Category: Bangalore University B.com Notes

Competition Act, 2002 is an act that is provisioned keeping in view the economic development of the country and establishes a commission to prevent the practices which have adverse effect on the competition to promote and sustain competition in the Indian market. Also, it is established to protect the interests of consumers and to ensure the freedom of trade that is carried on by the various participants in the Indian market. It successfully replaced the Monopolies and Restrictive Trade Tactics Act, 196 and came into effect on 1st Sept 2009.

In cases where the compliance of Competition Act is breached, the Commission have various reforms to levy a penalty of such an entity. Let’s see various scenarios under Competition Act, 2002 where the Commission can levy a penalty of a business entity or person.

Following are the penalties under Competition Act, 2002:

Commission can whole sole setup an enquiry to see and judge the compliance of various orders under Competition Act 2002, by a business entity. In case the person or entity fails to comply with the orders and/or directions set up under the Competition Act 2002, he is liable to be punished with a monetary fine which could extend up to one lakh rupees for each day of non-compliance. However, this penalty cannot be more than ten crore rupees at single instance. This is especially applicable towards sections 27, 28, 31, 32, 33, 42A and 43A of the Competition Act 2002.

In case the person breaches the orders and directions of the Competition Act 2002 under sub section (2) of Section 42, then he shall be punished with an imprisonment for a term which may extend up to three years and /or with a monetary penalty of twenty-five crores as the Chief Metropolitan Magistrate of Delhi may deems fit.

However, a person or entity under this Act is empowered to make an application to Appellate Tribunal about recovery of compensation for any loss or damage that have been done due to such a non-compliance by another person or entity. And the Commission then can either approve, sanction or exempt the non-compliant company in this relation and order them to fulfill the losses.

Penalty for failure to comply with the directions of commission and Director General:

In any case if a person or entity fails to comply with the direction given by the Commission under the sub-section 2) and 4) of section 36 or the directions given by the Director General while exercising the powers referred to in sub section 2) of section 41, and that too without any reasonable cause, then such a person will be punishable and shall have to fulfill a fine which could extend up to the sum of one lakh rupees for each dayof non-compliance. However, this sum of penalty could not exceed one crore rupees.

Penalty for non-furnishing of Information on combinations:

In case any person or entity fails to give notice to the Commission under sub-section (2) of section 6, then such a Commission shall be imposed by a penalty which may extend up to one percent of the total turnover of the assets of such a combination.

Penalty for making false statement or omission to furnish the material information:

In case a person or a party makes statement which is false in any material or they know that they are furnishing a false material and/or omits to submit the material towards compliance of the Competition Act 2002, then such a person is liable to a penalty of not less than fifty lakh rupees and it may extend maximum to one crore rupees as may be determined by the Commission.

Penalty for the offences in relation to furnishing the information:

In case a person who is required to furnish an information under the Competition Act 2002 in form of any or documents or any other kind and makes a statement which he knows is falls and/or omits some of the material information, or willfully alter them or try to suppress or destroy any such document then such a person is liable to be punished with a monetary fine which may extend up to one crore rupees.

Till the 1960s, India was plagued with cases of black marketeering, hoarding, inadequate weighing and food adulteration. These were problems that affected the well-being of the consumer and amount to consumer exploitation.

The consumer movement began in the 1960s and gained momentum in the 1970s. Consumer dissatisfaction started to be demonstrated through the written word and in articles and newspapers.

The level of dissatisfaction with sellers and manufacturers and their practices resulted in consumers raising their voice. Resultantly, the government decided to give recognition to consumer protection by enacting the Consumer Protection Act on 24th December 1986. The Act was aimed at protecting the rights of the consumers and ensuring free trade in the market, competition and accurate information to be available. This day is now observed as National Consumers’ Day.

A consumer is an important participant in the market. In case of consumer exploitation, the rights of the consumer must be protected. There are six consumer rights as mentioned in the regulatory Consumer Protection Act of 1986.

Consumer Rights

There are six broad consumer rights defined as per the Consumer Protection Act, 1986. These are:

Right to Safety

The Consumer Protection Act defines this right as a protection against goods and services that are ‘hazardous to life and property’. This particularly applies to medicines, pharmaceuticals, foodstuffs, and automobiles. The right requires all such products of critical nature to life and property to be carefully tested and validated before being marketed to the consumer.

Right to Information

This right mentions the need for consumers to be informed about the quality and quantity of goods being sold. They must be informed about the price of the product and have access to other information specific to the product that they wish to consume.

Right to Choose

The consumer must have the right to choose between different products at competitive prices. Thus, the concept of a competitive market where many sellers sell similar products must be established to ensure that the consumer can actually choose what to consume and in what quantity. This is to avoid monopoly in the market.

Right to Seek Redressal

When a consumer feels exploited, he/she has the right to approach a consumer court to file a complaint. A consumer court is a forum that hears the complaint and provides justice to the party that has been hurt. Thus, if the consumer feels he/she has been exploited, they can approach the court using this right.

Right to be Heard

The purpose of this right is to ensure that the consumer gets due recognition in consumer courts or redressal forums. Basically, when a consumer feels exploited, he has the right to approach a consumer court to voice his complaint. This right gives him/her due respect that his/her complaint will be duly heard. The right empowers consumers to fearlessly voice their concerns and seek justice in case they are exploited.

Right to Consumer Education

Consumers must be aware of their rights and must have access to enough information while making consumption decisions. Such information can help them to choose what to purchase, how much to purchase and at what price. Many consumers in India are not even aware that they are protected by the Act. Unless they know, they cannot seek justice when they are actually hurt or exploited.

Consumer Protection Councils:

The Act provides for setting up a Central Consumer Protection Council by the Central Government and State Consumer Councils by each state of India. The Central Consumer Protection Council shall consist of (1) the Minister in Charge of Consumer Affairs in the Central Government who shall be its chairman and such number of other official or non-official members representing such interests as prescribed.

It is required by the Act that Central Consumer Protection Council will meet as and when necessary. However, at least one meeting of the Central Council must be held every year. The objects of the council are to protect the rights of consumers and promote their interest as listed above from (a) to (f).

The State Consumer Councils to protect consumer rights as per amendment in the Act in 1993 will consist of (1) the Minister in Charge of Consumer Affairs in the State Government concerned and members of other officials and non-officials representing such interests as may be prescribed by the State Governments. As in the case of the Central Council, the objects of State Councils will be to protect the rights of consumers as listed above from (a) to (f) within the State.

Consumer Disputes Redressal System:

Under the Consumer Protection Act 1986 three-tier consumer disputes redressal system at the District, State and National levels has been set up.

Thus the Act provides for establishing the following consumer redressal agencies:

1. District Consumer Forum in each district of a state set up by the State Government.
2. State Consumer Commission in each state set up by each State.
3. National Consumer Commission set up by the Central Government.

Composition of Consumer Redressal Agencies:

According to Consumer Protection Act 1986 each District Consumer Forum set up in each district of a State shall consist of a person who is or has been or is qualified to be a district judge. This person will work as president of the district consumer forum.

Two eminent members who have adequate knowledge and experience and have the ability in dealing with problems concerning law, commerce, economics, accountancy, industry, public affairs or administration and one of whom shall be a lady member, especially who is a social worker.

A District Forum has the jurisdiction to deal with the complaints where the value of good or service and the compensation claimed, if any, does not exceed Rs. 20 lakh (as per amendment in the Act in 2002). A complaint by consumers will be filed in a District Forum in case when the opposite party or each of the opposite party if there are more than one resides or carries on business within the district concerned at the time of filing the complaint or any one of the party (if there are more than one) residing or carrying on business in the district at the time of the filing of the complaint if the district forum grants permission for this.

The State Consumer Commission shall consist of:

(1) A person who is or has been a judge of a high court appointed by the State Government,

(2) Two other members of high standing and eminence who have adequate knowledge or experience concerning the problems relating to law, commerce, economics, industry, public administration etc. one of whom shall be a woman.

The State Consumer Commission as per the amendment of the Act in 2002 shall have the jurisdiction to entertain complaints where the value of goods or services and compensation claimed if any exceeds Rs. 20 lakh but is not more than Rs. 1 crore.

The State Consumer Commission will also entertain appeals against the orders of District Forums within the State. Besides, the State Consumer Commissions have been authorized to call for the records and give appropriate orders in case of any consumer dispute pending before the District Forum within the State or has been decided by it if the State Commission finds that a District Forum has exercised a power not vested in it by the Act or has failed to exercise a power or jurisdiction vested in it or acted illegally in exercise of its powers.

The National Consumer Commission will consist of:

(a) A person who is or has been a judge of the Supreme Court and is appointed by the Central Government in consultation with Chief Justice of India. He will also work as president of the national commission,

(b) Four other members of eminence having good knowledge or experience and ability to deal with the problems relating to commerce, economics, law, industry, public affairs or administration and one of whom shall be a woman.

National Consumer Commission has the jurisdiction:

(1) To entertain complaints where the value of goods or services and compensation claimed if any is, according to Amendment Act 2002, one crore or more;

(2) National Commission is authorized to hear appeals against the order of any State Consumer Commission;

(3) The Central Commission has the right to call for the records from the State Commissions.

It is important to note that all forums, commissions appointed under the Consumer Protection Act are in substantial matters not different from the ordinary civil courts. They are quasi-judicial tribunals created to render speedy justice

Remedial Action:

It may be noted that a complaint to a redressal agency may be filed by:

(a) An individual, consumer;

(b) Recognized consumer association,

(c) More than one consumers who have the same interest; and

(d) The State or Central Government. The complaint to a redressal agency must be in relation to goods sold or delivered or service provided to the complainant.

If the redressal agency is convinced that any of the allegations in the complaint filed before it is true, it shall issue an appropriate order to the opposite party.

This order may be any of the following types:

1. To remove the defect if found to be true by the appropriate laboratory from the good in question;
2. To replace the defective goods with the new goods of the same type free from the defects;
3. To return to the complainant price of the defective good or charges paid by him;
4. To pay the compensation to the complainant as may be decided by the redressal agency for the loss suffered by him;
5. To remove the defects or deficiencies in the service rendered to the individuals;
6. To stop the unfair or restrictive trade practice or give undertaking not to repeat in future;
7. Not to supply hazardous goods;
8. To withdraw the hazardous goods being offered for sale; and
9. To give adequate costs to the parties in question.

Penalties:

The Consumer Commissions are authorized to impose penalties on trader or person against whom complaint is made if he fails to comply with the order of the redressal agency. The penalty or punishment may involve imprisonment for a period not more than 3 years or a fine of not more than 10 thousand rupees or both.

The Consumer Protection Amendment Act 2002:

The Consumer Protection Act 1986 held great hopes for the helpless consumers who have been denied fair deal by the unscrupulous producers or traders. In the implementation of Consumer Protection Act 1986 some deficiencies in the Act were noticed. Therefore, some important amendments were made in the Act by Consumer Amendment Act 2002. With this amendment all the redressal agencies (District Forums, State Consumer Commissions and Central Consumer Commission) have been given the powers of a judicial magistrate of a first class for trial of offences within their jurisdiction, subject of course to the right of appeal from a lower redressal agency to a higher one.

The important changes made by the Consumer Protection Amendment Act 2002 are the following:

1. Both MRTP Act and Consumer Protection Act deal with unfair and restrictive trade practices. Amendment made in Consumer Protection Act in 2002 has clarified that the expression ‘restrictive trade practices’ will also include delay in supply of goods or services and rise in prices in the mean time.
2. Provisions regarding unfair trade practices have been made more stringent. It is now provided that if the representations contained in an advertisement for the sale or supply of a good or service are misleading, the advertiser can be held responsible for taking corrective steps at his own cost apart from other obligations.
3. The District Forums would be able to deal with cases involving the payment of compensation of Rs. 20 lakhs against the pre-existing Rs. 5 lakhs. Similarly, the State Consumer Commissions can now deal with cases involving compensation up to Rs. 1 crore while National Consumer Commission can deal with cases involving compensation of Rs. 1 crore or more instead of pre-existing Rs. 25 lakhs.
4. In the event of the death of the complainant, amendment in the Act in 2002 now provides for substitution of his legal representatives. Surviving legal representatives can file a complaint or get substitution in place of the existing one.
5. In regard to goods hazardous to life or safety of the public, traders supplying goods will be liable if it can be proved that the supplier could have known with due care that the goods or services supplied were hazardous to the public. Besides, liability of suppliers of spurious products and services is made clear in the Amendment Act 2002.
6. An important amendment relates to the meaning of expression ‘manufacturing’. Manufacturing has now been defined to include merely assembling parts of goods made by others or putting one s own mark on any good manufactured by others.
7. Amendment Act 2002 makes the restrictive trade practices more stringent by including under it trade practice which tends to the manipulation of price or the conditions of delivery of goods or affect the flow of supplies of goods in the market in a manner that imposes undue costs or restrictions on the consumers. Restrictive trade practice also includes delay in the delivery of goods beyond the period agreed to by the traders or delay in providing services when such delay is likely to lead to rise in their prices.
8. According to an important provision in the 2002 Amendment Act, in trading or commerce of goods or services misleading or deceptive conduct of traders or suppliers would be treated as unfair trade practice. Those who make misleading or false representation luring consumers to buy goods or services would fall within unfair trade practice and would be held liable. Under the Consumer Protection Amendment Act 2002 the consumers who are lured to enter into such a contract would be entitled to get the damages.

Similarly, Amendment Act 2002 also covers the unfair treatment to the consumers who have suffered by being lured in the schemes offering gifts, concessional prices or some items free of charge depending on the official results of a particular scheme. This amendment provides remedy to the consumers who might be unfairly treated in such schemes by requiring the promoter to disclose proper information regarding the results of a scheme by appropriate timely publication of results in newspapers, etc.

Proposed Amendments in Consumer Act, 2010:

The Cabinet has given clearance to the proposed amendments to the Consumer Protection Act which is likely to be passed by the parliament in winter session of 2010. These amendments seek to make the consumer protection law more responsive to consumer complaints through quicker disposal of cases. The proposed amendments have widened the scope of the law, specified time limit for quicker disposal of cases and rationalized qualifications for appointment of members of consumer forums at the state and national level.

Evaluation of Consumer Protection Act:

Consumer Protection Act with amendments made in it in 2002 is a quite comprehensive piece of legislation that seeks to protect the consumers against unfair and exploitative practices of manufacturers. Consumer awareness in India is now fast growing. As a result, the number of complaints by the end of 2002 before District Forums had been about 14 lakhs, that before State Commissions 2 lakhs and that before National Commission about 21,000 all of which amount to the total of about 162,100.

It is important to note that Consumer Protection Act is additional law protecting consumers but not a derogation of any other laws which protect consumers. Services or goods provided by those dealing in information technology, electronic commerce (E-Commerce) are also liable under the Consumer Protection Act apart from the Act governing Telecommunication Regulatory Authority of India (TRAI) which regulates not only transactions between competing providers of telecommunication services but also regulate them to protect consumer interests.

Similarly, the Consumer Protection Act is in addition to MRTP Act which also tries to protect the interests of consumers by controlling monopolistic and restrictive trade practices. According to G.L. Sanghi, “The tribunals created under the Consumer Protection Act are in substantial matters not different from the ordinary civil courts. They are quasi-judicial tribunals created to render inexpensive and speedy justice. They provide additional remedies through the newly created forums”.

A Comprehensive Act:

The Consumer Protection Act is quite a comprehensive legislation. Under the Consumer Protection Act not only manufacturers and suppliers of goods but also of such services as insurance providers, medical treatment, lending and recovery of bank loans also come within the purview of the Act. A few such important cases are worth explaining.

Consumer Protection Act and Medical Practitioners:

The applicability of Consumer Protection Act to medical practitioners is a highly complicated issue and the case relating to it went even up to the Supreme Court of India. In defence of medical practitioners it was argued that their services are excluded category being services under “Control of Personal Services”. Supreme Court rejected these arguments and brought medical practitioners, hospitals and nursing homes where services are rendered for valuable consideration under the purview of Consumer Protection Act.

Doctors and hospitals committing medical negligence have therefore become liable and damages for medical negligence can be claimed from them. Though this has created fear and concern among medical practitioners and private hospitals but this will help in preventing medical negligence on the part of doctors and hospitals.

It has been widely reported in the media about medical negligence, for example, of operating a wrong eye, removing a kidney of a person without his consent, leaving screw, scissors and a towel in the abdomen of a patient, giving a wrong injection leading to the death of a patient. For all these acts of negligence compensation can be claimed from doctors and hospitals and also penalties can be imposed on them.

In an important case Supreme Court held that a medical practitioner may be liable if there was a negligence in respect of diagnosis and/or treatment given to a patient provided it can be demonstrated that the negligent act was not based on reasonable and responsible information as to the kind and quality of treatment.

Insurance Companies and Consumer Protection Act:

One of the important categories where Consumer Protection Act has been usefully applied is the claims against insurance companies. Many insurance companies (including public sector insurance companies) often deny medi-claims to the insurers on one pretext or the other.

Generally insurance companies deny claims for damages to the insurers that they did not disclose the pre-existing disease they were suffering from at the time of getting insured. In many cases consumer commissions have rejected the arguments of insurance companies and have awarded damages to the insurers and require insurance companies to fulfill their contractual obligations.

In a recent case of accident claim the United India Insurance Company denied to pay the damages on a car which met with an accident on the ground that it was being plied without the ‘fitness certificate’ as required under the Motor Vehicles Act. In this case in Nov. 2007, National Consumer

Commission held that the insurance companies, if the terms of the policy were not breached, cannot refuse to entertain claims on the pretext that the insured violated some other laws or conditions “as the insurance is a matter of contract between the two parties.”

Recovery of Bank Loans and Consumer Protection Act:

The wide applicability of Consumer Protection Act can be understood from the recent judgment of the State Consumer Commission of Delhi which slapped a fine of Rs. 55 lakhs on ICICI Bank for trying to recover a vehicle loan by hiring musclemen. The goons of recovery agent of the bank forcibly dragged out a youth from the car, beat him up with iron rods and left him bleeding and drove away with the vehicle. Justice J.D. Kapoor, president of the commission, said, “We hold ICICI Bank guilty of the grossest kind of deficiency in service and unfair trade practice for breach of terms of contract of hire-purchase/loan agreement by seizing the vehicle illegally.”

Conclusion:

In view of the above usefulness and wide applicability of Consumer Protection Act, Mr. G.L. Sanghi is right in concluding, “In each and every area involving sale of goods and services for valuable consideration a consumer stands protected. The polarity of this law is unlimited. Its machinery is effective and awesome to the delinquent trader with solace to the consumer. As experience grows further improvements will un-doubtetedly make this remedy more and more useful”.

Business Law governs the world of commerce. We call all these rules as Merchantile Law or Commercial law. The Business Law governs all dealings of businesses and the conduct of people associated with such businesses. In India, some of the Business Laws followed are from the pre-independence era, however, newer Business Laws are always being passed.

The business law is a branch of law which deals with the set of governance rules related to certain business transactions and relations between business representatives, dealers, customers, and suppliers.

Commercial suit it refers to the suit between bankers, merchants, and traders relating to mercantile transactions.

Various Definitions of Law

There are broadly five definitions of Business Law. Let’s walk through each of them briefly.

1. Natural School

In the natural school of thought, a court of justice decides all the laws. There are two main parts of this definition. One, to actually understand a certain law, an individual must be aware of its purpose. Two, to comprehend the true nature of law, one must consult the courts and not the legislature.

2. Positivistic Definition of Law

John Austin’s law definition states “Law is the aggregate set of rules set by a man as politically superior, or sovereign to men, as political subjects.” Thus, this definition defines law as a set of rules to be followed by everyone, regardless of their stature.

Hans Kelsen created the ‘pure theory of law’. Kelsen states that law is a ‘normative science’. In Kelson’s law definition, the law does not seek to describe what must occur, but rather only defines certain rules to abide by.

3. Historical Law Definition

Friedrich Karl von Savigny gave the historical law definition. His law definition states the following theories.

• Law is a matter of unconscious and organic growth.
• The nature of law is not universal. Just like language, it varies with people and age.
• Custom not only precedes legislation but it is superior to it. Law should always conform to the popular consciousness because of customs.
• Law has its source in the common consciousness (Volkgeist) of the people.
• The legislation is the last stage of lawmaking, and, therefore, the lawyer or the jurist is more important than the legislator.

4. Sociological Definition of Law

Leon Duguit states that law as “essentially and exclusively as a social fact.”

Rudolph Von Ihering’s law definition: “The form of the guarantee of conditions of life of society, assured by State’s power of constraint.”

This definition has three important parts. One, the law is a means of social control. Two, the law is to serve the purposes of the society. Three, law due to its nature, is coercive.

Roscoe Pound studied the term law and thus came up with his own law definition. He considered the law to be predominantly a tool of social engineering.

Where conflicting pulls of political philosophy, economic interests, and ethical values constantly struggled for recognition.

Against a background of history, tradition and legal technique. Social wants are satisfied by law acting which is acting as a social institution.

5. Realist Definition of Law

The realist law definition describes the law in terms of judicial processes. Oliver Wendell Holmes stated: “Law is a statement of the circumstances in which public force will be brought to bear upon through courts.”

According to Benjamin Nathan Cardozo who stated “A principle or rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged, is a principle or rule of law.”

As the above law definitions state, human behavior in the society is controlled with the help of law. It aids in the cooperation between members of a society. Law also helps to avoid any potential conflict of interest and also helps to resolve them.

Nature of Business Law

The nature of business law depends on the location of the business and its area of activities. Apart from these two conditions governance authority also affects the nature of the law. The main areas included under the business law are:

• Starting a business

The business laws are applicable to all types of business organizations. There are certain rules for each business entities including corporations, limited liability, partnership and more. For instance, let’s assume you want to start a business but what type of business it would be? And what papers you need to file for it? After this what are the certain legal rules you need to follow or how to pay the taxes? To answer all this question you need to hire a business lawyer. The hire lawyer can help you with intellectual property law which includes patents, copyrights, trademarks and other intangible assets. Along with intangible assets the lawyer will look after the business like consumer protection law, licensing and permits.

• Taking over/ buying a business

Now, not everyone starts with buying a business some goes for taking over or buying an existing one. When it comes to buying or taking over an existing business the company need a lawyer to deal with contracts, employment laws, real estate laws and consequences after the breach of contract.

• Managing a business

Running a business is not an easy task as there are several aspects that are involved in managing a business. As you already read mention a business involves lots of contracts, joint-ventures and employment laws. The government of the country create and enforce the federal laws on the business. To deal with all of these aspects the company needs a business lawyer. Although it may sound appealing to become a business lawyer it is not as easy as it sounds.

Business law may be defined as that branch of law which consists of laws relating to trade, industry and commerce. It is one of the important branches of Civil Law. It is also called as “Commercial Law”.

Scope of Business Law

The scope of Business law is very wide and varied. It includes law relating to contracts, partnership, sale of goods, negotiable instruments, companies, insolvency, insurance, carriage of goods, etc.

Business law is concerned with the study of rights and obligations arising out of Business transactions between Business persons. Business persons are persons who carry on commercial transactions. They may be individuals, partnership concerns or joint stock companies.

Knowledge of Business law is essential to merchants. It helps the merchants to avoid conflicts with the persons with whom he comes into business contacts.

Main sources of Business Law

Indian Business law is based largely upon the English Business law. Prior to the enactment of the various Acts constituting Business law, the personal laws of the parties to suit regulated Business transactions. The rights of Hindus were governed by the Hindu Law and that of Muslims by the Mohammedan Law.

In case of persons other than Hindus and Muslims, the Courts applied the principles of English Law. Further, where laws and usage of Hindus or Muslims were silent on any point, the principles of English Law were applied.

The first efforts to pass an Act constituting Business law in India were made in 1872 by the passing of the Indian Contract Act. From that time a large number of statutes have been enacted concerning matters coming within the purview of Business law. For example, the Sale of Goods Act, 1930, the Partnership Act, 1932, the Companies Act, 1955, etc.

The main sources of Indian Business Law are:

1. English Business Law.
2. Statute Law.
3. Judicial Decisions.
4. Customs and Usage.

1. English Business Law

The English law is the most important source of Indian Business law. Many rules of English law have been incorporated into Indian law through statutes and judicial decisions. The sources of English law are:

• Common Law

This law is known as judge made law. It is based upon customs and practices handed down from generation to generation. It is the oldest unwritten law. The English Courts developed these over centuries.

• Equity

Equity is also unwritten law. It is based upon concepts of justice developed by the judges whose decisions become precedents. It grew as a system of law supplementary to the common law and covered the deficiencies of the common law. Its rules were applied in cases where the rules of common law were considered harsh and oppressive.

The Judicature Acts of 1873 and 1875 abolished the distinction between Common Law and Equity so that they are now applied to all cases.

• Statute Law

Statute law is one, which is laid down in the Acts of Parliament. Hence, it acts as the most superior and powerful source of law. It overrides any rule of common law or Equity.

• Case Law

This is also an important source of the English Business law. It is built upon the decisions of the Judges. It is based on the principle that what has been decided in earlier case is binding in similar future case also unless that there is a change in the circumstances of the case.

• A Lex Mercatoria or Law Merchant

It is also one of the important sources of English Business law. A lex mercatoria or law merchant consists of legal principles based on customs and usage. They developed first as a separate system of law and subsequently became part of the common law.

2. Statute Law

A Bill passed by the parliament and signed by the President becomes a “Statute” or an Act. Most of the Indian laws are embodied in the various Acts passed by the Central as well as State legislators. The Indian Contract Act, 1872, the Sale of Goods Act, 1930, the Companies Act, 1956 are some of the examples of the statute law.

3. Judicial Decisions

Judicial decisions are also called as case laws. They referred to as precedents and are binding on all Courts having jurisdiction lower to that of the Court, which gave the judgement. The Courts in deciding cases involving similar points of law also follow them.

4. Customs and Usage

Customs and usage plays an important role in regulating business transactions. A well-recognized custom or usage can even override the statute law. Most of the business customs and usage have been already codified and given legal sanctions in India. Some of them have been ratified by the decisions of the competent Courts of law.

Principles for Allocation of Expenses:

The following principles should be noted for the purpose:

(a) Expenses relating to direct benefit of a particular department are charged to the department concerned, e.g., cost of special packing materials is charged to the specific department for which it is used.

(b) Expenses relating to the benefit of more than one department but capable of precise allocation are charged to the departments concerned accordingly, i.e., on some equitable basis, e.g., Rent can be charged to the different departments according to floor area occupied.

(c) Expenses relating to the benefit of more than one department not capable of precise allocation are to be allocated on some arbitrary basis, e.g., Managers salary is to be apportioned on the basis of turnover or cost of sales.

Purpose of Allocation of Expenses:

The following list may be followed for the purpose of allocation of expenses among the different departments:

Expenses:

1. Selling Expenses, Selling Commissions, Advertisement, Bad Debts, Carriage Outwards, Packing and Delivery Expenses, Godown Rent, Storage, Discount allowed, Travelling Salesmen’s Salary and Commission, After Sale Service, Sales Managers Salary, Provision for Discount Allowed, Freight Outwards etc.
2. Discount Received, Carriage Inwards Provision for Discount on Creditors.
3. Rent, Rates, Taxes, Repairs to Building, Insurance, Maintenance or Depreciation of Building, Air Conditioning Expenses, etc.
4. Lighting, Electricity Charges. Heating etc. Insurance, Depreciation on Plant and Machinery, Fire.
5. Insurance, Preliminary repairs to assets, Repairs and renewals etc.
6. Group Insurance Premium, Supervisors’ Salary, Workmen Compensation Insurance, Contribution to ESI etc.
7. Canteen Expenses, Medical benefits, Labour and Welfare expenses or expenses relating to labour.
8. Works Manager’s Salary.
9. Power.
10. Insurance of Stock.

Basis of Allocation:

1. Turnover or Sales of each department.
2. Purchase of each department.
3. Floor area occupied or Value of floor space
4. Light Points/Floor Area Occupied Assets value of each department
5. Direct wages of each department
6. Numbers of workers
7. Time spent in each department
8. Horse Power or Horse Power x Hours worked
9. Average stock of each department

Note:

There are certain expenses which cannot be apportioned or allocated among the different departments on a suitable basis, the same should be transferred to General Profit and Loss Account (e.g., Interest on Capital, Debenture Interest, Loss on sale of assets, Interest on loan, General Manager’s Salary etc.).

Types of Costs

There are several types of costs that an organization must define before allocating costs to their specific cost objects. These costs include:

1. Direct costs

Direct costs are costs that can be attributed to a specific product or service, and they do not need to be allocated to the specific cost object. It is because the organization knows what expenses go to the specific departments that generate profits and the costs incurred in producing specific products or services. For example, the salaries paid to factory workers assigned to a specific division is known and does not need to be allocated again to that division.

2. Indirect costs

Indirect costs are costs that are not directly related to a specific cost object like a function, product, or department. They are costs that are needed for the sake of the company’s operations and health. Some common examples of indirect costs include security costs, administration costs, etc. The costs are first identified, pooled, and then allocated to specific cost objects within the organization.

Indirect costs can be divided into fixed and variable costs. Fixed costs are costs that are fixed for a specific product or department. An example of a fixed cost is the remuneration of a project supervisor assigned to a specific division. The other category of indirect cost is variable costs, which vary with the level of output. Indirect costs increase or decrease with changes in the level of output.

3. Overhead costs

Overhead costs are indirect costs that are not part of manufacturing costs. They are not related to the labor or material costs that are incurred in the production of goods or services. They support the production or selling processes of the goods or services. Overhead costs are charged to the expense account, and they must be continually paid regardless of whether the company is selling any good or not.

When one of the Venturers keeps Accounts

If one of the co-venturers is appointed to manage the joint venture, he is awarded an extra commission or remuneration out of the profit for his services.

Journal Entries

When Separate Books of Accounts are kept for the Joint Venture

Under this method, all co-venturers contribute their share of investment and deposit their shares in a Joint Bank account newly opened for the specific purpose of the Joint Venture. They may use this bank account to make any kind of payments and to deposit sale proceeds or any other kind of receipts.

In addition to Bank account, a Joint venture account is also opened in the books to keep records of all transactions routed through this account.

This category of accounts is a personal account of the each co-venturer. Thus following three accounts are opened:

• Joint Bank Account
• Joint Venture Account
• Personal account of co-venturers

When Separate Books of Accounts are not kept for the Joint Venture

It is of two types:

• When all venturers keep separate accounts
• Memorandum joint venture method

When all Venturers keep Separate Accounts:

• Separate Joint venture account and personal accounts of other co-venturers are opened under this method of accounting.
• Joint venture account is debited and bank account or creditor account is credited on the account of goods purchased or expensed.
• Joint venture account is credited and a bank account or debtor account is debited in case of either cash sale or credit sale.
• Each co-venturer debits joint venture account and credits personal accounts of other co-venturer on the account of either goods purchased or expensed by other co-venturers.
• Joint venture account is credited and personal account of others co-venturer account is debited in case of sale made by other co-venturers.
• Joint venture account is debited and commission account is credited if, commission is receivable, but if commission is receivable by other co-venturer, then the concerned co-venturer account will be credited instead of the commission account.
• If unsold stock is taken, then goods account will be debited by crediting Joint venture account. On the other hand, if unsold stock is taken by any other co-venturer, then personal account of the co-venturer will be debited.
• Balance in the joint venture accounts represents profit or loss and later that amount of profit or loss will be transferred to the personal accounts of co-venturers.

Note: Above transactions are possible only when all the co-venturers exchange information’s on regular basis.

The two most distinctive features of a commercial bank are borrowing and lending, i.e. acceptance of deposits and lending of money to projects to earn Interest (profit). In short, banks borrow to lend. The rate of interest offered by the banks to depositors is called the borrowing rate while the rate at which banks lend out is called lending rate.

The difference between the rates is called ‘spread’ which is appropriated by the banks. Mind, all financial institutions are not commercial banks because only those which perform dual functions of (i) accepting deposits and (ii) giving loans are termed as commercial banks. For example, post offices are not bank because they do not give loans. Functions of commercial banks are classified in to two main categories: (A) Primary functions and (B) Secondary functions.

(A) Primary Functions:

1. It accepts deposits:

A commercial bank accepts deposits in the form of current, savings and fixed deposits. It collects the surplus balances of the Individuals, firms and finances the temporary needs of commercial transactions. The first task is, therefore, the collection of the savings of the public. The bank does this by accepting deposits from its customers. Deposits are the lifeline of banks.

Deposits are of three types as under:

(i) Current account deposits:

Such deposits are payable on demand and are, therefore, called demand deposits. These can be withdrawn by the depositors any number of times depending upon the balance in the account. The bank does not pay any Interest on these deposits but provides cheque facilities. These accounts are generally maintained by businessmen and Industrialists who receive and make business payments of large amounts through cheques.

(ii) Fixed deposits (Time deposits):

Fixed deposits have a fixed period of maturity and are referred to as time deposits. These are deposits for a fixed term, i.e., period of time ranging from a few days to a few years. These are neither payable on demand nor they enjoy cheque facilities.

They can be withdrawn only after the maturity of the specified fixed period. They carry higher rate of interest. They are not treated as a part of money supply Recurring deposit in which a regular deposit of an agreed sum is made is also a variant of fixed deposits.

(iii) Savings account deposits:

These are deposits whose main objective is to save. Savings account is most suitable for individual households. They combine the features of both current account and fixed deposits. They are payable on demand and also withdraw able by cheque. But bank gives this facility with some restrictions, e.g., a bank may allow four or five cheques in a month. Interest paid on savings account deposits in lesser than that of fixed deposit.

2. It gives loans and advances:

The second major function of a commercial bank is to give loans and advances particularly to businessmen and entrepreneurs and thereby earn interest. This is, in fact, the main source of income of the bank. A bank keeps a certain portion of the deposits with itself as reserve and gives (lends) the balance to the borrowers as loans and advances in the form of cash credit, demand loans, short-run loans, overdraft as explained under.

(i) Cash Credit:

An eligible borrower is first sanctioned a credit limit and within that limit he is allowed to withdraw a certain amount on a given security. The withdrawing power depends upon the borrower’s current assets, the stock statement of which is submitted by him to the bank as the basis of security. Interest is charged by the bank on the drawn or utilised portion of credit (loan).

(ii) Demand Loans:

A loan which can be recalled on demand is called demand loan. There is no stated maturity. The entire loan amount is paid in lump sum by crediting it to the loan account of the borrower. Those like security brokers whose credit needs fluctuate generally, take such loans on personal security and financial assets.

(iii) Short-term Loans:

Short-term loans are given against some security as personal loans to finance working capital or as priority sector advances. The entire amount is repaid either in one instalment or in a number of instalments over the period of loan.

Investment:

Commercial banks invest their surplus fund in 3 types of securities:

(i) Government securities, (ii) Other approved securities and (iii) Other securities. Banks earn interest on these securities.

(B) Secondary Functions:

Apart from the above-mentioned two primary (major) functions, commercial banks perform the following secondary functions also.

3. Discounting bills of exchange or bundles:

A bill of exchange represents a promise to pay a fixed amount of money at a specific point of time in future. It can also be encashed earlier through discounting process of a commercial bank. Alternatively, a bill of exchange is a document acknowledging an amount of money owed in consideration of goods received. It is a paper asset signed by the debtor and the creditor for a fixed amount payable on a fixed date. It works like this.

Suppose, A buys goods from B, he may not pay B immediately but instead give B a bill of exchange stating the amount of money owed and the time when A will settle the debt. Suppose, B wants the money immediately, he will present the bill of exchange (Hundi) to the bank for discounting. The bank will deduct the commission and pay to B the present value of the bill. When the bill matures after specified period, the bank will get payment from A.

4. Overdraft facility:

An overdraft is an advance given by allowing a customer keeping current account to overdraw his current account up to an agreed limit. It is a facility to a depositor for overdrawing the amount than the balance amount in his account.

In other words, depositors of current account make arrangement with the banks that in case a cheque has been drawn by them which are not covered by the deposit, then the bank should grant overdraft and honour the cheque. The security for overdraft is generally financial assets like shares, debentures, life insurance policies of the account holder, etc.

5. Agency functions of the bank:

The bank acts as an agent of its customers and gets commission for performing agency functions as under:

(i) Transfer of funds:

It provides facility for cheap and easy remittance of funds from place-to-place through demand drafts, mail transfers, telegraphic transfers, etc.

(ii) Collection of funds:

It collects funds through cheques, bills, bundles and demand drafts on behalf of its customers.

(iii) Payments of various items:

It makes payment of taxes. Insurance premium, bills, etc. as per the directions of its customers.

(iv) Purchase and sale of shares and securities:

It buys sells and keeps in safe custody securities and shares on behalf of its customers.

(v) Collection of dividends, interest on shares and debentures is made on behalf of its customers.

(iv) Acts as Trustee and Executor of property of its customers on advice of its customers.

(vii) Letters of References:

It gives information about economic position of its customers to traders and provides similar information about other traders to its customers.

6. Performing general utility services:

The banks provide many general utility services, some of which are as under:

(i) Traveller’s cheques .The banks issue traveler’s cheques and gift cheques.

(ii) Locker facility. The customers can keep their ornaments and important documents in lockers for safe custody.

(iii) Underwriting securities issued by government, public or private bodies.

(iv) Purchase and sale of foreign exchange (currency).