INTRODUCTION

Let me start by saying that what do we understand by the term constitution; it is nothing but a blueprint of all the other laws. So, while we contour other laws it is always very necessary to get back to the basic law from where all the other Acts stems. This helps in understanding the principles on which our other Acts are to be made, and helps us in framing it. Now, the theme of the paper can simply be said a proximity between the constitution and the Intellectual Property Rights (IPR). It is very remarkable to understand this interface between the constitutional law and IPR and then how the recognition of court with respect to these rights by the judiciary, shows actually a very diverse perspective. The paper would look into the importance of freedom of speech and expression and an overview of the copyright act. Further a relationship which could be drawn between freedom of expression and IPR, and with that in mind that paper would take dip into some of the ancillary issue in relation to this.

There is no doubt that Freedom of speech and expression is one of the utmost important rights and that is something which underlines the basis of any democratic country. There is no polity which can work in Isolation with freedom of speech and expression. It serves many purpose firstly, it helps an individual to speak the truth about the polity and helps the public to make a reasonable choice.[1] Secondly, it brings the confidence in government, since you are not curbing the individual right to speak.[2] Thirdly, it bridges a gap between a social change needs to be brought in and the acceptance of the same from the society.[3]

Therefore, we always see that Freedom of speech and expression which finds its place in most of the International convention and our Constitution is an integral part of any democratic setup.[4] Indian constitution talks about the Liberty which has got a widen horizon to include this freedom of speech and expression. It could also be extended to give a person a protection of what he says and right that no one shall copy him against his will. Before, taking a dip into the interface between the IPR and constitution, now let’s turn our attention to look at an overview of copyright Act. 

Copyright is a property right given to an author for his original and novel work in any tangible form, which gives the proprietor right over that property so as to use it any form. They have authority to reproduce or not produce it or give somebody else the right to reproduce.[5] Thus this right includes a wide range of expression running from literary to artistic work.[6]  Thus a person who has a copyright over that property gives him the right to use that property in the way it warrants.[7] The only exception being that fair use of that material is allowed.  Therefore, we understand that copyright is an expression and it could be inferred that its protection stems from the Freedom of speech and expression. and this is something which the researcher will go through the course of this paper.  Recently, with the advent of media law which also stems from Article 19 of the Indian Constitution, there is seems to be a new artery over the protection of the IPR and constitution.

Interface between IPR and Freedom of Speech and Expression

As, we have already seen that there is definitely nexus between freedom of speech and copyright. Now before elaborating on it let us see that how the timeline of both the aspects has been quite close to each other. Then we will move to the understanding of both these laws and there nexus.

Development of Freedom of speech & expression Juxtaposes with IPR

The copyright law saw its development through with the different method of expression. At the time of the invention of printing machine we saw a lot of development in the concept of freedom of speech and expression.[8] It was thought that this freedom of expression is of no good use if they don’t have the right of publication.[9] But, with publication came piracy and that was the mischief which required an attention. SO, now the pirated copies of the book were being sold, so we needed a law which needs to curb that. The ultimate goal of every democratic setup is that no idea should be left un-heard.[10] However, that is not the only aim; the thing is that one should promote that individual to come up with an idea. The fascinating part is that with the increasing horizon of Article 19 we saw the gradual awareness of copyright Act. The patent law also saw its development during the same time. It is just a food for thought the more we understood the concept of liberty, we gain more clarity on the freedom of expression and from there we saw is that real growth in Intellectual property rights.

The aim of the IPR is to maintain the individual right with that of the public, with that in mind the copyright law came into existence. The point here was simple it was canvassing the importance of giving recognition to person over his work. The reason apart from getting an appreciation over the work is that you get an inspiration to right more be more creative and novel with your writings. As the author will be aware that there writing are now something which reflects them so they will try to come up with something better, and in addition to that there is always a monetary benefit.

Therefore, with the beginning of different medium of publication running from printing, film, music, cinema and other, the way of expression has been changed and what we see is that in the same line the copyright also extend to these mediums.[11] The Indian copyright at earlier used to be governed by the British legislation, however post independence things started to change with India being a signatory to international convention.[12] In addition to that UDHR and ICESR also talks about the protection of artistic right.[13] Further all of those international treaties canvassed for Freedom of expression and we have seen that both laws have their growth at the same time frame.[14]

 Nexus between IPR and Freedom of Expression

It need not be further focused that there is nexus between both the concepts, however what needs to be comprehend here to what length this relationship extends. The US constitution first amendment talks about the Freedom of speech and the court has said that the purpose is that all the idea should be preserved and there should not be any monopoly.[15] This give the citizen vigor to express their views, which is been protected by the Freedom of speech and the manner in which it is to be protected is been governed by the copyright. The US constitution expressly points out for the protection of artistic, literary and scientific work.[16]

There is no doubt that copyright law is nothing but an extension of the Right of freedom of speech and expression, if a person expresses something in the form of an artistic work, then that work become its property and then it warrants for protection under Article 300-A, which is been ensured by copyright Act.[17] The copyright gives the author right to take out an economic benefit over his piece of work. It has been argued by many that copyright is imposing a restriction on freedom of speech because it is not allowing the express something, just because it has already been expresses

The term expression cannot be restricted to mean only with respect to work covered under copy right Act. Expression in its horizon includes the technological invention, scientific innovation, and any design. All these innovations are the way in which the scientist expresses themselves and there is an evident need to protect it, which is been ensured by Patent Act. When we understand that all these law stems from a fundamental right, it gives us an impression that there is strict need for protection to the originator of the work. Otherwise the world has seen many instances where the original inventor is not been given the royalty of his work.

The copyright protection is given on the expression of ideas rather than on the ideas itself, because it is an expression of ideas, which makes it a tangible property and that warrant for protection. It has been argued by many that the copyright law plays a dual characteristic where on the one hand it canvasses for the freedom of expression; on the other hand it is also imposing a restriction, because it is not allowing the other to express something just because it has already been articulated earlier.[18] However, it cannot be seen as an imposition on freedom to express, since the freedom is to express their ideas and not copy that of other. Because the basis of law is “Though shall not steal”.[19]

Under the Act, it won’t be violation of copyright work if it is been produced under the ambit of “fair use”. However, Article 19 calls for reasonable restriction under which a restriction can be imposed for the purpose of ‘morality’. When we look into the concept of “fair use” we understand that it is line with the reasonable restriction of Article 19.[20] So, we see here that how the freedom of expression has also enshrined in it the concept of fair use.

Recognition of Intellectual Property Rights under the Constitution

The researcher at this juncture would like to throw some light on how the recognition of Copyright and IPR has been followed under our constitution, by the court. This recognition of the IPR rights from other constitutional provision makes it an organic law like the constitution.

The Judicial Approach

The researcher under this would like to point a case of Entertainment Network India Ltd. (ENIL) v. Super Cassette Industries Ltd^[21]. But before going taking a dip into that case, it is important to turn our attention to under the definition of the copyright and Patent. Both of these Act, gives the owner of the holder of this intellectual property an exclusive right over that property and the owner has the right to transfer this right it to anyone it want.^[22] Therefore, it is a kind of a contractual right and from this logic the court has went ahead in the ENIL case. The court opined that:-

“The freedom to contract is the foundation of economic activity and an essential aspect of several Constitutional rights including the freedom to carry on trade or guaranteed under Article 19(1)(g) and the right to property under Article 300A of the Constitution of India.”^[23]

It is important to note here that the court has not brought the IPR under the Freedom of expression, according to the researcher this could be because Freedom of expression horizon is wider. All these Acts have put certain limitations on the owner of the Intellectual property, which would be very hard to be justified if these rights would owe their origin to the Article 19(1) (a).   Moreover, the court also took into its ambit Article 300(A), which kind restricts the right, because it is a legal right.[24] The reason is that in India is a socialistic right and sometimes these rights gives too much power in the hand on the owner of the property, which makes it difficult for the state in administration of the state. Therefore, the clause like compulsory licensing, where the government takes the property in the interest of the public owe their origin from this clause. The court in other cases also has said that these are to be kept wide, however in case of public interest certain restriction could be imposed.^[25] Therefore, we see that how smartly the court has justified the various provisions of the various Intellectual properties Act and has also left scope for their further development.

The Clinical Trial Data

It is very important to understand at this juncture to understand that with the acceptance of the nexus between the constitution and IP rights. There are two things which can be inferred one is that the apart from the Act, the court has recognized other provisions which call for the putting the limitation on the IPR. On the other hand this also has led to the understanding of the intellectual property to a new zenith.

At this juncture the researcher would like to point take a dip into the other issue whether the clinical trial data, can be given a separate Intellectual property. It shall be understood that most of the work of pharmaceutical industry is based on the Research and Development, and there is plethora of Data which they collect. ^[26] With time the new medicines owe its origin to other chemicals, therefore the amalgamation of the trials can lead to new medicines.^[27] The data collected for the earlier chemicals, needs some protection because it had been used in future course.^[28] There is a lot of money is also been spent in the R&D of that work.^[29] There is also one major implication of the Data Trial, it is that if the generic industry comes up for the approval of the medicine with slight change in the procedure and relying on the data of the pre-clinical trial of the patent medicine now they cannot do.^[30] Therefore, it will delay the entrance of the generic industry.  This in particular could be little harmful for the country, but then again on Article 300 A, polity can put limitation, under the ambit of the public interest.

Therefore, there has always been a huge hue and cry for the protection of these Data. It is understood, to be the extension of the patent, however it is not. ^[31] Article 39.3 of the TRIPS agreement, talked about the protection of the clinical Trial Data.^[32] Though, it has been argued by the various scholars that, what this provision requires is that there shall be the protection to be provided to all this data, but the company need not be given the exclusive rights. However, one thing is acceptable which is that this data should fall in the ambit of property under Article 300 A, as understood in the ENIL case. Therefore, clinical protection is something which needs to be given.

The other provisions

The other provision which gives the power to the union to enact laws in respect to IP rights under the constitution are under Entry 49 of List I of Schedule VII. Article 51 A (h) talks about the development of the scientific temper, and as has been mentioned before one of the objective of the IP regime, in this case say for giving the patent it promotes the scientific fraternity for the promotion of new invention. In the word of out Late Prime Minister Jawahar Lal Nehru, it is a process through which you challenge the present notion and try to bring in the new evidence by doing trials to disapprove the earlier notion and bring the change.^[33] The other facet of the scientific temper is that it has to develop the society morally.^[34] This is something which is been reflected in the IPR provisions and i.e. the promotion of the science. The other provision which also calls for IPR protection is Article 48 of the Constitution which calls for Agriculture and animal husbandry on scientific lines.^[35] Therefore, we see that the IPR protection is something which can be gathered from our constitution itself.

Contouring the IPR provisions in Light of the Constitution

The researcher has already pointed out that what is the importance of the project, because the recognition of helps us understand the various steps which is been taken by the polity and the judiciary, under the ambit of the constitution. At this juncture, the researcher would like to look into the some of the quandaries of IPR and the approach of judiciary in resolving it juxtaposes to the constitution of India. To understand this researcher would like to point out the Novartis AG v. Union of India[36] (Novartis).

Novartis case and its nexus with the Constitution

It is important to understand some of the important aspect the India is a developing country, so where on the one hand it promotes for liberalization and entry of the private sector and development of its market. By that it means that the promotion of better R&D and new inventions, however on the other India is a socialistic country and that means that a special care for the need to be taken, because they are three problems which an Indian citizen has to face one is that of affordability, availability, accessibility. Therefore public health is a very important function which needs to be performed by the state.[37] Moreover, the apex court in their judgment has interpreted Right to Life under Article 21 of the constitution which includes right to health and medical care.[38]

At this juncture let us turn out attention to the Novartis case, wherein the constitutionality of section 3(d) of the Indian patent Act, 1970 was challenged.[39] This was a case of a drug named Glivec, a critical drug used for the treatment of leukaemiaon. Now, there is another drug which is a modified version of the earlier drug, on that a patent was being filed saying that it has an enhanced efficiency.[40] The patent was rejected and the case came up before the apex court. Firstly, section 3(d) of the 1970 Patent Act was challenged as being unconstitutional under Article 14, on the ground that it is arbitrary, illogical and vague.[41] The court said that it is not arbitrary or vague and it has been incorporated for a special purpose so as to prevent ever greening of patent and that is something which is in consonance with the TRIPS agreement.[42] Secondly, the court rejected the argument that it has increased the efficiency of the drug.

At this juncture it shall be noted that it is only an ostensible reason which has been given by the court, we need to go beyond the boundaries and understand the real reason, for that we need to comprehend the Madras High Court judgment. It was pointed out that the reason why section 3 (d) is because of the ever greening of patent and the purpose is to ensure that the purpose of the state which is to maintain the public health. Without going into the profundity of the judgement, there seems to be little doubt that this judgment owe its origin from the constitution, which imposes a duty on the state to ensure that the people get the medicine at the reasonable price. The drug was of a Lakh per month and the generic drug was nine-tenth less than the original and if that drug would have been rendered illegal because of the grant of patent. So, the impact of it could easily being imagined. Therefore, we see here that how there has been a nexus been drawn between the paten Act and the constitution so as to shape the IP rights.

Constitutional Rights and copyrights Law

The researcher at this juncture would like to deal with two things firstly, the copyright amendment under the line of the constitutional provision, and secondly, what are the inherent limitation which can be contoured because of these provisions.

Effect of constitutional provision under copyright Act

The copyright brought an amendment under which an adaption of the work in a format designed for those disable people who has a visual impairment. It has been said by many scholars that it is against the constitution since it discriminates against those who can read Braille and those who cannot.[43] It has been argued by many scholars that it is against the Article 14 and Article 21 which calls for equal treatment and juxtaposes to that every shall have right to access to all the materials in there formats they want. However, because of the impairment certain class of people devoid of that knowledge.[44] Though the amendment has increased the scope of those people who are having disability, however there still seems to be a need to for enhancing the provision n light of the constitutional provision.

Inherited Limitations

One of the inherent limitations which the researcher would like to mention here is that of in case of Rape Victims. It is necessary to keep the name of the victims anonyms so as to ensure that no harm is been caused to them as they are already facing a lot of problem in the society. Media rights which can be extended to copyright, comes also with certain limitations i.e. what they are reporting should not harm the person concerned.[45]  Therefore, in line with that only the IP rights have inherent limitations when it comes in nexus with public interest.

Conclusion

On the raison d’être of the above discussions, is that it discloses the in and out of the Intellectual property right juxtaposes to the constitution. The meticulous study lets us understand that intellectual property has evolved manifold over the progression of time due to the late advances in the continuous procedure of globalization. However, in amid of  all that there has been constitutional provision to contour it.

Freedom of speech and expression is the basis of any developed government, it is one of those rights you have being born on this earth and the only thing which the state does is that it puts restriction on those rights. Therefore, copyright is an extension of the former rights therefore that being inherent rights so is that copyright. Other Intellectual property rights also are like the extension of the freedom of expression therefore, all those rights are also inherent rights of the originator. These rights promote the originator of the intellectual property to come up with a good work and that is the duty of the state because it helps in the economy of the state.

The court has taken to breed this IPR law from Article 19 (g) by pointing out that it is a contractual right. According to the researcher the reason which can be attributed for this step by the court is that Freedom of expression has a wider horizon and that would have created a greater quandary in shaping the IPR provisions. When we talk about copyright law it is only the expression of ideas which has the copyright protection, however when we talk about the ambit of Freedom of speech it might argue about the protection of ideas, as what amounts to expression is something which is a matter of moot.

Article 300 A of the constitution talks about the property and the court has said that in that property includes Intellectual property, and from there it can be argued to bring in the ambit of IPR clinical trial data. However certain limitation can be called for in the public interest.

In summary the interplay in the constitution and the Intellectual property rights has a played a major role in the jurisprudence of comprehending this law. Though the IP rights have been there for now more than two decades, however the recognition of it in today’s time is more than ever. IP rights stems from the constitution which makes it an organic law like constitution and give a breathing space for the development. One should always remember that it is not called Intellectual property Law but Intellectual property Rights and the shaping of it should be done having an holistic approach keeping in mind the constitutional mandate.

Disclaimer: Please note that the content of this blog post is the original work of Advocate Anil Kumar Mehrotra and any views or opinions expressed are his own. While we have made every effort to ensure the accuracy and completeness of the information provided, we do not guarantee its authenticity or reliability. We would like to make it clear that we will not be liable for any act of plagiarism committed by the author. The author alone takes full responsibility for the originality and authenticity of the content provided in this article. We encourage our readers to exercise their own discretion and judgment when using the information provided in this article. If you have any questions or concerns, please feel free to contact us.

[1] The law of Lexicon (3^rd edn, 2012) Vol. 3, P.1143

[2] ibid

[3] ibid

[4] Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR), Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR), The Indian Constitution, 1950; and other various International Human Rights Organ.

[5] The Indian Copyright Act, 1957, S 14. It  deals with the meaning of “copyright” and provides that it is an “exclusive right” A copyright owner has exclusive right : (i) to copy the work; (ii) to issue copies of the work to the public; (iii) to rent or lend the work to the public; (iv) to perform, show or play the work in public; (v) to broadcast the work or include it in a cable programme; (vi) to make an adaptation of the work or do any of the above in relation to an adaptation.

[6] Madhavi G Divan, “Copyright” in Facets of Media Law(Eastern Book Company, Lucknow 2006) 9

  [7] The Indian Copyright Act, 1957, S 51. It identifies the varieties of acts, which infringes copyright and other rights of the owner created by the Act. Accordingly copyright of a work shall be infringed when any person without a proper licence from the owner : (a) does anything, the exclusive right to do which is conferred upon the owner by the Act; (b) permits to use any place for the performance of a copyrighted work in public for profit, unless he was not aware or had no reasonable grounds for believing that such performance would be an infringement of copyright ; (c) makes infringing copies for sale or hire. or selling or letting them for hire; (d) distributes infringing copies either for the purposes of trade or to such an extent as to affect prejudicially, the owner of copyright; (e) by way of trade exhibits in public; (f) imports infringing copies, except for the private and domestic use of the importer.

[8] Dr. Sreenivasulu N.S.& Somashekarappa Freedom of Speech & Expression and the Issues of Intellectual Property and Copyright

 <http://manupatra.com/roundup/370/Articles/Freedom%20of%20Speech.pdf>

[9] Romesh Thappar vs The State of Madras AIR 1950 SC124

[10] W.R. Cornish. Intellectual Property, (Universal Law Publishing  Co. New Delhi 2001)21

[11] ibid

[12] The Berne Convention for protection of Literacy and Artistic Works (Paris Act, 1971) and UDHR.

[13] UDHR art 27; Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author; International Covenant on Economic and Social Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICESR), art 15,To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author

[14] It is to be noted that the copyright law had continuous amendment with the latest of that being in 2010 in the same manner the scope of Article 19 has been developed over the period of time. 

[15] Associated Press v. U.S. 326 US 1

[16] The United States Constitution, 1789; art 1, sec 8.

[17] Prashant Reddy, ‘Article 300A of the Constitution: A constitutional right to ‘data exclusivity’?’(De-Coding Indian Intellectual Property Law, Spicy IP May 1 2010) < http://spicyip.com/2010/05/article-300a-of-constitution.html> accessed 1 November 2015

[18] VK Ahuja, Intellectual Property Rights in India (Volume 1, Lexis Nexis, Butterworths Wadhwa, 2009)

[19] ibid

[20] The Indian Copyright Act, 1957, S 52; This section calls for the concept of “Fair use”

[21] CIVIL APPEAL NO. (2005) 5114

[22] The Indian Copyright Act, 1957, S 14

[23] Entertainment Network India Ltd. (ENIL) v. Super Cassette Industries Ltd CIVIL APPEAL NO. 5114 (2005)

[24] Reddy (n 17)

[25] Penguin Books Limited v. India Book distributors and ors 1985] AIR 29(DEL); R.G. Annand v. Delux. [1978]AIR 16131(SC)

[26] Animesh Sharma, ‘Data Exclusivity With Regard To Clinical Data’(2007) 3 ILJT 82

[27] Ibid.

[28] K. Satyanarayana, S. Srivastava &N.K. Ganguly, ‘Data protection issues in India’ (2006) Indian J Med Res 723

[29] G. Lee Skillington, ‘The Protection of Test and Other Data Required by Article 39(3) of TRIPS’ [2003] 1 (8) NW.J. INT’LL. & BUS

[30] Satyanarayana (n 28)

[31] Sharma (n 26)

[32] Agreement on Trade-Related Aspects of Intellectual Property Rights (15 April 1994), art 39.3; “Members, when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use. In addition, Members shall protect such data against disclosure, except where necessary to protect the public or unless steps are taken to ensure that the data are protected against unfair commercial use.”

[33] Jawaharlal Nehru, the discovery of India (Penguin India; New edition, 2008) 152: “[What is needed] is the scientific approach, the adventurous and yet critical temper of science, the search for truth and new knowledge, the refusal to accept anything without testing and trial, the capacity to change previous conclusions in the face of new evidence, the reliance on observed fact and not on pre-conceived theory, the hard discipline of the mind—all this is necessary, not merely for the application of science but for life itself and the solution of its many problems.” 

[34] Mahanti Subodh, ‘A Perspective on Scientific Temper in India’ (2013) 1 JST

[35] The Constitution of India 1950, art 48

[36] Civil Appeal No. (2013) 2706-2716

[37] The Constitution of India 1950, art 38 and 39.

[38] Consumer Education and Research Centre v. Union of India AIR 1995 SC 922.

[39] The Indian Patent Act, 1970 sec 3(d):- the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.

[40] Novartis AG v. Union of India Civil Appeal No. (2013) 2706-2716

[41] ibid

[42] ibid

[43] N.S. Sreenivasulu Law Relating to Intellectual Property( Partridge 2013) 432

[44] Somashekarappa (n 8)

[45] Madhavi G Divan, “Copyright” in Facets of Media Law(Eastern Book Company, Lucknow 2006)9

The post Constitutional Perspective on the Intellectual Property Rights and Development appeared first on LexForti .

OVERVIEW

Arbitration in India has evolved a great deal ever since the inception of the Arbitration and Conciliation Act in 1996. There are multiple developments that are taking place in the world of Arbitration and one such advancement is the acceptance of Third-party funding by numerous legislations, which has managed to take the world by a blizzard. This concept refers to the act where the funder, a party who is not interested in the disputed matter makes an investment in the arbitration, and later reaps the benefit of such investment made. In contrast to Third-party funding being a stepping stone in providing justice to parties in need, there were also multiple questions raised regarding the breach of confidentiality of the proceedings, dilution of the power exercised by the financed party due to the funder, creation of trouble by encouraging vexatious claims, etc. Third-party arbitration funding is like a double-edged sword that has to be utilized with utmost caution as the financer may be tempted to tamper with the process as he is interested in the outcome, but is also often exaggerated thus making it a coin with two sides. Third-party funding is rather a new concept and was adapted by many legislations only recently due to the illegality of the doctrines of maintenance and champerty in common-law jurisdictions in the past. However, despite the worldwide acceptance of Third-party arbitration funding in legislations like Singapore, Hong Kong, etc, India still remains silent in this aspect. Through this research, the current situation prevailing in India will be examined in order to determine whether India is ready for Third-party funding and if there exist some grey areas that need to be given attention. 

INTRODUCTION

Since the 1996 enactment of the Arbitration and Conciliation Act, arbitration in India has progressed significantly. There are several advancements in the area of arbitration, one of which is the recognition of third-party funding by numerous legislations, which has managed to engulf the entire world in a blizzard. This notion relates to the conduct of a funder, who is a party uninterested in the dispute, investing in the arbitration and afterward reaping the benefits of that investment. It can be observed commonly in commercial and investor-state arbitrations. The common models observed in Third-party funding[11] are as follows:

• Where a trust is created and the proceeds of the dispute go to the trust containing the funder as a beneficiary
• Where the claimant assigns the profits of the claim(s) to the third-party funder; or
• Where the claim(s) are assigned to the funder.

International arbitration, which has become the go-to method for resolving cross-border issues, cannot be ignored. Despite the fact that it is the favored method of conflict settlement, the process’ high expenses are unavoidable. The Apex Court itself identified these outrageous costs as one of the major reasons responsible for the hindrance to the growth of arbitration[12]. Third-party funding in Arbitration faced growth due to the possibility of being able to provide everyone an equal right to access justice coupled with the unhidden fact that arbitration is a costly affair and that the costs can reach the sky.

Third-party funding is rather a new concept and was adapted by many legislations only recently due to the illegality of the doctrines of maintenance and champerty in common-law jurisdictions in the past[13]. Maintenance referred to the involvement of a third party that was unrelated to the proceedings and someone who did not have a locus. Champerty referred to an agreement where the proceeds were shared between the party involved with the third party who aided in the claim’s enforceability. The evolving times call for change and this can be observed in the way the doctrines of maintenance and champerty were slacked with[14]. However, despite the worldwide acceptance of Third-party arbitration funding in legislations like Singapore, Hong Kong, etc, India still remains silent on this aspect. There is no express law against Third-party arbitration funding unless it is done by lawyers as can be understood on a conjoint reading of the Bar Council of India rules. The objective of this research is to bring to light the readiness of India to welcome Third-party arbitration funding with wide arms along with examining it through a judicial lens.

CURRENT SCENARIO THROUGH A JUDICIAL LENS

Common law traditions that are being followed in India have been acquired from the UK but still the doctrines of “maintenance” and “champerty” have not been followed strictly here. In 1939, a stance was taken in Ram Surap v. Court of Wards[15] where it was clarified that as long as the funding for the process was for a portion of the proceeds, it was not illegal. The only condition that needs to be satisfied for a champertous agreement to be void is the ability to prove that it is contrary to public policy, “justice, equity and good conscience” which can be made for improper objects. This stance was also confirmed in Raja Rai Bhagwat Dayal Singh v. Debi Dayal Sahu[16].

The extent of acceptability of TPF in India has been clarified in a plethora of cases one of them being Bar Council of India v. A.K Balaji[17]. It was clearly pronounced that “there appears to be no restriction on third parties (non-lawyers) funding the litigation and getting repaid after the outcome of the litigation”[18]. This was again confirmed by the Court on various occasions[19]. There also exists a provision in the “Civil Procedure Code, 1908” wherein it is permitted to seek security from third parties, which again points towards the acceptance of TPF. Further, the “IBA Guideline” also mentions the possibility of a third party being concerned with any dispute and how it is mandatory for an arbitrator to make disclosures in case there exists any related party.

In India, the absence of contingency fees[20] makes it extremely difficult for the advocates to compete with foreign jurisdictions where they are permitted to do so. The BCI Rules do not permit such an arrangement[21] as this may hamper the professional services furthered by a lawyer. Despite the absence of an open provision for TPF, the amendments in the “Arbitration and Conciliation Act, 1999” and the “Specific Relief Act, 1963” which have ensured that the performance of a contract is mandatory, boost the confidence of the funders and make it prone to increased cases of funding. The statistics in India also point toward the hidden success of TPF in the field of arbitration. This can be said due to the FDI for the previous decade has been at around $456.79 billion[22], which is a huge indicator of the already existing opportunities and the willingness of foreign investors. This coupled with the increase in the number of cases makes it inevitable for TPF to succeed in the arbitration sector as almost every commercial contract has an arbitration clause[23]. Therefore, India shows a huge potential for TPF without the cases having to face any restrictions from the judiciary as well.  

DRAWBACKS OF TPF: SUFFICIENT FOR IT TO BACKFIRE?

The concept of TPF, though accepted explicitly by the law of the land, has two sides to it similar to the way of a coin. However, in order to assess the implementation of a concept, the drawbacks need to be examined intricately in order to ensure that the harm done is not outsized by the benefit caused to the public at large. TPF in a general sense deals with certain drawbacks such as party autonomy and the disclosure related to the independence of an arbitral tribunal.

While these are concerns regarding any arbitration, they become very specific when a third party is involved as it includes multiple variables in the equation. Considering the various milestones that need to be achieved with the concept of TPF in India, where there is no concrete legislation with regards to the same, the following are some parameters that need attention to detail.

DEFINITION  

It is proposed that TPF be allowed for all domestic and international arbitral procedures, as well as judicial procedures actions. Simultaneously, a set of qualifications for financiers, along with any minimum financial standards, must be established. At the outset of regulations, it’s ideal to limit TPF in India to specialist financing companies, that is, companies whose core activity is providing such funds and therefore are not tied to the group’s official adviser in any manner. Considering India’s clear restriction on attorneys entering into conditional fee arrangements[24], the researcher urge that India’s rules only enable participants to pursue funds straight without the participation of their legal counsel. 

DEGREE OF CONTROL

Participants should be entitled to determine the amount of engagement in the conflict they relinquish to the financier, as long as the procedure of the judicial authority is not jeopardized. It is recommended that the concepts of the payment assertion have included the source of financing having minimal authority, particularly over the selection of legal advisers, specialists, and arbiters, and or otherwise, the financial backer and/or its lawyers must be consulted as to regardless of whether a specific settling bid must be acknowledged or if a complaint must be delisted[25].

It is also critical that the financial backer does not constrain or inhibit the attorney’s moral and trustee responsibilities due and owing to the capital provider, and also that, inside the occasion of a confrontation among both the financial backer and the sponsored partner, the litigator is independent to act in this same finest preferences of a capital provider, even though this is disadvantageous to the financial backer. It is advised that certain safeguards be explicitly mentioned in the financing contract and conflict-of-interest guidelines.

CONFIDENTIALITY

The 2019 Constitutional Amendment adds a quasi-clause (Section 42A) that requires the arbiter, arbitral institution, and participants to keep the processes private. Nevertheless, in fact, for a side to use the assistance of an insurer, it is unavoidable that the parties must reveal some sensitive data about the procedures to the funders in enough for the financial backer to assess the claim prior to entering into a financing arrangement[26]. As a result, the “Arbitration and Conciliation Act 1996’s” confidentially rule will need to be changed to enable the release of sensitive material “for the purpose of having, or soliciting, TPF of arbitration from a third-party.”[27] In particular, the sponsor must be required to maintain the secrecy of all arbitration-related data and paperwork.

DISCLOSURE

India’s present arbitration process solely considers a side’s contradiction with an arbiter. When a TPF is engaged, the sponsor as well as the arbiter, or the funders as well as the non-funded side, may have a dispute[28]. As a result, the disclaimer rule must be revised to necessitate the stakeholders and/or one‘s legislators to offer a formal notification to the judiciary and/or presiding judge, as quickly as feasible after financing is supplied or a configuration to offer to finance for the arbitral proceedings, divulging the presence of a TPF agreement and the individuality of the financial backer[29]. This method is the result was in line with the more recent issue of the “IBA Guidelines on Potential conflicts Of involvement” in International Arbitration which requires disputants to disclose any connection among each other, even those with a “direct economic interest in the award to be rendered in the arbitration, such as an entity providing funding for the arbitration.”

ADVERSE COSTS ORDERS

A tribunal may have authority to impose an expenses judgment over a TPF without an explicit authority in the “Arbitration and Conciliation Act, 1996” or the related organizational norms. As a result, courts must be allowed to impose expenses it against funders if the financing contract specifically states that the funders is responsible for unwelcome expenses and the negative costs decision relates to expenses involved during the time when the dispute was sponsored by the funders in issue[30].

IS IT TIME FOR INDIA TO CHANGE?

In an International setting, when arbitration is viewed, there is no harmony as to the propriety of TPF agreements. In comparison, there exists consensus on the arbitration front with regards to TPF. There arises a need to examine the legality of these TPF agreements in various jurisdictions to understand whether India is geared up for the introduction of TPF in Arbitration.

UNITED KINGDOM

 Despite the origin of the doctrines of “maintenance” and “champerty” in this land, they were allowed ever since 1886. It was held by the Privy Council in Ram Chandoo v. Chunder Mookerjee[31] that “TPF agreements are not inherently contrary to public policy”. This was further supported when the Criminal Law Act, of 1967 did away with these crimes and torts of “maintenance” and “champerty”. Over time, the acceptance of TPF agreements was also drastically increased when the Courts’ questioning regarding the same deteriorated. The restriction on contingent fee agreements, on the other hand, remains in effect and has been extended to arbitration procedures as well. As a result, in terms of arbitration proceedings, TPF’s legality cannot be questioned[32].

SINGAPORE

Singapore is one of the major hubs for arbitration and it is still in the process of marking itself as the “International commercial dispute resolution hub”[33]. This was a journey with multiple stops because in the earlier periods, the doctrines of “maintenance” and “champerty” were still in force. It was observed in Otech Pakistan v. Clough Engineering[34] that TPF is against the public policy and this had to be applicable for both litigation as well as international and domestic arbitration. Nevertheless, taking into account the importance of the place in International arbitration, proposals were made for legitimizing TPF which was finally accepted and started to take shape in 2017 through a new framework for TPF which included the “Civil Law (Third-Party Funding) Regulations 2017. Through this framework, it was intended that any funding received, would be from qualified entities who meet certain thresholds and would still preserve the sanctity of the arbitration process for both domestic and international disputes. 

HONG KONG

The following the doctrines of “maintenance” and “champerty” in Hong Kong sure did make it dawdle in the race of TPF development. It was only in Winnie Lo v. HKSAR[35], that it was stated that the extent of applicability of these doctrines has watered down. It further went on to mention that this was only possible due to the public policy considerations. Further, in Cannonway Consultants v. Kenworth Engineering[36], it was clarified that these doctrines seize to apply when it came down to international arbitration. Finally, it was expressly stated that TPF in foreign seated arbitration was valid in Unruh v. Seeberger[37]. 2017 was the time period when TPF was accepted in the field of arbitration and mediation[38]. For the purposes of better facilitation, the Arbitration Rules in 2018 further ensured the express acceptability of TPFs.  

INDIA

It is time for India also to bring amends to the current legislation and ensure that it ups its game in terms of the arbitration sphere. Moreover, better implementation can be assured in India as it can be ensured that the problems faced by other jurisdictions are not repeated. TPF is commonly considered to be in an “embryonic regulatory state”[39]. Because of the legal and moral difficulties connected with TPF, there is currently no definite system in place, excluding handful of territories. The “ICCA QMUL Task Force Report”, published in April 2018, presents authoritative advice on a multitude of topics relating to TPF in global arbitral proceedings and serves as the foundation for future legal changes in states such as “India”, which lack a legal structure.

IS INDIA READY FOR TPF?

Litigation is a never-ending process and is only increasing in numbers as the hours pass by. The whole journey of dispute resolution was never known to be easy on parties. More so, the Covid-19 pandemic certainly did not reduce the burden on the parties by adversely distressing their businesses. This period would certainly be a much-needed boost for the introduction of TPF since it would ease the financial burden on the individuals/businesses while guiding them towards a light at the end of the tunnel after having faced the massacre of shrinking balance sheets and credit.

Formalization alleviates unfavorable concerns about the validity and use of TPF in arbitral proceedings among all sides, namely clients, panelists, arbitral tribunals, and financial backers, as shown in statutory revisions in Hong Kong And Singapore[40]. The proposed changes to the “Arbitration and Conciliation Act 1996” permit this same utilization of TPF in dispute resolution, which include specifying the context and impact of the regulations, forming a system that will improve with a rigorous process to settle conflicts and desire to engage, and constructing a disclaimer responsibility, will help India’s dispute settlement sector grow. After the famous “BALCO judgment in 2012”[41], India’s judicial system is becoming lesser intrusive, giving more attention to the arbitration proceedings program’s legitimacy, bringing forth a fresh, pro-arbitration legal climate. Nevertheless, prior to starting any of the others, the Indian administration should convene an experienced group to do a viability assessment on the extent of TPF’s growth and development in India, as well as the potential advantages in terms of ensuring fairness as well as the regulation problems.

This is especially true in India, where it is unclear to forecast exactly the legal environment would regard TPF, notably in terms of overseas capital management (within the context of its “Foreign Exchange Management Act, 1999”). It is crucial to determine if the financing of a claimant is considered overseas straightforward capital or borrowing. Because, in actuality, financing a complaint can be done in any way and funders can have any organization, determining whether it should be controlled is a challenging task at this time and requires further research.

Meanwhile, India’s politicians will have to choose between a harsh stance and this gentle method used by “Singapore and Hong Kong”. In the writer’s opinion, a gentle method would have been the best way for Indians, certainly at first. It is self-evident that legislation has to be rational and appropriate to the real hazards in the issue in an attempt to function properly. A rising sector with little legislation might result in marketplace malfeasance, while a moderate-risk industry with much legislation might stifle development.

As a result, the researcher suggests that non-rules or standards of practice for interested parties, such as claimants, their agents, panelists, financiers, and administrative bodies, are a good place to start for TPF regulation in the Indian scenario.

CONCLUSION AND SUGGESTIONS

On the basis of the best experiences and norms worldwide, India has every reason to favor Third-party funding in arbitration. One of the very first steps toward this direction would be the implementation of such a provision in International commercial arbitration as there lies a lot of potential in this area. The assistance that these kinds of disputes receive in the form of funds would act as a catalyzing agent to achieve the problem of serving justice and also ensure that the revenues are channelized for purposes such as expansion rather than towards expensive litigations. Further, after this becomes a success, India can then venture into other parts of arbitration. This would aid in putting India back on the map for International arbitration alongside helping it gain the status of the South Asian Hub.

Given that the economy is still in the nascent stages of recovery after the pandemic, it increases the chances of instant success for TPF. Moreover, the adaptability of TPF in India would be smooth given that the “Arbitration and Conciliation Act, 1999” is in consensus with the “UNCITRAL Model Law on International Commercial Arbitration”. 

International arbitration has experienced phenomenal growth and Hong Kong and Singapore are the legislations that made this possible. The favorable rules and encouragement for arbitration in these legislations, along with the explicit acceptance of TPF have made these legislations “the explosion of international arbitration in Asia”. These favorable circumstances helped prove that Asian actors are not just “rule takers”. As of now, India has not taken any notable steps in this direction. However, irrespective of whether or not this concept is implemented in India, it is a “commercial reality” and is not going to vanish soon on the other hand, is a trend that is to stay. The absence of a provision in this regard in the 2019 Amendment definitely is an opportunity that was not utilized to its potential and this is the real task in the arbitration community that India needs to overcome. Considering the positive attitude of the judiciary over the years towards TPF, it can be concluded that it is definitely not within a lot of time that India will also be a hot seat for International Commercial arbitration that would essentially involve TPF along with certain thresholds to be fulfilled.

[1] Gladwin Issac & Trishna Menon, Walking the Tightrope of Third-Party Funding in Arbitration in India: Challenges, Opportunities and Prospects, IALR 1–15 (2020).

[2] Bar Council of India Rules: Part VI, Chapter II. Rule 20, Section II.

[3] Stravos Brekoulakis, William W. (Rusty) Park & Catherine A. Rogers, Report of the ICCA-Queen Mary Task Force on Third-party Funding in International Arbitration 185–199 (2018).

[4] Justice B.N. Srikrishna, Report of the High Level Committee to Review the Institutionalisation of Arbitration Mechanism in India 49–53 (2017).

[5] Selvyn Seidel & Sandra Sherman, “Corporate Governance” Rules Are Coming to Third Party Financing of International Arbitration, 10 in Third-Party Funding in International Arbitration 32–49, https://www-kluwerarbitration-com.eu (last visited Apr 8, 2022).

[6] Varun Mansinghka, Third-Party Funding in International Commercial Arbitration and its Impact on Independence of Arbitrators: An Indian Perspective, 13 Asian International Arbitration Journal (2017).

[7] Gourab Banerji, Third Party Funding In International Arbitration: An Indian Perspective, International Arbitration and the Rule of Law 407–423 (2021).

[8] Simon Bachmann, The Impact of Third-Party Funding on Security for Costs Requests in International Arbitration Proceedings, 38 Kluwer Law International 842–853 (2020).

[9] Caroline Kenny, A Comparison of Singapore and Hong Kong’s Third-Party Funding Regimes to England and Australia, 87 The International Journal of Arbitration, Mediation and Dispute Management 170–190 (2021).

[10] Manoj Mukerjee, Financing arbitration in the mainland: Hong Kong’s legislation as a model, 34 Arbitration International 485–498 (2018).

[11] Third party funding in arbitration in India: setting the law straight, https://www.ibanet.org/thirdpartyfunding-arb-India (last visited Apr 8, 2022).

[12] Union of India v. Singh Builders Syndicate, (2009) 4 SCC 523.

[13] Sai Ramani Garimella, Interrogating Third Party Funding in Investment Arbitration: The Need for Regulation in the UK and India Part 1: Special Symposium: UK-India Post-Brexit: Trade and Power Democracy, 16 Manchester J. Int’l Econ. L. 213–233 (2019).

[14]  Issac and Menon, supra note 1.

[15] [1939] ILR 1 (PC).

[16] (1908) 10 BOM LR 230.

[17] (2018) 2 SCC 39.

[18] Bom HC | Not unlawful for an Advocate to enter into a “contingent contract” while appearing in capacity of a “counsel” in arbitration proceedings, SCC Blog (2019), https://www.scconline.com/blog/post/2019/04/08/bom-hc-not-unlawful-for-an-advocate-to-enter-into-a-contingent-contract-while-appearing-in-capacity-of-a-counsel-in-arbitration-proceedings/ (last visited Apr 8, 2022).

[19] Jayaswal Ashoka Infrastructure (P) Ltd. v. Pansare Lawad Sallagar, 2019 SCC Online Bom 578.

[20] B. Sunitha v. State of Telangana, Appeal (Crl.), 2068 of 2017.

[21] Mr. ‘G’, A Senior Advocate v. Unknown, 1955 1 SCR 490.

[22] FDI in India: Foreign Direct Investment Opportunities, Policy | IBEF, https://www.ibef.org/economy/foreign-direct-investment.aspx (last visited Apr 8, 2022).

[23] Light-the-beacons-–-it-is-time-to-test-third-party-funding-in-India-.pdf, https://www.cyrilshroff.com/it-is-time-to-test-third-party-funding-in-India-.pdf (last visited Apr 8, 2022).

[24] Bar Council of India Rules: Part VI, Chapter II. Rule 20, Section II

[25] Manoj K Singh, The future of arbitration in India: Strengthening the process of alternative dispute resolution, The Economic Times, April 17, 2021, https://economictimes.indiatimes.com/small-biz/legal/the-future-of-arbitration-in-india-strengthening-the-process-of-alternative-dispute-resolution/articleshow/82114707.cms?from=mdr (last visited Apr 8, 2022).

[26] Anish Wadia & Shivani Rawat, Third-Party Funding in Arbitration – India’s Readiness in a Global Context, 15 TDM (2017), https://transitionaldisputemanagement.com (last visited Apr 8, 2022).

[27] Issac and Menon, supra note 1.

[28] Ridhima Sharma, Third Party Funding in International Commercial Arbitration, 12 NUALS L.J. 61–83 (2018).

[29] Diganth Raj Sehgal, Third-party funded Arbitration in India, iPleaders (2021), https://blog.ipleaders.in/third-party-funded-arbitration-india/ (last visited Apr 8, 2022).

[30] Third party Funding – India’s time is now : Clyde & Co, https://www.clydeco.com/insights/2020/12/third-party-funding-india-s-time-is-now (last visited Apr 8, 2022).

[31] [1876] 2 App Cas 186

[32] Varun Mansinghka, supra note 6.

[33] Third-Party Funding to be Permitted for More Categories of Legal Proceedings in Singapore, https://www.mlaw.gov.sg/news/press-releases/2021-06-21-Third-party-funding-framework-permitted-for-more-categories-of-legal-preceedings-in-Singapore (last visited Apr 8, 2022).

[34] [2007] 1 SLR (R) 989

[35] (2012) 15 HKCFAR 15

[36] [1995] 1 HKC 179

[37] (2007) 10 HKCFAR 31

[38] Rahul M. Shankar, Third-Party Funding in Arbitration: Time for India to Regulate?, http://www.lawstreetindia.com/experts/column?sid=439 (last visited Apr 8, 2022).

[39] Selvyn Seidel & Sandra Sherman, “Corporate Governance” Rules Are Coming to Third Party Financing of International Arbitration, 10 in Third-Party Funding in International Arbitration 32–49, https://www-kluwerarbitration-com.eu (last visited Apr 8, 2022).

[40] Sai Ramani Garimella, Arbitration Reforms in India – The Case for Third Party Funding of Arbitral Claims (2018), https://papers.ssrn.com (last visited Apr 8, 2022).

[41]  Bharat Aluminium Co v. Kaiser Aluminium Technical Service Co, 2012 (9) SCC 552.

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Today’s post has been contributed by John Bui, who is the Principal Solicitor of JB Solicitors. The firm primarily deals with matters falling under family law, criminal law, property law, and commercial law. John is a nationally accredited family law mediator and arbitrator.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Different countries may follow different legislation on divorces and their family law structures may vary. For example, Australia follows a no-fault divorce system, whereas the US follows a fault-based divorce system.

What is the difference between the two? Essentially, in a no-fault divorce system, there is no need for a party to prove that the other party has done something wrong which has led to the breakdown of their relationship.

There could be many reasons for no-fault divorce systems, such as:

1. Irretrievable breakdown of the marriage;
2. Living away from each other for extended periods of time;
3. Irreconcilable differences (as is the case in Australia), or
4. Incompatibility.

On the other hand, in fault-based divorces, a party will generally request for a divorce from the other party because of some fault committed by the latter party. These faults, often termed as matrimonial offences, can include various things such as:

1. Substance abuse;
2. Adultery;
3. If one partner has been incarcerated;
4. Abandonment for a period of time (minimum period of time to file for divorce may differ from state to state);
5. Emotional, physical or psychological abuse;
6. Impotence;
7. Cruel treatment;
8. Inability to have physical relations;
9. Infections caused by Sexually Transmitted Diseases (STDs)

Notably, in case of fault divorces, a spouse may object to the divorce if he or she wishes to. In this case, typically the spouse who is objecting to the divorce will need to present a defence to object to the fault.

Fault-based divorce systems can get more complicated especially considering the grounds of divorce. In such cases, proving incompatibility or irretrievable breakdown of marriage will not be sufficient.

The party who has filed for divorce must prove the other party’s misconduct. For example, in case the party filed for divorce on the basis of cruel treatment, the party needs to provide evidence that the cruel treatment was harmful to their mental and/or physical health.

Defences in fault-based divorce

As mentioned above, in such a divorce system, parties can object to the divorce by presenting defence. There are different kinds of defences based on the different grounds for divorce, such as:

• Collusion – an agreement between two spouses to fabricate grounds of divorce for some specific purpose;
• Connivance – in cases of adultery, alleging that the party filing for divorce was complicit in act of adultery
• Recrimination – if both parties are at fault for similar conduct such as if both parties have had extramarital affairs
• Provocation – if a party’s misconduct caused the other party to act in a certain way, for example if the other party abandoned the party filing for divorce due to provocation
• Condonation – a claim stating that the party filing for divorce was aware about the misconduct and had forgiven that conduct

Conclusion

As we’ve explored in this article, different countries follow different legislation with regards to divorce. Divorce is an emotionally challenging event. Legal procedures often become complicated and are extremely time-consuming.

Especially in fault-based divorces, the anxiety around legal steps in finalising the divorce remains high. Moreover, issues on alimony, property settlement and child custody will also arise.

When filing for divorce, it is imperative to stay strong and be aware of all legal technicalities that will arise. Failure to do so may lead to parties incurring huge losses and they may often find themselves caught up in court battles.

Understanding the laws that apply to your jurisdiction is very important. The primary way to do so is to engage with as many legal blogs as possible.

The post Expert – Fault versus no-fault divorce system in Family Law  appeared first on LexForti .

With the rise in trade and commerce across the world, countries are more and more looking forward towards a trade barrier free world, where imports and exports can help every possible nation to grow with revenue and resources. Analysing the present issue, Adam Smith, the father of modern economics, emphasized the importance of free trade and stated that if countries remove the trade barriers and allowed free flow of goods from one nation to another that would invite greater prosperity to the countries and fulfil the interest of its citizens.[1]

But, free flow of goods can somewhere down the line infringe the rights of owner of an original product, as counterfeiting and forgery of the products are the unwanted evils that haunt the idea of free trade and commerce. Thus, rights of the owner of a product needs to be protected to ensure that the products are not counterfeited and thereby sold, harming the rights and revenue of the owner, and putting a threat to new and noble ideas.

The process of selling a product across borders via registered or unregistered trade channels, but without the consent of the owner of the product is known as parallel importation. For instance, a book shall be sold for say Rs. 500 only in India as per the wish and fancy of the owner of the book. But, the author wants the same book to be sold in Bangladesh at a relatively lower price of Rs. 250.

Now, the book sold in Bangladesh can be easily bought and imported in India by traders and as a result sold for price relatively lesser than 500. Thus, the following can infringe the rights of the author as though the books were same, but they were meant to be sold in two different jurisdictions. But, due to parallel importation of goods, the traders can create a grey market which results in infringing the intellectual property rights of the owners and denting massive revenues from them.

But, the owner cannot enjoy absolute autonomy over its rights as this would again be detrimental to trade and business. As for instance, a car manufacturing company exhausts its rights over its product immediately after the car is sold from the factory. Later, it cannot claim rights and revenue after every sale of the car in the market. Thus, after being sold from the factory, the car may be sold to the retailer, then to the customer, who may thereby use it for some years and then sell to another person, but the company cannot claim infringement of rights after every sale, as the rights get exhausted after the first sale.

Following from above, there are majorly three kinds of exhaustion of rights, i.e. Regional Exhaustion wherein the following system restricts the circulation of a product to a specific region or area. If the owner circumscribes the circulation and sale of its product within the territory of a particular nation, restricting imports and exports of the product, then the following system is known as National Exhaustion. Lastly, in International Exhaustion the owner cannot restrict the trade and sale of its goods once it is circulated or introduced anywhere across the world.

Regional system of exhaustion follows the most restrictive approach, whereas international exhaustion system follows the least restrictive measures. Different countries across the world follow different pattern while dealing with the present issue. Several African countries such as Ghana, Liberia and Tunisia, while Philippines in Asia, follow the system of National Exhaustion of Rights. It is only the European Union that follows the Regional Exhaustion of Rights prominently while countries such as China, India and Malaysia follow a system of International Exhaustion.[2]

In India, Section 29(1) of the Trademark states that-“A registered trademark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in course of trade, a mark which is identical with, or deceptively similar to, the trademark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of mark likely to be taken as being used as a trademark.” Further, a person uses a registered mark if:-

1. –
2. –
3. Imports or exports goods under the mark;

So, importation and exportation of trademark is considered as use of a mark. Now, this use is done by any person authorized or unauthorized, i.e. if a person imports or exports goods which are similar to the trademark without prior consent of owner, it shall be considered as infringement of trademark as per Section 29(1) read with Section 29(6)(c). For instance, A in Bangladesh sells printers at a price of Rs. 2,000. B, a trader in India, buys the printer and sells it in India at Rs. 5,000. In the present situation there is no infringement of trademark, but, if the printer is solely for sale in Bangladesh, then the same is infringement of trademark.[3]

Section 30(3) on the other hand mentions about exception to infringement of trademark. It states that “where the goods bearing a registered trademark are lawfully acquired by a person, the sale of the goods in the market or otherwise dealing in those goods by that person or by a person claiming under or through him is not infringement of a trade by reason only if:-

1. –
2. The goods having been put on the market under the registered trademark by the proprietor or with his consent.”

Thus, there shall be no infringement of the trademark, if by prior consent of the owner the goods are circulated in the market and thereafter the goods are sold further to another person. For instance, a company certifies A as the proprietor of goods in the market. Now, A sells it to a retailer B who thereby sells the product to the customer. Now, B shall cannot be sued by the company for infringement of trademark as the rights of the company got exhausted the moment it sold its product to A.[4]

The position of the present situation has been simplified in India through case laws such as Kapil Wadhwa v Samsung Electronics[5], and Western Digital Technologies v Ashish Kumar, wherein the Court stated that after analyzing the communication of India in the Uruguay rounds of WTO in 1985, and report of the Standing Committee on the Copyright (Amendment) Bill, 2010, it is explicit that India follows the concept of International Exhaustion of Rights. Further, the Court stated that it cannot prohibit parallel importation in the country, as firstly it follows the system of international exhaustion of rights, and secondly, parallel importation would help in creating a competitive market which ultimately would benefit the consumer.

But, while doing so the trader should provide a message while selling the product that the owner of the product shall not be liable for any discrepancy in the product. For instance, if Samsung printers are being sold through parallel importation, then the seller shall provide a message while selling the printer that in case of any discrepancy in the product, Samsung shall not be liable for the faulty product. This, shall withhold the reputation of the owner of the product, and shall further absolve them of any liability which might arise during sale through parallel importation.

Though the stand of judiciary is crystal clear in the present situation but the government should introduce more regulations and policies which could deter the import of counterfeited products in the market. Strengthening the custom security and tracking of counterfeited product should be undertaken to protect the rights of the innocent and diligent companies.    

[1] Adam Smith, “The Wealth of Nations”, Oxford, England, 2002.

[2] Christopher Heath, “Parallel Imports and International Trades”, WIPO Journal,

[3] Shyamolima Sengupta and N V Saisunder, “Concept of Parallel Imports and the Principle of Territorial Exhaustion of Rights under the Indian Trademarks Act, 1999”, Lexology, March 30, 2020.

[4] “Legality of Parallel Imports vis-a-vis Trade Marks Law”, August 21, 2018.

[5] 2013 (53) PTC 112 (Del) (DB).

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About SLS-Hyderabad

The idea of Symbiosis is nurtured in the Vedic thought “Vasudhaiva Kutumbakam” which means “World as One Family”. Symbiosis Law School, Hyderabad was established in the year 2014 and has now successfully blossomed into one of the premier law schools. It has been catering to the higher education of a diverse group of students inheriting splendid novelty, dynamism, and excellence. SLS Hyderabad is founded on the pillars of expertise, justice, and shares expertise in imparting quality legal education.

About the International Cell

International Cell, Symbiosis Law School, Hyderabad has been established under Symbiosis Centre for International Education. The cell, through International Partnerships, offers opportunities for collaborations at various levels to facilitate student internship programs, post-graduate programs, summer and winter schools, and student exchange programs.

About the Webinar

Are you a law student aspiring to get enrolled in the most renowned foreign universities abroad? If yes, then this is THE EVENT for you!

The 3-Day national event focuses on providing clarity and coherence on securing higher education opportunities in foreign countries for aspiring law students. The speakers, being renowned academicians in the legal community, will address various queries and tactics associated to admissions, scholarships, Statement of purposes and methods to improve networking skills to make your LLM application stand out from the others.

The Panellists

• DAY 1- Mr. Rohan Bilimoria

Mr. Bilimoria is an international attorney with market-leading Magic Circle firm, US firm and Fortune 500 in-house experience in London, Moscow, New Delhi, Singapore, Sydney and Tokyo. He is an in-house lawyer for a Big Four Bank in Australia, a former in-house legal counsel for KFC Asia and Pizza Hut Asia Pacific, and a former attorney for law firms Linklaters and Mayer Brown.He is the founder of Law Ninjas (lawninjas.co), a global platform to help lawyers and law students, and has conducted interactive workshops for law students

Mr, Bilimoria will address the various aspects associated to Networking and CV writing skills.

• DAY 2- Ms. Heather Wallick

Ms. Heather Wallick, CEO at Wallick Global Consulting- Wallick Consulting and Wallick Global Consulting Pvt Ltd provide ethical and holistic high-touch coaching services to high school and university students who are pursuing their undergraduate and graduate degrees outside of their domestic education systems. Prior to handling this organization, Ms. Wallick worked for Harvard Law School for twelve years, most recently as the Assistant Director of Admissions and Financial Aid for the Graduate Program. Before joining the Graduate Program, she worked as an Immigration Law Specialist with the law firm Hale & Dorr (now known as Wilmer Cutler Pickering Hale and Dorr LLP), focusing on the areas of Business and Family Immigration.

Ms. Wallickwill provide practical exposure and share tactics which could be used by the students when they are applying for foreign internships or Post-graduation in Foreign Universities

• DAY 3- Mr. Subhrajit Chanda

Mr. Subhrajit is working as Asst Lecturer at OP Jindal Global University, and a Member Centre for Sports Law, Business and Governance of Jindal Global Law School. Currently, he is pursuing a PhD, after completing LL.M. in Sports Law, from Nottingham Trent University of United Kingdoms, with an international scholarship provided by the university; and another LL.M. in Energy Law from University of Petroleum and Energy Studies, India. He did his B.B.A.LL.B. (Hons.) focussing on International Trade Law.        He also has other diploma and certificate courses from the UK Anti-Doping agency, FIFA, International Olympic Association, and also from Open University, UK collaborated with English Football League.He is a sports enthusiast and has played for the Sports Authority of India, the eastern region for certain period of time. Also, back in UK, he has worked as a sports mentor volunteer at Nottingham Trent University Partner with Laureus Foundation and UK Media and Sports Government.

Mr. Chanda will address queries on admissions, application process, examinations and scholarships.

Date and Timings

The webinar will be conducted on the following timings:

[DAY 1] February 21, 2022- 2:00 PM – 3:30 PM

[DAY 2]February 22, 2022- 2:00 PM – 3:30 PM

[DAY 3] February 23, 2022- 2:00 PM – 3:30 PM

Registration Deadline

Last date of registration: February 21, 2022, 12 PM

Eligibility

All bona fide Students, academicians, and research scholars who are intolegal education.

Registration Fees

Kindly note there is no registration fee for the webinar.

Contact Information

For any query mail at: ic[at]slsh.edu.in

Event Coordinators: Sulagna Dutta: sulagna.dutta[at]student.slsh.edu.in

                                          Charul Mishra:charul.mishra[at]student.slsh.edu.in

The post National Webinar Series on Opportunities of higher legal education in foreign countries [21-23 February, 2022] appeared first on LexForti .

LexForti Legal Journal [ISSN: 2582 – 2942] is a free open access peer-reviewed journal, which gives insight into broad and dynamic legal issues. The objective of LexForti is to provide open and free access to legal databases to everyone.

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The post CFP: LexForti Legal Journal [Vol II, Issue VI, ISSN 2582-2942] | Free, Submit by January 30 appeared first on LexForti .

Navya Dubey is presently associated with the Institute of Law, Nirma University. Her area of interest is Intellectual Property laws and Human rights. Aditi Insaa is presently associated with the Institute of Law, Nirma University. Her area of interest is Intellectual Property laws and International Laws. Apart from this, she engages herself in reading current affairs and key issues affecting society.

Summary

The Prohibition of Child Marriage (Amendment) Bill, 2021 created a huge stir among the legal stakeholders and various experts. This article pursues to examine the deliberations, debates and flipside and majorly the shortfalls of the proposed amendment. What are the key issues involved and how the act blots the agency of women are the things to be deeply cerebrated?

Keywords: Agency, Rights, Marriage, Child Marriage, Bill

Introduction

2021 witnessed the presentation of the Prohibition of Child Marriage (Amendment) Bill, which increased the marriageable age of women from 18 to 21 years. It was done as per the recommendations of Task Force report headed by Ms. Jaya Jaitly, former President of the Samata Party, so appointed by the Ministry of Child & Women Development. The bill containing six segments was presented in the Lok Sabha by Union Minister for Women and Child Development Smriti Irani. It additionally proposed to correct seven individual laws — the Indian Christian Marriage Act; the Parsi Marriage and Divorce Act; the Muslim Personal Law (Shariat) Application Act; the Special Marriage Act; the Hindu Marriage Act; and the Foreign Marriage Act. The bill indeed tries to paint a rosy picture under the garb of women empowerment and gender equality. 

The avowed objective of the bill is to make the age of marriage even across all religions, regardless of contrary laws, customs, or ingrained practices. This article aims to put forth the claim that the proposed amendment will translate into gender equality when other factors like patriarchal mindset, early child marriage across religious communities are addressed.

Object and Reasons of the Bill

The object and reasons of the bill underscore that it seeks to “address the issues of women in a comprehensive way, as an action for bolstering the position of women. The bill prima facie seeks to increase the agency of women “as stated by the Parliamentary Standing Committee. However, the moot question which looms here is whether increasing the marriageable age will stop the underage marriages happening across the country. Many scholars, academicians like Zakia Soman (who fought the battle against Triple Talaq) have opined that these legal reforms alone are not sufficient enough to enable a just and safe environment for women. Experts have opposed the decision on the ground that the law to end child marriage won’t materialize as the decline in number of child marriages is marginal. Furthermore, they pointed out that cases of girls dropping out of school owing to early marriage reveal that many girls are often devoid of primary education.

 Notwithstanding, pundits have since brought up a large number of hidden issues — social disgrace, poverty, raised demand for dowries – that pushes ladies into an early marriage. They have likewise said that the law up to this point has not been sufficiently effective in forestalling child marriages. Consequently, there may be a possibility that this may very well be a handy solution for a complex issue that requires a more granular perspective, beginning from changes in the mindset and notions of the general public and society.

Specialists have additionally highlighted that in a nation where inter-caste and inter-religious marriages could be proven fatal, this law could become a tool that can be used by daughters to claim their rights. Regardless of the advantages the bill seeks to offer on the platter, it remains unclear whether this new lawful period of marriage will bring about the sea changes as stated or whether 21 would end up being simply a number.

Paradox

A major downside of increasing the age of marriage of women from 18 to 21 years is that it downplays the decision-making capabilities of marriage of both women and men. Back in 2008, The Law Commission Report which was published proffered a suggestion of reducing the marriageable age of men to 18 years assuming this step would further the parity between the legal marriageable ages of women and men.

An individual is considered to be an adult after attaining 18 years of age. This essentially means she is legally capable of buying property, voting and entering into contracts. The looming question here is why is this freedom curtailed with regards to deciding the age of marriage. Doesn’t the fact that a woman is exercising her own will to vote rationally suffice to conclude that she has attained the wisdom to rationally decide when she wants to get married?

Tarnishing the Agency of Women

We live in a society that is to date grappling with issues of child marriages and female foeticide. A daughter is treated as a parayadhan and a liability that needs to be handed over as soon as possible. People still have deeply- rooted beliefs that defy the agency and empowerment of women. India is already riddled with gender inequalities. The primary and the most fundamental thing which is required to eliminate these evils involve cultivating a value system that thrives on mutual respect between men and women. Recognition of women is sine qua non to create this value system.

Freedom of Choice which is available to women as a right gets truncated and reduced under the societal mores and pressures. For instance, choosing a partner becomes a task for young adults because the choice is enmeshed with barriers of caste, creed, religion, language, etc. These restrictions foisted upon the individuals are so stringent that violation of the same often leads to the murder of their daughter by families (Honor Killing) under the garb of protecting the caste. Instead of recognizing the rights of women and protecting the agency of women where she is able to choose a life partner, State Governments are riding on love-jihad laws, leaving no room for inter- religion marriages.

Families often abuse these laws to validate their social perceptions by simply annulling inter- religion or inter- caste marriages. The laws so abused include seeking repeal under the Prohibition of Child Marriage Act, making false charges of kidnapping and rape under the Protection of Children from Sexual Offences Act and IPC. The present bill also stands chances of being subjected to similar patterns of misuse and abuse by parents disapproving of their daughter’s choice of partner.

Conclusion

Age of 18 is considered to be a maximum breaking point as far as the physical and reproductive development of ladies is concerned. Hence, the proposed move will limit and constraint the privileges of grown-up ladies, an issue that needs to be reconsidered by concerned stakeholders.  Statistics reveal that India breeds every third child bride in the world and the proposed step which increases the marriageable age give a cue that around 34% of women would get married before attaining the marriageable age. Therefore, there are slim chances that raising the bar of marriageable age would result in sea changes in our society.

The bill seems more like a posturing attempt of pleasing and tokenism rather than a genuine step to eliminate issues of gender inequality, child marriages, maternal mortality, safety of women, etc. The stakeholders and the Government should proactively implement schemes to alleviate the situation. Ensuring easy access to education will go a long way to address the social evils that are deeply entrenched in our society.

The post The Prohobition of Child Marriage (Amendment) Bill 2021 – A double-edged Sword? appeared first on LexForti .

“A big heartfelt thanks to the entire team of A&A for assisting us in closing this round of investment for the Company. It was a pleasure working with them. The sharp analytical skills portrayed by Disha, and her team helped us in traversing through and understanding the complex structures of the transaction documents and the team was always available to guide us throughout the transaction.”

Mr. Ragavan Venkatesan, Founder of the Company, commented.

The post A&A team advises Digivriddhi Technologies Private Limited in raising its Pre-Series A Investment round appeared first on LexForti .

Abstract

Keywords- Amendment of Pleadings, Civil Procedure Code 1908

Introduction

The principle followed in Civil Procedural Law is that the Court procedures and rules are designed to achieve substantial justice. Order VI Rule 17 is an example of such procedural law that is designed to serve justice to the parties by giving them a chance to amend their pleadings where it appears to be necessary.

The word ‘pleading’ in ‘amendment of pleadings’ can be understood by Order VI Rule 1 of the Civil Procedure Code(CPC), 1908. It defines a Pleading broadly `as a plaint or a written statement.[1] While a Plaint is a formal statement filed by a Plaintiff to substantiate his claim, similarly a Written Statement as per Order VIII Rule 1 is provided by a Defendant from his side of the argument in that trial within thirty days of the summons being issued.[2]

Pleadings play an important role is determining the outcome of a case by enabling the plaintiff to establish the justification for legal action and for the defendant to prove his defense accordingly in a civil suit. They cannot be changed except for the Judge’s discretion and the trial proceeds only within the pleadings made.

This is the reason the Civil Jurisprudence emphasizes that a pleading must be carefully drafted and therefore, must contain only relevant material facts with no application of law, must not include the evidence provided to further substantiate the claim and must be in a concise form.

On certain occasions it may be imperative for a party to modify such pleadings before a trial begins or even during the course of a trial in order to reshape their arguments for determination of rights in question. This can happen when some new information comes to the knowledge of Court or parties, or when a party is not adequately prepared for the concrete objections raised by other party. Order VI Rule 17 applies to such situations.

This rule was removed from CPC to ensure speedy disposal of suits following the recommendations of Justice Malimath Committee and the Law Commission, however, its need was comprehended and was consequently reinstated.[3] It is needed because the Court expects each side to present their argument in the way they wish to. Since there can be no civil action if there are no pleadings, an amendment of such a pleading has the huge impact on the rights in the matter of question of the parties.

Civil Procedure for Amending Pleadings

The history of common law suggests that the process making amendments to pleadings was very rigid such that even the changes to minor details were not entertained by the Court of Law.[4]

However with the case Cropper v. Smith the importance of amending pleadings in conducting a fair trial was realised. It was observed in the case that purpose of Courts is to determine the parties’ rights, not to condemn them for mistakes in conduct and diligence made while framing the pleading.[5]

The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties”.[6]

Order VI Rule 17

Provided that no application for amendment shall be allowed acter trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before commencement of trial.

Proviso added in the 2002 Amendment

” A plain reading suggests that the word “may” in the first part means it is complete discretion of the civil court to decide whether or not to allow a particular amendment in a proceeding where it deems to be just.[7]

Hence, a party cannot demand an amendment to a pleading as his right. The word “shall” such discretion by the courts must be used liberally and judicially in accordance to certain principles.[8]

For instance, if a party could not raise a particular issue in the initial pleading despite due diligence, the court has to accept an application for amending pleading in such a case so as to determine the matter in question between the parties. The proviso acts as a caveat in preventing applications aimed to delay the proceedings after the trial commences.

The process of amending a pleading starts with writing an application to the deciding Civil Court stating the purpose for such modification. The Civil Judge will grant Order VI Rule 17 if he finds that such amendments may be instrumental for determining the matter in question. After this party must ensure to file the altered pleadings by the prescribed time.

Other provisions related to amendment of pleadings are Order VI Rules 16,18, 28 and 29.  Order VI Rule 16 grants the Court power to strike or amend pleadings which it deems to be scandalous, unnecessary against a fair trial or abuses the Court’s process.[9]

As per Order VI Rule 18 of the Civil Procedure Code, 1908 prescribes a limitation where a party files for an amendment of pleading in response to which the court grants it, but the party fails to amend it within 14 days or as specified, then such party shall be barred from doing so.[10]

Additionally Order VI Rule 28 requires an application to be made by a party which seeks to amend its pleadings along with a prayer and Order VI Rule 29 requires a note to be made by the legal heirs of a deceased party for a consequential amending. In cases regarding denial of amendment seeking ancillary relief like a financial relief in a divorce settlement, such a party may have the option of raising the issue in a subsequent suit.

However, when a party seeks an amendment of pleading regarding constructive res judicata, the Civil Court must reject such application.[11] This rule is not confined to regular civil proceeding but can be ordered even by a presiding judge in execution, insolvency, arbitration and matrimonial proceedings.[12] 

Judicial Interpretation of Amending of Pleadings under Order VI Rule 17

The Apex Court on an instance declared that an amendment to a pleading should be permitted by a Court of Law if it does not add any disadvantage to the opposing party, despite such party seeking amendment displayed some lapse.[13] Order VI Rule 17, CPC guarantees that both parties are not at a disadvantage merely because of some minor omission on their part.

By providing a chance to amend their pleadings, Courts can adjudicate the case on its merits which are necessary for determining the matter in controversy. However, the provision does not specify such a chance to amend their pleadings may be allowed. Therefore, such guidelines have been interpreted by the Courts in various cases.

When Amending Pleadings Allowed

An application to amend pleadings is allowed when the Courts finds it necessary to determine the real question in controversy and when it does no injustice towards the opposite party. Both these conditions have to be fulfilled.[14]

In general, in a pre-trial situation an amendment to a pleading may be allowed when such application is for granting a consequential relief, for prevent more proceedings on the same case, when certain events take place after filing the pleading, when such amendment clarifies the previously filed pleadings, when parties are incorrectly described, where there is a misstatement of cause of action or any other bonafide omission that are necessary to determine the rights of the parties involved.[15]

As stated before, a pleading can be both plaint and written statements.

The Apex Court in Usha Balashaheb Swami and Ors. v. Kiran Appaso Swami and Ors provided that both are considered differently when it comes to amending. The reason was stated as

The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement[16]

Usha Balashaheb Swami and Ors. v. Kiran Appaso Swami and Ors

When Amending Pleadings Rejected

On most circumstances an application to amend pleadings by a party is rejected by a judge because either they do not satisfy the two condition or the omission made was made recklessly or the altered pleadings changes the basic nature of the pleading initially filed.

In Modi Spg. & Weaving Mills Co. Ltd. v. Ladha Ram & Co., the Allahabad High Court contended that certain cases where altered pleadings are inconsistent or introduces a new and different case, the leave shall be refused.[17]

According to the ‘Doctrine Of Relation Back’,  for securing justice to the parties, the Court has the power to instruct when an amending to a pleading does not relate back to the date of application, especially in cases regarding misdescription in suit.[18]

The proviso implies that an application seeking amendment to a pleading may not be raised after commencement of a trial unless there is due diligence.

The Supreme Court clarified as what exactly is commencement of trial in Baldev Singh v. Manohar Singh, that

Commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments.[19]

Baldev Singh v. Manohar Singh

Law of Limitation

Date of application for seeking amendment of pleading is of utmost importance in litigation, even though the words of the provision say “at any stage of the proceedings”. An early case called Charan Das v. Amir Khan observes that despite an amendment to a pleading may be necessary to determine the real question in controversy, at times law of limitation may be a valid defense to refuse it.[20]

Further, in South Konkan Distilleries & Anr v. Prabhakar Gajanan Naik & Ors it was stated  in para 11 that

“It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the court to allow an amendment if it is of the view that allowing of an amendment shall really sub serve the ultimate cause of justice and avoid further litigation.[21]

Paragraph 11 of the Judgement

Problems associated with Amending Pleadings in a Civil Suit

It has been observed in the history of law that when there is a more discretion granted, more will be the potential for abuse. Similarly, though Order VI Rule 17 is definitely not a right of the parties and can be granted only at the discretion of the Court, it has still been used arbitrarily with a malicious intention to delay civil proceedings so as to make the cause of action time-barred under the Limitation Act.

Litigation is such that the facts of a case may change materially between filing of a pleading and trial which may necessitate amending pleadings to reflect these changes. However, a frivolous overuse of this provision may hamper speedy disposal of cases and is against the principle of ‘Justice delayed is Justice denied’.

The 222^nd Law Commission Report indirectly suggests that every effort has been made to avoid using provisions like Order VI Rule 17.[22] The opposite parties are seldom compensated for the delays caused by amending pleadings. This necessitates a re-examination because it is being used in nearly all instances to make unnecessary amendments. In some cases, like these the Civil Courts in India have refused to entertain an application seeking amendment even though they may have qualified for the same.

As India is facing the problem of huge backlog of cases, the frivolous applications to amend their pleadings is only adding burden to the that. It is estimated that around 80% of applications seeking amendment of pleadings may not be genuine and are in fact applied for the purpose for hampering civil proceedings.[23]

Apart from the problem of delayed justice and pending cases, Order VI Rule is also responsible for serving as a mechanism to infringing rights of opposing parties since in certain circumstances it may hard to identify the matter in controversy and even the malicious purpose to amend.

Although it is suggested that Courts must take a liberal approach while granting leave for amending pleadings under Order VI Rule 17, it is observed that in situation when one party is allowed to amend his pleading and when other party is disallowed to meet the former’s altered pleading it causes grave injustice to the rights of these parties.

Conclusion

Any legal action begins with the filing of a pleading, which should be done with great care by the parties. If the facts of the case change, the party must file a motion with the court to have the pleadings changed. The Court usually allows a motion to alter the pleadings, but it must keep in mind that doing so would not change the case’s original substance.

A request to amend a pleading must be allowed in court until the case begins. The court may approve such an application to avert a flood of litigation. At the same time, the court finds that granting the other party’s motion to change these pleadings will not cause a disadvantage. If it does, the court may deny the request to amend his pleadings.

Overall, it is understood that Order VI Rule 17 is instrumental in securing justice, reducing the amount of litigation and its incurred costs, and also to avoid having a lot many suits. The scope of this provision suggests that rules are subordinate to justice in Civil procedure and hence the Courts have so far been liberal in ordering for amending pleadings.

In case law, a set of grounds for granting or refusing leave has been developed. It is well knowledge that one of the Indian judiciary’s fundamental flaws is the slowness with which justice is delivered, and that changing pleadings is a significant factor. Although pleadings amendment is not a right that may be exercised at any time or in any circumstance, courts should not evaluate such petitions in a mechanical manner.

When the opposing party is entitled to reimbursement for expenditures and delays, the court should be more lenient. The 27^th Law Commission Report has suggested that a statutory clarification regarding whether a civil court can allow an amendment to a plaint when such amendment results in rendering that court incompetent to try the suit is required, which has so far not been implemented.[24]

This must be rectified by ensuring that Civil Courts allow amendment to pleadings only for those made with a bonafide intention since it provides a good mechanism for eliminating errors in pleadings.

References

1 A. Mohan, Justice, Courts and Delays (2009).

2 William Searle Holdsworth et al. , A history of English law (3 ed. 1923).

Baldev Singh v. Manohar Singh, AIR 2006 SC 2832.

C.K. Takwani, Civil Procedure Code (1987).

Charan Das v. Amir Khan, AIR 1921 PC 50.

Cropper v. Smith, [1884] 29 Ch D 700.

Dr. Justice AR. Lakshmanan, The 222nd Law Commission Report on Need for Justice-dispensation through ADR (2009).

Haridas Girdhardas v. Vasadaraja Pillai, AIR 1971 SC 2336.

J L Kaput, The 27th Law Commission Report on The Code of Civil Procedure, 1908 28 (1964).

Syam Kumar (JCJ Korutla), Paper Presentation on Amendment of Pleadings, https://districts.ecourts.gov.in/sites/default/files/Paper%20Prensentation%20on%20Amendment%20of%20Pleadings%20-%20J%20Syam%20Kumar%2C%20JCJ%2C%20Korutla.pdf.

J Syam Kumar, supra note 10.

Modi Spg. & Weaving Mills Co. Ltd. v. Ladha Ram & Co., (1976) 4 SCC 320.

Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors., (2002) 2 SCC 445.

Rajkumar Gurawara (Dead) Thr. L.Rs. v. S.K. Sarawagi And Co. Pvt. Ltd. And Anr, AIR 2008 SC 2303.

Scope and Extent of Amendment of Pleadings, https://www.lawctopus.com/academike/scope-and-extent-of-amendment-of-pleadings/ (last visited Oct 10, 2021).

South Konkan Distilleries & Anr v. Prabhakar Gajanan Naik & Ors, (2008) 14 SCC 632.

The Code of Civil Procedure, 1908, Order VI Rule 1.

The Code of Civil Procedure, 1908, Order VI Rule 16.

The Code of Civil Procedure, 1908, Order VI Rule 17.

The Code of Civil Procedure, 1908, Order VI Rule 18.

The Code of Civil Procedure, 1908, Order VIII Rule 1.

The Code of Civil Procedure (Amendment) Act, 2002, No. 22.

Usha Balashaheb Swami and Ors. v. Kiran Appaso Swami and Ors., AIR 2006 SC 1663.

[1] The Code of Civil Procedure, 1908, Order VI Rule 1.

[2] The Code of Civil Procedure, 1908, Order VIII Rule 1.

[3] The Code of Civil Procedure (Amendment) Act, 2002, No. 22.

[4] 2 William Searle Holdsworth et al. , A history of English law (3 ed. 1923).

[5] Cropper v. Smith, [1884] 29 Ch D 700.

[6] The Code of Civil Procedure, 1908, Order VI Rule 17.

[7] Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors., (2002) 2 SCC 445.

[8] Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors., (2002) 2 SCC 445.

[9] The Code of Civil Procedure, 1908, Order VI Rule 16.

[10] The Code of Civil Procedure, 1908, Order VI Rule 18.

[11] Scope and Extent of Amendment of Pleadings, https://www.lawctopus.com/academike/scope-and-extent-of-amendment-of-pleadings/ (last visited Oct 10, 2021).

[12] J Syam Kumar (JCJ Korutla), Paper Presentation on Amendment of Pleadings, https://districts.ecourts.gov.in/sites/default/files/Paper%20Prensentation%20on%20Amendment%20of%20Pleadings%20-%20J%20Syam%20Kumar%2C%20JCJ%2C%20Korutla.pdf.

[13] Haridas Girdhardas v. Vasadaraja Pillai, AIR 1971 SC 2336.

[14] C.K. Takwani, Civil Procedure Code (1987).

[15] Rajkumar Gurawara (Dead) Thr. L.Rs. v. S.K. Sarawagi And Co. Pvt. Ltd. And Anr, AIR 2008 SC 2303.

[16] Usha Balashaheb Swami and Ors. v. Kiran Appaso Swami and Ors., AIR 2006 SC 1663.

[17] Modi Spg. & Weaving Mills Co. Ltd. v. Ladha Ram & Co., (1976) 4 SCC 320.

[18] J Syam Kumar, supra note 10.

[19] Baldev Singh v. Manohar Singh, AIR 2006 SC 2832.

[20] Charan Das v. Amir Khan, AIR 1921 PC 50.

[21] South Konkan Distilleries & Anr v. Prabhakar Gajanan Naik & Ors, (2008) 14 SCC 632.

[22] Dr. Justice AR. Lakshmanan, The 222nd Law Commission Report on Need for Justice-dispensation through ADR (2009).

[23] 1 A. Mohan, Justice, Courts and Delays (2009).

[24] J L Kaput, The 27th Law Commission Report on The Code of Civil Procedure, 1908 28 (1964).

The post Amendment of Pleadings | Order VI Rule 17 [CPC]: A Critical Analysis appeared first on LexForti .

Copying online templates could be disastrous to your business. Franchise agreements are highly customized and should be based on business goals. One faulty clause could lead to legal complications. Therefore, we suggest ALWAYS consulting an expert before drafting a Franchise Agreement.

FRANCHISE AGREEMENT SAMPLE DRAFT

FRANCHISE AGREEMENT

 THIS AGREEMENT (the “Agreement”) is made this ___day of ___, 20___, by and between:

Burger Legal Private. Ltd., a company incorporated under the laws of India, whose office is at………………..; (hereinafter referred to as “the Franchisor”)

AND

Mr Rohit Pradhan, s/o Dayanand Pradhan, Resident of Patna, having its PAN Number ABCDEF. (hereinafter referred to as “the Franchisee”)

The Franchiser and the Franchisee hereinafter collectively referred to as the “Parties” and individually as a “Party”.

1. RECITAL

WHEREAS:

1. The Franchisor has developed methods for establishing, operating and promoting restaurant selling varieties of burger and fast-food products (“BURGER LEGAL Cafes” or “Cafes”) using the service mark “BURGER LEGAL” and related trade names and trademarks (“Marks”) and the Franchisor’s proprietary methods of doing business (the “Licensed Methods”).
2. The Franchisor grants the right to others to develop and operate BURGER LEGAL Cafes, under the Marks and pursuant to the Licensed Methods.
3. The Franchisee desires to establish a BURGER LEGAL Cafe at a location identified herein or to be later identified, and the Franchisor desires to grant the Franchisee the right to operate a BURGER LEGAL Cafe at such location under the terms and conditions which are contained in this Agreement.

• DEFINITIONS

Commencement date shall be…

Confidential information shallmean all information…

Intellectual Property Rights shall include…

Location shall mean the premises of the ABC Complex at Rohini, Delhi.

Method shall mean the methods, techniques and processes developed by the Franchisor;

Trademarks shall mean the names, trademarks and service marks owned by the Franchisor and include inter alia;

Products shall mean, all varieties of Burgers, French Fries, Aerated drink and other eating items of the Franchisor bearing any of the Trademarks;

Term shall mean the period fifteen years from the commencement date;

Turnover shall mean gross revenue of the Franchisee’s store.

• GRANT OF FRANCHISE

In consideration of the onetime professional consultancy fees and the other payments, which shall be paid by the Franchisee at the time and in the manner set out in this Agreement and in further consideration of the observance and performance of the undertakings on the part of the Franchisee, the Franchisor grants to the Franchisee the right to establish and operate the Burger Legal stores at the Location for the Term.

• THE FRANCHISEE’S OBLIGATIONS

The Franchisee covenants and agrees with the Franchisor promptly to perform and observe the following covenants and conditions:

• Commencement

To commence the Project by the Commencement Date.

• Project to be carried out at the specific location only

Not to carry on the Project or any part thereof other than from the Location without the prior written consent of the Franchisor.

• Business Promotion

4.3.1 Actively to promote the Project and to exercise best endeavours in the conduct of the Project to promote the mutual business interests of the Franchisor and the Franchisee and shall cause to be provided at the Location such of the Products as are stipulated by the Franchisor from time to time.

4.3.2 As part of its endeavours to promote the Project, to organize a Media Conference at the time of launch and to organize such other promotional activities including but not limited to media promotions, brochure drops and on-location merchandising display as are mutually decided by the Parties from time to time.

• Products

4.4.1 Only to sell at the Location, the Products, which are specified by the Franchisor and which may be purchased from the Franchisor alone.

4.4.2 In no case will the Franchisee stock or sell any goods other than the Products and goods which the Franchisor otherwise deems to be unsuitable for sale at the Location.

4.4.3 The Franchisee shall pay for all Products acquired by him from the Franchisor according to the terms of payment as notified in writing from time to time by the Franchisor to the Franchisee.

4.4.4 Notwithstanding that risk in any Products supplied by the Franchisor to the Franchisee, shall pass to the Franchisee upon delivery, full legal and equitable title and interest in all and any Products supplied to the Franchisee shall remain in the Franchisor and shall not pass to the Franchisee until the Franchisor shall have received payment in full of all amounts due and owing from the Franchisee to the Franchisor for the time being (including any interest accruing and owing to the Franchisor) and from time to time in respect of all such Products supplied by the Franchisor to the Franchisee at any time.

4.4.5 The Franchisee shall pay the cost of delivery for the Products acquired from the Franchisor

• Non-modification of products

To sell the Products in the same condition as that in which it receives them and not to alter or remove or tamper with them or any markings or name plates or indications of the source of origin on them or any packaging supplied by the Franchisor except putting such notices as are required by the packaging laws of ……………. (Country) and will inform the Franchisor of any such laws and the alterations made for the compliance thereto.

• To be only sold to the end-users

Not during the term of this Agreement or any renewal or extension thereof without the written approval of the Franchisor, sell the Products other than to end-users.

• Maximum Prices

Not to charge customers prices in excess of the prices specified by the Franchisor in writing from time to time.

• Maintain Stocks

4.8.1 To commence the Project with a level and type of stock-in-trade of the Products as are in writing specified by the Franchisor and to maintain at all times during the Term, stocks of the Products at a level and of a type approved by the Franchisor from time to time.

4.8.2 To ensure that all stock is maintained in accordance with the Franchisor’s instructions and recommendations and to the standards prescribed by the Franchisor in writing from time to time.

• Books of Accounts

4.9.1 To keep such books of account and records and operate such finance and accounting and stock control systems for the Project made up in accordance with proper and accepted accounting practices and accurately maintain them up to date at all times.

4.9.2 To provide the Franchisor with true copies of quarterly audited profit and loss accounts and balance sheets for the Project made up in accordance with proper and accepted accounting practices, which shall be provided no later than 30 days after the end of each quarter

• Payments and Schedule

4.10.1 To pay to the Franchisor (or as the Franchisor directs) as per the relevant dates (time being of the essence):

(i) One time professional fee of……………….. (Amount in any currency) towards providing the professional consultancy for the Project, which shall be payable five months prior to the Commencement Date;

(ii) 4% of the turnover of the Burger Legal’s cafe payable on a quarterly basis;

(iii) The salaries of the staff recruited, trained and employed by the Franchisor in relation to the Project and any costs incurred on travel, accommodation or any incidental expenses incurred on recruitment and training of the manpower or in opening and operating the Project with prior sanction of the Franchisee, which the Franchisor shall bill on the actual.

4.10.2 All payments shall be made by the Franchisee by way of a bankers cheque/demand draft made payable at ……………….. (place) in favour of the Franchisor.

• No authorized representation

Not to make any representations, statements or warranties about the Project other than those which are expressly permitted by this Agreement or which the Franchisor may first authorise in writing.

• Right to inspection

4.12.1 To permit officers, servants and agents of the Franchisor during normal hours of business to inspect and observe the Project, and all parts of the Location; the stocks of the Products held by the Franchisee and the manner in which the goods are displayed and sold by the Franchisee.

4.12.2 To permit the Franchisor and its servants and agents to inspect and copy, books of account, records, finance and accounting systems at the Location.

• Intellectual Property

Not to be a party to the doing or neglecting to do any act whereby any industrial or intellectual property including trade secrets and business reputation owned by the Franchisor and any company related to it and which the Franchisee is authorised to use (including the goodwill of the business in respect of which this Franchise is granted and used in connection with the Project) may be prejudicially affected either during the Term or afterwards.

• Maintain secrecy

4.14.1 To maintain strict secrecy about the Methods of the Franchisor including any manuals issued by the Franchisor, any technical know-how, trade secrets, product information, market opportunities, advertising and publicity materials belonging to the Franchisor, both during the currency of this Agreement and after it is terminated.

4.14.2 To take all steps necessary to ensure that the Franchisee’s nominees, employees, agents and sub-contractors also observe such requirements of secrecy as stipulated in the previous clause and shall cause such nominees, employees, agents or sub-contractors to enter into a secrecy Agreement in a form approved by the Franchisor.

4.14.3 The Franchisee and his nominee, employees, agents or sub-contractors shall not during the currency of this Agreement and after its termination disclose any Confidential Information received by any of them from the Franchisor in the course of the Project unless such disclosure is required by law and will inform the Franchisor of any such disclosure that they are compelled to make.

4.14.4 The Franchisee and his nominees, employees, agents or sub-contractors shall not after the termination of this Agreement and thereafter use such Confidential Information without the prior written consent of the Franchisor.

4.13.5 In order to protect the trade secrets and other Confidential Information as also in lieu of the know-how received by Franchisee from the Franchisor so as to be able to fulfill its obligations as part of the Project, Franchisee agrees that during the Term and even after termination for a period of three years thereof, Franchisee shall not be concerned or interested either directly or indirectly in any business which is involved in the supply of goods which are similar to the Products sold at the Location or in providing services similar to the Services provided as part of the Project.

4.13.6 As part of its obligations to maintain secrecy the Franchisee will not at any time within three years after the termination of this Agreement:

(i) solicit the customers or former customers of the Project with the intent of taking their custom;

(ii) employ or offer to employ any person who immediately before such employment or offer of employment was employed by the Franchisor and not directly or indirectly to induce such person to leave his or her employment

• Assignment

Not to assign, charge or otherwise deal with the Project in any way without the prior written consent of the Franchisor.

• THE FRANCHISER’S OBLIGATIONS
  • Permitting the Franchisee to continue the Project

5.1.1 To permit the Franchisee to carry on the business of setting up, operating and promoting the Burger Legal under the style ……………….. and use the Trademarks or such other names or styles as may be specified in writing by the Franchisor in relation thereto.

5.1.2 To permit the Franchisee to operate the business of providing Products and Services under the style ……………….. and use the Trademarks or such other names or styles as may be specified or approved in writing by the Franchisor from time to time 5.1.3 To permit the Franchisee to use the Intellectual Property Rights in relation to the Project.

• Management Advise

5.2.1 To provide the Franchisee, as the Franchisor considers appropriate from time to time, with management, sales and administrative advice in the conduct of the Project and such other advice as the Franchisor considers appropriate to promote the mutual business interests of the Franchisor and the Franchisee.

5.2.2 To furnish the requisite technical expertise and assistance as the Franchisor deems necessary to the Franchisee for the completion, management and promotion of the Project.

• Directions on Layout of Location

5.3.1 To provide the Franchisee with directions as to:

(i) the layout and colour scheme arrangements for the Project at the Location;

(ii) the plant and equipment and the fixtures and fittings to be used in the Project, as well as for the installation of the same.

• Supply Products and ServicesTo exercise its best endeavours to fulfil orders for the Products made by the Franchisee, provided always that the Franchisor shall be under no obligation to fulfil any order for the Products made by the Franchisee, if the Franchisee is at the time in default of his liability to pay his dues.To provide to the Franchisee the technical know-how and expertise for the entire range of “specialized treatments” as developed and formulated by the Franchisor and to update the Franchisee as regards any improvements thereupon.
  • Employ staff and training
    • To recruit and employ such sufficiently competent staff as the Franchisor deems necessary for the efficient conduct and management of the Project
    • To provide initial training to such of the employees as recruited by the Franchisor at the level which in the opinion of the Franchisor is adequate to instruct, in order to efficiently conduct specialized treatments and sell the Products at the Location.
    • To provide supplementary training as and when the Franchisor deems necessary during the Term as well as further training in new techniques or concepts developed by the Franchisor

• IP RIGHT’S OWNERSHIP
  • The Franchisee acknowledges and recognises the exclusive right of the Franchisor to the Intellectual Property rights including without limitation Trademarks as well as the insignia, logo-grams, designs and other Intellectual Property Rights associated with the Franchisor.
  • The Franchisee will observe the following requirements in the use of the Trademarks:

• Use them in a proper trademark sense in the manner as prescribed by the Franchisor from time to time;
  • In the case of such of the Trademarks as are registered indicate that such marks are registered by use of the symbol ‘®’ and that the Franchisee is a licensee of such marks;
  • Not encumber, sub-license, assign, transfer or otherwise deal with his rights to the Trademarks;
  • Under no circumstances on any occasion will the Franchisee register any business, trade or corporate name or style associated with the Franchisor.

• The Franchisee shall forthwith notify the Franchisor of any infringements of such Intellectual Property Rights of which the Franchisor becomes aware provided however that the prosecution of any claim with respect to any Intellectual Property Rights shall be the sole responsibility and undertaken at the absolute discretion of the Franchisor.

• INDEMINITY BY THE FRANCHISEE

The Franchisee covenants and agrees with the Franchisor that the Franchisee shall assume sole and entire responsibility for and indemnify and save harmless the Franchisor from any and all claims, liabilities, losses, expenses, responsibility and damages by reason of any claim, proceedings action, liability or injury arising out of the Franchisee’s conduct of the Project or as a result of the Franchisee’s relations with his customers and other third parties or because of any breach of this Agreement by the Franchisee.

• FURTHER TERM

Provided that there shall not be any prior or existing breaches or non-observances of any of the covenants, conditions, Agreements, and provisos on the part of the Franchisee contained in this Agreement, the Franchisor will upon the written request of the Franchisee given not less than 3 months prior to the expiration of the term of the franchise hereby granted, grant a further term of the franchise for……………….. years and the Franchisee will accept such further term upon the Franchisor’s then prevailing terms and conditions.

• TERMINATION

This Agreement shall terminate:

(A) On the expiry of the Term;

(B) On the occurrence of any of the following events which are fundamental breaches of this Agreement terminating it forthwith:

(i) in the event of a breach by the Franchisee of any provisions of this Agreement and subsequent failure to remedy the breach within thirty days of having been notified by the Franchisor;

(ii) failure to make the payments on any of the relevant payment dates as specified in the Agreement (time being of the essence);

(iii) any assignment or disposal of the Project or the Location by the Franchisee;

(iv) any challenge by the Franchisee to the validity of any part of the Intellectual Property Rights; provided that the Franchisor may waive any breach of this Agreement by the Franchisee.

(C) If the Franchisee goes into either compulsory or voluntary liquidation (except for the purpose of reconstruction or amalgamation) or if a receiver is appointed in respect of the whole or any part of its assets or if the Franchisee makes assignment for the benefit of or composition with its creditors generally or threatens to do any of these things or any judgment is made against the Franchisee or any similar occurrence in any jurisdiction affects the Franchisee.

(D) If the Franchisee engages in any conduct prejudicial to the Project or the marketing of the Products or Services generally.

(E) If any material change occurs in the management or control of the Franchisee particularly any change of directors or shareholders.

1. EFFECTS OF TERMINATION

10.1 Upon termination of this Agreement for whatever reason the Franchisee shall:

(i) Immediately cease to operate and conduct the Burger Legal, provide Services and sell Products, however it shall not be relieved of the obligation to pay any monies due to the Franchisor pursuant to this Agreement;

(ii) Cease to exploit any Intellectual Property Rights owned by the Franchisor or any company related to it and licensed to the Franchisee in respect of the Project;

(iii) Forthwith cease to use any of the Trademarks and to desist from using any trademark confusingly or deceptively similar to the Trademarks or the style BIOTIQUE;

(iv) Deliver to the Franchisor any documentation including without limitation manuals, catalogues, instructions, notes, publicity promotional and advertising material, samples, letterheads, business cards relating to the Project;

(v) The Franchisee will furnish to the Franchisor an inventory of the unsold stock held by it and transfer to the manufacturer or any person, firm or corporation designated by the manufacturer: (vi) The Franchisee shall if required by the Franchisor sell and deliver to the Franchisor:

(a) the fixtures and fittings and plant and equipment owned and used by the franchisee in the Project as may be selected by the Franchisor;

(b) the Franchisee’s unsold stock of the Products which are in good saleable condition as may be selected by the Franchisor.

(vii) The purchase price for such fixtures and fittings and plant and equipment selected by the Franchisor shall be as agreed upon by the Franchisee and the Franchisor and failing Agreement as fixed by a reputed valuer of such items appointed by the Franchisor and shall be paid by the Franchisor to the Franchisee within ……………….. days of the date of termination of the Agreement or within ……………….. days of the date of valuation by a valuer, whichever is later, and the fee of the said valuer shall be paid by the Franchisee.

(viii) The sale to the Franchisor of the Franchisee’s unsold stock of the Products selected by the Franchisor shall be at the same price as given by the Franchisor to the Franchisee

(ix) Any freight charges incurred by the Franchisor in the acquisition by it of the Franchisee’s fixtures and fittings and plant and equipment and unsold stock of the products as aforesaid shall be paid by the Franchisee.

(x) The Franchisee shall permit and authorise the Franchisor to have reasonable access to the premises at which the fixtures and fittings, plant and equipment and unsold stocks are then located so as to enable the Franchisor to inspect and to take possession of any such items if purchased.

1. DAMAGES

Most specifically the FRANCHISEE acknowledges that:

(i) the FRANCHISOR has expended considerable time, investment and efforts in:

(a) locating an appropriate FRANCHISEE at an appropriate location;

(b) entering into discussions and negotiating with the FRANCHISEE;

(c) training the FRANCHISEE’s personnel;

(d) helping the FRANCHISEE build up considerable goodwill in its Centre so as to increase business.

(ii) the premature termination of this Franchise Agreement would result in huge losses to the FRANCHISOR which would then have to:

(a) locate another appropriate FRANCHISEE;

(b) invest in the FRANCHISEE Center by training personnel etc.;

(c) build-up goodwill in the new Centre so that the business of the new FRANCHISEE matches up to that of the earlier FRANCHISEE.

1. ENTIRE AGREEMENT

This Agreement sets forth the entire Agreement and understanding between the parties as to the subject-matter of this Agreement and merges all prior discussions between them and neither of the parties shall be bound by any conditions, definitions, warranties or representations with respect to the subjectmatter of this Agreement other than as expressly provided in this Agreement as duly set forth or subsequent to the date in writing and signed by a proper and duly authorized representative of the party to be bound thereby.

1. FORCE MAJEURE

The Franchisor shall not be liable to the Franchisee for any loss by the Franchisee caused by the failure of the Franchisor to observe the terms and conditions of this Agreement and on his part to be observed and performed where such failure is occasioned by any cause beyond the Franchisor’s reasonable control including the failure of the Franchisor to supply or delay in supplying any goods to be supplied by the Franchisor to the Franchisee whether on account of inter alia war, insurrection, fire, flood, earthquake, strikes, lock-outs, the unavailability of raw materials or similar cause.

1. WAIVER

Any waiver by the Franchisor of a breach of this Agreement or any other subsequent Agreement to which it may be a party in consequence of this Agreement shall not be deemed to be a waiver of any subsequent breach.

1. SEVERABILITY

If any provision of this Agreement is invalid or unenforceable, the balance of this Agreement shall remain in effect, and if any provision is inapplicable to any person or circumstances, it shall nevertheless remain applicable to all other persons and circumstances.

1. JURISDICTION

16.1 This Agreement shall be governed by Indian law in every particular including formation and interpretation and shall be deemed to have been made in India.

16.2 Any proceedings arising out of or in connection with this Agreement shall be brought only before the court of competent jurisdictions in ……………….

1. NOTICES

17.1 Any notice, request or other communication required to be given under this Agreement shall be served personally or mailed to the other party by registered post, addressed to the parties at their respective addresses set out at the beginning, or at any other address that each party shall provide to the other in writing.

17.2 Any notice served personally shall be considered given at the time of service. Any notice given by registered post shall be deemed to have been received within five days after the date of posting as shown on the post office receipt.

IN WITNESS WHEREOF, the Parties have executed this Agreement, as of the day and year first written above.

On behalf of Burger Legal Pvt. Ltd.

SIGNED AND DELIVERED BY:

(Name and designation)

SIGNED AND DELIVERED BY:

(Name and designation)

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