Analysis: Law And Morality

<?xml version="1.0" encoding="UTF-8"?><root available-locales="en_US," default-locale="en_US"><static-content language-id="en_US"><![CDATA[<p><div align="justify"><span class='dropthecap'>G</span>yrett India's practice to help employees by providing loans for security deposits for tenanted premises, is a common practice and, in a country where accommodation is becoming dearer by the day, very laudable. However, an organisation must also ensure that its own interests are taken care of. Sadly enough, where many organisations and most people err is that they ‘pay attention' only when the problem has arisen.<br /><br />It was important for Kabir to take all necessary steps to terminate the lease in a proper manner — by way of written communication — and preserve a written record of any statement made by his landlord, Kohli, with respect to non-repayment of the security deposit. In the absence of these, both Kohli and Gyrett can, in fact, initiate legal action against Kabir for damage to the flat and refund of the security deposit, respectively. In fact, there being no privity of contract between Gyrett and Kohli, the only way for the company to recover its money would be from Kabir.<br /><br /><strong>What Should Have Been Done? </strong><br />Kabir ought to have written to Kohli (letter or e-mail) stating clearly that he wished early termination of the lease. Given Kohli's stance that he was not in a position to refund the security deposit, Kabir should have called him to the flat, shown him that the flat had been vacated and was in the same condition as when the lease had commenced. Thereafter, Kabir should have handed over notional possession to Kohli and told him that the keys to the premises would be handed over simultaneous to the refund of the security deposit to Gyrett. All this could have been recorded in a one-page letter signed by both Kabir and Kohli.<br /><br />Subsequently, having found out about Mrs Kohli's unauthorised entry into the premises, Gyrett or Kabir should also have again immediately written to Kohli stating the facts and recording the situation from the time of first <br />offer of vacation till present and reiterating the date of vacation of the flat. <br /><br />Once again, notional possession should have been offered to Kohli (if not already handed over), with the actual physical possession and the keys to be delivered upon refund of the security deposit. What Gyrett should not do is play mediator between the estranged couple. This is neither their responsibility nor their area of expertise.<br /><strong><br />What If None Of This Has Been Done?  </strong><br />Kabir has the option of filing a civil suit against Kohli for recovery of the security deposit. In these proceedings, the keys of the premises can be handed over before the court. In the suit, Kabir would have to establish leading suitable evidence that any/all damage to the premises happened after he vacated the premises and that he is not liable for the same. Gyrett can support Kabir in these proceedings.<br /><br />It is correct that the law is codified and available at the press of a few buttons. Companies and their employees also have the advantage of both in-house and external specialised legal assistance. If Kabir had only thought to take Avijit's advice before taking steps to vacate the flat, the whole situation could have been more favourable for Gyrett. But this will only happen if there is a culture prevalent in an organisation that legal assistance has to be taken not only to get you out of a soup, but to prevent you getting into a soup in the first place.<br /><strong><br />And What About The Mrs Kohli?</strong> <br />We must remember that the ex-Mrs Kohli has herself broken the law. She had the option available to seek recourse against Kohli by approaching the family court or invoking a court-supervised mediation. But she has chosen to ignore all those options. In the present case, CEO Rai's view is based on a story told by the lady, the veracity of which he is not in a position to evaluate. Although his view may appear humanitarian, it is in effect perpetuating an illegality, which in the long run can only be disadvantageous to all concerned. Would it not, therefore, be more advisable to initiate legal action against Mrs Kohli and to first protect the company's interests? <br /><br />The law cannot always guarantee a win-win situation. This is not because the law is lacking; rather it is because certain individuals are found wanting.<br /><br />The law and its enforcement are not an anathema to how we would like to conduct ourselves as ‘moral' people. However, often enough, things come to such a pass and we face such dilemmas because of the our carelessness in conducting our affairs and because we implicitly or explicitly help perpetuate the weaknesses or flaws in the system. The moment we stop doing this we will find that law enforcement works in our favour, as it is supposed to, and not against us.<br /><br /><em>Ananya Kumar is a senior associate at JSA, Advocates &amp; Solicitors. The views expressed here are his own</em></div> <script type="text/javascript"> var intro = jQuery.trim(jQuery('#commenth4').text()) var page = jQuery.trim(jQuery('#storyPage').text()) if (page.indexOf(intro) < 0) { jQuery('#commenth4').attr('style', 'display:block;') } </script> (This story was published in Businessworld Issue Dated 28-12-2009)