Monthly Archives

May 2021

adjudicating authority

How Does The Adjudicating Authority Approve The Resolution Plan?

By Corporate Law, Media Coverage No Comments

The Adjudicating Authority

A resolution plan is a proposal that aims to provide a resolution to the problem of the corporate debtor’s insolvency and its consequent inability to pay off debts. It needs to be approved by the committee of creditors (“COC”), and comply with mandatory requirements prescribed in IBC.

The Code (Insolvency and Bankruptcy Code, 2016) attempts to solve corporate debtors’ difficulties by putting them through a corporate insolvency resolution procedure (CIRP) and transferring them as going concerned to Resolution Applicants prepared to take over their management and assets and pay their obligations.

The CIRP is seen as a more beneficial alternative to liquidation, as a going concern is likely to fetch a higher value for the creditors than a simpliciter sale of its assets.

The market will determine the remedy. Interested resolution applicants can join the CIRP and submit “resolution plans,” which are mechanisms for taking over a corporate debtor, settling its creditors’ debts, and reviving and turning it around. The Adjudicating Authority/National Company Law Tribunal (“NCLT”) then reviews and approves the authorized plan, bringing the CIRP to a close.

While analyzing an authorized plan, the NCLT has limited powers and cannot intervene in a commercial decision made by the Committee of Creditors. When it comes to the Resolution plan’s approval, an adjudicating body must make a judgment in accordance with Section 31 of the Code.

It must go through the reasons to accept or reject one or more suggestions or objections, and it has the option of expressing its own judgment. As a matter of fact, now, the Committee of Creditors ought to record their reason when approving or rejecting one or another Resolution plans.

The Supreme Court has declared in Antanium Holdings Pte. Ltd. Vs. M/s. Sujana Universal Industries Limited, that the adjudicating authority is to record analytical subjective satisfaction which is a precondition before according approval to the Resolution Plan. In other words, the ‘Approval’ of ‘The Resolution Plan’ is to be judged with the utmost care, caution, circumspection, and diligence.

The threadbare examination of the scheme is to be studied astutely before arriving at a subjective satisfaction by the ‘Adjudicating Authority’.

The expression “subjective satisfaction” means the satisfaction of a reasonable man and it can be arrived at based on some material that satisfies a rational mind. It’s worth noting that a Resolution applicant can’t appeal the judgment of the Committee of Creditors (COC).

Given the legislative constraints of Section 30 of the Code, it is the COC that will approve or disapprove a resolution plan. An ‘Adjudicating Authority’ functions in a ‘Quasi-Judicial’ capacity and has the power to set the ‘Resolution Plan.’

 


Tags: adjudicating authority under ibc, adjudicating authority approval, adjudicating authority, approval of resolution plan, resolution plan approval, adjudicating authority under insolvency and bankruptcy code

new audit rules

Are The New Audit Rules by RBI a Benefit or Hindrance?

By Banking No Comments

New Audit Rules by RBI

The Reserve Bank of India (RBI) has stiffened the norms for the appointment and functioning of auditors in commercial banks and non-bank financial companies (NBFC). Time and again the role of auditors has been questioned whenever bank frauds have happened in the past including the infamous PNB scam, YES Bank, IL&FS, and DHFL episodes.

The irregularities, in most cases, happened over years, and if experts are to be believed auditors have played a huge role in such scams. 

Need for New Law

The central bank’s new restrictions are the outcome of a few giant enterprises monopolizing their industries. There are numerous new businesses with immense promise, yet the old businesses continue to dominate. The new RBI guidelines will assist fledgling businesses, and there will be no shortage of corporations willing to take on the responsibility.

The new standards were necessary to ensure the auditors’ independence, because, according to experts, if one business works with a bank for numerous years owing to a tight relationship, the firm’s impartiality will be jeopardized.

In the words of Mr. Nihar Jambusaria, President of the Institute of Chartered Accountants of India (ICAI), “Our ethical standards talk about acquaintance threat and the new norms seek to address that. If you work for the same client for a long time, due to acquaintance your independence can be impacted. ”

Guidelines for Appointment of Statutory Central Auditors (SCAs)/Statutory Auditors (SAs) of Commercial Banks (excluding RRBs), UCBs, and NBFCs (including HFCs)

The RBI guidelines primarily focus on critical topics such as auditor appointment procedures, tenure, eligibility, and independence, among other things. For the financial year 2021-22, the new norms will apply to Commercial Banks, Urban Cooperative Banks (UCBs), and NBFCs, including home financing businesses.

Non-deposit-taking NBFCs with assets under Rs 1,000 crore, on the other hand, have the option of continuing with their current method. UCBs and NBFCs will have enough time to implement these rules starting in H2 (second half) of FY 2021-22 to avoid any interruption. Commercial Banks and UCBs will be required to take prior approval of RBI for the appointment or reappointment of SCAs/SAs on an annual basis in terms of the above-mentioned statutory provisions. 

They must apply to the Department of Supervision of the RBI for this before July 31 of the reference year. While NBFCs are not required to seek RBI clearance before appointing SCAs/SAs, all NBFCs must notify RBI of SCA/SA appointments for each year via a certificate in Form A within one month of the appointment.

Number of the Audit firm that can be Appointed

According to RBI rules, for entities with an asset size of Rs 15,000 crore and above as of the end of the previous year, the statutory audit should be conducted under a joint audit of a minimum of two audit firms.

All other entities should appoint a minimum of one audit firm for conducting the statutory audits. It should be ensured that joint auditors of the entity do not have any common partners and they are not under the same network of audit firms

Number of Auditors

If the asset size of the entity is up to Rs 5 lakh crore, a maximum number of auditors can be four, for firms with asset size between Rs 5 lakh crore to Rs 10 lakh crore. The maximum number can be 6, for entities with asset size above that. Up to Rs 20 lakh crore maximum number of auditors can be up to eight and for those above Rs 20 lakh crore, the number of auditors should be 12.

New Norms on Eligibility, Empanelment, And Selection of Auditors in PSBs

PSBs need to allow the top 20 branches to SCAs in such a manner as to cover a minimum of 15 percent of the total gross advances of the bank by SCAs. For other entities, SCAs/SAs shall visit and audit at least the top 20 branches and the top 20 percent of the branches of the entities.

In order to be selected for the level of outstanding advances, in such a manner as to cover a minimum of 15 percent of the total gross advances of the entities.

Tenure of Auditors

The RBI stated that organizations must appoint SCAs/SAs for a continuous period of three years to ensure the independence of auditors/audit firms. Furthermore, throughout the aforesaid time, commercial banks and UCBs can only dismiss audit companies with the prior consent of the RBI’s concerned office.

According to RBI rules, an audit firm would not be eligible for reappointment in the same entity for six years after completion of full or part of one term of the audit tenure. However, audit firms can continue to undertake the statutory audit of other entities.

 Pros and Cons of the New Guidelines and Their Effect on the Industry

The Reserve Bank’s new auditor requirements will assist enhance overall audit quality and clarity, eliminate conflicts of interest, and assure auditor independence, all of which will contribute to financial stability.

On the flip side, the RBI standards may force auditors to quit in the middle of their contracts, which would break earlier agreements and destabilize the business. Investors, particularly FPIs, OCBs, MFs, and other institutions, will not look favorably on a change in auditors in the middle of the year.

The country’s reputation in the worldwide market would also suffer as a result of this. The Reserve Bank of India’s three-year period is relatively short, while the minimum contract duration for non-compliance with company law is five years.

CONCLUSION

As with all initiatives, the RBI’s new guidelines were greeted with enthusiasm by some and scorned by others. The new principles will improve audit standards while increasing the openness and independence of auditors. The Reserve Bank of India’s rules should be viewed as a new step toward establishing openness and confidence.

As a result of the new legislation, management will have to devote time to hiring new auditors who are familiar with the operation of NBFCs and financial institutions. However, everyone is finding it difficult to accomplish this in the current budget year. The contract will undergo several revisions, which is the industry’s biggest difficulty.

The RBI may consider deferring the circular’s implementation for at least two years to give the sector time to review and prepare for it, according to the industry association, which also proposed that a phased operationalization would help minimize immediate disruption. 

 


Tags: partnership audit rules, new partnership audit rules, new audit rules, partnership tax audit rules, partnership tax audit, partnership audit

legal lens

TRUST – Through The Legal Lens

By Media Coverage No Comments

Trust Through The Legal Lens

Trust is an arrangement whereby a person holds property as its nominal owner for good of one or more beneficiaries. We can see many trusts working for different purposes. But are they liable for the paying of tax while working? Does the creation of trust become the device of tax evasion? The answer is No, that is not the case.

The income tax appeal tribunal (ITAT) in Delhi ruled on this. The trust’s legitimacy is discussed in the decision. Second, trust is used to store treasuries and stock. Finally, under the provisions of sections 160 to 166 of the Income-tax Act of 1961, its income is taxed as a representative of the beneficiary or beneficiaries (IT act ).

The trust cannot escape the tax, according to the ruling, and the trust will have the same tax responsibilities and exemptions as the beneficiaries. Escort benefit and welfare trust vs. ITO was the lawsuit that resulted in this decision. The following are the details of the case.

A trust called the escort benefit and welfare trust was founded on February 14, 2012. A trust deed was used to establish it. The Escort benefit and welfare trust’s sole beneficiary and management was the corporation Escort. The trust’s first gift was $10,000, which was made by its three trustees.

Three companies amalgamated into Escort limited. Through this merger, it was decided that the shares of all the companies were to be transferred to Escort benefit and welfare trust, for giving the benefit to the Escort limited and its successor. 

The Escort benefit and welfare trust generated a large amount of money in the fiscal year 2016-17, with an income of over Rs 4,47,60,037. Escort Limited paid the dividend distribution tax under section 115-o of the Income Tax Act.

However, Escort’s claim of exemption under section 10(34) of the IT Act was restricted. Since the settlor and the beneficiary were the same in the case of Escort benefit and welfare trust, the assessing officer found out and claimed that the trust, in this case, is itself valid, under the Indian trust act 1882. 

Furthermore, the assessing officer discovered that, though a few trustees were chosen for this trust, they did not have any discretion, and therefore it was determined that the beneficiary, Escort Limited, was acting as a trustee to the Escort benefit and welfare trust.

The exemption was not granted to the Escort benefit and welfare trust and it was helped that the trust was only created to get an exemption from the taxpaying. And further assessor ordered Escort benefit and welfare trust to pay the tax over the dividend income that they have as the income from the other source under section 56 of the IT act.

 Thereafter, the Escort benefit and welfare trust filed an appeal with the commissioner of income tax (appeals), i.e. CIT (A). Escort benefit and welfare trust is not a genuine and properly created trust, and therefore cannot be taxed as a representative assessee, according to the commissioner of income tax (appeals). It will be held as an association of the people.

The ITAT overturned the commissioner of income tax (appeals) judgment, ruling that the Escort benefit and welfare trust is a legal trust. Since the trust legislation makes no reference to the settlor and single beneficiary being the same person. And also the exemption in taxes under section 10(34) was also granted to the Escort benefit and welfare trust. 

 


Tags: tax fraud, tax evasion and tax avoidance, income tax appeal tribunal, tax evasion, creation of trust, income tax appellate tribunal, tax evasion penalties, income tax evasion, legal lens, tax evasion and avoidance, income tax fraud

bitcoin technology and legality

Critically Analyzing The Bitcoin Technology and Legality in India

By Banking, Media Coverage No Comments

Analysis of The Bitcoin Technology and Legality in India

From bartering to cash to digital payments to cryptocurrencies, the financial industry has evolved through time. In 2009, Satoshi Nakamoto, a mysterious and pseudonymous figure, is said to have invented digital money. Surprisingly, the identity of the person or group of people who devised this technique is still unknown.

Bitcoins are significantly simplified by mining, in which a ‘miner’ utilizes his computer ability to solve computationally challenging riddles that are crucial to blockchain technology, therefore assisting in the maintenance of the entire system of blockchains and earning fresh bitcoins as a reward.

Nevertheless, the most common method of purchasing a bitcoin is to use a bitcoin exchange to swap actual money for bitcoins, which are then held in an online bitcoin wallet in digital form. Another option is to accept bitcoins in exchange for selling products and services.

Furthermore, Bitcoin promises lower transaction fees than other traditional online payment methods and is operated by a decentralized authority by virtue of its intangible form, the balances are only kept on a public transparent ledger that everyone has access to, therefore it is a more lucrative currency alternative.

The bitcoin system is made up of a group of machines that execute the bitcoin code and store the blockchain. In simple words, a blockchain may be thought of as a collection of blocks, each of which is a collection of transactions with an identical list of transactions on each system. As the transactions are done in real-time, whether they have a computer running Bitcoin or not, abusing the system is quite unlikely.

Somebody would have to control 51 percent of the computing power that makes up bitcoin to scam the system. However, if a cheat assault is likely to occur, bitcoin miners (computer users that participate in the bitcoin network) would most likely split to a different blockchain, rendering the invader’s efforts worthless.

Nonetheless, bitcoins cannot be used to purchase products or services in India, and only a few firms accept bitcoins instead of actual cash for the sale of the goods and services they provide. Individual bitcoins are not valued as commodities since they are not issued or backed by any banks or governments. Bitcoin transactions are not currently guaranteed by any banks, and no central body in India has sanctioned or regulated them.

There are no established norms, laws, or standards for addressing disputes that may occur while dealing with bitcoins. As a result, these bitcoin transactions have their own set of hazards. Given this context, it is impossible to conclude that bitcoins are unlawful, given no ban has been enforced on bitcoins in India. 

 


Tags: bitcoin legality in india, bitcoin technology and legality, analysis of bitcoin and legality, digital payments, analyzing Bitcoin Technology

land acquisition in india

Impact of The Judgment on Land Acquisition Proceedings in India

By Labour & Employment, Media Coverage No Comments

Impact of The Judgment on Land Acquisition in India

It is widely perceived that the Indian state holds the right of “eminent domain,” which refers to the sovereign’s capacity to acquire private immovable property for public use, provided that the nature of the public purpose can be established beyond a reasonable doubt, and that the owner of such property receives fair and equitable compensation.

The most essential component of land acquisition jurisprudence in India is the payment of fair compensation to the landowners in exchange for the state’s expropriation of their land for public use.

In its March 6, 2020, verdict in the Indore Development Authority v Manoharlal & Ors., a five-judge constitution bench of the Apex Court decided that land acquisition proceedings would not expire if the state has unconditionally provided appropriate compensation.

The bench also clarified that if a person was offered compensation but refused to accept it, he cannot claim lapse of acquisition due to non-performance of payment or non-deposit of compensation.

Furthermore, once the state makes an award and publishes a memorandum, the landowner loses title to the property, and Section 24(2) of the new land acquisition legislation prohibits landowners from reopening settled cases, reviving time-barred claims, or challenging the legitimacy of ended processes.

The Court stated – “Overruling all precedents and resolving the ambiguity relating to the interpretation of Section 24(2) of the New LA Act, the bench held that the word ‘or’ used in Section 24(2), should be read as ‘nor’ or as ‘and’. Since Section 24(2) prescribes two negative conditions, even if one condition is satisfied, there is no lapse in acquisition proceedings.

Therefore, only if both the conditions mentioned under Section 24(2) have not been fulfilled before the New LA Act came into force, would the land acquisition proceedings lapse. The bench observed that the alternative interpretation would place an undue burden on the state in land acquisition proceedings.”

The bench responded by saying that under S. 24(2), the phrase “paid” does not include a court-ordered reparation deposit. If a person has been granted compensation under the Old LA Act, he cannot claim that the acquisition has lapsed owing to non-payment or non-deposit of compensation in court under Section 24(2).

The bench went on to say that if the state has issued the compensation under the Old LA Act, it has fulfilled its duty to pay. 

Thereby, it was held that S. 24(2) of the New Act does not allow landholders to reopen settled cases, revive time-barred claims, or challenge the legality of concluded proceedings. S. 24(2) applies only to pending proceedings where the award was made at least five years prior to the effective date of the 2013 Act.

Impact of the judgment on land acquisition

The Supreme Court’s ruling is anticipated to pave the way for the prompt settlement of issues arising out of current purchase processes under the Old LA Act.

One may fairly anticipate this to open the way for fast physical and associated infrastructure development operations in the post-COVID-19 period, which had previously been blocked or put on hold owing to a variety of litigations concerning outstanding acquisition actions.

More land parcels would be liberated from the clutches of long-standing litigation and given access to the purchasing state or authority for use in significant infrastructure development and construction operations, which would definitely enhance the government’s endeavors to fulfill its goals under the “Housing for All by 2022” program and hasten urban growth.

 


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fiscal deficits

Does Our Bias Against Fiscal Deficits Need Rethinking?

By Others No Comments

What is Fiscal Deficit

Fiscal deficits occur when a government spends more money than it receives during a fiscal year. This mismatch, also known as a current account deficit or a budget deficit, is prevalent in today’s governments all over the world.

Over a particular time, a fiscal deficit arises when a government spends more money than it collects in taxes and other sources (excluding debt). To balance the gap between revenue and expenditures, the government borrows, increasing the national debt.

In theory, increasing the fiscal deficit might help a slow economy by providing more money to people, allowing them to consume and invest more.

HISTORY OF FISCAL DEFICIT

Many economists, policy analysts, bureaucrats, politicians, and commentators favor the idea of governments running fiscal deficits, though to differing degrees and under different conditions. Deficit spending is also a key instrument in Keynesian macroeconomics, which is named after British economist John Maynard Keynes, who believed that government spending boosted economic activity and that running large deficits might aid a drooping economy.

In 1789, as Secretary of the Treasury, Alexander Hamilton created and implemented the first real American deficit plan. Hamilton saw deficits as a strategy of strengthening government authority, similar to how war bonds helped Great Britain out-finance France during their 18th-century battles.

This practice has continued throughout history, with governments borrowing money to wage wars when raising taxes would be insufficient or impossible.

IMPACT OF FISCAL DEFICIT ON ECONOMY

The economic repercussions of budget deficits are disputed by economists and policy experts. Some, including Nobel Laureate Paul Krugman, claim that the government spends too little and that the sluggish recovery from the Great Recession of 2007–2009 is attributable to Congress’ refusal to run larger deficits to boost aggregate demand.

Budget deficits, according to some, inhibit private borrowing, distort capital structures and interest rates, lower net exports, and result in higher taxes, higher inflation, or both.

Until the early twentieth century, most economists and government advisers supported balanced budgets or budget surpluses. The Keynesian revolution and the advent of demand-driven macroeconomics made it politically feasible for governments to spend more than they brought in. As part of a focused fiscal policy, governments could borrow money and increase spending. 

The concept that the economy will return to a natural state of balance was rejected by Keynes. Instead, he contended that once an economic slump occurs, the fear and pessimism that it instills in firms and investors tend to become self-fulfilling, leading to a prolonged period of low economic activity and unemployment. 

In response, Keynes proposed a countercyclical fiscal strategy in which the government engages in deficit spending to compensate for the drop in investment and raise consumer spending to stabilize aggregate demand during periods of economic distress.

IMPACT OF FISCAL DEFICIT ON SHORT TERM

Even when the long-term macroeconomic effect of budget deficits is discussed, the immediate, short-term ramifications receive far less attention. However, the consequences vary depending on the type of insufficiency.

If the deficit emerges as a result of the government’s extra spending programs, such as infrastructure expenditure or business grants, the sectors that have chosen to receive the funds to get a short-term boost in operations and profitability.

There is no need for a stimulus if the deficit is caused by less government revenue, whether as a consequence of tax cuts or a decline in economic activity. While the topic of whether stimulus spending is beneficial is disputed, it certainly improves specific industries in the near run.

POSTIVE SIDE OF DEFIECT

Politicians and policymakers use fiscal deficits to fund popular measures like welfare and public works without raising taxes or cutting expenditures elsewhere in the budget. Fiscal shortfalls foster rent-seeking and politically driven appropriations in this way. Many firms support budget deficits implicitly if it means obtaining government advantages.

Large-scale government debt is not universally viewed as a bad thing. Budget deficits, according to some observers, are worthless because the money is “owed to ourselves.” Even if taken at face value, this is a dubious claim, given foreign creditors routinely acquire government debt instruments, and it ignores several macroeconomic variables that work against deficit spending.

Certain economic theories have broad theoretical support for government deficits, as well as near-unanimous support among elected officials. In the guise of tax cuts, stimulus spending, welfare, public goods, infrastructure, war financing, and environmental protection, both conservative and liberal regimes tend to run large deficits.

In the end, voters believe fiscal deficits are a good idea, whether or not they express it explicitly, to based on their proclivity to demand both expensive government services and low taxes at the same time.

NEGATIVE IMPACT OF DEFICIT

Government budget deficits, on the other hand, have been criticized by many economists throughout the years for crowding out private borrowing, distorting interest rates, supporting non-competitive businesses, and increasing nonmarket actors’ dominance. Nonetheless, since Keynes legitimized budget deficits in the 1930s, government economists have favored them.

Expansionary fiscal policy not only underpins Keynesian anti-recession strategies but also serves as an economic justification for what elected officials are naturally prone to do: spend money with minimal short-term implications.

During recessions, Keynes advocated for running deficits and then fixing budget deficits after the economy recovered. Raising taxes and cutting government services is unpopular even in times of prosperity, so this seldom happens. Governments have a tendency to run deficits year after year, resulting in massive public debt.

FINANCING A DEFICIT

All gaps in the budget must be filled. Initially, this is accomplished by selling government securities such as Treasury bonds (T-bonds). Individuals, corporations, and other governments purchase Treasury bonds and lend money to the government in exchange for the guarantee of future payment. 

The first and most obvious effect of government borrowing is that it limits the amount of money available to lend to or invest in other firms. 

This is unavoidably true: a person who lends $5,000 to the government cannot use that same $5,000 to buy private company stocks or bonds. As a result, all deficits have the impact of lowering the economy’s potential capital stock. The concern would be inflation rather than capital decline if the Federal Reserve monetized the debt altogether.

Furthermore, interest rates are directly affected by the selling of government assets to finance the deficit. Because government bonds are regarded as exceptionally secure investments, the interest rates paid on government loans are risk-free investments that practically all other financial products must compete with. 

If government bonds pay 2% interest, other financial assets must provide a higher rate to entice purchasers away from government bonds. This function is utilized when the Federal Reserve uses open market operations to change interest rates within the confines of monetary policy.

FEDERAL LIMITS ON DEFICIT

Despite the fact that government deficits appear to be expanding at an exponential rate and overall debt liabilities have reached stratospheric heights. Even if they aren’t as low as many would want, there are physical, legal, theoretical, and political limits to how far the government’s balance sheet may go into the red.

In practice, the US government’s deficits cannot be covered without recruiting loans. Individuals, corporations, and other governments purchase US bonds and Treasury bills (T-bills) on the open market, agreeing to lend money to the government since they are backed solely by the federal government’s full confidence and credit.

As part of its monetary policy procedures, the Federal Reserve buys bonds. There is a serious fear that if the government runs out of willing borrowers, deficits will be constrained and default will become a possibility.

The long-term consequences of complete government debt are both real and dangerous. If interest payments on the debt become unsustainable through traditional tax-and-borrow income streams, the government has three options. They have three choices: cut spending and sell assets to make payments, print money to cover the gap or default on debt commitments.

The second of these alternatives, a too aggressive increase of the money supply, could result in significant inflation, effectively (albeit inexactly) limiting the effectiveness of this technique.

STRATGIES TO REDUCE DEFECIET

Fiscal strategies such as expenditure cutbacks and tax hikes can help countries lower budget deficits by improving economic development. For example, lowering regulations and lowering corporate income taxes are two measures for raising Treasury inflows.

These strategies strengthen company confidence and stimulate economic growth, resulting in larger taxable earnings and more income taxes as a result of job growth.

Securities such as Treasury bills and bonds can be used to raise funds to satisfy debt obligations. While this offers a payment channel, it also puts the country’s currency in danger of depreciation, which might lead to hyperinflation.

 


Tags: deficit, deficit spending, fiscal deficits, financial deficit, revenue deficit, government deficit, current account deficit, budget deficit

force majeure

Force Majeure: Will The Pre Litigation Mediation Helps The Companies?

By Media Coverage No Comments

Force Majeure: Will Pre Litigation Mediation Helps Companies

In a contract, a clause in which there is a reference to Force Majeure which removes the liability of the participants for not fulfilling their obligation caused by the natural and unavoidable catastrophes that interrupt the expected course of events.

History:

This notion is defined and handled differently depending on the jurisdiction. It is also based on French civil law and is recognized by the Napoleonic Code. The English invented the concept of the Force Majeure clause. An English court determined in Taylor v. Caldwell that circumstances beyond the control or fault of two contractual parties excused performance under their agreement.

In the case of The Tornado, the Supreme Court of the United States established the same rule of law 20 years later. And in this case, the US SC very clearly said that if the contract doesn’t include this clause then the court will apply and go with the principles first laid down in the case of Tyler v Caldwell. (1863).

The Indian Contract Act of 1872 incorporates a Force Majeure provision. Section 32 is dedicated to contingent interaction. The frustration of the Contract is dealt with in Section 56.

It is crucial to note that even though Covid-19 comes within the scope of the force majeure provision, this does not automatically provide relief to the parties. The force majeure event must have a direct impact on the non-performance. 

Current scenario:

As previously stated, this idea is applied when the parties are unable to complete the contract owing to circumstances beyond their control. The question that now emerges is what specifically is covered by this concept.

Although Indian Courts have not directly ruled on whether an epidemic/ pandemic like Covid-19 is an ‘Act of God’, the decision of the Supreme Court in The Divisional Controller, KSRTC v. Mahadeva Shetty, which holds that the expression ‘Act of God’ signifies the operation of natural forces which is beyond the human control with the caveat that every unexpected natural event does not operate as an excuse from liability if there is a reasonable possibility of anticipating their happening.

Pros

  ‘Force Majeure’ clause to protect your business interests and the contract.

▪  With legal help, you can retain the contract.

  With the help of this clause, parties can obtain temporary relief from performing their obligation.  

Cons

  The Force Majeure clause not only excuses a party from performing but sometimes eliminates damage for breach of contract. 

  It is difficult to find out what event is considered under the ambit of Force Majeure. 

Industry impact:

COVID-19 has wreaked havoc on the economy in a variety of industries, including hotels, aviation, automotive, construction, logistics, and more, and many contractual performance duties have been rendered impossible. Many others, though more difficult, demanding, or expensive, are nevertheless physically or legally viable. COVID-19, on the other hand, will continue to have a destructive effect on world health and economics.

The worldwide COVID-19 epidemic has wreaked havoc on all industries and put a large portion of the world’s population under lockdown. This has caused firms to cease operating efficiently, as well as affecting other operations and contracts.

On the issue of contracts, this outbreak has brought many new aspects one of which includes the Force Majeure clause that impacts formal contracts. The COVID-19 pandemic has made many contracts delayed, interrupted, or even canceled.

Companies are facing disruptions to their supply chains, whether it’s due to vendors that are no longer providing services or customers who seemingly vanish.

Then who’s to blame if the supply chain breaks down in the event of a pandemic? What should a corporation do if its vendors refuse to work or are unable to work because its staff is at home? And, when a company’s revenue stream has abruptly dried up, how can it avoid paying payments under its contracts?

Conclusion:

While various contractual parties may attempt to rescind their commitments in the wake of the Covid-19 epidemic, relying on the force majeure provision in the applicable contract or Section 56 of the Act to do so is not guaranteed.  The onus of demonstrating whether Covid19 affected the performance of the specific contractual obligations in a particular case lies heavily on the party seeking to have its non-performance excused. 

Although determining whether the Covid-19 epidemic is within the scope of the appropriate force majeure clause is a good place to start, other factors such as causality and the duty to mitigate must also be considered in order to analyze the relative strengths and weaknesses of each party’s position.

Relevant letters and correspondence (including force majeure notices) should also meticulously document not just the fact that a force majeure event has occurred, but also the specific effects of the same on the contractual obligation which the party seeks to be excused from performing. 

 


Tags: pre litigation mediation, force majeure clause, majeure, force majeure, force majeure event, define force majeure, litigation mediation, force majeure clause in contract

the limitation act

Does The Limitation Act Apply to The Insolvency and Bankruptcy Code?

By Banking, Media Coverage No Comments

Does The Limitation Act Apply to IBC?

The Apex Court of India in the case of Seth Nath Singh & Anr vs. Baidyabati Sheoraphuli Co-operative Bank Ltd & Anr has observed that an applicant under Section 7 of the Insolvency and Bankruptcy Code can claim the benefit of Section 14 of the Limitation Act, 1963 (“Limitation Act”), In respect of proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI Act).

Background

Section 14 of the Limitation Act enables the period of bona fide proceedings in a court without jurisdiction to be excluded. In other words, the rule permits the time spent litigating before a venue with no jurisdiction to be excluded from the limitation period.

New Law-The period of limitation for making an application under Section 7 or 9 of the Insolvency and Bankruptcy Code is 3 years from the date of accrual of the right to sue, that is, the date of default. “There can be little question that Section 14 applies to an application under Section 7 of the IBC,” the court said. It is reaffirmed, at the risk of repetition, that the IBC does not preclude the application of Section 14 of the IBC.”

It states that there is no rule that the exclusion of time under Section 14 of the Limitation Act is available only after the proceedings before the wrong forum terminate.

The court further observed, “In our considered view, keeping in mind the scope and ambit of proceedings under the IBC before the NCLT/NCLAT, the expression ‘Court’ in Section 14(2) would be deemed to be any forum for a civil proceeding including any Tribunal or any forum under the SARFAESI Act.”

Impact on the industry

The Law will only protect those who are vigilant and not the negligent ones. The Insolvency and Bankruptcy Code is progressive legislation that is intended to improve the efficiency of insolvency and bankruptcy proceedings in India.

However, many details on the IBC’s implementation need to be worked out in the regulations, and its success will depend to a large extent on how quickly a high-quality cadre of insolvency resolution professionals will emerge and on whether the time-bound process for insolvency resolution will be adhered to in practice.

The IBC has brought a plethora of changes to insolvency laws in India and aims to reduce the number of bad loans that have saddled the economy over the last few years.

Ultimately time will tell if the IBC will prove to be an effective instrument in expediting India’s insolvency procedure, with many other bankruptcy resolution processes in the works. The ultimate goal of an application under Section 7 or 9 of the IBC is to use the Insolvency Resolution Process to resolve a “debt.”

In either case, since the Corporate Debtor’s default is the cause of action for filing an application, whether under Section 7 or Section 9 of the IBC, and the provisions of the Limitation Act 1963 have been applied to proceedings under the IBC, there is no reason why Section 14 or 18 of the Limitation Act would not apply for calculating the period of limitation.

Conclusion

In circumstances where financial creditors launched SARFAESI proceedings, the judgment cannot be regarded as blanket authority to file an application under Section 7 of the IBC to plead Section 14 of the Limitation Act.

In the current instance, the Calcutta High Court stopped the SARFAESI proceedings due to a lack of jurisdiction, which is a condition under Section 14 for the exclusion of time. In circumstances where the SARFAESI procedure has not been halted for lack of jurisdiction, the verdict may not be relevant.

 


Tags: apex court of india, insolvency and bankruptcy code, limitation act 1963, the limitation act, security interest act 2002, baidyabati sheoraphuli co operative bank, limitation act

due diligence in real estate transactions

Significance of Due Diligence in Real Estate Transactions

By Real Estate No Comments

Due Diligence in Real Estate Transactions

The word caveat emptor is not well recognized among most real estate owners and wealthy benefactors; nonetheless, it is amongst the most important and crucial legal criteria governing land transfers all over the world. In Latin, it translates as “let the purchaser be informed,”. It emphasizes that the consumer is solely responsible for ascertaining the quality and suitability of what they’re purchasing.

This is apparently the most important stage a client or funder would go through before negotiating a deal because it determines whether a property has the value it addresses. A property may appear to be perfect on the outside, but there may be factors why it should not be acquired at all or why it must be acquired for less than its listed price.

The expansion of inland exchange esteems joined with the developing investment of the coordinated area in the land has brought about increased attention to the dangers implied and, thus, the requirement for guaranteeing that the dangers are recognized and limited in such exchanges.

The rise in land exchange values, combined with growing investment in the integrated region in the land, has raised awareness of the risks involved and, as a result, the need to ensure that the risks are identified and minimized in such transactions.

Entrepreneurs will be preoccupied with finding better ways to progress open doors in a fast-increasing land commercial area. Veteran financial supporters in commercial real estate lay down every stone to reduce the possibility of post-exchange surprises. Given the breadth of the threats at hand, amateurs should use a comparable process and avoid rushing into an agreement.

Obtaining property necessitates further due diligence to find critical facts that aren’t always immediately apparent or attainable in determining the value of a property or portfolio. Such hidden nuances can derail the economic rewards of an overall beneficial agreement, turning the transaction into a costly blunder.

The relevance of performing real estate investigative reporting stems from the continual variations in the advantages of the property. As an outcome, the risks have escalated, as has the potential impact on the agreement. Due to cleverness concentrating on land resources might now analyze the genuine adequacy of the genuine trade.

As a result, it is critical for the placing organization to do an inquiry into the title, the legality of the projects being alluded to, the consents obtained, if any, encumbrances associated with the properties, and various other additional data that impact the notion of the exchange.

Thereafter, a property due diligence would basically seek to discover the merchant or lessor’s entitlements, proprietary rights, expenses, house mortgages, acquisitions, litigation, or any other constraints connected with the estate. Perseverance is important since it aids in the discovery of flaws in a project.

A thorough study is required to determine whether or not a property has any defects. Evidently, the seller would not be prepared to reveal the flaws in his resource in order to sell it at a reasonable price.

It is also possible that the merchant is aware of the risks associated with the commodity and is seeking to sell it to an inexperienced financier. Purchasing a property without first understanding its physical and legal condition is extremely risky. A buyer may be exposed to the risk of extortion, a pending case on the property, or the inability to get title to the property.

Furthermore, convincing due diligence would assist the buyer in making a better speculating decision. For example, due diligence may aid in identifying main damages that may be costly to repair, as well as unpaid charges, service bills, and other responsibilities that the merchant had failed to pay.

Given the foregoing, due diligence plays a significant role for an individual in any transaction involving land estate, whether it is for sale, purchase, rent, or house loan. Each such record or data concerning land property that impacts the character and transactions of such property must be tested and assessed.

Unexperienced financial backers may jump in whereby the qualified consumers fear to go, eager to participate in what appears to be a sure bet with no risk. Without a doubt, the lack of rigorous due diligence by all financial supporters might be a ticking time bomb, especially given concerns about a surging property market

Hardly any economic supporter can risk the extravagant surprise that arises as a result of an exchange’s completion. Furthermore, prior to entering into any such property exchange, it is appropriate to determine and ensure that all chain deeds, title archives, impediment endorsement, protection plans, and official permissions are in accordance with the legal requirements.

The proportion of due rigor varies with the value of the endeavor. The further money at stake, the more thorough the due diligence should be.

 


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doctrine of frustration

Could Doctrine of Frustration Be Used As a Rescue Card For Lease Agreements?

By Real Estate, Media Coverage No Comments

Doctrine of Frustration

The globe has come to a halt as a result of the covid-19 epidemic. However, the virus-induced countrywide lockdown has had far-reaching consequences for enterprises all over the world, as well as a negative impact on contractual ties, particularly those between a lessor and a lessee.

These extraordinary times have brought to light the awful condition in which individuals find themselves. Notably, numerous workers are already facing unemployment and wage reductions as a result of the stoppage of commercial activity; also, individuals are concerned about not being able to pay their rent. 

This article is focused on assessing the applicability of the doctrine of frustration with regard to lease agreements and the manner in which Indian Courts have dealt with the same. To minimize disagreements, a lease agreement should be created with the tenant’s individual needs in mind. Most significantly, all financial risks should be defined and distributed between the parties.

However, if a dispute emerges, the lessee’s evacuation must be carried out in accordance with the law. The two possible scenarios that may come up in court are Frustration of contracts under the Indian Contracts Act (ICA), 1872; and Force Majeure under, section 108 (e), Transfer of Property Act (TOPA), 1882.

 Frustration of contracts

The theory of frustration of contract, as set down in Section 56 of the Indian Contracts Act (ICA), 1872, states that if the contract’s fulfillment becomes impossible, the contract is considered frustrated. Changes in settings and events might lead to performance impossibilities.

Furthermore, the relationship between a lessor and a lessee involves a unique dynamic unlike other parties of a contract. In this situation, the transaction involves the transfer of an interest in a property, therefore, the principal law governing the transaction is the Transfer of Property Act (TOPA), 1882. 

As stated in UP State Electricity Board v. Hari Shankar Jain 1979 SCR (2) 355, it is a well-established legal principle that a specific statute takes precedence overboard legislation. Even so, the connection between the lessor and the lessee is contractual. As a result, we can use the Indian Contract Act (ICA), 1872 as long as it does not affect the status of the parties’ relationship.

 Regardless of the fact that the doctrine of frustration is applicable to lease agreements since the relationship between the parties determines the remedies available in case of a dispute, it is imperative to make a query into the nature of such a relationship.

In Sushila Devi And Anr vs Hari Singh And Ors [1971 SCR 671] & Raja Dhruv Dev Chand vs Harmohinder Singh & Anr [1968 SCR (3) 339] the court distinguished a lease agreement from the lease itself. 

As a result, if one of a lease agreement’s responsibilities has been rendered impossible, the lease agreement’s requirement has been frustrated. It is important to remember, however, that the lease is separate from other forms of contracts, and that it cannot be declared void on its own.

 In light of the above judgments, despite the hard-hitting reality of the pandemic affecting all, it can be observed that the doctrine of frustration could be claimed only for certain obligations. 

However, it would not come to the rescue of the lessees from payment of the lease, given that the Transfer of Property Act (TOPA), 1882 provides for similar situations.

It is the special legislation governing leases and thereby, the provisions of the Act would supersede the application of the provisions of the Indian Contract Act (ICA), 1872.

 


Tags: rescue card, lease agreements, doctrine of frustration, lease extension agreement, tenant lease agreement, rental agreement, rental lease agreement, lease contract