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November 2016

Corporate Amicus: August 2016

Article

Real Estate (Regulation and Development) Act, 2016 – A Comment

Real Estate (Regulation and Development) Act, 2016 has been promulgated with the objective of establishing institutional infrastructure to ensure that the real estate sector functions in an efficient and transparent manner and consumer interests are protected. The article in this issue of Amicus while commenting upon the efficacy of the Act in achieving its objectives, alludes to certain key issues which demand attention. Deliberating on certain issues relating to suo-moto enquiry that may be initiated by Real Estate Regulatory Authority; Advisory function of RERA; Registrations and consumer interests, the author is of the view that the efforts in formulating the Act shall be of no significance in absence of effective implementation. It is stated that a combined effort of various Ministries of the Government of India could be the way forward.

 

Notifications & Circulars

  • Companies (Share Capital and Debentures) Rules, 2014 amended – Changes include allowing defaulting companies to issue equity shares with differential rights and permitting start-ups to issue stock options to its specified promoters and to directors. Amendment has done away with the requirement of securities being fully paid up at the time of their preferential allotment. Further, companies issuing secured debentures have been permitted to create a charge or mortgage on properties or assets of its holding company or subsidiary or associate companies or otherwise.
  • Companies (Accounts) Rules, 2014 amended – Specified companies, meeting certain conditions, do not have to fulfill the requirements of preparing consolidated accounts.
  • Companies (Incorporation) Rules, 2014 amended - Natural person can neither be a member nor a nominee of more than a ‘one person company’. New Rule inserted specifying procedure for conversion of an unlimited liability company into a limited liability company by shares or guarantee.
  • Rupee denominated bonds to overseas investors – No need to comply with provisions of Chapter III of the Companies Act, 2013, dealing with public offer and private placement and Rule 18 of Companies (Share Capital and Debentures) Rules, 2014, regarding issue of secured debentures by an Indian entity.

 

Ratio decidendi

  • Restoration of name of company with Registrar of Companies, subject to compliance with requisite formalities – Delhi High Court
  • Environmental clearance - Fulfillment of requirement of public consultation, mandatory – Supreme Court directs post-decisional public consultation
  • Penalty imposable when benami transactions at time of IPO affect interests of others - Supreme Court
  • Withdrawal of public offer when not possible - SEBI

 

August, 2016/Issue-60 August, 2016/Issue-60

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