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The CAM Disputes team can be reached at cam.mumbai@cyrilshroff.com

Insolvency & Bankruptcy Code

Over the last few years, several cases of defaulting real estate companies, including major players like, Amrapali, Jaypee Infratech and Supertech, have been stuck at various stages of insolvency proceedings under the provisions of the Insolvency and Bankruptcy Code, 2016, as amended (“Code”). As per the data provided by Insolvency and Bankruptcy Board of India (“IBBI”), a total of 344 corporate debtors engaged in construction and real estate activities have been admitted into corporate insolvency resolution process (“CIRP”) as of September 2022.[i]Continue Reading Proposed Amendments to the Insolvency and Bankruptcy Code- A Real Solution For Real Estate Insolvencies?

Energy Conservation

The Energy Conservation Act, 2001, was amended with the Energy Conservation (Amendment) Act, 2022 (“Amendment Act”), recently. The amended Act received the President’s assent on December 19, 2022, and by way of a notification issued by the Ministry of Power, dated December 26, 2022, the amended Act along with all its provisions came into force on January 1, 2023. The amended Act has brought about some significant changes that are detailed hereunder:Continue Reading The Energy Conservation (Amendment) Act, 2022: Key Highlights

claim for refund of advance amount

Introduction

Since the enactment of the Insolvency and Bankruptcy Code, 2016, (“IBC”), the Indian judiciary has been facing numerous interpretational challenges on various provisions of the IBC. While certain challenges have been put to rest by introducing amendments to the legislation, a larger bunch of the issues have been settled by interpretations adopted by the judiciary. The Courts and Tribunals, in interpreting the provisions of the IBC, have aspired to achieve the objective of the IBC, i.e. maximising the value of assets of the corporate debtor.Continue Reading Is Claim for Refund of Advance an ‘Operational Debt’? SC Comes to Rescue

Liquidation Process

Introduction

The Insolvency and Bankruptcy Code, 2016 (“IBC”), an umbrella legislation, has successfully envisaged the process of speedy resolution or liquidation of a corporate entity and has proved to be a milestone in the Indian legal framework. By bringing IBC in force, the legislature has sought to maximise the value of the assets of the debtor, and to adopt a fair and transparent procedure for the disposition of the assets while balancing the interests of all stakeholders.Continue Reading Enforcement directorate under PMLA can no longer attach assets once liquidation process has been initiated under IBC

Product Liability

INTRODUCTION

‘Product Liability’ has been defined for the first time under the Consumer Protection Act, 2019 (“2019 Act”). As per the 2019 Act, product liability means the responsibility of a product manufacturer or product seller, or product service provider, to compensate for any harm caused to a consumer by a defective product manufactured or sold or by deficiency in services in relation to the product.[1]Continue Reading Product Liability under the Consumer Protection Act, 2019: An Overview

Duly Noted” Notice period for subsequent sale notice under Rule 8 and 9 of the Security Interest (Enforcement) Rules, 2002 relaxed by the Supreme Court.

Introduction

A three-judge bench of the Supreme Court, in S. Karthik & Ors. v. N. Subhash Chand Jain & Ors.[1](“S. Karthik”), recently relaxed the mandatory pre-requisites prescribed for sale of mortgaged assets under the Security Interest (Enforcement) Rules, 2002 (“The SI Rules”), under certain circumstances. It was held that when a sale notice under the SI Rules does not result in a sale due to reasons entirely attributable to the borrower, then the lender need not wait another 30 days before selling the mortgaged assets through a subsequent sale notice. This decision assumes significance as it is indicative of a lender friendly approach in monetising their security interests by adopting a flexible standard in interpreting the procedural prerequisites, rather than reading them pedantically. This blog examines the judgement in detail.Continue Reading “Duly Noted”: Notice period for subsequent sale notice under Rule 8 and 9 of the Security Interest (Enforcement) Rules, 2002 relaxed by the Supreme Court

Can an accused be granted exemption from personal appearance? -Understanding Section 205 and 317 of the code of Criminal Procedure, 1973

An essential principle of criminal law is that the trial of an offence should take place in the presence of the accused. This principle has been embodied in Section 273 of the Code of Criminal Procedure, 1973 (“CrPC”), which provides, as a general rule, that all evidence taken in the course of trial shall be taken in presence of the accused. While it cannot be denied that such a rule is mainly for the protection of the interest of the accused, CrPC has provisions allowing courts the discretion, in certain circumstances, to exempt an accused from personal appearance. However, exemption from personal appearance is not available to an accused as a matter of right; and is subject to the discretion of the Court.Continue Reading Can an accused be granted exemption from personal appearance? -Understanding Section 205 and 317 of the code of Criminal Procedure, 1973

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?

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

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