FORECLOSURE LAW

images

 

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

images

 

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

convert-opc

 

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

 

 

 

 

CHEQUE BOUNCING

Cheque-Bounce-Cases

 

STEPS TO BE CONSIDERED IN CASE OF CHEQUE BOUNCING

Cheque is a negotiable instrument drawn upon a specified banker expressed to be payable on demand. A cheque involves three parties, first, the drawer who is author of the cheque, second, the payee in whose favour, the cheque is drawn and third, the drawee or payer bank who is directed to pay the amount.

Cases of cheque bouncing are common these days. Sometimes cheques bearing large amounts remain unpaid and are returned by the bank on which they are drawn.

Cheque bouncing is a Criminal Offence, which is governed by the Negotiable Instrument Act, 1881 and punishable under the same up to two years or with monetary penalty or with both.

These conditions must be fulfilled before going to court to file a suit against the drawer in cheque bouncing cases according to section 138 of the Negotiable Instrument Act, 1881:

  • The cheque should have been drawn by the drawer on an account maintained by him.
  • The cheque is issued towards discharge of a debt or legal liability.
  • The cheque has to be presented to the bank within the six month from the date in which it is drawn or within the period of its validity.
  • When a Cheque is dishonoured, a notice has to be given in writing to the drawer of the cheque within the thirty days from the receipt of the information from the bank regarding the return of the cheque as unpaid.
  • That Notice should be sent by Registered post with acknowledgement receipt.
  • The drawer has to make the payment of the said amount of money to the payee within the fifteen days of the receipt of the said notice.
  • The complaint should be registered in a magistrate’s court within a month of the expiry of the notice period if no payment has been received within the fifteen days of the receipt of the said notice.

 

The following documents will be required in filing the suit:

  • Complaint,
  • Oath letter/Affidavit; and
  • Photocopy of all the documents such as cheque, memo, notice copy, and acknowledgement receipts.

 

If the payee fails to file the complaint within thirty days, the complaint becomes barred by limitation of time.  The jurisdictional magistrate court

may refuse to entertain such a belated complaint.  However, if the payee has sufficient reasons to justify delay in filing the complaint, he may make an application before the magistrate along with the complaint, to explain the reasons for delay and seek condoning of delay.  Cognizance of the complaint may be taken if the Court is satisfied that the payee had sufficient cause for not making the complaint within the prescribed period.

Cause of action arose on the date of receiving “Cheque Return Memo” from the bank. When a cheque is dishonoured the drawee bank immediately issues a ‘Cheque Return Memo’ to the banker of the payee mentioning the reason for non-payment. The payee’s banker then gives the dishonoured cheque and the memo to the payee.

If a notice is not given within 1 month after the cheque has bounced, then the check needs to be presented in the bank again and a notice can then be issued after the check bounces subject to the condition that it has to be submitted in the bank within its validity period (A cheque expires after six months).

Dishonour of a cheque due to stop payment is also covered under Section 138 of the NI Act.

Presentation of the cheque at the request of the drawer after the demand notice has been sent will and consequent dishonour of the cheque will not mean that the drawer’s time limit under the notice has increased.

A cheque issued as a gift/donation/any other obligation, will not be covered under Section 138 of the Act.

 

Parul

Senior Associate

The Indian Lawyer

 

COPYRIGHT

images (1)

 

Under the Copyright Act, Copyright means an exclusive right in case of the following acts:

in the case of a literary, dramatic or musical work, to do and authorise the doing of any of the following acts,   namely:-

  • to reproduce the work in any material form;
  • to publish the work;
  • to perform the work in public;
  • to produce, reproduce, perform or publish any translation of the work;
  • to communicate the work by radio-diffusion or to communicate to the public by a loud-speaker or any other similar instrument the radio-diffusion of the work;
  • to make any adaptation of the work;

 

in the case of an artistic work, to do or authorise the doing of any of the following acts, namely:-

  • to reproduce the work in any material form;
  • to publish the work;
  • to include the work in any cinematograph film;
  • to make any adaptation of the work;

 

in the case of a cinematograph film, to do or authorise the doing of any of the following acts, namely:-

  • to make a copy of the film;
  • to cause the film, in so far as it consists of visual images, to be seen in public and, in so far as it consists of sounds, to be heard in public;
  • to make any record embodying the recording in any part of the sound track associated with the film by utilising such sound track;
  • to communicate the film by radio-diffusion;

 

in the case of a record, to do or authorise the doing of any of the following acts by utilising the record, namely:-

  •  to make any other record embodying the same recording;
  •  to cause the recording embodied in the record to be heard in public;
  •  to communicate the recording embodied in the record by radio-diffusion.

 

A copyright exist only where the work is an original work. Hence, in order to claim copyright the creator must show that the work is an original creation.

In order to protect one’s copyright, it is imperative that such a work is registered with the Registrar of Copyright in order to assist the owner of the Copyright to prove his claim to the said work. The Register of Copyrights which is in the Copyright office is deemed to be prima facie evidence of the particulars entered therein and is admissible as evidence in all courts without further prove or production of the original.

When a copyright of the creator is infringed by a third party registration or pending application for registration will assist the owner in suing the third party for infringement.

In conclusion, we advice that a creator of any work should understand the importance of registering his/her copyright in order to enable the said owner to enjoy the fruits of his creation.

 

Sanchayeeta Das

Associate

The Indian Lawyer

FOOD ADULTERATION

download (5)

The Bread Scare – Should We Expose Ourselves to Cancer

In a recent report by the Centre for Science and Environment (CSE) released on Monday (23 May 2016) an alarming fact has come to the notice of the Public. The CSE says that nearly 84% of 38 commonly available brands of pre-packaged bread, including pav and buns, tested positive for potassium bromate and potassium iodate, which is banned in many countries as they are listed as “hazardous” for public health. Potassium bromate and potassium iodate are carcinogenic i.e. it can cause cancer.

The Central Government is set to ban use of potassium bromate as food additive in the next 15 days, following the CSE study that claimed presence of cancer-causing chemicals in bread. The move comes after the Food Safety and Standards Authority of India (FSSAI) recommended a ban on use of potassium bromate in the bread industry. “Potassium bromate is one of 11,000 food additives that are allowed in food business. After careful consideration, the FSSAI has decided to remove potassium bromate from the list of permissible additives,” FSSAI CEO Pawan Kumar Agarwal said.

This harsh reality, that bread-makers are exposing the common man to cancer is nothing short of a criminal act and the bread-makers should be held accountable and prosecuted for such a grave offence. The Indian law provides adequate measures of protection in several laws. However the bread-makers have thrown caution to the winds and only look at profit motive exposing the public to such a dangerous health hazard as cancer. It is believed potassium bromate and potassium iodate helps to preserve bread for a longer time hence it is being used in the production of bread and bakery products.

Under The Prevention of Food Adulteration Act, 1954 an article of food is deemed to be adulterated if the said food does not meet the nature, substance or quality as expected by the purchaser; or if the food contains any substance which affects the nature and quality of the food; or is a cheaper substance which is being substituted for the food; or if the food is deemed to be contaminated, or poisonous or is injurious to the health of the person consuming it. The provisions of the PFA Act mandate that the manufacturer of the food article is under a responsibility to ensure that the food manufactured meets the specifications and quality mentioned in the Act. The Food Health Authority has the power to take action against any manufacturer if they do not meet the standards set out in the PFA Act.

Under the PFA Act any person guilty of breaching of PFA Act and selling adulterated and sub-standard food article is liable to prosecution and fine. Punishment can range from one year to six years depending on the offence committed and in case of death of a consumer the manufacturer will be liable for imprisonment for life.

 

Parul

Senior Associate

The Indian Lawyer