Investor Or Creditor? – The SEBI V. IBC Battle

The Insolvency and Bankruptcy Code ("IBC") was introduced in India in order to consolidate laws relating to reorganisation and insolvency resolution. However, the revolutionary legislation has been at odds with some of the pre-existing or contemporary financial legislations such as the Prevention of Money Laundering Act, 2002 ("PMLA"), the Maharashtra Relief Undertakings (Special Provisions Act), 1958 the Real Estate (Regulation and Development) Act, 2016 and most recently the novice law...

Applications By Financial And Operational Creditors On The Basis Of Decrees Or Awards - Tracing The Evolution Of The Judicial Position

There cannot be any doubt about the fact that the Insolvency and Bankruptcy Code, 2016 ('the Code') has been a truly ground-breaking piece of legislation in the Indian judicial perspective. A rich body of precedents have already been laid down, in the short span of five years or so from the time the Code came into existence, by the judicial authorities, touching upon various issues that have emanated with regard to the interpretation of various provisions of the Code. However, certain...

Revisiting "Legally Enforceable Debt" & "Security" Under The Negotiable Instruments Act, 1881

In the recent judgment by the Hon'ble Supreme Court of India - Sunil Todi vs State of Gujarat[1], the Court rendered clarity inter-alia on whether the dishonour of cheque furnished as "security" would be covered under the provisions of Section 138 of the Negotiable Instruments Act, 1881 ("NIA"). This article highlights certain key aspects with respect to the principle of legally enforceable debt or other liability as per the Section 138 of the NIA in the light of judgments with...

Passing Of Resolution By Circulation By Directors

The term "resolution" has not been specifically defined under the Companies Act 2013 ("Act"). The "resolution" refers to formal decision of a meeting on a particular item placed before the meeting. Generally, resolutions are passed at a meeting but the Act also permits passing of resolutions by directors by circulation. Except for certain specified matters, Board resolution may be passed by circulation in all the matters. Requirements for passing of resolution by circulation: The ...

Predicate Offence: Myth Or Reality Under Prevention Of Money Laundering Act, 2002

To protect the economy of nations, it was felt internationally that the process of money laundering be made an offence and laws be made at the national level, by nations to curb this menace, identify the properties involved in money laundering, confiscate them and punish the offenders to create deterrence among others, thinking of indulging in same. In furtherance of the same, the political declaration & global programme of action adopted by the United Nations, General Assembly, by its...

India's Personal Data Protection Bill, 2019 - An Update

In December 2019, India's Ministry of Electronics, and Information Technology tabled the Personal Data Protection Bill, 2019 (the "PDP Bill") in the Lok Sabha. However, the PDP Bill, as drafted, raised several issues and challenges in implementing a robust data protection framework. In December 2020, the Parliament referred the PDP Bill to the Joint Parliamentary Committee (the "Committee"). The Committee had extensive hearings and tabled its report on the PDP Bill in both houses of...

Delhi High Court Affirms No Embargo To Appointment Of An Arbitrator In Multiple Cases Under A&C Act

In another recent judgment of the Delhi High Court in a petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 challenging the appointment of an Arbitrator, the High Court affirmed the settled law that there is no bar in appointment of an Arbitrator in multiple cases, if so warranted. In this case, the stand of Respondent was that since the disputes between the parties arising out of same contract are being adjudicated by the existing Arbitral Tribunal (AT) in which...

Social Media Platforms & Their Future under Proposed Data Protection Laws

On December 11, 2019, a Joint Parliamentary Committee on the Personal Data Protection Bill, 2019 ("JPC") was constituted with the goal to dissect and analyze the Personal Data Protection Bill, 2019 ("2019 Bill"). With one of its endeavours being to integrate the 2019 Bill into the fast-developing landscape of data, the JPC, in its report tabled before both houses of the Parliament on December 16, 2021[1] ("Report"), highlighted various lacunae that exist in the preexisting 2019 Bill, the...

Trade Dress Protection-Comparative Study Of The Global And Indian Position

What is a Trade Dress? Trade Dress refers to a product's visual appearance, such as packaging, form, and colour combination, that competitors can register or protect in terms of their company and services. It aids consumers in recognizing the product and distinguishing it from others; it also aids an illiterate consumer in distinguishing the goods based on their packaging. The United States was the first to recognize this notion. The new Trade Marks Act of 1999, which was primarily...

Termination Requirements Under New Shops And Establishments Act

These days, everyone is witnessing major reforms happening in Indian labour laws in order to replace the archaic regulations which does not fit in the current regime. One of such reforms is the enactment of new Shops and Establishments Act ("S&E Act") on the lines of Model Shops and Establishments (Regulation of Employment and Conditions of Service) Bill, 2016 ("Model S&E Act"). There were three major reasons behind introducing this Model S&E Act; first, it modernizes existing...

Indian Courts on Arbitration – 2021

In 2021, the Supreme Court of India and High Courts rendered decisions on various aspects of arbitration law. In their line of judgment, the courts continued the pro-arbitration and minimal interference trend. Courts ruled on international commercial and domestic disputes, including the arbitrability of disputes, party autonomy, the role of courts before and during arbitration and the challenge of arbitral awards.Towards the end of 2020, the Supreme Court in Vidya Drolia v. Durga Trading...

Whether Liquidated Damage Is Waived If Not Imposed In The First Instance

The most recent judgment of the Hon'ble Supreme Court, in the matter of Welspun Specialty Solutions Limited Vs. ONGC; reported as 2021 SCCOnline SC 1053 may stimulate rethinking in the manner of operation of liquidated damages clauses found in several contracts. In this case, the apex court finally upheld an award passed by a ld. sole arbitrator holding that ONGC was not entitled to recover liquidated damages having waived imposition of LD while granting first two extensions. I. ...