Death for Pandher, Koli

Saturday, Feb 14, 2009


Surinder Koli.

Ghaziabad (U.P.): A special court on Friday awarded the death sentence to businessman Moninder Singh Pandher and his domestic help Surinder Koli for the rape and murder of a 14-year-old girl, one of 19 victims in the sensational Nithari serial killings.

Special CBI judge Rama Jain termed the crimes committed by 55-year-old Pandher and 38-year-old Koli the “rarest of rare” deserving capital punishment.

While counsel for the victim’s family Khalid Khan described the verdict as a “slap in the face of the CBI,” which gave a clean chit to Pandher, the businessman’s son, Karandeep Singh, said his father was innocent and he would appeal against the judgment in the Allahabad High Court.

The court on Thursday convicted Pandher and Koli under various Sections of the Indian Penal Code for murder, rape, criminal conspiracy and destruction of evidence.

In its final arguments on Friday, the CBI sought the death penalty for Koli but left to the court the quantum of punishment for Pandher as the agency had no charges against him in this case.

The judge said: “No more penalty could be awarded to the accused persons; otherwise, they deserve more punishment as their act of murder and rape in this particular case was beyond all the canons of humanity.” After the verdict, Pandher broke into tears while Koli remained unmoved.

‘Remorseless’

Earlier, during final arguments, CBI counsel argued that Koli had no right to live in society because even today he was remorseless. “He continues to be a threat to society,” Mr. Ahluwalia said. — PTI

SEBI relaxes takeover norms

Saturday, Feb 14, 2009

MUMBAI: The Securities and Exchange Board of India (SEBI) on Friday eased takeover norms for companies whose boards have been superseded by the government, under which suitors need not make an open offer.

SEBI amended the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997, allowing companies a special status in the bidding process. following the scam tainted Satyam was taken over by the Government in January. This would help the newly appointed board find a bidder as well as a realistic bidding price for the company.

These regulations may be called the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) (Second Amendment) Regulations, 2009, and it has come into force from Friday.

In the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997, (i) in regulation 25, after sub-regulation (2A), a new sub-regulation has been inserted, namely, (2B). “No public announcement for a competitive bid shall be made after an acquirer has already made the public announcement pursuant to relaxation granted by the Board in terms of regulation 29A”.

Further, in the same regulation, after regulation 29, the following regulation has been inserted, namely, “Relaxation from the strict compliance of provisions of Chapter III in certain cases. 29A:

The board may relax any or more of the provisions of this Chapter, subject to such conditions as it may deem fit, if it is satisfied that

(a) the Central Government or State government or any other regulatory authority has removed the board of directors of the target company and has appointed other persons to hold office as directors for the time being for orderly conduct of the affairs of the target company;

(b) such directors have devised a plan which provides for transparent, open, and competitive process for continued operation of the target company;

(c) the conditions and requirements of the competitive process are reasonable and fair;

(d) the process provides for details, including the time when the public offer would be made, completed and the manner in which the change in control would be effected; and

(e) the provisions of this Chapter are likely to act as impediment to implementation of the plan of the target company”.

Takeover

In business, a takeover is the purchase of one company (the target) by another (the acquirer, or bidder). In the UK, the term refers to the acquisition of a public company whose shares are listed on a stock exchange, in contrast to the acquisition of a private company.

Friendly takeovers

Before a bidder makes an offer for another company, it usually first informs that company's Board of Director. If the board feels that accepting the offer serves shareholders better than rejecting it, it recommends the offer be accepted by the shareholders.

In a private company, because the shareholders and the board are usually the same people or closely connected with one another, private acquisitions are usually friendly: if the shareholders agree to sell the company then the board is usually of the same mind or sufficiently under the orders of the shareholders to cooperate with the bidder. This point is not relevant to the UK concept of takeovers, which always involve the acquisition of a public company.

Hostile takeovers

If management may not be acting in the best interest of the shareholders (or creditors, in cases of bankrupt firms), a hostile takeover allows a suitor to bypass intransigent management. This enables the shareholders to choose the option that may be best for them, rather than leaving approval solely with management. In this case, a hostile takeover may be beneficial to shareholders, which is contrary to the usual perception that a hostile takeover is "bad."

A takeover is considered "hostile" if:

• The board rejects the offer, but the bidder continues to pursue it, or
• The bidder makes the offer without informing the board beforehand

A hostile takeover can be conducted in several ways. A tender offer can be made where the acquiring company makes a public offer at a fixed price above the current market price. Tender offers in the USA are regulated with the Williams Act. An acquiring company can also engage in a Proxy fight whereby tries to persuade enough shareholders, usually a simple majority, to replace the management with a new one which will approve the takeover. Another method involves quietly purchasing enough stock on the open market, known as a creeping tender offer, to effect a change in management. In all of these ways, management resists the acquisition but it is carried out anyway.

The main consequence of a bid being considered hostile is practical rather than legal. If the board of the target cooperates, the bidder can conduct extensive due diligence into the affairs of the target company. It can find out exactly what it is taking on before it makes a commitment. But a hostile bidder knows about the target only the information that is publicly available, and so takes a greater risk. Also, banks are less willing to back hostile bids with the loans that are usually needed to finance the takeover.

Reverse takeovers

A reverse takeovers is a type of takeover where a private company acquires a public company. This is usually done at the instigation of the larger, private company, the purpose being for the private company to effectively float itself while avoiding some of the expense and time involved in a conventional IPO. However, under AIM rules, a reverse take-over is an acquisition or acquisitions in a twelve month period which for an AIM company would:

• exceed 100% in any of the class tests; or
• result in a fundamental change in its business, board or voting control; or
• in the case of an investing company, depart substantially from the investing strategy stated in its admission document or, where no admission document was produced on admission, depart substantially from the investing strategy stated in its pre-admission announcement or, depart substantially from the investing strategy.

Financing a takeover

Funding

Often a company acquiring another pays a specified amount for it. This money can be raised in a number of ways. The company may have sufficient funds available in its account, but this is unusual. More often, it will be borrowed from a bank, or raised by an issue of bonds. Acquisitions financed through debt are known as leveraged buyouts, and the debt will often be moved down onto the balance sheets of the acquired company. The acquired company then has to pay back the debt. This is a technique often used by private equity companies. The debt ratio of financing can go as high as 80% in some cases. In such a case, the acquiring company would only need to raise 20% of the purchase price.

Loan note alternatives

Cash offers for public companies often include a "loan note alternative" that allows shareholders to take part or all of their consideration in loan notes rather than cash. This is done primarily to make the offer more attractive in terms of taxation. A conversion of shares into cash is counted a disposal that triggers a payment of capital gains tax, whereas if the shares are converted into other securities, such as loan notes, the tax is rolled over.

All share deals

A takeover, particularly a reverse takeovers, may be financed by an all share deal. The bidder does not pay money, but instead issues new shares in itself to the shareholders of the company being acquired. In a reverse takeover the shareholders of the company being acquired end up with a majority of the shares in, and so control of, the company making the bid. The company has managemental rights.

Perceived pros and cons of takeover

While perceived pros and cons of a takeover differ from case to case, there are a few worth mentioning.

Pros:

1. Increase in sales/revenues (e.g. Procter & Gamble takeover of Gillette)
2. Venture into new businesses and markets
3. Profitability of target company
4. Increase market share
5. Decrease competition (from the perspective of the acquiring company)
6. Reduction of overcapacity in the industry
7. Enlarge brand portfolio (e.g. L'Oréal's takeover of Bodyshop)
8. Increase in economies of scale.
   

Cons:

1. Reduced competition and choice for consumers in oligopoly markets. (Bad for consumers, although this is good for the companies involved in the takeover)
2. Likelihood of job cuts.
3. Cultural integration/conflict with new management
4. Hidden liabilities of target entity.
5. The monetary cost to the company.

What is MACT ?

Motor Accidents Claims Tribunal MACT deals with matters related to compensation of motor accidents victims or their next of kin .The Tribunal deal with claims relating to loss of life/property and injury cases resulting from Motor Accidents.

MACT Courts are presided over by Judicial Officers from the State Higher Judicial Service. Now these Courts are under direct supervision of the Hon’ble High Court of the respective state

Who can report to MACT in case of accident ?

Victim himself or through Advocate,in the case of personal injury. Through advocate in case of minor applicant below the age of 18 years. Legal heirs themselves or through advocate in the case of death.The owner of the vehicle in the case of property damage.

What all documents should accompany the petition ?

1. Copy of the FIR registered in connection with said accident, if any.

2. Copy of the MLC/Post Mortem Report/Death Report as the case may be.

3. The documents of the identity of the claimants and of the deceased in a death case.

4. Original bills of expenses incurred on the treatment alongwith treatment record.

5. Documents of the educational qualifications of the deceased, if any.

6. Disability Certificate, if already obtained, in an injury case.

7. The proof of income of the deceased/injured.

8. Documents about the age of the victim.

9. The cover note of the third party insurance policy, if any.

10.An affidavit detailing the relationship of the claimants with the deceased.

Judges Vacancies: States, HCs Asked To Fix Time Schedule

03 April, 2006
While holding non-filling of posts of judicial officers responsible for ever increasing backlog of cases, the Supreme Court today issued directions to the States, Union Territories and High Courts to draw up a time schedule for filling the vacancies of judges at all levels.

A bench, comprising Chief Justice Y K Sabharwal and Mr Justice C K Thakker, directed them to file details of the time schedule and date from which it would be operational, within three months.

It ruled that non-filling of vacancies for long not only resulted in avoidable litigation but also increased frustration among the candidates. This was one of reasons of huge pendency of cases in the courts.

The Court found it necessary to evolve a mechanism to speedily determine and fill the vacancies of judges at all levels. "For all these and other steps if any, it is necessary to provide for fixed time schedule so that system works automatically and there is no delay in filling up of vacancies," the court observed.

"The dates for taking these steps can be provided on the pattern similar to filling of vacancies in some other services or filling of seats for admission to medical colleges. The time schedule appended to the regulations governing medical admissions sets out a time schedule for every step to be strictly adhered to every year," the Court went on to say.

The directions came while allowing appeals by some candidates challenging the Allahabad High Court judgments holding that only those candidates who were of requisite age on July 1, 2003 were eligible. The lower age was 22 years and upper age limit was 35 years for the posts of civil judges in Uttar Pradesh.

The apex court, while setting aside the High Court order on a petition filed by Malik Mazhar Sultan and another, held that those who became eligible on July 1, 2004 and those who were eligible on July 1, 2002 would be considered for appointment to the posts of civil judge (junior division). In all, 347 candidates were to be recruited to the posts of civil judge by the UP Public Service Commission. The Court directed that the recruitment process for the remaining should be completed at the earliest.

(UNI)

The extracts of the abovementioned case is as under:-

Malik Mazhar Sultan & Anr VS. U.P. Public Service Commission & Ors

CASE NO.: Appeal (civil) 1867 of 2006

PETITIONER: Malik Mazhar Sultan & Anr

RESPONDENT: U.P. Public Service Commission & Ors

DATE OF JUDGMENT: 03/04/2006

BENCH: Y.K. Sabharwal & C.K.Thakker

JUDGMENT: (With Civil Appeal Nos.............of 2006 (Arising out of SLP(C) Nos. 23314, 23316, 23702, 25179 & 24732 of 2005)

J U D G M E N T (Arising out of SLP(C) No.22523 of 2005)

Y.K.SABHARWAL, CJI.

Leave granted.

The main question to be determined in these matters, which relates to the recruitment to the posts of Civil Judge (Junior Division) under U.P Judicial Service Rules 2001 (for short 'the Rules'), is as to the eligibility of some candidates from the point of view of age.

The High Court by the impugned judgment has held only those candidates eligible who were of requisite age as on 1st July, 2003. Is the High Court right in its conclusion or 1st July, 2001 or 1st July, 2002 is the relevant date for determining the age as a condition of eligibility as cont...

First digital Lok Adalat to be held in Delhi Sunday

February 7th, 2009 - 2:15 pm ICT by IANS

New Delhi, Feb 7 (IANS) India’s first digital Lok Adalat, which will be completely paperless, will be held here Sunday to try civil and criminal cases related to ICICI Bank, an official said.”In this Lok Adalat, both criminal cases and civil suits would be taken up. This is the first initiative in India where Lok Adalat has gone digital as there would be no movement of files,” Delhi Legal Services Authority (DLSA) Project Officer Sanjay Sharma said.

Litigants involved in cheque-bounce cases would be able to avail of a digital Lok Adalat at five ditrict courts here where 100 magistrates would resolve matters related to ICICI Bank.

Litigants can access data through the private bank’s centralised database by just mentioning the credit card number, housing and auto loan number and unique ID number of the case, Sharma said.

As soon as the litigant furnishes the information, a computer printout would be generated consisting of essential details such as the unique ID number of case and name of the court that would help ICICI representatives present their view to resolve the matter.

“In case the accused or defendant and ICICI agree to settle the matter, the statement would be recorded in the performa order sheets,” he said.

The inauguration of the Lok Adalat will be presided over by Supreme Court judge Arijit Pasayat.

Information Technology Act, 2000

New communication systems and digital technology have made dramatic changes in way of transacting business. Use of computers to create, transmit and store information is increasing. Computer has many advantages in e-commerce. It is difficult to shift business from paper to electronic form due to two legal hurdles - (

a) Requirements as to writing and

(b) Signature for legal recognition. Many legal provisions assume paper based records and documents and signature on paper.

The General Assembly of the United Nations by resolution dated the 30th January, 1997 adopted the Model Law on Electronic Commerce and recommended that all States should give favourable consideration to the Model Law when they enact or revise their laws.

The Information Technology Act has been passed to give effect to the UN resolution and to promote efficient delivery of Government services by means of reliable electronic records.

As per preamble to the Act, the purpose of Act is

(a) to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as "electronic commerce", which involve the use of alternatives to paper-based methods of communication and storage of information and

(b) to facilitate electronic filing of documents with the Government agencies. - - The Act came into effect on 17.10.2000.

The Act does not apply to —

(a) a negotiable instrument as defined in section 13 of the Negotiable Instruments Act, except cheque

(b) a power-of-attorney as defined in section 1A of the Powers-of-Attorney Act

(c) a trust as defined in section 3 of the Indian Trusts Act

(d) a will as defined in section 2(h) of the Indian Succession Act, including any other testamentary disposition by whatever name called

(e) any contract for the sale or conveyance of immovable property or any interest in such property

(f) any such class of documents or transactions as may be notified by the Central Government in the Official Gazette. - - Broadly, documents which are required to be stamped are kept out of the provisions of the Act.

Overview of the Act - The Act provides for - * Electronic contracts will be legally valid * Legal recognition of digital signatures * Digital signature to be effected by use of asymmetric crypto system and hash function * Security procedure for electronic records and digital signature * Appointment of Certifying Authorities and Controller of Certifying Authorities, including recognition of foreign Certifying Authorities * Controller to act as repository of all digital signature certificates * Certifying authorities to get License to issue digital signature certificates * Various types of computer crimes defined and stringent penalties provided under the Act * Appointment of Adjudicating Officer for holding inquiries under the Act * Establishment of Cyber Appellate Tribunal under the Act * Appeal from order of Adjudicating Officer to Cyber Appellate Tribunal and not to any Civil Court * Appeal from order of Cyber Appellate Tribunal to High Court * Act to apply for offences or contraventions committed outside India * Network service providers not to be liable in certain cases * Power of police officers and other officers to enter into any public place and search and arrest without warrant * Constitution of Cyber Regulations Advisory Committee who will advice the Central Government and Controller

What does IT Act enable? - The Information Technology Act enables:* Legal recognition to Electronic Transaction / Record * Facilitate Electronic Communication by means of reliable electronic record * Acceptance of contract expressed by electronic means * Facilitate Electronic Commerce and Electronic Data interchange * Electronic Governance * Facilitate electronic filing of documents * Retention of documents in electronic form * Where the law requires the signature, digital signature satisfy the requirement * Uniformity of rules, regulations and standards regarding the authentication and integrity of electronic records or documents * Publication of official gazette in the electronic form * Interception of any message transmitted in the electronic or encrypted form * Prevent Computer Crime, forged electronic records, international alteration of electronic records fraud, forgery or falsification in Electronic Commerce and electronic transaction.

Digital signature - Any subscriber may authenticate an electronic record by affixing his digital signature. [section 3(1)]. “Subscriber" means a person in whose name the Digital Signature Certificate is issued. [section 2(1)(zg)]. "Digital Signature Certificate" means a Digital Signature Certificate issued under section 35(4) [section 2(1)(q)].

"Digital signature" means authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with the provisions of section 3. [section 2(1)(p)].

"Affixing digital signature" with its grammatical variations and cognate expressions means adoption of any methodology or procedure by a person for the purpose of authenticating an electronic record by means of digital signature. [section 2(1)(d)].

Authentication of records - The authentication of the electronic record shall be effected by the use of asymmetric crypto system and hash function which envelop and transform the initial electronic record into another electronic record. [section 3(2)].

Verification of digital signature - Any person by the use of a public key of the subscriber can verify the electronic record. [section 3(3)]. The private key and the public key are unique to the subscriber and constitute a functioning key pair. [section 3(4)].

The idea is similar to locker key in a bank. You have your ‘private key’ while bank manager has ‘public key’. The locker does not open unless both the keys come together match.

Electronic records acceptable unless specific provision to contrary - Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is - (a) rendered or made available in an electronic form; and (b) accessible so as to be usable for a subsequent reference. [section 4]. - - Unless there is specific provision in law to contrary, electric record or electronic return is acceptable. - - Soon, it will be possible to submit applications, income tax returns and other returns through internet.

Department or ministry cannot be compelled to accept electronic record - Section 8 makes it clear that no department or ministry can be compelled to accept application, return or any communication in electronic form.

Legal recognition of digital signatures - Where any law provides that information or any other matter shall be authenticated by affixing the signature or any document shall be signed or bear the signature of any person then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied, if such information or matter is authenticated by means of digital signature affixed in such manner as may be prescribed by the Central Government. - - "Signed", with its grammatical variations and cognate expressions, shall, with reference to a person, mean affixing of his hand written signature or any mark on any document and the expression "signature" shall be construed accordingly. [section 5].

Secure digital signature - If, by application of a security procedure agreed to by the parties concerned, it can be verified that a digital signature, at the time it was affixed, was - (a) unique to the subscriber affixing it (b) capable of identifying such subscriber (c) created in a manner or using a means under the exclusive control of the subscriber and is linked to the electronic record to which it relates in such a manner that if the electronic record was altered the digital signature would be invalidated, - - then such digital signature shall be deemed to be a secure digital signature. [section 15].

Certifying digital signature - The digital signature will be certified by ‘Certifying Authority’. The ‘certified authority’ will be licensed, supervised and controlled by ‘Controller of Certifying Authorities’.

A Note on the Civil Procedure Code Amendment Act 2002

THE CIVIL PROCEDURE CODE (AMENDMENT) ACT 2002

The 2002 amendment to the Civil procedure Code, 1908 (“CPC“ in common usage), is the latest Parliamentary effort at making litigation in the country more effective and speedy. The Code is a consolidation of procedural laws that prescribe for civil courts, the practice, procedure and machinery for the enforcement of substantive law (- i.e. Rights and liabilities of parties to a dispute.). It extends to the whole of India barring the States of Jammu and Kashmir; (2) Nagaland and the tribal areas.

The Amendment of 2002 comes in the wake of the Amendment act of 1999, which was enacted to reduce the delays, experienced by litigants at various levels. It seeks to address those provisions introduced by the Act of 1999 that have been criticized as causing hardships to litigants and also other proposals to reduce delays faced

Litigation consists of the following stages, broadly categorised as pre-trial and trial proceedings. For the sake of clarity, the amendments are presented in conjunction with the stage of litigation they correspond to..

Sl. No.	Stages of Litigation	Corresponding Amendments made by the Act of 2002.
I)	PRE-TRIAL PROCEEDINGS
(a)	Institution of plaint, along with documents relied on	Under the amended Order, Rules 17 & 18 of the CPC Any documents that the plaintiff wants to rely on which have not been either attached along with the plaint or stated in the list can’t be subsequently introduced without the leave of the court. This provision would lead to greater efficiency if followed strictly. The position under the amendment introduced in 1999 was that new documents could only be introduced for the purpose of cross examination or to refresh the witness’s memory In cases where there’s delay in production of documents due to no fault of the client, the Court may consider that as a sufficient reason and allow the subsequent production of documents.
(b)	Service of summons to the opposite party (defendant) to submit their written statement.	Amendment to Rule 9, Order V: Summons shall be delivered by the proper officer of the court in the ordinary course, as opposed to the pre- amendment position, where in some cases, the plaintiff or her agent could deliver the summons. Now the plaintiff only has to provide the required number of copies of the plaint and to pay the costs of delivery. If this is not done within the stipulated period of 7 days then the suit shall be dismissed (Amended Rule 2 of the first schedule of Order IX ), Rule 2 of Order IX as amended. However, on application to the court, the plaintiff may be allowed to issue summons herself. (Rule 9-A) Summons may now be delivered through Fax, or email also. In cases where the defendant resides outside the jurisdiction of the court where the suit is filed, such court can direct service of summons through any one of the courier services approved by it. An improvement over the 1999 Act insofar as the local court has now got power to approve the courier service, whereas earlier only the HC had the power to do so. The decentralisation should speed up the litigation. However all this is subject to the Rules made by the High Court. what kind of rules are made by the High Court are yet to be sseen and only then can the efficacy of this provision be commented on. . If the Defendant. refuses to accept summons (which is till now a common problem), whether it is served personally by the proper officer through any of the new modes introduced, the court on being intimated, can issue a declaration to the effect that the summons have been duly served. Rule 9 (5) (what is the effect of such a declaration? - contempt of court?)
(c )	Filing of Defendants written statement	The defendant has to submit the written statement within 30 days of the service of summons. This may be extended upon an application to the court, up to a maximum of 90 days Reasons for granting extension to be recorded in writing (as per amended Rule 1 sub rule (i), Schedule I of Order V,). Regarding the introduction of additional. documents at a later stage the similar rule applies to the defendant. as to the plaintiff mentioned above. If the defendantt. fails to file the written statement within the given time the court may pass any order against the erring party or a judgment / decree. Amended Order VIII Rule This provision would definitely further the cause of speedy justice..
II	TRIAL PROCEEDINGS
a)	Hearings in Court ADJOURNMENTS !	Once the hearing is commenced both the plaintiff and defendant shall not be given leave by the court to amend the suit unless the court is decides that in spite of due diligence being exercised the party could not have raised the matter. Rule 17 of Order VI Further if the party does not amend the suit within the given time then she shall not be allowed to unless the court extends the time. Rule 18 Of Order Vi The Act of 2002 has reintroduced the power of the Court to amend /strike out issues for the purpose of determining the matter in controversy between the parties. (Rule V of Order XIV). This power was taken away by the 1999 amendment. The court shall not grant more than three adjournments to either party to the suit. Any adjournment shall only be granted after the party requesting time shows sufficient cause. In each adjournment, the court shall make an order as to costs faced by the other party as a result of the adjournment. The court may also award higher costs if its thinks fit. Possibly a punitive measure
i)	Presentation of oral arguments	The court may fix a time limit for oral arguments of either of the parties as it thinks fit. (Sub Rule 3- D Rule 2, Order XVIII, First Schedule) Sometimes oral arguments tend to drag on for hours together. However there is also a provision by which written arguments can be submitted. This is a useful provision, because it offsets any possible injustice owing to the refusal of the Court to hear the arguments.
ii)	Examination in chief cross – examination by the other side. of both parties witnesses.	The examination in chief of the witnesses of both parties shall be rendered via affidavit and furnished to the court. The evidence (re-examination and Cross examination) may be taken by a commissioner appointed by the court for this purpose, on the same day. However usually (even after the new act, time is granted for cross examination)
b)	Pronouncement of Judgment and Decree/Order	Judgement to be ordinarily pronounced within 30 days subject to a maximum time limit of 60 days ( for extraordinary reasons) But this is also not absolute….( per amended Order XX) In cases where the court orders sale of the defendants property in pursuance of the claim awarded to the plaintiffs. As per the amendment, the defendant now has 60 days (as opposed to the earlier 30 days) for depositing the suit money in court. The amendment removes the anomaly between the Code and the limitation act, which granted 60 days to the defendant before making the sale absolute. The amendment is particularly beneficial for poorer litigants who now have additional time to come up with the funds.
c)	Revision of Lower courts Order	Section 115 has been amended to the disadvantage of litigants. Under the amended provision, when a party files a Civil Revision Petition aggrieved by the Order of a lower Court, the High Court cannot reverse such Order except where the Order, if it had been made in favour of the Revisioner, would have had the effect of finally disposing of the proceedings. For example, if a Plaintiff in a suit wishes to make an amendment to the Plaint and the Trial Court rejects the application, the High Court cannot reverse this order, as it would not have finally disposed of the case if the Order had been in favour of the Plaintiff
d).	Appeal	The appeal process has been limited so that hence forth no appeal shall lie from the judgment of a single judge of a High court and no second appeal in any suit (irrespective of whether it comes up before the high court or a lower court) where the subject value of the original suit is up to Rs. 25,000/- (Substituted new section 102)
III.	SETTLEMENT OF DISPUTES OUTSIDE OF COURT	The Act of 1999, has introduced a new provision (S.89) where the court may by itself, proactively refer a dispute for alternative dispute resolution methods if it appears that elements of a settlement exist, which may be acceptable to the parties to the dispute. The Provision is a good one provided that it does not in any way prevent the parties themselves withdrawing the case so that they may settle through any mode of alternate dispute resolution that is acceptable to both parties.

A Note on the Civil Procedure Code Amendment Act 2002

A kick-start to our online efforts at making the Judiciary more accessible and also “demystifying“ the law. If procedure is the handmaiden to justice than understanding the Civil Procedure Code which lays down procedures for the Civil court s including the High court is important. The note given below attempts to simplify the latest amendment to the Code, for litigants and hopefully (!) any lay person having an interest in the justice delivery system of our country.

THE CIVIL PROCEDURE CODE (AMENDMENT) ACT 2002

The 2002 amendment to the Civil procedure Code, 1908 (“CPC“ in common usage), is the latest Parliamentary effort at making litigation in the country more effective and speedy. The Code is a consolidation of procedural laws that prescribe for civil courts, the practice, procedure and machinery for the enforcement of substantive law (- i.e. Rights and liabilities of parties to a dispute.). It extends to the whole of India barring the States of Jammu and Kashmir; (2) Nagaland and the tribal areas.

The Amendment of 2002 comes in the wake of the Amendment act of 1999, which was enacted to reduce the delays, experienced by litigants at various levels. It seeks to address those provisions introduced by the Act of 1999 that have been criticized as causing hardships to litigants and also other proposals to reduce delays faced

Litigation consists of the following stages, broadly categorised as pre-trial and trial proceedings. For the sake of clarity, the amendments are presented in conjunction with the stage of litigation they correspond to..

Sl. No.	Stages of Litigation	Corresponding Amendments made by the Act of 2002.
I)	PRE-TRIAL PROCEEDINGS
(a)	Institution of plaint, along with documents relied on	Under the amended Order, Rules 17 & 18 of the CPC Any documents that the plaintiff wants to rely on which have not been either attached along with the plaint or stated in the list can’t be subsequently introduced without the leave of the court. This provision would lead to greater efficiency if followed strictly. The position under the amendment introduced in 1999 was that new documents could only be introduced for the purpose of cross examination or to refresh the witness’s memory In cases where there’s delay in production of documents due to no fault of the client, the Court may consider that as a sufficient reason and allow the subsequent production of documents.
(b)	Service of summons to the opposite party (defendant) to submit their written statement.	Amendment to Rule 9, Order V: Summons shall be delivered by the proper officer of the court in the ordinary course, as opposed to the pre- amendment position, where in some cases, the plaintiff or her agent could deliver the summons. Now the plaintiff only has to provide the required number of copies of the plaint and to pay the costs of delivery. If this is not done within the stipulated period of 7 days then the suit shall be dismissed (Amended Rule 2 of the first schedule of Order IX ), Rule 2 of Order IX as amended. However, on application to the court, the plaintiff may be allowed to issue summons herself. (Rule 9-A) Summons may now be delivered through Fax, or email also. In cases where the defendant resides outside the jurisdiction of the court where the suit is filed, such court can direct service of summons through any one of the courier services approved by it. An improvement over the 1999 Act insofar as the local court has now got power to approve the courier service, whereas earlier only the HC had the power to do so. The decentralisation should speed up the litigation. However all this is subject to the Rules made by the High Court. what kind of rules are made by the High Court are yet to be sseen and only then can the efficacy of this provision be commented on. . If the Defendant. refuses to accept summons (which is till now a common problem), whether it is served personally by the proper officer through any of the new modes introduced, the court on being intimated, can issue a declaration to the effect that the summons have been duly served. Rule 9 (5) (what is the effect of such a declaration? - contempt of court?)
(c )	Filing of Defendants written statement	The defendant has to submit the written statement within 30 days of the service of summons. This may be extended upon an application to the court, up to a maximum of 90 days Reasons for granting extension to be recorded in writing (as per amended Rule 1 sub rule (i), Schedule I of Order V,). Regarding the introduction of additional. documents at a later stage the similar rule applies to the defendant. as to the plaintiff mentioned above. If the defendantt. fails to file the written statement within the given time the court may pass any order against the erring party or a judgment / decree. Amended Order VIII Rule This provision would definitely further the cause of speedy justice..
II	TRIAL PROCEEDINGS
a)	Hearings in Court ADJOURNMENTS !	Once the hearing is commenced both the plaintiff and defendant shall not be given leave by the court to amend the suit unless the court is decides that in spite of due diligence being exercised the party could not have raised the matter. Rule 17 of Order VI Further if the party does not amend the suit within the given time then she shall not be allowed to unless the court extends the time. Rule 18 Of Order Vi The Act of 2002 has reintroduced the power of the Court to amend /strike out issues for the purpose of determining the matter in controversy between the parties. (Rule V of Order XIV). This power was taken away by the 1999 amendment. The court shall not grant more than three adjournments to either party to the suit. Any adjournment shall only be granted after the party requesting time shows sufficient cause. In each adjournment, the court shall make an order as to costs faced by the other party as a result of the adjournment. The court may also award higher costs if its thinks fit. Possibly a punitive measure
i)	Presentation of oral arguments	The court may fix a time limit for oral arguments of either of the parties as it thinks fit. (Sub Rule 3- D Rule 2, Order XVIII, First Schedule) Sometimes oral arguments tend to drag on for hours together. However there is also a provision by which written arguments can be submitted. This is a useful provision, because it offsets any possible injustice owing to the refusal of the Court to hear the arguments.
ii)	Examination in chief cross – examination by the other side. of both parties witnesses.	The examination in chief of the witnesses of both parties shall be rendered via affidavit and furnished to the court. The evidence (re-examination and Cross examination) may be taken by a commissioner appointed by the court for this purpose, on the same day. However usually (even after the new act, time is granted for cross examination)
b)	Pronouncement of Judgment and Decree/Order	Judgement to be ordinarily pronounced within 30 days subject to a maximum time limit of 60 days ( for extraordinary reasons) But this is also not absolute….( per amended Order XX) In cases where the court orders sale of the defendants property in pursuance of the claim awarded to the plaintiffs. As per the amendment, the defendant now has 60 days (as opposed to the earlier 30 days) for depositing the suit money in court. The amendment removes the anomaly between the Code and the limitation act, which granted 60 days to the defendant before making the sale absolute. The amendment is particularly beneficial for poorer litigants who now have additional time to come up with the funds.
c)	Revision of Lower courts Order	Section 115 has been amended to the disadvantage of litigants. Under the amended provision, when a party files a Civil Revision Petition aggrieved by the Order of a lower Court, the High Court cannot reverse such Order except where the Order, if it had been made in favour of the Revisioner, would have had the effect of finally disposing of the proceedings. For example, if a Plaintiff in a suit wishes to make an amendment to the Plaint and the Trial Court rejects the application, the High Court cannot reverse this order, as it would not have finally disposed of the case if the Order had been in favour of the Plaintiff
d).	Appeal	The appeal process has been limited so that hence forth no appeal shall lie from the judgment of a single judge of a High court and no second appeal in any suit (irrespective of whether it comes up before the high court or a lower court) where the subject value of the original suit is up to Rs. 25,000/- (Substituted new section 102)
III.	SETTLEMENT OF DISPUTES OUTSIDE OF COURT	The Act of 1999, has introduced a new provision (S.89) where the court may by itself, proactively refer a dispute for alternative dispute resolution methods if it appears that elements of a settlement exist, which may be acceptable to the parties to the dispute. The Provision is a good one provided that it does not in any way prevent the parties themselves withdrawing the case so that they may settle through any mode of alternate dispute resolution that is acceptable to both parties.

SEBI gets Supreme Courts not to question Raju

The Supreme Court of India permitted the Securities and Exchange Board of India (Sebi) on Tuesday to interrogate former Satyam chairman B Ramalinga Raju and his brother, Rama Raju, in connection with the Satyam Fraud

A bench headed by Chief Justice K G Balakrishnan directed the Superintendent of Chanchalguda central prison to allow SEBI's investigating officer Sunil Kumar to question the Raju brothers.

SEBI had since January 8, the day after Ramalinga Raju disclosed a Rs 7,800-crore fraud in Satyam, been trying to quiz the two brothers. But the Rajus were arrested by the state CID police on January 9 and since became inaccessible.

The regulator then approached a local court for permission to interrogate the Rajus, but the plea was rejected on technical grounds.

When hearing of its appeal in the Andhra Pradesh High Court was repeatedly deferred, SEBI moved the apex court for "urgent relief".

The Supreme Court today also said that Kumar will intimate the jail authorities in advance as to who will be accompanying him for the interrogation of the Raju brothers.

SEBI would be probing if there was any insider trading angle to the fraud since Raju had disclosed falsifying profits for years -- which would have helped inflate share prices.

Maharashtra State Financial Corporation

MSFC is a statutory Corporation set up under the State Financial Corporations (SFCs) Act, 1951.

JURISDICTION :
State of Maharashtra (since 1962), State of Goa and the union Territory of Daman & Diu
(since 1964).

FUNCTIONS
To provide mainly the term loan assistance to small and medium scale industries for acquiring fixed assets like land, building, plant & machinery. Loans are presently extended for expansion, diversification, technology development, enlarging product mix / product range, quality improvement including ISO 9000 series certifications and also for Take-Over of Term Loan accounts from Banks . otherFinancial Institutions in case of good borrowers of the Corporation.

FEE BASED ACTIVITIES :
Preparation of Project Appraisal / Feasibility Report etc.

ORGANISATIONAL STRUCTURE :
Besides the Head Office at Mumbai (Bombay), MSFC has 7 Regional Offices and 12 Branch Offices in
Maharashtra and Goa.

The Regional Offices are located at Aurangabad, Kolhapur, Nagpur, Nashik, Pune & Thane in Maharashtra and at Panaji in Goa. The Branch Offices are located at Ahmednagar, Akola, Amravati, Beed, Chandraupr, Chiplun, Jalgaon, Latur, Nanded, Sangli, Satara and Solapur.

ELIGIBLE ACTIVITIES
i) Industrial Activities such as manufacturing, assembling, servicing, processing, preservation, transportation,
setting-up industrial estates, etc.
ii) Activities such as Nursing Homes, Hotels, Restaurants, Tourism Related Activities
iii) Medical Practitioners are eligible for loan for acquiring Electro Medical and other equipment for professional
use.
iv) Qualified Professionals in Management, Engineering, Architecture, Accountancy etc desiring to undertake
expansion of their professional practice / consultancy ventures.
v) Other Service Activities declared as eligible under the SFCs Act.

vi) Proposed :
Commercial Complexes, Multiplexes, Marriage Halls, Group Housing / Residential Complex, etc.
The Small Scale Industrial Units should have SSI Registration while Service Enterprises should be registered with
the appropriate authority.

LOAN LIMIT : Rs. 5 Crore.
QUANTUM OF ASSISTANCE :
While deciding upon the quantum of loan, minimum promoters contribution and the prescribed Debt Equity Ratio
(DER) are taken into consideration. Higher margin and / or shorter repayment period may be insisted depending
upon the nature and rate of technological obsolescence and the risk perception for the project.

DEBT EQUITY RATIO (DER)
Permissible DER for the project is upto 2:1 depending upon the loan amount, nature of assets and risk perception but DER upto 1:1 may be insisted upon keeping in mind viability and collateral security. "Equity" includes promoters' contribution, share capital, seed capital, State Govt. subsidy, portion of accruals, deposits / interest free unsecured loanss (Quasi Equity) raised by the promoters etc. "Debt" includes long term loans, deferred payments, etc.

PROCEDURE FOR SANCTION OF LOAN :
The loan application forms are available free of charge which are to be submitted to the concerned Regional Office
duly filled in with required additional particulars. Preliminary clearance for further processing of the proposal is
given after scrutiny of the proposal and interaction with the promoters by the Screening Committee at the Regional Office or at the Head Office depending upon the loan amount. Detailed Technical and Financial Appraisal of the proposal for the loan is submitted to the Appropriate Authority for sanction of the loan.

PROCESSING FEE

Loan upto Rs.10 Lakh	:	0.7% of the amount sanctioned
Loan above Rs. 10Lakh	:	1% of the amount sanctioned subject to the maximum of Rs.1 Lakh

DISBURSEMENT OF LOAN :
Loan amount is disbursed after the promoters have complied with the terms & conditions stipulated in the
Sanction Letter.

Disbursement is made in stages depending upon the fixed assets acquired / created. Promoters have to furnish
necessary documents, valuation reports and Chartered Accountant's Certificate in the prescribed format to prove
the expenditure incurred. Physical verification of the assets acquired / created is carried out before disbursement
of loan.

The disbursement amount is released by keeping the margin stipulated on the value of the specific assets upon
completion of the legal formalities / documentation.

SECURITY :
i. Prime security in the form of fixed assets viz. land, building, plant & machinery financed by the Corporation
ii. Collateral security depending upon the type of project, location, technological obsolescence, risk perception
etc.

INTEREST RATES :
As may be decided by the Board of Directors of the Corporation from time to time. Presently the rate of interest is 13 % with 1.5 % incentive for prompt payment of principal installments and interest on due dates.

REPAYMENT PERIOD
Repayment schedule is fixed on the basis of the debt servicing capacity of the project. Maximum 8 years' repayment period inclusive of the moratorium period up to 2 years from the date of first disbursement is given. For certain schemes shorter repayment period is prescribed. Only interest payment commences during the moratorium period.

For repayment of Principal : Quarterly Installments.
For payment of interest : Monthly installments.

PERFORMANCE HIGHLIGHTS (Till March - 2004)
Term Loans Sanctioned Investment Catalysed No. of Units Assisted Employment Generated Share of SSI Sector (Numberwise)	Rs. 3417 crore Rs. 6672 crore 58549 14.09 Lakh 94 %

HEAD OFFICE
United India Building, 1st Floor, Sir P. M. Road, Fort, Mumbai - 400 001
* Tel. : (022) 22691911 / 12 / 13 / 14 * Fax : (022) 22691915
* E - Mail : msfchead@vsnl.net * Web : www.msfcfinance.com

REGIONAL OFFICES :
* Mumbai - Konkan * Thane, Daman & Diu * Pune * Nashik * Kolhapur * Aurangabad
* Amravati * Nagpur and * Panaji (Goa)