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October 2018

Corporate Amicus: August 2018

by Anush Raajan Samad Ali Meghmala Mukherjee

India’s proposal to recognise cross border insolvency

Ministry of Corporate Affairs has invited suggestions on draft version of chapter on Cross Border Insolvency proposed to be included within the framework of Insolvency & Bankruptcy Code, 2016. Supreme Court in Macquarie Bank Limited v. Shilpi Cable Technologies Ltd. has also expanded the definition of ‘person’ to include persons residing outside India. At present Sections 234 and 235 of IBC provide for cross border operation of directions and orders of NCLT, though, these sections have not been notified. The first article in this issue of Corporate Amicus deliberates on various salient features of the proposed amendments, including amendments in definitions, and provisions for assistance to foreign representative and creditors, recognition of foreign insolvency proceedings, cooperation with foreign courts and concurrent proceedings. According to the author, the proposed amendment is not free from doubts or limitations, especially regarding the discretion vested in the NCLT...

 

Legal remedies available to home-buyers in India

With the enactment of RERA and subsequently, the amendment to the Insolvency and Bankruptcy Code, 2016 in 2018, aggrieved home-buyers in India now have access to even more fora for remedial actions. The second article in this issue of Corporate Amicus, attempts to analyze various provisions under these identified legislations and to show the best, or rather, the most accessible forum in such circumstances. Touching upon provisions of Consumer Protection Act, 1986, RERA and IBC, it states that IBC is not suitable to claim relief in most cases and can only be used by home-buyers as and when the concerned real estate company is in a bad financial position. According to the authors, till the adjudicating mechanism under RERA is established by each State Government, home-buyers and potential home-buyers are best served by seeking relief from the agencies under the CPA...

 

Notifications and Circulars

  • IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 amended to provide a model timeline for a corporate insolvency resolution process
  • Companies (Registration of Charges) Rules amended consequent to amendments in Section 82 of Companies Act
  • Companies (Appointment and Qualification of Directors) Rules amended to mandate annual KYC checks for all directors
  • Companies (Acceptance of Deposits) Rules amended to require eligible company intending to invite deposits to provide a certificate of statutory auditor
  • Overseas Investment Limits for Alternative Investment Funds/ Venture Capital Funds significantly enhanced
  • Filing of Term Sheet by angel funds
  • MCA committee to review penal provisions of Companies Act, 2013
  • Airport Economic Regulatory Authority of India (Amendment) Bill, 2018 introduced

 

Ratio decidendi

  • Director’s right to participate in board meeting through video-conferencing or other audio-visual means - Section 173(2) of Companies Act, 2013 – NCLAT
  • High Court stays NCLT Order in a revision petition filed under Article 227 – Andhra Pradesh and Telangana High Court
  • Insolvency - 'Promoter' cannot challenge rejection of Resolution Plan – NCLAT
  • Refusal to register transfer of shares can be permitted on the ground of violation of law or any other sufficient cause including conflict of interest in a given situation – Supreme Court

 

August, 2018/Issue-83 August, 2018/Issue-83

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