Indian Legal System For Entrepreneurs

INDIAN LEGAL SYSTEM FOR
ENTREPRENEURS
by :
DR. T.K. JAIN
AFTERSCHO☺OL
centre for social entrepreneurship
sivakamu veterinary hospital road
bikaner 334001 rajasthan, india
FOR – CSE & PGPSE STUDENTS
(CSE & PGPSE are free online programmes
open for all, free for all)
mobile : 91+9414430763
5 DECEMBER 09 www.afterschool.tk 1
My words.....
My purpose here is to give an introductory lesson on legal system – which will

help entrepreneurs. Ideally law should be small & easy to understand – so that
people can implement it by heart. Unfortunately, it is written in a verbose and
complicated language, that only experts can understand it. It is really
unfortunate that some people feel pride on legal terminology (which contains
lot of technical & foreign words, which can easily be replaced by simple
words) I shall try to present it in simplified form, and let us pray that some
person simplifies the Indian legal system. Let us change the society, change the
world. Go with positive spirit. Please pass this presentation to all those who
might need it. Let us spread knowledge as widely as possible. I welcome your
suggestions. I also request you to help me in spreading social entrepreneurship
across the globe – for which I need support of you people – not of any VIP.
With your help, I can spread the ideas – for which we stand....
What are the main laws relating to
weights and measures ?
Standards of Weights and Measures

(Enforcement) Act, 1985
Standards of Weights and Measures (Packaged

Commodities) Rules, 1977
What is legal metrology ?
Legal Metrology is the name by which the law

relating to weights and measures is known in
international parlance. Legal Metrology is very
vital for scientific, technological and industrial
progress of any country. It includes the
establishment of national standards of weights
and measures an their proper enforcement
What is the role of OIML ?
The International Organization of Legal

Metrology (OIML) is an intergovernmental
treaty organization consisting of various
countries. It was established in 1955 in order to
promote the global harmonization of legal
metrology procedures.
Who enforces weights and
measures under weights and
measures act – centre or state?
Either can enforce

after the 42nd Amendment to the Constitution
the enforcement of wights and measures has
been placed under the concurrent list to the
Constitution.
Which are the bodies under the
directorate of weights and
measures ?
1. Indian Institute of Legal Metrology;

2. Regional Reference Standard Laboratories,
at Ahmedabad and Bhubaneswar, etc.
3. Regional units at Kolkata, Mumbai,
Chennai and Delhi.
Which are the apex govt. Bodies
for enforcement of wights and
measures in India ?
•Ministry of Consumer Affairs,Food and
Public Distribution,
•Directorate of Weights and Measures, New
Delhi
•the Controllers of Legal Metrology (in
different states)
•The Directorate of Weights and Measures
What is calibration ?
section 2(a): it means all the operations which
are necessary for the purpose of determining
the values of the errors of a weight /
measure /to determine the other metrological
properties of such weight or measure, and
includes fixing of the positions of the guage-
marks or scale-marks of a weight or measure,
or in some cases, of certain principal marks
only, in relation to the corresponding values of
the quantity to be measured.
What is reference standard ?
the set of standard weight or measure which is

made or manufactured by or on behalf of the
Central Government for the verification of any
secondary standard [Section 2(t)].
What is secondary standard under
weights and measures act ?
Secondary standard means the set of standard

weight or measure which is made or
manufactured by or on behalf of the Central or
State Government for the verification of any
working standard [Section 2(x)]
Is it necessary for importer of
weights
every person who intends to commence or
continue business as an exporter or importer of
any weight or measure, such as balances for
testing weights, weighing and measuring
instruments, shall register himself with the
Director of Weights and Measures in the
prescribed form together with fee not
exceeding ten rupees
What are the main rules relating to
STANDARDS OF WEIGHTS AND MEASURES
(PACKAGED COMMODITIES) RULES, 1977
Rule 4 :Prepacked packages must contain

declarations regarding weights The
declarations have to be made on every package
(Rule 6)
rd
commodities specified in the 3 Schedule
msut be in standard quantities as are specified
in that Schedule..(rule 5)
Are there requirements relating to
display size of packaged
commodities ?
Yes
The height of letters in the declaration should
not be less than 1mm height. When blown,
formed, moulded, embossed or perforated the
height of letters should not be less than 2mm.
However, the width of the letter or numeral
should not be less than one third of its heights,
except in the cases of numerals/letters specified
under the rule 7 & other provisions
Is it necessary to mention address
of manufacturers on packaged
commodities ?
Yes
complete address of the manufacturer, or
where the manufacturer is not the packer, the
name and address of the manufacturer and the
packer and in case of imported packages, the
name and address of the importer must be
given (rule 10) shorter address is allowed if
registered (rule 36)
For whom is registration under
weight and measures act
necessary ?
Every individual, firm, Hindu undivided

family, society, company or corporation who
or which pre-pack any commodity or imports
any commodity for sale, distribution or
delivery is required to make an application for
registration
Can weights / measures of below
standard weight be prepared ?
No
Manufacture of non-standard weight or
measure is prohibited.
What is the meaning of principal
display panel ?
total surface area of the package where the

information is required to be given.
Who is a dealer under weights and
measures act ?
Sec. 2(c) : the person who is in the business of

buying, selling, supplying, importing or
distributing any weight or measures
What is working standard under
weights and measures act ?
set of standard weight or measure which is

made or manufactured by or on behalf of
Government for the verification of any
standard weight or measure, other than a
national prototype or national reference or
secondary standard [Section 2(ze)].
What is the meaning of stamp in
weights and measurea law ?
A mark (on weight / measure)

(i) certifying that the weight or measure
conforms to the standard
(ii) indicating that any mark which was
previously made thereon has been obliterated.
Are we bound by international
systems of wights and measures ?
Yes
India is a signatory to the Metric Convention of
1895
What is capital account
transaction?
Any transaction which alters the assets or

liabilities including contingent liabilities,
outside India of persons resident in India or
assets or liabilities in India of person resident
outside India and includes (sec. 2e)
What are current account
transactions under FEMA?
Receipts or payments in connection with
foreign trade, other current business, services
and short term banking and credit facilities in
the ordinary course of business; payments due
as interest on loan and as net income from
investments; remittances for living expenses of
parents, spouse and children residing abroad
and expenses in connection with foreign travel,
education and medical care of parents, spouse
and children (sec. 2j)
What are the regulations on
current account transactions ?
Current account transactions through

authorised dealers are permitted.
Rules are : Foreign Exchange Management
(Current Account Transactions) Rules, 2000
What is foreign security?
shares, stocks, bonds, debentures or any other

instrument denominated or expressed in
foreign currency (sec 2o)
What is foreign exchange as per
sec 2n of FEMA?
Foreign currency + deposits, credits, balance
payable in foreign currency, drafts, travellers
cheques, letters of credit, bills of exchange
expressed or drawn in Indian currency but
payable in any foreign currency.
Any draft, travellers cheque, letters of credit or
bills of exchange drawn by banks, institutions
or persons outside India but payable in Indian
currency are not foreign exchange.
Can you deal in capital account
transactions also ?
Yes – if it is upto $ 25000 and is for the

transactions mentioned in schedule I
However, no part this foreign exchange can be
used for remittance directly or indirectly to
countries notified as non-co-operative
countries and territories by Financial Action
Task Force (FATF)
What are the permissible foreigh
exchange transactions for Indian
residents ?
1. investment in foreign securities. 2. foreign currency loans
3. transfer of immovable property outside India 4.
guarantees 5. export, import and holding of
currency/currency notes
6. loans and overdrafts from a person resident outside India;
7. maintenance of foreign currency accounts ;
8. insurance policy / other remittance
9. loans and overdrafts to a person resident outside India;
10. sale and purchase of foreign exchange derivatives
What are the permissible foreigh
exchange transactions by residents
outside India ?
1. Investment in Indian securities
2. Acquisition and transfer of immovable
property . 3. Guarantee
4. Import and export of currency/currency
notes 5. Deposits with / from a person
resident in India 6. Foreign Currency
accounts 7. Remittance outside India of
capital assets
What are the restrictions on
ADR / GDR proceeds ?
ADRs/GDRs are issued on the basis of the

ratio worked out by the Indian company in
consultation with the Lead Manager to the
issue. The proceeds have to be kept abroad till
actually required in India. However, they may
be invested in treasury bills / with authorised
dealers – foreign branches / specified securities
What are the limits for automatic
route for JV / WOS?
JV = joint venture
WOS = wholly owned subsidiary
the limits are :
1. In case of company : not exceeding 300
per cent of the net worth of the Indian party
2. In case of partnership : not exceeding 200
per cent of the net worth of the Indian party
Can Indian company acquire
shares of a foreign company in
exchange of ADR / GDR ?
YES
but as per the Scheme for issue of Foreign
Currency Convertible Bonds and Ordinary
Shares (through Depository Receipt
Mechanism) Scheme, 1993,
What are the funds which may be
used for JV / WOS abroad ?
1. from AD Bank in India;
2. capitalisation of exports;
3. swap of shares 4. proceeds of External
Commercial Borrowings (ECBs) / Foreign
Currency Convertible Bonds (FCCBs);
5. in exchange of ADRs/GDRs
6. EEFC account ; 7. from the funds of
ADR / GDR issues
What are current account
transactions under FEMA ?
Section 5 of the FEMA allows any person to

sell or draw foreign exchange to or from an
authorised person if such sale or drawal is a
current account transaction as defined under
Section 2(j) of the Act. Drawal includes L/C,
international debit / credit card and other such
transactions (subject to some restrictions)
What are the cases, when drawals
is not permitted ?
Drawals from the following are not permitted :
1. From lottery winnings etc
3. for purchase of lottery tickets etc.
4. Payment of commission on exports made towards equity
investment in Companies.
5. Commission on exports under Rupee State Credit Route (
except upto 10% of invoice of exports of tea & tobacco).
6. Payment related to ‘call back service’ of telephone.
7. interest income from Non-resident Special Rupee Scheme
Account.
When do you need prior approval
of central government for foreign
exchange transactions ?
For all the matters mentioned in Schedule II of

FEMA. However, this does not apply to the
cases where the payment is made out of funds
held in Resident Foreign Currency Account
(RFC) of the remitter.
What are the sectors, where FDI
funds cannot be used ?
1. Business of chit fund
2. Nidhi Company
3. Agricultural or plantation activities
4. Real estate business, or construction of farm houses
(exclusing townships, roads, bridges, etc. )
5. Trading in Transferable Development Rights (TDRs)
6. lottery / gambling etc.
7. retail trading
8. atomic energy .
What is the limit for FCCB in
automatic route ?
Foreign Currency Convertible Bonds (FCCBs)

not exceeding US$ 500 million (subject to
some restrictions)
When do you need prior
permission from RBI for foreign
exchange drawals?
1. Release of exchange exceeding US$ 10,000 or its equivalent in
one calendar year, for one or more private visits to any country
(except Nepal and Bhutan).
2. Gift remittances exceeding US$ 5,000 per donor per annum.
3. Donation exceeding US$ 5,000 per remitter/donor p.a.
4. for US$ 5,000 for persons going abroad for employment.
5. for emigration exceeding US$ 5,000 or amount prescribed by
country of emigration.
6. Remittance for maintenance of close relatives abroad
Is cartel allowed in India ?
Yes – but it is regulated by competition act

“Cartel”( Section 33(1)(d)) is an association of
producers, sellers or distributors, traders or
service providers who, by agreement amongst
themselves, limit control or attempt to control
the production, distribution, sale or price of or,
trade in goods or provision of services.
What is the difference between the meaning
of consumer in consumer protection act from
competition act ?
Under the Competition Act even if a person

purchases goods or avails of services for
commercial purpose, he will be a Consumer,
whereas for purposes of Consumer Protection
Act, a person purchasing goods/ availing
services for commercial purposes is not a
“Consumer” and can not seek relief under
consumer protection Act.
Do government companies also
come within the purview of
competition act ?
Yes, although sovereign function of

Government are excluded but Government
Departments performing non-sovereign
functions for consideration are subject to
jurisdiction of Competition Commission of
India .
What is the difference between the meaning
of services in consumer protection act from
competition act ?
Under the Competition Act, the services of
industrial or commercial nature also fall within
the scope of the Act whereas under the
Consumer Protection Act, the services of
commercial nature or for business or industrial
purposes are excluded for interpreting
deficiency in the supply thereof and for
determining compensation, if any, payable to
them
Can firms in the same industry
make an agreement to limit the
production of goods to a certain
limit ?
No, any agreement in respect of production,
supply, distribution, storage, acquisition or
control of goods or services, which causes or is
likely to cause an appreciable adverse effect on
competition is not allowed in competition act
2002. Section 3(2) further declares these
agreements, which fall in sec. 3(1) of
competition act 2002, to be void (invalid).
What types of agreements can cause adverse
impact on competition as per competition act
2002 ?
1. tie-in agreement;
2. exclusive supply agreement;
3. exclusive distribution agreement;
4. refusal to deal;
5. resale price maintenance;
What is tie in agreement?
“tie-in agreement” includes any agreement requiring a

purchaser of goods, as a condition of such purchase,
to purchase some other goods.
Case : a gas distributor required a consumer to buy a
gas stove as a pre condition to obtain connection of
domestic cooking gas. [Chanakaya and Siddharth Gas
company, In-re RTP 11/1985 decided by (MRTP
Commission on 27.1.1985)]
What is exclusive distribution
agreement ?
Requiring a distributor not to sell the goods of

the manufacturer beyond the prescribed
territory
case : Vadilal Enterprise Ltd.(1998 )
What is resale price
maintenance ?
An agreement to sell goods on condition that

the prices to be charged on resale by the
purchaser shall be the prices stipulated by the
seller
(lower price is not allowed)
case : -India Cement Ltd. RTP Inquiry 48 /
1985
What is “refusal to deal”
any agreement, which restricts the persons to
whom goods are sold or from whom goods are
bought.
Case: an agreement which provided that the
franchisees will not deal in products or goods
of similar nature for a period of three years
from the date of agreement within a radius of
five kms from showroom was an exclusive
dealing agreement. DGIR v. Titan industries
5 DECEMBER 09
(2001)
www.afterschool.tk 50
What is exclusive supply / dealing
agreement ?
any agreement restricting dealing in any goods
other than those of the seller
Case : a manufacturer asked a dealer not to
deal in similar products of its competitor
directly or indirectly and discontinued the
supply on the ground that dealer also dealt in
product of suppliers’ competitor’s goods
[Bhartia Curtec Hammer Ltd.(1997)]
Is predatory pricing allowed in
India ?
NO (Restricted under competition act 2002)

“predatory price” : = sale of goods or services,
at a price which is below the cost of
production, with a view to reduce competition
or eliminate the competitors.
What is the difference between
MRTP Act & Competition act ?
under the new law (competition act), the combinations are only
regulated (restricted under MRTP act) & anti-competitive
agreements and abuse of dominance are prohibited (as in
MRTP Act). Under the MRTP Act prior to 27.9.91,
undertakings of certain size were required to be registered and
such undertakings were required to seek prior approval of the
Central Government before expansion. In the new law, there is
no requirement of registration & there is no need to have prior
approval of the Central Government. CCI will only examine
whether the combination has an adverse effect on competition.
What is CCI?
Earlier this term denoted Controller of capital

issues (which has now been abolished). Now
this term means competition commission of
India.
Section 8 : CCI has a Chairperson and not less
than two and not more than six other Members
If two MNCs have an agreement in London about their pricing
strategy in India -where by they fix a price for India – will it
come under competition act ?
Yes, it may come

The Competition Commission of India will
have jurisdiction if agreement / combination
entered into by them has an appreciable
adverse effect on competition in India.
What are the restrictions on mergers of two large
companies in same industry in India – if this results in
huge market share for the new company?
Competition Act 2002 prohibits any person or

enterprise from entering into a combination
which causes an adverse effect on competition
in India
What is a presumption?
A presumption is a rule of law that courts or

juries may draw a particular inference from a
particular fact or from particular evidence
unless and untill the truth of such inference is
disproved.
How many types of presumptions
are possible ?
3 types :
1. presumption of law
2. presumption of facts
3. mixed presumptions
What is factum probandum?
There are two types of facts in a case – facts

directly related and indirectly related.
Directly related facts are called factum
probandum
What is Circumstantial evidence?
These are indirect facts related to a case.
What are the secondary evidences
in Indian Evidence Act (sec. 63)?
certified copies of the document
copies made from the original by mechanical
processes which in themselves ensure the
accuracy of the copy, and copies compared
with such copies (PHOTO COPY )
copies made from or compared with the
originalcounterparts of documents
Oral account of document by a person who has
seen the document
What are the matters, on which
you cant ask others to give
evidence ?
The following :
Evidence of a Judge /Magistrate (Section 121)
Communications during marriage; (Section 122)
Affairs of State; (Section 123)
Official communications; (Section 124)
Source of information of a Magistrate or Police officer about
crime; (Section 125)
professional communication (Sections 126 and 129).
What are the cases when opinion
of witness on a question whether
of fact or law is relevant?
1. opinion of expert (sec. 45)
2. in case of handwriting – the person who
knows the handwriting
3. in case of digital signature – the person who
has given the digital signature
4. in other cases, where a person has special
knowledge of the case
confession and admission?
All confessions are admissions but not vice

versa
Can self exculpatory become a
confession?
No
Can confession become an
evidence against persons other
than confessor?
No
(exception : as per sec. 30 – co-accused /
jointly accused )
What is an admission ?
Admission means conceding something against

the person making the admission
What is Res gestae ?
facts which though not in issue, are so

connected with a fact in issue as to form part of
the same transaction
Can every fact be considered in
evidence ?
No
no facts other than those having rational
probative value should be admitted in evidence
What is fact in issue (law of
evidence)?
any fact from which, either by itself or in

connection with other facts, the existence, non-
existence, nature or extent of any right,
liability, or disability, asserted or denied in any
suit or proceedings, necessarily follows.
What is the effect of
acknowledgement on period of
limitation?
The period of limitation will start from the date

of acknowledgement (sec. 18 of law of
limitation)
What are the days which are excluded from
period of limitation, when we are calculating
the period of limitation?
1. time spent in obtaining decree

2. time required to obtain consent of govt /
court
3. time spent in a court having no juristidction
4. when the defendent was out of the country –
that time is excluded
Can the parties fix two arbitrators
for their dispute?
No
Although Section 10 of the Arbitration Act
provides that, the parties are free to determine
the number of arbitrators, provided that such
number shall not be an even number. If they
fail to determine the number of arbitrators, the
arbitral tribunal shall consist of a sole
arbitrator.
What are essential conditions of
an arbitral award?
1. it must be signed
2. it must be dated
3. it must be in writing
4. should contain reasons for the decision
How many parts are there in
arbitration & conciliation act
1996?
4 PARTS & 3 SCHEDULES
Part one deals with Arbitration (Sections 2 to 43); Part two
deals with enforcement of certain Foreign Awards (Sections 44
to 60); Part three deals with conciliation (Sections 61 to 81);
and Part four contains supplementary provisions (Sections 82
to 86). Similarly schedule one contains provisions relating to
convention on the Recognition and Enforcement of Foreign
Arbitral Awards; Schedule two deals with Protocol on
Arbitration Clauses and Schedule three contains provisions
relating to Execution of Foreign Arbitral Awards.
WHAT ARE THE FEATURES
OF AN INJUNCTION ?
1. It is a judicial process.
2. The object of this judicial process is to
restrain or to prevent a wrongful act
3. The act restrained or prevented is a
wrongful act.
When does the court permit
rectification of instrument under
specific relief act 1963?
Rectification = removing an error / correction
it is allowed in the followin cases :
1. both parties agree that the instrument didnt
reflect the true intention
2. third party applies for it and both the parties
of the instrument were innocent about the
mistake (read sec. 26)
When does the court rescind a
contract under specific relief act
1963?
1. when the party interested in the contract

applies for it
2. when it is a voidable contract, and the party
which can cancel it applies for it
3. when it is unlawful contract
Is it necessary to cancel the
stamps under Stamp act ?
Yes
Section 12(1)(a) of Indian Stamp act : any
person affixing any adhesive stamp to any
instrument chargeable with duty which has
been executed by another person MUST when
affixing such stamp cancel the same so that it
cannot be used again.
What are the modes of
cancellation of stamp?
As per Indian Stamp act :

1. writing name / signature on stamp
2. writing a line across the stamp
What is instrument under stamps
act?
Section 2(14) a document by which any right or liability is, or

purports to be, created, transferred, limited, extended,
extinguished or recorded.
instrument includes conveyances, leases, mortgages,
promissory notes and wills, but not ordinary letters or
memoranda or accounts.
Is an unsigned draft document an
instrument?
An unsigned draft document is not an

“instrument”
What is a bail under Cr. P. C.
It is temporary release from prison. It is the release of the
accused from the custody of the officers of law and entrusting
him to the private custody of persons who are sureties to
produce the accused to answer the charge at the stipulated time
or date. If a person accused of a non-bailable offence, is
arrested or detained without warrant by an officer-in-charge of
a police station or is brought before a Court, and is prepared at
anytime while in custody or at any stage of the proceedings
before such Court to give bail, such person shall be released on
bail. Such police officer or the Court if it thinks fit may instead
of taking bail from such person discharge him on executing a
bond without sureties for his appearance as may be required
(Section 436)
complaint & plaint ?
Not much
A complaint in a criminal case is what a plaint
is in a civil case
Is the report by a police officer a
complaint ?
Generally No However, Section 2(d) : this
may be taken as a complaint where after
investigation it discloses commission of a non-
cognizable offence.
Police report means a report forwarded by a
police officer to a Magistrate under Sub-
section (2) of Section 173 of Cr. P.C..
Can bail be granted for cognizable
offence ?
No
cognizable offences are generally non-bailable
Non cognizable offences are generally bailable
What is a charge under transfer of
property act?
When immoveable property of A is made a

security for the payment of money with B, and
the transaction does not amount to a mortgage,
B has a charge on the property
Charge = a legal right till the loan is paid
What are the various types of
charges?
A charge may be floating or fixed. A fixed

charge is a charge on specific property but a
floating charge is an equitable charge on all the
assets for time being of a going concern.
What is Lis pendens?
It is a a pending suit, action, petition etc.
What is the doctrine of Lis
pendens?
during the pendency of a suit in a court of law,

property which is under litigation cannot be
transferred.
What is a fraudulent transfer?
Where a person transfers his property so that

his creditors shall not have anything out of the
property
What is Doctrine of Feeding the
Grant by Estoppel
If a person fraudulently or erroneously represents that he is
authorized to transfer certain immoveable property and
professes to transfer such property for consideration, such
transfer shall, at the option of the transferee, operate on any
interest which the transferor may acquire in such property at
any time during which the contract of transfer subsists.
Example : A is not owner of a building but sells it to B for
consideration (B is innocent). Later A actually purchases this
building. Now A is bound to give it to B.
What is mens rea?
Mens Rea a bad intention or guilt

It is the main source of crime
a person is punished for mens rea
What is a Complaint
"Complaint" means any allegation made orally

or in writing to a Magistrate (c(d) of cr.p.c.)
Who is a pleader ?
a person who practises in a Court

(sec. 2(q))
Who is a public prosecutor?
any person appointed under Section 24 of Cr.

P.C. ( Section 2(u))
summons and warrant ?
Those cases which are punishable with

imprisonment for two years or less are
summons cases, the rest are all warrant cases.
Procedure of warrant cases is given in Chapter
19 of Cr. P.c. But that of summons cases is
given in Chapter 20
Mention of 5 types of courts to try
criminal cases ?
High court
court of sessions
st
Judicial magistrate of 1 class
Judicial magistrate of 2nd class
executive magistrate
What punishments can
magistrates order under criminal
procedure code ?
(read sec. 29) :
CJM (chief judicial magistrate) can pass an
order for imprisonment for 7 years
st
Magistrate of 1 class can punish for upto 3
years
Magistrate of 2nd class can punish for upto 1
year
How is arrest made ?
Sec. 46 authorises the person arresting to

confine the body of the person to be arrested
and for this the police officer or other person
may use all necessary means to effect the arrest
if there is forcible resistance.

When does the court issue search
warrant ?
As per sec. 93, the court issues a search warrant
when :
where the Court has reason to believe that a person
summoned to produce any document or other thing will
not produce it
where such document or thing is not known to the
Court to be in the possession of any person
where a general inspection or search is necesary.
However, a search warrant may be general or restricted
in its scope as to any place or part thereof.
What is summary case ?
summary case is a case which can be tried and

disposed of at once. It applies to cases which
can have imprisonment for a term maximum
two years of imprisonment
.

What is a cognizable offence?
It is the case, where the police officer may

conduct investigations without the order of a
Magistrate.

What steps can be taken when
warrant is not executed ?
Action can be taken like :

(i) issuing a proclamation
(ii) attachment and sale of property of that
person, who is absconding

Can a private person arrest
another person?
Yes, if that person commits a non-bailable and

cognizable offence

Can police arrest without
warrant ?
Yes, in some cases

The Cr. P. C. Details the various
circumstances under which a police officer
may arrest a person without a warrant (these
are cognizable offences).
Generally, non-cognizable offence requires a
warrant before arrest.
What is FIR ?
When you want to give information relating to

a cognizable offence to a police officer, then
the police officer will write down this
information and read out it before you. You
have to sign this page and it has to be kept in a
book kept by such officer in such form as may
be prescribed by the State Government, this is
called First Information Report (FIR).
Is registration of will compulsory
under registration act 1908 ?
No. Registration of documents relating to

immovable property & some such matters is
compulsory (not all cases). But, registration of
will is optional.

By what time can I get a
document registered under
registration act 1908?
In four months from date of execution.

When is registration complete
under registration act 1908 ?
Take the document for registration to the

registrar's office. The Registering Officer will
endorse the document with the word
‘Registered’, and sign it, after all formalities
are complete,. The endorsement will be copied
in Register. After registration, the document
will be returned back to you.
Is the document effective from the
date of registration?
No
A document takes effect from its date of
execution and not from date of registration.

Can I get registration anywhere ?
No Documents relating to immovable property

should be registered in the office of Sub-
Registrar of sub-district within which the
whole or some portion of property is situated
Other documents can be registered anywhere.

Should I get a document executed
out of India for registration ?
Yes, A document executed outside India is not

valid unless it is registered in India (read sec.
26 & Nainsukhdas v. Gowardhandas, AIR
1948)

Is a lease for 3 months, also
required to be registered?
No - If a lease is of a very high value but is

neither from year to year, nor for any term
exceeding one year, nor reserving a yearly rent,
it does not require registration under Section
17(1)(d).
but if this lease were for more than 1 year, it
would require registration.
Who can present a will for
registration?
The testator, or after his death, any person

claiming as executor (sec. 40)

What are the documents that dont
require registration?
Documents executed in favour of government.

(All documents executed in favour of
government and government maps shall for the
purposes of Sections 48 and 49, be deemed to
have been registered as per registration act
(Section 90) )

What will happen in case of non-
registration?
Section 49 of Registration Act :if a document

which is rquired to be registered under sec. 17
will not effect transfer of immovable property
and will not create any evidence.

Can an unstamped unregistered
instrument be used for collateral
security?
Yes, an unstamped instrument is not at all
admissible in evidence even for collateral
purpose. But an unregistered instrument
originally unstamped, if duly stamped
subsequently can be admitted in evidence even
though it continues to be unregistered for
collateral purpose
How is a will delivered to the
registrar ?
Any testator (the person making will) may,
either personally or through agent, deposit with
any Registrar his will in a sealed cover
superscribed with the name of the testator and
that of his agent, if any, and with a statement of
the nature of the document.
Registrar will write about it in Book No. 5And
keep the sealed cover in fire-proof box.
The will can be withdrawn by application
5 DECEMBER 09
(Sections 42 to 46).
www.afterschool.tk 120
Can you demand information
from a public servant ?
Yes, there is one PIO (public information officer) in
every government department, you may demand
information from that person. PIO, on receipt of a
request, shall as expeditiously as possible, and in any
case within 30 days of the receipt of the request, either
provide the information on payment of such fee as
may be prescribed or reject the request for any of the
reasons mentioned in sec. 8 & 9 under RTI act 2005

Who is a Chief Information
Commissioner ?
CIC is person of eminence in public life with
wide knowledge and experience in law, science
and technology, social service, management,
journalism, mass media or administration and
governance.
CIC shall be appointed for a term of 5 years
from date on which he enters upon his office or
till he attains the age of 65 years, whichever is
earlier. CIC is not eligible for reappointment.
What is a judgement under civil
procedure code?
(Section 2(9)) of the Civil Procedure Code : it

is the statement given by the Judge on the
grounds of a decree or order

What is a decree under civil
procedure code?
"Decree" is defined in Section 2(2) of the Code

as (i) the formal expression of an adjudication
which, so far as regards the Court expressing
it; (ii) conclusively; (iii) determines the rights
of the parties; (iv) with regard to all or any of
the matters in controversy; (v) in the suit and
may be either preliminary or final.

Who is a judgement debtor?
any person against whom a decree has been

passed or an order capable of execution has
been made. [Section 2(10)]

What is an order ?
Section 2(14) :
the formal expression of any decision of a Civil
Court which is not a decree.

What is the the doctrine of Res
Judicata ?
It puts a bar or restraint on repetition of

litigation of the same issues. It is a based on
the principle of law that there must be a limit
or end to litigation on the same issues.

What is setoff under civil
procedure code?
Order 8, Rule 6 : It is a reciprocal acquittal

of debts between the plaintiff and defendant.

What are interlocutory orders
under civil procedure code ?
The Court may, on the application of any party

to a suit order the sale, by any person, and in
such manner as it thinks fit, of any movable
property, being the subject-matter suit

What is a suit ?
It is a civil action started by presenting a plaint

in duplicate to the Court containing concise
statement of the material facts, on which the
party pleading relies for his claim or defence.
The facts must be presented on affidavit

What is cause of action
a bundle of essential facts which the plaintiff

has to prove in order to sustain his action.
There are 2 things :
1. right
2. infringement of right

What is misjoinder of cause of
action?
If the plaintiffs are not jointly interested in all

the causes of action there is misjoinder of
causes of action.

What is misjoinder of parties ?
There are more than 1 parties as plaintiff or

defendants. Thus the following are essential for
this :
(i) the right to relief must arise out of the same
act or transaction brought by the plaintiffs or
against the defendants, (ii) there is a common
question of law or fact.
What is an affidavit ?
It is a written statement of the deponent on

oath duly affirmed before any Court or
Magistrate or any Oath Commissioner
appointed by the Court or before the Notary
Public.

In how much time should
judgement must be given ?
The court should give judgement within a
period of 30 days from the date on which the
hearing of the case was concluded. However, if
it is not practicable to do so on the ground of
exceptional and extra ordinary circumstances
of the case, the Court must fix a future day
which should not be a day beyond sixty days
(read Kanhaiyalal v. Anup Kumar, AIR 2003
SC 689)
How many types of appeals are
possible in Civil procedure code?
1. Appeals from original Decrees (Sections 96-99-Order

41)
2. Second Appeals (Sections 100-103-Order 42)
3. Appeals from Orders (Sections 104-106, 0.43 r. 1-2)
4. Appeals to the Supreme Court (Sections 109 and 112,
Order 45)

What is revision ?
Section 115 : The High Court may call for the

record of any case which has been decided by
any Court subordinate to such High Court

What is a tort?
‘Tort’ means wrong. But every wrong or

wrongful act is not a tort. Tort is really a kind
of civil wrong as opposed to criminal wrong.
Wrongs, in law, are either public or private.
Suppose someone abuses you & defame, it is a
tort. If some one stabs you, that will not come
in Tort, but it will come in criminal laws.
Essential elements of tort
A Tort has following :

(i) a wrongful act or omission of the defendant;
(ii) the wrongful act must result in causing
legal damage to another; and (iii) the wrongful
act must be of such a nature as to give rise to a
legal remedy.
All these 3 conditions must be fulfilled
What is a prosecution?
To start a criminal suit involving the process

of pursuing formal charges against an offender
to final judgment
example : A procecutes B in the court for
embazzlement.

What is malicious prosecution ?
It is a type of tort. Prosecution is to file a case against a person.

1. There must have been a prosecution of the plaintiff by the
defendant.
2. There is no reasonable and probable cause for that
prosecution.
3. The defendant must have acted maliciously 4. The
plaintiff must have suffered damages due to prosecution.
5. The prosecution must have terminated in favour of the
plaintiff.

What are the types of tort ?
Battery (a type of attack)

attack / assault
bodily harm
Malicious prosecution
Defamation
false imprisonment
Nervous shock
What is battery?
It is the act of using force againt another

person that results in either bodily injury or
offensive touching. It is unlawful physical
contact – which may or may not result in injury

What is defamation?
spoken or written words that falsely and

negatively reflect on a living person's
reputation

What are the judicial remedies
against tort ?
(i) Damages (suppose a person defames you,

you can file a suit for defamation and ask for
Rs. 10 lakhs)
(ii) Injunction
(iii) Specific Restitution of Property.

What is injunction?
It is an order of a court requiring a person,

corporation, or government entity to stop doing
something and refrain from doing that thing in
the future.
Suppose Ravi defames you, you can go to the
court for injunction and court will order Ravi
not to do it in future.
restitution and compensation?
Restitution = If you do something wrong and

cause damage, you must undo the damage
Restitution = gains-based recovery

compensation = loss-based recovery

What is Distress Damage
Feasant?
to distrain things which are doing damage.

Suppose cattle comes to your field and are
damaging your crop. You can tie these cattle.

What are the extra judicial
remedies ?
You can take some action to avoid loss from

the torts of others :
1. self defence
2. prevent the unlawful trespass (illegal
encroachment)
3. stop his own action relating to the tort
4. try to abate (to reduce) the tort
What the ways of presenting
evidence?
There are 3 methods :

1. oral
2. personal
3. documentary

Example of documentary
evidence?
Suppose you present a document in the court

What is evidence ?
When facts are brought before the court – it is

called evidence

What is UNCITRAL?
It is an international agency regarding

arbitration for international buisness.
United Nations Commission on International
Trade Laws

What is a specific relief ?
a relief in specie.
Suppose you made a contract to buy a
particular car, the person says he wants to sell
another car. But you insist on the car that you
had chosen. You go to the court for this, which
enforces your contract. This is an example of
specific relief
What is arbitration?
It is the means by which parties to a dispute get
the same settled through the intervention of a
third person (or more persons) but without
recourse to a court of law. Suppose A and B
fight over some matter relating to their
contract. They agree that C is a neutral person.
They refer their dispute to C, who gives his
judgement, and both A and B have to follow
the judgement. This is arbitration.
What is the law governing
arbitration?
The Arbitration and Conciliation Act, 1996

What is the law relating to
limitation period?
It is a time limit on the period within which a party can
commence legal proceedings.
Suppose you make a contract with Ravi, who doesnt
implement the contract. You can take a legal action
against Ravi. But this action has to be taken in a time
limit. It cant be that you go to the court after 40 years of
the contract. You have to go to the court within a time
frame (which is fixed in law of limitation).

Can you still enforce the old
contract ?
Yes, if the other part agrees. It is not your right
to forced the court to order him. If you can use
some legal means / judicial process to enforce
the contract, go ahead :
“Thus if a claim is satisfied outside the Court
of law after the expiry of period of limitation,
that is not illegal.” (Bombay Dying & Mfg. Co.
Ltd. v. State of Bombay, AIR 1958 SC 328.)
What is Doctrine of sufficient
cause?
In some cases, the period of limitation under

the law of limitation may be extended. Section
5 says that except Order XXI of the Code of
Civil Procedure, 1908 there are some other
matters, (specified in Sec. 5), where limitation
period may be extended.

WHAT IS CONTINUOUS
RUNNING OF TIME?
Time once started cannot stop

What do you understand from
Estoppel?
one person has by his declaration, act or omission,
intentionally caused or permitted another person to
believe a thing to be true and to act upon such belief
example : Ajay shows that he is your agent, while
actually he is not your agent. You remain silent and an
another party believes that Ajay is your agent and
gives some goods, which are swindled by Ajay – thus
you are bound here by the act of Ajay.

When the court cant enforce
specific relief ?
A court cant enforce specific relief in favour of a person :
(a) who cant get compensation for the breach of contract
(b) who is incapable of performing his own part (c) who
fails to ensure that he has performed / is willing to
perform his part
A court cant enforce specific relief against a person when

it is relating to personal service or when personal
supervision by court is required

A bequeaths land to B for his life, with remainder to
C. A dies, B enters on the land, but C, without B’s
consent, obtains possession of the title deeds
Solution :
B may recover them from C.

A receives a letter addressed to
him by B. B gets back the letter
without A’s consent.
Solution :
A can recover it again from B
Oliver v. Oliver (1861)

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Indian Legal System For Entrepreneurs

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Indian Legal System For Entrepreneurs

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INDIAN LEGAL SYSTEM FOR

My purpose here is to give an introductory lesson on legal system – which will

Standards of Weights and Measures

Standards of Weights and Measures (Packaged

Legal Metrology is the name by which the law

The International Organization of Legal

Either can enforce

1. Indian Institute of Legal Metrology;

the set of standard weight or measure which is

Secondary standard means the set of standard

Rule 4 :Prepacked packages must contain

Every individual, firm, Hindu undivided

total surface area of the package where the

Sec. 2(c) : the person who is in the business of

set of standard weight or measure which is

A mark (on weight / measure)

Any transaction which alters the assets or

Current account transactions through

shares, stocks, bonds, debentures or any other

Yes – if it is upto $ 25000 and is for the

ADRs/GDRs are issued on the basis of the

Section 5 of the FEMA allows any person to

For all the matters mentioned in Schedule II of

Foreign Currency Convertible Bonds (FCCBs)

Yes – but it is regulated by competition act

Under the Competition Act even if a person

Yes, although sovereign function of

“tie-in agreement” includes any agreement requiring a

Requiring a distributor not to sell the goods of

An agreement to sell goods on condition that

NO (Restricted under competition act 2002)

Earlier this term denoted Controller of capital

Yes, it may come

Competition Act 2002 prohibits any person or

A presumption is a rule of law that courts or

There are two types of facts in a case – facts

These are indirect facts related to a case.

All confessions are admissions but not vice

Admission means conceding something against

facts which though not in issue, are so

any fact from which, either by itself or in

The period of limitation will start from the date

1. time spent in obtaining decree

1. when the party interested in the contract

As per Indian Stamp act :

Section 2(14) a document by which any right or liability is, or

An unsigned draft document is not an

When immoveable property of A is made a

A charge may be floating or fixed. A fixed

It is a a pending suit, action, petition etc.

during the pendency of a suit in a court of law,

Where a person transfers his property so that

Mens Rea a bad intention or guilt

"Complaint" means any allegation made orally

a person who practises in a Court

any person appointed under Section 24 of Cr.

Those cases which are punishable with

Sec. 46 authorises the person arresting to

5 DECEMBER 09 www.afterschool.tk 101

summary case is a case which can be tried and

5 DECEMBER 09 www.afterschool.tk 103

It is the case, where the police officer may

5 DECEMBER 09 www.afterschool.tk 104