any loan or credit in which property is pledged as security in the event payment is not made
Saturday, June 28, 2008
Friday, June 27, 2008
Mr.Ramamurty invited Alisa to his house for dinner which she accepted. When Alisa went to Mr.Ramamurty’s house at the appointed time leaving all her work involving Rs.10 lakhs, she found Mr.Ramamurty’s house locked and none was there. Alisa claimed compensation from Mr.Ramamurty who on the other hand contended that there was no contract. Advise.
F promised to pay his son S a sum of Rs. 1 lakh if S passed C.A. exams in the first attempt. S passed the exam in the first attempt, but F failed to pay the amount as promised. S files a suit for recovery of the amount. State whether S can recover the amount under the Indian Contract Act, 1872.
Tuesday, June 24, 2008
Monday, June 23, 2008
X Constructions P Ltd has purchased Transferable Development rights (TDR) from Y builders Pvt. Ltd. Paid up capital of both companies is 3 crores and Mr. D is common Director in both the companies, Whether TDR are “goods / services” for the purposes of section 297?
Sunday, June 22, 2008
Since consequences of not complying with 297 are already mentioned in sub-section 5 i.e. such contract becoming voidable, whether provisions of section 629A are applicable? Can it be argued that since consequences of not complying of 297 are prescribed in sub section 5, it can not be a case of “not prescribing punishment’ which is essential to attract section 629A. In other words Whether “contract becoming voidable“ is a punishment?
Friday, June 20, 2008
The first two are the most obvious:
A request for information is not a counter-offer. If you ask the offeror for information or clarification about the offer, that doesn’t extinguish the offer; you’re still free to accept it if you want.
Adverts basically work in the same way as the scenario above. Advertising something is like putting it in a shop window.
The original advertising of the auction is just an invitation to treat.
When I make a bid, I am making an offer.
When the hammer falls, the winning ‘offer’ has been accepted. The seller now has a legally binding contract with the winning bidder (so long as there is no reserve price that hasn’t been reached)
This is best illustrated by an example: suppose I promise to give you my watch, but you don’t give me anything in return. If I break my promise and keep my watch, you can’t then go to court and make me give it to you. The contract isn’t legally binding: you didn’t give me any consideration for my promise.
So put simply, consideration is the price paid for the other’s promise.
Consideration must move from the promisor;
Consideration need not move to the promisee;
Past consideration is not good consideration;
The consideration given must be sufficient, but it need not be adequate.
The detail isn’t necessary here, but there is a separate note on them if you’re interested.
Tuesday, June 17, 2008
Mr.A had resided in India during the financial year 1999-2000 (1st April, 1999 to 31st March, 2000) for less than 183 days. He has come to India on April 1, 2000 for employment. What would be his residential status during the financial year 2000-01 (1-4-2000 to 31-3-2001) ?
Mr. X had resided in India during the financial year 1999-2000 for less than 183 days. He had come to India on April 1,2000 for business. He intends to leave the business on April 30, 2001 and leave India on June 30,2001. What would be his residential status during the financial year 2000-01 and during the financial year 2001-02 up to the date of his departure ?
Mr. Z had resided in India during the financial year 1999-2000 for more than 182 days. He left India on August 1, 2000 for United States for pursuing higher studies for 3 years. What would be his residential status during financial year 2000-01 and during 2001-02 ?
State whether the following statements are ‘True ‘ or ‘False’.
1. FEMA is a civil law.
2. A person resident in India can carry Indian currency notes of any denomination while traveling to Nepal.
3. ‘X’ who went to Switzerland in December, 2003 and drew US $ 10,000 desires to go to USA in January 2004, he can again draw US $ 10,000.
4. Foreign exchange payable for import of goods is a capital account transaction.
5. ‘X’, a citizen of USA but of Indian origin, comes to India for doing business and with the intention of setting in India, he becomes person resident in India on his arrival in India.
6. ‘A’ a citizen of India, goes to London to attend to his sick father and intends to stay in England till his father recovers, he becomes a non-resident from the date he leaves India.
7. ‘Security’ under FEMA includes a bill of exchange and promissory notes.
8. A person resident in India can purchase British lottery tickets through Internet using his International credit card.
9. A foreigner who is a non-whole time director of an Indian company can be paid ‘to’ and ‘fro’ fare for attending Board meetings in India.
10. An Indian sole proprietorship concern can accept deposits from non-residents on repatriation basis.
11. Export proceeds under FEMA must be realized within one month of shipment.
12. A non-resident can purchase immovable property in India only for his own residential use.
13. A person can buy foreign exchange up to US $ 1,00,000 for studies abroad per academic year.
14. A public limited company incorporated in India can accept deposits from non-residents only on non-repatriation basis.
15. A non-resident Indian who sells his immovable property in India can repatriate outside India only an amount equivalent to foreign exchange brought in.
Examine with reference to the provisions of the Foreign Exchange Management Act, 1999, the residential status of the branches mentioned below:
i NNM Ltd. an Indian Company having its registered office at Mumbai, India established a branch at New York U.S.A. on 1st April 2005.
ii DDI Ltd. a company incorporated and registered in London established a branch at Kanpur in India on 1st April 2005.
iii DDI Ltd. has a branch office at Singapore which is controlled by its Kanpur branch.
Section 2(u) defines a 'person'. As per this definition, the following shall be covered in the definition of a ‘person’:a. A companyb. Any agency, office or branch owned by a 'person'.Section 2(v) defines a 'person resident in India'. As per this definition, the following shall be covered in the definition of a 'person resident in India':
a. Any person or body corporate registered or incorporated in India.b. An office, branch or agency in India owned or controlled by a person resident outside India.c. An office, branch or agency outside India owned or controlled by a person resident in India.
The answer to the given problem is as under;
NNM Ltd. as well as the New York branch of NNM Ltd. is a 'person'. Therefore, residential status under FEMA shall be determined for each of them separately.
NNM Ltd. is incorporated in India. Therefore, it is a 'person resident in India'.
NNM Ltd. (a 'person resident in India') has established a branch outside India. Therefore, the New York branch of NNM Ltd. falls under the clause 'an office, branch or agency outside India owned or controlled by a person resident in India' and so the New York branch is a 'person resident in India'.
DDI Ltd. as well as Kanpur branch of DDI Ltd. is a 'person'. Therefore, residential status under FEMA shall be determined for each of them separately.
DDI Ltd. (a foreign company) does not fall under any of the clauses of the definition of a 'person resident in India'. Therefore, DDI Ltd. is a person resident outside India.
The Kanpur branch of DDI Ltd. is a "person resident in India' since it falls under the clause 'an office, branch or agency in India owned or controlled by a person resident outside India'.
The Singapore branch of DDI Ltd., though not owned, is controlled by the Kanpur branch. The Singapore branch is a 'person resident in India' since it falls under the clause 'an office, branch or agency outside India owned or controlled by a person resident in India'.
Mr. Sekhar resided for a period of 150 days in India during the financial year 2003-2004 and thereafter went abroad. He came back to India on 1st April, 2004 as an employee of a business organisation. What would be his residential status during the financial year 2004-2005?
The residential status of an individual for a particular financial year is determined with reference to his residence in India in the immediately preceding financial year. In the problem given, Mr. Sekhar resided in India for less than 183 days in the financial year 2003-2004. Therefore, for the financial year 2004-05 he is a 'Person resident outside India' irrespective of the purpose or duration of his stay. Unless an individual resides in India for more than 182 days in the preceding financial year, he can in no case be termed as a person resident in India.
i investment by person resident in India in Foreign Securities.
Monday, June 16, 2008
X Pvt. ltd is partner is XY & co a partnership firm. Other Partner is Mr. Y. Mr. Y is also a Director in X Pvt. Ltd. The profit & loss sharing is 99.999% by X Pvt. Ltd and 0.001% by Y. Paid up capital of X Pvt. Ltd is 5 crores. It proposes to buy raw material of Rs. 2,00,000 per month from XY & Co on credit.
a) Whether Government approval would be required to be obtained by X. Pvt. Ltd?
b) Can company argue that XY & Co is nothing but only a different form of business organization created only for tax planning purposes?
c) Will the answer be different if Mr. Y is not a director of X Pvt. Ltd?
X a director of a Public limited company with a paid up capital of Rs 5 Crores has provided unsecured loan of Rs. 150 Lakhs to the company. X does not have a license of Money lending but is carrying on the business of money lending regularly. Whether ‘supply of money’ is ‘supply of service’ as contemplated by section 297? Whether this transaction will attract section 297? Whether answer would be different if X has a license as Money lender? Whether lending of money by an NBFC which is private Limited company in which X is a director will attract section 297?
X Pvt. Ltd is a private limited company registered in India in which P Inc. (American Company) holds 45 % shares and Q Inc ( Another American Company ) holds 45% shares. Y Pvt. Ltd is another Indian company in which both P Inc & Q Inc holds 30 % shares each. P & Q have no relations with each other. None of directors of X Pvt. Ltd & Y Pvt. Ltd are common. Whether X Pvt. Ltd and Y Pvt. Ltd has any relation with each other? Can X Pvt. Ltd. transact with Y Pvt. ltd without attracting any provisions of “Related Party Transaction” and section 297 , 299 etc?
Saturday, June 14, 2008
Friday, June 13, 2008
The boy began lessons with an old Japanese judo master. The boy was doing well, so he couldn't understand why, after three months of training the master had taught him only one move.
"Sensei,"(Teacher in Japanese) the boy finally said, "Shouldn't I be learning more moves?" "This is the only move you know, but this is the only move you'll ever need to know," the sensei replied.
"Sensei, how did I win the tournament with only one move?"
Sometimes we feel that we have certain weaknesses and we blame God, the circumstances or ourselves for it but we never know that our weaknesses can become our strengths one day.
Each of us is special and important, so never think you have any weakness, never think of pride or pain, just live your life to its fullest and extract the best out of it!"
Thursday, June 12, 2008
How much do I have to change in order to claim copyright in someone else's work?
Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create a new version of that work. Accordingly, you cannot claim copyright to another's work, no matter how much you change it, unless you have the owner's consent.
What are the rights of an author?
If the owner of the work is different from the author, the author will be eligible for the “moral rights” of the author. These rights include the right to be identified as an author and the right against the mutilation of the copyrighted work.
What are the remedies in case of an infringement of copyright?
The Law provides civil and criminal remedies in case of infringement of copyright. Copyright infringement is a cognizable offence where a Police Officer not below the Rank of a Sub-Inspector can arrest the offender without the warrant and conduct the search even without prior authorization of a Court. Copyright infringement if proved in a Court of Law carries a minimum mandatory sentence of imprisonment of six months and minimum fine of Rs. 50,000 which can extend upto Rs. 2 lakh. The Act further provides that there will be an enhanced penalty in case of second and subsequent convictions. In Civil Cases, the District Court can be persuaded not only to give an interim injunction without notice to the other party but also usually gives a direction under Order 39 Rule 7 of C.P.C. where a Commissioner appointed by the Court will visit the premises of the infringers and will be empowered to conduct a search of the inventors premises and cease infringing material from the infringers premises. The seized material can be used at a later point of time to establish infringement. In UK these types of orders are called ANTON PILLOR ORDERS.
Is it possible for other people to use the copyrighted work even without the consent of the owner?
Yes. But before that they would have to apply to the Copyright Board and obtain a Compulsory License. The Board will determine the terms and conditions under which the other person can get a compulsory license. In addition, the Section 52 lays down that certain types of uses of Copyright will not amount to a copyright infringement.
What are the authorities created under the Copyright Act?
Under the Copyright Act there is a Registrar of Copyright and a Copyright Board, which specifically ascertain roles and responsibilities. Copyright Office is an Administrative Authority and Copyright Board is a quasi–judicial body headed by a retired Supreme Court Judge.
Who is an author?
Under the copyright law, the creator of the original expression in a work is its author. The author is also the owner of copyright unless there is a written agreement by which the author assigns the copyright to another person or entity, such as a publisher. In cases of works made for hire, the employer or commissioning party is considered to be the author.
Can a company be considered the author? Can an author and owner be different from one another?
A company can never be considered as an author of a work. However, it can become the owner, if the author creates the work within the scope of an employee's duties. A distinction between contract of employment and contract for services. In the first case the employer becomes the owner and in the second case the author becomes the owner.
Can I transfer my copyright?
Copyright can be 'assigned' (sold or given away) by the execution of a written document signed by the copyright owner. It is also possible for you to grant a copyright license, for a limited period of time, for specified forms of reproduction and merchandising, and in limited countries throughout the world. It can be for a specified flat fee or royalty, or both. In this way, you keep the copyright, and control over the merchandising, and still generate income, with the client also achieving their commercial aims.
What is the benefit of protecting my work?
Once your creation has been fixed in a tangible medium of expression the copyright on your work is protected by copyright law.
By registering your copyright you will have irrefutable proof of first ownership of your intellectual property.This proof can be used in a court of law in alleged cases of copyright infringement. When faced with an alleged case of copyright infringement you need this proof. Proving the date of creation can be a problem. Copyright registration can make the proof on this point a lot easier.
By registering it you will have an individually numbered certificate of registration of copyright relating to that particular copyright work.
What are the various international Treaties relating to the Copyright?
There have been numerous international copyright conventions some of which include; Universal Copyright Convention at Geneva in 1952.
Universal Copyright Convention as revised at Paris on 24th July 1971.
Berne Convention for the Protection of Literary and Artistic Works, Paris Act of 24th July 1971 as amended on September 28th 1979.[Note: The first Berne Convention was on September 9th 1886]WIPO World Intellectual Property Organization Diplomatic Conference Geneva, December 2 to 20, 1996
WIPO Copyright Treaty of December 20th 1996
WIPO Performances and Phonograms Treaty of December 20th 1996
The World Trade Organization Agreement on Trade Related Aspects of Intellectual Property Rights, Final Act Marrakech on 15th April 1994.
Does the copyright law protect the ideas of the author and the future commercial expressions of the same idea?
No. The copyright law does not protect the idea and protects only the method of expression of idea. If an idea can only be expressed in a single way, such expressions cannot be protected under the Law of Copyright. Future commercial expressions of the idea cannot be protected under the Law of Copyright and it can be protected only under the Law of Patent.
What are the criteria for award of copyright protection?
Copyright protection will be available if the following two conditions are fulfilled:
a. Originality, meaning that the work owes it origin to the author. Originality is different from novelty. An author of the work need not be the first to articulate the ideas or create the work.
b. Reduction into tangible form. For a work to be protected, it must be written down, drawn, painted or taped. Mere oral expression of idea will not qualify for copyright protection.
Is it compulsory to have registration for copyright protection?
No, it is not compulsory to register Copyright. Berne Convention grants “inherent protection” which means the holder does not have to comply with any formalities for the purposes of copyright protection. But we recommend you to obtain registration because registration is a prima facie proof of ownership and it might be easier to persuade judicial and administrative authorities to grant you interim relief even without notice to the infringers.
Wednesday, June 11, 2008
(i) whether A's contention is valid ?
(ii) whether B is entitled to commission on the sale price ?
(iii) what are the provisions of the Indian Contract Act in this regard ?
(i) A's contention is not valid.
(ii) Yes, @ 10 per cent on Rs. 10,000.
(iii) Revocation of authority of an agent does not, insofar as the agent is concerned, take effect until it becomes known to him and insofar as third parties are concerned until it becomes known to them.
Tuesday, June 10, 2008
Monday, June 09, 2008
Agent is not to deal on his own account. If the agent wants to do deal on his own account, he must disclose all the material facts to his principal and obtain his consent. The principal can rescind the contract, if any material facts were dishonestly concealed by the agent or the dealings of the agent on his own account have been disadvantageous to the principal.
In case of a non-gratuitous bailment, the bailor is liable to disclose all the faults whether known to him or not. Accordingly, the bailor shall be liable for damages for any loss caused to the bailee whether or not he was aware of the faults.
In the the given case the hire of carriage of B by A amounts to non-gratuitous bailment. Therefore, it was the duty of B to disclose to A that the carriage was unsafe. It is immaterial as to whether or not B was aware of the fact that the carriage was unsafe. A is entitled to claim compensation from B.
Where a contract to give time to the principal debtor is made by the creditor with a third person, and not with the principal debtor, the surely is not discharged. Accordingly, A is not discharged from his liability.
The surely is discharged by any act or omission of the creditor, the legal consequence of which is the discharge of the principal debtor. Failure to supply the necessary material by B (i.e., the creditor) amounts to an omission on the part of the creditor resulting in discharge of A (i.e., the principal debtor), and consequently, C (i.e., the surety) is discharged.
Saturday, June 07, 2008
A trade term requiring the seller to arrange for the carriage of goods by sea to a port of destination, and provide the buyer with the documents necessary to obtain the goods from the carrier.
Contracts involving international transportation often contain abbreviated trade terms that describe matters such as the time and place of delivery, payment, when the risk of loss shifts from the seller to the buyer and who pays the costs of freight and insurance. The most commonly known trade terms are Incoterms, published by the International Chamber of Commerce (ICC). These are often identical in form to domestic terms (such as the American Uniform Commercial Code), but have different meanings. As a result, parties to a contract must expressly indicate the governing law of their terms. It's important to realize that because this is a legal term, its exact definition is much more complicated and differs by country. Contact an international trade lawyer before using any trade term.
A trade term requiring the seller to deliver goods on board a vessel designated by the buyer. The seller fulfills its obligations to deliver when the goods have passed over the ship's rail. When used in trade terms, the word "free" means the seller has an obligation to deliver goods to a named place for transfer to a carrier.
Contracts involving international transportation often contain abbreviated trade terms that describe matters such as the time and place of delivery and payment, when the risk of loss shifts from the seller to the buyer, as well as who pays the costs of freight and insurance. The most commonly known trade terms are Incoterms, which are published by the International Chamber of Commerce. These are often identical in form to domestic terms, such as the American Uniform Commercial Code, but have different meanings. As a result, parties to a contract must expressly indicate the governing law of their terms. It's important to realize that because this is a legal term, its exact definition is much more complicated and differs by country. It is suggested that you contact an international trade lawyer before using any trade term.