The new criminal laws mark a significant step towards empowering Indian citizens. These laws aim to create a more accessible, supportive, and efficient justice system for everyone. The following are key provisions of the new criminal laws, highlighting the impact on individual rights and protections:

i.        Report Incidents Online: A person may now report incidents by electronic communication, without the need to physically visit a police station. This allows for easier and quicker reporting, facilitating prompt action by the police.

ii.       File FIR at Any Police Station: With the introduction of Zero FIR, a person can file a First Information Report (FIR) at any police station, regardless of jurisdiction. This eliminates delays in initiating legal proceedings and ensures immediate reporting of the offence.

iii.      Free Copy of FIR: Victims will receive a free copy of the FIR, ensuring their participation in the legal process.

iv.      Right to Inform Upon Arrest:  In the event of an arrest, the individual has the right to inform a person of his choice about their situation. This will ensure immediate support and assistance to the arrested individual.

v.       Display of Arrest Information:  Arrest details will now be prominently displayed within police stations and district headquarters, allowing families and friends of the arrested person easy access to important information.

vi.      Forensic Evidence Collection and videography: To strengthen the case and investigations, it has   become mandatory for forensic   experts to visit  crime

scenes for serious offences and collect evidence. Additionally, the process of evidence collection at the crime scene will be mandatorily videographed to prevent tampering of evidence. This dual approach significantly enhances the quality and reliability of investigations and contributes to a fair administration of justice.

vii.     Fast-Track Investigations: The new laws prioritized the investigations for offences against women and children, ensuring timely completion within two months of recording information.

viii.    Progress Updates to Victims: Victims are entitled to get update on the progress of their case within 90 days. This provision keeps victims informed and involved in the legal process, enhancing transparency and trust.

ix.      Free Medical Treatment for Victims: The new laws guarantee free first-aid or medical treatment to victims of crimes against women and children at all hospitals. This provision ensures immediate access to essential medical care, prioritizing the well-being and recovery of victims during challenging times.

x.       Electronic Summons: Summons can now be served electronically, expediting legal processes, reducing paperwork, and ensuring efficient communication between all parties involved.

xi.      Statements by  Woman  Magistrate:  For  certain  offences against woman, statements  of  the   victim  are  to be recorded, as far as practicable, by a woman

Magistrate and in her absence, by a male Magistrate in the presence of a woman to ensure sensitivity and fairness, creating a supportive environment for victims.

xii.     Supply of police report and other documents: Both the accused and the victim are entitled to receive copies of the FIR, police report/chargesheet, statements, confessions, and other documents within 14 days.

xiii.    Limited Adjournments:  Courts grant a maximum of two adjournments to avoid unnecessary delays in case hearings, ensuring timely justice delivery.

xiv.    Witness Protection Scheme: The new laws mandates all State Government to implement Witness Protection Scheme to ensure the safety and cooperation of witnesses, enhancing the credibility and effectiveness of legal proceedings.

xv.     Gender Inclusivity: The definition of “gender” now includes transgender individuals, promoting inclusivity and equality.

xvi.    All proceedings in Electronic Mode: By conducting all legal proceedings electronically, the new laws offer convenience to victims, witnesses, and accused, thereby streamlining and expediting the entire legal process.

xvii.   Audio-Video Recording of Statements: In order to provide more protection to the victim and enforce transparency in investigation related to an offence of rape, the statement of the victim shall be recorded through audio video means by police.

xviii.  Exemption from going to police station: Women, persons below 15 years, persons above 60 years, and those with disabilities or acute illness are exempt from attending police stations.

xix.    Offences Against Women and Children: A new chapter has been added in BNS specifically to address offences against women and children, ensuring focused protection and justice.

xx.     Gender-Neutral Offences: Various offences against women and children have been made gender-neutral in BNS, covering all victims and perpetrators regardless of gender.

xxi.    Community service: The new laws introduce community service for minor offences promoting personal growth and social responsibility of an individual. Under community service, the offenders get the chance to positively contribute to society, learn from their mistakes, and build stronger community bonds.

xxii.   Aligned Fines for Offences: Under new laws, the fines imposed for certain crimes have been aligned with the severity of the offences, ensuring fair and proportional punishment, deterring future offences, and maintaining public trust in the legal system.

xxiii.  Simplified Legal Processes: The legal processes have been simplified to make them easier to understand and follow, ensuring fair and accessible justice.

xxiv.  Faster and Fair Resolution:  The new laws promises a faster and fair resolution of cases, instilling confidence in the legal system.

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In arbitrations, there are many stages before a “final” award is rendered by the Tribunal. This may include a likelihood of “interim awards” (akin to interim relief granted to parties in a litigation), “partial awards” (decision on a particular issue by the Tribunal at an earlier stage) and many more. While these types of awards are often differentiated in terms of the process of arbitration, awards can also be categorized as being an international award or a domestic award.

Final Awards

The term “final award”, while it might seem to connote a straightforward meaning, has been often interpreted across the globe in different manners. One understanding is that the term “Final” connotes that the Award puts an end to the arbitration proceedings. This understanding stems from Article 32(1) of the UNICITRAL Model Law, which provides:

The arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal…[1] 

In other words, a Final award, as per this understanding, would mean that the mandate of the Tribunal stands expired and the Tribunal would become functus officio.[2]

The other understanding of the term “Final” connotes that it is the final (or last) in a series of awards, which would decide the last remaining aspect of the dispute or “it might put an end to at least one aspect of the dispute”.  However, this interpretation does not seem to find favour with some jurisdictions given the possibility of partial awards deciding an aspect of the dispute finally. Hence, the former understanding seems more apt in light of the term finding mention in the UNCITRAL Model Law.

Partial Awards

Partial Awards and “interim awards” are terms which are, at times, used interchangeably in certain jurisdictions. Certain other jurisdictions interpret these to mean two different types of awards – partial awards being ones where a substantive claim might be decided at an earlier stage before the other claims; whereas interim awards being awards on an aspect of the dispute such as jurisdiction, limitation, or law applicable or generally speaking, awards which decide an issue in the form of an interim relief and not absolutely and finally.

Keeping in mind the 1996 Act’s inclusion of “interim awards” in the definition of “awards” to render them the same enforceability as that of a final award, it would not be out of place to state that as far as India is concerned, interim awards and partial awards seem to be used interchangeably as every partial award would be deemed to be an interim award under the 1996 Act, as was held in McDermott International Inc. v Burn Standard Co Ltd[3]

70. …. Some arbitrators instead and in place of using the expression “interim award” use the expression “partial award”. By reason thereof the nature and character of an award is not changed.

With regards to the enforceability of the partial awards or interim awards, in the international context, institutional rules would be the foremost source to ascertain the power of the Tribunals to issue such awards. In this regard, it must be mentioned that most of the international arbitration rules do provide for the power of the Tribunal to issue “partial awards” or “interim awards” during the proceedings, with the only variance being in the terminology being used.

Enforceability and subsequent challenge to these “partial awards” or “interim awards” in India have never been in doubt. This has recently been clarified by the Supreme Court of India in IFFCO Ltd v Bhadra Products[4] with the Court holding that “interim awards” are wide enough to cover a determination on any point of dispute between the parties and that the same can be challenged separately and independently as per section 34 of the 1996 Act.

Default Awards

The concept of a default award is rather straightforward. These are awards issued by the Tribunal in instances where one of the parties fails to appear in the arbitration. However, even in instances where a Tribunal is issuing a default award, it has to be mindful of all due-process considerations, especially ensuring that an opportunity to be heard is accorded to the other party at every stage of the arbitration. It is pertinent to mention here that in cases where a defaulting party fails to appear before the Tribunal in the arbitration, a higher onus is cast upon the Tribunal for determination of the claims in as much as the same are deemed to have been denied in the same manner as if a denial was received from the other party. Thus, a default award would have a full determination on the claims of the Claimant.

Additional Awards

Additional awards are generally issued by the Tribunal to either fill gaps or to rectify the final award (only minor apparent errors) which has already been rendered by the Tribunal. Hence, they are more in the nature of awards for correction of the final awards than being substantive on their own self. Most leading institutional arbitration rules provide for the possibility of issuing additional awards to rectify the errors or at the very least, provide the scope for the Tribunal to correct apparent errors.[5] UNCITRAL Model Law and some jurisdictions even provide for an additional award on an issue which had not been adjudicated upon by the Tribunal in the final award.[6]

Consent Awards

As the name suggests, consent awards are drawn by the Tribunal in cases where the parties decide to mutually settle their disputes. While there is no apparent need to have a settlement converted into an award, it is advisable for the parties to do so in order to have a better opportunity of having it enforced in case of a potential breach.

Performance Award

It is most common to see awards made in monetary terms, however, a party can be ordered to perform specific works, hand over goods or rights. For example, a contractor may be required to carry out remedial works in a building to ensure work is finished to the quality required. The difficulty is that these types of award create grounds for further dispute. An arbitrator should award a monetary award where possible in these instances to avoid escalation of conflict.

References:

[1] UNICITRAL Model Law; Article 32

[2] See, Gary B. Born, International Commercial Arbitration, 3^rd Edition, Kluwer Law International, 2021, pg.3148.

[3] (2006) 11 SCC 181

[4] (2018) 2 SCC 534

[5] UNCITRAL Arbitration Rules 2013, Article 39; ICC Rules 2021, Article 36; SIAC Rules 2016, rule 33; LCIA Rules 2014, Article 27

[6] UNCITRAL Model Law, Article 33(3); 1996 Act, section 33(4)

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KEY FEATURES

APPLICABILITY 

The provisions of these Master Directions relating to credit cards are applicable to every Scheduled Bank (excluding Payments Banks, State Co-operative Banks and District Central Co-operative Banks) and all Non-Banking Financial Companies (NBFCs) operating in India, whereas the provisions pertaining to debit cards are applicable to every bank operating in India. 

ELIGIBILITY TO ISSUE CREDIT CARDS

• Scheduled Commercial Banks (SCBs) other than Regional Rural Banks (RRBs) with a net worth of Rs. 100 crores and above are permitted to undertake credit card business either independently or in tie-up arrangement with other card issuing bank/NBFCs with the approval of their boards. can issue credit cards. SCBs (excluding Small Finance Banks and Regional Rural Banks) desirous of setting up separate subsidiaries for undertaking credit card business should require prior approval of the Reserve Bank.
• RRBs are permitted to issue credit cards in collaboration with their sponsor bank or other banks.
• Urban Cooperative Banks (UCBs) having net worth of more than Rs. 100 crores can also issue cards subject to applying to the concerned Regional Office of the RBI with a copy of board resolution to that effect.
• NBFCs which are registered with the RBI can also issue credit cards provided they have a minimum net owned fund of Rs 100 crores and have a certificate of registration and permission to enter the business.

GOVERNANCE FRAMEWORK

As per the Master Directions, each card-issuer should have a well- documented, board-approved policy for the issuance and conduct of the credit cards, which is required to be in compliance with the instructions issued by the RBI from time to time. Such policy must be published on the website of the card-issuer. Card-issuers should also have a mechanism in place for the review of their credit card operations on a half-yearly basis by their Audit Committee. The review shall include, inter-alia customer service, frauds, complaints and grievance redressal, card usage analysis including cards not used for long durations and the risks inherent therein.

ISSUANCE OF CREDIT CARD

Customer Acquisition

• Card-issuers should provide a one-page Key Fact statement containing key aspects of the card such as rate of interest, quantum of charges etc. along with the credit card application. Card-issuers should convey in writing with specific reasons in case of rejection of credit card application.
• The Most Important Terms and Conditions (MITC) should be highlighted and published/sent separately to customers at the acceptance stage, at the time of onboarding and each time, a condition is modified with notice to the customer.
• Card-issuers can introduce an insurance cover for lost cards at the option of the customers. In case the insurance cover is offered in tie-up with insurance companies, the explicit consent of the cardholder, either through writing or an equivalent digital mode is mandatorily required to be obtained.
• If an unsolicited card is issued/upgraded without the explicit consent of the customer and the customer is billed for it, then card-issuer is required not only to reverse such charges but also pay an additional penalty twice the value of the charges. 
• To ensure protection of the card, the card-issuers are directed to seek One Time Password (OTP) based consent from the cardholder for activating a credit card if the same has not been activated by the customer for more than thirty days from the date of issuance. In case no such consent is received from the cardholder, then the card-issuer should close the Credit Card Account within seven working days from the date of seeking such confirmation from the customer without any cost to the customer.
• Explicit written consent of the applicant is required for all cards issued by a card-issuer. Alternative digital modes with multifactor authentication can also be used in place of writing, but these need to be communicated to the RBI’s Department of Regulations.
• Card-issuers need to ensure that any telemarketers they engage to promote their services comply with Telecom Regulatory Authority of India (TRAI) regulations as well as guidelines on Unsolicited Commercial Communications – National Customer Preference Register (NCPR). No telemarketer can contact customers outside of a 10:00 a.m. to 7 p.m. window.
• Moreover, any decision relating to the issue of cards can be made only by the card-issuer and not by the sales/marketing agents whose job is limited to serving/soliciting customers.

Underwriting standards

• Card-issuers should independently assess credit risk while issuing cards to persons, taking into account independent financial means of applicants.
• Card-issuers should assess the credit limit taking into consideration all the limits enjoyed by the cardholder from other entities based on self-declaration/credit information obtained from a Credit Information Company, as appropriate.
• Card-issuers are required to ensure complete transparency in the conversion of credit card transactions to Equated Monthly Instalments (EMIs) by clearly indicating the principal, interest, and upfront discount provided by the merchant/card-issuer (to make it no cost), before the conversion. The same should also be separately indicated in the credit card bill/statement. EMI conversion with an interest component should not be camouflaged as zero-interest/no-cost EMI.
• Card-issuers should ensure that the loans offered through credit cards adhere to the instructions issued by the RBI on loans and advances from time to time.
• Card-issuers should ensure that the cardholder’s credit limit as sanctioned and advised is not breached without the explicit consent of the cardholders. 

Types of credit cards

1. Card-issuers may issue credit cards/charge cards to individuals for personal use together with add-on cards wherever required. 
2. Card-issuers may also issue cards linked to overdraft accounts that are in nature of personal loans without any end-use restrictions subject to the conditions as stipulated in the overdraft account. 
3. Business credit cards (charge cards, corporate credit cards or by linking a credit facility such as overdraft/cash credit) with add-on cards can also be issued to business entities/individuals for business expenses.

Closure of credit cards

Any request for closure of a credit card should be honoured within seven working days by the card-issuer, subject to payment of all dues by the cardholder. Failure on part of the card-issuers to complete the process of closure within seven working days should result in penalty of Rs. 500 per day of delay payable to the customer, till the closure of the account provided there is no outstanding in the account.

Cardholder should be immediately notified about the closure through email, SMS, etc. Request for closure can be submitted through multiple channels such as a helpline, dedicated e-mail-id, Interactive Voice Response (IVR), prominently visible link on the website, internet banking, mobile-app. When a credit card is not used for more than a period of 1 year, closure of such cards will be processed within thirty days with condition of no-response from user.

Interest rates/charges

Card-issuers should subject to instructions/guidelines from RBI from time to time, mark a justifiable interest rate on credit card and should determine the interest rate ceiling in line with other unsecured loans, including processing and other charges, in respect of credit cards as part of their board approved policy. In case a differential rate is charged basis payment or default history of the cardholder, it should be transparent and should publicize interest rates for different categories of customers on its website. 

Card-issuers should quote Annualized Percentage Rates (APR) on credit cards for each different situation, such as retail purchases, balance transfer, cash advances, non-payment of minimum amount due, late payment etc., if different. The terms and conditions for payment of credit card dues, including the minimum amount due, should be stipulated to ensure that there is no negative amortization. There should not be any capitalisation of unpaid charges/levies/taxes for charging/ compounding of interest.

A credit card account should be reported as ‘past due’ or penal charges levied, if any, only when the account remains ‘past due’ for more than three days. If a cardholder desires to surrender his/her credit card, the same should be allowed without levying any extra charge, subject to payment of all dues by the cardholder. Also, there should not be any hidden charges while issuing credit cards free of charge.

Billing

As per Master Directions, there should not be any delay in sending/dispatching/e-mailing, bills/statements and customers should have sufficient number of days (at least one fortnight) to make payments before the interests starts getting charged. Further, card-issuers cannot levy charges on any transaction which is being disputed as fraud by a customer till that dispute is resolved. 

Card-issuers require explicit consent from customers to adjust credit amounts “beyond a cut-off, one percent of the credit limit or Rs. 5000, whichever is lower, arising out of refund/failed/reversed transactions or similar transactions against the credit limit for which payment has already been made by the cardholder. Cardholders should also be provided with ‘one-time option’ to modify their billing cycle of the credit card as per their convenience.

Reporting to Credit Information Companies

Card-issuer are prohibited from reporting any credit information relating to a new credit card account to Credit Information Companies (CIC) prior to activation of the card. Any credit information relating to such inactivated credit cards already reported to CICs should be withdrawn immediately. If any information needs to be provided to a CIC relating to the credit history and repayment record of the cardholder, the card-issuer needs to explicitly inform the customer that such information is being provided in accordance with the Credit Information Companies (Regulation) Act, 2005. If the card-issuer wants to report a cardholder as a defaulter to a CIC, it must provide them seven days’ notice.

ISSUANCE OF DEBIT CARDS

All banks intending to issue debit cards to their customers should do so by formulating a comprehensive debit cards issuance policy with the approval of their Boards. Prior approval of RBI is not necessary.  Debit cards can only be issued to customers with Savings Bank/Current Accounts, and not to cash credit/loan account holders. However, banks may still link the overdraft facility provided along with Pradhan Mantri Jan Dhan Yojana accounts with a debit card. Banks cannot force a customer to avail debit card facility and should not link issuance of debit card to availing of any other facility from the bank.

CO-BRANDED CARDS

Prior approval of RBI is not required for the issuance of co-branded debit or credit cards. However, UCBs should not issue debit or credit cards in tie-ups with other non-bank entities. Any co-branded credit/debit card needs to indicate that it has been issued under a co-branding arrangement, and the co-branding partner cannot market the card as its own. Such a partner is limited to marketing and distributing the cards, and to providing access to the goods and services. NBFCs, opting for a co-branding arrangement for issue of credit cards with a card-issuer, should follow the Guidelines on issue of Co-Branded Credit Cards contained in the Master Directions applicable to NBFCs.

REDRESSAL OF GRIEVANCES

Card-issuers should put in place a grievance redressal mechanism within the card issuing entity and publicize it widely through electronic and print media and shall also display the same over its website alongwith its board approved policy. Specific timelines may be stipulated in the board approved policy for issuance of cards, redressal of grievances and compensation framework. Card-issuer should be liable to compensate the complainant in situations of loss of finances/timeline or any other harassment/ mental anguish experienced by the user. If a complainant does not receive a satisfactory response from the card-issuer within one month of filing the complaint, he may contact the Office of the RBI Ombudsman for redressal of grievances.

CONFIDENTIAL INFORMATION OF CUSTOMERS

No information of the end users should be shared with any organization without explicit consent of the customers. Card-issuers should have to ensure strict compliance to the extent legal framework on data protection. The information sought from customers should not be of such nature which will violate the provisions of law relating to maintenance of secrecy in the transactions. Card- issuers will be responsible for any data leaked about the customers. Under a co-branding arrangement, the co-branding entity should not be permitted to access any details of customer’s accounts that may violate the card-issuer’s secrecy obligations.

EXTENSION OF TIMELINE FOR CERTAIN PROVISIONS

As per the extended timelines vide RBI notification, card-issuers have now been given time till October 01, 2022:

1. to ensure that the credit limit as sanctioned and advised to the cardholder is not breached at any point of time without seeking explicit consent from the cardholder;
2. to facilitate the provision of seeking OTP based consent from customers for activating the cards;
3. to ensure there is no capitalization of unpaid charges/taxes/levies/compounding of interest.

CONCLUSION

These Master Directions has brought a better clarity on provisions related to issuing debit cards and credit cards and facilities provided along with it and also has defined the key terminologies. It has also explicitly provided the scope of co-branding arrangements and the roles of card-issuers and co-branding partners. The same has brought more safety and security to the consumers/cardholders by providing provisions for redressal of grievances of consumer, protection from Credit Card harassment and fraud. As compared to the earlier 2015 Master Circular, these Master Directions has also allowed NBFCs to issue credit card in tie-up with other banks with approval of RBI subject to fulfillment of certain criteria as mentioned in the Master Directions. 

AUTHORS

• Jinni Sinha, Partner, Link Legal 
• Tanushree Bose, Senior Associate, Link Legal 

The post Salient Features of Master Directions on Credit Card and Debit Card – Issuance and Conduct Directions, 2022 appeared first on Legal Desire Media and Insights.

It was determined that the phrase “Bazi” had the same meaning as “WinZo’s Baazi,” which is a betting game. In images and printouts taken from the defendants’ websites, there is no apostrophe “s” represented in WinZo. The defendants have made a clear replica of the name ‘Baazi’ by adding it to their registered trademark, which is “winZo,” in order to gain an unfair advantage over their competitors. It was argued by the plaintiff’s counsel that the source identification must be compared in order to make comparisons, and that the common terms in the infringing trademark could not be eliminated in order to do so. The judgement in Marico Limited v. Agri Tech Foods Limited, 2010 SCC Online Del 3806, has been used as authority for this ruling. Anr. is also a good example of this.

As a result of Venugopal v. Ushodaya Enterprises Ltd. and Cadila Healthcare Ltd. v Gujarat Cooperative Milk Marketing Federation Ltd., 2009 SCC OnLine Del 2786, the Gujarat Cooperative Milk Marketing Federation Ltd. has been declared insolvent. According to the plaintiff’s legal team, the defendants should be barred from using their trademarks in the future due to the obvious violation of the plaintiff’s registered trademark. A general term in Urdu, the word “Baazi” means “bet” or “game,” and it is used to refer to both.

After all, such a term could not possibly have been registered in the first place. Act. This claim was made in order to demonstrate that wherever the term “Bazi” is used in the vernacular or informally, it always refers to wagering on a game of chance. This would be a question of evidence that the plaintiff would have to show, according to learned counsel. The rulings in the case of Phonepe Pvt Ltd v. Ezy Services & Anr., 2021 SCC OnLine Del 2635, have been cited as authority for this decision. Given that there was no prima facie basis for trademark infringement established, the plaintiff was not entitled to an injunction against the infringing party.

It was solely to characterise the services that were being offered that the name “Baazi” was employed, and it was descriptive of the services. Upon examination of the records provided by the plaintiff, it became clear that the Baazi Group had transferred 16 trademarks for the paltry price of Rs.1,000/-.

In his submission, learned counsel cited the decision in Amritdhara Pharmacy vs Satyadeo Gupta AIR 1963 SC 449, which ruled that the name could not be divided and that the term could not be split. It was easy to determine who was providing the services since defendant No.1 utilised its registered brand of “WinZo” to identify the businesses who were delivering the services to the public. There would be no mistake simply because the term “Baazi” is used on both gaming websites in the same way. The verdicts in Vikas Makhija v. The Bengal Phenyle & Allied Products (P) 2001 SCC OnLine Del 643, Peshawar Soap and Chemicals Ltd. v. Godrej Soap Ltd. and Hindustan Pencils Pvt. Ltd. v. M/s. Hindustan Pencils Pvt. Ltd. v. M/s. Hindustan Pencils Pvt. Ltd. v. M/s. Hindustan

The India Stationery Products Co. & Anr. was founded in 1989 and is located in Del 34. In his closing argument, learned senior counsel for the plaintiff reiterated that under Sections 29(1), 29(2)(c), and 29(3) of the T.M. Act, a presumption had to be drawn in the plaintiff’s favour, on the basis of the identical use of the term “Baazi” for gaming services, which would cause confusion among consumers.

It was claimed that the words “Baazi” and “WinZo” were being utilised as indicators of origin in conjunction with the term “Baazi.” Because the terms were employed in the same colour and font with the same prominence, it may be inferred that the defendant No.1 was branding it with the word in question. The hashtag “#WinZOBaazi” has been trending on Twitter. A pattern of ongoing infringement by the defendant no.1 has resulted in the plaintiff being granted temporary injunction protection. The defendants were well aware that the plaintiff’s trademark “Baazi” was well-known, and they sought to capitalise on that reputation in order to increase their income.

It was argued that the defendants were unable to assert the defences set out in Sections 30 and 35 because they lacked bona fide in their claims. The use of the term “WinZoBaazi” would cause confusion in the minds of the participants, who would believe that this was yet another game supplied by the plaintiff. Neither the plaintiff nor the defendants agreed on the circumstances of prior instances cited by the learned counsel for the defendants, arguing that the facts of the present case were significantly different from those of the earlier cases. In addition, learned senior counsel noted that the defendants had relied on the decision of Hindustan Pencils (supra), in which the court had expressly said that delay was not fatal to a case when infringement and passing off were shown. On the 28th of November, 2018, an Assignment Agreement was signed between Baazi Networks Pvt. Ltd. and Baazi Networks Pvt.

The following trademarks are being sought by Ltd. and the plaintiff for assignment of the trademarks stated in Ex. „A: Trademark (word) BAAZI; POKER BAAzi; Rummy Baazi; BalleBaazi, and so on Additionally, a third Assignment Agreement was completed on the same subject matter as well as a trade mark (device). The plaintiff has gained exclusive rights in respect of whole/combination terms such as PokerBaazi as well as the single word “Baazi” via the registration of the trademark. “Baazi” is a trademark that identifies the name of the company that provided the services, in this case, the plaintiff.

Defendant No. 1 has merely used the phrase “WinZo Baazi” in the “trademark meaning” to brand its application, according to the court. The plaintiff’s firm is a booming enterprise, and they have earned a strong reputation as an internet gaming platform. It should also be highlighted that the defendants have opted to utilise the name “Team Baazi” even while the lawsuit is still pending, a name that has been in use by the plaintiff since the year 2020. “Baazi” is a Hindi/Urdu term that refers to a game in which one’s skill or strength is tested. There is no evidence to suggest that the term ‘Baazi’ is regularly used in the sector, according to the records.

Despite the fact that multiple trademark and domain name applications were mentioned in the complaint, the plaintiff has produced documents to demonstrate that they are either not in use or are being challenged. The High Court erred in its decision to get into the debate over whether the respondents-defendants and the appellant-plaintiff cater to clients from distinct classes of demographics than one another. The Court could not have inquired into whether the infringement is likely to mislead or create confusion since it did not have the authority to do so. The fact that neither party has utilised the term “Baazi” as a descriptor of their services tends to rule out the use of Section 35 of the Trade Practices Act.

Any delay in the filing of the current lawsuit, as asserted by the learned counsel for the defendants, would not be sufficient to exclude the plaintiff from obtaining relief under the law. This Court is of the considered opinion that the claim of delay has not been established and that it cannot be regarded a substantial issue in the current instance. Ordinarily, an injunction must be obtained in situations of trademark or copyright infringement, or both.

The terms “delay” and “acquiescence” are not synonymous. In the context of an action for interim injunction, delay alone is not a sufficient defence; nevertheless, delay combined with prejudice inflicted to the defendant might be considered “laches.” As McCARTHY points out on page 383: “Laches = Delay Prejudice.” For the purposes of this calculation, it is not the amount of delay or prejudice that must be weighted, but rather the size of the product of the delays and prejudice. Acquiescence is based on the actions of a person who is aware of his or her own rights but who does not claim those rights in the presence of another party.

A person’s rights should not be taken away from him unless he has behaved in a manner that would make it impossible for him to establish such rights in the first place. According to Evershed M.R. in Electrolux v Electrix (71 R.C.23), the court concurred with the position adopted by the parties (16). In order to identify his goods from those of rivals, a producer or service provider will utilise a trademark to do so. In the current instance, online gamers may be made to believe that the plaintiff’s “WinZo Baazi” service is yet another service that the plaintiff provides.

In order to protect such naive clients, the plaintiff’s trademark rights would need to be safeguarded as part of its trademark registration. With their own registered brand, WinZo, the defendants are able to do their business without hindrance under the protection afforded by that trademark, which is “WinZo.” Even if the plaintiff were to continue to use the name “Baazi,” as well as the wording utilised on its numerous websites, the plaintiff would almost definitely suffer a harm from a business competitor. The plaintiff’s case definitely wins on the basis of the “balance of convenience.” The defendants have not provided any explanation for their use of the identical term Baazi, other than the argument that ‘Baazi’ is a descriptive word.

The defendants claim that the plaintiff became envious of the $65 million investment that was about to be made in defendant No.1, which resulted in the filing of the current lawsuit. Consequently, the motion is granted, and the defendants are enjoined from further action until the case is concluded. All allusions to, or usage of, the plaintiff’s well-known brand and registered mark, “Baazi,” from their goods and services are likewise to be removed/delete/omit or withdraw, as the case may be, by the defendants.

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Under the Government of India Act, 1919, the subject matter of ‘Cooperation’ was transferred to the then Provinces, which were allowed to form their own laws independently, and under the Government of India Act, 1935, the subject of ‘Cooperatives’ remain under the Provinces. However, currently the subject of ‘Cooperative Societies’ is a part of the State List under Entry 32 of the State List of the Constitution of India. Lastly, with respect to the administration of such cooperative societies, membership was always a delicate matter, wherein, more than one province held a society’s membership. For the same purpose, the Government of India enacted the Multi-Unit Cooperative Societies Act, 1942, which was further replaced by the Multi-State Cooperative Societies Act of 1984, which is currently represented under Entry 44 of the Union List of the Constitution of India. 

NOTE: Cooperative Societies Acts enacted by State Governments are now in place in the respective states.

NEED FOR MINISTRY OF COOPERATION

In light of the recent introduction of the Ministry of Cooperation by the Central Government in Union Budget 2021, the said Ministry has been set up in order to bring about a change in the sector of Cooperative Societies and focus on the uplifting and welfare of the same. 

As mentioned earlier the Cooperative Society was not individually recognized and was treated as a small part of the Ministry of Agriculture and Farmer’s Welfare, the initiative taken by the Central Government is to provide a ‘separate administrative, legal and policy framework for strengthening the cooperative movement in the country’

The role of cooperatives has acquired a new dimension in the changing scenario of globalization and liberalization of Nation’s economy. Internal and structural weaknesses of these institutions combined with lack of proper policy support have neutralized their positive impact. There are wide regional imbalances in the development of the cooperatives in the country. This has necessitated the need for a clear-cut national policy on cooperatives to enable sustained development and growth of healthy and self-reliant cooperatives for meeting the sectoral/regional aspirants of the people in consonance with the principles of cooperation. In this connection, it is also imperative to address the issues which require to be attended to by evolving a suitable legislative and policy support to these institutions.

Therefore, the current National Policy introduced by the Government of India is especially a coordinated initiative to procure adequate and suitable policies as well as legislation in order to support such cooperatives as on set to replenish them.

OBJECTIVES

The objective of the National Policy is to facilitate all-around development of the cooperatives in the country. Under this Policy, cooperatives would be provided the necessary support, encouragement, and assistance, so as to ensure that they work as autonomous, self-reliant, and democratically managed institutions accountable to their members and make a significant contribution to the national economy, particularly in areas that require people’s participation and community efforts. This is all the more important in view of the fact that still a sizeable segment of the population in the country is below the poverty line and the cooperatives are the only appropriate mechanism to lend support to this section of the people.

The National Policy on Cooperatives to this end would seek to achieve:

• Ensuring the functioning of the cooperatives based on basic cooperative values and principles as enshrined in the declaration of the International Cooperative Alliance Congress, 1995;
• Revitalization of the cooperative structure particularly in the sector of agriculture credit;
• Reduction of regional imbalances through the provision of support measures by the Central Government/State Government, particularly in the under-developed and cooperatively undeveloped States/regions;
• Strengthening of the Cooperative Education and Training and Human Resource Development for the professionalization of the management of the Cooperatives;
• Greater participation of members in the management of cooperatives and promoting the concept of user members;
• Amendment/removal of provisions in cooperative structure by entrusting the federations predominantly the role of promotion, guidance, information system, etc. towards their affiliate members and potential members;
• Evolving a system of inbuilt mechanism in Cooperative legislation to ensure timely conduct of general body meetings, elections, and audit of cooperative societies;
• Ensuring that the benefits of the cooperatives’ endeavor reach the poorer sections of the society and encouraging the participation of such sections and women in the management of cooperatives.

Author:

Saloni Thapa, Former Research Assistant at Legal Desire Media & Insights

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When the employer has his own freedom, he used to treat different workman differently. To curtail this action this enactment passed.

The main objective is it imposes obligation on employer to specify the definite terms of contract and conditions of employment of each workman.

This Act was passed in 1946 by central government

Every condition of the employment should be or shall be made known to the workman.

The major objective of this Act it deals with conditions of service of the employment

Major purpose is to regulate the conditions of service of the employment by employer specially in connection with recruitment, discharge or dismissal, disciplinary actions leave with wages.

Application of the Act

Acts make clear both the parties (employer and workman)

This Act is applicable to every state except Jammu and Kashmir throughout the India.

This Act is applicable to all the industries wherein minimum 100 workmen been employed in an industry

Industries to which this Act is not Applicable

Sec- 13(B) Act mot apply to certain industrial establishment

Any industrial establishment for which following rule are applicable: –

1. Fundamental and supplementary rules
2. Civil service rules (state government employees) classification control service temporary service rules
3. Civil service temporary service rules
4. Civil service regulations
5. Civilians defence service rules
6. Indian railway establishment code any other rules and regulations notified by the appropriate Government

If any industry are following the rules they are exempted from this Application 1946

This rule is not applicable to any industrial establishment which is run by a private management.

Appropriate Government 2(b)

Central Government is deemed to be the Appropriate Government for following

1. Any industry which is under the control of central government
2. Railway administration
3. Major port mine or oil filed

Only for these industries central government is appropriate government. in all other cases state government is Appropriate government.

2(C): – certifying officer

1. Labor commissioner
2. Regional labor commissioner
3. Any other officer appointed by the appropriate government as a certifying officer.

Sec 2(g): – Standing order: –

Standing order is set of rules specified in this schedule of the act. It was enacted to prevent exploitation of the workman. Employer used to give his own conditions

Within the schedule they have specified certain rules or subject matter of the specified set of rules are 

1.  Classification of workman (whether he is a temporary or permanent, Badli workman)
2. Working hours, holidays as well as wage rates
3. Shift working
4. Attendance and late coming 
5. Procedure in applying leave and holidays 
6. Requirement to enter premises by certain or specific gates and liability to search
7. Closing and opening up industrial establishment
8. Termination of employment and procedure for serving the notice
9. Suspension or dismissal for misconduct or any act or omission
10. Remedies available for a workman in case of unfair labor practices
11. Any other matter which may be prescribed.

Sec – (3) Submission of draft standing orders

Which is nothing but standing order before approval is draft standing order

3(1): – every existing industry at the time of passing this enactment within a span of 6 months from the date on passing of which the enactment was passed they have to draft of a standing order and that must be submit it to certifying officer

3(2):- the draft standing order should consist of or in connection with every subject matter specified in the schedule of the Act

Model standing order – in case if the employer has made model standing order so that MSO should be in conformity with that of draft standing order

3(3): – draft so shall be accompanied by a statement giving all the particulars of all the workmen who have been employed in an industrial establishment and should be submit to certifying officer

3(4): – in case of more than one employer they should submit joint standing order (in case of group of employers)

Sec (4): – condition for certification of standing order

What are all the conditions to be fulfilled to get certification 

1. Certifying officer will verify whether the provision has made by employer for all the subject matter mentioned in the schedule
2. Standing order should also in conformity with the provision of this Act
3. Certifying officer have the authority to decide whether to grant the certification and he may also suggest for modification of the standing order in the form of addition of rules in the draft standing order and after it is fulfilled, he will certify.

Sec (5): – certification of standing order

When the draft standing order is submitted, he shall forward it a copy to trade union or workman representative.

If certifying order is satisfied by fulfilling all the conditions u/s -4 then it shall send to trade union or workman representative after certifying it will sent to trade union

Inviting objections as for the standing order is the purpose to send to workman representatives. They will have 15 days’ time to send objections from the date on which it is served to workman representative.

In case if the objectives are sent then certifying officer, he provides opportunities for both the employer and employee

After opportunity of being heard he will decide whether to grant or not and pass an order.

In case if he feels any modifications, he can suggest and certify it.

That certification order shall be sent within a span of 7 days after approval is given that order should be sent to trade union or workman representative

Once standing order is certified then condition of the service of employment of the workman,

Standing order will be bind on employees as well as employer it includes successors, legal heirs.

Sec (6): – Appeals

Any employer, trade union, representation of the workman who may be aggrieved by the order of certifying officer may make an appeal to the appellant authority within a span of 30 days from the date of certifying order is received by trade union

The decision of appellant authority shall be final binding on all the parties

Appellant authority has the power to modify or suggest for any additional information

The appellant authority shall send the final copy or order copy within a span of 7 days to the certifying officer 

In case if the appellant authority suggests the modification, it shall send back copy along with draft standing order with the parties

Appellant authority has the power to modify on its own if it modifies then that copy shall send back to the parties.

Sec (7):- date of operation of standing order

Every certifying standing order shall come in to operation after the expiry of 30 days from the date of passing order 

If no appeal is preferred from the date of expiry of 30 days it comes in to force

If any appeal is preferred after the expiry of 7 days it shall come in to operation from the date of appeal order is passed.

Sec (8):- register of standing order

A certified standing order shall be filed in a register maintained by the purpose or Act 

At any time or any person may make an application to view the standing order by the certifying officer along with the prescribed fee.

Sec (9): – posting of standing orders

Posting means displaying

The certifying standing order shall be prominently displayed by the employer in a English language as well as local language which is understood by the majority of the workman.

 He should maintain some special board wherein he should post the certified standing order

Copy of standing order shall be displayed or posted in all the departments where workmen are employed.

Sec (10): – Duration and modification of standing order

If some modification is required to modify what is the duration 

If there is any agreement between the employee and worker it can be notify notice in the empire of 6months from the date on which it come into force or from the date of enforcement

In case if we need to modify earlier to the period he should take permission from the certifying officer the employer should make an application by sending application with notification standing order and get it approved by the certifying officer. They should attach 5 copies of proposed notified standing order and he should also attach copy of agreement between the employer and trade union.

 Sec (11): – power of certifying officer

Every certifying officer and appellant authority shall have all the powers of civil court for the purpose of this evidence as per sec – 345 and 346 of crpc to consider the certifying officer as civil court.

Sec 12(A): – temporary application of model standing order 

The prescribed model standing order till they get the certification of standing order they should apply model standing order prescribed by the Act

This provision is not applicable to the temporary application of model standing order to the state of Gujarat and Maharashtra is a appropriate Government.

Sec -13 – penalties and procedures

It is mandatory on the part of every employer must make a standing order and get approved by the certifying officer.

In case if the employer fails to submit the draft standing order within the prescribed time limit then the employer may penalize.

If the notification of standing order is not as per the provision of sec (10) then that is also punishable.

Penalty is 5000 rupees employer is liable to pay 5000 

In case of continuing offence for each day the additional 200/- per day should be paid by the employer 

If the employer contravenes the provision of any of the standing order then he shall be punishable with fine 100 rupees and in case of continuing offence 25 rupees per each day

Any court which is not below the ranking of metropolitan magistrate or judicial magistrate of second class is having jurisdiction to entertain this case.

Sec -13(A) interpretation of standing order

When there is any dispute as to the obligation or interpretation to the standing order then that question may be preferred to any one of the labor court either by the employer or trade union or representative of workmen.

After receiving the application labor court shall give an opportunity for both the parties then decide the dispute. 

Whatever the decision given by labor court shall be final or binding on the parties.

Conclusion :

This act administrates relation between employee and employer or workmen / trade union and the boss.A industry with 100 or more than 100 employees require certain rules and regulations to run such industry.

Standing orders can  also  be called as constitution of industries providing guidelines and rules for the better functioning of an industry.

Hence , standing orders fulfils the constitutional objective of securing soci_economic justice in an industry. 

Author:

Malyala Sahithi

The post Salient features of Industrial Employment (Standing Order) Act, 1946 appeared first on Legal Desire Media and Insights.

The Speaker is Lok Sabha is the one presides the meetings and sessions being conducted at the proceedings Lok Sabha. The speaker and deputy – speaker (is one who works in the absence of the Speaker) is elected among the members of the Lok Sabha itself. And with respect to resignation of the position, the Speaker can resign from the position after giving the same in writing to the Deputy Speaker and vice – versa. In case if the Lok Sabha dissolves all the members in such case are to resign from their position, but, the Speaker do not need to vacate the office on the dissolution of the Lok Sabha. Whereas, Speaker is to vacate the office at the time of new election after the dissolution of Lok Sabha.

The Office of the Lok Sabha Speaker in India is a living institutional that deals with the actual needs and issues of the Indian Parliament in the performance of its role and functions. The Speaker is the constitutional and ceremonial head of the House and hence, is the principal spokesperson of the House. The responsibility of conduction the house meeting vests with him.

The Indian Constitution had recognised the importance of this Office in our democratic set – up and it was this recognition that guided them in establishing this Office as one of the prominent and dignified one in the scheme of governance of the country.

POWER OF SPEAKER OF LOK SABHA

With respect to the provisions of the Indian Constitution the Speaker of the Lok Sabha is vested with many powers and the same has been listed down below –

(1)   The Speaker is the one who conducts the meeting in the house, by ensuring discipline and decorum within the members of the house. It is upon him to guard the rights and privileges of the members of the two houses, deciding who ought to speak at what time, the issue to be raised and the order of proceedings to be followed.

(2)   Speaker is that one individual who does not caste the vote when the voting procedure by the members of the house is being followed. In case if the two sides receive equal amount of vote, it is then when the Speaker vote.

(3)   In the absence of a quorum within the House, the Speaker has the power to adjourn or suspend the meeting being taken place. It is up to the Speaker to decide the agenda of the meeting of the Members of the Parliament.

(4)   Speaker is also the Presiding Officer, and ensures that the MPs are punished for any misbehaviour during the meeting; it is upon the Speaker to allow the varied parliamentary procedures like the motion of adjournment, the motion of no confidence, the motion of censure and many others.

(5)   Once a money Boll is transmitted to the Upper House from the Lower House, the Speaker is the one who is accountable for endorsing his certificate on the Bill. In different words, he is given the power to make wise decision as to whether or not any Bill could be a money Bill. The decision made by the Speaker is said to be final.

(6)   Under the jurisdiction of the Speaker of Lok Sabha, has variety of Parliamentary Committees like the rules Committee, the Business advisory Committee as well as the General purposes Committee. It is the Speaker who has the power to nominate Chairman of these Committees.

(7)   Apart from holding the role of Speaker, he is also the “ex – officio” President of Indian Parliamentary group. He additionally acts within the capacity of the Chairman of the Conference of Presiding Officers of Legislative Bodies in India,

(8)   The Speaker is the head of the Lok Sabha Secretariat, maintaining absolute security surveillance within the Parliament.

ROLE OF CHAIRMAN IN RAJYA SABHA

The role of the Chairman of the Rajya Sabha, is that of a Vice – President who presides over the meetings of the House. As the role of Presiding Officer, the Chairman of the Rajya Sabha is the unchallenged guardian of the dignity of the House. He is also the principal spokesman of the House and represents the collective voice to the world. He makes sure that the proceedings of the House are conducted in accordance with the relevant constitutional provisions, rules, practices and other conventions and that the decorum and discipline is maintained during the meeting.

In case of vacant situation offices of both the Chairman and the Deputy Chairman, the President may appoint a member of the Rajya Sabha to discharge the duties of the Chairman, until another Deputy Chairman is elected.

The Chairman prepares a panel of members of the House for the purpose of presiding over its meetings in absence of both Chairman as well as the Deputy Chairman from their chambers.

POWERS OF CHAIRMAN OF THE LOK SABHA

(1)   As a Principal spokesman of the House – the communication from the President is made to the Chairman and represents the collective voice to the world.

(2)   Casting of vote by the Chairman of Rajya Sabha – Under the Indian Constitution, the Chairman exercises only a casting vote in the case of equality of votes. Whereas, if ant any stage sitting of the house a resolution for the removal of the Chairman from his office is under consideration, in that case he is not to preside at that sifting. In that case, he is not entitled to caste vote.

(3)   The Indian Constitution has laid down powers and duties of the Chairman – the Chairman is empowered to adjourn the House or to suspend its sitting the event of absence of quorum. The Chairman is not to accept the resignation of any of the members of the House.

(4)   Role of Chairman in the deliberations of the house – The Chairman does not take part in the deliberations of the house except in the discharge of his duties as the Presiding Officer. However, on a point or order raised or on his own he may address the house at any time on a matter under consideration with a view to assisting members in their deliberations.

(5)   Power conferred under the Rules of procedure of the Rajya Sabha – the Chairman may at any time call a sitting of the house before the date or hour to which it has been adjourned, or at any time after the House has been adjourned sine die, but not prorogued by the President. The consent of Chairman is required to raise a issue of breach of privilege in the house.

(6)   Right of Chairman to interpret the Indian Constitution – The Chairman`s ruling constitute precedents which are of binding in nature. The Chairman`s rulings cannot be questioned or criticised and to protest against the ruling of the Chairman is a contempt of the house and the Chairman. No reasons are required to be furnished.

(7)   Powers relating to Bills passed in Rajya Sabha – The Chairman is empowered under the rules to correct errors in a Bill after it has been passed by the House and to make such changes in the Bill consequential on the amendments accepted by the House.

The post Role and Power of Spealer in Lok Sabha and Chairman in Rajya Sabha appeared first on Legal Desire Media and Insights.

OBJECTIVE:

Focusing on the objective of this bill,we can see that it includes promoting and consolidating education in the field of forensic along with applied behavioral science, law and other applied disciplinary, which will result into a more structured and strong criminal justice institution in India. The second major objective of this bill includes the development and maintenance of national forensic database. This database will include DNA, voice, firearms, counterfeiting currency, drugs and fingerprints related data that will support the central and state government along with investigating agencies in criminal investigation. This bill provides a platform for advance research and training in forensics in conjunction with criminology, applied behavioral science and law and aims to setup a centre of excellence with modern facilities. The university will also focus on establishing research laboratories, affiliate colleges and schools and will define the scope of prescribed courses, examinations and will grant degrees and academic distinctions. This bill repeals the 2008 Act, under which Gujarat Forensic Sciences University was established.

MISCELLANEOUS:

The bill defines the ‘campus’ of the university to include the campus of both Gujarat Forensic Sciences University and LNJN National Institute of Criminology and Forensic Science. The university will also provide opportunities of long distance or online courses, to make it more accessible for every forensic student. All the status provided to GFSU and LNJN National Institute of Criminology and Forensic Science, will automatically be transferred to the national forensic science university, these includes “the centre of Excellence”, “centre of Excellence for Narcotic drugs and Psychotropic substances” and “ Institute of strategic and security related interest”.

ADMINISTRATION:

The authority of the university will comprise of the chancellor, board of governors, court, academic council, board of affiliation and finance committee. Among these, the Chancellor and the Vice-chancellor will be appointed by the central government with the advise of the state government and will act as the Head of the University. All the academic and non academic staffs of these institutions will continue to hold their office till their natural tenure and will not be effected by this bill in any manner. The board of governors encompass of the Vice-Chancellor, who will be the chairman of the board, financial adviser, one representative each from the Home department and Ministry of Home affairs, Registrar General, Chief forensic officer and five persons who are experts in the field forensics. It will frame the first statutes of the university. The board of governors will be responsible for policy making, direction, superintendence and review other section’s work. The present registrar of GFSU will be appointed as the executive registrar of the National Forensic Sciences University. 

FUND:

The fund maintained by the university will be regulated by the recommendations of the Finance Committee. The main contributors to this fund includes amount granted by central and state government, fees collected, donations, grants and other sources. The university accounts will be audited by Comptroller and Auditor-general of India. The annual financial estimation is 94.30 crore rupees, out of which 40.00 crore is considered as non-recurring expenditure and 54.30 crore is considered to be recurring expenditure. These expenditure is expected to be met by consolidated fund of India and internal revenues of the University. 

ACADEMICS:

With the aim to create capacity and capability of international standards, the university will introduce semester system, credit base system, exchange programme, off-shore educational centre, collaborative and government special projects and instructional material with software for specially able students. This university will be considered a central university under the Central Educational Institutions Act, 2006 and will be open to all national and international students without any basis of discrimination. While the students and researchers will be transferred to the National forensic science university at the same level and will than continue their course.

TRIBUNAL OF ARBITRATION:

There will be a Tribunal of Arbitration for dissolving issues regarding contracts between the employee and the university or related to disciplinary action against students. The Right to Information Act,2005, will be applicable on the university. The statutes prepared will have the details regarding the procedure of tribunal of arbitration.  

The criminal justice includes the wide spectrum of processes by which criminal investigation, identification and proceedings are carried out. The importance of forensic science in the prevention of its recidivism, has been identified by the government. Though, augmentation of different forensic laboratory and facilities have been done in several states but the complete implementation of these on the ground level is still not achieved. The reduce this gap and fulfill the demand of large numbers of trained experts with good research works, the government has proposed this National Forensic Sciences University Bill. This will increase the manpower of forensic which will reduce not only increase the rate of solving crimes but will also ensure the reduction in chances of an innocent being punished. The database and modern facilities will increase the accuracy of crime investigation and will also reduce the number of criminal cases both cyber and inhuman, that are found compiled in different courts of India. This bill when completely administrated will strengthen our criminal justice system and will help India move towards a crime free society.

Author:

Princy Chaudhary

Currently in final semester of M.Sc. forensic science from Banaras Hindu University. She has done her  bachelor’s degree in zoology, also done certification course in facial reconstruction and biomedical nanotechnology and a hand-on workshop on exhumation and identification from AIIMS, jodhpur. She has done internship at CSIR- IGIB on NextGen dna sequencing and in fingerprint department of CBI- CFSL. She also attended many national and international workshops related to Forensic science. She aspires to do research in Forensic biology in near future.

The post Salient features of National Forensic Sciences University Bill, 2020 passed by Loksabha appeared first on Legal Desire Media and Insights.

Recently the Interpol has issued a Red Corner Notice (RCN) against Purvi Modi, the sister of Punjab National Bank (PNB) fraud accused Nirav Modi. Interpol Notices are international requests for cooperation or alerts allowing police in member countries to share critical crime-related information and a notice can be issued against the party accused. For instance, the Red Corner Notice against Purvi Modi has been issued in connection with the PNB fraud case, and in response to a request from the Enforcement Directorate.

The Directorate of Enforcement is a law enforcement agency and economic intelligence agency responsible for enforcing economic laws and fighting economic crime in India. The ED’s (Enforcement Directorate) official website enlists its other objectives which are primarily linked to checking money laundering in India. As it is an investigation agency, providing the complete details on public domain is against the rules of Government of India. The prime objective of the Enforcement Directorate is the enforcement of two key Acts of the Government of India namely, the Foreign Exchange Management Act 1999 (FEMA) and the Prevention of Money Laundering Act 2002 (PMLA).

In most of the cases India has issued the Red Notice. The request for issuing a red corner notice against Nirav Modi and Mehul Choksi has been sent by the Central Board of Intelligence (CBI) to Interpol.  The definition of the red notice is to seek the location and arrest of wanted persons with a view to extradition or similar lawful action. The persons concerned are wanted by national jurisdictions for prosecution or to serve a sentence based on an arrest warrant or court decision. The imposition of a Red Notice will have a detrimental effect on the individual. The individual’s international travel will then be curtailed, and the person can be stopped and arrested (if travelling through a member state). There will also be other detrimental consequences such as closures of bank accounts and issues with other financial institutions apart from reputational damage.

Nirav Modi’s family is the latest on the list of Interpol Red Corner Notices

Interpol has issued Red Corner notices for 338 Indian nationals from the year 2008 to 2010. A Red Corner notice allows a warrant issued by a national authority to be circulated worldwide, with the request that the wanted person be arrested with a view to extradition. Earlier, Interpol had issued 495 Red Corner notices against Indians worldwide between 2001 and 2007. That means only 25 per cent of the total Red Corner notices against Indians originate because of a crime in their home country. In other words, three-fourths of the crimes committed by Indians that led to Red Corner notices against them, were abroad.

Apart from the Red Notice there are different types of Interpol Notices such as:

• Yellow Notice – to help locate missing persons, often minors, or to help identify persons who are unable to identify themselves.
• Blue Notice – issued to collect additional information about a person’s identity, location or activities in relation to a crime.
• Black Notice – to seek information on unidentified bodies.
• Green Notice – provides warnings and intelligence about individuals who have committed criminal offences and are likely to repeat these crimes in other countries.
• Orange Notice – to warn of an event, a person, an object or a process representing a serious and imminent threat to public safety.
• Interpol United Nations Security Council Special Notice– is issued for groups and individuals who are the targets of UN Security Council Sanctions Committees.
• Purple Notice – to seek or provide information on modus operandi, objects, devices and concealment methods used by criminals.

Only those notices approved for public dissemination appear on Interpol’s website. Any individual subject to an Interpol Notice is presumed to be innocent until proven guilty. The country that sought the listing is notified through INTERPOL and can request either his provisional arrest (if there is urgency) or file a formal request for extradition. The country in which the individual is found is not compelled to act and may ignore the Notice if it believes that the requirements of an extradition treaty with the requesting country are not met. In addition, if the person is seized and the requirements of the extradition treaty are not satisfied by the requesting country, the person may be released. 

Author:

Zoya Burbeza, Solicitor – Head of Russia & CIS Desk at Zaiwalla & Co. LLP London 

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“An ounce of mediation is worth a pound of arbitration and a ton of litigation!”

— Joseph Grynbaum

The purpose of this article is to discuss and analyze the provisions related to Interim measures under The Arbitration and Conciliation Act, 1996 (herein after referred to as ‘The Act’). The relevance and importance of Arbitration and Conciliation in the Indian Legal scenario in the past two decades is undisputed, an ever evolving field, arbitration even after decades remain a riveting subject to discuss and deliberate upon.

While many people understand the concept of Arbitration and Conciliation and realize that it ultimately leads to an Arbitral Award, only a certain few, who are students of law, are aware that certain interim measures may be adopted by the Tribunal or the Court themselves to meet the ends of justice.

Interim measures by Court and Tribunal are given in The Act under Section 9 and Section 17 respectively. Such relief becomes necessary in certain situations where the party may suffer irreparable harm or damage if some immediate actions are not taken. The language of these sections is simple enough however the courts have laid down a set of principles governing them or has construed them in such a manner to limit their scope.

Section 9 of The Act is reproduced below:

9. Interim measures etc. by Court.—

[(1)] A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a Court-
(i)  for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or
(ii)  for an interim measure of protection in respect of any of the following matters, namely:-
(a)  the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;
(b)  securing the amount in dispute in the arbitration;
(c)  the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
(d)  interim injunction or the appointment of a receiver;
(e)  such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.

1[(2) Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub- section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine.

(3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious.][1]

Section 9 uses the term ‘A party’ which has been defined under Section 2(1)(h) of The Act, where “party” means a party to an arbitration agreement. Therefore, the qualification which the person invoking jurisdiction of the Court under Section 9 must possess is of being a ‘party’ to an arbitration agreement, A person not party to an arbitration agreement cannot enter the Court for protection under Section 9[2].

Section 9 continues to state that a party may ‘before… arbitral proceedings… apply to court’, however in order to give full effect to the words “before or during arbitral proceedings” occurring in Section 9 the courts have held that it would not be necessary that a notice invoking the arbitration clause must be issued to the opposite party before an application under Section 9 is filed. The issuance of a notice may, in a given case, be sufficient to establish the manifest intention to have the dispute referred to arbitral tribunal, but a situation may so demand that a party may choose to apply under Section 9 for an interim measure even before issuing a notice contemplated by Section 21 of the said Act. If an application is so made the Court will first have to be satisfied that there exists a valid arbitration agreement and the applicant intends to take the dispute to arbitration.[3] Thus the courts must be satisfied that exists a valid arbitration clause, the party is willing to be bound by it and also that the applicant is willing to start the process of arbitration.

As previously mentioned, the courts have discussed, at length the general principles regarding the exercise of discretionary power in granting interim measures under Section 9 of The Act. Order XXXVIII Rule 5 and Order XXXIX Rule 1 & 2 of The Code of Civil Procedure, 1908 relates to furnishing security for the disputed amount and granting of injunctions, similar reliefs which may be granted under this section. The courts have held that, at the highest what could be said is that the provisions of XXXVIII Rule 5 would serve as the guiding principle for the Court to exercise its discretion while dealing with a petition requiring the respondent to furnish security for the amount in dispute. Since the letter of the law per se is not applicable, the requirements set out in XXXVIII Rule 5 need not strictly be satisfied, and so long as the ingredients of the said provision are generally present, the Court would not be unjustified in exercising its jurisdiction to require the respondent to furnish security.[4]

In another Supreme Court case, the Hon’ble court was inclined to the view that exercise of power under Section 9 of The Act must be based on well recognized principles governing the grant of interim injunctions and other orders of interim protection or the appointment of a receiver.[5]

Thus, it would not be correct to say that the power under Section 9 of The Act is totally independent of the well-known principles governing the grant of an interim injunction that generally govern the courts in this connection[6]

Section 17, prima facie appears to be a similar provision to Section 9 with the Arbitration tribunal being the authority granting the interim measure, however it has been construed in a more strict manner as compared to Section 9.

Section 17 of The Act is reproduced below:

17. Interim measures ordered by arbitral tribunal.—
(1) A party may, during the arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to the arbitral tribunal
(i)  for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or
(ii)  for an interim measure of protection in respect of any of the following matters, namely:—
(a)  the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;
(b)  securing the amount in dispute in the arbitration;
(c)  the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken, or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
(d)  interim injunction or the appointment of a receiver;
(e)  such other interim measure of protection as may appear to the arbitral tribunal to be just and convenient,
and the arbitral tribunal shall have the same power for making orders, as the Court has for the purpose of, and in relation to, any proceedings before it.

(2) Subject to any orders passed in an appeal under section 37, any order issued by the arbitral tribunal under this section shall be deemed to be an order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were an order of the Court.[7]

Similar to Section 9, Section 17 uses the term ‘A party’ which has been defined under Section 2(1)(h) of The Act, where “party” means a party to an arbitration agreement, Therefore even though a third party may be adversely affected if such measure is not granted, he cannot ask for an interim measure, since he is not a party to the arbitration. Moreover under Section 17 of The Act, an interim order must relate to the protection of subject matter of dispute and the order may be addressed only to a party to the arbitration. It cannot be addressed to other parties.[8]

Section 17 provides for Interim Measures, however prior to the Arbitration and Conciliation (Amendment) Act, 2015 remained silent on the enforcement of said measures.

The pre-amendment phase of Section 17 was riddled with enforcement problems, with the courts observing that even though Section 17 gives the arbitral tribunal the power to pass orders the same cannot be enforced as orders of a Court. It is for this reason that Section 9 admittedly gives the Court power to pass interim orders during the arbitration proceedings[9], thus making enforcement of the interim measures a painstaking task for the parties.

Furthermore, in the Army Welfare Case, it was held that “Even under Section 17 of the 1996 Act, no power is conferred upon the Arbitral Tribunal to enforce its order nor does it provide for judicial enforcement thereof”[10].

However, the Arbitration and Conciliation (Amendment) Act, 2015, solved all such issues and now such orders would be deemed to be orders of the Court for all purposes and would be enforced under the Civil Procedure Code, 1908 in the same manner as if they were orders of the Court. [11] Thus, if a party doesn’t follow or comply with order of the tribunal, he may attract the penalty for contempt of court.

The jurisprudence in India relating to the standards to be applied by an arbitral tribunal while granting interim reliefs under Section 17 of The Act is sparse at best. The standards applied by national courts while granting interim measures would have no bearing on arbitral tribunals. [12]

Arbitral tribunals have normally required a party to prove

A.   irreparable harm

B.    urgency; and

C.    no prejudgment of the merits of the case, to award interim measures.

In some cases tribunals have also considered whether the party has established a prima facie case and that the balance of convenience weighed in favour of the party.

In plethora of cases such as Adhunik Steels Ltd. v. Orissa Manganese and Minerals Pvt. Ltd. AIR 2007 SC 2563, Steel Authority of India v AMCI Pty Ltd (2011) 3 Arb LR 502, Delta Construction Systems Ltd., Hyderabad v. M/S Narmada Cement Company Ltd, Mumbai, (2002) 2 BomLR 225, National Shipping Company of Saudi Arabia v. Sentrans Industries Ltd. AIR 2004 Bom136, the Courts have shied away from importing principles contained in Order XXXVII Rule 5 and Order XXXIX Rule 1 & 2 to the grant of interim reliefs under Section 9.

When such principles are not necessarily applicable in proceedings before a court; it is inconceivable for the same to apply to flexible and tailor-made dispute resolution process like arbitration[13].

However, recent developments in this regard are quite intriguing. In a recent Delhi High Court Judgement, the Hon’ble Court held that

“Where even the Court exercising power under Section 9 of The Act has to be guided by the principles of the CPC then a fortiori an interim order by a Tribunal requiring furnishing of security for the monetary amount of claim by one party had to satisfy the requirement of Order XXXVIII Rule 5 CPC.”[14]

The Hon’ble court in simple terms laid down that principles governing grant of relief under Section 9 will also apply to Section 17. This marks a positive development in the growth and development of Arbitral laws in India.

Hon’ble Delhi High Court further held that, the grant of interim relief under Section 17 of The Act was required to be preceded by a determination that the party seeking interim relief has a prima facie case.[15]

A keen understanding of these provisions makes it amply clear that even though an Arbitration was decided upon by the parties to save time and money, however, there may arise certain situations which necessitates immediate interference by the Tribunal or the Court to meet the ends of justice and save a party from irreversible damage.

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