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Sikkim Manipal University - MBA - MB0051 – Legal Aspects of Business

Semester: 3 - Assignment Set: 2

Question 1: What are the situations which cannot be referred to arbitration?


Arbitration law is a process that involves the assistance of one or more neutral parties known
as arbitrators. Arbitrators are charged with hearing evidence from numerous involved parties in
a dispute, and their main duty is to issue an award deciding who gets what in order to resolve
the situation. In some instances of arbitration law, an arbitrator may also issue an opinion in
conjunction with the award, which is designed to explain the award and the reasoning that led
to it. Arbitration law and mediation law are two different processes and should not be confused.
The award and the opinion are not capable of being reviewed by a court, and there is no
availability for appeal. The purpose of arbitration law is to serve as a substitution to a trial and
a review of the decision by a trial court.

Subject matter of arbitration:

Any commercial matter including an action in tort if it arises out of or relates to a contract can
be referred to arbitration. However, public policy would not permit matrimonial matters,
criminal proceedings, insolvency matters anti-competition matters or commercial court matters
to be referred to arbitration. Employment contracts also cannot be referred to arbitration but
director - company disputes are abatable (as there is no master servant relationship here)5.
Generally, matters covered by statutory reliefs through statutory tribunals would be non-

Arbitration is an Alternative Dispute Resolution process whereby a person chosen as an

arbitrator settles disputes between parties. Arbitration is similar to a court trial, with several

 The arbitrator makes the decision called an "arbitration award”

 The arbitration does not take place in a courtroom
 The arbitration award is binding. With rare exceptions, there is no right to appeal
 Arbitration is not a matter of public record. It is private and confidential
 There is no court reporter or written transcripts
 Lawyers generally prepare their cases in an extremely limited manner
 The rules of evidence are relaxed so that the parties have a broader scope, more
expanded opportunity to tell their stories to present their cases
 With very few exceptions, it is much less expensive than legal litigation
 An arbitration time frame is substantially less than that of litigation and going to trial
 No jury. The Arbitrator(s) maintain neutrality and conflicts of interests
 Generally, all paperwork and evidence presented are destroyed after the Arbitration
 The arbitration and arbitration award does not have to adhere to Judicial Case precedent
nor formality of traditional court proceedings

 In India, Arbitration is one of the most effective and trusted proceedings in regard to
private dispute settlement are guided by the Arbitration & Conciliation Act, 1996.

Kind of matters cannot be referred for arbitration:

As per general practice, matters involving moral questions or questions of public law cannot be
resolved by arbitration. For instance, the following matters are not referred to arbitration:

Bhupinder Singh Reg. No. 521063004 Page 1 of 9

Sikkim Manipal University - MBA - MB0051 – Legal Aspects of Business

Semester: 3 - Assignment Set: 2

 Matrimonial matters
 Guardianship of a minor or any other person under disability
 Testamentary matters
 Insolvency, proceedings
 Criminal proceedings
 Questions relating to charity or charitable trusts
 Matters relating to anti-trust or competition law
 Dissolution or winding up of a company

Indian Arbitration Act follows the guideline of:

 The Geneva Convention on the Execution of Foreign Arbitral Awards, 1927

 The New York Convention of 1958 on the Recognition and Enforcement of Foreign
Arbitral Awards
 The Geneva Protocol on Arbitration Clauses of 1923

Question 2: What is the role of a Conciliator?



Conciliation is a process in which the parties to a dispute, with the assistance of a neutral third
party (the conciliator), identify the disputed issues, develop options, consider alternatives and
endeavour to reach an agreement.

The conciliator may have an advisory role on the content of the dispute or the outcome of its
resolution, but not a determinative role.

The conciliator may advise on or determine the process of conciliation whereby resolution is
attempted, and may make suggestions for terms of settlement, give expert advice on likely
settlement terms, and may actively encourage the participants to reach an agreement.

In order to understand what Parliament meant by ‘Conciliation’, we have necessarily to refer to

the functions of a ‘Conciliator’ as visualized by Part III of the 1996 Act. It is true, section 62 of
the said Act deals with reference to ‘Conciliation’ by agreement of parties but sec. 89 permits
the Court to refer a dispute for conciliation even where parties do not consent, provided the
Court thinks that the case is one fit for conciliation. This makes no difference as to the meaning
of ‘conciliation’ under sec. 89 because; it says that once a reference is made to a ‘conciliator’,
the 1996 Act would apply. Thus the meaning of ‘conciliation’ as can be gathered from the 1996
Act has to be read into sec. 89 of the Code of Civil Procedure. The 1996 Act is, it may be noted,
based on the UNCITRAL Rules for conciliation.

Role of conciliator:

 The conciliator shall assist the parties in an independent and impartial manner in their
attempt to reach an amicable settlement of their dispute.

Bhupinder Singh Reg. No. 521063004 Page 2 of 9

Sikkim Manipal University - MBA - MB0051 – Legal Aspects of Business

Semester: 3 - Assignment Set: 2

 The conciliator shall be guided by principles of objectivity, fairness and justice, giving
consideration to, among other things, the rights and obligations of the parties, the
usages of the trade concerned and the circumstances surrounding the dispute, including
any previous business practices between the parties.

 The conciliator may conduct the conciliation proceedings in such a manner as he

considers appropriate, taking into account the circumstances of the case, the wishes the
parties may express, including any request by a party that the conciliator hear oral
statements, and the need for a speedy settlement of the dispute.

 The conciliator may, at any stage of the conciliation proceedings, make proposals for a
settlement of the dispute. Such proposals need not be in writing and need not be
accompanied by a statement of the masons therefore.

Conciliators do not:

 Make decisions for disputing parties

 Make judgments about who is right, who is wrong or what the outcome of the dispute
should be.
 Tell people what to do
 Make rulings
 Force parties to participate in the conciliation process.

Question 3: What are the unfair trade practices under the MRTP Act?




The Monopolies and Restrictive Trade Practices Commission has been constituted under Section
5(1) of the MRTP Act, 1969. The Commission is empowered to enquire into Monopolistic or
Restrictive Trade Practices upon a reference from the Central Government or upon its own
knowledge or information. The MRTP Act also provides for appointment of a Director General of
Investigation and Registration for making investigations for the purpose of enquiries by the
MRTP Commission and for maintenance of register of agreements relating to restrictive trade

The MRTP Commission receives complaints both from registered consumer and trade
associations and also from individuals. Complaints regarding Restrictive Trade Practices or
Unfair Trade Practices from an association are required to be referred to the Director General of
Investigation and Registration for conducting preliminary investigation. The Commission can
also order a preliminary investigation by the Director General of Investigation and Registration
when a reference on a restrictive trade practice is received from the Central/State Government,
or when Commission's own knowledge warrants a preliminary investigation. Enquiries are
instituted by the Commission after the Director General of Investigation and Registration
completes preliminary investigation and submits an application to the Commission for an

Bhupinder Singh Reg. No. 521063004 Page 3 of 9

Sikkim Manipal University - MBA - MB0051 – Legal Aspects of Business

Semester: 3 - Assignment Set: 2

Unfair Trade Practices:

An unfair trade practice means a trade practice, which, for the purpose of promoting any sale,
use or supply of any goods or services, adopts unfair method, or unfair or deceptive practice.

1) False Representation:

The practice of making any oral or written statement or representation which:

 Falsely suggests that the goods are of a particular standard quality, quantity, grade,
composition, style or model;
 Falsely suggests that the services are of a particular standard, quantity or grade;
 Falsely suggests any re-built, second-hand renovated, reconditioned or old goods as
new goods;
 Represents that the goods or services have sponsorship, approval, performance,
characteristics, accessories, uses or benefits which they do not have;
 Represents that the seller or the supplier has a sponsorship or approval or affiliation
which he does not have;
 Makes a false or misleading representation concerning the need for, or the usefulness
of, any goods or services;
 Gives any warranty or guarantee of the performance, efficacy or length of life of the
goods, that is not based on an adequate or proper test;
 Makes to the public a representation in the form that purports to be-
• warranty or guarantee of the goods or services,
• a promise to replace, maintain or repair the goods until it has achieved a
specified result,
If such representation is materially misleading or there is no reasonable prospect that
such warranty, guarantee or promise will be fulfilled
 Materially misleads about the prices at which such goods or services are available in the
market; or
 Gives false or misleading facts disparaging the goods, services or trade of another

2) False Offer Of Bargain Price:

Where an advertisement is published in a newspaper or otherwise, whereby goods or

services are offered at a bargain price when in fact there is no intention that the same may
be offered at that price, for a reasonable period or reasonable quantity, it shall amount to
an unfair trade practice.

The bargain price, for this purpose means:

 the price stated in the advertisement in such manner as suggests that it is lesser than
the ordinary price, or
 The price which any person coming across the advertisement would believe to be better
than the price at which such goods are ordinarily sold.

3) Free Gifts Offer And Prize Scheme:

The unfair trade practices under this category are:

Bhupinder Singh Reg. No. 521063004 Page 4 of 9

Sikkim Manipal University - MBA - MB0051 – Legal Aspects of Business

Semester: 3 - Assignment Set: 2

 Offering any gifts, prizes or other items along with the goods when the real intention is
different, or
 Creating impression that something is being offered free along with the goods, when in
fact the price is wholly or partly covered by the price of the article sold, or
 Offering some prizes to the buyers by the conduct of any contest, lottery or game of
chance or skill, with real intention to promote sales or business.

4) Non-Compliance Of Prescribed Standards:

Any sale or supply of goods, for use by consumers, knowing or having reason to believe
that the goods do not comply with the standards prescribed by some competent authority,
in relation to their performance, composition, contents, design, construction, finishing or
packing, as are necessary to prevent or reduce the risk of injury to the person using such
goods, shall amount to an unfair trade practice.

5) Hoarding, Destruction, Etc.:

Any practice that permits the hoarding or destruction of goods, or refusal to sell the goods
or provide any services, with an intention to raise the cost of those or other similar goods
or services, shall be an unfair trade practice.

6) Inquiry Into Unfair Trade Practices:

The Commission may inquire into any unfair trade practice:

 Upon receiving a complaint from any trade association, consumer or a registered
consumer association, or
 Upon reference made to it by the Central Government or State Government
 Upon an application to it by the Director General or
 Upon its own knowledge or information.

Relief Available:

After making an inquiry into the unfair trade practices if the Commission is of the opinion that
the practice is prejudicial to the pubic interest, or to the interest of any consumer it may direct
 The practice shall be discontinued or shall not be repeated;
 The agreement relating thereto shall be void in respect of such unfair trade practice or
shall stand modified.
 Any information, statement or advertisement relating to such unfair trade practice shall
be disclosed, issued or published as may be specified
 The Commission may permit the party to carry on any trade practice to take steps to
ensure that it is no longer prejudicial to the public interest or to the interest of the

However no order shall be made in respect a trade practice which is expressly authorized by
any law in force.
The Commission is empowered to direct publication of corrective advertisement and disclosure
of additional information while passing orders relating to unfair trade practices.

Bhupinder Singh Reg. No. 521063004 Page 5 of 9

Sikkim Manipal University - MBA - MB0051 – Legal Aspects of Business

Semester: 3 - Assignment Set: 2

Question 4: What are essentials of a valid offer?



A proposal is an expression of will or intention to do or not to do something. It is also called an

"offer". It is one of the essential elements of an agreement. It is the very basis of the contract.
It becomes a promise when it accepted. Section 2 (a) of the Contract Act defines the proposal
as "when one person signifies to another his willingness to do or to abstain from doing
anything, with a view to obtaining the assent of that other, to such act or abstinence, he is said
to make a proposal". The person making the proposal is called the proposer or offer or the
promisor. The person to whom the proposal is made is called the offeree or promisee.
For example; Sunil offers to sell his car to Padmaja for Rs. 50000. This is a proposal. Sunil is
the offeror and Padmaja is the offeree.

An offer may be express or implied. An offer which is expressed by words, written or spoken, is
called an express offer. An offer which is expressed by conduct is called an implied offer. An
offer may be positive or negative. It may be in the form of a statement or a question.
for example; Sridhar says to Radhika that he will sell his scooter to her for Rs.20000. This is an
express offer.

The Karnataka State Road Transport Corporation runs omnibuses on various routes to carry
passengers at the scheduled fares. This is an implied offer by KSRTC.

The offer must be made in order to create legal relations otherwise there will be an agreement.
If an offer does not give rise to legal obligations between the parties it is not a valid offer in the
eye of law. In business transactions there is a presumption that the parties propose to make
legal relationships. For example a person invite to another person to diner if the other person
accepts the invitation then it is not any legal agreement between the parties it is social

An offer must be definite and clear. If the terms of an offer are not definite and clear it cannot
be called a valid offer. If such offer is accepted it cannot create a binding contract. An
agreement to agree in future is not a contract because the terms of an agreement are not
clear. A person has two motorbikes. He offers to another person to sell his one bike for a
certain price then it is not a legal and valid offer because there is an ambiguity in the offer that
which motorcycle the person wants to sell. There is a difference between the offer and
invitation of offer. Sometime people offer the invitation for the sale.

Essentials of a valid offer:

 A valid offer must intend to create legal relations. It must not be a casual statement. If the
offer is not intended to create legal relationship, it is not an offer in the eyes of law e.g.
Sunil invites Sridhar to a dinner party and Sridhar accepts the invitation. Sridhar does not
turn up at the dinner party. Sunil cannot sue Sridhar for breach of contract as there was no
intention to create legal obligation. Hence, an offer to perform social, religious or moral
acts without any intention of creating legal relations will not be a valid offer.

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Sikkim Manipal University - MBA - MB0051 – Legal Aspects of Business

Semester: 3 - Assignment Set: 2

 The terms of an offer must be definite, unambiguous and certain. They must not be loose
and vague. A promise to pay an extra Rs. 500 if a particular house proves lucky is too
vague to be enforceable. E.g. Sridhar says to Sunil "I will give you some money if you
marry my daughter". This is not an offer which can be accepted because the amount of
money to be paid is not certain.

 An offer may be made to a definite person or to the general public. When offer is made to
a definite person or to a special class of persons, it is called "specific offer". When an offer
is made to the world at large or public in general, it is called "general offer". A specific offer
can be accepted only by that person to whom it has been made and a general offer can be
accepted by any person. E.g. Sunil promises to give Rs.100 to Sridhar, if he brings back his
missing dog. This is a specific offer and can only be accepted by Sridhar. Sunil issues a
public advertisement to the effect that he would give Rs.100 to anyone who brings back his
missing dog. This is a general offer. Any member of the public can accept this offer by
searching for and bringing back Sunil's missing dog.
 An offer to do or not to do must be made with a view to obtaining the assent of the other
party. Mere enquiry is not an offer.

 An offer should may contain any term or condition. The offeror may prescribe any mode of
acceptance. But he cannot prescribe the form or time of refusal so as to fix a contract on
the acceptor. He cannot say that if the acceptor does not communicate his acceptance
within a specified time, he is deemed to have accepted the offer.

 The offeror is free to lay down any terms any terms and conditions in his offer. If the other
party accepts it, then he has to abide by all the terms and conditions of the offer. It is
immaterial whether the terms and conditions were harsh or ridiculous. The special terms or
conditions in an offer must be brought to the notice of the offeree at the time of making a

 An offer is effective only when it is communicated to the offeree. Communication is

necessary whether the offer is general or specific. The offeror may communicate the offer
by choosing any available means such as a word of mouth, mail, telegram, messenger, a
written document, or even signs and gestures. Communication may also be implied by his
conduct. A person can accept the offer only when he knows about it. If he does not know,
he cannot accept it. An acceptance of an offer, in ignorance of the offer, is no acceptance
at all.

It should be noted that an invitation to offer is not an offer. The following are only invitations to
offer but not actual offers:

 Invitations made by a trade for the sale of goods.

 A price list of goods for sale.
 Quotations of lowest prices.
 An advertisement to sell goods by auction.
 An advertisement inviting tenders.
 Display of goods with price-tags attached.
 Railway time-table.
 Prospectus issued by a company.
 Loud speaker announcements.

Bhupinder Singh Reg. No. 521063004 Page 7 of 9

Sikkim Manipal University - MBA - MB0051 – Legal Aspects of Business

Semester: 3 - Assignment Set: 2

Question 5: Find out a case where a person appealed under the Consumer protection
Act and won.


The Consumer Protection Act was born in 1986. It is described as a unique legislation of its
kind ever enacted in India to offer protection to the consumers. The Act is claimed to have
been designed after an in-depth study of consumer protection laws and arrangements in UK,
the USA, Australia and New Zealand. The main objective of this Act is to provide better
protection to the consumers. Unlike other laws, which are punitive or preventive in nature the
provisions of this Act are compensatory in nature. The Act intends to provide simple, speedy
and inexpensive re-dressal to the consumer’s grievances.

Question 6: What does the Information Technology Act enable?


Information Technology Act:

In May 2000, at the height of the dot-com boom, India enacted the IT Act and became part of
a select group of countries to have put in place cyber laws. In all these years, despite the
growing crime rate in the cyber world, only less than 25 cases have been registered under the
IT Act 2000 and no final verdict has been passed in any of these cases as they are now pending
with various courts in the country.

Although the law came into operation on October 17, 2000, it still has an element of mystery
around it. Not only from the perception of the common man, but also from the perception of
lawyers, law enforcing agencies and even the judiciary.

The prime reason for this is the fact that the IT Act is a set of technical laws. Another major
hurdle is the reluctance on the part of companies to report the instances of cyber-crimes, as
they don't want to get negative publicity or worse get entangled in legal proceedings. A major
hurdle in cracking down on the perpetrators of cyber-crimes such as hacking is the fact that
most of them are not in India. The IT Act does give extra-territorial jurisdiction to law
enforcement agencies, but such powers are largely inefficient. This is because India does not
have reciprocity and extradition treaties with a large number of countries.

The Indian IT Act also needs to evolve with the rapidly changing technology environment that
breeds new forms of crimes and criminals. We are now beginning to see new categories and
varieties of cyber-crimes, which have not been addressed in the IT Act. This includes cyber
stalking, cyber nuisance, cyber harassment, cyber defamation and the like. Though Section 67
of the Information Technology Act, 2000 provides for punishment to whoever transmits or
publishes or causes to be published or transmitted, any material which is obscene in electronic
form with imprisonment for a term which may extend to two years and with fine which may
extend to twenty five thousand rupees on first convection and in the event of second may
extend to five years and also with fine which may extend to fifty thousand rupees, it does not

Bhupinder Singh Reg. No. 521063004 Page 8 of 9

Sikkim Manipal University - MBA - MB0051 – Legal Aspects of Business

Semester: 3 - Assignment Set: 2

expressly talk of cyber defamation. The above provision chiefly aim at curbing the increasing
number of child pornography cases and does not encompass other crimes which could have
been expressly brought within its ambit such as cyber defamation.

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