Last Year Paper_s Solution

8/10/2019 Last Year Paper_s Solution

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Q1

Conciliation is an alternative dispute resolution (ADR) process whereby the parties to a dispute

(including future interest disputes) agree to utilize the services of a conciliator, who then meets with

the parties separately in an attempt to resolve their differences. Conciliation differs from arbitration

in that the conciliation process, in and of itself, has no legal standing, and the conciliator usually has

no authority to seek evidence or call witnesses, usually writes no decision, and makes no award.

Arbitration is an ADR (alternative dispute resolution) method where the disputing parties involved

present their disagreement to one arbitrator or a panel of private, independent and qualified third

party "arbitrators, whereas Conciliation is another dispute resolution process that involves building a

positive relationship between the parties of dispute, unlike arbitration, conciliation is a much less

adversarial proceeding; it seeks to identify a right that has been violated and searches to find the

optimal solution.

One is an offer the other is a response to it.

Cases

Arbitration example

Example 1: A kid ends up breaking his neighbours window with a baseball. The neighbour wants

compensation but doesn't want the kid to end up in criminal trouble. They go to an arbiter it is

decided that the kid will mow the neighbours lawn once a week at a rate of $10 per week until the

window is paid off.

Example 2: Workers of Bob's Marketplace feel like they don't get enough benefits. The union gets in

touch with the management of Bob's and the management agree to arbitration instead of risking a

long strike. In arbitration it is decided that if an employee works more than 30 hours/week they are

entitled to a better health care package.

Basically Arbitration is a relatively quick and painless alternative compared to long lawsuits, etc. The

two parties are brought together and an official, and neutral, Arbiter hears both sides and then

enacts legally binding requirements to one or both of the parties.

Conciliation Example:

This was a dispute based on the contract for construction of a new house in which an individual

applied for conciliation stating, "the accused party (contractor) should pay me (the applicant) 36

million JPY for repair and construction work delays due to defects in building construction and that

the applicant would like to make an additional request concerning the responsibility to let the

applicant build on a planned road." The accused party replied, "We built according to the contract

and agreements, and the problem of the planned road was explained by the person in charge."

This case was concluded through conciliation in which "the obligation of the accused party to pay 30

million JPY for this conciliation case was acknowledged."

Q2

There are two main types of contract which are in wide use when we speak about transportation of

goods by sea: a charter party contract and a bill of lading contract.

Speaking of bill of lading contract, however, one shall bear in mind that in some cases the bill of

lading can be no more than a receipt for goods loaded on board, in some it may serve as an evidence

to the charter party contract and, finally, it imposes contractual obligations for safe custody of the

cargo on the carrier before the person taking delivery of the goods.

Charter party, in its turn, is a contract concluded between the ship-owner and the charterer with the

purpose to employ an entire vessel or some principal part of her for a voyage or series of voyages or

for a period of time


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CASES

Caffin v Aldridge [1895]

Plaintiff shipped on the defendants ship an estimated quantity of 470 quarters of wheat,

The ship then proceeded to Portsmouth Dockyard, where she discharged the netting, and was

crossing the harbour to Gosport when by an accident arising from sea perils she sprang a leak,

whereby the wheat was damaged.The plaintiffs argued that on the terms of this charterparty the defendant was not entitled to take

on board any other shippers goods because the defendant contracted to load a "cargo" of the

plaintiffs wheat, where a "cargo imports a hiring of the full carrying capacity of the ship.

Court ruling favoured ship owners as The words "full and complete" which preceded the word

"cargo in the printed form had been struck out.

Leduc & Co v Ward (1888) 20 QBD 475

The plaintiffs purchased the goods which were to be shipped from the port of Fiume (now known as

Rijeka in Croatia) to Dunkirk.

The ship, instead of proceeding direct for Dunkirk, sailed for Glasgow (about 1200 miles out of the

ordinary course of the voyage), and was lost, with her cargo, off the mouth of the Clyde, by perils ofthe sea.

The plaintiffs brought an action against the ship-owners for non-delivery of the goods. The ship-

owners argued that there was no deviation because the evidence showed the shippers knew of and

agreed to the voyage being via Glasgow.

Ship owners were not held responsible as the Charter party did not specify the route of the voyage

and no restrictions on the route

Source:http://www.lawandsea.net

Q3Lifting of corporate veil- A legal concept that separates the personality of a corporation from the

personalities of its shareholders, and protects them from being personally liable for the company'sdebts and other obligations. This protection is not ironclad or impenetrable. Where a court

determines that a company's business was not conducted in accordance with the provisions of

corporate legislation (or that it was just a faade for illegal activities) it may hold the shareholders

personally liable for the company's obligations under the legal concept of lifting the corporate veil

There are two cases before the court which both concern confiscation orders. The same issue arises

in each case. It is, broadly, how should the court determine the value of the "benefit" obtained by an

offender who has been guilty of managing a company as a director in contravention of a director's

disqualification order or an undertaking not to act as a director? In each of these cases the Crown

Court judge concluded that the benefit obtained as a result of the criminal conduct by the personwho had contravened the disqualification order or undertaking was equal to the total turnover of

the relevant companies for the period of his contravention.

Case 1: X and MORNINGTON STAFFORD SEAGER

HHJ Browne QC (the judge) ruled, on 25 April 2008, that Mr Seager had benefited from his particular

criminal conduct in the sum of 1.5 million. The judge found that Mr Seager had been actively

participating in running a company despite the fact that he had given an undertaking to the court

not to do so without the further leave of the court. The judge determined the benefit obtained by

Mr Seager, for the purposes of section 6(4) of POCA 2002, "from the gross turnover and profits of

this company [in the relevant period]": ruling page 9 C-D. It was common ground before the judge

that the turnover of the company during the relevant period was 1.5 million. The judge held thatMr Seager had fewer means than that sum, so he assessed the realisable amount and thus the
http://www.lawandsea.net/http://www.lawandsea.net/


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amount of the confiscation order, under section 76(4) of the Proceeds of Crime Act 2002, ("POCA

2002"), at 356,249.20

Case 2: X and ENDON BARRY BLATCH

The applicant participated in the running of six associated companies despite a director's

disqualification order which forbade him from doing so. He seeks leave to appeal against theconfiscation order for 941,272 which was made by HHJ Cowling on 30 November 2007 pursuant to

section 71 of the Criminal Justice Act 1988 ("CJA 1988"). The judge found that the applicant had

benefited from his criminal conduct in that sum. The judge said that the correct measure of the

benefit obtained by the applicant was "the gross turnover of those companies during the relevant

period": ruling at 10F/G. The issue is whether that approach can now be regarded as sound in law.

We grant leave on the sole issue of how the appellant's "benefit" is to be assessed under section 71

of the CJA 1988, when the offender is a disqualified director of a company (or companies) in which

he has actively been concerned during the period of his disqualification.

Q4

The Articles of AssociationArticles of Association sets out the rules for the internal running of the company, governing the

rights and duties of the members of a company among themselves. Articles deal with internal

matters such as general meetings, appointment of directors, issue and transfer of shares, dividends,

accounts and audit

Is the constitution of the company in its relation to outside world;

Are the regulation which govern the internal affairs of the company;

Lays down among other things, the object of the company;

Provide the manner or mode in which the objects are to be carried out;

Is the fundamental document of the company;

Plays a part subsidiary to MOA;

Can be altered only in accordance with provisions of Companies Ordinance, 1984. Can be altered by special resolution at anytime but according to moa and Ordinance

Content and format

The articles should cover the following:

Liability of members

Directors' powers and responsibilities

Directors' meetings, voting, delegation to others and conflicts of interest

Retaining records of directors' decisions

Appointment and removal of directors

Shares, unless a limited by guarantee company

o issuing shares

o different share classeso share certificates

o share transfers

Dividends and other distributions to members

Members' decision making and attendance at general meetings

Means of communication

Use of the seal, if applicable

Directors' indemnity and insurance

Article of Association format:

1. Constitution of company

2. Interpretation

3. Capital4. Shares & Certificate


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5. Call on shares

6. Transfer & transmission of shares

7. Borrowing power

8. Share warrant

9. Share conversion

10. General meetings and proceedings11. Directors

12. Proceeding of Board of directors

13. Document & notices

14. Winding up

15. Indemnity & Responsibility

Cases 1

Allen v Gold Reefs of West Africa Ltd [1900] is a UK company law case concerning alteration of a

company's articles of association. It held that alterations could not be interfered with by the court

unless a change was made that was not bona fide for the benefit of the company as a whole. This

rule served as a marginal form of minority shareholder protection at common law, before theexistence of any unfair prejudice remedy.

Case 2

Articles of association generally contain what is called power of delegation.

Lakshmi Ratan Lal Cotton Mills v J.K. Jute Mills Co. explains the meaning and effect of a delegation

clause.

Here one G was director of the company. The company had managing agents of which also G was a

director. Articles authorized directors to borrow money and also empowered them to delegate this

power to any or more of them. G borrowed a sum of money from the plaintiffs. The company

refused to be bound by the loan on the ground that there was no resolution of the board delegatingthe powers to borrow to G. Yet the company was held bound by the loans.

Even supposing that there was no actual resolution authorizing G to enter into the transaction the

plaintiff could assume that a power which could have been delegated under the articles must have

been actually conferred. The actual delegation being a matter of internal management, the plaintiff

was not bound to enter into that.

Q5According to Section 2(d) of Consumer Protection Act, 1986, consumer means any person who

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly

promised, or under any system of deferred payment and includes any user of such goods other thanthe person who buys such goods for consideration paid or promised or partly paid or partly

promised, or under any system of deferred payment when such use is made with the approval of

such person, but does not include a person who obtains such goods for resale or for any commercial

purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid

and partly promised, or under any system of deferred payment and includes any beneficiary of such

services other than the person who hires or avails of the services for consideration paid or

promised, or partly paid and partly promised, or under any system of deferred payment, when such

services are availed of with the approval of the first mentioned person but does not include a person

who avails of such services for any commercial purposes;


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In short, a consumer is a person who buys or hires and goods or services for a consideration, i.e. free

services are not covered under the Act. Also most importantly, it excludes a person who buys or

hires for commercial purpose/activity and not for self-consumption.

CASE 1

Mercedes sells used car as new, imposed Rs 2 lakh fineOne of the worlds oldest and leading luxury car manufacturer, Mercedes Benz has been slapped a

fine of Rs 2 lakhs for selling a used demo car as new to a customer in Chennai.

According to the National Consumer Disputes Redressal Commission, Selling of used demo car

without the knowledge of the customer amounts to an unfair trade practice within the Consumer

Protection (CP) Act.

Justice R K Batta, NCDRC Bench said, Any false representation of rebuilt, second-hand, renovated,

reconditioned or old goods as new goods, for the purposes of promoting sale thereof, amounts to an

unfair trade practice and the victim deserves to be compensated.

CASE 2

Charity hospital death? Patient still a consumer, must get compensationA patient treated free of cost in a charity or other hospital will still be a consumer as per the

Consumer Protection Act if the person buys medicines from the nursing homes pharmacy, the

national consumer forum has ruled.

The National Consumer Disputes Redressal Commission gave the ruling while awarding a

compensation of Rs 11 lakh to the parents of a 16-year-old boy, who died due to medical negligence

committed by a hospital during his treatment.

CASE 3

Firm pays man 1.65 L for damaging articles

The Mumbai Suburban District Consumer Disputes Redressal Forum on Saturday ordered a transport

company to pay a Powai resident Rs 1.65 lakh compensation after his household articles wereseverely damaged in transit from Delhi to Mumbai in 2008.

The forum said that evidence offered by the complainant, Anuj Sethi, established that most of the

articles sent through Agarwal Movers and Packers were damaged.

Q6(1) VOID AND VOIDABLE CONTRACT

Void Contract

An agreement which was enforceable at the time of formation but later on due to certain event it

lost the enforceability, such agreement is known as void contract. For example, on 1st January Aagrees with B to sell his horse for Rs. 100 on 15th of January. The horse dies on 10th January. Now

the performance of contract on 15th January becomes impossible, hence this contract is void.

Voidable Contract

An agreement which is enforceable at the option of one of the parties thereto but not at the option

of the other, is a voidable contract. A Voidable Contract is defective contract and is enforceable at

the instance of the injured party by the defect. Agreements obtained by fraud or coercion are

Voidable Contracts. For Example, A induces B by giving false description to purchase certain

goods. B on discovering misrepresention can repudiate the contract or can elect to carry on the

contract.


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Difference between Void and Voidable Contract

1. Void agreements are void ab initlo and voidable contract becomes void when the party on whose

option the contract is voidable, chooses to repudiate it.

2. In void agreement restitution is allowed except when illegality or voidness of the agreement was

in the knowledge of both the contracting parties. In voidable contract when they are rescinded,

benefits will be restored as much as possible.

3. Collateral transactions are not effected in case of voidable contracts, the same is in case of void

agreement also. But where the agreement is void because of the illegality of the consideration or

object, the collateral transaction will also become void.

Voidable contract example

Sixteen year old Larry Bowling (P) purchased a used car from Sperry (D) for $140. Bowling attempted

to return the car to Sperry after discovering that the main bearing was defective and was informed

that repairs would cost $45-$95. P left the car with D and mailed a letter disaffirming the contract. P

sued D for the return of his money and the trial court entered judgment for D on the grounds that

the contract was not voidable, because Ps aunt and grandmother accompanied P when he

purchased the car and gave him the money to purchase it. P appealed.

Issue:Is a purchase contract by a minor voidable despite the participation of an adult in the

transaction?

Holding and Rule:Yes. A purchase contract by a minor is voidable despite the participation of anadult in the transaction.

The court held that the participation of Ps aunt and grandmother in the transaction did not change

the rule that contracts by a minor regarding personal property are voidable.

The evidence showed that the sale was made between P and D and not one of the adults. D was fully

aware of Ps age when the sale was negotiated and P had every right to disaffirm the sale. D had the

burden to show that the car was a necessity and D did not meet that burden.

Q7

Contracts with Minor under contract actCase 1:A minor produces false documents and enters into a contract. The contract has resulted in

losses and the minor denied to pay his part stating that he is a minor. The other party cannot file any

legal proceedings on him despite the minor performing forgery.

Case 2:A minor has a share in a business. The minor enjoyed all the profits when running the

business successfully and suddenly the business runs into losses. The minor is not liable to the losses

that are incurred.

Q8INDEMNITY: It is a contract by which one party promises to save the other from loss caused to him

by the conduct of the promisor himself or by the conduct of any other person. It is made in order to

protect the promisee against anticipated loss. There are only two parties involved i.e. the person


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who promises to make good the loss generally known as the indemnifier (promisor) and the person

whose loss is to be made good called as the indemnified (promisee).

GUARANTEE: It is a contract to perform the promise or discharge the liability of a third person in

case of his default. It is made to enable a person to get a loan or goods on credit or an employment.

There are three parties involved i.e. the person who gives the guarantee known as the surety, the

person in respect of whose default the guarantee is given known as the principal debtor and theperson to whom the guarantee is given known as the creditor.

1. Difference in Meaning:-

Contract of indemnity: In the contract of indemnity one person promises to save the other from any

loss.

Contract of guarantee: In the contract of guarantee one person gives guarantee for the performance

of the contract.

2. Difference in the Number of Parties:-

Contract of indemnity: Under the contract of indemnity there are two parties.

Contract of guarantee: Under the contract of guarantee there are three parties.

3. Difference in the Liability:-Contract of indemnity: Under indemnity contract the basic liability falls on the indemnifies.

Contract of guarantee: In case of guarantee contract surety has the secondary liability.

4. Difference in the Number of Contracts:-

Contract of indemnity: Under the indemnity contract there is one contract only.

Contract of guarantee: Under the contract of guarantee there must be at least three contracts.

5. Difference in the Nature of Interest:-

Contract of indemnity: In case of indemnity contract, indemnifies has the interest in earning

commission and premium.

Contract of guarantee: In case of guarantor he has no any other interest except guarantee.

6. Difference in the Right of Claim:-

Contract of indemnity: The indemnifies cannot sue the third party.Contract of guarantee: Guarantor is entitled to proceed against the principal debtor in his own

name. If he has paid the debt.

7. Difference in the Performance of Contract:-

Contract of indemnity: Contract of indemnity depends upon the possibility of risk or loss.

Contract of guarantee: In case of guarantee there is an existing debt or duty performance about

which guarantee is given.

Case 1:

GC v. SBI Overseas Branch, Bombay

FACTS

ONGC had awarded a large gas pipeline contract to an Italian consortium S at a certain contract price(CP). The work was to be executed within a given date else S was liable to pay certain percentage of

C.P. S was also obliged to furnish a bank guarantee (BG) not later than 4 months prior to the

scheduled completion date. Failure in this regard entitled ONGC to encash the performance

guarantee. In case of delay, S was to get validity of BG extended. In any dispute the jurisdiction was

that of India. S furnished BG from the respondent Bank (B). Project got delayed and dispute arose

regarding the extension of validity. ONGC invoked BG but B refused payment on these grounds:

1. B had issued BG in favour of ONGC against the counter guarantee of an Italian Bank (I)[4]

and S had obtained an order of injunction from I from making any payment to B under the

counter guarantee.

2. Rupee payment under BG can be made only on receipt of re-imbursement from I in an

approved manner.[5]

3. The matter being subjudice, ONGC should wait until the issue is resolved.


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HELD:

High Court (Bombay):

The Court granted unconditional leave to defend the suit on the following terms

1. While invoking BG, the amount of liquidated damage was not stated.

2. As per BG, a clear notice of demand towards liquidated damage was to be given;

3. The notice of invocation was not a legal notice to communicate the liquidated damages4. Arbitration proceedings pending; Italian Court also seized of the matter.

SUPREME COURT:

Issues

1. Whether a confirmed bank guarantee can be interfered by the court?

2. Whether encashment of unconditional bank guarantee depends on adjudication of

disputes?

3. What effect the counter guarantee will have in this case?

Contention (ONGC): None of the grounds stated by the HC provided any basis for granting an

unconditional leave to defend.

CASE: 2State of Madhya Pradesh v. Kaluram

FACTS

At an auction for sale of felled trees, Jagatram (J) was awarded the sale, on payment of a security

and subsequent payment of installments. He executed a contract in favour of the Governor of M.P.

which specified, (among other terms), that the contractor had to furnish a coupe boundary

certificate which concerned the area from which contractor was allowed to take away the trees.

Nathuram and Kaluram (K), the defendants, stood sureties for J. J removed the entire quantity of the

trees, paid the first installment but failed to pay the rest. State of M.P(S) claimed for recovery. K filed

an action against the S claiming that he was not liable to pay the arrears of forest dues recoverable

from J.

CONTENTIONS:Kaluram

1. The forest authorities gave time to J and didnt take any steps as part of their duty

towards the surety i.e. did not seize and sell the trees of J as soon as the second instalment

had fallen due. Because of the inaction on the part of S, his eventual remedy against J was

impaired and therefore he stood discharged as surety.

2. Since, the creditor S had lost or had parted with the security without the consent of the

surety, the latter is, discharged to the extent of the value of the security lost or parted with

under S.141 of ICA.

State

1. The property in the goods had not passed to J till they were removed, and on that account

s. 83 of the Forest Act[2] did not attach to the goods sold, has therefore no force.2. Mere inaction on the part of the forest authorities does not amount to parting with the

security.

HELD:

Trial Court: Accepted Ks contentions and decreed in his favour.

High Court (MP): Confirmed the decree of the Trial Court

Q9Agency:

Laws regarding the agency are contained in Chapter 10 of Indian Contract act, 1872.


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Definition: It is a relation between two parties, an agent and a principal, both of which may be either

an individual or an entity. Agency is a contractual relation between two parties, created by

agreement, express authority or implied authority.

An authority is said to be express when it is given by words spoken or written. An authority is said

to be impliedwhen it is to be inferred from the circumstancesof the case.

Creation of agency:

1. By express authority

2. By implied authority

A. By estoppel

B. By holding out

C. By necessity

3. By ratification

4. By operation of law

Agency by estoppel:Here, agency is implied from the conduct of the parties, though no express

authority has been given.

Agency by holding out:When a person permits another by a long course of conduct, to pledge his

(principals) credit for certain purposes. Agent is bound by the act of such person in pledging his

credit for similar purposes.

Agency by ratification:An approval is received for a previous unauthorized act/acts relating to a

contract.

Q10Patentable:

A new product or process, involving an inventive step and capable of being made or used in an

industry. It means the invention to be patentable should be technical in nature and should meet the

following criteria -

i) Novelty : The matter disclosed in the specification is not published in India or elsewhere before the

date of filing of the patent application in India.

ii) Inventive Step: The invention is not obvious to a person skilled in the art in the light of the prior

publication/knowledge/ document.

iii) Industrially applicable: Invention should possess utility, so that it can be made or used in an

industry.

Non-patentable:The following are Non-Patentable inventions within the meaning of the Act: -

(a) an invention which is frivolous or which claims anything obviously contrary to well established

natural laws;

(b) an invention the primary or intended use or commercial exploitation of which could be contrary

to public order or morality or which causes serious prejudice to human, animal or plant life or health

or to the environment;

(c) the mere discovery of a scientific principle or the formulation of an abstract theory (or discovery

of any living thing or non-living substances occurring in nature);

(d) the mere discovery of a new form of a known substance which does not result in the

enhancement of the known efficacy of that substance or the mere discovery of any new property ormere new use for a known substance or of the mere use of a known process, machine or apparatus


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unless such known process results in a new product or employs at least one new reactant ;

Explanation- For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure

form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of

known substance shall be considered to be the same substance, unless they differ significantly in

properties with regard to efficacy.

(e) a substance obtained by a mere admixture resulting only in the aggregation of the properties ofthe components thereof or a process for producing such substance;

(f) the mere arrangement or re-arrangement or duplication of known devices each functioning

independently of one another in a known way;

(g) a method of agriculture or horticulture;

(h) any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other

treatment of human beings or any process for a similar treatment of animals to render them free of

disease or to increase their economic value or that of their products.

(i) plants and animals in whole or any part thereof other than micro-organisms but including seeds,

varieties and species and essentially biological processes for production or propagation of plants and

animals;(j) a mathematical or business method or a computer programme per se or algorithms;

(k) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including

cinematographic works and television productions;

(I) a mere scheme or rule or method of performing mental act or method of playing game;

(m) a presentation of information; (n) topography of integrated circuits;

(o) an invention which in effect, is traditional knowledge or which is an aggregation or duplication

of known properties of traditionally known component or components.

(p) Inventions relating to atomic energy and the inventions prejudicial to the interest of security of

India.

CASES

Tennesee Eastman v. Commissioner of Patents

Tennessee Eastman sought a patent for a surgical method for bonding a wound together by

applying certain glues.The glues themselves were not new. The new discovery was that the

glues could be used in place of stitches to close wounds.

The Commissioner of Patents refused to grant the patent on the ground that the claimed

method was not the kind of discovery which fell within the definition of invention in the

Patent Act. In particular, it was not an art becauseit was useful only in the process of

surgical treatment and produced no result in relation to trade, commerce or industry.

Tennessee Eastman appealed to the Exchequer Court. The issue there was whether this use

of glue fell within the meaning of new and useful art or process within the meaning of

the Patent Act. The Exchequer Court held that it did not for the reasons given by the

Commissioner of Patents.

A method that is essentially non-economic and unrelated to trade, industry, or commerce,

and instead relates to an area of professional skills, is unpatentable.

Case 2: Bajaj Auto Vs. TVS Motor Co.

An improved Internal Combustion Engine working on four stroke principle,having two valves per

cylinderfor efficient burning of lean air fuel mixture used in engines where the diameter of cylinder

bore ranges between 45 mm and 70 mmcharacterized in that said Internal Combustion Enginecomprises a pair of spark plugs
http://en.wikipedia.org/wiki/Tennessee_Eastmanhttp://en.wikipedia.org/wiki/Tennessee_Eastmanhttp://en.wikipedia.org/wiki/Tennessee_Eastmanhttp://en.wikipedia.org/wiki/Tennessee_Eastman


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Bajaj filed a patent application for DTS-i technology on July 16,2002 in the Indian Patent

Office

It also filed a PCT application for exclusive rights in other countries on October 30,2003

The patent was granted on July 7,2005

Revocation petition filed by TVS seeking cancellation of patent granted to Bajaj. Injunction on TVS

for manufacture of Flame

A division bench of Madras High Court comprising Justice S J Mukhopadyay and Justice F M

Ibrahim Kalifulla revoked the injunction

TVS was allowed to manufacture Flame as the bench felt that there was a difference

between the technologies of the two competitors

Combustion process in TVSs engine was not exclusively based on twin spark

technology but on the three valve technology patented by AVL GmBH, Austria which

had been licensed to TVS

The court opined that simply because Bajaj had a patent on the twin spark technology, did

not mean that it had a prima facie case of infringement against TVS especially when the

validity of its own patent was in question

In revoking the injunction order the court disregarded the existence of irreparable loss and

the question of balance of convenience

Q11Absolute Grounds for Refusal:

According to the Trademarks Act, a trademark can only be registered if it is distinctive in natureand

to a certain extent unique. An invented word can also be registered as long as is not descriptive.

There is a provision in the Act which deals with well-known trademarks wherein a trademark which

has become so popular that the people immediately associate the product with the mark, then such

a mark can be registered. The Act also provides that the mark should nota. cause confusion,

b. be devoid of distinction

c. marks which consists exclusively of marks or indications which have become customary in

the current language or in the bona fide and established practices of the trade

d. hurt religious sentiments,

e. should not be obscene

f. marks which are protected under the Emblems and Names (Prevention of Improper Use)

Act, 1950.

g. A mark shall not be registered as a trade mark if it consists exclusively of -

(a) the shape of goods which results from the nature of the goods themselves; or

(b) the shape of goods which is necessary to obtain a technical result; or(c) the shape which gives substantial value to the goods.

Relative Grounds for Refusal:

Section 11 deals with the relative grounds for refusal of registration. The absolute grounds of refusal

prevent registration prima facie, whereas relative grounds for refusal deal with the mark in

connection to other marks.

Section 11 provides that a mark can be refused because of its identity and association with an earlier

trademark or its similarity to an earlier trademark. This helps in reducing the confusion in the public

who would assume the newly registered mark is somehow connected to the previous trademark. It

also provides that objections can be raised in case of any similarity between the earlier marks.


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However, an applicant can register such trademark if the proprietor of the earlier mark has given his

approval.

It is the duty of the Registrar to protect a well known trademark against the identical or similar trade

marks.

CasesApplicant Respondent Dispute Order

ITC Ltdhree-N-Products

Pvt Ltd

Rectification application by ITC against

certain trade mark registrations on the

name Ayur

Rectification application allowed

(Order in June, 2013)

Britannia

Industries

Limited

PepsiCo Inc

Appeal against Deputy Registrar of

rade Marks refusing registration of

trade mark Snax

Appeal dismissed, upholding

decision of Deputy Registrar (Order

in August, 2013)

Q12

Copy right act of 1957 covers

Artistic work

Musical work

Sound recording

Cinematograph film

Government work

Exemptions from copy right act

A fair dealing with a literary, dramatic, musical or artistic work for the purpose of privateuse, research, review or criticism.

Reproduction of work for the purpose of state or functioning of law, for example judicial

proceedings.

Case 1:Nagoti venkatramana v. State of Andra Pradesh

Case Statement:with the liability of persons dealing in pirated videos, Video City a shop owned by

Nagoti had several pirated videos, the police prosecuted him under Section 52A(2)

Judgement:the government added a new section which read no person shall publish a video film

unless the following

Requires a certificate under the provisions of Cinematography act 1952

Name and address of the person who has made the video film with necessary license.

Ruled in the favour of State of Andra Pradesh

Case 2: R.G. Anand v. Delux Film

Case Statement:A play written by Anand by the name of Hum Hindustani was copied as a motion

picture by Mohan Sehgal by the name New Delhi

Judgement:Supreme Court ruled in the favour of Delux Film and gave the statement


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An Idea, principle, theme or subject matter or historical or legendary facts being common property,

cannot be the matter of copyright of a particular person and told the difference between the play

and film were major.

Q13UNPAID SELLER:

Seller who has not been paid (either in the whole or partial)

One who has received payment in the form of bill of exchange or other negotiable

instrument which has been dishonored

Rights of an Unpaid Seller:

When property of goods passed to buyer

Right of Lien

Right of Stoppage in Transit

Right of Resale

When property of goods not passed to buyer Right of Withholding Delivery

Other Rights

CASE:

Ram Saran Das Raja Ram And Anr. vs Lala Ram Chander

The plaintiff Ram Chander, proprietor of Jindal Oil Mills, Delhi-Shahdra, pleaded in thecomplaint that

on 3-5-1954, the defendants Raja Ram was entered into a contract of purchase of one tank wagon

(about 500 maunds) of mustard oil at Rs. 61 per maund F. O. R. Delhi-Shahdra (Bilti cut) with a

condition of 1/2 per cent leakage. The tank was to be dispatched to Kirkand, the place of business of

the defendants. The plaintiff dispatched one tank wagon weighing 505 maunds of mustard oil in

accordance with this contract from Delhi Shahdra to Kirkend. The R/R was sent to the defendantsthrough the Punjab National Bank Ltd., Delhi-Shahdra and the plaintiff drew a hundi for Rs. 30500 on

the defendants on account of price of the oil dispatched. The defendants, repudiating the contract,

wrongfully refused to honour the hundi and to receive the R/R from the Bank and to take delivery of

the oil.

The plaintiff had in consequence to arrange to take delivery of the oil at Kirkend and disposed it of

there at the cost, risk and responsibility of the defendants after giving them due notice. The plaintiff

could only realize Rs 25,186 by the resale of the said oil after adjusting the R/R, Bank charges, sale

commission and to her expenses incidental to the sale of the said oil. Thus there was a loss of

Rupees 5,500. The plaintiff had also to pay Bank charges for the dishonoured hundi and to send his

man to Kirkend to arrange for taking delivery of the said oil and to supervise its sale which entailed

expenses amounting to Rs. 1000. Adding to it a sum of Rs. 2600 on account of interest with effectfrom 1-7-1954 up to the date of the suit at 9 per cent per amount according to the marker rate, the

total amount claimed was calculated to Rs 9100.

Jurisdiction of the Court below was upheld by an interlocutory order on the preliminary issue which

was affirmed by the High Court on revision.

JUDGEMENT: All the issues having been decided in favor of the plaintiff, this suit was decreed for Rs.

9,434

Q14

Paying Banker:The Banker who is under obligation to pay customers cheques and drafts

OR, Bank on which a cheque or draft is drawn

Duties:


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Obligations to honour the cheques: subject to, the customer must have sufficient

funds in the account; the funds should be free from any lien; the cheque should fulfil

all the legal requirements, etc.

Obligation to maintain secrecy of account: except under certain circumstances like,

the law demands the disclosure of the account information; the customer gives

consent for such disclosure; disclosure of account information is necessary in thepublic interest, etc.

Collect cheques & drafts on behalf of the customer

To act according to the directions given by the customer and in the absence of such

directions according to the usage prevailing at the place where the banker conducts

his business and applicable to the matter in hand.

Bound to use reasonable skill and diligence in his work.

Must keep accurate records of all the transactions of the customer.Statutory

Protection to a Paying Banker

Sec 85(1): Cheques payable to order in due course

Sec 85(2): Bearer cheque: payment in due courseCases:

1. MAHENDR S. DADIA VS. STATE OF MAHARASHTRA I (1999) BANKING CASES (BC) 133

(17/03/1998)

Petitioner 1: Owner of partnership firm

Respondent 2: Creditor to the firm

Dr. H.C Mody had demanded repayment of loan by the end of March, 1996.

Petitioner 6(the firm): promised to issue cheques in favour of Respondent 2

towards the payment of the loan on 1st April, 1996.

A no. of cheques were issued & sent in 1st week of April 1996

It was requested by the petitioners that since Petitioner 6 was facing financialdifficulty the said cheques should not be deposited in the Bank Account till the end

of August, 1996.

Petitioner 1 had also promised to pay further interest on the amount of cheques

separately for the period from 1-4-96 to 31-8-96

On presentation of the said cheques by Respondent 2, the same were dishonoured

and returned unpaid with the remarks "payment stopped by the drawer

Respondent 2: Issued compliant under Section 138 of Negotiable Instruments Act,

1881

Verdict & Rationale:

Once the cheque has been drawn and issued to the payee and the payee has presented thecheque, stop payment instructions will amount to dishonour of cheque

2. MSR Leathers Vs. S. Palaniappan and Anr. (MANU/SC/0797/2012)

Respondent handed a cheque for payment of loan

Cheque was returned for insufficient funds in the account.

Appellant sent a notice calling for payment of the said amount

The respondent approached appellant for some more time to pay the amount

In view of this, the Appellant did not initiate any further proceedings but as

respondent did not keep promise complaint was filed under Section 138 of NI Act,

1881


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Respondent challenged it on the grounds that a cheque could only be presented

once and the underlying principle was that a single instrument cannot lead to

multiple causes of action.

Verdict & Rationale:

Entire purpose of Section 138 of the Negotiable Instruments Act is to compel the

drawers to honour their commitments

There is no reason why a person who has issued a cheque which is dishonoured and

who fails to make payment despite statutory notice served upon him should be

immune to prosecution simply because the holder of the cheque has not rushed to

the court with a complaint based on such default or simply because the drawer has

made the holder defer prosecution promising to make arrangements for funds or for

any other similar reason.

No real or qualitative difference between a case where default is committed and

prosecution immediately launched and another where the prosecution is deferred

till the cheque presented again gets dishonoured for the second or successive time.

Q15

Negotiable instruments actcriminal proceedings for dishonour of cheque

Terminologies : 1. Drawer One who writes the chque 2. Holder One who is the intended

beneficiary, Agar maine chque likha to pay avis sean, I am the Drawer and Sean is the Holder. Now

you can understand the law better.

Negotiable instruments act 1881 (ref as NIA hereafter) makes dishonor of cheques a criminal

offence. Sec 138 of this act provides the two reasons for dishonor :1. Sign does not match

2. Insufficient funds

When does the criminal liability arise?

The Holder presents the cheque to the bank and the cheque is stamped as Dishonoured cheque

(called the return memo) by the bank on the basis of unavailability of funds in the account. Then the

holder has to produce a notice to the drawer notifying that the cheque has been dishonoured (called

bounced colloquially), The holder has to produce this notice within 30 days of receipt of return

memo by the bank. If on reciept of such a notice the drawer of the cheque fails to make payment

within further 15 dayshe is liable to criminal procedure which includes on conviction 2 years

imprisonment or payment of twice the amount on cheque to the holder or both. For this liability to

fructify the holder has to complain against the drawer within 1 month. This is where amendments

come into picture:

1) Earlier if the holder fails to raise a complaint within one month of the cause of action arising

(matlab 15 din ka non payment ke baad) there would be no fresh cause of action upon a

subsequent dishonour of the cheque.

2) This got amended in MSR Leathers v. S. Palanipan where it was held that the holder of the

cheque does not have an obligation to initiate prosecution against the drawer. Every

subsequent presentment of the cheque and dishonour would give rise to a fresh cause of

actionfor the holder of the cheque. The decision to not initiate prosecution against the

drawer of the cheque is often due to the assurance of the drawer that given some time, the


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Resale price maintainence

Restriction on output or supply of goods

Control of manufacturing process

Boycott

Price control agreements

Residual restrictive trade practicesUnfair Trade Practice

A trade practice which for the purpose of promoting the sale, use or supply of any goods or for the

provision of services adopts any unfair or deceptive practice.

Types:

False Respresentation

Misleading advertisements

False suggestion that services are part of standard upgrade

False Offer of Bargain Price

Free Gifts Offer and Prize Schemes

Offering

Non-COmpliance of Prescribed Standards

Hoarding, Destruction, etc

Procedure to complaint for unfair practices under MRTP

Powers of MRTP Commission

Powers of a civil court under the code of Civil Procedure 1908 including

summoning witnesses


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discovering documents

requisition of public documents related to the case

withholding evidence documents etc

Competition Law

Competition Act 2002 to prevent the abuse of dominance by business entities at the same time

allowing a healthy competition. Governs mergers & acquisition & amalgamations of certain size and

called for the establishment of Competition Commission of India.

Prohibition on Anti Competitive Agreements

Prohibition on Abuse of Dominant Position

Regulation of Combinations

Competition Commission of India

Q17Insolvency act

Case 1: If a person transfers all his property with an intention to defeat is creditors. The creditor can

then file a case against the person according to insolvency act

Case 2: In 2008, Dr Pankaj Gandhi (59), a homeopath, had moved the HC to be declared an insolvent

as he was unable to pay his debts of Rs 47 lakh. Sanghvi claimed that Dr Gandhi owed him over Rs 20

lakh and is seeking the execution of a 10-year-old decree. Pankaj Gandhi is filed as an insolvent on

issuing a bouncing check to Dr. Gandhi

Q18Principle of insurance

1. Insurable Interest

The interest should not be a mere sentimental right or interest, for example, love &

affection alone cannot constitute insurable interest.

It should be a right in property or a right arising out of a contract in relation to the property.

The interest must be pecuniary, that is, capable of estimation in terms of money. --In other

words, the peril must be such that its happening may bring upon the insured an actual or

deemed pecuniary loss. Mere disadvantage or inconvenience or mental distress cannot be

regarded as an insurable interest.

The interest must be lawful, that is, it should not be illegal, unlawful, and immoral or

opposed to public policy.

Example

A takes out a policy on the life of his wife B and subsequently even if they are divorced still the policy

continues to be valid.

On other hand, if A takes out a policy on the life of B whom he proposes to marry or who has been

divorced by him, the policy is not valid for want of insurable interest at the commencement of therisk, that is, at the time when the contract is made.


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2. Utmost Good faith/ Uberrima fides

A contract of insurance is a contract based upon the utmost good faith, and, if the utmost good faith

be not observed by either party, the contract may be avoided by the other party.

The person getting insured must willingly disclose and surrender to the insurer his complete true

information regarding the subject matter of insurance. The insurer's liability gets void (i.e legally

revoked or cancelled) if any facts, about the subject matter of insurance are either omitted, hidden,

falsified or presented in a wrong manner by the insured.

Example

LIC v. G.M.CHannabsemma, AIR 1991 SC 392

In a landmark decision the SC has held that the onus of provingthat the policy holder has failed to

disclose information on material facts lies on the corporation.

In this case the assured who suffered from tuberculosis and died a few months after the taking of

the policy, the court observed that it is well settled that a contract of insurance is contract

uberrimae fides, but the burden of proving that the insured had made false representation or

suppressed the material facts is undoubtedly on the corporation.

3. Principle of Contribution

Principle of Contribution applies to all contracts of indemnity, if the insured has taken out more than

one policy on the same subject matter. According to this principle, the insured can claim the

compensation only to the extent of actual loss either from all insurers or from any one insurer. If one

insurer pays full compensation then that insurer can claim proportionate claim from the other

insurers.

Example

Mr. John insures his property worth $ 100,000 with two insurers "AIG Ltd." for $ 90,000 and

"MetLife Ltd." for $ 60,000. John's actual property destroyed is worth $ 60,000, then Mr. John can

claim the full loss of $ 60,000 either from AIG Ltd. or MetLife Ltd., or he can claim $ 36,000 from AIG

Ltd. and $ 24,000 from Metlife Ltd.

So, if the insured claims full amount of compensation from one insurer then he cannot claim the

same compensation from other insurer and make a profit. Secondly, if one insurance company pays

the full compensation then it can recover the proportionate contribution from the other insurance

company.

Q19Conditions and warranty are said to be implied when law presumes their existence in the contract

even without their actually having been put in the contract.

Implied Conditions

Condition as to title [Sec. 14 (a)].

Condition in a sale by description [Sec. 15].

Condition in a sale by sample [Sec.17].

Condition in a sale by sample as well as by description [Sec.15].

Condition as to fitness or quality [Sec.16(1)]. Condition as to merchantability [Sec.16(2)].


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Condition as to wholesomeness.

Implied Warranty

Warranty of quiet possession [Sec.14(b)].

Warranty of freedom from encumbrances [Sec.14(c)].

Warranty of disclosing the dangerous nature of goods to the ignorant buyer.

Case 1:Agricultural Market Committee v. Shalimar Chemical Works Ltd (1997)

Facts:Shalimar Chemical Works Ltd was buying dried coconut kernel from places in Kerala and

committee can levy market fee on all transactions if taken place within the notified area of

committee. Committee imposed market fee on the company contending that goods were sold in

Hyderabad while other party said that sale was done in Kerala.

Judgment: No market fee can be levied.

Reason: By the terms of contract between the parties, seller will not be liable for any future loss of

goods after getting loaded on lorry in Kerala and buyer had obtained insurance of goods and had

paid the policy premium. Payment of price at Hyderabad was immaterial.

Case 2:Hoogly Municipality vs Spence Ltd Date of Judgment: 18 July, 1977Facts:Hoogly Municipality contracted with Spence Ltd to buy a tractor on the condition that if the

municipality was not satisfied it would reject the tractor. The municipality took possession of the

tractor and after using it for a month and a half it rejected it. The suit was filed upon the

unwillingness of the tractor company to accept it.

Judgment: Appeal dismissed

Reason: The municipality had not only used the tractor but also a reasonable time had elapsed.

Hence the property in the tractor had already passed to the municipality and, therefore, could not

reject it.

Q20.

"Public authority" means any authority or body or institution of self- government established or

constituted

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;b

(d) by notification issued or order made by the appropriate Government, and includes

any

(i) Body owned, controlled or substantially financed;

(ii) non-Government organization substantially financed, directly or indirectly

by funds provided by the appropriate Government;RTI

Adarsh Society Scam:The applications filed by RTI activists like Yogacharya Anandji and Simpreet

Singh in 2008 were instrumental in bringing to light links between politicians and military officials,

among others. The 31-storey building, which had permission for six floors only, was originally meant

to house war widows and veterans. Instead, the flats went to several politicians, bureaucrats and

their relatives. The scandal has already led to the resignation of Ashok Chavan, the former chief

minister of Maharashtra. Other state officials are also under the scanner.

IIMs Admission Criteria: Vaishnavi Kasturi a visually-impaired student, in 2007 was denied a seat in

the Indian Institute of Management in Bangalore, one of the countrys premier management

institutesdespite her impressive score at the entrance examination. Ms. Kasturi wanted to knowwhy, and wondered whether it was because of her physical disability. She filed an RTI application to


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request the institute to disclose their selection process. Although she failed to gain admission to the

institute, her RTI application meant that IIM had to make its admission criteria public. It emerged

that the entrance exam, the Common Admission Test, actually mattered little compared to Class 10

and 12 results

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THE END

Last Year Paper_s Solution

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