Section 263 of the Indian Contract Act, 1872, provides that after dissolution of partnership, the rights and obligations of the partners continue in all things necessary for winding-up the business of the partnership. In the normal course there must be a general sale and winding up followed by a distribution of the surplus.[1] In all…
When a partner dies, subject to any contract to the contrary, partnership is dissolved. Section 42 of the Indian Partnership Act, 1932 (“Act”) provides for dissolution of partnership on occurrence of certain contingencies which includes ‘death of the partner’ as one of those contingencies. Plain reading of the Section 42 would show that, subject to…
The distinction between private law and public law remedy was, fairly, settled by the Apex Court in LIC vs. Escorts India Ltd [(1986) 1 SCC 264], wherein a Constitution Bench has held thus: If the action of the State is related to contractual obligations or obligations arising out of the tort, the Court may not ordinarily…
The related question is whether a partnership firm is such an entity in law that notwithstanding the death of a partner, that entity does not undergo a change and whether the legal entity, continues notwithstanding the death of one of the partners. Under the Indian Partnership Act a partnership has not been given any legal…
Introduction The concept of Separability of the arbitration clause is both interesting in theory and useful in practice. It means that the arbitration clause in a contract is considered to be separate from the main contract of which it forms part and, as such, survives the termination of the contract. Indeed, it would be entirely…
Section 54GA of the Income Tax talks about exemption of capital gains on transfer (sale) of capital assets of the existing unit to a third party at the time of shifting of industrial undertaking from urban area to any Special Economic Zone. Such instance of capital gain arises when the three ingredients of capital gains…
The High Court of Andhra Pradesh in Secretary to Govt. Public Works and Transport Department, Andhra Pradesh and Ors. vs. Adoni Ginning Factory and Ors.[1] noted at para 28- “Freedom of contract is one thing. Right under a contract or right to performance of a contract is another. It is only the former that is…
Meaning of Constructive Fraud Constructive Fraud (“CF“) is a legal fiction used in the law to describe a situation where a person or entity gained an unfair advantage over another by deceitful, or unfair, methods. Intent does not need to be shown[1] as in the case of actual fraud[2]. Under contract law, a defendant can be liable to a plaintiff…
What is Encryption? Schedule V of the Information Technology (Certifying Authorities) Rules, 2000, defines encryption as- “The process of transforming plaintext data into an unintelligible form (cipher text) such that the original data either cannot be recovered (one-way encryption) or cannot be recovered without using an inverse decryption process (two-way encryption).” Cryptographic techniques are generally…
Difference between the issue of new shares by a company and the transfer of shares already issued by a shareholder In the first case, it is the company which issues and allots the new shares. In the second, the transaction is a private arrangement and the company comes into the picture only for the purposes…
FDI IN REAL ESTATE BUSINESS & CONSTRUCTION DEVELOPMENT SECTOR FDI is not permitted in an entity which is engaged or proposes to engage in real estate business, construction of farm houses and trading in Transferable Development Rights (TDRs).[1] For this purpose of FDI investment in real estate business, the term “Real Estate Business” means dealing…
Scope and Definition of ‘fiduciary’, “fiduciary capacity” and “fiduciary relationship” The Hon’ble Supreme Court in Sri Marcel Martins vs. M. Printer and Ors.[1] defined the term ‘fiduciary’ as- “The word ‘fiduciary’, as a noun, means one who holds a thing in trust for another, a trustee, a person holding the character of a trustee, or…