Ampride Legal (advocates & consultants) is a professionally managed and result-oriented law firm providing holistic legal service/consultancy to banking & non-banking financial companies, corporate, importers, exporters, manufacturers, and service providers, including logistics/shipping agents/CHA on a PAN-India basis settlement commission, high court.
Responsibilities
Handling legal compliance (drafting) compliance on projects
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True Legal Assist is a firm based in Noida and Delhi, where she actively practices before the supreme court of India, various other high courts, Delhi subordinate courts, and different tribunals. They were admitted to the bar in 2014. They have been the most active group on all social networks. They have written various articles on diverse areas of law including commercial laws, children’s families and state; medical law, and ethics and law in society.
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The Supreme Court on Thursday announced its decision on the long-standing appeal of the petitioner in this case of a triple murder. The Constitution Bench has determined that the HighCourt or, in the event of a subsequent appeal, the Supreme Court, and not any other Court inthis country, may exercise power to impose a fixed term sentence or modified punishmentthat can be derived from the IPC. When a Constitutional Court determines that even though a case does not fall under the category of “rarest of the rare,” taking into account the seriousness and nature of the offence, as well as all other pertinent factors, it can always impose a fixed term sentence, preventing the accused from benefiting from statutory remission, etc. In addition to the same, the Court has the power to alter a lower court’s judgement to the said punishment, whether it lowers or upgrades it, depending on the gravity of the crime committed and the application of judicial conscience appropriate to the offence that was judged to have been committed.
FACTS
In the matter at hand, the appellant had been involved in the gruesome murder of three peoplealongside other co-accused persons in March 2006. Upon the case reaching the SessionsCourt, the appellant was convicted for the offence under Section 302 of the Indian Penal Code. The three co-accused in the case were also convicted for the same offence and all those convicted were sentenced to life imprisonment. After the initial judgement, an appeal waspreferred in
the High Court, which further went on to affirm the lower court’s judgement. On finding norecourse, the appellant came to the present Court.
CONTENTIONS
Appellant
The appellant’s learned counsel has challenged the High Court conviction on the basis ofwrongful identification of the accused in the matter. The counsel has submitted that there isno compelling evidence to prove the involvement of the appellant in the murder. As per thelearned counsel, he has taken the precedent of UnionofIndiav.V.SriharanaliasMurugan&Ors., to further his case that the current sessions court has no jurisdiction to deal in the matter in regards to the punishment of life imprisonment. According to the appellant’s counsel, when it came to commuting a death sentence, only the Constitutional Courts can usesuch a power.
Respondent
Contrary to the petitioner’s counsel, the respondent’s learned counsel submits that both theCourts preceding the present Hon’ble court have considered the evidence provided and thetestimony of witnesses so given. The Court has the jurisdiction and power to modify and/orrectify the provided judgement of the High Court in such a manner.
JUDGEMENT
Upon giving due regard to the facts and law in the above-mentioned case, it is contended bythe Hon’ble Court that pursuant to the contested judgements, the appellant’s conviction isaffirmed. Although the arrangement of the sentence has been tweaked a bit. The appellant is to serve a set term of 30 years of solitary confinement under strict supervision. Moreover, the appellant has been stripped of the opportunity to opt for recourse or remission under the Codeof Criminal Procedure. The appeal was thus partly allowed.
The Delhi High Court in the case VIJAY KUMAR JHAMB vs. UNION OF INDIA held that the respondent overstepped its jurisdiction in opining that the bank clerk with 20 years of service was not entitled to any pension under the Pension Rules of the bank.
FACTS
The petitioner joined the services of the State Bank of India as a clerk on April 10, 1981, and was removed from service on the basis of an order dated November 24, 2004, pursuant to ex parte disciplinary proceedings held against him. The petitioner requested the release of his pension from the bank because he had more than 20 years of service and claimed that because he had submitted his retirement on March 10, 2004, he was entitled to it. After not hearing back, the petitioner brought a complaint before the Assistant Labour Commissioner on behalf of the All India Bank Staff Association. The bank asserted during the conciliation proceeding that the petitioner was not entitled to a pension under the applicable Pension Rules. The respondent issued the challenged order denying to refer the petitioner’s claim for adjudication after receiving a failure report from the Assistant Labour Commissioner serving as the Conciliation Officer due to the bank’s opposition to the petitioner’s claim. Being aggrieved, the petitioner approached this Court by way of the present petition.
PETITIONER’S CONTENTIONS
The petitioner’s learned counsel argued that the impugned order was completely without jurisdiction since, according to Section 12(5) of the I.D. Act, the appropriate government lacked the authority to decide on the opposing positions expressed by the parties. He argued that the Conciliation Officer’s and the Appropriate Government’s jurisdictions were extremely constrained, and all that they needed to take into account was whether or not there was a dispute between the parties. A disagreement can only be completely frivolous before the government decides not to refer to it. It was the respondent’s responsibility to refer the case to the Industrial Tribunal in the current instance after it became clear that the bank was refusing to consider the petitioner’s demand for a pension. According to I.D. Act Section 12(5), the respondent was not permitted to perform an adjudicative duty. Therefore, he requested that the contested order be reversed and that the respondent immediately refer the petitioner’s claim to the Industrial Tribunal.
RESPONDENT’S CONTENTIONS
Mr. Gogna, experienced counsel for the respondent, attempted to justify the assailed order by arguing that the appropriate government was required to determine whether a prima facie case was made out for adjudication prior to making a reference under the Industrial Disputes Act. In exercising its authority under Section 12(5) of the I.D. Act, he contends that the appropriate government is not compelled to refer to every issue; rather, it is expected to first determine whether a reference is warranted or not. The government is not compelled to make any references unless it is convinced that the claim has to be submitted for adjudication. Nevertheless, it had to give a justification for not referring the case to the Industrial Tribunal for resolution. As a result, he prayed that the petition be dismissed.
JUDGEMENT
The judgement was given by considering the facts of the present case with the decision given in the case of M.P. Irrigation KaramchariSangh Vs. State of M.P. and Another, (1985) 2 SCC 103. It was held that the respondent had overstepped its jurisdiction in opining that the petitioner was not entitled to any pension under the Pension Rules of the bank. The respondent has failed to appreciate that it was the petitioner’s specific case that he had voluntarily resigned from service with effect from May 1, 2004, but was thereafter malafidely removed from service on November 24, 2004. Additionally, despite being terminated, he would still be eligible for a pension because he served for more than 20 years. The respondent could not have simply rejected the petitioner’s position on the basis of a prima facie case without giving him the chance to present evidence before the learned tribunal. For the aforesaid reasons, the impugned order, being wholly unsustainable, was accordingly set aside. The matter was returned to the respondent, who will immediately refer the petitioner’s disputes to the appropriate industrial adjudicator so that a decision can be made without further delay.
It was held by the Supreme Court of India in the case of GUJARAT URJA VIKAS NIGAM LIMITED & ORS VS RENEW WIND ENERGY (RAJKOT) PRIVATE LIMITED & ORS that on April 13, it held that the concurrent findings and orders of the State Commission and APTEL cannot be sustained. They are 51 accordingly set aside. The appeals are allowed, with costs payable to the appellants. It is the conclusion of the Supreme Court of India.
FACTS
The judgment is made by the learned Double Judge bench “Hon’ble Mr Justice S. Ravindra Bhat, Hon’ble Mr Justice Dipankar Datta” On 13 April 2023. The Judgment Is Given By “Hon’ble Mr Justice S. Ravindra Bhat”.
The current civil appeals,1 under Section 125 of the Electricity Act, 2003, challenge orders of the Appellate Tribunal for Electricity (hereafter, “APTEL”), dated 06.12.2018 (“first impugned order”) and order dated 24.07.2020 (“second impugned order”). The APTEL had, by those orders, rejected the appeals preferred by the present appellant, and the review petition, as well. Resultantly, the order of the Gujarat Electricity Regulatory Commission (hereafter “the State Commission”), dated 01.07.20154 was affirmed.
The first appellant – Gujarat Urja Vikas Nigam Limited (hereafter “Gujarat Urja”) had approached this court previously challenging the order of APTEL, which was disposed of by this court granting liberty to it, to seek review/rectification. Gujarat Urja then preferred a review petition, which was rejected by APTEL, by the second impugned order. When this appeal was taken up for hearing, on 14.10.2020, this court issued a notice and stayed the impugned order of APTEL.
Gujarat Urja procures power in bulk on behalf of distribution licensees in the state of Gujarat; it is an authorized licensee within the meaning of the term under the Act. The second, third, fourth and fifth appellants are distribution licensees in the State of Gujarat. The first respondent, Renew Wind Energy (Rajkot) Pvt Ltd (hereafter “RWE”) is a wind generator which had set up 25.2 MW Wind Turbine Generators at District Rajkot, Gujarat under the Renewable Energy Certification scheme notified by the Central Electricity Regulatory Commission (hereafter, “Central Commission”). The second respondent is the Wind Independent Power Producers Association (hereafter “Association”). Respondent No 3, Gujarat Electricity Regulatory Commission (hereinafter “theState Commission”) is the regulatory commission under the Act, for the State of Gujarat. The fourth respondent, Wish Wind Infrastructure LLP (“Wish Wind” hereafter) is a wind generator.
On 11.07.2013, Central Commission amended the REC Regulations 2010 (hereafter “Second Amendment”) and replaced “at a price not exceeding the pooled cost of the power purchase “with” at the pooled cost of power purchase”14 along with the relevant statement of reasons for the said amendment. It was clarified in the amendment that PPAs already executed before this amendment at a tariff lower than APCC would not be affected. The first two respondents were aggrieved by the order of the Central Commission. They filed a petition before the State Commission arguing that the terms of the PPA had to be changed because of the change in the REC regulations. This petition was allowed by the State Commission directing that the order of the Central Commission was general and was therefore applicable to all similarly situated wind power generators. Aggrieved by the order of the State Commission, Gujarat Urja had preferred an appeal16 before APTEL. This appeal was rejected by APTEL by order dated 06.12.2018. The appellants preferred a review petition against APTEL’s order rejecting their appeal against State Commission’s order; that too was dismissed by APTEL vide order dated 24.07.2020.
APPELLANT’S CONTENTION
The learned senior counsel for the appellant, Mr C.A. Sundaram submitted that governing regulations for the PPAs in question were the CERC Regulations 2010. Therefore, the State Commission had no jurisdiction to decide the tariff contrary to the agreement. Further, counsel argued that Central Commission itself has clarified by the Second Amendment that in respect of PPAs entered into before 11.07.2013, tariffs mutually agreed upon between the parties would be valid for the entire duration of the PPA (i.e.25 years) and they could not be substituted or re-determined by the State Commission. It was further argued that had the appellants known about the APPC on a year-on-year basis at the time of signing the agreement, they would not have adopted the REC mechanism but instead would have availed a different method whereby prices were fixed and appellants would have been entitled to RPO benefits as well. Reliance was placed on this court’s judgment in “Gujarat Urja Vikas Nigam Limited v. Solar Semi-Conductors Power Limited Company (India) Private Limited” to argue that if the State Commission re-determines the tariff amongst the parties, then the aggrieved party cannot be compelled to continue the said agreement or enter into a new agreement on such increased tariff.
It is further argued that there is no Regulation of the state or central commissions prohibiting a term being incorporated in PPA which permits an option to either party to switch from REC mechanism to Preferential Tariff Mechanism. The impugned order had not considered judgments referred to by the appellants on clauses granting power to one party to cancel the contract. Inthis regard, reliance is placed on “Central Bank of India v Hartford Fire Insurance Co. Ltd” and “Her Highness Maharani Shantidevi P Gaikwad v Savjibai Haribai Patel & Ors.”
RESPONDENT’S CONTENTION
Mr Shyam Divan and Mr Dhruv Mehta learned senior counsels appearing for the first two respondents urged that State Commission had jurisdiction in the present case. Reliance was placed on the definitional clause of the PPA (Article 1.1) to submit that commission meant ‘State Commission’. It was urged that in terms of the extant regulatory framework, (which provided for regulatory oversight by the appropriate commission), PPAs executed by generating companies and distribution licensees necessarily required approval by the appropriate commission. Firstly, Section 86(1)(b) of the Act specifically vests the State Commission with the power to regulate the electricity purchase and procurement process of distribution licensees including the price at which electricity shall be procured from the generating companies. Secondly, under the Multi-Year Tariff Regulations, 2011 (hereafter “GERC (Multi Year Tariff) Regulations”) notified by the State Commission, PPAs are to be mandatorily approved for them to be considered effective and enforceable.
It was also submitted that Section 86(1)(b) of the Act empowers the state commission to modify, alter or vary the terms of the agreement of PPAs, to ensure their compliance following the regulatory framework established under the Act. It was further submitted that taking into consideration the definition of APPC, it is evident that floor price and forbearance price are dynamic and APPC is associated with the floor price and the forbearance price is also required to be determined on a year-to-year basis so that the guaranteed return to the generators is not affected.
JUDGEMENT
The crisis arising out of, and the enormous environmental cost involved in the continued use of fossil fuels has led governments, the world over, to promote alternative and renewable sources of energy. The rapid growth of renewable energy over the decade and a half has witnessed that solar and wind power are now the cheapest sources of energy in many countries in the world. Once green energy was an expensive alternative, however, it is now helping to reduce energy bills.
The rapidly changing economics of such sources has led, the Union government to realize that solar and other renewables can potentially transform the energy landscape, increase access and help India meet its climate change objectives. Grid transmission capacity has been a barrier; however, distributed and off-grid solar solutions provide a viable solution for increasing energy access. Being dependent primarily on cheap coal-based power generation, traditional thinking on energy has been that increase in renewable energy’s share of electricity generation would further impair local distribution companies’ poor financial situation.
In the present case, this salutary rule was thrown to the wind, by the State Commission. In this court’s opinion, APTEL, in the most cavalier fashion, virtually rubber-stamped the State Commission’s findings on coercion, regarding the entering into the PPA by the parties. There was no shred of evidence, nor any particularity of pleadings, beyond a bare allegation of coercion, alleged against Gujarat Urja. As a judicial tribunal, dealing with contracts and bargains, which are entered into by parties with equal bargaining power, APTEL is not expected to casually render findings of coercion, or fraud, without proper pleadings or proof, or without probing into evidence. The findings of coercion are, therefore, set aside.
Given the foregoing discussion, it is held that the concurrent findings and orders of the State Commission and APTEL cannot be sustained. They are accordingly set aside. The appeals are allowed, with costs payable to the appellants.
Mahajan & Mahajan (“M&M”) is a litigation-focused boutique law firm dedicated to professional excellence, personal and high-quality service and effective, solution-oriented advocacy. They deliver quality work, personalized service and extraordinary value to our Clients.
They are 1st gen litigation-focused young boutique litigation firm with a current team of 5 lawyers primarily practising in Supreme Court, Delhi High Court, District Courts, NCLTs / NCLAT & other Tribunals / Forums. The areas of practice are well diversified, spread across Civil, Criminal Laws, Arbitration and Corporate Laws serving both Corporate Clients Retainers & Individual Clients. They do not believe in specialization and enjoy working in all areas of law except Transactional Work, IPR & Tax. We wish to develop our practice in all interesting spheres of domestic litigation along with international arbitrations.
They are basically looking to onboard lawyers/freshers from select few premier law schools, with an innate talent to be the next crop of senior advocates for in-house training and mentorship to become great litigators and assets within our team for a long-term association.
Requirements
Preference to Candidates residing nearby in South Delhi.
The candidate is required to meet our working style which requires continuous learning, in-depth research, perfection in drafting, wisdom, intelligence, common sense and most importantly an intuitive & out-of-box original thought process.
Candidate must be enrolled with the Bar Council in the years between 2015-2022 or planning to be enrolled in 2023.
Looking for Candidates having good prior long-term and diversified experience in Litigation with reputed offices with PQE 0 to 8 years.
Good Internships will also be appreciated.
Location
W Block, Greater Kailash – 1, New Delhi.
Working Timings
10 am – 8 pm | Even Saturdays off
Open Positions
Multiple
Working Environment
Liberal, Relaxed, Intellectual, Industrious & Ethical. They are settlement oriented and do not believe in the commercialization of litigation but in honest, ethical and competent efforts necessary for expeditious and just adjudication of disputes. Their endeavour is to provide disruptive, loyal and class-leading services to their Clients.
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At Harison And Associates, their attorneys are committed to resolving their client’s legal issues in a timely and cost-effective manner. One can count on them to give your case the attention it deserves and to tailor their approach to the client’s needs. They know how much is riding on the outcome of a case and they strive to help move forward from these problems on favourable terms. Drawing on the diverse backgrounds of their passionate attorneys, they provide comprehensive legal services to every client they represent. Their knowledge and flexibility to address a broad range of legal issues for their clients is the hallmark of their firm.
Responsibilities
Research and analysis: conduct research and analysis on various legal issues – this may involve reviewing case law, statutes, regulations, and other legal documents, as well as analyzing and summarizing the information you find
Drafting documents: work on drafting a variety of legal documents, such as memos, briefs, motions, and contracts and assisting with drafting legal correspondence, such as letters and emails
Attending meetings and court proceedings: attend meetings and court proceedings (this will give you the opportunity to observe how legal professionals interact with clients and present arguments in court)
Communication: communicate effectively with clients, colleagues, and supervisors – this may involve answering phones, responding to emails, and participating in team meetings
Administrative tasks: work on a variety of administrative tasks, such as filing documents, organizing files, and scheduling appointments
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Nayyar Associates has the expertise to ensure your process serving needs are completed in a timely and efficient manner, in accordance with the Rules of Practice regardless of the geographic location. The firm is a leading litigation law firm based in Delhi/NCR and has a presence across India, which has developed a high specialization in the field of client-specific legal counsel. They provide the best legal solutions to our global clients at nominal prices in India. They possess vast experience in all types of Civil, Criminal, Matrimonial and Consumer related litigation. They have highly experienced advocates and highly trained paralegal aids in our litigation team.
Responsibilities
Fundamentals of Document Review
Contract Management
Legal Research and legal drafting
Eligibility
Law students currently in their 4th & 5th year from a recognized university or Candidates awaiting final exam results are eligible to apply for this opportunity.
Perks
Certificate and letter of recommendation will be provided after the completion of the internship.
Mode
Virtual
Application Process
Interested candidates can email their resume at contact@advocatekapilnayyar.com
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For regular updates on more opportunities, we can catch up at-
As we enter the era of digitization, technology has become the backbone of almost everything, from our means of communication to attendance tracking in offices is now seamlessly integrated with technology. It’s no secret that in this day and age, technology is the driving force behind the advancements we see around us. As more companies continue to expand and agreements become increasingly complex, it’s only natural that the contracts themselves should become digitized as well.
Here in India, the rise of online transactions has led to a surge in the use of electronic contracts. These cutting-edge agreements are created and executed through electronic communication and digital signatures, bypassing the need for physical documents or signatures. With this new level of convenience and efficiency, we can now close deals with ease, without having to deal with tedious paperwork or signatures.
What is an E-Contract?
The Indian Contract Act, of 1872[1], defines a contract as an agreement that is enforceable under the law. Section 2(h) of the Act states that for an agreement to be considered a contract, it must meet certain legal requirements. Interestingly, electronic contracts, also known as E-Contracts, adhere to the essence of Section 2(h) while changing the mode of contract formation. In simple terms, E-Contracts are digital agreements that are created, negotiated, and executed without the need for physical paperwork. The parties involved communicate through electronic means, such as the internet or telephonic media, allowing for a meeting of the minds to take place.
E-Contracts save time and are a step ahead of traditional pen-and-paper contracts as they are entirely paperless and created through digital mediums. Through the use of electronic means, such as the internet or telephonic media, the parties involved in E-Contracts are able to communicate effectively, leading to a meeting of the minds. This not only streamlines the negotiation process but also reduces the need for physical meetings, saving time and resources. Unlike traditional pen-and-paper contracts, E-Contracts are created through digital mediums and are completely paperless, making them environmentally friendly and cost-effective. They are a step forward from traditional contracts, as they are efficient, secure, and authentic.
Legal Validity of E-Contracts
Section 10A of the Information Technology (IT) Act, 2008[2] is a significant provision in the Indian legal framework that acknowledges the legitimacy and enforceability of electronic contracts. The IT Act was amended to include this section as a response to the increasing use of digital contracts in commercial dealings.
The introduction of Section 10A of the IT Act clarifies that electronic contracts cannot be considered invalid merely because they exist in electronic format. These contracts hold the same legal value and enforceability as traditional paper contracts. This means that parties entering into an electronic contract have the same legal rights and duties as those in a contract executed on paper. The Act not only recognizes the legality of electronic contracts but also sets out certain conditions for their validity. These conditions include making the contract accessible for future reference and using a reliable and secure electronic signature or authentication method. Additionally, it clarifies that any law which requires a contract to be in a particular form or written shall be deemed satisfied if the contract is in electronic form and meets the requirements specified under Section 10A.
Essentials
There must be a proposal – one party must offer to enter into a contract.
There must be acceptance – the other party must agree to the proposal.
Legal consideration must be there – there must be something of value exchanged between the parties.
Parties must be able to contract – they must have the legal capacity to enter into a contract.
Free consent by the parties – the parties must enter into the contract freely and voluntarily without any coercion or undue influence.
Lawful objective – the purpose of the contract must not be illegal or against public policy.
It is essential for an e-contract to fulfil these criteria in order to be valid and enforceable under the law. Therefore, if all the necessary elements of a contract are present in an electronic agreement, it cannot be invalidated solely on the basis of its digital form, making E-Contracts legally binding and valid. It is crucial to establish the legal validity of an E-Contract to ensure that legal action can be taken in case of any violation of the agreement.
Validity of E-Contracts under the Indian Evidence Act
According to Section 65B[3], any information contained in an electronic record that is either printed on paper, stored, recorded, or copied in an optical or magnetic media produced by a computer, can be deemed to be a document. However, this is subject to certain conditions, including that the electronic record is produced in court in compliance with the provisions of the Indian Evidence Act, and that it is accompanied by a certificate identifying the electronic record containing the statement of the person who had control over the creation of the record.
In essence, Section 65B ensures that electronic records are given the same evidentiary value as physical documents. This provision is particularly significant in the context of electronic contracts, as it reinforces their legal validity and provides parties with a means of proving the existence and terms of an electronic contract in court.
Roles of Parties in an E-Contract
An e-contract usually involves two parties: the originator and the addressee. The originator is responsible for initiating, sending, or creating the electronic message, while the addressee is the intended recipient of the message. The originator could be an individual, a business, or any other organization that initiates electronic communication. They can send an e-contract proposal to the addressee through various electronic channels such as email, messaging platforms, or an online contract management system.
The addressee, on the other hand, may also be an individual, a business, or any other entity that receives the proposal from the originator. Once the addressee receives the proposal, they may choose to accept, reject, or make a counterproposal based on the terms and conditions of the e-contract and the negotiation process between the parties.
Kinds of E-Contracts
The main types of contracts are:
Shrink Wrap contracts – Contracts that are agreed upon by the end user by opening the product packaging.
Click Wrap contracts – Agreements that are agreed upon by the end user by clicking on an “I agree” or similar button on a website or software.
Browser Wrap contracts – Contracts that are agreed upon by the end user by using a particular website or software.
In addition to these, there are also other types of contracts, such as:
Electronic Data Interchange – It is the type of e-contract that is used in the business-to-business (B2B) context for the automated exchange of business documents.
E-Mail contracts – Agreements that are formed through the exchange of e-mails between the parties.
Comparing Traditional and E-Contracts
Within the legal domain, it is imperative to recognize the fundamental disparity between conventional contracts and electronic contracts. The former entails a tangible signature and is produced on paper, whereas the latter involves the utilization of digital signatures and is created digitally. In addition, the formation of conventional contracts demands the presence of the involved parties in a physical setting, culminating in elevated transaction costs and protracted processes. Conversely, electronic contracts obviate the need for physical presence, resulting in diminished transaction costs and enhanced expediency.
Challenges Associated with E-Contracts
AUTHENTICITY AND SECURITY
E-contracts pose various challenges in their formation and enforcement, including concerns about the authenticity and security of electronic documents. Although the use of electronic signatures and digital certificates can ensure authenticity and security, there is always a risk of fraud, hacking, and unauthorized access to electronic documents. As technology advances and individuals become more knowledgeable about it, there is a risk of malicious use that can compromise the privacy of the public. Parties to e-contracts must take adequate measures to protect their electronic documents from such risks, including but not limited to using secure communication channels, employing encryption techniques, and regularly updating their security protocols.
ENFORCEABILITY
The enforceability of electronic contracts in India hinges on their adherence to the requirements set forth in the Contract Act. Under the Contract Act, parties to a contract must possess the contractual capacity and the agreement must not violate any laws or public policies. Moreover, the contract terms must be lucid and explicit, and the contract must have consideration.
In India, there have been several instances where the enforceability of e-contracts has been challenged in courts of law. One such example is the Trimex International FZE Limited v. Vedanta Aluminum Limited (2010)[4] case, in which the court upheld the enforceability of an electronic contract, despite the absence of a physical signature. The court declared that the usage of digital signatures and the presence of a valid offer and acceptance satisfied the prerequisites laid out in the Contract Act.
JURISDICTION
One of the most significant challenges in the realm of electronic contracts pertains to jurisdiction and choice of law. Electronic contracts are frequently established across different jurisdictions, with the involved parties potentially operating under distinct legal systems. Therefore, the clauses regarding jurisdiction and choice of law must be meticulously crafted to ensure that the parties agree on the applicable law and forum for dispute resolution. Failure to properly address these clauses could result in one party being subjected to laws with which they are unfamiliar, potentially leading to non-compliance and undesirable legal ramifications. As such, it is imperative for parties involved in electronic contracts to engage in thoughtful deliberation regarding jurisdiction and choice of law clauses to minimize potential conflicts and disputes.
Present Dilemmas
AUTOMATED CONTRACTS IN E-COMMERCE
The proliferation of artificial intelligence and machine learning in e-commerce has led to the formation of contracts through automated systems, raising pertinent legal questions regarding their enforceability. The primary concern revolves around whether contracts formed without any human intervention are legally binding and enforceable. With the increasing use of automated systems, it is essential to evaluate the validity of these types of contracts and determine if they adhere to the requirements set forth by contract law. The development of these automated systems has also prompted the need for a clear legal framework to ensure that parties involved in such contracts are adequately protected. Thus, there is a pressing need for legal guidelines and regulations to facilitate the formation, validity, and enforcement of contracts through automated systems.
ONLINE DISPUTE RESOLUTION
One of the challenges in the enforcement of e-contracts is the possibility of disputes arising between the parties involved. In order to address this issue, there is a need for a mechanism for online dispute resolution, similar to the physical systems that exist for resolving disputes. With the increasing use of technology in e-commerce, the use of online dispute resolution can provide a cost-effective and timely solution to resolve disputes in the same medium in which the contract was formed. This would not only save time and money for the parties involved but also promote trust and confidence in the use of e-contracts.
DATA PRIVACY
E-contracts often entail the collection and processing of personal data, which can potentially be accessed by individuals with sufficient technological expertise. It is essential that the use of such data complies with applicable data protection laws, including the General Data Protection Regulation (GDPR)[5] in the European Union and the Personal Data Protection Bill in India, to safeguard the privacy and security of individuals. Adherence to such laws can help ensure that personal data is processed lawfully and transparently, and that appropriate measures are taken to protect against unauthorized access, theft, or misuse of personal data.
FORCE MAJEURE
It is imperative to update the force majeure clause in e-contracts to account for unforeseeable events that could impede contract performance. Traditionally, force majeure provisions applied to uncontrollable events, such as natural disasters, wars, or labour strikes that were unforeseeable at the time of contract formation. However, given the increasing reliance on technology in conducting business, it is vital to include potential disruptions caused by cyber-attacks, technology failures, or similar events. Thus, it is necessary to include provisions in the force majeure clause that explicitly describe the effect of such events on contract performance, to ensure that e-contracts remain valid and enforceable in these scenarios.
Conclusion
In the contemporary era, the prevalence of e-contracts has become ubiquitous, making it arduous to avoid or anticipate their eventual dominance over traditional contracts. The digital age has witnessed the widespread adoption of e-contracts as a customary mode of contracting. The legal framework governing the formation and enforcement of e-contracts is underpinned by legal principles and statutory provisions. Provided that they satisfy legal requisites, e-contracts are enforceable to the same degree as paper-based contracts. However, the realm of e-contracts poses distinctive challenges, including concerns related to the legitimacy and security of electronic documents, as well as issues related to jurisdiction and choice of law. To ensure the enforceability and validity of e-contracts, parties must implement appropriate measures to mitigate these challenges. Although e-contracts offer notable advantages in terms of expediency and efficiency, parties must remain vigilant to address unconventional challenges. Given that technological progress is inevitable, it is vital for parties to e-contract to be cognizant of these challenges and take appropriate steps to address them.
Endnotes:
The Indian Contract Act, 1872, Act No. 9 of 1875
The Information Technology (Amendment) Act, 2008, Act No. 10, Acts of Parliament, 2009 (India).
The Indian Evidence Act, 1872, Act No. of 1872
Trimex International Fze Limited v. Vedanta Aluminium Limited, 2010 (1) S.C.C. 574 (India)
In this case, the appellant (hereafter ‘HUL’) has filed the present appeal impugning a judgement dated 09.11.2021 passed by the learned Single Judge of this Court whereby the appellant abstained from publishing a print advertisement and airing three YouTube videos. These advertisements for the toilet cleaner sold under the tradename ‘Domex’ were found tobe, prima facie, disparaging the toilet cleaner sold by the respondent (hereafter ‘Reckitt’) under its trademark ‘Harpic’. HUL claims that the impugned advertisement and videos truthfully depict that the effect of its product lasts longer than Reckitt’s product. Reckitt disputes the claims made by HUL and complains that the impugned advertisements andvideos are misleading and disparaging.
FACTS:
HUL is a company established in India and is engaged in manufacturing, marketing andselling various consumer products, including toiletries, floor cleaners, toilet cleaners, toilet soaps, washing, and detergents. Reckitt has been manufacturing a well-known toilet cleaner under India’s trademark ‘Harpic’. According to Reckitt, Harpic is India’s most widely used toilet cleaner brand. In 1979, Reckitt became the registered proprietor of the word ‘HARPIC’. The aforementioned trademark registration is valid and subsisting as of date. Reckitt has alsoobtained a registration for the shape of the bottle used for packaging ‘Harpic’ brandedproducts in India. Reckitt claims that since the launch of Harpic, the shape of the bottle has become a source identifier for its product.
HUL also manufactures and markets a toilet cleaner under the trademark ‘Domex’. It claimsthat Domex is superior to Reckitt’s Harpic in fighting bad odour. HUL has been granted apatent for using a technology that involves the use of a chemical compound called ‘Saline’,which enhances the malodour fighting capabilities by extending the period of itseffectiveness.
HUL also ran an advertisement campaign with the message that its product fights malodourfor an extended time. The advertisement campaign included the impugned advertisement,videos and a TV Commercial. On 26.07.2021, Reckitt instituted the aforementioned suitclaiming that the TV Commercial, impugned advertisement and the impugned videos weredisparaging its product (toilet cleaner) sold under the brand name ‘Harpic’. An applicationseeking interim relief was also filed by Reckitt restraining HUL from publishing ortelecasting the impugned advertisement and the impugned videos. The said application was disposed of by the impugned judgment dated 09.11.2021. The learned Single Judge held that prima facie, the impugned videos seek to denigrate and malign HUL’s product by depictingReckitt’s Harpic bottle as an ordinary toilet cleaner. However, both parties assailed the impugned judgment. This Court found that the learned Single Judge was wrong in drawing aprima facie conclusion that the TV Commercial did not belittle Reckitt’s product.Accordingly, this Court restrained
HUL from airing the TV Commercial. The present appeal is confined to the impugnedadvertisement (published in a newspaper) and the impugned videos (three videos broadcastedon YouTube).
APPELLANT’S CONTENTIONS:
In this case (HUL), the appellant contended that the learned Single Judge had misjudged inassuming that the impugned videos denigrated any product. The plot of the impugned videosmerely promoted HUL’s product sold under the brand name ‘Domex’ and did not disparageany other product. It was wrongly stated that the generic shape of the toilet cleaner bottle, asshown in the impugned videos, depicted Reckitt’s product. Furthermore, the impugned videoscontained a disclaimer stating that the ordinary toilet cleaner did not use water-repellenttechnology. Reckitt’s claim that it had a registration regarding the shape of the bottle was alsocontested. He referred to the documents, which reflected the trademark status as filed byReckitt and submitted that the registration to obtain a trademark was regarding the devicemarks as depicted on the bottle and not the shape. There were various similar products sold inbottles that were broadly similar to the shape of the toilet cleaner bottle shown in theimpugned videos as a representation of an ordinary toilet cleaner.
In the present case, HUL had produced test reports, which established that HUL’s product hada better odour-fighting ability. The learned Single Judge had erred in disregarding the said testreport. Insofar as the impugned advertisement is concerned, the impugned advertisementexplains that the Fresh-Guard technology used in Domex works to fight off bad smells for alonger period of time. The impugned advertisement intended to put forth the claim, whichwas neither untrue nor disparaging.
RESPONDENT’S CONTENTIONS
From the respondent’s side (Reckitt), the impugned advertisement depicted that the side ofthe toilet bowl, which Harpic cleaned, was smelly and emanated a foul odour. Thus, this is aclear case of disparagement. HUL’s claim that its product is superior is untrue. HUL’s claim isbased entirely on using a chemical compound called ‘Saline’, which makes the hard surface of the toilet bowl hydrophobic. It overlooks the effect that the toilet bowls are made of ceramic and has a smooth surface, making them hydrophobic. Even if the odour-causing liquid does not stick to the side of the toilet bowl, it would collect in the water body below and would not reduce the smell. Thus HUL’s product does not have any additional advantage in that regard. HUL’s claim that it uses a patented technology was also misleading, as the Patent Office rejected several of the claims regarding the anti-microbial effect.
Further, the claim that HUL’s product is effective for longer was also rejected. It was alsocontended that Reckitt got third-party laboratories to conduct tests and the malodour intensityresults, which showed no difference between HUL’s product (Domex) and Reckitt’s product(Harpic). Both products were effective in cleaning germs at the time of usage but wereineffective after subsequent wash cycles.
The respondent argues that the impugned advertisement and videos must be viewed not in thecontext of literal truth but by the honesty of the message they convey. In the present case, themessage given by the impugned advertisement and videos is untruthful.
JUDGEMENT:
The application filed by Reckitt was disposed of by the impugned judgment dated 09.11.2021wherein it was held that prima facie, the impugned videos seek to denigrate and defameHUL’s product as they depict Reckitt’s Harpic bottle as an ordinary toilet cleaner. It was also noted that the shape of the bottle was a registered trademark of Reckitt and, accordingly, restrained HUL from broadcasting the impugned videos in any form till HUL removed all reference to Reckitt’s product ‘Harpic’ or the bottle in question. Insofar as the impugned advertisement is concerned, HUL was restrained from publishing the same.
It is not necessary that an advertisement must expressly mention the competitor’s product. Itwill be impermissible if the disparaged product is likely to be identified as that of a rival. InHindustan Lever Ltd. v. Colgate Palmolive (India) Ltd. & Anr., the appellant had telecastedan advertisement regarding toothpaste, claiming it would be more effective in combatting germs. The TV Commercial characters did not mention the respondent’s product (ColgateToothpaste). It merely showed a lip movement by a child in the TV Commercial, which could be identified as pronouncing ‘Colgate’.
Further, a jingle was played in the background, which could be identified as that from therespondent’s advertisement. This was sufficient to establish that the appellant indirectlyreferred to its rival’s product, ‘Colgate Toothpaste’. Similarly, in the case of M/s ColortekMeghalaya, a depiction of a red toothpowder was found to be referring to the appellant’stoothpowder.
Thus it has been agreed upon that the shape of the bottle, as depicted in the impugned videos,is deceptively similar to Reckitt’s trademark. Undisputedly, the case lies in favour of Reckitt.A false advertisement campaign would cause irreversible loss to Reckitt. In contrast, forHUL, postponing the broadcast of an advertisement referring to Reckitt’s product may not have any material effect on them, considering that it is free to advertise its product without reference to Reckitt’s products.
Given the nature of the controversy and the facts, the learned Single Judge has merelydirected HUL to remove all references to Reckitt’s product, and the bottle representing ordinary toilet cleaners as the same is identifiable with Reckitt’s product – Harpic. For the above reasons, no infirmity is present with the impugned judgment.
