[Zacarias Kanjirath Joseph is a dispute resolution lawyer based in Bombay. He may be contacted at [email protected]. The views expressed in this piece are personal] A division bench of the Supreme Court of India in its judgment dated 8 May 2019 in Ssangyong Engineering & Construction Co. Ltd. v. National Highways Authority of India set aside an award of an arbitral tribunal, which...
Claims in Quantum Meruit vis-à-vis Damages in Breach of Contract
[Pulkit Khare and Vaidehi Soni are 4th Year B.A., LL.B. (Hons.) students of the National University of Advanced Legal Studies, Kochi] The Supreme Court recently in Mahanagar Telephone Nigam Ltd. (MTNL) v. Tata Communications Ltd. raised a question whether quasi-contractual obligations can be imported into a contract which already stipulates a sum for its breach. The case was brought about to...
Double Claim by a Creditor
[Richa Saraf is a Legal Advisor at Vinod Kothari & Co.] In Dr. Vishnu Kumar Agarwal v. Piramal Enterprises Ltd. (January 2019), the National Company Law Appellate Tribunal (NCLAT) held that multiple applications for initiation of corporate insolvency resolution process for the very same debt or claim is not permissible. Now, consider a situation where Company A (guarantor) has guaranteed the...
Corporate Insolvency and the Creditor-Guarantor Dilemma
[Akash Santosh Loya is a final year student of the 5-year B.A. LL.B. (Hons.) course at the National University of Advanced Legal Studies] Introduction There have been a number of decisions dealing with the rights of a creditor vis-à-vis guarantor under the Insolvency and Bankruptcy Code, 2016 (IBC). The adjudicating authorities have provided sufficient clarity on myriad issues ranging from...
Law of Best Efforts and Reasonable Efforts Obligations in Commercial Contracts
[Prabhakar Yadav is a third year B.A.LL.B. (Hons.) student at National Law School of India University, Bangalore] Introduction Commercial contracts impose absolute obligations on the parties to perform their part of the promise, the breach of which would result in contractual liabilities. However, in practice, the ability of the parties to deliver on their performance may be impacted due to...
Invocation of Unmatured Corporate Guarantee during Moratorium under Bankruptcy Law
[Himanshu Handa is an Associate with UKCA and Partners, a Law Firm in New Delhi] Introduction In Axis Bank Limited v Edu Smart Services Private Limited, the National Company Law Tribunal (“NCLT”), Delhi had rejected a plea from the financial creditor i.e. “Axis Bank” against the corporate guarantor i.e. Edu Smart in respect of its claim pertaining to a corporate guarantee in the insolvency...
Doctrine of Good Faith and Fair Dealing: Lacuna in Indian Contract Law
[Angad Singh Makkar is a 4th year BA LLB (Hons.) student at Jindal Global Law School in Sonipat, Haryana] Parties enjoying ample discretion to decide the ways of performance and enforceability of their mutual obligations is an inevitability within the realm of contract law.[1] And where there is discretion, there is an appreciable risk of it being exercised in a self-interested or opportunistic...
Inclusion of Non-signatory Third Parties in an Arbitration Proceeding
[Divyansha Agrawal is a B.A.LLB (Hons.) student at Jindal Global Law School] Introduction According to the principle of competence-competence, an arbitral tribunal in a given case has full authority to rule on its own jurisdiction. Articles 8 and 16 of the UNCITRAL Model Law re-affirm this principle. Article 16(3) of Model Law provides that the arbitral tribunal may rule on an...
Supreme Court’s Balanced Approach to Damages under Contract Law
[Anujay Shrivastava is a 4th Year B.A., LL.B. (Hons.) student at Jindal Global Law School, Sonipat] Section 73 of the Indian Contract Act, 1872 governs the compensation for damages arising from a breach of contract or failure to discharge obligations resembling those created by contract, while section 74 governs the compensation for damages where penalty is stipulated in the contract. In either...
Validity of Employment Bonds in India
[Apoorv Madan is a 4th year law student at Jindal Global Law School in Sonipat] Background Corporations often invest huge amounts of time and money in imparting training to their employees so as to gain competitive advantage. Regardless, the attrition rate continues to be significant. Several employees, after acquiring valuable skills, leave the organization for diverse reasons. Therefore, the...
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