Monthly Archives: September 2015

Valuation of Goods – Point of Sale

The principle of law, thus is crystal clear. It is to be seen as to whether as to what point of time sale is effected, namely, whether it is on factory gate or at a later point of time, i.e., when the delivery of the goods is effected to the buyer at his premises. This aspect is to be seen in the light of the provisions of the Sale of Goods Act by applying the same to the facts of each case to determine as to when the ownership in the goods is transferred from the seller to the buyer. The charges which are to be added have put up to the stage of transfer of that ownership inasmuch as once the ownership in goods stands trabsferred to the buyer, any expenditure incurred thereafter has to be on buyer’s account and cannot be a component which would be included while ascertaining the valuation of the goods manufactured by the buyer. Commissioner, Customs and Central Excise v. Roofit Industries Ltd., (2015) 8 SCC 229.

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Filed under Indirect Tax, Valuation of Goods

Words “Type” and “Form” – Have different meanings

In common parlance, the two words “type” and “form” are not of the same import. According to the Oxford Dictionary, whereas the meaning of the expression “types” is “kind, class, breed, group, family, genus”; the meaning of the word, “form”, is “visible shape or configuration of something”, or the “style, design and arrangement in an artistic work as different from its content”. Similarly, Macmillan Dictionary defines “type” as “a group of people or things with similar qualities or features that make them different from other groups” and “form” as “the particular way in which something appears or exists or a shape of someone or something”. Therefore, “types” are based on the broad nature of the item intended to be classified and in terms of “forms”, the distinguishable feature is the particular way in which the items exist. An example could be the item “wax”. The types of wax would include animal, vegetable, petroleum, mineral or synthetic wax whereas the form of wax could be candles, lubricant wax, sealing wax etx. State of Jharkand v. LA OPALA RG Ltd., (2014) 15 SCC 136.

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Filed under Commercial Law, Type and Form

Arbitration Agreement – Signature is Not a Formal Requirement

Section 7(3) of the Arbitration and Concilitaion Act states that the arbitration agreement shall be in writing, which is a mandatory requirement. Section 7(4) states that the arbitration agreement shall be in writing, if it is a document signed by all the parties. But a perusal of Clauses (b) and (c) of Section 7(4) would show that a written document which may not be signed by the parties, even then it can be arbitration agreement. Section 7(4)(b) provides that an agreement can be culled out from an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement.
Reading the provision it can safely be concluded that an arbitration agreement is provided by exchange of letters, telex, telegrams or other means of telecommunication. Section 7(c) provides that there can be an arbitration agreement in the exchange of statements of claims and defence in which the existence of the agreement is alleged by one party and not denied by the other. If it can be prima facie shown that the parties are at ad idem, then mere fact of one party not signing the agreement cannot absolve himself from the liability under the agreement. In the present day of E-commerce, in cases of internet purchases, tele purchases, ticket booking on the internet and in standard forms of contract, terms and conditions are agreed upon. In such agreements, if the identity of the parties is established, and there is a record of agreement it becomes and arbitration agreement if there is an arbitration clause showing ad idem between the parties. Therefore, signature is not a formal requirement under Section 7(4)(b) or 7(4)(c) or under 7(5) of the Act. M/s Govind Rubber Ltd. v. M/s Loids Dreyfus Commodities Asia P. Ltd., 2015 (108) ALR 735.

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Filed under Arbitration, Signature

Divorce – False Allegations Against Husband

In the case of Maya Devi v. Jagdish Prasad, 2007 (67) ALR 129, it was held that not only the physical cruelty which can be a ground for a divorce but the mental cruelty also constituted a good ground for divorce. In the case of Sadhana Srivastava v. Sri Arvind Kumar Srivastava, 2005 (61) ALR 268, it was held that making a false allegation against the husband of having illicit relationship and extra marital affairs by wife in her written statement constitute mental cruelty of such nature that husband cannot be reasonable asked to live with wife. In such case, the husband is entitled to a decree of divorce. Similar views have been expressed by the Hon’ble Delhi High Court in the case of Jai Dayal v. Shakuntala Devi, AIR 2004 Del 31 in which it has been held that leveling of false allegation by one spouse about the other having alleged illicit relations with different persons outside wedlock amounted to mental cruelty. Rajesh Dwivedi v. Additional Principal Judge, Family Court, 2015 (108) ALR 337.

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Filed under False Allegations, Matrimonial Dispute

Departmental Enquiry-Reasonable Opportunity

In cases where there is no oral evidence adduced and documentary evidence is not proved or exhibited by witnesses, it cannot be read into evidence for proving guilt of the employee. It is for this reason that many unscrupulous employer/establishment/department fabricate documents for proving charge against innocent employee and punish him without proving the same, thus denying a reasonable opportunity to him to defend himself. Sita Ram v. State of U.P., 2015 (1) ESC 178.

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Filed under Departmental Enquiry, Employment Law

Year of Recruitment

The expression ‘year of recruitment’ is used in several legislative enactments in the area of service jurisprudence and has been the subject of judicial precedent. In Harish Chandra Ram v. Mukh Ram Dubey, 1984 Supp (2) SCC 490, it was held that as and when recruitment takes place, the cases of all the candidates including the reserved candidates must be considered according to rules which would arise only when the recruitment takes place. In that context the court observed as under:
“So, as and when recruitment takes place the cases of all the candidates including reserved candidates must be considered according to rules which would arise only when recruitment takes place. Take for instance an hypothetical case. A and B are eligible for consideration and were considered in 1980 for two vacancies and B was found suitable and was appointed to one vacancy in 1982. One more vacancy arose in 1983. In the year 1983, A, C and D were considered. A and D were promoted in 1984. The recruitment years are 1982 and 1984, and not 1980 when one vacancy existed or 1983 when two vacancies existed. So each year is not the year of recruitment. As and when recruitment takes place in a particular year, it would be the year of recruitment.
It is thus clear that the recruitment year is the year in which the recruitment takes place, but not each three successive years in which the vacancy exists. Raeesul Hasan v. State of U.P., (2015) 2 UPLBEC 1441 (FB).

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Filed under Employment Law, Year of Recruitment

Ratification – Principle of

The expression “ratification” means the making valid of an act already done. This principle is derived from the Latin term “ratihabitio mandato aequiparatur” meaning thereby “a subsequent ratification of an act is equivalent to a prior authority to perform such act.” It is for this reason; the ratification assumes an invalid act, which is retrospectively validated.
The expression “ratification” was succinctly defined by the English Court in one old case, Hartman v. Hornsby, 142 Mo 368 44 SW 242, as under:
“Ratification is the approval by act, word, or conduct of that which was attempted (of accomplishment), but which was improperly or unauthorisedly performed in the first instance.”
In Maharashtra State Mining Corporation v. Sunil, (2006) 5 SCC 96, it was held that ratification by definition means the making valid of an act already done. It assumes an invalid act which is retrospectively validated. National Institute of Technology v. Pannalal Choudhury, 2015 (3) ESC 377.

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Filed under Employment Law, Ratification

Loss of Pay – Based on Principle of “No Pay No Work”

Loss of pay is based on the principle of “no pay no work”. It is an action quite separate and distinct from a disciplinary proceeding, which may visit an employee for such misconduct. In State of U.P. v. Madhav Prasad Sharma, 2011 (2) SCC 212, the Apex Court was considering the question whether the employer who had already sanctioned the leave, albeit without pay, was justified in terminating the service for the same charge and whether such an action is hit by the doctrine of double jeopardy. The Apex court after noticing the relevant statutory service rules concluded by holding that leave without pay is not a punishment prescribed under the rules and thus, denial of salary on the ground of “no pay now work” cannot be treated as a penalty nor the doctrine of double jeopardy would be attracted in case the employee is inflicted with the punishment of dismissal for the same charge. Purvanchal Bank v. Umesh Prasad Gupta, 2015 (3) ESC 1317.

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Filed under Employment Law, Loss of Pay

Law Presumes in Favour of Marriage – And Against Concubinage

In the case of A. Dinohamy v. W.L. Balahamy, AIR 1927 PC 185, it was held that where a man and woman are proved to have lived together as husband and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage. The court observed as under:
“The parties lived together for twenty years in the same house, and eight children were born to them. The husband during his life recognized, by affectionate provisions, his wife and children. The evidence of the Registrar of the District shows that for a long course of years the parties were recognized as married citizens and even the family functions and ceremonies, such as, in particular the reception of the relations and other guests in the family house by Don Andris and Balahamy as host and hostess-all such functions were conducted on the footing alone that they were man and wife. No evidence whatsoever is afforded of repudiation of this relation by husband or wife or anybody.
In the case of Gokal Chand v. Parvin Kumari, AIR 1952 SC 231, the court observed that continuous cohabitation of woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the court cannot ignore them.
It is well settled that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a long period of time. However, the presumption can be rebutted by leading unimpeachable evidence. A heavy burden lies on a party, who seeks to deprive the relationship of legal origin. Dhannulal v.Ganeshram, 2015 (4) AWC 3539.

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Filed under Civil Law, Presumption of Marriage