LEGAL TRAIN

SEBI - Assistant Manager (Legal) Exam 2020 - Syllabus

2020-06-08T22:02:00.002+05:30

SYLLABUS FOR SEBI ASSISTANT MANAGER - LEGAL

PRELIMS (Phase I)

2 papers:

Paper I: (Maximum Marks: 100, Minutes: 60 M, Cut off: 30%)

Multiple choice questions on the subjects viz.

a. General Awareness (including some questions related to financial sector of easy to moderate difficulty level)

b. English;

c. Quantitative Aptitude;

d. Test of Reasoning.

General Awareness

National & International current affairs
Budget
Awards & Honours
Important Financial & Economic News
Important Days
International & National Organizations
Sports
Books and Authors
Science, inventions & discoveries
Countries & Capitals etc

English Language

Sentence Rearrangement
Reading Comprehension
Fill in the Blanks
Passages
Synonyms
Idioms & Phrases etc.
Error Spoting

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Quantitative Aptitude

Inequalities
Data interpretations
Number Series
Approximation and Simplification
Data Sufficiency
HCF and LCM
Profit and Loss
SI & CI
Problem on Ages
Work and Time
Speed Distance and Time
Probability, Permutation and Combination
Mensuration
Average, Ratio and Proportion etc.

Reasoning

Puzzles
Seating arrangements
Direction Sense
Blood Relations
Syllogisms
Order and Ranking
Coding-Decoding
Machine Input-Output
Inequalities
Alpha-Numeric-Symbol Series
Data Sufficiency
Number System and Conversions
Logical Reasoning etc.

Paper II: Legal (Maximum Marks: 100, Minutes: 40 M, Cut off: 40%)

Constitution of India – Preamble, Part I, Part III, Part IV, Part IVA, Part V, Part VI, Part VIII, Part IXA, Part IXB, Part XI.
Law of Contracts – Indian Contract Act, 1872 (Chapters I to VI), Specific Relief Act, 1963.
Criminal Law – Indian Penal Code, 1860 (Chapters I, II, III, IV, V, VA, VI, IX, XVII); Code of Criminal Procedure, 1973.
Law of Evidence – Indian Evidence Act, 1872.
Code of Civil Procedure, 1908 – Part I, Part II.
Administrative Law and Principles of Natural Justice.
Jurisprudence and Interpretation of Statutes
Important Latin terms and maxims
Law of Torts and Consumer Protection Act, 2019
Arbitration and Conciliation Act, 1996 – Part I
Transfer of Property Act, 1882 – Chapter III, Chapter IV, Chapter V.
Companies Act, 2013 – Chapter I, Chapter II, Chapter III, Chapter IV, Chapter V, Chapter VII, Chapter VIII, Chapter IX, Chapter X, Chapter XI, Chapter XII, Chapter XIII, Chapter XV, Chapter XVI.
Securities Laws – SEBI Act, 1992, SC(R) Act, 1956, Depositories Act, 1996.

Aggregate cut off for shortlisting to next phase of exam: 40% along with individual cut offs of respective papers.

Phase I shortlisting will be done for phase II not for calculating merit. So, get cut off for reaching phase II.

There shall be 1/4th negative marking in both the papers of phase I

Mains (Phase II): (All theory writing)

Paper I: English writing skills syllabus:

The paper on English shall be framed in a manner to assess the writing skills including expression and understanding of the topic including precis writing/ essay writing/ comprehension

Paper II: Legal:

Constitution of India – Preamble, Part I, Part III, Part IV, Part IVA, Part V, Part VI, Part VIII, Part IXA, Part IXB, Part XI, Part XII, Part XIII, Part XIV, Part XIVA, Part XX.
Law of Contracts – Indian Contract Act, 1872 (Chapters VIII to X), Indian Partnership Act, 1932, Specific Relief Act, 1963.
Criminal Law – Indian Penal Code, 1860 (Chapters I, II, III, IV, V, VA, VI, IX, XVII, XXI, XXII, XXIII); Code of Criminal Procedure, 1973.
Law of Evidence – Indian Evidence Act, 1872.
Code of Civil Procedure, 1908 – Part I, Part II, Part III, Part IV, Part V, Part VII, Schedule I.
Administrative Law and Principles of Natural Justice
Jurisprudence and Interpretation of Statutes.
Important Latin terms and maxims
Law of Torts and Consumer Protection Act, 2019
Arbitration and Conciliation Act, 1996 – Part I, Part III, Part IV.
Transfer of Property Act, 1882 – Chapter III, Chapter IV, Chapter V.
Law of Trusts – Parties to a Trust Deed and Duties of Trustees.
Corporate Law – Companies Act, 2013 (Chapter I, Chapter II, Chapter III, Chapter IV, Chapter V, Chapter VII, Chapter VIII, Chapter IX, Chapter X, Chapter XI, Chapter XII, Chapter XIII, Chapter XV, Chapter XVI, Chapter XXVII, Chapter XXVIII, Chapter XXIX); Limited Liability Partnership Act, 2008; Insolvency and Bankruptcy Code, 2016 (Part I, Part II)
Taxation – General principles, Capital Gains Tax, Securities Transaction Tax.
Securities Laws – SEBI Act, 1992, SC(R) Act, 1956, Depositories Act, 1996.

Latest Amendment to Insolvency & Bankruptcy Code, 2016

2020-06-07T02:52:00.021+05:30

Relief to Corporate Debtors against initiation of corporate insolvency resolution proceedings (“CIRP”) under Insolvency & Bankruptcy Code owing to Coronavirus Crises

The most awaited Insolvency & Bankruptcy Code (Amendment) Ordinance, 2020[1] was passed by Ministry of Law & Justice on 5^th June 2020. It has inserted a new Section 10 A[2] and sub-section (3) to section 66[3] to the code.

Under the amendment, a relief has been accorded to corporate debtors for any debts arising subsequent to March 25^th, 2020. No corporate insolvency resolution proceedings (“CIRP”) can be initiated for any default of debt arising since this date till at least for a period of six months or any period not exceeding one year, as may be notified. The defaults arisen subsequent to the imposition of national lockdown till such date as may be notified are exempted from initiation of CIRP. Therefore, for defaults within such period, section. 7, 9 and 10 of the code stands suspended.

Additionally, no application shall ever be filed for initiation of CIRP for any default arising during this period.

This gives a relief to corporates defaulting purely out of declaration of country wide lockdown owing to Coronavirus crisis. Majority of the corporates are affected; for example, the Airlines companies would have turned insolvent had the relaxations were not eased out as on today and had the complete lockdown persisted for longer period. It is quite natural for corporates to commit defaults in such situation, when the business has been completely stopped or not running into its full swing. However, there are chances of growth and recovery post lockdown. Had the draconian provisions of IBC were applicable on defaults arising during coronavirus crisis, the corporates would have lost the chance of making good the default upon attaining subsequent normalcy. For basic contracts also the benefit of ‘force majure’ clause was widely discussed and acknowledged, considering that this is indeed a situation of ‘force majure’ and this amendment was the need of the hour to extend the benefit of ‘force majure’ to corporates for defaults arising during the aforesaid period, in order to give them a chance to recover post corona crisis.

It is to be noted that earlier the threshold limit for initiation of CIRP under IBC was increased from INR 1 lakh to INR 1 Crore. This move, although was taken under current crisis, however, would stand tall subsequently. This would further boost the process of speedy resolutions of CIRPs.

However, the amendment does not give relief against defaults arising prior to the imposition of national lockdown. Against such defaults, the CIRP can even be initiated today or any time.

#insolvency #bankruptcy #corporate #debtors #IBC #Insolvencycode #coronavirus #covid-19 #forcemajure #lockdown #legaltrain

[1] https://ibbi.gov.in//uploads/legalframwork/741059f0d8777f311ec76332ced1e9cf.pdf

[2] Notwithstanding anything contained in sections 7, 9 and 10, no application for initiation of corporate insolvency resolution process of a corporate debtor shall be filed, for any default arising on or after 25th March, 2020 for a period of six months or such further period, not exceeding one year from such date, as may be notified in this behalf:

Provided that no application shall ever be filed for initiation of corporate insolvency resolution process of a corporate debtor for the said default occurring during the said period."

Explanation.-For the removal of doubts, it is hereby clarified that the provisions of this section shall not apply to any default committed under the said sections before 25th March, 2020.

[3] (3) Notwithstanding anything contained in this section, no application shall be filed by a resolution professional under sub-section (2), in respect of such default against which initiation of corporate insolvency resolution process is suspended as per section 10 A

International Trade Today

2020-05-30T20:37:00.004+05:30

International Trade in 2020

-Guest post by Ecofin

Imagine a situation where we know about i-phone, but we cannot buy it nor we can import it. Imagine a situation where production of rice in our country is in excess but 30% of the total production just going into waste!!!! And the same output we cannot even export it. I will name this situation “a world without International Trade”. Imagine 2020 without International Trade!! Oh! We are already here, thanks to Covid-19.

What is International Trade?

In simple words, International Trade is exchange of goods and services as well as resources between countries. International Trade has more complexity compared to Internal Trade, as the former involves exchange of currencies, diversification in customer segment, differences in legal system, restrictions in the form of taxes, regulations, trade barriers, restraint to movements of specified goods and services and issues related to shipping and documentations.

International Trade has its own benefits and disadvantages. Few of them are as follows:

Benefits of International Trade

Export of Goods and resources helps in reducing unemployment and improves standard of living;
Due to increase in competition from foreign companies, domestic industries are compelled to improve quality of the goods. It further improves domestic business practices in order to bring them at par with the foreign companies;
Consumers get wide variety of goods and services at competitive prices, which increase the consumer surplus;
Increase in world output;
Stimulus to economic efficiency, contributes to economic growth and rise in income;
Brings revenue to Government in the form of duties which can be utilised for the welfare of people;
Gives opportunities for countries to earn out of and get rid of excessive surplus of resources. For example, Arab nations, rich in oil, has run out of storage space for excessive oil, the supply of which has come to a halt after the barriers were imposed on international borders amidst lockdown due to Coronavirus crisis around the globe.

Disadvantages of International Trade

Threat to unskilled labor, due to utilisation of advanced technology;
Each nation focuses on exports rather than imports in order to improve their balance of payment;
Inter-dependence on developed nations impair economic autonomy (self-rule). Such reliance often leads to exploitation and loss of cultural identity. Because of such dependence a country may try to intermeddle between the sovereign and internal matters of the state. For example, China and United States, has time and again suggested to mediate in the border-dispute between India and Pakistan;
Excessive exports cause shortages of essentials item such as rise in price of onion in 2014;
Trade rivalry may result in distortion of harmonious relationships among nations.

Due to scarcity of resources, it is natural for each nation to engage in international trade. It is true that fair competition doesn’t always exist and international trade also brings sever distortion to many domestic companies and industries. Therefore, individuals and organization continue to pressurize policymakers and government to restrict imports and/or to boost up exports. This is undertaken through trade policy measures that a country adopts to protect their domestic industries.

Tariffs, also known as import duty or custom duty. It is basically a form of tax that country charges on goods and services which are imported or exported. It is a financial charge in the form of a tax, which is imposed at the border on goods moving from one custom territory to another.

There are two types of Tariff measures, namely, Tariffs and Non-Tariffs Measures.

Tariffs Measures: Tariffs are mostly visible and universally used as trade measure that determine market access for goods. Tariffs are aimed at changing the relative prices of imported goods to the price of domestic substitute. The main goal of raising tariffs is to increase revenue to the government and to support domestic industries. Example, Specific Tariff, Ad-valorem tariff, Tariff Rate Quota, MFN Tariff, Bound Tariff, anti-dumping duties, etc.

Non-Tariffs Measure: On the other hand, non-tariff measures are invisible tariff. NTM which have come into greater prominence than the conventional tariffs barriers. NTM comprise all types of barriers which results in alteration of regulations, trade policy, and reduction in quantities traded or price or both. Example, Import Quota, Government Procurement Policy, Rules of Origin, Restriction on Post-Sales Services, Administrative Procedures, Financial restrictions, embargoes etc.

Evolution of International Trade:

In 17^th century, when the work was manualized, the output was comparatively less. After Industrial Revolution, there was excess of production of goods. European traders were worried about the inventory they were holding. Then famous Economist Adam smith came up with his theory of Absolute Advantage which shows that each country has expertise or resources for production of some or the other commodity and their production exceeds the domestic demands. Thus, they can export the excess production and import the commodity in which it has absolute disadvantage. So that’s how international trade evolved.

Today, we enriched ourselves so much because of International trade however, due to unfair Non-Tarriffs measures, we could not achieve our main objective and this failure is further substantiated with the rise of Coronavirus. Now, international trade seems like a distant dream as nations around the globe have closed their borders. Only essential commodities like Hydroxychloroquine and ventilators will be exchanged. Indian PM Narendra Modi, also emphasized on the concept of ‘go vocal for local’.

PM Cares Fund under CSR Activity

2020-05-29T23:13:00.005+05:30

Broadening the scope of CSR - Inclusion of 'PM Cares Fund' as CSR activity

The fundamental concept behind ‘Corporate Social Responsibility’ (hereinafter referred to as “CSR”) is to make contribution towards growth and development of the society. Because as the society prospers, so will the opportunities for businesses.

Corporates are known to utilise resources and skills of the society in order to generate upscale profits. Thus, it becomes responsibility of these corporates to compensate in lieu of resources they are consuming for enriching their wealth. The time to return back to the roots.

Thus, those companies were mandatorily required to make a contribution of 2% of average net profit of preceding three years towards CSR activities whose, in any financial year[1],

Net worth equals or greater than INR 500 Crore or more; or
Turnover equals or greater than INR 1000 Crores or more; or
Net profit equals or greater than INR 5 Crore;

CSR contribution to be made for any activities resulting into

Eradication of hunger and poverty;
Promotion of education;
Promotion of gender equality and empowerment of woman;
Reduction of child mortality;
Improvement in maternal health;
Eradication of human immunodeficiency virus, acquired immune deficiency syndrome, malaria and other diseases;
Environmental sustainability;
Enhancement of vocational skills, social business projects;
Contribution to PM’s National Relief Fund or any other fund set by CG or SG for socio-economic development;
Relief and funds for the welfare of scheduled castes, scheduled tribes, other backward classes, minorities and woman and other matters as may be prescribed.

The concept of CSR is in the news recently because of the amendment made to the provisions relating to CSR. Prime Minister’s Office (PMO), the Ministry of Corporate Affairs swiftly issued a general circular[2] wherein, Sub-section (1) to Section 467 of the Companies Act, 2013 amended to include the words ‘Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund)’ after the words 'Prime Minister's National Relief Fund' in item (viii) of the Schedule VII[3].

Thus, the scope of activities for CSR contribution has been widened to now include ‘PM Cares Fund’ as well. Earlier, only ‘PM’s National Relief Fund’ was included in the activities for CSR Contribution.

This amendment has a retrospective effect and deem have come into effect on 28^th March 2020.

The donations made by big corporates earlier towards ‘PM cares’ can now be considered a contribution towards Corporate Social Responsibility (CSR). Also, the contribution is 100% exempted from taxes.[4] Thus, gives ample scope for corporates to avail double benefit of tax exemption under Income Tax Act, 1961 as well as the benefit of CSR compliance.

Non-profit organizations that are involved in societal empowerment and public service, which are solely dependent upon ‘CSR Contribution’, may get a setback this time as almost all the corporates are making contribution towards ‘PM Cares’ and would definitively choose to become a beneficiary of the amendment, considering the double benefit it can offer. However, the amount of contribution made by company should be made public.

[1] Section 135, Companies Act, 2013

[2] http://www.mca.gov.in/Ministry/pdf/Covid_23032020.pdf

[3] SCHEDULE VII (See Section 135)

Activities which may be included by companies in their Corporate Social Responsibility Policies Activities relating to:—

(i) Eradicating hunger, poverty and malnutrition, promoting health care including preventinve health care and sanitation including contribution to the Swach Bharat Kosh set-up by the Central Government for the promotion of sanitation and making available safe drinking water.

(ii) promoting education, including special education and employment enhancing vocation skills especially among children, women, elderly and the differently abled and livelihood enhancement projects.

(iii) promoting gender equality, empowering women, setting up homes and hostels for women and orphans; setting up old age homes, day care centres and such other facilities for senior citizens and measures for reducing inequalities faced by socially and economically backward groups.

(iv) ensuring environmental sustainability, ecological balance, protection of flora and fauna, animal welfare, agroforestry, conservation of natural resources and maintaining quality of soil, air and water including contribution to the Clean Ganga Fund set-up by the Central Government for rejuvenation of river Ganga.

(v) protection of national heritage, art and culture including restoration of buildings and sites of historical importance and works of art; setting up public libraries; promotion and development of traditional art and handicrafts;

(vi) measures for the benefit of armed forces veterans, war widows and their dependents;

(vii) training to promote rural sports, nationally recognised sports, paralympic sports and Olympic sports

(viii) contribution to the Prime Minister's National Relief Fund or any other fund set up by the Central Government for socio-economic development and relief and welfare of the Scheduled Caste, the Scheduled Tribes, other backward classes, minorities and women;

(ix) Contribution to incubators funded by Central Government or State Government or any agency or Public Sector Undertaking of Central Government or State Government, and contributions to public funded Universities, Indian Institute of Technology (IITs), National Laboratories and Autonomous Bodies (established under the auspices of Indian Council of Agricultural Research (ICAR), Indian Council of Medical Research (ICMR), Council of Scientific and Industrial Research (CSIR), Department of Atomic Energy (DAE), Defence Research and Development Organisation (DRDO), Department of Science and Technology (DST), Ministry of Electronics and Information Technology) engaged in conducting research in science, technology, engineering and medicine aimed at promoting Sustainable Development Goals (SDGs).

(x) rural development projects

(xi) slum area development.

Explanation.- For the purposes of this item, the term `slum area' shall mean any area declared as such by the Central Government or any State Government or any other competent authority under any law for the time being in force.

(xii) disaster management, including relief, rehabilitation and reconstruction activities.

[4] Amendment to Section 80G, Income Tax Act by Taxation and other Laws (Relaxation of Certain Provisions) Ordinance, 2020, https://www.taxcorner.co.in/2020/04/govt-notifies-taxation-and-other-laws-relaxation-of-certain-provisions-ordinance-2020.html

CS or LLB

2020-05-24T17:39:00.007+05:30

Company Secretary or lawyer. What should you practice as profession?

Pursued both, i.e. Bachelor of Legislative Laws (LLB) and Company Secretary (CS), and now confused what should be professed as profession in India? As both of these degrees are profession and two professions cannot be practiced at once in India. Here is a perspective which may help you out in making a better choice for yourself.

It’s completely your own interest that comes into deciding whether you want to practice as a lawyer or CS.

Although, ‘CS degree’ is considered to be equivalent to ‘Post-Graduation’ degree and ‘LLB’ still just a ‘Graduation’. However, both are professionals.

The role of Company Secretary is limited to compliance. However, the role of lawyer knows no bound. Role of a company secretary is defined and limited. While, a lawyer, on the other hand, can practice in courts as an Advocate, can also appear before NCLT and work as a compliance officer or as a corporate lawyer in law firms or as in-house counsel for companies.

For lawyers, there are different, challenging and emerging aspects. New roles and responsibilities are coming into pictures with changing times. Like lawyer may also work as a law enforcement response team specialist (LERT Specialist), which is one of the latest aspects of this profession and help companies in complying with regulations relating to data protection and investigation of offences. Companies mostly dealing with protection of data like Tiktok, Facebook, Uber etc. have this role for lawyers. But such different and challenging profiles are not available for people practicing only as a Company Secretary.

The role of company secretary is classic, indispensable, necessary and routine. While, responsibilities and role of lawyers keeps changing with every job profile. Being a lawyer is like taking risks and adapting to new challenges every day. While, company secretary will become expertise in his area in just one year but then things starts becoming routine, because there is not much of change involves in work profile.

Now it is up to you, what you enjoy the most, new challenges and changes or expertise and routine.

All the best.

Originally published by me on Quora: Apoorva Sharma's answer to I'm about to become a Company Secretary and a lawyer. Shall I practice as a CS or a lawyer?

Latest amendment to the Negotiable Instruments Act. (2018)

2018-07-31T12:59:00.001+05:30

Negotiable Instruments (Amendment) Act, 2018.

A bill to amend the Negotiable Instruments Act (Hereinafter referred to as “Act”) was recently passed by both the houses of parliament resulting into an amendment to the existing act. This new amendment has been brought into effect in order to pave the way for speedy disposal of cases pending due to unavoidable cheque bounce consequences.

The provision of awarding interim compensation by the drawer of the cheque to the complainant has been introduced by bringing in a new section 143A in the Act. The interim compensation would be up to the maximumof 20% of the value of the cheque, as per the discretion of the court, in cases wherein the accused does not plead guilty in summary trial or summons cases. The interim compensation is required to be paid within 60 days of the order. In case of acquittal of accused after trial, the interim compensation has to be returned to the complainant with interest within 60 days from the date of such acquittal.

Section 143 of the Act, provides that the cases relating to cheque bounce are dealt with as per the summary procedure mentioned under Order XXXVII of the Code of Civil Procedure (Hereinafter referred to as “CPC”) in case of civil action and under Section 262 to 265 of the Criminal Procedure Code (“CrPc”) in case of criminal action.

The same provisions will be applicable in case an appeal is preferred by the drawer against his conviction in cheque bounce cases, wherein the he will be required to deposit minimum of 20% of the fine or compensation awarded by the Trial Court. It shall be deposited within sixty days from the date of the order.

The new amendment would reduce the pendency of cases to a great extent. As fraudulent drawers will think twice before involving themselves into cumbersome procedure of trial as they would be required to deposit 20% of the cheque amount for obtaining leave to defend in civil matters and after framing of charges in criminal actions. People will think twice.

Earlier, trial was sought because of awareness about long pendency of such cases thereby to avail benefit of loopholes to run scot free. Now, a lock-in of 20% amount, on the part of those seeking trial, will be beneficial to a great extent and some of them would prefer to pay the whole amount instead of going for the impending trial after paying the interim compensation in addition to all other legal expenses, which may far exceed their present liability.

Now, the fraudulent cases would be reduced to a great extent and only genuine concerns will be ready and willing to ask for the proper trial. This amendment will be helpful in quick disposal of cheque bounce related cases.

Procedure for payment of Stamp Duty on Issuance of Share Certificate

2018-06-30T11:19:00.004+05:30

The stamp duty on issue of share certificate will be paid through a detailed procedure prescribed. First of all, the application needs to be filed at the Website of Stock Holding Corporation of India Limited (“SHCIL”), i.e.

Subsequently, the application will be pending scrutiny of the Department of Revenue (“DoR”), Government of India. If there was any delay in filing of the stamp duty then the hearing will be conducted and the applicant or their authorized representative is required to attend in person for specifying the reason for delay and also for following further directions;
If no delay was occasioned during filing the application, then it will be scrutinized. Any defect found will be requested to be cured, on website itself;
Once cured, the application will be approved, and the challan will be generated. The payment can be made immediately on generation of challan;
On payment, the acknowledgment receipt will be generated, that needs to be personally submitted to the SHCIL;
From SHCIL, the stamp paper needs to be purchased, the scanned copy of which needs to be uploaded on SHCIL website and the original is required to be submitted personally to the DoR.
Subsequently, the certificate will be issue by DoR. The certificate of Stamp Duty payment.

Any queries pertaining to payment of stamp duty can be emailed to sdmhq4divcomm.delhi.nic.in

PROCEDURE FOR APPOINTMENT OF A NEW AUDITOR, FROM RESIGNATION BEFORE THEIR TERM EXPIRES.

2018-06-25T22:31:00.001+05:30

PROCEDURE FOR APPOINTMENT OF A NEW AUDITOR, FROM RESIGNATION BEFORE THEIR TERM EXPIRES.

From the perspective of the company, as per Section 139 (8)(i) The procedure for appointment of auditors in case of a casual vacancy, which may arise due to resignation of the auditor, before the expiry of their tenure, is filed up by the Board of Directors within 30 days. It should also be approved by the company at a General Meeting convened within 3 months of the recommendation of the Board and he shall hold office till the conclusion of the next annual general meeting.

Procedure:

Obtain resignation letter with FORM ADT-3 from resigning auditor;
Give notice for holding Board Meeting and calling it for acceptance of resignation of director;
Send letter to new auditor seeking consent and certificate from new auditor for eligibility of appointment;
Obtain consent letter and certification from auditor.
Call Board meeting for filling up casual vacancy filing up the casual vacancy within 30 days from the date on which the casual vacancy arose.
Approve the notice for EGM within 90 days of appointment of the Board of Director.
Hold EGM and pass ordinary resolution for approval of auditor appointment.
File an e-form ADT-1 for appointment of new Auditor within 15 days of appointment of Auditor in an extra-ordinary General Meeting.

According to Section 140(2) of the Companies Act, 2013, the auditor who has resigned from the company shall file within a period of thirty days from the date of resignation, a statement in the prescribed form (ADT-3) with the company and the Registrar, And as per Section 140(3) of the Companies Act, 2013, if the auditor does not comply with sub-section (2), he or it shall be punishable with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees.

The Auditor shall:

· Draft the resignation letter along with mention the reason of resigning and the date of resigning.

· Intimate of his resignation to the Company within 30 days of resignation.

· File an e-form ADT-3 along with detailed resignation letter with the Registrar of Company within 30 days of his resignation.

Procedure for Non-Compliance in holding Board Meetings

2018-06-25T01:07:00.004+05:30

Under the Companies Act, 2013, no punishment is prescribed for non-compliance with Section 173(1) in holding at least four Board Meetings in a year, in such a manner that not more than 120 days shall intervene between two consecutive meetings of the Board. Since, no express provision has been laid down, to be followed in case of such failure, the inclusive and residuary provision of Section 450, Companies Act, 2013 shall be deem to be applicable.

Section 450 clearly states that:

“In case of any default or failure for which no express provision is stated elsewhere in the Act, the company, or every officer in default shall be punishable with fine which may extend to ten thousand rupees, and where a contravention is a continuing one, with a further fine which may extend to one thousand rupees for every day after the first during which the contravention continues”.

The detailed procedure for the payment of such punishment, levied under Section 441, is channelized through the route of compounding. Section 441 of the Companies Act, 2013 provides a detailed procedure for compounding of any offence, the penalty for which is fine only and the fine does not exceed Rs.5 Lakh, and it does not pertain to contravention of offences committed before three years of making such application.

There are certain offences, the list of which is provided under the section itself, which can be compounded by Tribunal or by the regional directors. But there are other offences as well which can be compounded, other than mentioned in the list. Thus, the failure to comply with Section 173(1) can also be compounded under Section 441 because the section is not mentioned in the list of offences which cannot be compounded. Moreover, the offences, the punishment for which does not exceed Rs. 5 Lakh, can be compounded only by the Regional Director or any officer authorized by the Central Government. But every application for compounding shall be addressed to the Registrar and who shall decide upon forwarding of such application, along with his comments, to either Tribunal or Regional Director, or any other person authorized by the Central Government, as the case may be. Tribunal or Regional Director or any other person so authorized then adjudicate upon the amount to be paid as penalty, which is then ultimately is required to be paid to the Central Government.

Short Glimpse of Procedure stated above:-

1). File a compounding application with the Registrar; Submitted electronically in e-form GNL-1.

2). Registrar shall forward the application, to either Tribunal or Regional Director (if the fine for the offence does not exceed Rs.5 Lakh, on such calculation), with their comments;

3). Tribunal or Regional Director or any other person authorized by the Central Government decides the amount to be paid as penalty;

4).Ultimately the penalty is to be paid to the Central Government.

Failure in complying with the order of the Tribunal or Regional Director, or any other authorized by the Central Government would invite an additional imprisonment for a term which may extend to six months or with fine not exceeding one lakh, or with both.

In case of Compounding of offence, the detailed application should contain the following details:-

1. Detailed application; Submitted electronically in e-form GNL-1, in which provide the following details:

General Public Profile and history of company containing details such as name, date of incorporation, main objects of company;
Facts of the case mentioning nature of offence and period of default;
Whether the offence is made good, if yes then how and when (i.e. the date where applicable;
Prayer to Compounding authority for Compounding of offence.

2. The compounding fees shall be paid in appropriate account by way of payment through challan.

Proceedings against Corporate Guarantor - An approach under Insolvency & Bankruptcy Code, 2016

2018-06-25T00:55:00.002+05:30

Under Section 128 of the Indian Contract Act, 1882 (Hereinafter referred to as “Act”), liability of the Guarantor is co-extensive with the liability of Principal Debtor. The principle of co-extensiveness suggests that the liability of one is subject to the liability of the other. This equips the Creditor with an option of recovering the amount from Guarantors, without first exhausting all available legal remedies against the Principal Debtor. Thus, the proceedings against Guarantor can be initiated parallel with proceeding against the Principal Debtor. The principle of co-extensiveness can also be inferred from Section 134, of the Act, which states that the discharge of Principal Debtor absolves the liability of Guarantor as well. Thus, If a debtor is liable, so is guarantor, but if a debtor is discharged, the liability of guarantor also stands discharged. This doctrine of co-extensiveness has again reiterated by Hon’ble Mahesh Chandra Tripathi, J. recently in the landmark Judgment of Sanjeev Shriya v. State Bank of India & Another (Allahabad High Court) (Civil Writ Petition No. 30285 of 2017) delivered on 06.09.2017. Though, the Judgment caters to corporate guarantee, but the basic principal of Contract Act remains applicable to the personal or individual Guarantors to Corporate Debtors as well.

The brief facts of the case are such that State Bank of India (“SBI”) had filed for the recovery of loan amount of Rs. 72 Crore against Lohia Machines Limited (“LML”) and three of its Guarantors. Meanwhile, LML applied to NCLT (hereinafter referred to as “Tribunal”) under Section 10 of the Insolvency and Bankruptcy code, 2016 (hereinafter referred to as “Code”) for the initiation of the Insolvency Resolution Process and also for the imposition of moratorium under section 14 of the Code. The Tribunal admitted the application and simultaneously imposed the moratorium as well. The insolvency resolution professional was appointed subsequently.

The Debt Recovery Tribunal (hereinafter referred to as “DRT”) in pursuance of the order from the Tribunal stayed the proceeding against LML but continued hearing the proceedings against the three ex-directors for enforcement of guarantees. DRT even directed them to submit the list of assets held by them. DRT took such step after taking into consideration the fact that there is no restriction in taking action against the corporate debtor under the provisions of the Code. DRT even criticized the act of filing application to NCLT as a mere counter blast and as just a step towards delaying the proceedings. Against such order of the Tribunal, the directors filed a writ petition before the Allahabad High Court.

Accordingly, the issue that arose in the present case was whether financial creditor can proceed against guarantor under DRT when NCLT was already ceased of the matter and had declared moratorium under Section 14 of the “Code”.

In this case it was held that once a moratorium has been imposed under Section 14 of the Insolvency & Bankruptcy Code, 2016, no action can be instituted against Corporate Debtor, till either the expiry of resolution procedure (under Section 31 of the Code) or till the proposal for finalization of liquidation [under Section 33(1)] or till the expiry of 180 days, whichever is earlier, subject to further extension of up to 90 days being granted by the tribunal and because of doctrine of co-extensiveness of liability, the proceedings stands stayed against Corporate Guarantor as well.

The reasoning behind the order was that Section 60 of the Code stipulates that even for corporate debtors and personal guarantors during the insolvency resolution process, the adjudicating authority shall be NCLT. Thus, the insolvency resolution and bankruptcy process against personal guarantor of corporate debtor also needs to be filed in NCLT itself. Also held that liability of Principal debtor and guarantor is co-extensive and for the same cause of action two simultaneous proceedings in DRT as well as NCLT cannot proceed. Since, NCLT is already ceased with the insolvency resolution process; there is no point in proceeding against the guarantors under the DRT. The principal protects the interest of guarantor. Since, the proceedings cannot be filed against a corporate debtor and so it cannot be filed against corporate guarantor as well because of co-extensiveness of the liability. The purpose behind such ruling is that the multiplicity of proceedings should be eliminated at all cost.

The way forward

The Court in this case has failed to take into consideration the scope of actions to be taken against Guarantors when the Principal Debtor is either an individual or a firm. Part III of the “Code” provides for insolvencies relating to individuals and firm and DRT shall be the sole adjudicating authority in such cases, unlike corporate insolvency wherein NCLT stands tall. This chapter has not come into effect but the judgment is silent about how the personal guarantor would be liable once the provisions are enforced and whether the moratorium will likely be applicable on them as well? But, the basic principle of the Contract Act of co-extensiveness of liability should be applicable in such cases as well. A clear and express explanation on the point is awaited.

TRADE SECRETS IN IPR THROUGH AN INDIAN LENS

2014-12-22T20:03:00.000+05:30

The extent of recognition of Trade secrets the world-over can be gauged by the fact that a majority of working technology worldwide are protected as trade secrets rather than by patents.

Trade secret is confidential information that can be used in the operation of a business or other enterprise and is valuable to afford an actual or potential economic advantage to others.[1] The basic principle behind trade secret is to prevent ‘Theft’ of information by unfair means and commercially unreasonable means. [2] What makes something confidential and secret is the fact that person has derived a formula and produced the results using his brains that can only be derived by following the same process. The one putting the efforts for producing such results would want it to be protected. Also in this age of Technological era even an idea is open to attack, if shared with third party, thus it is essential to protect commercial interests and to hold such information confidential. The paper highlights the protection of Trade secrets in Indian arena.

HISTORY OF TRADE SECRET

Trade secret is a creation of 19^th century. According to TRIPS for information to qualify as a trade secret, it should fulfil the following conditions.[3]

1. It is a secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;

2. Since it is a secret, thus having a commercial value

3. Person in control of the information in order to take reasonable steps, keeps this information confidential.

Under Uniform Trade Secrets Act, 1985(hereinafter UTSA) a trade secret is defined as information, including a formula, pattern, compilation, program device, method, technique or process, that:

(i) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and

(ii) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Both these definition bring out three points that need to be fulfilled for information to become a trade secret that is:

(i) A secret.

(ii) Having commercial value.

(iii) Required steps have been taken for protecting the above mentioned information.

INDIAN LENS

Many authors have tried to justify the trade secrets. the primary and foremost question that comes into the minds is whether or not secret could be a 'property' or not. To many, if trade secrets are property, then laws protective them are normatively even. Thus, the question of whether or not or not trade secrets are property has raged on for several years. whereas some marvel why it matters, others believe that the shift toward line intangible assets "property" has produced and can still create a shift toward the protection of holding.

Two primary theories take into account trade secrets as property:

Exclusivity theory and integrated theory.

Exclusivity Theory

Even people who believe exclusive rights are the only real demand for property disagree regarding whether or not trade secrets ought to be property. This analysis was followed in Ruckelshaus v. Monsanto Co[4]the proper to exclude others is usually 'one of the foremost essential sticks within the bundle of rights that are ordinarily characterised as property.' the matter with this argument is that trade secrets aren't really exclusive, as distinguished by the Calif. Court held that, “The owner of the secret is protected solely against the appropriation of the key by improper means that and also the ensuing use or revelation of the improperly non heritable secret. There are numerous legitimate means that, like reverse engineering, by that a secret will be non heritable and used.[5]

Integrated Theory

Rather than watching exclusion, integration theorists look into however the plus is no heritable, used, and disposed. They argue that exclusivity is not enough, nor even necessary, to outline property. it's argued that secrets are property as a result of they are not transferable by the actions of the trade secret owner as a result of discoverers will build their own use of the knowledge as a result of its secret and since the house owners will decide however the knowledge is disposed of by publication or transfer.[6]This theory, however, additionally fails to resonate. However is it that 2 individuals will acquire and use a similar secret? Why ought to acquisition and use of an inspiration that's free for all to find benefit any protection?

Owning to the socialistic philosophy, India never felt a need of any law regarding Trade secrets, as being socialist India is in favour of distributing benefits to the society rather than an Individual.[7]That might be one of the reasons because of which India beheaded towards the regime of compulsory licensing, in Bayer v.Natco[8]case. Presently the common law governs the Trade secret in India.[9]The common law remedies with respect to Trade secrets have been derived from the law of Torts and contract.Indian courts relies on various judgements of common law, when it comes to trade secrets like from the Saltman Engineering case[10]India follows the principle that in India, parties must rely on contracts to protect the trade secrets. As maintenance of secrecy, according to the circumstances in any given case, either rests on the principles of equity, that is to say the application by the court of the need for conscientiousness in the course of conduct, or by the common law action for breach of confidence, which is in effect a breach of contract.[11]Sec. 27[12]of the Indian Contract Act, 1872 offers a little protection regarding Trade secrets. It allows protection of confidential information by allowing a perpetual monopoly in the form of Non-compete and Non-disclosure agreements contracts. This is an exception where restraint of trade is allowed in this manner. High court in John Richard Brady's case [13]held that if restraint is for trade secret then it is a valid restraint.

Other protection has been granted by incorporating some disclosure norms in the law of contract and also by treating IPR as property right. The Supreme Court in Niranjan Shankar Golikari v. Century Spg. & Mfg. Co., Ltd[14] A foreign producer collaborated with a company manufacturing tyre cord yarn on the condition that the company would maintain secrecy of all technical information and that it obtain corresponding secrecy arrangements from its employees. The Defendant was appointed for a period of five years on the condition that during this period he shall not serve anywhere else even if he left the service earlier. The agreement was held to be valid. In the present case, the restrictive covenant was restrictive with regard to time and nature and location of employment. It was not to prevent competition.

With growth in Business, the trade protection has become immense. Though there is no enactment in India that affords protection to trade secret, the following tools are in popular domain when it comes to trade secret:

i) Non-disclosure Agreements:

Non-disclosure agreement and the finest company policy for the employees to protect confidential information and trade secrets are suggested, which acts as a contractual remedy. Such agreements should define "confidential information" and the exceptions to confidentiality. clauses such as negating a grant of an implied license, restrictions on disclosure, use and copy; restriction on use of confidential information upon termination of the employment, return of information upon termination and right to withhold salary and emoluments till such return.[15]

Non-compete clauses, which depending on their application in the Indian context, to be read with the confidentiality clauses would accord organizations, add on gear protection as far as confidentiality is concerned. Clear concept and purpose should be defined, It is also to be ensured that employees do not compete unfairly to restrict secretive information while in employment. However, non-compete provisions has to be reasonable, as a tough non-compete agreement might be held as unenforceable by courts. For ensuring the protection of the rights of third party, the non-disclosure/employment agreement should clearly impose a duty on everyone working to not to interrupt into the organization's data or intellectual property, any confidential information of a third party. Employees should be required to indemnify the organization in case of violation of this clause. If the organization has not executed such agreements at the time of employment, subsequently executed agreements should expressly cover the confidential information obtained by the employee from the date of his employment.

ii) Internal Processes:

a) Secret Policy - Secret Policy could be a boon for businesses that heavily consider their trade secrets. A basic step to develop such a policy is to spot and prioritise the business secrets supported their worth and sensitivity. Staff should learn concerning the policy associated consequences of its breach before they comply by the policy and sign an acknowledgement thereto result.

b) Security Systems – Employees should be educated to spot information that is secretive, to change them to form associate help call. They must have a transparent understanding of their responsibilities to guard confidential matter associated and treat this as an on-going method that's integral to their work. Information that is confidential ought to be clearly indicated per se altogether communications. Applicable security procedures should be established and followed by the corporate and access to specific sensitive areas of work restricted or restricted to bound senior staff solely. Third-party interaction and disclosures ought to be channelled solely through such as personnel. Access to trade secrets and confidential information may also be restricted to only select personnel who have to undergo proper security checks. In case of an electronic environment, the businesses should use adequate software programs, virus scans, firewalls and other security and authentication technologies to safeguard their trade secrets.

c) Adequate Documentation – it is necessary for businesses to stay a track of the secrets that square measure developed and have enough records to point out that the trade secret was developed by them and belongs to them. These records would be of evidentiary worth just in case of a dispute. It might even be helpful for such businesses to conduct a secret audit at regular intervals and to stay up to now with any changes.

iii) An Exit-Interview:

During such associate degree interview, associate degree worker ought to be reminded of his obligations with relevance the company's lead and trade secrets and may be asked to sign a document reaffirming his obligations. If associate degree contract was signed, the document to be signed upon termination ought to be hooked up. a duplicate of the signed exit-interview type, as well as the use agreement, should incline to the worker. Such associate degree interview not solely is a meaningful reminder however also can be valuable proof of employee's data of such obligations. Success of suits for defence of lead and trade secrets depends upon production of satisfactory proof to prove confidentiality of the knowledge, act of speech act and also the damages caused thereby, still because the reasonability of such restriction.

NEED FOR THE LEGISLATION IN INDIA

Trade secret protection is fundamental to encourage innovative steps, foreign investment and for promoting healthy competition. In the Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber[16]it was observed by the Court that Trade secret law protects a wide array of business data, Customer lists and other compilations of business data may be copyrightable as fact works. If there will be enough safeguards mechanism than due to this there will be more transparency in commercial transactions and this will definitely increase foreign investment and trade. Due to effective regime or proper mechanism there will be no need to patent an invention, it can be protected through the laws of Trade Secrets therefore burden of patent litigation will be less. Further, as a result of effective regime there will be no violation of Fundamental right to privacy.[17]

A Sui Generis System as provided under Article 39 of the Trade-related aspects of Intellectual Property Rights (TRIPS) and Article 10 bis of the Paris Convention is required to tackle the problem of unfair competition.[18] As a member of TRIPS, It is the duty of India to prepare proper legislation and comprehensive rules and regulations to eradicate the animosity with respect to Trade Secrets protection. Further the provisions provided under Uniform Trade Secret Act and Economic Espionage Act of 1996 in US must be followed in India also,[19]therefore legislation is the need of the hour which provides civil as well as criminal liabilities into practice. Effective and stringent steps should be taken while keeping in mind the Innovation Bill of 2008 to provide a comprehensive legislation which would deal with the issues of defining liabilities of infringers, both in civil and criminal matters.

Although realizing the need of legislation for the protection of trade secrets, the Indian legislature came up with a bill named as "The Personal Data Protection Bill" which was introduced in Rajya Sabha on 8th December, 2006, but unfortunately the bill has not been passed till now and is pending for approval of the Indian Parliament before it can become an Act. For the Trade secret protection again an attempt was made in India by passing the National Innovation Act, 2008. Chapter VI of the Act talks about Confidentiality and Confidential Information and provides remedies. But this draft again could not become a reality. The wheels of India's entrepreneurial activity are just beginning to turn. A Sui Generis System for protection of trade secrets as provided under Article 39 of TRIPs Agreement and Article 10 bis of the Paris Convention is the need of the hour and by encoding substantive provisions in relation to protection of trade secrets, will prove vital in order to create an effective trade secrets regime in India.[20]

CONCLUSION

It is very evident that the Trade secrets are mostly ignored in India, unlike other fields of Intellectual property rights. But if India’s is to compete in Global arena, it has to open up for laws relating to it. As businesses are growing and going global, there arises a need of effective laws relating to trade secret protection. Presently in absence of laws, business is using the tools mentioned in the paper for dealing with their requirements of protecting the trade secrets. A strong statute would protect Indian Industries, as with increase in competition, confidential information and trade secrets are like perquisites for the survival of the Business these days.

[1] KV Swaminathan, Trade secrets in AK KOUL and VK AHUJA (eds), The law of Intellectual property Rights: In prospect and Retrospect, Delhi, 2001, P.272. Cited in Rishab Junej, validity of contract of Fidelity vis-à-vis Trade secrets (India & U.S.A) at Manuatra intellectual property reports (october 2013).

[2] Sristhi saxena, The common law protection of trade, secrets and the need for a statute, Manupatra, accessed at http://www.manupatrafast.in/Articles/PopOpenArticle.aspx?ID=37d6a8c9-4455-4f46-b389-decac96d823.

[3] Art 39 TRIPS, 1711(1) NAFTA.

[4]Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984).

[5] Cadence Design Sys., Inc. v. Avant Corp., 57 P. 3d 647, 650 (Cal. 2002).

[6] ADAM MOSSOFF, "What Is Property? Putting the Pieces Back Together", ARIZ. L. REV., 2003, at 371, 405-06.

[7]Cattle Remedies and Anr. v. Licensing Authority/Director of Ayurvedic and Unani Services 2007(2)AWC1093.

[8]Bayer Corporation v. Natco Pharma Ltd., Order No. 45/2013 (Intellectual Property Appellate

Board, Chennai), available at http://www.ipab.tn.nic.in/045-2013.htm

[9] Supra1.

[10]Saltman Engineering Co. Ltd. v. Campbell Engineering Co. Ltd., 1948 (65) R.P.C. 203.

[11]Patrick Hearn, The Business of Industrial Licensing: A Practical Guide to Patents, Know-How, Trade Marks, and Industrial Design 112 (1986), quoted in John Richard Brady and Others v. Chemical Process Equipments P. Ltd. and Another, A.I.R. 1987 Delhi 372, see also Tariq Ahmed, Legal Research analyst congress, Protection of Trade secrets India, accessed at law library of congress at http://www.loc.gov/law/help/tradesecrets/india.php.

[12]Agreement in restraint of trade, void.—Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void. tc "27. Agreement in restraint of trade, void.—Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void." Exception 1.—Saving of agreement not to carry on business of which goodwill is sold.—One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business, within specified local limits, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein, provided that such limits appear to the Court reasonable, regard being had to the nature of the business. tc "Exception 1.—Saving of agreement not to carry on business of which goodwill is sold.—One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business, within specified local limits, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein, provided that such limits appear to the Court reasonable, regard being had to the nature of the business.

[13] AIR1987 Delhi372, Gujarat Bottling Company Limited' AIR1995 SC 2372.

[14] [1967] 2 SCR 397.

[15] Supra 2.

[16] 1995 IV AD (Delhi) 732.

[17] Ravindra chhaba and shyam sundar chhaba, Inadequacy of the Trade secret’s protection Laws in India and Legal Regime Existing in U.S, Manupatra, http://www.manupatra.com/roundup/369/Articles/Inadequacy.pdf.

[18] Ibid.

[19] Supra 17.

[20] Supra 2.

Mastering the art of Writing

2014-12-22T19:50:00.005+05:30

Encapsulating the thoughts in proper expressions is no less than an art.

Be it either through speaking or through written words, it needs skills, talent and considerable efforts to charm bound the audience or readers. One can be a bestselling author, by simply adhering to few tips, which I would like to compile and tell you all.

1).See through lens;

A great writer is the one, who gives an eye to the reader by writing something in the manner, which allows readers to mellow-in the content and visualize the ink. Visualization effect always has a more lasting impression than a mere reading; it allows an easy understanding and builds up a connection, ultimately resulting into awakening of interest in the content. So write such content that would allow readers to see through and visualize the situation from their own lens from the bare white and blacks. Visualization effect builds up a special bonding between the reader and the content.

2). Metallic vocabulary;

There is no need of using heavy and unnecessary complex words, like I just did in this subheading. Posing as intellect might bring out the contrary. People use typical and technical words to flaunt their readers, but that would make the task of readers more typical. Such content enriched with uncommon and hi-fi words loosen its grip on readers, who are no more interested in reading stuff that makes them sound dumb. Simple and lucid words are always what a reader wants, because nobody likes a thing which makes them sound dumb. Try to make such connection where reader would feel on equal intellectual footing as that of writer that would bring some sense of belonging inside the reader to stick to from beginning till the end.

Proviso: If you are writing something for academic purpose, or writing about a profession, a discipline, or a subject which requires a concrete knowledge of its core language, through despicable use of technical or legal jargon, then writers may adopt the flaunting off method, as in such content the more you use such Jargons, the more you are praised.

Proviso to Proviso: One thing should be kept in mind, is that the technical words should not be mixed with words of common usage. Because what is very obvious for you might be something which is not generally used in common parlance. So before proceeding ahead, just give your write-up to few hand-picked people from your target audience, and let them analyse if there is anything they could not understand.

3).Rounding before the crux;

A hell lot of description about the room and surroundings, without even informing about the Head take is a piece of boredom. Too much beating around the bush is not acceptable. So it should not be too late from the inception to disclose the crux.Crux is the core subject of your content, about which you have been writing all these words. Readers must be informed of the theme as soon as possible, to keep their curiosity and interest intact in the content. Too much description about the things not even required is a big-no-no.

Proviso:

This does not imply killing of suspense. Balance of convenience should be maintained between telling the theme and breaking the suspense. Suspense should obviously be kept for last, but writers should surely learn this art of separating crux from suspense.

4).Reading;

Great writers have never read anything about How to write, still they are writing it this good, it’s just because they have learned it from reading. So if you want to write something, then you should read, read and read. Without reading, writing cannot be this refined and polished. Writing is the only art, where you have to brush up other things to sharpen it. Like, you have to read a lot of stuffs simply for writing a quality one page. Reading makes you learn from other writer’s mistakes. It helps in articulation, developing your own opinion which might contradict the writer’s. You get food for thought to ponder upon and give your contribution to that thought process. It is very useful because no 2 people have the same expression.

5).Revising;

No one is born perfect. They practised it and that’s what brought out their specialisation. You might become rich in a night, but to sustain it, you have to work for personal growth. Ladder of success is waiting for those, who have mastered their profession through practise. So the only key to become a successful writer is to read and revise your content to make it all perfect. Edit it as much as you can, thinking about your target readers. The first time thoughts came in one’s mind is not always the best method, because no one is born perfect, so that words would be so pure as soon as they are written. But they are being made perfect through revision. That’s why professional writers keep editors, for getting their work revised and edited form an experienced lens. Revising the work is very immense part of a writer. The more you revise, the more it is polished. Work can be best only through sheer hard work and never dying attitude of revising it.

To kill a Mockingbird

2014-07-07T16:07:00.001+05:30

This is a book; everyone should go through at least once in a lifetime. A gentle piece of modern literature, is candid enough to touch any soul with its simple and lucid account of harsh reality of cruel and discriminative practices that persists in our societies, at that time in the form of Blacks & Whites, that now can be compared and learnt from in respect of discriminative practices being trotter into Minorities and also on people belonging to LGBTQ community.

This book written by Harper lee (It is her only book so far), having been published in 1960, has won Pulitzer prize immediately after its publication and the movie based on the book bagged the Oscar award. It binds the readers in a childish tale, while describing about social issues like rape and inequality. Is a story every person should read. It should be taught as part of the syllabus. It is a story of Morals.

The author has set a plot in a Maycomb county, making us see through the eyes of Ms. Jean louiz finch, who is merely a child of 10 years. Author must have chosen it as a narrator because only a child can see through everything from unfiltered perspective and can treat everyone equally and only a child cannot kill a mockingbird. A story surmounts around the heroic character of Atticus, who is a father of Jean and Jem and also a lawyer by profession, is very articulate, witty, controlled and an epitome of ideals and morals. In today’s era, people find it hard to follow ethics and morals, considering it impossible to delve it into the staunch profession like a Lawyer. Many people consider lying and misrepresenting others as immense part of the profession. But that is so not true; this novel is an eye opener. Profession of a Lawyer is not only about earning money, it involves some morals to be respected too. One can be a successful lawyer like Atticus, who followed his morals, principles in every situation.

That was an era, when Negros were hated and considered as untouchables. It was considered as sheer shame to even touch them, and they were treated like a lower class of the society. Due to this façade, they faced discrimination and were subjected to brutality afflicted in the form of slavery and trafficking. They were subjected to false criminal cases, which would if dragged in a court of law, always decided against niggers. The one defending a Nigger was considered as criminal by the Society.

Atticus, even after knowing all these things, considers it morally correct to defend a nigger. He not only defends a nigger, charged for Rape, but also produces evidence that proved that he was innocent and was falsely charged for the act which was not even committed. As the White girl was madly in love with this nigger, tried to seduce him. Only after the incident she could grab her sense that he is a nigger, so to save herself from undergoing the shame in the society she considered it right to call it a Rape. Even after knowing the Truth, Nigger was considered Guilty by the Jury, Because a Nigger is always guilty. He ended up committing suicide. Such incidents would have been very common in that era. The Story ends with Jem killing the real culprit of the rape case, in private defense. So the Justice is done, as wrong has finally been undone by another wrong, which is not even a wrong, because Jem was a child and not an adult to be charged for Murder.

Company secretary's extended Role

2013-10-30T11:51:00.002+05:30

The companies Bill, 2012 as passed in both the houses of parliament and has been assented as the Companies Act, 2013, has conferred a wider interpretation to its recognition of Role of a Company secretaries in the corporate world and redefined its scope.

The ministry of corporate affairs deserves praise for bringing a new companies Act, by replacing the old act of 1956, and showcasing a broad corporate responsibility model. There are several innovative clauses in keeping with the Globalized Economy. The scope of the Company secretary has been promoted to renowned pedestal by not only focusing upon his traditionally acknowledged role but also by bestowing upon him the responsibility of widened Compliance functions. The Role of company secretary had been an arduous one. In the previous act it was defined under section 2(45) as 'secretary', "who is an individual to perform the duties of secretary and any other purely ministerial or administrative duties". The companies act, 2013 under section 203(1) has accorded an exalted status to them, bracketing it as a key managerial person along with high dignitaries. His appointment is now being culminated only through the resolution passed in the Board meetings.

The profession of company secretaries has climbed the top of the professional ladder in these 57 years, a situation never contemplated by the Founding fathers. Far from being described as a subordinate officer, he is now promoted to a key managerial personnel, superseding his recognized role as principle officer. In the early 19th century the functions of the CS as contemplated by the acts were administrative and not managerial, and the secretary should not assume an executive or managerial power in absence of express authority. Lord Esher, M.R. in Barnett v. south London Tramways co. (1887) 18 Q.B.D.815 held that view that a secretary is a mere servant. Even in 1928 the House of Lords in J.C.Houghton and company V. nothard, Lowe and Wells ltd (1928) L.R.(A.C.)1 reaffirmed the earlier view that as an arrangement which was entered into by the company was not ratified by the company through its Board, it was not authorized by the respondent company.
From 1887 to 1906 courts had uniformly taken the view that a CS fulfils a very humble role and had no authority to make any contract on behalf of the company. A striking departure was made in Panorama Developments(guildford) ltd V. Fidelis furnishing (1971) when Lord Denning and Lord Justice Salmon enhanced the CS status by stating, "Times have changed; a company secretary is a much more important person nowadays that he was in 1887. He is an officer of the company with extensive duties and responsibilities. He is no longer a mere clerk. He is certainly entitled to sign contracts in the administrative side of the company's affairs.

A new act is a beginning of a new era. The Role of Company secretary under the New Act:- The Role has been defined in section 204. And other ancillary roles has been mentioned under various other sections discussed below:-

1]introduction of secretarial Audit (Section 204):- Earlier his role was confined of being an administrative clerk to be compulsorily appointed by the companies having paid up capital of more than Rs.20 lakh. Now it has been elevated a ladder by making it a personnel of key managerial position.
Based on the recommendations made by parliamentary standing committee, secretarial Audit is introduced for the first time in India, This is a new concept never implemented in any other country so far. Under the section every listed company is required to attach with its Board's report a report of secretarial Audit, to be conducted by company secretary in practice. If any other remarks are made by CS in his report, the Board has to take cognizance of such remarks and provide explanation for the same. Penal provisions are being provided in case of non-compliance with this.
The introduction of the concept of secretarial audit proves the commitment of the Government towards establishing corporate governance. Provisions enhanced the expected role of company secretaries.

2]Secretariat standards (section 118):- The act recognizes the secretarial standards specified by ICSI. It is only a beginning of a new Dawn, where not only financial standards but also non-financial standards have been prioritized and given statutory recognition. Section 118(10) makes it mandatory for every company to observe the secretarial standards with respect to Board meetings and general meetings as lined by ICSI.

3]appointment of whole-time key Managerial personnel (section 203) :- For ensuring good corporate Governance and regulation, the role of senior management for managing company's affairs is very crucial. In order to make sure that companies are effectively managed, section 203 provides for compulsory appointment of Key Managerial Personnel (KMP) in respect of certain class of companies prescribed by the Government. A company secretary is covered under KMP.

4]functions of company secretary:-
For the first time, the functions of a company secretary has been mentioned in the companies act. He has to report to the Board about the compliance of the provisions, rules and other laws applicable to the company. He has to make sure that company complies with the secretarial standards, as issued by ICSI and to be approved by the central Government. Other duties are prescribed in the rules to be framed by the Government. This provision casts an overwhelming responsibility of CS in employment in the discharge of their duties and they are expected to deliver a proactive role to meet the expectations of the Respective companies and their regulating authorities.

Apart from these main roles, some other duties and jobs acceded with company secretary under the new act includes like acting as a profession to give assistance to the liquidator of a company at the time of winding up of the company (section 291). They are now empowered to represent a party to any proceedings or appeal before the Tribunal or the Appellate Tribunal as the case may be (section 432).
If during the tenure of their duties, a practicing profession has faith that an offense involving fraud is being committed by a company, it is duty to report such frauds. Section 143(2) clearly mentions that ,"Notwithstanding anything contained in this section, if an auditor of a company, in the course of the performance of his duties as auditor, has reason to believe that an offense involving fraud is being or has been committed against the company by the officers or employees of the company, he shall immediately report the matter to the central Government within such time and in such manner as may be prescribed". As per section 143(14), the provisions of 143 shall mutatis mutandis apply to a company secretary by virtue of his being positioning as a secretarial auditor for a company under section 204.

Bid Adieu to Studentoffortune

2013-08-29T00:38:00.001+05:30

It was painful to read their message, "The website studentoffortune will be taken down by 15 August 2013". I had no idea that such a website will get closed down. It was the only website I have ever came across which had the potential of making thousands of its users billionaires in no time and it was actually doing a great job emerging as a platform for both tutors and students who needs help. I enjoyed working for it. I earned lot of wealth, which is about to expire though.

I wanted to earn more but was disheartened to know about their future plans of working with chegg. There is no special incentives in working with chegg as they give only points through which limited things available in their market can be bought. All the fun, of earning in studentoffortune is spoiled. It was a website started by college students to help other students to get Homework help. The idea worked, It succeeded in its efforts, as people started using it. This was a great opportunity to earn money sitting at home working online by providing homework help in the form of tutorial by charging nominal amount of fees from the student. Students also got benefited, as they received great helping hand by paying less fees, which they failed to get by their college professors. But in some sense it was being misused. The manner in which it was working was not proper. Some people used to post fake tutorials and earn money by illegal means, but all such cases were handled very well through a rating scheme, where if they are rated F, no body would like to make any purchase from them in future.

Also, if we take the side of the students, then we realise that they became so much dependent on the website. Some rich students having enormous wealth started posting all of their college homewoks and projects and this is something which crosses the thin line of Ethical acts and makes it unethical.

But again as everyone is now following a self-centric approach, so people were interested in Earning money by giving as it is solution to everything that is being asked. Why should we care about the Ethics? But there is a rule; to be successful in the long run in any business it is necessary to follow the ethics. But this was not the case here, as Ethics were beyond the control of a common man as if in case he tries to do this business in an Ethical manner, he would get a bad rating which would imply no earning at all.

So this is how it worked and now it is gone. But hey!, It has left it's imprints and shared its idea to keep it alive through others. Yes there are thousands of websites which emerged on the same concept. I spent one month doing research on many of them. I came across one of the very trusted website where people can shift without hesitation and full trust just the way they used to do at SOF.

The website is here :-
http://www.AceMyHomework.com

copyright©thelegaltrain

Multiplier in Land Acqusition Act

2013-08-16T16:27:00.002+05:30

Multiplier is the rate used for capitalizing the future benefits in to the present values by discounting the benefits that can arise in future by including the expected risk associated. Under the Land acquisition act, Government can take possession and control of any land from any individual, even without their consent in lieu of some compensation granted to them. It is not that easy to calculate the amount of compensation to be awarded for the land acquired. As it involves various issues. Since it is a forceful transaction thus it has to consider the proper compensation, considering the future benefits to be given to the individual Through Multiplier the amount of compensation, to be granted to the person whose land has been acquired is decided. The multiplier is calculated after analysing the present market value of the property and if in case it is difficult to ascertain the present sale variable then income on the basis of yield is considered which is multiplied by the multiplier to ascertain the actual compensation to be awarded. But it is in dispute again how this Multiplier is decided and what is the criteria of awarding the compensation.

*In the case of State of Madras v. Rev.[1] It was held that “before dealing with the contentions raised by the learned counsel for the parties, we would reiterate that capitalisation means the method used to convert future benefits to present value by discounting such future benefit at an appropriate rate of return. It is the process of converting the net income of a property into its equivalent capital value. While capitalising the income, future income, its duration along with risk factor is to be taken into consideration. Capitalising rate means a designated rate of return which coverts net future benefits to capital value.”

It is settled law that in evaluating the market value of the acquired property, namely, land and building or the land with fruit- bearing trees standing thereon, value of both is to be determined not as separate units but as one unit. Therefore, it would be open to the Land Acquisition Officer or the Court either to assess the land with all its advantages and fix the market value thereof on the basis of comparable sale instances. In case where comparable sale instances are not available and where there is reliable and acceptable evidence on record of the annual income, market value could be assessed and determined on the basis of net annual income multiplied by appropriate multiplier for its capitalization

For capitalising the income, previously income from the gilt- edged securities was the basis, but thereafter rate of interest in nationalized banks where deposits are quite safe is taken into consideration as proper basis. If the interest rate in a nationalized bank or other safe investments, on a long term fixed deposit, say is 10%, and the yield from the trees p.a. is Rs.5,000/-, then for getting the said income, deposits of Rs.50,000/- would be required to be made. Hence, the value of the said trees along with the land can be safely assessed as Rs.50,000/-. Hence, yield of trees multiplied by an appropriate multiplier for its capitalization after taking into consideration all relevant factors would be the basis for determining the compensation.

*In the case of kamala Prasad singh vs state of Bihar, 2010

The market value of the land is determined on the basis of the yield. Then necessarily applying suitable multiplier, the compensation need to be awarded. Under no circumstances the Court should allow the compensation on the basis of the nature of the land as well as fruit bearing trees. In other words, market value of the land is determined twice over and one on the basis of the value of the land and again on the basis of the yield got from the fruit bearing trees. The definition of the land includes the benefits to arise from the land as defined in S.3(a) of the Act. After compensation is determined on the basis of the value of the land from the income applying suitable multiplier, then the trees would be valued only as fire- wood and necessary compensation would be given. In this case, the High Court did not adopt this procedure. We have looked into the figures furnished in the judgment of the High Court of the amount awarded by the Officer himself. He too while determining the compensation at the rate of Rs. 12,240/- per acre on the basis of the yield, the multiplier applied is more than 8 years. Under no circumstances, the multiplier should be more than 8 years multiplier as it is settled law of this Court in catena of decisions that when the market value is determined on the basis of the yield from the trees or plantation, 8 years’ multiplier shall be appropriate multiplier. For agricultural land 12 years’ multiplier shall be suitable multiplier. The Hon'ble Supreme Court in the above decision held that the multiplier should not be more that 8 years but in the instant case the Land Acquisition Judge has multiplied by 15 times. Because the collector calculated the multiplier as more than 8 years and thus Judge had to apply more multiplier than decided by the collector, by virtue of section 25 of Land acquisition act.[2]

*In the case of State of Haryana-vrs. Gurcharan Singh reported in AIR 1996 SC 106

Similar Judgement was passed “Under no circumstances, the multiplier should be more than 8 years multiplier as sit is settled law of this Court in catena of decisions that when the market value is determined on the basis of the yield from the trees or plantation, 8 years multiplier shall be appropriate multiplier. For agricultural land 12 years multiplier shall be suitable multiplier"

The aforesaid ratio laid down in Gurcharan Singh case[3]was also approved by a larger Bench of the Apex Court, in the case of Airports Authority of India -v- Satya Gopal Roy [4]wherein it was observed as follows: "Hence, in our view, there was no reason for the High Court not to follow the decision rendered by this Court in Gurcharan Singh's case and determine the compensation payable to the respondents on the basis of the yield from the trees by applying 8 years' multiplier. In this view of the matter, in our view, the High Court committed error apparent in awarding compensation adopting the multiplier of 18."

The ratio laid down in Gurcharan Singh's case and in the Airports Authority of India's case has also been followed by this Court in the case of State of Orissa -v- Giridhari Nayak [5]where in for acquisition of Agricultural land, this Court adopted 12 multiplier instead of 16 for the assessment of compensation.

[1] AIR 1973 SC 2463

[2] Section 25, Land acquistition act 1894 ; Amount of compensation awarded by Court not to be lower than the amount awarded by the Collector. - The amount of compensation awarded by the Court shall not be less than the amount awarded by the Collector under section 11.

[3] AIR 1996 SC 106

[4]AIR 2002 SC 1423

[5] 2006(II) OLR 329

Decree obtained by Fraud

2013-08-16T16:22:00.000+05:30

Decree obtained by fraud will be nullity if decreed to be nullified by the court of competent Jurisdiction

*In the case of A.V. Papayya Sastry & Ors vs Government Of A.P. & Ors on 7 March, 2007

It is thus settled proposition of law that a judgment, decreeor order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non-est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.

*In S.P. Chengalvaraya Naidu (dead) by LRs. V. Jagannath (dead) by LRs. & Ors. (1994) 1 SCC 1 : JT 1994 (6) SC 331, this Court had an occasion to consider the doctrine of fraudand the effect thereof on the judgment obtainedby a party. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. The trial court upheld the contention and dismissed the application. The High Court, however, set aside the order of the trial court, observing that "there was no legal duty cast

"The judiciary in India also possesses inherent power, specially under Section 151 C.P.C., to recall its judgment or order if it is obtainedby Fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud.Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the Constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business".

*In the case of Rajib Panda vs Lakhan Sendh Mahapatra And Ors. on 18 July, 1899

It was held that For the foregoing reasons I think the contention of the defendant that it is open to him in this case under Section 44 of the Evidence Act to show that the decree relied upon by the plaintiffs was obtained by fraud, is correct and ought to prevail, and the judgments of Mr. Justice Stevens and of the District Judge of Cuttack ought to be set aside and the case sent back to the District Judge for disposing of it after determining whether the decree relied upon by the plaintiffs was obtained by fraud, and if it was obtained by fraud, whether the tenancy set up by the defendant is established.

*In the case of Arunachalam Chetty vs Sabapathy Chetty on 28 March, 1917

It was held that Decree obtained by fraud has to be nullified through another decree by a civil court of competent jurisdiction. treat a decree obtained by fraudas a nullity when the impeachment of the decree arises incidentally or is only one of the reliefs prayed, and the jurisdiction of the Court where the impeachment of the decree is the sole object of the suit.

*In Shri Jiten Bhalla vs Ms.Gaytri Bajaj on 8 September, 2008

An order was passed u/s 151 CPC by the Addl. District Judge, setting aside a decree obtained by fraud

Threats to space assets and India’s option

2013-04-18T00:33:00.001+05:30

Chanakya once said “The serpent may, without being poisonous raise high its hood, but the show of terror is enough to frighten people, whether he be venomous or not”.

It means that India though will not harms anyone, but it will have to develop Anti-satellite to protect itself which though might not be affective when it comes to attack by others, but it is sufficient to create terror among them.

Space assets meant both a satellite and a ground station with trained and technically competent manpower attached to them. Space assets constitute a sub-section the broader structure of National security and plays an important role in Indian defence and military services.

The satellites and space services for National security provides several benefits:- like 1].Space services are a force multiplier for conventional forces as they improve capabilities and performance.

2].Space services can significantly expand intelligence collection and analysis for accessing threats and providing warnings. Those using space will have an advantage over their adversaries and competitors.

3].Space programs are element of National power, they increase prestige and provide technological prowess that can expand a nation’s influence and leadership on the international stage.

India is considered among the best players of space industry in Asia after china. It has encountered major events with space assets like the successful launch of India’s first mission to the moon, Chandrayan I, the launch of 10 satellites utilising the polar satellite launch vehicle (PSLV) from shriharikota that included India’s advanced remote sensing satellite for international customers CARTOSAT-2A , Indian Mini satellite (IMS-1), 8 Nano satellites. The year 2009 witnessed the successful launch of 7 satellites OCEANSAT-2, four CUBESAT satellite and two RUBIN-9, radar imaging satellite (RISAT-2) and Anna university microsatellite (ANUSAT) from shriharikota. Space is a global common. Despite this some nations are developing a ASAT weapon capabilities. The main driver for this is their quest for space control. The space assets are vulnerable to variety of threats like Jamming of communications, command and control system/links physical attacks on satellites and ground stations dazzling or blinding of satellites sensors; high altitude nuclear detonators(HAND).

Destruction of space assets may results into creation of debris . Debris are space junk. They travel at a speed of 17,500 MPH, fast enough for small pieces of orbital Debris to Damage a satellite. It increases potential danger to all space vehicles and International space station. In 1996, a French satellite was hit and damaged by debris from a French rocket that had exploded a decade later. In 2009, a defunct Russian satellite collided with and destroyed a functioning U.S. Iridium commercial satellite collision added 2000 pieces of traceable debris. China’s 2007 anti satellite test, which used a Missile to destroy an old weather satellite added more than 3000 pieces to debris.

Let us we discuss how India is protecting and what are it’s option:-

India had planned to accommodate the Anti satellite as part of its Ballistic Missile defence program. India believes that its high altitude interceptors can indeed serve as Anti-satellite weapons (ASAT) which would be capable of destroying low orbit satellite.

India signed convention on the registration of objects launched in outer space and outer space treaty in 1976. Under this treaty it has prohibited the launch of Anti-satellites. This was passed in United nations General assembly and no country signatory to this treaty is allowed to breach it unless the country is included in the united nations security council and have powers to decline sanctions through veto power. Like China had launched Anti satellite to destroy it’s own old satellite which resulted into creation of 6000 pieces of debris and also caused destruction to some parts of International space centre. It can attack the satellites of other countries in future. But India can not just sit and accept the harm caused by other nations by launching ASAT. It has to prepare itself in a manner to if not harm others but to atleast protect its own assets.

There are many options available with India which are discussed here

1].Focus on Ground:-

Firstly India should focus on ground. Identifying an enemy satellite orbiting around the Earth and then damaging it is not easy technologically. And before we think about the safety and security of satellites in space we have to pay our attention to somewhat neglected aspect of security of space assets on the ground because the operations of satellite depends upon space centres situated on ground. Launching deterrent weapons is a secondary issue, the need of the hour is to equip the existing space centres with information and technological censors. Thus the integrated space cell should be promoted and forced to work properly. The integrated space cell has been set up in 2008 to utilize more effectively the countries space based assets for Military purposes and to look into threats to these assets. Presently it is working under collaboration with DRDO(Defence research and development organisation), ISRO(India space research organisation) and IAF(Indian air force). The satellite or space wing should be separated, then only it would be able to concentrate more effectively on developing offensive counter space system like Anti-satellite weaponry. Presently Integrated space cell is working to develop cooperation and coordination between these three wings instead of developing capabilities. Thus the space wing should be separated. The Research and development should be promoted in this field to develop non-destroyable satellite.

2].Constellation of small satellites be formed:-

At present the orbiting Indian satellites are unprotected against any enemy attacks. India does not have policy of weaponisation of its satellites. But there are plans of accommodating ASAT through Ballistic defence Missile system to counter satellites from enemy attacks. Thus constellation of small satellites weighing 30-60 Kg can be armed that can be activated from the ground in case of enemy attacks. If proper information system censors are developed then it can be destroyed even before it attacks. Agni missile was launched as part of accommodating Ballistic defence missile program with ASAT.

3].Use of Laser technology:-

India is on the road to acquire laser based anti-ballistic Missile system called as “Directed energy weapon”(DEWs). It can kill incoming Ballistic Missiles by Bombarding them with subatomic particles or electromagnetic waves. The weapons are capable of intercepting Missiles soon after the are launched toward India. India has already researched on space based lasers as well as ‘Kinetic attack loitering interceptor’ (KALI), which produces electron injector rays to destroy missiles.

Besides these measures there are other general protective measures also which India can adopt

1].India should concentrate more on space exploitation capability development both for space and ground segments than concentrating efforts and finances of space weapon system. Research and Development should continue at appropriate level to develop enabling technologies which are required for peaceful usage.

2].India should develop alternative to space system to reduce the dependence on space system. The space system should act only as redundancy or as an alternative to terrestrial or aerial platform. This will ensure better exploitation of adversary weakness.

3].The use of friendly nation’s satellite will be advantageous. Adversary shall be reluctant to target foreign satellite due to obvious political implications.

4].India can deploy electronic warfare(EW) coupled with cybernetic attack to make fighting war in space both economic and effective. India should expand the scope of EW units to include cyber warfare capabilities and other EW measures against the satellites by employing static Mobile and on the move satellite terminals. Besides this India should also develop capabilities to counter Electronic warfare attacks like attacks which leads to Jamming of communications.

5].Also India should develop Quick Launch capabilities through a Mobile platform for low orbit satellites in order to replace critical space infrastructure if it is threatened or disabled.

I would not like to conclude that “Deterrence is what is required most urgently and it will be attained. Question is not ‘if’, but the question is ‘when’?

********

This article is an excerpt of a paper written and presented by Apoorva sharma at NALSAR University, Hyderabad for its workshop on Liberalisation and privatisation of space industry took place on 12-13 April 2013.

Medicine patent and compulsory licensing in India

2013-04-17T22:03:00.001+05:30

The Pharmaceutical industry in India is the world's third-largest in terms of volume and stands 14th in terms of value.

Medicines are developed through years of research and thus helps in curing diseases. R&D takes high cost. Innovations can be expected through R&D only. To promote innovations patent is granted(as far as other fields are concerned). The patent protection helps the company to carry on it’s R&D as there is no threat from any competitor and they will be the sole seller of that product. India has had lax patent laws compared with other countries. They allow Indian companies to produce generic versions of drugs that are under patent elsewhere. The competition between manufacturers drives down the price of the drug.

For many years, India did not recognise drug patents at all.However, in 1994, India signed up to the TRIPS agreement (Trade Related Aspects of International Property Rights), an international law that gives drug companies a 20 year patent on the production of drugs. TRIPS required India to introduce patents on medicines in 2005. In contrast to other countries in the TRIPS agreement, India also introduced laws that prohibited an industry tactic called evergreening. Evergreening is where a company extends its patent on a drug by patenting slightly modified versions of the drug. For example, they might release the original drug in its salt form, even if this does not bring a therapeutic improvement. Two major cases were decided recently recently relating to the Medicine patenting in India. Fortunately both the judgements are in favour of Weaker section (we the customers). Supreme court recently declined the patent application of swiss based Novartis on the grounds of evergreening. It tried to expand it’s patent on Glivec. It launched better version of Glivec and demanded patent for it, which was out rightly rejected as India does not permit patent for Evergreening. One more judgement was passed recently which was a case relenting to compulsory licensing of drugs. Compulsory licensing is give to drug companies under which it can produce and sell the already patented product of some other company at a lower price. This is given for lowering down the price of medicine which is highly charged by company having patent of that product. Natco company had applied for a compulsory licensing to sale drug. India has invoked its compulsory licensing rules for the first time, allowing the domestic drugmaker Natco Pharma to make and sell a version of Bayer's cancer drug Nexavar--despite the fact that Nexavar is still on patent. Natco will pay a 6% royalty, but given the fact that it's going to be selling Nexavar at a substantial discount, that payment probably won't be very significant. It's the patent board's ruling that's significant. Now that the Indian government has granted one license, more generic drugmakers are expected to petition for their own.Compulsory licensing is a contentious affair; globally, it's uncommonly used. The idea is that, in a public health crisis, generic drugmakers should be able to sell lower-cost versions of branded drugs, so that more patients can get access to treatment. Some multinational companies have granted their own licenses to low-cost drugmakers for public health (and public relations) reasons, particularly on AIDS drugs for sale in Africa. Government compulsion is a different story; branded drugmakers view that approach as an assault on their intellectual property rights.

One can argue that cost Research and development is much higher than what all revenue generated at normal rates of distribution. But that is so not true. Agree that cost incurred in R&D is much higher that’s why they expect patent protection so as to create a monopoly and sell at higher prices. In this manner they are making it available to only few people who can afford. In this manner they earn revenue only from small proportion of needy people. If they lower up the cost or if the patent protection is not granted they would be forced to lower the prices and thus manner large number of people would be able to afford it. Which will lead to economies of scale and more profit. Because of it now more number of people will prefer buying it compared to earlier situation where most people prefer to die instead of buying such costly medicines. Also the currency of every country fluctuates. And the company applying for patent has worked in R&D and is very well established as a multi national company operating all over the world like Ranbaxy, Novartis. The cost incurred for producing the drug is the same everywhere and prices actually charged varied from country to country. Their prices for developing country like India and underdeveloped country shall be different compared to what they charge in developed countries. They are earning a lot already from selling it at global market. They don’t need a patent to cover up a R&D cost and if they want to earn the real more profit then they should try to focus on inclusive growth than fragmented growth. They should lower the cost and their sales would include a new customer base which is far more than the earlier creamy layer. As rich people are always fewer than poor. Ex- If a price of medicine is 20,000 and there are 100 people. Out of which 20 are rich are 80 are either middle class or poor. Only 20 people can afford this. They earn 20,000x20= 400000 Rs. Only. And suppose if price reduced to 5000 Rs. Now say 80 can afford it(considering the rest 20 to be extremely poor) now also they can earn 5000x80= 400000 Rs. The same as earlier situation. Then why not benefit the society by reaching out to a large number of population than being contended with mere small proportion of population. The more you reach out to people, the more goodwill it is and popularity too which is extremely necessary in this era to make mark in the long run.

JOLLY LLB

2013-03-18T19:54:00.000+05:30

Movie was completely off trend, but is capable enough to shift the bolly trend. when every director & producer these days is indulged in producing some cheesy, double meaning movies full of romance and sex, director subhash kapoor tried to bring Indian legal system in to focus. Story grounds around the character of Jagdish tyagi jolly, as fresh LLB Graduate who struggles as a beginner in Meerut. He decides to practice litigation in New delhi. Attracted by the charm that delhi can offer, he moves to District court of Delhi. Where he find it hard again to earn his bread. He wants to earn name and fame. Once he encounters the arguments of Tejinder rajpal, who is famous and reputed lawyer, in a hit and run case which was decided in Rajpal’s favour. Jolly was motivated and wanted to become like him. Later on he realises that Tejinder rajpal has saved the accused who is a real culprit. He files a PIL against the court decision and then story begins where he fights for the real cause against most famous lawyer who is shown at a reputation equivalent to Jethmalani. It shows how for money lawyers are ready to do anything. How judges can be settled by lawyer. Money can corrupt minds at any level and by any means. How people commit crimes and tries to find loopholes of law. Witnesses turns hostile for small amount of money. And law is all for creamy layer, no body is concerned about poor. Through mixed blend of comedy, emotions and greed the real taste of Indian legal system is stroked in the movie. It is a satire on the present system and also depicts the harsh reality of how it actually works. It is the first ever movie in Indian history which could shed off the veil and bring the real colour of legal system by depicting the real scenario. I myself as a law student have encountered many people asking to me “does court look the same as shown in the movies? And I always had to disappoint them by saying no. As what all shown in the movies is always the ideal situation which is never going to turn into fortuitous in practicality, not at least in India. Courts were wrongly misinterpreted as equipped with well furnished infrastructure having a judge and two lawyers arguing with each other for a case like real warrior and the role of lawyer was not limited to lawyering but extended to detectives and CIDs. Which is a far cry from reality, as courts are more like a fish market. Which is shown aptly in the movie.

Hard earned struggle faced by fresh law graduates can be felt in the movie. Movie is a complete fun and reality package. Though it is Low budget movie but is worth watching.

I was happy, not because a movie on Law was released but because it has disclosed the harsh practicality of Indian legal system and pave the way for development in this field. Apart from corruption, the major problem is limited funds allocation by Government which has barred our legal system to grow. Allocation of more funds, appointment of more judges and increasing the number of benches of supreme court as per different specialised areas of judges is the need of the hour. Through this movie the harsh reality of the profession could come into limelight, which was waiting for years to seek attention. Despite its low cost budget and cheap songs movie emerged as a winner as it could earn 3.12 crore on the very first day. This is a new era where not only romance can crease the bread, as new ideas are embraced. It succeeded in bringing motivating and emotional Goosebumps.

Emergence of Micro-finance

2013-03-14T00:11:00.001+05:30

Microfinance is a concept which proved as blessing in disguise for poor. Banking and financial services never thought about providing loans to the one who does not have funds but to the one who already have. It was difficult for poor to enjoy financial services and investment benefits. They do not have any security to be pledged or mortgaged for loans and also they do not have any guarantor who can guarantee on their behalf. So receiving repayment from such people seems impossible thus all the doors were closed for them. They were very intellectual but lack sources of finance. They needed small money to turn up the big ideas, which is a distant dream because of unavailability of funds. They avails all the domestic opportunity. Like they invest in Gold and other jewellery unlike rich people who invests in shares and stock market.

They saves corn to sale it on later dates.

Microfinance is a concept of providing funds to poor people, without asking for any requirement or without any complexity or without any security as generally demanded by Banks and other financial institutions. As these financial services usually involve small amounts of money - small loans, small savings, etc. - the term "microfinance" helps to differentiate these services from those which formal banks provide.

Why are they small? Someone who doesn't have a lot of money isn't likely to want or be able to take out a $50,000 loan, or be able to open a savings account with an opening balance of $1,000.

It's easy to imagine poor people don't need financial services, but when you think about it they are using these services already, although they might look a little different. They bury cash in the garden or stash it under the mattress. They participate in informal savings groups where everyone contributes a small amount of cash each day, week, or month, and is successively awarded the pot on a rotating basis. Some of these groups allow members to borrow from the pot as well. The poor also give their money to neighbors to hold or pay local cash collectors to keep it safe. However widely used, informal savings mechanisms have serious limitations. It is not possible, for example, to cut a leg off a goat when the family suddenly needs a small amount of cash. In-kind savings are subject to fluctuations in commodity prices, destruction by insects, fire, thieves, or illness (in the case of livestock). Informal rotating savings groups tend to be small and rotate limited amounts of money. Moreover, these groups often require rigid amounts of money at set intervals and do not react to changes in their members' ability to save. Perhaps most importantly, the poor are more likely to lose their money through fraud or mismanagement in informal savings arrangements than are depositors in formal financial institutions."

INDIA’S microfinance sector was once touted as a saviour of the poor and a good bet for investors. In recent years microfinance institutions (MFIs) have focused increasingly on making their operations financially sustainable by charging interest rates that are high enough to cover all their costs. This approach ensures that they can continue to operate and indeed expand to serve more people. If they do not make their operations sustainable then they must continually be reliant upon subsidies from donors, which may or may not be forthcoming, or they may have to close down altogether since they cannot cover their costs in which case many poor people would certainly be worse off. It is worth pointing out that as MFIs mature over time and become more efficient, transaction costs usually decrease and this can mean lower interest rates. Furthermore, it is also worth emphasising that the interest rates charged by MFIs are still far below what poor people can expect to pay to local moneylenders, who often charge annual interest rates of several hundred percent. By providing interest free capital to MFIs through peer-to-peer lending site like lend with care, one of our aims is to enable local institutions to lower interest rates whilst continuing to serve the poorest in their communities.

Microfinance is a double-edged sword: even with the best of intentions, it can both help and harm. Microfinance has helped many people rise above poverty and transform their lives for the better. It had be known that countless households who have used microloans to permanently increase their cash incomes, which are then used for longer and better education for the families' children as well as improving health and nutrition. I believe this type of successful outcome is the most common result of a microfinance loan.

If an MFI loan is taken with the goal of financing a short-term business expense, then you will likely see an immediate return that will justify the interest rate. Face it, these loans are expensive to service and other alternatives are even worse.

If the loan is taken to roll a previous loan or for consumption items like food, then yes, they may end up poorer than before. Unless it's to pay off a loan shark, and then they might be better off, due to the lower interest rate/risk of bodily harm.

Parenthetically, MFI's frequently sell off questionable notes before they go delinquent, in order to pad their repayment rate figures. It's not nice but it frequently occurs. This leads to overstated success rates. But in general MFI's are learning valuable lessons from the crash and are implementing practices that improve repayment rates while ensuring loans go to people who will actually benefit from them.

In general, the growth was driven by a mix of motives. The pursuit of profit was one, especially in India, where MFIs brought in private-equity investors looking for high returns. But most of the investment in microcredit has been socially motivated and profit has not been the main lure. Thus these bursting bubbles may be the first in history filled more by generosity than greed.

I would have to conclude that there is no convincing evidence that microcredit raises incomes on average. While many have sought that and many have thought it found, the fact is, it still eludes us. It is entirely possible that a majority of microfinance users do not invest in microenterprises but instead use the loans to smooth their lives and continue to spend on what they see as necessities.

Microfinance is a broad category of services, which includes microcredit. Microcredit is provision of credit services to poor clients. Although microcredit is one of the aspects of microfinance, conflation of the two terms is endemic in public discourse. Critics often attack microcredit while referring to it indiscriminately as either 'microcredit' or 'microfinance'. Due to the broad range of microfinance services, it is difficult to assess impact, and very few studies have tried to assess its full impact.

Microcredit is the extension of very small loans (microloans) to impoverished borrowers who typically lack collateral, steady employment and a verifiable credit history. It is designed not only to support entrepreneurship and alleviate poverty, but also in many cases to empower women and uplift entire communities by extension.

The idea of microfinance was originated in the mind of Bangladesh based entrepreneur mohhammmad yunus, who founded Gramin bank as world’s first Microfinance Institution. His idea was rejected by almost all famous banks. But he succeeded with 99% repayment rate. In 1976, during visits to the poorest households in the village of Jobra near Chittagong University, Yunus discovered that very small loans could make a disproportionate difference to a poor person. Jobra women who made bamboo furniture had to take out usuriousloans for buying bamboo, to pay their profits to the moneylenders. His first loan, consisting of US$27.00 from his own pocket, was made to 42 women in the village, who made a net profit of BDT 0.50 (US$0.02) each on the loan. Accumulated through many loans, this vastly improving Bangladesh's ability to export and import as it did in the past, resulting in a greater form of globalisation and economic status. Yunus finally succeeded in securing a loan from the government Janata Bank to lend it to the poor in Jobra in December 1976. The institution continued to operate by securing loans from other banks for its projects. By 1982, the bank had 28,000 members. On 1 October 1983 the pilot project began operations as a full-fledged bank and was renamed the Grameen Bank (Village Bank) to make loans to poor Bangladeshis. Yunus and his colleagues encountered everything from violent radical leftists to the conservative clergy who told women that they would be denied a Muslim burial if they borrowed money from the Grameen Bank.As of July 2007, Grameen Bank has issued US$ 6.38 billion to 7.4 million borrowers. To ensure repayment, the bank uses a system of "solidarity groups". These small informal groups apply together for loans and its members act as co-guarantors of repayment and support one another's efforts at economic self-advancement. Gramin bank became a corporate bank in 2002. Today it is 90% owned by its borrowers (the rural poor) and 10% by the government. It is estimated that nearly nine million people are borrowers from the Grameen Bank in Bangladesh and 95% of them are women. Yunus received the Nobel Prize in 2006 for his work in alleviating poverty in rural areas but he was controversially removed from his post as head of the Grameen Bank by the Central Bank of Bangladesh in 2011 because of his age (70 years old). The move was widely seen as a political attack by the Bangladesh Prime Minister, Sheikh Hasina, a long-term critic of Yunus and the Grameen Bank who, she claimed, were making money from poor people by charging high interest rates.

The success of the Grameen model has encouraged the growth of many more microfinance institutions in Latin America, Africa and Asia such as Kiva and PRODEM (later Banco Sol). It is the growth of these institutions and the increased involvement of commercial banks with neoliberal principles that has caused a debate about the true value of microcredit as a means of reducing poverty.

Emergence of virtual law firm

2013-01-25T20:03:00.001+05:30

We all know that lawyers are intermediary between the courts and the clients. They provide directions on how to go about a case. We are acquainted with the traditional form of lawyering where a lawyer works in his chamber, and assist the client through out the case. There is a famous legal maxim given by William Ewart galdstone ‘Justice delayed is justice denied’. This can be true but in reality what happens in most of the cases is ‘Justice not delayed is justice not granted. It means that This has become the famous practice almost everywhere to drag cases for many years, and this is something which irritates a victim to file a suit.

Though it was difficult to reduce the backlog of cases, so Some lawyers actually looked out the prospects of considering ‘customer as the ultimate king’ and followed the concept of bringing change in oneself instead of blaming the procedure of the courts. They gave birth to some new concepts of lawyering, which proved as a blessings in disguise for everyone. New concepts leads to emergence of virtual law firm. It is a wider concept than E-lawyering which was limited to legal ghostwriters, unbundled legal services. These services accompanied with teleconferencing and cloud computing and gave birth to Virtual law office. Virtual law office is free from bricks and mortars, it work upon network to deal with clients through distance communication mode.

California became the first state to officially permit the unbundled legal services. It was limited scope legal services, providing only few services to the client to cut their cost. Areas embraced by unbundled legal services were legal ghost-writing. Because of it’s success it began to evolve in to other areas like E-lawyering and Virtual law office which focused upon further cost cutting and made services easily accessible anywhere anytime. The first recorded virtual law firm was "Woolley & Co" set up in 1996 in England by Andrew Woolley. He defined virtual law firm as ‘it is a law firm that:

1. Has a stable core group of attorneys;

2. Has established collaborative relationships with other, specialized law firms that possess expertise that’s occasionally needed;

3. Is glued together with appropriate computer and telecommunications technology; and,

4. Expands and reduces personnel as needed.

There are many advantages of setting up a virtual law office:-

setting up a VLO does not require any funds, but a good network for digitalisation and proper knowledge of internet, computer and handling out the data. Thus no investment is required. Secondaly any competent attorney with eligible qualification can open up a virtual law firm so it provides a source of employment to many. It is also time saving business, as it can be operated from a bed with a tea. Also It reduces the visits of a client and limits it only to court visits. All forms are available online, thus helps in saving time. Also it works on digitalisation concept, so there is no use of paper, all data are secured through network. Thus it helps in sustainable and environmental development.

Inspite of having so many advantages, a virtual law firm is not free from challenges. There are many challenges like it is not accessible to everyone, because existence of these firms are limited to a network, and many people still do no have an internet connectivity. Also there are many security threats associated with it, as all the work is secured in a network, which can be hacked and formatted and thus the data is not secured. But such problems can be solved through cloud computing. Also there is a fear of misuse of these services as there is no personal contact between client and firm, there are chances of unauthorised operator operating as a legal attorney. For curbing such practices, registration and licence can be issued to regulate virtual law firms but that can happen only if virtual law offices are permitted officially. There is not much rules Governing it. California imposes the same duties on VLO as that of Traditional forms, however in addition to that it requires the ethical compliance from VLO. In India Bar councils frames many of the rules, regulation and code of conduct to be followed by law professions. Though there is no specific rules and regulations Governing the code of conduct for Virtual law office in India, but still, companies undergoing such practice are required to be a qualified lawyers and have to provide access to clients through website only by proper channel of registration and signup.

Presently many foreign law firms are gaining success in this field. Few of them are legalwebexpert, exello, vlp etc. They provide access to the data only through registration which can be done by submitting details and fees prescribed for the plans. The data are saved and secured through cloud computing. Online assistance and live chats are provided to customers. In future it is going to become a trend and will gain success as it is the most convenient mode of legal services. New legislation will come to light Governing the new line of service.

*This article is an excerpts of the paper 'Emergence of virtual law firm' written by Apoorva sharma, and presented in 'Vision 2020, 3rd national conference In Institute of Law, Nirma university, on 24-25th January 2013.

Brief of Trial court Internship (November 26- December 26 2012)

2013-01-15T21:53:00.001+05:30

Internship at Trial court, Bhopal, M.P.

BRIEF ABOUT COURTS VISITED

District court is the base without which superior judiciary can not stand. It is the court of original jurisdiction. No one except in case of breach of fundamental rights can directly approach high court and Supreme court without approaching the District and Session court. In High courts and supreme court both the civil and criminal cases are heard. The structure of Lower judiciary in Indian judicial system hierarchy is divided into two parts one is District court which deals with civil cases and the other is Session court which deals with criminal cases. This difference is more for theoretical understanding of the Heirarchy, though in reality the judges for both district and session can be same. The District Courts are at the top of all the subordinate or lower courts. They are however under the administrative control of the High Court of the State to which the district court belongs to. Their jurisdiction is confined to the districts they are responsible for, which could be just one or more than one. The original jurisdiction of the District Courts in civil matters is confined by not just the territorial limitations, but by pecuniary limitations as well. The pecuniary limitations are laid down by the legislature and if the amount in dispute in a matter is way above the pecuniary jurisdiction of the District Court, then the matter will be heard by the concerned High Court of that State. In case of criminal matters, the jurisdiction of the courts is laid down by the legislature. The decisions of the District Courts are of course subject to the appellate jurisdiction of the High Courts. Apart from these judicial bodies who enforce the laws and rules laid down by the legislature and executive and also interpret them (the Supreme Court & High Courts), there are numerous quasi judicial bodies who are involved in dispute resolutions. These quasi judicial bodies are the Tribunals and Regulators.

I have visited the following courts:-

DISTRICT AND SESSION COURTS:-

There are 65 Judges in the District court of Bhopal, dealing with cases relating to all areas.

Civil matters are dealt by District courts and criminal matters are dealt by Session court. But in The District and session court of Bhopal same judge is appointed for both civil and criminal matters or it can also be separated. It is situated in M.P.Nagar, Bhopal. It is Asia’s largest and the best district court. It has jurisdiction to deal with cases occurring within the boundaries of Bhopal district. Appointment to the post of district judge is made by the governor of the state in consultation with the High Court of competent jurisdiction in relation with the state. Only a person who has been in the state judicial service or has been an advocate or pleader for not less than seven years can be elevated to this post. Presently Mrs. Sushma khosla is District and session judge of Bhopal. These two courts are considered subordinate in the hierarchy of Indian judicial system.

There is a pecking order of district level courts or subordinate courts under the High Court of Madhya pradesh. The District Courts or the Subordinate Court judges are generally termed as Subordinate Judicial Service. The state is divided into many judicial districts which are presided over by sessions or district judges who exercise the highest judicial authority in a district and can even try all kind of offences including those punishable by death. Thus the lower judiciary of Bhopal consists of-

 87 courts of District & Sessions Judges

 65 Judicial officers working as Civil Judges (Senior Division)as well as Chief Judicial Magistrates, Additional Civil Judges as well as Additional Chief Judicial Magistrates and Civil Judges (Junior Division) as well as Judicial Magistrates.

-FAMILY COURT:-

A family court is a court convened to decide matters and make orders in relation to family law, such as custody of children. In common-law jurisdictions "family courts" are statutory creations primaril. dealing with equitable matters devolved from a court of inherent jurisdiction, such as a superior court. The Family courts were first established in the United States in 1910, when they were called domestic relations courts although the idea itself is much older. Any one can approach this court but it is advisable to come with a lawyer. The matrimony and divorce related cases are also dealt by Family court. The scope and jurisdiction of family court varies from state to state.

-FASTRACK COURT:-

Besides the traditional court system, a variety of special courts can be set up in the country. Right to speedy trial has been acknowledged to be a fundamental right by the
apex court and as such fast track courts for the same are set up in the country from time to time. Also, there are special courts that deal with legislation on terrorism. While theses courts discharge specialized functions, they also shoulder the burden the judiciary thus helping in reducing the backlog of cases. In a fast-track court, trials are heard frequently and not much longer period is granted in furtherance of date. Speedy trials helps in disposing off the cases fast and delivering timely justice. The purpose for which it is to be appointed is decided by State Government

-LOK ADALAT:-

The term means people’s court. This court has the authority to conduct trials and is presided over by a retired or a sitting judge. The Lok Adalat aims at prompt settlement of disputes relating to various public utility services such as hospital, post, transport, telegraph, water, power and so on. The order issued by the Adalats is unquestionable. Over the years Madhya pradesh has excelled in the disposal of cases with the help of Lok Adalats. It is organized once in a year or two years. This year it was established on 15^th December in the state of Madhya Pradesh. Judges in lok adalat interact with public as an ordinary person and there is no role of a lawyer in a Lok adalat. Parties are invited to go for a compromise or asked if the case can be disposed off.

CONSUMER FORUM

For the protection of consumer rights, three tier quasi-judicial machinery has been set up at the National, State and District level to deal with the consumer disputes in the fields of defective goods deficient services, unfair trade practices, restrictive trade practices, overcharging by the traders and hazardous goods etc. The Act applies to all goods and services and covers public, private, joint and co-operative sectors. The Madhya Pradesh State Consumer Disputes Redressal Commission was constituted in the year 1990, which consists of the President, who is or has been a Judge of a High Court and two other members, one of whom shall be a woman, with the qualifications as prescribed by Section 16 (1)(b) of the Act. On 10.1.1990 Hon’ble Shri Justice Y.B. Suryavanshi, Chariman of the Arbitration Tribunal was appointed and given additional charge of the President of the Commission, who discharged his functions and duties till 31.3.1992. Thereafter, Hon’ble Shri Justice V.S.Kokje (Presently Governor of Himachal Pradesh) a sitting Judge of High Court was appointed and given additional charge.

National commission is situated in New Delhi, Bhopal is blessed with M.P. state consumer dispute redressal commission and a district forum.

-District consumer dispute redressal forum, Bhopal:-

Court of original jurisdiction and cases relating to Bhopal district can be filed here.

-M.P.State consumer dispute redressal commission:- The State Commission has got the administrative control over the District Forums. Appeals from the cases decided in district forum can be heard here.

NASOOL:-

The word Nasul is used for land owned by the local development authority for development purposes, according to the masterplan of the city. The authority either acquires or gets the land from the government. Therefore, Nazul land is situated within the municipal limits of the authority. The authority can either lease it or auction it in the open market to any institution or individual with the government’s consent. The government can also auction the property for developing a residential colony or educational institution. Every city has a land allotment committee that undertakes the work of auction and leasing of Nazul land. The disputes relating to such matters are tried in a separate Nasul court.

MP WAQF TRIBUNAL, BHOPAL:-

Apart from courts, there are various tribunals that form a part of the Indian judicial system. The legislature has been empowered by the constitution to provide by law
for adjudication or trial by tribunals of any disputes and offences
for various matters such as taxation, land reforms, industrial and labour
disputes et al. As per the latest position taken by the Supreme Court,
direct appeals from the tribunals lie to respective High Courts and
then to the apex court. MP Waqf tribunal is empowered to deal with cases relating to property involving one party as Muslim. Muslim property cases are dealt in waqf. Usually Urdu is being used as a language of communication, but all the documentary work is done on the basis of state language and in M.P. it is done in Hindi. It is not necessary to appoint a muslim lawyer for it, lawyer belonging to any other religion can also be appointed. It is just that a branch has been separated to deal with muslim property cases. Usually Muslim judge is appointed here, so as not to make him bias

GENERAL OBSERVATION OF FUNCTIONING OF TRIAL COURT:-

Functioning of Trial Court Trail court is very important to be understood by a legal practitioner or an advocate, because it is the first court where a case is first filed and on the decision of the Trial court, then further appeal is made in higher courts. The plaint filed in the court is given to the defendant and are asked to appear before the court with a reply to the plaint. When the defendant comes and files the reply, proceedings of the case starts. In the proceedings proper system is used and respective courts arrives with the decision. In case if any of the party is not satisfied with the decision of the court then it can appeal for it in the higher court. File includes various forms, brief facts by the plaintiff along with the allegations and prayer to the court, reply to the allegations and prayer to cancel the case by the defendant, affidavits by both the parties, recording of the statements of the witnesses and their cross and re-examinations in civil suits. Now in the case of appeal new file is not formed, the statements recorded earlier are only relied upon in the higher court though the unsatisfied party presents the additional grounds in the appeal. This is generally observed in the civil suits.

The various forms such as Memo (VAKALATNAMA), Memorandum of Understanding (RAZINAMA), and Affidavit all are to be produced before the court, if any statement of witness is to produce before the court, it has to be testified and approved by the Oath Commissioner.The Supreme Court and the High Courts deal with both civil and criminal
cases but courts have been divided into two when it comes to the lower
judiciary- one dealing with civil cases and the other dealing with criminal
cases.

The criminal branch of lower judiciary is headed by a sessions court. As per the code of criminal procedure, a sessions court is to be established for every sessions
division (which is essentially a district or a group of districts) by
the state government. This is followed by Courts of judicial magistrates
of first class in non metropolitan areas (areas with a population of
less than one million) and courts of metropolitan magistrates in metropolitan
areas. Subordinate to them are courts of judicial magistrates of second
class. Sessions judge and assistant sessions judge are appointed to
sessions courts, the latter being subordinate to the former. Similarly,
in courts of judicial magistrates, additional judicial magistrates are
subordinate to the chief judicial magistrate. Every chief judicial magistrate
is subordinate to the session judge as per CrPC. A magistrate of second class may not pass a sentence exceeding imprisonment of one year. Similarly, a magistrate of first class may not pass a sentence of more than 3 years.
A session judge can pass an order of execution but the same has to be
necessarily confirmed by the concerned High Court. The civil branch of lower judiciary is headed by a district court. As is clear by the name itself a district court is to be established in each district according to the Civil procedure
Code. Other courts subordinate to the district courts are the sub-divisional
court and Munsiff’s court with the latter being subordinate to the
former.

EXPERIENCE DURING THE INTERNSHIP

The Trial court in reality is different from the court generally shown in the Movies. It seems more like a fish market, where every lawyer sits in the court premises on benches waiting for clients, depicting equality among all professionals. Senior and junior sitting on the same footing without any role of authority. It can be termed as people’s court in a true sense. In movies the job of lawyer is more similar to detectives which is a far cry from the reality. The job of a lawyer is only to assist a party in a suit regarding the proceeding and appear before judge on his behalf. Every Lawyer maintains a court diary, which proved handy and very useful as all the details of the case is entered in the diary with proper date and it’s petition number. It proves to be useful, as respective cases are recorded by the lawyer date wise and it saves time to think and search of the cases as per the present date. During my internship, I learned to maintain the lawyer’s diary, I learned how to take dates from the court from the registers. I myself has submitted an application of Non-appearance on behalf of my Sir before the Honorable judge. It was a learning experience as Juniors take one year for learning the court proceedings which I could learn during the period of Internship. Though One month was not sufficient but it was enough to learn about the basics. And to gain mastery we have to start with the basics. Basics can be learned only in Trial court. I have learned the Basics of Drafting. I could get to know about fasttrack court and Lok adalat which is an emerging concept. I met the Managing director of M.P.Police housing corporation. I really tried hard to Learn. It was adventurous for me as everything was unpredictable. Every Client comes with a new case, new situation, a new problem and which doesn’t have any perfect answer. I also experienced the expressions and thoughts of the Honorable Judges. When they are in a good mood, they will tell you how to do the things correctly but if not then they will scold you for the simple mistakes you have done. About Advocates I experienced that it is not easy to work as an advocate, it requires a lot of dedication and hard work, only then you can achieve success, and most importantly social recognition.

I was strictly advised to come in formal dress. every other lawyer was wearing court uniform to appear before the court.

This was a common practice among all advocates to never come on time and keep their clients waiting before the court. They also would never present W.S. (Written Statement) before the court on time, and also the witness on time, and then ask the court to issue a further date for next hearing. It was a little difficult to work in the court because all the work was done in Hindi and name of the writs and provisions, all the documents were in Hindi. In the office I learned all the official work, filling TALWANA, VAKALTNAMA etc. All these documents are very important and an advocate must know how to fill them and use them, TALWANA is used for many things such as for issuing Attach Warrant, issuing notices etc.

I also learned that it is very important to be always reading cases and new

enactments, keep yourself always sound-minded, and while dealing with a case read the facts of the case very carefully and try to find all the loopholes and then use them in your favour, also while cross questioning with the witness never allow him/her to be confident ask them twisted questions so that they become nervous and are not able to answer properly.

Chilling away from Home

2012-12-07T22:14:00.002+05:30

There is a time when you feel like going away from your family, away from all the noise, scolding and daily violence that takes place between you and parents to find some peace but when you move out of your shell, you have to accept the non acceptance of your nature by others, you have to struggle every moment to get recognition and then you realize that home is the only place where the actual peace lies and family is the real supporter.

How different and unique our life is, it teaches us many lessons in a manner where it is important to commit mistakes in order to enrich our level of self incarnation. Committing mistakes is important for understanding the value of people who are there to care for you and you don’t realize it when they are near you. One of this mistake is an idea of moving away from the parents for finding peace. I have got many friends who are staying with their parents but they wants to go some place away from their parents for studies. I had the same opinion few years back. I wanted to go away. I wanted to find peace and happiness away from my family. I was tired of daily fights and family disputes. I started feeling depressed, tensed and thus toned my mind with a negative vibes. I started thinking that i can be happy without them. I was not mature enough to understand the deep meaning of the thoughts that i had. It was a childish desire to go away. I was always an introvert and shy person, for whom communicating with people was very difficult. When i moved out of my shell, i could realise that no one will support you until they have got some self interest. You will be used in the manner you can not even deny even when you know the purpose. The world is so selfish. It is so different from whatever that can be seen. when one goes away from the family for any purpose (education, job etc) it is very difficult to restrain oneself from getting swayed in the river of complete independence and not indulging in the wrong ways like sex, drinks, drugs, late night parties and ea touts. Now a days it is not a big deal and also not a big issue to get involved into all these things. In fact if you are flexible enough to adopt yourself in such an environment, you would be welcomed happily but if you resist in any manner you will be hated like a jerk and left alone. And it is very difficult to be alone. It is difficult to stand alone. And thus many people falls in such traps. But i would say better to be alone than getting indulge into all bad things with bad people. Better to be alone than being with such foolish people who are wasting their life on such fucking things. On this point i can recall one joke which i would like to quote here During sex, the couples help each other get naked, after sex they do it on their own, moral is no one helps once you are fucked. So if you think that your best buddies with whom you are doing all these bad things are gonna help you out then you are wrong, they are like the birds, who will fly as soon as they find any bad signal. Only family and relatives can be the real people whom one should trust. So if you think that you are cool because you drink, have sex, do night outs then trust me you are fucked up. Don’t do any act which you cannot share with your parents.

WHY FDI IN MULTI BRAND RETAIL SHOULD NOT BE ALLOWED: A CONSTITUTIONAL PERSPECTIVE

2012-10-01T13:27:00.000+05:30

Why FDI in Multi brand should not be allowed?

FDI‘ means investment by non-resident entity/person resident outside India in the capital of an Indian company under Schedule 1 of Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations 2000.[1] Entry into single brand retail is allowed in 2006 upto 51% that too is subject to some pre conditions:- company should be the owner of the product and the products should be branded during manufacturing[2]. There are many foreign companies that have entered Indian retail sector through single brand like Reebok, nike. Single brand deals with one particular line of product to be sold under the single brand name to the end users for example reebok and nike sells shoes and related products in India. Multi brand deals with different lines of products to be sold to the end users. For example Indian company reliance is a multi brand company dealing in Jewellery, food stuffs, petrol, mobile, cloths etc. There are many reasons why FDI in multi brand should not be allowed at this time in India:-

MONOPOLY

Being a multinational multi brand company, it can increase the competition in the domestic market, which leads to closure of unorganised sector which contributes 60% to the Indian retail sector. Unorganised sector is not competent to deal with innovative techniques. While these marts will enjoy economies of scale, domestic players will be forced to reduce the price and thus bear losses. Within span of time they will be kicked out and exploited. A similar instance has happened in US. Walmart in us follows a strategy of acquisition. They acquire small traders and charges lower prices initially, thereby reduces the competitors and creates dominance or monopoly and increases the prices later on.

In case of Rodriguez cuervos v. Wal mart stores inc walmart tried to create monopoly in porto rico

grocery chain in Puerto Rico by acquiring Supermercados Amigo, Inc. (Amigo), the largest. The porto rico department of justice did not accept this, as this will exploit the domestic retailers. Creation of monopoly is against the rule of free trade.

The entry of such marts will violate the Article 19(1)(g)[3]of the Indian domestic retailers and it will violate article 14(Right to equality), 39(b)(that the ownership and control of the material resources of the community are so distributed as best to subserve the common good)

and 39(c)( that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment) of the constitution. No person shall be abridged of it’s fundamental rights and fundamental rights are tools for implementing the directive principles, specified in part IV of the constitution. Thus any policy or decision or law or order abridging people of these rights in a justified manner shall be deemed to be void. This was held in Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. AIR 1973 SC 1461 Because of monopoly the means of production shall vest in few hands this will create unequal distribution of resources.

UNEMPLOYMENT

Indian retail sector contributes 13% to GDP and employs 6% of nation’s workforce. Indian retail is valued at US$450 million. Of this organised retail forms only 6.5%.[4]So the majority contribution is from the unorganised sector, the persons employed in unorganised sector are so incompetent that they cannot be employed in any other field. Efforts should be made to convert unorganised sector into organised sector then only it would be able to compete foreign entrants. But without putting any effort giving ticket to foreign players In multi brand retail will destroyed already imbalanced India’s retail sector. It is a violation of fundamental right of right to livelihood, defined under Article 21[5]of the constitution and violation of directive principle of article 39(a)( that the citizens, men and women equally, have the right to an adequate means to livelihood) of the constitution.In Balco Employees Union (Regd.) vs Union Of India & Ors on 10 December, 2001

Supreme Court considered the complex questions relating to effect of disinvestment on the employees and workers and whether the questions of policy and administrative matters and decision can be heard by Supreme Court.Balco was incorporated as a government of India undertaking in 1965 under companies act 1956. In 1996 public sector disinvestment commission was established which in it’s 2^ndreport submitted that balco should be privatised. The decision adversely affected employees, who because of loss of employment filled the case. It was held that the workers interest should be protected.In the similar passion Government should protect the Interest of unorganised retail traders. Such multinational companies are equipped with technological advancement and are mostly machine intensive and thus eliminates manpower. They uses economies of scale for lowering the prices, which adversely affects the profit margin of the domestic traders, who will be displaced because of incompetency to compete. Small and unorganised retail traders will be displaced and thus their right to livelihood should be protected.

In Olga Tellis & Ors vs Bombay Municipal Corporation AIR 1985 Right to livelihood of pavement and slum dwellers was protected against the forcible eviction and removal of their hutments under Bombay municipal corporation act which deprived them from their means of livelihood and consequently the right to life. Their rights under article 21, 19(1)(e) and (g), Article 39(a) was protected through this case.

In Radio House And Ors. vs Union Of India (Uoi) And Anr. AIR 2007 the subject matter was corporatisation of the retail sector by bringing Foreign Direct Investment ('FDI' for short). The cause of the retail traders is focused in this petition. The petitioners' grievance is that if the foreign companies are permitted to enter into the field of retail trade, the business of retail traders in India would be affected adversely; it results in the deprivation of their solitary source of livelihood. It was held that it is for the Government to evolve a policy to safeguard the interest of the retailers. It is trite position in law that the Court should not substitute its wisdom for the wisdom of the Government in

policy matters.

All the matters relating to FDI shall be dealt by Competition commissions[6]. Competition law believes in the premise that the unrestrained interaction of the competitive forces in the market will yield the best allocation of economic resources, lower prices, improve quality and maximum material progress for the citizens. Thus, the principal objective of the Competition Law is to make the market economy work better by stopping vested interests from obstructing markets. The purpose, therefore, is to maintain and protect the competitive process and to ensure fair and healthy competition in the market. Section 3[7]of The Competition Act,2002. Section 3 of the Act prohibits any agreement with respect to production, supply, distribution, storage, and acquisition or control of goods or services which causes or is likely to cause an appreciable adverse effect on competition within India. Under Section 3, any such agreement is considered void. The term "agreement" is broadly defined and includes any arrangement, understanding or concerted action, whether or not it is formal, in writing or intended to be enforceable by legal proceedings. Section 4[8]of the act prevents from abuse of dominant position. In case of Reliance Big Entertainment Limited etc. etc.Vs.Respondent: Karnataka Film Chamber of Commerce and Ors. It was held that no organization can abuse it’s dominant position. In a study it was found that walmart in US has bribed the state Government on many occasions[9], and which was accepted because of it’s dominance, as 60% retail in Us is now owned by Walmart. And there is a fear of the same in Indian market where, most of the retail is in unorganized sector and who are unable to compete with such big giants and thus it is obvious that these foreign entrants can gain a dominant position to exploit India

ARGUMENTS AGAINST POLICY PERMITTING FDI IN MULTIBRAND RETAIL:-STATE DISCREATION

Under the policy It has been mentioned that India has a federal form of Governance and FDI policy is an enabling framework and it remains the prerogative of the states to adopt it. Under the policy state has been given discretion whether to implement it or not.

In Fatehchand Himmat lal(M/s) v. state of Maharashtra AIR 1977 it was held that to defend weaker section from social injustice and exploitation, the state under article 301 of the constitution can derecognize certain economic activity as trade or business.

This may to some extent may pacify the state Governments opposed to big retail. However the industry knows that as per International trade norms, member countries have to provide National treatment. Being a signatory to Bilateral Investment promotion and protection agreement (BIPA)[10]India has to provide National treatment to the investors. Agreements with more than 70 countries have been signed by India. Industries will use the legal action to force states to comply. Through a writ of mandamus anything can be get done by Government.

In case of Marbury v medison 5 US 137 (1803) The writ of Mandamus was issued. William Marbury sought a judgment from the Supreme Court forcing the Secretary of State, James Madison, to deliver a justice of the peace commission former President Adams had awarded Marbury immediately leaving office. Delivery was to be arranged by the Secretary of State's office, which, ironically, had been under (Chief Justice) John Marshall's control at the time the commission was signed. Due to time constraints, the task fell to the incoming Jefferson administration, which refused to execute Adams' orders. Court opined that Marbury was entitled to his commission because it had been properly approved, signed and sealed by President Adams; however, the Court lacked jurisdiction to order Madison deliver the commission. The case would have to be addressed in a lower court first, then appealed if necessary (Marbury never pursued this step).

BIG CITIES

The argument that the Multi brand retail shall be allowed only to the cities having population of more than 1 million is flawed. Virus of retail spread even if the promise is to keep it confined to major cities. Recently new York times exposed how walmart(World’s number 1 retail giant) had captured 50% of Mexico’s retail market in 10 years. As per NYT walmart paid bribes and internal enquiry into the matter was suppressed at corporate headquarters in Arkansa.[11]

30% FROM SMALL TRADERS

Policy says that The retailers (both single and multi-brand) shall mandatorily source at least 30% of their goods from small and medium sized Indian suppliers(having capital investment of not more than $ 1 million). This will cover only wholesalers, retailers again would be sweeped out.

MIDDLEMAN AND STORAGE

Instead of reducing the number of intermediaries big retailers brings in a new battery of middleman-quality controllers, standarisers, certification agency, processor, packaging, consultant etc. Middleman shall walk away with profits.

Also the argument that FDI in multi brand will provide adequate scientific storage is again flawed as this will motivate Hoarding. The FDI in storage is already allowed but such it has never provided any safety to rotten food.[12]

[1]FEMA guidelines, Indian companies, http://rbi.org.in/Scripts/BS_FemaNotifications.aspx?Id=174

[2] FDI in single brand, Department of industrial policy, http://dipp.nic.in/English/Policies/Policy.aspx

[3] Freedom to profess any trade and profession, constitution of India, Eastern book publishing

[4] A.T.Kearney, Global annual retail development index

[5] Right to life, article 21, part III, Constitution of India, eastern book publishing

[6] Consolidated FDI policy, Department of industrial policy and promotion, http://dipp.nic.in/English/Policies/FDI_Circular_01_2012.pdf

[7] Anti competitive agreement, The Competition Act,2002, as amended by The Competition (Amendment) Act,2007

[8] Abuse of dominant position, The competition act 2012, as amended by the competition (Amendment) Act 2007.

[9] Andrew martin, Wal mart vows to fix its control,The new York times, published on April 12 2012.

[10] Bilateral investment promotion agreement(bipa), http://www.finmin.nic.in/bipa/bipa_index.asp

[11] Stacey mishell, The Walmart de Mexico Scandal: Here’s a Punishment that Befits the Crime

http://www.ilsr.org/walmart-de-mexico-scandal/

[12] agrarian crises,http://agrariancrisis.in/2012/09/15/made-in-the-united-states/