[Kamakshi Puri is a final year student at Jindal Global Law School] In a series of cases last year, a Supreme Court bench comprising Justice Dhananjaya Chandrachud and Justice Hemant Mehta delivered judgments on important aspects of insurance law. Oriental Insurance Company v Mahindra Construction, Life Insurance Corporation of India v Manish Gupta and Reliance Life Insurance Company Limited v...
Position of Third Party Security after Jaypee Infratech
[Ankesh Kumar is a IV Year student at NLIU Bhopal] Anuj Jain v Axis Bank Limited witnessed the Supreme Court ruling on two important matter in Indian insolvency law. As summarized in this post, while the Court set aside the transactions in question as being preferential within the meaning of section 43 of Insolvency and Bankruptcy Code, 2016 (IBC), it went on to decide that creditors taking third...
Crypto-Trading’s Tryst with Destiny
[Megha Mittal is an Associate with Vinod Kothari & Co.] Amidst apprehensions of crypto-trading being a highly volatile and risk-concentric venture, the Supreme Court, in its order dated 4 March 2020 observed that the Reserve Bank of India (RBI), a staunch critic of cryptocurrencies, failed to present any empirical evidence substantiating cryptocurrency’s negative impact on the banking and...
IBC Ordinance, 2019: Impleadment of Allottees in a Pending Application
[Pareekshit Bishnoi is an advocate based in Delhi] The President of India on 28 December 2019 promulgated the Insolvency and Bankruptcy Amendment (Ordinance) Act, 2019 (the “Ordinance”) to amend several provisions of the Insolvency and Bankruptcy Code, 2016 (the “Code”). Pertinently, section 3 of the Ordinance amended section 7 of the Code by adding three provisos to it. The provisos have limited...
Vacating Directorship in Companies: Examining a Fallacy
[Paras Ahuja is a third year law under-graduate at National law University, Jodhpur] Section 167(1) of the Companies Act, 2013 provides for several grounds that mandate directors of companies to vacate their office. Section 167(1)(a) provides for one such ground, wherein the office of the director shall become vacant if he is disqualified to be a director under section 164 of the Act. Under...
Price Gouging in the Age of Coronavirus: An Analysis of the Regulatory Strategies
[S.S. Shri Lakshmi is a 3rd year student at Hidayatullah National Law University, Raipur (HNLU)] Amidst all the panic caused by the current novel coronavirus (COVID-19), the international economy has suffered a beating. Factories across China have closed, bringing exports to a halt and oil stocks have plummeted due to a drastic cut in travel. At the same time however, specific industries have...
Call for Papers: SRDC ADR Magazine from GNLU
[Announcement on behalf of the GNLU Student Research Development Council] About SRDC The Student Research Development Council (‘SRDC’) was established in 2014 as a platform for students to engage in collaborative academic research and to foster discussion around contemporary research questions in law and allied disciplines. Objective of the SRDC ADR Magazine The ADR Student Research Group, under...
Liability of Key Personnel of Companies under the Indian Competition Law Regime
[Nishant Pande is a IV Year, BA LLB (Hons.) student at NALSAR University of Law, Hyderabad] Personnel at the helm of a company’s decision-making ought to act in furtherance of its best interests. Nevertheless, the actions taken in search of this best interest sometimes bring the company’s practices into the realm of the anti-competitive. To account for such transgressions on behalf of the key...
Call for Papers: NLSIU’s Indian Journal of Law & Technology
[Announcement on behalf of the Indian Journal of Law & Technology] The Indian Journal of Law & Technology (IJLT) is now accepting submissions for Volume 16. Please send in your submissions before April 15, 2020 in order for them to be considered. About the Journal The Indian Journal of Law and Technology (IJLT) is a student-edited, peer-reviewed, completely open access law journal...
Disqualification of Directors: Construing Retrospectivity
[Aditya Singh Chauhan is a B.A. LL.B (Hons.) student at the National Law University, Jodhpur] The Companies Act, 2013 (“Act”), under section 164(2)(a), provides for the disqualification of directors of a company in case they fail to file financial statements and annual returns for a period of at least three (3) consecutive financial years. The provision reads as follows: “No person who is or has...
No Stamp Duty or Registration Fees on Conversion from Public Company to Private Company: H.P. High Court
[Deepika Shori and Madhusudan Bose are Advocates at PRA Law Offices] Stamp duty is ordinarily payable on transfer of movable and immovable properties, and several other specified transactions under stamp duty law. Corporate transactions such as mergers, amalgamations, slump sales and the like are naturally liable to stamp duty because they involve transfer of properties between two entities...
MCA Clarifies on Legal Actions against Outside Directors
Recognizing the specific roles that different directors of a company play, section 149(12) of the Companies Act, 2013 contains a safe harbour provision that protects certain types of directors against liability. It relates to three types of directors, who are, for the sake of convenience, referred to as “outside” directors: (i) an independent director; (ii) a non-executive director who is not a...
Enforcing a Pledge over an Insurance Company’s Shares
A transfer of shares of an insurance company requires the prior approval of the Insurance Development and Regulatory Authority of India (IRDAI) in certain circumstances. Section 6A(4)(b)(iii) of the Insurance Act, 1938 provides: “(4) A public company as aforesaid which carries on life insurance business- … (b) shall not register any transfer of shares … (ii) where, after the transfer, the total...
Reverse CIRP: Reflections on NCLAT’s Legal Experimentation
[Ankit Tripathi is a practicing advocate before the Supreme Court and Delhi High Court and Ravleen Chhabra is a final year student at Institute of Law, Nirma University] A recent ruling of the National Company Law Appellate Tribunal (“NCLAT”) in Flat Buyers Association v. Umang Realtech Pvt. Ltd. comes as a game-changer. It not only affects the existing corporate insolvency resolution process...
Supreme Court Rules on Preferential Transactions in Insolvency
In Anuj Jain v. Axis Bank Limited (26 February 2020), the Supreme Court was concerned with the validity of certain transactions that the corporate debtor carried out in the run up to its insolvency. Briefly, the corporate debtor, Jaypee Infratech Limited (JIL), mortgaged some of its assets in favour of certain and banks and financial institutions for loans they advanced to JIL’s parent company...
Paper on Shareholder Stewardship in India
I have uploaded on SSRN a paper titled “Shareholder Stewardship in India: The Desiderata”, whose abstract is as follows: The goal of this paper is to examine whether the stewardship code, which emanated in circumstances that are specific to the United Kingdom (UK), is capable of transposition to other jurisdictions that experience different corporate structures as well as legal and institutional...
The Unenforceability of Arbitration Clauses in Insufficiently Stamped Documents: A Reaffirmation
[Anirban Chanda is a 4th year B.A., LL.B. (Hons.) student and Anujay Shrivastava a 5th Year B.A., LL.B. (Hons.) student, both at the Jindal Global Law School] It is a settled legal principle that a document containing an arbitration clause or an independent arbitration agreement which is insufficiently stamped is not enforceable in the Indian courts for arbitration under Part-I of the Arbitration...
Section 29A of the IBC: Stretched Too Far?
[Shruti Kunisetty is a III Year B.A. LL.B. (Hons.) student at the National Law School of India University, Bangalore] Section 29A of the Insolvency and Bankruptcy Code, 2016 (the “IBC”) bars certain entities from submitting a resolution application in insolvency proceedings. Broadly, there are four categories of entities that are barred under this provision: (i) ineligible persons, (ii) persons...
The Travails of Teaching ‘Offer’ and ‘Acceptance’ in Contract Law
[Shivprasad Swaminathan is Professor at Jindal Global Law School where he teaches Jurisprudence and Contract law] A Heuristic Nightmare For a discipline that has been variously described as ‘showing itself in a mask’ (as Jeremy Bentham put it) or full of ‘chameleon-hued’ expressions (as Wesley Hohfeld put it), the law holds no dearth of labyrinths and traps for the unsuspecting student. Yet few...
Resolving the Retrospective Application of the 2015 Amendment to the Arbitration Act
[Satyajit Bose is a 3rd Year student at the National Law School of India University, Bangalore] On 27 November 2019, the Supreme Court of India delivered its judgement in Hindustan Construction Co. Ltd. v. Union of India. In this case, a division bench of the Supreme Court was called upon to adjudicate on the constitutionality of section 87 of the Arbitration and Conciliation Act, 1996 [‘1996...
CIRP against Government Companies: Has Supreme Court Settled the Debate?
[Soumyajit Saha is a 3rd year B.A. LL.B student at National University of Study and Research in Law, Ranchi] Last year, in Harsh Pinge v. Hindustan Antibiotics Limited, the judicial member of the National Company Law Tribunal (NCLT), Mumbai Bench dismissed the petition filed under section 9 of Insolvency and Bankruptcy Code, 2016 (IBC). This was on the ground that corporate debtor, being a...
Reciprocity Requirements in India’s Adoption of the UNCITRAL Model Law on Cross Border Insolvency
[Soham Chakraborty is a II year, BA LLB (Hons.) student at NALSAR University of Law, Hyderabad] The corporate insolvency resolution process (CIRP) of Jet Airways was one of the first instances of cross border insolvency in India. In the case, the National Company Law Tribunal (NCLAT) enabled a Dutch Court Administrator appointed by the Noord District Court in Holland to participate in the...
Can a Sole Proprietorship Initiate Insolvency Proceedings under the IBC?
[Sahithi Uppalapati is a III Year, B.A.LLB (Hons.) student at NALSAR University of Law, Hyderabad] The recent decisions of various benches of the National Company Law Tribunal conflict on the issue of whether a sole proprietorship concern is covered under the term ‘person’ under section 3(23) of the Insolvency and Bankruptcy Code, 2016, which is determinative of who is entitled to initiate a...
Shareholder Ratification for Directors’ Breach of Duty
[Rajat Maloo is a III year B.A., LL.B. (Hons.) student at the National Law School of India University, Bangalore] Common law provides that those to whom duties are owed may release those who owe the duties from their legal obligations. In the corporate law context, this principle has been applied by courts in cases where shareholders ratified directors’ breaches of duties. However, various...
‘Apply and Explain’ – An Alternative Model of Corporate Governance
[Manasvin Andra is a III year student at NALSAR University of Law, Hyderabad] Corporate governance has emerged as one of India Inc.’s primary concerns since the time the Satyam scandal came to light. The incident – dubbed “India’s Enron” – has had a seismic effect on how businesses are regulated, and its effects have been felt most prominently in terms of how corporate governance norms are...
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