Mentoassociates.com – Legal Articles

1. A company can be voluntarily wound up under the following circumstances:
a. If the period fixed for the duration of the company has expired and company passes a resolution for winding up in a general meeting.
b. If the company passes a special resolution to wind up voluntarily.

2. When a company has passed a resolution for a voluntarily winding up it shall within 14 days give a notice of the resolution in the official gazette and also in some newspaper. A voluntary winding up is deemed to have commenced from the time when the resolution of voluntary winding up is passed by the company. A company shall cease all its all business activities once a winding up process is commenced.

3. The directors of the company or the board of directors shall make a declaration to the effect that they have made a full enquiry into the affairs of the company and that the company has no debts or that it will be able to pay its debts within 3 years from the commencement of the winding up process. This declaration needs to be made within 5 weeks immediately preceding the date of passing of resolution for winding up and the same needs to be delivered to the Registrar for registration before the date of resolution. The declaration needs to be accompanied by a copy of the report of the auditors of the company.

4. The winding up where a declaration is made and delivered to the Registrar is known as “A Members voluntary winding up” and winding up in which the declaration is not made and delivered is known as “A creditors voluntary winding up”.

PROVISIONS APPLICABLE TO MEMBERS VOLUNTARY WINDING UP:
1. The company in general meeting shall appoint one or more liquidators for the purpose of winding up the affairs and distributing the assets of the company. On the appointment of the liquidator all the powers of the Board of directors and of the managing director and whole time directors shall cease, except for the purpose of giving notice of appointment of the liquidators to the Registrar.

2. The company shall give notice to the registrar of the appointment of the liquidator within 10 days of the appointment.

3. The Liquidator has powers to transfer whole or part of the business or property of the winding up company to another company.

4. If the Liquidator is of the opinion that the company is not able to pay its debts in full within the period stated in the declaration under Sec.488 than he shall summon a meeting of the creditors and shall lay before the meeting a statement of assets and liabilities of the company.

5. If the winding up process is continuing for more than 1 year, then the liquidator shall call a general meeting of the company at the end of each year and present an account of his acts and dealings and of the conduct of the winding up during the preceding year.

6. Once the affairs of the company are fully wound up, the liquidator shall make up an account of the winding up and call a general meeting of the company to lay the account before it. The meeting shall be called by advertisement published in the official gazette and in some newspaper. Within one week after the meeting the liquidator shall send to the registrar and the official liquidator a copy each of the account and shall make a return to each of them of the holding of the meeting. The registrar shall register the account and the returns forthwith.

7. The official liquidator on receiving the account and return shall make a scrutiny of the books and papers of the company and if found that the affairs of the company have not been conducted in the manner prejudicial to the interest of its members or to public interest than he shall make a report to that extent to the tribunal and the company shall stand dissolved. If the finding of the official liquidator is otherwise, the tribunal can direct the official liquidator to make further investigation into the affairs of the company.

8. On the receipt of the report of the official liquidator on further investigation the tribunal either make an order that the company stands dissolved or make such other order.

1.As per Section 353 of The Karnataka Municipal Corporation Act 1976, the owner or occupier of every place, where trade/business as mentioned in Schedule X of the said act are carried on and which are within the limits of the Corporations shall apply and obtain from the said corporation, a license (Trade Certificate). Without the said certificate such trades cannot be carried on in such places. As per this provision, either the business owner or the premise owner can apply and get the trade license. However if the occupier of the premise (the business owner who is occupying the premise on rent or lease) applies to the corporation, having satisfied all other eligibility, the corporation cannot refuse the same saying that the same will be issued only in the name of the owner of the premise.

2. Schedule X of the Karnataka Municipal Corporations Act 1976 lists the trades and industries which require a trade licence from the concerned municipal authorities. In Bangalore, BBMP issues trade licences to various shops and industries within its jurisdiction. The health department of BBMP is in charge of these matters. The health officer of BBMP can close a trade premises which does not have a trade licence.

3. The Licence issued expires on 31st March each year. The application for renewal needs to be done before last day of February each year. For renewal of trade licence, an affidavit on a Rs. 100/- stamp paper needs to be filed. The said affidavit shall state that trade will continue to be carried on as per regulations and other laws in force.

4. If a person has multiple trades in the same premises, then he needs to pay a compounded fee equal to twice the highest fee payable for the trades or commodities he is dealing in.

5. Apart from the trade licence fee, a separate fee needs to be paid for using power or generator. One needs to pay either for the sanctioned power load or generator whichever is of higher capacity.

6. The various trades and industries are mentioned in Schedule X of the Act and the applicable fees are also mentioned.

7. BBMP has also setup special trade health licence clinics which functions from 1st Feb to 15th Feb every year where renewal applications are accepted and processed. These clinics function under the various zones. New applications for trade licence should be handed over only at the BBMP range offices.

8. Documents required for the trade licence are as follows:
i) Property owner’s consent letter.
ii) Property tax paid receipt.
iii) NOC from the neighbours.
iv) Building Plan of the trade premises.
v) Occupancy Certificate.
vi) Khata Certificate.

9. Normally the inspection of the premises will be done within 3 working days. Maximum time period for the issuance of trade license is 7 days.

1. As per this act, matters regarding intestate succession, special property of females, marriage, dissolution of marriage, maintenance, dower, guardianship, Gifts, Trust and Wakfs, where the parties are Muslims, shall be decided on Muslim Personal Law ( Shariat)

2. A Muslim may by making declaration according to the sec.3 of the act, can bring in matters of adoption, wills and legacies under the purview of Shariat, binding himself, his minor children and their descendants.

1. This Act protects the rights of Muslim Women who have been divorced by their husbands or who have obtained the divorce from their husbands.

2. A divorced Muslim women is entitled to reasonable and fair provision and maintenance within Iddat period from her former husband. Similarly the divorced Muslim woman is entitled to all the properties given to her before or at the time of marriage or after her marriage by her relatives, friends, husband, relatives of husband and friends of the husband.

3. A Divorced Muslim Women is also entitled to an amount equal to the sum of dower agreed to be paid to her at the time of her marriage or at any time there after.

4. If a divorced Muslim Women herself maintains the children born to her before or after her divorce, the husband shall make her a reasonable and fair provision and pay her maintenance for 2 years from the date of birth of children.

5. If the husband fails to discharge his duties under this act, the wife is entitled to make an application to jurisdictional magistrate for suitable orders. If a husband fails to comply with the order of the magistrate, the magistrate is empowered to sentence such person to an imprisonment for a term which may extend to 1 year.

6. A magistrate can also pass necessary orders of maintenance, against the relatives of divorced Muslim Women who has not remarried and who is not able to look after herself. The relatives may include children, parents etc. If a divorced woman has no relatives the magistrate can order the state Wakf board to pay such maintenance.

In Daniel Latif –vs- Union of India, AIR 2001 SC 3958 the Supreme Court held that the husband is duty bound to give maintenance to the divorced wife and she is entitled for lifelong post divorce maintenance within iddat period

1. If the marriage was consummated, the wife may marry another husband after the completion of iddat. If the marriage was not consummated she can marry immediately. If the marriage was consummated and if the husband had up to 4 wives at the time of divorce (including the divorced wife) he may marry another wife after the completion of iddat of the divorced wife.

2. If the marriage was consummated the wife is entitled to immediate payment of the whole of the unpaid Dower. If the marriage was not consummated and the amount of Dower is specified then she is entitled to half of the amount. If the marriage was consummated and no amount is specified she is only entitled to 3 articles of dress. If marriage is dissolved upon the apostasy of the wife she is entitled to the whole of dower if consummation has taken place.

3. When the divorce becomes irrevocable, mutual rights of the inheritance comes to an end. If the divorce was pronounced during the death illness, the wife’s right to inheritance continues to the expiry of her iddat.

4. After the divorce has become irrevocable, if the divorced couple engages in sexual intercourse the same is unlawful. Children as a result of such intercourse are illegitimate.

5. The parties are generally permitted to remarry after the divorce.

1. Father is bound to maintain his sons until the age of puberty and daughters until they are married. Even if the children are in the custody of the mother, father is duty bound to maintain them.

2. If the father is poor and incapable of earning the mother is bound to maintain the children. If both the father and mother are incapable to maintain the children, the duty lies on the grandfather.

3. Children in easy circumstances are bound to maintain their poor parents. A person is bound to maintain his paternal and maternal grandparents if they are poor.

4. If the father neglects to maintain his legitimate or illegitimate children, the children can sue him under the provisions of Sec.125 of Cr PC, 1974.

1. Application for appointment of a guardian for the property or person of a minor comes under the purview of Guardians and Wards Act 1890. Minor is a person who has not completed the age of 18 years. The courts normally keep in mind the welfare of the minor while passing an order on guardianship.

2. The mother is entitled to the custody of the male child until he has completed the age of 7 years and the female child until she attains puberty. This right continues even after she is divorced by the father of the child. If the mother remarries, custody of the children goes to the father.

3. After the mother, the custody of the boy under the age of 7 years and the girl who has not attained Puberty belongs to the female relatives in an order.

4. In the default of mother and other female relative the custody of boy below 7 years and the girl who has not attained puberty goes to father and other relatives in an order. However a male is entitled to the custody of an unmarried girl, only if he stands within the prohibited degree of relationship with her (consanguinity and affinity). Even if a girl is married, but has not attained puberty, the mother is entitled to the custody of the girl against the husband of the girl.

5. Father is entitled to the custody of boy over 7 years of age and unmarried girl who has attained Puberty. In default of father the custody belongs to paternal relations in an order.

6. Custody of illegitimate children belongs to mother and her relations.

7. The following persons are entitled to be the guardian of the property of the minor in the following order:
i) The father.
ii) The executor appointed by will of father.
iii) The father’s father.
iv)The executor appointed by will of father’s father.
In the absence of the above legal guardians the court can appoint a guardian for the property of the minor.

8. The person who has voluntarily placed himself in charge of the person and property of a minor is called a de facto guardian. He is neither a legal guardian nor a guardian appointed by the court.

9. A legal guardian normally has no power to sell the property of the minor. But he has the power in few exceptional cases. The guardian appointed by the court can alienate or encumber the property of the minor only with the permission of the court. A de facto guardian has no power to alienate or encumber the property of minor. A guardian of a minor cannot bind a minor or his estate by an agreement of purchase of an immovable property.

10.The thumb rule for custody of children is in whose custody, the interests of the minor children are best protected. The same has been upheld by the courts in Syed Saleemuddin-vs-Dr. Rukhasana (AIR 2001 SC 2172) and Chandrakala Menon –vs- Vipin Menon (1993) 2 SCC 6.

In Noor Saba Khatton –vs- Mohammaed Quasim AIR 1997 SC 3280, Supreme Court held that the Muslim father is duty bound to pay maintenance to his children until they are capable of managing themselves or until they are married

1. Dower is also known as Mahr. It is money or property which a Muslim wife is entitled from the husband in consideration of marriage. A husband can settle any amount he likes by way of dower upon his wife. The amount of dower may be fixed either before the marriage or at the time of marriage or after the marriage. The Dower amount can be increased after marriage. A contract of Dower made by a father on behalf of the minor son is binding on the son.

2. If the amount of Dower is not fixed, the wife is entitled to what is known as Proper Dower. The wife is entitled to Proper Dower even if the marriage was performed with a condition that she should not claim any Dower. The Proper Dower is fixed taking into consideration the amount of Dower settled upon other female members of wife’s family.

3. The Dower becomes confirmed under the following situations:
a. By consummation of marriage.
b. By valid retirement.
c. By the death of husband/wife.

4. The Dower which is payable on demand is known as ‘Prompt Dower’. The Dower which is payable on dissolution of marriage by death or divorce is known as ‘Deferred Dower’

5. The wife may remit the Dower or any part thereof in favour of the husband or his heirs even without consideration. If the Dower is not paid the wife or her heirs can file a suit to claim the same. The Muslim wife may refuse to live with her husband and admit him to sexual intercourse so long as the Prompt Dower is not paid.

6. The heirs of a deceased Mohamadean are liable for Dower debt of the deceased, proportionate to their share in the estate of the deceased. The Dower is a debt, at the same time it is an unsecured debt. The wife is not entitled for a charge on the husband’s property though such a charge may be created by an agreement.

7. A widow who has lawfully obtained possession of the property of her late husband has the right to retain that possession until her Dower is paid. The right to hold possession does not give the widow any title to the property. But if she is disposed she can sue for recovery of Possession. The right to retain the physical possession of the property does not arise to the Muslim wife during the continuation of marriage; it arises only on the dissolution of marriage either by death or divorce. A Muslim widow who retains possession of her husband’s property under a Dower claim has no right to alienate the property by sale, mortgage etc. If she alienates the property, the alienation is valid only to the extent of her share. It does not affect the share of other heirs.

1. Under the Muslim law, the husband is duty bound to maintain wife provided (i) she is faithful to him and (ii) obeys his reasonable orders. If a wife refuses herself to the husband due to non payment of prompt dower or she leaves the house of husband on account of his cruelty, the wife is entitled for maintenance. If the husband does not maintain the wife, the wife is entitled to sue him for maintenance or she can apply for an order of maintenance under the provisions of CrPc, 1974.

2. After divorce, a Muslim wife is entitled for maintenance during the period of iddath. If a wife is not informed about the divorce, she is entitled for maintenance until the same is informed to her. Agreements between husband and wife for future maintenance are perfectly legal.

1. Master Plan -2015 provides a uniform FAR of 2.50 irrespective of road width in the Central Business District of Bangalore.

2. In the Master Plan- 2015, 20% of the residential building is permissible for commercial use.