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Trick to demolish a Case

Interrogatories-The domain left unknown

After the filing of plaint and WS, the procedure of settlement of issues takes place. The material facts which are admitted by one party and denied by another party forms the material issues. Now on these material issues the evidence needs to be given by the parties. Now before proceeding to the evidence to be given by the parties, each party has a right to know other’s party case, so that no party is taken out by surprise. Now here is the place where order-11-12 of the CPC comes into play. Unfortunately this machinery which is the discovery and inspection of facts and documents are unknown at trial court level, but it’s a very useful tool that every practitioner should know and utilize it. As it is a very powerful tool which can either break the other party case or may strengthen one’s own case.

The tool is called interrogatories which is used to facilitate discovery and inspection of facts and documents which forms material to the issues and which are to be disclosed in order to determine the material issues.

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How to Bargain the amount of Interim Maintenance/Maintenance.

Interim maintenance and maintenance under s.24 and s. 25 of HMA or under s.125 CrPC or under DV act. These provisions bind a person who has an obligation to support and maintain his family. Initially when these cases are filed on say a husband they become adamant they deny to recognize their duty which can go adverse against the husband himself. Interim maintenance is the monthly amount set by the court till pending litigation. So the real benefit for the husband is to shorten the time of litigation so that he would end up paying less here are some of the ways to pay a minimum or no amount of interim maintenance / maintenance.

  • Capacity to Pay

The amount of maintenance is directly proportional to the income of the husband. Lesser the income lesser is the sanctioned amount. It is important that husband should take initiative to show the salary slip instead of the court asking for the same as the procedure by courts are slow so better to follow due diligence approach. This would also help in bringing down the amount and shortening the litigation as it would again show the honest approach of the husband.

  • Desertion by Wife

It is a rule that if wife has deserted the husband the husband is not liable to pay any form of maintenance. It is imported to show that you have done various efforts to call back the wife by mail, SMS, chats are all admissible proof. This again would lead to shortening of litigation and complete dismissal of maintenance case. But again the wife has 498a and cruelty but she need to prove it.

  • Mediation

Mediation is the best ground for negotiation. Try to negotiate the amount and mutually agree. It would again shorten the litigation and save lots of money on lawyers.

  • Working wife

Try to prove that wife is competent to earn, there is a rule that maintenance amount is for survival not for luxury and if the wife is working than no maintenance shall be awarded. But if wife is capable to earn then maintenance amount can be reduced.

Follow these tips remember the penny ur saving in maintenance cases can become heavy if litigation continues for long periods. In maintenance cases non-adamant, honest, diligent approach will win you.

The One Sided Philosophy of Female Criminality-I

Women love flowers, women love chocolates, women love all that is pink. Women are kind, caring and gentle. Women are nice and affectionate. This is the hypothesis of my research. The research question is; what brings women to criminality? Here are some very interesting philosophies about the female criminality which appealed the woman in me.

The theories on female criminality are divided into two broad categories: classical and contemporary. The classical philosophy deals with the biological and the psychological factors and the contemporary theory limits its focus to the sociological factors. According to Lombroso, women are jealous and revengeful. These set the criminality in a woman. He also stated that the female characteristics contributed to make women criminals more ‘terrible’ than males. Thomas, the other philosopher believed that women had varieties of love, and also, variety of desires of love. This desire is more intense than that in males and when they fail to feel to sense the same intense in response; this switches on their criminality. He basically pointed towards the ‘crimes’ of sexual desire.

Pollock marked about the under reporting of female criminals. He stressed on the fact that the crimes committed by women are not much detected as compared to men and along with this; the police and the court are lenient towards them. Only the few criminals who are actually the worst of all the offenders are subjected to harsh handlings. Another group of philosophers believed that women are mere instigators in crime. They seldom form the class of perpetrators. Alder held that criminality in females was a result of equality between the two genders. He also stated that criminality in females is a result of women liberation movements. The more they desire to compete with men, the more criminal intent they develop.

When I went through these one sided philosophies, I arrived at a conclusion that I am an inborn criminal. Jealousy and retaliation are the gems of my personality. Even, I crave for love and so do, every woman. In this societal setup every female battles to seek equality with her male counterpart. I am no different. The one sided research work of this philosophy has hence held me guilty.

ACT OF GOD!

The interview of Ashok Singhal by a news channel dragged all my attentions to a very important liability. With all the charm this liability is called “Act of God.” Ashok Singhal in his interview declared the Godhra riot to be an “Act of God.” Well, now the query which pops up is whether God will be punished for this offence or not.

To answer this, first of all we should know what Act of God is. Act of God is an act of God. We associate all the natural beings with god, i.e., God is nature and nature is god. In simple words, whatever are the acts of nature is the act of God. Since, human beings are also a part of nature, it may appear that human activities are the acts of the nature, i.e., by further deduction, the act of God! But, the activities under the human control have been kept outside the definition of Act of God. Hence, miracles and disasters are act of God. But, the legal definition of this phenomenon includes mainly and, only the negatives of the term. Hence, mainly and only the disasters accomplish the criteria of act of god.

Act of God thus includes natural disasters like floods, earthquake, volcano eruption, tsunami, etc. The requisites for Act of God are:
(i) Acts without any kind of Human intervention
(ii) Acts beyond the human control
(iii) Acts which are unpredictable and inevitable

Now, modern technologies have grown so much that every other disaster can be predicted and can be controlled too; at least to a certain extent. And, also the natural calamities which we face in our day to day lives is a result of human actions. This means indirectly, the act of God is the act of Human Beings and also; God resides in every human being; may be, then the act of every human being is an Act of God. Confused!

Another deduction is that since, God punishes every human being for their wrongful acts (courtesy: religious texts); therefore the acts of God should also be punished on the grounds of equity. But sadly, acts of God are not punishable under law (FOR THE Fans of OMG!) Justice denied!

Analyzing Negligence

Negligence: Inviting disasters Negligence refers to doing of an act which a reasonable person would not do and not doing an act which a reasonable person would do. Negligence is both, civil and criminal. In general, Criminal negligence is negligence that is aggravated, culpable .On the other hand, civil negligence often the breach of duty of care which injury or, loss. For civil cases, the ingredients required are the duty of care, breach of theta duty of care, causation, i.e., the underlying link between the defendant’s act and the injury or loss and finally, the injury caused. In criminal law, according to Section 304 A of the IPC,

i.e., “Causing death by negligence.–Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” Negligence has resulted in several cases of road and other accidents. In a statemenJustice Sathasivam mentioned that in India 120,000 people die every year. Along with this, 127,000 people sustain injuries every  year in road accidents. Also, as per the statistics, there is one death on the Indian roads every six minutes and this is expected to quicken to one death every three minutes. This has also become a gateway for severindividuals to escape away from the crimesthey have committed. Instances being the involvement of some big names in some well-known cases. This is just one aspect. Negligence in the other aspect which touches our daily life is in the form of consumerism. This phenomenon usually occurs from both the sides, i.e., the buyer and the consumer. The act ranges from buying of articles which can no longer be brought in use to paying an illegitimate amount for a good which is not worth it. The sections of Consumer Protection Act are also taken under the purview of Section 304A of IPC for the issues of damages and compensation. The maxim here that lies is, sic utere tuo ut alienum non loedas, i.e., a person is held liable for the consequences of his negligence. The next and the most dangerous of all is the negligence which results in natural calamities, the recent one being the Uttarakhand case. Ignoring the needs of nature has always resulted in nature showing its fearful colours. The top ten of all amongst the deadliest natural disasters which have occurred in India are “the great famine of 1876-1878”, “the third plague pandemic”, “Bengal famine of 1770”, “Bengal famine of 1943”, “Deccan famine of 1632-33”, “1839 Coringa cyclone”, “1737 Calcutta cyclone”, “2001 Gujarat earthquake”, 2004 Indian Ocean Tsunami and the “1993 Latur earthquake”. Evidently,

environment is an issue which has always been in the locked box of negligence both in the cases of the ruled and the ruling mass. Sadly, environment has never been an agenda in any policy though it affects our lives the most. Plants and animals, even we form a part of the same. It, therefore, is our responsibility to preserve the same, so that along with this our needs also get fulfilled. A disaster like that of Uttarakhand’s has to be swerved to evade the loss of human resources.

By-: Tejaswini Ranjan

How to make a will?

What is a will?

A will is the testament of a person about how his property both movable and immovable is to be managed; It may also include those persons who may become beneficiaries in his property after his death. A will can only be made with respect to self-acquired property of the testator or pertaining to disposal of his vested share in the ancestral property, A will can only be made by any person who is above the age of 18. In the absence of will the property of the testator could be disposed off according to intestate rules.

 

Essentials for valid will?

1. Declaration In The Beginning: In the first paragraph, person who is making a Will, has to declare that he is making this Will in his full senses and free from any kind of pressure and undue influence and he has to clearly mention his full name, address, age, etc at the time of writing the Will so that it confirms that a person really wishes to write a Will.

2. Details of Property and Documents: The next step is to provide list of items and their current values, like house, land, bank fixed deposits, postal investments, mutual funds, share certificates owned by testator. He must also state the place where he has kept all the documents if the will documents are under safe custody of the bank then testator has to write details about the releasing of the Will from the bank. Here it is the most important duty of the testator to communicate the above matter to the executor of the Will or any other family members, which will make the Will valid after testator death.

3. Details of ownership By The Testator: A testator while making a original Will should specifically mention that who should own his entire property or assets so that it will not affect the interest of the successors after his death. If testator wishes the name of the minor as beneficiary then a custodian of the property should be appointed to manage the property.

4. Attestation of the ‘Will’ : At the end, once the testator complete writing his Will, he must sign the will very carefully in presence of at least two independent witnesses, who have to sign after his signature, certifying that the testator has signed the Will in their presence. The date and place also must be indicated clearly at the bottom of the Will. It is not necessary that a person should sign all the pages of the Will instrument but he must sign to avoid any legal disturbances.

5. Execution of A ‘Will’: On the death of the testator, an executor of the Will or an heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they have any objections to the Will. If there are no objections, the court will grant probate .A probate is a copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the genuineness of a Will. In case any objections are raised by any of the heirs, a citation has to be served, calling upon them to consent. This has to be displayed prominently in the court. Thereafter, if no objection is received, the probate will be granted and It is only after that Will comes into effect.

Registration of ‘Wills’: According to the Section: 18 of the ‘Registration Act, 1908’ the registration of a Will is not compulsory. Once a Will is registered, It is a strong legal evidence that the proper parties had appeared before the registering officers and the latter had attested the same after. The process of registration begins when a Will instrument is deposited to the registrar or sub-registrar of jurisdictional area by the testator himself or his authorised agent. Once the scrutiny of Will instrument is done by the registrar and registrar is satisfied with all the documents then registrar will make the entry in the Register-Book by writing year, month, day and hour of such presentation of the document and will issue a certified copy to the testator. In case if registrar refuses to order Will to be registered then testator himself or his authorised agent can institute a civil suit in a court of law and court will pass decree of registration of Will if court is satisfied with the evidence produced by the plaintiff. A suit can only be filed within 30 days after the refusal of registration by the registrar. If the testator willing to withdraw the Will after the process of registration then a sufficient reason has to be given to registrar, if satisfied he will order for the registration of Will.

 

 Probate: It is the copy of the will which is given to the executor together with a certificate granted under the seal of the court and signed, by one of the registrars, certifying that the will has been proved. The application for probate shall be made by petition along with copy of last Will and testament of the deceased to a court of competent jurisdiction. The copy of the will and grant of administration of the testator’s estate together, form the probate. It is conclusive evidence of the validity and due execution of the will and of the testamentary capacity of the testator. A probate is obtained to authenticate the validity of the will and it is the only proper evidence of the executor’s appointment. The grant of probate to the executor does not confer upon him any title to the property which the testator himself had no right to dispose off which did belong to the testator and over which he had a disposing power with a grant of administration to the estate of the testator. Probate proceedings cannot be referred to Arbitration. The probate court (whether it is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of the deceased.

 ‘Wills’ By Muslims Under ‘Mohammedan Law’: A Will under Mohammedan Law is called as Wasiyat, which means a moral exhortation or a declaration in compliance with moral duty of every Muslim to make arrangements for the distribution of his estate or property. The Mohammedan Law restricts a Muslim person to bequeath his whole property in a will and allows him to bequeath 1/3rd of his estate by writing will, which will take effect after his death. A will may be in the form of oral or written if the will is in writing need not be signed if signed need not be attested. Acc to Shia Law if served bequests are made through a will, priority should be given to determination by the order in which they are mentioned a bequest by way of will. A Will Can be made by a person who is of sound mind, major and possessing a absolute title, in favour of a person who is capable of holding property except unborn persons and heirs. The revocation of will is possible only if the subsequent Will is made by the testator. A Muslim person who is allowed to bequeath 1/3rd of his estate, he can exceed its limit on testamentary power of 1/3rd to 1/4th in case where heirs gives consent or only heir is husband or wife.

Statutes Relating To ‘Wills’: There are many laws which are dealing with the concept of ‘Wills’ as follows:

• Indian Succession Act, 1925

• Hindu Law (Hindus Personal Law)

• Muslim Law (Muslims Personal Law)

• Indian Registration Act, 1908

 

 

Why Emergence of social media has made IT act obsolete?

The IT act came into existence to protect the users from the crime related to electronic space, we know that India is a IT hub and a largest democratic country, That’s why we need IT laws .But Laws don’t keep pace with technology.
And at one point of time the technology surpasses and comes above the law, when this happens then the need to amend the law arises. This is what happened with the 66A IT act.
Let us first look at it what is 66A:
*[66A. Punishment for sending offensive messages through communication service, etc..-
Any person who sends, by means of a computer resource or a communication device,-
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years and with fine.
Explanation: For the purposes of this section, terms “Electronic mail” and “Electronic Mail Message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.
The analysis of the current IT act gives an Idea that the 66A IT act is vague it talks about the information but how it gets transmitted to other person this is not mentioned as in the year 2000 there was only one way to transmit information i.e. through E-mails or may through few websites but the concept of blogging or “free speech” was not there at that time. Because information through speech is different than other form of information. For example-: we have Article 14 for freedom of speech but for intimidating someone with information passed through messages does not come under freedom of speech.
The 66A IT act certainly needs to be amended as IT act was passed in year 2000 at that time there was no concept of social media, the 66A act was intended to cover only email messages ,the messages of email cannot be compared with that of post on social media. The email messages are personal in nature and is generally intended to single person, But in social media you have an audience and the case of posting on the wall certainly comes under freedom of speech,  so the posting on the facebook wall must be equated with article 14, and same limitation must be applied to it rather than treating it as a message. So with current technological advancement there certainly need to amend the IT laws.
By: Nitish Banka

CONCEPT OF ESTOPPEL

1.0 INTRODUCTION

 All of us know what estoppel is. I first heard about it when I was reading section 28 of the Partnership Act, 1932 which provides that a person holding out to an outsider providing credit to the firm is estopped from pleading that he is not a partner when circumstances indicated that he so represented himself. There are varieties of other estoppels like those found in Contact law, law of sale of goods and law of evidences. This article seeks to discuss estoppel in contract law.
1.1 ESTOPPEL
The word “Estoppel” is derived from the French word “ESTOUPE” from which the word estopped in English language emerged. A man’s own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth” (See Lord coke in Co. Litt 352(a) as cited by the Hon’ Supreme Court in B.L. Sreedhar v/s K.M. Munireddy(2003) 2 SCC 355 at 365. Estoppel, simply put, means this: a man who made a promise or representation etc to another person who based on that promise or representation altered his position or situation, then the promisor shall be estopped in law to go back on his promise or representation.
It is a rule of equity invented by the courts to do justice. It is also a rule of Evidence. Section 115 of the Indian evidence act, 1872 contains express provisions recognizing the doctrine of Estoppel.Section 43 of the Transfer of Property Act also contains provisions recognising the doctrine of estoppel.
2.0 CONTRACT LAW
Let us see the application of the doctrine in the arena of contract law. It is settled that a contract without consideration is void subject to the exceptions for which the law makes specific provisions. But we may come across situations where there is no contract in law yet it requires to be enforced in the interests of equity, justice and good conscience. But the stringent rule of consideration would stare at us. Is there any remedy or solution when the statute provides none?
 
2.1 HISTORY OF THE DOCTRINE
When we strive to look into the history of application of this doctrine of “Promissory Estoppel” in the field of contract law, we may begin with JORDEN v MONEY (1854) 5 H.L.C 185, a decision of the House of Lords in England. In that case Mr. Money borrowed 1200 pounds from Marvell who died. Mrs.Jorden took the bond as successor. Money was about to marry and this debt caused concern for him. But Mrs. Jordan came to his rescue and promised that she will never enforce the bond. So he married. But Mrs.Jorden sought to enforce the bond after 5 years. Mr.Money defended the action by pleading that she be estopped. The House of Lords held that he is liable as estoppel work only in respect of a statement of existing fact was not to representations about future. But lack of consideration for the promise of Mrs.Jorden stood in the way. Thus the Lords refused to give relief to Money.
2.2 METROPOLITAIN RAILWAY CO CASE
The second case in line in the history of the doctrine is Hughes v/s Metropolitan Railway co (1877) 2 AC 439. It is definitely worthwhile to look into the famous passage from the speech of Lord
Cairns which is set out below.
“It is the first principle upon which all Courts of Equity proceed, that if parties who have entered into definite and distinct terms involving certain legal results – certain penalties or legal forfeiture – afterwards by their own act or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties.”
2.3 THE DOCTRINE GETS WIDENED
The third case is Birmingham and District Land Co v London and NW Railway Co (1888) 40 Ch.D 268. it was stated by Bowen LJ that Estoppel is wider than cases of forfeiture and stated as follows.
“It seems to me to account to this, that if persons who have contractual rights against others induce by their conduct those against whom they have such rights to believe that such rights will either not be enforced or will be kept in abeyance or suspense for some particular time, those persons will not be allowed by a court of Equity to enforce the rights until such time has elapsed…”
So by 1888 the doctrine assumed wider dimensions than before.
2.4 HIGH TREES….HIGH TREES…….HIGH TREES
The fourth but the most important land mark case is Central London Properties Trust Ltd. v/s High trees House Ltd (1941) 1 KB 130. The case is popularly known as High tree’s case. This judgment was delivered by none other than the great Lord Denning who shall ever be regarded as the one of the greatest English judges of the last century. He was only a junior judge of the Kings Bench of the High Court.  I shall set out below the facts of the case briefly as stated by the great judge himself in his book “the discipline of Law”.
2.5 FACTS OF THE HIGH TREES CASE
 The facts were quite simple. During the war many people left London owing to the bombing. Flats were empty. In one block, where the flats were let on 99 year leases at 2500 a year, the landlord had agreed to reduce it by half and to accept 1250 a year. Then the bombing was over, and the tenants came back, the landlord sought to recover the full 2500 a year.
2.6 LORD DENNING TURNS HERO
Lord Denning held that Landlord cannot recover the original rent of 2500 a year when the flats were empty. The learned judge in his judgement stated as follows which has become classic.
“If I were to consider this matter without regard to recent developments in the law, there is no doubt that had the plaintiffs claimed it, they would have been entitled to recover ground rent at the rate of 2500 a year from the beginning of the term, since the lease under which it was payable was a lease under seal which, according to the old common law, could not be varied by an agreement by parol (whether in writing or not), but only by deed. Equity, however, stepped in, and said that if there has been a variation of a deed by a simple contract (which in the case of a lease required to be in writing would have to be evidenced in writing), the courts may give effect to it…. That equitable doctrine, however, could hardly apply in the present case because the variation here might be said to have been made without consideration. With regard to estoppel, the representation made in relation to reducing the rent, was not a representation of an existing fact. It was a representation, in effect, as to the future, namely, that –payment of the rent would not be enforced at the full rate but only at the reduced rate. Such a representation would not give rise to an estoppel, because, as was said in Jorden v Money, a representation as to the future must be embodied as a contract or be nothing”
2.7 LORD DENNING LEAPS OVER THE FENCES   
Thus time has come to do something to do justice and to leap over the fences created by law and the binding decision of the House of Lords in Jorden v Money (1854) 5 HLCas185.  Lord Denning observed as follows:
“In my opinion, the time has now come for the validity of such a promise to be recognized. The logical consequence, no doubt, is that a promise to accept a smaller sum in discharge of a larger sum, if acted upon, is binding notwithstanding the absence of consideration: and if the fusion of law and equity leads to this result, so much the better. That aspect was not considered in Foakes v Beer. At this time of day however, when law and equity have been joined together for over seventy years, principles must be reconsidered in the light of their combined effect. It is to be noticed that in the sixth Interim report of the Law Revision Committee, paras 35, 40, it is recommended that such a promise as that to which I have referred, should be enforceable in law even though no consideration for it has been given by the promise. It seems to me that, to the extent I have mentioned, that result has now been achieved by the decisions of the courts”.
Thus justice has been done even in the absence of consideration for the variation in the terms of the contract.
3.0 CANNOT BE OVER THROWN BY A SIDE WIND
Thus now the doctrine is firmly established and “cannot be over thrown by a side wind”. Thus the doctrine came to be accepted as legally firm and conceptually sound. There was no going back. There was no appeal to the Court of Appeal or to the Lords. Thanks to the parties. On a close look at High trees case it can be seen that the court intended to assist the parties for defending an action and has not recognised the doctrine of promissory estoppel as a cause of action.
3.1 NOT A SWORD
Soon came the decision of the Court of Appeal in Combe v Combe(1951) 2 KB 215 decided by Lord Denning himself now a judge of the Court of Appeal (CA). It was in 1950.Mr.Combe promised to give Mrs.Combe an annual maintenance amount before divorce. But after divorce Mr.Combe refused to pay. Mrs.Combe thought that there is a breach of promise. Mr.Combe promised, she relied on that promise and in fact acted upon the promise (by not seeking assistance of courts for getting maintenance order). So she thought she can rely on HIGH TREES and get relief. The lower court allowed her claim based on High trees. But on appeal to Court of Appeal (CA) the matter came up before Lord Denning and the very person who is regarded as the defender of the doctrine refused to apply the same.
He stated the estoppel could only be used as a “shield” and not a “sword”. In the High Trees case, there was an underlying cause of action outside the promise. Here, promissory estoppel created the cause of action where there was none. In this case, the court could not find any consideration for the promise to pay maintenance. He further stated that the High Trees principle should not be stretched so far as to abolish the doctrine of consideration, He went on to add “”The doctrine of consideration is too firmly fixed to be overthrown by a side-wind….it still remains a cardinal necessity of the formation of a contract”.
4,0  AS CAUSE OF ACTION
Presently the subject matter of discussion among legal experts is regarding the limitation placed by Combe v Combe. They plead for widening the scope of its application. The doctrine should be capable of being used as a cause of action  in addition to its application as a shield of defence. It is to be noted that United states abandoned this restriction long back in Hooffman v Red owl stores 133 NW 2d 267 (1965). Australia also in a recent case in Walton’s stores (Interstate) v Maher (1988) 164 CLR 387 widened or stretched it to give relief as a cause of action. It may also be noted that the House of Lords (now Supreme Court) is yet to discuss the doctrine of promissory estoppel and its limitations.
5.0 PROPRIETORY ESTOPPEL
The courts have invented a new species of estoppel known as “Proprietory Estoppel” which is related to promises on properties. The Hon High Court of Kerala in a very recent decision in Jammeela Beevi V Basheer and others reported in AIR 2012 KER107 held that the seller shall not be allowed to go back on the representation when the purchaser acted upon it in full faith of the representation so made. The Hon Court relied on the judgement of the Hon Supreme court in Jumma Masjid Mereara v Kodimaniandra Devian and others reported in AIR 1962 SC 847.
6.0 CONCLUSION
To sum up, let us try to understand the main ingredients necessary for application of the doctrine in the field of contract law.There must be a promise by one person to another which can be enforced in a court of law. The promisor makes a representation to the promisee and the promisee based on that representation acts or alters his position fully relying on the representation.. Then subsequently the promisor shall not be allowed to go back on his promise and on an action by the promisor the promise can invoke the doctrine of promissory estoppel as a defence. He can even use it positively as a cause of action in view of the developments in US and Australia etc after the land mark decision in High Tree’s case. This article is mainly confined to English decisions and the application of the doctrine in the field of English law.

THE CRITICAL ANALYSIS OF NOVARTIS V CIPLA CASE VERDICT BY SUPREME COURT.

The Critical Analysis of Novartis V Cipla Case Verdict by Supreme Court.
In a landmark judgment that has the potential to change the direction of India’s pharmaceutical business, The Supreme Court denied that the drug Glivec  manufactured by the pharma giant Novartis is qualified for getting patent in India.
A Brief about the Facts in Issue
Novartis a Swiss based pharmaceutical company filed a patent application in the year 1997 to grant patent to its drug named Glivec which was a critical drug used for the treatment of leukaemia on the ground that it invented the beta crystalline salt form (imatinib mesylate) of the free base, imatinib.
However at that time India was not in a position to grant patent to pharmaceutical products and agrochemical products, In the year 2005 in compliance with the TRIPS agreement India thereon started to grant patents in pharmaceutical drugs. Parliament introduced a significant and important provision to prevent ever greening and granting of frivolous patents— section 3(d).
Subsequently the matter of Novartis was taken up by the patent controller, CPAA and other generic companies filed pre-grant oppositions against Novartis patent application for imatinib mesylate, claiming, among other things, that Novartis alleged “invention” lacked novelty, was obvious to a person skilled in the art, and that it was merely a “new form” of a “known substance” that did not enhance the substance’s efficacy, and was thus not patentable under section 3(d).
Swiss firm Novartis decides not to invest on R&D in India after SC verdict
Novartis was already granted Patent for the salt imatinib in the year 1993 in United States itself and the present application was based on one of the specific compound of the already invented salt.
The Application was rejected by the patent controller as the invention failed to comply with condition laid down by section 3(d) of the patent act.
This meant that the generic manufacturers were now free to manufacture the generic version of the drug.
But Novartis challenged the decision of patent controller in Madras High court in the year 2006 by filing number of writ petitions. Challenging to the constitutional validity of section 3(d) was that the use of the term “efficacy” in section 3(d) is vague and ambiguous, and therefore violates the equality provision (Article 14) of the Indian Constitution.
While dismissing Novartis’ writ petitions, the Madras High Court held: “We have borne in mind the object which the Amending Act wanted to achieve namely, to prevent ever greening; to provide easy access to the citizens of this country to life saving drugs and to discharge their Constitutional obligation of providing good health care to it’s citizens”.
Also held that the term “efficacy” was known in the pharmaceutical field to mean “therapeutic efficacy”. Therefore rejected the contention that it was vague.
After this the next phase of Litigation started in IPAB an appellate body of patent controller.
However IPAB overturned the Patent Controller’s findings on novelty and inventive step and held that the beta-crystalline form of imatinib mesylate was new and involved an inventive step.
But refused to grant patent as the Novartis failed to establish beta-crystalline form of imatinib mesylate exhibited significantly enhanced therapeutic efficacy over imatinib mesylate, the known substance .In contravention to section 3(d) of the act.
Challenging the IPAB’s order, Novartis approached the Supreme Court directly by filing a special leave petition challenging the IPAB’s interpretation and application of section 3(d) to its patent application. Subsequently, CPAA and Natco filed cross-petitions challenging the IPAB’s findings on other issues including novelty and inventive step.
Supreme Court Observations
The main question before the Supreme Court was that
1. Whether the invention qualifies the section 3(d) of the patent act?
2. Interpretation of section 3(d) of patent act?
3. Whether the invention qualifies for the test of novelty and inventive for the alleged product?
The main contention of Novartis was that IPAB admitted that the substance is an invention in its impugned order and then applied section 3d of the act, It was contended that if it is admitted that the product is an invention then section 3d would not be applicable as section 3d is applicable to incremental inventions or discovery and not on new invention.
It was also contended that ‘efficacy‘ test is only applied on known substance but not in the case of beta-crystalline form of imatinib mesylate which is a new substance.
The approach of Supreme Court was simple in this case-:
1. Court observed that the product was a new form of substance not an entire new substance.  It has always existed in the original amorphous form. The product thus qualifies for the test laid by section 3d of the patent act.
2. This section says that just discovering a new form of a substance is not enough to grant a patent, if it does not enhance its “known efficacy”.
3. On interpretation of section 3d of the act, Novartis tried to argue that the physico-chemical properties of the polymorph form of the imatinib molecule, i.e. better flow properties, better thermodynamic stability and lower hygroscopicity, resulted in improved efficacy. The Supreme Court firmly rejected this contention holding that in the case of medicines, efficacy means “therapeutic efficacy” and these properties while they may be beneficial to some patients do not meet this standard. The Supreme Court also held that patent applicants must prove the increase in therapeutic efficacy based on research data in vivo in animals.
4. Simply if the invention does not qualify the test of Therapeutic efficacy the invention can’t be granted patent, Thereby the true intention of the section 3d of patent act is fulfilled by stopping the concept of ever greening in critical sectors, moreover the supreme court held the strict view that patent in the field of medicine specially in the cases of life saving drug must be granted with
full caution so that larger interest of the masses are not affected to an extent that they lose right to live.
Conclusion
The SC judgement is a big relief for those people who can’t afford the lifesaving drugs manufactured by profit guzzling big pharma giants, there is a simple sense of humanity which needs to be preserved by the human race only. I say what is the purpose of an invention  when it is not affordable to the masses and cannot do good for mankind. Here we are talking about a drug which is a life saving drug priced way above the per capita income of the country. The Company in the name of patent prohibits those generic firms who are selling the generic version at an affordable rate, These Pharma big giants are corporates and claimed to have already made billion dollars and are becoming selfish thereby prohibiting people to buy the cheaper version and leaving only option to die because of the fact they are poor as if these Big pharma giants have a patent rights over their lives. I agree with the fact that patent is necessary to preserve one’s invention but that invention must be available to all at a rate reasonable to the masses then only the purpose of the invention would be fulfilled.
On the other hand the companies like Novartis, are doing just tweaking a single molecule call that whole thing as an invention and thus trying to obtain the monopoly over the lives of millions of masses.
The Supreme Court was clear that India is a developing country and cheap medicines are an essence for healthcare of 1 billion people. The Supreme Court has taken a right step and thereby prohibited the liberal approach in granting patents and thus filtering the genuine inventions with frivolous inventions. which allows these companies to make huge amount of inventions
Regarding the investment in innovation in India, This decision is a huge setback to the investors who are interested in investing in India for R&D, I say that they must be cautious that whatever they are inventing should be as per the Indian market conditions or else they will face great amount of dissatisfaction as in the cases of Novartis, Bayer etc. Indian patent environment is not like US and the EU, Rather it is more society dependent than inventor dependent which is exactly the way should be. Following the judgement Novartis had withdrew all its investments of research in India.
By-:
Nitish Banka
Legal consultant
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