SC: Limitation Not a Preliminary Issue under Section 9A (Per Incuriam?)

Section 9A which was inserted by a State Amendment to the Code of Civil Procedure, 1908 provides that when at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue to be decided by the court as a preliminary issue and the court must first proceed to determine the issue of jurisdiction as a preliminary issue before granting for setting aside the order granting the interim relief.

Till date, the Judges of the Civil Courts in Maharashtra would entertain even issues of limitation in section 9A applications. However, the Hon’ble Supreme Court has recently held in Kamalakar Eknath Salunkhe vs. Baburav Vishnu Javalkar & Ors. (Civil Appeal No. 1085 of 2015) that the word ‘jurisdiction’ used in section 9A did not include issues of limitation. However, the judgement has received some criticism, even from the Judges of the Supreme Court itself.

CSR under Companies Act 2013: From Choice, to Necessity, to Compulsion

“CSR is the activity which has to come from heart, executives strive day [and] night for the growth of the company by the help of customers, CSR is a perfect opportunity to pay back to society.”

-       Deepak Kapoor[1]

I.                   Introduction

Image taken from here.

The industrial families of the 19th century such as Tata, Birla, Bajaj and Godrej, were strongly devoted to philanthropically motivated, social and economic causes.[2]  Even Mahatma Gandhi’s Khadi movement, which was an integral part of the Swadeshi movement and which encouraged Indians to be self-reliant, received huge support from the Bajaj family.[3] During the Independence phase, Mahatma Gandhi introduced the notion of ‘trusteeship’ which encouraged businesses to establish trusts for educational institute and also helped in setting up training and scientific institutions.

However, according to a survey carried out by Forbes India, only six out of the top 100 companies of India contributed more than 2% of their profits after tax (PAT) to Corporate Social Responsibilities (CSR) activities.[4] It is for this reason that a provision for mandatory CSR spend has been included in the Companies Act 2013. According to industry estimates the mandatory CSR laws would apply to about 9,000-10,000 companies.[5] The new provision has received criticism not only from corporations but even from the supporters of CSR theory who believe that CSR activities, though a necessity, must be taken up voluntarily. This article analyses the impact of the Companies Act 2013 on the Corporate sector with respect to the new CSR provisions.

Intellectual Property Laws v. Anti Trust Laws

("This paper was awarded first prize in the Sir Dinshah Mulla Legal Essay Writing Competition 2011 and thereafter published in the annual college magazine of Government Law College, Mumbai".)

“The aim and objectives of patent and antitrust law may seem, at first glance, wholly at odds. However, the two bodies of law are actually complementary, as both are aimed at encouraging innovation, industry and competition.”[1]

Introduction

 In today's economy, companies must innovate if they wish to succeed and endure. The emerging scenario in India appears to be one of domination of industries such as information technology, communication and other knowledge based industries. Companies generate capital and employment by producing new ideas and incorporate them into products to give rise advanced products which the consumers have not only not seen but not even imagined. Consumers, in turn, benefit enormously from these innovations. Hence, it is of the utmost importance that our economic laws, including Anti Trust and Intellectual Property Laws, create a legal environment that fosters and does not suppress innovation.

Fraud Claims in Arbitration

(Also read Decisions under Section 11 of Arbitration & Conciliation Act, Not Binding Precedent and Contempt of Order of Arbitration Tribunal)

“Arbitration improves access to justice. It enhances the likelihood of recovery. It delivers speedier results. It keeps costs down. For many, it is a superior option to the expensive, slow, cumbersome ways that have come to typify our civil justice system.”[1]

-           Peter B. Rutledge

PART – I: INTRODUCTION 

Indian Courts have in several decisions held that matters, in which grave allegations of fraud, conspiracy or misappropriation are made, are too serious to be tried by arbitrators. Therefore, in India, and several other countries, such matters cannot be the subject-matter of arbitration. This view has also been upheld by the Supreme Court of India in N. Radhakrishnan vs Maestro Engineers^[2] (“N Radhkrishnan”). The Courts have given various reasons for holding that arbitrators are incompetent to hear such matters. Reputation of the party, ineffectiveness of arbitration where substantial amount of documentary evidence needs to be produced and lack of legal knowledge of the arbitrator, are some of the most cited reasons for limiting the scope of arbitration by such a huge extent. It is also necessary to consider the impact of such a limitation on Indian arbitration law, from an international commercial arbitration perspective.

Specific Performance of Agreement for Sale - Leave under clause XII of Letters Patent

The Hon’ble Bombay High Court has held in Annete Bulchandani vs Mrs. Iris Fernandes & Ors that a suit for specific performance of an agreement for sale of land situated outside the jurisdiction of the Hon’ble Bombay High Court will be maintainable in the Court, after seeking leave under Clause 12 of the Letters Patent, even if the proposed Plaintiff has alternatively  prayed for setting aside sale of the land to a subsequent transferee. Judgment  can be found here. 

When does the right to sue accrue? - Limitation Act, 1963

(Image taken from here.)

As per Article 58 of, under Part II of the Schedule of the Limitation Act, 1963, ("the Act") the period of limitation to obtain any declaration (other than those classes of declarations mentioned in Articles 56 and 57 of the Act) is three years from the date the 'right to sue first accrues'. 

Article 113, on the other hand, which is the residuary article states that the period of limitation for any suit for which no period of limitation is provided elsewhere the Schedule, is three years from the date the 'right to sue accrues'.

It is often difficult to ascertain when the right to sue accrues, especially in declaratory suits in which there may not even be a clear cause of action. Courts have analyzed these phrases and laid down guidelines to determine when the 'right to sue accrues' or when the 'right to sue first accrues'. 

Shia Laws of Inheritance - Clases and Sharers

In respect of Shia Laws of Inheritance only the first marriage is considered to be valid.

Shia law divides legal heirs into two groups:-

(1) Heirs by consanguity and (2) Heirs by marriage.

The second group includes husband or wife. The first group can be further sub divided into three basic classes:-

Contempt of Order of Arbitration Tribunal

In the event that a party to an arbitration seeks to file a contempt to the arbitral tribunal committed by another party then Section 27(5) of the Arbitration and Conciliation Act, 1996 (“the Act”) allows such party to make an application before the Court with the approval of the arbitral tribunal.

Decisions under Section 11 of Arbitration & Conciliation Act, Not Binding Precedent

A Division Bench of the Hon'ble Supreme Court has held that decisions passed in section 11 Applications, under the Arbitration and Conciliation Act, 1996, (“the Act”) are not binding precedents. This judgment was delivered in the case of State of West Bengal & Ors. v. Associated Contractors (incorrectly cited as S.Balachandran v.s M/S Ramaniyam Real Estates Ltd.in some places). The entire text of the judgement can be found here.

Blogging & Law - How to Manage & Protect your Blog/Website

Pavan Duggal,
Indian Cyber Law Expert

Is posting someone else’s copyrighted images on your blog ‘fair use’? Which court has jurisdiction in respect of Indian Blogs, where servers are located outside India?

These questions are answered by Indian Cyber Law Expert, Mr. Pavan Duggal, as he advises bloggers as to how to manage and protect their blogs.

Mr. Duggal stresses on the necessity of having well drafted Privacy Policy, Terms and Conditions and Disclaimers, in order to avoid liability for any defamatory or plagiarized content posted on a blogger’s blog by a third party user (visitor) on the blog, under the Information Technology Act, or any other law. Especially Section 66A of the Information Technology Act, under which a blogger can be held criminally liable for comments of the blog visitor.