While the NCLAT has previously held that monies from a corporate debtor’s account cannot be appropriated by a financial creditor once Corporate Insolvency Resolution Process (CIRP) is initiated, the Allahabad Bench of the NCLT recently passed an order allowing such appropriation.
Read more at http://bit.ly/2GHGRR9
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Analysis of Delhi High Court Judgement in Spentex Industries Ltd. vs. Louis Dreyfus Commodities India Pvt. Ltd.
The venue of Arbitration cannot change the intention of the parties to vest the Courts with exclusive jurisdiction.
Read full case analysis at : https://dasgovernance.com/2019/02/25/analysis-of-delhi-high-court-judgement-in-spentex-industries-ltd-vs-louis-dreyfus-commodities-india-pvt-ltd/
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IBC- new few case law and notification-
💡LION SERVICES LTD
VERSUS
AURA MANAGEMENT SERVICES (P.) LTD
NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI BENCH
(SPECIAL BENCH)
Section 238, section 9, Section 3(12), section 7 , Section 8 of the Insolvency and
Bankruptcy Code, 2016
Pendency of execution proceeding under provisions of Arbitration and
Conciliation Act, 1996 would not exclude jurisdiction of Tribunal to accept
application under section 9 to initiate CIRP.
Where arbitration award was announced on 2-12-2013 and while execution
proceedings were pending, petition for initiation of CIRP was filed on 1-6-
2018, same was to be admitted.
Where invoices and demand notice were sent to address of corporate debtor
which was available in MCA record, corporate debtor's objection that it was
not served at new address which was known to operational creditor could
not be accepted, CIRP petition was to be admitted.
💡VIJAY KUMAR JAIN
VERSUS
STANDARD CHARTERED BANK
SUPREME COURT OF INDIA
Members of erstwhile Board of Directors, being vitally interested in resolution plans that may be discussed at meetings of committee of creditors, must be given a copy of such plans as part of 'documents' that have to be furnished along with notice of such meetings.
💡SWISS RIBBONS (P.) LTD
VERSUS
UNION OF INDIA
SUPREME COURT OF INDIA
Financial creditors are clearly different from operational creditors and, therefore, there is obviously an intelligible differentia between the two which has a direct relation to the objects sought to be achieved by the Code. Operational creditors are not discriminated
against or that Article 14 has not been infracted either on the ground of equals being treated unequally or on the ground of manifest arbitrariness.
💡FORECH INDIA LTD
VERSUS
EDELWEISS ASSETS RECONSTRUCTION CO. LTD
SUPREME COURT OF INDIA
Proceedings initiated under section 7 or section 9 of the Insolvency and Bankruptcy Code are independent proceedings, which can continue independent of any winding up petition
that may be pending in a High Court under Companies Act.
💡UNION BANK OF INDIA
VERSUS
IP CONSTRUCTION (P.) LTD
NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI BENCH
Where applicant bank had sanctioned and disbursed loan amounts recoverable with
applicable interest by entering into loan agreements with corporate debtor but corporate debtor had defaulted in repayment of loan amount, loan being disbursed against consideration of time value of money with a clear commercial effect of borrowing would come within purview of financial debt and applicant bank was financial creditor whose
application under section 7 was to be admitted.
💡SMT. ALKA AGARWAL
VERSUS
PARSVNATH LANDMARK DEVELOPERS (P.) LTD
NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI BENCH
Where corporate debtor i.e., Parsvnath builders, failed to handover physical possession of flat to allottees within agreed period of thirty six (36) months from date of commencement of construction of tower in which flat was located, amount of consideration paid was financial debt in terms of revised definition under section 5(8)(f) and application filed under section 7 by allottee-financial creditors for default committed by corporate debtor in repayment of outstanding debt was to be admitted.
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"INC 22A (eForm ACTIVE)"
MCA introduces new e-form INC 22A – also known as eForm ACTIVE (Active Company Tagging Identities and Verification) by issuing new rule 25A under Companies Incorporation Amendment Rules with effect from 25th February, 2019.
1) Applicable to which Companies?
This eForm INC 22A is applicable to every Company Incorporated on or before 31/12/2017. (However, company which has not filled its due financial statements
under section 137 or due annual returns under section 92 or both with the
Registrar shall be restricted from filing e-Form-ACTIVE, unless such company
is under management dispute and the Registrar has recorded the same on the
register.
2) Which Companies are exempted from the compliance of filing of eForm INC 22A?
1. Struck Off Companies
2. Under Process of Striking off Companies
3. Under Amalgamation Companies
4. Under Liquidation Companies
5. Dissolved Companies
3) What are Mandatory Attachment in from INC 22A?
Photograph of Registered Office showing external building and inside office also showing therein atleast one director/ KMP who has affixed his/her DSC to this form.
4) What Information is required for filing of eForm INC 22A?
1. Address of registered office along with Latitude and Longitude details.
2. Email ID and OTP generated on EMAIL ID.
3. List of all Directors of the Company with Active status of DIN. If any Director on Board of the Company who does not have the Active DIN status, Company will not be able to file eForm INC 22A.
4. Details of Auditor/s.
5. Details of Cost Auditor/s.
6. Details of CEO, CFO and CS, if any.
7. SRN of AOC4, AOC4 XBRL and MGT-7 of FY 2017-18.
5) What is the due date for filing of eForm INC 22A ?
Every Company incorporated before December 31, 2017 are required to file eForm INC 22A on or before April 25, 2019.
6) Consequences of late / Non Filing of eForm INC 22A/eForm ACTIVE ?
i) Any filing after April 25, 2019 will be possible only after payment of late fees of Rs. 10,000/-
ii) The Company will be marked as “Active – Non Compliant” in MCA Master Data.
iii) Such defaulting Companies will not be allowed to file following eforms
a. SH-7 (Change in authorized capital)
b. PAS-3 (Change in Paid up capital)
c. DIR-12 (Change in director except cessation)
d. INC-22 (Change in the registered office of the company)
e. INC-28 (for amalgamation /demerger)
🍎Note-
📑 Before Filing the form Make sure that all the DIN of the Directors are Active and not Disqualified or Deactivated due to non-filing of DIR-3KYC
📑
As per the e-Form 22A available on MCA Portal, it is required to be digitally signed by 1 (one) director in case of OPC and in case company is other than OPC, shall be signed by 1 (one) director and 1 (one) KMP or 2 (two) directors.
FURTHER for certifying professionals there is a risk U/s. 448 which make them liable U/s. 447 i.e. shall be punishable with imprisonment for a term which shall not be less than 6 (six) months but which may extend to 5 (five) years or with fine which may extend to Rs. 50,00,000/- [Rupees fifty lakh rupees] or with both.
📑form ACTIVE ( form 22A) available for filing from today. It cannot be filed if the co has paid up capital more than 5 cr and there is no company secretary. No fees to file this form upto 25th April 19, after that fees of Rs. 10k
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SC dismissed plea filed by CCI seeking probe against Idea, Airtel and Vodafone
Reliance Jio approached CCI alleging anti-competitive cartel having been formed by three major telecom operators, Idea, Airtel and Vodafone to deny Point of International (POI) services to Jio during its test phase. It was also alleged that these companies were denying mobile number portability requests of customers who wanted to switch to Jio. CCI after prima facie finding that Jio was subjected to anti-competitive practices issued order to investigate the matter. On Writ, the High Court held TRAI Act had concluded/ attained finality.
On further appeal, the Supreme Court held that TRAI is a complete Code in itself which regulates telecom sector in its entirety. Hence, CCI could have exercised jurisdiction to interpret contact conditions/ policies of telecom Sector/ industry/ market, arising out of the TRAI Act only after proceedings under TRAI Act had concluded/ attained finality - Competition Commission of India. V. Bharti Airtel Ltd.
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💡Flashback💡
Highlights of Companies (Amendment) Ordinance 2019
1. Commencement Certificate is mandatory now to be obtain within 6 months of Incorporation without which, it can not comment its business activity or borrow money.
2. The ROC can strike off a company if the address of Regd Office is bogus or incomplete/improper address.
3. Conversion of public Ltd to Pvt Ltd matters shifted from NCLT to Regional Directorate.
4. Company cannot issue shares at discount, - heavy penalty imposed on violation.
5. Alteration of Authorised Capital to be intimated within 30 days, default - penalty 1000 every day or 5 Lac whichever is less.
6. Creation of charge filing with ROC- time limit reduced from 300 days to 60 days.
7. Wrong statement/ information in filing Charge forms with ROC may lead to misrepresentation and jail
8. Annual Return should be filed within 60 days from AGM, failure to this, penalty of 100 per day to Company + directors max 5 Lakh apart from ROC delay charges is applicable.
9. Penalty of 5 lakh to Company secretary certifying wrong Annual Return.
10. Explanatory statement to be given with Notice of General Meeting must contain all details as required by Law, if no detail/short detail/misleading - penalty for Company + Directors + KMP - 50K
11. filing of Resolutions with ROC- delay will be very costly now. Penalty for defaulter increased substantially. 500 every day max 25 Lakh
12.Filing of Balance sheet with ROC within time limit- failure is costly for Company + Directors both. Penalty of 100 per day + 1 lakh to Company + Director each.
13. Resignation of Auditor must be filed by the resigning Auditor within 30 days, failure to which the resigning Auditor is liable for penalty of 50,000 + 500 per day.
14. A director can not become director in morethan 20 companies. If he continues, he becomes disqualified now.
15. Appointment of CS on payroll (Pvt Co having paid-up capital 5 cr & above) is mandatory. Default is now very costly- penalty increased substantially.
16. ROC may strike off a company if subscribers have not paid initial share capital after incorporation of a Company within 6 months.
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👉In a bid to tackle the Tax Evasion among the businesses, the Govt is planning to Integrate & Link GST returns with the E-way Bills. While the full-fledged implementation is starting from 1st July 2019, the pilot run is set to begin in April 2019
👉RBI proposes New Compensation Norms for Top Officials of Private & Foreign Banks. RBI proposes wide-ranging changes in compensation plans for top bank executives, including directors and ace traders often earning bulge-bracket bonuses, suggesting even the inclusion of a clawback clause on variable pay when assessments of the central bank and those of a lender differed on asset quality.
👉In a much needed respite to E-Wallet Companies, the RBI extends deadline for completion of Know Your Customer (KYC) norms for Prepaid Payment Instrument (PPI) Issuers by 6 months. Earlier, the Deadline for complying with KYC norms was Feb 28, 2019
👉India’s Goods and Services Exports during the current financial year would cross USD 500 Billion despite challenges being faced on the Global Trade Front
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⚠️Certain scheme to be Unregulated Deposit Scheme.
A prize chit or a money circulation scheme banned under the provisions of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978 shall be deemed to be an Unregulated Deposit Scheme under this Ordinance.
22. Punishment for contravention of section 4.
Any deposit taker who contravenes the provisions of section 4 shall be punishable with imprisonment for a term which may extend to seven years, or with fine which shall not be less than five lakh rupees but which may extend to twenty-five crore rupees or three times the amount of profits made out of the fraudulent default referred to in said section, whichever is higher, or with both.
23. Punishment for contravention of section 5.
Any person who contravenes the provisions of section 5 shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to five years and with fine which may extend to ten lakh rupees.
24. Punishment for repeat offenders.
Whoever having been previously convicted of an offence punishable under this Chapter, except the offence under section 26, is subsequently convicted of an offence shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to ten years and with fine which shall not be less than ten lakh rupees but which may extend to fifty crore rupees.
25. Offences by deposit takers other than individuals.
(1) Where an offence under this Ordinance has been committed by a deposit taker other than an individual, every person who, at the time the offence was committed, was in charge of, and was responsible to, the deposit taker for the conduct of its business, as well as the deposit taker, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
(2) Nothing contained in sub-section (1) shall render any such person liable to any punishment provided in this Ordinance, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(3) Notwithstanding anything contained in subsection (1), where an offence under this Ordinance has been committed by a deposit taker other than an individual, and it is proved that the offence—
(a) has been committed with the consent or connivance; or
(b) is attributable to any neglect on the part of any director, manager, secretary, promoter, partner, employee or other officer of the deposit taker,
such person shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
26. Punishment for contravention of section 10.
Whoever fails to give the intimation required under sub-section (1) of section 10 or fails to furnish any such statements, information or particulars as required under subsection (2) of that section, shall be punishable with fine which may extend to five lakh rupees.
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