ALAYA LEGAL BULLETIN
Arbitration and Litigation
Inquiry about mesne profits continuation of Original Suit; Application for such inquiry not barred by limitation.
The Hon’ble Supreme Court allowed a decree-holder to file an application for the determination of mesne profits nearly 26 years after the decree was passed. The counsel for respondents contended that the application is only a reminder to the court to complete the process of inquiry with regard to the determination of the mesne profits as has been directed by the Court in the first instance, and is not a fresh suit. The Hon’ble Court held that the proceedings are not barred by limitation and that they are not fresh proceedings rather they are a continuation of the old suit in the form of a preparation of the final decree.
Court Name: Supreme Court of India
Case Name: Choudappa & Anr. v. Choudappa represented by LRs & Ors.
Case No.: SLP (Civil) No. 3056 of 2023
Date of Decision: September 03, 2024
Mere Arbitration Clause in invoices insufficient, Express or implicit acceptance of terms of invoices necessary.
The Delhi High Court has held that simply including an arbitration clause in invoices does not constitute a valid arbitration agreement. The High Court held that since the applicant neither expressly or by necessary implication accepted the terms of the invoices, they cannot be said to contain any arbitration agreement between the petitioner and the respondent. The bench held: “They do not contain the signature of the petitioner or anything to indicate that the petitioner had consented to the recitals in the invoices. Indeed, the invoices are practically unintelligible.”
Court Name: High Court of Delhi
Case Name: Mohammad Eshrar Ahmed v. M/S Tyshaz Buildmart India Private Limited
Case No.: O.M.P. (T) (COMM.) 105/2023, I.A. 22122/2023
Date of Decision: September 03, 2024
Arbitration | Absence of monetary claim in Section 21 Notice does not negate existence of disputeThe Delhi High Court ruled that the broad interpretation of ‘dispute’ under the Arbitration and Conciliation Act, 1996 prevents the court from concluding that no dispute exists between parties, even if the notice under Section 21 of the said Act lacks a monetary claim. Section 21 states that arbitral proceedings commence when a party requests the appointment of an arbitrator.
Court Name: High Court of Delhi
Case Name: Celsius Healthcare Pvt. Ltd. v. Deepti Gambhir Proprietor of SP Distributors
Case No.: ARB. P. 1015/2024
Date of Decision: September 04, 2024
Non-compliance with Share Purchase Agreement; Arbitrability of dispute must be decided by Arbitral Tribunal, not by Court.The Delhi High Court ruled that disputes over non-compliance with procedural requirements of a Share Purchase Agreement (SPA) cannot be resolved by the court under Section 11(6) of the Arbitration and Conciliation Act, 1996. Instead, such issues should be addressed by the arbitral tribunal. The case involved a SPA with an arbitration clause stipulating that disputes should first be attempted to be resolved through mutual consultation, failing which arbitration should follow.
Court Name: High Court of Delhi
Case Name: Thriving Farm Builders Pvt. Ltd. and Anr. v. Sushil Chaudhary and Anr.
Case No.: ARB. P. 1067/2024
Date of Decision: September 05, 2024
Arbitration | Courts at referral stage must not enter into contested questions involving complex facts.The Hon’ble Supreme Court reaffirmed that if a valid arbitration agreement exists, referral courts must limit their inquiry to determining the agreement's validity and cannot delve into complex factual disputes. Further on the scope of enquiry at the referral stage for the determination of whether a non-signatory can be impleaded as a party in the arbitration proceedings, it was observed by the Constitution Bench in the case of Cox And Kings Ltd. vs Sap India Pvt. Ltd. that the doctrine of competence-competence is intended to minimise judicial intervention at the threshold stage. In petitions for appointing an arbitrator under Section 11(6), referral courts should not conduct detailed investigations into contested factual issues.
Court Name: Supreme Court of India
Case Name: Cox and Kings Ltd. v. SAP India Pvt. and Anr.
Case No.: Arbitration Petition No. 38 of 2020
Date of Decision: September 09, 2024
Corporate & Commercial
IBC | Auction-Purchaser entitled to benefit of COVID for extension of limitation: Hon’ble Supreme Court refuses to cancel sale over delayed deposit
The Hon’ble Supreme Court refused to cancel an e-auction despite the Auction Purchaser's default in paying the balance sale amount, citing that the auctioned property had already been utilised and the appellant delayed approaching the court.
The Hon’ble Supreme Court underscored the settled legal position that when an auction is confirmed, it ought to be interfered with on fairly limited grounds. Unless there are some serious flaws in the conduct of the auction such as perpetration of fraud/collusion, and grave irregularities that go to the root of such an auction, courts must ordinarily refrain from setting them aside. Hence, this Court shall refrain from cancelling the sale or declaring the Sale Deed as void.
Court Name: Supreme Court of India
Case Name: V.S. Palanivel v. P. Shriram, CS, Liquidator, etc.
Case No.: Civil Appeal Nos. 9059-9061 of 2022
Date of Decision: August 28, 2024
Companies Act | When can courts exercise power of rectification of Register of Members? The Hon’ble Supreme Court explains
The Hon’ble Supreme Court ruled that Company Law Tribunals can rectify the register of members under Section 59 of the Companies Act, 2013, in cases of open-and-shut clear of fraud against the person seeking rectification.
Court Name: Supreme Court of India
Case Name: Chalasani Udaya Shankar and Ors. v. M/S Lexus Technologies Pvt. Ltd. and Ors.
Case No.: Civil Appeal Nos. 5735-5736 of 2023
Date of Decision: September 09, 2024
Past Tax Claims against Corporate Debtor stands extinguished consequent to approval of Resolution Plan under IBC
The Bombay High Court held that tax proceedings were pertaining to a period prior to the Corporate Insolvency Resolution Process, and consequent to the approval of the resolution plan, all dues which are not part of the resolution plan would stand extinguished and no person would be entitled to initiate or continue any proceedings in respect of any claim for any such due.
Court Name: High Court of Bombay
Case Name: Uttam Value Steels Ltd. and Anr. v. Assistant Commission of Tax and Ors.
Case No.: WP(L) No. 9420 of 2022
Date of Decision: August 28, 2024
NCLAT declares Sale Agreement not a financial debt and dismisses the Insolvency Petition.
The National Company Law Appellate Tribunal (NCLAT)(Principal Bench, New Delhi, has held that sale consideration in the sale agreement did not constitute a ‘financial debt’ under Section 5(8) of the Insolvency and Bankruptcy Code, 2016 (IBC), reaffirming the previous ruling by the Hon’ble Supreme Court wherein it was stated that ‘disbursal of property’ cannot be accepted to be covered under the definition of ‘financial debt’ under Section 5 of the IBC as it is not contemplated by the said Section.
Tribunal Name: National Company Law Appellate Tribunal
Case Name: Sandeep Mittal v. Asrec India Ltd. and Ors.
Case No.: Company Appeal (AT) (Insolvency) No. 37 of 2024
Date of Decision: September 09, 2024
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The Central Government has notified September 10, 2024, as the date of commencement of specific sections of the Competition (Amendment) Act, 2023 (‘Act’). The Act proposed various amendments to the Competition Act, 2002 (‘Principal Act’). The provisions coming into force include:
The Central Government notified the Competition (Criteria of Combination) Rules, 2024, effective from September 10, 2024. The said Rules outline criteria for combinations under Section [6(4)- Regulation of Combination] of the Competition Act, 2002.
The Competition (Minimum Value of Assets or Turnover) Rules, 2024, effective from September 10, 2024, establish thresholds under Section 5(e) of the Competition Act, 2002.
The Central Government has notified that the Companies (Compromises, Arrangements and Amalgamations) Amendment Rules, 2024 to amend the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. The amendments shall come into force from the 17th day of September, 2024.
FAQs on Combinations Regulations 2024The Competition Commission of India has published FAQs in Combinations Regulations 2024, Key points include-
Energy and Sustainability
Live Wire Accident: Jharkhand High Court refuses to enhance compensation based on subsequent government circulars/ notifications
The Jharkhand High Court denied additional compensation to a man who claimed a 60% loss of eyesight due to an accident involving a live wire in April 2018. The Court ruled that the accident occurred before the Gazette notification by the Jharkhand State Electricity Regulatory Commission (JSERC) on December 21, 2018, which rendered the claim for extra compensation invalid.
Court Name: High Court of Jharkhand
Case Name: Laltu Parira v. The State of Jharkhand and Ors.
Case No.: W.P. (C) No. 4492 of 2019
Date of Decision: July 10, 2024
The Arbitral Tribunal may implead a non-signatory to the Arbitral Proceedings.
The Delhi High Court ruled that an arbitral tribunal can decide whether to implead a non-signatory to the arbitration agreement. This decision follows the precedent set in Cox and Kings Ltd v. Sap India Pvt Ltd (Cox and Kings II). The High Court held that the tests laid down by the Hon’ble Supreme Court in the precedents, with respect to the circumstances in which a non-signatory to an arbitration agreement can be impleaded in arbitral proceedings are not satisfied in the present case, nor are the classical tests which apply while considering a prayer for impleadment under Order I Rule 10 CPC, satisfied.
Court Name: High Court of Delhi
Case Name: Indraprastha Power Generation Company Ltd. v. Hero Solar Energy Pvt. Ltd.
Case No.: ARB. A (COMM.) 46/2024 and CAV 421/2024, IA 37805-37806/2024
Date of Decision: August 30, 2024
CERC allows NHPC to adopt Usage Charges of ₹2.45 for selling Solar PowerThe Central Electricity Regulatory Commission (CERC) has allowed NHPC (formerly known as National Hydroelectric Power Corporation Ltd). to adopt the usage charges of ₹2.45(~$0.029)/kWh under the competitive bidding process to procure 1,000 MW of solar power under the CPSU Phase II (Tranche III) program.
Green Hydrogen Certification Scheme of India for Stakeholder Comments.
As part of the National Green Hydrogen Mission, Ministry of New and Renewable Energy (MNRE) is in the process of finalising the proposed Green Hydrogen Certification Scheme of India (GHCI).
The ministry has recently released a draft for the proposed certification scheme for stakeholder consultation. The GHCI aims to provide a holistic framework for the measurement, monitoring, and certification of Green Hydrogen production in India with the objective of outlining the governance structure of the certification scheme and further define roles and responsibilities for various stakeholders involved in the certification process.
Commencement of Central Electricity Regulatory Commission (Deviation Settlement Mechanism and Related Matters) Regulations, 2024CERC has notified that the Central Electricity Regulatory Commission (Deviation Settlement Mechanism and Related Matters) Regulations, 2024 which shall come into effect from 16.09.2024.
The said regulations seek to ensure, through a commercial mechanism, that grid users do not deviate from and adhere to their schedule of drawal and injection of electricity in the interest of security and stability of the grid.
Cabinet approves Modification of the scheme of Budgetary Support for the cost of Enabling Infrastructure for Hydro Electric Projects.
The Union Cabinet chaired by the Prime Minister Shri Narendra Modi has approved the proposal of the Ministry of Power for modification of the scheme of budgetary support for the cost of Enabling Infrastructure for Hydro Electric Projects (HEP) with a total outlay of Rs.12461 crore. The scheme would be implemented from FY 2024-25 to FY 2031-32.
The scheme will be applicable to all Hydro Power Projects of more than 25 MW capacity including the private sector projects which have been allotted on a transparent basis. This scheme will also be applicable to all Pumped Storage Projects (PSPs) including Captive/Merchant PSPs, provided that the project has been allotted on a transparent basis.
A cumulative PSP capacity of about 15,000 MW would be supported under the scheme. The projects whose Letter of Award of first major package is issued upto 30.06.2028 would be considered under this scheme.
Featured Post
Complexities of Significant Beneficial Ownership and Corporate Control
The implication of contractual arrangements concerning management and control of a company or group companies requires a proper understanding of the determination of ‘beneficial ownership’ and ‘significant beneficial ownership’. Disclosure and compliance constitute only one aspect. Intricacies may be involved concerning such contractual arrangements, and corporate and commercial legal advisors may require their implication and assistance.
Introduction
There is a distinction between holding or acquiring ‘legal interest’ and holding or acquiring ‘beneficial interest’ in a company. In order to understand behind-the-scenes decision-makers with respect to a company, the identity of beneficial owners must be disclosed. Disclosure of ‘beneficial interest’ aids transparency and accountability, and is a step towards tackling measures and practices adopted by persons to misuse corporate vehicles to evade tax or launder money for corrupt or illegal purposes.
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Disclaimer: The content provided in this newsletter is intended only for the purposes of general awareness and should not be considered as legal advice. Readers are advised to consult with a qualified legal professional in relation to any specific issues that are mentioned herein.