Meaning of intellectual Property

Intellectual Property can be defined as inventions of the mind, innovations, literary and artistic
work, symbols, names and images used in commerce. The objective of intellectual property
protection is to encourage the creativity of the human mind for the benefit of all and to ensure
that the benefits arising from exploiting a creation benefit the creator. This will encourage
creative activity and give investors a reasonable return on their investment in research and
development.
IP empowers individuals, enterprises, or other entities to exclude others from the use of their
creations. Intellectual Property empowers individuals, enterprises, or other entities to exclude
others from the use of their creations without their consent.

Meaning of intellectual property rights

The intellectual property right is a kind of legal right that protects a person’s artistic works,
literary works, inventions or discoveries or a symbol or design for a specific period of time.
Intellectual property owners are given certain rights by which they can enjoy their Property
without any disturbances and prevent others from using them, although these rights are also
called monopoly rights of exploitation, they are limited in geographical range, time and scope.
As a result, intellectual property rights can have a direct and substantial impact on industry and
business, as the owners of IPRs one can enforce such rights and can stop the manufacture, use,
or sale of a product to the public. IP protection encourages publication, distribution, and
disclosure of the creation to the public, rather than keeping it a secret and to encourage
commercial enterprises to select creative works for exploitation.

General Framework of IPR LAWS in India

INTELLECTUAL PROPERTY SYSTEM IN INDIA
In 1485 the first system of protection of intellectual property came in the form on Venetian
Ordinance historically. In England in 1623 it was followed by Statue of Monopolies, which
extended rights of patents for Technology Inventions. In 1760, patent laws were introduced in
The United States. Between 1880 and 1889 patent laws of most European countries were
developed. In the year 1856 in India Patent Act was introduced which remained in force for more
than 50 years which was later modified and revised and was called “The Indian Patents and
Designs Act, 1911”. A complete bill on patent rights was enacted after Independence in the year
1970 and was called “The Patents Act, 1970”.
Specific statues protected only specific type of intellectual output; till very recently only four
forms were protected. The protection was in the form of grant of designs, patents, trademarks
and copyrights. In India, copyrights were regulated under the Copyright Act, 1957; trademarks
under Trade and Merchandise Marks Act 1958; patents under Patents Act, 1970; and designs
under Designs Act, 1911.
The establishment of WTO and India also being signatory to the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS), many new legislations were passed for the
protection of intellectual property rights to meet the obligations internationally. These included
the following: Designs Act, 1911 was changed by the Designs Act, 2000; Trade Marks, called the
Trade Mark Act, 1999; the Copyright Act, 1957 was revised number of times, the latest is known
as Copyright (Amendment) Act, 2012; and the recent amendments made to the Patents Act,
1970 in 2005. Other than this, plant varieties and geographical indications were also enacted in
new legislations. These are called Geographical Indications of Goods (Registration and
Protection) Act, 1999, and Protection of Plant Varieties and Farmers’ Rights Act, 2001
respectively.
Intellectual property rights have developed to a stature from where it plays an important role in
developing economy globally, over the last fifteen years. In 1990s, laws and regulations were
strengthened I this area by many countries unilaterally. In the multilateral level, there was
enhanced protection and enforcement of IPRs to the level of solemn international commitment
because of successful conclusion of the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) in World Trade Organization. It is felt strongly that under the competitive
environment globally, stronger IPR protection rises the incentives for innovations and raises
returns to international transfer of technology.

DEVELOPMENT OF TRIPS IN INDIA

The Development of World Trade Organisation was as a result of International trade calls
and framework of trade calls for harmonization of several aspects of Indian Law relating to
Intellectual Property Rights. The TRIPS agreement set minimum standards for protection for IPR
rights and also set a time frame within which countries were required to make changes in their
laws to comply with the required degree of protection. In view of this, India has taken action to
modify and amend the various IP Acts in the last few years.

 Patents Act, 1970:

India after signing the TRIPS agreement and forming part of the Agreement establishing the
World Trade Organization (WTO) for the purpose of reduction of distortions and impairments to
international trade and promotion of effective protection of intellectual property rights, became
signatory, the Patent act as amended time to time in the year 1995, 1999, 2002 and 2005 to
meet its obligations under the TRIPS agreement. Further, it has been amended to support the
various technological developments in India, to match with the development of the International
intellectual property laws, India has also made amendments in the Intellectual property rights.
The amendments were also aimed at making the Act a modern, harmonized and user-friendly
legislation for protection of national and public interests along with fulfilling India’s international
obligations under the TRIPS Agreement.
Subsequently the rules under the Patent Act have also been amended and these became
effective from May 2003. These rules have been further amended by Patents (Amendment) Rules
2005 w.e.f 01.01.2005. Thus, the Patent Amendment Act, 2005 is now fully in force and
operative.

 Trade Mark Act, 1999:

The law of trademarks is also now modernized under the Trademarks Act of 1999. A trademark is
a special symbol for distinguishing the goods offered for sale or put in the market by one dealer
from another. In India, the trademarks were protected for more than four decades as per the
provisions of the Trade and Merchandise Mark Act, 1958. India joined the World Trade
Organisation from its inception. One of the agreements in that related to the Intellectual
Property Rights (TRIPS). In December, 1998 India acceded to the Paris Convention.
Also, The Trade Mark bill which was introduced in 1994, is the result of vast modification made in
Trade and Merchandise Marks Act, 1958. The said modification can be called modernisation
made for easy trading and commercial practices, to increase trading overseas by globalisation
and bring investment from overseas and most importantly to make trademark management
system as simple as possible and more recognition of the same in judicial system.
The bill could not be passed but pointed out the areas where the huge changes were required,
thereafter the Trademarks Bill of 1999 was introduced with the fresh review of the required
development in various area, such as trade and commercial practices, globalisation etc., the
same was later passed in the Parliament and replaced with Trade and Merchandise Act, 1958
with assent of the President on the date of 30th December, 1999; the introduction of Trade
Marks Act, 1999 has been proved to be very fruitful to India for going global in trade and
commerce area.
The salient features of the Act mainly includes as follows:

1. Earlier only goods and services covered was by the way of registration, but in this Act
the infringement has broaden the meaning as it also includes unauthorised use of
similar mark or confusingly similar mark where the goods and services which are very
similar and create confusion or chance of confusion stands.
2. Even though where the unauthorised use of trademark is made of any well known
trademark of India and the interest of the owner is any way infringed, the action of
infringement can be taken against the same.
3. Further, it gave more power to police by authorising them to seize infringing material
without any warrant issued.
 

 The Designs Act, 2000:

Science and technology started boosting up in the beginning of 20th century, and the urge to
provide more reliable judicial system came in place for better protection of this field and for the
protection of the industrial designs. The steps were required to be taken to promote more and
more development in design industry by providing protection under registered design. Though it
was very essential to protect the design only to the extent it was required and not any more than
that and to allow use of available design for free too. The current Act is in line with the TRIPS
agreement and therefore line with globalisation of trade and commerce.
The Industrial product basically includes two factors, i.e. artistic work and functioning part of the
product. Though in Design Act only artistic work is covered and not functioning part of the
product, though the artistic work should be unique and not usual. For example, table with for
legs and top would not be considered as design, but the table with unique top and unique style
of bottom can be registered.
Day by day industrial design becoming daily part of the life of the consumer by catching
consumers eyes through unique designs. For the same reason, it has become essential to provide
protection to such industrial designs.
The salient features of the Design Act, 2000 can be drawn as follows:

1. definition of the terms “article”, “design”  has been given vide scope.
2. the scope is given to the term “prior publication”.
3. Introduction of provision for delegation of powers of the Controller to other officers
and stipulating statutory duties of examiners.
4. Provision of identification of non-registrable designs.
5. Provision for substitution of applicant before registration of a design.
6. Substitution of Indian classification by internationally followed system of classification.
7. Provision for inclusion of a register to be maintained on computer as a Register of
Designs.
8. Provision for restoration of lapsed designs.
9. Provisions for appeal against orders of the Controller before the High Court instead of
Central Government.
10. Revoking of period of secrecy of two years of a registered design.
11. Providing for compulsory registration of any document for transfer of right in the
registered design.
12. Introduction of additional grounds in cancellation proceedings and provision for
initiating the cancellation proceedings before the Controller in place of High Court.
13. Enhancement of quantum of penalty imposed for infringement of a registered design.
 14. Provision for grounds of cancellation to be taken as defence in the infringement
proceedings to be in any court not below the Court of District Judge.
15. Enhancing initial period of registration from 5 to 10 years, to be followed by a further
extension of five years.
16. Provision for allowance of priority to other convention countries and countries
belonging to the group of countries or inter-governmental organizations apart from
United Kingdom and other Commonwealth Countries.
17. Provision for avoidance of certain restrictive conditions for the control of
anticompetitive practices in contractual licenses.

 The Geographical Indications of Goods (Registration and Protection ) Act, 1999:

Geographical Indication is new in India and recently introduced result of the event where
turmeric, neem and basmati were patented by persons outside India. To avoid letting outside
misuse the Indian Geographical indications and indicating the goods are not basically indicated
from Indian locality.
After such instance it became necessary to have legislation for registration and providing
adequate protection to geographical indications. The bill introduced in the parliament and
passed and with the assent of the president the Geographical indication of Goods (Registration
and Protection) Act, 1999, came into force. The Act is administered by the Geographical
Indication Registry under the jurisdiction of the Controller General of Patents, Designs and Trade
Marks.
The salient features of this legislation are as under:

1. Provision of definition of several important terms like “geographical indication”, “goods”,

“producers”, “packages”, “registered proprietor”, “authorized user” etc.
2. Provision for the maintenance of a Register of Geographical Indications in two parts-Part A
and Part B and use of computers etc. for maintenance of such Register. While Part A will
contain all registered geographical indications, Part B will contain particulars of registered
authorized users.
3. Registration of geographical indications of goods in specified classes.
4. Prohibition of registration of certain geographical indications.
5. Provisions for framing of rules by Central Government for filing of application, its contents
and matters relating to the substantive examination of geographical indication applications.
6. Compulsory advertisement of all accepted geographical indication applications and for
inviting objections.
7. Registration of authorized users of registered geographical indications and providing
provisions for taking infringement action either by a registered proprietor or an authorized
user.
8. Provisions for higher level of protection for notified goods.
9. Prohibition of assignment etc. of a geographical indication as it is public property.
10. Prohibition of registration of geographical indication as a trademark.
11. Appeal against Registrar’s decision would be to the Intellectual Property Board established
under the Trade Mark legislation.
12. Provision relating to offences and penalties.
13. Provision detailing the effects of registration and the rights conferred by registration.
14. Provision for reciprocity powers of the registrar, maintenance of Index, protection of
homonymous geographical indications etc.
 
Copyright Act, 1957:
The Copyright Act, 1957 is one of the oldest existing intellectual property rights act. It has been
amended quite a few times to align with global trade and commerce. The act relates to person
creativity to, it protects the right of literary, artistic, musical works and sound recordings and
cinematograph films. For instance, it provides the copyright to author for his lifetime and 60
years after his death. It does not required to be qualitative work for being eligible for the
registered under this act, any unique work with very little in common with any other work can be
considered as eligible for this purpose.
Under the copyright, the author not only get right to the authorship but also get right under
which without his prior permission his work cannot be amended. If any amendment which may
done against his will can be brought into the court by the author, and he can get order to recover
any kind of damages and stop such act immediately.
A digital industry sees very big role of copyright, the computer programming was added in the
Act in 1984 as literary work to give recognition to computer programming and provide protection
to the same. Though, the separate definition was provided for the same later in 1994.
Introduction of the Computer programming created lot of confusion for the inbuilt programmes
without which a computer cannot run, which could not be transacted for free with the computer.
Later in 1999 with amendment, it was possible to allow selling computers and other similar
equipments with the inbuilt programmes for free. It also ensured the growth of newly introduced
internet.

 The Protection of Plant Varieties and Farmers’ Rights Act, 2001:

India has seen the growth in the industry of research of plant breeds, to give protection to
researcher and to encourage their interest in discovering better breed of plants idea of the Plant
Breeders’ Right came in existence. It promises to sustain agricultural progress, as having vast
portion of land of India being agricultural land it is very essential.
In wake of TRIPS under Article 27 of it, it was necessary to give protection of plant varieties by
patenting or by an effective sui generis system or by any combination thereof, to effect to the
same the government introduced the Protection of Plant Varieties and Farmers’ Right Act, 2001,
to encourage development of new breeds of plants. Though, the act requires to more investment
in research in both private and public sectors for better research of discovering or developing
new breeds. Further, it also promises to provide better growth in the seed industry and making
available to the Indian farmers better quality of seeds.

 The Semi Conductor Integrated Circuits Layout Design Act, 2000:

In past three decades, information technology and digital industry has seen biggest
development, the development also getting pace day by day, and can be called fastest growing
sector of the century. The industry has seen significant change in electronic equipments,
computers, telecommunication, etc. and also it has affected human life in the biggest manner by
providing advancement in many ways.  Microelectronics, which primarily refers to Integrated
Circuits (ICs) ranging from, Small Scale Integration (SSI) to Very Large Scale Integration (VLSI) on a
semiconductor chip – has rightly can be called the core, strategic technology world-over,
especially for Information Technology (IT) based society. Integrated circuits require expertise
knowledge and the effort to create one depends on complexity of the output. Hence, it is very
necessary to cover the same under IPR and it is also necessary to encourage continue Research
and Development in the field of microelectronics.
The copyright and patent was unable to provide enough meaning to the right due to restrictions
by definitions and purpose of those acts are not sufficient to cover this type of complex right. As
the concept of the originality is important, irrespective of the fact that the same is novelty or not
unlike patent law which requires both original and novel. Whereas the copyright law was too
general to accommodate the original ideas of scientific creation of Layout-Designs of Integrated
Circuits. Due to the same, the necessity to provide protection for Layout-Designs of Integrated
Circuits felt and to reward and encourage an adequate level of investment of human, financial
and technological resources.

 Trade Secrets:
A confidential business information that provides a business an edge to a competition can be
considered as Trade Secret. Such information can be both manufacturing and commercial secret.
A trade secret can be protected for an unlimited period of time but a substantial element of
secrecy must exist so that, except by the use of improper means, there would be difficulty in
acquiring the information. Considering the vast availability of traditional knowledge in the
country, the protection under this will be very crucial in reaping benefits from such type of
knowledge.

 Utility Models:
A utility model is an exclusive right granted for an invention, which allows the right holder to
prevent others from commercially using the protected invention, without his authorization for a
limited period of time. In its basic definition, which may vary from one country (where such
protection is available) to another, a utility model is similar to a patent. In fact, utility models are
sometimes referred to as “petty patents” or “innovation patents.”
Only a small but significant number of countries and regions provide the option of utility model
protection. At present, India does not have legislation on Utility models.
The main differences between utility models and patents are the following:
The requirements for acquiring a utility model are less stringent than for patents. While the
requirement of “novelty” is always to be met, that of “inventive step” or “non-obviousness” may
be much lower or absent altogether. In practice, protection for utility models is often sought for
innovations of a rather incremental character which may not meet the patentability criteria.
The term of protection for utility models is shorter than for patents and varies from country to
country (usually between 7 and 10 years without the possibility of extension or renewal).
In most countries where utility model protection is available, patent offices do not examine
applications as to substance prior to registration. This means that the registration process is
often significantly simpler and faster, taking on an average six months.
Utility models are much cheaper to obtain and to maintain. In some countries, utility model
protection can only be obtained for certain fields of technology, and only for products but not for
processes.
Utility models are considered suitable particularly for SMEs that make “minor” improvements to,
and adaptations of, existing products. Utility models are primarily used for mechanical
innovations.
The “Innovation patent,” launched in Australia some time back was introduced as a result of
extensive research into the needs of small and medium-sized enterprises, with the aim of
providing a “low-cost entry point into the intellectual property system.”
CONCLUSION
To conclude, the various modifications and amendments to earlier Intellectual Property Laws are
an indication of India’s move towards new IPR regime so as to prepare ourselves for the global
trade competition.

Contract relating to transfer of IPRs

I. Assignment of Intellectual Property Rights
An assignment of IPR is a transfer of ownership between the assignor and assignee where the latter is
free to exploit the rights for any purpose, and the former is paid for the same. Right to use is
transferred with the ownership and the assignee is vested with the exclusive right to exercise the
transferred rights. There is a complete transfer of ownership and cessation of interest. It must be in
writing and duly signed by both the parties in order to be enforceable. The agreement should specify
the purpose of the work for which the rights are being transferred and also the duration of the
assignment.
Intellectual property rights that can be transferred include Copyright, Design, Patent and Trademark.
The terms and conditions of assignment of these rights may vary because they are governed by
different legislations.

II.Licensing of Intellectual Property Rights

License is an agreement between at least 2 parties, where the licensor consents upon sharing the rights
to sell, use, make any items covered under the IP, with the licensee under certain terms and conditions.
The Royalty is the consideration given by the licensee in exchange for the contractual license. It is a
contract and therefore it must fulfil all the essential elements of a valid contract mentioned
under Sections 10 and 11 of the Indian Contract Act, 1872. There are three types of licensing:
1. Exclusive License — This license enables the licensee to exclude everybody, even the licensor from
using the IP rights, reserving them exclusively for himself.
2. Non-Exclusive License — It allows the licensee and licensor to utilize the IP rights together and it can
be licensed to any third party as well.
3. Sole License- Both the licensee and the licensor are free to use the IP rights but it cannot be
transferred to any third party.
A major difference between Assignment and License is that of the usage of the property. Licensed
property can be used only for the purpose mentioned in the agreement whereas, in case of
assignment, the assignee can utilize the rights and property however he wants to.

1. Transfer of Copyrights
All the matters relating to copyrights are governed by the Copyrights Act, 1957. The act recognizes the
transfer of copyrights through both the modes i.e. License and Assignment.
1.1 License
· According to Section 30 of the act enables the owner of the work to grant any interest in the right by
license in writing. The same section also provides that the prospective owner can also transfer rights of
future work, but the licence shall take effect only when the work comes into existence.
· It must be in writing and duly signed in order to be valid and it must specify the duration, nature of the
work, and its geographical extent.
· Non Exclusive license can be granted to one or more persons.
1.2 Assignment
· Section 18 of the Copyrights Act, 1957 allows the first owner and the original creator of the work to
assign the IP right to somebody else either wholly or partly and he can also transfer rights of future
work, but the assignment shall take effect only when the work comes into existence.
· Going by Section 19, it is mandatory for the agreement to be writing and duly signed in order to be
valid. The assignment must specify the duration and territorial limits of the assignment. If the period
and territorial limits of the assignment are not stated, the period shall be deemed to be five years from
the date of the assignment and the territorial extent should be presumed within India.
· Moral rights are independent of the author’s copyright and shall remain with the author even if he has
assigned his copyright. He has right to claim damages if his original work is distorted, mutilated or
modified and when his goodwill is being harmed.

2. Transfer of Design Rights

The Designs Act, 2000, does not specifically lay down provisions for the transfer of Design rights. But it
does outline a few things regarding the same under Section 30(3). It requires the assignment or license
agreement to be in writing with a specified duration and geographical extent. The transfer of a
registered design is registered with the statutory authority and recorded in the Register of Designs. It
serves as clear proof of the title.

3. Transfer of Patent Rights

A patent can be assigned or licensed to any third party under the Patents Act, 1970. It can be also
transferred through a mortgage.
3.1 Assignment
· Going by Section 68 of the Patents Act, 1970, it is mandatory for the assignment to be in writing and
duly signed by the parties. The agreement must contain all the terms and conditions regarding the
transfer along with the rights and obligations duly specified.
· The agreement should set out the invention being assigned, duration and geographical extent of the
rights clearly. If there are multiple owners of the patent concerned, all co-owners must jointly assign
the rights.
· If the assignment is made before the grant of the patent, then the pending application can continue
under the name of the assignee and he becomes the owner of the invention.
3.2 License
· The license agreement is to be carried out like any other IPs agreement. Section 2 (1)(f) defines
exclusive license where it excludes all other persons, including the patentee, except the one to whom
the license is granted to utilize the licensed right.
· Patent Act recognizes statutory, compulsory and voluntary license. Section 84 throws light on the
compulsory license. After the expiration of three years from the date of the grant of a patent, any
person interested may make an application to the Controller for grant of a compulsory licence on
patent on any of the following grounds:
a) that the reasonable requirements of the public with respect to the patented invention have not
been satisfied, or
b) that the patented invention is not available to the public at a reasonably affordable price, or
c) that the patented invention is not worked in the territory of India.
4. Transfer of Trademark
The Indian Trademarks Act, 1999, both registered and unregistered trademark can be transferred by
means of assignment and license.
4.1 Assignment
· Section 37and 38 governs the assignment of trademark rights. For a registered trademark owner, he
can assign the rights to anyone in writing for consideration. This will enable the assignee to use the
goods and services to which the registration applies. The transfer can be with or without the goodwill
of the goods and services.
· Section 36 empowers an unregistered trademark to be assigned or transmitted with or without the
goodwill of the business concerned.
· Assignment doesn’t confer the title of ownership in case of trademarks, it should be separately
applied for registration under Section 45.
4.2 License
· Trademarks licensing in India is governed by Section 49 of the Trademarks Act, 1999. The proprietor is
free to allow any third party to use its mark and can also register the licensee as the registered user of
the trademark. Technically speaking, it’s a license granted by the owner to the licensee. The act does
not explicitly mentions license but refers to the registered user as a licensee.
· The registered user has no right to further transfer this right by any means.
· To transfer the trademark rights, the owner and the registered user must jointly apply in writing to the
Registrar in the manner prescribed under Section 49 of the act.
In conclusion, the idea of transfer of IP is a strategy that creates benefits for both, who gives the rights and who
gets the rights. The procedure and necessary requirements will vary depending on the IP legislations.

Breach of IPR Contracts and remedies there for

Criminal remedies for IPR infringement in India

Under Part II of Schedule I of the CrPC, those offences which are punishable with imprisonment
for less than three years or with a fine only, are bailable and non-cognizable. However, offences
punishable with imprisonment for three years and upwards but not more than seven years, are
non-bailable and cognizable. Section 63 of the Copyright Act and Section 103 of the Trademark
Act, provides punishment for certain offences with imprisonment for not less than 6 months and
may extend to 3 years. Therefore, the contestable issue was whether the words ‘may extend to
three years’ under copyright act and trademark act can be equated with the words ‘three years
and upwards’ used in CrPC?

Recently, Hon’ble Bombay High court in Piyush Subashbhai Ranipa v. The State of Maharashtra,
anticipatory bail application No 336 of 2021 while rejecting the bail applicant has decided this
issue. The Hon’ble court opined that the offences under Section 63 of the Copyright Act and
under SE 103 of the Trademark Act are non-bailable. It has considered the relevant provisions
under copyright law and trademark law which clearly prescribes punishment up to three years.
That means the possibility of imposing a sentence of exactly three years is there. And therefore,
 such offences would be non-bailable. Accordingly, the Court held that the offences under Section
63 of the Copyright Act and 103 of the Trade Marks Act are non-bailable and cognizable.

Criminal procedures
Being cognizable category of offences, an offence under the Trade Marks Act, 1999 and the
Copyright Act, 1957 can be investigated and inquired by the police by mere registration of an FIR
without the adjudication by the Magistrate upon the issue. Further under Section 115(4) of the
Trade Marks Act, 1999, an opinion from the registrar of TradeMarks is compulsory for a criminal
action with regard to trademarks. But the same involves several procedures. Thus, instead of
filing an FIR before a police officer, a direct criminal complaint before the magistrate would be a
more effective option wherein the prerequisite of obtaining an opinion from the Registrar of
TradeMarks can be waived off. Further, under Section 93 and Section 94 of the Code of Criminal
Procedure, 1973 one can request for initiation of a search and seizure proceedings against
known and unknown persons. 

Criminal remedies v/s civil remedies in India 

Criminal remedies  Civil remedies
Criminal action bangs general deterrence even
A civil action is directed towards a particular
though it is initiated against certain known or
individual.
unknown infringers or violators.
Imprisonment/fine or both is provided.  An injunction order is provided.
Less severe action as compared to criminal
More severe action.
remedy.
It required some form of criminal intent such as Even unintentional acts of infringement may
willfulness, mens rea etc. attract civil action. 
Counterfeiting, piracy, cyber theft is a criminal infringement, violation, unauthorized usage of IPR
offence. generally comes under civil wrong. 
The social criticism and embarrassment attached
Police action not involved. 
to facing the police.
It may involve the loss of tangible assets of the IP
Loss of tangible assets is not there.
rights holder.
Can not be initiated if the identity of the infringer
Can be initiated against unknown persons.
is unknown.
Request for initiation of a search and seizure
proceedings against a known or unknown No such request of search and seizure proceedings
infringer can be prayed, under Section 93 and 94 can be prayed against an unknown infringer.
of the C.R.P.C.
Punitive damage can be awarded in a criminal The chance of getting punitive damage against the
action.  infringer is very less.
Criminal action can be initiated against
Only IP rights holders can initiate civil action
wrongdoers by state or nation in absence of a
against wrongdoers. 
complaint by the IP right holder. 
Non- registration of IP rights does not bar Non-registration of IP rights holders cannot initiate
 infringement suits, but they will have the remedy
initiation of criminal remedy.
of passing off action under common law.
 UNIT -2

Alternate Dispute Resolution

Indian judiciary is one of the oldest judicial system, a world-renowned fact but nowadays
it is also well-known fact that Indian judiciary is becoming inefficient to deal with pending
cases, Indian courts are clogged with long unsettled cases. The scenario is that even
after setting up more than a thousand fast track Courts that already settled millions of
cases the problem is far from being solved as pending cases are still piling up.
To deal with such a situation Alternative Dispute Resolution (ADR) can be helpful
mechanism, it resolves conflict in a peaceful manner where the outcome is accepted by
both the parties.

ONE OF THE MOST IMPORTANT FEATURE OF ADR IS IT RESOLVES DISPUTE IN

COST EFFECTIVE MANNER, LESS TIME CONSUMING AND PRODUCES DESIRED

RESULT.

Alternative Dispute Resolution

The concept of Alternative Dispute Resolution (ADR) mechanism is capable of providing
a substitute to the conventional methods of resolving disputes. ADR offers to resolve all
type of matters including civil, commercial, industrial and family etc., where people are
not being able to start any type of negotiation and reach the settlement. Generally, ADR
uses neutral third party who helps the parties to communicate, discuss the differences
and resolve the dispute. It is a method which enables individuals and group to maintain
co-operation, social order and provides opportunity to reduce hostility.
Evolution and Codification of ADR in India
 
The process of arbitration is not alien to India. It always had been practiced since time
immemorial. In India, people believed in resolving disputes within the four walls because
this was somewhere considered as an element to protect their dignity and personality in
the society. Hence, the mechanism gained significance in India since Ancient times
Ancient India
In ancient India when there was Kulas, people used to live in joint families with their clans
and when there was caste system prevalent in the society. The disputes among the kulas
were resolved by the head of the of the family, clan or Kula. Likewise, when there was
common trade, corporations or Shrenis among the people, they used to appoint person
to resolve the disputes within the Shrenis.
Pre- Independence: British rule
During the British rule in India, many legislations were introduced and a drastic change
came in the administration of India. In 1772, the courts were empowered to refer disputes
to arbitration either at the request of the parties or by its own discretion. Then after a
decade, in 1859 The Code of Civil Procedure was enacted, sections 312 to 327 of the act
mentioned arbitration but in 1882 the sections relating to arbitration was repealed.
In 1899 The Indian Arbitration Act, 1899 was enacted to give effect to alternate dispute
mechanism in India. The act was based on the English legislation.
Then in 1908, CPC was again amended and section 89 with second schedule gave wide
powers to the courts to refer the disputes to ADR mechanism. Then,  The Indian
Arbitration Act, 1899 and section 89 read with second schedule of Code of Civil
Procedure, 1908 were two effective legislation to deal with arbitration.
Thereafter, in 1937 Geneva Convention was signed and adopted by India and a parallel
legislation was introduced in the form of The Arbitration (Protocol and Convention) Act,
1937. In 1940, The Indian Arbitration Act, 1899 and section 89 with second schedule
of CPC was repealed and replaced by The Arbitration Act, 1940.
In local levels Panchayats were very effective in resolving the disputes in villages in India
Post- Independence Era
The Arbitration (Protocol and Convention) Act, 1937 for the enforcement of foreign
awards and The Arbitration Act, 1940 for referring disputes to ADR mechanism were
presently in force in India. Then in 1961, India became signatory to the New York
Convention and The Foreign Award (Recognition and Convention) Act, 1961 was
enacted.
In 1981, in M/S Guru Nanak Foundation vs. Rattan Singh & Sons, the Supreme Court
described the Arbitration Act, 1940 in off- quoted passage. It observed that “the way in
which the proceedings under the act are conducted and without an exception challenged
in courts, has made lawyers laugh and legal philosophers weep. Experience shows and
law reports bear ample testimony that the proceedings under the act have become highly
technical and accompanied by unending prolixity, at every stage providing a legal trap to
the unwary.”
In 1985, the UNCITRAL model law was adopted and signed by India on International
commercial arbitration.
In 1996, finally The Arbitration (Protocol and Convention) Act, 1937; The Arbitration Act,
1940 and The Foreign Award (Recognition and Convention) Act, 1961 was repealed and
consolidated in a single piece of legislation following the UNCITRAL model law, the act
was called the Arbitration and Conciliation Act, 1996. to make the act more effective and
efficient Section- 89 with Order- X (Rule- 1A to 1C) was re- introduced in CPC in 2002.
The act of 1966 was amended twice in 2015 and 2019. However, to deal with ADR
mechanism we have a consolidated, single, effective, efficient and a good piece of
legislation.
 evolution of ADR in India
 codification of ADR in India
 tracing the enactment of Arbitration and Conciliation Act, 1996

Arbitration, Conciliation and Mediation

Arbitration

Meaning
Arbitration is like a court procedure because the parties submit evidence similar to a trial
where the third party hear the entire situation and give his decision which is binding upon
the parties. In the case of Collins v Collin, the Court held that “An arbitration is a
reference to the decision of one or more persons, either with or without an umpire, of
some matter or matters in difference between the parties.” an arbitrator listens to the
evidence which is brought by both parties and makes a decision which is generally
binding upon both parties. Arbitration means getting an arbitral award on an ongoing
conflict, by the arbitrator. In the process of arbitration, the cause is heard and determined
between the parties in a dispute before the person selected by the parties or appointed
under statutory authority i.e., The Arbitration and Conciliation Act, 1996. The objective of
Arbitration is to settle the dispute which arose between the parties by one or more
arbitrators appointed by them by going through the documents and evidences. According
to Kurt Brenn “The objective of arbitration is not compromise but adjudication through the
parties are at liberty to comprise.” A wise arbitrator would certainly promote such
agreement, but as a rule there is no zest, if there is compromise in arbitral awards. While
taking a decision in arbitral matter, the arbitrator must consider the fact that the decision
imparted by him must be in the interest of principle of natural justice.
Arbitration can be done by voluntary or compulsory method. In Voluntary arbitration, if a
dispute arose between the two Parties and they are unable to resolve their differences by
themselves, thereby the parties agreeing to present their Dispute to the fair authority and
the decision will be binding upon both parties. Whereas Compulsory arbitration, is the
method where the parties are required to accept arbitration without any willingness on
their part. When one party in any industrial dispute feels aggrieved by the act of the other
party, it may approach the appropriate government to refer the dispute to any
organization of adjudication for the settlement. The arbitrator or arbitral tribunal consists
of a neutral person or persons responsible for resolving the dispute that the parties have
submitted before them.

Conciliation
Conciliation means settling disputes without litigation. It is an informal process in which
conciliator i.e. third party tries to bring the disputants to agreement. He overcomes the
disputable issues by lowering the tension, improvement in communication, interpreting
issues, providing technical assistance, exploring potential solutions and bringing the
negotiated settlement before the parties. Conciliator adopts his own method to resolve
the dispute and the steps taken by him are not strict and legal. There is no need of
agreement like arbitration agreement. The acceptance of settlement is needed by both of
the parties.
Part III of the Arbitration and Conciliation Act, 1996 deals with conciliation. it is a
voluntary proceeding where parties in dispute agree to resolve their dispute through
conciliation. It is a flexible process which allows the parties to decide the time and place
for conciliation, structure, content and terms of negotiations. In Conciliation, the
conciliators are trained and qualified neutral person who help the conflicting parties to
make them understand the issues in dispute and their interest to reach mutually accepted
agreements. The conciliation process includes the discussion between the parties which
is made with the participation of the conciliator. It covers many disputes like industrial
disputes, marriage disputes, family disputes etc. This allows the parties to control the
output of their dispute. The result is also likely to be satisfactory.

Conciliator
Conciliator is the third party who is involved in settling the dispute of the parties.
Generally, there is one conciliator for the settlement but there can be more than one
conciliator, if the parties have requested for the same. If there is more than one
conciliator then they will act jointly in the matter. Section 64 deals with the appointment of
conciliator which states that if there is more than one conciliator then the third conciliator
will act as the Presiding Conciliator.

Kinds of Conciliation
1. Voluntary Conciliation- In this method parties can voluntarily participate in the
process of conciliation for resolving their dispute.
 2. Compulsory Conciliation- If parties do not want to take the opportunity of
voluntary conciliation then they can go for compulsory conciliation. In this
method, if the parties do not want to meet the other party to resolve the dispute
then the process is said to be compulsory. This method is commonly used in
labour cases.

Mediation

Meaning
Mediation is one of the alternative dispute resolutions which are voluntary and informal
process for resolution of disputes. Mediation is a process which is under the control of
the parties. The mediator acts as a middle person who helps to come on a negotiated
common point of their dispute. They are trained professionals or sometimes attorneys
who assist the parties in dispute to meet at a common place where they can discuss their
issues and can try to negotiate to reach at a common output. A mediator uses special
kind of conversation and communication to resolve the parties dispute.
The parties can appoint the mediators themselves with mutual consent or the court may
appoint the arbitrators in pending litigation. In Mediation, the parties are the decision
makers. Mediators don’t decide what is right or wrong or what is fair or unfair. Mediator
can’t impose his opinion upon the parties but he can suggest and help the parties to
reach a mutual accepted agreement. Mediators may hold joint meetings or can meet with
the disputed parties together or separately and can suggest some possible solutions,
provide options to compromise, or provide advice and guidance but they cannot impose
their opinion or try to solve the dispute forcefully. In mediation, both parties are
responsible for reaching the outcome. The role of the parties in mediation is not to
convince the mediator but to come up with a common solution which is acceptable by
both the parties.
Mediation is an informal method of settling disputes, while it consists of basic rules or
procedures. The decision of the mediation is non-binding upon the parties. If the disputed
parties have agreed for the process of mediation then it is not binding upon them to
agree upon the proposed opinion of the Mediator. The mediator can suggest, give
opinions and can tell what to do or what not but he can’t force the parties to attend the
mediation if they are not interested to continue.
Mediation can be divided into two categories which is commonly followed in India:
1. Court referred mediation
The court may refer the pending case to a mediator for mediation if they think there is
possibility for the settlement of the case. The act of referring cases is given in Section 89
of the civil procedure code, 1908. These kinds of mediation are used in matters like
divorce cases or cases which deals under Negotiable Instrument Act, 1881.
2. Private mediation
In this kind of mediation, the professional and trained person works as Mediator. The
general public, government authorities, personnel from corporate sector or anyone from
court can approach them for settling their dispute through mediation.
Salient features of Arbitration and Conciliation Act

1. Replacement of three old statutes: The Act is a consolidation of  three laws of arbitration
previously in force – viz, the Arbitration Act, 1940, the Arbitration (Protocol and Convention) Act,
1937, and the Foreign Awards (Recognition and Enforcement) Act, 1961 into one enactment.
Though the three Acts have been consolidated the provisions regarding each of the acts have been
kept distinct within  the 1996 Act.
2. Necessity of Arbitration Agreement: The Act emphasizes the importance of the Arbitration
agreement without which arbitration proceedings cannot be instituted. The arbitration agreement is a
clause in a contract or an agreement between parties stating that any dispute will be referred to
arbitration proceedings. The Act mentions that the arbitration agreement or arbitration clause must
contain the following information - the subject matter of dispute, the timing of dispute
(past/present/future), number of arbitrators, qualifications of arbitrators, jurisdiction, and composition
of the tribunal.
3. Application to Domestic and International Arbitration: The Act provides the procedure not only
for domestic arbitration but also includes International Commercial Arbitration. The 1996 Act is a law
that relates to the enforcement of foreign Arbitration awards and ensures greater autonomy in the
process of arbitration and puts a limit on the intervention of the judiciary. 

4. Procedural Advantage: Arbitral Tribunal has full powers to decide the procedure to
be followed unless parties agree on the procedure to be followed. The Tribunal also has
powers to determine the admissibility, relevance, materiality, and weight of any
evidence. The place of arbitration will be decided by mutual agreement. However, if the
parties do not agree to the place, the same will be decided by a tribunal. Similarly,
language to be used in arbitral proceedings can be mutually agreed upon. Otherwise,
Arbitral Tribunal can decide. The Act allows parties to choose the substantive law to be
applied by the arbitration tribunal and this must also be mentioned in the arbitration
agreement.

5. Party Autonomy: The concept of party autonomy is the central theme of the Act. The
expressions used in the Act – 'unless otherwise agreed by the parties', 'with the
agreement of parties”, if the parties in dispute have expressly authorized' etc.,
strengthens the idea of party autonomy.

6. Minimal Interference by Judiciary: One of the major defects of earlier arbitration law
was that the party could access court almost at every stage of arbitration – right from the
appointment of an arbitrator to implementation of the final award. Thus, the defending
party could approach the court at various stages and stall the proceedings. Now, the
approach to court has been drastically curtailed. In some cases, if an objection is raised
by the party, the decision on that objection can be given by Arbitral Tribunal itself. After
the decision, the arbitration proceedings are continued and the aggrieved party can
approach Court only after Arbitral Award is made.

7. Arbitral Award: Decision of Arbitral Tribunal is termed as ‘Arbitral Award'. The

arbitrator can decide the dispute ex aequo et bono (In justice and in good faith) if both
the parties expressly authorized him to do so. The decision of the Arbitral Tribunal will be
by majority. The arbitral award shall be in writing and signed by the members of the
tribunal. The award should be dated and the place, where it is made, should be
mentioned. Copy of award should be given to each party.

8. Reasoned Award: The award must be in writing and signed by the members of the
Arbitral Tribunal. It must state the reasons for the award unless the parties have agreed
that no reason for the award is to be given. Previous to this Act reasoning of the award
by the arbitrator was not mandatory. CD 
9. Enforceability of Award: Under this Act, every final arbitral award is enforceable as a decree
of the court of law and not required to be made a “rule of court”.

10. Over-Riding Effect of the Act: Section 5 of the Act clarifies that notwithstanding anything
contained in any other law for the time being in force, in matters governed by the Act, the judicial
authority can intervene only as provided in this Act and not under any other Act.

11. Applicability of the Limitation Act: For this purpose, the date on which the aggrieved party
requests another party to refer the matter to arbitration shall be considered. If on that date, the
claim is barred under Limitation Act, the arbitration cannot continue. If the Arbitration award is
set aside by Court, time spent in arbitration will be excluded for purpose of the Limitation Act.

12. Aligning Procedure with the UNCITRAL Model Law: The Act has been enacted taking
into account the United Nation's Commission on International Trade Law (UNCITRAL) Model
Law and UNCITRAL Conciliation Rules. This promotes unification and harmonization of
International Tarde Law by harmonizing concepts of Arbitration and Conciliation of the legal
system of the world. .

13. Clear Distinction Between Arbitration and Conciliation: The provisions that relate to the
process of Arbitration are contained in Part I which includes Chapters I to IX, while the
provisions that relate to the process of Conciliation are dealt with in Part III that includes section
61 to 81. 4. Conciliation: Conciliation is the amicable settlement of disputes between the parties,
with the help of a conciliator. Part III of the Act makes provision for conciliation proceedings. In
conciliation proceedings, there is no agreement for arbitration. In fact, conciliation can be done
even if there is an arbitration agreement. The conciliator only brings parties together and tries to
solve the dispute using his good offices. The conciliator has no authority to give an award. He
only helps parties in arriving at a mutually

Appointment of arbitrators
Parties normally mention in their arbitration clause whether disputes will be adjudicated by a
sole arbitrator or by a panel consisting of an odd number of arbitrators. The default provision
is for a sole arbitrator. If the parties fail to agree on the appointment of arbitrators, they have
the option under section 11 of the Arbitration Act to have the arbitrator(s) appointed by the
court.
Removal of arbitrators
Parties can challenge the appointment of an arbitrator under sections 12 and 13 of the
Arbitration Act, if a justifiable doubt arises as to the arbitrator's independence or impartiality
or the arbitrator(s) does not possess the necessary qualification as agreed by the parties.
Certain categories of Arbitrators have been made ineligible under the amended provisions
of the Arbitration Act. In addition, an arbitrator can be removed under section 14 if the:
 Arbitrator(s) is unable to perform his functions or for other reasons.
 Arbitrator fails to act without undue delay.
 Arbitrator withdraws from his office.
 Parties agree to terminate the arbitrator's mandate.
If an arbitrator becomes legally or practically unable to perform his function or withdraws
from his office, the court can be approached to decide on the termination of the mandate of
the arbitrator and appointment of another arbitrator (unless otherwise agreed by the
parties). However, the arbitrator's impartiality and independence must be raised in the first
instance before the arbitrators. If the arbitrators do not accept the submission, this can be a
ground for challenging the award. However, the court can also remove arbitrators if they are
found to be ineligible.
Conciliator -  Appointment and qualifications 
Conciliator can be appointed by the parties themselves of their own choice with
consensus i.e. both should agree upon the appointment of the conciliator. IDRC has a
Panel of Conciliators with rich experience in varied fields.
The parties follow any of the following methods.
(a) The parties themselves may name a conciliator or conciliators from IDRC Panel. 
(b) Each party may appoint one conciliator from IDRC Panel & may mutually agree on
the third conciliator. 
(c) The parties may enlist the assistance of a suitable institution ie IDRC  in connection
with the appointment of conciliators.
In the case of family court, or labour court etc, before referring the matter to the court it is
compulsory to consult with the councilor i.e. conciliator, who are appointed by the
government for making settlement between the parties before the trial & on the report of
the councilor only, matter is put forth for trial.
Here, Conciliator should not be of a specific qualification, but he should also not be
ignorant of the subject matter. He can be a expert person of the subject matter of dispute
for e.g. if there is a dispute regarding construction cost of a building in that case a person
can be a civil engineer, who has the knowledge of building construction. The important
thing, which cannot be ignored, is that conciliation is not the person who will decide the
matter; rather he is a person who assists the parties to arrive at amicable settlement,
where the decision is of the parties themselves.
Termination of Conciliation proceedings upon settlement between the parties
As and when the parties reach an amicable settlement on the disputes which had been
referred to the conciliator, and a duly authenticated copy (by the conciliator) of the
settlement agreement is handed over to the parties, the conciliation proceedings shall
stand terminated on that date. There is no provision in the Act for review of the
settlement agreement, nor there do any provision under which any of the parties to the
settlement agreement can retrace its steps and wriggle out of the written commitments in
the form of a settlement agreement.
A conciliation proceeding comes to an end and stands terminated if any of the following
condition is fulfilled-
(i) On signing of the settlement agreement by the parties.
(ii) If no settlement of dispute is arrived at in any of the following manner:
 a) By a written declaration of the conciliator that further efforts at conciliation are no more
justified.
b) By joint written declaration of the parties that the conciliation proceedings are
terminated.
c) By the declaration of either party to other party & conciliator, that conciliation
proceeding is terminated. It is open to the parties to terminate conciliation proceedings at
any time before settlement.

The conciliation proceedings can also be terminated:

(i) When the conciliator declares, after consultation with the parties, that any further
exercise on conciliation shall be an exercise in futility; or
(ii) When the parties jointly request the conciliator; or
(iii) When one party communicates to the other, with a copy to the conciliator, that no
more efforts be made in the conciliation matter.
There is no bar on the number of times the efforts for conciliation can be made.
Termination of conciliation proceedings can by no means be taken to be the end of the
conciliation efforts for all times to come.

Passing of Award
Introduction:
Arbitration is the process by which a dispute or difference between two or more parties
as to their mutual legal rights and liabilities is referred to and determined judicially and
with binding effect by the application of the law by one or more persons constituting the
“arbitral tribunal” instead of by a court of law. (Halsbury’s Laws of England, (4th ed.
Butterworths, 1991) paras. 332 and 601.)
The arbitrator conducts hearings with the parties and passes his decision in the form of
an award. It is analogous to a judgment given by a court and can be enforced in the
same way as a court-ordered judgment. It is final and binding upon the parties unless
challenged in accordance with Section 34 of the Arbitration and Conciliation Act, 1996
(“Act”).
Drafting an award is a complex matter as the arbitrator must condense the entire
proceedings into a coherent and reasoned document. This chapter shall examine the
requirements of a valid arbitral award as per the Act.
 
Definition of award:
The Act does not give a concrete definition of the term ‘arbitral award’. Section 2(1)(c)
merely states that for the purposes of Part I of the Act, the term includes an interim award
within its meaning.
Types of awards:
The type of award is generally stated in its title. There are four distinct types of awards
defined under the Act, each of them fulfilling specific purposes:
Interim award:
 It is an award that affects the rights of the parties but is not a final award. An arbitral
tribunal may at any time during the arbitral proceedings make an interim arbitral award on
any matter with respect to which it may make a final arbitral award.
Additional award:
Such an award is made upon application by a party when a claim or claims are presented
in the arbitral proceedings but omitted from the arbitral award.
As per the Act, such a request for an additional award must be made within thirty days
from the receipt of the arbitral award. Notice of the same must also be given to the other
party.
Settlement award:
If during the arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall
terminate the proceedings and, if requested by the parties and not objected to by the
arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.
An arbitral award on agreed terms shall be made in accordance with Section 31 and shall
state that it is an arbitral award.
An arbitral award on agreed terms shall have the same status and effect as any other
arbitral award on the substance of the dispute.
Final award:
It is an award that brings finality to the arbitral proceedings. The final award is passed
after the disputes have been adjudicated by the arbitrator based on all the pleadings and
evidence led by the parties. It has the effect of terminating the arbitration proceedings.
 
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect,
Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And
Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A)
And Other Related Laws Being Force In India, For The Time Being.
 Arbitral Award
 Definition of award:
 Types of award:
Section 89 of CPC
Section 89 of the Code of Civil Procedure, 1908 gives power to the court to refer the
matter to the alternate dispute resolution methods when it appears to the court that there
exists an element of settlement which may be acceptable to the parties then the court
may formulate such settlement or propose a tentative settlement and refer the parties to
an alternate means of setting the dispute such as arbitration, conciliation, Lok Adalat or
mediation.
The intention behind section 89 was quite apparent, as most of the developed countries
had already adopted the alternate dispute resolution methods and the methods adopted
by them were proved to be successful to the extent that over 90 per cent of the cases
were being settled out of court. It had been inserted to provide justice in spite of the law’s
delays and the limited number of judges available. Parties can prevent themself from
indulging into litigation and go for dispute resolution methods for resolving their dispute.
1
[89. Settlement of disputes outisde the Court.--(1) Where it appears to the Court that
there exist elements of a settlement which may be acceptable to the parties, the Court
shall formulate the terms of settlement and give them to the parties for their observations
and after receiving the observations of the parties, the Court may reformulate the terms
of a possible settlement and refer the same for:--
 (a) arbitration;

(b) conciliation;

(c) judicial settlement including settlement through Lok Adalat: or

(d) mediation.

(2) Were a dispute has been referred--

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act,
1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were
referred for settlement under the provisions of that Act;

(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the
provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 (39
of 1987) and all other provisions of that Act shall .apply in respect of the dispute so
referred to the Lok Adalat;

(c) for judicial settlement, the Court shall refer the same to a suitable institution or person
and such institution or person shall be deemed to be a Lok Adalat and all the provisions
of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were
referred to a Lok Adalat under the provisions of that Act;

(d) for mediation, the Court shall effect a compromise between the parties and shall follow such
procedure as may be prescribed.]

Section 10 in The Indian Contract Act, 1872

10. What agreements are contracts.—All agreements are contracts if they are made by
the free consent of parties competent to contract, for a lawful consideration and with a
lawful object, and are not hereby expressly declared to be void. —All agreements are
contracts if they are made by the free consent of parties competent to contract, for a
lawful consideration and with a lawful object, and are not hereby expressly declared to be
void." Nothing herein contained shall affect any law in force in 1[India], and not hereby
expressly repealed, by which any contract is required to be made in writing 2or in the
presence of witnesses, or any law relating to the registration of documents.

11. Who are competent to contract.—Every person is competent to contract who is of the age of
majority according to the law to which he is subject,1 and who is of sound mind and is not
disqualified from contracting by any law to which he is subject. —Every person is competent to
contract who is of the age of majority according to the law to which he is subject,1 and who is of
sound mind and is not disqualified from contracting by any law to which he is subject."