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Questions
Write a short note
on sources of
Indian Business
Law.
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Answers
The sources of Indian business law are:
Statutes such as the Indian Contract Act, 1872, the Sale of Goods Act, 1930, the
Partnership Act, 1932, the Negotiable Instruments Act, 1881, and the Insurance Act,
1938.
Common law In the absence of a legal provision on a subject, the Indian courts
apply the English common law. Even in interpreting Indian laws, the Indian courts
refer to English decisions.
Custom and usages: Indian business customs and trade usages, unless excluded
by a statute, are allowed to govern business transactions. The Negotiable
Instruments Act, 1881, has not excluded the trade usage of hundis as negotiable
instruments.
Precedents: The main contribution of courts towards law-making is in the form of
decisions in law suits. The cases decided by the Supreme Court and other courts
have served as precedents to be followed by lower courts.
Justice, equity and good conscience: The equitable principles of law developed by
the English equity courts are the guiding force behind most Indian statutes on
business laws. Moreover, Indian courts make use of these principles of equity in
interpreting the Indian law as and when necessary.
2 Marks each
For a contract to be valid, it is necessary that the parties provide free consent to its
terms. If there is no free consent, the contract is voidable at the option of the party
whose consent was not free. Consent is said to be free when it is not caused by
Coercion: (Sections 15 and 72): Coercion refers to any of the following
A false suggestion made as a fact by one who does not believe it to be true
Right of subrogation: Section 140 provides that where a surety has paid the
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Explain
the
features and kinds
of Bailment.
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guaranteed debt on the due date or has performed the guaranteed duty on the
default of the principal debtor, he/she is invested with all rights that the creditor
has against the debtor. In other words, the surety is subrogated to all rights
that the creditor had against the principal debtor. Hence, if the creditor loses or
without the consent of the surety parts with any securities (whether known to
the surety or not), the surety is discharged to the extent of the value of such
securities (Section 141). Further, the creditor must hand over to the surety the
securities in the same condition as they formerly stood in his/her hands.
Right to be indemnified: The surety has a right to recover from the principal
debtor the amount that he/she has rightfully paid under the contract of
guarantee.
(4 marks)
c. Rights against co-sureties: They are
Right of contribution: Where a debt has been guaranteed by more than one
person, they are called co-sureties. Section 146 provides for a right of
contribution between them. When a surety has paid more than his/her share or
a decree has been passed against the surety for more than his/her share,
he/she has a right of contribution from the other sureties who are equally
bound to pay with him/her.
Where the co-sureties have guaranteed different sums, they are bound under
Section 147 to contribute equally, subject to the limit fixed by their guarantee
and not proportionately to the liability undertaken.
(4 marks)
The word bailment is derived from the French word Bailer, which means to deliver. In
law, bailment is a voluntary change of possession from one person to another. It is
defined as the delivery of goods from one person to another for some purpose upon a
contract. Upon the attainment of the purpose, the goods are returned or disposed off,
according to the directions of the person delivering them.
According to Section 148 of the Contracts Act, the person delivering the goods is called
the bailor and the person to whom the goods are delivered is called the bailee.
Delivery of the possession is not necessary where one person, already in possession of
goods, contracts to hold them as the bailee.
(1 mark)
Features/Characteristics are
Return of goods in specie: Goods are delivered for some purpose and it is agreed
that the specific goods shall be returned. Return of specific goods (in specie) is an
essential characteristic of bailment. Thus, where an equivalent and not the same is
agreed to be returned, there is no bailment.
Deposit: Delivery of goods by one person to another for the use of the former, i.e.,
the bailor
Hire. Goods lent to the bailee for hire, i.e., in return for payment of money
Pawn or pledge: Deposit of goods with another by way of security for money
borrowed
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Del credere agent: A del credere agent is one who, in consideration of an extra
remuneration, called a del credere commission, guarantees the performance
of the contract by the other party.
b. Non-mercantile or non-commercial agents: Some agents in this category are wife,
estate agent, counsels (advocates) and attorneys. The following principles provide
guidelines as regards wife as an agent of her husband.
(8 marks)
Another classification of agents is General and Special. A special agent is a person
appointed to do some particular act or enter into some particular contract. A special
agent, therefore, has only a limited authority to do the specified act. If he does anything
beyond the specified act, he runs the risk of being personally liable since the principal
may not ratify the same.
(2 marks)
The types of meeting are
a. Annual general meeting (AGM) (Sections 166-168): As the name signifies, this is an
annual meeting of a company. The provisions relating to this meeting are:
Every company, whether public or private, having a share capital or not, limited
or unlimited must hold this meeting.
The meeting must be held in each calendar year and not more than 15 months
shall elapse between two meetings. However, the first AGM may be held
within 18 months from the date of its incorporation and if such general meeting
is held within that period, it need not hold any such meeting in the year of its
incorporation or in the following year. The maximum gap between two such
meetings may be extended by three months by taking permission of the
Registrar, who may so allow for any special reason.
At the registered office of the company or at some other place within the
city, town or village in which the registered office is situated. (Section 166
(2)).
(5 marks)
b. Extraordinary Meeting (EGM) Section 169: Clause 47 of Table A (Schedule I)
provides that all general meetings other than AGMs shall be called the EGMs. The
legal provisions as regards such meetings are:
EGM is convened for transacting some special or urgent business that may
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arise in between two AGMs, for instance, change in the objects or shift of
registered office or alteration of capital. All business transacted at such
meetings is called special business. Therefore, every item on the agenda must
be accompanied by an Explanatory Statement.
Directors on requisition
Requisitionists themselves
The Tribunal. The Board of Directors may call a general meeting of the
members at any time by giving not less than 21 days notice. A shorter
notice may, however, be held valid if consent is accorded thereto by
members of the company holding 95 percent or more of the voting rights
(Section 171).
(4 marks)
c. A company has two classes of shares equity shares and preference shares. The
class meetings are held for these different classes of shareholders, as and when
their rights are affected.
(1 mark)
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