Agreements in Restraint of Marriage (S.26)Agreements in restraint of marriage or those, which interfere with the freedom of choice of an individual in matters relating to marriage, are void. As an effect of the agreement, if a person is bound to not marry another individual or it interferes with the person’s freedom of choice then it is void. Example: The case of Lowe v. Peers set a precedent in the law relating to restraint of marriage. In this case, the defendant contended that if he marries any other person except the plaintiff, he would give her 1000 pounds within three months of his marriage. It was held that such an agreement is void.Agreement in Restraint of Trade (S.27) Any agreement that debars any individual from starting or continuing his legitimate trade, business or profession, in return for some consideration irrespective of whether the restraint is partial or general, is void. Even the Constitution of India grants every individual, the fundamental right to carry on any business, trade or profession.Example: Madub Chunder V Rajcoomar: In this case, the Defendant faced competition from Plaintiff due to which he incurred a heavy loss. Consequently, both parties entered into an agreement. The terms of the contract state that if the Plaintiff closes his business then the Defendant would pay him the money that MadubChunder advanced to his workers. Later on, Rajcoomarrefused to pay the money as promised in the contract. Both the parties of the present case were involved in businesses established in Calcutta. As a result, the Plaintiff filed a lawsuit to claim the amount from the Defendant. It was held that such an agreement would be void. A non-compete clause through which an employee signs up to not compete with the firm/employer directly would not amount to ‘restraint of trade’. Exceptions to Restraint of Trade: 1.) Sale of Goodwill: The only exception mentioned in Section 27 of the Contract Act is related to sale of goodwill. Goodwill is an intangible asset of a firm; it is the reputation it has earned over the years among consumers, such that these consumers would continue to consume products or services produced by such a firm. Like other assets, a firm can sell its goodwill as it holds some value. One who sells the goodwill of a business may agree with the buyer of that goodwill to refrain from carrying on a similar business within specified local limits. This would not be an agreement in restraint of trade but it is the right exercised by the buyer of the goodwill. Example: In Chandra v.Parasullah, the plaintiff was the owner of a fleet of buses that used to ply between Pune and Mahabaleshwar. The defendant also had a similar business in the same area. To avoid competition, the plaintiff bought the defendant’s business along with the goodwill, and by contract made him agree not to open a similar business in the area for 3 years. The defendant did not comply and started his business. It was held by the court that the agreement was valid, as it fell within the exception to S.27.2.) Another exception to the rule of limitation on agreements in restraint of trade is provided under the Partnership Act, 1932. The Act lays down three exceptions. These are:a. An agreement with a partner of the firm to not carry out his own business so long as he/she is a partner in the said firm.b. An agreement between partners to not engage in a similar business as that of the said firm within specified territorial and time limits (period of restraint).c. In anticipation of dissolving the firm, the partners may come to an agreement in restraint of carrying out a similar business within specified territorial and time limits so long as this restraint is reasonable. Example: Firm Daulat Ram & Firm Dharm Chand, In this case, the two similar business owners, in a partnership, came to an agreement that only one of their factories would work at a given time and the proceeds will be shared between them. This restraint was held to be valid.Agreement in Restraint ofLegal Proceedings (S.28)Any agreement between the two parties that restricts either or both of the parties (whoever is aggrieved) from seeking remedy from a court of law (or limits the time period within which such a right may be exercised) in case of non-compliance or a breach of contract is a void agreement. It further says, any agreement that extinguishes the rights of any party or discharges either of the parties from liability is a void agreement.There are two exceptions to Section 28, as mentioned in the Act. Agreements in restraint of legal proceedings are valid, if:1. A future dispute or a past dispute is referred to arbitration. That is if there is an arbitration clause in the said agreement.2. Agreements stating the limit of time as per the Limitation Act, 1963 For instance, as per the Limitation Act, 1963, a suit for breach of contract may be brought within the period of three years from the date of the breach.Example: Food Corporation India V New India Assurance Co. In this case, the Supreme Court held that the terms of an agreement should not be so construed as to bar the other party from seeking the remedy of the suit.
Introduction to the Consumer Protection Act 2019
In twentieth century everyone followed and accepted a thought that is “Consumer is King”.In the case of Donoghue Vs Stevenson where the manufacturer was held liable by the court for the presence of snail in the ginger beer bottle. This was the landmark judgement after which the need for legislation was realised .The Consumer protection Act is based on the doctrine of Caveat Emptor which means that it is the responsibility of the buyer to identify the defects in the goods .Need for the Act-Aim of the Act –-To provide protection of the interest of the consumers -Attempts to remove the helplessness of the consumer that they face against the powerful company .-To protect the economic interest of the consumers -The act has to be construed in favour of the consumer to achieve the purpose of the enactment as it is social benefit oriented legislation.-To make provisions for the settlement of the dispute arising -Objectives of the Act i. The act tries to promote and protect all the six rights of the consumers that includes right to safety , right to information , right to choose , right to be heard, right to redressal and right to consumer education .ii. To provide speedy disposal to the cases by providing quasi –judicial machinery for the redressal of consumer disputes .iii. To provide the redressal services at feasible cost .iv. Creating framework for consumers to seek redressal.Important Definition- 1. Consumer –-As per section 2(7) of the Consumer Protection Act is a person who purchases any goods or services or hires or avails of any service for a consideration for his own use but doesn’tinclude any person who buys any good and avail any service for resale or commercial consumer .-The explanation to this section talked about the term “commercial purpose” which does not include use of goods by person exclusively for the purpose of earning livelihood by means of self employment. It also mentions that term “buy any goods” and “hires or avails any services “includes both offline and online transactions .2. Complaint –According to section 2(6) of the Consumer Protection Act is a person who makes a complaint under this act that -an unfair conduct or unfair trade practise or restrictive trade practice has been used by a trader or service provider.-the goods or the services have defects or deficiency-the trader or service provider charged the goods or services with a price in excess of a price as mentioned by law under any act , displayed on goods or package , displayed on the price list exhibited by him or as agreed between the parties.-the selling of such goods which are hazardous to life and safety to the public in contravention of law or if the trader knows that goods are unsafe – when there is claim for product liability against manufacturer. 3. Deficiency in services –-According to the definition under Section. 2(11) of Consumer Protection Act 2019 (“the Act”), any sort of imperfection, or defect in the feature, quality, amount, worth, authenticity, its capacity or potential, and standard which is obligatory to be maintained and regulated as per the laws and statutes in function or any agreement/contract claimed by the seller, with respect to the products and goods, is known as deficiency.Willful and deliberate concealment of important information, omission or negligence of acts by seller which may lead to injury or loss to the consumer(s), also comes under the ambit of deficiency of service.Any act(s), which a prudent seller is supposed to do or is supposed to omit, but deliberately does the contrast, such actions amount to ‘deficiency of service’.
• Consumer protection councils-Under section 3 of the Consumer Protection Act it has mentioned to establish the central consumer protection council .1. Constitution – Minister in charge of the department of consumer affairs in the central government shall be the chairperson.Such member of other official or non official members as required-At least one meeting to be held every year .2. Objects of central council –To render advice on promotion and protection of the consumers rights under this act .State Consumer protection Council –-Under section 6 mandates the state government to establish state protection consumer council.1. -Constitution –Minster in charge of consumer affairs in the State Government who shall be the chairperson, such no of official or non-official members as required , such no of other official ,non official members not exceeding ten as may be nominated by the government.2. Objects – to render advice on promotion and protection of consumer rights under this actDistrict Council–Under section 8 mandates the state government to establish for every district the district consumer protection council -It is an advisory council 1. Constitution – Collector of the district (chairperson), such no of officials and non –official as may be prescribed .2. Objects –To render advice on promotion and protection of consumer rights under this Act
Manjit Singh Dhaliwal and Ors v. JVPD Properties Pvt. Ltd
Brief facts:- The case arises out of 15 complainants assailing a common order recorded by the Ld. Member & Adjudicating Officer, MahaRERA, which was rejected on the ground of lack of Agreement for Sale with regards to residential flats to be built by the respondent(promoter). All 15 of the allottees, based on identical Letters of Allotment, had paid 50% of the payment amount to the promoter. No work had been started in relation to the project, and as per email communications made by the promoter to some of the allottees, the promoter had no wish to continue the project. This gave rise to the controversy at hand. Issues:- The main issues within the case were:
1. Whether the lack of an Agreement for Sale was enough to fail a complaint.
2. Whether the Letters of Allotment could be treated as Agreements for Sale.
Judgment:-The Court decided that the lack of Agreement for Sale could not fail the complaints, and hence the 15 appeals of the allottees were allowed. The common order dated 29th December, 2017 was set aside. The matter was further remanded to the Ld. Adjudicating Officer, MahaRERA to be decided afresh on merits. The Respondent was ordered to pay cost of Rs. 15000/- to each of the allottee/appellant within 30 days from the date of judgment. The parties to the appeal/to the original complaint were directed to appear before the Ld. Member and Adjudicating Officer on 23rd April, 2018.
Ratio The Court held that mere lack of an Agreement for Sale will not be enough to fail the complaint. Opining on Section 15(1)(a) of RERA, the Court stated that the term “Agreement for Sale” mentioned therein could not be the subject of strict uses of terminology, on account of the phrase “or as the case may be” used within the same. This phrase itself indicates the presence of more than one alternative scenario. The present case thus serves as an appropriate example for the same. Further, Section 2(c) of RERA states that an Agreement for Sale is one between the promoter and allottee. The present Letters of Allotment stipulate a description of the property to be purchased by individual allottees, a description of the payment schedule and the total cost, the necessary requisition of permissions, obligation to complete the projects, and getting clarity to the title. Pairing the same with Section 2(d) of RERA which contemplates the definition of an allottee, the Court observed that an agreement is basically the meeting of minds, even sans the legal obligations. The Letters of Allotment are incidentally couched in such a fashion so as to incorporate all requisite terms of a valid agreement, i.e. the offer, acceptance, consideration, time schedule, clarity of title, etc.Therefore, in the present case, nothing was left to be negotiated and settled for future. Terms were agreed and Letters of Allotment were read and understood. It was a certain and a concluded bargain. Hence, the Court held that a concluded contract had come into existence. Thus, looking into Section 18(1)(a) of RERA the Court came to the conclusion that based on its discussion, the case fell into the jurisdiction of the Adjudicating Officer, MahaRERA.
Counter Affidavit in the WhatsApp’s Private Policy 2021 case
The government claimed that WhatsApp has also violated Information Technology Rules, 2011 and hence they shall be restrained from implementing their new policy till the time the challenge to the validity of the policy is decided.
Centre to Release 14Cr for Manufacture of Sputnik V- Delhi HC
Though, India was expected to play a pivotal role in global efforts to immunize against COVID-19, India failed to do so due to its poor planning of vaccination dose circulation within its own country. Now, where, almost every person is facing the problem of vaccination due to the shortage of supply in regards to demand, will India be able to gain back confidence of Indian citizen to immune themselves against this deadly virus?The Serum Institute of India, and Bharat Biotech, are the two major and prime vaccine producers in India, producing AstraZeneca vaccine and COVAXIN, respectively. We noticed with surge in COVID cases and vaccine drive announced by India Government for the adult group of population from May 1, there arose an acute problem of vaccine shortage as not enough vaccines were produced by India by this time. So far, Indiareceived just 231,322,417 shots, including 10,000,000 as a part of COVAX, a worldwide initiative aimed at providing equitable access to vaccines. Just 4,38,70,568 people have got both doses of their vaccines, while 16,18,50,092 have just received the first shot.While, Delhi High Court, directed Central Government to release an amount of 14 Crores along with the interest of 12% to Panacea Biotech for manufacturing Sputnik V subject to the condition of receiving permission from respective authorities to manufacture it in India; a division bench comprising of Justice Manmohan and Justice Najmi Waziri ordered thus: “The release is also subject to the undertaking given by Panacea Biotec that 20 per cent of the sale proceeds will be deposited by it with High Court Registry”.The court said in the order that its prima facie finds no justification for the Central Government to insist on bridge trials for domestic manufacturing of Sputnik-V by Panacea Biotechwhen same is not taking place when it is imported from outsideto India. Court advised Centre to consider Panacea Biotech’s application for emergency use and authorization. In its previous course of hearing, the Court had pulled up the Centre for not utilizing the vaccine manufacturing capacity that India has. In case of public emergency, the bench pointed out thatspontaneous manufacturing of vaccines is the need of the hour which is not happening due to a “fear psychosis” of various vigilance enquiry, audits and other police investigation. Court,also questioned the Centre as to why a test was required for a vaccine which is being manufactured in India when there are exemptions from bridging trials provided for the ones being imported from outside India.
SC ordered protection to couple in live-in relationship
Live in relationship is a kind of relation where both partners are sharing their households and responsibilities towards each another without being married as prescribed under Marriage Act. There is no particular codified law for this type of relationship which defines “Live in relationship”. It includes continuous relation between the parties and does not involve any responsibilities or obligations towards each other. As it is not prescribed, the partners can withdraw this with mutual understanding or consent without involvement of court if both parties mutually agree.As there is no proper legal definition of live-in relationship and thus the legal status of such type of relationships is also not prescribed by law. However, Indian law does not provide any rights or obligations on the parties in live relationship. The status of the children born during such relationship is also not clear and therefore, various judgments has been passed by the court for this concept which court can follow as precedent and take further decision for any kind of amendment in this regard. The court has liberally stated that if any man and woman cohabiting for a long term will be assumed as legally married under the law unless proved contrary.In the case of Badri Prasad vs. Dy. Director of Consolidation, 1978 it was held by Justice Krishna Iyer that he presumes in favour of wedlock where a couple has lived together for a long time period they will be recognized as husband and wife by the society. Although this presumption is rebuttable, a heavy burden lies in him who seeks to deprive the relationship of its origin. Law is in favour of legitimacy and frowns upon bastardy. In this case the court gives validity to a couple living together for around 50 years. The Supreme Court of India said for the first time, that live in relationship is acceptable and recognized it as a valid marriage.There is a recent case GurwinderSingh v. The State Of Punjab: in which the Petitioner Gulza Kumari and GurwinderSingh asked for protection to the Punjab and Haryana High Court, as their lives are in threat by Gulza’s parents. Thepetitioner plea to the High Court.Dismissing the plea, the court said, “Asa matter of fact, the petitioners in the garb of filing the present petition are seeking seal of approval on their live-in-relationship, which is morally and socially not acceptable and no protection order in the petition can be passed.”But The Supreme Court of India orders for the protection to the couple in live-in-relationship after the High Court denied relief, as it is a concern of “Life and Liberty”.On 4th June 2021, a Division Bench comprising Justices NavinSinha and Justice Ajay Rastogi directed that this issue is affecting one’s life and liberty; police should act efficiently in the matter of threat faced by the couple.“Needless to state that since it concerns life and liberty, the Superintendent of Police is required to act expeditiously in accordance with law, including the grant of any protection to the petitioners in view of the apprehensions/ threats, uninfluenced by the observations of the High Court,” the Court ordered.As the above matter complies with constitutional principles so it is the duty of police to take appropriate action to give protection to the couple.
Curcus curiae est lex curiae
“Curcuscuriaeestlex curiae” is a Latin maxim, which renders the rules of court or the customs of the court, is utmost law of the court. In other words, the practice of the court is the law of the court.There is a debate that the application of rules to cases cannot be completely determined by rules without initiating an infinite regress. In this view, the
habits of courts are part of the law as are the decisions of courts. This applies to courts of equity as well as of common law, even to the High court of Parliament. Although the practice of one court does not govern that of any other, the practice of each court in dealing with its process is unlimited. Such a process will not interfere with positive statutory enactment and a due course of law. However, the court has power over its process, to regulate the manner of execution, that can give order to be done, which should be consistent with the existing law. Otherwise, the process would be abused. The course of the procedure of a court regarding irregularities, nullities, amendments, and other informal proceedings are included under this rule. There are many decisions of the several courts and judges upon the varied and abstruse questions which arise in the application of a law, constantly brought before them, decisions of which are, in fact, law. For example, in the Sri Lankan case ofBoyagodav.Mendis(30 NLR 321), it was settled that where an enactment concerning procedure has received a certain interpretation- which has been recognized by the courts for a very long period of years, the practice-based upon such interpretation should be followed.
By some Acts of parliament, the court has the power to make rules of practice, which become the law of the court. The propriety of such delegated authority may be open to question when it goes beyond mere practice or permitting the changes of positive law. This delegated authority even applied to Parliament, comes within the rule, “Delegatusnonpotestdelegare.” Similarly, the procedure adopted by international actors and institutions form the course of international law. The procedure and course of international law are to be understood jurisprudentially under this maxim rule. The international institution and the court set the tone of international law, in turn forming a part of its practice, ultimately forming a part of international law, such as customary law.
Filing common charge-sheet in multiple crimes is impermissible
Charge sheet is derived under Criminal law. It is a precise formulation of allegation against the accused. It is the first notice to the prisoner informing him about the allegation. It is made in a specific format. The main object is to convey the accused about the allegation brought against him. Under Code of Criminal Procedure, the Magistrate frames the charges. In case an investigation made by the police, the police-in-charge shall forward the report in the form prescribed by the Magistrate empowered to take cognizance of the offence under Section 173. After consideration of the document, if the Magistrate satisfies that the charges are groundless then he can discharge the accused person.Section 173 of the Code of criminal procedure provides for an investigation to be completed without unnecessary delay and also makes it obligatory on the officer-in-charge of the police station to send a report to the Magistrate concerned, containing the various details. The Magistrate is not bound to accept the opinion of the Police. In case, the police submits a report stating therein that no case is made out against the accused for sending him for trial, the Magistrate, agreeing with the report, may accept the final report and close the proceedings, but the Magistrate may also take a view that the opinion formed by the police is not based on full and complete and complete investigation and in such a situation, the Magistrate can order for further investigation. But once the closure report is not accepted by the Magistrate and the matter has been ordered to be re-investigated, then for the second time the Magistrate cannot compel the police to take a particular view in the matter and submit the challan in the case. If the Magistrate does not agree with the opinion formed by the police and still suspects that an offence has been committed, he is entitled notwithstanding the opinion of the police, to take cognizance under Section 190(1)(c) of the Code, but he cannot direct the police to re-investigate the matter for the third time.Essentials of a valid charge sheet:1. There should be a specific name of the offence with relevant details.2. It should be written in the language of the court.3. The relevant Act or law wit section should be mentioned.4. All the legal conditions must be fulfilled.5. The word should be clear and specific. There should not be any kind of vagueness or confusing matter.In the recent case State of Karnataka v. Greenbuds Agro Form Limited Company:When the nature of the offence is similar and committed by the same accused within twelve months can be tried together by framing a common charge according to Section 219 of the Code of Criminal Procedure. but it is impermissible to file a common charge-sheet in multiple crime or complaints. A single bench consisting of Justice K Natarajan held:“The State-C.I.D. Police have no authority to file a common charge-sheet in different complaints. However, the investigating Officer has to file a separate charge sheet against each crime registered by the police on individual complaint. Thereafter, the Special court shall take cognizance of the offences both punishable under the IPC and the Special Act by following the Code of Criminal Procedure and dispose the matter in accordance with law.”
Ramki vs The State of Tamil Nadu
Judgement Date– 29.04.2014
Division Bench– The Honourable Mr. Justice V. Dhanapalan& the Honourable Mr Justice G. Chockalingam
Grounds of Case– Sections 4(1) (aaa), 4(1-A), 4(1)(H) of Tamil Nadu Prevention Act r/w 7, 13 & 14 of RS Rules, 2000 offence regarding Bootleggers, Goondas, Immoral Traffic Offenders, Forest Offenders, Sand Offenders, Drug Offenders, Slum Grabbers and Video Pirates Act (14 of 1982), Section 3 and 420, 468, 471, 473, 475 Indian Penal Code, i.e., offences related to Cheating, Forgery, and counterfeits.
Fact-The writ petition filed under Article 226 of the Indian Constitution, which provides power to the High Court for issuance of the writ; the petition prayed for the issue of Habeas Corpus (to present the body against illegal detention). The petition argued on various grounds to set aside the order of detention. The court’s primary focus was derived on illegible document of the screen record of vehicle provided to Dentu (the petitioner), which deprived Dentu to comply with the orders of the court. It has appeared that the respondent (the union) consists of the documents that the appellant requested to transfer. The copies which were supplied were not readable. Meanwhile, they weren’t furnished with the vernacular translated version of the said report. The petitioner also referred to the case of Manjit Singh Grewal @ Gogi vs Union of India and others reported in 1990 (Supp) SCC 59 and prayed that the said act of detaining authority is against the judgement of the Supreme court in the above-mentioned case reference.
Judgement-The court judgement was in favour of the petitioner. By quashing down the detention of the petitioner, the court referred few statements those are-1. It is obligatory to the detaining authority to provide the translated version of the report in the language known by the accused.2. The facts show that the protection provided under the constitution have not been followed.3. Hence, the court quashed the detention and allowed the writ of habeas corpus.4. The petitioner is set at liberty unless custardy is required.
DEBT RECOVERY TRIBUNALS
Debt Recovery Tribunals have been constituted under the provisions of DRT Act. It facilitates the speedy debt recovery including banks and other financial institutions with their customers. It was set up after the passing of Recovery of debts due to Banks and Financial Institutions Act, 1993. The main objective of DRT is to recover the funds from borrowers which are payable to banks and other financial institutions. Jurisdiction of Debt Recovery Tribunals:
• Apart from Supreme Court and High Court the Act bars all other courts for adjudicating the matters related to debt recovery.
• Within the local limits the bank may make an application to the Tribunals of whose jurisdiction the defendant resides or carries on the business.
• From Banks and Financial Institutions the DRT’s can entertain their application for the recovery of debt which are due on them.In the recent case, Kerela Fashion Jewellery v. Union of India:
The Kerala High Court has ruled that the presiding officer of a DRT situated outside the state cannot be given the charge of a Debt Recovery Tribunals.The court held that the central cannot rely the charge of Debt Recovery Tribunal to any other DRT outside the state. The only course which is open to it is to authorize a presiding officer of any other Tribunal within the State to discharge the function of the DRT.The Bench, while reverse the order by single-judge, it was observed that single-judge had failed to note that the purpose of the amendment to Section 4(2) of RDB Act, 1993 is toprovidesafeguard the interest of the litigants, so that they would be entitled to access justice and get their case adjudicated at the same place they reside and where the cause of action has arisen.”Going by the provisions of the Amended Act, 1993 and consequent to the substitution of sub-section (2) of Section 4, it is clear that when there is a vacancy, the Central Government is vested with the powers only toauthorizea Presiding Officer of any other Tribunal constituted by the Central Government in the State under any other law for the time being in force to dischargethe functions of the Presiding Officer of a Debt Recovery Tribunal under the Act, 1993,” the Court said.By quashing the notification, the bench observed that the single bench was not correct because, if and when the office of the tribunal under Recovery of Debts and Bankruptcy Act 1993 falls vacant. The course open to the Centre is to only authorize the presiding officer of any other tribunal constituted under any other law within the jurisdictional state, to discharge the functions of the presiding officer, which will be more beneficial and accessible to the litigant public.
A Division Bench of Chief Justice SManikumar and Justice Shaji P Chaly, quashed the notification issued by the Centre which had entrusted the charge of the Debt Recovery Tribunal – 2, Ernakulam to the presiding officer of DRT-2 Bangalore after the post of presiding officer at DRT-2 Ernakulam fell vacant.“If and when the office of the Tribunal under the (Recovery of Debts and Bankruptcy) Actfalls vacant, the course open to the Central Government is only toauthorizethe Presiding Officer of any other Tribunal constituted under any other law within the jurisdictional State, to discharge the functions of the Presiding Officer of a DRT, which would be more beneficial and accessible to the litigant public,” the High Court ruled.
Therefore, the Division Bench set aside the order by single-judge and left it open to the Central government to issue a fresh notification in accordance with law according to the provisions of the Recovery of Debts and Bankruptcy Act, 1993, at the earliest.The post of presiding officer of DRT-2, Ernakulam continues to be vacant as of June 2021.