Lease and Rentals - Are these Operational Debt under the IBC

INTRODUCTION

The Insolvency and Bankruptcy Code, 2016 (‘Code’) recognises two types of debts — financial and operational– to enable the creditors to make an application for initiating insolvency proceedings against a corporate debtor. A financial creditor and an operational creditor can initiate a Corporate Insolvency Resolution Process (‘CIRP’) under Section 7 and Section 9 of the Code, respectively. If there is a debt, other than a financial debt or an operational debt, the creditor will not qualify to apply under Sections 7 or 9 of the Code, as the case may be. Therefore, it becomes important to determine the nature of debt/claim while considering the application of an admission under the Code. Continue Reading Lease and Rentals: Are these Operational Debt under the IBC?

How Much is Too Much - Supreme Court on Scope of Examination of Arbitration Agreement at Pre-Arbitral Stage

When faced with a suit or proceeding in any court or tribunal when there is an arbitration clause in the agreement, Section 8 of the Arbitration and Conciliation Act, 1996 (“Act”), empowers a judicial authority to refer parties to arbitration, thereby honouring the parties’ (pre-dispute) bargain. The Law Commission of India, in its 246th report, recommended amendments to Sections 8 and 11(6A)[1] of the Arbitration Act, with the intent to restrict the scope of judicial intervention at the pre-arbitral stage only to prima facie determine whether an arbitration agreement exists, thereby making it imperative for such judicial authority to refer the parties to arbitration, leaving the final determination of the existence and validity of an arbitration agreement to the arbitral tribunal under Section 16. Continue Reading How Much is Too Much? Supreme Court on Scope of Examination of Arbitration Agreement at Pre-Arbitral Stage

Withdrawal of resignation valid, until effected - Delhi High Court rules

The High Court of Delhi (“Delhi HC”) in its recent judgment in the case of Arjun Ahluwalia and Ors v Air India Limited[1] (“Arjun v Air India”) gave a ruling in favour of Air India’s pilots, who were seeking withdrawal of resignations and reinstatement of terminated employees. The Delhi HC passed a common judgment (“Judgment”) in the distinct writ petitions filed by pilots who are permanent employees (“PE”) and pilots working as full-time equivalent (“FTEs”)  under fixed term contracts  (collectively, “Employees” or “Petitioners”) as their petitions dealt with several common issues. The Judgment distils the principles applicable to resignations under service law and opines on the validity of financial constraint as a ground for termination of employees in State operated companies. Continue Reading Withdrawal of resignation valid, until effected – Delhi High Court rules

Model Tenancy Act - Revamping the existing rent control regime

The existing rent control and tenancy legislations in the country largely tilt in favour of the tenants. They inter alia involve stringent measures on the fixation of rent and long drawn legal challenges faced by the landowners in evicting tenants. For this reason, landowners are often apprehensive of letting out their vacant premises. This has resultantly affected the rental economy and the rental housing segment across the country, adversely impacting the availability of housing facilities and affordable rental accommodation in urban areas. Continue Reading Model Tenancy Act: Revamping the existing rent control regime

It’s settled Tenants are entitled to owners’ parking spaces

Often when units are given on leave and license basis to tenants, Co-operative Housing Society’s (CHS) prior approval is obtained, or intimation is provided, whichever is prevalent as per the bye-laws of the CHS. CHS’s however refrain from letting owners give their tenants a right to park in the car parking space appurtenant to such unit, to enable the CHS to rotate the car parking slots among its members only. Continue Reading It’s settled: Tenants are entitled to owners’ parking spaces

Karnataka High Court’s Judgment in Dreamz Infra India Limited v. Competent Authority - Yet another manifestation of primacy of the IBC

Since the introduction of the Insolvency and Bankruptcy Code, 2016 (“Code/IBC”), the courts and tribunals in India have had to constantly assess the application of the Code vis-à-vis other central and state legislations in light of the non-obstante clause under Section 238 of the Code.  The courts have time and again reiterated that the Code would have an overriding effect over other legislations to the extent of being repugnant  to the matters exhaustively dealt with under the Code. The courts have re-affirmed the primacy of the Code based on the premise that the IBC is a ‘complete and consolidated code in itself.’ For example, in Innoventive Industries Ltd. vs. ICICI Bank and Ors. (“Innoventive”), the Hon’ble Supreme Court upheld the primacy of the Code over the Maharashtra Relief Undertakings (Special Provisions) Act, 1958 and in Directorate of Enforcement vs. Manoj Kumar Agarwal & Ors (“Manoj Kumar Agarwal case”), the Hon’ble National Company Law Appellate Tribunal  (“NCLAT”) noted that the  provisions of the Code shall override the attachment of the properties of the Corporate Debtor under Sections 5 and 8 of the Prevention of Money Laundering Act, 2002.[1] Continue Reading Karnataka High Court’s Judgment in Dreamz Infra India Limited v. Competent Authority: Yet another manifestation of primacy of the IBC

Supreme court reiterates that courts DO not sit in appeal over an award passed by an arbitrator

INTRODUCTION:

Recently, in NTPC v. M/s Deconar Services Pvt. Ltd.[1], a three judge bench of the Supreme Court has, in line with the settled principle of minimum interference in arbitral awards, inter alia reiterated that in order to succeed in a challenge against an arbitral award, the party challenging the award must show that the arbitrator’s award suffered from perversity; or an error of law; or that the arbitrator had otherwise misconducted himself. The Court highlighted that merely showing that there is another reasonable interpretation or possible view on the basis of the material on record is insufficient to allow interference by the Court. Continue Reading Supreme Court Reiterates that Courts Do Not Sit in Appeal over an Award passed by an Arbitrator

Technicality or Trivialisation - SAT’s Attempt to Balance Interests of Justice

The Securities Appellate Tribunal (SAT) passed an order (Order)[1] recently, ruling that it is empowered to hear and decide appeals even in the absence of a Technical Member. The Order was prompted by an objection raised by the Securities and Exchange Board of India (SEBI) regarding the constitution of SAT’s Bench, in light of the earlier technical member of SAT having demitted office on March 31, 2021, and the ensuing vacancy of such office. Continue Reading Technicality or Trivialisation? SAT’s Attempt to Balance Interests of Justice

Development Manager as ‘Promoter’ under RERA regime - Deconstructing MahaRERA’s order in Shapoorjee Pallonji’s Case

1. INTRODUCTION

The Development Management Model (“Model”) has risen exponentially to meet the pace of growth and ensure expansion of real estate projects. The Model typically involves a Development Management Agreement (“DMA”) between a promoter and a development manager, wherein the latter is appointed for project execution, designing, marketing and sales of a project in consideration of a share of the revenue/profit or management fees. Continue Reading Development Manager as ‘Promoter’ under RERA regime: Deconstructing MahaRERA’s order in Shapoorjee Pallonji’s Case

FIG Paper (No. 7) - Cryptocurrency in India

Introduction:

In recent years, investments in cryptocurrencies have witnessed exponential growth, with growing recognition by established financial institutions across the globe and cryptocurrencies morphing from a digital payment method to an asset class for investment. Continue Reading FIG Paper (No. 7) – Cryptocurrency in India!