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Powers-of-Attorney – The Fundamentals

This article states the fundamental legal and practical aspects of a power of attorney.

Principles are discussed with reference to a power of attorney for selling or purchasing immovable property; there are also other examples. The article states the law applicable in India.

Stamp duty on Powers-of-Attorney authorising sale of immovable property

A Power of Attorney authorising sale of immovable property is liable for stamp duty as if a conveyance.

Powers-of-Attorney (POA) and transactions of immovable property are liable to stamp duty under the State (not Central) laws of India. Stamp duty is a revenue for the government. Ordinarily, a POA carries very small amount of stamp duty. However, in 2008, the Bombay Stamp Act was amended and a POA authorising sale of immovable property was liable for the same stamp duty as a conveyance of immovable property. Laws in other states make similar provisions. The article criticises this Amendment.

Exceptional Nature of Specific Performance in the Indian law

Specific performance ought to be available in the Indian law as a routine remedy, rather than being exceptional.

(Paper at Seminar :Specific Enforcement of Contracts, Mar 9, 2013)
Note : The Specific Relief (Amendment) Act 2018 has changed the law.)
In Indian law, specific relief giving enforced performance of a contract is by way of a decree of specific performance, or injunction – prohibitory or mandatory. But it is granted as an exception, in cases where compensation either is not ascertainable or is inadequate, and where it is possible of effective enforcement.
A plaintiff seeking specific performance must satisfy ‘ the inadequacy test’ at the threshold, which makes specific performance an exceptional remedy. Although other factors, viz. plaintiff’s conduct, and exercise of discretion by the Court affect availability of specific performance, this article discusses the role of the inadequacy test in the grant of specific relief. Even though the inadequacy test is fulfilled, the Court must be able to make its decree enforceable. This limitation on court’s power is also discussed. The article supports the view that specific performance must be available as a routine remedy, so that a promisee can choose specific performance.

Supreme Court on a Development Contract: An Analysis Based on Principles of Contract and Specific Relief

Can and should a development contract be specifically enforced?

(Published in All India Reporter, cited as AIR 2006 Jour 177.)
The article discusses the application by the Supreme Court of India of principles of laws of contract and specific relief in a case for enforcement of a development contract in its judgment in the case of Her Highness Maharani Shantidevi P. Gaikwad v. Savjibhai Haribhai Patel, that the Supreme Court decided in 2001. The article discusses minutely the principles applicable to development contracts and suggests that the principles given in the case needs reconsideration.

Simplifying Insurance Policies – Importance of Plain Language

If insurance policies were in plain language, policy-holders will understand them.

(Published in IRDA Journal, Oct 16, 2012.)
The article proposes that insurers should offer insurance policies in plain language. It discusses examples and illustrations from policies of health insurance. Using plain language will help the insured in understanding what he has bought, and also officers of insurance companies in taking fast and effective decisions. Shifting to plain language requires getting over the fear and anxiety of shedding legalese. The article also gives links to articles, handbooks and websites about plain language. The entire article is posted with permission from the IRDA Journal.

A Close Look at the Free-Look Option in Insurance Policies

Free-look provisions in life and health insurance allow the insured to return the policy without giving reasons. This is easier said than done.

(Published in Pravartak, the Magazine for Insurance Practitioners, Volume IX, Issue 1, pp 47-52 in January 2015)
“Free-look period” provisions in insurance policies give to an insured the very important right to withdraw from his insurance contract that he has already concluded, and give him time time for thought so that he can take a conscious decision about ending the insurance contract. Free-look period provisions are mandatory in life and health insurance policies. This article analyses free-look provisions in different statutory instruments that mandate the provision, and in sample policy wordings, brochures and free-look cancellation forms. This article examines the true purpose of this provision and its use, and proceeds to posit that this provision gives to the insured an additional right to withdraw from the contract, and that it does not and cannot have the effect of terminating or extinguishing the rights of an insured under law. It suggests a model standard free-look provision.

Contracts for the Benefit of Third Parties: The Indian Perspective.

The Indian law recognizes the privity rule that prevents enforcement of a contract by third party beneficiaries.

(Published as part of Studies in the Contract Laws of Asia II: Formation and Third Party Beneficiaries, edited by Mindy Chen-Wishart, Alexander Loke, and Stefan Vogenauer, published by Oxford University Press.)
This Chapter states the Indian law relating enforcement of terms of a contract by third party beneficiaries. This doctrine of privity was incorporated into the Indian law before the Indian Contract Act 1872 was enacted. Althouth the Act does not state the privity rule, it’s existence in the Indian law is attributed to the language of the provisions of the Act, and also as incorporation of the English law into the Indian law. Indian judgments have found ways around the rule in the well-accepted exceptions also found in the English law, recognition of some exceptions in the peculiar Indian circumstances, and by classifying the privity rule as a rule of procedure rather than in substance.

Growing up as a teacher

Good teaching can be learnt.

(Published as part of a book “Secrets of Good Teaching” edited by Dr Viney Kirpal and published in 2006 by the ICFAI University Press, Hyderabad, India.) Click here for a preview of the book.
Good teaching can be learnt, especially by observing good teachers. Good teaching is not teaching, but enabling students so that they learn themselves. With very simple techniques, a teacher can generate interest among her students, so that they are encouraged to learn.

State Amendments to Hindu Succession Act and Conflict of Laws: Need for Law Reform

In four Indian States, daughters have rights in coparcenery property like sons do. A central law will avoid conflicts.

(Important Note: This article was published in 2001. The law, the Hindu Succession Act 1955, was amended in 2005 to bring uniform provisions applicable throughout India)
(Published in Supreme Court Cases cited as (2001) 1 SCC (Jour) 40.)
Five States in India have amended the law relating to coparcenary property. Four States, viz., Maharashtra, Andhra Pradesh, Tamil Nadu and Karnataka, have conferred upon daughters a birthright in coparcenary property. Kerala has abolished the joint family system among Hindus. The object of this article is to explore the conflicts which may arise due to operation of different laws in different States in India. It also asks for a uniform law in India to govern daughters in Hindu families.

Commercial law must be certain and predictable.

Law about liquidated damages in India is uncertain and unpredictable.

I take example of a clause in a contract about liquidated damages to demonstrate how the many judgments have made this branch of law uncertain and unpredictable for contracting parties. This is my speech at the inaugural session of a Seminar organised by the National School of India University, Bengaluru : “Strengthening Legal Provisions for the Enforcement of Contracts”.

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