source;
issuing of any commission for the examination of any witness; and
any other matter which may be prescribed.
to remove the defects pointed out by the appropriate laboratory from the goods in question;
to replace the goods with new goods of similar description which shall be free from any defect;
to return to the complainant the price, or, as the case may be, the charges paid by the
complainant;
to pay such amount as may be awarded by it as compensation to the consumer for any loss or
injury suffered by the consumer due to the negligence of the opposite party;
to remove the defects in goods or deficiencies in the services in question;
to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them;
not to offer the hazardous goods for sale;
to withdraw the hazardous goods from being offered for sale;
to cease manufacture of hazardous goods and to desist from offering services which are
hazardous in nature;
to pay such sum as may be determined by it if it is of the opinion that loss or injury has been
suffered by a large number of consumers who are not identifiable conveniently.
to issue corrective advertisement to neutralize the effect of misleading advertisement to
provide for adequate costs to parties.
The redressal agency may order payment of compensation only in the event of negligence of the
opposite party which resulted in loss or damage and not otherwise, i.e. even though the complainant
has suffered loss or damage, he may not be entitled for compensation if he cannot prove negligence.
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Appeal
A person aggrieved by an order of the District Forum can prefer an appeal to the State
Commission.
Any person aggrieved by any original order of the State Commission may prefer an appeal to the
National Commission.
Any person aggrieved by any original order of the National Commission may prefer an appeal to
the Supreme Court.
All such appeals are to be made within 30 days from the date of the receipt of the order.
However, the concerned Appellate authority may entertain an appeal after the said period of
thirty days if it is satisfied that there was sufficient cause for not filling it within the prescribed
period.
Failure or omission by a trader or other person against whom a complaint is made or the complainant to
comply with any order of the District Forum, State Commission or the National Commission shall be
punishable
with imprisonment for a term which shall not be less than one month but which may extend to
three years, or
with fine of not less than Rs. 2,000 but which may extend to Rs. 10,000, or with both.
However, on being satisfied that the circumstances of any case so require, the District Forum or the
State Commission or the National Commission may impose a lesser fine or a shorter term of
imprisonment.
Important Cases
Conclusion:- Failure to provide basic safeguards in the swimming pool held deficiency in service.
Facts:-
The school owned a swimming pool and offered swimming facilities to the public on payment of
a fee.
The school conducted winter and summer training camps to train boys in swimming and for this
purpose engaged a trainer/coach.
The complainants had enrolled their son for learning swimming under the guidance of the
coach.
It was alleged that due to the negligence of the coach the boy was drowned and met with his
death. The school denied that it had engaged the services of a coach and also denied any
responsibility on its part.
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Conclusion:- Removal of ladder of an aircraft while disembarking by the passenger held deficiency in
service
Facts:-
When the complainant-passenger occupied his seat in the aircraft, an announcement was made that
his luggage was lying on the ground unidentified and that he should disembark to identify his
luggage.
According to the complainant he moved towards the rear door, and finding that the step ladder was
attached to the aircraft door, he stepped out on to the staircase but before he could actually put his
entire body weight on the staircase the ladder was suddenly removed as a result of which he fell
down on the ground and sustained bodily injuries which was reported to be about 10 percent.
As against the complainant’s claim of Rs. 10 lakhs the airlines was willing to pay Rs. 40,000 as
compensation which according to them was the maximum statutory liability of the Corporation
under the Carriage by Air Act, 1972.
Conclusion:-
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Conclusion:- A doctor qualified to practice homoeopathic system of medicines treating a patient with
allopathic medicines and patient dies held guilty of negligence.
Facts:-
Case:- Gopi Ram Goyal and others v. National Heart Institute and others
The National Commission held that where the record and evidence shows that the conduct of the
opposite parties i.e. doctors was more than reasonable and the level of care was as could be
expected from professional in exercising reasonable degree of skill and knowledge.
The complainant however failed to prove any case of negligence on the part of doctors, therefore
the doctor cannot be held liable for death of patient.
Conclusion:- Fall from a running train while passing through vestibule passage held deficiency in service.
Facts:-
The daughter of the respondent, travelling by a train, fell down from the running train while she was
passing through the inter-connecting passage between two compartments and died as a result of
crush injuries on her head.
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In the respondents petition for compensation, the Railways contended that the Consumer Redressal
agencies had no jurisdiction to consider a complaint of this nature in view of Section 15 of the
Railway Claims Tribunal Act read with Section 13 of that Act.
The State Commission held that a railway passenger travelling in a train on payment of
consideration was a consumer within the meaning of the Consumer Protection Act, 1986.
Section 82A of the Railways Act referred to in Section 13 of the Railway Claims Tribunal Act, 1987
and the rules made thereunder provided compensation for railway accidents and not for accidental
death of this nature.
Dismissing the appeal the National Commission held that the death of the passenger could not be
described as resulting from railway accident but an accidental death caused by the absence of safety
devices in the vestibule passage way.
Although the railway administration had claimed that the coach was a new coach and that all
coaches had been thoroughly checked at the starting point of the train and that no defect was
reported, the railways had not contended that this particular coach was checked at the time of
commencement of the journey.
The general statement of practice and procedure was not conclusive proof that this particular coach
was checked and no evidence had been produced in support of their contention.
Thus, the State Commission was right in holding that the deceased passenger was a consumer.
On the basis of similar facts, the MRTP Commission has awarded a compensation of Rs. 18 lakhs
with 9% interest to the parents of deceased.
The above compensation appears to be the highest award in commission’s history.
Conclusion:- Repudiation of Insurance claim because the driver did not have a valid license held
deficiency in service.
Facts:-
The Supreme Court has held that where the fire has occurred due to mechanical failure and not due to
any act or omission of the driver, the insurance company cannot repudiate the claim because of lack of
valid driving license.
Conclusion:- Premium paid to the agent of the LIC but the agent did not deposit the premium, death of
the insured - No deficiency of service on the part of the LIC
Facts:-
The insured (since deceased) took out four life policies with double accident benefits, premium
payable half-yearly.
When the third premium fell due, the general agent of the Corporation met the person and took
a bearer cheque towards the premium payable by him in respect of the policies.
Although the cheque was encashed immediately thereafter, it was not deposited with the
Corporation for another three months.
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In the meantime, the insured met with a fatal accident and died.
The Corporation rejected the widows claim for payment of the sum assured on the ground that
the policies had lapsed for non-payment of premium within the grace period.
In the widows complaint to the State Commission under the Consumer Protection Act the
Corporation pleaded that the amount of premium allegedly collected by the general agent could
not be said to have been received by the Corporation, that the agent was not authorised to
collect the premium amount.
Supreme Court held that the agent had no express authority to receive the premium on behalf
of the Corporation. In his letter of appointment there was a condition expressly prohibiting him
from collecting the premium. Nor could it be said that he had an implied authority to collect the
premium.
A cheque was issued under a contract of insurance of motor car by the insured for payment of
premium to the policy.
However, cheque was dishonoured for want of funds in the account.
Meanwhile, the car met an accident and badly damaged, killing the insured owner.
The claim for insured amount was repudiated by the company.
The Supreme Court held that applying the principles envisaged under Section 51, 52 and 54 of Indian
Contract Act, relating to reciprocal promises, insurer need not to perform his part of promise when
the other party fails to perform his part and thus not liable to pay the insured amount.
The University refused to provide LL.B. degree certificate on completion of course on the ground
that the qualifying examination on the basis of which student was admitted in LL.B. course in Kerala
law college has not been recognised by it.
The National Commission held that this is a clear case of deficiency on part of University.
A compensation of Rs. 50,000 was awarded to complainant.
The State Commission held that non-refund of admission fee is not a deficiency of service on the part of
the university because admission fee is consideration for admission and respondent herself voluntarily
withdrawing admission from one university to join another institute cannot claim refund of admission
fee.
Case:- Kusum Sharma & Others Versus Batra Hospital & Medical Research Centre & Others
Supreme Court (CP) Supreme Court held that while deciding whether the medical professional is guilty
of medical negligence following well known principles must be kept in view:-
Negligence is the breach of a duty exercised by omission to do something which a reasonable
man, guided by those considerations which ordinarily regulate the conduct of human affairs,
would do, or doing something which a prudent and reasonable man would not do.
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The aforementioned principles must be kept in view while deciding the cases of medical negligence. We
should not be understood to have held that doctors can never be prosecuted for medical negligence. As
long as the doctors have performed their duties and exercised an ordinary degree of professional skill
and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must
be able to perform their professional duties with free mind.
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A buyer prefers to buy a product at a price that maximizes his benefits whereas the seller prefers to sell
the product at a price that maximizes his profit.
The first Indian competition law was enacted in 1969 and was the Monopolies and Restrictive Trade
Practices Act, 1969 (MRTP Act).
that the ownership and control of material resources of the community are so
distributed as best to sub serve the common good; and
that the operation of the economic system does not result in the concentration of
wealth and means of production to the common detriment.
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The scope of the Act extends to whole of India except the State of Jammu and Kashmir.
Important Definitions
“Cartel” includes an association of producers, sellers or distributors, traders or service providers who, by
agreement amongst themselves, limit control or attempt to control the production, distribution, sale or
price of or, trade in goods or provision of services.
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Chairperson means the Chairperson of Competition Commission of India appointed under Sub-section
(1) of Section 8.
buys any goods for a consideration which has been paid or promised or partly paid and partly
promised, or under any system of deferred payment and includes any user of such goods other
than the person who buys such goods for consideration paid or promised or under any system
of deferred payment when such use is made with the approval of such person, whether such
purchase of goods is for resale or for any commercial purpose or for personal use.
hires or avails of any services for a consideration which has been paid or promised or partly paid
and partly promised, or under any system of deferred payment when such services are availed
of with the approval of the first mentioned person whether such hiring or availing of services is
for any commercial purpose or for personal use.
Under the Competition Act even if a person purchases goods or avails of services for commercial
purpose, he will be a Consumer, whereas for purposes of Consumer Protection Act, a person purchasing
goods/availing services for commercial purposes is not a “Consumer” and can not seek relief under that
Act.
Enterprise means a person or a department of the Government, who or which is, engaged in any
activity, relating to production, control of goods or articles or provision of services, of any kind,
or in investment, or in the business of acquiring, holding, underwriting or dealing with shares,
debentures or other securities whether such unit or division or subsidiary is located at the same
place where the enterprise is located or at different place(s).
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However, it does not include any activity of the Central Government relating to sovereign
functions of Government including all activities carried on by the Government Departments
dealing with atomic energy, currency, defence and space.
Goods means goods as defined in Sale of Goods Act, 1930 and includes
products manufactured, processed or mined;
debentures, shares and stocks after allotment;
in relation to ‘goods supplied’, goods imported into India.
Person includes
an individual;
a Hindu undivided family;
a company;
a firm;
an association of persons;
a corporation established under Central, State Act or a Government Company
a body corporate incorporated by or under a law of a foreign country;
a co-operative society registered under any Law
local authority
every artificial juridical person.
Price, in relation to sale of goods or supply of services, includes every valuable consideration, whether
direct or indirect, or deferred, and includes any consideration, which relates to sale of any goods or to
performance of any services although ostensibly relating to any other matter or thing.
Relevant market means the market, which may be determined by the Commission with reference to
‘relevant product market’ or ‘relevant geographic market’ or with reference to both the markets.
Relevant Geographic Market means a market comprising the area in which the conditions of
competition for supply of goods or provision of services or demand of goods or services are distinctly
homogenous and can be distinguished from conditions prevailing in neighbouring areas.
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Service means service of any description which is made available to potential users and includes
the provision of services in connection with business of any industrial or commercial matters
such as banking, communication, education, financing, insurance, chit funds, real estate,
transport, storage, material treatment, processing, supply of electrical or other energy,
boarding, lodging, entertainment, amusement, construction, repair, conveying of news or
information and advertising.
The services of industrial or commercial nature also fall within the scope of the Act.
Shares means shares in the share capital of a company carrying voting rights and includes, –
any security which entitles the holder to receive shares with voting rights;
stock except where a distinction between stock and share is expressed or implied.
Equity or preference shares are included in the definition of shares but ‘debentures convertible into
shares with voting rights’ are also included.
Any authority, board, corporation, council, institute, university or any other body corporate, established
by or under any Central, State or Provincial Act for the purposes of regulating production or supply of
goods or provision of any services or markets there for or any matter connected therewith or incidental
thereto.
Trade means any ‘trade’, business, industry, profession or occupation relating to production, supplies,
distribution, storage or control of goods and includes the provision of any services.
Bid rigging
Bidding, as a practice, is intended to enable the procurement of goods or services on the most
favourable terms and conditions.
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Most commonly adopted ways in which collusive bidding or bid rigging may occur are:
tie-in agreement;
exclusive supply agreement;
exclusive distribution agreement;
refusal to deal;
resale price maintenance;
Tie-in agreement
Includes any agreement requiring a purchaser of goods, as a condition of such purchase, to purchase
some other goods.
A good example of tie-in agreement is where a gas distributor requires a consumer to buy a gas stove as
a pre condition to obtain connection of domestic cooking gas.
Requiring a distributor not to sell the goods of the manufacturer beyond the prescribed territory is a
good example of exclusive distribution agreement.
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“Refusal to deal”
Includes any agreement, which restricts, or is likely to restrict, by any method the persons or classes of
persons to whom goods are sold or from whom goods are bought.
“Predatory price”
has been defined as the sale of goods or provision of services, at a price which is below the cost, as may
be determined by regulations, of production of goods or provision of services, with a view to reduce
competition or eliminate the competitors. Thus, the two conditions precedent to bring a case with the
ambit of predatory pricing are:
selling goods or provision of service at a price which is below its cost of production and
that practice is resorted to eliminate the competitors or to reduce competition.
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Combinations
Combination has broad coverage and includes acquisition of control, shares, voting rights, assets,
merger or amalgamation. The acquisition of one or more enterprises by one or more person or
merger or amalgamation of enterprises shall be a combination of such enterprises and persons or
enterprises, if –
(ii) the group, to which the enterprise whose control, shares, assets or voting rights have been acquired
or are being acquired, would belong after the acquisition, jointly have or would jointly have, -
either in India, the assets of the value of more than rupees 8000 crores or
turnover more than rupees 24000 crores; or
in India or outside India, in aggregate, the assets of the value of more than 4
billion US dollars, including at least rupees 1000 crores in India or turnover more
than 12 billion US dollars, including at least rupees 3000 crores in India; or
(b) acquiring of control by a person over an enterprise when such person has already direct or indirect
control over another enterprise engaged in production, distribution or trading of a similar or identical or
substitutable goods or provision of a similar or identical or substitutable service, if -
(i) the enterprise over which control has been acquired along with the enterprise over which the
acquirer already has direct or indirect control jointly have,
(A either, in India, the assets of the value of more than rupees 2000 crores or turnover
more than rupees 6000 crores; or
in India or outside India, in aggregate, the assets of the value of more than 1bn US
dollars, including at least rupees 1000 crores in India or turnover more than 3bn US
dollars, including at least rupees 3000 crores in India; or
(ii) the group, to which enterprise whose control has been acquired, or is being acquired would belong
after the acquisition, jointly have would jointly have,
either in India, the assets of the value of more than rupees 8000 crores or
turnover more than rupees 24000 crores; or
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in India or outside India, in aggregate, the assets of the value of more than 4
billion US dollars, including at least rupees 1000 crores in India or turnover more
than 12 billion US dollars, including at least rupees 3000 crores in India; or
(i) the enterprise remaining after merger or the enterprise created as a result of the amalgamation, as
the case may be, have, -
either, in India, the assets of the value of more than rupees 2000 crores or turnover
more than rupees 6000 crores; or
in India or outside India, in aggregate, the assets of the value of more than 1bn US
dollars, including at least rupees 1000 crores in India or turnover more than 3bn US
dollars, including at least rupees 3000 crores in India; or
(ii) the group, to which the enterprise remaining after the merger or the enterprise created as a result
of the amalgamation, would belong after the merger or the amalgamation, as the case may be, have or
would have, -
either in India, the assets of the value of more than rupees 8000 crores or
turnover more than rupees 24000 crores; or
in India or outside India, in aggregate, the assets of the value of more than 4
billion US dollars, including at least rupees 1000 crores in India or turnover more
than 12 billion US dollars, including at least rupees 3000 crores in India; or
“Control”
“Group”
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a Chairperson and
not less than two and not more than six other Members.
The Chairperson and other Members are to be appointed on whole time basis.
Chairperson and every other Member shall hold office as such for a term of five years from
the date on which he enters upon his office and shall be eligible for re-appointment.
However, the Chairperson or other Members shall not hold office as such after he has
attained the age of sixty-five years.
Chairperson or any other Member may resign his office by notice in writing under his hand
addressed to the Central Government.
However, until the Chairperson or a Member is permitted by the Central Government to
relinquish his office, he will continue to hold his office until the expiry of three months from the
date of receipt of such notice or until a person duly appointed as a successor enters into his
office or until the expiry of his term, which ever is the earliest.
Central Government may, by order, remove the Chairperson or any Member from his office if such
Chairman or Member as the case may be, -
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While determining whether an agreement has appreciable adverse effect on competition, the
Commission shall give due regard to all or any of the following factors–
For the purpose of determining whether an enterprise enjoys dominant position or not the
Commission shall have due regard to all or any of the following factors –
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For determining the “relevant geographic market”, the Commission shall have due regard to all or any
of the following factors;
While determining ‘relevant product market’ the Commission shall have due regard to all or any of
the following factors;
Commission shall meet at such times and places, and shall observe such rules and procedure in
regard to the transaction of business at its meetings as may be provided by regulations.
The Chairperson, if for any reason, is unable to attend a meeting of the Commission, the senior-
most Member present at the meeting, shall preside at the meeting.
All questions which come up before any meeting of the Commission shall be decided by a
majority of the Members present and voting, and in the event of an equality of votes, the
Chairperson or in his absence, the Member presiding, shall have a second or/casting vote.
However, the quorum for such meeting shall be three Members.
If the Commission is of the opinion that there exists a prima facie case, on receipt of an
information from any person, it shall direct the Director General to cause an investigation to be
made into the matter.
The Director General shall investigate into the matter and submit a report of its findings within
the period as may be specified by the Commission. It is, however, not binding on the
Commission to accept the report of the Director General.
Where upon receipt of a reference or information, the Commission is of the opinion that there is
no prima- facie case, it shall pass an order dismissing the reference/information, as it deems fit
and necessary.
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Upon receipt of a report from the Director General, the Commission shall forward a copy
thereof to
the parties concerned or
Central Government or
State Government or
statutory authority as the case may be.
If the Director General, in relation to a matter referred to it, recommends that there is
no contravention of any of the provisions of the Act, the Commission shall give an opportunity
of hearing to the informant and after hearing, if the Commission agrees with the
recommendation of the Director General, it shall dismiss the information.
(i) The Commission first has to form a prima facie opinion that a combination is likely to cause, or has
caused an appreciable adverse effect on competition;
(ii) After receipt of the response of the parties to the combination may call for the report of the Director
General.
(iii) The Commission prima-facie is of the opinion that the Combination is likely to cause an appreciable
adverse effect on competition in relevant market, it shall, within seven days direct the parties to the
combination to publish within ten working days, the details of the combination, in such manner as it
thinks appropriate so as, to bring to the information of public and persons likely to be affected by such
combination.
(iv) The Commission may invite any person affected or likely to be affected by the said combination, to
file his written objections within fifteen working days of the publishing of the public notice, with the
Commission for its consideration.
(v) The Commission may, within fifteen working days of the filing of written objections, call for such
additional or other information as it deem fit from the parties to the said combination and the
information shall be furnished by the parties above referred within fifteen days from the expiry of the
period notified by the Commission.
(vi) After receipt of all the information and within forty-five days from expiry of period for filing further
information, the Commission shall proceed to deal with the case, in accordance with provisions
contained in Section 31 of the Act.
Acts taking place outside India but having an effect on Competition in India { Section 32}
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a complainant; or
a defendant; or
the Director General
They may either appear in person or authorise any of the following:
a chartered accountant who has obtained a certificate of practice; or
a company secretary who has obtained a certificate of practice;
a cost accountant who has obtained a certificate of practice;
a legal practitioner that is an advocate.
The Act provides that the Director General when so directed by the Commission, is to assist the
Commission in investigation into any contravention of the provisions of this Act.
The Director General is bound to comply with such a direction to render requisite assistance to
the Commission.
The Director General, in order to effectively discharge his functions, has been given the same
powers as are conferred upon the Commission as are vested in Civil Court in respect of the
following matters;
summoning and enforcing the attendance of any person and examining him on oath;
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The Commission may cause an inquiry to be made into compliance of its orders or directions and
if any person, without any reasonable cause, fails to comply with any order of the
Commission, or condition or restriction subject to which any approval, sanction, direction or
exemption in relation to any matter has been accorded, given, made or granted under this
Act; or
if any person fails to pay the penalty imposed under the Act, he shall be punishable with
imprisonment for a term which may extend to three years or with fine which may extend to
rupees twenty five crores or with both.
Penalty for failure to comply with directions of Commission and Director General { Section 43 }
If any person fails to comply, without reasonable cause, with a direction given by the Commission or the
Director General, such person shall be punishable with fine which may extend to rupees one lakh for
each day during which such failure continues subject to a maximum of rupees one crore, as may be
determined by the Commission
Central Government/State Government may seek the opinion of the CCI on the possible effects
of the policy on competition or any other matter.
While formulating a policy on the competition, the Government may make a reference to the
Commission for its opinion on possible effect of such a policy on the competition, or any other
matter.
On receipt of such a reference, the Commission shall, give its opinion on it to the Central
Government/State Government, within sixty days of making such a reference and the latter may
formulate the policy as it deems fit.
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The role of the Commission is advisory and the opinion given by the Commission shall not be
binding upon the Central Government/State Government in formulating such a policy.
The Commission is also empowered to take suitable measures for the
promotion of competition advocacy;
creating awareness about the competition; and
imparting training about competition issues.
Proper accounts and other relevant records shall be maintained by the Commission and an
annual statement of accounts shall be prepared by it in prescribed form in consultation with the
Comptroller and Auditor General of India (CAG).
The CAG shall specify the intervals within which the accounts of the Commission shall be audited
by him.
Orders passed by the Commission, being matters appealable to the Supreme Court, shall not be
subject to audit by the CAG.
The expenses, if any, incurred in connection with such audit shall be payable by the Commission
to the CAG.
The CAG or any person appointed by him in connection with the audit of the accounts of the
Commission shall have same rights, privileges and authority in connection with such audit as
CAG has in connection with the audit of Government accounts and, shall have the right to
demand the production of books, accounts, connected vouchers and other documents and
papers and to inspect any of the offices of the Commission.
Only accounts as certified by the CAG and any other person authorised by him in this behalf
together with the audit report thereon shall be forwarded to the Central Government and the
Government shall cause it to be laid before each House of Parliament.
The Central Government or the State Government or a local authority or enterprise or any
person, aggrieved by any direction, decision or order may prefer an appeal to the Appellate
Tribunal.
Every appeal shall be filed within a period of 60 days.
However, the Appellate Tribunal may entertain an appeal after the expiry of the said period
of sixty days if it is satisfied that there was sufficient cause for not filing it within that period.
Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being
heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the
direction, decision or order appealed against.
The Appellate Tribunal shall send a copy of every order made by it to the Commission and
the parties to the appeal.
The appeal filed before the Appellate Tribunal shall be made by it to dispose of the appeal
within six months from the date of receipt of the appeal.
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a Chairperson and
not more than two other members
to be appointed by the Central Government.
Qualifications for appointment of Chairperson and Members of Appellate Tribunal {Section 53D}
Chairperson of the Appellate Tribunal shall be a person, who is, or has been a Judge of the
Supreme Court or the Chief Justice of a High Court.
A member of the Appellate Tribunal shall be a person of ability, integrity and standing
having special knowledge of, and professional experience of not less than twenty five
years in, competition matters including competition law and policy, international trade,
economics, business, commerce, law, finance, accountancy, management, industry, public
affairs, administration or in any other matter which in the opinion of the Central
Government, may be useful to the Appellate Tribunal.
Restriction on employment of Chairperson and other Members of Appellate Tribunal in certain cases
The Chairperson and other members of the Appellate Tribunal shall not, for a period of two
years from the date on which they cease to hold office, accept any employment in, or connected
with the management or administration of, any enterprise which has been a party to a
proceeding before the Appellate Tribunal under the Act.
However, nothing contained in this section shall apply to any employment under the Central
Government or a State Government or local authority or in any statutory authority or any
corporation established by or under any Central, State or Provincial Act or a Government
Company.
The Appellate Tribunal shall have, for the purposes of discharging its functions under this Act, the same
powers as are vested in a civil court in respect of the following matters:
summoning and enforcing the attendance of any person and examining him on oath;
requiring the discovery and production of documents;
receiving evidence on affidavit;
issuing commissions for the examination of witnesses or documents;
reviewing its decisions;
dismissing a representation for default or deciding it ex parte;
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setting aside any order of dismissal of any representation for default or any order
passed by it ex parte;
any other matter which may be prescribed.
If any person contravenes, without any reasonable ground, any order of the Appellate Tribunal, he shall
be liable for a penalty of not exceeding rupees one crore or imprisonment for a term up to three years
or with both.
The Central Government or any State Government or the Commission or any statutory authority
or any local authority or any enterprise or any person aggrieved by any decision or order of the
Appellate Tribunal may file an appeal to the Supreme Court within sixty days from the date of
communication of the decision or order of the Appellate Tribunal to them.
The Supreme court may, if it is satisfied that the applicant was prevented by sufficient cause
from filing the appeal within the said period, allow it to be filed after the expiry of the said
period of sixty days.
Power to exempt
The Central Government may, by notification exempt from the application of the Act, or any provision
thereof—
any class of enterprises if such exemption is necessary in the interest of security of the
State or public interest;
any practice or agreement arising out of and in accordance with any obligation assumed
by India under any treaty, agreement or convention with any other country or countries;
any enterprise, which performs a sovereign function on behalf of the Central
Government or a State Government.
It is stipulated under section 56 of the Act that if at any time the Central Government is of the opinion -
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supersede the Commission for such period, not exceeding six months, as may be
specified in the notification.
Thus, power to supersede CCI vests in the Central Government. However before issuing any such
notification, the Central Government shall give to the Commission a reasonable opportunity to make
representations against the proposed supersession for its consideration.
the Chairperson and other members shall vacate the office from the date of suppression;
until Commission is reconstituted, all powers functions and duties of the Commission shall be
discharged by the Central Government or by an authority specified by the Central Government
in this behalf;
until the Commission is reconstituted all of its properties shall vest in the Central Government.
A civil court is precluded to exercise Jurisdiction in respect of any matter, which the Commission is
empowered by or under the Act to determine and no injunction shall be granted by any court or other
authority in respect of any action taken or to be taken in pursuance of any power conferred by or under
the Act.
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(2) an obligation.
Agreement
Characteristics of an agreement:
Agreements in which the idea of bargain is absent and there is no intention to create legal
relations are not contracts. These are:
In this case it was held that, a husband working in Ceylone, had agreed in writing to
pay a housekeeping allowance to his wife living in England. On receiving information
that she was unfaithful to him, he stopped the allowance: Held, he was entitled to do
so. This was a mere domestic arrangement with no intention to create legally binding
relations. Therefore, there was no contract.
(i) An offer or proposal by one party and acceptance of that offer by another party
resulting in an Agreement—consensus-ad-idem.
(ii) An intention to create legal relations or intent to have legal consequences.
(iii) The agreement is supported by a lawful consideration.
(iv) The parties to the contract are legally capable of contracting.
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Acceptance
A contract emerges from the acceptance of an offer. Acceptance is the act of assenting by
the offeree to an offer. Under Section 2(b) of the Contract Act when a person to whom the
proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal,
when accepted becomes a promise..
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An acceptance never precedes an offer. There can be no acceptance of an offer which is not
communicated. Similarly, performance of conditions of an offer without the knowledge of the
specific offer, is no acceptance.
In this case it was held that where a servant brought the boy without knowing of the reward,
he was held not entitled to reward because he did not know about the offer.
Standing Offers
A tender to supply goods as and when required, amounts to a standing offer.
Contracts by Post
Contracts by post are subject to the same rules as others, but because of their importance,
these are stated below separately:
An offer by post may be accepted by post, unless the offeror indicates anything to the
contrary.
An offer is made only when it actually reaches the offeree and not before, i.e.,
when the letter containing the offer is delivered to the offeree.
An acceptance is made as far as the offeror is concerned, as soon as the letter
containing the acceptance is posted, to offerors correct address; it binds the offeror, but
not the acceptor.
An acceptance binds the acceptor only when the letter containing the acceptance
reaches the offeror. The result is that the acceptor can revoke his acceptance before it
reaches the offeror.
An offer may be revoked before the letter containing the acceptance is posted. An
acceptance can be revoked before it reaches the offeror.
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In this case it was held thatiIf during the conversation the telephone lines go “dead” and the
offeror does not hear the offerees word of acceptance, there is no contract at the
moment. If the whole conversation is repeated and the offeror hears and understands
the words of acceptance, the contract is complete.
For example, if a seaman deserts his ship so breaking his contract of service and is induced
to return to his duty by the promise for extra wages, he cannot later sue for the extra wages
since he has only done what he had already contracted for:
If it is expressed in writing and registered and is made out of natural love and
affection between parties standing in a near relation to each other; or
If it is made to compensate a person who has already done something
voluntarily for the promisor, or done something which the promisor was legally
compellable to do; or
If it is a promise in writing and signed by the person to be charged therewith, or
by his agent, to pay a debt barred by the law of limitation.
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Besides, according to Section 185 of the Indian Contract Act, consideration is not
required to create an agency.
In the case of gift actually made, no consideration is necessary. There need
not be nearness of relation and even if it is, there need not be any natural love
and affection between them.
FLAWS IN CONTRACT
The chief flaws in contract are:
Incapacity
Mistake
Misrepresentation
Fraud
Undue Influence
Coercion
Illegality
Impossibility.
Firstly: The agreement may be treated as of no effect and it will then be known as
void agreement.
Secondly: The law may give the party aggrieved the option of getting out of his bargain, and
the contract is then known as voidable.
Thirdly: The party at fault may be compelled to pay damages to the other party.
Mistakes are of two kinds: (i) mistake of law, and (ii) mistake of fact. If there is a
mistake of law of the land, the contract is binding because everyone is deemed to
have knowledge of law of the land and ignorance of law is no excuse (ignorantia juris
non-excusat).
But mistake of foreign law and mistake of private rights are treated as mistakes of
fact and are execusable.
The law of a foreign country is to be proved in Indian Courts as ordinary facts. So
mistake of foreign law makes the contract void. Similarly, if a contract is made in
ignorance of private right of a party, it would be void, e.g., where A buys property
which already belongs to him.
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There are contracts in which the law imposes a special duty to act with the utmost good faith
i.e., to disclose all material information. Failure to disclose such information will render the
contract voidable at the option of the other party.
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In case of misrepresentation and fraudulent silence, the defendant can take a good
plea that the plaintiff had the means of discovering the truth with ordinary
diligence. This argument is not available if there is fraud (Section 19- exception).
In misrepresentation the plaintiff can avoid or rescind the contract. In fraud, the
plaintiff can claim damages as well.
If there is fraud, it may lead to prosecution for an offence of cheating under the Indian
Penal Code.
Coercion
Means “the committing or threatening to commit any act forbidden by the Indian Penal Code,
or unlawful detaining or threatening to detain, any property to the prejudice of any person
whatever with the intention of causing any person to enter into an agreement”.
The doing of any act forbidden by the Indian Penal Code is coercion even though such an act
is done in a place where the Indian Penal Code is not in force. If A at the point of a pistol
asks B to execute a promissory note in his favour and B to save his life does so he can
avoid this agreement as his consent was not free. Even a threat to third-party, e.g., where A
compels B to sign a document threatening to harm C, in case B does not sign would also
amount to coercion.
It has been held that mere threat by one person to another to prosecute him does not
amount to coercion. There must be a contract made under the threat and that contract
should be one sought to be avoided because of coercion
Undue Influence
Where there is a presumption of undue influence, the presumption can be rebutted by showing
that
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Unconscionable transactions
An unconscionable transaction is one which makes an exorbitant profit of the others distress
by a person who is in a dominant position.
Only the fact that the rate of interest is very high in a money lending transaction shall not
make it unconscionable. But if the rate of interest is very exorbitant and the Court regards
the transaction unconscionable, the burden of proving that no undue influence was
exercised lies on the creditor.
Every agreement by which any one is restrained from exercising a lawful profession, trade or
business of any kind, is, to that extent, void.
Case:- Niranjan Shanker Golikari v. The Century Spinning and Manufacturing Co. Ltd.
In this case N entered into a bond with the company to serve for a period of five years. In
case, N leaves his job earlier and joins elsewhere with companys competitor within five
years, he was liable for damages. N was imparted the necessary training but he left the job
and joined another company. The former employer instituted a suit against N. The Supreme
Court, held that the restraint was necessary for the protection of the companys interests and
not such as the Court would refuse to enforce.
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WAGERING AGREEMENTS
Wagerning agreements are nothing but ordinary betting agreements. For example, A and B
enter into an agreement that if Englands Cricket Team wins the test match, A will pay B Rs.
100 and if it loses B will pay Rs. 100 to A. This is a wagering agreement and nothing can be
recovered by winning party under the agreement.
RESTITUTION
When a contract becomes void, it is not to be performed by either party. But if any party has
received any benefit under such a contract from the other party he must restore it or make
compensation for it to the other party.
A agrees to sell to B after 6 months a certain quantity of gold and receives Rs 500 as
advance. Soon after the agreement, private sales of gold are prohibited by law. The
contract becomes void and A must return the sum of Rs. 500 to B.
But there is no resolution where the parties are wholly incompetent to contract, e.g., where
one of the parties is a minor. The minor cannot be asked to restore the benefit, e.g., a minor
borrowed Rs. 1,000 from B, he cannot be asked to pay back Rs. 1,000 to B because the
contract is.
Contract of insurance and contracts of indemnity and guarantee are popular instances
of contingent contracts.
The following types of quasi-contracts have been dealt within the Indian Contract Act—
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(i) A debtor may recover, from a creditor the amount of an over-payment made to him by
mistake. The mistake may be mistake of fact or a mistake of law.
(ii) Payment to third-party of money which another is bound to pay. For example, where
A’s goods are wrongfully attached in order to realise arrears of Government revenue
due by B, and A pays the amount to save his goods from being sold, he is entitled to
recover the amount from B.
(iii) Money obtained by defendant from third-parties. For example, where an agent has
obtained a secret commission or a fraudulent payment from a third-party, the principle
can recover the amount from the agent.
(c) Quantum Meruit
“Quantum Meruit” literally means “as much as earned” or reasonable
remuneration. It is used where a person claims reasonable remuneration for
the services rendered by him when there was no express promise to pay the
definite remuneration, Thus, the law implies reasonable compensation for the
services rendered by a party if there are circumstances showing that these are to
be paid for.
The position of a finder of lost goods is exactly that of a bailee. The rights of a
finder are that he can sue the owner for any reward that might have been offered,
and may retain the goods until he receives the reward. But where the owner has
offered no reward, the finder has only a particular lien and can detain the goods
until he receives compensation for the troubles and expenses incurred in
preserving the property for finding out the true owner. But he cannot file a suit for
the recovery of the compensation .
Thus, as against the true owner, the finder of goods in a public or quasi public place
is only a bailee; he keeps the article in trust for the real owner. As against every-one
else, the property in the goods vests in the finder on his taking possession of it.
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(ii) when the lawful charges of the finder for the preservation of goods
and the finding out of the owner amounts to two-thirds of the value of
the thing .
Where a person lawfully does something for another person or delivers anything to
him withoutany intention of doing so gratuitously and the other person accepts and
enjoys the benefit thereof, the latter must compensate the former or restore
to him the thing so delivered. For example, when one of the two joint tenants
pays the whole rent to the landlord, he is entitled to compensation from his co-
tenant, or if A, a tradesmen, leaves goods at B’s house by mistake and B treats
the goods as his own, he is bound to pay A for them.
(a) performance, i.e., by fulfilment of the duties undertaken by parties or, by tender;
(b) mutual consent or agreement.
(c) lapse of time;
(d) operation of law;
(e) impossibility of performance; and
(f) breach of contract.
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Meaning of Indemnity
A contract of indemnity is a contract by which one party promises to save the other party from
loss caused to him by the conduct of the promisor himself, or by the conduct of any
other person.
The person who promises to indemnify or make good the loss is called the indemnifier and
the person whose loss is made good is called the indemnified or the indemnity holder.
The person who gives the guarantee is called the Surety, the person for whom the
guarantee is given is called the Principal Debtor, and the person to whom the guarantee is
given is called the Creditor.
A guarantee may be either oral or written, although in the English law, it must be in writing.
Example - A advances a loan of Rs. 5,000 to B and C promises to A that if B does not repay
the loan, C will do so. This is a contract of guarantee. Here B is the principal debtor, A is the
creditor and C is the surety or guarantor.
In a contract of indemnity there are only two parties: the indemnifier and the
indemnified. In a contract of guarantee, there are three parties; the surety, the
principal debtor and the creditor.
In a contract of indemnity, the liability of the indemnifier is primary. In a contract of
guarantee, the liability of the surety is secondary. The surety is liable only if the
principal debtor makes a default, the primary liability being that of the principal
debtor.
The indemnifier need not necessarily act at the request of the debtor; the surety
gives guarantee only at the request of the principal debtor.
In the case of a guarantee, there is an existing debt or duty, the performance of
which is guaranteed by the surety, whereas in the case of indemnity, the possibility
of any loss happening is the only contingency against which the indemnifier
undertakes to indemnify.
The surety, on payment of the debt when the principal debtor has failed to pay is
entitled to proceed against the principal debtor in his own right, but the indemnifier
cannot sue third-parties in his own name, unless there be assignment. He must sue
in the name of the indemnified.
Extent of Surety’s Liability
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The liability of the surety is co-extensive with that of the principal debtor unless the contract
otherwise provides. A creditor is not bound to proceed against the principal debtor. He can
sue the surety without sueing the principal debtor. As soon as the debtor has made
default in payment of the debt, the surety is immediately liable. But until default, the
creditor cannot call upon the surety to pay. In this sense, the nature of the surety’s liability is
secondary.
Rights of Surety
Surety’s rights against the creditor - A surety is entitled to the benefit of every security
which the creditor has against the principal debtor at the time when the contract
of suretyship is entered into whether the surety knows of the existence of such security
or not; and, if the creditor losses or, without the consent of the surety parts with such
security, the surety is discharged to the extent of the value of the security.
Rights against the principal debtor: After discharging the debt, the surety steps into the
shoes of the creditor or is subrogated to all the rights of the creditor against the
principal debtor. He can then sue the principal debtor for the amount paid by him to the
creditor on the debtors default; he becomes a creditor of the principal debtor for what
he has paid.
Surety’s rights gains co-sureties: When a surety has paid more than his share of debt to
the creditor, he has a right of contribution from the co-securities who are equally bound to
pay with him. A, B and C are sureties to D for the sum of Rs. 3,000 lent to E who makes
default in payment. A, B and C are liable, as between themselves to pay Rs. 1,000
each. If any one of them has to pay more than Rs.1,000 he can claim contribution from
the other two to reduce his payment to only Rs. 1,000. If one of them becomes
insolvent, the other two shall have to contribute the unpaid amount equally.
Discharge of Surety
A surety may be discharged from liability under the following circumstances:
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If the creditor does any act which is against the rights of the surety, or omits to do
an act which his duty to the surety requires him to do, and the eventual remedy of
the surety himself against the principal debtor is thereby impaired, the surety is
discharged.
If the creditor loses or parts with any security which at the time of the contract the
debtor had given in favour of the creditor, the surety is discharged to the extent of
the value of the security, unless the surety consented to the release of such
security by creditor in favour of the debtor. It is immaterial whether the surety was
or is aware of such security or not.
.
A bailment is a transaction whereby one person delivers goods to another person for
some purpose, upon a contract that they are, when the purpose is accomplished to be
returned or otherwise disposed of according to the directions of the person delivering
them.
The person who delivers the goods is called the bailor and the person to whom they
are delivered is called the bailee.
Bailment is a voluntary delivery of goods for a temporary purpose on the
understanding that they are to be returned in specie in the same or altered form. The
ownership of the goods remains with the bailor, the bailee getting only the possession.
Gratuitous Bailment
A gratuitous bailment is one in which neither the bailor nor the bailee is entitled to any
remuneration. Such a bailment may be for the exclusive benefit of the bailor, e.g., when A
leaves his dog with a neighbour to be looked after in A’s absence on a holiday. It may again
be for exclusive benefit of the bailee, e.g., where you lend your book to a friend of yours for a
week. In neither case any charge is made.
A gratuitous bailment terminates by the death of either the bailor or the bailee
For example, A lets out a motor-car for hire to B. A is the bailor and receives the hire
charges and B is the bailee and gets the use of the car. Where, A hands over his goods to
B, a carrier for carriage at a price, A is the bailor who enjoys the benefit of carriage and B is
the bailee who receives a remuneration for carrying the goods.
Duties of Bailee
The bailee must take as much care of the goods bailed to him as a man of ordinary
prudence would take under similar circumstances of his own goods of the same bulk,
quality and value as the goods bailed.
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The bailee is under a duty not to use the goods in an unauthorised manner or for
unauthorised purpose. If the does so, the bailor can terminate the bailment and claim
damages for any loss or damage caused by the unauthorised used.
He must keep the goods bailed to him separate from his own goods.
He must not set up an adverse title to the goods.
It is the duty of the bailee to return the goods without demand on the expiry of the
time fixed or when the purpose is accomplished. If he fails to return them, he shall be
liable for any loss, destruction or deterioration of the goods even without negligence on
his part.
In the absence of any contract to the contrary, the baliee must return to the bailor any
increase, or profits which may have accrued from the goods bailed; for example, when
A leaves a cow in the custody of B to be taken care of and the cow gets a calf, B is
bound is deliver the cow as well as the calf to A.
Types of Lien
Duties of bailor
The bailor must disclose all the known faults in the goods; and if he fails to do that, he
will be liable for any damage resulting directly from the faults..
It is the duty of the bailor to pay any extraordinary expenses incurred by the bailee.
For example, if a horse is lent for a journey, the expense of feeding the house would,
of course, subject to any special agreement be borne by the bailee. If however the
horse becomes ill and expenses have been incurred on its treatment, the bailor shall
have to pay these expenses.
The bailor is bound to indemnify the bailee for any cost or costs which the bailee may
incur because of the defective title of the bailor of the goods bailed.
Termination of bailment
Where the bailee wrongfully uses or dispose of the goods bailed, the bailor may
determine the bailment.
As soon as the period of bailment expires or the object of the bailment has been
achieved, the bailment comes to an end, and the bailee must return the goods to the
bailor.
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Pledge
Since pledge is a branch of bailment, the pawness is bound to take reasonable care of the
goods pledged with him. Any kind of goods, valuables, documents or securities may be
pledged. The Government securities, e.g., promissory notes must, however, be pledged by
endorsement and delivery.
LAW OF AGENCY
An agent is a person who is employed to bring his principal into contractual relations with
third-parties. But during the period that an agent is acting for his principal, he is clothed with
the capacity of his principal.
(a) Express Agency: A contract of agency may be made orally or in writing. The usual
form of written contract of agency is the Power of Attorney, which gives him the
authority to act on behalf of his principal in accordance with the terms and conditions
therein.
In an agency created to transfer immovable property, the power of attorney must be
registered. A power of attorney may be general, giving several powers to the agent,
or special, giving authority to the agent for transacting a single act.
(b) Implied Agency: Implied agency may arise by conduct, situation of parties or necessity
of the case.
(i) Agency by Estoppel
(ii) Wife as agent
(iii) Agency of Necessity
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Classes of Agents
Agents may be special or general or, they may be mercantile agents:
General Agent: A general agent is appointed to do anything within the authority given
to him by the principal in all transactions, or in all transactions relating to a specified
trade or matter. The third- party may assume that such an agent has power to do all
that is usual for a general agent to do in the business involved. The third party is not
affected by any private restrictions on the agents authority.
Sub-Agent
A person who is appointed by the agent and to whom the principal’s work is delegated to
known as sub- agent.
Mercantile Agents
“A mercantile agent having in the customary course of business as such agent authority
either to sell goods or consign goods for the purposes of sale, or to buy goods, or to raise
money on the security of goods”. This definition covers factors, brokers, auctioneers,
commission agents etc.
Factors
A factor is a mercantile agent employed to sell goods which have been placed in his
possession or contract to buy goods for his principal. He is the apparent owner of the goods
in his custody and can sell them in his own name and receive payment for the goods. He
has an insurable interest in the goods and also a general lien in respect of any claim he may
have arising out of the agency.
Brokers
A broker is a mercantile agent whose ordinary course of business is to make contracts with
other parties for the sale and purchase of goods and securities of which he is not entrusted
with the possession for a commission called brokerage. He acts in the name of principal. He
has no lien over the goods as he is not in possession of them.
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Auctioneers
An auctioneer is an agent who sells goods by auction, i.e., to the highest bidder in public
competition. He has no authority to warrant his principals title to the goods. He is an agent for
the seller but after the goods have been knocked down he is agent for the buyer also for the
purpose of evidence that the sale has taken place.
Partners
In a partnership firm, every partner is an agent of the firm and of his co-partners for the
purpose of the business of the firm.
Bankers
The relationship between a banker and his customer is primarily that of debtor and creditor.
In addition, a banker is an agent of his customer when he buys or sells securities, collects
cheques dividends, bills or promissory notes on behalf of his customer. He has a general lien
on all securities and goods in his possession in respect of the general balance due to him by
the customer.
An agent must act within the scope of the authority conferred upon him and carry out
strictly the instructions of the principal.
in the absence of express instructions, he must follow the custom prevailing in the
same kind of business at the place where the agent conducts the business.
He must do the work with reasonable skill and diligence whereby the nature of his
profession, the agent purports to have special skill, he must exercise the skill which is
expected from the members of the profession.
He must disclose promptly any material information coming to his knowledge which is
likely to influence the principal in the making of the contract.
He must not disclose confidential information entrusted to him by his principal.
He must not allow his interest to conflict with his duty, e.g., he must not compete with
his principal.
The agent must keep true accounts and must be prepared on reasonable notice to
render an account.
He must not make any secret profit; he must disclose any extra profit that he may
make.
An agent must not delegate his authority to sub-agent. A sub-agent is a person
employed by and acting under the control of the original agent in the business of
agency.
Rights of Agents
Where the services rendered by the agent are not gratuitous or voluntary, the agent is
entitled to receive the agreed remuneration, or if none was agreed, a reasonable
remuneration. The agent becomes entitled to receive remuneration as soon as he has
done what he had undertaken to do.
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Certain classes of agents, e.g., factors who have goods and property of their principal
in their possession, have a lien on the goods or property in respect of their
remuneration and expense and liabilities incurred. He has a right to stop the goods in
transit where he is an unpaid seller.
As the agent represents the principal, the agent has a right to be indemnified by the
principal against all charges, expenses and liabilities properly incurred by him in the
course of the agency.
If an agent commits a tort or other wrong (e.g., misrepresentation or fraud) during his
agency, whilst acting within the scope of his actual or apparent authority, the principal is
liable. But the agent is also personally liable, and he may be sued also. The principal is liable
even if the tort is committed exclusively for the benefit of the agent and against the interests
of the principal.
Termination of Agency
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Where the authority of agency is one coupled with an interest, even the death or
insanity of the principal does not terminate the authority in this case.
When agent has incurred personal liability, the agency becomes irrevocable.
When the authority has been partly exercised by the agent, it is irrevocable in
particular with regard to obligations which arise from acts already done.
The conditions may differ according to the requirements. While drafting a foreign
collaboration agreement, the following factors should be kept in mind:
Capability of the collaborator and the requirements of the party are clearly indicated.
Clear definitions of technical terms are given.
Specify if the product shall be manufactured/sold on exclusive or non-exclusive basis.
Provisions for making available the engineers and/or skilled workers of the collaborator
on payment of expenses relating to their stay per diem etc. are given.
Details regarding specification and quality of the product to be manufactured are given.
Quality control and trademarks to be used are also specified.
Responsibility of the collaborator in establishing or maintaining assembly plants should
be clearly determined and provided for.
If sub-contracting of the work is involved, clarify if there would be any restrictions.
The rate of royalty, mode of calculation and payment etc. Also, make provision as to
who will bear the taxes/cess on such payments.
Use of information and industrial property rights should also be provided for in the
agreement.
A clause on force majeure should be included.
A comprehensive clause on arbitration containing a clear provision as to the kind of
arbitrator and place of arbitration should be included.
There should be provision in the agreement for payment of interest on delayed
payments.
E-CONTRACT
Electronic contracts are not paper based but rather in electronic form are born out of the
need for speed, convenience and efficiency. The conventional law relating to contracts is not
sufficient to address all the issues that arise in electronic contracts. The Information
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Technology Act, 2000 solves some of the peculiar issues that arise in the formation and
authentication of electronic contracts
As in every other contract, an electronic contract also requires the following necessary
ingredients:
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Method of ADR
There are four methods of ADR:
Negotiation
Mediation
Conciliation
Arbitration
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Arbitrator
Arbitrator is a person who is appointed to determine differences and disputes between
two or more parties by their mutual consent.
The person who is appointed as arbitrator shall give the consent to Act as arbitrator.
The arbitrator must be absolutely disinterested and impartial
He is an extra- judicial tribunal whose decision is binding on the parties.
Any interest of the arbitrator either in one of the parties (or) in the subject matter is a
disqualification for the arbitrator.
The parties may appoint whomsoever they please to arbitrate on their dispute.
In certain cases, the court can appoint an arbitrator
Arbitral Tribunal
“Arbitral tribunal” means a sole arbitrator or a panel of arbitrators.
The Rajasthan High Court has held that mere existence of arbitration clause in agreement does
not bar jurisdiction of Civil Court automatically.
Court
“Court” means the Principal Civil Court of original jurisdiction in a district and
includes the High Court in exercise of its ordinary original civil jurisdiction, having
jurisdiction to decide the questions forming the subject matter of the arbitration,
but does not include any Civil Court of a grade inferior to principal Civil Court.
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APPOINTMENT OF ARBITRATORS
If parties have mentioned in agreement the procedure of appointment of arbitrator
otherwise
Arbitrator could be of any nationality
In case of arbitration with (3) arbitrators, each party shall appoint its own
arbitrator, and the (2) appointed arbitrator shall appoint a third arbitrator
If parties fail to appoint their arbitrator within (30) days, arbitrators shall
be appointed by SC or HC .
The parties are free to determine the number of arbitrators, but such number shall not
be an even number.
If they fail to determine the number of arbitrator, the Arbitral Tribunal consist of a sole
arbitrator.
Language of arbitration shall be subject to arbitration agreement –otherwise in English
Termination of arbitrator
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He becomes by law or by fact unable to perform his functions and he withdraws from
his office.
The parties agree to the termination of mandate.
He withdraws from his office.
Arbitrator can withdraw, if his appointment is challenged by one party and the challenge
is accepted by him or other party agrees to challenge.
The Arbitral Tribunal should treat the parties equally and each party should be given full
opportunity to present his case.
The parties to arbitration are free to agree on the procedure to be followed by the Arbitral
Tribunal.
If the parties do not agree to the procedure, the procedure will be as determined by the
Arbitral Tribunal.
Arbitral proceedings in respect of a particular dispute commences on the date on which a
request from one party to refer the dispute to arbitration is received by other party.
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Additional award
The Tribunal can also make additional award, if one party makes application with
notice to other party.
Request should be made within 30 days of receipt of award.
Tribunal can make additional award within 60 days from receipt of request.
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However, this period can be extended for further a period of 30 days on sufficient cause
Ad hoc arbitration
An ad hoc arbitration is one where parties have to determine all aspects of the
arbitration themselves - for example, the number of arbitrators, appointing those
arbitrators, the applicable law and the procedure for conducting the arbitration.
Ad hoc proceedings have the potential to be more flexible, faster and cheaper than
institutional proceedings.
Only National law is applicable.
No need to place the agreement to any institution.
It takes place when the parties of agreement are of same nation.
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Conciliation
Settlement agreement
The settlement agreement, it reached between the parties, shall be final and binding on the
parties.
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