Legal News & Views

In Mr. A. Maheshwaran Vs. Stressed Assets Stabilization Fund & Anr., NCLAT referring Innoventive Industries Ltd. v. ICICI Bank, (2018) 1 SCC 407] judgment and held that it is evident that even if a debt is disputed, if the amount is more than Rupees One Lakh, the application under Section 7 is maintainable. What is the exact amount of claim, that is only considered at the stage of the ‘Corporate Insolvency Resolution Process’, when the ‘Interim Resolution Professional’ after collating the claims, including the claim of the Respondent, may ascertain what amount is payable to the Respondent.

In Company Appeal (AT) (Insolvency) No. 06 of 2019, Vinayaka Exports Vs. M/s. Colorhome Developers Pvt. Ltd, appeal was filed against the dismissal of petition by the Adjudicating Authority on the grounds that under Section 5(6) and Section 5(6)(a) of the IBC, 2016 as there is a civil suit pending and there exists a dispute in the amount of debt between both the parties and also under section 7(5)(b) of the IBC, 2016 for being incomplete in details. The NCLAT however found that application was filed under Section 7 of the Insolvency Code and there is no dispute about the existence of a default. The Adjudicating Authority was of the view that in view of pendency of the civil suit, there exist a dispute in the amount of debt between both the parties is concerned. The said stand cannot be accepted. The application filed before the Adjudicating Authority is under Section 7 of the IBC and not under Section 9 of the IBC where one can take a plea stating that there exists a dispute betwe...

In CRIMINAL APPEAL NO. 1481 OF 2019, NEVADA PROPERTIES PRIVATE LIMITED vs STATE OF MAHARASHTRA, in view of the seriousness of the matter, this appeal along with several others were referred to the a larger bench by the Division Bench of the Supreme Court. This appeal arises from judgment of the High Court of Judicature at Bombay dated November 29, 2010 wherein the majority judgment has held that the expression ‘any property’ used in sub-section (1) of Section 102 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’) does not include immovable property and, consequently, a police officer investigating a criminal case cannot take custody of and seize any immovable property which may be found under circumstances which create suspicion of the commission of any offence. According to the majority judgment, earlier decision of the Division Bench of the same High Court in Kishore Shankar Signapurkar v. State of Maharashtra and Others lays down the correct...

In CIVIL APPEAL NO(S). 6295 OF 2015, The Authorised Officer, Indian Bank  vs D. Visalakshi and Anr., the longstanding conflicting view of views of various High Courts on the whether the Chief Judicial Magistrate is competent to process the request of the secured creditor to take possession of the secured asset under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. (SARFAESI) has been decided. Till this judgment, various courts had been deciding on this issue taking either the view that role of CJM and CMM are interchangeable, with  only the jurisdiction being different and therefore applicable to Section 14 while other courts have held that only CMM and DM is allowed under Section 14. The Calcutta High Court agreeing with the Bombay High Court had opined that once an authority has been named for the purpose of rendering assistance, the Court cannot confer jurisdiction on any other authority, who ...

In W.A.Nos. 2112 & 2118 of 2018, appeal was filed before the Kerala High Court against the judgment of the single bench wherein the objection of several petrol pump dealers against the petroleum companies demand for disclosure bank account details and income tax returns were disallowed. The dealers had claimed that such demand is violation of right to privacy. Referring to judgment of the Hon'ble Supreme Court in K.S.Puttaswamy v. Union of India : (2017) 10 SCC 1, the division bench said observed that the said judgment said held that any action by the State or its agencies which curbs or restricts the right to privacy of a citizen shall pass each of the following three tests: (1) test of legality, that is, such action must have a legislative or statutory basis (2) test of need and necessity, that is, such action  shall serve a definite purpose in public interest and (3) test of proportionality, that is, such action shall be at the minimum level required to achieve the obje...

In CRIMINAL APPEAL NO.1325 OF 2019, KISHORE SHARMA vs SACHIN DUBEY, appeal was filed before the Supreme Court against the order of the Madhya Pradesh High Court wherein the High Court quashed of proceedings instituted against the defendant solely based on the issue that a legal notice was not duly served on him within the statutory period. Referring to the judgment of  three judge bench in M/s. Ajeet Seeds Ltd. vs K. Gopala Krishnaiah, wherein referring to an earlier judgment of the Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed & Anr It is held in this case that it is not necessary to aver in the complaint that notice was served upon the accused. Further service of notice is a matter of evidence and proof and it would be premature at the stage of issuance of process to move the High Court for quashing of the proceeding under Section 482 of the Cr.P.C. Section 114 of the Evidence Act enables the Court to presume that in the common course of natural e...

In CIVIL APPEAL NOS. 7424­7425 OF 2011, SURINDER KAUR vs BAHADUR SINGH, an agreement for sale was signed between the appellant and the defendant upon which the possession was handed over to the defendant against payment of a small sum as earnest money. As there was pending litigation between parties, it was agreed that the sale deed would be executed within one month from the date of decision of civil appeal pending before the Punjab and Haryana High Court. When the said litigation was finally decided 13 years later, Bahadur Singh requested the appellants to execute the sale deed but since she failed to do so, a suit for specific performance of the agreement was filed by Bahadur Singh.  The Appellants raised the plea that since Bahadur Singh had admittedly failed to pay the rent of the land in terms of Clause 3 of the agreement, he was not entitled to a decree for specific performance. The suit has been decreed by all the courts below and finally came up before the Suprem...

In Saravana Global Holdings Ltd. & Anr. Vs. Bafna Pharmaceuticals Ltd. & Ors, the appellants claimed that they were interested to submit their Resolution Plan but no opportunity was given to them to file the same and that the the Resolution Plan was approved by the COC and allowed by the NCLT without complying the mandatory provisions of the Code.  The NCLAT held that  it is clear that ‘I&B Code’ envisages maximization of value of the assets of the ‘Corporate Debtor’ so that they are efficiently run as going concerns and in turn, will promote entrepreneurship. The ‘Committee of Creditors’ is to consider the feasibility, viability and such other requirements as has been specified by the Board. If it proposes maximisation of the assets and is found to be feasible, viable and fulfil all other requirements as specified by the Board, the company being MSME, it is not necessary for the ‘Committee of Creditors’ to follow all the procedures under the ‘Corpor...

In CIVIL APPEAL NO. 4952 OF 2019, GAURAV HARGOVINDBHAI DAVE vs ASSET RECONSTRUCTION COMPANY (INDIA)LTD., the Respondent No.2 was declared NPA on 21.07.2011 and an application Section 7 application filed under the Insolvency and Bankruptcy Code on 03.10.2017 and the date of the NPA was declared as 21.07.2011. NCLT allowed the application while applying Article 62 of the Limitation Act under which the limitation period was 12 years from the date on which the money suit has become due. NCLAT following its earlier judgments dismissed the appeal holding that the time of limitation would begin running for the purposes of limitation only on and from 01.12.2016 which is the date on which the Insolvency and Bankruptcy Code was brought into force. Appeal was filed before Supreme Court against this order. The appellants quoting Supreme Court judgment in B.K. Educational Services Private Limited vs. Parag Gupta and Associates, 2018 SCC OnLine SC 1921 argued that Article 137 being a residu...

In CRIMINAL APPEAL NO. 1371 OF 2019, BAJARANG SHYAMSUNDER AGARWAL VS CENTRAL BANK OF INDIA & ANR., appeal was filed before the 3 judge bench of the Supreme Court against the order of the Chief Metropolitan Magistrate, Esplanade, Mumbai rejecting the application of the intervenor who is the appellant-­tenant herein seeking to stay the execution of order passed under Section 14 of the Sarfaesi Act, 2002 [ for taking possession of the property in question. The respondent bank had applied before the Ld. CMM for taking possession of the secured asset in 2012 against which the appellant claiming to be the tenant, asserts that the secured asset was let out to him by respondent no. 2­/borrower/landlord in January, 2000 and he has been paying rent since then. Admittedly, the tenancy was based on an oral agreement. The CMM after hearing the appellant­/tenant, rejected the application holding that the appellant­/tenant being a tenant without any registered instrument is not entitled ...

In SLP (C) NO. 4272 OF 2015, PUNJAB URBAN PLANNING AND DEVELOPMENT AUTHORITY vs VIDYA CHETA & Others, reference was made to a larger bench by a two  judge bench of the Supreme Court wherein the said bench had expressed doubt as to the correctness of the judgment rendered in the case of HUDA vs. Sunita, (2005) 2 SCC 479 where it was held that the National Consumer Disputes Redressal Commission (hereinafter referred to as “NCDRC”) had no jurisdiction to adjudicate the legality behind the demand of “composition fee” and “extension fee” made by HUDA, as the same being statutory obligation, does not qualify as “deficiency in service”. The larger bench held that beneficial or remedial legislation needs to be given ‘fair and liberal interpretation’ and the liberal construction, extends the letter to include matters within the spirit or purpose. Sovereign functions like judicial decision making, imposition of tax, policing etc, strictly understood, qualify for exempt...