Section 58(2) of the Companies Act, 2013 (“Act”), read along with its proviso, lays down that while the shares of a public company are freely transferable, any contract or arrangement entered into between two or more persons for the transfer of securities shall be enforceable as a contract.Continue Reading Can An Issuer Public Company Restrict the Transferability of Shares?
The saga of the insolvency resolution of Jet Airways India Limited (“Jet”), once India’s leading airline, has disappointingly culminated, after several twists and turns, in a liquidation order by the Hon’ble Supreme Court of India, in its judgment dated November 7, 2024[1] (“SC Judgment”). The SC came to this conclusion upon having found that the Jalan-Kalrock Consortium[2], the successful resolution applicant (“SRA”), had failed to implement the resolution plan as was approved by the Adjudicating Authority in 2021 (“Plan”).Continue Reading Jet, Set and Grounded – Supreme Court orders liquidation of Jet Airways
The Kolkata Bench of the National Company Law Tribunal (“NCLT”), on September 19, 2024, dismissed an application filed under Section 66 of the Companies Act, 2013 (“Companies Act”), in Philips India Limited[1] (the “Order”), on the grounds that Section 66 of the Companies Act cannot be invoked for capital reduction when the circumstances mentioned in Section 66(a) or 66(b) of the Companies Act are not met. The NCLT held that Section 66, which provides for reduction of share capital, cannot be used merely to provide liquidity or exit to minority shareholders, or to save on administrative costs. The Order attempts to justify the same on the grounds that the proposed share capital reduction was only incidental to the main objective of buy-back of shares.[2] However, this observation is in stark contrast to a catena of NCLT and National Company Law Appellate Tribunal (“NCLAT”) orders, as well as decisions of various High Courts that have time and again noted that a company may reduce its share capital in any manner as it deems fit, and courts have limited role in such schemes of capital reduction.Continue Reading Is the NCLT’s approach in the Philips India case too literal?
A cardinal principle of company law, incorporated in Section 67 of the Companies Act, 2013 (“the Act”), prohibits the purchase by the Company of its own securities for the protection of creditors. Section 68 is an exception to this general rule; hence, it starts with a non obstante clause laying down several conditions and restrictions for the companies undertaking a buy-back of its shares, primarily with a view to protect the creditors.Continue Reading Buy-back of shares: Will recent changes in the tax laws end the party?
In a recent case, the National Company Law Tribunal (“NCLT”) rejected a scheme of merger of three related entities on the ground that it was against public interest. Unlike the other cases of arrangements and schemes where the NCLT focused on the technical compliance of the provisions of the Companies Act, 2013 (“the Act”), in the instant case, the NCLT, in addition to analysing the scheme and verifying its satisfaction of the technical requirements, also went through the facts presented and the reports submitted by the Ministry of Corporate Affairs (“MCA”) and the Income Tax Department (“ITD”), who had carried out their separate investigations. The trend of recent decisions appears to show that the NCLT is not just mechanically sanctioning schemes of merger but is also going beyond the facts provided and reviewing them holistically.Continue Reading NCLT rejects a scheme of merger citing public interest concerns
The concept of avoidance of preferential transactions under Section 43 of the Insolvency & Bankruptcy Code, 2016 (“Code”), is based on the principle that insolvency is a collective scheme process and that the assets of a corporate debtor (“CD”) are distributed equitably in a liquidation scenario. During the twilight period of insolvency, paying off one creditor selectively can be disadvantageous to the interests of other stakeholders/creditors as transferring certain assets/monies diminishes the CD’s value. To reverse/avoid such preferential transactions, Section 43(1) of the Code empowers the resolution professional (“RP”) or the liquidator to approach the jurisdictional National Company Law Tribunal (“NCLT”). As per Section 43(2), a CD shall be deemed to have been given “preference” if the CD’s transfer of property benefits any creditor on account of any pre-existing debt owed by the CD and such a transfer puts the creditor into a beneficial position than it would have had the assets been distributed in a liquidation scenario. One of the two exclusions Section 43(3) lays down two exceptions from the trappings of the deeming fiction of preferential transactions one of them being “transfers made in the ordinary course of business or financial affairs of the corporate debtor or the transferee” (the “OCOB Exception”)[1].Continue Reading The “Ordinary Course of Business” exception in preferential transactions – Deciphering the interpretation methodology
Companies, as the business grows, operate through their subsidiaries for various reasons such as flexibility in operation of different units, expansion in different geographies, etc. While subsidiary is an entity over which the wholly owned subsidiary has control, the Companies Act, 2013 (“CA 2013”) recognises subsidiary companies as a separate legal entity.Continue Reading Holding-Subsidiary Relationship – Legal & Regulatory Architecture
In the judgment of Union of India and Another vs. Deloitte Haskins and Sells LLP & Another[1], the Supreme Court has enunciated and cleared the law pertaining to the removal and resignation of a statutory auditor vis-à-vis the proceedings initiated under Section 140(5) of the Companies Act, 2013 (“Act”). The Supreme Court upheld the constitutional validity of Section 140(5) of the Act and interpreted it as “neither discriminatory, arbitrary and/or violative of Articles 14, 19(1)(g) of the Constitution of India”. The Supreme Court clarified that the resignation of an auditor after filing an application under Section 140(5) of the Act does not automatically terminate the proceedings initiated under this Section.Continue Reading Supreme Court Sets the Bar Too High for the Statutory Auditors
The lack of a fixed time limit for adjudication of applications for proper stamp duty under the provisions of the Indian Stamp Act, 1899 (“Act”) often results in inordinate delays in stamping of instruments. In a judgment that will exponentially expedite the process of adjudication, the Delhi High Court (“Delhi HC”) has now opined that the Collector of Stamps shall communicate to the parties the proper stamp duty within 30 days of the date of the application.Continue Reading Application for Payment of Stamp Duty must be Adjudicated within 30 Days: Delhi High Court
Recently, the Supreme Court, in the case of Gaurav Agarwal vs CA Devang P. Sampat, has issued notice to the parties for adjudicating the crucial question of law pertaining to the ‘Period of Limitation’ for preferring an appeal under Section 61 of Insolvency and Bankruptcy Code, 2016 (“the Code”).Continue Reading Limitation under Section 61 of Insolvency and Bankruptcy Code: Too Strict Interpretation of the Law?