Mentoassociates.com – Legal Articles

There is a prescribed time period within which a person, who has been denied of any rights or who wants any particular relief from a court or an authority shall apply to the concerned authority. Law does not come to the assistance of a person who sleeps over his rights. With these objectives, The Limitation Act, 1963 was enacted.

 
 There is a bar of limitation for suits, appeals and applications which are made after a prescribed period and if made after the prescribed period, then they will be dismissed. If the prescribed period for a suit, appeal or application expires on a day when the court is closed, the same may be instituted on the day the court re-opens.

 A court has the power to admit an appeal or an application made after the prescribed period, if the party satisfies the court that he had sufficient cause for not preferring the appeal or application within the specified period. If a person has a legal disability, like insanity or minority, he can file a suit or apply to execute a decree, within the period of limitation after the legal disability ceases.

 While computing the period of limitation, the time period spent in obtaining the certified copy of the order of the lower court, which is being challenged, can be excluded.

 In calculating the period of limitation for which a notice has been given or which the previous sanction of the government or any authority is required, the period of such notice or the time required for such consent shall be excluded.

 In computing the period of limitation of any suit the time during which the defendant has been absent from India shall be excluded. If a person who has the right to institute a suit or make an application dies before the right accrues, then the period of limitation will be computed from the time when there is a legal representative of the deceased.

 In the case of any suit or application which is based upon the fraud of the respondent or is based on the consequences of a mistake the period of limitation shall begin from the point the applicant has discovered the fraud or mistake. Where after the institution of the suit, a new plaintiff or defendant is substituted or added, the suit shall as regards him be deemed to have been instituted when he was so made a party.

 In the case of a suit for compensation for an act, which does not give rise to a cause of action unless some specific injury actually results there from, the period of limitation shall be computed from the time when the injury results.

Information Technology Act 2000 enlists various cyber offences and their punishments. The Acts gives serious punishment for tampering with computer source documents. Whoever intentionally conceals, destroys or alters any computer source code is liable for punishment with imprisonment up to 3 years or with fine which may extend up to Rs.2 lakh or with both. 

The Act views hacking with utmost seriousness. Whoever with intension to cause a wrongful damage to the public or any person destroys, deletes or alters any information residing in a computer resource commit hacking. Whoever commits hacking shall be punished with imprisonment up to 3 years or with fine which may extend upto Rs.2 lakh or with both.

  Whoever publishes information which is obscene in electronic form shall be punished with imprisonment which may extend to 5 years and with fine which may extend to Rs.1 lakh.  In the event of a second conviction for a similar offence, then imprisonment may extend to 10 years and with fine which may extend to Rs.2 lakhs.

  A certifying authority or any employee of such authority who fails to comply with an order of the controller may be punished with   imprisonment for a term not exceeding 3 years and also with fine not exceeding Rs.2 lakhs or both.

 If the subscriber or any person in-charge of any computer resource fails to assist any agency of the government when ordered to intercept any information transmitted through any computer resource, he may be punished with imprisonment for a term which may extend to 7 years. Similarly any person who secures access or attends to secure access, to a protected system will be punished with imprisonment for a term which may extend to 10 years and also be liable to fine.

Whoever makes any misrepresentation to or suppresses any material fact from the controller or the Certifying Authority for obtaining any license or Digital Signature Certificate, may be punished with imprisonment which may extend to 2 years or with fine which may extend to 1 lakh or with both.

Whoever knowingly creates, publishes or otherwise makes available a Digital Signature Certificate for any fraudulent or unlawful purpose shall be punished with imprisonment for a term which may extend to 2 years or with fine which may extend to 1 lakh or with both. The Information Technology Act also applies to an offence or contravention committed outside India by any person if the act or conduct constituting the offence or contravention involves a computer, computer system or computer network located in India.

 Any computer, computer system, floppies, compact discs, tape drives or any other accessories related thereto, in respect of which any provision of the Information Technology Act, rules, orders or regulations made there under has been or is been contravened, shall be liable to confiscation.

The Department of Stamps and Registration of the government of Karnataka has revised the valuation of building rates throughout the state. The new rates are applicable from 1-03-08. The increase in the rates has been almost double in some cases. The same rates have to be used as guideline values while registering transactions in buildings and the stamp duty and registration fee has to be paid on the basis of the new revised rates.

The rates range from Rupees 100 to Rupees 950 per square feet. The buildings have been classified as per their locations like those coming under the jurisdiction of BBMP, other corporations in Karnataka, other Municipalities, other TMCs, other Town Panchayaths and other areas of the state. Different rates have been fixed for different areas. Further there is variation in the rates for Ground and Upper Floors. All upper floors within the same area have same rate.

The revisions in the building rates will cause a major setback to genuine home purchasers looking for a shelter. The increase in building rates will set a chain reaction, further increasing the market rates of properties and the registration and stamp duty expenses. This will further burden the overpriced property market in Karnataka.

There are various legal safeguards for women to rely on, in case they are subjected to cruelty and harassment by husband or in-laws pertaining to matrimonial matters. The teeth of law are very much sharpened to protect the interests of fair sex. 

If a wife reports the incidents of cruelty, mental or physical, or the demand of dowry by her husband or in laws, a police officer is bound to register an FIR and investigate the matter. The police authorities in such cases act in a very mechanical manner. Even if there is no requirement to arrest the accused persons, they tend to immediately arrest the accused persons and put them behind bars. This, many times result in the torture of innocent persons, just because the legal system is weighed in favor of women. There are several instances when women misuse the benefits of law and lodge false complaints to settle personal scores. Though, in the end a court of law may acquit the accused, the trauma in carrying on with the case for years cannot be underestimated.

The accused in matrimonial offences can avail the benefit of anticipatory bail to avoid arrest and resultant torture in the hands of the police. If they sense the possibility of filing of false criminal case by the wife or her relatives, then they are advised to approach the Sessions Court or the High Court for an order of anticipatory bail. As a matter of right, a person cannot ask a court for the grant of anticipatory bail. The court will look into the facts of the case and grant bail in appropriate cases. Once anticipatory bail is granted, the police officials cannot arrest and detain the accused. They can arrest him, but they have to release him immediately.

1)Valid passport is a very essential document for a person to depart from India.

2)There are three types of Passports.
a. Ordinary passport
b. Official passport
c. Diplomatic passport.

3)A passport authority may refuse a passport in the following cases:
a. If an applicant has been convicted by a Court during a period of 5 preceding years.
b. If any criminal proceedings are pending against said person
c. If a warrant or a summons is issued by Court against the applicant.

4)A passport authority may impound a passport in the following cases:
a.If a passport was obtained on the basis of wrong information or suppression of material  information.
b.If the holder of the passport has been convicted by a    Court in India, for any offence involving moral turpitude.
c.If any criminal proceedings are pending against the    passport holder.

5)The Court convicting the holder of a passport for any offence under the Passport Act or the rules made hereunder may also revoke the passport or travel document.

6)There are various offences under the Passport Act which provide punishment for the violation of   various provisions of the Act. It is an offence to furnish false information or ppress any material information while applying for a Passport. Similarly using passport issued to another person, allowing   another person to use one’s passport are all offences under the Passport Act. Customs officers,   Police officers, and Emigration officers are authorized to arrest people who commit offences under the Passport Act.

7)An ordinary passport for persons other than children below the age of 15 years, containing 36 pages  or 60 pages, shall be in force for a period of 10 years or 20 years as the case may be, from the date of  its issue. An ordinary passport for a child below the age of 15 years, containing 36 pages shall be in   force for a period of 5 years, from the date of its issue or until the child attains the age of 15 years,   which ever is earlier.

8)An application for passport may be submitted personally or through a representative carrying an  authority letter, all original documents should be shown and self attested copies attached.

9)Any person having an ECR stamp put on his passport have to get a clearance from the Protector  General of Emigrants,

before they leave the Country. But the passport rules specify a list of persons  for whom ECR stamping is not required. These include all Gazetted governmental officials, all income  tax payers, all professional degree holders, all people with educational qualification of matriculation  and above, all persons above the age of 50, all children up to the age of 18 etc.

There is a trend world over, in particular among companies and corporate not to drag disputes into long drawn courtroom battles. There comes the significance of Arbitration, Mediation, Conciliation and such alternate disputes resolution mechanisms. Here is the added advantage of savings in time as well as the cost of proceedings. Moreover the parties settle the matter in a win- win spirit.

The Arbitration and Conciliation Act, 1996 governs the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards in India. Further it governs the law relating to conciliation. This act has taken into account the UNCITRAL Model Law on International Commercial Arbitration adopted by UN in 1985 and the UNCITRAL Conciliatory Rules (1980).

As per the Arbitration and Conciliation Act, 1996, an arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or it may be a separate agreement. Further an arbitration agreement shall be in writing.

If either of the disputing parties approaches a Court for adjudication of the dispute, in spite of the presence of an arbitration agreement, then the Court has the power to refer the parties to arbitration. The parties to an arbitration proceeding are entitled to approach the jurisdictional court for urgent and interim measures of protection.

The parties are free to determine the number of arbitrators; however the same shall not be an even number. The arbitrator may be a person of any nationality. If there is any justifiable doubt as to the independence or impartiality of an arbitrator, then, he shall not become an arbitrator.

The arbitrational tribunal is also entitled to pass interim measures of protection or to order a party to provide appropriate security. In arbitration proceeding, the parties shall be treated with equality and each party shall be given full opportunity to present his case.

Parties are free to fix the place of arbitration. If there is a disagreement between the parties regarding the place of arbitration, the same shall be decided by the arbitrational tribunal. The proceedings can be conducted in any language as determined by the parties.

With the average life span of Indians on the rise and the mortality rate coming down drastically along with the advancement of modern medicine, the number of senior citizens in the population is on rise. Coupled with this, the disintegration of social fabric, the disappearance of joint family system and the fast pace of modern life, have left many senior citizens economically and socially vulnerable during the fag end of their lives.With the idea to provide some social security measure to senior citizens, the Finance Minister of India formally introduced the concept of Reverse Mortgage in India in the last Union Budget. National Housing Bank has issued certain guidelines in this regard. Many banks like State Bank of India have already introduced this concept.

As per this concept, the senior citizens who own a house can mortgage their property to a banker. The banker will make periodic payments (say monthly) to the borrower, during his life time. The borrower need not repay the loan amount during his life time. After the borrower’s death, the house property is sold and the loan amount together with the interest accumulated is recovered by the bank. If the heirs of the borrower can repay the loan together with interest thereon, then they can release the mortgage and inherit the house property.The scheme is available for senior citizens who are above 60 years of age. Married couples can jointly borrow under this scheme. The borrower shall use the property mortgaged as permanent primary residence. The amount of loan that the senior citizens can avail depends on factors like market value of the property, age of the borrower, rate of interest etc.

The loan amount may be periodic (monthly, ½ yearly) or it can be one lump-sum payment. Normally periodic payments are made for monthly maintenance of senior citizens, while lump-sum payments are made for special purposes like medical expenses, home improvement etc. The maximum period of loan is 15 years. Commercial properties are not eligible under this scheme.

The senior citizens are also given a “right of rescission”, ie, they can cancel the scheme availed within 3 business days of finalizing the scheme. In such cases, the entire loan amount will have to be paid by the senior citizens within this 3 days period.

The loan amount will became due and payable when the last surviving borrower dies or intends to sell the home or when the borrower permanently moves out of the home. The borrower has the right to prepay the loan at any time during the loan tenor, which shall not carry any penalty or charge.

When the ownership of a vehicle registered within the state of Karnataka is to be transferred to another person, the transferor shall within 14 days of the transfer, report the transfer to the jurisdictional RTO, in such form and along with the required documents. The transferor shall simultaneously send a copy of the said report to the transferee.

For vehicles registered outside Karnataka, within 41 days of the transfer, the transferor shall forward the NOC from the state of registration to the jurisdictional RTO.

The transferee shall within 30 days of the transfer, report the transfer, to the jurisdictional RTO along with Certificate of registration, prescribed fee, and the report he received from the transferor. Thereafter, the registering authority may cause the transfer of ownership entered in the Certificate of registration.

If a person, in whose name a motor vehicle stands, dies, his successor may make an application for the purpose of transferring the ownership in his name, to the jurisdictional RTO and the RTO may transfer the   ownership in the name of that person.

The statement of objects and reasons to the Karnataka Open Places (Prevention of Disfigurement) Act, 1981 speaks about the disfigurement of public and private buildings and other open places by slogans written and posters pasted indiscriminately. These activities not only spoil the beauty of the buildings, but also obliges the owners of the spaces to incur avoidable expenditure to undo the mischief. Though there are provisions under the Police Act and municipal laws to check this, they are seemed to be not sufficient.

Section 3 of the Act provides for penalty for unauthorized disfigurements by advertisements. Accordingly, whoever, by himself or through any other person, affixes to, or erects, inscribes or exhibits on, any place open to pubic view any advertisement without the written permission of the local authority having jurisdiction of such area, shall be punished with imprisonment of either description for a term which may extend to six months or with fine which may extend to one thousand rupees or with both. Any person who abets the above said offence shall also be punished with the same offence. If the person committing such offence is a company, then every person who, at the time the offence was committed, was in charge of and responsible to the Company, for the conduct of the business of the Company, as well as the Company shall be deemed to be guilty of the offence.

During the last few years, agitational methods are being used by students, laborers, anti social elements etc., to meet their various objectives and this occasionally results in looting and damage to public and private property. To control such mob as well as individual behavior, and to provide deterrent punishment for such offences, the Karnataka Prevention Of Destruction And Loss Of Property Act, 1981 was passed.

Section 3 of the act provides punishment for committing mischief and causing loss or damage   to any property. A person who commits such mischief is liable to be punished with imprisonment for a term not less than 6 months, but which may extend to five years and with fine, which may extend to two thousand rupees.

The act also provides for imposition of collective fines over inhabitants of an area, who are concerned in abetting or instigating such mischief to property, or who harbors such offenders, or who fail to render assistance to apprehend such offenders. The state government may apportion such fine amongst the inhabitants according to the respective means of the inhabitants of such area.