Job Description and Roles / responsibilities

  • Developing and implementing an effective legal compliance program
  • Collaborate with departments to direct on Legal & risk areas
  • Good networking ability and social skills including the ability to handle internal and external contacts, including Government authorities and regulators
  • Draft and solidify agreements, contracts and other legal documents to ensure the company’s full legal rights
  • Evaluate new business partnerships with vendors and subcontractors
  • Protect the company against legal risks and violations
  • Advising senior management/HOD’s on various matters such as legal rights, and new and existing laws
  • Provide clarification on legal language or specifications to everyone in the organization
  • Dealing/Conducting legal research and reviewing company’s litigation strategy pertaining to legal action
  • Examining and reporting any potential or existing legal issues to the Compliance Head/Senior management
  • Ensuring all business processes, strategies, and actions comply with all relevant local, state, federal, and international law
  • Liaising with outside counsel regarding their assignments
  • Creating new entities and managing organization’s intellectual property as required
  • Handling statutory filings, such as licensing forms etc.
  • Researching and understanding changes in legislation, and how they would affect the business and maintain current knowledge of alterations in legislation

Relevant Experience

  • 5- 8 years in Legal department or Practitioner
  • Fluent in English, second language desirable
  • Excellent communication skills both verbally and in writing
  • High degree of professional ethics and integrity
  • Excellent knowledge and understanding of corporate law and procedures
  • Experience in antitrust, competition, data privacy, AML or trade compliance is a plus

Educational qualifications

·       Bachelor or Master’s in law 

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About Credgenics

Credgenics is India’s first-of-its-kind NPA resolution platform backed by credible investors including Accel Partners and Titan Capital. We work with financial institutions, Banks, NBFCs & Digital lending firms to improve their collections efficiency using technology, automation intelligence and optimal legal routes in order to facilitate the resolution of stressed assets.

With all major banks and NBFCs as our clients, our SaaS based collections platform helps them efficiently improve their NPA, geographic reach and customer experience.

Job Role

Credgenics is looking for an enterprising lawyer to become a core member of our legal team. The Legal Associate will advise and support in the review, negotiation, and closure of contracts.

Responsibilities

  • Drafting of contracts and other legal documents
  • Coordination with the cross-functional team members for onboarding Banks and NBFCs
  • Ensuring compliance with applicable regulations and statutory requirements
  • Processing the legal documents for review and auditing
  • Research on matters related to applicable laws

Requirements

  • Bachelor’s degree in Law from an accredited University
  • 3-5 years of professional experience as an in-house Legal Counsel in a Law firm or a Corporate Law environment
  • Good interpersonal skills and negotiation skills
  • Strong knowledge of contract drafting, review and negotiation

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About Kanooniyat:

Kanooniyat is a legal website providing daily legal updates to its user base, comprising law students, law aspirants, lawyers and legal professionals, in the form of articles, opportunities and legal jobs.

About Kanooniyat Case Commentary Writing Competition:

This case commentary writing competition by Kanooniyat aims to promote inquisitiveness and a desire to better understand prominent judgements, amongst the participants. For the evaluation process, due emphasis will be laid on a candidate’s analysis of the judgement, encompassing understanding of facts of the case, creative approach, reasoning, research, and formatting and language used.

The media partner for this event is LawInternships (The online law school). They provide law students with a plethora of opportunities to intern according to one’s interest and aptitude. 

The event is being conducted in collaboration with the Chambers of Advocate Jayant Bhatt. He is an erudite advocate who holds a dual Masters of Law from New York University and National University of Singapore. He is a member of the Supreme Court Bar Association and Delhi High Court Bar Association and deals with matters pertaining to criminal law, commercial litigation, dispute resolution etc. Advocate Bhatt, in addition to being a prolific writer, orator and mentor, is also a pioneer in the field of spreading legal awareness amongst the masses through his YouTube channel Sue You Soon.   

Cases for the Competition:

We welcome submissions from eligible students on the following cases (any one):

1.     Lt Col. Nitisha v. Union of India: 2021 SCC OnLine SC 261

2.     In Re: Distribution of Essential Supplies and Services During Pandemic: 2021 SCC OnLine SC 339

3.     Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965

4.     In Re: Problems and Miseries of Migrant Labourers: 2020) 7 SCC 181

5.     Public Interest Foundation and Ors. Vs. Union of India: (2019) 3 SCC 224

Eligibility for Kanooniyat Case Commentary Writing Competition:

  • We look forward to participation from students (UG/ PG/Certifications/ Diploma) from any stream from any University/ College/ Institute in India.
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  • Winner: Rs. 2000 + Certificate of Merit
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  • The case commentary must be written solely by the registered candidate (s) (co-authorship upto two is allowed), in English, and should not have been submitted for publication elsewhere.
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Evaluation Criteria and Weightage:

1. Understanding of facts of the case (30 marks)

2. Analysis of the judgement (30 marks)

3. Lucidity and writing skills (25 marks)

4. References/citations used and formatting (15 marks)

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  1. All the case commentaries submitted shall be the exclusive property of the organizers.
  2. The organizers shall be free to use the information/ views therein in any manner they require and deem fit.
  3. The decision of organizers in deciding the winner(s) shall be final and binding and no query, correspondence, etc. in this regard shall be entertained by the organizers.

Note:

  1. Case commentary submissions incompatible with the above rules and submission guidelines will not be considered for evaluation.
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  3. Kanooniyat reserves the right to cancel the event at any point before the conduct of the event. In such a case, any fee paid as registration fee shall be refunded in full to the registered participants.

Registration and Submission Procedure:

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The participants are required to register for Kanooniyat’s case commentary writing competition by paying the registration fee of Rs. 200 (single author) or Rs. 350 (co-authors), through the payment link provided, before the registration deadline, i.e., 28th July, 2021.

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Important Dates:

EventDate
Last date to register31 July 2021
Last date to submit8 August 2021
Declaration of Results15 August 2021
Distribution of Awards and Certificates18 August 2021

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What is Fascism?

Fascism is a political ideology that is characterized by dictatorial power and authoritarianism. It includes far-right tendencies such as suppression of opposition, rule of Paramilitary forces, and authoritarian ultra-nationalism. It came into prominence in early 20th century Europe and dominated the Continent between 1919 and 1945. Although fascist parties and movements have always differed significantly, a typical repertoire could be associated with them that included contempt for electoral democracy and political and cultural liberalism. This ideology is often bent towards creating a ‘pure’ state or Volksgemeinschaft, which in German means “people’s community.” The subordination of individual interests for the betterment of the nation is what fascists believe in. While understanding the previous statement, we must remember that according to the fascist ideology, one’s nationality is in their blood. If one is a descendant from foreign soil, they cannot be termed a true national of the given country. This leads to the subjugation of interests of such people in a fascist regime. Newspaper reports, online blogs, and various other secondary sources suggest that countries such as Brazil, China, India, Russia, and Japan are staging clear signs of fascism through their policies or utterances

The first fascist leader of Europe was Mussolini. Various fascist parties came into power in several countries, including two of the most famous of all time – The National Fascist Party in Italy led by Mussolini and the National Socialist German Workers’ Party (Nationalsozialistische Deutsche Arbeiterpartei), or Nazi Party, led by Adolf Hitler. 

Other similar parties which came up around the globe including:

  • The Fatherland Front (Vaterländische Front) in Austria, led by Engelbert Dollfuss and supported by the Heimwehr (Home Defense Force), a prominent right-wing paramilitary organization; 
  • the National Union (União Nacional) in Portugal, led by António de Oliveira Salazar (which became fascist after 1936); 
  • The Party of Free Believers (Elefterofronoi) in Greece, led by Ioannis Metaxas; 
  • The Ustaša (“Insurgence”) in Croatia, led by Ante Pavelić; 
  • The National Union (Nasjonal Samling) in Norway, which was in power for only a week—though its leader, Vidkun Quisling, was later made minister-president under the German occupation; 
  • The military dictatorship of Admiral Tojo Hideki in Japan.

After the Second World War, the major European fascist countries were broken up and were also officially banned from some countries such as Italy and Germany. Despite this, Fascist movements re-emerged in Europe, as well as Latin America and South Africa.

Repertoire of Fascist Movements

There has been a constant debate between political scientists and historians about the true nature of fascism, and as a result, there is a varied range of opinions regarding this. Laurence W. Britt, after detailed research into some of the infamous fascist regimes of Hitler’s Nazi Germany; Mussolini’s Italy; Franco’s Spain; Salazar’s Portugal; Papadopoulos’ Greece; Pinochet’s Chile; Suharto’s Indonesia, came up with thirteen signs of early Fascism listed as under:

  1. Powerful and Continuing Nationalism
  2. Disdain For Human Rights 
  3. Identification of Enemies As a unifying cause 
  4. Supremacy of the military 
  5. Rampant Sexism 
  6. Controlled Mass Media 
  7. Obsession With National Security
  8.  Religion and Government Intertwined
  9.  Corporate Power Protected
  10.  Labor Power Suppressed
  11.  Disdain For Intellectuals & and the Arts 
  12. Obsession With Crime & Punishment 
  13. Rampant Cronyism & Corruption
  14.  Fraudulent Elections

The list mentioned above is non-conclusive but lists down the most prominent similarities between the fascist regimes of all time. Some scholars view that fascism is deeply irrational and constructed on lines of misdirected anger and frustration towards a class of people and merely serves the material interests of its supporters. In contrast, others are deeply impressed by the fascist rationale and regard its aspirations of a cultural ‘regeneration’ and creating a ‘new man’ as principled. Critiques believe that it is the fear of the communist revolution and left-centrist electoral victories that make fascism shape into the form of an authoritarian state as opposed to a liberal one. The fascist hatred for Marxism is not inconspicuous rather openly voiced. We can take the example of Hitler sending Marxists to concentration camps and threatening ‘red neighborhoods’ with police brutality.   

The Concept of Neo-Fascism or Post-Fascism 

Historians and political scientists have pointed out that there has been a rebirth of the conditions that prevailed in Europe in the period between World War I and World War II in some European countries in the 1980s and 1990s. France, Germany, and Italy were among the top countries to be considered in this list.  High unemployment rates, increased conflicts based on ethnic differences, and continuous economic setbacks were significant catalysts in giving rise to fascism in its many national guises. As mentioned above, all of the conditions, coupled with the geopolitical weakness of national regimes, promoted the growth of neo-fascism as a new fascist or post-fascist movement. Intense nationalism has always been a part of fascism, and hence the parties constituting the post-fascist movements are not parties spread throughout Europe but country-specific. Except for a difference in nationality, there are several common traits that can be attributed to them.

Post-Fascism in India

Trends suggest the world’s largest democracy is shifting its status from a democratic state to an autocratic one. In 2019, during her maiden speech to the Parliament, MP Mahua Moitra pointed out seven signs of early fascism exhibited by India. A significant shift from the ideals of liberal democracy to a far right-wing ideology can be witnessed in the politics pan-India. The central authorities are busy promoting ‘Hindutva’ as a prime concept parallel to ‘Indian Nationalism.’ Organizations like the Rashtriya Swayamsevak Sangh (RSS) continue to gain a stronger footing at the cost of curbing fundamental rights a resident of a democratic state must enjoy. It has been labeled as a fascist organization by political intellectuals worldwide. The Sangh Parivar, RSS associates, and BJP under the leadership of Prime Minister Narendra Modi contribute significantly to the fascist tag. 

In the present circumstance, the independent functioning of the Judiciary is of utmost importance to protect the liberty of the citizens. Unfortunately, the reality is the exact opposite. Benjamin Zachariah, the author of critically acclaimed books such as Developing India (2005), Playing the Nation Game (2011), and After Last Post (2019), in an interview, said that the judiciary does not remain independent anymore, neither is the Police. The parliamentary majority is being used to pass laws in contradiction with the Constitution, and some armed forces personnel even appear to support the ruling party. 

Legislations such as the Citizenship Amendment Act, 2019 (CAA) passed by the Centre reflect the xenophobic manifesto of the party. Continuous violations of Human rights, portraying religious minorities as enemies, and the vision of creating a Hindu Rashtra are just a tiny percentage of the feat pointing towards fascist ideologies seeping through the democratic fabric of the Indian National state. Freedom House had published a report reducing India’s status from a ‘free democratic state’ to ‘partly free.’ It stated in the same statement that civil and political rights had seen a severe deterioration in this country through intimidation of journalists, undue pressure on human rights organizations, and a line of attacks, especially against Muslims.

Fascism Around The Globe – The Present Scenario

“Brazil, Romania, Hungary, China, India, Philippines, Russia, Australia, Turkey, Poland, and few other countries are showing fascist tendencies, through their policies, utterances and while dealing with their citizens, intellectuals and world leaders and their citizens.” In the light of this statement and after going through numerous articles containing similar assertions, we can conclude that post-fascism is present in some form or the other across the globe.

Taking the example of Brazil under Jair Bolsonaro’s administration, I believe that it fits the neo-fascism paradigm. The first administrative step he took after being elected was signing up for the removal of all measures that guaranteed the rights of LGBTQ+ groups from the Brazilian Domestic human rights policy. His government further allowed a parliamentary measure (MP 180) that allowed monitoring of non-governmental organizations. The President himself has contributed to anti-human rights rhetoric by defending abuse of force by the Police or curbing the rights of individuals’ fallen prey to crimes committed by the military dictatorship. One can draw a parallel between the behaviors exhibited by Brazil in recent times with previous similar cases of Turkey, Israel, and Hungary, where the rising domestic authoritarianism left a mark on their foreign policy as well.

The Covid-19 pandemic has proved fruitful for the world’s authoritarian powers as they have been able to pass ordinances and regulations disguised as emergency regulations to contain the deadly virus. Such is the condition of Hungary. In the ordinary course, these legislations would be considered as a dangerous expansion of state power. Prime Minister Victor Orban has passed a rule prohibiting anyone from criticizing the Hungarian government. This stands as a grave violation of the democratic rights of the citizens. However, the government has affirmed that the emergency legislation will not last a day longer than the pandemic. But no one can comment anything with complete surety as to over-rule the emergency legislations one-third majority of the Parliament is required, an advantage enjoyed by Orban. Hungary is a solo member of the EU, labeled as ‘partly free’ by the think tank Freedom House.

Putin’s Russia has also been termed as a fascist country in recent times. Russia under Putin’s rule has been compared with that of Mussolini’s Italy or Hitler’s Germany. When Andrei Zubov was fired from the Moscow State Institute of International Relations for opposing Putin’s Ukraine policies in 2015, for opposing Putin’s Ukraine policies, he commented that Putin is trying to build a “corporate state of a fascist type packaged in Soviet ideology, the ideology of Stalinism,” Russian critics while analyzing the fascist regimes came up with some characteristics to which Putin and his Russia fit perfectly. Starting from a charismatic leader appealing to most of the population, imperialist projects, and mass mobilization of the youth or even a cult of violence – all these characters can be assigned to Russia under Putin’s Regime.

“Philippine President Rodrigo Duterte Is a Wildly Popular Fascist” was the title of an article published by The Nation shortly after he assumed his presidency in 2016. The reason was the evident signs of neo-fascism put up by him. Before he even assumed his term, extra-judicial killings of thousands of drug users had already been started. The reason was Duterte’s vision of a state free of drug abuse. His main target is the most prevalent form of governance in recent times – Liberal democracy. He has been considered a ‘father figure,’ an ultimate savior who will save the Philippines from chaos. This justifies his popularity even after his complete disregard for fundamental human rights. Duterte has been regarded as one original kind of fascist personality with very few traits common to famous fascists such as Mussolini or Hitler. His ideals are not bent towards restoring bygone days but to establish an authoritarian future. His growth can also be credited to the non-existence of solid and organized opposition. 

CONCLUSION

According to recent trends, countries around the Globe are slowly turning into authoritarian regimes, which pose a significant threat to the free liberties humankind must enjoy. Fascism manifests itself in diverse ways in different civilizations, thus individuals who expect it to manifest itself in the “traditional” fashion are often surprised when it does. This leads to leaders disregarding human rights and moral values to fulfill their selfish political agendas. With this, we can indeed say Fascism is extant in some form or the other all around the globe. The good news is that now as then, democracy must win.

REFERENCES

  1. https://caravanmagazine.in/news/politicians-from-australia-uk-attend-roundtable-whether-india-is-becoming-fascist-state
  2. https://www.thenation.com/article/archive/philippine-president-rodrigo-duterte-is-a-wildly-popular-fascist/
  3. https://www.thefreedictionary.com/post-fascist
  4. https://www.opendemocracy.net/en/article_306jsp/
  5. https://www.britannica.com/topic/fascism/Common-characteristics-of-fascist-movements

This article is written byDebasmita Nandi, a first year law student of CHRIST (DEEMED TO BE UNIVERSITY), LAVASA

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INTRODUCTION

This article focuses on the brief analysis of the case Shyam Sunder and Others v. The State Of Rajasthan. 

Equivalent Citation

  • 1974 AIR 890
  • 1974 SCR (3) 549
  • 1974 SCC (1) 690

Bench

  • K. K. Mathew (J.)
  • Alagiriswami (J.)

Author of the Judgement

  • K. K. Mathew (J.)

Decided on

  • 12 March, 1974

Relevant Act / Maxim / Article

  • Fatal Accident Act, 1855
  • Maxim – res ipsa loquitur (the thing speaks for itself) – the principle that the mere occurrence of some types of accident is sufficient to imply negligence.
  • Article – 300 of the Constitution of India – Tortious liability of state

Brief Facts

Navneetlal, a resident of Udaipur working as a Store Keeper in the Public Works Department, of the State of Rajasthan, boarded on a truck at Bhilwara along with six others and proceeded to Banswara for famine relief works undertaken by the department. Throughout the journey, the radiator of the truck was getting heated frequently and the driver was pouring water into it every 6 or 7 miles of the journey. The truck took nine hours to travel the distance of seventy miles. After having traveled four miles from Pratapgarh, the engine of the truck caught fire. As soon as the driver saw the fire, he cautioned the occupants to jump out of the truck. Consequently, Navneetlal and the other persons jumped off the truck. While doing so, Navneetlal struck against a stone lying by the side of the road and died instantaneously.

Parvati Devi, widow of Navneetlal brought a suit against the State of Rajasthan for damages under the provisions of the Act. The plaintiff alleged that it was on account of the negligence of the driver that the truck which was not road worthy was put on the road and that it caught fire which led to the death of her husband and that the State was liable for the negligence of its employees in the course of his employment. The plaintiff also alleged that the deceased had left behind him his widow namely, the plaintiff, two minor sons, one minor daughter and his parents. The plaintiff claimed damages to the tune of Rs.20,000/- and prayed for a decree for that amount. The state contended that there was no negligence on the part of the driver as the truck was quite in order when it started and if it developed some mechanical trouble suddenly causing fire, the driver cannot be held liable.

Procedural History

  • The case was taken by the Trial Court which relied on the maxim res ipsa loquitur and found that the driver was negligent in putting the truck on the road as the truck was not road-worthy and since the driver was negligent, it held that the State was vicariously liable for his act. The court assessed the damages at Rs.14,760/- and granted a decree for the amount to the plaintiff. 
  • The State then appealed to the High Court against the decision of Trial Court. Where it held that there was no evidence on record by the plaintiff to prove negligence on part of the driver, the mere fact that the truck caught fire does not prove that the driver was negligent and that the principle of res ipsa loquitur had no application to the facts of the case. 
  • It was also argued on behalf of the defendant that the state was engaged in a function appertaining to its character as sovereign and the driver was acting in the course of his employment in connection with the famine relief work and therefore, even if the driver was negligent, the state would not be liable for damages.

Issues Before the Court

  • Whether the fact that the truck caught fire is evidence of negligence on the part of the driver in the course of his employment?
  • Whether the famine relief work undertaken by the Public Work Department of State of Rajasthan can be categorized as a sovereign function?

Ratio of the Case

  • The doctrine of res ipsa loquitur is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the defendant. The mere fact that the cause of the accident is unknown to the plaintiff does not prevent him from recovering the damages. Sometimes, the fact that the accident occurred, constitutes evidence of negligence and under such circumstances the doctrine of res ipsa loquitur becomes applicable.
  • The maxim does not embody any rule of substantive law nor the rule of evidence. The maxim is only a convenient label to apply to a set of circumstances in which the plaintiff merely proves a result, not any particular act or omission producing the result. If the result in the circumstances in which he proves, makes it more probable than not that it was caused by the negligence of the defendant, the doctrine of res ipsa loquitur is said to be applicable, and the plaintiff will be entitled to succeed unless the defendant by evidence shows that either he took all reasonable precautions to avoid the injury or that the particular cause of injury was not associated with negligence on his part.
  • The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the cause of the accident and the defendant responsible for it, even when the facts bearing on the matter are at the outset unknown to him and often within the knowledge of the defendant.
  • Thus the fact that the defendant is as much at a loss to explain the accident or himself died in it, does not preclude an adverse inference against him if the odds otherwise point to his negligence. The mere happening of the accident may be more consistent with the negligence on the part of the defendant than with other causes. The maxim is based on common sense and its purpose is to do justice when the facts bearing on the causation and on the care exercised by defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant.

Decision

  • The Supreme Court held that the District Judge correctly held the driver liable for negligence in putting a vehicle, not road-worthy on the road which consequently caught fire. From the evidence it was clear that the radiator was getting heated frequently and that the driver was pouring water in the radiator after every 6 or 7 miles of the journey. And the fact that normally a motor vehicle would not catch fire if its mechanism is in order indicates that there was some defect in it. The vehicle was under management of the driver and it was found on the basis of the evidence of the witnesses that he knew about this defective condition of the truck when he started from Bhilwara. There was no evidence as to how the truck caught fire and there was no explanation by the defendant about it. It was a matter within the exclusive knowledge of the defendant. It was not possible for the plaintiff to give any evidence as to the cause of the accident. Hence, the Supreme Court concluded that the maxim res ipsa loquitur was applicable.
  • With reference to sovereign immunity the Supreme Court held that the famine relief work could not be considered as the sovereign function of the State as it has been traditionally understood. It is a work which can be and is being undertaken by private individuals. There is nothing peculiar about it, that the State alone can exclusively undertake this work. 
  • On the aforementioned grounds the Supreme Court set aside the decree of the High Court, restored the judgment passed by the District Judge and allow the appeal with costs.

This case analysis has been written by SAHEBA SHAMS, 1st year student pursuing BA-LL.B from Osmania University, Hyderabad. 

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Citation

(2020) 9 SCC 1

Decided On

11 August 2020

Case Number

Civil Appeal No. 32601 of 2018

Bench

Bench: Arun Mishra, S. Abdul Nazeer, M.R. Shah J.J.

Relevant Section

Section 6 of Hindu Succession (Amendment) Act, 2005

Facts

The case is of joint Hindu family and coparcenary rights of the daughters. Section 6 of the Hindu Succession Act after the amendment of 2005 (enacted on 9th Nov 2005) conferred full coparcenary rights to the daughters as same as that of sons. But, section 6(1)(a)) of the Act conferred coparcenary rights on daughters by birth. Questions aroused that will a daughter born before 2005 will get the coparcenary rights or not, whether the father and daughter both need to be alive on 9 November 2005 to effectuate the provisions of the amended section of the Act or not.

These questions were answered in the case Prakash v. Phulavati. A division bench of the Hon’ble Supreme Court of India in thus case, held that the Act of 2005 is prospective in nature and that the privileges conferred on daughters under Section 6 of the Act of 2005 are for the living daughter of a living coparcener, with the coparcener having to be alive as of 9th September 2005, in order for the daughter to assert ownership of the coparcenary property. In this case, the coparcener died before the 2005 amendment, so the daughter was not entitled to a share of the coparcenary property because she was not the daughter of a living coparcener.

While in the case Supreme Court of India did not expressly address the notion of a living daughter of a living coparcener, in a subsequent judgment of Danamma v. Amar. The coparcener Gurunalingapa (father) died in the year 2001 leaving behind him two daughters, two sons, and a widow. Coparcener’s heir was not alive when the amended provision of section 6 of the Act came into force. Even though the coparcener had died before the amendment of 2005, the Court held that daughters have equal rights in the coparcenary property as of sons. The appeal of Vineeta Sharma v. Rakesh Sharma posed similar question before the Hon’ble Supreme Court, and the matter was referred to a larger three judge bench of the Hon’ble Supreme Court based on the contradictory opinions expressed by the Hon’ble Supreme Court in the above mentioned two decisions of Phulavati case and Danamma. The judgement of Vineeta Sharma was not in alignment with the other abovementioned judgments therefore a contradiction in law arose.

Both the earlier judgements were passed by a divisional bench constituting of two judges. Therefore, in the Vineeta sharma case a three judge constitutional bench of Supreme Court was constituted to resolve the issues and provide the correct interpretation of section 6 of the amended Hindu Succession Act, 2005. 

Issue before the Court

  • Whether father coparcener should still be alive on November 9, 2005 (when the amendment was brought)?
  • Whether Section 6 of the Act of 2005 modified, prospective, retrospective, or retroactive?

Judgment

Supreme Court’s Bench in this case referred to various principles of Hindu law, both codified & customary such as Coparcenary & Joint Hindu Family, unobstructed & obstructed heritage as well as a catena of Judgments. The Court after examining these things observed joint Hindu family property as unobstructed heritage. In this kind of property the right of partition is absolute & it is given to a person by virtue of his/her birth. However, a separate property is obstructed heritage in which the right to ownership & partition is obstructed by death of the owner of separate property. In obstructed heritage right is not by the birth but it depends upon the death of original owner. Supreme Court by observing these situations held as the right to partition is by birth of daughter (unobstructed heritage) it is immaterial if father coparcener was alive or dead on the date when the amendment was enacted. Therefore, the Court overruled the judgment of Phulavati v. Prakash & said that the coparcenary rights passes from the father to his living daughter not from a “living coparcener to living daughter”. 

By overruling the Phulavati & Danamma Judgment the Court ruled that the effect of the provisions of Section 6 of the Act are neither prospective nor they are retrospective in nature although, it is retroactive in nature. Hon’ble Supreme Court explained the principles of prospective, retrospective & retroactive by saying that application of retroactive law is dependent on feature or occurrence that occurred in part or requisites that were drawn from a past event. Court stated that Section 6(1)(a) of the Act incorporates the definition of Mitakshara coparcenary’s unobstructed heritage (conferred by birth), since the right is conferred by birth it is an antecedent case, the provision apply on & from the date of enactment of the Amendment Act thus, making it retroactive. Court added that the clause of 4 of Section 6 clarifies that Section 6 provisions are not retrospective. This approach by the Court cleared the lacuna in law. 

Conclusion

The verdict of Vineeta Sharma has cleared the uncertainty about the law & made it clear that the amendment of the Hindu Succession Act, granting equal right to inherit the ancestral property to daughters would have a retrospective effect. Court also perceived that gender cannot be the ground for denying anyone with their inheritance rights as it is a violation of Article 14 i.e. equality before law. This verdict has successfully resolved all the ambiguity that the Phulavati and Danamma case created.

This article is written by Ajay Kataria, from Dr. B.R. Ambedkar National Law University, Sonepat, Haryana.

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Case Number

Revision Petition 156 of 2020 Against the Order dated 14/08/2019 in Appeal No. 1242/2016 of the State Commission Karnataka

Case Citation

2020 SCC OnLine NCDRC 8

Bench

V.K. Jain in the New Delhi Bench of the National Consumer Disputes Redressal Commission

Decided On

5 February 2020

Relevant Sections

Consumer Protection Act, 2019- Sections 2(10), 2(11), 2(21) and 2(42)

  1. Section 2(10): Defines defect as any fault, imperfection or shortcoming in the quality of the goods.
  2. Section 2(11): Defines deficiency as any fault, imperfection or shortcoming in the quality of the services.
  3. Section 2(21): Defines goods as moveable property of every kind. This definition expressly includes food in the definition of goods.
  4. Section 2(42):  Defines services of all kinds which are provided to their users, but excludes personal services and services rendered free of charge.

Facts of the Case

The complainant had ordered some food in the petitioner’s restaurant for a sum of Rs. 382/- on 23.12.2014. The food was served in an unhygienic way and was giving off a foul smell. Upon consuming the food, the complainant-respondent felt like vomiting. After consulting a doctor, he was diagnosed with food poisoning. He filed a consumer complaint against the restaurant. The district forum awarded him with a compensation of Rs. 10,000, cost of litigation Rs. 4,000 and also the cost of the food. The same decision was upheld by the State Commission. 

The petitioners submitted that the onus was wrongly placed upon them and that they would be satisfied if the Commission observes that the onus for proving any defect in the food shall lie upon the customer who has visited the restaurant. 

The Ratio of the Court

The New Delhi Bench of the National Consumer Disputes Redressal Commission presided by V.K. Jain observed that the burden of proving defective food cannot be so high that an ordinary consumer who is visiting a restaurant to eat cannot realistically discharge it. The judge was of the opinion that once a consumer files an affidavit in the consumer complaint stating that the food which was served to him was defective, the initial onus of proving that the food was defective is discharged by virtue of that affidavit. This is, of course, unless it has been shown that the complaint was made due to external factors. 

The judge stated that it is realistically impossible for the consumer of defective foods to collect the defective food and send it to the laboratory for testing. This is due to the fact that when such a complaint has been made by the consumer with regards to the food, he will not be allowed to carry the food. If a consumer does, however, somehow send the food to a laboratory and the results are affirmative of the food being defective, the restaurant can always claim that the food has become stale due to improper packing and handling.

The decision of the Court

The New Delhi Bench of the National Consumer Disputes Redressal Commission presided by V.K. Jain held that the initial onus of defective food being served is discharged by the affidavit filed by the complainant along with the medical certificate provided by the doctor who diagnosed him with food poisoning. 

The author is Om Gupta, a first-year law student pursuing BBA-LLB from the University School of Law and Legal Studies.

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Case Number:

CA 1903

Equivalent Citation:

[1903] 1 K.B. 81

Bench:

Collins, M.R. and Methew, J. 

Decided on:

19 November 1902

Relevant Act:

The Partnership Act 1890

Brief Facts and Procedural History:

In this case the defendant company is a partnership company with two partners, Mr Houston and Mr Strong, who represented the company. Mr Houston took care of the functioning of the company and Mr Strong was a sleeping partner. Mr Houston, acting within the scope of his authority, bribed the clerk of the plaintiff’s company and induced him to commit a breach of contract with the plaintiff as a result of which the clerk divulged some of the secret, important information of the plaintiff’s company. This act of Mr Houston was done without Mr Strong’s knowledge. The information was used by Mr Houston in a way to make the plaintiff company, his competitor, suffer the loss. Plaintiff sued both the partners of the defendant company for breach of contract under vicarious liability. The trial court said that both the partners are liable for breach of the contract. The case went to the Court of Appeal.

Contention:

  • Whether or not Mr Houston acted within the scope of his authority in obtaining the details of the plaintiff company?
  • Whether or not Mr Strong is liable for the wrongful act committed by Mr Houston?

The ratio of the Case:

The defendant’s counsel argued that gaining information about your competitor’s business is something that a businessman can do and hence, it is legal. So, what Mr Houston did is legal and that he is not liable for the breach of contract. The court agreed with this argument of the defence counsel and stated that Mr Houston acted as an agent and it is done within the scope of his authority, it is illegitimate and amounts to a breach of contract. This was based on the board risk principle, according to which if the principal is the one who will benefit from the acts of the agent, then he is also liable for the risks the agent goes through, while he is performing the acts delegated to him. In this case, the clerk was an agent of Mr Houston and so he is liable for the risk the clerk incurred, that is, the breach of contract, while delivering the information Mr Houston has asked for.

The decision of the Court:

The Court of Appeal upheld the order of the trial court and said that both the partners of the defendant company, Mr Houston and Mr Strong, are guilty of inducing breach of contract, even though it was committed by only one of them.

This case comment is written by Santhiya V, a 3rd year BBA LLB (Hons.) studying at Alliance University.

Editor- Deeksha Arora

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