The Supreme Court of India recently revisited the law on schemes of amalgamation under Sections 391-394 of the Companies Act, 1956 in Sesa Industries v. Krishna Bajaj. The Supreme Court was concerned with a set of appeals by special leave from the judgment of a Division Bench of the Bombay High Court at Panaji. The Division Bench had set aside a judgment of a Single (Company) Judge sanctioning a...
Constitutional Challenge to IPAB and Copyright Board
Spicy IP reports that two writ petitions have been admitted by the Madras High Court challenging the constitutionality of the Intellectual Property Appellate Board (IPAB) [Shamnad Basheer v. Union of India] and the Copyright Board [SIMCA v. Union of India]. The challenge is based on separation of powers grounds; and if one were to apply the principles laid down by the Supreme Court in the NCLT...
Competition Commission decision on Bank Prepayment charges: The Meaning of ‘Agreement’
The Competition Commission of India has issued its order in Case No. 5/2009 (decision dated 2nd December 2010), Neeraj Malhotra v. Deutsche Post Bank Home Finance Ltd. and others. A copy of the majority (4-2) decision is available here. Two dissenting orders are available here and here. The decision and the dissents demonstrate divergent approaches over the meaning of the term ‘agreement’ for...
Some further thoughts on Iridium/Motorola: Deviating from Meridian?
As Mr. Umakanth discussed in this post, the Supreme Court of India in Iridium India Telecom v. Motorola Inc. (Criminal Appeal No. 688 of 2005, judgment dated October 20, 2010) has confirmed that companies can be prosecuted for offences involving mens rea. The Court in Iridium appears to have approved of the theory through which the intention of the directing mind and will of a company is...
UK Supreme Court on Non-Signatory Parties in Arbitration: Part II
(Continued from Part I which is available here) We can now briefly turn to the judgment of Lord Collins. Lord Collins elaborated the position on broadly similar reasoning. On the issue of the standard of review to be adopted, he observed, “The principle that a tribunal has jurisdiction to determine its own jurisdiction does not deal with, or still less answer, the question whether the...
UK Supreme Court on Non-signatory Parties in Arbitration: Part I
We have previously discussed issues surrounding privity in arbitration agreements; and in a recent post, Shantanu looked at a recent decision of the Supreme Court of India on the point which lays down the proposition that an award cannot be enforced against a party merely by virtue of its association with the matter or the parties involved (in the facts of the case, the ‘association’...
Software and Royalty: Further Controversies
In an earlier post, I had stated: “The judgment in TCS as also the subsequent decision of the ITAT in Sonata, (2007) 106 T.T.J. (ITAT) 797, make it abundantly clear that payments for shrink-wrapped software would not be chargeable to tax in India. V. Niranjan, in a recent article published in the Journal of Business Law describes the decision...
“Subject to contract” agreements and Good Faith
On the issue of when a contract is formed in the case of “subject to contract” agreements, the leading Indian contract law textbook notes that what needs to be determined is, “… whether the formal document is of such a nature that it was the very condition of the contract or whether it was commemorative of the evidence on the point…” (Pollock & Mulla, 12th edn., page...
Supreme Court on Powers of the Competition Appellate Tribunal: SAIL v. Jindal Steel
The Supreme Court of India has decided on the scope of the powers of the Competition Appellate Tribunal, in SAIL v. Jindal Steel. Reports of the decision are available on Legally India and Bar and Bench. We will carry a detailed analysis of the decision shortly. UPDATE: The judgment is now available on the JUDIS website – it can be downloaded through a date-wise search. The judgment...
Direct Taxes Code Bill, 2010 versus Income Tax Act, 1961: A Comparison of Certain Aspects
As noted in an earlier post, the Direct Taxes Code Bill has been introduced in Parliament. If enacted, it will come into force from 2012. Below is a comparative chart discussing the differences in the provisions in the current Act and in the Code Bill. The changes below are not exhaustive, and we will be discussing other aspects of the Code in subsequent posts. Point Current Treatment under...
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