As per the scheme of the Insolvency and Bankruptcy Code, 2016 (“Code”), an application for initiation of corporate initiation resolution process (“CIRP”) can be filed by the debtor itself or by a financial or operational creditor. The Code provides for filing of record of default recorded with the Information Utility (“IU”) as evidence of default, along with other specified documents.
Continue Reading Proving default: IU reports not the be-all and end-all
In Part I of this series, we had discussed the ambiguities surrounding the rectification of non-compliances under the Companies Act, 2013 (“Act”). In Part II, we seek to address another critical aspect of the Act – the imposition of liability on a company’s officer for offences and non-compliances by the Company.[1]
Continue Reading Critiquing the Regulatory Threshold for an ‘Officer Who is in Default’ under the Companies Act, 2013
A criminal trial is nearing its conclusion. The evidence has been led, and witnesses examined and cross examined. Only the final arguments remain. Yet, for “the pursuit of truth”, would a “further investigation” be permissible at such a belated stage? In several judgments, the Hon’ble Supreme Court has answered this question in the affirmative, subject to there being compelling facts justifying such an extraordinary measure.
Continue Reading When Further Investigation Under Section 173(8) CRPC is Impermissible
The question of incorporation of arbitration clauses referred to in another document has been a bone of contention between parties, in view of the absence of statutory guidance under Section 7 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”). Although the principle of incorporating an arbitration clause, referred to in another document is a well-established principle in arbitral jurisprudence,[1] Section 7(5) only provides that the reference should be “such as to make that arbitration clause part of the contract”. Hence, it has been left to the courts to determine the conditions that need to be satisfied for the same.
Continue Reading Unlocking Arbitration Clauses: Incorporation by reference in digital contracts
The Supreme Court’s (“SC”) recent[1]interpretation of the intent and scope of Section 29A of the Arbitration and Conciliation Act, 1996 (“Act” or “Arbitration Act”) has sent ripples through the Indian arbitration landscape. In this landmark verdict, Justices Sanjiv Khanna and R. Mahadevan have provided much-needed clarity and guidance on the extension of time limits for arbitral awards beyond the stipulated timeframe under Section 29A of the Act.
Continue Reading Rohan Builders Judgment: A Watershed Moment in Indian Arbitration Law
The doctrine of severability dictates that the arbitration clause (arbitration agreement) is deemed to be separate or independent from the overarching contract. Therefore, even when a contract’s legality is challenged, the arbitration agreement remains unaffected. However, the novation of a contract, by way of a supplemental/amended agreement, raises an interesting question regarding the validity of the arbitration clause in the original agreement entered into between the parties, which resultantly stands amended or superseded. The issue about the extent to which the courts can intervene to determine this also requires judicial consideration.
Continue Reading Novation of Contract and Section 11 Of the Arbitration and Conciliation Act, 1996
The Ministry of Corporate Affairs (MCA) on September 9, 2024, amended Rule 25A of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 (effective from September 17, 2024), by introducing sub-rule 5. The amendment is intended to promote seamless mergers and amalgamations between a foreign holding company incorporated outside India and an Indian company, being a wholly-owned subsidiary company incorporated in India, i.e., an inbound cross-border reverse merger.
Continue Reading Flipping the Script on Reverse Mergers: Analysis of The Latest Amendment to Merger Rules
The recent ruling by the Supreme Court of India in Pam Developments Private Limited v. The State of West Bengal & Anr.[1] has reignited discussions on awarding pre-reference interest in arbitration proceedings. The case had arisen from a dispute over delays in a road construction project. Marking a significant development in the evolution of the Indian arbitration law, particularly on granting interest, the Court upheld the arbitrator’s authority to award interest on the awarded sum from the date of the cause of action until the date of the award, even when the contract was silent on the matter. While analysing the Pam Developments case, this blog delves into the nuances of pre-reference interest in light of the existing legal framework and relevant jurisprudence.
Continue Reading The Evolving Landscape of Pre-Reference Interest in Indian Arbitration Regime
Introduction of Section 29A to the Arbitration and Conciliation Act, 1996 (the “Act”), by way of an amendment in 2015, marked a significant event in the arbitration regime in India. It recognised the sluggishness that had crept into arbitration proceedings and provided for strict timelines for making of an award. The section was further amended in 2019, pursuant to recommendations of Justice B N Srikrishna committee.
Continue Reading Can an Arbitral Tribunal’s Mandate be Extended Post Award?
Offences such as cheating and criminal breach of trust are often invoked in Indian criminal law system. It is common practice that when a First Information Report (“FIR”) is registered under Section 406 of the Indian Penal Code, 1860 (“IPC”) (Section 316 of the Bhartiya Nyaya Sanhita, 2023 (“BNS”)) for criminal breach of trust, the same is also registered under Section 420 of IPC (Section 318 of BNS) for cheating. This practice is on account of a long-drawn confusion between the two offences, wherein the two are often equated and thus understood as offences with similar ingredients.
Continue Reading Criminal Breach of Trust vs. Cheating: Decoding the Confusion