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What is Arbitration ?

People have various conceptions about Arbitration. The very old concept about Arbitration was Panchaiti. It was a sort of undefined conception of people to settle their disputes, by referring to a person of their choice who would contact the parties and try to settle their disputes. This was an attempt to settle civil disputes by and through a private party or parties of their choice.

What type of powers are restrictions by Board?

1. sell, lease or otherwise dispose of the whole, or substantially the whole, of the undertaking of the company, or where the company owns more than one undertaking, of the whole, or substantially the whole, of any such undertaking

2. remit, or give time for the re-payment of, any debt due by a director except in the case or renewal or continuance of any advance made by a banking company to its director in the ordinary course of business

3. invest, otherwise than in trust securities, the amount of compensation received by the company in respect of compulsory acquisition of any such undertaking as is referred to in clause (a), or of any premises or properties used for any such undertaking and without which it cannot be carried on or can be carried on only with difficulty or only after a considerable time

4. borrow moneys, where the moneys to be borrowed together with the moneys already borrowed by the company, (apart from temporary loans obtained from the company’s bankers in the ordinary course of business) will exceed the aggregate of the paid-up capital of the company and its free reserves

5. contribute, to charitable and other funds not directly relating to the business of the company or the welfare of its employees, any amounts the aggregate of which will, in any financial year, exceed fifty thousand rupees, or five per cent of its average net profits during the three financial years immediately preceding, whichever is greater.

The resolutions under clause (d) and (e) above must specify the total amount upto which the Board may borrow or the total amount which may be contributed in a financial year.

Temporary loans mean loans repayable on demand or within 6 months from the date of the loan such as short term cash credit arrangements, the discounting of bills and the issue of other short term loans of a seasonal character, but does not include loans raised for the purpose of financial expenditure of a capital nature.

Any resolution passed by the company permitting any transaction such as is referred to in clause (a) may attach such conditions to the permission as may be specified in the resolution, including conditions regarding the use, disposal or investment of the sale proceeds which may result from the transaction:

The acceptance by a banking company, in the ordinary course of its business, of deposits of money from the public, repayable on demand, or otherwise, and withdrawable by cheque, draft, order or otherwise, shall not be deemed to be a borrowing of moneys by the banking company within the meaning of clause (d).

The Central Government may appoint such number of persons as the Company Law Board may, by order in writing, specify as being necessary to effectively safeguard the interests of the Company or its shareholders or public interests, to act as directors thereof for such period not exceeding 3 years on any one occasion as it deems fit if the Company Law Board :-

Where an order terminates, sets aside or modifies an agreement :-

Where an order makes any alteration in the memorandum or articles of a company, then, notwithstanding any other provision of this Act, the company shall not have power, except to the extent, if any permitted in the order, to make without the leave of the Company Law Board, any alteration whatsoever which is inconsistent with the order, either in the memorandum or in the articles.

Pending the making by it of a final order, the Company Law Board may, on the application of any party to the proceedings, make any interim order which it thinks fit for regulating the conduct of the company’s affairs, upon such terms and conditions as appear to it to be just and equitable.

Without prejudice to the generality of the powers of the Company Law Board, any under either section may provide for :-

The Central Government may itself apply to the Company law Board for an order, or cause an application to be made to the Company Law Board for such an order by any person authorised be it in this behalf.

The Company Law Board must give notice of every application made to it as above to the Central government, and shall take into consideration the representations, if any, made to it by that Government before passing a final order.

The following members of a company shall have the right to apply as above:-

Any members of a company who complain :-

Any members of a company who complain that the affairs of the company are being conducted in a manner prejudical to public interest or in a manner oppressive to any member or members may apply to the Company Law Board for an order for relief, provided such members have a right so to apply as given below.

A limited company may, if so authorised by its articles, by special resolution, alter its memorandum so as to render unlimited the liability of its directors or of any director or of its manager.

In a limited company, the liability of the directors or of any director or of the manager may ie generally limited to the amount of investment in shares of that company. However, if so provided by the memorandum, it may become unlimited.

No director of a company shall, in connection with the transfer to any persons of all or any of the shares in a company, being a transfer resulting from-

No director of a company shall, in connection with the transfer of the whole or any part of any undertaking of property of the company, receive any payment, by way of compensation for loss of office, or as consideration for retirement from office, or in connection with such loss or retirement

Payment may be made by a company, except in the cases specified below and subject to the limit specified, to a managing director or a director holding the office of manager or in the whole time employment of the company, by way of compensation for loss of office, or as consideration for retirement from office, or in connection with such loss or retirement.

Except with the previous consent of the company accorded by a special resolution :-

In the case of a public company, or a private company, which is a subsidiary of a public company, if the terms of any re-appointment or appointment of a managing or whole-time director, purport to increase or have the effect of increasing, whether directly or indirectly, the remuneration which the managing or whole-time director or the previous managing or whole-time director, as the case may be, was receiving immediately before such appointment, the or appointment shall not have any effect unless :-

What are the certain powers which are exercised by Board only at meeting?

1. the power to make calls on shares holders in respect of money unpaid on their shares

2. the power to issue debentures

3. the power to borrow moneys otherwise than on debentures

4. the power to invest the funds of the company

5. the power to make loans

However, the Board may, by a resolution passed at a meeting delegate to any committee of directors, the managing director, or the manager of the company or any other principal officer of the company or in the case of a branch office of the company, a principal officer of the branch office, the powers specified in clauses (c), (d) and (e), to the extent specified in the resolution and subject to such conditions as may be imposed.

Acceptance by a banking company in the ordinary course of its business of deposits of money from the public repayable on demand or otherwise and withdrawable by cheque, draft, order or otherwise or the placing of moneys on deposit by a banking company with another banking company on such conditions as the Board may prescribe, shall not be deemed to be borrowing of moneys or making of loans by a banking company for the purpose of these provisions.

These provisions also do not apply to borrowings by a banking company from other banking companies or from the Reserve Bank of India, the State Bank of India or any other banks.

In respect of dealings betwwen a company and its bankers, the exercise by the company of its powers to borrow money otherwise than on debentures shall mean the arrangement made by the company with its bankers for the borrowing of money by way of overdraft or cash credit or otherwise and not the actual day-to-day operation of overdrafts, cash credit or other accounts.

Every resolution delegating the power referred to in clause (c) ( the power to borrow moneys otherwise than on debentures ) shall specify the total amount outstanding at any one time up to which moneys may be borrowed by the delegate.

Every resolution delegating the power referred to in clause (d) (the power to invest the funds of the company ) shall specify the total amount up to which the funds may be invested, and the nature of the investments which may be made, by the delegate.

Every resolution delegating the power referred to in clause (e) (the power to make loans ) shall specify the total amount up to which loans may be made by the delegate, the purposes for which the loans may be made, and the maximum amount of loans which may be made for each such purpose in individual cases.

Nothing in this section be deemed to affect the right of the company in general meeting to impose restrictions and conditions on the exercise by the Board of any of the powers specified above.

What are the duty of directors and persons deemed to be directors to make disclosure of shareholdings?

Any such notice shall be given in writing, and if it is not given at a meeting of the Board, the person giving the notice shall take all reasonable steps to secure that it is brought up and read at the meeting of the Board next after it is given.

Any person who fails to comply with the above provisions shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to five thousand rupees, or with both

Every director of a company, must give notice to the company of such matters relating to himself as may be necessary for the purpose of enabling the company to company with the aforesaid provisions.

Every company shall keep a register showing, as respects each director of the company, the number, description and amount of any shares in, or debentures, of the company or any other body corporate, being the company’s subsidiary or holding company, or a subsidiary of the company’s holding company, which are held by him or in trust for him, or of which he has any right to become the holder whether on payment or not.

Every director, managing director, manager or secretary of any company, who is appointed to or relinquishes the office of director, managing director, manager of any other body corporate must within 20 days of his appointment or relinquishment, disclose to the company aforesaid the particulars relating to the office in the other body corporate and if he fails to do so, he shall be punishable with fine which may extend to five hundred rupees.

The register kept shall be open to the inspection of any member of the company without charge and of any other person on payment of one rupee for each inspection during business hours subject to such reasonable restrictions as the company may by its articles or in general meeting impost, so that not less than two hours in each day are allowed for inspection.

Every company shall keep at its registered office a register of its directors, managing director, manager and secretary, containing with respect to each of them the following particulars, that is to say:

Where a company :-

Every company shall keep a register in which all contracts or arrangements in which directors are interested are entered into giving detailed information on

No director of a company shall, as a director, take any part in the discussion of, or vote on, any contract or arrangement entered into, or to be entered into, by or on behalf of the company, if he is in any way, whether directly or indirectly, concerned or interested in the contract or arrangement.

Every director of a company who is in any way, whether directly or indirectly concerned or interested in a contract or arrangement, or proposed contract or arrangement entered into or to be entered into, by or on behalf of the company, shall disclose the nature of his concern or interest at a meeting of the Board of directors.

Except with the consent of the Board of directors, a director of the company or his relative, a firm in which such a director or relative is a partner, any other partner in such a firm, or a private company of which the director is a member or director, shall not enter into any contract with the company

Notice of meetings

Every officer of the company whose duty it is to give notice as aforesaid and who fails to do so shall be punishable with fine which may extend to one hundred rupees.

 Quorum for meetings

Provided that where at any time the number of interested directors exceeds or is equal to two-thirds of the total strength, the number of the remaining directors, that is to say, the number of the directors who are not interested, present at the meeting being not less than 2 shall be the quorum during such time.

Interested director means any director whose presence cannot, by reason of his being interested in some manner in the subject matter of discussion be counted for the purpose of forming a quorum at a meeting of the Board, at the time of the discussion or vote on any matter.

Procedure where meeting adjourned for want of quorum

Passing or resolutions by circulation 

Validity of acts of directors

What points should be included in the Register of Director’s shareholdings?

Where any shares or debentures have to be recorded in the said register or to be omitted therefrom, in relation to any director, by reason of a transaction entered into and while he is a director, the register shall also show the date of, and the price or other consideration for, the transaction.

However, where there is an interval between the agreement for any such transaction and the completion thereof, the date so shown shall be that of the agreement.

The nature and extent of any interest or right in or over any shares or debentures recorded in relation to a director in the said register shall, if he so requires, be indicated in the register.

The said register shall, subject to the provisions of this section, be kept at the registered office of the company, and shall be open to inspection during business hours (subject to such reasonable restrictions as the company may, by its articles or in general meeting, impost so that not less than two hours in each day are allowed for inspection) as follows:-

during the period beginning fourteen days before the date of the company’s annual general meeting and ending three days after the date of its conclusion, it shall be open to the inspection of any member of holder of debentures, of the company; and

during that or any other period, it shall be open to the inspection of any person acting on behalf of the Central Government or of the Registrar.

In computing the fourteen days and the three days mentioned above, any day which is a Saturday, a Sunday or a public holiday shall be disregarded.

The Central Government or the Registrar may, at any time, require a copy of the said register, or any part thereof.

The said register shall also be produced at the commencement of every annual general meeting of the company and shall remain open and accessible during the continuance of the meeting to any person having the right to attend the meeting.

How should the Register of Directors be maintained?

1.in the case of an individual, his present name and surname in full, any former name or surname in full, his father’s name and surname in full or where the individual is a married woman, the husband’s name and surname in full, his usual residential address; his nationality; and, if that nationality is not the nationality of origin, his nationality of origin; his business occupation, if any; if he holds the office of director, managing director, manager or secretary in any other body corporate, the particulars of each such office held by him; and except in the case of a private company which is not a subsidiary of a public company, the date of his birth

2. in the case of a body corporate, its corporate name and registered or principal official and the full name, address, nationality, and nationality of origin, if different from that nationality, his father’s name and surname in full or where the director is a married woman, the husband’s name and surname in full of each of its directors; and if it holds the office of manger or secretary in any other body corporate, the particulars of each such office

3. in the case of a firm, the name of the firm, the full name, address, nationality, and nationality of origin, if different from that nationality, his father’s name and surname in full or where the partner is a married woman, the husband’s name and surname in full of each partner; and the date on which each became a partner; and if the firm holds the office of manager or secretary in any other body corporate, the particulars of each such officer

4. if any director or directors have been nominated by a body corporate; its corporate name; all the particulars referred to in clause (a) in respect of each director so nominated, and also all the particulars referred to in clause (b) in respect of the body corporate

5. if any director or directors have been nominated by a firm, the name of the firm, all the particulars referred to in clause (a) in respect of each director so nominated, and also all the particulars referred to in clause (c) in respect of the firm

The company shall, within the prescribed periods send to the Registrar a return in duplicate in the prescribed form ( form 32 ) within 30 days of appointment containing the particulars specified in the said register and a notification in duplicate in the prescribed form within 30 days of any change among its directors, managing directors or in any of the particulars contained in the register, specifying the date of the change.

If default is made in complying, the company, and every officer of the company who is in default, shall be punishable with fine which may extend to fifty rupees for every day during which the default continues. 

Inspection of the register

If any inspection is refused :-

1. the company, and every officer of the company who is in default, shall be punishable with fine which may extend to fifty rupees; and

2. the court may, by order, compel an immediate inspection of the register.

When shall the Disclosure of interests be made by director?

1. In the case of a proposed contract or arrangement, the disclosure required to be made by a director shall be made at the meeting of the Board at which the question of entering into the contract or arrangement is first taken into consideration, or if the director was not, at the date of that meeting, concerned or interested in the proposed contract or arrangement, at the first meeting of the Board held after he comes so concerned or interested.

2. In the case of any other contract or arrangement, the required disclosure shall be made at the first meeting of the Board held after the director becomes concerned or interested in the contract or arrangement.

3. A general notice given to the Board by a director, to the effect that he is a director or a member of a specified body corporate or is a member of a specified firm and is to be regarded as concerned or interested in any contract or arrangement which may, after the date of the notice, be entered into with that body corporate or firm, shall be deemed to be a sufficient disclosure of concern or interest in relation to any contract or arrangement so made.

4. Any such general notice shall expire at the end of the financial year in which it is give, but may be renewed for further periods of one financial year at a time, by a fresh notice given in the last month of the financial year in which it would otherwise expire (Form 24 AA).

5. No such general notice, and no renewal thereof, shall be of effect unless either it is given at a meeting of the Board, or the director concerned takes reasonable steps to secure that it is brought up and read at the first meeting of the Board after it is given.

Every director who fails to comply with the aforesaid provisions shall be punishable with fine which may extend to five thousand rupees.

Nothing in these provisions shall be taken to prejudice or adversely affect the operation of any rule of law restricting a director of a company from having any concern or interest in any contracts or arrangements with the company.

Nothing in these provisions shall apply to any contract or arrangement entered into or to be entered into between two companies where any of the directors of one company or two or more of them together hold not more than 2 % of the paid up capital in the other company. 

Interested director not to participate or vote in Boards proceedings

Nor shall his presence count for the purpose of forming a quorum at the time of any such discussion or vote and if he does vote, his vote shall be void.

The above provision shall not apply to :-

1. a private company which is neither a subsidiary not a holding company of a public company

2. a private company which is a subsidiary of a public company, in respect of any contract or arrangement entered into, or to be entered into, by the private company with the holding company thereof

any contract of indemnity against any loss which the directors, or any one or more of them, may suffer by reason of becoming or being sureties or a surety for the company

any contract or arrangement entered into or to be entered into with a public company, or a private company which is a subsidiary of a public company, in which the interest of the director aforesaid consists solely :- 

1. in his being a director of such company and the holder of not more than the qualification shares

2. in his being a member holding not more than 2 % of its paid-up share capital

3. a public company, or a private company which is subsidiary of a public company, in respect of which a notification is issued, to the extent specified in the notification.

In the case of a public company or a private company which is a subsidiary of a public company, if the Central government is of opinion that having regard to the desirability of establishing or promoting any industry, business or trade, it would not be in the public interest to apply all or any or the prohibitions contained above to the company, the Central Government may, by notification in the Official Gazette, direct that the said provisions shall not apply to such company, or shall apply thereto subject to such exceptions, modifications and conditions as may be specified in the notification.

Every director who knowingly contravenes the provisions of this section shall be punishable with fine which may extend to five thousand rupees.

 Registrar of contracts, companies and firms in which directors are interested

1. the date of the contract or arrangement

2. the names of the parties thereto

3. the principal terms and conditions thereof

4. the date on which it was placed before the Board

5. the names of the directors voting for and against the contract or arrangement and the names of those remaining neutral. 

Particulars of every such contract or arrangement shall be entered in the register aforesaid within

7 days ( exclusive of public holidays ) of the meeting of the Board where approval of the board is required

7 days of the receipt of the particulars of such contract or arrangement at the registered office of the company or within 30 days of the date of such other contract or arrangement, whichever is later.

The register must be placed before the next meeting of the Board and must then be signed by all the directors present at that meeting.

The register must also specify in relation to each director of the company, the names of the bodies corporate and firms of which notice has been given by him wherein he has interest.

The above provisions do not apply to :-

any contract or arrangement for the sale, purchase or supply of any goods, materials or services if the value does not exceed Rs. 1000/- per annum

Any contract or arrangement by a banking company for the collection of bills in the ordinary course of its business or to any transaction with the director, , relative, firm, partner or private company as aforesaid in the ordinary course of its business.

If default is made in complying with the aforesaid provisions, the company, and every officer of the company who is in default, shall, in respect of each default, be punishable with fine which may extend to five hundred rupees.

The register aforesaid shall be kept at the registered office of the company, and it shall be open to inspection at such office, and extracts may be taken therefrom and copies thereof may, be required, by any member of the company to the same extent, in the same manner, and on payment of the same fee, as in the case of the register of members of the company. 

Disclosure to members of directors interest in contract appointing manager, managing director

enters into a contract for the appointment of a manager of the company, in which contract and director of the company is in any way, whether directly or indirectly, concerned or interested or

varies any such contract already in existence and in which a director is concerned or interested as aforesaid

the company shall, within twenty-one days from the date of entering into the contract or of the varying of the contract, as the case may be, send to every member of the company as abstract of the terms of the contract of variation, together with a memorandum clearly specifying the nature of the concern or interest of the director in such contract or variation.

Where a company enters into a contract for the appointment of a managing director of the company, or varies any such contract which is already in existence, the company shall send an abstract of the terms of the contract or variation to every member of the company within within twenty-one days from such date and if any other director of the company is concerned or interested in the contract or variation, a memorandum clearly specifying the nature of the concern or interest of such other director in the contract or variation shall also be sent to every member of the company with the abstract aforesaid.

Where a director becomes concerned or interested as aforesaid in any such contract as is referred to above after it is made, the abstract and the memorandum, if any, referred to above shall be sent to every member of the company within twenty-one days from the date on which the director becomes so concerned or interested.

If default is made in complying with the foregoing provisions of this section, the company, and every officer of the company who is in default, shall be punishable with fine which may extend to one thousand rupees.

All contracts entered into by a company for the appointment of a manager, or managing director, shall be kept at the registered office of the company; and shall be open to the inspection of any member of the company at such office; and extracts may be taken therefrom and copies thereof may be required by any such member, to the same extent, in the same manner and on payment of the same fee, as in the case of the registrar of members of the company.

The provisions of this section shall apply in relation to any resolution of the Board of directors of a company appointing a manager or a managing or whole-time director, or varying and previous contract or resolution of the company relating to the appointment of a manager or a managing or whole time director, as they apply in relation to any contract for the like purpose.

What should be the minimum period for meeting of board?

Board to meet once in every three months. 

Boards sanction to be required for certain contracts in which particular directors are interested

for the sale, purchase or supply of any goods, materials or services

for underwriting the subscription of any shares in, or debentures of, the company.

In case of a company having paid up share capital of at least Rs. 1 crore, no such contract can be entered into by the company without the previous approval of the Central Government.

However, the above provision will not affect:-

the purchase of goods and materials from the company or the sale of goods and materials to the company by any director, relative, firm, partner or private company as aforesaid for cash at prevailing market prices.

any contract or contracts between the company on one side and any such director, relative, firm, partner or private company on the other for the sale, purchase or supply of any goods, materials or services in which either the company, or the director, firm, partner of private company, as the case may be regularly, trades or does business, provided that such contract or contracts do not relate to goods and materials the value of which or services, the cost of which exceeds five thousand rupees in the aggregate in any calendar year comprised in the period of the contract or contracts

in the case or a banking or insurance company, any transaction in the ordinary course of business of such company with any director, relative, firm, partner or private company.

A director, relative, firm, partner or private company may enter into a contract with the company for the sale, purchase or supply of any goods, materials or services even if the value exceeds Rs. 5000/- and the approval of the Board is not obtained in cases of urgent necessity. However, approval of the Board must be obtained at a meeting within 3 months of the date on which the contract was entered into.

Every consent of the Board under these provisions must be by a resolution passed at a meeting of the Board and either before the contract was entered into, or within 3 months of the date on which it was entered into.

Where such consent is not accorded to the contract, the contract shall be voidable at the option of the Board Procedure, etc, where director interested

What about Disclosure of Director’s Interest & Loans to directors?

No company, without obtaining the prior approval of the Central Government in this behalf, can make any loan to, or give any guarantee or provide any security in connection with a loan made by any other person, to or to any other person by,-

1. any director of the lending company or of a company which is its holding company or any partner or relative of any such director

2. any firm in which any such director or relative is a partner

3. any private company of which any such director is a director or member

4. any body corporate at a general meeting of which not less than twenty five percent of the total voting power may be exercised or controlled by any such director, or by two or more such directors together

5. any body corporate, the Board of directors, managing director, or manager whereof is accustomed to act in accordance with the directions or instructions of the Board, or of any director or directors, of the lending company.

The above provision shall not apply to any loan made, guarantee given or security provided-

1. by a banking company

2. by a private company unless it is a subsidiary of a public company

3. The above provision shall not apply to any loan made by a holding company to its subsidiary.

4. The above provision shall not apply to guarantee given or security provided by a holding company in respect of a loan made to its subsidiary.

Every person who is knowingly a party to any contravention of the aforesaid provisions, including in particular any person to whom the loan is made or who has taken the loan in respect of which the guarantee is given or the security is provided, shall be punishable either with fine which may extend to five thousand rupees or with simple imprisonment for a term which may extend to six months:

However, where any such loan, or any loan in connection with which any such guarantee or security has been given or provided by the lending company, has been repaid in full, no punishment by way of imprisonment shall be imposed.

Where the loan has been re-paid in part, the maximum punishment which may be imposed by way of imprisonment shall be proportionately reduced.

All persons who are knowingly parties to any contravention of the afoesaid provisions shall be liable jointly and severally, to the lending company for the repayment of the loan or for making good the sum which the lending company may have been called upon to pay in virtue of the guarantee given or the security provided by such company.

The above provisions will also apply to any transaction represented by a book debt which was from its inception in the nature of a loan or advance.

No debt incurred by the company in excess of the limit imposed by clause by clause (d) shall be valid or effectual, unless the lender proves that he advanced the loan in good faith and without knowledge that the limit imposed by that clause had been exceeded

Shall the Company Law Board has the power to prevent change in Board of directors ?

Any such order shall have effect notwithstanding anything to the contrary contained in any other provision of this Act or in the memorandum or articles of the company, or in any agreement with, or any resolution passed in general meeting by, or by the Board of directors or, the company.

The Company Law Board shall have power when any such complaint is received by it, to make an interim order to the effect set out above, before making or completing the inquiry aforesaid.

Nothing contained above shall apply to a private company, unless it is a subsidiary of a public company

Where a complaint is made to the Company Law Board by the managing director or any other director or the manager of a company that, as a result of a change which has taken place or is likely to take place in ownership or any shares held in the company, a change in the Board of directors is likely to take place which (if allowed) would affect prejudicially the affairs of the company, the Company Law Board may, if satisfied, after such inquiry as it thinks fit to make that it is just and proper to do so, by order direct that no resolution passed or that may be passed or no action taken or may be taken to effect a change in the Board of directors after the date of the complaint shall have effect unless confirmed by the Company Law Board. 

Where an order terminates, sets aside or modifies an agreement :-

The Central Government may appoint such number of persons as the Company Law Board may, by order in writing, specify as being necessary to effectively safeguard the interests of the Company or its shareholders or public interests, to act as directors thereof for such period not exceeding 3 years on any one occasion as it deems fit if the Company Law Board :- 

Where an order makes any alteration in the memorandum or articles of a company, then, notwithstanding any other provision of this Act, the company shall not have power, except to the extent, if any permitted in the order, to make without the leave of the Company Law Board, any alteration whatsoever which is inconsistent with the order, either in the memorandum or in the articles. 

Pending the making by it of a final order, the Company Law Board may, on the application of any party to the proceedings, make any interim order which it thinks fit for regulating the conduct of the company’s affairs, upon such terms and conditions as appear to it to be just and equitable.

Without prejudice to the generality of the powers of the Company Law Board, any under either section may provide for :-

The Central Government may itself apply to the Company law Board for an order, or cause an application to be made to the Company Law Board for such an order by any person authorised be it in this behalf. 

The Company Law Board must give notice of every application made to it as above to the Central government, and shall take into consideration the representations, if any, made to it by that Government before passing a final order. 

The following members of a company shall have the right to apply as above:-

Any members of a company who complain :-

1. Any members of a company who complain that the affairs of the company are being conducted in a manner prejudical to public interest or in a manner oppressive to any member or members may apply to the Company Law Board for an order for relief, provided such members have a right so to apply as given below. 

2. A limited company may, if so authorised by its articles, by special resolution, alter its memorandum so as to render unlimited the liability of its directors or of any director or of its manager. 

3. In a limited company, the liability of the directors or of any director or of the manager may ie generally limited to the amount of investment in shares of that company. However, if so provided by the memorandum, it may become unlimited. 

4. No director of a company shall, in connection with the transfer to any persons of all or any of the shares in a company, being a transfer resulting from- 

5. No director of a company shall, in connection with the transfer of the whole or any part of any undertaking of property of the company, receive any payment, by way of compensation for loss of office, or as consideration for retirement from office, or in connection with such loss or retirement 

6. Payment may be made by a company, except in the cases specified below and subject to the limit specified, to a managing director or a director holding the office of manager or in the whole time employment of the company, by way of compensation for loss of office, or as consideration for retirement from office, or in connection with such loss or retirement. 

Except with the previous consent of the company accorded by a special resolution :-

In the case of a public company, or a private company, which is a subsidiary of a public company, if the terms of any re-appointment or appointment of a managing or whole-time director, purport to increase or have the effect of increasing, whether directly or indirectly, the remuneration which the managing or whole-time director or the previous managing or whole-time director, as the case may be, was receiving immediately before such appointment, the or appointment shall not have any effect unless :- 

In the case of a public company, or a private company which is a subsidiary of a public company, any provision relating to the remuneration of any director or any amendment thereof, which purports to increase or has the effect of increasing, whether directly or indirectly, the amount of remuneration shall not have any effect unless :

In which situation the Central Government has the power to prevent oppression or mismanagement?

1. on a reference being made to it by the Central Government ; or

2. on an application of not less than one hundred members of the company or of members of the company holding not less than one-tenth of the total voting power therein,

is satisfied, after such inquiry as it deems fit to make, that it is necessary to make the appointment or appointments in order to prevent the affairs of the company being conducted either in a manner which is oppressive to any members of the company or in a manner which is prejudicial to the interests of the company or to public interest.

However, in lieu of passing order as aforesaid, the Company Law Board may, if the company has not availed itself of the option given to it of proportional representation to minority shareholders on the Board of the company, direct the company to amend its articles in the manner provided section 265 and make fresh appointments of directors in pursuance of the articles as so amended within such time as may be specified in that behalf by the Company Law Board.

In case the Central Government passes such an order it may, if thinks fit, direct that until new directors are appointed in pursuance of the order aforesaid, not more than two members of the company specified by the Company law Board shall hold office as additional directors of the company. The Central Government shall appoint such additional directors on such directions.

The person appointed as a director by the Central Government in accordance with the above provisions, need not hold any qualification shares nor need to retire by rotation. However, his office as director may be terminated at any time by the Central Government and another person appointed in his place.

No change in the constitution of the Board of Directors can take place after an additional director is appointed by the Central Government in accordance with these provisions unless approved by the Company Law Board.

The Central Government in such cases may also issue such directions to the company as it may consider necessary or appropriate in regard to its affairs.

What are the Consequences of termination or modification of certain agreements?

1. the order shall not give rise to any claim whatever against the company by any person for damages or for compensation for loss of office or in any respect, either in pursuance of the agreement or otherwise;

2. no managing or other director or manager whose agreement is so terminated or set aside, shall for a period of five years from the date of the order terminating the agreement, without the leave of the Company Law Board, be appointed, or act, as the managing or other director or manager of the company.

Any person who knowingly acts as a managing or other director or manager of a company in contravention of the above provision, every director of the company, who is knowingly a party to such contravention shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both.

The Company Law Board will not grant leave for appointment as managing director or director or manager of the company unless notice of the intention to apply for leave has been served on the Central Government and that Government has been given an opportunity of being heard in the matter.

What is the Effect of alteration of memorandum or articles of company by order?

The alterations made by the order shall, in all respects, have the same effect as if they had been duly made by the company in accordance with the provisions of this Act.

A certified copy of every order altering or giving leave to alter, a company’s memorandum or articles, must within thirty days after the making thereof, be filed by the company with the Registrar who shall registrar the same.

If default is made in complying with the above provisions, the company, and every officer of the company who is in default, shall be punishable with fine which may extend to five thousand rupees.

What are the Powers of Company Law Board on application?

1. the regulation of the conduct of the company’s affairs in future;

2. the purchase of the shares or interests of any members of the company by other members thereof or by the company;

3. in the case of a purchase of its shares by the company as aforesaid, the consequent reduction of its share capital;

the termination, setting aside or modification of any agreement, howsoever arrived at, between the company on the one hand, and any of the following persons, on the other namely:-

 a) the managing director,

b) any other director,

c) the manager,

upon such terms and conditions as may, in the opinion of the Company Law Board, be just and equitable in all the circumstances of the case;

1. the termination, setting aside or modification of any agreement between the company and any person not referred to in clause (d), provided that no such agreement shall be terminated, set aside or modified except after due notice to the party concerned and provided further that no such agreement shall be modified except after obtaining the consent of the party concerned;

2. the setting aside of any transfer, delivery of goods, payment, execution or other act relating to property made or done by or against the company within three months before the date of the application, which would, if made or done by or against an individual, be deemed in his insolvency to be a fraudulent preference;

3. any other matter for which in the opinion of the Company Law Board it is just and equitable that provision should be made.

When a company has the Right to apply to the Company Law Board?

1. in the case of a company having a share capital, not less than one hundred members of the company or not less than one tenth of the total number of its members, whichever is less, or any member or members holding not less than one-tenth of the issued share capital of the company, provided that the applicant or applicants have paid all calls and other sums due on their shares;

2. in the case of a company not having a share capital, not less than one-fifth of the total number of its members.

Where any share or shares are held by two or more persons jointly, they shall be counted only as one number.

Where any members of a company, are entitled to make an application, any one or more of them having obtained the consent in writing of the rest, may make the application on behalf and for the benefit of all of them.

The Central Government may, if in its opinion circumstances exist which make it just and equitable so to do, authorise any member or members of the company to apply to the Company Law Board, notwithstanding that the above requirements for application are not fulfilled.

The Central Government may, before authorising any member or members as aforesaid, require such member or members to give security for such amount as the Central Government may deem reasonable, for the payment of any costs which the Court dealing with the application may order such member or members to pay to any other person or persons who are parties to the application.

If the managing director or any other director, or the manager, of a company or any other person, who has not been impleaded as a respondent to any application applies to be added as a respondent thereto, the Company Law Board may, if it is satisfied that there is sufficient cause for doing so, direct that he may be added as a respondent accordingly.

Can a company Apply to Court for relief in cases of mismanagement?

1. that the affairs of the company are being conducted in a manner prejudicial to public interest or in a manner prejudicial to the interests of the company; or

2. that a material change has taken place in the management or control of the company, whether by an alteration in its Board of directors, or manager or in the ownership of the company’s shares, or if it has no share capital, in its membership, or in any other manner whatsoever, and that by reason of such change, it is likely that the affairs of the company will be conducted in a manner prejudicial to public interest or in a manner prejudicial to the interests of the company;

may apply to the Company Law Board for an order of relief provided such members have a right so to apply as given below.

If, on any such application, the Company Law Board is of opinion that the affairs of the company are being conducted as aforesaid or that by reason of any material change as aforesaid in the management or control of the company, it is likely that the affairs of the company will be conducted as aforesaid, the court may, with a view to bringing to an end or preventing the matters complained of or apprehended, make such order as it thinks fit.

Can a company apply to the Company Law Board for relief in cases of oppression?

If, on any application, the Company Law Board is of the opinion :-

a) that the company’s affairs are being conducted in a manner oppressive to any member or members; and

b) that to wind up the company would unfairly prejudice such member or members and would be a very serious step, but that otherwise the facts would justify the making of a winding-up order on the ground that it was just and equitable that the company should be would up;

the Company Law Board may, with a view to bringing to an end the matters complained of, make such order as it thinks fit.

What is the Special resolution of limited company to make liability of directors unlimited?

However no alteration of the memorandum making the liability of any of the officers unlimited shall apply to such officer, if he was holding the office from before the date of the alteration, until the expiry of his then term, unless he has accorded his consent to his liability becoming unlimited.

Tell about the liability of a Director in a Limited Compancy?

In a limited company in which the liability of a director or manager is unlimited, the directors, and the manager of the company, and the member who proposes a person for appointment, to the office of director or manager, shall add to that proposal a statement that the liability of the person holding that office will be unlimited and before the person accepts the office or acts therein, notice in writing that his liability will be unlimited, shall be given to him.

If any director, manager or proposer makes default in adding such a statement, or if any promoter, director, manager or officer of the company makes default in giving such a notice, he shall be punishable with fine which may extend to one thousand rupees and shall also be liable for any damage which the person so appointed may sustain from the default; but the liability of the person appointed shall continue to remain unlimited.

What should be the Payment to director for loss of office, etc., in connection with transfer of shares?

1. an offer made to the general body of shareholders;

2. an offer made by or on behalf of some other body corporate with a view to the company becoming a subsidiary of such body corporate or a subsidiary of its holding company;

3. an offer made by or on behalf of an individual with a view to his obtaining the right to exercise, or control the exercise of, not less than one-third of the total voting power at any general meetings of the company; or

4. any other offer which is conditional on acceptance to a given extent;

5. receive any payment by way of compensation for loss of office, or as consideration for retirement from office, or in connection with such loss or retirement,-from such company; or

from the transferees of the shares or from any other person except as provided below.

It shall be the duty of the director concerned to take all reasonable steps to secure that details with respect to the payment proposed to be made by the transferees or other person (including the amount thereof) are sent with, any notice of the offer made for their shares which is given to any shareholders.

If :-

a) any such director fails to take reasonable steps as aforesaid; or

b) any person who has been properly required by any such director to include the said details in the aforesaid notice fails so to do;

he shall be punishable with fine which may extend to two hundred and fifty rupees.

If-

a) the above provisions are not complied with ; or

b) the making of the proposed payment is not, before the transfer of any shares in pursuance of the offer, approved by a meeting, called for the purpose ,of the concerned shareholders

any sum received by the director on account of the payment shall be deemed to have been received by him in trust for any persons who have sold their shares as a result of the offer made, and the expenses incurred by him in distributing that sum amongst those persons shall be borne by him and not retained out of that sum.

If at a meeting called for the purpose of approving any payment, a quorum is not present and, after the meeting has been adjourned to a later date, a quorum is again not present, the payment shall, be deemed to have been approved.

What should be the Payment to director for loss of office in connection with transfer of undertaking or property?

from such company; or

from the transferee of such undertaking or property or from any other person, unless particulars with respect to the payment proposed to be made by such transferee or person (including the amount thereof) have been disclosed to the members of the company and the proposal has been approved by the company in general meeting.

Where a director of a company receives payment of any amount in contravention of the above provisions, the amount shall be deemed to have been received by him in trust for the company.

What should be the Compensation for loss of office to directors?

However, such payment cannot be made by the company to any other director.

No payment shall be made to a managing or other director in the following cases :-

1. where the director resigns his office in view of the reconstruction of the company, or of its amalgamation with any other body corporate or bodies corporate, and is appointed as the managing director, manager or other officer of the reconstructed company or of the body corporate resulting from the amalgamation;

2. where the director resigns his office otherwise than on the reconstruction of the company or its amalgamation as aforesaid;

3. where the office of the director is vacated

4. where the company is being wound up, whether by or subject to the supervision of the Court or voluntarily, provided the winding up was due to the negligence or default of the director;

5. where the director has been guilty of fraud or breach of trust in relation to, or gross negligence in or gross mismanagement or, the conduct of the affairs of the company or any subsidiary or holding company thereof;

6. whether the director has instigated, or has taken part directly or indirectly in bringing about, the termination of his office.

Any such payment made to a managing or other director shall not exceed the remuneration which he would have earned if he had been in office for the unexpired residue of his term or for three years, whichever is shorter, calculated on the basis of the average remuneration actually earned by him during a period of three years immediately proceeding the date on which he ceased to hold the office, or where he held the office for a lesser period than three years, during such period.

No such payment shall be made to the director in the event of the commencement of the winding up of the company, whether before, or at any time within twelve months after, the date on which he ceased to hold office, if the assets of the company on the winding up, after deducting the expenses thereof , are not sufficient to repay to the share-holders the share capital (including the premiums, if any) contributed by them.

These provisions do not prohibit the payment to a managing director or a director holding the office of manager, of any remuneration for services rendered by him to the company in any other capacity.

Can a Director hold office or place of profit ?

No partner or relative of such a director ( i.e. a director holding an office or place of profit in the company ), no firm in which such a director or relative is a partner, no private company of which such a director is a director or member, and no director, or manger of such a private company can hold any office or place of profit carrying monthly remuneration in excess of the prescribed amount ( Rs. 10000/-).

However, the above restrictions are not applicable to the office of managing director, manager, banker, or trustee for the holders of debentures of the company either :-

a. in the company ; or

b. in any subsidiary of the company, unless the remuneration received from such subsidiary in respect of such office or place is paid over to the company or its holding company.

The special resolution required for the above purpose may be passed at the first general meeting after the appointment. Such special resolutions will required at subsequent re-appointments also on a higher remuneration not covered by the earlier special resolution.

However, if the monthly remuneration is not less than Rs. 20000/- per month, the special resolution mentioned above has to be obtained prior to the appointment and in addition to the special resolution, approval of the Central Government will also be required for the appointment.

If any office or place of profit under the company or a subsidiary thereof is held in contravention of the above provisions, the director, partner, relative, firm, private company or, manager shall be deemed to have vacated his office, with effect from the day following the date of general meeting mentioned above. Such person will also be liable to refund to the company any remuneration received, or the monetary equivalent of any perquisites or advantage enjoyed by him, in respect of such office or place of profit. The company will not be able to waive recovery of such amounts, except with the approval of the Central Government.

Any office or place in a company shall be deemed to be an office or place or profit under the company for these provisions :-

1. in case the office or place is held by a director, if the director holding it obtains from the company anything by way of remuneration over and above the remuneration to which he is entitled as such director, whether as salary, fees, commission, perquisites, the right to occupy free of rent any premises as a place of residence, or otherwise;

2. in case the office or place is held by an individual other than a director or by any firm, private company or other body corporate, if the individual, firm private company or body corporate holding it obtains from the company anything by way of remuneration whether as salary, fees, commission, perquisites, the right to occupy free of rent any premises as a place of residence, or otherwise.

None of the above provisions apply to a director appointed by the Central Government u/s 408 of the Companies Act, 1956

What should be the Increase in remuneration of managing director on reappointment or appointment after Act to require government sanction?

1. is within the limits specified in Schedule XIII, where Schedule XIII is applicable ; or

2. approved by the Central Government

and the amendment shall become void if, and in so far as, it is disapproved by the Government.1.

What are the provision for increase in remuneration to require Government sanction?

is within the limits specified in Schedule XIII, where Schedule XIII is applicable ; or

approved by the Central Government

and the amendment shall become void if, and in so far as, it is disapproved by the Government.

How the Remuneration of Directors be paid ?

The remuneration payable to the directors of a company, including any managing or whole-time director, shall be determined, in accordance the provisions given below either by the articles of the company, or by a resolution ( special resolution if the articles so require ), passed by the company in general meeting and the remuneration payable to any such director determined as per the said provisions shall be inclusive of the remuneration payable to such director for services rendered by him in any other capacity. However, any remuneration for services will not be so included if the services are of a professional nature and in the opinion of the Central Government, the director possesses the requisite qualifications.

A director may receive remuneration by way of fees for attending each meeting of the Board or of any committee thereof ( Sitting Fees ).

A director who is in whole time employment of the company or a managing director may be paid remuneration either by way of a monthly payment or at a specified percentage of net profits of the company or partly by one and partly by the other. Such remuneration cannot exceed 5 % of the net profits of the company, except with the approval of the Central Government in case of one director and 10 % for all such directors.

The total managerial remuneration payable by a public company or a private company which is a subsidiary of a public company to its directors and its manager in any financial year must not exceed 11 % of the net profits of the company calculated in accordance with the provisions of section 349, 350 and 351.

In the case of a director who is neither in the whole-time employment of the company nor a managing director may be paid remuneration either by way of a monthly, quarterly or annual payment with the approval of the Central Government or by way of commission if the company by special resolution authorises such payment. Such special resolution to in sub-section (4) shall not remain in force for a period of more than five years; but may be renewed, from time to time, by special resolution for further periods of not more than five years at a time. Remuneration payable to such directors cannot exceed :-

if the company has a managing or whole-time director or a manager, one per cent, of the net profits of the company;

in any other case, three percent of the net profits of the company.

If any director earns remuneration from a company in excess of the above limits without prior approval of the Central Government, he shall refund the excess to the company and until such repayment, hold the money in trust with him.

The Company cannot waive recovery of such sum due from the director unless approved by the Central Government.

No approval of the Central Government is required in case the remuneration is within the limits mentioned in Schedule XIII to the Companies Act, 1956.

No director of a company who is in receipt of any commission from the company and who is either in the whole-time employment of the company or a managing director shall be entitled to receive any commission or other remuneration from any subsidiary of such company.

The above provisions pertaining to remuneration do not apply to a private company unless it is a subsidiary of a public company.

What are the situations in which a company has the power to compromise or make arrangements with creditors and members?

Where a compromise or arrangements is proposed-

between a company and its creditors or any class or them; or

the Court may, on the application of the company or of any creditor or member of the company, or, in the case of a company which is being wound up, of the liquidator, order a meeting of the creditors or class of creditors, or of the members of class or members, as the case may be to be called, held and conducted in such manner in the court directs.

If 3/4 in value of the creditors, or class of creditors, or members or class of members, present and voting either in person or, where proxies are allowed, under rules made by the Court, by proxy, at the meeting, agree, to any compromise or arrangement, the compromise or arrangement shall, if sanctioned by the court, be binding on all the creditors, all the creditors of the class, all the members, or all the members of the class, as the case may be, and also, on the company, or, in the case of a company which is being would up, on the liquidator and contributories of the company.

The Court shall not approve of such a scheme unless it is satisfied that the Company or the applicant has disclosed to the Court all material facts relating to the company such as the latest financial position of the company, the latest auditor’s report, details of any investigation pending against the company, etc.

An order made by the Court shall have no effect until a certified copy of the order has been filed with the registrar.

A copy of every such order shall be annexed to every copy of the memorandum of the company issued after the certified copy of the order has been filed, as aforesaid.

If default is made in complying with the above provisions, the company, and every officer of the company who is in default, shall be punishable with fine which may extend to ten rupees for each copy in respect of which default is made.

The Court may, at any time after an application has been made to it under this section, stay the commencement or continuation of any suit or proceeding against the company on such terms as the Court thinks fit, until the application is finally disposed of.

An appeal shall lie from any order made by a Court exercising original jurisdiction under this section to the Court empowered to hear appeals from the decisions of that Court, or if more than one Court is so empowered to the Court of inferior jurisdiction.

Power of High Court to enforce compromises and arrangements

Where a High Court makes an order as above sanctioning a compromise or an arrangements in respect of a company, it-

shall have power to supervise the carrying out of the compromise or arrangement; and

may, at the time of making such order or at any time thereafter, give such directions in regard to any matter or make such modifications in the compromise or arrangement as it may consider necessary for the proper working of the compromise or arrangement.

If the Court aforesaid is satisfied that a compromise or arrangement sanctioned under the above provisions cannot be worked satisfactorily with or without modifications, it may, either on its own motion or on the application of any person interested in the affairs of the company, make an order winding up the company.

Information as to compromises or arrangements with creditors and members

Where a meeting of creditors, or any class of creditors, or of members or any class of members, is called: –

with every notice calling the meeting which is sent to a creditor or member, there shall be sent also a statement setting for the terms of the compromise or arrangement and explaining its effect; and in particulars, stating any material interests of the directors, managing director or manager of the company, whether in their capacity as such or as members or creditors of the company or otherwise, and the effect on those interest, of the compromise or arrangement, if, and in so far as, it is different from the effect on the like interests of other persons; and

in every notice calling the meeting which is given by advertisement there shall be included either such a statement as aforesaid or a notification of the place at which and the manner in which creditors or members entitled to attend the meeting may obtain copies of such a statement as aforesaid.

Where the compromise or arrangement affects the rights of debenture holders of the company, the said statement shall give the like information and explanation as respects the trustees of any deed for securing the issued of the debentures as it is required to give as respects the company’s directors.

Where a notice given by advertisement includes a notification that copies of a statement setting forth the terms of the compromise or arrangement proposed and explaining its effect can be obtained by creditors or members entitled to attend the meeting, every creditor or member so entitled shall, on making an application in the manner indicated by the notice, by furnished by the company, free of charge, with a copy of the statement.

Provisions for facilitating reconstruction and amalgamation of companies

Where an application is made to the Court as above for the sanctioning of a compromise or arrangement proposed between a company and any such persons as are mentioned in that section, and it is shown to the Court-

that the compromise or arrangement has been proposed for the purposes of , or in connection with, a scheme for the reconstruction of any company or companies, or the amalgamation of any two or more companies; and

that under the scheme the whole or any part of the undertaking, property or liabilities of any company concerned in the scheme is to be transferred to another company : –

the Court may, either by the order sanctioning the compromise or arrangement or by a subsequent order, make provision for all or any of the following matters:-

the transfer to the transferee company of the whole or any part of the undertaking, property or liabilities of any transferor company;

the allotment or appropriation by the transferee company of any shares, debentures, policies, or other like interests in that company which, under the compromise or arrangement, are to be allotted or appropriated by that company to or for any person;

the continuation by or against the transferee company of any legal proceedings pending by or against any transferor company;

the dissolution, without winding up, of any transferor company;

the provision to be made for any persons who, within such time and in such manner as the court directs, dissent from the compromise or arrangement; and

such incidental, consequential and supplemental matters as are necessary to secure that the reconstruction or amalgamation shall be fully and effectively carried out.

Where an order provides the transfer or any property or liabilities then, by virtue of the order, that property shall be transferred to and vest, and those liabilities shall be transferred to and become the liabilities of, the transferee company; and in the case of any property, it the order so directs, freed from any charge which is, by virtue of the compromise or arrangement, to cease to have effect.

Within fourteen days after the making of an order under this section, every company in relation to which the order is made shall cause a certified copy thereof to be filed with the Registrar for registration.

Power and duty to acquire shares of shareholders dissecting from scheme or contract approved by majority

Where a scheme or contract involving the transfer of shares or any class of shares in a company to another company has, within four months after the making of the offer in that behalf by the transferee company, been approved by the holders of not less than nine-tenths in value of the shares whose transfer is involved (other than shares already held at the date of the officer by, or by a nominee for, the transferee company or its subsidiary), the transferee company may, at any time within two months after the expiry of the said four months, give notice in the prescribed manner to any dissenting shareholder, that it desires to acquire his shares; and when such a notice is given, the transferee company, shall, unless, on an application made by the dissenting shareholder within one month from the date on which the notice was given, the Court thinks fit to order otherwise, be entitled and bound to acquire those shares on the terms on which, under the scheme or contract, the shares of the approving share holders are to be transferred to the transferee company.

However, where shares in the transferor company of the same class as the shares whose transfer is involved are already held as aforesaid to a value greater than one-tenth of the aggregate of the values of all the shares in the company of such class, the foregoing provisions shall not apply, unless :-

the transferee company offers the same terms to all holders of the shares of that class (other than those already held as aforesaid) whose transfer is involved; and

the holders who approve the scheme or contract, besides holding not less than nine-tenths in value of the shares (other than those already held as aforesaid) whose transfer is involved are not less than three-fourths in number of the holders of those shares.

Where, in pursuance of any such scheme or contract, as aforesaid, shares or shares of any class, in a company are transferred to another company or its nominee, and those shares together with any other shares or any other shares of the same class, as the case may be, in the first- mentioned company held at the date of the transfer by, or by a nominee for, the transferee company or its subsidiary comprise nine-tenths in value of the shares, or the shares of that class, as the case may be, in the first-mentioned company, then :-

the transferee company shall, within one month from the date of the transfer (unless on a previous transfer in pursuance of the scheme or contract it has already complied with this requirement) give notice of that fact in the prescribed manner to the holder so the remaining shares or of t remaining shares of that class, as the cast may be, who have not assented to the scheme or contract; and

any such holder may, within three months from the giving of the notice to him, require the transferee company to acquire the shares in question; and where a shareholder gives notice under clause (b) with respect to any shares, the transferee company shall be entitled and bound to acquire those shares on the terms on which, under the scheme or contract, the shares, of the approving shareholders were transferred to it, or on such other terms as may be agreed, or as the Court on the application of either the transferee company or the shareholder thinks fit to order.

Where a notice has been given by the transferee company and the Court has not, on an application made by the dissenting shareholder, made an order to the contrary, the transferee company shall, on the expiry of one month from the date on which the notice has been given, or, if an application to the Court by the dissenting shareholder is then pending, after that application has been disposed of, transmit a copy of the notice to the transferor company together with an instrument of transfer executed of behalf of the shareholder by any person appointed by the transferee company and on its own behalf by the transferee company, and pay or transfer to the transferor company the amount or other consideration representing the price payable by the transferee company for the shares which, by virtue of this section, that company is entitled to acquires; and the transferor company shall thereupon register the transferee company as the holder of those shares.

Any sums received by the transferor company shall be paid into a separate bank account, and any such sums and any other consideration so received shall be held by that company in trust for the several persons entitled to the shares in respect of which the said sums or other consideration were respectively received.

Power of Central Government to provide for amalgamation of companies in national interest

Where the Central Government is satisfied that it is essential in the natio

What does the term charge refers to in context of a company?

A charge means an interest or right which a lender or creditor obtains in the property of the company by way of security that the company will pay back the debt. Charges are of 2 types :-

1.Fixed Charge

2.Floating Charge

: Such a charge is against a specific clearly identifiable and defined property. The property under charge is identified at the time of creation of charge. The nature and identity of the property does not change during the existence of the charge. The company can transfer the property charged only subject to that charge so that the charge holder or mortgage must be paid first whatever is due to him before disposing off that property. : Such a charge is available only to companies as borrower. A Floating charge does attach to any definite property but covers the property of a circulating and fluctuating nature such as stock-in-trade, debtors, etc. It attaches to the property charged in the varying conditions in which happens to be from time to time. Such a charge remains dormant until the undertaking charge ceases to be a going concern or until the person in whose favour charge created takes steps to crystallise the floating charge. A floating charge on crystallisation becomes a fixed charge.

Crystallization of floating charge :

1.Where the company ceases to carry on the business, whether the principal money has become payable or not, unless the debenture or trust deed contains the stipulation to the contrary.

2.Upon the commencement of winding up of the company.

3.If a debentureholder, having become entitled to realise the securities by the reason of the fact that the principal money has become payable, intervenes for the purpose by appointing the receiver or by making an application to the court for appointment of the receiver.

How an Auditors of Company is selected or re-selected?

Auditors of Government Companies

The auditor of a Government company is appointed or re-appointed by the Central Government on the advice of the Comptroller and Auditor-General of India provided that the audit would be within the number of acceptable audits available to each auditor.

The Comptroller & Auditor General of India has the power :-

to direct the manner in which the company’s accounts are to be be audited by the auditor so appointed and to give such auditor instructions in regard to any matter relating to the performance of his functions as such

to conduct supplementary or test audit of the company’s accounts by such person or persons or persons as he may authorise in this behalf; and for the purpose of such audit, to require additional information to be furnished to any person or persons so authorised, on such matters, by such person or persons, and in such form, as the Comptroller and Auditor-General may, by general or special order, direct.

The auditor must submit a copy of his audit report to the Comptroller and Auditor-General of India who shall have the right to comment upon or supplement, the audit report in such manner as he may think fit.

Any such comments upon, or supplement to, the audit report must be placed before the annual general meeting of the company at the same time and in the same manner as the auditors’ report.

Auditors of Other Companies

It is the duty of the auditor conduct the audit of the books of accounts of the company and to make his report to the members of the company on the accounts examined by him, and on every balance sheet, every profit and loss account and on every other document declared by the Act to be part of or annexed to the balance-sheet or profit and loss account and laid before the company in general meeting during his tenure of office. The auditor’s report, besides other things necessary in any particular case, must expressly state-

whether, in his opinion and to the best of his information and according to explanation given to him, the accounts give the information required by the Act and in the manner as required;

whether the balance-sheet gives a true and fair view of the company’s affairs as at the end of the financial year and the profit and loss account gives a true and fair view of the profit or loss for the financial year;

whether he has obtained all the information and explanations required by him for the purposes of his audit;

whether in his opinion, the profit & loss account and balance sheet refered to in his report comply with the accounting standards recommended by the Institute of Chartered Accountants of India;

whether, in his opinion, proper books of account as required by law have been kept by the company, and proper returns for the purposes of his audit have been received from the branches not visited by him;

whether the company’s balance sheet and profit and loss account dealt with by the report are in agreement with the books of account and returns.

In case any of the above matters is answered in the negative or with a qualification, the auditor’s report must state the reason for the same. Where the auditor is unable to express any opinion in answer to a particular question, his report shall indicate such fact together with the reasons why it is not possible for him to give an answer to such question.

The Central Government is empowered to issue orders requiring the auditor to include in his report a statement on such matters as may be specified. In exercise of this power the Central Government has issued an order called “The Manufacturing and other Companies (Auditor’s Report) Order, 1975. It is the duty of the auditor to comply with this order when making his report to the shareholders.

Only the person appointed as auditor of the company or where a firm of auditors is so appointed, only a partner of that the firm practising in India, can sign the auditor’s report or sign or authenticate any other document of the company required by law to be signed or authenticated by the auditor.

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Inter Corporate Loans and Investments

A company cannot :-

make any loan to any other body corporate

give guarantee or security in connection with any loan made by any person to another body corporate

acquire, by subscription, purchase or in any other manner, securities in any other body corporate

exceeding 60 % of its paid up share capital and free reserves or 100 % of its free reserves, whichever is more, unless approved by a special resolution passed at a general meeting of members.

The Board of the company may give a guarantee without being previously authorised by a special resolution of members if all the following conditions are satisfied :-

a Board resolution is passed to this effect

there exist exceptional circumstances which prevent the company from obtaining previous authorisation by special resolution

the Board resolution is confirmed within 12 months in a general meeting or its next Annual general meeting, whichever is earlier.

Notice of such resolution must clearly indicate the specific limits, the particulars of the body corporate in which the investment / loan / guarantee / security is proposed, the purpose of the investment / loan / guarantee / security, sources of funding, etc.

No investment / loan / guarantee / security may be made or given unless the Board resolution sanctioning it is with the consent of all directors present at the meeting and prior approval of the public financial institution ( if any term loan is outstanding ) is obtained.

Approval of the public financial institution is not required if the investment / loan / guarantee / security is with the 60 % limit as mentioned above and there has been no default in repaying the term loan and / or interest thereon.

No loan can be made at a rate of interest lower than the bank rate prescribed by the Reserve Bank of India.

A company which has defaulted in repaying public fixed deposits cannot make or give any investment / loan / guarantee / security unless the fixed deposit is fully repaid along with interest due as per the terms and conditions of the fixed deposit.

A register of such inter-corporate loans and investments must be maintained giving the relevant details.

The above provisions do not apply to :-

Any loan / guarantee / security made or given by :-

a banking company or an insurance company or a housing finance company in the ordinary course of its business or a company established with the object of financing industrial enterprises or providing infrastructural facilities

a company whose principal business is the acquisition of shares, stocks, debentures or other securities

a private company unless it is a subsidiary of a public company

Investment made under Rights issue of securities

Loan made by holding company to its wholly subsidiary company

Guarantee or security given by a holding company for loan to its wholly owned subsidiary

Acquisition of securities by a holding company in its wholly owned subsidiary

What should be the content in Directors’ Report?

The report of the Board of Directors must be attached to every balance sheet prsented at the annual general meeting. The report must contain information regarding the following matters :-

The state of affairs of the company

The amount, if any, which it proposes to carry to any reserves in such balance sheet

The amount of dividend recommended

Details of any material changes and commitments, if any, affecting the financial position of the company which have occurred between the end of the financial year of the company to which the balance sheet relates and the date of the report

Conservation of energy, technology absorption, foreign exchange earnings and outgo.

Names, designations and other particulars of all employees drawing more than Rs. 50000/- p.m. in the company

Details necessary for a proper understanding of the state of the company’s affairs and which are not, in the Board’s opinion, harmful to the business of the company or of any of its subsidiaries, in respect of changes which have occured during the financial year :-

in the nature of company’s business;

in the company’s subsidiaries or in the nature of the business carried on by them; and

generally in the classes of business in which the company has an interest

What are the Contents of Profit and Loss Account?

Though no format has been prescribed for the profit and loss account, Part II to Schedule VI of the Companies Act, 1956 gives a list of items which must be disclosed in every profit & loss account. Every profit and loss account of a company must give a true and fair view of the company’s profit or loss for the financial year for which it is drawn up.

Adoption of Balance Sheet and Profit & Loss Account

The Board of directors must present to the shareholders of the company, the balance sheet and a profit and loss account for the financial year at every annual general meeting. In the case of companies which are not commercial organisations such as Section 25 companies, instead if the profit & loss account, an income & expenditure account may be prepared. The profit and loss account to be placed in the FIRST annual general meeting should relate to a period beginning with the incorporation of the company and ending with a day, the interval between which and the date of the meeting does not exceed nine months. In case of subsequent annual general meetings, the profit and loss account should relate to a period beginning with a day immediately after the period for which the preceding profit & loss account was made and ending with a day, the interval between which and the date of the meeting should not exceed six months. The financial year may be more or less than a calendar year, but it must not exceed 15 months or with the special permission of the Registrar, 18 months.

If any director fails to take all reasonable steps to comply with the aforesaid requirements he is, in respect of each offence liable to be punished with imprisonment up to six months or with fine up to Rs.1,000/- or with both.

Authentication of Balance Sheet and Profit & Loss Account

The balance sheet and profit & loss account of a company must be signed on behalf of the Board of directors by two directors out of whom one must be the managing director, where there is one and the manager, or secretary, if any. The balance sheet and profit and loss account must be approved by the Board of directors before they are submitted to the auditors for the purpose of audit. The report of the auditors must be attached to the balance sheet and profit & loss account.

The company and every officer of the company who is in default with the above provisions shall be punishable with the fine which may extend to Rs.500/-, if:

any copy of balance sheet and profit and loss account is issued, circulated or published, without being signed as required ; or

any copy of balance sheet is issued, circulated or published, without there being annexed or attached thereto, a copy each of the following :-

the profit and loss account;

any accounts, reports or statements pertaining to subsidiary companies which are required to be attached to the balance sheet,

the auditors’ report; and

the Report of the Board of Directors

Circulation of Balance Sheet and Auditors’ Report

A copy of every balance sheet, profit and loss account, auditors’ report and every other document required to be annexed or attached to the balance sheet must be sent not less than twenty-one days before the general meeting to every member, to every trustee for debenture holders, and to all other persons who are entitled to have a notice of general meetings. In the case of a company not having a share capital, the above documents need not be sent to a member, or debenture holder who is not entitled to have notice of general meetings.

In case of listed companies, the company may keep the aforesaid documents available for inspection at its registered office during working hours for a period of twenty-one days before the meeting and send to every member and trustee for debentureholders only a summarised statement containing the salient features of these documents in the prescribed format.

Filing of Annual Accounts with the Registrar

Every company must file with the Registrar within 30 days from the day on which the annual accounts, auditor’s report and the director’s report were presented at the annual general meeting, three certified copies of these documents signed by the managing director, manager or secretary of the company or if there be none of these by a director of the company.

These accounts may be inspected and copies thereof may be obtained by any member of the public at the Registrar of Companies on payment of the requisite fee. However, no person other than a member of the company is entitled to inspect, or obtain copies, of the profit and loss account in the case of the following types of companies :-

a private company which is not a subsidiary of public company;

a private company whose entire paid-up capital is held only by one or more bodies corporate incorporated outside India; or

a private company which is deemed to be a public company by virtue of Section 43A, if the Central Government directs that it is not in the public interest that any person other than a member of the company should be entitled to inspect or obtain copies of the profit and loss account of the company.

In case the annual general meeting of a company for any year has not been held, , 3 copies of the balance sheet and profit and loss account, duly signed, within thiry days from the latest day on or before which that meeting should have been held in accordance with the provisions of the Act must be filed with the Registrar of Companies. If for any reason, the annual general meeting before which a balance sheet is laid does not adopt it, or is adjourned without adopting the balance sheet or if the annual general meeting of a company for any year has not been held, a statement of the fact and reasons thereof must also be annexed to the balance sheet and to the copies thereof to be filed with the Registrar.

If default is made in complying with the above provisions, then the company and every officer of the company who is in default shall be punishable with fine which may extend to Rs.50 for every day during the period the default continues.

Who are responsible for maintaining the books of accounts of a company ?

The managing director or manager are responsible for maintaining the books of accounts of a company ;

If the company has neither a managing director nor manager, then every director of the company are responsible for maintaining the books of accounts of a company ;

Every officer and other employee who has been authorised and to whom responsibility to maintain the books has been alloted by the Board of Directors.

If any of the persons referred to above fails to take all reasonable steps to maintain proper books of accounts or has by his own willful act been the cause of any default by the company in this respect, he is punishable with imprisonment up to six months or with fine which may extend to Rs. 1,000 or with both. However, no person can be sentenced to imprisonment unless it is proved that the contravention was committed by him wilfully.

Preparation of Balance Sheet and Profit and Loss Account

The company has to prepare its balance sheet and profit & loss account from the books of account maintained by it. Every Balance Sheet of a company must give a true and fair view of the state of affairs of the company as at the end of the financial year and must be in the prescribed format.

If the responsible for maintaining proper books of account fails to take all reasonable steps to secure compliance by the company with the requirement of law relating to the form and contents of the balance sheet, he is liable for each offence to imprisonment for a term extending up to six months or to fine up to Rs.1,000/- or to both.

Form of Balance Sheet,

Part 1 to Schedule VI of the Companies Act, 1956 gives the format in which the balance sheet is to be prepared. The schedule specifies 2 types of formats, the horizontal format and the vertical format. A company can prepare its balance sheet in either of the 2 formats. In the horizontal format, the liabilities including the share capital are placed on the left side and assets of all types on the right. The main heads in this form are arranged as under:

(a)

Share Capital (a) Fixed assets

(b)

Reserves and surplus (b) Investments

(c)

Loans (c) Current assets, loans and advances

(d)

Current liabilities and (d) Miscellaneous expenditure to the provisions extent not written off or adjusted

(e)

Profit & Loss Account

———– ———–

Total

———– ———–

In the vertical format, the various heads of liabilities and assets are arranged vertically and current liabilities are shown as deduction, from current assets. Whatever information which is required to be given in the horizontal format must also be given in the vertical format. Summarised prescribed vertical form of balance sheet is given below:

I. Sources of Funds

(1)

Shareholders’ funds

(2)

Loan funds

———————-

Total

———————-

II Application of Funds

(1)

Fixed assets

(2)

Investments

(3)

Current assets, loans and advances

Less: Current liabilities & provisions

(4)

(a) Miscellaneous expenditure to the extent not written off or adjusted

(b) Profit & Loss Account

———————-

Total

———————-

The Central Government may, on the application or with the consent of the Board of Directors of the company, by order, modify in relation to that company, any of the requirements as to matters to be stated in the company’s balance sheet or profit and loss account for adapting them to the circumstances of the company.

What are the matters which are accountable in the Books of Account to be kept by a Company?

Every company must maintain proper books of accounts of its affairs. The following transactions must be entered in the books of accounts of the company which must be kept at its registered office :-

(a) all sums of money received and expended by the company and the matters in respect of which the respect of which the receipt and expenditure took place;

(b) all sales and purchases of goods by the company; and

(c) the assets and liabilities of the company.

(d) in the case of a company engaged in production, processing, manufacturing or mining activities, such particulars relating to utilisation of material or other items of cost as may be prescribed relating to certain class of companies as the Central Government may require.

The books of accounts must comply with the following conditions :-

The books must give a true and fair view of the state of affairs of the company or the branch office, if any, and explain its transaction.

The books must be kept on accrual basis and according to double entry system of accounting.

Every company must keep its books of account at its registered office. However, some of the books of account may be kept at such other place in India as the Board of Directors may decide, provided a notice in writing giving full address of that other place alongwith requisite filing fee is filed with the Registrar of Companies within seven of such decision.

If the company has a branch office, the books of account relating to transactions at the branch office may be kept at that branch office, but proper summarised reports and statements must be sent to the registered office or such other place where the books are kept, at intervals of not more than three months. The books of account of the branch must give a true and fair view of the affairs of the branch and clearly explain its transactions.

They must not conceal any transaction and also not disclose any transaction which is fictitious. The books of accounts and other documents and records are open to inspection by any director during business hours. Similarly, they are open to inspection by the Registrar of Companies or an officer authorised by the Central Government.

These books and papers together with the vouchers pertaining to entries made must be maintained for at least 8 years. It has been clarified by the Department of Company Affairs in their Circular No. 2/83 dated 2/3/1983 that the books of account should be prepared and maintained in indelible ink (and not in pencil).

How a director can be removed?

A company may, by ordinary resolution, remove a director (not being a director appointed by the Central Government in pursuance of section 408) before the expiry of his period of office. This provision shall not apply where the company has availed itself of the option given to it of proportional representation on the Board of Directors to appoint not less than two-thirds of the total number of directors according to the principle of proportional representation.

Special notice shall be required of any resolution to remove a director, or to appoint somebody instead of a director so removed at the meeting at which he is removed.

On receipt of notice of a resolution to remove a director under this section, the company shall forthwith send a copy thereof to the director concerned, and the director (whether or not he is a member of the company) shall be entitled to be heard on the resolution at the meeting.

Where notice is given of a resolution to remove a director and the director concerned makes representations in writing to the company (not exceeding a reasonable length) and requests their notification to members of the company, the company shall, unless the representations are received by it too late for it to do so :-

in any notice of the resolution given to members of the company state the fact of the representations having been made; and

send a copy of the representations to every member of the company to whom notice of the meeting is sent

If a copy of the representations is not sent as aforesaid because they were received too late or because of the company’s default, the director may (without prejudice to his right to be heard orally) require that the representations shall be read out at the meeting.

However, copies of the representations need not be sent out and the representations need not be read out at the meeting if, on the application either of the company or of any other person who claims to be aggrieved, the Company Law Board is satisfied that the rights conferred by this provision are being abused to secure needless publicity for defamatory matter and the Company Law Board may order the company’s costs on the application to be paid in whole or in part by the director.

A vacancy created by the removal of a director if he had been appointed by the company in general meeting or by the board in on a casual vacancy, be filled by the appointment of another director in his stead by the meeting at which he is removed, provided special notice of the intended appointment has been given.

A director so appointed shall hold office until the date up to which his predecessor would have held office if he had not been removed as aforesaid.

If the vacancy is not filled, it may be filled as a causal vacancy in accordance with the provisions.

The above provisions of removal of a director shall not affect :-

any compensation or damages payable to him in respect of the termination of his appointment as director or of any appointment terminating with that as director

any other power to remove a director which may exist apart from this provision.

What are the Disqualifications of directors?

A person shall not be capable of being appointed director of a company, if,

*he has been found to be of unsound mind by a Court of competent jurisdiction and the finding is in force

*he is an undischarged insolvent

*he has applied to be adjudicated as an insolvent and his application is pending

*he has been convicted by a Court of any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than six months, and a period of five years has not elapsed from the date of expiry of the sentence

*he has not paid any call in respect of shares of the company held by him, whether alone or jointly with others, and six months have elapsed from the last day fixed for the payment of the call

*an order disqualifying him for appointment as director has been passed by a court and is in force unless the leave of the court has been obtained for his appointment in pursuance of that section.

The Central Government may, by notification in the Official Gazette, remove :-

the disqualification incurred by any person in virtue of clause (d) either generally or in relation to any company or companies specified in the notification; or

the disqualification incurred by any person in virtue of clause (e)

*A private company which is not a subsidiary of a public company may, by its articles, provide that a person shall be disqualified for appointment as a director on any grounds in addition to those specified above.

*No person to be a director of more than twenty companies

*No person shall, hold office at the same time as director in more than twenty companies.

*Where a person already holding the office of director in twenty companies is appointed, as a director of any other company, the appointment :-

*shall not take effect unless such person has, within fifteen days thereof, effectively vacated his office as director in any of the companies in which he was already a director; and

*shall become void immediately on the expiry of the fifteen days if he has not, before such expiry effectively vacated his office as director in any of the other companies aforesaid.

Where a person already holding the office of director in nineteen companies or less is appointed, as a director of other companies, making the total number of his directorships more than twenty, he shall choose the directorships which he wishes to continue to hold or to accept so however that the total number of the directorships, old and new, held by him shall not exceed twenty.

None of the new appointments of director shall take effect until such choice, is made; and all the new appointments shall become void if the choice is not made within fifteen days of the day on which the last of them was made.

In calculating the number of companies of which a person may be a director, the following companies shall be excluded :-

a private company which is neither a subsidiary nor a holding company of a public company

an unlimited company

an association not carrying on business for profit or which prohibits the payment of dividend

a company in which such person is only an alternate director, that is to say, a director who is only qualified to act as such during the absence or incapacity of some other director.

Any person who holds office, or acts, as a director of more than twenty companies in contravention of the foregoing provisions shall be punishable with fine which may extend to five thousand rupees in respect of each of those companies after the first twenty.

Vacation of office by directors

The office of a director shall become vacant if :-

*he fails to obtain within the time specified ( 2 months ) or at any time thereafter ceases to hold, the share qualification, if any, required of him by the articles of the company

*he is found to be of unsound mind by a Court of competent jurisdiction

*he applies to be adjudicated an insolvent

*he is adjudged an insolvent

*he is convicted by a Court of any offence involving moral turpitude and is sentenced in respect thereof to imprisonment for not less than six months

*he fails to pay any call in respect of shares of the company held by him, whether alone or jointly with others, with in six months from the last date fixed for the payment of the call unless the Central Government has, by notification in the Official Gazette removed such disqualification.

*he absents himself from three consecutive meetings of the Board of directors, or from all meetings of the Board, for a continuous period of three months, whichever is longer, without obtaining leave of absence from the Board

*he, whether by himself or by any person for his benefit or on his account or any firm in which he is a partner or any private company of which he is a director, accepts a loan, or any guarantee or security for a loan, from the company in contravention of section 295 ( without due authorization of the Central Government )

*he acts in contravention of section 299 ( failure to disclose interest in any transaction with the company )

*he becomes disqualified by an order of Court under section 203

*he is removed by the members by- resolution at a general meeting

*having been appointed a director by virtue of his holding any office or other employment in the company, he ceases to hold such office or other employment in the company.

The disqualification referred to in clauses (d). (e) and (j) shall not take effect,-

for thirty days from the date of the adjudication sentence or order

where any appeal or petition is preferred within the thirty days aforesaid against the adjudication, sentence or conviction resulting in the sentence, or order until the expiry of seven days from the date on which such appeal or petition is disposed of

where within the seven days aforesaid, any further appeal or petition is preferred in respect of the adjudication, sentence, conviction, or order, and the appeal or petition, if allowed, would result in the removal of the disqualification, until such further appeal or petition is disposed of.

If a person functions as a director, knowing that his office has vacated on account of the above provisions, shall be liable to a fine upto Rs. 500/- per day of default.

A private company which is not a subsidiary of a public company may, by its articles, provide, that the office of director shall be vacated on any grounds in addition to those specified in above

What is the term of appointed of a Managing director?

No company can, appoint or employ any individual as its managing director for a term exceeding five years at a time.

However, a person may be re-appointed, re-employed, or his term of office extended by further periods not exceeding five years on each occasion. Such re-appointment, re-employment or extension cannot be sanctioned earlier than two years from the date on which it is to come into force.

This provision does not apply to a private company unless it is a subsidiary of a public company.

What is the minimum number of companies of which one person may be appointed managing director?

No public company or private company which is a subsidiary of a public company can, appoint or employ any person as managing director, of he is either the managing director or the manager of any other company, except as provided below.

A public company or a private company which is the subsidiary of a public company may appoint or employ a person as its managing director, if he is the managing director or manager of one, and of not more than one, other company provided that such appointment or employment is made or approved by a unanimous resolution passed at a meeting of the Board and of which meeting, and of the resolution to be moved thereat, specific notice has been given to all the directors then in India.

In addition to the above provision, the Central Government may, by order, permit any person to be appointed as a managing direct of more than two companies if the Central Government is satisfied that it is necessary that the companies should, for their proper working, function as a single unit and have a common managing director.

What is the limitation to be a managing directors?

No company can, appoint or employ, orWhat is the continue the appointment or employment of, any person as its managing or whole time director who-

is an undischarged insolvent, or has at any time been adjudged an insolvent

suspends, or has at any time suspended, payment to his creditors or makes, or has at any time made, a composition with them

is, or has at any time been, convicted by a Court in India of an offence involving moral turpitude.

Every public company or a private company which is a subsidiary of a public company, having a paid up share capital of Rs. 5 crores or more must have a managing director or wholetime director or manager.

Appointment of managing director or wholetime director or manager of a public company or a private company which is a subsidiary of a public company requires the approval of the Central Government unless the appointment is in accordance with the conditions specified in Schedule XIII of the Companies Act, 1956 and a returm in Form 25 C is filed within 30 days of appointment.

Application for approval must be made to the Central Government if Form 25 A within 90 days of appointment. The Central Government shall grant its approval if it is satisfied that :-

the managing director or wholetime director or manager is in its opinion, a fit and proper person

such appointment is not against public interest

the terms and conditions of the appointment are fair and reasonable.

The Central Government may grant approval for a period less that the period for which approval is sought.

In case the approval of the Central Government is refused, the appointed person shall vacate his office on the date of communication of the decision of the Central Government to the company and if he omits to do so, he shall be liable to a fine of Rs. 500/- for each day of default.

The Central Government, on information received by it or suo moto, is of the opinion that such appointment made without approval of the Central Government contravenes the conditions given in Schedule XIII, it may refer the matter to the Company Law Board for decision.

On receipt of the order of the Company Law Board against the company,:-

The company shall be liable to fine of upto Rs. 5000/-

Every officer of the company in default shall be liable to a fine of Rs. 10000/-

The appointment shall be deemed to have come to an end and the appointed person shall in addition to being liable to pay a fine of Rs. 10000/-, refund to the company the entire amount of remuneration received by him from such appointment.

What does the term Managing Directors refers to?

Managing Director means a person who, by virtue of an agreement with the company or of a resolution passed by the company in a general meeting or by its Board of directors or by virtue of its memorandum or articles of association, is entrusted with substantial powers of management which could not otherwise be exercisable by him and includes a director occupying the position of a managing director, by whatever name called. The power merely to do administrative acts of a routine nature, when so authorised by the Board such as the power to affix the common seal of the company on any document or to draw and endorse any cheque on the account of the company in any bank or to draw and endorse any negotiable instrument or to sign any share certificate or to direct registration of share transfers will not be deemed to be included within substantial powers of management. The managing director must exercise his powers subject to the superintendence, control and direction of the Board.

What are the Restrictions on appointment or advertisement of director?

A person shall not be capable of being appointed director of a company by the articles, unless before the registration of the articles, the publication of the prospectus, or the filing of the statement in lieu of prospectus, as the case may be , he has, by himself or by his agent authorised in writing

(a) signed and filed with the Registrar a consent in writing to act as such director; and

(b) either ;-

signed the memorandum for shares not being less in number or value than that of his qualification shares, if any, or

taken his qualification shares, if any, from the company and paid or agreed to pay for them; or

signed and filed with the Registrar and undertaking in writing to take from the company his qualification shares, if any, and pay for them; or

made and filed with the Registrar an affidavit to the effect that shares, not being less in number or value than that of his qualification shares, if any, are registered in his name.

Qualification shares are the minimum number of shares a person must own, as provided in the articles of the company, in order to qualify to become a director of the company. Qualification shares must be acquired by a director within 2 months of his appointment. The articles cannot require a director to acquire qualification shares within a shorter period. The face value of the qualification shares cannot exceed five thousand rupees, or if the face value of one share is more than five thousand rupees, then the qualification share will be one qualification share.

Every director, not being a technical director of a director appointed, by the Central or a State Government, shall within two months after his appointment file with the company a declaration specifying the qualification shares held by him. If, after the expiry of the said period of two months, any person acts as a director of the company when he does not hold the qualification shares, he shall be punishable with the fine which may extend to fifty rupees for every day between such expiry and the last day on which he acted as a director.

The above provisions do not apply to-

(a)a company not having a share capital;

(b)a private company;

(c)a company which was a private company before becoming a public company; or

(d)a prospectus issued by or on behalf of a company after the expiry of one year from the date on which the company was entitled to commence business.

What are the terms and conditions of Appointment of alternate director?

The Board of directors of a company may, if so authorised by its articles or by a resolution passed by the company in general meeting, appoint an alternate director to act for a director during his absence for a period of not less than three months from the State in which meetings of the Board are ordinarily held.

An alternate director so appointed shall not hold office for a period longer than the period for which the original director hold office and vacate office if and when the original director returns to the State in which meetings of the Board are ordinarily held.

Appointment of directors to be voted on individually

At a general meeting of public company or of a private company which is a subsidiary of a public company, each director has to be appointed separately by a separate resolution. However, appointment of more than one director through the same resolution will be valid if it has been passed unanimously. A resolution moved in contravention of the aforesaid provision shall be void, whether or not objection was taken at the time to its being so moved:

Consent of candidate for directorship to be filled with Registrar

A person shall not act as director of a company unless he has, by himself or by his agent authorised in writing, signed and filed with the Registrar, a consent in writing to act as such director within 30 days of his appointment. This provision shall not apply to a private company unless it is a subsidiary of a public company.

Option to company to adopt proportional representation for the appointment of directors

If the articles of a company provide for the appointment of not less than two-thirds of the total number of the directors of a public company or of a private company which is a subsidiary of a public company, according to the principle of proportional, representation, whether by the single transferable vote or by a system of cumulative voting or otherwise. Such appointments may be made once in every three years and interim casual vacancies being filled by the Board of Directors as Casual Vacancies. This may enable minority shareholders to have a proportional representation on the Board of Directors of the company.

Can a casual vacancy be filled among directors?

In the case of a public company or a private company which is a subsidiary of a public company, if the office of any director appointed by the company in general meeting is vacated before his term of office will expire in the normal course, the resulting casual vacancy may, in default of and subject to any regulations in the articles of the company, be filled by the Board of directors at a meeting of the Board.

Any person so appointed shall hold office only up to the date up to which the director in whose place he is appointed would have held office if it had not been vacated as aforesaid.

What are the powes of Additional directors?

The Board of directors may appoint additional directors if such power is conferred on it by the articles of the company. Such additional directors shall hold office only up to the date of the next annual general meeting of the company.

Provided further that the number of the directors and additional directors together shall not exceed the maximum strength fixed for the Board by the articles.

Can a company has the right to increase or reduce the number of directors?

A company, at a general meeting may, by ordinary resolution, increase or reduce the number of its directors within the limits fixed in that behalf by its articles.

Increase in number of directors to require Government sanction

In the case of a public company, or a private company which is a subsidiary of a public company, any increase in the number of its directors, beyond the maximum number of directors permitted by the Articles of the Company as first registered, shall not have any effect unless approved by the Central Government and shall become void if, and in so far as, it is disapproved by that Government.

However, where such permissible maximum is 12 or less, no approval of the Central Government is required provided the increase does not increase the number of directors beyond 12.

What is the minimum number of directors in any type of company?

Every public company ( other than a deemed public company ) must have at least three directors. Every other company must have at least two directors.

The directors of a company collectively are referred to as the “Board of directors” or “Board”. Only individuals can be appointed as directors. No body corporate, association or firm can be appointed director of a Company.

In case the first directors are not appointed by the promoters of a company, subscribers of the memorandum who are individuals, shall be deemed to be the directors of the company, until the directors are duly appointed.

Appointment of directors and proportion of those who are to be retire by rotation

Unless that articles provide for the retirement of all directors at every annual general meeting, at least two-thirds of the total number of directors of a public company, or of a private company which is subsidiary of a public company, must :-

(a) retire by rotation

(b) be appointed by the company in general meeting, except where otherwise provided by the Companies Act.

The remaining directors in the case of any such company, and the directors generally in the case of a private company which is not a subsidiary of a public company, must also be appointed by the company in general meeting, unless otherwise provided in any regulations in the articles of the company.

Ascertainment of directors retiring by rotation and filling of vacancies

At every annual general meeting of a public company, or a private company which is a subsidiary of a public company, one-third of the directors liable to retirement by rotation or if their number is not three or a multiple of three, then, the number nearest to one-third, shall retire from office.

The directors to retire by rotation at every annual general meeting shall be those who have been longest in office since their last appointment, but as between persons who became directors on the same day, those who will have to retire is to be determined by lot, unless otherwise agreed to among themselves.

At the annual general meeting at which a director retires as aforesaid the company may fill up the vacancy by appointing the retiring director or some other person thereto. In other words, a retiring director is eligible for re-appointment at the same meeting.

If the place of the retiring director is not so filled up and the meeting has not expressly resolved not to fill the vacancy, the meeting shall stand adjourned till the same day in the next week, at the same time and place, or if that day is a public holiday, till the next succeeding day which is not a public holiday, at the same time and place.

If at the adjourned meeting also, the place of the retiring director is not filled up and that meeting also has not expressly resolved not to fill the vacancy the retiring director shall be deemed to have been re-appointed at the adjourned meeting, unless

a resolution for the re-appointment of such director has been put to the meeting and lost

the retiring director, has by a notice in writing addressed to the company or its Board of directors, expressed his unwillingness to be so re-appointed

he is not qualified or is disqualified for appointment

a resolution, whether special or ordinary, is required for his appointment or re-appointment in virtue of any provisions of this Act.

Right of persons other than retiring directors to stand for directorship

A person who is not a retiring director shall, subject to the provisions of this Act, be eligible for appointment to the office of director at any general meeting, if he or some member intending to propose him has, given notice in writing to the company at its registered office of at least 14 days before the meeting, signifying his candidature for the office of director or the intention of such member to propose him as a candidate for that office along with a deposit of rupees five hundred ( refundable on successful election ).

The company must inform its members of such candidature by giving at least 7 days prior notice. Such notice may not be required if the company advertises such candidature at least 7 days before the meeting in at least 2 newspapers circulating in the place where the registered office of the company is situated, one of which must be in English and the other in the regional language.

This provision shall not apply to a private company, unless it is a subsidiary of a public company.

 

What are the Restrictions on powers of Board?

The Board of directors of a public company, or of a private company which is a subsidiary of a public company, shall not, except with the consent of such public company or subsidiary in general meeting :-

sell, lease or otherwise dispose of the whole, or substantially the whole, of the undertaking of the company, or where the company owns more than one undertaking, of the whole, or substantially the whole, of any such undertaking remit, or give time for the re-payment of, any debt due by a director except in the case or renewal or continuance of any advance made by a banking company to its director in the ordinary course of business

invest, otherwise than in trust securities, the amount of compensation received by the company in respect of compulsory acquisition of any such undertaking as is referred to in clause (a), or of any premises or properties used for any such undertaking and without which it cannot be carried on or can be carried on only with difficulty or only after a considerable time

borrow moneys, where the moneys to be borrowed together with the moneys already borrowed by the company, (apart from temporary loans obtained from the company’s bankers in the ordinary course of business) will exceed the aggregate of the paid-up capital of the company and its free reserves

contribute, to charitable and other funds not directly relating to the business of the company or the welfare of its employees, any amounts the aggregate of which will, in any financial year, exceed fifty thousand rupees, or five per cent of its average net profits during the three financial years immediately preceding, whichever is greater.

The resolutions under clause (d) and (e) above must specify the total amount upto which the Board may borrow or the total amount which may be contributed in a financial year.

Temporary loans mean loans repayable on demand or within 6 months from the date of the loan such as short term cash credit arrangements, the discounting of bills and the issue of other short term loans of a seasonal character, but does not include loans raised for the purpose of financial expenditure of a capital nature.

Any resolution passed by the company permitting any transaction such as is referred to in clause (a) may attach such conditions to the permission as may be specified in the resolution, including conditions regarding the use, disposal or investment of the sale proceeds which may result from the transaction:

The acceptance by a banking company, in the ordinary course of its business, of deposits of money from the public, repayable on demand, or otherwise, and withdrawable by cheque, draft, order or otherwise, shall not be deemed to be a borrowing of moneys by the banking company within the meaning of clause (d).

No debt incurred by the company in excess of the limit imposed by clause by clause (d) shall be valid or effectual, unless the lender proves that he advanced the loan in good faith and without knowledge that the limit imposed by that clause had been exceeded

What are the Certain powers of the Board which are exercised only at meeting?

The Board of directors of a company shall exercise the following powers on behalf of the company, and it shall do so only by means of resolutions passed at meetings of the Board:-

  1. the power to make calls on shares holders in respect of money unpaid on their shares
  2. the power to issue debentures
  3. the power to borrow moneys otherwise than on debentures
  4. the power to invest the funds of the company
  5. the power to make loans

However, the Board may, by a resolution passed at a meeting delegate to any committee of directors, the managing director, or the manager of the company or any other principal officer of the company or in the case of a branch office of the company, a principal officer of the branch office, the powers specified in clauses (c), (d) and (e), to the extent specified in the resolution and subject to such conditions as may be imposed.

Acceptance by a banking company in the ordinary course of its business of deposits of money from the public repayable on demand or otherwise and withdrawable by cheque, draft, order or otherwise or the placing of moneys on deposit by a banking company with another banking company on such conditions as the Board may prescribe, shall not be deemed to be borrowing of moneys or making of loans by a banking company for the purpose of these provisions.

These provisions also do not apply to borrowings by a banking company from other banking companies or from the Reserve Bank of India, the State Bank of India or any other banks.

In respect of dealings betwwen a company and its bankers, the exercise by the company of its powers to borrow money otherwise than on debentures shall mean the arrangement made by the company with its bankers for the borrowing of money by way of overdraft or cash credit or otherwise and not the actual day-to-day operation of overdrafts, cash credit or other accounts.

Every resolution delegating the power referred to in clause (c) ( the power to borrow moneys otherwise than on debentures ) shall specify the total amount outstanding at any one time up to which moneys may be borrowed by the delegate.

Every resolution delegating the power referred to in clause (d) (the power to invest the funds of the company ) shall specify the total amount up to which the funds may be invested, and the nature of the investments which may be made, by the delegate.

Every resolution delegating the power referred to in clause (e) (the power to make loans ) shall specify the total amount up to which loans may be made by the delegate, the purposes for which the loans may be made, and the maximum amount of loans which may be made for each such purpose in individual cases.

Nothing in this section be deemed to affect the right of the company in general meeting to impose restrictions and conditions on the exercise by the Board of any of the powers specified above.

 

What are the General powers of Board?

Subject to the provisions of this Act, the Board of directors of a company shall be entitled to exercise all such powers, and to do all such acts and things, as the company is authorised to exercise and do.

However, the Board shall not exercise any power or do any act or thing which is directed or required, whether by this or any other Act or by the memorandum or articles of the company or otherwise, to be exercised or done by the company in general meeting.

What should be the Quorum for meetings of Board of directors?

The quorum for a meeting of the Board of directors of a company shall be one-third of its total strength (any fraction contained in that one-third being rounded off as one), or two directors, which ever is higher.

at any time the number of interested directors exceeds or is equal to two-thirds of the total strength, the number of the remaining directors, that is to say, the number of the directors who are not interested, present at the meeting being not less than 2 shall be the quorum during such time.

Interested director means any director whose presence cannot, by reason of his being interested in some manner in the subject matter of discussion be counted for the purpose of forming a quorum at a meeting of the Board, at the time of the discussion or vote on any matter.

 

What should be the proper way to give notice of meeting to the directors?

Notice of every meeting of the Board of directors of a company shall be given in writing to ever director for the time being in India, and at his usual address in India to every other director.

Every officer of the company whose duty it is to give notice as aforesaid and who fails to do so shall be punishable with fine which may extend to one hundred rupees.

What should be the least no. of meetings of board of directors?

In the case of every company, a meeting of its Board of directors shall be held at least once every three months and at least four such meetings must be held every year.

What is Share certificate?

A share certificate is a document issued by the company stating that the person named therein is the registered holder of specified number of shares of a certain class and they are paid up upto the amount specified in the share certificate. The share certificate must bear the common seal of the company and also must be stamped under the relevant stamp act. One or more directors must sign it .It should state the name as well as occupation of the holder and number of shares , their distinctive number and the amount paid up.

Every company making allotment of shares must deliver the share certificate of all shareholders within three months of allotment. In case of transfer of shares, the share certificate must be ready for delivery within two months after the shares are lodged with the company for transfer. If default is made in complying with the above provisions, the company and every officer of company who is in default is liable to punishment by way of fine which may extent to Rs500 for every day of default. The allotee must give notice to the company reminding of its obligation and even then, if default is not made good within 10 days of the notice, the allotee may apply to the Company Law Board for direction to the company to issue such share certificate in accordance with the Act. Application for this purpose must be made with the concerned regional bench of the Company Law Board by way of petition. The petition should be accompanied by the following documents :-

1.Copy of the letter of allotment issued by the company

2.Documentary evidence for the allotment of the shares or debentures for transfer

3.Copy of the notice served on the company requiring to make good the default

4.Any other correspondence

5.Affidavit verifying the petition

6.Bank draft evidencing payment of application fee

7.Memorandum of appearance with the Board copy of resolution of the board for the executive Vakalat Nama as the case may be Companies act does not prescribe any form for share certificate.

A Shareholder must keep his share certificate in safe custody or in case of shares which are traded in demat mode, with the depository. The company may renew or issue a duplicate certificate if such certificate is proved to have been lost or destroyed or having being defaced or mutilated or torn or is surrendered to the company. However, if the company, with the intention to defraud issues duplicate certificate, the company shall be punishable with the fine upto Rs10000 and every officer of the company who is in default with imprisonment upto 6 months or fine upto Rs10000 or both.

Once a share certificate is issued by the company, the name of the person in whose favour it has been issued becomes the registered shareholder. Nobody can then deny the fact of his being the registered shareholder of the company. Similarly, if the certificate states that on each of shares a certain amount has been paid up, nobody can deny the fact that such amount has been paid up

Once a charge is registered, it acts as a notice to the public at large that the charge holder has an interest in the charged property. No person can take a defense against the charge holder that he was not aware that a charge was created against the property. That person will be entitled to the property subject to the interest of the charge holder. Once certificate of charge is issued by the Registrar, it is conclusive evidence that the document creating the charge is properly registered.

A company must file within 30 days of creation of a charge with the Registrar complete details of the charge together with the instrument of charge or its verified copy in respect of certain charges. Otherwise the charge will be void. This does not mean that the creditors cannot recover their dues. It merely means that the benefit of the charged security will not be available to them. The following charges are compulsorily registrable :-

 

What is the difference between Sweat Equity and Employee Stock Options?

Sweat Equity Shares mean equity shares issued by the company to its directors and / or employees at a discount or for consideration other than cash for providing know how or making available the rights in the nature of intellectual property rights or value additions.

A company may issue sweat equity shares of a class of shares already issued if the following conditions are fulfilled :-

1.A special resolution to the effect is passed at a general meeting of the company

2.The resolution specifies the number of shares, the current market price, consideration, if any, and the class of employees to whom the shares are to be issued

3.At least 1 year has passed since the date on which the company became eligible to commence business.

4.In case of issue of such shares by a listed company, the Sweat Equity Shares are listed on a recognized stock exchange in accordance with SEBI regulations and where the company is not listed on any stock exchange, the the prescribed rules are complied with.

 

 

How bonus shares are issued?

Bonus shares are issued by converting the reserves of the company into share capital. It is nothing but capitalization of the reserves of the company. Bonus shares can be issued by a company only if the Articles of Association of the company authorises a bonus issue. Where there is no provision in this regard in the articles, they must be amended by passing special resolution act at the general meeting of the company. Care must be taken that issue of bonus shares does not lead to total share capital in excess of the authorised share capital. Otherwise, the authorised capital must be increased by amending the capital clause of the Memorandum of association. If the company has availed of any loan from the financial institutions, prior permission is to obtained from the institutions for issue of bonus shares. If the company is listed on the stock exchange, the stock exchange must be informed of the decision of the board to issue bonus shares immediately after the board meeting. Where the bonus shares are to be issued to the non-resident members, prior consent of the Reserve Bank should be obtained.

Only fully paid up bonus share can be issued. Partly paid up bonus shares cannot be issued since the shareholders become liable to pay the uncalled amount on those shares.

Can a company issue the shares at premium?

A company may issue shares at a premium i.e. at a value above its par value. The following conditions must be satisfied in connection with the issue of shares at a premium:-

1.The amount of premium must be transfered to an account to be called share premium account. The provisions of this Act relating to the reduction of share capital of the company will apply as if the share account premium account were paid up share capital of the company.

2.Share premium account can be used only for the following purposes :-

1. 1.In issuing fully paid bonus shares to members.

2.In Writing off preliminary expenses of the company.

3.In writing off public issue expenses such as underwriting commission, advertisement expenses, etc

4.In providing for the premium payable paid on redemption of any redeemable preference shares or debentures.

5.In buying back its shares

 

Can a company issue shares at discount?

A company may issue shares at a discount i.e at a value below its par value. The following conditions must be satisfied in connection with the issue of shares at a discount :-

1.The shares must be of a class already issued

2.Issue of the shares at discount must be authorised by resolution passed in the general meeting of company and sanctioned by the company law board.

3.The resolution must also specify the maximum rate of discount at which the shares are to be issued

4.Not less than one year has elapsed from the date on which the company was entitled to commence the business.

5.The shares to be issued at discount must issued within 2 months after the date on which issue is sanctioned by the company law board or within extended as may be allowed by the Company Law Board.

6.The discount must not exceed 10 percent unless the Company Law Board is of the opinion that the higher percentage of discount may be allowed in special circumstances of case.

 

 

Can a company further issue the capital?

If, at any time after the expiry of 2 Years from the date of incorporation of the company or after one year from the date of first allotment of shares, whichever is earlier, a public company limited by shares issues further shares within the limit of authorised capital, its directors must first offer such shares to the existing holders of equity shares in proportion to the capital paid up on their shares at the time of further issue. This is commonly known as “Rights Issue of shares”. The company must give notice each of the equity shareholders giving him the option to buy the shares offered to him. The shareholders must be informed of the number of shares he has the option to buy. He must be given at least 15 days to decide for exercising his option. The directors must state in the notice of the offer the fact that the shareholders also has the right to renounce the offer in whole or part in favour of some other person. This is commonly known as “Renunciation of Rights”.

If the shareholder does not inform the company of his decision to take the shares, it is deemed that he has declined the offer. In case where the rights shares are not taken by the shareholders, the directors of the company may dispose of the shares in the manner they think fit.

A company may by special resolution in the general meeting decide that the directors need not offer the shares to the existing shareholders of the equity shares and that they may dispose them off in a manner thought fit by them. This is known as “preferential offer of shares” where third parties or only certain shareholders are given shares in priority over the other shareholders.

However, if a special resolution for preferential issue of shares is not passed but merely an ordinary resolution is passed, preferential issue of shares may be done provided sanction of the Central Government is obtained. The price at which the preferential shares are to be offered are governed by the SEBI guidelines in case of listed companies. Such shares cannot be issued at a price which is less than the higher of the following :-

1.The average of the weekly highs and lows of the closing prices of the shares on the stock exchange during 6 months preceding the date of issue ; or

2.The average of the weekly highs and lows of the closing prices of the shares on the stock exchange during 2 weeks preceding the date of issue

The above provisions of preferential allotment do not apply to conversion of loans or debentures in equity shares provided the terms of the loan or terms of issue of debentures give an option to convert such loans or debentures into shares of the company. Such terms and conditions must be approved before the issue of debenture or raising of the loan by the Central Government or must be in confirmity with the rules made by the Government for this purpose. The proposal must be approved by the special resolution passed by Company at the general meeting before the issue of debentures or raising of the loan. For this purpose the Central Government has framed the Public Companies (Terms of issue of debentures and raising of loans with option to convert such debentures or loan into equity shares ) Rules, 1977. The following is the broad gist of these rules :-

1.The debenture or loan is raised or issued either through private subscription or through issue of the prospectus to the public.

2.The financial institutions specified for this purpose either underwrite or subscribe to the whole or part of the issue of debentures or sanction the raising of loan.

3.Having regard to financial position of the company, the terms of issue of debentures or terms of loan (eg rate of interest payable on debenture and loan the capital of the company, its liabilities and its profits during immediately preceeding five years and the current market price of shares of the company), the conversion must be either at par and or at premium not exceeding 25 percent of the face value of the shares.

The provisions of rights and preferential issue do not apply in the following cases :-

1.Increase in share capital by a private company.

2.Increase in share capital by a deemed public company.

 

 

What are the Voting Rights of the Members?

Every member of a public company limited by shares holding equity shares will have votes in proportion to his share in paid up equity capital of the company.

Generally, preference shareholders do not have any voting rights. However, they can vote on matters directly relating to the rights attached to the preference share capital. Any resolution for winding up of the company or for the reduction or repayment of the share capital shall be deemed to affect directly the rights attached to preference shares. Where the preference shares are cumulative (in respect of dividend) and the dividend thereon has remained unpaid for an aggregate period of two years before date of any meeting of the company, the preference shareholders will have right to vote on any resolution. In case of non-cumulative preference shares, preference shareholders have right to vote on every resolution if dividend due on their capital remains unpaid, either in respect of period of not less than two years ending with the expiry of the financial year immediately preceding the commencement of the meeting or in respect of aggregate period of not less than three years comprised in six years ending with the expiry of concerned financial year.

Every equity shareholder has a right to vote at a general meeting. No company can prohibit any member from exercising his voting right any ground including the ground that he has not held his shares for a minimum period before he becomes eligible to vote. However, a member’s voting rights can be revoked if that member does not make payment of calls or other sums due against him or where the company has exercised the right of lien on his shares.

What are the Rights of Dissenting Shareholders

The rights of the shareholders who did not consent to or vote for variation of their rights are protected by the Companies Act. If the rights of any class of the shareholders are varied, the holders of not less than 10 per cent of the shares of that class, being persons who did not consent to or vote in favour of resolution for variation of their rights can apply to the court to have the variation cancelled. Where such application is made to the court, such variation will not be given effect unless and until it is confirmed by the court.

How much Variation is in shareholders rights?

The rights, duties and liabilities of all shareholders are clearly defined at the time of issue of the shares. Once the rights of shareholders are fixed, they cannot be altered unless the provisions of the Companies Act for this purpose are complied with. The rights attached to the shares of any class can be varied only with the consent in writing of shareholders holding not less than 75 % of the issued shares of that class or with the sanction of special resolution passed at a separate meeting of the holders of issued shares of that class. However, the following conditions also must be complied with :-

1.The variation of rights are allowed by the Memorandum or Articles of Association of the Company.

2.In absence of such provision in the Memorandum or Articles of company, such variation must not be prohibited by the terms of issue of shares of that class.

 

 

What is Buy-back of shares ?

Buy back of its own shares by a company is nothing but reduction of share capital. After the recent amendments in the Companies Act, 1956 buy back of its own shares by a company is allowed without sanction of the Court. It is nothing but a process which enables a company to go back to the holders of its shares and offer to purchase from them the shares that they hold.

There are three main reasons why a company would opt for buy back :-

1.To improve shareholder value, since with fewer shares earning per share of the remaining shares will increase.

2.As a defense mechanism against hostile take-overs since there are fewer shares available for the hostile acquirer to acquire.

3.Public Signaling of the Management’s Policy.

A company may purchase its own shares or other specified securities out of :-

1.its free reserves; or

2.the securities premium account; or

3.the proceeds of any shares or other specified securities:

No buy-back of any kind of shares or other specified securities can be made out of the earlier proceeds of an earlier issue of the same kind of shares or same kind of other specified securities.

No company can purchase its own shares or other specified securities unless :-

1.the buy-back is authorized by its articles;

2.a special resolution has been passed in general meeting of the company authorizing the buy-back;

3.the buy-back is of less than twenty five per cent of the total paid-up capital and free reserves of the company:

4.the buy-back of equity shares in any financial year shall not exceed twenty five per cent of its total paid-up equity capital in that financial year

5.the ratio of the debt owned by the company is not more than twice the capital and its free reserves after such buy-back. However, the Central Government may prescribe a higher ratio of the debt than that specified under this clause for a class or classes of companies.

6.all the shares or other specified securities for buy-back are fully paid-up;

7.the buy-back of the shares or other specified securities listed on any recognized stock exchange is in accordance with the regulations made by the Securities and Exchange Board of India in this behalf;

8.the buy-back in respect of shares or other specified securities other than those specified in clause (g) is in accordance with the guidelines as may be prescribed.

The notice of the meeting at which special resolution is proposed to be passed shall be accompanied by an explanatory statement stating

1.a full and complete disclosure of all material facts

2.the necessity for the buy-back

3.the class of security intended to be purchased under the buy-back

4.the amount to be invested under the buy-back and

5.the time limit for completion of buy-back.

Every buy-back must be completed within twelve months from the date of passing the special resolution.

The buy-back may be :-

1.from the existing security holders on a proportionate basis;

2.from the open market or

3.from odd lots, that is to say, where the lot of securities of a listed public company whose shares are listed on a recognized stock exchange is smaller than such marketable lot as may be specified by the stock exchange;

4.by purchasing the securities issued to employees of the company pursuant to a scheme of stock option or sweat equity.

Where a company has passed a special resolution to buy-back its own shares or other securities under this section, it shall, before making such buy-back, file with the Registrar and the Securities and Exchange Board of India a declaration of solvency in the form as may be prescribed and verified by an affidavit to the effect that the Board has made a full inquiry into the affairs of the company as a result of which they have formed an opinion that it is capable of meeting its liabilities and will not be rendered insolvent within a period of one year of the date of declaration adopted by the Board, and signed by at least two directors of the company, one of whom shall be the managing director, if any:

Such a declaration of solvency need not be filed with the Securities and Exchange Board of India by a company whose shares are not listed on any recognized stock exchange.

Where a company buys back its own securities, it shall extinguish and physically destroy the securities so bought back within seven days of the last date of completion of buy-back.

Where a company completes a buy-back of its shares or, other specified securities under this section, it shall not make further issue of the same kind of shares or other specified securities within a period of twenty four months except by way of bonus issue or in the discharge of subsisting obligations such as conversion of warrants, stock option schemes, sweat equity or conversion of preference shares or debentures into equity shares.

Where a company buys back its securities under this section it shall maintain a register of the securities so bought, the consideration paid for the securities bought-back, the date of cancellation of securities, the date of extinguishing and physically destroying of securities and such other particulars as may be prescribed.

A company shall, after the completion of the buy-back under this section, file with the Registrar and the Securities and Exchange Board of India, a return containing such particulars relating to the buy-back within thirty days of such completion as may be prescribed. However such return need not be filed with the Securities and Exchange Board of India by a company whose shares are not listed on any recognized stock exchange.

If a company makes default in complying with the provisions of this section or any rules or any regulations, the company or any officer of the company who is in default shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to fifty thousand rupees, or with both.

For the purposes of buy back, “specified securities” includes employees’ stock option or other securities as may be notified by the Central Government from time to time;

Where a company purchases its own shares out of free reserves, then a sum equal to the nominal value of the share so purchased shall be transferred to the capital redemption reserve account and details of such transfer shall be disclosed in the balance sheet.”

No company shall directly or indirectly purchase its own shares or other specified securities –

(a) through any subsidiary company including its own subsidiary companies; or

(b) through any investment company or group of investment companies; or

(c) if a default, by the company, in repayment of deposit or interest payable thereon, redemption of debentures, or preference shares or payment of dividend to any shareholder or repayment of any term loan or interest payable thereon to any financial institution or bank, is subsisting.

No Company can, directly or indirectly, purchase its own shares or other specified securities in case such company has not filed its annual returns with the Registrar of Companies, or has not paid the dividends declared by it within 42 days from the date of declaration or has not prepared its annual accounts in the prescribed manner.

 

Can Reduction of capital take place without the sanction of the court?

Reduction of capital can take place without the sanction of the court in the following cases:-

1.Buy back of shares in accordance to the provisions of Section 77A and 77B

2.Forfeiture of shares – A company may if authorised by its articles forfeit shares for non-payment of calls by the shareholders. Such proceedings amount to reduction of capital but the act does not require court sanction for this purpose.

3.Valid surrender of the shares – A company may accept the surrender of shares

4.Cancellation of capital – A company may cancel the shares which has not been taken up or agreed to be taken by the person and diminish the amount of its share capital.

5.Purchase of shares of member by the company under Section 402B. The Company Law Board may, on application made under Section 397 or Section 398, order the purchase of shares or interest of any member of the company by the company. These provisions come in force when a prescribed number of members make a complaint to the CLB for mis-management or oppression of the minority shareholders in the company.

6.Redemption of redeemable preference shares. Where redeemable preference shares are redeemed, it actually amounts to reduction of the capital. However, this does not require the sanction of the court.

 

 

Under what circumstances Reduction of share capital with sanction of the Court is possible?

A company limited by the shares or a company limited by guarantee and having share capital can if authorised by its articles, by special resolution and subject to confirmation by the court on petition reduce its share capital. It may effect reduction of its share capital in any of following circumstances:-

1. Where the company is overcapitalised :-

1. 1.It may extinguish or reduce the liability of member in respect of uncalled or unpaid capital. For example, where shares are of Rs100 each with Rs60 paid up, the company may reduce them to Rs60 fully paid and thus release the shareholder from the liability on uncalled capital of Rs. 40/-.

2.Pay off or return part of the unpaid capital not wanted for the purpose of the company. For example, where the shares are fully paid of Rs100 they may be reduced Rs40 each and Rs60 may be paid back to the shareholders.

3.Pay off part of the paid up share capital on the footing that it may be called up again. If shares are of Rs100 each the company may pay off Rs25 per share on condition that when desired the company may call it again without extinguishing the liability of shareholders to pay the uncalled share capital.

4.Reduce by a combination of the aforesaid methods

2. Where has suffered loss of capital, in such situation the company can write off or cancel the share capital which has been lost or is unrepresented by available assets.

Where the company has passed the resolution for reducing the share capital, it must, by petition, apply to the court in the prescribed form to the court for an order confirming the reduction. Where the proposed reduction of share capital involves the either diminution of liabilities in respect of unpaid share capital or the payment to any shareholder of any paid-up share capital or in any other case if the court so directs the following provisions shall have effect :-

1.Every creditor of the company who on the date fixed by the court is entitled to debt from or any claim against the company shall be entitled to object to the reduction.

2.The Court shall settle a list of creditors so entitled to object and for that purpose shall ascertain as far as possible without requiring an application from any of the creditors, the names of creditors and the nature and amount of debt or claims and publish notices fixing the day or days within which creditors not entered in the list are to be entered if they so desire.

3.Where a creditor entered on the list whose debt or claim is not discharged or has not been determined does not consent to the reduction, the court may, if it thinks fit, dispense with the consent of the creditors if the company secures payment of this debt or claim by appropriating the following amounts as the court may direct:-

1. 1.The company admits the full amount claim or debt or though not admitting it is willing to provide for it, then the full amount of debt or claim

2.If the company does not admit and is not willing to provide for the full amount of debt or claim or if the amount is contingent or not ascertained, then amount fixed by the court after due enquiry.

1.Where the proposed reduction of share capital involves either diminution of any liability in respect of the unpaid share capital or payment of any shareholder of any paid share capital, the Court may, having regard to any special circumstances of the case as it thinks proper so to do, direct that the above provisions shall not apply to any class or classes of creditors.

2.If the court is satisfied with respect to every creditor of the company entitled to object to reduction that either his consent to the reduction has been obtained or his that debt or claim has been discharged or has been determined or has been secured, make an order confirming the reduction on such terms and conditions as it thinks fit.

3.Where the court makes such an order, it may, if for any special reasons thinks fit and proper to do so, make an order directing that the company shall shall during such period commencing on and any time after the date of the order as is specified in the order add to its name as the last words the words “& Reduced” and make an order requiring the company to publish the same along with the reasons for the reduction or such other information in regard thereto as the court may think expedient with view to giving proper information to the public and if the court thinks fit the causes which led to reduction.

4.Where the company is ordered to add to its name the words “& Reduced” those words shall until the expiry of period specified in the order shall be deemed to be part of the name of the company.

5.The registrar, on the production to him, of an order of the court confirming the reduction of the share capital of the company and on delivering to him the certified copy of the order and of minutes approved by the court showing with respect to the share capital of the company as altered by the order register the reduction of share capital. On registration of order and minutes, the reduction of share capital shall take effect.

6.Notice of the registration shall be published in such manner as the court may direct.

 

 

How shares can be converted into stocks?

Conversion of fully paid shares into stock may likewise be affected by the ordinary resolution of the company in the general meeting. Notice of the conversion must be given to the Registrar within 30 days of the conversion, the stock may be converted into fully paid shares following the same procedure and notice given to the Registrar in Form no 5. In this connection, the following provisions are important :-

1.Only fully paid shares can be converted into stocks

2.Direct issue of stock to members is not lawful and cannot be done.

3.The difference between shares and stock is that shares are transferable only in complete units so that transfer of half or any portion of share is not possible whereas stock is expressed in terms of any amount money and is transferable in any money fractions.

4.Articles may be give the Board of Directors authority to fix minimum amount of stock transferable.

5.Since stock is not divided into different units it is not required to be numbered. Shares on the other hand must be numbered.

 

What is Alternation of capital?

A company limited by shares can alter the capital clause of its Memorandum in any of the following ways provided that such alteration is authorised by the articles of association of the company :-

1.Increase in share capital by such amount as it thinks expedient by issuing new shares.

2.Consolidate and divide all or any of its share capital into shares of larger amount than its existing shares. eg, if the company has 100 shares of Rs.10 each ( aggregating to Rs. 1000/-) it may consolidate those shares into 10 shares of Rs100 each.

3.Convert all or any of its fully paid shares into stock and re-convert stock into fully paid shares of any denomination.

4.Subdivide shares or any of shares into smaller amounts fixed by the Memorandum so that in subdivision the proportion between the amount paid and the amount if any unpaid on each reduced shares shall be same as it was in case of from which the reduced share is derived.

5.Cancel shares which have been not been taken or agreed to be taken by any person and diminish the amount of share capital by the amount of the shares so cancelled.

The alteration of the capital of the company in any of the manner specified above can be done by passing a resolution at the general meeting of the company and does not require any confirmation by the court.

Reduction of the share capital can be effected only in the manners specified in Section 100-104 of the Act or by way of buy back under Section 77A and 77B of the Act. Notice of alteration to share capital is required to be filed with the registrar of the company in Form no 5 within 30 days of the alteration of the capital clause of the MA. The Registrar shall record the notice and make necessary alteration in Memorandum and Articles of Association of the company. Any default in giving notice to the registrar renders company and its officers in default liable to punishment with fine which may extend to the Rs50 for each day of default.

 

How many Types of Preference Shares are there?

1.Cumulative or Non-cumulative : A non-cumulative or simple preference shares gives right to fixed percentage dividend of profit of each year. In case no dividend thereon is declared in any year because of absence of profit, the holders of preference shares get nothing nor can they claim unpaid dividend in the subsequent year or years in respect of that year. Cumulative preference shares however give the right to the preference shareholders to demand the unpaid dividend in any year during the subsequent year or years when the profits are available for distribution . In this case dividends which are not paid in any year are accumulated and are paid out when the profits are available.

2.Redeemable and Non- Redeemable : Redeemable Preference shares are preference shares which have to be repaid by the company after the term of which for which the preference shares have been issued. Irredeemable Preference shares means preference shares need not repaid by the company except on winding up of the company. However, under the Indian Companies Act, a company cannot issue irredeemable preference shares. In fact, a company limited by shares cannot issue preference shares which are redeemable after more than 10 years from the date of issue. In other words the maximum tenure of preference shares is 10 years. If a company is unable to redeem any preference shares within the specified period, it may, with consent of the Company Law Board, issue further redeemable preference shares equal to redeem the old preference shares including dividend thereon. A company can issue the preference shares which from the very beginning are redeemable on a fixed date or after certain period of time not exceeding 10 years provided it comprises of following conditions :-

1.It must be authorised by the articles of association to make such an issue.

2.The shares will be only redeemable if they are fully paid up.

3.The shares may be redeemed out of profits of the company which otherwise would be available for dividends or out of proceeds of new issue of shares made for the purpose of redeem shares.

4.If there is premium payable on redemption it must have provided out of profits or out of shares premium account before the shares are redeemed.

5.When shares are redeemed out of profits a sum equal to nominal amount of shares redeemed is to be transferred out of profits to the capital redemption reserve account. This amount should then be utilised for the purpose of redemption of redeemable preference shares. This reserve can be used to issue of fully paid bonus shares to the members of the company.

3.Participating Preference Share or non-participating preference shares : Participating Preference shares are entitled to a preferential dividend at a fixed rate with the right to participate further in the profits either along with or after payment of certain rate of dividend on equity shares. A non-participating share is one which does not such right to participate in the profits of the company after the dividend and capital have been paid to the preference shareholders.

 

How many types of shares are there?

Shares in the company may be similar i.e they may carry the same rights and liabilities and confer on their holders the same rights, liabilities and duties. There are two types of shares under Indian Company Law :-

1.Equity shares means that part of the share capital of the company which are not preference shares.

2.Preference Shares means shares which fulfill the following 2 conditions. Therefore, a share which is does not fulfill both these conditions is an equity share.

1.It carries Preferential rights in respect of Dividend at fixed amount or at fixed rate i.e. dividend payable is payable on fixed figure or percent and this dividend must paid before the holders of the equity shares can be paid dividend.

2.It also carries preferential right in regard to payment of capital on winding up or otherwise. It means the amount paid on preference share must be paid back to preference shareholders before anything in paid to the equity shareholders. In other words, preference share capital has priority both in repayment of dividend as well as capital.

What are the different terms used to denote different aspects of share capital?

1.Nominal, authorised or registered capital means the sum mentioned in the capital clause of Memorandum of Association. It is the maximum amount which the company raise by issuing the shares and on which the registration fee is paid. This limit is cannot be exceeded unless the Memorandum of Association is altered.

2.Issued capital means that part of the authorised capital which has been offered for subscription to members and includes shares alloted to members for consideration in kind also.

3.Subscribed capital means that part of the issued capital at nominal or face value which has been subscribed or taken up by purchaser of shares in the company and which has been alloted.

4.Called-up capital means the total amount of called up capital on the shares issued and subscribed by the shareholders on capital account. I.e if the face value of a share is Rs. 10/- but the company requires only Rs. 2/- at present, it may call only Rs. 2/- now and the balance Rs.8/- at a later date. Rs. 2/- is the called up share capital and Rs. 8/- is the uncalled share capital.

5.Paid-up capital means the total amount of called up share capital which is actually paid to the company by the members.

In India, there is the concept of par value of shares. Par value of shares means the face value of the shares. A share under the Companies act, can either of Rs10 or Rs100 or any other value which may be the fixed by the Memorandum of Association of the company. When the shares are issued at the price which is higher than the par value say, for example Par value is Rs10 and it is issued at Rs15 then Rs5 is the premium amount i.e, Rs10 is the par value of the shares and Rs5 is the premium. Similarily when a share is issued at an amount lower than the par value, say Rs8, in that case Rs2 is discount on shares and Rs10 will be par value.

What is Memorandum of satisfaction?

company must make a report to the Registrar of payment of satisfying in full of any charge registered under this act. The satisfaction of charges must be filed with the Registrar within 30 days from the date of such a payment of charge. On receipt of intimation to the company, the Registrar gives notice to the charge-holder calling upon him to show cause within time not exceeding 14 days as why the payment of satisfaction should not be registered. If no cause is shown within the time stipulated above the Registrar must enter the satisfaction of the payment of charge. If some cause is shown, the Registrar must record note to that effect in the register and inform the company accordingly

Once a charge is registered, it acts as a notice to the public at large that the charge holder has an interest in the charged property. No person can take a defense against the charge holder that he was not aware that a charge was created against the property. That person will be entitled to the property subject to the interest of the charge holder. Once certificate of charge is issued by the Registrar, it is conclusive evidence that the document creating the charge is properly registered.

A company must file within 30 days of creation of a charge with the Registrar complete details of the charge together with the instrument of charge or its verified copy in respect of certain charges. Otherwise the charge will be void. This does not mean that the creditors cannot recover their dues. It merely means that the benefit of the charged security will not be available to them. The following charges are compulsorily registrable :-

company must make a report to the Registrar of payment of satisfying in full of any charge registered under this act. The satisfaction of charges must be filed with the Registrar within 30 days from the date of such a payment of charge. On receipt of intimation to the company, the Registrar gives notice to the charge-holder calling upon him to show cause within time not exceeding 14 days as why the payment of satisfaction should not be registered. If no cause is shown within the time stipulated above the Registrar must enter the satisfaction of the payment of charge. If some cause is shown, the Registrar must record note to that effect in the register and inform the company accordingly

Every company must keep at its registered office a register of charges in which all the charges and mortgages specifically affecting the property of the company must be entered. The register must contain short description of the property charged, the amount of the charge, the name of the person entitled to the charge, etc. The company must keep at its registered office, a copy of every instrument creating any charge requiring the registration. During the business hours inspection by the creditor or member of the company is allowed to be without charge of the register and documents. Any outsider can inspect them on the payment of Rs10 for each inspection during the business hours. Registrar of the company must keep also the register of charges in respect of each company and register therein full particulars relating to the charge created by the company and registrable under the Act. This register is also open to inspect by any person on payment of Rs 10 as fees . The company must submit to the Registrar the instrument creating the charge or its certified copy which will be returned after the registration along with the certificate of registration. The company must cause the copy of every registration to be endorsed on every debenture or certificate of debentures stock which is issued by the company and the payment of which is secured by the charge.

When the charge holder takes steps to enforce his charge, a floating charge becomes a fixed charge on the assets covered by that charge. Until a floating charge becomes a fixed charge, the company is free to deal with the property charged in any manner it deems fit. But once the floating charge crystallises, the company cannot dispose off the charged assets without paying of the chargeholder. Otherwise, the chargeholder can recover his dues from the proceeds. A floating charge crystallises or becomes the fixed in following situations :

Capital refers to the amount invested in the company so that it can carry on its activities. In a company capital refers to “share capital”. The capital clause in Memorandum of Association must state the amount of capital with which company is registered giving details of number of shares and the type of shares of the company. A company cannot issue share capital in excess of the limit specified in the Capital clause without altering the capital clause of the MA.

What are the Consequences of Non-Registration?

1.A charge which is compulsorily registarble but which is not registered is void. This does not mean that the creditors cannot recover their dues. It merely means that the benefit of the charged security will not be available to them.

2.Although the security becomes void by non-registration, it does not affect the contract or obligation of the company to repay the money thereby secured.

3.Omission to registrar particulars of charge is required punishable with fine. A company or every officer of company is in default shall be liable to fine upto Rs 500 for each day of continuing default. A further fine of Rs. 1000 may be impose on the company and every officer for other defaults relating to registration of charges.

Wherever the terms and conditions or the extent of the operation of any registered charge is modified , the company is required to file the particulars of modification within 30days thereof with the Registrar of Companies.

Registration of charges

Charges requiring registration :

1.A charge for the purpose of securing any issue of any debentures

2.A floating charge

3.A charge on uncalled share capital

4.Charge on calls made but not paid

5.A charge on any immovable property

6.A charge on ship

7.A charge on book debts of the company

8.A charge on goodwill or on patent or on license under the patent or on trademark or copyright or on the license under the copyright

9.A charge other than a pledge on any movable property of the company.

What is the meaning of Dissolution?

Dissolution of a meeting means termination of a meeting. The meeting no longer exists once it has been dissolved. If within half an hour after the time appointed for holding a general meeting; the quorum is not present, the meeting shall stand dissolved if it was called on requisition by members.

Minutes of Proceedings of Meetings

Every company must keep minutes of the proceedings of general meetings and of the meetings of board of directors and its committees. The minutes are a record of the discussions made at the meeting and the final decisions taken thereat.

Every company must keep minutes containing details of all proceedings at the meetings. The pages of the minute books must be consecutively numbered and the minutes must be recorded therein within 30 days of the meeting. They have to be written directly on the numbered pages. Pasting or attaching of papers is not allowed. Each page of every such minutes books must be initialed or signed and last page of the record of proceedings of each meeting in such books must be dated and signed by :-

in the case of the meeting of the Board of directors or committee thereof, by the chairman of that meeting or that of the succeeding meeting, and

in the case of a general meeting, by the chairman of the same meeting within the aforesaid 30 days or in the event of the death or inability of that chairman within the period, by a director duly authorised by the Board of directors for the purpose.

The Company Law Board, however, may not object if minutes are maintained in loose leaf form provided all other procedural requirements are complied with and all possible safeguards against manipulation or interpolation of the minutes are ensured. The loose leaves must be bound at reasonable intervals. Entering the minutes in a bound minute book by a chemical process, which does not amount to attachment to any book by pasting or otherwise is permissible provided on the mechanical impression of the minutes, the original signatures of the Chairman are given on each page. All appointments of officers made at any of the meetings must be included in the minutes of the meeting. In the case of a meeting of the Board of directors or its Committee, the minutes must also state the names of directors present at the meeting and the names of directors, if any, dissenting from, or not concurring with a resolution passed at the meeting.

The chairman may exclude from the minutes any matters which are defamatory, irrelevant or immaterial or which are detrimental to the interests of the company. The discretion of the Chairman with regard to the inclusion or exclusion of any matter is absolute and unfettered.

Where minutes of the proceedings of any meeting have been kept properly, they are, unless the contrary is proved, presumed to be correct, and are valid evidence that the meeting was duly called and held, and all proceedings thereat have actually taken place, and in particular, all appointments of directors or liquidators made at the meeting shall be deemed to be valid.

The minute books of the proceedings of general meetings must be kept the registered office of the company. Any member has a right to inspect, free of cost during business hours at the registered office of the company, the minutes books containing the proceedings of the general meetings of the company. Further, any member shall be entitled to be furnished, within 7 days after he has made a request to the company, with a copy of any minutes on payment of Rupee One for every hundred words or fraction thereof. If any inspection is refused or copy not furnished within the time specified, every officer in default shall be punishable with fine up to Rs. 500 for each offence. The Company Law Board may also by order compel an immediate inspection or furnishing of a copy forthwith. But the minutes books of the board meetings are not open for inspection of members

What does the term Postponement of a meeting means?

Postponement of a meeting means defering the holding of the meeting itself at a later date. Postponement is done by the Board of Directors or by the person convening the meeting. In case of adjournment, it is the decision of the majority of the members present at the meeting itself.

What does the term Adjournment refers to?

Adjournment means suspending the proceedings of a meeting for the time being so that the meeting may be continued at a later date and time fixed in that meeting itself at the time of such adjournment or to decided later on. Only the business not finished at the original meeting can be transacted at the adjourned meeting.

The majority of members at a meeting may move an adjournment motion at a meeting. If the chairman adjourns the meeting, ignoring the views of the majority, the remaining members can continue the meeting. The chairman cannot adjourn the meeting at his own discretion without there being a good cause for such an adjournment. Where the chairman, acting bona fide within his powers, adjourns the meeting as per the view of the majority, the minority members cannot to continue with such meeting and, if they do the proceedings there will be null and void.

An adjourned meeting is merely the continuation of the original meeting and therefore, a fresh notice is not necessary, if the time, date and place for holding the adjourned meeting are decided and declared at the time of adjourning it. If a meeting is adjourned without stipulation as to when it will be continued, fresh notice of the adjourned meeting must be given.

What are the different Kinds of Resolutions?

Resolutions mean decisions taken at a meeting. A motion, with or without amendments is put to vote at a meeting. Once the motion is passed, it becomes a resolution. A valid resolution can be passed at a properly convened meeting with the required quorum. There are broadly three types of resolutions :-

1. Ordinary Resolution :

An ordinary resolution is one which can be passed by a simple majority. I.e. if the votes (including the casting vote, if any, of the chairman), at a general meeting cast by members entitled to vote in its favour are more than votes cast against it. Voting may be by way of a show of hands or by a poll provided 21 days notice has been given for the meeting.

2. Special Resolution :

A special resolution is one in regard to which is passed by a 75 % majority only i.e. the number of votes cast in favour of the resolution is at least three times the number of votes cast against it, either by a show of hands or on a poll in person or by proxy. The intention to propose a resolution as a special resolution must be specifically mentioned in the notice of the general meeting. Special resolutions are needed to decide on important matters of the company. Examples where special resolutions are required are :-

To alter the domicile clause of the memorandum from one State to another or to alter the objects clause of the memorandum.

To alter / change the name of the company with the approval of the central government

To alter the articles of association

To change the name of the company by omitting “Limited” or “Private Limited”. The Central Government may allow a company with charitable objects to do so by special resolution under section 25 of the Companies Act, 1956.

3. Resolution requiring Special Notice :

There are certain matters specified in the Companies Act, 1956 which may be discussed at a general meeting only if a special notice is given regarding the proposal to discuss these matters at a meeting. A special notice enables the members to be prepared on the matter to be discussed and gives them time to indicate their views on the resolution. In case special notice of resolution is required by the Companies Act, 1956 or by the articles of a company, the intention to propose such a resolution must be notified to the company at least 14 days before the meeting. The company must within 7 days before the meeting give the notice of the proposed resolution to its members. Notice of the resolution is required to be given in the same way in which notice of a meeting is given, or if that is not practicable, the company may give notice by advertisement in a newspaper having an appropriate circulation or in any other manner allowed by the articles, not less 7 days before the meeting.

The following matters requiring Special Notice before they are discussed before tha meeting :-

To appoint at an annual general meeting appointing an auditor a person other than a retiring auditor.

To resolve at an annual general meeting that a retiring auditor shall not be reappointed.

To remove a director before the expiry of his period of office.

To appoint another director in place of removed director.

Where the articles of a company provide for the giving of a special notice for a resolution, in respect of any specified matter or matters.

Please note that a resolution requiring special notice may be passed either as an ordinary resolution (Simple majority) or as a special resolution (75 % majority).

Circulation of Member’s Resolution

Generally, the Board of Directors prepare the agenda of the meeting to be sent to all members of the meeting. A member, by himself has very little say in deciding the agenda. However, there are provisions in the Companies Act which enable members to introduce motions at a meeting and give prior notice of their intention to do so to all other members of the company. If members having one twentieth of the total voting rights of all members having the right to vote on a resolution or if 100 members having the right to vote and holding paid-up capital of Rs1,00,000 or more, require the company to do so, the company must :-

Give to the members entitled to receive notice of the next annual general meeting, notice of any resolution which may be properly moved and is intended to be moved at that meeting; and

Circulate to members entitled to have notice of any general meeting sent to them, any statement of not more than 1,000 words with respect to the matter referred to in any proposed resolution, or any business to be dealt with at that meeting.

The expenses for this purpose must be borne by the requisitionists and must be tendered to the company. The requisition, signed by all the requisitionists, must be deposited at the registered office of the company at least 6 weeks before the meeting in the case of resolution and not less than 2 weeks before the meeting in case of any other requisition together with a reasonable sum to meet the expenses. However, where a copy of the requisition requiring notice of resolution has been deposited at the registered office of the company and an annual general meeting is called for a date six weeks or less after the requisition is deposited, the copy though not deposited within the prescribed time is deemed to have been properly deposited.

The company is required to serve the notice of resolution and/or the statement to the members as far as possible in the manner and so far as practicable at the same time as the notice of the meeting ; otherwise as soon as practicable thereafter.

However, a company need not circulate a statement if the Court, on the application either of the company or any other aggrieved person, is satisfied that the rights so conferred are being abused to secure needless publicity or for defamatory purposes. Secondly a banking company need not circulate such statement, if in the opinion of its Board of directors, the circulation will injure the interest of the company.

Registration of Resolutions and Agreements

A copy of each of the following resolutions along with the explantory statement in case of a special business and agreements must, within 30 days after the passing or making thereof, be printed or typewritten and duly certified under the signature of an officer of the company and filed with the Registrar of Companies who shall record the same :-

All special resolutions

All resolutions which have been unanimously agreed to by all the members but which, if not so agreed, would not have been effective unless passed as special resolutions

All resolutions of the board of directors of a company or agreement executed by a company, relating to the appointment, re-appointment or renewal of the appointment, or variation of the terms of appointment, of a managing director

All resolutions or agreements which have been agreed to by all members of any class of members but which, if not so agreed, would not have been effective unless passed by a particular majority or in a particular manner and all resolutions or agreements which effectively bind all members of any class of shareholders though not agreed to by all of those members

All resolutions passed by a company conferring power upon its directors to sell or dispose of the whole or any part of the company’s undertaking; or to borrow money beyond the limit of the paid-up share capital and free reserves of the company; or to contribute to charities beyond Rs50000 or 5 per cent of the average net profits

All resolutions approving the appointment of sole selling agents of the company

All copies of the terms and conditions of appointment of a sole selling agent or sole buying or purchasing agent

Resolutions for voluntary winding up of a company

What does the term Amendment means?

Amendment means any modification to a motion before it is put to vote for adoption. Amendment may be proposed by any member who has not already spoken on the main motion or has not previously moved an amendment thereto. There can be an amendment to an amendment motion also. A motion must be in writing and signed by the mover and put to the vote of the meeting by the chairman. An amendment must not raise any question already decided upon at the same meeting and must be relevant to the main motion which it seeks to amend. The chairman has the discretion to accept or reject an amendment on various grounds such as inconsistency, redundancy, irrelevance, etc. If the amendment is adopted on a vote by the members, it is incorporated in the body of the main motion. The altered motion is then discussed and put to vote and if passed, becomes a resolution.

What does the term Motion refers to?

Motion means a proposal to be discussed at a meeting by the members. A resolution may be passed accepting the motion, with or without modifications or a motion may be entirely rejected. A motion, on being passed as a resolution becomes a decision. A motion must be in writing and signed by the mover and put to the vote of the meeting by the chairman. Only those motions which are mentioned in the agenda to the meeting can be discussed at the meeting. However, motions incidental or ancillary to the matter under discussion may be moved and passed. Generally, a motion is proposed by one member and seconded by another member.

When there is need for Voting and Demand for Poll?

Generally, initially matters are decided at a general meeting by a show of hands. If the majority of the hands raise their hands in favour of a particular resolution, then unless a poll is demanded, it is taken as passed. Voting by a show of hands operates on the principle of “One Member-One Vote”. However, since the fundamental voting principle in a company is “One Share-One Vote”, if a poll is demanded, voting takes place by a poll. Before or on declaration of the result of the voting on any resolution on a show of hands, the chairman may order suo motu (of his own motion) that a poll be taken. However, when a demand for poll is made, he must order the poll be taken. The chairman may order a poll when a resolution proposed by the Board is lost on the show of hands or if he is of the opinion that the decision taken on the show of hands is likely to be reversed by poll. When a poll is taken, The decision arrived by poll is final and the decision on the show of hands has no effect.

A poll is allowed only if the prescribed number of members demand a poll. A poll must be ordered by the chairman if it is demanded:-

in the case of a public company having a share capital, by any member or members present in person or by proxy and holding shares in the company-

which confer a power to vote on the resolution not being less than one-tenth of the total voting power in respect of the resolution, or

on which an aggregate sum of not less than fifty thousand rupees has been paid up.

in the case of a private company having a share capital, by one member having the right to vote on the resolution and present in person or by proxy if not more than seven such members are personally present, and by two such members present in person or by proxy, if more than seven such members are personally present.

in the case of any other, by any member or members present in person or by proxy and having not less than one-tenth of the total voting power in respect of the resolution.

What are the Duties of the chairman?

Without a chairman, a meeting is incomplete. The chairman is the regulator of the meeting. His duties include the following :-

He must ensure that the meeting is properly convened and constituted i.e. that proper notice has been given, that the required quorum is present, etc.

He must ensure that the provisions of the act and the articles in regard to the meeting and its procedures are observed.

He must ensure that business is taken in the order set out in agenda and no business which is not mentioned in the agenda is taken up unless agreed to by the members.

He must impartially regulate the proceedings of the meeting and maintain discipline at the meeting.

He may exercise his powers of adjournment of the meeting, should he in good faith feel that such a step is necessary. The chairman has the power to adjourn the meeting in case of indiscipline at the meeting. A chairman however does not have the power to stop or adjourn the meeting at his own will and pleasure. If he adjourns the meeting prematurely, the members present may decide to continue the meeting and elect another chairman and proceed with the business for which it was convened.

He must exercise his power to order a poll correctly and must order it to be taken when demanded properly.

He must exercise his casting vote bonafide in the interest of the company.

Who is a Chairman?

The chairman is the head of the meeting. Generally, the chairman of the Board of Directors is the Chairman of the meeting. Unless the articles otherwise provide, the members present in person at the meeting elect one of themselves to be the chairman thereof on a show of the hands. If there is no Chairman or he is not present within 15 minutes after the appointed time of the meeting or is unwilling to act as chairman of the meeting, the directors present may elect one among themselves to be the chairman of the meeting. If, however no director is willing to act as chairman or if no director is present within 15 minutes after the appointed time of the meeting, the members present should choose one among themselves to be chairman of the meeting. If, after the election of a chairman on a show of hands, poll is demanded and taken and a different person is elected as chairman, then that person will be the chairman for the rest of the meeting.

What does the term Quorum refers to?

Quorum refers to the minimum number of members who must be present at a meeting in order to constitute a valid meeting. A meeting without the minimum quorum is invalid and decisions taken at such a meeting are not binding. The articles of a company may provide for a quorum without which a meeting will be construed to be invalid. Unless the articles of a company provide for larger quorum, 5 members personally present (not by proxy) in the case of a public company and 2 members personally present (not by proxy) in the case of a private company shall be the quorum for a general meeting of a company.

It has been held by Courts that unless the articles otherwise provide, a quorum need to be present only when the meeting commenced, and it was immaterial that there was no quorum at the time when the vote was taken. Further, unless the articles otherwise provide, if within half an hour from the time appointed for holding a meeting of the company, a quorum is not present in the person, the meeting :-

if called upon the requisition of members, shall stand dissolved;

in any other case, it shall stand adjourned to the same day in the next week, at the same time and place, or to such other day and time as the Board of Directors may determine.

If at the adjourned meeting also, the quorum is not present within half an hour from the time appointed for holding the meeting, the members present shall a quorum.

In case the Company Law Board calls or directs the calling of a meeting of the company, when default is made in holding an annual general meeting, the government may give directions regarding the quorum including a direction that even one member of the company present in person, or by proxy shall be deemed to constitute a meeting. Similarly the Company Law Board may, direct a meeting of the company (other than an annual general meeting) to be called and held where for any reason it is impracticable to call a meeting and direct that even one member present in person or by proxy shall be deemed to constitute a meeting.

What does the term Proxy refers to?

In case of a company having a share capital and in the case of any other company, if the articles so authorise, any member of a company entitled to attend and vote at a meeting of the company shall be entitled to appoint another person (whether a member or not) as his proxy to attend and vote instead of himself. Every notice calling a meeting of the company must contain a statement that a member entitled to attend and vote is entitled to appoint one proxy in the case of a private company and one or more proxies in the case of a public company and that the proxy need not be member of the company.

 

A member may appoint another person to attend and vote at a meeting on his behalf. Such other person is known as “Proxy”. A member may appoint one or more proxies to vote in respect of the different shares held by him, or he may appoint one or more proxies in the alternative, so that if the first named proxy fails to vote, the second one may do so, and so on.

 

The member appointing a proxy must deposit with the company a proxy form at the time of the meeting or prior to it giving details of the proxy appointed. However, any provision in the articles which requires a period longer than forty eight hours before the meeting for depositing with the company any proxy form appointing a proxy, shall have the effect as if a period of 48 hours had been specified in such provision.

 

A company cannot issue an invitation at its expense asking any member to appoint a particular person as proxy. If the company does so, every officer in default shall be liable to fine up to Rs1,000. But if a proxy form is sent at the request of a member, the officer shall not be liable. Every member entitled to vote at a meeting of the company, during the period beginning 24 hours before the date fixed for the meeting and ending with the conclusion of the meeting may inspect proxy forms at any time during business hours by giving 3 days notice to the company of his intention to do so.

 

The proxy form must be in writing and be signed by the member or his authorised attorney duly authorised in writing or if the appointer is a company, the proxy form must be under its seal or be signed by an officer or an attorney duly authorised by it.

 

The proxy can be revoked by the member at any time, and is automatically revoked by the death or insolvency of the member. The member may revoke the proxy by voting himself before the proxy has voted, but once the proxy has exercised the vote, the member cannot retract his vote. Where two proxy forms by the same shareholder are lodged in respect of the same votes, the last proxy form will be treated as the correct proxy form.

 

A proxy is not entitled to vote except on a poll. Therefore, a proxy cannot vote on show of hands.

 

What are the Power of Company Law Board to Order Calling of Extraordinary General Meeting ?

If for any reason, it is impracticable to call a meeting of a company, other than an annual general meeting, or to hold or conduct the meeting of the company, the Company Law Board may, either i) on its own motion, or ii) on the application of any director of the company, or of any member of the company, who would be entitled to vote at the meeting, order a meeting to be called and conducted as the Company Law Board thinks fit, and may also give such other ancillary and consequential directions as it thinks fit expedient. A meeting so called and conducted shall be deemed to be a meeting of the company duly called and conducted.

Procedure for Application under Section 186 :

An application by a director or a member of a company for this purpose is required to be made to the Regional Bench of the Company Law Board before whom the petition is to be made in Form No 1 specified in Annexure II to the CLB Regulations with a fee of Rs200. The petition must be accompanied with the following documents –

Evidence in proof of status of the applicant.

Affidavit verifying the petition.

Bank draft evidencing payment of application fee.

Memorandum of appearance with copy of the Board’s resolution or executed vakalat nama, as the case may be.

D. Class Meeting

Class meetings are meetings which are held by holders of a particular class of shares, e.g., preference shareholders. Such meetings are normally called when it is proposed to vary the rights of that particular class of shares. At such meetings, these members dicuss the pros and cons of the proposal and vote accordingly. (See provisions on variations of shareholder’s rights). Class meetings are held to pass resolution which will bind only the members of the class concerned, and only members of that class can attend and vote.

Unless the articles of the company or a contract binding on the persons concerned otherwise provides, all provisions pertaining to calling of a general meeting and its conduct apply to class meetings in like manner as they apply with respect to general meetings of the company.

II. Meetings of the Board of Directors

– Meeting of the Board of Directors

– Meeting of a Committee of the Board

III. Other Meetings

A. Meeting of debenture holders

A company issuing debentures may provide for the holding of meetings of the debentureholders. At such meetings, generally nmmatters pertaining to the variation in terms of security or to alteration of their rights are discussed. All matters connected with the holding, conduct and proceedings of the meetings of the debentureholders are normally specified in the Debenture Trust Deed. The decisions at the meeting made by the prescribed majority are valid and lawful and binding upon the minority.

B. Meeting of creditors

Sometimes, a company, either as a running concern or in the event of winding up, has to make certain arrangements with its creditors. Meetings of creditors may be called for this purpose. Eg U/s 393, a company may enter into arrangements with creditors with the sanction of the Court for reconstruction or any arrangement with its creditors. The court, on application, may order the holding of a creditors’ s meeting. If the scheme of arrangement is agreed to by majority in number of holding debts to value of the three-fourth of the total value of the debts, the court may sanction the scheme. A certified copy of the court’s order is then filed with the Registrar and it is binding on all the creditors and the company only after it is filed with Registrar.

Similarly, in case of winding up of a company, a meeting of creditors and of contributories is held to ascertain the total amount due by the company and also to appoint a liquidator to wind up the affairs of the company.

Requisites of a Valid Meetings The following conditions must be satisfied for a meeting to be called a valid meeting :-

It must be properly convened. The persons calling the meeting must be authorised to do so.

Proper and adequate notice must have been given to all those entitled to attend.

The meeting must be legally constituted. There maust be a chairperson. The rules of quorum must be maintained and the provisions of the Companies Act, 1956 and the articles must be complied with.

The business at the meeting must be validly transacted.. The meeting must be conducted in accordance with the regulations governing the meetings.

Notice of General Meeting

A meeting cannot be held unless a proper notice has been given to all persons entitled to attend the meeting at the proper time, containing the necessary information. A notice convening a general meeting must be given at least 21 clear days prior to the date of meeting. However, an annual general meeting may be called and held with a shorter notice, if it is consented to by all the members entitled to vote at the meeting. In respect of any other meeting, it may be called and held with a shorter notice, if at least members holding 95 percent of the total voting power of the Company consent to a shorter notice.

Notice of every meeting of company must be sent to all members entitled to attend and vote at the meeting. Notice of the AGM must be given to the statutory auditor of the company.

Accidental omission to give notice to, or the non-receipt of notice by, any member or any other person on whom it should be given will not invalidate the proceedings of the meeting. The notice may be given to any member either personally or by sending it by post to him at his registered address, or if there is none in India, to any address within India supplied by him for the purpose. Where notice is sent by post, service is effected by properly addressing, pre-paying and posting the notice. A notice may be given to joint holders by giving it to the jointholder first named in the register of members. A notice of meeting may also be given by advertising the same in a newspaper circulating in the neighbourhood of the registered office of the company and it shall be deemed to be served on every member who has to registered address in India for the giving of notices to him.

A notice calling a meeting must state the place, day and hour of the meeting and must contain the agenda of the meeting. If the meeting is a statutory or annual general meeting, notice must describe it as such. Where any items of special business are to be transacted at the meeting, an explanatory statement setting out all materials facts concerning each item of the special business including the concern or interest, if any, therein of every director and manager, is any, must be annexed to the notice. If it is intended to propose any resolution as a special resolution, such intention should be specified.

A notice convening an AGM must be accompanied by the annual accounts of the company, the director’s report and the auditor’s report. The copies of these documents could, however, be sent less than 21 days before of the date of the meeting if agreed to by all members entitled to vote at the meeting.

List the different Kinds of Company Meetings?

Broadly, meetings in a company are of the following types :-

I. Meetings of Members :

These are meetings where the members / shareholders of the company meet and discuss various matters. Member’s meetings are of the following types :-

A. Statutory Meeting :

A public company limited by shares or a guarantee company having share capital is required to hold a statutory meeting. Such a statutory meeting is held only once in the lifetime of the company. Such a meeting must be held within a period of not less than one month or within a period not more than six months from the date on which it is entitled to commence business i.e. it obtains certificate of commencement of business. In a statutory meeting, the following matters only can be discussed :-

Floatation of shares / debentures by the company

Modification to contracts mentioned in the prospectus

The purpose of the meeting is to enable members to know all important matters pertaining to the formation of the company and its initial life history. The matters discussed include which shares have been taken up, what money has been received, what contracts have been entered into, what sums have been spent on preliminary expenses, etc. The members of the company present at the meeting may discuss any other matter relating to the formation of the Company or arising out of the statutory report also, even if no prior notice has been given for such other discussions but no resolution can be passed of which notice have not been given in accordance with the provisions of the Act.

A notice of at least 21 days before the meeting must be given to members unless consent is accorded to a shorter notice by members, holding not less than 95% of voting rights in the company.

A statutory meeting may be adjourned from time to time by the members present at the meeting.

The Board of Directors must prepare and send to every member a report called the “Statutory Report” at least 21 days before the day on which the meeting is to be held. But if all the members entitled to attend and vote at the meeting agree, the report could be forwarded later also. The report should be certified as correct by at least two directors, one of whom must be the managing director, where there is one, and must also be certified as correct by the auditors of the company with respect to the shares allotted by the company, the cash received in respect of such shares and the receipts and payments of the company. A certified copy of the report must be sent to the Registrar for registration immediately after copies have been sent to the members of the company.

A list of members showing their names, addresses and occupations together with the number shares held by each member must be kept in readiness and produced at the commencement of the meeting and kept open for inspection during the meeting.

If default is made in complying with the above provisions, every director or other officer of the company who is in default shall be punishable with fine upto Rs. 500. The Registrar or a contributory may file a petition for the winding up of the company if default is made in delivering the statutory report to the Registrar or in holding the statutory meeting on or after 14 days after the last date on which the statutory meeting ought to have been held.

Contents of Statutory Report must provide the following particulars:- (a)The total number of shares allotted, distinguishing those fully or partly paid-up, otherwise than in cash, the extent to which partly paid shares are paid-up, and in both cases the consideration for which they were allotted.(b) The total amount of cash received by the company in respect of all shares allotted, distinguishing as aforesaid.(c) An abstract of the receipts and payments upto a date within 7 days of the date of the report and the balance of cash and bank accounts in hand, and an account of preliminary expenses.(d) Any commission or discount paid or to be paid on the issue or sale of shares or debentures must be separately shown in the aforesaid abstract.(e) The names, addresses and occupations of directors, auditors, manager and secretary, if any, of the company and the changes which have taken place in the names, addresses and occupations of the above since the date of incorporation.(f) Particulars of any contracts to be submitted to the meeting for approval and modifications done or proposed.(g) If the company has entered into any underwriting contracts, the extent, if any, to which they have not been carried out and the reasons for the failure.(h) The arrears, if any, due on calls from every director and from the manager.(i) The particulars of any commission or brokerage paid or to be paid, in connection with the issue or sale of shares or debentures to any director or to the manager.

The auditors have to certify that all information regarding calls and allotment of shares are correct.

B. Annual General Meeting

Must be held by every type of company, public or private, limited by shares or by guarantee, with or without share capital or unlimited company, once a year. Every company must in each year hold an annual general meeting. Not more than 15 months must elapse between two annual general meetings. However, a company may hold its first annual general meeting within 18 months from the date of its incorporation. In such a case, it need not hold any annual general meeting in the year of its incorporation as well as in the following year only.

In the case there is any difficulty in holding any annual general meeting (except the first annual meeting), the Registrar may, for any special reasons shown, grant an extension of time for holding the meeting by a period not exceeding 3 months provided the application for the purpose is made before the due date of the annual general meeting. However, generally delay in the completion of the audit of the annual accounts of the company is not treated as “special reason” for granting extension of time for holding its annual general meeting. Generally, in such circumstances, an AGM is convened and held at the proper time . all matters other than the accounts are discussed. All other resolutions are passed and the meeting is adjourned to a later date for discussing the final accounts of the company. However, the adjourned meeting must be held before the last day of holding the AGM.

A notice of at least 21 days before the meeting must be given to members unless consent is accorded to a shorter notice by members, holding not less than 95% of voting rights in the company. The notice must state that the meeting is an annual general meeting. The time, date and place of the meeting must be mentioned in the notice. The notice of the meeting must be accompanied by a copy of the annual accounts of the company, director’s report on the position of the company for the year and auditor’s report on the accounts. Companies having share capital should also state in the notice that a member is entitled to attend and vote at the meeting and is also entitled to appoint proxies in his absence. A proxy need not be a member of that company. A proxy form should be enclosed with the notice. The proxy forms are required to be submitted to the company at least 48 hours before the meeting.

The AGM must be held on a working day during business hours at the registered office of the company or at some other place within the city, town or village in which the registered office of the company is situated. The Central Government may, however, exempt any class of companies from the above provisions. If any day is declared by the Central government to be a public holiday after the issue of the notice convening such meeting, such a day will be traeted as a working day.

A company may, by appropriate provisions in its its articles, fix the time for its annual general meeting and may also by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings.

Companies licensed under Section 25 are exempt from the above provisions provided that the time, date and place of each annual general meeting are decided upon beforehand by the Board of Directors having regard to the directions, if any, given in this regard by the company in general meeting.

In case of default in holding an annual general meeting, the following are the consequences :-

Any member of the company may apply to the Company Law Board. The Company Law Board may call, or direct the calling of the meeting, and give such ancillary or consequential directions as it may consider expedient in relation to the calling, holding and conducting of the meeting. The Company Law Board may direct that one member present in person or by proxy shall be deemed to constitute the meeting. A meeting held in pursuance of this order will be deemed to be an annual general meeting of the company. An application by a member of the company for this purpose must be made to the concerned Regional Bench of the Company Law Board by way of petition in Form No. 1 in Annexure II to the CLB Regulations with a fee of rupees fifty accompanied by (i) affidavit verifying the petition, (ii) bank draft for payment of application fee.

Fine which may extend to Rs. 5,000 on the company and every officer of the company who is in default may be levied and for continuing default, a further fine of Rs. 250 per day during which the default continues may be levied.

Business to be Transacted at Annual General Meeting :

At every AGM, the following matters must be discussed and decided. Since such matters are discussed at every AGM, they are known as ordinary business. All other matters and business to be discussed at the AGM are specila business.

The following matters constitute ordinary business at an AGM :-

Consideration of annual accounts, director’s report and the auditor’s report

Declaration of dividend

Appointment of directors in the place of those retiring

Appointment of and the fixing of the remuneration of the statutory auditors.

In case any other business ( special business ) has to be discussed and decided upon, an explanatory statement of the special business must also accompany the notice calling the meeting. The notice must should also give the nature and extent of the interest of the directors or manager in the special business, as also the extent of the shareholding interest in the company of every such person. In case approval of any document has to be done by the members at the meeting, the notice must also state that the document would be available for inspection at the Registered Office of the company during the specified dates and timings.

C. Extraordinary General Meeting

Every general meeting (i.e. meeting of members of the company) other than the statutory meeting and the annual general meeting or any adjournment thereof, is an extraordinary general meeting. Such meeting is usually called by the Board of Directors for some urgent business which cannot wait to be decided till the next AGM. Every business transacted at such a meeting is special business. An explanatory statement of the special business must also accompany the notice calling the meeting. The notice must should also give the nature and extent of the interest of the directors or manager in the special business, as also the extent of the shareholding interest in the company of every such person. In case approval of any document has to be done by the members at the meeting, the notice mus also state that the document would be available for inspection at the Registered Office of the company during the specified dates and timings.

The Articles of Association of a Company may contain provisions for convening an extraordinary general meeting. Eg. It may provide that “the board may, whenever it thinks fit, call an extraordinary general meeting” or it may provide that “if at any time there are not within India, directors capable of acting who are sufficient in number to form a quorum, any director or any two members of the company may call an extraordinary general meeting”.

Extraordinary General Meeting on Requisition :

The members of a company have the right to require the calling of an extraordinary general meeting by the directors. The board of directors of a company must call an extraordinary general meeting if required to do so by the following number of members :-

members of the company holding at the date of making the demand for an EGM not less than one-tenth of such of the voting rights in regard to the matter to be discussed at the meeting ; or

if the company has no share capital, the members representing not less than one-tenth of the total voting rights at that date in regard to the said matter.

The requisition must state the objects of the meetings and must be signed by the requisitioning members. The requisition must be deposited at the company’s registered office. When the requisition is deposited at the registered office of the company, the directors should within 21 days, move to call a meeting and the meeting should be actually be held within 45 days from the date of the lodgement of the requisition. If the directors fail to call and hold the meeting as aforesaid, the requisitionists or any of them meeting the requirements at (a) or (b) above, as the case may be, may themselves proceed to call meeting within 3 months from the date of the requisition, and claim the necessary expenses from the company. The company can make good this sum from the directors in default. At such an EGM, any business which is not covered by the agenda mentioned in the notice of the meeting cannot be voted upon.

What is a company?

A company is an association of several persons. Decisions are made according to the view of the majority. Various matters have to be discussed and decided upon. These discussions take place at the various meetings which take place between members and between the directors. Needless to say, the importance of meetings cannot be under-emphasised in case of companies. The Companies Act, 1956 contains several provisions regarding meetings. These provisions have to be understood and followed.

 

For a meeting, there must be at least 2 persons attending the meeting. One member cannot constitute a company meeting even if he holds proxies for other members.

 

What is bias? What is its significance in Administrative law?

The word Bias itself expresses its meaning that a man should not be a judge in his own case. The concept of bias has a close connection with  Administrative  law. Administration pre-supposes absence of bias in its activities. Bias makes  administrative  action an invalid action and this can be challenged in a court of law on the sole basis of bias. Bias has to be excluded  in judicial process also. An essential element of judicial process is that the judge has to be impartial  and neutral  and to be in a position to apply his mind objectively to the dispute before him. Proceedings before a judge may be vitiated if he is biased, if there are factors which may influence him to improperly  favour  one party at the cost of the other party in the dispute. The important question is to be examined is to what extent the rule against bias applies to adjudicatory bodies. Bias is usually of three kinds: pecuniary bias, personal bias, bias as to subject matter or policy bias.

 Pecuniary bias

A direct pecuniary interest, howsoever  small or insignificant, will disqualify a person from acting as a judge. A judge should not have a pecuniary interest  in the dispute in which he is acting as a judge. As having interest in the dispute he may take such a decision which will harm the other party  unreasonably. And this will go against the principles of natural justice.

Personal bias

Various factors contribute to personal bias in the adjudicator for or against one party in a dispute before him. He may be a friend or relation of the party,or have some business or professional relation with him, or may have some personal animosity or hostility against him.

The test of bias is whether there was a real likelihood of bias. Real likelihood of bias means the suspicion of bias must be based  on reasonable circumstances which indicate that there is every possibility of occurrence of bias from the perspective of a common man.

Bias as to subject matter or policy bias       

Bias may arise because the adjudicator may have a general interest in the subject matter in dispute becaue of his association as a member or otherwise of a private body, or with the administration in his official capacity. Generally speaking these do not operate as disqualification, unless the adjudicator has intimately  identified himself with the issues in question. Bias as to subject matter happens in three types: Partial connection with the issue, Departmental or official bias, Prior utterance and pre-judgement of issues, Acting under dictation.

  • Partial connection with the issue

To disqualify there has to be some close and direct connection the adjudicating authority and the issue in question. The connection should not be remote.

  • Departmental or official bias

In many departmental proceedings before bureaucratic authorities, one of the parties is usually the administration itself. Therefore, an authority may have official bias towards the department to which it is attached, in a dispute between the department and a private party, or may have a policy bias.

  • Prior utterance or pre-judgement of issues

Sometimes the minister or the official concerned may announce before hand the general policy which he intends to follow. The adjudicator must handle the case with open mind, he should keep aside his opinion on the issue and decide the case completely on the particular facts of the given case.

  • Acting under dictation

Sometimes, the adjudicating authority may dispose of a case under dictation from a superior authority. The adjudicating authority without applying its own mind, just applying the order of the senior on the case, violates the principles of natural justice.   However dictation is different from direction given by senior official. Direction means guidance by the superior authority as to how the case is to be decided by the authority.

After considering altl these points it can be concluded that rule of bias has application in administrative law and it is an integral part of administrative law.

How audi alteram partem forms an integral part of natural justice?

It is the first principle of civilized jurisprudence that person against whom an action is sought to be taken, or whose right or interest is being affected, should be given a reasonable opportunity to defend himself.

The main question regarding this is what are the components of fair hearing?

There is no uniform body of pro­­­cedural norms to be followed by adjudicatory bodies.These norms may vary from a mere written submission by the affected person to a full-fledged hearing. Hearing involves a number of stages and it will be convenient to see what the position is with respect to each of these.

Generally hearing involves following stages:

  • Notice
  • Hearing: A hearing to be fair must fulfill several conditions-
  1. Receiving evidence produced by the individual
  2. Disclosure of materials to the party
  3. Opportunity to cross-examine witnesses
  • Right of counsel
  • Reasoned Decisions

Notice

A basic principle of natural justice is that before adjudication starts, the authority concerned should give to the affected party a notice of the case against him so that he may adequately defend himself. Any proceeding taken without notice violate natural justice. It is the sine qua non of fair hearing.

Hearing

Oral hearing is not regarded as an essential part of natural justice that in every case there should be oral hearing. Natural justice does not  necessarily  predicate an oral hearing unless the context requires otherwise.

Right of counsel

This right is generally denied in administrative law in India and it is justified on the ground that it saves expenses and thus protects the poor against the rich, reduces delay, and prevents the proceedings from being formalized and technical. But it is permitted in exceptional cases.

Reasoned decisions

Until a few years back, it was thought that the requirement for adjudicatory  bodies to give reasons for their decisions was not a part of natural justice and, accordingly, adjudicatory bodies were not obliged to give reasons in support of their decisions.

But after the decision of Maneka Gandhi’s case it is now settled law of the land that it is necessary to give reasons for decision of the case.

Thus audi alteram partem is an integral part of Natural justice. Denial of this right amounts to violation of natural justice

RTI: Right To Information

What is RTI?

RTI stands for Right to Information. Right to Information is a part of fundamental rights under Article 19(1) of the Indian Constitution. Article 19 (1) says that every citizen has freedom of speech and expression. As early as in 1976, the Supreme Court said in the case of Raj Narain vs State of UP, that people cannot speak or express themselves unless they know. Therefore, right to information is embedded in article 19. In the same case, Supreme Court further said that India is a democracy. People are the masters. Therefore, the masters have a right to know how the governments, meant to serve them, are functioning. Further, every citizen pays taxes. Even a beggar on the street pays tax (in the form of sales tax, excise duty etc) when he buys a piece of soap from the market. The citizens therefore, have a right to know how their money was being spent. These three principles were laid down by the Supreme Court while saying that RTI is a part of our fundamental rights.

If RTI is a fundamental right, then why do we need an Act to give us this right?

This is because if you went to any Government Department and told the officer there, “RTI is my fundamental right, and that I am the master of this country. Therefore, please show me all your files”, he would not do that. In all probability, he would throw you out of his room. Therefore, we need a machinery or a process through which we can exercise this fundamental right. Right to Information Act 2005, which became effective on 13th October 2005, provides that machinery. Therefore, Right to Information Act does not give us any new right. It simply lays down the process on how to apply for information, where to apply, how much fees etc.

When did RTI Act come into force?

The Central Right to Information Act came into force on the 12th October, 2005. However, before that 9 state Governments had passed state Acts. These were J & K, Delhi, Rajasthan, Madhya Pradesh, Maharashtra, Karnataka, Tamil Nadu, Assam & Goa.

What rights are available under RTI Act 2005?

Right to Information Act 2005 empowers every citizen to

  • Ask any questions from the Government or seek any information
  • Take copies of any government documents
  • Inspect any government documents.
  • Inspect any Government works
  • Take samples of materials of any Government work.

Who is covered under RTI?

The Central RTI Act extends to the whole of India except the State of Jammu and Kashmir. All bodies, which are constituted under the Constitution or under any law or under any Government notification or all bodies, including NGOs, which are owned, controlled or substantially financed by the Government are covered.

What is “substantially financed”?

This is neither defined under RTI Act nor under any other Act. So, this issue will evolve with time, maybe through some court orders etc.

Are Private bodies covered under the RTI Act?

All private bodies, which are owned, controlled or substantially financed by the Government, are directly covered. Others are indirectly covered. That is, if a government department can access information from any private body under any other Act, the same can be accessed by the citizen under the RTI Act through that government department.

Isn’t Official Secrets Act 1923 an obstacle to the implementation of RTI Act?

No. Sec 22 of the RTI Act 2005 clearly says that RTI Act would over ride all existing Acts including Officials Secrets Act.

Can the PIO refuse to give me information?

A PIO can refuse information on 11 subjects that are listed in section 8 of the RTI Act. These include information received in confidence from foreign governments, information prejudicial to security, strategic, scientific or economic interests of the country, breach of privilege of legislatures, etc.

There is a list of 18 agencies given in second schedule of the Act to which RTI Act does not apply. However, they also have to give information if it relates to matters pertaining to allegations of corruption or human rights violations.

Does the Act provide for partial disclosure?

Yes. Under Section 10 of the RTI Act, access may be provided to that part of the record which does not contain information which is exempt from disclosure under this Act.

Can access be denied to file notings ?

No. File notings are an integral part of the government file and are subject to disclosure under the Act. This has been clarified by the Central Information Commission in one of its orders on 31st Jan 2006.

Indian Diaspora: Overseas

  1. 1.   What are the emigration rules for Indian nationals? Which categories of persons do not require emigration checks?

Indian Nationals intending to go overseas for the purpose of employment need to undergo an emigration check done by the Protector of Emigrants (POEs).

List of persons/categories of workers in whose case Emigration Check is Not Required (ECNR):

1. All holders of Diplomatic/Official Passports

2. All Gazetted Government Servants

3. All income-tax payers (including agricultural income tax payers) in their individual capacity

4. All professional degree holders, such as Doctors holding MBBS degrees or Degrees in Ayurveda or Homeopathy, Accredited journalists, Engineers, Chartered Accountants, Lecturers, Teachers, Scientists, Advocates, etc.

5. Spouses and dependent children of category of persons listed from (1) to (4)

6. Persons holding class 10 qualification or higher degrees.

7. Seamen who are in possession of CDC or Sea Cadets, Desk Cadets

(i) Who have passed final examination of three year B.Sc. Nautical

Sciences Courses at T S Chanakya, Mumbai; and

(ii) Who have undergone three months pre-sea training at any of the government approved Training Institutes such as T S Chanakya, T S Rehman, T S Jawahar, MTI (SCI) and NIPM, Chennai after production of identity cards issued by the Shipping Master, Mumbai/Kolkata/Chennai.

8. Persons holding permanent immigration visas, such as the visas of UK, USA and Australia.

9. Persons possessing two years’ diploma from any institute recognized by the National Council for Vocational Training (NCVT) or State Council of Vocational Training (SCVT) or persons holding three years’ diploma/equivalent degree from institutions like polytechnics recognized by Central/State Governments.

10. Nurses possessing qualifications recognized under the Indian Nursing council Act, 1947.

11. All persons above the age of 50 years.

12. All persons who have been staying abroad for more than three years (the period of three years could be either in one stretch or broken) and spouses.

13. Children below 18 years of age.

2.   Can NRIs and PIOs open an account with Indian banks?

Yes, NRIs can maintain both Rupee and foreign currency accounts in India. RBI has authorized certain banks for Foreign Currency accounts for the NRIs.

3.   Is registration of NRI marriages compulsory in India?

Keeping in view the frequent reports regarding failed and fraudulent marriages between overseas Indian grooms and Indian girls, the National Commission for Women (NCW) has recommended that NRIs registration of marriages be made mandatory. However, the Government has not passed any rule in this regard as of now.

4.   What is the percentage of seats reserved for NRIs and PIOs in the Indian educational institutes and universities?

1/3 of the 15 per cent supernumerary seats in educational institutions (except medical) are reserved for children of NRIs in the Gulf and South East Asia.

5.   Is there a limit to the number of investments for acquiring commercial properties in India?

No, there is no limit to the investments that NRIs can make in immovable commercial properties in India.

6.   How can an NRI or PIO adopt a child in India?

NRIs and PIOs need to contact the Central Adoptation Resource Agency (CARA) for child adoption in India. CARA is an autonomous Body under the Ministry of Social Justice & Empowerment, Government of India.

7.   What is meant by OCB?

Overseas Corporate Body (OCB) means a company, partnership firm, society and other corporate body owned directly or indirectly to the extent of at least sixty per cent by Non-Resident Indians and includes overseas trust in which not less than sixty percent beneficial interest is held by Non-resident Indians directly or indirectly but irrevocably, which was in existence as on September 16, 2003 and was eligible to undertake transactions pursuant to the general permission granted under Foreign Exchange Management Regulations

8.   What are the investment options for NRIs in India?

NRIs can invest in India as under:

  • Investment under Automatic Route with repatriation benefits
  • Investment with Government approval
  • Other investments with repatriation benefits
  • Investments up to 100% equity without repatriation benefits
  • Other investments by NRIs/OCBs without repatriation benefits.

The Ministry of Overseas Indian Affairs has designed a Ready Reckoner to provide information on various investment opportunities open to Indian Diaspora at a glance.

 

What is READY RECKONER FOR NRI INVESTMENT?

The Ready Reckoner has been designed to provide at a glance, the various investment opportunities, which are available to Non Resident Indian (NRI), Person of Indian Origin (PIO) or Overseas Corporate Bodies (OCBs). For further information, relevant guidelines and instructions of the Reserve Bank of India or the Department for Industrial Policy and Promotion may be consulted.

Non-Resident Indian/Person of Indian Origin/Overseas Corporate Bodies

Who is a Non-Resident Indian? 

“Non-Resident Indian (NRI) means a person resident outside India who is a citizen of India or is a person of Indian origin”.

Who is a Person of Indian Origin?

For the purposes of availing of the facilities of opening and maintenance of bank accounts and investments in shares/securities in India

Person of Indian origin means a citizen of any country other than Pakistan or Bangladesh if

  • he at any time, held an Indian passport
  • he or either of his parents or any of his grandparents was a citizen of India by virtue of the constitution of India or Citizenship Act, 1955 (57 of 1995)
  • the person is a spouse of an Indian citizen

For investments in immovable properties:

Person of Indian origin means an individual (not being a citizen of Pakistan or Bangladesh or Afghanistan or Bhutan or Sri Lanka or Nepal or China or Iran)

  • who at any time, held an Indian passport
  • who or either of whose father or whose grandfather was a citizen of India by virtue of the Constitution of India or the Citizenship Act, 1955 (57 of 1955)

 

9.   Can NRIs invest in shares, debentures and units of mutual funds in India?

Yes, NRIs can invest in government and UTI bonds, debentures, shares and securities as per the rules laid down by FEMA (Foreign Exchange Management Act.)

Can NRIs and PIOs acquire any immovable property in India by the way of inheritance?

Yes, foreign citizens of Indian origin can acquire immovable property (IP) in India by the way of inheritance. However, citizens of Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Iran, Nepal and Bhutan (whether resident in India or not) are prohibited from acquiring or transferring any IP in India without prior approval of the RBI.

Can a person of Indian origin, resident outside India gift properties acquired earlier in terms of the provisions of FEMA?

Yes. A person of Indian origin resident outside India may transfer residential or commercial property in India by way of gift to a person resident in India or to a person resident outside India who is a citizen of India or to a person of Indian origin resident outside India.

10.  Whom can NRIs and PIOs contact if they face any problem in India?

In case of any complaint, NRIs /PIOs can meet the Protector of Emigrants (PDE) on Tuesdays and Fridays between 11.30 A.M. to 12.30 P.M without any prior appointment. Complaints can also be registered online at indianemigration[at]nic[dot]in.

11.  What are the financial services provided by the Government of India to NRIs and PIOs?

Ministry of Overseas Indian Affairs (Govt. of India) and UTI Bank have recently joined hands to provide web enabled PRAVASI BHARATIYA SEVA on the Ministry of Overseas Indian Affairs.

This site enables the Overseas Indians to send money to their family in India from overseas and to update themselves on the investment opportunities, tax issues and real estate market scenarios in India.

12 Where can an NRI/PIO open a demat account? Does an NRI need to seek permission from the RBI for the same?

NRI/PIO can open a demat account with any Depository Participant [DP] of NSDL. The NRI/PIO needs to mention the type [‘NRI’ as compared to ‘Resident’] and the sub-type [‘Repatriable’ or ‘Non-Repatriable’] in the account opening form collected from the DP. No permission is required from RBI to open a demat account. However, credits and debits from demat account may require general or specific permissions as the case may be, from designated authorised dealers

13. When does a Non-resident Indian become a resident of India?

A Non-Resident Indian will be treated as a person resident in India if he returns to or stays in India, for:

  • Taking up employment in India, or
  • Carrying on a business or vocation in India, or
  • Any other purpose for an uncertain period
  1. 14.  If NRI/PIO desires to make investments under different schemes, can he hold all such securities in a single demat account?

No. Securities received against investments under ‘Foreign Direct Investment scheme (FDI)’, ‘Portfolio Investment scheme (PIS)’ and ‘Scheme for Investment’ on non – repatriation basis have to be credited into separate demat accounts. Investment under PIS could be on repatriation or non – repatriation basis. Investment under FDI scheme is on repatriation basis.

15.Can NRIs avail loans against their bank accounts in India? If yes, then for what purposes?

There are certain banks authorized by the Reserve Bank of India that are permitted to grant loans to NRIs holding NRE, NRO and FCNR accounts in India against their security of term deposits.

NRIs can avail loans for the acquisition of flat/house in India against NRE or FCNR fixed deposits on repatriable basis, provided the amount to be repatriated is governed by Foreign Exchange Management Regulation (Acquisition and Transfer of Immovable Property in India).

16 Do NRIs require the prior approval of RBI for maintaining bank accounts in India?

NRIs can open and maintain bank accounts in India without the prior permission RBI.

17.  Which all banks are authorized by the RBI for opening accounts for NRIs?

For the list of authorized dealers that can open accounts in the name of NRIs in India refer to RBI Rules.

18. Are OCBs allowed to make investments under the Portfolio Investment Scheme for NRIs?

RBI has banned OCBs (Overseas Corporate Bodies) from investing under the Portfolio Scheme that is solely for the benefit of NRIs. In fact, the category of OCB has been abolished on a whole and they can’t invest in India in any manner. However, OCBs can continue to sell and hold shares purchased before 29th November 2001.

19. What is the fee for applying for PIO card and OCI card?

Fees to be paid along with PIO and OCI card application are Rs.1, 150 and Rs.12, 650 respectively.

The amount is to be paid through a Demand Draft addressed in favour of “Pay and Account Officer (Secretariat), Ministry of Home Affairs” payable at New Delhi.

20. What are the abbreviations and terms commonly used in relation to Indian Diaspora?

Cited below is a list of abbreviations with their full forms that will reduce confusion regarding specific terms used in relation to Indian Diaspora.

  • ECR– Emigration Check Required
  • FEMA– Foreign Exchange Management Act
  • FIPB– Foreign Investment Promotion Board
  • KIP- Know India Programme
  • MEA– Ministry of External Affairs
  • MHA– Ministry of Home Affairs
  • MOIA– Ministry of Overseas Indian Affairs
  • NRI– Non-resident Indian
  • OCB– Overseas Corporate Body
  • OCI– Overseas Citizenship of India
  • PBD– Pravasi Bharatiya Divas
  • PIO– Persons of Indian Origin
  • JCI– Joint Commission International
  1. 21. Can an NRI or foreigner drive a vehicle in India on the basis of European license or driving license issued by any foreign country?

He cannot. However if he has obtained an International Driving Permit (IDP) from his own country and his country is a signatory to the 1949 Geneva Convention he can drive in India the specified category of vehicle till the IDP is valid. Please refer to the procedure of obtaining an India Driving Licence.

22. What is the validity of International Driving Permit (IDP) issued in India?

The validity of IDP is one year from the date of its issue or the validity of the domestic license whichever is earlier. Please refer to the procedure of obtaining an International Driving License in India.

23. Can International Driving Permit (IDP) be issued to an NRI/foreigner?

No IDP in India can be issued to NRI/foreigner. Only Indian citizens are eligible for IDP. Please refer to the procedure of  obtaining an International Driving License in India.

FAQs on Trademark

 What is a service mark? 

A service mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services.

A SERVICE MARK is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product.

 What is a collective mark? 

A COLLECTIVE MARK is a trademark or service mark used, or intended to be used, in commerce, by the members of a cooperative, an association, or other collective group or organization, including a mark which indicates membership in a union, an association, or other organization.

What is a Trade Name?

A trade name is a company name. Some trade names are also used in a way that makes them trademarks as well. For example, ACME Inc. may use the mark, “Widgets R Us” or “ACME Widgets.” If they use the former, then ACME remains a trade name only. If they use the latter, then ACME is both a trade name, because ACME it is the name to identify their company, and a trademark, because they identify the source of their products with the word, “ACME-�

How are trademarks, copyrights and patents different? 

A trademark is different from a copyright or a patent or geographical indication. A copyright protects an original artistic or literary work; a patent protects an invention whereas a geographical indication is used to identify goods having special characteristics originating from a definite territory.

Patents protect new inventions, discoveries and designs, while copyrights protect original works of authorship such as paintings, computer programs, sculpture and architectural designs. Trademarks do not protect creation or inventiveness at all. In fact, a trademark can be acquired with no creative or innovative input from the owner whatsoever. For instance, when the public spontaneously began referring to “Coca Cola” as “Coke,” the new term became a source identifier for the product, and thus automatically a trademark.

What is the difference between a trade name and a trademark? 

A trade name or business name is the name which identifies a business. It is either the formal name under which a business is incorporated or organized, or the assumed or fictitious business name adopted by the business. A trademark or service mark is the word(s), logo, or slogan used in connection with goods or services, such as a brand name. Trade names are sometimes used as trademarks or service marks, but this is not always the case. 

What a trademark does?

Trademarks benefit both businesses and individuals. They allow businesses to build an identity and reputation with customers, and thereby grow or expand. Trademarks also allow individuals to be better consumers. In fact, Trademark law is the original consumer protection statute. It ensures that consumers can repeat their positive buying experiences by searching out familiar brand names, and avoid bad buying experiences by steering clear of brands they didn’t like.

What are some tips for using a trademark or service mark? 

 

Once a mark has been cleared, decide on a consistent way in which the mark will appear. For goods, use the mark on the goods themselves or on the packaging of the goods in a prominent manner in which potential customers will see it when deciding whether to purchase the goods. For services, use the mark in promotional material and advertising of the services. The mark should be used as an adjective rather than as a name for the goods or services, in order to prevent the mark from becoming commonly known as a generic name for the goods rather than a brand name, and thus a loss of trademark rights. Use a “TM” symbol or “SM” symbol for trademarks or service marks, respectively, as a superscript or subscript immediately following the mark. Do not use the “®” symbol without a registration. Separate the mark from the generic term for the goods or services, and from any designation of the business name or address, using spacing, font size or style, color, etc. Seek advice of counsel regarding registering the mark.

When can I use the TM or SM symbols?

The “TM” and “SM” designations (“trademark” and “service mark,” respectively) are commonly used as superscripts or subscripts after trademarks and service marks to place the public on notice that rights in the mark are being claimed. These symbols may be used as soon as the mark is in use without any registration of the mark.

 When can I use the ® symbol?

The ® designation is reserved to indicate that the mark is registered as Trademark. This symbol should not be used under any circumstances until a certificate of registration has issued on the mark.

Do I need to register my trademark?

No. You should use the “TM” or “SM’ designation to indicate that your brand name/slogan belongs to you. The use of TM is a way of informing the world that you have (or you think you have) a protectable trademark.

Rights given to trademark owners

Trademarks are essentially limited monopolies over the use of symbols in business. The government grants trademark owners the right to exclude all other businesses from using a similar mark on related goods or services. For instance, nobody in the computer industry is allowed to use the name “apple” as a way of identifying themselves, except for Apple Computers, Inc., who was the first to use that symbol to sell computers. If someone selling computers uses “apple,” Apple Computers, Inc. has the right to sue immediately in court and force that company to stop using the mark immediately, and without compensation. In fact, they may even be able to make the other party pay monetary compensation for their losses, and have them pay attorneys fees as well.

One when selling related goods or products. Because the government can enforce this exclusivity, trademarks are considered assets of a business, and thus can be licensed or even mortgaged as collateral.

 How are Trademark Rights established?

Trademark rights are established through either (1) “actual use” of the mark, or (2) the filing with a bona fide “intent to use” the mark in commerce.

 What are the remedies available against Infringement and passing-off?

Two types of remedies are available to the owner of a trademark for unauthorized use of his or her mark or its imitation by a third party.

These remedies are: – -�an action for infringement’ in case of a registered trademark and -�an action for passing off*’ in the case of an unregistered trademark.

The basic difference between an infringement action and an action for passing off is that the former is a statutory remedy and the latter is a common law remedy. Accordingly, in order to establish infringement with regard to a registered trademark, it is necessary only to establish that the infringing mark is identical or deceptively similar to the registered mark and no further proof is required. In the case of a passing off action, proving that the marks are identical or deceptively similar alone is not sufficient. The use of the mark should be likely to deceive or cause confusion. Further, in a passing off action it is necessary to prove that the use of the trademark by the defendant is likely to cause injury or damage to the plaintiff’s goodwill, whereas in an infringement suit, the use of the mark by the defendant need not cause any injury to the plaintiff.

However, the registration cannot upstage a prior consistent user of trademark in India, for the rule followed is -�priority in adoption prevails over priority in registration`.

In many other jurisdictions like Saudi Arabia, Nepal etc. where the first party to register a trademark is considered the party to own the mark, regardless of prior use of the mark.

What are the safeguards to be taken by the proprietor of a registered trade mark to protect his rights?

The proprietor should use and renew the trademark regularly and in time. If others misuse the trademark he should file a suit for infringement and passing off and also take criminal action.

The proprietor should keep a watch in respect of trademarks published in the Trade Marks Journal and institute opposition proceedings if identical or deceptively similar trademarks are advertised. He should initiate rectification proceedings if an identical or deceptively similar trademark is registered.

What to do to have the mark registered in other countries?

Trademark rights are granted on a country-by-country basis. There is no system as yet wherein a single trademark application is sufficient to protect the trademark right internationally. If the owner of a mark wishes to protect a mark in other countries, the owner must seek protection in each country separately under the relevant laws. However, Paris convention provides certain privileges to member countries in trademark registration. A party that files their first trademark application in a member state of the Convention, such as India, can within six months of that filing date file applications in other member countries claiming the priority of the first application. If such a trademark is accepted for registration it will be deemed to have registered from the same date on which the application is made in the home country.

It is also possible to utilize multinational filing systems in certain regions in order to obtain trademark protection. For example, Belgium, the Netherlands and Luxembourg have a single trademark registry, commonly referred to as the Benelux Trademark Register. The European Union consisting of 15 countries has adopted its own trademark system, known as the Community Trademark. The African Organization for Intellectual Property (OAPI), a group of African nations, have replaced their national trademark offices with a common trademark office which offers a single trademark registration valid in all of the member states.

Is an INDIAN Trademark registration valid outside the INDIA?

No. Certain countries, however, do recognize a Indian registration as a basis for registering the mark in those countries. Many countries maintain a register of trademarks. Keep in mind that the Internet is changing international trademark boundaries. By adding your trademarks, you are being proactive in minimizing the potential cost of international litigation.

What is meant by “goods/services” classification?

Almost all jurisdictions including India employ a classification system in which goods and services have been grouped into classes for registration. Most countries follow the same classification system, namely the International Classification of Goods and Services, which consists of 34 classes of goods and 8 classes of services. (The WIPO recently revised the Nice Classification, adding three service classes (43, 44, and 45) and restructuring Class 42, retaining certain services. This provision has not yet been implemented in India). See Trademark Classification

Can I register my domain name as a trademark or service mark?

Yes, so long as it is being used as a trademark or service mark. If it is merely used to indicate the URL or address at which a web site may be found, such use is not sufficient. It must be used as a source identifier for the goods or services.

DOES REGISTRATION COVER OTHER COUNTRIES?

A INDIAN trade mark registration only covers INDIA. It does not, therefore, afford protection in any of other country, and a separate application must be filed in each of these countries if registered protection is required. Applications for registration in foreign countries can be based on an INDIAN trade mark application. Convention priority may be claimed if foreign applications are filed within six months after filing of the INDIAN application. Such applications are made in terms of the International Convention of Paris, as in the case of patents, but the period provided is limited to six months.

LICENSING: HOW TO PROTECT THE LICENSOR AND LICENSEE

The registered proprietor of a trade mark is obviously entitled to use his own mark. The proprietor can also authorise third parties to use a trade mark. In such a case there are advantages to the licensees being recorded in the Trade Marks Register as “Registered Users”.

HOW CAN THE APPLICATION FOR REGISTRATION BE OPPOSED?

Within a period of three months from the date of advertisement in the Indian Trademark Journal, any party may lodge opposition to the registration of the trade mark. Extensions of this period can be obtained on application to the Registrar

Various grounds of opposition are available and include conflict with prior registered or common law trademarks. Generally trademarks which do not conform to the requirements for registration may be opposed.

Opposition is an important facility, especially in that it affords trade mark owners the opportunity of ensuring that competitors do not register similar trademarks.

Good to know

  • Make sure your sign is distinctive.
  • Search before you register a trademark.

If you register a trademark that is similar or identical to one that is already registered, your mark may infringe on the prior one. The owner of the prior trademark can possibly even demand the cancellation of your mark and financial compensation. Because we do not determine whether your mark has already been registered in a similar or identical form at the time of application, it is important for you to do it.

 

Note that trademarks can also infringe on business and domain names.

  • Select your goods and service classes carefully.

A trademark is always protected only for certain classes of goods and services. When you register, you must indicate the goods and services for which you wish to register and use your trademark. If you don-�t use your trademark for the products (or services) you claimed within five years of registration, you can lose your trademark protection.

  • Consult a trademark attorney.

We would be glad to answer your questions about the registration procedure. If you are unsure about choosing a trademark or your trademark strategy, or you would like advice in an infringement case, consult a Lawyer.

Steps to take before registering

The following steps apply to both kinds of trademark registrations.

  • Figure out what kind of trademark you have and what the trademark is.

Most trademarks consist of words, designs, or composite marks made up of a combination of words and designs. Other kinds of marks include sound, color, and scent marks-you should probably contact a trademark attorney to proceed with registering those.

 

Is it advisable to conduct a trademark search before filing an application?

Before making an application for registration it is prudent to make an inspection of the already registered trademarks to ensure that registration may not be denied in view of resemblance of the proposed mark to an existing one or prohibited one.

How preparing an application for Registration?

An application for trademark may be made on Form TM-1 with prescribed fee at Trade Marks Registry. The application is examined to ascertain whether it is distinctive and does not conflict with existing registered or pending trademarks and examination report issued. If it is found be acceptable then it is advertised in the Trade Marks Journal to allow others to oppose the registration. If there is no opposition or if the opposition is decided in favour of the applicant then the mark is registered and a certificate of registration is issued. If the applicant’s response does not overcome all objections, the Registrar will issue a final refusal. The applicant may then appeal to the Appellate Board, an administrative tribunal.

FAQ On Defamation

What is defamation?

Answer Generally, defamation is a false and unprivileged statement of fact that is harmful to someone’s reputation, and published “with fault,” meaning as a result of negligence or malice. State laws often define defamation in specific ways. Libel is a written defamation; slander is a spoken defamation.

What are the elements of a defamation claim?

Answer The party making a defamation claim (plaintiff) must ordinarily prove four elements:

  1. a publication to one other than the person defamed;
  2. a false statement of fact;
  3. that is understood as

a. being of and concerning the plaintiff; and
b. tending to harm the reputation of plaintiff.

  1. If the plaintiff is a public figure, he or she must also prove actual malice.

 

What defenses may be available to someone who is sued for defamation?

Answer There are ordinarily 6 possible defenses available to a defendant who is sued for libel (published defamatory communication.)
1. Truth. This is a complete defense, but may be difficult to prove.
2. Fair comment on a matter of public interest. This defense applies to “opinion” only, as compared to a statement of fact. The defendant usually needs to prove that the opinion is honestly held and the comments were not motivated by actual “malice.” ( Malice means knowledge of falsity or reckless disregard for the truth of falsity of the defamatory statement.)
3. Privilege. The privilege may be absolute or qualified. Privilege generally exists where the speaker or writer has a duty to communicate to a specific person or persons on a given occasion. In some cases the privilege is qualified and may be lost if the publication is unnecessarily wide or made with malice.
4. Consent. This is rarely available, as plaintiffs will not ordinarily agree to the publication of statements that they find offensive.
5. Innocent dissemination. In some caes a party who has no knowledge of the content of a defamatory statement may use this defense. For example, a mailman who delivers a sealed envelope containing a defamatory statement, is not legally liable for any damages that come about from the statement.
6. Plaintiff’s poor reputation. Defendant can mitigate (lessen) damages for a defamatory statement by proving that the plaintiff did not have a good reputation to begin with. Defendant ordinarily can prove plaintiff’s poor reputation by calling witnesses with knowledge of the plaintiff’s prior reputation relating to the defamatory content.

 

Can an opinion be defamatory?

Answer No? But merely labeling a statement as your “opinion” does not make it so. Courts look at whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact. (A verifiable fact is one capable of being proven true or false.) This is determined in light of the context of the statement. A few courts have said that statements made in the context of an Internet bulletin board or chat room are highly likely to be opinions or hyperbole, but they do look at the remark in context to see if it’s likely to be seen as a true, even if controversial, opinion (“I really hate George Lucas’ new movie”) rather than an assertion of fact dressed up as an opinion (“It’s my opinion that Trinity is the hacker who broke into the IRS database”).

Is there a difference between reporting on public and private figures?

Answer Yes. A private figure claiming defamation? Your neighbor, your roommate, the guy who walks his dog by your favorite coffee shop? Only has to prove you acted negligently, which is to say that a “reasonable person” would not have published the defamatory statement.

A public figure must show “actual malice”? That you published with either knowledge of falsity or in reckless disregard for the truth. This is a difficult standard for a plaintiff to meet.

 

Who is a public figure?

Answer A public figure is someone who has actively sought, in a given matter of public interest, to influence the resolution of the matter. In addition to the obvious public figures ? a government employee, a senator, a presidential candidate ? someone may be a limited-purpose public figure. A limited-purpose public figure is one who (a) voluntarily participates in a discussion about a public controversy, and (b) has access to the media to get his or her own view across. One can also be an involuntary limited-purpose public figure ? for example, an air traffic controller on duty at time of fatal crash was held to be an involuntary, limited-purpose public figure, due to his role in a major public occurrence.

Examples of public figures

  • A former city attorney and an attorney for a corporation organized to recall members of city counsel
  • A psychologist who conducted “nude marathon” group therapy
  • A land developer seeking public approval for housing near a toxic chemical plant
  • Members of an activist group who spoke with reporters at public events

Corporations are not always public figures. They are judged by the same standards as individuals.

 

 

What is libel?

Answer Libel is a false statement of fact expressed in a fixed medium, usually writing but also a picture, sign, or electronic broadcast. See what are the elements of a defamation claim?

 

What is slander?

Answer Slander is a defamatory statement expressed in a transitory medium, such as verbal speech. It is considered a civil injury, as opposed to a criminal offence. Actual damages must be proven for someone to be held liable for slander. The tort of slander is often compared with that of libel, which is also characterized as a defamatory statement, but one made in a fixed form, such as writing.

 

What is libel per se?

Answer When libel is clear on its face, without the need for any explanatory matter, it is called libel per se. The following are often found to be libelous per se

A statement that falsely

  • Charges any person with crime, or with having been indicted, convicted, or punished for crime;
  • Imputes in him the present existence of an infectious, contagious, or loathsome disease;
  • Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects that the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
  • Imputes to him impotence or a want of chastity.

Of course, context can still matter. If you respond to a post you don’t like by beginning “Jane, you ignorant slut,” it may imply a want of chastity on Jane’s part. But you have a good chance of convincing a court this was mere hyperbole and pop cultural reference, not a false statement of fact.

 

What is the “publication” of a defamatory statement?

Answer Publication is the dissemination of the defamatory statement to any person other than the person about whom the statement is written or spoken.

 

May someone other than the person who originally made the defamatory statement be legally liable in defamation?

Answer One who “publishes” a defamatory statement may be liable. However, 47 U.S.C. sec. 230 says that online service providers are not publishers of content posted by their users. Section 230 gives most ISPs and message board hosts the discretion to keep postings or delete them, whichever they prefer, in response to claims by others that a posting is defamatory or libelous. Most ISPs and message board hosts also post terms of service that give them the right to delete or not delete messages as they see fit and such terms have generally been held to be enforceable under law.

 

What is Malice or “Actual Malice”?

Answer Malice is often defined as, “the intent, without justification or excuse, to commit a wrongful act.” It is the conscious, intentional wrongdoing with the intent of doing harm to do the victim. In many civil cases, a finding that a defendant acted with malice will often open the door to liability or increased damages, such as punitive damages. “Actual malice” is a legal term of art that is mainly relevant to defamation claims. “Actual Malice” is found to be present when a false statement is published with either a) actual knowledge of its falsity or b) reckless disregard for its falsity– a “should have known” standard. One cannot be held liable for publishing untrue statements about public figures (or companies) without being found to have acted with “actual malice”.

Can an ISP or the host of the message board or chat room be held liable for
defamatory of libelous statements made by others on the message board?

Answer Not in the United States. Under 47 U.S.C. sec. 230(c)(1) (CDA Sec. 230) “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This provision has been uniformly interpreted by the Courts to provide complete protection against defamation or libel claims made against an ISP, message board or chat room where the statements are made by third parties. Note that this immunity does not extend to claims made under intellectual property laws.

 

Must an ISP or message board host delete postings that someone tells him/her are defamatory? Can the ISP or message board delete postings in response to a request from a third party?

Answer No, they are not required to delete. 47 U.S.C. sec. 230 gives most ISPs and message board hosts the discretion to keep postings or delete them, whichever they prefer, in response to claims by others that a posting is defamatory or libelous. Most ISPs and message board hosts also post terms of service that give them the right to delete or not delete messages as they see fit and such terms have generally been held to be enforceable under law.

 

What are the rules about reporting on a public proceeding?

Answer In some states, there are legal privileges protecting fair comments about public proceedings. For example, in California you have a right to make “a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued.” This provision has been applied to posting on an online message board, Colt v. Freedom Communications, Inc., and would likely also be applied to blogs. The California privilege also extends to fair and true reports of public meetings, if the publication of the matter complained of was for the public benefit.

 

What is a “fair and true report”?

Answer A report is “fair and true” if it captures the substance, gist, or sting of the proceeding. The report need not track verbatim the underlying proceeding, but should not deviate so far as to produce a different effect on the reader.

 

What if I want to report on a public controversy?

Answer Many jurisdictions recognize a “neutral reportage” privilege, which protects “accurate and disinterested reporting” about potentially libelous accusations arising in public controversies. As one court put it, “The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.”

 

If I write something defamatory, will a retraction help?

Answer Some jurisdictions have retraction statutes that provide protection from defamation lawsuits if the publisher retracts the allegedly defamatory statement. For example, in California, a plaintiff who fails to demand a retraction of a statement made in a newspaper or radio or television broadcast, or who demands and receives a retraction, is limited to getting “special damages” ? the specific monetary losses caused by the libelous speech. While few courts have addressed retraction statutes with regard to online publications, a Georgia court denied punitive damages based on the plaintiff’s failure to request a retraction for something posted on an Internet bulletin board. (See Mathis v. Cannon)

If you get a reasonable retraction request, it may help you to comply. The retraction must be “substantially as conspicuous” as the original alleged defamation.

 

What if I change the person’s name?

Answer To state a defamation claim, the person claiming defamation need not be mentioned by name? The plaintiff only needs to be reasonably identifiable. So if you defame the “government executive who makes his home at 1600 Pennsylvania Avenue,” it is still reasonably identifiable as the president.

 

What’s the statute of limitation on libel?

Answer Most states have a statute of limitations on libel claims, after which point the plaintiff cannot sue over the statement. For example, in California, the one-year statute of limitations starts when the statement is first published to the public. In certain circumstances, such as when the defendant cannot be identified, a plaintiff can have more time to file a claim. Most courts have rejected claims that publishing online amounts to “continuous” publication, and start the statute of limitations ticking when the claimed defamation was first published.

 

What are some examples of libelous and non-libelous statements?

Answer The following are a couple of examples from California cases; note the law may vary from state to state. Libelous (when false)

  • Charging someone with being a communist (in 1959)
  • Calling an attorney a “crook”
  • Describing a woman as a call girl
  • Accusing a minister of unethical conduct
  • Accusing a father of violating the confidence of son

Not-libelous

  • Calling a political foe a “thief” and “liar” in chance encounter (because hyperbole in context)
  • Calling a TV show participant a “local loser,” “chicken butt” and “big skank”
  • Calling someone a “bitch” or a “son of a bitch”
  • Changing product code name from “Carl Sagan” to “Butt Head Astronomer”

Since libel is considered in context, do not take these examples to be a hard and fast rule about particular phrases. Generally, the non-libelous examples are hyperbole or opinion, while the libelous statements are stating a defamatory fact.

 

What is a “false light” claim?

Answer Some states allow people to sue for damages that arise when others place them in a false light. Information presented in a “false light” is portrayed as factual, but creates a false impression about the plaintiff (i.e., a photograph of plaintiffs in an article about sexual abuse, because it creates the impression that the depicted persons are victims of sexual abuse). False light claims are subject to the constitutional protections discussed above.

 

What is a SLAPP suit?

Answer SLAPP stands for Strategic Lawsuit Against Public Participation, or lawsuits aimed at squelching speech and involvement in government. Many states, including California, have anti-SLAPP statutes allowing one who has been targeted by a SLAPP to sue back.

Online, SLAPP suits typically involve a person who has posted anonymous criticisms of a corporation or public figure on the Internet. The target of the criticism then files a lawsuit so they can issue a subpoena to the Web site or Internet Service Provider (ISP) involved and thereby discover the identity of their anonymous critic. Many SLAPPers stop after discovering their critic’s identity, using the tactic to intimidate or silence online speakers even though they were engaging in protected expression under the First Amendment.

 

What is trade libel?

Answer Trade libel is defamation against the goods or services of a company or business. For example, saying that you found a severed finger in a particular company’s chili (if it isn’t true).

Along with the ordinary elements of a defamation claim, (see What are the elements of a defamation claim?) the person suing must prove money damages.

Defenses include 1) that the statement was true; 2) that the statement was opinion, not fact; and 3) that the plaintiff did not suffer monetary damage.

 

What are “special damages”? When are they awarded?

Answer “Special damages” are awards made to plaintiffs to compensate for actual monetary losses. In a libel case, the “special damages” would be awarded to compensate for specific losses caused by the libelous speech. The plaintiff would be required to show the specific monetary losses were caused by the libelous speech, in addition to showing that the speech was libel, in order to be awarded special damages.

 

What is the duty of confidentiality of an employee?

Answer Confidential information or trade secrets received during the course of an employer-employee relationship cannot be used or disclosed to the detriment of the employer during or after termination of the relationship, even if the employee and the employer had no express contract prohibiting the use or disclosure.
However, an employee can use all the skills and knowledge he acquired during his employment, if the skills and knowledge are commonly used in the trade.

Many states have adopted the Uniform Trade Secrets Act, which is intended to provide states with a legal framework for improved trade-secret protection. The Act contains a definition of trade secrets which is consistent with common-law definitions. Factors used to determine if information is a trade secret include

? The extent to which the information is known outside of the employer’s business.
? The extent to which the information is known by employees and others involved in the business.
? The extent of measures taken by the employer to guard the secrecy of the information.
? The value of the information to the employer and to competitors.
? The amount of effort or money expended by the company in developing the information.
? The extent to which the information could be easily or readily obtained through an independent source.

Trade secrets need not be technical in nature. Market-related information such as information on current and future projects, as well as potential future opportunities for a firm, may constitute a trade secret.

 

What is Slander Per Se?

Answer Slander is a defamatory statement expressed in a transitory medium, such as verbal speech. It is considered a civil injury, as opposed to a criminal offence. The tort of slander is often compared with that of libel, which is also characterized as a defamatory statement, but one made in a fixed form, such as writing.
Slander Per Se is slander for which special damages (e.g. actual loss in revenue) need not be proved in order to recover general damages (e.g. for emotional distress). Slander Per Se only applies to slanderous publications which imputes to the plaintiff one of the four following categories
1)a crime involving moral turpitude,
2)a loathsome disease (e.g. a sexually transmitted disease),
3)Unchastity (particularly concerns women)
4)conduct that would adversely affect ones business or profession

General damages are presumed legitimate even in abscence of proof of special damages when a plaintiff proves slander in one of these four cateogories.

 

How do courts look at the context of a statement?

Answer For a blog, a court would likely start with the general tenor, setting, and format of the blog, as well as the context of the links through which the user accessed the particular entry. Next the court would look at the specific context and content of the blog entry, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the blog’s audience.

Context is critical. For example, it was not libel for ESPN to caption a photo “Evel Knievel” proves you’re never too old to be a pimp,” since it was (in context) “not intended as a criminal accusation, nor was it reasonably susceptible to such a literal interpretation. Ironically, it was most likely intended as a compliment.” However, it would be defamatory to falsely assert “our dad’s a pimp” or to accuse your dad of “dabbling in the pimptorial arts.” (Real case, but the defendant sons succeeded in a truth defense).

 

Do blogs have the same constitutional protections as mainstream media?

Answer Yes. The US Supreme Court has said that “in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals and organizations engaged in the same activities.”

 

What are the privacy torts?

Answer Much privacy law is state law, and may differ from state to state. As general categories, states may recognize interests in

  • unreasonable intrusion upon the seclusion of another;
  • appropriation of the other’s name or likeness;
  • unreasonable publicity given to the other’s private life; and
  • publicity that unreasonably places the other in a false light before the public.
    (from the Second Restatement of Torts, ? 652A)

 

Can I be sued for publishing somebody else’s private facts?

Answer Some jurisdictions allow lawsuits for the publication of private facts. In California, for example, the elements are (1) public disclosure; (2) of a private fact; (3) that is offensive to a reasonable person; and (4) which is not a legitimate matter of public concern. Publication on a blog would generally be considered public disclosure. However, if a private fact is deemed “newsworthy,” it may be legal to print it even if it might be considered “offensive to a reasonable person.”

 

What are private facts?

Answer Private facts are personal details about someone that have not been disclosed to the public. A person’s sexual orientation, a sex-change operation, and a private romantic encounter could all be private facts. Once publicly disclosed by that person, however, they move into the public domain.

 

What is offensive to a reasonable person?

Answer To state a claim, the plaintiff must show that the matter made public was one that would be offensive and objectionable to a reasonable person of ordinary sensibilities. For example, disclosing that the plaintiff returned $240,000 he found on the street was held not to be offensive, but the publication of an “upskirt” photo would likely be found to be offensive to a reasonable person.

 

How do I know if a private fact is “newsworthy”?

Answer A private fact is newsworthy if some reasonable members of the community could entertain a legitimate interest in it. Courts generally recognize that the public has a legitimate interest in almost all recent events, even if it involves private information about participants, as well as a legitimate interest in the private lives of prominent or notorious figures (such as actors, actresses, professional athletes, public officers, noted inventors, or war heroes). Newsworthiness is not limited to reports of current events, but extends to articles for the purposes of education, amusement, or enlightenment. However, a court may look at whether the private fact is pertinent to an otherwise newsworthy story.

 

What is “intrusion into seclusion”?

Answer Intrusion into seclusion occurs when you intrude upon the solitude or seclusion of another person or his private affairs or concerns, if the intrusion would be highly offensive to a reasonable person. It generally comes up in the context of paparazzi photographing celebrities, but covers any reasonable expectation of privacy that is intruded upon. If the person intruded upon gave you consent to do it – i.e., gave you permission to take his picture or write about him – then you have a defense against this claim. Interception of an electronic communication (i.e., an email or IM chat) can raise additional legal issues, such as federal wiretap laws.

 

What is a right of publicity claim?

Answer The right of publicity is a claim that you have used someone’s name or likeness to your commercial advantage without consent and resulting in injury. The plaintiff generally must prove that you’re using their image or likeness for advertising or other solicitations. Freedom of speech rights protect your use of a public figure’s name and likeness in a truthful way, but you can still be liable if a court determines that your use implied a false endorsement. Here are a few examples of cases where the right of publicity was at odds with the Constitution.

  • A newspaper’s 900 number survey to determine the favorite New Kid on the Block was found to be a constitutionally protected use of the band member’s name
  • A newspaper’s sale of a poster reproduction of its front page depicting Joe Montana was determined to merit protection under the First Amendment
  • A commercial featuring a robot resembling game show hostess Vanna White was found to infringe her right of publicity

 

What is a statement of verifiable fact?

Answer A statement of verifiable fact is a statement that conveys a provably false factual assertion, such as someone has committed murder or has cheated on his spouse. To illustrate this point, consider the following excerpt from a court (Vogel v. Felice) considering the alleged defamatory statement that plaintiffs were the top-ranking ‘Dumb Asses’ on defendant’s list of “Top Ten Dumb Asses”

A statement that the plaintiff is a “Dumb Ass,” even first among “Dumb Asses,” communicates no factual proposition susceptible of proof or refutation. It is true that “dumb” by itself can convey the relatively concrete meaning “lacking in intelligence.” Even so, depending on context, it may convey a lack less of objectively assayable mental function than of such imponderable and debatable virtues as judgment or wisdom. Here defendant did not use “dumb” in isolation, but as part of the idiomatic phrase, “dumb ass.” When applied to a whole human being, the term “ass” is a general expression of contempt essentially devoid of factual content. Adding the word “dumb” merely converts “contemptible person” to “contemptible fool.” Plaintiffs were justifiably insulted by this epithet, but they failed entirely to show how it could be found to convey a provable factual proposition. … If the meaning conveyed cannot by its nature be proved false, it cannot support a libel claim.

This California case also rejected a claim that the defendant linked the plaintiffs’ names to certain web addresses with objectionable addresses (i.e. www.satan.com), noting “merely linking a plaintiff’s name to the word “satan” conveys nothing more than the author’s opinion that there is something devilish or evil about the plaintiff.”

 

What is cyberstalking?

Answer It has been defined as the use of information and communications technology, particularly the Internet, by an individual or group of individuals, to harass another individual, group of individuals, or organization. The behavior includes false accusations, monitoring, the transmission of threats, identity theft, damage to data or equipment, the solicitation of minors for sexual purposes, and gathering information for harassment purposes. The harassment must be such that a reasonable person, in possession of the same information, would regard it as sufficient to cause another reasonable person distress.

The current U.S. anti-cyberstalking law can be found in 47 USCS ? 223

? 223. Obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications

(a) Prohibited acts generally. Whoever–
(1) in interstate or foreign communications–
(A) by means of a telecommunications device knowingly–
(i) makes, creates, or solicits, and
(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other communication which is obscene or child pornography, with intent to annoy, abuse, threaten, or harass another person;
(B) by means of a telecommunications device knowingly–
(i) makes, creates, or solicits, and
(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other communication which is obscene or child pornography, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication;
(C) makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications;
(D) makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or
(E) makes repeated telephone calls or repeatedly initiates communication with a telecommunications device, during which conversation or communication ensues, solely to harass any person at the called number or who receives the communication; or
(2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity,

shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.

(b) Prohibited acts for commercial purposes; defense to prosecution.
(1) Whoever knowingly–
(A) within the United States, by means of telephone, makes (directly or by recording device) any obscene communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or
(B) permits any telephone facility under such person’s control to be used for an activity prohibited by subparagraph (A), shall be fined in accordance with title 18, United States Code, or imprisoned not more than two years, or both.
(2) Whoever knowingly–
(A) within the United States, by means of telephone, makes (directly or by recording device) any indecent communication for commercial purposes which is available to any person under 18 years of age or to any other person without that person’s consent, regardless of whether the maker of such communication placed the call; or
(B) permits any telephone facility under such person’s control to be used for an activity prohibited by subparagraph (A), shall be fined not more than $ 50,000 or imprisoned not more than six months, or both.
(3) It is a defense to prosecution under paragraph (2) of this subsection that the defendant restricted access to the prohibited communication to persons 18 years of age or older in accordance with subsection (c) of this section and with such procedures as the Commission may prescribe by regulation.
(4) In addition to the penalties under paragraph (1), whoever, within the United States, intentionally violates paragraph (1) or (2) shall be subject to a fine of not more than $ 50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.
(5) (A) In addition to the penalties under paragraphs (1), (2), and (5), whoever, within the United States, violates paragraph (1) or (2) shall be subject to a civil fine of not more than $ 50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.
(B) A fine under this paragraph may be assessed either–
(i) by a court, pursuant to civil action by the Commission or any attorney employed by the Commission who is designated by the Commission for such purposes, or
(ii) by the Commission after appropriate administrative proceedings.
(6) The Attorney General may bring a suit in the appropriate district court of the United States to enjoin any act or practice which violates paragraph (1) or (2). An injunction may be granted in accordance with the Federal Rules of Civil Procedure.

(c) Restriction on access to subscribers by common carriers; judicial remedies respecting restrictions.
(1) A common carrier within the District of Columbia or within any State, or in interstate or foreign commerce, shall not, to the extent technically feasible, provide access to a communication specified in subsection (b) from the telephone of any subscriber who has not previously requested in writing the carrier to provide access to such communication if the carrier collects from subscribers an identifiable charge for such communication that the carrier remits, in whole or in part, to the provider of such communication.
(2) Except as provided in paragraph (3), no cause of action may be brought in any court or administrative agency against any common carrier, or any of its affiliates, including their officers, directors, employees, agents, or authorized representatives on account of–
(A) any action which the carrier demonstrates was taken in good faith to restrict access pursuant to paragraph (1) of this subsection; or
(B) any access permitted–
(i) in good faith reliance upon the lack of any representation by a provider of communications that communications provided by that provider are communications specified in subsection (b), or
(ii) because a specific representation by the provider did not allow the carrier, acting in good faith, a sufficient period to restrict access to communications described in subsection (b).
(3) Notwithstanding paragraph (2) of this subsection, a provider of communications services to which subscribers are denied access pursuant to paragraph (1) of this subsection may bring an action for a declaratory judgment or similar action in a court. Any such action shall be limited to the  of whether the communications which the provider seeks to provide fall within the category of communications to which the carrier will provide access only to subscribers who have previously requested such access.

(d) Sending or displaying offensive material to persons under 18. Whoever–
(1) in interstate or foreign communications knowingly–
(A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or
(B) uses any interactive computer service to display in a manner available to a person under 18 years of age,
any comment, request, suggestion, proposal, image, or other communication that is obscene or child pornography, regardless of whether the user of such service placed the call or initiated the communication; or
(2) knowingly permits any telecommunications facility under such person’s control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity,

shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.

(e) Defenses. In addition to any other defenses available by law
(1) No person shall be held to have violated subsection (a) or (d) solely for providing access or connection to or from a facility, system, or network not under that person’s control, including transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing such access or connection that does not include the creation of the content of the communication.
(2) The defenses provided by paragraph (1) of this subsection shall not be applicable to a person who is a conspirator with an entity actively involved in the creation or knowing distribution of communications that violate this section, or who knowingly advertises the availability of such communications.
(3) The defenses provided in paragraph (1) of this subsection shall not be applicable to a person who provides access or connection to a facility, system, or network engaged in the violation of this section that is owned or controlled by such person.
(4) No employer shall be held liable under this section for the actions of an employee or agent unless the employee’s or agent’s conduct is within the scope of his or her employment or agency and the employer (A) having knowledge of such conduct, authorizes or ratifies such conduct, or (B) recklessly disregards such conduct.
(5) It is a defense to a prosecution under subsection (a)(1)(B) or (d), or under subsection (a)(2) with respect to the use of a facility for an activity under subsection (a)(1)(B) that a person–
(A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or
(B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number.
(6) The Commission may describe measures which are reasonable, effective, and appropriate to restrict access to prohibited communications under subsection (d). Nothing in this section authorizes the Commission to enforce, or is intended to provide the Commission with the authority to approve, sanction, or permit, the use of such measures. The Commission shall have no enforcement authority over the failure to utilize such measures. The Commission shall not endorse specific products relating to such measures. The use of such measures shall be admitted as evidence of good faith efforts for purposes of paragraph (5) in any action arising under subsection (d). Nothing in this section shall be construed to treat interactive computer services as common carriers or telecommunications carriers.

(f) Violations of law required; commercial entities, nonprofit libraries, or institutions of higher education.
(1) No cause of action may be brought in any court or administrative agency against any person on account of any activity that is not in violation of any law punishable by criminal or civil penalty, and that the person has taken in good faith to implement a defense authorized under this section or otherwise to restrict or prevent the transmission of, or access to, a communication specified in this section.
(2) No State or local government may impose any liability for commercial activities or actions by commercial entities, nonprofit libraries, or institutions of higher education in connection with an activity or action described in subsection (a)(2) or (d) that is inconsistent with the treatment of those activities or actions under this section Provided, however, That nothing herein shall preclude any State or local government from enacting and enforcing complementary oversight, liability, and regulatory systems, procedures, and requirements, so long as such systems, procedures, and requirements govern only intrastate services and do not result in the imposition of inconsistent rights, duties or obligations on the provision of interstate services. Nothing in this subsection shall preclude any State or local government from governing conduct not covered by this section.

(g) Application and enforcement of other Federal law. Nothing in subsection (a), (d), (e), or (f) or in the defenses to prosecution under subsection (a) or (d) shall be construed to affect or limit the application or enforcement of any other Federal law.

(h) Definitions. For purposes of this section–
(1) The use of the term “telecommunications device” in this section–
(A) shall not impose new obligations on broadcasting station licensees and cable operators covered by obscenity and indecency provisions elsewhere in this Act [47 USCS ?? 151 et seq.];
(B) does not include an interactive computer service; and
(C) in the case of subparagraph (C) of subsection (a)(1), includes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet (as such term is defined in section 1104 of the Internet Tax Freedom Act (47 U.S.C. 151 note)).
(2) The term “interactive computer service” has the meaning provided in section 230(f)(2) [47 USCS ? 230(f)(2)].
(3) The term “access software” means software (including client or server software) or enabling tools that do not create or provide the content of the communication but that allow a user to do any one or more of the following
(A) filter, screen, allow, or disallow content;
(B) pick, choose, analyze, or digest content; or
(C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.
(4) The term “institution of higher education” has the meaning provided in section 101 of the Higher Education Act of 1965 [20 USCS ? 1001].
(5) The term “library” means a library eligible for participation in State-based plans for funds under title III of the Library Services and Construction Act (20 U.S.C. 355e et seq.).

 

What is the duty of confidentiality of an employee?

Answer Confidential information or trade secrets received during the course of an employer-employee relationship cannot be used or disclosed to the detriment of the employer during or after termination of the relationship, even if the employee and the employer had no express contract prohibiting the use or disclosure.

However, an employee can use all the skills and knowledge he acquired during his employment, if the skills and knowledge are commonly used in the trade.

Many states have adopted the Uniform Trade Secrets Act, which is intended to provide states with a legal framework for improved trade-secret protection. The Act contains a definition of trade secrets which is consistent with common-law definitions. Factors used to determine if information is a trade secret include

-The extent to which the information is known outside of the employer’s business.

-The extent to which the information is known by employees and others involved in the business.

-The extent of measures taken by the employer to guard the secrecy of the information.

-The value of the information to the employer and to competitors.

-The amount of effort or money expended by the company in developing the information.

-The extent to which the information could be easily or readily obtained through an independent source.

Trade secrets need not be technical in nature. Market-related information such as information on current and future projects, as well as potential future opportunities for a firm, may constitute a trade secret.

 

What are considered public records?

Answer Public records is information that has been filed or recorded by local, state, federal or other government agencies, such as corporate and property records. Public records are created by the federal and local government, (vital records, immigration records, real estate records, driving records, criminal records, etc.) or by the individual (magazine subscriptions, voter registration, etc.). Most essential public records are maintained by the government and many are accessible to the public either free-of-charge or for an administrative fee. Availability is determined by federal, state, and local regulations.

What is FIR or First Information Report ?

What is an FIR?

The information about the commission of a cognizable offence given to a Police officer is “first information” and the corresponding report is understood to mean the “First Information Report (FIR)”. It is a Document written by a Police officer on the register prescribed by the state government.

Why is FIR Needed?

An FIR is a very important document against a cognizable offence as it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police take up investigation of the case.

Who can lodge an FIR?

Any person who is a victim of any cognizable offence or who is a witness to any such offence or who has knowledge about the commission of any such offence can lodge an F.I.R.

 

You can file FIR If:

  • You are the person against whom the offence has been committed.
  • You know yourself about an offence which has been committed.
  • You have seen the offence being committed.

What is the procedure of filing an FIR?

The procedure of filing an FIR is prescribed in Section 154 of the Criminal Procedure Code, 1973. When information about the commission of a cognizable offence is given orally, the police must write it down.

It is your right as a person giving information or making a complaint to demand that the information recorded by the police is read over to you.

Once the information has been recorded by the police, it must be signed by the person giving the information.

Where can an FIR Lodge?

 An F.I.R. can be lodged in the police station of the concerned area in whose jurisdiction the offence has been committed or in any Police Station.

What should you mention in the FIR?

  • Your name and address
  • Date, time and location of the incident you are reporting
  • The true facts of the incident as they occurred
  • Names and descriptions of the persons involved in the incident

 Could the FIR get recorded through Phone or E. Mail?

 Yes, The FIR could be get recorded on telephone or even through e-mail and it is not necessary for the informer to be present personally before the police for registration of FIR.

 Is it necessary that the FIR should get recorded on the same prescribed place Police Station?

No, the FIR can be got recorded at any police station, irrespective of where the offence took place.

 What are the advantages of early recording of FIR?

 The FIR should be got recorded as early as possible, after the offence.

The benefit of the early recording of FIR helps in the arrest of the real offenders and also helps in the collection of evidence of the crime.

What can you do if your FIR is not registered?

 You can meet the Superintendent of Police or other higher officers like Deputy Inspector General of Police & Inspector General of Police and bring your complaint to their notice.

you can send your complaint in writing and by post to the Superintendent of Police concerned.

If the Superintendent of Police is satisfied with your complaint, he shall either investigate the case himself or order an investigation to be made.

You can file a private complaint before the court having jurisdiction.

You can also make a complaint to the State Human Rights Commission or the National Human Rights Commission if the police do nothing to enforce the law or do it in a biased and corrupt manner.

Which things must do after FIR got registered?

You should sign the report only after verifying that the information recorded by the police is as per the details given by you.

  • People who cannot read or write must put their left thumb impression on the document after being satisfied that it is a correct record.
  • Always ask for a copy of the FIR, if the police do not give it to you. It is your right to get it free of cost.

In which circumstances the police may not investigate a complaint even if you file an FIR?

Sometimes the police will not investigate a complaint even if you have already filed an FIR

  • The case is not serious in nature
  • The police feel that there is not enough ground to investigate.
  • However, the police must record the reasons for not conducting an investigation and in the latter case must also inform you.

— [Section 157, Criminal Procedure Code, 1973]

What is copyright?

copyrightCopyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights depending on the work.

Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. Creativity being the keystone of progress, no civilized society can afford to ignore the basic requirement of encouraging the same. Economic and social development of a society is dependent on creativity. The protection provided by copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software, creates an atmosphere conducive to creativity, which induces them to create more and motivates others to create

The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses. Unlike the case with patents, copyright protects the expressions and not the ideas. There is no copyright protection for ideas, procedures, methods of operation or mathematical concepts as such (Please see Article 9.2. of TRIPS)

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

Is it necessary to register a work to claim copyright?

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

The Copyright Office has been set up to provide registration facilities to all types of works and is headed by a Registrar of Copyrights and is located at 4th Floor Jeevan Deep Building , New Delhi- 110 001. The applications for registration of works can be filled at the counter provided at the Copyright Office from 2.30 P.M. to 4.30. P.M. from Monday to Friday. The applications are also accepted by post. On-line registration through “E-filing facility “ has been provided from 14th February 2014, which facilitates the applicants to file applications at the time and place chosen by them.

The procedure for registration is as follows:
a) Application for registration is to be made on Form IV ( Including Statement of Particulars and Statement of Further Particulars) as prescribed in the first schedule to the Rules ;
b) Separate applications should be made for registration of each work;
c) Each application should be accompanied by the requisite fee prescribed in the second schedule to the Rules ; and
d) The applications should be signed by the applicant or the advocate in whose favor a Vakalatnama or Power of Attorney has been executed. The Power of Attorney signed by the party and accepted by the advocate should also be enclosed.

e) The fee is either in the form of Demand Draft,Indian Postal Order favoring “Registrar Of Copyright Payable At New Delhi” or through E payment

Each and every column of the Statement of Particulars and Statement of Further Particulars should be replied specifically.

One can pay fee in favor of ‘Registrar of Copyrights’ payable at ‘new Delhi’. The fee is not reimbursable in case of rejection of the application.

Click Here For the Fee Details

 

Yes. Any individual who is an author or rights owner or assignee or legal heir can file application for copyright of a work either at the copyright office or by post or by e-filing facility from the copyright Office web-site “www.copyright.gov.in”

Chapter XIII of the Copyright Rules, 2013, as amended, sets out the procedure for the registration of a work. Copies of the Act and Rules can be obtained from the Manager of Publications, Publication Branch, Civil Lines, Delhi or his authorized dealers on payment or download from the Copyright Office web-site “www.copyright.gov.in”

Whether unpublished works are registered?

Yes. Both published and unpublished works can be registered. Copyright in works published before 21st January, 1958, i.e., before the Copyright Act, 1957 came in force, can also be registered, provided the works still enjoy copyright. Three copies of published work may be sent along with the application. If the work to be registered is unpublished, a copy of the manuscript has to be sent along with the application for affixing the stamp of the Copyright Office in proof of the work having been registered. In case two copies of the manuscript are sent, one copy of the same duly stamped will be returned, while the other will be retained, as far as possible, in the Copyright Office for record and will be kept confidential. It would also be open to the applicant to send only extracts from the unpublished work instead of the whole manuscript and ask for the return of the extracts after being stamped with the seal of the Copyright Office.

When a work has been registered as unpublished and subsequently it is published, the applicant may apply for changes in particulars entered in the Register of Copyright in Form V with prescribed fee.

The process of registration and fee for registration of copyright is same.

Whether computer Software or Computer Programme can be registered?

Yes. Computer Software or programme can be registered as a ‘literary work’. As per Section 2 (o) of the Copyright Act, 1957 “literary work” includes computer programmes, tables and compilations, including computer databases. ‘Source Code’ has also to be supplied along with the application for registration of copyright for software products.

How do I know if my case is a civil case?

In a civil case, the person who feels wronged decides whether to bring suit and also decides how much money in damages to seek.

In civil cases, if the defendant is found responsible, the court can enter a judgment for money damages, punitive damages, compensation for lost time/wages/income, and/or reimbursement for certain costs, maybe even specific performance of something to be done that was not done. The court also can issue injunctions against the defendant, and sometimes a court may enter a judgment awarding the plaintiff or the defendant for attorney’s fees. The judge cannot enter a judgment sending the defendant to jail or prison except in unusual cases where the defendant may have violated a court order.

How to file a Civil case in India?

There is a detailed procedure laid down, for filing a civil case-

Filing of Suit/Plaint
In layman’s language plaint is the written complaint/allegation.
One who files it is known as “Plaintiff” and against whom it is filed is known as “Defendant”
The plaint has to be filed within the time limit prescribed in the Limitation Act, and should be typed copy, in double line space.
Name of the Court, Nature of Complaint, Names and Address of parties to be suit has to be clearly mentioned.
Plaint should also contain verification from plaintiff, stating that, contents of the plaint are true and correct
Vakalatnama
A person/party filing a case, May also represent their own case personally in any court.
However, due to lack of knowledge of Law and Technical Procedures, Lawyers are engaged to report the interest of parties.
” Vakalatnama”, is a document, by which the party filing the case authorises the Advocate to represent on their behalf?
On General Terms, a Vakalatnama may contain the falling terms:
The client will not hold the Advocate responsible for any decision.
The client shall bear all the costs and/expenses incurred during the proceedings.
The advocate shall have right to retain the documents, unless complete fees are paid.
The client is free to disengage the Advocate at any stage of the Proceedings.
The Advocate shall have all the right to take decisions on his own in the court of Law, during the hearing, to the best interest of client.
Vakalatnama is affixed on the last page of plaint/suit and is kept alongwith court records.
No fees are required to be paid on it. However, nowadays, Delhi High court Rules require, a 10 Rupees. “Advocate Welfare Stamp” to be affixed on the Vakalatnama.
Plaint should also have the requisite court fees attached to it. Court fees are some nominal percentage of the value of the claim or value of the suit. The requisite amount of Court and stamp fees is different for every suit, and is mentioned in the “Court Fees Stamp Act.”
Court Fees
Different amount of court fees is paid for different type of documents.

Some of them are as follows;
In case of plaint/written statement == 10 RS. == if the value of the suit exceed Rs.5,000/- upto 10,000/-
Plaint , in a suit for possession == Fee of one half of the amount above.
On a copy of a Decree or order == ( 50 paise ) == if the amount or value of Having the force of a decree the subject matter of the suit wherein such decree or order is made is fifty or less than fifty rupees.
Vvalue of Suit

Value of suit exceeds Rs. 1,50,000-1,55,000 == Rs. 1700/-
Value of suit exceeds Rs. 3,00,000-3,05,000 == Rs. 2450/-
Value of suit exceeds Rs. 4,00,000-4,05,000 == Rs. 2950/-
Finally, a date shall be given to the plaintiff, for first hearing. On such hearing, the court will decide whether the proceedings should continue or not. If it decides, that the case no merits, then it will dismiss it there itself, without calling opposite party. If it decides otherwise, then proceedings shall being

How Proceedings Are Conducted
On the first day of hearing, if the court thinks there are merits in the case, it will issue notice to the opposite party, to submit their arguments, and fix a date.
On issuance of notice to the opposite party, the plaintiff is required to do the following:
File requisite amount of procedure— fee in the court.
File 2 copies of plaint for each defendant in the court, i.e. if there are 3 defendants, 6 copies has to be filed.
Of, the 2 copies for each defendant, one shall be sent by Register/post/courier, and one by Ordinary post.
Such filing should be done within 7 days, from date of order/notice.
Written Statement
When the notice has been issued to the defendant, he is required to appear on the date mentioned in the notice.
Before such date, the defendant is required to file his “written statement”, i.e. his defense against the allegation raised by plaintiff, within 30 days from date of service of notice, or within such time as given by court
The written statement should specifically deny the allegations, which defendant thinks are false. Any allegation not specifically denied is deemed to be admitted.
The written statement should also contain verification from the Defendant, stating that, the contents of written statement are true and correct.
The time period of 30 days, for filing a Written Statement, can be extended to 90 days after seeking permission of the court.
Replication By Plaintiff
“Replication” is a reply, filed by the plaintiff, against the “written statement” of Defendant.
“Replication” should also specifically deny the allegations raised by the Defendant in written statement. Anything not denied is deemed to be accepted.
Replication should also contain, a ” verification” from the plaintiff, stating that contents of “Replication” are true and correct.
Once Replication is filed, pleadings are stated to be complete.
Filing of Other Documents
Once, the pleadings are complete, then both the parties are given opportunity to produce and file documents, on which they rely, and to substantiate their claims.
Any document not filed or produced cannot be relied upon, during final arguments.
Filing of Documents is not sufficient. They should be admitted and taken on record. In brief the procedure is as follows:
Documents filed by one party may be admitted by opposite party.
If they are denied by opposite party, then they can be admitted by the witness produced by party whose documents are denied.
Once the document has been admitted it shall form a part of the record of court, and all the details of suit such as name of parties, title of suit etc, shall be inscribed on the document. (O13 R49 7)
Documents, which are rejected i.e. not admitted, are returned to the respective parties.
It is necessary that document should be filed in “original”, and a spare copy should be given to the opposite party.
Framing of Issues/List of Witness
“ISSUES” are framed by the court, on the basis of which arguments and examination of witness takes place.
Issues are framed, keeping in view the disputes in the suit, and the parties are not allowed to go outside the purview of “Issues”.
Issues may be of: A) Fact or B) Law
While passing final order, the court will deal with each issue separately, and pass judgement on each issue.
LIST OF WITNESS
Whichever witness, the parties wish to produce, and to be examined, has to be produced before the court.
Both the parties to the suit shall file a list of witness within 15 days from the date on which issues were framed or within such other period as the court may prescribe.
The parties may either call the witness on it’s own, or ask the court to send summons to them.
In case court send summons to witness then the party calling for such witness has to deposit money ‘ with the Court for their expenses, known as “Diet Money”.
A person, who does not appear before the court, if he is required by the court to do so, then the court may impose fine and penalty on him.
Finally on the date, the witness will be examined by both the parties.
Examination by party of it’s own witness is called “Examination-in-chief”
Examination by party of other party’s witness is called “cross Examination”.
Whatever, has to be deposed in ” Examination-in-chief”, can also be filed by way of an Affidavit.
Once, the Examination and Cross- Examination of witness is over, and also the admission and denial of documents, then the court will fix a date for final hearing.
Final Hearing
On the day fixed for final hearing, the arguments shall take place.
The arguments should strictly be confined to the issues framed.
Before the final Arguments, the parties with the permission of Court, can amend their pleadings.
Whatever is not contained in the pleadings, the court may refuse to listen.
Finally, the court shall pass a “final Order”, either on the day of hearing itself, or some other day fixed by the court.
CERTIFIED COPY OF ORDER
Certified copy of order, mean, the final order of court, and having the seal and stamp of court.
Certified copy of useful, in case of execution of the order, or in case of Appeal.
Certified copy can be applied by making an application to the Registry of concerned Court, alongwith nominal fees for the order.
In case of “urgent requirement some additional amount has to be deposited.
“Urgent order” can be obtained within a week, and the normal might take 15 days.
Appeal, Reference and Review
When an order is passed against a party to the suit, it is not that it has no further remedy.

Such party can further initiate the proceedings, by way of:
Appeal,
Reference, or
Review.
In brief, the technicalities and difference between these are as follows:

APPEAL
APPEAL FROM ORIGINAL DECREES
(Sec.96)- In general, an appeal lies from any decree passed by the court.
(Sec 96)
In cases, where the value of suit does not exceed Rs.10, 000 An appeal can be filed only on a question of law.

(Sec.96) When a decree has been passed against the Defendant as “Ex-Parte”, i.e. without his appearance, no appeal is allowed
(Sec.96) When an appeal is headed by two or more judges, then the
majority decision shall prevail.
In case there is no majority, then the decree of lower court
shall be confirmed.
In case, the number of judges in the court, where appeal is filed is more, than the number of judges hearing the appeal, then if there is a dispute on a point of law, such dispute can be referred to one or more judges.

PROCEDURE FOR APPEAL FROM ORIGINAL DECREES ( ORDER 41)
The appeal shall be filed in the form prescribed, singed by the appellant, alongwith a true certified copy of the order.
The appeal shall contain the grounds of objection under distinct heads, and such grounds shall be numbered consecutively.
If the appeal is against a decree for payment of money, the court may require the appellant to deposit the disputed amount or furnish any other security.
A ground/objection which has not been mentioned in the appeal, cannot be taken up for arguments, without the permission of court.
Similarly any point of act which was not taken up y the Appellant, in lower court, cannot be taken up in appeal lies only against only those points which have been decided by the court rightly or wrongly.
Limitation
For every appeal, there is a limited period, within which appeal should be filed. Such a limitation is provided under the Limitation Act, 1963.
For appeal, in case of a decree passed by lower court in civil suit, the limitation is:
Appeal to High Court- 90 days from the date of decree or order.
Appeal to any other court- 30 days from the date of Decree or order.
In case there are more than one plaintiffs or defendants, then any one of them can file on appeal against all of them respectively.
Merely because an appeal is filed, does not mean that the order or decree of lower court is stayed. In case of temporary stay of decree or order, it has to be specifically asked, and stay will operate only if court grants it.
In case of execution of decree, the court, which passed the decree, can itself stay the execution for time being on sufficient reasons shown.
The court may require the appellant to deposit some sort of security.
The appellate court may, on the day fixed for hearing the appellant dismiss the appeal, or issue notice to the opposite party to appear on next day.
If on the first day of hearing, appellate court issues summons to the opposite party, then:
It shall fix a date for next hearing, and such date shall be published in the court house.
Notice shall also be sent to the lower court, whose decree or order has been appealed.
To appellant is required to file ” Process Fee ” which is very nominal in amount, and on such filing, the notice shall also be sent to opposite party.
In case of appeal, the one who files the appeal is known as appellant, and against whom it is filed, is known as “Respondent”.

What is criminal law?

Criminal law or penal law is the body of law that relates to crime. It regulates social conduct and proscribes whatever is threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people. It includes the punishment of people who violate these laws.

What is a bailable offence?

In the case of bailable offences, it is binding upon the investigating officer to grant bail.

What is a non-bailable offence?

In case of a non-bailable offence the police do not grant bail. The decision is taken by a Judicial Magistrate/Judge only.

What is a charge sheet? Is there a time frame for a charge sheet to be framed?

When a Police officer gives a Police report under section 173 Cr.P.C. recommending prosecution, it is called a charge sheet. After questioning the accused and hearing the arguments, the magistrate frames charges on the accused for which he is tried.

What is environmental law?

Environmental law is a collective term describing the network of treaties, statutes,regulations, and common and customary laws addressing the effects of human activity on the natural environment.

Is pollution of load/soil covered under E.P.A ?

Yes. Because under the E.P.A Environment includes water, air and land.

The sources of land pollution are :

  • The unintended or incidental pollution of soil with man made chemicals.
  • The spent material from mining, or processing, etc.
  • The discharge of sewage or waste water from urban areas on the land used for agricultural purposes, particularly that adjoining urban areas.
  • The indiscriminate disposal of solid waste (refuse).

 

What are the requirements that are to be fulfilled under the E.P.A. by persons carrying on any industry, operation etc.?

According to Section 7, no person carrying on any industry, operation or process shall discharge or emit or permit to be discharged or emitted any environmental pollutants in excess of such standards as may be prescribed.

 

What are the penalties for violation under the E.P.A.?

  1. Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued thereunder, shall, in respect of each such failure or contravention, be punishable with imprisonment for a team which may extend to five years or with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.
  2. If the failure or contravention referred to in sub-section(1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years.

 

What is labour law?

Indian labour law refer to laws regulating labour in India. Traditionally Indian governments at federal and state level have sought to ensure a high degree of protection for workers, but in practice, legislative rights only cover a minority of workers. India is a federal form of government and because labour is a subject in the concurrent list of the Indian Constitution, labour matters are in the jurisdiction of both central and state governments. Both central and state governments have enacted laws on labour relations and employment issues.

What is property law?

Property law is the area of law that governs the various forms of ownership and tenancy in real property (land as distinct from personal or movable possessions) and in personal property, within the common law legal system.

Who can purchase immovable property in India ?

The following categories can purchase immovable property in India:

  • Non-Resident Indian (NRI)
  • Person of Indian Origin (PIO)

 

Can NRI/PIO acquire agricultural land/ plantation property / farm house in India?

No, because the general permission, however, covers only purchase of residential and commercial property and is not available for purchase of agricultural land / plantation property / farm house in India.

How many residential / commercial properties can NRI / PIO purchase under the general permission?

There are no any limit on the number of residential / commercial properties that can be purchased by NRI/PIO.

Can a foreign national of non-Indian origin be a second holder to immovable property purchased by NRI / PIO?

No, It is not possible to become second holder to immovable property purchased by NRI / PIO.

Can a foreign national of non-Indian origin resident outside India purchase immovable property in India?

A foreign national of non-Indian origin, resident outside India cannot purchase any immovable property in India.

What is international trade law?

International Trade Law includes the appropriate rules and customs for handling trade between countries. However, it is also used in legal writings as trade between private sectors, which is not right.

What is Dumping?

In international trade, the export by a country or company of a product at a price that is lower in the foreign market than the price charged in the domestic market. As dumping usually involves substantial export volumes of the product, it often has the effect of endangering the financial viability of manufacturers or producers of the product in the importing nation. Dumping is also a colloquial term that refers to the act of offloading a stock with little regard for its price.

What is a Countervailable Subsidy?

Foreign governments subsidize industries when they provide financial assistance to benefit the production, manufacture, or exportation of goods.

The relevant product types to include in the scope of an anti-subsidy investigation are those considered to be subsidized from a countervailable subsidy.

A countervailing duty shall be imposed in the appropriate amounts in each case, on a non-discriminatory basis, on imports of a product from all sources found to benefit from countervailable subsidies and causing injury, except as to imports from those sources from which undertakings under the terms of this Regulation have been accepted.

What is anticipatory bail?

Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested.

What is cognizable offence?

Cognizable offence means a police officer has the authority to make an arrest without a warrant. The police is also allowed to start an investigation with or without the permission of a court.

What is non-cognizable offence?

In the case of a noncognisable offence, a police officer does not have the authority to make an arrest without a warrant and an investigation cannot be initiated without a court order.

What is The Code of Criminal Procedure, 1973 (Cr.P.C.)?

An Act to consolidate and amend the law relating to Criminal Procedure. The Code of Criminal Procedure (Cr. P.C.) is the main legislation on procedure for administration of substantive criminal law in India. It was enacted in 1973 and came into force on 1 April 1974.

What are Industrial Disputes?

Industrial Dispute means any dispute or differences between employers and employers or between employers and workmen or between workmen and workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person.

What are the different categories of Industrial Disputes?

The Second Schedule of the I.D. Act deals with matters within the jurisdiction of Labour Courts which fall under the category of Rights Disputes.  Such disputes are as follows:

  1. The propriety or legality of an order passed by an employer under the standing orders;
  2. The application and interpretation of standing orders which regulate conditions of employment.
  3. Discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen wrongfully dismissed;
  4. Withdrawal of any customary concession or privilege;
  5. Illegality or otherwise of a strike or lock-out; and
  6. .All matters other than those specified in the Third Schedule.

 

The Third Schedule of the I.D. Act deals with matters within the jurisdiction of Industrial Tribunals which could be classified as Interest Disputes.  These are as follows:-

  1. Wages, including the period and mode of payment;
  2. Compensatory and other allowances;
  3. Hours of work and rest intervals;
  4. Leave with wages and holidays;
  5. Bonus, profit sharing, provident fund and gratuity;
  6. Shift working otherwise than in accordance with standing orders;
  7. Classification by grades;
  8. Rules of discipline;
  9. Rationalization;
  10. Retrenchment of workmen and closure of establishment; and
  11. Any other matter that may be prescribed.

Who can raise an Industrial Dispute?

Any person who is a workman employed in an industry can raise an industrial dispute.  A workman includes any person (including an apprentice) employed in an industry to do manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward.  It excludes those employed in the Army, Navy, Air Force and in the police service, in managerial or administrative capacity.  Industry means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen.

What is Information?

Information is any material in any form. It includes records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form. It also includes information relating to any private body which can be accessed by the public authority under any law for the time being in force.

What is a Public Authority?

A “public authority” is any authority or body or institution of self government established or constituted by or under the Constitution; or by any other law made by the Parliament or a State Legislature; or by notification issued or order made by the Central Government or a State Government. The bodies owned, controlled or substantially financed by the Central Government or a State Government and non-Government organisations substantially financed by the Central Government or a State Government also fall within the definition of public authority. The financing of the body or the NGO by the Government may be direct or indirect.

What is a Public Information Officer?

Public authorities have designated some of its officers as Public Information Officer. They are responsible to give information to a person who seeks information under the RTI Act.

What is an Assistant Public Information Officer?

These are the officers at sub-divisional level to whom a person can give his RTI application or appeal. These officers send the application or appeal to the Public Information Officer of the public authority or the concerned appellate authority. An Assistant Public Information Officer is not responsible to supply the information. The Assistant Public Information Officers appointed by the Department of Posts in various post offices are working as Assistant Public 2 Information Officers for all the public authorities under the Government of India.

What is the Fee for Seeking Information from Central Government Public Authorities?

A person who desires to seek some information from a Central Government Public Authority is required to send, along with the application, a demand draft or a banker’s cheque or an Indian Postal Order of Rs.10/- (Rupees ten), payable to the Accounts Officer of the public authority as fee prescribed for seeking information. The payment of fee can also be made by way of cash to the Accounts Officer of the public authority or to the Assistant Public Information Officer against proper receipt. However, the RTI Fee and the mode of payment may vary as under Section 27 and Section 28, of the RTI Act, 2005 the appropriate Government and the competent authority, respectively, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

To which Public Authority can I file a request through this portal?

An applicant who desires to obtain information under the RTI Act, 2005 can make a request through this RTI Online Portal to the Central Ministries/Departments and other Central Public Authorities mentioned in ONLINE RTI request form.

How do I write my application for seeking the information as per RTI Act 2005?

The text of the application may be written in the prescribed column of the RTI request form. At present, the text of the application is confined up to 3000 characters only.
In case, the text of an application contains more than 3000 characters, it can be uploaded as a PDF attachment in the “Supporting Document” column of the form.

How do I make the payment for RTI fee?

After filling the first page of the RTI request form, a non-BPL applicant has to click on “Make Payment” button for payment of the prescribed RTI fee.
The applicant can pay the prescribed RTI fee through the following modes:
(i) Internet banking through SBI and its associated banks.
(ii) Using ATM-cum-Debit card of State Bank of India.
(iii) Credit/Debit card of Master/Visa.
It may be noted that no RTI fee is required to be paid by a citizen who is below poverty line, as per RTI Rules, 2012. However, the BPL applicant must attach a copy of the certificate issued by the appropriate government in this regard, along with the application.

Do I get any receipt for online filing of RTI application?

On submission of an application, a unique registration number will be issued, which may be referred by the applicant for any future reference.
It may be noted that the application filed through this RTI Online Portal will reach electronically to the “Nodal Officer” of the said Ministry/Department and “Not” to the CPIO of the concerned Ministry/Department.
The Nodal Officer will transmit the RTI application electronically to the concerned CPIO.

What will happen to my application if I select a wrong Public Authority in the RTI request form?

In case the RTI application is not meant for the Public authority which has been selected by the applicant, the “Nodal Officer” of the said public authority would transfer the application electronically to the “Nodal Officer” of the concerned Central Public authority, if aligned to this portal and physically to that Central Public authority which is not aligned to this portal, under section 6(3) of the RTI Act.
It may be noted that RTI applications filed through this portal for the state public authorities, including NCT of Delhi, would be returned, without any refund of fee.

Will I be informed about the additional fee (if any) is required to pay?

In case additional fee representing the cost is required for providing information, the CPIO will intimate the same, which can be viewed by the applicant through “View Status” option in the RTI Online Portal and an e-mail alert or SMS or both will also be sent to the applicant for the same.
For payment of additional fee online, the applicant needs to use the option ‘View Status’ in the RTI Online Portal and on providing the registration number of the request, option for “Make Payment” will be available.

How do I file an appeal with First Appellate Authority?

For making an appeal to the first Appellate Authority, the applicant has to select the option “Submit First Appeal” in the RTI Online Portal and fill up the form that will appear.
The registration number and e-mail ID of the original application is required for filing the first appeal.

Do I need to make any payment for filing an appeal?

As per RTI Act, no fee has to be paid for first appeal.

Do I get any SMS from RTI Online Portal?

Though optional, the mobile number can be provided by the applicant/ appellant in order to receive SMS alerts.

What should I do when my browser show certificate error while opening RTI online portal?

You should ignore the certificate error and proceed forward. Kindly select,
Mozilla Firefox – I understand the risk add exception.
Google Chrome – Proceed Anyway.
Internet Explorer – Continue to this website

Is it mandatory to create user account on RTI online web portal?

No. You can directly file your RTI on “Submit Request” tab.

What should I do if I forgot my password for the user account?

Use the “Forget Password” utility to regenerate new password. It may be noted that new password would be sent at your registered email ID.

What should I do if my password is not working?

You may call the RTI helpdesk or send an e-mail at helprtionline-dopt[at]nic[dot]in, requesting to reset your password.

Can I file RTI application for state public authorities through this portal?

No. You can not file RTI application for state public authorities through this portal?

What should I do when RTI online portal asks for activation key on first login?

An Activation Key will be sent on your email ID provided during registration. This Activation Key can be used to activate the account on first login.
Provision for re-generation of Activation key is also available after first login or before activation of the user account. The new activation key will be sent on your registered email-id.

What should I do if amount is deducted from my account but registration number is not generated?

Kindly wait for the 48 hours as registration number will be generated after reconciliation. If it is not generated within 48 hours kindly send an e-mail at helprtionline-dopt[at]nic[dot]in with your transaction details.

What should I do when portal is not allowing me to file the first appeal?

That can be case where your RTI application has been physically transferred to other public authority, which is not aligned to this portal. In that case, you should file your appeal in physical mode to concerned public authority.
Another case can be if your RTI application is not replied by CPIO and 30 days have not lapsed. In that case, you can file first appeal only after completion of stipulated time period of 30 days.

While registering a user account many dots appear after entering password?

Please do not get confused due to that. Password encryption is a security measure. Whenever you enter your password it gets encrypted instantaneously.
While registering your account kindly provide same password in two fields i.e. password & confirm password fields respectively.

Can I file online first appeal for any RTI application filed physically in the first place ?

No,Online first appeal can only be filed against previously filed online RTI application.

Why RTI application filed by me is not displaying in my user account?

There are two ways of filing RTI request:-
1. Registered user: after creating a user account and filing RTI request after logging in, such RTI application will appear in the user account.
2. Non Registered user: user can file RTI application directly without creating user account, the RTI filed in this case will not reflect in the user account,

Why I have received multiple RTI registration numbers, even though I have filed single RTI application ?

This is the case where in your RTI application has been forwarded to multiple CPIOs since the information sought lies with more than one PIO.

What are the labour enactments available for the benefit of employees under the Central Sphere (enforced by the organization of CLC (C)?

 

  • The Contract Labour (Regulation and Abolition) Act, 1970.
  • The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996.
  • Inter-state Migrant Workmen (Regulation of employment of and conditions of Service) Act, 1979.
  • Payment of Wages Act, 1936.
  • The Minimum Wages Act, 1948.
  • The Equal Remuneration Act, 1976.
  • The Payment of Gratuity Act, 1972.
  • The Payment of Bonus Act, 1965.
  • The Industrial Disputes Act, 1947.
  • Hours of Employment Regulation for Railway Servants, 2005.
  • The Child Labour (Prohibition and Regulation) Act, 1986.
  • The Maternity Benefit Act, 1961.
  • The Industrial Employment (Standing Orders) Act, 1946.
  • Labour Laws (Exemption from Furnishing Return & Maintaining Register by Certain Establishments) Act, 1988.

 

 

What is the minimum no. of workmen for whom labour license is required to be obtained?

The minimum no. of workmen for whom labour license is 20.

What is the License fee to be remitted along with the application for Licence?

 

For 20 Contract Workmen – Rs. 15,

For 21 or more Workmen but less than 50 – Rs. 37.50,

For 51 or more Workmen but less than 100 – Rs. 75,

For 101 or more Workmen but less than 200 – Rs. 150,

For 201 or more Workmen but less than 400 – Rs. 300,

For 401 and above – Rs. 375.00.

 

What is the security deposit to be remitted alongwith the application for Licence?

 

  • Rs. 90/- per Workmen,
  • If Contractor is a co-operative Society – 15/- per Workmen.

 

What is the mode of Payment of License fee-security deposit?

Through Demand Draft.

What is civil law?

The system of law concerned with private relations between members of a community rather than criminal, military, or religious affairs.

A body of law derived and evolved directly from Roman Law, the primary feature of which is that laws are struck in writing; codified, and not determined, as in the common law, by the opinions of judges based on historic customs.

What are the important Environmental Laws in the country?

  • Water (Prevention and Control of Pollution) Act, 1974;
  • Air (Prevention and Control of Pollution) Act, 1981,
  • Cess Act, 1977, – Environment (Protection) Act, 1986 and Rules there under
  • Public Liability Insurance Act, 1981,
  • National Environmental Tribunal Act, 1995
  • National Environment Appellate Authority Act, 1997

 

What are the important Environmental Laws in the country?

What are the different programes/activities implemented through State Pollution Control Board?

State Boards are implementing following programmes –
  • Pollution control in 17 categories of highly polluting industries
  • Pollution control from industries discharging waste water into rivers and lakes
  • Inventorization of pollution industries in the State and ensuring their compliance to the Pollution control norms
  • Restoration of environmental quality in critically polluted areas
  • Monitoring of water and ambient air quality in the States
  • Hazardous waste
  • Bio-medical and Management of Municipal Solid Wastes

What steps have been taken to control vehicular pollution?

Major initiatives taken to control vehicular pollution include the following –

  • Emission Standards for Tractors : Emission norms for tractors were notified on 8.9.1999 under the Central Motor Vehicle Rules is effective from 1.10.1999.
  • India 2000 Emission Norms akin to Euro-I Norms: Emission norms known as India 2000 akin to Euro I norms was notified on 28.8.1997 under the Central Motor Vehicle Rules is effective from 1.4.2000 for the entire country, required major modifications in the engine designs

What are sources of water pollution and wastewater generation scenario?

It is estimated that 75% to 80% of water pollution by volume is caused by domestic sewage. The major industries causing water pollution include: distilleries, sugar, textile, electroplating, pesticides, pharmaceuticals, pulp & paper mills, tanneries, dyes and dye intermediates, petro-chemicals, steel plants etc.

Non-point sources such as fertilizer and pesticide run-offs in rural areas also cause pollution. Only 60% of chemical fertilizers are utilized in soils and the balance is leached into soil polluting the ground water. Excess phosphate run-off leads to eutrophication in lakes and water bodies.

How many critically polluted areas have been identified?

The Central Pollution Control Board in consultation with State Pollution Control Boards has identified 24 areas in the country as critically polluted areas. These are:

Bhadravati (Karnataka), Chembur (Maharashtra), Digboi (Assam), Govindgarh (Punjab), Greater Cochin (Kerala), Kala-Amb (Himachal Pradesh), Parwanoo (Himachal Pradesh), Korba (Madhya Pradesh), Manali (Tamil Nadu), North Arcot (Tamil Nadu), Pali (Rajasthan), Talcher (Orissa), Vapi (Gujarat), Visakhapatnam (Andhra Pradesh), Dhanbad (Bihar), Durgapur (West Bengal), Howrah (West Bengal), Jodhpur (Rajasthan), Nagda- Ratlam (Madhya Pradesh), Najafgarh Drain (Delhi), Patancheru Bollaram (Andhra Pradesh), Singrauli (Uttar Pradesh), Ankleshwar (Gujarat), Tarapur (Maharashtra)

How many critically polluted areas have been identified?

Yes Sir, India has prepared pollution abatement strategy which include the legal framework and the Environment Authorities.
Environment Authorities :
In addition to Pollution Control Boards, 6 Environmental Authorities have been constituted under the Environment (Protection) Act 1986, including the National Environment Appellate Authority. These are :

  • The Central Ground Water Authority – Aqua Culture Authority
  • Dahanu Taluka Environment (Protection) Authority
  • Environment Pollution (Prevention & Control) Authority for National Capital Region of Delhi
  • Loss of Ecology (Prevention and Payment of Compensation) Authority for State of Tamil Nadu.
  • National Environment Appellate Authority,1997

 

Is there any legal and institutional framework to check pollution in the country?

What are the measures for control of noise pollution?

Ambient standards in respect of noise for different categories of areas (residential, commercial, industrial) and silence zones have been notified under the Environment (Protection) Act, 1986.

Noise limits have been prescribed for automobiles, domestic appliances and construction equipment at the manufacturing stage. Standards have been evolved and notified for the gen sets, fire crackers and coal mines. Regulatory agencies have been directed to enforce the standards for control and regulate noise pollution.

 

( Source – PTI )

What are the steps taken to control vehicular pollution?

The following steps are taken: –

  • Establishment of Ambient Air Quality Monitoring throughout India
  • Notification of Ambient Air Quality Standards under Environment (Protection) Act.
  • Notification of vehicular emission norms for year 1990-91,1996, 1998, 2000, 2001
  • Improving fuel quality by phasing out lead from gasoline, reducing diesel sulphur, reducing gasoline benzene, and etc.
  • Introduction of alternate fuelled vehicles like CNG/LPG.
  • Improvement of public transport system.
  • Phasing out of grossly polluting commercial vehicles.
  • Public awareness & campaigns.

 

What are the steps taken to control vehicular pollution?

What is the impact of the steps to Ambient Air Quality?

Impacts of the steps taken in Delhi: All regulatory pollutants show a decreasing trend in concentrations in Delhi. CO decreased to 3069 ug/m3 in 2000-2001 from 5450 ug/m3 in 1998. NO2 decreased from 75 ug/m3 in 1996 to 59 ug/m3 in 2000.

Lead which is harmful especially for children, decreased remarkably due to phasing out of lead from gasoline. Another critical pollutant RSPM also shows a decreasing trend in Delhi.

What steps have been taken to control noise pollution due to fire crackers?

The Govt. of India has enacted noise standards for fire-crackers vide G.S.R.682(E), dated 5th October, 1999, in an effort to control noise pollution due to fire crackers Recently in March 2001, Central Pollution Control Board in association with National Physical Laboratory (NPL), Delhi initiated a study on measurement of noise levels of fire-crackers available in the market. The study indicates that 95% of the fire-crackers samples exceed the prescribed noise limits.

Consequently, CPCB issued notice under Section 5, of the Environment (Protection) Act, 1986 to the Department of Explosives, Nagpur, to take immediate steps to control manufacturing of fire-crackers exceeding the prescribed limits. All the State Pollution Control Boards/Committees were also requested to initiate steps to control sale of fire-crackers exceeding the notified limits, in consultation with their respective local administrations.

What steps have been taken to control noise pollution due to loud-speakers?

The Govt. of India has enacted Noise Pollution (Regulation and Control) Rules, 2000 vide S.O.123(E), dated 14th February, 2000. The Rule deals with provisions to control noise pollution due to loud-speakers and public address system, as given below :
Restriction on the use of loud speakers/utility address system :

  • A loud speaker or a public address system shall not be used except after obtaining written permission from the authority.
  • A loud speaker or a public address system shall not be used at night (between 10.00 p.m. to 6.00 p.m.) except in closed premises for communication within e.g. auditoria, conference rooms, community halls and banquet halls.

 

What steps have been taken to control noise pollution due to loud-speakers?

What steps have been taken to control noise pollution in the country?

  • Ambient noise standards were notified in 1989, which formed the basis for State Pollution Control Boards to initiate action against violating sources.
  • The vehicular noise standards, notified in 1990, are being implemented by Ministry of Science and Technology, to reduce traffic noise. These standards have been made more stringent vide a notification in September 2000 and will be effective from January, 2003.
  • Noise standards for diesel genset were prescribed in Dec. 1998. Govt. has been pursuing with State Pollution Control Boards, generator manufacturing and major users, for implementation of these standards. Presently these standards are being revised (the MoEF is in the process of issuing notification) making it mandatory for all generator manufacturers to provide acoustic enclosure at the manufacturing stage itself. This will have a major impact on noise from DG sets.
  • Noise standards for fire-crackers were developed in October, 1999. Central Pollution Control Board had carried out a compliance testing of the fire crackers available in the market and also taken up with the Department of Explosives for compliance with these standards.
  • Noise standards for petrol and kerosene generator sets were notified in September, 2000, and will be effective from September, 2002. The sale of these gensets will be prohibited if not certified by the testing agencies, identified for the purpose.
  • The Noise Rules, 2000, regulates noise due to Public Address System/ Loud speakers and also prescribed procedures for noise complaint handling.
  • Central Pollution Control Board has taken up a study on aircraft noise monitoring in Indira Gandhi International Airport, Delhi. This will be followed by development of guidelines/ standards for aircraft noise.

 

What steps have been taken to control noise pollution in the country?

What are the laws enforced by of the Pollution Control Boards ?

The Central and State Pollution Control Boards were set up for enforcement of the Water (Prevention & Control of Pollution) Act, 1974. Over the years, the Boards have been assigned additional responsibilities which include the following :

  • Water (Prevention & Control of Pollution) Cess Act, 1977.
  • Air (Prevention & Control of Pollution) Act, 1981
  • Environment (Protection) Act, 1986 and Rules made thereunder
  • Hazardous Waste (Management & Handling) Rules1989.
  • Manufacture, storage and Import of Hazardous Chemicals Rules, 1989
  • Bio-medical Waste (Management & Handling) Rules, 1998
  • Municipal Solid Waste (Management & Handling) Rules, 2000.
  • Plastics wastes Rules, 1999 o Coastal Regulation Zone Rules, 1991
  • Public Liability Insurance Act, 1991

What are the specific functions of the Pollution Control Boards?

Functions of Central Pollution Control Board : – 

  • Advise the Central Government on matters relating to pollution;
  • Coordinate the activities of the State Boards;
  • Provide Technical assistance to the State Boards, carry out and sponsor investigations and research relating to control of pollution;
  • Plan and organize training of personnel;
  • Collect, compile and publish technical and statistical data, prepare manuals and code of conduct.
  • To lay down standards;
  • To plan nation wide programme for pollution control.

 

Functions of the State Pollution Control Boards: –

  • To advise the State Government on matter relating to pollution and on siting of industries
  • To plan programme for pollution control;
  • To collect and disseminate information;
  • To carry our inspection;
  • To lay down effluent and emission standards;
  • To issue consent to industries and other activities for compliance of prescribed emission and effluent standards,

What are the specific functions of the Pollution Control Boards?

What would be the shape of post 2020 Arrangements for Climate Change?

The legal shape of post 2020 arrangements cannot be pre-judged. The arrangement may include a variety of options including aspirational CoP decisions, binding CoP decisions, setting up of institutions and bodies covering various aspects of Bali Action Plan and Cancun Agreements with differing degrees of bindingness under the provisions of domestic and international law under the UNFCCC.

India’s Climate Change stand seen as being not positive?

India’s stand on climate change is guided by the consideration of the equity and CBDR which cannot be neglected in any arrangement. The issue is that of burden sharing. There can be no shifting of the burden of mitigation actions in the name of climate change. India’s position is that all climate actions should be taken on the basis of equity along with CBDR.

What is environment impact assessment?

Environment Impact Assessment (EIA) is a planning tool to integrate the environmental concerns into developmental process right at the initial stage of planning and suggest necessary mitigation measures. EIA essentially refers to the assessment of environmental impacts likely to arise from a project.

What are the stages of environmental clearance?

The environmental clearance process comprises of four stages, namely, Stage (1) Screening; Stage (2) Scoping; Stage (3) Public Consultation and Stage (4) Appraisal.

What is Administrative law?

Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law.

How many returns are to be submitted by Employer in – (i) Small Establishment (ii) Very Small Establishment

In both Establishments, a Core Return in ‘Form A’ is required to be submitted.

How many Registers are required to be maintained in– (i) Small Establishment (ii) Very Small Establishment

 

The Registers required to be maintained by both Establishments are as under –

 

(i)     Small Establishment –      Form D and Form E Registers.

 

(ii)      Very Small Establishment –      Form B Form C and Form D Registers.

 

Who is covered under labour laws Act, 1988

 

This Act applied to –

 

(i)      Small Establishment –   The Establishment in which not less than 10 and not more than 19 persons are employed or were employed on any day in preceding 12 months.

 

(ii)      Very Small Establishment –      The Establishment in which not more than 09 are employed or were employed on any day in preceding 12 months.

 

Who is the Certifying Officer?

Regional Labour Commissioner (Central) is the certifying officer.

What is the time limit for submission of a draft Standing Orders under this Act?

Within six months from the date on which this Act becomes applicable to an Industrial Establishment.

In whose favour demand draft is to be obtained?

The demand draft shall be drawn in the name of Assistant Labour Commissioner (Central) / Regional Labour Commissioner (Central), being the licensing and registering officer. DDO, O/o Dy. CLC(C) concerned.

What are the documents to be attached along with the application for license?

 

Form IV,

Copy of Work Order,

Proof of Status of Contractors firm,

Form V,

Demand Draft.

 

What is the validity period of license?

One year from the date of issuance.

When the application for renewal of a License is to be submitted?

Thirty days before the date of expiry of license.

What is the renewal fee for the license to be attached?

 

For 20 Contract Worker – Rs. 15,

For 21 or more Workmen but less than 50 – Rs. 37.50,

For 51 or more Workmen but less than 100 – Rs. 75,

For 101 or more Workmen but less than 200 – Rs. 150,

For 201 or more Workmen but less than 400 – Rs. 300,

For 401 and above – Rs. 375.

 

What are the notices/ abstract to be displayed at the work-spot?

 

Abstract of Act and rules,

Notice showing rates of wages,

Date of payment of wages,

Date of payment of unpaid wages,

Hours of work,

Wage period,

Names and address of the inspectors,

Copy of license.

 

When the wages to contract workmen should be paid?

 

Before the expiry of 7th day of the last day of wage period where number of workmen is less than 1000.

Before the expiry of 10th day of the last day of wage period where number of workmen is 1000 or above.

 

What are the welfare amenities to be provided to workmen under the act?

 

Canteen (if 100 or more Contract Labour were/are working),

Rest Room (if Contract Labour  are halting at night),

Drinking Water,

Toilets/ Urinal/ Wash Room,

First Aid Facility.

 

What should be done to increase the number of workmen in a license during the period of operation of license?

Original License should be returned along with application for amendment, additional security deposit and additional license fee.

What is the procedure for the issuance of a duplicate license?

Fee of Rs. 5/- to be remitted along with a request.

What is an employment card?

Employment card specifies the particulars of contract workmen engaged by the contractor. The Contractor has to issue employment card duly filled in to the worker within 3 days of the employment.

Whether a workmen are eligible for wages during the Rest day/Weekly off?

Yes, a workmen are eligible for wages during the Rest day/Weekly off.

 

I am having 18 Contract labourers, whether my establishment will be covered under the Contract Labour (R&A) Act, 1970?

No

What is a Wage Slip?

Under the Act, every contractor is liable to give a wage slip-specifying wages rates and other particulars along with the payment.

Earlier I employed 22 Labourers, now I have reduced to 18 workmen, whether my establishment has to continue with the Labour license or surrender?

Yes, your establishment will continue to be covered under the provisions of the Act for a period of one year from the day on which day 20 or more workmen lastly employed.

Is a sub contractor supposed to take License?

If principal employer endorses the name of sub contractor in the agreement, after having Form V from principal employer, a sub contractor is requested to take License.

For past few months my telephone bills are highly inflated. I feel somebody is misusing my line. Can I file an FIR?

Yes, Any person can file an FIR of theft under Section 379.

One of my clients during the transactions gave me a 500 Rupee note, which later turned out to be fake. What should I do?

Immediately contact the Local Police Station and lodge complaint against the person from whom you have received the note.

What is Indian Penal Code?

The Indian Penal Code (IPC) is the main criminal code of India. It is a comprehensive code intended to cover all substantive aspects of criminal law. The code was drafted in 1860 on the recommendations of first law commission of India established in 1834 under the Government of India Act 1833 under the Chairmanship of Thomas Babington Macaulay.[1][2][3] It came into force in British India during the early British Raj period in 1862.

What is section 309 of the Indian Penal Code?

The Section 309 of the Indian Penal Code deals with an unsuccessful attempt to suicide. Attempting to commit suicide and doing any act towards the commission of the offence is punishable with imprisonment up to one year or with fine or with both.

Considering long-standing demand and recommendations of the Law Commission of India, which has repeatedly endorsed the repeal of this section, the Government of India in December 2014 decided to decriminalise attempt to commit suicide by dropping Section 309 of IPC from the statute book.

What is section 497?

The Section 497 of the IPC has been criticised on the one hand for allegedly treating woman as the private property of her husband, and on the other hand for giving women complete protection against punishment for adultery.

What is code of criminal procedure 1973?

The Code of Criminal Procedure 1973 is the main legislation on procedure for administration of substantive criminal law in India. It was enacted in 1973 and came into force on 1 April 1974. It provides the machinery for the investigation of crime, apprehension of suspected criminals, collection of evidence, determination of guilt or innocence of the accused person and the determination of punishment of the guilty. Additionally, it also deals with public nuisance, prevention of offences and maintenance of wife, child and parents.

What is section 377?

Whoever, voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment of life, or with imprisonment of either description for a term which may extend to ten Years, and shall also be liable to fine.

Differences between Cognizable and Non-cognizable Offences?

Cognizable offences are those offences for which a police officer may arrest without court mandated warrant in accordance with the first schedule of the code.

For non-cognizable cases the police officer may arrest only after being duly authorized by a warrant. Non-cognizable offences are, generally, relatively less serious offences than cognizable ones.

What is summons-case?

Under Section 204 of the code, a Magistrate taking cognizance of an offence is to issue summons for the attendance of the accused if the case is a summons case. Section 2(w) of the Code defines summons-case as, a case relating to an Offence, and not being a warrant-case.

What is warrant-case?

If the case appears to be a warrant case, he may issue a warrant or summons, as he sees fit. Section 2(x) of the Code defines warrant-case as, a case relating to an Offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

What is the functionaries under the Code?

  1. Magistrates and judges of the Supreme Court and High Court
  2. Police
  3. Public prosecutors
  4. Defence Counsels
  5. Correctional services personnel

Which type of sentances may pass by the chief judicial magistrate?

The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years.

Which type of sentances may pass by the Judicial Magistrate of First Class?

The Courts of Judicial Magistrate of First Class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding ten thousand rupees (sub by act 25 of 2005 for rupees five thousand), or of both.

Which type of sentances may pass by the Judicial Magistrate of Second Class?

The Courts of Judicial Magistrate of Second Class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding five thousand rupees(sub by act 25 of 2005 for rupees one thousand), or of both.

Which type of sentances may pass by the Chief Metropolitan Magistrate?

The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Courts of Judicial Magistrate of First Class. So he may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years and hje also may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding ten thousand rupees (sub by act 25 of 2005 for rupees five thousand), or of both

What is Judgement?

Judgement is the final reasoned decision of the Court as to the guilt or innocence of the accused. Where the accused is found guilty, the judgement must also contain an order requiring the accused to undergo punishment or treatment.

 

What is judgements in abridged form ?

According to Section 355 of the Code, a Metropolitan Magistrate may deliver judgements in abridged form and should contain:

  1. Serial number of the case
  2. Date of commission of the offence
  3. Name of the complainant (if any)
  4. Name of the accused person, his parentage and residence
  5. Offence complained of (or proved, as the case may be)
  6. Plea of the accused and his examination (if any)
  7. Final order
  8. Date of the order
  9. In cases where appeal lies from the final order, a brief statement of reasons for the decision.

What is section to give compensation for the victim?

The functions of a civil court may be performed by a criminal court by virtue of Section 357, 358 and 359. This has been done to provide just, speedy and less expensive redress to the victim. The court is empowered to levy a fine from the offender. Such fine may, wholly or in part, be used for the purpose of compensating the victim as per the amendment of 2009. A new section 357A has been inserted which talks of victim compensation scheme. Further in the year 2013 two new sections namely section 357B and section 357C were inserted to make compensation to the victim (as defined under section 2(wa)) in addition to fine imposed under section 364A or 376D of the IPC as well as treatment of victim respectively.

What is the appeal in terms of law?

The Code and the Constitution of India together provide for multiple ranges of appellate remedy. A person convicted by the High Court exercising original criminal jurisdiction may appeal before the Supreme Court. Where the High Court has, on appeal reversed an order of acquittal and sentenced him to death and imprisonment for a term of ten years or more, the accused may appeal to the Supreme Court. The Constitution provides that an appeal shall lie to the Supreme Court against the direction of Supreme Court if the High Court certifies that the case involves substantial questions of law as to the interpretation of the Constitution.

Judgements and orders arising from petty cases are not appealable unless the sentences are combined with other sentences. There can not be an appeal when the accused pleads guilty and is convicted on such plea by the High Court. If the conviction from a plea of guilt is by a Sessions Court, Metropolitan Magistrate or a Magistrate of First or Second Class, only the legality of the sentence may be brought into question in an appeal

What is section 302 in The Indian Penal Code?

Central Government Act Section 302 in The Indian Penal Code 302 is used to punishment for murder.

What is Plea- Bargaining?

A plea bargain (also plea agreement, plea deal, copping a plea, or plea in mitigation) is any agreement in a criminal case between the prosecutor and defendant whereby the defendant agrees to plead guilty to a particular charge in return for some concession from the prosecutor.

What is section 306?

Section 306 is related to abetment of suicide. If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

What is section 420?

Section 420 of the Indian Penal Code covers offences relating to cheating and dishonestly inducing delivery of property, and leads to punishments of fines and/or jail terms of up to 7 years.

What is section 406?

Section 406 Punishment for criminal breach of trust. Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both

What is section 498A?

Section 498A is related to dowry harassment and domestic violence.

What is IPC 34?

IPC 64 – When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

What is section 304?

Section 304 – Whoever commits culpable homicide not amounting to murder shall be punished with 1(imprisonment for life), or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

What is section 316?

Section 316 – Causing death of quick unborn child by act amounting to culpable homicide.—Whoever does any act under such circum­stances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Illustration A, knowing that he is likely to cause the death of a pregnant woman, does an act which, if it caused the death of the woman, would amount to culpable homicide.

The woman is injured, but does not die; but the death of an unborn quick child with which she is pregnant is thereby caused. A is guilty of the offence defined in this section. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.

What is section 311?

Section 311 – Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case.

What is section 312?

Section 312 – Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprison­ment of either description for a term which may extend to seven years, and shall also be liable to fine. Explanation.—A woman who causes herself to miscarry, is within the meaning of this section.

What is indian company law?

Indian company law regulates the corporations formed under the Companies Act 2013.

What is companies Act 2013?

Companies Act 2013 is an Act of the Parliament of India which regulates incorporation of a company, responsibilities of a company, directors, dissolution of a company.

By which section company director may be remove?

Under CA 2013 section 169, the basic rule is that any company director may be removed by the general meeting with a simple majority vote.

In companies which elect the board by proportional representation according to section 163, there is an exception so that directors appointed by one particular group of members cannot be ousted by the majority. Those directors can only be removed by the members that appointed them, so as to protect the system of proportional voting.

How many days are required for notice period to remove the company director?

28 days.

What is section 163 in company laws?

using section 163, company director may be removed by one particular group of members cannot be ousted by the majority. Those directors can only be removed by the members that appointed them, so as to protect the system of proportional voting.

What are the social responsibilities of corporate?

In a new with the Companies Act 2013, section 135 requires companies to spend 2% of their net profit on socially responsible projects, if they have a net worth of over rupees 500 crore, or a turnover of over rupees 1,000 crore, or a net profit over rupees 5 crore. Socially responsible projects are defined in Schedule VIII, and mainly involve community development.

What is NCLT in company laws?

NCLT stands for National Company Law Tribunal.

What is National Company Law Tribunal?

National Company Law Tribunal (NCLT) is a proposed quasi-judicial body in India that will govern the companies in India. It will be established under the Companies Act, 2013 and is a successor body of the Company Law Board.

The principal bench of NCLT is expected to be established in New Delhi. NCLT will have the same powers as assigned to the erstwhile Company Law Board (which are mostly related to dealing with oppression and mismanagement), Board for Industrial and Financial Reconstruction (BIFR)(revival of sick companies) and powers related to winding up of companies (which was available only with the High Courts).

By which Act National Company Law Tribunal will be established?

National Company Law Tribunal will be established under the Companies Act, 2013.

What is Directors’ duties in company laws?

Directors’ owe a range of duties to the company, which primarily involve acting within the constitution, avoiding conflicts of interest and performing their role to a desired standard of competence.

The Companies Act 2013 section 166 lists directors’ duties in seven simple sections, which reflect the existing principles developed by the case law in the courts around most Commonwealth countries, in common law and equity.

Part of the reason for codification of directors’ duties was to provide a transparent statement of the duties directors owe, and therefore to publicise principles of best practice. However, because of their generality, the case of law of the courts matters to interpret how duties will apply in specific situations.

Can a company have two Managing Directors?

Can a company have two Managing Directors?

Can a company have two Managing Directors?

No, As per third proviso to section 203 of the COMPANIES ACT, 2013.

“managing director” means a director who, by virtue of an agreement with the company or of a resolution passed by the company in general meeting or by its Board of directors or, by virtue of its memorandum or articles of association, is entrusted with substantial powers of management which would not otherwise be exercisable by him, and includes a director occupying the position of a managing director.

Sub-section (24) of the Section 2 of the Companies Act, 1956 reads as follows:

“ “manager” means an individual (not being the managing agent”) who, subject to the superintendence, control and direction of the Board of directors, has the management of the whole, or substantially the whole, of the affairs of a company, and includes a director or any other person occupying the position of a manager, by whatever name called, and whether under a contract of service or not;”

Whether provisions related to the Managerial Remuneration are applicable on all KMPs?

Whether provisions related to the Managerial Remuneration are applicable on all KMPs?

The provisions related to the managerial remuneration are not applicable on all KMPs but they are applicable only on such managerial personnel as mentioned in Section 197 and Schedule V to the COMPANIES ACT, 2013.

Companies Act, 2013 (Act) has introduced many NEW CONCEPTS AND KEY MANAGERIAL PERSONNEL is one of them. While the Companies Act, 1956 recognised only Managing Director, Whole Time Director and Manager as the Managerial Personnel, the Companies Act, 2013 has brought in the concept of Key Managerial Personnel which not only covers the traditional roles of managing director and whole time director but also includes some functional figure heads like Chief Financial Officer and Chief Executive Officer etc. These inclusions are in line with the global trends.

Key management personnel are employees who have the authority to directly or indirectly plan and control business operations. The term key management personnel is a relative term dealing with specific operations.

Can the KMP of Holding Co. be appointed in only one subsidiary or in all subsidiaries of holding company at the same time?

Can the KMP of Holding Co. be appointed in only one subsidiary or in all subsidiaries of holding company at the same time?

Can the KMP of Holding Co. be appointed in only one subsidiary or in all subsidiaries of holding company at the same time?

No, as per section 203(3) of the Companies Act, 2013,a Whole-time KMP of a company shall not hold office in more than one company except in its subsidiary company.

Companies Act, 2013 (Act) has introduced many NEW CONCEPTS AND KEY MANAGERIAL PERSONNEL is one of them. While the Companies Act, 1956 recognised only Managing Director, Whole Time Director and Manager as the Managerial Personnel, the Companies Act, 2013 has brought in the concept of Key Managerial Personnel which not only covers the traditional roles of managing director and whole time director but also includes some functional figure heads like Chief Financial Officer and Chief Executive Officer etc. These inclusions are in line with the global trends.

Key management personnel are employees who have the authority to directly or indirectly plan and control business operations. The term key management personnel is a relative term dealing with specific operations.

Is it mandatory to file the return of appointment of KMPs appointed in terms of Section 203?

Is it mandatory to file the return of appointment of KMPs appointed in terms of Section 203?

Is it mandatory to file the return of appointment of KMPs appointed in terms of Section 203?

Yes, according to Form no. MR.1 as prescribed in Rule 3 of the Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014. It is mandatory for a company to file a return of appointment of a managing director, whole time director or manager, chief executive officer, company secretary and Chief Financial officer in Form no. MR.1 as prescribed in Rule 3 of the Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014. Further, particulars of appointment of KMP and any change among them are also required to be filed in Form DIR-12.

Companies Act, 2013 (Act) has introduced many NEW CONCEPTS AND KEY MANAGERIAL PERSONNEL is one of them. While the Companies Act, 1956 recognised only Managing Director, Whole Time Director and Manager as the Managerial Personnel, the Companies Act, 2013 has brought in the concept of Key Managerial Personnel which not only covers the traditional roles of managing director and whole time director but also includes some functional figure heads like Chief Financial Officer and Chief Executive Officer etc. These inclusions are in line with the global trends.

Is it compulsory for Company Secretary to attend the All Board, Committee and General Meeting?

Is it compulsory for Company Secretary to attend the All Board, Committee and General Meeting?

Is it compulsory for Company Secretary to attend the All Board, Committee and General Meeting?

A Company Secretary is a senior position in a private sector company or public sector organisation, normally in the form of a managerial position or above. A  company secretary is typically named a Corporate Secretary or Secretary.

The Company Secretary is responsible for the efficient administration of a company, particularly with regard to ensuring compliance with statutory and regulatory requirements and for ensuring that decisions of the Board of Directors are implemented.

Yes because it is the one of the duties of the company secretary as mentioned in section 205 of the Companies Act, 2013. All Board, Committee and General Meetings as mentioned in section 205 of the Companies Act, 2013 read with Rule 10 of the Companies (Appointment and Remuneration of Managerial
Personnel) Rules, 2014.

The company secretary is responsible for the efficient administration of a company, particularly with regard to ensuring compliance with statutory and regulatory requirements and for ensuring that decisions of the board of directors are implemented.

 

If a Company has granted stock options prior to the promulgation of the Companies Act, 2013, then whether such stock options can be exercisable by the Independent Directors?

If a Company has granted stock options prior to the promulgation of the Companies Act, 2013, then whether such stock options can be exercisable by the Independent Directors?

If a Company has granted stock options prior to the promulgation of the Companies Act, 2013, then whether such stock options can be exercisable by the Independent Directors?

They can exercise the stock options prior to the commencement of the Companies Act, 2013; however, they shall not be entitled to have any stock option after the commencement of Companies Act, 2013.

If a Company has granted stock options prior to the promulgation of the Companies Act, 2013, then whether such stock options can be exercisable by the Independent Directors?

As per section 197(7), section 62(1)(b) and Rule 12 of the Companies (Share Capital and Debentures) Rule, 2014, an Independent Director has been disentitled to any stock option but the Independent Directors have not been prohibited to exercise the stock options which were granted to them before Companies Act, 2013. Therefore, they can exercise the stock options granted to them prior to the commencement of the Companies Act, 2013; however, they shall not be entitled to
have any stock option after the commencement of Companies Act, 2013.

After filling form for Disclosure of interest of Directors, if any changes have been made, whether disclosure from Directors is required again?

After filling form for Disclosure of interest of Directors, if any changes have been made, whether disclosure from Directors is required again?

After filling form for Disclosure of interest of Directors, if any changes have been made, whether disclosure from Directors is required again?

According section 184, if any change in the disclosures which is already made then at first Board Meeting held after such change, shall be disclosed.

After filling form for Disclosure of interest of Directors, if any changes have been made, whether disclosure from Directors is required again?

Let me informed that As per section 184, whenever any change occurs in the interest of Directors, disclosure of the same is required to be made at the first Board Meeting held after such change.

Company to have Board of Directors

(1) Every company shall have a Board of Directors consisting of individuals as directors and shall have—

(a) a minimum number of three directors in the case of a public company, two directors in the case of a private company, and one director in the case of a One Person Company; and

(b) a maximum of fifteen directors:

Provided that a company may appoint more than fifteen directors after passing a special resolution:

Provided further that such class or classes of companies as may be prescribed, shall have at least one woman director.

(2) Every company existing on or before the date of commencement of this Act shall within one year from such commencement comply with the requirements of the provisions of sub-section (1).

(3) Every company shall have at least one director who has stayed in India for a total period of not less than one hundred and eighty-two days in the previous calendar year.

(4) Every listed public company shall have at least one-third of the total number of directors as independent directors and the Central Government may prescribe the minimum number of independent directors in case of any class or classes of public companies.

Whether the directors appointed by entities which have the interest in the Company in the nature of Equity, shall be treated as nominee directors?

Whether the directors appointed by entities which have the interest in the Company in the nature of Equity, shall be treated as nominee directors?

Whether the directors appointed by entities which have the interest in the Company in the nature of Equity, shall be treated as nominee directors?

According to section 149(7), the directors appointed by any private equity investor may be treated as nominee directors.

Explanation to Section 149(7) defines, “nominee director” means a director nominated by any financial institution in pursuance of the provisions of any law for the time being in force, or of any agreement, or appointed by any Government, or any other person to represent its interests. Nominee Director shall not be deemed to be independent director as per Section 149(6).

These institutions/banks etc. also insist on borrowing companies to alter their articles of association so as to empower them to appoint and terminate the services of their nominee directors on the Board of the company as and when they like. These directors are known as nominee directors. They are not liable to retire by rotation and hold office at the pleasure of their nominating agencies. They cannot be removed by the company.

What is “Nominee Directors” according to section 149(7)?

What is "Nominee Directors" according to section 149(7)?

What is “Nominee Directors” according to section 149(7)?

According to section 149(7) “nominee director” means a director –

  1. nominated by any financial institution in pursuance of the provisions of any law for the time being in force; or of any agreement;
  2. appointed by any Government; or
  3. any other person to represent its interests.

Explanation to Section 149(7) defines, “nominee director” means a director nominated by any financial institution in pursuance of the provisions of any law for the time being in force, or of any agreement, or appointed by any Government, or any other person to represent its interests. Nominee Director shall not be deemed to be independent director as per Section 149(6).

These institutions/banks etc. also insist on borrowing companies to alter their articles of association so as to empower them to appoint and terminate the services of their nominee directors on the Board of the company as and when they like. These directors are known as nominee directors. They are not liable to retire by rotation and hold office at the pleasure of their nominating agencies. They cannot be removed by the company.

Can an Independent Director of a Company be appointed as Independent Director of its holding, subsidiary or associate company?

Can an Independent Director of a Company be appointed as Independent Director of its holding, subsidiary or associate company?

Can an Independent Director of a Company be appointed as Independent Director of its holding, subsidiary or associate company?

Yes, as per clause 49 III. (i) of the listing agreement. An Independent Director of a Company can be appointed as Independent Director of its Associate/sister concern. Also, as per clause 49 III. (i) of the listing agreement,  at least one independent director on the Board of Directors of the holding company shall be a director on the Board of Directors of a material non  listed Indian  subsidiary company.

Company to have Board of Directors

(1) Every company shall have a Board of Directors consisting of individuals as directors and shall have—

(a) a minimum number of three directors in the case of a public company, two directors in the case of a private company, and one director in the case of a One Person Company

(b) a maximum of fifteen directors:

Provided that a company may appoint more than fifteen directors after passing a special resolution:

Provided further that such class or classes of companies as may be prescribed, shall have at least one woman director.

(2) Every company existing on or before the date of commencement of this Act shall within one year from such commencement comply with the requirements of the provisions of sub-section (1).

(3) Every company shall have at least one director who has stayed in India for a total period of not less than one hundred and eighty-two days in the previous calendar year.

(4) Every listed public company shall have at least one-third of the total number of directors as independent directors and the Central Government may prescribe the minimum number of independent directors in case of any class or classes of public companies.

What is the time limit within which the Board has to appoint an Independent Director?

Within one year from the commencement of Companies Act, 2013 or rules made in this behalf, as may be applicable. Further, Schedule IV to the Companies Act, 2013, inter alia provides that, the appointment of the Independent Director shall be approved by the Company in its meeting of shareholders.

What is the time limit within which the Board has to appoint an Independent Director?

What is the time limit within which the Board has to appoint an Independent Director?

Company to have Board of Directors

(1) Every company shall have a Board of Directors consisting of individuals as directors and shall have—

(a) a minimum number of three directors in the case of a public company, two directors in the case of a private company, and one director in the case of a One Person

Company; and

(b) a maximum of fifteen directors:

Provided that a company may appoint more than fifteen directors after passing a special resolution:

Provided further that such class or classes of companies as may be prescribed, shall have at least one woman director.

(2) Every company existing on or before the date of commencement of this Act shall within one year from such commencement comply with the requirements of the provisions of sub-section (1).

(3) Every company shall have at least one director who has stayed in India for a total period of not less than one hundred and eighty-two days in the previous calendar year.

(4) Every listed public company shall have at least one-third of the total number of directors as independent directors and the Central Government may prescribe the minimum number of independent directors in case of any class or classes of public companies.

 

In case the appointment of an auditor is not ratified by the shareholders at annual general meeting as required under proviso to Section 139(1), what recourse does the company have?

In case the appointment of an auditor is not ratified by the shareholders at annual general meeting as required under proviso to Section 139(1), what recourse does the company have?

In case the appointment of an auditor is not ratified by the shareholders at annual general meeting as required under proviso to Section 139(1), what recourse does the company have?

According to Rule 3(7) of the Companies (Audit and Auditors) Rule 2014 explains that in case the appointment is not ratified by the members of the company, the Board of Directors shall appoint another individual or firm as its auditor or auds after following the procedure laid down in this behalf under the Act.

Therefore, if a company satisfies the criterion of turnover although it does not satisfy the criterion of net profit, it will have to comply with the provisions of Section 135 and the Companies (CSR Policy) Rules, 2014.

Auditor – An auditor is a person or a firm appointed by a company to execute an audit. To act as an auditor, a person should be certified by the regulatory authority of accounting and auditing or possess certain specified qualifications.

Generally, to act as an external auditor of the company, a person should have a certificate of practice from the regulatory authority.

Types of Auditor – 1. External Auditor  2. Internal Auditor

 

In case the company has appointed personnel exclusively for implementing the CSR activities of the company, can the expenditure incurred towards such personnel in terms of staff cost etc. be included in the expenditure earmarked for CSR activities?

In General Circular No. 21/2014 dated 18th June, 2014, The Ministry of Corporate Affairs clarifies that Salaries paid by the companies to regular CSR staff. In case of proportion can be factored into CSR project cost as part of the CSR expenditure.

In case the company has appointed personnel exclusively for implementing the CSR activities of the company, can the expenditure incurred towards such personnel in terms of staff cost etc. be included in the expenditure earmarked for CSR activities?

In case the company has appointed personnel exclusively for implementing the CSR activities of the company, can the expenditure incurred towards such personnel in terms of staff cost etc. be included in the expenditure earmarked for CSR activities?

The word ‘Company‘ is an amalgamation of the Latin word ‘Com’ meaning “with or together” and ‘Pains’ meaning “bread”. Originally, it referred to a group of persons who took their meals together. A company is nothing but a group of persons who have come together or who have contributed money for some common person and who have incorporated themselves into a distinct legal entity in the form of a company for that purpose.

Under Halsbury’s Laws of England, the term “company” has been defined as a collection of many individuals united into one body under special domination, having perpetual succession under an artificial form and vested by the policies of law with the capacity of acting in several respect as an individual, particularly for taking and granting of property, for contracting obligation and for suing and being sued, for enjoying privileges and immunities in common and exercising a variety of political rights, more or less extensive, according to the design of its institution or the powers upon it, either at the time of its creation or at any subsequent period of its existence.

However, the Supreme Court of India has held in the case of State Trading Corporation of India v/s CTO that a company cannot have the status of a citizen under the Constitution of India.

In case of companies having multi-locational operations, which local area of operations should the company choose for spending the amount earmarked for CSR operations?

According to section 135(5) of the Companies Act 2013 provides that a company shall give preference to the local area and the areas around it where it operates for spending the amount earmarked for CSR activities.

But, In case of multi-locational operations, the company could exercise discretion in choosing the area for which it wants to give preference.

In case of companies having multi-locational operations, which local area of operations should the company choose for spending the amount earmarked for CSR operations?

In case of companies having multi-locational operations, which local area of operations should the company choose for spending the amount earmarked for CSR operations?

Company – The word ‘Company‘ is an amalgamation of the Latin word ‘Com’ meaning “with or together” and ‘Pains’ meaning “bread”. Originally, it referred to a group of persons who took their meals together. A company is nothing but a group of persons who have come together or who have contributed money for some common person and who have incorporated themselves into a distinct legal entity in the form of a company for that purpose.

Under Halsbury’s Laws of England, the term “company” has been defined as a collection of many individuals united into one body under special domination, having perpetual succession under an artificial form and vested by the policies of law with the capacity of acting in several respect as an individual, particularly for taking and granting of property, for contracting obligation and for suing and being sued, for enjoying privileges and immunities in common and exercising a variety of political rights, more or less extensive, according to the design of its institution or the powers upon it, either at the time of its creation or at any subsequent period of its existence.

However, the Supreme Court of India has held in the case of State Trading Corporation of India v/s CTO that a company cannot have the status of a citizen under the Constitution of India.

What are the consequences for non-compliance of CSR provisions?

What are the consequences for non-compliance of CSR provisions?

What are the consequences for non-compliance of CSR provisions?

In case of any non compliance, the Companies Act, 2013 imposes an obligation on the board to the company at Annual General Meeting (AGM). Though there is no specific provision is provided for non compliance for spending on CSR under the Companies Act 2013 Section 450 is an overarching provision for punishing a company or its officers in case of where there is no specific punishment provided for an offence in the act.

It says, “If a company or any officer of a company or any other person contravenes any of the provisions of this Act or the rules made there under, for which no penalty or punishment is provided elsewhere in this Act, the company and every officer of the company who is in default shall be punishable with fine which may extend to ten thousand rupees, and where the contravention is continuing one with a further fine which may extend to one thousand rupees for every day after the first during which the contravention continues.”

However one of the official from Corporate Ministry said, “The new law, which came into effect on April 1, 2014, says if a company isn’t able to give a satisfactory explanation about not spending on CSR activities, the corporate affairs ministry, at most, can question the roles and responsibility of its directors, but can’t act beyond that. “The quantum of penalty in case of non-compliance hasn’t been worked out,” According to the Economic Times survey, round 14,000 companies are expected to spend about Rs 15,000 crore on various social projects under the mandatory CSR spending.

Whether the provisions of CSR are applicable to section 8 companies?

Since section 8 companies are supposed to apply their profits in promoting the objects such as commerce, art, science, sports, education etc.

There is no specific exemption given to section 8 companies with regard to applicability of section 135, hence section 8 companies are required to follow CSR provisions.

Corporate Social Responsibility is covered under section 135 of the Companies Act, 2013.

It categorically states that Every Company having –
(i) Net worth of rupees five hundred crore or more, or
(ii) Turnover of rupees one thousand crore or more, or
(iii) Net profit of rupees five crore or more

Whether the provisions of CSR are applicable to section 8 companies?

Whether the provisions of CSR are applicable to section 8 companies?

During any Financial year or more shall constitute a Corporate Social Responsibility Committee.
The Committee shall consist of three or more directors, out of which at least one director shall be an independent director.

According to Rule 3 of the Companies (Corporate Social Responsibility Policy) Rules, 2014, Every company including its holding or subsidiary and a foreign company having its branch office or project office in India and if it fulfills the threshold limits specified above shall comply with the provisions of Sec 135 of the Companies Act, 2013.

Sec 135 applies to Private Companies and Unlisted Public Companies also. In case such companies fulfill the criteria mentioned in Sec 135 but is not required to appoint an independent director as stated in sub-section (4) of Sec 149, it shall constitute a CSR Committee without an independent director.

As regards Sec 8 companies, there is no specific exemption mentioned in the Act or in any circulars as regards their applicability to Sec 135 of the Act. Therefore, Sec 8 companies are also required to follow the CSR provisions if they meet any of the criteria mentioned in Sec 135 of the Companies Act, 2013

There are certain corporate groups who run hospitals and educational institutions, will this be considered as CSR?

Here are two conditions –

  1. If the hospitals and educational institutions are part of the business activity of the company they would not be considered as CSR activity.
  2. if some charity is done by these hospitals or educational institutions, without any statutory obligation to do so, then it can be considered as CSR activity.

There are certain corporate groups who run hospitals and educational institutions, will this be considered as CSR?

 

If the hospitals and educational institutions are part of the business activity of the company they would not be considered as CSR activity. However, if some charity is done by these hospitals or educational institutions, without any statutory obligation to do so, then it can be considered as CSR activity.

There are certain corporate groups who run hospitals and educational institutions, will this be considered as CSR?

There are certain corporate groups who run hospitals and educational institutions, will this be considered as CSR?

Company – The word ‘Company’ is an amalgamation of the Latin word ‘Com’ meaning “with or together” and ‘Pains’ meaning “bread”. Originally, it referred to a group of persons who took their meals together. A company is nothing but a group of persons who have come together or who have contributed money for some common person and who have incorporated themselves into a distinct legal entity in the form of a company for that purpose.

Under Halsbury’s Laws of England, the term “company” has been defined as a collection of many individuals united into one body under special domination, having perpetual succession under an artificial form and vested by the policies of law with the capacity of acting in several respect as an individual, particularly for taking and granting of property, for contracting obligation and for suing and being sued, for enjoying privileges and immunities in common and exercising a variety of political rights, more or less extensive, according to the design of its institution or the powers upon it, either at the time of its creation or at any subsequent period of its existence.

However, the Supreme Court of India has held in the case of State Trading Corporation of India v/s CTO that a company cannot have the status of a citizen under the Constitution of India.

 

 

Whether the activity a company is required to do as per statutory obligation under any law, would be termed as CSR activity?

Whether the activity a company is required to do as per statutory obligation under any law, would be termed as CSR activity?

Whether the activity a company is required to do as per statutory obligation under any law, would be termed as CSR activity?

No, the activity undertaken in pursuance of any law would not be considered as CSR activity. In this regard, please refer to the Ministry of Corporate Affairs Circular No. 21/2014 dated June 18, 2014 where it is clarified that expenses incurred by companies for the fulfilment of any Act/ Statute of regulations (such as Labour Laws, Land Acquisition Act etc.) would not count as CSR expenditure under the Companies Act, 2013.

The word ‘Company‘ is an amalgamation of the Latin word ‘Com’ meaning “with or together” and ‘Pains’ meaning “bread”. Originally, it referred to a group of persons who took their meals together. A company is nothing but a group of persons who have come together or who have contributed money for some common person and who have incorporated themselves into a distinct legal entity in the form of a company for that purpose.

Under Halsbury’s Laws of England, the term “company” has been defined as a collection of many individuals united into one body under special domination, having perpetual succession under an artificial form and vested by the policies of law with the capacity of acting in several respect as an individual, particularly for taking and granting of property, for contracting obligation and for suing and being sued, for enjoying privileges and immunities in common and exercising a variety of political rights, more or less extensive, according to the design of its institution or the powers upon it, either at the time of its creation or at any subsequent period of its existence.

However, the Supreme Court of India has held in the case of State Trading Corporation of India v/s CTO that a company cannot have the status of a citizen under the Constitution of India.

What are the provisions with respect to signing of financial statements under the Companies Act, 2013?

According to section 134(1), in the case of a One Person Company the Financial Statement is required to be signed only by one director. Otherwise, Financial Statement is required to be signed by –

  • The chairperson of the company (where he is authorised by the Board or by two directors out of which one shall be managing director)
  • The Chief Executive Officer, if he is a director in the company
  • The Chief Financial Officer
  • The company secretary of the company.
What are the provisions with respect to signing of financial statements under the Companies Act, 2013?

What are the provisions with respect to signing of financial statements under the Companies Act, 2013?

The word ‘Company‘ is an amalgamation of the Latin word ‘Com’ meaning “with or together” and ‘Pains’ meaning “bread”. Originally, it referred to a group of persons who took their meals together. A company is nothing but a group of persons who have come together or who have contributed money for some common person and who have incorporated themselves into a distinct legal entity in the form of a company for that purpose.

Under Halsbury’s Laws of England, the term “company” has been defined as a collection of many individuals united into one body under special domination, having perpetual succession under an artificial form and vested by the policies of law with the capacity of acting in several respect as an individual, particularly for taking and granting of property, for contracting obligation and for suing and being sued, for enjoying privileges and immunities in common and exercising a variety of political rights, more or less extensive, according to the design of its institution or the powers upon it, either at the time of its creation or at any subsequent period of its existence.

However, the Supreme Court of India has held in the case of State Trading Corporation of India v/s CTO that a company cannot have the status of a citizen under the Constitution of India.

Is it mandatory for a company to keep its documents records, registers and minutes in electronic form?

Yes, it is mandatory for a company to keep its documents records, registers and minutes in electronic form.

Is it mandatory for a company to keep its documents records, registers and minutes in electronic form?

Is it mandatory for a company to keep its documents records, registers and minutes in electronic form?

The word ‘Company‘ is an amalgamation of the Latin word ‘Com’ meaning “with or together” and ‘Pains’ meaning “bread”. Originally, it referred to a group of persons who took their meals together. A company is nothing but a group of persons who have come together or who have contributed money for some common person and who have incorporated themselves into a distinct legal entity in the form of a company for that purpose.

Under Halsbury’s Laws of England, the term “company” has been defined as a collection of many individuals united into one body under special domination, having perpetual succession under an artificial form and vested by the policies of law with the capacity of acting in several respect as an individual, particularly for taking and granting of property, for contracting obligation and for suing and being sued, for enjoying privileges and immunities in common and exercising a variety of political rights, more or less extensive, according to the design of its institution or the powers upon it, either at the time of its creation or at any subsequent period of its existence.

However, the Supreme Court of India has held in the case of State Trading Corporation of India v/s CTO that a company cannot have the status of a citizen under the Constitution of India.

How do I lodge FIR?

  • First go to the police station of the area, where the offence is committed.
  • Contact to the officer, who is in charge.
  • If information is given on telephone, the informant should subsequently go to the police station for registration of F.I.R.
  • Received a copy of FIR free of cost.
How do I lodge FIR?

How do I lodge FIR?

FIR – A First Information Report (FIR) is a written document prepared by police organizations in Bangladesh, India, and Pakistan when they receive about the commission of a cognizable offence.
Importance of FIR – 

An FIR is a very important document as it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police takes up investigation of the case.

Who can lodge an FIR?

Anyone who knows about the commission of a cognizable offence can file an FIR. It is not necessary that only the victim of the crime should file an FIR. A police officer who comes to know about a cognizable offence can file an FIR himself/herself. You can file an FIR if:

  1. You are the person against whom the offence has been committed;
  2. You know yourself about an offence which has been committed;
  3. You have seen the offence being committed.

Who can lodge an F.I.R ?

Anyone who knows about the commission of a cognizable offence can file an FIR. It is not necessary that only the victim of the crime should file an FIR. A police officer who comes to know about a cognizable offence can file an FIR himself/herself.

Who can lodge an F.I.R ?

Who can lodge an F.I.R ?

You can file an FIR if:

  1. You are the person against whom the offence has been committed;
  2. You know yourself about an offence which has been committed;
  3. You have seen the offence being committed.

FIR – A First Information Report (FIR) is a written document prepared by police organizations in Bangladesh, India, and Pakistan when they receive about the commission of a cognizable offence.
Importance of FIR – An FIR is a very important document as it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police takes up investigation of the case.

What is an objective of an F.I.R

There are two major objectives of an FIR –

  • First is to obtain early information of an alleged criminal activity.
  • Second objective is to make a complaint to the police to set the criminal law in motion.
What is an objective of an F.I.R

What is an objective of an F.I.R

FIR – A First Information Report (FIR) is a written document prepared by police organizations in Bangladesh, India, and Pakistan when they receive about the commission of a cognizable offence.
Importance of FIR – 

An FIR is a very important document as it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police takes up investigation of the case.

Who can lodge an FIR?

Anyone who knows about the commission of a cognizable offence can file an FIR. It is not necessary that only the victim of the crime should file an FIR. A police officer who comes to know about a cognizable offence can file an FIR himself/herself. You can file an FIR if:

  1. You are the person against whom the offence has been committed;
  2. You know yourself about an offence which has been committed;
  3. You have seen the offence being committed.

What if we delay in lodging F.I.R.

If the longer delay in the FIR, it means the FIR is suspicious. That the case is false wholly or in material particulars, so the delay should satisfactorily be explained.

law

What if we delay in lodging F.I.R.

FIR – A First Information Report (FIR) is a written document prepared by police organizations in Bangladesh, India, and Pakistan when they receive about the commission of a cognizable offence.
Importance of FIR – 

An FIR is a very important document as it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police takes up investigation of the case.

Who can lodge an FIR?

Anyone who knows about the commission of a cognizable offence can file an FIR. It is not necessary that only the victim of the crime should file an FIR. A police officer who comes to know about a cognizable offence can file an FIR himself/herself. You can file an FIR if:

  1. You are the person against whom the offence has been committed;
  2. You know yourself about an offence which has been committed;
  3. You have seen the offence being committed.

What could be possible reasons of Delay in F.I.R.?

The major possible reasons of delay in FIR may be –

  • Physical & Psychological condition of the informer.
  • Ignorance of law of informer
  • Late detection of commission of crime
  • Due to threat, promise and undlue influence.
  • Economic, social and undue influence.
  • Dispute over the jurisdiction of Police Station
  • Shortage of staff in the police station.

 

What could be possible reasons of Delay in F.I.R.?

What could be possible reasons of Delay in F.I.R.?

FIR – A First Information Report (FIR) is a written document prepared by police organizations in Bangladesh, India, and Pakistan when they receive about the commission of a cognizable offence.
Importance of FIR – 

An FIR is a very important document as it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police takes up investigation of the case.

Who can lodge an FIR?

Anyone who knows about the commission of a cognizable offence can file an FIR. It is not necessary that only the victim of the crime should file an FIR. A police officer who comes to know about a cognizable offence can file an FIR himself/herself. You can file an FIR if:

  1. You are the person against whom the offence has been committed;
  2. You know yourself about an offence which has been committed;
  3. You have seen the offence being committed.

What happens if FIR in corruption case?

In cases of FIR related to corruption is enquiry is required into the allegation. Such preliminary enquiries are relevant before the registration of case and are permissible under law.

But as soon as it became clear to enquiring officer that the public servant appeared to be guilty of severe misconduct, it was his duty to lodge F.I.R. and proceed further in the investigation.

What happens if FIR in corruption case?

What happens if FIR in corruption case?

FIR – A First Information Report (FIR) is a written document prepared by police organizations in Bangladesh, India, and Pakistan when they receive about the commission of a cognizable offence.
Importance of FIR – 

An FIR is a very important document as it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police takes up investigation of the case.

Who can lodge an FIR?

Anyone who knows about the commission of a cognizable offence can file an FIR. It is not necessary that only the victim of the crime should file an FIR. A police officer who comes to know about a cognizable offence can file an FIR himself/herself. You can file an FIR if:

  1. You are the person against whom the offence has been committed;
  2. You know yourself about an offence which has been committed;
  3. You have seen the offence being committed.

What happens if FIR in murder case?

In murder case, it contains direct evidence of murder on the basis of ocular evidence. When the Police registers the case minimizing the offence from murder to 307 or u/s 364 IPC to avoid its despatch to magistrate which otherwise is essential if case is really registered for murder.

What happens if FIR in murder case?

What happens if FIR in murder case?

This is invariably in those cases in which the informer is not sure of the culprits and priliminary enquiry is required by Police to find out the facts and to show that the case was registered properly.
When a dead body identified or unidentified is recovered, with cause of death which is clear and the injuries are apparent the neck is cut etc. When only inquest is held to discover the cause of death and the case is registered after the report of Medical Officer, or after the receipt of report of chemical examiner etc with re- gard to poison given to the deceased. Only a report is recorded in Daily Diary at the first instance.

When the death is under suspicious circumstances and inves- tigation is necessary which otherwise cannot be done without the registration of case. This is mainly in cases where dead body is not available, but the circumstances indicate that cognizable offence has occurred.

 

What are the essentials of a F.I.R?

Essentials of a First Information Report are –

1.The capacity in which the report is being filed?

It is to be specified that the informant is filing the report in what capacity.

  • Whether the informant is himself a victim; or
  • He is an eye-witness and saw the offence being committed.
  • Or whether he heard about the incident from someone else.

(Information about a cognizable offence can be given by anyone who has knowledge of commission of such offence not necessarily being the eye witness.)

What are the essentials of a F.I.R?

What are the essentials of a F.I.R?

2.Who did it?

If a known person has committed the crime then his name, address and other particulars must be mentioned. If not then descriptive particulars of the offender must be penned down like the clothes he was wearing, any special identifiable mark etc.

3.The time of commission?

The time when the crime was committed must also be noted down. If delay occurred in lodging FIR then the reason accounting for such delay must also be recorded.

4.The place of commission?

The area/place where the offence was committed is a must for FIR. This helps in ascertaining the jurisdiction of the police station.

5.Against whom the crime was committed?

The informant should mention the victim of the crime. Since the informant may not necessarily be the victim, this information becomes crucial.

6.How did the offence take place?

A detailed description of the act committed by the offender must be recorded accurately so that it helps in further investigation. Also if any  arms/weapons/vehicles were used then their description is also called for.

The description of injury received (if any) by property and/or victim also form an essential part of FIR.

7. Things taken away by the accused?

If the accused has taken anything which doesn’t belong to him/her (as in case of theft etc.) then the complete description of property and identifiable particulars must be put down.

8. The details about Witness?

If the offence took place in presence of witness(s) then their name and address must be taken down. Also if the witness attempted to rescue the victim then every single act must be described.

9.Reason behind the commission?

If the motive behind the offence is known to the informant then it may be mentioned in the FIR.

10.Traces left behind by the offender?

If there is any object left behind by the offender then it must be recorded in the FIR. The object could be something like a slipper or a handkerchief etc.

What is description of Culprits in F.I.R?

In case of culprits in F.I.R., the recording officer should try to fix clearly the identity of accused.

What is description of Culprits in F.I.R?

What is description of Culprits in F.I.R?

FIR – A First Information Report (FIR) is a written document prepared by police organizations in Bangladesh, India, and Pakistan when they receive about the commission of a cognizable offence.
Importance of FIR – 

An FIR is a very important document as it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police takes up investigation of the case.

Who can lodge an FIR?

Anyone who knows about the commission of a cognizable offence can file an FIR. It is not necessary that only the victim of the crime should file an FIR. A police officer who comes to know about a cognizable offence can file an FIR himself/herself. You can file an FIR if:

  1. You are the person against whom the offence has been committed;
  2. You know yourself about an offence which has been committed;
  3. You have seen the offence being committed.

What is the evidentiary value of F.I.R?

Following are the evidentiary value of F.I.R –

  • It can not be ignored altogether and can be used to corroborate the statement of the eyewitnesses.
  • In case of contradicting the evidence of person giving the information.
  • Proving as an admission against the informer.
  • Refreshing informer’s memory.
  • Impeaching the credit of an informer.
  • Proving informer’s conduct.
  • Establishing identity of accused, witnesses & for fixing spot time.
What is the evidentiary value of F.I.R?

What is the evidentiary value of F.I.R?

In the case of FIR follow these steps –

  • FIR should be lodged immediately.
  • It should be recorded in first person.
  • Attitude/Behavious towards the vicitirn should be sympathetic.
  • Technical words should be avoided and as far as possible language of the inforrner/complainant should be used .
  • Written complaint should be taken.
  • But complainant should be at descrect to give written statement.
  •  Written statement should be duly signed or thumb impressioned.
  • Only a report of congnizable offence should be lodged in FIR.
  • Authentic information should be mentioned in FIR.
  • Place, Date & Time of occurrence should be mentioned in the FIR.
  •  Arrival & Departure of the informer should be mentioned in the FIR as well as Daily Dairy Register.
  • Delay, if any, in registering the case should be covered in FIR.
  • Description & Role of every accused involved in the Commission of offence should be covered in FIR.
  • Kind of physical damage & property destroyed should be mentioned in the FIR. 1
  • Weapon of offence and observation of Scene of crime should be mentioned in the FIR.
  • Telephone number, if any, of the complainant should also be mentioned.
  • Four copies of FIR should be prepared simultaniously by carbon paper process.
  • FIR should be lodged in neat & clean hand writing and be kept in safe custody being a permanent record.
  • A copy of FIR should be sent to MM concerned immediately.
  • A copy of FIR should be provided to the complainant free of cost.

What is difference between F.I.R and Police Complaint?

What is difference between F.I.R and Police Complaint?

What is difference between F.I.R and Police Complaint?

An F.I.R can only be filed for a cognizable crime. In the event someone is trying to file an F.I.R for a crime that falls in the non-cognisable category it is the duty of the police to listen to them, enter the matter in their daily register or dairy, give the person a signed copy of the entry made (as proof of the matter being recorded) and direct them to the closest or appropriate magistrate. The signed copy of the entry made by the police is free of cost and is a right to receive.

The police may not investigate a complaint even if you file a FIR, when: (i) The case is not serious in nature; (ii) The police feel that there is not enough ground to investigate. However, the police must record the reasons for not conducting an investigation and in the latter case must also inform you.

What to do when the police refuse to file F.I.R?

  • If Police officer concerned (SHO), refuses to Register complaint/FIR, than by virtue of section 154(3), a written Complaint may be send by Post to the Superintendent of Police or the Commissioner of Police; If Superintendent of Police or the Commissioner of Police is satisfied that the Complaint discloses cognizable offence, he may himself investigate the case or cause the investigation of the case by any Police officer subordinate to him.
  • What to do when the police refuse to file F.I.R?

    What to do when the police refuse to file F.I.R?

    Even after that if no any action has been taken then an application can be made under section 156(3) read with section 190 of Code of Criminal Procedure to a judicial Magistrate/ Metropolitan Magistrate thereby praying that police to register the FIR., investigate the case, file charge-sheet or report.

  • A Writ Petition in the respective High Court may be filed for the issuance of Writ of Mandamus against the defaulting Police officers, inter alia, to Register the FIR and directing him to show cause (a) why he has not registered the FIR; (b) why disciplinary proceedings for “Misconduct” should not be initiated against him for dereliction of duty; (c) why he should not be suspended from Police service for interfering in the administration of justice and shielding the accused person.
  • You can file an online complaint, find relevant information and also get the contact details of each State’s own Human Rights Commission office on the website of the National Human Rights Commission http://nhrc.nic.in.
  • Refusing to register an FIR on jurisdictional ground could now cost a policeman a year in jail. Taking strong view of increasing instances of such acts by police in various states, the Union home ministry has issued strict instructions to all states to not only initiate departmental inquiry against such cops but also prosecute them under Indian Penal Code.
  • The home ministry told the states and Union Territories to clearly instruct all police stations that failure to register FIR on receipt of information about any cognizable offence will invite prosecution of the duty police officer under I.P.C. Section 166A (government official disobeying law) which will invite imprisonment up to one year.
  • In its latest directive, the MHA told the states and UTs that policemen should be sensitized to respond to complaints with alacrity, whether it is from man or woman, and must apprehend the accused immediately after the complaint, as it adversely impacts the victim and there is tendency of persons committing crimes to slip away when there is delay on extraneous grounds like jurisdiction.

Do I have to pay for lodging an F.I.R?

No, It is free of cost.

Do I have to pay for lodging an F.I.R?

Do I have to pay for lodging an F.I.R?

FIR – A First Information Report (FIR) is a written document prepared by police organizations in Bangladesh, India, and Pakistan when they receive about the commission of a cognizable offence.
Importance of FIR – 

An FIR is a very important document as it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police takes up investigation of the case.

Who can lodge an FIR?

Anyone who knows about the commission of a cognizable offence can file an FIR. It is not necessary that only the victim of the crime should file an FIR. A police officer who comes to know about a cognizable offence can file an FIR himself/herself. You can file an FIR if:

  1. You are the person against whom the offence has been committed;
  2. You know yourself about an offence which has been committed;
  3. You have seen the offence being committed.

What happens to the F.I.R finally?

There are finally four conditions of the FIR – 

  • If there is sufficient evidence, a CHALLAN is prepared.
  • If there is insufficient evidence, F.I.R is declared as UNNTRACEABLE.
  • If FIR is found to be false or is transferred to other Police Station on point of jurisdiction, it is declared as CANCELLED.
  • After registering the F.I.R the contents of the F.I.R cannot be changed. Only High Court can quash the F.I.R.
What happens to the F.I.R finally?

What happens to the F.I.R finally?

FIR – A First Information Report (FIR) is a written document prepared by police organizations in Bangladesh, India, and Pakistan when they receive about the commission of a cognizable offence.
Importance of FIR – 

An FIR is a very important document as it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police takes up investigation of the case.

Who can lodge an FIR?

Anyone who knows about the commission of a cognizable offence can file an FIR. It is not necessary that only the victim of the crime should file an FIR. A police officer who comes to know about a cognizable offence can file an FIR himself/herself. You can file an FIR if:

  1. You are the person against whom the offence has been committed;
  2. You know yourself about an offence which has been committed;
  3. You have seen the offence being committed.

What should be do for FIR?

In the case of FIR follow these steps – 

  • What should be do for FIR?

    What should be do for FIR?

    FIR should be lodged immediately.

  • It should be recorded in first person.
  • Attitude/Behavious towards the vicitirn should be sympathetic.
  • Technical words should be avoided and as far as possible language of the inforrner/complainant should be used .
  • Written complaint should be taken.
  • But complainant should be at descrect to give written statement.
  •  Written statement should be duly signed or thumb impressioned.
  • Only a report of congnizable offence should be lodged in FIR.
  • Authentic information should be mentioned in FIR.
  • Place, Date & Time of occurrence should be mentioned in the FIR.
  •  Arrival & Departure of the informer should be mentioned in the FIR as well as Daily Dairy Register.
  • Delay, if any, in registering the case should be covered in FIR.
  • Description & Role of every accused involved in the Commission of offence should be covered in FIR.
  • Kind of physical damage & property destroyed should be mentioned in the FIR. 1
  • Weapon of offence and observation of Scene of crime should be mentioned in the FIR.
  • Telephone number, if any, of the complainant should also be mentioned.
  • Four copies of FIR should be prepared simultaniously by carbon paper process.
  • FIR should be lodged in neat & clean hand writing and be kept in safe custody being a permanent record.
  • A copy of FIR should be sent to MM concerned immediately.
  • A copy of FIR should be provided to the complainant free of cost.

What should not be do in case of FIR?

These are should not be do in case of FIR –

  • Complainant should not be puzzled.
  • Harsh language should not be used.
  • Aggression should be avoided.
  • Unnecessary details should be avoided.
  • Over-writing/ scoring should be avoided.
  • Offence should not be minimized.
  • Do not forget to take thumb impression or signature of the informer.
  • FIR should not be lodged on the basis of telephone telegram or hearsay rumour without verifying the facts and getting the signature of the informer.
What should not be do in case of FIR?

What should not be do in case of FIR?

FIR – A First Information Report (FIR) is a written document prepared by police organizations in Bangladesh, India, and Pakistan when they receive about the commission of a cognizable offence.
Importance of FIR – 

An FIR is a very important document as it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police takes up investigation of the case.

Who can lodge an FIR?

Anyone who knows about the commission of a cognizable offence can file an FIR. It is not necessary that only the victim of the crime should file an FIR. A police officer who comes to know about a cognizable offence can file an FIR himself/herself. You can file an FIR if:

  1. You are the person against whom the offence has been committed;
  2. You know yourself about an offence which has been committed;
  3. You have seen the offence being committed.

 

How do I lodge a NC complaint?

NC complaint stands for non-cognizable complaint. Give information as a similar manner as explained under F.I.R. The officer in-charge would reduce the complaint in writing and give a copy thereof to the complainant free of cost.
No police officer can investigate a non-cognizable case unless he obtains prior permission of a Magistrate having power to try such case.
In Non-Cognizable offenses police cannot arrest the accused without the court order, but in cognizable offense a police officer can arrest without any court orders. Such cases are mainly, murder, attempt to murder, rape and in heinous offences
hammer_scalesDifference Between Cognizable and Non-Cognizable –
Crime can be Cognizable or Non-Cognizable Difference between a cognizable and a non-cognizable offence is that in a non-cognizable offence the Police cannot arrest a person without orders of the court, i.e. without a Court warrant and can investigate into the case only on the express directions of the court to that effect. Therefore, the experience is that in a non-cognizable offence the Police Station officer records the complaint as a non-cognizable offense, commonly referred as a N.C., and advises the complaint or victim to apporach the court for further directions.

What action can be expected from the police in a non-cognizable offence?

Following actions can be expected from the police in a non-cognizable offence –

  • What action can be expected from the police in a non-cognizable offence?

    What action can be expected from the police in a non-cognizable offence?

    The information regarding non-cognizable offence ought to get lodged in the Daily Diary Register.

  • Complainant ought to get advised & briefed properly to approach the Court.
  • Police officer can not investigate into the Non-congnizable cases without the order of the court.
  • A copy of DD entry duly signed ought to be provided to the complainant free ocost.
  • If orders regarding investigation into non-cognizable cases is received the same procedure should be adopted as in the cognizable cases.
  • Orders of the court should be obtained to arrest the accused in Non congnizable cases after the investigation
  • If one of the offences in the commission of crime is cognizable office then Non-congnizable offence should also be investigated in the same manner( as Cognizable offences are investigated.

What action can be expected from the police in a non-cognizable offence?

What is complaint?

Complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the code of criminal procedure (1973), that some person (whether known or unknown), has committed an offence. It can be related to a robbery, accident, murder, etc. Thus, it is quiet possible that a police complaint can also be converted into FIR, if the investigation proves to be a serious matter.

What is complaint?

What is complaint?

You can inform about allegation orally or in writing to a Magistrate, with a view to his taking action under the code of criminal procedure (1973), that some person (known or unknown), has committed an offence.

Technically an F.I.R refers to the information on the commission of an offence given to a police officer by the first informant. In other words, it is basically a complaint document that sets the provisions of the criminal law in motion.

What is complaint?

What is Section 177?

What is Section 177?

What is Section 177?

Section 177 is related to furnishing false information. Whoever, being legally bound to furnish information on any subject to any public servant, as such, furnishes, as true, information on the subject which he knows or has reason to believe to be false, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both; or, if the information which he is legally bound to give respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with imprisonment of either descrip­tion for a term which may extend to two years, or with fine, or with both.

The first illustration attached to the section relates to the first part while the second one illustrates the second part of the section quite well. An explanation has been provided under the section which applies to sections 176 and 177 both, and which widens the meaning of the words ‘offence’ and ‘offender’ used in these two sections.

What is Section 182?

What is Section 182?

What is Section 182?

Section 182 – False information, with intent to cause public servant to use his lawful power to the injury of another person.—Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant—

  • To do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or
  • To use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Illustrations
  • A informs a Magistrate that Z, a police-officer, subordinate to such Magistrate, has been guilty of neglect of duty or miscon­duct, knowing such information to be false, and knowing it to be likely that the information will cause the Magistrate to dismiss Z. A has committed the offence defined in this section.
  • A falsely informs a public servant that Z has contraband salt in a secret place knowing such information to be false, and knowing that it is likely that the consequence of the information will be a search of Z’s premises, attended with annoyance to Z. A has committed the offence defined in this section.
  • A falsely informs a policeman that he has been assaulted and robbed in the neighbourhood of a particular village. He does not mention the name of any person as one of his assistants, but knows it to be likely that in consequence of this information the police will make enquiries and institute searches in the village to the annoyance of the villages or some of them. A has committed an offence under this section.

What is Section 211?

Section 211 – False charge of offence made with intent to injure. Whoev­er, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to

What is Section 211?

What is Section 211?

two years, or with fine, or with both.

And if such criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life or imprisonment for seven years, or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Section 211 deals with two distinct offences: (i) Actually instituting or causing to be instituted a false Criminal Proceeding against a person; (ii) Preferring a false charge against a person for having committed an offence. To constitute an offence under Section 211 the ingredients are (i) The accused instituted or caused to be instituted a criminal proceeding against a person; (ii) He falsely charged a person with having committed an offence; (iii) He did so with intent to cause injury to such person; (iv) He did so knowing that there was no just or lawful ground for such proceeding or charge

What is section 167?

Section 167 – Whoever, being a public servant, and being, as suchpublic servant, charged with the preparation or translation of any document, frames or translates that document in a manner which he knows or believes to be incorrect, in- tending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished udth imprisonment of either description for a term which may extend to three years, or with fine, or with both’.

What is section 167?

What is section 167?

Procedure when investigation cannot be completed in twenty four hours.

1.Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well- founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
2. The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction

What is section 166?

What is section 166?

What is section 166?

Section 166 – Public servant disobeying law, with intent to cause injury to any person.

“Whoever, bring a public servant, knowingly disobeys any direction of law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

Illustration A, being an officer directed by law to take property in execu­tion, in order to satisfy a decree pronounced in Z’s favour by a Court of Justice, knowingly disobeys that direction of law, with the knowledge that he is likely thereby to cause injury to Z. A has committed the offence defined in this section.

Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.

What is section 217?

Section 217 -Public servant disobeying direction of law with intent to save person from punishment or property from forfeiture.

“Whoever , being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or subject him to a less punishment than that to which he is liable, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or any charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

What is section 217?

What is section 217?

There shall be attached to every balance sheet laid before a company in general meeting, a report by its Board of directors, with respect to-

1. The state of the company’ s affairs;

2. the amounts, if any, which it proposes to carry to any reserves  in such balance sheet 

3. Ins. by Act 65 of 1960, s. 64.
4. The word” either” omitted by s. 65, ibid.
5. The words” or in a subsequent balance sheet; and” omitted by s. 65, ibid.
6. the amount, if any, which it recommends should be paid by way of dividend;
7. material changes and commitments, if any; affecting the financial position of the company which have occurred between the end of the financial year of the company to which the balance sheet relates and the date of the report.
8. the conservation of energy technology absorption, foreign exchange earnings and outgo, in such manner as may be prescribed.

 

Can your later version become an F.I.R?

No because FIR will remain the same on which the investigation was started. The later statement being during investigation, even if found true cannot become F.I.R.

Can your later version become an F.I.R?

Can your later version become an F.I.R?

FIR – A First Information Report (FIR) is a written document prepared by police organizations in Bangladesh, India, and Pakistan when they receive about the commission of a cognizable offence.

An FIR is a very important document as it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police takes up investigation of the case.

Anyone who knows about the commission of a cognizable offence can file an FIR. It is not necessary that only the victim of the crime should file an FIR. A police officer who comes to know about a cognizable offence can file an FIR himself/herself. You c
an file an FIR if:

  1. You are the person against whom the offence has been committed;
  2. You know yourself about an offence which has been committed;
  3. You have seen the offence being committed.

Are any kind of fee or charges to be paid to police for registration of FIR ?

No, It is free of cost.

fir

Are any kind of fee or charges to be paid to police for registration of FIR ?

FIR – A First Information Report (FIR) is a written document prepared by police organizations in Bangladesh, India, and Pakistan when they receive about the commission of a cognizable offence.

An FIR is a very important document as it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police takes up investigation of the case.

Anyone who knows about the commission of a cognizable offence can file an FIR. It is not necessary that only the victim of the crime should file an FIR. A police officer who comes to know about a cognizable offence can file an FIR himself/herself. You can file an FIR if:

  1. You are the person against whom the offence has been committed;
  2. You know yourself about an offence which has been committed;
  3. You have seen the offence being committed.

 

Is it an offence to register/lodge false FIR ?

Yes. Under section 182 IPC or under section 211 IPC it is punishable offence. Lodging of a false FIR/complaint is punishable under IPC. Such an informant / complainant can be proceeded against under section 182 IPC or under section 211 IPC by the police. Private person against whom false FIR/complaint has been lodged can also file complaint in the court for the offence of defamation.

If a false FIR is registered against you under a cognizable offence then following ponits can help you – 

Is it an offence to register/lodge false FIR ?

Is it an offence to register/lodge false FIR ?

First find out whether or not the sections mentioned in the FIR are bailable or non-bailable. If they are non-bailable, you are in trouble. You must hire a good lawyer immediately.

There is a huge gap between what the law mandates and what really happens after this. I will share the reality and not just the theoretical possibilities.

Although I do not endorse this is any way, still to share practical experience: Almost always, the moment an FIR is filed, a counter FIR against the complainant is filed immediately with false allegations. If you also file a police complaint, expect that the other party will file a complaint against you too, no matter how frivolous and false. Later, this is used as a chip to bargain against you.

After this, you will have many influential local people who would try to mediate and convince both parties to withdraw the complaints. If you are accused, and have filed a serious FIR yourself, you will almost definitely be approached by the other party’s messengers to negotiate.

Your focus will probably on avoiding arrest, hence going to police station etc. is not a good idea. Most people abscond. Police is often not serious about arresting, especially if charges are such the maximum punishment  is less than 7 years imprisonment.

Police is supposed to investigate at this stage. At this time, usually the investigating officer is bribed by both parties. This is also often crucial in terms of whether an arrest will take place or not. Police have the power to submit a final report or a reduced chargesheet. This is why bribe is paid. This can take upto 2-3 months in most cases. You will obtain a certified copy of the chargesheet after this, following which the trial will begin at some point.

 

Whether a police officer can arrest a person without warrant?

If person has been involved in any cognizable offence, police can arrest without warrant.

When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, you can be detained, however, or held for questioning for a short time if a police officer or other person believes you may be involved in a crime. For example, an officer may detain you if you are carrying a large box near a burglary site. You can also be detained by storekeepers if they suspect you have stolen something.
Whether you are arrested or detained, you do not have to answer any questions except to give your name and address and show some identification if requested.

Rights You Do

Whether a police officer can arrest a person without warrant?

Whether a police officer can arrest a person without warrant?

Whether you are an adult citizen or non-citizen, you have certain rights if you are arrested.
Before the law enforcement officer questions you, he or she should tell you that:
– You have the right to remain silent.
– Anything you say may be used against you.
– You have a right to have a lawyer present while you are questioned.
– If you cannot afford a lawyer, one will be appointed for you.
These are your rights, guaranteed by the Constitution. If you are not given these warnings, your lawyer can ask that any statements you made to the police not be used against you in court. But this does not necessarily mean that your case will be dismissed. This does not apply if you volunteer information without being questioned by the police.

In case of road accident to whom we report ?

You can give the information nearest police station.

Motor Accidents Claims Tribunal MACT deals with matters related to compensation of motor accidents victims or their next of kin .The Tribunal deal with claims relating to loss of life/property and injury cases resulting from Motor Accidents.

MACT Courts are presided over by Judicial Officers from the State Higher Judicial Service. Now these Courts are under direct supervision of the Hon’ble High Court of the respective state

Report to MACT in case of accident

Victim himself or through Advocate,in the case of personal injury. Through advocate in case of minor applicant below the age of 18 years. Legal heirs themselves or through advocate in the case of death.The owner of the vehicle in the case of property damage.

All documents should accompany the petition 

In case of road accident to whom we report ?

In case of road accident to whom we report ?

1. Copy of the FIR registered in connection with said accident, if any.

2. Copy of the MLC/Post Mortem Report/Death Report as the case may be.

3. The documents of the identity of the claimants and of the deceased in a death case.

4. Original bills of expenses incurred on the treatment alongwith treatment record.

5. Documents of the educational qualifications of the deceased, if any.

6. Disability Certificate, if already obtained, in an injury case.

7. The proof of income of the deceased/injured.

8. Documents about the age of the victim.

9. The cover note of the third party insurance policy, if any.

10.An affidavit detailing the relationship of the claimants with the deceased

Whether a police officer can search a person/place without a search warrant?

Yes. Under certain conditions, police can do this.

What is search warrant?

A legal document authorizing a police officer or other official to enter and search premises.

Under what circumstances a search warrant can be issued ?

According to Section 93 section —

A search warrant with a plastic bag for evidence. Vector illustration.

Whether a police officer can search a person/place without a search warrant?

1.a ) where any court has reason to believe that a person to whom a summons or order under section 91 or a requisition under subsection (1) of the section 92 has been , or might be , addressed , will not or would not produce the document or thing as required by such summons on requisition , or

 

  1. b) where such document or thing is not known to the court to be in the possession of any person , or

 

  1. c) where the court considers that the purpose of any inquiry , trial or other proceeding under this Code will be served by a general search or inspection , it may issue a search warrant ; and the person to whom such warrant is directed , may search or inspect in accordance therewith and the provisions of the Code.

What are the Legislative Powers of Administration Law?

 

What are the Legislative Powers of Administration Law?

What are the Legislative Powers of Administration Law?

There are following Legislative Powers of Administration law in india – 

  1. Concept of Delegated legislation / Subsidiary legislation
  2. Delegation of legislative power
  3. Constitutionality of delegated legislation-powers of exclusion and inclusion and power to modify statute
  4. Requirements for the validity of delegated legislation
  5. Consultation of affected interests and public participation decision-making
  6. Publication of delegated legislation
  7. Administrative directions, circulars and policy statements
  8. Legislative control of delegated legislation
  9. Laying procedures and their efficacy
  10. Committees on delegated legislation – their constitution function and effectiveness
  11. Hearings before legislative committees
  12. Judicial control of delegated legislation
  13. Doctrine of ultra vires
  14. Sub-delegation of legislative powers.

Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law.

As a body of law, administrative law deals with the decision-making of administrative units of government (for example, tribunals, boards or commissions) that are part of a national regulatory scheme in such areas as police law, international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport.

 

What is Administrative Adjudicatory Process?

What is Administrative Adjudicatory Process?

What is Administrative Adjudicatory Process?

There are following administrative process –

 

  1. Administrative tribunals and other adjudicating authorities their ad-hoc character
  2. Central Board of Customs and Excise
  3. MRTP Commission
  4. ESI Courts
  5. Service Tribunals
  6. Jurisdiction of administrative tribunal
  7. Distinction between Quasi-Judicial Function and administrative functions
  8. Legal Representation in Administrative proceedings.

There are following Legislative Powers of Administration law in india –

  1. Concept of Delegated legislation / Subsidiary legislation
  2. Delegation of legislative power
  3. Constitutionality of delegated legislation-powers of exclusion and inclusion and power to modify statute
  4. Requirements for the validity of delegated legislation
  5. Consultation of affected interests and public participation decision-making
  6. Publication of delegated legislation
  7. Administrative directions, circulars and policy statements
  8. Legislative control of delegated legislation
  9. Laying procedures and their efficacy
  10. Committees on delegated legislation – their constitution function and effectiveness
  11. Hearings before legislative committees
  12. Judicial control of delegated legislation
  13. Doctrine of ultra vires
  14. Sub-delegation of legislative powers.

Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law.

 

 

 

What is Principles of natural justice?

What is Principles of natural justice?

What is Principles of natural justice?

The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process.

 

  1. Principles of Natural Justice
  2. Principles of Natural Justice and India
  3. Right to hearing
  4. Essentials of hearing process
  5. Rule against bias – No one can be a judge in his own cause
  6. Oral hearing
  7. Right to counsel
  8. Institutional Decision
  9. Exception to the rule of Natural Justice
  10. Violation of principles of natural justice
  11. Administrative Appeals
  12. Council of Tribunals and Inquiries in England
  13. U.S. Regulatory Agencies
  14. Administrative Procedures Act 1946
  15. Exceptions to the rules of natural justice
  16. Violation of principles of natural justice

Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law.

 

What is judicial control of administrative action?

 

What is judicial control of administrative action?

What is judicial control of administrative action?

Meaning of Judicial Review or Judicial Control of Administrative Action
‘Judicial review’ may be defined as a “Court’s power to review the actions of others branches of government, especially the Court’s power to invalidate legislative and executive actions as being unconstitutional”.

  • Judicial Control of Administrative Action is the judicial review of the administration by the courts using principles developed by the courts themselves.
  • The general trend is such that judicial review of administrative actions is widened and immunity restricting it is reduced
  • Courts are empowered to take up action for the enforcement of Fundamental Rights
  • Courts as final authority of determine legality of administrative action-problems and perspectives
  • Exhaustion of administrative remedies
  • Laches or unreasonable delay
  • Res judicata says that the matter cannot be raised again, either in the same court or in a different court (of the same level).
  • Grounds of Judicial Review of Administrative Action
  • Jurisdictional error / ultra vires
  • Abuse and non exercise of jurisdiction
  • Error apparent on the face of the record
  • Violation of principles of natural justice
  • Violation of public policy
  • Primary jurisdiction
  • Doctrine of Legitimate Expectation
  • Doctrine of public accountability
  • Doctrine of proportionality
  • Methods of Judicial Review
  • Statutory appeals
  • Public Interest Litigation
  • Writs
    • Mandamus
    • Certiorari
    • Prohibition
    • Quo Warranto
    • Habeas Corpus
  • Declaratory judgments and injunctions
  • Specific performance and civil suits for compensation
  • Fact-finding commissions
  • Finality Clause – clauses that put acts outside judicial review

 

 

What is origin of judicial review in india?

What is origin of judicial review in india?

What is origin of judicial review in india?

The doctrine of judicial review has acquired different nuances during the course of its evolution in UK, USA, and India. Its origins can be traced to UK which has no written Constitution. It has become firmly established in USA with a written Constitution establishing a federal polity.

However, the doctrine reached its culmination under the Indian Constitution when the Supreme Court of India bestowed on judicial review the widest ambit and amplitude in the casus célèbre Keshvanand Bharti v. State of Kerala .

The very old case on judicial review in England in case Dr. Bonham’s Chief Justice Coke stated that when an Act of Parliament was against common right or reason, repugnant or impossible to perform, the Common Law would control it and adjudge such Act to be void. In the Historic case Marbury v. Madison the Supreme Court of America made it clears that Court had the power of judicial review, Chief Justice George Marshall observed:

“Certainly all those who have framed the written Constitution contemplate them as forming the fundamental and paramount law of the nations and theory of every such government must be that the legislature, repugnant to the Constitution is void”.

What is judicial review in administrative laws?

What is judicial review in administrative laws?

What is judicial review in administrative laws?

Judicial Review : ‘Judicial review’ may be defined as a “Court’s power to review the actions of others branches of government, especially the Court’s power to invalidate legislative and executive actions as being unconstitutional”.

Broadly speaking, judicial review in India deals with these aspects:
I. Judicial Review of Legislative Actions
II. Judicial Review of Administrative Actions
III. Judicial Review of Judicial Actions

We are dealing with second aspects, namely Judicial Review of Administrative Actions.

Judicial Review of Administrative Actions

 

  • Judicial Control of Administrative Action is the judicial review of the administration by the courts using principles developed by the courts themselves.
  • The general trend is such that judicial review of administrative actions is widened and immunity restricting it is reduced
  • Courts are empowered to take up action for the enforcement of Fundamental Rights
  • Courts as final authority of determine legality of administrative action-problems and perspectives
  • Exhaustion of administrative remedies
  • Laches or unreasonable delay
  • Res judicata says that the matter cannot be raised again, either in the same court or in a different court (of the same level).
  • Grounds of Judicial Review of Administrative Action
  • Jurisdictional error / ultra vires
  • Abuse and non exercise of jurisdiction
  • Error apparent on the face of the record
  • Violation of principles of natural justice
  • Violation of public policy
  • Primary jurisdiction
  • Doctrine of Legitimate Expectation
  • Doctrine of public accountability
  • Doctrine of proportionality
  • Methods of Judicial Review
  • Statutory appeals
  • Public Interest Litigation
  • Writs
    • Mandamus
    • Certiorari
    • Prohibition
    • Quo Warranto
    • Habeas Corpus
  • Declaratory judgments and injunctions
  • Specific performance and civil suits for compensation
  • Fact-finding commissions
  • Finality Clause – clauses that put acts outside judicial review

 

 

What is grounds for judicial review of administrative actions?

What is grounds for judicial review of administrative actions?

What is grounds for judicial review of administrative actions?

Grounds for Judicial Review of Administrative Actions are-
1. Illegality
2. Irrationality
3. Procedural impropriety
4. Proportionality

Judicial review : ‘Judicial review’ may be defined as a “Court’s power to review the actions of others branches of government, especially the Court’s power to invalidate legislative and executive actions as being unconstitutional”.

Broadly speaking, judicial review in India deals with these aspects-
1. Judicial Review of Legislative Actions
2. Judicial Review of Administrative Actions
3. Judicial Review of Judicial Actions

We are dealing with second aspects, namely Judicial Review of Administrative Actions.

Administrative action may be statutory, having the force of law, or non statutory, devoid of such legal force. The bulk of the administrative action is statutory because a statute or the Constitution gives it a legal force but in some cases it may be non-statutory, such as issuing directions to subordinates not having the force of law, but its violation may be visited with disciplinary action. Though by and large administrative action is discretionary and is based on subjective satisfaction, however, the administrative authority must act fairly, impartially and reasonable.

What is todays’ scenario over administrative actions in india?

What is todays' scenario over administrative actions in india?

What is todays’ scenario over administrative actions in india?

Judicial review is central in dealing with the malignancy in the exercise of power. However, in the changed circumstances of socio-economic development in the country the Court is emphasizing ‘self restraint’. Unless the administrative action is violative of law or the Constitution or is arbitrary or mala fide,

Courts should not interfere in administrative decisions . Moving in this direction, the apex Court in Sidheswar Sahakari Sakhar Karkhana Ltd. v. Union of India, was of the opinion that normally the Court should not interfere in policy matter which is within the purview of the government unless it is shown to be contrary to law or inconsistent with the provisions of the Constitution.

Therefore, it was held that grant of concession, exemption, incentive and rebate is a matter of policy with the government under the Central Excise Act, 1944, and hence, Court should not interfere unless found violative of law and Constitution.

The Court was quick to add that this principle of judicial review is not a matter of exclusion of the power of judicial review but of judicial “self-restraint” . Before us there are various instances where serious administrative actions lapses in government department. First important case is coal scam in which the figure to be around 1,060,000 crore.

What are the types of writs under Article of 32, and Article of 226 of Constitution of India?

What are the types of writs under Article of 32, and Article of 226 of Constitution of India?

What are the types of writs under Article of 32, and Article of 226 of Constitution of India?

There are five types of writs under Article of 32, and Article of 226 of Constitution of India – 

  • Habeas Corpus writ
  • Mandamus writ
  • Quo Warranto
  • Prohibition
  • Certiorari.

Habeas Corpus writ literally means “Have the body” this writ is issue to secure the release of person from illegal detention or without legal justification, its deals with person right of freedom. In simple words Court direct the person and even authority who has detained individual to bring such person before Court so that Court may decide the validity, justification, jurisdiction of such detention. It is to be filed by any person.

Mandamus writ means that “To command the public authority” to perform its public duty in India. It is discretionary remedy even as all five writs are discretionary remedy in nature. Court has full power to refuse to entertain a writ petition. This writ is not lie on president, governor, state legislatures, private individuals or any registered body.

Quo Warranto is ancient common law remedy. It is used against an intruder or usurper of public office. Literally means “What is your authority”. Court directs the concerned person that by what authority he holds the office. The Court may oust a person from the office if he finds that he is not entitled to obtain such office.

Prohibition Prohibition is an extraordinary prerogative writ of prevention; it seeks to prevent Courts, Tribunals, Quasi-judicial authorities and officers from exceeding their jurisdiction. Main object of this writ is to prevent the encroachment of jurisdiction. It is based upon “Prevention is better than cure”.

Certiorari deals with a method to bring the record of subordinate Court before the superior Court for correction of jurisdiction or error of law committed by them. In simple word if any inferior Court decided the case beyond its powers than Apex Court and High Courts correct the error by issuing this writ. Earlier it was used for criminal matters but later on it was started to use in civil cases too. Grounds for this writ are (a) excess or failure to exercise the jurisdiction (b) violation of natural justice rules such as right of notice and hearing (c) violation of fundamental rights or statutory provisions of laws. (c) Finding of facts which no person would have reached to the conclusion.

What are the remedies of judicial review in administrative laws?

What are the remedies of judicial review in administrative laws?

What are the remedies of judicial review in administrative laws?

Under Article of 32, and Article of 226 of Constitution of India, there are following remedies of judicial review in administrative laws –

Habeas Corpus writ literally means “Have the body” this writ is issue to secure the release of person from illegal detention or without legal justification, its deals with person right of freedom. In simple words Court direct the person and even authority who has detained individual to bring such person before Court so that Court may decide the validity, justification, jurisdiction of such detention. It is to be filed by any person.

Mandamus writ means that “To command the public authority” to perform its public duty in India. It is discretionary remedy even as all five writs are discretionary remedy in nature. Court has full power to refuse to entertain a writ petition. This writ is not lie on president, governor, state legislatures, private individuals or any registered body.

Quo Warranto is ancient common law remedy. It is used against an intruder or usurper of public office. Literally means “What is your authority”. Court directs the concerned person that by what authority he holds the office. The Court may oust a person from the office if he finds that he is not entitled to obtain such office.

Prohibition Prohibition is an extraordinary prerogative writ of prevention; it seeks to prevent Courts, Tribunals, Quasi-judicial authorities and officers from exceeding their jurisdiction. Main object of this writ is to prevent the encroachment of jurisdiction. It is based upon “Prevention is better than cure”.

Certiorari deals with a method to bring the record of subordinate Court before the superior Court for correction of jurisdiction or error of law committed by them. In simple word if any inferior Court decided the case beyond its powers than Apex Court and High Courts correct the error by issuing this writ. Earlier it was used for criminal matters but later on it was started to use in civil cases too. Grounds for this writ are (a) excess or failure to exercise the jurisdiction (b) violation of natural justice rules such as right of notice and hearing (c) violation of fundamental rights or statutory provisions of laws. (c) Finding of facts which no person would have reached to the conclusion.

Which article of Constitution of India describes the types of writs for judicial review of administrative actions?

Which article of Constitution of India describes the types of writs for judicial review of administrative actions?

Which article of Constitution of India describes the types of writs for judicial review of administrative actions?

There are five types of writs under Article of 32, and Article of 226 of Constitution of India –

  • Habeas Corpus writ
  • Mandamus writ
  • Quo Warranto
  • Prohibition
  • Certiorari.

Meaning of Judicial Review
‘Judicial review’ may be defined as a “Court’s power to review the actions of others branches of government, especially the Court’s power to invalidate legislative and executive actions as being unconstitutional”.

Broadly speaking, judicial review in India deals with these aspects:
1. Judicial Review of Legislative Actions
2. Judicial Review of Administrative Actions
3. Judicial Review of Judicial Actions

We are dealing with second aspects, namely Judicial Review of Administrative Actions.

Administrative action is the residuary action which is neither legislative nor judicial. It is concerned with the treatment of a particular situation and is devoid of generality. It has no procedural obligations of collecting evidence and weighing argument. It is based on subjective satisfaction where decision is based on policy and expediency. It does not decide a right though it may affect a right. However, it does not mean that the principles of natural justice can be ignored completely when the authority is exercising “administrative powers”. Unless the statute provides otherwise, a minimum of the principles of natural justice must always be observed depending on the fact situation of each case.

 

Where do you can file the case?

Where do you can file the case?

Where do you can file the case?

There are various categories of Courts. All categories can be classified under Courts of First instance and appellate Courts. As per Section 15 of Civil Procedure Code every suit shall be instituted in the Court of the lowest grade competent to try it.

Every Court has specific pecuniary and territorial jurisdiction. So we cannot file suits as per our convenience.

Rules regarding filing of suits are guided by various provisions of Civil Procedure Code.

Before filing a suit one should know where or before which Court the suit has to be filed. It is called place of suing. Place of suing is subjected to two limitations:
(1) territorial jurisdiction of the Court; and
(2) pecuniary jurisdiction of the Court, Territorial jurisdiction depends upon the nature of the suit, i.e. subject matter of the dispute. Depending upon the nature of subject matter, suits are divided into 3 categories. They are-
1. Suits relating to immovable property.
2. Suits relating to compensation for wrongs to person and movables.
3. Other suits.

 

What is Civil Procedure Code in case of Suits relating to immovable property?

What is Civil Procedure Code in case of Suits relating to immovable property?

What is Civil Procedure Code in case of Suits relating to immovable property?

Section 16 of the Civil Procedure Code is as follows:
“Suits to be instituted where subject matter situate:­ Subject to the pecuniary and other limitations prescribed by any law, suits-

  • For the recovery of immovable property with or without rent or profits.
  • For the partition of immovable property.
  • For the foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property.
  • For the determination of any other right to or interest in immovable property.
  • For compensation for wrong to immovable property.
  • For the recovery of immovable property actually under distraint or attachment,

    shall be instituted in the Court within the local limits of whose jurisdiction the property is situate:
    Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.”

What is immovable property?

What is immovable property?

What is immovable property?

Land and buildings are immovable properties.  But that is not where the question is significant. The question becomes complicated when we extend the meaning of immovable property to include things which are embedded or fastened to earth, commonly known as “fixtures”.

Fixtures may be done to civic structures – for example, doors or windows to buildings; fixtures may also arise in case of variety of plant, machinery, equipment, installations, such as furnaces, boilers, towers, and so on.

To describe it in more detail, immovable property includes land, buildings, hereditary allowances, rights to way, lights, ferries, fisheries or any other benefit which arises out of land, and things attached to the earth or permanently fastened to anything which is attached to the earth.

It does not include standing timber, growing crops, nor grass. It includes the right to collect rent, life interest in the income of the immovable property, a right of way, a fishery, or a lease of land.

What is movable property?

What is movable property?

What is movable property?

In civil law systems, personal property is often called movable property or movables – any property that can be moved from one location to another.

1. The movable property can easily be transported from one place to another, without changing its shape, capacity, quantity or quality.

2. Examples: vehicles, books, utensils, timber, etc.

3. Mango trees, if cut and sold for timber purpose, are deemed as movable property.

4. Contract for cutting the bamboos and collection of beedi leaves for orve sjear comes under movable property.

5. The movable property need not be registered under the Indian Registration Act, 1908. It is purely optional.

6. The movable property is liable to sales tax, and Central sales tax, subject to certain restrictions and conditions under the Andhra Pradesh General Sales Tax Act, 1957 (or the State concerned) and the Central Sales Tax Act, 1956.

7. Mere delivery with intention to transfer the movable property completes the transfer.

8. Movable property does not form an accretion to an ancestral impartibly estate. (Case-law: Thakur Hari Singh vs. Commissioner of Income-tax (AIR 1968 Raj. 5)

What are the Differences between Movable and Immovable Properties?

Differences between Movable and Immovable Properties

What are the Differences between Movable and Immovable Properties?

What are the Differences between Movable and Immovable Properties?

There are the following differences between movable and immovable properties –

Movable Property

1. The movable property can easily be transported from one place to another, without changing its shape, capacity, quantity or quality.

2. Examples: vehicles, books, utensils, timber, etc.

3. Mango trees, if cut and sold for timber purpose, are deemed as movable property.

4. Contract for cutting the bamboos and collection of beedi leaves for orve sjear comes under movable property.

5. The movable property need not be registered under the Indian Registration Act, 1908. It is purely optional.

6. The movable property is liable to sales tax, and Central sales tax, subject to certain restrictions and conditions under the Andhra Pradesh General Sales Tax Act, 1957 (or the State concerned) and the Central Sales Tax Act, 1956.

7. Mere delivery with intention to transfer the movable property completes the transfer.

8. Movable property does not form an accretion to an ancestral impartibly estate. (Case-law: Thakur Hari Singh vs. Commissioner of Income-tax (AIR 1968 Raj. 5)

Immovable Property

1. The immovable property cannot easily be transported from one place to another. If transported, It will lose its original shape, capacity, quantity or quality.

2. Examples: Land, houses, trees attached to the ground; so long they are so attached.

3. Mango trees, if sold for nourishment and for fruits, they are deemed as immovable property.

4. Gutting the bamboos for a number of years under a contract comes under Immovable property.

5. Whenever the immovable property is transferred, it must compulsorily be registered under the Indian Registration Act, 1908, subject to its value if exceeds Rs. 100.

6. The immovable property is not liable to sales tax. But stamp duty is to be paid under the Indian Stamp Act 1899 and registration fee is to be paid under the Indian Registration Act 1908.

7. Mere delivery does not sufficient for a valid transfer. The property must be registered in the name of the transferee,

8. Immovable property only forms and accretion ‘ to an ancestral impartible estate. (Case-law: Mahendra Singji vs. Iswar Singji 1952 B. 243)

How can I know whether I need a permit to import or export wildlife specimens?

How can I know whether I need a permit to import or export wildlife specimens?

How can I know whether I need a permit to import or export wildlife specimens?

Import, export and re-export of any live animal or plant of a species listed in the CITES Appendices (or of any part or derivative of such animal or plant) requires a permit or certificate.

To find out whether a species is listed in the Appendices, you can check in the CITES-listed species database of this website, using either the scientific name or the common name of the species.

Alternatively, you can also check with the national agency (known as the “Management Authority”) of your country whether the species you are interested in needs a permit. They may be able to identify the species for you if you are not sure what it is.

International Trade Law includes the appropriate rules and customs for handling trade between countries. However, it is also used in legal writings as trade between private sectors, which is not right.

International trade is a complicated area of law to research because there are numerous levels of trade organizations and interactions. There are bilateral trade agreements, regional trade agreements and multinational trade agreements. Each of these agreements has its own history, policies and dispute settlement procedures.

Trade organizations established under the agreements have separate resources that can be searched. Furthermore, individual countries have their own policies and laws relating to international trade.

As an example, the United States Congress must pass legislation enacting international trade agreements before the United States can officially become a party. The national policies have to be researched individually and frequently separately from the resources relating to the international organizations.

How do countries decide what to export?

How do countries decide what to export?

How do countries decide what to export?

Most economists argue that countries produce and export goods in which they have an absolute or comparative advantage.

Exporting is the act of producing goods or services in one country and selling or trading them to another country. The term export originates from the Latin words ex and portare, meaning to carry out.

The counterpart to exporting is importing which is the acquisition and sale of goods from acquired from another country and selling them within the country.

Although it is common to speak of a nation’s exports or imports in the aggregate, the company that produces the good or service, as opposed to a national government, usually conducts exporting in terms of logistics and sales transactions. However, export and import levels may be highly influenced by government policies, such as offering subsidies that either restrict or encourage the sale of particular goods and services abroad.

What is an absolute advantage?

What is an absolute advantage?

What is an absolute advantage?

A country enjoys an absolute advantage when it can produce a certain good more efficiently and/or at less cost than another country.

International Trade Law includes the appropriate rules and customs for handling trade between countries. However, it is also used in legal writings as trade between private sectors, which is not right.

Exporting is the act of producing goods or services in one country and selling or trading them to another country. The term export originates from the Latin words ex and portare, meaning to carry out.

The counterpart to exporting is importing which is the acquisition and sale of goods from acquired from another country and selling them within the country.

Although it is common to speak of a nation’s exports or imports in the aggregate, the company that produces the good or service, as opposed to a national government, usually conducts exporting in terms of logistics and sales transactions. However, export and import levels may be highly influenced by government policies, such as offering subsidies that either restrict or encourage the sale of particular goods and services abroad.

What is Export?

What is Export?

What is Export?

Export is the act of producing goods or services in one country and selling or trading them to another country. The term export originates from the Latin words ex and portare, meaning to carry out.

The counterpart to exporting is importing which is the acquisition and sale of goods from acquired from another country and selling them within the country.

A function of international trade whereby goods produced in one country are shipped to another country for future sale or trade. The sale of such goods adds to the producing nation’s gross output. If used for trade, exports are exchanged for other products or services.

Exports are one of the oldest forms of economic transfer, and occur on a large scale between nations that have fewer restrictions on trade, such as tariffs or subsidies.

International Trade Law includes the appropriate rules and customs for handling trade between countries. However, it is also used in legal writings as trade between private sectors, which is not right.

 

What is Import?

What is Import?

What is Import?

The word “import” is derived from the word “port,” since goods are often shipped via boat to foreign countries. Countries are most likely to import goods that domestic industries cannot produce as efficiently or cheaply, but may also import raw materials or commodities that are not available within its borders.

For example, many countries have to import oil because they either cannot produce it domestically or cannot produce enough of it to meet demand.

A good or service brought into one country from another. Along with exports, imports form the backbone of international trade. The higher the value of imports entering a country, compared to the value of exports, the more negative that country’s balance of trade becomes.

An import in the receiving country is an export from the sending country.

International Trade Law includes the appropriate rules and customs for handling trade between countries. However, it is also used in legal writings as trade between private sectors, which is not right.

 

What is opportunity cost?

What is opportunity cost?

What is opportunity cost?

An opportunity cost is what you sacrifice in making an economic choice. In terms of foreign trade, it refers to the commercial profits accruing to product X that are sacrificed in deciding to produce and export product Y instead of X.

International Trade Law includes the appropriate rules and customs for handling trade between countries. However, it is also used in legal writings as trade between private sectors, which is not right.

International Trade Law includes the appropriate rules and customs for handling trade between countries. However, it is also used in legal writings as trade between private sectors, which is not right.

International trade is a complicated area of law to research because there are numerous levels of trade organizations and interactions. There are bilateral trade agreements, regional trade agreements and multinational trade agreements. Each of these agreements has its own history, policies and dispute settlement procedures.

Trade organizations established under the agreements have separate resources that can be searched. Furthermore, individual countries have their own policies and laws relating to international trade.

As an example, the United States Congress must pass legislation enacting international trade agreements before the United States can officially become a party. The national policies have to be researched individually and frequently separately from the resources relating to the international organizations.

What currency is used in completing an international exchange?

What currency is used in completing an international exchange?

What currency is used in completing an international exchange?

Generally, buyers have to complete their purchase in the currency of the selling nation. In other words, before buying a foreign product they must secure some foreign currency.

Currency is a generally accepted form of money, including coins and paper notes, which is issued by a government and circulated within an economy. Used as a medium of exchange for goods and services, currency is the basis for trade.

International Trade Law includes the appropriate rules and customs for handling trade between countries. However, it is also used in legal writings as trade between private sectors, which is not right.

International trade is a complicated area of law to research because there are numerous levels of trade organizations and interactions. There are bilateral trade agreements, regional trade agreements and multinational trade agreements. Each of these agreements has its own history, policies and dispute settlement procedures.

 

Have international exchange rates always been set by supply and demand?

Have international exchange rates always been set by supply and demand?

Have international exchange rates always been set by supply and demand?

No, international exchange rates always have not been set by supply and demand. The current system of flexible exchange rates is relatively new.

For the first part of the twentieth century many nations were on the gold standard—that is, they backed their currency with gold and uniformly tied the value of their currency to a specific quantity of gold.

But during the Great Depression the United States weakened the link between their currencies and gold. After World War II, the United States and many other nations adopted a fixed rate of exchange at a conference held at Bretton Woods, New Hampshire.

The value of the dollar was pegged to a certain quantity of gold and foreign currencies were pegged to the dollar.

International Trade Law includes the appropriate rules and customs for handling trade between countries. However, it is also used in legal writings as trade between private sectors, which is not right.

International trade is a complicated area of law to research because there are numerous levels of trade organizations and interactions. There are bilateral trade agreements, regional trade agreements and multinational trade agreements. Each of these agreements has its own history, policies and dispute settlement procedures.

What is direct exporting?

What is direct exporting?

What is direct exporting?

Direct Exporting – The typical exporting system is a company-owned export department, in which a manufacturer sells directly to companies or consumers in foreign countries.

In this arrangement, the company has complete control over the marketing and distribution of its goods and services, distribution, sales, pricing, and other business choices.

Direct exports are sold through foreign-based parties. Indirect exports are sold through home-based proxies or resellers. Both methods can be implemented through either merchants or agents.

In these cases, merchants actually assume ownership of the goods, as opposed to agents, who only represent the manufacturer or owner. Bartering is another method that manufacturers may use to sell their goods abroad.

A direct merchant is an organization in a foreign country that buys goods in the United States, or another country, and then proceeds to sell the goods in their own country.

The merchants usually offer complementary services to their buyers such as maintenance, parts sales, and technical support. A direct merchant often has a close relationship with the exporter, giving the merchant exclusive rights to sell and service the goods.

 

 

What is indirect exporting?

international trade lawsIndirect Exporting – When a company uses a home-based merchant or agent to find and deliver goods to foreign buyers it utilizes indirect exporting. This method of exporting poses the least amount of risk and expense because it is relatively easy to start up and has a moderate up-front capital investment. Indirect agents act as intermediaries between the exporter and buyer and facilitate the flow of goods.

There are several different types of indirect agents-

One is an export management company (EMC). EMCs usually represent several companies in one or more industries. The agent charges the domestic company a fee or commission and in return provides the manufacturer with access to foreign channels of distribution and knowledge of foreign markets.

International Trade Law includes the appropriate rules and customs for handling trade between countries. However, it is also used in legal writings as trade between private sectors, which is not right.

International trade is a complicated area of law to research because there are numerous levels of trade organizations and interactions. There are bilateral trade agreements, regional trade agreements and multinational trade agreements. Each of these agreements has its own history, policies and dispute settlement procedures.

 

What is a positive balance of payments?

What is a positive balance of payments?

What is a positive balance of payments?

Positive Balance Of Payments – A statement that summarizes an economy’s transactions with the rest of the world for a specified time period.

The balance of payments, also known as balance of international payments, encompasses all transactions between a country’s residents and its nonresidents involving goods, services and income; financial claims on and liabilities to the rest of the world; and transfers such as gifts.

The balance of payments classifies these transactions in two accounts – the current account and the capital account.

The current account includes transactions in goods, services, investment income and current transfers, while the capital account mainly includes transactions in financial instruments.

An economy’s balance of payments transactions and international investment position (IIP) together constitute its set of international accounts.

The United States could have a trade deficit, but a positive balance of payments if much of the money spent on foreign goods returned when foreigners consumed American services and invested in American industries.

 

How ownership of immovable property is acquired by a person?

How ownership of immovable property is acquired by a person?

How ownership of immovable property is acquired by a person?

A person may acquire immovable property in any of the following ways –

  • By inheritance of ancestral property.
  • Through will. Acquisition by oneself such as purchase etc.
  • Through gift, trust, settlement deeds. Grant, sanad / Inam by the Government.
  • Through partition deed. Through decree of Court.

There are two ways of acquisition –

  • By act of parties.

Example: Purchase, gift etc.

  • By operation of law

Example: Inheritance, decree of Court etc.

 

Property law is the area of law that governs the various forms of ownership and tenancy in real property (land as distinct from personal or movable possessions) and in personal property, within the common law legal system.

Immovable property is an immovable object, an item of property that cannot be moved without destroying or altering it – property that is fixed to the earth, such as land or a house. In the United States it is also commercially and legally known as real estate and in Britain as property.

The following categories can purchase immovable property in India:

  • Non-Resident Indian (NRI)
  • Person of Indian Origin (PIO)

 

 

How many ways of acquisition to the immovable property by a person?

How many ways of acquisition to the immovable property by a person?

How many ways of acquisition to the immovable property by a person?

There are two ways of acquisition to the immovable property by a person –

  • By act of parties.

Example: Purchase, gift etc.

  • By operation of law.

Example: Inheritance, decree of Court etc.

Note – For details please see Transfer of Property Act, 1882 (Central Act)

Property law is the area of law that governs the various forms of ownership and tenancy in real property (land as distinct from personal or movable possessions) and in personal property, within the common law legal system.

Immovable property is an immovable object, an item of property that cannot be moved without destroying or altering it – property that is fixed to the earth, such as land or a house. In the United States it is also commercially and legally known as real estate and in Britain as property.

The following categories can purchase immovable property in India:

  • Non-Resident Indian (NRI)
  • Person of Indian Origin (PIO)

 

Is it necessary to register in Office of the Sub Registrar to get khata transferred in respect of property acquired by inheritance?

Is it necessary to register in Office of the Sub Registrar to get khata transferred in respect of property acquired by inheritance?

Is it necessary to register in Office of the Sub Registrar to get khata transferred in respect of property acquired by inheritance?

No, it is not necessary to register a khata transfer in respect of a property acquired by inheritance in the office of the Sub-Registrar. After the death of owner of a property his heirs, such as wife, children i.e. male and female, married or unmarried may get the Khata transferred on production of death certificate of the owner with details of property held by him to the following officers.
If property is an agricultural land – Tahasildar (See Sec.128 of Karnataka Land Revenue Act, 1964) Offices of Corporation, Municipality, Panchayat or City survey if such office exists.

Property law is the area of law that governs the various forms of ownership and tenancy in real property (land as distinct from personal or movable possessions) and in personal property, within the common law legal system.

Immovable property is an immovable object, an item of property that cannot be moved without destroying or altering it – property that is fixed to the earth, such as land or a house. In the United States it is also commercially and legally known as real estate and in Britain as property.

The following categories can purchase immovable property in India:

  • Non-Resident Indian (NRI)
  • Person of Indian Origin (PIO)

Which are the documents requires to be compulsorily registered?

Which are the documents requires to be compulsorily registered?

Which are the documents requires to be compulsorily registered?

These are the documents requires to be compulsorily registered-

  • Gift deed of immovable property.
  • Other non-testamentary instruments, which purport or Operate to create, declare, assign, limit or extinguish whether in the present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property. Eg: Sale, mortgage, partition, release, settlement of immovable property.
  • Non testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extension of any such right, title or interest.
  • Leases of immovable property
  • Non testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish whether in the present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
  • The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2000 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.

How to effect partition of property?

  • How to effect partition of property?

    How to effect partition of property?

    If all the parties have share (common right) in the property partition can be effected. If partition is effected through an instrument such instrument must be compulsorily registered.

  • Oral partition affected through memorandum submitted to the concerned authorities need not be registered.
  •  Stamp duty has to be paid in respect any kind of partition whether it is to be compulsorily registered or not.
  •  Parties to the partition may agree to effect partition of unequal shares.

Property law is the area of law that governs the various forms of ownership and tenancy in real property (land as distinct from personal or movable possessions) and in personal property, within the common law legal system.

Immovable property is an immovable object, an item of property that cannot be moved without destroying or altering it – property that is fixed to the earth, such as land or a house. In the United States it is also commercially and legally known as real estate and in Britain as property.

The following categories can purchase immovable property in India:

  • Non-Resident Indian (NRI)
  • Person of Indian Origin (PIO)

What is a will in property laws?

What is a will in property laws?

What is a will in property laws?

A testamentary document by which a person bequeaths his property to be effective on his death is a will. The property will devolve on the person in whose favour it is bequeathed after death of testator.

Property law is the area of law that governs the various forms of ownership and tenancy in real property (land as distinct from personal or movable possessions) and in personal property, within the common law legal system.

It is not necessary to register a khata transfer in respect of a property acquired by inheritance in the office of the Sub-Registrar. After the death of owner of a property his heirs, such as wife, children i.e. male and female, married or unmarried may get the Khata transferred on production of death certificate of the owner with details of property held by him to the following officers.
If property is an agricultural land – Tahasildar (See Sec.128 of Karnataka Land Revenue Act, 1964) Offices of Corporation, Municipality, Panchayat or City survey if such office exists.

 

 

Who can execute a will?

Who can execute a will?

Who can execute a will?

Will – A testamentary document by which a person bequeaths his property to be effective on his death is a will. The property will devolve on the person in whose favour it is bequeathed after death of testator.

  •  Any person above the age of 18 years and mentally sound may execute will, but will caused by fraud or coercion or by importunately will not be valid. Therefore a will must be executed voluntarily.
  •  Parents or guardians cannot execute will on behalf of minors or lunatics.
  •  Attestation by minimum two witnesses is necessary.
  •  Scribe (deed writer / advocate) cannot be called witness. Two independent attesting witnesses other than the scribe or necessary.
  •  Beneficiary under a will should not sign as attesting witness.
    In order to avoid disputes in implementation of a will, description of property and the beneficiaries should be clearly be written without giving room for any doubt.

 

Is it compulsory to register a will?

Is it compulsory to register a will?

Is it compulsory to register a will?

It is not compulsory to register. Executants may register at his option. It is better to register the will. If original is lost a certified copy can be obtained from Sub-Registrar Office.

A testamentary document by which a person bequeaths his property to be effective on his death is a will. The property will devolve on the person in whose favour it is bequeathed after death of testator.

 

Condition of execute a will –

a) Any person above the age of 18 years and mentally sound may execute will, but will caused by fraud or coercion or by importunately will not be valid. Therefore a will must be executed voluntarily.
b) Parents or guardians cannot execute will on behalf of minors or lunatics.
c) Attestation by minimum two witnesses is necessary.
d) Scribe (deed writer / advocate) cannot be called witness. Two independent attesting witnesses other than the scribe or necessary.
e) Beneficiary under a will should not sign as attesting witness.
In order to avoid disputes in implementation of a will, description of property and the beneficiaries should be clearly be written without giving room for any doubt.

 

Where can the will be registered?

Where can the will be registered?

Where can the will be registered?

It can be registered in any office of the Sub Registrar in India.

A testamentary document by which a person bequeaths his property to be effective on his death is a will. The property will devolve on the person in whose favour it is bequeathed after death of testator.

 

Condition of execute a will –

a) Any person above the age of 18 years and mentally sound may execute will, but will caused by fraud or coercion or by importunately will not be valid. Therefore a will must be executed voluntarily.
b) Parents or guardians cannot execute will on behalf of minors or lunatics.
c) Attestation by minimum two witnesses is necessary.
d) Scribe (deed writer / advocate) cannot be called witness. Two independent attesting witnesses other than the scribe or necessary.
e) Beneficiary under a will should not sign as attesting witness.
In order to avoid disputes in implementation of a will, description of property and the beneficiaries should be clearly be written without giving room for any doubt.

Is there any time limit to register a will?

Is there any time limit to register a will?

Is there any time limit to register a will?

Will can be registered in any office of the Sub Registrar in India. There is no such time limit to register a will.

Condition of execute a will –

a) Any person above the age of 18 years and mentally sound may execute will, but will caused by fraud or coercion or by importunately will not be valid. Therefore a will must be executed voluntarily.
b) Parents or guardians cannot execute will on behalf of minors or lunatics.
c) Attestation by minimum two witnesses is necessary.
d) Scribe (deed writer / advocate) cannot be called witness. Two independent attesting witnesses other than the scribe or necessary.
e) Beneficiary under a will should not sign as attesting witness.
In order to avoid disputes in implementation of a will, description of property and the beneficiaries should be clearly be written without giving room for any doubt.

Can a will be cancelled?

 Can a will be cancelled?

Can a will be cancelled?

The testator can cancel his will at any time during his lifetime. Wll cancellation deed requires a Stamp duty of Rs.100/-

Will– A testamentary document by which a person bequeaths his property to be effective on his death is a will. The property will devolve on the person in whose favour it is bequeathed after death of testator.

 

Condition of execute a will –

a) Any person above the age of 18 years and mentally sound may execute will, but will caused by fraud or coercion or by importunately will not be valid. Therefore a will must be executed voluntarily.
b) Parents or guardians cannot execute will on behalf of minors or lunatics.
c) Attestation by minimum two witnesses is necessary.
d) Scribe (deed writer / advocate) cannot be called witness. Two independent attesting witnesses other than the scribe or necessary.
e) Beneficiary under a will should not sign as attesting witness.
In order to avoid disputes in implementation of a will, description of property and the beneficiaries should be clearly be written without giving room for any doubt.

Can a registered will be rectified or changed?

 Can a registered will be rectified or changed?

Can a registered will be rectified or changed?

If executant of a will wishes to rectify, change the content by way of addition/deletion of any recital in the original will may do so during his lifetime. This is called codicil. This document does not require any stamp duty.

Will– A testamentary document by which a person bequeaths his property to be effective on his death is a will. The property will devolve on the person in whose favour it is bequeathed after death of testator.

 

Condition of execute a will –

a) Any person above the age of 18 years and mentally sound may execute will, but will caused by fraud or coercion or by importunately will not be valid. Therefore a will must be executed voluntarily.
b) Parents or guardians cannot execute will on behalf of minors or lunatics.
c) Attestation by minimum two witnesses is necessary.
d) Scribe (deed writer / advocate) cannot be called witness. Two independent attesting witnesses other than the scribe or necessary.
e) Beneficiary under a will should not sign as attesting witness.
In order to avoid disputes in implementation of a will, description of property and the beneficiaries should be clearly be written without giving room for any doubt.

Can a will be registered even after death of testator?

Can a will be registered even after death of testator?

Can a will be registered even after death of testator?

Yes, claiming party under the will have to produce will, records relating to the death of the testator, witnesses and the scribe before the Sub Registrar. If Sub Registrar is satisfied about the truth and genuineness of the execution of the will, he will register.

There is a procedure called “will enquiry” to be followed by the Registrar/Sub Registrar to register a will presented after the death of the testator.

Will– A testamentary document by which a person bequeaths his property to be effective on his death is a will. The property will devolve on the person in whose favour it is bequeathed after death of testator.

 

Condition of execute a will –

a) Any person above the age of 18 years and mentally sound may execute will, but will caused by fraud or coercion or by importunately will not be valid. Therefore a will must be executed voluntarily.
b) Parents or guardians cannot execute will on behalf of minors or lunatics.
c) Attestation by minimum two witnesses is necessary.
d) Scribe (deed writer / advocate) cannot be called witness. Two independent attesting witnesses other than the scribe or necessary.
e) Beneficiary under a will should not sign as attesting witness.
In order to avoid disputes in implementation of a will, description of property and the beneficiaries should be clearly be written without giving room for any doubt.

What is the Stamp duty and Registration fee to register a will?

What is the Stamp duty and Registration fee to register a will?

What is the Stamp duty and Registration fee to register a will?

There is no Stamp duty on will deed. For registration of will during the life time of the testator Rs.200 Registration fee prescribed + User Charges applicable.

To register the will after the death of the testator Registration fee of Rs.250 and enquiry fee including batta, processing expenses at actual will be collected.

Will– A testamentary document by which a person bequeaths his property to be effective on his death is a will. The property will devolve on the person in whose favour it is bequeathed after death of testator.

 

Condition of execute a will –

a) Any person above the age of 18 years and mentally sound may execute will, but will caused by fraud or coercion or by importunately will not be valid. Therefore a will must be executed voluntarily.
b) Parents or guardians cannot execute will on behalf of minors or lunatics.
c) Attestation by minimum two witnesses is necessary.
d) Scribe (deed writer / advocate) cannot be called witness. Two independent attesting witnesses other than the scribe or necessary.
e) Beneficiary under a will should not sign as attesting witness.
In order to avoid disputes in implementation of a will, description of property and the beneficiaries should be clearly be written without giving room for any doubt.

Is the certified copy of a registered will available to any body?

Is the certified copy of a registered will available to any body?

Is the certified copy of a registered will available to any body?

A certified copy of a registered will is available to the testator only during his lifetime. After his death anybody can obtain after producing proof of death of testator.

Will– A testamentary document by which a person bequeaths his property to be effective on his death is a will. The property will devolve on the person in whose favour it is bequeathed after death of testator.

 

Condition of execute a will –

a) Any person above the age of 18 years and mentally sound may execute will, but will caused by fraud or coercion or by importunately will not be valid. Therefore a will must be executed voluntarily.
b) Parents or guardians cannot execute will on behalf of minors or lunatics.
c) Attestation by minimum two witnesses is necessary.
d) Scribe (deed writer / advocate) cannot be called witness. Two independent attesting witnesses other than the scribe or necessary.
e) Beneficiary under a will should not sign as attesting witness.
In order to avoid disputes in implementation of a will, description of property and the beneficiaries should be clearly be written without giving room for any doubt.

How to keep contents of a will confidential?

How to keep contents of a will confidential?

How to keep contents of a will confidential?

If you can be deposited in a sealed cover in office of the District Registrar. A fee of Rs.1000-00 prescribed to deposit will in a sealed cover. Depositor or authorized person (executor) can withdraw the sealed cover containing a will, if desires to do so. A Registration of Rs.200-00 prescribed.

Will– A testamentary document by which a person bequeaths his property to be effective on his death is a will. The property will devolve on the person in whose favour it is bequeathed after death of testator.

 

Condition of execute a will –

a) Any person above the age of 18 years and mentally sound may execute will, but will caused by fraud or coercion or by importunately will not be valid. Therefore a will must be executed voluntarily.
b) Parents or guardians cannot execute will on behalf of minors or lunatics.
c) Attestation by minimum two witnesses is necessary.
d) Scribe (deed writer / advocate) cannot be called witness. Two independent attesting witnesses other than the scribe or necessary.
e) Beneficiary under a will should not sign as attesting witness.
In order to avoid disputes in implementation of a will, description of property and the beneficiaries should be clearly be written without giving room for any doubt.

What is the procedure to obtain the sealed cover containing a will after the death of the depositor?

What is the procedure to obtain the sealed cover containing a will after the death of the depositor?

What is the procedure to obtain the sealed cover containing a will after the death of the depositor?

On making an application along with proof of the death of the depositor, District Registrar will open sealed cover in the presence of the applicant and it will be registered. Certified copy will be issued if desired. A fee of Rs.100-00 prescribed to open a sealed cover.

Procedure to keep contents of a will confidential –
Will can be deposited in a sealed cover in office of the District Registrar. A fee of Rs.1000-00 prescribed to deposit will in a sealed cover. Depositor or authorized person (executor) can withdraw the sealed cover containing a will, if desires to do so. A Registration of Rs.200-00 prescribed.

Will– A testamentary document by which a person bequeaths his property to be effective on his death is a will. The property will devolve on the person in whose favour it is bequeathed after death of testator.

 

Condition of execute a will –

a) Any person above the age of 18 years and mentally sound may execute will, but will caused by fraud or coercion or by importunately will not be valid. Therefore a will must be executed voluntarily.
b) Parents or guardians cannot execute will on behalf of minors or lunatics.
c) Attestation by minimum two witnesses is necessary.
d) Scribe (deed writer / advocate) cannot be called witness. Two independent attesting witnesses other than the scribe or necessary.
e) Beneficiary under a will should not sign as attesting witness.
In order to avoid disputes in implementation of a will, description of property and the beneficiaries should be clearly be written without giving room for any doubt.

What are the transactions opposed to public policy?

What are the transactions opposed to public policy?

What are the transactions opposed to public policy?

Indian government has declared the following as opposed to public policy under Section 22A of Registration Act, 1908 namely –

(1) (i) Agreement to sell, sale, gift, exchange, mortgage, lease or assignment of land of which the occupancy right has been granted under Chapter III of the Karnataka Land Reforms Act, 1961 in contravention of the restrictions imposed under section 61 of the said act and the rules framed there under.
(ii) Agreement to sell, sale, gift, exchange or otherwise of any land in excess of the ceiling limit specified in section 63 or 64 of the Karnataka Land Reforms Act, 1961 in contravention of section 74 of the said act and the rules framed there under.
(iii) Agreement to sell, sale, lease, mortgage with possession or otherwise of any agricultural lands to a person or a family or a joint family who or which has an assured annual income of rupees Two lakhs and above from sources other than agriculture in contravention of section 79-A of the Karnataka Land Reforms Act, 1961 and the rules framed there under.
(iv) Agreement to sell, sale, lease, mortgage with possession or otherwise of any agricultural land to an educational, religious, charitable institution society, trust, company, association, other body of individuals or a co-operative Society other than the co-operative farming society in contravention of section 79-B of the Karnataka Land Reforms Act, 1961 subject to the exceptions and exemptions provided under section 109 of the said act and the rules framed there under.
(v) Agreement to sell, sale, gift, lease, mortgage with possession or otherwise of any agricultural land granted under the Karnataka Land Grant Rules, 1969 subject to restrictions on sale, transfer, and specific use imposed there under as per the provisions of the said Rules.
(2) One cannot possess land as owner, tenant or as mortgagee with possession in excess of 10 units. If a family consists of more than five members, such family may hold two units per head not exceeding 20 units.
A Class – Lands having facilities for assured irrigation from such Government Canals and Government Tanks as are capable of supplying water for growing two crops of paddy or one crop of sugarcane in a year.
B Class – (a) Lands having facilities for assured irrigation from such Government Canals and Government Tanks as are capable of supplying water for growing only one crop of paddy in a year.
(b) Lands irrigated by such lift irrigation projects constructed and maintained by the State Government as are capable of supplying water for growing two crops of paddy or one crop of sugarcane in a year.
C Class – (a) Lands irrigated from any Government sources of irrigation, including lift irrigation projects constructed and maintained by Government other than those coming under A Class and B Class.
(b) Lands on which paddy crop can be raised or areca crop is grown with the help of rain water.
(c) Lands irrigated by lifting water from a river or Government Canal or Government tank where the pumping installation or other device for lifting water is provided and maintained by the land owner.

What are the duties and liabilities of buyers and sellers while purchasing a property?

 What are the duties and liabilities of buyers and sellers while purchasing a property?

What are the duties and liabilities of buyers and sellers while purchasing a property?

These are the duties and liabilities of buyers and sellers –
Before sale property –
Liabilities of seller & Liabilities of purchaser

  • To inform defects in the property
  • To provide records of right
  • To execute sale deed  Payment of consideration
  • To pay of the liabilities on the property

Rights – 
Rights of seller & Rights of buyer
To get rent and profits  Right of encumbrance on consideration already paid
After completion of sale
Liabilities of seller  Liabilities of purchaser
To hand over possession  Liability on accidental or loss to the property
Information about right
To hand over records of rights after receipt of consideration  Duty to pay taxes and liabilities after taking possession of property
Rights of seller  Rights of buyer
If consideration is due encumbrance on property of such dues  Incremental value/profit on property
Though there are rights and duties the purchaser should carefully examine the following matters;

  • Original documents.
  •  How did the seller acquire the property.
  •  Encumbrance Certificate of the property for a minimum period of 15 years from Sub Registry Office to know if there are any encumbrances on the property to be purchased.
  •  Verify from the concerned court if there are any litigations on the property to be purchased.
  •  Verify if there are any litigations, objections in revenue, municipal offices about inheritance or any other matter.
  •  If seller is a power of attorney holder, it should be verified from the principal and if such power of attorney is genuine and whether it is still in force.
  •  It should be verified whether the transaction is opposed to public policy under Section 22A of the Registration Act, 1908. If so the document will not be registered.
  •  If the Property is a granted land to the member of scheduled caste and scheduled tribe, it should be verified if the transaction is in contravention of the terms and conditions of grant and whether permission of the Government is obtained for transfer.

How to get transfer of immovable property?

How to get transfer of immovable property?

How to get transfer of immovable property?

  1. If value of property under sale, exchange, lease, and mortgage is Rs.100 or more, deed relating to such transaction must be compulsorily registered (Sec.17 of Registration Act 1908).
  2. Gift deed, must be registered irrespective of the value of the property.
  3. After the deed is registered.

In areas where there is not city survey is not in operation, one has to apply along with copy of the deed to the concerned Corporation/ Municipal/panchyat office to effect transfer of khatha.

Immovable property is an immovable object, an item of property that cannot be moved without destroying or altering it – property that is fixed to the earth, such as land or a house. In the United States it is also commercially and legally known as real estate and in Britain as property.

How to obtain Certified Copy of registered document?

How to obtain Certified Copy of registered document?

How to obtain Certified Copy of registered document?

  • Any person may obtain certified copy of registered document relating to immovable property.
  • Certified copy of registered will may be obtained only by the testator only during his lifetime. Any person may get copy of a will after the death of the testator on production of death certificate.
  • Copies of registered deed of GPA and other documents relating to movables may be obtained by executant / claimant or agent, representative of such person only.
  • Stamp paper of Rs.10 is required to be produced along with the application and copying fee of Rs.3 for every page of Xerox copy or Rs.5 for every 100 words or part thereof is to be paid.

 

What are powers of attorney?

What are powers of attorney?

What are powers of attorney?

There are two kinds of Power of Attorney.
A. General Power of Attorney (GPA)
B. Special Power of Attorney (SPA)
(A) General Power of Attorney is executed by a person in favour of another to act on behalf of him generally. It may include management of property, Court matter/litigations, sale of mortgage of property or any other act.
(B) Special Power of Attorney is executed to do a particular act. Power of Attorney holder is answerable to the principal and liable to give accounts to him.

Special Power of Attorney authorizing the agent to present the document executed by the Principal before the Registering Officer concerned and admit the execution thereof, requires to be attested by the Sub Registrar/Registrar in case the Principal resides in India except in Jammu and Kashmir.

If the principal resides in Jammu and Kashmir, then it has to be attested by the Magistrate. And if the principal resides outside India, then the power shall be attested by Consul/vice-Consul/Notary Public/Magistrate.

What are the kinds of Power of Attorney?

What are the kinds of Power of Attorney?

What are the kinds of Power of Attorney?

There are two kinds of Power of Attorney.
A. General Power of Attorney (GPA)
B. Special Power of Attorney (SPA)
(A) General Power of Attorney is executed by a person in favour of another to act on behalf of him generally. It may include management of property, Court matter/litigations, sale of mortgage of property or any other act.
(B) Special Power of Attorney is executed to do a particular act. Power of Attorney holder is answerable to the principal and liable to give accounts to him.

Special Power of Attorney authorizing the agent to present the document executed by the Principal before the Registering Officer concerned and admit the execution thereof, requires to be attested by the Sub Registrar/Registrar in case the Principal resides in India except in Jammu and Kashmir. If the principal resides in Jammu and Kashmir, then it has to be attested by the Magistrate. And if the principal resides outside India, then the power shall be attested by Consul/vice-Consul/Notary Public/Magistrate. Power of Attorney holder is answerable to the principal and liable to give accounts to him

Does an agent under a power of attorney get the property transfered in his name through the said power of attorney?

 Does an agent under a power of attorney get the property transfered in his name through the said power of attorney?

Does an agent under a power of attorney get the property transfered in his name through the said power of attorney?

No. It is wrong to say that ownership is transferred by getting General Power of Attorney. Persons purchasing property must get the sale deed registered. This principle applies to other kinds of transactions also.

There are two kinds of Power of Attorney.
A. General Power of Attorney (GPA)
B. Special Power of Attorney (SPA)
(A) General Power of Attorney is executed by a person in favour of another to act on behalf of him generally. It may include management of property, Court matter/litigations, sale of mortgage of property or any other act.
(B) Special Power of Attorney is executed to do a particular act. Power of Attorney holder is answerable to the principal and liable to give accounts to him.

Special Power of Attorney authorizing the agent to present the document executed by the Principal before the Registering Officer concerned and admit the execution thereof, requires to be attested by the Sub Registrar/Registrar in case the Principal resides in India except in Jammu and Kashmir.

 

Who can execute a power of attorney?

Who can execute a power of attorney?

Who can execute a power of attorney?

A person who has attained majority may execute power of attorney in favour of another person who has attained majority including family members like brother, sister, father and mother to act on his behalf. If a power of attorney is executed to sell property in favour of relatives other than those mentioned above, 2 percent stamp duty shall be paid on market value of such property.

If a power of attorney is executed in favour of developers, Builders of apartment, 4 percent stamp duty shall be paid on market value of such property.

There are two kinds of Power of Attorney.
A. General Power of Attorney (GPA)
B. Special Power of Attorney (SPA)
(A) General Power of Attorney is executed by a person in favour of another to act on behalf of him generally. It may include management of property, Court matter/litigations, sale of mortgage of property or any other act.
(B) Special Power of Attorney is executed to do a particular act. Power of Attorney holder is answerable to the principal and liable to give accounts to him.

Where can I register my immovable property ?

Where can I register my immovable property ?

Where can I register my immovable property ?

Documents pertaining to immovable property shall be registered in the Sub-Registrar office in whose jurisdiction the property is situated
Or If you have any problem with the Sub-Registrar’s office please approach the District Registrar of your district.InBangalore Urban district still if you have problem in registration you can visit the Office of the Inspector General of Registration where your registration work pertaining to Bangalore Urban district will be attended.

Immovable property is an immovable object, an item of property that cannot be moved without destroying or altering it – property that is fixed to the earth, such as land or a house. In the United States it is also commercially and legally known as real estate and in Britain as property.

Property law is the area of law that governs the various forms of ownership and tenancy in realproperty (land as distinct from personal or movable possessions) and in personal property, within the common law legal system. In the civillaw system, there is a division between movable and immovable property.

Is it compulsory to register power of attorney attested in India by Magistrate or notary?

Is it compulsory to register power of attorney attested in India by Magistrate or notary?

Is it compulsory to register power of attorney attested in India by Magistrate or notary?

They need not be registered. But General Power of Attorney containing authority to present or admit execution of a document executed by the principle is not acceptable for such presentation or admission of execution unless they are attested or authenticated by a Sub Registrar.

There are two kinds of Power of Attorney.
A. General Power of Attorney (GPA)
B. Special Power of Attorney (SPA)
(A) General Power of Attorney is executed by a person in favour of another to act on behalf of him generally. It may include management of property, Court matter/litigations, sale of mortgage of property or any other act.
(B) Special Power of Attorney is executed to do a particular act. Power of Attorney holder is answerable to the principal and liable to give accounts to him.

Special Power of Attorney authorizing the agent to present the document executed by the Principal before the Registering Officer concerned and admit the execution thereof, requires to be attested by the Sub Registrar/Registrar in case the Principal resides in India except in Jammu and Kashmir.

What is meant by a Nil Encumbrance Certificate?

What is meant by a Nil Encumbrance Certificate?

What is meant by a Nil Encumbrance Certificate?

If no deeds of transactions are registered in respect of a property nil encumbrance certificate is issued in Form No.16. If Certificate is issued in this form, it means that there are no registered transactions / liabilities on the property for a given period of time unregistered transactions are not included in this certificate.

Property law is the area of law that governs the various forms of ownership and tenancy in realproperty (land as distinct from personal or movable possessions) and in personal property, within the common law legal system. In the civillaw system, there is a division between movable and immovable property.

Immovable property is an immovable object, an item of property that cannot be moved without destroying or altering it – property that is fixed to the earth, such as land or a house. In the United States it is also commercially and legally known as real estate and in Britain as property.

Any property that can be moved from one location to another. This term is in distinction with immovable property or immovables, such as land and buildings.

 

Who can execute Power of Attorney?

Who can execute Power of Attorney?

Who can execute Power of Attorney?

A person who has attained majority may execute power of attorney in favour of another person who has attained majority including family members like brother, sister, father and mother to act on his behalf.

If a power of attorney is executed to sell property in favour of relatives other than those mentioned above, 2 percent stamp duty shall be paid on market value of such property.

If a power of attorney is executed in favour of developers, Builders of apartment, 4 percent stamp duty shall be paid on market value of such property.

There are two kinds of Power of Attorney.
A. General Power of Attorney (GPA)
B. Special Power of Attorney (SPA)
(A) General Power of Attorney is executed by a person in favour of another to act on behalf of him generally. It may include management of property, Court matter/litigations, sale of mortgage of property or any other act.
(B) Special Power of Attorney is executed to do a particular act. Power of Attorney holder is answerable to the principal and liable to give accounts to him.

Does property get transferred by getting a General Power of Attorney from the person selling it? Can the agent become owner of property?

Does property get transferred by getting a General Power of Attorney from the person selling it? Can the agent become owner of property?

Does property get transferred by getting a General Power of Attorney from the person selling it? Can the agent become owner of property?

No. It is wrong to say that ownership is transferred by getting General Power of Attorney. Persons purchasing property must get the sale deed registered. This principle applies to other kinds of transactions also.

There are two kinds of Power of Attorney.
A. General Power of Attorney (GPA)
B. Special Power of Attorney (SPA)
(A) General Power of Attorney is executed by a person in favour of another to act on behalf of him generally. It may include management of property, Court matter/litigations, sale of mortgage of property or any other act.
(B) Special Power of Attorney is executed to do a particular act. Power of Attorney holder is answerable to the principal and liable to give accounts to him.

Special Power of Attorney authorizing the agent to present the document executed by the Principal before the Registering Officer concerned and admit the execution thereof, requires to be attested by the Sub Registrar/Registrar in case the Principal resides in India except in Jammu and Kashmir.

If the principal resides in Jammu and Kashmir, then it has to be attested by the Magistrate. And if the principal resides outside India, then the power shall be attested by Consul/vice-Consul/Notary Public/Magistrate.

What can be understood by Nil EC?

What can be understood by Nil EC?

What can be understood by Nil EC?

Nil EC stands for Nil Encumbrance Certificate. If no deeds of transactions are registered in respect of a property nil encumbrance certificate is issued in Form No.16. If Certificate is issued in this form, it means that there are no registered transactions / liabilities on the property for a given period of time unregistered transactions are not included in this certificate.

People shall be very careful in filling the application form for EC, if they give incomplete/inaccurate details, then they may get a wrong EC. Interested parties may approach the Sub Registrar and by paying statutory fee, can verify the records personally. EC cannot be taken as a sole criterion to buy a property or lend money. It is better to undertake comprehensive study as suggested in “property purchase precautions”.

Property law is the area of law that governs the various forms of ownership and tenancy in real property(land as distinct from personal or movable possessions) and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property.

What is a Patent?

What is a Patent?

What is a Patent?

Patent – A patent in an exclusive right granted by a country to the owner of an invention to make, use, manufacture and market the invention, provided the invention satisfies certain conditions stipulated in the law.

Exclusivity of right implies that no one else can make, use, manufacture or market the invention without the consent of the patent holder. This right is available only for a limited period of time. However, the use or exploitation of a patent may be affected by other laws of the country which has awarded the patent.

These laws may relate to health, safety, food, security etc. Further, existing patents in similar area may also come in the way. A patent in the law is a property right and hence, can be gifted, inherited, assigned, sold or licensed.

As the right is conferred by the State, it can be revoked by the State under very special circumstances even if the patent has been sold or licensed or manufactured or marketed in the meantime.

The patent right is territorial in nature and inventors/their assignees will have to file separate patent applications in countries of their interest, along with necessary fees, for obtaining patents in those countries.

What can be patented in India?

What can be patented in India?

What can be patented in India?

An invention relating either to a product or process that is new, involving inventive step and capable of industrial application can be patented. However, it must not fall into the categories of inventions that are non- patentable under section 3 and 4 of the Act.

A patent in an exclusive right granted by a country to the owner of an invention to make, use, manufacture and market the invention, provided the invention satisfies certain conditions stipulated in the law. Exclusivity of right implies that no one else can make, use, manufacture or market the invention without the consent of the patent holder.

This right is available only for a limited period of time. However, the use or exploitation of a patent may be affected by other laws of the country which has awarded the patent.

These laws may relate to health, safety, food, security etc. Further, existing patents in similar area may also come in the way. A patent in the law is a property right and hence, can be gifted, inherited, assigned, sold or licensed.

As the right is conferred by the State, it can be revoked by the State under very special circumstances even if the patent has been sold or licensed or manufactured or marketed in the meantime.

The patent right is territorial in nature and inventors/their assignees will have to file separate patent applications in countries of their interest, along with necessary fees, for obtaining patents in those countries.

Who can apply for a patent?

Who can apply for a patent?

Who can apply for a patent?

A patent application can be filed either by true and first inventor or his assignee, either alone or jointly with any other person. However, legal representative of any deceased person can also make an application for patent.

It is the inventor who has the right to apply for a patent for an invention. However, the right to apply for a patent can be transferred to another person – physically or legally (assignment). The applicant referred to in a patent application can, therefore, be one or more people or companies. The right to be mentioned as the inventor, on the other hand, can never be transferred.

For an employee who comes up with an invention that falls within the employer’s operational area, there are certain limitations to the inventor’s right to the invention. The limitations are dependent on how close the connection is between the employee’s work tasks and the invention.

If you are employed by a company and come up with an invention, you should find out what applies for your particular invention before you file a patent application.

How is invention defined in the Indian Patent Act which can qualify for grant of a patent?

How is invention defined in the Indian Patent Act which can qualify for grant of a patent?

How is invention defined in the Indian Patent Act which can qualify for grant of a patent?

An invention means a new product or process involving an inventive step and capable of industrial application.

An Innovation means: The successful exploitation of new ideas in the form of a useful machinery or process, by any person, using own intellect is called as innovation.

Every innovation may not be patentable invention but every invention is an innovation. All the inventions are the innovations and are patentable, but all the innovations are not the patentable inventions

Capable of Industrial application means that the invention is capable of being made or used in an industry
However, inventions claiming substance intended for use, or capable of being used, as food or as medicine or drug or relating to substances prepared or produced by chemical processes (including alloys, optical glass, semiconductors and inter-metallic compounds) are not patentable. Only process claims are allowed in such cases.
Meaning of chemical process would also include the biochemical, biotechnological and microbiological process.

What are the conditions to be satisfied by an invention to be patentable?

What are the conditions to be satisfied by an invention to be patentable?

What are the conditions to be satisfied by an invention to be patentable?

Following three conditions to be satisfied by an invention to be patentable –

Novelty – An invention will be considered novel if it does not form a part of the global state of the art. Information appearing in magazines, technical journals, books, newspapers etc. constitute the state of the art. Oral description of the invention in a seminar/conference can also spoil novelty. Novelty is assessed in a global context.

An invention will cease to be novel if it has been disclosed in the public through any type of publications anywhere in the world before filing a patent application in respect of the invention. Prior use of the invention in the country of interest before the filing date can also destroy the novelty. Novelty is determined through extensive literature and patent searches.

It should be realized that patent search is essential and critical for ascertaining novelty as most of the information reported in patent documents does not get published any where else.

Inventiveness (Non-obviousness) – A patent application involves an inventive step if the proposed invention is not obvious to a person skilled in the art i.e., skilled in the subject matter of the patent application.

The prior art should not point towards the invention implying that the practitioner of the subject matter could not have thought about the invention prior to filing of the patent application. Inventiveness cannot be decided on the material contained in unpublished patents. The complexity or the simplicity of an inventive step does not have any bearing on the grant of a patent.

In other words a very simple invention can qualify for a patent. If there is an inventive step between the proposed patent and the prior art at that point of time, then an invention has taken place. A mere ‘scintilla’ of invention is sufficient to found a valid patent.

Usefulness – An invention must possess utility for the grant of patent No valid patent can be granted for an invention devoid of