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 Jurisprudence, Interpretation and General Laws
December – 2023
Exam Paper
Time:- 3 Hrs [100 Marks]
1. Comment on the following
The Principal of a convent school, Agartala, Sister Mary Fernandez, filed a case against two persons
named, Ali Kehtan and John Augustine alleging that they had made defamatory remarks in the
complaint which they had submitted to the Deputy Commissioner, Agartala. The accused stated in the
complaint ‘‘that the building of the aforesaid school is quite unsafe and it may bring about any
disaster upon the students of this school at any time; that it as a money minting institution; that the
indiscipline among the students is to an unlimited extent and this has created a great problem for the
nearby residents. That it appears that this school has become a meeting place for the both sexes and
the principal, Sister Mary Fernandez is turning a deaf ear towards the character of the students; that if
these are not checked in time, they may become a great problem for the city’’.

In an enquiry before the Sub Divisional Magistrate (SDM), the allegations of the accused were found to
be false and their complaint was dismissed.

Consequently, Sister Mary Fernandez approaches police station to file criminal defamation case
against the accused persons. Police registers a case of defamation, a bailable offence against Ali
Kehtan and John Augustine, who later files an application in Court asking for anticipatory bail.

Sister Mary Fernandez also files civil suits seeking compensation for defamation. In the reference of
above facts answer the following questions :

(a) What is criminal defamation in Indian law ?

[4 Marks]
Answer
According to Section 499 of Indian Penal Code, 1860 whoever, by words either spoken or
intended to be read, or by signs or by visible representations, makes or publishes any
imputation concerning any person intending to harm, or knowing or having reason to believe
that such imputation will harm, the reputation of such person, is said, except in the cases
hereinafter excepted, to defame that person.

Explanation 1
It may amount to defamation to impute anything to a deceased person, if the imputation would
harm the reputation of that person if living, and is intended to be hurtful to the feelings of his
family or other near relatives.

Explanation 2
It may amount to defamation to make an imputation concerning a company or an association or
collection of persons as such.

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 Explanation 3
An imputation in the form of an alternative or expressed ironically, may amount to defamation.

Explanation 4
No imputation is said to harm a person's reputation, unless that imputation directly or
indirectly, in the estimation of others, lowers the moral or intellectual character of that person,
or lowers the character of that person in respect of his caste or of his calling, or lowers the
credit of that person, or causes it to be believed that the body of that person is in a loothsome
state, or in a state generally considered as disgraceful.

(b) Is the application for ‘anticipatory bail’ by accused Ali Kehtan and John Augustine maintainable ?
Explain.
[4 Marks]
Answer
Section 438 of the Code of Criminal Procedure, 1973(Cr. P.C.) provides the provisions relating to
‘Anticipatory Bail’. According to section 438 of Cr. P.C. when any person has reason to believe that he may
be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court
or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in
the event of such arrest, he shall be released on bail.

Defamation being a bailable offence and anticipatory bail under Cr.P.C. can be given only to a person who
apprehends arrest for a non-bailable offence. Hence in the given situation application of Ali Kehtan and
John Augustine is non-maintainable.

(c) Whether the compalaint filed by the Ali Kehtan and John Augustine against Sister Mary Fernandez
leads to Libel defamation or Slander defamation ? Explain.
[3 Marks]
Answer
In libel, the defamatory statement is a representation made in some permanent and visible form, such as
written words, caricatures, cinema films, effigy, statute, recorded words, printing or pictures.

In slander, it is made with spoken words or in some other transitory form, whether visible or audible,
statement of temporary nature such as gestures, spoken words or inarticulate but significant sounds.

In the given situation, the complaint made can lead to be Libel defamation of Sister Mary Fernandez.

Alternate Answer
Eight Exception provided under section 499 of the Indian Penal Code, 1860 provides that it is not
defamation to prefer in good faith an accusation against any person to any of those who have lawful
authority over that person with respect to the subject-matter of accusation.

Illustration to the eight exception provided under section 499 of the Indian Penal Code, 1860,
provides that if A in good faith accuses Z before a Magistrate; if A in good faith complains of the
conduct of Z, a servant, to Z's master; if A in good faith complains of the conduct of Z, a child, to Z's
father-A is within this exception.
In the given situation, the complaint made may not lead to defamation.

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(d) What is the jurisdiction of the Court to try civil suit ‘where wrong done to the person’ ?
[3 Marks]
Answer
Section 19 of the Code of Civil Procedure, 1908 provides the provisions relating to Suits for
compensation for wrongs to person or movables. It states:
Where a suit is for compensation for wrong done to the person or to movable property, if the
wrong was done within the local limits of the jurisdiction of one Court and the defendant
resides, or carries on business, or personally works for gain, within the local limits of the
jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of
the said Courts.

(e) What is ‘publication of defamatory words’ ?

[3 Marks]
Answer
'Publication of defamatory words' means the making known of the defamatory matter after it
has been written to some person other than the person of whom it is written. The ambit of
'publish' is very wide. The publication of defamatory matter means that it is communicated to
some person other than the person about whom it is addressed. In essence, publication is the
communication of the statement to any third party i.e. notthe claimant or the defendant.

(f) What is the time period of limitation for compensation in defamation ?

[3 Marks]
Answer
The time periods of limitation for compensation in defamation are as under:
For compensation for libel: One year from when the libel is published.
For compensation for slander: One year when the words are spoken, or, if the words are not
actionable in themselves, when the special damage complained of results.

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2. Attempt the following

(a) The modern Indian law as administered in courts is derived from various sources and
these sources fall under two heads i.e. Primary Sources and Secondary Sources. Judicial
precedents are considered as primary source of Indian laws. What do you mean by
Judicial Precedents ?
Read the following statements. Determine and explain what kind of precedent itis :
(i) ‘Vishaka guidelines’ were stipulated by the Supreme Court of India, in Vishaka and
others v. State of Rajasthan case in 1997, regarding prevention of sexual harassment
at workplace. They acted as precedent for many cases during 1997-2013 until
Protection of Women from Sexual Harassment Act, 2013 was enacted.
(ii) The decision of one High Court may not be binding on other High Court. But the
decisions can give a principle which may be helpful for the other High Court. The
other High Court may or may not follow the principle of the decision.
[5 Marks]
Answer
Judicial Precedent means the guidance or authority of past decisions of the courts for future
cases. Only such decisions which lay down some new rule or principle are called judicial
precedents.
(i) In the given situation, it is 'Original precedent' because 'Vishaka guidelines' created and
applied a new rule of law regarding prevention of sexual harassment at workplace. It was
law for future because its guidelines were applied in future similar cases.
(ii) In the given situation, it is Persuasive Precedent. A persuasive precedent is one which the
judges are not obliged to follow but which they will take into consideration and to which
they will attach great weight as it seems to them to deserve. For example, in certain
circumstances the decision of one High Court may not binding on other High Court but the
decisions can give a principle which may be helpful for the other High Court. So these types of
decisions willhave persuasive value.

(b) Ramjilal, the donor made two gifts to his nephew Gajendra, the donee. The first gift was
his one immovable property situated in Delhi. The second gift were three movable
properties. He did not get the gift deed registered for both movable and immovable
properties and died. Decide whether Gajendra entitled to both the gifts or not ? Discuss.
[4 Marks]
Answer
Instruments of gift of immovable Property falls under Documents which are compulsorily
registerable under Registration Act, 1908. In case where the donor dies before registration, the
document may be presented for registration after his death and if registered it will have same
effect as registration in his life time. On registration, the gift deed operates from the date of
execution.
It was held by Privy council in Kalyana Sundram v. Karuppa AIR 1927 PC 42 that while
registration is a necessary solemnity for the enforcement of a gift of immovable property, it
does not suspend the gift until registration actually takes place, when the instrument of gift has
been handed over by the donor to the donee and accepted by him, the former has done

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 everything in his power to complete the donation and to make it effective. And if it is presented
by the person having necessary interest with the within the prescribed period, the Registrar
must register it. Neither death nor the express revocation by the donor, is a ground for refusing
the registration, provided other conditions are compiled with. However, Movable properties are
not required to be compulsorily registered under the Registration Act, 1908.

In the given situation, the gift deed of three movable gifts to Gajendra are fully enforceable
because its registration is optional.
However, gift of immovable property is compulsorily registrable under the Registration Act,
1908. Hence Gajendra needs to apply for registration of gift deed of immovable property and if
it is registered by the Registrar than it shall be considered operative from the date of execution.

(c) A, the son of B sold the property of B presuming that he will get the property of B after
the death of B. Is it valid ? Explain.
[3 Marks]
Answer
Section 6 of the Transfer of Property Act, 1882 (TPA) contains some exceptions to the general
rule that property of any kind may be transferred. According to section 6(a) of TPA, the chance
of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the
death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.
Thus, A cannot sell property of B as it is mere chance of an heir apparent succeeding to an
estate.

(d) Raiz draws a cheque of ₹ 50,000 on his own account payable to Faiz but has only ₹ 49,000
in his account. Faiz presents the same to the bank but the cheque bounces due to
insufficient funds in Raiz’s account. Whether the above matter can be referred for
amicable settlement through mediation. Explain.
[3 Marks]
Answer
In the matter of Dayawati vs. Yogesh Kumar Gosain (17.10.2017-Del H.C): 2017 SCC Online Del
11032, the question before Delhi High Court was whether an offence under section 138 of
Negotiable Instruments Act can be referred for amicable settlement through mediation. Court
stated that “even though an express statutory provision enabling the criminal court to refer the
complainant and accused persons to alternate dispute redressal mechanisms (ADR) has not
been specifically provided by the legislature, however, the Code of Criminal Procedure, 1973
(Cr.P.C.) does permit and recognize settlement without stipulating or restricting the process by
which it may be reached. There is thus no bar to utilizing the ADR including arbitration,
mediation, conciliation (recognized under Section 89 of CPC) for the purposes of settling
disputes which are the subject matter of offence covered under Section 320 of Cr.P.C.”

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3. Attempt the following
In view of the above case, it can be said that the above matter can be referred for
amicable settlement through mediation.
(a) A sells two tons of oil to B, and sends one ton of oil by road and remaining one ton of oil
by ship. Mr. B receives delivery of the one ton of oil sent by road on August 11, 2022, but
before he receives the delivery sent by ship, he becomes insolvent in September, 2022. A,
still being unpaid, stops the goods in transit. The official Receiver in B’s insolvency claims
the goods.
(i) Decide whether Official Receiver will succeed. Explain.
(ii) Also discuss, can A resell the undelivered one ton of oil ?
[5 Marks]
Answer
(i) The right of stoppage in transit is a right of stopping the goods while they are in transit,
resuming possession of them and retaining possession until payment of the price. The right
can be exercised by the unpaid seller:
1. When the buyer becomes insolvent: The buyer is insolvent if he has ceased to pay his
debts in the ordinary course of business, or cannot pay his debts as they become due. It is
not necessary that he has actually been declared insolvent by the court.
2. The goods are in transit: The goods are in transit from the time they are delivered to a
carrier or other bailee like a wharfinger or warehouse keeper for the purpose of
transmission to the buyer and until the buyer takes delivery of them.

The right to stop in transit may be exercised by the unpaid seller either by taking actual
possession of the goods or by giving notice of the seller’s claim to the carrier or other person
having control of the goods.
In view of the above it can be said that A can stop the goods in transit as B becomes
insolvent, hence, Official Receiver will not succeed.
(ii) According to section 54(2) of Sale of Goods Act, 1930, where the goods are of a perishable
nature, or where the unpaid seller who has exercised his right of lien or stoppage in transit
gives notice to the buyer of his intention to re-sell, the unpaid seller may, if the buyer does
not within a reasonable time pay or tender the price, re-sell the goods within a reasonable
time and recover from the original buyer damages for any loss occasioned by his breach of
contract, but the buyer shall not be entitled to any profit which may occur on the re-sale. If
such notice is not given, the unpaid seller shall not be entitled to recover such damages and
the buyer shall be entitled to the profit, if any, on the re-sale.

Further, according to section 54(4) of Sale of Goods Act, 1930, where the seller expressly
reserves a right of re-sale in case the buyer should make default, and, on the buyer making
default, re-sells the goods, the original contract of sale is thereby rescinded, but without
prejudice to any claim which the seller may havefor damages.

In view of the above, a can resell the undelivered one ton of oil in accordance with above
provisions.

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(b) The Government has notified an order under an appropriate Statue in the month of
September, 2022 that no one shall buy or sell a particular explosive chemical except
under license obtained by the specified authority. Tarun applied in October 2022 and
has obtained a license to buy it and was keenly looking for person who had license to sell
it. Brju who has no license to sell, represents to Tarun that he has license to sell and
induces Tarun to enter into a contract for the sale of a certain quantityof explosive
chemical. On January 12, 2023 Tarun pays Brju ₹ 50,000 as earnest money. After few
days Tarun learns through one of friend that Brju has no license to sell. Tarun gives a call
to Brju to find the truth, Brju convinces Tarun that he shall obtain the license within
reasonable time i.e. before due date of delivery but he failed to obtain it. Can Tarun
recover advancepayment paid to Brju ? Answer with reasons and legal provisions.
[5 Marks]
Answer
The definition of Fraud has been provided under section 17 of the Indian Contract Act, 1872.
'Fraud' is an untrue statement made knowingly with the intent to deceive. The party defrauded
can avoid the contract and also claim damages. The chief ingredients of fraud are: a false
representation or assertion, of fact (and not mere opinion), made with the intention that it
should be acted upon, the representation must have actually induced the other party to enter
into the contract and so deceived him, the party deceived must thereby be indemnified, for
there is no fraud without damages, and the statement must have been made either with the
knowledge that it was false or without belief in its truth or recklessly without caring whether it
was true or false. It is immaterial whether the representation takes effect by false statement or
with concealment.

Therefore, Tarun can recover advance payment paid from Brju because it is voidable contract
on account of 'fraud' committed by Brju. Thus, Tarun can rescind/ cancel/ avoid the contract
and can sue to recover the advance paid to Brju. Also Tarun has right to claim compensation for
any damage which he has sustained through non- fulfilment of the contract.

Alternate answer to above paragraph

A voidable contract is initially considered legal and enforceable but can be rejected by one party
if the contract is discovered to have defects. If a party with the power to reject the contract
chooses not to reject the contract despite the defect, the contract remainsvalid and enforceable.

Now, in the given situation Brju defrauded Tarun to enter into contract. But later on Tarun
found that contract was entered into by fraud. Tarun could have avoided the contract at that
time and can recover advance paid.

But Brju conviced Tarun that he shall obtain the license within reasonable time, this means
Tarun does not rejected the contract and agreed to continue an illegal agreement, as buying &
selling of explosive chemical without licence has been prohibited by Government.

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 In view of the above, Tarun cannot recover advance paid if Brju failed to obtain the license as
illegal agreement is not enforceable at law.

(c) John who had his account in a private bank went to bank to deposit the cash. While he
was entering into the bank alongside cash box of the bank was also being carried inside,
the security guard in a haste ended up firing John thereby killing him. Mrs. Maria, wife of
Mr. John claims that bank is vicariously accountable for the incidence, but the bank
argues that it had not given the permission to employee to fire. Is the argument of bank
correct ? Decide.
[5 Marks]
Answer
General principles of vicarious liability is based on two maxims as follows:
(i) 'Qui facit per alium facit per se', which means, "One who does an act through another is
deemed in law to do it himself".
(ii) 'Respondeat superior' which means, "Let the principal be liable" / "let the superior be
responsible" for their subordinate.

Vicarious liability is a form of strict, secondary liability. Such liability arises in relationships
such as of master and servant, where master shall be liable for the act of the servant done in
course of employment. An act is said to be in course of employment if:
(i) The master has directly authorized the act to the servant;
(ii) The act done is authorized act done wrongly.

The wrong doing of an authorized act will make the master liable.

The facts in the instant case are, however, very clear that the incident in question took place
when the cash box was being brought into the bank premises and the deceased was also
entering the bank premises. If the security guard committed an error in perceiving the act of the
deceased as a threat to the cash box as an impediment of protection of the property of the bank
from a possible danger from any third party, the act of the security guard causing death of
deceased was in the course of the employment of the security guard and, therefore, it is not
possible to accept the defence pleaded by the bank that it is not vicariously liable.

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 Attempt all parts of either Q. No. 4 or Q. No. 4A

4. Attempt the following [5 Marks Each]

(a) Under Limitation Act, 1963 the limitation period for filling a particular suit is 3 years.
When the limitation period commenced Akash was minor of age 13 years. Due to his
legal disability he couldn’t institute the suit. Decide with reasons whether Akash can file
suit on cessation of the minority ?
[5 Marks]
Answer
Section 6 of the Limitation Act, 1963 is an enabling Section to enable persons under disability to
exercise their legal rights within a certain time. Section 7 supplements Section 6 and Section 8
controls these Sections, which serves as an exception to Section 6 and 7. Hence, under
Limitation Act minority or disability falls within Special exceptions which imposes limitation on
concessions under Section 6 and 7 to the person under disability includes minority up to
maximum of the 3 years as the period of limitation for any suit or application after cessation of
minority or disability.

This exception applies to all suits except suits to enforce rights of pre-emption. Further the
period of three years has been counted, not from the date of attainment of majority by the
person under disability, but from the date of cessation of minority/ disability.
Thus, Akash can file suit on cessation of minority.

(b) Does Section 79 of Information Technology Act, 2000 as originally enacted deal with
effect of other laws or not ? Answer in light of recent decision by Supreme Court of India
in the case of Google India Private Ltd. vs. Vishaka Industries and Ors. (2019).
[5 Marks]
Answer
According to section 79(1) of the Information Technology Act, 2000 an intermediary shall not
be liable for any third-party information, data, or communication link made available or hosted
by him. According to section 79(2)(c), the provisions of sub-section(1) shall apply if the
intermediary observes due diligence while discharging his duties under this Act and also
observes such other guidelines as the Central Government may prescribe in this behalf.

In the case of Google India Private Limited vs. Visakha Industries and Ors. (10.12.2019 - SC) the
Supreme Court decided that Section 79 of Information Technology Act, 2000(the Act) as
originally enacted, did not deal with the effect of other laws.

The Supreme Court inter alia decided that the finding by the High Court that in the case on
hand, in spite of the complainant issuing notice, bringing it to the notice of the Appellant about
the dissemination of defamatory matter on the part of the first Accused through the medium of
Appellant, Appellant did not move its little finger to block the said material to stop
dissemination and, therefore, cannot claim exemption Under Section 79 of the Act, as it
originally stood, is afflicted with two flaws. In the first place, the High Court itself has found that

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 Section 79, as it originally was enacted, had nothing to do with offences with laws other than
the Act. We have also found that Section 79, as originally enacted, did not deal with the effect of
other laws. In short, since defamation is an offence Under Section 499 of the Indian Penal Code,
Section 79, as it stood before substitution, had nothing to do with freeing of the Appellant from
liability under the said provision.

In view of the above discussion, it can be said that Section 79 of Information Technology Act,
2000 as originally enacted does not deal with effect of other laws.

(c) In the latest decision, Supreme Court of India in the case Satender Kumar Anil vs. Central
Bureau of Investigation and Ors (2022) took note of the continuous seeking bail after
filing final report on a wrong interpretation of Section 170 of the Code of Criminal
Procedure (Cr.P.C.) and thus made an endeavor to categorize the types of offenses to be
used as guidelines for the future. It issued directions for the investigating agencies and
also for the courts, however it cleared that these directions may be subject to State
amendments. Is right to bail is on touchstone of Article 21 of Indian Constitution ? State
the direction issued under this case.
[5 Marks]
Answer
In the case of Satender Kumar Antil vs. Central Bureau of Investigation and Ors. (11.07.2022 -
SC), taking note of the continuous supply of cases seeking bail after filing of the final report on a
wrong interpretation of Section 170 of the Code of Criminal Procedure ("the Code"), an
endeavour was made by Supreme Court to categorize the types of offenses to be used as
guidelines for the future.

The Supreme Court inter alia said that “The principle that bail is the Rule and jail is the
exception has been well recognised through the repetitive pronouncements of this Court. This
again is on the touchstone of Article 21 of the Constitution of India.”

Further, in this case, the Supreme Court issued certain directions, however they may be subject
to State Amendments. These directions are meant for the investigating agencies and also for the
courts. The directions are as under:
(a) The Government of India may consider the introduction of a separate enactment in the
nature of a Bail Act so as to streamline the grant of bails.

(b) The investigating agencies and their officers are duty-bound to comply with the mandate of
Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar
(supra). Any dereliction on their part has to be brought to the notice of the higher
authorities by the court followed by appropriate action.

(c) The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the
Code. Any non-compliance would entitle the Accused for grant of bail.

(d) All the State Governments and the Union Territories are directed to facilitate standing
orders for the procedure to be followed Under Section 41 and 41A of the Code while taking

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 note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608
of 2018 and the standing order issued by the Delhi Police i.e. Standing Order No. 109 of
2020, to comply with the mandate of Section 41A of the Code.

(e) There need not be any insistence of a bail application while considering the application
Under Section 88, 170, 204 and 209 of the Code.

(f) There needs to be a strict compliance of the mandate laid down in the judgment of this
Court in Siddharth (supra).

(g) The State and Central Governments will have to comply with the directions issued by this
Court from time to time with respect to constitution of special courts. The High Court in
consultation with the State Governments will have to undertake an exercise on the need for
the special courts. The vacancies in the position of Presiding Officers of the special courts
will have to be filled up expeditiously.

(h) The High Courts are directed to undertake the exercise of finding out the undertrial
prisoners who are not able to comply with the bail conditions. After doing so, appropriate
action will have to be taken in light of Section 440 of the Code, facilitating the release.

(i) While insisting upon sureties the mandate of Section 440 of the Code has to be kept in
mind.

(j) An exercise will have to be done in a similar manner to comply with the mandate of Section
436A of the Code both at the district judiciary level and the High Court as earlier directed
by this Court in Bhim Singh (supra), followed by appropriate orders.

(k) Bail applications ought to be disposed of within a period of two weeks except if the
provisions mandate otherwise, with the exception being an intervening application.
Applications for anticipatory bail are expected to be disposed of within a period of six
weeks with the exception of any intervening application.

(l) All State Governments, Union Territories and High Courts are directed to file
affidavits/status reports within a period of four months.

In view of the above mentioned, it can be said that Right to Bail is on the touchstone of Article
21 of Indian Constitution.

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 OR
(Alternate question to Q. No. 2)

4A. Explain the following [5 Marks Each]

(i) Explain the grounds for setting aside of an Arbitral Award under the Arbitration and
Conciliation Act, 1996.
Answer
Section 34 of the Arbitration and Conciliation Act, 1996 provides the provisions relating
to grounds for setting aside an Arbitral Award. Section 34(2) states:
(a) An arbitral award may be set aside by the Court only if—
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected
it or, failing any indication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an
arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the
terms of the submission to arbitration, or it contains decisions on matters beyond the
scope of the submission to arbitration: Provided that, if the decisions on matters
submitted to arbitration can be separated from those not so submitted, only that part of
the arbitral award which contains decisions on matters not submitted to arbitration
may be set aside; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance
with the agreement of the parties, unless such agreement was in conflict with a
provision of this Part from which the parties cannot derogate, or, failing such
agreement, was not in accordance with this Part; or

(b) the Court finds that,

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the
law for the time being in force, or
(ii) the arbitral award is in conflict with the public policy of India.

Explanation 1
For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of
India, only if,
(i) the making of the award was induced or affected by fraud or corruption or was in
violation of section 75 or section 81 ; or
(ii) it is in contravention with the fundamental policy of Indian law; or
(iii) it is in conflict with the most basic notions of morality or justice.

Explanation 2
For the avoidance of doubt, the test as to whether there is a contravention with the fundamental
policy of Indian law shall not entail a review on the merits of the dispute.

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 Further as per Section 34(2A), an arbitral award arising out of arbitrations, other than
international commercial arbitrations, may also be set aside by the Court, if the Court finds that
the award is vitiated by patent illegality appearing on the face of the award. Provided that an
award shall not be set aside merely on the ground of an erroneous application of the law or by
re appreciation of evidence.

(ii) Explain the concept and verification of e-stamping.

Answer
E-stamping is a computer based application and a secured electronic way of stamping
documents. The prevailing system of physical stamp paper/franking is being replaced by E-
stamping system. To reduce the instances of counterfeits and errors, government introduced
the e-stamping facility in 2013. The Stock Holding Corporation of India Limited (SHCIL) is the
Central Record Keeping Agency (CRA).

Through modernisation, there has been an introduction of E-stamp or as known as an electronic

stamp. E-Stamping is a computer-based procedure and a secure manner for the state to pay
non-judicial stamping duties. The prevailing system of physical stamp paper / franking is being
replaced by E-Stamping system.

Verification of e-stamping
An e-Stamp can be verified online by clicking on verify e-Stamp certificate and entering the
required details i.e
1. State
2. Certificate Number (UIN)
3. Stamp Duty Type ( Description of Document )
4. Certificate Issue Date
5. 6 character alphanumeric string

UIN is a Unique system generated number mentioned on the e-Stamp Certificate. Anybody,
having the Unique Identification Number, can check the authenticity of the Certificate through
www.shcilestamp.com.

(iii) Information Technology Act, 2000 provides legal framework for electronic
governance by giving recognition to electronic records and digital signature. Often
digital signature is considered as synonym of electronic signature under the Act. Is it
correct to consider both as same ? Discuss.
Answer
Digital Signature and Electronic Signature are not same as per the Information
Technology Act, 2000. The differences between Electronic Signature and Digital
Signature are as under:
Basis of Electronic Signature Digital Signature
Distinction
Definition Section Section 2(1)(ta) 2(1)(p)

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 Meaning An electronic signature is a digital Digital Signature is a secured
form of a web link signature that is signature that works with an
legally binding and secure electronic signature and relies on
public key
Purpose It is used for verifying adocument. It is used for securing adocument.
Validation The validation of electronic While the validation of digital
signatures is not performed by any signature is performed by trusted
trusted certificate authorities or certificate authorities or trust service
trust service providers. providers.
Security It is vulnerable to tampering as While it is highly secure as it
there are fewer security features comprised of more security features.
in electronicsignatures.
Verification Electronic signatures cannot A digital signature can beverified.
be verified.
Types Verbal, electronic ticks, or scanned Types of digital signatures include
signatures are the common types Adobe and Microsoft.
of e- signatures.
Utility It is simple to use, but it hasa lesser It is generally preferred because of
level of evidential value. more authenticity.

5. Attempt the following [5 Marks Each]

(a) Right to Information Act, 2005 specifies the manner in which requests may be made by a
citizen to the authority for obtaining the information. Discuss.
Answer
According to section 6 of the Right to Information Act, 2005(the Act) a person, who desires to
obtain any information under the Act shall make a request in writing or through electronic
means in English or Hindi or in the official language of the area in which the application is being
made, accompanying such fee as may be prescribed, to:
(a) the Central Public Information Officer or State Public Information Officer, as the case may
be, of the concerned public authority;
(b) the Central Assistant Public Information Officer or State Assistant Public Information
Officer, as the case may be, specifying the particulars of the information sought by him or
her:

However, where such request cannot be made in writing, the Central Public Information Officer
or State Public Information Officer, as the case may be, shall render all reasonable assistance to
the person making the request orally to reduce the same in writing.

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 An applicant making request for information shall not be required to give any reason for
requesting the information or any other personal details except those that may be necessary for
contacting him.

(b) What is the procedure for the commencement of conciliation proceedings under the
Arbitration and Conciliation Act, 1996 ? How many conciliators can be there in these
proceedings ?
Answer
Procedure for commencement of Conciliation Proceedings
According to Section 62(1) of Arbitration and Conciliation Act, 1996, the party initiating
conciliation shall send to the other party a written invitation to conciliate, briefly identifying the
subject of the dispute.
Section 62(2) states that Conciliation proceedings shall commence when the other party
accepts in writing the invitation to conciliate.
Section 62(3) states that if the other party rejects the invitation, there will be no conciliation
proceedings.

Section 62(4) states that if the party initiating conciliation does not receive a reply within thirty
days from the date on which he sends the invitation, or within such other period of time as
specified in the invitation, he may elect to treat this as a rejection of the invitation to conciliate
and if he so elects, he shall inform in writing the other party accordingly.

Number of conciliators
According to Section 63 of Arbitration and Conciliation Act, 1996, there shall be one conciliators
unless parties agree for two or more. Where there are more than one conciliators, they ought as
general rule, to act jointly.

(c) Referring to Civil Procedure Code, 1908, answer the following :

(i) Can a case triable by Special Judge as provided under Criminal Law Amendment Act,
1952 be transferred to High Court ? Discuss.
(ii) Discuss the jurisdiction of Courts depending upon their powers.
Answer
(i) In the case A.R. Antulay vs. R.S. Nayak and Ors. (29.04.1988 - SC) : 1988 AIR 1531, the issue
was whether the a case triable by Special Judge as provided under Criminal Law
Amendment Act, 1952 could be transferred to High Court or not. It was held that Court by
its directions cannot confer jurisdiction to High Court of Bombay to try any case by itself
for which it does not possess such jurisdiction.

The power to create or enlarge jurisdiction is legislative in character, so also the power to
confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law
and no Court, whether superior or inferior or both combined can enlarge the jurisdiction of
a Court or divest a person of his rights of revision and appeal. Thus, a Court by its discretion
cannot confer jurisdiction to High Court to try any case by itself for which it does not
possess such jurisdiction.

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 (ii) The jurisdiction of Courts depending upon their powers are as under:
(a) Original Jurisdiction- A court tries and decides suits filed before it.
(b) Appellate jurisdiction- A court hears appeals against decisions or decrees passed by
sub- ordinate Courts.
(c) Criminal and Appellate jurisdiction- the Supreme Court, the High Courts and the
District Courts have both original and appellate jurisdictions in various matters.

A territorial limit of jurisdiction for each court is fixed by the Government. Section 6 of the
Code of Civil Procedure, 1908 deals with Pecuniary jurisdiction. Section 9 of Civil Procedure
Code states that the Courts shall have jurisdiction to try all suits of a civil nature excepting
suits of which their cognisance is either expressly or impliedly barred.

Attempt all parts of either Q. No. 6 or Q. No. 6A

6. Attempt the following [5 Marks Each]

(a) Abhinav contracts with Manoj that he will paint his house located in Azad Nagar within a
month and during that time he will not take any other painting job in other premises. But
Abhinav breaches the contract. Manoj files suit seeking decree for specific performance
against Abhinav. Will Manoj succeed? Answer marking the difference between injunction
and specific performance.
Answer
Section 14 of the Specific Relief Act, 1963 inter alia provides that a contract which is so
dependent on the personal qualifications of the parties that the court cannot enforce specific
performance of its material terms or a contract, the performance of which involves the
performance of a continuous duty which the court cannot supervise, cannot be specifically
enforced.
In view of the above, Manoj will not succeed in seeking decree for specific performance of
contract against Abhinav as contract of painting is a contract of personal nature which depends
on personal qualification of Abhinav.

In the given situation contract entered into between Manoj and Abhinav have two stipulations
one is positive stipulation that he will paint his house in a month, and another is negative
stipulation that he will not accept any other painting job elsewhere. Here, though, Positive
stipulation cannot be specifically enforced but negative stipulation can be enforced by taking
injunction
The differences between Injunction and Specific Performance are as under:

Specific Performance Injunction

It is decreed to compel the performance of It is decreed to prevent the violation of negative

an active duty duty

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 It is enforced when the act agreed to be Injunction granted as a preventive relief i.e.
done is in the performance wholly or preventing a party from doing that which he is
partly of a trust under an obligation not to do.
Normally, it deals with contracts It deals not only with contracts but also with torts
and other subjects of equitable nature

If a contract is of positive in its nature, it If a contract is negative in its nature, it calls for the
calls for the relief of specific performance relief of injunction

(b) Discuss with reasons the following given cases under the Indian Evidence Act,1872 :
(i) A sells his horse to B. B asks ‘Is horse sound ?’, A says to B ‘‘Go and ask C, C knows all
about it’’. C says ‘Horse is sound’, Statement by C is confession or admission ?
(ii) A commits a murder of his colleague in spur of heated argument. A, on reaching home
confesses the offence before his wife. The wife was summoned by the Court to testify
against her busband, who was on trial for allegedly committing murder. Can A’s wife
act as witness ?
Answer
(i) Section 17 of the Indian Evidence Act, 1872 provides that an admission is a statement, oral
or documentary or contained in electronic form, which suggests any inference as to any
fact in issue or relevant fact, and which is made by any of the persons, and under the
circumstances, mentioned in Indian Evidence Act, 1872. An admission may be made by a
party, by the agent or predecessor-in-interest of a party, by a person having joint propriety
of pecuniary interest in the subject matter according to Section 18 or by a “reference”
according to Section 20.

Section 20 of Indian Evidence Act, 1872 provides statements made by persons to whom a
party to the suit has expressly referred for information in reference to a matter in dispute
are admissions.

Illustration to section 20 provides as under:

A says to B––“Go and ask C, C knows all about it”. C’s statement is an admission.

In view of the above it can be said that Statement of C that ‘Horse if Sound’ is admission.

(ii) Section 122 of Indian Evidence Act, 1872 provides that no person who is or has been
married, shall be compelled to disclose any communication made to him during marriage
by any person to whom he is or has been married; nor shall he be permitted to disclose any
such communication, unless the person who made it, or his representative in interest,
consents, except in suits between married persons, or proceedings in which one married
person is prosecuted for any crime committed against the other.

In view of the above provision, it can be said that A’s wife cannot act witness unless the
person who made communication, or his representative in interest, consents.

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(c) A promissory note is executed by Raja and Suraj and a stamp is afterwards affixed and
cancelled by Raja by again signing it, the stamping has taken place subsequent to the
execution. In this case, are the provisions of Indian Stamp Act, 1899 complied ?
Answer
According to section 17 of Indian Stamp Act, 1899, all instruments chargeable with duty and
executed by any person in India shall be stamped before or at the time of execution.
If the executant of a document has already completed the execution of the document and in the
eye of law the document, could be said to have been executed, a subsequent stamping,
(however close in time) could not render the document as one stamped at the time of execution.

In the case Rohini v. Fernandes, AIR 1956 Bom 421, where a promissory note is executed by
‘A’ and ‘B’ and a stamp is afterwards affixed and cancelled by ‘A’ by again signing it, the
stamping has taken place subsequent to the execution and hence, the provisions of Section 17
are not complied with.

In view of the above provision and case law, it can be said that the provisions of Section 17 of
Indian Stamp Act, 1899 are not complied in the given situation.

(d) Arun, a husband enters into a registered agreement with his wife Radha, to pay his
earnings to her. Is it a valid contract ? Will the answer be different if the husband by a
registered document, after referring to quarrels and disagreement between himself and
his wife, promises to pay his wife a sum of money for her maintenance and separate
residence.
Answer
The general rule is that an agreement made without consideration is void. But Section 25 of the
Indian Contract Act, 1872 lays down certain exceptions which make a promise without
consideration valid and binding.

Section 25(1) inter alia provides an exception to this general rule. It states that an agreement
made without consideration is void, unless it is expressed in writing and registered under the
law for the time being in force for the registration of documents, and is made on account of
natural love and affection between parties standing in a near relation to each other.

According to the case Poonoo Bibi v. FyazBuksh, (1874) 15 Bom L.R. 57, a registered
agreement between a husband and his wife to pay his earnings to her is a valid contract, as it is
in writing, is registered, is between parties standing in near relation, and is for love and
affection.

However, according to the case Rajluckhy Deb v. Bhootnath (1900) 4 C.W.N. 488, where a
husband by a registered document, after referring to quarrels and disagreement between
himself and his wife, promised to pay his wife a sum of money for her maintenance and
separate residence, it was held that the promise was unenforceable, as it was not made for love
and affection.

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 In accordance with the above cases and provision, it can be said that an agreement that is
expressed in writing and registered under the law for the time being in force for the registration
of documents, and is made on account of natural love and affection between parties standing in
a near relation to each other, is a valid contract in the given situation.

However, in the second situation, where a husband by a registered document, after referring to
quarrels and disagreement between himself and his wife, promised to pay his wife a sum of
money for her maintenance and separate residence, the promise is unenforceable.

OR
(Alternate question to Q. No. 2)

6A. Attempt the following [5 Marks Each]

(i) What principle of statutory interpretation shall be applied by the Courts when there is
conflict between General provision and Special provision ?
Answer
The Court shall apply the rule of construction that 'general provisions yield to special
provisions'. It is the duty of the Court to avoid that and, whenever it is possible to do so, the
construe provisions which appear to conflict so that they harmonize. Provisions of one Section
of a statute cannot be used to defeat those of another unless it is impossible to effect re-
conciliation.

This principle is also expressed in the Latin maxim Generalia specialibus non derogant (also
known as the rule of implied exception) meaning general things do not derogate from special
things; things general do not restrict or detract from things special; universal things do not
detract from specific things. This well-known proposition of law says that when a matter falls
under any specific provision, then it must be governed by that provision and not by the general
provision. The general provisions must admit to the specific provisions of law.

(ii) ‘No law can clothe administrative action with a complete finality even if the law says so, for
the courts always examine the ambit and even the mode of its exercise to check its
conformity with fundamental rights.’ In the light of the statement discuss the judicial
review at the stage of exercise of administrativediscretion.
Answer
The courts in India control the exercise of administrative discretion, which can be grouped
under two broad heads:
1. Authority has not exercised its discretion properly- ‘abuse of discretion’.
2. Authority is deemed not to have exercised its discretion at all- ‘non-application of mind’.

Abuse of Discretion
1. Mala fides: it means dishonest intention or corrupt motive. If the discretionary power
exercised by authority with bad faith or dishonest intention, the action is quashed by the
court. The intention may be to promote another public interest or private interest.

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 2. Irrelevant considerations: if the administrative authority takes into account factors,
circumstances or events wholly irrelevant or extraneous to the purpose mentioned in the
statute, then administrative action is vitiated / likely to be quashed by the courts.

3. Leaving out relevant considerations: The administrative authority who is required to

take into account all the relevant facts, if leaves relevant consideration, its action will be
invalid.

4. Arbitrary orders: The order made should be based on facts and cogent reasoning and not
on the whims and fancies of the adjudicatory authority.

5. Improper purpose: The discretionary power is required to be used for the purpose for
which it has been given. If it is given for one purpose and used for another purpose it will
amount to abuse of power.

6. Colourable exercise of power: Where the discretionary power is exercised by the

authority on which it has been conferred ostensibly for the purpose for which it has been
given but in reality for some other purpose, it is taken as colourable exercise of the
discretionary power and it is declared invalid.

7. Non-compliance with procedural requirements and principles of natural justice: If the

procedural requirement laid down in the statute is mandatory and it is not complied, the
exercise of power will be bad. Whether the procedural requirement is mandatory or
directory is decided by the court. Principles of natural justice are also required to be
observed.

8. Exceeding jurisdiction: The authority is required to exercise the power within the limits of
the statute. Consequently, if the authority exceeds this limit, its action will be held to be
ultra vires and, therefore, void.

Non-application of mind
1. Acting under dictation: Where the authority exercises its discretionary power under the
instructions/dictation from superior authority, in such condition in substance the power is
not exercised by it but by the other authority. Such decision or action is bad.

2. Self-restriction: The authority entrusted with discretionary power is required to exercise

it after considering the individual cases and should not impose fetters on it discretion by
adopting fixed rule of policy to be applied rigidly to all cases coming before it. Such decision
or action will be bad.

3. Acting mechanically and without due care: It will render the decision bad in law.

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(iii) ‘A custom will be valid and will have binding force only if it fulfills certain essential
conditions.’ Elucidate.
Answer
The essentials of customs to be lawfully valid and binding are:
1. Immemorial (Antiquity): A custom to be valid must be proved to be immemorial; it must
be ancient.

2. Certainty: The custom must be certain and definite, and must not be vague and ambiguous.

3. Reasonableness: A custom must be reasonable. It must be useful and convenient to the

society. A custom is unreasonable if it is opposed to the principles of justice, equity and
good conscience.
4. Compulsory Observance: A custom to be valid must have been continuously observed
without any interruption from times immemorial and it must have been regarded by those
affected by it as an obligatory or binding rule of conduct.

5. Conformity with Law and Public Morality: A custom must not be opposed to morality or
public policy nor must it conflict with statute law. If a custom is expressly forbidden by
legislation and abrogated by a statute, it is inapplicable.

6. Unanimity of Opinion: The custom must be general or universal. If practice is left to

individual choice, it cannot be termed as custom.

7. Peaceable Enjoyment: The custom must have been enjoyed peaceably without any dispute
in a law court or otherwise.

8. Consistency: There must be consistency among the customs. Custom must not come into
conflict with the other established customs.

(iv)‘In civil suits sometimes Court allows the defendants claims to set-off against the plaintiff
demand any ascertained sum of money legally recoverable by him from plaintiff.’ In light
of the statement discuss whether in India disinction between Legal and Equitable set-off
is recognized ?
Answer
Rule 6 of Order VIII of Code of Civil Procedure, 1908 deals with set-off which is a reciprocal
acquittal of debts between the plaintiff and defendant. It has the effect of extinguishing the
plaintiff’s claim to the extent of the amount claimed by the defendant as a counter claim.

In the case of Jitendra Kumar Khan and Ors. vs. The Peerless General Finance and
Investment Company Limited and Ors. (07.08.2013 - SC) : 2013 ALL SCR 3259, it has been
decided that Equitable set-off is different than the legal set-off; that it is independent of the
provisions of the Code of Civil Procedure; that the mutual debts and credits or cross-demands
must have arisen out of the same transaction or to be connected in the nature and

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 circumstances; that such a plea is raised not as a matter of right; and that it is the discretion of
the court to entertain and allow such a plea or not.

In view of the above discussion, it can be said that in India distinction between Legal and
Equitable set-off is recognised.

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 Jurisprudence, Interpretation and General Laws
June – 2024
Exam Paper
Time:- 3 Hrs [100 Marks]
1. Comment on the following [2 Marks Each]

(a) Indian Constitution is considered as federal Constitution. There is distribution of powers

between Union and States regarding enactment of Laws. Both authorities are
independent of each other.

Indian Constitution covers the legislative relationship between the Union and State. The
Union legislature, i.e., Parliament has the power to make laws for the whole of the
territory of India or any part thereof, and the state legislature have the power to make
laws for the whole or any part of the territory of the respective State. In distributing the
subject on which legislation can be made, the Indian Constitution draws three long lists
of all the conceivable legislative subjects. These lists are contained in the 7th schedule to
the Constitution. List I is named as the Union List. List II as the State List and III as the
Concurrent list. Each list contains a number of entries in which the subjects of legislation
have been separately and distinctly mentioned. Legislative function is done by the
parliament or state legislature for their respective subjects through passing the bills.
Legislature is empowered to make laws but it shall not make any law which takes away
or abridges the fundamental rights. It shall void to the extent to which it curtails any such
right. Laws which were in for before the commencement of the Constitution are void to
the extent to which the are inconsistent with the fundamental right. In reference to the
above statements answer the following questions:

(i) Rajasthan Government passed an. Act restricting the use of sound amplifiers The Act
is challenged on the ground that it dealt with a matter which fell in entry of list I
(Union list) which reads "post and telegraphs, telephones, wireless broadcasting and
other like forms of communication" therefore state cannot make law. Decide with
applicable rule.
Answer
The facts of the given situation are similar to the case of G. Chawla v. State of Rajasthan, AIR
1959 SC 544. The Rajasthan Legislature passed a law restricting the use of sound amplifiers.
The law was challenged on the ground that it dealt with a matter which fell in entry 31 of
List I which reads: “Post and telegraphs, telephones, wireless broadcasting and other like
forms of communication”, and, therefore, the State Legislature was not competent to pass it.
The Supreme Court rejected this argument on the ground that the object of the law was to
prohibit unnecessary noise affecting the health of public and not to make a law on
broadcasting, etc. Therefore, the pith and substance of the law was “public health” and not
“broadcasting”.

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 Therefore, in the given situation, the pith and substance rule can be applied. According to
this rule, where a law in reality and substance falls within an entry on which the legislature
which enacted that law is competent to legislate, then such law shall not become invalid
merely because it incidentally touches a matter outside the competence of legislature.

(ii) Explain the term "judicial review"

Answer
Judicial review is the authority of Courts to declare void the acts of the legislature and
executive if they are found in violation of provisions under Part-III of the Constitution of
India. Judicial Review is the power of the highest Court of a jurisdiction to invalidate on
Constitutional grounds, the acts of other Government agencies within that jurisdiction.

(iii) What do you understand by bill?

Answer
A Bill is a draft statute which becomes law after it is passed by both the house of parliament
or State legislature and assented to by the President or Governor. All legislative proposals
are brought before parliament or State legislature in the forms of Bills.

(iv) Procedure wise, what are the types of bills.

Answer
Procedurally, the Bills can be classified as:
1. Ordinary Bills
2. Money and Financial Bills
3. Ordinance Replacing Bill and
4. Constitution Amendment Bills.

(v) What does the word 'law' include according to Article 13 of the Indian Constitution?
Answer
The word ‘law’ according to the definition given in Article 13 of the Constitution includes -
“any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the
territory of India, the force of law.”

(b) The liability of the Government can either be contractual or tortious. The Constitution of
India allows the central and the state government to enter into contracts under Article
200 of the Constitution of India.

Article 200, (2) of the Constitution makes it clear that neither the President nor the
Governor shall be personally liable in respect of any contract or assurance made or
executed for the purposes of the Constitution or for the purposes of any enactment
relating to the Government of India. Subject to the provision of Article 299(1), the other
provisions of the general law of contract apply even to the Government contract.
According to Section 70 of the Indian Contract Act, 1872, where a person lawfully does
anything for another person or delivers anything to him such other person enjoys the

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 benefit thereof, the latter is bound to make compensation to the former in respect of or
to restore, the thing so done or delivered.

It may happen that a public servant may be negligent in exercise of his government duty.
It may be difficult to recover compensation from him. From the point of the aggrieved
person, compensation is more important than punishment.

In reference to the above statements, answer, the following questions:

(i) A contract with the Government of Union or State will be valid and binding only if
certain conditions are followed. Explain.
[3 Marks]
Answer
A contract with the Government of the Union or State will be valid and binding only if
the following conditions are followed:
1. The contract with the Government must be made in the name of the President or the
Governor, as the case may be.
2. The contract must be executed on behalf of the President or the Governor of the
State as the case may be. The word executed indicates that a contract with the
Government will be valid only when it is in writing.
3. A person duly authorised by the President or the Governor of the State, as the case
may be, must execute the contract.

(ii) State the effects of a valid contract with Government.

[2 Marks]
Answer
As soon as the contract is executed with the Government in accordance with Article 299
of the Constitution of India, the whole law of contract as contained in the Indian
Contract Act, 1872 comes into operation. In India, the remedy for the breach of a
contract with Government is simply a suit for damages.

Further, writ of mandamus can be issued for the enforcement of contractual obligations
(Gujarat State Financial Corporation v. Lotus Hotels, 1983 3 SCC 379).

(iii) Will Government be liable to pay compensation, if the requirement of Section 70

of the Indian Contract Act, 1872 are fulfilled? Explain.
[2 Marks]
Answer
Section 70 of the Indian Contract Act, 1872 enables a person who actually supplies
goods or renders some services not intending to do gratuitously, to claim compensation
from the person who enjoys the benefit of the supply made or services rendered.
Section 70 is not based on any subsisting contract between the parties but is based on
quasi-contract. If the requirements of Section 70 are fulfilled even the Government
becomes liable to pay compensation for the work actually done or services rendered by
the State.

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 (iv) Is the state vicariously liable for the wrongful acts of its servants ? Explain.
[3 Marks]
Answer
Like all other employers the State should also be made vicariously liable for the
wrongful acts of its servants. The Court in India are conscious about increasing cases of
excesses and negligence on the part of the administration resulting in the negation of
personal liberty. Hence, they are coming forward with pronouncement holding the
Government liable for damages even in those cases where the plea of sovereign function
could have negatived the governmental liability.

In view of the above, it can be said that state is also vicariously liable for the wrongful
acts of its servants.

2. Attempt the following [5 Marks Each]

(a) Water supply to A's mill was disrupted due to B's digging of his well. This resulted in the
cutting of the water supply to the A's mill, due to which it was shut down. A filed a suit for
damages against B in a court of law. Decide and give reasons for your conclusions.
Answer
The given situation comes in the bracket of Damnum Sine Injuria. Damnum means harm, loss or
damage in respect of money, comfort, health, etc. Injuria means infringement of a right
conferred by law on the plaintiff. The maxim means that in a given case, a man may have
suffered damage and yet have no action in tort, because the damage is not to an interest
protected by the law of torts. Therefore, causing damage, however substantial to another
person is not actionable in law unless there is also a violation of a legal right of the plaintiff.

In Gloucester Grammar School Case, defendant after leaving Plaintiff’s School where he worked
as a teacher, started his own school. Being a teacher of standing, many students of Plaintiff’s
school left and enrolled themselves into the defendant’s school. The plaintiff filed a suit for
monetary damages incurred by his own. The court held that the defendant is not liable because
competition is no ground of action even though monetary loss is caused.

In case of Chasemore v. Richards, 1859, water supply to Plaintiff’s mill was disrupted due to
defendant’s digging of his well. This resulted in cutting of water supply to plaintiff’s mill due to
which it was shut down. Court held defendant not liable because although monetary losses
were incurred there was no violation of legal right.

In view of the above mentioned principle and case laws, it can be said that B is not liable to pay
because although monetary might have been incurred but there was no violation of legal right.

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(b) X filed a suit to recover possession of a movable property against Y. During the hearing, X
alleged that Y may dispose of the property to his benefit. If you are a presiding officer of a
court how you will decide the case? Give reasons for your conclusions.
Answer
As the presiding officer of the court, I would carefully consider X’s suit to recover possession of
the movable property against Y, along with the allegation that Y may dispose of the property to
his benefit. In such cases, the issuance of a temporary injunction or stay order can be crucial to
prevent the alleged wrongful disposal of the property.

It is necessary to refer to the following points:

(a) The case of Dalpat Kumar and Ors. vs. Prahlad Singh and Ors. (16.12.1991 - SC) : AIR
1993 SC 276
In this case, Court held that three main requirements are to be satisfied while granting a
temporary
1. injunction:
2. There should be a Prima facie case
3. If an injunction is not granted, it would lead to irreparable loss and,
4. Balance of convenience.

It was stated by the Court that:

“Satisfaction that there is a prima facie case by itself is not sufficient to grant the injunction. The
Court further has to satisfy that non-interference by the Court would result in “irreparable
injury” to the party seeking relief and that there is no other remedy available to the party except
one to grant the injunction and he needs protection from the consequences of apprehended
injury or dispossession. The third condition also is that “the balance of convenience” must be in
favor of granting an injunction.

(b) Provision relating to Power to order interim sale

As per Rule 6 of Order XXXIX, the Court may, on the application of any party to a suit, order
the sale, by any person named in such order, and in such manner and on such terms as it
thinks fit, of any movable property, being the subject-matter of such suit, or attached before
judgment in such suit, which is subject to speedy and natural delay, or which for any other
just and sufficient cause, it may be desirable to have sold at once.

After analyzing the facts and circumstances of the case, I am likely to give necessary relief as
per the above mentioned discussion.

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(c) There were two contracts-one between the principal and contractor and another
between contractor and sub-contractor. On completition of work, the sub-contractor
demanded money for the completion of work and on non-payment filed a criminal
complaint alleging that the contractor having received the payment from the principal
had misappropriated the money. What kind of offense has been committed by the
contractor? Also, define and elucidate the essential ingredients of criminal
misappropriation of property.
Answer
Section 403 and 404 of the Indian Penal Code, 1860 (IPC) provides the provisions related to
criminal misappropriation of property. The provision relevant to the given situation is section
403. According to section 403, whoever dishonestly misappropriates or converts to his own use
any movable property, shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.

The facts of the given situation are similar to the case of U. Dhar v. State of Jharkhand, (2003) 2
SCC 219, where the Supreme Court observed that the matter was of a civil nature and the
criminal complaint was not maintainable and was liable to be quashed. The Supreme Court also
observed that money paid by the principal to the contractor was not money belonging to the
complainant, sub-contractor, hence there was no question of misappropriation.

In view of the provision and case law discussed above, it can be said that no offense has been
committed.

Essential Ingredients of Criminal Misappropriation of Property

Dishonestly is an essential ingredient of the offense of Dishonest Misappropriation of Property
and IPC provides that whoever does anything with the intention of causing wrongful gain to one
person or wrongful loss to another person, is said to do that ‘dishonestly’. Misappropriation
means the intentional, illegal use of the property or funds of another person for one’s own use
or other unauthorized purpose. There are two things necessary before an offence under section
403 can be established. Firstly, that the property must be misappropriated or converted to the
use of the accused, and, secondly, that he must misappropriate or convert it dishonestly.

3. Attempt the following [5 Marks Each]

(a) X pledges his bike to Y for 1 lakh rupees. Y unlawfully sold the bike to Z before the lapse
of the loan period. X sucs Z for possession of his bike, without paying the loan amount
even after expiring the time fixed for repayment of the loan. Decide and give reasons.
Also, enumerate the provisions related to the recovery of specific movable property.
Answer
Sections 7 and 8 of the Specific Relief Act, 1963 provide the provisions relating to recovery of
specific movable properties.

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 As per Section 7, a person entitled to the possession of specific movable property may recover it
in the manner provided by the Code of Civil Procedure, 1908.

Explanation 1. – A trustee may sue under this section for the possession of movable property
to the beneficial interest in which the person for whom he is trustee is entitled.

Explanation 2. – A special or temporary right to the present possession of movable property is

sufficient to support a suit under this section.

Section 8 provides that any person having the possession or control of a particular article of
movable property, of which he is not the owner, may be compelled specifically to deliver it to
the person entitled to its immediate possession, in any of the following cases: -
(a) when the thing claimed is held by the defendant as the agent or trustee of the plaintiff;
(b) when compensation in money would not afford the plaintiff adequate relief for the loss of
the thing claimed;
(c) when it would be extremely difficult to ascertain the actual damage caused by its loss;
(d) when the possession of the thing claimed has been wrongfully transferred from the
plaintiff.

Explanation - Unless and until the contrary is proved, the court shall, in respect of any article of
movable property claimed under clause (b) or clause (c) above, presume-
that compensation in money would not afford the plaintiff adequate relief for the loss of the
thing claimed, or, as the case may be;
that it would be extremely difficult to ascertain the actual damage caused by its loss;

In view of above mentioned provisions, it can be said that “X” has not repaid the loan, therefore,
he is not entitled for the possession.

(b) L, a singer, agreed to sing at M's theatre for a certain period and not to sing anywhere
else during that period. Afterward, L entered into a contract to sing at another theatre
and refused to perform the contract with M. M sued for specific performance of the
contract and prohibitory injunction from singing in another theatre. Will M succeed?
Decide and give your reasons to the conclusions.
Answer
Section 14 of the Specific Relief Act, 1963 (SRA) lays down the provisions relating to contracts
which cannot be specifically enforced. The following contracts cannot be specifically enforced,
namely:-
(a) where a party to the contract has obtained substituted performance of contract in
accordance with the provisions of section 20;
(b) a contract, the performance of which involves the performance of a continuous duty which
the court cannot supervise;
(c) a contract that is so dependent on the personal qualifications of the parties that the court
cannot enforce specific performance of its material terms; and
(d) a contract that is in its nature determinable.

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 Injunction to perform negative agreement
Section 42 of SRA provides that notwithstanding anything contained in section 41(e), where a
contract comprises an affirmative agreement to do a certain act, coupled with a negative
agreement, express or implied, not to do a certain act, the circumstance that the court is unable
to compel specific performance of the affirmative agreement shall not preclude it from granting
an injunction to perform the negative agreement. It may be noted that the plaintiff has not failed
to perform the contract so far as it is binding on him.

There are two questions involved in the problem in given situation -

1. Can M succeed for specific performance of the Contract?
2. Can M succeed in getting injunctions restraining L to sing at any theatre?

There are two parts to the agreement. Positive one on the part of L to perform at M’s theatre
and the negative one on the part of L not to perform at any theatre other than that of M.

The court may in terms of section 42, prevent the breach of the negative part of the agreement
i.e. not to sing at any other theatre by issuing a prohibitory injunction. However, obtaining
specific performance of contract may not be possible due to section 14.

(c) A buys land for Rs. 2.50 Crore from B in Delhi. A and B executed the sale deed but didn't
register it from the Sub-Registrar. After entering into the sale deed, it came into
knowledge of A that some dispute was pending pertaining to the land. Can A file a suit
before the court of law? Give reasons.
Answer
Consequences of non-registration of documents required to be registered compulsorily
Section 49 of the Registration Act, 1908 provides that no document required by Section 17 or
by any provision of the Transfer of Property Act, 1882 to be registered shall:
(a) affect any immovable property comprised therein; or
(b) confer any power to adopt; or
(c) be received as evidence of any transaction affecting such property or conferring such
power, unless it has been registered.

Section 49 is mandatory, and a document which is required to be registered cannot be received

in evidence as affecting immovable property. (Mulla, pages 223 to 228)

An unregistered document that comes within Section 17 cannot be used in any legal proceeding
to bring out indirectly the effect which it would have if registered.

In the given situation, A buys land for Rs. 2.50 Crore from B in Delhi. A and B executed the sale
deed but did not register it from the Sub-Registrar. After entering into the sale deed, it came
into knowledge of A that some dispute was pending in the land. Now, A cannot knock the door
of the court as the sale deed is not registered. This is because such a document is dealt with by
Section 17 which contemplates mandatory registration. A also cannot give an excuse that he
was unaware of the law because ignorance of the law is no excuse.

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 However, after payment of the duty he may be allowed subject to the compliance of necessary
provisions.

Also as provided in Section 49 of the Registration Act, 1908, proviso, an unregistered document
affecting immovable property and required by this Act or the Transfer of property Act, 1882 to
be registered may be received as evidence of a contract in a suit for specific performance or as
evidence of part performance of a contract for the purposes of Section 53A of the Transfer of
Property Act, 1882 or as evidence of any collateral transaction not to be effective by registered
instrument. All that the proviso to Section 49 permits is that in a suit for specific performance
an unregistered document affecting immovable property may be given in evidence. The
purpose is that the document which has not conveyed or passed title may still be used as
evidence of the terms.

Attempt all parts of either Q. No. 4 or Q. No. 4A

4. Attempt the following [5 Marks Each]

(a) Express mention of one thing implies the exclusion of another. Discuss under the
interpretation of statutes.
Answer
Expressio Unis Est Exclusio Alterius
The rule means that express mention of one thing implies the exclusion of another. At the same
time, general words in a statute must receive a general construction, unless there is in the
statute some ground for limiting and restraining their meaning by reasonable construction;
because many things are put into a statute ex abundanti cautela, and it is not to be assumed that
anything not specifically included is for that reason alone excluded from the protection of the
statute. The method of construction according to this maxim must be carefully watched. The
failure to make the ‘expressio’ complete may arise from accident. Similarly, the ‘exclusio’ is
often the result of inadvertence or accident because it never struck the draftsman that the thing
supposed to be excluded requires specific mention. The maxim ought not to be applied when its
application leads to inconsistency or injustice.

Similarly, it cannot be applied when the language of the Statute is plain with clear meaning.
(Parbhani Transport Co-operative Society Ltd. v. Regional Transport Authority, AIR 1960 SC
801)

(b) When the date was not fixed by the parties for the performance of a specific act, then how the
court will compute the limitation period? When does the limitation period start for filing a suit?
Decide with the help of the case laws.
Answer
The facts of the given situation are similar to the facts in the case of Valliammai vs. K.P. Murali
and Others decided by Supreme Court on 11th September, 2023.

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 In this case the Supreme Court has referred to the provisions of Article 54 of Part II of the
Schedule to the Limitation Act, 1963 which stipulates the limitation period for filing a suit for
specific performance as three years from the date fixed for performance, and in alternative
when no date is fixed, three years from the date when the plaintiff has notice that performance
has been refused.

In this case, the Supreme Court referred to the case earlier decided in Pachanan Dhara and
Others v. Monmatha Nath Maity (2006) 5 SCC 340. The Supreme Court in the referred case had
held that for determining the applicability of the first or the second part, the court will have to
see whether any time was fixed for the performance of the agreement to sell and if so fixed,
whether the suit was filed beyond the prescribed period unless a case for the extension of time
or performance was pleaded or established. However, when no time is fixed for performance,
the court will have to determine the date on which the plaintiff had notice of refusal on the part
of the defendant to perform the contract.

In view of the above mentioned case, it can be said that the limitation period starts when the
plaintiff has notice that performance has been refused. The court will have to determine the
date on which the plaintiff had notice of refusal on the part of the defendant to perform the
contract.

(c) The appellant entered into an agreement with the respondent for the sale of 40,000 WMT (Wet
Metric Tonne) of Iron Ore Pellets. Dispute arose between the parties regarding the price and
payment terms and the appellant did not deliver the goods to the respondent. The respondent
claimed for damages and the appellant denied any liability. Clause 18 of the agreement between
the parties contains an arbitration clause. The respondent invoked the arbitration clause and the
appellant did not agree for the appointment of the arbitrator. Hence, the respondent filed a
petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 before the Madras High
Court. The Madras High Court vide impugned order appointed a former judge of the Madras High
Court as the sole arbitrator. The appellant preferred the appeal to the Supreme Court. Decide
whether the Madras High Court has justified in appointing the arbitrator. Give your reasons.
Answer
As per Section 20(1) of the Arbitration and Conciliation Act, 1996 (AC Act) the parties are free
to agree on the place of arbitration and sub-section (2) states that if they fail to reach an
agreement, the place of arbitration is determined by the arbitral tribunal, having regard to the
circumstances of the case, including the convenience of the parties. Section 20(3) of AC Act
introduces an option by providing that the arbitrator/tribunal may, unless otherwise agreed by
the parties, may meet at any place it considers appropriate for consultation among its members,
for hearing witnesses, experts or the parties, or for inspection of documents, goods or other
property.

Parties are free to agree on the place of arbitration. Party autonomy has to be construed in the
context of parties choosing a court which has jurisdiction out of two or more competent courts
having jurisdiction.

The case is similar to the Supreme Court judgement in Brahmani River Pellets Limited
(Appellant) vs. Kamachi Industries Limited (Respondent).

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 In this case, the appellant contested the petition challenging the jurisdiction of the Madras High
Court on the ground that the parties have agreed that the Seat of arbitration be Bhubaneswar.

The Hon’ble supreme court observed that Section 2(1) (e) of the Arbitration and Conciliation
Act, 1996 (the Act) defines the “Court” with reference to the term “subject-matter of the suit”.
As per Section 2(1) (e) of the Act, if the “subject-matter of the suit” is situated within the
arbitral jurisdiction of two or more courts, the parties can agree to confine the jurisdiction in
one of the competent courts. In para (96) of BALCO, the Supreme Court held that the term
“subject matter” in Section 2(1) (e) of the Act is to identify the court having supervisory control
over the arbitral proceedings. As per Section 20 of the Act, parties are free to agree on the place
of arbitration. Party autonomy has to be construed in the context of parties choosing a court
that has jurisdiction out of two or more competent courts having jurisdiction. The Supreme
Court observed that when the parties agreed to have the “venue” of arbitration at Bhubaneswar,
the Madras High Court erred in assuming the jurisdiction under Section 11(6) of the Act. Since
only the Orissa High Court will have the jurisdiction to entertain the petition filed under Section
11(6) of the Act. The impugned order was liable to be set aside.

Therefore, the Madras High Court was not justified in appointing the arbitrator.

Alternate Answer
According to section 11(6) of Arbitration and Conciliation Act, 1996, where, under an
appointment procedure agreed upon by the parties,–
(a) a party fails to act as required under that procedure; or
(b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them
under that procedure; or
(c) a person, including an institution, fails to perform any function entrusted to him or it under
that procedure,

a party may request the Supreme Court or, as the case may be, the High Court or any person or
institution designated by such Court to take the necessary measure, unless the agreement on
the appointment procedure provides other means for securing the appointment.

In view of the above mentioned provision, Madras High Court can appoint Arbitrator if the
matter is under its Jurisdiction under section 11 of the Arbitration and Conciliation Act, 1996.

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 OR
(Alternate question to Q. No. 2)

4A. Explain the following [5 Marks Each]

(i) Jeremy Bentham claimed that nature has placed the man under the command of two
sovereigns. He also stated that every law may be considered in eight different
respects. Elucidate the statements.
Answer
Jeremy Bentham was of the initial contributors on the function that laws should perform in
a society. He claimed that nature has placed man under the command of two sovereigns-
pain and pleasure. ‘Pleasure’ in Bentham’s theory has a somewhat large signification,
including altruistic and obligatory conduct, the ‘principle of benevolence’; while his idea of
‘interest’ was anything promoting pleasure. The function of laws should be to bring about
the maximum happiness of each individual for the happiness of each will result in the
happiness of all. The justification for having laws is that they are an important means of
ensuring happiness of the members of community generally. Hence, the sovereign power of
making laws should be wielded, not to guarantee the selfish desires of individuals, but
consciously to secure the common good.

Bentham said that every law may be considered in eight different respects. These are
as under:
1. Source: The source of a law is the will of the sovereign, who may conceive laws which
he personally issues, or adopt laws previously issued by sovereigns or subordinate
authorities, or he may adopt laws to be issued in the future by subordinate authorities.
Sovereign according to Bentham is any person or assemblage of person to whose will a
whole political community is supposed to be in a disposition to pay obedience, and then
in preference to the will of any other person.
2. Subjects: These may be persons or things. Each of these may be active or passive
subjects, i.e., the agent with which an act commences or terminates.
3. Objects: The goals of a given law are its objects.
4. Extent: Direct extent means that law covers a portion of land on which acts have their
termination; indirect extent refers to the relation of an actor to a thing.
5. Aspects: Every law has ‘directive’ and a ‘sanctional’ part. The former concerns the
aspects of the sovereign will towards an act-situation and the latter concerns the force
of a law. The four aspects of the sovereign will are command, prohibition, non-
prohibition and non- command and the whole range of laws are covered under it. These
four aspects are related to each other by opposition and concomitancy.
6. Force: The motivation to obey a law is generated by the force behind the law.
7. Remedial appendage: These are a set of subsidiary laws addressed to the judges
through which the judges cure the evil (compensation), stop the evil, or prevent future
evil.
8. Expression: A law, in the ultimate, is an expression of a sovereign’s will. The connection
with will raises the problem of discovering the will from the expression.

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 Having listed the eight different respects through which a law can be considered, Bentham
went on to analyse the ‘completeness’ of law in jurisprudential sense. He said that a
complete law would have the features of integrality as well as unity. Integrality means that a
law should be complete in expression, connection and design. A law is complete in
expression when the actual will of the legislation has been completely expressed. A law is
complete when various parts of it dealing with various aspects are well co-ordinated. If a
law does not cover a specific situation that it might have wanted to cover while being
enacted, it is incomplete in design. According to Bentham the unity of a law would depend
upon the unity of the species of the act which is the object of the law.

(ii) In India a statute or law is valid because it derives its legal authority from being duly
passed by the Parliament and receiving the accent of the President, the Parliament
and the President, derive their authority from a norm i.e., the Constitution. From
where does the Constitution derive its validity? Explain. Which theory of law is based
on a paramedical structure of hierarchy of norms that derive their validity from the
basic norm? Elucidate.
Answer
In India a statute or law is valid because it derives its legal authority from being duly passed
by the Parliament and receiving the assent of the President, the Parliament, and the
President, derive their authority from a norm i.e., the Constitution. As to the question from
where the Constitution derives its validity, there is no answer and, therefore, it is the
Grundnorm, according to Kelsen’s conception of pure theory of law. Grundnorms are
generally followed by the Superior Norms. Superior norms are laws that govern the
subordinate laws. They are inferior to Grundnorm but superior to subordinate laws.
Whereas Subordinate norms are derived or made to assist the superior norm. These norms
derive their justification from superior norms.

Kelsen’s pure theory of law is based on a pyramidical structure of hierarchy of norms which
derive their validity from the basic norm.

Kelsen described the law as a “normative science’ as distinguished from natural sciences
which are based on cause and effect, such as the law of gravitation. The laws of natural
science are capable of being accurately described, determined, and discovered whereas the
science of law is knowledge of what law ought to be. Like Austin, Kelsen also considered
sanction as an essential element of law but he preferred to call it ‘norm’. According to
Kelsen, ‘law is a primary norm which stipulates sanction’.

According to Kelsen, ‘norm (sanction) rules forbidding or prescribing a certain behaviour’.

He saw legal order as the hierarchy of norms having sanctions, and jurisprudence was the
study of these norms which comprised legal order. Kelsen distinguished moral norms from
legal norms and said that though moral norms are ‘ought’ prepositions, a violation of it does
not have any penal fallout. The ‘ought’ in the legal norm refers to the sanction to be applied
for violation of law.

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 According to Kelsen, we attach legal-normative meaning to certain actions and not to others
depending on whether that event is accorded any legal-normative by any other legal norm.
This second norm gains its validity from some other norm that is placed above it. The
successive authorizations come to an end at the highest possible norm which was termed by
Kelsen as ‘Grundnorm’.

Grundnorm or basic norm determines the content and gives validity to other norms derived
from it. Under Kelsen’s pure theory, the grundnorm does not derive its validity from any
other norm and its validity must be presupposed. In his view, the basic norm is the result of
social, economic, political and other conditions and it is supposed to be valid by itself.

(iii) "The Law of limitation bars the remedy in a Court of law only when the period of
limitation has expired, but it does not extinguish the right." Elucidate the statement.
Whether court can Suo moto take note of the question of limitation ?
Answer
The law relating to limitation is incorporated in the Limitation Act of 1963(the Act), which
prescribes different periods of limitation for suits, petitions or applications. The Act applies
to all civil proceedings and some special criminal proceedings which can be taken in a Court
of law unless its application is excluded by any enactment.

The Law of limitation indeed bars the remedy in a Court of law only when the period of
limitation has expired, but it does not extinguish the right that it cannot be enforced by
judicial process (Bombay Dyeing & Mfg. Co. Ltd. v. State of Bombay, AIR 1958 SC 328) Thus,
if a claim is satisfied outside the Court of law after the expiry of period of limitation, that is
not illegal.

Section 3 of the Act provides that any suit, appeal or application if made beyond the
prescribed period of limitation, it is the duty of the Court not to proceed with such suits
irrespective of the fact whether the plea of limitation has been set up in defense or not. The
provisions of Section 3 are mandatory. The Court can suo motu take note of the question of
limitation. The question whether a suit is barred by limitation should be decided on the
facts as they stood on the date of presentation of the plaint. It is a vital section upon which
the whole limitation Act depends for its efficacy. The effect of Section 3 is not to deprive the
Court of its jurisdiction. Therefore, the decision of a Court allowing a suit which had been
instituted after the period prescribed is not vitiated for want of jurisdiction. A decree
passed in a time barred suit is not a nullity.

In the case of Noharlal Verma vs. District Cooperative Central Bank Limited, Jagdalpur, (SC),
2008, the Supreme Court observed that, if the statute stipulates a particular period of
limitation, no concession or order would make an application barred by time to be within
the limitation and the authority had no jurisdiction to consider such application on merits.

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5. Attempt the following [5 Marks Each]

(a) Enumerate the distinction between the Cheque and the Bill of Exchange.
Answer
As a general rule, the provisions applicable to bills payable on demand apply to cheques.
However, there are few distinctions which are as under:
(a) A cheque is a bill of exchange and always drawn on a banker, while a bill may be drawn on
any one, including banker.
(b) A cheque can only be drawn payable on demand, a bill may be drawn payable on demand,
(c) or on the expiry of a specified period after sight or date.
(d) A bill payable after sight must be accepted before payment can be demanded, a cheque
does not require acceptance and is intended for immediate payment.
(e) A grace of 3 days is allowed in the case of time bills, while no grace is given in the case of a
cheque, for payment.
(f) The drawer of a bill is discharged, if it is not presented for payment, but the drawer of a
cheque is discharged only if he suffers any damage by delay in presentment for payment.
(g) Notice of the dishonour of a bill is necessary, but not in the case of a cheque.
(h) The cheque being a revocable mandate, the authority may be revoked by countermanding
payment, and is determined by notice of the customer’s death or insolvency. This is not so
in the case of bill.
(i) A cheque may be crossed, but not a bill.

(b) Define digital signature and electronic signature certificate. Élucidate the procedure for
obtaining the electronic signature certificate.
Answer
“Digital signature” means authentication of any electronic record by a subscriber by means of
an electronic method or procedure in accordance with the provisions of Section 3 of the
Information and Technology Act 2000. [Section 2(1) (p)]

Electronic Signature Certificate” means an Electronic Signature Certificate issued under section
35 and includes Digital Signature Certificate. [Section 2(1) (tb)]

Electronic Signature Certificates

Sections 35-39 of the Information and Technology Act deal with Electronic Signature
Certificates. As per section 35 of the Act, certifying authority to issue electronic signature
Certificates.

Procedure for obtaining an electronic signature Certificate

Following is the procedure for obtaining an electronic signature Certificate:
1. Any person may make an application in the prescribed form to the Certifying Authority for
the issue of an electronic signature Certificate in such form as may be prescribed by the
Central Government.
2. Every such application shall be accompanied by prescribed fees.

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 3. Every such application shall be accompanied by a certification practice statement or where
there is no such statement, a statement containing such particulars, as may be specified by
regulations.
4. On receipt of an application, the Certifying Authority may, after consideration of the
certification practice statement or the other statement and after making such enquiries as
it may deem fit, grant the electronic signature Certificate or for reasons to be recorded in
writing, reject the application. It may be noted that no application shall be rejected unless
the applicant has been given a reasonable opportunity of showing cause against the
proposed rejection.

(c) In the case Reliance Petrochemicals Limited V. Indian Express Newspapers, 1989 AIR 90
the Supreme Court observed that Article 21 includes the right to know. The Supreme
Court held that the right to know is a necessary ingredient of participatory democracy.
Elucidate the statement and explain the objectives of the Right to Information Act. 2005.
Answer
In the case of Reliance Petrochemicals Limited v. Indian Express Newspapers, 1989 AIR 90 the
Supreme Court read into Article 21 the right to know. In this case, the Supreme Court held that
right to know is a necessary ingredient of participatory democracy. In view of transnational
developments when distances are shrinking, international communities are coming together for
cooperation in various spheres and they are moving towards a global perspective in various
fields including Human Rights, the expression “liberty” must receive an expanded meaning. The
expression cannot be limited to the mere absence of bodily restraint. It is wide enough to
expand to full range of rights including the right to hold a particular opinion and the right to
sustain and nurture that opinion. For sustaining and nurturing that opinion it becomes
necessary to receive information. Article 21 of the Constitution of India confers on all persons a
right to know which includes a right to receive information.

It may be pointed out that the right to impart and receive information is a species of the right to
freedom of speech and expression. Article 19(1)(a) of Constitution of India guarantees to all
citizens freedom of speech and expression. At the same time, Article 19(2) permits the State to
make any law in so far as such law imposes reasonable restrictions on the exercise of the rights
conferred by Article 19(1)(a) of the Constitution in the interest of sovereignty and integrity of
India, the security of the State, friendly relations with foreign States, public order, decency,
morality, contempt of court, defamation and incitement of offence.

Thus, a citizen has a right to receive information and that right is derived from the concept of
freedom of speech and expression comprised in Article 19(1) (a). The State is not only under an
obligation to respect the Fundamental Rights of the citizens, but it is equally under an obligation
to ensure conditions under which these rights can meaningfully and effectively be enjoyed by
one and all.

Right to freedom of speech and expression in Article 19 (1) (a) carries with it the right to
propagate and circulate one’s views and opinions subject to reasonable restrictions as
mentioned above. The prerequisite for enjoying this right is knowledge and information.
Information adds something “new to our awareness and removes vagueness of our ideas”.

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 The Right to Information Act considered as watershed legislation, is the most significant
milestone in the history of the Right to Information movement in India allowing transparency,
autonomy, and access to accountability.

Objectives of the Right to Information Act, 2005

The Right to Information Act, 2005(the Act/RTI Act) confers on all citizens a right to
information. The Act provides for setting out the practical regime of right to information for
citizens to secure access to information held by public authorities to promote transparency and
accountability in the working of every public authority.

In the case of Anjali Bhardwaj and Others Vs. Union of India and Others in Writ Petition (Civil)
No. 436 of 2018 Judgement dated February 15, 2019, the Hon’ble Supreme Court of India in
Paragraph 18, 19 and 68 observed that there is a definite link between right to information and
good governance. In fact, the RTI Act itself lays emphasis on good governance and recognizes
that it is one of the objectives which the said Act seeks to achieve. The RTI Act would reveal that
four major elements/ objectives required to ensure good governance are:
1. greater transparency in the functioning of public authorities;
2. informed citizenry for promotion of partnership between citizens and the Government in
the decision-making process;
3. improvement in accountability and performance of the Government; and
4. reduction in corruption in the Government departments.

The right to information, therefore, is not only a constitutional right of the citizens but there is
now a legislation in the form of RTI Act which provides a legal regime for people to exercise
their fundamental right to information and to access information from public authorities. The
very preamble of the Act captures the importance of this democratic right which reads as
“democracy requires an informed citizenry and transparency of information which are vital to
its functioning and also to contain corruption and to hold Governments and their
instrumentalities accountable to the governed.”

This Act is enacted not only to sub-serve and ensure freedom of speech. On proper
implementation, it has the potential to bring about good governance which is an integral part of
any vibrant democracy. Attaining good governance is also one of the visions of the Constitution.

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 Attempt all parts of either Q. No. 6 or Q. No. 6A

6. Attempt the following [5 Marks Each]

(a) A and B are litigating in a Court of law over property X and during the pendency of the
suit, A transfers the property X to C. The suit ends in B's favour. Decide whether C can
claim property from B. Give reasons for your answer.
Answer
The case is related to the doctrine of Lis pendens [Section 52 of the Transfer of Property Act,
1882(T.P. Act)]. Lis means dispute, Lis pendens means a pending suit, action, petition, or the
like. Section 52 of the T.P. Act incorporates the doctrine of Lis pendens. It states that during the
pendency of a suit in a Court of Law, property that is subject to litigation cannot be transferred.

Essential requirements:
To constitute a Lis pendens, the following elements must be present-
1. There must be a suit or proceeding in a court of competent jurisdiction.
2. The suit or proceeding must not be collusive.
3. The litigation must be one in which the right to immovable property is directly and
specifically in question.
4. There must be a transfer of or otherwise dealing with the property in dispute by any party
to the litigation.
5. Such transfer must effect the rights of the other party that may ultimately accrue under the
terms of the decree or order.

The rule is based on the doctrine of expediency i.e., the necessity for final adjudication. A plea of
lis pendens will be allowed to be raised even though the point is not taken in the pleadings or
raised as an issue.

When an application to sue in forma pauperis is admitted, the suit is pending from the time of
presentation of the application to the Court but not if it is rejected.

A suit in foreign Court cannot operate as lis pendens. The doctrine of lis pendens does not apply
to moveables. It is the essence of the rule that a right to immoveable property is directly and
specifically in question in the suit. The doctrine is not applicable in favour of a third-party.

Effect
If the parties to the litigation, are completely prevented from transferring the property in
litigation, it would cause unnecessary delay and hardship, as they would have to wait till the
final disposal of the case. So, Section 53 creates a limitation over the transfer by making it
subject to the result of the litigation. The effect of this doctrine is not to invalidate or avoid the
transfer, or to prevent the vesting of title in the transfer, but to make it subject to the decision of

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 the case, and the rule would operate even if the transferee pendente lite had no notice of the
pending suit or proceeding at the time of the transfer.

In the given situation, A and B are litigating in a Court of law over property X and during the
pendency of the suit A transfers the property X to C. The suit ends in B’s favour.

Here C who obtained the property during the time of litigation cannot claim the property. He is
bound by the decree of the Court wherein B has been given the property. Section 52 lays down
the Indian rule of Lis pendens being the legislative expression of the Maxim- “ut lite pendente
nihil innovetur” ‘During litigation nothing new should be introduced’.

(b) A bill is endorsed, "Pay A or order". A endorses it in blank, and it comes into the hands of
B, who simply delivers it to C, C forges B's endorsement and transfers it to D. Whether D
can claim payment? Decide while giving reasons for your answer.
Answer
Forged Endorsement
The case of a forged endorsement is worth special notice. If an instrument is endorsed in full, it
cannot be negotiated except by an endorsement signed by the person to whom or to whose
order the instrument is payable, for the endorsee obtains title only through his endorsement.
Thus, if an instrument be negotiated by means of a forged endorsement, the endorsee acquires
no title even though he be a purchaser for value and in good faith, for the endorsement is a
nullity. Forgery conveys no title. But where the instrument is a bearer instrument or has been
endorsed in blank, it can be negotiated by mere delivery, and the holder derives his title
independent of the forged endorsement and can claim the amount from any of the parties to the
instrument.

Liability of Acceptor of Forged Endorsement (Section 41 of the Negotiable Instrument

Act, 1881)
An acceptor of a bill of exchange already endorsed is not relieved from liability by reason that
such endorsement is forged if he knew or had reason to believe the endorsement to be forged
when he accepted the bill.

In the present case D, as the holder does not derive his title through the forged endorsement of
B, but through the genuine endorsement of A and can claim payment from any of the parties to
the instrument in spite of the intervening forged endorsement.

(c) A undertook to sell a plot of land to B but before the plot could be developed, war broke out
and the land was temporarily requisitioned by the Government. A offered to return earnest
money to B in cancellation of the contract. B did not accept and sued A for specific
performance. A pleaded discharge by frustration. Decide and provide for your conclusions.
Answer
Discharge by Impossibility or Frustration (Section 56 of the Indian Contract Act, 1872).
A contract that is entered into to perform something that is clearly impossible is void. For
instance,

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 A agrees with B to discover treasure by magic. The agreement is void by virtue of Section 56
para 1 which lays down the principle that an agreement to do an act impossible in itself is void.

Sometimes subsequent impossibility (i.e. where the impossibility supervenes after the contract
has been made) renders the performance of a contract unlawful and stands discharged; as for
example, where a singer contracts to sing and becomes too ill to do so, the contract becomes
void. In this connection, para 2 of Section 56 provides that a contract to do an act, which after
the contract is made, becomes impossible or by reason of some event which the promisor could
not prevent, unlawful, becomes void when the act becomes impossible or unlawful.

If the impossibility is not obvious and the promisor alone knows of the impossibility or illegally
then existing or the promisor might have known as such after using reasonable diligence, such
promisor is bound to compensate the promisee for any loss he may suffer through the non-
performance of the promise inspite of the agreement being void ab-initio (Section 56, para 3).

Cases in which there is no supervening impossibility

In the following cases contracts are not discharged on the ground of supervening impossibility-
(a) Difficulty of performance: The mere fact that performance is more difficult or expensive
than the parties anticipated does not discharge the duty to perform.
(b) Commercial impossibilities do not discharge the contract. A contract is not discharged
(c) merely because the expectation of higher profits is not realised.
(d) Strikes, lockouts and civil disturbances like riots do not terminate contracts unless there is
a clause in the contract providing for non-performance in such cases. Supervising
impossibility or illegality is known as frustration under English Law.

The facts of the given situation are similar to that of case of Satyabarta Ghose v. Mugnuram
A.I.R. 1954 S.C. 44. In this case, the Supreme Court interpreted the term impossible appearing
in second paragraph of Section 56. The Court observed that the word impossible has not been
used here in the sense of physical or literal impossibility. The performance of an act may not be
literally impossible but it may be impracticable and useless from the point of view of the object
and purpose which the parties had in view; and if an untoward event or change of
circumstances totally upsets the very foundation upon which the parties rested their bargain; it
can very well be said that the promisor found it impossible to do the act which he promised to
do. In this case, A undertook to sell a plot of land to B but before the plot could be developed,
war broke out and the land was temporarily requisitioned by the Government. A offered to
return earnest money to B in cancellation of the contract. B did not accept and sued A for
specific performance. A pleaded discharge by frustration. The Court held that Section 56 is not
applicable on the ground that the requisition was of a temporary nature and there was no time
limit within which A was obliged to perform the contract. The impossibility was not of such a
nature which would strike at the root of the contract.

In view of the above discussion, it can be said that the doctrine of frustration will not be
applicable in this case.

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(d) A goes to B's shop and purchases silk saree thinking that it is made of Banarsi silk. The
shopkeeper knows that A's thinking is wrong. He however does not correct A's impression.
Later on, when A discovers that the saree is not made of Banarsi silk he wants to avoid the
contract. Would A succeed? Give reasons.
Answer
Doctrine of Caveat Emptor
“Caveat emptor” is a Latin word that means “let the buyer beware”.
This principle states that it is for the buyer to satisfy himself that the goods which he is
purchasing are of the quality which he requires. If he buys goods for a particular purpose, he
must satisfy himself that they are fit for that purpose. The doctrine of caveat emptor is
embodied in Section 16 of the Sale of Goods Act, 1930 which states that “subject to the
provisions of this Act and of any other law for the time being in force, there is no implied
warranty or condition as to the quality or fitness for any particular purpose of goods supplied
under a contract of sale”. In simple words, it is not the seller’s duty to give to the buyer the
goods which are fit for a suitable purpose of the buyer. If he makes a wrong selection, he cannot
blame the seller if the goods turn out to be defective or do not serve his purpose.

The principle was applied in the case of Ward vs. Hobbs, (1878) 4 A.C. 13, where certain pigs
were sold by auction and no warranty was given by seller in respect of any fault or error of
description. The buyer paid the price for healthy pigs. But they were ill and all but one died of
typhoid fever. They also infected some of the buyer’s own pigs. It was held that there was no
implied condition or warranty that the pigs were of good health. It was the buyer’s duty to
satisfy himself regarding the health of the pigs. Generally, it is no part of the seller’s duty in a
contract of sale of goods to give to the buyer an article suitable for a particular purpose, or of a
particular quality. Also, the seller is under no obligation to point out the defects in the goods. It
is the duty of the buyer to thoroughly examine the goods or to make known to the seller the
purpose for which goods are required before he buys. If he makes the wrong choice, he cannot
blame the seller.

In the given situation, A himself has made the selection without depending upon the skills and
judgment of the seller. Therefore, A cannot avoid the contract.

OR
(Alternate question to Q. No. 2)

6A. Attempt the following [5 Marks Each]

(i) Elaborate the provisions of Section 32 of Arbitration and Conciliation Act, 1996
Answer
As per Section 32(1) of the Arbitration and Conciliation Act, 1996 (the Act) the arbitral
proceeding shall be terminated by the final arbitral award or by an order of the arbitral
tribunal under sub- section (2).

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 Under Section 32(2) of the Act, the arbitral tribunal shall issue an order for the termination
of the arbitral proceedings where –
1. The claimant withdraws his claim, unless the respondent objects to the order and the
arbitral tribunal recognises a legitimate interest on his part in, obtaining a final
settlement of the dispute,
2. The parties agree on the termination of the proceeding, or
3. The arbitral tribunal finds that the continuation of the proceedings has for any other
reason become unnecessary or impossible.

Section 32(3) of the Act says that the mandate of the arbitral tribunal terminates with the
termination of the arbitral proceedings. However, this is subject to the provisions of Section
33 and 34(4) of the Act.

(ii) What is the extent of liability of instruments to stamp duty where several instruments
are executed in a single transaction? Explain.
Answer
Section 4 of the Indian Stamp Act, 1899 provides that where, in the case of any sale,
mortgage or settlement, several instruments are employed for completing the transaction,
the principal instrument only shall be chargeable with the duty prescribed, for the
conveyance, mortgage or settlement, and each of the other instruments shall be chargeable
with a duty of one rupee instead of the duty (if any) prescribed.

The parties may determine for themselves which of the instrument so employed shall, for
the purposes of section 4(1), be deemed to be the principal instrument. Provided that the
duty chargeable on the instrument so determined shall be the highest duty which would be
chargeable in respect of any of the said instruments employed.

However, notwithstanding anything contained in sub-sections (1) and (2), in the case of any
issue, sale or transfer of securities, the instrument on which stamp-duty is chargeable under
section 9A shall be the principal instrument for the purpose of this section and no stamp-
duty shall be charged on any other instruments relating to any such transaction.

(iii) What are various types of mediation and enumerate the distinction between
Arbitration and Mediation.
Answer
Types of Mediation
1. Court-Referred Mediation - It applies to cases pending in Court and which the Court
would refer for mediation under Section 89 of the Code of Civil Procedure, 1908. The
courts have mediation centres where cases are referred, and following a preliminary
investigation, the cases are assigned to skilled and qualified mediators from the
Mediation Centres’ Panel of Mediators.

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 Court Annexed Mediation - In Court- Annexed Mediation the mediation services are
provided by the court as a part and parcel of the same judicial system as against Court-
Referred Mediation, wherein the court merely refers the matter to a mediator.

2. Statutory/Mandatory Mediation - Some disputes, like those involving labour and

family laws, are required by law to go through the mediation procedure. Mandatory
mediation simply refers to the act of attempting mediation rather than requiring parties
to resolve their problems through mediation.
3. Private Mediation - In private mediation, qualified mediators offer their services on a
private, fee-for-service basis to the Court, to members of the public, to members of the
commercial sector, and also to the governmental sector to resolve disputes through
mediation. Private mediation can be used in connection with disputes pending in Court
and pre-litigation disputes.
4. Online Mediation - Online mediation including pre-litigation mediation may be
conducted at any stage of mediation, with the written consent of the parties including by
the use of electronic form or computer networks.

Distinction between Arbitration and Mediation

1. Mediation is when a neutral third party aims to assist the parties in arriving at a
mutually agreeable solution whereas arbitration is like litigation which is outside the
court and which results in an award like an order.
2. Mediation is more collaborative; arbitration is more adversarial.
3. The process of mediation is more informal than that of arbitration.
4. The outcome in mediation is controlled by the parties whereas in arbitration it is
controlled by the arbitrator.
5. In mediation, the dispute may or may not be resolved whereas in arbitration it is always
settled in either party’s favour.

(iv) What do you understand by admission as per the Indian Evidence Act, 1872?
Distinguish it from confession.
Answer
Admissions
An admission is defined in Section 17 of the Indian Evidence Act, 1872(the Act) as a
statement, oral or documentary or contained in electronic form which suggests any
inference as to any fact in issue or relevant fact, and which is made by any of the persons,
and under the circumstances mentioned under Sections 18 to 20 of the Act. Thus, whether a
statement amounts to an admission

or not depends upon the question whether it was made by any of the persons and in any of
the circumstances described in Sections 18-20 and whether it suggests an inference as to a
fact in issue or a relevant fact in the case. Thus, admission may be verbal or contained in
documents as maps, bills, receipts, letters, books etc. (However, the word ‘statement’ has
not been defined in the Act. Therefore, the ordinary dictionary meaning is to be followed
which is “something that is stated.”) An admission may be made by a party, by the agent or

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 predecessor-in-interest of a party, by a person having joint propriety of pecuniary interest
in the subject matter (Section 18) or by a “reference” (Section 20).

Example: The question is, whether a horse sold by A to B is sound. A says to B-”Go and ask C,
C knows all about it.” C’s statement is an admission. This is an example of reference.

An admission is the best evidence against the party making the same unless it is untrue and
made under the circumstances which does not make it binding on him. An admission by the
Government is merely relevant and non-conclusive, unless the party to whom they are
made has acted upon and thus altered his detriment. An admission must be clear, precise,
not vague or ambiguous. In Basant Singh v. Janky Singh, (1967) 1 SCR 1, the Supreme Court
held:
1. Section 17 of the Indian Evidence Act, 1872 makes no distinction between an admission
made by a party in a pleading and other admission. Under the Indian law, an admission
made by a party in a plaint signed and verified by him may be used as evidence against
him in other suits. However, this admission cannot be regarded as conclusive and it is
open to the party to show that it is not true.
2. All the statements made in the plaint are admissible as evidence. The Court is, however,
not bound to accept all the statements as correct. The Court may accept some of the
statements and reject the rest.” Admission means conceding something against the
person making the admission. That is why it is stated as a general rule (the exceptions
are in Section 21), that admissions must be self-harming; and because a person is
unlikely to make a statement which is self-harming unless it is true evidence of such
admissions as received in Court. These Sections deal only with admissions oral and
written. Admissions by conduct are not covered by these sections. The relevancy of such
admissions by conduct depends upon Section 8 and its explanations. Oral admissions as
to the contents of electronic records are not relevant, unless the genuineness of the
record produced is in question.

Distinction between Confessions and Admissions

A confession, however, is received in evidence for the same reason as an admission, and like
an admission it must be considered as a whole. Further, there can be an admission either in
a civil or a criminal proceeding, whereas there can be a confession only in criminal
proceedings. An admission need not be voluntary to be relevant, though it may affect its
weight; but a confession to be relevant, must be voluntary. There can be relevant admission
made by an agent or even a stranger, but, a confession to be relevant must be made by the
accused himself. A confession of a co-accused is not strictly relevant, though it may be taken
into consideration, under Section 30 in special circumstances.

Confessions are classified as: (a) judicial, and (b) extra-judicial. Judicial confessions are
those made before a Court or recorded by a Magistrate under Section 164 of the Criminal
Procedure Code, 1973 after following the prescribed procedure such as warning the
accused that he need not to make the confession and that if he made it, it would be used
against him. Extra-judicial confessions are those which are made either to the police or to
any person other than Judges and Magistrates as such. An extra-judicial confession, if

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 voluntary, can be relied upon by the Court along with other evidence. It will have to be
proved just like any other fact. The value of the evidence depends upon the truthfulness of
the witness to whom it is made.

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 Jurisprudence, Interpretation and General Laws
December – 2024
Exam Paper
Time:- 3 Hrs [100 Marks]
1. Comment on the following

(a) Consideration is one of the essential elements of a valid contract. The requirement of
consideration stems from the policy of extending the arm of the law to the enforcement of
mutual promises of parties. A mere promise is not enforceable at law. For example, if A
promises to make a gift of ` 500 to B, and subsequently changes his mind, B cannot succeed
against A for breach of promise, as B has not given anything in return. It is only when a promise is
made for something in return from the promisee, that such promise can be enforced by law
against the promisor. This something in return is the consideration for the promise.

The fundamental principle is that consideration is essential in every contract. The rules
governing consideration may be summed up as follows :
(a) Every simple contact must be supported by valuable consideration, otherwise it is
formally void subject to some exceptions.
(b) Consideration may be an act of abstinence or promise.
(c) There must be mutuality i.e., each party must do or agree to do something. A
gratuitous promise is not enforceable.
(d) Consideration must be real, and not vague, indefinite, or illusory, e.g., a son’s promise
to ‘‘stop being a nuisance’’ to his father, being vague, is no consideration.
(e) Although consideration must have some value, it need not be adequate i.e., a full
return for the promise.
(f) Consideration must be lawful, e.g., it must not be some illegal act such as paying
someone to commit a crime. If the consideration is unlawful, the agreement is void.
(g) Consideration must be something more than the promisee is already bound to do for
the promisor. Thus, an agreement to perform an existing obligation made with the
person to whom the obligation is already owed, is not made for consideration.

In view of the above details, answer the following questions with reasons :
(i) Ram by a deed of gift made over certain property to her daughter Mira, directing her to pay
an annuity to Ram’s brother Raj, as had been done by Ram himself before he gifted his
property to Mira. On the same day, Mira executed in writing in favour of the donor’s brother
agreeing to pay the annuity. Six months later Mira stops the payment and Raj files a civil suit.
Mira claimed that because no consideration has moved from Raj to her, there is no binding
contract between them. Discuss.
[2 Marks]
Answer
Section 2(d) of the Indian Contract Act, 1872 (Act) defines consideration. According to it “when
at the desire of the promisor, the promisee or any other person has done or abstained from

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 doing, or does or abstains from doing, or promises to do or to abstain from doing something,
such act or abstinence or promise is called a consideration for the promise”.

The following observation can be made with regard to the question-

(a) Consideration at the desire of the promisor: Section 2(d) of the Act begins with the
statement that consideration must move at the desire or request of the promisor. This
means that whatever is done must have been done at the desire of the promisor and not
voluntarily or not at the desire of a third party.

(b) Consideration may move from the promisee or any other person: In English law,
consideration must move from the promisee, so that a stranger to the consideration cannot
sue on the contract. But in Indian law, consideration may move from the promisee or any
other person, so that a stranger to the consideration may maintain a suit.

The leading case on this judgement is the case of Chinnaya v. Ramaya (1882) 4 Mad. 137,
where the court held that consideration moving from a third party is sufficient to enforce a
contract.

In the given situation, Ram executed a deed of gift, transferring certain property to his daughter,
Mira. He instructed her to pay an annuity to his brother Raj, just as Ram had been doing before
gifting the property. On the same day, Mira signed a written agreement in favor of her uncle Raj,
committing to pay the annuity.

Later on, Mira refused to honor her promise to pay Raj, claiming that no consideration had been
provided to her by him.

According to Section 2(d) of the Indian Contract Act, 1872, consideration may come from the
promisee or any other person, meaning that a third party can maintain a suit. Therefore, it can
be concluded that Raj has the right to sue Mira, even though she did not receive any
consideration directly from him. The consideration provided by Ram when he transferred the
land to Mira is sufficient. Mira’s promise to pay Raj forms part of the consideration for the
property she received.

(ii) The general rule is that an agreement made without consideration is void. But Section 25 of
the Indian Contract Act, 1872, lays down certain exceptions which makes a promise
without consideration valid and binding. Discuss.
[2 Marks]
Answer
The general rule is that an agreement made without consideration is void. But Section 25 of the
Indian Contract Act, 1872 lays down certain exceptions which make a promise without
consideration valid and binding. Thus, an agreement without consideration is valid:
1. If it is expressed in writing and registered and is made out of natural love and affection
between parties standing in a near relation to each other; or
2. If it is made to compensate a person who has already done something voluntarily for the
promisor, or done something which the promisor was legally compellable to do; or

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 3. If it is a promise in writing and signed by the person to be charged therewith, or by his
agent, to pay a debt barred by the law of limitation.

Nothing in section 25 shall affect the validity, as between the donor and donee, of any gift
actually made.

An agreement to which the consent of the promisor is freely given is not void merely because
the consideration is inadequate; but the inadequacy of the consideration may be taken into
account by the Court in determining the question whether the consent of the promisor was
freely given.

Alternate Answer
The general rule is that an agreement made without consideration is void. But Section 25 of the
Indian Contract Act, 1872 lays down certain exceptions which make a promise without
consideration valid and binding. It states that an agreement made without consideration is void,
unless–
1. it is expressed in writing and registered under the law for the time being in force for the
registration of documents, and is made on account of natural love and affection between
parties standing in a near relation to each other ; or unless
2. it is a promise to compensate, wholly or in part, a person who has already voluntarily done
something for the promisor, or something which the promisor was legally compellable to
do; or unless;
3. it is a promise, made in writing and signed by the person to be charged therewith, or by his
agent generally or specially authorized in that behalf, to pay wholly or in part a debt of
which the creditor might have enforced payment but for the law for the limitation of suits.

In any of these cases, such an agreement is a contract.

Nothing in this section shall affect the validity, as between the donor and donee, of any gift
actually made.

An agreement to which the consent of the promisor is freely given is not void merely because
the consideration is inadequate; but the inadequacy of the consideration may be taken into
account by the Court in determining the question whether the consent of the promisor was
freely given.

(iii) Alex promises to donate ` 10,000 to a local animal shelter for their new facility. However, when
the shelter requests the donation, Alex refuses to pay. Can the management of animal
shelter take legal action against Alex to enforce his promise ? What would be your answer,
if the management of the shelter home had initiated some work on the basis of such
promise made.
[2 Marks]
Answer
A gratuitous promise to subscribe to a charitable cause cannot be enforced, but if the promisee
is put to some detriment as a result of his acting on the faith of the promise and the promisor

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 knew the purpose and also knew that on the faith of the subscription an obligation might be
incurred, the promisor would be bound by promise.

It may be noted that it is not necessary that the promisor should benefit by the consideration, it
is sufficient if the promisee has done some act from which a third person is benefited and he
would not have done that act but for the promise of the promisor.

The fundamental principle is that consideration is essential in every contract. Every contract
must be supported by valuable consideration. Thus, a gratuitous promise as in the case of
subscription for charity, is not enforceable.

In the given situation, the management of animal shelter would not be able to take legal action
to enforce Alex’s promise to donate ` 10,000, as the promise is gratuitous and without
consideration.

But if on the basis of the promise made by Alex to donate `10,000, the management of the
shelter home had initiated some work, Alex would be liable if know the purpose and also know
that on the faith of the subscription an obligation might be incurred. This is because the
management undertook liability by initiating some work which they would not have done but
for the promise of the promisor.

Alternate answer to above paragraph

But, if, based on Alex’s promise to donate `10,000, the management of the shelter home initiated
some work, but Alex was unaware that an obligation might be incurred in reliance on his
promise, he would not be held liable under the Indian Contract Act

(iv)D supplied tyres to a wholesaler X, on a condition that any retailer to whom X re- supplied
the tyres, the retailer should promise X not to sell them to the public below Ds price list. X
supplied tyres to F upon this condition only, but nevertheless F sold the tyres below Ds price list.
Discuss the legality of the case, if D claims any damages from F.
[2 Marks]
Answer
A stranger to a contract cannot sue both under the English and Indian law for want of privity of
contract. Accordingly, a person who is not a party to a contract cannot sue upon it even though
the contract is for his benefit.

In the given situation D supplied tyres to a wholesaler X, on a condition that any retailer to
whom X re-supplied the tyres should promise X, not to sell them to the public below D’s price
list. X supplied tyres to F upon this condition only, but nevertheless F sold the tyres below the
price list.

In the given situation, it can be seen that there was a contract between D and X and a contract
between X and F. D cannot claim for damages in the given circumstances as only a party to the
contract can claim it and he was not a partyto the contract between X and F. Secondly D had not
given any consideration to F and therefore there was no binding contract between these parties

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 and thirdly D was not listed as an agent within the contract and therefore could not be included
as a valid third party who had rights to claim on the contract.

In view of the above discussion, it may be concluded that D will not be able to claim damages
from F in the given circumstances.

(v) The Indian Law recognizes three kinds of consideration but the English law recognizes only
two. Discuss.
[2 Marks]
Answer
Consideration may be of three kinds:
(a) Executory or future which means that it makes the form of promise to be performed in the
future, e.g., an engagement to marry someone; or
(b) Executed or present in which it is an act or forbearance made or suffered for a promise. In
other words, the act constituting consideration is wholly or completely performed, e.g., if A
pays today `100 to a shopkeeper for goods which are promised to be supplied the next day,
A has executed his consideration but the shopkeeper is giving executory consideration-a
promise to be executed the following day. If the price is paid by the buyer and the goods are
delivered by the seller at the same time, consideration is executed by both the parties.
(c) Past which means a past act or forbearance, that is to say, an act constituting consideration
which took place and is complete (wholly executed) before the promise is made.

According to English law, a consideration may be executory or executed but never past. The
English law is that past consideration is no consideration. The Indian law recognizes all the
above three kinds of consideration.

(b) Chapter XVII of the Negotiable Instruments Act, 1881, provides for penalties in case of
dishonour of certain cheques for insufficiencies of funds in the accounts. Sections138 to 147
deal with these aspects.

Chapter XVII has been amended by the Negotiable Instruments (Amendment and
Miscellaneous Provisions) Act, 2002. The amendments have provided the drawer with more
time to send notice, made the punishment for the offence more stringent, given power to
court for condonation of delay in filing of complaint, excluded liability of government
nominated directors, made provision for summary trial of cases under the Chapter and time
bound disposal of cases, have relaxed the rules of evidence, and made the offences under
the Act compoundable.

Further Chapter XVII amended by the Negotiable Instruments (Amendment) Act, 2015,
focused on clarifying the jurisdiction related issues for filing cases for offence committed
under section 138 of the Negotiable Instruments Act, 1881. The Negotiable Instruments
(Amendment) Act, 2015, provides for retrospective validation for the new scheme of
determining the jurisdiction of a court to try a case under Section 138 of the Negotiable

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 Instruments Act, 1881. The Negotiable Instruments (Amendment) Act, 2015 also mandates
centralisation of cases against the same drawer.

With a view to address the issue of undue delay in final resolution of cheque dishonour cases,
so as to provide relief to payees of dishonoured cheques and to discourage frivolous and
unnecessary litigation, Parliament enacted the Negotiable Instruments (Amendment) Act,
2018 and notified by the Central Government on 1st September, 2018. The Amendment
Act strengthened the credibility of cheques and help trade and commerce in general
by allowing lending institutions, including banks, to continue to extend financing to the
productive sectors of the economy. The Negotiable Instruments (Amendment) Act, 2018
inserted two new sections i.e. Section 143A dealing withPower to direct interim compensation
and Section 148 dealing with Power of Appellate Court to order payment pending appeal
against conviction.

In reference to the above statements, answer the following questions :

(i) Mahesh draws a cheque of ` 25,000 on his own account, payable to Mukesh but only has `
20,000 in his account. Mukesh presents the same to the bank after six months from the
date on which it is drawn. The cheque bounced due to insufficient funds in Mahesh’s
account. Explain the legality of this, with reference to Section 138 of the Negotiable
Instruments Act, 1881.
[3 Marks]
Answer
Section 138 of the Negotiable Instruments Act, 1881 (Act) provides that where any cheque
drawn by a person on an account maintained by him with a banker for payment of any
amount of money to another person from out of that account for the discharge, in whole or in
part, of any debt or other liability, is returned by the bank unpaid, either because of the
amount of money standing to the credit of that account is insufficient to honour the cheque
or that it exceeds the amount arranged to be paid from that account by an agreement made
with that bank, such person shall be deemed to have committed an offence and shall, without
prejudice to any other provision of this Act, be punished with imprisonment for a term
which may be extended to two years, or with fine which may extendto twice the amount of
the cheque, or with both.

The proviso to this section provides that nothing contained in this section shall apply unless
the cheque has been presented to the bank within a period of six months from the date on
which it is drawn or within the period of its validity, whichever is earlier.

In the given situation, the cheque bounced due to insufficient funds in Mahesh’s account as
Mahesh hasdrawn a cheque of `25,000 on his own account but only ` 20,000 was there in his
account. But here Mukesh presented the cheque to the bank after six months from the date
on which it wasdrawn. Hence, the liability of Mahesh under Section 138 does not arise.

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 (ii) S who was director of R & D Company, issued a cheque in favour of G Associates for the
discharge of its debt. The cheque was returned by the bank unpaid because of the amount
of money standing to the credit of that account was insufficient to honour the cheque.
State, whether S is liable, considering the provisions of Section 141 of the Act ?
[3 Marks]
Answer
According to Section 141(1) of the Negotiable Instruments Act, 1881 (Act) if the person
committing an offence under section 138 is a company, every person who, at the time the
offence was committed, was in charge of, and was responsible to, the company for the
conduct of the business of the company, as well as the company, shall be deemed to be guilty
of the offence and shall be liable to be proceeded against and punished accordingly.

Provided that nothing contained in this sub-section shall render any person liable to
punishment if he proves that the offence was committed without his knowledge, or that he
had exercised all due diligence to prevent the commission of such offence.

Provided further that where a person is nominated as a Director of a company by virtue of

his holding any office or employment in the Central Government or State Government or a
financial corporation owned or controlled by the Central Government or the State
Government, as the case may be, he shall not be liable for prosecution under Chapter XVII.

Further, Section 141(2) states that notwithstanding anything contained in sub-section(1),

where any offence under this Act has been committed by a company and it is proved that the
offence has been committed with the consent or connivance of, or is attributable to, any
neglect on the part of, any director, manager, secretary or other officer of the company, such
director, manager, secretary or other officer shall also be deemed to be guilty of that offence
and shall be liable to be proceeded against and punished accordingly.

In the given situation, S who was director of R & D Company himself issued a cheque in
favour of G Associates for the discharge of the company’s debt. Hence, he would be deemed
to be guilty of the offence under Section 138 of the Act and shall be liable to be proceeded
against and punished accordingly.

(iii) Discuss the provisions related to the mode of service of summons by the Court under
Section 144 of the Act.
[3 Marks]
Answer
According to section 144(1) of the Negotiable Instruments Act, 1881 (Act), notwithstanding
anything contained in the Code of Criminal Procedure, 1973 and for the purposes of this
Chapter, a Magistrate issuing a summons to an accused or a witness may direct a copy of
summons to be served at the place where such accused or witness ordinarily resides or
carries on business or personally works for gain, by speed post or by such courier services as
are approved by a Court of Session.

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 Further according to section 144(2), where an acknowledgment purporting to be signed by
the accused or the witness or an endorsement purported to be made by any person
authorised by the postal department or the courier services that the accused or the witness
refused to take delivery of summons has been received, the Court issuing the summons may
declare that the summons has been duly served.

(iv)Discuss the provisions under Section 143A(4) with regards to repayment of the amount of
interim compensation where the drawer of the cheque is acquitted.
[3 Marks]
Answer
According to section 143A(4) of the Negotiable Instruments Act, 1881, if the drawer of the
cheque is acquitted, the Court shall direct the complainant to repay to the drawer the
amount of interim compensation, with interest at the bank rate as published by the Reserve
Bank of India, prevalent at the beginning of the relevant financial year, within sixty days
from the date of the order, or within such further period not exceeding thirty days as may be
directed by the Court on sufficient cause being shown by the complainant.

2. Attempt the following

(a) Discussing the case of Rylands Vs. Fletcher, state the rule of strict or absolute liability. Reyansh
owns a large, well-maintained dog, which is kept in a secure kennel in Reyansh’s backyard.
The kennel has a gate which is generally locked and a high fence to ensure that the dog
does not escape. One day, Vedant, a neighbour, climbs over the fence and opens the
kennel gate, allowing the dog to run free. The dog then bites Kartik, another neighbour,
who was walking by. Kartik files a suit for damages against Reyansh under the law of torts. Is
Reyansh liable for damages under the rule of strict liability ?
[5 Marks]
Answer
Strict or Absolute Liability: In some torts, the defendant is liable even though the harm to the
plaintiff occurred without intention or negligence on the defendant’s part.

The Rule in Rylands v. Fletcher (1868) L.R. 3 H.L. 330 is that a man acts at his peril and is the
insurer of the safety of his neighbour against accidental harm. Such duty is absolute because it
is independent of negligence on the part of the defendant or his servants.

The facts of this case were as follows: B, a mill owner employed independent contractors, who
were apparently competent to construct a reservoir on his land to provide water for his mill.
There were old disused mining shafts under the site of the reservoir which the contractors
failed to observe because they were filled with earth. The contractorstherefore, did not block
them. When the water was filled in the reservoir, it bursts through the shafts and flooded the
plaintiff’s coal mines on the adjoining land. It was found as a fact that B did not know of the
shafts and had not been negligent, though the independent contractors, had been, B was held
liable.

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 It was held in this case that the true rule of law is that the person, who for his own purposes
brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must
keep it at his peril and if, he does not do so is, prima facie answerable for all the damage which
is the natural consequence of its escape.

The case of Rylands v. Fletcher establishes a rule of strict liability for those who keep dangerous
things on their property that escape and cause damage. However, there are several exceptions
to this rule, one of which is the “act of a third party”.

Accordingly, “If the harm has been caused due to the act of a stranger, who is neither
defendant’s
servant nor agent nor the defendant has any control over him, the defendant will not be liable.”

In Box v. Jubh (1879) 4 Ex. D. 76, the overflow from the defendant’s reservoir was caused by the
blocking of a drain by stranger, the defendant was held not liable. But if the act of the stranger,
is or can be foreseen by the defendant and the damage can be prevented, the defendant must,
by due care prevent the damage. Failure on his part to avoid such damage will make him liable.
This means that if the escape and resulting damage are caused by the unforeseeable and
deliberate actions of a third party, the property owner may not be held liable.

In the given situation, Vedant intentionally climbed over the fence and opened the kennel gate,
allowing the dog to run free. This action was not something that Reyansh could have reasonably
anticipated or prevented. Therefore, Reyansh may not be held liable for the damages to Kartik
because the escape and subsequent injury were caused by Vedant i.e., the third party.

(b) Mahendra is an accused in a high-profile murder case. The investigating authorities want
to conduct a narco-analysis test without his consent to obtain evidence. Mahendra’s
advocate argues that the use of this test violates his fundamental rights. With reference to
Selvi v. State of Karnataka, AIR 2010 SC 1974, discuss as to whether the use of narco-analysis test
on Mahendra, without his consent, constitutes a violation of his fundamental rights. Is this right
available to all persons ?
[5 Marks]
Answer
According to Article 20(3) of the Constitution of India, no person accused of any offence shall be
compelled to be a witness against himself. In other words, an accused cannot be compelled to
state anything which goes against him. But it is to be noted that a person is entitled to this
protection, only when all the three conditions are fulfilled:
1. that he must be accused of an offence;
2. that there must be a compulsion to be a witness; and
3. such compulsion should result in his giving evidence against himself.

So, if the person was not an accused when he made a statement or the statement was not made
as a witness or it was made by him without compulsion and does not result as a statement
against himself, then the protection available under this provision does not extend to
suchperson or to such statement.

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 The ‘right against self-incrimination’ protects persons who have been formally accused as
wellas those who are examined as suspects in criminal cases. It also extends to cover witnesses
who apprehend that their answers could expose them to criminal charges in the ongoing
investigation or even in cases other than the one being investigated. [Selvi v. State of Karnataka,
AIR 2010 SC 1974].

In the given situation, the investigating authorities wanted to conduct a narco-analysis test
without Mahendra’s consent to obtain evidence against himself. This is a violation of his
fundamental rights under Article 20(3) which has the protection against self-incrimination.
Therefore, the use of narco- analysis tests on Mahendra without his consent would constitute a
violation of his fundamental rights under Article 20(3).

This fundamental right under Article 20(3) is available to all persons - whether citizens or non-
citizens.

(c) A filed a suit against B in 2019, claiming that B had wrongfully evicted him from a property.
The court in its judgment in 2021, ruled in favor of B, stating that the eviction was lawful and
dismissed A’s claim. In 2023, A files a new suit against B on the same grounds, seeking to
reopen the case. B argues that the new suit is barred under the Civil Procedure Code, 1908.
Discuss. What are the requirements necessary for the applicability of the principles of res
judicata ?
[5 Marks]
Answer
Section 11 of the Code of Civil Procedure, 1908 deals with the doctrine of res judicata.
According to this provision, no Court shall try any suit or issue in which the matter has been
directly and substantially in issue in a former suit (i.e., suit previously decided) either between
the same parties, or between parties under whom they or any of them claim, litigating under the
same title in a Court competent to try such subsequent suit or the suit in which such issue has
been subsequently raised and finally decided by such Court. It is a pragmatic principle accepted
and provided in law that there must be a limit or end to litigation on the same issues.

In the given situation, A filed a suit against B in 2019 claiming that B had wrongfully evicted him
from a property. The court in its judgment in 2021, decided in B’s favour, stating that the
eviction was lawful and dismissed A’s claim. In 2023, A files a new suit against B on the same
grounds, seeking to reopen the case. In the given situation, the principle of res judicata prevents
re-opening of the case based on the same grounds, as it was already adjudicated by the court.
Therefore, B’s argument is valid. The new suit filed by A in 2023, based on the same cause of
action, is barred by the doctrine of res judicata.

The doctrine of res judicata underlines the general principle that no one shall be twice vexed for
the same cause (S.B. Temple v. V.V.B. Charyulu, (1971) 1 SCJ 215).

It prevents two different decrees on the same subject. Section 11 says that once a res is judicata,
it shall not be adjudged again. The principle applies to suits in Section 11 of the Code; but even

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 where Section 11 does not apply, the principle of res judicata has been applied by Courts for the
purpose of giving finality to litigation. For the applicability of the principle of res judicata
embodied in Section 11, the following requirements are necessary:
1. The matter directly and substantially in issue in former suit shall also be directly and
substantially in issue in later suit. The expression “directly and substantially in issue”
means an issue alleged by one party and denied or admitted by the other either expressly
or by necessary implications.
2. The former suit has been decided - former suit means which is decided earlier.
3. The said issue has been heard and finally decided.
4. Such former suit and the latter are between the same parties or litigation under the same
title or persons claiming under parties above.

In short, this principle applies where an issue which has been raised in a subsequent suit was
directly and substantially in issue in a former suit between the same parties and was heard and
decided finally.

3. Attempt the following

(a) A is the owner of a field. He decides to sell it to B. There is a right of way from the field that
only A has knowledge of, but he conceals it from B. Discuss whether the contract can be
rescinded by B. What are the conditions where the court may refuse to rescind the contract?
[5 Marks]
Answer
Section 27 of the Specific Relief Act, 1963 deals with when rescission may be adjudged or
refused. “Rescission” means putting an end to a contract which is still operative and making it
null and void ab initio. It does not apply to void contracts.

Section 27(1) states that any person interested in a contract may sue to have it rescinded, and
such rescission may be adjudged by the court in any of the following cases, namely:-
(a) where the contract is voidable or terminable by the plaintiff;
(b) where the contract is unlawful for causes not apparent on its face and the defendant is more
to blame than the plaintiff.

In the given situation, A is the owner of a field. He decides to sell it to B. There is a right of way
from the field that only A has knowledge of but he conceals it from B. B is entitled to have that
contract rescinded as concealment of facts may be covered under misrepresentation and
therefore voidable under the Indian Contract Act, 1872.

As per Section 27(2) of the Specific Relief Act, 1963 the court may refuse to rescind the
contract-
(a) where the plaintiff has expressly or impliedly ratified the contract; or
(b) where, owing to the change of circumstances which has taken place since the making of the
contract (not being due to any act of the defendant himself), the parties cannot be
substantially restored to the position in which they stood when the contract was made; or

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 (c) where third parties have, during the subsistence of the contract, acquired rights in good
faith without notice and for value; or
(d) where only a part of the contract is sought to be rescinded and such part is not severable
from the rest of the contract.

The ‘contract’ in this section, in relation to the territories to which the Transfer of Property,
1882, does not extend, means a contract in writing.

(b) Aman and Manish have a dispute regarding the possession of an immovable property. The
dispute arose when Aman was 8 years old. Aman wants to file a civil suit for the recovery of
possession of the immovable property against Manish. The Limitation Act specifies a limitation
period of 12 years for the recovery of possession in such disputes, However, since Aman was a
minor when the limitation period commenced, how much time does he have to file a suit
after the cessation of his minority under the Limitation Act, 1963. Explain. What happens
when there is a joint entitlement of filing a suit or application ?
[5 Marks]
Answer
Section 5 of the Limitation Act, 1963 (Act) allows the extension of prescribed period in certain
cases on sufficient cause being shown for the delay. This is known as doctrine of “sufficient
cause” for condonation of delay. Section 5 provides that any appeal or any application, other
than an application under any of the provisions of Order XXI of the Code of Civil Procedure,
1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the
court that he had sufficient cause for not preferring the appeal or making the application within
such period.

The provisions related to persons under legal disability are given in Sections 6-8. Section 6 is an
enabling section to enable persons under disability to exercise their legal rights within a certain
time. Section 7 supplements Section 6, Section 8 controls these sections, which serves as an
exception to Sections 6 and 7. The combined effect of Sections 6 and 8 is that where the
prescribed period of limitation expires before the cessation of disability, for instance, before the
attainment of majority, the minor will no doubt be entitled to a fresh period of limitation from
the attainment of his majority subject to the condition that in no case the period extended by
Section 6 shall by virtue of Section 8 exceeds three years from cessation of disability, i.e.,
cessation of minority.

Sections 6, 7 and 8 must be read together. Section 8 imposes a limitation on concession

provided under Sections 6 and 7 to a person under disability up to a maximum of three years
after the cessation of disability. The Section applies to all suits except suits to enforce rights of
pre-emption.

The period of three years under Section 6 of this Act has to be counted, not from the date of
attainment of majority by the person under disability, but from the date of cessation of minority
or disability.

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 In the given situation, the dispute arose when Aman was 8 years old. Aman wants to file a civil
suit for the recovery of possession of the immovable property against Manish. Section 5 of the
Limitation Act, 1963 allows the extension of prescribed period in certain cases on sufficient
cause being shown for the delay. According to Section 6 where the prescribed period of
limitation expires before the cessation of disability, for instance, in this given situation before
the attainment of majority, the minor will no doubt be entitled to a fresh period of limitation
from cessation of minority subject to the condition that in no case the period extended shall by
virtue of Section 8 exceeds three years from cessation of disability, i.e., cessation of minority.

Hence, Aman can only get 3 years from cessation of disability, i.e., cessation of minority to file a
civil suit by virtue of Section 8 of the Limitation Act. Hence, Aman must file a suit within 3 years
of his cessation of minority.

Section 7 deals with the situation where there is joint entitlement of filling a suit or application.
It gives rise to two situations:
1. When discharge may be given by any other person without concurrence- In this situation,
time will run against them all.
2. When discharge cannot be given by any other person without concurrence- In this situation,
time will not run as against any of them until one of them becomes capable of giving such
discharge without the concurrence of the others or until the disability has ceased.

(c) A public authority received an RTI application demanding information about strategically
placed troops and related information when the country was at war with one of its
neighbouring countries. The authority denied its disclosure as it belonged to a category
which was exempted under the Right to Information Act, 2005. Discuss whether the authority
could deny such information with reference to the relevant provisions of the Act ?
[5 Marks]
Answer
Certain categories of information have been exempted from disclosure under the Right to
Information Act, 2005 (Act). These are:
1. Disclosure prejudicially affecting: Where disclosure prejudicially affects the sovereignty and
integrity of India, the security, strategic, scientific or economic interests of the State,
relation with foreign State leads to incitement of an offence.
2. Expressly forbidden by Court or Tribunal: Information which have been expressly
forbidden by Court or Tribunal or the disclosure of which may constitute contempt of court.
3. Breach of privilege of Parliament or State legislature: where disclosure would cause a
breach of privilege of Parliament or State legislature.
4. Harming competitive position: Information including commercial confidence, trade secrets
or intellectual property where disclosure would harm competitive position of a third party,
or available to a person in his fiduciary relationship, unless larger public interest so
warrants.
5. Confidence from a third party: Information received in confidence from a foreign
government.

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 6. Disclosure endangering life or public safety- Information, the disclosure of which endangers
life or physical safety of any person or identifies confidential source of information or
assistance.
7. Impede the process of investigation or apprehension or prosecution: Information that
would impede the process of investigation or apprehension or prosecution.
8. Cabinet papers: Cabinet papers including records of deliberations of the Council of
Ministers, Secretaries and other officers.
9. Personal information: Any personal information, the disclosure of which has no relationship
to any public activity or interest, or which would cause unwarranted invasion of the privacy
of the individual unless the Central Public Information Officer or the appellate authority, as
the case may be, is satisfied that the larger public interest justifies the disclosure of such
information.

Thus, the application demanding information from the public authority in case of a war or
invasion, revealing or giving out information about strategically placed troops and related
information, may be treated as information protected under section 8 of the Right to
Information Act, 2005. Such disclosure may prejudicially affects the sovereignty and integrity of
India.

In view of the above discussion, it may be said that the authority can deny such information
with reference to the relevant provisions of the Act.

Attempt all parts of either Q. No. 4 or Q. No. 4A

4. Attempt the following [5 Marks Each]

(a) The Municipal Corporation of Indore has a legal obligation to provide clean drinking water
to its residents as per the Madhya Pradesh Municipal Corporation Act, 1956. However, for the
past six months, the residents of Ward 12 have been complaining about the lack of clean
drinking water supply. Despite repeated complaints to the municipal authorities, no action
has been taken to rectify the situation. Patel, a resident of Ward 12, decides to take legal
action. He wants to file a writ petition in the Madhya Pradesh High Court to compel the
Municipal Corporation to fulfill its statutory duty of providing clean drinking water to the
residents of Ward12. What type of writ Patel can file with the High Court in this case ? Discuss
and give reasons for your conclusions.
[5 Marks]
Answer
The word ‘Mandamus’ literally means ‘we command’. The writ of mandamus is, a command
issued to direct any person, corporation, inferior court, or Government requiring him or it do a
particular thing specified therein which pertains to his or its office and is further in the nature of a
public duty. This writ is used when the inferior tribunal has declined to exercise jurisdiction while
resort to certiorari and prohibition arises when the tribunal has wrongly exercised jurisdiction or
exceeded its jurisdiction and are available only against judicial and quasi-judicial bodies.
Mandamus can be issued against any public authority. It commands activity. The writ is used for
securing judicial enforcement of public duties.

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 In a fit case, the Court can direct executives to carry out Directive Principles of the Constitution
through this writ [State of Maharashtra v. MP Vashi, 1995 (4) SCALE]. The applicant must have a
legal right to the performance of a legal duty by the person against whom the writ is prayed for. It
is not issued if the authority has a discretion.

The Constitution of India by Articles 226 and 32 enables mandamus to be issued by the High
Courts and the Supreme Court to all authorities.

Mandamus does not lie against the President or the Governor of a State for the exercise of their
duties and power (Article 361). It does not lie also against a private individual or body except
where the state is in collusion with such private party in the matter of contravention of any
provision of the Constitution of a statute. It is a discretionary remedy and the High Court may
refuse if alternative remedy exists except in case of infringement of fundamental rights.

In the given situation, it can be observed that the Municipal Corporation of Indore which is under
legal obligation to provide clean drinking water to its residents as per the Madhya Pradesh
Municipal Corporation Act, 1956. However, it does not address the repeated complaints by the
residents of Ward 12 about lack of clean drinking water supply. By filing a writ petition for
mandamus, Mr. Patel can seek judicial intervention to ensure that the Municipal Corporation of
Indore fulfils its statutory obligation, thereby safeguarding the resident’s right to clean drinking
water.

(b) What do you mean by joint venture or foreign collaboration agreements ? State the factors to
be kept in mind while drafting foreign collaboration agreements.
[5 Marks]
Answer
International business professionals use the term “modes of entry” to describe the different
methods and approaches available to enter markets and conduct business in other countries.
Important mode of entriesare joint ventures or foreign collaborations where two or more
organizations join together in a cooperative effort to further their business goals. The joint
venture or foreign collaborations are the most common and effective means of conducting
business internationally.

The joint venture or foreign collaboration documents and agreements are critical to the success of
the venture. It is difficult to prepare a set frame of the terms and conditions. The conditions may
differ according to the requirements.

While drafting a foreign collaboration agreement, the following factors should be kept in mind:
1. Capability of the collaborator and the requirements of the party are clearly indicated.
2. Clear definitions of technical terms are given.
3. Specify if the product shall be manufactured/sold on exclusive or non-exclusive basis.
4. Terms and conditions regarding nature of technical know-how, disclosure of drawings,
specifications and other documents, furnishing of technical information in respect of

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 processes with flow charts etc., plant outlay list of equipment, machinery and tool with
specification have to be provided.
5. Provisions for making available the engineers and/or skilled workers of the collaborator on
payment of expenses relating to their stay per diem etc. are given.
6. Details regarding specification and quality of the product to be manufactured are given.
7. Quality control and trademarks to be used are also specified.
8. Responsibility of the collaborator in establishing or maintaining assembly plants should be
clearly determined and provided for.
9. If sub-contracting of the work is involved, clarify if there would be any restrictions.
10. The rate of royalty, mode of calculation and payment etc. Also, make provision as to who will
bear the taxes/cess on such pay inents.
11. Use of information and industrial property rights should also be provided for in the
agreement.
12. A clause on force majeure should be included.
13. A clause that the collaborating company has to train the personnel of Indian company within a
specified period should be incorporated The clause should also specify the terms and
conditions of such assistance, place of training, period of training and fees payable.
14. A comprehensive clause on arbitration containing a clear provision as to the kind of arbitrator
and place of arbitration should be included.
15. There should be provision in the agreement for payment of interest on delayed payments.

(c) What is the purpose of the Digital Personal Data Protection Act, 2023. What are the key
provisions under Section 3 regarding the applicability and non-applicability of the Act to the
processing of digital personal data ? X, an individual, while blogging her views, has publicly
made available her personal data on social media. Do the provisions of this Act apply on her
?
[5 Marks]
Answer
The purpose of Digital Personal Data Protection Act, 2023(Act) is to provide the law relating to
the processing of digital personal data in a manner that recognises both the right of individuals to
protect their personal data and the need to process such personal data for lawful purposes and
for matters connected therewith or incidental thereto.

According to Section 3, subject to the provisions of this Act, it shall-

(a) apply to the processing of digital personal data within the territory of India where the
personal data is collected-
1. in digital form; or
2. in non-digital form and digitized subsequently;

(b) also apply to processing of digital personal data outside the territory of India, if such
processing is in connection with any activity related to offering of goods or services to Data
Principals within the territory of India;
(c) not apply to–
1. personal data processed by an individual for any personal or domestic purpose; and
2. personal data that is made or caused to be made publicly available by–

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  the Data Principal to whom such personal data relates; or
 any other person who is under an obligation under any law for the time being in force in
India to make such personal data publicly available.

X, an individual, while blogging her views, has publicly made available her personal data on social
media. In such case, the provisions of this Act do not apply on her.

OR
(Alternate question to Q. No. 2)

4A. Explain the following [5 Marks Each]

(i) Ravi had a longstanding grudge against Govind. Out of spite, Ravi had falsely accused
Govind of theft. Based on Ravi’s false report, criminal proceedings were initiated against
Govind. During the trial, the court found that the allegations were baseless and subsequently
acquitted Govind. After the acquittal, what remedy does Govind have against Ravi under
the law of tort ? Discuss in detail.
[5 Marks]
Answer
Malicious prosecution consists in instigating judicial proceedings (usually criminal) against
another, maliciously and without reasonable and probable cause, which terminate in favour of
that other and which results in damage to his reputation, personal freedom or property.

The following are the essential elements of this tort:

1. There must have been a prosecution of the plaintiff by the defendant.
2. There must have been want of reasonable and probable cause for that prosecution.
3. The defendant must have acted maliciously (i.e. with an improper motive and not to further
the end of justice).
4. The plaintiff must have suffered damages as a result of the prosecution.
5. The prosecution must have terminated in favour of the plaintiff.

To be actionable, the proceedings must have been instigated actually by the defendant. If he
merely states the fact as he believes them to a policeman or a magistrate, he is not responsible for
any proceedings which might ensue as a result of action by such policeman or magistrate on his
own initiative.

In the given situation, Ravi falsely accused Govind out of spite and that the court found the
allegations baseless and acquitted Govind. Therefore, Govind can seek a remedy against Ravi
under the law of tort by filing a suit for malicious prosecution under the law of tort.

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(ii) Define the term ‘mediation’ and ‘mediator’ under The Mediation Act, 2023. Distinguish
between arbitration and mediation.
[5 Marks]
Answer
According to Section 3(h) of the Mediation Act, 2023 (Act) “mediation” includes a process,
whether referred to by the expression mediation, pre-litigation mediation, online mediation,
community mediation, conciliation or an expression of similar import, whereby parties attempt to
reach an amicable settlement of their dispute with the assistance of a third person referred to as
mediator, who does not have the authority to impose a settlement upon the parties to the dispute.

According to Section 3(i) of the Mediation Act, 2023 “mediator” means a person who is appointed
to be a mediator, by the parties or by a mediation service provider, to undertake mediation, and
includes a person registered as mediator with the Council.

Explanation: Where more than one mediator is appointed for a mediation, reference to a mediator
under this Act shall be a reference to all the mediators;

Difference between Arbitration and Mediation are:

1. Mediation is when a neutral third party aims to assist the parties in arriving at a mutually
agreeable solution whereas arbitration is like litigation which is outside the court and which
results in an award like an order.
2. Mediation is more collaborative; arbitration is more adversarial.
3. The process of mediation is more informal than that of arbitration.
4. The outcome in mediation is controlled by the parties whereas in arbitration it is controlled
by the arbitrator.
5. In mediation, the dispute may or may not be resolved whereas in arbitration it is always
settled in either party’s favour.

(iii) ‘‘The general rule is that opinion of a witness on a question whether of fact or law, is irrelevant’’.
However, there are some exceptions to this general rule. Explain.
[5 Marks]
Answer
The general rule is that opinion of a witness on a question whether of fact or law, is irrelevant.
However, there are some exceptions to this general rule under Indian Evidence Act, 1872. These
are:
1. Opinions of experts. (Section 45): As a general rule the opinion of a witness on a question
whether of fact, or of law, is irrelevant. Witness has to state the facts which he has seen, heard
or perceived, and noted the conclusion, form of observations. The functions of drawing
inferences from facts is a judicial function and must be performed by the Court. However, to
this general rule, there are some exceptions as indicated in Section 45. Opinions of experts are
relevant upon a point of:
(a) foreign law
(b) science

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 (c) art
(d) identity of hand writing
(e) finger impression special knowledge of the subject matter of enquiry become relevant.

2. Opinion of Examiner of Electronic Evidence (Section 45A): When in a proceeding, the court
has to form an opinion on any matter relating to any information transmitted or stored in any
computer resource or any other electronic or digital form, the opinion of the Examiner of
Electronic Evidence referred to in Section 79A of the Information Technology Act, 2000, is a
relevant fact.
Explanation- For the purposes of this section, an Examiner of Electronic Evidence shall be an
expert.

3. Facts which support or are inconsistent with the opinions of experts are also made relevant.
(Section 46): The Facts which are not otherwise relevant becomes relevant if they support or
are inconsistent with the opinions of experts, when such opinions are relevant.

4. Others: In addition to the opinions of experts, opinion of any other person is also relevant in
the following cases:
(a) Opinion as to the handwriting of a person if the person giving the opinion is acquainted with
the handwriting of the person in question; (Section 47)
(b) Opinion as to the electronic/digital signature of any person, the opinion of the Certifying
Authority which has issued the electronic/digital signature certificate; (Section 47A)
(c) Opinion as to the existence of any general right or custom if the person giving the opinion is
likely to be aware of the existence of such right or custom; (Section 48)
(d) Opinion as to usages etc. words and terms used in particular districts, if the person has special
means of knowledge on the subject; (Section 49)
(e) Opinion expressed by conduct as the existence of any relationship by persons having special
means of knowledge on the subject. (Section 50)

Alternate Answer
The general rule is that opinion of a witness on a question whether of fact or law, is irrelevant.
However, there are some exceptions to this general rule under Bharatiya Sakshya Adhiniyam,
2023. These are:
1. Opinions of experts. (Section 39(1)): As a general rule the opinion of a witness on a question
whether of fact, or of law, is irrelevant. Witness has to state the facts which he has seen, heard
or perceived, and noted the conclusion, form of observations. The functions of drawing
inferences from facts is a judicial function and must be performed by the Court. However, to
this general rule, there are some exceptions as indicated in Section 39(1). Opinions of experts
are relevant upon a point of:
(a) foreign law
(b) science
(c) art
(d) identity of hand writing
(e) finger impression special knowledge of the subject matter of enquiry become relevant.
(f) or any other field

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 2. Opinion of Examiner of Electronic Evidence (Section 39(2)): When in a proceeding, the court
has to form an opinion on any matter relating to any information transmitted or stored in any
computer resource or any other electronic or digital form, the opinion of the Examiner of
Electronic Evidence referred to in Section 79A of the Information Technology Act, 2000, is a
relevant fact.
Explanation- For the purposes of this section, an Examiner of Electronic Evidence shall be an
expert.
3. Facts which support or are inconsistent with the opinions of experts are also made relevant.
(Section 40): The Facts which are not otherwise relevant becomes relevant if they support or
are inconsistent with the opinions of experts, when such opinions are relevant.
4. Others: In addition to the opinions of experts, opinion of any other person is also relevant in
the following cases:
(a) Opinion as to the handwriting and signature of a person if the person giving the opinion is
acquainted with the handwriting of the person in question; (Section 41(1))
(b) Opinion as to the electronic/digital signature of any person, the opinion of the Certifying
Authority which has issued the electronic/digital signature certificate; (Section 41(2))
(c) Opinion as to the existence of any general right or custom if the person giving the opinion
is likely to be aware of the existence of such right or custom; (Section 42)
(d) Opinion as to usages etc. words and terms used in particular districts, if the person has
special means of knowledge on the subject; (Section 43)
(e) Opinion expressed by conduct as the existence of any relationship by persons having
special means of knowledge on the subject. (Section 44)

5. Attempt the following [5 Marks Each]

(a) (i) What are the four principal sources of administrative law ?
(ii) Rule of law was developed by British Jurist A.V. Dicey, which he gave in his book ‘‘Rule of
Law’’. Discuss.
[5 Marks]
Answer
(i) Four principal sources of Administrative Law
There are four principal sources of administrative law in India. They are as under:
1. Constitution of India: It is the primary source of administrative law. Article 73 of the
Constitution provides that the executive power of the Union shall extend to matters with
respect to which the Parliament has power to make laws. Similar powers are provided to
States under Article 62. Indian Constitution has not recognized the doctrine of separation of
powers in its absolute rigidity. The Constitution also envisages tribunals, public sector and
government liability which are important aspects of administrative law.
2. Acts/ Statutes: Acts passed by the Central and State Governments for the maintenance of
peace and order, tax collection, economic and social growth empower the administrative
organs to carry on various tasks necessary for it. These Acts list the responsibilities of the
administration, limit their power in certain respects and provide for grievance redressal
mechanism for the people affected by the administrative action.
3. Ordinances, Administrative directions, Notifications Circulars: Ordinances are issued when
there are unforeseen developments and the legislature is not in session and therefore cannot

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 make laws. Ordinances allow the administration to take necessary steps to deal with such
developments. Administrative directions, notifications and circulars are issued by the
executive in the exercise of power granted under various Acts.
4. Judicial decisions: Judiciary is the final arbiter in case of any dispute between various wings of
government or between the citizen and the administration. In India, we have the supremacy of
Constitution and the Supreme Court is vested with the authority to interpret it. The courts
through their various decisions on the exercise of power by the administration, the liability of
the government in case of breach of contract or tortuous acts of Governments servants lay
down administrative laws which guide their future conduct.

(ii) Rule of Law

Rule of Law was developed by British Jurist A.V. Dicey. He derived this term from French Principle
‘La principle de legalite’ which means the principle of legality. It states that the government should
be governed by Rule of Law instead of Rule of Individual. Any dictator, monarch or one particular
person should not govern the functioning of any nation. Each country should follow legality of law.

Three major principles given by Dicey in his book “Rule of Law” are:
1. Supremacy of law: It means that ordinary or regular laws shall remain supreme. Supremacy here
means absolute and pre-dominance of regular laws as against arbitrary or wide discretionary
powers.
2. Equality before the law: According to Dicey, all classes must be equally subject to the ordinary law
of the land as administered by the ordinary law courts. He states that there should be equality
between people. According to Dicey, all classes must be equally subject to the ordinary law of the
land as administered by the ordinary law courts. It provides that all are equal before law and
everyone will be subjected to the same law.
3. The predominance of a legal spirit: Legal Spirit refers to the judicial precedents upon any dispute
raised by any individual. The judgment given in any case will be the legal spirit of that particular
case. It basically refers to the law as set by the precedents that have evolved over time.

(b) (i) A puts bait for dogs in his pocket and induces Z’s dog to follow it. A dishonestly takes the
dog out of Z’s possession without Z’s consent. Explain the offence committed by A under the
Indian Penal Code, 1860. What is the punishment for the offence committed ?
(ii) In another case A threatens Z that he will keep Z’s child in wrongful confinement, unless Z
will sign and deliver to A a promissory note binding Z to pay certain monies to A. Z signs and
delivers the note. Explain the offence committed by A under the Indian Penal Code, 1860.
[5 Marks]
Answer
(i) According to Section 378 of the Indian Penal Code, 1860 (IPC) “Whoever, intending to take
dishonestly any movable property out of the possession of any person without that person’s
consent, moves that property in order to such taking, is said to commit theft.”

The essentials elements of theft are:

1. There should be an intention to dishonestly take the property.
2. The property should be movable property.
3. The property should be taken out of the possession without that person’s consent.

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 4. The property should be moved in order to take that property.

In the instant case, A has committed the offence of theft as A dishonestly takes the dog out of Z’s
possession without Z’s consent.

Section 379 of IPC provides the punishment for theft and states that whoever commits theft shall be
punished with imprisonment of either description for a term which may extend to three years, or with
fine, or with both.

Alternate Answer
(i) According to Section 303(1) of the Bharatiya Nyaya Sanhita, 2023 “Whoever, intending to take
dishonestly any movable property out of the possession of any person without that person’s
consent, moves that property in order to such taking, is said to commit theft.”

The essentials elements of theft are:

1. There should be an intention to dishonestly take the property.
2. The property should be movable property.
3. The property should be taken out of the possession without that person’s consent.
4. The property should be moved in order to take that property.

In the instant case, a has committed the offence of theft as A dishonestly takes the dog out of Z’s
possession without Z’s consent.

Section 303(2) of BNS provides the punishment for theft and states that whoever commits theft shall
be punished with imprisonment of either description for a term which may extend to three years, or
with fine, or with both. In case of second or subsequent conviction of any person under this section, he
shall be punished with rigorous imprisonment for a term which shall not be less than one year but
which may extend to five years and with fine.

Provided that in cases of theft where the value of the stolen property is less than five thousand rupees,
and a person is convicted for the first time, shall upon return of the value of property or restoration of
the stolen property, shall be punished with community service.

(ii) According to Section 383 of the Indian Penal Code, 1860 (IPC) “whoever intentionally puts any
person in fear of any injury to that person, or to any other, and thereby dishonestly induces the
person so put in fear to deliver to any person any property, or valuable security or anything
signed or sealed which may be converted into a valuable security, commits “extortion”.

The essentials elements of extortion are:

1. There should be an intention to put any person in fear of any injury.
2. By that fear of injury, dishonestly induces the person so put in fear to deliver any property, or
valuable security or anything signed or sealed which may be converted into a valuable security.

In the instant case, A threatened Z that he will keep Z’s child in wrongful confinement, unless Z will
sign and deliver to A, a promissory note binding Z to pay certain monies to A. Z signed and delivered

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 the note. A has committed the offence of extortion as he has put fear of injury to Z thereby dishonestly
inducing the person so put in fear to deliver any property, or valuable security or anything signed or
scaled which may be converted into a valuable security.

Alternate Answer
(ii) According to Section 308(1) of the Bharatiya Nyaya Sanhita, 2023 (BNS) “whoever intentionally
puts any person in fear of any injury to that person, or to any other, and thereby dishonestly
induces the person so put in fear to deliver to any person any property, or valuable security or
anything signed or sealed which may be converted into a valuable security, commits “extortion”.

The essentials elements of extortion are:

1. There should be an intention to put any person in fear of any injury.
2. By that fear of injury, dishonestly induces the person so put in fear to deliver any property, or
valuable security or anything signed or sealed which may be converted into a valuable security.

In the instant case, A threatened Z that he will keep Z’s child in wrongful confinement, unless Z will
sign and deliver to A, a promissory note binding Z to pay certain monies to A. Z signed and delivered
the note. A has committed the offence of extortion as he has put fear of injury to Z thereby dishonestly
inducing the person so put in fear to deliver any property, or valuable security or anything signed or
scaled which may be converted into a valuable security.

(c) What do you mean by lease under the Transfer of Property Act, 1882 ? Discuss the duties of
the lessee ?
[5 Marks]
Answer
Meaning of Lease
According to Section 105 under the Transfer of Property Act 1882 (Act), a “lease” of immoveable
property is a transfer of a right to enjoy property. Since it is a transfer to enjoy and use the property,
possession is always given to the transferee. The lease of immoveable property must be made for a
certain period. For example, you may give a lease of property for a definite number of years, or for life,
or even permanently.

The transferor is called the lessor, the transferee is called the lessee, the price is called premium and
the money, share, service or any other thing of value to be so rendered is called the rent.

Duties of the lessee

The lessee has the following duties:
(a) The lessee is bound to disclose to the lessor any fact as to nature or extent of the interest that the
lessee is about to take, of which the lessee is, and the lessor is not aware and which materially
increases the value of such interest.
(b) The lessee is bound to pay or tender at the proper time and place, the premium or rent to the
lessor or his agent in this behalf. We have already seen that in case the lessee does not pay the
rent, he may incur forfeiture of the tenancy. The liability to pay the rent commences from the date
the tenant is put into possession.

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 (c) The next duty of the lessee is that he uses the property as a person of ordinary prudence would
make use of. But he shall not permit another person to use the property for purposes other than
that for which it was leased.
(d) He should not do any act which is destructive of or permanently injurious to the property.
(e) The lessee must not, without the lessor’s consent, erect on the property any permanent structure
except for agricultural purpose. If he wants to erect certain fixtures or chattel on the leased
property, it must be done without causing any damage to the property. Before the termination of
the lease, he can remove all the things attached to the earth. If permanent fixtures are to be made,
the lessee must obtain the consent of the landlord.
(f) If the lessee comes to know of any proceedings by way of suit to recover the property of the lessor,
the lessee should immediately inform the lessor. Since, the tenant is in possession of the property
he is the person who is not likely to know of any encroachment on the landlord’s property and he
should therefore inform the landlord.
(g) The lessee should hand over the property at the end of the lease.

Attempt all parts of either Q. No. 6 or Q. No. 6A

6. Attempt the following [5 Marks Each]

(a) Kunal buys a refrigerator from a shopkeeper, Rohit, and the property has passed from
Rohit to Kunal. Kunal does not take delivery as he has his own pick-up and does not want to
pay freight. Kunal and Rohit agree on taking possession the next day. So, the refrigerator
remains in Rohit’s shop and the price is unpaid. Before delivery, Rohit’s shop is flooded due
to heavy rain and the refrigerator is destroyed. Is Rohit liable to pay the price of the
refrigerator ? Explain with reference to the provisions of the Sale of Goods Act, 1930.
[5 Marks]
Answer
The given situation is based on the rule “resperit domino” i.e., the loss falls on the owner. The
general rule is that goods remain at the seller’s risk until ownership is transferred to the buyer.
After ownership has passed to the buyer, the goods are at the buyer’s risk, whether delivery has
been made or not.

According to Section 26 of the Sale of Goods Act, 1930, unless otherwise agreed, the goods
remain at the seller’s risk until the property therein is transferred to the buyer. However, once
the property is transferred to the buyer, the goods are at the buyer’s risk, regardless of whether
delivery has been made:

Provided that: Where delivery has been delayed through the fault of either the buyer or the
seller, the goods are at the risk of the party at fault as regards any loss which might not have
occurred but for such fault.

Provided also that: Nothing in this section shall affect the duties or liabilities of either the seller
or the buyer as a bailee of the goods of the other party.

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 Therefore, based on the provisions of the Sale of Goods Act, 1930, and the property has passed
from Rohit to Kunal. Therefore, Rohit is not liable for the destruction of the refrigerator. Hence
Rohit is not liable to pay the price of the refrigerator. Kunal, as the owner, must bear the loss
and is required to pay the price of the refrigerator.

(b) Rajan made a gift of a house to his son, Ravi, with the condition that if Ravi decides to sell the
house during the lifetime of Rajan’s wife, she should have the option to purchase it for
`10,000, even though the market value of the house is set at ` 10,00,000. Decide the validity of
this transfer under the Transfer of Property Act, 1882. Would your answer be the same if
Rajan, instead of the above condition, imposed a condition that Ravi will not alienate the
property outside the family ? When are absolute restraints valid ?
[5 Marks]
Answer
Section 10 of the Transfer of Property Act, 1882(Act) states that when property is transferred,
the transferee should not be absolutely restrained from alienating the property. One may
transfer property to another subject to a condition, but the condition should not be one which
absolutely prevents the transferee from alienating the property. The transfer takes effect and is
valid, while the condition to not alienate the property is void.

In the first case, based on the precedent set by Rosher v. Rosher and the principles under the
Act, the condition that Rajan imposed on Ravi’s ability to sell the house shall be deemed invalid
under the Act, as condition was an absolute restraint. However, the transfer shall be valid and
the condition shall be void. It will be presumed that no condition was imposed by the Rajan.

Though absolute restraints are bad in law, partial restraints are valid. A partial restraint is a
condition which partially takes away the right of the transferee to dispose of his interest in the
property. Here, the right is not taken away completely. Therefore, in second case, conditions
which restrain the transferee not to alienate the property outside the family is partial restrain
and valid.

There are two exceptions to the rule that absolute restraints are void:

Firstly, in the case of a lease, the lessor can impose a condition that the lessee shall not sublet
the property or sell his leasehold interest. Such conditions are valid.

The second exception is made in respect of a woman who is not a Hindu, Buddhist or Muslim.

In such a case, a condition to the effect that she shall not have power during her marriage to
transfer the property is valid.

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(c) Shikha is accused of committing fraud by submitting false documents to obtain a loan from a
bank. Her actions constitute an offence under both the Indian Penal Code (IPC) and the
Banking Regulation Act. The prosecution initiates legal proceedings against Shikha under
both enactments. Explain whether Shikha can be punished twice for the same offense
under the IPC and the Banking Regulation Act, with regards to the provisions of the General
Clauses Act, 1897 ? What are the provisions mentioned in the Act with regards to the
computation of time ?
[5 Marks]
Answer
According to Section 26 of the General Clauses Act, 1897, where an act or omission constitutes
an offence under two or more enactments, then the offender shall be liable to be prosecuted and
punished under either or any of those enactments, but shall not be liable to be punished twice
for the same offence.

According to the Supreme Court in Baliah v. Rangachari, AIR 1969 SC 701, a plain reading of
section 26 shows that there is no bar to the trial or conviction of an offender under two
enactments, but there is only a bar to the punishment of the offender twice for the same offence.

In other words, the section provides that where an act or omission constitutes an offence under
two enactments, the offender may be prosecuted and punished under either or both the
enactments but shall not be liable to be punished twice for the same offence.

Shikha cannot be punished twice for the same offense under both the Indian Penal Code, 1860
(IPC) and the Banking Regulation Act, as per Section 26 of the General Clauses Act, 1897. While
she can be prosecuted under both enactments, any conviction and punishment must be
confined to one enactment to avoid double jeopardy and ensure compliance with the law.

Section 10 of General Clauses Act, 1897, provides the provisions relating to Computation of
time. Sub section 1 of section 10 states:

Where, by any Central Act or Regulation made after the commencement of this Act, any act or
proceeding is directed or allowed to be done or taken in any Court or office on a certain day or
within a prescribed period, then, if the Court or office is closed on that day or the last day of the
prescribed period, the act or proceeding shall be considered as done or taken in due time if it is
done or taken on the next day afterwards on which the Court or office is open.

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(d) Brother A executed in favour of brother B a gift of all his property. By another deed,
brother B made provision for the living expenses of brother A and hypothecating in favour
of brother A, a part of the property included in the above mentioned gift deed, in order to
secure the payment of the living expenses. Discuss whether the two documents are part of
the same transaction explaining the relevant provisions of the Indian Stamp Act, 1899 ?
[5 Marks]
Answer
Section 4 of the Indian Stamp Act, 1899(the Act) provides that, where in the case of any sale,
mortgage or settlement, several instruments are employed for completing the transaction -
Only the principal instrument shall be chargeable with the duty prescribed for the conveyance,
mortgage or settlement; and each of the other instruments shall be chargeable with a duty of
one rupee (instead of the duty if any prescribed for the other instruments).

Provided that the duty chargeable on the instrument so determined shall be the highest duty
which would be chargeable in respect of any of the said instruments employed.

In the given situation, brother A executed in favour of brother B a gift of all his property. By
another deed, brother B made provision for the living expenses of brother A and hypothecating
in favour of brother A, a part of the property included in the above-mentioned gift deed, in
order to secure the payment of the living expenses.

In view of the above provisions, it can be said that the two documents were part of the same
transaction. This amounts to a settlement and Section 4 will apply as per the decision in a
similar situation in the case of Maharaj Someshar Dutt, ILR 37 All 264).

OR
(Alternate question to Q. No. 2)

6A. Attempt the following [5 Marks Each]

(i) Judicial precedents are an important source of law. Discuss various kinds of precedents.
[5 Marks]
Answer
Judicial precedents are an important source of law. They have enjoyed high authority at all
times and in all countries.

Precedents may be classified as:

(a) Declaratory and Original Precedents: According to Salmond, a declaratory precedent is one
which is merely the application of an already existing rule of law. An original precedent is
one which creates and applies a new rule of law. In the case of a declaratory precedent, the
rule is applied because it is already a law. In the case of an original precedent, it is law for
the future because it is now applied. In the case of advanced countries, declaratory
precedents are more numerous. The number of original precedents is small but their
importance is very great. They alone develop the law of the country. They serve as good

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 evidence of law for the future. A declaratory precedent is as good a source of law as an
original precedent. The legal authority of both is exactly the same.
(b) Persuasive Precedents: A persuasive precedent is one which the judges are not obliged to
follow but which they will take into consideration and to which they will attach great weight
as it seems to them to deserve. A persuasive precedent, therefore, is not a legal source of
law; but is regarded as a historical source of law. Thus, in India, the decisions of one High
Court are only persuasive precedents in the other High Courts. The rulings of the English
and American Courts are persuasive precedents only. Obiter dicta also have only persuasive
value.
(c) Absolutely Authoritative Precedents: An authoritative precedent is one which the judges
must follow whether they approve of it or not. Its binding force is absolute and the judge’s
discretion is altogether excluded as he must follow it. Such a decision has a legal claim to
implicit obedience, even if the judge considers it wrong. Unlike a persuasive precedent
which is merely historical, an authoritative precedent is a legal source of law.

Every court in India is absolutely bound by the decisions of courts superior to itself. The
subordinate courts are bound to follow the decisions of the High Court to which they are
subordinate. A single judge of a High Court is bound by the decision of a bench of two or
more judges. All courts are absolutely bound by decisions of the Supreme Court.
(d) Conditionally Authoritative Precedents: A conditionally authoritative precedent is one
which, though ordinarily binding on the court before which it is cited, is liable to be
disregarded in certain circumstances. The court is entitled to disregard a decision if it is a
wrong one, i.e., contrary to law and reason.

(ii) A pharmaceutical company, Moon Pharma Ltd., filed a patent infringement lawsuit against a
small Biotech startup, Deep Ltd. The case was heard by Judge M, who held significant
shares in the Moon Pharma Ltd. Judge M ruled in favour of Moon Pharma Ltd. Should Judge M
have abstained himself from the case on the basis of principle of Natural Justice ? Elaborate.
[5 Marks]
Answer
Rule against bias (nemo judex in causa sua)
According to this rule no person should be made a judge in his own cause. Bias means an
operative prejudice whether conscious or unconscious in relation to a party or issue. It is a
presumption that a person cannot take an objective decision in a case in which he has an
interest. The rule against bias has two main aspects- one, that the judge must not have any
direct personal stake in the matter at hand and two, there must not be any real likelihood of
bias.

Bias can be of the following three types:

1. Pecuniary bias: The judicial approach is unanimous on the point that any financial interest
of the adjudicatory authority in the matter. Howsoever small, would vitiate the adjudication.
Thus, a pecuniary interest, howsoever insufficient, will disqualify a person from acting as a
Judge.
2. Personal bias: There are number of situations which may create a personal bias in the
Judge’s mind against one party in dispute before him. He may be friend of the party, or

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 related to him through family, professional or business ties. The judge might also be hostile
to one of the parties to a case. All these situations create bias either in favour of or against
the party and will operate as a disqualification for a person to act as a Judge.
3. Subject matter bias: A judge may have a bias in the subject matter, which means that he
himself is a party, or has some direct connection with the litigation. To disqualify on the
ground of bias there must be intimate and direct connection between adjudicator and the
issues in dispute.

The judicial approach is unanimous on the point that any financial interest of the adjudicatory
authority in the matter, however small, would vitiate the adjudication. Thus, a pecuniary
interest, however insignificant, will disqualify a person from acting as a judge.

Judge M’s significant financial interest in Moon Pharma Ltd. creates a clear conflict of interest,
violating the principle of nemo judex in causa sua and compromising judicial impartiality.
Therefore, Judge M should have abstained himself from the case on the basis of the principle of
Natural Justice.

(iii) What do you understand by National Electronic Funds Transfer (NEFT) ? State the
advantage of NEFT.
[5 Marks]
Answer
National Electronic Funds Transfer (NEFT) is a nation-wide payment system facilitating one-to-
one funds transfer. Under this Scheme, individuals, firms and corporates can electronically
transfer funds from any bank branch to any individual, firm or corporate having an account
with any other bank branch in the country participating in the Scheme. NEFT is an electronic
fund transfer system that operates on a Deferred Net Settlement (DNS) basis which settles
transactions in batches. In DNS, the settlement takes place with all transactions received till the
particular cutoff time.

Advantages of NEFT
 Round the clock availability on all days of the year.
 Near-real-time funds transfer to the beneficiary account and settlement in a secure
manner.
 Pan-India coverage through large network of branches of all types of banks.
 The beneficiary need not visit a bank branch for depositing the paper instruments.
 Remitter can initiate the remittances from his / her home / place of work using internet
banking, if his/her bank offers such service.
 Positive confirmation to the remitter by SMS / e-mail on credit to beneficiary account.
 Penal interest provision for delay in credit or return of transactions.
 No levy of charges by Reserve Bank of India (RBI) from banks.
 No charges to savings bank account customers for online NEFT transactions.
 The transaction charges have been capped by RBI.
 Besides funds transfer, NEFT system can be used for a variety of transactions including
payment of credit card dues to the card issuing banks, payment of loan EMI, inward foreign
exchange remittances, etc.

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  The transaction has legal backing.

(iv)In which offences can a case be tried summarily under Section 260(1) of the Criminal
Procedure Code, 1973 ?
[5 Marks]
Answer
Section 260 of the Code of Criminal Procedure, 1973(Code) provides the provisions relating to
Power to try summarily. Section 260(1) states that:

Notwithstanding anything contained in this Code– (a) any Chief Judicial Magistrate; (b) any
Metropolitan Magistrate; (c) any Magistrate of the first class specially empowered in this behalf
by the High Court, may, if he thinks fit, try in a summary way all or any of the following
offences:–
1. offences not punishable with death, imprisonment for life or imprisonment for a term
exceeding two years;
2. theft, under section 379, section 380 or section 381 of the Indian Penal Code, where the
value of the property stolen does not exceed two thousand rupees;
3. receiving or retaining stolen property, under section 411 of the Indian Penal Code, where
the value of the property does not exceed two thousand rupees;
4. assisting in the concealment or disposal of stolen property, under section 414 of the Indian
Penal Code, where the value of such property does not exceed two thousand rupees;
5. offences under sections 454 and 456 of the Indian Penal Code;
6. insult with intent to provoke a breach of the peace, under section 504, and criminal
intimidation punishable with imprisonment for a term which may extend to two years, or
with fine, or with both, under section 506 of the Indian Penal Code;
7. abetment of any of the foregoing offences;
8. an attempt to commit any of the foregoing offences, when such attempt is an offence;
9. any offence constituted by an act in respect of which a complaint may be made under
section 20 of the Cattle-trespass Act, 1871.

Alternate Answer
Section 283 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides the provisions
relating to Power to try summarily. Section 283(1) states that:

Notwithstanding anything contained in this Code– (a) any Chief Judicial Magistrate; (b) any
Magistrate of the first class specially empowered in this behalf by the High Court, may, if he
thinks fit, try in a summary way all or any of the following offences:–
1. theft, under section 301, section 303 or section 304 of the Bharatiya Nyaya Sanhita, 2023
where the value of the property stolen does not exceed twenty thousand rupees;
2. receiving or retaining stolen property, under section 315 of the Bharatiya Nyaya Sanhita,
2023, where the value of the property does not exceed twenty thousand rupees;
3. assisting in the concealment or disposal of stolen property under section 315 of the
Bharatiya Nyaya Sanhita, 2023, where the value of such property does not exceed twenty
thousand rupees;
4. offences under section 330 of the Bharatiya Nyaya Sanhita, 2023;

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 5. insult with intent to provoke a breach of the peace, under section 350, and criminal
intimidation, under section 349 of the Bharatiya Nyaya Sanhita, 2023;
6. abetment of any of the foregoing offences;
7. an attempt to commit any of the foregoing offences, when such attempt is an offence;
8. any offence constituted by an act in respect of which a complaint may be made under
section 20 of the Cattle-trespass Act, 1871.

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