Jayesh Patel & Associates is a law firm located in South Mumbai, near Marine Lines station, headed by Jayesh Patel, senior advocate, Bombay High Court. The firm predominantly practices law on the civil side dealing with corporate laws, property laws, contractual laws, banking laws, and personal laws. Also, we are the legal advisors to some of the leading nationalized banks for more than two decades.
Qualifications
Fresh law graduate with or without internship experience
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Attending and assisting in DRTs, DRAT, High Court, and City Civil Court including various departments thereof
Assisting in the drafting of pleadings/notices/replies/rejoinders and keeping a track of the latest court decisions and attending and participating in the meetings held with the clients
Updating court cases and advising the status of the clients
Maintaining a diary including the Google calendar regularly and following up on pending court cases
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It was held by the Supreme Court of India in the case ofITD CEMENTATION INDIA LIMITED Vs SSJV-ZVS JOINT VENTURE & ORS that a shared interest in the enterprise’s assets or subject matter, as well as contributions of money, supplies, labor, or knowledge from each party, may be necessary for the foundation of a joint venture.
FACTS:
An application has been made to strike Respondent No. 2 from the list of parties in the current petition. The execution proceedings are a result of an Award made on March 9, 2019, according to which the Enforcement Petitioner is now entitled to receive Rs. 6,65,55,228/- plus interest at 12% from November 7, 2013, till the amount is realized, as well as fees.
A joint venture between M/s SSJV Projects Private Limited and M/s Zarubezhvodstroy formed the first respondent. According to the applicant’s own admissions, the aforementioned joint venture was established in order to carry out the contract for the building of a barrage and a desilting chamber for the Tapovan-Vishnugad Hydroelectric Power Project. The documents provided in these proceedings make clear that on February 6, 2009, the Respondent had signed a contract for the building of an upstream cut-off wall. Due to disagreements, the subject was ultimately sent to arbitration. The process eventually resulted in the declaration of an Award, whose enforcement is demanded in the current suit.
The second Respondent, SSJV Projects, was unquestionably a part of the joint venture. The joint venture was represented by an array of respondents before the arbitral tribunal.
The Applicant Respondent No. 2 nevertheless argues that the execution procedures as framed against it are unmaintainable since it was not individually given notice by the Arbitral Tribunal.
The second respondent is a legal entity that has been lawfully incorporated, giving it a separate and distinct character in law, and as such, the counsel representing the applicant would argue that no execution actions may be brought against it.
COURTâS DECISION:
In addition, learned counsel cited a ruling made by the court in Consulting Engineers Group Ltd v. National Highways Authority of India (NHAI) to bolster her arguments. However, it must be made plain right away that Consulting Engineers cannot be taken as an authority defending the claims made on the applicant’s behalf. If a consortium member had been acting alone, might they have requested interim relief or invoked arbitration? Consulting Engineers were debating this issue. The learned Court finally decided that a member of a joint venture could not independently petition for interim measures, although negating the right of an individual member to initiate such a petition. Moreover, the court ruled that a consortium member cannot unilaterally request relief from the court and that only the joint venture has the power to employ the dispute resolution provision. Hence, the ruling in Consulting Engineers actually contradicts the arguments made in favor of the applicant.
When describing the idea of a joint venture, Dr. George initially cited a decision made by the Gujarat High Court Division Bench in the case of Asia Foundations & Constructions Ltd., Bombay v. State of Gujarat. The aforementioned High Court defined the fundamental characteristics of a joint venture when rendering its decision in the context of a contestable tendering procedure.
As may be seen from the remarks made in paragraph 14 of the report, the Gujarat High Court restated the opinions made in Asia Foundations in Continental Construction Ltd. and Ors. v. State of Gujarat & Anr.
Corpus Juris Secundum provides a more thorough explanation of the joint venture idea and provides the following definitions of the nature of such businesses:
An alliance of two or more people to operate a single profitable business company is typically referred to as a joint venture. This legal relationship was established by American courts.
According to the aforementioned, clearly stated concepts, a joint venture may be defined as a quasi-partnership when two or more entities work together to carry out a specific transaction or contract for mutual benefit. In essence, it illustrates the idea that two or more people might jointly assume the responsibility for carrying out a contract or starting a business in order to make money. A joint venture enters into a contract and binds itself to the numerous responsibilities set thereunder and exercises all rights granted therein, even if it is not strictly speaking considered to be a legal person under the law. Another option is a consortium, in which two or more people or businesses band together to fulfill their duties.
Unquestionably, the joint venture itself, acting for and on behalf of all of its members, signed the contract in this case. Respondents Nos. 2 and 3 collaborated on the business endeavor and agreed to split the earnings. It is obvious that the Enforcement Petitioner has the legal right to pursue action against the Respondents jointly and severally. The Court additionally determines that the individual joint venture participants were neither required nor placed under a responsibility to be arrayed as party respondents by the Enforcement Petitioner. For the purposes of deciding the claims that eventually came to be made by the Petitioner, it was evidently sufficient that the joint venture itself was before the Arbitral Tribunal.
The trial of such conflicts cannot be requested by the individual joint venture partners based on their own agreed-upon or imagined personal duties and obligations. They obviously wouldn’t bind other parties. It is obvious that the person granting a contract in favor of a joint venture has the right to continue with the assumption that all of the consortium’s members would be held jointly and severally accountable. Naturally, any contract or agreement to the contrary will apply to this. In any scenario, a joint venture’s member cannot avoid the responsibility that has been raised or resulted from that endeavor. It would still be held jointly and severally accountable, as stated above.
As a result of the aforementioned factors, the Court is unable to uphold the petition as it is stated. The application will be rejected.
In the case of Annanya Yaduvanshi(Minor) vs Central Board Of Secondary Education & Others, the father (Rajendra Prasad) of the minor (Annanya Yaduvanshi) filed a petition, claiming compensatory time for Writing. As her daughter is suffering from hearing impairment and according to the guidelines of CBSE, she is entitled to such compensation, which CBSE itself fails to provide her.
FACTS:
In this case, Ananya Yaduvanshi is a Minor who was pursuing her class 12 from CBSE Board. She is diagnosed with Sensorineural Hearing Loss. She finds it diïŹcult to complete her exam within the given time due to 77% hearing impairment in both ears. Thatâs why her father Rajendra Prasad sent an application to CBSE Board through her school regarding extra time to be given to her to write her exam. But that application got rejected by the CBSE Board by issuing a letter on 02-03-2023. Then her father as natural guardian on behalf of her daughter (who was a minor according to law) filed a petition W.P.(C) 2881/2023 and CM APPL.11182/2023 against the CBSE Board.
PLAINTIFFâSCONTENTION:
The father of Ananya (Minor) filed the petition W.P.(C) 2881/2023 and CM APPL. 11182/2023 to dissolvethe letter dated 02-03-2023 to grant the minor necessary compensatory time to write her class 12th exam for the academic session of 2022-23. And her daughter was also suffering from Sensorineural Hearing loss i.e 77% of hearing impairment in both ears as per the rights of a Person With Disability Act, 2016.
As clearly stated in this act, âResponsibility has been cast upon the appropriate governments to take effective measures to ensure that the persons with disabilities enjoy their rights equally with othersâ. Thatâs why her father filed a petition against the letter issued by the CBSE, which was rejecting thePlaintiffâs application to let her daughter have some extra time while writing in the examination.
Learned Counsel on behalf of the Plaintiff said that as per the guidelines of CBSE dated 12-04-2019, Plaintiff(minor) should be given some extra time for writing inexamination and her father has also given anapplication regarding her impairment to the principalof the respondent of No. 3 school.
Learned Counsel for Respondent Mr. Atul Kumar saidthat the impugned letter dated 02-03-2023 was given on basis of technical grounds to Plaintiff for therejection of their application.
JUDGEMENT:
The Delhi High Court said that CBSE by following its guidelines and circulars should accept the request of Plaintiff to provide extra time for writing in the examination. Further that, technical issues in the delay of application before CBSE should not be considered as important in the petitionerâs case, and the Court decided the date for the next exam of the Plaintiff is 11-03-2023 and before that CBSE has to decide the representation of the petitioner.
The judgment of SANDEEP TILWANI Versus STATE OF NCT, by the High Court of Delhi relates to a petition filed by Sandeep Tilwani, the director of J Sai Kripa Import & Export Co. Ltd., seeking regular bail in case FIR No. 220/20 Under Section 420/406/467/468/471/474/120-B IPC registered at Police Station E.O.W. The complaint was filed by Ms. Upma Sharma who is one of the directors of the company “Cargomasters Logistics Pvt. Ltd.”, engaged in the business of freight forwarding and logistics services (International transportation) alleging that the respondent company’s payment for logistical support was not made by the petitioner and when bill of ladings (BLs) was not issued, the petitioner fraudulently sent fake Telegraphic Transfers (TTs) to give the impression that payment from Thai bank has been requested and tricked the respondent in sending the BLs and resulting in clearance for the transported goods without payment being made to the logistics co.
FACTS:
The complainant alleged that in 2018, petitioner assigned 74 bookings of 640 rice containers to the complainant company for freight services (transportation) amounting approximately to the amount of Rs. 11,20,00,000/-. for gaining the confidence of the complainant, petitioner made initial payments to the complainant and he stopped the payment after that the complainant held the release of remaining Bill of Ladings (BLs). The petitioner induced the complainant to release the remaining BLs and to assure her, he sent copies of two Telegraphictransfers (TTs) as proof of payment and promised that he was going to transfer the payment through these TTs from Thailand. The complainant believing these (TTs) to be true released 3 remaining BLs. But neither the due payment nor the payment against these 3 BLs, was transferred by the petitioner. Later on, the complainant came to know that the said (TTs) were never deposited in the concerned bank in Thailand.
PETITIONERâS CONTENTIONS:
It was submitted by the petitioner that a civil dispute is beingconverted into a criminal case in order to recover the money in a commercial transaction. He further submitted that the Petitioner was only a mediator between the seller and the buyer and he is being implicated in a ploy to extort money from the petitioner. He further submitted that no efforts have been made to arrest the co-accused persons and the investigation is now complete and no useful purpose would be served by keeping the petitioner in custody. He also alleged that the respondent concealed material facts and gave false information while registering the FIR.
RESPONDANTâS CONTENTIONS:
The respondent strongly opposed the bail plea by stating that the petitioner is a habitual offender and his passport has been seized by the Thai court in a similar matter. He has also changed his identity and has got four passports issued. In order to gain the confidence of the complainant the petitioner made initial payments to the complainant and thereafter stopped the payment for freight services. He also induced the complainant to release the BLs by showing forged TTs as proof of payment and believing them to be true, the complainant released the BLs and suffered a huge loss.
JUDGMENT:
Rajnish Bhatnagar, J. while dismissing the bail application held that âthe petitioner is a habitual offender having similar cases registered against him in the court of Thailand and he has even got issued 4 passports by changing his identity. So, when such is the position, the petitioner is a flight risk and the allegations against him are severe in nature who has cheated the complainant in a planned manner to the tune of more thanrupees Six Crores. The petitioner has even got 3 Bill of Ladings (BLs) released from the complainant and in order to gain the confidence of the complainant, he sent copies of two Telegraphic Transfers (TTs) as proof of payment and the complainant believing these two TTs to be true released 3 Bill of Ladings (BLs) but neither the due payment nor the payment against these 3 Bill of Ladings (BLs) was transferred by the petitioner and later on it was revealed during the investigation that the TTs were never deposited by the petitioner in the concerned bank at Thailand and the petitioner succeeded in getting 3 Bill of Ladings (BLs) released by the complainant by sending fake TTs.â
It was held by the High Court of Delhi in the case of  CAMPUS ACTIVEWEAR LIMITED versus  RAM SHANKAR GARG & ORS. that the plaintiff has failed to prove the criteria for reaching the status of passing off products. The case presented here was the plaintiff’s claim of violation of deceptive business practices through violation of intellectual property rights.
FACTS:
âąÂ The plaintiff, Campus Active Limited, practices the business of manufacturing footwear of a wide range and has registered proprietorship over the title of “CAMPUS” in various formats ( also referred to as â registered marksâ, which are later made to sell with the same marks.Â
âąÂ The issue here arises due to the use of formative marks by the defendant âimpugned marksâ ) Ram Krishna Garg’s establishment, M/s Baba Footwear, which is similar to that of the marks used by the plaintiff which are also used for manufacture and sale of footwear.
âąÂ The plaintiffâs predecessor-in-title adopted the establishment in 1990 and chose to add several variations of a cursive logo( red and grey tones) as a registered mark for Campus Activewear Limited in 1997. The rights over these marks have been allotted to the plaintiff in question and some formalities were launched to change the name in the records of the Trademark Registry. The plaintiff was also said to own a proprietorship over registered logos of blue and greyish tones.
âąÂ The proprietor, Ram Chandra Garg who has been treated as Defendant no 1 in this matter owns and has sole proprietorship over M/s Baba Footwear, his establishment which has been treated as Defendant no 2, and also has ownership over the logo âCAMPSâ which has a cursive design above the letters which is used on footwear manufactured and produced by the establishment.Â
âąÂ This design was adopted in 1980 and further, in 1996, they modified the logo in a stylized manner which was formed using the first name of the proprietor in Devnagri script âà€°â by placing it above the word âCAMPSâ.
âąÂ Defendant no 3 has been prosecuted as a dealer of the impugned goods.
PLAINTIFFâSÂ CONTENTIONS:
âąÂ The Senior Counsel for Plaintiff, Ms. Kirti Uppal claimed that the registered marks of the plaintiff have been in use since 1984 which has also led to the establishment acquiring substantial goodwill.  Moreover, the plan also has obtained protection in foreign countries which lead to the recognition of their registered mark as a well-known trademark.
âąÂ The Plaintiff obtained their registration for the trademark âCAMPSâ on 12th November 1990 while defendant no 1 and 2 got their registration for the impugned mark only in 2001 thus leading to a huge time difference between both the establishments adopting the registered mark and the impugned mark. The plaintiff also leveled claims stating that their unique logo was imitated by the defendant leading to business losses.
âąÂ There is also the issue of similarity in terms of pronunciation of âCAMPUSâ and âCAMPSâ adopted by the plaintiff and defendant respectively with an inverted red double tick on top of the letter âMâ hurting the prospects of the plaintiff in conducting business as well as the chances of riding on their previous goodwill as well.
âąÂ The actions of the plaintiff have led to loss for the plaintiff. The plaintiffâs side presented evidence from the defendantsâ website through screenshots showing that they have imitated the registered trademark as well as engaging in the selling of counterfeit goods.
DEFENDANTSâ CONTENTIONS:
âąÂ Defendants no 1 and 2, were represented by Mr. Avneesh Garg who contended that the defendants were using the trademark âCAMPUSâ since 01st October 1980 despite being registered on 22nd October 2001. He also further claimed that the plaintiff started using their mark â CAMPUSâ recently and it was only after the registration of their particular mark was done by the defendant.
âąÂ To counter the claims of similarities between the two marks, the defendantsâ side argued that their mark had superior rights because of prior use.
âąÂ The allegation of infringement which was raised by the plaintiff would be countered by Section 34 of the Trademarks Act, 1999 which states about protection granted due to prior use of a mark, therefore, making the plaintiff’s market share irrelevant. The defendant’s side also presented proof regarding the plaintiff using the mark on a proposed to-be-used basis and also that of a similarly termed mark â CAMPSâ as well further substantiating their arguments of the plaintiff riding on the defendantsâ goodwill.
COURTâSÂ DECISION:
The Court has established that the plaintiff has not suffered any damage leading to irreparable harm/injury, therefore, displaying the lack of a prima facie case thus proving that the adoption of the impugned mark was done in good faith and failure on the part of the plaintiff to prove the test of passing off.
The present case of DR. REDDYS LABORATORIES LIMITED versus RIKON PHARMACEUTICALS PVT. LTD. is a legal settlement agreement between two parties regarding a trademark dispute that was settled with the intervention of the Delhi High Court Mediation and Conciliation Centre. The settlement agreement outlines the terms and conditions that both parties have agreed to abide by, and the judgment confirms that the suit is decreed in terms of the settlement agreement, which shall be binding on both parties. The plaintiff is entitled to a refund of court fees, if any, deposited by them.
FACTS:
The parties involved in this case were disputing over the ownership and use of a trademark named “NISE” and “RIKONISE”. The plaintiff was the owner of the trademark “NISE”, which they claimed was being infringed upon by the defendant’s use of the trademark “RIKONISE”. The defendant was manufacturing and using the mark ‘RIKONISE-P’ or ‘NISE-P’ in medicinal and pharmaceutical preparations of suspension syrups for domestic sale in India and for export.
ISSUES RAISED:
Whether the defendant’s use of the mark “RIKONISE-P” infringed upon the plaintiff’s exclusive proprietary rights in the trademark “NISE”. Whether the defendant’s use of the mark “RIKONISE-P” constituted passing off of their goods as that of the plaintiff’s. Whether the plaintiff was entitled to damages, the account of profits or any other relief for the alleged infringement and passing off. Whether the parties could reach a settlement agreement that would resolve the dispute between them.
PLAINTIFFâS CONTENTIONS:
The plaintiff claimed that they had exclusive proprietary rights in the trademark “NISE” and that the defendant’s use of the mark “RIKONISE-P” in medicinal and pharmaceutical preparations of suspension syrups for domestic sale in India and for export was an infringement of their trademark rights. The plaintiff further contended that the defendant’s use of the mark “RIKONISE-P” was likely to cause confusion among consumers and constitute passing off of their goods as that of the plaintiff.
DEFENDANTâS CONTENTIONS:
The defendant, on the other hand, denied that their use of the mark “RIKONISE-P” amounted to infringement of the plaintiff’s trademark rights or passing off. The defendant claimed that the mark “RIKONISE-P” was distinctive and not deceptively similar to the plaintiff’s mark “NISE”. The defendant also argued that they had been using the mark “RIKONISE-P” for a long period of time without any objection from the plaintiff and that their use of the mark was honest and in good faith. The parties also contested whether the plaintiff was entitled to any damages, the account of profits or any other relief for the alleged infringement and passing off. Finally, the parties attempted to resolve their dispute through mediation, with the Delhi High Court Mediation and Conciliation Centre intervening to facilitate the settlement agreement. The contention was whether the settlement agreement was acceptable to both parties and could resolve the dispute between them.
JUDGMENT:
The dispute was resolved with the intervention of the Delhi High Court Mediation and Conciliation Centre, and a settlement agreement was reached between the parties. The terms of the settlement agreement were as follows:
The defendant acknowledged the plaintiff’s exclusive proprietary rights in the trademark “NISE” and agreed not to challenge the plaintiff’s statutory and proprietary rights directly or indirectly in India or globally.
The defendant confirmed that they had stopped manufacturing and using the mark ‘RIKONISE-P’ or ‘NISE-P’, directly or indirectly in medicinal and pharmaceutical preparations of suspension syrups for domestic sale in India or for export, as per the directions passed by the Hon’ble High Court of Delhi vide order dated 22/07/2022 in CS (COMM) No. 495 of 2022.
The defendant confirmed that they had manufactured tablets and capsules under the mark ‘RIKONISE-P TABLETS’ for domestic sale in India and that they had agreed to stop the manufacture and use of tablets under the mark ‘RIKONISE-P TABLETS’.
The defendant agreed not to manufacture any fresh batch of products bearing the mark âRIKONISE-Pâ and ‘RIKONISE-P TABLETS’ and declared that any further production would make them liable for cost and damages.
The defendant confirmed that they did not have in stock any further products, packaging, or printed material bearing the mark ‘RIKONISE-P TABLETS’ and âRIKONISE-Pâ in India, and any unused printed material would be destroyed by the defendant at their own cost.
The defendant agreed not to use in future any mark containing the mark “NISE” or “NICE”. The defendant undertook to apply to cancel their registration for the mark “RIKONISE” in class 5 within 30 days of recording of these settlement terms.
The defendant undertook not to adopt any mark in future that is identical or deceptively similar to the plaintiff’s mark “NISE” or carry out any such activities as may be likely to cause confusion or deception amounting to, passing off their goods under captioned Trademark as and for that of the plaintiff.
The settlement agreement was binding on both parties, and the Delhi High Court decreed the suit in terms of the mediation settlement agreement. The plaintiff was entitled to a refund of court fees, if any, deposited by them. The settlement agreement resolved the trademark dispute between the parties amicably and avoid prolonged litigation.
In the present caseMINAKSHI CHITRA MANDIR SAILU THROUGH ITS PROPRIETOR SANJAY PRABHAKAR RAJURKAR Vs THE STATE OF MAHARASHTRA THROUGH THE COLLECTOR LATURbased on that petitioner is exempt from entertainment tax but still collects it from customers. Who received the money collectedâthe state or the petitioner?
FACTS:
In Sailu, District Parbhani, the petitioner operates a movie theatre that is now a multiplex cinema under the name and branding Minakshi Chitra Mandir, Sailu. The theatre in question is legally operated by the petitioner. The petitioner requested for an exemption from paying the entertainment tax after renovating the entire theatre in accordance with a State Government plan.
According to the Maharashtra Entertainment Duty Act, respondent number two Divisional Commissioner Aurangabad granted the petitioner a five-year exemption from paying entertainment tax from 26.6.2014 to 15.6.2019. When the entertainment tax was exempt, the theatre was inspected, and the inspector discovered that the tickets had the caption “entertainment tax” and that money had been taken from patrons towards “entertainment tax.” As a result, the petitioner was found responsible for paying the entertainment tax. Collector, Respondent No. 3, assessed the aforementioned tax at Rs. 7,97,514/-. In addition, Respondent No. 3 imposed a penalty equal to double the amount of the responsibility and mandated payment of a total of Rs. 23,92,542.00. The
PETITIONERâS CONTENTION:
The State is not permitted to collect the exemption from the petitioner under section 3 of the Maharashtra Entertainment Duty Act once it has been granted in accordance with section 9 (1) of the aforementioned Act. The knowledgeable attorney for the petitioner contends that because the ticket roles received approval from the relevant authorities, they are prohibited from requesting the entertainment tax’s deposit. The petitioner’s main and most significant argument is that once the entertainment tax exemption has been granted, even though the tax was mentioned on the entire value of the ticket, the respondent/State is not entitled to receive the entertainment tax, and the entire amount collected as ticket price, including the amount collected under the caption “entertainment.”
RESPONDENTâS CONTENTION:
Despite the petitioner receiving an exemption from entertainment tax, respondent No. 2 – Divisional Commissioner claimed that the petitioner was still obligated to pay the entertainment tax to the State Government because the amount was displayed on the petitioner’s ticket and was money that was taken from customers. The present writ petition is brought because the aforementioned orders of respondents Nos. 2 and 3 have wronged the petitioner.
JUDGEMENT:
1. Neither the petitioner is allowed to retain the money obtained under the caption ‘entertainment tax’, nor the State is entitled to receive the amount collected under the caption ‘entertainment tax’, as there is an exemption given by the State. The amount that the petitioner placed in this Court is not one that either the State or the petitioner is entitled to receive; therefore, the question of how best to use that money arises.
2. The deposited money in this case is used to acquire the defibrillator device, which will be done by a committee of three people made up of the Registrar (Administration) of the High Court Bench in Aurangabad, the President of the Bar Association of the High Court, Aurangabad, and Dr. Sanjay Varade, Medical Officer of the High Court Medical Clinic. Upon request from the Committee, the Registry will pay for the machine. The device would be used for anyone in need of emergency medical care and would stay in possession and under the supervision of the Medical Officer connected to the High Court Medical Dispensary.
3. The Registrar (Administration) of the High Court Bench in Aurangabad and the Medical Officer of the High Court Medical Dispensary. On the Committee’s instruction, the Registry will pay for the machine. The device will continue to be held in custody and under the direction of the Medical Officer assigned to the High Court Medical Dispensary, and it will be used for anyone in need of urgent medical attention.
4. Any remaining funds, if any, will be split equally between the Government Cancer Hospital in Aurangabad and the non-profit organisation “Shantivan,” which runs an orphanage for children who have lost their parents in Arvi, Tq. Shirur Kasar, District Beed.
This judgement concerns a petition filed by M/s InterarchBuilding Products Pvt. Ltd. seeking to quash an order passed by the learned MM (NI Act, Patiala House Courts, New Delhi) in Criminal Complaint bearing number 10567/2020. The complaint was filed by the respondent, alleging that M/s Swift Construction Expert (the accused firm) had approached the respondent in January 2019 for the design, engineering, fabrication, supply, and erection of a pre-engineered steel building. The petitioner is seeking quashing of the complaint and the order taking cognizance of an offence under Section 138 of the Negotiable Instrument Act.
FACTS:
A complaint was filed by M/s Interarch Building Products Pvt.Ltd. against M/s Swift Construction Expert, a partnership firm, for dishonour of two cheques issued towards payment of outstanding dues.
The complainant alleged that after the acceptance of the proposal, the accused firm had issued a revised purchase order and further bills and invoices were raised.
The accused firm released a part payment of Rs. 50,00,000/- through RTGS and asked the complainant to present two post-dated cheques for the balance payment of Rs. 61,00,000/-. However, both cheques were dishonoured.
The complaint was filed under Section 138 of the Negotiable Instrument Act against the accused firm and its partners, including the petitioner, Ridhima Jain, who was shown as Accused No. 3.
Issues:
Whether the petitioner, who is the wife of Accused No. 2 and not a signatory to the cheques, can be made accused and held liable for the dishonour of cheques only for accompanying her husband on a few occasions.
Whether the person who is not a signatory to the cheque can be held liable for its dishonour under Section 138 of the Negotiable Instrument Act.
Whether the petitioner, who actively participated in the execution of the purchase/works order and acted on behalf of the accused firm, can be held liable for the dishonour of cheques.
Whether the petitioner is a partner in the accused firm and responsible for the conduct of its business and can be proceeded against under Section 141 of the Negotiable Instrument Act.
Petitioner’s Contentions:
Petitioner (Ridhima Jain) is not the signatory of the impugned cheques and is not a partner in the accused firm. The account from which cheques were issued was not a joint account.
Petitioner cannot be made accused and liable for the dishonour of cheque only for the reason that she used to accompany her husband on a few occasions.Section 138 of the Negotiable Instrument Act, the person who is not signatory to the cheque cannot be held liable for its dishonour. Even in terms of Section 141 of the Negotiable Instrument Act, it is only the person in charge and responsible for the conduct of the business of the company who shall be deemed to be guilty of the offence and is liable to be proceeded against.
RESPONDENTâS CONTENTIONS:
Arguments raised are a matter of trial and should be addressed before the learned Trial Court.
The petitioner has actively participated in the execution of the purchase/works order, communicated with the respondent company through e-mails, and acted on behalf of the accused firm.
The petitioner is a partner in the accused firm.
The petitioner, having actively participated in the execution of the purchase/work order, was also responsible for the conduct of the business of the firm.
JUDGEMENT:
The petitioner has filed a petition seeking to quash the order passed by the learned Magistrate (NI Act, Patiala House Courts, New Delhi) in a criminal complaint filed by the respondent under Section 138 of the Negotiable Instrument Act. The complaint alleged that the accused firm had issued two cheques which were dishonoured, and the petitioner, who is one of the accused, is also responsible for the same.
The petitioner has submitted that he cannot be held liable for the dishonour of the cheques as he is not a signatory to them. He further submitted that under Section 141 of the Negotiable Instrument Act, only the person in charge and responsible for the conduct of the business of the company can be held liable.
The respondent argued that the petitioner actively participated in the execution of the purchase order, communicated with the respondent company, and acted on behalf of the accused firm. The respondent further denied the fact that the petitioner is not a partner in the accused firm.
The court held that the petitioner’s arguments are matter of trial and should be addressed before the learned Trial Court. The court further noted that the petitioner actively participated in the execution of the purchase order, and was responsible for the conduct of the business of the accused firm. The court also noted that the learned Trial Court had found the petitioner to be a partner in the accused firm.
Therefore, the court rejected the petitioner’s petition seeking to quash the order passed by the learned Magistrate, and held that the matter should be addressed before the learned Trial Court.
This article aims to present an overview of Constitutional Theory, its types, and its evolution over the period of time. Further on it explains in detail the constitutional principles of some of the worldâs strongest constitutions, particularly the Indian and US constitutions.
Introduction
Constitutional Theory is an aspect of constitutional law that focuses on the underpinnings of constitutional government. A constitutional theory tries to draw upon bases of agreement that exist within a legal culture and to extend those agreed-upon principles to solve issues and problems in society. Its main aim is an organization of all points of agreement together in a formal manner in cases where there is no agreement. This theory can be both subjective as well as prescriptive. On one hand, the constitutional theory is prescriptive as it purports to tell what to do but at the same time, it is also descriptive as it cannot call for a wholesome departure from existing practices. Constitutional theory can be best understood if seen as an exercise of justification. More or less, it is an effort to justify a set of prescriptions about how certain controversial constitutions should be decided. The justification is then addressed to people within a particular legal culture There are broadly two aspects of constitutional law:
The first aspect which is more of a formal theory covers
The overall structure of the government
Relations amongst branches of government
Relations between various levels of government
The second aspect relates to the theories of judicial review, which provides justifications for the occasions on which the courts, ruling on constitutional issues, will and will not displace the judgments of elected officials.
A constitution is a set of fundamental principles or established precedents, all of which altogether constitute the legal basis of an organization, and polity and determines how that entity is to be governed. When all the principles (to be followed) are written down in a single document or multiple legal documents and are written in a single, codified, comprehensive document it is said to constitute a constitution.
Constitutionalism is a legal political philosophy that recognizes the need for a government but at the same time also emphasizes restraining its power. This evolutionary philosophy is essential for a democratic setup. Like constitutional theory, there is no uniform definition of constitutionalism but in modern times it emphasizes restraining the powers of government to an extent that it doesn’t hinder the self-development of the society and economy.
Constitutions concern different levels of organizations, from sovereign countries to companies and even unincorporated associations. Moreover, even a treaty that establishes an international organization can be termed to be a constitution since it describes how that organization was constituted. Constitutions especially codified one act as limiters of state power, by establishing lines that a stateâs rulers cannot cross such as fundamental rights.
The constitutional theory differs from one country’s constitution to another’s.
Constitutional Theory in Different Countries
CONSTITUTIONAL THEORY AS ESTABLISHED IN THE UNITED STATES OF AMERICA is more of an academic discipline that focuses on the meaning of the US constitution, which draws attention to all aspects ranging from ethical, political, linguistic to sociological to historical. US’s constitutional theory emphasizes a lot of Judicial Review.
Judicial Review is a process wherein the judiciary reviews the legislative, executive, and administrative actions. It is one of the checks and balances in the separation of Power wherein the judiciary has the power to supervise the legislative and executive branches when the latter exceeds their authority. The types and general principles vary according to the jurisdiction and the country.
This idea of Separation of Power; initially introduced by Montesquieu, is based on the idea that no branch of government should be able to exert power over any other branch without due process of law, each branch should keep a check on the other to create a “regulative” balance amongst all.
When carrying out judicial review a court may ensure that the principle of âBeyond the Powersâ (ULTRA VIRES) is followed i.e. the public body’s actions must not exceed the powers given to them by legislation.
The great influence of judicial review in constitutional theory was established in Marbury v. Maddison[1]. Broad concepts explained by the Constitutional Theory:
It seeks to understand the relationship between
Branches of government
Individual rights and state power
Federal government and state
It seeks to understand how the constitution’s meaning shifts with
changes in cultural norms
changes in Political structure
Some of the US’s constitutional theorists are:
Bruce Ackerman
Jack Balkin
Ronaldo Dworkin
Robert Post
Class Sunstein
GERMANY’S CONSTITUTIONAL THEORY was established by Immanuel Kant and is based on the supremacy of a country’s written constitution This idea is the foundation for the constitutional theory of the 21st century. Similarly, based primarily upon the German legal tradition, the Russian legal system was borne out. Russian legal state concept adopts the written constitution as a supreme law of the country, it consists of 6 democratic federative legal states with a republican form of governance.
Constitutional Theory in the Indian Context
The Constitution of India is the supreme law of the land in India. The constitution lays down the framework that demarcates fundamental political code, structure, powers, and duties and lays down fundamental rights, directive principles, and duties of citizens. The democratic values in Indian society are deeply rooted in REPUBLICS since the era of the Janpadas, which can be traced back to 600 BC. The constitution very well upholds the principle of equality in all fields like ethnicity, gender, religion and creed. The success of the constitution in such a vast and diverse country like India can be traced to the fact that India has successfully accommodated the aspirations of people since its creation. Despite many internal challenges in illiteracy, inequality and diversity of cultures, traditions, and religions in contemporary India.
Background of Formation of the Constitution
The Constitution of India was framed by the Constituent Assembly, elected by members of the various Provincial Assemblies. Dr B. R. Ambedkar was the chairman of the drafting committee formed by the Assembly. Our Indian Constitution was finally adopted by the Constituent Assembly on 26 November 1949 and became effective on 26 January 1950. At the time of adoption, the Indian Constitution consisted of 395 articles in 22 parts and 8 schedules. Later, additional parts and articles have been included in the Constitution through various amendments. Presently, there are 25 parts, 448 articles and 12 schedules in our Constitution.
The first ever report prepared, also called the Nehru Report was formed in 1928 when the All Parties Meet convened a committee in Lucknow.
The Indian Constitution is drawn from a large number of sources, depending on Indiaâs needs and conditions. It draws inspiration from the already proposed constitutional theories in other parts of the world.
The constitution declares India to be a Sovereign, Secular, Socialist, Democratic, and Republic and assures to all its citizens Justice, Liberty, Fraternity, and Equality as prescribed in the Preamble of the Constitution.
The Indian constitution prescribes the functioning of each organ and even the biggest to the smallest unit of administration in India. The three pillars of the Indian legalâpolitical system are the Legislative, Executive, and Judiciary. Constitutions are broadly classified by political scientists as being unitary or federal. In a unitary constitution, the powers of the government are centralized in one government which is the central government, the provinces are subordinate to the centre. However, on the other hand, in the case of a federal constitution, there exists a division of powers between the Federal and State governments. Indian constitution is however termed as a mix combo of both types of constitution i.e., a Quasi Federal constitution. Dr BR Ambedkar termed the Indian constitution as a predominantly federal constitution with a slight mix of unitary features.
Salient features of the Indian constitution
Lengthiest Constitution The constitution of India is a written constitution that happens to be the lengthiest written constitution in the world. It is an extensive, elaborate, and detailed document.
Drawn from Various Sources It has taken the majority of its provisions from the constitution of several other countries as well as from the Government of India act, of 1935. Ex: structural part from GOI, 1935, independence of the judiciary from USA, Fundamental Rights from USA, etc.
The Preamble of the Constitution The Preamble includes the objectives, ideals, and basic principles of the Constitution. The Preamble is the nature of the Indian state and its purpose is committed to safeguarding the people. The Preamble of the Indian constitution also called a short introduction to the constitution sets out the main objectives which the legislation is intended to achieve. It is often termed as expressing the phrase âwhat we thought or dreamt for India for so longâ.
In the Re Berubari case[2], the Supreme court held that the Preamble to the constitution is a key to opening the mind of the makers and shows the basic objective for which they made the different provisions in the constitution. However, at the same time, it doesn’t mean that it can override the express provisions of the constitution.
In Kesavananda Bharati v State of Kerala[3], the Supreme Court held that Preamble is a part of the constitution. Sikri, CJ had observed, âIt seems to me that the Preamble of our Indian Constitution is of extreme importance and the constitution should be read and interpreted in the light of the grand and noble vision expressed in the preamble.”
Fundamental Rights and Duties The Constitution of India allows and ensures Fundamental Rights to its citizens.
Directive Principles of State Policy A unique part of the Constitution is that it consists of a chapter in the Directive Principles of State Policy.
Federal Structure of Government The Indian Constitution has conceived a federal structure for India in view of the geographical vastness and the diversity of regions, languages, castes, religions, etc.
Concept of Single Citizenship The concept of single citizenship has been envisaged in the constitution of India where all citizens enjoy common uniform citizenship.
Integrated Judiciary The Constitution specifies a single integrated judicial system for the Union and the states.
Basic Structure Doctrine The basic structure doctrine was firmly established by the Kesavananda Bharti v. State of Kerala[3]which means that the basic structure of the constitution cannot be either changed or destroyed through amendments made by the Indian Parliament. It is probably one of the most important, landmark cases post-independence. While deciding on the issue, it was contended that in case unfitted powers were vested in the hands of the parliament, it would lead to misuse of power by the government as per their own whims and fancies. In short, this limitless power can erode the fundamental governing, and guiding principles of the constitution.
It was held in the case of Indira Gandhi v. Raj Narayan[4] and in the case of Minerva Mills v. Union of India[5] that the where comes the question that whether a particular feature of the constitution is to be covered under the basic feature or not, is upon the discretion of the relevant court, before which the case has been brought up to.
Judicial Review It was held in the case of State of Madras v. V.G. Row[6], Chief Justice Patanjali held that judicial review is an important component closely attached to the legislature.
Living Document Last but not the least, In the case of Nagaraj v Union of India[7] it was held that the Constitution of India is a living document which is a set of leg rules for the present society but at the same time it envisages principles for the futuristic society keeping in mind the adaptation it shall have to take during times of various crisis of human affairs.
Conclusion
There are many interpretations and analyses of constitutional theory. It differs from country to country, organization to organization as the purpose of a constitution, a legal document that serves society also varies accordingly. The Indian constitution, the worldâs lengthiest and most complex constitution is a great blend of features adopted from the constitutions of countries from all across the globe. India, which adopted the path of democracy much later than other western countries, took inspiration from all these borrowed features to create a constitution which can meet the demands of the heavily diverse India. Some of the most salient features of the Indian constitution which make it stand apart from the other constitutions include being the lengthiest constitution, the preamble or the unique short brief to the constitution, and the concept of basic structure doctrine which has been laid down and upheld in several landmark cases. The Indian constitution most importantly is neither too rigid nor too flexible, it allows amendments to the existing structure through specified procedures, to cope up with the changes of time and society, hence making the Indian constitution a living document. Despite, all flaws pointed out by the critics, the Indian constitution has stood all tests of time and won in all aspects of the Indian Democracy.
Citations:
Marbury v. Madison, 5 U.S. 137 (more)1 Cranch 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352
Re: The Berubari Union, AIR 1960 SC 845
Kesavnanda Bharati v State of Kerala, AIR 1973 SC 1461
Mineva Mills v. Union of India, AIR 1980Â SCÂ 1789
State of Madras v. V.G. Row, 1952 SCR: AIR 1952 SC 196
Nagaraj & Ors. v. Union of India & Ors. (2006) 8 SCC 212
References:
Constitution of India, V.N Shukla
WILLIAM & MARY BILL OF RIGHTS JOURNAL: constitutional theory in a nutshell by THOMAS E. BAKER
What is a constitutional theory? – DAVID A. STRAUSS; CALIFORNIA LAW REVIEW (VOL. 97:581)
The present case of Gurjit Singh (D) Through LRsâŠVersus Union Territory, Chandigarh & Ors., is based on a dispute between a tenant and a landlord. Both of them had marketing licenses but after a period of time, the appellant passed an eviction order against the respondent. Herein, the respondent moved to another shop but was not granted a license for the same. He later was allotted another shop in front of his previous landlord to which the appellant claimed ownership.
FACTS:
The judgment made by the learned Judge, Mr. J Shah, on23.10.2013 passed by the High Court of Punjab and Haryana at Chandigarh, and these sequent order dated 17.12.2013, by which, the Division Bench of the High Court has dismissed the said letters and Patent Appeals. Gurjit Singh, the appellant stated and informed that he had bought Shop no. 27 from the Agricultural Produce Market, Chandigarh and that respondent no. 5 was the tenant of that shop. Both the appellant and respondent no. 5 had market licenses. The appellant evicted respondent no. 5 shortly after. The High Court upheld the eviction. Hence, in 2007, respondentNo. 5 moved as a tenant to Shop No. 12 and applied for a change of address, but it was refused and he was told to surrender his license and apply for a new one. State Agricultural Marketing Board granted the appellant’s fruit/vegetable license. Since then, the appellant runs the business from his Shop No. 27. Respondent No. 5 filed a writ petition with the High Courtchallenging the judgment dated 05.07.2007 that denied his requestto move to Shop No. 12. 05.07.2007 order stayed. The stay was extended until respondent No. 5’s license expired on 31.03.2009. The Market Committee, Chandigarh denied respondent No. 5’slicense renewal application.
Under the order passed by the High Court, respondent No. 5 continued to operate under the former license per the Supreme Court order. That the Licence Committee under Licensing of Auction Platform Regulations, 1981 resolved to allot the platform site based on “One Site One Shop” and listed respondent No. 5 as co-allottee with the appellant.
Aggrieved by this, the appellant filed a writ petition. The HighCourt granted respondent No. 5’s writ petition and renewed his license on 26 September 2011. The High Court further ruled thatrespondent No. 5 can use the platform in front of Store No. 27unless the Act or Regulations are amended to provide alternativeplatform rights. The knowledgeable Single Judge also found thatthe right to utilize the platform and the license to do business in the market region were distinct and unrelated.
APPELLANTâS CONTENTIONS:
The appellant herein is doing business, has a license, and is granted shop No. 27, thus he is entitled to the auction platform adjacent to and/or in front of it. Respondent No. 5 is doing business in shop No. 12, therefore not allowing the appellant(s) todo business on the auction platform, which is close
to shop No. 27, and allotting it to him is unjust and arbitrary. Then, the appellant challenged the site co-allotment to respondent No. 5 before the learned Single Judge. If the appellant fails, they cannot be worse off than before filing the writ petition. Hence, Market Committee sheds collapsed on 10.06.2007 and were rebuilt in 2009. Soon thereafter, the Secretary of Agriculture, U.T. Chandigarh handed down the principles and rules at the first instance, allottees who were assigned sheds for working previousto the collapse of shed 8 on 10.06.2007 were entitled to shed/space as they existed on that day. The appellant was awarded the license on 16.07.2007, however, the sheds collapsed on 10.06.2007, hencehis case is not covered by the policy. The Market Committee’sallocation of sheds follows the Secretary, Agricultural Department, Chandigarh’s guidelines/policy.
RESPONDENTâS CONTENTIONS:
Respondent No. 5 has had a valid license since 1970 and was operating on the platform when the shed collapsed on 10.06.2007. However, at the time of the allotment of freshly constructed sheds, the firm’s license was not valid owing to non-renewal, and theCommittee’s office was considering granting the license, which was finally granted in February 2010. After the Committee was formed, respondent No. 5, Committee licensee and shed owner before its collapseâwas allotted the shed. The above arguments request that the appeals be dismissed.
JUDGMENT:
In view of the above and for the reasons stated above and in absence of any specific rule/regulation to the contrary and when the sheds are allotted as per the principles/guidelines of the Secretary, Agriculture, reproduced hereinabove, and in absence ofany specific rule in favor of the appellant, right to claim the allotment just in front of his shop and/or adjacent to the same and when the allotment in favor of respondent No. 5 is made as per. As both the learned Single Judge and Division Bench of the High Court have rightly held against the appellant and have rightly dismissed the writ petition and appeal. The supreme court was in complete agreement with the view taken by the High Court.
The present appeals lacked merit and were dismissed for the reasons indicated above.
