cee-bl-module no.1 - pgp-15 & fpm-05 of iim-k (copyright 2011, sebastian tharakan, the business...

“Every great and commanding movement in the annals of the world is the triumph of enthusiasm . Nothing great was ever achieved without it.”

– Ralph Waldo Emerson

Sebastian Tharakan, The Businesslawlecturer

Dear students of Batches PGP 15 & FPM 05 of IIM-K,

Welcome to the exciting study in the commercially

important and vibrant subject of ‘Business Law

2011’ As your Faculty Resource Person, I invite

you to enjoy and to actively participate in the learning

of this vibrant subject. I invite you to focus on ‘enjoying’

the learning process and I assure you that all our

Sessions will be exciting voyages of knowledge,

discovery and good innovative creative learning.

Sebastian Tharakan – your friend

The Businesslawlecturer

Ms. Asmitaa Kumar says =

“This is my legal right……”

What is the meaning of a ‘legal right’ ?

When can you say that you have a legal right ?

Copyright © 2011, reserved with: Sebastian Tharakan, The Businesslawlecturer

“Ubi jus, ibi remedium.”

“Where there is a right, there is a remedy.”

Only when a right is enforceable by law, that right

becomes a legal right. If a right is not enforceable by

law, then the right is not / cannot be a legal right.


Classification of law & Legal Systems :

(a) Civil Law ;

(b) Criminal Law ;

(c) Constitutional & Administrative Law

The concept of “jurisdiction of a court”

“Jurisdiction of a court refers to the power / authority of a court to decide, determine and pass orders / judgment over matters / cases that come before it.”

Types of jurisdiction :

(1) Jurisdiction over the subject matter; (2) Local / territorial jurisdiction; (3) Original jurisdiction; (4) Appellate jurisdiction; (5) Pecuniary jurisdiction; (6) Extra-ordinary Original jurisdiction


Why do we need ‘appellate jurisdiction’ ?

Why do we need to have multiple courts /

a hierarchy of judiciary ?

For the advantages of time and convenience,

why not have only ONE court to decide all disputes ?

“No extraordinary power should be lodged

in any one individual.”

– Thomas Paine

“To lodge all power in one party and to keep it there

is to insure bad government.”

– Mark Twain

Distinction between civil law & criminal law


Let us look at a ‘civil case’ …….

Illustration No. 1 = A typical ‘civil case’ :

Ms. Mekala Gummadi, a wholesale dealer in fruits, enters into contract with Ms. Pratima Rani, to supply Ms. Pratima Rani with one ton of mangoes.

The buyer: Ms. Pratima Rani pays the entire purchase price. However, the seller: Ms. Mekala Gummadi, fails to make supply / deliver the goods.


This is a case of breach of contract. It is a civil case, as it raises a private dispute between Ms. Pratima and Ms. Mekala, and so Ms. Pratima files a suit for damages against Ms. Mekala, for the non-supply of goods.

Ms. Pratima Rani v. Ms. Mekala Gummadi. ( plaintiff v. defendant )

( petitioner v. respondent )


Let us now look at a ‘criminal case’ …….

Illustration No. 2 = A typical ‘criminal case’ :

Mr. ‘Brutal’ Baing S. Suresh brutally hits and injures Mr. Siddharth Mehta. Thereafter, the victim: Mr. Siddharth first makes / files a police complaint. This leads to the filing of a criminal case. Since every crime is considered as “an offence committed against the State”, it will be the State of Kerala that prosecutes the accused (Mr. Baing), even though the victim of the crime may be a single individual (Mr. Siddharth)

State of Kerala v. Mr. ‘Brutal’ Baing S. Suresh ( State of Kerala v. The defendant / accused )

(1) Civil law determines and decides private disputes. Therefore civil law is also known as the “law of civil / private wrongs.” On the other hand, every crime is considered to be “an offence committed against the state”, despite the fact that the victim of the crime may be a private individual. Criminal law is thus known as the “law of public wrongs.”


(2) In a civil case, the court has to ‘frame issues’, and based on the evidence, would decide as to whether the civil rights are violated, and if so, whether or not the plaintiff is entitled to any remedy, and if so, what remedy / relief may be awarded to the plaintiff.

(3) In a criminal case, the main question for decision by the court is “whether the accused

is guilty or innocent of the charge.” Based on evidence of the case, and on the facts and circumstances of the case, a criminal case can only end either in an acquittal (innocence) or in a conviction (guilty).


(4) In a civil case, the ‘burden of proof ’ is usually on the plaintiff. By bringing in evidence, the plaintiff’s lawyers will have to prove the case of the plaintiff. In a criminal case however, the burden of proof is on the prosecution. The prosecution will have to prove the guilt of the accused. Besides, the standard of proof required in a criminal case is very high due to the principle of criminal law that: “an accused is presumed to be innocent unless and until proved guilty beyond reasonable doubt.”


(5) In a civil case, the parties bear the expense of

litigation. In a criminal case, it is the state through its public prosecutors, who will prosecute the case. The exceptions in criminal law are offences relating to adultery and cheque bouncing.

(6) The ‘case-title’ of civil cases differ from those of criminal cases.

Mr. ABC (plaintiff) v. Mr. XYZ (defendant) (civil case)

State of Madhya Pradesh v. Mr. XXX defendant (accused) (criminal case)


According to Salmond, the distinction between civil

and criminal law cannot always be maintained

because some acts are considered both as crimes as

well as civil wrongs. Examples: defamation, adultery,

…etc. Further, it is not always true that crimes are

more harmful than civil wrongs. Example: the

negligence of a builder (which is a civil wrong) which

results in widespread loss of lives and property, may

entail more harmful consequences then, say, a simple

assault (which is a crime).


Who can file a case / complaint in a court of law ?


The Doctrine of “Locus standi ”

The ‘Doctrine of Locus standi ’, states that only a person whose legal right has been violated / infringed, or whose legal right is threatened / is likely to be violated / infringed, can file a case /petition / complaint before the court.

Kesavan v. State of TN (1979) Madras HC …

Maganbhai v. Union of India (1969) Gujarat HC…

J. M. Desai v. Roshan Kumar (1976) SC ...


An exception to the rigid ‘Doctrine of Locus

Standi’ = PIL

What is the meaning of ‘PIL’ ?


The advent & growth of PIL :

The case of Sunil Batra II v. Delhi Administration (1980) SC …

The Doctrine of “pro bona publicio” ; “for the public good”

The cases of : (1) Municipal Council, Ratlam v. Vardichand (1980) SC …

(2) MC Mehta v. UOI (1997) (the “Taj Trapezium Case”) SC … (3) Common Cause (Petrol Pump Matter) v. UOI (1996) SC …(4) Peoples Union for Democratic Rights v. UOI (1982) SC …


Ms. Mekala Gummadi has committed ‘breach of contract’, by her failure to supply Ms. Pratima Rani, one ton of mangoes as per their contract. This gives the buyer / purchaser: Ms. Pratima Rani = the right to file a case against the supplier: Ms. Mekala Gummadi.

Let us suppose that Ms. Pratima , for some reason or the other, chooses to wait for six years before she decides to file a civil case against Ms. Mekala. Can Ms. Pratima Rani file a case after six years since the ‘cause of action’ (breach of contract) / dispute arose?


The Law of Limitation

The Limitation Act, 1963 …….

“interest republicae, ut sit fing litium” ;

“it is to the interest to the state, that there shall be an end to litigation.”


The Limitation Act, 1963 states that the limitation period for contractual disputes / contractual matters, shall be = 3 (three) years from the date of the dispute.


Why do we have the Law of Limitation ?

OR

What purpose does the Law of Limitation serve ?


What is the law of limitation / period of limitation

for criminal law / criminal cases ?


… the wrath of World War II :

The Holocaust …

The systematic , bureaucratic, state-sponsored persecution and murder of approximately six million Jews by the Nazi regime and its collaborators ……

… … the tragedy of Auschwitz … …


In November 1947, the United Nations voted in favour of the partition of Palestine, proposing the creation of a new Jewish state: Isreal, an Arab state, and a UN-administered Jerusalem. … …

This partition was accepted by the Zionist leaders, but rejected by Arab leaders, leading to civil war … …

Isreal declared independence on 14 May 1948. … …

… 13 December 1949 : the formation of Mossad … …

… the mission of Mossad :

the capture of Nazi war criminals and bringing them to justice … …

… mission impossible, becomes mission possible ! …


“those who live by the sword; die by the sword …”

… Rudolph Hoess, Adolf Eichmann, Franz Stangl, Friedrich Hartjenstein, Karl Silberbauer, Alois Brunner, Theodor Dannecker, Dieter Wisliceny … … …

International Military Tribunal @ Nuremberg, Germany …

… however, Dr. Josef Mengele, notoriously nicknamed: ‘Angel of Death’ and some other Nazi generals, avoided capture and retribution for their war crimes …


Substantive & Procedural Law

The Constitution of India; the Indian Penal Code, 1860; the

Indian Contract Act, 1872, ….etc., lay down “substantive law” ;

while, the Code of Civil Procedure, 1908; (regulates civil courts)

and the Code of Criminal Procedure, 1973; (regulates criminal

courts) lay down / prescribe “the procedural law” which is to

be followed by courts. The Indian Evidence Act, 1872,

regulates matters of evidence concerning both civil as well as

criminal courts.


The Principles of Natural Justice


The Department of Roads & Surface Transport, Government of India,announces a large and lucrative tender contract for the construction ofthe ‘Golden Quadrilateral.’ Mr. Sachin Maan is the CEO of L & T Construction Co. Ltd, which company is one of the tender applicants. The tender is finally awarded to Mr. Yash Kumar, the MD of Kumar Konstructions , even though the tender quotation of L & TConstruction Co. Ltd., was the lowest quotation.

It is later found that Mr. Politician Puneet Singhvi, the Minister of Roads & Surface Transport, is one of the partners of Kumar Konstructions. On what legal grounds can Mr. Sachin Maan challenge the grant of tender contract to Kumar Konstructions ?


Mr. Ranadip Madhu is a manufacturer of edible oils, who enters into contracts regularly with the Government to supply edible oils. While some of his contracts are still pending, the Government issues order abruptly canceling all contracts with Mr. Ranadip., and also by the same order, declaring Mr. Ranadip. as a ‘Blacklisted contractor.’

On what legal grounds can Mr. Ranadip Madhu. challenge this Government order ?


(1) ‘Nemo judex in causa sua.’

‘No one should be a judge in his own cause.’

Or …

‘The Rule against bias.’


(1) ‘The Rule against bias.’

Kinds of bias:

(i) Personal bias …

Meenglas Tea Estate v. Workmen (1963) SC …

Mineral Development Ltd. v. State of Bihar (1960) SC..


(ii) Pecuniary bias …

J. Mohapatra & Co. v. State of Orissa (1984) SC …


(2) ‘Audi alteram partem.’

‘Hear the other side.’

Or …

‘The Rule of Fair Hearing.’

Or …

‘The Rule that no one

should be condemned unheard.’


(2) ‘The Rule of Fair Hearing.’

The story of Adam & Eve …

Olga Tellis v. Bombay Municipal Corpn. (1985) SC …


Requirements / Facets of the Rule of Fair Hearing :

(i) Proper Notice:

Hotel Ganam v. State of Kerala (1997) Kerala HC …

Joseph Vilangadan v. Executive Engineer, PWD (1978) SC …


Union of India v. Narayanbhai (1985) Gujarat HC …

GSFC v. Lotus Hotels (1983) SC …

Board of High School v. Ghanshyam (1962) SC …


(ii) Right to know the evidence against him / her:

Maneka Gandhi v. Union of India (1978) SC …

(iii) Right to present case and evidence:

(iv) Right to rebut adverse evidence / cross-

examination:


Let me test you!

ABC v. The Principal, Mahendra Medical College

(1981 ) SC …


Exclusions of the Rule of audi alteram partem :

(i) Exclusion in cases of emergency / necessity:

Nathubhai v. Municipal Corpn., Bombay (1959) Bombay HC …

Hyderabad Vansapati Ltd. v. AP State Electricity Roard (1998) SC …

Luga Bay Shipping Corpn. v. The Cochin Port Trust (1998) SC …


(ii) Exclusion in cases of confidentiality:

Malak Singh v. State of Punjab (1981) SC …

(iii) Exclusion based on impracticability:

R. Radhakrishnan v. Osmania University (1974) AP HC …


cee-bl-module no.1 - pgp-15 & fpm-05 of iim-k (copyright 2011, sebastian tharakan, the business...

Documents

typical civil case

typical criminal case

case of breach

legal right

law of civil private

civil rights

law of public wrongs

concept of jurisdiction