(1) The power exercised by the proper officer under Section 110(5) of the Customs Act, 1962 in directing provisional attachment of the bank account of…
| Posted on: March 24, 2024 |
What is the law on the entitlement of share to the children of void or voidable marriages under the Hindu Succession Act & Hindu Marriage Act?
The provisions of the HSA, 1956 have to be harmonised with the mandate in Section 16(3) of the HMA, 1955 which indicates that a child who is conferred with legitimacy under sub-sections (1) and (2) will not be entitled to rights in or to the property of any person other than the parents. The property of the parent, where the parent had an interest in the property of a joint Hindu family governed under the Mitakshara law has to be ascertained in terms of the Explanation to sub-section (3), as interpreted above
| Posted on: March 10, 2024 |
What is “admission” and “admission by party to proceeding or his agent” under the Indian Evidence Act, 1872?
Admission is a conscious and deliberate act and not something that could be inferred. An admission could be a positive act of acknowledgement or confession. To constitute an admission, one of the requirements is a voluntary acknowledgement through a statement of the existence of certain facts during the judicial or quasi-judicial proceedings, which conclude as true or valid the allegations made in the proceedings or in the notice
| Posted on: March 10, 2024 |
What is the scope & power of contempt jurisdiction vested in the Courts to punish for contempt? Can the Court, in contempt jurisdiction, go beyond the order alleged to be flouted & can it reopen decided issues?
The Courts must not, in exercise of the contempt jurisdiction, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self-evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or willful violation of the same
| Posted on: March 10, 2024 |
Is a contract in favour of a minor enforceable or is it void, even when it is for the benefit of the minor?
As per the Contract Act, 1872 it is clearly stated that for an agreement to become a contract, the parties must be br competent to contract, wherein age of majority is a condition for competency. A contract in the name of a minor cannot be held valid, simply because it is in the interest of the minor unless he or she is represented by his or her natural guardian or guardian appointed by the court.
| Posted on: March 10, 2024 |
What are the essential elements to constitute an offence under Section 3 of the PMLA?
Mere negligence is not sufficient. Intent is essential to constitute an offense under Section 3 of the PMLA. In the absence of prima facie material to substantiate that the third party person knowingly facilitated the transfer of proceeds of the crime, no presumption can be drawn that such person was involved in money laundering as stated under Section 24. The burden is on the prosecution to prove otherwise
| Posted on: March 10, 2024 |
Can a person who is not directly engaged in criminal activity, but who is involved in some other capacity, be liable under the PMLA Act?
The short answer is that the sweep of Section 5(1) of the PMLA Act is not limited to the accused named in the criminal activity relating to a scheduled offence. It would apply to any person (not necessarily being accused in the scheduled offence), if he is involved in any process or activity connected with the proceeds of crime. Such a person besides facing the consequence of provisional attachment order, may end up in being named as accused in the complaint to be filed by the authorised officer concerning offence under Section 3 of the 2002 Act.
| Posted on: March 10, 2024 |
What is the power of the Court to refer a dispute to arbitration if there was no arbitration clause in the agreement or if the dispute is of such a nature that it is not arbitrable?
The Arbitral Tribunals are private fora chosen voluntarily by the parties to the dispute, to adjudicate their disputes in place of courts and tribunals which are public fora constituted under the laws of the country. Every civil or commercial dispute, either contractual or non-contractual, which can be decided by a court, is in principle capable of being adjudicated and resolved by arbitration unless the jurisdiction of the Arbitral Tribunals is excluded either expressly or by necessary implication
| Posted on: December 30, 2023 |
Can a co-op Housing society levy mandatory charges for cultural activities?
There is no restriction on the Society to set up a cultural fund and collect the contribution for such a fund. There is no restriction that such a fund to be created only from profit earned by Society. The only prohibition for levy and collection of charges is that it should be approved by the General Body and said charges should not contradict the provisions of the Act, Rules and Bye-laws of the society
| Posted on: November 27, 2023 |
What is malafides in the jurisprudence of power?
Malafide exercise of power does not imply any moral turpitude. It means exercise of statutory power for “purposes foreign to those for which it is in law intended”. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law.
| Posted on: October 4, 2023 |