Section 15 of the Indian Contract Act, 1872 defines Coercion. ‘Coercion’ is the committing or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person to enter into an agreement.
Explanation- It is immaterial whether the Indian Penal Code (45 of 1860) is or is not in force in the place where the coercion is employed.
Illustrations-
B, on board an English ship on the high seas, causes A to enter into an agreement by an act amounting to criminal intimidation under the Indian Penal Code (45 of 1860).
B later sues A for breach of contract at Calcutta.
B has committed coercion, although his act is not an offence by the law of England, and although section 506 of the Indian Penal Code (45 of 1860) was not in force at the time when or place where the act was done.
Detail information on The Indian Contract Act, 1872- Coercion-defined
Indian Evidence Act,1872- Admissions- Meaning, definition & Evidentiary value
Indian Evidence Act,1872- Admissions
ADMISSIONS- (Definition & Meaning)-
Section 17 of the Indian Evidence Act defines Admissions, according to which an admission means a statement (oral or documentary or contained in electronic from) which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the person and under the circumstances mentioned under sections 18 to 23 of the Indian Evidence Act.
It is important for an admission to be clear, precise and not vague or ambiguous. An admission is the best evidence that an opposite party can rely upon, though not conclusive, it is nevertheless critical on the point unless proved false or is validly allowed to be withdrawn.
EVIDENTIARY VALUE OF ADMISSION-
Section 21 of the Indian Evidence Act as a general rule, lays down that, admissions are relevant, and may be proved against the person who makes them or his representative in interest, and if duly proved, though not conclusive, are sufficient evidence of the facts submitted.
An admission is not conclusive unless it amounts to estoppal. The person against whom an admission is proved is at a liberty to show that it was mistaken or untrue.
When an admission is duly proved, and the person against whom it is proved does not satisfy the Court that it was mistaken or untrue, the Court may decide in accordance with such admission. A false admission does not bind that person making such admission.
What is a Contract? How is it Formed? Its essential elements
What is a Contract? How is it Formed? Its essential elements
What is a Contract? (Definition)
The term Contract has been defined under Section 2 (h) of the Indian Contract Act ,1872. It defines a Contract as an Agreement enforceable by law.
An agreement cannot turn into a contract unless it can be enforceable by Law. So, in order to be enforceable, a contract must contain all the essential elements of a valid contract as defined in Section 10 of teh Indian Contract Act 1872.
Section 10- As per section 10 of the Act, “All agreements are contracts, if they are made by parties out of their-
Free Consent
Parties who are competent to Contract
For a lawful consideration
With a lawful object
And are not expressly declared by the Act to be void.
Essential Elements Of a Contract-
The essential elements of a contract as defined under section 10 of the Indian Contract Act 1872 are-
Agreement (Offer & Acceptance)
Legal purpose
Lawful Consideration
Capacity to contract
Consent to contract
Lawful object
Certainity
Possibility of performance
Not expressly declared void
Legal formalities such as Writing, Registration..
What is a Contract? How is it Formed? Its essential elements
A Writ is a formal written order issued by a government entity and this government entity is mostly the Court in the name of the sovereign power. A warrant is also a type of writ. Article 32 of the Constitution of India empowers the Supreme Court to issue orders and writs to safeguard the fundamental rights guaranteed under part III of the Constitution of India.
The High Court is also empowered to issue writs in order to safeguard the fundamental rights under part III of the Constitution.
Types of Writs-
There are five kinds of writs namely- Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo Warranto. They are explained below-
A) Habeas Corpus-
The Writ of habeas corpus is issued for an illegal detention of a person. It is an order to produce before the Court the person who has been detained and the Court examines such person and if the detention is found illegal, the Court sets free such person hence protects the fundamental right to liberty of the person which was infringed by the illegal detention.
Petition for Habeas Corpus-
According to the general rule, a Petition can only be filed by that person who’s rights have been infringed but under Habeas Corpus, another person on behalf of the aggrieved can also file the Petition which is an exception to the rule.
B) Mandamus-
Mandamus means “we command” or “we order”. This writ is passed by the High Court or the Supreme Court to a public authority or a lower court to perform a public or statutory duty. The Supreme Court passes such writ in a situation when a duty is to be performed by the public authority, corporation or a lower Court and such duty is not performed by them.
C) Certiorari-
The writ of Certiorari is issued by the High Court or the Supreme Court to quash an order passed by the Court inferior to the High Court and the Supreme Court.
D) Prohibition-
The Writ of Prohibition is passed by the Supreme Court or the High Court to a lower Courts in order to prohibit them to do an act which is contrary to the principle of Natural Justice and beyond their authority to exercise. Anything exercised beyond the jurisdiction by the lower courts can be stopped by passing the writ of prohibition.
E) Quo Warranto-
This writ is issued by the Supreme Court or the High Court to stop a person or restrain him from holding the office which he has no authority to hold. Before passing such writ the person is entitled to give an explanation to the Court that by what authority he hold such office. This writ is applicable only to public offices.
Plea bargaining is a concept widely recognized in the United States of America and inserted by the Code of Criminal Procedure(Amendment) Act, 2005. Sections 265A-265L deals with Plea bargaining under the Code.
Plea bargaining is a concept of negotiation on behalf of the accused by accepting his guilt in the Court so that he may be awarded a lighter punishment for the offense committed by him. It is a kind of a deal between the accused and the prosecution by which the accused agrees to plead guilty to a charge which is less serious in nature without going through the long procedure of trail in the Court. Plea bargaining is therefore the best concept for the early disposal of trails.
It originated in America and even today 90% of the criminal cases in America are disposed of by Plea bargaining. As a well recognized fact that the Litigation process is slow and very expensive, the legislature thought of adopting Alternative dispute resolution methods for the quick and cheap disposal of cases, Plea bargaining is one amongst them which proves to be useful for the victim as well as the accused and also the Court in disposing of the Matter effectively and without much delay because Justice delay is equal to Justice denied.
Who are entitled to take the benefit of Plea bargaining?
To obtain the benefit of Plea bargaining, an application has to be filed by the accused before the Magistrate.
Section 265B states that who are the persons that are entitled to file the application of Plea bargaining-
Any accused against whom a trail is pending and who is above the age of 18 years.
Section 265D provides that the accused should not be a juvenile child under Section 2(k) of the Juvinile Justice( Care and Protection of Children Act), 2000.
Section 265B(2) provides that the accused should not have been convicted earlier for the same offense.
Section 265B(1) provides that the application of plea bargaining must be filed by the accused in that court where the trail is pending.
Section 265(2) provides that what all contents the application of plea bargaining shall contain-
A brief description of the case and the offense committed by the accused.
The application should accompany an affidavit by the accused stating that he is voluntarily filing this application and must contain a statement that he has not been convicted earlier for the same offense.
Section 265B(3) provides that on receiving such application of plea bargaining the Court shall send a Notice to the- to the Public Prosecutor or the Complainant, as the case may be and the accused to appear on the date fixed for the case.
On the fixed date when the accuse appears before the Court, the Court shall examine him (in camera) and at this time the Court shall satisfy itself that the application filed by the accused is filed by him voluntarily.
When the Court is satisfied that the application was filed by the accused voluntarily, it shall direct the Prosecutor or the Complainant to negotiate with the accused and such negotiation shall also include paying of compensation to the aggrieved.
But in any case if the Court finds that the application was not filed voluntarily by the accused then the Court shall not consider such application and shall proceed according to the normal trail provided under the Code.
Section 265D states that where a mutually satisfactory disposition of the case has been worked out between the Complainant and the Accused then the Court shall pass an order of compensation to the victim.
The judge of the Court in case of plea bargaining shall be final and no appeal lies against such judgment subject to the jurisdiction of the Supreme Court under Article 136 or of the Hight Court under Article 226 and 227 of the Constitution.
TYPES OF PLEA BARGAINING
Charge bargaining-
Negotiating on the charges put forth against the accused in the trail.
2. Sentence Bargaining-
Pleading guilty on the stated charge for obtaining lighter sentence.
3. Fact Bargaining-
Involves an admission of certain fact in return for an agreement, not to introduce certain other facts into evidence.
Section 438 of Cr.p.c deals with the provisions of an Anticipatory Bail.
When a person has an apprehension or a reason to believe that he may be arrested for committing a non-bailable offense, that person in such a case shall apply for an anticipatory bail.
The essential requirement under this section is that the person must have ‘a reason to believe’ that he might be arrest for commission of a non-bailable offense.
To Whom shall the Anticipatory Bail shall be applied?
An Anticipatory Bail can only be applied before the High Court or the Court of Session for obtaining a direction under section 438 that in the event of such an arrest as apprehended by him, he shall be released on bail.
The Court may pass such a direction after taking into consideration the following factors-
The nature of the accusation
Ascertaining the fact that whether the person has undergone a conviction in the past for a cognizable offense.
The fact that the accusation of the person is made in order to injure or humiliate him by having him so arrested.
After considering all such factors the Court shall approve the application of Anticipatory Bail by passing an interim order or reject the application, as the Court deems fit.
At what time an application for Anticipatory Bail can be applied for?
Anticipatory Bail can be applied for and be granted even after the F.I.R has been filed but not after the person/accused getting convicted.
A Negotiable Instrument is that document that includes a ‘promise to pay’ a certain amount of money to the bearer of the document. Its a mode of transferring a debt from one person to another. Negotiable Instruments are always in written form.
Examples of Negotiable instruments are- a cheque, a promissory note, a bill of exchange.
DEFINITION OF A NEGOTIABLE INSTRUMENT
Documents of a certain type which are used in commercial transactions and monetary dealings, are known Negotiable instruments.
“Negotiable” means transferable by delivery and
“instrument” means a written document by which a right is created in favor of some person. Thus, negotiable instrument means a document which is transferable by delivery.
According to Section 13(i) of negotiable instrument Act, 1881 a negotiable instrument includes and means a promissory note, bill of exchange or cheque.
CHARACTERISTICS OF A NEGOTIABLE INSTRUMENT
Freely transferrable:The property in a negotiable instrument gets transferred by a simple process of mere delivery if it is payable to bearer, endorsement and delivery or payable to order.
Recovery: One can sue upon the instrument in his own name.
Presumption as to considerations: These instruments are presumed to have been
made,
drawn,
accepted,
endorsed,
negotiated
or transferred for consideration.
Payable to order or bearer: It must be payable either to order or bearer.
Holder’s title free from all defects: The holder (one who acquires the instrument in good faith and for consideration) in due course gets title free from all defects.
Presumption as to holder-:Every holder of negotiable instrument is presumed to be holder in due course.
TYPES OF NEGOTIABLE INSTRUMENTS
There are two types of Negotiable Instruments:
Instruments Negotiable by Statute:
The Negotiable Instruments Act mentions orgy three kinds of negotiable instruments (Section 13). These are:
Promissory Notes
Bills of Exchange
Cheques:
Instruments Negotiable by Custom or Usage:
There are certain other instruments which have occupied the character of negotiability as a result of usage or custom of trade. For example:
Exchequer bills.
Bank notes,
Share warrants,
Circular notes,
Bearer debentures,
Dividend warrants,
Share certificates with blank transfer deeds, etc.
SUB-TYPES OF NEGOTIABLE INSTRUMENTS
PROMISSORY NOTES:
Section 4 of the Act defines a promissory note as an instrument in writing.
It contains an unconditional undertaking which is signed by the maker to pay of certain sum of money to, to the order of certain person, or to the bearer of the instruments. The person, who makes the promissory note, promises to pay and is called the maker. The person to whom the payment is to be mode is called the payee.
Essential features:
The following are the essential features of a Promissory note,:
The promise must be in writing.
The promise must be signed by the maker or payer.
The promise must be unconditional.
The amount to be paid must be definite in terms of money.
It must be payable on demand or at a fixed or determinable future date.
It must be payable to a definite person. The Payee must be certain.
Promissory note must bear stamp at the rate prescribed by law of a country.
There are two parties a promissory note,
Maker
Payee
NOTE: An instrument containing a promise to pay a sum after educating necessary expenses or imposing any other condition is not a promissory note.
Illustrations:
I promise to pay X Rs. 1500, and all other sums which shall be due to him.
I promise to pay Y Rs. 5500, first deducting there out any money which he may owe me.
Cases:
In Chandabolu Bhaskara Rao’s case, the Honble High Court of Andhra Pradesh held that since promissory note is not a compulsorily attestable document, even if the signatures of the attesters are taken and after its execution it does not amount the material alteration. So it does not get vitiated. Therefore, whether there were attesters or not at the time of its execution is immaterial, more so when its execution is admitted.
In Haribhavandas Parasaran and Co. v. A.D. Thakur [A.I.R. 1963 Mys. 107], it was held that- It is mandatory that the presumption under Section 118(a) should be made until the contrary is proved.
BILL OF EXCHANGE:
It is an instrument in writing. Further, it contains an unconditional order signed by the maker, directing a certain person to pay
a certain sum of money only to, or
to the order or
certain person to the bearer of the instrument.
Essentials:
The amount payable must be certain.
The payment must be made in money.
The bill Payable may be either on demand or after a specified period.
The bill may be payable either to the bearer or to the order or payee.
Illustrations:
Please let the bearer have Rs. 15000 and oblige.
We hereby authorize you to pay on our account to the order of X, Rs 65000.
CHEQUE: A cheque is a bill of exchange drawn on a specified banker. It is expressed to be payable otherwise than on demand.
Essentials:
In writing
Express order to pay
Definite and unconditional order
Signed by drawer
Order to pay certain amount
Payable on demand
Parties:
Drawer: The maker of a bill of exchange.
Drawee: The person directed to pay the money by the drawer.
Payee: To whom or to whose order the money ore directed to be paid by the instruments. The person named in the instrument only.
Case:
Dashrath Roopsingh Rathod Vs. Stae of Maharashtra & Anr.
The Supreme Court in this case has changed the basic criteria under Section 138 of Negotiable Instruments Act to prosecute a person who had presented the cheque which had been returned due to insufficiency of funds or if the amount exceeds the amount in the bank of the payer.
Types of Cheques:
Cheques are of different kinds-
1.Open cheques: An open cheque is one which is payable in cash across the counter of the bank
2. Crossed cheques: A crossed cheque is one which has Iwo short parallel lines marked across its face. It can be paid only to another banker. The advantage of crossing is that it reduces the danger of unauthorized persons getting possession of a cheque and cashing it.
Bearer Cheque
Order Cheque
Marked Cheque
Not payable or bad cheque
Ante-dated Cheque
Post dated Cheque
Stale Cheque
Multilated Cheque
Digital Cheque- Cheques in Electronic form and Truncated Cheques.
Banker Cheque
Golden Cheque
Travellers Cheque
DIFFERENTITATIONS
I.
Promissory Note
Bill of Exchange
1. It contains an unconditional promise.
1. It contains an unconditional order.
2. There are two parties –
· the maker and
· the payee.
2. There are three parties –
· the drawer,
· the drawee and
· the payee.
3. It is made by the debtor.
3. It is made by the creditor.
4. Acceptance is not required
4. Acceptance by the drawee is a must
5. The liability of drawer is primary and absolute as well.
5. The liability of the maker/drawer is secondary. Also, it is conditional upon non-payment by the drawee.
II.
Cheque
Bill of Exchange
1. It is drawn on a banker.
1. It can be drawn on anybody including a banker.
2. The amount is always payable on demand only.
2. The amount is payable on demand or even after a specified period.
3. It can be crossed to end its negotiability.
3. It cannot be crossed.
4. Acceptance is not required.
4. Acceptance is a must.
OTHER NEGOTIABLE INSTRUMENTS
Bill in sets:
Foreign bills are generally drawn in set of 3 each. To avoid miscarriage during transit, they are drawn in different parts and each part is transmitted separately and all these parts, as a whole constitute a complete bill.
Accommodation Bill:
They are drawn, accepted and subsequently discounted from a bank for accommodating a friend.They are not real bills and hence, do not represent acknowledgement of an actual debt.
Example: A in order to financially help X, writes a bills on a mutual friend X who accepts the bill, Y then gets the bill discounted from a bank. He pays the required amount on maturity to X (acceptor) who in turn makes payment to the bank. Thus in an accommodation bill it is the payee who is the principal debtor and the drawer and accept or act as a surety for him.
Ambiguous Instruments (Section 17)
An instrument, which in form is such that it may either be treated by the holder as a bill or as a note, is an ambiguous instrument. Bill drawn to. to the order of the drawee, by an agent on his principal, by one branch of a bank on another, by the direction of a company, their cashier are also ambiguous instruments.
Example: where P draws a bill payable to P’s order, it is not an ambiguous instrument and cannot be treated as a promissory note.
Inchoate Stamped Instrument (Sec 20):
When one person gives to another such a document, the other person is prima facie entitled to complete the document and make it into a proper negotiable instrument up to the value mentioned in the instrument, or up to the value covered by the stamp affixed on it.
The person signing the instrument is liable on it to any holder in due course. Inland and foreign Bills:
A bill which is
drawn or made in India and also made payable in India or
drawn or made in India upon any person resident in India, although it may be made payable in a foreign country, is deemed to be an inland bill.
Example: A bill of exchange drawn in Bombay and made payable in Mumbai, although the drawee may be residing outside India. Or a bill of exchange drawn in Raipur on a person resident in Mumbai, although it may be made payable outside India.
A bill which is not an inland bill, is deemed to be a foreign bill.
Example : A bill of exchange drawn in India, on a person residing outside India and made payable outside India.
Forged Instruments:
In Forged instruments, there is a complete absence of title from the very beginning. Forged instruments in the eyes of law have no existence whatsoever. A forged signature is altogether inoperative.
Plaint under CPC- Particulars, Procedure, Admission & Rejection
Plaint under CPC: Particulars, Procedure, Admission & Rejection
A plaint is a legal document which contains the written statement of the plaintiff’s claim. A plaint is the first step towards the initiation of a suit. In fact, in the very plaint, the contents of the civil suit is laid out.
Through such a plaint, the grievances of the plaintiff are spelled out, as well as the possible causes of action that can arise out of the suit. A plaint which is presented to a civil court of appropriate jurisdiction contains everything, including facts to relief that the plaintiff expects to obtain.
Although it hasn’t been defined in the CPC, it is a comprehensive document, a pleading of the plaintiff, which outlines the essentials of a suit, and sets the legal wheels up and running.
Order VII of the CPC particularly deals with a plaint. A few of the essentials of a plaint implicit in itself are those only material facts, and not all facts or the law as such is to be stated, the facts should be concise and precise, and no evidence should be mentioned.
PARTICULARS OF A PLAINT:
The name of the particular court where the suit is initiated.
Name, place, and description of the plaintiff’s residence
Name, place, and description of the defendant’s residence.
A statement of unsoundness of mind or minority in case the plaintiff or the defendant belongs to either of the categories.
The facts that led to the cause of action and when it arose.
The facts that point out to the jurisdiction of the court.
The plaintiff’s claim for relief.
The amount allowed or relinquished by the plaintiff if so
A statement containing the value of the subject matter of the suit as admitted by the case.
ADDITIONAL PARTICULARS:
Order VII, Rule 2 states that the plaintiff shall state the exact amount of money to be obtained from the defendant if the case is so. On the other hand, if the exact amount cannot be arrived at, as is then case with mesne profits, or claim for property from the defendant, an approximate figure must be mentioned by the plaintiff.
Order VII, Rule 3 states that when immovable property is the subject matter of the plaint, the property must be duly described, that is sufficient in the ordinary course to identify it.
Order VII, Rule 3 states that when the plaintiff has initiated the suit in a representative capacity, it has to be shown that he/ she has sufficient interest in doing the same as well as has taken the required steps to ensure the same.
The plaint should adequately show the involvement of the defendant, including his/ her interests in the same and thereby justifying the need to bring him/ her forward.
If the plaintiff files the suit after the expiration of the period of limitation, he/ she must show the reason for which such an exemption from law is being claimed.
PROCEDURE FOR ADMISSION OF THE PLAINT:
When the court serves the summons for the defendant, according to Order V, Rule 9, the plaintiff must present copies of then plaint according to the number of defendants, and should also pay the summons fee, within seven days of such a summons.
THE PARTICULARS OF A PLAINT CAN BE DIVIDED INTO THREE IMPORTANT PARTS SUCH AS HEADING AND TITLE, BODY OF THE PLAINT, AND RELIEF CLAIMED.
HEADING AND TITLE:
NAME OF THE COURT:
The name of the court should be written as the heading. It is not necessary to mention the presiding officer of the court. The name of the court would be sufficient. Eg. In the Court of District Judge, Kolkata.
PARTIES TO THE SUIT:
There are two parties to every suit, the plaintiffs and the defendants. For the purpose of the suit, the name, place, and description of the residence of both the plaintiffs and the defendants have to be mentioned in the particular plaint.
When there are several plaintiffs, all of their names have to be mentioned and have to be categorically listed, according to their pleadings, or in the order in which their story is told by the plaintiff.
Minors cannot sue nor can be sued. So if one of the parties is a minor or of unsound mind, it will have to be mentioned in the cause title.
TITLE OF THE SUIT:
The title of the suit contains the reasons for approaching the court and the jurisdiction before which the plaint Is initiated.
BODY OF THE PLAINT
This is the body of the plaint wherein the plaintiff describes his/ her concerns in an elaborative manner. This is divided into short paragraphs, with each paragraph containing one fact each. The body of the plaint is divided into two further parts which are:
FORMAL PORTION:
The formal portion contains the following essentials.
A statement regarding the date of cause of action. It is necessary for every plaint to contain the date when the cause of action arose. The primary objective behind this is to determine the period of limitation.
There should be a statement regarding the jurisdiction of the court. The plaint must contain all facts that point out the pecuniary or territorial jurisdiction of the court.
The value of the subject matter of the suit must be stated properly in this part of the plaint.
Statement regarding minority.
The representative character of the plaintiff
The reasons why the plaintiff wants to claim exemptions under the law if the suit is initiated after the period of limitation.
SUBSTANTIAL PORTION:
This portion of the plaint must contain all the necessary and vital facts, which constitute the suit. If the plaintiff wishes to pursue a course of action on any other grounds, such grounds must be duly mentioned.
It should be shown in the plaint that the defendant is interested in the subject matter and therefore must be called upon by the court.
If there is more than one defendant, and if the liability is not joint, then the individual liability of each and every defendant must be shown separately.
In the same way, if there is more than one plaintiff, and their cause of action is not joint, then too, the same has to be mentioned separately.
RELIEF:
The last part of the plaint is the relief. The relief claimed must be worded properly and accurately. Every plaint must state specifically the kind of relief asked for, be it in the form of damages, specific performance or injunction or damages of any other kind. This has to be done with utmost carefulness because the claims in the plaint cannot be backed by oral pleadings.
SIGNATURE AND VERIFICATION:
The signature of the plaintiff is put towards the end of the plaint. In case the plaintiff is not present due to any legitimate reason, then the signature of an authorized representative would suffice.
The plaint should also be duly verified by the plaintiff. In case the plaintiff is unable to do so, his/ her representative may do the same after informing the court.
The plaintiff has to specify against the paragraphs in the pleadings, what all he/ she has verified by his/ her own awareness of the facts, and what has been verified as per information received, and subsequently believed to be true.
The signature of the plaintiff/ verifier, along with the date and the place, at the end of the plaint is essential.
The verification can only be done before a competent ourt or in front of an Oath Commissioner.
Where the language of the plaint is beyond the comprehension of the plaintiff, the same has to be translated, or made known to the plaintiff, and only after that can he/ she put his/her signature and get the plaint verified by the Oath Commissioner.
RETURN OF PLAINT
Order VII, Rule 10 states that the plaint will have to be returned in such situations where the court is u able to entertain the plaint, or when it does not have the jurisdiction to entertain the plaint.
The courts can exercise the power of returning the plaint for presentation before the appropriate court if it feels that the trial court itself did not have the appropriate jurisdiction in the first place.
Once the appellate court finds out that the trial court decided on the civil suit without proper jurisdiction, such decision would be nullified.
DISMISSAL OF SUIT
If the plaint is to be returned to the parties after its rejection, the court has to fix a date for the same where the parties can arrive for this purpose.
This was mentioned in Rule 10, inserted by the amendment act of 1976. If the court does not have the adequate jurisdiction, the proper course is to return the plaint and not to dismiss it.
NATURE OF RETURNED PLAINT
When a plaint has been returned for want of proper jurisdiction, it is to be treated as a fresh plaint. This fresh plaint can be amended and no consequences can arise as a result of it. This amended plaint cannot be rejected by stating that the averments were not present in the original plaint. This argument will not be taken into consideration and the plaint will be allowed to stand.
WHEN CAN A PLAINT BE REJECTED?
A plaint can be rejected under the following scenarios:
Where the cause of action is not disclosed
When the relief claimed by the plaintiff is undervalued, and he/ she is not able to correct it even after being instructed by the court to do so.
When the relief claimed is proper, but the plaintiff proceeds with the plaint on a paper which has not been stamped sufficiently and fails to do so even after the court’s instruction.
Where the suit stems from a statement which has been essentially barred by law.
WHEN CAN THE APPLICATION FOR THE REJECTION OF A PLAINT BE MOVED?
Application for the rejection of the plaint can be in instituted at any time, even after the issues have been solidified in the said plaint.
CONCLUSION
A plaint is important in the sense that it is the first and foremost step towards instituting the suit. Therefore, due care has to be taken to ensure that the procedure required for the initiation of plaint has been duly recognized.
It is mandatory to follow protocol by stating the relevant facts, the necessary details, refrain from providing evidence and mention the kind of relief envisaged so that the plaintiff is duly benefitted
Decree Under CPC-Meaning, Types, Amendment & Differences
Decree Under CPC: Meaning, Types, Amendment & Differences
What is a decree? A decree specifically means an announcement of the legal consequences of a particular act that is brought in after weighing both sides of the case, and further, it is a confirmation that the court’s order is carried out.
But over the course of years, with the procedural merger of law and equity, the term judgment has slowly begun to replace the term decree in various jurisdictions. Historically, this distinction was quite prominent.
It was evident in the UK, but after the passage of the Judicature Act, this distinction has ceased to exist. Similarly, in the United States, this difference between a judgment and a decree has lost its relevance.
But this difference seems to quite concrete even in India even in this century and has been solidified by the Code of Civil Procedure, 1908, which recognizes this distinction completely.
MEANING:
Defined under Section 2(2) of the civil procedure code, a decree is a formal expression which provides the determination of the interests of both the parties in a conclusive manner with regards to any of the controversial matters or concerns of the particular civil suit.
A decree may include rejection of a plaint or determination of any question under section144, but it does not include the following:
any adjudication from which an appeal lies as an appeal from an order
any order of dismissal for default.
To understand the concept of a decree, we must view it as a subset of judgment. It is the decision arrived at by the judge after hearing the merits on both sides of the case, and also the expression of the same.
A decree forms the latter part of a judgment and is extracted from the same by a decree clerk after obtaining the basic results of the case.
Interestingly, the date of the decree is the date of the judgment for facilitating the process of execution and for the benefit of the judge succeeding.
However, the date on the decree can be changed within the next 15 days. A set-off or a counterclaim can also be obtained on the same decree.
TYPES OF DECREE
PRELIMINARY DECREE:
It is a preliminary decree when the court decides on all the matters concerning the parties to a suit, but nonetheless, does not dispose of the suit.
This particularly happens when it is essential for the adjudication to adjudicate on certain matters of the suit before deciding on the rest.
Supreme Court, in the case Shankar v Chandrakant, said that a preliminary decree is in use when the court decides on the rights and liabilities of the parties without deciding on the result, and in fact, leaving the pronouncement of the result for further proceedings. CPC allows the passing of the preliminary decree in cases relating to the settlement of mortgage, suits for preemption, dissolution of a partnership, administration suit, etc.
But a case following this, the Narayanan vs Laxmi Narayan AIR 1953, case, said that this list aforementioned, which is given in the CPC is not exhaustive and that preliminary decree can be used in other matters as well.
FINAL DECREE:
When the suit is completely disposed of by the decree so far as a separate judgment by a court is uncalled for, it is called a final decree. All the problems, controversies and differences between the parties to a suit are completely resolved by the passing of a final decree.
PARTLY PRELIMINARY AND PARTLY FINAL:
When certain issues prevalent in the civil suit are resolved but certain others are left for future adjudication, such decree is called partly preliminary and partly final. For example, a decree for possession and mesne profits can be preliminary for mesne profits but final with regards to possession.
DEEMED DECREE:
There is a fictitious implication in the word ‘deemed’ which usually means that a thing is assumed to be something that it usually isn’t. Here, any adjudication that does not fulfill the requisites under 2(2) cannot be deemed to be a decree.
However certain other orders and decisions are deemed to be decrees, for example, rejection of a plaint and determination of questions under Section 144.
CONSENT DECREE:
A consent decree is a decree that is brought about y the agreement between both the parties that puts disputes to rest without admission of liability. It is the result of an adjudication and the very reason for such adjudication is the consent of the parties.
EX- PARTE DECREE:
A decree passed in the absence of the defendant is an ex- parte decree.
DECREE PASSED IN APPEAL:
It is a decree passed in continuation of litigation between the parties.
DECREE ON COMPROMISE PETITION:
It is passed as a result of compromise petition filed by both the parties.
CONDITIONAL DECREE:
It is a decree with certain inbuilt conditions that form part of the decree.
CONDITIONS FOR DECREE:
There are a few basic conditions that have to be fulfilled so that an adjudication becomes a decree. They are:
There has to be a formal expression of adjudication. If a decree has not been drawn up, then there is absolutely no scope for an appeal from the judgment.
All adjudications arise from the institution of a suit. A suit arises by the filing of a plaint, and the most logical conclusion to a suit is the decree.
All rights of the parties with respect to any or all of the matters controversial in a suit must have been dealt with. If this has not been the case, then the same cannot be deemed a decree.
This determination of the rights of the parties must be one that is conclusive and not open to future speculation. It must be complete, absolute and final.
AMENDMENT OF DECREE:
Under Section 152 of the CPC, any clerical errors with regards to decrees can be corrected by the courts themselves or on application by the plaintiffs. But according to Section 153, the courts have a general power to amend, and may, at any time, as it deems fit, amend any error or defect proceeding in a suit.
The corrections that the courts are entitled to make are only relating to accidental omissions or clerical errors and not other errors which have been brought about due to gross negligence or mistake.
But before such a move, the court must be satisfied and it must be validly proven that such an error was something no more than an arithmetic error or a clerical mistake and nothing that changes or alters the very functioning of the suit or nothing that is done under malice.
PREPARATION OF DECREE:
It is needless to say that the decree must be framed by the judge with utmost carefulness and impeccable clarity, leaving no ground for an obvious mistake.
The degree must be in consonance with the judgment and also should be clear, concise and precise.
The nature and extent of the relief granted must be explained in great detail, as also what each party is ordered to do. Such declaration of the rights of the parties must be accurate, simple and precise.
There are certain directions given with respect to decrees that have been mentioned below:
In case of possession of any agricultural land, a prior directive has to be issued with regards to whether or not the possession is with respect to the entire land, wholly and immediately, or such possession can be effected only after removal of any crop standing on the property. This has to be confirmed in the decree.
In cases of decrees that reach the appellate court, the court by way of language shall affirm to the standards set by law, and should mention whether the decree of the lower court stands affirmed, varied, set aside or reversed. In affirming the decree of a lower court, the terms of the decretal order shall be recited again, so as to confirm it. In varying a decree, the relief granted should be spelled out. Similarly, while reversing a decree, the relief accorded presently must be confirmed again.
DECREE HOLDER:
“Decree-holder” means any person in whose favor a decree has been passed or an order capable of execution has been made
JUDGMENT DEBTOR:
“Judgment-debtor” means any person against whom a decree has been passed or an order capable of execution has been made.
ORDER:
The order is the formal expression of any decision that is not a decree.
An order may originate from a suit and generally arises from proceeds that commence on an application.
An order is founded on objective considerations, and hence it must contain a discussion of the various issues that are conflicting in a particular suit.
DIFFERENCES BETWEEN AN ORDER AND A DECREE:
BASIS FOR COMPARISON
DECREE
ORDER
Defined in
Section 2(2)
Section 2(14)
Ascertainment of rights
Clearly ascertains rights
May or may not ascertain rights
Number
There is only one decree
There can be many orders
Type
Can be preliminary, final, partly preliminary or partly final
Can only be final.
Appeal
Normally appealable unless barred by law.
Appealable or non- appealable
JUDGMENT AND DECREE
Having been defined under Section 2(9) of the CPC, a judgment is a final statement given by the judge on the basis of the proclaimed decree.
A judgment is an exhaustive document wherein the judge deals with each and every issue mentioned in the suit which is contested and provides decisions on each of these issues.
Therefore, every judgment would include the facts, findings, evidence, and conclusions of that particular case.
But on the other hand, a decree is a part of the judgment that appears in the latter part of the same and is extracted from the judgment by the decree clerk who possesses the basic facts and results of the case.
Therefore, every judgment contains a decree, where the decree separated and standing independently from the judgment is meaningless.
A decree has to be in line with the judgment and also, the correct interpretation of the judgment has to be presented.
But if the situation is such that there is a conflict between the judgment and the decree, them the decree has to be properly construed and if the conflict still persists, then the decree has to be adhered to.
CONCLUSION:
A decree being the subset of judgment is a formal expression of the resolution of the controversies or bones of contention existing between the different parties to a contract.
It is common knowledge that rights may be procedural or substantive. But the rights proclaimed under a decree must be substantive and not merely procedural.
However, a decree may not pertain only to the merits of the case, it can also be on the grounds such as the character of the parties, settlement etc.
Therefore, a decree is a formal expression of an adjudication that determines the rights of parties pertaining to any or all of the controversies in a suit.
THE MOST IMPORTANT FEATURES OF THE INDIAN EVIDENCE ACT TO BE KNOWN BY A LAW STUDENT-
The Indian Evidence Act or The Law of Evidence is a subject which cannot be understood without understanding these important features which forms the basis of the Law of Evidence.For a good Lawyering skills and hands on the subject these features are a must on tips. Only then can you jump on to the next level to understand and study The Law of Evidence These important features are-
Court
Fact
Relevant fact
Facts in issue
Document
Evidence
Proved
Disproved
Not proved
Affidavit
Motive
Circumstantial Evidence
May presume
Shall presume
Conclusive proof
These are explained in detail below-
1) Court- Court includes all Judges and Magistrates,and all persons except Arbitrators,legally authorized to take evidence. A Court is a governmental institution with the authority to decide legal disputes between the parties.All kinds of persons are free to bring thier disputes to the court and seek a fair judgement. The Judiciary is the system who interprets and applies the Law.The place where the court sists is known as a venue.The room where the court proceedings are held is known as a Court room. A Court is constituted by a minimum of three parties-
The Plaintiff-is a person who complains for an injury caused to him.
The Defandant-is a person who defences himself against the complaint made by the plaintiff against the defendant and,
The Judicial power-who is to examine the truth of the fact and deliver a judgement.
Besides this Advocates of both the parties.
2) FACT- The term ‘’fact’’ means and includes-
Any thing,state of things,or relation of things,capable of being perceived by the senses;
Any mental condition of which any person is conscious.
Example-
That man heard or saw something,is a fact.
That women has a certain reputation,is a fact.
The jar kept on the table,is a fact.
That a man holds a certain opinion,has a certain intention,acts in good faith,acts fraudulently,or usese a word in a particular sense,or is or was at a specified time conscious of a particular sensation,is a fact.
That girl has so and so name,is a fact.
3) Relavant fact-
A fact is said to be relavant to another when one fact is connected with the other fact in any ways reffered to in the provisions of this act in the chapter of relavancy of facts. Relavant fact-The word ‘relavant’ means that any two facts to which it is applied are in such a way related to each other that,one,either taken by itself or in connection with the other facts,proves or renders probablity of the past,present or future existence or non-existence of the other. ‘Relavant’ means admissible in evidence. Of all the rules in evidence the most important is that the evidence adduced should be confined only to the matters which are in dispute,or which form the subject of investigation.
4) Facts in issue-
The expression ‘fact in issue’ means and includes- Any fact from which,either by itself or in connection with other facts,the existence,non-existence,nature or extent of any right,liability,or disability,asserted or denied in any suit or proceeding,necessarily follows. Example- A is accused for the murder of B. At his trial in the court the following facts may be in issue-
That A caused B’s death;
That A intended to cause B’s death;
That A, at the time of doing the act which caused B’s death,was by reason,of unsound mind or incapable of knowing its nature.
5) Document-
The term ‘’document’’ means any matter expressed or described upon any substance by means of letters,figures or marks,or by more than one of those means,intended to be used,or which may be used,for the purpose of recording that matter. Example-
A writing is a document;
Words printed,lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.
The term document includes all material substances on which thoughts of the people are expressed by writing or in any other way,by a mark or a symbol. For instance,the wooden board on which the bakers,the milk men,indicate by notches,the number of loaves of bread or liters of milk supplied to the customers,are documents.
6) Evidence- Evidence means and includes-
All statements which the court permits or requires to be made before it by the witnesses,in relation to matters of fact under inquiry;such statements are called oral evidence;
All documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.
The term Evidence covers (a) the evidence of witnesses, and (b) Documentary evidence. Evidence can both be oral and documentary and electronic records can be produced as evidence. The word ‘evidence’ does not includes everything that is before a Court.There are other medium of proof as well.For eg-
The statement of parties,
The result of investigations held,
Any real or personal property been inspected in determining the question at issue,such as weapons,tools or stolen property.
7) Proved-
A fact is said to be proved when after considering the matters before it,the Court either beleives it to exist or considers its existence so probable that a prudent man ought,under the circumstances of the particular case,to act upon the supposition that it exists. When the Court beleives it to exist,it means it is proved beyond reasonable doubt.In the case of criminal proceeding the guilt of the accused is to be proved beyond reasonable doubt. In civil proceedings proving beyond reasonable doubt is not necessary,only balancing of possibilities and probablities is sufficient.The meaning of proved means positive findings.
8) Disproved-
A fact is said to be disproved when,after considering the matters before it,the Court either believes that it does not exist,or considers its non-existence so probable that a prudent man ought,under the circumstances of the particular case,to act upon the supposition that it does not exist. Disproved is contrary to proved.It also means negative findings.In disproved the existence of such fact is not proved but its non-existence is proved. 9) Not Proved- A fact is said not to be proved when it is neither proved nor disproved.There is no positive or negative findings.It is a situation where the parties fail to explain precisley,how the matter stands.
10) Affidavit-
An affidavit is a written statement made voulentarily made by an affiant or deponent under an oath administered by a person who is legally authorized to do so.Affidavits are confiened only to those facts which the deponent is able of his own knowlegde to prove.An affidavit filed by a party cannot be termed as evidence.Affidavits cannot be used in evidence.It can only be used if the Court permits to be used for sufficient reasons.
11) Motive-
A motive in law is the cause that moves the people to commit a certain act.The motive is a very essential factor to be seen behind every act,specially a criminal act committed.It can be explained with the help of an example-
Rekha, who was the owner’s daughter was killed by the tenant dheeraj,who had a evil eye on rekha. Dheeraj had tried to rape Rekha but Rekha managed to escape and told her mother about the incident on account of which Rekha’s father abusingley told dheeraj to vacate the house immidiatley.This may be taken as the motive of the Murder.
If the prosecution is able to prove the motive,then the Court has to consider it and see whether it is adequate or not.Where there is a direct evidence,the evidence of motive is not of much significance.
12) Circumstantial evidence-
It is one of the well established fact in law that the witness may lie but the circumstances never lie.It is not necessary that a direct ocular evidence is needed to prove that a person was behind the crime.The guilt of a person can also be proved by circumstantial evidence. For conviction in the case of circumstantial evidence the following conditions must be accomplished. They are-
The circumstances from which the conclusion of the guilt is to be drawn should be fully established.
The facts established should be consistent and they should not be explainable on any other hypothesis except that the accused is guilty.
The nature of the circumstances should be conclusive.
They should include only the facts which are to be proved.
There must be a chain of evidence completely showing that in all human probability the act must have been done by the accused.
13) May Presume-
The term ‘’may presume’’ means that the Court has the authority to presume the fact as proved,or to call upon for a confimatory evidence,as the circumstances require.In such a case the presumption is not a hard and fast presumption,incapable of rebuttal.Such presumptions in law are called as ‘juris et de jury’. The Court may presume a fact or regard such fact as proved,unless it is disproved,or it may ask for its proof.
14) Shall Presume-
When a Court presumes a certain fact it has no other option except considering the fact as proved unless an evidence is given to disprove that fact.The party interested in disproving that fact can produce an evidence if he can.In such a case the Court will have the power to allow the opposite party to disprove the fact which is presumed as proved and if the opposite party is successful in disproving the fact then the Court shall not presume the fact. The words ‘’shall presume’’indicates that presumption therein is unrebuttable.
15) Conclusive Proof-
When one fact is declared by this act to be conclusive proof of another,the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.
Important features of the Indian Evidence Act – Kanoon
Important features of the Indian Evidence Act – Kanoon
An insider is a person who has access to the unpublished sensitive information in respect of the securities of a company, because of his connections with the company via an employment in the company or can be any other connection. This means that the information is not known to the public and is of such nature that it would affect the share price of the company if exploited in a wrong way.
They are the best rated shares. These stocks are expected to provide their investors with a sizeable return despite the ups and downs of the economy. They have the highest status as investment is based on return, safety, marketability. It is a stock that sells at a high price and is considered as an extremely valuable asset or property.
The Law Of Foreign Direct Investment-Qualified Foreign Investor(QFI)
THE LAW OF FOREIGN DIRECT INVESTMENT
TOPIC-QUALIFIED FOREIGN INVESTOR (QFI) (Important terms in FDI)
A Qualified Foreign Investor (QFI) means a non-resident investor who meets the KYC (Know Your Customer) requirements of SEBI (Securities and Exchange Board of India) for the purpose of making investments in accordance with the regulations/orders/circulars of
RBI/SEBI.
The Law Of Foreign Direct Investment-Qualified Foreign Investor(QFI)
The Law Of Foreign Direct Investment-Qualified Foreign Investor(QFI)
Foreign Direct Investment - Person of Indian Origin
THE LAW OF FOREIGN DIRECT INVESTMENT
TOPIC- PERSON OF INDIAN ORIGIN (PIO) (Important terms in FDI)
In the law of FDI a ‘Person of Indian Origin’ (PIO) means a citizen of any country other than Bangladesh or Pakistan, if-
(i) He at any time held Indian Passport
(ii)He or either of his parents or any of his grandparents was citizen of India by virtue of the Constitution of India or the Citizenship Act, 1955 (57 of 1955) or,
(iii)The person is a spouse of Indian citizen or a person referred to in sub-clause (i) or (ii).
Foreign Direct Investment – Person of Indian Origin
Foreign Direct Investment - Foreign institutional investor
THE LAW OF FOREIGN DIRECT INVESTMENT
TOPIC- Foreign Institutional Investor(FII) (Important terms in FDI)
Foreign Institutional Investor (FII) means an entity incorporated or established outside India which proposes or seeks to make an investment in India and which is registered as a FII in accordance with the Securities and Exchange Board of India (SEBI) (Foreign Institutional Investor) Regulations 1995.
Foreign Direct Investment – Foreign institutional investor
Foreign Direct Investment – Foreign institutional investor
TOPIC-FOREIGN CURRENCY COVERTIBLE BOND (FCCB)- (Important terms in FDI)
Foreign Currency Convertible Bond (FCCB) means a bond issued by an Indian company expressed in foreign currency, the principal and interest of which is payable in foreign currency. FCCBs are issued in accordance with the Foreign Currency Convertible Bonds and ordinary shares (through depository receipt mechanism) Scheme 1993 and subscribed by a non-resident entity in foreign currency and convertible into ordinary shares of the issuing company in any manner, either in whole, or in part.
Foreign Direct Investment- Venture Capital Fund (VCF)
THE LAW OF FOREIGN DIRECT INVESTMENT
TOPIC- VENTURE CAPITAL FUND (VCF) (Important terms in FDI)
Venture Capital Fund (VCF) means a Fund established in the form of a Trust, a company including a body corporate and registered under Securities and Exchange Board of India ( Venture Capital Fund) Regulations, 1996, which
(i)has a dedicated pool of Capital,
(ii) raised in the manner specified under the Regulations, and
(iii) invests in accordance with the Regulations.
Foreign Direct Investment- Venture Capital Fund (VCF)
Foreign Direct Investment- Venture Capital Fund (VCF)
Foreign Direct Investment- Overseas Corporate Body (OCB)
THE LAW OF FOREIGN DIRECT INVESTMENT
TOPIC- Erstwhile Overseas Corporate Body (OCB) (Important terms in FDI)
Erstwhile Overseas Corporate Body(OCB) means a company, partnership firm, society and other corporate body owned directly or indirectly to the extent of at least sixty percent by non-resident Indian and includes overseas trust in which not less than sixty percent beneficial interest is held by non-resident Indian directly or indirectly but irrevocably and which was in existence on the date of commencement of the Foreign Exchange Management (Withdrawal of General Permission to Overseas Corporate Bodies (OCBs) ) Regulations, 2003 (the Regulations) and immediately prior to such commencement was eligible to undertake transactions pursuant to the general permission granted under the Regulations.
Foreign Direct Investment- Overseas Corporate Body
Foreign Direct Investment- Overseas Corporate Body (OCB)
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