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Bigamy
Q. After being married with my husband for a couple of months I came to know that he already has a wife in another city. Now since I am the second wife I am being denied all my rights even though I have been cheated and kept in dark by my cheating husband. Please Guide.
A. As per law the said second marriage is null and void from the very beginning as the said man already has a wife. However the said person is definitely liable to be prosecuted under law for his illegal acts and deed.

You can always take criminal action against him for bigamy an offence under section 494 of the Indian Penal Code, 1860, the maximum punishment for bigamy is imprisonment upto 7 years and fine. You may also take action against the said person under the Domestic Violence Act, 2005.

In many such cases the Supreme Court has ruled that though the second wife cannot be given a legal status, but any woman who has been misrepresented by a person as a bachelor and tricked into marriage can claim for maintenance. In many cases women have been allowed by the courts, both the right to inherent the property of deceased husband as well seek maintenance from the husband during his lifetime.

In Dwarika Prasad Satpathy v. Bidut Prava Dixit and Ramesh Chandra v. V. R. Daga the Court held that a bigamous marriage may be declared illegal being in contravention of law but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependent. On 22nd January, 2008 the Court in Vidyadhari v. Sukharana Bai has given partial relief to second wife without deciding her status, who has been duped into bigamous relationship. To balance the equities the Court recognized Sukharana Bai as one of the legal heir of the deceased and ordered Vidyadhari to protect one- fifth share of hers.
Child Custody
Q. I was married to my husband for 10 years. We have 2 kids, 9 year old boy and 2 year old daughter. However I left by husband because of physical/mental abuse and now I am living with my parents. I do not have any source of income. My husband does a job where he has to stay away from home for 4-5 months every year. Can I get custody of both the children? My husband wants the custody of our children. Can he get the custody on financial grounds?
A. Custodial rights for a divorce in India are divided into two components – physical custody and legal custody. A parent, who has legal custody, is responsible for the welfare of the children in question. Physical custody refers to the parent with which the child resides. Moreover in majority of the cases, the mother is granted physical custody. However the same is subject to the judge’s discretion based on the various facts and circumstances of a particular case.

The court usually determines the custody of a child on the position that, "what is in the best interests of the child." Some of the factors that are considered by the court to determine the custody of children are:

  1. emotional and physical environment;
  2. the personal safety of the child;
  3. moral atmosphere of the household;
  4. the mental and physical health of the parents;
  5. the age of the children;
  6. preference of the child;
  7. the prior behaviour of the parents, including any history of abuse;
  8. the ability of each parent to care for the child;
  9. and the importance of religious upbringing within the family.
Daughter’s share
Q. My father has expired leaving behind my mother and three daughters including myself. The first daughter has had a love marriage and so my mother does not wish to give her anything from the existing property. Can the daughter fight for her right?
A. If your father has died intestate (i.e. without preparing a Will) then the devolution of your father’s property will be done in accordance with the provisions of The Hindu Succession Act 1956 whereby each one of you is entitled to receive a share in the said property.

Legally the mother cannot prevent the daughter from receiving her share in her father’s property as the mother’s right is limited to her own share. Therefore if any daughter is being denied her share in property then she may file a suit for claiming her rights in the same.
Daughter's Children Coparceners In Their Maternal Grandfather's HUF
Q. Are daughter's children coparceners in their maternal grandfather's HUF in the same way as brother’s children are coparcener in their paternal grandfather's HUF?
A. After the amendments done in The Hindu Succession Act, 1956 a daughter of a coparcener becomes a coparcener in her own right in the same manner as the son and enjoys the same rights in the coparcenery property as the son. Now there is no distinction between a son and a daughter for coparcenery rights. An unmarried daughter can also become karta of her father's Hindu undivided family (HUF).

Therefore the children of a married daughter will also become members of the grandfather's HUF. Thus one can become a coparcener not only in his/her father's HUF but also in the maternal grandfather's HUF.
Death of the Beneficiary
Q. My mother (Hindu family) has executed a will (registered) thereby transferring her property to me after her death. What will happen if I and my mother died together?
A. Generally speaking the next person in line of succession will receive the property in case of death of the beneficiary. Our advice to you is to not keep anything to chance and execute your Will as well wherein you can set out that who all may be the beneficiaries of your own property and also of the property that you may inherit during your life time or after it.
Desertion
Q. I married in the year 2008. Only after 45 days of my marriage my wife left my house and did not return. Few months ago I found her and requested to come back but she told me she does not want to be with me. I gave up on her and asked for divorce. She demanded Rs. 3 lakhs for consenting to divorce. I somehow arranged for the same. Now she is asking for more money to come to court and give consent. She is a science graduate and also working in a reputed company. Please guide me as I have a limited income and cannot afford to pay more money. What should I do to get divorce?
A. As per The Hindu Marriage Act, 1955 "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage"

Also please note Sec 125(4) of the Code of Criminal Procedure, 1973 "…No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent…"

In view of the above Legal Window is of the opinion that you may first file a petition in court for divorce on the grounds of desertion and bring to the court’s notice all the facts that you have mentioned in your query by way of documentary evidence, informing the court that you have already paid your wife an amount of Rupees three lakhs as per her demands. This will solve your purpose.
Division of Ancestral Property
Q. Kindly let me know how to divide our ancestral property amongst the successors who are currently alive.
A. As per The Hindu Succession Act, 1956 the coparcenery property of a coparcener is deemed to divided among the coparceners as if partition has taken place and the daughter is to be allotted the same share as the son. Further the share of the pre-deceased son/daughter, is to be allotted to the surviving child of such pre-deceased son/deceased daughter as the case may be.
Divorce
Q. I am separated from my wife form past 3 years because of some personal differences. I want a divorce but she is not willing to give me a divorce. We have two daughters. How can I get a divorce from her?
A. Legal Window presumes that your marriage has been solemnized as per the provisions of the Hindu Marriage Act, 1955.

In such circumstances you may file a petition for divorce on the basis of the grounds mentioned in section 13 of the said Act.

In addition to the grounds mentioned in section 13 of the Act, the Union cabinet has recently approved amendments to the Hindu Marriage Act, 1955 thereby allowing divorce on the grounds of “irretrievable breakdown of marriage”. The Supreme Court too by way of various judgments has accepted “irretrievable breakdown of marriage” as a good ground of dissolving in-conciliatory marriages by granting a decree of divorce.

In view of the same you may file a petition for divorce in Family Court on the said ground and obtain appropriate decree from the court.
Female Karta
Q. I am the karta of HUF and the only male member in the family. I have bought a property in HUF is it legally allowed? What happens after my death? Can I nominate my wife as karta as I have two daughters who are a part of HUF but married?
A. The Karta of a Hindu joint Family in Hindu Law is the senior most member of the family entitled to manage family affairs, in his absence the next eldest member after him is entitled to be the Karta. Therefore your wife will automatically become the Karta of your HUF.

Also a HUF can legally purchase property in its name and there are no such restrictions on the acquisition of property by an HUF.
Jurisdiction For Divorce Petition
Q. I am a resident of Bangalore and my marriage is registered in Ahmedabad. Please let me know where can I file for divorce? Bangalore or Ahmedabad?
A. As per sec 19 the Hindu Marriage Act, 1955 you may file for divorce in the District Court in either of the following places:

  1. The place were the marriage was solemnized, or
  2. The place were the respondent resides, or
  3. The place were the parties to the marriage last resided together
  4. The place where the petitioner is residing at the time of filing of petition provided the respondent is at that time is residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.
As per sec 31 of the Special Marriage Act, 1954 you may file for divorce in the District Court in either of the following places:
  1. The place within the local limits of whose jurisdiction the marriage was solemnized
  2. The place where the husband and wife resides
  3. The place where the husband and wife last resided together
  4. The place where the petitioner is residing at the time of filing of petition, provided the respondent is at that time is residing outside the territories to which this Act extends, or has not been heard  of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.
Live-in Relationships
Q. Kindly throw some light on legality of live-in relationships and rights of live-in partners.
A. Live-in relationships have been a hot topic for debate in the Parliament over the past few years although no specific laws have been formulated for live-in-relationships. However the Supreme Court by way of judgements has legalized live-in-relationships in India.

Even in the absence of a specific legislation on the subject, under The Protection of Women from Domestic Violence Act, 2005, all benefits are bestowed on woman living in such kind of arrangement by reason of being covered within the term “domestic relationship” under Section 2(f). Also Children borne out of live-in-relationships are considered legitimate.

Sec 2 (f) " domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
Maintenance
Q. I am undergoing divorce and I have applied for maintenance in court. What is the maximum amount of maintenance that I can claim?
A. For grant of maintenance and permanent alimony the court takes into account various factors like status, income and liabilities of the husband. The income and property of the applicant may be considered while determining the amount of permanent alimony.

As per Section 23(2) of The Hindu Adoption and Maintenance Act, 1956 the factors to be considered by the court in determining the amount of maintenance payable to the wife are:
  • the position of and status of the parties,
  • the reasonable wants of the applicant,
  • the applicant  if living separately is justified or not,
  • the income of the applicant and the value of the applicant’s property and the number of persons entitled to maintenance under the Act.
The maintenance provided can be modified, suspended or cancelled if the applicant has remarried or is proved unchaste or there is resumption of cohabitation after judicial separation.
Maintenance Case by Working Women
Q. Can I being a working woman file a maintenance case? Can I get back the money spent on my in-laws by my father during my marriage?
A. You may reclaim the amount of dowry paid to your in-laws and expenses incurred on their behalf.

The Hon’ble Supreme Court has stated in various judgements that a wife is entitled to enjoy same status and lifestyle as that of the husband and therefore you can claim maintenance and can obtain maintenance subject to the condition that you are earning much less than your husband and provided your husband has a higher standard of living (earnings) than you.
Maintenance in Shia Law
Q. Please explain the Muslim Law, specially the Shia Law. I have no knowledge about it and my husband has kept me in the dark so far. My husband says that I am not entitled to any money or maintenance and has not given me any money since he suddenly left home 3 months ago. He is living in his farm house and is getting income of Rs. 1 lakh as rent.
A. Generally speaking as per Muslim Law a man can pronounce talaq both by oral and/or by written document (talaqnama) for reasonable cause. However there are certain rules and procedures that need to be followed for divorce by a Shia Muslim.

Under the Shia Law, a talaq is not effective, unless it is pronounced:

  1. strictly in accordance with the Sunna,
  2. In Arabic terms,
  3. in the presence of at least two adult male witnesses,
  4. with the distinct intention to dissolve the marriage tie, and
  5. While sane and possessed to sound understanding.
In Shia Law Talaq in written form is not recognised unless the husband is physically incapable of pronouncing it. Also the Shia law permits talaq-ul-sunnat only. Therefore in view of the same it can be said that the method by which your husband has pronounced Talaq is void and illegal and hence the same can be challenged by you.

As far as the question of maintenance on divorce is concerned then the general Muslim law states that a woman is entitled to receive an amount of maintenance during the period of ‘Iddat’ only. Further the woman has a right to all properties that are/were gifted to her and is also entitled to a fair and reasonable provision to be made by her husband in her favour for her future needs. A woman can also file a petition for larger relief under section 125 of the Code of Criminal Procedure 1973.

The above is to give you a general idea of the Muslim (Shia) law, as Muslim laws are highly diverse and its applicability is based on the nuances of each case. Legal Window suggests that you appoint the services of a lawyer practicing Muslim laws who can guide you based on the facts of your case.
Maintenance under Domestic Violence Act, 2005
Q. In the case of domestic violence is the lady entitled to get the accommodation for herself and her child? Can she ask for rent if accommodation is not provided?
A. The Protection of Women from Domestic Violence Act, 2005 provides that if an abused woman requires, she has to be provided alternate accommodation and in such situations, the accommodation and her maintenance has to be paid for by her husband or partner. As per Section 19 of The Protection of Women from Domestic Violence Act, 2005 the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order and accordingly under sub section (f) of section 19 direct the husband to secure same level of alternate accommodation for the women as enjoyed by her in the shared household or to pay rent for the same.
Marriage Certificate
Q. I am living in Mumbai and I want to obtain Marriage Certificate for submission to Passport Office? Kindly guide the procedure for obtaining Marriage Certificate.
A. You may either get your marriage registered as per local marriage registration Act or under sec 15 of the Special Marriage Act, 1954.

Kindly go through the following for further details:

1. Under Special Marriage Act. 1954
Documents to be attached (Original & one Attested Xerox Copy) by both the parties with the application made in the prescribed form:
  • Age Proof ( School Leaving Certificate Or Birth Certificate Or Domicile Certificate Or SSC Board Certificate)
  • Residential Proof ( Ration Card Or Passport Or Election Card Or Light Bill And Telephone Bill Of Own Name)
  • Photographs
2. Under Maharashtra Regulation Marriage Bureaus And Registration Of Marriages 1998

Documents to be attached (Original & one Attested Xerox Copy) alongwith memorandum of marriage form:

  • Age Proof ( School Leaving Certificate Or Birth Certificate Or Domicile Certificate Or SSC Board Certificate)
  • Residential Proof ( Ration Card Or Passport Or Election Card Or Light Bill And Telephone Bill Of Own Name)
  • Photographs
  • 3 witness proof (ration card or passport or election card or driving licence or govt. Identity card)
  • wedding card (in case of non availability of wedding card Rs 100=00 stamp paper affidavit of both husband wife and three witnesses required)
  • Rs. 100=00/- court fee stamp
In case of divorcees, divorce decree certificate must be produced
In case of widow and widower death certificate of concered person must produce.
Mental Cruelty
Q. What constitutes ‘’mental torture or cruelty’’ as ground for a divorce?
A. Cruelty is a valid ground for divorce as per Section 13 of The Hindu Marriage Act, 1955. Mental cruelty can be caused in many ways. A false criminal case to harass the husband would be an act of cruelty. Refusal to have marital relationships, false complaints by the wife, an act of nagging, false, scandalous, malicious and baseless charges etc. may all be taken under the purview of Mental Cruelty.

A recent Supreme Court judgment, delivered on March 26, 2007, in the case of Samar Ghosh versus Jaya Ghosh 2007 (5) SCALE 1, attempts to summarise and lay the law with regard to mental cruelty as grounds for divorce. The Supreme Court observing that a uniform standard could not be laid down, enumerated instances of human behaviour that would be relevant in dealing with cases of “mental cruelty”. The following instances were indicated as illustrative, though not exhaustive, with regard to adjudging mental cruelty:

  1. A husband undergoing sterilization without medical reasons and without the consent or knowledge of his wife may lead to mental cruelty.
  2. A wife undergoing sterilization or abortion without medical reasons or without the consent or knowledge of the husband may lead to mental cruelty.
  3. Unilateral decision of refusal to have intercourse for a considerable period without any physical incapacity or valid reason may amount to mental cruelty.
  4. Unilateral decision of either husband or wife after marriage not to have a child may amount to mental cruelty.
  5. Acute mental pain, agony and suffering to a degree that would not make it possible for the parties to stay with each other.
  6. On a comprehensive appraisal of the entire matrimonial life, if it becomes clear that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party.
  7. Mere coldness of manner or lack of affection cannot amount to mental cruelty. However, frequent rudeness of language, petulance, indifference and neglect could reach a degree that makes married life for the other person intolerable.
  8. Feeling of deep anguish, disappointment, frustration in a spouse caused by the conduct of the other over a long time may amount to mental cruelty.
  9. Sustained abusive and humiliating treatment calculated to torture or render miserable the life of the spouse could amount to mental cruelty.
  10. Sustained unjustifiable conduct affecting the physical and mental health of the spouse. However, the treatment complained about and resultant apprehension must be very grave, substantial and weighty.
  11. Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness, causing injury to mental health or deriving sadistic pleasure could amount to mental cruelty.
  12. Jealousy, selfishness, possessiveness which causes unhappiness, dissatisfaction and emotional upset may not be grounds for divorce on account of mental cruelty.
  13. Trivial irritations, quarrels, normal wear-and-tear of married life would not be adequate for grant of divorce on grounds of mental cruelty.
  14. Few isolated instances over a period of years would not amount to mental cruelty. Persistent ill conduct for a lengthy period, where the relationship has deteriorated to an extent that the wronged party finds it difficult to live with the other party may amount to mental cruelty.
  15. Long period of continuous separation indicating that the matrimonial bond is beyond repair may lead to mental cruelty.
Prohibited Relationships & Sapindas
Q. I have a friend who wants to marry his mother's real sister’s daughter. He is a Hindu and the girl is also of the same cast but different surname. Such marriages are not supported by any custom in their cast. However their Gotra is different. Now if they marry, is it valid in the eyes of law? If not what steps can be taken to make it valid? Can they marry after converting to a Parsi or Christian?
A. Kindly take note of that for a Hindu marriage to be valid has to fulfill the following conditions:

Parties to a marriage who are within the degrees of prohibited relationships or sapindas of each other cannot legally marry each other unless a custom or usage by which they abide, permits such a marriage.

A sapindas relationship extends till the first to third generation in the line of ascent through the mother, and the first to fifth generation in the line of ascent through the father.

As per Law two persons are said to be within the degrees of prohibited relationships:

  1. If one is a lineal ascendant of the other. Lineal ascendant means includes children, grandchildren, great-grandchildren, etc. of a person.
  2. If one was the wife or husband of a lineal ascendant or descendant of the other. For instance, a son can not marry his stepmother and/or a man cannot marry his Daughter-in -Law etc.
  3. If one was the wife of the brother or of the father's or mother's brother or the grandfather's or grandmother's brother of the other.
  4. If the two are brother and sister; uncle and niece; Aunt and Nephew or children of brother and sister of two brothers or two sisters.
Simply put a person can not marry upto his/her second cousin from the mother's side and upto his/her fourth cousin from the side of the father.

As far as marriage post conversion is concerned then under both The Hindu Marriage Act, 1955 and The Parsi Marriage and Divorce Act, 1936 those who are within degree of prohibited relationship are ineligible for marriage but The Indian Christian marriage Act 1872 does not recognize ‘Sapindas’ and thus one may convert into Christianity as laid down in the Act and marry. As after conversion the marriage does not fall under the 'sapinda' relationship.

However before taking such steps due consideration may be given to various factors which have bearing on the entire matter including property inheritance and disruption of relationships among various relatives etc.
Registration under Special Marriage Act, 1954
Q. Can a Christian male marry a Hindu female without the Hindu female converting to Christianity? What is the law and procedure for such a marriage?
A. Marriage between two Indian citizens belonging to different castes can be solemnized under the provisions of The Special Marriage Act, 1954. Neither of the parties are required to convert for the same.

Under the said Act the parties intending to marry shall be required to give a notice in writing to the Marriage Officer of the district in which at least one of the parties to the marriage reside. After the application and submission of documents for issuance of public notice inviting objections is done one copy of notice is pasted on the notice board of the office and a copy of the notice is sent by registered post to marriage officer of the area where either of the parties having present/permanent address.

Registration is done 30 days after the date of notice after hearing any objection that may have been received during that period by the ADM.

Before the solemnization of marriage the parties and three witnesses are required to sign declaration in the presence of the marriage officer and after the solemnization of marriage the parties and witnesses will be required to sign the Marriage Certificate.
Separation & Divorce
Q. I noticed a column for marital status in the passport application form which had four options married, Single, divorced and Separated. What is the difference between separated and divorce?
A. Divorce means dissolution or termination of marriage by an order of court. Whereas separation means that though a couple is married they are living apart from each other. During the period of judicial separation the conjugal rights of the couple remain suspended. Also once a person is judicially separated he/she cannot remarry anyone else unless and until the legal separation is converted to a divorce. If the couple reunites during the separation period then the marriage may be restored.
Step Brother’s Share
Q. My mother owns a plot of land in her single name in Goa and it is bought out of her own earnings. I have a step brother [son from father’s first wife (deceased)]. Also I do not have any other siblings. After my mother’s death, do I automatically get a full and undisputed right to the plot of land or does my step brother too acquire half the right? My father too is alive.
A. As per the general rules of succession in the case of female Hindus dying intestate each of you (yourself, your father and your step brother) are entitled to receive a share of your mother’s property. Your step brother being the successor to your father is also entitled to a share in the property of your mother.

However if your mother wants to bequeath her property solely to you then she must execute a Will in your favour and preferably get the same registered too.
Succession Certificate
Q. What is succession certificate?
A. Succession Certificate is granted by a court to the successor of a deceased person for the realization of the debts and securities of the deceased and to give valid discharge. A person may obtain a Succession Certificate by filing an application in court, where the properties of deceased relative are situated or where he / she normally resided.
Succession In Case of Females
Q. My father had made a will and through it he had given all his property to my mother. Now my mother has expired however she has not made any Will. How will the inheritance take place now?
A. Your mother inherited the property as per the Will of your father and so she enjoyed the right of dealing with the property in any manner during her lifetime but as your mother has died intestate (without making a Will) then under such circumstances the provisions of the Hindu Succession Act, 1956 shall be applicable to her.

For your ready reference we are providing herewith the relevant section of the said Act::

Section 15 General rules of succession in the case of female Hindus.- 

1. The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,-

  • firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband.
  • secondly, upon the heirs of the husband.
  • thirdly, upon the heirs of the father, and
  • fourthly, upon the heirs of the father, and
  • lastly, upon the heirs of the mother.
2. Notwithstanding anything contained in sub-section (1),-
  • any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father, and

  • any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter ) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.Notwithstanding anything contained in sub-section (1),-
Surrogacy
Q. Myself and my wife we both have made an arrangement with the sister of my wife to bear a child for us since my wife cannot conceive. The sister is an abandoned wife. What should we do to ensure that the wife’s sister does not claim back the surrogate child? What legal precautions can be taken?
A. As of now no proper law has been enacted by the Indian legislator with regards to surrogacy however surrogacy is not prohibited in India and commercially it has been legal in India since 2002.

A relative, a known person, as well as a person unknown to the couple may act as a surrogate mother for the couple. Further under the issued guidelines of the Indian Medical Council surrogate mothers have to sign away all their rights to the child.

As there are no laws governing surrogacy, the prime component which binds the conduct of the parties to the surrogacy is the Surrogacy Agreement. Therefore in case if you wish to opt for the same then you are required to execute a contract of surrogacy specifically stating all the terms and conditions of the surrogacy. The contract must be carefully drafted by a competent advocate who is well versed with the current scenario of Surrogacy in India in order to avoid any future complications. You may refer to the checklist of clauses provided by the Indian Surrogacy Law Centre given below:

Checklist of Clauses For Surrogacy Agreement:

  • Name and details of the parties to the agreement
  • Why does the party to the agreement propose surrogacy
  • Details about the surrogate
  • What is the exact intention between the parties at time of entering into the agreement
  • What is type of surrogacy? Gestational, traditional, altruistic, commercial?
  • Is the question of motherhood resolved?
  • What is the mentioning in the agreement about the paternity?
  • Is the agreement as a whole and each clause individually valid as per the eyes of the Indian Law?
  • Is the agreement a proper representation of your intentions?
  • How is the compensation clause drafted?
  • Does the agreement indicate clearly details with regard to the compensation in times of unexpected mis-happenings to the surrogate?
  • Child no lien for dispute over the compensation
  • Child's custody with the Intended parents alone is legal custody
  • How does the agreement strategize your paternity as there is no law recognizing surrogacy in India?
  • What is the jurisdiction for the disputes arising out of the agreement?
Will
Q. Can you guide me about ‘Wills’ and laws in India for the same?
A. Basically a Will is a legal declaration of the intention of a person with respect to the distribution of his/her self acquired property. Though it is not mandatory to execute a will but it is suggested that one should make a Will, a Will can be changed or amended if so required.

According to Section 59 of the Indian Succession Act, 1925 any competent person of sound mind who has reached the age of majority can make his will.

Registration of Will is optional. A non-registered Will is also valid in the eyes of law and further registration has no time limit. No Stamp duty is required to be paid for execution of a Will. In case of bequeathing property, mention details about the disposition of the same and who exactly is the beneficiary and the relationship too.

On the death of the testator, the executor of the will or the heir of the deceased testator can apply for probate. The court will grant probate If there are no objections by the other heirs of the deceased.

Probate is a document certifying the validity of a Will. A probate is obtained to authenticate the validity of the will and it is treated as conclusive evidence of the genuineness of a will.

Registration of a Will is not mandatory but advisable. A Will can be registered with the registrar/sub-registrar by paying a nominal registration fee. The testator must be personally present at the registrar's office along with witnesses. The endorsement of the registrar is sufficient to prove the execution of the will.
Director’s Liability
Q. After being married with my husband for a couple of months I came to know that he already has a wife in another city. Now since I am the second wife I am being denied all my rights even though I have been cheated and kept in dark by my cheating husband. Please Guide.
A. As per law the said second marriage is null and void from the very beginning as the said man already has a wife. However the said person is definitely liable to be prosecuted under law for his illegal acts and deed.

You can always take criminal action against him for bigamy an offence under section 494 of the Indian Penal Code, 1860, the maximum punishment for bigamy is imprisonment upto 7 years and fine. You may also take action against the said person under the Domestic Violence Act, 2005.

In many such cases the Supreme Court has ruled that though the second wife cannot be given a legal status, but any woman who has been misrepresented by a person as a bachelor and tricked into marriage can claim for maintenance. In many cases women have been allowed by the courts, both the right to inherent the property of deceased husband as well seek maintenance from the husband during his lifetime.

In Dwarika Prasad Satpathy v. Bidut Prava Dixit and Ramesh Chandra v. V. R. Daga the Court held that a bigamous marriage may be declared illegal being in contravention of law but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependent. On 22nd January, 2008 the Court in Vidyadhari v. Sukharana Bai has given partial relief to second wife without deciding her status, who has been duped into bigamous relationship. To balance the equities the Court recognized Sukharana Bai as one of the legal heir of the deceased and ordered Vidyadhari to protect one- fifth share of hers.
Dishonour of Cheque
Q. My customer made payment by cheque. However when I presented the cheque in the Bank it was dishonoured. What action can I take in order to recover the said payment?
A. Under these circumstances you may issue a Notice u/s 138 of the Negotiable Instrument Act, 1881. Wherein you are required to issue a Statutory Notice to the said party within one month from the date of dishonour of the cheque (i.e. date of Bank Advice slip).

If in case the said party does not comply with the notice within the 15-days notice period then you will be required to file a Criminal Complaint in a month’s time (counting from the date of end of notice period). The said notice is required to be drafted carefully and in accordance with law.

Please Note: Notice period begins from the date of receipt of notice and not the date of issue of the notice.

Simultaneously for claiming cheque amount along with cost & interest one may file a suit for recovery under order XXXVII of Code of Civil Procedure 1908.
Interest on Amount
Q. Can I claim my cheque amount with interest from the accused party in cheque bounce case?
A. No, you cannot claim interest. Criminal Complaint u/s 138 of Negotiable Instrument Act is filed for punishment to the drawer of the cheque for having committed an offence under the Act. The judge may or may not award monetary compensation in the form of fine.

In order to claim interest along with the principal amount you may file a suit for recovery under order XXXVII of Code of Civil Procedure 1908.
Jurisdiction
Q. I am in Delhi and the opposite part is from Nagpur, the cheque was presented in Mumbai Bank. Now in case of dishonour where can I file criminal complaint under The Negotiable Instrument Act, 1881?
A. The Hon’ble Supreme Court in case of Harman Electronics (P) Ltd. and Anr. Vs. National Panasonic India Ltd. has held that the court ordinarily will have the jurisdiction only where the offence has been committed and therefore, the place where an offence has been committed plays an important role. Also Section 177 of the Code of Criminal Procedure, 1973 lays down that every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it is committed.

In light of various judgments given by the Hon’ble Supreme Court.

It can be summed up that a complaint under the said act can be filed in either of the fallowing places –
  1. Where the cheque was drawn.
  2. Where the drawee bank is situated.
  3. Where the cheque was returned unpaid by drawee bank.
  4. Where notice demanding payment, given in writing by the drawee has been accepted by the drawer.
  5. Where drawer of cheque failed to make payment within 15 days of receipt of notice.
Notice to Company
Q. I want to issue notice to a company for dishonour of cheque. Please guide.
A. You are required to issue a Statutory Notice u/s 138 of the Negotiable Instrument Act, 1881 to the said party within one month from the date of dishonour of the cheque (i.e. date of Bank Advice slip). You must state in the notice who is the signatory of the cheque and how the other directors of the company are responsible for the dishonour of cheque; if these averments are not made out in the notice then the notice will be become defective.
Procedure
Q. Please let me know the order or sequence of filing complaint u/s 138 of the Negotiable Instrument Act, 1881
A. Firstly the cheque which has been presented is dishonoured for reasons as may be specified in the bank advice slip.

Secondly a statutory notice is required to be sent to the signatory/drawee. The notice should be properly addressed. In case of companies it should be addressed to both the company and the signatory of the cheque and directors of company. It should be sent by registered post and should be duly acknowledged.

Thirdly if in case the notice is not complied with within the statutory time i.e. 15 days from the date of receipt of notice then the cause of action arises.

After the cause of action has arisen, the person is required to file a criminal complaint within 1 month.
Punishment
Q. What is the punishment that an offender under The Negotiable Instruments Act, 1881 can receive?
A. As per law an offender under the said Act may be punished with imprisonment for a period which may extend to two years or payment of a fine, which may equal to twice the amount of the cheque or, both.
Re–issuance of Notice
Q. Can a notice u/s 138 of the Negotiable Instrument Act, 1881 be reissued?
A. Notice u/s 138 of the Negotiable Instrument Act, 1881 cannot be reissued and neither can the cheque be represented after issuance of the notice. However it may be noted that before issuance of the notice then cheque may be presented multiple times.
Section 138
Q. What are the exact provisions of section 138 to section 141 of the Negotiable Instrument Act, 1881?
A. The relevant provisions are as under:

138. Dishonour of cheque for insufficiency, etc., of funds in the accounts

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for 2["a term which may extend to two year"], or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless-

  • The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.
  • The payee or the holder induce course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque, 3["within thirty days"] of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and
  • The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability].

OBJECTS AND REASONS OF AMENDING ACT OF 2002

The Negotiable Instruments Act, 1881 was amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 wherein a new Chapter XVII was incorporated for penalties in case of dishonour of cheques due fo insufficiency of funds in the account of the drawer of the cheque. These provisions were incorporated with a view to encourage the culture of use of cheques and enhancing the credibility of the instrument. The existing provisions in the Negotiable Instruments Act, 1881, namely, sections 138 to 142 in Chapter XVII have been found deficient in dealing with dishonour of cheques, Not only the punishment provided in the Act has proved to be inadequate, the procedure prescribed for the Courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act- (Para 1)

Keeping in view the recommendations of the Standing Committee on Finance and other representations, it has been decided to bring out, inter alia, the following amendments in the Negotiable Instruments, Act, 1881, namely:-

(i) to increase the punishment as prescribed under the Act from one year to two years;

(ii) to increase the period for issue of notice by the payee to the drawer from 15 days to 30 days; (Para 4)

  1. Inserted by Act 66 of 1988, , sec. 4 (w.e.f. 1-4-1989). Earlier Chapter XVII relating to " Notaries Public" Inserted by Act 2 of 1985, sec. 10, was replaced by the Notaries Act, 1952 (53 of 1952), sec. 16 (w.e.f. 14-2-1956).
  1. Substituted by Act 55 0f 2002, sec. 7 for "a term which may extended to one year" (w.e.f. 6-2-2003).
  1. Substituted by Act 55 of 2002, sec. 7, for "within Fifteen days" (w.e.f. 6-2-2003).
Section 139
Q. Presumption in favour of holder
A. 1[Presumption in favour of holder
It shall be presumed, unless the Contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability].

1. Ins. by Act 66 of 1988, sec. 4 (w.e.f. 1-4-1989).
Section 140
Q. Defence which may not be allowed in any prosecution under section 138
A. 1[Defence which may not be allowed in any prosecution under section 138 It shall not be a defence in a prosecution of an offence under section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that section].

1. Ins. by Act 66 of 1988, sec. 4 (w.e.f. 1-4-1989)
Section 141
Q. Offences by companies.
A. If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and proceeded against and punished accordingly];

Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.

2["Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.]

Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attribute to, any neglect on the part of, any director, Manager, secretary, or other office of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation: For the purpose of this section. -

  1. "Company" means any body corporate and includes a firm or other association of individuals; and
  2. "Director", in relating to a firm, means a partner in the firm.
OBJECTS AND REASONS OF AMENDING ACT OF 2002

The existing provisions in the Negotiable Instruments Act, 1881, namely, sections 138 to 142 in Chapter XVII have been found deficient in dealing with dishonour of cheques. Not only the punishment provided in the Act has proved to be inadequate, the procedure prescribed for the Courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act-

Keeping in view the recommendations of the Standing Committee on Finance and other representations, it has been decided to bring out, inter alia, the following amendments in the Negotiable Instruments, Act, 1881, namely:-

(viii) to exempt those directors from prosecution under section 141 of the Act who are nominated as directors of a company by virtue of their holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government, or the State Government, as the case may be;

  1. Ins by Act 66 of 1988, sec. 4 (w.e.f. 1-4-1989).
  1. Ins. by Act 55 of 2002, sec. 8 (w.e.f. 6-2-2003).
Agent
Q. When can an agent be held personally liable for his acts?
A. An agent can be held personally liable for his acts when he falsely represents that he has authority to act on behalf of the principal or when the agent exceeds his authority and the principal refuses to ratify his acts. The agent in such eventuality is held personally liable for any loss sustained by a third party.

Certain times the contract itself expressly provides for the personal liability of the agent. Also the agent is held personally liable when he signs a negotiable instrument in his own name without making it clear that he is signing the same as an agent. Further an agent who works for a foreign principal may be held personally liable for his acts.
Agreement and Contract
Q. What is the difference between Agreement and Contract?
A. In general terms an agreement is an arrangement that is accepted by all parties to a transaction.

Section 2(e) of The Indian Contract Act, 1872 defines agreement as "every promise and every set of promises, forming the consideration for each other." An agreement constitutes of an offer and acceptance of the offer and when such an agreement is legally enforceable it turns into a contract.

Section 10 of The Act states that "all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void." The essential of a valid contract are as follows:-
  1. Offer from one party and its acceptance by another,
  2. Free consent,
  3. Parties must be competent to contract,
  4. Lawful consideration,
  5. Lawful object.
  6. Intention to create legal relations 
  7. Possibility of performance
  8. Contract should not have been declared as void under Contract Act or any other law
Breach of Contract
Q. I had executed a Contract with one party for supply of raw materials. I have already paid the advance amount as per the contract but the party is harassing me by causing delay and is also supplying inferior quality material, due to this I am suffering losses. What action can I take for breach of contract?
A. As per The Indian Contract Act, 1872 and The Specific Relief Act, 1963 you may take the following actions for breach of contract -
  1. Suit for damages or compensation
One may file a suit for damages or compensation for obtaining monetary relief for the losses caused due to the breach of contract. The amount of damages (General damages, Special damages and Exemplary damages) that the court may grant will depend upon the type of loss caused to the aggrieved party.

Section 73 of the Indian Contract Act, 1872 lays down the guidelines for identifying the losses - “When a contract has been broken, the party who suffers by such breach is entitled to receive, form the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss of damage sustained by reason of the breach…”

  1. Suit for specific performance
One may ask the court to grant a decree of specific performance of a contractual obligation if claiming damages is not the appropriate remedy.

However as per Part II of the Specific Relief Act, 1963 specific performance is not available in the following circumstances:
  1. Damages provide an adequate remedy.
  2. Where the order could cause undue hardship.
  3. Where the contract is of such a nature that constant supervision by the court would be required.
  4. Where the party seeking the order has acted unfairly.
  1. Suit for injunction
The right to relief by way of injunction is contained in part III of the Specific Relief Act, 1963. Section 36 of The Act provides that temporary or permanent relief may be granted by the court as per its discretion. Injunction is an order asking a person to either refrain from doing a certain act continuing doing an act. In addition to the injunction damages may or may not be awarded based on the discretion of the court.
  1. Suit for rescission
An aggrieved party may approach the court to grant him a formal rescission, i.e., cancellation of the contract. In order to free himself from his own obligations under the contract.
Contract of Apprenticeship
Q. Is it true that I need to execute a contract of apprenticeship with the apprentice?
A. As per the provisions of The Apprentices Act, 1961 no person can be engaged as an apprentice unless such person or in case of minor his guardian, has entered into a contract of apprenticeship with the employer. Further no term or condition of the apprenticeship agreement should be inconsistent with any provision which is laid down of The Apprentices Act, 1961.

The Act states that every contract of apprenticeship should be sent by the employer to the Apprenticeship Adviser for registration of the contract of apprenticeship within three months of the date of signing the contract.

It is further stated in the said Act that an apprentice apart from the stipend shall not be required to take part in any output bonus or other incentive schemes.
Discharge of Contract
Q. When does a Contract come to an end?
A. A contract comes to an end or gets discharged when the rights and obligations created by it comes to an end either by act(s) of the parties or operation of law. As per The Indian Contract Act, 1872 a contract may be discharged by –
  • Performance
When the parties to a contract fulfil their obligations as per the terms of the contract the contract comes to an end. But if only one party performs his duty then it alone is discharged and the other is liable for prosecution.
  • mutual agreement
Section 62 of the Indian Contract Act, 1872 lays down that if the parties to a contract agree to substitute a new contract for it or to refund or remit or alter it by way of Novation, Rescission, Alteration
or Remission, then the original contract need not to be performed.
  • impossibility of performance
As per Sec 56 of The Act a contract ceases to exist if it becomes impossible to perform it due to (a) Unforeseen change in law (b) The destruction of subject matter (c) The non-existence or non-occurrence of particular incident (d) the declaration of war
  • lapse of time
If the contract is not performed within a specified period of time then the same is discharged by virtue of the provisions of The Limitation Act, 1963. 
  • operation of law
Contract comes to an end due to death or insolvency etc.
  • breach of contract
If either of the parties breaches the contract then it comes to an end.
Indemnity and Guarantee
Q. What are contract of indemnity and contract of guarantee?
A. As per Section 124 The Indian Contract Act, 1872 a "Contract of indemnity" is defined as – “A contract by which one party promises to save the other from loss caused to him by the contract of the promisor himself, or by the conduct of any other person, is called a "contract of indemnity".

Therefore a contract of indemnity is one whereby a party promises to save the other party from any loss caused to him by the conduct of the promisor itself or by the conduct of any third person. However such loss must not be caused due to force majeure.

As per Section 124 The Indian Contract Act, 1872 a "Contract of guarantee" is defined as – "A" contract of guarantee" is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The person who gives the guarantee is called the "surety", the person in respect of whose default the guarantee is given is called the "principal debtor", and the person to whom the guarantee is given is called the "creditor". A guarantee may be either oral or written."

A contract of guarantee involves three persons,
  • The person who gives the guarantee i.e. 'surety';
  • The person in respect of whom the guarantee is given i.e.  'principal debtor'; and
  • The person to whom the guarantee is given i.e. 'creditor'.
It is a conditional contract to perform the promise, or discharge the liability, of a third party in case of default by such third party. It is a form of assurance given to the creditor for his money as opposed to a contract of indemnity which aims at providing compensation for the loss which may be caused. In a contract of guarantee the liability is shared by the surety and principal debtor equally.
Jurisdiction
Q. I want to sue a party who has breached a contract for one immovable property owned by me. I am situated at Mangalore and the other party is in Delhi. The property is situated in Pune. Can I file a suit in Mangalore?
A. Subject to the jurisdiction of any particular court that you have agreed upon in the said contract you may file the suit either at the place where the property is situated or at the place where the defendant resides or carries on business.

The provisions of  The Civil Procedure Code 1908 with regards to jurisdiction are listed below –

Sec 16. Suits to be instituted where subject-matter situate.

Subject to the pecuniary or other limitations prescribed by any law, suits-
  1. for the recovery of immovable property with or without rent or profits,
  2. for the partition of immovable property,
  3. for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
  4. for the determination of any other right to or interest in immovable property,
  5. for compensation for wrong to immovable property,
  6. for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate :
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant, may where the relief sought can be entirely obtained through his personal obedience be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

Sec 17. Suits for immovable property situate within jurisdiction of different Courts.

Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Court, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate :

Provided that, in respect of the value of the subject matter of the suit, the entire claim is cognizable by such Court.

Sec 18. Place of institution of suit where local limits of jurisdiction of Courts are uncertain.

  1. Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction :

    Provided that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise jurisdiction.
  2. Where a statement has not been recorded under sub-section (1), and objection is taken before an Appellate or Revisional Court that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate, the Appellate or Revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the Court having jurisdiction with respect thereto and there has been a consequent failure of justice.
Memorandum of Understanding
Q. Memorandum of Understanding is not a part of the contract. How far is this statement true?
A. The legal nature of a Memorandum of Understanding is based on the nature of rights, obligation/ duties or legal relationship it creates among the parties. It forms an understanding of the parties in totality but however all understandings do not mature in contracts and as such can not be enforced by law.

Section 10 of The Act states that “all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.”

In an Memorandum of Understanding, there may be offer and acceptance among competent parties with their free consent and object may also be lawful but still no binding relationship is created or come in to existence because when it is tested on the touchstone of above ingredients it emerges that MOU lacks consideration and intention to create legal relationship.
Rectification
Q. I have come across an error in my Agreement. Can it be corrected? What is the law in this regard?
A. Errors pertaining to mistake of facts can be rectified through the execution of a supplementary document called a Rectification Deed. Rectification Deed must be mutually agreed upon and be jointly executed by and between parties to an agreement for correction of mistake in the principal deed. It should not be a mistake of law.

The principal agreement can be modified by way of addition, deletion or rectification of term(s). The parties are required to pay the requisite stamp duty in order to get the rectification deed registered with the concerned authority.
Registration
Q. Do we need to register all Agreements compulsorily?
A. As per section 17 of The Registration Act, 1908 registration of the following types of Agreements or deeds is mandatory:
  1. Gift deed of immovable property
  2. Non-testamentary instruments, which purport or Operate to create, declare, assign, limit or extinguish whether in the present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
  3. Non testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extension of any such right, title or interest;
  4. Leases of immovable property from year or for any term exceeding one year, or reserving a yearly rent.
  5. Non testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish whether in the present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
  6. The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2000 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.
Documents of which registration is optional (section 18)
  1. Instruments (other than instruments of gift and wills) which purport or operate to create, declare, assign limit or extinguish whether in present or in future, any right, title or interest whether vested or contingent, of a value less than one hundred rupees, to or in immovable property ;
  2. Instruments acknowledging the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest ;
  3. Leases of immovable property for any term not exceeding one year, and leases exempted under section 17 ;
  4. Instruments transferring or assigning any degree or order of a Court or any award when such decree or order or award purports or operate to create, declare assign, limit or extinguish, whether in present or in future, any right, title or interest, vested or contingent of a value less than one hundred rupees, to or in immovable property ;
  5. Instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish any right, title or interest to or in movable property;
  6. Wills ; and
  7. All other documents not required by section 17 to be registered
Surety
Q. What is the extent of liability of a Surety?
A. The Supreme Court by way of various judgements has reiterated the legal position that the liability of the surety/guarantor is co-extensive with the principal debtor, unless it is otherwise provided by the contract and that a creditor is not bound to exhaust his remedy against the principal debtor before suing the surety/guarantor.

In Bank of Bihar Ltd. v. Damodar Prasad and Another (1969) 1 SCR 620 ... the court referred to a judgment in Lachhman Joharimal v. Bapu Khandu and Tukaram Khandoji (1869) 6 Bombay High Court Reports 241, in which the Division Bench of the Bombay High Court held as under:

"The court is of opinion that a creditor is not bound to exhaust his remedy against the principal debtor before suing the surety and that when a decree is obtained against a surety, it may be enforced in the same manner as a decree for any other debt."

This Court, while approving the said judgment, observed that, “the very object of the guarantee is defeated if the creditor is asked to postpone his remedies against the surety. In the present case the creditor is a banking company. A guarantee is a collateral security usually taken by a banker. The security will become useless if his rights against the surety can be so easily cut down.”

In The Hukumchand Insurance Co. Ltd. v. The Bank of Baroda & Others AIR 1977 the court held:- “The question as to the liability of the surety, its extent and the manner of its enforcement have to be decided on first principles as to the nature and incidents of suretyship. The liability of a principal debtor and the liability of a surety which is coextensive with that of the former are really separate liabilities, although arising out of the same transaction. Notwithstanding the fact that they may stem from the same transaction, the two liabilities are distinct. The liability of the surety does not also, in all cases, arise simultaneously.”Therefore in light of the various judgements a creditor is not bound to exhaust his remedy against the principal before suing the surety. A creditor may file a suit against the surety even before the filing a suit against the principal.
Void Agreements
Q. What is meant by void agreements?
A. As per Sec 24 the Indian Contract Act, 1872  “If  any part of a single consideration for one or more  objects, or  any  one or any part of any one of several  considerations  for  a single object, is unlawful, the agreement is void.”

As per the Act the following agreements are considered void:
  1. Agreements which have unlawful consideration and objects
The consideration or object of an agreement is unlawful if it is prohibited by law or is of such a nature that if permitted, will defeat the provisions of any law or is fraudulent or involves injury to the person or property of another or it is regarded as immoral or opposed to public policy.
  1. Agreements without consideration
An agreement without consideration is void unless (a) It is made on account of natural love and affection and it is expressed in writing and registered (b) It is a promise to compensate, a person for an act of the person (c) It is a promise to pay a time barred debt.
  1. Agreements in restraint of marriage
Every agreement in restraint of the marriage of any person, other than a minor is void.
  1. Agreements in restraint of trade
Agreements which is restrains one from exercising a lawful profession, trade or business of any kind, is to that extent void.
  1. Agreements in restraint of legal proceedings
Agreements which restrict a party from enforcing its rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which a party may enforce its rights, is void.
  1. Uncertain Agreements
Those agreements the meaning of which are not certain or clear are void.
  1. Agreements of wager
A wager is an agreement by which money is payable by one person to another on the happening or non- happening of a future, uncertain event, such agreements are considered void.
  1. Impossible acts
An agreement which requires performance of an act impossible act is void.
Appeal
Q. Where does an appeal lie?
A.
  1. The order of the District Forum can be challenged before the State Commission, within which’s jurisdiction the District Forum lies.
  2. The order of the State Commission can be challenged before the National Commission for Redressal of Consumer Disputes at New Delhi.
  3. The order of the National Commission can be challenged before the Supreme Court of India.
Commercial Purposes
Q. Goods or Services obtained for Commercial Purposes are covered under The Consumer Protection Act, 1986?
A. The definition of consumers provided in The Consumer Protection Act, 1986 clearly states that consumer means only those consumers who have purchased goods & services for their own use i.e. direct consumption. Purchases made for commercial or resale purposes are not covered under The Act.
Complaint
Q. Under The Consumer Protection Act, 1986 when can a consumer complaint be filed?
A. A bonafide and aggrieved consumer may file a consumer complaint in a forum of competent jurisdiction on the occurrence of any of the following -
  1. Goods purchased are found to be defective. Example when the service center of a mobile company refuses or fails to correct the defect in a mobile phone, the consumer can approach the forum for either replacement of the mobile phone and/or compensation.
  2. Any services hired or availed are deficient. Example medical negligence by any medical professional or a hospital.
  3. Trader or service provider adopts unfair or restrictive trade practices. Example misrepresentation relating to the quality of the goods or services provided.
  4. An amount more than the Maximum Retail price is charged for any goods or services. Example a retailer charging an amount higher than the MRP provided on the packaging of the article.
Consumer
Q. Who is a Consumer?
A. As per the definition provided in The Consumer Protection Act, 1986 "consumer" means any person who—
  1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
  2. hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;

Lucknow Development Authority v. M.K. Gupta, (III (1993) CPJ 7 (SC)), The Hon’ble Supreme Court has held, that the "word 'consumer' is a comprehensive expression. It extends from a person who buys any commodity to consume either as eatable or otherwise from a shop, business house, corporation, store, fair price shop to use of private or public services." Thus, the first part of the definition of 'consumer' deals with goods, while the second part pertains to services. Further observed, that both the aforesaid parts "first declare the meaning of goods and services by use of wide expressions their ambit is further enlarged by use of inclusive clause. For instance, it is not only purchaser of goods or hirer of services but even those who use the goods or who are beneficiaries of services with approval of the person who purchased the goods or who hired the services are included in it." The Supreme Court, concluded, that the "Act thus aims to protect the economic interest of a consumer as understood in commercial sense as a purchaser of goods and in the larger sense of user of services." Thus the "Act is aimed to protect the interests of a consumer as understood in commercial sense of the term as 'purchaser of goods' and in larger sense 'user of services'.
Contents
Q. What all should be included in the complaint?
A. A consumer complaint should contain the following information:

  1. Title - Name, address and description of both the parties
  2. Body - cause of action, facts, chain of events and jurisdiction clause.
  3. Annexures - Documents in support of the allegations contained in the complaint must be annexed with the complaint. Eg. Purchase invoice, correspondence, if any etc.
  4. Relief - Lastly the prayer clause, specifying the relief sought.
Doctors
Q. Are doctors covered under The Consumer Protection Act, 1986?
A. The Supreme Court has given a plethora of judgments on the point whereby it has been made amply clear that doctors are covered under the purview of The Consumer Protection Act, 1986 for deficiency of services and medical negligence and any aggrieved consumer can file a complaint against them in Consumer court and relief can be obtained by way of compensation.

In one such landmark judgement in the matter of Medical Association v/s V.P. Shantha & Ors (AIR 1996 SC 550) the Hon’ble Supreme Court had made the following observations –

  1. Medical and surgical services (consultation, diagnosis, treatment) rendered by a medical practitioner to a patient by way consultation, would fall within the ambit of 'service' as defined in section 2(1) (o) of the Act. Expecting the services rendered free of charge or under a contract of personal service.
  1. The expression 'contract of personal service' in section 2(1) (o) would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of 'service' as defined in section 2(1) (o) of the Act.
  1. Frere of charge services render at a Government hospital/health centre/dispensary or at non-government hospital/nursing home do not fall within the definition of "service" as defined in section 2(1) (o) of the Act.
  1. Service rendered at a non-government hospital/nursing home where charges are required to be paid by the person availing such services falls within the definition 'service' as defined in section 2(1) (o) of the Act.
  1. Service rendered at Government hospital/Health centre/ Dispensary or at a non-government Nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered free of charge services would fall within the definition 'service' as defined in section 2(1) (o) of the Act.
  1. Service rendered by a medical practitioner or a hospital/ nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care where under the charges of medical treatment are borne by the insurance company.
  1. Similarly the service rendered by a medical practitioner or a hospital/nursing home etc. fall within the definition 'service' as defined in section 2(1) (o) of the Act where the employer bears the expenses of medical treatment of an employee and his dependents.
Insurance Companies
Q. Are Insurance Companies covered under The Consumer Protection Act, 1986?
A. Section 2(1) (o) of the Consumer Protection Act, 1986 covers all kinds of insurance, such as fire, life, marine and property and hence insurance companies fall under the purview of The Act.

Section 2(1) (o)   "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of  facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

In Umedilal Agarwal v. United India Assurance Co. Ltd., Citation (1989)3 Comp LJ 143 (NCDRC) due to a breakout of fire the complainant suffered losses and when the complainant claimed the insurance amount, the insurance company denied the claim leading to a breach of contract. The National Commission observed that the insured was a consumer under the provision of section 2(1) (d) (ii) of the Consumer Protection Act, 1986 and held the insurance company liable for paying the compensation to the insured.
Jurisdiction
Q. Consumer complaint can be filed in which court/forum?
A. Territorial Jurisdiction

A consumer complaint may be filed before the consumer forum within whose territorial jurisdiction –

  1. cause of action wholly or in part arises; or 
  2. the Opposite Parties actually reside, carry on business or have a branch office; or
  3. any of the opposite parties , where there are more then one, at the time of the institution of the complaint, actually and voluntarily resides, or caries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution ;
Pecuniary Jurisdiction

The consumer complaint may be filed before different Courts depending on the cost of goods or services and compensation claimed. If the cost of goods or services and compensation claimed is:
  1. Up to Rs.20 lakh, the complaint should be filed with the concerned District Forum.
  2. Above Rs. 20 lakh but less than one crore, the complaint should be filed with the State Commission.
  3. Above Rs. one crore, the complaint should be filed with the National Commission (NCDRC).
Lawyer
Q. Consumer complaints can by directly filed by the consumer himself?
A. Yes, the consumer need not hire the services of a lawyer he can represent his case on his own.
Limitation
Q. What is the period of limitation for filing a consumer complaint?
A. A consumer complaint can be filed within two years from the date on which the cause of action arises i.e. from the date on which the deficiency in service arises or defect in goods is detected. An appeal has to be preferred within a period of thirty days from the date of the order.
Medical Negligence
Q. What can be termed as Medical Negligence?
A. Any deficiency in services provided by any medical practitioner or any failure on the part of any physician, surgeon, doctor, nurse etc. in the discharge their duty in accordance with medical standards amounts to Medical Negligence.

In the case of Bhajan Lal Gupta Vs Moolchand Khairati Ram (2000 (1) CPJ 31), the Hon’ble Supreme Court had stated that, “one of the tests of medical negligence is that something which is required under medical practice to be done was not done or what was done was contradicted at the same time. It is also a settled principle of law that a specialist is supposed to know the latest technique for management of the patient and if he is ignorant about it, then he could be considered to be negligent in his profession.”

Following acts can be construed as  Medical Negligence-
  • Prescribing the wrong dosage of medicines.
  • Leaving medical instruments or any such article used for an operation or surgery inside the body of a patient.
  • Failure to give proper instruction while prescribing medicine.
  • Lack of proper arrangements to meet an emergency.
  • Usage of wrong medicines or unsterilized equipments.
  • Lack of proper checks to test side effects of various drugs etc.
However it may be noted that a medical practitioner can not be held liable for the consequences of any medical procedure, treatment etc. which are beyond the control of the practitioner or any incident which occurs inspite of exercising reasonable care by the practitioner.
Postal Dept./Courier
Q. Can one initiate action against the postal department and courier company for any loss or damage caused to any post/parcel etc.?
A. The Indian Post Office Act, 1898 states that the postal department can be held liable for the loss in transit or damage of article/post/parcel etc. only if the consumer can prove any intentional or willful  on the part of the postal department.

However in case of a courier company a consumer can approach the Consumer court to avail compensation from courier company for the loss in transit or damage of article/post/parcel etc. The amount of compensation awarded is subject to the amount of maximum liability as printed in courier receipt, if any.
Relief
Q. What relief(s) can a consumer forum award to a complainant?
A. A consumer court/forum can pass the following orders against respondent for in order to compensate the aggrieved complainant -

The Court may order the defendant to –
  1. Replacement of defective goods with non-defective goods
  2. Removal of defects or deficiencies from the goods or service.
  3. Payment of compensation for any loss or injury that you may have suffered due to the negligence of the manufacturer or trader or service provider
  4. Refund of payment  made for procurement of goods or services
  5. Discontinuation of unfair or restrictive trade practice
  6. Withdrawal of hazardous goods from the market
  7. Compensation for any monetary loss and mental agony etc. with or without cost and/or interest, as ordered by the court.
Right to Information
Q. Is Right to Information covered under The Consumer Protection Act, 1986?
A. In case of S.P.Thirumala Rao vs Municipal Commissioner, Mysore (Revision Petition No. 1975 of 2005) the question was raised that whether the delay in providing the information to the applicant under the Right to Information Act, 2005 is covered under the Consumer Protection Act, 1986.

The National Consumer Disputes Redressal Commission had observed that in the present case by virtue of the provisions of Section 2(1) (o) i.e. ‘’…service includes service of any description which is made available to the potential users, which include purveying of news or supplying of other information of…’’ the Right to Information of the complainant would be covered under the Consumer Protection Act, 1986.
Scope
Q. What is the scope of Consumer Protection Laws in India?
A. The legislator has enacted The Consumer Protection Act, 1986 in order to promote and protect the interest of consumers against deficiencies and defects in goods or services obtained by them. The Act aims at securing the rights of consumers against unfair or restrictive trade practices.  The Act applies to all goods and services unless specifically exempted by the Central Government. It covers all the sectors whether private, public or cooperative. The provisions of the Act are compensatory in nature.

The remedy under the Consumer Protection Act is an alternative remedy. An aggrieved consumer can obtain relief by way of filing a civil suit. A written complaint (within 2 years from the date on which the cause of action has arisen), can be filed before the District Consumer Forum for pecuniary value of upto Rupees twenty lakh, State Commission for value upto Rupees one crore and the National Commission for value above Rupees one crore, in respect of defects in goods and or deficiency in service. If a consumer is not satisfied by the decision of a District Forum, he can appeal to the State Commission and if a consumer is dissatisfied by the decision of the State Commission then he may approach the National Commission.
Students
Q. Can students be covered under the definition of consumers?
A. Any student who pays a consideration in the form of fees etc. to an educational institute, coaching centre etc. may approach the consumer court for any deficiency or malpractice done by the educational institute.

The Supreme Court by way of various judgements has laid down that any deficiency of service such as allotment of incorrect roll numbers or similar roll numbers to more than one student Manisha Samal v. Sambal University (1992 1 CPR 215 Haryana CDRC) falls under the ambit of The Consumer Protection Act, 1986.

Further if an institute falsely represents that it is affiliated to a certain University, then the student is entitled to compensation as the said amounts to an unfair trade practice.

However in certain cases The Hon’ble Supreme Court has held that an University does not perform the services of taking examinations, checking answer sheets etc. and declaration of results of the for any consideration and thus the same cannot be regarded as consumer services.
Unfair trade practice
Q. What is the provision regarding "unfair trade practice” in The Consumer Protection Act, 1986?
A. As per Section 2 (r) of The Consumer Protection Act, 1986   "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely,-
  1. the practice of making any statement, whether orally or in writing or by visible representation which,-
    1. falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;
    2. falsely represents that the services are of a particular standard, quality or grade;
    3. falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods;
    4. represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;
    5. represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;
    6. makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;
    7. gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof:
    8. PROVIDED that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;
    9. makes to the public a representation in a form that purports to be-
      1. a warranty or guarantee of a product or of any goods or services; or
      2. a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result,
      if such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;
    10. materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;
    11. gives false or misleading facts disparaging the goods, services or trade of another person.

      Explanation : For the purposes of clause (1), a statement that is-
      1. expressed on an article offered or displayed for sale, or on its wrapper or container; or
      2. expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or
      3. contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public, shall be deemed to be a statement made to the public by, and only by, the person who had caused the statement to be so expressed, made or contained;
  2. permits the publication of any advertisement whether in any newspaper or otherwise, for the sale of supply at a bargain price, of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business, and the nature of the advertisement;.

    Explanation: For the purposes of clause (2), "bargaining price" means-

    1. a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise, or
    2. a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold;
  3. permits-
    1. the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole;
    2. the conduct of any contest, lottery, games of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest,
  4. permits the sale or supply of goods intended to be used, or are of a kind likely to be used, by consumers, knowing or having reason to believe that the goods do not comply with the standards prescribed by competent authority relating to performance, composition, contents, design, constructions, finishing or packaging as are necessary to prevent or reduce the risk of injury to the person using the goods;
  5. permits the hoarding or destruction of goods, or refuses to sell the goods or to make them available for sale or to provide any service, if such-hoarding or destruction or refusal raises or tends to raise or is intended to raise, the cost of those or other similar goods or services.
Alteration
Q. Can Articles of Association be altered after incorporation?
A. Subject to the provisions of The Companies Act, 1956 and the conditions contained in the Memorandum of Association of the company. A company may alter its Articles of Association by passing special resolution at a general meeting of members, provided that such alteration does not have the effect of converting a public limited company into a private company unless it has been approved by the Central Government.
Authorised Capital
Q. What is the minimum amount of Authorised Capital for a company?
A. The minimum authorised capital –
  1. for Private Limited Company – Rs.1,00,000/-
  2. For Public Limited Company – Rs.5,00,000/-
  3. Corporation - 5 Crores
  4. International, Globe, Universal, Continental, Inter-Continental, Asiatic, Asia, being the first word of the name -1 Crore
  5. If any of the words mentioned above is used within the name (with or without brackets) - 50 Lakhs
  6. Hindustan, India, Bharat, being the first word of the name - 50 Lakhs
  7. If any of the words  mentioned above is used within the name (with or without brackets) - 5 Lakhs
  8. Industries/ Udyog - 1 Crore
  9. Enterprises, Products, Business, Manufacturing -10 Lakhs
Branch/Project/Liaison Office
Q. What are the requirements for a Foreign company opening a branch in India?
A. Foreign Companies can set up their operations in India through -
  • Liaison Office/Representative Office
    Liaison office acts as a channel of communication between the principal place of business or head office and entities in India.  Liaison office can not undertake any commercial activity directly or indirectly and can not, therefore,  earn any income in India.  Its role is limited to collecting information about possible market opportunities and providing information about the company and its products to prospective Indian customers.  It can promote export/import from/to India and also facilitate technical/financial collaboration between parent company and companies in India.  Approval for establishing a liaison office in India is granted by Reserve Bank of India (RBI).
  • Project Office
    Foreign Companies planning to execute specific projects in India can set up temporary project/site offices in India. RBI has now granted general permission to foreign entities to establish Project Offices subject to specified conditions. Such offices can not undertake or carry on any activity other than the activity relating and incidental to execution of the project.  Project Offices may remit outside India the surplus of the project on its completion, general permission for which has been granted by the RBI.
  • Branch Office
    Foreign companies engaged in manufacturing and trading activities abroad are allowed to set up Branch Offices in India for the following purposes:
  1. Export/Import of goods
  2. Rendering professional or consultancy services
  3. Carrying out research work, in which the parent company is engaged.
  4. Promoting technical or financial collaborations between Indian companies and parent or overseas group company.
  5. Representing the parent company in India and acting as buying/selling agents in India.
  6. Rendering services in Information Technology and development of software in India.
  7. Rendering technical support to the products supplied by the parent/ group companies.
  8. Foreign airline/shipping Company.
Such offices can undertake any permitted activities. Companies have to register themselves with Registrar of Companies (ROC) within 30 days of setting up a place of business in India.
Commencement 
Q. When a company can be commenced?
A. A private company or a company having no share capital can commence its business immediately after it has been incorporated. However, other companies can commence their activities only after they have obtained Certificate of Commencement of Business.
Documents
Q. What are the documents required to be executed for incorporation?
A. The following documents are required to be executed for submission to the Registrar of Companies:
  1. Memorandum of Association and Article of Association – Memorandum of Association contains the constitution of the company, the objective and the scope of the company’s activities and its 'relationship' with the outside world. Articles of Association sets down the rules and regulations governing the internal affairs of the company.
  2. Form No. 1 - a declaration to be executed on a non-judicial stamp paper of INR 20 by one of the directors of the proposed company or other specified/authorised persons such as Attorneys or Advocates, etc. stating that all the requirements of the incorporation have been complied with.
  3. Form No. 18 – to be filed by one of the directors of the company informing the Registrar of Companies the registered office of the proposed company.
  4. Form No. 29 – form obtaining consent from all the proposed directors of a public company to act as directors of the proposed company.
  5. Form No. 32 - This is a form stating the fact of appointment of the proposed directors on the board of directors from the date of incorporation of the proposed company and is signed by one of the proposed directors.
  6. Power of Attorney signed by all the signees of MOA authorizing one person to act on their behalf for the purpose of incorporation.
Event Based Returns
Q. What are the Event Based Returns to be filed by a Company as required under The Companies Act, 1956?
A.
No. Event Occurred What to do and When
1. Any person is charged by the Board with the responsibilities of complying with any of the provisions of the Act. File Form No.1AA and 1AB within 30 days.
2. Person charged by the Board with the responsibilities complying with the provisions of the Act withdraws his consent. Form No.1AC to be filed within 30 days.
3. Allotment of shares. Form No.2 to be filed within 30 days from the date of allotment.
4. Allotment of shares for consideration other than cash. Form No.2 to be filed within 30 days along with a certified copy of the agreement entered into and an affidavit. Form No.3 also to be filed in stamp paper if there is no agreement reduced in writing.
5. Increase in Authorized Capital or consolidation, sub-division, redemption etc. of shares. Form No.5 to be filed within 30 days.
6. Charge created over the properties of the company or any modification made to the existing charge over the properties of the company. Form No.8 and 13 to be filed in triplicate within 30 days along with the certified copy of the agreement.
7. Charge created over the properties of the company in respect of series of Debentures. Form No.10 and 13 to be filed in triplicate within 30 days along with the certified copy of the agreement.
8. Charge created over the properties of the company satisfied in full. Form No.17 and 13 to be filed in triplicate within 30 days.
9. Shifting of the registered office of the company within the local limit. Form No.18 to be filed within 30 days.
10. Shifting of the registered office of the company outside the local limit within the state. Form No.18 to be filed along with Form 23 within 30 days.
11. When any public company passes resolution for the commencement of business as specified under Section 149(2A) of the Act. Form No.20A to be filed within 30 days along with Form 23.
12. Order passed by the Company Law Board or Court. Form No.21 to be filed along with certified copy of the Order of the Company Law Board or Court within the period specified in the Order.
13. Public company proposes to hold its statutory meeting. Form No.22 to be filed before 21 days of the meeting.
14. Any Special Resolution, resolution of the Board for the appointment/ reappointment or renewal appointment or variation in terms of the appointment of the Managing Director and resolutions passed as specified under Section 192(4) of the Act. Form No.23 to be filed within 30 days.
15. Board of Directors decided to keep books of accounts of the company at a place other than the registered office of the company. Form No.23AA to be filed within 7 days of passing board resolution.
16. A public company appoints or reappoints Managing Director, Whole-time Director or manager. Form No.25C to be filed within 90 days.
17. Change among Directors namely, appointment, resignation and cessation etc. Form No.32 to be filed in duplicate within 30 days and Form No.29 also to be filed for the appointment of directors in case of public companies.
18. A company accepts or renews deposits. Text of Advertisement or statement in lieu of Advertisement to be filed before accepting or renewing deposit.
19. A company accepts, renews or holds deposits. Returns of Deposits to be filed on or before 30th June every year.
20. Declarations received from persons having beneficial interest in shares of the companies. Form No. III to be filed within 30 days of receipt of intimation (vide Section 187C(4) of the Act).
21. Buy back of shares up to 10% of paid up capital. Offer document and declaration of solvency before issue of offer documents and Return of Deposit within 30 days of completion of buy back.
22. Buy back of shares between 10 and 25% of paid up capital. Form 23 within 30 days of Special Resolution, Offer documents, Declaration of solvency before issue of offer documents and Return of Deposit within 30 days of completion of buy back.
Formation
Q. What are steps involved in the formation of a company?
A. For the formation of a company one needs to take the following steps –
  • For the formation of a company one needs to take the following steps –
  • Select the type of company (private, public, non-profit making etc.). Defining the object & purpose of the company, proposed scale of operations, capital etc.
  • Selecting the name of the company. Six names are required to be selected in order of preference as per the provisions, circulars and rules etc. made by the Ministry of Corporate Affairs, etc.
  • Next apply for DIN (Director Identification Number) to the Central Government in the prescribed DIN Form. As per section 253 of the Companies Act, 1956, no company shall appoint or re-appoint any individual as director of the company unless he has been allotted a Director Identification Number under section 266B.
  • Obtaining digital signatures. It is compulsorily required to obtain digital signatures of at least one director to sign the e-Form 1A and other documents.
  • Preparing the Memorandum of Association (MOA) and Articles of Association (AOA). The main objects should match with the objects shown in e-Form. A public company has the option of inviting the public for subscription to its share capital. Accordingly, the company has to draft and issue a prospectus, which provides information about the company to potential investors.
  • Once all the requisite documentation has been done then filing of documents for Company Registration with the Registrar of Companies (Form 1, Form 18, Form 32, Power of attorney etc.)
  • Business may be commenced on receiving the Certificate of Incorporation in case of private company and public company may commence business on receiving certificate of commencement.
FTE
Q. What are the criteria for filing an application under the "Fast Track Exit (FTE) Mode"?
A. Ministry of Corporate Affairs has issued Guidelines for "Fast Track Exit (FTE) Mode" to give opportunity to the defunct companies to get their names struck off from the register under Section 560 of the Companies Act, 1956 in time bound manner. The Guidelines were to be implemented with effect from 3rd July, 2011.

There are two main criteria for applying :-
  • The company applying under FTE should not have any asset and liability.
  • The company should not have commenced any business activity or operation since incorporation or at least one year must has been passed since last business activity or operation.
Q. Which are the companies to whom FTE is not applicable?
A. The guidelines does not inter-alia cover the listed companies, companies that have been de-listed due to non-compliance of listing agreement or any other statutory Laws, section 25 companies, vanishing companies, companies under inspection/investigation, companies against which prosecution for a non-compoundable offence is pending in court, companies having outstanding public deposits or secured loan or dues towards banks and financial institutions or any other Government Departments etc. or having management dispute or company in respect of which filing of documents have been stayed by court or CLB or Central Government or any other competent authority.
Listing of Companies
Q. What action can be taken by a Company if stock exchanges refuse to accept its application for listing of shares or debentures?
A. Every Company going for public issue shall make an application to stock exchange(s) for obtaining the permission for listing of such shares or debentures. The prospectus shall state that application has been made for obtaining listing permission and names of such stock exchange(s). If the permission has not been applied for or having applied for has not been granted by the stock exchange(s) before the expiry of 10 weeks from the date of the closing of the subscription list the allotment made shall become void. [Sec.73(1)]. An appeal may be preferred against the refusal with Securities Appellate Tribunal & in the allotment shall not be void until the dismissal of appeal.
Minimum Number of Members
Q. What are the consequences if the members of a company are reduced below the statutory minimum required by law?
A. Section 12 of the Companies Act, 1956 requires a public Company to have a minimum of seven members. If at any time the membership of a public Company falls below seven and the situation prevails for more than six months, then as laid down in Section 45 of the Companies Act, 1956, every such member who is aware of this fact, will be held individually (personally) liable for the debts contracted after six months. Further only those members who knew this fact of reduced membership shall be liable and the liability shall extend only to the debts contracted after six months from the date of auction of that member’s shares.
Non-Registration
Q. What are the consequences of non-registration?
A. An unregistered association is not recognised by law. An illegal association cannot enter into any contract, cannot sue any members or any outsider, and cannot be sued by any members or outsiders for any of its debts. The members of the unregistered association are personally liable for the obligations of the unregistered association.
Number of Members
Q. Can a shareholder of a private company continue the business of the company on death of one of the total two shareholders?
A. As per the provisions laid down in Sec 45 of The Companies Act, 1956, the remaining shareholder may carry on the business of the company however if the same position continues for more than six months, then the said shareholder will become personally liable for all the liabilities of the Company contracted after six months from the date on which the becomes only shareholder.

Sec 45. Members severally liable for debts where business carried on with fewer than seven, or in the case of a private company, two members.

If at any time the number of members of a company is reduced in the case of a public company, below seven, or in the case of a private company, below two, and the company carries on business for more than six months while the number is so reduced, every person who is a member of the company during the time that it so carries on business after those six months and is cognizant of the fact that it is carrying on business with fewer than seven members or two members, as the case may be, shall be severally liable for the payment of the whole debts of the company contracted during that time, and may be severally sued therefor.
Private Limited Company
Q. What is meant by a Private Limited Company as per The Companies Act, 1956?
A. As per the definition provided in The Companies Act, 1956, a "private company" [means a company which has a minimum paid-up capital of one lakh rupees or such higher paid-up capital as may be prescribed, and by is articles, -]
restricts the right to transfer its shares, if any;
  1. limits the number of its members to fifty not including -
    1. persons who are in the employment of the company; and
    2. persons who, having been formerly in the employment of the company, were members of the company while in that employment and have continued to be members after the employment ceased; and
  2. prohibits any invitation to the public to subscribe for any shares in, or debentures of, the company;
  3. prohibits any invitation or acceptance of deposits from persons other than its members, directors or their relatives:
Provided that where two or more persons hold one or more shares in a company jointly, they shall, for the purposes of this definition, be treated as a single member.
Public Limited Company
Q. What is meant by a Public Limited Company as per The Companies Act, 1956?
A. As per the provisions laid down in The Companies Act, 1956, a "public company" is a Company limited by shares. In a public company there is no restriction on the maximum number of shareholders, transfer of shares and acceptance of public deposits. Wherein the liability of each shareholder is limited to the extent of the unpaid amount of the shares face value and the premium thereon in respect of the shares held by him. However, the liability of a Director / Manager of such a Company can at times be unlimited. The minimum number of shareholders is 7
Quorum
Q. What is the stipulated Quorum for meetings of Board of directors?
A. The quorum for a meeting of the Board of directors of a company is required to be one-third of its total strength or two directors, which ever is higher.

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

Interested director means any director whose presence cannot, by reason of his being interested in some manner in the subject matter of discussion be counted for the purpose of forming a quorum at a meeting of the Board, at the time of the discussion or vote on any matter.
Removal of Director
Q. How a director can be removed from his office as laid down in The Companies Act, 1956?
A. Section 284 of The Companies Act, 1956 lays down the following procedure for the removal of a director -

Sec 284. Removal of directors
  1. A company may, by ordinary resolution, remove a director (not being a director appointed by the Central Government in pursuance of section 408) before the expiry of his period of office :

    Provided that this sub-section shall not, in the case of a private company, authorise the removal of a director holding office for life on the 1st day of; April, 1952, whether or not he is subject to retirement under an age limit by virtue of the articles or otherwise : Provided further that nothing contained in this sub-section shall apply where the company has availed itself of the option given to it under section 265 to appoint not less than two-thirds of the total number of directors according to the principle of proportional representation.
  2. Special notice shall be required of any resolution to remove a director under this section, or to appoint somebody instead of a director so removed at the meeting at which he is removed.
  3. On receipt of notice of a resolution to remove a director under this section, the company shall forthwith send a copy thereof to the director concerned, and the director (whether or not he is a member of the company) shall be entitled to be heard on the resolution at the meeting.
  4. Where notice is given of a resolution to remove a director under this section and the director concerned makes with respect thereto representations in writing to the company (not exceeding a reasonable length) and requests their notification to members of the company The company-shall unless the representations are received by it too late for it to do so,-
    1. In any notice of the resolution given to members of the company, state the fact of the representations having been made; and
    2. Send a copy of the representations to every member of the company to whom notice of the meeting is sent (whether before or after receipt of the representations by the company);

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

      Provided that copies of the representations need not be sent out and the representations need not be read out at the meeting if, on the application either of the company or of any other person who claims to be aggrieved, the 1[Central Government] is satisfied that the rights conferred by this sub-section are being abused to secure needless publicity for defamatory matter; and the 1[Central Government] may order the company's costs on the application to be paid in whole or in part by the director notwithstanding that he is not a party to it.
  5. A vacancy created by the removal of a director under this section may, if he had been appointed by the company in general meeting or by the Board in pursuance of section 262, be filled by the appointment of another director in his stead by the meeting at which he is removed, provided special notice of the intended appointment has been given under sub-section (2).

    A director so appointed shall hold office until the date up to which his predecessor would have held office if he had not been removed as aforesaid.
  6. If the vacancy is not filled under sub-section (5), it may be filled as a casual vacancy in accordance with the provisions, so far as they may be applicable, of section 262, and all the provisions of that section shall apply accordingly :

    Provided that the director who was removed from office shall not be re-appointed as a director by the Board of directors.
  7. Nothing in this section shall be taken-
    1. as depriving a person removed thereunder of any compensation or damages payable to him in respect of the termination of his appointment as director or of any appointment terminating with that as director; or
    2. as derogating from any power to remove a director which may exist apart from this section.
Resignation
Q. In case if the Board of director does not accept a director’s resignation then what option does he have for resigning from his office?
A. The Companies Act, 1956 does not contain any provisions governing resignation of director. Resignation means giving up or relinquishment of ones right. If there is any provision in the articles of the company giving the right to a direction to resign at any time, the resignation will take affect without any need for its acceptance by the Board. Where a director is elected or has contracted to act for a fix period, his resignation before the expiration of the period may make him liable for damages, unless the article permits such resignation.

Generally for resignation a director must serve a Notice of resignation upon the company or the board and ensure acceptance of the same by them. Resignation is advisable to be in written provided it indicates the time when it is to take effect and is recorded in order to avoid any future complications that may arise.
ROC
Q. Where can the company under the Companies Act, 1956 be registered?
A. The Company can be registered with the Registrar of Companies of the state under whose jurisdiction the proposed company’s registered office will be situated.
Statutory Returns
Q. What are the Statutory Returns to be filed by a Company as required under The Companies Act, 1956?
A.
S. No. Class of Companies What to file When to file Penal Provision for default
1. Companies having share capital. Annual return in Schedule V If AGM is held within 60 days from the date of every AGM. If no AGM is held within 60 days from the date on which the AGM ought to have been held. The company and every officer of the company who is in default shall be punishable with fine which may extend to Rs.500/- for everyday during which the default continues (Section 162).
2. Companies not having share capital Annual Return in Form No.21A -- DO -- The company and every officer of the company who is in default shall be punishable with fine which may extend to Rs.500/- for everyday during which the default continues (Section 162)
3. Private Limited companies Balance Sheet and Profit & Loss A/c separately. If AGM is held within 30 days from the date of AGM. If no AGM is held, within 30 days from the date on which the AGM ought to have been held. The company and every officer of the company who is in default shall be punishable with fine which may extend to Rs.500/- for everyday during which the default continues (Section 220 (3))
4. Public Limited companies Balance Sheet and Profit and Loss A/c together -- DO -- The company and every officer of the company who is in default shall be punishable with fine which may extend to Rs.500/- for everyday during which the default continues (Section 220(3))
5. Companies having paid up capital of Rs.10 lacs or more but less than Rs.2 Crores. Secretarial compliance certificate -- DO -- The company and every officer of the company who is in default shall be punishable with fine which may extend to Rs.500/- for everyday during which the default continues (Section 383(1A))
Subsidiary of foreign company
Q. What are the requirements for a Foreign company forming a subsidiary in India?
A. Foreign companies can set up wholly-owned subsidiary in sectors where 100% foreign direct investment is permitted under the FDI policy. For registration and incorporation, an application has to be filed with Registrar of Companies (ROC). Once a company has been duly registered and incorporated as an Indian company, it is subject to Indian laws and regulations as applicable to other domestic Indian companies.

Further the company is required to seek governmental approval before investing in India. Some approvals are automatic (approvals from The Reserve Bank of India) and no prior approval is required for FDI under the Automatic Route. Only information to the RBI within 30days of inward remittances or issue of shares to Non Residents is required. Special permission (approvals from The Foreign Investment Promotion Board) could be obtained to invest over and above the regular percentage allowed.
Validity Period of Approved Name
Q. What is the validity period of the Name approved?
A. The approved name is valid for a period of 6 months from the date of approval. The Applicant can renew the name within 6 months by submitting a fresh Name application (Form-1A) along with the fees of Rs.500/-, by mentioning that the application is for renewal of the name already approved. (Names inadvertently allowed or which are against the guidelines, which have subsequently come to the notice, may be withdrawn by the RoC before or after incorporation of the company).
After obtaining Information
Q. What action is to be taken after receiving the information?
A. The future course of action depends upon your intention behind obtaining the information. In case if the information obtained by you exposes certain loopholes, corrupt practices etc. then you may complain to vigilance agencies, CBI or even file an FIR with the police. But it is seen that the Government does not take any action against the guilty even after repeated complaints or even approach the media.
Appeals
Q. What is prescribed time limit for filing Appeals with the appellate authorities under The Act?
A.
  1. The First Appeal may be filed with the officer senior in rank to the PIO in the concerned Public Authority within 30 days from the expiry of the prescribed time limit or from the receipt of the decision.
  2. Second appeal is required to be filed with the Central Information Commission or the State Information Commission as the case may be, within 90 days from the date on which the decision was given or should have been made by the First Appellate Authority.
  3. Third Party appeal against PIO’s decision must be filed within 30 days before first Appellate Authority; and, within 90 days of the decision on the first appeal, before the appropriate Information Commission which is the second appellate authority.
The burden of proving that denial of Information was justified lies with the PIO. Further the First Appeal shall be disposed of within 30 days from the date of its receipt as laid down in Sec 19 of The Act.
Covered Organisations
Q. The Act covers which Organisations? Are Private bodies covered under the Act?
A. All bodies, which are constituted under the Constitution or under any law or under any Government notification or all bodies, including NGOs, which are owned, controlled or substantially financed by the Government are covered under the Act excluding the State of Jammu and Kashmir.

Further all private bodies, which are owned, controlled or substantially financed by the Government, are directly covered under the Act. However other bodies are indirectly covered under the Act, meaning thereby that if a government department can access information from any private body under any other Act at the time being in force, then such private bodies may be accessed by the citizen under the Act through that government department.
Excluded Organisations
Q. Which are the Organisations exempted from the Right to Information Act, 2005?
A. As per Sec 24 of the Act the following bodies do not fall under the purview of The Act -

Central Intelligence and Security agencies specified in the Second Schedule like IB, R&AW, Directorate of Revenue Intelligence, Central Economic Intelligence Bureau, Directorate of Enforcement, Narcotics Control Bureau, Aviation Research Centre, Special Frontier Force, BSF, CRPF, ITBP, CISF, NSG, Assam Rifles, Special Service Bureau, Special Branch (CID), Andaman and Nicobar, The Crime Branch-CID-CB, Dadra and Nagar Haveli and Special Branch, Lakshadweep Police. Agencies specified by the State Governments through a Notification will also be excluded.

The exclusion, however, is not absolute and these organizations have an obligation to provide information pertaining to allegations of corruption and human rights violations. Further, information relating to allegations of human rights violations could be given but only with the approval of the Central or State Information Commission, as the case may be.
Form
Q. Is there an application form for seeking information?
A. In case of Central Government Departments, there is no particular form or format required, the application can be made like any other application.

However, many states and departments have prescribed certain formats. Information on the same is available in the rules pertaining to the state.
Format for First Appeal
Q. Can you provide the specimen of Format of First Appeal under the Right to Information Act, 2005?
A. When no reply is received in 30 days from the date of application requesting information then a First Appeal may be filed. First Appeal Must be made within 60 days of receipt of RTI application by PIO.
 
Annexure B
Affix Court fee stamp Rs. 20/-
See Rule 5 (1)
Appeal under Section 19 (1) of the Right To Information Act 2005
From:
(Appellant’s name and address)
_____________________
_____________________

To: First Appellate Authority
C/o Public Information Officer,
_____________________
_____________________

  1. Full name of the Appellant:
  2. Address:
  3. Particulars of the State Public information officer: PIO, Dept, Address
  4. Date of receipt of the order appealed against: Not received.
  5. Last date for filing the appeal: (60 days from application date).
  6. The grounds for appeal:
  7. Relief Sought:
  8. Particulars of information-
    Nature and subject matter of the information required:
    Name of the office or department to which the information relates:
Place:
Date:
Signature of appellant
Enclosed: Copy of RTI application of with proof of receipt by PIO.
Format for Second Appeal
A.
Annexure “C”
Affix 20 rupees Court fee stamps.
See Rule 5 (2)
Second appeal under Section 19 (3) of the Right To Information Act, 2005
From:
(Appellant’s name and address)
_____________________
_____________________

To,
The Chief Information Commissioner,
_____________________
_____________________

  1. Full name of the Appellant:
  2. Address:
  3. Particulars of the State Public Information Officer:
  4. Particulars of the First Appellate Authority:
  5. Date of Receipt of order appealed against:
  6. Last date for filing appeal:
  7. The grounds of appeal:
  8. Particulars of information-
    Nature and subject matter of the information required:
    Name of the office or department to which the information relates:
Place:
Date:
Signature of Appellant
Encl.: Copies of:

1. Annexure A
2. Annexure B.
3. Copy of acknowledgements
Format of Application
Q. Con you provide the specimen of Format of application for obtaining information under the Right to Information Act, 2005?
A. Format Of Application For Seeking Information Under The Right To Information Act-2005
 
Appendix A
Affix 10 rupee Court fee stamp.
(see Rule 3)
Second appeal under Section 19 (3) of the Right To Information Act, 2005
The Public Information Officer,
( Designation and address of the concerned office)
_____________________
_____________________

  1. Full name of the Appellant:
  2. Address:
  3. Particulars of Information required:
    1. Subject matter of information:
    2. The period to which information relates:
    3. Description of Information required:
    4. Whether information is required by post or in person: Post
    5. In case by post: Ordinary, registered or Speed post): Speed Pos
  4. Whether applicant is below poverty line: Not applicable (if so attach photocopy of below poverty line card.
Place:
Date:
Signature of Appellant
Functions of Information Commissions
Q. What are the powers and functions of Information Commissions under The Act?
A.
  1. The Central Information Commission/ State Information Commission has a duty to receive complaints from any person –
    1. who has not been able to submit an information request because a PIO has not been appointed;
    2. who has been refused information that was requested;
    3. who has received no response to his/her information request within the specified time limits;
    4. who thinks the fees charged are unreasonable ;
    5. who thinks information given is incomplete or false or misleading; and
    6. any other matter relating to obtaining information under this law.
  2. Power to order inquiry if there are reasonable grounds.
  3. CIC/SCIC will have powers of Civil Court such as-
    1. summoning and enforcing attendance of persons, compelling them to give oral or written
    2. evidence on oath and to produce documents or things;
    3. requiring the discovery and inspection of documents;
    4. receiving evidence on affidavit ;
    5. requisitioning public records or copies from any court or office
    6. issuing summons for examination of witnesses or documents
    7. any other matter which may be prescribed.
  4. All records covered by this law (including those covered by exemptions) must be given to CIC/SCIC during inquiry for examination.
  5. Power to secure compliance of its decisions from the Public Authority includes-
    1. providing access to information in a particular form;
    2. directing the public authority to appoint a PIO/APIO where none exists;
    3. publishing information or categories of information;
    4. making necessary changes to the practices relating to management, maintenance and destruction of records ;
    5. enhancing training provision for officials on RTI;
    6. seeking an annual report from the public authority on compliance with this law;
    7. require it to compensate for any loss or other detriment suffered by the applicant ;
    8. impose penalties under this law; or reject the application.
Meaning
Q. What is Right to Information? What is the extent of Rights covered under the Right to Information Act, 2005?
A. After a plethora of judgments passed by The Hon’ble Supreme Court the concept of an open government came to a fore and wherein Article 19(1) of our Constitution was liberally interpreted and it was concluded that the guarantee of freedom of speech and expression elevated the right to know and the right to information to the status of a fundamental right and thus The Right to Information Act came into force on October, 2005 with the object of providing Right to Information to empower the citizens by promoting transparency and accountability in the functioning of the Government.

Information is any material in any form. It includes records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form. It also includes information relating to any private body which can be accessed by the public authority under any law for the time being in force.

As per Sec 2 (j) the Right to Information includes the Right to –
  1. inspect work, documents, records;
  2. take notes, extracts or certified copies of documents or records;
  3. take certified samples of material;
  4. obtain information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.
Non-acceptance
Q. Can a PIO refuse to accept any RTI application? What can be done if a PIO refuses to accept an application?
A. Under no circumstances can a PIO refuse to accept any application for information. Even if the information does not pertain to his department/jurisdiction, the PIO has to accept such application and is required to transfer it to the concerned PIO within 5 days as laid down in sec 6(2) of The Act.

In case if a PIO refuses to accept any application preferred under The Act then the applicant can make a formal complaint to the respective Information Commission as laid down in section 18 of The Act. The Information Commissioner has the power to impose a penalty on the concerned officer who refused to accept the application. Further applications can also be sent by post. It is always advisable for the applicant to retain a copy of the application alongwith postal acknowledgment receipts etc.
Penalty
Q. What are the provisions regarding penalty under The Act?
A. As per Sec 20 of The Act every PIO will be liable for fine of Rs. 250 per day, up to a maximum of Rs. 25,000/-, for –
(i) not accepting an application;
(ii) delaying information release without reasonable cause;
(iii) malafidely denying information;
(iv) knowingly giving incomplete, incorrect, misleading information;
(vi) destroying information that has been requested and
(v) obstructing furnishing of information in any manner.

The Information Commission (IC) at the Centre and the State levels will have the power to impose this penalty. The Information Commission can also recommend disciplinary action for violation of the law against an erring PIO.
Procedure
Q. What is the Application Procedure for requesting information?
A.
  1. Apply in writing or through electronic means in English or Hindi or in the official language of the area, to the PIO, specifying the particulars of the information sought for.
  2. Reason for seeking information are not required to be given;
  3. Pay fees as may be prescribed (if not belonging to the below poverty line category).
Public Authority
Q. What does a ‘Public Authority’ mean?
A. It means any authority or body or institution of self-government established or constituted:
  • by or under the Constitution;
  • by any other law made by Parliament;
  • by any other law made by State Legislature;
  • by notification issued or order made by the appropriate Government.
and includes any-
  • body owned, controlled or substantially financed
  • NGOs substantially financed directly or indirectly by the appropriate Government.
Public Information Officers
Q. Who are Public Information Officers? What are his duties?
A.

Public Information Officers (PIOs) are officers designated by the public authorities in all administrative units or offices under it to provide information to the citizens requesting for it. Any officer, whose assistance is sought by the PIO for discharge of his duties, shall render all assistance to the PIO and for the such other officer shall be treated as a PIO.

Duties:

  • PIO shall deal with requests from persons seeking information and where the request cannot be made in writing, to render reasonable assistance to the person to reduce the same in writing.
  • If the information requested for is held by or its subject matter is closely connected with the function of another public authority, the PIO shall transfer, within 5 days, the request to that other public authority and inform the applicant immediately.
  • PIO may seek the assistance of any other officer for the proper discharge of his/her duties.
  • 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 specified in Sec 8 or Sec 9 of the Act.
  • Where the information requested for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request.
  • If the PIO fails to give decision on the request within the period specified, he shall be deemed to have refused the request.
  • Where a request has been rejected, the PIO shall communicate to the requester - (i) the reasons for such rejection, (ii) the period within which an appeal against such rejection may be preferred, and (iii) the particulars of the Appellate Authority.
  •  PIO shall provide information in the form in which it is sought unless it would disproportionately divert the resources of the Public Authority or would be detrimental to the safety or preservation of the record in question.
  • PIO shall provide information in the form in which it is sought unless it would disproportionately divert the resources of the Public Authority or would be detrimental to the safety or preservation of the record in question.
  • If allowing partial access, the PIO shall give a notice to the applicant, informing:
  • that only part of the record requested, after severance of the record containing information which is exempt from disclosure, is being provided;
  • the reasons for the decision, including any findings on any material question of fact, referring to the material on which those findings were based;
  • the name and designation of the person giving the decision;
  • the details of the fees calculated by him or her and the amount of fee which the applicant is required to deposit; and his or her rights with respect to review of the decision regarding non-disclosure of part of the information, the amount of fee charged or the form of access provided.
  • If information sought has been supplied by third party or is treated as confidential by that third party, the PIO shall give a written notice to the third party within 5 days from the receipt of the request and take its representation into consideration.
  • Third party must be given a chance to make a representation before the PIO within 10 days from the date of receipt of such notice.
Time Limit
Q. What is the time limit to get the information?
A. The PIO is required to provide the requisite information to the concerned citizen within -
  • 30 days from the date of application
  • 48 hours for information concerning the life and liberty of a person
  • 30 days or 48 hours as the case may be plus an additional 5 days, in case the application for information is given to Assistant Public Information Officer.
  • 40 days, if the interests of a third party are involved then time limit will be 40 days
Undisclosed Information
Q. What information cannot be disclosed by PIO?
A. Sections 8 and 9 of the Act enumerate the categories of information which are exempt from disclosure.  At the same time Schedule II of the Act contains the names of the Intelligence and Security Organisations which are exempt from the purview of the Act. The exemption of the organisations, however, does not cover supply of information relating to allegations of corruption and human rights violations.

As per the Act the following information is not to be provided to the citizens –
  1. information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence
  2. information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
  3. information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;
  4. information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
  5. information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
  6. information received in confidence from foreign Government;
  7. information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes
  8. information which would impede the process of investigation or apprehension or prosecution of offenders
  9. cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers;
  10. information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual;
  11. Notwithstanding any of the exemptions listed above, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.
Amendment
Q. Is it possible to amend the Patent Specification once filed?
A. The Patents Act, 1970 accepts two types of amendments. After the receipt of the First Examination Report, amendments may be made to comply with the requirements of the Report. These are involuntary amendments made at the instance of the Patent Office and the same can be done free of cost.

In addition, voluntary amendments are also possible by filing Form 13 on payment of the prescribed fee. Voluntary amendments can be made either before or after the grant of the Patent.

However, amendments cannot be made for the purpose of increase in the scope of the claims or for incorporating additional disclosure.
Application Procedure
Q. What is the application procedure?
A. A patent application can be filed with Indian Patent Office either with complete specification or with provisional specification along with fee as prescribed in schedule I. In case the application is filed with provisional specification, then one has to file complete specification within 12 months from the date of filing of the application. There is no extension of time to file complete specification after expiry of said period.

An application for patent has to be made in Form 1 (duplicate) and shall be accompanied by prescribed fee (Rs. 1000/- for individual and Rs. 4000/- for artificial legal entities), Form 2 (provisional or complete specification) and Form 3 (a declaration and undertaking regarding the foreign patent filings of the same invention).
Meaning
Q. What is meant by the term Patent?
A. A Patent is a statutory right granted by the Government for a limited period to a patentee for an invention in exchange of full disclosure of his invention for excluding others, from making, using, selling or importing the patented product or process without the prior consent of the patentee.
Non Compliance with FER
Q. What happens if the requirements of the First Examination Report (FER) are not complied within the stipulated time? Will the applicant have a right of hearing and appeal?
A. If the requirements of the FER are not completed within the stipulated time, the application is deemed to have been abandoned. In case of abandonment, the Controller does not pass any speaking order but merely informs the applicant that the application has been abandoned. In such a case, the applicant does not have any right of appeal, but the aggrieved applicant can either file a Review Petition under Rule 130 of the Patent Rules before the Controller of the Patent or file a Writ petition under Art.226 of the Constitution.

Under the Patents Act, there is no automatic right of hearing before the rejection of the Patent application. If an applicant is very keen to have an oral hearing, he must specifically request for hearing. If the Controller rejects the application, even after hearing, the applicant can file an appeal within 90 days to the Intellectual Property Appellate Tribunal (IPAT) within 90 days of the order of rejection. As on date, the jurisdiction to hear patent appeal has not yet been conferred on IPAT and hence, the High Courts within whose jurisdiction the Patent Office is located are empowered to entertain Miscellaneous Appeal.
Patent Agent
Q. What is meant by patent agent and what are the eligibility criteria of becoming a patent agent?
A. A Patent agent is a registered person with Indian Patent Office whose name is entered in the patent agent register after being declared qualified the patent agent examination conducted by the patent office and who is entitled—

(a) to practice before the Controller; and
(b) to prepare all documents, transact all business and discharge such other functions as may be prescribed in connection with any proceeding before the Controller under this Act.

Eligibility conditions for registration as patent agents are below.-
A person shall be qualified to have his name entered in the register of patent agents if he fulfills the following conditions, namely—
(a) he is a citizen of India;
(b) he has completed the age of 21 years;
(c) he has obtained a degree in science, engineering or technology from any university established under law for the time being in force in the territory of India or possesses such other equivalent qualifications as the Central Government may specify in this behalf, and, in addition,—
(i) has passed the qualifying examination prescribed for the purpose; or
(ii) has, for a total period of not less than ten years, functioned either as an examiner or discharged the functions of the Controller under section 73 or both, but ceased to hold any such capacity.
Patent Office Journal
Q. What is the Patent office Journal?
A. The Patent office Journal contains information relating to patent applications which are published u/s 11A, post grant publication, restoration of patent, notifications , indexes, list of non-working patents and notices Issued by the Patent Office relating to Patents, etc..

The Patent office Journal can be subscribed by making payment of Rs 400/- in cash or by DD/cheque in favour of the Controller of Patents. This is also available in CD form. However, the journal can be downloaded from the website free of charge
Patent Pending or Patent Applied For
Q. Can one use the words "Patent Pending" or "Patent Applied For"?
A. These words are normally used by the patent applicant to their products after filing his application for patent so that the public is made aware that a patent application has been filed in respect of that invention. Use of these words where no application has been made is prohibited under the Patent law. However, use of such words by the patent applicant does not prohibit the third party to plead as innocent unless the patent number is indicated.
Patentability
Q. What are the criteria for patentability of any invention?
A. An invention to become patentable must meet the following criteria –
1. It should be novel.
2. It should have inventive step or it must be non-obvious
3. It should be capable of Industrial application.
4. It should not fall within the provisions of section 3 and 4 of the Patents Act 19
Patentable
Q. What inventions can be patented?
A. Any invention which meets all the criteria of patentability is relating either to a product or process that is new, involving inventive step and capable of industrial application can be patented.
Post Examination
Q. What happens to a patent application once it is examined?
A. After examination, the Patent office issues an examination report to the applicant which is generally known as First Examination Report (FER). Thereafter the applicant is required to comply with the requirements within a period of twelve months from the date of FER. In case, the application is found to be in order for grant, the patent is granted, provided there is no pre-grant opposition is filed or pending. A letter patent is issued to the applicant. However, in case a pre-grant opposition is pending, the further action is taken after disposition of the pre-grant opposition.
Post-Grant Opposition
Q. What are requirements of post-grant?
A. The time for filing post-grant opposition is 12 months from the date of publication of the grant of patent in the official journal of the patent office.

The grounds for filing post-grant opposition are contained in section 25(2) of the Patents Act 1970

Section 25(2) in The Patents Act, 1970

(2) Where any such notice of opposition is duly given, the Controller shall notify the applicant and shall give to the applicant and the opponent an opportunity to be heard before deciding the case
Pre-Grant Opposition
Q. What are requirements of a pre-grant opposition?
A. A representation for pre-grant opposition can be filed within six months from the date of publication of the application u/s 11A or before the grant of patent. The grounds on which the representation can be filed are provided u/s 25(1) of the Patents Act 1970.

The grounds for filing post-grant opposition are contained in section 25(1) of the Patents Act 1970.

Section 25(1) in The Patents Act, 1970 –
  1. At any time within four months from the date of advertisement of the acceptance of a complete specification under this Act (or within such further period not exceeding one month in the aggregate as the Controller may allow on application made to him in the prescribed manner before the expiry of the four months aforesaid) any person interested may give notice to the Controller of opposition to the grant of the patent on any of the following grounds, namely:-
  1. that the applicant for the patent or the person under or through whom he claims, wrongfully obtained the invention or any part thereof from him or from a person under or through whom he claims;
  2. that the invention so far as claimed in any claim of the complete specification has been published before the priority date of the claim- (i) in any specification filed in pursuance of an application for a patent made in India on or after the 1st day of January, 1912 ; or (ii) in India or elsewhere, in any other document: Provided that the ground specified in sub- clause (ii) shall not be available where such publication does not constitute an anticipation of the invention by virtue of sub- section (2) or sub- section (3) of section 29;
  • that the invention so far as claimed in any claim of the complete specification is claimed in a claim of a complete specification published on or after the priority date of the applicant' s claim and filed in pursuance of an application for a patent in India, being a claim of which the priority date is earlier than that of the applicant' s claim;
  • that the invention so far as claimed in any claim of the complete specification was publicly known or publicly used in India before the priority date of that claim. Explanation.- For the purposes of this clause, an invention relating to a process for which a patent is claimed shall be deemed to have been publicly known or publicly used in India before the priority date of the claim if a product made by that process had already been imported into India before that date except where such importation has been for the purpose of reasonable trial or experiment only;
  • that the invention so far as claimed in any claim of the complete specification is obvious and clearly does not involve any inventive step, having regard to the matter published as mentioned in clause (b) or having regard to what was used in India before the priority date of the applicant' s claim;
  • that the subject of any claim of the complete specification is not an invention within the meaning of this Act, or is not patentable under this Act;
  • that the complete specification does not sufficiently and clearly describe the invention or the method by which it is to be performed;
  • that the applicant has failed to disclose to the Controller the information required by section 8 or has furnished the information which in any material particular was false to his knowledge;
  • that in the case of a convention application, the application was not made within twelve months from the date of the first application for protection for the invention made in a convention country by the applicant or a person from whom he derives title, but on no other ground
Protection
Q. Does Indian Patent give worldwide protection?
A. Patent protection is territorial right and therefore it is effective only within the territory of India. However, filing an application in India enables the applicant to file a corresponding application for same invention in convention countries, within or before expiry of twelve months from the filing date in India. Therefore, separate patents should be obtained in each country where the applicant requires protection of his invention in those countries. There is no patent valid worldwide.
Provisional Specification
Q. Is it necessary to file a provisional specification?
A. Generally, an application filed with provisional specification is known as provisional application which is useful in establishing a priority date for your invention. Moreover, filing of a provisional application is useful as it gives sufficient time to the applicant to assess and evaluate the market potential of his invention before filing complete specification. However, it is not necessary to file an application with provisional specification and one can file application directly with complete specification
Publishing of Application
Q. When an application for patent is published?
A. Every application for patent is published after 18 months from the date of its filing or priority date whichever is earlier. However, following applications are not published.
  1. Application in which secrecy direction is imposed
  2. Application which has been abandoned u/s 9(1) and
  3. Application which has been withdrawn 3 months prior to 18 months
Registered Patent Agent
Q. Is a registered patent agent compulsory for filing an application for patent?
A. It is not compulsory under the patent law to engage a registered patent agent for filing an application for patent. The applicant is free to file an application by himself or through the patent agent. However, an applicant who is not a resident of India is required to file either through the registered patent agent or must give an address for service in India.
Stages in Grant of Patent
Q. What are the various stages involved in the grant of patent?
A. After filing the application for the grant of patent, a request for examination is required to be made by the applicant or by third party and thereafter it is taken up for examination by the Patent office. Usually, the First Examination Report is issued and the applicant is given an opportunity to correct the deficiencies in order to meet the objections raised in the said report.

The applicant must comply with the requirements within the prescribed time otherwise his application would be treated as deemed to have been abandoned. When all the requirements are met, the patent is granted and notified in the Patent office Journal. However before the grant of patent and after the publication of application, any person can make a representation for pre-grant opposition.
Term of Patent
Q. What is the term of patent?
A. Term of every patent in India is 20 years from the date of filing of patent application, whether it is filed with provisional or complete specification. However, in case of applications filed under PCT the term of 20 years begins from International filing date.
Unpatentable Inventions
Q. What are the unpatentable inventions under the Indian Patent Law?
A. Sections 3 & 4 of the Patents Act, 1970 state the non-patentable inventions. Section 3 reads as follows:

The following are not inventions within the meaning of this Act –
  1. an invention which is frivolous or which claims anything obviously contrary to well established natural laws;
  2. an invention the primary or intended use or commercial exploitation of which could be contrary public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;
  3. the mere discovery of a scientific principle or the formulation of an abstract theory [or discovery of any living thing or non-living substance occurring in nature] (But the dividing line between invention and discovery is very thin a lot of it will depend on the projection of the invention);
  4. the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant;(Explanation Derivatives of a same substance such as salts, esters, ethers, polymorphs, metabolites, new form particle size and other derivatives of a known substance will be considered as the same substance unless they defer significantly in properties with regards to efficacy)
  5. a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance; (A synergistic admixture is patentable. If the admixture discloses a beneficial new properties not disclosed by the individual ingredients, the same is patentable)
  6. the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;
  7. a method of agriculture or horticulture;(Crop protection chemical and new devices used in agricultural of horticultural operations are patentable)
  8. any process for the medicinal, surgical, curative, prophylactic [diagnostic, therapeutic] or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products;
  9. plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;(New plant varieties can be protected under a different law)
  10. a mathematical or business method or a computer program per se or algorithms;(But if the software is responsible for causing an improved technical effect or improves the efficacy of the existing device, then the technical or the improved device can be patented)
  11. a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;(The same can be protected under the Laws of Copyright)
  12. a mere scheme or rule or method of performing mental act or method of playing game;
  13. a presentation of information;
  14. topography of integrated circuits; (This can be protected under a different law)
  15. an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.](But an improvement to the traditional knowledge complying with the requirement of novelty, utility and non-obviousness can be a subject matter of Patent)

Section 4:
No patent shall be granted in respect of an invention relating to atomic energy falling within sub-section (1) of Section 20 of the Atomic Energy Act, 1962 (33 of 1962)
Who Can Apply
Q. Who can file patent application?
A. A patent application can be filed either by true and first inventor or his assignee, either alone or jointly with any other person. However, legal representative of any deceased person can also make an application for patent.
Advantages
Q. What are the advantages of trademark registration?
A. The registration of a trade mark confers upon the owner the exclusive right to the use of the registered trade mark and indicate so, by using the symbol (R) in relation to the goods or services in respect of which the mark is registered and seek the relief of infringement in appropriate courts in the country. The exclusive right is however subject to any conditions entered on the register such as limitation of area of use etc. Also, where two or more persons have registered identical or nearly similar mark due to special circumstances such exclusive right does not operate against each other.
Application
Q. What is the procedure for Trademark application?
A. a) EXAMINATION STAGE :
Application will be examined by the examiner of trade Marks. Examination report will be communicated to each Applicant or Agent or Attorney by quoting objections, if any, for acceptance of the application.

b) ENQUIRY STAGE :
After receipt of Examination Report, a personal hearing may be requested by the applicant in order to overlook the objections by producing documentary evidences during the hearing .Thereafter order will be passed in the application by the registrar.

c) ADVERTISEMENT STAGE :
If the application is found to be acceptable ,then it will be advertised in the Trade Mark Journal (official Gazette of the Trade Marks Registry ) to invite opposition, if any, from the public within the prescribed period of three months

d) OPPOSITION STAGE: If any).This stage will arise only in cases when an opposition is filed against the registration of a particular trade mark .If there is no opposition, then the mark will be registered.
Assignment
Q. Can the ownership of a Trademark be assigned from one person to another?
A. A Trademark can be licensed by the owner of the Trademark in favour of another person by way of an assignment. Assignment can either in full or in part. If the Trademark is assigned without any goodwill than the Registrar of Trademark insist on advertisement in Newspaper and permit the assignment only after ensuring that the interest of the third party would not be affected by the assignment. All assignments must be registered with the Trade Mark Registry (TMR) by paying the prescribed fees.
Certification Trademarks
Q. What are Certification Trademarks?
A. Certification trade marks guarantee that the goods or services that use the mark have been certified by to have been made of a particular material, method of manufacture, quality, accuracy or origin. This can be owned by individuals or a corporate body. Regulation governing the Certification would have to be logged with the Trade Mark Registry along with the application.
Collective Trademarks
Q. What are Collective trademarks?
A. A collective trade mark can be obtained by an organization which can permit the members to use the mark. The association has to prepare and file a regulation with the Trade Mark Registry setting out the rules specifying standards and criteria for membership. Collective trade mark cannot be owned by individuals or a body corporate. It has to be a registered association or Trust having many members or beneficiaries.
Infringement
Q. What is Trademark infringement?
A. Trademark infringement is a violation of the exclusive rights to use the Trademark conferred by registration of the same upon the proprietor of Trademark. The exclusive rights to use the Trademark is infringed, when a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the Trademark which is already registered by another user.
Is Registration Mandatory
Q. Is Registration of a Trade Mark mandatory?
A. No. Registration of a trade mark is not mandatory, but without registration the owner of a trade mark cannot bring an action for infringement to protect his mark if it is used by others. Suing for infringement of a registered trade mark is much simple than launching a common law action for passing off to protect an unregistered trade mark since the owner of a registered trade mark can base his case simply upon the fact that his mark has been registered.
Opposition
Q. How can the application for registration be opposed?
A. Within a period of three months from the date of advertisement in the Indian Trademark Journal, any party may lodge opposition to the registration of the trade mark. Extensions of this period can be obtained on application to the Registrar.

Various grounds of opposition are available and include conflict with prior registered or common law trade marks. Usually trade marks which do not conform to the requirements for registration may be opposed. Opposition is an important facility, especially in that it affords trade mark owners the opportunity of ensuring that competitors do not register similar trade marks.
Refusal Of Registration
Q. On what grounds can registration of trademarks be refused?
A. Under the Trademarks Act, there are 2 grounds for refusal of registration of trade marks:

(a) Absolute ground for refusal of registration of trade mark: marks that are devoid of any distinctive character which in the trade serve to designate the kind, quality, quantity and geographical origin will not be registered. However, if it can be proved that these marks have acquired a distinctive character prior to application by long continuous and uninterrupted use of the mark; marks will also not be registered if they are likely to deceive public or confusion. If the mark comprises scandalous or obscene matter or if the mark is likely to offend the religious sensibilities of the people the same cannot be registered. In addition, if the mark registration is prohibited under the Emblems and Names (Prevention of Improper Use) Act, it will not be registered. Normally, if the shape of the goods is necessary to obtain a technical result or the shape that adds substantial value to the goods it will not be registered.

(b) Relative ground for refusal of registration of trade mark: when the proposed mark for registration is in conflict with the identity of an earlier registered trade mark in respect of the same or similar goods or services or if it conflicts with the internationally well-known trade mark even if it is not registered in India.
Remedies
Q. What remedies are available for the infringement of registered and unregistered Trademarks?
A. In case of infringement of trademark, the following two remedies are available –

1 Infringement Action:

An action for infringement is a statutory right and it is dependent on the validity of the registration of the trademark. Prior Registration of the trademark is prima facie proof of ownership of the mark. In case of infringement the plaintiff just has to prove that he is the true owner of the Trademark and the defendant is using a mark that is identical or deceptively similar to his registered trademark. The jurisdiction and procedure, in infringement suit, is governed by the Civil Procedure Code. The period of limitation for filing the suit for infringement is three years from the date of infringement. The relief and remedy in infringement proceedings include:-

  • Injunction;
  • Restraining the future use of the mark;
  • Damages or on account of profits;
  • Order for delivery of the infringing labels and marks for destruction;
  • Seizure and confiscation of the infringing goods by the police department;
  • Arrest of the infringer;
  • Fines and penalties.


2 Passing Off:

An action of passing off is a direct subject matter of the law of tort or common law remedy. Passing off is not defined in The Trademarks Act, but it provides the rules of procedure and the remedies available. In the case of unregistered yet well known marks, the owner of the mark can initiate a passing off action in the appropriate Court of law. The cause of action in favour of the plaintiff will arise if the defendant in the course of trade misrepresents to prospective or ultimate customers of goods and services and the goods or services of the defendant is connected to the goods or services of the plaintiff and is calculated to injure the business or goodwill of the plaintiff and which actually causes damages to the business or goodwill of the plaintiff. Actual deception and actual damage has to be proved for any relief. Passing off action can only be initiated in a place where the defendant resides or carries on business or where any part of the cause of action arose.
Renewal
Q. Do we need to renew the term of a trademark once it is registered?
A. A registered trade mark should be renewed for every seven years under the present Act. The period of said seven years will be calculated from the date of filing the application.
Restricted Trademarks
Q. What types of trademarks may not be registered?
A. A Trademark which is identical to another registered trademark or deceptively similar to another registered trademark, in respect of the same goods or description of goods, may not be registered. Also trademark the use of which would be likely to deceive or cause confusion; the use of which would be contrary to any law in force; which comprises or contains scandalous or obscene matter or any matter likely to hurt the religions susceptibilities of any class or section of the citizens of India; may not be registered. Further the words standing for geographical names or a surname or a personal name or any common abbreviation thereof or the name of a sect, cast or tribe in India will not be registered as trademarks. Domain name of there that of trademarks owner will also not be registered for trademark.
Service Mark
Q. What is a service mark?
A. A service mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product.
Trademark
Q. What is meant by ‘Trademark’?
A. A "trade mark" means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours etc. A trademark once applied and registered, exists in perpetuity subject to periodic renewal and use of the mark in respect of the goods or services for which it is registered and used.
Transfer of Trademark
Q. Can a trademark be transferred from one person to another?
A. Yes. A registered mark, or a mark for which an application to register has been filed is assignable. This means that the mark can be sold to another person/entity. An assignment agreement executed, and notarized by both parties is required to be filed with the trade marks registry to effect such a change of ownership in respect of the mark. A trade mark similarly may also be licensed to another following the same procedure as that of assignment of a trade marks.
Well-known Trademark / Associated Trademark
Q. What are "Well-known Trademarks" and "Associated Trademarks"?
A. Well-known trademark in relation to any goods or services, means a mark which has become so to the substantial segment of the public which uses such goods or receives such services that the use of such mark in relation to other goods or services would be likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the first-mentioned goods or services.

Associated Trademarks means trademarks deemed to be, or required to be, registered as associated trademarks under this Act.
Who Can Apply
Q. Who can apply for Trademark?
A. Any person claiming to be the owner can file an application for the registration of the Trademark. The Application can be made by an individual, a partnership firm, a Corporation, any Government Department, a Trust, Company, etc.
Computer Software
Q. Whether computer Software or Computer Programme can be registered?
A. As per Section 2 (o) of the Copyright Act, 1957 “literary work” includes computer programme, tables and compilations, including computer databases. Therefore Computer Software or programme can be registered as a ‘literary work’. However ‘Source Code’ has also to be supplied along with the application for registration of copyright for software products.
Criteria
Q. Copyright protection is awarded based on what criteria?
A. Copyright protection is awarded on fulfillment of following two conditions:

a. Originality - meaning that the work owes it origin to the author. Originality is different from novelty. An author of the work need not be the first to articulate the ideas or create the work.

b. Reduction into tangible form - For a work to be protected, it must be written down, drawn, painted or taped. Mere oral expression of idea will not qualify for copyright protection.
Fair Use
Q. What is fair use?
A. The Copyright law allows using any copyrighted work for few restricted purposes which are considered to be defenses to copyright infringement. Any work used for the limited purposes of research, private study, for any criticism or review, reporting current events in a newspaper; magazine or any periodical does not constitute infringement. This concept of using the copyrighted work for specific purpose is fair use in copyright.
Infringement
Q. What does not amount to infringement of Copyright?
A. Reproduction of any copyrighted work for educational purposes, for news articles or for delivering lectures does not amount to infringement. However, if the reproduction is done for commercial gains, it amounts to infringement.
Mandatory
Q. Is it necessary to register a work to claim Copyright?
A. Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright. However, certificate of registration of copyright serves as prima facie evidence in a court of law with reference to dispute relating to ownership of copyright.
Meaning
Q. What is Copyright?
A. Copyright is a legal right provided by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. Copyright is said to be a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work.
Procedure
Q. What is the procedure for registration of a work under the Copyright Act, 1957?
A. The procedure for registration of Copyright is as follows:
  1. Application for registration is to be made on Form IV ( Including Statement of Particulars and Statement of Further Particulars) as prescribed in the first schedule to the Rules ;
  2.  Separate applications required to be made for registration of each separate work;
  3. all applications should be accompanied by the requisite fee prescribed in the second schedule to the Rules ; and
  4. The applications should be signed by the applicant or the advocate in whose favour a Vakalatnama or Power of Attorney has been executed. Alongwith a copy of the same.
Remedies
Q. What are the remedies in case of an infringement of copyright?
A. The Law provides both civil and criminal remedies in case of infringement of copyright. Copyright infringement is a cognizable offence.

1. CIVIL- A copyright holder may move a Civil Court to grant injunction against such person, claim damages and accounts.
2. CRIMINAL: one can get the infringer imprisoned and the infringing copies seized.  Besides one can get an ex-parte order against the infringer. Further an infringer can be liable for imprisonment for 6 months upto 3 years and fine of Rs.50,000/- upto Rs. 2 lakhs.
Term
Q. Term of copyright?
A.
  • In case of ‘literary work’ Copyright lasts for the life span of the author and for sixty years after the author’s death. The same principle applies to joint authorship (two or more), with the copyright lasting for the life span of the longest surviving author and sixty years after the longest surviving authors death.
  • In the case of anonymous and pseudonymous work the copyright subsist for sixty years from the date of publication.
  • Copyright in photographs subsists for sixty years from the next calendar year of publication.
  • Copyright for cinematographic films subsist for sixty years from the next calendar year of publication.
  • Copyright for sound recording subsist for sixty years from the next calendar year of publication.
Transfer
Q. Can copyright be transferred?
A. Copyright can be ‘assigned’ (sold or given away) by the execution of a written document signed by the copyright owner. It is also possible to grant a copyright license, for a limited period of time, for specified forms of reproduction and merchandising, and in limited countries throughout the world. It can be for a specified flat fee or royalty, or both.
Unpublished Works
Q. Whether unpublished works are registered?
A. Both published and unpublished works can be registered. Copyright in works published before 21st January, 1958, i.e., before the Copyright Act, 1957 came in force, can also be registered, provided the works still enjoy copyright. When a work has been registered as unpublished and subsequently it is published, the applicant may apply for changes in particulars entered in the Register of Copyright in Form V with prescribed fee.
Websites
Q. How can I get copyright registration for my Web-site?
A. A web-site contains several works such as literary works, artistic works, sound recordings, video clips, cinematograph films and broadcastings and computer software. A separate application has to be filed for registration of each of these works.
Cancellation
Q. Can the Registration of a Design be cancelled?
A. The registration of a design may be cancelled at any time after the registration of design on a petition for cancellation in form 8 with a fee of Rs. 1,500/-to the Controller of Designs on the following grounds:
  • That the design has been previously registered in India or
  • That it has been published in India or elsewhere prior to date of registration or
  • The design is not new or original or
  • Design is not registrable or
  • It is not a design under Clause (d) of Section 2.
Effect of Registration
Q. What is the effect of registration of design?
A. The registration of a design confers upon the registered proprietor ‘Copyright’ in the design for the period of registration. ‘Copyright’ means the exclusive right to apply a design to the article belonging to the class in which it is registered.
Marking
Q. Is marking of an article compulsory in the cases of article to which a registered design has been applied?
A. It is always beneficial to the registered proprietors to mark the article so as to indicate the number of the registered design except in the case of Textile designs. Otherwise, the registered proprietor would not be entitled to claim damages from any infringer unless the registered proprietor establishes that the registered proprietor took all proper steps to ensure the marking of the article, or unless the registered proprietor show that the infringement took place after the person guilty thereof knew or had received notice of the existence of the copyright in the design.
Meaning
Q. What is meant by 'Design'?
A. As laid down in the Designs Act a ‘Design’ means only the features of shape, configuration, pattern or ornament or composition of lines or colour or combination thereof applied to any article whether two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye, but does not include any mode or principle or construction or any thing which is in substance a mere mechanical device, and does not include any trade mark and property mark or artistic works.
Objective
Q. What is the object of registration of Designs?
A. The primary object of the Designs Act is to provide protection for new and original designs created for application to particular articles to be manufactured by Industrial Process or means. The important purpose of design Registration is to see that the artisan, creator, originator of a design is not deprived of his bonafide reward by others applying it to their goods.
Penalty
Q. What is the penalty for the piracy of a registered Design?
A. If anyone contravenes the copyright in a design he is liable for every offence to pay a sum not exceeding Rs. 25,000/- to the registered proprietor subject to a maximum of Rs. 50,000/- recoverable as contract debt in respect of any one design. The registered proprietor may bring a suit for the recovery of the damages for any such contravention and for injunction against repetition of the same. The suit for infringement, recovery of damage etc should not be filed in any court below the court of District Judge.
Piracy
Q. What is piracy of a Design?
A. Piracy of a design means the application of a design or its imitation to any article belonging to class of articles in which the design has been registered for the purpose of sale or importation of such articles without the written consent of the registered proprietor. Publishing such articles or exposing terms for sale with knowledge of the unauthorized application of the design to them also involves piracy of the design.
Requirements
Q. What are the essential requirements for the registration of 'design' under the Designs Act, 2000?
A. As provided in the Act, the following are a few essentials for the registration of a Design under the Design Act, 2000 -

(1) The design should be new or original, not previously published or used in any country before the date of application for registration. The novelty may reside in the application of a known shape or pattern to new subject matter.
(2) The design should relate to features of shape, configuration, pattern or ornamentation applied or applicable to an article. Thus, designs of industrial plans, layouts and installations are not registrable under the Act.
(3) The design should be applied or applicable to any article by any industrial process.
(4) The features of the design in the finished article should appeal to and are judged solely by the eye. This implies that the design must appear and should be visible on the finished article, for which it is meant. Thus, any design in the inside arrangement of a box, money purse or almirah may not be considered for showing such articles in the open state, as those articles are generally put in the market in the closed state.
(5) Any mode or principle of construction or operation or any thing which is in substance a mere mechanical device, would not be registrable design.
(6) The design should not include any Trade Mark or property mark or artistic works as define under the Copyright Act, 1957.
Term
Q. What is the term of copyright over a design? Can it be renewed?
A. The term of the registration of a design is initially ten years from the date of registration, but in cases where claim to priority has been allowed the duration is ten years from the priority date.

This initial period of registration may be extended by further period of 5 years on an application made in Form-3 accompanied by a fee of Rs. 2,000/- to the Controller before the expiry of the said initial period of Copyright.

The proprietor of a design may make application for such extension even as soon as the design is registered.
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Fake journalist arrested ...
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300 Delhi lower-court jud...
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Take down dangerous hoard...
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Supreme Court E-Committee...
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Systemic failure to blame...
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Rs 1L interim relief to t...
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One rape every 30 minutes...
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Coalgate: CVC advises CBI...
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Domestic Violence Act: Ma...
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Deal with Campa Cola as p...
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Rs 9 lakh to kin of 26-yr...
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