May 27, 2020

The Principles of The Law of Liquidated Damages under Indian Laws

Let us first learn Law relating to Liquidated damages in India. Section 73 in The Indian Contract Act, 1872 Compensation for loss or damage caused by breach of contract.—When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. —When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.” Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. Compensation for failure to discharge obligation resembling those created by contract.—When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract. —When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract.” Explanation.—In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account. Section 74 in The Indian Contract Act, 1872 74 Compensation for breach of contract where penalty stipulated for:- [When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for. Explanation. — A stipulation for increased interest from the date of default may be a stipulation by way of penalty.] (Exception) — When any person enters into any bail-bond, recognizance or other instrument of the same nature or, under the provisions of any law, or under the orders of the  [Central Government] or of any  [State Government], gives any bond for the performance of any public duty or act in which the public are interested, he shall be liable, upon breach of the condition of any such instrument, […]

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January 19, 2022

CONFLICT OF LAWS:  CAN ARBITRATION OVERRULE RERA?

This is an important issue especially when the same tribunal namely MahaRERA has passed two controversial Orders on this issue. Let us see what is the provision of the Arbitration Act and what is an Arbitration proceeding. Arbitration Act : Power to refer parties to arbitration where there is an arbitration agreement.— (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to the arbitration. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made. Jurisdiction of RERA Now let us see provisions of The Real Estate (Regulation and Development) Act, 2016.( RERA) Application of other laws not barred.—The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. Act to have overriding effect.—The provisions of this Act shall have an effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Judicial pronouncements: Booz-Allen & Hamilton Inc vs Sbi Home Finance Ltd. & Ors on 15 April 2011  Arbitral tribunals are private fora chosen voluntarily by the parties to the dispute, to adjudicate their disputes in place of courts and tribunals which are public fora constituted under the laws of the country. Every civil or commercial dispute, either contractual or non-contractual, which can be decided by a court, is in principle capable of being adjudicated and resolved by arbitration unless the jurisdiction of arbitral tribunals is excluded either expressly or by necessary implication. Adjudication of certain categories of proceedings is reserved by the Legislature exclusively for public fora as a matter of public policy. Certain other categories of cases, though not expressly reserved for adjudication by public fora (courts and Tribunals), may by necessary implication stand excluded from the purview of private fora. Consequently, where the cause/dispute is arbitrable, the court where a suit is pending will refuse to refer the parties to arbitration, under section 8 of the Act, even if the parties might have agreed upon arbitration as the forum for settlement of such disputes. The well-recognized examples of non-arbitrable disputes are (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offenses; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding-up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes. It may be noticed that the […]

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January 13, 2022

DOES THE INVESTOR HAVE A REMEDY AGAINST ERRING BUILDERS UNDER REAL ESTATE AND REGULATION ACT ,2016 ( RERA) ?

To answer this query let us understand the provisions of RERA,2016 2(d) “allottee” in relation to a real estate project means the person to whom a plot, apartment or building, as ,he case may be, has been allotted, sold (whether as freehold or leasehold) or otherwise transferred by the promoter, and includes the person who subsequently acquires the said allotment through sale, transfer or otherwise but does not include a person to whom such plot, apartment or building, as the case may be, is given on rent. FILING OF COMPLAINTS WITH THE AUTHORITY OR THE ADJUDICATING OFFICER (1) Any aggrieved person may file a complaint with the Authority or the adjudicating officer, as the case may be, for any violation or contravention of the provisions of this Act or the Rules and Regulations made thereunder against any promoter allottee or real estate agent as the case may be. Explanation.—For the purpose of this sub-section “person” shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force. (2) The form, manner, and fees for filing a complaint under sub-section (1) shall be such as may be specified by regulations. The first of such complaint was filed before Maharashtra RERA authority in COMPLAINT NO: CC006000000000789 Mahesh Parian vs Monarch Solitaire Facts: The Complainant has invested some amount in the residential Project known as ‘monarch Solitaire’ and reserved four apartments in the said Project in 2014. The said project is registered under  MahaRERA registration No. P51700012008. The Complainant stated that after reservation of four apartments, Respondent neither gave his invested money back with interest nor is giving the possession of the apartments earmarked for him. Therefore, he prayed that MahaRERA pass an appropriate order for recovery of the principal amount with interest. Observation:  documents entered into between parties Tribunal observed that  the Complainant and Respondent have signed a ‘Memorandum of Understanding’ on 12s March 2014 from which it is seen that the Complainant is an investor in the said Project and not an allottee. The ‘Memorandum of Understanding’ mentions that when the complainant sells his apartments in the market then the profit from such a sale will be shared between the complainant and respondent in the ratio of 70:3O”. It means that the Complainant has the status of a ‘Co-promoter’ of the Project, as clarified in MahaRERA circular.  NOTE: As per records of Maha-RERA this matter was subsequently withdrawn before Appellate Authority. Can draw a hypothesis that it was settled. Next came was M/s. Srushti Sangam Developers Pvt. Ltd vs Sarvapriya Leasing (P) Ltd. APPEAL NO. 000600000001 0557 Facts: The Promoter was developing a project namely Maulick Enclave at Chembur, Mumbai. lt is a redevelopment project consisting of residential premises and shops and offices. promoter and owner of the land had executed registered agreements of redevelopment in the year 2003. As the project was incomplete on 11 May 2017 i.e. on the day of application of RERA Act 2016. promoter has registered a project with [MahaRERA and it bears registration No. P518000J2986.] The investor cum allottee had paid a total sum of Rs.4,53,71,1001 […]

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December 23, 2021

HINDU MARRIAGE WITHOUT PERFORMING KANYADAAN CEREMONY IS VALID OR VOID MARRIAGE?

 Nowadays youngsters want to do something new to be some news. Especially Hindus want to break traditions which they are doing since colonial rule. We read in the newspaper a couple got married by taking oath on Constitution and some news girl refused to perform “Kanya Daan” as she wants to remain being Papa ki Pari. Love has no boundaries may it be daughter and father. Till a family has only one daughter things are smooth, but there are twirls and twists if a family also has a son. Then the daughter-in-law is also her Papa ki Pari. Well, let’s now turn to the captioned question. How adventurous, heroic and courageous to break the traditions which are part of our Vedic scriptures. What does the law say? Hindus have two types of schools. Mitakshara and Dayabhaga Dayabhaga is followed in West Bengal and Mitakshara in the rest of India. The difference is about inheritance. Now let us understand provisions of the Hindu Marriage Act,1955 Section 3 deals with definitions. Definitions.—In this Act, unless the context otherwise requires,— (a) the expressions “custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: Provided that the rule is certain and not unreasonable or opposed to public policy, and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family. What are the conditions of marriage under Hindu Law? Conditions for a Hindu marriage.—A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:— (i) neither party has a spouse living at the time of the marriage; [(ii) at the time of the marriage, neither party— (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity ***;] (iii) the bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other unless the custom or usage governing each of them permits of a marriage between the two; Ceremonies for a Hindu marriage.—(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. TO EXPOUND AND EXPLAIN THE CEREMONIES UNDER VEDIC SCRIPTURES: There is no standard Hindu marriage ceremony. Regional variation is […]

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November 19, 2021

MAKING AND REPEAL OF LAWS A FAILED STRATEGY OR STRATEGY TO FAIL CONSTITUTION?

Today Prime Minister of India Shri Narendra Modi in an address to the Nation has withdrawn three Farm Laws which were made after following due process of law as envisaged in Constitution of India. BRIEF HISTORY OF LAWS THAT WERE EITHER ABANDONED /WITHDRAWN OR STAYED BY A COURT OF LAW IN THE LAST SEVEN YEARS. THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013 (also Land Acquisition Act, 2013) passed by the Indian Parliament that regulates the land acquisition and lays down the procedure and rules for granting compensation, rehabilitation, and resettlement to the affected persons in India. The Act has provisions to provide fair compensation to those whose land is taken away, brings transparency to the process of acquisition of land to set up factories or buildings, infrastructural projects, and assures rehabilitation of those affected. The Act establishes regulations for land acquisition as a part of India’s massive industrialization drive driven by a public-private partnership. The Act replaced the Land Acquisition Act, 1894, a nearly 120-year-old law enacted during British rule. HOW PASSED? The Land Acquisition, Rehabilitation and Resettlement Bill, 2011 was introduced in Lok Sabha on 7 September 2011. The bill was then passed by Loksabha on 29 August 2013 and by Rajya Sabha on 4 September 2013. The bill then received the assent of the President of India, Pranab Mukherjee on 27 September 2013. The Act came into force on 1 January 2014. In May 2014, the present Narendra Modi NDA government promulgated an Ordinance to amend the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (RFCTLARR) Act, 2013, which was enacted during the previous  UPA regime referred to hereinabove under the caption titled which came into effect from January 1, 2014. The new law replaced /repealed the Land Acquisition Act, 1894, which had been in force for over a century. On December 31, 2014, exactly one year after the new law had come into effect, the present NDA government sought to amend it by promulgating the RFCTLARR (Amendment) Ordinance, 2014. An amendment bill was introduced in Parliament to endorse and validate the Ordinance. Lok Sabha passed the bill but the same couldn’t be passed in Rajya Sabha as the present NDA government had no majority numbers to pass the said Bill. On 30 May 2015, the President of India promulgated the amendment ordinance for the third time   HOW WAS IT EVENTUALLY WITHDRAWN? Considering continuing anger against the amendment, Prime Minister Modi announced the decision to withdraw the Ordinance in his Mann Ki Baat program broadcast on August 31, 2015, and the said Ordinance has lapsed. (Courtesy India Times) CCA- NRC THE CITIZENSHIP (AMENDMENT) ACT, 2019 The Citizenship (Amendment) Act, 2019 was passed by the Parliament of India on 11 December 2019. It amended the Citizenship Act, 1955 by providing a gateway to Indian citizenship for persecuted religious minorities from Afghanistan, Bangladesh, and Pakistan who are Hindus, Sikhs, Buddhists, Jains, Parsis, or Christians, and arrived in India before the end of December 2014. The law does not grant such eligibility to Muslims from these Muslim-majority countries. […]

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November 7, 2021

ANCIENT INDIA VEDIC USAGE OF  CANNABIS  AND TODAY’S NARCOTIC SUBSTANCE

  When I wrote a negative comment about Aryan Khan on Facebook, I was taken a back by a question why Sadhus drug themselves. This was asked none other than a Hindu may be pseudo-secular or the one who made Khans rule over this country though being Khan by a dialogue “ I am Khan and I am not a terrorist”. Our generation is not knowledgeable may be literate.  Literacy means which generates a lot of wealth in terms of money.  I then did research and I recalled having read Sam Ved in Gujarati. Som Ras and Som Paan is an integral part of Aryans. Bhang is offered to Lord Shiv as it heals his pain of consuming poisonous substances during Samudra Manthan. In general, devotees offer even milk to relive his sufferings which Lord Shiv consumed to save the universe. Indian history and Hindu Aryan culture have the tradition to use cannabis, bhang, and other plants as medicine.  The mention is found in Atharva Ved.  There is also mention of Soma Paan by Indra Dev Sukta 56 – 5348.  Consumption of Soma Ras made from herbs on the holy mountain of Himalaya gives the different abilities and sparkling personality.  It was used as medicine for different diseases and during surgery in ancient India.  The mention is in Sushrut Samhita. There is also mention of Madya Paan in Chandipath in Adhyay 3 mantra 34-35 where the supreme powered goddess consumes Madhypan before elimination of devil Mahishasur. Cannabis and its derivatives (marijuana, hashish/charas, and bhang) were legally sold in India until 1985, and their recreational use was commonplace.  Consumption of cannabis was not seen as socially deviant behavior and was viewed as being similar to the consumption of alcohol.  Ganja and Charas were considered by upper-class Indians as the poor man’s intoxicant, although the rich consumed bhang during Holi. The United States began to campaign for a worldwide law against all drugs, following the adoption of the Single Convention on Narcotic Drugs in 1961.  Article 49 of the Convention required Parties to completely abolish, over a maximum period of 25 years from the coming into force of the Convention, all quasi-medical use of opium, opium smoking, coca leaf chewing, and non-medical cannabis use.  All production and manufacture of these drugs were also to be abolished within the same time periods.  Only Parties for which such uses were “traditional” could take advantage of the delayed implementation; for others, prohibition was immediate.  As the maximum time ended in 1989, these practices are today fully prohibited, and the drugs may be used only for domestically regulated medical and scientific purposes. However, India opposed the move and withstood American pressure to make cannabis illegal for nearly 25 years.  American pressure increased in the 1980s, and in 1985, the Rajiv Gandhi government succumbed and enacted the NDPS Act, banning all narcotic drugs in India. WHAT IS THE DIFFERENCE BETWEEN ANCIENT INDIAN CANNABIS AND TODAY’S NARCOTIC SUBSTANCE? In ancient India, Som Paan was enjoyed by supreme lords and kings as they had to fight devils and evil forces, which we discussed above.  There was no “Drug abuse” […]

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