Ajit Warrier “Rules of procedure are not by themselves an end, but are a means to achieve the ends of justice, and the tools forged are not intended as hurdles to obstruct the pathway to justice…Procedure is meant to subserve and not rule the cause of justice.” – Justice, Courts and Delays by Arun Mohan, Senior Advocate. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 was widely hailed as a seminal legislation and a significant step towards enhancing India’s stature in the Ease of Doing Business index. The said Act was recently re-christened as ‘The […]

In this series, we try to assess the consequences of laws on the people they are intended for. How do laws, framed in Delhi, impact people in the corners of India? Do people understand laws framed for them? What is their impact on the targeted people? This is the sixth story on the intersection of law and society by Raksha Kumar. Reclaiming tribal land rights – one stone at a time Binary Prakash Kujur sat alone by the edge of a hill that overlooks the Badalkhol forests in Jashpur district of Chhattisgarh. “I come here to think. Strategise,” he said. Many people […]

Arush Khanna On July 23, 2018, the Parliament passed the Specific Relief (Amendment) Bill, 2018 (“Bill”). The Bill considerably strengthens the law on specific performance by making the provisions for relief more efficacious. The amendments are in line with the UNDROIT Principles of International Commercial Contracts and attempt to make India a business-savvy jurisdiction by improving its position on the enforceability of contracts. The key highlights of the Bill are discussed below: The ‘Rule’ rather than the ‘Exception’ Section 10 of the Bill substitutes the words “may, in the discussion of the court” with “shall be enforced by the court”. […]

Akshya & Kriti Chopra There are no prizes for guessing the most favoured destination for spending the summer vacations for most of us practicing in the courts of northern India. The hills in the Himalayan belt of our nation are a perfect get away spot from the hustle and bustle of the court. Another attractive feature of the hills is the adventure sports like trekking on offer. These activities give us a much-needed adrenaline rush, but unknowingly pose a threat to our lives. It is assumed and expected that a person with a sound mind and a healthy body, knowing […]

By Rishika Taneja The committee of experts appointed by the government under the leadership of Justice B. N. Srikrishna in its report has set the foundation for the data protection architecture of the second largest market of internet users in the world! This committee was appointed by the government in the wake of the challenges faced by the Aadhaar program in the Supreme Court. The committee has now submitted a draft bill establishing an omnibus privacy and data protection framework. The draft bill seeks to define the fundamental contours of the relationships between users and companies/Government entities which whom they […]

By Harini Subramani In a recent judgment, while upholding the legislative mandate for a time-bound completion of the insolvency resolution process under the Insolvency and Bankruptcy Code, 2016 (Code), the National Company Law Appellate Tribunal (NCLAT) has allowed some “free play in the joints”, by permitting the time spent to be excluded on matters which are beyond the control of parties. India’s overburdened judicial system and its tryst with timelines, has been an unhappy one. This begs the question, must the timeline for the completion of an insolvency resolution process under S.12 of the Code be cast in stone? The […]

Vishavjeet Chaudhary The last few incidents of lynching by mobs of people have sent shockwaves around the world. The situation is dreadfully distressing as it is chilling. According to some reports, this year alone has seen more than 25 incidents of mob lynching across India. In a Public Interest Litigation filed in the Supreme Court, the Court has laid down guidelines. Some of them include specialised ‘Nodal officers’ to ensure maintenance of law order. Additional surveillance of areas identified as sensitive has been directed. The Government is also mandated to announce on radios and other platforms that any mob violence […]

In this new series, Bar and Bench tries to assess the consequences of laws on the people they are intended for. How do laws, framed in Delhi, impact people in the corners of India? Do people understand the laws framed for them? What is their impact on the targeted people? Read the sixth story at the intersection of law and society here. Who will benefit from the latest proposed amendments to the RTI? Prime Minister Narendra Modi had famously said ‘na khaaunga, na khane dunga’ referring to how his administration would keep corruption at bay. Positioned against the multi-million dollar […]

Vikas Mahendra and Kaustav Saha Introduction The Arbitration and Conciliation Amendment Bill, 2018 seeks to make a number of significant changes to the Arbitration and Conciliation Act, 1996. The Bill has been introduced following the recommendations of a High-Level Committee constituted by the Central Government under the Chairmanship of Justice (Retd.) B. N. Srikrishna. The mandate of the Committee was, inter alia, to examine measures to strengthen arbitral institutions in India and suggest ways to improve the efficiency of the arbitral framework in India. The overall intent of the Bill is laudable, but the Bill itself has a generous mix […]

Abishek Jebaraj The Supreme Court of India will soon give its verdict in the challenge to Section 377 of the Indian Penal Code, which among other things, penalizes consensual same-sex relationships between adults. I have kept abreast of the case’s progress by reading published written arguments of the parties, through social media, and hearing very animated eyewitness testimonies of my colleagues at the Bar. With that caveat, this article throws up many crucial questions involved in the Section 377 case that reach far beyond the cause being espoused by the LGBTQ community. Can the legislature enact purely moral penal legislation? […]

By Vaibhav Gaggar The recent ordinance dated June 6, 2018, has brought about some crucial amendments to the existing Insolvency and Bankruptcy Act, 2016 (hereinafter referred to as the ‘Insolvency Code’). From a common man’s perspective, probably the most far-reaching and eagerly awaited amendment related to the provisions with respect to the rights of consumers in real estate projects. Being a hugely populist issue, by means of the amendment, the government has not only placed flat buyers in the bracket of ‘Financial Creditor’ as defined under the Insolvency Code, meaning thereby that they are to be treated as persons to […]

Vikas Dutta On January 2 this year, the Negotiable Instruments (Amendment) Bill, 2017 was introduced in Parliament and is currently pending before the Lok Sabha. This proposed amendment is an attempt to discourage delays caused by seeking trial and filing of appeals without merit. Many a time, such meritless challenges cause further financial constraints on a person who is seeking remedy against dishonoured cheques. To address these issues, there is a proposal to add two additional sections to the Negotiable Instruments Act, 1881. This article is an attempt to evaluate recent developments and the proposed amendments to the Act. Besides, […]

Rajesh Begur On January 31, 2018, the Delhi High Court delivered a landmark judgment in the area of commercial contracts by upholding an award of an arbitral tribunal made in Singapore in the commercial arbitration between the previous owners of Ranbaxy Laboratories Limited and the Japanese multi-national pharmaceutical company, Daiichi Sankyo Company Ltd. In this matter, the arbitral tribunal constituted under the International Chamber of Commerce had in the year 2016, ordered the previous owners of Ranbaxy, Malvinder Singh and Shivinder Singh (“Singh Brothers”) to pay Rs. 3500 crore to Daiichi in damages on grounds of fraudulent misrepresentation and concealment of material […]

Shantha Chellapa & Tara Ollapally Mediation Ordinance under the Commercial Courts Act The Commercial  Courts, Commercial Division and Commercial Appellate Division of High Court (Amendment) Ordinance of 2018, dated May 03, 2018, has inserted section 12A  to the Commercial Courts Act, 2015, contemplating pre-institution mediation and settlement, before the filing of any commercial disputes. Specifically, Section 12A (1) states that “a suit which does not contemplate any urgent relief under this Act,  shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation and settlement in accordance with such manner and procedure as may be prescribed by rules made by the central government”. The […]

A number of people staged a padayatra from the village of Pedapadu in Rayalaseema to the city of Kurnool on the morning of May 19. They were protesting against a Supreme Court judgment which had laid down that the police were duty-bound to investigate complaints made under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (PoA Act), before arresting the accused. Braving the scorching heat that radiated off the rocky outcrops dotting their path, they marched fifteen kilometers, protesting against the judgment delivered on March 20 this year by a Bench of Justices AK Goel and UU Lalit. The march […]

By Swaroop George The recent order dated May 4, 2018, of the National Company Law Tribunal at Kolkata, dealing with various applications in C.P.(IB) No.359/KB/2017 with regard to the Corporate Insolvency Resolution Process of Binani Cements has brought to light the plight of operational creditors and their lack of influence in the insolvency process. Once the Corporate Insolvency Resolution Process is initiated, the Interim Resolution Professional collects and verifies the claims of various debtors and constitutes a Committee of Creditors. The Committee of Creditors is the linchpin of the Corporate Insolvency Resolution Process and all major decisions are routed via […]

Ashish Kabra and Mohammad Kamran Highlights of the Amendment Minimum Value of dispute (pecuniary jurisdiction) reduced to INR 3,00,000/- Commercial courts split in two – (i) District Judge Level & Below District Judge Level Commercial Appellate Courts introduced Mandatory pre-institution mediation prescribed Government to appoint commercial court judges The Government, on May 3, 2018, promulgated an Ordinance (Ordinance) amending the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (Act). These amendments are an attempt to expand the scope of commercial courts in India. They will also contribute towards improving India’s ranking on the ‘ease of […]

By Shanmugham D Jayan A coherent and consistent ideology is the bedrock of a successful legal system. The success of a rule is nothing but acceptance of the ruler’s law by the subjects. From suo moto acceptance of fended subjects emerges the lasting sustenance of a particular rule. This acceptance is a direct function of the underlying ideology and its continued coherence. Take any modern Constitution. The attempted concept of division of powers has, to a great extent, ensured that judiciary determines what the essence of the underlying ideology of a given Constitution is. Any deviation by Constitutional courts, either […]

By Jolly Abraham Ultratech and Rajputana Properties were among the resolution applicants for Binani Cement. Based on evaluation criteria specified in a process document provided to all persons who had submitted an expression of interest to the resolution professional for Binani Cement (RP) and following the timelines specified in such process document, Rajputana Properties’ resolution plan was selected by the committee of creditors of Binani Cement (CoC) as H1 and Ultratech’s was not. Long after the date specified in the process documents as the last date for submission of resolution plans (Relevant Date) and after Rajputana Properties was declared H1, […]

By Aayush Mitruka One of the reasons why the Insolvency and Bankruptcy Code, 2016 (the Code) is being regarded as the path-breaking legislation is because unlike its predecessors it prescribes tight timelines for resolution of sick companies. The relevant provision of the Code provides that the resolution process must be completed within 180 days, which is extendable, in certain cases, up to 90 days. The stressed asset managers at financial firms as well as asset reconstruction specialists suggested the Bankruptcy Law Reform Committee that 180 days would be a reasonable time to evaluate a stressed entity and propose a solution […]

Pavan Narang Recently, the Delhi High Court, in its judgment titled Rajbhushan Omprakash Dixit v. UOI, referred to a larger Bench certain important questions of law that need to be settled. One of the questions referred is “Do the provisions of Chapter XII Cr.P.C. apply to Prevention of Money Laundering Act (PMLA) insofar as offences under PMLA are concerned and if so, to what extent?” Although it has been held in a spate of judgments that courts have powers to remand the accused arrested by officers of the Enforcement Directorate (ED) under PMLA, they have failed to address the more fundamental issue […]

By Aditya Swarup The past few months in India have witnessed the admission of insolvency petitions of some high value companies, including Essar Steel and Videocon Industries. Such companies may have assets in jurisdictions outside India and one of the crucial questions that arises is the treatment of these assets. The problem is attenuated by the nature of the assets in question. A company may operate in a foreign jurisdiction through local subsidiaries or branches/offices. It may also have physical assets in such foreign jurisdiction. In the former case, each subsidiary is a separate legal entity and the winding up/insolvency […]

By Nikita Chawla and Aashka Shah The Reserve Bank of India (“RBI”) on 12th March 2018, issued the Hedging of Commodity Price Risk and Freight Risk in Overseas Market (Reserve Bank) Directions, 2018 (“Commodity Hedging Directions”). These Commodity Hedging Directions revamp considerable portion of the present laws in relation to commodity derivative transactions being undertaken on a cross border basis. This also withdraws previous circulars issued by the regulator in relation to such commodity derivative transactions. Brief background The RBI has always followed a cautious approach in relation to commodity hedging. In 2003, RBI had permitted only those residents in […]

The Union Cabinet has cleared the Arbitration and Conciliation (Amendment) Bill 2018. It will now have to be put before Parliament. The Bill according to a Government press release, is meant to encourage institutional arbitration and provide for a robust Alternative Dispute Resolution (ADR) mechanism in India. An important feature of the Bill, is that it envisages the establishment of an independent body . . . Facebook Comment To read the entire article, get a premium account With a premium account you get: One year of unrestrcited access to previous interviews, columns and articles One year access to all archival […]

By Puneet Shah With the rising concerns over misuse of black money in financing illegal activities and with an objective to tackle the issue of benami properties, the recently enacted Companies Amendment Act, 2017 (Amendment Act) has introduced a new definition of term ‘beneficial interest’. Beneficial interest in shares of a company has been defined to mean right to exercise any or all rights attached to such shares; or right to receive or participate in any dividend or other distributions in respect of such shares. The idea seems to track the persons who are ultimately exercising rights over such shares […]

While the Supreme Court has, on more than one occasion, allowed settlement after admission of cases under the Insolvency and Bankruptcy Code, 2016 (IBC), it has done so with a caveat that the tribunals don’t have inherent powers to do so. The Supreme Court under Article 142 of the Constitution has the power to “pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.” But the NCLT and NCLAT don’t. The first time this question arose before the NCLAT, was in the case of Lokhandwala Kataria Construction, where the […]

By Kanwardeep Singh On 10 January 2018, nine (9) years after the Satyam scandal hit Indian Inc., Securities & Exchange Board of India (SEBI) has passed the Order pursuant to which a slew of directions have been issued against the global accountancy firm PW and its network entities in India. The directions, among others, include prohibiting PW and its network entities in India from issuing audit certificates to any listed company in India for a period of two years (prohibition not to be applicable to audit assignments that relate to the financial year 2017-2018). A substantial portion of the 108 […]

In the democratic process, Parliamentary Questions are important tools to hold ruling dispensations accountable for their policies. They also serve to bridge the gap between the common man and the government he might have helped elect, and are used to gauge the performance of a Member of Parliament. Quite often, Question Hour is the most interesting part of a Lok Sabha or Rajya Sabha session. But apart from providing entertainment, the first hour of a session also reveals important information on how the government aims to tackle the problems faced by the people. As the Winter Session of 2017 kicks […]

By Sakal Bhushan For invoking insolvency proceedings against a corporate debtor, an operational creditor is required to issue a notice of demand under Section 8(1) of the Insolvency and Bankruptcy Code, 2016 (IBC). Then under Section 8(2)(a) of IBC, the corporate debtor shall within 10 days of the receipt of that notice bring to the notice of the operational creditor “existence of dispute, if any, and record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute”. This portion of the statute was interpreted by the NCLAT in […]