India: Case Laws (October 2016 - December 2016)

Bimla Kothari v. Unitech Limited[(2016) 138 SCL 213/75 (NCLT- New Delhi)]

The issues in this matter that were raised before the NCLT are as follows:

  • Whether the Companies Act 2013 applies to public deposits made on or before 1.04.2014?
  • Whether the petition filed by the depositors for recovery of their deposits made prior to 1.04.2014 under Section 73 would be maintainable or not?

The respondent company has accepted deposits but failed to make payment on the maturity. The holders being aggrieved party filed a petition before the NCLT for the recovery of their deposits.

NCLT held that Rule 19 of the Companies (Acceptance of Deposits) Rules, 2014 clarifies the applicability of the said provisions, prior to or after coming into force of the Companies Act, 2013. There the term deposit mean and include all the previous deposit accepted by the company.

The respondent contented that since the deposits were made before the enactment of the Companies Act 2013, and the petitioner's only recourse lies with the Civil Court as they do not come within the definition of "depositors" as per Companies Act, 2013. Hence, this particular act was not applicable and the petitioners were in violation of the provisions of Companies Act, 2013.

The NCLT on the final note allowed the petition and each and every depositor was entitled to recover their dues in execution proceeding together with costs and interest on their deposits. This would be without prejudice to the rights of the applicants to seek recovery of their dues from other tangible assets of the Respondent Company or take recourse to any other remedy available under the Civil law.

Michael Hart V. Ninestars Information Technologies Limited [(2016) 4 Comp LJ 7 (Mad)]

The issue in this matter before the Hon'ble High Court of Madras was to determine the maintainability of winding up petition filed on the ground that the company failed to pay its admitted liability to the petitioner and was unable to pay all its debts arising in the usual and ordinary course of business, consequently becoming as a commercial insolvent.

In the present case the respondent company had sought services of a foreign consultant by signing a consultation agreement. The consultant had regularly sent the invoices for the respective months.

The respondent company did not make payment even after agreed to settle the claim on receipt of legal notice from petitioner. Consequently, the petitioner sent statutory notice and filed the present petition when not received any response from respondent company.

The court came to a conclusion and held that no doubt, it is true, not that all the 'failures' to pay the debt, would fall under the purview of 'unable' to pay debt. But, at the same time if such 'failure' is not resulting out of any bona fide contention on the part of the company and, on the other hand, in spite of having sufficient opportunity to settle the dues, if the company fails to do so, this court can, going by the facts and circumstances of the case, certainly, being such 'failure' under the purview of 'unable' to pay the debts or due. Accordingly, the Hon'ble Court allowed the present petition for winding up of the company.

PAN Asia Advisors Limited and its promoter, Mr. ArunPanchariya v. SEBI

PAN Asia Advisors Limited ("PAAL") and its promoter Mr. ArunPanchariya ("AP") (collectively referred to as "Appellant") has appealed to Securities Appellate Tribunal ("SAT") against the order of SEBI dated June 20, 2013 wherein Appellant has been debarred from rendering services in connection with securities and accessing the capital market for a period of 10 years.

In the given case, PAAL was appointed as the lead manager to Global Depositories Receipt ("GDRs") issue by six (6) entities including Ashahi Infrastructure & Projects Ltd. ("Ashahi")outside India. It is pertinent to note that the Appellant had observed the same modus operandi with all the six (6) entities.By appointing PAAL as the the Lead Manager, Asahi decided to raise funds frominvestors outside India through the issuance of GDRs. Vintage, an overseas company owned by AP obtained a loan from European American Investment BankAG ("EURAM Bank") to acquire the GDRs to be issued by Ashahi. Correspondingly, Ashahi itself provided some form of security to the bank towards repayment of loan. It is pertinenttonote that the object of the loan was to fund Vintageto take down GDR issue of Asahi and the said loan amount was to be transferred. AP then transferred the GDRs to FIIs /sub accounts that were controlled by AP who, in turn, sold the shares received from the conversion of GDRs in the Indian securities marketto entities with whom AP was connected.

This internal arrangement has made it appear to the investors in India that foreign investors have found Ashahi to have great potential by subscribing to the GDR issuance and thus violated the provisions of SEBI Act, 1992 and the SEBI (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 ("PFUTP Regulations"). Accordingly, SEBI passed an order against the Appellant for committing fraud and misrepresentation.

Against the said order, PAN Asia and its promoter appealed to the SAT.SAT while upholding the SEBI order, were of the view that, creating such artificial impression in the minds of the investors that the GDRs of Ashahi had commanded considerable interest constitutes fraud on the investors under the PFUTP Regulations. Hence, no fault can be found with the decision of the SEBI in debarring the market access and rendering services for a span of 10 years. Thus, the appeal was dismissed.

SEBI v. Burren Energy India Limited & Others

Burren Energy India Ltd. ("Burren/Acquirer"), was incorporated under laws of England and Wales to acquire the entire shareholding of Unocal Bharat Ltd. ("UBL/PAC"). The shares of UBL were held by Unocal International Corporation ("UIL"). UBL did not carry out any business activity but, at the relevanttime, held 26.01% shareholding in an Indian listed company Hindustan Oil Exploration Company Limited ("Target Company").

Burren entered into a Share Purchase Agreement ("SPA") with UIL on February 14, 2005 ("Execution Date") to acquire entire shareholding of UBL and consequently indirectly acquired 26.01% shareholding in the Target Company, attracting the SEBI Takeover Regulations. Pursuant to SPA, Acquirer along with PAC made a Public Announcement ("PA") in the form of a Public Offer for purchase / sale of 20% shares of Target Company to the public on February 15, 2005. On the Execution Date, Acquirer appointed two directors to the board of UBL and UBL appointed the same two persons as directors in the Target Company. Such appointment was held to be in violation of Regulation 22(7) of Takeover Regulations, 1997 which states that an Acquirer or PAC cannot be appointed as directors of the Target Company whose shares are involved under open offer, during the offer period. SEBI thus imposed a penalty of 25 lakhs each on Acquirer and PAC. However on appeal to SAT, they opined that as there was no Memorandum of Understanding between the parties and hence the date of public announcement that wouldtrigger of the commencement of the 'offerperiod'. The order of SEBI was reversed and set aside taking into account that the Directors were appointed prior to the PA and hence cannot be held liable.

SEBI challenged the order of SAT before the Supreme Court ("SC") by way of an appeal on the contention that a MOU may also include a concluded contract / agreement between parties. Hence, even if parties had not executed an MOU, the offer period had to commence from Execution Date. SC held that in the event, no MOU has been entered into between the Acquirer and Target Company, but a SPA has been entered prior to making a PA, the date of SPA shall be considered as the date of commencement of offer period. Thus, SC set aside the order of SAT and upheld the order of SEBI.

Class Action Suits Can Be Filed Under The Consumer Protection Act 1986

Delay in handing over possession of the flat by the developer/builder has become a regular phenomenon and has time and again left the consumers helpless. The present case clears the ambiguity surrounding a very pertinent provision under the Consumer Protection Act 1986. The main issue before the National Consumer Dispute Redressal Commission [NCDRC] in the present case was "Whether a group of cooperative societies, firms, associations etc could join hands to file a joint complaint under Section 12 (1) (c) of the Consumer Protection Act 1986".

In the present case a group of aggrieved consumers [i.e the Complainant(s)] had filed a consumer complaint against the developer [i.e the Opposite Party]. Vide order dated May 24, 2016 the division bench of NCDRC referred the adjudication on the above mentioned issue to a larger bench for its decision. While interpreting the scope and ambit of Section 12 (1) (c), it was observed by the NCDRC that a complaint under Section 12 (1)(c) of the Consumer Protection Act 1986 can be filed only on behalf of or for the benefit of all buyers, having a common interest or a common grievance and seeking the same/identical relief against the same person. The bench further observed that a cooperative society or a group of cooperative societies, firms, an association shall not be entitled to file a complaint under Section 12 (1) (c) of the Consumer Protection Act 1986 unless the cooperative society itself is a consumer as defined under Section 12 (1) (d) of the Consumer Protection Act 1986. The NCDRC further opined that the decision in one complaint filed in a representative capacity will bind all the buyers of the project. Therefore once a complaint in a representative capacity is filed under Section 12 (1) (c), and requisite permission for filing the same is given by the Consumer Forum, the second individual complaint under Section 12 (1) (c) will be liable to be dismissed with liberty to seek impleadment in the complaint already instituted.

On the point of maintainability of the complaints filed in representative capacity, the NCDRC observed that a complaint under Section 12 (1)(c) of the Consumer Protection Act, 1986 is maintainable before the Commission where the aggregate of the value of the goods purchased or the services hired or availed of by all the consumers on whose behalf or for whose benefit the complaint is instituted and the total compensation, if any, claimed in respect of all such consumers exceeds Rs.1 crore. Further, the value of the goods purchased or the services hired and availed of by an individual consumer or the size, or date of booking / allotment / purchase of the flat would be wholly irrelevant in such a complaint where the complaint relates to the sale / allotment of several flats / plots in the same project / building. The present decision of the consumer forum will surely curb the multiplicity of consumer complaints and is an effective step towards faster adjudication of the consumer complaints.

No Discretionary Power To Extend Timelines Under The Commercial Courts Act

The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 ("Act") is an important step taken by the Government of India to expedite the adjudication of the commercial disputes.

In the present case Oku Tech Private Limited ("the Plaintiff") had filed a suit on November 21, 2015, pursuant to which Sangeeta Aggarwal & Ors ("the Defendant") were served with a notice on November 27, 2015. The outer limit of 120 days to file the written statement expired on March 26, 2016. However, the Defendants filed the written statement on May 7, 2016. Thereafter an application was filed by the Defendants seeking condonation of delay in filing the written statement. The Plaintiff while opposing the said application submitted that as per the relevant provisions of Code of Civil Procedure 1908, the Defendants had to file their written statement within 120 days from the date on which summons were received. Reference was further made to Section 16 read with the Schedule of the Act in terms of which the second proviso to Order V Rule 1 of the Code of Civil Procedure, 1908 as well as the proviso to Order VIII Rule 1 of the Code of Civil Procedure, 1908 have been amended to provide a binding timeline for the filing of a written statement, which cannot be extended at the discretion of the Court. However, it was contended by the Defendant that in view of Section 16 of the Act, the term "may" provides the Court a discretion to extend the time limit to file the written statement, and condone the delay in filing the written statement.

The Hon'ble Delhi High Court while interpreting the amendments made to the Code of Civil Procedure 1908 (i.e the substituted provisos to Order V Rule 1, Order VIII Rule 1 and Order VIII Rule 10) by virtue of the Act observed that the insertion of the substituted provisos gives a clear indication regarding the legislative intent to bar courts from having the discretion to grant any extension beyond the time limit stipulated under the statute. Considering an outer limit of 120 days from the date of service of summons has been prescribed in the Act, failure to file the written statement by the Defendant within such a stipulated time would amount to instant forfeiture of the right to file the written statement. The Court further opined that the very object of the Act and the amendments brought about in the Code of Civil Procedure 1908 were to be strictly adhered with. Therefore it could not be construed that the time period for filing a written statement in a commercial suit in terms of the Act can be extended.

Parties May Provide For The Provision Of An Appeal InArbitration Clause

An arbitration clause is of much significance in any agreement. The intent behind incorporation of such a clause in any agreement is to make the process and manner of resolution of a dispute abundantly clear. In the present case M/s. Centrotrade Minerals and Metal Inc. ("Centrotrade"), and the Hindustan Copper Limited ("HCL"), entered into a contract for sale of 15,500 Dry Metric Ton (DMT) of Copper Concentrate to be delivered at Kandla Port in the State of Gujarat. The same was delivered and the payments had been made. However, a dispute arose between the parties as regards the weight of the material supplied. Clause 14 of the contract (i.e the Arbitration Clause) entered into between the parties provided for an arrangement of Two-Tier Arbitration procedure. As per the said clause, all disputes were to be settled by the arbitration panel of the Indian Council of Arbitration ("ICA") in accordance with the rules of Arbitration of ICA, but in case of disagreement with the 'arbitration result' in India, either party had the right to a second arbitration in London (U.K.) in accordance with the Arbitral and Conciliation rules of the International Chamber of Commerce ("ICC"). It was further agreed in view of the said clause that the result of this second arbitration will be binding on both the parties.

The Arbitration clause was invoked by Centrotrade. The Arbitrator appointed by the ICA passed a nil award. Being aggrieved by the decision of ICA, Centrotrade in view of Clause 14 took matter to London where an award was made upholding the claim of Centrotrade. An application for enforcement of the award passed by ICC was filed by Centrotrade before the Court of District Judge at Alipore. The said application was transferred to the High Court of Calcutta which whilst allowing the application executed the award in favour of Centrotrade. Aggrieved by the decision of the High Court, HCL filed an appeal before the Supreme Court of India.

The main for consideration issue before the Supreme Court was "Whether a settlement of disputes or differences through a two-tier arbitration procedure as provided for in Clause 14 of the contract between the parties is permissible under the laws of India?"

HCL contended that the provisions of the Arbitration and Conciliation Act 1996 do not sanction an appellate arbitration and that the same is contrary to public policy. The Supreme Court of India observed that the appellate arbitration structure is not in contravention to the laws of India and the "arbitration result" (as used in Clause 14 of the contract) had all the elements and ingredients of an arbitration award. It was further observed that the fact that recourse to a court is available to a party for challenging an award at court does not ipso facto prohibit the parties from mutually agreeing to a second look at an award with the intention of an early settlement of disputes and differences outside court. It was further observed by the Apex Court held that "there is nothing in the Arbitration and Conciliation Act 1996 that prohibits the contracting parties from agreeing upon a second instance or appellate arbitration-either explicitly or implicitly".

Applicability Of The Arbitration And Conciliation (Amendment) Act, 2015 To Court Proceedings

The Arbitration and Conciliation (Amendment) Act, 2015 ("Amended Act") came into force on October 23, 2015. Ever since then, there has been immense ambiguity surrounding its applicability to proceedings initiated before the Amended Act came into force. Several Courts in India have given their interpretation on whether the Amended Act should apply retrospectively or prospectively to court proceedings arising out of arbitration proceedings initiated before the Amended Act came into force. In the present case Raffles Education Corporation Limited ("Raffles"), and Educomp Solutions Limited ("Educomp") entered into a Master Joint Venture Agreement dated 16.05.2008 which resulted in the incorporation of Educomp Raffles Higher Education Limited ("ERHEL") as a joint venture company.

The parties had agreed to resolve their disputes through arbitration seated in Singapore, with the governing law as Singapore Law, and arbitration to be conducted in accordance with the rules of the Singapore International Arbitration Centre ("SIAC"). Certain disputes arose between parties wherein the Petitioner proceeded to initiating arbitration in Singapore and also filed for the appointment of an emergency arbitrator under the SIAC rules. The emergency arbitratorappointed by SIAC passed an Interim Emergency Award in the favor of Raffles. Soon an application before the High Court of the Republic of Singapore ("SHC") under Section 12 of the International Arbitration Act was filed for the enforcement of the Emergency Award against Educomp. Raffles thereafter secured an enforcement order dated 04.02.2016 against Educomp.

Educomp acted in contravention of the Emergency Award which led to the filing of a petition before the High Court of Delhi by Raffles under section 9 of the Arbitration and Conciliation Act, 1996 seeking interim reliefs similar to what had been granted under the Emergency Award. In the present case, the main issue for consideration before the Delhi High Court was whether the Petition filed by Raffles was maintainable per se and whether the Amended Act should be interpreted as not applicable to court proceedings for the reason that the same would make the Amended Act a retrospective legislation.

Educomp contended that Part 1 of the Arbitration and Conciliation Act 1996 is inapplicable to proceedings held outside India and that by choosing Singapore as the Seat, the parties have impliedly excluded the applicability of Section 9 of the Arbitration and Conciliation Act 1996 and that therefore the present Petition is not maintainable. It was further contended that the Amended Act is inapplicable to the present arbitral proceedings by virtue of Section 26 of the Amended Act, as the arbitral proceedings had commenced prior to the date of commencement of the Amended Act. On the contrary, Raffles relied on the exception provided by the Amended Act (under Section 2(2)) which clearly states that Sections 9, 27, 37(1)(a) and 37(3) from Part 1 of the Amended Act would be applicable for foreign seated arbitrations, subject to an agreement to the contrary.

Keeping in view the contentions of both the parties, the Delhi High Court observed that the Amended Act would be applicable to all arbitration-related court proceedings commenced after October 23, 2015 even if the related arbitration is instituted prior to October 23, 2015. The Court relied on Section 26 of the Amended Act, which in its easiest interpretation provides that the Act will not be applicable to the arbitral proceedings commenced before the Amended Act, but it would apply to proceedings in relation to arbitral proceedings commenced on or after the commencement of the Amended Act. The word 'in relation' is the key word and it covers all the proceedings which are connected to arbitral proceedings, including court proceedings. The Court therefore allowed the present Petition and made it clear that choice of a foreign law or a foreign seat or foreign institutional rules does not amount to implied exclusion of Section 9 of the Arbitration and Conciliation Act 1996.

In view of the divergent views taken by the High Courts across the country on the applicability of the Amended Act, the question of law regarding the retrospective applicability of the Amended Act to arbitral proceedings vis-à-vis court proceedings however, is currently pending adjudication before the Supreme Court.

No Wage Discrimination Between Permanent And Temporary Employees Henceforth

The present case culminates from the contradicting stand taken by the Punjab & Haryana High Court in various cases regarding the pay structure of temporary employees/ ad-hoc workers. The main issue before the Supreme Court was whether temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like) are entitled to the same wages as that of permanent employees, if they discharge similar duties and responsibilities as that of permanent employees.

The Supreme Court laid emphasis on the concept of "Equal pay for equal work" and observed that an employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities in a welfare state. Further considering India is a signatory to the International Covenant onEconomic, Social and Cultural Rights, 1966, there is no escape from the obligations thereunder in view of the different provisions of the Constitution. While analyzing the issues faced by the temporary employees, the Supreme Court held that :-

  1. "If the temporary employees / ad-hoc workers are not paid same wages as what a permanent worker gets it would be considered as violation of Article 14 (Right to equality) in the eyes of the law.
  2. The right of equal wages is also backed by Article 39 which makes it states responsibility to pay equal wages for equal work.
  3. But for the same the kind of work done by temporary employee should be similar, quality of work done by him should be similar to that of a permanent employee, and the temporary employee must possesses the qualifications prescribed for the particular post.
  4. The government cannot deny a temporary employee at least the minimum wage being paid to a permanent/regular employee along with the allowances and other benefits.
  5. There should be no different payment rates for doing the same work merely for classification under unskilled, semi- skilled, or skilled workers. The same shall be discriminatory and in violation of Article 14 and 16."

The present decision provides relief to temporary workers and protects their fundamental and legal rights. The decision further establishes that the mere fact that a person is engaged on a temporary basis shall not hinder his ability to earn the amount of wages as earned by a regular worker.

Footnotes

2 Ambrish Kumar Shukla & 21 Ors Vs Ferrous Infrastructure Private Limited Consumer Case No. 97 of 2016
3 Oku Tech Private Limited Vs Sangeeta Agarwal & Ors CS(COMM) 1522/2016
4 Centrotrade Minerals & Metal v. Hindustan Copper Civil Appeal No 2562 of 2006
5 Raffles Design International India Pvt Ltd. vs. Educomp Professional Education Ltd. O.M.P.(I) ( COMM.) 23/2015 & CCP (O) 59/2016, IA Nos. 25949/2015 & 2179/2016
6 State of Punjab and Ors. v. Jagjit Singh and ors Civil Appeal No. 213 of 2013before the Supreme Court of India
7 LPA no. 337 of 2003, decided on 7.1.2009 ; LPA no. 1024 of 2009, decided on 30.8.2010 and CWP no. 14796 of 2003

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