MAHARASHTRA NATIONAL LAW UNIVERSITY, AURANGABAD

INTERNSHIP REPORT 2020

(NOVEMBER- DECEMBER 2020)

SUBMITTED BY

NAME – HARSHITA PARIHAR

ROLL NUMBER- 08
BA LLB 3RD YEAR
BATCH 2018-2023
 INDEX

S.NO. CONTENT
1. DECLARATION
2. ACKNOWLEDGEMENT
3. CERTIFICATE
4. INTRODUCTION
5. DAILY WORK LOG
6. CONCLUSION

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 DECLARATION

This declaration is made at (VAPI) that, this Internship Report is prepared and drafted by me,
(HARSHITA PARIHAR)

It contains the work that was assigned to me during my internship period, and successfully
accomplished from my side.

This report is a sincere attempt at compilation of the aforementioned work.

This has not been submitted, either in whole or in part, to any other Law University or affiliated
Institute under any University as recognized by the Bar Council of India, for the award of any
other law degree or diploma, within the territory of India.

Name- HARSHITA SINGH PARIHAR

Roll no - 08

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 ACKNOWLEDGEMENT

I express my deepest thanks to Aditya Giri sir and Sheetal Vohra mam, for taking part
in useful decision & giving necessary advices and guidance and arranged all facilities to
make life easier. I choose this moment to acknowledge his/her contribution gratefully.

I perceive as this opportunity as a big milestone in my career development. I will strive

to use gained skills and knowledge in the best possible way, and I will continue to work
on their improvement, in order to attain desired career objectives. Hope to continue
cooperation with all of you in the future,
Sincerely,

Name – Harshita Parihar

Place: Vapi

Date: 11-01-2021

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 INTRODUCTION
Place of Internship and Duration

I have interned at two different places for the duration of 60 days. Where one of them was
scheduled at Giri Chambers&Co. the other one was scheduled at Vohra and Vohra. Both these
firms are in Delhi. The first one is specialized for litigation while the other one is an IPR Firm.
Giri sir has been helpful to me all the time and has helped me a lot. On the very first day my
work included researching on a Special Leave Petition. Under Article 136, the Constitution of
India gives power to the Supreme Court to grant special permission or leave to an aggrieved
party to appeal against an order passed in any of the lower courts or tribunals in India. Special
leave petition (SLP) means that an individual takes special permission to be heard in appeal
against any high court/tribunal verdict. Thus it is not an appeal but a petition filed for an appeal.
So after an SLP is filed, the Supreme Court may hear the matter and if it deems fit, it may grant
the ‘leave’ and convert that petition into an ‘appeal’. SLP shall then become an Appeal and the
Court will hear the matter and pass a judgment.

SLP CAN BE PRESENTED UNDER FOLLOWING CIRCUMSTANCE

 It can be filed against any judgment or decree or order of any high court /tribunal in the
territory of India, or
 It can be filed in case a high court refuses to grant the certificate of fitness for appeal to
Supreme Court of India.

TIME LIMIT TO FILE SLP

 It can be filed against any judgment of a high court within 90 days from the date of
judgment, or
 It can be filed within 60 days against the order of a high court refusing to grant the
certificate of fitness for appeal to Supreme Court.
The aggrieved party or the petitioner filing SLP has to give a brief synopsis of the facts and
issues presented in the case along with a list of dates specifying the chronology of events

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pertinent to the judgement. Along with this, the petitioner has to formulate questions of law to
appeal against the judgement. These questions should pertain to laws relevant to the general
public as well. Once registered and presented in the Supreme Court, the petitioner will get a
hearing before the Court. Subsequently, depending on the merits of the case, the Supreme Court
will issue a notice to the opposite parties who will then file a counter affidavit stating their views.
It’s at this point that the Supreme Court will decide whether to grant leave to the petitioner or
not. If the Court grants leave, the case is then converted into a civil appeal and will be argued
afresh in the Supreme Court. The Supreme Court can rescind or revoke the earlier judgement,
modify it or allow it. The Court can also send the case back to the relevant lower court for fresh
adjudication in light of principles laid down by it or on account of any issues missed out by the
lower court.

Article 133–136 of the Constitution of India defines the appellate jurisdiction of the Supreme
Court. Article 133 provides for civil appeals from orders of the High Court, Article 134 provides
for criminal appeals and Article 136 provides for special leave petition. If a case does not fall
within Article 133 or Article 134 then under Article 136 the Supreme Court may be moved and a
special permission may sought to grant leave to appeal. I am presenting the SLP also.

Union Of India V. Dipak Kumar and Jagubhai Patel.

1. The present SLP has been filed in the Supreme Court of India under Article 136 by Union
of India & ors against Dipak Kumar Jagubhai Patel and ors. The instant Special Leave
Petition is being filed against the final impugned Judgment and Order dated 18.11.2019
passed by the Hon'ble High Court of Judicature at Bombay in Writ Petition of the
Petitioners and accordingly makes the Rule absolute in terms of prayers (a) to (c) of the
Writ Petition.
2. That in the month of November 2018, National Testing Agency (NTA) has issued the
application form for NEET-2019 examination for the admission for the Academic Year
2019-2020. On 05.05.2019, NEET examination were held for the admission for
Academic Year 2019-2020 and the results for the same were announced on 05.06.2019.

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3. When the NEET results were announced, the petitioner No.4 i.e. Government Medical
College Silvassa published the guidelines for admission in MBBS Course for the
Academic Year 2019-2020. Subsequently on 06.06.2019, the Petitioner No.3 issued the
policy for admission to MBBS Course in Petitioner No.4 College for the Academic Year
2019-2020.
4. Respondent no 2 is the son of Respondent no 1. In the meantime, a representation has
been made by Mrs Jyotsna Pankajbhai Rathod, mother of the proforma Respondent No.3
herein to the Secretary (Education/Health) } for rechecking of provisional SC of Dadra
and Nagar Haveli merit list for MBBS Seat of 2019-20 dated 07.07.2019.
5. Therefore, the said department sent the Caste Certificate and a domicile for the purpose
of verification to the Mamlatdar, Dadra and Nagar Haveli for transparency. After duly
verifying the documents, Mamilatdar of Dadra and Nagar Haveli issued a letter regarding
the status of the candidates falling under SC, ST & OBC categories.
6. It is noteworthy to mention here that after duly verifying the documents of the
Respondent No.2, the Mamlatdar of Dadra & Nagar Haveli proposed for the cancellation
of the Caste Certificate issued to the Respondent No.2 as SC of Dadra & Nagar Haveli.
7. Thereafter, the Admission Committee of the Petitioner No.4 College issued a list on the
basis of the report received from Mamlatdar, Dadra & Nagar Haveli and accordingly the
candidature of the Respondent No.2 Was not considered for admission at Petitioner No.4
College under the SC Category of, Dadra & Nagar Haveli. Therefore, the Petitioner No.4
had to be considered the next candidate from Dadra & Nagar Haveli(Ms. Shradha P
Rathod)
8. Aggrieved by the said act, Respondent No.1 & 2 filed a Writ Petition bearing W.P.(ST)
No. 20862 of 2019 before the Hon'ble High Court of Bombay for considering the
Respondent No.2 as SC category candidate of Dadra & Nagar Haveli. The Division
Bench of the Hon'ble Bombay High Court by its interim order dated 23.07.2019 had
directed the Petitioner No.4 to grant admission to Respondent No.2, provided the
Respondent No.2 complies with all other requirements of the Rules against one SC Quota
MBBS Seat in Petitioner No.4 College for the Academic year 2019- 2020.
9. The sole basis of the respondent no.1 & 2 is that a they belong to Hindu "Rohit" caste
which js recognized as a Scheduled Caste under Constitution (Dadra and Nagar Haveli)

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 and placed reliance on the Caste Certificate dated 10.07.1989 issued by the Mamlatdar,
Dadra and Nagar Haveli at Silvassa.
10. However, in year 1989 when the caste certificate came to be issued in favour of the
respondent no1, Rohit Caste was not notified as Scheduled Caste under the
Constitution(Dadra and Nagar Haveli) order, 1962. The said Caste Certificate issued to
the respondents No.1 without “ inclusion of "Rohit" Caste in list of Constitution (Dadra
and Nagar Haveli) Scheduled Castes Order, 1962 and the said certificate issued in favour
of the respondent no.1 is itself null and void ab-initio.
11. That the family of the respondent no.1 migrated from the State of Gujarat to the Union
Territory of Dadra and Nagar Haveli in the year 1969 which is admitted by the
respondent no.1 for the employment purpose, whereas the Constitution(Dadar Nagar and
Haveli ) Schedule Caste Order ,1962 was issued including the name of only 4 castes
(annexed) which were mentioned as Schedule Castes. However, Rohit caste was not
admitted to be a part of it as its name was not there. Also to be noted that the family of
Respondent no 1 who was serving as a Government Servant in Union Territory migrated
from the State of Gujarat to D&H in the year 1969.
12. That it is very clear from the above mentioned facts that he shifted after the Presidential
order. Therefore it becomes clear that the entry of the ancestors of the respondent no.1
after the presidential order of 1962 and hence for the purpose of reservation in the
education or employment the respondent no.2 has to be considered as migrant and cannot
be allowed to avail the benefits of reservation in the category of scheduled caste which is
earmarked only for the local people residing in the Union Territory of Dadra and Nagar
Haveli to the issuance of the Constitution (Dadra and Nagar Havel) Scheduled Caste
Order, 1962
13. That the office of Petitioner no 4 allotted that one SC seat to the other candidate as she is
resident of Dadar Nagar & Haveli whereas the Respondent no 1comes under the category
of migrant.
14. In another case, the Division bench of this Court in W.P.No.12920/2004 vide letter dated
22.09.2017 [M.Panchatcharam vs Union of India, rep.by Government of Pondicherry
& Another] held that a person who was born and brought up in the Union Territory of
Pondicherry whose caste have been notified as Scheduled Caste in the Constitution

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 (Pondicherry) Scheduled Castes Order, 1964, would be entitled to obtain the Scheduled
Caste Certificate from the prescribed authority of Union Territory of Pondicherry in
terms of Letter No.BC.16014/1/82/SC & BCD-1 dated 22.02.1985 of the Government of
India.
15. Reliance can be placed upon certain case laws such as in Marri Chandra Shekhar Rao
reported in 1990 (3) sec 130 categorically held that : when a person is held to be a
member of the Scheduled castes for any state, he cannot be treated as such in another and
the same was followed by this Hon'ble Court in its recent Judgment in the matter of Bir
Singh vs Delhi Jal Board reported in 2018 SCC online SC1241, That a SC/ST
candidate of Dadra and Nagar Haveli when migrates to State of Gujarat or any other
State, they are treated as migrants and no benefits of reservation are given to them.
16. But when migrants from another State come to the UT of Dadra and Nagar Haveli, they
can get the. benefit of reservation. This position is absurd and violative of Constitutional
mandate of Article 341 and the Constitution (Dadra and Nagar on Haveli) Scheduled
Castes Order, 1962 in favour of the people of UT of Dadra and Nagar Haveli.
17. Article 341 reads as The President may with respect to any State or Union territory, and
where it is a State after consultation with the Governor thereof, by public notification,
specify the castes, races or tribes or parts of or groups within castes, races or tribes which
shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to
that State or Union territory, as the case may be.
18. Even the policy of the college / institute reads as in para2.3 -Eligibility for the Reserved
Seat it was stated as- Seats reserved for SC/ST/OBC/PWD candidates in Dadra & Nagar
Haveli or Daman & Diu will be filled up only by candidates of the UT of Dadra & Nagar
Haveli or Daman Diu respectively, who are entitled to such reservations. Candidates who
or their parents have migrated from other states to UT of Dadar Nagar and Haveli or
Daman and Diu shall not be entitled to avail benefits of these seats.
19. That after the presidential order in 1969 they moved to DN&H and so they need to be
treated as migrants and cannot be allowed to avail the benefits of reservation in the
category of scheduled caste which earmarked only for the people of that place and not for
everyone.

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20. That the hon’ble court in the landmark judgment of Marri Chandra Shekhar
Rao( supra) clearly observed that though SC and ST’s would be allowed to enjoy all
constitutional rights But when a Scheduled Caste or Tribe migrates, there is no inhibition
in migrating but when he migrates, he does not and cannot carry any special rights or
privileges attributed to him or granted to him in the original State specified for that State
or area or part thereof. If that right is not given in the migrated State it does not interfere
with his constitutional right of equality or of migration or of carrying on his trade,
business or profession.
21. That Neither Article 14,15,16 nor Article 21 is denuded by migration but he must enjoy
those rights in accordance with the law if they are otherwise followed in the place where
he migrates. There should be harmonious construction; harmonious in the sense that both
parts or all parts of a constitutional provision should be so read that one part does not
become nugatory to the other or denuded to the other but all parts must be read in the
context in which these are used.
22. That In Subhash Chandra and Anr. v. Delhi Subordinate Services Selection Board
and Ors., (2009) 15 SCC 458, the Supreme Court reiterated that “If a caste or tribe is
notified in terms of the Scheduled Castes Order or the Scheduled Tribes Order, the same
must be done in terms of clause (1) of Article 341 as also that of Article 342 of the
Constitution of India, as the case may be. No deviation from the procedure laid down
therein is permissible in law. If any amendment/alteration thereto is required to be made,
recourse to the procedure laid down under clause (2) thereof must be resorted to."
23. That for example if In Andhra Pradesh, a Scheduled Caste or a Scheduled Tribe may
require protection because a boy or a child who grows in that area is inhibited or is at
disadvantage. In Maharashtra that caste or that tribe may not be so inhibited but other
castes or tribes might be. If a boy or a child goes to that atmosphere of Maharashtra as a
young boy or a child and goes in a completely different atmosphere or Maharashtra
where this inhibition or this disadvantage is not there, then he cannot be said to have that
reservation which will denude the children or the people of Maharashtra belonging to any
segment of that State who may still require that protection. Thus, balancing must be done
as between those who need protection and those who need no protection, i.e., who belong
to advantaged castes or tribes and who do not.

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24. Treating the determination under Articles 341 and 342 of the Constitution to be valid for
all over the country would be in negation to the very purpose and scheme and language of
Article 341 read with Article 15(4) of the Constitution.
25. Reliance can also be placed on Action Committee on Issue of Caste Certificate to
Scheduled Castes & Scheduled Tribes in the State of Maharashtra & Anr where this
hon’ble court observed that “once a notification is issued under clause (1) of Articles 341
and 342 of the Constitution, Parliament can by law include in or exclude from the list of
Scheduled Castes or Scheduled Tribes, specified in the notification, any caste or tribe but
save for that limited purpose the notification issued under clause (1), shall not be varied
by any subsequent notification. What is important to notice is that the castes or tribes
have to be specified in relation to a given State or Union Territory. That means a given
caste or tribe can be a Scheduled Caste or a Scheduled Tribe in relation to the State or
Union Territory for which it is specified”.
26. The Hon’ble Supreme Court in para 15.2 of S.Pushpa extracted the circular dated 6th
January 1993 wherein it was observed that however in case of other benefits like
scholarships, admission to educational institutions etc., the benefits should be confined to
the Scheduled Castes of this Union Territory.
27. When the Parliament restricts the benefit of reservation by inclusion of a caste as a
Scheduled Caste to a State or part of State i.e. certain specified districts in a State, the
Court cannot express any opinion as to its correctness. Hence, as regards the inclusion of
caste “Mochi” in the list of Scheduled Castes within a particular area as per Constitution
(Scheduled Castes) Order (Second Amendment) Act, 2002, it was held that it was not for
the Court to render any opinion in regard to the correctness of the same. This was held in
the case of Shree Surat Valsad Jilla K.M.G. Parishad v. Union of India and Ors.
(2007) 5 SCC 360
28. The Apex Court in Welfare Association vs Union of India and Others], W.A.No.1257
of 2015 [Minor. K.R.Shanmuheshwar vs Union of India and Others] and
W.P.No.19558 of 2015 [Sunitha vs State rep.by Secretary to the Government, Union
Territory of Pondicherry, Pondicherry] reiterated that the legal position that where a
Scheduled Caste person migrates from one State or Union Territory to another, he can

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 claim to belong to the Scheduled Caste or Scheduled Tribe only in relation to the
State/Union Territory from which he has migrated.
29. As per the decision of the Hon’ble Supreme Court in Puducherry S.C., People Welfare
Association vs. Chief Secretary to Govt. Union Territory of Pondicherry and Ors
2014 (9) SCC 236, a resident of Union Territory of Pondicherry will be entitled to the
benefit of reservation in Puducherry, if the person belongs to one of the specified
community in the Constitution (Pondicherry) Scheduled Caste Order 1964. 
30. In Bir Singh vs Delhi Jal Board and Ors , (2018) 10 SCC 312 the question was referred
to a Bench of 5 Judges of the Hon’ble Supreme Court  By majority it held as follows:-
The expressions “in relation to that State or Union Territory” and “for the purpose of this
Constitution” used in Articles 341 and 342 of the Constitution of India would mean that
the benefits of reservation provided for by the Constitution would stand confined to the
geographical territories of a State/Union Territory in respect of which the lists of
Scheduled Castes/Scheduled Tribes have been notified by the Presidential Orders issued
from time to time. A person notified as a Scheduled Caste in State ‘A’ cannot claim the
same status in another State on the basis that he is declared as a Scheduled Caste in State
‘A’. (para 30)
31. Ultimately, Hon’ble Mrs.Justice R.Banumathi in her concurring view observed as under:
If the reservation to the Scheduled Castes and Scheduled Tribes are to be extended to all
categories of Scheduled Castes and Scheduled Tribes all over India or to the migrants
then there is every possibility of the Scheduled Castes and Scheduled Tribes of other
developed States and Union Territories squandering reservations to the Scheduled Castes
and Scheduled Tribes who are disadvantaged in the respective States/Union Territories
including Union Territory of Delhi. If this is permitted, it would defeat the very object of
providing reservation to the disadvantaged Scheduled Castes and Scheduled Tribes in a
particular State or Union territory. The enabling provision of Article 16(4) of the
Constitution has to yield to the constitutional scheme of Articles 341 and 342 of the
Constitution.(para75)
32. As far as reference to the Constitution (Scheduled Caste) Order, 1950 in the impugned
certificate was concerned, it is obviously not correct as Community Certificate for

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 persons residing in Puducherry can be issued only under the Constitution (Scheduled
Caste) Order, 1964.
33. A person belonging to the SC or ST community of one area, say where he is inhabitant
of, will get reservation rights and benefits given to the SCs or STs community of that area
only and on migration the same person will get excluded from the benefits given to the
SCs or the ST community of the migrated state.
34. The considerations which apply to Scheduled Caste and Tribe citizens who migrate from
state to state, apply equally in respect of those who migrate from a state to a union
territory, in view of the text of Articles 341 (1) and 342 (1), i.e. only those castes and
tribes who are notified in relation to the concerned Union Territory, are entitled to such
benefits. This is reinforced by the Presidential Notification in relation to Union
Territories, of 1951. Only Parliament can add to such notification, and include other
castes, or tribes, in view of Articles 341 (2), Article 342(2) which is also reinforced by
Article 16(3).
35. Differentiation between residents of states, who migrate to states, and residents of states
who migrate to Union Territories would result in invidious discrimination and over-
classification thus denying equal access to reservation benefits, to those who are residents
of Union Territories, and whose castes or tribes are included in the Presidential Order in
respect of 8 LatestLaws.com such Union Territories.
36. Civil Appeal Nos.9935-9937 of 2014 from the decision of the Calcutta High court pertain
to claims made by persons belonging to Uraons and Mundas members of the Scheduled
Tribes communities who have migrated to the Union Territory of Andaman & Nicobar
Island. The High Court rejected the claim of reservation made by the aforesaid migrants
Scheduled Tribes communities confining such benefits to the Scheduled Castes
communities enumerated in the list appearing in the Presidential Order pertaining to the
Union Territory of Andaman & Nicobar Island.
37. In Marri Chandra Shekhar Rao (supra), the Constitution Bench observed that the
expression "in relation to that State" must be read meaningfully and harmoniously. It was
observed that if a member of Scheduled Castes/Scheduled Tribes gets the benefit of that
status throughout the territory of India, the expression "in relation to that State" would
become nugatory. If the special privileges or the rights granted to scheduled castes or

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 scheduled tribes in a particular State are to be made available in all the States and if such
benefits are to be carried from State ‘A’ to State ‘B’ on migration, the mandate of Article
341/342 would get compromised.
38. Such a consequence must be avoided for it is a fundamental rule of interpretation, be it of
a statutory enactment or of the Constitution, that wherever and whenever there is a
conflict between two provisions, the same should be so interpreted as to give effect to
both.
39. If the list of Scheduled Castes/Scheduled Tribes in the Presidential Orders under Article
341/342 is subject to alteration only by laws made by Parliament, operation of the lists of
Scheduled Castes and Scheduled Tribes beyond the classes or categories enumerated
under the Presidential Order for a particular State/Union Territory by exercise of the
enabling power vested by Article 16(4) would have the obvious effect of circumventing
the specific constitutional provisions in Articles 341/342.
40. In this regard, it must also be noted that the power under Article 16(4) is not only capable
of being exercised by a legislative provision/enactment but also by an Executive Order
issued under Article 166 of the Constitution. It will, therefore, be in consonance with the
constitutional scheme to understand the enabling provision under Article 16(4) to be
available to provide reservation only to the classes or categories of Scheduled
Castes/Scheduled Tribes enumerated in the Presidential orders for a particular
State/Union Territory within the geographical area of that State and not beyond.
41. Article 16(4) is only an enabling provision to provide reservation to backward classes.
Clause (4) of Article 16 of the Constitution cannot be made applicable for the purpose of
grant of benefit of reservation for Scheduled Castes or Scheduled Tribes in a State or
Union Territory, who have migrated to another State or Union Territory and they are not
members of the Scheduled Castes and Scheduled Tribes in the State to which they have
migrated. The Presidential Orders made under Article 341 and Article 342 have an
overriding status. The presence of Articles 338, 338A, 341, 342 of the Constitution
clearly shows that it precludes any tinkering or deviation from the list of castes or tribes
notified in the Presidential Order which are reserved for that State or that Union territory.
42. The decision in S. Pushpa case a distinction was found by this Court in the constitutional
status of a Union Territory and a State in relation to the Union/Central Government. The

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 provisions of Article 239 and 239A of the Constitution; Section 3(8) of the General
Clauses Act, 1897 defining ‘Central Government’ and the provisions of the Government
of Union Territories Act, 1963 were considered to arrive at the following conclusion:
“The effect of these provisions is also that the Administrator (Lt Governor of
Pondicherry) and his Council of Ministers act under the general control of and are under
an obligation to comply with any particular direction issued by the President. Further, the
Administrator (Lt Governor of Pondicherry) while acting under the scope of the authority
given to him under Article 239 of the Constitution would be the 46 LatestLaws.com
Central Government.”
43. It is on the aforesaid basis that the concerned Notification/Government Order dated 16th
February, 1974 by which it was provided that Scheduled Castes/Scheduled Tribes
candidates from outside the Union Territory of Pondicherry should also be considered for
appointment to posts reserved for Scheduled Castes/Scheduled Tribes in the Union
Territory Administration. The Union Territory of Pondicherry, as on date, stands out as
sole Union Territory which has a Legislature and Council of Ministers, apart from Delhi.

BALWANT SINGH V UNION OF INDIA CASE OVERVIEW.

1. The present writ petition has been filed under Article 32 of Constitution of India by a
present death row convict raising important issue relating to violation of fundamental
rights under Article 21 ensuing from inordinate delay of more than 08 days caused in

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 deciding the mercy petition dated 25.03.12 filed under Article 72 of Constitution of India
and resultantly for the issuance of appropriate writ order or directions commuting the
sentence of death awarded to him to imprisonment of life.
2. On 31.08.95, A bomb exploded in the porch of the Punjab & Haryana Civil Secretariat,
Chandigarh in which the then Chief Minister of the State of Punjab died along with 16
other persons. On the same day i.e. 31.08.95 FIR No. 96/95 was registered at Police
Station North, Chandigarh under Section 302/307/120-B of Indian Penal Code, 1860 and
Sections 3 and 4 of the Explosive Substances Act. On 01.09.95 Later on investigation of
the case was transferred to Delhi Special Police Establishment (C.B.I) vide Ministry of
Home Affairs, Government of India, New Delhi letter dated 31.08.95 and, the case was
re-registered as RC No. 9(S)/95- SIU.V/CBI/SIC.U/New Delhi.
3. On 14.01.96 The petitioner was named as one of the accused in the FIR along with 15
others. He was arrested on 14.01.96 and, was produced before the learned Addl. Chief
Metropolitan. On 27.07.07 learned Additional Sessions Judge, Chandigarh vide I
Judgment dated 27.07.07 in Session Case No. 2-A of 1995 held, amongst other accused,
the petitioner, guilty and convicted him for commission of offences u/Ss 302, 307, 109
read with s. 120-B IPC and s 3(b), s. 4(b)(ii) and s. 5(b) read with s. 6 of the Explosives
Act and, ordered him, death sentence in addition to rigorous imprisonment.
4. The petitioner did not challenge the judgment of the learned Additional Sessions Judge,
Chandigarh, however, the CBI had filed Murder Reference No. 6 of 2007 before the
Hon'ble High Court of Punjab & Haryana at Chandigarh for confirmation of death
sentence awarded to I pe petitioner and Jagtar Singh Hawara. On the other hand, Jagtar
Singh Hawara - another co-accused who was also I convicted for the same offences as the
petitioner and was j also awarded death sentence, had challenged the judgment / dated
27.07.07, by way of filing Criminal Appeal No. 731- DB of 2007.
5. That the petitioner has undergone almost a total of 25 years in custody. His mercy
petition, which was filed under Article 72 of the Constitution of India before the Hon'ble
President on 25.03.12 is pending now before the Hon'ble President for more than 08
years with sufficient cause of reasons.
6. The petitioner’s contention is that the mercy petition was filed on 25.03.12 and there has
been continuous delay in disposal of petition without any valid and legal principles.

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 However, no decision has been made to him regarding this despite the fact that a decision
to commute death sentence of petitioner into life has already been taken vide letter dated
27.09.19 issued by the Deputy Secretary, Wo Home Affairs with the approval of
competent authority.
7. It is relevant to mention here that the petitioner did not challenge the Judgment dated
12.10.10 of the Hon'ble High Court by way of filing an Appeal before this Hon'ble Court
even though both the State as well as the other co accused sentenced to life imprisonment
has filed their appeals viz.. Criminal Appeal No. 2277 of 2011 - State through CBI v
Jagtar Singh Hawara and Criminal Appeal No. 1464 of 2011 - Laqiwinder Singh @
Lakha v State through CBI which are pending before this Hon'ble Court.
8. The death reference preferred by the Trial Court in respect of the two convicts sentenced
to punishment by death [Balwant Singh Rajoana (petitioner) and Jagtar Singh Hawara]
was considered in High Court together with other appeals.
9. The High Court vide its common judgment dated 12.10.2010 affirmed the conviction
and sentence of punishment by death imposed on the petitioner by the Trial Court.
However the High Court reduced the death sentence awarded to Jagtar Singh Hawara by
the Trial Court to imprisonment for Life. (pg 34,35 of the Writ)
10. The said judgment of Punjab & Haryana High Court dated 12.10.2010 in Murder
Reference No. 6/2007 & Criminal Appeal No. 731-DB/2007 is already attached and filed
as Annexure: P-1 at (Pg 31-210 of the Writ)
11. It is important to mention here that on 22.06.2011 Lakhwinder Singh has filed Criminal
Appeal No. 1464/2011 in the Hon’ble Supreme Court against the order dated 12.10.2010
of the High Court, which is pending final hearing.
12. On 17.10.2011 CBI has filed Criminal Appeal No. 2277/2011 in the Hon’ble Supreme
Court against the order dated 12.10.2010 of the High Court commuting the death
sentence to imprisonment for life in respect of Jagtar Singh, which is pending final
hearing.
13. The petitioner herein has not filed any appeal to the Supreme Court against the order
dated 12.10.2010 of the High Court. Also that the Secretariat of the Hon’ble President of
India on 27.03.2012 forwarded the Mercy Petitions seeking clemency of Hon’ble
President of India under Article 72 of the Constitution of India on behalf of the convict

20 | P a g e
 Balwant Singh Rajoana to the Ministry of Home Affairs received from: (i) Delhi Sikh
Gurdwara Management Committee, New Delhi dated 26.03.2012, (ii) Shiromany
Gurudwara Prabandhak Committee, Amritsar, Punjab dated 25.03.2012 (iii) United Sikh
Mission, California, USA dated 26.03.2012.
14. Also keeping in view the above instructions, it was decided that the execution of the
death sentence in case of Balwant Singh Rajoana (petitioner) shall not take place till the
Supreme Court decision in the Criminal Appeal No. 2277/2011 and Criminal Appeal No.
1464/2011 or the orders of the President on the said mercy petition; whichever is later.
The decision was conveyed to Principal Secretary Government of Punjab by Ministry of
Home Affairs, Government of India vide letter No. 14/1/2012-Judl. Cell dated
28.02.2012.
15. although the petitioner has not appealed to the Supreme Court against the High Court
order, the Supreme Court in a catena of cases has held and consistently extended the
benefit of the order passed in appeal preferred by one accused under Article 136 of the
Constitution also to those accused who had not preferred the appeal against their
conviction. It has been held in Deep Narayan Chourasia v. State of Bihar, (2019) 13
SCC 153 that The Constitution Bench in Durga Shankar Mehta v. Raghuraj Singh
[Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520] examined the question as
to whether the powers conferred upon this Court under Article 136 of the Constitution
can be exercised suo motu to meet the ends of justice in favour of non-appealing accused.
The powers given by Article 136 of the Constitution are in the nature of special or
residuary powers which are exercisable outside the purview of ordinary law, in cases
where the needs of justice demand interference by the Supreme Court of the land. The
Article itself is worded in the widest terms possible. … The Constitution for the best of
reasons did not choose to fetter or circumscribe the powers exercisable under this Article
in any way.
16. In the case of Harbans Singh v. State of U.P., (1982) 2 SCC 101 three persons were
sentenced to death by a common judgment and, regretfully, each one eventually met with
a different fate. One of those three persons, Jeeta Singh, who did not file any review
petition or writ petition in Supreme Court, was executed on October 6, 1981. The other
person, Kashmira Singh, succeeded in having his death sentence commuted into life

21 | P a g e
 imprisonment. The petitioner Harbans Singh was to be executed on the same day on
which Jeeta Singh was executed but, fortunately, he filed the writ petition on which
Supreme Court passed an order staying the execution of his death sentence. Then a 3
judge bench of the Supreme Court observed that the course which the case has taken
Y.V. Chandrachud, C.J. (for himself and Desai, J.) stated, the petitioner and the two other
co-accused were sentenced to death by a common judgment. From the facts it was clear
that no distinction at all can be made between the part played by Kashmira Singh on the
one hand and the petitioner on the other. Since Kashmira Singh's death sentence was
commuted by this Court, it would be unjust to confirm the death sentence imposed upon
the petitioner. That will involve the Court as well as the authorities concerned in the
violation of rudimentary norms governing the administration of justice. Were he to
approach this Court like the petitioner, the sentence imposed upon him would have been
commuted into life imprisonment because no distinction could have been made between
his case and that of Kashmira Singh whose sentence was commuted prior to the execution
of Jeeta Singh.
17. Even in the landmark judgement of Pawan Kumar v. State of Haryana, (2003) 11 SCC
241 the Supreme Court held that while hearing the appeal of other accused, in case the
Court came to the conclusion that no conviction of any accused is possible meaning
thereby the non-appealing accused as well whose conviction had attained finality, no
appeal having been preferred against the High Court judgment, the benefit of that
decision must be extended to the non-appealing accused in spite of the fact that he has not
challenged the judgment of the High Court upholding his conviction as this Court set up a
judicious precedent for the purpose of averting miscarriage of justice in similar situations.
18. Thus the Supreme Court has laid down a judicious principle that even in a case where one
of the accused has not preferred an appeal, or even if his special leave petition is
dismissed, in case relief is granted to the remaining accused and the case of the accused,
who has either not appealed or whose special leave petition has been dismissed, stands on
the same footing, he should not be denied the benefit which is extended to the other
accused. That the above principle has been re-iterated by a 2 judge bench of the Supreme
Court speaking through B.P. Singh, J. in Gurucharan Kumar v. State of Rajasthan,

22 | P a g e
 (2003) 2 SCC 698 and by a 3 judge bench of the Supreme Court speaking through Dipak
Misra, J. in Mahendra Singh Dhoni v. Yerraguntla Shyamsundar, (2017) 7 SCC 760.
19. It is to be submitted that the Criminal Appeal No. 2277/2011, Criminal Appeal No.
1013/2013 and Criminal Appeal No. 1464/2011 is pending final hearing before the
Supreme Court. That it is submitted that the mercy petition in respect of the petitioner
will be processed after the Hon’ble Supreme Court delivers its judgment in above-
mentioned Criminal Appeals.
20. Questions - whether the powers conferred upon this Court under Article 136 of the
Constitution can be exercised suo motu to meet the ends of justice in favour of non-
appealing accused.

23 | P a g e
 Date Event

31.08.1995 At 5:10 pm a bomb blast took place in Punjab and Haryana Civil Secretariat in which
17 persons were killed including the then Chief Minister of Punjab S. Beant Singh
and several others were injured. The FIR was registered on 31.08.1995 in P.S. Sector
– 3, Chandigarh. On the same day, the case was transferred to Central Bureau of
Investigation (CBI). several persons were put on trial which included the petitioner
(Balwant Singh Rajoana), Jagtar Singh Hawara, Lakhwinder Singh, Gurmeet Singh
and Shamsher Singh and Nasib Singh amongst others.

27.07.2007 Trial court convicted the petitioner alongwith Jagtar Singh Hawara, Gurmeet Singh,
Lakhwinder Singh, Shamsher Singh and Nasib Singh u/s 302 IPC r/w S. 120B IPC as
well as u/s 307 r/w S. 120B of IPC as well as u/s 306 r/w S. 109 r/w 120B of IPC as
well as u/s 3(b) r/w S.6 of the Explosive Substances Act 1908 as well as u/s 4(b)(ii)
r/w S.6 of Explosive Substances Act 1908 as well as u/s 5(b) r/w S.6 of Explosive
Substances Act 1908.

Balwant Singh Rajaona (petitioner) did not file an appeal to the High Court against
his conviction and sentence. That a Murder Reference No. 6/2007 of Jagtar Singh
Hawara and Balwant Singh Rajoana (petitioner) was filed before the Punjab &
Haryana High Court.

12.10.2010 The High Court decided the Murder Reference No. 6/2007 of Jagtar Singh Hawara
and Balwant Singh Rajoana (petitioner) and Criminal Appeal No. 731-DB/2007 of
Jagtar Singh Hawara, Lakhwinder Singh, Gurmeet Singh and Shamsher Singh vide a
common judgment dated 12.10.2010 @pg 31-210

12.10.2010 The High Court vide its common judgment dated 12.10.2010 affirmed the conviction
and sentence of punishment by death imposed on the petitioner by the Trial Court.
However the High Court reduced the death sentence awarded to Jagtar Singh Hawara
by the Trial Court to imprisonment for Life.

22.06.2011 Lakhwinder Singh has filed Criminal Appeal No. 1464/2011 in the Hon’ble Supreme
Court against the order dated 12.10.2010 of the High Court, which is pending final
hearing

17.10.2011 CBI has filed Criminal Appeal No. 2277/2011 in the Hon’ble Supreme Court against

24 | P a g e
the order dated 12.10.2010 of the High Court commuting the death sentence to
imprisonment for life in respect of Jagtar Singh Hawara, which is pending final
hearing

25 | P a g e
04.12.2012 Jagtar Singh Hawara has filed Criminal Appeal No. 1013/2013 in the Hon’ble
Supreme Court against the order dated 12.10.2010 of the High Court, which is
pending final hearing.

25.03.2012 Mercy Petition dated 25.03.12 filed before the Hon’bIe President of India @pg211-
230

27.03.2012 Secretariat of the Hon’ble President of India forwarded the Mercy Petitions seeking
clemency of Hon’ble President of India under Article 72 of the Constitution of India
28.03.2012
on behalf of the convict Balwant Singh Rajoana to the Ministry of Home Affairs. as
per guidelines/instructions of the Ministry of Home Affairs on “Procedure Regarding
Petitions For Mercy in Death Sentence Cases” dealing with the mercy petition it was
decided that the execution of the death sentence in case of Balwant Singh Rajoana
shall not take place till the Supreme Court decision in the Criminal Appeal No.
2277/2011 and Criminal Appeal No. 1464/2011 or the orders of the President on the
said mercy petition; whichever is later. The decision was conveyed to Principal
Secretary Government of Punjab by Ministry of Home Affairs, Government. @pg
231-232

Although the petitioner has not appealed to the Supreme Court against the High Court
order, the Supreme Court in a catena of cases has held and consistently extended the
benefit of the order passed in appeal preferred by one accused under Article 136 of
the Constitution also to those accused who had not preferred the appeal against their
conviction. Deep Narayan Chourasia v. State of Bihar, (2019) 13 SCC 153; Harbans
Singh v. State of U.P., (1982) 2 SCC 101; Akhil Ali Jehangir Ali Sayyed v. State of
Maharashtra, (2003) 2 SCC 708 Pawan Kumar v. State of Haryana, (2003) 11 SCC
241

where one of the accused has not preferred an appeal, or even if his special leave
petition is dismissed, in case relief is granted to the remaining accused and the case of
the accused, who has either not appealed or whose special leave petition has been
dismissed, stands on the same footing, he should not be denied the benefit which is
extended to the other accused. That the above principle had been re-iterated in
Gurucharan Kumar v. State of Rajasthan, (2003) 2 SCC 698 and Mahendra Singh

26 | P a g e
 Dhoni v. Yerraguntla Shyamsundar, (2017) 7 SCC 760.

The mercy petition in respect of the petitioner will be processed after the Hon’ble
Supreme Court delivers its judgment in above-mentioned Criminal Appeals.

SEALED COVER PROCEDURE

 When an employee’s conduct is subject matter of investigation, or the Government

servant is under cloud; in order to gather evidence, to evaluate it and to draw
controvertible inference that a definable misconduct has been committed, substantial time
period is required during which the case of the employee may come for consideration for
promotion. In order to safeguard the interests in the matter of promotion and confirmation
of Government servant, charged under three categories discussed hereinafter, the sealed
cover procedure is adopted.
 They have to take care of the promotion of its employees but when a special situation like
any disciplinary action or criminal prosecution against the government employees arises
then the promotion process of the employee is affected. In such a situation, laying off the
staff is not the correct step or denying promotion to such employees merely on allegation
may seem like an injustice to employees. As our justice system follows “Innocent until
proven guilty” the same should be applied to these situations as well. 
 Sealed cover promotion means the delay/abeyance in promotion of a government
employee until the result of any pending disciplinary enquiry or criminal prosecution
against the employee is out. In simple words, it means that when a government employee
faces any disciplinary or criminal action then his promotion is delayed until the result of
such enquiry. 
 The Office Memorandum dated 3 November 1958 introduced this concept of sealed
cover promotion. Office memorandum is basically a communication issued by an
appropriate authority stating the policy or decision of the government. This was made in
order to prevent any adverse effect on an employee promotion in future without any fault

27 | P a g e
 on part of him. Though the concept was introduced in 1958, the term ‘Sealed Cover’ was
used for the first time in the Office memorandum dated 31st August 1960.
 On the conclusion of the disciplinary case or criminal prosecution of the government
employee which result in dropping the allegation against him, then only the sealed cover
or covers consisting of findings of DPC should be opened. If the employee is completely
exonerated, then the employee gets the benefit of seniority and fixation of pay from the
date he otherwise would have been promoted if the sealed cover procedure was not
adopted.
 To ensure that the disciplinary action or criminal prosecution against the employee is not
unduly prolonged for a long time,the appointing authority should review
comprehensively the cases of such employee, whose suitability for promotion has been
kept in sealed cover on expiry of 6 months from the date of convening the first DPC
which had assessed the employee suitability for promotion. The review covers the
progress in the case of the employee and further measures to be taken for completing the
case.

What is an ad-hoc promotion

In some cases, the disciplinary case or criminal prosecution against the government employee
does not conclude even after expiry of  2 years from the date of meeting of the first DPC. In such
situation, the appointing authority may allow ad-hoc promotion keeping in view certain aspects-

 If the promotion of the officer is against the public interest;

 If the charges against the employee are grave enough to deny promotion;
 If the case is likely to be concluded in the near future;
 If the delay in the case has  been directly or indirectly caused by the concerned
government employee by his act; and

28 | P a g e
  If the government employee may misuse the official position occupied after ad-hoc
promotion for affecting the course of disciplinary case or criminal prosecution against
him.

If the appointing authority is satisfied that the ad-hoc promotion to the employee would not be
against any public interest, then his case is placed before the DPC to decide whether the
employee is suitable for ad-hoc promotion. DPC assesses the suitability without taking into
consideration the pending case against the employee. However, while allowing the ad-hoc
promotion of the employee, the employee is made aware of the fact that ad-hoc promotion will
not confer any regular promotion and promotion should be till “until further orders”. The
government reserves the right to cancel the ad-hoc promotion.

When does sealed cover procedure take place.

 The  Departmental Promotion Committee (DPC) carries out the function to check if the
concerned government employee is suitable for promotion. The findings of DPC are then
not disclosed and are put under a sealed cover.
In the below mentioned situations, the Departmental Promotion Committee has to be notified
about the promotion bound employee-

 If the employee of the government is under suspension,

 If a charge sheet has been issued and the disciplinary proceeding are pending on the
government employee, and
 If any prosecution for criminal charge is pending on the government employee.

 This sealed cover is superscribed stating that the sealed cover should not be
opened till the termination of disciplinary case or criminal prosecution against
the government employee. It is also mentioned in the Office memorandum that
the same process needs to be followed by subsequent DPC till the result of
disciplinary or criminal prosecution against the government employee is

29 | P a g e
 concluded. Till the findings are kept in sealed cover, the vacancy is filled on a
temporary basis.
 Sealed procedure cannot be adopted by reviewing DPC if there was no charge
(Disciplinary/criminal prosecution) pending against the government employee
when the original DPC met. This was notified in an Office memorandum dated
21 November 2002.
 In the Delhi Jal Board v. Mahinder Singh, it was held that second departmental
enquiry after the exoneration in first enquiry would not affect the promotion of
the employee and thus findings of the sealed cover should be followed.
 Further as per memorandum dated 19th January 2017, it was stated that the
sealed cover may be opened if the employee is acquitted by the trial court in a
criminal case and the order is not stayed by high court.

Case laws related to sealed cover promotion

Union of India v. K.V. Jankiraman

This case was related to the issue of  arrears of salary that has to be paid to the government
employee if he has been completely exonerated. The tribunal on this issue had agreed that salary
arrear should be given from the date of promotion of the employee if there was no sealed cover
promotion for the employee. However this decision was reversed in the case by the Supreme
Court which held that no salary arrear has to be paid and the employee would get all benefit 
from the date after getting completely discharged from the charges against him.

Delhi Jal Board v. Mohinder Singh

In the above case, it was held that the sealed cover prepared by DPC should be opened and the
employee should be given the benefit of promotion as per the recommendation of DPC
notwithstanding the pendency of a later disciplinary case. Thus, if an employee is discharged
from the charges in the first enquiry and if his promotion has been acted upon then the benefits
cannot be taken back.

30 | P a g e
G.S. Siddaraju v. KSRTC

In the case, the petitioner claimed to be the senior most officer in his cadre. He  wanted the order
of promoting his junior to the post of divisional mechanical engineer to be quashed by the court
and to promote him for the said post. However it was found that the petitioner promotion was
being assessed under sealed cover promotion due to several instances of misconduct by the
employee. It was held that once the petitioner is exonerated of charges then only he can be
promoted based on the findings of the DPC.

Sundaran M v. State of Kerala

In the case, the petitioner was an assistant sub-inspector of police. As per him he was denied
consideration for promotion for the post of sub-inspector on account of pendency of a vigilance
case against him. The court held that the sealed cover promotion should be adopted for assessing
the suitability of the officer for the post. The court also stated  that the petitioner should not be
disqualified for consideration on grounds of pendency of a vigilance case.

WHAT WILL HAPPEN IF SEALED COVER IS OPENED ?

In case the sealed cover is opened then the officiating agreement is terminated and the
exonerated employee gets the benefit of seniority and the fixation of his pay from the date his he
otherwise would have been promoted if sealed cover was not adopted.

Case law - Union of India v. K.V. Jankiraman

This case was related to the issue of  arrears of salary that has to be paid to the government
employee if he has been completely exonerated. The tribunal on this issue had agreed that salary
arrear should be given from the date of promotion of the employee if there was no sealed cover
promotion for the employee. However this decision was reversed in the case by the Supreme

31 | P a g e
Court which held that no salary arrear has to be paid and the employee would get all benefit 
from the date after getting completely discharged from the charges against him.

To, Dated:09.11.2020

M/s AZAFRAN INNOVACION LTD.

DISHMAN CORPORATE HOUSE

ISCON-BOPAL ROAD AMBELI AHEMDABAD

GUJARAT-380058

PH. 18001027797

Legal Notice

Sir/Madam,

Under the instructions from and on behalf of my client, Mr Shashi Bala Proprietor of
M/S Shri Shashiraj Group, Mohali, Punjab. I do hereby serve upon you the following legal
notices-

1. That my client is a well-qualified person and pursuant to completing his educational

qualifications got good positions in a number of reputed organizations including your
organization i.e. Azafran Innovacion Ltd.
2. That you the noticee “Azafran Innovacion Ltd “ is an established organic skincare group
having head office at Ahmedabad, Gujarat and hiss regional offices Pan-India.
3. That my client was offered the position of “Distributor” in your organization based at
Mohali.
4. That my client accepted your offer and joined your organization as desired by you as an
authorized distributor. Pursuant to joining he delivered his best services with utmost

32 | P a g e
 sincerity, devotion and commitment and there was no complaint against him from any
corner of the organization.
5. That his work has always been appreciated by his superiors but suddenly due to the
outbreak of COVID-19 Pandemic there has been problems everywhere and certainly the
business was adversely affected of every organization and it was advised to the
employees to work from home.
6. That my client was also no exception to this and as directed he delivered his best services
to the organization to the utmost satisfaction of his superiors while performing all his
work from his home during lockdown.
7. That suddenly vide your email/ letter dated my client received termination of all
services leave till further notice with immediate effect without any prior notice or
information stating that it is the best option available to the employer.
8. That no notice was ever served on my client before taking this drastic step of asking my
client to proceed and no procedure under the law was followed by you which has
shattered the life of my client rendering immense mental torture and financial crisis
during the lockdown period.
9. That it was the duty of the employer to safeguard the interest of his employees and no
Model Employer can ever do this illegal and unwarranted act which is prejudicial to the
interest of my client since it was an immediate action.
10. That my client sent a number of emails to the company in the month of May 2020 to
return his hard earned money, and that they are paying Godown rent from 9-10 months
and High Bank Interest on the same but to his utter surprise there was no response from
the company.
11. That he has been taking care of all products as mentioned in the agreement and has been
paying rent for the same.
12. That the company has to take back the products which are unsaleable and the company
according to the agreement must issue a credit note in the favour of the distributor that is
my client. My client has already mailed you regarding all this.
13. That as mentioned in the rights of the company in the agreement the company has the
right to take back the remaining products from my client or allow him to transfer them to
the third party.

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In Oriental Insurance Company Limited Vs. Nanjappan and others and in Swaran Singh (2nd
supra), when the Insurance company pleaded that the terms and conditions of the policy are
violated by the insured, the initial onus of proof is on the Insurance Company to prove such
violation of terms and conditions of the policy, which amounts to fundamental breach of terms
and conditions of the policy.

Oriental Insurance Co. Ltd., through Divisional Manager Vs Mandabai Wd/o. Bhaurao
Natkar & Ors The next contention of the learned Counsel for the Insurance Company is that
the offending vehicle was being driven by respondent No. 4 after consuming alcohol and the
evidence of Dr. Tikait would also show that the driver was in a state of drunkenness at the time
of his medical examination and, therefore, there was breach of terms and conditions of the
insurance policy. This contention also cannot be accepted for the simple reason that there is no
specific condition mentioned in the original insurance policy produced on record by the
Insurance Company and secondly there is no evidence to show that the respondent No. 3.owner
of the motor vehicle had placed the vehicle in the possession of the driver who was drunk before
the accident. There is no evidence to show that the owner had a remote knowledge that the driver
was driving the vehicle under the influence of alcohol. Hence, it is not possible to accept that
there was breach of terms of conditions of insurance policy.

 It is true that evidence has been brought on record that the respondent No. 4 was driving
the vehicle on the relevant date and time and subsequently when he was medically
examined the doctor found that he had consumed alcohol and he was under the influence of
alcohol. But then that does not mean that the driver had consumed the alcohol prior to
driving of the vehicle or during the course of the driving or after finishing the driving.
However, even if it is presumed that the driver had consumed the alcohol and was driving
the offending vehicle under the influence of alcohol, that per se would not be sufficient to
show that the owner of the motor vehicle knowing full well that the driver was drunk,
placed the vehicle in possession of respondent No. 4 for the purpose of driving. In such
circumstances, it is not possible to accept that there was breach of the terms and conditions
of the insurance policy because the driver had no nexus with the terms and conditions of
the insurance policy". Stated in the case of Sri Srinivas vs The Oriental Insurance Co.Ltd.

34 | P a g e
 While the court accepted all the contentions of the counsel for petitioner and the case was
held in their favour. Reliance was placed upon judgments such as  Skandia Insurance Co.
Ltd. v. Kokilaben Chandravandan etc.

ORDER 12 RULE 6 CPC JUDGEMENTS.

 Order XII Rule 6 of the CPC reads as under:

"  Rule 6.  Judgment on admissions.____(1) Where admissions of fact have been
made either in the pleading or otherwise, whether orally or in writing, the Court
may at any stage of the suit, either on the application of any party or of its own
motion and without waiting for the determination of any other question between the
parties, make such order or give such judgment as it may think fit, having regard to
such admissions."

1. Martin Burn Information Technology Pvt. Ltd. v. Dipankar Banerjee & Anr. 2015.

In this case a lease was granted to a pvt ltd company and the construction work was started. After
the completion of the construction permission was granted to the lessee by the lessor to demise a
portion of the building by way of sub lease in favour of the defendant. Further payment in
instalments was made to the plaintiff. On or about 21st April, 2014, a draft agreement for sub-
lease was submitted by the defendant to the plaintiff from which it transpired that (a) there was
no sub-lease in favour of the defendant; (b) there was no demarcation of the area in respect
whereof the defendant could exercise its right; (c) the area allotted to the plaintiff could only be
used for the purpose of IT Park; and (d) the defendant had already mortgaged the area intended
to be conveyed to the plaintiff with the Federal Bank Ltd. The defendant also insisted upon
payment on account of fees for obtaining permission of the State of west Bengal for transfer of
the area allotted to the plaintiff including costs, charges and expenses for obtaining such
permission. The plaintiff in the circumstances contended that the defendant had no transferrable
right or title in respect of the two office units purportedly allotted to the former. The defendant
was, as such liable to refund the sum of Rs. 1,95,00,000/- together with interest at the rate of
18% per annum.

35 | P a g e
 HELD- The plaintiff was not granted relief under order 12 rule 6 as the admissions made by the
plaintiff were completely vague. As the 3 conditions mentioned above were not in dispute and so
the high court denied from overruling the judgment of the learned lower court.  It is well-settled
that pleadings cannot be dissected like the depositions. It is on that principal that this judgement
was rendered which has no manner of application to the facts and circumstances of the case.

2. S.M. Asif v. Virender Kumar Bajaj reported in (2015) 9 SCC 287

The words in order 12 rule 6 “may” and “make such order…” show that the power under order
12 rule 6 is discretionary and cannot be claimed as a matter of right. Judgement on admission is
not a matter of right and rather is a matter of discretion of the Court. Where the defendants have
raised objections which go to the root of the case, it would not be appropriate to exercise the
discretion under order 12 rule 6 cpc. The said rule is an enabling provision which confers
discretion on the court in delivering a quick judgment on admission and to the extent of the claim
admitted by one of the parties of his opponent's claim.” There can be no quarrel with the
proposition laid down in the aforesaid judgement, but the question remains whether the
discretion was properly exercised in passing the judgement by the learned Trial Court.

3. Uttam Singh Duggal and Co. Ltd. v. UBI reported in (2000) 7 SCC 120. The judgement passed
on admission, in that case was upheld by the appellate Court and a special leave petition was
dismissed holding as follows:-

“As to the object of order 12 rule 6, we need not say anything more than what the
legislature itself has said when the said provision came to be amended. In the Objects and
Reasons set out while amending the said rule, it is stated that “where a claim is admitted, the
court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted
claim. The object of the rule is to enable the party to obtain a speedy judgment at least to the
extent of the relief to which according to the admission of the defendant, the plaintiff is
entitled”. We should not unduly narrow down the meaning of this rule as the object is to
enable a party to obtain speedy judgment. Where the other party has made a plain admission
entitling the former to succeed, it should apply and also wherever there is a clear admission
of facts in the face of which it is impossible for the party making such admission to succeed.

4. Mr SKM CONSTRUCTION V . JVG FINANCE LTD, 2003

36 | P a g e
 This is an application under Order XII Rule 6 of the Code of Civil Procedure, 1908(hereinafter
referred to as `the CPC') by the plaintiff praying for passing of a judgment/decree in the sum of
Rs.17,91,000/- in respect of dishnoured cheques of the defendant.  The plaintiff has filed a suit
for recovery of Rs.15,86,909.69 with interest at 18% per annum.  The defendant in the written
statement filed a counter claim of Rs.4,48,024.00 with interest.The plaintiff's claim in the present
application is based on the 5 dishonoured cheques   which totalled Rs.9 lacs.  The
plaintiff/applicant is claiming with interest a sum of Rs.17,91,000/- in this application as it is the
case of the plaintiff/applicant that the said amount is an admitted amount on account of the fact
that in the written statement liability of the defendant has been admitted and no plea of issuance
of cheque by mistake has been made. thus the conclusion can be drawn that since these cheques
have not been mentioned in the plaint and there is no specific averment of dishonour of the 5
cheques,  in the plaint, and said 5 cheques were filed much later than the plaint in the form of
original documents, the pleadings of the parties cannot be construed to amount to an admission
contemplated by Order XII Rule 6.  In view, the phrase `otherwise'  in Order XII Rule 6 CPC
must obviously   arise from the pleas  enumerated in the plaint even though it may not
specifically find mention in the plaint or may arise even from an averment in the written
statement of the defendant. Consequently the defendants have had no occasion to deal with the
reason for bouncing of the cheques in their written statement.

5. S.M. Asif Vs. Virender Kumar Bajaj where this Court in paragraph 8 has laid down following:-
“ The words in Order 12 Rule 6 CPC “may” and “make such order …” show that the power
under Order 12 Rule 6 CPC is discretionary and cannot be claimed as a matter of right. Judgment
on admission is not a matter of right and rather is a matter of discretion of the court. Where the
defendants have raised objections which go to the root of the case, it would not be appropriate to
exercise the discretion under Order 12 Rule 6 CPC. The said rule is an enabling provision which
confers discretion on the court in delivering a quick judgment on admission and to the extent of
the claim admitted by one of the parties of his opponent's claim.” The power under Order XII
Rule 6 is discretionary and cannot be claimed as a matter of right. In the facts of the present case,
the Trial Court ought not to have given judgment under Order XII Rule 6 on the admission of the
defendant as contained in her application filed under section 12 of the D.V. Act. Thus, there are

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more than one reason for not approving the course of action adopted by Trial Court in passing
the judgment under Order XII Rule 6. The view of the High Court was that the judgment and
decree of the Trial Court given under Order XII rule 6 is unsustainable”.

ON THE BASIS OF THE ABOVE PRINCIPLE RECENTLY IN OCTOBER 2020 A CASE

WAS DECIDED WHERE THE APPEAL UNDER ORDERXII RULE 6 WAS NOT
ALLOWED
THE NAME OF THE CASE IS - Satish Chander Ahuja vs Sneha Ahuja on 15 October, 2020
DECIDED BY SUPREME COURT.

MODEX

 PUNISHMENT FOR FRAUD (S.447)

Any person who is found guilty of fraud shall be punishable with imprisonment for a
term which shall not be less than six (06) months but which may extend to ten (10) years
and shall also be liable to fine which shall not be less than the amount involved in the
fraud, but which may extend to three (03) times the amount involved in the fraud. Where
the fraud in question involves public interest, the term of imprisonment shall not be less
than three (03) years.
 PUNISHMENT FOR FALSE STATEMENT (S.448)
If in any return, report, certificate, financial statement, prospectus, statement or other
document required by, or for the purposes of any of the provisions of this Act or the rules
made thereunder, any person makes a statement —
which is false in any material particulars, knowing it to be false; or
which omits any material fact, knowing it to be material

75(1 Company fails to repay deposits/ interests

)
206 Business  being carried out for fraudulent or unlawful purpose
448 A person who makes a false statement or omits a material fact in any return, report,

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 certificate,   financial statement, prospectus
 Fraudulent misstatements in financial statements will amount to
misrepresentation /unfair trade practice under Regulation 4(2) of SEBI PFUTP
Regulations, 2003.
 Section 206(1) in The Companies Act, 1956
(1) No dividend shall be paid by a company in respect of any share therein, except-
(a) to the registered holder of such share or to his order or to his bankers; or
(b) in case a share warrant has been issued in respect of the share in pursuance of section
114, to the bearer of such warrant or to his bankers.

 THE MODEX HAS VIOLATED CERTAIN CIRCULARS OF STOCK BROKER

REGULATIONS.(SBSB Regulations)
 SEBI circular no. SMD/SED/CIR/93/23321 dated November 18, 1993 and Clauses A (1)
& (3) of the code of conduct prescribed for Stock Brokers under Regulation 9 of SEBI
(Stock Brokers & Sub Brokers) Regulations, 1992 
 SEBI Circular No. MRD/DOP/SE/Cir 11/2008 dated April 17, 2008 inter-alia provides
that brokers should have adequate systems and procedures in place to ensure that client
collateral is not used for any purposes other than meeting the respective clients margin
requirements/pay- ins. Brokers should also maintain records to ensure proper audit trail
of use of client collateral.
 SEBI Circular No. MRD/DOP/SE/Cir 11/2008 dated April 17, 2008 provides that
Brokers should be able to produce the following records during inspection:
(i) Receipt of collateral from client and acknowledgement issued to client on receipt of
collateral.
(ii) Client authorization for deposit of collateral with the exchange / clearing corporation /
clearing house towards margin.
(iii) Record of deposit of collateral with exchange / clearing corporation /clearing house.
(iv) Record of return of collateral to client.
(v) Credit of corporate action benefits to clients.
 SEBI Circular No. SEBI/HO/MRD/DP/CIR/P/2016/13 dated December 16, 2016
provides that the member shall transfer securities from pool account to the respective

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 beneficiary account of their client within 1 working day after the pay-out day. The
securities lying in the pool account beyond the stipulated 1 working day shall attract a
penalty at the rate of 6 basis point per week on the value of securities.
  SEBI Circular No. SEBI/HO/MIRSD/MIRSD2/CIR/P/2016/95 dated September 26,
2016, on enhanced supervision provides uploading of clients' fund balance and securities
balance by the Stock Brokers on Stock Exchange system and specifically provides as
under:
(i) The Stock Exchanges shall put in place a mechanism and ensure that stock brokers
upload the following data on a monthly basis for every client onto each Stock Exchange
system where the broker is a member.
(ii) Exchange-wise end of day fund balance as per the client ledger, consolidated across
all segments and also net funds payable or receivable by the broker to/from the client
across all Exchanges.
(iii) End of day securities balances ISIN wise (as on last trading day of the month) and
End of day securities balances (as on last trading day of the month) consolidated ISIN
wise (i.e., total number of ISINs and total number of securities across all ISINs). Ex parte
ad interim order in the matter of Karvy Stock Broking Limited
(iv) ISIN wise number of securities pledged, if any, and the funds raised from the
pledging of such securities and consolidated number of securities pledged (i.e., total
number of ISINs and total number of securities across all ISINs), if any and the funds
raised from the pledging of such securities.
(v) The stock broker shall submit the aforesaid data within seven calendar days of the last
trading day of the month to the Stock Exchange.
(vi) Each Stock Exchange shall in turn forward the corresponding information to clients
via Email/SMS.

  Also, SEBI Circular No. CIR/HO/MIRSD/DOP/CIR/P/2019 dated June 20, 2019 inter-
alia provides that clients securities lying with the Trading Member(hereinafter referred to
as TM)/Clearing Member (hereinafter referred to as CM) in client collateral account,
Client Margin Trading Securities account and client unpaid securities account cannot be
pledged to the Banks/NBFCs for raising funds, even with authorization by client as the

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 same would amount to fund based activity by TM/CM which is in contravention of Rule
8(1)(f) & 8(3)(f) of Securities Contracts (Regulation) Rules, 1957.

 The acts of MODEX are in violation of Stock Broker Regulations, SEBI circular no.
SMD/SED/CIR/93/23321 dated November 18, 1993, SEBI Circular No.
MRD/DOP/SE/Cir 11/2008 dated April 17, 2008, SEBI Circular No.
SEBI/HO/MIRSD/MIRSD2/CIR/P/2016/95 dated September 26, 2016, SEBI Circular
No. SEBI/HO/MRD/DP/CIR/P/2016/13 dated December 16, 2016, SEBI Circular No.
CIR/MRD/DP/54/2017 dated June 13, 2017, SEBI Circular No.
CIR/HO/MIRSD/MIRSD2/CIR/P/2017/64 dated June 22, 2017 and Circular No.
CIR/HO/MIRSD/DOP/CIR/P/2019 dated June 20, 2019
 23D. Penalty for failure to segregate securities or monies of client or clients.—If any
person, who is registered under section 12 of the Securities and Exchange Board of India
Act, 1992 (15 of 1992), as a stock broker or sub-broker, fails to segregate securities or
moneys of the client or clients or uses the securities or moneys of a client or clients for
self or for any other client, he shall be liable to a penalty not exceeding one crore rupees.]
 15HB.Penalty for contravention where no separate penalty has been
provided.- Whoever fails to comply with any provision of this Act, the rules or the
regulations made or directions issued by the Board thereunder for which no separate
penalty has been provided, shall be liable to a penalty which may extend to one crore
rupees.

 A(2) and A(5) of the code of conduct specified under Schedule II read with
Regulation 9 (f) of SEBI SBSB Regulations
 Liability for monetary penalty. 26. A stock broker or a sub-broker shall be liable
for monetary penalty in respect of the following violations, namely— (xiii)
Failure to segregate his own funds or securities from the client‘s funds or
securities or using the securities or funds of the client for his own purpose or for
purpose of any other client.

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 Brief For Opinion

The Queriest SJVN Limited is a Mini Ratna Company, incorporated on May 24, 1988 under the
Indian Companies Act, 1956 as a joint venture of the Government of India and the Government
of Himachal Pradesh to plan, investigate, organize, execute, operate and maintain Hydro-electric
Power Projects. The company is implementing Hydro-electric Projects in the states of Himachal
Pradesh, Uttrakhand, Nepal and Bhutan and is also involved in the field of Thermal, Solar and
Wind Power Generation. The installed capacity is 1959.69 Megawatt including the India’s
largest 1500 MW NathpaJhakri Hydro Power Station in Himachal Pradesh. At present the

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petitioner’s company is involved in implementing various projects of total capacity of about
4000 Megawatt.

The Queriest awarded EPC contract to Gamesha Renewables Power Private Limited, Chennai
now known as Seimens Gamesha Renewables Power Private Limited, for supply, erection testing
and commissioning of 47.60 MW Khirvire Wind Power Project with its Comprehensive
Operation & Maintenance for 10 Years in the village Khirvire/Kombhalane, dist. Ahmednagar in
the state of Maharashtra comprising three contracts the FIRST CONTRACT of
Rs.271,35,69,432/- for Detailed Design, Engineering, Manufacturing, Testing & supply of
Equipments, SECOND CONTRACL of Rs. 28,25,30,568/- for Arranging required Land, land
development, micro-citing, all statutory approvals, all civil construction works, Erection, Testing
Commissioning — and interconnection with State Grid of wind power in all respect and THIRD
CONTRACT of Rs. 52,19,02,472/- for Comprehensive Operation and Maintenance of the
Project after completion of the stabilization period for 10 years and accordingly issued a Letter
of Award dated 19/10/2012 (“LOA”). The Contract value of EPC & O&M contract for 10 years
altogether amounting to Rs.351,80,02,472/-.

The said EPC contract was divided into three parts wherein FIRST CONTRACT was for supply
of Nacelle, Blade, Tower, Transformer and associated equipment of Wind Electric Generator
complete in all respect, the SECOND CONTRACT

Part I

Generally, in agreements concerning the use and/or transfer of IP, the following clauses are
important:

1. Assignment:

In any IP assignment, there is a clause specifically assigning/transferring the title in the IP from
the assignor to the assignee. This clause must clearly state the extent of the rights that are being

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granted to the assignee. Assignments must contain express language such as "hereby assigns",
which indicates that the assignor is assigning rights in an existing or a future work in the
present.1

Example: "Rights granted– X hereby grants, conveys and assigns to Y all the rights in the
[Work], including without limitation the following exclusive rights throughout the Territory (as
defined in clause ["]) for the Term (as defined in clause ["]) –

- insert a list of all rights in relation to the [Work] that are being assigned -"

Points to remember:

1.1. Work/invention/mark/property: It is advisable for the agreement to have a specific definition

for the work or the invention or other IP that is being assigned. In this way, the assignment
clause can be short and precise without having to define the work/invention that is being
assigned.

1.2. Indicative list of rights: The assignment clause must contain an indicative list of rights, i.e., a
list of ways in which the assignee may use the work/invention. These words are normally
borrowed from the statute but drafted in a manner that is consistent with the intent of the parties.
For instance, in the case of a cinematograph film, one of the rights assigned would be the right to
make, sell, distribute copies of the film and communicate the film to the public.

2. License:

In an agreement where IP is licensed, there is no transfer of title. Therefore, the agreement must
contain a clause demarcating the specific rights of use granted to the licensee. It is advisable to
use clear terms such as "hereby grants a license".

Example: "Grant of License– The Licensor hereby grants to the Licensee a non-exclusive, non-
transferable, non-sub-licensable, non-delegable and conditional license to use in the manner
agreed hereinbelow, the Trademark, solely in relation to the business operations of the Licensee,
within the Territory and for the Term:

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- insert a list of all rights in relation to the trademark  that are being licensed -"

Points to remember:

2.1. Intellectual Property: The IP, whether it is a work/invention or trademark, that is being
licensed must be specifically defined in a separate clause. As stated in 1.1 above, it makes for
easier and cleaner drafting of the license clause.

2.2. Exclusive/non-exclusive: This is the most important part of the license grant which must
clearly indicate whether the license is exclusive or non-exclusive.

2.3. Sublicense/further transfers: If the intention of the parties is that the license remains with the
licensee alone, the clause must specify that the licensee does not have the authority to sub-license
or further transfer the rights granted under the license.

2.4. Indicative list of rights: Given that a license can be far more limited than an assignment in its
scope, it is advisable to include a list of specific uses that are permissible under the license.
Further, the licensor may also clarify that the licensee is not permitted to do anything other than
what is stated in the license.

2.5. The ownership of any IP must be mentioned, and the licensor must have the right to
immediately know when there is a possibility that the IP may have been infringed by a third-
party.

3. Term and termination:

The assignment or license agreement must contain separate clauses defining the term and
instances when the agreement can be terminated.

Examples:

Term:

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a. "The rights assigned herein shall be irrevocable and shall be vested in the assignee for
perpetuity including without limitation, for the full term of copyright protection everywhere in
the world and any and all renewals, extensions and revivals thereof."

b. "This License shall come into effect on the Effective Date and shall remain valid and binding
on the Parties until such time that it is terminated in accordance with clause ["] of this
Agreement."

c. "This License shall come into effect on the Effective Date and shall remain valid for a period
of 5 (five) years from the effective date unless it is terminated in accordance with clause ["] of
this Agreement."

Termination:

"This Agreement may be terminated: a) by mutual agreement of the Parties; or b) on a material

breach of any provision of this Agreement by the other Party, provided however that in case of a
breach capable of remedy, only if the breach is not remedied by the other Party within the
Notice Period. Upon termination: a) either Party shall forthwith hand over to the other Party all
documents, material and any other property belonging to the other Party that may be in the
possession of the Party or any of its employees or agents; b) each Party shall immediately pay
all pending fees or other amounts due to the other Party under this Agreement."

Points to remember:

3.1. Term: The term of the assignment or license can be anything that the parties choose.
However, the outer limit of the grant is determined by the term specified in the statute for the IP.
For instance, the term of a patent is 25 (twenty- five) years from the date of the application
beyond which period the invention enters the public domain.

3.2. Termination: This clause must be drafted with care and caution bearing in mind the
agreement between the parties. Further, if the agreement involves promises that can only be
performed by a specific individual, termination by such party must not be permitted. In any
event, if the assignment is irrevocable in nature, termination must not be permitted unless there is

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a material breach and terminating party must be required to serve adequate notice. Once the
agreement is terminated, the IP will revert to the assignor or the licensor, as the case may be.
Any IP that still remains with the transferee must be returned to the transferor or destroyed
(when appropriate) upon termination.

4. Territory:

The territory for which the IP is assigned is crucial to be specified in the agreement. The same IP
can be assigned or licensed to two or more separate entities for use and exploitation in different
territories. If this is not clearly specified in the agreement, the territory might be deemed to be
India as a whole. This would render any subsequent assignment or license impossible to carry
out.

Example: "The assignment/license granted herein shall be exercisable within the territory of

India ("Territory")."

5. Consideration:

The agreement must contain a clause on consideration or fees/payment to be made for transfer of
the IP. This clause must define the manner in which payments will be made by the assignee or
licensee. There are several ways in which payment terms can be structured; some of the most
common modes are discussed below:

5.1. Lumpsum payments: IP rights can be granted in exchange for a lumpsum payment where
the grantee can pay a specific sum of money in the manner prescribed under the agreement. This
amount can be paid either as a single payment or in instalments.

Examples:

a. "In consideration of Licensor granting a license to use the Intellectual Property in terms of
this Agreement, the Licensee shall pay a monthly fee of Rs. ["] (["]) to the Licensor ("License
Fee").

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The Licensee shall pay the License Fee to the Licensor by way of wire transfer, no later than [7
(seven) days] prior to the commencement of each month."

b. "As consideration for all the rights granted and assigned in the Intellectual Property by the
Assignor, the Assignee agrees to pay a sum of Rs. ["] (["]) to the Assignor in the following
manner:

i. Rs. ["] (["]) via -insert mode of payment- on the Execution Date;

ii. The remaining sum of Rs. ["] (["]) via -insert mode of payment- no later than -insert
date-"

Points to remember:

5.1.1. In the event the parties agree on payment in instalments, the agreement must clearly
specify the schedule.

5.1.2. The mode of payments which are acceptable to both parties must be specified.

5.1.3. The agreement must also provide for consequences of delay in payment, if any.

5.1.4. The payments clause must specify the taxes, if any, that are deductible.

5.2. Royalty: In consideration for the rights granted, the assignor or licensor may also require
that royalty be paid. Typically, royalty payments will be a portion of the sales revenue earned by
the use/exploitation of the IP rights granted.

Examples:

a. "In consideration of the rights granted in clause ["], the Licensee shall pay to Licensor a
royalty (the "Royalty") equal to ["]% of Net Sales occurring during the Royalty Term. The
royalty under this clause shall be payable no later than 5 (five) business days after the last day
of every quarter."

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b. "Royalty will accrue upon distribution of any copy of [software] delivered or sold in the
manner specified in clause ["]. Rs. ["]/["]% of the sale price of any copy of [software] shall be
payable as royalty on each copy sold. All accrued Royalty shall be paid to the Licensor within
["] days after the end of each fiscal quarter, which ends on the last day of each of March, June,
September and December. Payments shall be accompanied by a report stating the number of
units of [software] sold/distributed in the relevant quarter, and the calculation of the royalty
payment.

Points to remember:

5.2.1. While royalty is typically represented as a percentage portion of the net sales
revenue, it can be structured in any manner as the parties deem fit.

5.2.2. Royalty must be payable for the royalty term, which can either be for the whole term
of the agreement or only a part of the term.

5.2.3. The schedule for payment must be specific and must always be accompanied by
proper accounts for the relevant period showing the manner in which royalty payments
have been calculated.

5.2.4. The agreement must also provide for consequences of delay in payment, if any.

5.2.5. The payments clause must specify the taxes, if any, that are deductible.

5.2.6. The method and frequency of invoicing must also be included.

6. Representations, warranties and covenants:

Apart from the representations and warranties that are usually included in agreements, including
in relation to capacity and execution, there are certain specific warranties that should be included
in IP related agreements.

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 6.1. The person granting the rights must represent that he has the sole and absolute
ownership of the IP and is therefore entitled to grant rights either by way of assignment or
license.

6.2. The person granting the rights must also represent that the IP in which the rights are
being granted does not infringe any third party's IP rights.

7. Indemnity

The person granting the rights must ordinarily indemnify the other party from any legal
proceedings or costs arising as a result of defective title in the IP or any third-party claims of
infringement. The person granting the rights, especially in a license, must be indemnified against
all illegal and improper uses of the IP including indemnification against any legal proceedings
that may arise as a result of such actions of the grantee.

8. Further assignments:

Depending on the rights being granted and the discussions between parties, the rights that are
being transferred may be further assigned by the parties. Note however, there must be a clear bar
on further assignment of rights and obligations especially when the promises made by the parties
concerned are personal in nature.

9. Standard form clauses:

Other than the specific terms detailed above, all the standard form clauses that find their place in
other agreements must also be included in IP assignments and licenses.

PART II

In this part we will discuss certain specific types of agreements and clauses in relation to
copyrights, patents and trademarks.

1. Copyright:

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1.1. Film-related agreements: The producer of a film is the author of a film. 2 The producer
enters into several agreements including with writers, composers of music, etc. in order to create
various works which will be included in the film. An effective contract between the producer and
other authors such as the music composer, writer, etc. would help avoid any disputes as to the
ownership of the film and the use of other content in the making of the film. The producer also
enters into agreements with financiers to finance the making of the film, and with distributors
and digital partners. Some aspects of these agreements have been discussed below:

1.1.1. Agreement with composer of music: It is industry practice for the producer of a film
to engage the music composer to compose the music and the background score for the
film. Under the Copyright Act, 1957 ("Copyright Act"), the composer is the author of the
musical work. It is often the case that until the release of the film the producer retains the
copyrights in all the musical works by entering into a contract of service with the music
composer.3

The producer, as the owner of the copyright in the musical works under a contract of
service, can either retain all the copyrights or assign the rights to a music label. Usually,
when the producer assigns the rights in the musical works to a music label, the producer,
who is the owner of the film, retains the right to use the sound recording as a part of the
film, and the music label would then hold the rights in the sound recordings and the
underlying musical works, and can commercialize such music through sales or further
licenses. The basic goal here is for the producer to leverage the rights in the music in a
profitable manner.

While this is generally the industry practice, it is legally possible for a composer to retain
the rights in his works. Such an agreement would encompass a limited license from the
composer allowing the use of the musical works in the film by the producer.

1.1.2. Agreement with lyricist: Similar to the composer, the lyricist is also engaged by the
producer to write the lyrics for various songs that are usually part of Indian films.
Copyrights in lyrics, which are literary works as per the Copyright Act, will be retained by

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the producer or transferred by him to the music label. The lyricist is also eligible to receive
unassignable royalty from the use of the lyrics.

Points to remember:

i. To protect the interests of the producer, the agreement with the composer and lyricist
must contain a clause that clearly states that all the IP in the musical and literary works
will belong to the producer.

ii. In appropriate circumstances, it is also prudent to include a clause giving creative

control over the final product to the producer.

iii. As discussed in Section 1.2.2 of the first paper in this series, composers and lyricists
continue to retain unassignable royalty rights in the musical works.

iv. These agreements must contain a clause with specific timelines within which the
composer must deliver the musical works.

1.1.3. Agreement with writers: The producer of a film usually engages more than one
writer to write the story, script, screenplay, dialogues, etc. These works amount to literary
works under the Copyright Act. It has been held by the Madras High Court in Thiagarajan
Kumararaja v. Capital Film Works,4 that the producer of a film has the rights to dub the
film into any number of languages and this right is part of her copyright under Section
14(d) of the Copyright Act. On the other hand, it has also been held that the producer
can remake the film in any number of languages only if she owns the script because
remaking a film would require changes being made to the underlying script. Therefore,
where a producer proposes to remake the film in various languages, apart from permission
to use the script for the making of the film itself, the producer needs to entirely retain the
copyrights in the script in order to be able to remake the film.5

Points to remember:

i. If it is the intention of the producer to make remakes or sequels of the film, it is

advisable for her to ensure that she owns the script. Whether the agreement is a contract of

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service or otherwise, it is prudent to have an IP clause specifically stating that the producer
seeks to own the script.

ii. On the other hand, if the writer owns the script, any remake can only be made with a
license from the writer.

iii. The contract must specify the degree of creative control each party has over the script
or story.

iv. If the producer seeks to own the script in its entirety, she must also ensure this includes
the characters and other distinctive elements of the script.6

v. This agreement must contain a clause with specific timelines within which the writers
must deliver the scripts.

1.1.4. Agreements engaging principal director, actors and other individuals: Under Indian

law, a director of a film does not have any copyrights in any aspect of the film. Therefore,
producers in India can enter into a regular contract of service with the director. There will
be certain circumstances where the director is also the scriptwriter, in which cases there
can be a common agreement which includes the terms in 1.1.3 above and the contain
clauses covering her directorial responsibilities. The director will be remunerated for her
services.

Additionally, there are agreements that the producer enters with actors and other artists.
These agreements will define the roles and responsibilities of the actor and her
remuneration. The actor or other artists typically do not own any of the copyrights in the
content or the character.

1.1.5. Credits clauses under 1.1.1 to 1.1.4: The parties to these agreements must also
approve the manner in which each of these persons is credited in the film.

Example: "The Parties agree that the Composer shall be credited in the film as "Music by
______" by the Producer. The Composer shall have no copyrights in the sound recordings
or the Musical Works in the film by way of such credits."

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1.1.6. Financing agreement/film investment agreement: The producer can enter into
agreements with various persons for raising funds to make a film. These agreements can
be structured in many ways and might in certain cases result in transfer of ownership of IP.
Some types of investment agreements are discussed below:

i. Film investment agreement: The producer and the third-party investor can agree to co-
produce the film. In these cases, the parties must arrive at a revenue sharing arrangement.
The co-producer will also have a share in the IP that is consequential to the extent of
investment.

ii. Rights agreement: The producer can, in exchange for money, grant the financier some
right in the IP. For instance, if the producer seeks an investment of Rupees Fifty Lakhs, he
can grant the dubbing rights, or overseas distribution rights in exchange for the same. Such
agreements work just like assignments or exclusive licenses but are a useful way in which
producers can raise funds.

1.1.7. Theatrical distribution agreement: Producers must also enter into various

distribution agreements with several distributors for distributing the film in theatres in
various territories. Essentially, what the distributor receives under these agreements is a
limited license or assignment to communicate the film to the public through theatrical
distribution. The term of these agreements is limited to the period during which the film
would be distributed in theatres.

Example: "In consideration of the mutual promises, payments and other terms contained
herein, Producer hereby exclusively [assigns/licenses] to the Distributor the right to
communicate the Film to the public only via theatrical distribution in the Territory for the
Term."

1.1.8. Production of television/web-series/other shows/online content: For the production

of any other content, all the agreements described in 1.1.1 to 1.1.8 will be used. However,
the manner in which the IP is shared and owned may differ depending upon the facts and
circumstances of each case. For example, let us say XYZ Pvt. Ltd. is producing a stand-up
comedy special with a prominent comedian Mr. P. The parties can agree that the content

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 will be written, performed and, therefore, owned by Mr. P, and where XYZ Pvt. Ltd. only
takes a commission and a share of the revenue.

1.2. Album production:

1.2.1. Agreements with music composers and lyricists: These agreements are similar to the
agreements described in 1.1.1 and 1.1.2 above. The producer of the sound recording may engage
composers and lyricists and seek to retain the copyrights in the underlying works along with the
sound recording he produces and owns.

1.2.2. Agreement with the singers/other artists: The singers and other artists are usually engaged
under a contract of service to sing in a studio, which performance is recorded, edited and
produced into a sound recording at the instance of the producer. The singer does not own the
copyright in the musical work, literary work or the sound recording itself.

1.3. Digital distribution of copyrighted works: Songs, films or any other copyrighted content

can be distributed and communicated to the public through a variety of digital platforms. Today,
most popular among these are OTT platforms such as Netflix, Prime Video, etc. Typically, these
entities enter into either an exclusive license with the owner of the content for a particular term
and for a specific territory. Since these entities are able to geo-block the content, they avail
territory specific licenses for various titles. Therefore, a TV series that is available in the United
States of America on X OTT service, may instead be available on Y OTT service in India. These
entities do not seek a complete transfer of title typically but restrict themselves to a license for a
specified term.

Points to remember:

i. The agreements must contain a schedule detaining the timeline for delivery of prints and
materials to the platform along with the technical specifications for such materials.

ii. Clauses must specify the manner of use of any trademarks and other artwork belonging to
either party.

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iii. The consideration or license fee can pe paid in a single lumpsum payment or be divided into
instalments.

1.4. Book publishing agreements: These agreements are entered between the authors of books
and publishers. Under the Copyright Act, the author of a literary work has the right to make
copies of her work and sell them. However, such rights are normally transferred to publishing
houses that have the means to mass produce the book and aid in the distribution of the work.
This may also include various formats in physical or digital form. The rights granted could also
include the right to translate the books into various languages. Typically, the author retains the
right to make film/television adaptations of the book.

Example: "The Author grants the Publisher the exclusive right during the Term to reproduce,
print, publish, distribute, translate, display and transmit the Work, in whole and in part, in the
Territory, in such languages and formats as agreed to between the Parties. It is clarified that no
film, motion picture, television, radio, dramatic or other adaptation rights are granted to the
Publisher and the Author can exploit such rights."

Points to remember:

i. Publishing agreements must contain detailed clauses on when the author will deliver the work
to the publisher.

ii. The acceptance of the work for publication is usually left to the discretion of the publisher.

iii. The author gives the publisher the sole and exclusive right to publish and distribute the work.
The author, however, may retain other rights such as the right to translate the work, the right to
make adaptations, the right to make films, etc.

iv. The author is usually paid a certain advance amount on the date of signing of the agreement.
Additionally, royalties may be paid to the author for the sale of each copy of the work payable as
a percentage portion of the net sales revenue earned by the publisher.

v. The onus of receiving any prior approvals for copyrighted works to be included in the book
usually lies with the author.

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 1.4.1. Option Purchase agreements: Such agreements are typically entered into between
the author of the book and a producer. The agreement grants an option to a purchaser to
avail an assignment or a license at a future date to make film/television/digital adaptations
of the book. For example, A, the author of a book, can enter into an option-purchase
agreement with B who wants to make a film-adaptation of the book. The option purchase
agreement will give B a specific timeframe for some groundwork such as testing the
viability of the project, raising funds, etc. At the end of the option period, B can exercise
the option and have the adaption rights assigned or licensed to her. The author is usually
offered an option-fee for the period during which the grantee-purchaser holds on to the
option. Once the option is exercised, the parties can enter into an assignment or a license
agreement as the case may be.

1.4.2. Adaptation agreement: If the film is based on a story or book written by a third-party

upon which the producer seeks to rely, then the producer may avail an adaptation license
from the author of the literary work.

1.5. Software license: In India, software is a subject matter of copyright law. The person writing
and creating the program holds a copyright over it. The software can therefore be licensed by the
owner for use by another entity. Software licenses are normally granted by companies to their
users usually based on a subscription fee model.

Example: "Entity hereby grants the customer a non-exclusive, non-sublicensable, non-

assignable, world-wide license to use the Service solely for the internal business operations of
the customer in accordance with the terms of use specified herein."

1.5.1. Platform licenses for user-generated content: If the software is such that it allows the
creation, storage and dissemination of user-generated content, the entity licensing the
software must also take a license from each user to store and disseminate the user-
generated content. For instance, with applications such as YouTube or TikTok, such a
license would be required from the user. The clause must clarify that the user agrees to a
non-exclusive, non-sublicensable, non-assignable, royalty-free license to be granted to the

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 entity for the use of the content while the user continues to retain all the copyrights in the
content.

1.5.2. Software as a service: Typically, in these agreements, there is an entity that has

developed a software and provides services that aid in the productive use of such software.
The entity enters into an agreement with the customer granting a customer a license to use
the software for its business operations while the entity retains the IP in the software.

Example: "The Company agrees to license and grant access and right to use the
Application to the Subscriber and provide to the Subscriber all other services necessary
for the productive use of the Application, including, initial setup and installation, user
identification, user account and password change management, data import/export,
remote technical support, maintenance, training, backup and recovery, and change
management ("Services") as further set forth in Schedule ["] of this Agreement."

Points to remember:

i. These agreements must contain a clause preventing any reverse engineering of the
software and controlling security breaches. This would also include clauses pertaining to
data security and data protection.

ii. The data that belongs to the customer will continue to belong to her while the
licensor/service provider will continue to own the software.

1.5.3. Software development agreement: In certain cases, one may choose to engage the
services of a third-party software developer to develop a software or product under a
contract of service. For instance, A may have a concept or idea but may not have the
expertise to engineer the product. A can engage the services of B, third-party developer, to
develop the product. B will be remunerated for his services. But A, whose resources
(typically monetary resources as A would bear the operational costs) were expended on
developing the product, will be the owner of the IP in the product.

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 Example: "The Service Provider agrees that all original works that are made by the
Service Provider (solely or jointly with others) using the Company's resources, or any
other assistance that may be provided by the Company, pursuant to this Agreement, are
protectable by copyright as "works made under a contract of service" under the Copyright
Act, 1957.

The Service Provider hereby agrees to transfer and assign all intellectual property rights
that may be developed or created by it pursuant to this Agreement without any claim over
any such work, and waives any other right that the Service Provider may have in law."

1.5.4. Application programming interface ("API") integration agreement: APIs are tools

that permit interaction between various software intermediaries. In API integration
agreements, (i) a party licenses its API (either on an exclusive basis or on a non-exclusive
basis) to another party for integration of its API into the software (in the form of an app or
website), or (ii) two parties propose to integrate their software to create a new product.

Points to remember:

i. In these agreements, there must be a two-way obligation to keep the licensee's

tool/programme and the licensor's API fully functional and usable at all times.

ii. These agreements would also contain clauses on data security, data protection and
covenants on the basis that security breaches will be controlled and monitored.

iii. It must be specified that the integration agreement will not result in any transfer of IP
and each party will continue to hold their IP rights. However, a limited right to use the tool
and the API will be licensed to the other party for the duration of the agreement. In case a
new product is created both parties hold rights in the IP jointly.

2. Trademark:

Trademarks can be assigned or licensed irrespective of whether they are registered or

unregistered trademarks. Generally, all assignments and licenses of trademarks must be in
conformity with the principles and rules under the Trademarks Act, 1999.

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Apart from what is covered in Part I of this article, the following must be noted while drafting
clauses on assignments and licenses of trademarks.

Assignment:

Points to remember:

i. The grant clause in an assignment agreement must clearly specify whether the mark is being
assigned together with the goodwill of the business or not.

ii. Assignment agreements must contain a clause/schedule describing all the trademarks that are
being assigned, and details pertaining to their registration.

iii. The assignor must agree to execute all necessary documents in order to record the assignment
with the Registrar of trademarks under Section 45 of the Trademarks Act.

License:

Points to remember:

i. Prevention of naked licensing: While licensing a trademark, the terms of use need to be

specific and clear. If a license permits the unbridled use of a trademark without any quality
assurance measures in place, such a license amounts to 'naked licensing'. The clause must also
state that the mark can only be used in relation to the goods and services specified in the
agreement. Quality control is essential to protect the interests of both the licensor and the end-
user of the product.

ii. There must be a separate clause defining the uses of the mark by the licensee that are
permitted and uses that are strictly disallowed and not within the ambit of the license.

iii. The agreement must also include a clause stating that no rights in and to the trademarks are
being transferred or assigned by virtue of the license.

iv. The more control the licensor would like to exercise over the use of the mark, the stronger
must be the quality, use and termination clauses of the agreement.

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v. It must be specified that the licensee shall not have the right to further assign or license the
mark to any third-party.

Apart from these issues, transfer of trademarks through assignment and license might involve
larger commercial arrangements that impact the creation, use and transfer of trademarks. Some
of these are discussed below:

2.1. Transfer of trademark under a franchise agreement: Franchisors typically have

proprietary methods of doing business and own trademarks which consumers come to solely
associate with the business of the franchisor. Internationally renowned brands such as
McDonalds or Krispy Kreme follow this business model where their businesses have proprietary
elements which they license to local businesses all over the world. The businesses which acquire
a license of this kind under a franchise agreement will have the right to set up a local unit of the
franchisors business and run it as per the terms of the franchise agreement.

2.1.1. Use of the franchisor's trademark: The main condition as to the use of the

franchisor's trademark is that the franchisee will be permitted to use the franchisor's
trademark in accordance with the terms specified in the franchise agreement. Please note
that the agreement must clarify that this is a limited use license granted to the licensee and
does not result in transfer of ownership. Further, in relation to the franchisor's business, the
franchisee shall not have the right to any mark other than the ones that it is authorized to
use under the franchise agreement.

Example: "The Franchisee agrees that the Franchisor is the sole and exclusive owner of
the TRADEMARKS and has the absolute right to control the Franchisee's use of the
TRADEMARKS. For removal of doubts, the Franchisee agrees and affirms that it has not
acquired any right, title or interest in the TRADEMARKS and that its limited right to use
the TRADEMARKS is governed by the terms of this agreement. Further, the Franchisee
agrees that it shall not register, in its name or in the name of any associated entity or
person, any trademark, logo or domain name that is identical or similar to the
TRADEMARKS."

Points to remember:

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i. The franchisee must not be permitted to take any action against any infringer without the prior
consent of the franchisor. It is best for the franchisor to initiate any legal action as the sole and
absolute owner of the mark.

ii. If the agreement is terminated, any action taken by the franchisee in respect of the trademarks
must revert to the benefit of the franchisor and the franchisee must stop associating itself with the
trademarks of the franchisor.

iii. There must be a clause allowing the franchisor to terminate the agreement if the trademark is
used in a manner that would bring disrepute to the business of the franchisor.

iv. There must be clauses controlling the use of the trademark by the franchisee in advertising
and marketing literature.

1.2. Marketing Agreement: A marketing agreement allows a third-party a limited right to

display the trademarks of the licensor while marketing, advertising and selling products that
belong to the licensor.

Points to remember:

i. This agreement has to specify that the licensor continues to own the trademark and this
agreement does not result in any transfer of ownership.

ii. Such a license must specify the manner in which the trademark is permitted to be used. Any
contravention of such use restriction would amount to a material breach of the agreement.

3. Patent:

Patents can be assigned or licensed for specific purposes meaning that patent rights can be
granted to make, sell or import the subject matter of a patent.

Some specific agreements pertaining to patentable subject matter are discussed below:

3.1. Technology transfer agreement: Technology transfer agreements ("TTA") involve the

licensor transferring its IP and know-how to the transferee for a specific period of time and for a

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specific purpose. A large part of arrangements of this nature would depend on the specific facts
and circumstances of each case. Not everything that is transferable under a TTA will be IP. One
part of the transfer may relate to the licensing of IP such as patents or software for specific
purposes, while the other would include information and know-how. Clauses in relation to the
sharing of information and other know-how are strictly contractual and are secured by having
strong confidentiality clauses in the agreement.

Points to remember:

i. The agreement must define the IP or the technical know-how to be transferred clearly. The
definition must be tightly worded so as to cover only what is necessary, failing which, the
licensee will secure access to more than what was intended by the parties.

ii. The territory within which these rights can be exercised must be specific, and the term must
also be specified. The term must be agreed upon based on prevailing norms of the Reserve Bank
of India and other regulations in this regard. The termination clause must specify the
consequences of early termination, reversion of the IP to the licensor, and, to the extent possible,
destruction of any confidential material or information within the possession of the licensor.

iii. Consideration including royalty payments must be structured properly.

iv. As far as the know-how is concerned, the confidentiality clause matters the most. The
confidential information must be clearly identified as such. If the information is highly technical,
this clause must be drafted in an industry specific manner. The consequences for any breach
must be clearly identified.

v. The tax liability under TTAs varies based on whether the parties are Indian or would include
foreign collaborators. The tax liability clause must identify the manner in which all taxes must be
paid.

vi. TTAs involve heavy obligations on both parties. The licensor must ensure that the technology
is used properly and for that ensure that the licensee, at all times, has the technical capabilities
that are required to achieve it. This may include training, testing, quality control and other

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measures. The licensee will have the responsibility to use the technology to the fullest, make all
payments on time and to maintain confidentiality throughout the duration of the agreement.

vii. Use of other IP, i.e., brand names or other literature, must be carved out through separate
clauses defining all permissible uses.

4. Employment agreement:

Employment agreements must typically contain a blanket clause allowing the use and transfer of
all IP created by the employee, during the course of employment, by and to the employer,
especially where the employee is a senior member of the team. The clause also grants exclusive
rights in all such IP to the employer.

Example: "The Employee agrees that all and any work executed and performed in the course of
employment, whether or not conducted on the premises of the Company but related to the
business of the Company, is being done on behalf of the Company. In this regard any
discoveries, inventions, work created, data produced, concepts, ideas, creations and discoveries
belong to the Company. The Employee hereby agrees to transfer and assign all intellectual
property rights that may be developed or created by her without any claim over any such work,
and waives any other right that she may have in law.

The Employee further agrees to execute, upon the request of the Company all necessary papers
and otherwise provide proper assistance to enable the Company to obtain for itself (and to vest
legal title in the Company), patents, copyrights, or other legal protection for such inventions,
discoveries, innovations, improvements, original works of authorship, trade secrets and
technical or business information in any and all countries."

In this article, which is the second of the two-part series on transfer of IP, we have discussed the
manner in which various clauses in an IP transfer agreement must be drafted. There are several
ways in which these agreements can be structured, but it is important to keep in mind the
intention of the parties and the extent of rights that are to be granted. Similarly, rights must be
granted in such a manner that would allow the full and proper use of the IP. Note that the

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example clauses given in this article are only indicative, and in any agreement, these clauses
must be drafted to suit the relevant purpose.

CONCLUSION

During the period of internship I have learnt many things. In this period of pandemic they have
provided us with many learning experiences. Though we could not take a glance at the courts but
they provided us with relevant cases. Basically this time I have focused more on litigation
department and have learnt a lot about the same. Have learnt how to make a brief opinion, case
note for cases. How exactly writ petitions are filled, what are the relevant documents needed.
Legal research on matters of property law, labour laws. For the other part of my internship that is
in the month of December, I undertook my internship under Vohra &Vohra law firm which is
specialized in IPR. Though we haven’t studies about IPR still they have given me a chance to
learn from them. In the initial stage I was asked to focus on trademark filing, then copyright
laws. Due to paucity of time we could not work much but I tried my best to grab from them.
Under the Copyright Act, 1957 the term "work" includes an artistic work comprising of a
painting, a sculpture, a drawing (including a diagram, a map, a chart or plan), an engraving, a
photograph, a work of architecture or artistic craftsmanship, dramatic work, literary work
(including computer programmes, tables, compilations and computer databases), musical work
(including music as well as graphical notations), sound recording and cinematographic film. In
India, the registration of copyright is not mandatory as the registration is treated as mere recordal
of a fact. The registration does not create or confer any new right and is not a prerequisite for
initiating action against infringement. The view has been upheld by the Indian courts in a catena

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of judgments. The law of copyright in India not only provides for civil remedies in the form of
permanent injunction, damages or accounts of profits, delivery of the infringing material for
destruction and cost of the legal proceedings. etc. but also makes instances of infringement of
copyright, a cognizable offence punishable with imprisonment for a term which shall not be less
than six months but which may extend to three years with a fine which shall not be less than Rs
50,000 (approx. US$ 800) but may extend to Rs 2,00,000 (approx. US$ 3,000). For the second
and subsequent offences, there are provisions for enhanced fine and punishment under the
Copyright Act. The (Indian) Copyright Act, 1957 gives power to the police authorities to register
the Complaint (First Information Report, ie, FIR) and act on its own to arrest the accused, search
the premises of the accused and seize the infringing material without any intervention of the
court. In the case of original literary, dramatic, musical and artistic works, the duration of
copyright is the lifetime of the author or artist, and 60 years counted from the year following the
death of the author. In the case of cinematograph films, sound recordings, posthumous
publications, anonymous and pseudonymous publications, works of government and works of
international organisations are protected for a period of 60 years which is counted from the year
following the date of publication.

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