NIRBHAYA RAPE CASE CONVICTS TO BE HANGED TO DEATH ON 1st FEB 2020

• Diksha Srivastava
• News Updates
• Sat, 25 Jan 2020 04:15 PM

Mukesh Singh and five others brutally gang-raped a 23-year-old Delhi paramedic student Nirbhaya, in December 2012. The incident was widely condemned, both in India and abroad. Subsequently, public protests against the state and central governments for failing to provide adequate security for women took place in New Delhi, where thousands of protesters clashed with security forces.

Looking at the seriousness of the matter, a court-ordered death sentence to be given to 4 of the convicts. Out of six accused, one committed suicide at the Tihar Jail and the juvenile was sent to a reformation home for three years. Previously, the hanging was to take place on 22nd Jan 2020 but the death warrant could not be executed as some of the accused used legal options, such as moving a curative petition in the Supreme Court and mercy petition to the President. However, the curative petition was dismissed by the Supreme Court and the mercy plea was rejected by the president.

Simultaneously, the Delhi HC issued fresh death warrants against the four Nirbhaya convicts and set a new date for their hanging that is February 1, 2020, at 6 am. On the extension of days for hanging the convicts Nirbhaya's mother expressed grave displeasure, she said that “Those who attacked my daughter are being given a thousand options, but we have no rights?” It is so disheartening that a mother who has been waiting for justice for 8 years has to wait more and more, even after the conviction has been confirmed.

Further, Chief Justice of India (CJI) Sharad A. Bobde said that a condemned person cannot fight the death penalty endlessly and it is important that capital punishment should reach its finality. He also asked the Solicitor-General Tushar Mehta, that, “whether a condemned person, who reforms after the award of the death sentence by a court, should be spared the noose?” To which Mr Mehta replied, “If that is accepted, there will be no death penalty. You can't kill your parents and then claim mercy saying you are an orphan”.

BANK GUARANTEE AND ITS LEGALITIES

• Shajeeda Tajdeen
• Legal Article
• Sat, 25 Jan 2020 11:50 AM

Meaning: A bank guarantee is a tripartite agreement between the banker, the beneficiary and the person or the customer, whereby an undertaking is given by the bank that it will pay the beneficiary a definite sum of money, or arrange the performance of the obligations of the client in the possible event of his default. 

Banks are generally approached because they have the financial capacity to meet such obligations.  It is primarily a sort of an absolute undertaking to pay the amount whenever demanded by the guarantee holder.

• A bank guarantee contract is distinct and independent from the underlying contract that exists between the beneficiary and the creditor. i.e. the relationship status between the guarantee holder and the person on whose behalf the guarantee is given does not affect the bank guarantee contract. And this feature plays a pivotal role in regulating the liability of the banks in the event of default by the debtor.

• Bank guarantee not only protects the creditor from the loss but it also gives the right to the creditor to claim debt in case of default without the lengthy process of litigation. It basically facilitates the free flow of the trade.

Bank Guarantees are guarantee basically given by Suppliers/Contractor’s Bank in favour of the Buyer/Principal:

• As security against initial and stage payment made by the Buyer to the Supplier.

• As security against performance of the contract.

• Towards liquidated damages in exceptional cases of large value contracts etc.

• Towards earnest money deposit.

Bank guarantee is also called ‘first demand’ or ‘on-demand’ guarantee because they are paid against the beneficiary’s first written demand for payment and no further documentation or proof of default is required.

Types of Bank Guarantee

1. Advance Payment guarantee- It is mostly used in export and import business. However, with the advancement of business and trade, this guarantee has now been extended to domestic trade as well. This is mostly used by the buyers of goods to secure the advance payment made by them. Advance guarantee paid can be recovered as it is the primary obligation of the bank which is giving the guarantee.

2. Payment Guarantee-  This is a more secure guarantee because collateral securities are given with this type of guarantee, in the event of default by the debtor the bank can recover the given amount from the collateral securities given by the debtor. In short, it binds the debtor to make the payment. 

Liability under Bank Guarantee

• The amount of liability undertaken in a bank guarantee without any objection or dispute under the terms of guarantee is absolute and unequivocal.

• As per Sec. 128 of the Indian Contract Act, 1872, the surety’s liability under the normal guarantee is co-extensive with that of the principal debtor i.e. the liability of the guarantee is to the same extent as that of the principal debtor. 

• While in a bank guarantee the bank becomes liable when the conditions in the guarantee instruments are fulfilled without regard to the transaction between the beneficiary and the person for whose obligation the guarantee has been given i.e. the liability may arise even when such later person has not been in default, his actual liability under that transaction would be much less than the amount paid under the unconditional guarantee.

• The bank guarantee can be imposed simply without scrutinizing into the nature of the transactions between the Bank and the customer that led to the furnishing of the bank guarantee.

• The bank has to pay irrespective of any objections raised by the person at whose instance the guarantee has been given and cannot raise a contention regarding the breach by the principal debtor.

• Also, any changes in a contract put in effect by one of the parties do not affect the liability under the guarantee. The bank may reject the bank guarantee if the beneficiary is not able to show that the all the required terms in the bank guarantee are fulfilled, in cases where all the requisites are fulfilled the bank has to make the payment.

Invocation of Bank Guarantee

A beneficiary can at any time invoke the bank guarantee, in such situation the bank has to only confirm that all the terms and conditions of the contract of the guarantee are satisfied after due examination. However, the invocation is based on the terms of the guarantee. 

Exceptions
Exceptions Payment under a bank guarantee may be refused of restrained: 

1. Fraud- If it is prima facie evidence that a fraud has been committed by the beneficiary then the bank can put a stop against the encashment of bank guarantee. A mere allegation of fraud will not suffice the purpose of strong evidence to prove the same is a must.

Irretrievable harm or injustice- If the bank guarantee tends to harm or any way leads to injustice to one of the parties concerned then the creditor is not entitled to encash the bank guarantee, the harm must be genuine and immediate.

2. Safeguards taken by banks: To reduce the risks to which the banks are exposed while furnishing bank guarantees on behalf of their clients, banks resort to the following to safeguard their interest.

• Limits & Margins: Banks lay down maximum monetary limits up-to which they would furnish guarantees and open letters of credit at any point of time. The limits and margins fixed are based on many factors such as the financial standing, extent to which the account has been maintained by customers satisfactorily, the volume of transactions, past track record of the Counter client in-respect of such guarantees etc. The percentage of margin ranges from ten to fifty percent of the bank guarantee. The margin money is released once the principal debtor has fulfilled its obligation towards the bank. The limits and margins are reviewed and are re-fixed periodically depending upon the changes in the environment

• Counter Guarantee: Apart from fixing limits and taking margin money as security. Bank also opts for counter-guarantee. Bank invariably obtains the counter-guarantee from the principal debtor before giving the guarantee, after this the bank debits the client’s accounts when the invocation of bank guarantee is done by the creditor in order to proceed legally against the client in case of default by him to repay the amount.

• Limitation Period: The limitation period for enforcing the bank guarantee is three years from the date on which the letter of guarantee was executed. Recovery procedure initiated after three years is liable to be quashed.  It should be noted that till the time the account is alive i.e. it is not settled nor there is any refusal by the guarantors to carry out the obligations, the limitation period does not start.

Bank Guarantee and International Business

The bank guarantee is a unilateral legal transaction by which a bank as a guarantor undertakes an obligation to guarantee to pay the beneficiary a certain amount of money specified in the guarantee if certain terms and conditions are fulfilled, or if the debtor from the original contract does not fulfil his/her contractual obligations or if the obligations are fulfilled improperly. In international business, sellers are usually unaware of the financial situation of the customer and the results of his/her operations thus, there is always certain amount of risk present in the sales contract especially when it comes to the shipment of good without securing its payment.
In such events, bank guarantee brings down or eliminates the risk because the bank which gives the guarantee is also directly responsible towards the seller, i.e. the seller is assured that in case of any default the bank will pay the amount. Thus bank guarantee is an independent legal transaction, this feature of bank guarantee gave it an impetus in matters of international trade so today we can hardly imagine and conclude any serious contract with a foreign partner without its fulfilment being provided through a bank guarantee.

Bank guarantee has an upper hand when compared with the other means of personal security, because of its abstractness. Lack of accessory in bank guarantee provides for broader protection of economic interests of the creditors. Bank guarantee occurs as an institution that significantly influences the improvement of international economic relations. 

With bank guarantees, companies from the less developed countries enjoy a great deal on the competitiveness of their offerings in international affairs, because with their acceptance contractual partners are not placed in a less advantageous position in terms of risk of realization of their claims. Bank guarantees have, thus, creating a higher level of security for creditors and has also significantly affected the stabilization of relations in the international market. In the modern scenario where there is a huge distrust among the participants of the global business scenario, contracts or deals should be done with well-known and reliable business entities and bank guarantee is only backing this concept to great extent.
 

NOTE: As per RBI in terms of Regulation 4 of the Foreign Exchange Management (Guarantees) Regulations, 2000 notified by Notification no. FEMA.8/2000-RB dated May 3, 2000. Authorized Dealer banks are allowed to give guarantees in certain cases, as stated therein.

1. Issue of Bank Guarantee in favour of Foreign Airlines/IATA: The Indian agents of foreign airline companies, who are members of International Air Transport Association (IATA), is required to furnish bank guarantees in favour of foreign airline companies/IATA, in connection with their ticketing business. This being one of the standard requirement of the business, Authorized Dealer banks in their ordinary course of business have the power to issue guarantees in favour of the foreign airline companies/IATA on behalf of Indian agents of foreign airline companies, who are members of IATA, in connection with their ticketing business.

2. Issue of Bank Guarantee on behalf of Service Importers: In order to liberalize the procedure regarding the import of services, it was decided by the RBI to increase the limit for issue of guarantee by AD Category-I Banks from USD 100,000 to USD 500,000 i.e. Category-I banks cannot issue guarantee exceeding USD 500,000 in favour of a non-resident service provider on the behalf of a resident service importer, given that The Authorized Dealer Category-I Bank:

• Is satisfied with the bonafide nature of the transaction.

• Ensures submission of documentary evidence for import of services in the normal course.

• And the guarantee is to secure a direct contractual liability arising out of a contract between a resident and a non-resident.

However, in the case of a Public Sector Company or a Department/ Undertaking of the Government of India/ State Governments, approval is required from the Ministry of Finance, Government of India for the issue of guarantee for an amount exceeding USD 100,000 (USD One hundred thousand).

3. Invocation of guarantee: In case of invocation of the guarantee, the Authorized Dealer bank should send a detailed report to the Chief General Manager-in-Charge, Foreign Exchange Department, External Payments Division(EPD), Reserve Bank of India, Central Office, Mumbai 400 001, explaining the circumstances leading to the invocation of the guarantee.

DEFINITIONS UNDER ARBITRATION ACT

• Shajeeda Tajdeen
• Legal Notes
• Wed, 20 Nov 2019 05:38 PM

Sec 2 (1), in this part unless the context otherwise requires:

1. ‘arbitration’- means any arbitration whether or not administered by a permanent arbitral institution.

Explanation-  the definition is not comprehensive, it does not assign ant particular meaning to the term arbitration, therefore, its commonly understood meaning shall apply. The terms as defined in this clause connote that although arbitration is supposed to be entrusted to individuals appointed by the parties themselves this Act would recognize arbitration entrusted to permanent arbitral institutions also.

 However, individuals of the party’s choice can still be appointed as arbitrators because it is not obligatory to entrust it to an institution.

2. ‘arbitration agreement’- means an agreement referred to in section 7.

Explanation- according to sec 7, arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement or may arise where parties by reference import the arbitration clause contained in an earlier document into a subsequent contact so as to incorporate it.

3. ‘arbitral award’-  includes an interim award.

Explanation-  sec 2(1)(c) merely clarifies that an arbitral award would include an interim award. It does not define the term. It must be read with sec 31. of the Act which deals with the form and contents of an arbitral award.

4. ‘arbitral tribunal’-  means a sole arbitrator or a panel of arbitrators.

Explanation-  the expression arbitral tribunal means a sole arbitrator or a panel of arbitrators. In view of the provisions of sec 10 reference can be made to a sole arbitrator or an uneven number of arbitrators termed as an arbitral tribunal.

5. ‘court’- means the principal Civil Court of original jurisdiction in a district and includes the High Court in exercise of its original jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include ant Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes.

6. ‘international commercial agreement’-  means an arbitration relating to disputes arising out of legal relationships, whether contractual or mot, considered as commercial under the law in force in India and where at least one of the parties is-

• an individual who is national of, or habitually resident in, any country other than India or

• a body corporate which is incorporated in any country other than India or

• the Government of a foreign country.

7. ‘legal representative’- means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party acts in a representative character, the person on whom the estate devolves on the death of the party so acting.

Explanation-  the definition of the term ‘legal representative’ can be divided into three parts. According to the definition the following persons are to be regarded as legal representatives;

• a person who in law represents the estate of the deceased, for example, an executor of a will or administrator of the estate of the deceased or an heir under the personal law; or in the Court of Wards who administers the estate of the ward;

• a person who intermeddles with the estate of the deceased, that is, a person who retains possession of the properties belonging to the estate of the deceased with the intention of representing it.

• in the case of claims of a representative character a person on whom the estate devolves on the death of a party to the arbitration.

         The following persons have been held not to be legal representatives:

•  an assignee from a deceased zamindar to whom the holding reverts on the death of the tenant.

• A person who claims adversely to the estate of the deceased.

• A new trustee appointed or elected on the death of the deceased trustee.

8. ‘party’- means a party to an arbitration agreement.

Explanation-  the meaning of the expression ‘party’ is not restricted to a party who signed the agreement to the extent as provided in secs. 40, 41 and 35 since the context requires otherwise. Therefore, to the extent, as provided in secs. 40 and 41 the term party will include the legal representatives of the party upon the death of the party or a receiver or official assignee in the case of insolvency of the party, further, in sec 35 persons claiming under the parties are equated with parties for the purposes of the binding character of an arbitral award.

9. Sec 2(7) defines ‘domestic award’- as an arbitral award made under Part-I shall be considered as a domestic awards

Explanation- in order to constitute a domestic award it is essential that-

• The arbitral award should be made in arbitration proceedings conducted in India. It is immaterial whether the arbitration is an international commercial arbitration or non-international commercial arbitration.

• Such proceeding must be in accordance with Part –I of the Act.

Cross-Examination of Approver by the Accused

• Legal Notes
• Mon, 04 Nov 2019 01:02 PM

Category; trial procedure 

The term approver is neither defined nor used under Criminal Procedure Code but is usually applied to a person, supposed to be directly or indirectly concerned in or privy to an offense to whom a pardon is granted under section 306 of CrPC with a view to securing his testimony against other persons guilty of the offense. The examination of the approver under section 306(4) of the code is mainly concerned with the examination of the complainant and witness by the Magistrate while processing the complaint under section 200 of the CrPC before setting up the process. The question of ‘Examination of the witness’ arises only after charges are framed under section 228 of CrPC. As there is no express provision u/s 306(4) CrPC which permits the accused to cross-examine an approver before committing the case to the Court of Session the Magistrate is not empowered to appreciate the evidence in session triable case. Further, the term “Examination’ under section 306(4)(a) cannot be interpreted to mean ‘Examination’ as contemplated under section 138 of Evidence Act, so as to give an accused the right to cross-examine the approver, at the pre committal stage. In Suresh Chandra Bahri v. State of Bihar (2000) the Supreme Court Bench has regarded section 306(4) as mandatory provision and observed that the object and purpose in enacting this mandatory provision is obviously intended to provide a safeguard to the accused in as much as the approver has to make a statement disclosing his evidence at the preliminary stage before the committal order is made and the accused not only becomes aware of the evidence against him but he is also afforded an opportunity to meet with the evidence of an approver before the committing Court itself at the very threshold. 

In no stretch of circumstances the cross-examination which is contemplated under section 306(4) of the Code can be equated with the ‘examination of witness’ under section 138 of Evidence Act. where u/s 305 CrPC when an approver is being examined by a Magistrate, he is merely recording his statement after grant of pardon and as such he merely acts as a post office by recording a statement u/s 306 CrPC and thereafter forwards it to the court of session which is the court competent to try the case and therefore the term ‘examination’ used in section 306(4) cannot be equated with the term ‘examination of witness’ meant u/s 138 of Evidence Act.