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A Two Judge Bench of the Hon’ble #SupremeCourt of India comprising of Justices Sanjay Kishan Kaul, M.M. Sundresh passed a Judgment dated 07-10-2021 in the case of V. Prabhakara v. Basavaraj K. (Dead) read more
A Two Judge Bench of the Hon’ble #SupremeCourt of India comprising of Justices Sanjay Kishan Kaul, M.M. Sundresh passed a Judgment dated 07-10-2021 in the case of V. Prabhakara v. Basavaraj K. (Dead) By Lr. & Anr. Civil Appeal No.1376-1377 of 2010 and held that an #exclusion of a #sibling shall not be a ground to suspect the genuineness of a #Will.
n the present case, the Suit Property belonged to one Ms Jessie Jayalakshmi (Deceased).
On 04-09-1985, a Registered Will (Exhibit 4) was executed in favour of one V Prabhakara (Appellant), by the Deceased, who had adopted the Appellant as her son. The Appellant’s brother, Mr. Vijay Kumar attested the Will.
The relationship between the Deceased and her husband (Respondent No. 1) got strained. On 26-03-1988, the Deceased and her husband obtained a divorce decree however; the Respondent No. 1 was permitted to reside in the Suit Property. The Respondent No. 1 refused to vacate the Suit Property, which is a residential house. The Appellant paid all the statutory dues for the Suit Property; a suit for declaration and for possession was filed in O.S. No. 51 of 1992 which was decreed on 11-12-2003.
Before the Trial Court
The Defendants/Respondents acknowledged the factum of execution of Exhibit P4, however they introduced another Exhibit D1, (an unregistered Will), allegedly executed by the Deceased in favour of the Respondent No.2, the son of Respondent No. 1. It is their case that Exhibit P4 has been replaced by Exhibit D1. It was also their contention that D1 spoke about the mortgage between the Deceased and her husband upon payment of Rs. 31,000 in the Deceased’s favour.
On 11-12-2003, the Trial Court decreed the Suit after it was satisfied that requirements of Section 63 of the Indian Succession Act, 1925 r/w Section 68 of the Indian Evidence Act, 1872 were complied with in order to prove Exhibit P4. Further, the Trial Court gave exhaustive reasoning while doubting the genuineness of Exhibit D1.
Before the High Court
Aggrieved, the Respondents approached the High Court invoking Section 96 of the Civil Procedure Code in RFA No. 692 of 2004 which was decided on 20-09-2006. The High Court reaffirmed the findings of the Trial Court with respect to the genuineness of Exhibit D1. However, in the absence of any specific pleading the High Court observed that there is no logic in the exclusion of the Appellant and PW2.
Incidentally, it has been held that evidence of PW3 would not be sufficient.
The High Court affirmed the reasons for doubting the genuineness of Exhibit D1 and the High Court dismissed the Suit and allowed the Appeal.
It was observed by the High Court that the exclusion of the Appellant’s siblings from the Will was not based on sound logic and that evidence by attesting witness was not sufficient enough to remove the suspicion around Exhibit P4.
To read more, please visit the link below:
#supremecourt #sibling #will
A Three Judge Bench of the Hon’ble #SupremeCourt of India comprising of Justices N.V. Ramana, Surya Kant and Hima Kohli passed a Judgment dated 04-10-2021 in the case of Vipan Kumar Dhir v. State of Punjab read more
A Three Judge Bench of the Hon’ble #SupremeCourt of India comprising of Justices N.V. Ramana, Surya Kant and Hima Kohli passed a Judgment dated 04-10-2021 in the case of Vipan Kumar Dhir v. State of Punjab and another Criminal Appeal Nos.11611162 of 2021 (Arising Out Of SLP (Crl.) Nos. 54045405 of 2021) and held that the conduct of the #Accused, Gravity of Offence, Societal Impact etc. are grounds to revoke #bail.
In the present case, the Appellant (hereinafter ‘Complainant’), who is the father of the Deceased had lodged an FIR on 02-10-2017 against 7 Accused persons, 4 of whom were members of the in-laws family of the Deceased including the Respondent No. 2, who is the mother-in-law of the Deceased (hereinafter Respondent-Accused). The Complainant alleged that his daughter married the son of the Respondent-Accused on 28072017. Thereafter, the Deceased had to face harassment and was physically tortured by her in-laws on the pretext of dowry demands. His daughter died an unnatural death under suspicious circumstances on 02102017.
On 30092017 the Deceased contacted her father and informed him that she had to face humiliation and abuse because of her failure to meet their dowry demands. The Complainant assured his daughter that he would try to amicably settle the matter. However, that could never happen as on 01-10-2017 poison was administered to the Deceased which led to her unfortunate demise the following morning.
Subsequently, an FIR was lodged and the Respondent-Accused moved an anticipatory bail application before the Sessions Court, however the same got rejected on 21-12-2017.
Dissatisfied, the Respondent-Accused No. 2 (mother-in-law) approached the High Court of Punjab and Haryana (High Court) for a similar relief, however the Petition was dismissed as withdrawn on 08-03-2018. Meanwhile, as she was not cooperating in the ongoing investigation, arrest warrants were issued by the SHO of the concerned Police Station against the Respondent-Accused. However, the arrest warrant could not be executed as the Respondent-Accused had been on the run and was declared an absconder on 23-04-2018 under the provision of Section 82 of the Code of Criminal Procedure (CrPC).
Thereafter, the Court granted anticipatory bail to her younger son on 22-10-2019. Hence, taking advantage of this situation, she filed two Petitions before the High Court for quashing the Order that declared her a ‘Proclaimed Offender’ and further sought the relief of anticipatory bail.
To read more, please visit the link below:
https://theindianlawyer.in/supreme-court-lays-down-grounds-for-revoking-bail/
#supremecourt #bail
Transgender people have their imprint in cultures worldwide since the early civilization times. In many Sumerian texts on the transgender priests known as gala were discovered. In the pre colonization read more
Transgender
people have their imprint in cultures worldwide since the early civilization
times. In many Sumerian texts on the transgender priests known as gala were
discovered. In the pre colonization era in Americas many indigenous cultures
where the third gender were given ceremonial importance. Indian history also
has diverse range of religious communities where the very concept of Hijras and
other Trangenders have been recognised in ancient history. The Hindu sacred
epic Ramayana and Mahabharata provides the reliable existence of the third
gender becoming the integral part of the ancient texts. Even assigned to highly
respected role as political advisors, administrator, spies as well as guardian
of the harems in royal courts of the Mughal empire in medieval India. Then why
still they are considered as social outcasts and denied basic necessities in
modern time. The for such condition, the society is directly or indirectly
responsible.[1]
The
name Transgender came from Greek meaning “keepers of the bed”. The WHO
defines the “transgender” (also refer as TG people) as an umbrella term which
differs from general presumption towards stereotypical gender norms set by
society. Transgender refers to those community whose internal sense of gender
is incongruent or different from the one assigned to them at birth. Individuals
whose recognition is something related to gender identity and appearance not physical
sex characteristics & sexual preferences. Many of them are even reluctant
to accept who they are due to shame, society morals influence, losing family
support etc. thus face legal, social as well as economic difficulties.
A
study says the estimated transgender diverse individuals varies between 0.1%
and 2% of the population depending on the inclusion criteria. In India, itself
the first official count for census of third gender was around 4.9 lakh in 2011.
But
still, being such major part of the population, the society so called
stereotypes not find them respected and deserving candidate to get treated as
normal human being. In India these people are struggling to survive and to take
stands for themselves. Although its true, things have turn around by the
introduction of government laws & policies. Its has become challenge for
them to break the long-lived stereotypes and gender-norm established by the
society. These community are still experiencing the challenges to overcome the
socio-economic culture and fight for their right in the constitution.
As
the wordings goes, one step forward, two steps back; eradication of deep-rooted
situation is not so easy. Amelioration of society mind-set, providing
sufficient access to education and work opportunity, access to public health
policies is some of the pressing matters needs to be address for the betterment
of the TG people. They are prone to discrimination,
social stigma and generally have a traumatic life. Forced to live in the
margins of society leads to number of violence committed against transgender.
The discrimination and harassment faced by them mostly is due to the backward
thinking of the people in society where third gender doesn’t fit in their
reserved societal norms. Hence, there are many hurdles for transgender
community to overcome with. Our constitution thrives to give equal equality rights
to all citizens of India.
An
American psychiatrist by name John F. Oliven was the one to coined the term “Transgender”
in 1965 in his reference work called Sexual Hygiene & Pathology. In
India, these individuals are addressed as hijras and aravanis by
society. Since before 1800s the transgenders facing inequality and
discrimination. The way how they appear or behave are often ridicule in the
society and even in school they are not consider as the member of the
community. The inequality stances do not end here, the extremeness of the level
can be deduced when put into dilemma which bathroom to use and in which ward,
they can get admitted for treatment. No doubt, the Hon’ble Court accepts their
legal rights and identity, still social and legal scenario is way more
different in reality.
HEALTH
CONCERNING PROBLEMS & DISCRIMINATION
Trans
people share similar health needs as the general population, but may have other
specific health related issues, such as gender-affirming hormone therapy and
surgery. The WHO/Europe acknowledge the fact that the trans community often
experience a disproportionately high burden of disease, including domains of
mental, sexual and reproductive health. The major barriers to health care
access transphobia & discrimination. Globally, the discrimination against
transgender people had given rise to the term “transphobia” – with dislike or
bias against transgender people.
These
communities are facing social exclusion in hospital forced to schedule their
early mornings check-ups -when there are few patients in the hospital. In
extreme biasness cases the doctors refused to even examine them causes distress
for T-gender people. The vilification of transgender in health care has in fact
became norm where the doctors exploit them. The patients also not make it easy
for them, as female cohorts not feel comfortable enough to share their ward
with transgender patient and male patients not make it any easier for them
harassing and annoying them for who they are. Thus, health care has not been
helpful in this cause, many incidents came forward where transgender people are
harassed by the doctors and ward in-charge, sticking out as major setback in
medical line.
Many
transgenders are facing gender dysmorphia an internal confliction between the
gender assigned at birth and gender later on they identify or adapt into. This can
cause emotional and mental distress. Apart from that while transitioning. the
intake of hormonal pills or drugs to achieve masculine or feminine effects
carry risks like low or high blood pressure, cancer, liver damage and heart
conditions. The much-needed awareness in society for eradication of the social
stigma and labelled as social out caste is required. There is utmost need for
social acceptance of transgender group.
Due
to lack of education, these individuals are forced to work as sex workers, thus
increasing the high-risk of HIV. Most of the sexually transmitted diseases can
be fatal and can affect people no matter what their sexual orientation is. Such
patients often experience hurdles receiving appropriate medical treatment due
to lack of access to healthcare and sometimes due to increased poverty among
this population. Many transgenders have strongly endorsed the demand of
separate wards in hospitals, which has been further directed by various HCs
which is still needed to be implemented by the state governments.
Alcohol
& drug abuse is common among the transgender community. Around 37% of 300
transwomen consumes alcohol once a week. Reasons for this are prevalence of
discrimination, depression and anxiety they face on every single steps. All
these also contribute to their suicidal nature that affects suicide ideation or
actual attempts.
The
society need to understand that identification as transgender is not mental health,
instead of medical treatment they should be treated psychiatrically. The World
Health Organization has also removed the so-called “gender identity disorder”
from its manual of diagnosis, a major win for transgender rights. Such
reclassification can be a catalyst for countries to recognise and adopt strong
proactive measures to eradicate the social stigma against transgenders.
EDUCATION
The
education is the tool to make one self-efficient and independent in process.
However, discrimination in education against Transgender students is increasing
more and more and it’s becoming challenging to deal with. Being deprived of
social and cultural participation they have restricted access to education and
employment opportunities. Most of the transgender, dropout of school because of
the harassment and discrimination they face. The general survey conveys that
around 50 to 60 percent of transgenders never even attend schools under fear of
discrimination and apprehension of being ridiculed.
Article
21-A confers rights to education to transgenders persons yet the pragmatic
aspects tell different story. In many
cases, they are even forced to drop out by their own parents forcing them to
beg on traffic signals. Its topic of worry, that in 21st century the
families avoid to accept their child is transgender and ignore him/her. Furthermore,
upon facing exclusion from both school and family they are forced to take low
income or undignified work for livelihood like badhaias, sex workers and
begging. Being pushed to survive through begging and dancing is again looked down
by the dichotomous attitude of society.
WORKPLACE
ENVIRONMENT
The
workplace for the transgenders has number of issues and they experience ousted
in the such atmosphere. The reported rates of harassment and discrimination in
the workplace claimed to have directly harassment or mistreatment at work. At
many workplaces they are restricted to use restrooms as not being consistent
with gender identity or segregate them to use gender-neutral bathroom sometimes
make them feel scare for their physical safety contributing to the
discriminating behaviours. Many of the transgender feel pressure to obscure
their identity or transition potentially limiting their career progress. These
makes the matter worse as many transgenders employees faces anxiety, depression
issues. There is need of stringent anti-discrimination policies at all
workplace in the public and private sector and establish these policies should
be made transgender inclusive to ensure there is no misuse of the benefits
granted to them.
EVOLUTION
IN TRANSGENDER RIGHTS
While
in other countries, the awareness social movements were flourishing until
recently the colonial law of India has criminalized the homosexuality under Section
377 of the IPC. It was the time of 1990s where India did see important
socio-political shifts as an array of human rights programs and intervention
led by gender minority rights or organization demands the gender equality
rights. The government in 1994 gave the right of voting to transgenders. Despite
this, their community got its legalized rights only recently. The decade of
2000s, brought the wind of change through HIV awareness programs increasing the
engagement of gender and sexual minority-led organizations, channelling the
social movements demanding social change and legal privileges.
In
April 2008, the first state recognized board The Transgender Welfare Board was
set up in Tamil Nadu the model of progressive development.[2] It
objective mainly addresses the social protection issues suffered by TG people
on daily life basis. On the historical day of April 15, 2014, the Supreme Court
of India passed judgement recognising a third gender a neither male nor female,
entitled to the reservation quota in education and jobs opportunities.[3]
Whereas in 2018 SC unanimously decriminalises Section 377 of the IPC which
criminalises the consensual unnatural sex found to be against the right to
equality.[4]
The minority community have even got legal protections through sanction of the
Transgender Protection of Rights Bill by the Parliament in 2019. Herein, the
transgender people are allowed to change their legal gender post-sex
reassignment surgery under legislation passed in 2019.
Recently,
the ministry of Social Justice and Empowerment has launched the National Portal
for Transgender Persons in consonance with the Transgender Persons (Protection
of Rights) Rules, 2020 making it easy to apply for their identity card and
certificates. The government has also taken stringent action against any kind
of violence against transgender persons which are punishable with imprisonment
of up to 2 years. Under the provisions of the Transgender Bill, 2019 the
Minister of Social Justice and Empowerment, has constituted the National
Council for Transgender Person as advisory body for policy making affecting Transgenders
community.
Unfortunately,
the significance of the trans pride has not been considered in the bill. The
new legislation bill undoes all the progress made by the transgender community over
the past few years. The bill goes against the right to dignity and bodily
autonomy privilege to trans people.[5] In
layman word, getting an ID is tedious entails screening process which totally
violates the human rights. It has also criminalized the act of begging without
giving any alternatives solutions of sustenance to the community. Its is just
bill prepared in haste undermining the rights of the transgenders individuals
it seeks to protect.
The
government need to re-evaluate their policies concerning trans-people assuring
the social protection, providing access to basic amenities, housing, and health
facilities and provisions for education and employment. The Karnataka State
Policy for Transgenders, 2017 addresses these issues providing schemes and
programmes created for its efficient working. The Policy however is stepping
stones in this arena which should be act as a catalyst aspiring other state
governments.
CONCLUSION
Its
long run to the full inclusion of TG people in society, government need to
implement stigma and discrimination reduction measures to ensure they are not victimized
neither at school nor by society itself. The government-run facilities should
be made available for the Transgender Community in healthcare areas, employment
status and their upliftment in social status. Its upto government to bring in
policy to ensure they are not discriminate against they could enjoy equal
rights like any other citizens of India.
It
is time we stop this century old stereotypes, working & helping those
transgenders legally recognising and passing bills for their betterment in society
providing equal opportunities at all spheres. We as one can achieve and realise
this dream of “let live and let one live”.
[1] Historical
Evolution of Transgenders Community in India by Michelraj. M ISSN No: 2230-7850
[2] Journal of
Social Work Education and Practice [ISSN: 2456-2068]
[3] National Legal Services
Authority v. Union of India W.P. (civil) No. 604 of 2013
[4] Navtej Singh Johar &
Ors. v. Union of India (AIR 2018 SC 4321)
[5] The
Transgender Persons (Protection of Rights) Bill, 2019
RAPE AGAINST MEN BY WOMEN – NO NEUTRAL LAW IN INDIARape is the fourth most serious crime in India and a serious problem worldwide. It is generally a crime committed by men against women, but have we ever read more
RAPE AGAINST MEN BY WOMEN – NO NEUTRAL LAW IN INDIA
Rape
is the fourth most serious crime in India and a serious problem worldwide. It is generally a crime committed by
men against women, but have we
ever thought about it vice-versa? Historically, Rape was regarded as a crime
committed by only men against women, but over time, it has been observed that
members of other genders, such as men and transgender communities, are also victims
of this crime. Anyone, regardless of age, gender or sexual relationship, can be
raped. Although there are many such cases, most of them have not been reported
because people fear that the report will raise questions about its
effectiveness. Most cases of Rape against people other than women have not been
reported. People have realized this, but they need to understand this type of
crime, as it is necessary to maintain a proper legal system and get rid of this
dreadful crime.
First
of all, it is necessary to admit that the victims and offenders of Rape can be
of any gender, and this crime can happen anywhere, such as in schools, offices,
prisons, workplaces, schools, etc. Investigations on male rape victims did not
begin until after the 1980s, and it mainly targeted the sexual harassment of
minors. Even in the 21st century, it is difficult for male rape victims to
report sexual abuse because we live in a society where if a man is sexually
abused, people believe that he can protect himself by having a strong male
power. Therefore, most people worry that reporting sexual abuse will raise
questions about their sexual abilities, or a thought arises that if a man rapes
them, they will be considered gay. Some people share their experiences, but mostly,
the victims worry about not reporting their Rape to the public. A study by the
US Centers for Disease Control and Prevention (Eastern Europe, USA) found that,
according to reports, 1 in 17 people are forced to enter the house at a certain
life stage. In a recent case in Mumbai, India, an RPF agent was accused of
attempting to rape or commit a crime while still alive, but this patriarchal
society does not believe that men can also be raped.
In
most of these cases, consent is not taken. According to psychologist Sarah
Khan, it is reported that less than one in ten male rapists are victims of male
rape without any support and services, and there is a lack of a proper system
of law against such crimes.
Indian
Laws on Rape
Section
375 of the Indian Criminal Code (IPC) defines Rape as sexual intercourse with a
woman against her will, without her consent, by coercion, misrepresentation or
fraud or at a time when she has been intoxicated or duped or is of unsound
mental health and in any case if she is under 18 years of age. A
man is considered to rape when the following conditions are met: -
·
He enters a woman's vagina, mouth, urethra or
anus in any way or forces her to do so on him or others.
·
Or insert or press any object or body part
other than the penis into a woman's vagina, urethra or anus to any extent;
·
Or manipulates any part of a woman's body to
force her or others to enter into her vagina, urethra, the anus or any part of
the body;
·
Or put his mouth on the woman's vagina, anus,
urethra, or force her to do this to him or another person.
According
to the above definition, under Section 375 of the Indian Penal Code, it can be
assumed that men always confront women. When a woman forces a man to have sex
with her, it is not Rape but a perpetrator. Thus, it is an assumed fact that a
man is considered to rape a woman. However, it does not consider the man's
consent regarding the sexual behaviour of the woman and always considers the
woman to be the victim. In many cases, it is seen that a man False Rapes a
woman to take revenge or commit an illegal act.
This
shows that India has no specific laws for male rape victims; although Section
377 of the IPC that states that, whoever voluntarily has carnal intercourse
against the order of nature with any man, woman or animal, shall be punished, is
an exception to this, it is not sufficient to safeguard the rights of men in
India.
The
Protection of Children from Sexual Offences Act 2012 (POCSO Act) criminalizes
sexual assault on boys, but there are no such regulations for adult men. Sexual
abuse of adult men is treated differently from that of adult women. The reason
for this trend is unclear. India may have regulations on the Rape of boys, but it
should also have regulations on the Rape of adult men. The conservative view is
that only men who use their power to exploit women make men vulnerable. Sexual
assaults and crimes against women and children do not seem to have the sense of
equality guaranteed by Article 14 of the Indian Constitution. All laws must be
gender-neutral, so any strongest law designed to protect women must also
consider sexual crimes against men and other genders.
Criticisms
and pitfalls of criminal jurisprudence
The lack of gender neutrality may be
one of the most important features of Indian rape laws. Indian law must be
developed according to the needs and requirements of its subject. History has
shown that some laws that focus on women's safety and well-being have been abused,
prompting legislators and courts to intervene and correct mistakes. The promise
of equality and equal protection provided for in the law contained in Article
14 of the Constitution seems to have lost contact with our legislators in
drafting laws on sexual harassment. The judiciary does not intend to
discriminate against male victims of sexual harassment, but unfortunately, men
are rarely seen as victims on this issue. Sexual harassment laws that are not
related to gender take time and must be passed by the government to eliminate
unintentional gender discrimination and provide equal protection. However, the Supreme Court rejected the
gender-neutral law, stating a valid
classification for a crime committed by a woman on a man. CJI Dipak Misra
stated that the court is not saying that a woman cannot rape a man, but those
circumstances would come under different offences under IPC. A plea similar to
this was made in the Supreme Court earlier this year that challenged the
constitutional validity of adultery laws in the country that would only punish
a married man having an extra-marital sexual relationship with another married
woman. A bench comprising Justices A M
Khanwilkar and D Y Chandrachud and Chief Justice Dipak Misra took a prima facie
view that although the criminal law focuses on "gender neutrality",
this concept was absent under Section 497 of the Indian Penal Code, which
deals with the offence of adultery and therefore, referred this matter to a
larger bench.
Conclusion
The
penalty for any crime should be as severe as committed and should not be
limited to any specific category. It should apply to all citizens, regardless
of their gender. Pain is unparalleled, and everyone is the same. Whether male,
female or transgender, survivors suffer the same physical, mental, and
emotional distress. Gender terms indicate that a man cannot report a woman's
sexual assault, because according to the definition of Rape, it can only be
committed by a man. A person can file a lawsuit under the influence of violence
or beating but not Rape. Even if the action is the same, the punishment for the
person is not Rape. India is adapting and making changes to make itself a
successful country. So why do we fall behind when the question of raping a man
comes? The United Kingdom has gender-neutral laws. Therefore Indian legal
system and its citizens must also recognize that even women can rape men. The
law should also recognize men as victims and not just criminals. It is
necessary to bring awareness about male sexual harassment, and the government
and society must change the social stereotypes and hear the pain of male
victims.
*****
A Three Judge Bench of the Hon’ble #SupremeCourt of India comprising of Justices N.V. Ramana, Surya Kant and A.S. Bopanna passed a #Judgment dated 23-09-2021 in the case of Triyambak S. Hegde Vs. Sripad read more
A Three Judge Bench of the Hon’ble #SupremeCourt of India comprising of Justices N.V. Ramana, Surya Kant and A.S. Bopanna passed a #Judgment dated 23-09-2021 in the case of Triyambak S. Hegde Vs. Sripad Criminal Appeal Nos.849850 of 2011 and reiterated that when a person receives a #cheque from a person for discharge of debt or liability and the cheque is #dishonoured in terms of Section 138 of the #NegotiableInstruments Act, 1881 (Act), then the #presumption shall remain in favor of the holder of the cheque, unless the contrary is proved by the accused, under Section 139 of the Act.
Section 139 of the Act is reproduced below:
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, of any debt or other liability.
In the present case, the Respondent, Mr. Sripad approached the Appellant, Mr. Triyambak S. Hegde and informed him that he was facing a financial crunch because of which he intends to sell the house situated in Sirsi town. The Appellant agreed to purchase the same for the negotiated total sale consideration of Rs. 4,00,000/. An Agreement dated 06-06-1996 was executed by the Parties and the Respondent received an advance amount of Rs. 3,50,000/. Thereafter, the Appellant made some queries and discovered that the house was registered in the name of the father of the Respondent and that the Respondent did not have the authority to sell the same. Subsequently, the Appellant demanded the return of advance payment of Rs. 3,50,000/. The Respondent did not pay the entire amount, but issued a Cheque dated 17-05-1998 for the sum of Rs. 1,50,000/ (Cheque). On 20-05-1998, the Appellant presented the Cheque in a Bank for realisation, but the same got dishonoured with the endorsement of ‘insufficient funds’.
A Notice was then issued by the Appellant to the Respondent, thereby, informing the latter about the Cheque being dishonoured and further demanded payment of the Cheque amount. The Respondent received the Notice, but did not respond to the same. Subsequently, on 14-07-1998, the Appellant filed a Complaint under Section 200 of the Code of Criminal Procedure (CrPC) in the Court of the Judicial Magistrate, First Class (JMFC) at Sirsi which was registered as Criminal Case No.790/2000. The Complaint filed by the Appellant sought to prosecute the Respondent under Section 138 of the Act. The JMFC passed a Judgment dated 09-06-2005 and convicted the Respondent for dishonour of Cheque under Section 138 of the Act and sentenced the Respondent to undergo simple imprisonment for six months and to pay fine of Rs. 2,00,000/.
However, as the Respondent committed default in payment of fine amount, he was ordered to undergo simple imprisonment for a further period of three months. Out of the total fine amount the Respondent was asked to pay Rs.1,95,000/ to the Appellant as compensation.
Aggrieved by the Order dated 09-06-2005, the Respondent filed an Appeal before the District and Sessions Judge, Uttara Kannada, Karwar in Criminal Appeal No.57/2005. On the other hand, the Appellant also filed a Criminal Appeal No. 65/2005 before the District and Sessions Judge seeking that the compensation of Rs. 1,95,000/ was insufficient, hence, the sentence imposed by JMFC should be enhanced. However, vide Judgments dated 22-04-2006, both the Appeals were dismissed.
Thereafter, the Respondent filed a Criminal Revision Petition No.1282/2006 and the Appellant filed the connected Revision Petition No.1481/2006 before the High Court of Karnataka (High Court). The Single Judge vide Order dated 01-12-2009 allowed the Revision Petition filed by the Respondent and set aside the conviction Order passed by the Learned JMFC.
To read more, please visit the link below:
https://theindianlawyer.in/supreme-court-upholds-conviction-of-accused-for-dishonour-of-cheque/
#supremecourt #cheque #dishonour
A Three Judge Bench of the Hon’ble #SupremeCourt of India in the case of M/s Magadh Sugar & Energy Ltd. vs. The State of Bihar & Ors. (Civil Appeal No. 5728/2021), vide its #Judgment dated 25-09-2021 read more
A Three Judge Bench of the Hon’ble #SupremeCourt of India in the case of M/s Magadh Sugar & Energy Ltd. vs. The State of Bihar & Ors. (Civil Appeal No. 5728/2021), vide its #Judgment dated 25-09-2021 held that #Writ Jurisdiction of a #HighCourt can be invoked on the ground that the #dispute between the parties is #factual in nature.
M/s Magadh Sugar & Energy Ltd. (Appellant) is a sugar mill Company in Bihar. It is engaged in the business of manufacture and sale of white crystal sugar. The waste of sugarcane produced in the process of manufacturing sugar is used for the production of electricity for its own consumption and the surplus energy is supplied to Bihar State Electricity Board (‘BSEB’).
The Bihar Electricity Duty, Act 1948 (Act) empowers the State Government (Respondent) vide Section 3(1) to levy electricity duty based on the units of energy consumed or sold, excluding the losses of energy in transmission and transformation, at the rates specified by the first Respondent, i.e. the State of Bihar.
In pursuance of its power under Section 3(1) of the Act, the Respondent issued a Notification dated 21.10.2002 which stipulated that the rate of duty applicable on the consumption or sale of electricity would be fixed at 6% of the value of energy consumed or sold for any purpose other than irrigation. The said 2002 Notification was amended by a subsequent Notification dated 04.03.2005, which provided that the rate of duty to be levied on consumption of electrical energy generated by captive power plants would be 6% of the value of energy, which shall be equivalent to the energy tariff as fixed by BSEB.
The Appellant challenged the Notifications dated 21.10.2002 and 04.03.2005 before the Patna High Court by filing a Writ Petition. The High Court by its Judgment dated 16.09.2009 struck down the Notifications and Section 3 (1) of the Act on the ground that there were no guidelines in the Act or the Notifications for construing the expression ‘value of energy’.
Aggrieved by the High Court Judgment, the Respondent-State filed a Special Leave Petition before the Supreme Court. While the matter was pending before the Apex Court, the Respondent amended the Act through the Bihar Finance Act 2012 with retrospective effect from 17.10.2002 for defining the term ‘value of energy’. The Appellant challenged the said Amendment by invoking the Writ Jurisdiction of the High Court.
To read more, please visit the link below:
#supremecourt #disputes #writ #highcourt
The #SupremeCourt has in a recent case of Rajendra Bajoria and Others vs Hemant Kumar Jalan and Others, Civil Appeal Nos. 5819-5822 of 2021 passed a #Judgment dated 21-09-2021 and decided upon the rights read more
The #SupremeCourt has in a recent case of Rajendra Bajoria and Others vs Hemant Kumar Jalan and Others, Civil Appeal Nos. 5819-5822 of 2021 passed a #Judgment dated 21-09-2021 and decided upon the rights of #legalheirs of the original #partners of a #partnershipfirm in respect of the #assets and #properties of the firm.
In this case, a partnership firm named ‘Soorajmull Nagarmull’ (Firm) was constituted by way of a Partnership Deed dated 06-12-1943. However, none of the Partners of the Firm are alive today (Deceased Partners). The Plaintiffs and the Defendants in this case are the legal heirs of the Deceased Partners of the Firm.
The Plaintiffs filed a Civil Suit bearing C.S. No. 79 of 2017 before the Calcutta High Court seeking (a) a decree for declaration that both the Plaintiffs and the Defendants are entitled to the assets and properties of the Firm (Assets) as they are the heirs of the Deceased Partners; (b) a decree for perpetual injunction to restrain the Defendants from representing as the authorised representative of the Firm and from receiving monies on behalf of the Firm; (c) dissolution of Firm; (d) full accounts of the Firm for the purpose of dissolution of the Firm, etc. It is the Plaintiff’s case that despite the demise of the Deceased Partners of the Firm, the Defendants are carrying on the business and representing the Firm to the exclusion of the Plaintiffs and that the Defendants are siphoning off funds of the Firm without paying the Plaintiffs their share of profits in the Firm.
Thereafter, the Defendants filed two Applications seeking dismissal of the Civil Suit. However, the Single Bench of the High Court dismissed the said Applications and allowed the Civil Suit, vide Order dated 22-09-2017.
Being aggrieved, the Defendants filed Appeals before the Division Bench of the High Court, which passed an Order dated 14-09-2018 and allowed the Appeals and rejected the Plaint filed in the above Civil Suit C.S. No. 79 of 2017.
Aggrieved, the Plaintiffs filed Appeals before the Supreme Court (Appellants-Plaintiffs), thereby, challenging the Order dated 14-09-2018 passed by the Division Bench of the High Court.
The Apex Court made the following observations in this case:
1) That as per Sections 39-44
of the Partnership Act 1932, a partnership firm may be dissolved by the
partner(s) of the firm either by mutual consent or upon expiry of the term of
the firm, etc or the firm may be dissolved by the court upon filing of a suit
by a partner.
To read more, please visit the link below:
https://theindianlawyer.in/supreme-court-decides-upon-rights-of-legal-heirs-of-deceased-partners-in-the-partnership-firm-properties/
#supremecourt #legalheirs #deceasedpartners #partnershipfirm
FILING OF COMPLAINTS AGAINST BIASED JUDGES - PROCEDURE Complaint in case of a judge cannot be about a poor judgment or order. For that, there is a facility of correction, analysis, or appeal read more
FILING OF COMPLAINTS AGAINST BIASED JUDGES - PROCEDURE
Complaint
in case of a judge cannot be about a poor judgment or order. For that,
there is a facility of correction, analysis, or appeal to the higher Judiciary.
So, in what circumstances can people complain against judges? Plausible bad or
irresponsible behaviour of judge include being impolite to other people or
having bad body language, actions or behaviour towards the other person
It
can be when a judge is making natural or inconsiderate behaviour in making
irrelevant or insensitive statements or comments which doesn’t go by rules of
what judge is expected to do in line with judicial duty. Here it
is vital to add that though India has taken over many provisions and procedural
laws from British, one won’t be able to find such clear and complete
information on any formal website within India.
Where
and to whom to contact for sending of complaint?
Our past
master of various courts has been making complaints as per jurisdiction below:
Ø Subordinate
Judiciary: Registrar General of the concerned High
Court, District administrative judge
Ø HC judges:
Chief Justice of the concerned High Court
Ø SC judges:
Chief Justice of India
Ø Chief
Justice of HC: Chief Justice of India
For
official and formal information: The citizen’s charter PDF file obtainable
from the Department of Justice webpage provides various contact
information for grievances. The person could contact them over phone/email
to find out directly how and where to file a complaint about a particular
jurisdiction/court http://doj.gov.in/citizen-charter
Vision: Easing management
of Justice that makes sure easy access and well-timed delivery of Justice to
all.
Mission: Making
sure adequacy of courts and judges, including servicing of appointment of
Judges to the higher judiciary, modernization of courts and procedures,
policies for judicial reforms and Legal aid to the poor for improved justice
delivery.
The Department
of Justice Guidelines has the vital information about grievances against Judiciary
which has been extracted and given below:
Ø Department
of Justice (DOJ) gets a large number of grievances from citizens through the online
CPGRAMS platform and on the email of the officers. DoJ gets issues from
Presidents Secretariat, Vice Presidents Secretariat, PMO, Department of
Administrative Reforms & Public Grievances/other Ministries/Departments
& also directly. While almost all the grievances are regarding Judiciary,
grievances in concern to other Ministries or Departments in the Central
Government and pertaining to the State Governments or the Union Territories are
also addressed to them. The grievances related to Judiciary are addressed by
the Department of Justice, and the grievances related to the other
Departments/Ministries/State Governments/UTs are forwarded to the offices
concerned. The guidelines mentioned below related to the disposal of grievances
in the Department of Justice are transmitted for information/guidance/benefit
of grievance owners.
Ø Grievances
regarding the Judiciary are redirected to the Secretary-General of the Supreme
Court of India or the Registrar General of the concerned High Court,
for further action, as appropriate.
Ø Any
Grievance regarding the verdicts of the Courts is not handled as
a grievance. This kind
of grievance holder is suggested to take the proper
legal remedy in the appropriate Court of Law as per rules. Grievances
regarding the verdicts of the Courts will be taken by the Department of
Justice. Grievances concerned with the procedure of the Court or cases mainly
judicial in nature can be handled through the Court of Law only. Such
grievances will be handled by the Department of Justice.
Ø Grievances
in concern with the Judges of SC are redirected to the Chief Justice of India,
and grievances concerned with Judges of the High Courts are forwarded to CJ of
the connected High Courts for appropriate action. (As the Judiciary is
self-sufficient,
Government does not ask for steps taken, nor
sends reminders to them. Grievance holders are suggested to get information
from the concerned Courts directly in this matter.
Ø Disposal
of the pending cases in courts is within the sector of the Judiciary, which is a
self-sufficient organ of the State under the Constitution of India. The Government
of India does not obstruct the working of the Judiciary/proceedings in courts
as pendency of a Court Case is a subjudice matter which is under consideration
of the Court.
Ø In a matter
of any grievance relating to delay in judgement or not a fair judgement or
miscarriage of Justice, the petitioner is suggested to go for judicial remedy
by making an appeal or any other events
before the appropriate Court of Law within the
allotted time limit.
Ø According
to the guidelines made by the SC of India regarding the grievances/complaints
against members of the Subordinate Judiciary, it is seen that this type of grievances
is to be sent along with a duly promised affidavit and validated material to prove
the claims made therein. Such grievances, along with a sworn affidavit, should be
sent directly to the Registrar General of the concerned High Court.
Ø Grievances
redirected by the Department of Justice are seen and examined by the Judiciary
as per their own system and the system or procedure to deal with grievances that
are generally not shared. In such acts, the Department of Justice is not in place
to inform the outcome to grievance holders.
Ø Grievance
owners are suggested to lodge their grievances on the Public Grievance Portal
cpgrams-darpg@nic.in only. As the Government has introduced the platform to get
grievances online, grievances received by the Department of Justice on the
email I. Ds of officers will not be accepted.
Ø So,
complaints can either be directly sent to the High Court if relevant or
to cpgrams-darpg@nic.in, and no complaints
should be sent to individual officers’ email ids.
The person
having grievance are suggested to send the grievances relating to the Supreme
Court, High Courts directly to them on the below-written mails in order to
dispose of their grievances in a fast manner:
High
Court name and email ID
Ø Supreme
Court of India supremecourt@nic.in
Ø High
Court of
Allahabad rg@allahabadhighcourt.in
Ø High
Court of
Tripura thc.vigilance@gmail.com
Ø High
Court of Guwahati regv.ghc@gmail.com
Ø High
Court of
Kerala
rsjhc.ker@nic.in
Ø High Court of Jharkhand admn.misc.jhcranchi@gmail.com
Ø High Court of Uttarakhand rg.ukhc@indiancourts.nic.in
Ø High Court of Meghalaya
rg.mglhc@indiancourts.nic.in
Ø High
Court of
Delhi
aojestablishment2.dhc@nic.in
Ø Bombay
High
Court
rgsid-bhc@nic.in
Ø Sikkim
High
Court cpc-sik@nic.in
Ø Punjab
& Haryana High Court reg.vig-phc@indianjudiciary.gov.in
Ø HP High
Court
arvindm@aij.gov.in
Ø High
Court of Chhattisgarh vv-hc.cg@gov.in
Ø Andhra
Pradesh High Court svsrmoorty@gmail.com
Ø Gujarat
High
Court rg-hc-guj@nic.in
Ø Rajasthan
High
Court
regadmn-rhc-rj@gov.in rajinder.tuteja@aij.gov.in
Ø Jammu & Kashmir High
Court myakhoon@gmail.com
Ø Karnataka
High
Court
grievance@hck.gov.in
Ø Patna
High
Court phcgrievance-bih@gov.in
Ø Madhya Pradesh
High Court usdey15@gmail.com
Ø Madras
High
Court regrvigil.tn@nic.in
Ø Manipur
High
Court
nd.grievance-hcm@gov.in
Ø Orissa
High Court:
rg.orihc@indiancourts.nic.in
Ø Calcutta
High
Court
cpc-cal@indianjudiciary.gov.in
Ø NALSA nalsa-dla@nic.in
Court
Precedent
In the year 1995 judgment in C Ravichandran Iyer case, the Court
had held that if members of the bar had any material about “misconduct” or “bad
conduct” of a judge, they should meet the high court chief justice concerned or the Chief Justice of
India to apprise them of the material against the judge. The apex court stated
that they should wait for a reasonable time period to permit the administrative
head of the High Court or the Supreme Court to take appropriate steps or
action.
In the S Ramaswami 1992 judgment by a five-judge SC bench, headed by
Justice J S Verma, it had said that the issue of whether
allegations against a sitting judge warranted an inquiry, was to be seen by
Parliament on permitting a motion for removal of the judge moved by the requisite
number of MPs. However, in the inquiry, the sitting judge should have full
right of defence.
In the case of Sahara Birla Paper, it was seen that the Supreme Court
had given a biased verdict in favour of the Government. An NGO had filed the
petition, consisting of the allegations against the Government. The Court had
set aside the petition and ended the complete issue by stating the lack of
evidence to make the offence in question. Instead of asking the petitioner to
avail the remedies, the Court adjudicated the matter by declaring the diary
entries inadmissible. In this case, Biasness can be seen through the actions of
the judge by ignoring the evidence, as he had declared the diary inadmissible
and had given the verdict without considering the evidence.
Conclusion
The
predisposition of a judge, a legal attorney, or anyone who is related to the
judicial matters, either against or in favour of one of the parties, is known
as judicially biased. A judicial decision is supposed to be free from all kinds
of biasness to be fair and just in its real sense. Judicial biasness can be
pointed out in decision-making, appointments, or remarks made. Biasness is not theoretically encouraged by
the judiciary. Having a just and fair judicial system is difficult but not
impossible, and a country must take all the required steps in order to ensure
that its judicial system is free from all forms of unfair practices and
malicious intentions.
*****
The Bench of Hon’ble #SupremeCourt of India in the case of Arcelor Mittal Nippon Steel India Ltd. vs Essar Bulk Terminal Ltd. [Civil Appeal No. 5700/2021], vide its Judgment dated 14-09-2021 held that read more
The Bench of Hon’ble #SupremeCourt of India in the case of Arcelor Mittal Nippon Steel India Ltd. vs Essar Bulk Terminal Ltd. [Civil Appeal No. 5700/2021], vide its Judgment dated 14-09-2021 held that the Court can continue to decide an application under Section 9 of the Arbitration Act, 1996 (#ArbitrationAct) for #interimmeasures of protection, that has already been taken up for consideration by the court, prior to constitution of #arbitraltribunal.
The Appellant, Arcelor Mittal Nippon Steel India Ltd and the Respondent, Essar Bulk Terminal Ltd. entered into an agreement for Cargo Handling at Hazira Port (Cargo Handling Agreement). The said Cargo Handling Agreement was amended from time to time. Owing to certain disputes that arose under the said Cargo Handling Agreement, the Appellant invoked the arbitration clause and issued Notice of Arbitration upon the Respondent on 22-11-2020. The Respondent did not reply to the said Notice.
Thereafter, the Appellant filed an Application before the High Court of Gujarat (High Court) for appointment of an Arbitral Tribunal under Section 11 of the Arbitration Act. Later, the Respondent replied to the Notice of Arbitration on 30-12-2020 and contended that the disputes between the Parties were not arbitrable.
However, the High Court appointed a three-member Arbitral Tribunal, comprising of three retired Judges of the High Court, to adjudicate the disputes between the Appellant and the Respondent, under Section 11(6) of the Arbitration Act vide its Order dated 09-07-2021.
Thereafter, both the Appellant and the Respondent filed Applications before the Commercial Court and the 12th Additional District Judge, District and Sessions Court at Surat (Commercial Court) under Section 9 of the Arbitration Act seeking interim measures of protection from the Court during ongoing arbitration proceedings.
As the Arbitral Tribunal was constituted, the Appellant filed an Application seeking transfer of arbitration proceedings from Commercial Court to the Arbitral Tribunal constituted by the High Court. The Commercial Court dismissed the said Application filed by the Appellant, vide its Order dated 16-07-2021 on the ground that it had already concluded the proceedings before it and reserved the matter for Orders.
The Appellant filed a Civil Application No.10492 of 2021 in the High Court under Article 227 of the Constitution of India challenging the Order dated 16-07-2021 passed by the Commercial Court. The High Court, vide its Order dated 17-08-2021 held that the Commercial Court has the power to consider whether the remedy under Section 17 of the Arbitration Act is inefficacious and pass necessary orders under Section 9 of the said Arbitration Act.
To read more, please visit the link below:
https://theindianlawyer.in/supreme-court-reiterates-circumstances-when-a-court-can-decide-upon-interim-relief-under-arbitration-act/
#supremecourt #arbitration #interimrelief #lawyered
We live in a fast-paced world where people are too much focused on one thing or the other, to the extent that often they don’t even know about their basic rights as humans. For many of us, there is essentially read more
Many people aren’t aware of the fact that they even have rights as potential job applicants. They have the right to be free from discrimination and discriminating questions based on their age, gender, religion, sexual orientation, ethnicity, nationality, etc.
For instance, if you are on a job interview, your employee rights protect and safeguard you from being asked biased and discriminating questions during the entire hiring process. Even if you are physically handicapped, your potential employer has no right to discriminate against you or ask you prejudiced questions.
You might not be aware that many potential employers don’t always hand out contracts, and not all employees ask about it. Legally, depending on which state you are living in, your potential employers might not be bound to provide you with an employment contract immediately.
However, within two months of your employment, you should ideally receive a contract or a written proof that you are working with the company and receiving a certain amount of salary, along with the terms and conditions of the employment.
Ideally, your contract should mention the following: your designation/ job title, the required working hours, the monthly salary, the number of monthly/ annual sick leaves you are entitled to, the paid holidays that you are entitled to, and the minimum notice period.
As an employee, you have the right to have appropriate working hours and suitable breaks, which means that you have the legal right to have a 20-minutes break period to eat, drink, stretch, and rejuvenate. If you have a 9-hours work shift, you are also legally allowed to have a 2-times 20-minutes break each day. Many potential employees aren’t aware that according to employment laws, no employee is supposed to work more than an average of 48 hours every week unless their employment contract states so and they agree to it in written form.
This employment right is particularly important for construction site workers or employees who work for underground mining companies. Besides, employees have the legal right to protect their health and work in a clean and protective workplace that allows them to practice safety, hygiene, and essential health measurements.
That said, employees have the right to work in a safe and clean environment that doesn’t sabotage their physical, mental, and emotional wellbeing. In the face of the pandemic, employees have the right to work from home and be provided with s Covid-19 safety kit.
Employees also have the right to work part-time if they are fixed-term employees. While this aspect might differ from one company to another, the rules for holiday entitlements might be slightly different for part-time workers than full-time workers.
Suppose you have recently landed a new job. We recommend getting in touch with a professional law expert or an employment lawyer who can help you understand your rights and go through the terms and conditions of your contract. The employment lawyer can also help you solve any potential issues that you might encounter at your workplace.
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4. SoOLEGAL will remit the fees (without any interest) to its Registered User/ Consultant every 15 (fifteen) days. If there is any discrepancy in such payment, it should be reported to Accounts Head of SoOLEGAL (accounts@soolegal.com) with all relevant account statement within fifteen days from receipt of that last cycle payment. Any discrepancy will be addressed in the next fifteen days cycle. If any discrepancy is not reported within 15 days of receipt of payment, such payment shall be deemed accepted and SoOLEGAL shall not entertain any such reports thereafter.
5. Any Registered User/ Consultant wishes to discontinue with this, such Registered User/ Consultant shall send email to SoOLEGAL and such account will be closed and all credits will be refunded to such Registered User/ Consultant after deducation of all taxes and applicable fees within 30 days. Other than as described in the Fulfilment by SoOLEGAL Terms & Conditions (if applicable to you), for the SoOLEGAL Site for which you register or use the Transacting on SoOLEGAL Service, you will: (a) source, fulfil and transact with your Documents/ Advices, in each case in accordance with the terms of the applicable Order Information, these Transaction Terms & Conditions, and all terms provided by you and displayed on the SoOLEGAL Site at the time of the order and be solely responsible for and bear all risk for such activities; (a) not cancel any of Your Transactions except as may be permitted pursuant to your Terms & Conditions appearing on the SoOLEGAL Site at the time of the applicable order (which Terms & Conditions will be in accordance with Transaction Terms & Conditions) or as may be required Transaction Terms & Conditions per the terms laid in this Documents/ Advice; in each case as requested by us using the processes designated by us, and we may make any of this information publicly available notwithstanding any other provision of the Terms mentioned herein, ensure that you are the REGISTERED USER of all Documents/ Advices made available for listing for Transaction hereunder; identify yourself as the REGISTERED USER of the Documents/ Advices on all downloads or other information included with Your Documents/ Advices and as the Person to which a customer may return the applicable Documents/ Advices; and
S-2.2 Returns and Refunds. For all of Your Documents/ Advices that are not fulfilled using Fulfilment by SoOLEGAL, you will accept and process returns, refunds and adjustments in accordance with these Transaction Terms & Conditions and the SoOLEGAL Refund Policies published at the time of the applicable order, and we may inform customers that these policies apply to Your Documents/ Advices. You will determine and calculate the amount of all refunds and adjustments (including any taxes, shipping of any hard copy and handling or other charges) or other amounts to be paid by you to customers in connection with Your Transactions, using a functionality we enable for Your Account. This functionality may be modified or discontinued by us at any time without notice and is subject to the Program Policies and the terms of thisTransaction Terms & Conditions Documents/ Advice. You will route all such payments through SoOLEGAL We will provide any such payments to the customer (which may be in the same payment form originally used to purchase Your Documents/ Advices), and you will reimburse us for all amounts so paid. For all of Your Documents/ Advices that are fulfilled using Fulfilment by SoOLEGAL, the SoOLEGAL Refund Policies published at the time of the applicable order will apply and you will comply with them. You will promptly provide refunds and adjustments that you are obligated to provide under the applicable SoOLEGAL Refund Policies and as required by Law, and in no case later than thirty (30) calendar days following after the obligation arises. For the purposes of making payments to the customer (which may be in the same payment form originally used to purchase Your Documents/ Advices), you authorize us to make such payments or disbursements from your available balance in the Nodal Account (as defined in Section S-6). In the event your balance in the Nodal Account is insufficient to process the refund request, we will process such amounts due to the customer on your behalf, and you will reimburse us for all such amount so paid.
S-5. Compensation
You will pay us: (a) the applicable Referral Fee; (b) any applicable Closing Fees; and (c) if applicable, the non-refundable Transacting on SoOLEGAL Subscription Fee in advance for each month (or for each transaction, if applicable) during the Term of this Transaction Terms & Conditions. "Transacting on SoOLEGAL Subscription Fee" means the fee specified as such on the Transacting on SoOLEGALSoOLEGAL Fee Schedule for the SoOLEGAL Site at the time such fee is payable. With respect to each of Your Transactions: (x) "Transactions Proceeds" has the meaning set out in the Transaction Terms & Conditions; (y) "Closing Fees" means the applicable fee, if any, as specified in the Transacting on SoOLEGAL Fee Schedule for the SoOLEGAL Site; and (z) "Referral Fee" means the applicable percentage of the Transactions Proceeds from Your Transaction through the SoOLEGAL Site specified on the Transacting on SoOLEGAL Fee Schedule for the SoOLEGAL Site at the time of Your Transaction, based on the categorization by SoOLEGAL of the type of Documents/ Advices that is the subject of Your Transaction; provided, however, that Transactions Proceeds will not include any shipping charge set by us in the case of Your Transactions that consist solely of SoOLEGAL-Fulfilled Documents/ Advices. Except as provided otherwise, all monetary amounts contemplated in these Service Terms will be expressed and provided in the Local Currency, and all payments contemplated by this Transaction Terms & Conditions will be made in the Local Currency.
All taxes or surcharges imposed on fees payable by you to SoOLEGAL will be your responsibility.
S-6 Transactions Proceeds & Refunds.
S-6.1.Nodal Account. Remittances to you for Your Transactions will be made through a nodal account (the "Nodal Account") in accordance with the directions issued by Reserve Bank of India for the opening and operation of accounts and settlement of payments for electronic payment transactions involving intermediaries vide its notification RBI/2009-10/231 DPSS.CO.PD.No.1102 / 02.14.08/ 2009-10 dated November 24, 2009. You hereby agree and authorize us to collect payments on your behalf from customers for any Transactions. You authorize and permit us to collect and disclose any information (which may include personal or sensitive information such as Your Bank Account information) made available to us in connection with the Transaction Terms & Conditions mentioned hereunder to a bank, auditor, processing agency, or third party contracted by us in connection with this Transaction Terms & Conditions.
Subject to and without limiting any of the rights described in Section 2 of the General Terms, we may hold back a portion or your Transaction Proceeds as a separate reserve ("Reserve"). The Reserve will be in an amount as determined by us and the Reserve will be used only for the purpose of settling the future claims of customers in the event of non-fulfillment of delivery to the customers of your Documents/ Advices keeping in mind the period for refunds and chargebacks.
S-6.2. Except as otherwise stated in this Transaction Terms & Conditions Documents/ Advice (including without limitation Section 2 of the General Terms), you authorize us and we will remit the Settlement Amount to Your Bank Account on the Payment Date in respect of an Eligible Transaction. When you either initially provide or later change Your Bank Account information, the Payment Date will be deferred for a period of up to 14 calendar days. You will not have the ability to initiate or cause payments to be made to you. If you refund money to a customer in connection with one of Your Transactions in accordance with Section S-2.2, on the next available Designated Day for SoOLEGAL Site, we will credit you with the amount to us attributable to the amount of the customer refund, less the Refund Administration Fee for each refund, which amount we may retain as an administrative fee.
"Eligible Transaction" means Your Transaction against which the actual shipment date has been confirmed by you.
"Designated Day" means any particular Day of the week designated by SoOLEGAL on a weekly basis, in its sole discretion, for making remittances to you.
"Payment Date" means the Designated Day falling immediately after 14 calendar days (or less in our sole discretion) of the Eligible Transaction.
"Settlement Amount" means Invoices raised through SoOLEGAL Platform (which you will accept as payment in full for the Transaction and shipping and handling of Your Documents/ Advices), less: (a) the Referral Fees due for such sums; (b) any Transacting on SoOLEGAL Subscription Fees due; (c) taxes required to be charged by us on our fees; (d) any refunds due to customers in connection with the SoOLEGAL Site; (e) Reserves, as may be applicable, as per this Transaction Terms & Conditions; (f) Closing Fees, if applicable; and (g) any other applicable fee prescribed under the Program Policies. SoOLEGAL shall not be responsible for
S-6.3. In the event that we elect not to recover from you a customer's chargeback, failed payment, or other payment reversal (a "Payment Failure"), you irrevocably assign to us all your rights, title and interest in and associated with that Payment Failure.
S-7. Control of Site
Notwithstanding any provision of this Transaction Terms & Conditions, we will have the right in our sole discretion to determine the content, appearance, design, functionality and all other aspects of the SoOLEGAL Site and the Transacting on SoOLEGAL Service (including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of, and prevent or restrict access to any of the SoOLEGAL Site and the Transacting on SoOLEGAL Service and any element, aspect, portion or feature thereof (including any listings), from time to time) and to delay or suspend listing of, or to refuse to list, or to de-list, or require you not to list any or all Documents/ Advices on the SoOLEGAL Site in our sole discretion.
S-8. Effect of Termination
Upon termination of this Contract, the Transaction Terms & Conditions automatiocally stands terminated and in connection with the SoOLEGAL Site, all rights and obligations of the parties under these Service Terms with regard to the SoOLEGAL Site will be extinguished, except that the rights and obligations of the parties with respect to Your Transactions occurring during the Term will survive the termination or expiration of the Term.
"SoOLEGAL Refund Policies" means the return and refund policies published on the SoOLEGAL Site.
"Required Documents/ Advices Information" means, with respect to each of Your Documents/ Advices in connection with the SoOLEGAL Site, the following (except to the extent expressly not required under the applicable Policies) categorization within each SoOLEGAL Documents/ Advices category and browse structure as prescribed by SoOLEGAL from time to time, Purchase Price; Documents/ Advice Usage, any text, disclaimers, warnings, notices, labels or other content required by applicable Law to be displayed in connection with the offer, merchandising, advertising or Transaction of Your Documents/ Advices, requirements, fees or other terms and conditions applicable to such Documents/ Advices that a customer should be aware of prior to purchasing the Documents/ Advices;
"Transacting on SoOLEGAL Launch Date" means the date on which we first list one of Your Documents/ Advices for Transaction on the SoOLEGAL Site.
"URL Marks" means any Trademark, or any other logo, name, phrase, identifier or character string, that contains or incorporates any top level domain (e.g., .com, co.in, co.uk, .in, .de, .es, .edu, .fr, .jp) or any variation thereof (e.g., dot com, dotcom, net, or com).
"Your Transaction" is defined in the Transaction Terms & Conditions; however, as used in Terms & Conditions, it shall mean any and all such transactions whereby you conduct Transacting of Documents/ Advices or advice sought from you by clients/ customers in writing or by any other mode which is in coherence with SoOLEGAL policy on SoOLEGAL site only.
Taxes on Fees Payable to SoOLEGAL. In regard to these Service Terms you can provide a PAN registration number or any other Registration/ Enrolment number that reflects your Professional capacity by virtue of various enactments in place. If you are PAN registered, or any professional Firm but not PAN registered, you give the following warranties and representations:
(a) all services provided by SoOLEGAL to you are being received by your establishment under your designated PAN registration number; and
SoOLEGAL reserves the right to request additional information and to confirm the validity of any your account information (including without limitation your PAN registration number) from you or government authorities and agencies as permitted by Law and you hereby irrevocably authorize SoOLEGAL to request and obtain such information from such government authorities and agencies. Further, you agree to provide any such information to SoOLEGAL upon request. SoOLEGAL reserves the right to charge you any applicable unbilled PAN if you provide a PAN registration number, or evidence of being in a Professional Firm, that is determined to be invalid. PAN registered REGISTERED USERs and REGISTERED USERs who provide evidence of being in Law Firm agree to accept electronic PAN invoices in a format and method of delivery as determined by SoOLEGAL.
All payments by SoOLEGAL to you shall be made subject to any applicable withholding taxes under the applicable Law. SoOLEGAL will retain, in addition to its net Fees, an amount equal to the legally applicable withholding taxes at the applicable rate. You are responsible for deducting and depositing the legally applicable taxes and deliver to SoOLEGAL sufficient Documents/ Advice evidencing the deposit of tax. Upon receipt of the evidence of deduction of tax, SoOLEGAL will remit the amount evidenced in the certificate to you. Upon your failure to duly deposit these taxes and providing evidence to that effect within 5 days from the end of the relevant month, SoOLEGAL shall have the right to utilize the retained amount for discharging its tax liability.
Where you have deposited the taxes, you will issue an appropriate tax withholding certificate for such amount to SoOLEGAL and SoOLEGAL shall provide necessary support and Documents/ Adviceation as may be required by you for discharging your obligations.
SoOLEGAL has the option to obtain an order for lower or NIL withholding tax from the Indian Revenue authorities. In case SoOLEGAL successfully procures such an order, it will communicate the same to you. In that case, the amounts retained, shall be in accordance with the directions contained in the order as in force at the point in time when tax is required to be deducted at source.
Any taxes applicable in addition to the fee payable to SoOLEGAL shall be added to the invoiced amount as per applicable Law at the invoicing date which shall be paid by you.F.11. Indemnity
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Category and Documents/ Advice RestrictionsCertain Documents/ Advices cannot be listed or sold on SoOLEGAL site as a matter of compliance with legal or regulatory restrictions (for example, prescription drugs) or in accordance with SoOLEGAL policy (for example, crime scene photos). SoOLEGAL's policies also prohibit specific types of Documents/ Advice content. For guidelines on prohibited content and copyright violations, see our Prohibited Content list. For some Documents/ Advice categories, REGISTERED USERS may not create Documents/ Advice listings without prior approval from SoOLEGAL. |
In addition to your obligations under Section 6 of the Transaction Terms & Conditions, you also agree to indemnify, defend and hold harmless us, our Affiliates and their and our respective officers, directors, employees, representatives and agents against any Claim that arises out of or relates to: (a) the Units (whether or not title has transferred to us, and including any Unit that we identify as yours pursuant to Section F-4 regardless of whether such Unit is the actual item you originally sent to us), including any personal injury, death or property damage; and b) any of Your Taxes or the collection, payment or failure to collect or pay Your Taxes.
Registered Users must at all times adhere to the following rules for the Documents/ Advices they intend to put on Transaction:
The "Add a Documents/ Advice" feature allows REGISTERED USERS to create Documents/ Advice details pages for Documents/ Advices.
The following rules and restrictions apply to REGISTERED USERS who use the SoOLEGAL.in "Add a Documents/ Advice" feature.
Using this feature for any purpose other than creating Documents/ Advice details pages is prohibited.
Any Documents/ Advice already in the SoOLEGAL.in catalogue which is not novel and/ or unique or has already been provided by any other Registered User which may give rise to Intellectual Property infringement of any other Registered User is prohibited.
Detail pages may not feature or contain Prohibited Content or .
The inclusion of any of the following information in detail page titles, descriptions, bullet points, or images is prohibited:
Information which is grossly harmful, harassing, blasphemous, defamatory, pedophilic, libelous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, pornographic, obscene or offensive content or otherwise unlawful in any manner whatever.
Availability, price, condition, alternative ordering information (such as links to other websites for placing orders).
Reviews, quotes or testimonials.
Solicitations for positive customer reviews.
Advertisements, promotional material, or watermarks on images, photos or videos.
Time-sensitive information
Information which belongs to another person and to which the REGISTERED USER does not have any right to.
Information which infringes any patent, trademark, copyright or other proprietary rights.
Information which deceives or misleads the addressee about the origin of the messages or communicates any information which is grossly offensive or menacing in nature.
Information which threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.
Information containing software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource.
Information violating any law for the time being in force.
All Documents/ Advices should be appropriately and accurately classified to the most specific location available. Incorrectly classifying Documents/ Advices is prohibited.
Documents/ Advice titles, Documents/ Advice descriptions, and bullets must be clearly written and should assist the customer in understanding the Documents/ Advice. .
All Documents/ Advice images must meet SoOLEGAL general standards as well as any applicable category-specific image guidelines.
Using bad data (HTML, special characters */? etc.) in titles, descriptions, bullets and for any other attribute is prohibited.
Do not include HTML, DHTML, Java, scripts or other types of executables in your detail pages.
Prohibited REGISTERED USER Activities and Actions
SoOLEGAL.com REGISTERED USER Rules are established to maintain a transacting platform that is safe for buyers and fair for REGISTERED USERS. Failure to comply with the terms of the REGISTERED USER Rules can result in cancellation of listings, suspension from use of SoOLEGAL.in tools and reports, or the removal of transacting privileges.
Attempts to divert transactions or buyers: Any attempt to circumvent the established SoOLEGAL Transactions process or to divert SoOLEGAL users to another website or Transactions process is prohibited. Specifically, any advertisements, marketing messages (special offers) or "calls to action" that lead, prompt, or encourage SoOLEGALusers to leave the SoOLEGAL website are prohibited. Prohibited activities include the following:
The use of e-mail intended to divert customers away from the SoOLEGAL.com Transactions process.
Unauthorised & improper "Names": A REGISTERED USER's Name (identifying the REGISTERED USER's entity on SoOLEGAL.com) must be a name that: accurately identifies the REGISTERED USER; is not misleading: and the REGISTERED USER has the right to use (that is, the name cannot include the trademark of, or otherwise infringe on, any trademark or other intellectual property right of any person). Furthermore, a REGISTERED USER cannot use a name that contains an e-mail suffix such as .com, .net, .biz, and so on.
Unauthorised & improper invoicing: REGISTERED USERS must ensure that the tax invoice is raised in the name of the end customer who has placed an order with them through SoOLEGAL Payment Systems platform . The tax invoice should not mention SoOLEGAL as either a REGISTERED USER or a customer/buyer. Please note that all Documents/ Advices listed on SoOLEGAL.com are sold by the respective REGISTERED USERS to the end customers and SoOLEGAL is neither a buyer nor a REGISTERED USER in the transaction. REGISTERED USERS need to include the PAN/ Service Tax registration number in the invoice.
Inappropriate e-mail communications: All REGISTERED USER e-mail communications with buyers must be courteous, relevant and appropriate. Unsolicited e-mail communications with SoOLEGAL , e-mail communications other than as necessary and related customer service, and e-mails containing marketing communications of any kind (including within otherwise permitted communications) are prohibited.
Operating multiple REGISTERED USER accounts: Operating and maintaining multiple REGISTERED USER accounts is prohibited.
In your request, please provide an explanation of the legitimate business need for a second account.
Misuse of Search and Browse: When customers use SoOLEGAL's search engine and browse structure, they expect to find relevant and accurate results. To protect the customer experience, all Documents/ Advice-related information, including keywords and search terms, must comply with the guidelines provided under . Any attempt to manipulate the search and browse experience is prohibited.
Misuse
of the ratings, feedback or Documents/ Advice reviews: REGISTERED
USERS cannot submit abusive or inappropriate feedback entries,
coerce or threaten buyers into submitting feedback, submit
transaction feedback regarding them, or include personal information
about a transaction partner within a feedback entry. Furthermore,
any attempt to manipulate ratings of any REGISTERED USER is
prohibited. Any attempt to manipulate ratings, feedback, or
Documents/ Advice reviews is prohibited.
Reviews: Reviews
are important to the SoOLEGAL Platform, providing a forum for
feedback about Documents/ Advice and service details and reviewers'
experiences with Documents/ Advices and services –
positive
or negative. You may not write reviews for Documents/ Advices or
services that you have a financial interest in, including reviews
for Documents/ Advices or services that you or your competitors deal
with. Additionally, you may not provide compensation for a review
(including free or discounted Documents/ Advices). Review
solicitations that ask for only positive reviews or that offer
compensation are prohibited. You may not ask buyers to modify or
remove reviews.
Prohibited Content
REGISTERED USERS are expected to conduct proper research to ensure that the items posted to our website are in compliance with all applicable laws. If we determine that the content of a Documents/ Advice detail page or listing is prohibited, potentially illegal, or inappropriate, we may remove or alter it without prior notice. SoOLEGAL reserves the right to make judgments about whether or not content is appropriate.
The
following list of prohibited Documents/ Advices comprises two
sections: Prohibited Content and Intellectual Property
Violations.
Listing
prohibited content may result in the cancellation of your listings,
or the suspension or removal of your transacting privileges.
REGISTERED USERS are responsible for ensuring that the Documents/
Advices they offer are legal and authorised for Transaction or
re-Transaction.
If
we determine that the content of a Documents/ Advice detail page or
listing is prohibited, potentially illegal, or inappropriate, we may
remove or alter it without prior notice. SoOLEGAL reserves the right
to make judgments about whether or not content is appropriate.
Illegal and potentially illegal Documents/ Advices: Documents/ Advices sold on SoOLEGAL.in must adhere to all applicable laws. As REGISTERED USERS are legally liable for their actions and transactions, they must know the legal parameters surrounding any Documents/ Advice they display on our website.
Offensive material: SoOLEGAL reserves the right to determine the appropriateness of listings posted to our website.
Nudity: In general, images that portray nudity in a gratuitous or graphic manner are prohibited.
Items that infringe upon an individual's privacy. SoOLEGAL holds personal privacy in the highest regard. Therefore, items that infringe upon, or have potential to infringe upon, an individual's privacy are prohibited.
Intellectual Property Violations
Counterfeit merchandise: Documents/ Advices displayed on our website must be authentic. Any Documents/ Advice that has been illegally replicated, reproduced or manufactured is prohibited.
Books - Unauthorised copies of books are prohibited.
Movies - Unauthorised copies of movies in any format are prohibited. Unreleased/prereleased movies, screeners, trailers, unpublished and unauthorized film scripts (no ISBN number), electronic press kits, and unauthorised props are also prohibited.
Photos - Unauthorised copies of photos are prohibited.
Television Programs - Unauthorised copies of television Programs (including pay-per-view events), Programs never broadcast, unauthorised scripts, unauthorised props, and screeners are prohibited.
Transferred media. Media transferred from one format to another is prohibited. This includes but is not limited to: films converted from NTSC to Pal and Pal to NTSC, laserdisc to video, television to video, CD-ROM to cassette tape, from the Internet to any digital format, etc.
Promotional media: Promotional versions of media Documents/ Advices, including books (advance reading copies and uncorrected proofs), music, and videos (screeners) are prohibited. These Documents/ Advices are distributed for promotional consideration and generally are not authorized for Transaction.
Rights of Publicity: Celebrity images and/or the use of celebrity names cannot be used for commercial purposes without permission of a celebrity or their management. This includes Documents/ Advice endorsements and use of a celebrity's likeness on merchandise such as posters, mouse pads, clocks, image collections in digital format, and so on.
YOU HAVE AGREED TO THIS TRANSACTION TERMS BY CLICKING THE AGREE BUTTON