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…
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Leniency Programme under the Competition Act: A Definitive Guide
The Competition Commission of India (“CCI”) is empowered, under Section 46 of the Competition Act, 2002, to grant lesser penalties to members of cartels where (i) they have made a full and true disclosure in respect of the alleged violations and (ii) this disclosure is sufficient to enable CCI to form a prima-facie opinion about the existence of a cartel or which helps to establish the contravention of the provisions of section 3 of the Act. 15 years after this provision was enacted along with the Competition Act, the first case under Section 46 was decided by CCI in 2017. This article seeks to set out the law behind the…
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Call for Articles: The CorpLexia Blog [Submissions on Rolling Basis]
About the Blog CorpLexia is a legal blog for the next generation of lawyers, professionals, academics and students focused on the realm of corporate, commercial, financial, insolvency, securities, arbitration and competition laws, who are energised by ambition and striving for perfection. Believing in the free discourse of knowledge, CorpLexia aims to break away from the hardwired practice of caging the very cutting edge of legal research and intellectual output in a close-ended journal, away from open and free access. We endeavour to put forth authoritative, inquisitive and well-researched publications that stand the test of our readers’ intellectual vigour. Theme Corporate, commercial, financial, insolvency, competition, securities, arbitration laws, etc. …
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SC Strikes Down RBI’s Feb 12 Insolvency Circular: Demystifying the Decision
A bench of the Hon’ble Supreme court of India comprising of Justices R. F. Nariman and Vineet Saran, in the case of Dharani Sugars and Chemicals Ltd. v. Union of India (“Dharani”) have invalidated the Reserve Bank of India’s (“RBI”) Circular titled ‘Resolution of Stressed Assets – Revised Framework’ (issued on 12.02.2018) (“Feb 12 Circular”) as being ultra vires the Banking Regulation Act, 1885 (“BR Act”) and the Reserve Bank of India Act, 1934 (“RBI Act”). This Circular had overhauled the Indian regime of stressed asset resolution and introduced the generic scheme of a resolution plan to be implemented within 180 days from the date of the default on the loan. Furthermore, where the…
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Section 15-J of the SEBI Act: SC Expands the AO’s Discretion in the Determination of Penalties
The Supreme Court of India in the Case of Adjudicating Officer, SEBI Vs. Bhavesh Pabari (“Bhavesh Pabari”)has given an expansive and harmonious interpretation to Section 15-J of the Securities and Exchange Board of India Act, 1992 (“SEBI Act”) holding that the factors enumerated under Section 15-J are not exhaustive but rather illustrative factors to be taken into account by the Adjudicating Officer (“AO”) while adjudging the quantum of penalty to be imposed under Section 15-I and that the AO may take note of other factors as well, in the same analysis. In Bhavesh Pabari, the Apex Court had also delved into the question of the conflict of application between Section 15-J and…
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The Banning of Unregulated Deposit Schemes Ordinance, 2019: Decoding the Law and Procedure
The Banning of Unregulated Deposit Schemes Ordinance, 2019 (“Ordinance”) has been promulgated by the Hon’ble President of India on 21st February 2019. The Ordinance comes as a substantial step to tackle unregulated and fraudulent deposit schemes in the country that have been able to abuse the Indian “mindset” of savings and their weakness for investment opportunities that sound too good to be true. This article sets out the law and practice under the BUDS Ordinance to elucidate the legal framework behind it. Background Deposit schemes and chit funds are not foreign or new concepts in India. Presently, there is a wide spectrum of deposit schemes, based around the basic premise of…
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SEBI’s Settlement Regulations 2018: Balancing Efficacy and Pragmatism
The Securities and Exchange Board of India (“SEBI”) has introduced the SEBI (Settlement Proceedings) Regulations, 2018 (“2018 Regulations”) to replace the extant SEBI (Settlement of Administrative and Civil Proceedings) Regulations, 2014 (“2014 Regulations”). The 2018 Regulations have have come into force from 1stJanuary 2019 and are meant to add to and evolve the SEBI’s settlement framework so as to improve the existing processes and also act as an enabler for ease of doing business in the growing securities market. This article seeks to analyze the substantial developments brought forth by the 2018 Regulations. Background SEBI had first put forth a consent mechanism for the settlement of offences under securities law in…
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Bombay HC: Criminal Proceedings not Precluded by Moratorium Under IBC
The Hon’ble High Court of Bombay in the case of Tayal Cotton (Pvt.) Ltd. Vs. State of Maharashtra has held that the moratorium stipulated under Section 14 of the Insolvency and Bankruptcy Code, 2016 (“Code”) does not bar the initiation or continuance of any criminal proceedings against the Corporate Debtor. This Article seeks to analyze the decision and set out the reasoning of the Hon’ble Court behind the same. Moratorium Order Explained Under the Code, where an application for the initiation of Corporate Insolvency Resolution Process (“CIRP”) is admitted by the NCLT, a moratorium order is affected with regard to the Corporate Debtor under Section 13 of the Code. Moreover, under Section…
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Sections 143A & 148 of the NI Act: A Definitive Analysis of the 2018 Amendment
The Negotiable Instruments Act, 1881 has played a substantial role in the Indian commercial landscape and has given rightful sanction against defaulters of the due process of trade who engage in disingenuous activites that causes unlawful losses to rightful recipients through cheque dishonour. The Act, being a pre-independence legislation, was enacted with the intent to define and amend the law relating to promissory notes, bills of exchange and cheques in India. Though the Act has been successful in introducing a substantial measure to tackle cases of cheque dishonours, pendency of cases, loopholes in the law, inadequacy of provisions and uncertainty of process have led to dwindling results in pursuing cases of…
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Supreme Court Re-iterates, Court Cannot Remand Matter Back to The Arbitral Tribunal Under Section 34
The Hon’ble Supreme Court of India has, in the case of Radha Chemicals v. Union of India held that in deciding a challenge to an arbitral award under Section 34 of the Arbitration and Conciliation Act, 1996 (“Act”), the Court has no jurisdiction to remand the matter back to the arbitral tribunal for “fresh consideration”. This buttresses the practices developed to this effect by various high courts that have many a times erroneously treated arbitral proceedings in the same manner as civil suits. Facts of the Case In this case, the Appellant, M/s Radha Chemicals was a supplier of goods to the Union of India. When the disputes arose, the Appellant…
