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Contract – SC rules on when express term can be implied

24th November, 2017

The Supreme Court has held that a contract should be interpreted in accordance with the terms expressly provided in its agreement. A term can only be implied to be present in the contract if it is necessary to give efficacy to the business transaction. 
 
The Punjab State Electricity Board (PSEB) conducted a competitive...

Counter-guarantee is an independent contract, separate from its underlying contract

27th November 2017

The High Court of Delhi has held that a counter-guarantee is an independent contract, separate from its underlying contract. The Court upheld that the intentions of the parties were paramount to determining jurisdiction, and a mere omission of a technical term such as ‘only’ would not be enough to render the jurisdiction as non-excl...

Limitation Act not applicable for proceedings under IBC


The National Company Law Appellate Tribunal held that the Limitation Act, 1963 is not applicable to the Insolvency & Bankruptcy Code, 2016. NCLAT further held that debentures fall within the meaning of ‘Financial Debt’ irrespective of the amount of interest attached to them.
 
Contentions
The Appellant (Neelkanth Township and Constr...

Demerged resultant entity eligible to position itself as a ‘financial creditor’

 
Brief Overview
Financial Creditor (Reliance Commercial Finance Limited) made an application to the National Company Law Tribunal, Ahmedabad to initiate insolvency resolution process against Corporate Debtor (Anil Nutrients Limited) under Section 7 of the Insolvency and Bankruptcy Code. The Corporate Debtor had availed a term loan from the Financia...

Consolidated FDI Policy


The Department of Industrial Policy and Promotion (DIPP), Ministry of Commerce and Industry, Government of India has released the latest Consolidated FDI Policy, 2017 (FDI Policy 2017), effective from August 28, 2017. Some major changes reflected in the FDI Policy 2017 are outlined below:

Investment exceeding Rs. 5000 Crores - Previously, additio...

Pendency of winding up petition when not bars initiation of corporate insolvency process


6 June

Key points:

  • If a notice for winding-up is served to the corporate debtor/respondent company or if the application for winding-up is pending before the High Court and no order has been passed as on date: an application under Insolvency Bankruptcy Code, 2016 (IBC) can be filed with the National Company Law Tribunal (NCLT) wit...

Corporate insolvency proceedings can be initiated for dishonour of post-dated cheques


6 June

Key Points:

  • Issuance of post-dated cheques to any person will amount to acknowledgement of legally enforceable liability;
  • Dishonour of post-dated cheques would amount to “default” under the Insolvency and Bankruptcy Code, 2016 (“Code”) and can be used as a ground for initiation o...

RERA - Operative provisions notified


6 June

RERA is a legislation that has been formulated with a view to (i) protect the interest of the allottees by promoting transparency, accountability and efficiency in the construction and execution of real estate projects by promoters and (ii) establishing uniformity, standardization of business practices and transactions in the real estate sector.

Corporate Insolvency Resolution Process – NCLT clarifies scope of ‘operational debt’


6 June

Facts:

The National Company Law Tribunal (NCLT) has passed an order on dated 31-3-2017 interpreting the definitions of ‘operational creditor’ and ‘operational debt’ under the Insolvency and Bankruptcy Code, 2016 (Code).

NCLT rejected the application filed under Section...

FEMA violation not a valid defence against enforcement of foreign arbitral award


15th May 2017

Facts:

A petition was filed before the High Court of Delhi, by the Petitioner in the instant case, Cruz City 1 Mauritius Holdings (Cruz City), a company incorporated under the laws of Mauritius, to enforce an arbitral award rendered under the London Court of International Arbitration Rules (Award), with respect to a d...

Existence of “dispute” in terms of Insolvency Code bars initiation of insolvency process


11th May 2017

Key points

  • The definition of the word “dispute” is not exhaustive but illustrative. A corporate debtor has the right to reject a demand on any sustainable ground other than showing a pending suit, arbitration proceeding or the breach of representation or warranty. The sustainability of suc...

Listing date crucial in determining exemption from open offer obligations


8th May 2017

Key Points

  • It is irrelevant whether the same promoters were holding the same shares for over a long period either in the target company or in the parent company or both, prior to listing the target company. The only relevant factor is date of listing the target company and the promoter holding filed by the targe...

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