CAVEAT

Caveat literally means “let him beware”. It is a caution registered in a public court or office to indicate to the officials that they are not to act in the matter mentioned in the Caveat without first giving notice to the Caveator. Certain examples of a Caveat are: in connection with the grant of marriage licenses, dealings with land registered in the land registry and probably one of the most important instances is Caveat in probate proceedings. The office of a Caveat in probate proceedings is to arrest the proceedings until the truth of the facts alleged or affecting the validity of the will can be determined, and it ensures to the benefit of all parties interested in the subject.

Objective

A Caveat protects the Caveator’s interest. The Caveator is ready to face the suit or a proceeding which is predictably to be instituted by his opponent. For this reason, no ex-parte order can be passed against the Caveator.

Form

No form is prescribed for the Caveat. The Caveator must file a Caveat in the form of an application or petition before the court. He must submit the cause of action giving the name and description of the opponent along with the petition. The copy of the application will be then sent to the opponent party in advance by registered post, acknowledgement due before filing it in the Court. A Caveat remains in force for 90 days from the date of filing.

Important points

Some of the important points to be remembered while filing a Caveat:

  • A Caveat can be filed only to oppose the application and not support it.
  • It is mandatory under the law, to give notice to the Caveator about the filing and the date of hearing of the application.

 

 

 

SANCHAYEETA DAS

Associate

 

WHITE COLLAR CRIME

corporate crime

 

“A crime committed by a person of respectability and high social status in the course of his occupation” – Edwin Sutherland

Not every crime involves a smoking gun. Some crimes are committed right under the victim’s nose without a single shot fired.

A white-collar crime is a non-violent crime that is committed by a person, typically for financial gain. It is committed by an individual or a group of individuals, usually with the intention to benefit himself/herself. The benefits can be in the form of monetary value or goods and services. The white-collar criminal can be an office worker, business manager, etc. Fraudulent advertisements, infringement of patents, publication of falsified balance sheet of business, passing of goods, concealment of defects in the commodity for sale, etc. are some examples of white collar crime.

Types of white collar crime in India

Fraud

A Fraud is deemed to be committed if any of the following elements is present:

  • A false statement of material facts occurred.
  • The defendant was aware that the statements made were false.
  • The defendant meant to make the false statements.
  • The victim relied on the statements to be true.
  • The victim lost something as a result of the false statements.

Not every false statement of fact can be considered as a fraudulent act. The statement must be of such significance that the facts or facts alone were used by the victim to make an important decision.

Bribery

Bribery is the act of giving money, goods or other forms of reward to a recipient in exchange for an alteration of their behaviour to the benefit or interest of the giver.

Many types of payments can constitute bribes: tip, gift, discount, free food, free ad, free tip, free tickets, inflated sale of an object or property, donation, fundraiser, higher paying job, secret commission, promotion, etc.

Computer Fraud

Computer Fraud is an act using computers, the internet, internet devices, and internet services to defraud people, companies, or government agencies for money, revenue, or internet access. There are many methods to conduct these activities. Phishing, hacking, etc. are some common examples.

Credit Card Fraud

Credit card fraud is a common term used for theft and fraud committed using or involving a payment card, such as a credit or a debit card. The purpose is to obtain goods without paying or to obtain unauthorized from an account.

Educational Institution

Privately run educational institutions in this country are another field where white collar criminals work with freely. The governing bodies of these institutions manage to secure large sums by way of government grants by submitting fake details about their institutions.

The real solution to this problem can come from the people who are affected by it. If everyone in their business or company keeps an eye out for anything suspicious, that alone can deviate potential thieves. Most of us do not give much thought to the rising white collar crimes as these are the things that we read in newspapers. But this needs to be sorted before it gets out of control.

 

Sanchayeeta Das

Associate

The Indian Lawyer

 

 

THE IMPORTANCE OF A WEBSITE’S TERMS AND CONDITIONS AND PRIVACY POLICY

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You are in process of creating a website for your business, when the developer asks for your Terms and Conditions and Privacy Policy page, a question comes to your mind, do you really need to create a Terms and Conditions and Privacy Policy page for your website?

Depending on your website or mobile/desktop app, you’ll need a Privacy Policy agreement and a Terms and Conditions (T&C) agreement. These agreements have to be evidently posted on the website or through the app, to include the word “Privacy” and “Terms of Use” in the title of the agreements.

Each of these two legal agreements serves different purposes for both you (the company operating the website/mobile app) and your users.

WHAT IS TERMS AND CONDITIONS AGREEMENT

A Terms & Conditions (T&C) agreement sets forth terms, conditions, requirements, and clauses relating to the use of your website or mobile/desktop app, e.g. copyright protection, accounts termination in cases of abuses, and so on.  It is also known as a User Agreement or Terms of Service or Terms of Use agreement. It is a legal agreement that sets forth the rules, requirements, and standards of using a website or a mobile/desktop app.

For example, common sections of a T&C include information on copyrights, account deactivation if certain users abuse the website or app, billing and subscriptions, forbidden activities and uses of the website platform, and various disclaimers.

It’s highly recommended to have one as you can prevent abuses happening to your website or mobile/desktop app, and to limit your own liability as the owner of the online business.

Without this kind of agreement in place, and without it being properly enforced, there is no way you can legally limit or control how anyone can use or can’t use your website or app.

Issues of copyright infringement can appear if users make use of your content without your permission, or issues of abuses such as someone spamming other users or posting defamatory content on your website.

A Terms & Conditions agreement lets you include language to forbid such activity, and can also provide a remedy (such as accounts deletion) in the event these abuses do occur.

It’s highly recommended that online business (regardless if they operate just a simple website or a simple mobile app) that allow or require a user to register for an account have this agreement in place and present it to users at the time of their account registration.

Here is what you should keep in mind for a Terms & Conditions agreement:

  • You can create this agreement to include licensing rights, rules and guidelines for your users.
  • Include a section that allows you to terminate user accounts in the event of abuses, or under any circumstances you wish to include.
  • This agreement is where you can maintain control over your website or app, so make sure to include any limitations and restrictions that you want to be able to enforce.

 

WHAT IS PRIVACY POLICY AGREEMENT

A Privacy Policy agreement is required if you collect or use any personal information from your users, e.g. email addresses, first and last names etc. The purpose of this agreement is to inform users about your collection and use of personal data of users.

If your website or app (regardless if it’s a mobile app or a desktop app) collects and uses any kind of personal information from users, you are required by law to have the Privacy Policy agreement and make it available to your users, preferably before they start using your website or app.

Personal information” can include any information that can be used to identify an individual, such as a name, email address, mailing address, birth-date, IP address, etc.

It requires the following to be disclosed by a business:

  • What personal information is collected through the website/app
  • What’s the purpose of collecting this information
  • How the collected information is used by business and/or by any third parties
  • How can user review and make changes to their information

 

Here is what you should keep in mind for Privacy Policy agreement:

  • Create this agreement separately from all other legal agreements.
  • Make sure the agreement is an honest and accurate reflection of what personal information you actually collect and how you actually use that data.
  • Include the word “Privacy” in the name of this agreement and in any links you provide that links to this legal page.
  • Make sure this agreement is it’s own separate agreement, regardless of where you display it: in your website’s footer section, on one of your mobile app’s screens, and so on.

 

Privacy Policies should document your privacy practices. Update it as soon as anything changes, such as if you begin to collect a different type of personal information from your users, or if you begin to allow third parties to access the information when you didn’t in the past.

 

PARUL

SENIOR ASSOCIATE

FORECLOSURE LAW

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If one is in a foreclosure, or is falling behind on mortgage payments, it’s crucial to understand the basics of the foreclosure process in order to avoid its dire consequences.

Foreclosure is a legal process in which a lender attempts to recover the balance of a loan from a borrower, who has stopped making payments to the lender, by forcing the sale of the asset used as the collateral for the loan.

The main players involved in residential mortgage loan transactions and foreclosures are:

The borrower: The borrower is the individual (the homeowner) who borrows money and pledges the home as security to the lender for the loan.

The lender: The lender gives the loan to the borrower.

The investor: An investor buys loans from lenders.

The service: The service (the company the borrower has to make monthly payment to) manages the loan account on behalf of the lender or investor.

Loan servicers, collect and process loan payments and pursue foreclosure when the borrower stops making payments.

There are two types of foreclosure:

Judicial foreclosure: it requires the lender to go through the court system to take back ownership of the property. The lender will have to initiate foreclosure by filing a lawsuit against the borrower. All the parties have to be notified of the foreclosure. A judicial decision is announced (usually at a short hearing) after the exchange of pleadings.

Non-judicial foreclosure: here, if a power of sale clause is mentioned in the mortgage or if such a clause was used in a deed of trust, then the lender can use foreclosure by power of sale.  There is no court supervision.

In some cases lenders make adjustments to the borrower’s repayment schedule so that he/she can afford the payments and thus retain ownership. This situation is known as special forbearance or mortgage modification.

Preforeclosure

In case of both judicial and non-judicial foreclosures, the foreclosing party must typically mail the other party stating that foreclosure proceedings will start upon non-payment of the loan amount. The notice generally provides 30 days to the borrower to pay the due amounts.

Defenses to foreclosure

The borrower can pursue certain defenses depending upon the situation:

  1. The foreclosing party can’t prove that it owns the debt.
  2. The borrower is on active duty in the military and is entitled to protection from foreclosure under the Service members Civil Relief Act (SCRA).
  3. The foreclosing party did not follow the required procedure to foreclose.

 

 

 

SANCHAYEETA DAS

ASSOCIATE

THE SUPREME COURT’S VERDICT OF REINSTATING OF CONGRESS GOVERNEMENT IN ARUNACHAL PRADESH

Thirteenth of July, 2016 saw a historic judgment by aFive Judge Constitutional Bench (comprising Justices J.S. Khehar, DipakMisra, Madan B. Lokur, P.C. Ghose and N.V. Ramana) of the Supreme Court of India, which paved the way for the reinstatement of Congress-led NabamTukiGovernment to power. The crisis started on December 9 2015, when a group of rebel Congress MLAs approached Governor Jyoti Prasad Rajkhowa seeking impeachment of Speaker of Arunachal Pradesh Legislative Assembly, NabamRebia on the grounds that he is trying to get them disqualified from the Assembly because they had snapped their ties with Congress, by their refusal to respond to, or associate with the political leadership in the State, and for their having expressly refused to attend the meetings of the Party. The Governor agreed and preponed the Assembly session from January 14, 2016 to December 16, 2015 to initiate the impeachment motion of the Speaker. When this came to the knowledge of the Speaker, he disqualified those 14 Congress MLAs on December 15 and during the special session the impeachment motion was passed and Congress Dissident leader KalikhoPulwas ‘elected’ as the Leader of the House.

When the Gauhati High Court dismissed the plea of the Speaker, then he approached the Supreme Court. Meanwhile, President’ rule was imposed in the State by the Centre due to complete breakdown of law and order owing to which firstly, the Chief Minister, NabamTuki filed a separate petition in January in the apex court challenging it, secondly, the Governor appointed a new government so that the President’ rule is lifted, when in February 2016 “Pul” was sworn in as the ninth Chief Minister of Arunachal Pradesh.

The Supreme Court then observed that it was empowered to intervene in matters if there were constitutional violations say, in the manner in which the Arunachal Pradesh Governor issued orders that have eventually led to formation of a new government in the state. Therefore, it heard all the petitions and gave the following verdict:

 

  1. Art 163 of the Constitution (Council of Ministers to aid and advise Governor)

Although the Governor has certain discretionary powers which are beyond scope of judicial review but it is not a general discretionary power to act against or without the advice of his Council of Ministers. In fact, the area for the exercise of discretion is limited where his actions should not be arbitrarily taken but be backed by good intent, reason and good faith and if it happens otherwise then any discretion exercised beyond the Governor’s jurisdictional authority, would certainly be subject to judicial review.

 

  1. Art 174 of the Constitution (Governor’s power to summon, prorogue, dissolve House)

The Governor never called for a floor test, so inference that was drawn by the Court was that he did not have a doubt that the Chief Minister and his Council of Ministers were still enjoying the confidence of the majority, in the House. Nor was a motion of no confidence moved against the Government. So it was held that the Governor using his discretion to summon the House, preponed the Assembly session was beyond his jurisdiction or power as it was done without the aid and advice of the Council of Ministers with the Chief Minister as the head.

 

Art 175 and 200 of the Constitution (to give messages to the Assembly regarding pending Bills and assent to Bills pending in State Legislature respectively)

Governor’s functions under Art 175 and 200, do not include interference with State Legislative Assembly’s activities especially with regard to the disqualification of MLAs under Tenth Schedule.

 

  1. Governor’s powers as under the Constitution
  • He is an independent constitutional office which is not subject to the control of the Government of India.
  • He is not an elected representative, but only an executive nominee whose powers flow from the aid and advice of the Cabinet.

 

(The then Vice-President of India, Shri G.S. Pathak, had remarked in 1970 that if there is a clash between the advice of the Centre and that of the State Council of Ministers, the Governor should act on the advice of the latter)

 

  • The Governor is not the conscience keeper or the ombudsman of the Legislative Assembly, in the matter of removal of the Speaker.

 

So he can’t assume the position of advising and guiding the Legislative Assembly, on the question of removal of the Speaker (or Deputy Speaker) or to require the Legislative Assembly to follow a particular course.

Moreover, a challenge to an action beyond the authority of the Governor, would fall within the scope of the judicial review, and would be liable to be set aside.

 

  1. Tenth schedule of the Constitution -Decision on questions as to disqualification on ground of defection

Justice Khehar wrote thata Governor must remain aloof from any disagreement, discontent or dissension, within political parties. The role of the Governor in such matters would fall beyond the spectrum of constitutional sanction.

On one hand, if the disqualification of MLAs petition under Tenth Schedule is heard first and they get disqualified then they won’t be able to participate in the motion for Speaker’s removal.

But if the removal of Speaker’s motion is held first and in case he does not survive the vote, then he would still be able to adjudicate upon the disqualification petitions filed under the Tenth Schedule. So, the court held that it would be constitutionally impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule, while a notice of resolution for his own removal from the office of Speaker, is pending.

Therefore, what the Court held was that Governor Rajkhowa used his constitutional authority to oust a group of rebel Congress MLAs disqualified under the Tenth Schedule which is unconstitutional and so the Congress government was reinstated in the State.

 

DALIPARTHY HARINI

LEGAL ASSOCIATE

THE JUVENILE JUSTICE LAW 2015

JUVENILE JUSTICE LAW 2015

Keeping in view the need for justice to be ensured to victims of heinous offences, major changes were brought about in criminal laws, especially those dealing with rape; likewise there was a the Houses of Parliament saw the need to amend the law dealing with juvenile offenders, especially in cases of heinous offences, owing to which they had passed the Juvenile Justice (Care and Protection of Children) Amendment Bill 2015 during the winter session of Parliament and thereafter President Pranab Mukherjee gave his assent on December 31 2015. The Ministry of Woman and Child Development had passed orders stating that the Juvenile Justice (Care and Protection of Children) Act 2015 would be enforceable from January 15, 2016. The Act replaces the JJ Act of 2000 that took a reformative approach towards juveniles under 18 years, irrespective of the severity of their crime.

 

Highlights of the new law:

  1. Setting up of Juvenile Justice Board (Sec 4), Child Welfare Committees (Sec 27), Child Care Institution (Sec 41) and a Place of Safety (Sec 49).
  2. By virtue of section 18, the Juvenile Justice Board (comprising of a judicial magistrate and two social workers as members) has been authorized –

 

  • To try and decide petty or serious offences committed by juveniles aged below eighteen years

-i.e. whether to convict the juvenile for committing serious offence and send to a place of safety (set up by the concerned state government under section 49) or an observation home attached to a child care institution or convict the juvenile for committing a petty offence and send for rehabilitation;

 

  • To try and decide heinous offences (imprisonment for which is seven years or more under IPC) committed by juveniles aged between 16 and 18 years

– i.e. conduct a preliminary inquiry and if found to have committed heinous offence (like rape, murder, etc), such juvenile will be sent to a children’s court that can pronounce the child guilty and thereafter send the juvenile to a place of safety or child care institution instead of jail until he attains the age of 21, when he shall be transferred to jail (if the term of imprisonment is not yet complete), as per section 19(3).

 

  1. Apart from the Juvenile Justice Board, the High Court or the Children’s Court may also hear and decide them when the proceedings are initiated under section 19 or appeal, revision or otherwise.
  2. It also provides for adoption of children. A central adoptive resource agency will frame the rules for adoption, which will be implemented by state and district level agencies.

 

CRITICISMS

 

  • A juvenile law expert Anant Asthana

He opines that the new law has been putting undue pressure on the system at a time when the rules and regulations of the law are not yet in place.  He further states that in states such as Rajasthan, Odisha, Chhattisgarh and Jharkhand, ‘place of safety’ are held in regular jails as these states never set up the institution. In Delhi, the ‘place of safety’ was situated within the Tihar jail premises until the High Court suo moto took cognizance of the matter and held that an institution for children cannot be within a jail only after which it was moved to Majnu ka tilla”.

 

  • The law had been criticized at the global level for having violated the UN Convention on the Rights of the Child to which India is a signatory because the latter mandates that all children under the age of 18 years be treated equal but the former lays down a distinction between juveniles convicted of petty offences and that of heinous offences.

 

  • Sameer Shaikh, a senior social worker-

He says that the purpose of the new law to provide care, protection, reformation of juveniles convicted of heinous offences in separate special homes are not being met as most special homes in India are characterised by crumbling infrastructure, dilapidated standards of hygiene, abysmal conditions of basic facilities such as food, bathroom and clothing and so on. For instance, at the David Sassoon Children’s Home (DSCH), Bhiwandi, it has seen overcrowding of juveniles which has often resulted in their aggressive behavior; it’s ill-staffed, ill-trained, ill-maintained; lack of proper routine or time table without any constructive activities allocated to them shows minimal scope for reformation.

To conclude, what is required to lessen these shortcomings is proper training and expertise to be provided to the staff employed there and also provision for qualified counselors. The plight of these juvenile justice homes was mentioned in the 2013 report by the Asian Centre for Human Rights (ACHR) which also stated that there inmates were subjected to sexual assault and exploitation, and other such inhuman conditions. Various social workers and newspaper authors suggested that unless proper steps focused on enhancing education programmes, counseling and therapeutic interventions, health and hygiene, vocational training, extra-curricular activities are taken, this vision of better quality of life and getting them integrated into society will not become a reality.

STARTUP INDIA

Startup-India-Standup-India

 

Startup India – Standup India

What is Startup India Standup India Campaign?

A new campaign named as “Startup India, Standup India” was announced by the Prime Minister Narendra

Modi during his speech on 15th August 2015. The scheme was launched on 16th January 2016 by the Modi Government to help young and innovative entrepreneurs of the country. This initiative by the Indian PM was started to give opportunities to the youth to become industrialists and entrepreneurs. Startups will be supported through finance from banks and funds from the investors through Government recommendations for the initial development so that they can grow and in the process, create more jobs and opportunities in Indian market.

 

Action Plan of Startup India Standup India Scheme

Startup India campaign is based on an action plan aimed at promoting bank financing for start-up ventures to boost entrepreneurship and encourage startups with jobs creation. The PM has also requested all the banks to support at least one dalit and one woman entrepreneur. This scheme will motivate and promote new comers towards business and help in boosting the economy of the country.

The Ministry of Human Resource Development and the Department of Science and Technology have agreed to partner in an initiative to set up over 75 such startup support hubs in the National Institutes of Technology (NITs), the Indian Institutes of Information Technology (IIITs), the Indian Institutes of Science Education and Research (IISERs) and National Institutes of Pharmaceutical Education and Research (NIPERs).

Various Incubators are appointed in above listed institutes to give their recommendations to new and innovative startups so that they can take the benefits of the scheme. The scheme also provide for a tax holiday for three years in the initial 5 years of the business. The main aim of this scheme is to promote financing as well as offer incentives for start-up ventures to boost the entrepreneurship as well as the Indian job market.

 

Conclusion

This initiative is a necessity to lead India in the right direction. As a country with the highest population of youth in the world the scheme is made to keep the youth in focus. As start-up entrepreneurs they have fresh minds, innovative ideas, required strength, energy, skills, and new thoughts to lead business. This scheme has given a great impetus to the youth of the country who are actively registering themselves.

 

IMPORTANCE OF TRADE MARK REGISTRATION

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WHY YOU NEED TO CONSIDER REGISTERING TRADE MARK FOR YOUR BUSINESS:

  • A trade mark is an important asset for one’s business and contributes to the goodwill generated.
  • A registered trade mark can stop others from using your trademarked business name / logo etc. with regards to good(s) or service(s) if it is registered.
  • Trade mark can be considered as an asset as it can be sold, licensed or assigned.
  • A trade mark guarantees the identity of the origin of good(s) and service(s).
  • A trade mark stimulates further purchase.
  • A trade mark serves as a badge of loyalty and affiliation.

 

WHAT IS TRADE MARK?

A trade mark is a sign, symbol, word, or words legally registered or established by use as representing a company or product.

You can use to distinguish your business’ good(s) or service(s) from those of other traders. A trade mark can be represented graphically in the form of your company’s logo or a signature.

 

BENEFITS OF REGISTERING A TRADE MARK 

The registration of a trade mark confers upon the owner the exclusive right to the use the trade mark in relation to the good(s) or service(s) in respect of which the mark is registered and to indicate so by using the symbol (R), and seek the relief of infringement in appropriate courts in the country.  The exclusive right is however subject to any conditions entered on the register such as limitation of area of use etc.  Also, where two or more persons have registered identical or nearly similar marks due to special circumstances, such exclusive right does not operate against each other.

It takes a lot of efforts and time to create a brand of any good(s) or service(s). Once created, all benefits and rights tangible or otherwise, associated to it becomes your property and can reap you infinite goodwill.

 

WHY IT IS IMPORTANT

Since trade mark provides exclusive right over your mark it distinguishes your product form your competitors. It also helps consumers ascertain that different good(s) are from a single source and of a particular quality.

Building Trust / Goodwill – Serving the public with quality product under a registered trade mark helps you to build up trust/loyalty of your consumers. A registered trade mark also portrays that you personally care about your brand which further passes on positive values about your brand in public.

Legal Protection – Once the Trade mark is registered the owner has the power to sue any third party who tries to infringe your brand.

Exclusive IdentificationTrade mark helps a consumer to identify uniquely the product and service provided by you. It builds up an image in the marketplace.

 

FUNCTION OF A TRADEMARK

Under modern business condition a trade mark performs four functions:

  • It identifies the good(s)/ or service(s) and its origin.
  • It guarantees its unchanged quality
  • It advertises the goods/service(s)
  • It creates an image for the goods/ service(s).

 

WHAT CAN BE TRADEMARKED?

  1. Brand Name i.e. Idea etc.
  1. Logo i.e. Idea  Idea_Cellular_Logo.svg
  2.  Slogan i.e. An Idea can change your life (Idea)No-idea-get-idea

 

  1. Short Phrases i.e. “what an idea” (Idea).

 

RIGHT TIME TO REGISTER A TRADEMARK: The most asked question is “What is the right time for trade mark Registration”.

Registering your brand name in the early stages provides you an opportunity to check whether any company or organization is already using same or similar brand name which might lead to litigation or confusion in the targeted audience resulting in the loss of revenue. Moreover, protecting your brand name in initial stages will also provide you protection from the competitors by deterring them to use your brand name to reap profits.

WHO CAN USE SYMBOL ® IN INDIA – Only the proprietor of a trade mark whose trade mark has been registered in India can use the symbol ® in India. Using the symbol ® unless your mark has been registered in India is unlawful.

WHEN CAN THE SYMBOL ™ BE USED IN INDIA – Using this symbol with your trade mark simply implies that you claim to be the proprietor of the trade mark. There is no prohibition on the use of the symbol ™ in India.

There is a penalty prescribed under criminal laws for infringement of a trade mark in India. The penalty is for selling or providing service(s) using a false trade mark is a minimum of six months and maximum of three years and with fine not less than Rupees fifty thousand but which may extend to Rupees two Lakhs.

 

ONE PERSON COMPANY

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The concept of One Person Company (OPC) in India was introduced through the Companies Act, 2013 to support entrepreneurs who are on their own capable of starting a venture by allowing them to create a single person economic entity. One of the biggest advantages of a OPC is that there can be only one member in a OPC, while a minimum of two members are required for incorporating and maintaining a Private Limited Company or a Limited Liability Partnership. Similar to a Company, an OPC is a separate legal entity from its members, offers limited liability protection to its shareholders, has continuity of business and is easy to incorporate.

 

Features of a One Person Company-

  1. Only one shareholder- only a natural person, an Indian citizen and resident in India is eligible to incorporate a One Person Company.
  1. Nominee for the shareholder- the shareholder can appoint another person to become the shareholder in case of death or incapacity of the original shareholder.
  1. Director- can have minimum one director. The Sole shareholder can himself be the Sole Director. A One Person Company may have a maximum of 15 directors.

 

There are a few limitations even though OPC allows a single entrepreneur to run a business. Cited below are some of the limitations:

  • Every OPC must nominate a nominee Director in the MOA or AOA who will become the owner of the OPC in case the promoter Director is disabled.
  • An OPC has to be converted into a Private Limited Company if the annual turnover crosses Rs. 2 Crores and file audited financial statement with the Ministry of Corporate Affairs at the end of each Financial Year.

 

Advantages of one person company-

  • Separate legal entity.
  • Uninterrupted Existence.
  • Borrowing Capacity.
  • Easy Transferability.
  • Owning Property.
  • Limited Liability.

 

The concept of OPC is a new concept and it will take some time to be incorporated with complete efficiency. The reason behind it may be less paper work, one person company can form a company without any additional shareholder, and if the members are willing to add shareholders, all he needs to do is modify the Memorandum of Association and file it before ROC. When the concept of OPC was first introduced in India, it was solely aimed for the structured organized business, with a different legal entity altogether and to organize the private sector of the entrepreneurship along with a significant growth in Indian Economy benefiting the country at a global level.

 

Sanchayeeta Das

Associate

 

ALTERNATE DISPUTE RESOLUTION

"I'm glad we settled ..."

 

In the recent years, Alternative Dispute Resolution (ADR) has received widespread popularity both in the general public as well as in the legal profession. As the name itself suggests, it is the alternate solution for dispute resolution. Whenever a dispute arises people generally rush to the court for settlement. But due to the rising cost of litigation, lengthy   procedures and undue delay it has become impractical to resort to traditional lawsuits. Civil Courts face backlogged dockets, resulting in delays of years. As a result, some Courts now encourage parties to resort to ADR before permitting the parties’ cases to be tried.

There are various methods used for ADR but Arbitration, Mediation & Conciliation are the widely used methods.

ARBITRATION:

It is a procedure where a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. This process can start only when there is a valid Arbitration Agreement between the parties prior to the emergence of the dispute. The Agreement must be in writing.

CONCILIATION:

It is another form of ADR where a conciliator appointed by the parties to a dispute, meets them separately and also together in an attempt to resolve their differences. This process is different from arbitration in a way that it has no legal standing and the conciliator usually has no authority to seek evidence or call witnesses. The conciliator usually writes no decision and no award is given by him.

In conciliation, the resolution of the dispute by the parties themselves is the essential point.

MEDIATION:

It is another effective way of resolving dispute without going to the Court. It involves a mediator which is an independent third party and helps both parties to come to an agreement. Mediation is also not binding on the parties. The mediator’s role is not to reach a decision, but it is to help the parties reach their own decision.

ADR has several advantages over litigation:

  • It is usually faster and less costly.
  • It is more flexible.
  • It is more informal.
  • ADR is more likely to preserve goodwill which is necessary especially in situations where there is a continuing relationship.

 

ADR involves methods which act as an alternative to litigation. But these methods do not replace litigation but it is an addition to litigation. Even the strongest supporters of ADR agree that matters should be resolved through Courts but there are other methods also which can be referred to before litigation which offers many advantages over the adversarial route.

 

Sanchayeeta Das

Associate

The Indian Lawyer