by Aggarwals Associates | Jun 28, 2021 | General
The term Res Judicata has been derived from Latin Maxim, which stand for ‘the thing has been judged.’ The meaning of Res Judicata is that the issue before the court has already been adjudicated by another court between the same parties. In that scenario, the court will dismiss the case before it as being useless. The concept of Res Judicata is applicable in both civil as well as criminal proceedings. Once a final judgment has been announced in a lawsuit, the judge would apply the Res Judicata doctrine if the identical lawsuit is filed before him. Therefore, the same case cannot be taken up again either in same or in different court in India.
Meaning of Res Judicata:
In literally terms ‘Res’ mean subject matter and ‘Judicata’ means adjudged and together it is means a matter adjudged. In simplest terms, the thing has been judged by the court. If issue before a court has already been decided by another court between the same parties then court will dismiss it as it barred by the doctrine of Res Judicata. It applies to both civil and criminal legal systems. Section 11 of the Civil Procedure Code embodies the doctrine of Res Judicata.
History:
The Term Res Judicata is of Roman origin and based on three maxims first one is ‘Nemo debet bis vexari pro una et eadem causa’ means no man should be vexed for the same cause. Second is ‘Interest reipublicae ut sit finis litium’ means it is in the interest of state that there should be an end to litigation. The last one is ‘Res Judicata pro veritate acciputor’ which means that issue once decided attains finality and no further case can be filed to decide the similar issue. This concept has evolved from the English Common Law System. From the common law it got included in the Code of Civil Procedure, 1908 and laterally adopted as a whole by Indian legal system. It was also known as ‘Purva Nyaya’ under ancient Hindu Law.
Applicability:
The doctrine of Res Judicata is a cardinal notion based on public policy and private regards. It is applicable to the matters such as civil suits, execution proceedings, arbitration proceedings, taxation matters, writ petitions, administrative orders, interim orders and criminal proceedings etc.
Conditions of Res Judicata:
Before applying the doctrine of Res Judicata, there are some pre-requisite conditions which need to be fulfilled. These are enumerated below:-
- There must be final judgment.
- That judgment must be based on merits.
- The claim must be same as in the previous suit.
- The parties to the suit must be same as in the previous one.
- The suit must be filed under same name before the court having similar jurisdiction.
It is notable that earlier decision of the court is wrong or right is not relevant in application of Res Judicata.
Res Judicata and Res Sub-Judice:
The doctrine of Res Judicata puts a bar on matter which has already been adjudicated whereas Res Sub-Judice means bar on fresh matter because earlier matter on the same facts with same title is pending between the same parties before the court. The term sub-judice indicates the idea that matter is being considered by court of law. In a case where two or more cases are filed by same parties on same subject matter which is already pending then the competent court has the power to stay proceedings.
Constructive Res Judicata:
The scope of Res Judicata is also applicable on a suit where a party could have raised a plea against another party in a former suit and failed to do so and has filed a suit later raising such plea. This concept is called constructive Res Judicata. The rule of constructive Res Judicata assists in raising the bar. In State of U.P v. Nawab Hussain 1977 AIR 1680 respondent was an Inspector and dismissed from the service by D.I.G. He challenged the order of dismissal by way of filing writ petition in the High Court. He took the plea that he did not get a reasonable opportunity of being heard before passing the order. However, the same was negatived and the petition stands dismissed. He filed a fresh petition on the ground that he was appointed by the I.G.P. and D.I.G. has no power to dismiss him. The State contended that the additional ground taken by him is barred by Res-Judicata but High Court allowed his petition. Subsequently State of UP moved to the Supreme Court whereby Hon’ble Bench of Court held that respondent was barred by constructive Res-Judicata as court said that the plea was within his knowledge and could be taken earlier.
Res Judicata in criminal proceedings:
This doctrine is also applicable in criminal cases because of its universe application. In Bhagat Ram v. State of Rajasthan AIR 1972 SC 1502 SC held that once person is acquitted or convicted by the competent court of law he cannot once again be tried for same offences as it is barred by the doctrine of Res Judicata.
Res Judicata in interim orders:
The doctrine of Res-Judicata is applied in the different stages of the pending suit. In Ajay Mohan v. H.N. Rai AIR 2008 SC 804 SC held that if there is interim order decided by the court during the pendency of the suit then it will operate as Res-Judicata in all the subsequent suits. In that circumstance, the aggrieved party can only avail the remedy of filing an appeal against the interim order of lower court before the higher court.
Conclusion:
Doctrine of Res Judicata is considered as the backbone of the Code of Civil Procedure which restrains either party to move the clock back during the pendency of proceedings before the court. The basic idea behind the incorporation of this doctrine is to decrease the number of pending cases before the court of law. This doctrine has a very wide scope as it covers the areas of law even outside the ambit of the Civil Procedure Code.
-Kiranpreet Kaur
Associate at Aggarwals & Associates S.A.S. Nagar, Mohali
by Aggarwals Associates | Jun 15, 2021 | General
A foreign national or entity can start a business in India through various business forms. But it is very important to choose the right kind of business form which is suitable for its purposes and takes care of liability and tax-related issues. Foreign Direct Investment is 100% allowed in many activities and sectors in India. There are two options available for foreign investors to start a business in India, the first is as an Indian Company, and the second is as a foreign company. A foreign company can start a business by incorporating a company under The Companies Act, 2013.
What are the options?
The first option to commence the operation of the business in India by the foreign investors is to incorporate an Indian Company. This can be of the following types:
- Joint Venture
- Wholly owned Subsidiary
A foreign investor can start a joint venture with an Indian Company where 100% FDI is not permitted. A wholly-owned Subsidiary is an option where 100% FDI is permitted. A wholly-owned Subsidiary is mostly opted by the foreign national or entities as it is a fast and cost-consuming process.
The second option is a foreign company. A foreign company can operate its business in India through the following means:-
- Liaison Office
- Project Office
- Branch Office
These offices can operate permitted activities in India. This is a time-consuming and costly process as it requires the prior approval of RBI.
Liaison Office: Liaison officer acts as a communication channel between the head office and entities in India. It does not undertake any commercial activity in India. Liaison office can perform limited functions including a collection of information about possible market opportunities, to provide information about the company and its products, import/export, and technical and financial collaboration between parent company and entities in India.
Project Office: Project office is an option for foreign companies planning to execute their project in India. General permission has been granted by the RBI to set up a temporary project office in India. Such an office carries the activities related to the execution of the concerned project.
Branch Office: Foreign companies engaged in manufacturing and trading activities can opt for the branch office. They can operate the branch office for purposes including import/export of goods, professional or consultancy services, research work, promoting financial/technical collaboration between the parent company and Indian company, representing the parent company, acting as buying/selling agent in India, IT services and development of software in India, technical support to the products supplied by the parent company in India, and foreign airlines and shipping company.
The branch office is not allowed to carry manufacturing activities on its own in India but permitted to subcontract these to an Indian manufacturer. RBI approval is required to set up a branch office.
In what business form subsidiary can be started in India?
Foreign Direct Investment is not allowed in the case of Proprietorship, Partnership Firm, and One Person Company. One of the top preferences of foreign investors for various business activities is Wholly-Owned Private Limited Subsidiary. Large multinational companies generally opt for this form of Subsidiary. Otherwise, the Subsidiary can take the form of a private limited company or public limited company. Under the new Company Act, Subsidiary can also be registered in India as a Limited Liability Partnership, but it requires prior approval of RBI.
Procedure for registration of Wholly Owned Private Limited Subsidiary:
DSC and DIN:-
The first step for registering a Subsidiary in India is to apply for DSC (Digital Signature Certificate) and DIN (Director’s Identification Number) of the directors. The following documents are required for obtaining the DSC and DIN:-
- Identity proof for e.g. PAN card for Indian nationals and copy of Passport for foreign nationals.
- Copy of driving license, bank statement, or any utility bill not older than two months.
- Residence permits of foreign nationals, if residing in India.
- Passport size photographs.
Approval of name:-
It is one of the important steps to set a unique and acceptable name of the company so being incorporated. The name should not be identical to existing identities. It must be in consonance with the object of the company.
Incorporation application:-
This is being a final step requires to files the Memorandum and Articles of Association of the company digitally along with various other documents duly executed by the proposed directors and shareholders.
List of documents required for incorporation:-
- Subscriber sheet of Articles of Association.
- Subscriber sheet of Memorandum of Association.
- Declaration by Director in form DIR2.
- Declaration of Director in form INC9.
Generally, the incorporation documents are required to be self-attested by Indian Nationals. In the case of Foreign National, if the documents are signed outside India, then the same are required to be notarized by the Public Notary of residence country and consularized or apostilled by the competent authority, as the case may be.
If documents are signed in India then a copy of Visa and stamped Passport proving his/her presence in India at the time of signing is required.
If the subscriber is a foreign entity, then the incorporation documents should be signed by the representative of the foreign country. An authorization letter duly stating the name of the authorized person and the number of the shares subscribed should be notarized, consularized or apostilled, as the case may be in the home country of Subscriber Company.
On approval of incorporation application, the Registrar would issue a Certificate of Incorporation with Corporate Identification Certificate (CIN), PAN, and TAN of the company.
Conclusion:
India presents a lucrative environment for various big-shot companies to start a business. Registration of Foreign Subsidiaries in Indian is an easy process that helps foreign investors to achieve their goals. The ease in India’s latest FDI policy attracts investors around the globe to start a business in the amazing diversity of the Indian market.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
by Aggarwals Associates | Jun 3, 2021 | General
Muslim law or Islamic law is known to be originated from the divine and not like other laws that are passed by the modern system of laws because Muslims believe that there is only one God, Allah. The traditional Islamic law is well known as Sharia. In the case of Narantakath v.Prakkal(1922) ILR 45 Mad 986, it was observed that there are two basic beliefs of Muslims, first, the existence of God, and second was the belief in the truth of Mohammed’s mission.
WHAT ARE THE SOURCES OF MUSLIM LAW?
The primary sources of Muslim Law are the Quran, the Sunna, the Ijma, and the Qiyas. And judicial decisions, customs, and legislation are secondary sources.
HOLY QURAN
The holy Quran is the holy book of Islam and it is believed that it contains the direct words of God. It is like a Constitution for the Muslims and it contains all the principles used in the personal laws including marriage, divorce, succession, etc. The book is divided into chapters.
SUNNAH
The word basically means ‘path’ as the Muslims are divided into two sects; the first is Shia Muslims and the other is Sunni Muslims. So, basically, Sunna is followed by the Shia Muslims in their day-to-day lives to get the answers to the questions that they face.
IJMA
Ijma is a concept of law made by the consensus of all Islamic jurists or other persons of knowledge and skill. In simple words, when the Quran and other traditional sources were not able to provide any rule of law for a particular problem, the jurists unanimously gave their decision and this was referred to as Ijma. There are two types of Ijma.
1- Ijma al-ummah(community consensus).
2- Ijma al-aimmah(religious authorities consensus).
QIYAS
Qiyas means analogical reasoning. The term in the literal sense is known for measuring or ascertaining the length, quality, and weight of something. There are no clear authorities of Qiyas in the Quran.
SECONDARY SOURCES
1- JUDICIAL DECISIONS: – Judicial pronouncements have played a prominent role in the development of Muslim Law. The case titled as Shah Bano Begum vs. Md. Ahmed Khan was the first landmark judgement governing the Muslim Personal Laws, wherein the apex court held that Muslim women have a right to maintenance under Section 125 of the Cr.P.C. even if the Quran or their personal laws have provided for an alternate remedy.
2- CUSTOMS: – The term custom connotes the practices that are being followed by some sect of society for a long period of time. There is an end of number of customs that are being followed by the Muslim people, thus, some of them become a source of Muslim Law.
3- LEGISLATION: – There are numerous legations enacted by the Parliament relating to Muslim Law. The Shariat Act, 1937 was the first piece of legislation dealing with marriage, divorce, and succession etc. The Dissolution of Muslim Marriage Act, 1939 is another important legislation, which gives the right to a Muslim Woman to get a divorce on various grounds postulated under the Act. Recently, the Govt. has passed the Muslim Women (Protection of Rights on Marriage) Act, 2019 commonly known as the Triple Talaq Act, which declares the practice of triple talaq as void and makes it an offence as well.
MUSLIM NIKAH
In Islam, marriage is a legal contract between a man and a woman. Both the groom and the bride give consent to the marriage of their own wills. In Islam, Mahr is the obligation in the form of money or possessions paid by the groom, to the bride at the time of Islamic marriage.
GENERAL ESSENTIALS OF MUSLIM NIKAH:-
1 – Parties must have the capacity to marry.
2- Proposal and acceptance.
3- Free consent of both parties.
4- A consideration.
5- No legal impediment.
6- Sufficient witnesses.
MAHR
Mahr is also known as Dower, and it is classified into two categories:-
1 – Specified Dower (Mahr-i-Musamma): As per this category, the amount of dower is specified in the marriage contract. It is further divided into two sub-categories i.e. Prompt Dower and Deferred Dower. Prompt dower is paid immediately after the performance of a marriage. On the flip side, the deferred dower becomes payable on dissolution of marriage.
2- Proper Dower (Mahr-i-Misl): Under this category, the amount of dower is not specified in the marriage contract. Its amount is decided according to the amount of dower paid to the female members of the father’s family.
WHAT SHOULD BE THE AMOUNT OF MAHR?
Mahr should be in accordance with the financial position of the husband.
WHAT IF ONE CANNOT AFFORD MAHR?
Even if a husband cannot afford the amount in Mahr or does not have even a small material thing to gift, in that case also, Mahr can be given in some other form.
CLASSIFICATION OF MARRIAGE:-
1- Valid marriage (Sahih Nikah).
2- Void marriage (Batil Nikah).
3- Irregular marriage (Fasid Nikah).
4- Muta marriage.
VALID MARRIAGE (SAHIH NIKAH)
When all the legal requirements are fulfilled and there are no prohibitions affecting the parties, then the marriage is correct. The prohibitions can be permanent and temporary, in case of permanent the marriage will be void and in case, it is temporary then the marriage is irregular.
VOID MARRIAGE (BATIL NIKAH)
The marriage being void creates no rights or obligations, and the children born out of such marriage are illegitimate. A marriage with the wife of another or a divorced wife during the iddat period is also void.
IRREGULAR MARRIAGE (FASIL NIKAH)
Due to lack of some formality, a marriage becomes irregular; however, this irregularity is not permanent in nature and can be removed.
MUTA MARRIAGE
Muta marriage is a temporary agreement for a limited time period, upon which both the parties agreed. There is no minimum or maximum time limit; it can be for a day, a month, or years. This type of marriage is seen as prostitution by the Sunni Muslims and therefore it is not approved by Sunnis. But it is considered legitimate by the Shia sect. However, India constitutes 90 percent of the Shia population.
A Muslim girl who is less than 18 years old but has attained puberty is free to marry anyone as per the Muslim Personal Law.
NIKAH-NAMA IS A LEGAL DOCUMENT THAT CONTAINS:
1- Full name of the parties
2- Place of marriage.
3- Age.
4- Address details of the parties.
5- Full name of the parents of the parties.
6- Civil condition of the bridegroom at the time of marriage whether- Unmarried, divorced, married, and if so, how many wives are alive.
7- Signature or thumb impression of the parties/ guardians/ witnesses/ officiating priest.
8- Amount of dower fixed.
9- Manner of payment of dower.
10- Name of witnesses along with parentage and residential address.
-Urvashi Singh
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
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