E-Commerce In India: Regulatory Framework Update

E-commerce has picked up significant momentum over the past few years, owing to the ease and flexibility afforded to sellers and consumers alike, in comparison to the traditional brick and mortar stores. The convenience of e-commerce further accelerated due to the compulsions on account of Covid 19. In order to enhance the capabilities and realize the true potential of the e-commerce sector in India as well as mitigate and address the issues plaguing the sector, the Department Related ...

Supreme Court On CIRP Against Corporate Guarantors

Section 7 of Insolvency and Bankruptcy Code, 2016 (IBC) permits financial creditors to file application before NCLT upon occurrence of default for initiating Corporate Insolvency Resolution Process (CIRP) against a corporate debtor. Whether the corporate debtor under Section 7 of IBC would mean to include a corporate guarantor and whether such CIRP can be initiated only against corporate guarantor in respect of payment of the amount due where the principal borrower has defaulted has been a...

Uniform LSF Applicable On Reporting Delays Under FEMA

The Reserve Bank of India (RBI) for the first time introduced the concept of Late Submission Fee (LSF) vide its Notification No. FEMA 20(R)/2017-RB dated November 07, 2017 (RBI Notification), in respect of the Foreign Investment (FI) transactions undertaken on or after November 7, 2017. Thereafter, LSF was made applicable to the reporting delays concerning External Commercial Borrowings (ECB) vide RBI A.P. (DIR Series) Circular No. 17 dated January 16, 2019 (ECB Circular), and Overseas...

Analysis Of Priority Of Provident Fund Dues In Relation To A Company Undergoing CIRP

The Employees Provident Funds Miscellaneous Provisions Act, 1952 ("EPF Act") was enacted as a statute keeping in mind the Directive Principles of State Policy enshrined under Articles 38 and 43 of the Constitution of India to ensure social security for the employees working in an establishment. Whilst the EPF Act has an in-built mechanism to protect the interests of the employees from erring employers failing to pay their relevant contribution, priority of such dues assumes different dimension...

Admission Or Rejection: Powers Of The Adjudicating Authority

The National Company Law Tribunal ("NCLT") as the Adjudicating Authority under the Insolvency and Bankruptcy Code, 2016 ("the Code"), can admit or reject an application filed by a financial creditor to initiate a corporate insolvency resolution process ("CIRP") against a corporate debtor. In a September, 2022, decision of the National Company Law Appellate Tribunal, ("NCLAT"), New Delhi, in Ocean Deity Investment Holdings Limited, PCC v. Suraksha Asset Reconstruction Limited and Anr.[1],...

Can The Economic Interest Of Banks Be Equated With The Economic Interest Of India To Justify The Issuance Of LOCs?

On December 09, 2021, the Bombay High Court decided to tag and hear petitions inter alia challenging the constitutional validity of the Office Memoranda which governs the issuance of "Look Out Circulars" ("LOC"/ "LOCs") in India.[1] The substance of the challenge was that the right to travel abroad, being a fundamental right under Article 21 of the Constitution of India[2], cannot be curtailed through executive orders and that the economic interest of a bank cannot be equated with the...

Recovery Certificate Under Debt Recovery Act Is Not Limited To Winding Up Proceedings Only But Extends To IBC: Clarifies Supreme Court

Recently, the Supreme Court in the case of Kotak Mahinda Bank Limited vs A. Balakrishnan & another (Civil Appeal No.689 of 2021) has held that any liability arising out of a recovery certificate needs to be treated as financial debt within vis-à-vis clause (8) of Section 5 of the Insolvency and Bankruptcy Code, 2016[1] and the holder of recovery certificate would be a financial creditor within the meaning of clause (7) of Section 5 of IBC. As such, the holder of such a certificate...

Need For Improving Pharmaceutical Laws - The Proposed Way Forward

With the rising need to accommodate the new requirements and adaptation of modern technology in the pharmaceutical sector, the draft of the 'Drugs, Medical Devices and Cosmetics Bill, 2022' (the "Bill") has been released by the Ministry of Health and Family Welfare (MoHFW) on July 8, 2022, which seeks to replace the existing archaic law under the Drugs and Cosmetics Act of 1940 ("Act") and the Drugs and Cosmetic Rules 1945 ("Rules"). The process of review of the Act gained momentum in ...

DIN Must Be Mentioned On Financial Statements To Avoid Penalty

The Companies Act, 2013 (CA 2013) and rules made thereunder are drafted in such a manner that the compliances related to one subject matter are specified under different sections/rules. Accordingly, one section/rule may have a bearing on the other. Therefore, it is imperative that one should read CA 2013 and rules made thereunder holistically to avoid ignoring even the minutest compliances, which may lead to imposition of the penalty. One such compliance under CA 2013 relates to quoting...

A Preliminary Inquiry Under Section 340 Crpc: Mandatory Or Discretionary?

Section 195 of the Code of Criminal Procedure, 1973 ("CrPC") bars the court from taking cognizance of offences relating to contempt of lawful authority of public servants, except on a complaint in writing of the public servant concerned or of some other public servant to which he is administratively subordinate. The bar provided under Section 195 CrPC is not intended to take away the remedy against a crime but only to protect an innocent person against false or frivolous proceedings by a...

Whether Disputes Between Licensor And Licensee Concerning Recovery Of Security Deposit Can Be Referred To Arbitration?

The Bombay High Court in Bafna Motors Private Limited versus Amanulla Khan vide order dated 05th May 2022 passed in Arbitration Petition No. 340 of 2019 held that where the parties to a leave and license agreement are governed by Arbitration Agreement, disputes between licensor and licensee concerning recovery of the security deposit can be referred to arbitration. Brief Facts Leave & License Agreement dated 02nd July 2012 ("the Agreement") came to be executed between Bafna...

Stamp Duty Implications On An Order Sanctioning A Scheme Of Arrangement Within The National Capital Territory Of Delhi

The onset of the covid 19 pandemic has accelerated the merger and acquisition activity in India, with the year 2021 witnessing an all-time peak of finalization of 85 strategic deals valued over USD 75 million[1]. The jurisprudence behind mergers and demergers in India is a trite law and with the comprehensive mechanism envisaged under Chapter XV of the Companies Act, 2013, it is almost mechanical in most of the cases. The laws in India, dealing with levy of stamp duty dates to the...