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

 

 

 

 

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

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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

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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

FREEDOM OF SPEECH

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“Everyone is entitled to his own opinion, but not to his own facts.” –  Daniel Patrick Moynihan

Common understanding of freedom of speech is that we are free to say anything we want, as long as our speech does not interrupt upon the ‘fundamental freedoms’ of others. The idea is that one’s freedom of speech must not cause ‘harm’ to others.

Freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India has been regarded as the second most important right after the right to life of a citizen. However, it is not an absolute right, there are restrictions specified under Article 19(2) of the Constitution of India. Rights come hand in hand with responsibilities.

According to Article 19(2) of the Indian Constitution, the legislature is empowered to impose certain restrictions on free speech under the following heads:

  • Security of the State
  • Friendly Relations with Foreign States
  • Public Order
  • Decency and Morality
  • Contempt of Court
  • Defamation
  • Incitement to an Offence, and
  • Sovereignty and Integrity of India

If one takes a closer look at these imposed restrictions, it becomes clear how often this very ‘Freedom of Speech’ is subject to misuse.

In recent times, it appears to be the most misused right in India, especially on the internet. If one spends more than two minutes on the Internet, one will probably come across trolling, bullying, insincere but deliberately hurtful comments and other things that no one would say on another person’s face.

Freedom of speech on the internet is scaling new heights every day with complete disregard for the restrictions specified under Article 19(2). People post their views the moment they come across a statement. Mostly, it either gets a thumbs up or sarcastic criticism.

With the explosion of social media, internet trolling is becoming a big challenge, especially for women users on social media. In recent times, there is a growing voice against this online harassment especially faced by women in power, whether it’s celebrities, journalists or politicians. Men are also subjected to online abuse and hate speech, they are generally attacked on professional grounds whereas women have to tolerate personal attacks, including references to their bodies and sexual as well as actual threats of violence, particularly sexual violence.

While there have been growing voices to set up a mechanism to control online trolling, government officials believe, it is not possible to regulate or check online abuse and trolling as jurisdictions are territorial. While they do acknowledge the role social media has played as an instrument of promoting freedom of expression as well as empower people, some officials believe that if growing misuse of social media channels does not come down, the medium may burn itself out and lose credibility.

To be sure, freedom of speech does not mean the other side has an obligation to listen. But it also does not mean that the other side can be shouted down. Indeed, someone will say something that you consider obscene, tasteless, offensive or insulting to something or someone you value.

 The Indian law provides for prosecution as well as damages for misuse of freedom of speech. Hence people who take pleasure in bringing disrepute to others should caution themselves as the law can be stringent and punitive.

In conclusion, freedom of speech must always be accompanied by restrained in order not to cause damage or bring disrepute to others.

 

Parul

Senior Associate

The Indian Lawyer

IDENTITY THEFT

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YOUR IDENTITY GOES EVERYWHERE

(Start Protecting Your Identity Today)

“But he that filches from me my good name/Robs me of that which not enriches him/And makes me poor indeed.” – Shakespeare, Othello.

Identity Theft (ID Theft) is the deliberate use of someone else’s identity, usually as a method to gain a financial advantage or obtain credit and other benefits in the other person’s name and to the other person’s disadvantage or loss.

ID Theft is used to refer to the fraud of impersonating someone else to steal money or get other benefits. The person whose identity is used can suffer various consequences when he/she is held responsible for the perpetrator’s actions. Examples include fraudulently obtaining credit card details, stealing money from bank accounts, establishing accounts with utility companies, renting an apartment or even filing bankruptcy using the victim’s name. The cyber impersonator can steal unlimited funds in the victim’s name without the victim even knowing about it for months, sometimes even for years.

Cases of identity theft fall under three broad categories: hacking social media accounts, stealing credit and ATM card details, and stealing employee data.

PREVENTION IS THE KEY:

  • Memorise passwords don’t keep it noted anywhere.
  • Never give any of the personal information to anybody.
  • Get credit cards and business cards with the picture of the owner on them.
  • Do not put the credit card account number on the Internet (unless it is encrypted on a secured site.) Don’t put account numbers on the outside of envelopes, or on the cheques.
  • Monitor all the bank statements from every credit card every month. Check to see if there is anything that one does not recognize and call the bank to verify that the genuineness of the cash transaction.
  • Order the credit report at least twice a year. Review it carefully. If there is anything that appears fraudulent, immediately put a fraud-alert to the bank and contact the police.
  • Don’t carry your birth certificate or passport, unless necessary.
  • Cancel all credit cards that do not use or have not used in 6 months. Thieves use these very easily – open credit is a prime target.
  • Delete all information on a computer before selling, giving away, or disposing it off. While it may not be practical consider destroying the hard drive. If not practical, consider deleting or destroying the information contained on the drive.
  • Be careful at ATM’s and using Phone Cards. “Shoulder Surfers” can get your “Pin Number” and get access to another person’s account.
  • Use virus protection software always and make sure it’s updated regularly. Most AV (anti-virus) packages have an option to retrieve updates on a regular basis.

If you are a victim of identity theft immediately block the card. Give details of amount debited. Get a reference number.

A victim of Identity theft can file a complaint for online fraud and approach the Cyber Cell. For other fraud, lodge a complaint with nearest police station but before that you must collect evidence against the impersonator and then file a complaint attaching all the details.

Identity theft is a criminal offence and punishable under Information Technology Act. The punishment is imprisonment for 3 years and fine up to Rs. 1 lakh.

 

Parul

Senior Associate

 

 

 

IMPORTANCE OF A LAWYER

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WHY IS A LAWYER IMPORTANT?

(Prevention is better than cure)

A lawyer is qualified to give a legal advice and assistance to clients and represent them in court or in other legal matters.

From signing a contract to buying a house, every phase is affected by the legal system. Thus, lawyers hold huge accountability in maintaining and adhering to a strict code of ethics.

A lawyer may specialize in different areas like intellectual property, environment law, bankruptcy, aviation, etc. They represent you in Court, business transactions and other legal proceedings wherein the law would be discussed. They act like a “repairman”, and fix what is broken on behalf of the Client.

Every legal matter does not require the use of an attorney. However, in many situations involving a legal dispute, one may not wish to take the risks of going through it alone without the advice of an experienced lawyer who can help out. In fact, while good legal representation may not be cheap, it can help in getting out of a number of sticky situations – such as a bad divorce, lost job, including broken agreements, lost claims, or worse, jail time.

While each person’s legal situation is different, a lawyer is required for the following reasons:

The law is complex:

The law is complicated in nature. In some situations even experienced     lawyers cannot represent themselves in court. Failing to hire a lawyer when starting a business, reviewing a contract or other situations with potential legal action can result in avoidable pitfalls.

Having a lawyer can save money:

A civil case could hurt financially in the long run while a criminal case may compel a person to spend time behind bars. Hence, hiring a lawyer at the right time and acting upon his/her advice can actually save money.

Lawyers know how to challenge (and sometimes suppress) evidence:

 A common man may not even know that a key piece of evidence is important for his case and can help him in winning the case. Only a qualified lawyer would be the correct person to assess the evidentiary value of documents that may be in the possession of a prospective litigant.

Attorneys understand how to properly file court documents and handle other legal procedures:

If you’re not an attorney, you may struggle with the deadlines and protocol for properly filling out and filing certain legal documents. One late or incorrect filing could delay your case or have the case thrown out altogether.

Prevention is better than cure:

Hiring a lawyer in many instances can help one avoid potential legal headaches down the road.  A lay man may not understand the terms of the contract that he has to sign and may end up signing a contract that would be counterproductive in the long run. Hence, engaging a lawyer can help to prevent future problems.

 

Sanchayeeta Das

Associate

The Indian Lawyer