Saturday, November 9, 2013

ICL: Law v Lawyers (LITIGATION ?) in the wake/ushering in of 'GLOBALISATION' (Serial)

 July 7
Posted: 03 Jul 2014 06:41 PM PDT
[The following post is contributed by Abhishek Bansal and Stuti Bansal, Corporate Professionals, Advisors & Advocates. The authors can be reached at abhishek@indiacp.comand respectively)

".....may force companies to consider other alternatives such as taking loans from banks instead of accepting deposits."

The new rules, as understood, has the one basic objective of safeguarding and protecting the interests of the investing public, mostly in the category suffering from ignorance or imbecility , having no capacity to know the nitty-gritty or not-so-obvious risk factors. Even if the "other alternatives" were to be resorted by the invested companies,that would have the same frightful consequences; the only difference being it is the banks and stakeholders to whom the same risk factors would be passed and be faced with.

As regards the mentioned requirements of filing returns or documents with the ROCs, without the machinery of a sophisticated kind in place to constantly scrutinize and keep monitoring as a continuous exercise,it seems to be a mere empty formality, so called paper-tiger, with no real purpose to serve.

Similarly , the requirement
"to obtain credit rating at regular intervals during the tenure of the deposit", is at best, of nuisance value, again with no real purpose to be served.

These , noted to have been simply glossed over in the write-up, nonetheless , in one's perspective, do call for a rethinking and drastic modifications of the new rules, seemingly framed with no insightful examination of the intricate implications.

June 21 

Consttution of India  X Its Law Officers


Sec 56 of Contract Act

The Supreme Court on Frustration and Statutory Contracts

In its recent judgment in Mary v State of Kerala, the Supreme Court has considered the scope of section 56 of the Contract Act, 1872, and its relationship with statutory contracts..

The Court’s reasoning is that since Rule 5(15) authorised the State to forfeit the deposit for non-performance, the contract had made provision for non-performance, unlike in the cases cited to it by counsel for the appellant. With respect, it is submitted that this cannot be correct: the non-performance on which the frustration argument is founded is not the refusal to pay the remainder of the purchase price but the supposed inability to run the shop..

The view of the writer casting aspersions on the correctness of the conclusion reached by the apex court cannot be faulted to be illogical; if pursued in depth might certainly result in a better view being taken.

The subject contract has come to be looked upon, also specially referred to, as a ‘statutory' contract. Also, special significance or importance, though, in one’s view  not at all warranted, has sought to be attached to the ‘rule (s)’ framed by that authority. Inferably, the reason behind such thinking is that one of the parties happens to be a so-called ‘statutory’ authority. Whatever that be, the intriguing question that craves for a righteous answer is this : - Why that should make any difference to giving effect to a provision of the Contract Act , both in letter and spirit, to a transaction, which is purely a ‘commercial’ transaction.

Incidentally, in modern times, there is no gainsaying that the concept of ‘government’ (so also, the attendant ideology of ‘good governance’ itself) having been subjected to a violent change- that is, the activities of the government having been pathetically but increasingly ‘commercialised’- why the need for making any such hypothetical distinction, based on faulty logic?

Law experts may wish to so reframe the foregoing proposition as considered necessary, before venturing to deliberate at length.     


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 The Aliakmon and Title to Sue: a recent Bombay decision

None can readily disagree with the point made in the initial reaction posted.
Looking back, one would have thought that citing,- more as a force of habit, or flight of fancy,  than anything else, foreign case law -e.g. foreign HL's or QB's, be it of direct relevance even remotely, or not, for readily infer able sound reasons, was almost given a bye-bye / fond farewell. In one's perspective/ sincere view, any such write-up trying to analyzing or understanding Indian cases in the light of foreign cases, equally so even in court practice, could, besides serving no useful purpose, at best help in muddling up independent understanding of the legal position back home.

Why to blame judges? It is lawyers who are supposed to function as  effective catalysts in law- / case- law - making. If so, it is they who should desist from/have got cured of the irresistible decades- old-itch, doing so. For, though as someone said in a lighter vein, but in reality itself, if at all it is the Bench alone who could have a pardonable excuse for being ignorant of, any law (or all laws), more so of case law. Any possible counter view?


Globalization and the Indian Legal Profession
For Ready Reference >

The Harvard Law School Program on the Legal Profession has been conducting an extensive study called Globalization, Lawyers, and Emerging Economies (GLEE), which examines the changes occasioned to the legal profession in various countries such as China, India and Brazil due to the effects of globalization.

As part of this effort, a team of researchers undertook studies on the Indian legal profession, and the topics covered range across litigating lawyers, corporate law firms, in-house counsel, legal education, legal process outsourcing and several other related topics. While the end product is expected to be presented in the form of an edited volume, some of the papers are now available on an SSRN Research Paper Series launched by the Program.

The following papers are available:

3.         Pro Bono and Corporate Legal Sector in India by Arpita Gupta;

4.         India's Grand Advocates: A Legal Elite Flourishing in the Era of Globalization by Marc Galanter & Nick Robinson. In this post on the Law and Other Things Blog, Nick has an interesting take on the paper and his experience working on the project; and

More papers are likely to be added to this series in due course. 

C > wprt  3. & 4 above <
Reaction (impulsive)> On a quick glance, felt to be a timely Feedback this. May prove to be exclusively useful to legal fraternity,- particularly to new entrants having a true passion for 'knowledge'- the concept to be understood in its ideal, if not ideological, original meaning,- coupled with a desire to think and act on 'constructive' lines.As such, therefore,it requires to be looked upon and used, to begin with,as a material made available on a silver plate,for helping an independent study or research, or by whatever name one may call it.So that,could serve the obviously intended purpose of catalyzing more 'sharing', objectively, by anyone,- not merely experienced and eminent others in the field. With a sincere aim of attempting to bring about an awareness, nay awakening, for the betterment of the presently very much lacking "professional efficiency / excellence" (in the profoundest sense),and more importantly,from the larger societal/sociological view point.  

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