INTERMEDIATE EXAMINATION

Transcription

1 Group-I : Paper-6 : Commercial and Industrial Law and Auditing [ June 2012 ] 61 INTERMEDIATE EXAMINATION (REVISED SYLLABUS ) GROUP - I Paper-6 : COMMERCIAL AND INDUSTRIAL LAW AND AUDITING SECTION - I (Commercial and Industrial Law) Q. 1. Comment on the following : (a) S induced R to buy his motorcycle saying that it was in a very good condition. After taking the motorcycle, R complained that there were many defects in the motorcycle. S proposed to get it repaired and promised to pay 40% cost of repairs After a few days, the motorcycle did not work at all. Now R wants to rescind the contract. (b) P contracts with Q for a fixed price to construct a house for Q within a stipulated time. Q would supply the necessary material to be used in the construction. R guarantees P s performance of the contract. Q does not supply the timber as per the agreement. Is R discharged from his liability? (c) X agreed to become an assistant for 5 years to Y who was a Lawyer practicing at Delhi. It was also agreed that during the term of agreement X will not practise on his own account in Delhi. At the end of one year, X left the assistantship of Y and began to practise on his own account. Referring to the provisions of the Indian Contract Act, 1872, decide whether X could be restrained from doing so? (d) F sells the goodwill of his shop to G for ` 6,00,000 and promises not to carry on such business forever and anywhere in India. Comment on the validity of the contract. (e) X lends a sum of ` 10,000 to Y, on the security of fiv e shares of a Limited Company on 1 st April On 15 th September, 2011, the company issues bonus shares. Y returns the loan amount of ` 10,000 with interest but X returns only five shares which were pledged and refuses to give the bonus shares. Advise Y in the light of the provisions of the Indian Contract Act, (f) P rents out his house situated at Kolkata to Q for a rent of ` 5000/- per month. A sum of ` 2 lac, the house tax payable in arrears, his house is advertised for sale by the Municipal Corporation. Q pays the Corporation, the sum due from P to avoid legal consequences. Referring to the provisions of Indian Contract Act, 1872, decide Q is entitled to get reimbursement of the said amount from P. (g) F, B and G jointly borrowed ` 500,000 from W. The whole amount was repaid to W by B. Decide in the light of the Indian Contract Act, 1872 whether : (i) B can recover the contribution from F and G, (ii) Legal representatives of F are liable in case of death of F, (iii) B can recover the contribution from the assets, in case G becomes insolvent. (h) P contracted with Q to supply him (Q) 500 tons of ` 6,000 per ton, to be delivered at a specified time. Thereafter, P contracts with R for the purchase of 500 tons of ` 5500

2 62 [ June 2012 ] Revisionary Test Paper (Revised Syllabus-2008) per ton, and at the same time told R that he did so for the purpose of performing his contract entered into with Q. R failed to perform his contract in due course. Consequently, P could not procure any iron-steel and Q rescinded the contract. What would be the amount of damages which P could claim from R in the circumstances? Explain with reference to the provisions of the Indian Contract, (i) M promises to gift his son N ` 1 lac if N clears Joint Entrance Exam in first attempt. N clears the exam in the first attempt, but M fails to pay ` 1 lac as promised. N files a suit for recovery of the amount. State N s position. (j) Z & Co. through a newspaper advertisement announced a season end sale of woolen garments and exhibited the articles in their showroom with the original and the reduced prices marked on them. H, who had read the advertisement, picks up a woolen sweater marked ` 500/- as original price and ` 200/- as reduced price. But when H offers ` 200/- at the counter, the salesman refuses to accept the amount and hand over the article to H. Discuss the rights of H against Z & Co. Answers 1. (a) The aggrieved party, in case of misrepresentation by the other party, can avoid or rescind the contract [Section 19, Indian Contract Act, 1872]. The aggrieved party loses the right to rescind the contract if he, after becoming aware of the misrepresentation, takes a benefit under the contract or in some way affirms it. Accordingly in the given case R could not rescind the contract, as his acceptance to the offer of S to bear 40% of the cost of repairs impliedly amount to final acceptance of the sale [Long v. Lloyd, (1958)]. (b) According to Section 134 of the Indian Contract Act, 1872, the surety is discharged by any contract between the creditor and the principal debtor, by which the principal debtor is released or by any act or omission for the creditor, the legal consequence of which is the discharge of the principal debtor. In the given case the Q omits to supply the timber. Hence R is discharged from his liability. (c) An agreement in restraint of trade/business/profession is void under Section 27 of the Indian Contract Act, But an agreement of service by which a person binds himself during the term of the agreement not to take service with anyone else directly or indirectly to promote any business in direct competition with that of his employer is not in restraint of trade. However in the given case X cannot be restrained by an injunction from doing so. (d) As per Section 27 of the Indian Contract Act, 1872 an agreement in restraint of trade is void. However, a buyer can put such a condition on the seller of goodwill, not to carry on same business. However, the conditions must be reasonable regarding the duration and the place of the business. Hence the agreement is void. (e) This is based on the provisions of Section 163(4) of the Indian Contract Act,1872. As per the section, in the absence of any contract to the contrary, the bailee is bound to deliver to the bailor, any increase or profit which may have accrued from the goods bailed. Applying the provisions to the given case, the bonus shares are an increase on the shares pledged by Y to X. So X is liable to return the shares along with the bonus shares and hence B the bailor, is entitled to them also (Motilal v Bai Mani). (f) As per provisions of Section 69 of the Indian Contract Act,1872, Q is entitled to recover from P the amount paid to Municipal Corporation because of the following reasons : There is a contract between P and Q, viz. quasi contracts. P is bound to to make payment of house tax to Municipal corporation. Q is interested in such payment Q himself is not liable for such payment.

3 Group-I : Paper-6 : Commercial and Industrial Law and Auditing [ June 2012 ] 63 (g) Section 42 of the Indian Contract Act, 1872 requires that when two or more persons have made a joint promise, then, unless a contrary intention appears by the contract, all such persons jointly must fulfill the promise. In the event of the death of any of them, his representative jointly with the survivors and in case of the death of all promisees, the representatives of all jointly must fulfill the promise. Section 43 allows the promisee to seek performance from any of the joint promisors. The liability of the joint promisors has thus been made not only joint but joint and several. Section 43 provides that in the absence of express agreement to the contrary, the promisee may compel any one or more of the joint promisors to perform the whole of the promise. Section 43 deals with the contribution among joint promisors. The promisors, may compel every joint promisors to contribute equally to the performance of the promise (unless a contrary intention appears from the contracts). If any one of the joint promisors makes default in such contribution the remaining joint promisors must bear the loss arising from such default in equal shares. As per the provisions of above sections, (i) B can recover the contribution from F and G because F, B, G are joint promisors. (ii) Legal representative of F are liable to pay the contribution to B. However, a legal representative is liable only to the extent of property of the deceased received by him. (iii) B also can recover the contribution from G s assets. (h) This is based on the provisions of the Indian Contract Act, 1872 as contained in Section 73. Section 73 provides that when a contract has been broken the party who suffers by such breach is entitled to receive from the party who has broken the contract compensation for any loss or damage caused to him thereby which naturally arose in the usual course of things from such breach or which the parties knew when they made the contract to be likely to result from the breach of it. The leading case in this point is Hadley v Baxendale. In Hadley vs. Baxendale it was decided that if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. In the instant case P had intimated to R that he was procuring iron steel from him for the purpose of performing his contract with Q Thus, R had the knowledge of the special circumstance. Therefore, P is entitled to claim from R ` 2,50,000 (difference between the procuring price of iron steel and contracted selling price to Q ) being the amount of profit P would have made by the performance of his contract with Q. If P had not told R of Q s contract then the amount of damages would have been the difference between the contract price and the market price on the day of default. (i) As per Section 10 of the Indian Contract Act, 1872, there is no contract between father and son since there is no intention to create legal relations, as it is a domestic or social agreement. As such N cannot sue his father for recovery of ` 1 lac as there is no contract between his father and him. (j) Price quotations and price tags do not amount to an offer but are only an invitation to an offer. Therefore, H s picking up the woolen sweater with price tag of ` 200/- as reduced price amounts to an offer by H to purchase the same at that price. It remains to be accepted by the seller- the salesman of Z & Co. to result in a concluded contract. The sales man has every right to accept or refuse the offer. Thus H shall have no remedies.

4 64 [ June 2012 ] Revisionary Test Paper (Revised Syllabus-2008) Q. 2. (a) Explain the general rules of relating to Acceptance under the Indian Contract Act, (b) What is the status of a finder of goods under the Indian Contract Act, 1872? What are his rights? (c) Discuss the distinction between wagering agreement and contingent contract. (d) (i) Is there presumption of undue influence in relationship of husband and wife? (ii) Does threat to commit suicide amount to coercion? (e) Discuss the various modes of creating an agency. (f) Explain the rights of a surety. Answer 2. (a) Following are the general rules regarding acceptance under the Indian Contract Act, 1872: (i) Acceptance must be absolute and unqualified [Section 7(1)]. (ii) Acceptance must be in the prescribed manner. If the offer is not accepted in the prescribed manner, then the offeror may reject the acceptance within a reasonable time. (iii) Acceptance must be communicated to the offeror. If acceptance is communicated to the person, other than the offeror, it will not create any legal relationship. (iv) Acceptance must be given by the party to whom the offer is made. (v) Acceptance must be given within the prescribed time or within a reasonable time. (vi) Acceptance cannot be given before communication of an offer. (vii) Acceptance must be made before the offer lapses or is withdrawn. (viii) Acceptance must show intention to fulfill the promise. (ix) Acceptance can not be presumed from silence. (x) Doing of desired act amounts to acceptance. Answer 2. (b) A person, who finds goods belonging to another and takes them into his custody is subject to the same responsibility as a bailee. He is bound to take as much care of the goods as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value. He must also take all necessary measures to trace its owner. If he does not, he will be guilty of wrongful conversion of the property. Till the owner is found out, the property in goods will vest with the finder and he can retain the goods as his own against the whole world (except the owner, of course). A finder of goods has the following rights under the Indian Contract Act, Right of lien : The finder of goods has a right of lien over the goods for his expenses. As such he can retain the goods against the owner until he receives compensation for trouble and expenses incurred in preserving the goods and finding out the owner. But he has no right to sue the owner for any such compensation (Section 168). 2. Right to sue for reward : The finder can sue for any specific reward which the owner has offered for the return of the goods. He may also retain the goods until he receives the reward. (Section 168) 3. Right or resale : The finder has a right to sell the goods in the following cases: (i) where the goods found is in danger of perishing; (ii) where the owner cannot, with reasonable diligence, be found out; (iii) where the owner is found out, but he refuses to pay the lawful charges of the finder; and (iv) where the lawful charges of the finder, in respect of the goods found, amount to 2/3rd of its value.

5 Group-I : Paper-6 : Commercial and Industrial Law and Auditing [ June 2012 ] 65 Answer 2. (c) Wagering Agreement (i) The term wagering agreement is not defined u/s 30 or any other section of the Indian Contract Act, (ii) A wagering agreement is a promise to give money or money s worth upon the determination of uncertain event. (iii) Uncertain event is the sole determining factor of agreement. (iv) The agreement is void. (v) The parties to agreement have no interest (other than their betting stakes) in the outcome of the uncertain event. (vi) A wagering agreement is essentially of contingent nature. Contingent Contract The term contingent contract is defined u/s 31 of the Indian Contract Act, A contingent contract is a contract to do or not to do something if some event collateral to such contract does or does not happen. The event is only collateral in case of contingent contract. The contract is valid. The parties have real interest in outcome of uncertain event. A contingent contract may not be of wagering nature. Answer 2. (d) (i) As per Section 16 of the Indian Contract Act, 1872 undue influence cannot be presumed in husband wife relationship unless the wife is a pardanashin woman (Howes v. Bishop, 1909, 2KB 390). The burden of proving pardanashin rests on the wife. (ii) As per Section 15 of Indian Contract Act, committing or threatening to commit any act forbidden by Indian Penal Code is coercion. As such threat to commit suicide amounts to coercion as it is forbidden by the Code. Answer 2. (e) Agency may be created in the following ways: 1. By express agreement either oral or in writing. (Sec.187) 2. By implied agreement arising out of conduct, situation or relationship of parties. (Sec.187) Implied agency are of three types- (i) Agency by Estoppel-(Sec 237) When a person by his conduct or statements creates a situation whereby a certain person is believed to be his agent, he is estopped from denying the fact subsequently. (ii) Agency by holding out An affirmative conduct on part of principal is necessary to create an agency by holding out. (iii) Agency of necessity (Sec 189)In this case there is no express or implied contract between the parties involved, but one is forced to act on behalf of another because of the circumstances. 3. By ratification (Sec ) When an agent acts without the knowledge of his principal or exceeds its authority, the principal, if he so desires, ratify the act of the agent. Such ratification may be express or implied.

6 66 [ June 2012 ] Revisionary Test Paper (Revised Syllabus-2008) Answer 2. (f) A surety has right against : 1. The creditor : (a) Before payment of guaranteed debt may require the creditor sue the principal debtor. However he has to bear the expenses arising therefrom. (b) Right to set-off or counter claim that debtor has against creditor. (c) On payment of guaranteed debt, right to benefit of creditor s securities. In fact he steps into the shoes of creditor. 2. The debtor : (a) Right to be relieved of his liability before payment has been made. (b) Right to indemnity. 3. The co-sureties : (a) In absence of any contract to the contrary, the co-sureties are liable to contribute equally. (b) When sureties are bound by different sums they have to contribute equally subject to maximum sum guaranteed. (c) Release by creditor of one of the sureties, does not release him of the responsibility towards cosureties. Q. 3. Comment on the following : (a) Mr. X was shopping in a self-service Super market. He picked up a bottle of cold drink from a shelf. While he was examining the bottle, it exploded in his hand and injured him. He files a suit for damages against the owner of the market on the ground of breach of condition. Decide, under the Sale of Goods Act, 1930, whether Mr. X would succeed in his claim? (b) B buys goods from A on payment but leaves the goods in the possession of A. A then pledges the goods to C who has no notice of the sale to B. State whether the pledge is valid and whether C can enforce it. Decide with reference to the provisions of the Sale of Goods Act, (c) P purchased from Q 5000 tins of canned fruit to be packed in cases, each containing 50 tins but Q supplied cases containing 25 tins. Does P have right to rejects the goods? (d) W contracted to erect machinery on V s premises on the condition that the price shall be paid on completion of work. During the progress of work the premises and machinery were destroyed by an accidental fire. Referring to the provisions of the Sale of Goods Act, 1930, decide whether the parties are bound to perform their promises and can W recover the price of the work actually done? Answer 3. (a) This is based on Section 16(2) of the Sale of Goods Act, 1930, which states that where goods are bought by description from a seller who deals in goods of that description (whether he is the manufacturer or producer or not), there is an implied condition that the goods shall be of merchandable quality. Though the term merchandable quality is not defined in the Act, it means that in the present case, the bottle must be properly sealed. In other words, if the goods are purchased for self-use, they should be reasonably fit for the purpose for which it is being used. In the instant case, on an examination of the bottle of cold drink, it exploded and injured the buyer. Applying the provision of Section 16(2), Mr. X would succeed in claim for damages from the owner of the shop.

7 Group-I : Paper-6 : Commercial and Industrial Law and Auditing [ June 2012 ] 67 Answer 3. (b) This is based on the provisions of Section 30 (1) of the Sale of Goods Act, 1930 which provides an exception to the general rule that no one can give a better title than he himself possesses. As per the provisions of the section, if a person has sold goods but continues to be in possession of them or of the documents of title to them, he may pledge them to a third person and if such person obtains them in good faith without notice of the previous sale, he would have good title to them. Accordingly,C, the pledgee who obtains the goods in good faith from A without notice of the previous sale, gets a good title. Thus the pledge is valid. Answer 3. (c) This is based on the provisions of Section 15 of the Sale of Goods Act, P is entitled to reject the goods because the goods were not packed according to the description. It is to be noted that if the goods do not correspond with the description but such goods are fit for buyers purpose, even then the buyer may reject the goods and the seller cannot take defense by saying that the goods will serve buyer s purpose. Answer 3. (d) Section 8 of the Sale of Goods Act, 1930 states that where there is an agreement to sell specific goods and subsequently the goods without the fault of seller or buyer perish before the risk passes to the buyer, the agreement becomes void. In the given case the premises and machinery get destroyed because of accidental fire before the risk passes to the buyer and therefore both parties were excused from further performance. W having contracted for an entire work for a specific price to be paid on completion of work, could not recover any price for the work actually done. Q. 4. (a) Point out the differences between conditions and warranties under the Sale of Goods Act, (b) What do you understand by the term delivery in relation to the Sale of Goods Act, 1930? (c) Nemo Dat Quod Non Habet No one can give a better title than he himself has. State the exceptions to the rule. (d) State difference between lien and stoppage in transit. Answer 4. (a) The points of differences are as follows : Condition (i) A condition is a stipulation which is essential to the main purpose of the contract. (ii) The aggrieved party can repudiate the contract of sale in case there is a breach of a condition. (iii) A breach of condition may be treated as a breach of a warranty. This would happen where the aggrieved party is contended with damages only. Warranty A Warranty is a stipulation which is collateral to the main purpose of the contract. The aggrieved party can claim damages only in case of breach of a warranty. A breach of a warranty, can not be treated as a breach of a condition. Answer 4. (b) Delivery is defined under the act as a voluntary transfer of possession from one person to another. (Sec.(2))As per Section 33, delivery of goods sold may be effected by doing anything which parties agree to be treated as delivery. Thus delivery of goods may be : (i) Actual or physical delivery : Physical possession of goods is handed over to buyer from seller.

8 68 [ June 2012 ] Revisionary Test Paper (Revised Syllabus-2008) (ii) Symbolic delivery : In this case delivery involves transfer of some symbol that signifies real possession or control of goods. For example, endorsement of Railway Receipt, delivery of godown key etc. (iii) Constructive delivery : In this case there is only an acknowledgement on the part of the person holding possession of goods that he holds them on behalf of buyer. There are three types of constructive delivery : (A) When buyer holding the goods, as bailor holds them as his own. (B) When seller holding the goods, holds them as bailee of the buyer. (C) When third person holding the goods on behalf seller, now agrees to hold them on behalf of buyer. Answer 4. (c) The exceptions to the rule are given vide Sections 27 to 30 of Sale of Goods Act, These are as follows : (i) Sale by a mercantile agent who is in possession of the goods with consent of the seller and sells the goods in ordinary course of business. (ii) Sale by a joint owner in possession of goods with consent of other joint owners. (Sec 28) (iii) Sale by a person in possession of goods under a contract which may be voidable on the ground of fraud, misrepresentation, coercion or undue influence provided sale is made before voidable contract is avoided. (Sec 29) (iv) Sale by seller who is in possession of the goods after sale but not in capacity of buyer s bailee. The subsequent buyer must buy in good faith and for value. (Sec 30) (v) Sale by buyer who is in possession of the goods before actual purchase if the subsequent buyer buys bona fide and for value. (Sec 30(2)) (vi) Sale made by unpaid seller exercising his right of lien and stoppage in transit. (Sec 54(3)) (vii) Sale made by finder of lost goods u/s 169 of Indian Contract Act. (viii) Sale by pawnee or pledge u/s 176 of Indian Contract Act. (ix) Sale made by Official Receiver or Official Assignee or Liquidator. Answer 4. (d) Lien (1) Applicable only when goods are in possession of the seller. Stoppage-in-transit Applicable only after the seller has parted with the goods. (2) Applicable even if the buyer is solvent. Applicable only when the buyer becomes insolvent. (3) This is a right to retain possession of goods. This is a right to regain possession of goods. (4) The right can be exercised by seller only. The right can be exercised by seller through carrier or bailee who is in possession of the goods. Q. 5. Comment on the following : (a) Safety officers in any factory are optional and not mandatory. (b) X joined BE Engineering Works (P) Ltd. on On 8 th December, 2011 he was laid off as the management w anted t o slow do wn due t o short age of pow er. X w as not allow ed la y-off compensation on the ground that his period of service was less than one year.

9 Group-I : Paper-6 : Commercial and Industrial Law and Auditing [ June 2012 ] 69 (c) A laboratory assistant consumes a chemical during the night shift and dies. The chemical was not of the laboratory kit. His wife claimed compensation under the Employees Compensation Act, Answer 5. (a) As per Sec 40-B of The Factories Act, 1948 in every factory (i)wherein 1000 or more workers are ordinarily employed, or (ii) wherein, in opinion of the State Government, any manufacturing process or operation is carried on, which involves any risk or bodily injury, poisoning or any other hazard to health, to persons employed in factory, the occupier shall if so required by State Government by notification in Official Gazette, employ such number of safety officers as specified in the notification [Sec 40B(1)]. The duties, qualifications and conditions of service of Safety Officers are to be prescribed by State Government. [Sec.40 B(2)]. Answer 5. (b) Under Sec.25-B of Industrial Disputes Act, 1947, an employee shall deemed to be in continuous service of one year if has worked for at least 240 days during the period of 12 months preceding the reference date of calculation. A has worked for 273 days before he was laid off. So he is entitled to lay-off compensation and can claim the same. Answer 5. (c) The Employer is not liable to pay compensation as it is a case of suicide by the employee. The apex court observed in Mackenzie & Co. v. Ibrahim Mohammad Isaac (1970) S C 1906 that the words in course of employment means in course of the work which the employee who is employed to do and which is incidental to it. Further the words during the course of employment the injury should result from some risk incidental to duties of service owing to the employer. If the accident is inclined with some risk situated with employment, then the employee would succeed in getting compensation. Q. 6. (a) The employer of TGH Ltd made certain alteration in wage structure as a result of which certain allowances were discontinued. However the total salary of an employee remained unchanged. Will an application under Sec 15(2) oh the Payment of Wages Act, 1936 lie for this? (b) XYZ Ltd is running into losses and is unable to pay minimum rates of wages to its employees. The employees pleaded that employer is under obligation to pay the wages at minimum rates.xyz Ltd. Intends to go to the court challenging the constitutional validity of the Minimum Wages Act, Will the company succeed? (c) P is an employee in a XYZ Ltd. The following payments were made to him during the previous year : (i) Piece rate wages (ii) Productivity bonus (iii) Additional dearness allowance (iv) Value of Puja gift. Examine as to which of the above payments form part of Basic Wage of P under the Employees Provident Fund and Miscellaneous Provisions Act, Answer 6. (a) The discontinuance of allowance does not amount to deduction. As such no application will lie under Sec. 15(2) of the Payment of Wages Act, 1936.

10 70 [ June 2012 ] Revisionary Test Paper (Revised Syllabus-2008) Answer 6. (b) Minimum wages are required to be paid whether the company is in profit or loss. Section 3 of the Minimum wages Act, 1948 lays down that appropriate Government shall fix minimum wage and Section 22 says that employer is liable for penalty if minimum wages are not paid as per provisions of the Act. (Kamani Metals vs workers 1967 AIR 1175, 1967 SCR(2) 463). Answer 6. (c) As per Section 2 of the Employees Provident Fund and Miscellaneous Provision Act, 1952, the Basic Wages means all emoluments which are earned by an employee while on duty or on leave or on holidays with wages in either case in accordance with the terms of the contract of employment and which are paid or payable in cash to him, but does not include : (i) the cash value of any food concessions; (ii) any dearness allowance (that is to say all cash payments, by whatever name called, paid to an employee on account of rise in the cost of living), house rent allowance, overtime allowance, bonus, commission or pay and other similar allowance payable to the employee in respect of his employment or of work done in such employment; or (iii) any presents made by the employer. Applying the above provisions of the Act to the given problem, the Basic wages of P will include only piece rate wages but it excludes the Productivity bonus, additional dearness allowance and value of puja gift. Q. 7. (a) K works in a social welfare organization. Examine whether the Payment of Bonus Act, 1965 is applicable to him. (b) H retired from services on attaining the age of superannuation. After his retirement, it was noticed that he had misappropriated amount from travelling allowance drawn by him. The employer wants to deduct the misappropriated amount from gratuity payable to him. Is the action of the employer legally tenable? (c) G made a complaint before the Consumer Disputes Redressal Forum for seeking compensation against the State Electricity Board contending that due to fluctuations and fall in electricity voltage in his small scale industrial unit, he suffered production loss. Will he succeed under the Consumer Protection Act, 1986? Answer 7. (a) As per the provisions contained in Section 32 (v) (c) of the Payment of Bonus Act, 1965, K is not entitled to any bonus as the said Act is not applicable to social welfare organization. Answer 7. (b) Section 4(6) of the Payment of Gratuity Act, 1972 provides that (A) The gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused. (B) The gratuity payable to an employee may be wholly or partially forfeited (i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or (ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.

11 Group-I : Paper-6 : Commercial and Industrial Law and Auditing [ June 2012 ] 71 In the present case the employee has attained the age of superannuation and has retired. His misappropriation was noticed after his retirement. The employer wants to deduct misappropriated amount after his retirement. The decision of the employer is not tenable as H s services has not been terminated. Answer 7. (c) The claim is maintainable. The case is similar to that of Kerala State Electricity Board v Raveendran in which National Commission considered a complaint regarding fall in electricity voltage damaging the machine and affecting production. Compensation was awarded to the aggrieved party taking in the above facts. Q. 8. (a) Discuss Hazardous process under the Factories Act, (b) Have the Government employees a fundamental or statutory right to go on strike under the Industrial Disputes Act, 1947? Answer 8. (a) As per section 2(cb) of the Factories Act, hazardous process means any process or activity in relation to an industry specified in the First Schedule to the Act where, unless special care is taken, raw materials used therein or the intermediate or finished products, bye products, wastes or effluents thereof would (i) cause material impairment to the health of the persons engaged in or connected therewith, or (ii) result in the pollution of general environment. The State Government may, by notification in the Official Gazette, amend the First Schedule by way of addition, omission or variation of any industry specified in the said Schedule. Answer 8. (b) There is no statutory right to Government employee s to go on strike. Where there is any injustice done to the employee in a democratic welfare State, they should resort to the machinery provided under statutory provisions for redressal of their grievances as held by the apex court in T.K. Rangarajan vs Government of Tamil Nadu and others. Q. 9. (a) Explain the term arising out of employment and in course of employment in relation to the Employees Compensation Act, (b) State the rules regarding fixation of wage periods under the Payment of Wages Act, Answer 9. (a) An accident arising out of employment implies a causal connection between the injury and the accident and the work done in the course of employment. In course of employment refers to time during which the employment continues. This includes not only the actual period of work but also the time when the employee is at a place where he would not be but for his employment. Compensation under the Act is payable only in those injury/diseases where the employment is the immediate and proximate cause of the said injury/disease or in other words arising out of employment and in course of employment. Answer 9. (b) This is discussed under Section 4 of the Payment of Wages Act, As per Section 4 of the said Act : (i) Every person responsible for the payment of wages under section 3 shall fix periods (in this Act referred to as wage-periods) in respect of which such wages shall be payable; (ii) No wage-period shall exceed one month.

12 72 [ June 2012 ] Revisionary Test Paper (Revised Syllabus-2008) Q. 10. (a) Explain committee method and notification method for fixation of minimum wages under the Minimum Wages Act, (b) Explain the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 relating to the liability of an employer in case of transfer of the establishment to another person. Answer 10. (a) According to Section 5(1)(a) of the Minimum Wages Act, 1948 the appropriate government may appoint as many committees and sub-committees as it considers necessary to hold enquiries and advise it in respect of such fixation or revision as the case may be. This method is called Committee method. As provided in Section 5(1)(b) of the said Act, the appropriate Government by notification in the Official Gazette, fix or as the case may be revise the minimum rates of wages in respect of each scheduled employment and unless such notification otherwise provides it shall come into force on the expiry of three months from the date of its issue. This method is known as Notification method. Answer 10. (b) According to Section 17B of the Employee s Provident Fund and Miscellaneous Provisions Act 1952, where an employer in relation to an establishment, transfer that establishment in whole or in part by sale, gift, lease or licence or in any other manner whatsoever, the employer and the person to whom the establishment is so transferred shall jointly or severely be liable to pay the contribution and other sum due from the employer under any provision of this Act of the Scheme or the pension scheme, as the case may be, in respect of the period up to the date of such transfer. The liabilities of the transferee shall be limited to the value of the assets obtained by him by such transfer. The liability of transferor and transferee in relating to all the money due under the Act or the Scheme or pension scheme in case of the transfer of the establishment. Q. 11. (a) Explain the provisions of the Payment of Bonus Act, 1965 relating to adjustment of customary bonus against bonus payable under the Act. (b) Explain the concept of continuous service under the Payment of Gratuity Act, (c) What do y ou understand by the t erm defect in g oods under the Consumer Pr otection Act, 1986? Answer 11. (a) Adjustment of customary bonus against bonus payable: The Payment of Bonus Act, 1965 provides that if in any accounting year, an employer has paid any customary bonus to an employee, then the former shall be entitled to deduct the amount of bonus so paid from the amount of bonus payable by him to employee under the Act in respect of that accounting year. The employee shall be entitled to receive only the balance. The employer can do the same thing even in a case where he has paid off the bonus payable under the Act to an employee before the date on which such bonus payable becomes payable. (Section 17) Answer 11. (b) Section 2A of the Payment of Gratuity Act, 1972 deals with this provision. For the purposes of this Act, (1) an employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order treating the absence as break in service has been passed in accordance with the standing order, rules or regulations governing the employees of the establishment), lay off, strike or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of this Act. (2) where an employee (not being an employee employed in a seasonal establishment) is not in continuous service within the meaning of clause (1), for any period of one year or six months, he

13 Group-I : Paper-6 : Commercial and Industrial Law and Auditing [ June 2012 ] 73 shall be deemed to be in continuous service under the employer (a) for the said period of one year, if the employee during the period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than (i) one hundred and ninety days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and (ii) two hundred and forty days, in any other case; (b) for the said period of six months, if the employee during the period of six calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than (i) ninety-five days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and (ii) one hundred and twenty days, in any other case; Explanation : For the purpose of clause (2), the number of days on which an employee has actually worked under an employer shall include the days on which (i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Order s) Act, 1946 (20 of 1946), or under the Industrial Disputes Act, 1947 (14 of 1947), or under any other law applicable to the establishment; (ii) he has been on leave with full wages, earned in the previous year; (iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and (iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks. (3) where an employee employed in a seasonal establishment, is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer for such period if he has actually worked for not less than seventy-five per cent of the number of days on which the establishment was in operation during such period. Answer 11. (c) As defined in Section 2(1)(f) of the Consumer Protection Act,1986, defect means any fault, imperfection or short coming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods. Q. 12. (a) A Limited Liability Partnership is a body corporate, so shall have perpetual succession and can carry on business with any number of partners under the Limited Liability Partnership Act, Do you agree? (b) Certain categories of information have been exempted from disclosure under the Right to Information Act, Comment. Answer 12. (a) This is discussed in Section 6 of the Limited Liability Partnership Act, 2008.As per the section (1) Every limited liability partnership shall have at least two partners. (2) If at any time the number of partners of a limited liability partnership is reduced below two and the limited liability partnership carries on business for more than six months while the number is so reduced, the person, who is the only partner of the limited liability partnership during the time that

14 74 [ June 2012 ] Revisionary Test Paper (Revised Syllabus-2008) it so carries on business after those six months and has the knowledge of the fact that it is carrying on business with him alone, shall be liable personally for the obligations of the limited liability partnership incurred during that period. Answer 12. (b) As provided in section 8 of the Right to Information Act, 2005, there shall be no obligation to give following information to any citizen : (i) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; (ii) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court; (iii) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature; (iv) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; (v) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; (vi) information received in confidence from foreign Government; (vii) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; (viii) information which would impede the process of investigation or apprehension or prosecution of offenders; (ix) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers : Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over : Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; (x) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information : Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Q. 13. (a) FBG Ltd, an exporter of garments reached an agreement with the suppliers of raw material stipulating the source of material for ensuring quality of goods to be exported. Comment whether this amounts to anti competitive agreement under the Competition Act, 2002? (b) Comment on the following statement with reference to the provisions Negotiable Instruments Act. 1881: Once a bearer instrument always a bearer instrument. Answer 13. (a) According to section 3 of the Competition Act, 2002, no enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution,

15 Group-I : Paper-6 : Commercial and Industrial Law and Auditing [ June 2012 ] 75 storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India. In terms of this provision, an agreement stipulating the source of raw material for ensuring the quality of goods to be exported is not anti-competitive agreement. Answer 13. (b) A bearer instrument is one, which can change hands by mere delivery of the instrument. The instrument may be a promissory note or a bill of exchange, or a cheque. It should be expressed to be so payable or on which the last endorsement is in blank. (Explanation 2 to Section 13 of the Negotiable Instrument Act 1881). Under Section 46 where an instrument is made payable to bearer, it is transferable merely by delivery, i.e. without any further endorsement thereon. But this character of the Instrument can be subsequently altered. Section 49 provides that a holder of negotiable instrument endorsed in blank (i.e. bearer) may, without signing his own name, by writing above the endorser s signature, direct that the payment of the instrument be made to another person. Thus the character of the instrument is changed and the instrument cannot be negotiated by mere delivery. But in the case of a Cheque, however, the law is a little different from the one stated above. According to the provisions of Section 85 (2) where a cheque is originally expressed to be payable to bearer, the drawee is discharged by payment in due course to the bearer thereof, despite any endorsement whether in blank or full appearing thereon not with standing that any such instrument purported to restrict or exclude further negotiation. In other words, the original character of the cheque is not altered so far as the paying bank is concerned, provided the payment is made in due course. Hence the proposition that once a bearer instrument always a bearer instrument. Q. 14. (a) List the circumstances under which an LLP formed under the Limited Liability Partnership Act, 2008 may be wound up by tribunal? (b) What is the manner in which requests may be made by a citizen to the authority for obtaining information under the Right to Information Act, Answer 14. (a) A limited liability partnership may be wound up by the Tribunal, (i) if, the limited liability partnership decides that limited liability partnership be wound up by the Tribunal; (ii) if, for a period of more than six month,the number of partners of the limited liability partnership is reduced below two; (iii) if the limited liability partnership is unable to pay its debts; (iv) if the limited liability partnership has acted against the interests of the sovereignty and integrity of India, the security of the State or public order; (v) if the limited liability partnership has made a default in filing with the Registrar the Statement of Account and Solvency or annual return for any five consecutive financial years; or (vi) if the Tribunal is of the opinion that it is just and equitable that the limited liability partnership be wound up. Answer 14. (b) (1) A person, who desires to obtain any information under this Act, shall make a request in writing or through electronic means in English or Hindi or in the official language of the area in which the application is being made, accompanying such fee as may be prescribed, to (i) the Central Public Information Officer or State Public Information Officer, as the case may be, of the concerned public authority;

16 76 [ June 2012 ] Revisionary Test Paper (Revised Syllabus-2008) (ii) the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, specifying the particulars of the information sought by him or her : Provided that where such request cannot be made in writing, the Central Public Information Officer or State Public Information Officer, as the case may be, shall render all reasonable assistance to the person making the request orally to reduce the same in writing. (2) An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him. (3) Where an application is made to a public authority requesting for an information, (i) which is held by another public authority; or (ii) the subject matter of which is more closely connected with the functions of another public authority, the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer : Provided that the transfer of an application pursuant to this sub-section shall be made as soon as practicable but in no case later than five days from the date of receipt of the application. Q. 15. (a) ABC Ltd. made an initial public offer of certain number of equity shares. Examine whether these shares can be considered as Goods under the Competition Act, 2002 before allotment. (b) When is presentment of an instrument not necessary under the Negotiable Instruments Act? Answer 15. (a) Section 2(i) of Competition Act, 2002 defines goods as follows : Goods means goods as defined the Sale of Goods Act, 1930 and includes (A) products manufactured, processed or mined; (B) debentures, stock and shares after allotment; (C) in relation to goods supplied, distributed or controlled in India, goods imported into India. Hence, debentures and shares can be considered as goods within the meaning of section 2(i) of Competition Act, 2002 only after allotment and not before allotment. Answer 15. (b) According to Section 76 of the Negotiable Instruments Act 1881, no presentment to payment is necessary in any one of the following cases : (i) if the maker, drawee or acceptor intentionally prevents the presentment of the instrument, or (ii) if the instrument being payable at his place of business, he closes such place on a business day during the usual business hours, or (iii) if the instrument being payable at some other specified place, neither he nor any other person authorised to pay it attends at such place during the usual business hours, or (iv) if the instrument not being payable at any specified place, if he (i.e. maker etc) cannot after due search be found; (v) as against any party sought to be charged therewith, if he (i.e maker, etc.) has engaged to pay notwithstanding non-presentment; (vi) as against any party if after maturity, with knowledge that the instrument has not been presented he makes a part payment on account of the amount due on the instrument, or promises to pay the amount due thereon in whole or in part, or otherwise waives his right to take advantage of any default in presentment for payment; as against the drawer, if the drawer could not suffer damage from want the of such presentment.