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Month: September 2022

Mistake

Mistake must be a “vital operative mistake “ i.e. it must be a mistake of fact which is fundamental to contract. To be operative so as to render the contract void, the mistake must be:

(a) of fact, and not of law or opinion;

(b) the fact must be essential to agreement, i.e., so fundamental as to negative the agreement; and

(c) must be on the part of both the parties.

Thus, where both the parties to an agreement are under a mistake as to a matter of fact

‘Mistake’ is not defined in the Indian Contract Act. Section 20, 21 and 22 deals with the concept related to mistake. ‘Mistake’ can be defined as any action, decision or judgement that produced an unwanted and unintentional result. A Mistake is said to have occurred where parties intending to do one thing by error do something else. 

Case Law– Phillips V/S Brooks Ltd.- In this case it was held that a person is deemed to contract with the person in front of them unless they can substantially prove that they instead of them intended to deal with another person.

Illustration– A agrees to sell to B a specific cargo of goods supposed to be on its way from England to Bombay. It turns out that, before the day of the bargain, the ship conveying the cargo had been cast away, and the goods lost. Neither party was aware of these facts. The agreement is void.

Mistakes are of two kinds:

(i) mistake of law, and

(ii) mistake of fact.

Mistake of Fact

A mistake of fact arises when one or both of the contracting parties have misunderstood a term that is essential to the meaning of the contract; Such a mistake may be done due to confusion, negligence or omission, etc A mistake is never intentional, it is an innocent overlooking. Such mistakes can be either unilateral or bilateral

Bilateral Mistake (Section 21)

When both the parties to a contract are under a mistake of fact, essential to the agreement, such a mistake is known as a bilateral mistake. Bilateral mistakes are also sometimes referred to as mutual or common mistakes. All the parties do not agree to the same thing and in the same way, which is the concept of consent. Since there is no consent, the contract is null and void.

Example

‘A’, agrees to buy a cow from ‘B’, but it turns out that the cow was dead at the time of the deal, although the fact was not known to any party. The arrangement is considered invalid.

Unilateral Mistake (Section 22)

A unilateral mistake occurs when only one party to the contract makes a mistake. The contract will not be void in such a case. It is specified in Section 22 of the Act that the contract will not be void just because one party made the mistake. So if only one party has made a mistake the contract remains a valid contract.

Example

‘A’ enters into an agreement with ‘B’ for the purchase of a horse which he assumes to be a racing horse. ‘A’ is not confirmed from ‘B’. In actuality a horse is not a racing horse. ‘A’ cannot rescind the contract.

(a)Mistake as to existence of the subject matter: Where both parties believe the subject matter of the contract to be in existence but in fact, it is not in existence at the time of making the contract, there is mistake and the contract is void.

Example

‘A’ and ‘B’ are involved in a contract to sell a horse in a specific amount. But, horse dies before the contract is performed and both the parties (A and B) are unaware of this fact that the horse does not exist. In this case, the Contract is void.

(b)Mistake as to identity of the subject matter: Where the parties are not in agreement to the identity of the subject matter, i.e., one means one thing and the other means another thing, the contract is void; there is no consensus ad idem.

Example

‘A’ and ‘B’ made a contract in which ‘A’ promise to sell his car to ‘B’. ‘A’ has two different types of car (one for racing and other for tourism purpose). Here, the real identity of the car is not clear and both the parties are thinking about different types of car. In this case, the Contract is void.

(c)Mistake as to quantity of the subject matter: There may be a mistake as to quantity or extent of the subject matter which will render the contract void even if the mistake was caused by the negligence of a third-party.

Example

‘A’ and ‘B’ made a contract in which a transaction of 200 pens in return of some amount involves. But 100 pens are sold early by the brother of ‘A’ before the contract could be performed and both the parties (A and B) were unaware of this fact that only 100 articles do exist. In this case, the contract is void.

(d)Mistake as to quality of the subject-matter or promise: Mistake as to quality raises difficult questions. If the mistake is on the part of both the parties the contract is void. But if the mistake is only on the part of one party difficulty arises.

Example

‘A’ and ‘B’ made a contract together in which ‘A’ sold his car in return of some amount to ‘B’. They believed that the car is for racing purpose but the car was for tourism purpose. In this case, the Contract is void.

(e)Mistake as to the price of subject matter

‘A’ and ‘B’ made a contract to sell things in consideration for some money which was not a valid amount and both the parties (A and B) are unaware of this fact. In this case, the Contract is void.

(f)Matter as to the performance of subject matter

Sometimes, a contract is made but during the performance of the same, we come to know that it is impossible to fulfill the performance of the contract. The agreement is void where there is a mistake as to the possibility of performance. Impossibility is an excuse for non-performance of a contract. Impossibility can be of two types:

  • Physical impossibility: Any performance of the contract when physically impossible, can be taken up as an excuse for non-performance of duties under a contract and contract will be void. For example- a painter made a contract with a person to paint a house but before the performance of duties, the house burns. Now, it is impossible for the painter to perform his duties under the contract. Thus, it is considered as an excuse for non-performance of duties.
  • Legal impossibility: Any performance of the contract is when legally impossible, can be taken as an excuse for non-performance of duties under a contract and contract will be void. For example- any amendment made by legislation which makes it impossible to fulfil the performance of duties under the contract.

Unilateral Mistake as to Nature of the Contract

The general rule is that a person who signs an instrument is bound by its terms even if he has not read it. But a person who signs a document under a fundamental mistake as to its nature (not merely as to its contents) may have it avoided provided the mistake was due to either-

(a) the blindness, illiteracy, or senility of the person signing, or

(b) a trick or fraudulent misrepresentation as to the nature of the document.

Mistake of law

The mistake may be related to the mistake of Indian laws, or it may be a mistake of foreign laws. If the mistake applies to Indian laws, the principle is that the  law’s ignorance is not a sufficiently good excuse. This means that either party cannot claim that it is not aware of the law.

The Contract Act states that, on the grounds of ignorance of Indian law, no party can claim any relief. This will also include an incorrect interpretation of any legal provisions.

However, similar treatment is not given to ignorance of foreign law. Ignorance of foreign law provides some leeway, the parties are not expected to know foreign law and its meaning. Therefore, under the Indian Contract  Act, an error of foreign law is actually treated as a mistake of fact.

Mistake of Law can be of two types:

1. Mistake of Indian Law: “Ignorantia Juris non excusat” is a Latin maxim which means “Ignorance of the law is not excused”. If a person takes part in a contract without knowing any specific provisions of Indian Law (which is essential for that contract), then Contract is not voidable because everyone is supposed to know the law of his country. A and B make a contract grounded on the erroneous belief that a specific debt is barred by the Indian Law of Limitation, then the contract is not voidable.

2. Mistake of Foreign Law:– If a person takes part in a Contract without knowing any specific provisions of Foreign Law (which is essential for that contract), then that mistake is treated as a mistake of fact i.e, the contract is void if both the parties under a mistake as to a foreign law because one can not be expected to know the law of other foreign countries.

SEC 21 Effect of mistake of law-

A contract is not voidable because it was caused by a mistake as to any law in force in India; but a mistake as to law not in force in India has the same effect as a mistake of fact. Grant v. Borg– In this case, the person was not knowing the clauses of the Immigration Act 1971, for staying beyond the time by the leave. Here, he cannot apply for defense under the mistake of law.

SEC 22-

Contract caused by mistake of one party as to matter of fact- A contract is not voidable merely because it was caused by one of the parties to it being under a mistake as to matter of fact. The State of Maharashtra v. Mayer Hans George– In this case, A is an officer of the court and he is ordered to arrest Y. A arrests Z by mistake, as he believes Z is Y. Here, A can take the base of bonafide intention as a defense in the mistake.

Common Mistake

When both parties are mistaken for the facts related to the subject matter of the agreement. The court can declare the entire agreement as void in such kind of mistake. If the contract contains a small error relating to the subject matter, then there is a very less chance that the court will rule that the contract is void. If any part of the contract that does not contain a mistake is still valid.

Conclusion

All agreements are contracts if they are made with the free consent of parties who are legally able to enter into contracts, for a legitimate consideration, and with a lawful intent, according to Section 10 of the Indian Contract Act, 1872. The Indian Contract Act’s Section 14 states that, “Subject to the provisions of Sections 20, 21, and 22, consent is deemed to be free where it is not the result of error.” There are two different kinds of errors: legal errors and factual errors. Mistakes in fact are acceptable justifications for failing to fulfill contractual obligations, while mistakes in law are not acceptable justifications.

DOCTRINE OF LIS PENDENS

Introduction

The Transfer of Property Act, 1882, was promulgated embodying the principles of English Common Law, namely equity, good conscience, and justice underscored by the provisions of the Indian Contract Act, 1872, and came into force from July 1, 1882. Property or ownership are synonymous with each other, and ownership interest is automatically created when a right is vested.

Ownership has to be:

  1. Indefinite in point of the user – The owner may use the property subject to some restrictions without injuring the rights of other persons, but at no point in time will it negate the ownership in the property even if the rights may be curtailed.
  2. Unrestricted in the point of disposition – The owner has an unfettered right to dispose of the property. However, there are exceptions to this as minors (those below the age of 18) can be owners but cannot alienate the property. Also, the Government may acquire the property for specific purposes irrespective of the property owner’s consent.
  3. Unlimited in the point of duration – As long as the property in question exists, the property rights are heritable. Again, the Government can, at any point, acquire the property and terminate the owner’s rights.

The Transfer of Property Act covers transfers inter vivos, i.e., between two living persons. A transfer is defined as an act by which living persons convey the property to one or more living persons. The transferee can get the transferor’s rights and nothing more, where the owner is the transferor, and the transferee is the person or persons to whom the rights are conveyed. The first amendment to the Transfer of Property Act, 1882, was in 1929, whereby the definition of living persons was amended to include companies, associations, and bodies of individuals, whether incorporated or not.

Origin

The Doctrine of Lis Pendens has its origin by Lord Justice Turner in Bellamy Vs. Sabine, 1857 Where the Court observed the following:

“This is a doctrine common to law and equity courts, which I apprehend, on the grounds that, if alienation pendente lite was allowed to prevail, it would simply not be possible for any action or suit to be resolved successfully. In any case, the Plaintiff will be responsible for the Defendant who alienated the property before the judgment or the decree and must be obliged, according to the same course of action, to initiate these proceedings de novo.”

The facts of the above case were the following:

A person, Mr X, sold an immovable property to Mr A. Mr X’s son, Mr Z, who was the heir of Mr. X, sued Mr A in a competent court to declare the sale as void. However, while this litigation was pending, Mr. A sold the property to Mr. B, who did not take notice of the suit. The Court held that the son Mr. Z was entitled to the property and the sale was set aside. Mr. B who purchased the property from Mr. A does not get any title as he purchased the property from someone who did not have the title and therefore cannot convey it.Therefore, evolving the principles of common law and Section 52 of The Transfer of Property Act, 1882, was born and is as follows:

When there is an ongoing lawsuit in any Court having authority within the limits of India, a suit or proceeding in which any right to immovable property is precisely in question, the property cannot be conveyed by any party to the lawsuit which can influence the rights of any other party thereto under any order which may be rendered therein, unless under the jurisdiction of the Court and on such conditions as it may enforce.

Lis Pendens literally means ‘litigation pending’ or ‘pending suit’ and is drawn from the concept based on the maxim “Pendente lite nihil innovature” which means that nothing new must be introduced while a litigation or suit is pending.

This Doctrine states that the Transfer of property shall be restricted when there is a litigation pending on the title or any rights that arise directly thereof involving an immovable property. The suit commences the moment a complaint is presented or the day of commencement of proceedings in the appropriate Court and shall be terminated by Order of the Court. The Court may, however, permit any party to the suit to transfer the property on such terms which it may think fit and proper to impose. The sale of immovable property can take place through private negotiations, but the said Transfer will be subservient to the verdict of the competent Court.

The purpose of the Doctrine of Lis Pendens

This Doctrine is essential as it prevents Transfer of the title of any disputed property without the Court’s consent, there can be endless litigation, and it will become impossible to bring a lawsuit to a successful termination if alienations are permitted to prevail, and covenants are not imposed.

The ‘Transferee pendente lite’ is bound by the verdict just as if he were a party to the suit and the transfer shall be subservient to the result of the pending lawsuit. Let us understand the various conditions that need to be met for the doctrine to apply:

Conditions for Applicability of the Doctrine as provided in Section 52

  • A suit or proceeding is pending.
  • The above suit is brought to a competent court within the jurisdiction.
  • The right to the title of an immovable property is directly in question.
  • There cannot be any collusion.
  • The suit should directly affect the rights of the other party.
  • The property in question is being transferred by either party.

Some examples for Non-Applicability:

  • This does not apply to a private sale by a creditor who holds the right to dispose of the property that is mortgaged to it even when the borrower has a redemption suit pending.
  • The Doctrine also does not apply when the property is not described correctly, making it unidentifiable.
  • In a maintenance suit, where the property is mentioned only so that maintenance payments can be determined transparently; the Doctrine does not apply when a right to the said immovable property is not directly in question and alienations are thereby permitted.
  • The Doctrine fails to apply when a Court orders restoration of immovable property under the Civil Procedure Code, Order 21, Rule 63.

Understanding the jurisprudential View

In Ayyaswami vs Jayaram Mudaliar AIR 1973 SC 569, the Court held that the purpose of this provision is not to deprive the parties of every just or fair argument but rather to guarantee that the parties submit themselves to the jurisdiction and authority of the Court which shall determine all claims that are placed before it to the satisfaction of the parties concerned.

In the case of Hardev Singh v. Gurmail Singh, Civil Appeal No. 6222 of 2000, the Court ruled that Section 52 of the Transfer of Property Act, would not make void or unlawful any sale of the contested properties, but only puts the purchaser beyond the binding limits of the judgment on the disposition of the conflict.

In the case of Koyalee v. Rajasthan District, AIR 2009 Raj.28, the land in question was originally registered in the name of the Plaintiff’s husband. After his death, his brother realised and knowing well that the wife of his brother was alive and was the sole legal heir, filed a lawsuit pursuing the Khatedari rights, and pursuant to this, the wife had to contest that she was the sole legal heir of the recorded Khatedar. The brother further went on to transfer the land despite the lawsuit that was pending, since this was done without seeking the Court’s permission the transfer was struck down under Section 52 of the Transfer of Property Act as per the Doctrine of lis pendens.

In Vinod Seth v. Devinder Bajaj, 2010, though reiterating its power to exclude the suit property from the limitations set out in Section 52 of the Act, it has allowed the Respondent to make a pendente lite move. These exemptions under Section 52 are, however, subject to certain conditions imposed by the Court. In the case at question, the Plaintiff was a contractor who wished to make a profit by constructing a building on the suit-land, and the Defendant wanted to move it to a third party. A total of three lakh rupees was to be deposited as a security by the Defendant to transfer the property in question, The sum the claimant would have profited by. The Court had thus levied the condition for the payment of that sum, which would make the pendente lite transfer legitimate.

The Court’s positions on this pendente lite-transfers issue are explained in Ashok Kumar v. Govindammal and Anr, 2010. The Supreme Court of India has here reaffirmed that a pendente lite cannot be transferred for a property whose title is the subject of litigation.

These transfer payments would limit the rights of the party to whom the Court would eventually have agreed that the property would be given the title. Where the right of the pendente lite transferor to the property is upheld under the decree of the Court, then the title of the transferee to the property is disregarded. However, if the title of the  pendente lite transferor is acknowledged only for a smaller portion of the property, only for that portion of the property can a transferor have the title. The Transfer of the title of the rest of the land, for which there is no right for the pendente lite transferor, is invalid. This means that the transferee cannot claim the title or any other interest in the rest of the property. Finally, if the transferor was found to have no right in the first place to the transferred land, then the transferor would also not have gained rights on this property.

The Supreme Court discussed and amended the law concerning the Doctrine of lis pendens in Har Narain v Mam Chand, in compliance with Section 47(2) of The Registration Act, 1908. The lis pendens doctrine states that no fixed property may be transferred when a lawsuit relating to it is pending. Under Section 47, from the date of execution, a recorded sale deed of a fixed property is considered to exist upon registration. The Court made it clear that the fiction produced pursuant to Section 47 does not prohibit lis pendens from functioning. Thus, if the civil action starts and is registered later, the Court held that land sales are still subject to the principle of lis pendens.

To digitize all property records, while the Doctrine is necessary to ensure that the property rights of the parties involved are protected, it is also imperative that technology be employed so that the property title in question does not get transferred while the case is pending. This can be achieved by the complete digitalization of property records wherein all properties are accorded a property identification number, this along with the fact that India has already created a Unique Identification System for all its citizens via the Aadhaar card can be combined to ensure that the integrity and sanctity of the data are never in question. This will also help in avoiding cases where the property cannot be identified. When an encumbrance certificate (EC) is issued, it mentions any encumbrance. This can be improved, so as to list any pending litigation(s) to alert the registering authority and the parties concerned.

How Lis Pendens Work

Lis pendens is literally translated from Latin as “suit pending.” This condition can adversely affect the sale price or the possibility of a sale since any pending litigations are typically unfavorable for the owner. The term is commonly abbreviated “lis pend.”

Lis pendens provides constructive notice, or a warning, to prospective homebuyers that the ownership of a property is in dispute and litigation is pending. Lis pendens can only be filed if a claim is related specifically to the property. By filing a lis pendens, an individual or entity is protecting its claim to the title pending the lawsuit’s outcome.

When a Lis Pendens Is Used

Lis pendens can be used anytime there is a dispute over real property, but most of the time, it is used in three situations.

Divorce

A lis pendens is often filed in divorce cases where the distribution of real estate properties has not been settled. It is particularly common in cases where a property is listed in the name of one spouse, and the other spouse seeks a portion of the asset. The spouse whose name is on the title would have difficulty selling the property under pending litigation.

Mortgage Default/Foreclosure

Lis pendens is almost always used by lenders who have filed a notice of default on a delinquent borrower. Banks use the procedure to notify the public that a property is in foreclosure. Other creditors whose debt is secured by property can also foreclose on a property.

Contract Disputes

It is not uncommon for lis pendens to arise in contract disputes, where a buyer feels they have been wrongly excluded from purchasing a home. For example, if buyer A and a seller enter into a contract for the sale of a home and the seller decides to sell the house to buyer B, buyer A may sue the seller to enforce the sale.

The buyer can file a lis pendens after filing a lawsuit, making it difficult for the seller to sell the house. If buyer B proceeds with the purchase and the courts determine that buyer A is entitled to enforce the sale, buyer B loses the property to buyer A and must go to the seller to get their money back.

How to File a Lis Pendens

A lis pendens can only be filed if an action is pending. Additionally, the pending suit must involve real property, such as land and buildings. If these requirements are not met, the notice can be expunged.

Filing requirements vary by state, but generally, there are two steps. First, a lawsuit must be filed with the county clerk, and the suit must be pending. Second, the lis pendens must be recorded in the county land records so that it can be attached to the property’s title. Filing the lis pendens generally serves as the notice that there is a dispute on the property, but the requirements to serve notice also vary by state.

Because lis pendens requirements vary by state, you should contact a real estate lawyer in your area to learn if you need to file one and how it is served. It is possible to draft a lis pendens yourself based on information you can find online; however, this is a complex document that uses specific wording.

Conclusion

The doctrine of Lis Pendens is strictly based on the theory of necessity rather than on the theory of notice governed by the principles enshrined in common law, namely Justice, Equity and Good Conscience. It is, therefore, pivotal in ensuring that justice is provided without injuring the rights of either party. A lis pendens is an official notice to the public that a lawsuit involving a claim on a property has been filed. Lis pendens is connected to the concept that a property buyer must assume any litigation that exists pertaining to the property.

Defamation

Defamation is the publication of a statement which reflects on a person’s reputation and which tends to lower a person in the estimation of right thinking members of society generally, or, which tends to make him shun or avoid that person (Winfield).
This definition is wider than those, which define, defamation to mean the publication of a statement which tends to bring a person into hatred, contempt or ridicule. Imputations of insincerity or insolvency etc., which may arouse only sympathy or pity
in the minds of reasonable people, are also covered by the above definition.

A man’s reputation is considered valuable property and every man has a right to protect his reputation. This right is acknowledged as an inherent personal right and is a jus in rem i.e., a right good against all persons in the world. Defamation refers to any oral or written statement made by a person which damages the reputation of another person. As per Black’s Law Dictionary, defamation means “The offence of injuring a person’s character, fame, or reputation by false and malicious statements”. If the statement made is written and is published, then it is “libel”. If the defamatory statement is spoken, then it is a “slander”.

    In the case of D.P. Choudhary Vs Manjulata A.I.R 1997 Raj 170  the plaintiff-respondent was a 17-year-old college student. There was a publication in the local news report of daily, Dainik Navjyoti, dated 18/12/77 that she ran away with a boy namely Kamlesh at 11 a.m.after she went out of the house by saying she was having lectures. The news item so published was wrong and was published negligently. She was shocked and was having bad effects on her known one and marriage prospects. It was therefore held that the words so published were defamatory and were actionable per se. she has entitled with an award Rs. 10000/- by way of general damages

Libel Slander
It is addressed to the eyes.It is addressed to the ears.
The defamatory statement is made in some permanent and visible form, such as writing, printing, pictures and effigies.The defamatory statement is made by spoken words or some other transitory form, whether visible or audible, such as gestures, hissing or such other things.
It is an actionable tort as well as a criminal offence.It is a civil injury only and not a criminal offence except in certain cases.
It is actionable per se (in itself) i.e., without proof of actual damage.It is actionable only on proof of actual damage.

Essentials:


The statement or words must be:
i) False
ii) Spoken (slander) or written (libel)
iii) Defamatory and
iv) Published.
i) False: The words used must be false. In fact, truth is a clean justification. It must be shown that the imputation was false and malicious.
ii) The words may be spoken as in slander or may be in writing i.e., in a permanent form as in libel. Any writings, publication in a newspapers, sky writing, cinematography film, etc., are covered under libel. The leading case is Youssoupoff V. M.G.M.
Pictures. The defendant D, produced a film named “Rasputin, the mad monk”. In that film, one princess “Natasha” had been raped by Rasputin, the mad monk. The princess Irina of Russia, the wife of prince Youssoupoff (plaintiff) claimed compensation on the ground that it was clearly understood that the reference was to prince Irina. The jury awarded 25,000 pounds as compensation and this was confirmed by the Court of

The Statement must be defamatory- Defamation starts with someone making a statement, and any person who makes a defamatory statement can be held liable for defamation. A defamatory statement tends to diminish the good opinion that others hold about the person and it has the tendency to make others look at him with a feeling of hatred, ridicule, fear or dislike. Abusive language may also be defamatory, for example, to call a man hypocrite or a habitual drunkard. A few illustrations to understand what is defamatory and what is not. To say a motorist drives negligently is defamatory. To criticize goods is not defamation. To say that a baker’s bread is always unwholesome is defamatory. To state that a person has not that degree of skill which he holds himself as possessing is defamatory.

  • The intention of the wrongdoer- The person making the defamatory statement knows that there are high chances of other people believing the statement to be true and it will result in causing injury to the reputation of the person defamed.
  • The Statement should be false- A defamatory statement should be false because the truth is a defence to defamation. If the statement made is true then there is no defamation as the falsity of the statement is an essential ingredient of defamation. The law does not punish anyone for speaking the truth, even if it is ugly.
  • The Statement should not be privileged- In some cases, the statements may be privileged i.e. the person who has made the statement is protected from such liability.
  • The Statement must be published- For defamation to occur, the statement should be published. The statement should be communicated to a third party. Any statement written in a personal diary or sent as a personal message does not amount to defamation, but if the sender knows that it is likely that a third person may read it, then it amounts to defamation. In Mahendra Ram v. Hartnandan Prasad, A.I.R 1958 Pat 445. The defendant was held liable because he had sent a defamatory letter written in Urdu despite knowing the fact that the plaintiff could not read Urdu and ultimately the letter will be read by someone else.

The third party believes the defamatory matter to be true- The other people of the society believe that the defamatory matter said about the plaintiff is true.

The Statement must cause injury- The statement made should harm or injure the plaintiff in some way. For example, the plaintiff lost his job because of the statement made.

Publication

words must be published: publication is an essential requirement. Whether a statement tends to lower a person’s reputation is decided by the standard of a reasonable man. Publication means publishing a particular item of news or information to a person, other than the person to whom it is addressed.

  1. If A writes to B, defaming B and sends the letter by registered post, there is no publication and therefore A is not liable.
  2. If A writes a post-card defaming B, and sends by post, there is publication if an inquisitive postman reads and publishes. A is liable in such a case. (Robinson V. Jones)
  3. If A dictates to his steno defaming B and if the steno publishes it, there is publication.
  4. In Huth V. Huth, A sent a defamatory letter in an unsealed cover to B. B’s butler, without authority opened and read it, held, that there was no publication as B had no authority to see.

Repetition of defamatory words

Generally, the person who first makes a defamatory statement is not liable if the statement is republished by another person even though he expressly states that he is reproducing what he has heard from some source. However, no person has the right to repeat a slanderous statement without any justification. If a person who is aware that a defamatory statement is false and still repeats or communicates it further, then he can also be held liable for defamation.

Defamation by omission

There may be publication by omission. Failure by a defendant authorized and able to remove defamatory matter which is the work of another is publication by him. For example, if someone puts up a defamatory letter on the notice board of a club and the person in charge has not removed it within a reasonable time, then he will be accountable.

Measures of Damages In Defamatory Publication

The Court must take the following things into consideration while deciding the question of compensation in a defamatory publication:

  1. The conduct of the plaintiff.
  2. His position and standing in society.
  3. The nature of libel.
  4. The absence or refusal of any retraction or apology of libel.
  5. The whole conduct of the defendant from the date of publication of libel to the date of the decree.

In Gorantla Venkatashwarlu V. B.Demudu the respondent was a bank officer and was sent on deputation to work as the Managing Director of Co-operative society. The appellant, the President of Society sent a complaint to the Bank alleging that the respondent had illicit connections with ladies which affected the image of the society during his tenure as the Managing Director. The respondent sent a reply denying the allegations made against him. The branch manager of the bank conducted an inquiry and found out that the allegations were false and were made only with a view to see that the respondent is not deputed to inspect the affairs of the society. The respondent filed a suit of defamation claiming damages of Rs. 20,000. The court held that the allegations were per se defamatory and the appellant was liable to pay damages. However, the court considered the fact that the allegations were made known only to staff and the Bank and there was no wide publicity, so the appellant was liable to pay Rs. 5000 as damages.

Certain exceptions to Defamation are:

1. The published statement was true,

2. Non-discriminatory ideas made in the public interest in terms of real events,

3. Certain persons have been given the right to make statements even if they are defamatory, for example, judicial and Member of Parliament.

Defamation VS. Freedom of Speech

The question that arises is whether liability arising out of defamation is a violation of the right to freedom of speech and expression. As we know that there is no specific fundamental right to privacy, the judicial interpretation includes it as a dimension of the right to life and liberty guaranteed under Article 21 of the Constitution. So the right to reputation also comes in the ambit of Article 21.

In the case of Subramanian Swamy V. Union of India,(2016) 7 SCC 221 a petition regarding the decriminalization of defamation was filed. The petition challenged the constitutional validity of Section 499 and 500 of the Indian Penal Code, 1860 is an unreasonable restriction on the freedom of speech and expression. The apex court held that criminal defamation under Section 499 and 500 did not violate Art. 19(1)(a) as it is a reasonable restriction under Art. 19(2). The term ‘defamation’ in Art. 19(2) includes both civil and criminal defamation. Section 499 and 500 IPC was held to be non-discriminatory and non-arbitrary and not violative of the right to equality guaranteed under Art. 14 of the Constitution. While in a democracy an individual has a right to criticize and dissent, but his right under Art. 19(1)(a) is not absolute and he cannot defame another person as that would offend the victim’s fundamental right to reputation which is an integral part of Art. 21 of the Constitution.In shereya Singhal V. Union of India, the petitioners challenged the validity of Section 66A of the Information Technology Act (ITA) contending that it was not a reasonable restriction on the freedom of speech and expression guaranteed under Art. 19(1)(a) of the Constitution. They argued that the impugned section was unconstitutional because it provided protection against annoyance, inconvenience, insult, injury, or criminal intimidation which is not covered in Art. 19(2). The court found section 66A of (ITA) to be vague and invalidated it on the ground of being violative of the right to freedom of speech and expression.

Defenses available against Defamation

Justification:Truth or justification is a very good and complete defense. Defamation is the injury to a man’s reputation and if there is truth in the statement, then there is no defamation. The person is not lowered, but is placed to his proper level. The substance of the statement must be true, not merely a part of it. “How, a lawyer treats his clients” was an article which dealt with how a particular lawyer was treating his client. Held the article was in-sufficient to justify the heading. (Bishop V. Lautiar)
ii) Fair Comment: The comment must be on a matter of public interest. Honest criticism is essential for the efficient working of democratic public institutions. The Government and its institutions may be criticized.

The main principles relating to the defence of fair comment have been stated by Duncan and Neill as follows:

  1. The matter commented must be of public interest. The Government and its various wings and establishments and public institutions may be criticized. Novelists, Dramatists, Musicians, Actors, etc., may be criticized.
  2. Fair comment must be an expression of an opinion and not an assertion of facts. Plaintiff was advertising in papers as a specialist in E.N.T the defendant commented on him as “a quack of the rankest species”. Held: that it was a comment, the Court always looks to the merit of the comments.
  3. The comment must be fair: Mere violence in criticism by itself will not make the statements unfair.
  4. Comment must be malicious. Even fictitious name may be used. That by itself will not render the statement unfair.
  5. The same approach is followed in India. Any matter or subject which attracts public attention and is a matter of public interest. For example, A puts allegations on B of being corrupt in a newspaper. If A is not able to prove that the allegations were true, then his comment will not be considered fair comment.
  • Fair comment and justification distinguished

The plea of fair comment is available only in respect of both facts and opinion, it is not necessary to prove the truth of the comment. When justification is pleaded in respect of matters of opinion, the defendant must prove not only that he honestly held the views expressed but also that they were accurate.

Privileges:

Privileges are of two Kinds: absolute and qualified.

Meaning of privileges: They are occasions on which there ought to be no liability for defamation. This is because the public interest outweighs the plaintiff’s right to his reputation.
Privileges are absolute when the communication is of paramount importance. Such occasions are protected, however malicious or outrageous they may be. The defendant may make statements even if they are false.


Examples for absolute privileges:
• Statements made in Parliament or Legislature.
• Reports, papers, etc., of either House of Legislature.
• Judicial proceedings.
• Communications between solicitor (advocate) and his client.
• Communication between one officer and a foreign officer.
Statements are qualified when the person makes the statement honestly even though they are false

  1. Fair and accurate reports of Parliamentary debates, and proceedings.
  2. Fair and accurate reports published in newspapers. Similarly broadcasting.
  3. Statement made in pursuance of duties. A reports to B. about the conduct of C. If it is A’s duty to report and if he is to protect the interest of B, he may make c statements about C.
  4. Where A and B are having a common interest to be protected. Statements made about the plaintiff P between A and B themselves are protected.
  5. Statements made in self-protection and self-defense to procure redress of public grievances is protected.

  1. Absolute Privilege

It gives the person an absolute right to make the statement even if it is defamatory, the person is immune from liability arising out of defamation lawsuit. Generally, absolute privilege exempts defamatory statements made:

  1. during judicial proceedings,
  2. by government officials,
  3. by legislators during debates in the parliament,
  4. during political speeches in the parliamentary proceedings and,
  5. communication between spouses.  

Parliamentary privilege in the Indian Constitution

Article 105 and 194 of the Indian constitution gives certain rights, immunity to the members of the Houses of Parliament. The members of the Parliament have been vested with the freedom of speech. This freedom is different from the freedom of speech and expression guaranteed under Art. 19(1)(a), as the freedom in Art. 105 and 194 are specifically for the members of the Parliament and is subject to rules and orders which regulate the parliamentary proceedings. Art. 19(1)(a) does not protect an individual absolutely for what he says and is subject to reasonable restrictions under Art. 19(2). The term freedom of speech in Art. 105 states that a member of Parliament shall not be liable to any proceedings, civil and criminal, in any court for the statements made in debates in the Parliament. The second clause of Art. 105 confers immunity, inter alia, in respect of anything said in Parliament the word anything is of the widest import and is equivalent to everything. The only limitation is that the words must be spoken during the sitting of the Parliament. This freedom is given even to non-members like the Attorney General of India so that every member can participate freely in the debates and discussions without any fear. In P.V. Narsimha Rao v. State (JMM Bribery Case)(CBI/SPE) (1998) 4 SCC 626 , the apex court held that the privilege in Art. 105(2) which gives immunity from court proceedings extends even to taking of bribes by the members of Parliament for the purpose of voting in a particular manner in Parliament.

2. Qualified Privilege

 When a person making the statement has a legal, social or moral duty to make it and the listener has an interest in it, then the defence of qualified privilege is allowed. Following are the instances where this defence can be availed of: 

  1. Reference for a job applicant, 
  2. Answering the police inquiries, 
  3. A fair criticism of a published book or film in a review, 
  4. communication between parents and teachers, 
  5. communication between employers and employees, 
  6. communication between traders and credit agencies are all relationships that are protected by qualified privilege.  

These privileged communications must relate to the business at hand, even if what was said was untrue. However, this does not give a licence to say false statements, the person making the statement must believe it to be true. This defence can fail if it is proved that the defamatory statement was made with a malicious intention. Discussions on government and political matters which are subjects for public debates are covered under this defence. For example, a teacher tells the parents about the child’s habit of stealing and warns them. In this case, the teacher can take the defence of qualified privilege as he made the statement in good faith and in the interest of the child.

  • Statement of Opinion

 If the statement made is an opinion and not a statement of fact, then it cannot be defamatory. For example, if a person says that he finds an actor ugly, the statement is just an opinion. However, if he says that the actor is a drug addict or has had multiple affairs, then it will be a defamatory statement. If this statement results into the actor losing work or his job and the statement made are false, then there will be a case for defamation.

  • Consent

If the plaintiff consents to the statement made, then there is no defamation. The consent of the plaintiff gives absolute privilege to the publisher, it is immaterial whether the plaintiff knew that the information approved for publication was defamatory or not. Consent may be given by words or actions, including inaction. If the consent is obtained fraudulently or from a person of unsound mind then it will be invalid.

  • Censure passed in good faith by the person having lawful authority

It is not defamation of a person having over another authority either conferred by law or arising out of the lawful contract made with another to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. For instance, a judge censuring the conduct of a witness or a banker censuring the cashier of his bank or, an engineer submits a report to the municipality that the contractor had taken away the stock of metal. If the engineer has made the report in good faith, then he will not be liable for defamation.

  • The accusation made in good faith to the authorized person

An accusation made in good faith against a person who has lawful authority over that person is not defamation. It is not necessary for the person making allegations to prove that his allegations were true but he must prove that there were reasonable grounds for him to believe in the allegation. If a person signs a petition to the chairman of Lucknow Development Authority against defective construction of houses, along with several other residents of the locality, he can say to have acted in good faith.

Difference Between Civil Defamation And Criminal Defamation

Sr. No.Defamation as a TortDefamation as a crime
1.It is a civil wrong.It is a criminal offence, which is bailable, non-cognizable and compoundable.
2.It is based on tort law- an area of law which has no statutes to define wrongs and relies completely on case laws to define wrongs.  It has been defined as an offence under Section 499 and the punishment for the same is given in Section 500 of the Indian Penal Code, 1860.
3.It provides redressal to the plaintiff by awarding damages in the form of monetary compensation from the accused.It seeks to punish the offender and send a message to the society not to commit such an offence.
4.Damages are awarded on the basis of probabilities.The offence of defamation has to be established beyond a reasonable doubt.
5.It is generally a slow process to seek relief in India.The plaintiff can move to criminal court and ask the offender to take cognizance of his complaint.
6.A person found guilty can be penalized only by making him pay damages.A person found guilty can be punished with imprisonment up to two years or fine or with both.

Generally, defamation requires that the false statements be communicated without the consent of the allegedly defamed person. Words or pictures are interpreted according to common usage and in the context of publication. Injury only to feelings is not defamation; there must be loss of reputation. The defamed person need not be named but must be ascertainable. A class of persons is considered defamed only if the statements refer to all members of the class—particularly if the class is very small—or if particular members are specially imputed. The ambit of freedom of speech and expression is “sacrosanct” but is not “absolute”. It also said that the right to life under Art. 21 includes the right to reputation of a person and it cannot be violated at the cost of the freedom of speech of another.

Defamation is punishable under criminal law as well as civil law. But, to be criminally punishable, it must be such that it would provoke a breach of the peace or in some other way directly prejudice the public interest

Difference between Fundamental Rights and Directive Principels of State Policy

Fundamental Rights (Part-III):- Fundamental rights are rights without which a human being cannot survive in dignified manner in a civilized society. Fundamental rights are known as “basic rights”. They are also known as negative rights or individual rights as it imposes negative obligations on the state so that it does not encroach on individual liberty. These rights are justifiable in nature so one can go to Courts if one’s right was violated or infringed

Fundamental rights are enshrined in Part III of Indian Constitution from Article 12-35. Initially there are seven fundamental rights but after the abolition of Zamidari Act, Right to Property was repealed. Six Fundamental rights are as follows:

i) Right to equality (Article 14-18)
(ii) Right to freedom (Article 19-22)
(iii) Right to freedom of religion (Article 23-24)
(iv) Right against exploitation (Article 25-28)
(v) Cultural and educational rights (Article 29-30)
(vi) Rights to constitutional remedies (Article 31-32)

Directive Principles (Part-IV):- Part-IV of the constitution deals with “directive principles of state policy”. They are positive rights and impose positive obligations on the state. Directive Principles of State Policy. They are considered as positive rights as they impose positive obligations on the state. They are non-justifiable in nature yet they are important to provide guidelines to Legislature to formulate a policy. DPSP helps the State to attain its Socio-economical goals. DPSP are borrowed from Section -45 of the Irish Constitution of Ireland.

Article 36-51 of the Indian Constitution entails DPSP. Some of them are of current topics of debate in the Parliament.
Some the DPSP are as follows:
(i)Right to work
(ii) Uniform Civil Code
(iii) Right to education
(iv) Maternity benefit.

Difference between Fundamental Rights and Directive Principals of State Policy

The first case in the Supreme Court pertaining to the conflict between Fundamental Rights and Directive Principles was State of Madras v. Champakam Dorairajan (AIR 1951 SC 226) . In this case the Madras Communal Government order which regulated admission to colleges on the basis of an ordinary ratio was challenged by petitioner as violating Articles 15 (1) and 29 (2). The Supreme Court invalidated the order which provided for communal reservation of seats for admission into a State educational institution, even though it was inspired by Article 46. According to the court, since Fundamental Rights are justifiable and enforceable rights, the directive Principles are not. The laws to implement Directive Principles could not take away Fundamental Rights. The Directive Principles should run subsidiary and conform to the Fundamental Rights.

Fundamental Rights Directive Principles of State Policy
Part 3 of the Constitution of India contains the Fundamental Rights guaranteed to the citizens of India. Articles 12-35 of the Constitution of India deal with Fundamental Rights.Directive Principles are written in Part 4 of the Constitution of India. They are given in Articles 36-51 of the Constitution of India.
The basic rights that are guaranteed to Indian citizens by the Constitution of India are known as Fundamental Rights Directive Principles of the Indian constitution are the guidelines to be followed by the Government while framing policies.
Political Democracy is established in India with the help of Fundamental Rights given in the Constitution of India.Economic and Social Democracy is established with the help of the Directive Principles of State Policy
The welfare of each and every citizen is promoted through the Fundamental RightsThe welfare of the entire community is fostered with the help of Directive Principles. 
As per the law, the violation of Fundamental Rights is punishable.Violation of Directive Principles is not a punishable crime unlike violation of Fundamental Rights
Fundamental Rights are justiciable as they can be enforced legally by the courts if there is a violation.Directive Principles are not justiciable as they cannot be enforced by the courts if there is a violation.
If there is a law which is in violation of fundamental rights then the courts can declare it as invalid and unconstitutional.If there is a law in violation of Directive Principles, then the courts do not have the power to declare it as invalid and unconstitutional.
Fundamental Rights are sometimes considered as a kind of restrictions imposed on the State.Directive Principles are directions for the Government in helping it to achieve some particular objectives.
Fundamental rights can be suspended during a national emergency. But, the rights guaranteed under Articles 20 and 21 cannot be suspended.Directive Principles of State Policy can never be suspended under any circumstances.
Fundamental Rights was borrowed from the Constitution of the United States of AmericaDirective Principles of State Policy was borrowed from the Constitution of Ireland which was in turn copied from the Constitution of Spain.
Relation between Fundamental Rights and DPSP: 

Instead of having certain distinctions, Constitution Framers always talked about the coherence between Fundamental Rights and DPSP. Justice P.N. Bhagwati defines inter relation between Fundamental Rights and DPSP as “It is not possible to fit Fundamental Rights and DPSP in two different and strictly defined categories”. We can safely presumed from the above observations given by Constitution Framers that Fundamental Rights and DPSP are interrelated to each other.

In State of Bihar v.Kameshwar Singh 1952 1 SCR 889, the Apex Court relied on Article 39(b) and held that certain Zamidari Abolition Laws had been passed for a Public purpose within the meaning of Article 13(2). Directive Principles were not merely the policy of any particular party but were intended to be principles fixed by the Constitution for directing the State Policy.
In Mohd Hanif Quereshi v. State of Bihar[1950] S.C.R. 869 at 891-892, petitioner argued that he was prevented from doing his occupation which is butchering of animals which include cow also and said that it lead to violation of Article 19(1)(g) of the Constitution. Then Supreme court rely on Article 48 of Indian constitution and held that preventing cows from butchering does lead to the violation of petitioner’s right and observed two important things:

a) the State should take note of the Directive Principles in determining the scope of Fundamental Rights
(b) adopting the doctrine of harmonious construction.
Court should give effect to both the Fundamental Rights and the Directive Principles.

In Unni Krishnan v State of Andhra Pradesh, 1993 AIR 2178, 1993 SCR (1) 594 Supreme court followed the same principle of Keshavanand Bharti case and held that Fundamental Rights and DPSP are supplementary and complementary to each other and provisions of Part III should be read under the light of Preamble and Directive Principles.
In State of Tamil Nadu v. L. Abu Kavur Bai 1984 AIR 326, it was held that DPSP are not enforceable in Courts but it should be attempt of the Court to harmonize both of them and collision should be avoided as far as possible.
In Gujarat Agricultural University v. Robhod Labhu Prachar AIR 2001 SC 70, Supreme Court implied Article 38 which deals to promote social order by welfare of the people and held that Government who is a guardian of people should eliminate inequalities in a status, and make endeavors to give maximum posts even at the first stage of absorption

Principle of harmonious construction:

In Kerala Education Bill, 19575 the Apex court while affirming the primacy of fundamental rights over the directive principles, it held that Court may not entirely ignore these Directive Principles of State Policy laid down in Part IV of the Constitution but should adopt the principle of harmonious construction and should give effect to both as much as possible. The Supreme Court began to assert that there is “no conflict on the whole” between the fundamental rights and the directive principles.

Harmonious construction can be defined as provision of Fundamental rights and DPSP should be read harmoniously or hand in hand. If any conflict occurs then court can refer to any particular law or interpret any law so as to give effect to both as far as possible. In the case of R. Coelho v. state of T.N.9 SC said that it is the responsibility of the government to adopt a middle path between individual liberty (Fundamental Rights) and public good (Directive Principles).
In Minerva Mills v. Union of India AIR 1980 SC 1789 case, Supreme Court observed that Fundamental rights are not end in themselves but are the means to an end. End is specific in Directive Principles. Indian Constitution is based on bedrock of balance between the two. To give absolute primacy to one over another is to disturb the harmony of Constitution. The harmony and balance between them is an essential feature of basic structure of Constitution.

Conclusion

Relation between Fundamental Rights and DPSP is cohesive in nature now and is an essential part of basic Structure of Indian constitution. Both are complementary and supplementary to each other. State should follow the guidelines enumerated in DPSP to protect Fundamental rights else they will have to face adverse consequences in next elections. Thus, the Directive Principles no longer remain merely a moral obligation of the Government. Despite differences, both cannot be seen as exclusive from each other; rather they should complement each other for effective governance of the country.

While Fundamental Right is more objective and has more imposing value, Directive Principles of State Policy in some ways are subjective because it is a kind of moral obligation which the State may or may not implement up to their discretion. Fundamental Rights are aimed at empowering people as it prohibits the State from taking extreme steps which is necessary for a democracy to survive

Assault

Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.

In common law, assault is a tort, an act of the defendant which causes to the plaintiff reasonable apprehension of the infliction of a battery on him by the defendant. When the defendant creates his act by an apprehension in the mind of the plaintiff that he is going to commit battery against the plaintiff, the wrong of assault is completed. The wrong consists of an attempt to do harm rather than the harm being caused thereby. Assault charges must include conduct that is offensive which is offensive or causes another person to the fear of their safety. This clearly means that one can be guilty of assault even if he/she did not physically harm the victim. In the case of R.V.S George, the pointing of a loaded gun to another is an assault. If the pistol is not loaded, then even it may be an assault, if pointed at such a distance that it may cause injury. if a person advances the manner of threatening to use force , then there is assault. This was decided in the case of Stephens V. Myers.

Elements of Assault

If one or more elements have not been satisfied then It can be a defense to an assault charge. Elements of the crime of assault are:

An act or conduct intended to create: To prove a criminal attack, the defendants’ behavior must be motivated to create a situation of fear or danger in the victim’s mind. Accident acts do not include allegations of assault.

A reasonable apprehension: Further, the victim must reasonably believe that the defendant’s conduct will harm or humiliate him. The victim must understand the defendant’s potentially harmful or offensive acts.

Of imminent harm: The victim’s fear must be a direct response to a threat that is imminent. Future threats, such as “I will beat you tomorrow”, will not result in assault charges. In addition, there must be some kind of perceived physical threat to the victim in the loss; For this reason, words by themselves generally do not constitute an attack.

It is believed that the defendant’s actions would cause physical danger or abusive behaviour to the victim. Thus, the pretence of kicking or punching the victim may be an attack, as will attempt to spit on the victim (aggressive behaviour).

All of the above elements must be present and the evidence must be supported with evidence if found guilty for the attack.

It can be difficult to prove whether the defendant actually intended the attack. Similarly, judges often spend a lot of time determining whether a defendant’s actions are considered harmful or abusive. In determining this, they will consider what an average person may perceive as harmful or aggressive.

Distinction between Assault and Battery

S.noAssaultBattery
1.MeaningAssault is defined as the attempt to commit a battery.Battery is defined as the intentional use of force against the other person without a justifiable cause.
2.Crucial ConsiderationThe threat of violence is sufficient to constitute an assault. Physical contact is not required.There must be physical contact.
3.PrincipleConstruct a reasonable fear in the victim’s mind that instant force & threat will be used.The same should apply in the absence of any legal justification.
4.ObjectiveTo make a threat against someone.To harm someone.
5.NatureNot always physicallyPhysical effort is required

Difference between Criminal and Civil Assault

 Civil assaultCriminal assault
MeaningIn civil assault, to sue the respondent for the full extent of his loss, including lost earnings and pain and suffering of the past and future.If the respondent is convicted, he may be imprisoned, and may also have to pay a fine and reinstatement. But the fine would be paid to the government, and restitution would most likely cover only the medical bills, not your non-economic losses such as pain and suffering stemming from the incident.
Procedure   





Punishment
   		In civil assault case, a District Attorney is not involved. The matter is brought by the plaintiff. The plaintiff has more control in the case of civil assault. 

 A win for the District Attorney, results in jail term, a fine, or both.		After an attack, the victim should report to the police. The police will then make an arrest, take action on the alleged attacker and refer the case to the District Attorney. 


 When the plaintiff wins, the defendant will not go to jail, but will have to pay financial compensation.

Defenses

As with other types of criminal charges, there may be some defenses to assault charges. This will depend on each individual case, as well as other factors such as state law. Faults commonly charged with assault charges include:

  1. Self-defense: This could be a defense if the defendant was acting out of self-defense. They should only use the amount or display of force that is appropriate in the situation and in proportion to the force being used against them.
  2. Intoxication: In some cases, intoxication can be a legal defense, especially in cases where intoxication affects a person’s ability to act intentionally.
  3. Coercion: This may be a defense if the defendant was forced to attack under threat of harm (for example, if they are being held at gunpoint and for assault at the behest of someone).
  4. Lack of proof / proof: As stated above, if the elements of proof are not found or supported with the correct evidence, it can serve as a legal defense. Many other types of avoidance may exist depending on the circumstances

Tuberville v Savage – the defendant during an argument put his hand on his sword and said “if it were not assize time I would not take such language from you”.It was held that the defendant committed no assault because his words negated the threat of his conduct.

R v St George – it was held that to point an unloaded gun at another could constitute assault if the person was not aware that the gun was unloaded however if the person was aware that the gun was unloaded there is no assault

conclusion:

Assault and Battery are two forms of Trespass to person. Battery is the intentional application of force to another person. Assault is an action of the defendant which application of force to another person. Assault is an action of the defendant which by the defendant. (Winfield) . The word force has a defined scope in the context of assault and battery ; infliction of light, heat, electricity, gas, odour and similar things which may be applied to such a degree as to cause injury or personal discomfort, amounts to force as required in battery. As Chief justice Holt, rightly said the least touching of another in anger is
battery (Cole V. Turner). Hence spitting a man on his face is assault, but, if any drops fall on him, it is battery.

Societies Registration Act

Society Means

A society is an association of individuals combined that unites together for some communal purpose i.e. for advancement of charitable activities. The Societies can be formed for different objects such as for the promotion of science,literature, or the fine arts for instruction, the diffusion of useful knowledge,the foundation or maintenance of libraries or reading-rooms for general use among the members or open to the public or public museums and galleries of paintings and other works of art, collections of natural history, mechanical and philosophical inventions, instruments, or designs.

Societies Registration Act, 1960 and came into force on 6-6-1961, by replacing the earlier act and was enacted before evolving the method of bifurcation of power between Central and States (Entry 32 of List II of Seventh Schedule) to the Constitution. After enactment of Entry 32 of List II of Seventh Schedule, which provides that unincorporated literary, scientific, religious and other societies and association is a state subject, normally their should be a state laws to regulate the activities of promotion of literature, science, or the fine arts. If in any state, no such law is enacted, then the Central act should be applicable. The Act has been specifically repealed in many States and those States have their own Acts

What are the types of societies?

The Societies can be classified on the basis of the objects they are formed. Some of the types of Societies are as follows:

1. Charitable Societies:The societies formed with the objects, to give donations or to provide financially or otherwise aid educational, benevolent, spiritual, charitable institutions.

2.Educational Society: This type of society are formed with the objects that promote education in any particular area like to open and run, educational and vocational schools or institutions to bring education within the reach of poor & backward children, in the National Capital Territory of Delhi.

3. Resident welfare association: It is a type of society that has objects for promoting the welfare of the residents of the colony for which it is formed.

The society shall consist of seven or more person. The composition of governing body of society shall be as follows: One President One Vice-President. One General Secretary One Secretary One Treasurer Other members shall be executive member.

PROCEDURE FOR REGISTRATION

Any seven or more persons associated for any scientific, literary or charitable purposes can apply for Registration of a society. No limit of maximum number of members is prescribed in the act. For registering a society, following documents needs to be prepared and submitted to the Registrar:

a. Memorandum of Association(MOA): Major Contents are Name of the Society, Working Area, Address of Registered Office, Aims and Object of the Society, Name address, occupation of the Governing body members, desirous persons

b. Rules & Regulation: Major contents are Name of the Association, Admissions of members, Subscription, Cessation of Membership, Rights and privilege of members, Powers and functions of General Body members, Meetings, Election, Power and duties of Office bearers, Quorum of meeting etc. These documents needs to be certified by at least three members of the governing body and should be filled along with the MOA.

a. Proof of Identity & Address of Governing Body Members;

b. Address of the registered office and Consent;

c. NOC of the owner of the address of Registered Office Premises;

d. A fee of Rupees fifty is required to be paid. Name of the Society should not be identical with any existing society, registered under the Societies Registration Act, 1960. The name of the Society also should not be undesirable.

The societies in India are registered as per the provisions of Society Registration Act, 1860. The step wise procedure for registration of society is, Firstly, the name of the society shall be selected. While selecting the name for the society you should keep in mind that the name of the society doesn’t match with the name of already existing registered society.

MEMBERS

In relation to a Society registered under Societies Registration Act, a member is a person who is admitted according to the rules and regulations of society and who pays subscription, or signed the roll or list of members, and who has not resigned from membership. A member can be sued as stranger for arrears in subscription or if he destroys the property of society. Member guilty of offence of stealing, embezzlement or willful destruction of society property can be punished as stranger, i.e. not a member.

SOCIETY IS NOT A BODY CORPORATE

A society incorporated under the Act is not a body corporate. Following provisions of the act reflect the same:

i) As per the act, the assets of a registered society vests on the governing body of the society.

ii) Section 6 of the Act provides that suits by or against the society should be made in the name of the President, Chairman, Principle Secretary or the Governing body, as determined by the rules and regulations of the society, and in the absence of any clause in this regards in the Rules and Regulations in the name of such person as shall be appointed by the Governing Body.

iii) But, Section of 8 of the act makes it amply clear the though suit against society is to be instituted in the name of some persons, they are not personally liable, but the property of the society will be liable.

Important Note

Once, you have decided the name of your propose society, you should start preparing your documents. The documents for the formation of society shall be: A request letter from President of the society. Memorandum of Association* of society which shall contain: Name of the Society Registered Office of the Society Objects of the Society Name, address, occupation and designation of the governing body Name, address, occupation andsignature of the desirous person* Rules and Regulations* of society which shall govern the internal management of the society as same as the Articles of Association for the Company. An affidavit on Rs. 10/- (Rupees Ten) Non- Judicial stamp paper sworn by the President or Secretary of the Society stating that: the Desirous Person are not related with each other by the way of blood or otherwise the name of the society shall be changed if the name of the proposed found attracting the provision of Emblems Act of 1950 and / or identical and resembles closely to any other Society which is already registered under Societies Registration Act of 1860 in the N.C.T. of Delhi and other law of land applicable. Address Proof of the registered office of the society i.e. Sale deed/ Lease Deed/ Utility Bill which shall not be older than 2 months along with No Objection Certificate (NOC)* from the owner of utility bill.

(i) Each and every page of Memorandum of Association and Rules and Regulations of the Society shall be signed by President, Secretary and Treasurer.

(ii) List of Desirous Person attached to MOA shall be notarized.

(iii) The last page of rules and regulation shall be signed by all the person of the governing body.

(iv) NOC shall be furnished on Rs. 10/- (Rupees Ten) Non- Judicial Stamp Paper. 3. Once, you are completed with your documents, the last step is to you have to go and submit the documents with the authority i.e. Sub-Divisional Magistrate for the registration of society.

Conclusion

Purpose for formation of Societies under the Societies Registration Act, : It provides for formation of a Society for any literary, scientific, or charitable purpose, or for any such purpose as is described under Section 20 of the Act. The legal measures include: State’s power of inquiry and investigation; cancellation of registration and consequent dissolution of Societies; supersession of the Governing Body; appointment of administrator; dissolution; and deletion of defunct organisations. State legislation on this subject vary widely. Under Section 25 of the Karnataka Act and Section 32 of the Madhya Pradesh Act, the Registrar on his own motion, and on the application of the majority of the members of the Governing Body or of not less than one-third of the members of the Society, can hold or authorize an enquiry into the constitution, working and financial condition of the Society.

Person

Law is primarily concerned with rights and duties. Exercise of right and performance of a duty presupposes capacity and personality. Persons are the substances of which rights and duties are the attributes. The term Person is derived from the Latin word ‘Persona’ it means those who are recognized by law as being capable of having legal rights and duties. In Greek, it was used for: a mask; the character behind the mask; a character in a play; and a representative in general. A representative of the church was called a person. In Roman law, the term was applied to any human being or to a human being with respect to the jural relations associated with him. A slave was not a person and those lacking reasons were treated as less than persons


Definition:


1) Salmond – “A person is any being whom the law regards as capable of rights and bound by legal duties.
2) Savigny defines the term person as the subject or bearer of a right.
3) According to Gray A person is an entity to which rights and duties may be attributed.
4) According to Austin the term ‘person’ includes physical or natural person including every
being which can be deemed human.
According to Section 11 of the Indian Penal Code, the word person includes any company or association, or body of Persons, whether Incorporated or not.

Kinds of Persons:

1. Natural Persons

A natural person is a human being capable of rights and duties. They are both persons in fact and in law.

The Legal Status of Animals, Slaves, Dead Men, and Unborn person

a. Animals and Inanimate Things

b. Slaves

c. Unborn Natural Persons.

d. Dead Persons or Dead Human Beings

1. Animals and Inanimate Things:

Modern Law does not recognize animals as bearers of rights and duties. Law is made for human beings and all things including animals are for men. No animal can be the owner of property, even through a human trustee. There can be no transfer of property from a person to an animal. Animals are merely the object of transfer and are a kind of property which are owned and possessed by persons. This duty or liability of the master arises due to public policy and public expediency. The liability of the master is strict and not a vicarious liability. The animal could be said to have a legal personality only if the liability of the master is considered vicarious.

Ancient Law – However, in ancient times animals were regarded as having legal rights and being bound by legal duties. Under the ancient Jewish Code ‘if an ox gore (wound with a horn) a man or woman resulting in his or her death, then the ox was to be stoned and its flesh was not to be eaten. There are many examples in ancient Hebrew Codes where cock, bulls, dogs and even the trunk of trees which had fallen on human beings and killed him were tried for homicide.’

There are similar instances in India as well. In number of cases found that, animals were sued in courts in ancient India. There is popular story about the Mughal Emperor Jehangir in which the bullock was presented before the Emperor. However these instances are merely of historical interest and have no relevance in modern law.

Similarly, a bequest for the maintenance of the testator’s favourite black mare a bequest of an annual sum for the maintenance of testator’s horses and hounds for a period of 50 years if nay those animals should so long live a trust for the benefit of a parrot during the life of two trustees and survivor of them have all been held valid

..

2. legal status of a Dead Person:


Dead persons have no legal personality and hence, cannot sue and be sued. Dead men are no longer persons in the eye of the law. The legal personality of a person dies with his person. They do not remain the owners of their property until their successors enter upon their inheritance. When a person dies leaving Will, his property is distributed according to the Will. Law
recognizes and takes account after the death of the person of his desires and interest when alive. There are three things in respect of which the anxieties of living men extend even after their death. Those are his body, his reputation, and his property.
1) His Body:
A living person is interested in the treatment to be given to his own body. A person is interested in a decent funeral and good burial. Criminal law secures a decent burial for all dead persons and the violation of a grave is a criminal offense. It is because to respect the feelings of the relatives of a dead person, not the protection of the dead person is right.
2) His reputation:
Everyone is interested in maintaining a reputation even after death. The reputation of a dead person receives some degree of protection from criminal law. A defamation suit can be filed for the loss of reputation of a dead person. If the publication is an attack on the internet of living persons, as a matter of fact, this right is in reality not that of the dead person but of his living
descendants.
3) His Property/ Estate:
A man is dead but his hand may continue to regulate and determine the enjoyment of the property he owned while he was alive. He can dispose of his property by WILL.

Indian Position – Under section 13 of the Transfer of Property Act, property can be transferred for the benefit of an unborn person by way of trust. Similarly section 114 of the Indian Succession Act, 1925 provides for the creation of prior interest before the unborn person may be made the owner of property – corporeal or incorporeal, but no property will be deemed to be vested in the unborn person unless and until he is born alive. In Hindu Law also a child in the womb of the mother is deemed to be in existence for certain purposes. Under Mitakshara law, such a child has interest in coparcenary property.

Under section 315 of the Indian Penal Code, the infliction of pre natal injury on a child, which is capable of being born alive and which prevents it from being so could amount to an offence of child destruction. Section 416 of Criminal Procedure Code provides that if a woman sentenced to death is found to be pregnant, the High Court shall order the execution of the sentence to be postponed, and may if it thinks fit, commute the sentence to imprisonment for life. It has been held that in a Canadian case that a child could succeed in tort after it was born on account of a deformity which was held to have been caused by a negligent pre natal injury to mother

.

3.Legal Status of Unborn Person


Generally, an unborn person has no legal standing in the eyes of law. However, it has to be distinguished from the one who is living but not yet born, i.e., a child in the womb of its mother-in Utero and an unborn child in the sense of future generations.

Indian Position – As far as a dead man’s body is concerned criminal law secures a decent burial to all dead men. Section 297 of Indian Penal Code also provides punishment for committing crime which amounts to indignity to any human corpse.Under section 13 of the Transfer of Property Act, property can be transferred for the benefit of an unborn person by way of trust. Similarly section 114 of the Indian Succession Act, 1925 provides for the creation of prior interest before the unborn person may be made the owner of property – corporeal or incorporeal, but no property will be deemed to be vested in the unborn person unless and until he is born alive. In Hindu Law also a child in the womb of the mother is deemed to be in existence for certain purposes. Under Mitakshara law, such a child has interest in coparcenary property


A child in the uterus is regarded as a person in law in accordance with the maxim
“Nascitures Pro Ham Nato Habetur i.e. One who is to be born is deemed to have been born”.
Contingent rights: The rights of an unborn person, whether personal or proprietary, are all contingent on his birth as a living human being.
Damages: damages can be claimed for injury to the fetus of a woman if the woman was known to be pregnant.
A posthumous child can claim compensation for the death of his father in a fatal accident.
In Hindu law unborn son acquires an interest in the joint family property from the time of its conception.
In English law a posthumous child inherits and if born alive though it may die moments later it affects the course of succession.
Women convicted cannot be executed if she is pregnant.

2. Legal or Artificial Persons

A legal person is a subject matter, other than a human being, to which the law attributes personality. As distinguished from a legal person, a human being is called a “natural person.” The law assigns legal personality when certain basic conditions have been met. These conditions are:

a. The law requires that there must be some corpus (a body) of the person so created.

b. Legal personality is not attained unless the law recognizes legal personality for the corpus.

c. The law does not assign legal personality separated from the body of persons or a person who administers the legal person.

d. There must be a mind administering the affairs of the legal person.

According to Salmond, ‘legal persons are being, real or imaginary, who for the purpose of legal reasoning is treated in greater or less degree in the same way as human beings.’ They are the person in law, not in fact. Legal persons are termed fictitious, juristic, artificial, or moral. Legal persons may be divided into three types, with reference to different kinds of things, which the law selects for personification.

a) Corporations

b) Institutions

c) Funds or Estate

Corporations: A corporation is a group or series of persons that by legal fiction, is regarded and treated as persons. The individuals who form the corpus of the legal person are termed its members.

Institution: In this class, the object selected for personification is not a group or series of persons, but an institution, for example, a church or university. The law may attribute personality, not to any group of persons connected with the institution, but to the institution itself.

Funds or Estate: in the third class, the corpus is some fund or estate devoted to special use, for example, a charitable fund or a trust estate, or the property of a dead man or of a bankrupt.

Kinds of Corporations: Corporations are of two kinds:

a) Corporation Aggregate

A corporation aggregate is an incorporated group of co-existing persons. A corporation aggregate is a group that has been granted legal personality by the law and it has several members at a time. The first corporations aggregated were companies.

b) Corporation Sole

A corporation sole is an incorporated series of successive persons. A corporation sole is a single person at a time. Corporations sole are founded only when successive holders of some public office are incorporated to constitute a single, permanent and legal person. The corporation sole is created to meet the following needs:

a. Continuity of office

b. Acts to bind successors

c. Ownership of official property distinct from personal property

In the case of corporation sole, the same name is borne by the natural person (for the time being the sole member), and also by the office. This is misleading, as each of them is distinct from the other; under each name are two different persons. One is a human being administering for the time being the duties and affairs of the office.

He is visible to the eye of a layman. The other is a mythical being known to the law, he never dies or retires. The person in flesh and blood is his agent or representative. Agents, Beneficiaries, and Members of Corporation: A corporation being a legal entity only, neither possessing soul nor body, must necessarily act through some agency, some representative in the world of real men. The representatives of a corporation may also be beneficiaries in the case of a corporation established for charitable purposes. The representatives and beneficiaries must not be confounded by its members. Members of the individuals who form the group or series personified by the law, and who so constitute the corpus or body of the legal person thus created.

Difference between a Firm and a corporation

A firm is not a person in the eye of the law, it is nothing else than the sum of its individual members. A corporation is a legal person in the eye of the law; it is separate from its shareholders. The property and the debts of the firm are nothing else than those of its partners. There can be no firm with one member; a company may consist of one member only.

Theories of Juristic Personality

1. Fiction Theory – This theory was put forward by Von Savigny, Salmond, Coke, Blackstone, and Holland etc. According to this theory, the personality of a corporation is different from that of its members. Savigny regarded corporation as an exclusive creation of law having no existence apart from its individual members who form the corporate group and whose acts are attributed to the corporate entity. As a result of this, any change in the membership does not affect the existence of the corporation. It is essential to recognize clearly the element of legal fiction involved in this process. A company is in law something different from its shareholders or members. The property of the company is not in law the property of the shareholders. The company may become insolvent, while its members remain rich. Gray supported this theory by saying that it is only human beings that are capable of thinking, therefore it is by way of fiction that we attribute ‘will’ to non-human beings through human beings who are capable of thinking and assign them legal personality. Wolf said that there are three advantages of this theory. It is analytical, more elastic and it makes easier to disregard juristic personality where it is desirable

2. Concession Theory – This theory is concerned with the Sovereignty of a State. It pre-supposes that corporation as a legal person has great importance because it is recognized by the State or the law. According to this theory, a juristic person is merely a concession or creation of the state. Concession Theory is often regarded an offspring of the Fiction Theory as both the theories assert that the corporation within the state have no legal personality except as is conceded by the State. Exponents of the fiction theory, for example, Savigny, Dicey and Salmond are found to support this theory.

Nonetheless, it is obvious that while the fiction theory is ultimately a philosophical theory that a corporation is merely a name and a thing of the intellect, the concession theory is indifferent to the question of the reality of a corporation in as much as it focuses only on the source (State) from which the legal power of the corporation is derived.

3. Group Personality Theory or Realist Sociological Theory – This theory was propounded by Johannes Althusius and carried forward by Otto Van Gierke. This group of theorists believed that every collective group has a real mind, a real will and a real power of action. A corporation therefore, has a real existence, irrespective of the fact whether it is recognized by the State or not. Gierke believed that the existence of a corporation is real and not based on any fiction. It is a psychological reality and not a physical reality. He further said that law has no power to create an entity but merely has the right to recognize or not to recognize an entity

A corporation from the realist perspective is a social organism while a human is regarded as a physical organism. This theory was favored more by the sociologists rather than by the lawyers. While discussing the realism of the corporate personality, most of the realist jurists claimed that the fiction theory failed to identify the relationship of law with the society in general. The main defect of the fiction theory according to the realist jurists was the ignorance of sociological facts that evolved around the law making process.

Horace Gray, however, denied the existence of collective will.He called it a figment. He said that to get rid of the fiction of an attributed by saying that corporation has a real general will, is to derive out one fiction by another.

4. The Bracket Theory or the Symbolist Theory – This theory was propounded by Rudolph Ritter von Jhering (also Ihering). According to Ihering, the conception of corporate personality is essential and is merely an economic device by which we can simplify the task of coordinating legal relations. Hence, when necessary, it is emphasized that the law should look behind the entity to discover the real state of affairs. This is also similar to the concept of lifting of the corporate veil. This group believed that the juristic personality is only a symbol to facilitate the working of the corporate bodies. Only the members of the corporation are ‘persons’ in real sense of the term and a bracket is put around them to indicate that they are to be treated as one single unit when they form themselves into a corporation.

5. Purpose Theory or the theory of Zweck Vermogen – The advocates of this theory are Ernst Immanuel Bekker and Alois von Brinz. This theory is also quite similar to the fiction theory. It declared that only human beings can be a person and have rights. This theory also said that a juristic person is no person at all but merely a “subjectless” property destined for a particular purpose. There is ownership but no owner. Thus a juristic person is not constructed round agroup of persons but based on an object and purpose. The assumption that only living persons can be the subject-matter of rights and duties would havedeprived imposition of rights and duties on corporations which are non-living entities. It therefore, became necessary to attribute ‘personality’ to corporations for the purpose of being capable of having rights and duties.

6. Hohfeld’s Theory– He said that juristic persons are creations of arbitrary rules of procedure. According to him, human beings alone are capable of having rights and duties and any group towhich the law ascribes juristic personality is merely a procedure for working out the legal rights and jural relations and making them as human beings.

7. Kelsen’s Theory of Legal Personality – He said that there is no difference between legal personality of a company and that of an individual. Personality

Conclusion

The foregoing analysis makes it abundantly clear that incorporation had great importance because it attributes legal personality to non living entities such as companies, institutions etc. which help in determining their rights and duties. Clothed with legal personality, these non living personalities can own, use and dispose of property in their own names. Unincorporated institutions are denied this advantage because their existence is not different from the members.

Ordinarily, only an incorporated body can sue or be sued and an unincorporated body cannot sue or be sued in its own name. This rule was very useful for trade union organizations which were usually not incorporated associations. persons and legal persons for the purposes of law. In law personality implies conferment of rights and duties. Therefore, for the convenient attribution of rights and duties, the conception of juristic personality should be used in its procedural form. There are a number of theories of corporate personality but none could interpret the phenomenon fo juristic personality adequately.

Remedies for breach of contract 

The word „damage‟ is simply sum of money given as compensation for loss or harm of any kind. The term “damages” in general sense, is compensation for causing loss or injury through negligence or a deliberate act, or an estimate of court or award of a sum as a fine for breach of a contract or of a statutory duty. It is the amount of money which the law awards or imposes as pecuniary compensation, recompense, or satisfaction for an injury done or a wrong sustained as a consequence of a breach of a contractual obligation. Damages are a monetary payment awarded for the invasion of a right at common law.

According to Black Law Dictionary: “Money compensation sought or awarded as a remedy for a breach of contract or tortuous acts.”

“Damages generally refer to money claimed by, or ordered to be paid to, a person as compensation for loss or injury.” defined by Justice Greenwood.

             ‘Breach of Contract’ means failure to perform the Contract and ‘Remedy’ which means any of the methods available at law for the enforcement, protection, or recovery of rights or for obtaining redress for their infringement.  When either of the parties breaches the contract, it gives right to the other party to sue him for remedy. A right without remedy is of no avail, therefore, must provide for the remedies available to persons if their rights are violated.

An agreement with the purpose of establishing duty is known as a contract. Therefore, a contract is defined as an arrangement that allows one party to compel another to do something or refrain from doing something. When one or both parties fails or refuses to fulfill their promise or fulfill their obligations under the contract, it is said to have been broken or violated. As a result, an agreement might be regarded to have been honored when one or more parties fail to uphold their end of the bargain by failing to fulfill their promises.

When you enter into a business contract, you and the other party or parties are legally bound to fulfill the obligations therein. When one party fails to do so without a lawful excuse, the contract in question has been breached. 

A breach can occur if the terms of the contract are not met on time, are not in accordance with the spelled-out requirements, or are not met at all. If only one party breaches the contract, the other party is entitled to financial compensation. The breach can be categorized by the legal system as either material or immaterial, which affects how the situation will be remedied by the court system.

What Counts as a Breach of Contract?

If a delivery was contracted for Thursday night and arrived Friday morning, this would be considered an immaterial breach by the court, meaning the late delivery did not cause damages and thus does not result in monetary compensation. However,  if the contract explicitly states that time is of the essence and that the product must arrive by Thursday night, this would be considered a material breach. In this scenario, the party who purchased the product would likely be reimbursed for the cost. 

When a breach of contract suit is brought to court, the judge will ask the plaintiff the following:

  • Whether a contract existed
  • The terms of the contract
  • Whether the contract in question was ever modified
  • Whether the breach in question occurred as claimed
  • If the breach was material to the contract
  • If the party who allegedly breached the contract had a legally admissible reason for doing so
  • The extent of damages caused by the breach, if any

What Happens After a Contract Is Breached?

A breach of contract can cause wasted time and money, as well as frustration for the individuals and small businesses involved. When a contract breach occurs, one or both parties may take legal action to recover financial damages or have the contract terms enforced. Informal resolution is often the best route. If that doesn’t work, you may have to file a lawsuit. Depending on the state, you may be able to file in small claims court.

The remedies for breach of contract under Indian Contract Act, 1872, are suits for:-

1. Damages or compensation:

2. Specific Performance:

3. Injunctions

4. Rescission

5. Quantum meruit:

1. Damages or Compensation:

It is mentioned in section 73 of the contract act that if a party experiences a loss by breach of another party, they have the right to take compensation for the damages from the breached party. The party has the right to sue for damages.

For example, A makes a contract with B to sell his goods at the price of 1000. But at the time of selling, A fails to sell them at the cost of 1000. Here B has the right to sue him for the loss.

Types of Damages

  1. Normal Damages or General Damages

Damages that arise within the normal course of events from the Breach of Contract are referred to as normal damages.

  1. Special Damages

Special damages are those damages that are collectible for the loss arising on account of some special or uncommon circumstances. That is, they undue the natural and probable consequences of the Breach of the Contract.

  1. Exemplary or Vindictive Damages

These damages are awarded against the party who has committed a Breach of the Contract with the thing of gruelling the fallible as a defaulting party and to compensate the aggrieved party. Generally, these damages are awarded just in case of action on loss

  1. Nominal Damages

These damages are in little quantity. They’re awarded merely to acknowledge the correctness of the party to say damages for the Breach of the Contract. Sometimes, the damages aren’t associated with an adequate remedy for Breach of the Contract. In such cases, the Court could, at the suit of the party not in Breach, direct the party in Breach to hold out his promise as per the terms of the Contract. This can be referred to as the precise performance of the Contract.

Example: A united to sell associate previous stamp of the pre-independence amount to 8 for Rs.500. However, afterwards refused to sell it. During this case, B may file a suit against A for the precise performance of the Contract and therefore the Court could order A to sell the stamp to B as united.

Some of the Cases Wherever the Court Could Direct the Execution Area Unit as Follow

  • Once the act is done, compensation in cash, for its non-performance, couldn’t afford adequate relief.
  • Once there exists no normal for crucial the particular damages caused thanks to the non-performance of the Contract.

However, Execution Shall Not Be Granted Within the Following Cases

  • Wherever the damages are associate adequate relief,
  • Wherever the Contract is calculable.
  • Wherever the Contract involves personal nature.
  • Wherever the Courts cannot supervise the effecting of the Contract.

2. Specific Performance:

According to specific performance, the party who has breached the contract has to fulfil the conditions which are mentioned in the contract. It is the discretionary power of the court to insist the breached party perform the duties given under the contract.

For example, A promises B to sell his property. But on the date specified in the contract, he refuses to sell the property. Now, the B can take the decree of specific performance from the court against A to sell his property to B.

3. Injunction:

The term” Injunction” could also be outlined as an associate order of the Court instructing someone to refrain from doing a little act that has been the subject-matter of the Contract. wherever a celebration has secured to not do one thing and he will it, and thereby commits a Breach of Contract, the aggrieved party could ask for the protection of the Court beneath sure circumstances and procure associate injunction.

Example: A narrowed to sing solely at B’s theater and obscurity else for an exact amount. Afterwards, A created a Contract with C to sing at C’s theater and refused to sing at B’s theater. The Court refused to order a selected performance as a result of the Contract was private however granted an associate injunction against A to restrain him from singing anyplace else

An injunction is a court order restraining a person from doing a particular act. Injunctions serve a similar purpose as specific performance. The difference is that with specific performance, the court orders a party to do something. With an injunction, the court often orders a party not to do something. There are two types of Injunctions, as follows: –

Temporary Injunction or Interim Injunctions: –  Temporary or Interim Injunctions are governed by Order 39 of Civil Procedure Code 1908 and are those injunctions that remain in force until a specified period of time, e.g. 15 days, or till the date of the next hearing. Such injunctions can be granted at any stage of the suit. 

Permanent Injunction or Perpetual Injunctions: – Permanent or Perpetual Injunctions as under Sections 38 to 42 of the Specific Relief Act, 1963 are contained in the decree passed by the Court after fully hearing the merits of the case. Such an injunction permanently prohibits the defendant from committing an act which would be contrary to the plaintiff’s rights. 

Mandatory Injunctions: – Mandatory injunctions are granted in cases where it is necessary to force the performance of certain acts which the courts are capable of enforcing, to prevent the non-performance of an obligation. Thus, the Court may at its discretion grant injunctions to prevent such non-performance and compel the performance of necessary acts. This prohibition applies to any breach of liability. It can be permanent or temporary, although temporary-mandatory injunctions are rare.

4. Rescission

A rescission requires that all parties should be brought back to the position they were in before entering into the contract. Thus, a rescinded contract is terminated from the very beginning as if the contract never existed. It actually means that if any benefit received as part of the contract, such as money, must be restored. The basic reasons for Rescission can be stated as follows:-

 Innocent or Fraudulent representation; or

 Mutual mistake; or

 Lack of capacity to contract; or

 An impossibility to perform a contract not contemplated by the parties; or

 Duress; or

 Undue influence

There are many other situations in which a contract can be rescinded. A party can rescind a contract because of a breach by another party, but the breach must be so substantial that it defeats the purpose of the contract. One can also rescind a contract by agreement. If all parties to a contract agree to cancel.

5. Quantum Meruit

Quantum meruit means “earned money”. Sometimes when one part of a Contract is prevented from completing its Contract performance by another, it may require quantum suitability.

So he should be paid a fair wage for part of the Contract he has made. This could be the reward for the work he did or the amount of work he did.

Parties to a Contract area are unit duty-bounded to perform their guarantees. However, things arise wherever one among the parties to a Contract could break the Contract by refusing to perform his promise. This can be what’s referred to as the Breach of Contract. Once one party commits a Breach of Contract, presently the opposite party is entitled to the subsequent Remedies. When one among the party commits a Breach of the Contract, the opposite party becomes entitled to any of the subsequent reliefs:

  • Rescission of the Contract
  • Damages for the loss suffered
  • Suit for the precise performance
  • Suit upon quantum meruit
  • Suit for the injunction.

Suit upon Quantum Meruit

In a literal sense, the expression “Quantum Meruit” means that, “as very much like attained “. In an exceedingly Legal sense, it means that payment is in proportion to the work done. This principle provides for the payment of compensation under certain circumstances, to someone who has offered the products or services to the opposite party under a Contract,  which couldn’t be performed under certain circumstances.

Cases for Claim on Quantum Meruit

Wherever the work, that has been done and accepted under Contract, is afterwards discovered to be void – Here the party has affected a part of the Contract will truly the quantity for the work he has done. And therefore the party that accepts and reaps the profit under Contract, should create compensation to the opposite party.

  • Wherever one party abandons or refuses to perform the entire Contract. Here the compensation for the work done could also be recovered supporting quantum meruit.
  • Wherever one thing is finished with non-intention to try and do gratuitously. In such cases, the opposite person is certain to create the payment if he accepts such services or merchandise, or enjoys their profit.
  • Wherever the Contract is cleanable and therefore the party has enjoyed the advantages of the work done – In such cases, the halfway in default could sue on quantum meruit if the opposite party has enjoyed the advantages of the part performance.

Penalty Clause

Meaning

A penalty clause in a contract obligates the defaulting party to provide some form of compensation to the innocent party in the event of a breach of contract.

The Conventional Penalties Act of 1962 states that penalty provisions are legally binding but that the court has the authority to lower the compensation. In order to assess whether or not the penalty is excessive compared to the damages inflicted, the court must compare the punishment with the real loss or harm caused. You must therefore ensure that the penalty specified in the clause is reasonable. Additionally, you are only permitted to seek one of the two remedies—a penalty or damages—for the same offence.

You must be careful when drafting such phrases and incorporating them into your contracts because a complete body of law has been created to regulate penalty clauses. Because other sections in a contract that deals with breach, damages, liability limitation, and termination are all important and connected, you should avoid looking at penalty clauses individually.

Enforceability

When deciding whether a penalty clause is lawful, the court applies a test to determine if it is a secondary obligation that causes harm to the party who violates the clause that is out of proportion to the innocent party’s legitimate interest in seeing the primary obligation enforced. The test is conducted by asking the following questions:

  • Has the main obligation been breached and triggered a secondary obligation? If so:
    • Does the secondary obligation serve to protect any legitimate business obligation?
    • Is the second obligation unconscionable, extravagant, or exorbitant?

There are a number of things you need to do to avoid unenforceable penalties, including:

  • Consider whether compensation or damages to be paid to the innocent party for a contract breach are a result of a secondary obligation.
  • If there are damages resulting from a secondary obligation:
    • Make sure there is a legitimate interest that is proportionate to the enforcement of the main obligation by the innocent party.
    • Consider whether the penalty clause has an actual pre-estimation of loss. If it does, it will be considered valid without the need to show anything else.
    • Avoid making the penalty extravagant or unconscionable.
  • Other considerations
    • The bargaining power and sophistication of the contracting parties may have an impact on the court’s willingness to declare a penalty clause unenforceable.
    • In a situation where properly advised parties with similar bargaining power are negotiating a contract, the court will initially have a strong presumption that they are in the best position to determine what makes a legitimate provision in the contract.