The Insolvency and Bankruptcy Code, 2016 (“IBC”) has been the talk of the business and legal world since its inception. It is touted as the primary reasons for India’s rise in the Ease of Doing Business ranking from 130 to 63 in the span of 5 years. Owing to its relationship to the economy and commerce, the government has been incredibly proactive in tweaking with yearly amendments. However, what has been lost is the certainty of the process that is a fundamental pillar of a strong insolvency resolution framework. The waters are further muddied by over-liberal feel-good addendums to matters of commerce that erode from the ambitious objects under the…
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SC Quashes Costs Imposed on SEBI by SAT Yet Again: Going in the Wrong Direction
The Hon’ble Supreme Court of India has set aside the order for imposition of costs of Rs. 50,000 by the Securities Appellate Tribunal (“SAT”) on the Securities and Exchange Board of India (“SEBI”) for imputing manipulative intent upon the Appellant, a trader, despite there being ‘no shred of evidence’ to conclude the same and letting its ex-parte order continue for a year without application of mind. SEBI, to secure such relief had argued that the imposition of costs would affect the effective, independent and fearless discharge of official duties imposed on it for protection of investors. History has repeated itself as under similar circumstances in 2012, SC had reversed costs…
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SEBI Proposes Pre-Deposit Appeals: What About Access to Justice?
In an attempt to tackle frivolous appeals, the Securities and Exchange Board of India (“SEBI”) has proposed the introduction of a mandatory deposit of 10% of the penalty imposed by it, before an appeal from its orders/directions can be sought before the Securities Appellate Tribunal (“SAT”). This requirement would also stand, mutatis mutandis, in cases where SEBI has ordered for refunds, recovery, disgorgement or compounding against an entity. In this article, the author explores the jurisprudence behind “pre-deposit appeals”, its interplay with the fundamental right to access of justice, and its propriety, when applied to the peculiar jurisdictional realities of SEBI. What is a Pre-Deposit Appeal? A pre-deposit appeal…
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NCLAT on Purchase of Minority Shareholding under Section 236 of the Companies Act, 2013
S. Gopakumar Nair & Anr. Vs. OBO Betttermann India Private Limited & Anr. Decided by the Hon’ble National Company Law Appellate Tribunal, New Delhi (Company Appeal (AT) No. 272/2018 – Decided on 09.07.2019) (Coram – Justice A.I.S. Cheema and Mr. Balvinder Singh) [Highlights: The provision of purchase of minority shareholding under Section 236 of the Companies Act, 2013 is only applicable to cases of an amalgamation, share exchange, conversion of securities or for other similar reasons, and not every case where 90% or more shareholding in a company is acquired. Second, valuation of shares for the purchase of minority shareholding under Section 236(2) must be done by a “registered valuer” and…
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IL&FS Securities Services Ltd. Vs. NSE Clearing & Ors. [SAT Order – 03.07.2019]
[Highlights: First, the Hon’ble Securities Appellate Tribunal has held that decisions of Clearing Corporations established under Section 8-A of the Securities Contract (Regulation) Act, 1956 are appealable under Section 23L of that Act. Second, it reiterated that SEBI has wide powers to consider an annulment of trades under Sections 11 & 11B of the SEBI Act, 1992. Third, an affected party has the right to apply for the modification of a SEBI order and SEBI cannot deny such party, seeking to protect its interests, an opportunity of being heard.] Decided by the Hon’ble Securities Appellate Tribunal, Mumbai – Appeal No. 262/2019 – Decided on 03.07.2019 (here) Facts of…
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Trade Dress Infringement: When Imitation is not Flattery
The Trade Marks Act (TMA) was introduced in 1999 for the registration of Trade Marks in India and mainly to provide for better protection of the trademark for goods and services preventing their fraudulent use. Trade Mark refers to a graphically representable mark capable of distinguishing a particular good or service distinctively which includes the shape of goods, their packaging and combination of colours, etc. Under section 2(q) of TMA, a ‘package’ further includes a case, box, container, covering, folder, receptacle, vessel, casket, bottle, wrapper, label, band, ticket, reel, frame, capsule, cap, lid, stopper and cork. This article seeks to analyse ‘trade dress’ as an intellectual property right, both in…
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Feb 12 to June 7 : Analysing RBI’s Prudential Framework for Resolution of Stressed Assets
After suffering a major setback in the case of Dharani Sugars and Chemicals Ltd. v. Union of India (“Dharani”) where its Feb 12 Circular was struck down, RBI has come back with a more prudent and humble framework under the “Reserve Bank of India (Prudential Framework for Resolution of Stressed Assets) Directions 2019” (“2019 Directions”), inter alia, choosing to abandon mandatory insolvency proceedings under the Insolvency and Bankruptcy Code, 2016 (“IBC”). This article seeks to make a thorough analysis of the new resolution framework under the 2019 Directions, comment on it and test it on the touchstone of Dharani. [We have analysed the Dharani Judgement at length, here. Furthermore, a thorough…
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Break-up of Dominant Enterprises: It’s Not Me, its You [Part II: Understanding the law of Breaks-ups]
The law of breakup of monopolies/dominant companies differs across jurisdictions. In this article, the Author analyses the law of breakups in the United States and India. In this series of articles, the author makes a holistic analysis of the concept of break-up/division of dominant enterprises/monopolies along with the jurisprudence on the subject. The other parts of this series can be found here: Part I –Understanding the Remedy of Break-up of Dominant Enterprises Part II – Understanding the Law of Break-ups 1. American Perspective Under Section 2 of the Sherman Antitrust Act, 1890 (“Sherman Act”) monopolization has been prohibited in its various forms. The Supreme Court of the United States of America…
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Break-up of Dominant Enterprises: It’s Not Me, its You [Part I: Understanding Break-ups]
Of late, there have been passionate political calls throughout the world to break-up the ‘big tech’ companies like Facebook, Amazon, Apple, etc. This is primarily because of the overwhelming power that these companies hold in their relevant markets and the near-monopolist advantage that these companies hold over the new entrants in their market. At the outset, this call purports to base itself on the touchstone of the principle of break-up of dominant/monopolistic companies and groups under competition/anti-trust laws. While some of the reservations presented under this call to break-up do raise some pertinent questions, while some of the allegations made against these companies are only clothed as competition concerns but…
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The Need for Context and Exemptions under the Insolvency and Bankruptcy Code, 2016
The Insolvency and Bankruptcy Code, 2016 (“IBC”) came at a time of great need for the Indian economy. It is argued that, at the time, Non-Performing Assets were on their way to crippling the Indian economy which would have had far-reaching implications on banks and the economy at large. However, ever since the IBC has come into the picture, far-reaching and substantial strides in the recovery and restructuring of dues have been made whether in the form of pre-admission settlements or the Corporate Insolvency Resolution Process (“CIRP”). Despite its successes, we have seen grave shortcoming under the IBC and the wake-up call with regard to this was seen in the…
