Q.1.What are the sources of Indian Law?

Primary sources 5

Secondary sources 5

Answer:-

The primary sources of Indian Law are:

i. Custom: - Customs have played an important role in making law and therefore are also known as
customary laws.

ii. Judicial precedent (stare decisis):- Judicial precedent is another important source of laws. It is
based on the principle that a rule of law that has been settled by a series of decisions generally
should be binding in court and followed in similar cases.

iii. Statute: - Statutory law or legislation is the main source of law. This law is created by legislation of
bodies such as the Parliament. It is called statute law because it is the writ of the state and is in
written form (jus scriptum).

iv. Personal law: - Many times, a point of issue between the parties to a dispute is not covered by any
statute or custom. In such cases, courts are required to apply the personal law of the parties.

Secondary sources of Indian law The secondary sources of Indian Law are English Law and principles
of Justice, Equity and Good Conscience.

English Law

The chief sources of English law are:

i. Common law – This source consists of all those unwritten legal doctrines embodying customs and
traditions developed over centuries by the English courts.

ii. Equity – The literal meaning of the term equity is natural justice. In its technical and narrower
sense, equity means a body of legal doctrines and rules emanating from the administrations of
justice, developed to enlarge, supplement or override a narrow rigid system of existing common
laws. However, like the common law, equity is also unwritten.

iii. Statute – Statutes consist of laws passed by the legislature and is the written law. The authority of
the Parliament is supreme but is subject to limitations laid down by the Constitution. The
Parliament can pass laws as it pleases and can override its own previous acts and decisions of
courts. A statute, therefore, is superior to and can override rules of common law or equity.
iv. Law merchant or Lex Mercatoria – It is a source of law based on customs and usage prevalent
among merchants and traders of the Middle Ages. Its evolution, like that of equity, can be traced
to the unsuitability of the common law for commercial transactions. The common law was found
to be unsatisfactory in dealing with disputes between merchants. The merchants, therefore,
developed certain rules based on customs and usages to govern their mercantile transactions.
These rules are known as Lex Mercatoria or the law merchant.
Q.2. Explain the ways for breach of Contract and remedies for breach of contract.

Breach of contract 5

Remedies for breach of contract 5

Answer:-

Breach of contract:-

A breach of contract is one party’s failure to live up to the promises under a contract without a
legal excuse. If the promisor has not performed his/her promise in accordance with the terms of
the contract or where the performance is not excused by tender, mutual consent or impossibility
or operation of law, then this amounts to a breach of contract on the part of the promisor. The
consequence is that the promisee becomes entitled to certain remedies. The breach of contract
may arise in two ways – anticipatory and actual.

i. Anticipatory breach of contracts: This occurs when a party repudiates the contract before the
time fixed for performance or when a party by their own act disables themselves from performing
the contract.

ii. Actual breach of contracts: This occurs by failure to perform as promised or by making it
impossible for the other party to perform. The actual breach by failure to perform may take place
at the time when performance is due or during the performance of the contract. Thus, if a person
does not perform his/her part of the contract at the stipulated time, he/she will be liable for its
breach. When someone breaches a contract, the other party is no longer obligated to keep
his/her end of the bargain. The other party may urge the breaching party to reconsider the
breach; for a business contract, the aggrieved party may get help from consumers’ associations,
sue for damages or consider other remedies.

Remedies for breach of contract:-

The usual remedy for breach of contracts is to sue for damages. The main type of damages awarded
is ordinary damages. This is the amount of money that would take to put the aggrieved party in a
position as if there had not been a breach of contract. The idea is to compensate the aggrieved party
for the losses suffered as a result of the breach of contract.

Sections 26-30 of the Act declare certain agreements to be void. Some of them that have already
been explained are agreements entered into through a mutual mistake of fact between the parties
(Section 20); agreements, the object or consideration of which is unlawful (Section 23); agreements,
part of consideration of which is unlawful (Section 24); agreements made without consideration
(Section 25). Agreements, the meaning of which is uncertain or capable of being made certain, are
void. Uncertainty may be regarding the existence, quantity, quality or price or title of subject matter.
Q.3. i) Narrate the facts and judgement in the case Howell vs. Coupland.

ii) Who is an unpaid seller? What are the rights enjoyed by an unpaid seller under extant
provisions of law?

Howell vs. Coupland 3

Unpaid seller and his rights 7

Answer:-

Howell vs. Coupland: - In this case, the seller agreed to sell 200 tonnes of potatoes to be grown by
him, to the buyer at £2 a ton. Though he had the resources to grow 200 tons, an attack of pestilence
killed most of the crop and he was able to deliver only 80 tons. The buyer instituted a suit against
the seller for breach of contract and held that the contract was void, as it was an agreement to sell
future goods and neither party is liable for impossibility of performance.

Unpaid seller and his rights:-

A seller of goods is an unpaid seller when:

i. The entire price has not been paid or tendered.

ii. A bill of exchange or other negotiable instrument has been received as conditional payment and
the condition on which it was received has not been fulfilled by reason of the dishonour of the
instrument or otherwise.

Rights of an unpaid seller: - The rights of an unpaid seller may broadly be classified under two
heads, namely:

(i) Rights under the Sections 73-74 of the Indian Contracts Act, 1872, i.e., to recover damages for
breach of contract.

(ii) Rights under the Sale of Goods Act, 1930:

a. Rights against the goods

b. Rights against the buyer personally.

SET-2

Q.1. Explain the kinds of Agencies

Kinds of Agencies 10

Answer:-

Kinds of Agencies:-

i. Express agency (Section 187):- A person may be appointed as an agent either by word of mouth or
by writing. No particular form is required for appointing an agent. The usual form of a written
contract of agency is the power of attorney on a stamped paper.
 ii. Implied agency (Section 187):- Implied agency arises from the conduct, situation or relationship of
parties. Implied agency, therefore, includes agency by Estoppel, agency by holding out and agency
of necessity.

iii. Agency by Estoppel (Section 237):- When a person has, by his conduct or statements, induced
others to believe that a certain person is his agent, he is stopped from subsequently denying it.
The principal is precluded from denying the truth of agency that he himself has represented as a
fact, although it is not a fact.

iv. Agency by holding out: - Some affirmative conduct by the principal is necessary to create an
agency by holding out, though it is part of the Law of Estoppel.

Example: Puran allows his servant Amar to buy goods for him on credit from Komal and pays for
them regularly. On one occasion, Puran pays his servant in cash to purchase the goods. The
servant purchases goods on credit, pocketing the money. Komal can recover the price from Puran
since through previous dealings, Puran has held out his servant Amar as his agent.

v. Agency of necessity (Section 189):- This arises where there is no express or implied appointment
of a person as an agent for another, but a person is forced to act on behalf of a particular person.

vi. Agency by ratification (Sections 196-200):- Where an agent does an act for his principal, but
without knowledge of authority, or where he exceeds the given authority, the principal is not held
bound by the transaction. However, Section 196 permits the principal, if he so desires, to ratify the
act of the agent. If he so elects, it will have the same effect as if the act was originally done by his
authority. An agency in such a case is said to be created by ratification.

vii. Agency coupled with interest: - An agency is said to be coupled with interest when authority is
given for the purpose of securing some benefit to the agent. In other words, where the agent has
himself an interest in the subject-matter of the agency, the agency is one coupled with interest.

Q.2. Explain the nature and scope of complaints under the Consumer Protection Act?

Persons competent to make complaints 3

Place of complaint 1

Procedure for filing a complaint 2

Admission of complaint 2

Power of the District Forum 2

Answer:-

Persons competent to make complaints:-

a. The consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such
service provided or agreed to be provided. In case of death of a consumer, the legal heir or
representative can file a complaint.
b. Any recognised consumers association namely, any voluntary consumer association registered
under the Companies Act, 1956, or any other law for the time being in force. It is not necessary
that the consumer is a member of such an association.

c. One or more consumers, where there are numerous consumers having the same interest, with the
permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested.

d. The Central or the State Government.

Place of complaint:-

i. If the value of the goods or services and the compensation claimed does not exceed Rs. 20 lakhs,
then the complaint can be filed in the District Forum within the local limits of whose jurisdiction
the opposite party actually resides or carries on business or has a branch office (Section 11).

ii. If the value of the goods or services and compensation claimed exceeds Rs. 20 lakhs but does not
exceed rupees one crore, the complaint can be filed before the State Commission (Section 17).
Where a joint petition is filed on behalf of a large number of victims, it is the total amount of
compensation claimed in the petition (and not the individual claims) that will determine the
question of jurisdiction. The State Commission shall also have the jurisdiction to entertain appeals
against the orders of any District Forum within the State (Section 17).

iii. If the value of goods or services and the compensation claimed exceeds Rs. 1 crore, the complaint
can be filed before the National Commission (Section 21). The National Commission shall also
have the jurisdiction to entertain appeals against the orders of any State Commission (Section 21).

Procedure for filing a complaint: - There is no fee for filing a complaint before any of the aforesaid
bodies. The complainants or their authorised agent can present the complaint in person. The
complaint can also be sent by post to the appropriate Forum/ Commission. The complaint should be
addressed to the President of the Forum/Commission.

Admission of complaint (Section 13):-

a. Procedure in respect of goods where the defect requires no testing or analysis: The District
Forum should send a copy of admitted complaint to the opposite party mentioned in the
complaint within 21 days of admission. He should be instructed to provide his version of the
case within 30 days or may be granted a further extension of 15 days, at the discretion of the
Forum.

b. Procedure in respect of goods where the defect requires analysis or testing: With respect to
goods which need to be tested or analysed for defects, the District Forum should obtain a
sample of goods from the complainant and should take steps to seal and authenticate the
sample and send it to the appropriate laboratory for testing or analysis. This exercise should be
carried out to ascertain whether the goods suffer from defects alleged by the complainant and
the results of such tests must be provided within 45 days.

Power of the district forum [Section 13(4)]:- District Forum shall have the same powers as are
vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit in respect of the
following matters, namely:
 a. Summoning and enforcing the attendance of any defendant or witness and examining the
witness on oath
b. Discovery and production of any document or other material object producible as evidence
c. Reception of evidence on affidavits
d. Requisitioning of the concerned analysis or test from the appropriate laboratory or from any
other relevant source
e. Issuing any commission (i.e., warrant conferring authority) for the examination of any witness
f. Any other matter that may be prescribed.

Q.3. Explain crossing of Cheques and its types.

Crossing of Cheques 5

Types 5

Answer:-

Crossing is defined as the act of drawing two diagonal or transverse parallel lines on the face of the
cheque. Crossing does not affect the negotiability of the instrument as a crossed cheque is
negotiated in the same way as an uncrossed one. It affects the mode of payment, as it is a direction
to the banker not to pay money across the counter and money is to be paid only through the banker.
Crossing can be cancelled only by drawer of the cheque and is recognized as a material part of the
cheque.

a. Open cheques – These are paid over the counter of the bank and need not be put through a
bank account or paid through a bank. They are subject to risk of fraud and forgery in the course
of circulation.
b. Crossed cheques – Crossing is a unique feature associated with a cheque affecting to a certain
extent the obligation of the paying banker and its negotiable character. These afford protection
to receiving and collecting bankers. Crossing provides a buffer of safety in circulation and
narrows the risk of fraud or loss, especially if the cheque is sent by post or courier.

Types of crossing: - Crossing may be either general or special. The term general crossing implies the
addition of two parallel transverse lines across the face of the cheque, with or without words “&Co.”
or “Not Negotiable” (Section 123). Figure a. depicts the samples of general crossing.

Fig. a: Samples of General Crossing

‘Special Crossing’ implies the specification of the name of the banker on the face of the cheque.
Section 124 in this regard reads: “Where a cheque bears across its face, an addition of the name of
banker, either with or without the words ‘not negotiable’, that addition shall be deemed a crossing,
and the cheque shall be deemed to be crossed specially, and to be paid to that banker”. The drawing
of two parallel lines is not necessary in case of a specially crossed cheque. The object of special
crossing is to direct the drawee banker to pay the cheque only if it is presented through the
particular bank mentioned therein. Thus, it makes transactions through cheques safer. Figure a.
depicts the samples of special crossing.

Fig.a: Samples of Special Crossing