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APPOINTMENT OF JUDGES IN SUPREME COURT AND THE PRESENT ELEVATION DIRECTLY FROM THE BAR The appointment of 9 judges in the Supreme Court on August 31 comes out as very significant as it is the biggest read more
APPOINTMENT OF JUDGES IN SUPREME COURT AND THE PRESENT ELEVATION DIRECTLY FROM THE BAR
The appointment of 9 judges in the Supreme Court on August 31 comes out as very significant as it is the biggest ever number of judges whose oaths are administered in one go. It further takes the strength of judges the Apex Court to 33. Chief Justice of India (CJI) administered the oath of office to the nine new judges including, 3 women to the Supreme Court of India.
HOW ARE THE SUPREME COURT JUDGES APPOINTED AND THE HISTORY OF THE COLLEGIUM SYSTEM?
The Constitution alludes to the procedure of appointment of judges to SC and HC’s under Article 124 and 217 respectively. Both the provisions enumerated under sub-section (2) to Section 124 and sub- section (1) to section 217 provides that, the President has the power to make the appointment of judges “after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary”.
What does the word consultation imply and whether the opinion of CJI in regard to appointment of judges to the SC and HC is entitled to supremacy?
The meaning of the word “Consultation” came for the consideration for the first time before the Hon’ble court in the case of UOI v Sankal Chand Himatlal Seth 1977. It was observed that the requirement of consultation by the president from the CJI is a mandatory requirement for the appointment and transfer of judges. Consultation means full and effective consultation. For the full and effective consultation, it is necessary that the three functionaries must have full and identical facts on the basis of which they would be able to take a decision. However, the president has a right to differ from the them and take a contrary view.
In S.P Gupta v UOI 1982 (1st Judges Case), however the primacy was given to the executive in matter of appointment of judges. In case of conflict, the opinion of President would prevail over the CJI. The only ground on which this decision can be challenged is that, if it is based on mala-fide and irrelevant considerations. And for the purpose of Article 124(1) and 217(1) the word “consultation” doesn’t mean concurrence.
In a historic judgement of SC Advocates-On-Record Association V. UOI 1994(2ndjudges’ case) the aforementioned SP Gupta case was overruled by 7-2 majority and held that, in matter of appointment of judges the president is bound to act in accordance with the opinion of the CJI who would give his opinion after consulting his colleagues.
Thus, the executive element in the appointment process has been reduced to minimum and political influenced altogether was eliminated.
Again in 1999 the issue as to the expression “Consultation” arose in case of, In Re Special Reference No1 of 1998(3rd judges’ case). Then President invoked article 143 and referred the 2 main questions to the SC which related to consultation process; the issues being:
1- Whether consultation requires the consultation with plurality of judges on formation of opinion of CJI?
2- Or does the sole opinion of CJI constitute consultation?
The Apex court ruled that the CJI must consult a collegium of four senior most judges of the SC (4+1) when it comes to the appointment of SC judges and made it further clear that ‘if two judges give adverse opinion the CJI should not send the recommendation to the president. The collegium should make a decision in consensus and no recommendation should be made unless the collegium is in conformity.
While answering the reference made to the SC, it says that the expression “consultation” with the CJI in Article 217 and Article 222 requires “consultation with plurality of judges in the formation of the opinion of the CJI and the sole opinion of CJI does not constitute consultation” within the meaning of the said Articles.
Hence with this judgement SC laid down nine guidelines for the functioning of the Coram for the appointment and transfer of judges- this has come to be the present form of collegium and has been prevalent ever since.
After the 3rd Judges case by the 99th amendment act a new Article 124A was inserted which provides the composition of National Judicial Appointment Commission (NJAC) and NJAC Act 2014 was enacted, which raised the conflict as to interference of executive in matter of appointment of judges.
The validity of NJAC Act along with 99th amendment act was challenged in SC Advocate-on Record Association v. UOI 2016 (4th Judges Case) the hon’ble apex court said that NJAC act negates the primacy of judiciary and giving more power in hands of the people who might not be from a legal background and these people have the power to override the decision of CJI and the collective decision of collegiums. Subsequently their involvement curtail downs the involvement of judiciary in the process, hence with this judgement the NJAC act was struck down.
Now the opinion of CJI in deciding the appointment of judges not only have the primacy but also is determinative in nature.
Significance of this Appointment
Currently the working strength of the Apex court after the recent appointments is 33 which leaves one vacancy and this is for the first time in the Supreme Court’s history that the oath taking ceremony was held at an auditorium and not the CJI’s Courtroom Number 1.The appointment of P.S Narsimha Rao the senior advocate is direct elevation from the bar. He has served as Solicitor general of India from May 2014 to December 2018 and represented the government of India in important cases related to the Italian Marine case, NJAC case relating to appointment of judges etc. He was earlier appointed by SC to resolve the dispute pertaining the administration of BCCI in India and he also appeared for some of the parties in Ayodhya case. As per the seniority, Justice Narsimha is in line to occupy the post of CJI from October 2027 to May 2028. Current elevations are regarded as significant as for the first time there would be 4 sitting women judges in the history of the SC. Also, in Justice Nagarathna, India may see its first woman CJI in the year 2027.
The Collegium comprising Chief justice NV Raman and Justices AM Khanwilkar, DY Chandrachud, U.U Lalit and L Nageswara Rao recommended these names on August 17 and on August 26, President notified the appointment accepting all the recommendations. Last it was in September 2019 when the appointment of judges to the Supreme Court was made.
Union Of India vs Sankal Chand Himatlal Seth And .. on 19 September, 1977
Recently, a Division Bench of the Hon’ble Supreme Court of India in the case of Gumansinh alias Lalo alias Raju Bhikhabhai Chauhan and Another vs. State of Gujarat [(2021) SCC OnLine SC 660], vide its read more
Recently, a Division
Bench of the Hon’ble Supreme Court of India in the case of Gumansinh alias Lalo alias Raju
Bhikhabhai Chauhan and Another vs. State of Gujarat [(2021) SCC OnLine SC 660],
vide its Judgment dated 03-09-2021 observed that the evidentiary value of the
close relatives/family members is not liable to be rejected on the ground of
being a relative of the Deceased. As such, law does not disqualify relatives to
be produced as a witness though they may be interested witness.
One Shri. Gumansinh (‘Appellant No. 1’) and Smt. Tahera (‘Deceased’) got married on 27.04.1997. The Appellant No. 1 started constantly demanding Rs. 25,000/- from the Deceased in order to purchase buffaloes as, the Appellant No. 1 was keen on doing milk business. Due to poor financial condition, the Deceased’s father was not able to satisfy the demand of Appellant No. 1. Therefore, Appellant No. 1 frequently started beating the Deceased, while her mother-in-law (‘Appellant No. 2’) used to pick up quarrel with her on one or the other pretext.
The Deceased committed suicide on 14.12.1997 by consuming poison at her matrimonial home for the sole reason that the Deceased was unable to bear the continuous mental and physical cruelty meted out to her by the Appellants in a period of 8 months of marriage.
The father of the Deceased filed a Police Complaint, which got registered as ICR No. 34/1997 for the offences punishable under Section 498A (Husband or relative of husband of a woman subjecting her to cruelty) and Section 306 (Abetment of suicide) read with Section 114 (Abettor present when offence is committed) of the Indian Penal Code, 1860 (IPC). Charge-sheet was filed by the Police and the case went before the Learned Additional Sessions Judge for trial. Thereafter, the Appellants pleaded not guilty. During the trial, the prosecution side had examined seven witnesses, all of whom gave incriminating evidence against the Appellants in their statement under Section 313 of Code of Criminal Procedure Code, 1973 (Cr.PC). The Appellants however totally denied the case of the prosecution.
As a result, the Learned Sessions Judge, Vadodara (Trial Court) convicted the Appellants under Sections 306, 498A read with Section 114 of the IPC, vide its Judgment dated 27.07.2000.
The Appellants filed an Appeal against the Trial Court Judgment dated 27.07.2000 before the Hon'ble High Court of Gujarat at Ahmedabad (High Court). The High Court observed that the evidence produced by the prosecution clearly indicates the Deceased was subjected to mental and physical cruelty by the Appellants on the account of non-fulfillment of demand of Rs. 25,000/- and, therefore, the Judgment and Order of conviction passed by the Trial Court was confirmed. The High Court vide its Order dated 28.12.2018 convicted the Appellants under Section 498-A and Section 306 of the IPC.
Being aggrieved, the Appellant filed an Appeal before the Supreme Court against the final Order and Judgment dated 28.12.2018 passed by the Hon'ble High Court. It was contended by the Sate that all the ingredients necessary for conviction under Section 306 of the IPC stands proved with the aid of Section 113-A of the Evidence Act, 1872 as such the present Appeal deserves to be dismissed.
To read more, please visit the link below:
#supremecourt #relatives #witness #lawyered
A Two Judge Bench of the Hon’ble Supreme Court of India of Justices Dr. Dhananjaya Y. Chandrachud and M.R. Shah passed a Judgment dated 07-09-2021 in the case of Shakuntala Shukla v. State of Uttar Pradesh read more
In the present case, one Kripa Shankar Shukla alias Bajrang Shukla was found dead on 28-10-1995. An Application was moved at the Police Station and an inquest report was prepared on 15-11-1995, however, no proper investigation was done in the matter. On 13-12-1995, Shakuntala Shukla (Appellant) moved an Application before the President of India and thereafter, Special Secretary, Ministry of Home Affairs, Government of Uttar Pradesh, Lucknow directed for investigation of the matter by CB-CID. Subsequently charges were framed and the four Accused were convicted by the Trial Court for the offences under Sections 302/149, 201 r/w Section 120B of the IPC arising out of Case Crime No. 103/96, Police Station Bansdeeh, District Ballia and vide Judgment(s) and Order(s) dated 08-02-2018 and 09-02-2018 they were sentenced to undergo life imprisonment by the learned Additional Sessions Judge.
Aggrieved and dissatisfied with the Judgment and Order of conviction and sentence passed by the Trial Court imposing the sentence of life imprisonment, Criminal Appeals were preferred before the High Court.
In the Criminal Appeal No. 1283/2018, which was preferred by one of the Accused, a Criminal Miscellaneous Bail Application being Bail Application No. 1A/1 of 2018 was moved wherein a prayer was made for bail during the pendency of the criminal appeal. Subsequently, the Bail Application was allowed and vide impugned Order dated 06-12-2018, a direction was passed to release the Accused on bail on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court. The Order dated 06-12-2018 was followed and on the grounds of parity, other three Accused were also released on bail by a coordinate Bench.
Aggrieved by the impugned Order dated 08-02-2018 passed by the High Court, the Appellant preferred Criminal Appeals in the Hon’ble Supreme Court of India. After taking into consideration, the arguments advanced by the parties to the dispute, the Apex Court observed that order granting bail to the Accused pending appeal lacked clarity as to which part of the Judgment and Order can be said to be submissions and which part can be said to be the findings. The High Court did not even refer to the Counter Affidavit which was filed on behalf of the State opposing the bail pending appeal. In this regard, the Bench made the following observation:
The Two-Judge Bench of the Supreme Court has in a recent case of Dr. Harish Kumar Khurana vs Joginder Singh & Ors. passed a Judgment dated 07-09-2021, wherein, read more
In this case, Mrs. Jasbeer Kaur (Patient) was diagnosed with kidney stone in her right kidney at the Appellant Hospital on 08-10-1996. Dr. Rajeev Kumar Majumdar advised the Patient to undergo surgery. She came back to the Hospital again on 03-12-1996, when she was diagnosed with kidney stone in her left kidney as well and was further informed that the right kidney was severely damaged. So, the Patient was again advised to undergo surgery. The Patient then got admitted in the Hospital on 06-12-1996. Dr. Harish Kumar Khurana informed the Patient and her family members that surgery would be done on the kidneys one at a time due to severity of damage. Hence, left kidney would be operated first, as the chances of complete removal of right kidney were high. The Hospital obtained an informed consent for a ‘high risk surgery’ from the Patient and her husband on 09-12-1996. Dr. Harish Kumar Khurana and Dr. Rajeev Kumar Majumdar successfully operated on the left kidney, after which the Patient’s condition improved by 12-12-1996, as per the Hospital Authorities. Hence, the surgery for right kidney was scheduled for 16-12-1996. However, as soon as the Patient was taken inside the Operation Theatre and was administered certain injections, her condition deteriorated and she went into cardiac respiratory arrest. As per the Hospital Authorities, she was later put on automatic ventilator support and shifted to critical care unit, but the Patient passed away on 23-12-1996.
Thereafter, the Appellant-Hospital raised issues regarding payment of balance medical bills and later, filed a Suit for Recovery on 13-08-1997 against the Patient’s husband. But the Patient’s husband led a demonstration at the Hospital along with his co-workers on 06-02-1997 and filed a criminal complaint against the Appellant Hospital on 27-09-1997.
Thereafter, the Patient’s husband and children filed a Complaint / Petition before the National Consumer Dispute Redressal Commission (NCDRC) against the Appellant Hospital Authorities on 06-12-1997 in the matter of OP/289/1997 Joginder Singh & Ors. vs Dr. Rajeev Kumar Majumdar and Others, thereby, alleging medical negligence and claiming compensation. The Complainants alleged that the Hospital Doctors were liable for medical negligence as they did not pay heed to her poor tolerance to anaesthesia. Moreover, based on the Doctrine of Res Ipsa Loquitor, which states that a court can infer negligence from the very nature of the accident or injury, in case there is no direct evidence to show how the defendant behaved, the Doctors may be held liable for medical negligence.
On September 6, 2018, the Apex Court of India ruled that consensual homosexual acts would no longer constitute a crime. The historic move reversed Section 377 of the Indian Penal Code, 1860 which was read more
On September 6, 2018, the Apex Court of India ruled that consensual homosexual acts would no longer constitute a crime. The historic move reversed Section 377 of the Indian Penal Code, 1860 which was a legacy of British colonial rule
Today, homosexuality and queer identities may be acceptable to more Indian youths than ever before, but within the boundaries of family, home, and school, acceptance of their sexuality and freedom to openly express their gender choices remain a constant struggle for LGBT (lesbian, gay, bisexual, transgender) people.
As Section 377 of the Indian Penal Code was removed, but there is a wide gap in implementing a policy for the LGBTQ community and make a better environment for them. Right now, they are facing many issues that are underline in the below section:
Alternative dispute resolution which resolves the disputes amicably outside the court could be considered to solve the civil disputes of the LQBTQ community, because of the lack of standard court proceedings. Amidst the tedious time-consuming court procedures, the Alternate Dispute Resolution Mechanisms are boon to the fast-moving world including LGBTQ people. Speedy and disputant-friendly methods are the most significant advantages of the ADR mechanism. There are various kinds of Alternate Dispute Resolution Mechanisms such as Arbitration, Mediation, settlement conferences, neutral evaluation, Lok Adalat, etc. One such frequently adopted dispute resolution method in India is Mediation. Mediation ensures confidentiality between the parties and the mediator (impartial third party). The mediator communicates using specialized communication techniques to the disputant to resolve the issue.
Since LGBTQ issues significantly cover the relationship problems, mediation can be adopted to resolve it which happens confidentially in a closed circle. Till date, the enforceability of resolution through ADR mechanism in India is constrained with commercial disputes, which has to be reviewed to widen the scope of ADR. Since the matrimonial and the other relationship disputes are to be handled confidentially, mediation and other relevant ADR mechanisms suits well to decide on such kind of sensitive disputes.
PERMANENT CHILD CUSTODY“Legal Custody”, in a family law context, is a type of Child Custody that grants a parent the right to make long-term, important decisions regarding their children. The issue read more
PERMANENT CHILD CUSTODY
“Legal Custody”, in a family law context, is a type of Child Custody that grants a parent the right to make long-term, important decisions regarding their children. The issue of ‘Child Custody’ arises during judicial separation or divorce proceedings, where it becomes an important issue to be solved by the courts. It refers to the process of caring, controlling, and maintaining the child of age less than 18 years by the custodial parent to whom the Court has granted the rights under the decided parameters such as lifestyle, financial security, and understanding with a child etc. The major rights of nurturing the child with respect to medical, education, development physically and emotionally etc., lies with the parent having custodial rights while the non-custodial parent holds only the right to access and meet the child. Generally, both the parents are provided with the right of access to the child, but usually, the physical custody of the child is granted to one parent only. While deciding this, the Family Courts need to keep the best interests of the child paramount importance.
In India, in several innumerable cases, it has been held that the child's best interest in a case of Child Custody needs utmost importance, surpassing every legal provision laid down. The Court grants this right to child custody either to both or one of the parents under certain rules and regulations. The Law in India allows parents to seek child custody according to the below-mentioned forms:
Here, the child lives with the custodial parent and undertakes all the daily activities.
Joint Physical Custody:
In this custody, the child lives with both the parents for a significant period and both the parents have equal rights over the child.
Here, the entire right of living with the child lies with one parent only. This custody happens in cases where the other parent’s nature is either abusive, violent, unstable or incapable.
None of the biological parents has a right over the child in this custody, and the Court grants the child custody to a third person.
The battle of custody for fathers can sometimes be challenging. Despite most courts having discarded the older notions of making the mother the primary caregiver, still many persons in society still hold such notions. It is believed that, in India, no one is a better caregiver than a mother. Unfortunately, this is not true all the time. Although, while deciding the custody, the mother is given the first priority, the father can get the custody in the following ways:
Ø The father may get custody of the child if the mother is willing to give up the custody.
Ø If the mother is mentally unstable, then the father is the next person who will get the c child custody.
Ø If the child is above the age of 13 years and expresses his wish to stay with the father, the Court shall grant custody to the father.
Ø The father will get custody in situations where the mother has an immoral character that may affect the child.
Ø If the father proves that the mother is financially incapable, that may affect the child's future upbringing and might not take proper care of the child.
Ø If the father proves that the mother has a dark background and if the child stays with her, it will prove to be fatal to the upbringing of the child and may even affect his mental and physical growth.
Ø The custody of the child will go to the father if the mother is a convict herself.
In Sanju V. Sobhanath, the Allahabad High Court gave the Father custody of the child because he has a better financial condition than the mother. But the points as mentioned above are not exhaustive as it varies depending on facts and circumstances in different cases.
In Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (May 6, 2019), The Supreme Court observed that, in determining the issue of custody of a minor child, the paramount consideration is the `welfare of the child' and not the rights of the parents under the statute for the time being in force. But the welfare of the child should not be measured by money nor merely by physical comfort. The word ‘welfare’ must be considered in its widest sense. The religious or moral welfare of the child, the physical well-being and the tie of affection. If the custody is not granted to the respondent (father), the court would be depriving both the child and the father of each other’s entitled love and affection and since the child is in tender age of 1½ years, her choice cannot be ascertained at this stage. It was observed that the father was the child's natural guardian, and he would be entitled to the custody of the child, and the appellants had no legal right to the custody of the child. Thus, the respondent (father), was entitled to the custody of the child since the child needs care and affection of the father.
Here, the question arises whether a father can fight for a Child’s Custody if his name is not on the Birth Certificate?
The father’s name is listed on a birth certificate or not can have a significant impact on his custody rights. In most cases, if the person’s name has been listed as the child’s father on his birth certificate, courts will conclude without question that he is the child’s legal father. The father will then be granted various custody rights considering to be the legal father of the child. In many cases, if the person is not the child's biological father, but if his name is listed as the child’s father on the birth certificate, courts may still grant him custody rights. The Court may also impose various duties on him, such as paying for the child support if this arises in the future. But if the father’s name is not listed on the child’s birth certificate, the Court may often not grant any custody rights over the child to the father, be it partial or full custody. If he wishes to gain legal rights and is also the child's biological father, he will have to undergo a paternity test to prove to the Court that he is the biological father.
The custody battle can be difficult to win for a father, although the courts do not discriminate against fathers. Whether a father is going for the full custody or joint custody, he should be prepared for difficult child custody combat, especially in cases where the child's mother is also fighting for custody. For a father to get custody, he should timely pay all the payments for child support, build a strong relationship with him, give him respect and also to the mother. The father must maintain accurate records attending all-important school and social gatherings to make sure everything he is doing provides a good life to his child. A child is mostly attached with his mother, so when a father decides to have custody, he must think about the child’s wish as well and what would be good for his life because custody battles are already traumatic and an exhausting experience for a child to go through. In the case of Y. Varlakshmi V. Y. Kanaka Durga Prasad, the Andhra Pradesh High Court observed that the child was happy with the father, so he was given custody. Therefore, the first priority of a father must be to make sure that everything he is doing for his child is to provide him happiness and a good life.
VALIDITY OF AN UNREGISTERED SALE AGREEMENTA Sale Agreement constitutes all the terms and conditions of the sale of a property (movable or immovable) to the buyer. Under the Indian Registration Act, 1908, read more
VALIDITY OF AN UNREGISTERED SALE AGREEMENT
A Sale Agreement constitutes all the terms and conditions of the sale of a property (movable or immovable) to the buyer. Under the Indian Registration Act, 1908, an agreement for the transfer of rights of immovable property of value more than Rs. 100/-, is required to be registered. Section 54, under the Transfer of Property Act, 1882, defines Sale as a transfer of ownership for a price and in case of transfer of immovable property of a value exceeding One Hundred Rupees, can be done only through a registered instrument. This is important to note that Section 54 only mandates registration of the sale deed, i.e., only the instrument that helped in the sale of the property but does not mandate the registration of Agreement to Sale (ATS). An unregistered sale deed without the delivery of property will not be enough since the document must be registered. Thus under Section 54, such an unregistered sale deed, although valid under the Registration Act, will not be able to confer the title on the purchaser.
Unregistered Sale Agreement is enforceable in Law, and any shortage of stamp charges can be paid through the Court’s order. Such an agreement will be valid for three years from the execution date. In case of a negative clause in the agreement, for instance, it is mentioned in the agreement that the buyer has to get the property registered within three months, then the limitation period is extended by such a period. It is in the party’s interest to comply with the following negative clauses that may favour him in the agreement:
Ø In an unregistered sale deed, the party has to issue a revocation notice for cancellation of agreement despite the agreement being cancelled because of flux in time to cancel the agreement validly.
Ø This depends on the clauses framed in the agreement, but it is advisable to refund the advance taken.
In case a document is not accompanied by delivery of possession but is executed for the sole purpose of conveying the property, it is necessary that the document is registered since a registered document is not compulsory to be accompanied by the delivery of possession. Here the question arises, in the case where there is an unregistered instrument and delivery of possession, whether the transferee who is claiming to refer to both will not fall back on that delivery of possession. The purchaser might have his claim on the title, preceding the execution of the oral agreement to sale, which is unregistered, and the delivery of possession. Since the delivery of possession is considered part of the sale transaction, the registered sale deed can be a surplus, and the delivery of possession will be sufficient to confer the title.
Therefore, the conditions mentioned under Section 54 must be fulfilled if the delivery of property takes place. The formalities stated under Section 54 are:
Ø During the sale of an immovable property, whose value is Rs. One hundred or above, the sale deed has to be registered.
Ø If the value is less than Rs. 100, this may be either by a registered deed or by delivery of property because the aim is to give publicity to the respective transaction.
There should be no vitiation of the transaction, on the sole ground that there was no proof of oral agreement, which was accompanied by the delivery of possession preceding the execution of the unregistered sale deed where the property is delivered. If the oral sale is there along with the delivery of possession, then the transaction is regarded as complete.
In the case of 'Mahomed Yaouoob Ally v. Chhotey Lal', AIR 1939 Pat 218, it was held that the sale of an immovable property whose value is below Rs. 100, through an unregistered sale deed, it is not mandatory that the delivery of possession be co-existent with the execution of the sale deed. Thus, the sale would be valid even if delivery of possession of the property is in pursuance of the sale deed after its execution. Even in the case cited, 'AIR 1937 Mad 265', it was held that if the sale is for less than Rs. 100, the non-registration will not be consequential to the validity of the transfer if the transferee is able to set up an oral sale, and the delivery of possession will be in fulfilment thereof. Therefore it can be regarded as independent of the other. Consequently, it is necessary to file a suit to get the deed registered through court.
Recently, the Supreme Court upheld a Trial Court order that allowed the plaintiff to file the suit on evidence of the insufficiently stamped and unregistered agreement of sale for the recovery of money that has to be paid by him during the execution of the Agreement for Sale.
The major issue before the Supreme Court was whether an unregistered sale agreement could be viewed for collateral purposes under Section 49 of the Registration Act of 1908. The bench was considered the appeal against the High Court of Madhya Pradesh, set aside the order by the Trial Court, referring to Avinash Kumar Chauhan v. Vijay Krishna Mishra judgment.
Justice Navin Sinha and Justice BR Gavai, in Prakash Sahu vs Saulal, noted that the Trial Court had referred to the judgment in S. Kaladevi vs V.R. Somasundaram to allow the plaintiff to lead evidence on an insufficiently stamped document. In this judgment, it was held that:
· A document necessary to be registered, if it is unregistered, will not be admissible as evidence as per Section 49 of the 1908 Act.
· Such an unregistered agreement can still be used as evidence for collateral purposes as per the proviso mentioned under Section 49 of the Registration Act of 1908.
· The collateral transaction must be independent of the transaction to give effect to the law that is required to be registered.
· A collateral transaction should be a transaction that is not itself required to be effected by a registered document but is a transaction that creates any right, or title or interest in the immovable property of value of one hundred rupees or above.
· If a document is inadmissible as evidence for want of registration, then none of its terms can be admitted as evidence, and to use a document for proving an important clause will not be used as a collateral purpose.
· An agreement required to be registered, if it is unregistered, can be admitted as evidence of the contract for a suit of specific performance.
Earlier, the industry practice was that in case of absence of the legal provision, an Agreement to Sale of an immovable property, which is executed between the individuals that may be developers or allotters, was not registered. Since there was no mandate by the law for registration, the Agreement to Sales also did not face the consequences, according to Section 49 of the Registration Act. But, subsequently, the courts, especially the consumer foram, gave effect to such an unregistered Agreement to Sales.
However, as per the current legal scenario, a non-registered document that is mandatory to be registered has serious consequences since the party seeking its enforcement will not be able to rely on the document to prove its contents. This process may deprive the party of enforcing their contract.
India though one of the world’s largest democracies, does not possess proper legislation to protect the privacy of its citizens. A draft of the new law - “Personal data protection” (PDP) was introduced read more
India though one of the world’s largest democracies, does not possess proper legislation to protect the privacy of its citizens. A draft of the new law - “Personal data protection” (PDP) was introduced in 2018. Post the Supreme Court’s ruling in 2017, which classified privacy as a fundamental right (concerning about Aadhaar), the Government took a step towards forming stricter data protection and privacy laws in India. The 2018 Bill underwent few changes and the 2019 version was passed in the cabinet and still waiting for its enactment.
The PDP 2019 bill is meant to regulate how various companies and organizations use the data of their citizens outside and inside India. The bill proposes the formation of a Data Protection Authority (DPA), which would regulate the use of users’ data by social media companies and other organizations. It is also expected to set data localization norms for companies that retain user data.
OBLIGATION OF DATA FIDUCIARY
The data fiduciary is obliged to obtain the consent of the individuals before processing the data. The data obtained should be used for some lawful purpose. The individual’s data should be properly safeguarded i.e., encrypted by the fiduciary. They must also institute mechanisms for age verification and parental consent when processing sensitive personal data of children.
GROUNDS FOR PROCESSING OF DATA WITHOUT CONSENT
The data of citizens can be processed without the consent on the following aspects
1. to comply with any order or judgment of any Court or Tribunal in India
2. to respond to any medical emergency involving a threat to the life or a severe threat
3. to undertake any measure to ensure safety
4. any public interest in processing for that purpose
RIGHTS OF DATA PRINCIPAL
The data principal shall by regulations, have the right to— (a) the correction of inaccurate or misleading personal data; (b) the completion of incomplete personal data; (c) the updating of personal data that is out-of-date; and (d) the erasure of personal data which is no longer necessary for the purpose for which it was processed.
DATA TRANSFER OUTSIDE INDIA
Personal data shall be transferred outside India for the purpose of processing it but only after the consent of the individuals. The applicability of the bill is extra-territorial, which means that it seeks to protect the data of not only Indian citizens but any data principal within the territory of India whose data is being processed by Indian companies or MNCs situated in India or outside.
The central government may exempt its agency from the regulations of this legislation in the interest of the security of the state, public order, sovereignty and integrity of India and friendly relations with foreign states, and for preventing incitement to the commission of any cognizable offenses.
PENALTIES AND COMPENSATION
Offenses under the Bill include: (i) processing or transferring personal data in violation of the Bill, punishable with a fine of Rs 15 crore or 4% of the annual turnover of the fiduciary, whichever is higher, and (ii) failure to conduct a data audit, punishable with a fine of five crore rupees or 2% of the annual turnover of the fiduciary, whichever is higher. Re-identification and processing of de-identified personal data without consent are punishable with imprisonment of up to three years, or fine, or both.
INFORMATION TECHNOLOGY ACT, 2000
Sections 43A and 72A of Information Technology Act, 2000, and Information Technology Rules, 2011initiates data protection. Section 43A talks about compensation on the failure to protect data while section 72A deals with punishment for disclosure of information in breach of lawful content.
Under Section 72A imprisonment is for a term which may extend to three years or with a fine which may extend to Rupees Five Lakh or both. The Information Technology Rules, 2011 insists on the consent of the individual before disclosing information.
Whereas the PDP Bill 2019 covers the entire scenario of data protection which is the need of the hour.
Many developed countries have enacted data protection laws to ensure the data privacy of their citizens. But in India, a country with second largest population does not possess enough legal resource to penalize the illegal data sellers. Digital India and other movements adopted by Indian government cannot be achieved without enforcing the Data protection legislation.
The Phone Numbers of Over 40 Indian Journalists Hacked, Snooped & Put Under Surveillance. Forensic Tests Have Confirmed, As Per the Wire. The news has made a great upheaval in the mind of the people read more
The Phone Numbers of Over 40 Indian Journalists Hacked, Snooped & Put Under Surveillance. Forensic Tests Have Confirmed, As Per the Wire. The news has made a great upheaval in the mind of the people of India.
Now in India, Right of Privacy Is a Fundamental Right. There Are Section 5(2) Of Indian Telegraph Act and Section 69, 69a and 69 B Of Information Technology Act Which Provides Lawful Interception. One Enquiry Is Highly Required If the Allegation Is True. In this regard matters are pending before the Hon’ble Court of India praying for a Court monitored enquiry.
What is Lawful Interception:
· INFORMATION TECHNOLOGY (INTERMEDIARIES GUIDELINES) RULES, 2011.
· SECTION 69 OF IT ACT: POWER TO ISSUE DIRECTIONS FOR INTERCEPTION OR MONITORING OR DECRYPTION OF ANY INFORMATION THROUGH ANY COMPUTER RESOURCE.
· SECTION 69A OF IT ACT: POWER TO ISSUE DIRECTIONS FOR BLOCKING FOR PUBLIC ACCESS OF ANY INFORMATION THROUGH ANY COMPUTER RESOURCE.
· SECTION 69A OF IT ACT. Power to authorize to monitor and collect traffic data or information through any computer resource for Cyber Security.
· INFORMATION TECHNOLOGY (PROCEDURE AND SAFEGUARD FOR MONITORING AND COLLECTING TRAFFIC DATA OR INFORMATION) RULES, 2009.
· The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
· Section 5 of Indian Telegraph Act : 5(2): On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order
· Rule 419A of the Indian Telegraph Rules
Maharashtra v. Bharat Shanti Lal Shah & others
In State of Maharashtra v. Bharat Shanti Lal Shah & others ((2008) 13 SCC 5) the Hon’ble Court observed “The interpretation of conversation though constitutes an invasion of an individual right to privacy but the said right can be curtailed in accordance with procedure validly established by law. Thus, what the Court is required to see is that the procedure itself must be fair, just and reasonable and non-arbitrary, fanciful or oppressive.”
In the present scenario, we Badly Need the Data Privacy Act That Is the Data Privacy Bill, 2019 Should Be Converted into Act at The Earliest.
A Two Judge Bench of the Hon’ble #SupremeCourt of India comprising of Justices Dr Dhananjaya Y Chandrachud and M R Shah passed a #Judgment dated 20-07-2021 in the case of Sayyed Ayaz Ali v. Prakash G read more
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By registering yourself with SoOLEGAL, it is understood and agreed by you that the Terms and Conditions under the Transaction Services Terms shall be binding on you at all times during the period of registration and notwithstanding cessation of your registration with SoOLEGAL certain Terms and Conditions shall survive.
"Your Transaction" means any Transaction of Documents/ Advices(s), advice and/ or solution in the form of any written communication to your Client made by you arising out of any advice/ solution sought from you through the SoOLEGAL Site.
The SoOLEGAL Payment System Service ("Transacting on SoOLEGAL") is a Service that allows you to list Documents/ Advices which comprise of advice/ solution in the form of written communication to your Client who seeks your advice/ solution via SoOLEGAL Site and such Documents/ Advices being for Transaction directly via the SoOLEGAL Site. SoOLEGAL Payment Service is operated by Sun Integrated Technologies and Applications . TheSoOLEGAL Payment System Service Terms are part of the Terms & Conditions of SoOLEGAL Services Transaction Terms and Conditionsbut unless specifically provided otherwise, concern and apply only to your participation in Transacting on SoOLEGAL. BY REGISTERING FOR OR USING SoOLEGAL PAYMENT SYSTEM , YOU (ON BEHALF OF YOURSELF OR THE FIRM YOU REPRESENT) AGREE TO BE BOUND BY THE TRANSACTIONS TRANSACTION TERMS AND CONDITIONS.
Unless otherwise defined in this Documents/ Advice or Terms & Conditions which being the guiding Documents/ Advice to this Documents/ Advice, all capitalized terms have the meanings given them in the Transactions Transaction Terms and Conditions.
S-1. Your Documents/ Advice Listings and Orders
S-1.1 Documents/ Advices Information. You will, in accordance with applicable Program Policies, provide in the format we require. Documents/ Advices intended to be sold should be accurate and complete and thereafter posted through the SoOLEGAL Site and promptly update such information as necessary to ensure it at all times that such Documents/ Advices remain accurate and complete. You will also ensure that Your Materials, Your Documents/ Advices (including comments) and your offer and subsequent Transaction of any ancillary Documents/ Advice pertaining to the previous Documents/ Advices on the SoOLEGAL Site comply with all applicable Laws (including all marking and labeling requirements) and do not contain any sexually explicit, defamatory or obscene materials or any unlawful materials. You may not provide any information for, or otherwise seek to list for Transaction on the SoOLEGAL Site, any Excluded Documents/ Advices; or provide any URL Marks for use, or request that any URL Marks be used, on the SoOLEGAL Site. In any event of unlawful Documents/ Advices made available for Transaction by you on SoOLEGAL site, it is understood that liabilities limited or unlimited shall be yours exclusively to which SoOLEGAL officers, administrators, Affiliates among other authorized personnel shall not be held responsible and you shall be liable to appropriate action under applicable laws.
S-1.2 Documents/ Advices Listing; Merchandising; Order Processing. We will list Your Documents/ Advices for Transaction on the SoOLEGAL Site in the applicable Documents/ Advices categories which are supported for third party REGISTERED USERs generally on the SoOLEGAL Site on the applicable Transacting Associated Properties or any other functions, features, advertising, or programs on or in connection with the SoOLEGAL Site). SoOLEGAL reserves its right to restrict at any time in its sole discretion the access to list in any or all categories on the SoOLEGAL Site. We may use mechanisms that rate, or allow users to rate, Your Documents/ Advices and/or your performance as a REGISTERED USER on the SoOLEGAL Site and SoOLEGAL may make these ratings and feedback publicly available. We will provide Order Information to you for each of Your Transactions. Transactions Proceeds will be paid to you only in accordance with Section S-6.
S-1.3 a. It is mandatory to secure an advance amount from Client where SoOLEGAL Registered Consultant will raise an invoice asking for a 25% advance payment for the work that is committed to be performed for the Client of such SoOLEGAL Registered Consultant. The amount will be refunded to the client if the work is not done and uploaded to SoOLEGAL Repository within the stipulated timeline stated by SoOLEGAL Registered Consultant.
b. SoOLEGAL Consultant will be informed immediately on receipt of advance payment from Client which will be held by SoOLegal and will not be released to either Party and an email requesting the Registered Consultant will be sent to initiate the assignment.
c. The Registered Consultant will be asked on the timeline for completion of the assignment which will be intimated to Client.
d. Once the work is completed by the consultant the document/ advice note will be in SoOLEGAL repository and once Client makes rest of the payment, the full amount will be remitted to the consultant in the next payment cycle and the document access will be given to the client.
e. In the event where the Client fails to make payment of the balance amount within 30 days from the date of upload , the Registered Consultant shall receive the advance amount paid by the Client without any interest in the next time cycle after the lapse of 30 days.
S-1.4 Credit Card Fraud.
We will not bear the risk of credit card fraud (i.e. a fraudulent purchase arising from the theft and unauthorised use of a third party's credit card information) occurring in connection with Your Transactions. We may in our sole discretion withhold for investigation, refuse to process, restrict download for, stop and/or cancel any of Your Transactions. You will stop and/or cancel orders of Your Documents/ Advices if we ask you to do so. You will refund any customer (in accordance with Section S-2.2) that has been charged for an order that we stop or cancel.
S-2. Transaction and Fulfilment, Refunds and Returns
S-2.1 Transaction and Fulfilment:
Fulfilment – Fulfilment is categorised under the following heads:
1. Fulfilment by Registered User/ Consultant - In the event of Client seeking consultation, Registered User/ Consultant has to ensure the quality of the product and as per the requirement of the Client and if its not as per client, it will not be SoOLEGAL’s responsibility and it will be assumed that the Registered User/ Consultant and the Client have had correspondence before assigning the work to the Registered User/ Consultant.
2. Fulfilment by SoOLEGAL - If the Registered User/ Consultant has uploaded the Documents/ Advice in SoOLEGAL Site, SoOLEGAL Authorised personnel does not access such Documents/ Advice and privacy of the Client’s Documents/ Advice and information is confidential and will be encrypted and upon payment by Client, the Documents/ Advice is emailed by SoOLEGAL to them. Client’s information including email id will be furnished to SoOLEGAL by Registered User/ Consultant.
If Documents/ Advice is not sent to Client, SoOLEGAL will refund any amount paid to such Client’s account without interest within 60 days.
3. SoOLEGAL will charge 5% of the transaction value which is subject to change with time due to various economic and financial factors including inflation among other things, which will be as per SoOLEGAL’s discretion and will be informed to Registered Users about the same from time to time. Any tax applicable on Registered User/ Consultant is payable by such Registered User/ Consultant and not by SoOLEGAL.
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 (email@example.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.
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
Category and Documents/ Advice Restrictions
Certain 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.
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.
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.
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 –
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
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.
following list of prohibited Documents/ Advices comprises two
sections: Prohibited Content and Intellectual Property
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.
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