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India Vs Pakistan: Kulbhushan Jadhav’s Case
  • By:
  • 18 Jul 2019

History of Kulbhushan Jadhav’s arrest

- Kulbhushan Jhadav is a retired Indian Navy Officer who was arrested by military forces in Pakistan on 3rd March 2016.

- India was informed of this only after 22 days of the arrest.

- Pakistan claims that Jadhav was arrested at the Pak-Afghan border in Balochistan for illegally entering into Pakistan. 

- India refuted Pakistan’s claim stating that Jadhav was abducted by Pakistan forces from Iran.


Pakistan’s course of action

- Jadhav’s case was conducted by a military court in Pakistan. The court awarded a Death Sentence in April 2017.

- India pushed for consular access several times after the sentence was passed, but he was denied access all the times on the grounds of   espionage and spying

- Consular Access can be defined as the right of the foreign nationals that are arrested or detained should be given notice without delay of their   right to have their embassy or consulate notified of     that arrest. In layman’s language, it is the ability of the citizens of a country to have   communication with the diplomats and officers of their country while held in a foreign location.

- Consular access would have hampered the death sentencing of Jadhav after a secret trial conducted by Pakistan.


ICJ’s intervention

- India approached the International Court of Justice in May 2017 after repeatedly being denied consular access.

- India accused Pakistan of violation of the Vienna Convention for denying consular access.

- India also argues that the process of the case was also questionable since it was handled by the military court. On the basis that the Judges of   this court are not required to possess any law degrees. 

- Pakistan refuted the argument by India that the Pakistan military courts do not have/require a legal understanding.

- Pakistan contested that Jadhav was an Indian spy sent to Balochistan to destabilise the country and therefore was not entitled to consular access.

- Pakistan was directed to take no actions against Jadhav until the final hearing of the case.


ICJ’s Verdict 

- The ICJ bench comprising of 16 members passed the verdict on 17th July 2019, nearly two years after the case was first submitted. 

- Only one Judge had a dissenting voice, and it belonged to the former Chief Justice of Pakistan - Tassaduq Hussain Jillani.

- The court clarified that Pakistan failed to inform Jadhav of his rights, and failed to inform India about the arrest his without any delay.

- It was held that Pakistan had violated the Vienna Convention and consular access should be granted.

- By staying the execution of Kulbhushan Jadhav, Pakistan is directed to review his death sentence.

Contempt Of Court
  • By:
  • 10 Jul 2019
Contempt of Court is any conduct that disrespect or disregard for interfering with or prejudice parties or with their witnesses during the litigation before the respective authority and administration of law. The Contempt of Courts Act, 1971 governs the contempt law in India.

The act empowers the Supreme Court and High Court to punish acts of contempt. The Supreme Court and High Courts being courts of record have the constitutional validity to punish for contempt of Court and the Contempt of Courts Act, 1971, according to the jurisdiction. Contempt of Court can be understood as an offence of defying the court authority by disobeying the instructions laid by the court. The Act defines civil contempt under section 2(a) as contempt of court means civil contempt or criminal contempt. The two types of contempt are different in character and very difficult to differentiate.

Section 2(b) of the 1971 Act not only encompasses willful disobedience to any judgment, decree, direction, order etc. of a court, it also takes in its fold a willful breach of an undertaking given to a court of law. The civil contempt is wrong of private nature. It injures the interests of the party, entitled to get benefit from the disobeyed order, whereas criminal contempt is an offence against the society where the contemner undermines the authority of the Court by his words or actions.

Section 2 (c) defines the ‘criminal contempt' as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act, whatsoever which;
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

Also, Article 129 and 215 of the Constitution of India empowers the court to take action against the contempt. Article 129 empowers the Supreme Court whereas Article 215 empowers High Courts. Whereas, Section 10 of The Contempt of Courts Act, 1971 has given the special powers to the respective High Courts to punish contempt of subordinate courts.

Article 129, of the Constitution of India, states that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

Article 215, of the Constitution of India, states that every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

Procedure

The procedures laid as per the Contempt of Court Act, 1971 has to be followed, as mentioned in Article 129 and 215 of the Constitution of India. An individual can recourse to the following options against the contempt.

1. He may place the information before the Court and request the Court to take action.
2. He may put the information before the Attorney General and request him to take appropriate action.
The contemnor alleged is entitled to get a notice about the same an opportunity of being heard, before considering him guilty of contempt and passing an order. 

Punishment

1. Supreme Court and High Court are bestowed with the power to punish the contemnor for the contempt of the Court.
2. As per Section 12 of Contempt of Court Act, 1971, the punishment for the contempt of Court can be the simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both.
3. However, in civil cases, if the Court considers that a penalty is not meeting the ends of justice and that a sentence of imprisonment is necessary then the court shall instead of sentencing him to simple imprisonment, direct that he be detained in civil prison for such period not exceeding six months as it may think fit.

The punishment awarded to an accused may be discharged on apology being made by the accused to the Court's satisfaction. An excuse cannot be rejected on the grounds if accused makes it bonafide.

Limitation

Section 20 of the Contempt of Courts Act, 1971 defines the limitation period within which the actions have to be taken against the contempt. It specifies that the limitation period is of one year from the date on which the contempt is alleged to have been committed.
Juvenile Justice Act, 2000
  • By:
  • 10 Jul 2019
The parliament of India has passed the Juvenile Justice (Care and Protection of Children) Act, 2015 with various debate, protest and intense controversy of its provisions by the fraternity of Child Rights. It came into force from 15 January 2016. The Juvenile Act, 2015 replaced the Indian juvenile delinquency law, Juvenile Justice (Care and Protection of Children) Act, 2000, and allowed the juveniles in conflict with Law of the age group of 16–18, involved in Heinous and dangerous Offences, to be considered as adults.

The Act introduces the concept of three categories of offences, i.e. Petty Offences, Heinous Offences and Serious Offenses. Petty offences mean the offences for which the maximum punishment is the imprisonment up to three years, under the Indian Penal Code or any other law being in force.

Serious offences mean the offences for which the punishment is imprisonment between three to seven year under the IPC or any other law for the time being in force. Heinous offences mean the offences for which the minimum punishment is imprisonment for seven years or more under the Indian Penal Code or any other law being in force. 
The upcoming generations are the asset of our country, and it is our responsibility to ensure a safe environment for them to live. However, it has observed that the rate of juvenile crime in our country is increasing day by day. We can say that Juvenile delinquency is a disease in our society.

The criminal justice system of India has a different approach for every crime, and it also includes exceptions that lead to the clemency of some criminal minds. The exceptions are mentioned in the Indian Penal code, where the courts are more lenient in giving punishment to the juveniles. Our justice system has developed the way that treats the minors in a different way than adults just because our society considers juveniles differently from adults, both in terms of the potential for rehabilitation and level of responsibility. Juveniles are sent to the rehabilitation centre to make their future better to give special care and protection to them, and it is expected that they will turn back as a reformed person. 

Juvenile crimes cannot be stopped only by implementing and amending the juvenile laws. It is more critical to aware of our society about the same.  It is seen that juveniles involved in crime are not criminals they are victims of society. Juvenile delinquency can be stopped, provided special care is taken at home. 
Also, it is observed that severe crimes like rape and murder are gone unpunished when the offender wears the mask of juvenility.

When the juvenile is alleged to conflict with the law and is apprehended by the police, the child will be placed under the charge of juvenile police or the child welfare police officer, who will produce them before the Juvenile Justice Board. The Juvenile Justice Board plays an important role here.

One of the reform includes the Observation Home for Juvenile Offenders. It is an institution, where the delinquent and neglected juveniles are kept until the pending decisions of the case. The observation home admits the children that are brought by the police or probation officers or their parents voluntarily.

The Observation Home has to be placed for changing attitudes and behaviour of the inmates. Juvenile offenders have the same inclination of constitutional rights as an adult, such as a trial conducted be fair and speedy.

The Juvenile is not punished usually, but it can in no circumstances take away the constitutional guarantees of liberty from him/her. The state must protect and rehabilitate the juvenile offenders, but the protection of the juvenile should not be the custody of the child.

Concerning the rehabilitation and reformation of Juvenile, we must build the efficient linkages between the states and districts and also among various government agencies in association with the groups protecting child rights and legal services for the welfare of children and their families. Alternatively, else, the juvenile justice system will become like the criminal justice system resulting in the hardening of children caught instead of reformation.
Company And Types of Companies
  • By:
  • 09 Jul 2019
Introduction

A Company is defined as an association which is formed by natural persons, legal entities or a mixture between the two and the main purpose of the company is to develop commercial activities under the Indian Companies Act, 2013.  Various legal experts define the company. Section 2(20) of the Companies Act, 2013, represents the ‘Company' as follows: "Company means a company incorporated under this Act or any previous company law."

There are mainly six types of Company registration in India;

1. Private Limited Company: In the Private Limited Company, personal assets are different from business assets. Every shareholder is responsible for his share of the total capital. Private Ltd Companies need to maintain the records of financial transactions, board meetings, and annual reports, and so on.

A Private Ltd company consists of a shareholder, whereas the total capital of an entity is made of shares. The shares can be sold or transferred to other individuals who then becomes one of the owners of the company. Further, a Private Limited Company consists of three types:

i) A company limited by shares means the company where the members are having its limited liability by the memorandum, if any, unpaid by the members.

ii) A company limited by guarantee is a company consisting the limited liability of its members by the memorandum to such amount as the members may respectively undertake to contribute the assets of the company in the event of its winding-up.

iii) Unlimited company – A company that has no limit on the liability of its members is called an unlimited company.

Here are a few examples of the private limited Companies: Flipkart, Parle, Snapdeal, Pepsi, Book mu Show, etc.

2. Partnership: Partnership business entities are similar to a sole proprietorship. The main difference between a partnership and sole proprietorship is that two or more members are necessary to form a partnership. The responsibilities, roles and the share of the partners are defined in an executed partnership deed.

The partners in a partnership deed define the ratio of profit sharing. In the case of the losses, each of the partners is responsible personally. Personal assets of partners can be used to compensate the losses incurred if any as decided by the partners. Examples of a partnership firm are as follows:

i. Twitter: It is founded by Evan Williams, Biz Stone, and Jack Dorsey and is an outstanding example of prosperous business partnership. 
ii. Google: The founders of the Google namely Sergey Brin and Larry Page, ran a small search engine decade ago and turned it into the leading search engine in the entire world.

3Limited Liability Partnership: Limited Liability Partnership firm is different from the partnership firm as the personal assets are different from the business assets. In case the business incurs damages, the personal assets of partners are not at risk as to the share capital in entity defines the maximum liability of every partner. As compared to Sole Proprietorship and Partnership, Limited Liability Companies always has good credibility among the investors. The basic reason includes the maintenance of incorporation, tax and financial records. 

4. Sole Proprietorship: A company registered in the name of a single person is called Sole Proprietorship. That sole person is wholly responsible for the welfare of the entire business. The owner funds the business takes the profits and bear the losses. Do you know that companies like Coca-Cola, Apple, Hewlett-Packards, Amazon, etc. all started their company as Sole Proprietorship companies in India. 

5. One Person Company: One Person Company (OPC) is a newly proposed type of company and is introduced in the Companies Act, 2013 to support entrepreneurs who are capable of starting a venture by allowing them to create an entity by an individual. The main advantage of an OPC is that there can be only one individual in an OPC, while a minimum of two members is necessary for incorporation and maintenance of the company or Limited Liability Partnership.

An OPC is a separate legal entity as per company which offers limited liability protection to its shareholders and has continuity of business and is accessible to incorporate.

6. Section 8, a Company: According to Section 8, a company is an organisation which is registered as a Non-Profit Organization (NPO). NPO/company has its objective of promotion of arts, commerce, charity, education, protection of the environment, science, social welfare, sports, research, religion and intends to apply its profits, if any, or other income in promoting its objects.

Bankruptcy And Insolvency in India
  • By:
  • 09 Jul 2019
What is Bankruptcy?

When an organisation is unable to take care of its financial obligations or make payment to its creditors, an organisation files for bankruptcy in the court of law, a petition is filed in the court for the same where all the outstanding debts of the company are measured and paid out if not in full from the company’s assets. 

Insolvency and Bankruptcy Code: Section 79 (4) "bankruptcy" means the state of being bankrupt; (the state of being completely lacking in particularly good quality.)

Two primary objectives of Bankruptcy are:-
• to do the fair settlement of the legal claims of the creditors with an equitable distribution of debtor's assets, and 
• to provide the debtor with an opportunity for a fresh start.

Bankruptcy amounts to a business failure, but not voluntary winding up the same. The Government of India has implemented the Insolvency and Bankruptcy Code (IBC) to strengthen all laws correlated to insolvency and bankruptcy and to tackle the problem of Non-Performing Assets (NPA) that has been dragging the Indian economy for years.

Companies not only generate employment but also create economic growth on a large scale. It is essential to bring in a mechanism to settle entities driving into bankruptcy, without causing damage to the economy. That's where IBC came in.

Before the initiation of IBC, the companies took about five to six years with respect for the dissolution of its operations; the number has dropped to a year nowadays. It helps to increase the ease of doing business and also to develop a stronger sense of trust in investors and lenders.

There have been significant debates, whether the implementation of IBC is a boon or a bane. The whole process of insolvency and liquidation is always in the hands of the debt holders and shareholders. Generally, by the time the entire process completes, the assets are eroded with very few left for distribution.

The IBC has flagged the way for a significant power shift from the hands of debt and shareholders to creditors and now a creditor with a default of Rs 1 lakh, can roll the company into liquidation. However, there are some grey areas where it evolves foreign creditors.

The benefit of this enactment has been the time-restricted resolution process. Besides, the IBC regulations recently amended that promoters are now prohibited from bidding or getting engaged in the process of selling the assets and making the whole process transparent and reliable. It has fostered an immense hope of faster recovery, lesser defaults, and a stronger lending and investment sector in India.

Most of the businesses have outstanding debts in crores based on their business practices. They partially fail in reasoning how a creditor can file for bankruptcy if the company defaults payment to other creditors and not the creditor who is the applicant.

The law has now made it very clear that promoters and business holders can no longer work as per their rules. The authorities are trying to make a genuine attempt to reduce the time by curbing delays and preventing NPAs.

The development in law has been a massive boon for the mergers and acquisitions of the companies while every debt-stricken company tries the restructuring of the debt or selling its distressed assets to the potential buyers. 
The banks have been piling up on stressed assets of the companies, and the cases of IBC being filed with the National Company Law Tribunal (NCLT) are increasing day by day.

All in all, the IBC seems to be in its first stage, backed by a persuasive composition and structure. The government is getting evolved for bettering the provisions of the code; furthermore, the Supreme Court (SC) has also amended it many times.

The purpose of the IBC is to develop a proper process for the resolution of insolvency, which focuses on the same and not becomes a mechanism for recovery. It is observed that the work is in progress, with a better future as it is trying to overcome obstacles and try to tackle important issues.

Procedure to file a case for Insolvency:

A case for insolvency is filed before the adjudicating authority, i.e. in NCLT by financial or operation creditors or the corporate debtor themselves. The plea is allowed or rejected in a maximum of 14 days. If the petition is accepted, the tribunal appoints an Insolvency Resolution Professional (IRP) to draft a plan for resolution within 180 days (extendable by 90 days). After that, the court initiates the Corporate Insolvency Resolution process. For the time, the Company Board of Directors are suspended, and promoters do not have a say in the management of the company.

If required by IRP, they can seek the support of the company’s management for day-to-day operations. Moreover, if the Insolvency Resolution Professional fails to revive the company, the process of liquidation is initiated.

Accident Laws Under Aviation
  • By:
  • 09 Jul 2019
Aviation Accident Laws pertain to the formulation of policies, implementation and regulation for the growth and expansion of air transport, aeroplane crashes, air traffic, etc. Travelling by aeroplane is still one of the safest forms of transportation, and aeroplane crashes are infrequent, they do still happen occasionally. When they do, the specific area of law governs whereabouts of the accident both literal and figurative.

Nowadays, the use of air transport is a part of life, whereas the primary concern for the aviation industry is the safety of people. Various systems are established under the different acts for the safety of people. 
Families those killed in the accident as well as the survivors are brought to a broad range of legal suits against the responsible airline, aircraft manufacturer, pilot or others. The Aviation laws are similar to personal injury, and obviously, the claims mainly rely upon determining the cause of the accident. The Accident may cause due to pilot error, mechanical failures or any of the defective parts.

The Ministry of Civil Aviation is the ministry responsible for the formulation of policy and regulation of civil aviation in India. The MCA oversees the planning and implementation of the schemes for the growth and extension of civil air transport, airport facilities, air traffic services and carriage of passengers and goods by air.

The principal regulatory authorities functioning under the authority of MCA are Directorate General of Civil Aviation, Airports Authority of India, Airport Economic Regulatory Authority, the Bureau of Civil Aviation Security.    
The events of investigation of incident and accident are governed by the Aircraft (Investigation of Accidents and Incidents) Rules 2012. The Rules are provided to the Aircraft Accident Investigation Bureau of India in order to inquire into the occurrence of accidents or incidents.

When after completion of the investigation, any new and material evidence becomes available, the central government may direct the reopening of the case or inquiry. The Aircraft Accident Investigation Bureau maintains the database of a severe incident and accident to provides the same for inclusion in safety data being maintained by the Directorate General of Civil Aviation, which is required to share their database with the Aircraft Accident Investigation Bureau regularly.

The AERA Appellate tribunal governs dispute between the service provider and consumer goods. Consumer disputes are taken up by the Consumer  Redressal Forums under Consumer Protection Act, 1986. The type of court assigned is determined by the value of the dispute. Also, the type of dispute determines whether the matter is civil or criminal.
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