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BUSINESS LEGISLATION
PAPER CODE: II-204
COURSE OBJECTIVE:
The course is designed to provide anunderstanding of legal processes involved inmanagement of an organization. The main focusis on understanding basic laws affecting theoperation of a Business Enterprise
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Unit-I
The Indian Contract Act: Essentials of a valid contract, void agreements, performance of contracts,
breach of contract and its remedies, Quasi-Contracts
Unit-II
The Sale of Goods Act: Contract of sale of goods, conditions and warranties, transfer of property, rights
of an unpaid seller; the negotiable instruments act: nature and types; negotiation and assignment;
holder-in due course, dishonor and discharge of a negotiable instrument, arbitration
Unit-III
The Companies Act, 1956: Nature and types of companies; formation; memorandum and articles ofassociation; prospectus, shares and share capital, allotment of shares
Unit-IV
Membership; borrowing powers; management and meetings; accounts and audit; compromise
arrangements and reconstruction; prevention of oppression and mismanagement; winding up;
Consumer Protection Act and Cyber Law
Suggested Readings:
1. Kuchhal, M.C. and Deepa Parkash , Business Legislation Management, Vikas Publishing House Pvt. Ltd.2. Khergamwala, J.S., The Negotiable Instrument Acts, N.M. Tripathi, Bombay, 19803. Ramaiyam, A., Guide to the Companies Act, Wadhwa, Nagpur, 19924. Shah, S.M., Business Law for Managers, Sultan Chand, New Delhi, 19985. Tulisian P.C., Busienss Law, TMH, New Delhi
Note:1. One case study be discussed per unit in the class.
SYLLABUS
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Unit-I
The Indian Contract Act: Essentials of a valid contract,
void agreements, performance of contracts, breach ofcontract and its remedies, Quasi-Contracts
INDIAN CONTRACT ACT-1872
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INDIAN CONTRACT ACT, 1872
Indian Contract Act 1872 is the main source of law regulating contracts inIndian law, as subsequently amended.
It determines the circumstances in which promise made by the parties toa contract shall be legally binding on them.
All of us enter into a number of contracts everyday knowingly orunknowingly. Eg. When you purchase milk or newspaper in the morning orgo to movie in the evening, you are entering into a contract.
Each contract creates some right and duties upon the contracting parties.
Indian contract deals with the enforcement of these rights and dutiesupon the parties.
It applies to the whole of India except the state of Jammu and Kashmir.
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DEFINITIONS
Proposal (Offer) - When one person signifies to another hiswillingness to do or to abstain from doing anything, with aview to obtaining the assent of that other to such act orabstinence, he is said to make a proposal.
Acceptance - When the person to whom the proposal oroffer is made signifies his assent thereto, the proposal issaid to be accepted.
Promise - A proposal when accepted becomes a promise.
Consideration - Consideration means something in return(quid pro quo). It can be cash, kind, an act or abstinence. Itcan be past, present or future. However, considerationshould be real and lawful.
Agreement - Every promise and every set of promises,forming the consideration for each other, is an agreement.
Contract - An agreement enforceable by law is a contract.
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COMPONENTS OF CONTRACT
An Agreement
It involves proposal or offer by one party and acceptance of the
same by the other party.
AGREEMENT = OFFER + ACCEPTANCE
Enforceable at law
An agreement to become a contract must give rise to legal
obligations. It must create legal relations and not merely social or
domestic relations.
CONTRACT = AGREEMENT+ENFORCEABILITY AT LAW
Leading Case: BALFOUR V. BALFOUR
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Classification of Contract
Classification as per Validity(valid/voidable/illegal/unforceable)
Void Agreement & Void Contract Classification as per formation
(Express/Implied/Quasi)
Classification as per performance(Executed/Executory)
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Essential elements of a Valid Contract.
1. Proposal & Acceptance.
2. Lawful Consideration.
3. Capacity of parties to contract.
4. Free Consent.5. Agreement should not be expressly declared void.
6. Writing & Registration, if so required by law.
7. Legal Relationship.
8. Certainty.9. Possibility of Performance.
10. Enforceable by law.
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Proposal/ Offer
Proposal/ Offer - When one person signifies
to another his willingness to do or to abstain
from doing anything, with a view to obtaining
the assent of that other to such act or
abstinence, he is said to make a proposal.
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Essentials of Proposal/ Offer
1. Beyond expression of willingness, there must
be something in the nature of a request.
2. Proposer cannot dictate terms.3. An offer must be intended to create &
capable of creating legal relations.
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Communication of proposals.
The communication of a proposal is complete
when it comes to the knowledge of the person
to whom it is made.
Eg - A proposes, by letter, to sell a house to B
at a certain price. The communication of the
proposal is complete when B receives the
letter.
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Acceptance
When one person to whom the proposal is
made signifies his assent thereto, the proposal
is said to be accepted.
Proposal when accepted becomes promise.
The person making the proposal is called the
Promisorand person accepting the proposal
becomes Promisee.
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Essentials of Acceptance
1. Acceptance must be absolute and unqualified.
2. It must be expressed in some usual & reasonablemanner.
3. Mental Acceptance is not sufficient in Law.
4. Acceptance must be communicated to the offerer.
5. Acceptance must be by a certain person.
6. Acceptance must be given within a reasonable time.
7. Acceptance must be given before the offer lapses oris revoked or is withdrawn.
8.Acceptance of proposal is acceptance of all terms.
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Communication of an acceptance
The communication of an acceptance iscomplete, -as against the proposer, when it is put in acourse of transmission to him, so as to be outof the power of the acceptor; as against the
acceptor, when it comes to the, knowledge, ofthe proposer.
Eg : B accepts A's proposal by a letter sent by
post. The communication of the acceptance iscomplete, as against A when the letter isposted; as against B, when the letter isreceived by A.
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Revocation or Lapse of Offer
By Communication of Revocation
Death of insanity of either party before acceptance
By lapse of time (if not accepted within the
prescribed time) Non fulfillment of specific condition
If a counter offer is made
If the acceptance is not according to the prescribedmode and the Offeree is informed
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Revocation of proposals and acceptances
A proposal may be revoked at any time beforethe communication of its acceptance iscomplete as against the proposer, but not
afterwards.
An acceptance may be revoked at any time
before the communication of the acceptanceis complete as against the acceptor, but notafterwards.
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Completion of Communication
Offer or Acceptance
OFFER : when it comes to the
knowledge of the Offeree
ACCEPTANCE : (i) As against
the offeror : when puttedinto course of transmission
(out of acceptors power)
(ii) As against the acceptor :
when it comes to theknowledge of the offeror
Revocation of Offer or
Acceptance
(i) As against the person
who makes it -- whenputted into course of
transmission.
(ii) As against the person
to whom it is made -- whenit comes to his knowledge
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Consideration When A promises to do something A must get
something in return this something is known asconsideration (Affirmative Act / Abstinence / Promise)
It must move at the desire of the promisor
It may move from promisee or any other person
It may be act, abstinence, forbearance or promise
It may be past, present, future
It must be real and not illusory
It must not be something which the promisor is notalready bound to do
It must not be illegal / immoral
Stranger to the Contract
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Capacity of parties to Contract
An agreement becomes a contract if it isentered between the parties who arecompetent to Contract.
Every person is Competent to contract
1. Who is of the age of majority according to the
law.2. Who is of sound mind.
3. Who is not disqualified by any law.
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Free Consent
"Free consent" - Consent is said to be free when it isnot caused by
1) coercion,2) undue influence
3) fraud,4) misrepresentation,5) mistake.
Consent is said to be so caused when it would nothave been given but for the existence of suchcoercion, undue influence, fraud, misrepresentationor mistake.
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Coercion
Coercion is the committing, or threatening to
commit, any act forbidden by the Indian Penal
Code, or the unlawful detaining, or threatening to
detain, any property, to the prejudice of anyperson whatever, with the intention of causing any
person to enter into an agreement.
Eg A, causes B to enter into an agreement by an act
amounting to criminal intimidation under the
Indian Penal Code.
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Undue influence
A contract is said to be induced by "undueinfluence where the relations subsisting betweenthe parties are such that one of the parties isin a position to dominate the will of the otherand uses that position to obtain an unfair
advantage over the other.
Eg - A had given advance money to his son B duringhis minority, upon B's coming of age, A obtains, bymisuse of parental influence, a bond from B for a
greater amount than the sum due inrespect of the advance. Here A employs undueinfluence.
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Fraud
"Fraud" means and includes any of the following actscommitted by a party to a contract, or with hisconnivance, or by his agent, with intent to deceiveanother party thereto of his agent, or to induce him toenter into the contract
1) the suggestion, as a fact, of that which is not true, byone who does not believe it to be true;
2) The active concealment of a fact by one
having knowledge or belief of the fact.3) A promise made without any intention of performing.
4) Any other act fitted to deceive;
5) Any such act or omission as the law specially declares to
be fraudulent. 24
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Misrepresentation
"Misrepresentation" means and includes 1) the positive assertion, in a manner not warranted
by the information of the person making it, of thatwhich is not true, though he believes it to be true.
2) any breach, of duty which, without an intent todeceive, gains an advantage to the personcommitting it, or any one claiming under him, bymisleading another to his prejudice or to theprejudice of any one claiming under him.
3) causing, however innocently, a party to anagreement to make a mistake as to the substanceof the thing which is the subject of the agreement.
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Legality of Object
Sec 23 declares that object & consideration of a
contract should be lawful Consideration & object could be unlawful:-
a) If it is forbidden by law
b) If it is of such a nature that, if permitted, itwould defeat the provisions of any law
c) If it is fraudulent
d) If it involves or implies injury to th
e person orproperty of another
e) If the court regards it as immoral
f) If the agreement opposed to public policy
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Void Agreements
An agreement not enforceable by law is said to be void.
Following are void agreements
* Both parties under mistake of fact (section 20)
* Unlawful object or consideration (section 24)* Agreement without consideration (section 25)
* Agreement in restraint of marriage (section 26)
* Agreement in restraint of trade (section 27)
* Agreement in restraint of legal proceedings (section 28)* Uncertain agreement (section 29)
* Wagering agreement (section 29)
* Agreement to do an impossible Act (section 56)
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Performance of Contract Sec 38 says if a promisor has made an offer to perform as per the
contract and th
e promisee does not accept th
at, th
e promisor isnot responsible for non performance. By whom the contract must be performed;
Promisor himself,Agent,Legal Rep.,Third Person,Joint Promisors.
Devolution of joint liabilities (Sec 42 to 44) (When 2 or morePromisors have made the promise, they are known as the jointpromisors)
All of them must fulfil the promise jointly (42),If not, 43 comes into effect thereby;liability of joint promisors is joint & several, a joint promisor mayclaim contribution, sharing of loss arising from default of one (43para 1,2,3)
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Discharge of Contract
Discharge means termination of a contract.
The contract may be discharged in any of followingways
1. By performance.2. By refusing tender of performance.3. By breach of Contract.4. By impossibility of performance.
5. By agreement or by consent.6. By operation of law. (Death, Insolvency, Merger)
7. Discharge by lapse of time.
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Breach of ContractBreach of contract is non performance of contract.
Remedies for breach of contract to Aggrieved party.
1. Suit for specific performance The court directs party commitingbreach to perform the promise according to the terms of the contract.
2. Suit for injunction An injunction is an order of Court directing personto do or refrain from doing some act which is subject matter ofcontract.
3. Suit for damages, for the loss sustained In case of breach of contract,injured party can claim for damages caused due to breach.
4. Quantum meruit Quantum meruit means as much as earned or
deserved or as much as is merited. A person can claim payment for thework done or goods supplied.
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Contingent contract
"Contingent contract" defined A "contingent contract" is a contract to do or not to do
something, if some event, collateral to such contract, does ordoes not happen.
Essential ch
aracteristics of a contingent Contract
1. There should be existence of a contingency, happening or nonhappening of some event in future.
2. Contingency must be uncertain.
3. The event must be collateral, for example, incidental to the
contract.
Eg A contracts to pay B Rs 10,000 if Bs house is burnt. This is acontingent contract as A will pay B only if his house burns andnot otherwise.
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Quasi Contracts
Quasi Contract is an obligation resembling
that created by a contract.
It is implied Contract.
The essentials of formation of contracts are
absent.
There is no agreement at all.
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Quasi ContractsLaw of Quasi Contract Law of Restitution
As a matter of fact Quasi Contract is not a contract at all.It is rather created by Law.
It is an obligation which the law creates in the absenceof any agreement.
Sec. 68 -72 deals with following kinds of quasi-
contractual obligations;
1. Supply of necessaries
2. Payment by an interested person
3. Obligation to pay for non-gratuitous4. Responsibilities of finder of goods
5. Mistake or Coersion
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Types of Quasi Contracts.
Supply of necessaries
Where a person supplies necessaries to a person incapable ofcontracting, he is entitled to be reimbursed from that property ofsuch incapable person.
Payment by an interested person
A person who is interested in the payment of money which anotheris bound by law to pay is entitled to be reimbursed by other.
Mistake or Coersion
A person to whom money is paid by mistake or under coercion,must repay or return it.
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Types of Quasi Contracts Continued
Obligation to pay for non-gratuitous
When a person lawfully does anything not intending todo so gratuitously & other person enjoys benefit
thereof, the later is bound to make compensation tothe former.
Responsibilities of finder of goods
A person who finds the goods belonging to another issubject to the same liabilities as a bailee of goods. He isentitled to retain the goods until he receives the lawfulcharges or compensation.
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Unit-II
The Sale of Goods Act: Contract of sale of goods,
conditions and warranties, transfer of property,rights of an unpaid seller
SALE OF GOODS ACT - 1930
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Preliminary
Short title, extent and commencement.-
This Act may be called the Sale of Goods Act,
1930. It extends to the whole of India (except the
State of Jammu and Kashmir).
It shall come into force on the 1st day of July,
1930
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Definitions
(1) buyer" means a person who buys or
agrees to buy goods,
(2) "delivery" means voluntary transfer ofpossession from one person to another
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Contract of Sale
A contract whereby a seller transfers or agrees
to transfer the property in goods to buyer fora price
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Essentials of Contract of Sale
Two Parties
Transfer of Property
Goods Price
Includes both Sale & Agreement to sell
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Contract of Sale how made
A contract of sale is made by an offer to buy orsell goods for a price and the acceptance ofsuch offer.
The contract may provide for the immediatedelivery of the goods or immediate payment
of the price or both, or for the delivery orpayment by instalments, or that the deliveryor payment or both shall be postponed.
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Kinds of Goods
Existing Goods (Goods which are physically in existence& sellers ownership & possession at the time ofentering the contract) Specific Goods (Eg. Particular Car bearing a number)
Unascertained Goods (Eg. One bag of sugar)
Future Goods (Eg. A agrees to sell B milk that his cowyields in coming year)
Contingent Goods (Eg. A agrees to sell B specificpainting provided he is able to purchase it from itspresent owner)
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Conditions & Warranties
(1) A stipulation in a contract of sale with reference to goods
which are the subject thereof may be a condition or a warranty.
(2) A condition is a stipulation essential to the main purpose of thecontract, the breach of which gives rise to right to treat the contractas repudiated.
(3) A warranty is a stipulation collateral to the main purpose of thecontract, the breach of which gives rise to a claim for damages butnot to a right to reject the goods and treat the contract as
repudiated.
(4) Whether a stipulation in a contract of sale is condition or awarranty depends in each case on the construction of the contract.
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Condition Defined
A condition is a stipulation essential to themain purpose of the contract, the breach ofwhich gives the aggrieved party a right to
repudiate the contract itself.
In addition, he may maintain an action for
damages for loss suffered, if any, on thefooting that the whole contract is broken andthe seller is guilty of non delivery.
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ILLUSTRATION
A goes to B, a horse dealer and says, I want ahorse which can run at the speed of 30 km per
hour . The horse dealer points out to a
particular horse and says, This horse will suit
you. A buys the horse. Later on A finds the
horse can run only at the speed of 20 km per
hour. There is a breach of condition, A can
repudiate the contract, return the horse to B& get back the price.
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Warranty Defined
A warranty is a stipulation collateral to the
main purpose of the contract, the breach of
which gives the aggrieved party a right to sue
for damages only, and not to avoid the
contract itself.
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ILLUSTRATION
If A says to B, I want a good horse. B showshim a horse and says, This is a good horseand it can run at the speed of 30 km perhour, A buys the horse and later on finds it
can run at the speed of 20 km per hour only,there is a breach of warranty, because thestipulation made by the seller did not formthe very basis of the contract and was only
subsidiary one & hence is only of secondaryimportance.
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Transfer of Property
It means transfer of ownership of the goods.
Rules Regarding Transfer of Property
1. Transfer of property in specific orascertained goods.
2. Transfer of property in unascertained and
future goods.
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Transfer of Property in Specific or ascertained goods
1. When goods are in deliverable state
Eg. A buys bicycle for Rs 2000 on a months credit and
asks the shopkeeper to send it to his house. The
shopkeeper agrees. The bicycle immediately becomesproperty of A.
2. When goods have to be put into a
deliverable state
Eg. Packing the goods, or loading them on rail or ship,
filling them in containers or polishing them to give a
finished shape.
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Transfer of Property in Specific or ascertained goods
3. When the goods have to be measured etc.,to ascertain price Property does not pass unless such thing is done
4. When goods are delivered on approval
- Eg. A delivered a horse to B on the terms of saleor return, within 8 days . The horse died on the
3rd day without any fault on the part of B. Held Awas to bear the loss as the horse was still itsproperty when it perished.
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Transfer of Property in Unascertained and Future
goods
The property in goods does not pass to the
buyer unless and until the goods are
ascertained or conditionally appropriated to
the contract so as to bring them in a
deliverable state, either by seller with assent
of buyer or by buyer with assent of seller.
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Rights of unpaid seller
The seller of the goods is deemed to be anunpaid seller
a) when the whole of the price has not been paid
or tendered b) where a bill of exchange or other negotiable
instrument has been received as a conditional
payment and the same has been dishonored.
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Rights of unpaid seller
An unpaid seller has two fold rights
a) Rights of unpaid seller against the goods and
b) Rights of unpaid seller against the buyer
personally
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Rights of unpaid seller against the goods
Right of lien Lien is the right to retain possession of goods and
refuse to deliver them to the buyer until the pricedue in respect of them is paid or tendered.
Right to Stoppage of goods in transit Stopping further transit of the goods while they
are with a carrier for purpose of transmission tothe buyer, resuming possession and retaining
possession until payment
Right of Resale
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Rights of unpaid seller against the buyer personally
Suit for Price Buyer wrongfully neglects or refuses to pay the
price according to the terms of the contract.
Suit for damages for non acceptance Buyer wrongfully neglects or refuses to accept and
pay for the goods
Suit for special damages and interest
Sue buyer for special damages
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NEGOTIABLE INSTRUMENTS ACT
Unit-II
The negotiable instruments act: nature and
types; negotiation and assignment; holder-in
due course, dishonor and discharge of anegotiable instrument, arbitration
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Definition
The term Negotiable Instrument literally means
a written document transferable by delivery
A negotiable instrument is a piece of paper which
entitles a person to a certain sum of money andwhich is transferable from one to another person
by a delivery or by endorsement and delivery
Promissory Notes
Bills of Exchange
Cheque
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Promissory Note
A promissory note is an instrument in writing(not being a bank note or a currency note)
containing an unconditional undertaking,
signed by the maker, to pay a certain sum ofmoney only to or to the order of certain
person, or to the bearer of the instrument.
I am liable to pay to B Rs 500/-
I have taken from B Rs 2000/- and I am
accountable to him for the same with interest
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Essentials of Promissory Note
It must be in writing It must contain a promise or undertaking to pay.
I promise to pay B Rs 500/-
The promise to pay must be unconditional
I promise to pay B Rs 500/- seven days after mymarriage with C
The maker must be a certain person
The payee must be certain The sum payable must be certain
It must be signed by the maker.
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Specimen of a promissory note
Rs. 5000/- Pune November 25,2008
Threemoths afterthe date, I promiseto pay Mr. X of
Mumbaiorordera sumof Rupees Fifty Thousand forvaluereceived.
To
Mr.Address..
Stamp
Mumbai Signatureof Mr Y
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Bill of Exchange
A bill of exchange is an instrument in writing containingand unconditional order, signed by the maker, directinga certain person to pay a certain sum of money only to,or to the order of, a certain person or to the bearer of
the instrument.
Eg - Mr. X purchases goods from Mr. Y for Rs. 1000/-
Mr. Y buys goods from Mr. S for Rs. 1000/-
Then Mr. Y may order Mr. X to pay Rs. 1000/- Mr. Swhich will be nothing but a bill of exchange.
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Bill of Exchange
Suppose Rajiv has given a loan of Rupees Ten Thousand toSameer, which Sameer has to return. Now, Rajiv also has to give
some money to Tarun. In this case, Rajiv can make a document
directing Sameer to make payment up to Rupees Ten Thousand
to Tarun on demand or after expiry of a specified period. This
document is called a Bill of Exchange, which can be transferred to
some other persons name by Tarun.
Section 5 of the Negotiable Instruments Act, 1881 defines a bill of
exchange as an instrument in writing containing an unconditionalorder, signed by the maker, directing a certain person to pay a
certain sum of money only to or to the order of a certain person,
or to the bearer of the instrument.
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Parties to a Bill of Exchange
There are three parties involved in a bill of exchange. They are
i. The Drawer The person who makes the order for making payment. In the above
specimen, Rajiv is the drawer.
ii. The Drawee The person to whom the order to pay is made.He is generally adebtor of the drawer. It is Sameer in this case.
iii. The Payee The person to whom the payment is to be made. In this case it is
Tarun.
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Features of a bill of exchange
i. A bill must be in writing, duly signed by its drawer,accepted by its drawee and properly
stamped as per Indian Stamp Act.
ii. It must contain an order to pay. Words like please pay
Rs 5,000/- on demand and obligeare not used.
iii. The order must be unconditional.
iv. The order must be to pay money and money alone.
v. The sum payable mentioned must be certain or capableof being made certain.
vi. The parties to a bill must be certain.
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Cheques
Cheque is a very common form of negotiable instrument. If you have asavings bank account or current account in a bank, you can issue a cheque
in your own name or in favour of others, thereby directing the bank to pay
the specified amount to the person named in the cheque.
Therefore, a cheque may be regarded as a bill of exchange; the only
difference is that the bank is always the drawee in case of a cheque.
The Negotiable Instruments Act, 1881 defines a cheque as a bill of
exchange drawn on a specified banker and not expressed to be payable
otherwise than on demand.
Actually, a cheque is an order by the account holder of the bank directinghis banker to pay on demand, the specified amount, to or to the order of
the person named therein or to the bearer.
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Cheque
A cheque is a bill of exchange drawn on aspecified banker and expressed to be payable
otherwise than on demand.
The maker of a bill of exchange or Cheque is
called the Drawer"; the person therebydirected to pay is called the "Drawee".
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Essential characteristics of a Cheque
A cheque is a negotiable instrument.
It is a bill of exchange.
It is always drawn on a specified banker. It is always payable on demand.
A cheque can be bearer, order or crossed
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Negotiation
It is a process of transferring the ownership,
right, title, interest of a person in a negotiable
instrument to another person so as to give a
good title to the transferee and make a
transferee a holder of such instrument.
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71
Continued
Negotiation does not mean a simple transfer.Simple transfer may not necessarily involve thetransfer of property in the negotiable instrumentbut negotiation implies the transfer of propertyor ownership.
Eg -X hands over a cheque to Mr. Y here Mr. Xhas negotiates the instrument.
But if he hands over a cheque to Mr. Y askinghim to keep the same in his safe, the cheque isnot negotiated to Mr. Y, Mr. Y does not becomeits holder but only a bailee.
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72
Essentials of negotiation
There must be transfer of a negotiable
instrument to another person.
As a result of such transfer, the transferee
must become the holder of the instrument.
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Modes of negotiation:
Negotiation by delivery The negotiable
Instrument is transferred by delivery, actual or
constructive. It is physical act of delivering
the instrument or handing over the delivery.
Negotiation by endorsement and delivery
The negotiable Instrument payable to order isnegotiable by the holder by endorsement and
delivery thereof.
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Endorsement
Literal meaning of the term endorsement is
writing on an instrument.
Endorser - The person who signs on the back
or on the face of the instrument or on the
slip is an endorser.
Endorsee - The person to whom the
instrument is endorsed is called theendorsee.
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75
Types of Endorsement
General or blank endorsement - Endorser
signs his name either on the back or face of
the instrument.
Full or special endorsement - It specifies the
name of the person to whom or to whose
order the payment must be made.
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76
Continued
Partial endorsement Endorsement is made
for remaining balance of payment.
Conditional endorsement The liability of the
endorser is limited or negative.
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Holder
The definition given in Section 8 implies that
any person:
Who is entitled in his own name to thepossession of the negotiable instrument.
Has right to receive or recover the amount
from the parties thereto
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Holder In Due Course
The definition of holder in due course inSection 9
means that any person who for the
consideration paid becomes the possessor ofa negotiable instruments, before its maturity,in good faith and without any sufficient reasonto believe that any defect existed in the title of
the person from whom he obtained it.
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Dishonour of negotiable instrument
Negotiable instruments, Promissory notes and
Cheques may be dishonored by non payment
Bills of exchange may be dishonored by non
payment or by non-acceptance as they require
acceptance from drawees.
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Discharge of Instrument
A negotiable instrument is said to be
discharged when it can not be negotiated
further -
When party liable to instrument makes payment
When party primarily liable becomes insolvent
When holder cancels the instrument with the
intention to release the primary party liable.
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THE COMPANIES ACT
Unit-IIIThe Companies Act, 1956: Nature and types of
companies; formation; memorandum and
articles of association; prospectus, shares and
share capital, allotment of shares
Types of Business Entities
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Sole Proprietorship
Partnership
Private Limited Company
Public Limited Company
Charitable Organization
Types of Business Entities
l i hi
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No registration required
Unlimited liability
Used for small business or by Professionals
No Separate Legal Entity
Sole Proprietorship
P hi
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Section 11 of Companies Act, 1956No partnership consistingofmorethan20 persons shall be formed
Partnership
Indian Partnership Act, 1932
Section4 Partnership is therelationbetween persons whohave agreed
to share profits ofbusiness carried onby all orany ofthem acting forall
Unlimited Liability
Registration not Compulsory
C
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Governing Act Companies Act, 1956
Company
Special Features of Company
a) Company is a Separate Legal Entity
b) Itcan sue and be sued inits ownnamec) The liability ofthe shareholders are limited totheextentof
theirshareholdings
d) Company is distinct fromits shareholders
e) Itcanhold property inits ownname
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Types of Companies in IndiaD
ESCRIPTION
S PRIV
ATE COMPANY
PUBLIC COMPA
NY
Definition Which by its article restricts:Numbers of members to 50
Transfer of shares
Invitation of public to subscribe
its debenture, shares etc.
Acceptance of deposits fromperson other than its shareholders
and directors
Which is not * private
Governing Laws Companies Act, 1956 Companies Act, 1956SEBIAct, 1992 and allied
laws.
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Types of Companies in India
DESCRIPTIONS PRIVATE COMPANY PUBLIC COMPANY
Incorporation
Time
22 to 3 weeks 2 to 3 weeks
Minimum Paid up
Capital
INR 1,00,000/- INR 5,00,000/-
MaximumN
o. ofshareholders
50 (Fifty) No limit
MinimumNo. of
Shareholders
2 (Two) 7 (Seven)
Transferability of
Shares
Restricted Freely. If company is listed
then through stock
exchange(s)
MinimumNo. of
Directors
2 3
A ti l f A i ti
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Articles of Association.
The Articles of association are the documents
containing the rules and regulations which
govern the internal management of a
company at every stage of its business that isfrom cradle to grave.
These defines powers and duties of directorsand other officers of the company.
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Contents of Articles
Provisions relating to share capital and
alteration thereof.
Share certificates & warrants.
Rights of share holders.
Meetings of the Company.
Appointment,remuneration,qualifications of
Board ofDirectors.
Dividends.
Indemnity.89
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Articles of Association shall
be printed.
be divided into paragraphs numbered
consecutively.
be signed by each subscriber of the
memorandum of association.
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ALTERATION OF ARTICLES
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ALTERATION OF ARTICLES
ASSOCIATION
It must be bonafide in the interest of the
company and for the benefit of the company
as a whole, it should not constitute a fraud on
minority.It should not operate as a breach of contract
with an outsider.
It cannot require a member to purchase moreshares or increase his liability in any way
except with his consent in writing.
Memorandum of Association
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Memorandum of Association
Memorandum of Association is the documentwhich contains the rules regarding constitution and
activities or objects of the Company.
It is a fundamental agreement of the Company.
Company is governed by Memorandum ofAssociation.
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Contents of memorandum.
The name of the company with "Limited" as thelast word of the name in the case of a public
limited company, and with "Private Limited" asthe last word of the name in the case of a privatelimited company.
The State in which the registered office of thecompany is to be situated.
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Continued
objects of the company.
in the case of companies with objects not
confined to one State, the States to whoseterritories the objects extend.
The memorandum of a company limited byshares or by guarantee shall also state thatthe liability of its members is limited.
94
C ti d
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Continued
The memorandum of a company limited byguarantee shall also state that each memberundertakes to contribute to the assets of the
company in the event of its being wound up.
In the case of a company having a share capital thememorandum shall also state the amount of share
capital with which the company is to be registeredand the division thereof into shares of a fixedamount.
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The memorandum shall (sec
15) be printed,
be divided into paragraphs numbered
consecutively,
be signed by 7(2 in case of private company)
subscriber.
96
l f d
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Alteration of memorandum.
A company shall not alter the conditionscontained in its memorandum except in thecases, for which express provision is made in
this Act.
Provisions relating to the appointment of amanaging director, managing agent,
secretaries and treasurers or manager, may bealtered in the same manner as the articlesof the company.
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Continued
The alteration, with a printed copy of the
memorandum altered, shall be filed by the
Company within three months from the date
of the order with the Registrar who shallregister the same and certify it.
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Company Objects
There can be an objects clause
This sets out the companies aims and
objectives
If it goes beyond it is acting ultra vires
Ashbury v Riche 1875
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Prospectus
DEFINATION any document inviting depositsfrom public or inviting offers from public for
the subscription of shares or debentures of a
company is a prospectus.
h f
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Characteristics of Prospectus
prospectus to be in writing
invitation to public
offer to the public
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THE IMPORTANT CONTENT OF
PROSPECTUS1. General information-1.name & add of
company. 2. name of regional stock
exchange. 3. rating of CRISIL. 4. date ofopening and closing of theissue.5.declaration about refund of the issue.
2. Capital structure authorized, issued,
subscribed and paid-up capital 2) size ofpresent issue 3)paid-up: a)after the presentissue, b)after conversion of debentures
C
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Cont.
3)Term of the present issue : a)terms ofpayment b)rights of the instruments holderc)how to apply d)any special for company
and its shareholders.4)Particulars of the issue: a)object b)project costc)means of financing.
5)Company ,management and project: a)history,
main objects of business b)subsidary of thecompany. C)promoters d)collaborationagreement
C i
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Conti
Particular in regarding to the company:a) name of companyb)year of the issue
c)type of issued)amount of issuee)rate of dividend paid
management perception of risk factor
:a)sensitivity to foreign exchange ratefluctuation b)difficulty in availability of rawmaterial.
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MIS-STATEMENT OF THE PROSPECTUS:[SEC.65]
-Mis-statement includes:-1.Untrue statement
2.Statement which produce wrong impression
3.Statement which are misleading
4.Statement which produced wrong impression.
5.omission of facts.
-Mis-leading prospectus:-
The prospectus which contains mis-statement/mis-leading statement
-Who is liable for mis-statement in
prospectus:-[sec.62]
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LIABILITIES:- Civil & Criminal
CIVIL LIABILITES:-1.Compensation.
2.Damages for Fraud.3.Recision of Contract.4.Penalty for issuing the prospectus without
delivering for registration.
Share capital
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Share capital
Definition (Sect.2(46))
Share means share in the share capital of the company
A Share is the interest of shareholder in the company
measured by a sum of money for the purpose, of liability in the firstplace , and of interest is second
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Kinds of share:-
Before the company act, 1956 was passed a company could issue three types of share ;1) Equity share
2) Preference share
3) Deferred share
But under the company act ,1956 a company can issue only two type of share namely;
1) Equity share
2) Preference shareSection 86 as amended by the companies act 2000, provide that the new issues of share
capital of a company limited by shares shall be of two kinds namely
1)Equity share
This type of share can be further divided into,
1 . With voting rights; or
2 . With differential right as to dividend , voting or other wise
2)Preference share
Preference Share :-
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Characteristic of preference share:-
Preference share have two characteristic :
1) They have preferential rights to be paid dividend during the life time of company and
2) They have preferential right to the return of capital when the company goes into liquidation.
Types of preference share:-
1)Cumulative or non-cumulative:-
With regard to the payment of dividends, preference share may be cumulative or non-cumulative. A cumulativepreference share confers a right on its holder to claim fixed dividend of the past and the current yearout of future profits.the fixed dividend keeps on accumulating until it is fully paid.
2)Participating or non-Participating :- Participating preference shares are those shares which are entitled to afixed preferential dividend and , in addition carry a right to participate in the surplus profits along withequity shareholder.
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2)Participating or non-Participating :- Participating preference shares are those shares which are entitled to a fixed
preferential dividend and , in addition carry a right to participate in the surplus profits along with equity
shareholder.
3)Redeemable or irredeemable:-
Redeemable preference share are issued by a public limited company, to be redeemed either at a fixed
date or after a certain period of item during the life time of the company . Condition for issue of such shares are
laid down in section 80 of the act.
4)Convertible or non-convertible :-
convertible preference shares are those which would be convertible into equity shares after a specified period.
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Ordinary or Equity shares :-All shares other than preference share will be ordinary shares . The holder of these shares are entitled to
dividend from the net profit of the company after the fixed dividend on preference share has been
paid up . If after paying the divident on preference share, no profit remain, equity shareholder willreceive no dividend.
Kinds of equity shares :-section 86,as amended by the companies (amendment) Act 2000, empowers companies to issue the
following types of equity shares:
1) Equity shares with voting right :-
The holder of such equity shares will have the right to vote on every resolution placed before the
company . His voting right on a poll will be a proportion to his share of the paid-up equity capital of the
company.
[Sec.87(1)]
2) Equity shares with differential rights:-
The holder of such equity shares have differential rights as to dividend ,voting or otherwise in
accordance with such rules and subject to such condition as may be prescribed by the central
government.
Who Can Become a Member of a
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Company?
Any individual who can enter into a contract
under the Indian Contract Act, 1872 may be
eligible to become a member of a company.
However, this is subject to the provisionsunder the Memorandum and the Articles of
the company
Who Can Become a Member of a
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Company? The Articles may restrict particular persons or organizations from becoming a
member of a company. A person can become a member of a company provided hefulfills certain conditions:
Minor: A minor is not qualified to become a member of a company, because acontract with a minor is not valid. However, a minor can become a member if awritten agreement is signed by his legal guardian.
Insolvent: A bankrupt person may be considered a member of a company and isentitled to vote, as long as his name is there on the register of members.
Partnership Firm: A partnership firm may own shares in a business. The shares areallotted on the names of partners. As per Section 25 of the Companies Act, 1956, afirm is allowed to become a member of a company that is licensed under Sec. 25.
Foreigner: A foreigner is eligible to become a member of a company. His rights as amember would be suspended if at any point of time he becomes an alien foe.
Company: A company may become a member of any other company if granted byits Articles. However, under Sec. 77 (1), of the Companies Act, 1956, a companycannot become its own member. It is considered illegal if it buys its own shares
BORROWING POWERS
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BORROWING POWERS
A company is empowered to borrow money, if- The object clause permits the company to borrow
money; or
It is a trading company (since a trading company has
an implied power to borrow money.)
A public company having share capital is requiredto obtain a certificate of commencement ofbusiness.
Until such certificate is received, it shall not carryon any business or borrow money.
Borrowing of money
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Borrowing of money
Such power shall be exercised by passing aresolution in a BM
Such power may be delegated by the Board,
provided The resolution delegating the power to borrow
money is passed at a BM only
The resolution of the Board shall specify total
amount that may be borrowed
Meaning of Borrowings ultra vires
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g g
the company
Any borrowing by a non-trading company shall be ultravires the company if the power to borrow money is notexpressly stated in the memorandum
Any borrowings by any company shall be ultra vires thecompany if the borrowings are made for a purposewhich is outside the object clause of memorandum
The borrowing by the company must be within thelimits, if any, specified in the articles
Accounts and Audit
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Accounts and Audit
Every company must maintain proper books of accounts of itsaffairs. The following transactions must be entered in the books ofaccounts of the company which must be kept at its registered office:-
all sums of money received and expended by the company and thematters in respect of which the respect of which the receipt andexpenditure took place;
all sales and purchases of goods by the company; and
the assets and liabilities of the company.
in the case of a company engaged in production, processing,manufacturing or mining activities, such particulars relating to
utilisation of material or other items of cost as may be prescribedrelating to certain class of companies as the Central Governmentmay require.
Preparation of Balance Sheet and
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Profit and Loss Account
The company has to prepare its balance sheet
and profit & loss account from the books of
account maintained by it. Every Balance Sheet
of a company must give a true and fair view ofthe state of affairs of the company as at the
end of the financial year and must be in the
prescribed format.
Auditors of Companies
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It is the duty of the auditor conduct the audit of the books of accounts of the company and to make
his report to the members of the company on the accounts examined by him, and on every balancesheet, every profit and loss account and on every other document declared by the Act to be part ofor annexed to the balance-sheet or profit and loss account and laid before the company in generalmeeting during his tenure of office. The auditors report, besides other things necessary in anyparticular case, must expressly state-
whether, in his opinion and to the best of his information and according to explanation given tohim, the accounts give the information required by the Act and in the manner as required;
whether the balance-sheet gives a true and fair view of the company's affairs as at the end of thefinancial year and the profit and loss account gives a true and fair view of the profit or loss for the
financial year; whether he has obtained all the information and explanations required by him for the purposes of
his audit;
whether in his opinion, the profit & loss account and balance sheet refered to in his report complywith the accounting standards recommended by the Institute of Chartered Accountants of India;
whether, in his opinion, proper books of account as required by law have been kept by thecompany, and proper returns for the purposes of his audit have been received from the branchesnot visited by him;
whether the company's balance sheet and profit and loss account dealt with by the report are inagreement with the books of account and returns.
In case any of the above matters is answered in the negative or with a qualification, the auditor'sreport must state the reason for the same. Where the auditor is unable to express any opinion inanswer to a particular question, his report shall indicate such fact together with the reasons why itis not possible for him to give an answer to such question.
Compromise Arrangements and
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Reconstruction
Compromise Compromise means anamicable agreement between parties to acontroversy to settle their differences by
making mutual concessions. In a compromise,the parties agree to settle it betweenthemselves by a give and take arrangement.For the purpose of a compromise, it has been
held that it is but essential that each partythereto should empowered to make thenecessary concessions.
Compromise Arrangements and
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Reconstruction
Arrangements Includes a reorganization of
the share capital of the company by the
consolidation of shares of different classes or
by division of shares into shares of differentclasses or by both these methods.
Compromise Arrangements and
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Reconstruction
Reconstruction A Reconstruction is
commonly said to have taken place when a
company resolves to wind up its business and
it is proposed to form a new company, withonly old shareholders as its members to take
over its undertaking, the rights of
shareholders in the old company.
Prevention of oppression and
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mismanagement
Application to the Company Law Board for relief in cases of oppressionAny members of a company who complain that the affairs of thecompany are being conducted in a manner prejudical to public interestor in a manner oppressive to any member or members may apply to theCompany Law Board for an order for relief, provided suchmembers havea right so to apply as given below.
If, on any application, the Company Law Board is of the opinion :- that the company's affairs are being conducted in a manner oppressive
to any member or members; and
that to wind up the company would unfairly prejudice suchmember ormembers and would be a very serious step, but that otherwise the factswould justify the making of a winding-up order on the ground that it was
just and equitable that the company should be would up;
the Company Law Board may, with a view to bringing to an end thematters complained of, make such order as it thinks fit.
Prevention of oppression and
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mismanagement
Application to the Company Law Board for relief in cases of oppression
Any members of a company who complain that the affairs of thecompany are being conducted in a manner prejudical to public interestor in a manner oppressive to any member or members may apply to theCompany Law Board for an order for relief, provided suchmembers have
a right so to apply as given below. If, on any application, the Company Law Board is of the opinion :-
that the company's affairs are being conducted in a manner oppressiveto any member or members; and
that to wind up the company would unfairly prejudice suchmember ormembers and would be a very serious step, but that otherwise the facts
would justify th
e making of a winding-up order on th
e ground th
at it wasjust and equitable that the company should be would up;
the Company Law Board may, with a view to bringing to an end thematters complained of, make such order as it thinks fit.
Prevention of oppression and
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mismanagement
Application to Court for relief in cases of mismanagement
Any members of a company who complain :-
that the affairs of the company are being conducted in a manner prejudicial topublic interest or in a manner prejudicial to the interests of the company; or
that a material change has taken place in the management or control of thecompany, whether by an alteration in its Board of directors, or manager or in theownership of the company's shares, or if it has no share capital, in itsmembership, or in any other manner whatsoever, and that by reason of suchchange, it is likely that the affairs of the company will be conducted in a mannerprejudicial to public interest or in a manner prejudicial to the interests of thecompany;
may apply to the Company Law Board for an order of relief provided suchmembers have a right so to apply as given below.
If, on any such application, the Company Law Board is of opinion that the affairsof the company are being conducted as aforesaid or that by reason of anymaterial change as aforesaid in the management or control of the company, it islikely that the affairs of the company will be conducted as aforesaid, the courtmay, with a view to bringing to an end or preventing the matters complained ofor apprehended, make such order as it thinks fit.
Winding up
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Winding up
Winding up of company is a legal procedure to dissolvethe company and put an end to its life
The term winding up is defined as, the process bywhich the life of a company is ended and its property isadministered for the benefit of its members and
creditors. During the process of winding up, the assets of the
company are sold and all the debts of the company arepaid off.
An administrator, called the liquidator, is appointed totake control of the winding up process of the company.If any surplus is left, the liquidator would distribute itamong the owners of the company in accordance totheir rights.
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CONSUMER PROTECTION ACT,
1986
WHO IS A CONSUMER?
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WHO IS A CONSUMER?
Two kinds of consumer under the Act
Consumer of goods
buys or agrees to buy goods
any user of such goods
Consumer of services
hires or avails any services
any beneficiary of such service
CONSUMERS NEED PROTECTION AGAINST
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CONSUMERS NEED PROTECTION AGAINST
Unfair trade practice
Restrictive trade practice
Defects
Deficiencies
CONSUMERS NEED PROTECTION
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UNFAIR TRADE PRACTICE
Adopting unfair methods or deception to promote sale, use or
supply of goods or services e.g.
Misleading public about price (e.g. bargain price when it is not so).Misleading public about price (e.g. bargain price when it is not so).
Charging above MRP printed.Charging above MRP printed.
Misleading public about anothers goods or services.Misleading public about anothers goods or services.
Falsely claiming a sponsorship, approval or affiliation.Falsely claiming a sponsorship, approval or affiliation.
Offering misleading warranty or guarantee.Offering misleading warranty or guarantee.
CONSUMERS NEED PROTECTIONAGAINST
CONSUMERS NEED PROTECTION AGAINST
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CONSUMERS NEED PROTECTION AGAINST
RESTRICTIVE TRADE PRACTICE
y Price fixing or output restraint re: delivery/flow of supplies to
impose unjustified costs/restrictions on consumers.
y Collusive tendering; market fixing territorially among competing
suppliers, depriving consumers of free choice, fair competition.
y Supplying only to particular distributors or on condition of sale
only within a territory.
y Delaying in supplying goods/services leading to rise in price.
y Requiring a consumer to buy/hire any goods or services as a pre-
condition for buying/hiring other goods or services.
CONSUMER'S RIGHTS
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CONSUMER S RIGHTS
yy RightRight toto safetysafety againstagainst hazardoushazardous goodsgoods andand servicesservices
yy RightRight toto bebe informedinformed aboutabout quality,quality, quantity,quantity, purity,purity,
standard,standard, pricepriceyy RightRight toto choosechoose fromfrom aa varietyvariety atat competitivecompetitive pricesprices
yy RightRight toto bebe heardheard
yy
RightRight toto seekseek redressalredressalyy RightRight toto consumerconsumer educationeducation
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FORUM & JURISDICTION
Consumer Disputes Redressal Forums (District Forum)
Claims less than or equal Rs.20 lacs.
Consumer Disputes Redressal Commissions (State
Commission)
Claim more than Rs.20 lacs & less than Rs.1 crore & appeals.
National Consumer Disputes Redressal Commission (National
Commission)
Claim equal to Rs.1 crore & appeals
ESSENTIAL INFORMATION IN THEAPPLICATION
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APPLICATION
Name and full address of complainant
Name and full address of opposite party
Description of goods and services
Quality and quantity
Price
Date & proof of purchase
Nature of deception
Type of redressal prayed for
BENEFITS & RELIEFS
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BENEFITS & RELIEFS
BenefitBenefit
Disposal within 90 daysDisposal within 90 days
No adjournment shall ordinarily be grantedNo adjournment shall ordinarily be granted -- Speedy trial
Relief Removal of defects in goods or deficiency in services.
Replacement of defective goods.
Refund against defective goods or deficient services.
Compensation.
Prohibition on sale of hazardous goods.
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CYBER LAWS
CONTENTS
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CONTENTS
INTRODUCTION
NEED FOR CYBER LAWS
CYBER LAWS IN INDIA
CYBER CRIMES OFFENCES AND LAWS IN CYBER SPACE
INTRODUCTION
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INTRODUCTION
GROWTH OF
CYBER SPACE
ONSET OF
INTERNET
CYBER LAW ORLAW OF INTERNET
NEED FOR CYBER LAWS
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NEED FOR CYBER LAWS
TACKLING CYBER
CRIMES
INTELLECTUAL
PROPERTY RIGHTS
AND COPYRIGHTS
PROTECTION ACT
IT ACT PROVISIONS
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IT ACT PROVISIONS
email would now be a valid and legal form ofcommunication in our country that can be dulyproduced and approved in a court of law.
Companies sh
all now be able to carry out electroniccommerce using the legal infrastructure provided bythe Act.
Digital signatures have been given legal validity and
sanction in the Act.
IT ACT PROVISIONS
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statutory remedy in case if anyone breaks
into companies computer systems or
network and causes damages or copies data
CYBER CRIMES
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C C S
CYBER CRIMES AGAINST
PERSONS
CYBER CRIMES AGAINSTPROPERTY
CYBER CRIMES AGAINST
GOVERNMENT
OFFENCES AND LAWS IN CYBER SPACE
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TAMPERINGWITH
COMPUTER DOCUMENTS
HACKINGWITH COMPUTER
SYSTEM PUBLISHING OBSCENE
MATERIAL ON INTERNET
BREACHING OF
CONFIDENTIALITY ANDPRIVACY
Appeals / Cyber Appellate Tribunal
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pp / y pp
Appeal to Cyber Appellate Tribunal
Any aggrieved person
Powers of Cyber Appellate Tribunal
Appeal to High Court
Unit-I
SYLLABUS
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The Indian Contract Act: Essentials of a valid contract, void agreements, performance of contracts,
breach of contract and its remedies, Quasi-Contracts
Unit-II
The Sale of Goods Act: Contract of sale of goods, conditions and warranties, transfer of property, rights
of an unpaid seller; the negotiable instruments act: nature and types; negotiation and assignment;
holder-in due course, dishonor and discharge of a negotiable instrument, arbitration
Unit-III
The Companies Act, 1956: Nature and types of companies; formation; memorandum and articles of
association; prospectus, shares and share capital, allotment of shares
Unit-IV
Membership; borrowing powers; management and meetings; accounts and audit; compromise
arrangements and reconstruction; prevention of oppression and mismanagement; winding up;
Consumer Protection Act and Cyber Law
Suggested Readings:
1. Kuchhal, M.C. and Deepa Parkash , Business Legislation Management, Vikas Publishing House Pvt. Ltd.2. Khergamwala, J.S., The Negotiable Instrument Acts, N.M. Tripathi, Bombay, 19803. Ramaiyam, A., Guide to the Companies Act, Wadhwa, Nagpur, 19924. Shah, S.M., Business Law for Managers, Sultan Chand, New Delhi, 19985. Tulisian P.C., Busienss Law, TMH, New Delhi
Note:1. One case study be discussed per unit in the class.
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THANK YOU