Mentoassociates.com – Legal Articles

• The Micro, Small and Medium Enterprises Development Act (MSMED) (hereinafter referred to as Act) provides a very quick and effective means of money recovery for micro and small enterprises. Section 15 to 25 of chapter V of the act covers the same. These special privileges are for micro and small enterprises. A small enterprise growing to medium can also avail these remedies for getting the delayed payments. 

• A small enterprise, if engaged in manufacture or production of goods, is one where the investment in plant and machinery is more than 25 lakh rupees but does not exceed 5 crore rupees. In the case of an enterprise engaged in providing services, it will be treated as a small enterprise where the investment is more than 10 lakhs rupees but does not exceed 2 crore rupees. 

• A micro enterprise is an enterprise engaged in the manufacture and production of goods and where the investment in plant and machinery does not exceed 25 lakh rupees. In the case of an enterprise engaged in providing or rendering of services, for a micro enterprise, the investment in equipment shall  not exceed 10 Lakh rupees. 

• As per section 15 of the act, if a supplier supplies any goods or renders any services to any buyer, the buyer shall make payment on or before the date agreed upon between him and the supplier in writing or when there is no agreement in this behalf, before the appointed day. Here a supplier means a micro or small enterprise. As per section 2(b) of the act, the appointed day means the day following immediately after the expiry of the period of 15 days from the day of acceptance or the day of deemed acceptance of any goods or services by a buyer from a supplier. The period agreed between the supplier and buyer, in writing, shall not exceed 45 days from the day of acceptance or the day of deemed acceptance.

• As per section 16 of the act, if a buyer fails to make payment of the amount to the supplier as required under the act, the buyer shall be liable to pay compound interest with monthly rests to the supplier on that amount from the time of the appointed day or from the date immediately following the date agreed upon at 3 times the bank rate notified by RBI. If the claimant has received the principal already, the claim can be filed for interest alone. 

• As per section 18 of the act, if a supplier has a dispute with a buyer, in regards to any amount due, he may make a reference to the micro and small enterprises facilitation council (MSEFC)(hereinafter referred to as Council). On receipt of a reference, the council shall either itself conduct conciliation in the matter or refer the matter for conciliation to an institution providing ADR(Alternate Dispute Resolution ) services. The provisions of the delayed payments under the act, are not applicable to foreign buyers. Even a government department as a buyer can be proceeded against in the council. 

• MSME Samadhan portal is a portal where micro and small enterprises can file their applications online regarding delayed payments. For the purpose of applying to the MSEFC, the micro or small enterprise shall have a valid UDYAM registration. The application filed online will be forwarded automatically to the concerned MSEFC which will take action on the application. The claim should be submitted in hard copy also. 

• To file an application on MSME samadhan portal, work order is compulsory. In case the purchase order is oral, an affidavit to that effect is to be submitted. A legal notice by the supplier to the buyer is not necessary before filing the case in the council. 

• If the conciliation under section 18 is not successful, the council shall either itself take up the dispute for arbitration or refer it to an institution or centre providing ADR services. For the purpose of this conciliation and arbitration, the jurisdiction of the MSEFC or the Alternate Dispute Resolution centre will be the supplier’s jurisdiction and the buyer can be located anywhere in India. Every reference to MSEFC under section 18 shall be decided within a period of 90 days from the date of making such a reference. An award passed by the MSEFC can be executed under section 36 of the arbitration and conciliation act, 1996.

• If a person wants to set aside the decree, award or order passed by the MSEFC, then they can file the application before the jurisdictional court under section 34 of the Arbitration and Conciliation Act 1996. If it is by the buyer, then he needs to deposit 75% of the amount in terms of the decree award or the order as a condition for filing the setting aside application. Furthermore, the court considering the application to set aside the decree, award or order, shall order a reasonable percentage of the amount deposited to be paid to the supplier. 

• As per section 22 of the act, where any buyer is required to get his annual accounts audited, under any law, such buyer shall furnish several information about the principal and interest amount due to any supplier at the end of each accounting year and several other connected information. If anybody intentionally contravenes the provisions of section 22, he shall be liable with fine which shall not be less than 10 thousand rupees. 

• If the buyer is claiming rejection of goods for quality deficiencies, then the rejection should be genuine within 15 days of the receipt of the goods and its immediate communication to the supplier. 

The Karnataka Court Fees and Suits Valuation Act, 1958 regulates the fees payable in courts in the state, to balance justice and financial responsibility. An important provision under the Act is refunds and exemptions from court fees. This aims to remove unnecessary financial burdens and is especially true in cases of repayment, withdrawal or procedural release. The Act also empowers State Government to remit fees either wholly or partially to foster inclusivity and fairness. The percentage of the amount to be refunded differs based on the circumstances, which can be further understood by the below mentioned sections of the Act.

1.  Refund in case of delay in presentation of plaint or delay in payment of court fees (Section 63)

When a plaint or memorandum of appeal (hereafter referred to as only plaint) is rejected on the following grounds

• Delay in re- presentation
• Fee paid on the plaint is deficient and deficiency is not made good within the allowed time granted by the court
• The delay in payment is not condoned and the plaint is rejected consequently.

The amount of one half the total fees, 50%, paid will be refunded on the grounds of delay in presentation of the plaint for the reasons stated above.

Case Law – Union of India (UOI) and Ors. Vs Willwood Chemicals Pvt. Ltd. And Ors(India Kanoon) Decided on 19-04-2022

2. Refund in case of remand (Section 64)

When a plaint or memorandum of appeal, which has been rejected by the lower court is ordered to be received, by the higher court or when a suit is remanded in appeal by the higher court for a fresh decision by the lower court, the court which made the order shall direct the refund to the appellant of the full amount of fee paid on the memorandum of appeal. Furthermore, when the

• whole decree is reversed, and the suit is remanded or
• if the remand is on second appeal, also on the memorandum of appeal in the first appellate court

then the court may direct the refund to the appellant of the full amount of fee paid on the memorandum of appeal.

No refund shall be ordered if the remand was caused due to an error made by the party.

If the order of remand does not cover the whole of the subject matter of the suit, the refund shall not exceed the amount paid originally on that part of the subject matter in respect of the suit that has been remanded.

Case Law – Manish Kumar vs Union of India (UOI) and Ors. ( India Kanoon) Decided  on 19 January 2021

3. Refund where Court reverses or modifies former decision on ground of mistake (Section 65)

If the court makes any mistakes on the face of record and an application for a review of judgment is admitted, and after rehearing the court reverses or modifies its previous decision on that ground, it shall direct the refund to the applicant the amount that exceeds the fees paid to what the needs to be paid, which is applicable in any court. If the amount to be paid rounds up 1000 due to the mistake and the original amount to be paid was 500, the difference that is 500 is the amount that will be refunded.

Case Law – P. N. Eswara Iyer vs The Registrar, Supreme Court Of India decided on 1 February, 1980 (India Kanoon)

4. Refund on settlement before hearing (Section 66)

When the court refers the parties to any of the ADR Methods– Alternate Dispute Resolution, and the dispute is settled, by the means of arbitration, conciliation, negotiation, etc., then seventy five percent of the court fees that was paid is refunded.

Originally only fifty percent of the fees was to be refunded until a recent amendment in the year 2020 which increased it to seventy five percent.

In cases which are not covered by the above-mentioned scenarios, a refund of seventy five percent of the court fees that was paid can be claimed when

• any suit is dismissed as it is settled out of court before evidence is recorded on the merits of claim.
• any suit is compromised on the comprise decree, before evidence is recorded on the merits of claim
• any appeal is disposed of before the commencement of hearing of the appeal

Case Law – Gayathri vs Indira Rajashekar decided on 14 July 2000 (India Kanoon)

5. Refund of fee paid by mistake or inadvertence (Section 67)

According to the Karnataka Court Fees and Suits Valuation Act, if a court fee is paid by mistake, the court can order a full refund of the fee paid. The plaintiff who paid the fees in error or inadvertence, should be refunded the entire amount paid mistakenly.

Unlike in some situations where a percentage of the court fee might be deducted upon refund, if the payment was clearly a mistake, the full amount should be refunded.

6. Instruments of Partition (Section 68)

If the final decree in a partition suit is engrossed on non-judicial stamps provided by the parties, the court will order a refund of the valued fee paid by the parties. The refund will be equal to the value of the non-judicial stamps provided by the parties.

When people go to court to divide property (a partition suit), they might need to pay a fee for the court process. Later, if the court decides the property division and writes the final decision on special non-judicial stamp paper (a type of official paper required for legal documents), the parties involved in the case might have provided those stamp papers themselves.

If that happens, the court will return to them the amount of money they paid earlier in court fees, equal to the value of the stamp paper they provided. Essentially, they get reimbursed for the cost of those stamp papers.

7. Exemption of certain Documents (Section 69)

Certain documents are exempt from being liable to pay court fees.

• Legal authorizations: written authorizations like mukhtarnama or vakalatnama by Armed Forces personnel, not the ones in civil employment or memorandums filed by advocates in criminal cases.
• Documents in Specific cases: Plaints filed in village courts and applications which are related to land revenue assessment before final confirmation.
• Irrigation and Land use: Applications for irrigation supply or cultivation extension and enhancement of rent or relinquishment of land.
• Witnesses and legal Proceedings: First application for summons of witness or production of evidence. Bail bonds, recognizances, and applications related to criminal proceedings.
• Petitions and Complaints: Petitions concerning offenses filed with police officers or village authorities.
• Forest and Government revenue: Applications related to cutting timber in Government forests.
• Appeals and Compensations against any municipal tax. Applications for compensation under property acquisition laws.
• Marriage and Religious matters: Petitions under Section 48 of the Indian Christian Marriage Act, 1872.
• Records of rights filed with plaints or applications.

8. Power to reduce or remit fees (Section 70)

the Karnataka Court-Fees and Suits Valuation Act, 1958 allows the State Government to reduce or remit all or part of the fees chargeable under the Act. This can be done by a notification in the official Gazette. However, the State Government cannot reduce or remit fees for specific classes of documents or for documents filed by a particular class of people. The remission may be granted based on public interest, financial hardship of litigants, or other justifiable reasons. The provision allows the government to ease the financial burden on litigants in deserving cases, ensuring access to justice for those who might otherwise struggle to afford court fees.

Authored by

ANUPA S

1st Semester BBA LLB (Hons)

Manipal Academy of Higher Education, Bangalore

INTRODUCTION: The Employees’ Provident Fund (EPF) was established with the objective of safeguarding the financial welfare of employees in both the private and public sectors. It functions as a long-term savings mechanism, accumulating contributions throughout an employee’s tenure with an organization. The primary purpose of the EPF is to manage and secure retirement benefits for employees by ensuring a steady source of income after their service ends. The scheme is governed by the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952. To remain compliant with EPF regulations, employers must adhere to a range of statutory requirements and due diligence measures. Failure to comply may attract penalties, as outlined in the following sections.

1. False Statements to Avoid EPF Payments- [Section 14(1)]: If any person knowingly makes a false statement to avoid EPF payments he is liable to punishment of jail up to 1 year, or fine up to ?5,000, or both

2. Default in Depositing EPF Contributions- [Section 14(1A)]: If an employer fails to deposit employee contributions deducted from salaries, or pay administrative/inspection charges, he is liable to minimum 1 year imprisonment + ?10,000 fine, if employees’ deducted contributions are not deposited or minimum 6 months imprisonment + ?5,000 fine in other cases. Courts can reduce the jail term for valid and recorded special reasons.

3. Default in Insurance Fund or Inspection Charges – [Section 14(1B)]: On failure to pay insurance-related contributions or inspection charges, punishment includes jail from   6 months to 1 year and fine up to ?5,000. Court may reduce jail term with valid justification.

4. Other Violations Under EPF/Pension/Insurance Scheme – [Section 14(2)]: For any other non-compliance punishment is jail up to 1 year fine up to ?4,000 or both.

5. Breach of Exemption Conditions – [Section 14(2A)] : If an employer violates conditions of exemption granted under section 17, the punishment will be jail from 1 to 6 months and fine up to ?5,000

6. Offences Committed by Companies- [Section 14A]: When a company violates EPF laws, every person responsible for running the company (directors, managers, etc.) may be held liable. They can escape liability only if they prove lack of knowledge or due diligence. If the offence happened due to the consent or neglect of a specific officer, they will be held responsible.

7. Repeat Offenders – [Section 14AA]: If an individual or company repeats the same offence after a conviction, then the punishment will be jail for 2 to 5 years and fine of ?25,000

8. Cognizable Offence – [Section 14AB]: Failure to pay EPF contributions is treated as a cognizable offence, meaning the police can arrest without a warrant.

9. Legal Procedure for Prosecution – [Section 14AC]: – Legal action can begin only with a written report by an EPF Inspector, with prior approval from the Central PF Commissioner or an authorised officer. Only courts with the rank of Presidency Magistrate or First-Class Magistrate can try EPF offences.

10. Recovery of Penalty – Damages – [Section 14B]: For default in payments, the EPF Commissioner can impose penalty damages (up to the amount of arrears).Employers will be given a fair chance to be heard. In case of sick companies under rehabilitation, damages can be waived or reduced.

11. Court-Ordered Payment Deadlines – [Section 14C]: If convicted, courts can direct employers to make the payment or transfer the pending amount within a time limit. If not complied with, it will be treated as a new offence, punishable under Section 14. An additional fine of ?100 per day can also be imposed for continued delay.

CONCLUSION:

The EPF Act imposes strict penalties for employers who fail to meet their legal responsibilities. Non-compliance—whether by delay, default, or dishonesty—can attract serious consequences, including imprisonment and financial penalties. Employers are advised to ensure timely contributions, maintain proper records, and follow due process to stay compliant and avoid legal trouble.

The Micro, Small and Medium Enterprises Development (MSMED) Act, 2006, has played a crucial role in protecting the interests of micro and small enterprises. Various judicial pronouncements have clarified its provisions and established precedents. Below are some significant case laws that have shaped the interpretation of the MSMED Act:

• The Indur District Co-operative Marketing Society Ltd. v. Microplex (India), Hyderabad (2016) (3) ALD 588

The Court held that the supplier need not be registered or have a registered office within the jurisdiction of the Facilitation Council; it is sufficient if the supplier is located within the Council’s jurisdiction.

• Silpi Industries v. Kerala State Road Transport Corporation and Anr. (2021) SCC OnLine SC 439

The Supreme Court ruled that registration under the MSMED Act at the time of contract performance is essential.

• Uttarakhand Power Corporation Ltd. v. Mahaveer Transmission Udyog Pvt. Ltd.

The Court, relying on Goodyear India Limited v. Norton Intech Rubbers Pvt. Ltd., held that deposits under Section 19 must be made in cash, and alternative modes such as bank guarantees are not permissible.

• Kotak Mahindra Bank Ltd. v. Girnar Corrugators Pvt. Ltd. (2023) LiveLaw (SC) 12

The Madhya Pradesh High Court ruled that the MSMED Act prevails over the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002, due to the overriding effect of Sections 15 to 23.

• Bajaj Electricals Ltd. v. Chanda S. Khetawat and Anr.

The Bombay High Court emphasized that the MSMED Act was enacted to ensure smooth and timely payments to micro and small enterprises and has overriding authority over conflicting laws.

• Magnus Opus IT Consulting Pvt. Ltd. v. Artcad Systems (2022) LiveLaw (Bom) 354

The Bombay High Court observed that if the MSME Facilitation Council fails to conclude arbitration within 90 days, as mandated by Section 18(5), the arbitration process becomes ineffective, and the aggrieved party must seek recourse under Section 29A of the Arbitration and Conciliation Act.

• NBCC (India) Ltd. v. State of West Bengal and Prs. (2022) LiveLaw (Cal) 214

The Calcutta High Court ruled that objections to the applicability of the MSMED Act to works contracts must be raised and resolved within arbitration proceedings before the MSME Council.

• Gujarat State Civil Supplies Corporation v. Mahakali Foods Pvt. Ltd. (2022) LiveLaw (SC) 893

The Supreme Court held that a reference to the MSME Facilitation Council is valid even when an independent arbitration agreement exists, allowing the Council to proceed under Section 18.

• Steel Authority of India & Anr. v. MSEFC AIR (2012) Bom 178

The Bombay High Court clarified that arbitration under Section 18 of the MSMED Act does not invalidate an independent arbitration agreement unless inconsistencies arise.

• Reliance Communications Ltd. v. State of Bihar, Patna HC WP 8077/2018

The Patna High Court ruled that Section 18(3) does not imply that a conciliator can act as an arbitrator unless agreed upon by the parties.

• Cummins Technologies India Pvt. Ltd. v. Micro and Small Enterprises Facilitation Council, WP 7785/2020 Allahabad HC

The Allahabad High Court held that Section 18(3) of the MSMED Act, which allows the MSEFC to arbitrate disputes, overrides Section 80 of the Arbitration Act.

• Ved Prakash v. P. Ponram, OSA No. 231/2019 Madras HC

The Madras High Court confirmed that, while the MSME Council may proceed with arbitration after conciliation, the same member cannot act as both conciliator and arbitrator without mutual consent.

• Indian Oil Corporation Ltd. v. FEPL Engineering (P) Ltd. C.M. No. 19356/2019 Del HC

The Delhi High Court clarified that the location of the supplier determines the arbitration venue, whereas the arbitration agreement dictates the arbitration seat.

• Fives Stien India Project Pvt. Ltd. v. State of Madhya Pradesh, MANU/MP/0565/2018

The Madhya Pradesh High Court ruled that the 90-day limit for MSME Council arbitration is directory, not mandatory.

• Goodyear India Ltd. v. Norton Intech Rubbers Pvt. Ltd. (2012) 6 SCC 345

The Supreme Court, relying on Snehadeep Structures Pvt. Ltd. v. Maharashtra Small-Industries Development Corpn. Ltd. (2010) 3 SCC 34, held that courts cannot waive or reduce the mandatory 75% pre-deposit requirement under Section 19, but they may allow instalment payments.

Chapter I of Part II of the Arbitration and Conciliation Act, 1996 (Sections 44 to 52) deals with the recognition and enforcement of foreign arbitral awards under the New York Convention (1958) by Indian courts. On the whole, Indian  Courts have a pro-enforcement stand making  India an arbitration-friendly jurisdiction, aligning with global arbitration standards.

Section 44 defines a foreign award as an arbitral award arising from disputes of a commercial nature, made in a country that is a signatory to the New York Convention and notified by the Indian government. As per Section 45, if a party initiates a legal suit despite an arbitration agreement, the court must refer the parties to arbitration, unless the agreement is invalid. Again Section 46 says that a foreign award is considered binding and can be relied upon in any legal proceedings in India.

The Enforcement Procedure of a foreign award is dealt in Sections 47 to 49. As per Section 47 a party seeking enforcement must submit:

1. The original or certified copy of the award.
2. The original or certified arbitration agreement.
3. A certified translation if the award is in a foreign language.

As per Section 48, the Courts may refuse enforcement of a foreign award only on limited grounds, similar to Article V of the New York Convention, including:

1. Lack of proper notice to a party.
2. Incapacity of parties or invalid agreement.
3. Award beyond the scope of arbitration.
4. Violation of natural justice or improper procedure.
5. Award set aside in the country where it was made.
6. Violation of Indian public policy (e.g., fraud, corruption, or fundamental legal principles).

As per Section 49, if no valid objections are raised under Section 48, the award is deemed a decree of an Indian court and is enforceable as a domestic court judgment.

As per Section 50, an appeal can be filed against a court decision refusing enforcement of a foreign award but not against a decision allowing enforcement. Section 52 clarifies that other laws and treaties concerning foreign awards remain unaffected.

INTRODUCTION: –

 Choosing between a declarative suit and an injunction suit can often be confusing, as these remedies serve distinct purposes and also differ in their scope and impact.

 A declarative suit seeks a formal declaration from the court regarding the legal rights and obligations of the parties involved. It is not intended to grant damages or enforce any particular course of action. Rather, it clarifies the existing legal relationship, bringing certainty and preventing misunderstandings in the near future. This clarity can avoid the need for lengthy and potentially expensive litigation, saving time and money.

In contrast, an injunction suit seeks a court order to direct a party to either perform or refrain from performing a specific act. It is a proactive remedy, temporary or permanent in nature, intended to prevent ongoing or imminent harm. Compared to declaratory judgment, injunction is often seen as more powerful remedy but its success depends on proving the potential for immediate and irreparable harm.

METHOD

The method used in this research paper is by reviewing a case by the Honorable Supreme Court of India, Anathula Sudhakar v P. Buchi Ready (Dead) by Lrs & Ors dated 2005 March, 2008, (2008) 4 SCC 594.

CASE FINDINGS

In Anathula Sudhakar v P. Buchi Ready (Dead) by Lrs & Ors the Honorable Supreme Court observed the following regarding Bare Injunction, Possession and declaratory reliefs.

In the para11 of the above referred judgment the Honorable Supreme Court held as follows

The general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and/ or possession, with injunction as a consequential relief, are well settled. We may refer to them briefly:

1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

• Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

• Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

In para17 of the above referred judgment the Honorable Supreme Court summarizes its findings and held that:

1. Where a cloud is raised over plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

• As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

• But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

• Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.

The court however clarifies that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff’s title by the defendants or challenge to plaintiff’s title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person’s title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff’s title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.

CONCLUSION

The chosen case review provides us a great example of how the courts have distinguished between these remedies and assessed their suitability in the specific context. Choosing between a declaratory suit and an injunction suit requires careful consideration of the desired outcomes and the available evidence. Declaratory suits offer the clarity of a formal declaration of rights and obligations, removing uncertainty and paving the way for future action. They are particularly effective in a dispute where the legal relationships are unclear or  in the case of contested titles. However, they lack the immediate action or protection of an injunction. Injunction suits, on the other hand, are potent tools for preventing imminent harm or preserving the status quo. They can swiftly halt ongoing interference or potential future disturbances. However, in order for them to be successful they must make a convincing argument for immediate or irreversible injury. Ultimately, the choice rests on understanding the specific legal issue and the desired result.

REFERENCES

• SCC Online

Authored by

THOMAS K JOSEPH

SLCU, CHRIST DEEMED TO BE UNIVERSITY

Intern

MENTO ASSOCIATES

INTRODUCTION

The weaponization of domestic abuse allegations for one’s own benefit casts a shadow over the court system in India. The Protection of Women from Domestic Violence Act, 2005 (hereafter referred to as ‘Act’) is considered to be one of the most important legislations designed to protect women. It provides legal protection not only from physical abuse but also from emotional, sexual and economic abuse within their matrimonial homes. However, there have been concerns emerging regarding the misuse of the Act, leading to innocent people facing dire consequences from false accusations.

METHOD

This research uses both qualitative and quantitative approach. The qualitative analysis was done through an examination of Supreme Court judgments, High Court judgment, legal documents and scholarly articles and the quantitative analysis was done by referring to government reports and NGO on the misuse of the Act.

RESULTS

The quantitative analysis shows that since the law’s passage, the number of DVA claims submitted has significantly increased, but there has also been a rise in the number of cases that have been dismissed for lack of proof or misuse. According to estimates, between 5% and 10% of cases are rejected because of misuse. The misuse of the Domestic Violence Act by women was reported by various NGOs and conviction rate was around 2% in 2014, this was later informed to the Rajya Sabha by the Government stating that “Sometimes ” provisions of the Domestic Violence Acts were misused. The Madras High court Bench also observed that the Act suffers from inherent flaws which tempt women to misuse its provisions,  resulting in men to dread being prosecuted under the law without any reason or wrong. Recently the Bombay High court also raised its concern regarding the rise in trend of women misusing the Act in order to build pressure on their estranged husbands.

The Qualitative analysis was done by reviewing case laws and documents related to the Act. Various courts after looking at the misuse of the Act issued few guidelines to be followed by magistrates while dealing with cases that fall under this Act. The Punjab and Haryana HC declared in the case Jaspal Kaur v State of Punjab (2011 SCC Online P&H 14859) that it is not necessary to send notice to all the respondents under section 13 of DV Act especially when it comes to distant relatives, In such cases the Magistrate is expected to carefully think about and consider all the information in regards with the case and then decide whether to send a notice to them or not. In the case of Mohd. Hussain v Shabnam Ara (CRM(M) No.714/2022) wherein the High court of J and K declared that if the magistrate feels the evidence is insufficient then the Magistrate can dismiss the proceedings of the case. In a recent case of the High court of Karnataka (Pramod R S v Lakshmi M R, Criminal Petition No.1511 of 2023), the court declared that if a DV case is filed by the wife after the filing of divorce by the husband in such a scenario the DV case won’t be of much importance but dismissing it would lead to the defeat of the Act. So in order to prevent injustice the DV case will be allowed to proceed but only based on the facts and circumstances of the case. In a similar case by the High court of Karnataka (Nagesh Gunddayal v State of Karnataka, Criminal Petition No. 1511 of 2023) it was stated that the case would lose its significance due to fact that the complaint is made, after receiving the divorce notice from her husband.

CONCLUSION

The Protection of Women from Domestic Violence Act (PWDVA), 2005, is a landmark legislation in India created with the sole purpose of shielding women from domestic abuse. The Act includes verbal, economic, emotional, and physical abuse in its broad definition of domestic violence. It offers a number of remedies, such as monetary compensation, residency orders and protection orders. However, since its inception, the Act has faced a number of objections and challenges, raising concerns about its validity and legitimacy. Due to personal motivations, this has resulted in instances when women use false charges, severely harming the wrongfully accused both financially and emotionally. Although the Act was created with the goal of protecting women, it is sometimes utilized to harm innocent people.

It’s time to stand up for those falsely accused under domestic violence laws. Those who make false claims, fueled by malicious intent, must face consequences. Amending the Act to include specific penalties for false accusations is crucial. We need to hold the misusers of these laws accountable for the financial and emotional damage they inflict on the wrongly accused.

It’s not uncommon for petitioners to include the husband’s entire family in their complaints, solely to inflict pain and suffering. To combat this unnecessary litigation and protect the accused, time-bound trials should be made mandatory under all domestic violence laws. This will provide much-needed relief to those wrongly accused and prevent them from enduring prolonged torment.

Let’s ensure justice for all. Let’s protect the wrongly accused by holding the false accusers accountable.

REFERENCES

• Live Law
• The Hindu
• SCC Online
• https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4768593/
• Swapan Kumar Das v. State of W.B., 2023 SCC Online Cal 242
• Bare Text of The Protection of Women from Domestic Violence Act, 2005
• High court of Karnataka
  
  

Authored by

THOMAS K JOSEPH

II Year SLCU

Intern

MENTO ASSOCIATES

• Adoption of child under Juvenile Justice Act 2015:

1. First obtain Adoption order issued by the District Magistrate.

2. The birth certificate will be issued within 5 working days on the receipt of application by registration authorities in the state, from the specialized adoption agency or adoptive parents after the receipt of order issued by the District Magistrate Court.

• Adoption of child under Hindu Adoption and Maintenance Act 1956:

1. Adoption is valid based on registered adoption deed executed and registered by both the parties’ i.e. biological parents and adoptive parents.

2. The birth certificate will be issued on the receipt of application by registration authorities in the state to issue birth certificate from adoptive parents after the receipt of registered adoption deed.

3. Exception: In case of adopted child is more than one year old and his /her birth is not found registered earlier, then as per prescribed procedure of section 13(3) of the Registration of Birth and Death Act, 1969 (amended in 2023), an order of District Magistrate or Sub-Divisional Magistrate or by an Executive magistrate authorised by the District Magistrate should also be obtained before filing an application to registration authorities in the state to issue birth certificate.

• Ref: Circular bearing No. 2037376/2023/CARA dated 03-11-2023 issued by Ministry of Home Affairs, Govt. Of India.

Authored by:

Adv. Shirin Yusuf

FOR MENTO ASSOCIATES

Advocates

The era of digitization gave birth to entirely new markets which deal with the collection, organization, and processing of personal information, whether directly or as critical component of business. The outburst of Covid-19 and the lock-down has led to several challenges in various sectors regarding data privacy and protection; hence protection of data and privacy plays a much important role now, as there are several loopholes in which data can be breached and its security is at major risk.

Section 2 (o) of Information Technology Act,2000 defines “data” which means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalized manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts, magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer.

Data protection is the process of safeguarding important information from corruption, compromise or loss. Through the landmark judgment of Justice K.S Puttaswamy vs Union of India (AIR 2017 SC 4161), the Hon’ble Supreme Court held right to privacy is declared as a fundamental right under Article 21 of Indian Constitution. This judgment made general public realize that their data is intrinsic, important and therefore worthy of protection.

At present India does not have specific legislation in regard to data protections and privacy, although a Personal Data Protection Bill, 2019 was introduced in Lok sabha. There are many ambiguities as to the implementation of this bill, but there are some important enactments which focuses and governs privacy protection and personal data
• Information Technology Act, 2000.
• The Right to Information Act,2005
• Information Technology (Guidelines for intermediaries and digital media ethics code) Rules, 2021

Section 43A of the IT Act 2000 provides that whenever a corporate body possesses or deals with any sensitive personal data or information, and is negligent in maintaining a reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person, then such body corporate shall be liable to pay damages to the persons so affected.

Section 72A of the IT Act 2000 provides that any person (including an intermediary) who, while providing services under the terms of a lawful contract, has secured access to any material containing personal information about another person, with the intent of causing or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person, shall be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both.

Section 8 (1)(j) of Right to Information Act – This section provides that the authorities are under no obligation to provide information to citizens regarding inter alia information which relates to personal information, the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information.

The Information technology (Guidelines for intermediaries and digital media ethics code) Rules, 2021 have been passed under sections 69A(2), 79(2)(c) and 87 of the Information Technology Act, 2000. Rule 4(2) provides that a significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order passed by a court of competent jurisdiction or an order passed under section 69 by the Competent Authority as per the Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009. This rule is clearly a major threat to the privacy of the users and this was challenged by Whatsapp in Delhi High Court to quash a new government rule which is against right to privacy.

CONCLUSION:
India has gone more digital in this covid-19 pandemic era, than ever before. In this digital era, data is a valuable resource that needs to be protected and regulated. Right to privacy cannot be exercised effectively unless data is protected through a legal regime; therefore implementation of personal data protection bill becomes very important.

Authored by

RAMYA C N
Associate

1. Introduction

These rules apply to all goods and services bought or sold over any digital or electronic network. These even apply to an e-commerce entity, not established in India, but systematically offers goods or services to consumers in India.

According to these rules, an e-commerce entity,  means any person who owns, operates or manages a digital or electronic facility or platform for electronic commerce, but does not include a seller using the said platform.

An inventory e-commerce entity is an e-commerce entity which owns the inventory of goods and services and sells such goods or services directly to the consumers.

A market place e-commerce entity is an e-commerce entity which provides an information technology platform on a digital or electronic network to facilitate transactions between buyers and sellers.

2. Duties of E-Commerce Entities:

1. An E-commerce entity shall be a company incorporated under the Companies Act 1956 or the Companies Act 2013 or a foreign company covered under clause (42) of section 2 of the Companies Act, 2013 or an office, branch or agency outside India, owned or controlled by a person resident in India.

• E-commerce entities shall appoint a nodal person of  contact who is resident in India, to ensure compliance with provisions of the Consumer protection Act, 2019 or the rules there under.

• Every e-commerce entities shall provide its legal name, principal geographic address of his headquarters and all branches, names and details of its website, email address and mobile numbers of customer care and grievance officer on its platform.

• Every e-commerce entity shall establish an adequate grievance redressal mechanism and shall appoint grievance officer for consumer grievance redressal and shall display his name, contact details, designation etc.

• Grievance officer shall acknowledge the receipt of any complaint within forty-eight hours and redresses the complaint within one month from the date of receipt of the complaint.

• E-commerce entity cannot impose cancellation charges on consumers, cancelling after confirming purchase, unless they incur similar charges if they cancel the purchase.

3. Liabilities of marketplace e-commerce entities

1. To require sellers through an undertaking to ensure that descriptions, images etc pertaining to goods or services on their platform is accurate.

• To provide the details about the sellers offering goods and services including the name of their business, geographic address, customer care number, any rating or feedbacks etc and they shall provide such information to consumer on request.

• They shall provide ticket number for each complaint lodged, through which the consumer can track the status of the complaint.

• They shall provide all information relating to return, refund, exchange, warranty, guarantee, delivery, shipment, modes of payment, and grievance redressal mechanism.

•  They shall also provide information on payment method, security of such payment methods, any fees or charges payable by users, the procedure to cancel regular payments and the contact information of payment service provider.

4. Duties of sellers on marketplace e-commerce entity

1. Sellers cannot refuse to take back goods or withdraw or discontinue services purchased or refuse to refund consideration, if such goods or services are found to be defective, deficient or spurious, late delivered etc.

• They shall have a written contract with the respective e-commerce entity in order to undertake or solicit such sale.

• They shall appoint grievance officer for consumer grievance redressal, who shall acknowledge the receipt of any consumer complaint within forty-eight hours and redresses the same within one month.

• They shall ensure that the advertisements for marketing of goods or services are consistent with the actual characteristics, access and usage conditions of such goods or services.

• They shall provide the e-commerce entity their legal name, principal geographic address of their headquarters and all branches, the name and details of their website, their e-mail address, customer care contact details, GSTIN, PAN etc.

• The seller shall further provide the following information to the e-commerce entity:
• Price of goods and services with the breakup price, together with delivery charges, handling charges, conveyance charges, applicable tax etc.
• Expiry date of goods being offered for sale.
• Details of country of origin of goods.
• Name and contact details of grievance officer
• Name and details of importer and guarantees of the imported products.
• Information related to terms of exchange, returns, refund, delivery, shipment, guarantees, warranties etc.

 5.  Duties and liabilities of inventory e-commerce entities:

1.  They shall provide accurate information regarding return, refund, exchange, warranty, guarantee, delivery, shipment, mode of payments and grievance redressal mechanism in a clear and accessible manner.

• They shall also provide information regarding payment methods, procedure to cancel payments, fees or charges payable by users, charge back options etc.

• They shall provide a ticket number for each complaint lodged through which the consumer can track the status of complaint.

• They shall provide total price in single figure of any  goods and services along with the  breakup price for the goods and services.

• They shall ensure that advertisements of goods and services are consistent with actual characteristics, access and usage conditions of such goods or services.

• They shall not refuse to take back goods or discontinue services or refuse to refund consideration, if such goods or services are defective, deficient etc.,