One of the age-old tenets of corporate law is the “proper plaintiff” rule laid down in the seminal case of Foss v Harbottle, (1843) 2 Hare 461. According to this rule, where a wrong has been done to a company, it is only the company and not an individual shareholder who may bring an action to seek redress. This represents a wholesome recognition of the separate legal personality of the company...
Bombay High Court Order in the Zee-Invesco Case: A Critical Analysis
Among the current wave of shareholder activism in Indian companies is the effort by Invesco, an investor in Zee Entertainment Enterprises Limited, to replace members of the board of directors of Zee, including to remove the company’s managing director and CEO. In September, Invesco, which holds 17.88% of Zee’s equity shares, requisitioned the board to call for an extraordinary general meeting...
Directors’ Liability and Climate Risk in India
Climate change has garnered significant attention given that it poses a serious challenge to sustainable development. No longer is it merely within the domain of voluntary conduct on the part of corporations. Instead, it is a material financial risk that corporations encounter, thereby imposing duties on the boards of directors of corporations to recognise and address climate risk. In “Directors’...
Recourse to Appropriate Proceedings against Personal Guarantor of Corporate Debtor
[Akansha Uboveja is a fifth-year B.A., LL.B. (Hons.), student at Hidayatullah National Law University, in Raipur] Recently, the National Company Law Appellate Tribunal (NCLAT) in Nitin Chandrakant Naik v. Sandhiya Industries LLP clarified the position of personal guarantors in corporate insolvency resolution proceedings (CRIP) initiated against a corporate debtor under the Insolvency and...
Retention of Title Clauses – An Indian Perspective
[Malavika Devaya is an associate at Poovayya & Co., Advocates & Solicitors.] A retention of title (ROT) clause is a provision that may be included in commercial contracts and purports to protect the seller’s interests by maintaining title to the goods with the seller until the occurrence of a future event, usually the receipt of payment. These clauses are, however, not very commonly...
Coverage of Future Misconduct under Oppression and Mismanagement
[Priya Garg is an Assistant Lecturer, OP Jindal Global University, Guest Faculty at NALSAR and Founding Trustee at The Corporate House and Saloni Kumari is a student research fellow at The Corporate House and law student at National Law University, Delhi] Recent corporate governance episodes have resulted in a greater invocation of the provisions under the Companies Act, 2013 (‘2013 Act’)...
The NCLAT Decision in Hystone Merchants: Conferring Unruly Discretion
[Shubhansh Thakur is a fourth-year student at the Symbiosis Law School, Noida. The author wants to thank Mr. Deepak Joshi for his comments on the draft version] The National Company Law Tribunal (“NCLAT”) in Hytone Merchants Pvt Ltd v. Satabadi Investments Consultants Pvt. Ltd. has held that the Adjudicating Authority (“AA”) can refuse to admit an application that is...
Judicial Misinterpretation of Scope of Sanctions in Scheme of Arrangement
[Vasu Aggarwal is a student at National Law School of India University. He is grateful to Prof. Rahul Singh for inspiring him to write on this topic, and thankful to Prof. Rahul Singh and Prof. Umakanth Varottil for their comments on the earlier drafts of this post] This post argues that courts have misinterpreted the scope of ex-ante sanction requirement for compromise and arrangement due to the...
Tax Deductibility in the Light of the New CSR Regime
[Shivani Pattnaik and Sourav Jena are undergraduate students at the National Law University, Odisha] Recently, the Ministry of Corporate Affairs (“MCA”) along with the Government of India has amended section 135 of the Companies Act, 2013 (“the Act”), thereby bringing upon significant changes to corporate social responsibility (“CSR”) regulations in India. After years of mandated CSR in the...
Initiation of CIRP against a Company in Liquidation: How Early is too Early?
[Subodh Asthana and Madhur Bhatt are 3rd year B.A., LL.B. (Hons.) students at Hidayatullah National Law University, Raipur.] Section 279 of the Companies Act 2013 [“Act”] envisages that no legal proceedings shall be admitted if the winding up petition of a company has been accepted by the court or the liquidation proceedings have begun. The article seeks to clarify whether an application to...
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