a Catalogue of Legal solutions

Jalan’s
Legal Referencer


Dear Citizens of India,

Our Life security and progress are sought to be secured through enacted Laws and its enforcement and, I felt the need to throw some light on laws of the land which are enacted to secure our life and property, and the enforcement machinery available, to enforce said laws of the land.

This is a Legal Referencer wherein most pressing / critical and common issues of our society have been identified, with all probable legal remedy which may be pursued to redress the issue is suggested herein in this Referencer; and insight to the suggested legal remedy and the procedure to pursue the legal remedy is provided in the respective chapter and in the standard draft.

Before I begin with, it may be useful to trace the roots of historical relationship between State & Citizens, and may be essential to understand and to trace the evolution and development of law, the emergence of concept of democracy, and to trace the origin of today's concept of “Citizens” & the “State”.

“State” in legal parlance implies the Nation; and the Constitution of India in Article 12 defines the “State” as every Public Authority / State Govts / Central Govts / Local Bodies / any other instrumentality of aforesaid Govts / Statutory Corporations, including private entities but discharging functions of keen public importance.

At the advent of Human Civilization, ‘Men’ were Sovereign in their own, in the sense that, they were free and were not subject to or bound by any law. Then, men were Ruled by their own conscience and not by codified laws and were even free to the extent of inflicting violence at their will & strength, i.e. Might is right was the scene. Men were guided by own conscience and greed. An action not emanating from reason and the freedom to do as one pleases.

Great Philosopher Thomas Hobbes (1588- 1671) says that prior to concept of Statehood, the man lived in chaotic conditions of constant fear. The life in the state of nature was solitary, poor, nasty, brutish and short. For getting self protection and avoiding misery and pain, man voluntarily entered into a contract and surrendered their part of freedom to some might authority, who could protect their lives and property, which emerged later on as the ruler and which ultimately culminated into the shape of the State.

With the great passage of time and centuries together, codified laws evolved and were introduced in human life. Men came together, they voluntarily surrendered their individual sovereignty to State sovereignty, and opted to subject themselves to laws of the land, however, they were promised, in return, the governance by codified laws. The governance by codified laws sought to promise the safety of their life & their property and also sought to guarantee the general dignity inherent in human person alongwith guarantee that he will not be discriminated. This is how the ancient Social contract between Men & State came into being.

Main thrust of the legal brains emphasizing on codification of laws has been firstly, as a means of attainment of human perfection and secondly to secure liberty to individuals in the society. They all considered liberty as the first pre-requisite for the development of human personality. In their view, a State is like a family to which the interests of its members are always dear at heart, like a family which would not be happy if its members are in difficulty, want or trouble, like a family which would not interfere unnecessarily with the free choice of its members.

And therefore, in the backdrop of ancient social contract, every Society & every Individual Citizen has certain basic assumptions to take it for granted from the State that-

(i) His Life & Property will be protected and his liberty will be secured;
(ii) He can appropriate for his own use what he has created by his own labour and what he has acquired under the existing economic order;
(iii) That others will act with due care and will not cast upon him an unreasonable risk of injury;
(iv) That others will not commit any intentional aggression upon him;
(v) That people with whom he deals will carry out their undertakings and will act in good faith;
(vi) That he will have security as a job holder;
(vii) That State will bear the risk of unforeseen misfortune;
(viii) That State will bear the burden of supporting him when he becomes aged;
(ix) That complaints made to “State” will be attended with due care and attention and is duly replied.

Among various definitions of “State” given by Scholars of law and by Philosophers, this appears to be more satisfactory and convincing. It is by professor Goodhart. He defines State in terms of its purpose. He states that the purpose of society which we call a State is to maintain peace and order within a demarcated territory. THE MINIMUM AND ESSENTIAL PURPOSE OF THE STATE IS TO MAKE LIFE POSSIBLE

Hugo Grotius (1583-1645) is regarded as the father of philosophical jurisprudence. He said- it is the first duty of the Sovereign State to safeguard the citizen because State was given power only for that purpose.

Good governance signifies the way “State” ameliorates the standard of living of the members of its society by creating, and making available, the basic amenities of life; providing its Citizens security and the opportunity to better their lot; instills hope in their hearts for a promising future; providing, on an equal & equitable basis, access to opportunities for personal growth; affording participation and capacity to influence, in the decision-making in public affairs; sustaining a responsive judicial system which dispenses justice on merits in a fair, unbiased and meaningful manner; and maintaining accountability and honesty in each wing or functionary of the “State”.

In a democracy, forms and degree of accountability may vary but the basic idea remains the same that the holders of Public Office must be publicly able to justify their exercise of power not only as legally valid but also socially wise just and reasonable, chiefly designed to add something more to the quality of life of its Citizens.

In many respects, we now live in a society that is only formally democratic, as the great mass of citizens has minimal say on the major public issues of the day, and such issues are scarcely debated at all in any meaningful sense in the electoral arena and where critical decisions are taken in closed chambers of Ministers & Bureaucrats.

Just because we cannot see clearly the end of the road, that is no reason for not setting out on the essential journey of law towards justice. The law is not dead, is only slept.

AN AGGRIEVED'S ACT OF SEEKING “COURTS' INTERVENTION”, IN FACT, IS AN APPEAL TO THE JUDICIAL CONSCIENCE OF THE SITTING JUDGE, TO DO THAT - WHICH ALL PRUDENT MAN WILL DO, IN THE FACTS OF THE CASE. DISPENSING JUSTICE IS NO ROCKET SCIENCE.

DISCLAIMER
Though due care has been observed in framing this WRITE UP, yet some discrepancies may have certainly entered in. This write up is framed with the limited understanding of the author. There is every likelihood that the suggestions made by author and legal views contained in CHAPTERS / STANDARD DRAFT, may turn out to be inappropriate / incorrect. This Write up will be regularly updated with the development of law and better understanding of the author.

In the circumstances, it is expressly agreed between Readers and this author that this author incurs no liability of whatsoever nature, if a reader claims to have incurred any loss of any nature, while using this Referencer. It is a criminal offence for making false charge / claim against any person or institute false criminal proceedings, in the court of law and is punishable under section 209 and 211 of Indian Penal Code(IPC), 1860, respectively; and whoever will make any such false charge / claim or institutes false criminal proceedings against the Author herein, shall be deemed to have committed the offence contemplated under aforesaid section 209 or 211 of IPC, 1860. A person may also be subject to damages for instituting false claim in the Court of law.

The readers are clearly and strongly advised to obtain guidance of Legal experts or of any other person as they think fit, before they act upon the suggestions made in this write up. It is also requested that if a reader finds any discrepancy, or has any suggestion to improve upon this, may please kindly mail me at legallyspeaking.jalan@gmail.com

ALL RIGHTS RESERVED.

SUBJECT TO EXCLUSIVE / ONLY MUMBAI JURISDICTION.

AND, IF YOU FIND THIS USEFUL, CONSIDER IT TO SHARE WITH YOUR DEAR ONES.
Thanks.
Sandeep Jalan, Advocate,
32 Rajpuria Baug,
N P Thakkar Road,
Vile Parle East,
Mumbai – 400057.
India.

(AA)
WHEN GRIEVANCE IS AGAINST ANY GOVT / STATUTORY / MUNICIPAL AUTHORITY / ANY PUBLIC AUTHORITY / PUBLIC OFFICER / TO ENFORCE THEIR LEGAL OBLIGATIONS – depending upon the nature of one’s case, the likely Remedies may be –

(i) Subject to availability of statutory remedy provided under the law, a complaint / Notice may be recorded to the concerned Public authority OR to its Regulating Authority / to the “State”, followed by filing Writ Petition in the respective High Court.
[PLEASE REFER CHAPTER 14; STANDARD DRAFT 1, 2, 3, 3A, 4, 5, 6, 7, 8, 9, 10, 11]

(ii) In the alternative of pursuing aforesaid Writ remedy, or those who have not immediate access to High Court, may file a Civil Suit before the District Court, for the relief of Mandatory Injunction, as defined under Section 39 read with Section 2(a) of the Specific Relief Act, 1963, or Declaration as contemplated under section 34 of the Specific Relief Act, 1963, seeking necessary reliefs. But before filing Civil Suit against any Public authority / officer, one is obliged to give notice under section 80 of CPC, 1908, to the concerned Public authority / officer. However, in urgent situation, one can file the Suit without issuing the said notice, specifying therein the reasons for urgency in filing the Suit.
[PLEASE REFER CHAPTER 2 & 15; STANDARD DRAFT 1 & 12]

(iii) Where it is alleged that a Public Officer is occupying a Public Office although he/she does not satisfy the qualifications prescribed for holding that Public office, then a Writ of Quo Warranto may be filed in the respective High Court for the removal of that Public Officer.
[PLEASE REFER CHAPTER 14; STANDARD DRAFT 13]

(iv) A complaint may be recorded to Anti corruption agencies like CBI, ACB, CVC, followed by a Writ Petition in the respective High Court if these aforesaid Agencies doesn’t act on the Complaint.
[PLEASE VISIT RESPECTIVE WEBSITE] [PLEASE REFER STANDARD DRAFT 1 & 2]

(v) A complaint may be recorded to Human Rights Commission, followed by a Writ Petition in the respective High Court if the said Human Rights Commission doesn’t act on the Complaint.
[PLEASE REFER CHAPTER 16; STANDARD DRAFT 14, 2]

(vi) Where grievance is against a particular Public servant, then depending upon the nature of alleged illegal acts of said Public Servant, FIR to Police under Section 166, 167, 217, 218, 221, 409 or under any other Section of IPC 1860 may be made, or an Application u/s 156(3) to the Magistrates Court or a Complaint may be made before competent Magistrates Court under section 200 of CrPC, 1973.
[PLEASE REFER CHAPTER 3 & 17; STANDARD DRAFT 15 & 16]

(vii) Where the grievance is in particularly relating to “Public Nuisance”, then a complaint may be recorded to District Magistrate (Collectorate of the District) / Commissioner of Police (in Metropolitan areas), under section 133 of CrPC, 1973. Refer Landmark SC Judgment - Ratlam Municipality versus Vardichand, year 1980.
[PLEASE REFER CHAPTER 3; STANDARD DRAFT 17]

(viii) An RTI application may be made, thereby seeking information as what action has been taken on the complaint made, so as to compel Public servants to perform their duties.
[PLEASE REFER CHAPTER 19; STANDARD DRAFT 18]

(ix) A Writ Petition may be filed in the respective High Court for seeking damages / compensation, if the alleged “inaction” of the public authority / public officer has resulted in frustration / deprivation of “life and liberty” of any person, as guaranteed under Article 21 of Constitution of India.
[PLEASE REFER CHAPTER 14; STANDARD DRAFT 5]

(x) A civil suit for seeking damages / compensation may be filed in the District Court / High court, if the alleged “inaction” of the public authority / public officer has directly resulted in manifest loss of property or reputation of the aggrieved citizen.
[PLEASE REFER CHAPTER 2 & 15; STANDARD DRAFT 1 & 12]

(xi) Where the Public authority is discharging quasi judicial function or if one is aggrieved by the illegal notice / order passed by any Public authority; or is aggrieved by the fact that a Public authority has not given proper hearing / opportunity of presenting his case; or if the said authority is acting illegally in any manner, then,
PLEASE REFER POINT LL, MM STATED HEREINAFTER. [PLEASE REFER CHAPTER 6]





(BB)
WHEN FACING ILLEGALITIES OF POLICE – HERE FOUR KIND OF ILLEGALITIES HAVE BEEN IDENTIFIED


ILLEGALITY NO.1 – WHEN POLICE REFUSE TO REGISTER FIR / COMPLAINT

(i) Approaching the Superintendent of Police or the Commissioner of Police (in Metropolitan areas) and recording the complaint with him.
[PLEASE REFER CHAPTER 17; STANDARD DRAFT 15]

(ii) An Application can be made under section 156(3) read with section 190 of CrPC, 1973, before the Judicial Magistrate / Metropolitan Magistrate, seeking relief, thereby Magistrate directing the Police to register the FIR, Investigate the case and file the Report / chargesheet.

(iii) If the complainant has substantial evidence against the accused person, and if he is prepared to handle the prosecution of the accused person, then, he may prefer an oral / written Complaint before Judicial Magistrate / Metropolitan Magistrate under section 200, seeking relief, thereby Magistrate may directly issue summons to the person made accused in the complaint u/s 204 or may summons witnesses of the complainant before issuing summons to the persons made accused in the complaint u/s 202.
[PLEASE REFER CHAPTER 3 & 17; STANDARD DRAFT 15 & 16]

(iv) A Writ Petition in the respective High Court may be filed for the issuance of Writ of Mandamus against the defaulting Police officers, directing them to show cause why they have not registered the FIR.

(v) An Application can be made under section 156(3) as stated hereinabove, or a complaint u/s 200 as aforesaid, against those Police officers who have refused to register FIR, can be registered before Judicial Magistrate / Metropolitan Magistrate, for Police having committed offence under section 217 of IPC, 1860.
[PLEASE REFER CHAPTER 3 & 17; STANDARD DRAFT 15 & 16]

(vi) A Contempt Petition (Civil) can be filed against Police officers who have refused to register FIR. There are series of High Courts and Supreme Court Judgments which clearly mandates that Police must register FIR whoever comes to them, with a Complaint that discloses a Cognizable offence. The Contempt proceedings are held only in High Courts and in Supreme Court. Also, refusing to register an FIR amounts to Criminal contempt of the court. If criminal contempt is preferred, then permission of the Advocate General of the respective State Govt must be obtained before filing Criminal Contempt Petition, or in the alternative, after filing of Criminal Contempt Petition, the concerned High Court may be requested to take Su Moto Cognizance of the alleged criminal contempt of the Court.
[PLEASE REFER CHAPTER 20; STANDARD DRAFT 19]

(vii) As aforesaid, an application u/s 156(3) or complaint under section 200, to Judicial Magistrate / Metropolitan Magistrate, can be made where if the alleged offence is defined as Non Cognizable (NC) offence in the Act.
[PLEASE REFER CHAPTER 3; STANDARD DRAFT 16]

(viii) A Writ Petition may be filed in respective High Court for seeking damages / compensation, if the “inaction” of the Police on the complaint / non registration of FIR, has resulted in frustration / deprivation of “life and liberty” of any person, guaranteed under Article 21 of Constitution of India.
[PLEASE REFER CHAPTER 14; STANDARD DRAFT 5]

(ix) A civil suit for seeking damages may be filed in the District Court / High court, if the “inaction” of the Police on FIR / Complaint has directly resulted in manifest loss of property.
[PLEASE REFER CHAPTER 2 & 15; STANDARD DRAFT 1 & 12 ]



ILLEGALITY NO.2 – WHEN FALSE FIR IS REGISTERED; AND ARREST IS ANTICIPATED – THEN DEPENDING UPON THE PECULIAR FACTS OF EACH CASE,
FOLLOWING ACTION MAY BE TAKEN –

(i) Recording a letter to the concerned Police station where the false FIR is filed, with a copy to Superintendent of Police or Commissioner of Police, advising the Police authority that in case the Police intends to arrest the Person named in the false FIR, then they should scrupulously / strictly follow the due process of law and strictly adhere to the guidelines framed by SC in the Joginder Kumar case. The said guidelines, on the specific directions of the Supreme court in the aforesaid judgment, are issued by DGP of each State to all the Police stations in the State.
[PLEASE REFER CHAPTER 3; STANDARD DRAFT 20]

(ii) Obtaining Anticipatory Bail from Sessions court or High Court under section 438 of CrPC, 1973.
[PLEASE REFER CHAPTER 3; STANDARD DRAFT 21]


(iii) In lieu of Application for Anticipatory Bail, a Writ Petition in the respective High Court under Article 226 of Constitution of India may be filed, seeking a Writ of Mandamus, thereby the HC directing the Police authorities to scrupulously follow the due process of law and strictly adhere to the guidelines framed by SC in the Joginder Kumar case, in case the Police intends to arrest the Petitioner (the person named in the FIR).
[PLEASE REFER CHAPTER 3 & 14; STANDARD DRAFT 22]


(iv) As aforesaid, an application u/s 156(3) or complaint under section 200, to Judicial Magistrate / Metropolitan Magistrate, against those Police officers who have “knowingly” registered false FIR / or have falsely arrested / or if are falsely prosecuting the case, alleging therein your complaint that said Police officer have committed the offence defined under section 218 and 220 of IPC, 1860. Nevertheless, a regular FIR can also be lodged against the said Police officers u/s 154.
[PLEASE REFER CHAPTER 3; STANDARD DRAFT 16]


(v) A Writ Petition under Article 226 of Constitution read with Section 482 of CrPC, 1973 may be filed, before respective High Court, for High Court in the exercise of their inherent powers, to quash the said false FIR.
[PLEASE REFER CHAPTER 3 & 14; STANDARD DRAFT 23]


(vi) Where the chargesheet is filed by the Police before the competent Magistrates court, the innocent accused person may file a discharge Application before the concerned Magistrates court under section 239 of CrPC, 1973 as may be applicable. Where the case is committed to Sessions Court, then the discharge Application can be filed before the Sessions Court u/s 227 of CrPC.
[PLEASE REFER CHAPTER 3; STANDARD DRAFT 24]


(vii) It is a criminal offence under section 182 and 211 of IPC, 1860 to knowingly register a false complaint against any person. In such cases the innocent person cannot register FIR, but (a) A complaint can be made to the Police officer to whom false complaint has been made, or complaint can be made to a higher authority of the said Police officer, about the filing of said false complaint, and the concerned Police officer or the higher authority, is empowered to file the case against the person who has made false complaint to the Police; (b) A compliant u/s 200 of CrPC can be made before the competent Magistrate court alleging that certain person has made false accusation.

(viii) Where, in pursuance to said false complaint, criminal proceedings before the court have been initiated, then, an Application under section 340 read with section 195 of CrPC 1973, may be preferred before the said Magistrate / Sessions court, against those persons, praying therein for Magistrates court to refer the said offence of false accusation to the appropriate / competent Magistrate Court of jurisdiction. (IPC Section 182: False information, with intent to cause public servant to use his lawful power to the injury of another person. IPC Section 211: False charge of offence made with intent to injure.)
[PLEASE REFER CHAPTER 3 & 11; STANDARD DRAFT 25]


(viii) where the Magistrates Court acquits the person against whom false FIR / Complaint is made, Compensation may be sought under section 250 of CrPC, 1973, from that Magistrates court, against the persons who have knowingly filed false FIR / complaint.
[PLEASE REFER CHAPTER 3; STANDARD DRAFT 26]





ILLEGALITY NO.3 – WHEN POLICE ILLEGALLY ARREST –

(i) Whenever Police intends to arrests any person, among other things, it is obligatory upon police (a) to clearly inform him about the offence he is alleged to have committed; (b) the Police are obliged to immediately inform to any of the friend or relative of the arrested person about the arrest of that person. The arrested person or his relative / friend may record a Letter to the concerned Police station, stating therein about the position of law as regards to restrictions in powers of arrests, and that the Police officer effecting arrest is not following the mandate of law and knowingly disregarding the guidelines framed by SC in the case of Joginder Kumar versus State of U.P., 1994, for effecting arrests, and thereby advising the Police to release the arrested person forthwith. Relevant sections pertaining to powers of arrests and bail are 41, 57, 157, 167, 172, 389, 436, 437, 438, 439 of CrPC, 1973. The SC guidelines, before arrests is provided in the case of Joginder Kumar and SC guidelines after effecting arrests is provided in the case of D K Basu versus State of West Bengal.
[PLEASE REFER CHAPTER 3; STANDARD DRAFT 27]


(ii) The relative / friend of the arrested person may file a Writ Petition of Habeas Corpus before respective High Court for the alleged illegal arrest and seeking immediate release of the person illegally arrested.
[PLEASE REFER CHAPTER 14; STANDARD DRAFT 28]


(iii) Any person who is arrested must be produced before the nearest Judicial Magistrates court within 24 hours of his arrest. When the arrested person is produced before the Judicial Magistrates, the arrested person or his relative / friend may present a Bail Application seeking Bail before concerned Magistrates Court and inform the Magistrate, among other things, that the said arrest is patently illegal, for being effected without following the due process of law and in willful disregard / defiance of guidelines framed by SC in the case of Joginder Kumar versus State of U.P., 1994.
[PLEASE REFER CHAPTER 3 & 21; STANDARD DRAFT 29]


(iv) If one cannot go to High Court for Writ Petition of Habeas Corpus, then, either by personally approaching or by making an Application to State Human Rights Commission, National Human Rights Commission; by making an Application to the Registry of the Supreme Court and also to respective High Court, stating therein about the said illegal arrest effected, in willful disregard of the directions given by the SC in Joginder Kumar case; followed by an RTI Application to State Human Rights Commission, National Human Rights Commission, to the Supreme Court and to respective High Court, on steps taken by them in pursuance to said RTI Application. Life and Liberty clause under RTI may be invoked to obtain information within 48 hours.
[PLEASE REFER STANDARD DRAFT 31, 32 & 33]


(v) Writ of Mandamus may be preferred before respective High court seeking exemplary Damages / Compensation from respective State Government, but only after the High Court in the Writ of Habeas Corpus, OR the concerned Magistrates Court had released the accused, and recording in his Order that the said arrests was illegal, OR the concerned Human Rights Commission comes to the conclusion that the said arrest was illegal.
[PLEASE REFER CHAPTER 14; STANDARD DRAFT 5]

(vi) A Contempt Petition (Civil) before respective High court can be filed alleging therein that the Police illegally arrested the Petitioner in willful disobedience / defiance to SC guidelines framed in aforesaid Joginder Kumar case.
[PLEASE REFER CHAPTER 20; STANDARD DRAFT 19]


(vii) An FIR to Police / direct complaint before Magistrates Court u/s 200 of CrPC, 1973, may be preferred against the concerned Police officer who have illegally arrested and has thereby committed the offence defined under Sections 220 and 342 of IPC 1860. [PLEASE REFER CHAPTER 3 & 17; STANDARD DRAFT 15 & 16]




ILLEGALITY NO.4 – WHEN POLICE NEGLECTS TO INVESTIGATING THE CASE.

(i) Writ Petition under Article 226 of Constitution of India, may be made to the respective High Court, thereby HC directing the Police to make thorough investigation, or directing the State Govt to refer the case to an independent agency like CBI or CID for thorough investigation.
[PLEASE REFER CHAPTER 3 & 14; STANDARD DRAFT 35, 36]

(ii) An Application u/s 156(3) as aforesaid, before the Judicial Magistrate / Metropolitan Magistrate, for directing the Police to carry out proper investigation and file Report; or complaint u/s 200 before Judicial Magistrate / Metropolitan, for Hon’ble Magistrate to cause an Inquiry u/s 202 into the case himself or may direct an Investigation by a particular Police officer as the Magistrate thinks fit.
[PLEASE REFER CHAPTER 3; STANDARD DRAFT 16]

(iv) An FIR u/s 154 or complaint under section under section 200 of CrPC, 1973, can be made before Judicial Magistrate / Metropolitan Magistrate against those Police officers u/s 217, 221 of IPC, 1860, who have deliberately and dishonestly neglected to investigate the case.
[PLEASE REFER CHAPTER 3 & 17; STANDARD DRAFT 15 & 16]


(v) A Writ Petition may be filed in respective High Court for seeking damages / compensation, if the “inaction” of the Police in investigating the case has resulted in frustration of “life and liberty” of a person, guaranteed under Article 21 of Constitution of India.
[PLEASE REFER CHAPTER 14; STANDARD DRAFT 5]

(vi) A civil suit for seeking damages may be filed in the District Court / High court, if the “inaction” of the Police has directly resulted in manifest loss of any property.
[PLEASE REFER CHAPTER 2 & 15; STANDARD DRAFT 1 & 12 ]




(CC)
WHEN A CHEQUE IS DISHONOURED –
depending upon the nature of one’s case, the likely Remedies may be

(i) If there exist any Arbitration clause in the Contract / Agreement / Invoice or in the absence of Arbitration clause, by consent of the other side, one may adopt Arbitration proceedings for the recovery of cheque amount..
[PLEASE REFER CHAPTER 27]

(ii) A Summary Suit, contemplated under Order XXXVII of Civil Procedure Code, 1908, in the respective High Court or in the District Court, can be filed for the recovery of said dishonoured cheque amount.
[PLEASE REFER CHAPTER 23; STANDARD DRAFT 37]

(iii) Issuing statutory Notice under Section 138 of Negotiable Instrument Act 1881, followed by filing Criminal Complaint to the Judicial Magistrate / Metropolitan Magistrate u/s 200 of CrPC.
[PLEASE REFER CHAPTER 24; STANDARD DRAFT 38 & 16]

(iv) In case, the dishonoured cheque was given by an individual or by a proprietorship firm or by a Partnership firm, a notice (not statutory) followed by an Insolvency Petition in the High Court or in the District Court, can be filed against that individual / proprietor / partners.
[PLEASE REFER CHAPTER 25; STANDARD DRAFT 39 & 40]

(v) In case, the dishonoured cheque was given by a Private or Public Limited Company, a Statutory Notice u/s 433 / 434 / 439 of the Companies Act, 1956, followed by Winding up Petition can be filed in the High Court against that Company.
[PLEASE REFER CHAPTER 26; STANDARD DRAFT 41 & 42]

(vi) As aforesaid, an application u/s 156(3) or complaint under section 200, to Judicial Magistrate / Metropolitan Magistrate, may be filed, for the offence of cheating / mischief against the said individual / proprietor / partners / officials of the Company.
[PLEASE REFER CHAPTER 3 & 17; STANDARD DRAFT 15 & 16]




(DD)
WHEN ONE IS TO RECOVER SPECIFIED DEBT / MONEY, i.e. TO SAY RECOVERY OF LOAN, MONEY DUE UNDER COMMERCIAL TRANSACTIONS; MONEY DUE UNDER ANY CONTRACT / AGREEMENT; MONEY TO BE RECOVERED BY VIRTUE OF ANY LEGAL RIGHT / UNDER STATUTE, WHETHER FROM A PRIVATE PERSON / INDIVIDUAL OR FROM ANY PUBLIC AUTHORITY –
depending upon the nature of one’s case, the likely Remedies may be –

(i) If there exist any Arbitration clause in the Contract / Invoice or in the absence of Arbitration clause, by consent of the other side, one may adopt Arbitration proceedings for the resolution of the dispute and recovery of money. The Orders passed by Arbitrators can be enforceable like a decree of the Court.
[PLEASE REFER CHAPTER 27]

(ii) If there exist no Arbitration clause in the Contract / Invoice, then a Summary Suit, contemplated under Order XXXVII of Civil Procedure Code, 1908, in the respective High Court or in the District Court can be filed for the recovery of that specified ascertained debt / amount.
[PLEASE REFER CHAPTER 23; STANDARD DRAFT 37]

(iii) In case, the specified ascertained debt / amount is to be recovered from an individual or from a proprietorship firm or from a Partnership firm, then, depending upon the acts and omissions of the defaulter, a notice (not statutory) followed by Insolvency Petition in the High Court or the District Court, can be filed against that individual / proprietor / partners.
[PLEASE REFER CHAPTER 25; STANDARD DRAFT 39 & 40]

(iv) In case, the specified ascertained debt / amount is to be recovered from a Private or Public Limited Company, a Statutory Notice under section 433 / 434 / 439 of the Companies Act, 1956, followed by Winding up Petition can be filed in the High Court against that Company.
[PLEASE REFER CHAPTER 26; STANDARD DRAFT 41 & 42]

(v) As aforesaid, an application u/s 156(3) or complaint under section 200, to Judicial Magistrate / Metropolitan Magistrate, may be filed, for the offence of cheating / mischief against the said individual / proprietor / partners / officials of the Company.
[PLEASE REFER CHAPTER 3 & 17; STANDARD DRAFT 15 & 16]




(EE)
WHERE ONE HAS ALLEGED TO HAVE BEEN SUPPLIED / PROVIDED DEFECTIVE GOODS OR ONE HAS ALLEGED TO HAVE RENDERED DEFICIENT SERVICES, OR WHERE ANY PERSON IS ALLEGED TO HAVE INDULGING IN UNFAIR TRADE PRACTICES –
depending upon the nature of one’s case, the likely Remedies may be

(i) If the aggrieved person is a “consumer”, then, depending upon the amount of compensation claimed, a Consumer complaint can be filed against the provider of defective goods / deficient services, before the appropriate District Forum / State Commission or before the National Commission.
[PLEASE REFER CHAPTER 28 & 29; STANDARD DRAFT 43 & 44]

(ii) For deficiency in respect of Banking services, Banking Ombudsman may, in the alternative of Consumer courts, be approached;
Please visit RBI website.

(iii) Depending upon the nature of one’s case, as aforesaid, an application u/s 156(3) or complaint under section 200, to Judicial Magistrate / Metropolitan Magistrate can be filed.
[PLEASE REFER CHAPTER 3 & 17; STANDARD DRAFT 15 & 16]

(iv) A complaint to respective governmental regulatory body of said defaulting company can be made alleging that the said company is indulging in unfair trade practices; and in the event the said governmental regulatory body ignores / refuses to take any action against the said defaulting entity, then, a Writ Petition can be filed against that governmental regulatory body, in the respective High Court, seeking relief from HC, directing the said governmental regulatory body to take appropriate action against that entity who is indulging in unfair trade practices. What amounts to unfair trade practice is defined in the Consumer Protection Act, and also in Competition Act, 2002.
[PLEASE REFER CHAPTER 14; STANDARD DRAFT 1, 2, 3 & 4]

(v) In respect of business / commercial / trade disputes, where there exist any Arbitration clause in the Contract or in the absence of Arbitration clause, by consent of the other side, one may adopt Arbitration proceedings for the resolution of the dispute.
[PLEASE REFER CHAPTER 27]

(vi) With respect to “Unfair Trade Practices” a complaint may be preferred before the Competition Commission of India or even before the Consumer courts / State Commissions / National Commissions.
[PLEASE REFER CHAPTER 30; STANDARD DRAFT 45]

(vii) ACcivil suit in the District Court for seeking Injunction / damages may be filed in the District Court / High court, for the alleged supply of defective goods / rendering of deficient services.
[PLEASE REFER CHAPTER 2 & 15; STANDARD DRAFT 1 & 12]

(viii) In cases of big frauds alleged to have been committed by any Public or Private Ltd Company or by any business entity, then, Petition to Company Law Board may be preferred for directing investigation to Serious Fraud Investigation Office u/s 237 of the Companies Act, 1956 etc. [PLEASE REFER STANDARD DRAFT 46]

The goods includes all kinds of goods (Sale of goods Act) and Services includes – Banking, Financial, Transport / Cargo, Courier, Housing, Cellular services, Internet, Insurance, credit card, Medical, Educational etc.






(FF)
DISPUTES
ARISING IN THE REGULAR COURSE OF ANY BUSINESS ACTIVITY / TRADE RELATIONSHIP;
IN THE PERFORMANCE / EXECUTION OF CONTRACTS / AGREEMENTS / OTHER BUSINESS OBLIGATIONS.

(i) Where a person, who is entitled to the possession of any specific movable property, by virtue of being a owner of such specific movable property or by virtue of having a special or temporary right to possess such specific movable property, and who is unlawfully refused / denied to the possession of such specific goods / movable property, may by virtue of Section 7 of the Specific Relief Act, 1963, recover the said specific movable property, by filing a Suit for the recovery of said specific goods / movable property. [Movable property will include all kinds of goods, things – valuable and invaluable]

(ii) The Principal may compel the Agent to deliver any goods / movable property, which is held by the Agent on behalf of the Principal; or a person who is holding any goods / movable property as a trustee of another, by virtue of Section 8 of the Specific Relief Act, may be compelled by that another to deliver that property, by filing a Civil Suit in this regard.

(iii) Where any goods / movable property have been wrongly transferred to some other person, the same may be recovered, by virtue of Section 8 of the Specific Relief Act, by filing a Civil Suit.

(iv) Where a person against whom a Suit is filed, is making frivolous defences / defences untenable in law, he may be stopped / precluded from taking any such defences, by virtue of Section 9 of the Specific Relief Act, 1963.

(v) Where a party to the Contract is evading in performing his part of the Contract, thereby seriously prejudicing the other contracting party, the said other contracting party, by virtue of Sections 10, 12, 14(3), 19, 21, 22, 23, 42 and subject to Sections 14, 16, 17, 18, 20, 24 may by filing a Suit for Specific performance, cause the said defaulting party to perform his part of the contract and may also seek damages in addition to Specific performance, or may seek damages in lieu of Specific performance; and can also seek additional damages for breach of Contract.

The party enforcing specific performance of the contract, by virtue of Section 29 of the Specific Relief Act, in the alternative of specific performance, may seek rescission of the contract in case specific performance is refused by the court.

(vi) Where a person, who has purchased goods / movable property, from a person who has no title or has imperfect title to the said goods / movable property, the said purchaser, by virtue of Section 13 of Specific Relief Act, 1963, has a right and he –
(a) May compel the said other person to make good the title where in future the said other person acquired the title to such goods / movable property;
(b) May compel the said other person to procure the concurrence of a person whose concurrence will validate the title of the purchaser;
(c) Where in a case, the Seller had filed the Suit for Specific performance of the contract, and his said Suit is dismissed for want of title or imperfect title, the purchaser in the said Suit, can claim the refund of his amount paid over said goods / movable property and can also recover interest on the said amount paid including costs of the Suit.

(vii) Where the contracting parties find, that, either due to mutual mistake or due to fraud of one of the party, the contract entered into between them, in effect and in scope, does not convey the true purport it was intended and the contract is very different from what they had really agreed to, then, either of the contracting parties, by virtue of Section 26 of the Specific Relief Act, may institute a Suit for rectification of said defective instrument / contract, or the parties may in any existing Suit pray for such rectification.

The court may in its discretion, direct the rectification of the instrument so as to express that intention, so far as this rectification can be done without prejudice to the rights acquired by third party in good faith and for value.

Once the instrument is duly rectified by the Order of the Court, then, the said instrument may be specifically enforced by any of the contracting party.

(viii) Where consent to an agreement is obtained by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so obtained; and where both the parties to an agreement are under a mistake of fact essential to the agreement, the agreement is void. In such situation the defrauded party, by virtue of Section 27(1), subject to Section 27(2), has three remedies open to him, namely –
• He may rescind the contract absolutely and sue to recover the consideration parted with upon the fraudulent contract; or
• He may bring an action to rescind the contract and in that action have full relief; or
• He may retain what he has received and bring an action to recover the damages sustained.

The rescission of contract can also be sought of unlawful and terminable contracts.


(ix) Where written instruments / contracts, partially or wholly, originally valid, becomes inefficacious by subsequent events, such as, by satisfaction or payment, or other causes; and its existence casts either a cloud upon the title of the party or subject him to the danger of some future litigation; under such and like circumstances, the said party, by virtue of Section 31 and 32 of the Specific Relief Act, may file a Suit to declare the said whole or partial of the Written Instrument / contract, as void or voidable and get it cancelled.

(x) Where a person is entitled to a legal character or to any right as to any property and any person is denying or interested to deny the such entitlement, then, by virtue of Section 34 of the Specific Relief Act, the said aggrieved person may file a Suit for declaration by the Court that he is entitled for said legal character or is entitled to that property.

(xi) Where a person who has invaded or is threatening to invade the rights, legal or equitable, of another, the aggrieved person, by virtue of Section 36, 37, and 38 and subject to Section 41, of the Specific Relief Act, may file a Suit for temporary and permanent injunction.

By virtue of Section 40 of the Specific Relief Act, 1963, the aggrieved person, in addition to or in lieu of aforesaid injunction, may seek damages.

Injunction is a form of relief given, to prevent a party from doing which he is under an obligation not to do, or called upon to do a certain ac, which he is under an obligation to do.

(xii) Where to prevent the immediate and imminent breach of an obligation, the obligation whether arising from contract or Statute, and where it is necessary to compel the performance of certain acts, which the court is capable of enforcing its performance, then, by virtue of Section 39 of the Specific Relief Act, a Suit for Mandatory injunction may be filed for the issuance of said injunction.




(GG)
WHEN YOU ARE HOLDING SHARES IN A PUBLIC LIMITED COMPANY OR IF YOU HAVE GRIEVANCE AGAINST A COMPANY OR YOU HAVE A GRIEVANCE AGAINST THE STOCK BROKER OR YOU HAVE A GRIEVANCE AGAINST THE STOCK EXCHANGE –
depending upon the nature of one’s case, the likely Remedies may be –

(i) So far as may be permissible under the law, and if there exist any Arbitration clause in the Contract or in the absence of Arbitration clause, by consent of the other side, one may adopt Arbitration proceedings for the resolution of the dispute.
[PLEASE REFER CHAPTER 27]

(ii) Complaint to SEBI: For all these below listed issues complaint can be made online to SEBI, at prescribed format therein provided in SEBI website. And where SEBI fails to take appropriate / desired action against the Company / Stock Broker / Stock Exchange, then Writ Petition may be filed in the respective High Court against SEBI for its inaction.

1. Against Listed Companies – like – Refund / Allotment / Dividend / Transfer / Bonus / Rights/ Redemption / Interest;
• Pre-listing / Offer Document
• De-listing of Shares / Securities
• Buy-Back of Shares / Securities
• Takeover and Restructuring
• Corporate Governance / Listing Conditions

2. Registrar and Transfer Agents
3. Stock Brokers
4. Sub Brokers
5. Portfolio Managers
6. Stock Exchanges
7. Depository
8. Mutual Fund Companies
9. Collective Investment Schemes
10. Merchant Bankers
11. Debenture Trustees
12. Bankers to an issue
13. Credit Rating Agencies
14. Custodian of Securities
15. Foreign Institutional Investors
16. Underwriters
17. Venture Capital Funds
18. Price / Market manipulations
19. Insider Trading

(iii) A Petition to Company Law Board may be made for – Oppression of minority shareholders or Mismanagement of the Company, disputes relating to non transfer of Shares by Companies, non refund of Public deposits by Companies.
[PLEASE REFER CHAPTER 32; STANDARD DRAFT 46]

(iv) On subjects where Company Law Board has no jurisdiction, Civil Suit for Injunction / Declaration before District Court may be preferred.
[PLEASE REFER CHAPTER 2 & 15; STANDARD DRAFT 1 & 12]

(v) Depending upon the nature of one’s case, a Winding up Petition to the respective High Court may be preferred.
[PLEASE REFER CHAPTER 26; STANDARD DRAFT 41 & 42]

(vi) Depending upon the nature of one’s case, as aforesaid, an application u/s 156(3) or complaint under section 200, to Judicial Magistrate / Metropolitan Magistrate can be filed against the Directors of the defaulting Company.
[PLEASE REFER CHAPTER 3 & 17; STANDARD DRAFT 15 & 16]

(vii) A complaint to respective governmental Regulatory body of said defaulting company / organization can be made alleging the nature of grievance one has against the said company / organization; and in the event the said governmental regulatory body ignores / refuses to take any action against the said company / organization, then, a Writ Petition can be filed against that governmental regulatory body, in the respective High Court, seeking relief from HC, directing the said governmental regulatory body to take appropriate action against that company / organization.
[PLEASE REFER CHAPTER 14; STANDARD DRAFT 1, 2, 3 & 4]





(HH)
DISPUTES RELATING TO IMMOVABLE PROPERTIES

The obligations of Seller and the buyer of immovable property are set forth in Section 55 of the Transfer of Property Act, 1888.

Under the law, three distinct actions could be brought for the recovery of specific immovable property, namely –
1. A Suit based on title by Ownership;
2. A Suit based on possessory title;
3. A Suit based on the strength merely of previous possession, in the case of a wrongful ouster, i.e. without following the due process of law, of a person without his consent.

I. When a cloud is raised over a person’s title and he does not have a possession, a Suit for declaration and possession, with or without a consequential injunction is the remedy;
II. Where a person’s title is not in dispute but he is out of possession, he has to sue for possession and consequential injunction;
III. Where there is merely an interference with a person’s lawful possession or where there is a threat of dispossession, it is sufficient to sue for an injunction simpliciter. Anathula Sudhakar versus P Buchy Reddy – AIR 2008 SC 2033 (2039).

(1) WHEN THE BUILDER / DEVELOPER FAILS TO GIVE POSSESSION OF FLAT WITHIN AGREED TIME; OR THE BUILDER FAILS TO PROVIDE THE AMENITIES AGREED IN THE AGREEMENT; OR THE BUILDER VIOLATE ANY PROVISION OF LAW WITH RESPECT TO CONCERNED BUILDING / STRUCTURE, THEREBY VIOLATING THE CONTRACT SO ENTERED INTO BETWEEN THE BUILDER / DEVELOPER AND THE FLAT BUYER.
(i) A Complaint before Consumer Forum / State Commission / National Commission may be filed for “deficiency of services”.[PLEASE REFER CHAPTER 28 & 29; STANDARD DRAFT 43 & 44]
(ii) A complaint may be made to Local Municipal authority stating therein the illegalities committed by the Developer and asking the Local Municipal authority to take action against the erring / defaulting Developer; and where Municipal authorities do not take required action against the defaulting Developer, then, a Writ Petition in the respective High court may be preferred against the said Municipal authority.
[PLEASE REFER CHAPTER 14; STANDARD DRAFT 1, 2, 3 & 4]

(iii) If there is Arbitration clause in the Contract between the Builder / Developer / Seller and the property buyer, then, Arbitration proceedings should be adopted for the resolution of particular dispute. [PLEASE REFER CHAPTER 27]
(iv) A criminal complaint / FIR before Police, or as aforesaid, an application u/s 156(3) or complaint under section 200, to Judicial Magistrate / Metropolitan Magistrate, may be filed, alleging cheating / criminal breach of trust / mischief or any other applicable offence depending upon the facts of each case.
[PLEASE REFER CHAPTER 3 & 17; STANDARD DRAFT 15 & 16]

(v) Where the Builder / Developer is evading in performing his part of the Contract, thereby seriously prejudicing the interests of the Purchaser, the Purchaser, by virtue of Sections 10, 12, 14(3), 19, 21, 22, 23, 42 and subject to Sections14, 16, 17, 18, 20, 24 of the Specific Relief Act, 1963, may by filing a Suit for Specific performance, cause the said Builder / Developer to perform his part of the contract and may also seek damages in addition to Specific performance, or may seek damages in lieu of Specific performance; and can also seek additional damages for breach of Contract.

Where despite a decree for specific performance, the purchaser fails to pay the purchase money, or any other sum which the court has ordered him to pay, the Builder / Developer, by virtue of Section 28 of the Specific Relief Act, may apply in the same Suit to declare the contract rescinded.

The party enforcing specific performance of the contract, by virtue of Section 29 of the Specific Relief Act, in the alternative of specific performance, may seek rescission of the contract in case specific performance is refused by the court. [PLEASE REFER CHAPTER 2 & 15; STANDARD DRAFT 1 & 12]

(2) WHERE ONE IS FORCIBLY / UNLAWFULLY DISPOSSESSED FROM HIS LAWFUL POSSESSION –
(i) A complaint, may be filed before Judicial Magistrate / Metropolitan Magistrate praying therein for the Magistrate to exercise his powers conferred upon him under section 145 and 146 of CrPC, 1973, to restore the possession to the person unlawfully dispossessed of. [PLEASE REFER CHAPTER 3 & 33; STANDARD DRAFT 15 & 16]
(ii) A civil suit u/s 6 of Specific Relief Act, 1963, may be filed before the District Court / High Court for immediate restoration of possession to the person who was in lawful possession.
[PLEASE REFER CHAPTER 2 & 15; STANDARD DRAFT 1 & 12]

(3) WHERE ONE IS ANTICIPATING FORCIBLE / UNLAWFUL DISPOSSESSION FROM HIS LAWFUL POSSESSION / OR TO PREVENT TRESSPASS OF IMMOVABLE PROPERTY –
(i) A Civil Suit u/s 35 of the Specific Relief Act, 1963 may be filed thereby seeking declaration to the effect that the person in possession is entitled to the present possession;

(ii) A Civil Suit u/s 39 of Specific Relief Act, 1963 may be filed for Mandatory Injunction against the person who intends to unlawfully dispossess.

(i) Subject to existence of certain conditions, a complaint to concerned Police station u/s 145 of CrPC, 1973, may be made for preventing forceful unlawful dispossession / preventing trespass, as the case may be;

(4) WHERE THE LICENSEE REFUSE TO VACATE THE PREMISES EVEN AFTER THE TERMINATION OF THE CONTRACT; OR DISPUTES BETWEEN LANDLORD AND TENANT;
(i) If the property is situated within Maharashtra, the dispute between Landlord & Tenant OR between Licensor and Licensee may be referred before competent authority constituted under Maharashtra Rent control Act, 1999. [PLEASE REFER CHAPTER 2 & 15; STANDARD DRAFT 47]
(ii) Small Causes Courts, constituted under the Provincial Small Causes Courts Act 1881 / Presidency Small Causes Courts Act, 1881, have exclusive jurisdiction over certain disputes between Landlord & Tenant and between Licensor and Licensee.
[PLEASE REFER CHAPTER 2 & 15; STANDARD DRAFT 1 & 12]


(5) IN AN AGREEMENT FOR SALE / PURCHASE OF IMMOVABLE PROPERTY, WHERE ANY PARTY REFUSE TO PERFORM HIS PART OF PROMISE SO MADE IN THE AGREEMENT / CONTRACT.
(i) Where the Seller is evading in performing his part of the Contract, thereby seriously prejudicing the interests of the Purchaser, the Purchaser, by virtue of Sections 10, 12, 14(3), 19, 21, 22, 23, 42 and subject to Sections14, 16, 17, 18, 20, 24 of the Specific Relief Act, 1963, may by filing a Suit for Specific performance, cause the said Seller to perform his part of the contract and may also seek damages in addition to Specific performance, or may seek damages in lieu of Specific performance; and can also seek additional damages for breach of Contract.

Where despite a decree for specific performance, the purchaser fails to pay the purchase money, or any other sum which the court has ordered him to pay, the Seller, by virtue of Section 28 of the Specific Relief Act, may apply in the same Suit to declare the contract rescinded.

The Purchaser enforcing specific performance of the contract, by virtue of Section 29 of the Specific Relief Act, in the alternative of specific performance, may seek rescission of the contract in case specific performance is refused by the court.
[PLEASE REFER CHAPTER 2 & 15; STANDARD DRAFT 1 & 12]

(ii) A Suit comprehensive, Suit for the Registration of the Sale Deed and for recovery of possession, is not barred on the ground that a statutory alternative remedy of registration is available under section 77 of the Registration Act. An Agreement for transfer of property implies a contract not only to execute the deed of transfer but also to appear before the Registering Officer and to admit execution thereby facilitating the registration of the document wherever it is compulsory. AIR 1999 SC 2958 (2961).

(iii) Where a person, who has purchased goods / movable property, from a person who has no title or has imperfect title to the said goods / movable property, the said purchaser, by virtue of Section 13 of Specific Relief Act, 1963, has a right and he –
(a) May compel the said other person to make good the title where in future the said other person acquired the title to such goods / movable property;
(b) May compel the said other person to procure the concurrence of a person whose concurrence will validate the title of the purchaser;
(c) Where a mortgaged property is sold as a unencumbered property, the purchaser may compel the Seller to redeem the mortgage and obtain a valid discharge, and if necessary, a conveyance from the mortgagee;
(d) Where in a case, the Seller had filed the Suit for Specific performance of the contract, and his said Suit is dismissed for want of title or imperfect title, the purchaser in the said Suit, can claim the refund of his amount paid over said goods / movable property and can also recover interest on the said amount paid including costs of the Suit.


(iv) Where consent to an agreement is obtained by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so obtained; and where both the parties to an agreement are under a mistake of fact essential to the agreement, the agreement is void. In such situation the defrauded party has three remedies are open to him, namely –
• He may rescind the contract absolutely and sue to recover the consideration parted with upon the fraudulent contract; or
• He may bring an action to rescind the contract and in that action have full relief; or
• He may retain what he has received and bring an action to recover the damages sustained.

(v) Where written instruments / contracts, partially or wholly, originally valid, becomes inefficacious by subsequent events, such as, by satisfaction or payment, or other causes; and its existence casts either a cloud upon the title of the party or subject him to the danger of some future litigation; under such and like circumstances, the said party, by virtue of Section 31 and 32 of the Specific Relief Act, may file a Suit to declare the said whole or partial of the Written Instrument / contract, as void or voidable and get it cancelled.

(vi) Where a person is entitled to an immovable property and any person is denying or interested to deny the such entitlement, then, by virtue of Section 34 of the Specific Relief Act, the said aggrieved person may file a Suit for declaration by the Court that he is entitled for said immovable property.

(vii) Where to prevent the immediate and imminent breach of an obligation, the obligation whether arising from contract or Statute, and where it is necessary to compel the performance of certain acts, which the court is capable of enforcing its performance, then, by virtue of Section 39 of the Specific Relief Act, a Suit for Mandatory injunction may be filed for the issuance of said injunction.

(viii) A criminal complaint / FIR before Police or as aforesaid an application u/s 156(3) or complaint under section 200, to Judicial Magistrate / Metropolitan Magistrate, may be filed, alleging cheating / criminal breach of trust / mischief or any other applicable offence depending upon the facts of each case.
[PLEASE REFER CHAPTER 3 & 17; STANDARD DRAFT 15 & 16]

(6) WHERE A PERSON WAS GIVEN POSSESSION (LICENSE) OF IMMOVABLE PROPERTY ON GRATUITOUS BASIS AND THE SAID PERSON REFUSE TO VACATE THE PREMISES –
(i) If the property is situated within Maharashtra, the dispute may be referred before competent authority constituted under Maharashtra Rent control Act, 1999. [PLEASE REFER CHAPTER 2 & 15; STANDARD DRAFT 47]
(ii) Small Causes Courts, constituted under the Provincial Small Causes Courts Act 1881 / Presidency Small Causes Courts Act, 1881, have exclusive jurisdiction over certain disputes between Landlord & Tenant and between Licensor and Licensee.
[PLEASE REFER CHAPTER 2 & 15; STANDARD DRAFT 1 & 12]

(iii) A criminal complaint / FIR before Police or as aforesaid, an application u/s 156(3) or complaint under section 200, to Judicial Magistrate / Metropolitan Magistrate, may be filed, alleging cheating / criminal breach of trust / mischief or any other applicable offence depending upon the facts of each case. [PLEASE REFER CHAPTER 3 & 17; STANDARD DRAFT 15 & 16]






(I I)
(1) WHEN SOMEONE HAS FILED A CASE IN THE COURT OF LAW, MAKING FALSE CLAIM THEREIN

(i) It is a criminal offence for to make false claim against any person in the court of law and is punishable under section 209 of Indian Penal Code, 1860. However, FIR or private complaint to Magistrates court is not permissible for registering of above offence. In such cases, criminal proceedings may be initiated against guilty person by making an Application under section 340 read with section 195 of CrPC 1973, before the concerned trial Court, praying therein for trial court to refer the said offence of “false claim”, to the competent Magistrate Court of jurisdiction.
[PLEASE REFER CHAPTER 3 & 11; STANDARD DRAFT 25]

(ii) The making of false claim also entails making of false statements / false declarations in one’s pleadings and filing of false Affidavit. It is a criminal offence under sections 181, 191, 196 and 199 of IPC, 1860 to make false statements / false declarations in one’s pleadings or filing false Affidavit or knowingly giving false evidence (OFFENCES OF PERJURY). As aforesaid, FIR or private complaint to Magistrates court is not permissible for registering of above offences. In such cases, criminal proceedings may be initiated against guilty persons by making an Application under section 340 read with section 195 of CrPC 1973, before the concerned trial Court (civil or criminal), praying therein for trial court to refer the above stated offences, to the competent Magistrates Court of jurisdiction, against those persons who have allegedly made false statements / false declarations in one’s pleadings or have allegedly filed false Affidavit or have allegedly knowingly given false evidence.
[PLEASE REFER CHAPTER 3, 11, & 35; STANDARD DRAFT 25]

(iii) A Civil Suit for damages for “malicious prosecution” may be filed in the District Court.

(iv) If a Civil Suit making false claim is filed, then following provisions of CPC, 1908 may be invoked –
(a) Order VI Rule 16;

(b) Order VII Rule 11;

(c) In the said Suit of false claim, non compliance to all applicable provisions contained in Order VI and Order VII may be alleged;

(d) Order XI: Discovery and inspection.

(e) Order XIV Rule 1,2, 6;

(f) Order XV Rule 1, 2, 3;

(g) Order XXV Rule 1.

[PLEASE REFER CHAPTER 5 & 10]


(2) WHERE A PERSON HAS A VERY STRONG AND PRIMA FACIE CASE AGAINST THE OPPOSITE PARTY

(d) Order XI: Discovery and inspection.

(d) Order XII: Admissions by the defendants

(e) Order XIV Rule 2(2)

(f) Order XV Rule 1, 2, 3: Disposal of the Suit at the first hearing.

And Section 9 of the Specific Relief Act, 1963.





( JJ )
WHEN A PERSON AGAINST WHOM SUMMONS HAVE BEEN ISSUED AND HE EVADES TO RECEIVE THAT SUMMONS

(i) It is a criminal offence under section 172 and 174 of IPC, 1860 to evade summons, issued by a court. FIR or complaint to Magistrates court is not permissible for registering of above offences. In such cases, criminal proceedings may be initiated against guilty persons by making an Application under section 340 read with section 195 of CrPC 1973, before the concerned trial Court (civil or criminal), praying therein for trial court to refer the above stated offences, to the competent Magistrates Court of jurisdiction, against those persons who have allegedly evaded summons issued by court
[PLEASE REFER CHAPTER 34; STANDARD DRAFT 25]





(KK)
WHEN A PERSON MAKES A FALSE STATEMENT / FALSE DECLARATIONS IN HIS PLEADINGS OR FILES A FALSE AFFIDAVIT BEFORE THE COURT OF LAW OR KNOWINGLY GIVES A FALSE EVIDENCE TO THE COURT / FILES A FORGED DOCUMENT

(i) It is a criminal offence under sections 181, 191, 196 and 199 of IPC, 1860 to make false statements / false declarations in one’s pleadings or filing false Affidavit or knowingly giving a false evidence (OFFENCES OF PERJURY) or filing forged document in the evidence . FIR or private complaint to Magistrates court is not permissible for registering of above offences. In such cases, criminal proceedings may be initiated against guilty persons by making an Application under section 340 read with section 195 of CrPC 1973, before the concerned trial Court (civil or criminal), praying therein for trial court to refer the above stated offences, to the competent Magistrates Court of jurisdiction, against those persons who have allegedly made false statements / false declarations in one’s pleadings or have allegedly filed false Affidavit or have allegedly knowingly given false evidence.
[PLEASE REFER CHAPTER 3, 11, & 35; STANDARD DRAFT 25]

(ii) There are instances where the Courts have viewed such acts of perjury as criminal contempt of the court. Therefore, Contempt proceedings may be initiated alleging criminal contempt of the court. Sanction of Advocate General is condition precedent for initiating Criminal contempt proceedings; or in the alternative the Hon’ble Court may be requested to take su moto cognizance of said act of perjury. High Courts have inherent powers to take judicial notice of acts of prima facie perjury and may proceed to take action against the guilty person.
[PLEASE REFER CHAPTER 20; STANDARD DRAFT 19]




(LL)
WHERE A FALSE COMPLAINT HAS BEEN FILED IN THE MAGISTRATES COURT AND THE MAGISTRATE HAS ISSUED SUMMONS / OR WHERE A GENUINE COMPLAINT HAS BEEN FILED BUT THE MAGISTRATE HAS DISMISSED THE SAID COMPLAINT, THEN –

(i) The person against whom said Summons have been issued or the person whose genuine complaint is dismissed, may prefer a Revision Application under section 397 of CrPC, 1973, before Sessions Court, or may prefer a Revision Application under section 401 of CrPC, 1973, before High Court, thereby challenging the said Order of the Magistrates court.
[PLEASE REFER CHAPTER 3; STANDARD DRAFT 48]

(ii) It is a criminal offence under section 182 and 211 of IPC, 1860 to knowingly register a false complaint against any person. In such cases the innocent person cannot register FIR or make complaint to Magistrates court against those persons who have filed false complaint. In such cases, an Application under section 340 read with section 195 of CrPC 1973, may be preferred before the said Magistrate / Sessions court, against those persons, praying therein for Magistrates court to refer the said offence of false accusation to the appropriate / competent Magistrate Court of jurisdiction. (IPC Section 182: False information, with intent to cause public servant to use his lawful power to the injury of another person. IPC Section 211: False charge of offence made with intent to injure.)
[PLEASE REFER CHAPTER 3 & 11; STANDARD DRAFT 25]

(iii) A Civil Suit for damages for “malicious prosecution” may be filed in the District Court.


(LL)
WHERE ONE IS AGGRIEVED BY THE ILLEGAL ORDER (INTERIM OR FINAL) OF THE COURT / TRIBUNAL

(i) Subject to availability of other remedies of Appeal and Revision, a Writ of Certiorari under Article 226 OR under Article 227 (Article 227 contemplates the jurisdiction of High Courts, of Superintendence over all subordinate courts and tribunals), may be filed before respective High Court, challenging said illegal Order.
[PLEASE REFER CHAPTER 6, 14; STANDARD DRAFT 49, 3A,& 11]


(MM)
WHERE ONE IS AGGRIEVED BY THE FACT THAT THE JUDGE IS ACTING ILLEGALLY / IS NOT EXERCISING THE POWERS / AND THAT THE JUDGE MAY PASS A MANIFESTLY ILLEGAL ORDER

(i) A Writ Petition of Prohibition under Article 226 OR under Article 227 (Article 227 contemplates the jurisdiction of High Court, of Superintendence over all subordinate courts and tribunals), may be filed before respective High Court, stating therein the alleged illegalities committed by said lower court / tribunal and praying for HC to direct the said lower court / tribunal to not to pass any illegal order.
[PLEASE REFER CHAPTER 6, 14; STANDARD DRAFT 50]




THE BOOK IS UNDER CONSTRUCTION


CHAPTER – 1 INTRODUCTION TO LAW AND JUSTICE
CHAPTER – 2 CIVIL PROCEDURE: BRIEF UNDERSTANDING
CHAPTER – 3 CRIMINAL PROCEDURE: BRIEF UNDERSTANDING
CHAPTER – 4 LAW OF EVIDENCES: BRIEF UNDERSTANDING
CHAPTER – 5 INHERENT POWERS OF COURTS: BRIEF UNDERSTANDING
CHAPTER – 6 PRINCIPLES OF NATURAL JUSTICE: BRIEF UNDERSTANDING
CHAPTER – 7 PRINCIPLES OF INTERPRETATION OF STATUTES: BRIEF UNDERSTANDING
CHAPTER – 8 LAW OF LIMITATIONS: BRIEF UNDERSTANDING
CHAPTER – 9 POWER OF ATTORNEY: BRIEF UNDERSTANDING
CHAPTER – 10 FAST JUSTICE: CRITICAL IPC, CPC, CRPC AND EVIDENCE ACT PROVISIONS
CHAPTER – 11 REMEDY CONTEMPLATED UNDER SECTION 340 READ WITH 195 OF CRPC, 1973: BRIEF UNDERSTANDING
CHAPTER – 12 FASCINATING QUOTATIONS: LEGAL AND NON LEGAL
CHAPTER – 13 YOU NEED TO BE A GOOD HUMAN BEING FOR BEING A SUCCESSFUL LAWYER
CHAPTER – 14 WRIT PETITIONS: BRIEF UNDERSTANDING
CHAPTER – 15 CIVIL SUITS: BRIEF UNDERSTANDING
CHAPTER – 16 HUMAN RIGHTS COMMISSION: BRIEF UNDERSTANDING
CHAPTER – 17 FIR: BRIEF UNDERSTANDING
CHAPTER – 18 SECTION 133 OF CRPC, 1973: BRIEF UNDERSTANDING
CHAPTER – 19 RTI: BRIEF UNDERSTANDING
CHAPTER – 20 CONTEMPT OF COURTS: BRIEF UNDERSTANDING
CHAPTER – 21 BAILS / ANTICIPATORY BAILS: BRIEF UNDERSTANDING
CHAPTER – 22 SUMMONS BY POLICE FOR INVESTIGATION: BRIEF UNDERSTANDING
CHAPTER – 23 SUMMARY SUIT: BRIEF UNDERSTANDING
CHAPTER – 24 CHEQUE, A NEGOTIABLE INSTRUMENT: BRIEF UNDERSTANDING
CHAPTER – 25 INSOLVENCY PROCEEDINGS: BRIEF UNDERSTANDING
CHAPTER – 26 WINDING UP OF COMPANIES: BRIEF UNDERSTANDING
CHAPTER – 27 ARBITRATION: BRIEF UNDERSTANDING
CHAPTER – 28 CONSUMER PROTECTION LAW: BRIEF UNDERSTANDING
CHAPTER – 29 UNFAIR TRADE PRACTICES: BRIEF UNDERSTANDING
CHAPTER – 30 COMPETITION COMMISSION OF INDIA: BRIEF UNDERSTANDING
CHAPTER – 31 TYPES OF COMPLAINTS THAT MAY BE BEFORE SEBI
CHAPTER – 32 TYPES OF COMPLAINTS THAT MAY BE BEFORE COMPANY LAW BOARD
CHAPTER – 33 PROCEEDINGS UNDER SECTION 145 OF CRPC, 1973: BRIEF UNDERSTANDING
CHAPTER – 34 OFFENCES REGARDING SUMMONS: SECTIONS 172 AND 174 OF IPC: BRIEF UNDERSTANDING
CHAPTER – 35 OFFENCES OF MAKING FALSE STATEMENTS / GIVING FALSE EVIDENC: BRIEF UNDERSTANDING






STANDARD DRAFT – 1 DRAFT COMPLAINT / NOTICE TO PUBLIC AUTHORITY
STANDARD DRAFT – 2 DRAFT WRIT OF MANDAMUS – FOR ENFORCING “RIGHT OF REPLY” FOR COMPLAINT MADE
STANDARD DRAFT – 3 DRAFT WRIT OF MANDAMUS – FOR ENFORCING THE MANDATE OF LAW / CONSTITUTIONAL / STATUTORY PROVISIONS
STANDARD DRAFT – 3A DRAFT WRIT OF MANDAMUS – TO DEAL WITH ILLEGAL NOTICES / ORDERS OF PUBLIC AUTHORITIES
STANDARD DRAFT – 4 DRAFT WRIT OF MANDAMUS – FOR ENFORCING FUNDAMENTAL / STATUTORY RIGHTS
STANDARD DRAFT – 5 DRAFT WRIT OF MANDAMUS – FOR SEEKING DAMAGES / COMPENSATION
STANDARD DRAFT – 6 DRAFT WRIT OF MANDAMUS – FOR IMPLEMENTATION OF RECOMMENDATIONS MADE BY COMMITTEES / COMMISSIONS
STANDARD DRAFT – 7 DRAFT WRIT OF MANDAMUS – FOR PREVENTION OF FUNDAMENTAL / STATUTORY RIGHTS BEING FRUSTRATED
STANDARD DRAFT – 8 DRAFT WRIT OF MANDAMUS – FOR CHALLENGING THE ARBITRARY EXERCISE OF POWERS / ACTS OF PUBLIC AUTHORITIES / STATE
STANDARD DRAFT – 9 DRAFT WRIT OF MANDAMUS – CHALLENGING THE CONSTITUTIONAL VALIDITY OF STATE ACTION / LEGISLATION / RULES / POLICY DECISION OF STATE, BY WAY OF FOR JUDICIAL REVIEW
STANDARD DRAFT – 10 DRAFT WRIT OF MANDAMUS – FOR PREVENTING STATE FROM WASTE OF PUBLIC MONEY
STANDARD DRAFT – 11 DRAFT WRIT OF MANDAMUS – WHERE PROPER HEARING IS NOT GIVEN TO A CITIZEN BY A PUBLIC AUTHORITY / OR WHERE A PUBLIC AUTHORITY PASSES UNREASONED ORDER
STANDARD DRAFT – 12 DRAFT CIVIL SUIT
STANDARD DRAFT – 13 DRAFT WRIT OF QUO WARRANTO
STANDARD DRAFT – 14 DRAFT COMPLAINT TO HUMAN RIGHTS COMMISSION
STANDARD DRAFT – 15 DRAFT FIR TO POLICE
STANDARD DRAFT – 16 DRAFT COMPLAINT TO MAGISTRATE U/S 200 READ WITH SECTION 190 OF CRPC, 1973
STANDARD DRAFT – 17 DRAFT COMPLAINT TO DISTRICT MAGISTRATE (COLLECTORATE OF THE DISTRICT) / COMMISSIONER OF POLICE]
STANDARD DRAFT – 18 DRAFT RTI APPLICATION
STANDARD DRAFT – 19 DRAFT CONTEMPT PETITION
STANDARD DRAFT – 20 DRAFT LETTER TO POLICE STATION TO DEAL WITH FALSE FIR
STANDARD DRAFT – 21 DRAFT ANTICIPATORY BAIL APPLICATION
STANDARD DRAFT – 22 DRAFT WRIT OF MANDAMUS – FOLLOW THE DUE PROCESS OF LAW AND STRICTLY ADHERE TO THE GUIDELINES FRAMED BY SC IN THE JOGINDER KUMAR CASE
STANDARD DRAFT – 23 DRAFT WRIT OF MANDAMUS – SECTION 482 OF CRPC TO QUASH THE FALSE FIR
STANDARD DRAFT – 24 DRAFT APPLICATION UNDER SECTION 227, 239 OF CRPC, 1973, FOR THE DISCHARGE OF ACCUSED PERSON FROM OFFENCES CHARGED
STANDARD DRAFT – 25 DRAFT APPLICATION UNDER SECTION 340 READ WITH SECTION 195 OF CRPC 1973
STANDARD DRAFT – 26 DRAFT APPLICATION UNDER SECTION 250 OF CRPC 1973
STANDARD DRAFT – 27 DRAFT LETTER TO CONCERNED POLICE STATION THAT THE POLICE OFFICER EFFECTING ARREST IS NOT FOLLOWING THE MANDATE OF LAW AND KNOWINGLY DISREGARDING THE GUIDELINES FRAMED BY SC IN THE CASE OF JOGINDER KUMAR VERSUS STATE OF U.P, 1994.
STANDARD DRAFT – 28 DRAFT WRIT OF HABEAS CORPUS – FOR IMMEDIATELY PRODUCING THE ARRESTED PERSON BEFORE THE HIGH COURT
STANDARD DRAFT – 29 DRAFT BAIL APPLICATION
STANDARD DRAFT – 30 DRAFT APPLICATION FOR SUBSISTENCE ALLOWANCE WHERE ARREST IS EFFECTED
STANDARD DRAFT – 31 DRAFT APPLICATION TO STATE / NATIONAL HUMAN RIGHTS COMMISSION ABOUT ARREST EFFECTED, IN WILLFUL DISREGARD OF THE DIRECTIONS GIVEN BY THE SC IN JOGINDER KUMAR CASE
STANDARD DRAFT – 32 DRAFT APPLICATION TO SC / HC ABOUT ARREST EFFECTED, IN WILLFUL DISREGARD OF THE DIRECTIONS GIVEN BY THE SC IN JOGINDER KUMAR CASE
STANDARD DRAFT – 33 DRAFT RTI APPLICATION TO STATE / NATIONAL HUMAN RIGHTS COMMISSION / SC / HC TO FOLLOW UP THE COMPLAINT MADE IN RESPECT OF ARREST EFFECTED, IN WILLFUL DISREGARD OF THE DIRECTIONS GIVEN BY THE SC IN JOGINDER KUMAR CASE
STANDARD DRAFT – 34 DRAFT LETTER WHEN POLICE SUMMONS FOR INVESTIGATION IN VIOLATION TO PROVISIONS OF CRPC, 1973
STANDARD DRAFT – 35 DRAFT WRIT OF MANDAMUS – HC DIRECTING THE POLICE TO MAKE THOROUGH INVESTIGATION
STANDARD DRAFT – 36 DRAFT WRIT OF MANDAMUS – HC DIRECTING THE STATE GOVT TO REFER THE CASE TO AN INDEPENDENT AGENCY LIKE CBI OR CID FOR INVESTIGATION
STANDARD DRAFT – 37 DRAFT SUMMARY SUIT
STANDARD DRAFT – 38 DRAFT STATUTORY NOTICE UNDER SECTION 138
STANDARD DRAFT – 39 DRAFT INSOLVENCY NOTICE
STANDARD DRAFT – 40 DRAFT INSOLVENCY PETITION
STANDARD DRAFT – 41 DRAFT COMPANY WINDING UP NOTICE
STANDARD DRAFT – 42 DRAFT COMPANY WINDING UP PETITION
STANDARD DRAFT – 43 DRAFT “CONSUMER” NOTICE
STANDARD DRAFT – 44 DRAFT CONSUMER COMPLAINT
STANDARD DRAFT – 45 DRAFT COMPLAINT TO COMPETITION COMMISSION OF INDIA
STANDARD DRAFT – 46 DRAFT COMPANY PETITION BEFORE COMPANY LAW BOARD
STANDARD DRAFT – 47 DRAFT APPLICATION BEFORE COMPETENT AUTHORITY CONSTITUTED UNDER MAHARASHTRA RENT CONTROL ACT
STANDARD DRAFT – 48 DRAFT REVISION APPLICATION UNDER SECTION….. OF CRPC 1973 BEFORE SESSIONS COURT TO CHALLENGE THE ORDER OF MAGISTRATES COURT
STANDARD DRAFT – 49 DRAFT WRIT OF CERTIORARI
STANDARD DRAFT – 50 DRAFT WRIT OF PROHIBITION
STANDARD DRAFT – 51 DRAFT FORMAT OF ORGANIZATION OF A CASE, INCLUDING PREPARING FOR ARGUMENTS BEFORE COURT AND WRITTEN ARGUMENTS


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