Month: November 2018

DATA PROTECTION LAWS

In the global information economy, personal data have become the fuel driving much of current online activity. Every day, vast amounts of information are transmitted, stored and collected across the globe enabled by massive improvements in computing and communication power. Some broadband packages of today are 36,000 times faster than what dial-up Internet connections could offer when the first Internet browser was introduced two decades ago. In developing countries, online social, economic and financial activities have been facilitated through mobile phone uptake and greater Internet connectivity. The transborder nature of the Internet as well as the speed and sheer volume of communications pose problems to cyber security such as those related to the identification, investigation, jurisdiction, criminalization and prosecution of those who commit security and data breaches. In this environment, security of information is a concern for governments, businesses and consumers alike.

Protecting data and privacy rights online is a significant and increasingly urgent challenge for policymakers.

Data protection regulation is high on the political agenda at the time of writing, as evidenced by a number of current developments.

  • The United Nations in 2015 appointed a Special Rapporteur on the right to privacy.
  • The European Union is finalizing a new General Data Protection Regulation to replace the European Directive on Data Protection, which has been a prominent source of regulation for twenty years.
  • Data protection has been included in several international trade agreements.
  • Data protection regulation has been considered in several high profile court cases in relation to national surveillance issues.
  • Numerous countries are drafting new data protection laws or are reviewing existing ones.
  • The European Union and the United States have re-negotiated a long standing cross- border data protection agreement (the former EU-US Safe Harbor Framework, now to be known as the EUUS Privacy Shield).
  • Several global and regional organizations have issued (or are developing) multiparty agreements and/or guidelines on data protection.

Article XIV ( c) (ii) of the WTO’s General Agreement on Trade in Services (GATS) permits trade restrictions

that are necessary for “the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts”, specifying that “such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on trade in services”.

Article XIV of the WTO General Agreement on trade in Services. Article 14.11 allows restrictions on cross border transfers if they satisfy four requirements:

(i) the law must be necessary “to achieve a legitimate public policy objective” – this appears to be very straightforward requirement;

(ii) the law must not be “applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination

(iii) the law must not be “a disguised restriction on trade”; and

(iv) the law must “not impose restrictions on transfers of information greater than are required to achieve the objective”.

This is a very high level provision that recognizes the positive aspects of data protection regulation.

However, it is also well recognized that if data protection regulations go ‘too far’ they may have a negative impact on trade, innovation and competition. While the potential need to control cross-border flows of data for privacy purposes is clear, the application of such controls in an increasingly interconnected world is very challenging. ICT developments, such as cloud services, are making things even more complex, with processing entities not necessarily aware about where data are located.

RAJASTHAN HC ISSUES STAY ON REAL ESTATE REGULATORY AUTHORITY

Rajasthan HC in Grj Distributors and Developers private limited Vs Union of India, through secretary, Govt. Of India-

Rajasthan HC issued stay order on 31.7.2018 staying the execution of the orders passed by the Real Estate Regulatory authority. Thus the order passed by the RERA authority could not have been executed.

The Division Bench of the Rajasthan High Court has clarified further that the order as under:

“Taking into consideration the peculiar facts of this case, we stay execution of the orders passed by the Real Estate Regulatory authority, till next hearing date.”

It is on this ground that the Real Estate Regulatory authority and even the tribunal is proceeding with the hearing of the case other than the cases where interim order has been passed by the court.

The issue was raised as to whether the Real Estate Regulatory authority/Tribunal can hear the matter without it proper constitution. A period of one year has been given under the act for its constitution. but there is no proper authority set up even after the expiry of one year period. A period of one year has been given under the act for its constitution.

That even after the period of one year given under the act No action for it was initiated by the state govt. according to the state govt. the provisions of the Act for constitution of the authority or the Tribunal within a period of one year is directory in nature. The court said that the period of one year is directory or mandatory would be decided in the writ petition. Since the constitution of the Authority and the tribunal is in question, they should not undertake hearing till the matter is decided. As there is code of conduct imposed by the Election commission in the state that needs to be decided.

Therefore till then hearing in all the cases would be deferred by the authority as well as the tribunal so that it can be taken up by the duly constituted Authority and Tribunal.

RERA Karnataka orders Refund of money with interest

RERA Karnataka orders Refund of money with interest

Recently RERA Karnataka In some of the cases against the Builder/Developer who has defaulted in handing over the constructed  house, Villa and Apartment the  Aggrieved home Buyers have approached the RERA Karnataka Seeking for cancellation of Agreement and Refund of the amount with interest as per RERA provisions.

The home buyers have entered into agreement with the builder/developer in the year 2014-15 and as per the Agreed terms the builder/developer was supposed to handover the possession of the homes within a period of 24 months from the date of Agreement and the hard truth was like any other builder/developer here also there was a default of the builder/Developer and he has not handed over the possession to home buyers who have paid 70 to 80 % of the amount to purchase the home. In the meanwhile there was a dispute between the Builder/Developer and the landowner, the Builder having entered into a registered JDA has defaulted even with the landowners and the quality of construction was very bad that the building would have collapsed within few years of the construction as construction activity was not carried out properly. thus the landowners have got stay in the court. the construction has come to a standstill with no development in the project. Thus the home buyers who had entered into agreement with the Builder/developer came asking for cancellation of Agreement with Builder/Developer and to refund the amount with interest. The RERA Karnataka has after hearing the case issued the orders for refund of the amount with interest at the rate of 10.25% interest on the amount paid by the home buyers.

Procedure in a civil suit to determine the objections raised on the payment of court fees.

Procedure in a civil suit to determine the objections raised on the payment of court fees.

In a civil suit filed by the plaintiffs, the defendants in the usual course of filing their objections/written statement raise an objection that the court fee paid in insufficient or the court fees in not paid properly. in this regard a question arose and the Full bench of High Court of Karnataka has answered how to determine the court fees in a case where there is an objection on the payment of court fees. the question was:

“As to whether, by virtue of sec 11 of the Karnataka court fees and suit valuation act, 1958, when an issue of valuation and court fees is raised on the objections of defendants, the same is invariably required to be tried as a preliminary issue and before taking evidence on other issues?”

The court has held that as per Sec.11(2)&(5) of the act, the determination shall be taken by the court before the evidence is recorded on the merits of the claim in its discretion and such discretion shall be conditioned by requirements of rule 2 Or 14 of CPC. In our view, if the court  finds that the question of valuation and or court fees as raised by the defendant relates to the jurisdiction of the court as it may try such an issue first and before the evidence is recorded on the merits of the claim: and in other eventualities the court may examine such a question of valuation and/or court fees, but not necessarily as preliminary issue of before the evidence on the other issues.

Unsigned Arbitration Agreements not invalid in all cases: SC

Unsigned Arbitration Agreements not invalid in all cases: SC

Section 7(4) only further adds that an arbitration agreement would be found in the circumstances mentioned in the three sub-clauses that make up Section 7(4). This does not mean that in all cases an arbitration agreement needs to be signed.’…

Supreme Court in Caravel Shipping services pvt ltd.., VS  M/s Preimer Sea foods Exim pvt ltd.,

a document styled as “Multimodal Transport Document/Bill of Lading” dated 25.10.2008. This Bill of Lading states that the Consignor/Shipper is one M/s Premier Seafoods Exim Private Limited of Kerala, and that Caravel Shipping Services Private Limited, who is the appellant before us, is the agent who facilitates transport. The very opening Clause of the Bill of Lading specifies:

“In accepting this Bill of Lading the Merchant expressly agrees to be bound by all the terms, conditions, clauses and exceptions on both sides of the Bill of Lading whether typed, printed or otherwise.”

The Respondent filed a Suit being O.S. No. 9 of 2009 before the Sub-Judge’s Court in Kochi to recover a sum of Rs.26,53,593/- in which the Bill of Lading was expressly stated to be a part of cause of action. Soon after the Suit was filed, an I.A. being I.A. No. 486 of 2009 was filed by the appellant under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) in which it was pointed out to the Court that an arbitration clause was included in the printed terms annexed to the Bill of Lading.

The law in this behalf, in Jugal Kishore Rameshwardas vs. Mrs. Goolbai Hormusji, AIR 1955 SC 812, is that an arbitration agreement needs to be in writing though it need not be signed. The fact that the arbitration agreement shall be in writing is continued in the 1996 Act in Section 7(3) thereof. Section 7(4) only further adds that an arbitration agreement would be found in the circumstances mentioned in the three sub-clauses that make up Section 7(4). This does not mean that in all cases an arbitration agreement needs to be signed. The only prerequisite is that it be in writing, as has been pointed out in Section 7(3).

Hon’ble Supreme court has held that the Arbitration agreement need not necessarily be a signed document to invoke the arbitration clause of the agreement. it prerequisites that the agreement shall be in writing.

CONDITIONAL GIFT DEED AND CANCELLATION

The Hon’ble supreme court has held that a conditional gift deed and its cancellation is valid while the condition of such a gift deed is not satisfied.

Question was: whether a document styled as gift deed but admittedly executed for consideration, part of which has been paid and the balance promised to be paid, can be treated as formal document or instrument of gift. Another related question is whether a gift deed reserving the right of the donor to keep possession and right of enjoyment and enforceable after the death of the executant is a gift or a will.

A purported gift deed was executed by Donor in favor of the done, in consideration that the done will take care of her and her husband. further gift deed also clearly mentioned that the gift would take effect after the death of herself and her husband.

later on Donor who had executed the gift deed has cancelled by executing the cancelation of a gift deed. A suit came to be filed seeking for declaration of such cancellation as null and Void and to declare the donee as having right over the property under gift deed.

Under sec. 122 to 126 of Transfer of Property act 1882, mentions Gift Deed and Circumstances of gift deed. Under sec.126 of the act, Donor and donee may agree that on certain specified event the gift shall take place and such gift shall be revocable. as such in the present case as it is very clear that the Gift deed shall take place only after the death of the donor and her husband, thus it’s a revocable and gift to take place on happening of specified event.

A conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime of the donor. When a gift is incomplete and title remains with the donor the deed of gift might be cancelled.

A conditional gift only becomes complete on compliance of the conditions in the deed. That there was no completed gift of the property in question by the Donor to the Donee and the Donor was within her right in cancelling the deed.