Paper - 1 : General and Commercial Laws

[Solution]
December-2012
Chapter - 1 : Co nstitution o f India
Answer [1] {C} (a) (b) (c)
(a) Freedom of trade and profession is provided under Artic le 19 (1) (g) of the
Constituti o n of India. This gives the citizens the right to pursue any trade,
profession, business or occupatio n i n any place within India. T his right is,
however, not absolute. It can be restricted by the State in the following cases:
- When the State feels it is essential to do so in the public interest.
- When it is felt that t h e r e s h ould be some basic qualifications for any
occupation or profession, it can provide so.
- When the State feels that it needs to establish control in some area of trade,
occupation or business, so that it can be better tended.
These restrictions shall be considered valid when the conditions of the trade or
business restricted at that time justify them, for example, for keeping the price of
essential services down. Hence, the State can take over these rights to any
extent from being one of the participants in that trade to being the only one,
provided it is justified in doing so.
On behalf of the State it was argued that Article 19(6) of the C onstitution
indica t e d , a s in its amended state, that the carrying on by the State, or by a
corporation owned or controlled by the State, of any trade, business or industry
or service, whether to the exclusion, complete or partial, of the citizens or
otherwise, was a permissible restriction on an individual's right of trading. [Sagir
Ahmad and Ors. vs The Govt. of The State of Uttar ... on 17 November, 1953]
(b) The Parliament can extend the legislative powers given to it by the Constitution
to formulate laws under special situations to include certain subjects of the State
List. Some of the conditions under which the Parliament may extend its powers
include the situations explained below:
In the National Interest (Under Article 249)
Proclamation of Emergency (Article 250) in any state by the President.
If two states agree that the Parliament can legally make laws with respect to
the two states, then the Parliament can make laws relating to any state or states
(Under Article 252)
For the implementation of treaties in the international interest of the country
(Under Article 253).
Failure of Constitutional Machinery in a State as a result of the inefficiency
of a State Legislature, as declared by a proclamation issued by the Pre s ident
(Under Article 356 (1) (b) )
Norm ally both the Union Government and the State Governm ents operate
within the limitations of the powers given to them by the Constitution. They enjoy
 equal powers to make laws relating to the concur ren t list items, which are of
general importa n c e such as succession, transfer of property, preventive
detention, education, etc. If there arises a conflict between a law passed by the
Union and that passed by one or more State Legislatures, precedence would be
given to the law made by the Union Parliament. However, problem arises when
either the Union or a State illegally encroaches upon t h e powers of the other
legis lature, or they may arise because the two laws do not coordinate. Only
where the legislation is on a matter in the Concurrent List, it becomes important
to apply the test of repugnancy and judge which act will apply. Normally the Union
law is given precedence, unless the State has reserved a law for the approval of
the Preside n t, in which case it will supersede the law made by the Union.
However, the Union can at all times cause an alteration or am endm ent in the law.
(c) The preamble of an Act is the introduction or the key to the Act. Although not a
part of the Act itself, and so does not perform any legal function, it is a valuable
key for understanding the Act and resolving the ambiguitie s in drafting. The
preamble provides the introduction to the Act and indicates its coverage. Both
these views are taken together in comprehending the importance of preambles
in interpretation of statutes. If the statute is clear in itself, the preamble is not
resorted to for gaining comprehens io n; if it is ambiguous or unclear, then the
preamble can be used to give a direction to the interpretation. It thus prescribes
an outline to the Act itself, letting the person reading it know what all it includes
within its bounds. The preamble specifies the intention behind the making of the
act, i.e. what is the mischief that the makers of the act sought to correct. It can be
one of the key starting points when we begin to understand a statute. The next
in line is the judgment of the Supreme Court (Girdhari Lal & Sons v. Balbir Nath
Mathur) wherein, on the subject of interpretation of Statutes, the Supreme Court
had laid down the law as hereunder:
Parliamentary intention may be gathered from several sources. First, of course,
it must be gathered from the statute itself, next from the preamble to the statute,
next from the Statement of Objects and Reasons, thereafter from parliamentary
debates, reports of committees and commissions which preceded the legislation
and finally from all legitimate and admissible sources from where there may be
light. Regard must be had to legislative history too.
Also, Novartis Ag Represented by It'S ... vs Union of India (Uoi) through
the ... on 6 Augu st, 2007.
Hamdard Dawakhana (Wakf) Lal .......... vs Union of India and others on
18 December, 1959.
Answer [3] (i)
The writ of prohibition is issued primarily to prevent an inferior court or tribunal from
exceeding its jurisdiction. It is issued by a superior court to infe r i o r co u r ts from
usurping a jurisdiction which is not legally vested in it, or in other words to compel
inferior courts to keep within the limits of their jurisdiction. Thus the writ is issued in
both cases whe r e t h e re is excess of jurisdiction and where there is absence of
jurisdiction (S. Govind Menon vs. union of India, AIR 1967 SC 1274 The writ can be
issued only when the proceedings are pending in a court. It can be issued only against
a judicial or legislative functionary, not administrative.
O n the other hand, the writ of Mandamus, meaning we comma n d , i s a
constitutional remedy provided by the Constitution of India, against holders of public
offices or against those perform ing public duties, to order them to perform their duties.
It can be issued to both individuals and organizations, and ensures judicial backing to
the person who needs to get a public duty done. It ensures that a person who has the
right to get some public duty performed in his favour can get a writ passed to get the
work done. The High Courts and the Supreme Court have the powers to issue this
writ. This writ remedy cannot be used in case the act r e q u i r ed to be done is
discretionary, and the authority responsible for it has the right to decide whether or not
to do it.
When there is the option of another action through the normal route, then this writ
is usually not used, hence it is termed as an extra ordinary constitutional remed y .
Generally it covers acts of the lower courts, public officers an d government
corporations. Moreover, it can be used even before a case is decided.
Chapter - 2 : Interpretation of Statutes
Answer [2] (i)
The external aids of interpretation are generally used when the statute is vague or
indistinct in meaning. Here, the i n ner means of interpretation would not serve the
purpose and some external means, like the circumstances that prevailed at the time
of making of the statute, comm ittee reports, if any, links with other acts, dictionaries
or

even case histories from other countries, would have to be utilized. If there were other
acts leading upto the current one, they could be looked into as well on the assumption
that they would shed some light over the current statute.
These external aids, however, have to be used with due care and only in situations
where the internal ones prove insufficient in giving an understanding of the statute or
its part. This is because firstly, they are extraneous to the statute in question, and
however close to the subject matter, they might not give an accu r a t e picture. For
example, if an act is made in year 1889 regarding a particular thing, and another is
made in year 2008, the earlier act would not give a true picture if used as an aid for
interpretation of the new act. This is because the conditions and situations of both acts
were different; they were made against different social, political and e co no m ic
backdrops. This does not mean that it cannot at all be use for shedding light on the
subsequent act; it simply means that it should be used in moderation and with care,
and the context and underlying situations too should be kept in mind, while doing so.
Only then would the interpretation be a fair one.
Legislative or parliamentary history This would help in giving a general direction to
the interpretation. The parliamentary history helps in understanding the trend of the
legislative thought of the country thus providing a background for the statute under
study. This helps in providing an overview or a general cont e xt to the statute.
Parliamentary material
(a) Debates
Courts often take recourse to parliamentary material like debates in Constituent
Assembly, speeches of the movers of the Bill, Reports of Committees or
Commission, Statement of Objects and Reasons of the Bill, etc.
Fagu Shaw etc. v The State of West Bengal We m ay therefore legitimately
refer to the Constituent Assem bly debates for the purpose of ascertaining what
was the object which the Con s t it u ti o n makers had in view and what was the
purpose which they intended to achieve when they enacted the law in its present
form .
(b) Statement of Objects and Reasons
So far as Statement of Objects and Reasons, accompanying a legislative bill is
concerned, it is permissible to refer to it for understanding the background, the
antecedent state of affairs, t he surrounding circumstances in relation to the
statute and the evil which the statute sought to remedy. But, it cannot be used to
ascertain the true meaning and effect of the substantive provision of the statute.
(Devadoss (dead) by L.Rs, v. Veera MakaliAmmanKoil Athalur [16].
(c) Reports of Parliamentary Committees and Commissions
Reports of Commissions including Law Commission or Committees including
Parliamentar y C o m mittees preceding the introduction of a Bill can also be
referred to in the C o urt as evidence of historical facts or of surrounding
circumstances or of mischief or evil intended to be remedied. [Mithilesh Ku mari
v Prem Behari Khare, Rosy and another v State of Kerala and others]
Chapter - 3 : An Overview of Law Relating to Specific Relief; Arbitration and
Conciliation Torts; Limitation and Evidence
Answer [2] (ii) (iii) (iv)
(ii) Section 19 in the Specific Relief Act, 1963
As per this section, specific performance of a contract may be enforced against-
(a) either party thereto;
(b) any other person claiming under him by or through a title arising after the
contract was entered into, except a bona fide transferee for value
(c) any person claiming under a title which, though pr io r to the contract and
known to the plaintiff, might have been dislodged by the defendant;
(d) when a com pany has e ntered into a contract and subsequently becomes
amalgamated with another company, the resultant, amalgamated company
which arises out of the amalgamation;
(e) when the promoters of a company have entere d into a pre-incorporation
contract for the purpose of th e company and such contract has been
 accepted by the company has and comm unicated such acceptance to the
other party to the contract.
[Dalmia Jain and Company Ltd. vs Kalyanpur Lime Works Ltd. and Anr. on
10 December, 1962.]
(iii) Additional award is the award that is given by the arbitral tribunal at the instance
of either party. It all o ws f o r claims that were originally included in the arbitral
proceedings but omitted from the award. The request for such an additional claim
can be sub m i t te d within thirty days of the original award being received. The
tribunal will intimate its decision within a period of sixty days, which period can be
extended upon need.
Th is is und er Section 33, wh ich is for Correction and in terpretation o f
award and add itional award. This Section says th at -
Within thirty days from the receipt of the arbitral award, unless another period of
time has been agreed upon by the parties, a party, with notice to the other party,
may request the arbitral tribunal to correct any com putational, c le r ical or
typographical errors or any other errors of a similar nature.
If so agreed by the parties, a party, with notice to the other party, may request the
arbitral tribunal to give an interpretation of a specific point or part of the award.
Within thirty days of receiving the award, either party can request t h e arbitral
tribunal to make an additional arbitral award as to claims presented in the arbitral
proceedings but omitted from the arbitral award.T he arbitral tribunal shall make
the additional arbitral award within sixty days from the receipt of such request.
(v) Sections 12 to 19 and Section 24, which are contained in Part III of the Limitation
Act, 1963, titled Computation of Period of Limitation, provide the details for this.
They are as under:
Section 12 It says that the time required for filing a suit, appeal or application,
either against a decree or order or otherwise, is exclusive of the day from which
the limitation period is calculated. Moreover, the time needed for obtaining a copy
of the order being appealed against is also to be excluded.
The following are to be excluded while calculating this period :
- In calculating the period of limitation for any suit, appeal or application, the
day from which such period is to be reckoned, shall be excluded.
- In computing the period of limitation for an appeal or an application for leave
to appeal or for revision or for review of a judgm ent, the day on which the
judgment was pronounced and the time required for obtaining a copy of the
decree, sentence or order appealed from shall be excluded.
- Where a decree or order is appealed from for sought to be r ev ised or
reviewed, or where an application is made for leave to appeal from a decree
or order, the time requisite for obtaining a copy of the judgment on which the
decree or order is based or from which it is sourced, shall be excluded.
- In computing the period of limitation for an application to set aside an award,
the time requisite for obtaining a copy of the award shall be excluded.
 However, in computing under this section the time requisite for obtaining a copy
of a decree or an order, any time taken by the court to prepare the decree or
order before an application for a copy thereof is made shall not be excluded.
Answer [3] (ii) (iii) (iv)
(ii) The basic differences are as follow:
- Performance/ non-performance Injunctions are an order by the court not
to do a specific act, i.e. an order for non-performance, whereas an order for
specific performance is issued to make someone do the very thing
mentioned in the order.
- Types of cases Injunctions are normally for torts and other civil wrongs;
specific perform ance is generally used in case of contracts.
- Necessity o f c o n tr a ct In case of injunctions, there is no need for prior
contracts, as they are issued mainly for acts done without the other party
agreeing to or even knowing about them. Specific performance, on the other
hand, requires a contract to be entered into first, the breach of which gives
right to the need for specific performance as a remedy. [The only exception
here is an agreement of forbea r a nce; in this case, injunctions might be
issued.]
(iii) Section 2 (1)(a) of the Arbitration and Conciliation Act, 1996, defines "Arbitration
means any arbitration whether or not administered b y p ermanent arbitral
institution."
ARBITRATION can be defined as a method by which parties to a dispute get the
dispute settled through the intervention of a third independent person. Parties can
also settle their disputes th r o u g h a permanent arbitral Institutions like, Indian
Council of Arbitration, Chamber of Commerce, etc. Arbitra tio n, a form of
alternative dispute resolution (ADR), is a legal technique for the resol u ti o n of
disputes outside the courts, thus saving time and m oney. In this, the parties to a
dispute refer it to one or more persons (the arbitrators or arbitral tribunal), by
whose decision (known as the arbitral award) they agree to be bound.
Halsbury defines Arbitration as follows:
"Arbitration is the reference of dispute between not less than tw o parties, for
determination, after hearing both sides in a judicial man n e r , by a person or
persons other than a court of competent jurisdiction.
Conciliation
It is an informal process in which both the disputi ng parties appoint a neutral
conciliator or a third person to bring them to an agreement and to help end the
dispute. This is done by sorting out any misinterpretations between the parties
and removing the technical difficulties and working out possible solutions. It is an
alternativ e d ispute resolution (ADR) process whereby the parties to a dispute
using the help of a conciliator, resolve the issues bothering them. The conciliator
meets with the parties separately in an attem pt to resolve their differences. They
 help by lowering tensions, improving communications, interpreting issues,
providing technical assistance, exploring potential solutions and bringing about
a negotiated, mutually acceptable settlement.
Conciliation differs from arbitration in that the conciliation process, in and of itself,
has no legal standing, and the conciliator usu ally has no authority to seek
evidence or call witnesses, usually writes no decision, and makes no award.
The main differences between the two are as follows:
- Legal standing Arbitration has a legal standing; conciliation does not have
a legal standing.
- Authority to seek evidence or examine witnesses An arbitrator has the right
to seek evidence or call witnesses; a conciliator does not have these rights.
- Writing of decisions- An arbitrator can write decisions, a conciliator just aids
the two parties in reaching to an agreement.
- Making of awards An arbitrator can pass an arbitral award; a conciliator
can pass no awards; just help in a conciliation agreem ent.
(iv) Wh at Is Slander?
Slander verbally harming the reputation or activities of another individual or entity,
using information that is known to be false or misleading. This might involve not
only the use of specific words to damage a reputation, but also actions such as
hand gestures or facial expressions in order to reinforce the misinformation that
is being distributed. Any defamati o n that is expressed in an ephemeral or
transitory mode is usually considered slander. For example, a disgruntled
shareholder might say bad things about the com pany, like it is going bankrupt. If
it is said in a form that cannot be retained for future references, it is slander.
What Is Libel?
Like slander, libel also refers to statements or opinio n s t h at damage another
person's reputation. The difference is that libel takes the form of fixed, relatively
permanent or printed material rather than verbal assaults. F or example, the
employee in the above mentioned illustration may choose to leave the company
and write an article about the company operations, against the directors etc. The
article may be supported by photographs that were taken and then used out of
context or to reinforce the purported validity of the lies. This type of activity would
likely constitute libel.
Answer [4] (v)
The Principle of estoppel says that a person m ay not approbate and reprobate at the
same time, and that if he has said or claim ed something at one time, he may not claim
the opposite anytime hence.
It is a rule of law which says that when person A, by act or words, gives person
B reason to believe a certain set of facts upon which person B relies or takes some
action, person A cannot later, to his (or her) benefit, deny those facts or say that his
(or her) earlier act was improper or that it is a nullity.
 An exa m ple of this principle is the Doctrine of feeding the grant by estoppel,
which covers the case of a person who leads another to believe that he is the owner
of any property and transfers it to him for value. Later on, he is stopped from denying
his ownership of the property and rejecting the transfer if he acquires the rights to that
property subsequent to that transfer. The pre-requisites are:
- The transferor should have led the transferee to believe that he is, in fact, the
owner of that property.
- The rights shod have devolved on the transferor subsequently.
- The transfer was in good faith and for value.
- The transferee h a d n o notice of the transferors real position at the time of
transfer.

Chapter - 4 : Law relating to T ransfer of Property

Answer [2] (iv)
According to Section 10 of the Transfer of Property Act, 1882 the right of absolute
alienation of property is not to be allowed to the transferor.
Absolute restraint is not allowed as it limits the transferee from freely transferring the
property as he thinks fit. The term might also apply to restrictions placed on the
enjoyment of acquired property. For example, a condition that the transferee cannot
further sell the land except when the price is above a fixed sum comes under th is
term.
However there are certain exceptions to Section 10.
1. A condition that the lessee cannot further sublet the property is valid.
2. In the case of a woman to whom the Hindu, Buddhist or M uslim personal law
does not apply shall not have power to transfer the property as long as her
marriage subsists.
Answer [3] (v)
The differences between mortgages and charges are as under
- Interest/Security A mortgage involves transfer of an interest in property,
whereas a charge is created as a security for a debt.
- Creation Mortgages are created voluntarily when the parties so decide, but
a charge can be created voluntarily or it can be a mandatory requirement
under a law for the time being in force.
- Mode of creation M ortgages need to be in writing to take effect; charges
can also be oral; if they are oral they can be reduced to writing.
- Registration Mortgages need compulsory registration to be effective, for
that they need to be attested by at least two witnesses. Charges need not
be registered, unless a company creates them .
- Foreclosure There is a possibility of foreclosure i n ce r t a in types of
mortgages, not all, but charges are without this benefit. The only recourse
a charge-holder will have in case of non-payment is to get the property sold.
 - Personal liability In a mortgage, the element of personal liability will be
generally present, but it will depend also on the category of mortgage
chosen. In a charge, it I always absent.
Answer [7] (a) (b)
(a) Under the Transfer of Property Act, 1882, in order to be valid, a notice has to be
valid, has to be a proper notice. There are two things to be kept in mind, so that
it can be termed as a proper notice
- It has to clearly specify the intention to terminate tenancy.
- The date of termination of tenancy should be mentioned in it.
Moreover, depending on whether it is a monthly or yearly lease, the notice period
should be fifteen days and six months respectively.
In this case, the lease is gran t e d by Amrit to Sukant for four years, w.e.f. 1st
June, 2001. This lease ends on 1st June, 2005. Since the tenant has continued
residing in the property after this period, we can safely assume that the lease
after 1st June, 2005 continues as a monthly lease, for which a fifteen day notice
suffices.
Hence,
(i) The notice is a valid notice.
(ii) The tenancy is a m onthly tenancy.
(b) This case pertains to the Law of Torts, i.e. the law pertaining to vicarious liability.
Under these rules, the principal is liable for the wrongs of his agents, based on
the maxim Qui facit per alium facit per se ( He who acts through an agent acts
himself, i.e. even if someone is acting through an agent, and the agent is acting
as per the pr incipals directions, it can be assumed that the principal is acting
himself.).
In this case, however, the agent acted without the knowledge of the principal and
defrauded th e lady client, inducing her to sign the documents transferring her
property to him. Even though the principal had no knowledge of the agents acts,
he is vicariously liable, since the agent acted in the course of em ployment.
A leading case that supports this decision is the case of Lloyd vs. Grace, Smith
& Co. (UKHL) and Sitaram Motilal Kalal vs Santanuprasad Jaishankar B h a tt
(1966).

Chapter - 6 : Law relating to Reg istration of Documents

Answer [8] (b)
Sections 28 and 29 of The Registration Act, 1908 cover the provisions for the place
of registration of documents related to land and other property.
According to Section 17 of the Act, documents relating to creation, diminution or
alteration of rights related to imm ovable property, if not registered, will not have the
same effect as it would have had if it had been registered.
 Section 28 provides that all documents mentioned in Section 17 as compulsorily
registrable would be registered in the office of the sub-registrar in whose jurisdiction
or sub-district the property or a part of it is located. Any other document would be
registered in the office of the Sub-Registrar within whose jurisdiction the document
was executed, or where the persons who are executing the document want it to be
registered.
Hence, in this case, the sale deed of the property shall be registered at Noida
where the property is situated. Registration done elsewhere would be void. [Harendra
Lal Roy Chowdhuri vs Srimati Hari Dasi Debi on 25 M arch, 1914].
Chapter - 7 : Law Relating to Information Technology
Answer [4] (i) (ii)
(i) An instrument under Section 2(14) of the Indian Stamp Act, 1899 implies and
includes any docum e n t t h a t create, diminishes or alters any right, interest or
liability in property. For example, a lease deed is an instrument. A valid
instrument needs to be signed in order to be complete and functional. Moreover,
it need not be a separate deed; it can even be in the form of an entry in a
register, or of a letter or communication evidencing receipt of an amount. Under
the Indian Stam p Act, 1899, an instrum ent is chargeable to duty.
Moreover, any instrument has to be seen in entirety, in its spirit rather than its
form, in order to judge the incidence and quantum of stamp duty. One cannot
determine duty incidence simply by looking at the form and i g n o ring the
substance that m ight be camouflaged to reduce or counter the incidence of duty.
Andhr a H ig h Court -Bahadurrinisa Begum vs Vasudev Naick And Ors. on 16
December, 1965
(ii) It is true that the m a j o r ity of problems in information technology relate to the
machine, the medium and the message.
The machine This includes the instrum ents used in IT ; if these are not
foolproof, the machine and consequently the data or information contained
therein might be endangered. Additional safety measures like password locking,
data encryption should be used.
The message There are copyright and h ac kin g issues. Moreover, different
countries address these iss u e s differently, so there is no standardization and
hence, very less chance of any dispute being properly addressed.
The medium - Unless the information is encrypted, or saved in a form at th at
cannot be tampered with, the information m ay be endangered.
All these problems are compounded by the information available on the internet,
which can be freely copied and creates copyright issues and other problems.
Answer [8] (a)
This is the offence of hacking as per Section 66 under the Information Technology
Act, 2000. This Section provides that if any person deliberately or knowingly causes
destruction or deletio n in information stored in a computer resource, or causes its
value or importance to be reduced, or otherwise harms it, he is committing the offence
of hacking. The punishment for which he m ight be liable will be imprisonment upto
three years or fine extending upto two lakh rupees or with both.
Chapter - 8 : The Cod e of Civil Procedu re, 1908 (C.P.C.)
Answer [4] (iii)
As per Rule 9 of the Code of Civil Procedure (Amendment) Act, 2002
1. Where the defendant resides within the jurisdiction of the Court in which the suit
is instituted, or has an agent resident within that jurisdiction who is empowered
to accept the service of the summ ons, the summ ons shall, unless the Court
otherwise directs, be delivered or sent either to the proper officer to be served by
him or one of his subordinates or to such courier services as are approved by the
Court.
2. The proper officer may be an officer of a Court other than that in which the suit
is instituted, and where he is such an officer, the summons may be sent to him
in such m anner as the Court m ay direct.
3. The service s o f su m mons may be made by delivering or transmitting a copy
thereof by registered post acknowledgment due, addressed to the defendant or
his agent empowered to accept the service or by speed post or by such courier
services as are approved by the High Court or by the Court referred to in sub-rule
(1) or by any other means of transmission of documents (including fax message
or electronic mail service) provided by the rules made by the High Court:
Provided that the service of summons under this sub-rule shall be made at the
expenses of the plaintiff.
4. Notwithstanding anything contained in sub-rule (1), where a defendant resides
outside the jurisdiction of the court in which the suit is instituted, and the Court
directs that the service of summons on that defendant m ay be made by such
mode of service of s u m m o n s a s is referred to in sub-rule (3) (except by
registered post acknowledgment due), the provisions of Rule 21 shall not apply.
5. When an acknowledgment or any other receipt purporting to be signed by the
defendant or his agent is received by the Court or postal article containing the
summons is received back by the Court with an endorsement purporting to have
been made b y a postal employee or by any person authorised by the courier
service to the effect that the defendant or his agent had refused to take delivery
of the postal article containing the summon s or had refused to accept the
summons by any other means specified i n su b -rule (3) when tendered or
transmitted to h im, the Court issuing the summons shall declare that the
summons had been duly served on the defendant:
Provided that where the summons was properly addressed, pre-paid and duly
sent by registered post acknowledgm ent due, the declaration referred to in this
sub-rule shall be made notwithstanding the fact the acknowledgment having been
 lost or mislaid, or for any other reason, has not been received by the Court within
thirty days from the date of issue of summ ons.
6. The High Court or the District Judge, as the case may be, shall prepare a panel
of courier agencies for the purposes of sub-rule (1).
7. Mode of service - Service of the summons shall be made by delivering or
tendering a copy thereof signed by the Judge or such officer as he appoints in
this behalf, and sealed with the seal of the court.
8. Service on several defendants - Save as otherwise prescribed, where there are
more defendants than one, service of the summons shall be made on eac h
defendant.
9. Service to be on defendant in person when practicable, or on h i s agent -
W h erever it is practicable, service shall be made on the defendant in person,
unless he has an agent empowered to accept service, in which case service on
such agent shall be sufficient.
10. Service on agent by whom defendant carries on business -
(i) In a Suit relating to any business or work against a person who does not
reside within the local limits of the jurisdiction of the court from which the
summons is issued, service on any manager or agent, who, at the time of
service, personally carries on such business or work for such person within
such limits, shall be deemed good service.
(ii) For the purpose of this rule the master of a ship shall be deemed to be the
agent of the owner or charterer.
11. Service on agent in charge in suits for immovable property - Where in a suit to
obtain relief respecting, or compensation for wrong to, immovable p r o p e r ty,
service cannot be made on the defendant in person, and the defendant has no
agent empowered to accept the service, it may b e made on any agent of the
defendant in charge of the property.
12. Where service may be on an adult mem ber of defendants family - Where in any
suit the defendant is absent from his residence at the time when the service of
summons is sought to be effected on him at his resi d e n ce a nd there is no
likelihood of his being found at the residence within a reasonable time and he has
no agent empowered to accept service of the sum mons on his behalf, service
may be made on any adult mem ber of the fam ily, whether m ale or female, who
is residing with him . Explanation: A Servant is not a m em ber of his family within
the meaning of this rule.
13. Person served to sign acknowledgement - Where the serving officer delivers or
tenders a copy of the summons to the defendant personally, or to an agent or
other person on his behalf, he shall require the signature of the person to whom
the copy is so delivered or tendered to an acknowledgement of service endorsed
on the original summons.
14. Procedure when defendant refuses to accept service, or cannot be found - Where
the defendant or his agent or such other person as aforesaid refuses to sign the
acknowledgment, or where the serving officer, after using all due and reasonable
diligence, cannot find the defendant, who is absent from his residence at the time
when service is sought to be effected on him at his residence and there is no
likelihood of his being found at the residence within a reasonable time and there
is no agent empowered to accept service of the summons on his behalf, nor any
other person on whom service can be made, the serving officer shall affix a copy
of the summons on the outer door or some other conspicuous part of the house
in which the defendant ordinarily res id e s or carries on business or personally
works for gain, and shall then return the original to the court from which it was
issued, with a report endorsed thereon or annexed thereto stating that he has so
affixed the copy, the circumstances under which he did so, and the name and
address of the person (if any) by whom the house was ide ntif ied and whose
presence the copy was affixed.
Answer [8] (c)
In this case, the plaintiff can file an application for a stay on the subsequent suit. Stay
of suit implies the action taken under Section 10 of the Code of Civil Procedure, 1908.
It is the Doctrine of res sub-judice. The doctrine of res sub-judice refers to a matter
p e nding before a judge, or court, or not yet decided. It is a matter under jud icia l
consideration, meaning that a decision regarding the case it pertains to has not been
reached yet. The doctrine or rule implies that if a matt e r i s awaiting judicial
proceedings and a decision may not be heard in any other court until it has been
decided upon in the first court the matter was filed in. This doctrine helps in avoiding
duplicity of cases, and prevents opposing judgements being reached in same matters
(Section 10 of the Code of Civil Procedure, 1908). When such a case arises, generally
a stay operates on the second or following suit.
Chapter - 9 : The Code of Criminal Procedure, 1973
Answer [4] (v)
Section 190 of the Code of Criminal Procedure, 1973 covers taking of cognizance of
offences by magistrates. It can be done when he receives an intimation of the fact in
any of the following ways
Upon com plaint of the offence
When a police officer reports the happening of such an offence
When he come to know of such an offence being committed
When information regarding such an offence is received f r om someone other
than the police
The magistrate takes cognizance only when the required procedure is followed. In
case the case is initiated other than by the magistrate acting suo motu, the accused
can apply for an inquiry to be held.
Section 191. Transfer on app lication of the accused
When a Magistrate takes cognizance of an offence under clause (c) of sub-section (I)
of section 190, the accused shall, before any evidence is taken, be informed that he
is entitled to have the case inquired into or tried by another Magistrate, and if the
a c c u sed or any of the accused, if there be more than one, objects to fur t h er
proceedings before the Magistrate taking cognizance, the case shall ba transferred
to such other Magistrate as may be specified by the Chief Judicial Magistrate in this
behalf.
Section 192. Making over of cases to Magistrates
Any Chief Judicial Magistrate (CJM ) may, after taking cognizance, hand over the case
for inquiry or trial to and competent Magistrate subordinate to him . L i ke w ise, any
Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate
may, after taking cognizance of an offence, m ake over the case for inquiry or trial to
such other competent Magistrate as the Chief Judicial Magistrate may, by general or
special order, specify, and thereupon such M agistrate m ay hold the inquiry or trial.
Chapter - 10 : Law Relating to Right to Information
Answer [7] (c)
According to the Right to Info r m a t ion Act, 2005, no lower court is allowed to hear
petition regarding suits or applications against any orders made und e r this Act
(Section 23).
Under this Act, the Public Information Officer (PIO) has to provide the information
within thirty days (Forty eight hours if the matter pertains to the life or liberty of
another). If he takes no action, it is presumed to be deem ed refusal (Section 7).
Bimal would be recommended not to file any suit in the civil court for not providing
the required inform ation to him. He may, however, approach the next higher authority
in the public authority or organization within thirty days of deeme d refusal or from
expiry of the time required for making the decision or giving the information (Section
19). He may also approach the State Information Com mission, which may decide to
impose penalty on the PIO (Section 20).
Chapter - 11 : Objective Questions
Answer [5] (a) (b)
(a) (i) 395 articles and 12 schedules
(ii) intergrity
(iii) immovable
(iv) perpetuity
(v) magistrate
(vi) proclaimed offender
(vii) ` 25,000/-
(b) (i) (c) Contract for rent laws
(ii) (b) Bill of exchange
(iii) (d) The appointm ent of adjudicating officer.
 (iv) (b) Prim e M inister of India
(v) (b) District Court
(vi) (c) 90 days
(vii) (b) 30 days
(viii) (d) Section 93.
Answer [6]
(i) True. This is as per Section 24 of the Indian Stamp Act, 1899, which provides
that in case of property subject to mortgage or any other encumbrances, the
assessee is to treat as part of consideration any unpaid amount due on the
mortgage and is to pay stam p duty on the total amount.
(ii) True. As per Order 5 of The Civil Procedure Code, 1908, summons need to be
signed by the judge from whose court it is issued, and sealed with the seal of
the Court in order to be valid.
(iii) True. Section 260 Clause 2 of the Code lists certain offences which may be
summarily tried by any Chief Judicial Magistrate, any M etropolitan M agistrate
o r a n y Judicial Magistrate F irst Class. The offences that may be tried
summarily under this Section are:offences not punishable with death, life
imprisonment, or imprisonm ent for a term exceeding two years.
(iv) True. As per Section28 of the Right to Information Act, 2005 - I n normal
course, information to an applicant shall be supplied within 30 days from the
receipt of application by the public authority. If information sought concerns the
life or liberty of a person, it shall be supplied within 48 hours by the PIO.
(v) False. The Conciliator under the provisions of the Arbitration and Conciliation
Act, 1996 shall not be bound by the Code of Civil Procedure, 1908 or the Indian
Evidence Act, 1872.
(vi) False. Under Section 2 (1) (b) of th e Information Technology Act, 2000,
addressee means a person who is intended by the originator to receive the
electronic record but does not include any intermediary.
(vii) False. A document execute d b y several persons at different times may be
presented for registration and re-registration within four months from the date
of each execution.(Section 24, Indian Registration Act, 1908).
(viii) True. As per Section 31 of the Indian Stamp A ct , 1 8 9 9, the Collector is to
determine the stamp duty payable upon the instrument, but he cannot impound
the instrument or impose any penalty.
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