In today’s fast-growing world from the moment we wake up to the moment we go to sleep our lives are governed by the set of expectations we have as a result of the explicit and implicit agreements between us and others. When a business is entering into a commercial contract often, it is considered a sign of success, but on the other side, it is significant to understand that if we/business enter into agreements with another individual/business we/it will have important obligations to fulfil in return for any rewards that we/it might receive. So before any commercial agreement is finally signed all the parties involved should invest a considerable amount of time and effort in the process of contract drafting. Drafting a contract or an agreement may be defined as the combination of facts and law in a language form. It is a known fact that perfection in legal drafting cannot be achieved unless the nexus between law, facts and language is fully understood. In simple words, drafting can be described as the practice, technique or skill involved in preparing legal documents that set forth the right of the parties. In this article, we will discuss the importance of clauses in a contract as well as the most important clauses to be kept in mind while drafting a commercial agreement.
Importance of clauses in any contract
Before we engage in the importance of clauses in contracts and agreements it is necessary to clarify the meaning of clauses in relevance to contracts and agreements. So a clause is a particular provision in a legal agreement that relates to an important point of understanding between the parties engaged in the contract. Clause dictates certain conditions under which the parties agree to act during the course of the contract.
Clauses in contracts play a major role in laying out certain conditions under which parties agree to the terms of the contract. Directions are also provided in the enforcement of contracts under different events and conditions. Other major purposes served by the clauses are:
They provide structure much like the outline in a textbook and thus promote understanding of the contract’s purpose.
They assist with navigation as some business contracts are extremely lengthy, with the help of clauses one can locate a specific provision buried deep within the agreement.
They promote Ease of Use and simplify drafting as there are many common contract provisions in an agreement, the use of separate clauses makes it easier to locate and reuse the provisions.
They provide severability as sometimes parties to a contract agree that even if one or more provisions fail, the remainder of the contract will be honoured. The cautionary use of clauses serves the purpose of separating out provisions about which the parties have any concerns.
Clauses to be kept in mind while drafting any commercial agreement
Contracts and Agreements are used in almost every industry and field, and many of the contract provisions are common to all industries. There are many clauses in a contract that are almost certain to appear in every contract which is drafted and the same is true in commercial contracts and agreements.
Before we get into the most important clauses one thing that needs to be clearly stated is the identification of all the parties. The names of individuals/businesses and their contact information must be included within the contract/agreement. There should never be any ambiguity as to who is subject to the contract/agreement. Below we will discuss some clauses that are very essential to form a sound contract/agreement and they must be kept in mind while drafting various commercial contracts/agreements:
Definition clause
A definition clause as the name suggests is used to define terms used in the legal agreement in plain language to avoid any confusion between the parties as it reduces the chances of misinterpreting any part of the contract. A well-drafted definition clause contains as many or as few contract definitions as necessary as they can affect the outcome of the relationship and any potential disputes that may arise between the parties.
The purpose of a definition clause is to clearly define contract-specific terms as it provides aid in future risk mitigation. When all parties understand expectations clearly, it’s easier to meet them.
Confidentiality clause
Confidentiality clauses prevent the signing parties from disclosing any sensitive information, personally identifiable information, or trade secrets. As when two or more firms enter into a contract, there will almost be a considerable amount of details exchanged to fulfil contractual obligations. To safeguard the interests of all the parties, the contract must have a strict confidentiality clause. These protections are for documents and can be as well as for verbal communications as negotiated by the parties depending upon the scope and obligations of an agreement.
The purpose of a confidentiality clause is to protect the trade secrets and sensitive information of a company. In the event of a breach of this clause, the company may file a damage claim against someone who disclosed critical details to someone, whether they planned to exploit the information or not. The need for confidentiality clauses has arisen much more due to the cut-throat competition among businesses regardless of industry. The Confidentiality clause can be created in two ways which are as follows:
The one-sided confidentiality clause limits only one party from disclosing any information about the other party.
The mutual confidentiality clause limits both or all the parties involved in the agreement from disclosing specific information about other parties.
Jurisdiction clause
A jurisdiction clause is a very common clause in business agreements as it basically states that the parties involved in a contract have the right to settle legal disputes through adjudication. When the parties to a contract are from different nations or even states, it can be difficult to determine a specific court to resolve disputes if any arise.
When the parties involved in a contract wish to have any disputes that may arise concerning their agreement to be adjudicated by a specific court, the need for a jurisdiction clause arises. A major benefit of the jurisdiction clause is when a party submits to the authority of a court in a specific jurisdiction, the argument that the venue of adjudication is not appropriate is out of the question.
It is to be noted that inconvenience and uncertainty is the possible consequence of a jurisdiction clause not being present. This consequence can lead to delays and higher costs involved in the court proceedings. Jurisdiction is generally categorised in the following ways:
Exclusive Jurisdiction: Under this type of jurisdiction, it is only the specified courts who have the authority to adjudicate a dispute.
Non-Exclusive Jurisdiction: Non-exclusive jurisdiction means that a case may be decided by courts which are not specifically mentioned in the jurisdiction clause.
Governing law clause
As clear by the name itself, the governing law clause declares the laws that govern the transaction in case a dispute arises. They are standard clauses found in business contracts and transactions specifically when the parties involved belong to two different nations. The governing law clauses are also commonly known as choice of law clauses.
A governing law clause can be found consistently in contracts and legal agreements between companies and their users. We can typically find these clauses in Standard Terms and Conditions agreements for websites or mobile applications. This clause is significant as when there is no governing law clause in a contract, then the court will decide and it may result in a catastrophic outcome for the parties.
Dispute resolution clause
A dispute resolution clause clearly lays out how the parties intend to resolve any disputes that may arise from their business contract. Even the most carefully written contracts are prone to disagreement, hence it is of utmost importance to clarify parties’ plans for dispute resolution in the event that an issue arises. A dispute resolution clause is important in every contract as with its help the issue at hand is resolved quickly, inexpensively and off the public record as opposed to conventional ways of legal redressal. In a dispute resolution clause, the parties put down strategies for resolving disputes with mutual consent before the contract or agreement is signed.
Methods of Dispute Resolution are as follows:
Negotiation: This is the least formal type of dispute resolution. With the help of the neutral third party, negotiation allows the parties in dispute to come to a consensus on their own.
Mediation: This is the second least formal type of dispute resolution. The main difference between negotiation and mediation is that the latter involves a professional mediator as the neutral third party.
Arbitration: This is the most formal and most famous type of dispute resolution. It is conducted by professional arbitrators and the parties must follow the rules in their arbitration agreement. The outcome of an arbitration is usually binding, meaning the parties generally can’t initiate litigation after arbitration and they must follow the directions given by the arbitrators.
Force Majeure
The phrase Force Majeure literally translates into “greater force”. This clause should always be included in all commercial contracts because it shields parties from events that are beyond their control such as earthquakes or hurricanes, etc. A force majeure clause triggers when extraordinary circumstances take place. The Force Majeure clause allows a party to leave a contract temporarily or permanently, in whole or in part, for catastrophes that were not foreseeable. If the catastrophic event meets the terms of the force majeure clause, both parties can end the agreement.
The major purpose of the force majeure class is to release a party when they can no longer fulfil the obligations, usually due to a severe, unforeseen event. Without a force majeure clause, parties would have to turn to common law doctrines to protect themselves but that would amount to a waste of time, energy and money. In general, the term “force majeure” is very broad, and may cover various events but the most common ones are as follows:
Acts of God: hurricanes, tornadoes, tsunamis, typhoons, pandemics and earthquakes, etc.
War, explosions, strikes, lockdowns, lockups, or a prolonged shortage of energy supplies, etc.
Government action limiting or prohibiting any party from performing its contractual obligations.
Limitation on liability clause
In simple words, the limitation on liability clause limits the amount a party has to pay to the other party if the latter suffers losses due to breaches or performance failures in a business contract. It puts a cap on the number and types of compensation one party can recover from the other. The limitation of liability clause may apply to the entire business arrangement or may be limited to only certain breaches or failures, depending on the parties’ agreement.
This clause typically covers losses caused by the following:
Negligence: One of the parties fails to meet a reasonable duty of care and causes harm to someone.
Breach of contract: A party fails to fulfil its contractual obligation.
Infringement of intellectual property rights: One of the parties infringes on the others’ intellectual property rights (i.e., patent, copyright, design right, or trademark).
Misrepresentation: A party makes a false statement that misrepresents an aspect of the contract, such as the quality of the products they’re selling.
Severability clause
Synonymous terms for the severability clause are salvatorious, severability and survival clause. This clause allows the remaining terms of a contract or piece of legislation to continue in effect even if one or more of its other terms or provisions are judged to be unenforceable or unlawful.
The severability clause keeps the contract intact, as the parties continue to meet the terms outlined in the enforceable section rather than ending an agreement based on single actions. In the absence of a severability clause, a judge or jury has the right to void the agreement. Otherwise, they enforce the remainder.
A severability clause in a contract states that its terms are independent of one another so that the rest of the contract will remain in force, should a court declare one or more of its provisions void or unenforceable. Preserving the remaining valid parts of a contract is the main purpose of a severability clause when a part or parts of an agreement becomes unenforceable or illegal.
Termination clause
Termination clauses, commonly referred to as severance clauses, permit parties to end an agreement early or mutually without violating the terms of the contract. Similar to in business, things frequently do not go as expected, thus parties must be able to separate themselves whenever the need arises.
The termination clause specifically states the circumstances under which one or all the parties may terminate the contract, irrespective of the time left under the agreement. The purpose of the termination clause is to provide guidance and set the terms and conditions surrounding a contract cancellation that doesn’t result in penalties. Incorrect use of termination clauses may result in a legal conflict as general contract principles still apply regardless of the terms and conditions.
Conclusion
Above we have discussed the most important clauses that must be kept in mind while drafting various commercial agreements. These clauses act as the backbone of any commercial agreement and protect all the parties by providing clarity and eliminating vagueness in the contracts and agreements, hence, finishing off any misunderstandings that may arise between them.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article is written by Parul Chaturvedi from Dr R.M.L Law College, Bangalore and Mahesh P Sudhakaran. In this author talks about Section 59 the remedies available for breach of warranty under the Sales of Goods Act, 1930 and key aspects pertaining to legality of breach of warranty in India and the jurisprudence behind the same.
In 1930, the Indian Contract Act of 1872 governed transactions involving the sale and purchase of goods. The Indian Contract Act of 1872 repealed the provisions of Sections 76 to Sections 123 and passed the Indian Sale of Goods Act 1930. A new act has been passed, the parties consider a contract as an agreement and provide legally applicable and binding obligations. The contract law governs their respective agreements in various countries. In the event of a breach of such contracts, remedies are available to the contracting parties, liquidated and unliquidated. The current analysis concerns damages to buyers under Indian law and the buyer’s remedies to the Seller in the case of breach of warranty, as mentioned in the Sale of Goods Act, 1930.
Warranty law ultimately aims to strike a balance between the interests of consumers and sellers. From a jurisprudential standpoint, the concept of warranty serves the following purposes:
Consumer protection
Risk allocation
Redressal in case of breach
Promoting fair trade
Imposing certainty in contracts
The development of warranty as a legal concept can be traced back to its presence in English common law. The legal framework with regard to warranty can be found in land-based transactions and feudal systems in Medieval England. Feudal lords were known to grant lands based on certain conditions, and in return, the landlords ensured warranty in terms of possession of the land and certain other rights. In a scenario wherein a vassal’s rights were infringed upon, the lord would be obligated to provide redress. With time, the concept of a warranty underwent development and expanded. This included the sale of goods as well, and this growth can be attributed to mercantile practices and the development of trade and commerce.
The Indian jurisprudence of this concept is influenced by both ancient practices and colonial rule in India. Back in ancient India, legal systems such as Dharma Shastra and Manusmriti accommodated the concept of warranties in the context of sales and other commercial transactions. These texts laid down certain principles and guidelines to ensure fair trade and justice.
Overview of warranty related laws in India
The purchase or sale of goods and services ipso facto forms a contract. These types of contracts were earlier part of the Indian Contract Act, 1872. Now, they fall under the ambit of the Sale of Goods Act, 1930. Despite being under the purview of a different Act, these types of contracts are, by principle, still governed by the rules laid down in the Indian Contract Act. When the purchase or sale of a good or service is carried out, both the buyer and the seller agree to abide by certain terms and obligations. These terms and obligations form the very basis of the agreement and can be of two types:
Conditions: A condition is the basis or foundation of the whole contract and is a paramount part of performing the contract. The breach of the conditions entitles the aggrieved party to treat the contract as repudiated.
Warranty: A warranty is an additional stipulation or a written guarantee that is collateral to the main purpose of the contract and provides the consumer with a certain degree of assurance with regard to certain aspects of the product or service.
Warranty laws in India play a significant role in protecting the rights of consumers and regulating the sale of goods. These laws provide legal recourse for buyers in cases of breach of warranty by sellers or manufacturers. Understanding the legal framework surrounding warranties is essential for both consumers and businesses involved in commercial transactions. In India, the primary legislation governing warranties is the Sale of Goods Act, 1930. This Act outlines the rights and obligations of buyers and sellers in the sale of goods, including provisions related to warranties. Additionally, the Indian Contract Act, 1872, which is the overarching legislation governing contracts, also contains provisions relevant to warranties.
Moreover, the recent enactment of the Consumer Protection Act, 2019, has further strengthened the legal framework for consumer protection in India. Although this Act is not specific to warranties, it introduces provisions that are relevant to the rights and remedies available to consumers in cases of breach of warranty. Collectively, warranty laws in India fall under the purview of the following acts:
Indian Contract Act, 1872
Sale of Goods Act, 1930
Consumer protection Act, 2019
Indian Contract Act, 1872
The Indian Contract Act establishes the framework for contractual obligations and ensures that parties comply with the terms and conditions they mutually agree upon. A warranty, as an additional stipulation, provides assurance to one party regarding a crucial aspect of the contract. It is important to note that a breach of warranty can lead to a breach of the entire contract. While the Indian Contract Act may not specifically address breach of warranty, the fundamental principles within the Act govern the unlawful breach of any contractual obligation, including warranties. When a party fails to fulfil a warranty, they are essentially violating the terms agreed upon in the contract, thus breaching their contractual obligation.
Several provisions of contract law are infringed when a breach of warranty occurs. Firstly, there is a violation of the principle of “consensus ad idem,” or mutual agreement, as the breaching party deviates from the agreed-upon terms. Secondly, the principle of “privity of contract” is affected, as the non-compliance with the warranty directly impacts the rights and expectations of the other party involved. Additionally, the principle of “remedies for breach of contract” comes into play. When a breach of warranty occurs, the non-breaching party has the right to seek appropriate remedies, such as damages or specific performance, as provided by the Indian Contract Act. These remedies aim to compensate for any losses suffered due to the breach and restore the injured party to the position they would have been in had the breach not occurred. Although the Indian Contract Act may not explicitly address breach of warranty, the underlying principles within the Act, in essence, govern and restrict individuals from unlawfully breaching their contractual obligations.
Sale of Goods Act, 1930
Under the Sale of Goods Act, breach of warranty refers to a situation where the seller fails to fulfil the obligations and assurances provided regarding the quality, performance, or condition of the goods sold. Warranties are additional stipulations that complement the essential terms of the contract.
Types of Warranties:
The Sale of Goods Act recognizes two primary types of warranties:
a) Express Warranty: An express warranty refers to any specific promise, affirmation, or representation made by the seller concerning the goods. These warranties can be conveyed orally or in writing and play a significant role in influencing the buyer’s decision to enter into the contract.
b) Implied Warranty: Implied warranties, also known as statutory warranties, are inherent in every contract for the sale of goods unless explicitly excluded or modified by the parties. These warranties are based on the nature of the transaction and the expectations of the parties involved. The two common types of implied warranties are:
i. Warranty of Merchantability: This warranty guarantees that the goods are reasonably fit for the ordinary purposes for which they are intended to be used. It implies that the goods are of acceptable quality, free from defects, and suitable for their ordinary purpose. Section 16 of the Sale of Goods Act provides for this warranty.
ii. Warranty of Fitness for a Particular Purpose: When the seller has reason to know the buyer’s specific purpose for purchasing the goods and the buyer relies on the seller’s expertise or judgement, an implied warranty of fitness for that particular purpose arises. The goods must be fit for the specific purpose communicated by the buyer. Section 16(1) of the Sale of Goods Act addresses this warranty.
Breach of Warranty:
A breach of warranty occurs when the seller fails to fulfil the obligations or assurances provided regarding the goods. It is important to distinguish between a breach of warranty and a breach of condition, as the legal consequences differ. In case of a breach of warranty, the buyer’s rights are not as extensive as in a breach of condition.
Legal Consequences:
Section 59
When a breach of warranty occurs, the buyer has access to certain remedies available under the ambit of Section 59 of the Sale of Goods Act, such as:
No right to automatically reject the goods: A breach of warranty alone does not entitle the buyer to automatically reject the goods. Unlike a breach of condition, which is a more serious violation, the buyer cannot outright refuse acceptance of the goods.
Diminution of price or extinction of the price: The buyer has the right to enforce a breach of warranty claim as a defence against a seller’s claim for the full price of the good. By doing so, the buyer can state that the breach has diminished the value or quality of the goods purchased, thus procuring a reduction or elimination of the price.
Lawsuit for damages: In addition to securing a price reduction, the buyer also has the option to file a lawsuit against the seller to claim damages resulting from the breach of warranty. These damages can include various losses, such as repair costs, loss of value, or any other harm suffered as a direct consequence of the breach.
It is key to note that if the buyer chooses to set up the breach of warranty claim as a defence to diminish the price, this does not prevent them from additionally pursuing further legal action if they incur additional damages beyond the reduced price.
In summary, the legality of breach of contract involves specific remedies for buyers when a breach of warranty occurs. By understanding their rights, buyers can make informed decisions about whether to seek a reduction in price or pursue legal action to recover damages caused by the breach of warranty.
Consumer Protection Act, 2019
The Consumer Protection Act 2019 (“COPA”), enacted by the Government of India, marks a key milestone with regard to safeguarding the interests of consumers across the nation. The Consumer Protection Act of 2019 replaces the previous Consumer Protection Act of 1986, with a view to modernise and strengthen consumer rights in the face of emerging challenges in the marketplace. The Act, in its very essence, incorporates the principle of consumers being the backbone of a thriving economy and aims to support them by establishing robust mechanisms for consumer protection. The Act recognizes various rights of consumers and aims to ensure fair and transparent transactions. It recognizes rights such as the right to be informed, the right to choose, the right to access to quality goods and services, the right to be heard, etc. The Act covers various aspects prioritising consumer protection like unfair trade practices, deficiency in services, product liability etc.
Unfair trade practices
The term “unfair trade practice” broadly casts a wide net, including any dishonest, dishonourable, or deceptive trade behaviour, as well as commercial deception of goods or services that are sold, that is prohibited by virtue of law or has been deemed to be important under the law by a court judgement. Breach of warranty falls under the ambit of unfair trade practices, as the act states that “any seller who commits the breach of warranty is liable under the court of law and the breach of warranty is treated as an unfair trade practice.”
In the context of breach of warranty, the Act recognizes that making false or misleading statements about goods or services is an unfair trade practice. The following points highlight different aspects related to breach of warranty:
(i) False representation of goods or services: The Act prohibits sellers or service providers from falsely representing the standard, quality, quantity, grade, composition, style, model, sponsorship, approval, performance, characteristics, accessories, uses, or benefits of their goods or services.
(ii) Misleading warranty or guarantee: Sellers or suppliers are prohibited from making false or misleading representations in the form of warranties, guarantees, promises, or performance claims related to their products or services. Such representations must not be materially misleading, and there should be a reasonable prospect of fulfilling these claims.
(iii) Misleading pricing information: It is considered an unfair trade practice to materially mislead the public about the price at which a product, goods, or service are ordinarily sold. The price representation should align with the actual market price or be clearly specified.
(iv) Disparaging the goods, services, or trade of others: Making false or misleading statements that disparage the goods, services, or trade of another person is deemed an unfair trade practice.
These provisions in the Consumer Protection Act, 2019 aim to protect consumers from deceptive or misleading practices concerning the quality, pricing, warranties, and guarantees associated with goods and services. Consumers have the right to seek legal recourse, file complaints, and claim remedies if they have been subjected to unfair trade practices or a breach of warranty. Under the Consumer Protection Act 2019, if a product or service does not meet the standards or warranties claimed by the seller, it can be considered an unfair trade practice. Consumers have the right to seek remedies such as refund, replacement, compensation, or discontinuation of deficient services. The Act empowers consumers to file complaints before consumer courts or seek alternative dispute resolution mechanisms to resolve disputes related to breach of warranty or other unfair trade practices.
Product liability
Product liability has been defined in Section 2(34) of the COPA, 2019 as “the responsibility of a product manufacturer or product seller, of any product or service, to compensate for any harm caused to a consumer by such defective product manufactured or sold or by deficiency in services relating thereto.”
In simpler terms, product liability stands for the liability imposed on the product manufacturer or seller to compensate for any harm caused to the consumer by the product or service. Product liability law finds its presence in legal systems across the globe and is also termed as “Lemon law”. This principle departs from the idea of “Caveat Emptor” and brings about the idea of “Caveat Venditor”, which means let the seller beware attempting to uphold the rights of the consumer. Chapter VI of the Act is concerned with the concept of product liability. Product liability also covers breach of express warranty by a seller or a manufacturer, imposing additional liability upon both to adhere to the terms of warranty.
Section 84- Liability of Manufacturer
Section 84 of the Act talks about the manufacturer’s liability upon breach of express warranty. It imposes liability upon the manufacturer if the product does not conform to the standards laid down by the express warranty provided by the manufacturer. It is pertinent to note that the manufacturer can be held liable irrespective of whether the manufacturer was negligent or fraudulent in any way.
Section 85- Liability of product service provider
Section 85 of the Act is concerned with the liability of the product service provider in terms of product liability. This provision holds the service provider liable for non-compliance of the service with the express warranty provided by such service provider.
Section 86- Liability of product seller
Section 86 of this Act imposes liability on the product seller for a breach of express warranty against the consumer. When a product seller provides some form of express warranty to the consumer other than what was provided by the manufacturer then, such product seller would be held liable if the product does not conform to the standards of the express warranty provided.
Forums
Additionally, the Act establishes Consumer Protection Councils at the national, state, and district levels to promote and protect the rights of consumers. These councils play a vital role in addressing consumer grievances, conducting investigations, and taking appropriate action against businesses engaged in unfair trade practices. While the Consumer Protection Act 2019 does not explicitly speak on the specifics of breach of warranty, it provides a comprehensive framework for consumer protection, which includes addressing issues related to misrepresentation, false claims, and deficient goods or services. Any consumer facing a breach of warranty can approach the appropriate forum based on the nature of such breach. The Act aims to assure that consumers are protected from unfair trade practices and have access to effective remedies when their rights are violated.
Case Laws
Foreign pronouncements
India is a state that follows the common law system established by the British empire and gives weightage to the law of precedents based on the doctrine of stare decisis and hence, decisions by courts of other states that follow a similar legal system carry persuasive value.
Clarke v. Army & Navy Cooperative Society Ltd (2009)
Herein, the defendant sold a tin of disinfectant powder to the plaintiff. The tin’s lid turned out to be defective. When the plaintiff opened the lid, the material inside the tin splashed on her face, injuring her eyes. The plaintiff therefore sued the defendant, asserting that the defendant did have knowledge regarding the lid’s condition. Hence, the court awarded compensation in favour of the plaintiff.
Hongkong Fir Shipping Co Ltd v. Kawasaki Kisen Kaisha Ltd (1961)
In this case, the Court of Appeal clearly described the different types of terms in a contract. They distinguished between conditions, warranties, and intermediate terms.
A condition is a key term in a contract. If a condition isn’t met, it entitles the opposite party the right to consider the contract as terminated or ended.
A warranty, on the other hand, is treated differently. If a warranty is breached, the injured party can claim damages but cannot terminate the contract solely based on such breach.
An intermediate term is also known as an innominate term. It falls between a condition and a warranty. The effect of non-performance of an intermediate term is based on the nature and consequences of the breach, as per the terms of agreement. The classification of an intermediate term as a condition, warranty, or something else depends on how the contract is interpreted.
The first step is always to determine the actual meaning of the term and how it fits into the complete contract. If the contract clearly sets forth that a term is a condition or warranty, either explicitly or implicitly through its nature, purpose, and circumstances, then it is classified as such. If it is ambiguous, then in such a scenario, it is considered an intermediate term, and the consequences of breaching it will depend on the specific circumstances of the breach.
MDW Holdings Ltd v Norvill (2021)
Background
The case involves a share sale transaction between MDW Holdings Limited (MDW) and the Norvill family, concerning the waste disposal company G. D. Environmental Services Limited (GDE).
The sellers provided warranties, including a warranty that the business had complied with all applicable laws and regulations.
Post-completion, MDW discovered that the previous managers of GDE had breached environmental regulations, constituting a breach of warranty and deceit.
Liability was established in the first instance hearing, and MDW was awarded damages for the sellers’ fraudulent breach of warranty.
Issues
The sellers appealed the calculation of damages, arguing that the judge was wrong to consider a potential loss that never materialized, namely reputational damage to GDE.
Calculation of Damages for Breach of Warranty
Damages for breach of warranty are typically assessed by comparing the hypothetical value of the business if the warranty were true (Warranty True) with the actual value given the false warranty (Warranty False).
The calculation involves assessing the EBITDA of the business, applying a multiple based on the specific case, and subtracting the net debt to determine the business’s overall value.
In this case, the judge reduced the multiple in the Warranty False calculation to account for the risk of reputational damage, increasing the damages awarded to MDW.
Court of Appeal’s Decision
The Court of Appeal dismissed the sellers’ appeal, affirming the judge’s decision to consider the contingent risk of reputational damage.
The court stated that subsequent events can be considered in anticipatory breach cases but not in cases of actual breach.
The risk of reputational damage would have impacted the business’s value at the time of the share purchase agreement, regardless of whether it materialized later.
The Court of Appeal emphasized that a contractual allocation of risk should be considered in such assessments, and in this case, the buyer assumed the risks associated with the purchase.
Contractual vs. Tortious Basis of Assessment
MDW cross-appealed the calculation of damages, arguing for a tortious basis of assessment instead of a contractual basis.
The tortious basis seeks to restore the claimant to the position they would have been in had the wrong not occurred.
The Court of Appeal allowed the cross-appeal, stating that the buyers could argue for the tortious basis.
However, the determination of damages on the tortious basis was remitted back to the trial judge to establish whether the buyer would have still purchased GDE and at what price, had they known the truth.
Note:
The Court of Appeal upheld the judge’s decision to consider the contingent risk of reputational damage in calculating damages for breach of warranty.
The contractual allocation of risk and the buyer’s assumption of such risks were crucial factors in the court’s reasoning.
The case highlights the importance of accurately assessing damages in breach of warranty claims and the distinction between anticipatory breach and actual breach scenarios.
The buyers’ cross-appeal for the tortious basis of assessment was allowed, but the determination of damages was remitted for further consideration by the trial judge.
Indian pronouncements
Tata Engineering and Locomotive Co. Ltd. & other V/s Gajanan Y. Mandrekar (1997)
The Supreme Court here upheld the State Commission’s order concerning a warranty claim for an automobile.
Facts
The respondent purchased a commercial vehicle, commonly known as a ‘Tipper Truck’, in May 1991, with the help of loans from a nationalized bank.
After driving the vehicle for 9000 kilometers, the respondent discovered multiple defects, including worn-out tires, improperly fixed front axle pins, and excessive vibration at a speed of 40 kilometers per hour.
The respondent reported these issues to the agent from whom the vehicle was purchased, both in writing and through subsequent letters.
Despite attempted repairs, the problems persisted, leading the respondent to file a complaint with the State Commission.
The State Commission held the appellant (seller) responsible and ordered them to pay a total amount of Rs. 4,81,132-17 with interest.
Issues
The main contention raised by the appellant was the calculation of damages and the underlying principle governing such claims.
The appellant argued that the complaint was lodged 8 months after the delivery of the vehicle and after it had been driven for a distance of 18000 to 18500 kilometers.
The appellant claimed that a proportionate deduction should have been made for the usage of the vehicle during that period.
Ratio
The court concurs with the appellant’s argument, emphasizing the importance of considering the vehicle’s usage in determining compensation.
The court acknowledges that while using the vehicle with the reported defects, the purchaser should be compensated for receiving a vehicle that did not meet the warranted condition.
Consequently, the court decides to deduct 1/3rd of the compensation awarded by the Commission to account for the vehicle’s usage during the relevant period.
The remaining amount awarded by the Commission is upheld by the court.
Outcome
The appeal is partially allowed, accepting the appellant’s argument.
No costs are awarded.
Indochem Electronic & Anr vs Addl. Collector Of Customs (2006)
In the instant case, the Supreme Court, while upholding the decision of the National Commission and the State Commission stated that “Although in terms of sub-section (3) of Section 12 no right accrues to a purchaser to reject the goods on breach of stipulation of warranty, the same would not mean that the extent of damages cannot be equivalent to the price of the goods in as much as such a power has specifically been conferred upon the Commission”.
Facts
The appellants supplied an EPABX telephone system to the respondent in March 1990, with a warranty of one year.
The system had several defects, including wrong numbers, interrupted conversations, and a non-functioning keypad lock system.
The respondent complained about the system’s performance, and the appellants made some repairs but failed to rectify the issues satisfactorily.
The appellants did not provide proper maintenance and service for the system, and the respondent sought help from another firm to keep it operational.
A complaint was filed by the respondent before the State Consumer Disputes Redressal Commission, seeking repayment of the full cost of the system.
Issues
Whether the appellants fulfilled their contractual obligations during the warranty period and thereafter.
Whether the State Commission had the power to direct the appellants to refund the price of the system with interest.
Ratio
The system had deficiencies and malfunctions during the warranty period, and the appellants failed to rectify the issues satisfactorily, indicating a breach of the contract.
The appellants voluntarily continued to attend to complaints and provide service even after the warranty period, thus extending their liability beyond the specified period.
The conduct of the appellants constituted a representation that maintenance and satisfactory functioning of the system were part of their contractual obligations, and the contract did not terminate with the expiration of the warranty period.
Section 12 of the Sale of Goods Act differentiates between conditions and warranties. It clearly establishes that while a breach of warranty does not give the right to reject the goods, it can lead to a claim for damages.
The Consumer Protection Act empowers the Consumer Disputes Redressal Commission to issue orders directing the return of the price paid by the consumer in cases of deficiency of services.
In summary, the facts involve the supply of a defective EPABX telephone system, complaints by the respondent, failure to rectify the issues, and a request for refund. The issues revolve around the fulfilment of contractual obligations and the authority of the Commission to order a refund. The ratio establishes the breach of contract, the extension of liability beyond the warranty period, and the Commission’s power to order the return of the price paid.
Sha Thilokchand Poosaji v. Crystal and Co (1954)
In this case, the following observations were made by the Madras High Court:
According to the Chief Justice, the right to seek damages for breach of warranty is based on the acceptance of the delivered goods and not their rejection.
The right to reject goods and the right to sue for damages for breach of warranty are alternative in nature and not cumulative.
If goods that do not match the contracted description are delivered, the buyer has the option to waive the rejection and accept the goods.
Section 13(1) of the Sale of Goods Act supports this interpretation, reaffirming that the buyer can accept the goods and still sue for damages for breach of warranty.
Mathew Varkey vs. T.C. Abraham (2000)
Here, in a case concerning the absence of transfer of title or registration, it was held that the purchaser or the buyer could not claim breach of conditions or warranties against the seller.
Facts:
The plaintiff purchased an Ambassador Car from the defendant in 1972 for Rs. 13,750, believing that the defendant had the right to sell the car.
While the car was in the plaintiff’s possession, it was seized by the Delhi Police in September 1972 on the grounds that it was a stolen property.
The plaintiff claims that the seizure of the car caused damages due to the breach of warranties and conditions related to the sale, resulting in the loss of the car and its quiet enjoyment.
The plaintiff alleges that the defendant had no title over the car at the time of the sale, preventing the plaintiff from making any ownership claim in the criminal proceedings or any court.
Issues:
Whether the defendant had the right to sell the car to the plaintiff.
Whether the seizure of the car caused damages to the plaintiff.
Whether the plaintiff lost title to the car as a result of the defendant’s lack of title.
Ratio:
The implied condition in a contract of sale is that the seller is entitled to sell the goods. The implied warranty is that the buyer shall have quiet possession of the goods free from any encumbrances.
The mere fact that the car was seized in a case may not be sufficient to establish the title. The key question is whether the vendor had title to pass, and if not, whether the plaintiff was entitled to damages in the circumstances.
The plaintiff failed to comply with the earlier remand order to plead and prove the loss of title to the vehicle. Without evidence of loss of title, the plaintiff cannot claim damages.
The court is bound by the findings of the previous Division Bench, and a remand order does not bind a higher court in an appeal. The Supreme Court has the authority to examine the position of law and is not bound by the earlier findings in an intermediate stage of the litigation.
What are the remedies for breach of warranty?
If the seller is in breach of the warranty, the buyer may sue the seller for the damages done to the buyer.
Where there is a breach of the warranty by the seller or where the buyer chooses or is obliged to treat any breach of the condition on the part of the seller as a breach of the warranty, the buyer is not only entitled to refuse the goods on the breach of warranty but also
Set up a breach of warranty against the seller when the price is reduced or extinguished; and
Sue the seller for damages due to breach of the warranty.
The fact that the buyer has breached the warranty in the event of a price loss or collapse does not preclude the buyer from appealing in the event of further damage the same breach of warranty.
Section 59 provides for remedies in the event of a breach of the seller’s warranty. A buyer has some remedies at his fingertips. It may be recalled from Chapter II of the Specific Relief Act, 1877 that a breach of the condition gives the buyer the right to treat the contract as rebuked and to reject the goods. However, breach of the condition may be treated as a breach of the warranty and an appropriate remedy may be sought.
Section 59 provides for following remedies in case of breach of warranty:
Diminution or extinction of the price
Damages
The price drop (reduced) depends on the loss and effect of that loss on the buyers.
Condition 1: If the loss is less than the price then the buyer may request a reduction in price.
Condition 2: If the loss is equal to the price then the buyer will apply for the price to be diminished.
Condition 3: If the loss is higher than the price, the buyer may ask for excess damages after the termination of the price of subsection (2). Reduction occurs when the buyer has not paid for the item.
Damage insurance is a fair option if the buyer has already paid the price.
Damages shall be calculated following the principles set out in Section 73 of the Indian Contract Act, 1872.
Case law: Union of India v A.L. Rallia Ram 1963
Fact: In this case, the issue was the goods delivered to the buyer were of lower quality than warranted.
Seller: Taken most of the goods shipped, paid pro-rate at a negotiated price for that portion, and sold at a different price.
Buyer: Disposal of the remaining stock at a fixed price higher than the buyer’s sale price.
Available remedies
A breach of warranty does not entitle the buyer to refuse the goods and sole remedy is provided in Section 59 of the Sales of Goods Act 1930.
To constitute a breach of the warranty against the seller in the event of a price drop or loss, or to sue the seller for damages sustained in the event of a breach. From the definition of warranty given inSection 12(3), itis clear that a breach of it gives rise to a claim for damages only on the part of the buyer. By Section 13(1), even in the case of a breach of condition, the sales contract is subject to some obligation to be fulfilled by the seller, the buyer may waive the condition or choose to treat the breach of the condition as a breach of the warranty and not as a reason to breach of contract.
The condition when the buyer claims for damages
Example 1: If the buyer has accepted the goods or part of them, in the case of full contracts, either intentionally or by acting in such a way as to prohibit himself from using his right to deny them, he will rely on his claim for damages as though the breach of the condition were a breach of the warranty.
This section declares the methods by which a buyer who has claimed for damages, in either case, may avail himself of it. Section 57Where the seller wrongly neglects or refuses to deliver the goods to the buyer, the buyer can sue the seller for non-delivery damages and if necessary under Section 61, to recover the purchase price and interest. This Act talks about the Seller’s or buyer’s rights, in any situation where interest or damage may be compensated by a statute, or to money paid should the estimation of the payment fail.
In the case of a quality warranty, it is presumed that the damage calculated is the difference between the value of the products at the time of delivery and the value of the goods under a contract, which will be calculated concerning the market price.
In most cases, this guarantee is decided not to be a warranty as specified in Section 12(2) but to be treated as a condition under Section 13(2). This is most often the case that the products should be compatible or fit for a specific purpose with the description by which they were sold.
The buyer must depend on the warranty and take appropriate steps, i.e. to reduce the losses. Where there is a breach of the warranty of the goods fit for a specific purpose, the rule again is that the damage must naturally arise due to the breach.
Illustration: This was seen in a case where the wife of the plaintiff died from the consequences of consuming tinned salmon purchased from the defendant by the plaintiff, the plaintiff was held entitled to claim as damages for breach of the warranty that the salmon would be fit for human consumption. Compensation has been awarded for medical care, funeral costs and her life loss.
Other conditions may also be breached which can be treated as warranty breaches, such as title warranty. The buyer might also be involved in difficulties with sub-buyers in such a situation, for example, he might buy a motor car from someone who has no right to sell it and will resell it to a third party from whom the true owner might recover it or its value.
In 1945, the plaintiff, a woman, had bought a second-hand typewriter for the defendant. She subsequently spent some money on its restoration and used it for several months. The typewriter was an unknown stolen one from the parties and the plaintiff was compelled to return the same to their true owner. She was entitled to claim damages from the seller for breach of this warranty, which covered not only the price charged but also the costs of repair.
Is the Breach of warranty gives the buyer the right to claim the damages?
The first implied warranty on the part of the seller in each sales contract is that “the buyer shall enjoy the goods in silent possession.”
“If the buyer’s quiet possession is in some way disrupted by a person with a superior right than the seller’s, the buyer may demand damages from the seller, because disturbance of quiet possession is likely to occur only where the seller’s title to the products is defective, this warranty may be treated as an extension of the implied condition of title set out in Section 14(a)”. The two clauses of Section 14(a)(b) are contradictory and it is not easy to see what additional privileges this warranty confers on the buyer beyond those granted by the implied condition of title as set out in Section 14(a).
Issue: In a breach of the warranty in respect of the sale of the goods sold by the buyer.
Fact: The defendant provided the plaintiff with a previously established control contract to market and sell a certain number of goods. While for the plaintiff the final output was less than the accepted sum. The suit was a breach of the warranty when selling the goods.
Held: The right measure of loss is the difference between the real market value and the contract price at the time of sale. Quaere, if the buyer might not, as compensation for the third person to whom the defendant’s belief in his warranty sold the portion of the goods, have been able to recover the amount paid fairly and reasonably
Specific solutions applicable to the buyer as well as the seller
Interest through Damage and Special Damages
Illustration:Section 62 of the Sales of Goods Act,1930 states that special damages can be recovered by the buyer or seller where special damages or interest may be recoverable by law. The solution has a limitation. The parties should have contemplated that if the contract is breached in any way, a particular loss could occur after contract breach. The Interest Act was passed in 1839, specifies that in such cases interest is required to be charged by way of damages. The argument to be remembered here is that the seller can only claim interest if he is entitled to get the price back. If the seller is seeking claims only for breach of contract, he cannot claim any interest. The same idea also applies to the buyer’s case. He cannot claim interest if he sues the purchaser for breach of guarantee.
State Trading Corporation V. Tara Jewellers,1984
In this case, A contract for the purchase of silver for export was disrupted because of the government’s ban on exports in the 1980s. In a petition for price refund as well as interest on it, the High court in Calcutta allowed the refund as well as interest @6% per annum. Since the date of claim of filing of the suit until the date of refund by the defendant at the same rate and cost.
Suit for contract repudiation before date or anticipatory breach
Illustration:Section 60 of the Sales of Goods Act, 1930 states that if either party waives the contract before the goods are delivered, the other party may wait until the delivery date of the goods, or treat the contract as annulled and seek damages. This clause is based on Indian Law. The party not in default may choose to keep the contract alive by failing to accept the defaulting party’s repudiation. In such a scenario, if he refuses to perform his part or is unable to perform his part at the time of performance of the contract, the defaulting party would be discharged and the position would be as if the contract had not been repudiated before the date of the contract.
Frost v. Knight (1872)
In the case In Frost v Knight, the defendant had said he would marry her when the father of the plaintiff died. However, the defendant broke off his relationship with the plaintiff during the time father’s alive. The plaintiff sued immediately, without waiting for her father’s death, for breach of the promise of marriage.
Illustration: A promised to marry P upon A’s father’s death. While A’s father was still alive, A told P that he was not going to marry her after his father’s death. P brought an action for breach of promise. It was held that P was entitled to accept A’s repudiation of the contract to marry her and to sue A.
It was held that one contracting party could simply refuse to continue carrying out its contractual duties. In such a case, the other contracting party may bring an action in court for breach of a contract until it can prove that it was indeed willing under the same contract to perform its duties.
Illustration: V is a seller and N is a buyer. N repudiates the contract before date, but V does not accept the repudiation and keeps the contract alive. On the date of performance, V delivers the products. But these are not according to the specification of N. in this case N may reject the goods. V will not be able to avail any remedy or N may accept the goods and treat the breach of condition as a breach of warranty and recover damages from V.
Conclusion
If there is a breach of the warranty for goods that should be suitable for a particular purpose, the principle applied is that the damages will emerge naturally from the breach. It should be noted here that damages are determined in those cases as per the terms of Section 73 of the Indian Contract Act, 1872. This was also noted by a Bombay high court division bench at Maharashtra Ltd., City And Industrial Development Company, Bombay v Nagpur Steel and Alloys, Nagpur. The remedies given in Section 59 shall not be complete remedied for an appropriate buyer at any stage or strategic point. Buyer has to make his purpose clear on each situation’s facts and circumstances and give notice of his intention. If the holding were not justified by statute or an Act, it would place the Seller in an awkward and uncertain position.
In conclusion, warranty law plays a crucial role in establishing a balance between the interests of consumers and sellers. The concept of a warranty has its roots in ancient practices and has evolved with time while covering various forms of transactions, including the sale of goods. In India, warranty laws are primarily governed by the Sale of Goods Act, the Indian Contract Act, and the Consumer Protection Act. The Indian Contract Act laid the foundation for warranty based laws in the country because, in essence, breach of warranty does partly lead to breach of contract as well. Therefore, breach of warranty is deemed unlawful by virtue of the laws mentioned above and is also considered unfair towards consumers and detrimental to their interests.
Frequently Asked Questions (FAQs)
What is the difference between breach of warranty and breach of condition?
Breach of condition is a breach of a stipulation that forms the very basis of contract whereas breach of warranty is concerned with the breach of a stipulation that is additional to the main purpose of the contract.
What are the remedies for breach of warranty?
One can claim damages against breach of warranty by virtue of Sale of Goods Act,1930 and can also approach the appropriate consumer forum.
How is express warranty and implied warranty created?
Express warranty: Express warranty is created through any statement, promise, description of goods, or sample by the seller or manufacturer.
Implied warranty: Unlike express warranty implied warranty arises automatically in a situation based on a presumption and is implied into the contract. Read more on express and implied warranty here.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Every country has its own way of providing various types of benefits and privileges to employees to keep them employed. These benefits give them trust and faith in the company where they are working. These benefits and entitlement increase the stability of people in the company and increase the assurance and credibility of the growth of the company. In the United Kingdom (UK), the concept of employee benefit is made mandatory by the government, and benefits are provided as per compliance with labor law. The labor law in the UK makes sure that the employer and employee are protected by law. It is necessary to note that full-time employees and contract-based workers both are eligible for the entitlement and benefits by law. Traditionally full-time workers have to sign up employment agreements with the company and contract-based employees are signed up for a period of time as per the requirement of the companies. This article deals with employee benefits and entitlements in the UK.
Employee benefits and minimum wages
Minimum wages are probably divided by age group in the UK. For the national living wage, the eligible age is 23 and above and for national minimum wage, the age is at least school-leaving age. Minimum wages in the UK are legally not framed well, so employers use employee benefits as a tool for attracting more talent for their companies. Employee benefits are over and above the regular wages provided to the employee. There are various other perks of services also provided in the company.
Mandatory benefits in the UK
The most common and essential benefits in the UK, mandatory to be in compliance with the law are pension, paid sick leaves, holiday allowance, and maternity & paternity leave.
Pensions and other retirement schemes
Young employees do not think of saving for the future so the UK government made pensions compulsory in the country. Here the employer has to auto-enroll the eligible employees into the pension scheme.
The pension scheme provides employees with an allowance for survival after retirement. The employer and employee both add some amount of money to the pension account whether it is added on the basis of type of workplace or voluntarily enrolled in the scheme. The value of the pension amount varies from employee to employee.
Nowadays, mostly it is a defined contribution in which both have to add a certain amount of money on a daily basis. Another one is a defined benefit less popular in the private sector in which the pension amount depends upon a calculated formula. Here the average salary overtime, final salary, or period of work with the company may be included for calculation.
As per law, UK employers are obligated to add a minimum amount of 3% of the salary of the worker for the pension plan and employees have to add a minimum of 5% of their salary for the same. These contributions can be increased but not reduced in employment contracts.
Paid sick leaves
Paid sick leaves are provided to the employee on a statutory basis. In most circumstances employees can allow holidays into sick leaves for a week thereafter he/she has to show a medical certificate or note of sickness by a doctor. A worker on long-term sick leave cannot be forced to work and the employer has to pay up to 28 weeks of leave if he/she continues to be ill for a long time. If an employee quits the job in the middle of a year due to continuous sickness the employer has to pay the pending/unused leaves of the employee till the day of leaving.
Holiday allowances
20 paid leaves and 8 public holidays are given and paid by the employer to the employee annually, who works for 5 days a week which is equivalent to 5.6 weeks of a holiday. The part-time employee or workers having irregular working hours also avails of these benefits proportionately. Some employers offer more paid leaves to attract more talent or keep the employee stay with them for a long time. These holidays are sometimes convertible for long-term sick leaves and paid by the employer.
Maternity & paternity leave
Maternity leave
When a woman is pregnant she is eligible for maternity leave and in the UK, it is divided into two parts, namely, ordinary and additional leave. The ordinary maternity leave is for 26 weeks and additional 26 weeks leave is added as required, which comes to a total of 52 weeks of leave. The mother could take these leaves prior to 11 weeks of delivery due date and 2 weeks after the child is born. Essentially the employer has to pay 90% of the mother’s average wages for the first six weeks of the leave and later on for the next 33 weeks less than 90% of the average pay is given. Mothers are still entitled to take leave for the remaining 13 weeks but are not paid for the same. The mother who wishes to return to the job or leave it shall have to provide a notice to the employer for joining or leaving the same.
Paternity leave
Paternity leave is available by the father of the biological child or legally adopted child or surrogate child in the UK. Partners of a pregnant employee can avail these benefits irrespective of their gender. Comparatively paternity leave is lesser than maternity leave which is up to 2 weeks only. During the child’s first year of birth, paternity leave can be used by the employee. They have also assured employment rights to reimburse their leaves by a guaranteed rise in pay, coming back to jobs, and pending holidays. Some prefer to avail of shared parental leave which lowers the load of responsibility of both and choose to share leave after the child is born. This can be extended up to 50 weeks with 37 paid weeks. Parents can use it during the first year of the baby.
Other benefits to the UK employees
There are many other additional benefits that are not mandatory by law but some employers offer to the employees like some health & medical insurance, dental or eyes check-up facilities, wellness sessions, virtual GP, and other bonuses & incentives or perks like season ticket loans, carpool or company car, biking to office, gym and canteen in office. As the UK has various public health care systems, such as National Health Services (NHS), private health care assistance is not mandatory. Here the employee can avail of various facilities like free medical check-ups, emergency appointments, ambulance facilities, heavy treatments, and so on. The employer provides additional health benefits and also group health facilities so that the employees would not face any difficulties for health issues and do not avail much of health benefits.
Conclusion
Even after so many facilities of employee benefits in the UK still there are various ambiguities that the employee has to face during his/her employment. The employer mandatorily has to enroll the employees into the pension plans and sometimes has to add more money to attract more talent which is not affordable to them. Health benefits and perks were less expensive for the employer than the paid leaves so there is competition related to the same in the industry. The NHS is a publicly funded facility of health for the residents of the UK collected by the taxpayers. Due to some loopholes in the NHS, like the patient’s waiting time is higher than the health services so for fast services the employees avail private health care assistant as it is very much required by them. The statutory sick pay is beneficial for the employees but not for the contractual workers and employers do provide them with the same as required. In the UK, a number of various other benefits and perks are provided by the employer in the industries which are increasing day by day. Likewise, there is a competition going on in the market of employment benefits for which there has to be proper provision in the law of UK which could be more beneficial to both employees as well as the employer. The UK government has to make changes in the employment law and labor law to bring a balance in the industry as well as the availability of benefits to everyone residing in the UK.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Nobody can deny that the Indian music industry is one of the most culturally rich and diverse in the world. Musicians have been able to produce top quality songs through various means for a long time. As consumers or listeners, we always enjoy the music but seldom know the hardships and difficulties that the musicians go through to get to where they are. From the composition stage to production and distribution, they go through a lot of hurdles.
In this article, we will look at the different kinds of issues musicians have to face within the music industry, how their rights are being infringed, what can be done to remedy these problems, and much more.
Who owns music copyrights
When you hear the word ‘music’, what comes to mind? Who do you think is the owner of a song or a music recording? Who are the people involved in the whole process, and what rights do they possess? Let’s take a look at it below –
Lyricists and songwriters
These people form the backbone of any type of music. Lyricists or songwriters are the ones who provide the written matter or wording for a song. The lyrics of a song are considered literary works. Therefore, they have literary rights to it.
Composers
Music composers are the ones who provide the music that turns the words into a song. This can be considered an artistic work. Hence, they also possess copyright.
Singers
These people bring life to the work mentioned above. Without them, the song would just remain words and music separately. Singers possess performers rights or moral rights, as elaborated in Section 38 of the Copyright Act.
Producers and Record Labels
Without them, these works of art would not be able to be put out into the world for us to listen to. Record labels and producers help the musicians to get their work out into the world. Hence, rights over the whole song or the Master copyright belongs to them.
Kinds of rights possessed
Now that we have understood the people involved in the music industry, we can now take a look at the kinds of rights present and who all possess them.
Right to reproduce
According to Section 14(a) of the Copyright Act, the author or creator of a musical work has the sole right to reproduce their artistic work in any other form that they see fit.
Mechanical rights
These, too, are the rights available to the author or creator to reproduce their work in any other mode or medium.
Synchronisation rights
If the author or creator would like to sync their work to any other platform in a different format (like a video), they can do so using this right.
Derivative rights
If the author or creator would like to create new works from their already existing ones (like remixes) by reproducing them differently, it is called a derivative right.
Right to display and communicate the work
The author has the right to display and communicate their musical work.
Adaptation rights
It is the right vested in the author or creator of a musical work, to adapt their work into different languages (translation).
Performer’s rights
According to Section 38 of the Copyright Act, the singer or performer of a song has certain rights as well. They are allowed to make a recording of their work and reproduce it. They can also broadcast their work to the public. This right exists for these singers for 50 years from the year of song publication.
Moral rights
The singer or performer also has moral rights, which empower them to identify themselves as performers and also give them the right to claim damages if someone alters their work in such a way that it causes prejudice to them. According to Section 57 of the Copyright Act, these rights would still be vested in them (the right to paternity) even if they assigned their rights to others (the right to restrain).
Literary rights
These are the rights available to the lyricist or songwriter over the written matter of the song (lyrics). Lyrics are considered a literary matter and are protected under the Copyright Act.
Master Copyright
The rights to the song as a whole (recording) are vested in the producers or the record labels because they are the ones who produce the song into something that is tangible.
Main issues faced by the musicians
One of the biggest problems that musicians have been facing for a long time is that they are never paid enough for their hard work. They always have to rely on record labels or producers to get their work out there for people to listen to. Even though the times have changed and, with digital advancements, they can use internet platforms to showcase their work, the traditional method is still the main channel they use. They sign unconscionable contracts with these record labels and producers and take advantage of these musicians, especially new artists who have just stepped into this career. The labels exercise unparalleled power over them through these contracts, and these new artists do not have the power to negotiate with them.
Most of the time, they are given a lump sum payment at the beginning, and they have no choice but to agree to it. And after that, there are no other additional financial benefits. As artists, even though they are bound to receive royalties for their work, the labels word their contracts in such a way that it benefits only them (financially) and not the musicians. According to the terms of the contract, all further rights would also be vested in the labels, so they would be able to do whatever they wanted with the music without consulting the artist. All the monetary gains go into the pockets of the record labels.
Being the creative souls that they are, musicians or any artist thrive and produce their best work when they are let free. The feeling of being entrapped would only hinder their whole thought process. Thus, not receiving profit or royalties for their work discourages them.
Another problem that musicians face, though outside the music industry, is digital piracy. Because they lack knowledge and awareness, listeners do not know the consequences of illegally downloading copyrighted material online. Therefore, this becomes another method by which musicians are exploited. All in all, musicians cannot afford to fight against these infringers for their rights, especially when starting out.
2012 Amendment of Copyright Act, 1957
In this new era of technological advancements, there was an impending need to make a few changes to the Copyright Act. The Act needed to conform with WIPO (World Intellectual Property Organisation) norms and also with “internet treaties” like the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).
So many significant changes have been brought out since the 2012 amendment of the Copyright Act, 1957. Wider protection is being given to musicians because they have been suffering at the hands of producers and record labels for a long time. They are being given better rights to ownership and control of their own work and promoted to a legally higher position. Even though other changes have also been brought about through this amendment, we will focus on the author and owner-friendly rights regarding assignment and licences.
Section 18
Three new provisos have been introduced to Section 18 through the amendment. It states that the assignee can only use those modes or means that existed when the assignment was first made while exercising his or her rights. He or she cannot extend it to future modes. The second and third provisos restrict an author from waiving his or her rights to receive royalties. The most that can be done is to share it on a 50/50 basis with the assignee. Any contract made contrary to this provision will be considered void. There are some exceptions to this. A few instances in which more than 50% of the rights can be waived are when:
It is given to legal heirs of the author
Communication is made to the public in a cinema hall
A copyright society is entrusted with collecting and distributing royalties on the author’s behalf
Section 19
Section 19 deals with modes of assignment. Three subsections were added to this Section, namely, (8), (9) and (10). Subsection (8) states that the author belonging to a particular Copyright Society cannot assign his or her rights to a third party in contravention of the terms and conditions of the agreement they have with the Copyright Society. If done so, it would be considered void. This is done to protect the Copyright Societies and have them work efficiently. Copyright Societies become the only channel through which the authors can receive their share of royalties. If the author wants to assign his or her rights to a third party, they would have to abandon their membership in the Copyright Society.
Subsections (9) and (10) state that if the author assigns or licences his or her copyright in a cinematographic film or sound recording, it will not make any difference in his or her right to royalties unless it is done as a communication to the public in a cinema hall.
Copyright Society
It is difficult for an individual author or owner of a musical work to keep track of all the different ways their work is being used. It is also tough to collect royalties or profits for their work from different sources all the time. That is where the role of Copyright Societies becomes crucial. Copyright Societies are given a lot of powers and functions to manage and protect their members’ copyright matters. They help to keep a better eye on who is using their copyright. They also collect royalties from different streams and bring them to the author or owner. Section 33 of the Copyright Act, 1957, deals with the Copyright Society and its formation. It is formed and run by the authors and owners themselves, and a minimum of seven members is required.
Section 33 (3A) was added to the Copyright Act, 1957, as part of the 2012 amendment, and it required the existing copyright societies to re-register themselves within one year if they wanted to keep granting copyright licences.
Section 14
As per the 2012 amendment, now the right to reproduce also includes the “right to store” the work in any mode by electronic means. This has become an important topic due to the digital advancements present in today’s world. The right concerning the storage of work becomes even more relevant in the present state of digital technology, which involves transmitting digitised works over the internet, resulting in the creation of transient copies at several different locations, including on the user’s computer.
Section 17
A proviso has been added to this section by the amendment that states that nothing should affect the rights of the author. It protects them from clauses (b) and (c) of Section 17.
The EIMPA Judgement
The facts of the case, Indian Performing Rights Society v. Eastern Indian Motion Pictures Association (IPRS v. EIMPA), are as follows. The IPRS is a society that licences the copyright of its members’ musical works. The IPRS claimed that they were the assignees of the authors who created the music and that the EIMPA has to pay a tariff to them because the EIMPA is using the copyright of the members of their society in cinematographic films and radio stations. It was a long-drawn case in which the Honourable Supreme Court finally held in favor of EIMPA, or rather, the producers of the cinematographic films, by relying on Sections 17(b) and (c). The producers were considered owners because these musicians were hired on a ‘contract of service’ basis.
It is hoped that the 2012 amendment will help to overturn this decision in the upcoming judgments because of the alterations made in Section 17.
Section 38
Section 38A has been added through an amendment, giving royalty rights to even performers when their work is being used commercially.
Important case laws
In the case of Indian Performing Rights Society v. Aditya Pandey & Ors., it was held that the author whose literary and musical works have been incorporated in sound recordings is entitled to receive an equal share of the royalties that arise from using their work.
In the case of Amar Nath Sehgal vs. Union of India, it was rightly held that the moral rights of a work are vested in the author itself, and he or she has the right to decide how to protect it even if rights have been assigned to someone else.
In Gramophone Co. v. Super Cassettes and Gramophone Co. v. Mars, opposite judgments were given. Section 52(1)(j) of the Copyright Act, 1957, states that a licence should be obtained from the author if someone wants to use their work and make any alterations or modifications to it. In the former case, it was held that permission had to be obtained from the owner of a musical work before making changes to it. But in the latter case, it was held and stated that, as far as the provisions of Section 52(1)(j) were complied with, no permissions needed to be taken.
Conclusion
Even though many changes have been made because of the 2012 Amendment, there is still a long way to go. An environment should be created where both musicians and labels have equal bargaining power, or rather, increase the bargaining power of musicians. A 50/50 approach should be taken where both parties can share the revenue.
Even though it is not mandatory, it is always advised to register a copyright because it comes with a lot of benefits. Rights are assured for a registered copyright and the copyright owner will be able to sue an infringer and resort to civil or criminal remedies
One of the latest developments in this area is the ISRA’s (Indian Singers Rights Association) agreement with the IMI (Indian Music Industry). This agreement is mainly to fight against digital piracy and covers all record labels, singers, and musicians in India. The accord is set to benefit all stakeholders across the Indian music industry and help the music market grow. It is expected to have a positive impact on the industry.
Safeguarding the rights of musicians within the Indian music industry is tough work to get done because almost every time, the producers or record labels are favoured over them. All we can do is be hopeful for the future, make sure that the musicians are aware of their rights according to the latest changes in the law, and also aspire that the decisions taken will be favourable to them, at least from now on.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article is written by Monesh Mehndiratta, of Graphic Era Hill University, Dehradun. This article explains the case of Vismaya Dowry Death in detail. It gives the brief facts of the case, the issues, and the judgment of the court. It further explains the law applied in this case and the opinions of the judges.
Women in our society are considered the most vulnerable section and are prone to the commission of crimes. One of the major reasons is that they have been tortured and dominated since time immemorial. Sati pratha, domestic violence, and other evil practices were prevalent in society even back in the olden days. Though many laws have been made to protect their status and recognise their rights, the fight is far from over
Over the years, the giving and acceptance of dowry in marriage almost became the norm. However, the worst parts of these practices are revealed when a woman dies due to the demand for dowry by her in-laws. This is known as “Dowry Death” and is punishable in our country. The husband and his family members, at times, become so greedy that they start torturing his wife for the demand of more and more dowry. She is ill-treated, beaten, and mostly put to death or driven to death. These kinds of atrocities against women are still prevalent in our society, and women are the victims. We will study one such recent case related to dowry deaths today. The article gives a summary of the Vismaya Dowry Death case, wherein a woman was forced to commit suicide in lieu of dowry demands by her in-laws. The article gives the brief facts of the case, issues, judgment of the court, and law involved in the case.
Vismaya V. Nair was a Bachelor’s student of Ayurveda Medicines and was married to Kiran Kumar, aged 31, who was a government servant serving as Assistant Motor Vehicle Inspector, in 2020. In 2021, Vismaya was found dead in Kiran’s house at Poruvazhy in Sasthamkotta in the Kollam district of Kerala. According to her father, Kiran was given 100 sovereigns of gold (1 sovereign contains 8 grams of gold), one acre of land, and a car worth ten lakh rupees at the wedding. However, Kiran did not like the car and demanded cash equivalent to ten lakh rupees in place of it. For this, he used to torture and harass Vismaya.
Frustrated by the acts of her husband, Vismaya committed suicide. Her family and relatives accused Kiran of her death and lodged an FIR against him. After the allegations were made against Kiran, he was dismissed from his government service, and departmental action was taken against him according to the Kerala Civil Services Rule, 1960. Meanwhile, an investigation was conducted by the police, wherein evidence was collected and witnesses were examined. This case made the headlines of the news, as a result of which a campaign was started against the social evil of dowry.
Issues involved in the case
Whether the accused is guilty of the dowry death of his wife or not.
Contentions of the parties
The prosecution argued that the accused, i.e., Kiran was not satisfied with what he had been given at the wedding and wanted a car of his choice or equivalent cash of Rs. 7-10 Lakhs. In order to fulfill his demand, he used to torture Vismaya so that she could ask her parents to give her the money, as a result of which she hanged herself. It was further argued that the present case does not involve a crime against an individual but against society at large. It is related to a social evil prevailing in our society, i.e., dowry. It is no less than murder. The prosecution requested that the court give exemplary punishment for such a heinous crime where the accused is a government officer in order to set an example for others not to repeat such crimes in society.
The defense, on the other hand, argued that his client, Kiran Kumar, has no criminal background. He is the only person in the family who is the breadwinner. He requested that the court take his age into consideration and the fact that his father is suffering from amnesia. It must be noted that, being the only person earning, he has to take care of his family.
Judgement of the court
After hearing both sides and considering the chargesheet filed by the police, the court held Kiran guilty in the present case. He was held liable for the following punishments:
Further, under Section 306 (Abetment of suicide) IPC, he was given six years imprisonment along with a fine of two lakhs rupees. If he fails to pay the fine, he will be imprisoned for another six months.
He was also held liable for cruelty and domestic violence under Section 498A IPC and imprisoned for two years along with fine. If he fails to pay the fine of Rs 0.5 lakhs, he will be given imprisonment for three months.
Under Section 3 (Penalty for giving or taking dowry) of the Dowry Prohibition Act of 1961, he was given six years of imprisonment along with a fine of ten lakhs rupees. In case he fails to pay the fine, he would be held liable for 18 months of imprisonment.
He was also charged under Section 4 (Penalty for demanding dowry) of the Dowry Prohibition Act, wherein he was held liable for one year imprisonment and a fine of rupees five thousand rupees. Failure to pay would entitle him to another 15 days of imprisonment.
Thus, he was liable to pay a fine of Rs. 12.55 lakhs in total, and all the imprisonments would run concurrently.
Laws involved in the case
The accused in this case was found guilty under the following sections:
Section 304B of IPC.
Section 306 of IPC.
Section 498A of IPC.
The Dowry Prohibition Act, 1961 (Sections 3 and 4).
Section 304B of IPC
This Section provides the definition and punishment for causing dowry death. If the husband or his relatives cause the death of his wife by burns or other bodily injury that occurs within the time span of seven years of marriage and it is proved that she was subjected to cruelty before her death for the demand of dowry, it will be considered a dowry death. The husband and his relatives who do so will be accused of causing such a death. The punishment under the section is seven years of imprisonment, which may extend up to life imprisonment as well.
Illustration: A husband of B harassed and tortured her for the demand of dowry, along with his father and mother. One day, B died due to injuries caused to her within 7 years of marriage. A, along with his father and mother, would be liable under the section for causing dowry death.
In the case, State of Punjab v. Iqbal Singh (1991), the Supreme Court explained that the period of seven years is kept by the legislature because it is assumed that after seven years, the couple would have settled well in their lives.
Further, in the case of Satbir Singh v. State of Haryana (2005), the court held that once the prosecution establishes the essentials of dowry death, the burden of proof shifts to the defence to show that the accused is innocent.
Essentials of dowry death
The following elements are the essentials or ingredients of dowry death under Section 304B IPC:
The death of a woman must be a result of burns or injury, except under normal circumstances.
It must have occurred within seven years of marriage.
She must be subjected to cruelty or harassment by her husband or in-laws.
Cruelty or harassment must be related to the demand for dowry.
A similar incident happened in the present case. Kiran was already given gold and a car at the wedding, but after marriage, he demanded more cash, for which he tortured and harassed Vismaya. As a result of such physical and mental abuse, she hanged herself and committed suicide in the first year of her marriage. During the investigation, the police found that she shared pictures of wounds and injuries caused by Kiran with her family and relatives. This, along with other evidence and witnesses, confirms that she was subjected to cruelty. The husband was thus held liable under the section and punished for causing ‘dowry death.’
Section 306 IPC
This section deals with the abetment of suicide and provides punishment for the same. If any person compels or abets another person to commit suicide, he would be liable for a punishment of 10 years of imprisonment along with a fine. In the present case, the accused, i.e., Kiran, husband of Vismaya was held guilty of abetting suicide by torturing and abusing Vismaya owing to a demand for dowry.
Suicide is a kind of self-murder and the person doing so is beyond the reach of the law, but a person abetting another to do so is a criminal under the eyes of the law. In the past decades, dowry deaths have been increasing rapidly, and to combat the situation, the Criminal Law (Second Amendment) Act, 1983 was enacted. This Act made the act of abetting a woman to commit suicide by her husband or in-laws due to a demand for dowry a punishable offence by virtue of the insertion of Section 113A of the Indian Evidence Act, 1872.
Section 498A IPC
This section punishes the husband or in-laws of a woman for subjecting her to torture and cruelty. The punishment prescribed under the section is three years of imprisonment along with a fine. It also provides a definition of cruelty. According to the Section, cruelty includes any unlawful act or conduct that drives or compels a woman to commit suicide or puts her life, limb, or health in danger. It also means any kind of harassment done to her for the demand of property or valuable things, i.e., dowry, or in case of failure to meet such a demand.
It must be noted that cruelty under the Section does not only cover physical torture but mental torture as well. In the case of Inder Raj Malik v. Sunita Malik (1986), the Delhi High Court held that a person could be liable for punishment under Section 498A IPC and Section 4 of the Dowry Prohibition Act, 1961 at the same time, and this does not lead to double jeopardy. This is because the latter is only concerned with the demand for dowry and makes it punishable; however, the former makes the existence of cruelty to married women an essential element for the conviction.
Further, in the case of Vijeta Gajra v. State of NCT Delhi (2010), the Supreme Court held that the appellant could not lodge an FIR against the foster sister of her husband for cruelty because of the demand for dowry because a foster sister is not a relative of her husband by blood, marriage, or adoption and so cannot be convicted or tried for the offence.
In the present case, Kiran used to torture Vismaya over the demand for dowry. When her parents were not able to fulfill his demands, he used to abuse her physically and mentally. Even the police confirmed that Vismaya committed suicide due to harassment by her husband.
Difference between Cruelty and Dowry deaths
Sr. No.
Cruelty
Dowry death
Section 498A IPC deals with the offence of cruelty by husband and relatives.
Section 304B IPC deals with the offence of dowry death.
There is no limitation period prescribed under the Section which means that if the husband or in-laws subject a woman to cruelty at any stage in a marriage, they would be liable for the same.
According to the section, dowry death must have occurred within seven years of marriage.
Only the offence of cruelty is punished under this section. Demand of dowry is not the only reason for cruelty under the Section. If a woman is subjected to cruelty due to any reason, it will be punished.
Acts of cruelty and harassment which result in the death of women due to demand of dowry are punishable.
Punishment can extend up to three years of imprisonment and fine.
Punishment for this offence extends to life imprisonment with minimum punishment as seven years of imprisonment.
The explanation clause gives the meaning of the word ‘cruelty’.
The explanation clause talks about dowry.
However, it must be noted that both the sections have a common background and so a person charged under Section 304B IPC can also be convicted under Section 498A.
Dowry Prohibition Act, 1961
The Act has been passed to prevent and reduce dowry deaths in the country and safeguard women against torture for the demand of dowry by her in-laws. This Act provides punishment for giving and taking dowry under Section 3 and for demanding dowry under Section 4.
Any person who takes, gives, or abets the taking or giving of dowry would be punished for imprisonment up to 5 years along with a fine of rupees fifteen thousand or cost of such dowry. Similarly, if a person demands dowry from either the parents or relatives of a bride or a bridegroom would be liable for imprisonment from six months up to two years along with a fine of rupees ten thousand.
Decision of the Kerala High Court
The accused filed a petition in the Kerala High Court requesting to suspend his sentence and release him on bail. As mentioned above, he was convicted under Sections 304B, 306 and 498A of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The issue before the court was whether there exists any patent infirmity in the conviction order under Section 304B IPC making it erroneous.
However, the division bench of Justice Alexander Thomas and Justice Sophy Thomas held that there is no need for suspension of sentence in this case and no patent infirmity exists in the order, which makes it erroneous. They considered the nature and seriousness of the offence in this case and the impact it creates on society and so the sentence of the convict was not suspended.
Ratio decidendi in the case
The Court, in this case, referred to the case of State of M.P. v. Jogendra (2022), in which it was held that the most important element for attracting liability under Section 304B IPC is that the death must be a dowry death. Further, it was held that any property or valuable security amounting to dowry under Section 2 of the Dowry Prohibition Act, 1961 could also be given after the marriage. Relying on the case of State of A.P. v. Raj Gopal Asawa (2004), the court opined that an agreement of dowry is not necessary and that the definition of dowry includes the time period of not only before and during the marriage but also the period after the marriage has happened.
On the argument of the accused that the date of physical assault and harassment has no proximity with the date of death of the victim, the court said that it must be noted that she died within a few months of her marriage and the time period given under Section 304B IPC is seven years. The Court referred to the case of Surinder Singh v. State of Haryana (2014), where it was held that the time period would differ in every case. It must be examined according to the facts and circumstances of each case.
While considering his application for bail and suspension of sentence, the court said that the nature of accusations, seriousness of offence and its impact on society must be considered. In the present case, a young lady has committed suicide due to continuous ill-treatment and harassment by her husband is not normal for her. The court further said that the intention of the legislature is to eradicate the evil of dowry from society and for this, Section 304B and Section 113B have been introduced in IPC and the Indian Evidence Act, 1872 respectively. In lieu of this, the application of the accused was dismissed and his conviction was upheld.
Social implications of dowry deaths
Marriages are considered as sacrament in our society and religious importance and values are attached to it. According to Hinduism, it is a dharma to get married. However, certain social evils have affected its sacred nature. Incidents of dowry deaths, murder, bride burning etc, have turned out to be an unfortunate development for our social system. Women in our society are tortured, abused and harassed badly due to the demand for dowry. Sometimes, this greed for dowry increases to the extent that it takes away the life of a woman. During the last few decades, such incidents of dowry deaths increased immensely. Women were not only tortured, beaten, harassed or abused but also burnt alive if their parents were unable to fulfil the demands of their husbands and in-laws.
The condition worsened day by day and grabbed the attention of legislatures. They understood the seriousness and gravity of the issue and to reduce its growth, took several measures. The Dowry Prohibition Act, 1961 was the first step in this regard. The object of enacting such legislation was to prohibit the evil of giving and taking dowry. This Act was further amended to curb the evil of dowry and eradicate the menace from society. Offences under the Act were made cognizable, which means that the police officer can now arrest the accused without a warrant and proceedings can be initiated against him. Furthermore, penalties were made stringent and new courts were established to deal with such matters etc.
Apart from this, dowry-related provisions were also recognised and made punishable under the Indian Penal Code. These are:
One of the major issues with such offences is that these are committed in private in a home secretly, so direct and independent evidence is hard to find as a result of which, people accused of such offences could escape easily. To deal with such loopholes Section 113B was inserted in the Evidence Act, 1872 where the burden of proof was reversed and put on the husband and the in-laws.
It is a shocking but harsh reality that the evil of dowry deaths has major implications on our society and the institution of marriage. It majorly affects the life of woman who faces torture and harassment, takes away her life and if by chance she is alive, she is not able to gain confidence to lead the rest of her life. It surely leads to gender discrimination, increases crimes and violence against women, declines her social status and self-esteem, affects the sacred nature of marriage etc.
Even today, this evil has not been uprooted from society. This can only be achieved by strict enforcement of laws, empowerment of women, awareness of rights and laws, financial aids and especially reporting of crimes. Since the problem starts at home, its solution also lies there. Proper education must be imparted to children regarding the social issues and evils prevailing in our society. Boys must be taught to respect girls; girls, on the other hand, must be encouraged to raise their voices against any evil or offense faced by them. It is only with the cooperation of law enforcement agencies, the, government, and the people that this social evil can be eradicated from its roots.
Conclusion
Atrocities against women have not come to an end. A survey held in 2021 shows that the reported number of dowry deaths in the country is 6.8 thousand, which is less than that in 2014 but the situation is not better yet. There is a long run to go until this figure turns to zero. Their situations worsened during the lockdown due to COVID-19. They had to face domestic violence in their own houses and were helpless as they couldn’t go out to seek help.
We are living in the 21st century and it’s necessary that we treat women with dignity and respect. Women continue to be victims, despite numerous laws existing for their protection. This means that the lack of legislation is not the problem but the attitude and behaviour towards women is, and such attitude has to be changed. Education channelised in a correct way can be a solution to this problem because when a problem starts from a house, its solution can also be found in that house. The need of the hour is to educate every woman about her rights and empower her to the extent that she can report such acts. They must be given financial help to make them independent enough to lead a good life.
Frequently Asked Questions (FAQs)
Was the accused in the Vismaya dowry death case convicted?
Yes, the husband of the victim was convicted for the offence committed. He was awarded 10 years of imprisonment and made liable to pay a fine for the same.
Who led the investigation in the Vismaya dowry death case?
DySP P. Rajeev Kumar investigated the case and submitted the charge sheet within 80 days.
What was the name of the public prosecutor in the Vismaya dowry death case?
G. Mohanraj was the special public prosecutor in the present case and is a renowned advocate under Kollam Bar Association.
What is the age of Kiran Kumar, husband of the victim in the present case?
Kiran Kumar, aged 31 years was accused and convicted in the Vismaya dowry death case.
What items are excluded from dowry?
The Act does not provide a penalty for giving or taking items:
Gifts or presents that are given to the bride during marriage without any demand and those are mentioned in a list according to provisions of this Act.
Presents given to the bridegroom during marriage without any demand must be mentioned in the list. However, these presents must not exceed the financial status of the person giving them.
Who represented the accused in the Kerala High Court in the present case?
Advocates who appeared on behalf of the accused were Adv. Priya Shanavas, Adv. T.S. Sarath, Adv. V.C. Sarath and Adv. Mohapraseed Mohan.
Can there be any agreement for giving or taking dowry?
No, there can be no such agreement. According to Section 5 of the Dowry Prohibition Act, 1961 such kinds of agreements are void.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Organizations around the globe are facing an inevitable challenge to enhance their ability to meet the ever-changing customer demands, and to fulfill this very essence, businesses require Human capital, i.e., a diverse workforce that is able to accomplish the changing demands of the customer market. Longevity to stay in the market and provide the best customer service is what makes great organizations differentiate from their competitors. Organizations need self-driven goal focused, upskilled employees, and this is exactly where the term employee engagement comes into the picture. To add to the current competitive market, the advancement of new Technology such as AI and ChatGPT has made it all the more evident for Organizations to focus on their present employee engagement activities. You need a highly engaged workforce that can not only perform but also outweigh your organization’s performance and excellence.
Effective employee engagement works out as a reflector of an organization’s performance, i.e., the higher the level of employee engagement in the organization, the higher the chances of the organization meeting the set goals. Several studies and surveys around the Globe have outright explained the significance of employee engagement in all business units. Gallup Surveys have clearly defined how employee engagement is directly attributable to an organization’s high performance. These surveys/researches are based on scientific linkage to critical performance indicators, which explains how businesses with a high degree of employee engagement have a fair 83% chance of performing well as compared to businesses with a low degree of employee engagement, which have only a 17% chance. A survey conducted by Watson Wyatt Worldwide concluded that highly engaged employees result in 26% higher overall revenue.
Employers now understand that employee engagement is one of the fundamental principles that allow businesses to exist and flourish. It is one of the tools that minimizes the attrition rate. They are emphasizing increasing employee engagement and thereby decreasing the high revenue costs incurred due to disengaged employees, who overall act as a liability for the Organization.
Evolution of the Concept of Employee Engagement – Organizational psychologist William Kahn (1990) is called the father of employee engagement. His theory is based on three psychological conditions: meaningfulness-does an employee find his work meaningful, safety- does the employee safe in the work environment?—and availability-is the employee able to completely harness his mental and physical selves at the present moment?
Kahn’s theory of employee engagement has a threefold impact on an organization: first, customer happiness; second, high employee retention; and last but not least, employee satisfaction.
Definition of employee engagement
In simple words, one can explain employee engagement as engaged employees in an organization or business unit who are motivated, dedicated, and emotionally attached to the Organization. Employees who understand the basic core philosophy and values of the Organization and how focused they are on helping their organization’s growth and profit Engaged employees know what is going on in their organization, they thrive to assist the goals of their organization, and they add value to the Organization.
Employee engagement is a two-way process. Employees tend to be engaged in those Organizations that are focused on their overall well-being. It is a process that establishes a relationship between an employee and employer where both are interdependent and sentimentally attached to each other. Engaged employees tend to stay for a longer duration in an organization in comparison to disengaged employees. The graph trends for exiting employees are dramatically low in organizations where employee engagement is given precedence like any other process in the organization.
Role and importance of an HR manager in effective employee engagement
The prime onus of implementing an effective and result oriented employee engagement program entirely lies with the HR manager. HR managers are the Action takers to foster effective employee engagement. Some of the key roles that a HR manager plays in employee engagement are enumerated below:
Prime focus lies with HR on attracting engaged employees, i.e., new employees entering the Organization must understand their FIT in the organization.
The first bonding or interaction a new employee has with the organization is through onboarding. HR managers can make onboarding an engaging activity and add human touch to the process, which makes the new person more drawn to and inclined to the organization’s culture.
HR managers need to emphasize the importance of providing budget provisions for employee engagement. Employers must understand that employee engagement is a continuous and ongoing process that runs parallel to the core business.
HR managers are supposed to audit the existing employee engagement programs and focus on sustained engagement. They need to conduct gap analysis, identify the issues with respect to the current engagement program, and try to abbreviate the gaps with activities that supplement and enhance employee engagement.
HR managers need to talk, listen, and get feedback from employees about how they feel about their organization and what resources, facilities, and activities make them proud to be associated with it.
The feedback gathered needs to be statistically analyzed, and employee engagement data is required to be prepared and periodically monitored. An employee engagement program can only be effective when it is not considered merely an annual feedback activity.
HR managers require the data to be maintained and monitored, but the prime focus is to be on developing the employees and building their passion and commitment to the Organization.
Compensation is definitely an important motivator for an employee to stay in an Organization that pays him well, but as per the recent Harvard Management Update, the New Retention strategy is focusing on Individuals. The study states that all employees cannot be judged on the same parameters. One employee may really enjoy the compensation benefits, and another may like to go with the low wages but appreciate the career growth opportunities. Therefore, employee engagement cannot solely focus on the compensation part attributed to high employee engagement.
HR managers must ensure that they differentiate between monetary and non-monetary rewards to have effective employment engagement. A simple rule to be followed when providing monetary rewards is “Strike the iron while the hammer is hot.” Non-monetary rewards such as pats on back, best employee of the week, Organization paid vacations, free food coupons, etc. all boost and drive the employees to endeavor to perform better every time. At the same time, HR managers must keep an eye out so that only strong performances are recognized and rewarded. Mediocre performance rewards lead to monotonous work, which in the long run will be futile.
Employees love to stay with organizations that facilitate and promote career growth by developing and acquiring new skills. A proper assessment needs to be carried out in the present scenario of AI technology, in which new technical skills are required to be imparted to the deserving employee workforce who can upskill themselves and effectively implement their new technical knowledge.
HR managers must focus on the fact that employees are doing meaningful work and understand what and why they are doing. Expectations must be clearly identified regarding the performance and responsibilities assigned to them, i.e., to define clear performance management activities.
Work life balance plays an important role nowadays, and during COVID times, employees now very well understand the culture of hybrid work. Employees know the concept of working from home and how this can be utilized to maintain a work life balance. HR plays a role in facilitating such flexible work arrangements.
HR managers are required to allow employee participation to enhance employee engagement. Employees feel valued and recognized in an organization when their suggestions and ideas are implemented.
HR managers play a vital role in designing a personalized and tailored employee engagement program. Employee engagement varies from organization to organization, and the metrics and parameters to be defined vary for each organization. It is exactly here where HR comes into the action of designing an employee engagement program that, at one end, caters to the needs and requirements of employees, keeping them happy and bragging about their organization, and, at the other end, enhances productivity, profitability, and customer ratings.
Employee engagement programs must not be enforced on employees; they should be designed and implemented in a manner that simply flows, blends, and paves their way into existing work culture. HR managers have to ensure that the learning systems are not controlled and are inexorably accepted by the employees.
HR managers are the first line of contact for employees when they face any issue or aren’t happy about any work situation. Employee engagement is to be designed as Engagement by employees towards the work through self-reflection and positioning themselves in the organization.
Conclusion
Employee engagement trends are still in the evolving phase, and they will continue to evolve and project new concepts of employee satisfaction. Employees now entering organizations are from the Z generation, who seek parity in every sphere, whether it be monetary or non-monetary benefits. Young employees tend to have a growth mindset that is not confined to money only. Now employers understand that mere production of services cannot be the only parameter to make them thrive and flourish in the competition; one has to have upskilled employees who can contribute to new ideas and innovations and give employers an edge over the competitors. Young employees are passionate and more pragmatic, organizations require employee engagement to keep them connected to their work profiles
No doubt the COVID situation has demanded a 360-degree review of the existing processes, but at the same time, employers have also understood that it’s the engaged masses who keep on running the businesses even in difficult economic times. In the recent decade, Employee engagement has promoted a strong participatory culture in organizations and has universally vouched for “Bringing out the best in people.”
In a 2015 interview with Workforce Magazine, William Kahn summarized how managers could apply his theory:
“Approach employees as true partners, involving them in continuous dialogues and processes about how to design and alter their roles, tasks, and working relationships—which means that leaders need to make it safe enough for employees to speak openly of their experiences at work.”
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Did you ever book a bus/train/flight ticket online? Have you booked a cab online? Have you transferred money online? Have you scheduled an online consultation with your doctor? Then you have already used an e-Commerce Website. Any website that provides or becomes the medium for a buyer and seller to get into a deal for selling its products or providing its service can be called an e-Commerce Website.
In this busy world, we are all used to these websites. In the term “e-Commerce”, e stands for electronic, and the term e-Commerce refers to any commercial activity that involves the buying or selling of goods and services via the internet.
Although online shopping is famous in India, very few people prefer to order online. There have been a few instances in which people have started buying online more often. For example, in the Big Billion Day Sale, the Amazon Shopping Festival, and also during COVID time, most people have become tech savvy, and it has now become routine.
Introduction
In today’s world, most companies have integrated their business with the internet to network with or communicate with their clients anywhere in the world. These Businesses don’t necessarily need to have their office/store in every country, state and city, saving on costs for such premises, ease of accounting by maintaining the record of sales automatically, etc. These transactions are definitely helping both parties in various ways.
Growing businesses opt for free delivery of goods and services and offer good discounts for payments made online at your doorstep by hitting a button. Also, there are Cash on Delivery or Pay on Delivery options available for Online Shopping. These benefits attract customers. These transactions can be termed as e-Commerce transactions.
Most people have become tech savvy, lazy, or busy, so they can’t wait in long queues for buying goods and services anymore, and online shopping has made it easy. They can choose from a wide range of goods and services. Now they can even book a health checkup sample collection or eye checkup at home, online in app doctor consultations, etc. Various services can be booked, and the same can be availed online just by clicking on the button. It is that easy.
Types of e-Commerce
There are various types of e-Commerce. A few of them are:
B2C- B2C
It is Business to Consumer and is the most commonly used e-Commerce. Amazon, Flipkart, and various such businesses deal with customers by selling their goods and services directly.
B2B- B2B
It is Business to Business and it involves transactions between business and business to sell their goods and services. Like IndiaMart and Truecaller providing services to businesses by promoting their businesses.
C2C
Consumer to Consumer where individuals can sell products or services to other individuals. Like Olx and Quikr.
C2B
Consumer to business, where an individual provides their product or service to businesses. Like a Freelancer who provides their software development services at Fiverr to IT Companies.
Which laws are applicable to e-commerce transactions
In any business, it is always possible that there will be conflicts between both parties and necessary compliance by the business. In such cases, the laws or terms and conditions should be known for easy resolution. When certain Terms and Conditions of the company and Laws contradict each other or are unclear and no parties to the contract are ready to compromise. It becomes necessary to know which laws to apply.
The laws vary from country to country and that can be a problem. It becomes easy when there are Treaties and Conventions between different countries to determine the laws that are applicable to such transactions to determine jurisdiction and Laws. Laws vary based on Jurisdiction and Cause of action.
However, it doesn’t supersede local laws, and local laws will definitely have more value. So when international e-commerce transactions happen, the legal knowledge regarding applicability needs to be known. In respect to Indian e-Commerce transactions. The laws that are applicable are:
India Contract Act, 1872
It lays down the essential elements of Contracts in India. There is a contract between the buyer and seller, and so we should know there should be rules and regulations that are applicable to the transaction. This is an online transaction; we can say that it is an online contract. So it is applicable to such contracts.
Criminal Procedure Code
It governs the procedure for the investigation and trial of criminal offences. If there is a criminal offence involved in an e-Commerce transaction where one party has committed fraud, cheating, etc. in regards to the transaction, then this will apply.
Civil Procedure Code
It lays down provisions for the place of suing, and both parties in the contract can approach the appropriate court. This will apply to e-Commerce transactions because most contracts are of a civil nature.
Indian Penal Code
The provisions of the Code will apply when offences like forgery, fraud, cheating, and impersonation happen in an e-Commerce transaction.
Consumer Protection Act, 2019
It contains provisions related to consumer rights, consumer dispute redressal, product liability, unfair trade practices, etc. This provides legal framework for protection of consumer rights and interests in India
Competition Act 2002
It contains provisions to promote fair competition in the market and prevent any anti competitive and unfair trade practices.
Information Technology Act, 2000
This provides legal recognition for electronic media and establishes provisions related to data protection, cyber security, and third party liabilities in e-Commerce transactions. It is the primary legislation governing e-Commerce in India. The data of customers is personal and sensitive, so if a business collects such data from its customers, then it is the duty or responsibility of the business to protect it from misuse and from getting into the wrong hands.
Income Tax Act
It is a direct tax applicable to all the transactions specified in the Act in India. It governs the taxation of Income earned in India, and if the business generates income from e-commerce, then such income will certainly be taxable under the Income Tax Act. If the buyer or seller is a foreign individual or company and the transaction falls under specified categories, then TDS and TCS will be applicable to such e-Commerce transactions as well. They would have to comply with the Income Tax Act.
Goods and Service Tax Act:
It is an Indirect Tax applicable to goods or services. Any Business that provides Goods and Services with a certain turnover will be obligated to have a GSTIN and file GST Returns. So they will have to follow the GST Act and comply accordingly.
Why is a place of suing or cause of action necessary in cases of disputes in e-commerce
Jurisdiction
There are two types of Rights and Claims available to a party or parties to the Contract. They are as follows:-
Jus in Personam
When Rights are enforceable against an individual, such a right can be called jus in Personam. Only that person is obligated to fulfill the duties and is liable for any loss or harm caused. The claims of rights or interests are in person. Contractual rights or Tortious Claims can be examples of Jus in Personam.
Jus in Rem
When Rights are enforceable against a specific thing or property, such a right can be called jus in Rem. The rights are enforced by actions or claims against specific property only. The claims for rights or interests are against tangible and intangible assets.
The terms and conditions may vary for each company, even in the same field. But the laws are the same for particular jurisdictions.
– Then they resort to resolution through a judicial authority that is impartial to both parties. It can become difficult to determine jurisdiction when it comes to international e-commerce transactions where both parties are located in different countries, so they can go with ODR (Online Dispute Resolution). Most Companies mention their jurisdiction so that it is easy for both parties to decide which court to approach.
– The Indian Contract Act, 1872, is now applicable to the State of Jammu and Kashmir also, making it applicable to the whole of India. Similarly, the IPC (Indian Penal Code), CrPC and various Acts have become applicable on J&K after its Reorganisation. This is how the laws enacted can play a role in finding/deciding the jurisdiction of the case.Similarly, any place outside India falls under some law, convention, or treaties and accordingly the jurisdiction is decided.
To determine the jurisdiction, it is necessary to understand the nature of business is being carried out, cause of action, the addresses of plaintiff and defendant, applicable laws and regulations, etc
Cause of Action
Depending on the cause of action, we can understand which laws to apply. It can be Contractual or Non Contractual. When any business is located in a country, it is obligated to follow certain laws, rules, and regulations of that country. These can be the causes of action:
Breach of Contract
Any party to the Contract fails to fulfill his part, like a delay in delivery where time is a constraint, supplying defective goods, an item missing, non-payment or other aspects of the contract that are essential for performance. Such nonperformance becomes a cause for action.
Non Compliance
When the certain obligations are imposed by the local government, they must be complied with and non compliance will lead to cause of an action
Unfair Trade Practice and Anti Competition
When the conduct of the seller is defective, deceptive, anti competitive and misleading by ways of false advertising, any act which is unfairly affecting the business in competition will become a cause of action.
Fraud or Misrepresentation
If any party uses deceptive ways to manipulate a transaction, that can also be a cause of action, and it can be anything like intentionally providing false information, cheating, or misrepresenting facts about any good, such as price, quality, etc.
Consumer Protection Violation
Consumer Protection involves Consumer rights, preventing consumers from getting misled by false pricing, unfair terms and conditions, etc., and failure to provide these to consumers can be called a consumer protection violation.
Conclusion
All these laws help in understanding the jurisdiction (place of suing), cause of action, and possible outcomes of any disputes in regards to e-Commerce. The laws in regard to e-Commerce Disputes should be progressive, as they are something that keeps evolving as time goes by. For now, buyers and sellers should both know their rights and duties. They must abide by laws and understand that whenever they have any dispute, it is better to clarify with the other party first, and if they don’t agree, they can approach the court for justice. Any dispute in this world can be solved by the parties involved in it by having a word, and as disputes increase, the burden on the courts increases, and both parties have to bear the cost and give their time. A Genuine Seller would not like to waste his money and time fighting with his customer without any reason, and this would simply tarnish his image in the market. The Company should mention the Jurisdiction where they can be sued so that the buyer can file suit accordingly.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article is written by Nishka Kamath (team iPleaders) and edited by VanshikaKapoor (Senior Managing Editor, Blog iPleaders). This article will cover in-depth all the necessary information that a judicial aspirant aiming to clear the Maharashtra Judicial Service Exam or JMFC Exam must know. Each topic, like the official Notification published by MPSC in 2023, eligibility criteria, educational requisite qualification, important dates, stages and syllabus of the JMFC exam, books to refer to, and a plethora of FAQs that may occur in the mind of an aspirant while preparing for the Maharashtra Judicial Service Exam, or the JMFC exam, are discussed in great detail.
Table of Contents
Maharashtra Judicial Service Exam 2023-2024
Recently, the Government of Maharashtra issued a Notification announcing the vacancies for the Civil Judge Junior Level and Magistrate First Class Prelims Examination. However, you must have noticed it was published in Marathi; so in order to help a judiciary aspirant understand the Notification better, this article is an attempt to shed light on all the important points stated by the Maharashtra Public Service Commission (MPSC) in English.
Please Note : This article is all about the Maharashtra State Judiciary Exam and is not related in any way to exams conducted for the posts of IAS (Indian Administrative Service) or MPSC (Maharashtra Public Service Commission) police officers.
Although, the Maharashtra Judicial Service Exam is, at times, also referred to as-
Maharashtra Public Service Commission (Civil Judge Junior Division) Exam,
Civil Judge Junior Division (CJJD) Exam, and
Judicial Magistrate First Class (JMFC) Exam.
Generally, people in Maharashtra know this exam by the titles JMFC Exam or CJJD Exam.
Maharashtra Judiciary (JMFC) exam : an insight
The examination for Civil Judge Junior Division and Judicial Magistrate First Class will be conducted almost every year by the Bombay High Court and MPSC for the recruitment of the roles of Civil Judge (Junior Division). The following candidates can appear for the examination :
Ministerial staff,
Advocate,
New law graduates.
A total of 114 vacancies have been announced by the MPSC Recruitment Board. This exam is also called the MPSC Civil Judge Exam, JMFC (Judicial Magistrate First Class), and CJJD (Civil Judge Junior Division).
The exam is conducted in three stages, namely-
Preliminary,
Mains, and
Interview round.
Here, a Maharashtra judiciary aspirant will get all the information related to the MPSC exam, including the eligibility criteria, the application submission dates, the dates of exams, the dates of issuance of results of all the exams, the procedure to apply for the exams, and the payment of fees, inter alia.
For Frequently Asked Questions on the Maharashtra Judiciary Exam, please check the FAQs section.
Some important points to note
The examination for the 114 vacancies for the post of Civil Judge Junior Level and Magistrate First Class Cadre will be conducted by the Maharashtra Public Service Commission (MPSC) in several district centres in Aurangabad, Mumbai, and Nagpur.
The dates of the Mains Examination will be announced separately for candidates who successfully clear the Preliminary examination.
All the posts received through revised or additional requisition forms from the Government until the finalisation of the Preliminary results will be considered, and the details of such revised/additional demand letters will be made available through the Main Examination Notification.
Applicants have to apply for the examination via the online application system of the MPSC, provided they fulfil the eligibility criteria (discussed in detail below) stated in the official Notification.
Tabular representation of details of the Maharashtra Judiciary exam
Eligibility criteria for the Maharashtra Judicial Service Exam
Before a candidate thinks about appearing for the Maharashtra Judicial Service exam, also known as Civil Judge Junior Level and Magistrate First Class Exam, it is crucial that one has a look at the eligibility criteria for applying for the exam. The Maharashtra Judicial Service exam is discussed in great detail below.
Nationality criteria for Maharashtra Judiciary (JMFC) exam
Candidates who are Indian nationals and possess India’s citizenship are eligible to apply for the Maharashtra Judicial Service exam.
Age criteria for Maharashtra Judiciary (JMFC) exam
There is a minimum and maximum age limit for candidates applying for the Maharashtra Judicial Service exam. Below is a tabular representation of the same.
Category
Minimum age limit (in years)
Upper age limit (in years) for “Amagas” meaning general category
Upper age limit (in years) for “magas vargiya” meaning backward class
Fresh Law Graduates
21
25
30
For Practising Advocates/ Pleaders and Assistant Public Prosecutors belonging to the SCs, SC(A)s, STs, MBCs/DCs, BCs, BCMs, and Destitute Widows of all categories.
21
35
40
For others
21
45
50
Educational qualification criteria for Maharashtra Judicial Service (JMFC) exam
To appear for the Maharashtra Judicial Service Exam in 2023, it is vital for the candidates to possess the minimum educational qualifications. The same has been discussed in a tabular format below:
Category
Qualifications
Experience
For Fresh Law Graduates
The candidate must possess a Degree in Law. further, he/she must pass all the examinations (yearly semesters and the like) in the very first attempt.
The candidate should have passed the final year of Bachelor’s of Law or their final year of Master’s of Law with at least 55% on or before 19th May, 2023.
No experience required.
For Lawyers, Attorneys, Barristers and Advocates
The candidate must have a degree in law.
The candidate has to possess at least 3 years of experience in the legal profession, either as an Advocate, Attorney, or Barrister. He/she must be either practising in Bombay High Court or subordinate or lower courts thereto.
Public prosecutors shall also be treated as judicial professionals under this category.
For Ministerial Staff like the Members of the Ministerial Staff of the High Court, Ministerial Staff of the subordinate Courts or its member, Legal Assistant in the Legal Division of the Ministry of Law and Justice, Ministerial Staff including Members of Staff of High Courts, City Civil Courts and District Courts, Ministerial Staff of the Public Prosecutor’s Office and such members
The candidate must have a degree in law.
The candidate must have completed at least 3 years of service on or before 19th May, 2023, after completing his/her graduation in the field of law.
Ineligibility and disqualification grounds for the post of Maharashtra Judicial Service officer
The following types of candidates shall be disqualified from the post of being appointed as a judicial officer, JMFC, or MPSC:
The candidate has been compulsorily retired from judicial service or from the service of a Government, statutory, or local authority.
He/she has been removed, dismissed, or has not completed the probationary period of any post in the judicial service or in the service of the Government, statutory authority, or any local authority.
He/she has been held guilty of any wrongdoing that involves moral turpitude or been disqualified or dismissed forever from attempting any exam conducted either by the High Court, the Union Public Service Commission or any State Public Service Commission;
Or if the candidate has directly or indirectly made an attempt to influence the recruitment authority in any way for the candidature.
Further, the candidate shall also be disqualified if he is a male and has more than one surviving wife.
Furthermore, the candidate shall be disqualified from giving the Maharashtra Judicial Service exam if she is a female and is married to the surviving male spouse and has more than two children.
In case of any doubts or queries, please visit the FAQs section for general questions.
Stages of examination for the position of Maharashtra Judicial Service officer/ judge
The Maharashtra Judicial Service examination will be conducted in three stages, namely:
Preliminary Examination (100 marks),
Mains Examination (200 marks), and
Interview round (50 marks).
Let us take a look at each of the papers in detail.
JMFC Preliminary Exam (100 marks)
The Preliminary Examination, known as the pre-examination stage, will be an objective (Multiple Choice Questions – MCQs) based examination. The Prelims Exam will be of 100 marks and the language of conducting the exam will be English. The Maharashtra Judiciary Online Prelims Exam will consist of 100 questions, each carrying one mark.
If you have any doubts or questions regarding the Maharashtra Judicial Services Prelims Exam, you may visit the FAQs section on the Preliminary Exam.
JMFC Mains Exam (200 marks)
The Mains Exam will be conducted in the conventional method, i.e., offline mode, for a total of 200 marks. There will be two question papers of 100 marks each. The exam will be conducted in English and Marathi.
For more information on the Mains exam, please visit the FAQs section on the Mains Exam.
JMFC Interview round (50 marks)
Candidates who have cleared the Mains Examwill be eligible for the final selection, i.e., the post of civil judge or JMFC. This round will consist of 50 marks and will include an interview round and personality test. Candidates have to prepare thoroughly to clear this round. They must score higher than the minimum requirement to pass this round and subsequently be appointed for the post of civil judge or JMFC. The interview round will be conducted by a panel that will evaluate a candidate’s character, personality, general knowledge, and his/her suitability for the post.
For more information on the interview round, please visit the FAQs section.
Maharashtra Judicial Service (JMFC) Exam syllabus
Syllabus for the JMFC Exam
Aspiring candidates must focus on the following subjects to clear the preliminary stage:
The Code of Criminal Procedure, 1973;
The Civil Procedure Code, 1908;
The Indian Evidence Act, 1872;
The Transfer of Property Act, 1882;
The Specific Relief Act, 1963;
The Maharashtra Rent Control Act, 1999;
The Limitation Act, 1963;
The Constitution of India (as amended),
The Indian Penal Code, 1860;
The Indian Contract Act, 1872;
The Sale of Goods Act, 1930; and
The Indian Partnership Act, 1932.
Syllabus for the JMFC Exam
Aspiring candidates for the Maharashtra Judicial Service must focus on the following subjects to clear the Mains Exam:
Syllabus for Paper-1
Aspiring candidates for the Maharashtra Judicial Service must focus on the following subjects to clear Paper-1:
The Civil Procedure Code, 1908;
The Transfer of Property Act, 1882;
The Specific Relief Act, 1963;
The Indian Contract Act, 1872;
The Sale of Goods Act, 1930; and
The Indian Partnership Act, 1932.
Syllabus for Paper-2
Aspiring candidates for the Maharashtra Judicial Service must focus on the following subjects to clear Paper-2:
The Indian Penal Code, 1860;
The Indian Evidence Act, 1872;
The Code of Criminal Procedure, 1973;
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989; and
The Protection of Civil Rights Act, 1955.
An essay on any recent developments in the field of law or any legislation, which has to be approx. 800 words.
Some tips and tricks on how to study for the Maharashtra Judicial Service (JMFC) exam
Read Bare Acts several times.
Go through landmark judgements by all the High Courts and Supreme Court.
While making your own notes, use interesting methods like charts, diagrams, pictorial representations of the study, and keywords to remember the topic with ease.
Make your own notes, and at the end, add a synopsis of each topic. You can revise them a day before your exam.
Books to refer for the Maharashtra Judicial Service (JMFC) exam
Top five tips before buying books for the Maharashtra Judiciary (JMFC) exam
Before we proceed on to referring which books to refer for acing the Maharashtra Judicial Service Exam, it is important you make a note of the following pointers:
When you buy the book, ensure it is the latest edition.
Once you have bought the book, do not keep buying the latest editions of the same book.
Do not listen to anyone. Select one book and stick to it. One might say Universal’s book is good; another candidate would prefer Singhal over the former. It depends on you which book you choose and once you do, kindly ensure you have gone through the whole book before you even think of buying another one.
The books will be slightly priced at a higher rate, so be very picky about which books you buy.
If you buy one book, stick to it. Do not keep switching from one book to another.
Now that we have looked at the above pointers let us have a look at which books to refer to for the exams.
Suggested books for the Maharashtra Judiciary (JMFC) exam
Subjects
Name of the books
Publisher/Author of the books
Books specifically designed for the Maharashtra Judicial Service Prelims and Mains Exam
Maharashtra Judicial Service (Preliminary) Examination: The Complete Preparation Manual
The Law of Evidence: Including the Criminal Law (Amendment) Ordinance, 2018
Nil
Batuk Lal
K. A. Pandey
Dr. Avtar Singh
Ratanlal and Dhirajlal
The Transfer of Property Act, 1882
Mulla on the Transfer of Property Act, 1882
The Transfer of Property Act
The Transfer of Property Act
Dinshaw Fardunji Mulla
S.N. Shukla
RK Sinha
The Specific Relief Act, 1963
The Specific Relief Act, 1963
Specific Relief Act
Avtar Singh’s Law of Contract & Specific Relief
Pollock and Mulla
Dr. R. K. Bangia
Rajesh Kapoor
The Limitation Act, 1963
The Limitation Act, 1963
Bare Act
LexisNexis
Nil
The Constitution of India (as amended)
Bare Act
V N Shukla’s Constitution of India
Indian Constitutional Law
Pratiyogita Darpan
Nil
Mahendra P Singh
M. P. Jain
Pratiyogita Darpan Editorial Board
The Indian Penal Code, 1860;
Indian Penal Code
P S A Pillai’s Criminal Law
The Indian Penal Code
Indian Penal Code, 1860, with Classifications of offences and state Amendments
K.D. Gaur
V L Vibhute
Ratanlal and Dhirajlal
LexisNexis
The Indian Contract Act, 1872
Avtar Singh’s Law of Contract & Specific Relief
Law of Contract I and II
Contract – I
The Indian Contract Act
Rajesh Kapoor
S S Srivastava
Dr. R K Bangia
Sir Dinshaw Fardunji Mulla, LexisNexis
Application, submission process and duration of the Maharashtra Judiciary (JMFC) exam
The official Notification was out in May 2023, and the period of submission was from 24th May, 2023, to 13th June, 2023, at 23:59 p.m., after which no applications would be accepted. Further, the last date for making payment for the prescribed fee for the examination through online mode was 13th June, 2023, and in the State Bank of India was 15th June, 2023. Moreover, the last date for making payment of the examination fee via currency was 16th June 2023. Mentioned below is a tabular representation of the dates.
Tabular representation of the application submission dates
Details
Prescribed period
Period for submission of application
24th May, 2023, from 2 p.m. to 13th June, 2023, at 23:59 p.m.
Last date for the payment of the prescribed exam fee through online mode
13th June, 2023, at 23:59 p.m.
Date of taking a copy of Challan in the State Bank of India for payment of the prescribed exam fees
15th June, 2023, until 23:59 p.m.
Last date of making payment for the exam via Challan
16th June, 2023, during official working hours of the bank.
Importance of Marathi language in the Maharashtra Judicial Service (JMFC) exam
All the candidates must possess the ability to speak, read, and write Marathi.
The candidates must be able to translate from Marathi to English and from English to Marathi with ease and fluency.
During the third round, i.e., the interview round, candidates have to produce a certificate in the prescribed format from the following competent authorities:
Attorney or Advocate – Chief District and Sessions Judge / Chief Judge of the concerned district where the candidate is practising.
Fresh Law Graduate – The Principal or the Head of University Department or College where candidate’s name is registered for Law Course, be it LL.B. or LL.M.
High Court and subordinate courts, employees of Departments, Ministries, etc. – under whose control the Service is headed by the Head of Department or the Head of Office.
By re-entry into service of retired Civil Judges (Junior Level) under special circumstances.
All those candidates who do not have adequate knowledge of Marathi language are required to pass the Maarti language test within six months in accordance with the rules set by the Government.
Requirement of evidence of experience for advocates and service employees in Maharashtra Judiciary (JMFC) exam
During the interview round, the candidates have to produce the following certificate relating to their experience in the following format prescribed by the authority:
For advocates
An experience letter has to be obtained either by Chief District and Session Judge or Chief Judge of the district where the candidate is practising.
For service employees
An experience letter has to be obtained either by the Head of Department or the Head of Office under whose control the service is.
Date of calculation of period of educational qualification and experience
The educational qualifications shall be deemed to have been acquired on the actual date of declaring the results of the relevant examination by the statutory university.
The candidate’s educational and other qualifications gained on the date of releasing the official Notification (19th May, 2023) and experience qualifications for further selection will be considered.
Maharashtra Judicial Service (JMFC) exam results
Declaration of results for the Maharashtra Judicial Service Preliminary Exam
Generally, ten times the total number of posts/vacancies depending on merit will be qualified for the Mains examination.
Please note : As the Prelims Exam is a screening test, the marks of this exam will not be considered for the final selection. Further, the marks will not be communicated to the candidates (only the results, i.e., whether they have cleared the exam or not – passed or failed—will be communicated).
Declaration of results for the Maharashtra Judicial Service Mains exam
Successful candidates (candidates who clear the Mains Exam) will be called for the last stage, i.e., the interview round.
The candidate shall be called in a ratio of 1:3 against available vacancies.
Further, if there are candidates who have secured the same final marks that were predetermined to be eligible for keeping the merit ratio of 1:3, then all such candidates will be called for an interview.
The candidate has to score a minimum of 50% in each of the Mains Exam papers to be eligible for the interview round.
In case of candidates belonging to communities recognised as backward classes by the Government of Maharashtra, a score of at least 45% in each of the Mains Exam papers must be achieved to be further eligible for the interview round.
Prescribed specimens of experience certificate
The specimens of Marathi language knowledge as well as the experience certificate are available on the website of the Commission under DOWNLOADS.
It is crucial that the candidate submit the certificate regarding their qualification and eligibility in the prescribed format as amended by the Commission from time to time.
Maharashtra Judicial Service (JMFC) exam : opting out option
The general merit list for the interview round/stage results will be published on the website of the Commission before the final recommendation for the post of Civil Judge, or JMFC.
Alongside the results, the candidates will be given the option of “Opting Out” based on the General Merit List through the online application of the Commission.
Candidates have to submit the “opt out of recruitment” option within the prescribed time limit (as per the 2023 official Notification, the duration is 7 days from the date of publishing the general merit list).
The Commission shall prepare the final recommendation list considering the option of “Exit Recruitment” obtained from the candidates via the online application system.
The candidate shall withdraw from the recruitment process only through the online application system of the Commission within the prescribed period (7 days as per the official Notification).
If the request for opting out is made in any manner other than the one prescribed in the official Notification, such a request shall not be considered in any manner. Moreover, such a request for cancellation will not be obtained at later stages.
Maharashtra Judicial Service (JMFC) exam : final selection
The final selection of the candidates will be made on the basis of the marks scored by the candidates in the Mains Exam and interview round.
Please note : The score of candidates in the Preliminary Exam will not be considered for final selection as it is just a screening test conducted to check a candidate’s ability to become a judicial officer.
Maharashtra Judicial Service (JMFC) exam : waiting list
The waiting list will remain operational for a period of 1 year from the date of declaration of the final result of the judicial officer post or until the date of the outcome of the final result of the next examination, whichever is earlier.
Maharashtra Judicial Service (JMFC) exam : post-entry conditions
A candidate selected for the post of judicial officer, judge, or JMFC has to fulfil the following conditions:
The candidate has to pass all 3 stages of the examination and-
Departmental/Professional prescribed as per the norms laid down by the Commission for that particular exam.
If the candidate has not passed the Hindi and Marathi language test or if he/she is not exempted from passing such a test, then in such a case, that test has to be cleared before appointment.
Certificate Examination in computer handling as prescribed by the Directorate of Information Technology and the Government of Maharashtra from time to time.
A candidate whose name has been recommended for the post of judicial officer has to be working in that position for three years, and at the time of appointment, a bond of Rs. 2,00,000/- (Rupees Two Lakhs) has to be furnished in this regard.
A candidate who has been appointed for the post of judicial officer shall be debarred from practising law for a period of two years from the date of termination of service in High Court or any subordinate court and in such courts.
A candidate has to give a written undertaking stating he/she won’t be practising as a lawyer in any court for a period of two years.
There will be a probationary period of three years after the candidate has been appointed for the post of judicial officer.
Procedure to apply for the Preliminary Exam of the Maharashtra Judicial Service (JMFC) exam
Steps for submission of application
One has to follow the following steps to submit an application for the Maharashtra Judicial Service Exam:
Create an account. If you have already created an account, choose the option of updating it, whatever is needed.
Upload the necessary documents as stated in the prescribed manner and within the specified time period.
Submit the form.
Make payment of the examination fee as stated on the page.
Select the district for the examination centre.
Uploading the prescribed documents and requisite certificates
Only those candidates who are claiming reservation, like sportspersons, physically disabled individuals, ex-servicemen and orphans, while submitting an application for pre-examination in pursuance of various claims made through their profiles have to submit/upload additional documents/certificates (as applicable) while submitting the application.
After checking the eligibility of the candidates who are claiming reservation for athletes, disabled, ex-servicemen and orphans as per the advertisement, it is mandatory to upload the following documents/certificates (as applicable) while submitting the application:-
Certificate/document
File format
Minimum size of the file (in kb)
Maximum size of the file (in kb)
Proof of being an eligible PwD (as applicable) domicile certificate
PDF
50 kb
500 kb
Proof of being eligible under the reserved category involving OBCs, SCs, STs, etc.
PDF
50 kb
500 kb
Candidates have to compulsorily submit the prescribed certificates/documents.
Sportsmen, disabled candidates, ex-servicemen and orphans will not be able to submit their applications without uploading all the certificates/documents that satisfy their claims.
General instructions relating to the application form
Only the forms submitted through the online application system of the Commission will be accepted and not otherwise.
All the details regarding the submission of application form are made available on the official websites of the Commission, i.e., https://mpsconline.gov.in and https://mpsc.gov.in.
Only those application forms will be considered for the Prelims Exam whose examination fees are paid within the prescribed time period.
Selection of District Centre for the Maharashtra Judicial Service (JMFC) exam
The candidates have to select the District Center while they are submitting the application form.
No requests for changing the District Center shall be entertained under any circumstances or for any reason whatsoever.
In situations where a District Center fails to function or if the capacity of the centre exceeds its capacity, the meeting of the candidates will be arranged at the nearest District Center.
The Commission will not give approval for any requests relating to the change in the District Center/Sub-Examination Center once selected or fixed by the Commission for any reason whatsoever.
In case if the process of District Center is not completed, the nearest District Center with regards to the permanent residential address given by the candidate in the application form will be allotted.
The decision taken by the Commission shall be considered final.
Payment for the Maharashtra Judicial Service (JMFC) exam fees
Examination fees for the Maharashtra Judicial Service Exam
The examination fees for the Maharashtra Judicial Service Exam is as follows:
Fees for the Amagas (general category)
The examination fees for candidates belonging to the general category is Rs. 394/-.
Fees for the Magas Vargiya (reserved category or backward class) and disabled
The examination fees for the candidates belonging to the reserved category is Rs. 294/-.
Please note : In addition to the examination fees, the bank charges and the taxes payable thereon, if any, will be additional.
Some points to note while making the payment of examination fees
The examination fees, once paid, cannot be refunded. Thus, it is non-refundable.
After clicking on the ‘Submit and Pay fees’ button available after completion of the application submission steps, click on the “Pay Now” option in front of the advertisement/post/examination where the current status is written as “Fees not Paid”. In the list of categories/examinations applied for under ‘Mukh Account’ Exam fee can be paid by clicking on this link.
Modes of payment of examination fees
The fees for the examination can be paid in two ways, namely:
Online mode, and
Offline mode.
Let us take a look at each mode in detail.
Online mode
Payment for fees may be made via credit card, debit card, netbanking, or through any payment gateway provided by State Bank of India (SBI) as well as the system.
While paying the examination fee, after the amount of examination fee is deducted from the bank account, the message that the payment of the examination fee has been successful (Payment Successful) is displayed on the page of the online application system of the Commission, and the receipt of the examination fee is generated.
Do not log out of the relevant page and/or account on the Website.
After paying the exam fee, the candidate will immediately know the status of the successful payment of the exam fee in his profile or from the account itself.
It is the responsibility of the candidate to ensure that the examination fee has been successfully paid and the transaction has been completed by the bank before logging out.
If, for any reason, it is not possible to successfully pay the examination fee online within the prescribed period, a copy of the invoice can be taken for payment of the examination fee offline within two days after the last date of application.
Offline mode
If a candidate decides to make payment of the exam fees by Chalan, he/she has to pay the fees before the prescribed last date at any branch of State Bank of India. This procedure has to be followed during the working hours of the bank. The candidates must have a copy of the Chalan available. However, care should be taken that it will take at least three hours to get the copy of the Chalan and to deposit the fee in the bank.
In case of unsuccessful payment of examination fee, the procedure for repayment of fee or collection of invoice shall be prescribed as per the advertisement/notification.
The procedure and duration for repayment, if prescribed in the advertisement/notification have to be duly followed.
In case if the transaction fails for any reason whatsoever, no complaints in this regard will be entertained by the Commission.
Also, candidates who fail to make payment of the examination fee within the prescribed time period stated by the Commission in this regard will not be considered for the respective recruitment process.
It will be in the interest of the candidate to carefully read and follow all the general instructions stated or published for judicial aspirants on the official website.
Important points to note for handicapped candidates appearing for the Maharashtra Judicial Service (JMFC) exam
The Government of Maharashtra, with a unanimous decision with the Department of Social Justice and Special Assistance, issued a circular on 05th October, 2021, for guidelines for Persons with Disabilities (PwDs). As per the Notification, it is important that actions be taken by the authorised authority from time to time.
The candidates who are incapable of writing answers during the actual examination or those who need the help of a scribe and/or grace period have to obtain prior permission from the authority. For this, a written request has to be made to the Commission in the format prescribed, and all the mandatory certificates and documents must be submitted within seven days from the date of submitting the application to the Commission by the candidate through online mode.
The written request sent to the concerned authority in the prescribed format will be considered only if it is clearly mentioned in the online application as per the official Notification/Advertisement whether the writer is to be arranged by the candidates themselves or through the office of the Commission.
If the candidate does not make any such demand or does not obtain prior permission of the Commission in the prescribed manner, then the candidate cannot seek help from the writer. Further, no grace period will be granted, either.
The list of candidates who are eligible to seek help from writers or to have some extra time/grace period will be made available on the official website. Besides, the concerned candidate will be given an intimation on his/her registered email address regarding permission from the Commission.
It will be in the interest of the candidates with disabilities (PwDs) to avail the benefits given to them. Simply put, the choice to avail the benefits will be purely discretionary.
The candidates must go through the “Guidelines for Candidates with Disabilities” advantages (scribe and/or grace period) provided to them. before he/she applies for the same. The guidelines are published on the website of the Commission.
Maharashtra Judicial Service (JMFC) exam : issuing admit cards
Generally, admit cards of the candidates for all the examinations will be made available via the notification issued by the Commission at its official website (https://mpsconline.gov.in).
Usually, the admit cards are issued 7 days before the exam. A copy of admit card must be downloaded before the examination and must be shown to the invigilator at the time of the examination.
A candidate has to mandatorily bring his admit card at the time of examination; otherwise, he/she won’t be allowed to enter the examination hall.
Once the Commission has issued the admit cards, the candidates will be notified via SMS to their registered mobile number.
The Commission will also publish a notice regarding the issuance of admit cards a week prior to the examination.
If the candidate has not received his/her admit card within 3 days prior to the date of examination, they must immediately contact the Commission along with the requisite proof.
During the examination, a candidate has to carry at least one original identity card, it could be-
Aadhaar card,
Election Commission Identity card,
Passport,
PAN card, or
Smart cards like driving licence,
as well as a photocopy of the original identity card.
In case of e-Aadhaar downloaded from the website of Unique Identification Authority of India (UIDAI) instead of the actual Aadhaar card, the date of Aadhaar generation along with candidate’s name, address, gender, photograph, and date of birth on e-Aadhaar.) and e-Aadhaar will be considered valid only if Aadhaar is downloaded in colour print along with the date of Aadhaar download.
Further, in case of any amends in the names or certificates issued by the Registrar of Marriages (in case of married women), Gazette Notification of change of names or Certificate regarding change of name from a Gazetted Officer and its photocopy must be produced at the time of examination.
The brief details of the exams are presented in the official Notification. If a candidate wants to obtain details regarding any of the following-
Application procedure,
Requisite qualification,
Reservation,
Age limit,
Fee,
General procedure of selection,
Examination scheme,
Syllabus, etc.
he/she must check the website mpsc.gov.in under the “Notices” section under “General Notices” as well as “Examinations”.
It is advised that a candidate have a look at the information in “Civil Judge Junior Level and Magistrate First Class Examination” under Section 66 of the Examination Scheme.
All the information and/or advertisements published on the website of the Commission shall be considered official.
Some important points to note about the Maharashtra Judicial Service (JMFC) exam
Candidates are not allowed to carry or use mobile phones or any other electronic devices (like smart watches, calculators, etc.) in the examination centre at the time of physical test and/or the interview round.
The candidature for the judiciary exam shall be rejected if all essential original certificates are not furnished at the time of the interview.
Selection process for the Maharashtra Judicial Service (JMFC) exam
The selection process for the Maharashtra Judicial Service is in accordance with the Maharashtra Judicial Service Rules, 2008, or as amended from time to time by the Government as well as the Commission. All the amends regarding the selection process will be implemented as per the provisions of the Rules of Procedure.
Candidates who only possess the minimum qualification with respect to eligibility, prescribed qualification, experience, etc., will be eligible for the interview or selection when they pass the necessary exams and not otherwise.
A candidate will only be considered for interview or selection if he/she is eligible for the interview or selection as per the policy fixed or the norms set by the Commission at that time.
Pay scale for the Maharashtra Judicial Service (JMFC)
A judicial officer once selected for the MPSC Civil Judge Exam or Judicial Magistrate First Class (JMFC) will have a pay scale between Rs. 27,700 and Rs. 44,700, along with other allowances payable as per the set rules and regulations.
Please note : The pay scale is subject to change as per the policies (that are subject to change) set by the Government.
Duties and responsibilities of the Maharashtra Judicial Service Officer
Please note : Candidates who are visually impaired or blind are not eligible for the post of Maharashtra Judicial Service officer/judge. Further, as per the directions given by the High Court, those candidates that belong to economically weaker sections would be given preferential treatment.
For more information on the career, scope, and growth of the Maharashtra Judicial Service Exam, visit the FAQs section on the same subject.
Frequently Asked Questions (FAQs) on the Maharashtra Judicial Service (JMFC)
Frequently Asked Questions (FAQs) on Maharashtra Judicial Service (JMFC) exam : Prelims
For how many marks is the Maharashtra Judicial Service Prelims Exam 2023?
The Maharashtra Judicial Service Prelims Exam 2023 will consist of 100 marks.
What is the duration of the Maharashtra Judicial Service Prelims Exam 2023?
The duration of the Maharashtra Judicial Service Prelims Exam 2023 is 3 hours.
Is there any particular syllabus for the Maharashtra Judicial Service Examination Preliminary Paper? If yes, what is it?
Yes, there is a syllabus for the Maharashtra Judicial Service Preliminary Paper, and a candidate has to focus on the following subjects:
The Code of Criminal Procedure, 1973;
The Civil Procedure Code, 1908;
The Indian Evidence Act, 1872;
The Transfer of Property Act, 1882;
The Specific Relief Act, 1963;
The Maharashtra Rent Control Act, 1999;
The Limitation Act, 1963;
The Constitution of India (as amended),
The Indian Penal Code, 1860;
The Indian Contract Act, 1872;
The Sale of Goods Act, 1930; and
The Indian Partnership Act, 1932.
When will the Maharashtra Judicial Service Prelims Exam 2023 be conducted?
The Maharashtra Judicial Service Prelims Exam 2023 will be conducted on 9th September, 2023.
When will the Maharashtra Judicial Service Prelims Exam 2023 results be declared?
The Maharashtra Judicial Service Prelims Exam 2023 results date is yet to be declared.
Should a candidate have his/her focus on mock tests for Preliminary exams and prepare for the Mains Exam only after clearing the Preliminary exam?
No, it is advisable that a candidate start preparing for the Mains Exam along with preparing for the Prelims Exam, as there is hardly a gap of thirty to sixty days between the Prelims and Mains Exams, and a candidate might find it difficult to cope up with an extensive syllabus in such a short time.
How should a candidate prepare for the Preliminary Exam?
In order to clear the Preliminary Exam, it is crucial for a candidate to take a look at the previous year’s question papers, examine the syllabus with thorough scrutiny, and try to get the gist of what sort of questions can be expected in the upcoming examination. Further, it is advised that a candidate study bare acts and case laws and thoroughly practise last year’s papers along with set timers for improved accuracy.
How many mock tests should I practise for the Preliminary Exam, and where do I get them?
A candidate can practise as many mock tests as he/she can for the Preliminary Exam; as the famous saying goes, the more, the merrier! One can get mock tests for the Prelims Exam online. Candidates can also buy books on the subject, which are available in abundance in the market. The list of books has been discussed in detail above.
What are some tips and tricks to prepare for the Maharashtra Judicial Service Preliminary Exam?
The following are the top 3 tips and tricks given by industrial experts that a candidate can follow to prepare for the Preliminary Exam-
Focus on the bare acts.
Solve and try to remember as many MCQs as you can.
Highlight and maybe write down some of the most important provisions from each bare act and revise them on a daily basis. You can also try developing your own codes and stuff for remembering the sections and provisions in a better manner.
Word of advice : Remember to check the bare acts publication date and get the latest one. A candidate can simply find bare acts (with recent amends) online. Once found, or bought, it is advised that the candidate must not keep switching the bare acts to the latest version again and again. Ensure the bare act is in accordance with the syllabus. If there are any amends, you can note them on a separate page or, best of all, use sticky notes!
Do all the states have Prelim Exams compulsorily?
Yes, all the states conduct the Prelim Exams and it is mandatory for a candidate to clear the Prelims Exam to be eligible for the next stage, i.e., the Mains round.
Frequently Asked Questions (FAQs) on the Maharashtra Judicial Service (JMFC) exam : Mains
For how many marks is the Maharashtra Judicial Service Mains Exam 2023?
The Maharashtra Judicial Service Mains Exam 2023 will consist of 200 marks.
What is the duration of the Maharashtra Judicial Service Mains Exam 2023?
The duration of the Maharashtra Judicial Service Mains Exam 2023 is 3 hours for each paper, so 6 hours in total.
What subjects should a candidate study properly to ace the Maharashtra Judicial Service Mains Exam?
For the Maharashtra Judicial Service Mains Exam, a candidate is expected to have a thorough knowledge of the following subjects:
Syllabus for Paper-1
Aspiring candidates for the Maharashtra Judicial Service must focus on the following subjects to clear Paper-1:
The Civil Procedure Code, 1908;
The Transfer of Property Act, 1882;
The Specific Relief Act, 1963;
The Indian Contract Act, 1872;
The Sale of Goods Act, 1930; and
The Indian Partnership Act, 1932.
Syllabus for Paper-2
Aspiring candidates for the Maharashtra Judicial Service must focus on the following subjects to clear Paper-2:
The Indian Penal Code, 1860;
The Indian Evidence Act, 1872;
The Code of Criminal Procedure, 1973;
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 and
Protection of Civil Rights Act, 1955.
An essay on any recent developments in the field of law or any legislation, which has to be approx. 800 words.
When will the Maharashtra Judicial Service Mains Exam 2023 be conducted?
The Maharashtra Judicial Service Mains Exam 2023 date is yet to be declared.
When will the Maharashtra Judicial Service Mains Exam 2023 results be declared?
The Maharashtra Judicial Service Prelims Exam 2023 results date is yet to be declared.
Is it important for a candidate to have knowledge of Marathi language to clear the Mains Exam?
No, a candidate does not have to have knowledge of Marathi language to clear the Mains Exams; however, to fulfil all the norms of the eligibility criteria, it is mandatory for the candidate to submit a certificate stating he/she has adequate knowledge of Marathi language. Further, the candidate should be able to speak, read, and write Marathi fluently, thus, he/she has to be proficient in Marathi overall. Also, the Mains Exam will be conducted in both languages, i.e., Marathi and English, and the candidate has to choose one language to write the paper in.
How should a candidate prepare for the Mains answer writing?
A candidate can prepare for his/her Mains Exam by revising topics thoroughly and practising last year’s questions for the specific subjects in order to be well prepared. A point must be noted that the same strategy would not work for all the candidates. Hence, it is advisable that one follow his/her own strategy after experimentation and stick to the same strategy throughout the preparation.
Do all the states have a Mains Exam compulsorily?
Yes, all the states conduct the Mains Exams compulsorily.
Are there any tips and tricks for a candidate to successfully ace the Mains Exam?
Yes, a candidate may follow the following tips and tricks to ace the Maharashtra Judicial Service Mains Exam, the top 15 tips and tricks are as follows:
A candidate must have a sound and clear knowledge of all the Mains subjects.
A candidate, while attempting the Mains Exam must ensure that there is clarity in his/her thoughts while writing answers.
It is advised that a candidate does not try to mug up everything, as it never helps. Instead, focus on understanding the subject better.
A candidate can only understand and interpret the law if he/she has conceptual clarity in the thought process. The examiner will deduce the same only if the answers are succinct and to the point.
A candidate can only be able to understand the subjects and gain conceptual clarity if he/she starts preparing for the Mains Exam with a detail-oriented approach right from Day-1.
RACE AGAINST TIME: A candidate must make sure he/she has good handwriting and a good pace!
Try to learn, revise, and apply the law.
Make notes in the form of flow charts, statistics, etc.
Keep your notes handy at all times.
Focus on the language and tone while writing your paper.
One must ensure they avoid making errors and scribbling on the paper.
Choose a pen wisely. Preferably, choose a black ballpoint pen.
Avoid unnecessary aggravation while writing the answers for the Mains Exam.
It is crucial that a candidate refer to case laws while writing the answers to the Mains Exam.
Moreover, a candidate can add legal maxims to enhance the answer. This way, the examiner will be able to deduce that you have done your study well, and this will undoubtedly give you an extra edge over others!
Frequently Asked Questions (FAQs) on Maharashtra Judicial Service (JMFC) exam : interview round
How can a candidate prepare for the interview round for the Maharashtra Judicial Service Exam?
In order to prepare for the interview round, it is crucial that a candidate focus on current legal affairs and develop skills that would enhance his/her ability to communicate effectively.
What are the important things one must keep in mind for the interview round?
Being honest is one of the most important things in an interview. Questions whose answers are not known, should be answered with “I don’t know.” The most crucial need is that you work diligently and honestly. People seated on the other side are a lot more knowledgeable than you are, therefore, you must never attempt to mislead them.
Frequently Asked Questions (FAQs) on Maharashtra Judicial Service (JMFC) exam : General
Is there an ideal time for a judicial aspirant to start with judicial preparation to successfully ace the exam on the first attempt?
Ideally, as per industry experts, the following timeline is the most suitable-
Five-year course
Generally, for a five-year course student, the ideal time to start the judicial preparation is in the 4th or 5th year.
Three-year course
Generally, for a three-year course student, the ideal time to start judicial preparation is in the 2nd year.
However, there cannot be a straight-jacket answer to this as it depends on the candidate’s level of understanding, ability to interpret laws, and knowledge in the field of law.
Word of advice : In any year of law school, ensure that you, as a candidate, focus on academia as well as current affairs and current legal affairs.
How important are subjects taught as part of the B.A. or B.B.A. course in law or in judicial services?
Law as a subject cannot be studied in isolation, and therefore subjects taught in courses like B.A. or B.B.A. are not irrelevant at all. If we look closely, every subject we study has some connection to the law or the history of the law, so one should take every subject seriously. Let’s take, for example, the subject of sociology, where research helps us comprehend how society works. As a result, it aids in determining if a particular law is beneficial or detrimental to society and what its effects are. It will enable you to make greater contributions to the legal changes in society. Knowing these topics is also essential if you want to write a good essay for the Mains Exam, where you must present your point of view.
Does pursuing L.L.M. play any additional role in judicial service examination?
Pursuing an L.L.M. has no additional benefits in the judicial service examination. An individual pursues an L.L.M. degree primarily because students want to complete their education degrees in one go to avoid a break in their professional lives.
What is the marking scheme for the Maharashtra Judicial Service Examination?
For the Maharashtra Judicial Service Examination, the bifurcation is as follows:
Prelims – 100 marks,
Mains – 200 marks, and
Interview – 50 marks.
What are the top tips and tricks for a candidate to improve his/her grasp of the Marathi language?
The top five tips and tricks for a candidate to improve his hold over Marathi language are as follows:
Focus mainly on building a good vocabulary.
To further improve your language, you may watch TV shows and movies in Marathi language, read Marathi books, listen to podcasts in Marathi, and also subscribe to YouTube channels that teach Marathi right from scratch.
You can also have a conversation with friends whose mother tongue is Marathi.
Visit lower courts and try to understand how a case is being dealt with by the judge in Marathi. This will also help you enhance your legal knowledge too.
Work on your production and articulation/expressions.
Are there any important subjects one must focus on to clear the Maharashtra Judicial Service Examination or do all carry the same weightage?
According to industry experts, all the subjects deserve an equal amount of attention. Further, as a judiciary aspirant, you might think you should focus on core law subjects, however, strengthening the following areas-
The local laws of that state;
The language(s) used in that state;
General knowledge and current affairs, both local and national;
The newly added subjects, if any,
hold equal importance and will help a candidate create a cutting edge.
What are the local laws one must focus on to ace the Maharashtra Judicial Service Examination?
The following laws, inter alia, must be referred to in order to ace the JMFC/ CJJD Exam-
The Maharashtra Rent Control Act, 1999;
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989; and
The Protection of Civil Rights Act, 1955.
How important are reference books for the purpose of preparing for the judiciary?
Along with the law books referred to in law school, commentaries are crucial for improving one’s grasp of the law and the many related issues, not only for freshly graduated law students but also for judges and practising attorneys. Additionally, you gain knowledge of the legislative past, which aids in your understanding of the rationale for the law’s enactment. Overall, reading commentary can help you get a thorough understanding of and perspective on the law. However, a word of caution remains that you must limit the range of commentaries you read. Read some, but focus on the good ones only.
What are the things a candidate must keep in mind while buying a course to ace the Maharashtra Judicial Service Examination?
Before buying a course that aids in clearing the judiciary exam, it is advisable that a candidate ensure that the coaching classes, or the online class for that matter, have the requisite coaching materials and resources in accordance with the local laws of Maharashtra along with the major subjects. Moreover, if the candidate decides to apply for other states, as well, he/she should ensure the coaching classes fulfil such demands. This is why LawSikho has come up withLord of the Courses (judiciary test prep), for an aspiring candidate like you! The course offers all the insights on the important state-wise topics as well as the major topics! The course also provides strategies and top tips and tricks to crack the exam, along with past year’s question papers and solutions, in a comprehensive manner. It also has one-on-one mentor guidance if need be. In short, this course is a one-shot solution for all the state-wise judicial exams!
Are there any paid alternatives available where only test series can be bought and no study material for self-assessing one’s progress?
Yes, of course. In instances where an aspiring judicial candidate does not want to opt for full-fledged coaching to prepare for the judicial examination, there is always the option of enrolling in Test Series to help them assess where they stand on the level of preparation and how and on which areas they must concentrate more!
What are the local laws one must focus on to clear the Maharashtra Judicial Service Examination?
The following laws, inter alia, must be referred to in order to ace the JMFC Exam-
The Maharashtra Rent Control Act, 1999;
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; and
The Protection of Civil Rights Act, 1955.
Can a practising lawyer apply for the Maharashtra Judicial Service Examination?
Yes, a practising lawyer has the liberty to apply for the Maharashtra Judicial Service Examination as long as he/she meets the eligibility criteria and the age limit (both discussed in detail above).
If a candidate wants to apply for the position of judge, should he/she still do internships? What kind of internship should be done?
Yes, a candidate can do several internships even when he/she has decided to be a judge or judicial officer in the near future. He/she can start with a district court internship, then work in the high courts and, if possible, also in the Supreme Court under the guidance of any lawyer. Further, a candidate can also apply for a clerkship while preparing for the exams. Internships will help candidates gain a better understanding of the courts and the processes and procedures they follow to resolve disputes on a daily basis, among other things.
Frequently Asked Questions (FAQs) on Maharashtra Judicial Service (JMFC) exam : career, scope and pay scale
What are the career prospects when it comes to Maharashtra Judicial Service? Is there any scope for growth in this field?
Entering the field of judiciary provides incredible career prospects. There are several opportunities for growth, both personal and professional. These opportunities also include being promoted to higher judicial roles and having the ability to make a substantial impact in the field of law and justice.
How much salary and allowances are paid to lower court judges?
A judicial officer once selected for the Maharashtra Civil Judge Exam or Judicial Magistrate First Class (JMFC) will have payscale between Rs. 27,700/- and Rs. 44,700/- along with other allowances payable as per the set rules and regulations.
Please note : The pay scale is subject to change as per the policies (that are subject to change) set by the Government.
Frequently Asked Questions (FAQs) on Maharashtra Judicial Service (JMFC) exam : eligibility criteria
Is there an upper or lower age limit for the Maharashtra Judicial Service Examination?
To understand the question better, it is advisable that you read the following points:
For Fresh Law Graduates
The minimum age limit for attempting the Maharashtra Judicial Service Examination for fresh law graduates is 21 years.
The maximum age limit for candidates belonging to the general category is 25 years.
The maximum age limit for candidates belonging to the reserved category is 30 years.
For Practising Advocates/ Pleaders and Assistant Public Prosecutors belonging to the SCs, SC(A)s, STs, MBCs/DCs, BCs, BCMs, and Destitute Widows of all categories
The minimum age limit for attempting the Maharashtra Judicial Service Examination for candidates belonging to the aforementioned category is 21 years.
The maximum age limit for candidates belonging to the general category is 35 years.
The maximum age limit for candidates belonging to the reserved category is 40 years.
For others
The minimum age limit for attempting the Maharashtra Judicial Service Examination for candidates belonging to the others category (apart from the one mentioned in the first two pointers) is 21 years.
The maximum age limit for candidates belonging to the general category is 45 years.
The maximum age limit for candidates belonging to the reserved category is 50 years.
Is there an upper age limit relaxation for some candidates appearing for the Maharashtra Judicial Service Examination?
Yes, there is an upper age limit relaxation for some candidates appearing for the Maharashtra Judicial Service Examination. The relaxation is for candidates belonging to the Reserved Category. The Reserved Category includes candidates belonging to the Scheduled Caste or Scheduled Tribe. It also includes candidates from the PwD (person with disability) category. Please read this pointer for more information.
Is there an upper age limit relaxation for Scheduled Caste and Scheduled Tribe candidates appearing for the Maharashtra Judicial Service Examination?
Yes, in case the candidates appearing for the Maharashtra Judicial Service Examination belong to the Scheduled Caste or Scheduled Tribe, there is an upper age limit relaxation by 5 years. Please read this pointer for more information.
Frequently Asked Questions (FAQs) on Maharashtra Judicial Service (JMFC) exam : vacancies
How frequently does the Maharashtra Judicial Service Exam release vacancies?
Well, there is no straight-jacket answer to this question; however, as per the trends, the vacancies have been witnessed to be released yearly. Further, the period depends on the requirements of the Bombay High Court and the Judicial system.
How can one apply for the Maharashtra Judicial Service Exam?
Usually, the applicants have to apply for the Maharashtra Judicial Service Exam in online mode as per the directions given in the official Notification and register accordingly.
How many vacancies for the post of Maharashtra Judicial Service Exam have been released for 2023?
As per the official Notification, a total of 114 vacancies have been released for the post of Maharashtra Judicial Service Exam in 2023.
What is the selection process for JMFC vacancies?
The selection process for the JMFC vacancies has multiple stages, namely
Preliminary Exam,
Mains Exam, and
Interview round.
Each of these stages is discussed in detail above, along with the syllabus.
Words of motivation
Michael Jordan once said, “I’ve missed more than 9,000 shots in my career. I’ve lost almost 300 games. 26 times, I’ve been trusted to take the game-winning shot and missed. I’ve failed over and over and over again in my life. And that is why I succeed“. Certainly, the path to success goes through overcoming all the failures in life and in the field of the judiciary, as well. In life, we may think success is often painted as a smooth and effortless journey, but the truth is quite the opposite. Wherever, you feel demotivated in your journey to become a judicial officer, always remember the powerful words from Jordan, and always remember that failure is an inevitable part of the route to success. A judicial candidate must remember that behind every triumph lies a trail of disappointments and setbacks; and it is during such moments that we actually grow and learn as a person.
So, instead of letting such setbacks define us, a candidate must use these failures as a stepping stone to progress, just like Michael Jordan, who did not allow his failures and shortcomings to discourage or demotivate him; instead, he used them as fuel to improve his skills. In your journey as a judicial aspirant, too, never shy away from hard work or taking that game-winning shot (in this case, attempting the exam), even if you miss (in this case, do not succeed in the first attempt). Try, try, till you succeed! You can do it!
Please remember, it’s not about how many times one falls that defines them, it’s all about how many times you got back up and kept moving forward and above! So get up and start working towards your goals! All the best!
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
This article has been written by Anjana Pasumarthi and edited by Shashwat Kaushik.
It has been published by Rachit Garg.
Table of Contents
Introduction
Takeovers can be broadly classified into two types-
Friendly takeovers, and
Hostile takeovers.
Friendly takeovers are those that are negotiated in good faith, wherein the consent of the board of directors has been obtained and both companies are in agreement with the deal. In this article, we will discuss in detail what hostile takeovers are, the strategies put forth by acquiring companies to achieve them, and the defence mechanisms employed by target companies to defend their company against the acquisition.
What are hostile takeovers
A hostile takeover, as the name suggests, is when a company attempts the takeover without the consent of the target company’s board of directors for the arrangement; this is done through a tender offer or a proxy vote.
The company being acquired in a hostile takeover is called the target company, while the one executing the takeover is called the acquirer. In a hostile takeover, the acquirer goes directly to the company’s shareholders or fights to replace the management to get the acquisition approved.
In the sphere of mergers and acquisitions, companies often attempt a hostile takeover, yet only a few emerge successful with the hostile takeover; this could be either due to the strong defences planned and implemented by the target company or due to the financial impediments of the acquiring company.
Strategies for a hostile takeover
There may be many strategies to achieve a hostile takeover, yet the tender offer and proxy vote are the most prominent, legal and commonly used approaches to a hostile takeover.
Tender offer
A tender offer is an open offer presented to all the shareholders of the target company. This offer presents the special premium price at which the acquiring company would like to purchase the shares of the target company. This premium price for shares is offered publicly to invite shareholders to sell their shares. Tender offers may require a minimum threshold of shares to be tendered for the offer to proceed. This allows the company to deploy its financial resources towards the purchase of shares only if a predetermined number of shares are agreed to be sold.
The bear hug approach and a tender offer are similar but not identical; both methods involve an offer to buy shares, but the bear hug takeover bid is a generous amount offered to the management of a company, which the shareholders would not refuse considering the vulnerabilities and other circumstances of the company. The bear hug approach leverages the possibility of making an open offer as a means to exert pressure on the management.
While the entire idea of a hostile takeover is unsolicited, since this offer is presented to the board of directors or the management without concurrence on the matter between the companies or any prior communication to them for that matter, this approach has a slightly aggressive demeanour. By making a highly attractive offer, the acquiring company aims to create a basis for further discussions and encourage the target company’s management to consider alternative paths, such as engaging in friendly merger talks or exploring other strategic options.
Proxy fight
The acquiring entity seeks to gain control of the target company’s board of directors by soliciting proxy votes from shareholders to replace the current board members with individuals more favourable to the takeover. When there is dissonance amongst the stockholders regarding the functioning of management, each opposing group tries to lure other shareholders into allowing them to exercise their proxy votes. These proxy voting rights are exercised to accept a proposal for the takeover bid.
Accumulating shares or street sweep
In this method, the acquiring entity buys many shares on the open market, gradually increasing its ownership stake in the target company.
Brand power
This involves entering into alliances with powerful companies to weaken the market position of the target company and subsequently buying out the weakened target company.
Defence mechanisms against hostile takeovers
Every company under the threat of a hostile takeover plans, frames and implements a defence mechanism and tries its best to protect and safeguard the company and keep its integrity, structure and essence intact. These defence mechanisms may vary from company to company due to their differential nature and conditions that may be unique to each company. However, these defence mechanisms can be broadly categorised into eight types-
Crown jewel
This is generally the company’s last resort to thwart a takeover. A crown jewel is a defence strategy employed by the target company in which a strategically important and valuable asset or division of the company is sold to portray the takeover as a less appealing option. This strategy follows the saying, “Cut off one’s arm to save the body.”
Employee stock ownership programme
Examining the core idea or concept of ESOP, it could be comprehended as a scheme through which the company gives its employees an interest in the company in the form of shares. As a result, the employees may own a substantial interest in the company. Now, this scheme, if implemented by the management of a company under threat, could serve as an excellent defence tactic, as the employees are now more likely to support the management that formulated and implemented the ESOP rather than voting them out and allowing for a hostile takeover.
Shareholders rights plan also known as poison pill
Poison pill strategies can be of two types-
The flip-in poison pill is a defence mechanism employed wherein the targeted company weakens the stake of the acquiring company by diluting its interest. Here, the target company offers its existing shareholders, other than the acquiring company, additional shares at a discounted price.
The flip-over poison pill is a technique in which the shareholders could purchase the shares of the acquiring company as soon as the takeover is successful; this is a discouraging prospect for the acquiring company, which makes it an effective strategy to deter any company from a hostile takeover attempt.
Poison put
In pursuance of this strategy, the target company issues bonds that encourage holders to buy them at a high price. This drastic cash drain makes the prospect of a takeover of such a company rather unattractive.
Golden parachutes
A golden parachute is an arrangement or a provision that grants the top executives and its employees financial compensation and benefits in case a hostile takeover attempt is successful and there is a change of control. This essentially works to incentivise them to resist the takeover. However,this approach is criticised, arguing that the senior executives are already paid hefty amounts and that the executives, inherently given their position in the company, have the impetus to protect the company.
Pac man defence
The pac-man defence is a plan formulated by the target company, adhering to which the company purchases back its own shares at a premium to rule out any possibility of a hostile takeover. This, however, is reckoned to be an expensive affair, as the company may or may not have such exorbitant amounts available at the moment. The defence can either be funded by external financing or drawn from the war chest of the company.
Green mail defence
This defence involves the target company making a counter-bid for the acquiring company. Here, the target company purchases the shares of the acquiring company, which forces the company to defend itself. This facilitates the stave-off of the takeover.
The white knight
When a company under threat of hostile acquisition approaches and enters into an arrangement of a kind with a company to outbid the acquiring predator company, then the target is said to have employed a defence strategy called the White Knight. The company that steps in and rescues the target company is referred to as the white knight. Here, the companies enter into reasonable and mutually beneficial terms. This arrangement with another company allows the target company to potentially secure its extended control over the company even after the acquisition by the white knight. One of the drawbacks that are apparent with this strategy is finding a suitable white knight. This process is rather challenging and time-consuming and there is no guarantee of a successful alternative deal. This puts the target company in a vulnerable position during the negotiation period.
Staggered board
A staggered board, also known as a classified board, is a corporate governance structure in which the members of a company’s board of directors are divided into different classes, and each class serves a different term length. This is a powerful anti-takeover approach.
It defines an Acquirer as “any person who, directly or indirectly, acquires or agrees to acquire whether by himself, or through, or with persons acting in concert with him, shares or voting rights in, or control over a Target Company.” Further, Regulation 3 permits such Acquirers to make a public announcement of an open offer for acquiring shares, which will entitle the Acquirers to acquire more than 25 percent of the voting rights of the target company.
Example of a successful takeover
Adani takeover
The Adani takeover of NDTV could be delineated as a successful hostile takeover. It is pertinent to understand the underlying facts, events that occurred and arrangements agreed to. These could be traced way back to 2009 and have acted indirectly as stepping stones to achieve the aforementioned takeover.
In 2009, the promoters of NDTV, through their company RRPR, borrowed a sum of Rs. 350 crore from VCPL. Among other terms,the relevant terms and conditions of the loan are:
RRPR will issue a convertible warrant to VCPL, convertible into equity shares aggregating to 99.99% of the fully diluted equity share capital of RRPR at the time of conversion and convertible at any time during the tenure of the loan or thereafter.
VCPL shall have the right to purchase from the promoters all the equity shares of RRPR at par value.
VCPL and its affiliates cannot purchase shares of NDTV, which will increase their holding to more than 26%, without the consent of the promoters.
One of the conditions precedent to the execution of the agreement was sale of 11,563,683 shares of NDTV from the promoters to RRPR, such that RRPR holds 26% of NDTV.
In August 2022, a wholly owned subsidiary of Adani Enterprises, AMG Media Networks Ltd., acquired VPCL. Subsequently, the right to acquire a 99.5% stake in RRPL, the promoter entity of NDTV, that was then a term of the loan, was now exercised by Adani. Since the stake in NDTV held by RRPL is greater than 26%, AMG Media Networks was obligated under Regulation 3 of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 (“Takeover Code”) to issue an open offer for an additional 25% stake in NDTV, and they have offered a discounted price of Rs. 294 per share.
That open offer extended by the Adani group led to a hefty transaction of about 53 lakh shares, even at the discounted price offered for them. The ownership interest of Adani Group equates to about 64.71%, which is constituted by stakes acquired through RRPR holdings, open offer acquisitions, and buying 27.26% from Roys, the company’s promoters. This acquisition was sealed and done on December 30, 2022, in the block deal window of the NSE.
Example of an unsuccessful takeover
In the year 2000, the Dalmia Group, which had a 10.5% stake in GESCO Group, made an open offer to purchase 45% of the shares in the company. However, the companies entered into an amicable agreement, which ended with Dalmia selling its stake to Sheth-Mahindra. The failure of this takeover could be credited to the aforementioned defence strategy adopted by GESCO, namely “White Knight.”
Conclusion
Understanding hostile takeovers is important in today’s business realm. A hostile takeover is a representation of class between the interests of the target company and the acquiring company and its shareholders. It is important to understand that hostile takeovers are not always good or bad; sometimes they may serve as a means for promoting competition, increasing corporate governance, and increasing shareholder value. Sometimes they may lead to people losing their jobs due to a poor corporate environment and poor company strategies. Understanding its implications is important for shareholders and investors to make the right decision. Companies must remain watchful and implement proper defence strategies to prevent hostile takeovers.
Book- Takeover Games and SEBI Takeover Regulations -Taxmann
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article is written by Khushi Sharma, currently pursuing B.A.LLB (Hons) from IIMT and School of Law, IP University; and by Monesh Mehndiratta, of Graphic Era Hill University, Dehradun. This is an exhaustive article which deals with all provisions of the Specific Relief Act, 1963.
Table of Contents
Introduction
As the main objectives of the Act have been vested in the very title of this statute i.e. Specific Relief, due to which we can have a basic understanding that the Specific Relief Act is a legal statute dealing with reliefs or recovery of the damages of the injured person. This Act was enacted in 1963 following the approach that when a person has withdrawn himself from the performance of a particular promise or a contract with respect to another person, the other person so aggrieved is entitled to a relief under Specific Relief Act, 1963. This Act is considered to be in one of the branches of the Indian Contracts Act, 1872.
Whenever you suffer any kind of loss due to the fault of someone else, you always look for a specific remedy, right?
Similarly, when a party suffers loss and damages due to the acts of another party as a result of which the contract is breached, it has to be remedied by specific acts. These specific acts or reliefs are given under the Specific Relief Act, 1963 which deals with certain remedies in these situations.
Whenever two people enter into a contract, it binds both of them by obligations and duties. Both parties are required to perform their parts of the contract diligently and enjoy the rights. But where the contract is breached or not performed by any party, the other party is entitled to seek relief for the damages incurred due to the non-performance of the contract by another party. The term ‘specific performance’ used under the Act, itself suggests its own meaning. It means to specifically perform an act in terms of a contract and directs the parties to specifically perform their obligations as mentioned therein and thus fulfil the terms and conditions of a contract. Thus, where one of the parties to a contract suffers loss due to non-performance of the other, the aggrieved party may file a suit for specific performance. Performance of a contract is one of its major and crucial parts. The remedy of specific performance provides for performance of a contract by a party who fails to, neglects or intentionally refuses to perform the contract. The doctrine of part performance is also related to performance of contracts.
Section 2(a) deals with obligations which are duties imposed on a person by the law or the legal body.
Section 2(b) deals with the settlement that means delivery of the movable or immovable property to their successive interests when it is agreed to be disposed of.
Section 2(d) deals with the word “trustee” which means the person holding trust in the property.
All other definitions which have not been explained herein are the same as referred to the definitions of the Indian Contracts Act, 1872.
Specific relief
Section 4 of this act explains that this Act grants special relief for the enforcement of individual rights and not for imposing penal laws. The enforcement under this Act only bases itself on the individual civil right and the substantive nature must be established for that fact. To be understood in a simpler way specific relief is related to providing relief for the infringed civil rights of the individual. Its main objective is to focus on the rights and if there is any penal nature of the case, it may have to be established for proving the same.
Recovering the possession
The recovery of possession of this Act is provided under two heads: recovery of the immovable property and recovery of the movable property. The law of Specific Relief Act,1963 works on a basic principle that “Possession is itself a prima facie evidence of the ownership”.
Recovery of the possession of immovable property
Section 5 explains the remedies available to a person when he is disposed from his property. If a person has been removed through the line of possession or wants to recover what lawfully is his property, then that person can do so through the recovery procedure provided by the Code of Civil Procedure, 1908 and in which the person will prove that the title belongs to him.
Section 6 of this Act details that if a person has been dispossessed or divested from the property against the nature of law, then that person can file a suit for recovery of possession. This section is not only a mere legal rule but also has a wide practical approach. There are certain essential requirements for fulfilment of recovery under this section that are as follows:
The person suing for dispossession must be in possession of that property.
The person must be dispossessed from the property and such divest from the property must be unlawfully done or must be carried out against the nature of law.
The dispossession must be without the consent of the person suing.
Section 6 sub-clause (2) explains that no suit can be bought by a person after the expiry of 6 months from the date of dispossession.
Section 6 sub-clause (2) also explains that no suit by a person can be brought against the government.
If the person has not filed any suit in the prescribed time period (section 6) then the only relief open to him is that of section 5 i.e to prove his title of the property in a better way. Section 6 has certain limitations which explains that if any order or decree has been directed by the court in regards to section 6 then, no appeal or review shall lie against such order or decree but such order is open to revision.
Recovery of the possession of movable property
Section 7 explains that when a person wants to recover the possession of the movable property, they can follow the procedure expressed by the Code of Civil Procedure,1908. section 7 has further two sub-clauses which further details that a trustee may file suit against the beneficial interest he was entitled to and the other sub-clause explains that the ownership of the property can also be expressed with the presence of a special right given to the person suing; which would be enough as an essential to file a suit.
Essentials of section 7 are as follows:
There must be a presence of movable property which is capable of being delivered or disposed of.
The person suing must have the possession of the property in question.
There may be an existence of a special or temporary right on the property.
Section 8 of the Specific Relief Act,1963 explains that when a person is in the possession of the article to which is he is not the owner, shall be compelled to deliver such article to the person who will have its immediate possession in following cases:
When the article is held by the defendant as the trustee of a person who has the immediate possession.
When compensation in money is not an adequate relief.
When it is difficult to ascertain actual damage caused to the person.
When the possession of the article has been wrongfully transferred from the person so entitled.
Click Above
Specific Performance of contracts
Section 10 includes in what condition-specific performance of the contract may be enforceable, specific performance usually depends upon the discretion of the court but there are certain conditions for performance which are mentioned as follows:
When the damages or loss occurred due to the non-performance of the contract cannot be ascertained.
When money as compensation is not an adequate relief due to the non-performance of the contact.
Until the contrary is proved it is presumed by the court that (i) that the breach of contract of immovable property cannot be adequately fulfilled by money (ii) the breach of contract of movable property can be relieved except in the cases of a) where the property is not an ordinary article of commerce, b) where the property is kept by the defendant as a trustee for the property.
Contracts that cannot be specifically enforced
Section 14 mentions certain contracts which cannot be specifically enforced which are as follows:
When there is a non-performance for the act, and money is adequate compensation.
.A contract that is full of many details and its nature is personal to the parties, these can not be specifically enforced.
The contract requires continuous work for which the court cannot supervise.
The court whose nature is determinable.
Persons against whom the contracts can be specifically enforced
Section 15 deals with the person against whom the contracts can be specifically enforced:
Any party to contract or any party to suit.
Representative in interest or principal, which holds certain important ingredients-
Any special skill, or any qualification.
The principal in interest shall be not be entitled to specific performance.
Where the contract is for settling a marriage or to compromise the situation between the family members.
When a contract has been entered into by a tenant over a property for life.
Enforcement of awards
Section 21 deals with the power to award compensation; in various cases, compensation can be done through the court to the aggrieved person. There are certain cases which are as follows:
When there is a suit filed for specific performance of the contract due to its breach the aggrieved person may also demand compensation in addition.
When according to the court the specific performance may not be granted but there has been a breach of contract, the court accordingly will order for compensation to be given to the aggrieved party.
When the court thinks that in this case specific performance of the court shall be granted but it will not be an adequate relief so, compensation in money can be ordered.
No compensation shall be awarded when the relief for money is not itself mentioned in the plaint.
Rectification of instruments
Section 26 deals with the ways in which instrument can be rectified:
When through fraud or mutual mistake the parties do not show their real intention then:
Either party or representative in interest may file a suit for rectification of the instrument,
The plaintiff in his plaint may plead for rectification of instrument,
The defendant in his defence may claim for rectification of instrument.
The court can direct rectification of instruments in cases where the party through fraud does not show their real intention to prevent violation of rights to the third party.
Requirement for rectification
The party who wants to rectify the instrument firstly must give them in writing and then mention them in their pleading. No relief shall be granted when the rectification is not specifically mentioned.
Recession of Contracts
Section 27 deals with the recession of the contract, in law, recession means withdrawing of the contract or in simpler terms: cancellation of the contract. It brings the party in a situation as if the contract did not happen i.e status quo ante meaning in its original state.
Recession when cancelled
A contract can go through the recession by the pleading of any party except there are some cases in which recession may be cancelled. Recession can be cancelled in certain ways: a) where the contract has been terminated or “has been deemed” voidable by the plaintiff, b) when the contract is unlawful.
Cancelling the contracts through recession
A contract may be cancelled through the recession in cases:
a) where the plaintiff has himself given consent to the contract,
b) where the third party has gained interest in the contract and where their rights come into question,
c) where only a portion of the contract is to be cancelled but it is in such a position that the faulty portion cannot get separated from the contract.
Cancellation of the contracts
Cancellation is one of the remedies which is available to parties against injuries in a contract; section 31 to 33 deals with cancellation of instruments through the court.
Section 31 explains that when an instrument is void or voidable against a person then he can get that instrument if it may cause damage to it.
Section 32 deals when a contract can be partially cancelled; for example in cases where there are certain rights and obligations connected with some parties through that contract, then the court accordingly may cancel the faulty portion and let the other in motion.
Section 33 has two heads in it i.e powers to aggrieved party after cancellation and orders to the defendant after cancellation.
Power of aggrieved party
When the contract has been successfully cancelled, the aggrieved party may receive all the restoration of benefit and compensation to ensure justice.
Orders to the defendant after cancellation
When the suit has been proven voidable against the defendant, he is required to restore every benefit to the plaintiff which the defendant may have received during the contract.
Declaratory decrees
Section 34 and 35 deal with declaratory decrees which are declared through the courts to the parties to suit or contract.
Section 34 deals with that when any person has a certain right or obligation over the property and he has been denied that right by any party, then the aggrieved party may file a suit for the enforcement of the right over the property which has been denied to him. The Court will give a declaration after looking over the case that the aggrieved party has a right over the title of such property and so a declaratory decree will be passed. Such declaratory decree will not be passed by the court when the plaintiff demands something more than the title over that property.
Section 35 deals with the effect of the declaration which explains that this decree will be binding to only to those which are the parties to suit, the decree will be binding to only the parties to suit and the trustees at the time of suit if any.
Preventive relief
Preventive relief is considered to be any relief which abstains a party from doing any act; a relief from the court which details that the party should not perform certain acts for which the relief shall be prescribed. Such reliefs can be imposed in the form of injunctions.
Injunctions
Injunctions are a specific order under which a party must abstain from performing any act. Injunctions under the Specific Relief Act,1963 may be divided into different types namely temporary, perpetual and mandatory. Injunction is mentioned from section 36 to 44.
Perpetual injunctions
Perpetual injunctions are known as permanent injunctions. They can only be imposed after hearing the parties on the merits of the case in which the defendant has enjoyed an assertion of the right and by affecting the plaintiff on the contrary. The perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation and imposing rights in his favour. When the defendants invade the plaintiff’s right to enjoyment, a perpetual injunction may be applied in certain cases where:
The defendant is the trustee of the property.
Actual damage cannot be ascertained.
Money as compensation would not be adequate relief.
Injunctions are necessary to prevent multiplicity of judgments.
It was held by the Hon’ble Supreme Court that when the plaintiff files suit regarding the dispossession, it is enough if he proves that he is entitled over the title of that property. Once the title is proved other details like being divested from the property or other things are not required to be proved.
It is held by the Court that when in a case it is observed that the plaintiff itself did not perform his portion in the contract or neither does he want to perform, so the decision regarding specific performance act will be issued under this favour.
The Court, in this case, held that when a contract is valid no doubt of it being cancelled arises and when it is void ab initio (meaning no existence in the law from the starting ) then no also no option of cancelling it arises as it is not present in the eyes of law. When a contract has no existence no action is enforced on it.
Conclusion
The Specific Relief Act, 1963 has a set of reliefs given to the parties to suit. They have different reliefs and enforcing rules which focus on providing enough compensation to all. This legal statute’s main aim is that no person shall live with the damages and losses and those who have caused such a situation must be in a position to restore all unlawful benefits received by them. This act focuses on providing justice to all and not inequitable favouring a single party.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
Allow notifications
