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Builders and Developers – How to Recovery Advance paid to them INTRODUCTION:The concept of advance payment or deposit is part of a contractual relationship between a buyer and a seller read more
Builders and
Developers – How to Recovery Advance paid to them
INTRODUCTION:
The concept of advance payment or
deposit is part of a contractual relationship between a buyer and a seller in transferring
immovable property. However, it differs from security money, which generally
indicates a buyer's interest in said property. It is considered part of a 'purchase
money', the due amount of which is supposed to be paid on a future date,
complying with the agreement signed between the parties.
LEGAL
RIGHTS OF PROSPECTIVE BUYER
Referring to the buyer's right under
property law, a prospective
buyer, under section 55(6)(b) of the Transfer of Property Act, 1882, is entitled to a charge on the property
against the seller or anyone claiming it under him, for the amount of purchase
money (advance deposit) paid by him as part of the sale agreement.
Therefore, when the buyer has not defaulted or breached any terms of the
contract thereof, he has all the rights to use legal remedies available to
protect his rights against a seller, i.e., builder/contractor, to claim their
money (advance payment) back or ask for specific performance if possible.
LEGAL
RIGHT OF BUYER TO CLAIM COMPENSATION
In
addition, as per section 21 of the Specific Relief Act, the party who suffers
from a breach of a contract by any means is entitled to receive compensation
for any loss incurred by the damages caused to him by the party who is at fault
or broken a contract as a pecuniary compensation due to a breach or loss. In
such instances where the seller or contractor refuses to fulfil contractual
obligations, a buyer can also charge him for a penalty if a penalty clause is
inserted in an agreement.
MODES
OF MISUSING THE ADVANCE AMOUNTS BY THE BUILDERS OR DEVELPERS
The
cases of payment fraud by the side of builders or developers are prevalent by
several means, such as
●
Delaying the possession
of the property beyond a reasonable time.
●
Using advance payment
or deposit money for new projects or personal use.
●
By misrepresentation,
where the property does not meet promised specifications,etc.
The
purview of applicable laws is explained hereunder:
RELEVANT
ACTS
The
Indian Contract Act, 1872
The
primary provisions of law regulating advance deposit or earnest money are
sections 73 & 74 of the Contract Act. As per the general rule of the
contract, if a party infringes the terms of a contract by any means, the buyer
has the right to cancel the contract and obtain a refund of the advance deposit
along with interest and compensation for any loss incurred. Hence, a buyer of
the property under a valid contract is safeguarded under this Act.
The
Specific Relief Act, 1963
Under
section 20 of the Specific Relief Act, a defaulting party under the terms of a
contract can be held liable to perform precisely what has been mentioned in the
contract. Therefore, in the instances where a buyer is cheated by a
builder/developer of a property and if a builder takes an unfair advantage by
which the buyer has extreme hardship, the Court in such cases may exercise discretion
in granting specific performance as a relief to a defendant/buyer.
The
Consumer Protection Act, 1986 and the Indian Penal Code, 1860
Consumer
courts have imposed huge penalties in various matters and assured that the
possession of the flat or property is handed to a prospective buyer at the
earliest or the entire amount is refunded along with interest and compensation.
In cases where the builder has cheated, or the developer has made false
promises, the buyer can file a criminal case under the Indian Penal Code, 1860,
for cheating, breach of contract, or delivery of poor-quality construction. He
can also file a consumer complaint regarding deficiency of services, delay in
possession, or non-delivery of property/flat.
The
Real Estate (Regulation and Development) Act, 2016, and RERA (Real Estate
Regulatory Authority)
The
interest of home/property buyers is protected under this Act regarding
safeguarding their rights where they can file a complaint against the builder
or a developer. Under the RERA Act, a minimum of 70% of the buyer's money will
be kept in a separate escrow account that will ensure that the fundscollected
for a particular real estate project arenot diverted to other projects
undertaken by the builder/developer. However, builders cannot ask for more than
10% of the property's value as an advance payment before the sale agreement is
signed. It also states that claiming a refund of the payment or an advance
deposit is an exclusive right of a buyer. Thus, in instances where a builder or
developer has cheated or violated the terms of a contract causing any loss or
inconvenience to a buyer, a buyer is eligible to claim an advance deposit made
by him with interest or a full refund
with interest post the due date for up to 10% every month until handing over
the property. The methods you can use as buyers as a remedy to take legal
action against a seller or a builder are mentioned below.
LEGAL
METHODS FOR RECOVERY OF ADVANCE PAID
Send
a legal notice
Sending
a legal notice to a seller or builder is theforemost step in any property
dispute,whether for payment recovery or for a specific performance where alegal
breach of a contractual relationship has occurred. A lawyer or an attorney
dealing with a property dispute or contract lawyer can assist in drafting a
proper legal notice describing the appropriate grounds and reasons for it. If
the builder refuses or doesn't respond within the stipulated time of sending
such notice, he can take the next legal step in the procedure.
File
a complaint under RERA
First,
a buyer must check if the builder is registered under RERA. If yes, he can
easily file a complaint online on the registered portal of RERA to raise a
complaint against the seller to obtain relief and to claim a refund or advance
payment.
Moving
to a Consumer Forum
A
buyer can also approach a consumer court to file a complaint against the seller
for a criminal breach of trust or fraud. In addition, Consumer courts have
ordered exemplary compensation like 65 lakhs and 18% interest compensation. In
the matter of Unitech, Jaypee group was penalized with a 12% annual penalty for
its NOIDA project.
Court
Precedent
Videocon
Properties Ltd. v. Dr Bhalchandra Laboratories and Others [(2004) 3 SCC 711]
In
this case, the Supreme Court examined the nature of the advance deposit. The Court
took the view that the words used in the agreement alone would not be
determinative of the character of the "earnest money", but the
intention of the parties and the surrounding circumstances must be considered
to know whether an initial payment is an essential advance deposit.
Conclusion
When
the contract contains a clause as to what is to be done with the advance
deposit in the event of a breach of contract, the Court must be guided by the
terms of the contract. Hence, the advance deposit will be refunded in case of
non-compliance with the contract by the seller or builder. Additionally, when a
buyer invests in a project approved by RERA, their rights as a buyer are
secured. RERA ensures legal compliance and possession timings. Also, a buyer
can claim an advance payment made to a builder as a booking amount if his loan
application is dishonoured for any reason. One must know that the government
lays out no rules or conditions regarding the cancellation of the house or
refund the booking amount. It is subjective to your understanding of your
builder or developer. So, the advance payment can be recovered in such cases,
but a buyer might have to pay a cancellation fee, as mentioned by a builder in
the agreement. If a buyer has not maintained the documents or documented the
property purchase, he may not be able to get the refund. In this case, one can
consider taking legal advice.
*****
These days a lot of controversy is going on regarding appointments of judges of the High Courts and Supreme Court, with the Supreme Court and the Government of India at loggerheads. So let me narrate read more
When America is thinking of having an American data privacy and protection act that is American Data Privacy and Protection Act and various States are agreeable to the same and various Countries in the read more
When America is thinking of having an American data privacy and protection act that is American Data Privacy and Protection Act and various States are agreeable to the same and various Countries in the world are thinking to have a privacy acts the world was surprised and shocked to know one recent development.
We have recently seen shocking news when a German personal who is supposed to be one cyber security personnel found a shoe-box type device was available on eBay at the rate of $ 149 approx. and he purchases the same shoe-box type device at $68 and when German personal receive the device that contains biometric and Iris data of 2632 people who were supposed to be the citizen of Afghanistan and other Asia country and some biometric information were of some suspected terrorist.
Even
when the German personal analyzed the device in terms of SEEK II i.e. Secure
Electronic Enrolment Kit Metadata it was seen that the device was last used in
2012 in Asia.
Now the
million-dollar question is how can a tiny device travelled down from Asia to
eBay i.e. one e-commerce portal. Now you can understand how secured your data
is at this cyber world.
Be careful that when you sell or dispose off your device containing your personally identifiable data. Be sure about formatting or erasing your data prior handing over the same.
In today’s ever-changing world where the age-old conventional technology has been defenestrated every day, data proved to be the most important thing and usually termed as “oil” or “air” of our society. The avalanche of data or should I say Big data are the only business interest for the big entities of our complex society. It is ex-facie clear that our data is the centre of attraction for those entities. Some invincible data brokers qua data-analytics without our knowledge are collecting, packaging and selling our personal private data online and offline. Even the different e-commerce and social site companies are collecting, storing and tracking our data. Our life is converted into data package where we are only products. Our every purchase, every journey, every likes and dislikes, hobbies, thinking and thus every part of our life are digitised, tracked and logged. Today all around we can find a data war where unknown and invisible data brokers are stealing our data and profiling us.
How secure your data in this cyber world?
Discharging and Quashing in Criminal CasesIn criminal cases, it is crucial to consider all available options for the accused, particularly whether to file a petition for Discharge or go before the High read more
Discharging
and Quashing in Criminal Cases
In criminal cases, it is crucial to
consider all available options for the accused, particularly whether to file a
petition for Discharge or go before the High Court in a quashing petition. The
question of whether the accused should apply for Discharge under Section 227 or
Section 239 under the Code of Criminal Procedure, 1973 (Cr.P.C.) to the trial
court or apply to the High Court under Section 482 of the Cr.P.C. to have the
summoning orders quashed, provided they believe their case has some merit for
such relief.
What
is Discharge?
The remedy provided to the falsely accused
individual under the Criminal Procedure Code of 1973 is known as a Discharge
Application. This Code contains the guidelines for submitting a discharge
application if the accusations brought against him are untrue. He is entitled
to be dismissed if the evidence presented to the court is insufficient to
establish the offence and there is no prima facie evidence against him.
Essential
elements of Discharge
The following essential components must be
present for the Court to assess the Charge sheet and Police Report that were
provided to it by the police, in accordance with Section 173:
·
If
he sees proper, the Magistrate may question the Accused.
·
Following
that, the prosecution and the accused parties' arguments and their stories
would be heard.
·
Grounds
against the accused should be without merit if no supporting documentation
exists. The Court must also be certain that the accused is not the subject of a
valid first charge.
The accused is discharged if the
aforementioned requirements are met.
When
an accused can be discharged in different kinds of cases
·
Discharge
of accused in warrant cases based on a police report
The final charge sheet under Section 173
of the Code is often filed by the police when their investigation is complete. The court in question then starts the
accused's trial. However, Sections 239 and 227 of Cr.P.C. have procedures that
allow an accused individual to be released before charges are filed against him.
These rules, however, may only be invoked by the Accused in warrant cases.
·
Discharge
of accused in warrant cases instituted on a police report before Magistrate
The final charge sheet against the accused
is typically filed by the police when their investigation is complete. After
then, the court in question presents the accused with the allegations that have
been brought against him. The Cr.P.C., however, provides a procedure that
allows the accused to be freed before formal accusations are brought against
him.
Suppose the Magistrate determines that the
charge against the accused is without merit after carefully reviewing the
police reports. In that case, all the documents submitted pursuant to Section
173, the examinations of the accused, if any. After hearing the prosecution and
accused, he shall discharge the accused and note his justifications.
·
Discharge of accused in Sessions Trial
According to Section 227 of the Code, if
the Judge determines that there are insufficient grounds to proceed against the
accused, after hearing the prosecution's and accused's arguments and taking
into account the case file and any documents submitted with it, he shall
discharge the accused and note the specifics of his decision. An accused
person's Discharge cannot be issued before taking into account the accusations
in the chargesheet and the pertinent legal precedent.
Important
Case law
The Hon'ble Supreme Court ruled in Smt.
Rumi Dhar v. State of West Bengal &Anr. (2009) 6 SCC 364 that the learned
Judge should examine the specific charges levelled against each accused
individual when evaluating an application for Discharge made in accordance with
Section 239 of the Code to determine whether or not a case has been made out at
all.
What
is Quashing?
It is determined that Section 482 Cr.P.C. is within the ambit of the High Court's inherent
powers and is relatively unusual in criminal law. It appears to be the most
potent instrument given to the High Court under the Indian Constitution's
procedural provisions. It indicates that the High Courts of a specific state
are the only ones who may employ this stipulated clause, and the Superior
authorities may never revoke the High Courts' inherent power.However, only the
courts have the right to use these authorities to provide complete and
acceptable justice to the parties in front of them and to prevent misuse of the
legal system. In accordance with section 482 CrPC of the new Code, this is done
with an inherent capacity to uphold justice, right wrongs, and prevent abuse of
the legal system. It is important to note that the high court's inherent powers
should only be employed in limited circumstances.The Code of Criminal Procedure
(Amendment) Act of 1923 added this section because it was determined that the
high courts were unable to provide complete justice when it was determined that
the given case demonstrated ex-facie or occasionally prima facie illegality that
was frequently observable and obvious.
Essential
elements of Quashing
However, it is argued here that this
provision includes three scenarios in which such inherent jurisdictional rights
may be used. These are as follows:
·
To
avoid misuse of the court's procedures.
·
To
fulfil the purposes of justice.
·
To
put into effect a Cr.P.C. order.
The following points can be used to conclude
what is coherent with the goals of 482 Cr.PC: The inherent authority of the
High Court is the most potent tool under Section 482 of the Code of Criminal
Procedure, and it undoubtedly acts in a particular manner in criminal law. This
process is primarily employed to purge the realm of criminal proceedings of all
corrupting and malevolent influences.
Important
Case Law
In Som Mittal v. Govt. of Karnataka, the
Supreme Court ruled that the authority granted by Section 482 Cr.P.C. must only
be used in the rarest of circumstances. The use of inherent power, as described
in Section 482 of the Code of Criminal Procedure, is an exception rather than
the rule. The exception is only used when it is brought to the Court's
attention that a serious injustice would have been done if the trial had
continued and the accused would have been subjected to needless harassment. At
first glance, it would seem to the Court that the trial
would likely result in an acquittal.
*****
Analyzing legal and security issues in cyber contracts(E - contracts) The world of the internet has provided convenience in almost all aspects of life. It has seemingly worked in connecting people read more
Analyzing legal and security issues in cyber
contracts
(E - contracts)
The world of the internet has provided
convenience in almost all aspects of life. It has seemingly worked in
connecting people all around the globe. As a result, people are more comfortable,
and everything is just a click away. The very radiant impact of this reflects
in the corporate world through the boost of e-commerce across the board. Businesses
and legal or formal paperwork have robotized with the help of technological
advancement and electronic mediums. Traditional contracts and agreements by pen
and paper are getting replaced by online contracts or e-contracts. Hence, we
can enunciate that e-contracts are nothing but the digitized version of
traditional contracts.
However, essential elements
of a contract are not different as e-contracts are also governed under the
Indian Contract Act, 1872, along with the provisions followed under Information
Technology Act, 2000, Indian Evidence Act, 1872, Payment and Settlement Act,
2007 and Electronic Commerce Act, 1998. As cyber contracts are also governed by
the Indian Contract Act, 1872, the essential elements of a valid e-contract are
similar to a traditional contract. In addition, Clickwrap agreements,
Browsewrap agreements and Shrinkwrap agreements are three general kinds of e-contracts.
These
are the essential ingredients of an e-contract:-
The legal and regulatory
framework in India for the validity of cyber contracts
The provisions laid down
under the Act do not limit electronic contracts or agreements unless they
violate the general principles of a valid and legitimate contract enforceable
under the law. Under Section 2 (b) of the Act, acceptanceof the valid offer and
other essentials are considered valid criteria for forming the contract.
Linking to the E-Contract is a form of acceptance when we agree by clicking on
"I agree" to all the supplier's/ originator's terms and conditions.
In congruence with this section
defined by the Indian Evidence Act of 1872, the judicial systems in India
acknowledge electronic documents with the effect of special provisions as
evidence relating to the contents of electronic records. However, it is also
pertinent to section 65-B of the Act and the conditions prescribed therein,
fulfilling its admissibility in the court.
By section 10A of the Act,
if the contract formation meets all the requisites as per the provisions of the
law, then it shall not be deemed unenforceable solely on the ground of its
medium. Furthermore, In e-contracts, digital signatures will be required to
authenticate communication between the parties, defined under Section 2 (p) of
the Information Technology Act, 2000.
The Indian legislative system brought the Act to
oversee the challenges related to cyber contracts. The Act comprises 15
divisions and lays down essential rules and requirements for genuine
e-contracts.
Legal
and security issues faced by E Contracts
Judicial issues:
Choice
of the applicable law
It gets slightly tricky to determine which
law will govern the dispute in case of cyber contracts in the absence of the
choice of the law by the parties to an agreement, i.e. originator and
addressee. Consequently, several civil laws may be affected in deciding relevant
substantive laws in cross-border commercial transactions.
Choice
of the court of jurisdiction
Since transactions like cyber contracts are
paperless, it becomes relatively difficult to determine the court's jurisdiction
in case of a breach or violation of the contract or any terms thereof. However,
as per Section 13 (3) of the IT Act, the electronic record is deemed to be
dispatched at the business place of the originator, whereas, for the addressee,
it is considered to be at the business place where he has received the same.
Subsequently, the issue may emerge where the location of the computer source is
dissimilar from the principal place of the enterprise or a communicator. Also,
when the parties are engaging in e-contract terms from different borders of the
world.
Competency
and free consent
Section 10 of the Indian
Contract Act primarily governs contracts that include e-contracts in India.
Consequently, Section 10, 11, and 12 of the Act mandates free consent and competence
of the parties to enter a contract which are essential ingredients for a valid
contract formation under the law. Since this also applies to cyber contracts, a
situation may arise where an incompetent person be it minor or any other, may
accidentally or fraudulently get access or either by clicking on ' I agree' to
the terms of the contract.
Security Issues:
Security
and privacy threat
More often than not, security and privacy
issues majorly affect online transactions, irrespective of whether they are
commercial or on the applications or a shopping website with buyer and seller
agreements. Internet malpractices such as hacking, phishing, and email
satirizing are some prominent drawbacks in web-based transactions and
contracts.
Signature
authentication
The binding parties don't have to sign a
contract, as the Indian Contract Act, 1872 recognizes both, i.e. oral and
written agreements. However, a digital signature represents the party's
intention or consent to enter a contract, which may be subject to suspicion due
to cyber fraud in the virtual world.
Loss
due to technical error
Loss due to technical error is one of the
most prevalent issues affecting transactions and contracts in the virtual
environment.
Data
forgery and Identity theft
Section 66, read with Section
43 of the Information Technology Act, 2000 explicitly deals with onlinefraud.
Nonetheless, it also incorporates identity theft, which includes imitating the
buyer, a person, or an enterprise and dealing in unlawful activities that may
involve criminal intent.
Court precedent in India on the online
contracts
Trimex International Fze Limited v. Vedanta
Aluminium Limited
The offer and acceptance were transmitted by
email without signature documents in the given case. The issue pertained to the
question of whether the contract is held to be valid in the absence of the formal
subsistingagreement. The Hon'ble Supreme Court in the given case pronounced its
judgment as once a contract is reached within the electronic system of the
parties, it fulfils all the essentials of the said contract under the
provisions of the laws to which it is subjected, the mere notion that a formal
agreement must be needed has no bearing on its validation.
Above are some of the legal
and technical issues whiche-contracts face in India and globally. However,
these legal and technical limitations can be curbed with the implication of the
substantial yet specific laws for the contracts and transactions happening
digitally. Nevertheless, with innovations and inventions in technological
trends, the growth of the digital wave is quite evident in the world of
business, and independent e-contract governance can transform it into a success
with better control over the issues.
Conclusion
The world has moved on and
adapted various approaches to tackle the problems associated with business
trades. With e-contracts coming into the picture, an arrangement can be made
between two parties residing in different corners of the world from their place
of business. The e-contract mechanism has reduced the parties' physical
presence while signing the agreements but has also increased the fear of
falling into online fraud. Many people have gained through this new mechanism
but still, a handful of people have been left behind, fearing they might get
into trouble. Appropriate safeguards are required to protect the parties' interests by legal justification and clarity of
jurisdiction if a party breaches the terms of the e-contract. Depending upon
the trade, the traditional way of agreement might vanish in the coming days,
and the new e-contract will replace it.
*****
Section 143A of Negotiable Instruments Act: Power of the Court to Direct Interim CompensationThe Negotiable Instruments Act, 1881 can be defined as 'an Act to define and amend the law relating to promissory read more
Section 143A of Negotiable Instruments
Act: Power of the Court to Direct Interim Compensation
The Negotiable Instruments Act, 1881
can be defined as 'an Act to define and amend the law relating to promissory
notes, bill of exchange and cheques.' The Negotiable Instruments (Amendment)
Bill was presented before the Lok Sabha by the Finance Minister on January 2,
2018. It received the assent of the President and was notified in the Official
Gazette on 2nd August, 2018 to become an Act called the Negotiable
Instruments (Amendment) Act, 2018 (No. 20 of 2018).
The Negotiable Instruments
(Amendment) Act, 2018 introduces a new provision, Section 143A, to the Act of
1881. Section 143A of the Act provides -
"Notwithstanding anything
contained in the Code of Criminal Procedure, 1973, the Court trying an offence
under section 138 may order the drawer of the cheque to pay interim
compensation to the complainant -
a)
in
a summary trial or a summons case, where he pleads not guilty to the accusation
made in the complaint; and
b)
in
any other case, upon framing of charge."
The amount of the interim
compensation cannot exceed 20% of the value of the dishonored cheque.
The interim compensation described
above must be paid within 60 days of the order requiring it
or within such period not exceeding thirty days as maybe directed by the Court. Any compensation received can be
deducted from the fine imposed by the Magistrate on the drawer's conviction
under Section 138 of the Act, or from any compensation ordered to be paid under
Section 357 of the Code of Criminal Procedure of 1973. Section 138 of the Act
provides for imprisonment of up to two years or a fine extending to twice the
amount of the dishonored cheque, or both.
Two new
Sections i.e., 143A and 148 have been proposed to be inserted under the
Negotiable Instruments Act, 1881 via the Amendment Act:
1. Section
143A- It empowers the Court to order the drawer of the cheque to pay
Interim Compensation to the complainant:
i.
In case of a summary trial or a summons case,
where the drawer pleads not guilty to the allegations made in the complaint,
and
ii.
In any
other case, upon framing of the charges.
Quantum of
Compensation -
The compensation amount shall not exceed 20% of the amount of the Cheque.
On
Acquittal - In
case where the drawer is acquitted then the payee may be directed to refund the
entire amount of interim compensation along with the RBI's Prevailing interest
rate, to the drawer.
Time Frame - The interim compensation
shall be paid within 60 days from the date of the order by the court which may
be further extended by an additional period of 30 days, subject to the
sufficient reasons being shown.
2. Section
148 – It empowers the Appellate Court to order payment pending the
appeal against conviction under Section 138 of the Negotiable Instruments Act.
The Appellate
Court may order the appellant to deposit an amount which shall be a minimum of
20% of the fine or compensation awarded by the trial Court.
This amount
shall be in addition to the amount already paid by the appellant under Section
143A.
This deposit
may be released by an order for payment to the complainant at anytime during
the pendency of the appeal.
On
Acquittal - In
case of the appellant being acquitted, the court shall direct the complainant
to refund the entire deposit amount along with the RBI's prevailing interest
rate to the appellant.
Time Frame - The deposit amount shall be
paid within 60 days from the date of the order by the court which may be
further extended by an additional period of 30 days, subject to the sufficient
reasons being shown.
The interim compensation can be
recovered using the procedures outlined in Section 421 of the Criminal
Procedure Code, which allow for the attachment and sale of the drawer's movable
property or the issuance of a warrant to the Collector to recover the
compensation from the drawer's movable or immovable property as if it were
unpaid land revenue.
If the drawer of the cheque is found not guilty, the court will
order the complainant to pay back the interim compensation to the drawer, along
with interest at the bank rate published by the Reserve Bank of India in the
beginning of the relevant financial year within 60 days from the date of
such order.
Landmark Judgments:
The Hon'ble Supreme Court in the case
of G.J. Raja vs. Tejraj
Surana,
SLP (Criminal) No. 3342 of 2019 ruled that Section 143A of the Negotiable Instruments Act
will not be applied retrospectively. "The provisions of said section 143A
can be applied or invoked only in cases where the offence under section 138 of
NI Act was committed after the introduction of said section 143A." the
court observed. Therefore, this provision is not applicable when the court has
taken cognizance of the offense before the amendment came into effect. Section
143A is only applicable when the court has taken cognizance of the offense
after the amendment.
The Supreme Court ruled in the case
of Noor Mohammed v.
Khurram Pasha, Special Leave Petition(Criminal)No. 2872 of 2022, that an accused person who fails to
pay the interim compensation required by Section 143A of the Negotiable
Instruments Act cannot be denied the right to cross-examine witnesses on behalf
of the complainant. The Court agreed with the arguments made by the appellant
and concluded that Section 143A does not indicate that an accused person who
fails to pay interim compensation should be subjected to any other limitations,
including the loss of the right to cross-examine the complainant's witnesses.
"Any such order foreclosing the right would not be within the powers
conferred upon the court and would, as a matter of fact, go well beyond the
permissible exercise of power," the Court observed.
The Delhi High Court ruled in the
case of M/S JSB Cargo and
Freight Forwarder Pvt Ltd v State and Anr, CRL.M.C.2663/2021, that Section 143A of the Negotiable
Instruments Act of 1881 is a directory provision rather than a mandatory one.
The court also noted that the use of the word "may'' in Section 143-A(1)
of the Act conveys that the granting of interim compensation is not mandatory
and a discretion was conferred upon the Court, to either grant or not to grant interim
compensation. Additionally, the Court has to record reasons for determining the
quantum of interim compensation, if it decides to award it, which can be up to
20% of the cheque amount based on the facts and circumstances of the case.
The Karnataka High Court has said
that it is not mandatory for Magistrate Courts to pass orders directing interim
compensation under Section 143A of the Negotiable Instruments (NI) Act, if the
accused does not plead guilty. A single judge bench of Justice M Nagaprasanna
said.
In another case, the
Karnataka High Court’s Dharwad Bench quashed the orders of a
trial court to attach and auction properties of a Koppal businesswoman for
recovering interim compensation of Rs 40 Lakh from her in a Rs 2-crore
cheque-bounce case.
References:
https://www.mondaq.com/india/financial-services/734716/new-cheque-bounce-provisions-143a-148
*****
A career in translation allows you to translate a wide range of content across a variety of topics. Legal translation involves translating legal documents to another language such as contracts, depositions, read more
A career in translation allows you to translate a wide
range of content across a variety of topics. Legal translation involves
translating legal documents to another language such as contracts, depositions,
and court documents. However, unlike general translation, legal translation
entails unique skills that can impact translation. In this article, we’ll cover
five important skills to consider to become a legal translator.
Becoming a legal document translator requires a deep understanding of multiple
languages and a high level of language fluency. Translators need to understand
the nuances of different cultures, their distinct dialects, and how their
language changes in different contexts.
It’s important to have a native-level
proficiency in both the source language and the target language you’re
translating into. This will help ensure that you don’t miss important details
or make any mistakes in your translations. You should also be familiar with all
the technical terms associated with the legal field and possess the ability to
accurately render them into the target language.
Legal documents are complex and the language can be tricky to navigate, so having prior
translation experience is highly recommended. When it comes to translation, you
should be familiar with the legal terminology that is used, and have a solid
understanding of the differences between the two languages.
As a legal document translator,
you’ll be working with documents from different countries and cultures. This
means that you need to have an understanding of the local customs, values, and
traditions to properly translate the legal documents.
Having a strong understanding of
different cultures is also essential for understanding the context of the legal
document. For example, if the document references something specific to the
culture, such as a particular holiday or cultural event, you will need to know
enough about that culture to accurately translate that reference.
If you want to become a successful
legal document translator, it is essential that you have an in-depth knowledge of
the legal system of both languages you are working with. You should be able to
understand the different types of documents and be aware of any legal
terminology that is specific to either language. It is helpful to stay
up-to-date on any new laws or regulations that may come into effect in either
language so that you can ensure your translations are accurate. In case you
need the services of a professional law firm, consider hiring Duluth Personal Injury Lawyers.
Legal documents are often complicated
and need to be written with precision and accuracy. Having excellent writing
skills will help you understand the different legal concepts and ensure that the translation is clear and understandable. Having
a good grasp of grammar and spelling is also essential when translating legal
documents. This will help you create a polished translation that is free of
errors.
Becoming a legal document translator
is a challenging task, yet a rewarding career path. The success of a legal
document translator depends on the quality of their work, so it is important to
remain diligent and professional at all times. By following the skills outlined
above, you can become an expert in legal document translation.
The law can be a complicated and intimidating subject for many people. Knowing when to enlist the help of a lawyer can provide valuable assistance, from family court cases to contract negotiations. To read more
The law can be a complicated and intimidating
subject for many people. Knowing when to enlist the help of a lawyer can
provide valuable assistance, from family court cases to contract negotiations.
To ensure you're making the best decisions for yourself and your circumstances,
the following are five scenarios when it might be time to consult a legal
expert.
Divorce can be one of the most difficult to
navigate, especially when assets and disputes come into play. It's essential
when filing for a divorce to choose an attorney who has experience in family
law. A good lawyer will provide insight into what to expect from the process,
help craft a solution tailored to your circumstances, and protect your rights
throughout the divorce proceedings. Be sure to ask questions during the initial
consultation so that you fully understand their fees, payment plan, and how
they plan to handle any potential conflicts.
Workplace disputes can arise when a worker
feels their employer has wronged them. These cases may include wrongful termination, discrimination, and
workplace injury claims. In these situations, it is important to hire an
experienced attorney who understands the laws governing your particular
situation and can help you understand your rights and legal options. Your
lawyer will be able to advise you on the best course of action and work with
you to ensure that your rights are fully protected.
Product liability cases involve a person
injured or killed due to a product they purchased or used. In these cases, the
company that manufactured the product may be held liable for any damages caused
by the faulty item. Depending on the severity of the injuries, experienced Dallas Defective Product Lawyers can help you
determine if a case should be pursued and how much compensation should be
sought. The attorney can also guide you through filing a lawsuit, represent you
in court hearings and negotiations, and prepare any necessary legal documents.
Car accidents can be traumatic experiences,
and the legal process afterward can be confusing. An experienced car accident
lawyer can guide you through the process of filing an insurance claim and help you
understand your rights. In addition, they may also be able to negotiate with
the insurance company on your behalf to ensure that any settlements are fair.
It is important to hire an experienced car accident lawyer who understands the
laws related to these types of cases and has a successful track record of
getting clients the compensation they deserve.
Criminal law cases involve any violation of
the law that is punishable by fines, jail time, or other forms of punishment. A
qualified criminal law attorney can defend individuals facing charges related
to drug possession, assault, theft. In some cases, an attorney may be able to
get a reduced sentence or have the charges dismissed entirely. No matter what
type of criminal case you face, it is vital to have a
lawyer who can interpret the law and build a strong defense strategy.
Whether you are dealing with a workplace
dispute, facing criminal charges, being involved in a car accident, or writing
a will, hiring an experienced lawyer is essential. A good lawyer should be able
to provide advice and assistance on the best course of action for your specific
situation and ensure that you are adequately represented in any legal
proceedings. If you find yourself in any of the five life situations mentioned
above, don't hesitate to seek legal advice from a qualified lawyer.
These days Rahul Gandhi is on a Bharat Jodo Yatra ( Unite India March ), from Kanyakumari to Kashmir. But will it really unite India, which has numerous religions, castes, races, languages, etc ? I read more
How To Tackle The Aggressive ClientsIntroduction:In the recent past most of the educated clients are frustrated due to delay justice. The educated litigants approaching the Hon’ble Courts with folded read more
How To Tackle The
Aggressive Clients
Introduction:
In the recent past most of the educated clients are frustrated due to delay justice. The educated litigants approaching the Hon’ble Courts with folded hands with an assumption that they will get justice as promised under the following circular issued by various Hon’ble High Courts. The summary of such circular is as follows:
Karnataka Case
Flow Management Rules
The said circular bears No. LAW 294 LAC 2005 dated
18.03.2006 issued by Law, Justice and Human Rights Secretariat, Government of
Karnataka, Bengaluru.
SIMILAR RULES ARE
FRAMED BY ALL THE HIGH COURTS
The Karnataka High Court has launched the
Case Flow Management system.
The Karnataka (Case Flow Management in
Subordinate Courts) Rules 2005, as it is called, was gazetted by the State
Government almost two years ago. Subsequently, the High Court framed the rules
applicable to all suits and civil proceedings before the subordinate civil
courts and tribunals.
It divides cases into four tracks.
Disposal in 9 months:
In
Track 1 the High court has included suits on maintenance, child custody,
appointment of guardians and wards, visiting rights, letters of administration,
succession certificate, recovery of rent and permanent injunction. All cases under this category will have to be
disposed of within nine months.
Disposal in 12 months:
In
Track 2, cases on execution, divorce and ejectment will have to be disposed of
within 12 months.
Disposal in 24 months:
In
Track 3 and 4, Cases to be disposed in 24 months relate to partition,
declaration, specific performance, possession, mandatory injunction, appeals,
damages, easements, trademarks, copy rights, patents and intellectual property
rights.
Cases that are not in any of the three
categories are included in the fourth category and they too have to be disposed
of in 24 months. The presiding officer, however, has the right to dispose of
the case earlier.
The rules prescribe a mandatory time limit
for various court procedures such as issue of summons/notices. Proceedings
shall indicate a maximum of 30 days for filing statement or objection from the
date of service.
When cases were not disposed within the above time limits, the educated litigants lose faith and become aggressive against their own lawyers. Then it would be big problem for the lawyers to convince such litigants. Many cases held up at the preliminary stages like issuance of summons/notices, mediations and hearing on interim applications. In many cases they would be stay orders passed by Hon’ble High Courts wherein the Trial Courts unable to proceed with. Especially in Family cases they aggrieved party not getting any favourable or unfavorable order within the time frame as a result they are losing their young age and they become frustrated as they could not bear children after certain age. Thus, it has become very difficult to deal with an aggressive client and it has become a challenging job for a lawyer to remain calm and professional, even if the client is being difficult. Here are a few tips for dealing with an aggressive client:
1. Stay
calm and composed:
Even if the client is being aggressive, it's important to remain calm and professional. This will help to defuse the situation and prevent it from escalating further. To diffuse tension, try to maintain a low volume and a friendly demeanor, even if it feels difficult. Pay attention to your body language and avoid any nonverbal cues that may be interpreted as defensive or hostile, such as pacing, tapping, crossing your arms, or rolling your eyes. By being mindful of your behavior and expressions, you can help create a more positive and productive atmosphere.
2. Listen
carefully:
Allow the client to speak and express their concerns or frustrations. Listen carefully and try to understand their perspective. This will show that you are attentive and willing to help. To effectively address someone's concerns, it is important to ask appropriate questions without interrupting and to allow them to fully express their thoughts. Sometimes, simply giving someone the chance to vent can help them feel more at ease. Once they have explained the situation to you, try to confirm or summarize their concerns to ensure that you have understood them. This can help show that you are listening and can help build trust and communication.
3. Avoid
getting Defensive:
When faced with an aggressive client, it is important to avoid becoming defensive, as this can escalate the situation. Instead, strive to maintain a neutral stance and avoid engaging in a confrontation. This can help de-escalate the situation and prevent it from worsening. By remaining calm and composed, you can demonstrate your professionalism and help diffuse any negative emotions.
4. Offer
Solutions:
Once you have listened to the client and understood their concerns, try to offer solutions or suggestions that could help to resolve the issue. This will show that you are willing to help and are looking for a way to move forward. Customers often want to know that their concerns are being addressed, even if the solution is not a complete one. If you are limited in the options you can offer, avoid making unrealistic promises. Instead, be transparent about the limitations and consider involving management to show that you are committed to finding a resolution. This can help build trust and demonstrate your willingness to go the extra mile to help the customer.
5. Escalate
the issue if necessary:
If a customer's behavior becomes unmanageable or if you are unable to resolve their issue, it may be necessary to escalate the situation to a manager or supervisor. These individuals have the necessary training and experience to handle difficult situations and can help find a resolution. By escalating the issue to someone who is better equipped to handle it, you can help ensure that the customer's concerns are addressed and the situation is resolved in a professional manner.
6. Part
ways:
In some cases, it may be necessary to end a business relationship with a client, if the client continues to behave rudely or aggressively towards you or your employees. If you decide to part ways with a client, thank them for their business and remain respectful throughout the process. The client may react negatively to this news, but it is important to remain calm and professional. You have the right to choose who you work with and who you do not.
It is important to remember that every situation is unique and that the best course of action will depend on the specific circumstances. The most crucial thing is to maintain a calm and professional demeanor and to work towards finding a solution that satisfies both parties. By staying composed and focused, you can help diffuse the situation and prevent it from escalating.
References:
https://hrcentral.com.au/blog/dealing-with-aggressive-customer-behaviour/
https://www.entrepreneur.com/growing-a-business/business-how-to-handle-an-angry-client/77404
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(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