Section 42 of the Companies Act, 2013 read with Rule 14 of the Companies (Prospectus and Allotment of Securities) Rules, 2014 are substantive provisions for regulating private placements by Indian companies. These provisions are, of course, in addition to applicable regulations prescribed by the Securities and Exchange Board of India (“SEBI”) for listed companies. Recently, both Section 42 and Rule 14 have undergone amendments by way of the Companies (Amendment) Act, 2017 and the Companies (Prospectus and Allotment of Securities) Second Amendment Rules, 2018, respectively (the “Recent Amendments”). Continue Reading Recent Amendments to the Private Placement Guidelines – Revamp or Cosmetic?

The use of digital technology in the education sector is growing at a remarkable pace in India. With news reports giving Byju’s, a Bengaluru based learning app, a valuation of over USD 2 billion in its latest round of investments, the investors’ interest in the education technology (edtech) sector is on the rise. Continue Reading M&A Trends in the EdTech Sector

Share transfer restrictions come in various shapes and sizes and in so far as they relate to shares of public companies, their validity has been a topic of hot debate. In several cases, Indian courts have considered and opined on the legality of contractual restrictions on the transfer of shares of public companies. The position in this regard now appears to be much clearer than before with changes also being introduced in the Companies Act, 2013 (CA 2013). However, one aspect of this debate that has hitherto gained lesser traction is the ability of a public company to refuse registration of share transfers pursuant to section 58(4) of the CA 2013.

Section 58(2) of CA 2013 states that the securities of any member in a public company are freely transferable, while under section 58(4) of CA 2013, it is open to the public company to refuse registration of the transfer of securities for a ‘sufficient cause’. To that extent, section 58(4) of CA 2013 can be read as a limited restriction on the free transfer permitted under section 58(2) of CA 2013. However, the statute does not provide any guidance on what would constitute ‘sufficient cause’ and leaves it open to the company itself to ascertain the same. Continue Reading Share Transfers: Can the Company Say No?

The Specific Relief (Amendment) Act, 2018 (Amendment Act) was recently passed by both Houses of Parliament and subsequently received Presidential assent on 1 August 2018. Notification of the coming into force of the different provisions introduced by the Amendment Act is presently awaited.

The Specific Relief Act, 1963 (Act) codifies the law in relation to grant of the relief of specific performance[1] including injunctions. Continue Reading Specific Relief (Amendment) Act, 2018: Prospective or Retrospective?

On August 10, 2018, the Securities and Exchange Board of India (SEBI) published a report (Report) of the High Level Committee under the Chairmanship of Justice A. R. Dave (Retd.) (Committee). The Report has made recommendations to revamp the SEBI (Settlement of Administrative and Civil Proceedings) Regulations, 2014 (Regulations).

As and when amended, this will mark the fourth avatar of the consent process, first introduced by SEBI through a circular way back in 2007 (remodelled substantially in 2012) and then reincarnated as delegated legislation in 2014. The Report has taken into account SEBI’s experience with this mechanism in the past few years as well as evolving market trends.

Continue Reading Settling for a Price – The SEBI Consent Mechanism, Version 4.0

India’s anti-bribery and anti-corruption (ABAC) regime went through a massive change recently. After years of deliberation, the Indian parliament has enacted the Prevention of Corruption (Amendment) Act, 2018 (Amendment Act), bringing about crucial changes that could really impact the way companies do business in India. Below, we analyse the impact of the recent amendments and explain the measures that companies need to put in place to ensure compliance.

The amendments brought in by the Amendment Act are prospective in nature and take effect from the date the legislation received presidential assent – i.e. July 26, 2018. Hence, companies currently doing business in India need not retrospectively assess their compliance with the requirements introduced by the Amendment Act and shall only be regulated by these provisions prospectively.

Continue Reading Not Just Old Wine In A New Bottle: –Global Companies and the New Fortified Anti Bribery Regime

The Government of India and the Reserve Bank of India (RBI) have brought about several measures to resolve non-performing assets (NPAs). Several NPAs may have arisen from credit facilities that were sanctioned by banks as a commercial decision taken in good faith and in the ordinary course of conducting banking business. Equally there could be cases where NPAs arise as a result of siphoning of funds by the borrower or promoters or other connected entities.

Several serving and retired bankers have recently been charged and/or arrested on suspicion of criminal misconduct over alleged loan fraud under the Prevention of Corruption Act, 1988 (Principal Act). There have been instances of arrest of bank officials without any proof of quid pro quo or wrongdoings.

Continue Reading The Prevention of Corruption (Amendment) Act, 2013: Impact on Decision Making in Banks

By utilising its powers under Article 142 of the Indian Constitution, the Supreme Court of India has delivered an unprecedented decision on August 09, 2018 in Chitra Sharma & Ors. v. Union of India and Ors[1]., and other connected matters (the Jaypee / homebuyers Case)[2]. In this era of evolving jurisprudence on the Insolvency and Bankruptcy Code, 2016 (IBC), the Supreme Court, by this landmark decision, has settled some highly debated issues with respect to its implementation and has provided much required certainty. This has been achieved by the Supreme Court paving the way to reset the clock by re-commencing the Corporate Insolvency Resolution Process (CIRP).

Continue Reading Resetting the Clock: Supreme Court Sends Jaypee Infratech Limited Back to NCLT for CIRP

Drug price control has been a source of considerable agony to the pharmaceutical industry. Price caps on drugs, though flowing from a larger public interest perspective, has the power to throttle growth of the industry and limit availability of new life saving-drugs to the public at large. It is much to the chagrin of the major players and their business models. The Government has of course adopted the public comes first policy, which has also seen considerable support by the courts. Right or wrong depends on which side of the street one is on.

Price control as a measure has met with its fair share of challenges and is, as a policy issue, here to stay. Interpretation of price control regulations (DPCO) on the other hand is still a topic for many a contentious litigation before courts. The most recent one is a case where the Hon’ble Delhi High Court on July 17, 2018, passed a judgment in the case of Modi-MundiPharma Pvt. Ltd. v Union of India & Ors[1]. Here, the court opined that drugs developed through incremental innovation or a novel drug delivery system could only be included under the National List of Essential Medicines 2015 (NLEM) for the purpose of fixing the ceiling price, procurement etc. if they were explicitly listed. In other words, the court clarified on what kind of drugs are included.

Continue Reading To Regulate or Not To Regulate: DPCO 2013 and The Modi-Mundi Pharma Case

As anticipated in our last blog on this subject , solar cells continue to be at the heart of to-and-fro trade remedy measures being undertaken by various countries. The Government of India has fired the most recent salvo by notifying the imposition of safeguard duty on solar cells through the Department of Revenue, Ministry of Finance.

The termination of the anti-dumping investigation by the Directorate General of Anti-dumping and Allied Duties (DGAD) may have allowed a temporary sigh of relief to those rooting for exports. But that has been largely offset because of the safeguard duty investigation by the Directorate General of Safeguards (DGS).

The safeguard duty investigation was initiated based on a petition filed by the Indian Solar Manufacturers Association (ISMA) with the DGS requesting imposition of a safeguard duty on imported solar cells from China, Malaysia, Singapore and Taiwan.

Continue Reading Trade Remedy Measures Against Solar Cells: An Update