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 Term Report: Submitted to: Sir Zia Kayani 2012 MEMBERS: Muqadam Butt 11476 Business Law
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 Term Report:

Submitted to: Sir Zia Kayani 

2012 

MEMBERS:

Muqadam Butt 11476

Business Law

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LAW OF PAKISTAN 

The Law of Pakistan is the law and legal system existing in the Islamic Republic of 

Pakistan. Pakistani law is based upon the legal system of British India; thus ultimately on

the common law of England and Wales. Pakistan as an Islamic republic also has been

influenced by Islamic Sharia law.

HISTORY: 

Upon the list of the Dominion of Pakistan in 1947 the laws of the erstwhile British Raj

remained in force. At no point in Pakistan's legal history was there an intention to begin the

statute book afresh. During the reign of General Muhammad Zia-ul-Haq, elements of 

Islamic Sharia law were incorporated into Pakistani law, leading to the institution of 

a Federal Shariat Court (FSC). In some Federally and Provincially Administered Tribal

Areas [(FATA) and (PATA)], a system of law employing traditional methods persists at the

local level. At this informal level, disputes are settled by a jirga, a council of tribal elders.

 SOURCES OF PAKISTANI LAW WITH REFERENCE TO BUSINESS LAW 

BUSINESS LAW IN PAKISTAN  

This overview of business laws of Pakistan is a very brief description of common forms of 

businesses adopted by private and public sector investors in Pakistan. An attempt has also

been made to outline general requirements and regulatory regimes for each of these forms

of businesses in Pakistan. These brief notes are for general guidance only and should not be

taken as a substitute for thorough and professional legal advice.

What are the common forms of business in Pakistan? Main forms of business organizations adopted by private sector in Pakistan are as follows:

  Sole proprietorship in Pakistan

  Partnership in Pakistan

  Limited liability company in Pakistan

  Joint venture in Pakistan

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RELEVANT LAWS OF PAKISTAN 

  Companies Ordinance, 1984

  Companies General Provisions and Forms Rules, 1985

  Single Member Companies Rules, 2003

  Schedule of Filing Fee

Companies remain the most favored form of business organization in Pakistan especially

for medium and large-scale business enterprises. Legal regime for establishment and

regulation of companies in Pakistan is given in the Companies Ordinance, 1984. Whereas

the function of administration of these companies is vested in the Securities and Exchange

Commission of Pakistan and the Registrar of Companies appointed by the Securities and

Exchange Commission of Pakistan for a province of Pakistan where such company is to be

registered.

Under the provisions of the Companies Ordinance, 1984 a company is a body corporate

with separate legal entity and a perpetual succession and a company may be formed by

persons associating for any lawful purpose by subscribing their names to the Memorandum

of Association and complying with other requirements for registration of a company under

the provisions of the Ordinance.

THE COMPANIES ORDINANCE, 1984 PROVIDES FOR THREE DIFFERENT TYPES OF

COMPANIES: 

  A company limited by shares

  A company limited by guarantee

 An unlimited liability company

Further, under the Companies Ordinance, 1984 two types of limited liability companies areprovided for, namely:

  A private limited company

  A public limited company (which may be listed or unlisted)

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Any one or more persons associated for any lawful purpose by subscribing their name(s) to

the Memorandum of Association and complying with other registration specific

requirements of the Companies Ordinance, 1984 may incorporate a private limited

company. Provided that where a company has only one subscriber to the Memorandum of Association then such a company is called a Single Member Company, however, a Single

Member Company remains a private limited company for all intents and purposes of the

Ordinance. Whereas any three or more persons so associated may form a public limited

company. A company limited by shares, whether a private company or a public company, is

the most common vehicle for carrying out a business enterprise in Pakistan. .

REGISTRATION OF A COMPANY AND COMMENCEMENT OF BUSINESS IN PAKISTAN: 

The first step toward incorporation of a company in Pakistan is to file an application before

the Registrar of Companies for availability of name. If the proposed name of the company isavailable and it is not in contravention to the provisions of the Companies Ordinance, 1984

and the Rules formed there under, then the Registrar shall issue a certificate stating that 

the proposed name is available to be adopted.

The next step is to file the Memorandum of Association and Articles of Association, which

in effect is the constitution of any company, with the Registrar of Companies in the

Province where proposed company is to be incorporated, along with other necessary forms

prescribed under the Companies Ordinance, 1984. When the company has been registered,

the Registrar issues a Certificate of Incorporation. Once such a certificate has been issued

by the Registrar a private limited company may commence its business immediately.

Nonetheless, a public limited company cannot commence its business or exercise itsborrowing powers yet unless the Registrar has issued a Certificate for Commencement of 

Business. The Registrar issues the Certificate for Commencement of Business only if the

following requirements have been fulfilled:

  Shares held subject to the payment of the whole amount thereof in cash have been

allotted to an amount not less in the whole than the minimum subscription

  Every director of the company has paid to the company the full amount on each of 

the shares taken or contracted to be taken by him and for which he is liable to pay in

cash

  No money is or may become liable to be repaid to applicants for any shares or

debentures which have been offered for public subscription by reason of any failure

to apply for or to obtain permission for the shares or debentures to be dealt in on

any stock exchange

  There has been filed with the Registrar of Companies a duly verified declaration by

the chief executive or one of the directors and the secretary in the prescribed form

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that the aforesaid conditions have been complied with and the Registrar of 

Companies has issued a Certificate of Commencement of Business

  In the case of a company which has not issued a prospectus inviting the public to

subscribe for its shares, there has been filed with the Registrar of Companies, a

statement in lieu of prospectus

A public limited company may either be listed or unlisted. In case of a listed company its

shares may be quoted and dealt with on one of the three stock exchanges of Pakistan viz.

Karachi Stock Exchange, Lahore Stock Exchange and Islamabad Stock Exchange. Whereas

the shares of an unlisted public limited company may not listed on a stock exchange. A

public limited company that intends to have its shares listed on a stock exchange must 

obtain permission from the relevant stock exchange under the listing regulations of that 

stock exchange.

 SPECIAL TYPES OF CONTRACT :

Contracts of Indemnity and Guarantee 

A contract of indemnity is one whereby a person promises to save the other from loss

caused to him by the conduct of the promisor himself or of any third person.For example,a

shareholder executes an indemnity bond favouring the company thereby agreeing to

indemnify the company for any loss caused as a consequence of his own act.The person

who gives the indemnity is called the 'indemnifier' and the person for whose protection it is

given is called the 'indemnity-holder' or 'indemnified'. A contract of indemnity is restricted

to cover the loss caused by the promisor himself or by a third person.The loss must be

caused by some human agency.Loss arising from accidents like fire or perils of the sea are

not covered by a contract of indemnity.

A contract of 'guarantee' is a contract,whether oral or written,to perform the promise,or

discharge the liability,of a third person in case of his default. A contract of guarantee

involves three persons,viz. a person who gives the guarantee is called the 'surety'; the

person in respect of whose default the guarantee is given called the 'principal debtor'; and

the person to whom the guarantee is given is called the 'creditor'. A contract of guarantee is

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a conditional promise by the surety that if the principal debtor defaults he shall be liable to

the creditor.

Difference between Indemnity and Guarantee:-

  In a contract of indemnity there are two parties i.e. indemnifier and indemnified. A

contract of guarantee involves three parties i.e. creditor, principal debtor and

surety.

  An indemnity is for reimbursement of a loss, while a guarantee is for security of the

creditor.

  In a contract of indemnity the liability of the indemnifier is primary and arises when

the contingent event occurs. In case of contract of guarantee the liability of surety is

secondary and arises when the principal debtor defaults.

  The indemnifier after performing his part of the promise has no rights against the

third party and he can sue the third party only if there is an assignment in his

favour. Whereas in a contract of guarantee, the surety steps into the shoes of thecreditor on discharge of his liability, and may sue the principal debtor.

CONTRACTS OF BAILMENT AND PLEDGE 

A 'bailment' is the delivery of goods by one person to another for some purpose upon a

contract that they shall, when the purpose is accomplished,be returned or disposed of 

according to the directions of the person delivering them. The person delivering the goods

is called the 'bailor' and the person to whom the goods are delivered is called the 'bailee'.

The examples of a contract of bailment are:- delivering a watch or radio for repair; leavinga car or scooter at a parking stand; leaving luggage in a cloak room; delivering gold to a

goldsmith for making ornaments; leaving garments with a dry cleaner,etc. The essence of 

bailment is the transfer of possession. The ownership remains with the owner. Therecannot be a bailment of immovable property.

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A 'pledge' is a bailment of goods wherein the goods are delivered as a security for payment 

of a debt or performance of a promise.The bailor is called the 'pledgor' or 'pawnor' and the

bailee is called the 'pledgee' or 'pawnee'. Thus, pledge is a special kind of bailment. Pledge

can be made only of movable properties. In order to make the pledge legally valid it is

essential that the pledgor has the legal right or title to retain the goods.

Difference between Bailment and Pledge:-

  Purpose:- A pledge is made for a specific purpose, while bailment can be made forany purpose.

  Property:- In bailment, the bailee gets only the possession of goods bailed. The

ownership remains with the bailor. In the case of pledge, the pledgee acquires a

special property in the goods pledged whereby he gets possession coupled with the

power of sale, on default.

  Right of sale :- Bailee can exercise a lien on the goods bailed. He has no right of sale.But in case of a pledge, the pledge can sell the goods after due notice to pawner.

CONTRACTS OF AGENCY  

An 'Agent' is a person employed to do any act or to represent another in dealings with third

persons. The person who employs the agent and for whom such act is done,or who is so

represented,is called the 'principal'. The relation between the agent and the principal iscalled 'Agency'. It is only when a person acts as a representative of the other in the

creation,modification or termination of contractual obligations,between that order and

third persons,that he is an agent. The essence of a contract of agency is the agent's

representative capacity coupled with a power to affect the legal relations of the principal

with third persons.

Contracts of agency are based on two important principles:-

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  Whatever a person can do personally shall also be allowed to be done through an

agent except in case of contracts involving personal services such as painting,marriage, singing, etc.

  He who does an act through a duly authorised agent does it by himself i.e. the acts of 

the agent are considered the acts of the principal

 SALE OF GOODS ACT 1930 :

Sale of Goods Act is one of very old mercantile law. Sale of Goods is one of the special types

of Contract. Initially, this was part of Indian Contract Act itself in chapter VII (sections 76 to

123). Later these sections in Contract Act were deleted, and separate Sale of Goods Act was

passed in 1930.

The Sale of Goods Act is complimentary to Contract Act. Basic provisions of Contract Act 

apply to contract of Sale of Goods also. Basic requirements of contract i.e. offer and

acceptance, legally enforceable agreement, mutual consent, parties competent to contract,

free consent, lawful object, consideration etc. apply to contract of Sale of Goods also.

CONTRACT OF SALE 

A contract of sale of goods is a contract whereby the seller transfers or agrees to transferthe property in goods to the buyer for a price. There may be a contract of sale between one

part-owner and another. [section 4(1)]. A contract of sale may be absolute or conditional.

[section 4(2)].

Thus, following are essentials of contract of sale - * It is contract, i.e. all requirements of 

‘contract’ must be fulfilled * It is of ‘goods’ * Transfer of property is required * Contract is

between buyer and seller * Sale should be for ‘price’ * A part owner can sale his part to

another part-owner * Contract may be absolute or conditional.

HOW CONTRACT OF SALE IS MADE  

A contract of sale is made by an offer to buy or sell goods for a price and the acceptance of 

such offer. The contract may provide for the immediate delivery of the goods or immediate

payment of the price or both, or for the delivery or payment by instalments, or that the

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delivery or payment or both shall be postponed. [section 5(1)]. Subject to the provisions of 

any law for the time being in force, a contract of sale may be made in writing or by word of 

mouth, or partly in writing and partly by word of mouth or may be implied from the

conduct of the parties. [section 5(2)]. Thus, credit sale is also a ‘sale’. - - A verbal contract 

or contract by conduct of parties is valid. e.g. putting goods in basket in super market or

taking food in a hotel.

TWO PARTIES TO CONTRACT  

Two parties are required for contract. - - “Buyer” means a person who buys or agrees to

buy goods. [section 2(1)]. “Seller” means a person who sells or agrees to sell goods. [section

2(13)]. A part owner can sale his part to another part-owner. However, if joint owners

distribute property among themselves as per mutual agreement, it is not ‘sale’ as there are

no two parties.

CONTRACT OF SALE INCLUDES AGREEMENT TO SALE  

Where under a contract of sale the property in the goods is transferred from the seller to

the buyer, the contract is called a sale, but where the transfer of the property in the goods

is to take place at a future time or subject to some condition thereaf ter to be fulfilled, the

contract is called an agreement to sell. [section 4(3)]. An agreement to sell becomes a sale

when the time elapses or the conditions are fulfilled subject to which the property in the

goods is to be transferred. [section 4(4)]. The provision that contract of sale includes

agreement to sale is only for the purposes of rights and liabilities under Sale of Goods Act 

and not to determine liability of sales tax, which arises only when actual sale takes place.

TRANSFER OF PROPERTY  

“Property” means the general property in goods, and not merely a special property.

[section 2(11)]. In layman’s terms ‘property’ means ‘ownership’. ‘General Property’ means

‘full ownership’. Thus, transfer of ‘general property’ is required to constitute a sale. If 

goods are given for hire, lease, hire purchase or pledge, ‘general property’ is not 

transferred and hence it is not a ‘sale’. 

POSSESSION AND PROPERTY 

Note that ‘property’ and ‘possession’ are not synonymous. Transfer of possession does not 

mean transfer of property. e.g. - if goods are handed over to transporter or godown keeper,

possession is transferred but ‘property’ remains with owner. Similarly, if goods remain in

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main purpose of the contract, the breach of which gives rise to a right to treat the contract 

as repudiated. [section 12(2)]. Whether a stipulation in a contract of sale is a condition or a

warranty depends in each case on the construction of the con tract. A stipulation may be a

condition, though called a warranty in the contract. [section 12(4)].

Where a particular stipulation in contract is a condition or warranty depends on theinterpretation of terms of contract. Mere stating ‘Conditions of Contract’ in agreement does

not mean all stipulations mentioned are ‘conditions’ within meaning of section 12(2). 

WHEN CONDITION TO BE TREATED AS WARRANTY 

Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer

may waive the condition or elect to treat the breach of the condition as a breach of warran

ty and not as a ground for treating the contract as repudiated. [section 13(1)]. Where a

contract of sale is not severable and the buyer has accepted the goods or part thereof, the

breach of any condition to be fulfilled by the seller can only be treated as a breach of 

warranty and not as a ground for rejecting the goods and treating the contract as

repudiated, unless there is a term of the con tract, express or implied, to that effect. [section

13(2)]. Nothing in this section shall affect the case of any condition or warranty fulfillment 

of which is excused by law by reason of impossibility or otherwise. [section 13(3)].

TIME OF PAYMENT IS NOT ESSENCE OF CONTRACT BUT TIME OF

DELIVERY OF GOODS IS, UNLESS SPECIFIED OTHERWISE

Unless a different intention appears from the terms of the contract, stipulations as to timeof payment are not deemed to be of the essence of a contract of sale. Whether any other

stipula tion as to time is of the essence of the contract or not depends on the terms of the

contract. [section 11]. As a general rule, time of payment is not essence of contract, unless

there is specific different provision in Contract. In other words, time of payment specified is

‘warranty’. If payment is not made in time, the seller can claim damages but cannot 

repudiate the contract.

CAVEAT EMPTOR 

The principle termed as ‘caveat emptor’  means ‘buyer be aware’. Generally, buyer is

expected to be careful while purchasing the goods and seller is not liable for any defects in

goods sold by him. This principle in basic form is embodied in section 16 that subject to

provisions of Sale of Goods Act and any other law, there is no implied condition or

warranty as to quality or fitness of goods for any particular purpose. As per section 2(12),

“Quality of goods” includes their state or condition. 

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TRANSFER OF PROPERTY AS BETWEEN SELLER AND BUYER 

Transfer of general property is required in a sale. ‘Property’ means legal ownership. It is

necessary to decide whether property in goods has transferred to buyer to determinerights and liabilities of buyer and seller. Generally, risk accompanies property in goods i.e.

when property in goods passes, risk also passes. If property in goods has already passed on

to buyer, seller cannot stop delivery of goods even if in the meanwhile buyer has become

insolvent. - - - Where there is a contract for the sale of unascertained goods, no property in

the goods is transferred to the buyer unless and until the goods are ascertained. [section

18].

PROPERTY PASSES WHEN INTENDED TO PASS

Where there is a contract for the sale of specific or ascertained goods the property in themis transferred to the buyer at such time as the parties to the contract intend it to be

transferred. [section 19(1)]. For the purpose of ascertaining the intention of the parties

regard shall be had to the terms of the contract, the conduct of the parties and the

circumstances of the case. [section 19(2)]. Unless a different intention appears, the rules

contained in sections 20 to 24 are rules for ascertaining the intention of the parties as to

the time at which the property in the goods is to pass to the buyer. [section 19(3)].

SPECIFIC GOODS IN A DELIVERABLE STATE

Where there is an unconditional contract for the sale of specific goods in a deliverable state,the property in the goods passes to the buyer when the contract is made, and it is immate

rial whether the time of payment of the price or the time of delivery of the goods, or both, is

postponed. [section 20].

 AUCTION SALE

Auction sale is special mode of sale. The sale is made in open after making public

announcement. Buyers assemble and make offers on the spot. Person offering to pay

highest price gets the goods. Usually, auctioneer is appointed to conduct auction. Higher

and higher bids are offered and sale is complete when auctioneer accepts a bid.- - - In the

case of a sale by auction— 

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(1) where goods are put up for sale in lots, each lot is prima facie deemed to be the subject 

of a separate contract of sale;

(2) the sale is complete when the auctioneer announces its completion by the fall of the

hammer or in other customary man ner; and, until such announcement is made, any bidder

may retract his bid;

(3) a right to bid may be reserved expressly by or on behalf of the seller and, where such

right is expressly so re served, but not otherwise, the seller or any one person on his behalf 

may, subject to the provisions hereinafter contained, bid at the auction;

(4) where the sale is not notified to be subject to a right to bid on behalf of the seller, it shall

not be lawful for the seller to bid himself or to employ any person to bid at such sale, or for

the auctioneer knowingly to take any bid from the seller or any such person; and any sale

contravening this rule may be treated as fraudulent by the buyer;

(5) the sale may be notified to be subject to a reserved or upset price; (6) if the seller makes

use of pretended bidding to raise the price, the sale is voidable at the option of the buyer.

[section 64].

DELIVERY OF GOODS TO BUYER

The Act makes elaborate provisions regarding delivery of goods to buyer. It is the duty of 

the seller to deliver the goods and of the buyer to accept and pay for them, in accordance

with the terms of the contract of sale. [section 31]. Unless otherwise agreed, delivery of thegoods and payment of the price are concurrent conditions, that is to say, the seller shall be

ready and willing to give possession of the goods to the buyer in exchange for the price, and

the buyer shall be ready and willing to pay the price in exchange for possession of the

goods. [section 32]. - - Note that this is ‘unless otherwise agreed ’, i.e. buyer and seller can

agree to different provisions in respect of payment and delivery.

 ACCEPTANCE OF GOODS BY BUYER 

Contract of Sale is completed not by mere delivery of goods but by acceptance of goods by

buyer. ‘Acceptance’ does not mean mere receipt of goods. It means checking the goods toascertain whether they are as per contract. - - - Where goods are delivered to the buyer

which he has not previously examined, he is not deemed to have accepted them unless and

until he has had a reasonable opportunity of examining them for the purpose of 

ascertaining whether they are in conform ity with the contract. [section 41(1)]. - - Unless

otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on

request, to afford the buyer a reasonable opportunity of examining the goods for the

purpose of ascertaining whether they are in conformity with the contract. [section 41(2)].

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BUYER’S AND SELLER’S DUTIES 

The Act casts various duties and grants certain rights on both buyer and seller.

RIGHTS OF UNPAID SELLER AGAINST THE GOODS

 After goods are sold and property is transferred to buyer, the only remedy with seller is to

approach Court, if the buyer does not pay. Seller has no right to take forceful possession of 

goods from buyer, once property in goods is transferred to him. However, the Act gives

some rights to seller if his dues are not paid.

SUITS FOR BREACH OF THE CONTRACT

Unpaid seller can exercise his rights to the extent explained above. In addition, seller can

exercise following rights in case of breach of contract. Buyer has also rights in case of 

breach of contract.

MEASURE FOR COMPENSATION AND DAMAGES 

The Sale of Goods Act does not specify how to measure damages. However, since the Act is

complimentary to Contract Act, measure of compensation and damages will be as providedin sections 73 and 74 of Contract Act.

PARTNERSHIP :

Relevant Partnership Laws

Partnership remains a common mode of business enterprise i for small to medium business

set-ups. Partnerships are normally formed where there is a desire to have some structural

flexibility alongwith some formality of relationship between partners. There is no

compulsory requirement for registration of a partnership in Pakistan . Nonetheless some

litigation and tax related consequences and advantages are linked to a registered

partnership.

Legal regime for establishment and regulation of partnerships in Pakistan is stated in the

Partnership Act, 1932 which defines a partnership in the following terms:

"as the relation between persons who have agreed to share the profits of a business carried on

by all or any of them acting for all." 

Any twenty or less persons desiring to carry out a lawful commercial activity or a

profession may form a partnership except in certain cases e.g. where twenty or more

persons may form partnership to undertake practice as lawyers or accountants or any

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other practice which cannot be carried out as a limited liability company under the

provisions of law. In all other cases where the number of intended partners increases

beyond the figure of twenty a company should be incorporated.

A partnership may be registered with the Registrar of Firms of an area where the office of 

the firm is situated or proposed to be situated. A statement in prescribed form must bedelivered to the relevant Registrar stating:

  Firm name

  Place or principal place of business of the firm

  Names of any other places where the firm carries on business

  Date when each partner joined the firm

  Names in full and permanent addresses of the partners

  Duration of the firm

The aforestated statement must be signed by all the partners of the firm for the time being

or any authorized agent on their behalf. Furthermore, the statement must be verified by the

persons signing it. Once Registrar is satisfied that the abovementioned requirements have

been complied with he records entry of the statement in Register of Firms and files the

statement.

FORMATION OF STATUTORY CORPORATIONS 

Statutory corporations or bodies are creation of a statute. They are formed by the Central

Government or a Provincial Government through a Central Statute or a Provincial statute,

as the case may be. The purpose, functions, powers, duties, liabilities, rights, management 

and legal status of any such statutory corporation is governed by each individual

enactment under which such statutory corporation has come into existence.

Administration of such statutory corporations is vested in a governing body, chairman etc.

as envisaged under the enabling statute. Circumstances or pre-conditions of winding-up of 

any statutory corporation are also provided under the relevant statute.

Statutory Corporations do not require any registration.

RELEVANT JOINT VENTURE RELATED LAWS 

LAW REGARDING JOINT VENTURES  

Joint ventures are an appropriate vehicle of carrying out a business in Pakistan in cases

where two or more parties do not intend to form a separate entity to deal with a venture,

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however, they merely agree to act together in a specific manner and under certain terms

and conditions. In such a case each party retains its own individual identity which may be

in the form of a company or a partnership. In a joint venture, therefore, these parties agree

to enter into a consortium or a joint venture agreement. Relationship between the parties

is created on the terms and conditions as stated in this agreement and no relationship that 

is beyond the ambit of this agreement comes into existence. Rights, liabilities etc. of eachcontracting party are also determined according to the terms and conditions of the

agreement.


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