One-Sided-Contractual-Terms-Constitute-Unfair-Trade-Practice-Under-Consumer-Law-in-India

INTRODUCTION:

A three-judge bench of the Supreme Court, in Ireo Grace Realtech Pvt. Ltd. v. Abhishek Khanna and Ors.[1], has inter alia held that developers cannot compel apartment buyers to be bound by one-sided contractual terms. Finding such one-sided agreements oppressive, the Court has held that the same would constitute an unfair trade practice under the consumer laws in India. Continue Reading One-Sided Contractual Terms Constitute Unfair Trade Practice under Consumer Law in India

 

Serious Fraud Investigation Office – Keeping a close watch on frauds in India Inc

The Serious Fraud Investigation Office (‘SFIO’) is an organisation established under the aegis of the Ministry of Corporate Affairs (‘MCA’) – for investigation and prosecution of white-collar crimes. The SFIO was constituted in July 2003 following the recommendations of the Naresh Chandra Committee. In 2002, the Naresh Chandra Committee had recommended setting up a ‘Corporate Serious Fraud Office’, to uncover corporate fraud, and supervise prosecutions under various economic legislations. Continue Reading Serious Fraud Investigation Office – Keeping a close watch on frauds in India Inc

Minimum Interest Rates on loans to foreign WOS – Need for Review

Inter-corporate loans granted by a company are regulated under Section 186 of the Companies Act, 2013 (‘2013 Act’). One important pre-condition relates to the interest rate thresholds prescribed under sub-section (7). Section 186(7) of the Act states that – “No loan shall be given under this Section at a rate of interest lower than the prevailing yield of one-year, three-year, five-year or ten-year Government Security closest to the tenor of the loan.

Section 186(7) effectively prevents a company from giving an inter-corporate loan at a rate of interest lower than the prescribed thresholds, i.e. the prevailing yield of one-year, three-year, five-year or ten-year government security closest to the tenor of the loan. This leads to multiple practical difficulties, especially in situations where a holding company wishes to provide funds to its foreign wholly owned subsidiaries (‘WOS’). Continue Reading Minimum Interest Rates on loans to foreign WOS – Need for Review

Supreme Court Clarifies that Acceptance of a Conditional Offer with a Further Condition does not Result in a Concluded Contract.

Introduction

In M/s. Padia Timber Company (P) Ltd. v. The Board of Trustees of Vishakhapatnam Port Trust[1], the Supreme Court has reiterated that the acceptance of a conditional offer with a further condition does not result in a concluded contract. The Court has observed that when the acceptor attaches a new condition while accepting the contract already signed by the proposer, the contract is not complete until the proposer accepts the new condition.  Continue Reading Supreme Court Clarifies that Acceptance of a Conditional Offer with a Further Condition does not Result in a Concluded Contract

 

New CSR Regime – Is it too prescriptive

The Ministry of Corporate Affairs (‘MCA’) notified the amendments made to Section 135 of the Companies Act, 2013 (‘the Act’) – via the Companies (Amendment) Act, 2019, and the Companies (Amendment) Act, 2020, on January 22, 2021.

On the same day, the MCA also notified the Companies (Corporate Social Responsibility) Amendment Rules, 2021 (‘new CSR Rules’). These Rules have made significant changes to the regulatory framework governing the monitoring and evaluation of CSR activities, and the utilisation of CSR expenditure.

In this blog, we shall focus on the new CSR Rules, and examine its implications for India Inc. The implications of the changes made by the new CSR Rules are analyzed below. Continue Reading New CSR Regime – Is it too prescriptive?

Invoking Arbitration Agreements in Unstamped Documents – Course Correction from the Garware Wall Ropes’ Judgment 

 

What happened in the Garware Wall Ropes’ Judgment?

In our earlier article,[1] we had discussed the decision of the Supreme Court in Garware Wall Ropes Ltd. v. Coastal Marine Construction & Engineering Ltd. (“Garware Judgment”).[2] We had remarked that much was left to be done to strike a balance between arbitration law, stamping law and the equitable rights of litigants. We had analysed how the Garware Judgment took a narrow view on invoking arbitration agreements in unstamped documents, in holding that an arbitration could not be invoked in case of an arbitration agreement forming a part of an unstamped document, until the defect of non-stamping was rectified. It held that before proceeding under the Arbitration and Conciliation Act, 1996 (“Arbitration Act”), the Court ought to impound the document and send it for collection of stamp duty dues. This also meant that neither the parties, nor the Court could appoint an arbitrator till the requisite stamp duty was paid. Continue Reading Invoking Arbitration Agreements in Unstamped Documents – Course Correction from the Garware Wall Ropes’ Judgment

The PMLA – is the net cast too wide

The Prevention of Money Laundering Act, 2002 (‘PMLA’) has undergone multiple amendments after it was brought into operation on July 1, 2005. Most recently, the PMLA was amended through the –

  • Finance Act, 2015 (‘2015 Amendment’)
  • Finance Act, 2018 (‘2018 Amendment’)
  • Finance Act, 2019 (‘2019 Amendment’)

These amendments aimed to plug loopholes in the operation of the PMLA – to strengthen the framework for tackling money laundering. In furtherance of this objective, the 2019 Amendment has clarified the definition of “proceeds of crime” under Section 2(1)(u). Amendments were also made to Section 45, following the Supreme Court’s decision in the Nikesh Tarachand Shah[1] case – which struck down the pre-conditions for bail prescribed under Section 45(1). Over the years, the list of “scheduled offences” under Schedule I of the PMLA has also been amended significantly. Another aspect that arises in many PMLA proceedings is the admissibility of statements made to investigating officers. Continue Reading The PMLA – is the net cast too wide?

WRITS AGAINST ORDERS PASSED BY ARBITRAL TRIBUNALS – THE SUPREME COURT REITERATES THE LAW SMM

 Introduction

Recently, a three-judge bench of the Supreme Court in Bhaven Construction v. Executive Engineer Sardar Sarovar Narmada Nigam Ltd. and Anr[1] has observed that the High Courts’ power of interference under Articles 226[2] and 227[3] of the Constitution of India (“Constitution”), in the context of arbitral proceedings, may be exercised in ‘exceptional rarity’. Clarifying the term ‘exceptional rarity’, the Court pointed out that such interference would be warranted only in cases wherein a party is left remediless under the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) or clear bad faith is shown by one of the parties. Continue Reading Writs Against Orders Passed by Arbitral Tribunals – The Supreme Court Reiterates the Law

Time is of the essence for registration of a lease

INTRODUCTION

More often than not, the central procedural question on the minds of parties entering into a lease deed is whether the registration thereof is mandatory. This central query pervades the gamut of situations ranging from lease of residential to commercial properties, and from short-term to long-term leases.

The law governing registration of lease deeds is primarily contained in the Registration Act, 1908 (“Registration Act”) and the Transfer of Property Act, 1882 (“TOPA”). A lease of an immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised or of money, a share of crops, service or any other thing of value to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms as defined in Section 105 of TOPA. According to the Registration Act, ‘lease includes a counterpart, kabuliyat, an undertaking to cultivate or occupy, and an agreement to lease[1]’. Continue Reading Time is of the essence for registration of a lease

RBI’S REVISED REGULATORY FRAMEWORK FOR NBFCS

Introduction

In the backdrop of recent stress in the financial sector, especially in the speciality finance (i.e. NBFC) space, the Reserve Bank of India (“RBI”) has sought to address potential systemic risks by issuing a discussion paper on ‘Revised Regulatory Framework for NBFCs – A Scale-Based Approach’ (“Discussion Paper”) on January 22, 2021. The apex bank, through the Discussion Paper, has introduced a scale-based approach to the regulation of non-banking financial companies. Owing to their growing significance, linkages with the banking and capital markets sectors, and complexity in operations, the Discussion Paper proposes a four-tiered regulatory structure for NBFCs, based on proportionality of the NBFCs. Continue Reading RBI’s Revised Regulatory Framework for NBFCs : Industry Implications