One That Is Inherent in the Transaction (I.E.,Ct)

MB0051

Ans:-Discharge means termination of ct b/w parties. Ct ceases to operate, i.e., when the rights and obligations under ct ends. u/s 73-75 of ICA,ct may be discharged as:

i)Performance(P) or tender :Here parties have done whatever was contemplated under ct. Thus, where A ct to sell his car to B as soon as car is delivered to B and B pays ,ct comes to an end by P . Tender or offer of P has the same effect as P. If a promisor(pmsr) tenders P of his promise but the other party refuses to accept it, pmsr stands discharged of his obligations.

ii)Mutual consent :U/s 62 of ICA, here parties to ct agree to substitute a new ct for the old or rescind or alter terms.It may be terminated by mutual consent in any of 6 ways, viz., novation, rescission, alteration and remission, waiver and merger. Novation means substitution of a new ct for the original one.

iii) Impossibility of P:Ct may be discharged due to 2 types of impossibility:

 One that is inherent in the transaction (i.e.,ct)

 One that may emerge later by the change of certain circumstances material to ct.

iv) Discharge due to law :It amy be in 3 ways:

(i) By death of pmsr in cases involving personal skill or ability

(ii) By insolvency, where an order of discharge is passed by an insolvency court and the insolvent stands discharged of all debts incurred previous to his adjudication.

(iii) By merger

2Q:Write below about Power of Attorney(POA)a)Meaning

b)Types c)Clause related to its registration.

Ans:-a) POA is defined u/s 2(21 of Stamp Act. It is any instrument or a deed not chargeable with a fee under law relating to court fees for time being in force,.It empowers “a specified person to act for & in name of person executing it”.Its act came in 1882

.It deals with subject but does not define it. It empowers person to act for & in name of person executing it. Person executing

deed is principal or donor & one in whose favour it is executed is agent, or

power agent or POA agent.

b)POA may be as below

i) special:If it confers power by one to another relates to one single transaction,

ii)General: If it relates to many transactions .

c)Registration(Regn): Generally, its regn is not needed. But, if it authorises donee to recover rent of an immovable property , it would needs it.

Further, u/s 32 (c) of regn Act, 1908, needs that where a document is presented for regn by agent of a person entitled to present it for regn, such agent must be duly

authorised by POA authenticated u/s 33.

Such POA is to be executed before & authenticated by a registrar or sub-registrar.

Unregistered POA executed in a foreign country before a public notary can be used by the agent for presentation of document for regn but, executed before a public notary in India will not enable agent to present any document for regn .

POA is needed to be embossed on non-judicial stamp paper.Amount of stamp duty varies with different types of powers as in Stamp Act & varies in different states of India. U/s 4 of POA , original deed can be deposited in High Court in whose jurisdiction principal resides. Moreover, a certified copy of deed can be got from High Court. Such certified copies are equal to originals & are binding on all.

Q3 Write Procedure for registration(regn) of firm?

Ans:- Regn of firm u/s 58-59. Procedure for Regn is u/s 58 . We may register firm at any time by post, or delivering to Regr of Firms of area where our firm is situated or proposed to be situated. We fill prescribed form with prescribed fee,Firm’s name, Place or principal place of business, Names of any other places where the firm carries on business,Date when each pa joined firm, Names in full & addresses of pa,& Duration of firm.All pa must sign MOA,. When Regr is satisfied,he records an entry of MOA in a register of Firms u/s 59.He then issues a Certificate of Regn. Regn is effective from date when we file MOA & he makes entries in Register of Firms.Regn of firms is optional.IPA does not provide for compulsory Regn of firms. It is optional and there is no penalty for non- Regn . However, u/s 69 has certain disabilities that an unregistered firm suffers from.

Ct of Guarantee(COG) are common & are used due to secure loans. COG is made for creditor(crdtr) ’s security. COG are sometimes called performance(P) bonds. E.g, in construction project, builder may have to find Surety(S) for his promise to complete construction . Moreover, employers(er)often demand a type of P- bond known as a fidelity bond from employee(e) who handle cash, etc., for the good conduct of the latter. If e misappropriates, then the S will have to reimburse er .• Bail bonds, used in criminal law, are a form of COG .These ensures that a criminal defendant will appear for trial. A prisoner is released on bail, pending his trial. If he does not appear in court as desired, then the bond is forfeited.In business,COG are used for securing loans.In COGwe ‘ve perform promise or discharge liab of 3rd person in case of his default”. The person who gives G is called S, person for whom G is given is called Principal Debtor(PD) & person to whom G is given is called crdtr . COG may be either in oral or in writing. So COG has principal ct b/w PD &crdtr,& secondary ct b/w crdtr & S . COG is a tri-partite ct among crdtr , PD & S . In COG,there is too Ct b/w PD & S by which former indemnifies the S by implicatione.g When A requests B to lend to C &G that C will repay within the agreed time and that on C’s failing to do so, A will himself pay to B, there is COG .COS is not collateral to ct of PD , but is an independent ct. There must be a distinct promise on part of the S for liab towards the debt. It is not necessary that principal ct b/w debtor & crdtr must exist at time COG is made. Similarly, under certain circumstances, a S may be called upon to pay though PD is not liable at all. Moreover, where a person gives G on ct that crdtr shall not act upon it until another person has joined in it as co- S , G is not valid if that other person does not join u/s 144.Uberrimae fidei means utmost good faith). S -ship rel is one of trust validity of ct depends on the good faith of crdtr . Crdtr must disclose all facts which, under circumstances, S would expect not to exist. Hence, where G is given for good conduct of e,er’s failure to inform S of any BOC on the part of ewill discharge S . Similarly, where X gives G existing future liab of A to B up to a certain limit that has already been exceeded, COG can be avoided on ground of concealment of a material fact. But it is not crdtr ’s duty to inform S about all his previous dealings with dtr.

5Q: Write Procedure for filing a complaint &admission of complaint

A:a)Filing: There is no fee for filing a complaint before any of the aforesaid bodies. Complainants or their authorised agent can present complaint by post to appropriate Forum/ Commission. It must be addressed to President of Forum/Commission.It must have, Name, description &address of complainant & opposite party or parties, as case may be , Facts relating to complaint & when & where it arose,documents, if any, in support of allegations.

b) Admission of complaint is u/s 13

: District Forum(DF) must send a copy of admitted complaint to opposite party mentioned in complaint within 21 days of admission. He must provide his version of the case within 30 days or may be granted a further extension of 15 days, at DF discretion. If opposite party disputes allegations or fails to take any action, DF can settle disputes as specified in Act.

Procedure in goods where defect needs testing: DF must get a sample of goods from complainant & must take steps to seal & authenticate sample & send it to appropriate laboratory test .It must be carried out to ascertain if goods suffer from defects alleged by complainant & results of such tests must be provided within 45 days. This period may be extended by DF if needed. Complainant is obliged to bear needed charges towards testing & needs to deposit these fees to DF. DF , in turn, remits amount deposited to lab which tests. Upon getting report, DF then forwards a copy of same, along with its remarks, to Opposite party seeking clarification. Any disputes w.r.t lab’s findings must be countered by written objections from concerned party. DF then provides reasonable opportunity for both complainant & opposite party to be heard.

6Q:Write below about meeting(mtg)

Ans:-A)Below are 5 types of mtg of shareholders:

i)Statutory mtg u/s 165: It is needed to be held only by a public co. having share capital. A pvt or public co.registered without share capital is under no obligation to hold it. It must be held within a period of not <1 month & not > 6 months from date on which co. is entitled to commence business. At least 21 days before day of it, its a notice is to be sent to every member

stating it to be a Statutory.

ii)AGM u/s 166-168: Every co. (public or private,) with a share capital or not, limited or unlimited must hold it.It must be held in each calendar year & not > 15 months shall elapse b/w 2 mtg. But,1st AGM may be held within 18 months from date of its incorporation &if such GM is held within that period, it need not hold it in year of its incorporation or in following year. Gap b/w two such mtg may be extended by 3 months by taking permission of Registrar, who may so allow for any special reason. It must be not be held on a public holiday

iii)Extraordinary Meeting (EGM)u/s 169:

As per clause 47 of Table A (Schedule – I) all GM other than AGMs shall be called EGMs.Such is convened for transacting some special or urgent business that may arise in b/w 2 AGMs, e.g change in the objects or shift of registered office or alteration of capital. All business transacted here is called special business. So, every item on agenda must have ‘Explanatory Statement’. Tribunal.BOD may call GM of the members at any time by giving not < 21 days notice. Shorter notice may, however, be held valid if consent is accorded thereto by members of co. holding 95 % or more of voting rights u/s 171.

iv)Class mtg:Co. has 2 types of shares – ES & PS.It is held for these different classes of shareholders, as and when their rights are affected.