Companies (Appointment and Qualification of Directors) Amendment Rules, 2018

Companies (Appointment and Qualification of Directors) Amendment Rules, 2018

MCA vide its notification dated January 26, 2018 issued Companies (Appointment and Qualification of Directors) Amendment Rules, 2018 to amend the existing rules i.e. Companies (Appointment and Qualification of Director) Rules, 2014.

Rule 9 has been substituted now in case of proposed directors not having approved DIN, the particulars of maximum three directors shall be mentioned in Form No. INC-32 (SPICE) and DIN may be allotted to maximum three proposed directors through Form INC-32 (SPICE).

Form DIR-3 shall be signed and submitted electronically by the applicant using his or her own Digital signature certificate and shall be verified digitally by a company secretary in full time employment of the company or by the managing director or director or CEO or CFO of the company in which the applicant is intended to be appointed as director in an existing company.

Advertisements

AN AGREEMENT TO SELL DOES NOT CONFER ANY RIGHT, TITLE OR INTEREST, EXCEPT OF CONFERRING A RIGHT TO SEEK ENFORCEMENT OF THE AGREEMENT, BY FILING A SUIT FOR SPECIFIC PERFORMANCE, UNDER THE SPECIFIC RELIEF ACT, 1963.

Veena Tuli vs Ram Snehi on 25 March 2015 in the Punjab and Haryana High Court
Hon’ble Division Bench of this Court considered the matter in its entirety and observed that AN AGREEMENT TO SELL DOES NOT CONFER ANY RIGHT, TITLE OR INTEREST, EXCEPT OF CONFERRING A RIGHT TO SEEK ENFORCEMENT OF THE AGREEMENT, BY FILING A SUIT FOR SPECIFIC PERFORMANCE, UNDER THE SPECIFIC RELIEF ACT, 1963.
Subsequently, amendment was introduced to SECTION 49 OF THE INDIAN REGISTRATION ACT AND THE HON’BLE DIVISION BENCH CONSIDERED THE PROVISO TO SECTION 49 AS WELL AS PROVISION OF SECTION 53-A OF TRANSFER OF PROPERTY ACT, 1882 AND OBSERVED THAT THE SUIT FOR SPECIFIC PERFORMANCE BASED UPON AN UNREGISTERED AGREEMENT TO SELL ACCOMPANIED BY DELIVERY OF POSSESSION OR EXECUTED IN FAVOUR OF A PERSON, WHO IS ALREADY IN POSSESSION CANNOT, THEREFORE, BE SAID TO BE BARRED BY SECTION 17(1A) OF THE REGISTRATION ACT, 1908.
The Hon’ble Division Bench disagreed with the judgment in Gurbachan Singh Vs. Raghubir Singh’s case (supra) and affirmed the judgment in Mood Chand Mindhra Vs. Smt. Indu Bala, 2012(5) RCR(Civil) 646.
As such, the Court of first appeal had placed reliance upon Gurbachan Singh Vs. Raghubir Singh’s case (supra) and the said judgment has already been over ruled by Hon’ble Division Bench of this Court and as per law, THE AGREEMENT DATED 28.01.2005 DOES NOT REQUIRE COMPULSORY REGISTRATION FOR SEEKING SPECIFIC PERFORMANCE OF THE AGREEMENT in the case in hand and this question of law is answered accordingly in favour of the appellant.
___________
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
RSA No.1814 of 2014(O&M)
Date of Decision: 25.03.2015

Veena Tuli ….. APPELLANT
VERSUS
Ram Snehi ….. RESPONDENT

PRESENT: –
Mr. Vikram Singh, Advocate for the appellant.
Mr. Y.S. Saini, Advocate for the respondent.
CORAM: HON’BLE MR. JUSTICE SHEKHER DHAWAN
1) Whether Reporters of the local papers may be allowed to see the judgment?
2) To be referred to the Reporters or not?
3) Whether the judgment should be reported in the Digest?

SHEKHER DHAWAN, J.
This Regular Second Appeal is directed against judgment and decree dated 11.02.2014 passed by the Court of Additional District Judge, Chandigarh whereby the judgment and decree dated 22.11.2010 passed by Additional Civil Judge (Sr. Divn.), Chandigarh
was reversed in Civil Suit No.1 i.e. Civil Suit No.30 of 2006, JYOTI titled as Smt. Veena Tuli Vs. Ram Snehi (Thekedar) and
the appeal filed against Civil Suit No.2 i.e. Civil Suit No.502 of 2008, titled as Ram Snehi Vs. Smt. Veena Tuli was dismissed.
For convenience sake, hereinafter, reference to the parties is being made as per their status in the Civil Suit.
The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. In brief, the facts relevant for disposal of this second appeal are to the effect that two separate Civil Suits were filed by the parties. The first Civil Suit No.30 of 2006 titled as Smt. Veena Tuli Vs. Ram Snehi (Thekedar) was filed for specific performance of agreement of sale dated 28.01.2005 and for permanent injunction restraining the defendant from alienating the house bearing khasra No.73/55 in New Darshani Bagh, Mani Majra to any other person except the plaintiff and for restraining the defendant from interfering in the peaceful possession of plaintiff in two rooms set on first floor.
The second Civil Suit was filed by Ram Snehi against Smt. Veena Tuli vide Civil Suit No.502 of 2008 for seeking declaration to the effect that agreement of sale dated 28.01.2005 is wrong, null and void and has no validity in the eyes of law and consequently the earnest money paid by the defendant to the plaintiff stood forfeited in favour of the plaintiff and suit for mandatory injunction directing the defendant to hand over the possession of two rooms set on first floor of house bearing khasra No.73/55, New Darshani Bagh, Mani Majra.
However, the main point involved in both the Civil Suits is regarding validity of agreement of sale deed dated 28.01.2005. Smt. Veena Tuli plaintiff in Civil Suit No.1 has come with the plea that the said agreement was duly executed and she is entitled to seek specific performance of the said agreement whereas Ram Snehi has come up with the plea that the said agreement is not a valid agreement.
The Court of first instance settled the following issues and the parties were put to trial:
1. Whether the defendant has executed an agreement to sell dated 28.1.2005, as alleged? OPP
2. If the above issue is proved in affirmative, whether the plaintiff is entitled for specific performance of agreement to sell dated 28.1.2005, as alleged? OPP
3. Whether the plaintiff is having possession over the suit property as alleged? OPP
4. Whether the plaintiff is entitled to relief of permanent injunction restraining the defendant from alienating the suit property in any manner, as alleged? OPP
5. Whether the plaintiff is entitled for relief of permanent injunction restraining the defendant from interfering into his possession, as alleged? OPP
6. Whether the suit is not maintainable? OPD
7. Whether the suit is liable to be dismissed with special cost? OPD
8. Relief.”
On the basis of oral as well as documentary evidence available on file, the Court of first instance decided issues No.1 and 2 and 4 in favour of Smt. Veena Tuli plaintiff in Civil Suit No.1. Issue No.3 was partly decided in favour of plaintiff upto the extent of two rooms set only whereas issue No.5 was decided that the plaintiff was not entitled for injunction restraining the defendant from interfering in his possession. Issues No.6 and 7 of Civil Suit No.1 were not pressed before the Court of first instance.
However, following issues were framed in Civil Suit No.2, titled as Ram Snehi Vs. Veena Tuli:
1. Whether the plaintiff is entitled to the declaration and mandatory injunction as prayed for and grounds taken in the plaint? OPP
2. Whether the suit is not maintainable in the present form? OPD
3. Whether the plaintiff has no cause of action to file the present suit? OPD
4. Whether the plaintiff is estopped by his own act and conduct? OPD
5. Whether the plaintiff has not come to the court with clean hands? OPD
6. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD
7.Relief.”

However, issue No.1 was decided against the plaintiff. Issues No.2 to 5 were decided in favour of the defendant whereas issue No.6 was decided in favour of the plaintiff and consequently in Civil Suit No.1, it was held that Smt. Veena Tuli was entitled for specific performance of agreement dated 28.01.2005 and Ram Snehi was directed to get the same executed within two months. Defendant Ram Snehi was also restrained from alienating the suit property to any other person except the plaintiff. At the same time, the Court of first instance decided that Civil Suit No.2 was without any merit and the same stood dismissed.
Being aggrieved of passing of said judgment and decree dated 22.11.2010, Ram Snehi preferred an appeal and the Court of first appeal recorded findings that the agreement was not registered, which is otherwise compulsorily registrable. Consequently, the appeal filed by Ram Snehi was accepted and the finding recorded by the Court of first instance on issue No.2 for specific performance was reversed. Specific findings were recorded that agreement to sell was duly executed but the same was not a valid document being unregistered document and, as such, the present Regular Second Appeal before this Court.
Initially, no substantial question of law was settled by this Court. However, Regular Second Appeal is maintainable only if there is any substantial question of law involved in the matter in controversy and the same can be looked into by this Court at any stage while deciding the matter. In the case in hand, the substantial question of law is as under:
“1.Whether the agreement for specific performance by way of sale of immovable property requires compulsory registration or not?”

At the time of arguments, Mr. Vikram Singh, learned counsel for the appellant took the plea that both the Courts below have recorded the finding that agreement dated 28.01.2015 was duly executed and the same has been proved on the file. Oral as well as documentary evidence is available on the file on this point. The Court of first instance recorded the finding that plaintiff Smt. Veena Tuli was entitled to seek specific performance of the sale. However, the Court of First appeal reversed the finding only on the point that the said agreement dated 28.01.2005 required compulsory registration as per law laid down by 2015.03.26 15:52 I attest to the accuracy and authenticity of this document High Court Chandigarh this Court in case Gurbachan Singh Vs. Raghubir Singh 2010(5) RCR(Civil) 737. However, the said judgment has already been over ruled by Hon’ble Division Bench of this Court in case Ram Kishan and another Vs. Bijender Mann @ Vijender Mann and others, 2013(2) CivCC 188 and, as such, the findings recorded by the Court of first appeal are liable to be reversed and the substantial question of law be answered in favour of the appellant.
While arguing on this point, learned counsel for the respondent fairly conceded that both the Courts below have already recorded findings of fact that agreement dated 28.01.2005 has been held to be proved in accordance with law by both the Courts below. However, the execution of the said agreement was denied by the respondent in the written statement and, as such, the findings recorded by the Court of first appeal do not call for any interference and the appeal is without any merit and the same be dismissed.
Having considered rival contentions raised by learned counsel for both the parties, this Court is of the considered view that there is no dispute on the facts that real dispute between the parties in both the Civil Suits was regarding validity of agreement to sell dated 28.01.2015 and both the Courts below have recorded concurrent findings based on facts and evidence available on the file that the said agreement was duly proved on the file. The said findings do not call for any interference. The only legal question involved in the case is whether the said agreement required compulsory registration before seeking specific performance of the sale.
The Court of first appeal had placed reliance upon judgment of this Court in case of Gurbachan Singh Vs. Raghubir Singh’s case (supra). The said judgment was considered by Hon’ble the Division Bench of this Court on a reference as there was conflict between two Single Bench judgments titled as Gurbachan Singh Vs. Raghubir Singh, 2010(5) RCR(Civil) 737 and Birham Pal Vs. Niranjan Singh, 2011(2) Law Herald (Punjab and Haryana) 1136.
Hon’ble Division Bench of this Court considered the matter in its entirety and observed that an agreement to sell does not confer any right, title or interest, except of conferring a right to seek enforcement of the agreement, by filing a suit for specific performance, under the Specific Relief Act, 1963. Subsequently, amendment was introduced to Section 49 of the Indian Registration Act and the Hon’ble Division Bench considered the proviso to Section 49 as well as provision of Section 53-A of Transfer of Property Act, 1882 and observed that the suit for specific performance based upon an unregistered agreement to sell accompanied by delivery of possession or executed in favour of a person, who is already in possession cannot, therefore, be said to be barred by Section 17(1A) of the Registration Act, 1908. The Hon’ble Division Bench dis-agreed with the judgment in Gurbachan Singh Vs. Raghubir Singh’s case (supra) and affirmed the judgment in Mood Chand Mindhra Vs. Smt. Indu Bala, 2012(5) RCR(Civil) 646.
As such, the Court of first appeal had placed reliance upon Gurbachan Singh Vs. Raghubir Singh’s case (supra) and the said judgment has already been over ruled by Hon’ble Division Bench of this Court and as per law, the agreement dated 28.01.2005 does not require compulsory registration for seeking specific performance of the agreement in the case in hand and this question of law is answered accordingly in favour of the appellant.
In view of the above, the present appeal is accepted and judgment and decree dated 11.02.2014 passed by the Additional District Judge, Chandigarh stands set aside whereas judgment and decree dated 22.11.2010 passed by the Court of first instance i.e. Court of Additional Civil Judge (Sr. Divn.), Chandigarh stands restored and suit filed by plaintiff Smt. Veena Tuli in Civil Suit No.1 stands decreed and consequently, the suit filed by Ram Snehi in Civil Suit No.2 stands dismissed.

(SHEKHER DHAWAN) JUDGE
March 25, 2015

On Judicial dissent

A dissent in a Court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day.”- CHARLES EVANS HUGHES in 1928.

ALAN BARTH, a distinguished senior editorial writer on law and civil liberties with the Washington Post for almost 30 years, in his treatise has endeavoured to show how the dissenting judges have often been PROPHETS WITH HONOR, “men who foresee the future before events make it manifest to their contemporaries.”

Barth has in his treatise brilliantly portrayed how in decisions, involving the individual rights and liberties of the citizens, a dissenting judge has sat down with brilliant force of logic and expression, a contradictory judgement, which was proved years later to be the philosophical basis for a reversal by the majority of the Court.

John Marshall Harlan, dissenting in Plessy Vs. Ferguson 1896

John Marshall Harlan, dissenting in Plessy Vs. Ferguson 1896, had contended that the American Constitution was “Colour Blind”. Harlan, in his dissent had anticipated by 58 years hence. Finally, the judgement of 1896 was unanimously upturned by the Warren Court by overturning the doctrine of “Separate but equal”.

Similarly in Olmstead Vs. United States, 1928, Louis D Brandeis, dissenting, argued in the famous Wiretapping Case, that the makers of the American Constitution had “Conferred the right to be left alone….the right most valued by civilised men”.

Flag Salute case

Harlan Fiske Stone’s dissent in Minersville School District Vs. Gobitis, in 1940, in the famous “Flag Salute” case was validated only 3 years later, in another Wartime patriotism case, by a majority decision that “Authority is here to be controlled by public opinion, not public opinion by authority”.

In the 1942, Betts Vs. Brady case Hugo L Black, dissenting by holding that “No man shall be deprived of Counsel merely because of his poverty any other practice seems to me to defeat the promise of our democratic society,” anticipated by 20 years the landmark GIDEON decision.

“one man, one vote” decision

Justice Black’s dissent in Colegrove Vs. Green, 1946, against the majority’s denial of equal representation, was subsequently reversed in the historic Baker Vs. Carr, “one man, one vote” decision.

In 1951, in the Dennis Vs. United States case, William Q Douglas dissented against the conviction of 11 American Communist Party leaders for advocating the violent overthrow of the government, with an exposition of the 1st Amendment doctrine, “Free speech is the rule, not the exception the restraint to be constitutional, must be based on more than fear.” The dissent was upheld in the 1957 Yates Case that restored Oliver Wendell Holmes’s original concept of “clear and present danger”.

Opinions written for the Court are supposed to define, as clearly and concisely a possible, the meaning and application of law in the context of a particular case. Dissenting as also concurring opinions, on the other hand, are meant to convey the individual views of the justices who write them, and so, on occasion, they convey also some of the passion with which those views are charged. Freed from the constraints entailed in trying to express the sense of a majority, they embody, at times, passages of great force, eloquence, and order. Now and then they give rise to the level of literature, offering some of the most pungent polemical writing ever produced, as in the case of Justice VK Krishna lyer.

Dissents give judges an opportunity to look beyond the circumstances of a particular case and discuss its larger implications in terms of general principles and its impact on the future. That is why they are at their best, prophetic.

Judicial dissent is, at its best, a form of prophecy in the Biblical sense of the term. It reflects, at least on occasion, not only a protest against what the dissenter deems error or injustice, but an Isaiah like warning of unhappy consequences.

Like a sear, the dissenter sometimes peers into the future. He will be accounted wise or foolish as the unfolding of events proves him right or wrong. A dissenting judge always hopes that a later day decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.

A dissent is not an attempt to win over One’s colleagues.

It deals with a die already cast, an issue already determined. The most that the dissenter can hope to do, so far as the present is concerned, is to persuade contemporaries off the court that his associates were mistaken, to mobilise public opinion against them, as it were a dubious satisfaction since the Court is not supposed, in any case, to be responsive to popular pressure. A judicial dissent, then, is basically a plea to posterity.

Dissenting opinions enable a judge to express his individuality. He is not under compulsion of speaking for the Court and thus of securing concurrence of a majority. A dissenting judgement momentarily lasts a judge off the judicial leash. It affords an outlet for individuality, independence, idiosyncrasy, a divergence from accepted, official or conventional wisdom.

Defining and expounding the law

Rhetorical flourishes, emotional outbursts may be gratifying to a writer and yet repelling to a colleague, especially a colleague who is asked to subscribe to what is written as an expression of his own views. Majority opinions, therefore tend to be bare-bones versions of a consensus, prosaically defining and expounding the law.

The trouble with a dissenting opinion, of course, is that it casts a certain shadow on the majority opinion, which is, after all, at least for the time being, the authoritative view of the issue that the Court has considered. A dissent makes it plain that one or more jurists, as eminent as those who constitute a majority of the Court, think that the matter has been wrongly decided.

There are those who think it desirable that dissenting should not be disclosed as they detract from the force law.

When unanimity can be obtained without sacrifice of conviction, it strongly commends the decision to public confidence. But unanimity which is merely formal, which is recorded at the expense of strong, conflicting views, is not desirable in a court of last resort, whatever may be the effect on public opinion at the time. This is so because what must ultimately sustain the court in public confidence is the character and independence of the judges. They are not there simply to decide but to decide them as they think they should be decided. Independence does not mean cantankerousness, and a judge may be a strong judge without being an impossible person. Nothing is more distressing on any bench than the exhibition of a captious, impatient, querulous spirit.

Although dissent opinions are generally prompted by strong feelings and often connote a condemnation of the judgement of colleagues, there is a tradition in the Court that they ought to be stated in terms that indicate respect, and even defence, for the majority holding the different view.

It would be romantic to suppose that dissenting opinions always, or very often, embody great wisdom or repute error on the part of the majority.

All too frequently, a dissent expresses no more than an aberrant view arising out of an individual justice’s prejudices.. of what Justice Hughes called “Cantankerousness.”

Sometimes it has served to stir the sensibilities and prod the consciences of the country, eventually leading the Court which is, in a true sense, the custodian of the country’s conscience. “To correct the error into which the dissenting judge believes the court to have been betrayed.”

Invalidate acts of legislation and executive branches of the state and national governments

The Supreme Court, empowered, as it has been to invalidate acts of legislation and executive branches of the state and national governments, has at once mirrored and at the same time powerfully shaped the character of the country. Although it has, in considerable measure, been insulated from political influences by the life tenure of its members and by the aura of Olympian detachment surrounding it, the Court is not impervious to social developments. It has responded, in recent years, to changing popular attitudes.

The Supreme Court does not easily acknowledge error or overturn its own past
judgments. Stare Decisis, the authority of the past, has always and necessarily been a vital principle of the Court’s conduct. The Court bows to the lessons of experience and the force of better reasoning. The Court is, besides, and above all else, an institution.. with all that the term implies regarding roots and a respect for tradition.

What it comes down to, then, is a recognition that precedent is a valuable stabilizer, not lightly to be overridden, yet not slavishly to be obeyed.

Justices of the Supreme Court are rarely TITANS, they are mortal men, endowed usually with more than ordinary intellectual powers and with the exceptional richness of learning and with experience, but nevertheless subject like other mortal men to vagaries and failures of understanding. And so, from time to time, the Court confesses error and corrects itself, overturning its own past judgement, not capriciously on the basis of changing personal preferences but rationally, in the light of logic and experience.

The process of self-correction has been repeated again and again when experience overrode a logic demonstrable by a totally new trend of thinking.

It is the time the Courts respond to changing attitudes.

BEST LEGAL CONSULTANCY

Legal consultants in Chennai

Rajendra law office provide best legal consultancy service in India. Visit our office to solve all your legal problems.  Run your business happily without any problem. We face problems on your behalf.

Contact : +91-9994287060 for appointments for consultaion and Litigation services.

BEST LEGAL ADVISORS IN INDIA FOR COMPANIES AND INDIVIDUALS

Nobody can deny the truth that there are situations where the presence and services of lawyers are Very much essential. Regarding Lawful things, lawyers have the freedom to do what they want to do for their clients. Solicitors strictly follow legal ethics. Professional Ethics of law will make the lawyers to work within the required moral Specifications to make their work most important section of the cultured community.

The most commendable practices of our team of Legal Advisors :

LEADING LEGAL ADVISORS IN INDIA

Upholding client privacy and confidentiality.

Client Privacy and confidentiality refers to our Advocate’s principle of nondisclosure of the data concerning our clients to any third party within the absence or without their permission and with none valid reason. it’s the duty of accountable legal counsel to stay the identities of our Clients confidential. This principle is recognized in most legal practices everywhere.This is supposed to shield the interests of the clients.

Legal Advisors in India for Companies are not common. Our Law firm offers Legal Advisory services in India.

Our legal advisors Counsel encourage open communication with our clients and are honest to them concerning their case.

Any case that requires a legal consultant need a two-way correspondence. The Client and the lawyer ought to cooperate to locate a positive answer for determination the Legal issues. Rajendra Law office Legal advisers guides urge their clients to be more transparent about their unsolved problems. This will permit legal advisors to make a cautious assessment of the certainties, and empower them to figure great methodologies to take care of the issue. Great legal advisors are additionally legit to their clients about their Legal problems. They open up on the conceivable outcomes in the most target way, yet avoid letting their clients stick to false trusts.

Honest Advocates Fees for Legal Advisory : 

Sincere and dedicated Lawyers from our law firm follow the professional ethics. We provide clear fees structure for our clients to achieve the solutions for their cases. The transparency in this regard will give a chance for their clients to raise the funds. Rajendra legal advisors are able to give their clients the clear picture about how much it would costs for the case from beginning to the end. If the correct cost is not conveyed then the client may not be prepared to pay the required fees for that particular resolve that legal issue. In most of the situations the clients leave the cases in the middle to hang with out completing the balance part of the resolution. Many of the people will incur heavy loss and withdraw the cases due to lack of budget preparation for fees.

Best Legal consultants regularly update about their case to their clients.

If the improvement in the case is conveyed to their clients, it will make them relaxed and continue the work peacefully. Our Lawyers for legal Advice will keep the clients updated in each and every level of movement which happens in the legal proceedings. The updates of the cases will allow both our law professional and our client to generate innovative ideas to make their case to become a successful one.

Our Legal Advisors Entertain the client’s complaints following the professional ethics.

Our Lawyers are extraordinary brilliant and legal knowledgeable people. They are immune to misinterpret. In few cases, If they are found to be lack of knowledge about the cases, they will take complaints with Dedication and Politeness. Our Wise attorneys do not oppose and repel to the complaints and argue if the clients complains regarding the case movement. OurLegal advisors will educate our client and give the clear picture about the cases to understand. Our senior lawyers deliver legal services for a reasonable fee. We take good care of our clientele to clear all their legal problems.

Our Attorneys in legal Advisory Counsel

Rajendra law office is a legal consultant and a Team of expert Law associates. Our Attorneys in legal advisory counsel work round the clock by understanding that it is a honorary profession.  It will be proud for any lawyer to render their duty in a prestigious law firm at Chennai. We provide expert legal advice for corporate and personal legal concerns as well like Financial issues,  property settlements, immigration, accounting services, Company formation and Issues in Businesses.

CONTACT +91-9994287060 FOR LEADING LEGAL ADVISORS IN INDIA