MAINTENANCE TO HUSBAND BY WIFE

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CM(M) 169/2009

 

Judgment Delivered on: 31.03.2011

RANI SETHI ….. Petitioner             Through : Mr. G.K. Sharma, Adv.

versus

SUNIL SETHI ….. Respondent      Through : Mr. B.P. Singh, Adv.

CORAM:

HON’BLE MR. JUSTICE G.S.SISTANI

  1. Whether the Reporters of local papers may be allowed to seethe judgment? Yes
  2. To be referred to Reporter or not? Yes
  3. Whether the judgment should be reported in the Digest? Yes

 

G.S.SISTANI, J. (ORAL)

 

  1. Present petition is directed against the order dated 24.2.2009 passed by learned Additional District Judge, Delhi, on an application filed by respondent (husband) under Section 24 of Hindu Marriage Act, seeking maintenance from the petitioner (wife). By the abovesaid order, trial court has directed the petitioner (wife) to pay maintenance to the respondent (husband) @ `20,000/-, per month, and `10,000/- as litigation expenses and also to provide Zen Car for the use of the respondent (husband).

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WHAT TO DO WHEN AN EMPLOYEE IS TRYING TO STEAL YOUR CLIENT?

In today’s competitive environment, also the startup environment, everybody wants to steal the client of other organizations because everybody needs business and those clients, So if your business is getting lots of clients then beware there can be some employees in your organization which are indulging stealing your client so that they can start-up. Well technologically having a robust firewall IT framework can prevent date theft, but what to do with an employee who has been caught red handed stealing your client data, what you can do to that employee, most of us will fire that employee immediately, but do not do that as legally errant employee may sue your organization for illegal removing so here are somethings you can do-:

  1. Professional misconduct clause in your service agreement- Just be sure to add professional misconduct clause in your agreement, which states you have a power to immediately fire an employee without any notice in case he is found of professional misconduct and stealing vital client information qualifies in this category.
  2. Let employee sign a severance agreement-if an employee is found stealing information red handed tell him to sign a severance agreement in which he will be agreeing to make full and final settlement of dues with your organization and the agreement bars him to approach and labor court.
  3. Non compete and non disclosure agreement- Although it is part of service agreement but if it is not part of service agreement a non compete agreement should be signed, so that the employee may not be able to disclose or compete your information to other people.
  4. Criminal breach of trust complaint-Under the Indian penal code a criminal breach of trust complaint can be lodged against an employee, i.e under IPC 406, if he has stolen the information and disclosed it to your competitor.This is also the provisions which which will help you to prevent your trade secrets.
  5. Protection under the copyright act-if the information stolen is protected under the copyright act, such as software and databases are covered under section 63 of the copyright act, and civil proceedings are also maintainable.

These are the some ways to mitigate the risk in relation to stolen data.

Advocate Nitish Banka

E-mail-Nitish@lexspeak.in

HOW TO REGISTER WILL IN DELHI

HOW TO REGISTER WILL IN DELHI

Registration of will is not compulsory under section 17 of the registration act, but it is always advisable to register the instrument of will as it makes nearly impossible to challenge the will in the near future. Now this a step by step guide to register will in Delhi.

In order initiate the process of registering a will in Delhi, one must have a well drafted will by a counsel or read this article.

Now once your will is ready you are ready to go to your nearest sub registrar now to find your nearest e-sub registrar click here.

Once you have figured out the address, you need to ensure that you have 2 copies of will, 2 photographs and id card of the witnesses. Affix the photographs on top right corner of both the copies.

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Feeling Harassed by Bank recovery agents-Follow this?

If you a loan defaulter or just missed few installments of the loan or your financial condition is poor that you are not able to pay the loan amount back to the bank. The bank employs various recovery agents to harass you as a measure to recover back the loan amount due upon you, these agencies are spread all over Delhi and even abuse you in front of your family members and relative, or they can even call you and your relatives at odd hours and start abusing, these are unlawful tactics adopted by the agencies of the bank.

What’s the Solution
Complaint to police station
A formal complaint against the bank and the agency can be lodged to the police station and if police is not taking any action or is not registering a FIR than one can resort to complaint to the Magistrate under 156(3), once FIR can be lodged your problem might get solved, in case of women if vulgar language are used against the women IPC 509 can be lodged but remember to have record of the conversation.

Injunction suit against the bank and agents-:
A civil suit of injunction with ad interim relief can be lodged against the bank and agency in civil court. so that officials of bank and of the agency does not visit your place for recovery.

Complaint to RBI

Recently RBI has also issued certain guidelines to curb this issue which can be accessed here. A formal complaint to RBI is also one solution a person can opt.

The Supreme court in observed in Manager icici Bank V. Prakash Kaur

 A man’s self respect, stature in society are all immaterial to the agent who is only primed at recovery. This is the modernized version of Shylock’s pound of flesh. No explanation is given regarding the interest charge and the bank takes cover under the guise of the holder of the card or loan having signed the agreement whose fine print is never read or explained to the owner. ? When a harassed man approaches the Court or the police station he is not armed with a recording phone and finds it difficult to give evidence of the abuse he has suffered. Here the bank gets away with everything. Young and Old members of the family threatened on streets, institutions and also at home at godforsaken hours by these agents who have the full support of their contractor bank. The stance taken by the bank in any suit alleging such incidents is that no such agent has been appointed by them or their agents do not misbehave in the manner aforesaid and if found guilty the agents have to bear the cross and the bank gets away scot free.

?Using of the abusive language for recovery is the norm of the day for most nationalized or multi national bank or non-nationalized bank. Though some are smart enough to record the abuse and proceed to establish the same through Court of Law, most of them are unfortunate not to have recourse to it. Such people form the majority and such litigations are pending in large volumes before the Civil and Consumer Courts. Again the banks escape liability since these agents are not salaried employees of the bank and hence not directly liable for anything. ? Taking it from the angle of the common man the inflow of software money and high salaries has resulted in uncontrolled expenditure. Rather than utility it is a fashion to carry a card for it makes a statement depending on the type of card one carries. ? To maintain ones image one pays the price of utilizing the card without realizing that even a single day’s delay in payment results in more than 100 to 200 rupees being charged as default and penalty charges, which if accumulates over a month, results in the charges exceeding the actual payment due.

Defamation suit

If recovery is based on wrong information an bank and recovery agent spoiled your CIBIL score based on wrong supply of information.

Trespassing complaint/House breaking

If the agents of the bank illegally entered into your house.

A complaint of extortion

if the agents forcefully recover the amount under threat.

How much may be the loan default, the bank should opt for legal ways like the use of SARFAESI act for the recovery of debt and resort to unlawful means by employing goondas and mawalis to recover the debt due.

 

Nitish Banka

Advocate Supreme court

9891549997

 

No Justice No Peace

 No Justice No Peace

The Maxim “Justice should not only be done, but seem to have been done” finds its place in the Constitution of India as enshrined in Article 21 of the Constitution wherein its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.

 

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Now let us find what the stages are in a criminal trail and the importance of each stage in reaching the Justice.

First stage in any case is the registration of the complaint i.e. FIR in case of cognizable offences, but sometimes even if the complaint discloses prima facie a cognizable offence the police still fails to register an FIR for the reasons best known to them despite the specific instructions of the Hon’ble Supreme Court in this regard in “Lalita Kumari vs Govt.Of U.P.& Ors” dated  on 12 November, 2013.

Second stage after the registration of the FIR is the investigation which the sole prerogative of the Police and the police can wither file a charge sheet or closure depending upon the information given, evidence collected, statements recorded and so forth (In case the closure report is filed the complainant can file the protest petition against that closure and get the case registered after recording their statements). But as a matter of fact every day the fresh cases seeking transfer of case to some independent agency for “fair, honest and complete investigation” is being filed because of the investigation by the state police lacks credibility and is baised.

Hon’ble Supreme Court in “K.V. Rajendran v. Superintendent of Police, CBCID South Zone, Chennai and others” has held that transfer of investigation to some independent investigating agency like CBI only in rare and exceptional cases and the Court could exercise its constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating only when the high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instill confidence in the investigation or where the investigation is prima facie found to be tainted/biased.”

Third stage after the filing of the charge sheet is the trail where in the courts frame the charge (the accused can get discharged as well), lead evidences, record the statements of the accused, record the final arguments and pass the judgment. Despite the right to speedy trial the courts fail to conclude the trail in a timely manner the courts fails to do so because of the factors like absence of adequate number of judges in trial courts and no timely appoint of public prosecutors proportionate to the cases pending. Serving of summons is done by the police and they could not effectively do it. Frequent and long adjournments, leave of absence by presiding officers and boycott of courts by advocates are the other reasons. However the parties facing delay in trail can approach the Hon’ble Courts seeking dead line to complete the trail as held by Hon’ble Supreme Court in “Katar Singh v. State of Punjab” that right to speedy trial is an essential part of fundamental right to life and liberty.

Therefore the precautions which can be taken for a fair investigation, trail could be as follows:-

  1. If the police fails to register an FIR, file the complaint to the immediate senior officials as provided in 154(3), thereafter file an RTI seeking reply for the action taken on that particular complaint. If nothing results fruitful file a complaint U/S 156(3), 200 Cr.P.C before the magistrate.
  2. If apprehending unfair and biased investigation file a petition before the Hon’ble courts under Article 226 or Article 32 for fair investigation.
  3. If there is delay in the trail approach the Hon’ble Court seeking dead line with the justified reasons to put a dead line for the completion of the trail (Matrimonial as well as Criminal trials)

 

Warm Regards

Kapil Chandna Advocate

9899011450,9911218741

Licensing-A way to grow your Business

Licensing-A way to grow your Business

Consider licensing as a way to grow your business, licensing means to permit or simply means to use. If you are a small business with innovative products you may use licensing as a mode to grow your business. Licensing involves two partners one is an innovative partner and other is a heavy weight organization. Many small businesses die because they are not able to attain those levels of sale or generate revenue, even if they have great products, they do not have those mass production capacity to produce those great products to become profitable. Because R&D costs involved in generating or creating great products are huge yet many products fail to create an impact in the market. The solution is licensing. Licensing is very popular in software sector and very popular example is Microsoft licensing software’s to IBM. Now if a small company really wants to become big the Microsoft IBM licensing is a perfect example. Here are some of the ways to assess whether your business is fit for licensing or not-:

Innovative and Unique products but no capacity to produce at Large scale.

You have an innovative product and is an improvement of earlier product that could lead an impact to the existing industry if it is produced at a mass scale, the solution is simple it is to license it to the big corporation and take a royalty out of the sales, when it is produced and sold at large scale. But remember the legalities involved in such cases, make sure your product complies with all the Intellectual property laws this means you must have a proper copyright or patent for the product before you may license it for mass product otherwise you will lose your proprietorship.

Ancillary products to main product

If your product is an ancillary product to the main product and you can’t match the demand in case it’s a B2B business consider the proposition of licensing it to the main product manufacturer, because they have such facility to mass produce and fulfill demand. Like in cases of automobile industry some technology like computer software are licensed. Or some equipment like safety equipment’s like air bags sensors are often licensed by electronic companies and they earn royalty on it.

 

Products that can only earn profit if mass produced.

It is for those manufacturing factories which have huge distribution channels and the price margin of the product is small that unless they are mass produced and distributed hardly the profit the product could make for those products huge amount of capital is needed to get some product, licensing with already established business is easier to mass produce and gain profits. It is for those products which are to be sold in millions to make millions and that can’t run of pennies as you would be getting pennies.

Licensing is a way to scale up the business really fast without raising any capital, but only precondition is that the product has a huge demand potential and should sell like hot cakes and the product if sold in masses could create a huge impact in the industry. These types of products are best suited for licensing.

 

Nitish Banka

Legal Consultant

www.lexspeak.in

nitish@lexspeak.in

Essentials of a good contract-A Checklist

A contract is an essential part of any business dealings , thus giving a formal shape to any deal or transaction in the business world. Without contract nothing stands enforceable as per the law which means the diminishing trust factors among the business partners and other stakeholder and thereby making the business environment unstable.

A badly drafted contract is as good as no contract, here are some of the checklist for every legal team in world, which has to be strictly adhered to in order to draft a well drafted contract.

1.Preamble-: A carefully drafted preamble is a soul of a contract, basically a preamble describes the purpose of the contract and why it is there.

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Should he send back to custody again?

Should he send back to custody again?

More often than not this question comes to the mind of every person that once a person a granted bail, he cannot be send back to the prison and he can use his freedom the way he wishes. But now a day’s more number of cases for cancellation of bail are coming forward because the accused while taking bail swears to abide by the express terms and conditions if any imposed or even otherwise he has to abide by the implied conditions of the Criminal Jurisprudence but since the accused forget the conditions be it implied or express, which makes the other party to move an application for cancellation of the bail.

But now the question comes that cancellation of bail is as easy as the granting of bail, the answer to the question is big NO as held by Hon’ble Supreme Courts in number of cases and reason for the same that once a bail is granted it should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer to conductive to a fair trail to allow the accused to retain his freedom by enjoying the concession of bail during trail.

Now we see why the accused is required in custody because he should be presumed to be innocent unless proved guilty and that the law works on the principle of bail not jail, but then the question comes that even after applying these principles the court comes to know that the accused is taking law into his hands and interfering the fail trail by tampering with the witness or indulges into some criminal activity, the court has a reason to cancel the bail.

Following are the grounds as laid down by Hon’ble Supreme Court in Abdul Basit Vs. Abdul Kadir Chaudhary, 2014 (4) JCC 2810 held that U/S 439 (2) empowers the High Court to direct any person who has been released on bail under chapter XXXIII of the Code to be arrested and committed to custody, i.e. the power to cancel the bail granted to an accused person:-

  1. The accused misuses his liberty by indulging in similar criminal activity.
  2. The accused interferes with the course of investigation.
  3. The accused attempts to tamper with evidence or witnesses.

 

 

 

  1. The accused threatens witnesses or indulges in similar activities which would hamper smooth investigation.
  2. The accused is likely to fell to another country, or otherwise avoid the due process of law.
  3. The accused attempts to make himself scarce by going underground or becoming unavailable to the investigating agency.
  4. The accused attempts to place himself beyond the reach of his surety.

 

The grounds mentioned are not exhaustive and merely illustrative. Therefore the accused are not to misuse the express as well as implied conditions imposed by the court and should not interfere in the due process of the court.

 

Kapil Chandna Advocate

Supreme Court of India

9899011450,9911218741